Partly allowed

Ramawtar and Ors. v. State

Rajasthan HC3 Jul 2023CRLA/87/1994

Case brief

AI extract

What is this about?

In appeal against conviction and sentence for assault, the High Court acquitted one appellant of life-threatening charges due to lack of evidence linking him to the act and acquitted another of serious charges where intent wasn't established. It partially allowed appeals, convicting two for specific assault sections and one for minor assault, while granting probation to one and adjusting sentences

What did the court decide?

Nathuram acquitted of all charges. Ramawtar convicted for Sections 326 and 324 IPC with reduced sentence and fine. Subhash convicted for Section 323 IPC and granted probation.

Ramawtar and Ors. Vs State — Murder and Culpable Homicide | Rajasthan HC (2023)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Criminal Appeal No. 87/1994

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Ramawtar s/o Shri Nathuram @ Natthuram

¶4

Subhash S/o Shri Nathuram @ Natthuram

¶5

Nathuram @ Natthuram @ Natthu Ram S/o Sh. Budharam All resident of Nabipura, P.S. Sadar Fatehpur, District Sikar.

¶6

----Appellant

¶7

Versus

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State of Rajasthan, through PP

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----Respondent

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For Appellant(s) : Mr. Harendra Singh with Mr. Hemang Singh For Respondent(s) : Mr. Imran Khan, PP Mr. Sushil Pujari

¶11

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Judgment / Order

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Date of Reserve: 03/05/2023 Date of Pronouncement:03/07/2023

¶14

The instant criminal appeal is preferred aggrieved of order of conviction and sentence dated 11.02.1994 in Sessions Case No. 34/1993 passed by learned Additional Sessions Judge, Sikar whereby appellant Ramawtar was convicted for offence under Section 307, 451, 324, 323 IPC whereas Subhash and Nathuram @ Natthu were convicted for offence under Section 307/34, 324/34, 451, 323 IPC and sentenced accordingly along with fine.

¶15

The fact of the matter is that FIR No. 34/1993 (Ex.P-5) was registered at P.S. Fatehpur by Parmeshwar s/o Ramdayal whereby it was alleged that Ramawtar with Barchi and Subhash with Lathi came to his house and Ramawtar assaulted with Barchi on head of Parmeshwar whereas Subhash and Nathuram @ Natthu assaulted

¶16

(2 of 16)

¶17

[CRLA-87/1994]

¶18

with stick and on hue and cry, his father Ramdayal, Gaura and Mangejaram rescued him failing which these three persons would have killed him. On the basis of this report, investigation was conducted and a charge-sheet against Ramawtar and Subhash under Section 307, 324, 323 and 451 IPC was filed before the Court of ACJM, Fatehpur Shekhawati and on the basis of material available on record, the court also took cognizance against Nathuram @ Natthu and committed against all three persons to Sessions Court for trial.

¶19

After receipt of this case for trial, learned Additional Sessions Judge framed charges under Sections 451, 307 or 307/34, 324 or 324/34, 323 or 323/34 of IPC. A total number of eight witnesses were examined by the prosecution and 13 documents were exhibited. The appellants were examined under Section 313 Cr.P.C., wherein they had chosen to submit defence evidence. In defence DW-1 Sheeshram, was examined. After hearing both the sides, learned trial court had convicted all the three persons and sentenced them as under:-

¶20

"(i) The accused appellant Ramavtar has been convicted and sentenced

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for offence U/S 307 IPC to 5 years R.I. and fine of Rs.1,000/- and in default of payment of fine he will have to further undergo 3 months S.I.

¶22

-For offence under section 324 IPC to 6 months S.I. and fine of Rs.200/- and in default of payment of fine he will have further to undergo 1 month S.I.

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-For offence under section 451 IPC to 1 year S.I. and fine of Rs.200/- and in default of payment of fine he will have to further undergo one month S.I. and

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-For offence under section 323/34 IPC to Rs.100/- as fine and in default of payment of fine 7 days S.I.

