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2018 DIGILAW 1060 (RAJ)

Banwari Lal S/o Rekha Ram v. State of Rajasthan

2018-04-24

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT : MOHAMMAD RAFIQ, J. 1. These two appeals though arise out of the same first information report, but are directed against two separate judgment as the accused-appellants were subjected to different trials. While appellant Banwari Lal in appeal no.184/1989 has been convicted vide judgment dated 22.5.1989 passed by the Additional Sessions Judge, Sikar for offence under Section 302/34 IPC and sentenced to life imprisonment with a fine of Rs.1,000, in default whereof to further undergo rigorous imprisonment for six months and for offence u/s.323 IPC sentenced to one month’s rigorous imprisonment. Both the sentences were ordered to run concurrently. 2. At the outset, it may be noted that appellant no.2 Rekha Ram in appeal no.244/1983 has died. Copy of the report of the SHO Police Station Ramgarh, District Sikar dated 9.3.2010 along with death certificate in this respect has been placed on record. Therefore, as far as appeal filed by Rekha Ram is concerned, the same stands abated qua him and is accordingly dismissed. The appeal no.244/1983 now survives only in respect of appellant no.1-Gopi Ram and appellant no.3-Bhanwara. 3. The facts of the case are that accused Rekha Ram had five sons. The eldest of his son, Rameshwar Lal, is the deceased in the present case, in which he himself is an accused along with his sons Gopi and Banwari Lal. His other two sons are not accused in this case. Rameshwar Lal was staying separate from the family for last twenty years. His grievance was that Rekha Ram had not given any share of the ancestral property, especially the agriculture land to him and that he used to cultivate the agriculture land of his uncle Narayan. Ten years before the incident, a quarrel had taken place between Rameshwar Lal and his brother Tola Ram in which wife of Tola Ram was killed at the hands of Rameshwar, where for he was convicted for offence of murder under Section 302 IPC by the trial court, but in the High Court, his conviction was converted from 302 to 304 Part-II and sentenced was reduced to seven years. After completion of the sentence of seven years, he came out of the jail. After completion of the sentence of seven years, he came out of the jail. The case of the prosecution is that the land alleged to be of Narayan, which Rameshwar Lal used to cultivate, was being cultivated by the accused-appellants throughout the period he (Ramehswar Lal) was in jail, whereas the case of the defence is that the accused appellants taking advantage of this situation forcibly took possession of this land. FIR in the present case has been registered on the basis of parcha bayan of Heera Lal S/o Rameshwar aged 19 years, in which he has stated that his deceased father Rameshwar before he went to jail used to plough/cultivate the land of Narayan, elder brother of Rekha Ram, but during the period he remained in jail, his grandfather Rekha Ram and his uncles forcibly took possession of the land and started cultivating the same. His father came back from jail three years back. Last year, he had cultivated the land in dispute. His grandfather Rekha Ram and uncle uprooted the crop. His father then purchased the land from Narayan. On the day of incident, his father along with informant- Heera Lal and elder son Durga went to the agriculture land in dispute. When they entered the land, they saw that the accused Rekha Ram, Gopi Ram, Banwari Lal and Bhanwara were present there. Gopi was ploughing the land with camel and Banwari with a buffalo and Rekha Ram and Bhanwara were present there. Kesar and Mankari, daughters of Tola Ram were also present there. His father (Rameshwar) forbade these persons from doing so. Thereupon Rekha Ram, Gopi, Banwari Lal and Bhanwara came rushing towards them. Gopi had a jelly, Banwari had a ‘lathi’ and Rekha and Bhanwara had ‘kulharis’. All of them started beating his father. Banwari and Bhanwara started beating him too. Rekha Ram and Gopi also subjected him (informant) to beating, as a result of which, he fell on the ground. Thereafter, Rekha Ram and Gopi also started beating his father Rameshwar. His younger brother Durga ran away from there out of fear for his life. His father (Rameshwar) became unconscious. Then these accused ran away from there. After about half an hour, he called Jeevan Mal, who was passing by. He on his buffalo cart took the deceased to Government Hospital Ramgarh where he was declared brought dead. His younger brother Durga ran away from there out of fear for his life. His father (Rameshwar) became unconscious. Then these accused ran away from there. After about half an hour, he called Jeevan Mal, who was passing by. He on his buffalo cart took the deceased to Government Hospital Ramgarh where he was declared brought dead. On the basis of aforesaid parcha bayan, FIR No.18/82 was registered for offence under Section 302 IPC and investigation commenced. Charge sheet was filed against the accused-appellants Gopi Ram, Rekha Ram and Bhanwara. Since the accused Banwari Lal was then absconding, the proceedings against him under Section 299 Cr.P.C. were initiated and subsequently when he was arrested, he too was sent to stand trial. The prosecution produced 8 witnesses and exhibited 20 documents (in appeal no.244/1983). Hence these appeals. 