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2016 DIGILAW 1561 (RAJ)

Kamal, S/o Nadan v. State of Rajasthan

2016-11-03

NAVIN SINHA, VIJAY KUMAR VYAS

body2016
JUDGMENT : Navin Sinha, J. The present appeal arises from judgment and order dated 23.02.1984 by the Sessions Judge, Sawai Madhopur in Sessions Trial No.7/84 (41/83) convicting the appellants variously under Sections 302, 302/149, 147, 323, 323/149 and 323/34 IPC along with fine and default stipulation. 2. Appellants Kamal and Shriphal are stated to have been deceased during the pendency of the appeal as informed to the State Counsel in writing on 29.08.2016 by the Officer in-charge P.S. Salempur. The appeal therefore stands abated as against them. 3. Kamod Singh, PW-1 brother of the deceased Ramsingh gave a written report, Exhibit P/1 to the Salempur Police Station on 13.12.1982 at 3:15 p.m. with regard to an assault on the deceased and his son Ganpat, PW-2 the previous day at 4.00 p.m. Formal FIR No.113/1982, Exhibit P/2 was registered on basis of the same that while Ganpat, PW-2 was having his bath at the well water splashed, the appellant Dalganji abused and assaulted the witness with lathi on the head. Sriphal assaulted with lathi on the thigh, Harswarup assaulted with lathi on the back and Ramsahai assaulted with lathi on the shoulder. The deceased intervened and was assaulted by Kamal on the head with a 'dhariya'. The others assaulted with lathi. On hearing the commotion the informant, PW-1 and Sujan Singh, PW-4 came running. The deceased was first taken to Mahu and then to Hindaun hospital from where he was referred to the Karoli hospital and expired there at about 11:00 p.m. Post mortem, Exhibit P/7 was conducted by P.W.-5 Dr. R.C. Bansal who found the following five injuries on the deceased : - (i) Lacerated wound over right side of median line of scalp over frontal area with clotted blood (size 6 c.m. X ½ c.m. x skin deep) (ii) Contusion with swelling over right side of occipital region size 6 c.m. X 6 c.m. (iii) Contusion with swelling over left parietal region in anterior part size of 5 c.m. X 4 c.m. (iv) Contusion with swelling over posterior part of left region (5 c.m. X 3 c.m.) (v) Contusion over right scapular region 7 c.m. X 2 c.m. Death was opined due to coma and shock because of severe head injury by blunt weapon and the time elapsed since death was estimated as approximately 24 hours. 4. 4. Learned Counsel for the appellants submitted that the real manner and place of occurrence, and who may have been the original assailants has been suppressed by the prosecution. FIR No.19/1982 was registered first in time on 13.12.1982 at the Karoli police station at 8:15 am and investigation commenced. Inquest report, Exhibit P/4 was prepared by the SHO Karoli, Daulat Singh who has not been examined. The FIR was never exhibited and brought on record by the prosecution. The possibility of false implication of the entire family by a subsequent well thought FIR no.113/82 by PW-1, Kamod Singh on 13.12.1982 at 3:15 p.m. at Salempur police station after calling his brother Rup Singh who was in the police force, cannot be ruled out. The witness also deposed having given another written report at Mau which has also not been brought on record by the prosecution. Thus there are three separate FIR's with regard to the same occurrence. 5. PW-1, Kamod Singh and PW-4, Sujan Singh were not eye witnesses to the occurrence but reached after the assault. There was no enmity between the parties. The well where the occurrence took place was in possession of the appellants who were using it for cultivating and irrigating the fields of Mahadev Singh under the rights granted by the latter. The question of having any common object for assault at their own well does not arise and neither were they possessed of any deadly weapons of assault dhariya is an agricultural instrument and a lathi is a common item kept by villagers. 6. Ganpat, PW-2 the sole injured eyewitness is related to the deceased, Kumod Singh, PW-1 and Sujan Singh, PW-4. In the facts and circumstances of the case, it will not be safe to base conviction on basis of a solitary related witness because he cannot be said with certainty to have been injured in the same occurrence. 