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2006 DIGILAW 1303 (RAJ)

Lakhan Singh v. State of Rajathan

2006-04-24

N.K.JAIN

body2006
Judgment Narendra Kumar Jain, J.-This appeal on behalf of seven accused-appellants, namely, (1) Lakhan Singh S/o Shri Dwarka Lal, (2) Ramdev S/o Shri Kanhaiya Lal, (3) Kedar Lal S/o Shri Ramdev, (4) Harlal @ Harish S/o Shri Ramdev, (5) Chauthmal S/o Shri Ramdev, (6) Ramesh S/o Shri Ramdev, (7) Ram Bharosi S/o Shri Ramdev, is directed against Judgment and order dated 21.06.2002 passed by Additional District and Sessions Judge (Fast Track), Baran in Sessions Case No. 29/2001, whereby the learned trial Court convicted the accused-appellants under Sections 304-II, 304-II read with Sections 149, 148, 325 read with Sections 149 and 323 read with Section 149, IPC, and sentenced with imprisonment and fine as per details given in the Judgment and order of the trial Court, impugned in this appeal. 2. Briefly stated the facts of the case are that PW. 22 Krishna Murari lodged a written report Exhibit P/17 at Police Station Anta, District Baran, wherein it was alleged that on 23.02.2001 he had gone with buffaloes and at that time the accused-persons Ramdev, Ramesh, Kedarlal, Ram Bharose, Harlal, Lakhan and Chauthmal came armed with lathis and dharia. The accused-appellant Ram Bharose was armed with dharia and other accused-persons were having lathis in their hands. They all came to give beating on his person and immediately thereafter he left the buffaloes and ran towards his house. When he entered his house all the accused-persons also entered therein and gave beating on his person. He was inflicted injuries by Ramdev Gurjar. The other persons, who were sitting in his house, namely, Parmanand, Jagannath, Bharat Prakash and Om Prakash, came to his rescue. The accused-persons also inflicted injuries on those persons, who came on his rescue. Accused-appellant Ram Bharose inflicted injury on the head of Parmanand by dharia and other accused-persons gave beating by lathis. 3. On the basis of this information, the police registered a case under Sections 307, 452, 147, 148, 149 and 323, IPC, and started investigation. 4. Injured Parmanand succumbed to the injuries and his postmortem was conducted and case was converted into an offence under Section 302, IPC. Necessary investigation was done by the police and a challan was submitted against the accused-persons. 5. The learned trial Court framed charge against the accused-persons as per the detail mentioned in the impugned Judgment . The prosecution examined 32 witnesses and produced documentary evidence Exhibit P-1 to Exhibit P-43. Necessary investigation was done by the police and a challan was submitted against the accused-persons. 5. The learned trial Court framed charge against the accused-persons as per the detail mentioned in the impugned Judgment . The prosecution examined 32 witnesses and produced documentary evidence Exhibit P-1 to Exhibit P-43. Thereafter, statements of accused-appellants were recorded under Section 313, CrPC. The accused-appellant Ram Bharose, in his statement under Section 313, CrPC, stated that he was Teacher and on 23.02.2001 going to School to teach the students and all of a sudden the members of complainant party, namely, Krishna Murari, Om Prakash, Parmanand, Bharat Prakash and Jagannath, gave beating on his person and he also lodged a report in this regard and the police got him medically examined. 6. The learned trial Court, after considering the evidence on the record and the arguments of both the sides, acquitted the accused-appellant Ram Bharose from the offence under Section 302, IPC, and other co-accused-appellants of the offence under Section 302 read with Section 149, IPC. The accused-appellant Ram Bharose was convicted under Section 304-II and other co-accused-appellants under Section 304-II read with Section 149 IPC. The accused-appellants were also convicted under Sections 148, 325 read with Section 149 and Section 323 read with Section 149, IPC, and sentenced them with imprisonment and fine. 7. The learned Counsel for the accused-appellants contended that as per the admitted case of the prosecution itself it is clear that there was no unlawful assembly to inflict injury on the person of deceased Parmanand with the intention to kill him, therefore, the learned trial Court committed an illegality in convicting the accused-appellants with the aid of Section 149, IPC, and under Section 148, IPC. He further contended that the accused-appellant Ram Bharose also sustained eight injuries in this incident and out of eight injuries, the Injury No. 6 was opined as grievous in nature. The prosecution has not explained as to how the accused-appellant Ram Bharose sustained eight injuries including the grievous injury on his person in this incident, therefore, it is clear that the genesis and the origin of the occurrence has been withheld from the Court by the prosecution, therefore, an