Partly allowed

Kalu Ram S/O Laxmi Narayan v. State of

Rajasthan HC24 May 2024CRLA/552/1991

Case brief

AI extract

What is this about?

In a criminal appeal challenging conviction for attempt to murder and voluntarily causing hurt, the High Court acquitted the appellant of Section 307 IPC charges due to lack of corroborative evidence and simple nature of injuries, upholding only the conviction under Section 323 IPC.

What did the court decide?

Appellant acquitted of Section 307 IPC; conviction under Section 323 IPC upheld. Sentence limited to custody period already undergone. Bail bond secured.

Kalu Ram S/O Laxmi Narayan Vs State of — Murder and Culpable Homicide | Rajasthan HC (2024)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Criminal Appeal No.552/1991

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Kalu Ram S/o Laxmi Narayan, age 21 years, R/o VillageSunderpura, PS Jamva Ramgarh, District Jaipur.

¶4

----Accused-Appellant

¶5

Versus

¶6

The State of Rajasthan

¶7

	----Respondent
For Appellant(s)	: Mr. Nitin Jain, appointed as Amicus Curiae
For Respondent(s)	: Mr. Atul Sharma, PP

¶8

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

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Order

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Reserved on	: 20/05/2024
Pronounced on	: 24/05/2024

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Reportable

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For convenience of exposition, this judgment is divided in the following parts: -

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INDEX

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(1)	Factual Matrix ……………………………………………………..2
(2)	Submissions on behalf of the appellant…………………...3
(3)	Submissions by the Public Prosecutor……………………..5
(4)	Analysis, Discussions & Reasonings………………………..5
(5)	Conclusion………………………………………………………....11

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[CRLA-552/1991]

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(2 of 12)

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The present appeal assails the correctness of the judgment dated 04.12.1991 passed by the Sessions Judge, Jaipur District Jaipur in Sessions Case No.121/1989 by which the accused-appellant (hereinafter referred as “the appellant”) has been convicted as under:

¶18

Under Section 307 IPC	Sentenced to undergo 5 years rigorous imprisonment with fine of Rs.500/- in default of fine, further undergo two months rigorous imprisonment.
Under Section 323 IPC	Sentenced to undergo 6 months rigorous imprisonment.

¶19

Both sentences were ordered to run concurrently.

¶20

Factual Matrix:-

¶21

Brief facts of the case are that a report Ex.P1 was lodged by PW-1 Chhotu Ram with Police Station Jamva Ramgarh, District Jaipur alleging therein that marriage of his elder brother’s daughter namely Bhanwari was solemnized with Kalu Ram four years back. The in-laws of Bhanwari were not happy with her and on 06.08.1989 after beating Bhanwari they threw her into a well, thereafter with the help of villagers she was taken out from the well and she was found to be unconscious and serious at that time.

¶22

Upon this report, Crime No.169/1989 was registered for the offences under Section 307 and 323 IPC and after investigation, charge-sheet was submitted against the appellant for the above offences, thereafter, charges were framed for the offences stated above. The accused denied charges and claimed trial, thereafter statements of as many as 10 witnesses were

¶23

[CRLA-552/1991]

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(3 of 12)

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recorded and 09 documents were exhibited. Thereafter, the explanation of the accused was recorded under Section 313 Cr.P.C., wherein, he denied his participation in the incident. Thereafter, two witnesses were examined namely DW-1 Ghisi Lal and DW-2 Ghansi and certain documents were exhibited in defence. After hearing argument of both sides, the learned trial Judge convicted and sentenced the appellant as stated above.

