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2004 DIGILAW 1355 (RAJ)

Kajod Singh v. State of Rajasthan

2004-09-17

RAJENDRA PRASAD VYAS, SHIV KUMAR SHARMA

body2004
Honble SHARMA, J.–The appellants eleven in number, were the accused on the file of learned Additional Sessions Judge, Sambhar Lake, District Jaipur bearing Sessions Case No. 12/1997. Learned Judge vide judgment dated March 7, 2003 convicted and sentenced the appellants as under:- Kajod Singh: U/s. 302 IPC: To suffer Imprisonment for life and fine of Rs. 5000/-, in default to further suffer One Year Simple Imprisonment. Ummed Singh, Hanuman Singh, Nand Singh, Sultan Singh, Bhagwan Singh, Ratan Singh, Jagdish Singh, Heera Singh, Sur Singh and Raghuveer Singh: + U/s. 302/149 IPC: To suffer Imprisonment for life and fine of Rs. 2000/-, in default to further suffer Three Years Rigorous Imprisonment. Ratan Singh: U/s. 325 IPC: To suffer Rigorous Imprisonment for Three Years and fine of Rs. 2000/-, in default to further suffer One Years Simple Imprisonment. Kajod Singh, Ummed Singh, Hanuman Singh, Nand Singh, Sultan Singh, Bhagwan Singh, Jagdish Singh, Heera Singh, Sur Singh and Raghuveer Singh: + U/s. 325/149 IPC: To suffer Rigorous Imprisonment for Three Years and fine of Rs. 2000/-, in default to further suffer One Year Simple Imprisonment. All appellants: U/s. 449 IPC: To suffer Rigorous Imprisonment for Five Years and fine of Rs. 2000/-, in default to further suffer One years Simple Imprisonment. All appellants: U/s. 148 IPC: To suffer Rigorous Imprisonment for Three Years and fine of Rs. 1000/-, in default to further suffer One Year Simple Imprisonment. All Appellants: U/s. 323 IPC: To suffer Rigorous Imprisonment for One Year and fine of Rs. 500/-, in default to further suffer Three Months Simple Imprisonment. The substantive sentences were directed to run concurrently. (2). It is the prosecution case that a written report (Ex.P-49) was lodged by Chhog Singh (PW.1) at the Police Station Phagi on November 11, 1996 at 4.00 PM with the averments that around 12 noon while he was grazing cattles on the way of Anrota, Kajod snatched lathi from his hand and inflicted blows on his person. Chog Singh managed to save himself and came back to his house where he was taken care of by Rukma, his sons daughter. After some times the appellants and one Prahlad Singh armed with lathis, pharsis, axes and swords arrived there and gave beating to Rukma with lathi. On hearing her hue and cry, Ram Singh (informants elder son) suddenly appeared and he was given beating with pharsis and swords. After some times the appellants and one Prahlad Singh armed with lathis, pharsis, axes and swords arrived there and gave beating to Rukma with lathi. On hearing her hue and cry, Ram Singh (informants elder son) suddenly appeared and he was given beating with pharsis and swords. When Hari Singh, Bhagwan Singh, Shambhu Singh, Jana and Bhanwar attempted to intervene they were also beaten with lathis and Pharsis. Police Station Phagi registered a case under sections 148, 149, 341, 323, 324, 307 and 452 IPC and investigation commenced. During investigation injured Ram Singh succumbed to his injuries and case was converted under Section 302 IPC. On completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge, Sambhar Lake, District Jaipur. Charges under Section 148, 323, 325 alternatively 325/149, 449, 302 alternatively 302/149 and 307 alternatively 307/149 IPC were framed against the appellants. The proceeding against the accused Prahlad Singh was initiated before the court of Juvenile Justice as he was a child at the time of incident. The prosecution in support of its case examined as may as 27 witnesses. In their explanation under Sec. 313 Cr.P.C. the appellants claimed innocence, however no defence evidence was adduced. Learned trial Judge on hearing the final submissions convicted and sentenced the appellant as indicated herein above. (3). The prosecution case is founded on the testimony of witnesses Chhog Singh (PW.1) informant, Harji Singh (PW.2) Chand Kanwar (PW.3), Rukma Kanwar (PW.4), Jyana Kanwar (PW.5), Bhanwar Kanwar (PW.6), Shambhu Singh (PW.10), Bhagwan Singh (PW.22), Geeta Kanwar (PW.24) and Gajraj Kanwar (PW.25). Version of these eye witnesses has been supported by the evidence of Dr. Seema Sharma (PW.9), Dr. Kuldeep Mahendirata (PW.14), Dr. Raghuraj Kishore Vyas (PW.19) and Dr. Sheetal Jain (PW.23), who examined the injuries sustained by the witnesses and performed autopsy on the dead body of Ram Singh. (4). Before adverting to the submissions advanced before us it will be appropriate at this juncture to scan the post mortem report and injury report. (5). The deceased Ram Singh vide post mortem report (Ex.P-47) sustained as many as 9 antemortem injuries as under:- ``1. Contusion of size 1 x 1cm placed over Rt. side lower lip. 2. Lacerated would of size 10cm x 3cm x Bone deep placed over parieto occipital region with clotted blood. 