Rajasthan High Court - Jaipur
Dawraka vs State on 30 January, 2017
Bench: Chief Justice, Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Criminal Appeal No. 467 / 1983
Dwarika son of Dhanni, by caste Jat, resident of Khareta, Police
Station Hinduan.
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Deepak Soni with
Mr. Mohit Balwada
For Respondent(s) : Mr. BN Sandhu, PP (AAG-cum-GA)
For complainant : Mr. Rajesh Chaudhary on behalf of
Mr. HS Sinsinwar
_____________________________________________________
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
CAV JUDGMENT
BY THE COURT (PER DR. BHATI, J.)
30/01/2017
1. The present appeal arises from the judgment and order dated 27/05/1983 passed by the Additional Sessions Judge, Gangapur City in Sessions Case No.4/`1983 convicting the appellant under Section 302/34 IPC to life imprisonment and under Section 447 IPC to three months simple imprisonment with fine and default stipulation.
2. Mohar Pal lodged a written first information report on 11/09/1982 at Police Station Hindon stating that on the same morning at about 7.00 AM his son Badan Singh had gone to plough the field namely; 'Chuha Ke Dade Wale". While Badan Singh had gone to the fields, Mohar Pal and his son Meva remained at home. For about last 15 years, there was an animosity regarding partition of the fields between Mohar Pal and his brother Dwarika. At about 9.00 AM when Mohar Pal S/o Mani Ram went to 'Chuhawale Khet' carrying breakfast, he saw that in the field i.e. one field away known as 'Kalawale Khet', his son Badan Singh was being attacked by Dwarika and Bhim Singh with 'pharsa' and 'lathi' respectively. Upon their shouting, others from nearby fields, namely; Amar Singh, Ramesh, Seth Jat came to the spot and saw Dwarika and Bhim Singh running away. The dead body of Badan Singh was carried by the complainant.
3. On the basis of the aforesaid report, FIR No.240/1982 was registered for offence under Section 302 IPC at Police Station, Hindon at 9.00 AM on 11/09/1982.
4. Since the age of the accused Bhim Singh was less than 16 years on the date of incident, therefore, the learned court proceeded to order that the proceedings may be initiated against him under the provisions of the Rajasthan Children Act, 1970 vide order dt. 21/02/1983.
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5. Postmortem (Exhibit-P.18) was conducted on 11/09/1982 at 5.00 PM by Dr. Narain Lal Bhardwaj (PW-12) who found following fourteen external injuries on the body of the deceased:-
"1. Transversely placed incised wound 1 ½" x 1/4" x 1/5" on the right infra orbital area.
2. Stab wound with clean cut margins 1/3" x 1/4" x 1/3" on the right side of the lower lip just below the angle of the mouth. It was through and through i.e. oral cavity was exposed.
3. Stab wound with clean cut margin 1/3" x 1/4" x 1/3"
on the right side of the lower lip just above injury No.2.
4. Oblique incised wound 1/2" x 1/4" x 1/4" on the right side of the upper lip.
5. Contusion 4" x 3" on the right temple and the parotid region and the adjoining part i.e. tragus and ear pinna of the right ear, with clotted blood in the right auditary meatus and echhymosis over the temple and the perotid area.
6. Contused wound 1/3" x 1/4" x 1/5" on the right ear pinna upper part.
7.Oblique contusion 4" x 1 ½" on the front of the left upper arm middle and the lower 1/3rd portion.
8. Contusion 3" x 3" on the dorsum of the right hand.
9. Contusion 3" x 2" on the dorsum of the right fore- arm upper 1/3rd with a lacerated wound 1/3" x 1/4" x 1/5".
10. Abrasion 1/3" x 1/4" on the back of the right elbow.
11. Lacerated wound 1/3" x 1/4" x 1/4" on the front of the left leg.
12. Transverse incised wound 1 ½" x 1/2" x 1" on the back of the left knee.
13. Lacerated wound 1/4" x 1/4" x 1/5" on the middle 1/3rd of the front of the left leg.
14. Lacerated wound 1/4" x 1/4" x 1/5" on the antero medial aspect of the left ankle."
6. Dr. Narain Lal Bhardwaj (PW-12) also found three internal injuries on the cranium which are as follows:-
(4 of 15) [CRLA-467/1983] " 1. There was fracture of the skull vault i.e. right temporal and frontal bone.
2. There was extra dural haematoma on the right side due to rupture of the right middle meningeal artery and huge collection of clotted blood. Dura matter was found torn off the bone.
