Rajasthan High Court - Jaipur
Vijay Singh And Ors. vs State Of Rajasthan on 1 February, 1990
Equivalent citations: 1990(2)WLN11
JUDGMENT
1. Both these appeals are directed against the judgment of learned Addl. Sessions Judge, Baran, dated June 14,1988; where by he convicted each of the accused-appellant for offence Under Section 30/34 IPC and sentenced them to life imprisonment and a fine of Rs. 1000/- and in default of payment of fine to undergo two month's further imprisonment, for offence Under Section 447 IPC sentenced to pay a fine of Rs. 200/-, in default of payment of fine to undergo one month's further imprisonment and for offence Under Section 427 IPC sentenced to a fine of Rs. 200/-, in default of payment of fine to undergo one month's further imprisonment. Since both the appeals arise out of the same judgment; one having been filed through counsel and another sent by jail, the same are disposed of by this one judgment.
2. Brief facts giving rise to these appeals are that one Mangilal resident of Telni lodged a report at polios station, Bapcha on September 3, 1986, at 11.30 A.M. where in it was alleged by him that while be was working at the place of Ramsingh Patel his son Bbagwan Singh came early in the morning and told him that his uncle Ram Prasad has been killed by Vijay Singh, Ramsingh & Lalji in his maize field. He rushed to the place and found that the dead-body of Ramprasad was lying in his house. On enquiry he was told by Kanhialal and Ram Narain that she-buffaloes of Ramsingh, Vijay Singh and Lalji were grazing grass in maize crop in the field of Ram Prasad which cattle Ram Prasad was driving out of the field and Ram Prasad was abusing Vijay Singh, Ram Singh and Lalji on which these persons entered the field containing maize of Ram Prasad and started beating bim with lathies Kanhialal and Ram Narain intervened and then the three accused want away Ram Prasad died on the spot On receipt of this information a case Under Sections 302, 447, 427 and 34 IPC was registered and investigation commenced. Postmortem examination of the dead-body of Ram Prasad was conducted on September 4, 1986 by Medical Officer Incharge. Government Hospital Chhabra. The Doctor opined that the death had been caused due to cerebral haemorrhage because of multiple injuries on the head which were sufficient in the ordinary course of nature to cause death. After completing the investigation police submitted a chargesheet against all the three accused-appellants. Charges were read over to all the three accused for offence Under Section 447, 427 and 302 read with Section 34 IPC. Accused pleaded not guilty to the charges and claimed to be triad. The prosecution examined 17 with neses in support of its case. The accused-appellants in their explanation Under Section 313 Cr. PC. stated that the prosecution story is false and that they bad been falsely implicated because Kanhialal witness was in their employment and money was outstanding against him which be was not returning, for this he joined hands with the rival party to make out this case. Defence evidence was led to prove alibi of the accused persons. The learned Addl. Sessions Judge, Baran accepted the prosecution story and convicted and sentenced the accused-appellants as indicated above.
3. Mr. Gupta, appearing on behalf of the accused appellants, submitted that the prosecution story has been fabricated and the FIR has been anti-dated because the FIR, according to the prosecution, was lodged at 11 30 A.M. on September 3, 1986. but it has been received by the learned Judicial Magistrate on September 5, 1986 and was brought to him by a constable who was sent to lodge a report on September 4, 1986. It is submitted that the learned trial court has erred in placing implicit reliance on the testimony of Kanhialal P.W. 15 and Ram Narain P.W. 16. It is submitted that the statements given by these two witnesses are full of contradictions and that they have substantially changed the story given in their statements Under Section 161 Cr. PC and this part of the case has not at all been looked into by the trial court. It is then submitted that by no stretch of imagination it can be inferred that the accused had shared common intention in causing the death of Ram Prasad. The submission of the learned Counsel is that the incident took place early in the morning and that too spontaneously. It is further submitted that out of 8 injuries sustained by the deceased only one grievous injury has been found on his person. Thus, it is submitted that even if the prosecution story is believed, the offence at best for which the accused-appellants can be convicted would be one under s, 325 read with Section 34 IPC, It is then submitted that the statements of P.W. 4 Bharosi, P.W. 5 Bhagwan Singh, P.W. 10 Mangilal and P.W. 11 Babulal which have been relied upon by the trial court are not worthy of reliance. The story putforth by these witnesses is far from truth and cannot be accepted. It is submitted that in the facts and circumstances of the case prosecution has failed to prove a case atleast Under Section 302 read with Section 34 IPC.
