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2023 DIGILAW 233 (RAJ)

Salim S/o Abdul Razak v. State Of Rajasthan

2023-01-20

MADAN GOPAL VYAS, VIJAY BISHNOI

body2023
JUDGMENT : Vijay Bishnoi, J. 1. This appeal under Section 374(2) Cr.P.C. is filed by the appellants against the judgment dated 02.09.1992 passed by the learned Additional Sessions Judge No.3, Jodhpur (for short ‘the trial court’ hereinafter) in Sessions Case No.25/90 by which the appellants have been convicted for the offence punishable under Section 302/34 IPC and sentenced for life imprisonment with a fine of Rs.2500/-, in default of payment of fine to further undergo six months’ simple imprisonment. The appellants have also been convicted for the offence punishable under Section 452/34 IPC and sentenced for three years’ simple imprisonment with a fine of Rs.100/-, in default of payment of fine to further undergo 15 days’ simple imprisonment. The appellants have also been convicted for the offence under Section 323/34 IPC and sentenced for three months’ rigorous imprisonment with a fine of Rs.50/-, in default of payment of fine to further undergo 7 days’ simple imprisonment. 2. During the pendency of the present appeal, appellant No.4 – Mst. Gheesi W/o Abdul Razak died and the appeal preferred on her behalf was abated vide order dated 22.11.2020. 3. Brief facts of the case are that Premsukh (PW-1) submitted a written report (Ex.P/1) to the SHO, Police Station, Mahamandir, Jodhpur on 06.06.1990 at about 1:30 pm stating therein that today at 1:00 pm, he along with his father-Moolchand and mother-Pushpa Devi were sitting in a room adjacent to a shop situated in their house, then, suddenly Salim, Mohammad Sadiq, Majeed sons of Abdul Razak, Gheesi W/o Abdul Razak and wives of Salim and Mohammad Sadiq and one another person armed with lathis and stones forcibly entered into their house with common intention and started assaulted him, his father and mother with lathis and stones. It is stated by Premsukh (PW-1) that wife of Abdul Razak inflicted a lathi blow on his head, on account of which, he fell down. It is further stated that the neighbours namely Champa Devi, Bhagwati, Meera and Ranidan rescued them. It is further stated by the complainant that all the accused persons have assaulted him, his mother and father on account of previous animosity. 4. On receiving the written report (Ex.P/1), the police registered an FIR. It is further stated that the neighbours namely Champa Devi, Bhagwati, Meera and Ranidan rescued them. It is further stated by the complainant that all the accused persons have assaulted him, his mother and father on account of previous animosity. 4. On receiving the written report (Ex.P/1), the police registered an FIR. Injured-Moolchand was brought to hospital by the police, where he was admitted and during treatment, he died and the police after concluding the investigation, filed chargesheet against the appellants-Salim, Mohammad Sadiq, Majeed, Gheesi (now died), and Bano w/o Mohammad Sadiq and Haseena w/o Salim for the offences punishable under Sections 147, 148, 323, 452 and 302 IPC read with Section 149 IPC and the case was committed to the Sessions Judge, Jodhpur, however later on, it was transferred to the trial court. The trial court framed charges against the appellants and two others for the offences punishable under Sections 147, 452, 323 and 302 IPC read with Section 149 IPC. The accused persons denied the charges levelled against them and claimed trial. 5. To prove its case, the prosecution produced as many as 23 prosecution witnesses and also got exhibited certain documents. Statements of the accused were recorded under Section 313 Cr.P.C., in which, they claimed their innocence and produced one witness Mohammad Sabir (DW-1) in their defence. 6. The learned trial court after hearing counsel for the parties and scrutinizing the record of the case has passed the impugned judgment, whereby the appellants have been convicted for the offences punishable under Sections 302/34, 452/34 and 323/34 IPC and sentenced as mentioned above, however, the appellants were acquitted for the offence under Section 147 IPC and the other accused persons namely Bano w/o Mohammad Sadiq and Haseena w/o Salim have been acquitted from all the charges. 7. Assailing the impugned judgment, learned counsel appearing for the appellants-Mohammad Sadiq and Majeed has argued that the independent witnesses namely Bhagwati (PW/3), Champa Devi (PW/4), Meera (PW/5) and Ranidan (PW/7), who are the neighbours, have not supported the prosecution story and turned hostile. 