NANAK RAM Vs STATE OF RAJASTHAN
Bench: T.S. THAKUR,C. NAGAPPAN
Case number: Crl.A. No.-001985-001985 / 2010
Diary number: 7641 / 2010
Advocates: RAKESH DAHIYA Vs
PRAGATI NEEKHRA
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REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1985 OF 2010 With
Crl.A.No.1990/2010, Crl.A.No.1991/2010, Crl.A.No.1992/2010 and Crl.A.No.342/2011
Nanak Ram .. Appellant(s) versus
State of Rajasthan .. Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
1. This judgment shall dispose of three appeals in
Criminal appeal Nos.1985 of 2010 filed by the
appellant Nanak Ram/Accused and Criminal
Appeal No.342 of 2011 filed by
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appellants/Accused Mohan Ram and Surja Ram
against their conviction and sentence, and
Criminal Appeal Nos. 1991 of 2010, 1990 of 2010
and Criminal Appeal No.1992 of 2010 filed by the
State of Rajasthan for the enhancement of the
sentence against the above mentioned accused,
respectively.
2. The case of the prosecution in brief is as
follows : PW 7 Shera Ram is the younger brother
of deceased Shivji Ram and they had obtained
land from Gram Panchayat towards the western
side of the village and obtained Pattas for the
said land. Accused Bhera Ram and accused Chuna
Ram are real brothers while accused Surja Ram
and accused Mohan Ram are sons of accused
Sadula Ram. Accused Bhera Ram and Sadula
Ram told Shivji Ram and Shera Ram that they will
not allow them to take the land and will snatch it
from them. Two months prior to occurrence Shivji
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Ram and Shera Ram erected fencing around their
land whereupon the accused Bhera Ram and
other accused were seriously annoyed over the
same. On the occurrence day i.e. on 29.5.1983 at
10.30 a.m. Shivji Ram and both his younger
brothers were repairing/re-erecting the fencing in
their land, accused persons Bhera Ram, Sadula
Ram and his sons Mohan Ram and Surja Ram,
Gordhan Ram, Nanak Ram and Chuna Ram, all
duly armed entered into Bara from south side
and started dismantling the fence. Shivji Ram
and his brothers questioned the same by saying
that they have obtained Patta from the
Panchayat. Thereupon Bhera Ram and Surja Ram
simultaneously inflicted Barchhi blow on the head
of Shivji Ram, as a result of which he fell down
and all the accused attacked him with their
weapons. Shera Ram intervened and accused
Mohan Ram inflicted Barchhi blow which landed
on the left side of his head and accused Chuna
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Ram inflicted the jei blow on his right leg. Then all
the accused started beating whereupon his
sister Dhuri came running and fell upon Shera
Ram in order to protect him. PW 11 Balu Ram and
PW 2 Mangi Lal who were present at the
occurrence place were threatened by the accused
and they got frieghtened and saw the occurrence
standing by the side of the road. After that all the
accused went away. Shivji Ram died on the spot.
3. Some unknown person gave a telephonic
information about the occurrence to the Police
Station Nokha on 29.5.1983 and after making
Exh.P-54 entry in the Roznamcha PW 13 Attar Ali
Khan went to the occurrence place and found
Shivji Ram lying dead and Shera Ram with
injuries and he recorded Exh.P9 statement of
Shera Ram, sent him to Nokha Hospital for
treatment. He forwarded Exh.P9 statement to the
Police Station for registering the case and Exh.
P55 FIR came to be registered. He conducted
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inquest on the body of Shivji Ram and prepared
Exh.P5 ‘inquest report’. He prepared Exh.P3 site
plan and Exh.P45 site inspection note. He seized
blood stained earth and ordinary earth under Exh.
P33 and also seized jeis used by the accused
Chuna Ram, Nanak Ram from the occurrence
place and the blood stained wooden jei under
Exh. P34. He also seized the footwear of Shivji
Ram viz. Exh.P35 and sent the body for post
mortem.