¶26

Submissions on behalf of the appellant:-

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Learned counsel for the appellant submits that as per the case of prosecution, the injured PW-2 Bhanwari was beaten by the appellant, thereafter she was thrown into a well and after that she was taken out from the well by the villagers. Counsel submits that as per the case of prosecution, PW-5 Nathu and PW-6 Jagannath are the witnesses who took out the injured Bhanwari Devi from the well, but these witnesses have not supported the case of prosecution and they have been declared as hostile. Counsel submits that other two witnesses namely PW-3 Ramdhan and PW-10 Asha Ram are not the eye witnesses of the incident. They are chance witnesses and their presence on the spot is seriously doubtful. Counsel submits that whole case of the prosecution depends upon the testimony of the injured PW-2 Bhanwari. Counsel submits that as per statement of six witnesses, she was brutally beaten by the appellant and thereafter thrown into a well by the appellant. Counsel submits that as per the injury report of the injured PW-2 Bhanwari, in all she has sustained 11 injuries. Counsel submits that initially the injury No.1, 3, 5, 6, 7 and 11 were found to be simple in nature and injury No.8 was stated to be grievous, but X-ray was advised to ascertain the

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[CRLA-552/1991]

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(4 of 12)

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nature of this injury. Counsel submits that opinion was kept reserved for injury No.4, 8, 9 and 10 vide Ex.P5. Counsel submits that subsequently, X-ray of all the above four injuries was conducted and opinion on these injuries were found to be simple in nature as there was no fracture on these parts of the body of the injured. Counsel submits that though an opinion was given by the Doctor that in the X-ray report, the injury No.8 was found to be simple in nature, as no fracture was found for the same, but even then, the said injury was treated as grievous because the same was mentioned as grievous in the injury report Ex.P5. Counsel submits that the Doctor has not been produced by the prosecution in the witness-box, under these circumstances, it cannot be believed that the injured has sustained any grievous injury. Counsel submits that the entire case of the prosecution is that after marriage of the injured with the appellant, she was tortured, but not a single report was lodged in between those four years of their marriage. Counsel submits that there is no evidence available on the record to establish the fact that the injured was thrown in a well, hence under these circumstances, no offence under Section 307 IPC is made out. Counsel submits that looking to the injuries sustained by the injured, the case do not travel beyond the offence under Section 323 IPC as all injuries sustained by the injured were found simple in nature. Counsel submits that the appellant remained in custody during investigation and trial with effect from 10.07.1989 till 28.08.1989 and thereafter in appeal w.e.f. 04.12.1991 till 18.12.1991 when his sentence was suspended by this Court. Counsel submits that in all appellant has already undergone the custody and sentence of more than 65

¶31

[CRLA-552/1991]

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(5 of 12)

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days during investigation, trial and appeal, so the appellant be released on the sentence already undergone by him.

¶34

Submissions by the Public Prosecutor:-

¶35

Per contra, learned Public Prosecutor opposed the prayer and submitted that the prosecution has proved the case against the appellant beyond all reasonable doubts and looking to the act and conduct of the appellant, he has been rightly found guilty of the offence under Section 307 and 323 IPC. Counsel submits that a reasoned and cogent judgment has been passed by the learned trial Judge, which requires no interference of this Court.

¶36

Analysis, Discussions & Reasonings:-

¶37

Heard and considered the submissions made at the Bar and perused the material available on the record.

¶38

The First Information Report (Ex.P1) was lodged by PW1 – Chhotu Ram who has alleged that marriage of Bhanwari, daughter of his elder brother Ramji Lal was solemnized with the appellant – Kalu Ram four years back and her in laws and the appellant used to quarrel with her. When his statements were recorded during the course of his trial, he has specifically stated that one and half year back the appellant assaulted his niece Bhanwari and left her at their residence.

¶39

It is worthy to note here that in FIR (Ex.P1) he levelled allegation against the appellant that after beating his niece, she was thrown into well and thereafter the villagers pulled her out from the well. While in Court statements he has entirely changed his version, he has not levelled a whisper of allegation of throwing her into the well.

¶40

[CRLA-552/1991]

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(6 of 12)

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The prosecution has produced PW-3 Ram Dhan, PW-4 Ramji Lal, PW-10 Asha Ram showing them as eye-witnesses of the incident. These witnesses are claiming themselves as eyewitnesses of the incident when the injured PW-2 Bhanwari was assaulted by the appellant and she was thrown into the well and they pulled her from the well.

