Rajasthan High Court - Jodhpur
Fagna & Ors vs State on 17 April, 2018
Author: Sangeet Lodha
Bench: Sangeet Lodha, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 197 / 2009
1. Fagna s/o Shri Lalua Pargi,
2. Sawaji s/o Shri Rama Ji Pargi,
3. Lukia s/o Shri Nana Pargi,
All are resident of Village Sada- Badala, P.S. Kotda, District
Udaipur (Rajasthan)
(Fagna is presently lodged in Central Jail, Udaipur)
----Appellants
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Pradeep Shah with Mr. Shambhoo Singh
For Respondent(s) : Mr. C.S.Ojha, Public Prosecutor.
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR Judgment Per Hon'ble Mr.Sangeet Lodha,J.
17th April, 2018 Reportable
1. This appeal is directed against judgment and order dated 10.2.09 of the Additional District & Sessions Judge (Fast Track) No.1, Udaipur in Sessions Case No.47/08, whereby the appellants (2 of 28) [CRLA-197/2009] Fagna s/o Lalua Pargi, Sawaji s/o Ramaji Pargi, Rama s/o Lalua Pargi and Lukia s/o Nana Pargi were convicted and sentenced as under:-
U/s. 148 IPC Each to suffer two years simple imprisonment and fine of Rs. 1000/-; in default to further suffer one month's simple imprisonment.
U/s. 452/149 IPC Each to suffer three years' simple imprisonment with fine Rs. 5,000; in default, to further suffer three months' simple imprisonment.
U/s. 302/149 IPC Each to suffer life imprisonment with fine Rs. 10,000; in default, to further suffer six months' simple imprisonment.
The sentences are directed to run concurrently.
2. The prosecution story in nutshell is that on 18.6.07 around 6.30 p.m. Manilal accompanied by his son Laxman went to attend Narayan's son marriage. There Manilal entered into altercations with Lukia s/o Nana and Rama s/o Lalua Pargi on account of old animosity and dues. They threatened Manilal to kill him. Fearing from that, Manilal and Laxman returned home. They were chased by Fagna s/o Lalua armed with Sword, Sawaji s/o Rama armed with Lathi, Pathru s/o Laluram Pargi armed with Bow-arrow. They were accompanied by Rama armed with Bow-arrow and Lukia armed with Sword. Seeing situation at the time, Manilal's wife Diwali came out of the house and caught hold of Lukia and kept on imploring him not to engage in fight. As Manilal entered the (3 of 28) [CRLA-197/2009] house, he saw Fagna armed with Sword coming from back, on this he tried to escape from corner of Padsal then he saw Rama and Pathru in front of him, then Manilal attempted to escape from the Main Gate at that time, Fagna holding Sword in his hand attacked him. Sword blow was aimed at left side of the neck. Manilal made an unsuccessful attempt to rescue himself from his left hand but Sword injury was inflicted on the neck and half of his neck was cut. Simultaneously with the jolt, half portion of the Sword broke down and fell at the site. Rama and Pathru gave blow with the arrow in Manilal's back. Three arrows pierced the person of Manilal, out of which two of them he removed on his own but one remained entrapped. In semi conscious state, he fell down on a cot nearby and died. Sawaji inflicted injuries on Laxman and Sawia with Lathi and threatened them. Wajki, Suma and Geeta had also witnessed the incident but they were frightened.
3. P.W.7-Fula s/o Rata Pargi narrated the incident occurred orally which was reduced in writing by the police vide Ex.P/10 and on the basis of the oral information, an FIR (Ex.P/11), for offences under Section 147, 148, 149, 452, 323 & 302 IPC was registered by the police and investigation commenced.
4. During the investigation, after inquest proceedings, the dead body of Manilal was subjected to autopsy, necessary memos were drawn and the statements of witnesses were recorded under Section 161 Cr.P.C. Blood smeared soil, control soil, broken part of Sword, Arrows, Blood stained Bushirt of the deceased were seized.
The accused persons were arrested. At the instance of the accused Fagna, remaining half portion of the Sword, at the instance of (4 of 28) [CRLA-197/2009] Rama, the Bow, at the instance of Sawaji, Stick were recovered. Blood smeared soil, control soil, broken Sword (blade), broken Sword (handle), Blood stained shirt and Arrow were sent for examination to the Forensic Science Laboratory and the report was obtained.
5. After completion of the investigation, the police filed charge sheet against the accused persons Fagna, Sawaji, Rama and Lukia for offences under Sections 147, 148, 149, 323, 452 & 302 IPC before Judicial Magistrate, Kotra, who committed the matter to the Sessions Judge, Udaipur, which was later transferred to the court of Additional Sessions Judge No.1, Udaipur. The learned trial Judge framed the charges against the accused Fagna, Sawaji, Rama and Lukia for offences under Sections 148, 302 & 452 IPC. Accused Pathru being juvenile, was charge sheeted for being tried by Juvenile Court, Udaipur.
