Rajasthan High Court - Jaipur
Babu And Ors. vs State Of Rajasthan on 18 May, 2007
Equivalent citations: RLW2007(4)RAJ2943
Author: Guman Singh
Bench: Guman Singh
JUDGMENT Shiv Kumar Sharma, J.
1. Babu, Pooran, Radhey @ Radhey Shyam and Narsi @ Narsi Ram, the appellants herein, were put to trial before learned Additional Sessions Judge (last Track) Hindaun City, who vide judgment dated November 22,2002 convicted and sentenced them as under:
Under Section 302/34 IPC:
Each to suffer imprisonment for life and fine of Rs. 500/-, in . default to further suffer rigorous imprisonment for three months. Under Section 323/34 IPC:
Each to suffer rigorous imprisonment for six months.
The substantive sentences were ordered to run concurrently.
2. It is the prosecution case that on February 21,2001 informant Mahendra Singh submitted a written report (Ex. P. 3) at Police Station Todabhim stating therein that on the said day around 11 AM while Prahlad was coming with some food articles from Ajeej Salimpur he was way-led near Tube-well by Radhey, Narsi, Ramavtar, Babu and Pooran, who were armed with lathis and Dharias, Radhey, Narsi and Babu inflicted lathi blows on the head of Prahlad, as a result of which he fell down. Ramavtar, Pooran, Sabooti and Kapoor also caused injuries on the person of Prahlad. Prahlad was removed to the hospital where he was declared dead. On that report a case under Sections 147, 148, 149, 323, 341 and 302 IPC was registered and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded and after completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Hindaun City. Charges under Sections 323/34 and 302/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 14 witnesses. In the explanation under Section 313 Cr.P.C, the appellants claimed innocence and stated that since they have lodged cross case, therefore they have been implicated falsely. One witness in support of their defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
3. We have heard learned Counsel for the appellants, learned Counsellor the complainant and learned Public Prosecutor and with their assistance scanned the material record.
4. Death of Prahlad was undeniably homicidal in nature. As per Post Mortem Report (Ex. P. 8) following ante mortem injuries were found on the dead body:
1. Diffuse swelling of 15 cm x 5 cm on right parietal occipital region ; of head. This swelling extend upto mid parietal region in this swelling also seen depression in right parietal region size of depressed area is 4 x 3 cm two lacerated wound present. The size of wound as follows:
(a) Lacerated wound of 4 cm x 1 cm x bone deep on parietal region new mid line of head on examination of head bleeding is positive.
(b) Lacerated wound of 3.5 cm x 1.5 cm x bone deep onright parietal region 5 cm lateral to wound A. On dissection of the skull shows fracture-multiple fracture of right parietal bone size fracture bone is 4 cm x 2.5 cm fragments of the clotted blood present oh brain matter.
2. Red black bruise present all over the right eye bow & eye lid & adjoining part of forehead.
3. Diffuse present all over the left eye brow, eye lid adjoining part of forehead.
4. Abrasion of 2 cm x 1 on left shoulder joint region.
5. Swelling of 6 cm x 3 cm present on abdomen both side to mid line! below the umblicus on dissection no hematoma present below that injury.
In the opinion of Dr. Ram Lal Meena (PW. 9) the cause of death was head injury leading to fracture.
5. We have also noticed the injuries sustained by Smt. Saroopi (PW. 7), Vijendra Singh (PW. 10) as well as the injuries received by the appellants Babu Lal, Pooran, Narsi, Radhey Shyam, Shri Kishan and Dropati. Details of injuries are as under:
Smt. Saroopi (PW. 7) vide injury report (Ex. P. 9) received following injuries:
1. Deep abrasion of 1.5 cm x .5 cm on wrist joint right forearm.
2. Swelling of 5cm x 3 cm on left forearm.
Vijendra Singh (PW. 10) vide injury report (Ex. P. 10) received following injuries:
1. Brownish red bruise with swelling of 12 cm x 4 cm on left arm lower 2/3 part antromedial aspect tenderness.
2. A branded bruise of 7 cm x 2.5 cm on right forearm lower part.
Appellant Babu Lal vide injury report (Ex. D-7A) received following injuries:
1. Bruise 4 cm x 3 cm on middle of dorsum aspect of Rt. forearm.
2. Bruise with tenderness 5 cm x 4 cm in size on Rt. scapula Appellant Pooran vide injury report (Ex. D. 8) received following injuries:
1. Bruise with tenderness 5 cm x 3 cm middle of It. Forearm.
2. Bruise with tenderness 5 cm x 4 cm on dorsum of Lt. in and at Metacorpal joint.
3. Bruise 4 cm x 2 1/2 cm on lat. aspect of It. upper arm.
4. Bruise with tenderness 5 cm x 4 cm on Lt. shoulder joint.
Appellant Narsi vide injury report (Ex. D. 9A) received one abrasion of 6 cm x 4 cm on front Rt. upper chest.
