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2014 DIGILAW 371 (RAJ)

Sultan Ram v. State of Rajasthan

2014-02-04

NARENDRA KUMAR JAIN, RAGHUVENDRA S.RATHORE

body2014
JUDGMENT : - Heard learned counsel for the appellants, learned public prosecutor for the State and the counsel for the complainant. 2. Being aggrieved of the judgment dated 27.01.2005 passed by the learned Additional Sessions Judge (Fast Track) No.1, Jhunjhunu in Sessions Case No.101/2003 (170/2003), the accused appellants have preferred this appeal under section 374(2) Cr.P.C. The learned trial court has convicted and sentenced the accused appellants as under: Sultan Ram "Under Section 302 IPC: Imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment to further undergo R.I. for three months; Under Section 323 IPC: Rigorous imprisonment for one year; Under Section 447 IPC: Rigorous imprisonment for three months; Mooli Devi and Radhey Shyam "Under Section 302/34 IPC: Imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment to further undergo R.I. for three months; Under Section 323 IPC: Rigorous imprisonment for one year; Under Section 447 IPC: Rigorous imprisonment for three months; 3. Instant criminal case was initiated on a parcha bayan of one Ved Prakash which was recorded on 16.06.2003 at Government Hospital, Sikar. As per his statement, the informant and his father are four brothers. The eldest is Sultan who is having 5 sons and 2 daughters; second in number was the father of the informant who was having 6 sons; and the youngest one of them is informant Ved Prakash. The third son is Kajod aged 30 years and fourth son is aged 25 years. All the four brothers (who are sons of Bhudaram) were living separately. Further it was stated by the informant that a stray cow had entered their residence in the night as the elder brother of his father (tau) had left the gate of the joint guwadi opened. When the father of the informant asked his elder brother regarding leaving the gate opened, as a result of which the stray cow had entered into the guwadi and eaten the gwar grass, the elder brother had hurled abuses and changed the scene into scuffle and by giving blow on the head of the father of the informant, who was alone at that time by lathi. Further it was stated that the father of the informant became unconcious on account of the injury sustained by him on the head, eyes and ribs etc. Further it was stated that the father of the informant became unconcious on account of the injury sustained by him on the head, eyes and ribs etc. The informant was working in the agricultural field at the time of incident which was 6.30 to 7.00 a.m. It was also stated that the maarpeet had been done by accused Sultan and two uncles of the informant in the joint guwadi. The house of Sultan was about 200 yards away. The agricultural fields of the parties were having a common gate. As per the parcha bayan, the first blow on the head was caused by the elder brother of the father of the informant and thereafter his four sons, namely; Radhey Shyam, Kailash, Umesh, Rajesh and Mooli Devi wife of Sultan had also come with lathis in their hand and inflicted injuries to him. Thereafter, the informant and his uncle both came running at the place of occurrence and injuries were inflicted to them also. The informant sustained injuries on his head and above the eye and his uncle Kajod sustained injuries on the leg by lathis. Arjun, the uncle of the informant, also sustained injuries on the hand. His younger brother Subhash sustained injuries on his hand. It is also stated that the elder brother of the father of the informant is a person of quarrelling nature. 4. On the basis of aforesaid parcha bayan, a regular first information report came to be registered at police station Udaipurwati for the offences under sections 143, 452, 323 and 504 IPC. Thereafter, the investigation commenced, during the course of which Girdhari Lal died and as such the offence under section 302 IPC was added. During the course of investigation, the police inspected the place of incident, prepared a site plan, inquest proceedings were also drawn, injured persons were medically examined, accused persons were taken into custody and some recoveries were made at their instance, the statements of the prosecution witnesses were recorded etc. etc. On conclusion of the investigation, the police filed challan against the present accused appellants but had also come to the conclusion that the remaining persons, namely; Kailash, Umesh and Rajesh had nothing to do with the incident and, therefore, no charge-sheet was filed against them. 5. etc. On conclusion of the investigation, the police filed challan against the present accused appellants but had also come to the conclusion that the remaining persons, namely; Kailash, Umesh and Rajesh had nothing to do with the incident and, therefore, no charge-sheet was filed against them. 5. The case being one of triable by the court of sessions, the learned Magistrate then committed the case to the court of Sessions Judge, Jhunjhunu who had transferred the same to the learned Additional Sessions Judge (Fast Track) No.1, Jhunjhunu. The learned trial court had proceeded by hearing arguments