KALU RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The present appeal arises out of the judgment dated 30-10-1993 passed by the learned Sessions Judge, Rajsamand in Sessions Case No. 2/1992 whereby he convicted the accused appellant under Section 302 I.P.C., 323 and 325 read with Sections 149 and 147, I.P.C. and sentenced him to life imprisonment and a fine of Rs. 200/- under Section 302, I.P.C. and one year's rigorous imprisonment on each count. 4 other accused persons were also tried along with the appellant and they were convicted under Sections 323 and 325 read with Section 149, I.P.C. and Section 147, I.P.C. and were sentenced to one year's rigorous imprisonment on each count with fine of Rs. 100/-. The other four accused persons have served out the sentences awarded to them. Therefore, they have not appealed against the judgment. The accused appellant who was convicted and sentenced under Section 302, I.P.C. has filed the present appeal before this Court.

(2.) The prosecution was initiated on the strength of a report lodged by one Kanna P.W. 10. According to the first information report the first informant heard the shouts made by Magni daughter of Shanker Bheel. When he reached at the site he found that the accused persons were giving beating to the deceased by stones. One of the accused had a stick in his hands. At that time except Magni none of the family members were there. When he intervened the accused also gave beating to him and on suffering at the hands of the accused this witness left the site. When this witness left the site the deceased was still breathing i.e. conscious. On that day at about sun set Shanker son of Uda came to him and said that his father had died and the death was result of the beating given to him by the accused persons. After conducting the investigation, the accused persons were charged under Sections 147, 302 read with Sections 149 and 323 and 325 read with Section 149. An independent charge under Section 302, I.P.C. was also framed against the accused appellant. The accused denied the charges and claimed trial. At the trial, 13 witnesses were examined on behalf of the prosecution. One of them P.W. 1 Magni was an eye-witness and P.W. 10 Kanna arrived while the incident was going on. The trial Court believed the testimony of the eye-witnesses and came to the conclusion that the beating had been by stones etc. The injuries except the one on cervical vertebra were not of such a nature so as to be sufficient to cause death in the ordinary course of nature and, therefore, convicted the accused of persons including the appellant under Sections 323 and 325 read with Section 149, I.P.C. But the present appellant was convicted under Section 302, I.P.C. For convicting him under Section 302, I.P.C. his case was distinguished on the ground that he had twisted the neck of the deceased which resulted into dislocation of C-2 and C-3 of cervicle vertebra and consequently caused asphyxia.

(3.) Counsel for the appellant has urged before us that when the other accused persons have not been convicted under Section 302, I.P.C. the accused alone could not have been singled out for conviction under Section 302, I.P.C. because all of them had the intention of only to the extent of causing hurt to the accused. The motive alleged is not enough to persuade the accused persons to such an understanding so as to done away with the deceased. The deceased was a man of 80 years of age and the dislocation of C-2 and C-3 vertebra cannot therefore, be attributed to the part played by the accused appellant alone because the other accused persons also had manhandled the old man who suffered death in the incident. When the other accused persons have only been convicted under Sections 323 and 325 read with Section 149, I.P.C. then a specific case under Section 302, I.P.C. could not have been made against the accused-appellant.