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2022 DIGILAW 2325 (RAJ)

State Of Rajasthan v. Dashrath

2022-08-30

PANKAJ BHANDARI, SAMEER JAIN

body2022
JUDGMENT 1. State has preferred D.B. Criminal Appeal No.66/1986 aggrieved by the judgment and sentence dated 02.05.1985 whereby accused Lal Chand has been acquitted, accused Kajod has been given benefit of probation and whereby accused Dashrath, Devraj, Ram Lal and Kajod have been acquitted for offence under Section 302/149 of IPC, however, accused Dashrath, Devraj and Ram Lal have been convicted for offence under Sections 147, 304 Part-II read with Section 149 IPC and accused Kajod has been convicted for offence under Sections 147, 324/149 of IPC. 2. Appellant - Dashrath has preferred D.B. Criminal Appeal No.238/1985 and accused Devraj has preferred D.B. Criminal Appeal No.248/1985 aggrieved by the judgment of conviction dated 02.05.1985 for offence under Section 147 and Section 304 Part-II read with Section 149 IPC. 3. Succinctly stated the facts of the case are that Avtar Singh (PW-7) lodged an FIR on 19.07.1983 alleging therein that Dashrath, Devraj, Kajod, Om, Ram Lal, Mohan and Lal Chand have given beating to his father. The police after due investigation submitted charge-sheet against Dashrath, Lal Chand, Kajod, Ram Lal and Devraj for offence under Sections 147, 302, 302/34, 302/149 of IPC. The accused denied the charges and sought trial. On behalf of the prosecution as many as 12 witnesses were examined and explanation of the accused was recorded under Section 313 Cr.P.C. On behalf of defence, 7 witnesses were examined as DW-1 to DW-7. Learned trial Court after hearing the parties has acquitted accused Lal Chand, Kajod has given benefit of probation and has convicted Dashrath, Devraj and Ram Lal for offences under Section 147 IPC and Section 304 Part-II read with Section 149 of IPC and has sentenced them to 5 years rigorous imprisonment and a fine of Rs.500/-, on non-payment of the fine, to further undergo 5 months simple imprisonment for offence under Section 304 Part-II read with Section 149 IPC and has sentenced to 6 months imprisonment for offence under Section 147 of IPC and a fine of Rs.200/-, aggrieved by which the appellants Dashrath and Devraj have preferred D.B. Criminal Appeal Nos.238/1985 and 248/1985 respectively and aggrieved by the judgment of acquittal and of conviction under Section 304 Part-II instead of Section 302 IPC, State has preferred D.B. Criminal Appeal No.66/1986. 4. Accused Ram Lal and Kajod have expired. On account of their death, appeal filed by the State qua Ram Lal and Kajod was abated. 4. Accused Ram Lal and Kajod have expired. On account of their death, appeal filed by the State qua Ram Lal and Kajod was abated. The present State appeal now confines to accused appellants - Lal Chand, Dashrath and Devraj only. 5. All these appeals arise out of the judgment and sentence dated 02.05.1985, hence, all are being decided by this common order. 6. Learned Additional Government Counsel appearing for the State contended that deceased - Charan Singh had sustained as many as 34 injuries, out of which 21 were incised wounds and there were more than 8 fractures, which clearly goes to show that the intention of the accused was to commit the offence of murder. It is also contended that the trial Court has erred in convicting appellants - Dashrath and Devraj for offence under Section 304 Part-II of IPC and has further erred in acquitting Lal Chand. It is argued that the case clearly falls under Section 300 Clause-III of IPC. It is further contended that an axe and 2 paltas were recovered from Dashrath. It is argued that deceased Charan Singh died due to cumulative effect of all the injuries and when there were specific allegations against all the accused in the first information report filed by son of the deceased Avtar Singh (PW-7), there was no justification for the Court below to acquit the accused - Lal Chand and to convict the appellants for offence under Section 304 Part-II of IPC. Learned Additional Government Advocate has placed reliance on State of Madhya Pradesh v. Goloo Raikwar & Anr.: AIR 2016 SC 1182 . 7. Learned counsel appearing on behalf of accused appellants - Dashrath and Devraj contends that Dashrath received as many as 12 firearm injuries, Devraj received 5 firearm wounds, Kajod received 1 firearm injury and Lal Chand received 8 firearm injuries, which have not been explained by the prosecution. It is only after the deceased fired at the appellants that the villagers attacked the deceased and gave him beating, as a result of which, he expired. It is argued that after having received firearm injuries, the appellants were not in a position to retaliate or attack the deceased. It is only after the deceased fired at the appellants that the villagers attacked the deceased and gave him beating, as a result of which, he expired. It is argued that after having received firearm injuries, the appellants were not in a position to retaliate or attack the deceased. With regard to Lal Chand, it is contended that no injury is assigned to Lal Chand, no recovery was made from him, no weapon is stated to be with Lal Chand and his blood stained clothes were recovered, but were not sent for FSL. Lal Chand has received 8 gunshot wounds and merely because blood stained clothes were recovered, it cannot be presumed that the blood stains was that of the accused. 