7. Assailing the impugned judgment, learned counsel appearing for the appellants-Mohammad Sadiq and Majeed has argued that the independent witnesses namely Bhagwati (PW/3), Champa Devi (PW/4), Meera (PW/5) and Ranidan (PW/7), who are the neighbours, have not supported the prosecution story and turned hostile. It is also submitted that as per the injury report of the deceased (Ex.P-20), all the injuries except one found on the person of the deceased are simple in nature, however, as per the post mortem report (Ex.P-28), the injury No.1, on the eye of the deceased, was though fatal, but has not been attributed to any of the appellants. It is further argued that recovery of the lathis, at the instance of the appellants-Mohammad Sadiq and Majeed, is also doubtful as the police did not call any independent witness at the time of preparation of recovery memos and only one witness was produced by the prosecution, who was police personnel. 8. Learned counsel has argued that though, two eye witnesses namely Premsukh (PW/1) and Pushpa Devi (PW/2) have stated in their court statements that there was previous animosity between them and the accused appellants, but no concrete evidence regarding the same has been produced. 9. Learned counsel has also submitted that the alleged incident took place on 06.06.1990 and the deceased-Moolchand died on 12.06.1990 and taking into consideration the above fact, it can be gathered that Moolchand was not died on account of the alleged assault upon him by the appellants. Learned counsel, while inviting attention of this Court towards the statement of Dr. Vijay Kumar Malhotra (PW/20), has argued that the doctor has also opined that if the head injury of Moolchand was treated on time, then he could be saved. Learned counsel has argued that from the above piece of evidence, it is clear that proper treatment was not provided to deceased-Moolchand and on account of which, he died. It is submitted that in such circumstances, it cannot be said that the accused appellants Mohammad Sadiq and Majeed have committed any offence and, therefore, the trial court has grossly erred in convicting and sentencing them vide impugned judgment. 10. It is submitted that in such circumstances, it cannot be said that the accused appellants Mohammad Sadiq and Majeed have committed any offence and, therefore, the trial court has grossly erred in convicting and sentencing them vide impugned judgment. 10. In the alternative, learned counsel for the appellants Mohammad Sadiq and Majeed has argued that even if it is assumed, without admitting, that the accused appellants had assaulted the deceased, which resulted into his death, then also, it is clear that the appellants had no intention to kill the deceased as they were not armed with any deadly weapon and the incident took place on account of sudden provocation between the neighbours. Learned counsel has also argued that there is only one injury on the body of the deceased, which is proved to be fatal, hence, the offence alleged to have been committed by the appellants comes within the definition of culpable homicide not amounting to murder and certainly not comes within the definition of culpable homicide amounting to murder. 11. Learned counsel Mr. Vineet Jain, Sr. Advocate assisted by Mr. Rajiv Bishnoi appearing for appellant-Salim has argued that as a matter of fact, appellant-Salim has falsely been implicated in this case as he was not present at the scene of crime on the date of incident. It is submitted that the plea of alibi taken by the appellant-Salim has been disbelieved by the trial court without considering the merits of the same. Learned counsel has submitted that Mohammad Sabir (DW/1) has deposed in his court statement that on the date of incident, appellant-Salim was with him in his house, which is far away from the place of incident, however, the learned trial court has disbelieved the testimony of Mohammad Sabir (DW/1) only on the ground that the eye witnesses have named appellant-Salim and, therefore, the testimony of Mohammad Sabir (DW/1) is not believable. Learned counsel has argued that such an approach of the trial court cannot be appreciated because the defence witness is also a competent witness, who gives evidence on oath and the evidence of the said witness ought to have been appreciated. Learned counsel has submitted that in the cross-examination of Mohammad Sabir (DW/1), no contradiction has been elucidated so as to shake his testimony and the trial court has illegally disbelieved the testimony of the said witness. 12. Learned counsel has submitted that in the cross-examination of Mohammad Sabir (DW/1), no contradiction has been elucidated so as to shake his testimony and the trial court has illegally disbelieved the testimony of the said witness. 