Partly allowed

Ram Kumar and Ors. v. State

Rajasthan HC22 Jul 2022CRLA/267/1992

Case brief

AI extract

What is this about?

This criminal appeal challenged a conviction for culpable homicide not amounting to murder and grievous hurt. The High Court upheld the conviction but partially allowed the appeal by reducing the sentence to the period already undergone by the appellants, citing long trial delay and existing cross-case.

What did the court decide?

Sentence reduced to period already undergone; fine maintained; two months time granted to deposit fine; appellants granted bail.

Ram Kumar and Ors. Vs State — Murder and Culpable Homicide | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Appeal No. 267/1992

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Prabhudayal S/o Ram Kumar

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Amar Singh S/o Ram Kumar

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by caste Kalal, R/o Baaya Tehsil Taranagar, Distt. Churu

----Appellant

Versus

State of Rajasthan

		----Respondent
For Appellant(s)	:	Mr. D.S. Gharsana with Mr. Suresh Nehra
For Respondent(s)	:	Mr. Anil Joshi, GA-cum-AAG Mr. A.R. Choudhary, P.P.

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HON'BLE MR. JUSTICE MANOJ KUMAR GARG

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Judgment

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Order Reserved on : 19/07/2022 Date of pronouncement: 22/07/2022

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Instant criminal appeal under Section 374(2) Cr.P.C. has been filed against the judgment and order dated 31.07.1992 passed by learned Additional District and Sessions Judge, Churu (hereinafter referred to as 'the trial Court') in Sessions Case No. 22/1992(21/1988), whereby the trial Court has convicted and sentenced the appellants as under :-

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S.No.	Name of accused	Offence	Punis	hment
1.	Prabhudayal	304-II IPC	Five impris	years’ rigorous onment and fine of
			Rs.20 fine mont	0/-, in default of to undergo one h R.I
		325/34 IPC	Two	Year’s rigorous

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(2 of 9) [CRLA-267/1992]

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		imprisonment Rs. 200/-, in	and fine of default of
		fine, to un month R.I	dergo one
	323/34 IPC	One month imprisonment Rs. 100/-, in payment of undergone sev	rigorous and fine of default of fine to en days R.I
2. Amar Singh	304 II IPC	Five years’ imprisonment Rs.200/-, in	rigorous and fine of default of
		fine to un month R.I	dergo one
	325 IPC	Two Year’s imprisonment Rs. 200/-, in fine, to un month R.I	rigorous and fine of default of dergo one
	323/34 IPC	One month imprisonment Rs. 100/-, in payment of undergone sev	rigorous and fine of default of fine to en days R.I

¶17

The concise facts of the case are that a First Information Report was registered on the basis of oral information of complainant Sant lal to the effect that his water tank and that of Ram kumar is situated at a distance of 200 pavandas from the village. It is alleged that the accused persons had raised some illegal constructions in the catchment area. When the complainant went on the post the accused persons threatened him. In the evening when the complainant alongwith his father Radhakishan and uncle Mahaveer and son Suresh went to the spot, the accused persons who were armed with lathi attacked his father Radhakishan. Suresh also sustained injuries on his hand.

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On the basis of aforesaid report, FIR was registered about commission of offences punishable under Sections 307, 323, 34 IPC. During investigation, the injured Radhakishan succumbed to

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(3 of 9) [CRLA-267/1992]

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his injuries. After due investigation, police filed charge sheet against accused-persons for offence under Section 302, 323, 325 IPC. The case was transferred to the court of Addl. District and Sessions Judge, Churu where the charges of the case were framed for offence under Section 302, 325/34, 323/34 IPC against accused Ram Kumar, for offence under Section 302/34, 325/34 and 323/34 IPC against accused Amar Singh and for offence under Sections 302/34, 325 and 323/34 IPC against accused Prabhudayal. The appellants denied the charges and claimed trial.

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During the course of trial, the prosecution examined 12 witnesses and various documents were also exhibited. Thereafter, statement of appellants under section 313 Cr.P.C was recorded. No witness was examined on the defence side.

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After scrutiny of the material on record and evidence produced by the prosecution as well as statement of accused under Section 313 Cr.P.C., learned trial Court vide judgment dated 31.07.1992 convicted and sentenced the appellants as stated hereinabove.

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Being aggrieved with the judgment and order passed by the Trial Court, the accused-appellants have preferred this criminal appeal before this Court.

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Learned counsel for the accused-appellants contended that the incident relates back to year 1988 and after this occurrence, the complainant party murdered the accused appellant Ram Kumar and a cross FIR was also registered against the complainant party. It is argued that a specific allegation has been made by the injured and other witnesses that only accused Ram kumar inflicted head injury by lathi to the deceased. As per postmoretem report also and statement of PW/4 Dr. Sahadev

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(4 of 9)

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[CRLA-267/1992]

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Singh, deceased received single injury on his head which was the cause of death which has been assigned to accused Ram kumar who has now expired. All the other injured witnesses received simple injuries by blunt weapon. Only injured Suresh Kumar received grievous injury which is also on his non-vital party of body i.e. metacarpal bone. It is argued that a compromise has also arrived at between the appellants and complainant party and the compromise deed has been filed before this Court. Learned counsel for the appellant makes a submission that the incident relates back to year 1988 and the appellant Prabhudayal has remained in custody for a period of six months and Amar Singh has undergone incarceration for a peirod of five months in custody. If this Court does not deem it a case fit for acquittal, then without making any interference on merits/conviction, the sentence awarded to the present appellants may be substituted with the period of sentence already undergone by them.

