Rajasthan High Court - Jaipur
Rohitash vs State on 23 October, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur Judgment 1.D.B Criminal Appeal No.346/2004 Jagmal Singh, Mahendra & Deshraj vs State of Rajasthan through Public Prosecutor
2.D.B Criminal Appeal No.248/2004 Surendra Yadav and Chandan vs State of Rajasthan through Public Prosecutor
3.D.B Criminal Appeal No.449/2004 Rohitash vs State of Rajasthan through Public Prosecutor Under section 374 Cr.PC against the judgment dated 17.02.2004 passed by the Additional Session Judge (FT) No.1, Alwar in Sessions Case No.54/2001(60/2000) Date of Judgment :: 23.10.2013 Present Hon'ble Mr.Justice Mohammad Rafiq Hon'ble Mrs.Justice Nisha Gupta Mr. Sri Ram Yadav, counsel for appellants Mr. Javed Choudhary, Public Prosecutor for the State.
By the Court(per Justice Mrs Nisha Gupta) These three Criminal Appeals arise out of a common judgment, hence are decided by this common judgment.
All these appeals have been preferred under section 374 Cr.PC against the judgment dated 17.02.2004 passed by the Additional Session Judge (Fast Track) No.1, Alwar in Sessions Case No.54/2001(60/2000) whereby the accused-appellants have been convicted and sentenced as under:-
Appellants-Jagmal Singh, Mahendra, Deshraj,Surendra Yadav and Chandan Under section 302/149 IPC: Imprisonment of life with fine of Rs. 2000/-each, in default of payment of fine to further undergo rigorous imprisonment of one year.
Appellant-Rohitash Under section 302 IPC: Imprisonment of life with fine of Rs. 5000/-, in default of payment of fine to further undergo rigorous imprisonment of one year Appellants-Jagmal Singh, Mahendra, Deshraj,Surendra Yadav, Chandan and Rohitas Under section 148 IPC: Rigorous imprisonment for three years with fine of Rs.500/-each, in default of payment of fine to further undergo simple imprisonment for three months Under section 323 IPC: Rigorous Imprisonment of one year Under section 447 IPC: Rigorous Imprisonment of three months Appellants-Jagmal Singh, Mahendra, Deshraj,Surendra Yadav and Rohitas Under section 324/149 IPC: Rigorous Imprisonment of three years with fine of Rs.500/-each, in default of payment of fine to further undergo rigorous imprisonment of three months Appellant-Chandan Under section 324 IPC: Rigorous Imprisonment of three years with fine of Rs.500/-each, in default of payment of fine to further undergo rigorous imprisonment of three months The short facts of the case are that on 15.3.2004, complainant Somdev PW15 lodged a written report Ex.P/18 at 7.15 PM before Police Station, Udyog Nagar, Alwar stating therein that he and his uncle Prabhudayal and Dev Prakash were digging holes for fixing the electric pole. At that time, Mahendra, Rohitash, Jagmal Singh, Surendra, Chandan, Smt Ramrati, Smt Hansa Devi, Chhaganlal and Pradeep Kumar came there having sticks and farshi in their hands and had started beating with them. His sister-in-law Sarla, sister Suman and father Dharmchand came there to intervene, they have also been beaten, other persons from village also came there, then accused persons ran away. Due to beating, Prabhudayal died on the spot. On this, FIR No.87/2000 was registered for the offences under Sections 147,148,302 and 447 IPC and after investigation charge sheet has been filed against the present appellants. Charges have been framed against Rohitash and Mahendra for the offences under Sections 147,148, 302, 302/149, 323/149, 324/149 and 447 IPC and against appellant Deshraj for the offences under Sections 147,148, 302/149, 323,323/149, 324,324/149 and 447 IPC and against appellant Jagmal Singh for the offences under Sections 147,148, 302/149, 323/149,324/149 and 447 IPC and against appellants Surendra Yadav and Chandan under Sections 147, 148, 302, 302/149, 323/149, 324/149 and 447 IPC. They denied the charges and claimed trial. The prosecution has examined witnesses namely PW1 Dr.Amar Singh Rathore, PW2 Rohitash, PW3 Babulal, PW4 Bhagwansahay Saini, PW5 Jansi, PW6 Tilakraj, PW7 Parshuram, PW8 Suman, PW9 Smt. Sarla, PW10 Mahendra, Pw11 Dharmchand, PW12 Banwarilal Gupta, PW13 Devendra, PW14 Radheyshyam, PW15 Somdev, PW16 Dev Prakash and PW17 Bhagwandas. Prosecution has relied upon Ex.P/1 to Ex.P/36.
