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2018 DIGILAW 1693 (RAJ)

Babu Lal S/o. Bishna v. State of Rajasthan

2018-08-09

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal is directed against the judgment and order dated 25.09.1990 passed by the Court of Sessions Judge, Kota (for short ‘the trial court’) whereby the accused-appellant Babu Lal has been convicted for offence under Section 302 read with Section 34 IPC and sentenced to life imprisonment with fine of Rs. 500/-, in default of payment of fine to further undergo three months’ rigorous imprisonment and accused-appellant Kanha @ Kanhiya Lal for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 1,000/-, in default of payment of fine to further undergo six months’ rigorous imprisonment. 2. At the outset, it may be noted that during pendency of this appeal, accused-appellant Babu Lal expired on 25.02.2006 and this Court vide its order dated 22.08.2017 dismissed the appeal qua accused-appellant Babu Lal as having abated. Therefore, present appeal now survives only against accused-appellant Kanha @ Kanhiya Lal. 3. Facts of the case are that informant Radha Kishan Gujar of Village Arna submitted a written report (Exhibit P-2) at Police Station Kanwas stating therein that he had come to the Police Station in connection with the murder of one Hira Lal, who died in a quarrel and there was a possibility of breach of peace in the village. On the basis of aforesaid written report, the police registered FIR No. 21/1989 (Exhibit P-3) for offence under Sections 302/34 IPC and commenced investigation. Upon completion of investigation, the police filed charge sheet against the accused-appellant for the aforementioned offence in the competent Court wherefrom the case was committed to the Court of Sessions, Kota. Charges for offences under Sections 302 and 302 read with Section 34 of the Indian Penal Code were framed against the accused-appellants which they denied and claimed to be tried. The prosecution in support of its case produced six witnesses and exhibited seven documents. Thereafter, the accused-appellants were examined under Section 313 Cr.P.C. wherein they pleaded false implication. In defence, no witness was produced but one document was exhibited. Upon completion of trial, the trail court convicted and sentenced the accused-appellants in the manner indicated above. Hence, this appeal. 4. Mr. Rajesh Choudhary, learned counsel for the accused-appellant argued that the judgment of the trial court is against the norms of Criminal Jurisprudence and is patently illegal and erroneous. Upon completion of trial, the trail court convicted and sentenced the accused-appellants in the manner indicated above. Hence, this appeal. 4. Mr. Rajesh Choudhary, learned counsel for the accused-appellant argued that the judgment of the trial court is against the norms of Criminal Jurisprudence and is patently illegal and erroneous. The trial court has erred in convicting the appellant Kanha @ Kanhiya under Section 302 IPC. The trial court has wrongly framed the points of determination. The case of the prosecution according to charge sheet was that the appellants inflicted fist blows on the person of deceased Heera Lal by catching hold of his neck and after falling down on ‘dhora’. He died after some time. The only eye witness, Parma Nand (P.W.4) has supported the case of the prosecution by making improvements in his statement. He has completely changed the version before the trial court. The learned trial court has misread the statement of Parma Nand (P.W.4). In para no. 12 of the judgment, the learned trial court observed that Parma Nand has substantially improved his statement and there is a difference in “pressing the neck and caught hold of neck” and on the basis of this observation the learned trial court held that the statement of Parma Nand cannot be said to be unreliable. It is submitted that as per the pronouncements reported in 1986 Cr.L.R. (Raj.) 778 and 1979 RLR (Raj), witness Parma Nand was untrustworthy and the appellants could not have been convicted on the basis of his improved statement. The learned trial court though referred to aforesaid judgments in its judgment but has not cared to distinguish these binding pronouncements. The learned trial court has not cared to discuss that the witness Parma Nand (P.W.4) was a chance witness as he was related to deceased Heera Lal. His presence on the place of occurrence is doubtful. His statement goes to show that Parma Nand reached at the place of occurrence at about 4 O’clock in the evening and there he took some time in taking bath and according to him he had seen the occurrence afterwards, whereas, according to prosecution Heera Lal had died before 3:00 PM and according the statement of Radha Kishan (P.W.2), he received the information of the murder of Heera Lal at 3:00 PM. 5. 