12. Learned counsel has further argued that the trial court while relying upon the testimony of Premsukh (PW/1) and Pushpa Devi (PW/2) has recorded conviction against the appellant-Salim, however, from testimony of the above witnesses, it is clear that these two witnesses assigned only one injury to appellant-Salim i.e. on the shoulder of the deceased-Moolchand, however, from the injury report (ExP-20), Post Mortem Report (ExP-28), the statements of Dr. Jagdish Jugtawat (PW/12) and Dr. V.K. Malhotra (PW/20), it is clear that no corresponding injury on the shoulder of the body of the deceased- Moolchand was found. 13. Learned counsel has also argued that as per the Post Mortem Report, injury on the head of the deceased-Moolchand was found fatal, however, the said injury was not assigned to appellant-Salim and, in such circumstances, the trial court has grossly erred in convicting and sentencing appellant-Salim. 14. Per contra, learned Public Prosecutor has opposed the appeal and argued that the trial court has not committed any illegality in convicting and sentencing the convict appellants because the prosecution while producing cogent and reliable evidence has proved the charges against the appellants. 15. Heard learned counsel for the parties and carefully scrutinized the record. 16. The case in hand is in relation to incident took place on 06.06.1990 at Kaga Road, outside Nagori Gate, Jodhpur at about 1:00 pm. Prem Sukh (PW/1) lodged a written report (ExP-1) at Police Station, Mahamandir at about 1:30 pm, wherein he has alleged that the appellants and wives of the appellants Salim and Mohammad Sadiq have attacked and assaulted them when he along with his parents is sitting in a room adjacent to his shop. The police inspected the site on the same day and site inspection memo was prepared as ExP-2 and the map of the site was also prepared on the same day as ExP-3. Deceased-Moolchand was taken to hospital by the police immediately and was got admitted there, but ultimately he succummed to the injuries on 12.06.1990. 17. As per the injury report (ExP-20), Moolchand received the following injuries : 1. Stitched lacerated wound 2 cm long with abrasion 3 cm x 1 cm around it with black eye 2. Deceased-Moolchand was taken to hospital by the police immediately and was got admitted there, but ultimately he succummed to the injuries on 12.06.1990. 17. As per the injury report (ExP-20), Moolchand received the following injuries : 1. Stitched lacerated wound 2 cm long with abrasion 3 cm x 1 cm around it with black eye 2. Abrasion 4.5 cm x 2 cm on Lt. Leg anteriorly lower 1/3 3. Bruise 4 cm x 1cm on Rt. Leg lower 1/3 anteriorly 4. Abrasion 2 cm x 1.5 cm on Lt. Medial meleolus 5. Abrasion 2 cm x 1 cm on Lt. Side of chest 6. Lateral incisor and canine of lower jaw are missing from sockets with laceration of gums. The upper incisors and lower Rt. incisors and Ltd. Central incisor are missing from jaw with healed gums. 18. As per injury report (ExP.21), Injured -Premsukh (PW/1) received the following injures: 1. Stitched lacerated wound 4 cm long on Lt. fronto parietal region 2. Abrasion 2 cm x 1 cm on Rt. hand at base of thumb dorsally 3. Abrasion ½ cm x ½ cm on Lt. side of arm L/3 19. As per injury report of (ExP.22), Pushpa Devi (PW/2) she received the following injuries : 1. Stitched lacerated wound 4 cm long on Rt. side fronto parietal region 2. Bruise 3 cm x 2 cm below Lt eye with ill defined swelling nose. 3. C/o pain Rt. shoulder and Lt gluteal region without any external visible injury 20. Dr. Jagdish Jugtawat (PW/12), in his court statements, has verified the injuries of deceased-Moolchand, injured Premsukh (PW/1) and Pushpa Devi (PW/2). 21. In the Postmortem Report (ExP-28), doctor has clearly opined that the cause of death of deceased-Moolchand is head injury, which is anti mortem in nature. 22. Dr. V.K. Malhotra (PW/20), who conducted the post mortem (Ex.P-28) along with two doctors, mentioned the following injuries on the body of the deceased-Moolchand : Injuries 1. Stitched lacerated wound -2 cm long on Lt side of forehead with an abrasion – 2.5 cm x 1 cm around it with black eye 2. Left lat. Incisor & canine teeth of lower jaw are missing from their sockets with partially healed cavity. The Rt lower incisor & Lt lower cential incisor & upper incisor are missing with completely healed cavity 3. Left lat. Incisor & canine teeth of lower jaw are missing from their sockets with partially healed cavity. The Rt lower incisor & Lt lower cential incisor & upper incisor are missing with completely healed cavity 3. Abrasion – 2 cm x 1 cm on Lt side of chest middle part near mid line 4. Abrasion – 4.5 cm x 2 cm on Lt leg L/3 ant. 5. Abrasion – 2 cm x 1.5 cm on Lt medial malleobus 6. Bruise – 4 cm x 1 cm on Rt leg L/3 ant. All the above mentioned injuries are ante mortem in nature. 23. Dr. V.K. Malhotra (PW/20), in his court statements recorded on 05.06.1992 has clearly opined that the head injury of the deceased was sufficient to cause death. 