3. Bleeding from Rt. Ear present. (5). The deceased Ram Singh vide post mortem report (Ex.P-47) sustained as many as 9 antemortem injuries as under:- ``1. Contusion of size 1 x 1cm placed over Rt. side lower lip. 2. Lacerated would of size 10cm x 3cm x Bone deep placed over parieto occipital region with clotted blood. 3. Bleeding from Rt. Ear present. 4. Left Eye black eye with diffuse swelling present over left upper eye lid. 5. Bruise of Size 10 x 2cm Reddish blue in colour, obliquely placed over rt. Side front of chest lower part. 6. Abrasion of size 1 x 1 cm placed over at illiac chest. 7. Incised wound of size 8 x 3cm x bone deep margin are clean cut regular and well defined placed over part-medial aspect of rt. elbow c clotted blood. 8. Abrasion of size 1cm placed over medial aspect of left leg middle 1/3rd part. 9. Abrasion of size 2 x 1/4cm placed over front of neck lower part. The cause of death was coma brought about as a result of head injury, which was sufficient in the ordinary course of nature to cause death. (6). Shambhu Singh (PW.10) vide injury report (Ex.P-1) sustained following injuries:- ``1. Lacerated wound 3cm x 1cm x scalp deep placed vertically on Rt. Side of mid parietal line in middle 1/3 c fresh clotted blood. 2. Lacerated wound 1/4 x 1/4 cm x skin deep-swelling over dorsum of Rt. Little finger-fresh clotted blood. 3. Right thigh knee leg & foot is seen under POP slab. 4. Left thigh knee leg & foot is seen under POP slab. (7). Bhagwan Singh (PW.22) vide injury report (Ex.P-2) received following injuries:- ``1. Lacerated crush injury left ear divided in two vertical half-irregular margin and fresh clotted blood. 2. Diffuse swelling-tenderness over dorsum of Rt. hand. 3. Abrasion 3 x 1cm on area below Rt. lateral melledus. 4. 3 Abrasions of size 1 x 1/2, 1/2 x 1/2 & 1/2 x 1/4 near each other on medial aspect left leg upper 1/3 red in colour. (8). Harji Singh (PW.2) vide injury report (Ex.P-3) sustained following injuries:- ``1. Lacerated would 2.5 x 3/4 cm x scalp deep on Rt. Side supra occipital region-fresh clotted blood. 2. Deformity-diffuse swelling over dorsum of Rt. fore arm upto Rt. wrist. 3. Abrasion 1cm x 1/2cm over dorsum of left forearm upper 1/3-diffuse swelling. 4. (8). Harji Singh (PW.2) vide injury report (Ex.P-3) sustained following injuries:- ``1. Lacerated would 2.5 x 3/4 cm x scalp deep on Rt. Side supra occipital region-fresh clotted blood. 2. Deformity-diffuse swelling over dorsum of Rt. fore arm upto Rt. wrist. 3. Abrasion 1cm x 1/2cm over dorsum of left forearm upper 1/3-diffuse swelling. 4. Abrasion 1/2 x 1/4 cm over dorsum of left middle finger. 5. Abrasion 1/2 x 1/4 cm on anterior aspect of Rt. Thigh middle 1/3 red in colour. (9). Bhanwar Kanwar (PW.6) vide injury report (Ex.P-4) sustained following injuries:- ``1. Diffuse swelling over dorsum of left hand upto forearm lower 1/3. 2. Lacerated wound 1 x 1/2cm over left thenar eminence- fresh clotted. 3. C/o pain-tenderness over both lumber region. (10). Jana Kanwar (PW.9) vide injury report (Ex.P-9) sustained following injuries:- ``1. Lacerated wound 7cm long x 1/2cm on the valt 14cms from the Rt. Ear. (11). Chhog Singh (PW.1) vide injury report (Ex.P-10) sustained following injuries:- ``1. Lacerated wound 3 x 1/2 cm on the valt obliquely placed. 2. Lacerated wound 2 x 1/2cm irregular margin, vertically place 3cm above the nose. 3. Lacerated wound 2 x 1/2cm margin irregular, middle of the back of the left index finger. 4. Abrasion 2 x 2 cm on the back of the Lt. Forearm, on the back of the Lt. Forearm 5 cm below to the Lat. Epicondyle. (12). Smt. Rukma (PW.4) vide injury report (Ex.P-11) sustained following injuries:- ``1. Abrasion 2 x 2cm on the mid line back L1 L2 spine. 2. Tenderness 4 x 4cm & swelling, latral lower side of arm. 3. Tenderness 1 x 2cm & swelling, on the latr. side of the upper to lt. Forearm. 