Rajasthan High Court - Jaipur
Kadma & Ors vs State on 3 March, 2011
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
D.B. CRIMINAL APPEAL NO.219/1982
Kadma & Anr. Vs. State of Rajasthan
AGAINST THE JUDGMENT DATED 22.01.1982 PASSED BY ADDITIONAL DISTRICT & SESSIONS JUDGE NO.3, DHOLPUR IN SESSIONS CASE NO.51/81 [106/76].
DATE OF ORDER : 03/03/2011
HON'BLE MR.JUSTICE DALIP SINGH
HON'BLE MR.JUSTICE S.S.KOTHARI
Ms. Madhvi Goswami & Mr. Nripendra Sinsinwar, for Ms. Gayatri Rathore, for appellants
Mr. J.R. Bijarnia, P.P., for the State
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By Court (Per Hon'ble S.S. Kothari,J.):
The accused-appellants have challenged their conviction and sentence passed by the learned Additional Sessions Judge No.3, Dholpur in Sessions Case No.51/81 (106/76) State Vs. Deepu & Ors. dated 22.01.1982 by which each of them has been sentenced to six months rigorous imprisonment for offence under Section 147 I.P.C. and to life imprisonment and fine of Rs.200/- in default rigorous imprisonment for two months for offence under Section 302 IPC.
Before adverting to the facts of the case, it may be stated that the appeal was admitted on 05.06.1982 and after receipt of the record, the sentence awarded to the appellants was ordered to be suspended on 21.10.1982. From the record, it transpires that appellant Anar Singh expired and appeal abated against him vide order dated 06.05.2010. Thus, present appeal survives only on behalf of Kadma appellant.
The brief facts leading to this appeal are that Bane Singh S/o Teka submitted written report Ext.P14 on 23.07.1976 at 1.05 P.M. at Police Station Basedi alleging therein that he is a resident of village Tajpur and at about 7-8 in the morning he, his brothers Mohar Singh and Birbal were ploughing their field and their brother Nawab Singh was also sitting nearby. Eleven persons namely: Lakhan, Anar, Hazari, Hakim, Prithvi, Gambhir, Gore, Kadma, Deepu, Ram Khiladi and Makhan reached there and asked them not to plough the land as it belonged to them. At this there was exchange of hot words and abuses between them and the aforesaid persons, who had lathis, farsa, swords and guns in their hands, later they started assaulting them. At this he and his brother tried to flee the place for saving their lives, but 14 other persons armed with lathis, farsa and guns came from the side of the village and started assaulting him and his brother. Ram Khiladi inflicted farsa injury on Mohar Singh's head due to which he fell down on the ground. Thereafter, Lalpat struck him on his head with a lathi and other persons also beat him with lathis as a result of which he became unconscious and thus does not know which accused caused injuries to other persons. When he regained consciousness, Badam, Rajveer and Dharam Singh of his village were standing there who had seen the occurrence and they took him and his brothers to the hospital. The accused persons came to take over possession of their land illegally. On the basis of the aforesaid report, FIR No.74/76 Ext.P16 was registered. The Police conducted investigation during which recoveries of weapons of offence, clothes etc. were made. Since Mohar Singh had expired, a post mortem of the body of Mohar Singh was got conducted. The Police after investigation submitted report under Section 173 Cr.P.C. against 33 persons. Charges were framed against the accused persons for offences under Sections 147, 148, 323, 325, 326, 302 and 149 I.P.C. to which they pleaded not guilty and claimed trial. The prosecution produced 20 witnesses and 89 documents. The accused persons were examined under Section 313 Cr.P.C. in which they stated that they have been wrongly implicated. They did not produce any defence evidence. After hearing, the learned Additional Sessions Judge acquitted 15 persons and held 15 persons guilty of various offences and sentenced them to different imprisonments.
We have carefully heard the learned Counsel for the appellant Kadma and the learned Public Prosecutor in detail.
