Rajasthan High Court - Jaipur
Ramjilal, Deviram And Hotilal vs State Of Rajasthan on 20 December, 1991
Equivalent citations: 1991WLN(UC)331
JUDGMENT I.S. Israni, J.
1. This criminal appeal arises out of a judgment of the Sessions Judge, Bharatpur, whereby each of the appellants (Ramjilal, Hotilal & Deviram) has been convicted & sentenced as under:
Under Section 302/34, IPC - Life Imprisonment.
Under Section 323, IPC - Four months' R.I. Briefly put, the facts may be epitomized as under:
On 14.9.1987 at 3.20 p.m. Sahab Singh, ASI, Incharge of Out-post Police, Mathura Gate, Bharatpur recorded a statement (Parcha Beyan) of Smt. Hardevi who was admitted in ward No. 6, Female Surgical Ward, General Hospital, Bharatpur, wherein it had been given out that during her visit to her father's place of abode at village Raina and as soon as she arrived at there, she had seen some altercation being taken place in between her father, Chhidi (deceased), her sister saraj, brother-in-law Veero (Saroj's husband), and Deviram, Ramjilal, Hoti, Durgi & their womem in addition to maar-peet in between them, and that, seeing her father sustaining assaults, she fell down upon him by embracement, but then, Hoti gave lathi blow upon her head, besides that, he having a 'Daranti' also in his hand, gave its blow on her left hand, whereas, Devi gave a lathi blow on her left leg below the knee; but wife of Ramjilal gave lathi blow at the palm of her right hand. Thereupon, Puran & Karan Singh besides other village people came there and saved her and her father, and thereafter, she & her father were brought by Purn & Karan Singh to the Bharatpur hospital for their medical treatment.
2. The said, Parcha Beyan of Smt. Hardevi was sent per messanger, Surajmal (Constable No. 845) of Police Station Kotwali (Bharatpur) to the concerned police station, i.e. Nadbai where it had been received at 3.10 p.m. on 16.9.1987 after near about 2 days of recording of the Parcha Beyan. Thereafter, upon receipt of Parcha Beyan, F.I.R. No. 186/87 was chalked out at police station Nadbai for offences punishable under Sections 147, 323 & 307, IPC, on 16.9.1987.
On 17.9.87 at 0.40 hrs, Chhiddi expired during mid-night. The information of death of Chhidi was given to SHO PS Kotwali vide Ex. P.4 by Dr. Bhopal Singh, Medical Jurist of General Hospital, Bharatpur, at 1.20 A.M. on 17.9.1987, per messanger, Ram Dayal. Upon the said information, as per the endorsement made thereupon, SHO PS Kotwali initiated proceedings under Section 174, Cr.P.C. on 17.9.1987 at 2.15 a.m.
3. Autopsy of Chhidi was got conducted vide Ex. P.5. However, before the autopsy, and his death, Chhidi was also got medically examined and under Ex. P.6, ten injuries were found on his person on 14.9.87 at 1.30 p.m., and it was advised to get x-ray of skull AP and lateral view, Mandible AP and lateral view, and upper jaw from teeth.
4. Site plan was prepared on 19.9.1987. Statements under Section 161, Cr.P.C. of Puran and Karan Singh were recorded by the police on 23.9.1987.
5. After usual investigation and its completion, the police produced challan against the appellants & one Hariram, (who was acquitted after trial). The accused were charged under Sections 302/34, 325/34, 323 & 341, IPC. They denied the charges and pleaded not guilty and claimed trial. Thirteen witnesses were examined by the prosecution to substantiate its charges. The accused were examined under Section 313. Cr.P.C. Ramjilal appeared in the witness box and examined himself as defence witness.
6. After trial, Hariram has been acquitted of the offences charged, and the present appellants have also been acquitted of the offences punishable under Sections 341 & 325/34, IPC. But, the appellants have been convicted under Section 302/34 for the death of Chhidi and under Section 323, IPC for the injuries on the persons of Smt. Hardevi & Murari, and then sentenced each of the appellants as stated in first para of this judgment. Hence this appeal.
7. Besides other usual arguments in respect of the incongruities in the evidence of prosecution etc. the main thrust on behalf of the appellants was that the persons from the accused side also sustained injuries in the melee after wordy quarrel in between both the parties, by sharp-edged in addition to blunt weapons; that the injured persons of the accused side were medically examined by the doctor on the very day of occurrence and their injury reports stand proved by the evidence of the doctor. Taking the aid of these facts and circumstances learned Counsel for the appellants vociforcely urged that the whole case of the prosecution deserves to thrown out of the Court solely on the ground that the injuries admittedly having been caused & sustained in the impugned incident, on the persons of the accused side remained unexplained by the prosecution.