24. It is true that Bhagwati (PW/3), Champa Devi (PW/4), Meera (PW/5) and Ranidan (PW/7), who as per statement of Prem Sukh (PW/1), witnessed the incident, has not supported the prosecution story, however, Prem Sukh (PW/1) and Pushpa Devi (PW/2), who got injured in the incident, clearly stated that appellants barged into their room and assaulted them with lathies and stones. 25. Prem Sukh (PW/1) and Pushpa Devi (PW/2) were put to cross examination by the defence, but a careful scrutiny of the evidence of the said witnesses suggest that defence has failed to impeach the credibility of the evidence of the said witnesses. Except some minor contradictions, both the witnesses, in their evidence, testified that the appellants barged into their house with intention to kill them and caused injuries with lathies and stones. 26. The contention of the learned counsel for the appellants-Mohammad Sadiq and Majeed to this effect that the cause of death of deceased-Moolchand was not on account of alleged injuries on the head of him but died as he was not treated timely, cannot be accepted in view of the postmortem report and statement of Dr. V.K. Malhotra(PW/20). 27. The incident took place on 06.06.1990, whereas appellant Mohammad Sadiq was arrested on 08.06.1990 at 10:30 pm and appellant-Majeed was arrested on 09.06.1990 at 09:45 pm. The police recovered lathi at the instance of Mohammad Sadiq on 09.06.1990 in the morning and another lathi at the instance of Majeed on 10.06.1990. 28. V.K. Malhotra(PW/20). 27. The incident took place on 06.06.1990, whereas appellant Mohammad Sadiq was arrested on 08.06.1990 at 10:30 pm and appellant-Majeed was arrested on 09.06.1990 at 09:45 pm. The police recovered lathi at the instance of Mohammad Sadiq on 09.06.1990 in the morning and another lathi at the instance of Majeed on 10.06.1990. 28. Though Motiram (PW/10) and Khinvraj (PW/19) witnessed the recovery of lathi at the instance of Mohammad Sadiq but have not supported the prosecution story and even denied their thumb impression and signatures on the recovery memo but Sohan Lal (PW/8) witness of the recovery of lathi at the instance of appellant-Majeed has deposed that the said lathi was recovered at the instance of appellant-Majeed on 10.06.1990. Though Sohan Lal (PW/8) is police personnel but his testimony cannot be discarded solely for this reason that all the appellants have been named by Premsukh (PW/1) immediately in his written report. From the court statements of Premsukh (PW/1) and Pushpa Devi (PW/2) it is clear that the allegations against the appellants of entering into the house of the complainant and assaulting deceased-Moolchand, Premsukh and Pushpa Devi are proved by the prosecution. 29. So far as contention of the appellant-Salim that he was not present at the place of incident at the relevant time is concerned, the plea of alibi claimed by him does not inspire much confidence. As stated earlier, immediately after incident, Premsukh (PW/1) filed written complaint, in which the appellant-Salim is named. In their police statements also, Premsukh (PW/1) and Pushpa Devi (PW/2) have specifically named appellant-Salim along with other appellants and in their court statement also he has been named. 30. Though Mohammad Sabir (DW/1) produced himself as a defence witness claiming that at the time of incident, appellant-Salim was with him at a place, far from the place of incident but his testimony does not inspire confidence. It is stated by him that both of them were preparing for their practical examination, however, the appellant-Salim in his statement recorded under Section 313 Cr.P.C. has claimed that the said practical examination was scheduled to be held on 15.06.1990 whereas the incident took place on 06.06.1990 and in such circumstances, it is difficult to believe that around ten days before, appellant-Salim was preparing only for practical examination. In the opinion of the Court, plea of alibi taken by an accused can only be accepted when evidence of this effect is produced and after going through the said evidence, the only conclusion which can be drawn is this that the person claiming plea of alibi was at a place other than the place of incident and not anywhere else. As stated earlier, the plea of alibi claimed by appellant-Salim is not inspiring any confidence and, therefore, the trial court has rightly disbelieved the testimony of Mohammad Sabir (DW/1). 31. It is to be noticed that the incident took place on 06.06.1990, whereas appellant-Salim was arrested by the police on 26.06.1990 vide arrest memo (ExP-12) and lathi was said to have been recovered at his instance on 27.07.1990 vide recovery memo (ExP-27). The said recovery was effected from the house of appellant-Salim and recovery witness Arjun Ram (PW/18) also verified the same. This Court is of the opinion that it is difficult to believe that lathi allegedly used by appellant-Salim was hidden in the house for more than one and a half month and in such circumstances the said recovery cannot inspire any confidence. So it can be concluded that fatal injury on the body of deceased was not inflicted by appellant- Salim. 