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2022 DIGILAW 2577 (RAJ)

Mana Ram S/o Shri Basta Ram v. tate of Rajasthan

2022-10-12

KULDEEP MATHUR, SANDEEP MEHTA

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JUDGMENT : SANDEEP MEHTA, J. 1. The accused appellants Mana Ram, Banshi Ram, Bhagirath, Mohan Ram and Asha Ram (Mana Ram and Bhagirath, since deceased, appeal abated), were convicted and sentenced as below vide judgment dated 24.07.1989, passed by the Additional Sessions Judge, Nagour, in Sessions Case No. 42/1987: Offence Fine and Sentence Default in payment of Fines 302/149 IPC Life Imprisonment to each accused with a fine in the sum of Rs. 100/- One Month’s Simple Imprisonment to each accused. 147, 148 and 323/149 IPC Six Months’ Simple Imprisonment to each accused. 325/149 IPC Fine of Rs. 100/- to each accused. One Month’s Simple Imprisonment to each accused. All the sentences were ordered to run concurrently. 2. They have preferred this appeal under Section 374(2) Cr.P.C. for assailing their conviction and sentences awarded to them by the learned trial court. 3. Brief facts relevant and essential for disposal of the appeal are noted herein-below. 4. Sunda Ram (PW-13), gave an oral report (Ex.P/37) to the SHO, Police Station Khatu on 16.03.1987 at about 04.45 AM, alleging inter alia that he was a resident of Village Sandila. On the previous night i.e. 15.03.1987, he was sleeping in his house. The house of his brother Poorna Ram is located in close vicinity. Poorna Ram was sleeping on a cot laid inside the courtyard of his house. In late hours of night, he heard the cries of his sister-in-law Dhapudi on which, he went out and saw that Poorna Ram was being assaulted by Mana Ram son of Basta Ram, Banshi Ram son of Mana Ram, Harkaran and Bhagirath sons of Jaga Ram, Ghota Ram son of Bhagirath Ram, Bhiya Ram son of Kana Ram, Mohan Ram son of Shri Surja Ram, Asha Ram son of Shri Dewa Ram all by caste Meghwals, residents of Village Sandila. Mana Ram and Banshi Ram were armed with farsis and others were having lathis. Poorna Ram had fallen on the ground in an injured condition and Dhapudi was lying on top of him in an attempt to save her husband. The informant’s nephew Mangi Lal and his brother Bhagu Ram also made efforts to save the victims. All the accused persons were indulging in the assault. Ghasi Ram and Bhanwara Ram, came to the spot and tried to intervene on which, the assailants went away. The informant’s nephew Mangi Lal and his brother Bhagu Ram also made efforts to save the victims. All the accused persons were indulging in the assault. Ghasi Ram and Bhanwara Ram, came to the spot and tried to intervene on which, the assailants went away. His brother Poorna Ram had been given a farsi blow on his head and was bleeding profusely. Blunt weapon injuries were noticeable on left side of abdomen and the chest area. They lifted Poorna Ram and placed him on a cot but by that time, he had expired as a result of injuries inflicted to him. Mangilal, Bhagu Ram and Dhapudi, also received injuries in the self same incident. It was alleged that the reason behind the assault was a quarrel which happened couple of days earlier, the accused Tola Ram and the informant’s nephew Banshi over a trivial incident while playing Gher at Holi. The accused persons got enraged by this incident and as a result thereof, they assaulted and killed Poorna Ram. 5. On the basis of this report, an FIR (Ex.P/34, No. 7/1987), came to be registered at the Police Station Khatu, District Nagour for offences punishable under Sections 302, 323, 325, 147, 148 and 149 IPC. Investigation was undertaken by Shri Chiranji Lal (PW-18), SHO, Police Station Khatu, who proceeded to the place of incident and conducted following steps of investigation: 1. Examined the place of incident and prepared Site Inspection Plan (Ex.P/8) and Haalat Mauka (Ex.P/7) 2. Prepared the Fard Surat Haal Laash (Ex.P/9) 3. Seized clothes of the deceased and recorded the same in Seizure Memo Ex.P/10. 4. Prepared the Panchnama (Ex.P/11) and with the consensus of the Panchas, determined the cause of death to be head injury. 