Appellant Radhey Shyam vide injury report (Ex. D. 10A) received following injuries:
1. Bruise with tenderness 4 cm x 3 cm on thumb of Lt. hand at Metacorpal joint.
2. Bruise with tenderness 5 cm x 4 cm on Rt. Shoulder.
3. Bruise with swelling 3 cm x 2 cm on Rt. side of occipital protu-beraine.
4. Bruise with swelling 3 1/2 x 2 cm on middle of Rt. pareital prominium.
Shri Kishan vide injury report (Ex. D.l1A) received following injuries:
1. Incised wound with clotted blood 5 cm x 1 cm x 3/4 cm on parietal, occipital region of scalp at the middle.
2. Incised wound with clotted blood 2 1/2 cm x 1/2 cm x skin deep transversaly at middle of forehead.
Dropati vide injury report (Ex. D. 12A) received following injuries:
1. Incised wound with bleeding 4 cm x 1 cm x bony deep vertically on forntal parietal region of scalp at middle.
2. Bruise with tenderness 5 cm x 3 1/2 cm on Rt. shoulder.
6. Injured Saroopi (PW. 7) in her deposition stated that on the fateful day on hearing hue and cry when she reached to the place of incident she saw her husband surrounded by Radhey, Narsi, Babu, Pooran, Ramotar, Sabuti and Kapur. Radhey, Narsi and Babu and other accused inflicted injuries on the person of her husband as a result of which he fell down. He was removed to the hospital where he died, Testimony of Saroopi gets corroboration from the evidence of Vijendra Singh (PW. 10).
7. In support of the defence version the appellants examined Dr. Hari Singh Bhandari (DW. 1) who had seen the injuries of Babu Lal, Pooran, Narsi, Radhey Shyam, Shri Kishan and Dropati and drew injury reports Ex, D. 7A, Ex. D-8A, Ex. D. 9A, Ex. D. 1OA, Ex. D. 11A and Ex. D. 12A. A perusal of Ex. D. 5 shows that cross case was registered on the report of Shri Kishan against Prahlad, Bheemraj, Abhay, Mahendra, Dan Singh, Vijendra, Keshav, Saroopi, Jal Singh, Piro and B'a'ttu who were the members of complainant party.
8. Fact situation emerges from the material on record may be summarized as under:
(i) There was a dispute regarding between the appellants and the, complainant party regarding the path way.
(ii) Something which has not been completely unravelled might have sparked off the incident.
(iii) On the date of incident a fight ensued and the deceased died in the course of sudden and free fight.
(iv) The deceased's party was also armed with weapons.
(v) Cross cases were registered between the parties.
9. Having closely scrutinised the testimony of prosecution witnesses we notice that complainant party and accused party had a dispute in regard to path way and both the parties freely fought all of a sudden and accused appellants suffered injuries on vital parts of the body, but the prosecution failed to give any explanation of such injuries. This fact situation gives rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence and thus not presented the true version.
10. Their Lordships of Supreme Court in Subramani v. State of T.N. in regard to non explanation of injuries sustained by the accused indicated as under:
The appellants suffered injuries on vital parts of the body, even though simple but the prosecution failed to give any explanation for such injuries. The prosecution feigned ignorance about the injuries suffered by the appellants. It is not possible to accept the submission that the injuries being simple, the prosecution was not obliged to give any explanation for the same. Having regard to the facts of the case the omission on the part of the prosecution to explain the injuries on the person of the accused may give rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence and had thus not presented the true version.
11. In Vajrapu Sambayya Naidu v. State of A.P. (supra) the Apex Court held that where the injuries sustained by the accused were not explained by the prosecution it probabilise the case of defence that the prosecution party was the aggressor.
12. On analysing the evidence adduced at the trial, we find that on the date of incident free fight ensued and the complainant party was also armed with sharp edged weapons. The injured witness Saroopi (PW. 7) attributed the head injuries of deceased to Babu, Radhey and Narsi but she has not attributed any injury to Pooran. The injuries sustained by the deceased in the course of sudden and free fight resulted in his death. In the facts and circumstances of the case it could not be said that appellants Babu, Radhey and Narsi acted in cruel or unusual manner and the case against these appellants clearly fell within Exception 4 of Section 300 IPC. These appellants however were rightly convicted under Section 323/34 IPC for causing injuries to other witnesses. Since free fight ensued and no injury has been attributed to Pooran, in the facts and circumstances of the case the possibility that Pooran was over implicated cannot be ruled out and he is entitled to benefit of doubt.
13. For these reasons, we dispose of instant appeal in the following terms:
(i) We allow the appeal of appellant Pooran and set aside his vonviction and sentence under Sections 302/34 and 323/34 IPC. We acquit him of the said charges. Appellant Pooran is on bail, he need not surrender and his bail bonds stand discharged.
(ii) We partly allow the appeal of appellants .Babu, Radhey @ Radhey Shyam and Narsi @ Narsi Ram and instead of 302/34 we convict each of them under Section 304 Part II read with 34 IPC to suffer rigorous imprisonment for five years. We however confirm their conviction and sentence under Section 323/34 IPC. Appellants Babu and Narsi , @ Narsi Ram are on bail, they shall be taken in custody forthwith and their bail bonds stand cancelled. Appellant Radhey @ Radhey Shyam, who has already served out the sentence awarded to him, shall be set at liberty forthwith, if he is not required to be detained in any other case.
(iii) The impugned judgment of learned trial Court stands modified as indicated above.