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2018 DIGILAW 1015 (RAJ)

Bahadur Meena v. State of Rajasthan

2018-04-16

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT Mohammad Rafiq, J. - These two appeals are directed against the judgment and order dated 10.09.1986 passed by the Court of Sessions Judge, Jaipur District, Jaipur (for short 'the trial court') by which the accused-appellants Bahadur and Kailash in Appeal No. 420/1986 and Sadhu Ram and Jagdish in Appeal No. 424/1986were convicted and sentenced in the following manner: Name of Appellant Section Sentence Sadhu Ram 302 IPC Life imprisonment with fine of Rs. 500/-, in default of payment of fine to undergo one year's rigorous imprisonment. 1. Bahadur 2. Kailash 3. Jagdish 302/149 IPC Life imprisonment with fine of Rs. 200/-, in default of payment of fine to undergo one year's rigorous imprisonment. 1. Bahadur 2. Kailash 3. Sadhu Ram 4. Jagdish 147 IPC One year's rigorous imprisonment with fine of Rs. 200/-, in default of payment of fine to undergo two months' rigorous imprisonment. 1. Bahadur 2. Kailash 3. Sadhu Ram 4. Jagdish 447 IPC Three months' rigorous imprisonment with fine of Rs. 200/-, in default of payment of fine to undergo two months' rigorous imprisonment. 1. Bahadur 2. Kailash 3. Sadhu Ram 4. Jagdish 323 IPC Three months' rigorous imprisonment with fine of Rs. 100/-, in default of payment of fine to undergo 15 days rigorous imprisonment. 1. Bahadur 2. Kailash 3. Sadhu Ram 4. Jagdish 323/149 IPC Three months' rigorous imprisonment. All the sentences were ordered to run concurrently. 2. Facts of the case are that a written report (Exhibit P-4) was submitted by Gopal (P.W.7) on 08.11.1982, who appeared before S.H.O., Police Station Shahpura along with injured Sultan and Ramu stating therein that on that day at 10.00 A.M. all three of them were cultivating their agricultural land situated at their well at Meena Wali Tan Charsa. Accused Rampratap, Jagdish, Sahdu, Kailash, Bahadur all by caste Meena armed with lathies came there and started beating them, as a result of which they sustained several injuries including his father Ramu and uncle Sultan on head and other parts of the body. Hanuman son of Mahadev Ahir, Phoola Jat, who were present there intervened to save them. 3. The police on the basis of aforesaid written report, registered regular FIR No. 234/1982 (Exhibit P-9) for offence under Sections 147, 447 and 323 IPC and investigation commenced. During the course of investigation, Sultan died on 16.11.1982. 4. Hanuman son of Mahadev Ahir, Phoola Jat, who were present there intervened to save them. 3. The police on the basis of aforesaid written report, registered regular FIR No. 234/1982 (Exhibit P-9) for offence under Sections 147, 447 and 323 IPC and investigation commenced. During the course of investigation, Sultan died on 16.11.1982. 4. On completion of investigation, the police filed charge sheet against five accused including Rampratap for offence under Sections 302, 325, 147, 149, 447 IPC in the Court of Munsif and Judicial Magistrate, Shahpura on 16.02.1983. The case was committed to the Court of Sessions, Jaipur District, Jaipur. The trial court framed against accused Kailash for offence under Sections 147, 447, 302 in alternative 302/149, 325, 323/149 IPC; against accused Rampratap, Jagdish, Bahadur and Sadhu for offence under Sections 147, 447, 302 in alternative under Sections 302/149, 325/149, 323/149 IPC. The accused denied the charges and claimed to be tried. The prosecution in support of its case produced 16 witnesses and exhibited 39 documents. Thereafter, the accused were examined under Section 313 Cr.P.C. wherein they denied allegation and set up plea of right of private defence of property. The defence produced three witnesses and exhibited some documents. During the course of trial one of the two principal accused, who were author of two fatal injuries of the deceased, namely Rampratap died and trial against him was taken to have abated and it proceeded against the remaining accused. Upon completion of trial, the trial court vide impugned judgment and order dated 10.09.1986 convicted and sentenced the accused-appellants in the manner indicated above. Hence these appeals. 