Statements of accused persons under section 313 Cr.PC have been recorded. Defence has relied upon documents Ex.D/1 to D/20. No oral defence evidence has been produced.
After conclusion of the trial, the appellants have been convicted and sentenced as above, hence this appeal.
The contention of the appellants is that prosecution has miserably failed to prove charges against the appellants. Deshraj has not been named in FIR and no specific allegation has been alleged against him. 9 persons have been alleged in the occurrence whereas Prabhudayal has received only two injuries. Allegations of overt-acts are only against Rohitash and Mahendra and that too are not corroborated with the medical evidence. Prosecution witnesses have not supported the participation of Surendra Yadav and Chandan in the incident. Witnesses have stated in their favour that they were not participating in the incident. They were mere spectators and their only mistake is that they have not intervened to save the complainant party. All the witnesses are relative witnesses and their presence is unnatural. Cross first information report has also been lodged and appellants Jagmal Singh, Rohitash and Deshraj have also suffered injuries and further contention is that the case does not travel beyond section 304 Part-I as the incident has occurred at the spur of moment without any premeditation of mind. Admittedly, complainant party was digging holes for fixing electric pole and dispute was as regard to place where electric pole could be fixed. The deceased has received only one fatal injury and injuries to other injured persons are only simple in nature.
Per contra, contention of learned Public Prosecutor is that prosecution evidence is consistent on the point that appellants armed with weapons have inflicted injury to Prabhudayal and when PW8 Suman, PW9 Smt. Sarla, PW11 Dharmchand, PW15 Somdev and PW16 Dev Prakash came there to intervene, they have been beaten and all these witnesses have also suffered injuries hence their evidence cannot be disbelieved or ignored and there is no infirmity in the finding of court below.
Heard the learned counsel for the appellants and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case.
PW15 Somdev has lodged the FIR and his contention is that on 15.3.2000 at 5 PM, he, Prabhudayal and Devprakash etc. were digging holes to fix new transformer in their land, at that time, appellants named and other persons came there. Rohitash inflicted tanchiya blow on the temporal bone of the deceased whereas Mahendra has inflicted farshi blow on his head. Chandan and Surendra caught hold of Prabhudayal. Chandan inflicted Farshi blow to Dev Prakash. Deshraj inflicted lathi blow to Dev Prakash. Suman PW8, Smt. Sarla PW9 and Dharmchand PW11 also came to intervene there and they have also been beaten. He has further contended that he lodged FIR Ex.P/18 of the occurrence.
PW16 Dev Prakash who is other injured eye witness has also stated that Rohitash inflicted tanchiya blow on the temporal bone of his father. Mahendra has inflicted farshi blow to Prabhudayal. His further contention is that Deshraj and Chandan caught hold of his father and Chandan also inflicted farshi blow to him and Deshraj inflicted lathi blow on his right leg.
Other eye witness PW11 Dharmchand has stated that Rohitash inflicted tanchiya blow at temporal bone of Prabhudayl and Mahendra inflicted farshi blow on his head. He has also stated about the role of Deshraj, Jagmal Singh and Chandan etc. He is also the injured eye witness.
PW8 Suman Yadav and PW9 Sarla, the eye witnesses are also consistent on the point that Rohitash inflicted tanchiya blow to Prabhudayal on temporal bone. Mahendra has inflicted farshi blow on his head.
PW1 Dr. Amar Singh Rahore has conducted post mortem of deceased Prabhudayal and found two injuries on his person which are as under:
1.Lacertated wound 7x4 cm left temporal bone deep red clotted blood- fracture of left temporal bone seen.
2.Lacerated wound 6x1/2 cm scalp deep left fronto parietal skull red clotted blood.
