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 & 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.