7. The first assault with dhariya by Kamal upon the deceased Ramsingh was made by the blunt end and not the sharp edge. It is evidence that there existed no intention or common object to kill. Similarly the other two injuries on the head in an omnibus assault only caused contusion with swelling which indicated it was not made with severity of force. It is evidence that there existed no intention or common object to kill. Similarly the other two injuries on the head in an omnibus assault only caused contusion with swelling which indicated it was not made with severity of force. The genesis of the occurrence was extremely trivial on account of water splashing while Ganpat, PW-2 was having bath at the well. The initial assault upon Ganpat, PW-2 caused only simple injuries. The assault on the deceased was at the spur of the moment when he intervened with no premeditation or preparation. The plea of alibi by the appellants supported by evidence of DW-1, Tejbhan Singh and DW-2 Charan has not been properly appreciated. The allegations of assault on the deceased with lathi by the appellants, with the exception of Kamal are omnibus in nature. Babu, one of the accused who also assaulted the deceased in an omnibus manner has been acquitted by giving him the benefit of doubt. The appellants being similarly situated are also entitled to acquittal. 8. Reliance was placed on AIR 1980 SC 638 (Marudanal Augusti v. State of Kerala), AIR 1980 SC 1160 (Bandi Mallaiah & Ors. v. State of A.P.) and AIR 1981 SC 1230 (Sevi & Another v. State of T.N. & Another) in support of the submission that if the original FIR itself had been suppressed grave doubts arise about the veracity of the allegations and the appellants are entitled to the benefit of doubt. 9. In the alternative it was submitted that if the Court comes to the conclusion that the appellants were the assailants, considering that assault was made with lathis in an omnibus manner causing only contusion and swelling no offence under Section 302 IPC was made out and best the conviction may be under Section 325/149 IPC, the maximum punishment for which was seven years. The occurrence had taken place long years ago. The appellants have already suffered the agony of a criminal trial and long pendency of the appeal, they have undergone varying periods of custody of upto two and half years and today are approaching 80 years of age. The period of custody undergone may be considered sufficient punishment. 10. Counsel for the State submitted that no FIR was lodged at Mau or Karauli Police Station on 13.12.1982 and investigation done. The period of custody undergone may be considered sufficient punishment. 10. Counsel for the State submitted that no FIR was lodged at Mau or Karauli Police Station on 13.12.1982 and investigation done. The deceased was first taken for treatment to Hindaun from where he was referred to Karauli and died by the time he reached there. The doctor at the Karauli hospital informed the Karoli police station. ASI Amarnarain Pareek, PW-12 was deputed by SHO, Daulat Singh to the hospital. A police report was registered under Section 174 Cr.P.C. The statement Exhibit D/2 of the injured Ganpat, PW-2 and his MLR Exhibit P/5, was recorded in which he narrated the same story. The inquest report was prepared and along with other exhibits of the deceased as also the statement was forwarded to the Police Station, Salmepur where the occurrence had taken place. Ganpat, PW-2 is consistent in his statement in Exhibit D/2, his police statement during investigation pursuant to the FIR and deposition during trial. There being no contradictions he is a credible and reliable injured witness. 11. The FIR, Exhibit P/2 has been proved by Baliram, PW-10 of the Salempur Police Station. The fact that Babu may have been acquitted cannot automatically lead to acquittal of the other appellants in view of the clear evidence available with regard to their presence and assault made on the deceased. The plea of alibi by Dalganji and the others has been properly considered and rejected which calls for no interference. 12. The assault by the appellants and the injuries caused to the deceased cannot fall under Section 325 IPC dealing with grievance hurt in view of the fact that death has occurred. If the assault was made at the spur of the moment as contended, nonetheless considering that more than one assault was made on the head of the deceased the appellants can well be attributed the knowledge that death was likely to be caused invoking Section 304 Part II IPC. 13. We have considered the submissions on behalf of the parties and examined the evidence on record also. 14. The deceased Ramsingh was the brother of Kamod Singh, PW-1 and uncle of Ganpat, PW-2. He was assaulted at the well around 4:00 p.m. on 12.12.1982 and taken to the Hindaun hospital for treatment from where he was referred to Karauli hospital and expired there at night. 