Rajasthan High Court - Jaipur
Ram Lal And Ors vs State on 16 September, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur Judgment Ramlal and ors vs State D.B Criminal Appeal No.1344/2003 under section 374 Cr.PC against the judgment dated 20.9.2003 passed by the Additional Session Judge (FT), Tonk in Sessions case No.50/2003 Date of Judgment :: 16th September,2013 Present Hon'ble Mr.Justice Mohammad Rafiq Hon'ble Mrs.Justice Nisha Gupta Mr. Suresh Sahni with Mr. Ram Mohan Sharma for the appellants Mr. Javed Choudhary, Public Prosecutor for the State.
Mr. Rajesh Choudhary for the complainant.
By the Court(per Justice Mrs Nisha Gupta) This Criminal appeal has been preferred under section 374 Cr.PC against the judgment dated 20.9.2003 passed by the Additional Session Judge (FT), Tonk in Sessions case No.50/2003 whereby the accused-appellants have been convicted and sentenced as under:-
Bishram, Shrawan, Kajod and Heera Lal Under section 302/34 IPC :Imprisonment of life with fine of Rs. 100/-each , in default of payment of fine to further undergo simple imprisonment for three months.
Under Section 147 IPC: Rigorous imprisonment for one year with fine of Rs.100/-each, in default of payment of fine to further undergo simple imprisonment for three months.
Under section 323 IPC: Rigorous imprisonment for one year.
Under section 325/149 IPC: Rigorous imprisonment for two years with fine of Rs.100/-,in default of payment of fine to further undergo simple imprisonment for three months.
Under section 307/149 IPC: Rigorous imprisonment for five years with fine of Rs.100/-each, in default of payment of fine to further undergo simple imprisonment for three months.
Ram Lal, Ramesh, Gopal, Dev Narayan, Nathu, Ram Kishan, Raju @ Raja Ram and Ramdhan.
Under section 307/149 IPC: Rigorous imprisonment for five years with fine of Rs.100/-each, in default of payment of fine to further undergo simple imprisonment for three months.
Under Section 147 IPC: Rigorous imprisonment for one year with fine of Rs.100/-each, in default of payment of fine to further undergo simple imprisonment for three months.
Under section 323 IPC: Rigorous imprisonment for one year.
Under section 325 IPC: Rigorous imprisonment for two years with fine of Rs.100/-each, in default of payment of fine to further undergo simple imprisonment for three months.
The short facts of the case are that Girraj PW2 has filed a written report (Ex.P/58) at Police Station, Datwas, Nibai on 16.6.1999 stating therein that in the morning at about 8:00 AM Morpal and sixteen other persons entered in the field named Sarota with a tractor. All were having Lathies and Gandasies in their hands. Raju was driving the vehicle, they have started ploughing the field, complainant-Dhanna, Girraj, Mohan, Govindnarayan, Harpal and Sukhdev went there to say them not to plough the field whereupon all the accused persons assaulted them with lathies and Gandasies. Villagers and family members saved them and many injuries have been caused to them. On this FIR No.65/1999 has been registered for the offences under sections 147, 148, 149, 447, 323 and 307 IPC. The injured Mohan Lal died on 16.6.1999, the offence under section 302 IPC has also been added.
After completion of the investigation, charge sheet has been filed against sixteen persons. Case was committed to the court of sessions and transferred to Additional Session Judge (FT), Tonk. The accused persons have been charged for the offence under sectin 147, 148, 149, 447, 323, 307 & 302 IPC.
The prosecution has relied upon 22 witnesses namely PW1 Dhanna, PW2 Girraj, PW3 Govindnarayan, PW4 Sukhdev, PW5 Harpal, PW6 Laxman, PW7 Gulab, PW8 Tulsa, PW9 Badri, PW10 Ramratan, Pw11 Girraj, PW12 Damodar, PW13 Harinarayan, PW14 Jagannath, PW15 Jagdish, PW16 Sita Ram, PW17 Phool Chand, PW18 Mool Chand, PW19 Kailash, PW20 Laxmi Narayan, PW21 Dr. Gopal Singh, & PW22 Mishri Lal. Prosecution has relied upon Ex.P/1 to Ex.P/72 Statements of accused persons under section 313 Cr.PC have been recorded.Defence has relied upon documents Ex.D/1 to D/9.