4. Shri Biri Singh, learned senior counsel for the accused-appellants Gopi Ram, Rekha Ram and Bhanwara and Ms. Gayatri Rathore, learned counsel for the accused-appellant Banwari Lal have argued that the learned trial court committed serious error in not appreciating that the prosecution has not come out with true version about the origin of the fight and the manner in which the incident took place. The learned trial court itself has found that the place of occurrence was in possession of the accused persons at the time of the incident and the members of the complainant party had gone there. After the aforesaid finding, the learned trial court committed serious error in invoking Section 34 IPC for convicting the appellants. The learned trial court failed to appreciate that the accused persons have come with alternative version about the origin of the fight and the manner in which the incident took place. The defence version of the accused is probablised by the fact that the agricultural land where the incident took place was in possession of the accused persons and that the co-accused Rekha Ram had sustained injuries at the hands of the complainant party. 5. Learned counsel submitted that the learned trial court committed serious error of law and fact in holding that the prosecution was not bound to explain the injuries of Rekha Ram, as the said injuries were simple in nature. 5. Learned counsel submitted that the learned trial court committed serious error of law and fact in holding that the prosecution was not bound to explain the injuries of Rekha Ram, as the said injuries were simple in nature. Even if the injuries were simple, the fact is that the incident has taken place in the field of the accused where the members of the complainant party went and committed trespass, then it cannot be said that the assembly of the accused was with common intention or with common object to commit murder. The assembly of the accused persons cannot be termed to be unlawful by any stretch of imagination and the accused cannot be convicted with the aid of Section 34 IPC. It is further submitted that there is no specific allegation that the accused appellant had caused particular injury. There is a general allegation against the accused appellants as such it cannot be said that he exceeded the right of private defence of person and property even if his presence is accepted in the field at the time of the occurrence. 6. It is contended that the learned trial court failed to appreciate that the statement of the prosecution witnesses Jeewan (PW4) and Amin (PW3) have been recorded after inordinate delay and no explanation has been given by the prosecution in this connection. It is noteworthy that the incident had taken place on 27.04.1982 but the statements of these witnesses were recorded on 13.06.1982 i.e. after more than 1-1/2 months. Even the testimony of Jeewan (PW4) and Amin (PW3) suffers from serious infirmities, material contradictions and inconsistencies including the fact that these witnesses have made improvements in their statement in the trial court. Learned counsel submitted that the trial court further failed to place reliance on the testimony of Heeralal (PW1), who is highly interested in the prosecution and his statement suffers from serious infirmities including material contradictions and inconsistencies. 7. It is contended that that the statement of the prosecution witnesses has been further falsified by the medical evidence. As per the prosecution case, two of the co-accused namely Rekha and Bhanwara were having ‘kulhari’ and they inflicted injuries from them. Not a single injury to the deceased Rameshwar or injured Heeralal is by a sharp weapon. 7. It is contended that that the statement of the prosecution witnesses has been further falsified by the medical evidence. As per the prosecution case, two of the co-accused namely Rekha and Bhanwara were having ‘kulhari’ and they inflicted injuries from them. Not a single injury to the deceased Rameshwar or injured Heeralal is by a sharp weapon. The learned trial court committed serious error in brushing aside this argument on the ground that the witnesses had not stated that the aforesaid accused used the sharp side of ‘kulhari’ while inflicting the injuries and this possibility cannot be ruled out that they might have used the reverse side of the ‘kulhari’. This approach of the learned trial court is contrary to the criminal jurisprudence regarding appreciation of evidence of the prosecution witnesses. When an accused is said to have caused injury with a particular weapon, then it is presumed that he used that weapon, as such, and unless and until witness gives any statement otherwise of having used by the accused the said weapon from the reverse side, the finding cannot be recorded on mere surmises and conjectures, that the weapon have been used by the reverse side by the accused. It is further contended that the witness Heeralal (PW1) is the son of the deceased Rameshwar. Similarly the witness Durga (PW2) is the son of Rameshwar deceased. Thus both the witnesses are highly interested in the prosecution. The other witnesses are also enemical to the accused persons. No independent person has been examined by the prosecution. 