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2014 DIGILAW 354 (RAJ)

MANSUKHA v. STATE OF RAJASTHAN

2014-02-03

NARENDRA KUMAR JAIN, RAGHUVENDRA S.RATHORE

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JUDGMENT : - Learned Trial Court had on conclusion of the trial in Sessions Case No. 29/2001, of the accused Mansukha; Manohari alias Manohar; Harish alias Dablya; Hari Ram; Smt. Anokhi; Smt. Sita; Smt. Tulsi and Smt. Beena, vide order dated 14.11.2002 convicted them for the offences under Sections 148, 302/149, 307/149 and 323 IPC and each one of them were sentenced under Section 148 IPC to three years simple imprisonment; under Section 323 IPC to one year's simple imprisonment; under Section 307 read with Section 149 IPC to ten years simple imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo one month's simple imprisonment; and under Section 302 read with Section 149 IPC to life imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo one month's simple imprisonment. 2. Learned Trial Court vide another judgment and order dated 09.04.2004 convicted the accused Narsi for the offences under Sections 148, 302 and 307 IPC and sentenced him under Section 148 IPC to three years simple imprisonment; under Section 307 IPC to ten years simple imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo one month's simple imprisonment; and under Section 302 IPC to life imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo one month's simple imprisonment. Accused Narsi has been acquitted from the charges under Sections 324 and 323/149 IPC. 3. In respect of the incident which had taken place in the present case, a report was lodged by one Vijay Singh at Police Station Manpur, District Dausa on 21st September, 2000. It was mentioned in the report that on the same day, at about 6.30 A.M., when they were harvesting their crops of Bajra, Chola and Gwar, Mansukha, Narsi, Hariram, Harish @ Bharthari; Manohari, Anokhi wife of Narsi, Sita wife of Manohari, Tulsi wife of Hariram and Beena wife of Harish had all of sudden come armed with Lathies, Barchi, Dhariya and stones. It was further mentioned that the accused Narsi was having a gun with him. Thereafter, the women folk of the accused party started pelting stones. The other accused persons, having sharp edged weapons and lathies, caused injuries to the members of the complainant party. It was further mentioned that the accused Narsi was having a gun with him. Thereafter, the women folk of the accused party started pelting stones. The other accused persons, having sharp edged weapons and lathies, caused injuries to the members of the complainant party. After hearing the hue and cry, Kishan and Suresh came at the seen of occurrence and Suresh was seriously injured. Similarly, Vijay Singh, Madan, Rajneesh and Smt. Badami had also sustained injuries. It was also mentioned in the report that Anokhi wife of Hariram was supplying cartridges to the accused Narsi. Further, it was mentioned in the report that Mitthan and Malkhan died on the spot due to firearm injuries. On the aforesaid report, a regular First Information Report (375/2000) (Exhibit P-45) was registered at Police Station Manpur, District Dausa for the offences under Sections 147, 148, 149, 336, 302, 307 and 323 IPC. 4. Thereafter, the usual investigation commenced and on conclusion of the same, charge sheet was filed against all the accused persons, except Narsi. On filing of the said charge sheet before the Magistrate, the case was then committed to the Court of Sessions and thereafter it was transferred to the learned Trial Court. Trial commenced with the framing of charges against the accused persons which had been denied by them. The prosecution had, in support of its case, produced 21 witnesses in the trial and exhibited 46 documents. Thereafter, the statements of the accused-persons under Section 313 Cr.P.C. were recorded by the learned Trial Court. On conclusion of the trial, the accused-appellants namely Mansukha; Manohari alias Manohar; Harish alias Dablya; Hari Ram; Smt. Anokhi; Smt. Sita; Smt. Tulsi and Smt. Beena were convicted and sentenced by the learned Trial Court, vide its judgment and order dated 14.11.2002, as aforementioned. 5. Learned counsel for the accused-appellants, in the appeal preferred by the accused Mansukha and others, has submitted that the learned Trial Court has grossly erred in passing the impugned judgment of conviction and sentence against the accused-appellants, whereas the prosecution has totally failed to prove its case beyond reasonable doubt. Further, he has submitted that the conviction has been awarded to the accused-appellants (8 in numbers) with the aid of Section 149 IPC, whereas there is no evidence worth the name to attract the said offence. Further, he has submitted that the conviction has been awarded to the accused-appellants (8 in numbers) with the aid of Section 149 IPC, whereas there is no evidence worth the name to attract the said offence. It has been submitted that the accused-appellants had never pre-planed or premeditated commission of the offence, so as to form a unlawful assembly. Learned counsel has also submitted that on perusal of the evidence on record, it is revealed that the prosecution case is falsified, on the face of it, for the reason that allegations have been levelled against eight persons possessing various arms, but the injuries suffered by the members of the complainant party is negligible. If they had been really attacked by the accused party, then the damage to be caused on them would certainly had been much more. Learned counsel for the accused-appellants Mansukha and others has further