4. Tenderness & Swelling 4 x 4cm on posterior surface of the upper 1/3rd of Rt. Thigh. (13). Smt. Chand Kanwar (PW.3) vide injury report (Ex.P-12) sustained following injuries:- ``1. Tenderness, no visible swelling, 3 x 3cm on the latral side of the upper of the Rt. Thigh. (14). It also appears that at the time of arrest of appellant Hanuman Sigh, vide arrest memo (Ex.P54), there stitched wounds were found on his head. (15). It is contended on behalf of the accused that there were cross cases between the parties and the injuries on the person to deceased appeared to have been caused in the right of private defence. (15). It is contended on behalf of the accused that there were cross cases between the parties and the injuries on the person to deceased appeared to have been caused in the right of private defence. Dinesh Chand Sharma, Investigation Officer (PW.27) categorically stated that when Hanuman Singh was arrested on November 27, 1996 there were injuries on his head. The injuries were also found on the person of Ummed Singh. It was also admitted that the FIR 309/1996 was lodged by the accused party. It is further canvassed that no evidence has been led to show as to on which place the occurrence had taken place. Dinesh Chand Sharma deposed that in the site plan the presence of blood on the place of occurrence was not shown. Since the injuries on the person of Ummed Singh. Bhagwan Singh were not explained the conviction of appellants could not be sustained. It is next contended that Chhog Singh (PW.1) made improvements in his statement at the trial. The prosecution story has been changed completely by him at the trial. Similarly other eye witnesses harji Singh (PW.2), Chand Kanwar (PW.3), Rukma Kanwar (PW.4), Jana Kanwar (PW.5), Bhanwar Kanwar (PW.6), Shambhu Singh (PW.10), Bhagwan Singh (PW.22), Geeta Kanwar (PW.24) and Gajraj Kanwar (PW.25) made embellishments at the trial. The statements of these witnesses have not been corroborated by medical evidence. These witnesses have been contradicted with their previous statement recorded under Section 161 Cr.P.C., wherein they did not say that the head injury on the person of deceased Ram Singh was caused by the appellant Kajod. It is further urged that since the occurrence did not take place in side the house the offence under Section 449 IPC was not made out. There is no finding against any of the accused persons as to who caused the simple injuries on the person of injured witnesses. It is also contended that since there was free fight between the parties the could not have been convicted with the aid of section 149 IPC. The FIR was first lodged by accused party, thereafter the complainant party went to police station and instituted the FIR. It also appears that the accused party and complainant party were the neighbours and free fight ensued between them all of a sudden. (16). The FIR was first lodged by accused party, thereafter the complainant party went to police station and instituted the FIR. It also appears that the accused party and complainant party were the neighbours and free fight ensued between them all of a sudden. (16). Per contra, Learned Public Prosecutor supported the impugned judgment and contended that the prosecution has established the charges against the appellants beyond reasonable doubt. We were taken through the statements of witnesses and other material on record. (17). Having analysed the evidence adduced at the trial we find that there was a public way in front of the houses of the complainant party and the appellants and complainant party were the neighbours. This fact has been admitted by Harji Singh (PW.2), Chand Kanwar (PW.3) and Rukma Kanwar (PW.4). As per site plan Ex.P-39, incident had taken place near the public way. Dinesh Chand Sharma (PW.27), who conducted the investigation of the case, deposed that he got examined the injuries sustained by appellants Ummed Singh and Bhagwan Singh. On November 17, 1996 when Hanuman Singh was arrested, there were there stitched wounds on his head. According to Dinesh Chand Sharma, the injuries sustained by Hanuman Singh were caused by the complainant party in the exercise of right of private defence. He also admitted that the accused lodged FIR No. 309/96 against the complainant party. (18). Fact situation of the case emerges from the materials on record may be summarised thus:- (i) Accused appellants and complainant party were neighbours. There was a public way in front of the house of complainant party which goes to the fields of the accused appellants. (ii) On the fateful day around 12 noon while informant Chhog Singh was grazing cattles on the way of Arnota, there were altercations between accused appellant Kajod and informant Chhog Singh. Kajod snatched lathi from the hands of Chhog Singh and inflicted injuries on the person of Chhog Singh. (iii) While the accused appellants were coming back from the fields to their houses, they were restrained by the complainant party on accused of earlier incident occurred between Kajod and Chhog Singh. Free fight took place on the way. Ram Singh (deceased) suddenly appeared at the scene of occurrence and received lacerated wound on his head with the hands of Kajod, that proved fatal. Accused appellant Hanuman Singh also received three injuries on his head. Free fight took place on the way. Ram Singh (deceased) suddenly appeared at the scene of occurrence and received