8. Nextly, it has been contended on behalf of the appellants that even if the allegations made by the prosecution are taken on the face value as true, then also, no offence punishable under Section 302/34 of the Indian Penal Code is made out our proved against any of the appellants because, there is no material on record to hold that the appellants had acted in concert and shared common intention to commit murder of Chhidi, particularly when the authorship of fatal injuries remained disproved on record, and thus, the accused could be held liable under Section 325, IPC.
9. Learned Public Prosecutor on the other hand contended that there is sufficient evidence on record to prove that all the appellants opened attack on the person of the complainant party and that, looking to the overtact assigned by the prosecution witnesses, it can safely be held that the appellants had acted in concert and shared common intention to commit murder of Chhidi.
10. We have considered the rival contentions of both the parties and perused the entire record in the light of the contentions made by both the learned Counsel.
11. Appellant, Ramjilal pleaded his defence by stating that Chhidi, Murari & Virendra had left free their cows during night in their field-of which he made complaint to Chhidi in the morning, inasmuch as he had also shown the damaged caused on account of grazing of the cows in his field, to Karan Singh but, a little later, Chhidi, Murari, Virendra, Saroj & Smt. Hardevi duly armed with lathies, & Farse, came to his field where he was grazing his buffaloes, and all of them having weapons in their hand opened assaulting upon him resulting in fracture in his hand. Even Ramjilal deposed that upon his bulla, Hotilal & Devilal (accused) had also reached there but they were also beaten by Chhidi etc. According to his defence version, when Virendra & Murari opened attack with lathies, their blows landed on the person of chhidi causing his death. Similar is the defence version put forward by other accused, namely, Hotilal & Devi.
12. On the careful analysis of the evidence on record of both the sides, the trial Court found that the prosecution has suppressed the genesis of the occurrence, and that Ramjilal sustained grievous injuries having been caused by sharp-edged weapon, and that apart, other accused persons also sustained injuries in the impugned incident and in this view of the matter, it came to the conclusion that the complainant persons were also having sharp edged weapons in their hands. The trial Court further came to the conclusion that Chhittar, (PW 6) has" not given out fully true version and that being so, on the one hand, the infliction of blows by the accused persons on the persons of Chhidi, Hardevi, & Murari has been correctly given out but on the at her hand, he has suppressed second aspect of the occurrence. Ultimately, the trial Court held the instant case as of free fight. Therefore, it rejected the defence plea of private defence of person.
13. During the course of the arguments convassed by both the learned Counsel for the parties, we wrung out that the findings arrived at by the trial Court as to a case of free-fight, have neither been challenged by the appellants' counsel nor by the learned Public Prosecutor. Therefore, we would not like to enter into a controversy, as to whether the case was of free fight or not. And in that situation, crucial question arises as to whether in a case of free fight, common intention can be gathered against the appellants or not, or whether they could be held guilty with the aid of Section 34, IPC for the offence punishable under Section 302, IPC. Moreover, admittedly and as has rightly been found by the trial Court, itself, the appellants did also sustain injuries which too stand proved by the evidence of a doctor who had medically examined them by giving and preparing injuries reports (Ramjilal-Ex. D 8, Deviram D.9, & Hotilal Ex. D. 10), but curiously enough, there is no discussion on record on the part of the prosecution to explain those injuries found on the persons of the accused side, and the prosecution witnesses merely pleaded their ignorance about causing of those injuries. Thus, the question does also arise as to whether non-explanation of the injuries having been found by the doctor and by the trial court being caused in the impugned melee on the persons of the accused side, is fatal to the prosecution or not.
14. Since none of the parties assailed the findings arrived at by the trial Court as to a case of free fight, we deem the instant case as of free-fight, and now pass on to deal with a significant question as to whether in a case of free fight, the appellants could be convicted for the principal offence of murder with the aid of Section 34, IPC.
15. In K.N. Virji v. State of Gujarat , it had been observed:
Where there was a melee at the time of the incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of two, if the court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight, then only those persons who are proved to have caused injuries or death can beheld guilty of the offence individually committed by them.
