Rajasthan High Court - Jaipur
Vinod Singh @ Vijendra Singh vs State Of Rajasthan Through Pp on 8 August, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 80/2017
Vinod Singh @ Vijendra Singh S/o Surjan Singh B/c
Rajput, R/o Puriyan, Police Station Bisau, District
Jhunjhunu.
At Present Confined In Central Jail Bikaner
----Appellant
Versus
State Of Rajasthan Through P.P.
----Respondent
Connected With D.B. Criminal Appeal No. 67/2017
1. Mahendra Singh S/o Onad Singh B/c Rajput, R/o Puriyan, Police Station Bisau, District Jhunjhunu. At Present Confined In Central Jail, Bikaner.
2. Roop Singh S/o Mahendra Singh B/c Rajput, R/o Puriyan, Police Station Bisau, District Jhunjhunu. At Present Confined In Central Jail, Bikaner.
3. Hukam Singh S/o Om Singh B/c Rajput, R/o Puriyan, Police Station Bisau, District Jhunjhunu. At Present Confined In Central Jail, Bikaner.
4. Girdhari Singh S/o Kishore Singh B/c Rajput, R/o Puriyan, Police Station Bisau, District Jhunjhunu. At Present Confined In Central Jail, Bikaner.
----Appellants Versus State Of Rajasthan Through P.P.
----Respondent D.B. Criminal Appeal (Db) No. 456/2018 Ranjeet Singh S/o Late Ram Singh Rajput, R/o Puriya, Police Station Bisau, District Jhunjhunu (Rajasthan).
----Appellant Versus
1. State of Rajasthan through P.P.
2. Vikram Singh S/o Shri Rajendra Singh B/c Rajput, (Downloaded on 29/08/2019 at 11:09:03 PM) (2 of 15) [CRLA-80/2017] Aged About 19 Years, R/o Puriya Police Station Bisau, District Jhunjhunu Raj.
3. Rajendra Singh S/o Shri Om Singh B/c Rajput, Aged About 55 Years, R/o Puriya Police Station Bisau, District Jhunjhunu Raj.
----Respondents D.B. Criminal Appeal No. 457/2018 State of Rajasthan through P.P.
----Appellant Versus
1. Vikram Singh S/o Shri Rajendra Singh B/c Rajput, Aged About 19 Years, R/o Puriya Police Station Bisau, District Jhunjhunu.
2. Rajendra Singh S/o Shri Om Singh B/c Rajput, Aged About 55 Years, R/o Puriya Police Station Bisau, District Jhunjhunu Raj.
----Respondents D.B. Criminal Appeal No. 80/2017 For Appellant : Mr. R.N. Mathur Sr. Adv. with Mr. Shovit Jhajharia For Respondents : Mr. Javed Chaudhary for the State For Complainant : Mr. Suresh Sahni with Mr. R.M. Sharma D.B. Criminal Appeal No. 67/2017 For Appellants : Mr. R.N. Mathur Sr. Adv. with Mr. Shovit Jhajharia For Respondents : Mr. Javed Chaudhary for the State For Complainant : Mr. Suresh Sahni with Mr. R.M. Sharma D.B. Criminal Appeal No. 456/2018 For Appellant : Mr. Suresh Sahni with (Downloaded on 29/08/2019 at 11:09:03 PM) (3 of 15) [CRLA-80/2017] Mr. R.M. Sharma For Respondents : Mr. Javed Chaudhary for the State For Complainant : Mr. R.N. Mathur Sr. Adv. with Mr. Shovit Jhajharia D.B. Criminal Appeal No. 457/2018 For Appellant : Mr. Javed Chaudhary for the State For Respondents : Mr. R.N. Mathur Sr. Adv. with Mr. Shovit Jhajharia HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 08/08/2019 Vide this order above mentioned four appeals would be disposed of.
