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2005 DIGILAW 2534 (RAJ)

Chunni Lal v. State of Rajasthan

2005-09-21

MANAK MOHTA

body2005
Judgment N.N. Mathur, J.-The appellant Chunni Lal and his two sons namely Devi Lal and Dei Lal have been convicted for offence under Sections 302 and 302/34, IPC and sentenced to imprisonment for life by the Judgment of the Additional Sessions Judge, Chittorgarh dated 01/08/1991. The appellants have also been convicted for the allied offences under Sections 323, 324, 323/34 and 324/34, IPC. 2. At the outset, it may be pointed out that the appeal against the first appellant Chunni Lal has abated by the order dated 05.01.2000 on account of his death. Thus, the appeal survives only on behalf of appellants Devi Lal and Dei Lal, who have been convicted for offence under Section 302 with the aid of Section 34, IPC. 3. Briefly stated the prosecution case is that on 30.09.1988, PW. 1 Bhanwar Singh lodged an oral First Information Report at Police Station Gangrar stating inter alia that in the intervening night of 29-30.09.1988 at about 10:00 p.m. Raghuveer Singh with gun in his hand, Manohar Singh and Karan Singh armed with lathis proceeded towards their village. The informant also followed them. When all the three reached near the house of Chunni Lal, the three accused persons namely Chunni Lal, Devi Lal and Dei Lal attacked on them. Dei Lal brought a sword from inside the house and passed over the same to the first appellant Chunni Lal. Chunni Lal gave a sword blow on Karan Singh, causing injuries on his head and shoulder. Both the appellants Dei Lal and Devi Lal also assaulted PW. 11 Raghuveer Singh and PW. 12 Manohar Singh. Karan Singh succumbed to the injuries instantaneously. The incident was also witnessed by PW. 4 Jagroop and PW. 5 Babru. The injured Raghuveer Singh and Manohar Singh rushed to their house, from where they were taken to the hospital in a bullock kart. According to the informant, Raghuveer Singh had inquired from Chunni Lal as to the whereabouts of Mst. Maya, the daughter of Chunni Lals brother Taru. He also threatened them to produce her from the hidus. 4. On this information, police registered a case under Section 302, IPC and proceed with the investigation. After usual investigation, police filed a charge-sheet against the three accused-appellants for offence under Sections 302, 302/34, 324/34 and 323/34. The appellants denied the charges levelled against them and claimed trial. He also threatened them to produce her from the hidus. 4. On this information, police registered a case under Section 302, IPC and proceed with the investigation. After usual investigation, police filed a charge-sheet against the three accused-appellants for offence under Sections 302, 302/34, 324/34 and 323/34. The appellants denied the charges levelled against them and claimed trial. The prosecution in support of its case examined 20 witnesses and produced certain documents. The appellants in their statements under Section 313 of the Code of Criminal Procedure denied the correctness of he prosecution evidence appearing against them. The appellant Chunni Lal stated that Raghuveer Singh and his party arrived at his house and arrested him. He has lodged a First Information Report of the case, in which Raghuveer Singh and others have been arrested. The instant case has been instituted against him as a counter blast. The appellant Devi Lal has made the statement almost in the same manner. The appellant Dei Lal has stated that Raghuveer Singh and his party arrived at his house and made a assault on him and his father. He has stated that Raghuveer Singh was armed with gun, Manohar Singh and Karan Singh were carrying lathis with them. He has also stated that an First Information Report of the incident has been lodged against the complainant party. The instant case has been registered against them as a counter blast. The appellants in support of their case examined Mst. Maya. During the trial, the prosecution examined PW. 1 Bhanwar Singh, PW. 4 Jagroop, PW. 5 Babru, PW. 6 Kajod, PW. 11 Raghuveer Singh and PW. 12 Manohar Singh as eye-witnesses. Except PW. 11 Raghuveer Singh and PW. 12 Manohar Singh, all the eye-witnesses referred to above did not support the prosecution case, as such, they were declared hostile. The recovery of weapons of offence from the appellants has not been relied upon by the trial Court as there is no evidence of presence of blood on any of the weapons and further that the prosecution did not produce the F.S.L. report. The trial Court on appreciation of the evidence arrived at a conclusion that there was an free fight between both the groups. The trial Court on appreciation of the evidence arrived at a conclusion that there was an free fight between both the groups. The learned Judge also held that the appellant Chunni Lal caused injuries on the person of the deceased Karan Singh with knowledge that such an injury may cause death in ordinary course of nature. Both the accused persons also participated in the assault, as such, they shared common intention with the main accused Chunni Lal to cause murder of Karan Singh. In view of the finding, the learned Judge convicted and sentenced the appellants in the manner stated above. 