14. The deceased Ramsingh was the brother of Kamod Singh, PW-1 and uncle of Ganpat, PW-2. He was assaulted at the well around 4:00 p.m. on 12.12.1982 and taken to the Hindaun hospital for treatment from where he was referred to Karauli hospital and expired there at night. Information was sent to the Karauli Police Station by the doctor. ASI Amarnarain Pareek, PW-12 was deputed by the SHO Karoli, Daulat Singh to investigate under Section 174 Cr.P.C. the circumstances under which death may have taken place. It was not an FIR under Section 154 Cr.P.C. and the statement of Ganpat, PW-2, Exhibit D/2, recorded the same night cannot be said to have been recorded under Section 161 Cr.P.C during investigation but only for the purposes of the inquest report Exhibit P/4. It mentions that the occurrence as informed pertained to the jurisdiction of the Salempur police Station and therefore was being forwarded to it along with the exhibits seized belonging to the deceased. The statement of Ganpat, PW-2 in Exhibit D/2, his police statement under Section 161 Cr.P.C. during investigation and court deposition are consistent in all material particulars inspiring confidence. There is nothing in his cross examination which can be said to make him an unreliable or unsafe solitary witness to even remotely suggest that he was injured in some other occurrence not involving the appellants. 15. The submission on behalf of the appellants that FIR No.19/1982 registered at Karauli Police Station on 13.12.1982 at 8:15 am had been suppressed therefore merits no consideration. Likewise the failure of the prosecution to examine the Karoli SHO Daulat Singh is considered inconsequential in view of the statement of ASI Amarnarain Pareek, PW-12. No FIR was registered at Mau. A careful reading of the evidence of Kamod Singh, PW-1 reveals that Exhibit P/1 was documented at Mau and then lodged at Salempur police station. It cannot be held that the FIR, Exhibit P/2 was created after deliberation for false implication. 16. Kamod Singh PW-1 and Sujan Singh, PW-4 were not eyewitnesses, but came after the assault had taken place. There is no principle of criminal jurisprudence that conviction cannot be based on the evidence of a solitary eyewitness or that because he was related to the deceased. The evidence of a related solitary eyewitness may only call for greater scrutiny and closer examination. There is no principle of criminal jurisprudence that conviction cannot be based on the evidence of a solitary eyewitness or that because he was related to the deceased. The evidence of a related solitary eyewitness may only call for greater scrutiny and closer examination. If there are material contradictions with other evidence on record, it will surely not be safe to base conviction on the same. But, if the evidence of the solitary eyewitness is credible, reliable and inspires confidence in the Court coupled with corroboration to be found from other surrounding evidence conviction can be based upon the same. The law raises a presumption that if a person was injured in the same occurrence he was speaking the truth and would not let go the real assailants. The evidence of such witness carries great weight unless there are sufficient reasons to doubt the same. Ganpat, PW-2 was injured in the same occurrence. 17. In (2012) 1 SCC 529 (Jaisy v. State) the conviction was based on the evidence of the brother of the deceased who was the solitary witness after the two other witnesses had turned hostile. Similarly in (2012) 4 SCC 79 (Mano Dutt v. State of U.P.) it was observed :- "33. The court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party. The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters stated by this Court in a catena of judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary, then the court would not fall in error of law in relying upon the statement of such witness...." 18. The existence or non-existence of any previous enmity may not always be relevant for common object. There can never be direct evidence of common object which will have to be culled out from the entirety of the surrounding facts and circumstances. It is not necessary that there must be evidence of a premeditation by earlier meeting of minds before common object can be inferred. Common object can also develop on the spot. There can never be direct evidence of common object which will have to be culled out from the entirety of the surrounding facts and circumstances. It is not necessary that there must be evidence of a premeditation by earlier meeting of minds before common object can be inferred. Common object can also develop on the spot. It will therefore have to be culled out from the facts of each case including manner of occurrence, the nature of assault, the kind of weapon used and whether a person participated in the assault as a member of the unlawful assembly or was merely present with a passive role without actually indulging in the assault. 