Under Section 313 Cr.P.C the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them: Rajasthan High Court.
Under   Section   313   Cr.P.C court has power to called accused for personally to explain any circumstances appearing in the evidence against him. At any stage, without previously warning the accused put such questions to him as the Court considers necessary. The judgment was given by the High court of Rajasthan in the case of Hariram vs. State Of Rajasthan through PP. Case No: [71/2015]. The judgment was passed by Hon’ble Mr. Justice Sandeep Mehta and Hon’ble Mr. Justice Rameshwar Vyas. The counsel for petitioner was Mr. Rinesh Kumar Gupta, Mr. Ashvin Garg and counsel for respondent represented by Ms. Rekha Madnani, AGA. The petitioner lodged a written F.I.R to the SHO, Police Station Mahaveer Naagar, and Kota on 23.01.2009 at 05.10 p.m. alleging inter alia that on the same day between 02.30 p.m. and 03.00 p.m., he was standing at Samrat Cross Roads.   His brother Pradeep Gautam, Sunny, Sonu and Deepak Gautam were having Kachoris at nearby Namkeen shop. They got into a quarrel with Kuldeep and Brijesh over a trivial matter.  Brijesh slapped Sunny.  After this incident, all went back to their respective homes. At about 04.00 p.m.-04.30 p.m., his brother Pradeep Gautam, Sonu and Deepak had gone to Samrat Cross   Roads   for   a   stroll.   Deepak   came   running   towards   the informant and told him that Pradeep was being assaulted by Kuldeep, Brijesh, Hariram and 10-12 other boys by baseball bats and sticks etc.  The informant immediately rushed to the place of incident and saw that Pradeep was being assaulted by Kuldeep, Brijesh, Hariram and 10-12 other boys with baseball bats in front of the Saras Booth.   The informant, Deepak, Sonu and Sunny intervened in on attempt to save Pradeep from the assailant’s who escaped on their motorcycles.   Deepak also received injuries in this incident.  Pradeep became unconscious because of the grave injuries suffered in the incident and thus, 108 ambulances were called and he was rushed to Apollo Modi Hospital, where the doctors declared Pradeep to be dead. The counsel for petitioner said that the prosecution case regarding participation of the accused   appellants   in   the   incident   is   well-proved   from   the testimony of the first informant Pramod Gautam  and the eye   witnesses   Deepak and   Brijesh   Kumar. The contention of the learned counsel for the appellants was that even if the highest allegations as set out in the testimony of the material prosecution witnesses are accepted to be true on the face of the record, the offence punishable under Section 302 IPC cannot be held proved out against the accused persons. The counsel said that the incident took place at the spur of the moment without any pre-meditation. It was further urged that the appellants’ do not have criminal antecedents.  They are young students and have suffered imprisonment of terms varying from 6 years to 7 years and thus, the conviction of the appellants should be altered either to Section 325 IPC or to Section 304 Part II IPC and they should be released on the sentences already undergone by them. The counsel for public prosecution said that the appellants and their companions (who could not be identified) formed an unlawful assembly and brutally  assaulted  the  deceased  Pradeep  Gautam without  any rhyme or reason and inflicted a forceful injury on the chest of the deceased  by  a  heavy  implement   i.e. baseball  bat,   causing fracture of the rib and as a result, the lung was ruptured leading to instantaneous death. The counsel urged that the conviction of the appellants as recorded by the trial court does not warrant any interference by this court in these appeals. The court after hearing the both counsels said that, a trivial verbal altercation took place between the parties, wherein accused Brijesh gave a slap to Sunny. In the second part, the deceased and his two companions Sonu and Deepak had gone to the same place where the incident of morning happened, and there it is alleged that Kuldeep, Brijesh, Hariram and 10-12 other boys came around and all these assailants, who were armed with baseball bats and sticks etc. launched an indiscriminate assault on the members of the complainant party. Further court said that the accused cannot be clothed with either the intention or the knowledge that by causing such injury on the chest of the victim, they could cause his death. The Court relied upon Supreme Court on judgment of kashi Ram &amp; Ors. Vs. State of Madhya Pradesh (AIR 2001 SC 2902) held that the “offence attributed to the accused would not be one punishable under Section 302 IPC, but rather that under Section 304 Part II IPC”.  The court view that the conviction of the accused appellants deserves to be toned down from the offence punishable Section 302 IPC read with Section 149 IPC to one under Section 304 Part II IPC read with Section 149 IPC. The appeals are partly allowed.