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Learned Public Prosecutor appearing on behalf of the respondent-State vehemently opposed the prayer made by learned counsel for the accused-appellants and submitted that there is no reason to disbelieve the prosecution evidence and learned Trial Court has rightly convicted and sentenced the accused-appellants. He prayed that the impugned judgment and order passed by the Trial Court may be sustained and sentence awarded to the accused-appellants by the learned Trial Court be maintained by this Court.

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I have considered the submissions of the learned counsel for the accused-appellants as well as learned Public Prosecutor and also gone through the entire record.

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(5 of 9)

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[CRLA-267/1992]

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I have perused the statements of prosecution witnesses and find that the injured witnesses as well as other witnesses specifically state that the deceased appellant Ram Kumar had inflicted head injury to the deceased. According to the postmortem report as well as statement of PW/4 Dr. Sahadev Singh, the deceased received only single injury on his dead which was the cause of death. The appellant Ram kumar has already expired and the injuries received by injured which were inflicted by present appellants Prabhudayal and Amar Singh are simple in nature except one injury on Suresh Kumar which is although grievous but on non-vital party of the body. There are cross-cases between the parties and FIR has been filed against the complainant party which is exhibited as Ex.D/4 in which challan was present against the complainant party. It has also come on record that a compromise has arrived at between the parties. So far as the sentence part is concerned, a sentence should neither be too lenient nor disproportionately severe. The former looses its deterrent effect and the latter has a tendency to tempt the offenders to commit a more serious offence. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Punishment to be proper, effective and purposeful must fit not only the crime but also the criminal.

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Since it is case of causing injuries by blunt weapon and appellants have remained behind the bars for some time so also undergone mental as well as physical agony of protracted trial for last thirty four years, leniency can be shown to some extent.

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(6 of 9)

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[CRLA-267/1992]

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Hon'ble Apex Court in Surinder Singh Vs. State (Union Territory of Chandigarh) : 2022 (1) BLJ 366 wherein it was observed as under:-

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"Appellant-Surinder Singh has laid challenge to the judgment dated 19th May 2010 of the High Court of Punjab & Haryana, whereby, the order of his conviction and sentence dated 25th July 2006 passed by Learned Additional Sessions Judge, Chandigarh was confirmed. The Appellant has been convicted Under Section 307 of the Indian Penal Code, 1860 (hereinafter 'IPC') and Section 27 of the Arms Act, 1959 (hereinafter, 'Arms Act'), and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently.

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We are thus of the considered opinion that whilst motive is infallibly a crucial factor, and is a substantial aid for evincing the commission of an offence but the absence thereof is, however, not such a quintessential component which can be construed as fatal to the case of the prosecution, especially when all other factors point towards the guilt of the Accused and testaments of eye-witnesses to the occurrence of a malfeasance are on record.

¶39

The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited Under Section 5 of the Arms Act. It appears that the

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(7 of 9)

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[CRLA-267/1992]

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Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable lawabiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence Under Section 27, without proving the misdemeanour Under Section 5 or 7 of the Arms Act. At best, it could be a 'misconduct' under the service rules, the determination of which was not the subject of the trial. 31. In light of the afore-stated discussion, we find that the order of the Trial Court in convicting the Appellant or of the High Court in maintaining such conviction Under Section 27 of the Arms Act, is unwarranted and unjust. Accordingly, the Appellant is acquitted of the charge Under Section 27 of the Arms Act.

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….. Adverting to the facts of the case, in hand, we are of the considered view that at this stage, the sentence awarded to the Appellant is no longer in degree to the crime which he has committed. Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors:

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a. No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant. Hence, the culpability of the offender in such situations is less than that which is ascribed in premeditated offenses as the commission of planned illegal acts denotes an attack on societal values with greater

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(8 of 9)

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[CRLA-267/1992]

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commitment and continuity in comparison to spontaneous illegal acts.

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b. Even though the factum of injury may not have a direct bearing on a conviction Under Section 307 Indian Penal Code, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 Indian Penal Code, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.

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c. Appellant has already undergone a sentence of 3 months and 19 days. Additionally, despite the occurrence taking place in 1999, there is no indication that Appellant has been involved in any untoward activity before or after the incident. This highlights the Appellant's good character and indicates that the incident can be interpreted as an isolated lapse of judgment. Further, the Appellant's clean postincident behaviour suggests that he is rational individual who is capable of responding to the social censure associated with the offence. Hence, the passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence.

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d. Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the present criminal incident might lead one to assume. This is not to say that courts should draw up a social balance sheet when sentencing, but only to take these

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(9 of 9)

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[CRLA-267/1992]

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positive social contributions as a factor for mitigation of sentence.

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e. Lastly, it is to be noted that the Appellant was suspended in the year 1999 and has also been subsequently dismissed from service in the year 2007. Hence, this should also be considered as a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction."

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Hon’ble Apex Court in the case of ‘Haripada Das Vs. State of W.B. : (1998) 9 SCC 678 has observed as under:-

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"considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 171-1986, we feel that the ends of justice will be met in the facts of the case if the sentence is reduced to the period already undergone"

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Accordingly, the appeal is partly allowed. While maintaining the appellants’ conviction and sentence for offence under Sections 304-II, 325/34, 323/34, 325 IPC, the sentence awarded to them is reduced to the period already undergone by them. The fine imposed by the trial court is not interfered with. Two month’s time is granted to deposit the fine before the trial court. Appellants are on bail. Their bail bonds shall stand discharged on deposition of fine. The record of the trial court be sent back forthwith.

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(MANOJ KUMAR GARG),J

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87-BJSH/-

Ram Kumar and Ors. v. State

Case brief

What is this about?

What did the court decide?

Ram Kumar and Ors. v. State

Case brief

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What did the court decide?

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