6. The prosecution in support of its case examined as many as 16 witnesses (PW 1 to PW 16) and produced the documentary evidence Ex.P/1 to Ex. P/24. The appellants in their defence got examined D.W.1-Chenaram, D.W.2-Ramesh, D.W.3-Anada and D.W.4-Madhu. The documentary evidence was exhibited as Ex.D/1 to Ex.D/5.
7. In examination u/s 313 Cr.P.C., the appellants denied their involvement in the commission of the offences and claimed that they never went to Manilal's house.
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8. After due consideration of the rival submission and the evidence on record, the learned trial Judge convicted and sentenced the appellants as indicated above. Hence, this appeal.
9. We have heard the learned counsel for the appellants and learned Public Prosecutor.
10. Learned counsel for the appellants submitted that the trial court has not appreciated the evidence on record in correct perspective, which has resulted in erroneous findings being arrived at. Learned counsel contended that there is no evidence on record to substantiate the fact that the accused persons forming an unlawful assembly, in furtherance of the common object, inflicted injuries by the weapons indicated, on the persons of the deceased Manilal and injured Laxman & Sawia. Learned counsel urged that as per the post mortem report, Manilal died on account of the injury inflicted on the neck and the remaining injuries reported to be incised wound being only muscles deep were simple in nature. The prosecution got examined Fula, the brother of the deceased as eye witness, whereas during the trial, other prosecution witnesses have categorically deposed that Fula was not present at the place of occurrence. Learned counsel urged that P.W.1-Laxman, P.W.2-Suma, P.W.6-Smt. Diwali examined by the prosecution as eye witnesses are closely related to the deceased and thus, being interested witnesses, their testimony cannot be relied upon. As per the prosecution, three arrow injuries were inflicted on the person of the deceased but only one arrow was recovered from the place of occurrence. It is submitted that as per the prosecution, Rama pelted stone and caused injury to (6 of 28) [CRLA-197/2009] Manilal but no such injury was found on the person of Manilal. Learned counsel urged that the statement of the eye witnesses suffers from major contradictions in respect of the material points and there is no specific overt act assigned to the appellants Sawaji, Rama and Lukia and further that no recovery has been effected at the instance of Lukia. The factum of Lukia inflicting injury to the deceased by Sword is not mentioned in the FIR and in the statement of the eye witnesses recorded by the police under Section 161 Cr.P.C. and thus, the improvement made by the witnesses in their deposition before the court makes their testimony doubtful. The doctor was not examined to prove the injuries alleged to have been caused to Laxman and Sawia. Learned counsel submitted that D.W.1-Chenaram and D.W.2- Ramesh reached the place of occurrence first, however, their testimony has been discarded by the learned trial Judge altogether. While drawing the attention of the court to the photographs (Ex.P/14 to Ex.P/18), learned counsel submitted that the half portion of the Sword alleged to have fallen at the place of occurrence is not visible therein and thus, the prosecution story appears to be concocted and false. Learned counsel submitted that the incident is alleged to have occurred on 18.6.07 at 6.30 p.m., however, the oral information was furnished by P.W.7-Fula on 19.6.07 at 9.25 a.m. and the FIR registered was sent to the concerned Magistrate on 22.6.07. Learned counsel would submit that sending of FIR belatedly leads to the conclusion that fard bayan and FIR had been recorded much later than one as shown in the said documents, which is fatal to the prosecution case. In (7 of 28) [CRLA-197/2009] support of the contention, learned counsel has relied upon decisions of the Supreme Court in 'Arjun Marik & Ors. vs. State of Bihar', 1994 Supp(2) SCC 372, 'Suresh Chaudhary vs. State of Bihar', (2003) 4 SCC 128 and 'Meharaj Singh (L/Nk.) vs. State of U.P. & Anr.' (1994) 5 Supreme Court Cases 188 and a decision of this court in the matter of 'Deenu Khan vs. State of Rajasthan', 1996 Cr.L.R. (Raj.) 365. Learned counsel urged that the definite object of unlawful assembly is not established by the prosecution and therefore, the appellants deserve to be acquitted. In support of the contention, learned counsel has relied upon a Bench decision of this court in the matter of 'Sher Mohammed & Ors. vs. The State of Rajasthan', RLW 1999(1) Raj.536.
11. On the other hand, learned Public Prosecutor submitted that the guilt of the accused stands established beyond reasonable doubt on the basis of the testimony of eye witnesses and other corroborative evidence on record. It is submitted that the appellants forming an unlawful assembly armed with deadly weapons attacked the deceased in furtherance of the common object and caused his death and thus, their conviction for offence under Section 302 IPC with the aid of Section 149 IPC cannot be faulted with. Learned Public Prosecutor submitted that the minor contradictions in the statement of the eye witnesses in no manner leads to the inference that the prosecution story is concocted and false. Learned Public Prosecutor further urged that it is well settled that if the prosecution case stands proved by testimony of reliable witnesses beyond reasonable doubt, the delay in lodging FIR cannot be taken to be fatal to the prosecution case.
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12. We have considered the rival submissions and scanned the evidence on record thoroughly.