4. Dr. Moti Lal Mishra (PW 9) conducted the
autopsy on the body of Shivji Ram and found the
following 9 injuries:
i) An incised wound of 6-½” x ½” and deep upto
brain on the head,
ii) a punctured wound of 1 x ½ x ½ cm on the left
knee joint deep to the bone;
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iii) multiple contusion of 1 cm each incised on the
left elbow joint;
iv) an abrasion 1 x ½ cm on the left ring finger
dorsally;
v) a contusion of 4 x 2 cm on the lower half of the
left leg anteriorly;
vi) swelling 2 x 2 cm on the left leg near the 5th
injury;
vii) a contusion of 1 x 1 cm on the right thigh
viii) an abrasion 3 x 1 cm on the right knee joint
near the ankle joint; and
ix) an abrasion on the right middle finger dorsally.
He issued Exh. P 33 Post Mortem report by
expressing opinion that the death has occurred
due to destruction of all the elements of brain
and shock due to excessive bleeding.
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5. PW 9 Dr. Moti Lal Mishra examined Shera Ram
in the Nokha hospital and found the following 11
injuries on him:
i) One crushed wound of 4 x 3 cm bone deep on
lower half of the left leg interiorly;
ii) One crushed wound of 1cm x .5x.5 cm on
middle 1/3 of the right leg laterally;
iii) Contusion of 15 x 1.5 cm on the lower portion of
glutal region;
iv) An abrasion 3 x ½ cm on the right scapula;
v) One crushed wound of 6 x 1 x 1.5 cm on the left
side of the head, 7 cm above the left ear,
vi) An abrasion 1cm x 1 cm on the back side of the
head;
vii) Swelling 4 x 3 cm on the right palm;
viii) An abrasion 1 x ½ cm on the left thumb
laterally;
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ix) A contusion of 6 x 1 cm on the middle half of
the right thigh medially;
x) A contusion of 3 x 1 cm on the right thigh 2 cm
above the ninth injury and
xi) Contusion two in number, one of 4 x 1 cm and
another of 3 x 1 cm on the upper half of the
right glutal.
He opined that all the above injuries were simple
in nature and issued Exh. P 32 Injury Report.
6. After completing investigation challan was filed
in the Court of Munsif-cum-Judicial Magistrate
Nokha against all the accused persons. Accused
Nanak Ram was absconding. The other accused
persons namely Bhera Ram, Sadula Ram, Chuna
Ram, Surja Ram, Mohan Ram and Gordhan Ram
were tried in Sessions Case No.63 of1983 for the
alleged offences under Section 302, 307, 323 and
324 all read with Section 149 IPC and also the
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offence under Section 147 and 148 IPC. The
prosecution examined 13 witnesses and tendered
in evidence 59 documents. The learned Sessions
Judge convicted accused Bhera Ram and Surja
Ram for the offences under Section 302 read with
section 149 IPC and sentenced them each to
undergo imprisonment for life. He also convicted
accused persons Sadula Ram, Mohan Ram and
Gordhan Ram for the offences under Section 304
Part II read with Section 149 IPC and sentenced
them each to undergo five years rigorous
imprisonment. Besides he convicted accused
persons namely Surja Ram, Bhera Ram, Gordhan
Ram and Mohan Ram for the offence under
Section 148 IPC and sentenced them each to
undergo six months rigorous imprisonment He
also convicted Sadula Ram for the offence under
Section 147 IPC and sentenced him to undergo 3
months rigorous imprisonment. In addition he
convicted accused persons Surja Ram, Bhera
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Ram, Mohan Ram, Sadula Ram and Gordhan Ram
for the offence under Sections 323 and 324 read
with Section 149 IPC and sentenced them each to
undergo 6 months rigorous imprisonment and
directed all the sentences to run concurrently.
However, he acquitted accused Chuna Ram of the
charges.