And, as expounded in Vishwas v. State of Maharashtra , in a free fight, no right of private defence is available to either party and each individual is responsible for his own act. Having benefited by the enlightments derived from the above proposition of law, in our view also, in a free fight, there is no common object or intention. Since there is no common object or intention in a free fight, the accused in such a case cannot be convicted by having recourse to either Section 149 or 34, IPC. Undisputedably, the case at hand is a case of free fight. Therefore, there is no scope to invoke Section 34 or 149, IPC, as has been laid down by this Court in Surgyani v. State of Rajasthan 1989 (1) R.L.R. p. 189 after taking aid of the proposition of law laid down in the decisions of the Apex Court, referred to above. That being so, we find from a bare perusal of the order passed in bail petition of the present appellants, on 10.4.89, that this Court while granting relief of suspension If the impugned sentence observed that prima facie the approach taken by the learned Sessions Judge, Bharatpur in applying Section 34, IPC taking the case to be a free fight is erroneous.
16. After taking into consideration the facts and circumstances together with the findings of the lower court as to the case of a free fight, in the case at hand, we are unable to maintain the conviction of appellants named above, under Section 302 read with Section 34, IPC.
17. This leads us to find out individual acts or assaults of individual appellant. Having given a thoughtful consideration to the prosecution evidence, we are of the considered view that the eye witnesses of the prosecution failed to give out or attribute or assign any specific overt-act against each of the appellants individually. Hardevi (Pw 1) who claimed herself to be eye witness of the impugned incident being shown to have been present at the scene of occurrence and having sustained injuries in the melee in question, nowhere in her statement stated as to which of the accused caused which of the injuries on which of the parts of persons of either deceased or the injured.
18. In this view of the matter, the learned trial court erred in finding the appellants guilty of the offence punishable under Section 302 read with Section 34, IPC. A look at the evidence on record shows that the impugned incident had taken place all of a sudden. As already held above, the parties indulged in the incident in question have suppressed the genesis and origin of the occurrence. No motive has been shown by the prosecution for the incident against the appellants.
19. In Puran v. State of Rajasthan , their Lordships of the Supreme Court observed as under:
In a case of sudden mutual fight between the two parties, there can be no question of invoking the aid of Section 149 for the purpose of imposing constructive criminal liability on an accused. The accused in such a case can be convicted only for the injuries caused by him by his individual acts.
The prosecution witnesses in the case at hand has come with their version that it was one side attack on them by the appellants and it has rightly been held to be baseless under the impugned judgment. Similarly there is no positive evidence to show as to which of the parties first indulged in the melee. We, therefore, find it difficult to accept that the trouble started in the manner suggested by the prosecution. Further, the non-explanation of the injuries on the persons of the appellants and their associates by the prosecution and the other infirmities in the prosecution case do not permit us to believe that the trouble originated in the manner alleged by the prosecution.
20. Before we pass on to deal with third significant question as to the non-explanation of the injuries found on the persons of the accused side, we deem it just to have a brief resume of special features which cast doubt on the veracity of the prosecution evidence.
21. Parcha Beyan of Smt. Hardevi (Pw 1) was recorded by the police on 14.9.1987 at 3.10 whereas the F.I.R. on the basis of such a Parcha Beyan was recorded after a delay of about two days as it was chalked out at police station Nadbai on 16.9.1987. Even after recording of Parcha Beyan and chalking out F.I.R. On 16.9.1987, the site plan was prepared on 19.9.1987 after a delay of three days from registering criminal case at the police station and of 5 days from the day of occurrence. Moreover, even statement of injured Murari, & Smt. Hardevi was recorded by the police after three days of the incident, while they were very much available in the hospital after being admitted therein right from 14.9.1987, in a conscious state of mind. Statement of Saroj was recorded by the police on 19.9.87 while that of Chhitar was recorded on 23.9.87. Further, statements of Puran & Karan Singh appear to have been recorded by the police after a delay of nine days from the day of occurrence and seven days from the day of registration of the criminal case at police station, i.e. on 23.9.87. There is no explanation by the prosecution as to the aforesaid delay in recording the F.I.R. and police statements of the prosecution witnesses.
22. After the inquest report and autopsy report of the deceased was prepared on 17.9.1987, they were sent bySahab Singh, Incharge Police Out post, Mathura Gate, Bharatpur on 19.9.1987 to SHO Kotwali Bharatpur who received it on 20.9.1987 under Despatch No. 16169, and the SHO PS Kotwali despatched it for its onward transmission to SHO PS Nadbai on 21.9.1987 vide despatch No. 999, and it was received by the SHO PS Nadbai on 21.9.87 as is evident from the endorsement made by Bhagwan Singh (Pw 11) thereon. This letter finds place in the file of cr. case No. 10/88 of the present F.I.R. No. 186/87, instituted at the court of Addl. Chief Judicial Magistrate No. 2, Bharatpur (at page marked as A4/12). In this view of such a situation, we find it difficult to understand as to how could the investigating officer know that the deceased died before 21.9.1987 and on what basis the investigating Officer entered Section 302, IPC in site inspection note prepared on 19.9.1987 before 21.9.1987. However, it Casts doubt on the conduct of the investigating agency raising adverse inference that in order to cover up the lacunas on the part of the investigating agency, the documents have been ante-timed and dated.