¶43

It is worthy to mention here that the place of occurrence is village-Sunderpura where the incident has occurred and none of these witnesses are resident of that village Sunderpura. Their presence on the place of incident is highly doubtful because they are claiming themselves as “chance witnesses” that they went to the village-Sunderpura to see the work of ‘Galicha’. Their presence on the place of occurrence is highly un-natural. It appears that in order to show these witnesses as ‘eye-witnesses’ of the occurrence, their ‘chance presence’ has been shown in the village-Sundarpura. Evidence of all these witnesses is completely unreliable and the same is not trustworthy.

¶44

The other material witnesses i.e. PW-5 Nathu, PW-6 Jagannath and PW-9 Sharwan have not supported the version of the prosecution and all of them have been declared as hostile.

¶45

Now the whole case centers around the solitary testimony of the injured PW-2 Bhanwari with whom the incident has occurred. As per statement of this witness, after beating her the appellant has thrown her into a well and after one hour the villagers pulled her out from the well but she did not know the names of those villagers. Then she said one of them was Munna Ram. It is worthy to mention here that neither the said Munna

¶46

[CRLA-552/1991]

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(7 of 12)

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Ram nor any of the villagers who are residents of the villageSunderpura have been produced in the witness-box to prove the allegations levelled by this witness against the appellant. So except the injured PW-2 Bhanwari, no other natural witness has been examined by the prosecution to prove the fact that she was thrown by the appellant into the well. Her allegation of throwing her in the well is not corroborated by the evidence of the informant/complainant PW-1 Chhotu Ram who lodged the FIR (Ex.P1) because in his Court statements he has categorically stated that the appellant assaulted Bhanwari and left her at their residence. He has nowhere stated that after beating the injured Bhanwari, she was thrown into the well by the appellant. Hence the allegation of throwing the injured into well is suspicious and the same is not proved by the prosecution by any independent or natural witnesses who are resident of the same village-Sunderpura where the incident has occurred.

¶49

Now this Court proceeds to examine the injuries sustained by the injured PW-2 Bhanwari. Ex.P5 is the injury report of this witness which indicates that she has sustained the following injuries on different parts of her body:

¶50

“1. Swelling upper lip – simple – blunt.

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C/o pain chest anterior only - blunt – O.R. Ad X- Ray.

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Multiple 1x1 cm abrasion at right hypochondrium

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Simple blunt.

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C/o pain back of chest – O.R. – Ad X-Ray.

¶55

2x2 cm bruise at left ankle joint – simple – blunt.

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2x2 cm bruise at left knee joint – simple – blunt.

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(8 of 12)

¶58

[CRLA-552/1991]

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Abrasion 10x¼x¼cms at upper part of left leg – simple blunt.

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Emasculation in the size of 5x5x2 cm at left knee joint – repair made – blunt – grievous - AD – X- Ray.

¶61

5x5x¼ cm abrasion at left genital region – blunt

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– O.R. – Ad X-Ray.

¶63

Swelling both the molar region – blunt – Ad X- Ray O.R.

¶64

1x1 cm abrasion at left knee joint – simple – blunt.”

¶65

The injury number 1, 3, 5, 6, 7 and 11 were found to be simple in nature caused by blunt object. For injury number 2, 4, 8, 9 and 10 the opinion was kept reserved and X-Ray was advised. Though the injury No.8 i.e. on left knee joint was mentioned as grievous in nature but still the X-Ray was advised to check whether the injured sustained any fracture or not.

¶66

The X-Ray Report (Ex.P6) of the injured was conducted on 08.08.1989 and no fracture was found on any part of the body of the injured. Meaning thereby all the injuries sustained by the injured was found to be simple in nature.

¶67

The Medical Jurist and the Radiologist who prepared the injury report (Ex.P5) and X-Ray Report (Ex.P6) opined that though in X-ray Report (Ex.P6) no fracture was found, still the injury No.8 was treated as ‘grievous injury’. There was no basis to give such opinion that how this injury No.8 was treated as grievous.

¶68

To prove the injuries of the injured, neither the medical jurist who prepared the injury report (Ex.P5) has been examined nor the Radiologist has been produced in the witness-box who has prepared the X-Ray Report (Ex.P6) of the injured. Only a nursing

¶69

[CRLA-552/1991]

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(9 of 12)

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staff i.e., PW-7 Hansram Yadav, Male Nurse Gr.II of Government Hospital Jamva Ramgarh was examined who has identified the signatures of the Doctor J.P. Tambi who prepared the injury report (Ex.P5) of the injured. The Medical Jurist, Dr. J.P. Tambi, could not be examined because he expired.