8. It is contended by the counsel for accused appellants - Dashrath and Devraj that since the appellants have received gunshot injuries, there was no justification for the Court below to convict the appellants for offence under Section 304 Part-II of IPC. It is contended by counsel for appellant - Dashrath that first information to the police was given by Dashrath and FIR number was 81/1983 and thereafter, FIR of the present case i.e. FIR No.82/1983 was lodged. In the FIR lodged by Dashrath, it was specifically mentioned that Charan Singh Sardar has fired at Dashrath, due to which, many persons have sustained gunshot injuries. Counsel for the accused appellants has placed reliance on the judgment of this Court in D.B. Criminal Revision Petition No.132/1984: Mohammad Noor v. Bhanwar Lal & Ors. and one other connected matter decided on 19.07.2022. 9. We have considered the contentions and have carefully perused the material on record. 10. The prosecution case rests on the evidence of Avtar Singh (PW-7), son of the deceased, who is aged about 15 years. On the Parcha Bayan of Avtar Singh, FIR has been lodged. Avtar Singh (PW-7) in the FIR has mentioned the name and father's name of the accused and place to which they belonged. Avtar Singh (PW-7) has not stated anything about the gunshot injuries being caused to the accused. However, in the court statement, Avtar Singh has stated that the gun was with Mohan and as to who fired the pistol, he is not aware. It is evident that incident took place near a Village Haat in which as per different versions of the witnesses, there were between 600 to 1000 persons. However, in the court statement, Avtar Singh has stated that the gun was with Mohan and as to who fired the pistol, he is not aware. It is evident that incident took place near a Village Haat in which as per different versions of the witnesses, there were between 600 to 1000 persons. No independent witness has been examined on behalf of the prosecution and it is on the solitary evidence of Avtar Singh (PW-7) that three accused have been convicted under Section 304 Part-II, one has been convicted but benefit of probation has been given and one has been acquitted. It is pertinent to mention that initial report, which was lodged with the police, was lodged by Dashrath wherein he has specifically alleged that deceased Charan Singh fired upon him on which he received various gunshot wounds. He along with other persons also sustained gunshot wounds. 11. Contention of counsel for the accused that after Charan Singh fired at the accused - Dashrath and other persons sustained pellet wounds, on which, the villagers got enraged and attacked Charan Singh cannot be brushed aside lightly for the very reason that Dashrath has sustained gunshot injuries and was shifted in the bus to a hospital where he was examined by a doctor. In the explanation given by the accused, they have specifically mentioned that deceased Charan Singh fired at Dashrath and many persons received gunshot wounds. Exhibit D-6 is the injury report of Dashrath as per which he received as many as 12 gunshot wounds. Gunshot wounds were received at left side of forehead, on front of neck, on left side of chest, on upper 1/2 of right forearm, in right arm, in back of middle finger, lower 1/3 left forearm, in front of middle of left thigh, in upper 1/3 of right thigh and in front of right knee. There was also swelling in all the wounds. 12. After receiving so many gunshot wounds at different parts of the body, it is highly improbable that Dashrath would have caused injuries to deceased Charan Singh. Nagesh Joshi (DW-2), who is the doctor and examined the accused persons, has stated in his evidence that he has examined Dashrath and as per the gunshot wounds that he has sustained, his condition must have been extremely painful and he would not be in a position to move. Nagesh Joshi (DW-2), who is the doctor and examined the accused persons, has stated in his evidence that he has examined Dashrath and as per the gunshot wounds that he has sustained, his condition must have been extremely painful and he would not be in a position to move. Looking to the medical condition of accused Dashrath, which is established from Exhibit D-6 and the statement of doctor - Nagesh Joshi (DW-2), it can be inferred that the prosecution's version, which is silent about the use of firearm, is not sterling worth. Nagesh Joshi (DW-2) on the same day had examined Kajodi Lal, who had also received one gunshot wound, muscle deep below the left ear. Witness also examined Devraj, who had received five gunshot wounds and Lal Chand, who had received 8 gunshot wounds. Nagesh Joshi (DW-2) on the same day had also examined Ram Lal, who had received one gunshot wound, which was cavity deep in the right maxillary region and that he has opined that injury was grievous. The injury report of Ram Lal has been exhibited as Exhibit D-16. Thus, from the perusal of the statement of Nagesh Joshi (DW-2) and Exhibit D-6 injury report of Dashrath, Exhibit D-13 injury report of Kajodi Lal, Exhibit D-14 injury report of Devraj, Exhibit D-15 injury report of Lal Chand and Exhibit D-16 injury report of Ram Lal, it is evident that all the accused sustained gunshot injuries; Dashrath sustained 12 gunshot wounds, Devraj sustained 5 gunshot wounds, Kajod and Ram Lal each sustained 1 gunshot wound and Lal Chand sustained 8 gunshot wounds. The prosecution has utterly failed to explain the gunshot wounds sustained by the accused. 