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2018 DIGILAW 824 (RAJ)

Soni Mali v. State of Rajasthan

2018-03-21

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT : MOHAMMAD RAFIQ, J. 1. This is quite an old appeal, filed way back on 03.08.1985 by the accused-appellants challenging the judgment and order dated 31.07.1985 passed by the Court of Sessions Judge, Jhunjhunu (for short ‘the trial court’) whereby the Accused-appellants were convicted and sentenced in the manner indicated below:- Name of Accused-appellants Section Sentence (1) Smt. Shanti 148 IPC Two years' rigorous imprisonment with fine of Rs. 100/- each in default of payment of fine to further undergo one month's additional rigorous imprisonment. (2) Smt. Soni (3) Smt. Geeta (4) Smt. Kistoori (5) Smt. Parli (6) Smt. Kamli (7) Smt. Banarsi (8) Smt. Lali (9) Teja Ram (10) Umrao (11) Leela Ram (12) Bajrang (13) Bhoja Ram (14) Bhagwana (15) Ghuda Ram (1) Smt. Shanti 323 r/w 149 IPC One year's rigorous imprisonment. (2) Smt. Soni (3) Smt. Geeta (4) Smt. Kistoori (5) Smt. Parli (6) Smt. Kamli (7) Smt. Banarsi (8) Smt. Lali (9) Teja Ram (10) Umrao (11) Leela Ram (12) Bajrang (13) Bhoja Ram (14) Bhagwana (15) Ghuda Ram (1) Leela Ram 302 IPC Life imprisonment with fine of Rs. 100/- each, in default of payment of fine to further undergo one month's additional rigorous imprisonment. (2) Umrao (1) Smt. Shanti 302 r/w 149 IPC Life imprisonment with fine of Rs. 100/- each, in default of payment of fine to further undergo one month's additional rigorous imprisonment. (2) Smt. Soni (3) Smt. Geeta (4) Smt. Kistoori (5) Smt. Parli (6) Smt. Kamli (7) Smt. Banarsi (8) Smt. Lali (9) Teja Ram (10) Bajrang (11) Bhoja Ram (12) Bhagwana (13) Ghuda Ram All the sentences were ordered to run concurrently. 2. During pendency of present appeal, two of the Accused-appellants namely Smt. Shanti and Tejaram expired and therefore present appeal in their respect was taken to be abated by this Court vide its order dated 07.04.2010. Thereafter, it was informed that appellant namely, Smt. Banarsi had also expired. This Court vide order dated 01.08.2017 directed Chief Judicial Magistrate, Jhunjhunu to hold an inquiry regarding factum of death of Smt. Banarsi. Chief Judicial Magistrate, Jhunjhunu vide its letter dated 08.09.2017 has informed that Smt. Banarsi expired on 30.04.2012. He has also sent certificate dated 05.09.2017 issued by Sarpanch, Gram Panchayat Singhana, Panchayat Samiti Buhana, Jhunjhunu as also photo copy of death certificate of Smt. Banarsi, which are taken on record. Chief Judicial Magistrate, Jhunjhunu vide its letter dated 08.09.2017 has informed that Smt. Banarsi expired on 30.04.2012. He has also sent certificate dated 05.09.2017 issued by Sarpanch, Gram Panchayat Singhana, Panchayat Samiti Buhana, Jhunjhunu as also photo copy of death certificate of Smt. Banarsi, which are taken on record. In view of above, present appeal also stands abated qua accused-appellant Smt. Banarsi. Now present appeal survives only against 12 appellants and the same is being decided on merits. 3. Facts of the case are that a civil dispute about the right of way through the field of the accused persons was pending in the court of the Munsiff Magistrate, Khetri between the parties. In the said suit, the learned Munsiff Magistrate appointed a Commissioner to make inspection of the site and to make a report. It was alleged that when the Commissioner left the village after inspecting the site, an incident of marpit took place between the parties. It was alleged that all the 17 accused persons, which included the 15 appellants and two minor children, who after the completion of the trial, were ordered to be sent to children court, assaulted the members of the complainant party. In the said incident, from the side of the complainant Banwari S/o Shimbhu sustained four injuries and died. Besides Banwari, Sheolal S/o Shambhu was alleged to have sustained two simple injuries by blunt object, Smt. Lichhmi W/o Umda Ram sustained injury by blunt object weapon, simple in nature, Durga Ram S/o Shambhu sustained one injury by blunt object, simple in nature; Bhata Ram, sustained 3 simple injuries by blunt object, Chhanga Ram sustained one abrasion by blunt object, simple in nature and Smt. Parmeshwari sustained two contusions by blunt object, simple in nature. One of the injuries on the little finger of Durga Ram was opined as grievous on X-Ray examination. It is was further alleged that in the said incident, as many as 6 accused persons sustained number of injuries on their person. One of the injuries on the little finger of Durga Ram was opined as grievous on X-Ray examination. It is was further alleged that in the said incident, as many as 6 accused persons sustained number of injuries on their person. Smt. Soni W/o Teja Ram sustained five injuries, which included one lacerated wound on the middle of head, Leela Ram appellant sustained two injuries, Bajrang sustained four injuries, which included one lacerated wound on the middle of head, Smt. Parli sustained 3 injuries including one lacerated wound on the front of Right Leg, Smt. Shanti W/o Sheo Chand sustained four injuries including an injury on the temporal region, Smt. Bimla sustained one injury. One of the injuries sustained by Smt. Shanti was found to be grievous on X-Ray examination. 