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2019 DIGILAW 585 (RAJ)

Shiva @ Shiv Lal v. The State Of Rajasthan

2019-02-19

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Sandeep Mehta, J. - The instant appeal has been preferred by the appellant Shiva @ Shiv Lal, who has been convicted and sentenced as below by the learned Additional Sessions Judge, Rajsamand vide judgement dated 27.11.2015 passed in Sessions Case No. 49/2013. Offences Sentences Fine In Default Under Section 302 IPC Life Imprisonment Rs.10,000/- One Months' additional simple Imprisonment Under Section 323 IPC Three months simple imprisonment - - Under Section 447 IPC One month's simple imprisonment - - All the sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C., 1973 Facts in brief:- Shri Shahadat Khan PW-16 lodged a written report Ex.P-12 to the SHO, Kelwada on 19.06.2011 alleging inter alia that on 18.06.2011, he was approached by Kupa Ram Gameti to prepare his field by bullocks and plough whereupon, he went to the field of Kupa Ram named 'Pachhoor-ka-Banda'. He worked there till evening but a small portion of the field was left out. On 19.06.2011 in the morning he again started ploughing the remaining portion of the field of Kupa Ram. Kupa Ram's wife was planting Maize seeds in the ploughed portion of the field. Kupa Ram was preparing tea in a makeshift shed. At about 9:15 in the morning, Shiva S/o Tagta Bheel came around with a lathi in his hand and challenged Shahadat Khan as to with whose permission, he was ploughing the field. Shahadat Khan told Shiv Lal that Kupa Ram had engaged him to do the job. On hearing this, Shiva caught hold of Shahadat Khan's collar and threatened him upon which, he stopped the work. Thereafter, Shiva gave lathi blows on the hands of Kupa Ram's wife. He then went to the shelter where, Kupa Ram was sitting and gave him lathi blows on the neck. Kupa Ram ran towards the field trying to escape but Shiva pursued him and inflicted repeated lathi blows on the head of Kupa Ram who fell down in the field. Chamna and his wife came over to intervene on which, they too were threatened. The first informant got frightened on witnessing the incident and thus he took his oxen and went away to his house. Kupa Ram's wife and Chamna Ram were at the field. Chamna and his wife came over to intervene on which, they too were threatened. The first informant got frightened on witnessing the incident and thus he took his oxen and went away to his house. Kupa Ram's wife and Chamna Ram were at the field. When police reached at the scene of occurrence, he too mustered courage and went there. He alleged that Shiva and Kupa Ram were already having an ongoing land dispute between them and thus, Shiva had murdered Kupa Ram by giving him lathi blows. On the basis of this report, an First Information Report No.104/2011 was registered at the Police Station Kelwada for the offences under Sections 302, 341, 323 and 447 of the IPC.After investigation, the accused was charge sheeted in the court of competent Magistrate for the offences under Sections 447, 302, and 323 IPC. Since the offence under Section 302 IPC was Sessions triable, the case was committed to the court of Sessions Judge, Rajsamand who transferred the same to the court of Additional Sessions Judge, Rajsamand for trial. Charges were framed against the accused appellant for the above offences who pleaded not guilty and claimed trial. The prosecution examined as many as 20 witnesses and got exhibited 34 documents in support of its case. After prosecution evidence had been concluded, the accused appellant was questioned under Section 313 Cr.P.C., 1973 and was confronted with the circumstances appearing against him in the prosecution evidence. He refuted the same but did not lead any evidence in defence despite opportunity. 3. After hearing and appreciating the arguments advanced by the defence and the learned Public Prosecutor and after sifting and evaluating the evidence available on record, the trial court proceeded to convict and sentence the appellant as above. Hence, this appeal. 4. Shri Kalu Ram Bhati, learned counsel representing the appellant, vehemently and fervently contended that the entire prosecution case is false and fabricated. Kupa Ram high-handedly started cultivating the appellant's field without any authorization or justification and thus, the appellant had every right to prevent Kupa Ram from doing so. He further urged that the deposition of the Medical Officer (PW-12), Dr. Sudhir and the description and dimension of the injuries noted by him in the postmortem report (Ex.P-13) completely negates the possibility of the injuries having been inflicted by the lathi of the kind which was recovered at the instance of appellant. He further urged that the deposition of the Medical Officer (PW-12), Dr. Sudhir and the description and dimension of the injuries noted by him in the postmortem report (Ex.P-13) completely negates the possibility of the injuries having been inflicted by the lathi of the kind which was recovered at the instance of appellant. He has placed reliance upon the decision of this Court in the case of Magni Ram Balai vs. State of Rajasthan reported in, (2018) 2 Cr.L.R. (Raj.) 1064; Mana Ram Jat & Anr. vs. State of Rajasthan reported in, (2018) 2 Cr.L.R. (Raj.) 991 and Sukhdev Singh Jatsikh & Anr. vs. State of Rajasthan reported in, (2018) 4 Cr.L.R.