7. All the five convicted accused persons
preferred appeal in Appeal No.428 of 1984 on the
file of High Court of Judicature of Rajasthan, at
Jodhpur, challenging their conviction and
sentences. The State of Rajasthan challenged the
complete acquittal of Chuna Ram and the
acquittal of accused persons Sadula Ram, Mohan
Ram and Gordhan Ram for the offences under
Section 302 read with 149 IPC , in Appeal No.106
of 1985. During the pendency of the appeals four
accused persons namely Sadula Ram, Gordhan
Ram, Bhera Ram and Chuna Ram died, with the
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result the appeal preferred against them in
Appeal No. 106 of 1985 abated and the said
appeal continued only as against the accused
Mohan Ram. Like wise Appeal No.428 of 1984
preferred by the accused persons Bhera Ram,
Sadula Ram, Gordhan Ram also stood abated and
it continued on behalf of accused Surja Ram and
Mohan Ram only.
8. The High Court of Rajasthan partly allowed the
appeal in Appeal No.428 of 1984 filed by the
accused Surja Ram by setting aside his conviction
for the offence under Section 302 read with
Section 149 IPC and instead convicted him under
Section 304 Part II read with Section 149 IPC and
sentenced him to undergo 5 years rigorous
imprisonment and the other conviction and
sentences imposed on him were maintained. At
the same time it dismissed the appeal in Appeal
No.428 of 1984 preferred by accused Mohan Ram,
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by confirming the conviction and sentence
imposed on him. The High Court also dismissed
the Appeal No.106 of 1985 preferred by the State
of Rajasthan against accused Mohan Ram.
9. The accused Nanak Ram on being
apprehended was tried in Sessions Case No.24 of
1985 and the learned Sessions Judge, Bikaner
convicted him for the offence under Section 302
read with Section 149 IPC and sentenced him to
undergo life imprisonment. He also convicted him
for the offence under Section 148 IPC and
sentenced him to undergo six months rigorous
imprisonment and further convicted him for the
offence under Section 324 read with Section 149
IPC and sentenced him to undergo one year
rigorous imprisonment and in addition he
convicted him for the offence under Section 323
read with Section 149 IPC and sentenced him to
undergo three months rigorous imprisonment and
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further he convicted him for the offence under
Section 447 IPC and sentenced him to undergo
two months rigorous imprisonment and directed
all sentences to run concurrently. Challenging the
conviction and sentence Nanak Ram preferred
appeal in Criminal Appeal No.314 of 1990 on the
file of High Court of Judicature at Rajasthan at
Jodhpur and the High Court partly allowed the
appeal by setting aside the conviction under
Section 302 read with Section 149 IPC and instead
convicted him for offence under Section 304 Part
II read with Section 149 IPC and sentenced him to
undergo five years rigorous imprisonment and
maintained all the other convictions and
sentences imposed by the Sessions Court.
10. Challenging their convictions and sentences
imposed by the High Court on them accused
Nanak Ram, Mohan Ram and Surja Ram preferred
Criminal Appeal referred to above and the State of
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Rajasthan also filed appeals against the above
accused seeking for enhancement of the
sentences imposed on them. All these appeals
were heard together and are being disposed of by
this common judgment.
11. Mr. Mahabir Singh, learned senior counsel
appearing for the appellants contended that the
occurrence took place about 30 years ago and
accused persons went to the occurrence place
only to remove the fence put up by Shivji Ram
and his brothers and when it was resisted a free
fight followed which was accidental and there was
no intention to kill and only one blow on the head
of Shivji Ram was fatal and the other injuries were
only minor injuries, and the Courts below have
failed to appreciate that there are material
improvements and infirmities in the prosecution
case and the presence of eye witnesses is highly
doubtful and the conviction of appellants is wholly
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unwarranted and liable to be set aside. The
alternative plea of the learned counsel for the
appellants was that the appellants have
undergone three years of their sentence and they
be granted the benefit of probation under the
provision of Section 360 of Code of Criminal
Procedure as well as under Section 4 of the
Probation of Offenders Act, 1958, and in support
of the submission he relied on the decision of this
Court in State of Karnataka vs. Muddappa
(1999) 5 SCC 732 and Eliamma and Another
vs. State of Karnataka (2009) 11 SCC 42.