inference is liable to be drawn against the prosecution. The prosecution has not explained as to how the accused-appellant Ram Bharose sustained eight injuries including the grievous injury on his person in this incident, therefore, it is clear that the genesis and the origin of the occurrence has been withheld from the Court by the prosecution, therefore, an inference is liable to be drawn against the prosecution. He contended that even if a case of private defence has not been pleaded by the accused-appellants then it was a duty of the Court itself to see as to how the injury, which is opined to be grievous in nature, came on the person of the accused-appellant Ram Bharose. The learned Counsel for the accused-appellants contended that in fact the injured witnesses gave beating on the person of accused-appellant Ram Bharose, which is clear from the Exhibit-D/1, the FIR lodged by accused-appellant Ram Bharose and the medical report (Exhibit-D/5) of accused-appellant Ram Bharose, but in view of the fact that Parmanand, belonging to complainant party, died in this incident, the case was registered against the accused-appellants for the offence under Section 302, IPC. However, the trial Court itself has recorded a finding that this was not a case of culpable homicide amounting to murder, therefore, acquitted all accused-persons of the charge under Sections 302 and 302/149, IPC. He further contended that the accused -persons even could not have been convicted by the trial Court under Section 304-II and 304-II/149, IPC, and for other offence. His contention is that the learned trial Court has not considered the effect of cross FIR Exhibit-D/1 as well as the injury report (Exhibit-D/5) of accused-appellant Ram Bharose wherein injury No. 6 received by him, has been described as grievous in nature and by not considering this aspect of the matter the learned trial Court has wrongly convicted and sentenced the accused-appellants. 8. The learned Public Prosecutor as well as the learned Counsel for the complainant contended that the learned trial Court has considered the oral and documentary evidence of the prosecution and rightly convicted and sentenced the accused-appellants. 9. I have considered the rival submissions and minutely scanned the impugned Judgment as well as the record of the trial Court. 10. From the oral and documentary evidence produced on behalf of both the parties there is no dispute that Parmanand sustained injuries in this incident, which is clear from Exhibit-P/21 dated 23.02.2001. 9. I have considered the rival submissions and minutely scanned the impugned Judgment as well as the record of the trial Court. 10. From the oral and documentary evidence produced on behalf of both the parties there is no dispute that Parmanand sustained injuries in this incident, which is clear from Exhibit-P/21 dated 23.02.2001. As per Exhibit-P/21 the deceased Parmanand sustained three injuries, all by blunt object. Parmanand ultimately succumbed to the injuries and he died on 24.02.2001. The prosecution did not produce his postmortem report on the record. However, the postmortem report of Parmanand was placed on the record as defence document i.e., Exhibit-D/4. In the postmortem report it was opined that death of Parmanand had been due to coma resulted due to antemortem head injury. Three injuries were mentioned to have been received by blunt object. There were four injured persons from the side of the complainant party, namely, PW. 22 Krishna Murari, who sustained three simple injures (medial report is Exhibit-P/24) by blunt object, the medical report, PW. 25 Om Prakash, who sustained four simple injuries (medical-report is Exhibit-P/23) by blunt object, PW. 26 Jagannath, who sustained six simple injuries (medical-report is Exhibit-P/22) by blunt object and PW. 28 Bharat Prakash, who sustained six injuries (medical-report is Exhibit P/20) by blunt object. The injury No. 4 received by injured PW. 28 Bharat Prakash was opined as grievous in nature. The written report Exhibit-P/17 lodged by injured Krishna Murari was registered on 23.02.2001 at 11.30 AM, whereas FIR lodged by accused Ram Bharose of this incident was also registered on 23.02.2001 itself at 9.45 A.M. i.e., much before lodging the report by complainant party. Exhibit-D/5 is the injury report of accused Ram Bharose. Accused-appellant Ram Bharose sustained eight injuries and all were caused by blunt object. Injuries No. 1 to 5, 7 and 8 were opined as simple in nature but injury No. 6 was opined as grievous in nature. 11. In view of the above admitted factual aspect of the matter the point for determination in the present case is as to whether there was an unlawful assembly of five or more accused-persons and an offence has been committed by any member of that unlawful assembly in prosecution of the common object of that assembly. 