13. The Medical Officer P.W.16-Dr.Puranmal Verma conducted autopsy of the dead body of Manilal. As per post mortem report (Ex.P-23), following ante mortem injuries were found on the person of the deceased Manilal:-
(1) Incised wound - 16x10 cm x bone deep Lt. Side of neck. (2) Incised wound 5x3 cm x bone deep-on Lt. Thumb. (3) Incised wound 2 x 1 cm x muscle deep - Lt. Side of back. (4) Incised wound 2 x 1 cm x muscle deep-Lt. Side of back. (5) Incised wound 2 x1 cm x muscle deep-Rt. Side of back.
Cause of death of Manilal is opined to be hypovolemic shock caused by profuse amount of blood loss by sharp cut of neck vessels and muscles.
The injuries caused and cause of death as disclosed in the post mortem report stands confirmed by deposition of P.W.16-Dr. Puranmal Verma. Thus, on the basis of the medical evidence on record, it is established beyond doubt that the death of deceased Manilal was homicidal in nature.
14. The prosecution case was founded on the testimony of eye witnesses P.W.1-Laxman, P.W.2-Suma, P.W.6-Diwali and P.W.7-Fula and other corroborative evidence.
15. Learned counsel has contended that the testimony of these witnesses who are highly interested being closely related to the deceased cannot be relied upon and therefore, before examining the evidence led by the prosecution, we considered it appropriate (9 of 28) [CRLA-197/2009] to refer to the position of law settled in this regard by the various decisions of the Apex Court.
16. In Kartik Malhar vs. State of Bihar (1995) 8 JT(SC) 425, the Apex Court observed that the ground that the witness being a close relative and consequently being partisan witness should not be relied upon, has no substance. The Court further observed that the said theory was repelled by this court as early as in Deelip Singh's case (AIR 1953 SC 364).
17. In Ram Lakhan vs. State of UP(AIR 1996 SC 3429), the Hon'ble Supreme Court held that the evidence of close relatives of deceased is not liable to be rejected on the ground that they are interested witnesses. What is necessary is that Court should scrutinize evidence of such witness carefully.
18. In Agnoo vs. State of U.P., AIR 1971 SC, 296, the Hon'ble Supreme Court held that the fact of relationship would add value to his evidence because he would be interested in getting the real culprit rather than innocent persons punished.
19. In Baitullah vs. State of UP (AIR 1997 SC 3946), Hon'ble Supreme Court held that evidence of interested witness cannot be discarded merely on ground that he is interested. It is normally expected that witness would not leave out real culprits and rope in innocent persons.
20. In Tapubha Bhagwanji vs. State of Gujarat(AIR 2002 SC 2794) the Apex Court held as under:-
"The witnesses examined on behalf of the prosecution are witnesses who in normal course of event are expected to (10 of 28) [CRLA-197/2009] know about the incident. Their deposition do not reveal any good reason for rejecting their evidence as untrustworthy or unreliable. Nothing has been brought on record either in cross examination of the witnesses concerned or any other evidence to show any good reason as to why they should falsely implicate the accused in the case. Thus rejection of their testimony on ground that they are interested witnesses being in relation of deceased, nor proper."
21. In Suraj Pal vs. State of UP(AIR 1994 SC 748) the Apex Court found that the medical evidence fully establish the injury to eye witnesses, eye witnesses gave consistent version and it was held that their evidence cannot be discarded on ground that they were interested witnesses or that co-accused was acquitted on self-same evidence or that there were minor variations.
22. Thus, it is the settled position of law that the evidence of close relatives of the deceased is not liable to be rejected on the ground that they are interested witnesses. But then, their evidence needs to be scrutinized by the court carefully.
23. In the backdrop of the settled position of law as noticed above, we have to adjudge as to whether the testimony of the alleged eye witnesses is reliable and with the corroboration from other evidence on record, it conclusively establishes the guilt of the appellants.
24. P.W.1-Laxman, the son of deceased Manilal, deposed that on the fateful day he accompanied by his father Manilal, uncle Fulka and cousin Geeta went to attend a marriage at Mandwa. There Rama and Lukia while showing knife threatened his father to kill him. His father rushed to their home, he was chased by Lukia, Fagna, Rama, Sawaji and Pathru armed with Sword. His mother (11 of 28) [CRLA-197/2009] caught hold of Lukia. Fagna inflicted Sword blow to his father. Rama hit him by stone and gave blow with arrow. Pathru hit two arrows to his father. Sawaji gave a blow on his back. Injured by Sword blow, his father fell down and died. Lukia inflicted Sword blow on his father's hand. At the time of occurrence, Sawia, Fula, Suma, Diwali, Geeta and Wajki were present at home. He identified the accused present in the court as the persons who inflicted injuries to his father.