On the basis of report Exhibit P-1 lodged by complainant Ranjeet Singh, formal FIR No.73 dated 20.10.2010 was registered at police station Bisau, District Jhunjhunu under Section 147, 148, 149, 448, 323, 341, 302 Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
Prosecution story, in brief, as per the FIR is that on 19.10.2010 Jaiveer Singh son of the complainant had gone to school. On the way near the temple, he was stopped by Vinod Singh and was slapped and given fist blows. Complainant reached the spot and Vinod Singh took out a sword and tried to attack the complainant. When complainant tried to make him understand, then he was threatened by Vinod Singh. Complainant returned home. On (Downloaded on 29/08/2019 at 11:09:03 PM) (4 of 15) [CRLA-80/2017] the same day, in the evening at about 7.30 p.m, Onad Singh armed with sword and Mahendra Singh, Roop Singh, Surjan Singh, Kanak Singh, Rajendra Singh, Vikram Singh, Kishore Singh, Girdhari Singh, Shiv Singh, Vinod Singh and Hukam Singh came to their house armed with sticks. Shiv Singh was armed with a Barchi. Accused attacked father of the complainant. When complainant and his wife and his brother Hem Singh intervened, they were also inflicted injuries by the accused. Ram Singh father of the complainant succumbed to his injuries. During investigation, charges were dropped against accused Shiv Singh and Kanak Singh.
After completion of investigation and necessary formalities, challan was presented against all the accused except accused Mohar Singh who was declared an absconder.
Charges were framed against the accused under Section 148, 341, 302, 302/149, 325, 325/149 IPC. Accused did not plead guilty and claimed trial.
In order to prove its case, prosecution examined thirty one witnesses. Accused when examined under Section 313 Code of Criminal Procedure, 1973, prayed that they were innocent. In-fact, the parties had got together with a view to effect a compromise. Complainant party started quarreling with the accused party. Since, it was night time, it was not possible to know as to who had hit whom.
Trial Court vide judgment/order dated 17.12.2016 ordered the conviction and sentence of accused Vinod Singh under Section 148, 341, 323/149, 325/149 and 302 IPC, (Downloaded on 29/08/2019 at 11:09:03 PM) (5 of 15) [CRLA-80/2017] whereas, accused Mahendra Singh, Roop Singh, Hukam Singh and Girdhari Singh were convicted and sentenced under Section 148, 341, 323, 325, 325/149, 302 and 302/149 IPC. Accused Vikram Singh, Rajendra Singh, Onaad Singh, Surjan Singh and Kishore Singh were acquitted of the charges framed against them. Hence, convicts have filed appeals challenging the impugned judgment/order of the Trial Court whereby, they were convicted and the State as well as complainant have filed appeals challenging the acquittal of five accused.
Learned counsel for the accused have submitted that, in-fact, it was a case of sudden and free fight. Accused had no common object to cause death of Ram Singh. As per the prosecution story, one injury had been given on his head by accused Mohar (absconder) as well as by accused Vinod. Witnesses had come to the spot when the fight was going on. Thus, it can be said that there was no prior meeting of minds of the accused. Rather, the occurrence had taken place when the parties were trying to reconcile the matter. Elderly persons from both the sides were also present at the spot. Although, it was the case of the prosecution that accused Vinod Singh had given a jelly blow on the head of the deceased, but the deceased had not suffered any punctured or stab wound. Accused party had also suffered injuries in the occurrence and the same were not explained by the prosecution. In support of his arguments, learned counsel has placed reliance on the decision given by the Hon'ble Supreme Court in Criminal Appeal No(s).1006 of 2010 titled as Anand Ramachandra Chougule Vs. (Downloaded on 29/08/2019 at 11:09:03 PM) (6 of 15) [CRLA-80/2017] Sidarai Laxman Chougala decided on 06.08.2019, wherein, it was held as under:-
"If the First Information Report lodged by the accused with regard to the same incident was not exhibited by the prosecution or evidence with regard to hospitalization and injury reports of the accused were also not placed, relying on Dayal Singh and others vs. State of Uttaranchal, (2012) 8 SCC 263 and Gajoo vs. State of Uttarakhand, (2012) 9 SCC 532 it was submitted that at best it may be a case of defective investigation which cannot dent the credibility of the prosecution case with regard to the premediated murderous assault with a common intention.