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(ii) Accused Appellant Subhash and Nathuram has been convicted and sentenced as below:-

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(3 of 16)

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[CRLA-87/1994]

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-For offence under section 307/34 IPC to 5 years R.I. and fine of Rs.1,000/- and in default of payment of fine each will have further to undergo 3 months 1. S.I.

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-For offence under section 324/34 IPC to 6 months S.I. and fine of Rs.200/- and in default of payment of fine each will have further to undergo 1 month S.I.

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-For offence under section 451 TPC to 1 year S.I. and fine of Rs.200/- and in default of payment of fine each will have further to undergo one month S.I. and

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-For offence under section 323 IPC to Rs.100/- as fine and in default of payment of fine each will have further to undergo 7 days S.I.”

¶32

Learned counsel for the appellant while relying upon the judgments in case of Chanan Singh & Ors. Vs. State of Rajasthan (Criminal Appeal No. 573/2022), Sutta @ Tejuddin Vs. State of Rajasthan (S.B. Criminal Revision Petition No. 1331/2012), Ramlal and Ors. Vs. State of Rajasthan (S.B. Criminal Revision Petition No. 902/2003), Matibar Singh vs. State of UP (Criminal Appeal No. 654/2022) and Lakhvir Singh Vs. State of Punjab & Another (arising out of SLP (Crl) Nos. 6283-6284/2020) submitted that if medical evidence on record clearly indicated that injuries inflicted upon victim were not sufficient to cause death in ordinary course of nature, then the injuries would not fall within the ambit of Section 307 IPC. He would submitted that in this case, the sole injured was PW-2 (Parmeshwar) who named Ramawtar for causing injuries by sharp edged weapon but PW-1 (Dr. S.S. Verma) who prepared the injury report Ex.P-1 of PW-2 and further on the basis of X-ray (Ex.P-2, P-3 and P-4) opined that injury No.1 i.e. incised wound with clean cuts on right parietal region was grievous and caused by sharp edged weapon but rest

¶33

[CRLA-87/1994]

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(4 of 16)

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of the injuries were simple in nature. He further submitted that in the deposition of PW-1, nowhere it was suggested that injuries sustained by Paremeshwar were sufficient enough to cause death in ordinary course of nature. He further referred the crossexamination of this PW-1 and submitted that this witness had admitted that injury No.1 was not sufficient to cause death so this injury was not dangerous to life. He further submitted that in oral report, registered by Parmeshwar, involvement of two appellants were alleged but in his statement this PW-2 attributed injuries upon all three appellants, improvement from original version recorded by the police. He further submitted that there was no eye-witness to the incident as other persons like Mangujaram, Gaura @ Shyana and Ramdayal had reached the spot after the incident wherefore there was no eye-witness to the incident. He further referred the statement of PW-7 (Investigating Officer) to submit that there were no bloodstains on the site wherein incident took place and also there were no bloodstains on any of object recovered from the appellants. He further submitted that in this case, police had filed charge-sheet against two appellants but learned trial court on the basis of FIR only took cognizance against third appellant though there was no material to substantiate the involvement of third appellant-Nathuram @ Natthu. He further submitted that learned trial court had ignored the material contradictions in arriving at a conclusion as no injury, which may be life-threatening was caused upon PW-2 Parmeshwar, therefore no case under Section 307 was made out but learned trial court ignoring the material on record, convicted all three appellants. He

¶36

[CRLA-87/1994]

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(5 of 16)

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further submitted that there were material contradictions on record but same were ignored by learned trial court. At last, he submitted that learned trial court had ignored defence evidence which was available on record wherein it was conclusively proved that Nathuram @ Natthu was not present on crime scene to commit the alleged offence. Alternatively, he suggested that a view of leniency be taken against appellant(s) as there were no criminal antecedents against any of them. He further relied upon the judgments, wherein benefit of probation was granted after conviction.

¶39

Aforesaid contentions were opposed by learned Public Prosecutor and submitted that the reasoning of conviction is supported with material on record.