After conclusion of the trial, the appellants have been convicted and sentenced as stated above.
Three accused persons namely Morpal, Kalyan and Ramavtar have been acquitted of the charges under section 147, 148, 447, 323, 325, 307 and 302/149 IPC. During trial, one accused named Harphool had died and during appeal, appellant Shrawan son of Morpal also died. Hence, appeal against Shrawan son of Morpal stands abated and is dismissed.
The contention of the appellant is that it is a case of false implication which is clearly apparent on the face of the record. The case of the prosecution is that Bishram, Kajod and Heera and many others were carrying Gandasies whereas deceased had received one single injury that too of blunt weapon, hence, the ocular evidence which is contrary to medical evidence on which conviction is based under section 302 read with section 34 IPC is legally untenable. The appellants were not the tress-passers or aggressors and they have been acquitted of the offence under section 447 IPC. No opinion was given by the doctor about any of the injuries caused to the injured persons are dangerous to life and accused appellants have also received injuries which were not explained by the prosecution, thus, the prosecution has suppressed the genesis of the occurrence. The conviction under section 302 read with 149 IPC and at the same time for the offence under section 302/34 IPC are contradictory and conflicting. The eye witnesses have improved their versions in the court. Statement incorporated in the FIR and given before the court diagonally different to each other and prosecution evidences are doubtful. Hence, present appellants should be acquitted of the charges.
Per contra, contention of the learned Public Prosecutor is that eye witnesses, Dhanna, Girraj, Govind Narain, Sukhdev, Harpal, Laxman had consistently stated that Vishram, Kajod and Heera caused sharped-edged weapon injury to deceased, whereas Shrawan has inflicted Lathi blow. Six persons sufferred injuries and when many persons assaulted on various injured persons, it was not humanly possible to observe and narrate that which injury was caused by whom. There is no infirmity in the prosecution evidence. It is true that the appellants have been acquitted for the offence under Section 447 IPC. but still it does not give any right to them to assault brutally there is no reason to infer in the findings of the court below.
Heard the learned counsel for the parties and perused the impugned judgment as well as the record of the case.
PW-2 Girraj has lodged the FIR. He is injured eye witness. His contention is that the land belongs to them but in cross examination he admits this fact that four partitions have been done at the spot, out of which three portion belongs to them and it has also been categorically stated that occurrence has taken place at the field which belongs to accused-persons so it was within their right to plough the field and the court below has rightly arrived at a conclusion that the appellants were in peaceful possession of the land and they have been acquitted of the charge under section 447 IPC. which has not been assailed by the State.
As regards the manner of the incident, PW-2 Girraj has lodged the report but in F.I.R, no overt act of any persons as regard to injuries was narrated even in F.I.R,no narration has been mentioned as to injuries to other persons or deceased. In court's statement, PW-2 Girraj, PW-1 Dhanna, PW-3 Govind Narayan, PW-4 Sukhdev and PW-5 Harpal etc. have stated that Bishram, Heera and Kajod have inflicted Gandasi blow on the head of deceased, whereas Shwaran has inflicted lathi blow. In cross-examination, the witnesses have accepted the fact that in their previous statement before Police it has not been narrated that Vishram, Kalyan, Heera have inflicted gandasi blow on the head of the deceased. In their police statements all these witnesses named above have stated that Ramavatar and Gopal have caused lathi blow to deceased Mohan, whereas in Courts statement all the witnesses have improved their versions diagonally different of what they have stated at first instance. Hence, ocular evidence produced by the prosecution as regard to the injuries caused to the deceased, the prosecution witnesses have significantly improved their versions and stated that Bishram, Heera and Kajod have inflicted injuries to the deceased whereas in their police statements, injuries caused to the deceased have been attributed to Ramavatar and Gopal. For the first time, in the additional statement of Laxman, Ex.D/7, the injuries caused to the deceased have been attributed to Bishram, Heera and Kajod, hence for Bishram, Heera and Kajod, prosecution witnesses have significantly improved their versions.