8. Alternative argument that has been made by learned counsel for the appellants is that in the facts of the case, guilt of the accused would fall either in exception (2) to Section 300 of IPC since they acted in exercise of right of private defence of person and property, as they were at that time in possession of the disputed agriculture land and were protected by an injunction order in their favour and against the deceased, who were restrained from interfering with their peaceful possession or their case would fall in exception (4) because the deceased was put to death as he himself started quarreling with the accused in a sudden fight in a heat of passion upon a sudden quarrel when the offender having taken undue advantage or acted in a cruel or unusual manner. All other injuries were simple or on non vital part except injury no.1, which proved fatal as per the opinion of the medical board conducting autopsy on the deceased, their guilt thus would come under culpable homicide not amounting to murder punishable under Section 304 Part-II of IPC. 9. Smt. Sonia Shandilya, learned Public Prosecutor opposed the appeals and supported the impugned judgment. She 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 appeals be therefore dismissed. 10. We have given our anxious consideration to the rival submissions and perused the material on record. 11. Heera Lal, who was also eye witness to the incident, is the star witness of the prosecution. He has appeared as PW1 in appeal no.244/1983. He has substantially supported the version given by him in the parcha bayan. In the first trial, he has stated that accused Bhanwari had a ‘lathi’, accused-appellant Bhanwra and Rekha Ram had a ‘kulhari’ and accused Gopi Ram had a ‘jelly’. Initially Banwari and Bhanwra subjected his father Rameshwar to beating. At that time, Gopi and Rekha Ram came leading towards him (this witness) and gave beating to him. It may be at this stage noted that apart from deceased Rameshwar, Heeralal (PW1) has also received injuries. His MLR is Ex.P6, according to which he sustained six simple injuries, all of which were contusion wounds. His grandfather Rekha Ram has also sustained three contusion wounds of simple nature, the MLR of which is Ex.D2. Thereafter, coming back to the statement of Heeralal (PW1), this witness then stated that after beating him, Rekha Ram and Gopi also started beating his father Rameshwar. Durga in the meantime ran away from there due to fear. This witness was subjected to intense cross examination wherein he has admitted that during the period of seven years of incarceration of his father, Rekharam, Gopi, Bhanwara and Banwari and their family members were cultivating the disputed land of khasra no.45 as they forcibly occupied it. In further cross examination, he has stated that his father came out from jail three years ago. For two years, the accused party continued to occupy the land in dispute. His father cultivated this land the previous year, the crop of which was uprooted by the accused-party. In further cross examination, he has stated that his father came out from jail three years ago. For two years, the accused party continued to occupy the land in dispute. His father cultivated this land the previous year, the crop of which was uprooted by the accused-party. Obviously, the possession of the land was with the accused-party and they were also having an injunction order in their favour and restraint order against the deceased. In these circumstances, the accused were ploughing the agriculture field after rains, therefore, they could not be said to be trespasser in the land and obviously they cannot be held to be aggressors of the incident. 12. Durga (PW2), the younger son of the deceased aged 16 years has also been produced as eye witness. He too has stated that Gopi had a ‘jelly’, Banwari had a ‘lathi’, Rekha and Bhanwara had one ‘kulhari’ each. He stated that his father along with Heera Lal and he himself went to the agriculture field after rains and there they noticed that Gopi and Banwari were ploughing the land and Rekharam and Bhanwara were cutting the plants. His father forbade them from doing so and thereupon the quarrel took place. He due to fear, ran away from there. Even in cross examination, he stated that his father asked the accused to get out of the disputed agriculture land, but they refused to obey and thereupon the incident started. 13. The dispute in the present case occurred when Rameshwar Lal tried to forcibly take possession of the subject land. Rameshwar Lal claimed that he cultivated the land in 1981, crop of was uprooted by the accused persons. In 1981 itself Narayan executed a sale deed of the said land of khasra no.45 in favour of Rameshwar Lal. This infuriated the accused and they objected to the same. In fact, the revenue litigation also ensued between the parties. Rekha Ram and Bhagwana filed a revenue suit for declaration and the partition under Section 212 of the Rajasthan Tenancy Act in 1981 itself in the Court of Assistant Collector and Executive Magistrate, Fatehpur. Copy of this order dated 25.6.1981 has been placed on record as defence exhibit-D5. In fact, the revenue litigation also ensued between the parties. Rekha Ram and Bhagwana filed a revenue suit for declaration and the partition under Section 212 of the Rajasthan Tenancy Act in 1981 itself in the Court of Assistant Collector and Executive Magistrate, Fatehpur. Copy of this order dated 25.6.1981 has been placed on record as defence exhibit-D5. The said Court by issue of temporary injunction restrained Narayan and through him, also Rameshwar from interfering with the possession of the disputed land of khasra no.45 measuring 18 bighas and 5 bighas of the plaintiff Rekha Ram and others and to maintain status quo. The defence has also produced on record copy of the order dated 28.7.1981 (Ex.D6) passed by SDO, Fatehpur directing Tehsildar to