submitted that as a matter of fact the complainant has falsely roped in all the family members of Mansukha, that is to say, all his sons and their wives. In all, nine persons of the same family have been implicated by the prosecution. Therefore, it has been submitted by the counsel for the accused-appellants Mansukha and others that the impugned judgment and order dated 14.11.2002 passed by the learned Trial Court deserves to be quashed and set aside and the accused-appellants be acquitted of all the charges levelled against them. 6. Learned Public Prosecutor, on the other hand, supported the impugned judgment passed by the Trial Court after referring to and pointing out the evidence, on the basis of which the prosecution had proved its case beyond reasonable doubt. Apart from it, he has invited our attention to the statements of Punia, owner of the land in question and other prosecution witnesses. He has also referred to the statements of the accused given under Section 313 Cr.P.C. and medical evidence on record to show that it was the accused-persons alone who were the aggressors and gave severe beatings to the complainant party, resulting in death of two persons and injuries to others. Learned Public Prosecutor has also invited our attention to the site plan and material documents collected during the course of investigation. 7. Learned Public Prosecutor has also invited our attention to the site plan and material documents collected during the course of investigation. 7. Learned Public Prosecutor has emphasised on the fact that from the evidence on record it is revealed that accused-party had earlier retained possession of the land in question from its owner by force but subsequently with the help of Tehsildar concerned the possession was handed over to the khatedar, who had thereafter given the land for cultivation to Malkhan on the term of sharing of the yield. He has also submitted that it was the accused who tried to take revenge and to get back the possession of the land by force at the time when the crop was ripe for harvesting. Therefore, the learned Public Prosecutor has submitted that learned Trial Court has taken into consideration all aspects of the matter including the fact that the injuries, sustained by the complainant party, were duly explained by the prosecution witnesses. The finding arrived at by the learned Trial Court is based on the evidence produced by the prosecution and the same does not suffer from any infirmity whatsoever. Learned Public Prosecutor has submitted that the appeal filed by the accused-appellants deserves to be dismissed and the impugned judgment and order passed by the learned Trial Court be affirmed. 8. The over all facts and circumstances of this case reveals that the accused appellants were in their agricultural field, when the incident took place and were harvesting the crops. All of a sudden, the members of the complainant party had come and picked up the quarrel with the accused persons. They started throwing stones. Lateron stones were pelted from both the sides. As per the prosecution case, it was the accused Narsi who opened fire as a result of which Mitthan Lal and Malkhan were done to death. So far as the present accused persons are concerned, there is no dispute about the fact that they had not caused any injury to the deceased persons. There is no iota of evidence on record from which it is reflected that the accused appellants had made any preparation or planning or there was any meeting of mind between them. So far as the present accused persons are concerned, there is no dispute about the fact that they had not caused any injury to the deceased persons. There is no iota of evidence on record from which it is reflected that the accused appellants had made any preparation or planning or there was any meeting of mind between them. Apart from the fact that the incident took place all of a sudden, there is nothing on record to show that the accused appellants had any common object to commit the murder of Mitthan Lal and Malkhan. Therefore, the circumstances of this case goes to show that the appellants had no intention to commit murder. In such a situation, the learned trial court had committed serious error in convicting the accused appellants for having formed an unlawful assembly with the object to commit murder of Mitthan Lal and Malkhan. In other words, the conviction awarded to the accused appellants with the aid of Section 149 IPC is not sustainable in law. 9. After taking into consideration the persons who have been implicated in the instant case, the picture emerges that the entire family has been ropped in, starting from the eldest in the family Mansukha; all male members and also the women folk. The accused appellant Mansukha son of Raghunath is the head of the family. He had four sons, namely; Manohari @ Manohar, Harish @ Dablya, Hari Ram and Narsi and all of them had been made accused in the present case. Besides, Smt. Seeta wife of Manohari @ Manohar, Smt. Beena wife of Hariram, Smt. Tulsi wife of Hariram and Smt. Anokhi wife of Narsi were also made accused by the complainant party. Accused Smt. Seeta wife of Manohari was having a male child, aged one year and Smt. Anokhi wife of Narsi was having a female child, aged 1½ years, in their laps. More over, the accused persons have sustained injuries. The instant case is clearly a one of over implication where the entire family of the accused party including women folk have been falsely made accused in by the complainant. 10. Further, the prosecution case is that the accused appellants were carrying sharp edged weapons. A bare look to the medical evidence on record goes to show that no sharp edged weapon injury was sustained by deceased persons. 