12. Per contra Ms. Sonia Mathur, learned counsel
appearing for the State of Rajasthan strenuously
contended that Shivji Ram and his brothers are
the Patta holders of the land and lease deeds
have been executed by the Panchayat in their
favour and the accused persons having failed in
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their legal proceedings had decided to attack the
brothers and take forcible possession of the land
and in pursuance of the said common object all
the seven accused persons duly armed forcibly
entered the land and inflicted injuries on Shivji
Ram with barchhi and jei resulting in
instantaneous death and also inflicted injuries on
his younger brother Shera Ram and the alteration
made by the High Court on the conviction from
Section 302 IPC read with Section 149 IPC to one
under Section 304 Part II IPC read with Section
149 IPC is erroneous and legally unsustainable. In
support of her submissions she relied on the
decisions of this Court in Mahesh Balmiki alias
Munna vs. State of M.P. (2000)1 SCC 319 and
Arun Nivalaji More vs. State of Maharashtra
(2006) 12 SCC 613.
13. The prosecution has examined PW 7 Shera
Ram, PW 2, Mandi Lal, PW6 Dhuri and PW11 Balu
Ram as having witnessed the occurrence. PW7
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Shera Ram and PW 11 Balu Ram are the younger
brothers of deceased Shivji Ram and PW6 Dhuri is
their sister. PW 7 Shera Ram was also injured
during the occurrence and according to him on
the occurrence day namely on 29.5.1983 at 10.30
a.m. Shivji Ram and both his brothers were
repairing/re-erecting the fencing in their Patta
Land and accused persons Bhera Ram, Sadula
Ram and his sons Mohan Ram and Surja Ram,
Gordhan Ram, Nanak Ram and Chuna Ram
armed with weapons entered into Bara from south
side and started dismantling the fence and they
questioned the same by saying that they have
obtained Patta from Panchayat and at that time
Bhera Ram and Surja Ram inflicted Barchhi blow
on the head of Shivji Ram as a result of which he
fell down and all the accused attacked him with
their weapons and when he intervened accused
Mohan Ram inflicted barchhi blow on the left side
of his head and accused Chuna Ram inflicted jei
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blow on his right leg and other accused also
started beating him whereupon his sister Dhuri
came running and fell upon him in order to
protect him and the accused persons also
threatened PW 11 Balu Ram and PW2 Mangi Lal
and being frightened they stood by the side of
the road and saw the occurrence and Shivji Ram
died on the spot. PW7 Shera Ram sustained as
many as 11 injuries on his person as a result of
the attack made by all the accused on him at the
time of occurrence. PW 11 Balu Ram was involved
in the fencing of the land along with his brothers
and his presence in the occurrence place cannot
doubted. PW 2 Mangi Lal happened to be with
Shivji Ram in his land and he has witnessed the
occurrence. He is an independent witness. On
seeing the attack made by the accused on her
brothers PW 6 Dhuri came running and tried to
protect Shera Ram by falling upon him. The
testimonies of PW2 Mangi Lal, PW6 Dhuri, PW11
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Balu Ram are natural cogent and in all material
particulars corroborated the testimony of PW7
Shera Ram. Accepting their testimonies it is clear
that during the occurrence all the seven accused
as members of unlawful assembly have inflicted
injuries with their weapons on deceased Shivji
Ram and PW 7 Shera Ram.
14. Shivji Ram died of homicidal violence is
established by the medical evidence adduced in
the case. PW9 Dr. Moti Lal Mishra conducted
autopsy on the body of Shivji Ram and found on
the head an incised wound of 6½” x ½” deep upto
brain and on internal examination the destruction
of the elements of the brain. He also found eight
other injuries on the other parts of the body. He
issued Exh. P33 post mortem report and
expressed opinion that the death has occurred
due to destruction of the elements of brain and
shock due to excessive bleeding. In the oral
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testimony PW9 Dr. Moti Lal Mishra has
categorically stated that injury No.1 found on the
head was itself sufficient to cause death. There is
no doubt that Shivji Ram died of injuries sustained
during the occurrence. It is further relevant to
note that PW9 Dr. Moti Lal Mishra examined PW7
Shera Ram immediately after the occurrence in
Nokha hospital and found 11 injuries on him.
Ex.P.32 is the injury report issued by him
mentioning the injuries. According to him all the
injuries are simple in nature.