Injury No.1 is found to be fatal and opinion of the medical board is that head injury is sufficient to cause death in ordinary course of nature. Thus,witnesses are consistent on the point that Rohitash and Mahendra inflicted injuries to deceased and injury which has been attributed to Rohitash was found to be fatal and Mahendra was also having deadly weapon. He has also inflicted blow to deceased on head. The contention of appellants is that fatal injury caused to the deceased are of blunt weapon whereas witnesses have stated that injuries have been inflicted by sharp weapon. It is true that all witnesses have attributed sharp weapon to both these appellants and there is discrepancies in the ocular evidence and medical evidence about the weapon attributed but witnesses are consistent on the point that injury of temporal bone and injury on head have been inflicted by these appellants, due to the exaggeration as regard to use of weapon would not render the evidence of the witnesses unreliable. As all witnesses referred above are injured witnesses and as such there presence on the spot could not be doubted.
PW1 Dr.Amar Singh Rathore has also examined injured Somdev,Dev Prakash, Dharmchand, Sarla, and Suman and their injury reports Ex.P/3 to P/6 respectively have been proved by the witness.
The Investigating Officer PW17 Bhagandas has stated that tanchiya has been recovered at the instance of Rohitash and at the instance of Mahendra, Lathi has been recovered which gives strength to the prosecution evidence.
Contention of the present appellants is that witnesses are related witness,members of the same family, hence their testimony should not be believed. It is true that witnesses are related witness as they belongs to same family,but on this count alone, the testimony of witnesses could not be discredited as in the scuffle they have also received injuries which is inbuilt guarantee about the presence of these witnesses and all these witnesses are consistent as regard participation of Rohitash and Mahendra and further medical evidence also corroborates the ocular evidence about the fact that specific injuries have been received by deceased as narrated by the witnesses.
PW3 Jansi and PW5 Babulal have also been examined as eye witnesses but they have not supported the prosecution story and both have been declared hostile.
Much emphasis has been given by the counsel for the appellants that Deshraj, Surendra and Chandan have been implicated falsely. Deshraj has not been named in FIR and for Surendra and Chandan prosecution witnesses have stated that they were not participated in the scuffle. They were only standing there and their fault was only that they have not tried to save the deceased. PW8 Suman admits in cross-examination that her previous statements Ex.D.7, it has been stated that Chandan,Chagan Lal, Surendra and Mohan were standing there and did not try to save them. She has attributed injury only to Deshraj who inflicted Lathi blow to Dev Prakash, but it does not find place in her previous statement Ex.D.7. Thus, she has improved her version from her previous statement. It has also been stated that Deshraj and Chandan caught hold of the deceased Prabhudayal this is also an improvement and has not been stated in her previous statement Ex.D.7.
PW9 Smt. Sarla has also improved her court statement from her previous statement Ex.D.8. It has specifically been stated that Chagan Lal, Surendra and Chandan were standing there and they did not try to save them.
PW10 Mahendra has stated that both the parties were fighting with each other, but he has not narrated the story as presented by the prosecution.
PW11 Dharmchand has also improved his version qua the appellants Surendra, Chandan and Deshraj. Specific injuries have been attributed to the appellants in court statements which have not been stated in his previous statement that Deshraj inflicted lathi blow to Devprakash, Chandan inflicted Farshi blow to Devprakash on his ear.
PW15 Somdev has lodged the written report Ex.P.18 and admittedly, Deshraj has not been named in the report and his presence has not been shown.
PW16 Dev Prakash has also improved his statement in the Court,in Ex.D.11 statement recorded u/s.161 Cr.P.C., it has been stated that Chhangan Lal, Chandan and Surendra were standing there. No over-act has been attributed to them and Deshraj caught hold of Prabhu Dayal does not find place in his previous statement Ex.D.11. Thus, as regard appellant Deshraj, Chandan and Surendra, the prosecution witnesses have improved their versions from their previous statements.
In the light of the above discussion, it can safely be concluded that the offence against appellants Surendra, Chandan and Deshraj has not been proved by the prosecution beyond reasonable doubt. The prosecution witnesses have improved their versions from their previous statements. Deshraj has not been named in the FIR. He has been implicated later on and for Surendra and Chandan, prosecution witnesses were consistent during investigation that they were only spectator of the incident and only fault of them was that they did not intervene to save the complainant party. Hence, they deserve to be acquitted.