5. Mr. Rajesh Choudhary, learned counsel appearing on behalf of the accused-appellants Bahadur and Kailash argued that the judgment of the learned trial court is legally not sustainable being contrary to the provisions of law as also the facts of the case. The learned trial court failed to consider that in this case prosecution has not proved its case against the appellants beyond reasonable doubt. The dispute of land between the parties is said to be the cause of the alleged occurrence. Both the appellants are not in any manner connected with the land in question or the dispute there about. They have been roped in this case on account of enmity between the parties. The dispute of land between the parties is said to be the cause of the alleged occurrence. Both the appellants are not in any manner connected with the land in question or the dispute there about. They have been roped in this case on account of enmity between the parties. The learned trial court has ignored an important aspect of the matter that 5 persons including the appellants, who had stood trial, other three were injured in the incident. The present appellants did not suffer any injury. This leads to the inference that the appellants did not participate in the alleged incident as alleged by the prosecution. The learned trial court has not properly considered the facts and circumstances of the case in relation to the appellants. It would be seen in dying declaration (Exhibit P-14), the appellants are not alleged to have caused any injury to the deceased. Such a situation is also reflected from the contents of FIR (Exhibit P-4). The learned trial court failed to consider that there are several contradictions and improvements in the statements of the prosecution witnesses in relation of the appellants which have been over looked. Consideration of statement of Hanuman (P.W.9) would bear out that the appellants are not in any manner involved in the crime. The learned trial court failed in not properly framing the charge against the appellants as also erred in not properly recording the statement under Section 313 Cr.P.C. 6. Mr. Sanjay Sharma, learned counsel appearing on behalf of accused-appellant Jagdish argued that the judgment and order of the learned trial court is perverse on facts and contrary to provisions of law. The learned trial court has grossly erred in not appreciating the evidence in its true perspective and drawing wrong inferences. The disputed land was in the Khatedari of Ganglis (Father of the accused Ram Pratap) as is apparent from the lagan receipts (Exhibit P-10) and (Exhibit P-19 to Exhibit P- 35). It is not indicated or proved under whose orders the entry in red ink on (Exhibit P-38) was made and as such no reliance can be placed on this entry and for this reason, Exhibit P-38 is not a reliable piece of evidence. Exhibit P-37 does not show that it was made after inspection of the site or at the site so it is also not a reliable piece of evidence. Exhibit P-37 does not show that it was made after inspection of the site or at the site so it is also not a reliable piece of evidence. It is argued that jamabandi of the land showing ownership and possession of the accused party should have been accorded more importance. The counter FIR No. 235/82 giving the correct facts was lodged by the accused party and this fact of lodging the FIR has been admitted by Ghasi Ram (P.W.14). Even according to the prosecution, the accused Ram Pratap was the co-sharer, and as such without there being any valid entry in the revenue record or any other strong evidence, joint possession of the accused party cannot be disputed in law. The trial court has erred in disbelieving the evidence of possession of the disputed land produced by the defence, on flimsy grounds. According to testimony of Ramu (P.W.6) and others prosecution witnesses, when the accused party started ploughing in the Western part of the land, the complainant party illegally checked them and a quarrel took place. By assembling on the land of their ownership and possession, ploughing it and remaining there, the accused party had committed no offence and their assembly cannot be termed an unlawful assembly. The force used was within limits of the rights of private defence of person and property and as such the appellants had committed no offence. 