15. Telephonic information about the occurrence
was given to Nokha Police Station by some
unknown person on 29.5.1983 itself and PW13
Attar Ali Khan after making Exh.P54 entry in the
Roznamcha, immediately went to the occurrence
place and found Shivji Ram lying dead and Shera
Ram with injuries. He recorded Exh.P9 statement
of Shera Ram and sent him to Nokha hospital for
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treatment and forwarded the statement to the
Police Station for registering the case Exh.P55 is
the First Information Report. He also seized jeis
used by the accused from the occurrence place
under Exh.P34 Mazhar. There is no delay in
registering case and there is no flaw in the
investigation.
16. It is true that the accused party had land
dispute with the victim party. The Collector
ordered conversion of subject land into abadi and
on the applications made by Shivji Ram and his
two brothers, Pattas were issued as evident from
P12, P16, P17, P20, P21 and P24. Accused Bhera
Ram preferred appeals against the grant of Patta
to Panchayat Samiti at the first instance and they
came to be dismissed and the revision preferred
before the Collector was pending. PW8 Sarpanch
Dhura Ram and PW5 record keeper Hanuman Das
have stated so. Thus the evidence shows that the
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accused party was desirous to get the subject
land to themselves and were taking legal steps to
achieve it. On coming to know of the fencing put
by Shivji Ram and his brothers they were annoyed
and went there to remove the fencing. While they
were dismantling the fencing, Shivji Ram and his
brothers came there and objected to it by saying
that they have obtained Patta and a sudden
quarrel erupted.
17. A fight suddenly takes place for which both
parties are more or less to be blamed and it is a
combat whether with or without weapons. It may
be that one of them starts it, but if the other had
not aggravated it by his own conduct, it would not
have taken the serious turn it did. Heat of
passion requires that there must be no time for
the passions to cool down and in this case the
parties have worked themselves into a fury on
account of the verbal altercation in the beginning.
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Out of the 9 injuries, only injury no.1 was held to
be of grievous nature, which was sufficient in the
ordinary course of nature to cause death of the
deceased. The assaults were made at random.
Even the previous altercations were verbal and
not physical. The earlier disputes over land do
not appear to have assumed the characteristics of
physical combat. This goes to show that in the
heat of passion upon a sudden quarrel the
accused persons had caused injuries on the
deceased. That being so the Exception 4 to
Section 300 IPC is applicable. The fact situation
bears great similarity to that in Ghapoo Yadav &
Ors. vs. State of M.P. (2003) 3 SCC 528.
18. Looking at the nature of injuries sustained by
the deceased and the circumstances as
enumerated above the conclusion is irresistible
that the death was caused by the acts of the
accused done with the intention of causing such
bodily injury as is likely to cause death and
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therefore the offence would squarely come within
the first part of Section 304 IPC and the appellants
would be liable to be convicted for the said
offence. The conviction of the appellants/accused
under Section 304 Part II read with Section 149 IPC
by the High Court is liable to be set aside.
19. We are of the considered view that
imposition of 7 years rigorous imprisonment on
each of the appellants for the conviction under
Section 304 Part I IPC would meet the ends of
justice. We sustain the other conviction and
sentences imposed on the appellants. We are also
of the view that the appellants are not entitled for
release on probation.
20. In the result Criminal Appeal No.1990 of
2010, 1991 of 2010 and 1992 of 2010 preferred by
the State of Rajasthan against the accused
persons Nanak Ram, Mohan Ram and Surja Ram
are partly allowed and their conviction for the
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offence under Section 304 Part II IPC read with
Section 149 IPC and the sentences of 5 years
rigorous imprisonment each are set aside and
instead they are convicted for the offence under
Section 304 Part I read with Section 149 IPC and
sentenced to undergo seven years rigorous
imprisonment each. All other convictions and
sentences imposed on them by the High Court are
maintained. Criminal Appeal No.1985 of 2010 and
342 of 2011 are dismissed.
…………………………….J .
(T.S. Thakur)
……………………………J. (C. Nagappan)
New Delhi; February 26, 2014.