on charge and then framed charges against the accused for the offences under sections 323, 447 and 302 read with 34 IPC. The accused appellants denied the charges and claimed for trial. The prosecution had, in support of its case, produced 19 witnesses and also got 23 documents exhibited during the course of trial. Thereafter, the statements of the accused persons were recorded under section 313 Cr.P.C. wherein it was pleaded that they have been falsely implicated. However, they had stated that it was the complainant party who were the aggressors and Girdhari and Arjun had sustained injuries while the accused appellants were exercising their right of private defence. It was also stated that no assault took place near Balaji Mandir or on the way. The accused persons did not produce any witness in their defence but had got 17 documents exhibited which included the cross first information report lodged by them and the report in respect of the injuries sustained by them at the hands of the complainant party. On conclusion of the trial, the learned court below convicted and sentenced the accused appellants, as aforementioned, on 27.01.2005. Hence, the present appeal has come before us. 6. Learned counsel for the accused appellants has submitted that the learned trial court has erred in passing the impugned judgment of conviction and sentence against the accused appellants for the offences alleged. According to him, the fact is that no offence was committed by the accused as it was the complainant party who had attacked them with the grievance that the common gate was left open as a result of which the stray cow entered the common guwada and had eaten up gwar grass. He has further stated that the accused party had also sustained number of injuries at the hands of complainant. He has further stated that the accused party had also sustained number of injuries at the hands of complainant. It is emphasised by the counsel for the accused appellants that as a matter of fact the prosecution has not only changed its first version but is also guilty of changing the place of incident. In this regard, he has submitted that a bare perusal of the parcha bayan of Ved Prakash goes to show that on account of annoyance because of a stray cow having entered into the joint guwada and eaten up the gwar grass that the complainant party had opposed the accused persons and exchanged abuses resulting in a scuffle between them. But the prosecution had, during the course of investigation, changed its version by coming with the story that this criminal case is a result of two incidents which had taken place one after another at two different places. The prosecution had further, at the stage of trial, changed the version by bringing the story that accused Mooli Devi and Radhey Shyam had equally participated in the incident whereas prior to that there was no evidence on record, worth the name, that they were present at the place of incident, much less to say their participation in it. Similarly, the counsel for the accused has submitted that a bare reading of the parcha bayan would go to show that the incident had taken place at one place and on a trifle matter of leaving the gate open by accused Sultan for which the accused party hurled abuses and then started beating the members of the complainant party. At the initial stage, there was no version of the prosecution coming forth that any maarpeet had taken place subsequently on the way. This shows that the prosecution is not only guilty of changing the version and the manner in which the incident had taken place but they are also guilty of shifting the place of incident. Learned counsel for the accused appellants has referred to, at length, the statements of the prosecution witnesses including the injured and other eye witnesses to show that there are major contradictions in the version given during the course of investigation, on which they were confronted and had also tried to implicate more persons from the accused side by alleging their active participation. Therefore, learned counsel for the accused appellants has submitted that the appellants deserve to be acquitted of all the charges, as the offences alleged against them have not been proved beyond reasonable doubt. The counsel for the accused appellants has also submitted that even if it is assumed that some quarrel had taken place between the parties on the day of incident, it is not to be lost sight of that both the sides were near relatives (brothers) and it was on a trifle matter that the parties had given beating to each other. It is also an undisputed fact that but for the reason that the stray cow had entered in the guwada as accused had left the gate opened, there would not have been any incident what-so-ever on that day. It is also submitted that the accused persons have sustained number of injuries and in fact if it is to be taken by total number, the same is exceeding to one which has been sustained by complainant party. It is, therefore, prayed that the accused appellants be acquitted of all the charges levelled against them. 7. Learned public prosecutor assisted by the counsel for the complainant has supported the impugned judgment passed by