11. In view of the above admitted factual aspect of the matter the point for determination in the present case is as to whether there was an unlawful assembly of five or more accused-persons and an offence has been committed by any member of that unlawful assembly in prosecution of the common object of that assembly. The another point is whether it was a duty of the prosecution to explain the grievous injury sustained by the accused Ram Bharose, or not, and in absence of any explanation about it, what inference can be drawn against the prosecution for withholding the genesis and origin of the occurrence. 12. So far as the first point relating to unlawful assembly of five or more accused-persons, in the facts and circumstances of the present case, is concerned, it is clear from the written report Exhibit-P/17 and FIR Exhibit-P/18, and from the statement of the prosecution witnesses that Krishna Murari had gone with buffaloes and all of a sudden the accused-persons came and wanted to beat him, but he ran away and entered in his house. Thereafter the accused-persons entered his house and inflicted injury on his person. On this, the deceased and injured persons, who were in the house, came to rescue Krishna Murari. From the above facts it is clear that there was no object of the accused-persons to inflict any injuries on the person of deceased Parmanand or other injured persons, namely, Om Prakash, Jagannath and Bharat Prakash. The only conclusion which can be drawn is that the accused-persons wanted to teach a lesson to Krishna Murari (PW. 22). In this connection the statement of accused Ram Bharose recorded under Section 313 CrPC, is also relevant to be referred here wherein he stated that he was a Teacher in Private School Gyan Deep Baal Vidhya Mandir. On 23.02.2001 he was going to school to attend his duty and all of a sudden the members of the complainant party, namely, Krishna Murari, Om Prakash, Parmanand, Bharat Prakash and Jagannath stopped him on the way and started beating him and he also lodged report in this regard to the police. The accused Ram Bharose in his FIR (Exhibit-D/1) mentioned the same facts which he stated in his statement recorded under Section 313 CrPC. The accused Ram Bharose in his FIR (Exhibit-D/1) mentioned the same facts which he stated in his statement recorded under Section 313 CrPC. The injury report (Exhibit-D/5) of accused Ram Bharose is also on the record wherein it is mentioned that he sustained eight injuries, out of which the injury No. 6 was opined as grievous in nature. 13. A careful scrutiny of the entire prosecution evidence goes to show that there was no common object of the accused-persons to kill Parmanand or to commit his murder. The learned trial Court itself has acquitted accused-appellant Ram Bharose of the charge under Section 302 and other accused-appellants of the charge under Section 302 read with Section 149, IPC. However, from the above discussion of facts I find that the learned trial Court has committed an illegality in convicting the accused-appellants with the aid of Section 149, IPC, for the offence under Sections 304-II, 325 and 323 IPC. The leaned trial Court also committed an illegality in convicting the accused-appellants under Section 148, IPC. 14. Now the question arises as to what is the individual act of each accused-appellants and in the facts and circumstances of the present case particularly when the accused-appellant Ram Bharose sustained grievous injury and further that his injury has not been explained by the prosecution, the conviction of the accused-appellants under Section 304-II, IPC and under other sections of the IPC awarded by the learned trial Court, can be maintained, or not. .15. The Honble Apex Court in Lakshmi Singh & Ors. vs. State of Bihar, AIR 1976 SC 2263 , observed that non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:- .(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; .(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable; .(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes improbability with that of the prosecution one. 16. In Rizan & Anr. vs. State of Chhatisgarh, AIR 2003 SC 976 , the Honble Supreme Court, in Para 13 of the Judgment , observed that Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression right of private defence. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. The Honble Apex Court further observed that where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self -defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. The Honble Supreme Court further observed that the number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. Non-explanation of injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle applies to cases where the injuries sustained by the accused are of minor and superficial in nature or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. 