7. It is argued that the appellant Jagdish had not caused any injury on the deceased as is apparent from the medical report and there is no other cogent evidence of any common object of murder of Sultan and sharing of the same by Jagdish. Therefore, his conviction under Section 302 IPC with the aid of Section 149 IPC is bad in law. Three injured on the side of complainant party had suffered only 8 injuries while three accused persons suffered as many as 12 injuries, so this fact goes to prove that the members of complainant party where more in number, well prepared and aggressors. There being no unlawful assembly, none of the members of the accused party can be convicted with the help of Section 149 IPC for any offence whatsoever. There being no unlawful assembly, none of the members of the accused party can be convicted with the help of Section 149 IPC for any offence whatsoever. Even if the object of the accused party is held to be commission of criminal tresspass, taking forcible possession of the land, and beating for that purpose, it can by no stretch of imagination be extended to committing the murder of any person. If any particular member exceeded the common object of the unlawful assembly, he alone can be held responsible for the same and not other members who did not share the intent and object of the person exceeding it. It is argued that the trial court was not justified in framing charge under Section 302 IPC and in the alternative under Section 302/149 IPC against all the accused persons and they were misled and prejudiced on this account. The incident is of 08.11.1982, while the deceased was admitted in the hospital on 10.11.1982 presumably because the injury was not serious at that time and due to no proper treatment was provided for 2 days, or due to complications having developed during this period, Sultan died on 16.11.1982, as such the accused persons cannot be held liable for the offence of murder specially when Dr. Mathur has deposed that Sultan, if operated earlier, could have been saved. The circumstances of the case and the facts that the injured was admitted in the hospital after 2 days and died there after 8 days of the incidents, goes to suggest that there was no intention or common object to commit the offence of murder. 8. It is argued that the prosecution witnesses are interested and inimical witnesses, and they have clearly made a wrong statement about not seen the injuries of the accused persons and have not explained these injuries as such the testimony of these persons is not reliable for the purpose of conviction. There are material omissions and contradictions in the evidence of the eye witnesses so their evidence is not trustworthy. There are material omissions and contradictions in the evidence of the eye witnesses so their evidence is not trustworthy. It is argued that 'lathi' is not a lethal weapon and generally the villagers carry it while going to and coming from their fields and as such simply having lathis at the time of incident cannot prove preparation for attack and since the accused party has also suffered many lathi injuries, the complainant party should be held to have gone to their field duly armed with weapons like lathis. The offence under Section 302 IPC or 302/149 IPC, is not made out against the appellant and if any other offence is made out against them, they being the first offenders and in view of their young age and the circumstances of the case the benefit of probation should have been extended to them. 9. Learned Public Prosecutor opposed the appeals and supported the impugned judgment. Learned Public Prosecutor referred to findings recorded by the trial court and statements of prosecution witnesses, which we shall deal with at appropriate place. 10. We have given our anxious consideration to rival submissions and carefully examined the material on record. 11. At this stage, it may be noted that main allegation of causing two fatal injuries, as per the dying declaration of the deceased Sultan as also according to the testimony of eye witnesses produced by the prosecution namely Hanuman son of Mahadev (P.W.5); Ramu (P.W.6); Gopal (P.W.7); Hanuman Sahai son of Bharatram (P.W.8) and Phool Chand (P.W.10) is against Rampratap and Sadhu Ram. While Rampratap died during currency of trial, accused-appellant no. 1, Saduram in Appeal No. 424/1986 died on 08.01.2003 and appeal qua him was taken to have abated and it survives only in respect of accused-appellant no. 2, Jagdish. Therefore, this Court has to consider appeals of the three accused namely Jagdish, Bahadur and Kailash. 