4. Learned Public Prosecutor submitted that the accused persons had taken law into their hands in as much a they not only forced their cattle into the filed of Ram Prasad but also used force when he objected to it. It is submitted that accused had gone duly armed with lathies and had shared common intention to beat Ram Prasad deceased. It is submitted that they caused multiple injuries. It is further submitted that there is no reason to disbelieve the statements of Kanhialal and Ram Narain.
5. We have given our thoughtful consideration to the rival submissions and have perused the record.
6. In view of the fact that incident is not disputed and it is also not disputed that Ram Prasad died in persuance of the injuries sustained by him in the incident where the accused persons were the assailants. The only point remains to be determined by this court is as to how the incident started and in the circumstances of the case what offence is made out.
7. The place of occurrence in the instant case is admittedly the field of Ram Prasad where the cattle belonging to the accused persons had entered and started grazing the standing maize crop Ex. P-2 site plan and Ex. P-3 site-inspection memo clearly indicate that the field of accused Lalji and that of deceased Ram Prasad are adjacent. Incident took place in Ram Prasad's field in an area covering 10' x 10' which is close to the Med (boundary) of the two fields It has been shown that maize crop had been damaged but in a very small area and these facts are corroborated by the statement of the Investigating Officer, P.W. 6, Karan Singh who, in his statement, has proved Ex. P-2 and Ex. P-3 also. This statement is further corroborated by the statements of P.W. 15 Kanhialal and P.W. 16 Ram Narain. A perusal of their statements along with aforesaid documents leaves no doubt in our mind th at the incident did take place in the field of Ram Prasad deceased and a little maize crop was also damaged. Thus the accused appellants have rightly been held guilty of offence Under Sections 447 & 427, IPC.
8 Regarding the main incident the entire case is based on the statements of P.W. 15 Kanhialal and P.W. 16 Ram Narain. We are not in agreement with the findings of the learned trial court that P.W. 4 Bharosi, P.W. 5 Bhagwan Singh, P.W. 10 Mangilal and P.W. 11 Babulal also corroborated the prosecution case. P.W. 4 Mst. Bharosibai is the wife of the deceased Ram Prasad. She has categorically stated that it was Kanhialal and Ram Narain who had communicated to her that her husband has been killed by the accused vijay Singh, Ram Singh and Lalji. It was thereafter that she sent Bhagwan Singh to call Mangilal P.W. 10 who happened to be the brother of the deceased, She has admitted in cross-examination that she bad not seen the accused persons even coming out of her field and that she had gone to the place of recurrence later on even after Mangilal had come home. She has further stated that Kanhialal and Ram Narain bad already gone before Mangilal came home. Bhagwan Singh P.W. 5 is young boy of 10-11 years who does not may anything except that his aunt Ram Bharosi had sent him to call his father and he had told his father about the death of Ram Prasad P.W. 10 Mangilal stated that he was working in the field of Ramsingh Patel and after daydown Bhagwan Singh told him that Ram Prasad has been killed On hearing this he went to village Telni from village Peeplia where he was working. According to him when he went home he met Kanhialal and Ram Narain who told him that Ram Singh's buffaloes had entered the filed of Ram Prasad on which Ram Prasad has been killed. Thereafter he along with Gopilal went to lodge the report. He admitted that Kanhialal is his brother-in-law (looser) and Ram Narain is his cousin He also admitted in cross examination that Bhagwan Singh bad admitted before him that be had not seen the accused beating deceased P.W. 16 Babulal has told a different story. According to him Kanbialai had told him that Ram Prasad has been killed by the three accused in their Badi and the dispute took place because Vijay Singh had grazed his cattle in the field of Ram Prasad.
