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2018 DIGILAW 1008 (RAJ)

Madho v. State of Rajasthan

2018-04-16

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT & ORDER : Mohammad Rafiq, J. This appeal is directed against the judgment dated 7.2.1987 passed by Additional Sessions Judge, Baran in Sessions Case No.113/1983 whereby accused-appellant Heera Lal has been convicted for offence u/s.302 IPC and accused-appellants Madho, Kanwar Lal and Chhitar have been convicted for offence u/s.302/149 IPC. They are sentenced to life imprisonment with a fine of Rs.500, in default whereof, to further undergo rigorous imprisonment of three months. Accused-appellant Kanwar Lal has also been convicted for offence u/s.324 and accused-appellants Madho, Chhitar and Heera Lal have been convicted for offence u/s.324/149 IPC and sentenced to two years' imprisonment with a fine of Rs.100 each, in default whereof, to further undergo one month's rigorous imprisonment. All the accused-appellants are also convicted under Section 148 IPC and sentenced to rigorous imprisonment of one year each. All the sentenced were ordered to run concurrently. 2. Facts of the case are that on 08.06.1983 Parasram Son of Heera Lal Banjara submitted a written report at police station Mothpur against the six accused persons namely; Bheru Lal, Gulab, Madho, Kanwar Lal, Chittar and Heera Lal. As per the prosecution case, the family of the complainant went outside the village for earning their livelihood and they gave the land namely; 'sundiwale field' to one Kanhaiya Lal on crop sharing basis for cultivation. These persons returned to the village after 5-6 years. 3. When the complainant party left the village, after that accused appellant Bhyeru Lal Gurjar was cultivating the field. In the morning of the date of occurrence, the complainant and his father went to cultivate the field. When they were ploughing the field at about 11.00 AM, all the named six accused persons came there with 'lathies' and 'gandasis' and asked them why they are cultivating the field. The complainant told that the field belongs to him and he has got the patta on his name. Bheru Lal thereafter abused and gave 2-3 blows to his father. The complainant also tried to intervene, them Bheru Lal, Kanwar Lal and Heera Lal gave beating to him as well. His father ran away from the place of occurrence due to fear and did not return till the time of lodging of the FIR. The complainant mentioned that he does not know that where he has gone. The complainant also tried to intervene, them Bheru Lal, Kanwar Lal and Heera Lal gave beating to him as well. His father ran away from the place of occurrence due to fear and did not return till the time of lodging of the FIR. The complainant mentioned that he does not know that where he has gone. As per his case, Morpal and one Kanwar Lal were going to take bath on the river at the time of the occurrence and they have witnessed the same. The police on the basis of this information, registered the case against the accused appellants for offences under Sections 147, 148, 149, 307 and 323 IPC. 4. Thereafter when dead body of Heera Lal was found, offence of Section 302 IPC was also added. After investigation the police submitted the charge sheet against all the named accused appellants. The learned trial court framed the charges under Sections 148, 302, 302/149, 307 and 307/149 IPC. The accused appellants denied the charges levelled against them and pleaded not guilty. The prosecution examined 16 witnesses and produced 35 documents to prove the case against the accused persons. In defence the accused examined 5 witnesses and produced 3 documents to prove the defence. The learned trial court after hearing both the parties, convicted and sentenced the accused appellants as mentioned above vide judgment dated 07.02.1987. 5. Shri Rinesh Gupta, learned counsel for the accused-appellant has argued that the conviction of the accused appellants under Sections 148, 302/149, 324 and 324/149 IPC is bad in law and against the material available on the record. The learned trial court has placed reliance on the testimony of Parasram (PW1), Kanwar Lal (PW6) and Morpal (PW7) for convicting the accused appellants. From a bare perusal of the statements of these three witnesses, it is clear that no reliance can be placed on the testimony of these three witnesses. Parasram (PW1) is the real son of deceased Heera Lal. The manner in which this witness has acted, clearly shows that he is not a reliable witness. This witness has made improvements and contradictions in his statement. He has suppressed the true version of the occurrence and also implicated the accused appellants falsely. The statements of Kanwar Lal (PW6) and Morpal (PW7) are also not reliable. These two witnesses are chance witnesses and they belong to the caste of the deceased. This witness has made improvements and contradictions in his statement. He has suppressed the true version of the occurrence and also implicated the accused appellants falsely. The statements of Kanwar Lal (PW6) and Morpal (PW7) are also not reliable. These two witnesses are chance witnesses and they belong to the caste of the deceased. Their presence at the time of the occurrence is very much doubtful. There was no occasion for them to be present at that time to witness this occurrence. The learned trial court has not at all considered this aspect of the case and failed to scrutinise the testimony of these two witnesses. 