4. A counter report of the incident was lodged at the police station and as per the defence version the members of the complainant party assaulted to them in front of their house. On the basis of report lodged by the complainant party, FIR No. 62/1983 (Exhibit P-4) was registered at Police Station Singhana, District Jhunjhunu and investigation commenced. All the 17 accused persons were arrested and after completion of the investigation, a charge-sheet was filed against all the 17 accused persons including two minors. All the 17 persons were committed to the learned Sessions Judge for trial. Thereafter, charges were framed against the accused-appellants for offences under Sections 148, 302 or in alternative 302 read with Section 149 IPC, 323 or in alternative 323 read with Section 149 IPC, which they denied and claimed to be tried. The prosecution, in support of its case, produced 19 witnesses and exhibited 49 documents. Thereafter, the accused-appellants were examined under Section 313 Cr.P.C. wherein they alleged false implication. In defence, though no witness was produced, but 23 documents were exhibited. On conclusion of trial, the trial court vide its judgment and order dated 31.07.1985 convicted and sentence the accused-appellants in the manner stated above. Hence, this appeal. 5. Mr. Rinesh Gupta, learned counsel for the Accused-appellants argued that findings arrived at by the learned trial court and the conviction and sentence passed against the Accused-appellants are patently illegal and perverse to the facts on record. No offence either under Section 302 or 302/149 IPC has been made out against any of the accused-appellants from the evidence produced by the prosecution. No offence either under Section 302 or 302/149 IPC has been made out against any of the accused-appellants from the evidence produced by the prosecution. The prosecution did not come with a true version about the origin of the fight and the manner in which the incident took place. As already stated above, as many as 6 accused persons sustained injuries, on the various part of their body in as much as the incident took place in front of the house of the accused. Some of the injuries sustained by the accused persons are on the vital part and one of the injuries of Smt. Shanti was found to be grievous in nature. 6. It is argued that the prosecution has failed to explain the injuries sustained by the accused. All the witnesses have denied the existence of the injuries on the person of the accused. The accused persons could not have sustained the injuries as alleged above, if the incident had taken place in the manner as stated by the prosecution witnesses. Thus, the non-explanation of the injuries sustained by the accused is a serious infirmity in a murder case. Non-explanation of the injuries sustained by the accused at the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw inferences; firstly that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; secondly the witnesses, who have denied the presence of the injuries on the person of the accused, are lying on a most material point and therefore their evidence is unreliable and thirdly, in case where there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to thrown doubt on the prosecution case. It is argued that in the instant case, all the three inferences can be drawn against the prosecution for the non-explanation of the injuries sustained by the accused. The approach of the learned trial court in deciding the case is erroneous in law which has resulted in miscarriage of justice. 7. Learned counsel argued that the accused persons have come with an alternative version and the version given by the accused is probablised by the existence of the injuries on their persons. The approach of the learned trial court in deciding the case is erroneous in law which has resulted in miscarriage of justice. 7. Learned counsel argued that the accused persons have come with an alternative version and the version given by the accused is probablised by the existence of the injuries on their persons. The trial court committed serious error in not making a critical analysis, while appreciating the evidence led by the prosecution. Even the statements of the prosecution witnesses have not been properly considered before recording the conviction of the accused appellants. Thus the impugned judgment suffers from serious infirmity. The learned trial court failed to appreciate and consider the two cardinal participles of criminal jurisprudence namely (i) the prosecution is required to prove the guilt against each of the accused beyond reasonable doubt and (ii) the accused persons are entitled to the benefit of reasonable doubt. Had the learned trial court followed the above two cardinal participles of criminal jurisprudence regarding the appreciation of evidence, the conviction of any of the accused-appellants could not have been recorded by him either under