KALU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellants have challenged the judgment dated 11.8.86 passed by the Sessions Judge, Jaipur District, Jaipur whereby the learned Judge has convicted the appellants under different offences and has sentenced them as under: Accused Kalu: Under Section 147 IPC - One year's rigorous imprisonment and a fine of Rs. 200/ - and in default of payment of fine to further undergo two months rigorous imprisonment, Under Section 307 read with Section 149 IPC - Four years rigorous imprisonment and a fine of Rs. 300/ - and in default of payment of fine to further undergo two months rigorous -imprisonment. Under Section 323 read with Section 149 IPC -Two months rigorous imprisonment and a fine of Rs. 50/ - and in default of payment of fine to further undergo fifteen days rigorous imprisonment. Accused Kalyan: Under Section 147 IPC - One year's rigorous imprisonment and a fine of Rs. 200/ - and in default of payment of fine to further undergo two months rigorous imprisonment. Under Section 307 read with Section 149 IPC - Four years rigorous Imprisonment and a fine of Rs. 300/ - and in default of payment of fine to further undergo two months rigorous. imprisonment. Under Section 323 read with Section 149 IPC -Two months rigorous imprisonment and a fine of Rs. 50/ - and in default of payment of fine to further undergo fifteen days rigorous imprisonment. Accused Ramphool: Under Section 147 IPC - One year's rigorous imprisonment and a fine of Rs. 200/ - and in default of payment of fine to further undergo two months rigorous imprisonment. Under Section 307 read with Section 149 IPC - Four years rigorous imprisonment and a fine of Rs. 300/ - and in default of payment of fine to further undergo two months rigorous imprisonment. Under Section 323 read with Section 149 IPC - Two months rigorous Imprisonment and a fine of Rs. 50/ - and in default of payment of fine to further undergo fifteen days rigorous imprisonment. Under Section 323 IPC - Two months rigorous imprisonment and a fine of Rs. 50/ - and in default of payment of fine to further undergo fifteen days rigorous Imprisonment. Accused Bhagirath: Under Section 147 IPC - One year's rigorous imprisonment and a fine of Rs. 200/ - and In default of payment of fine to further undergo two months rigorous imprisonment. Under Section 307 read with Section 149 IPC - Four years rigorous Imprisonment and a fine of Rs. 300/ - and in default of payment of fine to further undergo two months rigorous imprisonment. Under Section 323 read with Section 149 IPC - Two months rigorous imprisonment and a fine of Rs. 50/ - and in default of payment of fine to further undergo fifteen days rigorous imprisonment. Accused Gainda: Under Section 147 IPC - One year's rigorous imprisonment and a fine of Rs. 200/ - and in default of payment of fine to further undergo two months rigorous imprisonment. Under Section 307 read with Section 149 IPC - Four years rigorous imprisonment and a fine of Rs. 300/ - and in default of payment of fine to further undergo two months rigorous imprisonment. Under Section 323 read with Section 149 IPC - Two months rigorous imprisonment and a fine of Rs. 50/ - and in default of payment of fine to further undergo fifteen days rigorous Imprisonment. Under Section 323 IPC - Two months rigorous Imprisonment and a fine of Rs. 50/ - and In default of payment of fine to further undergo fifteen days rigorous imprisonment.

(2.) BRIEFLY , the facts of the case are that on 12.11.83 one Kanhaiya Lal (PW. 4)lodged a report (Ex. P. 7) at Police Station, Chaksu, wherein 'he claimed that he isgrowing mustard In his field. Ramsahay, Kalyan, Bhagirath Meena were grazing their goats in his field. Therefore, he went there and told them to take their goats out of his field. After he came back to his house, Ramsahay, Kalyan, Bhagirath, all sons of Shankar, Kalu, Ramphool, Sitaram, Gainda, Mahadev, Ramu, Govinda Meena, armed with 'lathies' came to his house. They assaulted Jagdish S/o Ramsahay, Kanhaiya Lal S/o Ramsahay, Panchi W/o Ramsahay, Sushila W/o Kanhaiya Lal with 'lathies'. Because of this assault, his family members are gravely injured. Gopal and Gopali rushed to their rescue and separated the parties. At the time of the incident many persons were present. In case these people had not intervened, the complainant and his party would have been killed. After threatening them that 'they will kill the entire family' and after stating that 'they do not care if they have to go to jail, but they will ensure that they kill the family', the accused persons left the house.' On the basis of this written report, a formal FIR (Ex. P. 7A), FIR No. 253/83, was chalked out for offences under Sections 147, 451 and 323 IPC.

(3.) MR . R.N. Khandelwal, the learned Counsel for the appellants, has raised the following contentions : firstly, the intention of the accused can be culled out by a holistic appreciation of evidence. Secondary, both the parties are neighbours and have their fields right next to each other. The Incident occurred all of a sudden, over the trifle matter of goats entering into the fields of the complainant party and damaging his crops. There was no premeditation and no animosity existed between the parties. The weapons used were 'lathies' which are not lethal in nature. Thus, the intention was not to cause death, but the intention was merely to hurt the complainant party. Thirdly, Jagdish (PW. 3), who is the most injured person from the side of the complainant party, has merely sustained two lacerated wounds: one, on the left parietal part of the head. The second, laceration which is said to be a simple injury in nature. The first lacerated wound caused merely a linear fracture, i.e. a hairline fracture of the bone. Thus, only a grave injury was caused. A linear fracture, thus, cannot cause the death of the person in the ordinary course of nature. Hence, the offence under Section 307 IPC is not made out. Fourthly, since three persons have been acquitted by the trial Court, clearly innocent persons were roped in by the complainant. Fifthly, Sushila (PW. 1) has been disbelieved by the trial court though she claimed to be an Injured witness and an eye -witness to the incident. Lastly, the Injured witnesses, Jagdish (PW. 3), Kanhaiya (FW. 4), Fanchi (PW. 6) are untrustworthy witnesses. Four, they contradict each other's testimonies, they are not corroborated by the medical evidence, they are repeatedly contradicting their earlier statement given under Section 161 Cr.P.C. and they all claim, that Sushila was present at the time of the incident. But, according to the learned trial Court, Sushila was not present at the time of the incident. Hence, the creditworthiness of these witnesses is highly questionable. Lastly, the learned Counsel has pleaded that since the offence does not travel beyond Section 308 IPC, the benefit of probation should be granted to the appellants as this was their first and last offence, as they have been peacefully living since 1983 i.e. almost for the last 25 years.