12. Apart from testimony of prosecution witnesses, learned trial court has heavily relied on dying declaration of the deceased Sultan (Exhibit P-14). Therein, Sultan stated that he was resident of village Dharsa and cultivating land of not only his share but also of the share of Ramnath, Bhagirath and Parta for last 30 years. In lieu thereof, he had given his share of land in village Ratanpura to them, which is being looked after by Ramnath, Bhagirath and Parta, who have been cultivating this land. In lieu thereof, he had given his share of land in village Ratanpura to them, which is being looked after by Ramnath, Bhagirath and Parta, who have been cultivating this land. Besides, land was allotted to Parta in Rama of Village Guda through patta by Government and therefore, he migrated to that village and started residing there. Parta has given his share in the land at Ratanpura to his brothers. About 5-6 days ago, Parta and his son Sadhu came to village Dharsa with bullock. He stayed with his elder son Jagdish. On 08.11.1982 at about 10.00 A.M. when his nephew Gopal was ploughing land of the share of Ramnath and Bhagirath with the help of bullock, he along with his brother Ramu was standing there. Parta son of Gangaram; Jagdish, Sadhu son of Parta, Kailash son of Rameshwar, Bahadur son of Bhagwan Sahai, all by caste Meena came there armed with lathies and fawra with bullock and forcibly started ploughing the said land. Thereupon, he (injured Sultan) forbade them from doing so. Parta Meena inflicted a lathi blow near his left eye which was followed by another lathi blow on his head by Sadhu Meena. His brother Ramu came forward to save him, who too was beaten. When Gopal came to save them, he was also beaten by Kailash, Bahadur, Jagdish and Parta by lathies and fawra. Thereafter, he became unconscious and regained the consciousness after 1 1 /2 hours. Many neighbourers had witnessed the incident. He also stated that lot of blood loss took place and therefore he was not sure whether he would survive or not because he was already ill. This dying declaration of the deceased has been fully corroborated in the manner he had so stated by Ramu (P.W.6); Gopal (P.W.7), who both are injured eye witnesses apart from Hanuman son of Mahadev (P.W.5) and Hanuman Sahai son of Bharatram (P.W.8). Learned trial court has made detailed analysis of their evidence. 13. We may at this stage also refer to plea of right of private defence set up by the accused with reference to record that half of the disputed land was of their share and they were trying to cultivate on the land of their share and not on the land of the complainant party. 13. We may at this stage also refer to plea of right of private defence set up by the accused with reference to record that half of the disputed land was of their share and they were trying to cultivate on the land of their share and not on the land of the complainant party. Learned trial court has however negated that plea by detailed analysis of the evidence by referring to statement of Ramu (P.W.6) who has corroborated what has been asserted by deceased in dying declaration that they had equal half share in the land situated in village Ratanpura and village Charsa. Since Ram Nath, Bhagirath and Parta were extricated by the villagers they migrated initially to village Bagas where they stayed for 2-3 years and thereafter to Ratanpura. This happened 30 years ago. Since then, the entire land of dispute was being cultivated by the complainant party. 14. Gopal (P.W.7) also stated that Ratanpura was situated about distance of one mile from village Charsa. Their ancestors had land in both the villages and they (complainant party) have half share in both the lands and remaining half share of land was of Rampratap and his brother. Complainant were cultivating entire land of village Charsa whereas entire land of Ratanpura village was being cultivated by the accused party. Hanuman son of Mahadev (P.W.5) and Hanuman Sahai son of Bharatram (P.W.8) have also made similar statement. The prosecution has produced on record receipts of the payment of land revenue (Exhibit P-19 to Exhibit P-35) which has categorically proved that ever since the land revenue of the entire disputed land was being paid by Hanuman, Sultan and Ramu since 1965. Besides, khasra girdawari of samvat year 2012 to 2020 (Exhibit P-38) and khasra girdawari of samvat year 2032-2035 (Exhibit P-39) have also been produced. Therein name of Hanuman, Sultan and Ramu has been entered as khatedar/gair khatedar. Reference has been made to statement of Ajeet Singh (D.W.3), Tehsildarof the Revenue Tehsil, Amer concerned who has admitted possession of the complainant party in the entire disputed land of khasra no. 460. He stated that on inspection of the land, he found possession of Ramu and on that basis he made entry in the record in sikkami register. He also admitted that as per relevant law, whoever is found in possession of disputed land in samvat year 2012 would acquire khatedari rights. 15. 460. He stated that on inspection of the land, he found possession of Ramu and on that basis he made entry in the record in sikkami register. He also admitted that as per relevant law, whoever is found in possession of disputed land in samvat year 2012 would acquire khatedari rights. 