take steps for observation of leaps and bounds in terms of the primary decree. Copy of the final decree dated 16.4.1982 is placed on record at Ex.D8. Still when Patwari had entered the name of Rameshwar on the basis of the sale deed and opened mutation no.187, on application of the plaintiff i.e. the accused-party herein, SDO by order dated 7.9.1982 directed him to act in conformity with the judgment and decree as no appeal there against was filed by defendant Narayan or even by Rameshwar. It was in this situation that when the accused-appellants were ploughing the land in dispute around 9.00 am following the good rains on 27.4.1982. Rameshwar Lal tried to prevent them and a quarrel took place in which Rameshwar Lal has died. 14. Amin (PW3), the neighbour of the disputed agriculture field has stated that it was Rameshwar, who used to always cultivate the disputed land. On the fateful day when he saw Durga running from the disputed land, he enquired from him whereupon he told that his father and brother were being beaten by the accused. He then went to their agriculture field and saw that accused Bhanwara, Rekha and Gopi were beating Rameshwar and Heera by ‘lathis’ and ‘jelly’. This statement apart from the fact is not very clear, but also cannot be relied much because he in cross examination has admitted that police recorded his statement one and a half month after the incident. He then went to their agriculture field and saw that accused Bhanwara, Rekha and Gopi were beating Rameshwar and Heera by ‘lathis’ and ‘jelly’. This statement apart from the fact is not very clear, but also cannot be relied much because he in cross examination has admitted that police recorded his statement one and a half month after the incident. Jeevan (PW4), of course, who took the deceased in his buffalo cart to the hospital at Ramgarh, has stated that on enquiry Heeralal told him that Rekha, Gopi, Bhanwara and Banwari had subjected them to beating, but in any case, Heera Lal himself has appeared as witness and, therefore, not much significance can be given to his statement either. 15. Adverting now to the medical evidence, we find that Dr. Ashok Sharma (PW6) has proved the postmortem report (Ex.P3) of the deceased Rameshwar, according to which he sustained the following injuries : “1. one irregular shaped contused wound on parietooccipital region on right as well as left side. 2. contused wound 2.5” x 2.5” x bone deep over the right parieto-temporal region lying obliquely over post part. 3. contused wound 1.2” x 0.5” x bone deep over occipital region central position lying obliquely. 4. contused wound on right fore arm, lower third with diffused swelling, 0.6” x 0.2” x bone deep with fracture of both bones of forearm. 5. contused wound 0.8” x 0.2” x bone deep over right forearm, lower third, laterally. 6. contused wound 1.6” x 0.2” x 0.2” over left forearm, middle third laterally with fracture of both bones. 7. contused wound 0.6” x 0.6” x 0.2” over left leg anteriorly middle 1/3rd. 8. contused wound 1” x 0.2” x bond-deep over left leg, lower third, anterior, initially with bone pieces coming out. 9. contused wound 1” x 0.2” x 0.2”, middle 1/3rd anterior-medially on right leg. Under the wound no.1, there was a visible fracture line over occipital region (bone), length 1.6” lying obliquely. There was a big sub-dural haematoma over parieto – occipital region below external injury no.1. The radius was about 1.5”.” 16. The cause of death given in the postmortem report of the deceased has been proved by him which reads as under: “All the above injuries were ante-mortem. The above injuries could have been inflicted with a lathi or an instrument with a blunt edge. The radius was about 1.5”.” 16. The cause of death given in the postmortem report of the deceased has been proved by him which reads as under: “All the above injuries were ante-mortem. The above injuries could have been inflicted with a lathi or an instrument with a blunt edge. The cause of death was shock due to sub dural haematoma. The above injury no.1 was sufficient in the ordinary course of nature to cause death.” 17. Dr. Ashok Sharma (PW6) has stated that in his opinion injury nos.1,4,6 and 8 were grievous and other injuries of the deceased were simple. All these injuries were opined to be contusions and according to his statement, these injuries could have been caused by weapon having blunt margins. Similarly, Dr. Ashok Sharma has also proved, the injuries of Heera Lal, who too sustained six injuries, all of which were contusions and were opined to be simple in nature and caused by blunt weapon. Moreover, injuries of Rekha Ram have also been proved by Dr. Ashok Sharma, who too sustained three contusions, all were simple by blunt weapon. 18. We have also examined statement of Heera Lal in subsequent trial of Banwari Lal where he has appeared as PW2 and Durga Lal, who has appeared as PW7, statement of Jeevan (PW1) and also of Dr. Ashok Sharma (PW6). All these witnesses in the subsequent trial have given almost the same statement with no substantial variations. 