PRAHLAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal against the judgment of the learned Sessions Judge, Jodhpur dated 28 -4 -1978 whereby the learned lower court has held accused -appellant Prahladram guilty of the offence under Sections 304, Part II and 452, IPC and has sentenced him to 5 years rigorous imprisonment for the offence under Section 304, Part II, IPC and 6 months rigorous imprisonment for the offence under Section 452 IPC. The remaining four accused -appellants viz. Harlal, Jiya, Arjunram and Kishnaram have been held guilty of the offences under Sections 323 and 452 IPC and they have been sentenced to 3 months' rigorous imprisonment for the offence under Section 323 IPC and 6 months rigorous imprisonment for the offence under Section 452, IPC. All the substantive sentences have been ordered to run concurrently.

(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are that the marriage of Kistooraram's two daughters took place in village Lamba in which most of the Bishnoi's of the adjoining areas were also invited. One Kishnaram resident of village Fitkasni, who has been examined as PW 8, also cams to attend this marriage in village Lamba. It is alleged that on September 6, 1977 at about 3 p.m., PW 8 Kishnaram was passing by the side of the temple of Kesariya Kunwarji. All these 5 accused -persons along with their companions, who were in all 9 persons objected to the way in which PW 8 Kishnaram was wearing his Dhoti. In Bishnoi community, the corners of the Dhoti are pushed inside the part of the Dhoti which is tied to the waiste. No corner of the Dhoti is allowed to be kept in hanging or flattering. PW 8 Kishnaram was wearing the Dhoti in the style where corner of the Dhoti was kept hanging. This was objected by the accused -persons and they asked him not to keep the corners of the Dhoti hanging. He was asked to push this corner inside the portion of Dhoti tied to the waiste. Kishnaram did not listen to them. This enraged the accused -persons and, therefore, these five accused -persons along with their companions Arjun son of Khetaram, Ramiya, Manglaram and Gordhan who were armed with lathis, hockey and Dhariyas pursued him in order to give a beating to him. It is alleged that Kishnaram brought this fact to the notice of PW 3 Prahaladram who happens to be his cousin brother i.e. his mother's sister's son and told him that these accused -persons have insisted with him not to wear the Dhoti in the fashion he used to wear it. Prahlad Ram (PW 3) told him that he should not mind it because it hardly matters to him as he has only come here for a day. This further enraged the accused persons and they started pelting stones on Kishnaram. When this was observed by Chhogaram elder brother of Kishnaram, he came out of his house. Some of the stones even fell on his Chabutri and below it and probably one or two went inside his house and, therefore, he asked the accused -persons why they were unnecessarily following the guest who has come to the village. On this, accused persons left Kishnaram and they remonstrated Chhogaram as to why he is taking side of a man who has not tied his Dhoti in the fishion prevailed amongst Bishnois and after saying this, they ran after Chhogaram. Chhogaram took shelter in the house of his brother Ramsukh. The accused persons who were armed went inside the house of Ramsukh and gave beating to him. It is alleged that accused Harlal, Jiyaram and Arjun son of Natha were armed with Dhariyas and accused Prahladram was armed with a hockey. The rest of the accused persons were armed with lathies. It has been alleged that accused Harlal struck a Ohariya blow from its back side on the back of Chhogaram. Jiya Ram gave a Dhariya blow from its back side on his neck and Arjun son of Natharam gave a Dhariya blow from its back side on the right temporal region of Chhogaram. Accused Prahladram struck a hockey blow on the head of Chhogaram and the remaining accused -persons gave beating to him with lathis. He fell down unconscious. PW 3 Prahladram, his younger brother who is also the First Informant and Jetarara too went inside the house of Ramsukh and tried to intervene and in that process, they too were beaten by the accused -persons. After the beating was over, the accused persons left together from the house of Ramsukh. Chhogaram became unconscious and, therefore, he was shifted from Laroba to Jodhpur Hospital and there, he died at 9.45 p.m. on that very day. Prahlad who is younger brother of Chhogaram and who has been examined as PW 3 along with his nephew Jetaram went to report the matter to the nearby Chowki and there they were informed that the, SHO Bilara has come to the Police Line. On this, both of them came to the Police Line and the SHO asked them tp lodge a written report whereupon. Prahaladram got the report scribed from Jetaram and delivered it to the SHO, Bilara. This written report has been marked Ex. P 5. It was sent for registration of a case at the Police Station with one Ranidan Constable to the Incharge Police Station, Bilara and on the basis of which a case was registered under Sections 147, 148, 149, 452, 336, 323 and 302 IPCat 11.55 p.m. by Pepsingh, ASI, Incharge Police Station, Bilara and a formal FIR was sent with Constable Ranidan Singh to the SHO at Jodhpur on 7 -9 -1977. The SHO inspected the dead body of Chhoga Ram and prepared the inspection memo of the dead body Ex. P 4. The site was inspected and the site plan and site inspection memo have been marked Ex. P 7 and Ex. P 1 respectively. The blood stained shirt of deceased Chhogaram was taken into possession from the house of Ramsukh vide seizure memo Ex. P 2. The blood stained clothes on the person of the deceased were seized vide memo Ex. P 8. All the 9 accused persons were arrested vide memo Ex. P 9 to Ex. P 17. The blood stained clothes of the deceased were sent for chemical and serological examination and the reports of the chemical and serological examination have been marked Ex. P 18 and 19 respectively. The post -mortem report has been marked Ex. P 21 and the injury report of PW 3 Prahaladram and PW 5 Jetaram have been marked Ex. P 22 and 23 respectively.

(3.) AFTER hearing the parties, the learned lower court held that in this case, no common intention or common object to commit the murder of Chhogaram was formed and, therefore, it has acquitted all the accused persons of the offences under Sections 147, 148 and 149 IPC. It has further held that if any common intention or common object was there, it was to cause simple hurts to the victims but inspite of it, he did not convict any body by taking recourse to Section 34 or 149 IPC. It has also held that from the evidence of PW 3 Prahlad and PW 5 Jetaram, it is clear that accused Kishnaram has inflicted simple injuries and, therefore, he has been held guilty of the offences Under Section 323, IPC for causing simple injuries to these two injured persons. Accused Harlal, Jiya and Arjun are alleged to have caused simple injuries from the back side of Dhariyas to deceased Chhoga Ram and, therefore, they to have been held guilty of the offence under Section 323 IPC. It has further held that accused Prahladram had inflicted a hockey blow on the head of Chhogaram and that injury has proved fatal and, therefore, the learned lower court has assigned to accused Prahladram the knowledge that he caused an injury which was likely to cause death because he has availed the head of the deceased for causing severe blow with such a heavy weapon like hockey and so, the accused Prahaladram has been held guilty of the offence under Section 304, Part II, IPC. Nobody has been held guilty of the offence under Section 449 IPC because no intention to kill Chhogaram had ever developed amongst the accused -persons and thus, only 5 accused persons against whom, there is specific evidence of causing injuries have been held guilty of the offence under Section 452 IPC. The remaining four accused -persons against whom there is no specific evidence of causing injuries to any of the injured have been acquitted of all the offences alleged against them. Even the convicted accused persons have been acquitted of the offences under Sections 302/149, 449 and 148 and 147 IPC. They have been convicted and sentenced as aforesaid.