In cross examination, the said witness admitted that Fula was not accompanying them and he had reached subsequently. At the time when Rama and Lukia entered into altercations, Fagna, Sawaji and Pathru was not present there. He denied the suggestion that Geeta stayed back at Anada's house. He deposed that he could do nothing inasmuch as Fagna gave Sword blow to his father as soon as he reached there. When the police reached at the place of occurrence, one arrow was still entrapped in the back of the deceased, however, two arrows were taken out of the body, which were lying there. The police had seized three arrows from the place of occurrence in his presence. Rama and Pathru did not enter the house, however, they hit the arrows from the gate of the house. In the first instance, Rama hit the arrow. He further deposed that Fula had gone to see off mother in law of his nephew Popatia but had returned in the night. When Fula came back, he narrated the incident to him.
25. P.W. 2-Suma deposed that her brother Laxman and father Manilal had gone to Anada Narayan's place for attending a marriage. At Anada's place on account of quarrel, his father and (12 of 28) [CRLA-197/2009] brother returned home. Lukia and Fagna came chasing them. His mother caught hold Lukia, Fagna inflicted Sword blow on the neck of his father, the Sword was broken and a portion of the Sword remained in his hand and the remaining portion thereof fell on the place of occurrence. Rama pelted two stones and then hit an arrow. Then Pathru came and hit two arrows. Sawaji inflicted a Lathi blow to her brother Laxman and two Lathi blows to Sawia. Lukia escaped from her mother's hold and inflicted a Sword blow on the hand of her father. At the time of occurrence, Wajki, her mother Diwali, brother Laxman, Geeta and Sawia were present. While her father was yearning on account of Sword injury, Pathru hit the arrows. Then, her father died on the spot. She identified the accused present in the court.
In cross examination, she deposed that just after the incident, Ramesh, Chenaram, Bhikha, Babu, Madhu, Masru, all the neighbours had reached the place of occurrence. She deposed that though they attempted to rescue her father Manilal but accused were armed with Sword and started beating as soon as they reached there and therefore, they could do nothing. However, they had raised the alarm but none of the neighbours came to rescue. Ramesh, Chenaram, Madhu, Babu, Nan, Bhikha had reached there after her father was killed.
26. P.W.6-Diwali deposed that her husband has gone to attend marriage. Fagna, Rama, Sawaji and Lukia entered into quarrel with him. The accused persons chased her husband and entered their house. Fagna gave Sword blow on the neck of her husband. Rama hit an arrow and also hit two stones. Pathru had hit two (13 of 28) [CRLA-197/2009] arrows. Lukia who was caught hold by her, escaped from her hold and cut the hand of her husband by Sword blow. Sawaji had inflicted two Lathi blows to Laxman and two Lathi blows to Sawia. She further deposed that her husband had died on the spot. At the time of occurrence, Suma, Laxman, Sawia, Geeta, Wajki and Fula were present.
On being contradicted with her statement recorded by the police under Section 161 Cr.P.C. (Ex.D/3) regarding the overt act on the part of Lukia, she deposed that Lukia escaped from her hold and inflicted Sword blow on the hand of her husband, this fact was disclosed by her to the police and she doesn't know why the same is not recorded by the police. She deposed that Pathru had hit arrows inside the room and at the time when Pathru hit the arrows, she was holding Lukia outside the house. Three arrows were taken out from the body of Mania by the SHO, which were seized. She admitted that Mania had raised his hands to save himself by Sword blow. Mania had not suffered the blow on his hand.
27. P.W.7-Fula deposed that Fagna cut the neck of his brother by Sword blow. The portion of the Sword was broken. Rama hit the stone. Pathru and Rama hit arrows. Sawaji inflicted two Lathi blows. Sawia also inflicted two Lathi blows. Lukia cut the hand by Sword. The incident had occurred in the house of his brother Manilal. The occurrence was witnessed by Diwali, Wajki, Suma, Laxman and Sawia. His brother died on the spot. On the basis of the oral information furnished vide Ex.P/10, the FIR (Ex.P/11) was registered. The site plan (Ex.P/6) was prepared by the police in his (14 of 28) [CRLA-197/2009] presence. The police had seized the piece of the Sword, three arrows, one Lathi, two stones, blood smeared soil and control soil from the place of occurrence, the memo whereof is Ex.P/9, which contains his signature as E to F. The dead body of his brother was handed over to him, the memo whereof is Ex.P/8. The police had taken Manilal's bushirt as well. He identified the accused as the persons who belaboured his brother.
In cross examination, he declined to have gone to Anada Narayan's house. He accepted the suggestion that a report (Ex.P/10) was written at the place of occurrence and he had put his signature on Ex.P/11 as well on the spot. He deposed that police had reached the place of occurrence at 12.15 p.m. and remained at the place of occurrence for two hours. The police used to come continuously for five days. He deposed that he had disclosed the fact regarding Lukia inflicted Sword blow, however, he does not know as to why the same has not been mentioned in Ex.P/10 and in his statement Ex.D/4. The police had seized three arrows, one Lathi and the piece of Sword from the spot. He deposed that the factum of seizure of one arrow mentioned in Ex.P/9 is incorrect. He stated that one arrow from the body of Manilal was taken out by him on the next day at 12.15 p.m. Then he stated that the arrow was removed from the body by him at the time of post mortem. The post mortem was conducted at 12.15 p.m. and not at 3 p.m.
