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2014 DIGILAW 787 (RAJ)

Bhanwaria v. State of Rajasthan

2014-03-26

MAHENDRA MAHESHWARI

body2014
JUDGMENT : - Hon'ble MAHESHWARI, J.—The instant criminal appeal has been preferred by the accused-appellant Bhanwaria being aggrieved by the judgment and order dated 17.8.1988 passed by learned District and Sessions Judge, Pratapgarh (“the trial court”) in Sessions Case No. 9/1985-State vs. Nanuram & Ors., in which the learned trial court has convicted the accused-appellant for the offence under Section 307 IPC and has sentenced him to undergo 4 years' rigorous imprisonment. 2. Brief facts of the incident are that on an oral information Ex. P-1 received from the Medical Officer, Bhadesar on 18.10.1984 at Police Station, Bhadesar to the effect that an injured person, who has been assaulted, is brought to the hospital for treatment, the concerned ASI along with squad reached to the hospital immediately and found that injured person Badri was being provided treatment in an unconscious condition and other injured person namely Jassa who was also assaulted, was standing nearby Badri. On being inquired, injured Jassa told that he along with Badri were going to well from home on a Bullock-Cart which was being driven by him (Jassa) and Badri was sitting behind therein. On the way, Nanuram, present accused-appellant Bhanwaria and Uda, all these three persons, stopped the Bullock-Cart and started beating him (Jassa) and Badri by Khuntli which was put out from the Cart. Nanuram and Bhanwaria gave one blow of Khuntli each to Badri, thereby, he became unconscious and fell in the Cart and Nanuram hit Jassa on his knee. On the spot, one Bijal and Baksu intervened and rescued them and thereafter Badri was brought in the hospital in an unconscious condition. It was also informed that the assault took place on account of the ongoing vengeance regarding the use of common Beed between Jassa and the accused persons. While narrating these facts, on 18.10.1984, an oral information report Ex.P-1 was recorded, whereupon, an First Information Report No. 154/1984 for the offences under Sections 341, 323, 307/34 IPC was registered at Police Station, Bhadesar and the investigation commenced. The injured Badri died during the investigation, therefore, the offence under Section 302 IPC was converted instead of 307 IPC. After completion of investigation, the police filed the charge sheet for the offences under Section 302, 341, 323/34 IPC against the accused persons Nanuram, Bhanwaria and Uda before the Magistrate Court, from where, the matter was committed to the Court of Sessions. (trial court). After completion of investigation, the police filed the charge sheet for the offences under Section 302, 341, 323/34 IPC against the accused persons Nanuram, Bhanwaria and Uda before the Magistrate Court, from where, the matter was committed to the Court of Sessions. (trial court). 3. The learned trial court after hearing the arguments on charge and going into the challan papers, framed the charges against the appellant with other co-accused persons for the offences under Sections 302/34, 323/34 and 341 IPC, which were read over and explained to them. The accused persons denied the charges and claimed trial. In support of the prosecution case, total 14 witnesses were produced and examined in the trial court. In the light of the evidence produced by the prosecution and recorded by the trial court, the accused persons were examined under Section 313 Cr.P.C., in which, they stated that the testimony of the prosecution witnesses is false and they have been falsely implicated in the case. In defence, the accused persons want to produce the defence evidence, but nobody appeared on behalf of the accused persons and thus the defence evidence was closed. 4. The learned trial court, after hearing both the parties for final arguments, passed the judgment and order impugned and acquitted the accused Udiya from all the charges and also while acquitting the accused-appellant Bhanwaria and Nanuram from the offences u/Secs. 302/34, 323/34 and Sec. 341 IPC, convicted the appellant Bhanwaria for the offence under Sec. 307 IPC and accused Nanuram for the offences under Sections 307 and 323 IPC and sentenced both the accused Bhanwaria and Nanuram to undergo 4 years' rigorous imprisonment under Section 307 IPC, and under Section 323 IPC, the accused Nanuram has been sentenced to undergo 3 months' rigorous imprisonment. Hence this appeal has been preferred by the accused-appellant Bhanwaria before this Court challenging the judgment and order passed by the learned trial court for convicting and sentencing him as aforesaid. 5. On 5.1.1989, accused-appellant filed an affidavit disclosing the fact regarding the death of his father co-accused Nanuram in Jail. 6. Heard learned counsel for the parties, carefully gone through the impugned judgment and order as well as the record of the case. 7. 