Rajasthan High Court - Jaipur
Babu Alias Om Prakash And Anr. vs State Of Rajasthan on 19 September, 1989
Equivalent citations: 1990(1)WLN454
JUDGMENT I.S. Israni, J.
1. This S.B. Crminal appeal under Section 374(2), Cr.PC has been filed against the judgment and order dated 1st April, 1981, passed by learned Additional Sessions Judge, Kota, in Sessions Case No. 46/1979, by which accused appellant Babu alias Om Prakash was convicted for offence under Section 307 read with Section 34, IPC and sentenced to rigorous imprisonment for three years and accused-appellant Satyendra Prakash was convicted for offence Under Section 307, IPC and sentenced to similar imprisonment.
2. It will suffice to state for the purposes of this appeal that Kaloo Lal submitted a written report to SHO, Kunhadi on January 7, 1979 at Kunhadi Petrol Pump, wherein it was alleged that in the morning at about 10 a m. Om Prakash alias Babu and his brother Satyendra Prakash has injured his brother Chittarlal with knife. Lot of blood has oozed from his stomach and he has been admitted in the hospital as his condition was, serious. It was further alleged that his brother was given beatings by Onkar Meena and Kalyan Gurjar also. The quarrel had taken place due to dispute' about 'Bara. Panna Lal, Laxmi Narain and others were mentioned as eyewitnesses of the incident. On receipt of this report, a case under Section 307/34, IPC was registered and challan was filed after completing the investigation. The case was committed to the sessions court for trial from where it was transferred to Additional Sessions Judge, Kota. After framing the charge against the accused appellants, prosecution examined as many as nine witnesses in support of its case and the accused were examined under Section 313, Cr. PC. All witnesses were produced in denfence. After hearing the parties the trial court convicted the accused appellants as mentioned. Hence this appeal.
3. It is contended by Shri Biri Singh, learned Counsel for the appellants that there are several contradictions in the statements of the witnesses. It is pointed out that even though in FIR, it was mentioned that Kalyan Gurjar and Onkar Meena also gave beatings to the injured Chittarlal but both these persons were not challaned and Kalyan was produced at witness. Therefore, no reliance can be placed on FIR. It is contended that from the statement of PW 1 Kalu Lal and PW 3 Kanchan Bai, wife of the injured, several-contradictions have come-up. It is submitted that there is no independent eye-witness to the incident Even through PW 1 Kalu Lal, brother of the injured Chittar has been introduced as an eye-witness, from his own statement, it is evidence that he was not present on the scence of occurrence. PW 3 has wrongly stated that PW 1 Kalu Lal was present at the time of incident PW 4 Panna Lal Head-Constable, who lives in the neighbourhood of the injured is also introduced as an eye-witness but from the statement of PW 3 Kanchan Bai, it is evident that he reached the spot at the time when the injured person was lying injured on the floor. PW 5 Kalyan Mal has himself stated that he was not present at the spot. Laxmi Narain, PW 9 who was also introduced as an eye-witness has been declared hostile. It is, therefore, submitted that the only testimony that remains is that of injured Chittarlal PW 7 and Snot. Kanchan Bai, PW 3, wife of Chittar Lal. It is, therefore, urged that no reliance can be placed on these two statements for the purposes of convicting the accused appellants. It is further pointed out that it cannot be said who inflicted the grievous injury which is said to be dangerous of life. Both the accused persons are alleged to have given knife blows to the injured Chittar Lal, therefore, it cannot be said who was the author of the injuries, which was considered dangerous to life. It is also pointed out that Chittar Lal, PW 7, who is injured person has stated in his statement that accused appellant Babu set-over him on his chest and started giving him blows with his hands and foot. It is pointed out that there is no indication in the injury report Ex. P. 4. regarding any such injuries which were likely to be caused if severe blows and beatings by foot were given to the injured person. Lastly, it is urged that it has come in the statement of PW 8 Ham id Ali SHO/IO that since the injuries of Chittar Lal were quite severe and he was bleeding profusely he had requested the Magistrate to come to hospital and his statement (Nazai) was recorded. It is contended that the Statements of the injured which was recorded by a Magistrate has not been produced and, therefore a valuable right of cross-examining the injured Chittarlal and Investigating Officer Ham id Ali has been lost and, therefore, conviction is liable to be set-aside on this ground.