28. P.W.9-Vehata turned hostile and did not support the prosecution story.
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29. The witness D.W.1-Chenaram examined in defence deposed that Mania was his neighbour. On 18.6.07 when he was at home, around 8-8.15 p.m. Mania's son Laxman came running and said that somebody has killed his father, whereupon he alongwith his son rushed to the spot, at that time, neighbours Madhu, Bhikha,Babu and Nana also came there. Laxman and his mother Diwali were there and Mania was lying dead on the cot, the blood was oozing out of his neck. On being asked Laxman and Diwali revealed that some unknown person has killed him. Mania's brother Fula had gone to Bus Stand which is 4 km. away. Suma and her husband had gone for bath at Dam nearby, they were not present at the site. Fula reached at around 10 p.m. and at that time, Laxman apprised him that some unknown person has killed Manilal. He had telephoned the police at Kotra by using mobile phone. There was no mark of arrow hit on the dead body and no arrows were lying nearby or entrapped in the body. No piece of Sword was there. Mania was having illicit relations with many women and therefore, he was outcasted.
30. The statement made by D.W.2-Ramesh is in the line of the statement of D.W.1-Chenaram.
31. D.W.3-Anda deposed that marriage of his son Narayan was scheduled on 18.6.07. Rama, Lukia and other villagers were invited but Mania was not invited. Mania and his son did not come to his house to attend the marriage.
32. D.W.4-Madhu deposed that on the fateful day, he was at home. Laxman came running to Chenaram's house. He, Bhikha, (16 of 28) [CRLA-197/2009] Babu, Nana, Ramesh, Chenaram accompanied Laxman to Mania's house, Diwali was there. Mania was lying dead, there were injuries on his neck. On being asked, Diwali and Laxman revealed that somebody has killed him. Suma while crying said that somebody has killed his father. Then, the information was furnished to Kotra Police Station by using Chenaram's mobile. Mania's brother Fula was at Bus Stand, which is 4 km. away from home. The dead body was lying on the spot but bow-arrow, piece of Sword were not there. When the police undertook photography of the spot, at that time also, arrows and Sword were not there. At that time, Fula, Laxman and Diwali did not disclose as to who killed Mania. There were no arrows entrapped in body of the deceased Mania.
33. As per deposition of P.W.-1 Laxman, on the fateful day, he accompanied by his father went to attend the marriage at Anada's house, where Rama and Lukia while showing the knife threatened his father to kill him. He along with his father rushed to the home, however, they were chased by Lukia, Fagna, Rama, Sawaji and Pathru. There is consistency in the testimony of the eye witnesses PW-1 Laxman, PW-2 Suma and PW-6 Diwali regarding Fagna inflicting Sword blow on the neck of Manilal, the Sword being broken, a portion of the Sword remaining in his hand and the other portion thereof falling on the place of occurrence. That apart, there is consistency in the deposition of the eye witnesses regarding the overt acts on the part of Rama and Pathru as well.
34. It is true that there exists some discrepancy in the deposition of the eye witnesses regarding the position of Rama and Pathru from where they hit the arrows and the place where (17 of 28) [CRLA-197/2009] Lukia was caught hold by PW-6 Diwali. But then, where a person is attacked by five persons armed with Sword, Bow-Arrows and Lathi and injury is caused on his neck with Sword by one of the accused, it cannot be expected that the deposition of the witnesses shall be consistent with the exactitude on all points. Thus, the testimony of the aforesaid witnesses on the material points being consistent, the question of discarding their testimony holding them to be unreliable witnesses does not arise.
35. Of course, a perusal of deposition of PW-7 Fula reveals that he had gone to bus stand which is 4-5 kilometers away and was not present at the Anada's house when Rama and Lukia entered into quarrel with Manilal as also at the time of occurrence of the incident of accused causing death of Manilal at his house. Moreover, in cross-examination, PW-7 Fula has specifically denied to have gone to Anada's house. Further, PW-1 Laxman in his cross-examination has specifically deposed that Fula had gone to see off his nephew Popatia's mother-in-law, but had returned in the night and thereupon he narrated the incident to him. In this view of the matter, we are agreeable with the defence that PW-7 Fula does not appear to be eye witness of the incident.
36. As noticed herein above, as per the postmortem report (Ex.P-23), the cause of death of Manilal is opined to be hypovolemic shock caused by profuse amount of blood loss by sharp cut of neck vessels and muscles. The injury found fatal is attributed to accused Fagna. The recovery of Arrow, a portion of the Sword and blood stained Bushirt of the deceased vide Ex.P-9 is supported by the testimony of PW-4 Narsa, PW-5 Babulal and (18 of 28) [CRLA-197/2009] PW-7 Fula. It is true that there exists some discrepancy regarding number of arrows seized from the place of occurrence, but then, it has been further categorically confirmed by PW-12 Tulsiram that as per the record only one arrow was seized from the place of occurrence. The seized article in the sealed condition being taken to the FSL stands proved by deposition of PW-11 Shankar Lal Meena. The factum of the seized article being received by the FSL in the sealed condition stands proved by Ex.P-13. As per the FSL report Ex.P-12, the seized articles were found stained with human blood of 'A' group i.e. the blood group of the deceased Manilal.