(Raj.) 2166 and urged that even if the prosecution case is accepted as true on the face of the record, the appellant acted at the spur of the moment owing to the grave and sudden provocation given to him by the complainant party, who trespassed into the field of the appellant and were trying to cultivate the same without having any authorisation to do so. He referred to the statement of PW-10 Smt. Bhurki who, admitted that the field which Shahadat Khan was ploughing, was that of Shiva. He thus urged that the appellant's conviction for the offence under Section 302 IPC deserves to be converted to the offence under Section 304 IPC by extending him the benefit of the Exception (1) of Section 300 of the IPC. In the alternative, he urged that the appellant is also entitled to be extended the benefit of right of private defence of his property by virtue of Section 97 read with Section 103 of the IPC. On these grounds, he craved acceptance of the appeal; reversal of the impugned judgement of conviction and sought acquittal of the appellant. In the alternative, he urged that the appellant is entitled to be treated as one for toning down of his conviction from the offence under Section 302 IPC to the one under Section 304 IPC. 5. The learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by appellant's counsel. He referred to the statements of eye witnesses PW-10 Bhurki, PW-11 Chamnaram, PW-16 Shahadat Khan (first informant) and PW-18 Bhanwari @ Mautki (being the wife of the deceased Kupa Ram and also an injured eye-witness), the Investigating Officer Devi Lal PW-15 and the Medical Officer PW-12 Dr. He referred to the statements of eye witnesses PW-10 Bhurki, PW-11 Chamnaram, PW-16 Shahadat Khan (first informant) and PW-18 Bhanwari @ Mautki (being the wife of the deceased Kupa Ram and also an injured eye-witness), the Investigating Officer Devi Lal PW-15 and the Medical Officer PW-12 Dr. Sudhir and urged that the eye-witnesses have given cogent, clinching and convincing testimony so as to establish the guilt of the accused-appellant. Their evidence is duly corroborated by the medical evidence of PW-12 Dr. Sudhir. He contended that the accused acted in an exceptionally cruel fashion while inflicting repeated lathi blows to the deceased three of which, were on the head and the remaining on the other parts of body. These injuries proved instantaneously fatal. He submitted that though a vague and a bald suggestion was given by the defence to the prosecution witnesses that the field where, the incident took place, was owned by the appellant Shiva but when he himself was subjected to questioning under Section 313 Cr.P.C., 1973 he did raise any such plea or defence. He further pointed out that no document was presented on the record of the case by the defence to suggest that the field in question was owned by the appellant. He contended that in arguendo, even if it is assumed that the field was of joint ownership and possession, the accused had no right to take law in his own hands and launch an unprovoked brutal assault merely because the deceased started ploughing the same. On these grounds, he implored the court to dismiss the appeal and affirm the impugned judgement. 6. We have considered the rival submissions advanced at the Bar and have minutely sifted through the evidence available on record and have re appreciated the same. 7. The prosecution case is founded on the statements of PW-10 Bhurki, PW-11 Chamnaram, PW-16 Shahadat Khan and PW-18 Smt. Bhanwari @ Mautki, all of whom, are eye-witnesses to the incident. Smt. Bhanwari @ Mautki being wife of the deceased also received injuries in the very same incident. These witnesses, in their examination-in-chief, stated in unequivocal terms that the deceased Kupa Ram and Smt. Bhanwari @ Mautki were getting the field cultivated through Shahadat Khan when the appellant came around and without any justification, threatened and disallowed Shahadat Khan from ploughing the same. These witnesses, in their examination-in-chief, stated in unequivocal terms that the deceased Kupa Ram and Smt. Bhanwari @ Mautki were getting the field cultivated through Shahadat Khan when the appellant came around and without any justification, threatened and disallowed Shahadat Khan from ploughing the same. Thereafter, he launched an unprovoked brutal assault with a lathi on Smt. Bhanwari and Kupa Ram. Nothing was elicited in the cross examination of these witnesses which can be considered as shaking the veracity of their evidence. 8. At the relevant time, Bhurki (PW-10) and Chamnaram (PW-11) were also working in the adjoining field and admittedly, they have no animus against the accused so as to falsely implicate him in the case. PW-18 Smt. Bhanwari @ Mautki herself received injuries in the very same incident and thus, she is the most natural eye-witness of the incident. She categorically denied the suggestion given by the defence that any prior land dispute was going on between her husband and the appellant herein. Therefore, the endeavor of the appellant in trying to restrain Shahadat Khan from ploughing the field speaks volumes about his high handedness. Even if it is assumed for a moment and for argument's sake that the appellant had joint ownership over the field in question and had a share therein and that the deceased was cultivating the same without his permission, then also, the appellant had no right to take the law in his own hands and mercilessly assault the deceased and his wife. He could have approached the authorities to seek a restrained order. The Medical Officer PW-12 Dr. Sudhir noted the following injuries on the body of the deceased. 