STATE OF RAJASTHAN Vs. GOPARAM

JUDGEMENT

(1.) BOTH these appeals are directed against the judgment of the Sessions Judge, Merta, dated March 30, 1974 in Sessions Case No. 28/ 37. In the aforesaid Sessions case five persons, namely, Gopa Ram and his four sons Ramdeen, Sangram, Dayalram and Udaram were prosecuted. All the accused were charged with offence under Section 148 CPC. Accused Sang Ram was charged with the offence under Section 302 IPC and the other accused persons were charged with the offence under Section 302 read with Section 149 IPC. Accused Dayalram was charged with the offence under Section 324 IPC and the other accused persons were charged under Section 324 read with Section 149 IPC. Accused Ramdeen and Budharam were charged with the offence under Section 323 IPC, but they along with other accused persons were also charged under Section 323 read with Section 149 IPC. The Sessions Judge acquitted accused Goparam of all the charges. He convicted accused Sangram of the offence under Section 304, Part II IPC and sentenced him to rigorous imprisonment for a period of 7 years and to pay a fine of Rs 501/ -and default of payment of fine to undergo rigorous imprisonment for a period of one year. Accused Dayal Ram was convicted of the offence under Section 324 IPC and was sentenced to rigorous imprisonment for a period of 4 months and to pay a fine of Rs. 101/ - and in default of payment of fine to undergo imprisonment of or further period of two months. Accused Budha Ram was convicted for the offence under Section 323 IPC and was sentenced to rigorous imprisonment for a period of two months and to pay a fine of Rs. 101/ -and in default of payment of fine to undergo rigorous imprisonment for a further period of one month. Accused Ramdeen has been convicted of the offence under Section 323 IPC and has been sentenced to rigorous imprisonment for a period of one month and to pay a fine of Rs. 51/ -and in default of payment of fine to undergo rigorous imprisonment for a further period of fifteen days. Criminal Appeal No. 242 of 1974 has been filed by accused Sangram, Dayalram, Budharam and Ramdeen against their conviction and sentence for the offences referred to above. Criminal Appeal No. 575 of 19/4 has been filed by the State against the acquittal of the accused persons for the offence under Sections 302 and 302/149 respectively. The said appeal has been filed after obtaining leave to appeal under Section 378(iii) Cr. PC. In the petition for leave to appeal which was filed by the State all the five accused persons were impleaded as Respondents and leave to appeal was granted against all the five accused persons. But since the memorandum of appeal was not filed by the State within the period of limitation prescribed for filing the memorandum of appeal, the appeal of the Srate was dismissed by the order of this Court dated January, 27, 1975 on the ground of limitation. Against the said order of this Court dismissing the appeal on the ground of limitation the State filed on appeal by special leave before the Supreme Court and the said appeal was allowed by the Supreme Court by its judgment dated March 4, 1977 whereby the order of this Court dated January 27,1975 was set aside and the matter was remanded to this Court with the direction to restore to file D.B. Criminal Appeal No. 575 of 1974 and to re hear and dispose of the same in accordance with law. From the order of the Supreme Court dated March 4, 1977 it appears that Goparam accused was not a party to the appeal that was filed by the State before the Supreme Court and the appeal that was filed by the State before the Supreme Court related to accused Ramdeen, Sangram, Dayalram and Budharam only. This would show that the order of this Court dated January 27, 1975 has become final as against accused Goparam and D,B Criminal Appeal No. 575 of 1974 filed by the State has to be treated as confined to the other four accused persons, namely, Ramdeen; Sangram, Dayalram and Budharam.