17. In Kashiram vs. State of M.P., 2002 SCC (Cri.) 68, the Honble Supreme Court observed that the investigating officer, having found one of the accused having sustained injuries in the course of the same incident in which those belonging to the prosecution party sustained injuries, should have at lease made an effort at investigating the cause of , and the circumstances resulting in, injuries on the person of the accused. If only this would have been done, the defence version of the incident would have been before the investigating officer and the investigation would not have been one-sided. Investigating Officer having failed to do so the investigation suffers from a serious infirmity which has prejudiced the accused in their defence. 18. It is also relevant to mention that as per the statement of the prosecution witnesses it is clear that the accused Ram Bharose inflicted injury on the person of deceased by dharia, which is commonly known as sharp-edged-weapon. The prosecution witnesses have not disclosed whether the injury was inflicted by its sharp-side or back of it i.e., blund object. In cross-examination one of the prosecution witnesses has stated that he does not know as to whether the injury was inflicted by dharia from its sharp side or back of it. 19. The prosecution witnesses have not disclosed whether the injury was inflicted by its sharp-side or back of it i.e., blund object. In cross-examination one of the prosecution witnesses has stated that he does not know as to whether the injury was inflicted by dharia from its sharp side or back of it. 19. In Hallu vs. State of M.P., AIR 1974 SC 1936 , the Honble Supreme Court observed as under: -“11......We should have thought that normally when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon. 20. The prosecution did not get it clarified from any of the prosecution witnesses whether the accused Ram Bharose used sharp side of the weapon dharia or caused injury from its blunt side and in absence thereof it cannot be presumed that he used blunt object. The prosecution witnesses have stated that the injury was inflicted by dharia meaning thereby the injury was caused by sharp-edged-weapon but a bare perusal of injury report of deceased Parmanand (Exhibit-P/21) as well as his postmortem report (Exhibit-D/4) would reveal that he did not sustain any injury by sharp-edged weapon on his person and in absence of it, it is clear that the prosecution version is not corroborated with the medical report also. 21. It is clear from the facts of the present case, as discussed above, that the Investigating Officer did not find out as to how the accused Ram Bharose sustained injuries. This is not a case of minor or superficial injuries but accused Ram Bharose also sustained grievous injury, therefore, it was necessary for the prosecution to explain it particularly when there was cross FIR wherein it was stated that the accused Ram Bharose was going to attend his duty in the School and all of a sudden the members of the complainant party attacked on him. In these circumstances it is clear that the genesis and the origin of the occurrence in the present case has been withheld by the prosecution. 22. The Honble Supreme Court in Lakshmi Singh & Ors. In these circumstances it is clear that the genesis and the origin of the occurrence in the present case has been withheld by the prosecution. 22. The Honble Supreme Court in Lakshmi Singh & Ors. vs. State of Bihar (Supra), has held that non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw inference that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version before the Court; or that the witnesses, who have denied the presence of the injuries on the person of the accused, are lying on a most material point and, therefore, their evidence is unreliable; or that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. 23. The fact that accused Ram Bharose sustained grievous injury in the occurrence in question, is proved form Exhibit-D/5, his medical report, which is corroborated by Exhibit-D/1, the FIR, but the prosecution evidence could not explain as to under what circumstance the accused Ram Bharose sustained grievous injury in this incident itself . In these circumstances it is clear that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented the true version before the Court and it creates serious doubt on the prosecution story. In these circumstances the accused-appellants become entitled for the benefit of doubt. 4.24. The learned trial Court has not considered the above referred facts and circumstances of the present case and without considering the documents Exhibit-D/1 and Exhibit-D/5 has only held that because of the accused-appellants the occurrence took place and they are responsible for the offence. 25. In view of the above discussion, I allow the appeal of all seven accused-appellants. Their conviction and sentence passed by the trial Court is set aside. The accused-appellants No. 1 to 6 are on bail and their bail bonds are discharged. Accused-appellant Ram Bharose is in custody and he may be released forthwith in case his custody is not required in any other case.