PW/21 Dr.Gopal Singh who has conducted the post-mortem of deceased has stated that deceased has suffered six injuries but all injuries are of blunt weapon and cause of death has been opined by the doctor has occurred due to shock caused by sub dural haemorrage in left temporal area causing compression of the brain whereas ocular evidence produced by the prosecution states that deceased has suffered assault by sharp weapon. All the eye-witnesses have mathematically stated that three appellants have inflicted sharp injuries to the deceased. In the first information report nothing has been stated about injuries of the deceased, hence the medical evidence is contradictory that from the ocular evidence. Reliance has been placed on 1974 (4) SCC 300 Hallu and ors Vs. State of Madhya Pradesh wherein it has been held that where medical evidence falsifying eye witnesses, the discrepancies tend to knock down the prosecution case. Further reliance has been placed on 1996 Cr.L.R.(SC) 354, Niranjan Prasad & Ors vs State of Madhyaa Pradesh wherein it has been held as under:
Surprisingly, however, the evidence of the doctor who held postmortem examination shows that the deceased Lakhanlal had no injury which could be caused by a sharp cutting weapon; and, indeed, he had sustained only one injury which could be caused, according to the doctor, by a blunt weapon only. Similar is the state of medical evidence so far as the injured are concerned. If on the basis of the objective findings of the doctor the trial Court found it unsafe to rely upon the ocular version of the incident as given by the above four witnesses it cannot be said that the finding of the trial Court in this regard was against the weight of evidence or perverse so as to justify the High Court to set aside the same.
In the light of the above, in the present case, the eye witnesses have improved their versions as regards the accused who have inflicted fatal injuries to the deceased and medical evidence does not corroborate the ocular evidence and it can safely be concluded that the prosecution has miserably failed to prove the fact that Bishram, Kajod and Heera have inflicted any injury to the deceased.
The case of the prosecution is that PW/1 Dhanna, PW/2 Girraj, PW/3 Govind Narain PW/4 Sukhdeo PW/5 Harpaland PW/6 Laxman have also suffered injuries with the hands of the other appellants. In FIR, PW/2 Girraj has stated that Ramlal, Ramavatar and Gopal have inflicted injuries to him but in his court's statement, no specific injury has been attributed to any person. Per contra, he has stated that which accused has caused which injury, he does not know and in his police statement, he has attributed specific injury for specific accused but in court's statement, this narration is missing. Injury report of Girraj has been proved by Dr. Gopal Singh PW/21 as Ex.P/50 where he has suffered three injuries, but he has not attributed these injuries to any accused.
Similarly, PW/1 Dhanna has stated in his court's statement that Raju, Devnarain and Nathu have inflicted lathi blows to him whereas in his previous statement, Ex.D/1, no such narration has been stated. He has also improved his version from Ex.D/1 Police statement in which he has stated that Bishram and Shravan have inflicted lathi blows on his head and right leg but this has not been stated in court.
PW/3 Govind Narain has stated that Ramesh, Bishram and Ramlal have inflicted injuries to him, his contention is that he has also suffered sharp weapon injury but no such narration has been stated in his police statement Ex.D/3 and as per injury report Ex.P/49 he has not suffered any sharp edged weapon injury.
PW/4 Sukhdev has stated that Bishram, Kajod and Heera have inflicted sharp edged injury on his head and back but no such narration has been stated in his previous statement Ex.D/4 and furthermore, admittedly, he has not suffered any injury with sharp weapon.
PW/5 Harphool has stated that Shravan, Kajod and Gopal, Ramkishan have inflicted lathi blows and Harphool has inflicted sharp edged weapon injury whereas in previous statement Ex.D/5 he has not narrated any specific overt act of any of the accused qua his injuries.
PW/6 Laxman who is another eye-witness has stated that Raju hit injured Dhanna with a tractor which resulted in fracture of his leg whereas Dhanna himself has not stated so. He has also improved his statement from his previous version.
PW/7 Gulab has also been shown as an eye-witness. He has not suffered any injury and also has not deposed any specific injury to any of the injured persons.
PW/8 Tulsa has stated in her court's statement that she is an eye witness to the incident whereas in his previous statement Ex.D/8 she has stated that after hearing about the incident, she went at the spot and she saw the accused persons on the way but in court's statement he has improved his statement as eye witness.