Section 302 or 302/149 IPC. The learned trial court further erred in law in not considering the fact that the burden of proof on the accused is not so heavy as it lies on the prosecution. The burden on the accused is support of the plea taken by him can be discharged even by showing the preponderance of probability in favour of the plea. Even the appellants fail to substantiate the plea, they are entitled to get the benefit if a reasonable doubt is created in the prosecution case. 8. The learned trial court further committed serious error in accepting the evidence of the prosecution witnesses on its face value, which suffers from serous infirmities, besides that there are material contradictions and inconsistencies in the statement of the witnesses. No witness of the locality or neighborhood has supported the prosecution case. The findings of the learned trial court are further vitiated as being based on misreading of evidence and non-reading of material evidence as well as on mere surmises and conjectures. The learned trial court further erred in not taking into consideration the facts and circumstances in favour of the accused appellants. The learned trial court further erred in invoking Section 149 IPC for holding the accused appellants to be the members of the unlawful assembly. The learned trial court further erred in not taking into consideration the facts and circumstances in favour of the accused appellants. The learned trial court further erred in invoking Section 149 IPC for holding the accused appellants to be the members of the unlawful assembly. It has further erred in holding that the death of Banwari was caused in furtherance of the common object. As already stated above, Banwari had sustained only four injuries and if the appellants had a common object to commit his murder, one would have expected number of injuries on his person. The accused persons are further entitled to get the benefit of having acted in the exercise of right of private defence. There are serious defects in framing of the charge as well as in recording the statements of the accused under Section 313 Cr.P.C. and they have been seriously prejudiced thereby. There are material contradictions in the oral evidence and the medical evidence, which also disproves the prosecution case. 9. Learned counsel for the accused-appellants submitted that the prosecution has not given any explanation whatsoever about the injuries sustained by the accused-appellants, which is evident from their injury reports (Exhibit D-11 to Exhibit D-17), which indicate that large number of injuries were sustained by the accused persons inasmuch as one of the accused-appellant Smt. Shanti sustained fracture of left elbow joint. It is argued that total seven accused sustained injuries and the prosecution witnesses have not given any explanation of such injuries and rather denied factum of injuries being received by the accused persons. 10. Learned counsel citing judgment of the Supreme Court in Lakshmi Singh and Others vs. State of Bihar, AIR 1976 SC 2263 argued that in the absence of explanation of injuries of the accused-appellants, they have to be accquitted. Learned counsel for the accused-appellants alternatively argued that the prosecution witnesses have improved upon their original version given in the first information report where no specific allegation was attributed to any of the accused-appellants. Even in their statements recorded under Section 161 Cr.P.C. their allegations were not specific in respect of the accused-appellants, but in the Court statements they improved upon their original version and apart from specifically alleging with respect to injuries of the deceased that Bajrang inflicted ‘kulhadi’ blow on the nose of the deceased and Leela Ram inflicted ‘lathi’ blow on the head of the deceased. Learned counsel referred to post mortem report of the deceased (Exhibit P-15) and statement of Dr. Ramesh Rohilla (PW-13) and argued that there is no injury by sharp edged weapon on the nose of the deceased. Total four injuries were sustained by the deceased out of which first injury was abrasion in the size of 1” x 1” on back of left wrist joint and fourth injury was lacerated wound in the size of 1/2” x 1/4” into muscle deep on front and lower region of nose. This indicates that fourth injury was not caused by sharp edged weapon. Relying upon the judgment of the Supreme Court in Hallu and Others vs. State of Madhya Pradesh, AIR 1974 SC 1936 , learned counsel argued that when a witness alleges mixed allegation with regard to injury being caused by sharp edged weapon like ‘kulhadi’ normal presumption would be that he means to convey that injury was caused by sharp edged side of the weapon and not from the blunt side. In the present case, no such injury by sharp edged side has been found to be caused on the nose of the deceased and therefore despite being consistency in the statements of prosecution witnesses about the allegation against Bajrang, charge against him cannot be held to be proved that he too caused injuries to the deceased. As regard number of several other accused, except Leela Ram and