6. The dead-body of Poorna Ram was forwarded to the Government Hospital, Jayal for autopsy. His blood stained clothes were seized. The accused were arrested and in furtherance of their disclosure statements under Section 27 of the Evidence Act, recoveries were effected, which are noted herein-below in a tabular form for the sake of ready reference. The seized articles were forwarded to the FSL, Jaipur for Serological examination: S. No. Name of the Appellant Information Memo Details of Information Memo Recovery Memo Details of Recovery Memo 1. The seized articles were forwarded to the FSL, Jaipur for Serological examination: S. No. Name of the Appellant Information Memo Details of Information Memo Recovery Memo Details of Recovery Memo 1. Bhagirath Ex.P38 dated 18-03-87 at 07:30 AM Pertaining to the place where blood covered lathi (stick) had been hidden Ex.P6 dated 19-03-87 One blood stained lathi (stick). 2. Mana Ram Ex.P42 dated 20-03-87 Pertaining to the place where blood covered lathi (stick) had been hidden Ex.P2 dated 21-03-87 One used and old bamboo stick (lathi) black in color and had been inscribed with ‘2’ on the bottom part of the stick which had a blood stain as well. 3. Banshi Ram Ex.P43 dated 20-03-87 at 07:45 AM Pertaining to the place where blood covered pharsi (sickle) was attached to a black colored stick, had been hidden Ex.P3 dated 21-03-87 One blood stained pharsi (sickle) was attached to a black colored stick. 4. Mohan Ram Ex.P44 dated 01-04-87 at 09:00 AM Pertaining to the place where a bordi tree (Indian Jujube) stick which had been wrapped in white colored leather, had been hidden Ex.P13 dated 02-04-87 One ber tree stick which had been encased in white colored leather. 5. Asha Ram Ex.P45 dated 18-04-87 at 06:00 AM Pertaining to the place where a bordi tree(Indian Jujube) stick which had been wrapped in white colored leather, had been hidden Ex.P46 dated 18-04-87 One ber tree crooked stick which had its bark peeled and hanging out. The stick was thick on one end and thin on the other. 6. Ghisa Ram Ex.P39 dated 18-03-87 at 08:00 AM Pertaining to the place where blood covered lathi (stick) had been hidden Ex.P4 dated 19-03-87 One blood stained 6ft lathi (stick) which was from ber tree and had its bark peeling tapered 7. Bhiya Ram Ex.P40 dated 19-03-87 at 08:00 AM Pertaining to the place where blood covered lathi (stick) had been hidden Ex.P5 dated 21-03-87 One babool tree stick which had its bark peeling tapered. The stick was 5½ ft. long. 8. Harkaran Ex.P41 dated 20-03-87 at 08:00 AM Pertaining to the place where lathi (stick) had been hidden Ex.P1 dated 21-03-87 One blood stained lathi (stick) which was used and old. 7. The stick was 5½ ft. long. 8. Harkaran Ex.P41 dated 20-03-87 at 08:00 AM Pertaining to the place where lathi (stick) had been hidden Ex.P1 dated 21-03-87 One blood stained lathi (stick) which was used and old. 7. After concluding investigation, the SHO proceeded to file a charge-sheet against eight accused persons namely; Mana Ram son of Basta Ram, Banshi Ram son of Mana Ram, Harkaran son of Mana Ram, Bhagirath son of Jaga Ram, Ghasi Ram son of Bhagirath, Bhiya Ram son of Kana Ram, Mohan Ram son of Surja Ram and Asha Ram son of Deva Ram, all by caste Meghwal, for the offences punishable under Sections 302, 325, 323, 147, 148 and 149 IPC. As the offence punishable under Section 302 IPC, was Sessions triable, the case was committed to the court of Additional Sessions Judge, Nagour for trial. 8. The learned trial court, framed charges against all eight accused persons for the offences mentioned above. They pleaded not guilty and claimed trial. The prosecution examined as many as 18 witnesses and exhibited 47 documents to prove its case. The accused were questioned under Section 313 Cr.P.C. and when confronted with the allegations appearing against them in the prosecution case, they claimed to be innocent and stated that they had been falsely implicated in the case. One witness was examined in defence. Upon hearing the arguments advanced by the prosecution and the defence counsel and appreciating the evidence available on record, the learned trial court, proceeded to acquit three accused persons namely Harkaran, Ghasi Ram and Bhiya Ram from the charges. However, five original appellants were convicted and sentenced as above upon which, the instant appeal has been preferred under Section 374(2) Cr.P.C. It may be reiterated that the accused appellant No. 1 Mana Ram and the accused appellant No. 3 Bhagirath, passed away during pendency of the appeal and hence, the appeal to their extent, stands abated. 