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2006 DIGILAW 31 (RAJ)

Kailash v. State of Rajasthan

2006-01-03

SHASHI KANT SHARMA, SHIV KUMAR SHARMA

body2006
Honble SHARMA, J.–This case reveals indecent behaviour of the members of General Caste who did not like Marriage procession on mare of the bride grooms belonging to Scheduled Caste. The marriage procession was therefore deadly opposed and the police had to intervene. This incident resulted in death of Rajpal Singh. The appellants, six in number, along with co-accused Dayal Chand, Khanga Ram, Prakash, Leela Ram and Krishna were indicated for the murder of Rajpal Singh before the learned Additional Sessions Judge Behror District Alwar in Sessions Case No. 33/1999. Learned Judge vide Judgment dated April 30, 2002 convicted and sentenced the appellants as under:– Kailash: U/s. 302 IPC : To suffer life imprisonment and fine of Rs. 1000/-, in default to further suffer one year simple imprisonment. U/s. 148 IPC : To suffer rigorous imprisonment for two years and fine of Rs. 100/-, n default to further suffer fifteen days simple imprisonment. U/s. 325/149 IPC : To suffer rigorous imprisonment for five years and fine of Rs. 500/-, in default to further suffer six months simple imprisonment. U/s. 324/149 IPC : To suffer rigorous imprisonment for two years and fine of Rs. 200/-, in default to further suffer two months simple imprisonment. U/s. 323/149 IPC : To suffer rigorous imprisonment for one year and fine of Rs. 100/-, in default to further suffer one month simple imprisonment. U/s. 341 IPC : To suffer simple imprisonment for one month and fine of Rs. 50/-, in default to further suffer five days simple imprisonment. Ramavtar, Sardara, Balbir, Rajendra and Ghuda Ram : U/s. 302/149 IPC : Each to suffer life imprisonment and fine of Rs. 1000/-, in default to further suffer one year simple imprisonment. U/s. 148 IPC : Each to suffer rigorous imprisonment for two years and fine of Rs. 100/-, in default to further suffer fifteen days simple imprisonment. U/s. 325/149 IPC : Each to suffer rigorous imprisonment for five years and fine of Rs. 500/-, in default to further suffer six months simple imprisonment. U/s. 324/149 IPC : Each to suffer rigorous imprisonment for two years and fine of Rs. 200/-, in default to further suffer two months simple imprisonment. U/s. 323/149 IPC : Each to suffer rigorous imprisonment for one year and fine of Rs. 100/-, in default to further suffer one month simple imprisonment. U/s. 324/149 IPC : Each to suffer rigorous imprisonment for two years and fine of Rs. 200/-, in default to further suffer two months simple imprisonment. U/s. 323/149 IPC : Each to suffer rigorous imprisonment for one year and fine of Rs. 100/-, in default to further suffer one month simple imprisonment. U/s. 341 IPC : Each to suffer simple imprisonment for one month and fine of Rs. 50/-, in default to further suffer five days simple imprisonment. Substantive sentences were directed to run concurrently. Co-accused Khanga Ram, Prakash, Leela Ram, Dayal Chand and Krishna were however acquitted of the charges under sections 148, 302/149, 307/149, 324/149, 323/149 and 341 IPC. (2). It is prosecution case that a written report (Ex.P-4) was lodged on June 14, 1999 with the Police Station Bansoor by informant Gopi Singh (Pw. 1) to the effect that on the said day around 8.30 p.m. when the informant together with Rajpal (now deceased) were coming back to their house after purchasing some articles, they were belaboured on the way by Kailash, Ramavtar, Balbir, Rajendra, Sardar, Ratti Ram, Ghuda, Dayala and Krishna. Pharsi-blow was inflicted by Kailash on the head of Rajpal, whereas Ghuda gave lathi-blow on the head of Gopi Singh. When Girvar Singh, Laxman Singh, Popraj Singh Billu Singh intervened Sardara gave lathi blow on the hand of Girvar. Ramavtar, Balbir and Popraj caused injuries on the person of Laxman and Ratti Ram. Police Station Bansoor on the basis of said report registered a case under sections 148, 149, 323, 341, 307 and 336 IPC and investigation commenced. During investigation Rajpal succumbed to his injuries and Section 302 IPC came to be added. Statements of witnesses under section 161 Cr.P.C. were recorded, accused were arrested, autopsy on the dead body was performed, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Behror District Alwar. Charges under sections 148, 302, 302/149, 325/149, 324/149, 323/149, 307/149 and 341 IPC were framed. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In due course the case came up for trial before the learned Additional Sessions Judge Behror District Alwar. Charges under sections 148, 302, 302/149, 325/149, 324/149, 323/149, 307/149 and 341 IPC were framed. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under section 313 Cr.P.C. the appellants claimed innocence and stated that the complainant party intervened in the marriage procession of Nandlal and Sita Ram, who could sit on the mare only under the police protection. Complainant party did not like procession of Nand Lal and Sita Ram on the mare and because of this complainant party entered their house and beat them. Cross case therefore was registered against the complainant party. Four witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. the other co-accused were however acquitted. (3). We have heard the rival submissions and scrutinished the record. (4). A look at the material on record reveals that Rajpal died after two days of the incident. Prior to his death the injuries sustained by him were examined and according to injury report (Ex.P-18) following injuries were found on his person:– 1. Incised wound 6 cm x 2 cm x 2 cm at junction of Lt. parietal & Occipital bone. 2. Bruise 2 cm x 1 cm on the back of chest. After the death of Rajpal, autopsy was performed on the dead body and as per postmortem report (Ex.P-60) following antemortem injuries were found:– 1. Abrasion 4 x 2 cm at Rt. cheek. 