9. A perusal of the aforesaid statements shows that none of these witnesses was either present or had heard the details of the incident. They have not even stated that either of the two witnesses Ram Narain and Kanhiajal had told them the genesis of the entire case Their statements therefore are hardly of any avail except to show that the deceased died of injuries on that day. These statements have not even disclosed that Ram Narain and Kanhialal had also seen the incident. Thus, their statements are of no avail to the prosecution and we are left with the statements of P.W. 15 Kanhialal and P.W. 16 Ram Narain P.W. 15 Kanhialal has stated that he was known to Ram Prasad. A couple of years ago in the morning he was grazing bullocks in the field of Lalji accused. At that time Ram Prasad was also grazing bis bullocks. The fields of Ram Prasad and Lalji are adjacent and an Ram Prasad's field there was a maize crop standing. At that time Vijay Singh's buffaloes entered the field of Ram Prasad and Ram Prasad started dragging them out which was resisted by Vijay Singh who started abusing Ram Prasad. Just then Lalji and Ram Singh accused also arrived there armed with lathies, thereupon all the three accused started beating Ram Prasad. Bach of them inflicted 2-3 blows on the head of Ram Prasad and Lalji pressed his neck. Thereafter they thought that Ram Prasad was dead; hence they went away. According to him Ram Narian had also seen the incident. Mst Bharoshibai thereafter was called who come with the villagers. Thereafter the dead body of Ram Prasad was taken to the house where he told the incidant to the brother of the deceased. In cross examination he has stated that he was at a distance of 12 feet from Ram Narain who is another witness in the case. According to him Vijay Singh gave, first blow on the right temple region. Then Ramsingh also gave a blow on the head and third injury on the head was inflicted by Lalji. It has been stated that Ram Prasad fell down with the first blow and then other injuries were caused to him. The,maize crop had also fallen because Ram Prasad fell on it. It was for about 10 to 15 minutes that the accused went on beating Ram Prasad. He has stated that when the fight begain Vijay Singh and Ram Prasad had a scuffle and in Vijay Singh had pushed Ram Prasad. He has stated house of the accused is very close to the place of occurrence and it is their field only in between. He has admitted that he had been working with accused Lalji for last six months on Rs. 80/- P.M. He has denied the suggestion that Lalji had advanced him Rs. 8000/-. He has also denied the suggestion that he grazed the buffaloes, stated that he was only grazing the bullocks. He has Stated that there were only 5 or 7 bullocks which had entererd the field and damaged 5/50 maize plants. He has further admitted that Ram Narain bad arrived before day-down and before he himself had reached. He was also grazing his bullocks. According to him when Ram Prasad had come it was dark and he had already grazed the cattle for a couple of hours before that. He has admitted that the accused and the deceased had no quarrel before this incident and all of them were on visiting terms. He then stated that Vijay Singh had given filthy abuses to Ram Prasad but Ram Prasad had not given any abuse on that day Regarding the start of the problem and mutual exchange of abuses he resiled from his previous statement Ex. D. 3 portions A to B, C to D and E to F. He denied the suggestion that he had reached the spot subsequently and that it was he and Ram Narain who had beaten Ram Prasad but have falsely implicated the accused. From the perusal of statement it does not borne out exactly as to how the incident started but it is certainly borne out that some of the buffaloes belonging to the accused Vijay Singh had just entered the field of Ram Prasad and damaged a very little part of the standing maize crop on which there was an altercation followed by beating by Lalji and Ram Singh who also had arrived there hearing the noise P.W. 16 Ram Narain has stated that when he was grazing the bullocks at that time he saw that Lalji's buffaloes entered the field of Ram Prasad and immediately then all the accused started beating Ram Prasad by lathies. He stated that Kanbialal was also there because he was working as a servant of Lalji accused In cross examination he stated that his field is adjacent to the deceased and according to him he and Karthialal had come together for grazing the bullocks and when they reached there Vijay Singh was already present According to him Ram Prasad had also accompanied them At that time sun had risen. Kanbialal was grazing the bullocks and Vijay Singh was grazing 4-5 bullocks. Ram Prasad had only one bullock. At that time Vijay Singh's buffaloes went in the field of Ram Prasad and had eaten up the zaize in half biswa land on which there was exchange of abuses and when Ram Prasad continued giving abuses the accused persons