4. It is also stated that accused appellant Babulal has stated in his statement recorded under Section 313 Cr. PC that the village-Panchayat had, demarcated the place in 'Bara' over which he was permitted to construct the well as there was dispute between Chittar Lal and the accused appellants regarding that Bara. It is submitted that Chittar Lal was drunken and started abusing when the work of constructing the well on the demarcated line was started. It is also stated by him that he attached him and the accused appellants tried to save himself. Therefore, it is stated by learned Counsel that it is Chittar Lal who had attached the accused-appellant Babu Lal and Chittar Lal has received injuries while the accused-appellants were saving themselves from the attack of Chittarlal. It is also pointed out that accused appellants have produced two witnesses in defence who had also corroborated the defence put up by the accused-appellants.
5. Shri Suresh Sharma, learned Public Prosecutor contends that apart from any other statement, the statements of injured Chittar Lal and his wife Smt. Kanchanbhai PW 3 are sufficient in all respects to prove that the accused appellants have committed the offence and canted grievous injuries to injured Chittarlal. It is also pointed out that injuries caused to Chittarlal were so grievous that he had to put on operation table to save his life. It has been stated by PW 10 Dr. O.P. Mathur that the injury caused in ordinary course of nature was sufficient to cause death if it bad not been treated in time. It is also pointed out that from the statement of this witness, it is amply proved that the greivous injury was caused by accused appellant Satyendra Prakash as it has been clearly alleged by PW 7 Chittar Lal also. It is also submitted that no objection regarding non-production of any statement of Chittarlal recorded is hospital was raised in trial court and in any case Chittarlal and Hamid Ali, Investigating Officer have come in the witness-box and accused appellants had full opportunity to cross-examine them. Therefore no prejudice can be said to have been caused to the appellants on this account. Regarding the fight of private defence, it is contended by learned Public Prosecutor that the theory has been put forward merely to save the accused appellants from the consequences of tike serious offence committed by them as appellant Babu alias Om Prakash bas not described in his statement recorded under Section 313, Cr.PC regarding the weapon used by Chittarlal white attacking him. It is also slated that even though appellant Babu himself does not state that with what weapon he was attacked DW 2 Shankarlal who was doing work of mason for constructing the well for accused-appellants states that Chhitarlal came sunning with intention to attack Babu Lal with knife, so be ran away. This merely shows that this is a made-up story to cover the offence committed by the accused-appellants.
6. I have carefully heard the arguments advanced by both the sides, gone through the judgment of the trial court, documents on record and the evidence produced by both the sides.
7. The learned Counsel for the appellants has mainly raised following points in defence of the accused-persons --(i) that the alleged dying declaration of the injured was not produced and, therefore, a valuable right to cross-examination was lost, (ii) there are no independent eye-witness, (iii) there are several important contradictions in the statement of prosecution witness therefore, no reliance can be placed on the prosecution story, (iv) it is not clear from the prosecution evidence as to who caused the grevious injury which has been in ordinary course to cause death, (v) the statement of injured is not corroborated by injury report in as much as there is no evidence to show that Babu set over the injured and gave him blows with fists and feet etc. lastly that the injured PW 7 who has armed with knife and drunk attacked them with knife, therefore, the appellants had right on private defence.
8. So far as son-production of the statement of injured said to have been recorded which the learned Counsel calls to be dying declration, is concerned, it may be stated that the injured PW 7 and Hamid Ali PW 8, the SHO both entered the witness-box and the appellants had full opportunity to cross-examine them. Therefore, it cannot be said that any valuable right of cross-examining these witnesses was lost. In fact the contradictions pointed out by the learned Counsel which have been mentioned above are minor and natural when statements of several witnesses regarding a particular incident are recorded. More over these contradictions do not cause any shadow of doubt on the varacity of the incident as given in the statements of the prosecution witnesses. PW 3 Kanchan Bai the wife of the injured has clearly stated that Kalyan Gurjar and Onkar Meena did not give any beatings to her husband the injured, even though PW 7 Chhitarlal the injured has stated that Onkar Meena and Kalyan Gurjar also gave him beatings. Kalyan Gurjar PW 5 has stated in his statement that he took knife from the hand of the injured and it seems on this account perhaps the injured person thought that he also gave him beatings On this account it cannot be said that FIR Ex. P. 2 is not worth relying. The principles of 'falsus in uno, falsus in omnibus' is not applicable in our country. PW 3 Kanchan Bai has also stated in her cross-examination that she was cooking food and came out on hearing shouts of quarrel. The place of occurrence is about 10-15 ft. away from her house. She bas also stated that Kalulal the brother of the deceased was present at that time. Merely because the name of Kalulal does not appear as eye-witness in FIR, is not reason to disbelieve her statement when she has come out unseathed from cross-examination. Her statement under Section 161 Cr.PC. Ex D3 was recorded on the day of occurrence itself.
