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2018 DIGILAW 2276 (RAJ)

Jagdish @ Baccha v. The State Of Rajasthan

2018-12-10

MANOJ KUMAR GARG, PRADEEP NANDRAJOG

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JUDGMENT Pradeep Nandrajog, C.J. - The process of criminal law was set into motion when Mahendra Singh S/o Jalam Singh (PW-1) went to Police Station G.R.P., Jodhpur on 9.6.2008 in the intervening night of 8th and 9th June, 2008 and gave the written report Exhibit P/1. 2. In the written report Exhibit P/1 Mahendra Singh stated that at 11.30 p.m. he was with his taxi at the taxi stand outside the Railway Station. Jaswant Singh (PW-2) was sitting on the floor in front of his car. Jagdish (A-1) an auto driver passed the road hitting Jaswant Singh on his foot. Jaswant Singh followed Jagdish and managed to stop his auto. Pintu and Jagdish were sitting in the auto and 4-5 persons were sitting in front of the ATM of the Bank. Jaswant was slapped and he came back to the taxi stand. He i.e. Jaswant, Mahendra Singh i.e. complainant, Karnipal, Banshi Lal, Mahendra S/o Shri Bheru Singh i.e. five persons proceeded to the auto stand where Jagdish had parked his auto with intention to protest. All of sudden Jagdish, Pintu, Zakir, Kayum Beg, Abdul Hassan @ Goriya etc. i.e. 9-10 auto drivers launched an assault on them using knives, lathis and stones. Jagdish inflicted knife blow on the chest of Karnipal. Pintu inflicted knife wound on chest of Banshi Lal. Both fell down. Goriya stabbed him with a knife on his back. He and Jaswant were attacked with a lathi by Kayum Beg. The assailants ran away. 3. The FIR Exhibit P/2 for an offence punishable under Sections 302, 323, 341, 147, 148, 149 and 120-B IPC was registered. The investigation was taken over by Inspector Mumtaz Khan (PW-32). Banshi Lal and Karnipal had already been taken to Mahatma Gandhi Hospital. Both were declared dead. Dead bodies were seized and sent for postmortem. Postmortem report Exhibit P-28 of Banshi Lal records an incised wound on the posterior part of the left parietal region of skull near mid line. A stab wound in the chest which on internal dissection showed that the sharp edged weapon of offence hurt the left lung and entered the heart causing death due to excessive bleeding. A second stabbed wound obliquely placed in the left iliac fossa region. The postmortem report Exhibit P/29 of Karnipal records a stab wound on the chest 6 c.m. below the left nipple. A second stabbed wound obliquely placed in the left iliac fossa region. The postmortem report Exhibit P/29 of Karnipal records a stab wound on the chest 6 c.m. below the left nipple. Internal dissection showed that a sharp edged weapon of offence had pierced the intercostal muscles and entering left side chest cavity in the fourth intercostal space piercing the left lung as also left ventricle of the heart, causing death due to excessive bleeding. Two abrasions in the forearm and the right interior axillary fold were also noted. 4. The complainant Mahendra Singh was examined at the Government Hospital the same day and his MLC Exhibit P-30 shows a fracture of ulna bone of the left arm as also an incised wound at the upper lumbar vertebral region of the back. Jaswant was also medically examined and his MLC Exhibit P-33 shows a swelling of the right elbow with tenderness. 5. Statements of Jaswant Singh PW-2, Mahendra Singh S/o Bheru Singh PW-3, Indra Singh PW-4 and Gulab Singh PW-5 were recorded by the Investigating Officer under Section 161 Cr.P.C., 1973 Needless to state, a knife each was got recovered pursuant to the disclosure statements made by Jagdish and Abdul Rashid, a wooden stick was got recovered pursuant to disclosure statement made by Kayum Beg. A knife was got recovered pursuant to disclosure statement made by Abdul Hassan @ Goriya. A wooden stick was recovered pursuant to the disclosure statement made by Mustaq. 6. Nine accused:- Jagdish @ Bachchu, Abdul Rashid @ Pintu, Kayum Beg, Mustaq, Zakir, Imran @ Shaitan, Saleem @ Babu and Abdul Hasan @ Goriya were sent for trial and as per the FIR it would be apparent that they were charged for having formed an unlawful assembly with the common object of committing an offence. 7. At the trial, Mahendra Singh PW-1 deposed that Jagdish hit Karnipal on the left side of his chest. Abdul Rashid hit Banshi Lal with the knife on his head. Abdul Hassan @ Goriya hit him with a knife on his back. Kayum Beg hit Jaswant and him with lathi. Jaswant PW-2 deposed that Jagdish inflicted knife injury on the chest of Karnipal. Abdul Rashid @ Pintu inflicted knife injury on the chest of Banshi Lal. Kayum Beg inflicted an injury on the hand of Mahendra Singh with a lathi due to which he suffered fracture. Kayum Beg hit Jaswant and him with lathi. Jaswant PW-2 deposed that Jagdish inflicted knife injury on the chest of Karnipal. Abdul Rashid @ Pintu inflicted knife injury on the chest of Banshi Lal. Kayum Beg inflicted an injury on the hand of Mahendra Singh with a lathi due to which he suffered fracture. When Mahendra Singh was running Abdul Hassan @ Goriya inflicted a knife blow on him from the back. Using a lathi Mustaq hit Banshi Lal on his back and