23. According to the Parcha Beyan, Smt. Hardevi had come to her parents place of abode upon call by her father whereas according to her statement before the trial Court, she had come to her parents village alongwith her father and her father was moving ahead at some distances. Similarly, according to her Parcha Beyan which she exaggerate not only in her police statement under Section 161, Cr.P.C. but also in her statement before the trial Court by way of embellishments in whole hog to support the story of implication of the appellants in the alleged crime, when as soon as she reached the village, she found her father in the company of her sister, Saroj & her husband, including in wordy quarrel and melee in between Devi, Ramjilal, Hoti, Durgi & their women, and they were beating her father etc. but in this Parcha Beyan, no specific overtact has been assigned to the accused persons whereas by exaggeration in the police statement under Section 161, Cr.P.C. and the court statement, she deposed that she had seen the beating at the instance of the appellants upon the person of her father etc., but there also, she has not given or specified any overtact of blow dealt by each of the appellants. There have been bald allegations that they used lathi for inflicting blows on the deceased by the accused whereas they have not uttered any thing about overt act in the Parcha Beyan and police statements indulging the accused in the commission of the crime in question.
24. According to Saroj, she was coming alongwith her father, Chhidi, her sister, Smt. Hardevi and her husband, Murari and when they reached near the field of Kamal, they were surrounded by the accused persons, whereas according to Smt. Hardevi, she was coming all alone alongwith her husband and just ahead them, her father, Chhidi was moving.
25. In this view of such an evidence on record, in our view, the prosecution witnesses in the instant case have given distorted version of the incident and have changed the entire version - what to talk of attribution of overtact to the accused persons - by making gross improvenments in the version on material particulars from that which had been given in the first information report and the police statements so also before the trial Court. Thus, in our view, it is a case where truth and falsehood are so inter-mingled and it is difficult to make it possible to separate the truth from falsehood and in this state of thing, we have no option but to reject the prosecution evidence in its entirety, as is the trite law laid down in B.T. Patil v. State of Maharashtra .
26. Let us pass on third significant question as to the non-explanation of the injuries on the person of the accused side.
27. In Lakshmi Singh v. State of Bihar , their Lordships of the Supreme Court observed as under:
In a murder case, the non-exaplantion of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
28. According to the decision (supra), the commission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
29. The learned Public Prosecutor contended that the injuries on the persons of the accused are superficial in nature. From a bare perusal of the record consisting of injury reports (Ex. D.8 to D.10), the contention of the learned Public Prosecutor is totally bizzare and barren of force because, Ramjilal sustained lacerated and incised wounds on the vital part of his body i.e. eye in addition to one fracture. Devi also sustained one lacerated wound on the right arm. Hotilal also sustained three injuries which cannot also be stated to be superficial in nature. Moreover, no question was put to the doctor so as to suggest that these injuries were spesficial in nature rather the doctor has given out a consistent statement proving the injuries found on the persons of the accused side.
30. In the case at hand also, as has rightly been found by the trial court, itself, the prosecution has suppressed the genesis and the origin of the occurrence and thus has not presented the true version, inasmuch as the witnesses have denied the presence of the injuries on the persons of the accused and thus they have given out a belied version on a most material point and in this view of the circumstances on record, their evidence stands unreliable as it throws doubt on the prosecution case. Further more, the present one undoubtedly is a case where the evidence consists of interested and inimical witnesses and in such a case, like the present one, the prosecution witnesses have failed to explain the injuries on the person of the accused. Such as omission on the part of the prosecution to explain in the injuries of the accused persons assumes greater importance in the facts and circumstances of the given case. Thus, we can not brush aside such serious infirmity in the prosecution case regarding non-explanation of injuries sustained on the person of the accused side on unconvincing premises particularly in view of the inherent improbabilities, distorted, interested and inimical nature of the evidence.
31. For the reasons stated above, the prosecution had miserably faled to prove the case against the appellants beyong reasonable doubt. And, the impugned conviction imposed upon the accused-appellants, cannot be sustained.
32. In the result, we allow this appeal, set aside the impugned conviction and sentences under the impugned judgment passed against the accused appellants. The appellants are acquitted of the offences under which they were convicted by the trial court. The appellants are on bail and need not surrender. Their bail bonds stand discharged.