9. The appellants are charged to have committed offence under Section 307 and read with Section 304 IPC. PW 1 Kalulal has stated that he was in 'Kunadi' outside his house when appellants, came. Appellant Satyendra caused injury with knife in stomach of his brother PW 7. Another blow with knife was given by Babu alias Om Prakash in stomach of the injured. Both the appellants caused one blow each with knife. PW 3 Kanchan Bai has stated: that accused-appellants were throwing stones inside their 'Bada'. When her husband asked then not to do so, the appellants caught hold of her husband at neck and threw him on the floor and started beating him with first and feet. Thereafter both the accused-appellants caused knife blows to her husband in stomach. She has stated that when Pannaji PW 4 came at the site her husband was lying injured on the floor and was bleeding Kalulal was also present at the piece of occurrence. She has further stated that when she came out from her house her husband was lying on the floor and both the accused-person s were giving blows of knife to her husband. She has clearly stated that the blows of the knife were given in her presence. PW 7 Chhittarlal the injured has stated that when the appellants started removing stones of his wall he stopped them from doing so thereupon Om Prakash (Babu) caught hold of him at the neck and threw him down on the floor, and gave him few blows with fists and appellant Satyendra gave him knife blow on the right side and little down below Om Prakash (Babu) also gave him a blow of the knife. He has further stated that Satyendra ran away after giving him blow of the knife and he thereafter stood up when Om Prakash (Babu) gave him another blow of the knife. Thus it is clear that each of the accused appellants caused one knife blow to the injured in his stomach PW 7 his described in details about the beatings and knife blows given to him which is also corroborated by PW 1 and PW 3, PW 4 Pannalal and PW 9 Laxmi Narain have stated that the injured was put in Autorickshaw and take into hospital PW 4 has stated that be took the injured to hospital. On the way he enquired from him bow all this happended, the injured told him that Om Prakash (Babu) and Satyendra have given him knife blows. He has also stated that blood was oozing out from the right side. Thus PW 4 also corroborates the evidence of PW 7. From the other evidence on the record it is also proved that the injured was taken to the hospital by PW 4 and PW 9. PW 6 Dr. M M Mishra has proved injury report Ex. P. 6. He has stated that two injuries were caused were incised wound and third injury on the nose was caused by some blunt weapon. This the statement of eye-witness is fully corroborated by the medical evidence also. From the evidence discussed above I am of the considered opinion that the prosecution has successfully proved beyond any doubt that the injuries to the injured person were caused by the appellants.