9. Learned counsel Shri S.L. Jain and Shri S.R. Sharma, representing the appellants, vehemently and fervently contended that the entire prosecution case is false and fabricated. The prosecution witnesses were bearing ill will against the accused appellants and they gave patently false evidence while implicating the accused appellants for the alleged incident. The testimony of the material prosecution witnesses is contradicted by the medical evidence. When Dr. The prosecution witnesses were bearing ill will against the accused appellants and they gave patently false evidence while implicating the accused appellants for the alleged incident. The testimony of the material prosecution witnesses is contradicted by the medical evidence. When Dr. Phool Chand (PW-10) carried out postmortem, only a single blunt weapon injury was found on the body of the deceased Poorna Ram and thus, the allegation of the prosecution witnesses that as many as eight accused persons rained indiscriminate blows on Poorna Ram, is falsified. The accused Mana Ram also received significant injuries in the self same incident and the prosecution did not offer any explanation for his injuries and hence, the testimony of the eye-witnesses deserves to be discarded. Their alternative submission was that even if the allegations levelled by the prosecution eye-witnesses are to be accepted, then also, apparently their testimony is corroborated only to the extent of a solitary injury inflicted on the head of Shri Poorna Ram. None of the witnesses, made specific allegation against any of the accused appellants regarding the said head injury. The incident took place at the spur of the moment without any premeditation and thus, involvement of the accused appellants in this case with the aid of Section 149 IPC, is totally unjustified. They further submitted that even the allegations levelled by the prosecution eye-witnesses in their sworn testimony were to be accepted, the accused can at best be held guilty for the offence punishable under Section 325 IPC. On these grounds, learned defence counsel implored the Court to accept the appeal, set aside the impugned judgment and acquit accused appellants of the charges. 10. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellants’ counsel. He urged that the witnesses Mangilal (PW-1), Dhapudi (PW-12) and Bhagu Ram (PW-3), themselves, received injuries in the same incident. They gave unimpeachable testimony against the accused and remained unshaken from their stance, despite prolonged cross-examination. They had no enmity whatsoever with the accused persons which could instigate them to falsely implicate the appellants for the incident. The accused appellants assaulted the unarmed victim Shri Poorna Ram without any provocation. A grave injury was inflicted on the head of Shri Poorna Ram, which was specifically attributed by the injured witnesses Smt. Dhapudi (PW-12) to the accused Banshi Ram. The accused appellants assaulted the unarmed victim Shri Poorna Ram without any provocation. A grave injury was inflicted on the head of Shri Poorna Ram, which was specifically attributed by the injured witnesses Smt. Dhapudi (PW-12) to the accused Banshi Ram. The witness also alleged that the other accused persons also rained indiscriminate blows upon her husband. She, her son Mangilal and Bhagu Ram intervened and tried to save Poorna Ram on which, they too were beaten and received numerous injuries in the same incident. Thus, it is apparent that the accused persons formed an unlawful assembly and launched the premeditated assault on the victim Poorna Ram and his family members, with the sole objective of killing him. He also drew the Court’s attention to the testimony of the Medical Jurist Dr. Arjun Ram (PW-9), who proved the injuries of Smt. Dhapudi, Bhagu Ram and Mangilal and Dr. Phool Chand (PW-10), who conducted autopsy and issued postmortem report of Shri Poorna Ram and urged that the large number of injuries were caused to the injured persons and the deceased and the medical evidence fully corroborates the testimony of the eye-witnesses and hence, the trial court was perfectly justified in convicting and sentencing the appellants as above. Concluding his arguments, he implored the Court to dismiss the appeal and affirm the impugned judgment of conviction and the sentences awarded to the appellants by the trial court. 11. We have given thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and re-appreciated the evidence thoroughly. We now proceed to analyze and appreciate the evidence of the material prosecution witnesses. 