the learned court below and submitted that the prosecution has proved its case beyond reasonable doubt on the basis of the testimonies of the injured witnesses; the eye witnesses, other relevant evidence relating to the medical evidence; and the recovery of weapon at the instance of the accused persons. It has also been submitted that taking into consideration the statements of the prosecution witnesses coupled with the site plan etc., it is clearly established that it was the accused party who had first left the gate of joint guwada opened and thereafter when the same was pointed out to them, they came and gave beating to the members of the complainant party. It has also been submitted that the accused appellants were the aggressors and they had attacked the members of the complainant party and as such they had committed the offence under section 447 IPC. Further it has been submitted by the prosecution that on consideration of over all facts and circumstances of the case, it is revealed that the manner in which the accused appellants had assaulted the members of the complainant party, they had a common intention to commit murder of Girdhari. Further it has been submitted by the prosecution that on consideration of over all facts and circumstances of the case, it is revealed that the manner in which the accused appellants had assaulted the members of the complainant party, they had a common intention to commit murder of Girdhari. In these circumstances and after inviting attention of this court to the findings arrived at by the learned trial court, the learned public prosecutor had submitted that there is no error in the impugned judgment passed by the learned court below and as such the same deserves to be affirmed by this court. 8. We have given our anxious and thoughtful consideration to the submissions made by the counsels for the rival parties and have carefully perused the material on record of the learned trial court. 9. It is an undisputed fact that the accused as well as the complainant party are descendents of one Bhudaram. He had four sons. Accused Sultan is the eldest, then Girdhari, Kajod and one another namely; Arjun. All the sons of Bhudaram were living separately and were having their agricultural fields from which they were earning their livelihood. They were all living peacefully and they did not have any strained relations amongst them at any point of time. It was only on the fateful day that the family of two brothers, namely; Sultan and Girdhari came to scuffle leading to death of the later and several injuries to different members of the families. The incident had also taken place on a trifle matter i.e. to say that the gate of the joint guwada was left open by Sultan as a result of which stray cow had entered and eaten up the gwar grass of the complainant party. There was no quarrel between the parties before this incident and it was in the early morning hours that the members of the complainant party had conveyed their annoyance to the accused Sultan on which he had hurled abuses and maarpeet took place incidently. 10. It would also be relevant to mention here that deceased Girdhari had sustained following injuries: "(i) Two stitched wounds as depicted in figure of size (i) 28 cm semi circular in shape extending from right frontal to parietal region of vault of skull with 26 stitches with diffuse swelling and deformity. 10. It would also be relevant to mention here that deceased Girdhari had sustained following injuries: "(i) Two stitched wounds as depicted in figure of size (i) 28 cm semi circular in shape extending from right frontal to parietal region of vault of skull with 26 stitches with diffuse swelling and deformity. (ii) 6cm long with seven stitches with in the frontal pat and curvature of ____ injury with dried clotted blood and at places soft scab formative. On dissection: There is scalp haemotoma over right frontal parietal and temporal region with a bone gap of 12x8 cm dura found stitched with multiple linear and depressed fractures around it in spider web pattern. (2) Stitched wound: As depicted in figure in size 22.0 cm. semicircular in shape on left parieto occipital region with 25 stitches with diffuse swelling. On dissection: A bone gap of 10x4.0 cm. Consisting of left parietal bone poster, front and occipital bones left side, with dura intact. On further exploration extradural haemotoma is found all over vault region of skull with collection of blood in brain tissue right frontal, parietal and occipital bone found contused differently on supero lateral aspect. Brain is edematous and surrounded with subdural haemotoma. (3) Two parallel injuries of size 12.0 cm each with a gap of 1.5 cm in between with black discolouration placed obliquely on right costal margin reaching up to umbilicus. (4) Abrasion 1.0 x ¾ cm on left ankle laterally with diffuse swelling and bruh hard scratch formation. On dissuction haemotoma in soft tissues. (5) Mark of tracheostomy on suprastail neck 1.5 x1.0 cm with pinkish formation coming through it. Further, though the incident had taken place on 16.6.2003 but the injured Girdhari had succumbed to the injuries and died on 20.6.2003. The other members of the complainant