10. It is contended by the learned Counsel that the prosecution has failed to prove who caused the injury No. 1 which is said to be dangerous to life by Dr. Mishra PW 6. It is contended by the learned Public Prosecutor that once it is proved that both the appellants had come with common intention of causing bodily injury to the injured person it is not necessary for the prosecution to prove that which of the accused-persons caused such injury which is termed to be dangerous to life. Reliance has been placed on State of Maharashtra v. Kalu Shivram Jagtap and Ors. . Chhitarlal PW 7 the injured has stated in examination in chief that accused-appellant Satyendra gave him knife blow on right side in his stomach and down below that injury, Om Prakash (Babu) gave him another knife blow in the stomach. Thus, he has also stated clearly in his cross-examination Thus, is clear that two injuries with knife were caused in the stomach of the injured by the appellants. First injury was caused by appellant Satyendra and thereafter second injury down below the first injury was caused by accused-appellant Om Prakash (Babu). From the statement of PW 6 Dr. Mishra, it is clear that since the injury No. 1 was dangerous to life the injured was operated immediately which was done by Dr. O.P. Mathur This witness was also present at the time of operation. He has proved Ex. P. 4 the injury report. He has given details of both the injuries in his statement and also given scatch of the injury on Ex.P 4. He has also stated that both the injuries could be caused with a knife. If immediate operation had not been performed injury No. 1 was sufficient to cause death of the injured person. The condition of the injured was serious. Thus, it is clear from the evidence discussed above and also the statement of Doctor Mishra PW 6 and injury report Ex. P 4 that first injury which was caused by accused-appellant Satyendra was dangerous to life and sufficient to cause death in ordinary course and injury No. 2 was caused by accused appellant Om Prakash (Babu). Thus, certain essential factors to being the offence committed by the accused appellants within the perview of Section 307 IPC have clearly emerged (i) it has been established, quite objectively, that a bodily injury has been caused to the injured, (ii) the nature of the injury has also been proved (iii) it has also been proved that the accused-appellants intentionally inflicted the particular injuries on the person of the injured meaning thereby that the injury caused to the injured person were not accidental unintentional, lastly it has also been proved that the injury of the type caused to the injured which consists of the elements mentioned above was sufficient to cause death in the ordinary course of nature Both the accused-persons were armed with knives and participated in the assault on the injured equally, both of them came together and after inflicting the injuries on the injured gone away from the place of occurrence almost together. Thus, there can be hardly any doubt that the common intention of both the accused-appellants was to cause the injuries which could have proved fatal in the ordinary course of nature but for the timely medical aid provided to the injured-person. It has come in the evidence that the first injury was of such nature which even damaged liver which had to be repaired during the operation.
11. The contention of the learned Counsel for the appellants that they had inflicted these injuries in self defence when the injured assaulted them has also no force. Appellant Babu in his statement recorded under Section 313 Cr. PC has stated that there was dispute between the injured and the appellants regarding a 'Bada' and the Panchayat had demarcated the portion of the injured and the appellants. When on the day of occurrence lie went to see how the work was being done on the demarcated land injured was sitting at the site and started abusing him. He also assaulted him. The appellant thereupon tried to defend himself. There was no land belonging to injured where the construction was being done. PW 2 Shankar Lal is one of the mason who was working on the site en the day of occurrence. He has stated in his statement that as soon as Babu came on the site injured immediately came running with knife in his hand to attack Babu and injured was drunk at that time. Thereupon, he ran away from the site. their PW 1 Kalulal has clearly stated in his statement that accused-appellants were constructing wall inside their 'Bada' where they tied there cows. He has also stated that neither any area belongs to the appellants nor is in their possession where the construction was being done. He has also stated that they have Patta of his land. He has further stated that the place where the construction was done that appellants claimed It to be in their possession even though it had never remained in their possession. No question regarding holding of any Panchayat was put to this witness. Pw 7 Chhitarlal the injured has also denied that any meeting of Panchayat had taken place and demaroation of the 'Bada' had been done by the Panchayat PW 3 Kanchan Bai has also denied that any Panchayat had taken place a day earlier than the incident took place PW 1 Kishanlal has stated on 5-1-1979 he himself and Bhanwar Katariya has settled the dispute between the parties and a line on demarcation had been pat over which accused-appellants could raise a wall. At that time Ram Nivas, ASI of Kunadi Police Station was also present and settlement was produced in writing. How ever, no such writing has been produced in evidence. Thus it can be said that there is no evidence on record to prove that any decision of Panchayat bad been given, demarcating the portion of 'Bade' in possession of appellants. More-over from the evidence it is clear that the injured objected to the construction of wall only when the construction was started in the 'Bada' in the possession of injured since long Apart from this there is no evidence on record to show that injured Chhitarlal trad-passed over any land in possession of the accused-appellants. Thus, it can be said that the accused-appellants had no possession, what to talk of settled possession, to the exclusion of ethers, over the portion of the land on which they-Wanted to construct a wall. Therefore, it cannot be said that the accused-appellants bad any right to defend their private property.
12. The judgment of the trial court is in details in which the full evidence and legal aspects have been fully discussed. I, therefore, do not find it necessary to burden this judgment any move. The appeal filed by the appellants is dismissed. The appellants are on bail, their bail bonds are forfeited and they shall surrender for undertaking the remaining part of their imprisonment, any period for which the accused-appellants remained in imprisonment during the proceedings sat any time shall be counted towards the imprisonment awarded to them.
13. In the result, the appeal is dismissed.