Kalu Ram Vs. State of Rajasthan - Court Judgment

Bhagwati Prasad, J.

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. Ac-cording 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 convict-ing 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.

4. Learned counsel for the appellant has further stressed that according to the witness P.W. 10 Kanna the deceased has not succumbed to his injuries soon after the incident. When he-left the site, he was still breathing and therefore, it was not an instantaneous death due to the injuries alleged to have been inflicted by the act of the accused-appellant. It was only in the evening that the man had died.

5. The further argument of the learned Counsel for the appellant is that in any case by twisting the neck the accused cannot be said to have the intention of causing the death of the deceased though he may have the knowledge that in doing so he may cause the death of the deceased and, therefore, the culpability of the accused would not travel beyond Section 304, Part II, I.P.C.

6. The counsel for the accused-appellant has further urged that the conviction is based on the testimony of P.W. 1. She is a girl of 12-13 years of age. She is alleged to have made herself scarce under the threat of the accused that if she will shout she will also be done away with She admits that while the incident was going on she had got into the Ora and, therefore, she was not even in a position of seeing the whole of the incident.

7. Learned counsel for the State urged that the accused is not entitled to any indulgence by this Court.The common intention of the whole lot of people who gathered may not have seen beyond causing grievous hurt to the deceased but the accused-appellant has definitely exceeded the common intention as has been rightly held by the trial Court. He has mercilessly twisted the neck of the old man resulting into his death. The participation of the accused is clearly established by the evidence of P.W. 1 Magni and P.W. 10 Kanna. P.W. 1 Mangni has not been cross-examined on the point of twisting of the neck by the accused and, therefore, there is nothing which can be said to be in favour of the accused and under these circumstances the appeal of the accused-appellant is liable to be rejected.

8. We have heard the learned Counsel for the parties and perused the record.

9. As regards the challenge to the testimony of P.W. 1 Magni and P.W. 10 Kanna, whereby the accused persons are alleged to have caused the injuries..to the deceased is concerned, the statements do not suffer from any such infirmity so as to discard them. Their testimony has stood the test of cross-examination well. Neither there are any material contradictions nor omission from the police statements of these witnesses and, therefore, the argument of the learned counsel for the appellant that these witnesses are not believable qua the incident cannot be sustained. Once we hold that the testimony of P.W. 1 Magni and P.W. 10 Kanna is not liable to be questioned then we come to the question of the participation of the accused-appellant. 4 other accused persons who were party to the crime have been convicted under Sections 323 and 325 read with Section 149, I.P.C. and only the appellant has been convicted under Section 302, I.P.C. the question remains whether the conviction of the appellant under Section 302, I.P.C. can be sustained or not.

10. The prosecution story as unfolded in the statements of P.W. 1 Magni and P.W. 10 Kanna shows that the accused had beaten the deceased either by stones or by arms etc. The effect of injuries has been described to fall under the offence under Section 325, I.P.C. No lethal arms were used by the accused persons. The solitary distinguished part attributed to the present appel-lant is that he twisted the neck of the deceased. Twisting of neck cannot necessarily mean that the accused had the intention to cause death of the deceased Uda. If he wanted to cause death, then he could have strangulated the deceased by his hands, being in a capacity to strangulate. He did not do so. He only jerked the neck. Such jerk resulted into fracture. Thus, it cannot be held beyond all reasonable doubt that at the time when the accused twisted the neck he had the intention to kill the deceased. At best it can be said to be in the knowledge of the accused that in doing so he may cause the death of the deceased. That being the position we are persuaded to hold that the conviction of the appellant under Section 302, I.P.C. is not liable to be maintained and consequently his conviction is altered from 302, I.P.C. to 304 Part II, I.P.C.

11. With the alteration of offence there comes the question of sentence which the accused should be awarded. The occurrence pertains to the year 1991. The accused had been behind the bars since his arrest and has suffered thereby more than 6 years of imprisonment. If remissions etc. are added the substantive sentence would be nearing about 10 years. In this view of the matter, the ends of justice would be met if the term already undergone by the accused appellant is awarded to the accused-appellant. Consequently the period already undergone by the accused in jail is considered sufficient sentence for the offence under Section 304, Part II.

12. In the result, the appeal is partly allowed. The conviction and sentences of the appellant under Sections 147, 323 and 325 read with Section 149, I.P.C. are maintained. The conviction and sentence under Section 302, I.P.C. is set aside. Instead the accused is convicted under Section 304 Part II, I.P.C. and sentenced to the term which the accused had already undergone which is more than six years in this case. With this modification the appeal is partly allowed. The accused is behind the bars. He be released forth with, if the is not needed in any other case.