The learned Counsel for the appellant has submitted that out of 33 persons who were sent for trial, three persons, namely, Hakim, Janak Singh and Babu, expired during trial. Out of the remaining 30 persons 15 persons namely: Ram Khiladi, Lalpat, Arjun, Moti, Kedar, Budha, Kanhiya, Makhan, Durga, Daulat, Nathua, Bhanwar Singh, Ram Dayal, Ramji and Mohar Singh were acquitted as offences were not proved against them. Out of the remaining 15 persons, 13 persons were convicted for offences under Sections 147, 148, 324, 325 and 323 I.P.C. and sentenced to different imprisonments against which they preferred S.B. Criminal Appeal No.47/82: Deepu and others Vs. State of Rajasthan in this Court which was decided on 05.02.82. Learned Single Judge of this Court, while affirming the order of conviction, quashed sentences awarded to them and released them by giving benefit of Sections 360 and 361 Cr.P.C. on executing personal bond for Rs.5,000/- along with one surety of the same amount each.
The learned Counsel for the appellant vigorously contended that there is no positive and categoric evidence against the appellant to prove that the deceased Mohar Singh died as a result of the injury caused by the appellant. He has also submitted that the appellant was not armed with deadly weapon as it is alleged that he had a lathi. He has also submitted that the prosecution has not produced any independent evidence to support its case and the prosecution evidence is full of contradictions and does not prove any offence against the appellant. He has also contended that there was a dispute between the complainant and accused parties regarding the land and the learned trial court has illegally brushed aside the plea of right of private defence of the appellant.
He has also submitted that from the post mortem report of Mohar Singh Ext.P33, it is found that the cause of death has been mentioned as the fracture of skull bones with intracranial hemorrhage and laceration of the left frontal lobe of brain by Dr. Brij Kishore Sharma PW-16. The learned Counsel for the appellant has also contended that the prosecution has failed to prove by any evidence that the deceased Mohar Singh died as a result of the injury caused by the appellant. The learned Counsel for the appellant has, therefore, contended that the appellant has been wrongly convicted and is entitled to acquittal.
Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court.
We have carefully considered the aforesaid submissions of the parties and gone through the judgment of the Court below and the evidence on record carefully. At the outset, it may be stated that we are considering only the role and injuries caused by the appellant to Mohar Singh deceased as only his case is before us. There is no allegation that the appellant caused any injury to anybody except deceased Mohar Singh. Out of the witnesses produced by the prosecution, Bane Singh PW-5, the scribe of written report Ext.P14, his three brothers, Ram Sharan PW-6, Gajraj Singh PW-8 and Nawab Singh PW-10 are eye witnesses of the incident. Birbal PW-9, Rajveer PW-11 and Dharam Singh PW-15 have also given eye witness accounts of the incident. Bane Singh PW-5 has stated that Ram Khiladi caused injury on the head of Mohar Singh by farsa and thereafter, Anar, Kadma and Hakim struck lathis on his head as a result of which he died on the spot. He has admitted that it is not mentioned in report Ext.P14 that Hakim, Kadma and Anar Singh struck lathis on the head of his brother. During his cross-examination, he has stated that Ram Khiladi struck the first blow by farsa on the head of Mohar Singh and thereafter, Anar struck a lathi blow. After Mohar Singh had fallen on the ground, Hakim and lastly Kadma struck him on the head with a lathi. Thus, an improvement has been made by this witness in his statement in the Court below from the facts mentioned by him in the written report. Ram Sharan PW-6 has stated that Ram Khiladi caused farsa injury and Anar, Kadma and Hakim caused lathi injuries on the head of deceased Mohar Singh. In his cross-examination, he has stated that Mohar Singh did not fall on the ground after farsa injury caused by Ram Khiladi but fell after Anar Singh had inflicted lathi blow. Gajraj Singh PW-8 has also stated that Ram Khiladi caused farsa injury while lathi injuries were caused by Anar, Kadma and Hakim on the head of deceased Mohar Singh. During his cross-examination, he has stated that he told the Police that lathi injuries were caused by Kadma and Hakim on Mohar Singh's head, but he does not know why it is not mentioned in his statement Ext.D4. Nawab Singh PW-10 has given account of the incident, but has deposed in his cross-examination that he could not see who caused injuries to deceased Mohar Singh as he was surrounded by the accused persons. Admittedly, all the aforesaid four witnesses are brothers and thus interested witnesses. As the prosecution has produced three other eye witnesses of the incident, the evidence of aforesaid four witnesses has to be critically examined with reference to them. Birbal PW-9 has simply stated that Hakim, Anar, Ram Khiladi and Kadma inflicted lathi blows on Mohar Singh. He has not stated on which part of the body the injuries were caused. This witness has stated on 03.01.1978 that he is aged 12 years. Thus, on the date of occurrence he was a child of 10 years only.