Learned counsel for the
respondents-accused submitted that
there was no premediated attack. The parties being related, and the existence of a land dispute between them, when they met near the house of Yellappa Patil a verbal duel ensued followed by a scuffle in which both sides received injuries. The F.I.R. lodged by the respondents, their admission to the Hospital for treatment and injury reports have all been suppressed by the prosecution. The fact that the defence may not have been taken under Section 313, Cr.P.C. was inconsequential as the prosecution had to prove the charge beyond all reasonable doubt. Reliance was placed on Manoj Kumar vs. State of Himachal (Downloaded on 29/08/2019 at 11:09:03 PM) (7 of 15) [CRLA-80/2017] Pradesh, (2018) 7 SCC 327, to submit that in absence of a premediated plan to attack, a sudden quarrel in the background of civil dispute with regard to land pending between the parties, the order of the High Court calls for no interference."
Learned state counsel as well as learned counsel for the complainant have submitted that all the accused had come to the house of the complainant party armed with weapons. Hence, the intention of all the accused was clear. All the accused had formed an unlawful assembly and each member of the unlawful assembly was liable to be convicted qua offence punishable under Section 302 IPC. In support of his argument, learned counsel for the complainant has placed reliance on the decision given by Hon'ble Supreme Court in (2017) 5 Supreme Court Cases 568 in Kattukulangara Madhavan Vs. Majeed & Others, wherein, Justice S.A. Bobde while supplementing had observed as under:-
"I am in complete agreement with my learned brother Nageswara Rao J. I would, however, like to deal with one submission made at the bar in relation to the culpability of an accused participating in an unlawful assembly in general, and that of A4 Ummer alias Podi Ummer in particular. It has been argued on behalf of A4 that his mere presence in the unlawful assembly could not be inculpatory since none of the witnesses attributed an overt act to the accused. Such a submission (Downloaded on 29/08/2019 at 11:09:03 PM) (8 of 15) [CRLA-80/2017] without any concrete evidence enabling the Court to infer that the accused did not in fact harbor the same intention as that of the unlawful assembly, cannot be accepted.
In the first place, the presence of an accused as part of an unlawful assembly, when not as a curious onlooker or a bystander, suggests his participation in the object of the assembly. When the prosecution establishes such presence, then it is the conduct of the accused that would determine whether he continued to participate in the unlawful assembly with the intention to fulfill the object of the assembly, or not. It could well be that an accused had no intention to participate in the object of the assembly. For example, if the object of the assembly is to murder someone, it is possible that the accused as a particular member of the assembly had no knowledge of the intention of the other members whose object was to murder, unless of course the evidence to the contrary shows such knowledge. But having participated and gone along with the others, an inference whether inculpatory or exculpatory can be drawn from the conduct of such an accused. The following questions arise with regard to the conduct of such an accused:-
1. What was the point of time at which he discovered that the assembly intended to kill the victim?(Downloaded on 29/08/2019 at 11:09:03 PM)
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2. Having discovered that, did he make any attempt to stop the assembly from pursuing the object?
3. If he did, and failed, did he dissociate himself from the assembly by getting away?
The answer to these questions would determine whether an accused shared the common object in the assembly. Without evidence that the accused had no knowledge of the unlawful object of the assembly or without evidence that after having gained knowledge, he attempted to prevent the assembly from accomplishing the unlawful object, and without evidence that after having failed to do so, the accused disassociated himself from the assembly, the mere participation of an accused in such an assembly would be inculpatory.
In the case of A-4, there is no such evidence on record that having participated in the unlawful assembly which resulted in the death of Suresh Babu, he made any attempt to either stop the incident from taking place, or having found out that he could not prevent it, dissociated himself from the assembly.
Therefore, he must be held liable under Section 326/149 of the Indian Penal Code."
Present case relates to murder of Ram Singh and injuries suffered by Ranjeet Singh/complainant PW-1, Rukmani PW-2, Onkar Singh PW-8. So far as injured Hem (Downloaded on 29/08/2019 at 11:09:03 PM) (10 of 15) [CRLA-80/2017] Singh is concerned, it has been pointed out by learned counsel for the complainant that he could not be examined during trial on account of his death. Thus, case rests on eye-witness account. Prosecution has also examined eye- witness PW-3 Sumer Singh, PW-4 Sayar Singh, PW-6 Bhupendra Singh, PW-10 Gulab Singh and PW-12 Hakim Singh who have supported the prosecution case during trial. The other eye-witnesses examined during trial did not support the prosecution case.