5. It is argued that it was incumbent upon the learned trial court to have carefully examined the testimony of Parma Nand (P.W.4) because he was an interested and chance witness and his testimony has been shattered in the cross-examination but the learned trial court has relied upon the testimony of Parma Nand on the ground that medical evidence supported him. A strange logic has been given in para no. 15 of the impugned judgment by the learned trial court that the evidence of Parma Nand (P.W.4) is trustworthy as he has stated that the murder of Heera Lal was committed by Kanha by pressing his neck and according to postmortem report he has died on account of asphyxia. In para no. 16 of the impugned judgment the learned trial court observed that Mangi Lal (P.W.3) has specifically stated that he had not seen the appellants killing Heera Lal. Mangi Lal had been declared hostile by the prosecution but the learned trial court has relied on his testimony after misreading the same. The learned trial court has also discussed testimony of Parma Nand (P.W.4) in para no. 10 and 11 of the impugned judgment. The learned trial court has failed to consider an important aspect of the case that in the statement under Section 161 Cr.P.C., Parma Nand (P.W.4) had implicated both the appellants by stating that both caused fist blows on the person of deceased and both pushed him by caught hold of his neck. But in the statement before the trial court he has stated that appellant Babu Lal was only standing and appellant Kanha pressed the neck of the deceased. 6. It is submitted that if appellant Babu Lal was only standing and did not do any overt act, he could not have been convicted for offence under Section 302 read with Section 34 IPC and conviction of Babu Lal is illegal, as only eye witnesses Parma Nand has not said anything about the overt act of appellant Babu Lal because the appellants were not at the mercy of witness Parma Nand and he was not free to implicate anybody by changing the version. Even assuming, for the sake of arguments, that appellant Kanha caught hold of Heera Lal’s neck and pressed him even then this circumstance was not sufficient to implicate him in connection with the murder of Heera Lal. Even assuming, for the sake of arguments, that appellant Kanha caught hold of Heera Lal’s neck and pressed him even then this circumstance was not sufficient to implicate him in connection with the murder of Heera Lal. But Parma Nand (P.W.4) does not say that the neck of Heera Lal was continuously pressed by Kanha. There is a difference between catching hold of neck and pressing the neck and according to the testimony of Dr. O.P. Gaur (P.W.1) deceased Heera Lal could not have died in the manner stated by Parma Nand (P.W.4). But the learned trial court has not properly appreciated the evidence of Dr. O.P. Gaur. 7. Learned counsel argued that the learned trial court has also misread the observation made in Modi’s Medical Jurisprudence (16th End.) at page 163 which provides that If the fingers are used (throttling) marks of pressure by the thumb and fingers are usually one either side of the windpipe. The thumb mark is ordinarily higher and wider on one side of the front of the neck, and the finger marks are situated on its other side obliquely downwards and outwards, and one below the other, but are sometimes found clustered together, so that they cannot be distinguished separately. These marks look like soft, red bruises, if examined soon after death, but they look brown, dry and parchment like sometimes after death. The position of these marks may definitely indicate whether the left or right hand was user, as also the size of the hand also whether the person was standing in front or behind the victim. Crescent marks produced by the finger nails are occasionally present, if the finger tips are pressed deeply into the soft tissues of the neck. When both hands are used to grasp and compress the throat, the thumb mark of one hand and the finger marks of the other hand are usually found on either side of the throat. Sometimes, both thumb marks are found on one side and several finger marks on the opposite side. If the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck, as well as on its back. Sometimes, both thumb marks are found on one side and several finger marks on the opposite side. If the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck, as well as on its back. Besides these marks, there may be abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any other part of the body, if there has been a struggle, similarly, fractures of the ribs and injuries to the thoracic and abdominal organs may be present, if the assailant kneels on the chest or abdomen of his victim while pressing his throat. 