37. Suffice it to say that the testimonies of the eye witnesses stand corroborated by medical and other evidence on record and therefore, there is absolutely no reason as to why the testimony of the eye witnesses in respect of the injuries being caused by the accused persons to the deceased as aforesaid should not be relied upon merely for the reason that they being the close relatives of the deceased Manilal were interested witnesses.
38. As noticed above, the sword blow inflicted by the appellant Fagna on the neck of Manilal proved to be fatal, but the injuries caused by other accused Rama and Pathru by arrows were only muscle deep and not found fatal. Appellant Sawaji did not inflict any injury on the person of the deceased Manilal, rather, he caused injuries by lathi blow on the back of Laxman and Sawia. The injury report of Laxman was not proved by the prosecution by producing the doctor for examination. Moreover, no charge regarding the injuries caused to Laxman and Sawia was framed against the appellants and the trial court opined that taking into (19 of 28) [CRLA-197/2009] consideration the facts and circumstances of the case and the time already spent in the trial, it would not be appropriate to amend the charge and thus, the question with regard to commission of the offence qua the injuries caused by Sawaji to Laxman and Sawia does not survive for consideration of this Court.
39. At this stage, it would be appropriate to consider the testimony of the eye witnesses regarding the overt act on the part of Lukia in inflicting injury on the hand of the deceased Manilal by sword blow. It is pertinent to note that as per the oral information by the informant PW-7 Fula reduced in writing vide Ex.P-10, Fagna attacked Manilal by sword in the left side of the neck, Manilal made an unsuccessful attempt to rescue himself by left hand, but the sword blow hit the neck and half portion of the neck was cut. Manilal's wife Diwali came out of the house and caught hold of Lukia and kept on imploring him not to engage in fight. There was no allegation that Lukia caused injury to the hand of the deceased Manilal by sword. There was no such allegation in the statements of PW-1 Laxman, PW-2 Suma, PW-6 Diwali and PW-7 Fula recorded by the police under Section 161 Cr.P.C., Ex.D-1 to Ex.D-4 respectively either. Even the investigating officer PW-14 Hanuwant Singh has accepted in his cross-examination that as per his investigation, Mania had suffered injury on the hand in attempt to rescue himself from the sword blow and the factum of Lukia causing injuries to Mania by Sword was not revealed during investigation. The version of the investigating officer as aforesaid further stands fortified from the deposition of the other witnesses who have accepted that Mania had suffered injuries on the hand in (20 of 28) [CRLA-197/2009] his attempt to save himself from sword blow caused by Fagna. In this view of the matter, in the considered opinion of this court, the trial Judge has committed no error in arriving at the finding that the factum of Lukia causing injury on the hand of the deceased by sword blow is not proved beyond reasonable doubt.
40. Coming to the contention of the learned counsel that the FIR was lodged and sent to the Magistrate concerned with inordinate delay which is fatal to the prosecution case, it is noticed that the incident had occurred on 18.6.07 around 7-8 P.M. and the report was lodged by PW7-Fula on 19.6.07 at 9.25 A.M. The informant has explained that in the village, the transport facility is not available all the time and therefore, taking into consideration the facts and circumstances of the case, it cannot be said that the lodging of the FIR was delayed so as to falsely implicate the accused persons. It is settled law that if the prosecution case is proved beyond reasonable doubt on the basis of reliable evidence, the sending of FIR to the Magistrate concerned with some delay, cannot be considered to be fatal to the prosecution case. The reliance in this regard may be placed upon a decision of the Hon'ble Supreme Court in the matter of 'State of Jammu & Kashmir vs. S.Mohan Singh & Ors.', Cr.L.R.2006 SC 238.
41. The contention raised on behalf of the appellants regarding the half portion of the sword fallen at the place of occurrence being not visible in the photographs (Ex.P/14 to P/18) is also devoid of any merit. A bare perusal of the photographs reveals that the same are focused on the dead body of Manilal and do not cover the entire place of occurrence as such. In this view of the (21 of 28) [CRLA-197/2009] matter, merely because the portion of the Sword is not visible in the photographs exhibited, the prosecution case cannot be disbelieved.
42. Now the question which survives for consideration of this Court in the present appeal is that in the instant case where the fatal blow was inflicted to the deceased Manilal by the appellant Fagna and other two accused namely Rama and Pathru hit arrows on his back and injuries caused were not serious and one of the accused did not participate in the attack on the deceased, whether it would be safe to conclude that the common object of the unlawful assembly was to cause death of Manilal or such an offence as the member of the unlawful assembly knew was likely to be committed in prosecution of the common object.
