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2022 DIGILAW 1321 (RAJ)

Dalpat Singh v. State

2022-04-27

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT : 1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned. 2. These criminal appeals under Section 374(2) Cr.P.C. have been preferred with the following prayers: Criminal Appeal No. 182 of 1992: "It is, therefore, prayed that this Hon’ble court will be pleased to call for the record of the lower court, peruse the same and after perusal, quash the conviction and sentences, acquit the accused of the offence or pass any other orders that this Hon’ble court deems fit and proper.” Criminal Appeal No. 191 of 1992: "It is, therefore, prayed that this appeal may kindly be accepted, the conviction and sentences passed against the accused appellants be set aside and quashed and they may be acquitted of all the charges levelled against them.” 3. Both the appeals arise out of a common controversy, and therefore, for the sake of brevity, the facts in brief, as jointly submitted by learned counsel for both parties, are that Bal Kishan (now deceased)-appellant No.2 in Criminal Appeal No.182 of 1992 (hereinafter referred to as “the first appeal”), and Om Prakash, victim who died as a consequence of the incident in question, were brothers. Dalpat Singh s/o Bal Kishan-deceased-appellant no.2, lodged an F.I.R. bearing No. CR/30/90 at Police Station, Mandore, Jodhpur stating therein that on 05.08.1990, the appellants no. 1 and 2, Bhanwarlal and Mahesh Kumar, in Criminal Appeal No. 191 of 1992 (hereinafter referred to as “the second appeal”) were throwing ‘Bajri’ / sand, which was lying in front of their residence, into the water, at which time Bal Kishan intervened and restrained them. And that, subsequently, Bhanwarlal and Mahesh returned with Jitendra, the appellant no.3 in the second appeal, to the home of Bal Kishan and Dalpat Singh, armed with axes & other weapons, and inflicted injuries on Bal Kishan, Dalpat Singh and his uncle-Om Prakash. Om Prakash died as a result of the scuffle, while Bal Kishan and Dalpat Singh sustained a number of injuries. And that, subsequently a challan was filed against the appellants (in the second appeal), under Sections 302, 307, 323/34 & 324/34 I.P.C. Pursuant to which, a counter F.I.R., alleged to have been filed by the appellants (in the second appeal), bearing no. And that, subsequently a challan was filed against the appellants (in the second appeal), under Sections 302, 307, 323/34 & 324/34 I.P.C. Pursuant to which, a counter F.I.R., alleged to have been filed by the appellants (in the second appeal), bearing no. 31/90, whereafter a challan was filed against the appellants (in the first appeal) under Sections 325/34 and 324/34 and 323 I.P.C. 4. Learned Senior Counsel, Mr. J.S. Choudhary assisted by Mr.Pradeep Choudhary, appearing on behalf of the appellants (in the first appeal) submitted that both the appeals have been preferred against the convictions and sentenced awarded to the respective appellant(s) by the learned court below. 4.1 Learned Senior Counsel further submitted that the learned Court below charged and convicted the appellants (in the first appeal) after finding that the wounds on the appellants (in the second appeal) were lacerated wounds caused by a blunt weapon, else the learned Court below would have proceeded against them under Section 326 I.P.C. Relevant Sections of the I.P.C. read as follows:- 320. Grievous hurt.— The following kinds of hurt only are designated as “grievous”:— First.—Emasculation. Secondly.—Permanent privation of the sight of either eye. Thirdly.—Permanent privation of the hearing of either ear. Fourthly.—Privation of any member or joint. Fifthly.—Destruction or permanent impairing of the powers of any member or joint. Sixthly.—Permanent disfiguration of the head or face. Seventhly.—Fracture or dislocation of a bone or tooth. Eighthly.—Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits 325. Punishment for voluntarily causing grievous hurt.— Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 326. Punishment for voluntarily causing grievous hurt.— Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 326. Voluntarily causing grievous hurt by dangerous weapons or means.— Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 4.2 Learned Senior Counsel also submitted that the deceased, Om Prakash, passed away as a consequence of falling down and sustaining a head injury as a result of the scuffle between the two sets of appellants, and not as a consequence of any action of the appellants (in the first appeal). 4.3 Learned Senior Counsel further submitted that all the witnesses, supporting the case of the appellants (in the second appeal) are their family members, and that their testimonies, therefore, cannot be relied upon. 4.4 Learned Senior Counsel further submitted that the incident in question was in fact, a result of enraged tensions between the two sets of appellants, and took place in the heat of the moment. 4.5 Learned Senior Counsel thus submitted that the injuries sustained by the appellants in the first appeal have not been taken into consideration in the version of the prosecution, and that therefore, the genesis of crime cannot be made out in the case since the injuries sustained by the accused appellants have been proven and yet have not been taken into consideration. 