In the present case, the factum of occurrence is not in dispute. As per the postmortem report Exhibit P-16 proved by PW-9 Dr. Veer Singh, deceased Ram Singh had suffered two injuries on his head. Both the said injuries were lacerated wounds. Cause of death of the deceased was shock due to head injury and hemorrhage caused by both the injuries.
Medico legal examination reports of the injured were proved on record.
Exhibit P-17 is the medico legal examination report of injured Hemraj and as per the same, he has suffered simple injuries with blunt weapon.
Exhibit P-18 is the medico legal examination report of injured Onkar and as per the same, he has suffered two simple injuries with blunt weapon.
Exhibit P-9 and Exhibit P-41 are the injury reports of injured Rukmani and as per the same, she has suffered one grievous injury with blunt weapon. She had suffered fracture of metacarpal bone of left index finger. (Downloaded on 29/08/2019 at 11:09:03 PM)
(11 of 15) [CRLA-80/2017] As per Exhibit P-42 and Exhibit P-44, injured Ranjeet Singh had suffered simple injuries with blunt weapon.
Accused party had also suffered injuries in the incident.
As per Exhibit P-19 and Exhibit P-26 accused Mahendra Singh had suffered three injuries. Out of the said injuries, one injury was with a sharp edged weapon and two injuries were on account of blunt weapon. As per Exhibit P- 24 accused Roop Singh had suffered three injuries with blunt weapon. He had suffered fracture of Proximal Phalanx of right middle finger.
As per Exhibit P-27 accused Vinod Singh had suffered two simple injuries with blunt weapon.
Thus, from the medical evidence on record, it is evident that both the sides had suffered injuries in the incident. Injured as well as eye-witnesses have deposed that the accused had come to the spot and had inflicted injuries to the deceased as well as injured. Apart from PW-1 Ranjeet Singh, all the eye-witnesses as well as the injured witnesses have deposed that accused Vinod Singh was armed with a jelly, whereas, accused Mohar Singh was armed with a stick and they had both inflicted one injury each on the head of Ram Singh. As per medico legal examination report of injured Ram Singh, he had suffered one injury on his head and had complained of pain in body. Injury on the head of complainant is attributed by him to accused Roop Singh. So far as injuries on injured Rukmani are concerned, she has attributed the same to Roop Singh, Mohar Singh and Mahendra Singh. So far as injuries on the (Downloaded on 29/08/2019 at 11:09:03 PM) (12 of 15) [CRLA-80/2017] person of injured Onkar Singh are concerned, he has attributed the same to accused Mohar Singh and Hukam Singh.
The question that requires consideration is as to whether accused had come to the spot in conspiracy with each other to commit the offence of murder or they had come to the spot to effect conciliation as pleaded by them and the occurrence suddenly took place.
Pw-13 Jaiveer has deposed that on 19.10.2010, he was going to his school. When he reached near Balaji Temple, he was stopped by Vinod Singh and he questioned him as to why he had brought watermelon from his fields. He stated that he had not done so. Then, Vinod Singh slapped him and gave him fist blows. He started crying and while he was returning home, his father told him that he must have been beaten because of his fault. When he told his father that he was not at fault then his father went with him to the house of Vinod Singh. Vinod Singh threatened them with dire consequences and told them to leave. Then, he returned home with his father. In the evening, he came back to school and slept. His mother woke him up after the occurrence.
Statement of Jaiveer PW-13 is corroborated by the complainant PW-1. Thus, from the statement of PW-1 and PW-13, it is evident that during the day on 19.10.2010 accused Vinod Singh had beaten Jaiveer and had accused him of stealing watermelon from his fields. Complainant had gone alongwith his son Jaiveer to the house of Vinod Singh to complain in this regard and Vinod Singh had threatened (Downloaded on 29/08/2019 at 11:09:03 PM) (13 of 15) [CRLA-80/2017] complainant with dire consequences. In the evening, Vinod Singh alongwith his co-accused armed with weapons reached in front of the house of the complainant and inflicted injuries to the complainant party. Accused had also suffered injuries in the incident.