5. On 5.1.1989, accused-appellant filed an affidavit disclosing the fact regarding the death of his father co-accused Nanuram in Jail. 6. Heard learned counsel for the parties, carefully gone through the impugned judgment and order as well as the record of the case. 7. The submission made by learned counsel appearing for the accused-appellant is that the learned trial court has committed serious error in misreading the medical evidence both oral as well as documentary resulting in passing of the impugned judgment. It is submitted that as per the oral testimony of the doctor, only one injury was found on the out side skull of the deceased and according to the post-mortem report, on account of that single injury the deceased died, and in the injury report, no other injury was shown to be found on the skull of the deceased. Hence, according to learned counsel, despite there being only one injury on the skull of the deceased, the learned trial court has seriously erred in convicting the accused-appellant for the offence under Section 307 IPC for causing the death of deceased while considering the only one fracture sustained by the deceased to be caused by different injuries by both the accused which is not justified. Learned counsel also argued that the learned trial court was also not justified in discarding the fact that the place where the assault alleged to have taken place was not a thoroughfare, but land was in the possession and ownership of the appellant-accused and the complainant side with an intention to trespass and occupy the land, tried to make a trespass resulting into happening of the incident. It was also argued that as per the prosecution story, three persons were involved in the beating and assaulted by khuntli, whereas, the learned trial court came to the conclusion that no case is made out as against the co-accused Uda, and thus, according to learned counsel, the complainant side with a view to falsely entangle the appellant and his whole family in the crime, included the name of the present appellant also in the episode. Lastly, it was the contention of the learned counsel that there was no evidence available on record to show that the deceased certainly died due to the injury inflicted by the appellant only and therefore, the judgment and order impugned convicting and sentencing the appellant for the offence under Section 307 IPC deserves to be quashed and set aside. On the basis of the aforesaid submissions, learned counsel for the appellant prayed that while allowing the appeal, the appellant may be acquitted from the offence charged and convicted by the trial court. 8. On the other hand, learned Public Prosecutor vehemently opposing the arguments, submitted that the conclusion arrived at by the learned trial court holding the appellant guilty of committing the offence punishable under Section 307 IPC is based on proper and sound appreciation of the evidence which were available on the record. 9. Learned Public Prosecutor also submitted that according to the documentary and oral evidence available on record, fractures were found on and in the different parts of the skull, and it has come on record in the testimony of the oral as well as eye witnesses that the accused-appellant was involved in committing of the said act of beating and causing the head injury and therefore, the appellant has rightly been convicted for the offence punishable under Section 307 IPC for causing the injury in the head of the deceased and prayed for dismissal of this appeal. 10. I have gone through the entire record of the case and have given thoughtful consideration to the rival submissions made and the arguments advanced by the learned counsel appearing for the parties and also carefully gone through the oral as well as documentary evidence available on the record. 11. 10. I have gone through the entire record of the case and have given thoughtful consideration to the rival submissions made and the arguments advanced by the learned counsel appearing for the parties and also carefully gone through the oral as well as documentary evidence available on the record. 11. In the light of the arguments advanced and the submissions made on behalf of the parties during hearing of the appeal, the following points arise for consideration before this Court for deciding this appeal :- (1) Whether, at the time of happening of the incident, the accused-appellant was not present on the spot or even if he was present on the spot, according to the medical as well as oral testimony, it is not established that the accusedappellant inflicted the injury on the vital part of the body of the deceased Badri i.e. Skull, and the learned trial court has delivered its judgment while misinterpreting the medical evidence in the light of ocular evidence available on record? (2) Whether, the alleged incident took place in exercise of right to defence thereby the accused-appellant could not be held guilty? 