started beating him. He is alleged to have seen the incident from a distance of 25 feet. He has stated that Vijay Singh had thought that he was being beaten by Ram Prasad and abused, thereupon other two accused had come, but Ram Prasad was only terrorising Vijay Singh and not beating him Injuries were inflicted when all the three gathered. He then changed his statement and stated that all the three accused bad come together in Ram Prasad's field. This testimony also not inspire confidence about the genesis of the entire story. If his statement is believed, then possibly Vijay Singh who is a boy of 20-25 years and was grazing his buffaloes alone and since they entered the field of Ram Prasad he started abusing Vijay Singh and scolded him on which he raised an alarm that he was being beaten and on hearing his father and elder brother came running with lathies and without verifying the facts they started causing injuries on the person of Ram Prasad. This is the total evidence in this case
10. The deceased had sustained the following external and internal injuries:
1. Lacerated wound 2" x 1/4 x bone deep right frontal region;
2. Contusion 4" x 3" on left check;
3. Incised wound 2" x 1/4" x bone deep on left parietal region;
4. Lacerated wound 1-1/4" x 1/2" x bone deep on left parietal region near parito occipital region;
5. Lacerated wound l" x 1/4" x 1/4" on right parietal region;
6. Bruise 1/2" x 1/4" on the lobula of right ear;
7. Abrasion 3" x 1/8" infront of neck, lower 1/3rd upto upper part of check;
8. Contusion 4-1/2" x 1/2" upper 1/3rd of sturnem passing both left and right upper 1/3rd of chest.
Internal injuries:
Presence of dark red clotted blood on his left parietal bone present. Brain congested and extravaration of blood on its surface. Intradura and subdural haemorrhage and clotted blood. Congestion of cerebral vessels.
Out of the aforesaid injuries injury No. 3 was an incised wound caused by sharp edged weapon which weapon of offence has not been attributted by any of the witnesses to any of the accused persons. According to Dr. P.C Jain P.W. 17 such injury could also be caused by lathi and, therefore, all the injuries bad been caused by lathies only. The Doctor opined that the death was the result of cumulative effect of the injuries and in this view of the main question remains to be decided in this case is as to whether from the statements of the witnesses as well as from the medical report it can be said that the offence proved is one punishable Under Section 302 IPC or Under Section 304, IPC.
11. It is not the case of the prosecution as none of the witness has stated that Vijay Singh had deliberately pushed his cattle inside the field of the deceased Ram Prasad. The evidence is that 4-5 buffaloes entered his field and as soon as they entered the incident took place. It could be accidentally that the buffaloes entered and caused damage to the standing maize crop which enraged Ram Prasad who scolded Vijay Singh and started abusing, hearing which the other two accused also arrived on the science of occurrence and they started beating the deceased. From these circumstances it can be said without fear of contradiction that attack on Ram Prasad was not premeditated but it was all of sudden. The amount of damage caused to the crop and the time taken in the entire incident go to show that the incident took place all of a sudden and there was no premeditation or intention to kill the decease, though there is no escape from coming to the conclusion that it were the accused who had the common intention to beat e deceased Ram Prasad and chestising for the act of his using filthy words to Vijay Singh who was all alone in the field at that point of time. In our opinion constructive liability Under Section 34, IPC can be fixed on all the accused persons for causing injuries on tbe person of the deceased and further that they had She knowledge of the likelihood of the death of the deceased. In that eventuality the offence would fall Under Section 304, Part-II, IPC. We would accordingly acquit the accused-appellants for offence Under Section 362, IPC but hold then guilty of offence Under Section 304, Part-II read with Section 34, IPC
12. Coming to the question of sentence, in our our opinion five years rigorous imprisonment and a fine of 2000/- each would meet the ends of justice.
13. As a result of the aforesaid discussion we partly allow these appeals set aside the conviction of the accused-appellants Under Section 302 read with Section 34 IPC and instead convict them for offence Under Section 304, Part-II read with Section 34 IPC and sentence each of them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 2000/- each and in default of payment of fine each of them will undergo further three months imprisonment. Conviction and sentence for offence Under Sections 447 and 427 IPC is maintained. Out of the fine realised Rs. 5000/- shall be paid to Mst. Bharosibai widow of deceased Ram Prasad.