32. Now the question comes whether the appellants had intention to kill the deceased or not. 33. From the statements of Premsukh (PW/1) and Pushpa Devi (PW/2), it is revealed that there is on going dispute between two families, who are neighbours, on some trivial issues and some cases are going on. It is alleged by the injured witnesses Premsukh (PW/1) and Pushpa Devi (PW/2) that the convict along with two others armed with the lathies and stones entered into their room and thereafter assaulted them and deceased-Moolchand. 34. It is noticed that only one fatal injury was caused on the head of the deceased and the weapons used in commission of crime i.e. lathies and stones, are not deadly weapons and are usually available in every household or even in open. It is not a case of the eye witnesses that the appellants had aimed the head for the purpose of causing head injury, but it is the case that suddenly they entered into the room and assaulted every one present there. 35. It is not a case of the eye witnesses that the appellants had aimed the head for the purpose of causing head injury, but it is the case that suddenly they entered into the room and assaulted every one present there. 35. It appears that the appellants and complainant are the neighbours and dispute was going on between them and tension rose up to this level that the appellants had decided to inflict bodily injury on the complainant party without any intention to kill but having knowledge that such bodily injuries may cause death. 36. The Hon’ble Supreme Court in Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of Andhra Pradesh reported in (2006) SCC 444 has observed as under: 18. Therefore, the court should proceed to decide the pivota, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302.The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. 37. Taking into consideration the above observations of the Hon’ble Supreme Court and in the facts and circumstances of the case, we are of the opinion that the appellants had no intention to kill the deceased, however, certainly they had knowledge that if they cause bodily injury on the deceased it would likely to cause death of him. 37. Taking into consideration the above observations of the Hon’ble Supreme Court and in the facts and circumstances of the case, we are of the opinion that the appellants had no intention to kill the deceased, however, certainly they had knowledge that if they cause bodily injury on the deceased it would likely to cause death of him. As such the case against the appellants Mohammad Sadiq & Majeed falls within one of the exceptions as provided under Section 300 IPC and as such they are guilty of committing offence under Section 301 Part-I read with Section 34 IPC. 38. So far as the accused appellant-Salim is concerned, it cannot be concluded that he inflicted any injury to the deceased or injured persons but from the evidence available on record, it can be gathered that he entered into the house of complainant along with his brothers, who were armed with lathis/stones and assaulted the complainant and his parents and as such he acted along with the other co-accused persons in furtherance of common intention and, therefore, his case also falls within Section 304 Part-I read with Section 34 IPC. 39. The result of the above discussion is this that the conviction of the appellants recorded by the trial court for the offence punishable under Section 302/34 IPC is not sustainable, however, the appellants are convicted for the offence punishable under Section 304 Part- I/34 IPC and sentenced for eight years’ rigorous imprisonment with a fine of Rs.2500/-as imposed by the trial court, in default of payment of fine, the appellants will further undergo six months’ simple imprisonment. The conviction of the appellants for the offence punishable under Sections 452/34 & 323/34 IPC and sentence awarded by the trial court for the said offences as well as the fine imposed are confirmed. The order of the trial court is modified accordingly. 40. As per the custody certificates, appellant-Salim remained in jail only for a period of four and a half months, appellant -Mohammad-Sadiq remained in jail for around three years and eleven months, whereas appellant-Majeed remained in custody only for a period for five months. The appellants are on bail, therefore, they are directed to surrender before the trial court within a period of one week to serve out the remaining part of their sentences. 41. Record of the trial court be sent back.