¶40

Heard learned counsel for appellant and learned Public Prosecutor. Perused the material available on record and also perused the judgments cited by learned counsel for appellant.

¶41

A perusal of FIR (Ex.P-5) indicated that it was registered on information of PW-2 wherein all the three persons were named. Besides these appellants, names of Ramdayal, Gaura and Mangejaram were also mentioned as the persons who reached the spot after hearing hue and cry of injured. Prosecution had examined Mangejaram as PW-3, Ramdayal as PW-4 and Guara as PW-6. Besides above, no other witness was examined in support of PW-2. When the incident was started, it was only PW-2 who was there and after certain blows by appellant(s), he made hue and cry and three persons (PW-3, PW-4 and PW-6) reached to rescue him. This statement makes it clear that these three

¶42

[CRLA-87/1994]

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(6 of 16)

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persons had seen partial incident and moreover PW-2, PW-3, PW-4 and PW-6 are closely related to each other. Therefore, while reading and evaluating evidence of interested witnesses, the Court has to be cautious. The presence of these 4 persons were found place in Exhibit P-5(FIR) but in any case we have to evaluate the evidence with great caution.

¶45

In this case, PW-2 in his deposition stated that Ramawtar made two assault on head with Barchi whereas Nathuram @ Natthu assaulted on shoulder with Dang(stick), then this PW-2 made hue and cry and PW-3, PW-4 and PW-6 came on the spot but appellants had fled away. The narration of event by PW-2 clearly indicated that no specific attribution was made upon involvement of Nathuram @ Natthu. During cross-examination PW-2 specifically denied the fact that Nathuram @ Natthu and Ramawtar were not present on spot and they had not participated in the incident. PW-3 (Mangeja Ram) who is maternal uncle of PW2 had named and attributed two injuries inflicted by Ramawtar but again he denied that Nathuram @ Natthu and Ramawtar were not involved in the incident. PW-4 Ramdayal and PW-6 Gaura again named all these three appellants though Gaura had admitted that she can’t specify role and attribute injuries.

¶46

Having considered aforesaid evidence, Parmeshwar (PW-2) had attributed injuries upon Ramawtar and Subhash but he did not uttered a single word about assault made by Nathuram @ Natthu. PW-1(Dr. S.S. Verma) who examined PW-2 clearly indicated that there were five injuries out of which injury number 1 to 3 were caused by sharp edged weapon but injury number 4

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(7 of 16)

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[CRLA-87/1994]

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and 5 which were abrasion and bruise were caused by blunt object. The evidence of PW-2 and also Exhibit P5 make it clear that sharp edged weapon was with Ramawtar only and statement of PW-2 make it clear that Ramawtar had inflicted two blows though as per PW-1 two injuries were sharp injuries and two are bruises and one abrasion. After considering aforesaid and also the fact that PW-2 and appellants were neighbours and their courtyard was separated by a fence, there is a likelihood that the involvement of Nathuram @ Natthu at whom there was no attribution of injury by PW-2 might have been falsely implicated. Though there was evidence of DW-1 Sheeshram in favour of Nathuram @ Natthu and Ramawtar but involvement of Ramawtar was established from oral evidence and also from Ex.P-5, therefore this deposition of DW-1 is not of much help for Ramawtar. After considering the aforesaid, involvement of Nathuram @ Natthu is somewhat doubtful. Even in Ex.P-5, Parmeshwar had attributed one blow on head by Nathuram @ Natthu but in his statement before the Court he did not corroborated the same. In this case Barchi was recovered by PW-7 after information of Ramavtar was recorded as Ex.P-12 under Section 27 of the Indian Evidence Act and the stick was recovered from Subhash after information as Ex.P-13 but there was no recovery as IO did not found involvement of Nathuram @ Natthu and he was not charge-sheeted. The injured was examined under Section 161 Cr.P.C. by PW-7 and in his statement was exhibited as Ex.D-1 wherein also two injuries were attributed upon Ramawtar and two upon Subhash but no injury was attributed to Nathuram