Umrao, learned counsel argued that those other accused can at the best be said to have common intention of causing beating to members of the complainant party but none of them intended to commit any murder, much less to kill anyone of them. His alternative submission therefore is that if only two accused namely Leela Ram and Umrao are held to have caused one lathi blow each on the head of the deceased, they can be said to be exceeded their common object of unlawful assembly, i.e. for the offence under Section 323, 149, 302 and 148 IPC with regard to which each of the accused has been convicted with the aid of Section 149 IPC, learned trial court despite taking note of the evidence in entirety has erred in law in mechanically convicting remaining accused for offence of murder with the aid of Section 149 IPC. 11. 11. As regard, accused-appellants Leela Ram and Umrao, learned counsel argued that prosecution witnesses in their statements have specifically admitted that litigation was pending between the parties with regard to agricultural land and inasmuch as complainant party was claiming right of way on the agricultural land of the appellants and the accused party was resisting the same. Reference is made to statement of Durgaram (PW-9), who in his cross-examination, admitted that complainant party was required in proceedings under Section 107 and 116 Cr.P.C. to maintain good conduct two months prior to the date of incident. Similar statement has been made by Shyolal (PW-11). Since, the complainant party has not given any explanation for their injuries accused-appellants must be held to have acted in exercise of their right of private defence and in doing so, if two of them namely Leela Ram and Umrao exceeded the same, their case would fall within the exception 2 to Section 300 IPC and therefore their offence would be culpable homicide not amounting to murder rather than murder. In the facts of the case, where the weapon which is used is not a deadly weapon and is merely lathies as alleged by the prosecution, their guilt would hardly fall within the purview of Section 304 Part II IPC. Considering that Accused-appellants were in their early 40s at the time when the incident took place on 07.09.1983, long period of 35 years having been passed, accused-appellants Leela Ram and Umrao may not be sent back behind the bars or if they are required to be sent back behind the bars, this Court may take a lenient view of the matter keeping in view the long lapse of time in between. 12. Mrs. Sonia Shandilya, learned Public Prosecutor, Mr. Mohit Balwada and Mr. Ram Rakh Sharma, learned counsel for the complainant opposed the appeal. 13. We have given our anxious consideration to rival submissions and carefully perused the material on record. 14. Site plan of the place of occurrence is Exhibit P-5, which has been proved by Nahar Singh (PW-19), Investigating Officer. According to site plan, incident has taken place in front of the house of the deceased Banwari. Statements of prosecution witnesses indicate that the incident took place when Court Commissioner, Banwari had come to inspect the disputed land, which is the bone of contention between the parties and then left. Banwari went to his house. According to site plan, incident has taken place in front of the house of the deceased Banwari. Statements of prosecution witnesses indicate that the incident took place when Court Commissioner, Banwari had come to inspect the disputed land, which is the bone of contention between the parties and then left. Banwari went to his house. At that stage, Banarsi, Shanti, Reshmi, Geeta started beating Parmeshwari. Then, the incident started. There are in this case number prosecution witnesses, who have been produced as eye witnesses namely Bhata Ram (PW-1), Nanar (PW-2), Hanuman (PW-3), Bhader (PW-4), Moti Ram (PW-5), Mst. Bhagwani (PW-6), Changa Ram (PW-7), Parmeshwari (PW-8), Durga Ram (PW-9), Mst. Laxmi (PW-10) and Shyolal (PW-11). Out of these 11 witnesses, Bhata Ram (PW-1), Changa Ram (PW-7), Parmeshwari (PW-8), Durga Ram (PW-9) and Shyolal (PW-11) are injured eye witnesses and therefore, their presence at the place of occurrence cannot be doubted. Even if, no specific allegation has been made in the FIR, their consistent version in the Court with regard to injuries caused to the deceased cannot be brushed aside. However, we are inclined to countenance the argument of learned counsel for the accused-appellants with regard to allegation levelled against accused-appellant Bajrang when all the prosecution witnesses have alleged that he inflicted ‘kulhadi’ blow on the nose of the deceased, there is indeed no corresponding injury by sharp edged weapon on the nose of the deceased, i.e. there is no incised wound. Post mortem report of the deceased (Exhibit P-15) indicates following four injuries on the person of the deceased: “1. Abrasion 1” x 1” on back of left wrist joint. 2. A lacerated wound 2” x ½” x scalp deep on right parietal region of scalp 3” above the right ear. 3. A lacerated wound 3” x ½” x scalp deep 2” behind the injury no. 2 on right parietal region of scalp. 