19. The fact that the appellants assaulted the deceased only when he intervened is not considered relevant. The first assault on the head of deceased with a dhariya was made by Kamal. The remaining appellants assaulted in an omnibus manner with two injuries of contusions with swelling 6 c.m. X 6 c.m. and 5 c.m. X 4 c.m. over the right and left parietal region along with contusion and swelling of 5 c.m. X 3 c.m. over posterior part of left parietal region. These three injuries on the head cumulatively were sufficient to cause death. 20. The fact that Babu may have been acquitted can be of no benefit to the appellants in view of the evidence available against them and the fact that five injuries have been found on the person of the deceased. 21. The plea of alibi, which is a weak defence has been considered by the Trial Judge including examination of the election registers and that appellant Dalanji was not even a candidate in the election including that the entries in the register bore overwriting to disbelieve Tejbhan Singh, DW-1 with regard to Dalganji and Charan, DW-2 in so far as the other appellants are concerned. 22. Ganpat, PW-2 deposed that he was assaulted by the appellants except for Kamal. The injuries on him were simple in nature. The genesis of the occurrence was extremely trivial in nature with regard to splashing of water at the well. The appellants were incensed but cannot be said to have any intention or object to kill the deceased but only to teach him a lesson for intervening. The injuries on him were simple in nature. The genesis of the occurrence was extremely trivial in nature with regard to splashing of water at the well. The appellants were incensed but cannot be said to have any intention or object to kill the deceased but only to teach him a lesson for intervening. In the nature of the assault made by them together it can safely be concluded that they had a common object to teach a lesson to the deceased and can be attributed with the knowledge that death was likely to be caused. The assault was made on the spur of the moment without unnecessary force. The conviction of the appellants under Section 302, 302/149 therefore deserves to be altered to one under Section 304 Part II/149 IPC. The conviction under Section 147 IPC calls for no interference. The conviction of the appellants under Section 323/149 for injuries caused to Ganpat, PW-2 also calls for no interference. Their conviction under Section 323/34 is set aside. 23. Marudanal Augusti (supra) is distinguishable on its own facts as the FIR was sent belatedly to the Magistrate and there were further intrinsic circumstances throwing serious doubts on the prosecution case. The observation that the entire prosecution case will collapse if the FIR is held to be fabricated or brought into existence long after the occurrence had taken place came to be made in that background. In Bandi Mallaiah (supra) two of the accused were not named by the witness at the earliest point of time and their names were introduced later which created doubts about the prosecution story. Sevi (supra) is also distinguishable on its own facts as the prosecution could not produce the original first information report registered which had been substituted by another and the first information report book was also not produced by the sub-inspector notwithstanding the directions of the Court. It was in those circumstances it was opined that the original FIR had been suppressed. The witnesses were considered partisan in nature in the background of a tainted investigation. 24. The appellants have undergone varied periods of custody, being a maximum of two and half years. Sympathy or age cannot be justification to impose a sentence not commensurate with the nature of the offence proved. The witnesses were considered partisan in nature in the background of a tainted investigation. 24. The appellants have undergone varied periods of custody, being a maximum of two and half years. Sympathy or age cannot be justification to impose a sentence not commensurate with the nature of the offence proved. In the entirety of the facts and circumstances of the case the appellants are sentenced to five years rigorous imprisonment under Section 304 Part II/149 IPC. The conviction and sentence under Section 323/149 and 147 IPC shall run concurrently. The bail bonds of the appellants are cancelled and they are directed to surrender and/or be taken into custody for serving out the remaining period of their sentence. 25. The appeal is allowed in part with modification of the conviction and sentence. Appeal partly allowed.