 on 31 08 2021 at 11:43:43 AM ) AppellantVersusState Of Rajasthan through PP RespondentsConnected WithD.B. Criminal Appeal No. 47 2015Pradeep @ Mikki S o Ram Gopal R o Choudhary Bhawan Kansua Police Station Udyog Nagar KotaAppellantVersusState Of Rajasthan through PP RespondentD.B. Criminal Appeal No. 70 2015Brijesh Choudhary S o Babu Lal R o Jalodi Police StationTaleda District Bundi.(Presently confined in Central Jail Kota) AppellantVersusState Of Rajasthan through PP RespondentD.B. Criminal Appeal No. 91 2015Ajay Singh S o Kanta Singh Rajput R o Bapu Nagar KansuaChauraha Near Radha Krishana Mandir P.S. Udyog Nagar Kota(At present confined in Central Jail Kota) AppellantVersusState Of Rajasthan Through PP Respondent[CRLA 71 2015]For Appellants: Mr. Rinesh Kumar GuptaMr. Ashvin GargMr. Anil YadavMr. Sunil Kumar JainFor Respondent: Ms. Rekha Madnani AGAHON BLE MR. JUSTICE SANDEEP MEHTA HON BLE MR. JUSTICE RAMESHWAR VYASJudgmentDate of Pronouncement : 26 08 2021Judgment Reserved on : 19 08 2021BY THE COURT : PER HON’BLE MEHTA J.These four appeals have been preferred by theappellants herein for assailing the judgment dated 19.12.2014passed by the learned Additional Sessions Judge No.5 Kota inSessions Case No.03 2011 whereby each of the appellants hasbeen convicted and sentenced as under: For the offence punishable under Section 147 IPC : Toundergo simple imprisonment of one year alongwith a fine ofRs.2000 and in default of payment of fine to undergo additionalsimple imprisonment of one month.For the offence punishable under Section 302 read withSection 149 IPC : To undergo life imprisonment alongwith a fineof Rs.5000 and in default of payment of fine to undergoadditional simple imprisonment of three months.The sentences were ordered to run concurrently.[CRLA 71 2015]The appellants have suffered the custodial period asfollows : Name of the appellantCustodial period sufferedHariram7 years 7 days as on 07.08.2021Pradeep6 years 8 months 18 days as on 14.08.2021Brijesh6 years 11 months 2 days as on 14.08.2021Ajay Singh6 years 10 months 1 day as on 14.08.2021The appeals being connected are being decidedtogether by this common judgment.Briefly stated facts relevant and essential for disposalof the appeal are noted hereinbelow : Pramod Gautamlodged a written report(Ex.P 15) to the SHO Police Station Mahaveer Naagar Kota on23.01.2009 at 05.10 p.m. alleging inter alia that on the same daybetween 02.30 p.m. and 03.00 p.m. he was standing at SamratCross Roads. His brother Pradeep Gautam Sunny Sonu andDeepak Gautam were having Kachoris at nearby Namkeen shop.They got into a quarrel with Kuldeep and Brijesh over a trivialmatter. Brijesh slapped Sunny. After this incident all went backto their respective homes. At about 04.00 p.m. 04.30 p.m. hisbrother Pradeep Gautam Sonu and Deepak had gone to SamratCross Roads for a stroll. Deepak came running towards theinformant and told him that Pradeep was being assaulted byKuldeep Brijesh Hariram and 10 12 other boys by baseball batsand sticks etc. The informant immediately rushed to the place ofincident and saw that Pradeep was being assaulted by Kuldeep Brijesh Hariram and 10 12 other boys with baseball bats in frontof the Saras Booth. The informant Deepak Sonu and Sunny[CRLA 71 2015]intervened in on attempt to save Pradeep from the assailants whoescaped on their motorcycles. Deepak also received injuries inthis incident. Pradeep became unconscious because of the graveinjuries suffered in the incident and thus 108 ambulance wascalled and he was rushed to Apollo Modi Hospital where thedoctors declared Pradeep to be dead. On the basis of this report an FIR No.36 2009 came to be registered at the Police StationMahaveer Nagar Kota for the offences punishable under Sections143 148 