12. The FIR Ex.P/34 was lodged by Sunda Ram (PW-13) on 16.03.1987 at Police Station Badi Khatu, District Nagour at 4.45 AM i.e. soon after the incident. Thus, the report was filed without any delay. Sunda Ram stated on oath that he was sleeping at his house. He heard noise of commotion on which, he came out of his house and saw the eight accused persons abusing Poorna Ram. The informant intervened and requested the accused persons to refrain from indulging in the quarrel but they did not desist. Banshi Ram and Mana Ram started raining blows. Owing to the darkness, the witness could not ascertain whether the assault was made with the sharp side or the reverse side of the Kassi. The informant intervened and requested the accused persons to refrain from indulging in the quarrel but they did not desist. Banshi Ram and Mana Ram started raining blows. Owing to the darkness, the witness could not ascertain whether the assault was made with the sharp side or the reverse side of the Kassi. His sister-in-law Dhapudi, nephew Mangilal and brother Bhagu Ram also reached the place of the incident. Poorna Ram fell down on the ground in an injured condition. The accused persons also assaulted Dhapudi, Bhagu Ram and Mangilal. Ghasi Ram and Bhanwararam also came at the spot. The accused Mana Ram fell down on the stones which were lying at the place of incident. The accused persons went away after assaulting the victims. Poorna Ram was given blows on the abdomen and other parts of the body by Mana Ram, etc. An altercation had taken place between Banshi Ram and Tola Ram on the previous day during playing Gher at Holi festivities and that is why, the accused persons indulged in the assault. The witness proved the FIR Ex.P/34. In cross-examination, the witness denied the defence suggestion that the incident had already taken place before he reached the spot. He was confronted with certain omissions vis-avis his sworn testimony and the FIR Ex.P/34 to which, he offered an explanation that he had given out all the details but he could not explain as to why the specific allegations/overt acts of causing the injuries to the deceased were not mentioned in the FIR. 13. Mangilal (PW-1), being an injured witness, stated that his father was sleeping in the open area outside their house. The accused persons came there and started hurling abuses because of an incident which took place on the previous day. His father told them to refrain from using profanities but, the accused started assaulting Shri Poorna Ram who cried out. On hearing the shouts, he and his mother ran out and saw that his father was being assaulted and had fallen on the ground. He and his mother fell on top of his father in an attempt to save him and the accused inflicted injuries to them as well. Asha Ram gave him a lathi blow on the hand and Ghasi Ram gave him a lathi blow on the chest. Resultantly, his hand got fractured. He and his mother fell on top of his father in an attempt to save him and the accused inflicted injuries to them as well. Asha Ram gave him a lathi blow on the hand and Ghasi Ram gave him a lathi blow on the chest. Resultantly, his hand got fractured. His uncle Bhagu Ram came there on which, he too was assaulted. He, his mother as well as his uncle Bhagu Ram, all received injuries in this incident. His father Poorna Ram expired at the spot as a result of the injuries inflicted to him by the accused. 14. The witness Smt. Dhapudi, upon being examined as (PW-12), stated that her husband was sleeping outside their house. She was sitting nearby. Eight assailants came and started hurling abuses. Her husband requested them to refrain upon which, the assailants launched an indiscriminate assault on him. Banshi Ram gave a farsi blow on the head of her husband and Mana Ram gave a farsi blow on his chest. She tried to intervene for saving her husband on which, she too was assaulted. Her son Mangilal and her brother-in-law Bhagu Ram also came around and tried to save Shri Poorna Ram on which, they too were beaten. Bhagirath gave lathi blow on her hand which got fractured. She received injuries on her hands, back and legs. The accused Mana Ram and Banshi Ram, were armed with farsis. The remaining accused persons were armed with lathis and all participated in the assault. The accused Mana Ram, fell down on the stones while running away and received injuries. Sunda Ram went and reported the matter to the police. She showed her injuries to the doctor. In cross-examination, the witness stated that Banshi Ram and her brother-in-law’s son had quarreled in the Holi Gher and that is why, the incident took place. She was not sure whether the farsi blows were given from the sharp side or the reverse side. Both Mana Ram and Banshi Ram, inflicted injuries on her husband’s head. Mana Ram also inflicted an injury on his chest. 15. Now, we proceed to discuss evidence of the Medical Jurist Dr. Phool Chand (PW-10), who conducted autopsy upon the dead body of Poorna Ram. The doctor stated that a solitary lacerated wound admeasuring 4 cm x 0.5 cm muscle deep was noticed on the right parietal region of the victim. Mana Ram also inflicted an injury on his chest. 