43. In Mizaji and Anr. vs. State of U.P., AIR 1959 SC 572, while considering the similar issue relying upon the various judgments cited at the bar, observed:
"5. Counsel for the appellants relied on Queen v. Sabid Ali 20 Suth W.R.Cr 5, and argued that section 149 was inapplicable. There the learned Judges constituting the full bench gave differing opinions as to the interpretation to be put on section 149, Indian Penal Code. That was a case where the members of an unlawful assembly went to take forcible possession of a piece of land. The view of the majority of the Judges was that finding unexpected opposition by one member of the party of the complainants and also finding that they were being overpowered by him, one of the members of the unlawful assembly whose exact time of joining the unlawful assembly was not proved fired a gun killing one of the occupants of the land who were resisting forcible dispossession. It was also held that the act had not been done with a view to accomplish the common object of driving the complainants out of the land, but it was in consequence of an unexpected counter-attack. Ainslie, J., was of the opinion that the common object of the assembly was not only to forcibly eject the occupants but (22 of 28) [CRLA-197/2009] to do so with show of force and that common object was compounded both of the use of the means and attainment of the end and that it extended to the committing of murder. Phear, J., said that the offence committed must be immediately connected with that common object by virtue of the nature of the object. The members of the unlawful assembly must be prepared and intended to accomplish that object at all cost. The test was, did they intend to attain the common object by means of murder if necessary? If events were of sudden origin, as the majority of the learned Judges held them to be in that case, then the responsibility was entirely personal. In regard to the second part he was of the opinion that for its application it was necessary that members of the assembly must have been aware that it was likely that one of the members of the assembly would do an act which was likely to cause death. Couch, C.J., was of the opinion that firing was not in prosecution of the common object of the assembly and that there was not much difference between the first and the second part of section 149. He said:-
"At first there does not seem to be much difference between the two parts of the section and I think the cases which would be within the first, offences committed in prosecution of the common object, would be, offences which the parties knew to be likely to be committed in the prosecution of the common object. But I think there may be cases which would come within the second part and not within the first."
Jackson,J., held in the circumstances of that case that the assembly did not intend to commit nor knew it likely that murder would be committed. Pontifex, J., interpreted the section to mean that the offence committed must directly flow from the object or it must so probably flow from the prosecution of the common object that each member might antecedently expect it to happen. In the second part "know" meant to know that some members of the assembly had previous knowledge that murder was likely to be committed.
6. This section has been subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts (Emphasis supplied). The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members even if the offence committed is (23 of 28) [CRLA-197/2009] not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all. There is a great deal to be said for the opinion of Couch, C.J., in Sabid Ali's case 20 Suth W.R.Cr.5 (supra) that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of section 149. Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part."
44. In 'Shivalingappa Kallayanappa & Ors. vs. State of Karnataka', AIR 1995 SC 254, where two accused though armed with axes did not use the sharp side but only gave one or two blows on the heads with the butt ends and two others though armed with sticks dealt blows only on the legs and/or on the hands which were not serious and one of the accused did not participate in the attack on any of the two deceased persons, the Hon'ble Supreme Court observed that the circumstances show that the common object of the unlawful assembly cannot be said to be to cause murders and at any rate it cannot be said that all (24 of 28) [CRLA-197/2009] the accused shared the same object and that they had knowledge that the two deceased persons will be killed and with that knowledge continued to be members of unlawful assembly. Taking into consideration all the circumstances of the case, the court observed that the common object can be held only to cause grievous hurt. Accordingly, the court held two accused causing fatal blows on the head of the deceased for their individual acts and convicted them for offences under Section 302 IPC, however, other three accused were convicted for offence under Section 326/149 IPC so far as the attack on the two deceased persons is concerned. In respect of the attack on injured witnesses, the conviction and sentences of all the accused under Section 326/149 as awarded by the High Court was confirmed.
45. In 'Thakore Dolji Vanvirji & ors. vs. State of Gujarat', AIR 1993 SC 209, where the injury caused by only one accused proved to be fatal and the injuries caused by other accused persons were found to be simple, after due consideration of the circumstances, the court held :
"2.......xxxxx.......... Now the question is whether all the accused would constructively be liable for an offence of murder by virtue of Sec.149, I.P.C. So far A-1 is concerned, it is the consistent version of all the eye- witnesses that he dealt a fatal blow on the head with a sword and the medical evidence shows that there was a fracture of skull and the blow must have been very forceful because even the brain was injured. Therefore, he was directly responsible for the death of the deceased and the High Court has rightly convicted him under Sec.302, I.P.C. Now coming to the rest of the accused, all the eye-witnesses, gave only one blow and that the remaining accused gave stick blows. All these injuries were not serious and were simple. The injury attributed to A-2 was on the cheek and the Doctor did not say that it caused any damage. So it must also be held to be a simple injury. Then we find only a bruise and an abrasion on the right arm and some bruises on the back.