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[CRLA-87/1994]

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(8 of 16)

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@ Natthu. In the statement, Parmeshwar, made clear that Nathuram @ Natthu arrived at the spot after the assault and name was included in a hurry. In this case, when we consider Ex.P-5, Ex.D-1 and deposition of PW-2 and PW-7 then involvement of Nathuram @ Natthu is doubtful and doubt created was enough to conclude that Nathuram @ Natthu was not involved in the incident that is why no attribution or active involvement was alleged by PW-2 in his statement. The statement recorded of PW-2 as Ex.D-1 was further confirmed by PW-7, therefore Nathuram @ Natthu was entitled to get benefit of doubt. Learned trial court had committed serious error in drawing a conclusion of conviction of Nathuram @ Natthu for the offence under Section 307/34, 324/34, 323 and 451 IPC.

¶53

When we consider involvement of Ramawtar and Subhash, the fact of the matter is that appellants and injured were neighbour sharing common wall of courtyard meaning thereby the presence of appellants on the spot were not a surprise so in this case as deposed by PW-2, there was dispute of fence between the parties and for that appellants had visited courtyard of injured meaning thereby either appellants were invited or they were permitted to visit. Therefore, there was no question of house trespass as defined under Section 451 IPC, as the entry to the premise of PW-2 was initially not with intent to commit offence or to intimidate PW-2. In this case though use of Barchi which was not ordinarily used as agricultural tool but some times used and stick also an ordinary thing and normally kept in rural household. The evidence of PW-2 is enough to come to conclusion that

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(9 of 16)

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[CRLA-87/1994]

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appellants with intention to commit any offence committed house trespass therefore learned trial court has committed error in convicting appellants under Section 451 IPC.

¶57

Herein, sequence of evidence as narrated by PW-2 and also from his statement recorded by police clearly indicated that for a dispute, Ramawtar and Subhash had visited the Gwadi of Parmeshwar. There was no evidence that both had entered Gwadi with preparation or common intention or with meeting of mind to assault PW-2 otherwise he could have cried at the time of entry. There was no verbal exchange and no further evidence of verbal fight which again makes it clear that without any heated exchange, the incident started meaning thereby it was so sudden that it lasted for a few minutes only. When other three persons had reached at the spot, by that time the incident was over which is why discrepancies and contradictions were present in the statement of PW-3, PW-4 and PW-6 regarding sequence of events. Therefore we can conclude that there was no evidence to establish common intention of appellants i.e. meeting of mind between appellants to assault injured PW-2 Parmeshwar. Hence appellant can be made liable for the incident for the injuries which they had inflicted.

¶58

As per PW-2, blows were caused by Ramavtar with Barchi, sharp edged object and no other person was involved in causing injured by sharp edged object, therefore learned trial court had committed no error in arriving at conclusion that Ramawtar used barchi in causing blow upon injured PW-2. These two blows which were marked as injury Nos. 1 and 2 on right and left parietal and

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[CRLA-87/1994]

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(10 of 16)

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out of which injury No,1 was found to be grievous. PW-1 in his deposition clearly indicated that injury No.1 was not dangerous to life and not sufficient to cause death.

¶62

Learned counsel for appellants had referred the judgment of

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Chanan Singh & Ors. Vs. State of Rajasthan (supra) wherein Co-ordinate Bench of this Court had clearly held that to prove the charge for the offence under Section 307 IPC, prosecution has to establish that either this injury was done with intention or with knowledge of causing death or the injury would have been sufficient in ordinary course of nature to cause death. Therefore either there must be intention of appellant to kill injured or sufficient bodily injury i.e. injury No.1 must be sufficient to cause death in ordinary course of nature. In present case when injury No.1 was caused by sharp edged object, same was found to be grievous but it was not sufficient to cause death or injury was not dangerous to life, therefore the evidence of PW-1 was not sufficient to prove the charge under Section 307 IPC. Again this opinion was further fortified from the judgment of this Court in cases of Sutta @ Tejuddin Vs. State of Rajasthan (supra) and Ramlal and Ors. Vs. State of Rajasthan (supra) therefore charge under Section 307 is not made out from the material available on record.