5. Challenging the conviction of the appellants Devi Lal and Dei Lal, it is contended by the learned Counsel that the trial Court has failed to appreciate that there is ample evidence to show that the appellants acted in exercise of the right of private defence. In the alternate, it is submitted that there is no evidence to show that the appellant Dei Lal and Devi Lal shared a common intention with Chunni Lal in committing the murder of deceased Karan Singh. On the other hand, learned Public Prosecutor has supported the Judgment of the learned trial Court. 6. We have scanned the entire evidence with the assistance of the learned Counsel for the appellants and considered the rival contentions. Significantly, PW. 1 Bhanwar Singh, the informant has not supported the prosecution case and, as such, he has been declared hostile. The other eye-witnesses i.e. PW. 2 Nanu, PW. 4 Jagroop, PW. 5 Babru and PW. 6 Kajod have also not supported the prosecution case. However, their evidence is consistent on the fact that the dead-body of Karan Singh was found outside the house of appellant Chunni Lal and a scuffle had taken place between the two groups. Before we advert to the evidence of other eye-witnesses PW. 11 Raghuveer Singh and PW. 12 Manohar Singh, we may refer to the medical evidence to show that deceased Karan Singh died of homicidal death. .7. PW. 10 Dr. Anil Gupta has stated that he conducted the post-mortem of the dead body of Karan Singh and noticed the following injuries vide Ex.P/13 as follows: 1. One incised wound is present on right side of fore head and head. Size about 16 cm x 1 1/2 cm x 10 cm (length x width x depth) edges are sharp and adverted. Anil Gupta has stated that he conducted the post-mortem of the dead body of Karan Singh and noticed the following injuries vide Ex.P/13 as follows: 1. One incised wound is present on right side of fore head and head. Size about 16 cm x 1 1/2 cm x 10 cm (length x width x depth) edges are sharp and adverted. Sharply cut frontal and parietal bones are visible, rupture membrane & intact brain tissue are visible. injured part and surrounded part is stained with blood. 2. One incised wound is present on anterior, superior and posterior aspect of right shoulder size about (length x width x depth) 22cm x 8cm x 8cm. Edges of wound is sharp, muscles and bones are also sharply cut. Edges are averted and stained with blood. 8. In his opinion, the cause of death was hemorrhagic shock due to massive hemorrhage. .9. PW. 10 Dr. Anil Gupta has also proved the injuries on the person of appellant Dei Lal vide Ex. D/4. He has stated that the appellant Dei Lal sustained 5 injuries caused by blunt object. In his opinion all the injuries were simple in nature. In the cross-examination, he admitted of examining the injuries on the person of the appellant Dei Lal. He has proved the injuries vide Ex. D/4 as follows: 1. Abrasion 10cm x 1 cm on posterior aspect of left forearm 12 cm proximal to wrist joint. 2. Abrasion 10cm x 1cm on posterior aspect of left forearm 4 cm proximal to wrist joint. 3. Multiple abrasions 20cm x 2 cm on posterior aspect of right forearm on medial aspect. 4. Multiple abrasions 1cm x1cm each on outerior aspect of left Knee joint. 5. Multiple abrasions 3 cm x 2 cm on outerior aspect of left Knee Joint. 10. PW. 10 Dr. Anil Gupta has also examined the injuries of appellant Chunni Lal vide Ex.D/5 as follows: 1. Multiple abrasions on right side of head 7 cm posterior to right frontal. 2. Swelling with tenderness on interior aspect of right shoulder. 3. Bruise with abrasion with tenderness on left side of back on 10th, 11th & 12th rib area 6 cm lateral to mid line. 11. PW. 15 Dr. Himmat Singh has stated that he had examined the injuries of Raghuveer Singh vide Ex. P/14 as follows: 1. 2. Swelling with tenderness on interior aspect of right shoulder. 