149 and 302 IPC and investigation was commenced.The appellants were arrested and the usual recoveries wereeffected from them. The dead body of Pradeep was subjected toautopsy at the hands of Dr. Ashok Moondraat the MBSHospital Kota who noticed the following injuries on the body ofthe deceased : 1. Lacerated wound 2 cm x 1 cm x bone deep on the rightparietal region.2. Bruise 15 cm x 2 cm transverse on the chest.3. Bruise 10 cm x 2 cm little below the injury No.2.4. Bruise 10 cm x 2 cm on the chest below the injury No.3.5. Bruise 10 cm x 3 on the right side of abdomen.In addition thereto two superficial abrasions were noticed on theright leg and on the right cheek. On dissection of the skull sub dural haemorrhage was seenunderneath the injury No.1 but no internal damage was noticedon the skull or the brain. When chest was opened haemorrhagewas noticed 4th right rib was fractured and blood was collectedunderneath the injury. The right lung was ruptured and 500 ml. ofblood and blood clots were collected below the site of the injury.[CRLA 71 2015]The cause of death was found to be injury to right lung which wasopined to be sufficient in the ordinary course of nature to causedeath. The postmortem report was proved as Ex.P 5.After investigation a charge sheet came to be filedagainst the appellants for the offences punishable under Sections147 148 149 302 and 323 IPC. The case was committed andtransferred to the court of Additional Sessions Judge No.5 Kotafor trial where charges were framed against the appellants for theoffences punishable under Section 147 and 302 in the alternative302 read with Section 149 IPC. They pleaded not guilty andclaimed trial. The prosecution examined as many as 17 witnessesand exhibited 28 documents in support of its case. Upon beingquestioned under Section 313 CrPC the accused denied theprosecution allegations but did not choose to lead any evidence indefence. After appreciating the arguments advanced by learnedDefence Counsel and learned Public Prosecutor and analysing theevidence on record the trial court proceeded to convict andsentence the appellants as above. Hence these appeals.Learned counsel representing the appellants franklyconceded that the prosecution case regarding participation of theaccused appellants in the incident is well proved from thetestimony of the first informant Pramod Gautamand theeye witnesses Deepakand Brijesh Kumar[CRLA 71 2015]was contended that the incident took place at the spur of themoment without any pre meditation. The head injury noticed onthe body of the deceased was found to be simple in nature. Theinjury on the chest caused by a blunt weapon led to the fracture ofrib causing rupture of lung and proved fatal. It was thus contended that the accused persons neither had the intention northe knowledge that causing such injury to the deceased couldresult into his death. It was further urged that the appellants donot have criminal antecedents. They are young students and havesuffered imprisonment of terms varying from 6 years to 7 yearsand thus the conviction of the appellants should be altered eitherto Section 325 IPC or to Section 304 Part II IPC and they shouldbe released on the sentences already undergone by them. Insupport of their contention learned counsel for the appellantsplaced reliance on the decision of the Hon’ble Supreme Court inthe case of Khuman Singh & Ors. Vs. State of MadhyaPradeshformed an unlawful assembly andbrutally assaulted the deceased Pradeep Gautam without anyrhyme or reason and inflicted a forceful injury on the chest of thedeceased by a heavy implement i.e. a baseball bat causingfracture of the rib and as a result the lung was ruptured leadingto instantaneous death. Thus the learned Public Prosecutor urged[CRLA 71 2015]that the conviction of the appellants as recorded by the trial courtdoes not warrant any interference by this court in these appeals.She thus implored the court to reject the appeals in toto.We have given our thoughtful consideration to thesubmissions advanced at bar and have gone through the materialavailable on record.Learned counsel representing the appellants have fairlyconceded that the prosecution has proved participation of theaccused in the incident beyond all manner of doubt from theevidence of the eye witnesses referred to supra. Their argumentwas limited to the aspect that the incident took place on the