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2017 DIGILAW 1533 (RAJ)

Bula Ram v. State of Rajasthan

2017-07-11

G.R.MOOLCHANDANI, KANWALJIT SINGH AHLUWALIA

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JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. Chander Singh S/o Harchand Singh, his brother Bula Ram, Mahaveer Prasad S/o Shri Ram, Vijay Singh @ Vijay Kumar S/o Ram Chandra and Kanwar Singh S/o Bula Ram, were tried by the court of Additional Sessions Judge No. 2, Alwar for the offences under Sections 148, 302, 302/149, 323, 324 and 326 or 326/149 IPC. 2. The trial Judge vide impugned judgment dated 6.9.1989, acquitted Vijay Singh @ Vijay Kumar, Kanwar Singh and Mahaveer Prasad. However, the trial Judge vide impugned judgment dated 6.9.1989, convicted Chander Singh and Bula Ram for the offences punishable under Sections 302/34, 324/34 and 326/34 IPC. Having convicted the appellants for the above and offences, the trial Judge sentenced the appellants, as under:- U/s. 302/34 IPC To undergo life imprisonment and to pay a fine of Rs. 100/- each, in default of payment of fine to undergo one month RI. U/s 326/34 IPC To undergo two years RI and to pay a fine of Rs. 100/- each, in default of payment of fine, to further undergo additional one month's imprisonment. U/s. 324/34 IPC To undergo six months RI and to pay a fine of Rs. 50/- each, in default of payment of fine to further undergo additional one month's imprisonment. 3. Aggrieved against their conviction and sentence, the appellants have filed the present appeal. Acquittal of Vijay Singh @ Vijay Kumar, Kanwar Singh and Mahaveer Prasad has attained finality, as State of Rajasthan has opted not to file any appeal against the acquittal. 4. We may notice here that in the present case, the prosecution has failed to specify author of the fatal injury. Bachan Singh (PW-5) and Raju Singh (RW-1), first information/ complainant in their deposition before the court have specifically stated that all the accused caused injuries with Farsi and axe 20 (Kulhari) on the person of Guman Singh, the deceased and his father Bachan Singh (RW-5). 5. The trial Judge, noted that in the written report (Exhibit-P/1), Mahaveer Prasad was not named as accused and Bachan Singh in his statement recorded before a Magistrate under Section 164 Cr.PC. had only named Chander Singh and Bula Ram, as accused and thus, the trial Judge had extended benefit of doubt to the acquitted accused. 5. The trial Judge, noted that in the written report (Exhibit-P/1), Mahaveer Prasad was not named as accused and Bachan Singh in his statement recorded before a Magistrate under Section 164 Cr.PC. had only named Chander Singh and Bula Ram, as accused and thus, the trial Judge had extended benefit of doubt to the acquitted accused. However, it is undeniable fact that the statement made by Bachan Singh (PW-5) before the Magistrate is not a substantive piece of evidence and the witnesses in the court have asserted that all the five accused persons had caused injuries to the deceased Guman Singh and injured Bachan Singh (PW-5), being armed with lethal weapons i.e. Farsa and axe. 6. In the context of above, we shall notice the prosecution case, as set out in the written report (Exhibit-P/1) leading to registration of formal FIR (Exhibit-P/2) bearing No. 99/1986, registered at Police Station Mandhan, for the offences under Sections 307, 323, 324, 326 and 447 IPC. Admittedly, Guman Singh had died within one hour of the occurrence and subsequently, the offence was altered and Section 302 IPC was added. 7. The written report (Exhibit-P/1) submitted by Raju Singh (PW-1) before Mahesh Chand (PW-18), SHO, Police Station Mandhan, when translated into English, reads as under:- "To SHO Saheb Police Station Mandhan Sir, It is submitted that today on 30.9.1986, at about 4:00 PM, I was working in my field. In the adjoining field, Bachan Singh and Guman Singh were also working. Suddenly, Chander Singh and Bula Ram sons of Har Chand, by caste Ahir, resident of Nadhori came armed with Farsi and axe. Vijendra Singh son of Chander Singh and Kanwar Singh son of Bula Ram came armed with axe. They came in the field of Bachan Singh. All the four caused injuries with Farsi and axe on the person of Guman Singh. [Emphasis Supplied] Meanwhile, his father Bachan Singh came forward to save him. All the four also caused injuries on the hands and feet with Farsi and axe. Meanwhile, Bhanwar Singh, Jinak Singh came running. Seeing them coming, all the accused decamped from the spot. We brought injured to the village and then in the camel cart of Dal Singh S/o Chhaju Singh, brought Guman Singh and Bachan Singh to the police station. Condition of Guman is serious. Meanwhile, Bhanwar Singh, Jinak Singh came running. Seeing them coming, all the accused decamped from the spot. We brought injured to the village and then in the camel cart of Dal Singh S/o Chhaju Singh, brought Guman Singh and Bachan Singh to the police station. Condition of Guman is serious. Two months ago, there was fight between Chander Singh and Guman Singh and due to this grudge, the occurrence had taken place. I am presenting the report. Legal action be taken. Sd /- Raju Singh." 