party, who had also sustained injuries, were Ved Prakash, Arjun Lal and Subhash. They had sustained following injuries: Injuries of Ved Prakash (1) After removal of dressing- Lacerated wound 2x1/2x1/4 cm on left side occipito parietal region of scalp- simple, blunt- A black til on left angle of mouth. (2) After removal of dressing- Abrasion 1x1 cm. Size on left side of forehead- simple, blunt (3) After removal of dressing- Abrasion 1x1/2 cm. on right side of forehead- simple, blunt. (4) Abrasion 1x1/2 cm on right side face- below eye, simple blunt. (2) After removal of dressing- Abrasion 1x1 cm. Size on left side of forehead- simple, blunt (3) After removal of dressing- Abrasion 1x1/2 cm. on right side of forehead- simple, blunt. (4) Abrasion 1x1/2 cm on right side face- below eye, simple blunt. (5) Abrasion 3x 2 cm on left distal end of arm, simple-blunt." Injuries of Arjun Lal (1) Bandage present over middle part of scalp. On removal of Bandage (i) Stitched lacerated wound (3 stitches) 5cm x 0.3 cm (greish colour) pus present- left side of scape anterior part of parietal region (near midline)- Blunt. (ii) Abrasion 1.5 cm x 0.4 cm (greenish colour) left waist (inner part)- simple, blunt. (iii) c/o pain base of right Index finger- no external injury seen. Duration of injuries are about between 5 to 7 days." Injuries of Subhash (1) Bruise- 3x1 cm. on right wrist joint- simple, blunt. (2) Bruise 7x2 cm on right scapular region- simple blunt. Duration of injuries about within 1-2 days." On the other hand, accused persons had also sustained number of injuires at the hands of complainant party. It has been categorically stated by the medical jurist Dr. Bhagwan Singh (PW-12) that the injuries of the complainant party as well as accused side had been caused at the same time. The injuries sustained by accused Sultan, Mooli Devi and Radhey Shyam are as follows: Injuries of Sultan Ram (1) Lacerated wound 2½ cmx1/2x1/4 cm on right parietal region of scalp- blunt. (2) Lacerated wound 2x1/2x1/4 cm on left parietal region of scalp- simple, blunt. (3) Abrasion 1/2x1/2 cm – on nose, simple blunt. (4) Bruise with swelling- 4x2½ cm on left forearm-blunt. (5) Bruise 3x3 cm on left elbow – simple, blunt. (6) Bruise with swelling-4x3½ cm- on left lateral side of chest- blunt. (7) Bruise- 8x2½ cm - on left inter scapular region-simple, blunt. (8) Bruise- 8x2 cm- on left chest back side- simple, blunt. (9) Bruise-6x2½ cm – on left scapular region outerside- simple, blunt. (10) Bruise 10x2½ cm – on right side of neck towards right interscapular region- simple, blunt. (11) Abrasion- 3½ x1 cm – on right forearm- simple, blunt. (12) Bruise- 6x3 cm- on left soulder- simple, blunt. (13) Bruise-8x3 cm-on left shoulder-simple, blunt. (14) Swelling- 2½ x 2 cm – on right ring finger towards hand (x-ray advised). (10) Bruise 10x2½ cm – on right side of neck towards right interscapular region- simple, blunt. (11) Abrasion- 3½ x1 cm – on right forearm- simple, blunt. (12) Bruise- 6x3 cm- on left soulder- simple, blunt. (13) Bruise-8x3 cm-on left shoulder-simple, blunt. (14) Swelling- 2½ x 2 cm – on right ring finger towards hand (x-ray advised). Injuries of Mooli Devi (1) Bruise with swelling 5x3cm – on left leg left side- blunt (2) Lacerated wound 1x1/4x1/4 cm – on front side of left leg- simple, blunt. (3) Bruise 3x2 cm-on back side of left thigh-simple, blunt. (4) Bruise 6x3½ cm – on right shoulder- blunt. (5) Swelling 3x2 cm-on right parietal region of scalp- simple, blunt. (6) Bruise 7x2½ cm – on right chest back side – simple, blunt. Injuries of Radhey Shyam (1) Abrasion 1x1/2 cm – on left hand – simple, blunt. (2) Abrasion 2x1 cm – on lower part of left forearm – simple, blunt. (3) Abrasion 3x1 cm – on mid of left forearm – simple, blunt. (4) Abrasion 1x1/2 cm – on left elbow – simple, blunt. (5) Bruise 6x1 cm.- on upper part of left forearm – simple, blunt." 11. From the aforesaid facts, it is more than clear that the incident in the present case had taken place all of a sudden and on a trifle matter. Further, both the parties had come to scuffle as a result of which all of them had sustained injuries which were inflicted by both the parties, to each other. The injuries sustained by the accused party cannot be said to be superfluous but on the contrary their injuries were more in number than the one of the complainant party. Apart from it, the accused party had sustained injuries which were lacerated wounds and also on the vital part of the body, such as head. Accused Sultan alone had sustained injuries which were 14 in number which included a fracture (Ex.D-8). 