spurof the moment without any pre meditation and that the accuseddid not act in a cruel manner. They were young boys at the timeof the incident. The incident erupted all of a sudden following thequarrel which took place in the morning. The accused could nothave comprehended by any stretch of imagination that a blow ofblunt weapon landed on the chest of the victim could prove fatal.Thus the accused neither had any intention nor the knowledgethat inflicting such injury could lead to the death of the victim.Their submission was limited to the nature of offence. After appreciating the evidence of the eye witnessesDeepakand Brijesh Kumarwe find that they haveportrayed the incident in two parts. In the first part a trivialverbal altercation took place between the parties wherein accusedBrijesh gave a slap to Sunny. In the second part the deceasedand his two companions Sonu and Deepak had gone to the sameplace where the incident of morning happened and there it isalleged that Kuldeep Brijesh Hariram and 10 12 other boys came[CRLA 71 2015]around and all these assailants who were armed with baseballbats and sticks etc. launched an indiscriminate assault on themembers of the complainant party. However the allegation thatnearly 15 persons armed with baseball bats launched anindiscriminate assault on the members of the complainant party isnot corroborated and is rather contradicted by the medicalevidence because Dr. Ashok Moondraafter conductingpostmortem took note of presence of only 7 injuries on theperson of the deceased of which 2 were superficial abrasions.The head injury was found to be skin deep and did not cause anydamage to the internal organs. Three injuries were noticed on thethoracic region one of which led to the fracture of the4th right rib which in turn perforated the right lung causing bleeding andultimately the victim expired as a result thereof. In thesecircumstances we are of the view that the accused can not beclothed with either the intention or the knowledge that by causingsuch injury on the chest of the victim they could cause his death.In the cases ofKashi Ram & Ors. Vs. State of MadhyaPradesh(ii) Dev Raj & Ors. Vs. Stateof Himachal PradeshandTaraChand & Ors. Vs. State of HaryanaHon’ble Supreme Court examined almost identical facts andcircumstances and held that the offence attributed to the accusedwould not be one punishable under Section 302 IPC but ratherthat under Section 304 Part II IPC. In wake of the discussion made hereinabove we are ofthe view that the conviction of the accused appellants deserves tobe toned down from the offence punishable Section 302 IPC read[CRLA 71 2015]with Section 149 IPC to one under Section 304 Part II IPC readwith Section 149 IPC.Accordingly the impugned judgment dated 19.12.2014passed by the learned Additional Sessions Judge No.5 Kota inSessions Case No.03 2011 is modified in the terms that convictionof the appellants is altered from Section 302 read with Section149 IPC to Section 304 Part II read with Section 149 IPC.However their conviction and sentence awarded for the offenceunder Section 147 IPC is affirmed. For the offence under Section304 Part II read with Section 149 IPC the sentence awarded tothe appellants is reduced to the period already undergone bythem as mentioned above. In addition thereto we hereby imposea fine of Rs.1 00 000 each upon each appellant. In default ofpayment of fine they shall further undergo simple imprisonmentof six months. The fine upon being deposited shall be paid to thefamily members of the victim by way of compensation underSection 357 CrPC. We further direct that the District LegalServices Authority Kota shall initiate proceedings for awardingcompensation to the family members of the deceased under theVictim Compensation Scheme. However keeping in view the provisions of Section 437 ACr.P.C. each of the appellants is directed to furnish a personalbond in the sum of Rs.15 000 and a surety bond in the likeamount before the learned trial court which shall be effective fora period of six months to the effect that in the event of filing of aSpecial Leave Petition against the present judgment on receipt ofnotice thereof the appellants shall appear before the SupremeCourt.[CRLA 71 2015]The appeals are partly allowed in these terms.The record be returned back to the trial court forthwith.(RAMESHWAR VYAS) J(SANDEEP MEHTA) JPramod Devesh 