(2.) BRIEFLY stated the case of the prosecution is that famine relief work involving construction of road between Kuchera and Kasnau Villages was going and in connection with the said famine relief work one Pushpendra was the mistry in one of the gangs and Accused Sangram was working as mate in that gang. As there were compaints about certain irregularities in the matter of entering of fictitious names of labourers in the muster rolls Pushpendra was replaced by Lalchand deceased as mistry of the said gang. Lalchand deceased was very strict in the matter of entering the nanus of laboures in the muster rolls and he refused to enter the names of fictitious psrsons at the instance of accused Sangram and this led to a heated exchange between deceased Lalchand and accused Sangram and their relations were strained. The case of the prosecution is further that on June 6,1973 deceased Lalchand along with Madanlal (PW 12) and Bhanwaru (PW 5) was returning from the work in the evening and when they reached Village Kuchera Madanlal went towards his house while the deceased and Bhanwaru were going together. When they came to the Chowk in front of the Panchayat Pol they found all five accused persons standing there armed with Lathis. Accused Sangram told the deceased that if he wanted to work as mistry in the gang he shall have to enter fictitious names as and when suggested by him and the accused refused to do so. Thereupon the accused persons started assaulting the deceased. On the alarm raised by deceased Lalchand his father Ramkaran (PW 1) ran from his house to rescue his son and he was also assaulted. Madanlal (PW 12) also heard the noise and he also came to the spot and tried to intervene and he was also assaulted. Badri Ram (PW 13) brother of Ramkaran, also came to the scene of the occurrence and tried to intervenes and he was also he assaulted. The case of the prosecution is further that while the assault was going on deceased Lalchand ran towards' Sitaram' temple and while he was so running accused Sangram gave a blow with a Lathi from behind which hit the deceased on this head and as a result deceased Lalchand fell down and bacame unconscious. Subhkaran (PW 2) who also happens to be the brother of Ramkaran (PW 1) also arrived at the spot and found all the accused persons standing and he told the accused party that they had killed Lalchand and thereupon accused persons ran away from the spot. Since the condition of Lalchand was serious he was first taken to the hospital at Kuchera. The Doctor of Kuchera advised that he should be taken to Nagaur Hospital and thereupon Lalchand was taken to the hospital Nagaur where the injuries on the person of Lalchand were examined by Dr. Parasram Joshi (P W 8) Medical Jurist Government Hospital, Nagaur on June 6, 1978 at 9.30 p.m. vide injury report Ex. P. 13. On June 6, 1973 Dr. Joshi also examined the injuries found on Ramkaran (PW 1) vide injury report Ex. P. 12, Madanlal (PW 12) vide injury report Ex. P. 13 and Badrilal (PW 13) vide injury report Ex.P. 11. As the condition of Lalchand was very serious Dr. Joshi advised that he should be taken to Jodhpur and thereupon he was taken to Jodhpur. Before taking Lalchand to the hospital at Jodhpur Ramkaran prepared a written report (Ex P. 1) and handed in over to the Deputy Superintendent of Police who had arrived at Government Hospital, Nagaur. On the said report the Deputy Superintendent of Police made an endorsement about his having received the same on June 6, 1973 at 11 p.m. and he directed that a case be registered and investigation be commenced on the basis of the said report. The said report was taken by Subhkaran (PW 2) to Police Station Mundwa and on the basis of the said report FIR was recorded at Police Station Mundwa on June 7, 1973 at 2 a.m. by Motikrishan Vyas (PW 15) SHO PS Mundwa. A case under Sections 307, 325, 324 and 147 IPC was registered and investigation was commenced. Lalchand while he was undergoing treatment at the Mahatma Gandhi Hospital, Jodhpur, expired on June 8, 1973, The autopsy on the dead body of Lalchand was conducted by Dr. Prakash Dayal (PW 14) Medical Jurist and Head of Department of Forensic Medicine Mahatma Gandhi Hospital and Medical College Jodhpur on June 8, 1973 at 8.30 a.m and he prepared the post mortem report Ex. P. 17. Spot investigation was conducted by Shri Moti Krishan Vyas (PW 15). He prepared the Memo of site inspection (Ex. P. 1) and the Fard Surat Haal Lash (Ex. P. 2). He seized the clothes of the deceased vide seizure memo (Ex. P. 5), and the clothes of Ramkaran vide seizure memo (Ex. P. 4) A Kulhari said to have been seized from the person of accused Dayalram during the course of occurrence was produced by Ramkaran (PW 1) and the same was seized vide seizure memo (Ex. P. 6). Accused Goparam was arrested on June 12, 1973 and the other four accused were arrested on June 13, 1973. At the time of their arrest there were certain injuries on the person of Sangram, Dayalram and Budharam accused and the said injuries were examined by Dr. Parasram Joshi on June 15, 1973. After examining the said injuries Dr. Joshi prepared the injury reports Exs. D. 6, D. 7 and D. 8 with regard to the injuries found on the person of accused Budharam, Dayalram and Sangram respectively. After completing the investigation the police filed a cherge sheet against the accused persons and after inquiry they were committed for trial to the court of Session and charges, referred to above were read over to them by the Sessions Judge, Merta. The laccused persons pleaded not guilty to the charges and claimed to be tried.

(3.) ACCUSED Goparam and Ramdeen in their statements recorded under Section 342 Cr. PC (Old), denied their presence at the spot at the time of the incident. Accused Sangram pleaded that on the date of the occurrence in the evening he was returning from the famine work along with the other labourers and when he came near the village Ramkaran, Badri, Lalchand deceased and Shanker came to beat him and that on seeing them he changed his route and went by the Roopthal way and after he entered the village the aforesaid persons surrounded him and attacked him and inflicted injuries on his person. He has also stated that on hearing his alarm accused Budharam and Dayalram arrived there and they were also assaulted. He has also stated that in the night he went to the hospital at Kuchera but the doctor did not examine his injuries on the ground that he had been transferred and he went to the hospital at Mundwa but no doctor was available there and, thereupon he advised him to get his injuries examined by the other doctor and thereupon he went to Merta and got his injuries examined at the hospital at Merta. Accused Budharam and Dayalram have also pleaded that they were assaulted by the complainant party and that they had got their injuries examined at Merta hospital. In support of their aforesaid defence the accused persons examined three witnesses. Dr. Tulsaram (DW 1) was the Medical Officer at Government Dispensary, Merta city on June 7, 1973 and had examined the injuries of Budhararn, Dayalram and Sangram and has proved the injury report Ex. D. 1 3 with regard to the injuries found on the person of accused Budharam, the injury report Ex. D. 14 with regard to the injuries found on the person of accused Dayalram and injury report Ex. D. 15 with regard to the injuries found on the person of accused Sangram. He has also proved the report Ex. D. 16 with regard to the X -ray examination of the injuries found on the right band of Sangram. Bachansingh (DW 2) and Sattar (DW 3) have been examined to narrate the manner in which the injuries were received by the accused persons at the hands of the complainant.