15. Now, we proceed to discuss evidence of the Medical Jurist Dr. Phool Chand (PW-10), who conducted autopsy upon the dead body of Poorna Ram. The doctor stated that a solitary lacerated wound admeasuring 4 cm x 0.5 cm muscle deep was noticed on the right parietal region of the victim. The cranium, spinal cord and the right parietal temporal bone, were fractured till the base of the skull. Membranes of the brain were torn and bleeding. A laceration was noticed on the right side of the brain. Cause of death was opined to be the head injury. Apparently, thus, the Medical Jurist, noticed a single injury on the head of the deceased which was caused by a blunt weapon. Resultantly, the case set up by the prosecution eye-witnesses in their evidence that the two assailants Banshi Ram and Mana Ram inflicted Kassi blows on the head and that the remaining assailants also inflicted lathi blows on other body parts of Shri Poorna Ram, is not corroborated but rather contradicted by the evidence of the Medical Jurist. 16. If we consider the allegations as set out in the evidence of the three material eye-witnesses, it becomes clear that the motive for the incident as has been alleged by them, was a trivial quarrel which took place between Banshi Ram and Mana Ram, nephew of the deceased Poorna Ram on the previous day. It is undisputed that this quarrel was the only motive portrayed by the prosecution witnesses for the assault made on Poorna Ram. It is our opinion that it does not stand to reason that the accused would be instigated so intensely owing to a trivial quarrel during Holi Festivities, that they would launch a murderous assault on the family members of Mana Ram and to be specific, his uncle Poorna Ram. Thus, the theory of motive is not very convincing. It rather appears that the prosecution witnesses have suppressed the true genesis of occurrence. As per the pertinent allegations levelled by the prosecution witnesses, the accused Banshi Ram and Mana Ram were armed with farsis (sharp weapon) and the remaining six accused were armed with lathis and that all of them, launched an indiscriminate assault on Shri Poorna Ram, causing him large number of injuries. As per the pertinent allegations levelled by the prosecution witnesses, the accused Banshi Ram and Mana Ram were armed with farsis (sharp weapon) and the remaining six accused were armed with lathis and that all of them, launched an indiscriminate assault on Shri Poorna Ram, causing him large number of injuries. However, this allegation is not corroborated and is rather contradicted by the medical evidence as noted above. It may be stated here that the accused Mana Ram also received injuries in this very incident. Though, the injuries were not very significant but the fact remains that the prosecution witnesses tried to put forth an explanation for these injuries alleging that Mana Ram was running away from the place of incident when he fell down on the stones and got hurt. Darkness was admittedly prevailing at the time of incident and it would not have been possible for the witnesses to have seen how Mana Ram received injuries more particularly, when they were themselves in distress. Thus, the explanation given by the witnesses for the injuries of Mana Ram is not very convincing. It is clear that the prosecution witnesses have concealed the true genesis of the incident. Their evidence is contradicted by the medical evidence on the very material aspect of number of injuries caused to the deceased. The accused persons and the complainant party are residents of the same vicinity and also hail from the same community and had no significant animosity. Hence, it is our firm opinion that it would not be safe to convict the accused persons by invoking the provision of vicarious liability i.e. Section 149 IPC and as a consequence, the court would be required to identify the individual role of the accused persons for fixing their liability qua the charge of murder. The witness Mangilal (PW-1) did not attribute any particular injury caused to the deceased Shri Poorna Ram to any assailant. His testimony qua the specific role of the accused is limited to the injuries which he himself received in the incident. The witness clearly admitted that his father received only one injury on his head. Shri Bhagu Ram (PW-3), stated that Mana Ram and Banshi Ram were armed with farsis and the others were armed with lathis. Mohan Ram inflicted a lathi blow on his