RAM PRASAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal appeal has been filed by the accused appellants Ram Prasad, Roma Kishan, Bajrang Lal and. Shiv Shanker against the judgment dated 28.11.1987 of Sessions Judge Jhalawar in Sessions Case No. 179/1986 by which the accused appellant Ram Prasad was convicted under Section 304 Part II to suffer 5 years R.I. and fine of Rs. 1,000/- and in default to further under go three months S.I. and under Section 201 I.P.C. to suffer 2 years R.I. and a fine of Rs. 400/- and in default of payment of fine further undergo 40 days simple imprisonment and accused appellants Ram Kishan, Bajrang Lal and Shiv Shanker were convicted under Section 201 I.P.C. to suffer two years R.I. and fine of Rs. 400/- each and in default of payment of fine further undergo 40 days S.I. and under Section 176 I.P.C. fifteen days simple imprisonment and a fine of Rs. 100/- each and in default of payment of fine to further undergo 5 days simple imprisonment.

(2.) Brief facts of the case arc that on 6.7.1986 one Chittar lodged an F.I.R. at Police Station Khanpur alleging about a scuffle took place between the accused persons and his younger brother, Gopal on 5.7.1986 at about 10.00 A.M. As per the prosecution case deceased Copal was taking his Cooli to plough in Amarlal's field. While his elder brother Ram Prasad refused and asked Gopal not to take the Cooli. Then as per the prosecution case the occurrence took place and accused Ram Prasad inflicted two blows by Parania on the head of Gopal. Chittar came there and saw Gopal sleeping on his well and Dev Lal was sitting there. Blood was oozing out and the injuries were tied by towel. He asked from Devlal then he told that Gopal and Ram Prasad fought against each other on the point of taking Cooli and after giving two blows by prania, Ram Prasad ran away from that place. Chittar again came near Gopal and asked that how the occurrence took place then again Gopal told the same story. Chittar sent Devlal to bring a cart. Bajranga, younger brother of Gopal came after some time from the village along with Dev Lal Gurjar. Bajranga look Gopal for taking him to village but the condition of Gopal became serious and he stopped speaking. Afterwards he was taken to the house of a cart which was driven by Ram Kishan in the village Peermad. Gopal was taken to the Hospital Khanpur after that the complainant Chittar went from that plaa. In the morning of 6.7.1987 the father of the complainant Chittar informed him that Gopal has died and he has been buried. The Chittar came to the Police Station Khanpur and lodged this F.I.R. After that the investigation started and the dead body was taken out from that place and the post mortem was conducted. The police registered a case and submitted charge-sheet after investigation against all the four accused persons. The accused persons denied the charges levelled against them. The prosecution examined 18 witnesses and also produced many documents to prove the case. In defence, some documents were produced by the accused persons. The trial Court after hearing both the sides has acquitted the accused persons Ram Prasad form charges under Section 302 I.P.C. but convicted him under Section 304 Part-II I.P.C. and under Section 201 I.P.C. and other accused persons were also convicted under Sections 201 and 176 I.P.C. and sentenced them as mentioned above vide judgment dated 28.11.1987.

(3.) Mr. Rinesh Gupta, learned counsel for the accused appellants has contended that the judgment of the Court below has not been passed after due appreciation of evidence. He has further contended that the trial Court has not properly considered the facts and circumstances of this case and the delay in lodging the F.I.R. As per the prosecution case itself, Devlal and Chittar came to know about the occurrence on 5.7.1986 in the morning itself. If these persons were knowing about the occurrence then there was no occasion for them not to lodge the F.I.R. The F.I.R. was lodged after a great delay and in the facts and circumstances of this case. The trial Court has placed reliance on the testimony of PW-3 Dev Lal. From a bare perusal of his statement, it is clear that he is not a trustworthy witness and no reliance can be placed on his testimony. As per the case of the prosecution this witness told to Chittar that accused Ram Prasad gave two blows by parania but in the statement in the Court this witness told that only one blow was given by the accused appellant. The statement of Dev Lal is not corroborated by the medical evidence. PW-2 Dr. Vinod Kumar Sharma has specifically stated that the injury cannot be caused by Parania. The trial Court has also placed great reliance on PW-9 Chittar. This witness has no business to lodge the F.I.R. The prosecution has not placed the material witnesses of the case who have proved the presence of Dev Lal and Chittar at the place of occurrence. The learned counsel for the appellant has placed reliance on Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577; State of Karnataka v. Muddappa, JT 1999 (10 SC) 221; Nana v. State of Rajasthan, 2000 (1) RCC 550; Md. Monir Alaarn v. State of Bihar, AIR 2010 SC 698. On the basis of the rulings cited by him, it has been contended that the accused appellants should be sentenced to the period already undergone by them in custody or they should be released on probation as the occurrence took place in the year 1986, which is more than 23 years ago from today and it is the first offence of the accused appellants and they are not habitual offenders, they are agriculturist by profession.