lacerated wound on his head with the hands of Kajod, that proved fatal. Accused appellant Hanuman Singh also received three injuries on his head. About the said injuries Dinesh Chand Sharma, I.O. said that the same were caused by the complainant party in exercise of right of private defence. (iv) In the written report (Ex.P-49) Chhog Singh stated that Ram Singh suddenly appeared and sustained injuries with Pharsi and Sward. There was no specific allegation against any of the accused as to who caused injury to whom. Even at the trial Chhog Singh did not say that who caused injuries to the deceased and other injured persons. However Harji Singh (PW.2), Chand Kanwar (PW.3), Rukma Kanwar (PW.4), Bhanwar Kanwar (PW. 6), Shakti Singh (PW.7), Shambhu Singh (PW.10), Bhagwan Singh (PW.22), Geeta Kanwar (PW.24) and Gajraj Kanwar (PW.25) attributed injury on the head of Ram Singh with iron rod to accused appellant Kajod. (v) In regard to causing injuries to injured persons, there are material contradictions in the statements of prosecution witnesses. (vi) Cross cases were registered and it was the accused party who instituted FIR No. 309/96 prior to the institution of FIR by the complainant party. (19). It is vehemently contended on behalf of the accused appellants that injuries on the deceased were caused in exercise of right of self defence. Whereas Dinesh Chand Sharma, I.O. deposed that it was the complainant party who inflicted injuries on the head of Hanuman Singh in exercise of the said right. The right of self defence is a very valuable right having a social purpose. It should not be construed narrowly. In view of this in assessing the value to be attached to the evidence, the court should rely more on human probabilities than on assertions of the witnesses (vide Vidhya Singh vs. State of M.P. (1). In the instant case it appears probable that on hearing from Chhog Singh that accused Kajod houses and while the accused appellants were passing through the public way opposite to the houses of the complainant party, they were assaulted. Free fight took place as a result of which accused appellant Hanuman Singh received three head injuries. In the instant case it appears probable that on hearing from Chhog Singh that accused Kajod houses and while the accused appellants were passing through the public way opposite to the houses of the complainant party, they were assaulted. Free fight took place as a result of which accused appellant Hanuman Singh received three head injuries. Accused appellant Kajod in the course of the fight gave one blow with iron rod on the head of Ram Singh who suddenly appeared at the scene and that blow proved fatal. In the circumstances even if the right of private defence was available to accused appellant Kajod, he had far exceeded it in dealing the fatal blow on the head of the deceased. He must, therefore, be held guilty under second part of Section 304 IPC. (20). Since mutual fight between the parties ensued, there was no common object and the appellants could not have been convicted under Section 148 and 149 IPC. The prosecution in our opinion has failed to establish charges under sections 325, 323 and 449 IPC against the appellants beyond reasonable doubt. Since there are material contradictions in the statements of prosecution witnesses no reliance can be placed on their testimony so far as the allegations of causing injuries to individuals and committing house trespass are concerned. (21). As a result of the above discussion, we dispose of the instant appeal as under:- (i) We allow the appeal of Ummed Singh, Hanuman Singh, Nand Singh, Sultan Singh, Bhagwan Singh, Ratan Singh, Jagdish Singh, Heera Singh, Sur Singh and Raghuveer Singh and set aside their conviction under Section 302 read with 149, 325, 325 read with 149, 449, 148 and 323 IPC. We acquit them from the said charges. All these appellants are on bail they need not surrender and their bail bonds stand discharged. (ii) We partly allow the appeal of appellant Kajod Singh and instead of Section 302 IPC, we convict him under Section 304 part II IPC. Since the appellant Kajod Singh is in confinement continuously since November 12, 1996 the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Kajod Singh who is in Jail shall be set at liberty forthwith, if not required to be detained in any other case. Since the appellant Kajod Singh is in confinement continuously since November 12, 1996 the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Kajod Singh who is in Jail shall be set at liberty forthwith, if not required to be detained in any other case. (iii) The impugned judgment dated March 7, 2003 of learned Additional Sessions Judge, Sambhar Lake, District Jaipur stands modified as indicated above.