3. Bruise with abrasion with tenderness on left side of back on 10th, 11th & 12th rib area 6 cm lateral to mid line. 11. PW. 15 Dr. Himmat Singh has stated that he had examined the injuries of Raghuveer Singh vide Ex. P/14 as follows: 1. Incised wound- 6 x 3 x 2 cm wider on back on Rt. side, oblique, margins clean cut and bleeding. 2. Incised wound- 4x 2x 2 cm wider over left side of left eye, margins clean cut and gapping in wound. 3. Incised wound- 6x 3x 2 cm wider over right shoulder, oblique, gapping. 4. Bruises - 4 x 3cm wider over right hand reddish. 12. In his opinion, all the injuries were simple in nature. The first three injuries were caused by sharp edged weapon and injury No.4 was caused by blunt weapon. 13. He has also examined the injuries of Manohar Singh vide Ex.P/15 as follows: 1. Incised wound-4 x 2 x 1cm over left parietal head, margin clean cut and gapping. 2. Incised wound-4 x 2x 1 1/2 cm wider over left upper arm. 3. Bruises-6 x 3 cm wider over left forearm reddish. 14. In his opinion all the injuries were simple in nature. Injuries No.1 and 2 were caused by sharp edged weapon and injury No. 3 was caused by blunt weapon. 15. Reverting to the testimony of eye-witnesses, we may refer to the Statement of PW. 11 Raghuveer Singh. He has stated that on the date of incident which he alongwith Manohar Singh, Karan Singh and Bhanwar Singh were on the way to village, and when they reached infront of the house of Chummi Lal, all of a sudden, Chunni Lal came out of the house and made assault by sword on Karan Singh. As a result of assault, Karan Singh fell down. He rushed to the spot. Devi Lal and Dei Lal made assault on him. He denied the suggestion that he alongwith Manohar Singh and Karan Singh armed with deadly weapons went to the house of Chunni Lal and inquired about Mst. Maya, daughter of Taru. He also denied the suggestion that he alongwith two others assaulted the appellants Chunni Lal, Devi Lal and Dei Lal. However, he admitted that he alongwith two others were put to trial for offence under Section 307, IPC. 16. Maya, daughter of Taru. He also denied the suggestion that he alongwith two others assaulted the appellants Chunni Lal, Devi Lal and Dei Lal. However, he admitted that he alongwith two others were put to trial for offence under Section 307, IPC. 16. PW. 12 Manohar Singh has also made statement almost on the line of PW. 11 Raghuveer Singh. He stated that at about 8-9 p.m. when he alongwith Raghuveer Singh and Karan Singh reached near the house of Chunni Lal, an oral altercation took place between them, and the accused persons. Chunni Lal gave a sword blow on the head of deceased Karan Singh. In the cross-examination, he admitted that they are facing trial with respect to the same incident for offence under Section 307, IPC. It is emerges from the evidence of two witnesses that a scuffle had taken place between the two parties. A counter First Information Report was lodged of the incident. We are told that PW . 11 Raghuveer Singh and PW . 12 Manohar Singh have been convicted for offence under Section 323, IPC for the same incident. Thus the trial Court has rightly held that a free fight had taken place between the two groups. It is well established that when there is a free fight, it is not possible to say that the accused persons were the aggressors. 17. In these circumstances, the liability of each of the accused has to be considered independently. No implicit reliance can be placed on the testimony of PW . 11 Raghuveer Singh and PW . 12 Manohar Singh to the effect that they have also inflicted injuries on the appellants Devi Lal and Dei Lal. As it is a case of free fight the appellant Devi Lal and Dei Lal cannot be attributed sharing of common intention of murder of Karan Singh with main accused Chunni Lal. In these facts and circumstances, the conviction of the appellants Devi Lal and Dei Lal cannot sustained for offence under Section 302 with the aid of Section 34, IPC. 18. Consequently the criminal appeal is allowed. The conviction of the appellants Devi Lal and Dei Lal for offence under Section 302/34, IPC as well as for offence under Sections 324/34 and 323/34, IPC is set aside. The appeal filed by first appellant Chunni Lal stands dismissed as abated. 18. Consequently the criminal appeal is allowed. The conviction of the appellants Devi Lal and Dei Lal for offence under Section 302/34, IPC as well as for offence under Sections 324/34 and 323/34, IPC is set aside. The appeal filed by first appellant Chunni Lal stands dismissed as abated. The appellant Devi Lal is in jail, he shall be released forthwith if not required in any other case. The appellant Dei Lal is on bail. His bail bonds stand discharged.