hands. All other accused assaulted their group with lathis and stones. Mahendra Singh S/o Bheru Singh PW-3 deposed that Jagdish inflicted knife injury on the chest of Karnipal. When Banshi Lal was fleeing Abdul Rashid @ Pintu caused a knife injury on his chest. Kayum Beg attacked Mahendra Singh PW-1 with a lathi resulting in fracture suffered by Mahendra Singh. He also hit Jaswant with lathi on his right hand. Mustaq hit Banshi Lal with a lathi on his back. Abdul Hassan @ Goriya stabbed Mahendra Singh on the back when he was running. Indra Singh PW-4 deposed that Abdul Rashid hit Banshi Lal with a knife. Abdul Hassan @ Goriya hit Mahendra Singh S/o Jalam Singh but does not disclose the weapon of offence used. Gulab Singh PW-5 did not name any accused who were involved in the incident, because he claimed to be a little away from the place of the incident where he was sitting with Indra Singh PW-4 and one Gautam. 8. From the testimony of the witnesses and indeed from the complaint Exhibit-1 lodged with the Police it emerges that Jaswant Singh was sitting on the ground at the taxi stand when Jagdish on an auto passed, brushing the foot of Jaswant Singh, who ran after the auto (obviously to either remonstrate or teach Jagdish a lesson), but finding Abdul Rashid @ Pintu in the auto and 4-5 other persons outside the ATM of the bank he retrieved after receiving a slap. Obviously, Jaswant Singh must have abused to receive a slap. Jaswant Singh came back and gathered support. He alongwith Karnipal, Banshi Lal, Mahendra Singh S/o Bheru Lal and Mahendra Singh S/o Jalam Singh i.e. five, proceeded to the auto stand. The auto drivers who ultimately became the accused saw five persons approaching. Obviously, Jaswant Singh must have abused to receive a slap. Jaswant Singh came back and gathered support. He alongwith Karnipal, Banshi Lal, Mahendra Singh S/o Bheru Lal and Mahendra Singh S/o Jalam Singh i.e. five, proceeded to the auto stand. The auto drivers who ultimately became the accused saw five persons approaching. It is apparent that the accused were already present at the spot and did not assemble to form an unlawful assembly. Seeing five persons approaching them and this being immediately preceded by Jagdish's auto brushing past the leg of Jaswant and Jaswant chasing the auto and having received a slap, obviously the accused side thought that the five persons of the other group had come to settle a score, and on the spur of moment Jagdish, Pintu, Jakir, Kayum Beg, Abdul Hassan @ Goriya etc. attacked them. On this reasoning the learned Court of Sessions has acquitted the accused for offence for either having entered into the conspiracy or either having formed an unlawful assembly. Everything happened at the spur of moment and thus each accused, to whom acts were attributable, have been held guilty of the respective offence. To whom no specific role was assigned, other than being present, the verdict of acquittal has been rendered. It is apparent that with reference to the aforesaid testimony Jagdish has been held guilty of murdering Karnipal. Abdul Rashid @ Pintu has been held guilty for the offence of having murdering Banshi Lal. Abdul Hassan has been held liable for the knife injuries caused at the back of Mahendra Singh PW-1 for which he has been convicted for the offence punishable under Section 324 IPC. Kayum Beg has been held responsible for the fractures suffered by Mahendra Singh PW-1 in his forearm as also simple injuries caused on the person of Jaswant Singh PW-2 and he has been held guilty for the offence punishable under Section 325 IPC. The accused who used the knives have additionally being convicted for the offence under Section 4/25 of the Arms Act. 9. Learned Counsel for Mahendra Singh the complainant who has filed Criminal Appeal No.12/2015 and learned public prosecutor attack the impugned judgment in so far Mustaq, Zakir, Imran and Saleem have been acquitted. Learned counsel argued that the four were present at the spot and thus it is a case of forming an unlawful assembly and rioting. 10. 9. Learned Counsel for Mahendra Singh the complainant who has filed Criminal Appeal No.12/2015 and learned public prosecutor attack the impugned judgment in so far Mustaq, Zakir, Imran and Saleem have been acquitted. Learned counsel argued that the four were present at the spot and thus it is a case of forming an unlawful assembly and rioting. 10. For the facts noted hereinabove which we have highlighted in para 8 above concerning the reasoning given by the learned Court of Sessions to form an opinion that it was not a case of an unlawful assembly formed, we agree. The reason is, as noted above, the incident was preceded by Jagdish brushing passed the leg of Jaswant while driving his auto. Jaswant ran after him obviously to settle scores but finding Abdul Rashid @ Pintu in the auto and 4-5 auto drivers at the ATM he retrieved, but he was slapped. Obviously, he must have abused Jagdish. He came back and took alongwith him four other persons. It was taxi drivers v. auto drivers. As five taxi drivers approached the auto drivers soon after the incident involving Jagdish and Jaswant having taken place, on the assumption that the taxi drivers have come to settle scores, before the taxi drivers could do anything they were attacked. It is thus a case where each accused would be individually responsible for his acts. The argument of learned public prosecutor and counsel for the complainant is that the testimony shows that the accused Abdul Hassan chased Mahendra Singh. From this, no inference of any kind of common intention or common object or forming an unlawful assembly can be formed. The hitting and chase took place at the spur of the moment. It needs to be highlighted that in his testimony Jaswant Singh PW-2 has categorically stated that stone pelting took place at the time of the incident. 