Although, it is the case of the prosecution that Vinod Singh was armed with a jelly and had inflicted injury with jelly on the head of Ram Singh but the said fact is not corroborated by medical evidence. The deceased had suffered lacerated wounds and had not suffered any punctured or piercing wound.
Exhibit P-10 is the memo vide which jelly was taken in possession on the basis of disclosure statement suffered by accused Vinod Singh. A perusal of the same reveals that the jelly was an old one and was in a broken condition. It appears that the jelly had been used by accused Vinod Singh as a stick, i.e., blunt weapon.
After considering of the facts and circumstances of the present case, we are of the considered opinion that accused Vinod Singh, Mahendra Singh, Roop Singh, Hukam Singh and Girdhari Singh had come to the spot by forming an unlawful assembly with a view to inflict injuries to the complainant party. They had no intention to commit murder but the injuries inflicted by them were likely to result in death of the victim.
So far as accused Vikram Singh, Rajendra Singh, Onad Singh, Surjan Singh and Kishore Singh are concerned, they were rightly acquitted by the Trial Court as no overt act is attributed to them nor any recovery has been effected from (Downloaded on 29/08/2019 at 11:09:03 PM) (14 of 15) [CRLA-80/2017] them. It appears that with a view to over implicate the accused, they might have been also roped in the present case. The judgment relied upon by the learned counsel for the complainant fails to advance the prosecution case with regard to the accused who have been acquitted by the Trial Court.
So far as accused Vinod Singh, Mahendra Singh, Roop Singh, Hukam Singh and Girdhari Singh are concerned, they had not come to the spot with a view to commit the murder of Ram Singh. Their grievance, if any, was with complainant Ranjeet Singh or Jaiveer Singh. However, injury was inflicted by Vinod Singh on the head of Ram Singh which resulted in his death. Hence, the present case would not fall within the ambit of Section 302 IPC, but would fall within the ambit of Section 304 Part I IPC.
Accordingly, accused Vinod Singh, Mahendra Singh, Roop Singh, Hukam Singh and Girdhari Singh are acquitted of the charge framed against them under Section 302, 302 read with 149 IPC.
Accused Vinod Singh is held guilty of offence under Section 304 Part I IPC and is convicted thereunder.
Accused Mahendra Singh, Roop Singh, Hukam Singh and Girdhari Singh are held guilty of offence punishable under Section 304 Part I read with Section 149 IPC and are convicted thereunder.
Consequently, accused Vinod Singh, Mahendra Singh, Roop Singh, Hukam Singh and Girdhari Singh are acquitted from the charge framed against them under Section 302, 302 read with Section 149 IPC.
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(15 of 15) [CRLA-80/2017] Accused Vinod Singh is sentenced to undergo rigorous imprisonment for ten years under Section 304 Part I IPC with a fine of Rupees ten thousand. He shall further undergo rigorous imprisonment for three months in default of payment of fine.
Accused Mahendra Singh, Roop Singh, Hukam Singh & Girdhari Singh are sentenced to undergo rigorous imprisonment for ten years under Section 304 Part I IPC read with Section 149 IPC with a fine of Rupees ten thousand. They shall further undergo rigorous imprisonment for three months in default of payment of fine.
The conviction and sentence of accused Vinod Singh, Mahendra Singh, Roop Singh, Hukam Singh & Girdhari Singh ordered by the Trial Court under Section 148, 341, 323/149, 325/149 are upheld. All the sentences shall run concurrently.
D.B. Criminal Appeal No.80/2017 and D.B. Criminal Appeal No.67/2017 stand disposed of accordingly.
Consequently, D.B. Criminal Appeal No.456/2018 and D.B. Criminal Appeal No.457/2018 are dismissed. (GOVERDHAN BARDHAR),J (SABINA),J Mohita/25-28 (Downloaded on 29/08/2019 at 11:09:03 PM) Powered by TCPDF (www.tcpdf.org)