12. At the first instance, it is considered appropriate to ponder upon the point No.1 framed as above. The basic foundation of the arguments advanced by the learned counsel for the appellant regarding the appellant's being not involved in the incident and not responsible for its causing, was on the logic, firstly, that the trial court did not find any case to be made out as against co-accused Uda and he has been acquitted by the trial court, and secondly, there was only one viable injury found on the skull of the deceased which was assigned to the accused Nanuram, and accordingly, the conviction as against the accused-appellant Bhanwaria has been challenged. 13. In the instant case, the learned trial court, while interpreting the Clause (2) and (3) of Section 300 IPC, did not consider the accused-appellant and the co-accused Nanuram to be guilty of committing offence under Section 302 or 304 r/w Section 34 IPC and convicted them for the offence under Section 307 IPC. 13. In the instant case, the learned trial court, while interpreting the Clause (2) and (3) of Section 300 IPC, did not consider the accused-appellant and the co-accused Nanuram to be guilty of committing offence under Section 302 or 304 r/w Section 34 IPC and convicted them for the offence under Section 307 IPC. Admittedly in the first information report, no overt-act was assigned to the co-accused Uda and as per the accusation levelled against him also, no injury was found on the back of the deceased, and PW-1 Jassa, in his testimony, stated that accused-appellant Bhanwaria assaulted the witness Jassa by hands and pulled him down on the Bullock-Cart, but did not depose anything about specific act of beating by co-accused Uda. Accordingly, since it was not established on record that the co-accused Uda inflicted any injury to injured Jassa and the accusation leveled against him was not found proved and supported by prosecution evidence, the learned trial court acquitted the co-accused Uda from all offences charged. In the considered opinion of this Court, if the learned trial court did not find the accusation leveled to be proved as against the coaccused Uda from the evidence adduced by the prosecution before the trial court, in that situation, the evidence which has come on record against the accused-appellant cannot be ignored on the same reasoning recorded vide the judgment impugned while acquitting the co-accused Uda. It is required to be seen that, whether the learned trial court on proper and sound evaluation of the evidence available on record found ample oral, documentary and medical evidence on record or not distinguishing the case of the accused-appellant as against the case of co-accused Uda, denoting the presence of the appellant on the spot, his involvement in the crime and causing injures on the person of the deceased. 14. As per the prosecution story, on 18.10.1984, on an information received from the Medical Officer, Bhadesar, the concerned ASI of Police Station-Bhadesar namely Yusuf Mohammad along with police team, reached to the hospital and found that the victim Badri was being treated and injured eyewitness Jassa was also present there. The injured Jassa stated thathe and victim Badri both were going to well in the Bullock-Cart which was being driven by Jassa and Badri was sitting behind in the Bullock-Cart. The injured Jassa stated thathe and victim Badri both were going to well in the Bullock-Cart which was being driven by Jassa and Badri was sitting behind in the Bullock-Cart. On the way, Nanuram, Bhanwaria and Uda stopped them and started beating Jassa and Badri by Khuntli which was taken out of the Cart. The accused Nanuram and accused-appellant Bhanwaria gave one blow of khuntli each on the skull of the Badri, thereby, Badri became unconscious and fell down in the Cart. On the spot, one Bijal and Bakshu intervened and rescued them. The cause of the incursion was stated to be revenge developed due to use of a joint Beed. 15. It is true that in the said oral information Ex.P-1, accused Uda was stated to be present on the spot, but from the prosecution evidence, no act in the said beating was assigned and proved against him, however, so far as the present appellant Bhanwaria and accused Nanuram are concerned, it has been specifically stated that both Bhanwaria and Nanuram inflicted one khuntli blow each on the head of deceased Badri. In this regard, the eye witness Jassa has been examined before the trial court as PW-1, whose deposition at verbatim in Hindi reads as under: ^^vkt ls nks lky igys dh ckr gS eSaus esjs [ksr esa eDdh dh Qly cksbZ Fkh o pkjk Hkh FkkA fnu ds 11 cts dh ckr gS eSa o cnjh xkM+h ysdj dqosa ij tk jgs FksA dqosa ij ls vksxk yksu ds fy;s eSa o cnjh xkM+h ysdj tk jgs FksA vkxs ukuwjke eqyfte mldk yM+dk Hkojh;k o mnk rhuksa eDdh ds vksxs xkM+h esa Hkj jgs FksA eSa o cnjh [kkyh xkM+h ysdj tk jgs FksA ukuwjke us eq>s dgk fd xkM+h okil ys tk ugha rks tku ls [kRe dj nwaxkA ukuwjke us ;g Hkh dgk Fkk fd eSa xkM+h esjs jkLrs ls ugha