8. Mr. Deepak Soni, the learned counsel for the appellants has submitted that no medico- legal examination of deceased Guman Singh was conducted. He died on the way to the hospital. 9. Dr. Kailash Narain (PW-3) on 1.10.1986, at 9:45 AM, conducted autopsy on the dead body of deceased Guman Singh. In the Post Mortem so Report (Exhibit-P/4), doctor had noted following injuries on the person of Guman Singh:- "1. One incised wound 9 cm x 3½ cm x 3 cm size with skull bone exposed and cutting of bone over middle of skull, slightly left side, antero-posterior in direction, 17 cm away from root of nose and 14 cm above the upper part of left pinna. 2. One incised wound 9 cm x 3½ cm x 4 cm, over lower part of right side of back, muscles and upper part of posterior portion of illiac crest (right) cut, oblique in direction, medial to lateral downwards directions, 2 cm lateral to (right), mid-line and 7 cm backwards to anterior superior illiac spine right at level of 3rd lumber spine. 3. One incised wound 3 cm 2 x 2 cm x 2½ cm on right forearm, over dorso-medial area, vertical in direction, 5 cm below the medial condyle of right humerus. 4. One incised wound 3 cm x 2 cm x 2½ cm over medial side of right leg, cutting muscles, placed horizontally, 25 cm above the medial malleolus of right ankle. 5. One incised wound 2 cm x 1 cm x 1/4 cm, on dorso lateral surface of right forearm, 9 cm above the wrist joint, horizontal in direction." 10. As per opinion of the doctor, there was skull fracture of 17 cm in length. As per opinion of Dr. Kailash Narain (RW-3), cause of death was due to shock caused by head injury, laceration of brain and hemorrhage. 11. As per opinion of the doctor, there was skull fracture of 17 cm in length. As per opinion of Dr. Kailash Narain (RW-3), cause of death was due to shock caused by head injury, laceration of brain and hemorrhage. 11. It is undeniable fact that Bachan Singh (PW-5) had suffered injuries in the occurrence and injury No. 1 on his person, as per report of Radiologist, Dr. Mahendra Kumar Singhal (PW-4) was grievous in nature. 12. The case argued before us is in very narrow compass. The learned counsel for the appellant has drawn our attention to the statement made by Raju Singh (PW-1) in the court. This witness in examination-in-chief has stated as under:- ^^xqeku flag ds igys pkjksa mijksr eqyfteku us pksVsa ekjh] cPpu flag NqM+kus dks x;k rks gYyk ij ge Hkh igqaps rks ns[kk fd cPpu flag dks Hkh pksVsa eqyfteku us QlhZ o dqYgkM+h ls ekjuk 'kq: dj fn;kA** 13. Injured witness, Bachan Singh (PW-5) in the court, in his examination-in-chief also supported Raju Singh (PW-1) and deposed as under:- ^^pUnu] cwyk] fot;] daoj flag egkohj eqyfteku ekStwnk vnkyr ogka vk;s] ftUgsa eSa tkurk gwaA pUnj o cwyk ds ikl QlhZ o dqYgkMh Fkh] lcls igys ikapksa eqyfteku us ,d lkFk xqeku flag dks QlhZ o dqYgkM+h ls ekjk FkkA tc chp esa cpko djus x;k rks eq>s Hkh ikapksa eqyfteku us QlhZ dqYgkM+h ls ekjihV fd;kA esjs dqy 9 pksV vkbZ Fkh] exj ;g ugha crk ldrk fd fdl eqyfte fdl LFkku ij pksV ekjhA** From the perusal of above, it is apparent that as per prosecution witness all the five accused caused injuries to the deceased Guman Singh. The witnesses in their deposition in the court have not specified as to who had caused injury on the head of deceased, which proved fatal. 14. Mr. B.N. Sandhu, the learned Additional Advocate General cum Public Prosecutor was pointly asked to name the author of the fatal injury. He has very fairly and candidly submitted that from the prosecution evidence, author of the fatal injury is not discernible and cannot be named. 15. The learned counsel for the appellant has posed question before us that in case author of the fatal injury cannot be ascertained and one of the accused has been acquitted, whether all the accused can be convicted for the offence under Section 302 read with Section 34 IPC. 16. 