2. Abrasion 1 x 1 cm at Rt. eye brow with soft scab forth 3. 1 x 1/2 cm at Rt. elbow Skull: Stitches of 6 cm x placed at Lt. fronto parieto temporal region. According to Dr. N.L. Desania (Pw. 21) the cause of death was shock as a result of injury to skull and brain. (5). Other members of the complainant party also sustained injuries. Informant Gopi Singh (Pw. 1) received following injuries vide injury report (Ex.P-4):– 1. Bruise 2 cm x 1 cm at Lt. scapular region. 2. Bruise 6 cm x 2 cm on back of chest of Ltd. side 3. Lacerated wound 1-1/2 cm x 1 cm on head of Rt. parietal bone 4. Swelling below the lt. knee joint. 5. Informant Gopi Singh (Pw. 1) received following injuries vide injury report (Ex.P-4):– 1. Bruise 2 cm x 1 cm at Lt. scapular region. 2. Bruise 6 cm x 2 cm on back of chest of Ltd. side 3. Lacerated wound 1-1/2 cm x 1 cm on head of Rt. parietal bone 4. Swelling below the lt. knee joint. 5. Swelling on nose. Girvar Singh vide injury report (Ex.P-5) received on swelling at lower end of the left humerous. On x-ray no fracture was found. Billu vide injury report (Ex.P-10) received on lacerated wound of 2 cm x 1 cm on the right side of chest. Popraj Singh vide injury report (Ex.P-19) received one swelling at Rt. Lateral side of chest. Vide X-ray report (Ex.P-21) multiple fractures of ribs were found. Laxman Singh vide injury report (Ex.P-20) sustained following injuries:– 1. Linear incised wound 5 cm x 3/4 cm x 1 cm at Rt. Shoulder joint 2. Abrasion 6 cm x 2 cm at Rt. Shoulder joint 3. Lacerated wound 3 cm x 2 cm x 1/2 cm on Fore head. (6). At this juncture it will be appropriate to consider the injuries sustained by accused party. Prabhati vide injury report (Ex.D-9) received following injuries:– 1. Swelling on the back of chest blow the scapular. 2. Bruise on the Fore arm of Rt. hand. 3. Swelling at Lt. hand of the middle of the radius unla. Laxmi vide injury report (Ex.D-10) received following injuries: 1. Lacerated wound 3 cm x 1 cm x 3/4 cm on the fore head. 2. Lacerated wound 2 cm x 1-1/2 cm x 1 cm on the knee joint. Saroj vide injury report (Ex.D-11) received one swelling 2 cm x 1 cm on the head. Jai Singh vide injury report (Ex.D-12) received one lacerated wound 2 cm x 1 cm on head at the junction of Rt. & Ltd. Parietal bone. Accused Sardara vide injury report (Ex.D-13) received following injuries:– 1. Lacerated wound 1-1/2 cm x 1/2 cm at lt. parietal bone. 2. Swelling at back of the lt. hip region. (7). It is contended by learned counsel for the appellants that in fact the incident occurred in the house of co-accused Leela Ram. Prakash Singh (Pw. 12) categorically deposed in his cross- examination that incident occurred in the house Leela Ram. parietal bone. 2. Swelling at back of the lt. hip region. (7). It is contended by learned counsel for the appellants that in fact the incident occurred in the house of co-accused Leela Ram. Prakash Singh (Pw. 12) categorically deposed in his cross- examination that incident occurred in the house Leela Ram. Prakash Singh further stated that Rajpal Singh was initially lying in front of the house of Basant Kumar. Thereafter he was lifted and carried away from that place. Prakash Singh also admitted that doors and windows of the house of Leela Ram and cot lying there were broken and there were many foot marks on the galary. Khurpi, Bakhri and Dantli etc. were also lying there. Even according to site plan (Ex.P-3) the incident occurred at the place, which was in front of the house of co-accused Leela Ram. It is further canvassed by learned counsel for the appellants that as per the statement of Banshidhar SHO (Pw. 17) cross case was registered against the complainant party and accused Prabhati, Laxmi, Saroj, Jai Singh and Sardara Ram sustained injuries. Banshidhar, SHO further stated that complainant party had given beating to the accused and the incident occurred in the galary and chowk. Learned counsel fro the appellants vehemently urged that the only injury attributed to Kailash was caused in exercise of right of private defence since the complainant party inflicted blow on the forehead of his mother Laxmi. (8). Per contra, learned Public Prosecutor supported the impugned judgment and contended that the appellants were rightly convicted and sentenced. (9). Factual situation emerged from the material on record may be summarised thus:– (i) Testimony of Sumer Singh (Dw. 1), Sugan Chand (Dw. 2), Budh Ram (Dw. 3) and Ramavtar (Dw. 4) reveals that marriage procession of Sita Ram and Nand Lal who were the members of Scheduled Caste, was intervened by the complainant party. (ii) Girvar Singh (Pw. 2) in his cross-examination admitted that after the intervention by complainant party in the marriage procession, police protection was provided to the