19. When we analyse the evidence of prosecution witnesses especially the eye witnesses, we find that none of the injured has sustained injuries by any sharp edged weapon and, therefore, it cannot be said that any of the accused has used ‘kulhari’ to cause injury either to the deceased or injured. The version of Heeralal in his parcha bayan as also in statement u/s.161 Cr.P.C. (Ex.D1) in the trial of Banwari Lal and again in the Court statement is consistent in so far as weapons and role assigned to accused-appellants is concerned that initially Banwari and Bhanwara subjected his father to beating and Gopi Ram and Rekha Ram first subjected this witness to beating and when he fell on the ground, thereafter, they turned towards his father and started beating him. So far as therefore allegation on Bhanwara and Rekha Ram are concerned, who were both attributed the role of causing injuries to deceased by way of ‘kulhari’, is not substantiated because none of them apparently sustained any injury by sharp edged weapon. However, as regards Banwari, the statement of this witness Heera Lal as also his brother Durga is consistent that he had been having a ‘lathi’. Besides, for Gopi also, his statement is consistent that he was wielding ‘jelly’. It may be noted that ‘jelly’ is an agriculture implant used by hand, which is readily available with the farmers in the agriculture fields. It is having pointed horns either with two or four pointed steel borer like object fitting on a ‘lathi’. When it is entered into the body of any person, it would cause stab wound, but at the same time, this can also be used in causing injuries to the victim as a ‘lathi’. In view of number and also nature of injuries, it cannot be said that the accused and the injured were subjected to beating by only one person. There is obviously involvement of more than one person in the incident in causing so large number of injuries to the deceased as also to the injured. At the same time, it appears that deceased also used some force when trying to evict the accused from the disputed land. 20. In so far as the alternate argument made on behalf of accused-appellants, we find that Exception 2 of Section 300 of IPC inter alia provides that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. The claim of the right of private defence of person or property has to satisfy the six conditions enumerated in Section 100 of IPC, which inter alia provides that the right of private defence of the body extends, under the restrictions mentioned in Section 99 of IPC to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated. We are in the present case concerned with the first two of these six conditions: 21. First:- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault. Secondly:-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assaults. But conditions of first and second exception to Section 100 IPC does not available in the present appeal as three injuries sustained by Rekha Ram are simple in nature. Section 102 of IPC provides that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as such apprehension of danged to the body continues. We therefore do not find that conditions of Section 100 and 102 of IPC are satisfied in so far as the claim of right of private defence of person is concerned. However, coming now to whether the right of private defence of property can extend to causing death, Section 103 of IPC provides that such right can extend to causing death under the restrictions mentioned in Section 99 IPC, to the voluntary causing of death or of any other harm to the wrong does, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated in Section 103 IPC, namely; robbery, house-breaking by night, mischief by fire, theft, mischief, or house-trespass, none of which is really attracted in the facts of this case. We therefore hardly find any justification for holding that the accused-appellants despite injunction order in their favour would be justified in causing death of Rameshwar. 22. We therefore hardly find any justification for holding that the accused-appellants despite injunction order in their favour would be justified in causing death of Rameshwar. 22. Having held so, however, we find that there are enough circumstances on record to show that the incident in the present case had taken place in a sudden fight, in a heat of passion upon a sudden quarrel and the fact that all other injuries were either simple or on non-vital part of body and only one injury i.e. injury no.1 was on the parietal occipital region of the deceased, which as per the opinion of the medical board, was opined to be sufficient in the ordinary course of nature to cause death, with no other injury being held responsible for the death of deceased, the accused appellants cannot be held to have taken undue advantage of situation as not only they were not aggressors, but one of them i.e. Rekha Ram also received though simple but three injuries. 23. So far as the accused-appellants Rekha Ram and Bhanwara are concerned, we find that they have been able to make out a case for extending them the benefit of doubt. Even otherwise, Rekha Ram having died his appeal stands abated. Bhanwara Ram in view of the findings recorded by us in the proceding paras hereinabove is held entitled to consequential acquittal. He is on bail, therefore, his bail bonds and sureties are discharged. He need not surrender. However, charges against accused-appellants Banwari Lal and Gopi are held proved to the extent of offence under Section 304/34 Part-II IPC and they are sentenced to rigorous imprisonment of seven years. Their conviction for offence under Section 302/34 IPC is set aside. The impugned judgment is accordingly modified and the appeals are partly allowed. 24. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Bhanwara is 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 appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court. 25. Office to place a copy of this judgment in connected appeal.