6. Learned counsel submitted that the trial court has not critically examined the statements of the prosecution witnesses and has failed to consider the improvements and contradictions. 7. There was delay in lodging the FIR and the learned trial court has not properly considered that there was no explanation about the delay in lodging of this FIR. The FIR was a concocted and fabricated document and the same came after consultation and after making out a story. Thus in these circumstances the prosecution case cannot stand and it is liable to be rejected. The trial court has not at all considered that it was a case of right of private defence to the property. As per the prosecution case itself, the accused appellant Bheru Lal was cultivating the land from the last 5-6 years when the family of the complainant left the village. 8. This fact was in the knowledge of the complainant. Even then the complainant party went to cultivate the field. It is the case of the prosecution that when the accused persons came there, they asked them why they were cultivating the field. Only after that, this occurrence took place. The trial court has not properly considered this aspect of the case that the prosecution has suppressed the true version and the genesis of the occurrence. From the facts and circumstances of this case, it is clear that the accused persons tried to stop the members of the complainant party and then this occurrence took place suddenly and without any premeditation. It also seems that the members of the complainant party were not ready to leave the field and the accused persons applied force for removing them from the field. It also seems that the members of the complainant party were not ready to leave the field and the accused persons applied force for removing them from the field. It is well settled law that a trespasser has got a right of private defence against the true owner of the land if he has got long possession over the disputed land. It is also settled law that by a single act of the true owner, it cannot be said that the true owner has dispossessed the trespasser from the land. Thus if the true owner of the land comes in the field then the trespasser had right to use force against him. In this case both these principles are applicable from all the four corners. It is the prosecution case that first time on the date of occurrence they went to plough the field at about 11.00 AM the accused persons came there and asked them to leave the place. Only after that, the occurrence took place as per the prosecution case itself. Thus in these circumstances the accused appellants had right of private defence to the property. 9. It is contended that there was no common object to commit the murder of Heera Lal. Thus the conviction of the accused appellants under Section 302/149 IPC or 302 IPC and Section 148 are bad in law and liable to be set aside. As per the prosecution case itself Heera Lal deceased ran away from the place of occurrence and he was never found. Thus it cannot be said that the deceased Heera Lal died due to the injuries caused by the accused appellants. Thus in these circumstances when there is no definite evidence available on the record for causing the injuries on the person of the deceased, the conviction of the accused persons cannot be sustained under Section 302/149 IPC. 10. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and supported the impugned judgment. He submitted that there is ample evidence against the accused-appellants to convict them for the alleged offence. No interference ought to be made in the impugned judgment. The appeal be therefore dismissed. 11. We have given our anxious consideration to the rival submissions and perused the material on record. 12. He submitted that there is ample evidence against the accused-appellants to convict them for the alleged offence. No interference ought to be made in the impugned judgment. The appeal be therefore dismissed. 11. We have given our anxious consideration to the rival submissions and perused the material on record. 