1. Blood was oozing out and was clotted on the left side of the head; 2. The left side parietal bone was fractured and the adjoining facial features were mutilated; 3. Lacerated wound measuring 5.0X3.0X1.5 cm on the left side of the head. 4. Radius and ulna bones of the left hand were broken; 5. Lacerated wound measuring 4.5X2X0.8 cm on the left arm; 6. Lacerated wound measuring 4.0X2.0X0.8 cm on the right hand; 7. Haematoma measuring 4.0X3.0 cm was observed on the left side of the head. 9. Injuries Nos.1, 2 and 7 were opined to be sufficient in the ordinary course of nature to cause death. The Medical Officer affirmed that the injuries could be caused by forceful blows of a lathi. Lacerated wound measuring 4.0X2.0X0.8 cm on the right hand; 7. Haematoma measuring 4.0X3.0 cm was observed on the left side of the head. 9. Injuries Nos.1, 2 and 7 were opined to be sufficient in the ordinary course of nature to cause death. The Medical Officer affirmed that the injuries could be caused by forceful blows of a lathi. Nothing significant was elicited in the cross examination conducted from the Medical Officer. On a perusal of the cross examination conducted from the Investigating Officer, (PW-15) Devi Lal, it is apparent that a bald suggestion was given by the defence that the field where, the incident took place, was in the joint ownership of the father of the accused and the deceased. However the Investigating Officer denied the said suggestion. In this background and if at all, the accused was desirous of taking and proving a plea of right of private defence of property by virtue of Sections 97 and 103 IPC, then, he was required to establish by at least a preponderance of probability that the land in question belonged to him and that he did not have ample time or opportunity to approach the authorities so as to prevent the deceased from cultivating the same. 10. Thus, we have no hesitation in concurring with the findings recorded by the trial court in the impugned judgement that the accused inflicted the fatal blows to the deceased Kupa Ram by a lathi without any right, justification or provocation. 11. The contention of learned counsel Shri Kalu Ram Bhati that the injuries in the nature and dimensions of those noticed on the body of the deceased could not have been caused by a lathi is noted just to be rejected. Suffice it to say that the lathi which was recovered from the accused was broken in four parts and thus apparently, the same was used to inflict blows to the deceased with such a force that it was shattered into splinters. Hence, there is sufficient material on the record to satisfy us that the accused inflicted the fatal injuries to the deceased by repeated and forceful blows of a lathi. Hence, there is sufficient material on the record to satisfy us that the accused inflicted the fatal injuries to the deceased by repeated and forceful blows of a lathi. The contention of Shri Bhati that the accused deserves to be considered for toning down of his conviction from the offence under Section 302 IPC to one under Section 304I IPC is also unacceptable considering the cruel unprovoked manner in which, the accused acted and the forceful repeated blows inflicted by him to deceased Kupa Ram on the vital body part i.e. head which proved instantaneously fatal. 12. Considering the nature, number, location and dimensions of injuries inflicted by the accused to the deceased, who was rightfully cultivating his own field, we feel that neither the case can be brought within the exception to Section 300 Cr.P.C., 1973 nor can accused be considered for giving him the benefit of right of private defence by virtue of Sections 97 and 103 IPC. The precedents cited by Shri Bhati are totally distinguishable because in each of those cases, the occurrence either took place suddenly without premeditation: on the spur of the moment or owing to a genuine or a bonafide existing dispute. In the case of Mana Ram Jat (Supra), there was no evidence to prove as to who caused the fatal inflicted injuries to the deceased. It was further held that the accused had no intention of causing death of the deceased. However, as has been noted above that the accused herein acted in a highly cruel manner while inflicting the repeated blows by a lathi upon the deceased with such a force that the lathi broke into four parts and the skull bones of the deceased were fractured and his face was mutilated resulting into his death. Thus, by the very nature of his acts, the accused can be clothed with the intention to commit murder of Kupa Ram. 13. In this background, none of the precedents cited by the defence counsel are applicable on the facts of the case at hand and are totally disputable. Hence, we are not inclined to treat the case of the accused for toning down the charge from the offence under Section 302 IPC. 14. 13. In this background, none of the precedents cited by the defence counsel are applicable on the facts of the case at hand and are totally disputable. Hence, we are not inclined to treat the case of the accused for toning down the charge from the offence under Section 302 IPC. 14. In wake of discussion made herein above, we are of the view that the trial court appreciated the evidence available on record in a just and apropos manner while reaching to a finding of guilt against the accused appellant. The impugned judgement dated 27.11.2015 ex-facie does not suffer from any illegality, infirmity or irregularity whatsoever warranting interfere in this appeal. Hence the appeal fails and is dismissed as being devoid of merit.