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2000 DIGILAW 396 (RAJ)

Jagannath v. State of Rajasthan

2000-03-30

D.N.JOSHI, N.N.MATHUR

body2000
JUDGMENT 1. - This appeal is directed against the judgment dated 12.3.1981 passed by the learned Addl. Sessions Judge, Dausa convicting the 2nd appellant-Keshra, 3rd appellant-Nathu, 4th appellant-Jagdish, 6th appellant-Ram Kishore and the 7th appellant-Sheonarain of offence under sections 148 & 302/149 IPC and sentenced each of them to imprisonment for life. All of them have been sentenced to 2 years R.I. for offence under section 148 IPC. Both the sentences have been ordered to run concurrently. 2. The 1st appellant-Jagannath, 5th appellant-Moolchand, 9th appellant-Jainarayan and 10th appellant-Ramrai have been convicted of offence under section 325 IPC. They have been given benefit of Section 360 of Cr.P.C. The 8th appellant-Ramratan & 11th appellant-Ramchandra have been convicted of offence under section 323 IPC. They have been given benefit of Section 360 of Cr.P.C. 3. The prosecution case as set out during the trial is that in village Gothra there is public pond in khasra No. 124. On 1.8.1979, the accused persons were seen cultivating the said land reserved for the village pond. This was objected by the deceased-Kesrilal, PW 5 Shri Narayan, PW 6 Gasi, PW 7 Ram Sahaya and PW 1 Gopilal. On a call being given the accused-Nathu, Sheonarayan, Madho, Jagdish Ramchandra, Keshar and Ram Kishore and about 20 other persons arrived there armed with deadly weapons. The accused-Madho, Nathu, Jagdish Sheonarayan and Rain Kishore surrounded Keshri Lal and gave him severe beatings. The other accused persons surrounded Ram Sahaya. He also sustained number of injuries. The accused-Ram Rakh inflicted injury on the head of Ram Sahaya. The accused Moolchand and Jainarayan and other 3 to 4 persons surrounded Gopal, Ghasi, Sheonarayan, Ram Kalyan, Ram Sahaya and caused injuries to them. Hearing the cries, Bhoora Ram, Govind Narayan, Hamath, Mahadev etc. arrived on the spot. The information of the incident was lodged by PW 8 Ram Kalyan at Police Station Bassi Distt. Jaipur on 1.8.1979 at 8.00 a.m. On this information, Police registered the case of offence under sections 307, 324,147 Sr 149 IPC and proceeded with the investigation. Keshri Lal died in the hospital at Jaipur and, therefore, offence under section 302 IPC was added. After usual investigation, Police laid charge-sheet against all the accused persons for various offences. 4. The accused persons denied the charge and claimed trial. The prosecution in support of the case examined 26 witnesses and produced large number of documents. Keshri Lal died in the hospital at Jaipur and, therefore, offence under section 302 IPC was added. After usual investigation, Police laid charge-sheet against all the accused persons for various offences. 4. The accused persons denied the charge and claimed trial. The prosecution in support of the case examined 26 witnesses and produced large number of documents. The accused persons in their statement under section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against them. They stated that they have been cultivating the pond land for more than 10 to 12 years. There was dispute between the parties. The complainant party came to dispossess them. It has also been stated by them that they were belaboured by them. In support of their case, they examined DW 1 Amar Jeet Singh, DW 2 Dr. R.S. Modi and DW 3 Ramswroop Sharma. On analysing the evidence, the trial Court found the charges proved against the accused persons and accordingly convicted and sentenced as noticed above. 5. Assailing the judgment, Mr. Doongar Singh, learned counsel appearing for the appellants submits that there is documentary evidence to show that the accused persons were never actually and physically dispossess from the disputed land. It is submitted that even if it is assumed that they were the trespassers on the land, then also they could have been dispossessed only in accordance with law. It is also submitted that the complainant party was the aggressor and the accused persons acted in right of private defence. The another contention raised by the learned counsel is that medical evidence shows that there is single external injury on the head of the deceased-Keshri Lal. The prosecution has not shown as who inflicted the said injury. In view of this, the conviction of these six appellants namely Nathu, Madho, Sheonarayan, Keshra, Ramkishore & Jagdish for offence under section 302/149 IPC is ex-facie illegal. On the other hand, learned Public Prosecutor has supported the judgment of the trial Court. 6. We have scanned the prosecution evidence PW 26 Dr. Dharmendra Sharma has stated that he conducted the post-mortem of the dead body of Keshra S/0 Ramchandra and noticed following injuries : 1. Haemotoma under whole of the scalp with compound fracture of frontal and both parietal bones. 2. Fracture of middle and posterior cranial fossal. 3. Fracture of second cervical vertibra with the under line and above mussles are contused. Haemotoma under whole of the scalp with compound fracture of frontal and both parietal bones. 2. Fracture of middle and posterior cranial fossal. 3. Fracture of second cervical vertibra with the under line and above mussles are contused. Membrans are conjested. 4. Extra dural haemotoma 6" x 5" on the left parietal and temporal bone region. 5. Brain was connected, subdural haemotoma over whole of the brain. He has proved post-mortem report Ex.P/85. He opined as follows : "In my opinion the cause of death is coma brought about as a result of brain injuries as mentioned above." In the cross-examination, he admitted that the external injury which is abrasion, was not sufficient to cause death. He also admitted that injury Nos. 3 & 4 were not sufficient to cause death. He stated that the injuries No. 2 & 3 could have been the result of injury No. 1. He further admitted that injury No. 4 has also been the result of injury No. 1. None of the ye-witnesses have been able to point as to who caused the fatal injury. All the eye-witnesses have categorically stated that the aforesaid six accused persons gave lathi blows on Keshri Lal. The fatal injury is only one. Therefore, the participation of atleast, five accused persons in the incident, causing injuries to Keshri Lal becomes doubtful. It is only the one person who must have struck lathi blow to the deceased-Keshari Lal. There is no satisfactory evidence to show that all the six persons intended to cause murder of Keshri Lal. But from the evidence it can be inferred that they intended to cause grievous hurt. In view of the matter, the conviction of the six appellants namely : Nathu,lagdish, Keshra, Ramkishore, Madho and Sheonarayan under section 302/149 IPC is not sustainable and liable to be converted for offence under section 325/149 IPC. Conviction of the other accused persons for offence under section 325 IPC is not seriously challenged. 7. In view of the aforesaid, this appeal is partly allowed and the conviction of the appellants: Nathu S/o Sheonarain, Jagdish S/o Ramrakh, Keshra ,S/o Sukhdeo, Ramkishora S/o Girdharilal, Madho S/o Ramsukh and Sheonarain S/o Ramsukh for offence under section 302/149 IPC and sentence of imprisonment for life is quashed and set aside. Their conviction is converted into Section 325/149 IPC. The conviction under section 148 IPC is maintained. Their conviction is converted into Section 325/149 IPC. The conviction under section 148 IPC is maintained. They are awarded the sentence which they have already undergone. Sentence under section 148 IPC is also reduced to the period already undergone. The conviction of the other appellants for offence under section 325 IPC is maintained. The period of good conduct is also over. The above stated six appellants are on bail, their bail bonds stand discharged.Appeal partly allowed. *******