13. State of Madhya Pradesh v. Goloo Raikwar & Anr. (supra) reliance upon which has been placed by the learned Additional Government Advocate does not apply to the facts of the present case as we have come to the conclusion that the genesis of the crime has not been properly placed before the Court and the gunshot wounds sustained by all the accused persons have not been explained by the prosecution. No independent witness has been produced by the prosecution even when there were 600 to 1000 persons present near the place of occurrence. No independent witness has been produced by the prosecution even when there were 600 to 1000 persons present near the place of occurrence. The accused Dashrath against whom there was allegation of causing injuries on the head was not in a position to move and he was shifted in the bus to the nearby hospital and he was the first to lodge the FIR in which he has mentioned that deceased Charan Singh opened fire. The judgment of the Court below thus cannot be sustained. 14. The prosecution story rests on the statement of Avtar Singh (PW-7), who is son of the deceased. It is evident that in the Parcha Bayan, which was lodged by Avtar Singh (PW-7), name and father's name of the accused has been mentioned, however, in his cross-examination, this witness has admitted that he never had any work with Kajod and Ram Lal, that he has never visited Village Reddi, he had no work ever with Dashrath and he had never visited the house of Lal Chand and he had no work whatsoever with Lal Chand. He has specifically stated that prior to the date of the incident, he never had any work with any of the accused persons. Non-explanation of the gunshot wounds on the accused, the fact that Avtar Singh (PW-7), who is a boy aged around 15 years, never had any work with the accused, as also the fact that on the day of occurrence there was a village Haat in which around 600 to 1000 persons were present, the defence put up by the accused that deceased Charan Singh fired at Dashrath and because of the fire, gunshot wounds were received by all the accused and the probability that villagers must have beaten deceased Charan Singh cannot be ruled out. 15. Avtar Singh (PW-7) has shown the presence of Brij Mohan, Chauthmal, Ram Kumar and Satya Narayan at the time of incident. Ram Kumar (PW-1) and Brij Mohan (PW-4) have turned hostile and Chauthmal (PW-5) has stated that when the incident started, he left the place. He has also stated that he is not aware that Dashrath, Kajod, Lal Chand and Devraj received gunshot wounds. Durga Lal (PW-6) and Baba Singh (PW-9) are witnesses, who narrated about some prior enmity between the parties. He has also stated that he is not aware that Dashrath, Kajod, Lal Chand and Devraj received gunshot wounds. Durga Lal (PW-6) and Baba Singh (PW-9) are witnesses, who narrated about some prior enmity between the parties. The fact that there was prior enmity between the parties can be a reason for Charan Singh opening fire on the accused side. Non- explanation of the injuries i.e. gunshot wounds caused to almost all the accused clearly points towards the prosecution concealing the genesis of the crime. The prosecution story is thus not sterling worth and the offence against the accused is not proved beyond reasonable doubt. We, therefore, do not find any force in the appeal preferred by the State and is accordingly, dismissed. 16. As far as appeals preferred by appellants - Dashrath and Devraj are concerned, since Dashrath and Devraj both have received gunshot wounds, which are not explained and as per the doctor, Dashrath was not in a position to move, the fact that he had caused injuries to the deceased becomes doubtful. In the light of the above, the conviction of appellants - Dashrath and Devraj under Section 147 IPC and Section 304 Part-II read with Section 149 IPC cannot be sustained. The appeals preferred by appellants - Dashrath and Devraj are accordingly allowed. They are acquitted from the charges levelled against them and their bail bonds submitted by them stand cancelled. 17. Consequently, D.B. Criminal Appeal No.66/1986 filed by the State is dismissed and D.B. Criminal Appeal Nos.238/1985 and 248/1985 filed by appellants - Dashrath and Devraj are allowed. 18. Appellants, namely, Dashrath and Devraj are directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.