10. Further, the prosecution case is that the accused appellants were carrying sharp edged weapons. A bare look to the medical evidence on record goes to show that no sharp edged weapon injury was sustained by deceased persons. The prosecution witnesses had rather made statement which was contrary to the medical evidence on record and thus false. Such statements certainly creates doubt and no reliance can be placed on them. The accused party had also lodged a cross case. 11. Another important aspect of the case which has been over looked by the learned trial court is that the land in question was in cultivatory possession of the accused persons. According to the prosecution witnesses themselves, the disputed field was with the accused. Poonia (PW-12) had categorically stated that the land in question had been grabbed by Narsi, since a long time. Many a times request had been made to return the possession but Narsi had not done so. He has further stated that, therefore, he gave the agricultural field on 'batai' to Malkhan. It is pertinent to note here that according to Poonia himself, he was not in possession of the land even then he gave the same to Malkhan on 'batai'. From the said statement, it is established that while the land was in possession of the accused appellants, the prosecution witness Poonia wanted Malkhan to cultivate the same so as to dispossess the accused appellants. It is not the case of the complainant party that the crop which was standing on the agricultural land at the time of incident, was sown by them. On the contrary the prosecution witness Poonia has stated that the crops standing on the field were belonging to the accused party. In such circumstances, the accused party definitely had a right to harvest the crop and it was at that time that the complainant party tried to interfere by going to the spot and picking up the quarrel. It is to be noted that accused Mansukha had sustained a fire arm injury which goes to show that the complainant party were also fully armed. In these circumstances, it is more than clear that the agricultural field was in possession of the accused appellants; they had sown the crop and were present there on the date of incident for harvesting the same. In these circumstances, it is more than clear that the agricultural field was in possession of the accused appellants; they had sown the crop and were present there on the date of incident for harvesting the same. It was the complainant party who wanted to take possession of the land with force by harvesting the crop which was sown by the accused persons. 12. From the aforesaid, it is amply clear that the accused party had been in cultivatory possession of the land in question. They had sown the crop and the same was being harvested by them on the day of incident. It was the complainant party who had come to the place of incident where the accused persons were already present. The complainant party had then picked up the quarrel and started pelting stones so as to forcefully dispossess the accused from the field. The entire family of Mansukha has been ropped in and false allegations of carrying various weapons and alleging that the injuries were inflicted on the members of the complainant party are belied because no injury was caused by sharp edged weapon and the total number of injuries sustained by the members of the complainant party are less, in view the allegation levelled by the prosecution that all the nine persons had attacked with various weapons. The incident took place all of a sudden and it was the members of the complainant party who had come to the agricultural field where the accused persons were harvesting the crop. Even if any scuffle took place between them, it cannot be said that there was any pre-meditation or pre-planning on the part of the accused persons and that they had any common intention. The very fact that the accused persons arrived at the agricultural field prior to the complainant party and they were harvesting the crop which was sown by them goes to show that it was the complainant party who were the aggressors. Therefore, the prosecution case that the accused appellants had formed an unlawful assembly and in furtherance of that common object they had participated in the incident is doubtful. Therefore, the prosecution case that the accused appellants had formed an unlawful assembly and in furtherance of that common object they had participated in the incident is doubtful. As a matter of fact, from the medical evidence on record, the case of the prosecution is rather falsified because the allegation was that the members of the accused party were carrying various sharp edged weapons but none of the injuries sustained by the members of the complainant party is an out-come of using the said weapon. In such circumstances, the benefit of doubt certainly deserves to be given to the accused appellants. 13. Consequently, the appeal (No.1549/2002) is allowed. The judgment and order dted 14.11.2002 passed by the Additional Sessions Judge (Fast Track), Bandikui in Sessions Case No.29/2001 qua the accused appellants (1) Mansukha son of Raghunath; (2) Manohari @ Manohar son of Mansukha; (3) Harish @ Dablya son of Mansukha; (4) Hari Ram son fo Mansukha; (5) Anokhi wife of Narsi; (6) Sita wife of Manohar; (7) Tulsi wife of Hari Ram and (8) Beena wife of Harish is quashed and set aside and the accused appellants are acquitted of all the charges levelled against them. The accused appellants are on bail. They need not surrender and their bail bonds are discharged.