¶64

In view of evidence of PW-1, it is clearly established that PW2 Parmeshwar had sustained one grievous injury on head and one simple injury caused by sharp edged weapon and also one simple injury but he also sustained three simple injuries caused by blunt object. The evidence of PW-2 before the court clearly indicated

¶65

[CRLA-87/1994]

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(11 of 16)

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that he attributed only three blows though there were five injuries as per Ex.P-1. The evidence on record clearly suggested that it was appellant-Ramavtar, who assaulted with Barchi (Sharp Edged) and he inflicted two blows, therefore he was responsible for causing both injuries with sharp edged object. After considering the aforesaid, injury No.1 is grievous with sharp object therefore it falls within provisions of Section 326 of IPC and injury No.2 falls in the definition of Section 324 IPC whereas remaining injuries falls within ambit of Section 323 IPC hence, in this case, appellant Ramawtar who inflicted injury Nos. 1 and 2 was guilty under Sections 326 and 324 IPC.

¶68

The evidence and material available on record further suggested that other appellant Subhash assaulted PW-2 Parmeshwar with blunt object though three simple injuries were sustained by PW-2 as per IR Ex.P-5, but all were attributed only on Subhash. Thus, appellant Subhash was guilty for offence under Section 323 IPC. As there was no common intention of appellant Ramawtar and Subhash to assault PW-2, hence for the acts committed by Ramawtar, Subhash cannot be held liable and for the act of Subhash, Ramawtar cannot held liable. Therefore, individual acts have to be assessed and on this basis, liability upon appellants can be fastened else not. Therefore learned trial court has committed error in conviction in invoking provision under Section 34 IPC for the acts committed by Ramawtar and vice-versa.

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As a result from aforesaid discussion, appellant Nathuram @ Natthu was entitled for benefit of doubt, so his appeal is liable to

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[CRLA-87/1994]

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(12 of 16)

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be allowed whereas appeal of Ramawtar and Subhash is also liable to be partially allowed as Ramawtar is found guilty for offence under Sections 326 and 324 IPC whereas Subhash under Section 323 IPC and Ramavtar is entitled to be acquitted from the offence under Sections 307, 323 and 451 IPC, whereas Subhash under Sections 307/34, 324/34 and 451 IPC.

¶73

In this case, two judgments of Hon'ble Supreme Court were cited by learned counsel for appellant and one of them is Matiba Singh Vs. State of UP (supra) wherein appellant was juvenile and later on when his conviction was upheld, his age was 55 years and Hon'ble Supreme Court opined that sending him to an observation home for possible reformation, therefore set aside the sentence. In this case, this judgment was submitted in support of Subhash to buttress that as the date of birth of Subhash is 05.02.1997 and on the date of incident, he was around 16 years of age. But in this case, Subhash was found guilty under Section 323 IPC. The judgment of Hon'ble Supreme Court in case of Lakhvir Singh Vs. State of Punjab (supra) was cited for benefit of probation under the Probation of Offenders Act for all the appellants. In case of Lakhvir Singh Vs. State of Punjab (supra), Hon'ble Supreme Court released the accused on probation as they were under 19-21 years of age on date of incident.

¶74

After considering the entirety of the matters, it is fit case for Subhash to release him on probation. As regard to Ramavatar is concerned, as he was found guilty under Sections 324 and 326 IPC, we have to consider the provisions of law as well.

¶75

[CRLA-87/1994]

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(13 of 16)

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Section 4 of the Offenders Act provides that:-

¶78

“4. Power of court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

¶79

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

¶80

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

¶81

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.

¶82

(4) The court making a supervision order under subsection (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

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(5) The court making a supervision order under sub section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one

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(14 of 16) [CRLA-87/1994]

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copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.”

¶86

The punishment under Section 326 IPC is either imprisonment for life or imprisonment which can be extended to 10 years.