12. Besides, it is relevant to mention here that a careful perusal of the post-mortem report (Ex.P-23) goes to show that three injuries have been given in the diagram of scalp. However, the medical jurist Dr. Shiv Ratan Kochar (PW-19) has categorically stated before the learned trial court that amongst the said injuries, one injury is the result of a blow of some blunt weapon whereas two other injuries are on account of surgical intravention. However, the medical jurist Dr. Shiv Ratan Kochar (PW-19) has categorically stated before the learned trial court that amongst the said injuries, one injury is the result of a blow of some blunt weapon whereas two other injuries are on account of surgical intravention. Meaning thereby that the fatal injury sustained by deceased Girdhari, at the hands of the accused party, is one on the head by blunt weapon. As per the prosecution case itself, the said injury has been inflicted by accused Sultan. So far as accused Mooli Devi and Radhey Shyam are concerned, as mentioned above, the case of the prosecution, up to submitting of the parcha bayan, was that they had no role to play but at the time of filing of challan their participation has been implicated. Taking into consideration the fact that the accused Mooli Devi and Radhey Shyam have themselves sustained injuries and as the medical jurist has stated, at the same time as that of the members of the complainant party had also sustained, goes to establish their presence at the place of incident. In so far as offence under section 302 read with section 34 IPC is concerned, having regard to the case of the prosecution from the very inception of recording of parcha bayan, during investigation and at the time of trial, there is nothing on record to show that they had any common intention with other accused, namely Sultan, to inflict any severe injury to the deceased, much less to say to commit his murder. The said circumstance also fortifies the fact that the incident had taken place all of a sudden and it was by chance that both the parties exchanged abuses and had come to scuffle. Therefore, it cannot be said that accused Mooli Devi and Radhey Shyam had any common intention to share with the accused Sultan to have commit the offence of murder. Therefore, the question which remains to be considered is as to what office accused Mooli Devi and Radhey Shyam have committed in the present case. Having considered the evidence on record as well as the testimony of the injured and the eye witnesses, the offence committed by them is under section 323 and 447 IPC. Therefore, the question which remains to be considered is as to what office accused Mooli Devi and Radhey Shyam have committed in the present case. Having considered the evidence on record as well as the testimony of the injured and the eye witnesses, the offence committed by them is under section 323 and 447 IPC. As we have already come to the conclusion that from the facts and circumstances of the case as well as evidence on record including the medical evidence and the recoveries effected from him, accused Sultan did not have any intention to commit murder, his case would, at most, travel to the offence under section 304 Part I IPC. 13. For the reasons aforesaid, we are of the considered opinion that after carefully taking into consideration the evidence on record, the prosecution has failed to prove any common intention of the accused. It has not succeeded to prove that the accused sultan, in the facts and circumstances of the case, ever had any intention to commit murder of Girdhari. It can at the most be said that he had the knowledge at the time of incident that the injuries inflicted by him on the head of the deceased would result in his death. So far as other accused persons, namely; Smt. Mooli Devi and Radhey Shyam are concerned, they had neither any common intention to share with accused Sultan for committing the murder of Girdhari nor inflicted any serious injury on the person of the deceased. Therefore, the conviction awarded to them by the learned trial court in respect of section 304 read with section 34 IPC is not sustainable. However, their conviction under section 447 IPC is confirmed. 14. The accused appellant Sultan deserves to be acquitted of the offence under section 302 IPC but the prosecution had succeeded in proving the offence against him under section 304 Part I IPC. In the facts and circumstances of the case, we are of the considered opinion that accused Sultan be awarded sentence for a period of 10 years in respect of the offence committed by him. The accused has already remained in jail for a period of more than 10 years and no further sentence remains to be served by him. He is to be released forthwith. The accused has already remained in jail for a period of more than 10 years and no further sentence remains to be served by him. He is to be released forthwith. So far as accused Mooli Devi and Radhey Shyam are concerned, they are acquitted of offence under section 302 read with section 34 IPC but their conviction under section 323 and 447 IPC, as already awarded by the learned trial court, is maintained. The ends of justice would be served if they are awarded sentence for a period already undergone by them. 15. Consequently, the appeal is partly allowed. The impugned judgment dated 27.01.2005 passed by the Additional Sessions Judge (Fast Track) No.1, Jhunjhunu in Sessions Case No.101/2003 is quashed and set aside to the extent of the modification of conviction and sentence of the accused appellants, as mentioned above. Accused Sultan is in jail and he shall be released forthwith, if not required in any other case. Accused Smt. Mooli Devi wife of Sultan Ram and Radhey Shyam son of Sultan are on bail and they need not surrender. Their bail bonds stand discharged.