hand. The witness clearly admitted that his father received only one injury on his head. Shri Bhagu Ram (PW-3), stated that Mana Ram and Banshi Ram were armed with farsis and the others were armed with lathis. Mohan Ram inflicted a lathi blow on his hand. Regarding the injuries inflicted to Poorna Ram, this witness also gave vague evidence alleging that Poorna Ram received injuries on his head by a farsi, on the abdomen and back by lathis. He pertinently stated that Banshi Ram gave the farsi blow on the head of Poorna Ram. Thus, as per the statement of this witness, the head injury caused to Shri Poorna Ram, is specifically attributed to Banshi Ram, who was armed with a farsi, which is a sharp weapon. Manifestly, there is contradictory version in the evidence of the material witnesses regarding the head injury caused to the deceased Poorna Ram, with Dhapudi alleging that both Banshi Ram and Mana Ram, inflicted the head injury to the deceased and Shri Bhagu Ram, attributing the head injury only to Banshi Ram. Regarding the side from which, the farsi was landed whether sharp or reverse, as the incident took place in the cover of darkness, the witnesses would not be in a position to notice this aspect with certainty. The evidence of the Medical Jurist Dr. Phool Chand (PW-10), makes it clear that only a solitary injury was observed on the head of the deceased and that too was a lacerated wound. Apparently, thus, the evidence of the prosecution witnesses is acceptable only to the extent, they attributed the head injury caused to the deceased Poorna Ram to the accused Banshi Ram. 17. The version of the eye-witnesses wherein, the accused Mana Ram attributed a head injury to the deceased is an exaggeration and deserves to be discarded. The only conclusion, which can safely be drawn after a threadbare appreciation of the prosecution evidence is that an altercation took place between the family members of the opposing functions during the Holi Gher on the previous day. During the night time, verbal abuses were exchanged between the parties whereafter, tempers flared up and a scuffle started and in this sudden quarrel, Banshi Ram inflicted a solitary blow by the reverse side of the farsi on the head of the deceased Shri Poorna Ram, which proved fatal. During the night time, verbal abuses were exchanged between the parties whereafter, tempers flared up and a scuffle started and in this sudden quarrel, Banshi Ram inflicted a solitary blow by the reverse side of the farsi on the head of the deceased Shri Poorna Ram, which proved fatal. Thus, Banshi Ram was singularly liable for the offence under Section 302 IPC. Lathi blows were inflicted by the two surviving accused persons Mohan Ram and Asha Ram to the injured persons namely Dhapudi, Mangilal, Bhagu Ram, resulting into simple as well as grievous injuries and thus, these two accused appellants are liable to be convicted for the offences punishable under Sections 323/34 and 325/34 IPC. Conviction of the accused appellants Asha Ram and Mohan Ram for the offence punishable under Sections 302/149 IPC, 325/149 IPC and 323/149 IPC, is not sustainable in the eyes of law. 18. As a consequence, the appeal deserves to be accepted in part. The impugned judgment is modified. The two surviving accused appellants Mohan Ram and Asha Ram are acquitted from the charges for the offence punishable under Sections 302/149, 325/149 and 323/149 IPC. However, they are convicted for the offences punishable under Sections 323/34 and 325/34 IPC. The accused Asha Ram had suffered 2 months and 14 days imprisonment whereas, the accused Mohan Ram has suffered actual imprisonment of 2 months and 29 days and thus, it would not be justifiable to send them back to the prison at this belated stage i.e. after 35 years of the incident. Both the accused are sentenced to the period already undergone by them. Conviction of the accused Banshi Ram is altered from the offence punishable under Section 302/149 IPC to one under Section 302 IPC simpliciter and for the said offence, he is sentenced to Life Imprisonment and a fine of Rs. 5,000/- in default, to further undergo six months’ imprisonment. The accused Mohan Ram and Asha Ram are on bail. Their bail bonds are discharged. The accused Banshi Ram is also on bail, his bail bonds are cancelled. He shall surrender before the trial court within thirty days failing which, the learned trial court shall issue a warrant for securing the arrest of the accused so that, he can be committed to jail for serving the remainder of the sentences. 19. The appeal is partly allowed in terms.