12. The earliest version that was disclosed by the informant Parasram, the injured eye witness in the written report (Ex.P1) was that when he went to plough the agriculture land along with his father Heera Lal (now deceased) around 11.00 AM, the accused Bhehru Lal, Kanwar Lal, Heera Lal, Madho Lal, Gulab, all Gujars residents of Badodiya and Chittar S/o Moti Lal Gujar, resident of Narsinghpura, Village Badodiya came there. They were all armed with 'lathis' and 'gandasis'. They on coming there, demanded explanation from him as to why he is ploughing the field. The informant thereupon told them that since the land was recorded in the revenue records in their name, they were ploughing the same. Suddenly, the accused started abusing the informant. Bheru Lal, one of the accused inflicted 2-3 blows on his father-Heera Lal. Then Bheru Lal, Kanwar Lal and Heera Lal also subjected the informant to beating, as a result of which he sustained injuries on his hands, legs and head. When, however, this witness (Paras Ram) appeared as PW1 in court, he made deviation from the original version in which he has stated that Kanwar Lal had 'gandasi' and Bheru Lal had a 'lakri'. Kanwar Lal inflicted a 'gandasi' blow on his head. Second blow was delivered on his hand, as a result of which, one finger of his right hand got cut. Heera Lal Gujar inflicted a 'gandasi' blow on his father-Heera Lal, who fell on the ground. Bheru Lal inflicted a 'lathi' blow at the back of his father. He (this witness) then ran away from there due to fear to his life. Bheru Lal and 3-4 other accused chased him, but he somehow managed to escape. It was then alleged by this witness that Bheru Lal, Kanwar Lal, Gulab, Madho, Chhitar Lal and Heera Lal gave beating to his father. Bheru Lal Gujar dragged him and his father to his house. This witness was subjected to cross examination with reference to the version he gave in written report (Ex.P1) and also in his police statement (Ex.D1). It was then alleged by this witness that Bheru Lal, Kanwar Lal, Gulab, Madho, Chhitar Lal and Heera Lal gave beating to his father. Bheru Lal Gujar dragged him and his father to his house. This witness was subjected to cross examination with reference to the version he gave in written report (Ex.P1) and also in his police statement (Ex.D1). While in written report/FIR, he alleged that Bheru Lal inflicted 2-3 blows on the body of his father-Heera Lal, but in the police statement (Ex.D1), he alleged that Bheru Lal Gujar immediately on arriving at the place of occurrence inflicted 'lathi' blow at the back of his father-Heera Lal. Kanwar Lal inflicted a 'gandasi' blow on the head of his father-Heera Lal. He, however, failed to give satisfactory explanation as to the discrepancy in the version, he disclosed in the written report and the stand, which he took in the Court statement. Similarly also, he could not explain contradictions between what he stated in police statement Ex.D1 and the statement given in the Court. 13. Two eye witnesses were named by this witness-informant (PW1) in the written report namely; Morpal S/o Nandlal and Kanwar Lal Banjara. When we see the statement of Kanwar Lal (PW6), we see that he has alleged that Bheru Lal had a 'lakri' and Kanwar Lal had a 'gandasi'. Kanwar Lal inflicted a 'gandasi' blow on the head of Paras Ram. Bheru Lal inflicted a 'lathi' blow at the back of Heera Lal. Then all other accused started beating them. Heera Lal ran away towards Badodiya. Paras Ram ran away towards the village. Then all accused dragged Heera Lal towards Badodiya. Bheru Lal inflicted a 'lakri' blow on Heera Lal and Kanwar Lal inflicted a 'gandasi' blow on his head. Even this witness was confronted with his police statement Ex.D2 in which he has stated that Bheru Lal Gujar on arriving at the place of occurrence, inflicted 'lakri' blow at the back of Paras Ram and then Kanwar Lal also inflicted a 'gandasi' blow on the head of Paras Ram. Thereafter, Heera Lal Gujar inflicted a 'lakri' blow on his ankle. Then, Kanwar Lal inflicted a 'gandasi' blow on the head of Paras Ram. Thereafter, Heera Lal Gujar inflicted a 'lakri' blow on his ankle. Then, Kanwar Lal inflicted a 'gandasi' blow on the head of Paras Ram. As regards the injury of the deceased Heera Lal, even this witness stated that Bheru Lal Gujar inflicted a 'lakri' blow at the back of Heera Lal (deceased) and Kanwar Lal inflicted a 'gandasi' blow on the head of Heera Lal (deceased). 14. Statement of Morpal (PW7), the third eye witness named in the written report is not quite clear on this aspect. This witness has made omnibus allegations against all the accused of causing injuries to injured Paras Ram and deceased Heera Lal. No specific allegation has been made by him in respect of injury of the deceased against any of the accused. The analysis of the evidence thus clearly shows that while there is somewhat consistency in regard to the injuries of the injured Paras Ram (PW1) in the statement of the prosecution witnesses, but there is lot of discrepancies in regard to injuries of the deceased. The first version, which was given in the written report attributed injuries of the deceased to Bheru Lal, however, no weapon was mentioned, but in the Court statement, the informant while appearing as PW1 has tried to improve upon that version by alleging that Heera Lal