8. Learned counsel argued that the learned trial court in para no. 5 of the impugned judgment attempted to interpret the word ‘usually’, and observed by making one step further of Modi’s Jurisprudence, observing that it is not necessary that in all cases the injuries must be found on the neck. A reference of Medical Jurisprudence has been made that in some cases the mark in the neck may not be present at all, or may be very slight, if the ligature used in soft and yielding and if it is removed soon after death. But this in not applicable in the instant case. In the present case before the trial court, Dr. O.P. Gaur (P.W.1) has categorically stated that the neck of the deceased was pressed for 5 to 10 minutes. Under such circumstances the injuries ought to be there on the neck of the deceased. Moreover, Parma Nand (P.W.4) has stated in his cross-examination that he has seen the marks of finger nails on the neck of Heera Lal. This contradiction is very serious. Either Parma Nand is lier or postmortem report is not correct, which shows that there was no mark of injury on the neck of the deceased. Under such circumstances the benefit of doubt ought to have been given to the appellants and as such the judgment of the learned trial court is against the record of the case. Either Parma Nand is lier or postmortem report is not correct, which shows that there was no mark of injury on the neck of the deceased. Under such circumstances the benefit of doubt ought to have been given to the appellants and as such the judgment of the learned trial court is against the record of the case. The trial court has also ignored an important aspect of the matter that in the written report, Modu Lal, Sarpanch has not named the appellants and while recording the FIR it was not necessary for the SHO to add oral statement of Radha Kishan but the SHO intentionally recorded the oral statement with the FIR in order to include the names of the appellants. It is also a strange fact that when appellant Babu Lal has been acquitted under Section 302 IPC how he could be convicted under Section 302/34 IPC and when appellant Kanha was acquitted under Section 302/34 IPC how he could be convicted under Section 302 IPC when the charges were so framed that both the accused persons with the common intention committed the murder of deceased Heera Lal. 9. Contention of learned counsel for the accused-appellants is that the accused-appellants have been falsely implicated inasmuch as not a single injury was sustained by the deceased as per the post mortem report (Exhibit P-1). Reference is made to statement of Dr. O.P. Gaur (P.W.1) who has proved post mortem report (Exhibit P-1). In column 5 of the post mortem report it is mentioned that there was swelling all over front of neck but there was no bruise, abrasion or laceration. It is argued that cause of death opined in the post mortem report was asphyxia resulting from blockage of air passage. Learned counsel argued that when statements of two eye witnesses namely Mangi Lal (P.W.3) and Parmanand (P.W.4) are conjointly read, it becomes clear that a fight took place between the deceased Heera Lal on one hand and Kanha and Babu Lal on the other hand in which the accused are alleged to have given beating to Heera Lal by fists one of which incidentally fell on the neck of the deceased resulting in sudden blockage of air passage. Learned counsel submitted that fist was not so forceful that it could either cause any external injury which is evident from the fact that there was no fracture of trachea. Learned counsel submitted that fist was not so forceful that it could either cause any external injury which is evident from the fact that there was no fracture of trachea. Mangilal (P.W.3) has merely shown presence of Kanha and Babu at the place where Heera Lal was found lying dead but Parmanand (P.W.4) has however exaggerated by saying that Kanha and Babu both strangulated the deceased Heera Lal. When he was confronted with his police statement (Exhibit D-1) wherein he has stated that Kanha and Babu started beating Heera Lal with fists and kicks and he went rushing to save him then Babu and Kanha pushed Heera Lal from his neck as a result of which he fell on the ground, Parmanand failed to give any explanation of this discrepancy. 10. Learned counsel alternatively submitted that case of the present appellant Kanha @ Kanhiya Lal does not travel beyond Section 304 Part II IPC as incident in the present case had taken place all of sudden at spur of moment and the accused cannot be held to have taken any undue advantage which is evident from the fact that there was not one external injury on the body of the deceased. Learned counsel in support of his argument relied upon the judgment of the Supreme Court in Uday Singh Vs. State of U.P., (2002) 7 SCC 79 . 11. Mr. Aladeen Khan, learned Public Prosecutor opposed the appeal. 12. We have given our anxious consideration to rival submissions and perused the material on record. 13. First information report in the present case has been registered on the basis of written report (Exhibit P-2)submitted by Modulal, Sarpanch of the Gram Panchayat, who sent the same to the police station through Radha Kishan (P.W.2). In the written report it was mentioned that Radha Kisha was deputed by the Sarpanch to go to the police station, who was near relative of Heera Lal, who had died in an inter-se fight and that there was an apprehension of breach of peace and tranquility of the area and therefore, police jabta should be send and investigation into the murder of Heera Lal be conducted by lodging regular first information report. The police has drawn the proceedings on the aforesaid written report on the basis of oral version given by Radha Kishan (P.W.2). The police has drawn the proceedings on the aforesaid written report on the basis of oral version given by Radha Kishan (P.W.2). It was mentioned by him that Kanha and Babu Lal sons of Bishna had picked up a quarrel with Heera Lal son of Baldev Gurjar on the dispute of drawing water from the canal to their agricultural field. Dead body of Heera Lal was lying in the jungle near Mahadev Temple. Action be taken. 