15. The learned counsel for the appellant has posed question before us that in case author of the fatal injury cannot be ascertained and one of the accused has been acquitted, whether all the accused can be convicted for the offence under Section 302 read with Section 34 IPC. 16. The question raised before us is no longer res integra. A Division Bench of this Court, to which one of us, Kanwaljit Singh Ahluwalia, J. was party, in bunch of three appeals, Rangdev and Others vs. State of Rajasthan, DBCRLA No. 717/2008, Heera Lal and Others vs. State of Rajasthan, DBCRLA No. 701/2008 and Gopal vs. State of Rajasthan, DBCRLA No. 735/2008, decided on 1.4.2015, placed reliance upon another judgment rendered by a Division Bench of this Court, incidentally to which again one of us, Kanwaljit Singh Ahluwalia, J. was party. In the case of Rangdev and Others (supra), it was held as under: "In case of Ratan and Others vs. State of Rajasthan, D.B. Criminal Appeal No. 1190/2005, decided on 09.01.2015 a Division Bench of this court of which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member considering the above issue had noted the law as under:- "Now, it is settled legal position that if author of the fatal injury is not known, and one accused has been acquitted, or author of the fatal injury has been acquitted, remaining accused shall not be responsible for murder, but for causing grievous injury. In Baul and Another vs. The State of Uttar Pradesh, AIR 1968 SC 728 , Hon'ble Apex Court has held as under:- "7. No doubt the original prosecution case showed that Sadhai and Ramdeo both hit the deceased on the head with their lathies. One tempted to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. If there was common intention established in the case the prosecution would not have been required to prove which of the injuries was caused by which assailant. But when common intention is not proved the prosecution must establish the exact nature of the injury caused by each accused and more so in this case when one of the accused has got the benefit of the doubt and has been acquitted. It cannot, therefore, be postulated that Sadhai alone caused the injuries on the head of the deceased. But when common intention is not proved the prosecution must establish the exact nature of the injury caused by each accused and more so in this case when one of the accused has got the benefit of the doubt and has been acquitted. It cannot, therefore, be postulated that Sadhai alone caused the injuries on the head of the deceased. Once that position arises the doubt remains as to whether the injuries caused by Sadhai were of the character which will bring his case within Section 302. It may be that the effect of the first blow became more prominent because another blow landing immediately after it caused more fractures to the skull than first blow had caused. These doubts prompt us to give the benefit doubt to Sadhai. We think that his conviction can be safely rested under Section 325 of the Indian Penal Code, but it is difficult to hold in a case of this type that his guilt amounts to murder simpliciter because he must be held responsible for all the injuries that were caused to the deceased. We convict him instead of Section 302 for an offence under Section 325, Indian Penal Code and set aside the sentence of imprisonment for life and instead sentence him to rigorous imprisonment for seven years. As regards Baul his instigation was likely to result in the kind of, injury which was caused to the deceased. The least that could have happened was a grievous injury. In these circumstances, we do think that there is any room for interference in his case. His appeal must therefore be dismissed. In Karnail Singh vs. State of Punjab, (1976) 4 SCC 816 Hon'ble Apex Court considered the same issue and held as under:- "2. The prosecution case regarding the assault by the appellant Karnail Singh on Sarwan Singh deceased has been proved beyond reasonable doubt by the two courts below. The short question for consideration in this case is as to what is the nature of the offence that the appellant has committed. As Zora Singh has been acquitted the charge under Section 302/34 I.RC. disappears and the question now is as to what offence the appellant, who alone must have assaulted the deceased, has committed. The short question for consideration in this case is as to what is the nature of the offence that the appellant has committed. As Zora Singh has been acquitted the charge under Section 302/34 