(25 of 28) [CRLA-197/2009] These injuries did not result in any internal injuries. There was not even a fracture of rib. Therefore they must also be simple injuries. It is only the injury No.1 which was serious and proved fatal. Therefore the question is whether under these circumstances common object of the unlawful assembly was to cause the death of the deceased and whether every member of the unlawful assembly shared the same? No doubt Section 149, I.P.C. is wide in its sweep but in fixing the membership of the unlawful assembly and in inferring the common object, various circumstances also have to be taken into consideration. Having regard to the omnibus allegation, we think it is not safe to convict every one of them for the offence of murder by applying Sec. 149, I.P.C. On a careful examination of the entire prosecution case and the surrounding circumstances, we think the common object of the unlawful assembly was only to cause grievous hurt. But A-1 acted in his own individual manner and caused one injury with the sword which proved fatal. No doubt he inflicted only one blow but having regard to the nature of the weapon and the vital organ on which the blow as inflicted and the medical evidence regarding the result of injury proving fatal, he must be held responsible for offences of murder. In differentiating the case of A-2 to A-5 to that of A- 1 we do not mean to say that for the purpose of Section 149, I.P.C. every one of them should participate and inflict serious injuries but having regard to the special circumstances of this case particularly in sudden manner in which the occurrence took place in the village itself, we think it would be unsafe to make every one of the accused liable for offence of murder by application of Section 149, I.P.C....xxxx.."
46. In 'Sarwan Singh & Ors. vs. The State of Punjab', AIR 1978 SC 1525, the Hon'ble Supreme Court observed that if the injuries that are sufficient in ordinary course of nature to cause death are traced to a particular accused, he will be guilty of an offence under Section 302 without the aid of Section 149. When the injuries caused are cumulatively sufficient to cause death, it is necessary before holding each of the accused guilty under Section 302 read with Section 149 to find that the common object of the unlawful assembly was to cause death or the unlawful assembly knew it to be likely that an offence under Section 302 IPC would be committed in prosecution of the common object. After analysis of (26 of 28) [CRLA-197/2009] the injuries, the court opined that it cannot be said that any of the persons that inflicted injuries intended to cause death or such bodily injuries as is sufficient in ordinary course of nature to cause death. The court opined that the common object of the assembly in the circumstances noticed can only be said to cause injuries which are likely to cause death which will be an offence under Section 304(1) IPC. Accordingly, the accused were held guilty for offence under Section 304 Part I read with Section 149 IPC.
47. Keeping in view the position of law settled as aforesaid, adverting to the facts of the present case as discussed herein above, the appellants herein the members of the unlawful assembly were armed with lethal weapons, but only accused Fagna caused the injury on the neck of the deceased which proved fatal. Appellants Rama and Pathru hit the arrows on the back of the deceased which were not that forceful so as to culminate in fatal injury and the injuries caused on the back of the deceased were found only muscle deep. Lukia who was prevented from participating in the attack being caught hold of by PW-6 Diwali has not caused any injury whatsoever. The genesis of the attack was the altercation between the parties at the marriage of Anada's son Narayan and thus, on the facts and in the circumstances of the case, it is difficult to draw an inference that the common object of the unlawful assembly was to commit murder and the offence of murder was committed in furtherance of the common object or an offence as the members of the unlawful assembly knew likely to be committed in prosecution of the common object. Taking into consideration the facts and circumstances of the case, we are of (27 of 28) [CRLA-197/2009] the opinion that common object of the unlawful assembly can be held only to cause the grievous hurt. Thus, the accused Fagna who by exceeding the common object of the unlawful assembly caused fatal injury to deceased Manilal deserves to be held individually liable for causing murder of Manilal and convicted for offence under Section 302 IPC. The remaining appellants herein Sawaji and Lukia (Rama has since expired) are liable to be convicted for offence under Section 326/ 149 IPC.
48. In the result, the accused appellant Fagna is convicted for offence under Section 302 IPC instead of 302/149 IPC and sentenced to suffer life imprisonment with fine Rs.10,000/-; in default to further suffer six months simple imprisonment. However, his conviction and sentence for offences under Section 148, 452/149 IPC awarded by the trial court is maintained. The appeal qua the appellant Fagna shall stand disposed of accordingly.
49. The appeal qua the appellants Lukia and Sawaji is partly allowed and their conviction for offences under Section 302/149 IPC is set aside, however, while maintaining their conviction and sentence for offences under Section 148, 452/149 IPC, they are further convicted for offence under Section 326/149 IPC and sentenced to suffer three years simple imprisonment with fine Rs.5000/- each; in default to further suffer three months simple imprisonment. The sentences awarded as aforesaid shall run concurrently. The appellants Lukia and Sawaji were behind the bars during the trial, however, the sentences awarded to them by the trial Judge were ordered to be suspended by this Court vide (28 of 28) [CRLA-197/2009] order dated 29.10.12 and 18.2.10 respectively. If Lukia and Sawaji have not already undergone the sentence awarded their bail bonds stand forfeited and they shall surrender for undergoing the remaining sentence, but if they have already undergone the remaining sentences, their bail bonds shall stand discharged. However, the appellants Lukia and Sawaji shall furnish a personal bond in the sum of Rs. 25,000/- and a surety bond in the like amount each before the trial court in terms of provisions of Section 437-A Cr.P.C. which shall remain in force for six months. (VIRENDRA KUMAR MATHUR)J. (SANGEET LODHA)J. Aditya/