4.6 Learned Senior Counsel placed reliance on the following judgment rendered by the Hon’ble Apex Court in Lakshmi Singh Vs. State of Bihar 1976 1 SCC (Cri) 671 and Shiv Karan Vs. 4.6 Learned Senior Counsel placed reliance on the following judgment rendered by the Hon’ble Apex Court in Lakshmi Singh Vs. State of Bihar 1976 1 SCC (Cri) 671 and Shiv Karan Vs. State of Rajasthan 1998 0 SCC (Cri) 712, and the judgment rendered by a Division Bench of this Court, at Jaipur in Dhanpat Vs. State of Rajasthan1987 0 RLW (Raj.) 559 wherein the following observations were made:- In Lakshmi Singh (supra), “It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar 1968 Cri LJ 1479 tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows: The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants. Under these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants. This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : reported in AIR 1975 SC 1674 which was also a murder case, this Court, while following an earlier case, observed as follows: In State of Gujarat v. Bai Fatima Criminal Appeal No 67 of 1971 decided on March 19, 1975 : reported in 1975 Cri LJ 1079 one of us (Untwalia, J., speaking for the Court, observed as follows: In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version: (2) that 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; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in 1975CriLJ1079 there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.” 5. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.” 5. Learned counsel for the appellants in the second appeal submitted that Om Prakash, the deceased victim, intervened in the scuffle between the two sets of appellants, only to stop both sets of appellants, and as a result of the same, died. 5.1 Learned counsel further submitted that as a consequence of the head injury suffered by Om Prakash, he became unconscious and remained in the hospital for a period of about 5 days before succumbing to his injuries. 5.2 Learned counsel also submitted that the post mortem report of deceased Om Prakash (Ex.19), reveals that he passed away as a result of a head injury suffered in consequence to the scuffle that took place between the two sets of appellants herein, and that the deceased victim, also suffered a fracture and lacerated wounds in a zig-zag nature. 5.3 Learned counsel also submitted that the learned Court below proceeded with framing of charge and trial, and subsequent conviction under Section 325 I.P.C . against the appellants in the first appeal, only because the weapon involved were axes and hockey sticks. And that, the learned Court below has incorrectly passed the impugned judgment, without taking into due consideration the overall facts and circumstances of the case. 5.4 Learned counsel further submitted that the P.W. 6, Surender Singh, the independent witness, submits that he was not able to see what actually had transpired during the scuffle between the two sets of appellants, and also could not depose specifically as to who caused a particular injury. 5.5 Learned also submitted that when an offence under Section 325 I.P.C. is made out, and injuries are suffered on vital parts, then the benefit of probation, cannot be extended to the accused, neither under Section 360 Cr.P.C nor under the Probation of Offenders Act, 1958. 5.6 Learned counsel, in support of the above made submission, placed reliance on the judgments rendered by the Hon’ble Apex Court in Mukeshbhai Gopalbhai Barot Vs. State of Gujarat 2010 Cri. 5.6 Learned counsel, in support of the above made submission, placed reliance on the judgments rendered by the Hon’ble Apex Court in Mukeshbhai Gopalbhai Barot Vs. State of Gujarat 2010 Cri. L.J. 4721 (SC) wherein the following observations were made:- In Mukeshbhai Gopalbhai “We have considered the arguments advanced by the learned Counsel for the parties. At the very outset, we must deal with the observations of the High Court that the dying declarations Ex.44 and 48 could not be taken as evidence in view of the provisions of Section 161 and 162 of the Cr.P.C. when read cumulatively. These findings are, however, erroneous. Sub-section (1) of Section 32 of the Indian Evidence Act, 1872 deals with several situations including the relevance of a statement made by a person who is dead. The provision reads as under: Section 32. Cases in which statements of relevant fact by person who is dead or cannot be found, etc., is relevant. – Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount o delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) When it relates to cause of death. – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. We see that the aforesaid dying declarations are relevant in view of the above provision. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. We see that the aforesaid dying declarations are relevant in view of the above provision. Even otherwise, Section 161 and 162 of the Cr.P.C. admittedly provide for a restrictive use of the statements recorded during the course of the investigation but Subsection (2) of Section 162 deals with a situation where the maker of the statement dies and reads as under: (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act. 5. A bare perusal of the aforesaid provision when read with Section 32 of the Indian Evidence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declarations Ex.44 and 48 had no evidentiary value, therefore, is erroneous. In this view of the matter, the first dying declaration made to the Magistrate on 14th September 1993 would, in fact, be the First Information Report in this case.” 6. Learned Senior Counsel appearing on behalf of the appellants in the first appeal, in his rejoinder, reiterated upon the fact that both appeals, as aforementioned, have been preferred against the individual convictions of the appellants therein. And that, therefore, the contentions made by the learned counsel for the appellants in the second appeal, against the appellants in the first appeal, are ultra vires their prayer and therefore, not maintainable in their appeal, before this Court. 