15. Even though Phool Chand (P.W. 10) has turned hostile but he has stated that Sultan was cultivating entire disputed land for last 15-16 years. 16. We do not find any error in such a weighty reasoning recorded by the learned trial court insofar as factum of possession of complainant party and negation of plea of right of private defence is concerned. However, analysis of the evidence that has been made by the learned trial court on the basis of statements of eye witnesses clearly shows that parties were related to each other by common ancestors except two appellants namely Kailash and Bahadur, who are said to be distantly related to complainant party. They however appear to be neighbourers of disputed agricultural field. Learned trial court, however, did not uphold their argument that unless all other three accused were injured and they were not get injury and they did not have dispute with regard to land in question with complainant party and they were falsely implicated and that some of the witnesses stated that they were mere spectators and did not participate in the incident. 17. In view of categorical and consistent allegation made by eye witnesses as also by the deceased in dying declaration, we do not find any justification to disturb the findings recorded by the learned trial court. However, the manner in which the incident has taken place and the nature of weapons i.e. lathies that has been recovered at the instance of the accused-appellants shows that the incident took place in a sudden fight at a spur of moment when complainant party was cultivating part of the land and accused party also attempted to plough the same land. Unlawful assembly, if it was at all there, it was only for giving severe beating/threshing to the complainant party to eject them from the disputed land. Unlawful assembly, if it was at all there, it was only for giving severe beating/threshing to the complainant party to eject them from the disputed land. However, two of the accused, who are no longer alive namely Rampratap and Sadhu Ram exceeded the common object of unlawfully assembly and hit the deceased on the head, therefore, only they could have been held responsible for causing death of Sultan. Such intention therefore cannot be attributed to other three accused namely Kailash, Bahadur and Jagdish. In so far as their conviction and sentence for offence under Sections 147, 447 and 323/149 IPC cannot be faulted with. 18. In the result, present appeals are partly allowed. Conviction and sentence of the accused-appellant namely Kailash, Bahadur and Jagdish for offence under Section 302/149 IPC is set aside. Conviction of the aforesaid accused-appellants for offences under Sections 323 read with Section 149, 447, 147 IPC is maintained, however, considering that accused-appellants Kailash, Bahadur and Jagdish have served out sentence of 3 months 27 days; 1 month and 2 months respectively, they are sentenced to the period of imprisonment already undergone by them. 19. However, fine imposed upon the aforesaid accused-appellants for offence under Section 147 IPC is enhanced to Rs. 15,000/- each, in default of payment of fine, each of them will undergo two months' rigorous imprisonment. Fine imposed upon the aforesaid accused-appellants for offence under Section 447 IPC is enhanced to Rs. 500/- each, in default of payment of fine, each of them will undergo two months' rigorous imprisonment. Fine of Rs. 1,000/each is imposed upon the aforesaid accused-appellants for offence under Section 323/149 IPC, in default of payment of fine, each of them will undergo two months' rigorous imprisonment. Amount of fine so deposited shall be paid to the widow of the deceased, if alive, or to his sons and daughters in equal proportion. We also find from the order of sentence passed by the learned trial court that it has convicted the aforesaid accused-appellants for offence under Section 323 IPC simplicitor and sentenced each of them to rigorous imprisonment of three months with fine of Rs. 100/each, in default of payment of fine to further undergo rigorous imprisonment of 15 days but at the same time, they have also been convicted for offence under Section 323 read with Section 149 IPC. 100/each, in default of payment of fine to further undergo rigorous imprisonment of 15 days but at the same time, they have also been convicted for offence under Section 323 read with Section 149 IPC. It therefore appears that they could not have been convicted and sentenced twice for the same offence and therefore their conviction and sentence for offence under Section 323 IPC simplicitor is set aside.