Gujar inflicted a 'gandasi' on the head of his father Heera Lal (deceased) and then Bheru Lal inflicted 'lathi;' blow at his back. 15. Similarly, Kanwar Lal (PW6) has alleged that Bheru Lal inflicted 'lakri' blow on Heera Lal and Kanwar Lal inflicted a 'gandasi' blow on the head on his head. The allegations of these two witnesses of causing injuries on the head of deceased by 'gandasi' by two accused namely; as per the allegation of Paras Ram by Heera Lal and as per the allegation of Kanwar Lal S/o Mangi Lal by accused Kanwar Lal is not substantiated by the postmortem report of deceased Heera Lal (Ex.P10), according to which deceased sustained two bruises namely; (1) 3" x 2" over the Rt. Parieto temporal region of scalp and (2) 2"x1" over the right parito occipital region of scalp. Parieto temporal region of scalp and (2) 2"x1" over the right parito occipital region of scalp. This therefore belies the allegation of these witnesses in the Court statement that Bheru Lal inflicted 'lakri' blow at the back of deceased Heera Lal because there are no corresponding injuries at the back of Heera Lal, which fact has been amply proved by Dr. Sudarshan Dutta (PW10). He not only proved the postmortem report, but also the opinion given by him (Ex.P12) that there were no other injuries on the body of the deceased except the aforementioned two bruises. The possible conclusion that can be on the totality arrived at can be therefore that the two injuries that were caused to the deceased on the head were the earliest injuries, which Bheru Lal caused to him as per the first version given by the informant (PW1) in the written report as in their statement before the Court, both the witnesses are alleging that Bheru Lal had 'lathi' whereas with regard to other two accused namely; Heera Lal Gujar and Kanwar Lal Gujar that they had 'gandasi'. Such version is not corroborated by medical evidence because there is no injury on the person of the deceased by 'gandasi'. The only sharp edged injury that has been received by Paras Ram is injury no.1, where for the learned trial court has recorded of Section 324 IPC with the aid of Section 149 IPC against all the accused. The evidence has clearly proved that the possession of the disputed land was with the accused, although the nature of their possession was trespass as the land was recorded in the revenue record in the name of complainant party. Even if their possession is in the nature of trespass and the accused trying to defend, it was not expected of them to take the law in their hands by subjecting the deceased to such a severe beating, but it appears that the accused formed unlawful assembly for giving so severe beating to the complaint party so as to drive him out from the agriculture field, but not of committing murder of deceased. One of the accused Bheru Lal exceeded the common object of that assembly by inflicting a 'lathi' blow on the head of deceased, as a result of which, he died. He therefore alone can be held responsible for exceeding that common object. One of the accused Bheru Lal exceeded the common object of that assembly by inflicting a 'lathi' blow on the head of deceased, as a result of which, he died. He therefore alone can be held responsible for exceeding that common object. He, however, has during the pendency of the appeal has died. Accused appellant Gulab has also died. Thus the appeal qua Bheru Lal and Gulab stands abated. 16. In view of above discussion, this appeal succeeds in part and is disposed off in the following terms: (1) that the conviction of the accused-appellant Madho, Kanwar Lal and Chittar for offence u/s.302/149 IPC and Heera Lal for offence u/s.302 IPC and the consequential sentence on that count is set aside; (2) that the conviction of the accused-appellant Kanwar Lal for offence u/s.324 and Madho, Chittar and Heera Lal for offence u/s.324/149 is maintained and sentence therefor is reduced to the period undergone by them, on the condition of payment of fine of Rs.25,000/- by each of the accused (Rs.1,00,000 total), failing which the defaulting accused shall have to further undergo rigorous imprisonment of one year; (3) that the conviction of the accused-appellants for offence under Section 148 IPC is maintained and each of them is sentenced on that count to the period already undergone on the condition of the payment of fine of Rs.5,000 each (Rs.20,000 total), failing which the defaulting accused shall have to undergo simple imprisonment of six months; (4) that out of aforesaid amount of fine of Rs.1,20,000/-, a sum of Rs.25,000//- shall be payable to the injured Parasram, who sustained eight injuries; (5) that the remaining amount of Rs.95,000/- shall be paid to the widow of the deceased-Heera Lal; (6) that the accused-appellants Madho, Kanwar Lal, Chhitar and Heera Lal are on bail, therefore, their bail bonds and sureties are discharged. They need not surrender. 17. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.