¶72

The injury report (Ex.P5) of the injured has been proved by the male nurse staff of the Hospital i.e., PW-7 Hansram Yadav who was posted at the Government Hospital and identified the signatures of the Medical Jurist Late Dr. J.P. Tambi.

¶73

The injury report (Ex.P5) and the X-Ray report (Ex.P6) indicate that all the injuries sustained by the appellant are simple in nature.

¶74

Now this Court proceeds to decide the issue that whether under the facts and circumstances of the instant case, the offence under Section 307 IPC is made out or not?

¶75

To justify a conviction under Section 307 IPC, the Court has to see whether the act was done with an intention to commit murder and it would depend upon the facts and circumstances of the case. Although the nature of injury caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be gathered from the circumstances like the nature of weapons used, parts of the body where the injuries were caused, severity of the blows given and the motive etc.

¶76

Section 307 of the Indian Penal Code deals with the provision and punishment for the offence of attempt to murder and it reads as under:

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(10 of 12)

¶78

[CRLA-552/1991]

¶79

“ Section 307 – Attempt to Murder:

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Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.”

¶81

20. In State of Madhya Pradesh vs Saleem @ Chamaru

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and Anr reported in 2005 (5) SCC 554 the Hon’ble Apex Court has held that to sustain a conviction under Section 307, IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the same judgment, it was pointed out that ‘The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.’ The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v Kanha, (2019)3 SCC 605 . Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life-threatening injury was not necessary to maintain a conviction under Section 307, IPC, ‘The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the

¶83

[CRLA-552/1991]

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(11 of 12)

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weapon used and the severity of the blows inflicted can be considered to infer intent.’

¶86

The prosecution has miserably failed to produce any independent or natural witness to prove the incident of the attempt to murder caused by the appellant to throw the injured PW-2 Bhanwari into the well. Hence under such circumstances, the charge under Section 307 IPC is not made out against the appellant which warrants his conviction for this charge. Hence the appellant has been erroneously convicted under Section 307 IPC.

¶87

Thus, in view of the facts and circumstances of the case and the evidence discussed above, the prosecution has failed to prove that any of the injuries sustained by PW-2 Bhanwari were grievous in nature and were sufficient to cause her death in the ordinary course of nature. From the prosecution evidence, it has been established that all the injuries sustained by the injured Bhanwari were simple in nature.

¶88

Conclusion:-

¶89

After scanning the testimony of the Injured PW-2 Bhanwari and her Injury Report (Ex.P5) and X-Ray Report (Ex.P6), this Court finds that the prosecution has succeeded in proving that the appellant has caused simple injuries by blunt object to the injured and he is found guilty of the offence punishable under Section 323 IPC. There was no intention of the appellant to cause death of the injured Bhanwari and to cause such injury which was sufficient in the ordinary course of nature to cause her death, hence charge under Section 307 IPC is not made out against the appellant.

¶90

[CRLA-552/1991]

¶91

(12 of 12)

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Hence, the appellant stands acquitted from the charge under Section 307 IPC. His conviction under Section 323 IPC is upheld and he is sentenced to the period already undergone by him. The judgment passed by the Sessions Judge, Jaipur District Jaipur stands modified accordingly. The appeal stands partly allowed.

¶93

The appellant is on bail and he is not required to surrender.

¶94

In view of the provisions of Section 437-A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.50,000/- with two surety bonds of Rs.25,000/- each to the satisfaction of the trial Court within a period of six weeks form today, which shall be effective for a period of six months with the stipulation that in the event of Special Leave to Appeal / Special Leave Petition is submitted against this judgment or on grant of leave, the petitioner on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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(ANOOP KUMAR DHAND),J

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KuD/3

Kalu Ram S/O Laxmi Narayan v. State of

Case brief

What is this about?

What did the court decide?

Kalu Ram S/O Laxmi Narayan v. State of

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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