14. Mangilal (P.W.3) and Parmanand (P.W.4) were cited as eye witnesses. Mangilal (P.W.3) has failed to support the case of the prosecution. What he has stated is that he had gone to take bath in the open near Mahadev Temple. Parmanand (P.W.4) was also taking bath there. When Parmanand (P.W.4) had finished taking bath, he started crying that someone had killed Heera Lal. When he went near there, he saw the dead body of Heera Lal lying on the ground. Kanha and Babu were present there, but he did not see them to kill him. In cross-examination, however, this witness stated that he heard Parmanand telling Kanha and Babu that they have killed Heera Lal. Thereafter, both of them ran away towards the jungle. Parmanand (P.W.4) in his statement has stated that Kanha and Babu put Heera Lal to death by strangulation and threw his dead body near ‘dhore’. Thereafter, villagers came there. He stated that Kanha pushed neck of Heera Lal by his both hands and he was not given beating by fists. Babu Lal was standing besides him. When he was confronted with his police statement (Exhibit D-1), he denied having stated that Kanha and Babu both gave beating to Heera by hands and fists. 15. Dr. O.P. Gaur (P.W.1) has proved post mortem report (Exhibit P-1). Cause of death was asphyxia as a result of blockage of air passage. In his opinion, the deceased was strangulated. In cross-examination he stated that neck of the deceased appears to have been pushed by both hands from front side, but there were no marks. Nail marks were not on the neck which means that the person who killed him did not have long nails. He stated that it must have taken 5-10 minutes to put him to death by strangulation. 16. Nail marks were not on the neck which means that the person who killed him did not have long nails. He stated that it must have taken 5-10 minutes to put him to death by strangulation. 16. The evidence that has surfaced in this case clearly suggests that incident had taken place all of sudden at a spur of moment in heat of passion when the deceased wanted to fetch water from canal to his agricultural field, which was resisted by the accused and then quarrel between both sides took place. Since the deceased was alone and the accused Babu Lal and Kanha @ Kanhiya Lal, who were real brothers and more in number, overpowered him and started beating him. Even though there is no external injury on the person of the deceased yet statement of Dr. O. P. Gaur (P.W.1) clearly proves that the deceased died due to blockage of air passage resulting from strangulation. It appears that this had taken place due to force applied to his neck either by fists or by hand. 17. The Supreme Court in Uday Singh (supra) was dealing with a case wherein the fight between two parties started all of a sudden as a result of obstruction caused in digging of foundation. There was no evidence to show that the accused attacked the deceased with deadly or dangerous arms or weapons. The fight took place in the heat of passion and no common intention to kill the deceased could be inferred. It was difficult to conclude who actually inflicted the fatal injury as the evidence on record disclosed that apart from the appellant, one more accused strangulated the deceased. The Supreme Court held that no inference could be drawn that the appellant had an intention to cause death or cause such bodily injury which was likely to cause death. Thus, the appellants therein were held guilty of culpable homicide not amounting to murder. The facts of the present case are identical to Uday Singh (supra) and the appellant Kanha must be held guilty of culpable homicide not amounting to murder. 18. In the result, the appeal qua accused-appellant Babu Lal stands dismissed as having abated. However, the same qua accused-appellant Kanha @ Kanhiya Lal deserves to succeed in part and the same is partly allowed. 18. In the result, the appeal qua accused-appellant Babu Lal stands dismissed as having abated. However, the same qua accused-appellant Kanha @ Kanhiya Lal deserves to succeed in part and the same is partly allowed. Conviction and sentence of the accused-appellant Kanha @ Kanhiya Lal for offence under Section 302 IPC is set aside, instead he is convicted for offence under Section 304 Part II and sentenced to five years’ rigorous imprisonment with fine of Rs. 1,000/-, in default of payment of fine to further undergo six months’ rigorous imprisonment. Accused-appellant Kanha alias Kanhiya Lal is on bail. He is directed to surrender before the trial court immediately to serve out his remaining sentence.