I.RC. disappears and the question now is as to what offence the appellant, who alone must have assaulted the deceased, has committed. In view of the acquittal of Zora Singh there is no evidence to show as to what particular injury was caused on the deceased by the appellant although he was armed with Kirpan. In these circumstances, it is not possible to convict the appellant under Section 302 I.P.C. simpliciter. As however it is indisputable that the accused was armed with Kirpan and used the same in assaulting the deceased, the accused must be held to have committed on offence under Section 326, viz., the offence of grievous hurt, because an injury which was caused was dangerous to life, which ultimately resulted in the death of the deceased. For these reasons we, therefore, allow this appeal to this extent that the conviction of the appellant is altered from one under Section 302 I.RC. to that under Section 326 I.RC. and the sentence is reduced from life imprisonment to 7 years' Rigorous Imprisonment." In State of Rajasthan vs. Kishan Singh and Others, (2002) 10 SCC 160 it has been held as under:- "5...............When the author of the fatal injury becomes doubtful - whether it was one of the accused-respondents before us or one of the accused acquitted by the trial court, against whose acquittal the State never filed any appeal, it would be difficult to find either Kishan Singh or Hem Singh guilty of causing that injury. No fault can, therefore, be found with the judgment of the High Court in acquitting the respondents of the charge under Sections 302/34 IPC. We are not satisfied that common intention to cause death of deceased Mastan Singh can be attributed to the respondents on the basis of evidence on the record. We agree with the High Court that the evidence in that behalf is completely lacking and discrepant. That being the position, both Kishan Singh and Hem Singh could only be convicted for the acts committed by them and as disclosed by the first informant at the earliest point of time. We agree with the High Court that the evidence in that behalf is completely lacking and discrepant. That being the position, both Kishan Singh and Hem Singh could only be convicted for the acts committed by them and as disclosed by the first informant at the earliest point of time. The injuries so attributed to them bring their case only under Sections 324/34 IPC and they were rightly convicted and sentenced for those offences by the High Court. In our opinion, the judgment of the High Court is well reasoned and based on proper appreciation of evidence. The acquittal of the respondents for the offence under Sections 302/34 IPC is well merited. It does not call for any interference at our hands. The appeal against acquittal is, accordingly, dismissed." In view of the settled legal position which has been noticed above by us, we are of the view that since the author of the fatal injury is not known, and one of the accused has been acquitted, and no appeal against the acquittal has been filed by the State, then, the remaining accused shall be responsible for causing grievous injury and not for offence of murder read with section 34 IPC or with aid of Section 149 IPC." In present case, as per complainant Dev Narain (PW-5), three injured witnesses namely Ramdev (PW-1), Deva (RW-8) and Kana (PW-9), all accused including Hardeen all had caused injuries to Shrawan deceased, Who is author of fatal injury is not known; Acquitted accused Hardeen can also be author of fatal injury. Law commands that where author of fatal injury is not known and one accused is acquitted all be responsible for causing grievous injury which may fall under Section 325 or 326 IPC, as the case may be." 17. In view of the judgments rendered by this Court in Rangdev and Others (supra) and Ratan and Others (supra), relying upon the judgment of Supreme Court, we have no option except to convert the offence. 18. Consequently, in the present case, we set aside the conviction of the appellants for the offences under Section 302/34 IPC. 19. As a result of thereof, we also set aside the sentence of life imprisonment awarded upon the appellants on this score. However, we convert the offence from 302/34 IPC to Section 326/34 IPC. 20. Now, we shall have to determine the quantum of sentence. 