¶87

Though it is triable by Magistrate of First Class, Hon'ble Supreme Court in the case of Lakhvir Singh Vs. State of Punjab (supra) had referred judgment of State of MP Vs. Vikram Das (2019) 4 SCC 125, Satyabhan Kishore Vs. State of Bihar AIR (1972) 3 SCC 350 observed that the appellants were found guilty of offences not punishable with death or imprisonment for life. In this case, appellant Ramawtar was found guilty for offence under Section 326 IPC, therefore extension of probation under Section 4 of the Probation of Offender Act is not possible.

¶88

Now comes the question regarding leniency as prayed by learned counsel for appellant Ramawtar. In this case Ramawtar had spent initially six days in custody i.e. from 25.06.1993 to 30.06.1993 and thereafter from 11.02.1994 to 19.02.1994. The incident was of 21.06.1993 and since then exactly 30 years have elapsed. Appellant Ramawtar had faced trial for a period of nearly 8 months and also remained on hooks during pendency of appeal, so considering each and every aspect, now the question is whether considering the entirety of situation whether he be required to be send in custody or not.

¶89

For this purpose when we look at the record, the age of Ramawtar on the date of incident was around 20 years as per

¶90

[CRLA-87/1994]

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(15 of 16)

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remand paper and also memo of arrest, therefore on the date of incident, he was less than 21 years and there is provision under Section 6 which was referred in the case of State of MP Vs. Vikram Das (supra) to this restriction is not applicable as appellant was found guilty under Section 326 IPC.

¶93

Considering each and every aspect of the matter, I am of the considered view that leniency to the extent can be considered so that injured may be adequately compensated and appellant Ramawtar is not required to undergo further incarceration, therefore ends of justice would be met if Ramawtar is convicted for a period of 10 days with fine of Rs.50,000/- under Section 326 IPC and imprisonment of 7 days with fine of Rs.10,000/- for offence under Section 324 IPC.

¶94

As a result of aforesaid discussion, the appeal is disposed of in following terms:

¶95

Appeal preferred by Nathuram @ Natthu is hereby allowed and order of conviction and sentence is set aside qua appellant Nathuram @ Natthu and he acquitted from the charge of offence under Sections 307/34, 324/34, 323 and 451 IPC.

¶96

Appeal preferred by appellant Subhash is partially allowed against order of conviction and sentence dated 11.02.1994 and order of conviction under offence for Section 307/34, 324/34 and 451 IPC is set aside and he acquitted from the charge but he is convicted for offence under Section 323 IPC and benefit of Probation of Offenders Act is granted to accused Subhash on conviction under Section 323 IPC subject to the condition he executes a probation bond of Rs.50,000/- with two sureties of

¶97

[CRLA-87/1994]

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(16 of 16)

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Rs.25,000/- to the satisfaction of learned trial Judge for a period of one year.

¶100

Appeal preferred by appellant Ramawtar is partially allowed and appellant Ramawtar is acquitted from charges of offence under Sections 307, 451 and 323/34 IPC but he is convicted for offence under Sections 326 and 324 IPC and sentenced as under:-

¶101

(i) rigorous imprisonment of 10 days with fine of Rs.50,000/- under Section 326 IPC and in default of payment of fine, he would further undergo a sentence of six months;

¶102

(ii) rigorous imprisonment of 7 days with fine of Rs.10,000/- for offence under Section 324 IPC and in default of payment of fine, he would further undergo a sentence of one month.

¶103

The sentence awarded would run concurrently and appellant Ramawtar is entitled for set of under Section 428 Cr.P.C.

¶104

One month time is granted to appellants for compliance of the order.

¶105

Accordingly, the appeal stands disposed of. Misc. Application, if any, stands disposed of.

¶106

(ASHOK KUMAR JAIN),J

¶107

PREETI VALECHA/2

Ramawtar and Ors. v. State

Case brief

What is this about?

What did the court decide?

Ramawtar and Ors. v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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