accused party. (iii) As per injury report Ex.P-18 Rajpal (deceased) sustained one incised wound at the junction of left parietal and occipital bone and the said injury was attributed to appellant Kailash. (iv) Members of accused party viz. Prabhati, Laxmi, Saroj, Jai Singh and Sardara Ram sustained injuries and cross case registered against the complainant party. (iii) As per injury report Ex.P-18 Rajpal (deceased) sustained one incised wound at the junction of left parietal and occipital bone and the said injury was attributed to appellant Kailash. (iv) Members of accused party viz. Prabhati, Laxmi, Saroj, Jai Singh and Sardara Ram sustained injuries and cross case registered against the complainant party. (v) Although according to site plan the incident is shown to have occurred on the way but from the testimony of prosecution witnesses, it is revealed that the complainant party entered in the house of Leela Ram and free fight ensued there. (vi) Injuries sustained by the accused were not explained by the prosecution witnesses. (10). In the light of the factual situation of the case, it would be worthwhile to consider the principles governing constructive liability under section 149 IPC. This section requires the consensus of five persons to do an unlawful act prohibited by section 141, in addition to which, in order to create a liability under this section, there must be proof that the accused knew that the offence committed by one member of the assembly was likely to be committed by any of them. Section 149 does not create new offence but deals with vicarious liability of the members of unlawful assembly. In Munir Khan vs. State of U.P. (AIR 1971 SC 355) it was held that where there is a mutual fight between the parties, the Court will not be justified in convicting any of the accused by having recourse to section 149. In a mutual fight there is no common object. It is well settled that where there is a spontaneous fight between the parties or where the right of defence is exceeded, the question of constructive liability under section 149 or 34 IPC does not arise and each individual is responsible for the injuries caused by him. (11). Bearing these parameters in mind when we proceed to consider the facts of the case we find that the appellants had right of private defence. Undeniably the marriage procession of Nand Lal and Sita Ram was intervened by the complainant party and it could be allowed to proceed only when the police provided protection. It was the complainant party which came to the house of Leela Ram and initiated quarrel. Undeniably the marriage procession of Nand Lal and Sita Ram was intervened by the complainant party and it could be allowed to proceed only when the police provided protection. It was the complainant party which came to the house of Leela Ram and initiated quarrel. The complainant party entered the house of Leela Ram and broke open doors and windows and even the cot lying in the house was not spared. Prabhati, Laxmi, Saroj, Jai Singh and appellant Sardara Ram sustained injuries that were not explained by the prosecution witnesses. Fatal injury on the head of Rajpal is attributed to appellant Kailash, who himself did not sustained and injury. The plea of the appellant is that they acted in exercise of right of private defence. (12). It is trite that when the accused has taken the plea that they acted in self defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. It is well known that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The injuries found on the person of the accused being serious in nature assume importance in respect of genesis and manner of occurrence. Having carefully scanned the material on record we are of the opinion that right of private defence was available to the appellants. In the facts as noticed by us even if the right of private defence was available to appellant Kailash he had far exceeded it in dealing the fatal blow on the head of Rajpal. Kailash must therefore be held guilty under second part of section 304 IPC. Since free fight ensued charges under sections 148 and 149 IPC are not established against any of the accused and co accused Ramavtar, Sardara, Balbir, Rajendra and Ghuda Ram could not be held guilty with the aid of said section. (13). For these reasons, we dispose of instant appeal in the following terms:– (i) We allow the appeal of appellants Ramavtar, Sardara, Balbir Rajendra and Ghuda Ram and set aside their conviction under sections 148, 302/149, 325/149, 324/149, 323/149 and 341 IPC. We acquit them of the said charges. They are on bail, they need not surrender and their bail bonds stand discharged. We acquit them of the said charges. They are on bail, they need not surrender and their bail bonds stand discharged. (ii) We partly allow the appeal of appellant Kailash and instead of section 302, we convict him under section 304 Part II IPC. In view of the fact that appellant Kailash has already suffered the sentence for a period of more than six years and two months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however acquit him of the charges under sections 148, 325/149, 324/149, 323/149 and 341 IPC. Appellant Kailash, who is in jail, shall be set at liberty forthwith if not required to be detained in any other case. The impugned judgment of Trial Court stands modified as indicated above.