19. As a result of thereof, we also set aside the sentence of life imprisonment awarded upon the appellants on this score. However, we convert the offence from 302/34 IPC to Section 326/34 IPC. 20. Now, we shall have to determine the quantum of sentence. The occurrence in the present case took place on 30.9.1986, more than three decades ago. It is settled legal proposition that appeal is continuation of the trial and right of speedy trial as interpreted by the courts of law, under Article 21 of the Constitution of India, vest in the appellants. 21. The learned counsel for the appellants has contended that the statement of accused Bula Ram under Section 313 Cr.P.C. was recorded on 3.5.1989 and in the statement, age of Bula Ram has been recorded as 45 years. Thus, it is submitted that the appellant Bula Ram as on today is 76 years of age. The learned counsel for the appellant further submitted that statement of Chander Singh under Section 313 Cr.P.C. 1973 was also recorded on 3.5.1989 and in the said statement, age of Chander Singh is recorded as 65 years and hence, as on today, he is about 96 years of age. 22. After hearing the learned counsel for the parties, we are of the view that pain and agony of long protracted trial and age of the appellants along with their antecedents, can be construed as mitigating factors. 23. A Division Bench of this Court on 27.10.1989, had suspended the sentence of the appellants by passing the following order:- "Heard and perused the record. There are 4 eye witnesses in the case, The deceased died on account of one head injury. According to PW-2 (Khet Singh), the head injury was caused by Kunwar and Vijay co-accused acquitted by the trial court. The remaining 3 witnesses do not state that the head injury was caused by any of the applicants Bula Ram and Chander Singh. These two applicants were on bail during the trial. Having regard to the facts and circumstances, their application for suspension of sentence is allowed. Sentences awarded to them shall remain suspended during the pendency of the appeal and they shall be enlarged on bail provided each of them executes a personal bond in the sum of Rs. 5,000/- (Rs. Five thousand) together with two sureties, each in the amount of Rs. 2,500/- (Rs. Sentences awarded to them shall remain suspended during the pendency of the appeal and they shall be enlarged on bail provided each of them executes a personal bond in the sum of Rs. 5,000/- (Rs. Five thousand) together with two sureties, each in the amount of Rs. 2,500/- (Rs. two thousand and five hundred) to the satisfaction of the learned Addl. Sessions Judge No. 2, Alwar to put appearance in this court whenever called upon to do so." 24. We find that the appellants were on bail during the trial and immediately thereafter, their sentence was suspended by Division Bench of this Court. Suspension of sentence of appellants at the time of filing of appeal and their release on bail placed us in predicament. Shakespeare's word emerging in Hamlet's Soliloquy to be or not to be is a question which tease us. Whether it will be just to send a person of 96 years behind the bars after thirty-one years of the occurrence and if we do so, whether our legal system shall be painted, as harsh and at the same time we cannot become insensitive to the family of the victim. Valuable life was lost. Legal heirs of the victim have also been watching the dispensation of justice towards them from last more than thirty years. By balancing aggravating and mitigating circumstances, we find that it will be not just and appropriate to send the appellants behind the bars. However, at the same time, victim is required to be compensated. 25. Thus, we maintain the conviction of the appellants for the offence under Section 326/34 IPC, impose fine of Rs. 50,000/- upon each appellant and the amount shall be paid as compensation to the legal heirs of the deceased. We reduce the sentence to period already undergone by imposing fine of Rs. 50,000/- upon each appellant. In default of non- payment of fine, the appellant shall undergo four years RI. 26. Over and above, fine imposed by us, legal heirs of the victim shall be entitled to compensation under the Victim Compensation Scheme formulated by the State of Rajasthan under Section 357-A Cr.P.C. for death of deceased Guman Singh. 27. Secretary, Legal Services Authority, Alwar shall disburse the amount of compensation under the Victim Compensation Scheme to the legal heirs of the deceased. 27. Secretary, Legal Services Authority, Alwar shall disburse the amount of compensation under the Victim Compensation Scheme to the legal heirs of the deceased. The fine deposited in the trial court after realisation shall be paid by the trial to the legal heirs of the deceased.