PW/9 Badri and PW/13 Harinarayn have been prdouced as eye-witnesses and PW/9 Badri has not narrated any specific injury caused to any injured person by any specific accused person. PW/13 Harinarain has been declared hostile. He has not supported the prosecution story hence the evidence referred above clearly suggests that all the injured eye-witnesses have improved their versions from previous statements and medical reports also do not go with ocular evidence of the injured and reliance has been placed on 2007(3) crimes 71 (SC), State of U.P vs Raja Ram and Ors wherein it has been held:
The reasoning of the High Court does not suffer from any infirmity. As rightly observed by the High Court PWs 2 and 3 tried to introduce different versions from what has been stated during investigation. Their version was altered to be in line with medical evidence. Therefore, the High Court has rightly held that the evidence is not cogent so far as they are concerned;
Contention of the learned Public Prosecutor is that when many persons are causing injuries to number of injured, it was not possible for anyone to narrate specific injury to anyone. It is true that when assailants are more in number and injured persons also are more, it depends upon the observation and memorizing power of the particular person, but here in the present case prosecution witness have improved their versions from their previous statements. On the face of the record, it can be held that it is a case of over-implication and witnesses tried to improve their versions to make the offence much serious against the appellants.
Contention of the learned Public Prosecutor is that on the settled principle of vicarious liability, the appellants have rightly been found guilty. The court below has considered the fact that the appellants were having common object to inflict injuries to the injured persons and without proof of overt act the appellants have rightly been convicted. It is true that law is settled on this point that member of unlawful assembly sharing common object could be convicted on the principle of vicarious liability without proof of overt act but here in the present case, specific overt acts have been narrated of each of the appellant but they do not match with their previous version. Contradictory statement could lead only one inference that proseuction witnesses are bent upon to implicate the appellants falsely.
The other contention of the appellants is that four accused persons-Ramlal, Kajod, Shrawan and Ramesh have suffered injuries but the prosecution has not explained the injuries thus the prosecution has suppressed the genesis of the story. Ex.52 to 55 suggest that accused persons have also suffered injuries and this fact has been brought before the court by prosecution itself and when many persons were indulged in the scuffle it may be possible that appellants also suffered injury which are not of serious nature and in the facts and circumstances, injuries caused to accused persons cannot be looked with the eye of suspicion.
Appellants have also been convicted for the offence under Section 307/149 IPC. It is not in dispute that none of the injuries caused to injured persons have been opined by the doctor as dangerous to life and it is not the case of the prosecution that object of the appellants was to commit murder. Hence, the conviction under section 307/149 IPC is legally unsustainable.
Admittedly, the appellants were on the spot for ploughing their field and complainant party went there to restrain them from plouging and while asserting their right scuffile has taken place, hence the appellants could not be found guilty of forming unlawful assembly, per contra, they were using the land rightfully. The court below has seriously erred in holding the appellants liable vicariously and prosecution has also miserably failed in attributing specific injury to any of the appellants.
The prosecution witnesses have improved their versions and tried to make out serious incident against the appellants. The ocular testimony is contrary with that of medical evidence. No injury has been opined as dangerous to life. The appellants were not aggressor, per contra, they were on the spot for plouging the field which was in their possession and complainant party has obstructed them. Appellants cannot be said guilty of forming unlawful assembly and none of the person can be held liable on the principle of vicarious liability. The object of the appellants was not to inflict any injury to anybody when they were not trespasser the question of constituting unlawful assembly does not survive. Ocular testimony suffers from numerous material contradictions.
In view of the above, the prosecution has utterly failed to prove the offence against the appellants beyond reasonable doubt and all the appellants are entitled for acquittal.
Consequently, the appeal is allowed. The judgment under appeal dated 20.9.2003 is quashed and set aside. All the appellants are acquitted of the charge under sections 302/34,147, 323,325/149, 307/149 and 325 IPC. Appellants-Ram Lal,Ramesh, Gopal, Dev Naraian, Nathu, Ram Kishan, Raju @ Raja Ram and Ramdhan are on bail. Their bail bonds stand cancelled. Appellants Bishram,Kajod and Heeralal are in jail they be released forthwith if not required in any other case.
However, keeping in view of the provisions of Section 437-A of the Code of Criminal Procedure, appellants Bishram,Kajod and Heeralal are directed to forthwith furnish personal bond in the sum of Rs.20,000/-, a surety bond in the like amount, before Deputy Registrar (Judl.) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, accused-appellants Bishram,Kajod and Heeralal, on receipt of notice thereof, shall appear before the Supreme Court.
(Nisha Gupta),J. (Mohammad Rafiq),J om
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Om Prakash PA