7. Learned counsel for the appellants in both the appeals submitted that since accused Balkishan, as mentioned above, has already expired and accused Mahesh and Jitendra have already been extended the benefit of the Probation of Offenders Act (vide the impugned judgment itself), therefore, no adjudication may be made in regard to their case. 8. 7. Learned counsel for the appellants in both the appeals submitted that since accused Balkishan, as mentioned above, has already expired and accused Mahesh and Jitendra have already been extended the benefit of the Probation of Offenders Act (vide the impugned judgment itself), therefore, no adjudication may be made in regard to their case. 8. Learned Public Prosecutor opposes the submissions made by learned counsel for the appellants in both the appeals, on the ground that the learned Court below has passed the impugned judgment after taking into due consideration all the facts and circumstances of the case, and therefore, does not suffer from any legal infirmity. 9. Heard learned counsel for the parties and, perused the record of the case and the judgments cited at the Bar. 10. This Court observes that the learned Court below has passed a detailed and speaking judgment, after taking into consideration the overall facts and circumstances of the case. The learned Court has rightly observed that the statement of Dr. Dharmendra Sharma, who conducted the post mortem analysis on the body of the deceased victim, Om Prakash indicates that the death occurred due to head injury sustained by Om Prakash, but however, the cause of the same could not be directly attributed to the appellants in the first appeal. Furthermore, the testimony rendered by Dr. Jagdish Jugtawat, was to the effect that there were wounds and bruises on the head and right eye of the deceased victim, which were injuries of a simple nature. 10.1 The learned Trial Court also recorded a clear finding that, from the evidences placed before it, it was not possible to ascertain which of the concerned parties, acted in self defense and which initiated the incident in question. And that, there were tensions between the parties herein, with regard to the ‘bajri’ in question. 10.2 The learned Trial Court has further recorded that the testimony rendered by Bal Kishan (now deceased), was riddled with inconsistencies and did not inspire confidence of the Court. 10.3 The learned Trial Court also found that Bal Kishan had in fact encroached upon certain lands, and dumped the ‘bajri’ / sand on other part of the public way. And that tensions arose when the appellants, in the first appeal, began to continue to utilize the way and traverse over the ‘bajri’/sand culminating into the incident in question. 11. 10.3 The learned Trial Court also found that Bal Kishan had in fact encroached upon certain lands, and dumped the ‘bajri’ / sand on other part of the public way. And that tensions arose when the appellants, in the first appeal, began to continue to utilize the way and traverse over the ‘bajri’/sand culminating into the incident in question. 11. This Court therefore finds that the learned Court, has passed the impugned judgment, dated 11.05.1992, after a thorough analysis of the overall facts and circumstances and appreciating the evidence on record, had rightly convicted the appellants in both the appeals for the offences mentioned therein. 12. This Court, however, takes note of the fact that the matter pertains to the year 1990 and the present appeals have been pending since the year 1992. 13. Furthermore, the sentences awarded to the appellants in both the appeals, namely in S.B. Criminal Appeal No. 182/1992 and S.B. Criminal Appeal No. 191/1992 were suspended by this Court vide order 13.05.1992 in S.B. Criminal Misc. Bail Application No. 234/1992 and vide order dated 19.05.1992 passed in S.B. Criminal Bail No. 244/1990, respectively. 14. This Court is conscious of the judgments rendered in, Alister Anthony Pareira Vs. State of Maharashtra (2012) 2 SCC 648 and Haripada Das Vs. State of W.B. (1998) 9 SCC 678 wherein the Hon’ble Apex Court observed as under:- Alister Anthony Pareira (Supra) “There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.” Haripada Das (Supra) “…considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17-1-1986, we feel that the ends of justice will be met in the facts of the case if the sentence is reduced to the period already undergone…” 15. In view of the above and keeping in mind the aforementioned precedent laws, the present appeals are partly allowed. Accordingly, while maintaining the appellants’ (Dalpat Singh & Bhanwarlal) convictions under the Sections 325/34 and 324/34 & 323/34; 325 & 324 I.P.C. respectively, as recorded in the impugned judgments dated 11.05.1992 (in Sessions Case No.185/90 & 187/90) the sentence awarded to them is reduced to the period already undergone by them. The said appellants are on bail, as above mentioned. They need not surrender. Their bail bonds stand discharged accordingly. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.