fudyus nwaxkA tcfd ;g jkLrk 'kkfey gSA fQj ukuwjke us cnjh ds flj esa cSyxkM+h dh [kqVyh dh ekjhA cnjh ds flj esa pksV yxus ls mlds flj ls [kwu fudys o og uhps fxj x;kA Hkaofj;k us Hkh [kqaVyh dh cnjh ds flj esa ekjhA** 16. PW-2 Bijal, whose presence is also shown on the spot, has stated in his deposition before the trial court that accused Nanuram gave a Khuntli blow on the head of Badri which resulted in oozing out of the blood from his head, at that time, Badri was in the Cart. Accused Bhanwaria also gave a khuntli blow on the skull of the Badri. Accused Nanuram inflicted injury by khuntli in the back and knee of Jassa, whereupon, he came there. This witness has also deposed that the accused did not want to allow Jassa to take his Cart from that way. 17. Other witness PW-3 Bakshu has deposed in his examination before the Court that Badri and Jassa both came in the Bullock-cart and were going towards the Well. All the three accused persons were loading maize in the vehicle. Nanuram gave a khuntli blow on the head of Badri, accused Bhanwaria inflicted khuntli blow on the head of the Badri resulting into blood coming out from the Badri's head and he fell down. 18. The aforesaid prosecution witnesses whose statements were recorded before the learned trial court, were put to elaborate cross-examination on behalf of the accused persons, however, nothing could be elicited in their cross-examination which may render the presence and act of the accused persons on the spot doubtful. Both the witnesses PW-2 and PW-3 in their statements, have supported the testimony of the witness PW-1 Jassa and his presence on the spot and have deposed that the present accused-appellant Bhanwaria and other accused Nanuram both were present and inflicted khuntli blow on the head of the deceased Badri. In this view of the matter, the case of the present accused-appellant could not be considered at par with that of the accused Uda who has been acquitted by the trial court. 19. On the question of the credibility of the testimony of the eye witnesses regarding the injuries caused, the learned trial court has also considered the oral testimony of the witnesses examined before it in support of the medical evidence produced i.e. PW-6 Dr. R.D. Bhatt and PW-14 Dr. Umesh Chandra Singhvi who conducted the autopsy of the deceased Badri and examined the injuries. 20. PW-6 Dr. R.D. Bhatt, in his oral testimony, has referred the internal injuries found during postmortem of the deceased Badri and PW-14 Dr. R.D. Bhatt and PW-14 Dr. Umesh Chandra Singhvi who conducted the autopsy of the deceased Badri and examined the injuries. 20. PW-6 Dr. R.D. Bhatt, in his oral testimony, has referred the internal injuries found during postmortem of the deceased Badri and PW-14 Dr. Umesh Chandra Singhvi has referred the injuries found during external examination of the body. As per the statement of the witness PW-14 Dr. Umesh Chandra Singhvi, on external examination of the deceased Badri, the following injuries were found. His statement at verbatim in Hindi reads as under : ^^dqpyk gqvk ?kko flj ij Fkk tks <kbZ bZap bUVw 1@2 bap ely Mhi Fkk ;g flj ij ihNs dh rjQ ?kko FkkA mlds ?kko ls rktk [kwu vk jgk FkkA tkfgjk [kksiM+s dk yhuh;j ÝsDpj fn[krk FkkA mlds flj dh gìh Hkh fn[k jgh FkhA** 21. The aforesaid injuries according to the testimony of the doctor himself and examination of the body of deceased by him were revealed externally, however, in the said external examination of the body, the linear fracture of the skull was obviously found. It is to be noticed here that if the prosecution would have produced only the witness PW-14 Dr. Umesh Chandra Singhvi alone in support of medical evidence and would not have produced the doctor PW-6 who conducted the autopsy of the deceased and prepared the internal examination report of the body, in that situation, the contention and arguments placed by learned counsel for the appellant that only one injury was found on the skull of the deceased which according to the testimony of the eye witnesses was assigned to the accused Nanuram only and the accused-appellant Bhanwaria could not be held guilty, may deserve acceptance. However, the prosecution has produced PW-6 Dr. However, the prosecution has produced PW-6 Dr. R.D. Bhatt, who in his statement deposed that upon conducting the autopsy of the deceased he found the following injuries on the person of the deceased, which at verbatim in Hindi reads as under : ^^1- dqpyk gqvk ?kko % ftlds Åij Vkads yxs gq, Fks % 3 bap bUVw 1 bap bUVw 1@2 bap bl ?kko ij [kwu tek gqvk Fkk o ?kko ds uhps vksDlhihVy cksu fn[kkbZ ns jgh Fkh ftldk ÝsDpj gks jgk FkkA 2- jxM+ % 3 bap bUVw 5 bap] nk;h dksguh ds ihNs dh rjQA ;s nksuksa pksVsa e`R;q ds iwoZ dh FkhaA ;g pksVsa iksLVekVZe ds le; ls 24 ?k.Vs ds Hkhrj dh FkhA blds flj ds ijh{k.k ij flj dh peM+h ds uhps vksDlhihVy fjtu esa nkbZa vksj [kwu tek gqvk Fkk bldh lkbZt 8 bap bUVw 6 bap bUVw 8 bap bUVw 9 bap FkhA nkbZa vksj vksDlhihVy cksu