As regards the role of Rohitash and Mahendra, the evidence of prosecution clearly reveals that occurrence has taken place at the spur of moment when complainant party tried to place pole which was near to the field of the appellants and appellants were afraid of the fact that after placing the transformer their way would be blocked.
PW12 Banwari Lal Gupta has also stated that the dispute between the parties was regarding placing the transformer on a particular place.
PW10 Mahendra has also stated that scuffle has been taken place between both the parties.
PW8 Suman and PW9 Sarala have also stated that when complainant was digging holes for placing electric pole, the occurrence has taken place.
PW15 Somdev has specifically admits in the cross-examination that accused appellants have stated that the transformer should be fixed on some distance so there should not be any hindrance in their way and occurrence has taken place when complainant party has tried to place the electric pole at specific place which was forbidden by the accused appellants. Jagmal Singh, Rohitash and Deshraj have also suffered injuries in the incident. According to medical opinion, the only one injury to the deceased was found to be fatal meaning, no repetition of blow has been caused to deceased and single blow has been caused by blunt side of the weapon, which ruled out the intention of the appellants to commit murder of the deceased. The incident has taken place at the spur of moment on the dispute as to particular place where the transformer should be placed. The primary object of the appellants was to restrain the complainant to place transformer at a particular place. Their intention was not to liquidate the deceased and looking to the above facts, the case of Mahendra and Rohitash does not travel beyond Section 304 Part I and hence their conviction is altered from Section 302/149 to section 304 Part-I read with section 34 IPC.
In the result, appeals of appellants, namely, Desharaj (appellant no.3 in Appeal No. 346/2004), Surendera Yadav and Chandan (appellants in Appeal No.248/2004) are allowed as the charge against them have not been held proved beyond reasonable doubt. Their conviction and sentence awarded by the trial court are set aside. They are on bail and need not surrender. Their bail bonds and sureties stand discharged.
Appeal of appellant Jagmal (appellant no.1 in Appeal No.346/2004), who has died during pendency of the appeal on 09.8.2007, is dismissed as having abated.
Appeals of appellants, namely, Mahendra (appellant no.2 in Appeal No.346/2004) and Rohitash (appellant in Appeal No.449/2004) are partly allowed. Conviction of accused-appellant Rohitash for offence under Section 302 IPC and conviction of accused-appellant Mahendra for offence under Sections 302/149 IPC is altered and they are instead convicted for offence under section 304-I read with Section 34 IPC. Conviction of accused appellant Rohitash and that of accused-appellant Mahendra for offence under sections 323/149, 324/149 and 323 is altered and instead they are convicted for offence under sections 323/34 and 324/34 IPC. Conviction of accused-appellants Rohitash and Mahendra for offence under section 447 is maintained. However, their conviction and sentence for offence under section 148 IPC is set aside. For offence under sections 323/34, 324/34 and 447, they are sentenced to the same term as directed by the trial court. They have alredy undergone ten years and six months rigorous imprisonment, therefore, for there conviction for offence of Section 304-I read with 34 IPC, they are sentenced to the period already undergone by them with fine as already directed. They are in jail and be set at liberty forthwith subject to deposit of fine, if not reuqired in any other case.
The judgment dated 17.2.2004 of Additional Sessions Judge NO.1, Alwar, in Sessions Case No. 54/2001 (60/2000), impugned in these appeals is accordingly modified. The appeals stand disposed of.
However, keeping in view of the provisions of Section 437-A of the Code of Criminal Procedure, appellants namely Rohitesh, Mahendra, Deshraj, Surender Yadav and Chandan are directed to forthwith furnish personal bond in the sum of Rs.20,000/- each and a surety bond in the like amount, before Deputy Registrar (Judl.) of this Court, which shall be effective for a period of six months undertaking that in the of filing of Special Leave Petition against this judgment or on grant of leave, accused-appellants on receipt of notice thereof, shall appear before the Supreme Court.
(Nisha Gupta),J. (Mohammad Rafiq),J om
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Om Prakash PA