Rajveer PW-11 has been declared hostile and cross-examined by the prosecution and the accused persons. Dharam Singh PW-15 has stated that Ram Khiladi struck farsa blow on the head of Mohar Singh and thereafter, Kadma, Hakim and Anar inflicted lathi blows on his head. Thus critical analysis of the oral evidence shows that there are omissions and improvements in the statements of Bane Singh PW-5, Ram Saran PW-6, Gajraj Singh PW-8 and Nawab Singh PW-10. They are of the same family and inimical to the accused party. The independent witnesses Birbal PW-9 and Rajveer PW-11 do not support them. Hence, it is difficult to place implicit reliance on their evidence.
Moreover, perusal of the post mortem report of deceased Mohar Singh Ext.P33 shows that there were three lacerated wounds and one contusion on the left side temporal region of head, left temporal region, left parietal eminence and above the right ear. All the injuries were caused by a blunt weapon. Thus, the ocular evidence and medical evidence are in conflict as no injury by sharp edged weapon was found, while all the witnesses have deposed that first of all Ram Khiladi caused injury by farsi on the head of deceased Mohar Singh. Apart from it, there is nothing on record to show as to which out of the aforesaid four injuries was caused by the appellant. There is also nothing to show which of aforesaid four injuries caused the death of Mohar Singh. Thus, it is difficult to hold that the deceased Mohar Singh died as a result of the injury caused by the appellant specially as the accused Ram Khiladi, who is alleged to have caused one blow by farsa on the head of Mohar Singh has been acquitted by the trial court.
Admittedly, there is a dispute between the complainant and accused parties regarding the land of Khasra No.230 which is Sawai Chak. The land belongs to State and each party had illegally taken possession of it in part. Both the parties wanted to take over the entire land by ousting the other party. Not only the aforesaid eye witnesses, but other witnesses have also deposed about this dispute.
A perusal of the injury reports of Kadma, Dolly Ram, Makhan and Durga Ext.D6 to D9 shows that they received injuries in the scuffle. The prosecution has not explained their injuries. Rather Bane Singh PW-5, Ram Saran PW-6, Gajraj Singh PW-8 and Nawab Singh PW-10 in their cross-examination have denied that any injuries were caused to the aforesaid accused persons during the incident. This is also a serious lacuna in the prosecution case as the injuries to the accused have not been explained.
From the above discussion, it clearly emerges that out of 33 accused persons, 15 accused persons were acquitted by the court below, 10 accused persons were released on probation by this Hon'ble Court, 4 accused including appellant Anar have expired. The incident took place 35 years ago and the appellant is aged 80 years now. The prosecution evidence is omnibus and vague about the injury caused by the appellant to Mohar Singh the deceased. The Hon'ble Apex Court has in the case of Eknath Ganpat Aher and Ors. Vs. State of Maharashtra and Ors. reported in 2010 Criminal Law Reporter (SC) 482 held that It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. In such situations, the Courts are called upon to be very cautions and sift the evidence with care. Where after a close scrutiny of the evidence, a reasonable doubt arises in the mind of the Court with regard to the participation of any of those who have been roped in, the Court would be obliged to give the benefit of doubt to them.
Keeping the aforesaid legal position and facts of the case in mind, we are of the firm opinion that the prosecution has not fully proved its case against the appellant and he is entitled to get benefit of doubt. Accordingly, the appeal of the appellant Kadma is accepted and his conviction and sentence is set aside. He is acquitted from the offence under Sections 147 and 302 IPC.
The accused appellant (Kadma) is on bail since his sentence has been suspended by this Court vide order dated 21.10.1982. He need not surrender. However, in view of the provisions of Section 437-A Cr.P.C., the bail bonds and sureties submitted by the accused shall remain in force for a period of six months and the accused appellant shall be required to appear in person before the appellate Court on issue of notices in respect of any appeal or petition that may be filed against this judgment.
[S.S.KOTHARI],J. [DALIP SINGH],J. FRBOHRA219DBCRLAPPEAL1982.doc