dk ÝsDpj Fkk tks f=dks.k dh 'kDr esa gksdj 3 bap bUVw 3 bap bUVw 2 bap dh lkbZt dk FkkA ckbZa vksj gsM ÝsDpj ns[kk o VsEijy cksu dh ihV~l ikVZ rd pksV Fkh o nkbZa vksj dku ls 3 bap Åij dh vksj igqaph gqbZ FkhA vksDlhihVy fjtu esa ckbZa vksj 4 bap bUVw 2 bap 1 bap dk lc M~;wjy CyM dksM Fkk A tks efLr"d ds Åij ncko gksus ls gqvk FkkA ;g pksV Hkh ejus ls iwoZ dh FkhA** 22. From the injuries found during post-mortem of the deceased, it reveals that blood clotting was found in the right occipital region of the skull, in the right side fracture of the occipital bone was found in triangular shape, along with that, left side head fracture was stated to be starting on the temporal bone and was found up to three inches above the ear. Meaning thereby, more than one fracture below the occipital region and in the left side of the skull of the deceased were found. In such a situation, the testimony of the eye witnesses injured Jassa and two other witnesses finds fully corroborated from the medical evidence regarding the fact that the accused-appellant assaulted the deceased Badri and inflicted khuntli blow on the head of the deceased. In such a situation, the testimony of the eye witnesses injured Jassa and two other witnesses finds fully corroborated from the medical evidence regarding the fact that the accused-appellant assaulted the deceased Badri and inflicted khuntli blow on the head of the deceased. The responsibility of the accused-appellant in view of the offence charged could not have been determined merely on the basis of the testimony of the doctor alone who prepared the injury report earlier on external examination of the dead body, and the testimony of the doctor who prepared the postmortem report was also required to be considered. The learned trial court while meticulously discussing the entire testimony of the doctor who prepared the post-mortem report, as also keeping in view the statements of the eye witnesses in this regard and the peculiar circumstances with other factors of the case covered under Sec. 307 IPC, held the accused-appellant liable for inflicting head injury to the deceased which according to the opinion of the doctor was the cause of death of the deceased. 23. In view of the above discussion, in the considered opinion of this Court, the judgment passed by the learned trial court convicting and sentencing the appellant for the offence under Section 307 IPC for causing the head injury to the deceased, is perfectly justified in view of the first information report, testimony of the eye-witnesses and the medical evidence produced on record. The point No.1 stands decided accordingly. 24. Coming to the point No.2, it has been submitted by the learned counsel appearing on behalf of the accused-appellant that the place of incident/land in question was owned and in possession of the appellant and the deceased as well as complainant Jassa made a trespass over that land. 25. In this regard, there is no any type of oral and documentary evidence available on the record to show that the land in question was in the ownership of the accused persons and they were in possession thereof, if it is assumed that the said land was going to be trespassed, then in that situation also, it is not borne out from the record that the state of affairs became so worst that the need arose to exercise the right to defence looking to the eminent danger and the accused-appellant had acquired the right to cause death of the victim Badri. Admittedly, in support of such stand taken on behalf of the accused-appellant, no suggestion was put to the prosecution witnesses in their cross-examination, even though accused persons neither taken any plea in the statements recorded under section 313 Cr.P.C. nor produced any evidence in this regard. In this view of the matter the arguments raised on behalf of the accused-appellant regarding happening of the incident while exercising the right to defence by the accused-appellant cannot be accepted. In view of the discussion made herein above, in the considered opinion of this Court, no illegality, perversity and abuse of process of law, is found and hence, no case for interference in the judgment and order impugned passed by the learned trial court convicting and sentencing the appellant for the offence under Section 307 IPC is made out and the appeal preferred by the appellant deserves to be dismissed being devoid of any merit. 26. Resultantly, the appeal preferred by the accused-appellant Bhanwaria is dismissed being devoid of any merits. The appellant is on bail. His bail bonds are cancelled. The appellant Bhanwaria shall surrender himself to serve out the remaining part of his sentence. The learned trial court is directed to take further steps/proceedings in accordance with law for executing the impugned judgment to serve out the sentence awarded to the appellant. The record of the case along with copy of this judgment to be returned to the learned trial court forthwith.