11. We concur that the acquittal of four accused is warranted to whom no specific role has been assigned. 12. Indeed, Jagdish and Abdul Rashid are responsible for the death of Karnipal and Banshi Lal respectively. The question would be whether the offence committed by them is one of murder or culpable homicide punishable under Part-I and Part-II of Section 304 IPC. 12. Indeed, Jagdish and Abdul Rashid are responsible for the death of Karnipal and Banshi Lal respectively. The question would be whether the offence committed by them is one of murder or culpable homicide punishable under Part-I and Part-II of Section 304 IPC. The evidence which we have analyzed hereinabvoe shows that the victim group being five in number who a taxi drivers proceeded to the auto stand to settle a score with Jagdish who a few minutes ago had brushed passed the foot of Jaswant Singh. The possibility of the taxi drivers abusing cannot be ruled out. That apart, where five taxi drivers moved towards the auto stand and a few minutes prior thereto a brush had taken place with one of the auto drivers i.e. Jagdish, the fight being sudden emerges. It is not a case where either of the accused acted with concert much less with a premeditated mind. It is not a case where multiple stab wounds were inflicted. Banshi Lal, receiving two stab wounds and one incised wound on the skull. Deceased Karnipal, apart from one stab wound received two abrasions. 13. The knives recovered from Jagdish and Abdul Rashid are button knives and therefore we hold that the offence committed by the two are culpable homicide, not amounting to murder under Part-I of Section 304 IPC. 14. As regards Kayum Beg he used a wooden stick to cause injuries to Mahendra Singh PW-1 and Jaswant Singh PW-2. The injuries caused by the stick to Mahenda Singh PW-1 resulted in the fracture of ulna of the left arm. It would be grievous injury and thus his conviction for the offence punishable under Section 325 IPC stands. 15. Abdul Hassan @ Goriya inflicted a knife wound on the back of Mahendra Singh PW-1. The injury is in a non vital part of the body and thus his conviction for the offence punishable under Section 324 IPC stands. The conviction of the accused for offences punishable under the Arms Act who have been convicted also stands. 16. For the offence of murder, Jagdish and Abdul Rashid @ Pintu have been sentenced to undergo imprisonment for life and for the offence under the Arms Act they have been sentenced to undergo rigorous imprisonment for three years. Jagdish is still in Jail and has suffered a sentence of more than ten years. 16. For the offence of murder, Jagdish and Abdul Rashid @ Pintu have been sentenced to undergo imprisonment for life and for the offence under the Arms Act they have been sentenced to undergo rigorous imprisonment for three years. Jagdish is still in Jail and has suffered a sentence of more than ten years. Abdul Rashid obtained bail when he undergone a sentence of eight years. 17. We disposed of the appeals filed by Jagdish and Abdul Rashid @ Pintu i.e. Criminal Appeals No.750/2016 and 766/2014 by altering their conviction for the offence punishable under Section 302 IPC to the offence punishable under Section 304 Part-I IPC and sentence them to undergo imprisonment for the period already undergone by the two. We maintain their conviction for the offence punishable under the Arms Act which is three years. Needless to state, the sentence would run concurrently. Thus, as regards Abdul Rashid he being on bail, the bail bonds furnished by him as also the surety bonds are discharged. 18. Since Jagdish is in custody he is directed to be released forthwith unless required to be in custody in some other case. However, keeping in view the provisions of section 437A Cr.P.C., 1973 the accused appellant is directed to furnish personal bond in sum of Rs. 15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court. 19. As regards Abdul Hassan and Kayum Beg noting that the offence took place over ten years' ago i.e. in the year 2008, there being no other criminal antecedents of the two while maintaining their conviction we reduce the sentence imposed upon them for the period already undergone for the reason both have been admitted to be released on bail. 20. In nutshell, Criminal Appeals No.811/2014 and 765/2014 filed by Abdul Hassan and Kayum Beg are disposed of maintaining their convictions, but reducing the sentence as aforesaid. 21. Criminal Appeal No.12/2015 filed by the complainant Mahendra Singh is dismissed.