4. A Lacerated wound ½” x ¼” x muscle deep on front and lower region of nose in onid line.” 15. All the above four injuries are simple in nature inasmuch as there being no injury by sharp edged weapon, Bajrang, in our view cannot be said to have caused any injury to the deceased. 4. A Lacerated wound ½” x ¼” x muscle deep on front and lower region of nose in onid line.” 15. All the above four injuries are simple in nature inasmuch as there being no injury by sharp edged weapon, Bajrang, in our view cannot be said to have caused any injury to the deceased. However, the same thing cannot be said about other two accused-appellant namely Leela Ram and Umrao because allegation against them has been consistently made by the eye witnesses including six injured eye witnesses that one lathi blow each was caused by both of them on the head of the deceased, which is medically corroborated in post mortem report of the deceased (Exhibit P-15). In the cross fight that ensued, members of accused party also sustained injuries. All the injuries are simple in nature, but one of the accused Shanti sustained fracture of left elbow joint. On the other hand, post mortem report (Exhibit P-15) as also reports of injuries sustained by three injured namely Lichhmi, Sheo Lal and Durga Ram (Exhibit P-10 to Exhibit P-12 respectively), who sustained number of injuries have been proved by Dr. Ramesh Rohila (PW-13). Evidence in this case thus clearly shows that both the sides have received injuries in the same incident and even the number and nature of injuries sustained by the accused party as also cross FIR (Exhibit D-19) has also produced on record, which has been admitted by Nahar Singh (PW-19), Investigating Officer and the accused in their examination under Section 313 Cr.P.C. have taken a specific defence about cross fight, in which they too sustained injuries. The unlawful assembly, if it was there on the part of Accused-appellants, it was only for giving a good threshing/beating to the members of the complainant party, which is corresponding from the nature of injuries sustained by them and such beating was equally resisted by the complainant party as seen from the injuries of accused persons. However, in that process, two of the accused namely Leela Ram and Umrao have exceeded their common object of such unlawful assembly by causing fatal injuries, i.e. one lathi blow each on the head of the deceased. When we see injury report of Leela Ram (Exhibit D-15), he has received three injuries. However, in that process, two of the accused namely Leela Ram and Umrao have exceeded their common object of such unlawful assembly by causing fatal injuries, i.e. one lathi blow each on the head of the deceased. When we see injury report of Leela Ram (Exhibit D-15), he has received three injuries. While one of them is contusion on the back of left side of chest in the size of 3” x 1” second injury was defuse swelling just above right eye brow 1” x 1/2” and third injury was complaint of pain in back of right shoulder. No injury has been sustained by accused-appellant Umrao. Even in view of more number of injuries on their side, if it is accepted that they acted in exercise of right to private defence, they certainly exceeded such right. Exception 2 to Section 300 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 parties are closely related to each other and dispute was with regard to right of way through agricultural land of the accused party which the claimant party was claiming and accused party was resisting. Since the accused-appellant Leela Ram and Umrao shared common intention of causing fatal injuries to the deceased, therefore, charge of offence of culpable homicide not amounting to murder can at the maximum be held to have been proved against the accused- appellants Leela Ram and Umrao, which falls under Section 304 Part II IPC. 16. In view of above discussion, present appeal deserves to succeed in part and is partly allowed. Conviction and sentence of the accused-appellants namely Smt. Soni, Smt. Geeta, Smt. Kistoori, Smt. Parli, Smt. Kamli, Smt. Lali, Bajrang, Bhoja Ram, Bhagwana, Ghuda Ram for offence under Section 302 read with Section 149 IPC is set aside and they are acquitted of that charge. However, their conviction for offence under Sections 148 and 323 read with Section 149 IPC is maintained, but they sentenced to the period of imprisonment already undergone by them. However, their conviction for offence under Sections 148 and 323 read with Section 149 IPC is maintained, but they sentenced to the period of imprisonment already undergone by them. Fine imposed upon them by the trial court on aforesaid counts is maintained. Accused-appellants Leela Ram and Umrao are acquitted of the charge under Section 302 IPC instead they are convicted for offence under Section 304 Part II IPC and sentenced to five years’ rigorous imprisonment with fine of Rs. 100/- each, in default of payment of fine, each of them shall undergo additional rigorous imprisonment for one month. However, their conviction and sentence for offence under Sections 148 and 323 read with Section 149 IPC is set aside and they are acquitted of those charges.