3. There was contusion over the right temporal lobe of the brain."
7. It was stated by Dr. Narain Lal Bhardwaj (PW-12) that there was fracture on the right second and third metacarpal bones and the injuries, which have been mentioned in the cranium 1,2 and 3 were result of the external injury no.5. While internal injury no.4 was result of external injury no.8, the injuries no.1, 2, 3, 4 and 12 were found to have been caused by some sharp object while the other injuries might have been caused by some blunt object. Injury no.5 in the ordinary course of nature was sufficient to cause death. It was stated by Dr. Narain Lal Bhardwaj (PW-12) that injury no.5 can be caused by a 'lathi' whereas injuries no.1 to 4 and 12 can be caused by a 'pharsa' like Art. 1 present in the Court.
8. During cross-examination, Dr. Narain Lal Bhardwaj (PW-12) stated that except injury no.5, the remaining injuries, coupled together, were not sufficient to cause death. It was also stated by him that injuries no.2 and 3 are stab wounds, therefore, cannot be caused by a 'pharsa' Art.1 present in the Court at that time.
9. Four eye-witnesses of the case namely; Seth (PW-4), Ramesh (PW-5), Amar Singh (PW-6) and Gordhan (PW-7) turned (5 of 15) [CRLA-467/1983] hostile. Seth (PW-4) had his field, 5-6 fields away from the filed of Mohar Pal
10. Ramesh (PW-5) had his field next to Mohar Pal's 'Chuhewale Field' and in between both these fields, there was a 'nala'.
11. Amar Singh (PW-6) was with Ramesh and Seth at the time of incident and reached the place of incident after the incident was over between 9.00 AM to 10.00 AM.
12. Gordhan (PW-7) had his field one mile away from the filed of Mohar Pal. Gordhan (PW-7) ploughs the field of Kalla Ram in partnership.
13. Bhanwar Singh, ASI, Police Station, Hindon (PW-8) prepared 'Fard Japti' of 'pharsa' and 'lathi' on the identification of accused Dwarika in front of Radhey Shyam (PW-13). Bhanwar Singh also certified the 'Japti' report of 'lathi'.
14. Padam Singh (PW-9) identified the shirt of accused Dwarika which was blood stained.
15. Har Govind Singh (PW-10) had prepared the arrest memo and arrested the accused on 18/01/1982 at about 7.30 AM and registered the same under Section 27 of the Evidence Act and the same is on record as Exhibit-P.13.
16. Shriphal Singh (PW-11) was 'Patwari' who prepared the draft map of 'Khasra' No.43 as well as provided copies of 'Khasra Girdawari' and 'Jamabandi' by certifying the same and as per his evidence, Khasra No.43 was being ploughed by Badan Singh.
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17. Radhey Shyam (PW-13) was declared hostile as his evidence did not match with the investigation report of Bhanwar Singh and he denied that 'Pharsa' was recovered in his presence.
18. Fateh Singh (PW-14) certified Exhibit-P.19 which is report under Section 174 Cr.P.C..
19. Ramcharan (PW-15) certified 'Rojnamcha Report' (Exhibit- P.21) which reflects three sealed packets submitted for FSL.
20. Girraj Prasad (PW-17), who was Sub-Inspector at Police Station, Hindon, conducted maximum part of the investigation.
21. The parties to the incident in this case are closely related as the deceased (Badan Singh) was son of Mohar Pal (PW-1) and Maniram (PW-2) was also son of Mohar Pal. The accused Dwarika was brother of Mohar pal and accused Bhim Singh was son of Dwarika and thus nephew of Mohar Pal. The whole case emerges to be a family dispute between families of the real brothers and the dispute is arising out of the partition of the field in question. The version of Mohar Pal is that the field in dispute was not to be divided as it was not an ancestral property which was refuted by the accused Dwarika who stated that it was an ancestral property which had been partitioned. It was also an admitted fact that father of Mohar Pal and Dwarika was alive and living with Mohar Pal.
22. Learned counsel for the appellant submitted that the eye- witnesses, which were Seth (PW-4), Ramesh (PW-5), Amar Singh (PW-6) and Gordhan (PW-7) had become hostile and thus falsified (7 of 15) [CRLA-467/1983] the entire case of the prosecution. The counsel for the appellant stated that close family relationship between the accused family and complainant family and their long standing animosity became the reason of false implication. The counsel for the appellant also drew attention on the fact that the blood stains on the shirt were not of human blood. The counsel for the appellant also drew attention to the fact that Radhey Shyam (PW-13), stating to have certified recovery of 'Pharsa', turned hostile. Girraj Prasad (PW)17, the Investigating Officer also could not support the fact of blood stained clothes being sent for FSL. Har Govind Singh (PW-10) could not prove the seizure of clothes. It was also argued by counsel for the appellant that the appellant is 84 years old man and sending him to jail after such a long period would not serve any purpose. Counsel for the appellant also tried to make a point that alternatively, if the conviction is changed from 302/34 to 304 Part-II, then it could be possible to let go the appellant with the sentence undergone which was a custody period of 14 to 15 months. It was also pointed out that as per Exhibit-P.20, the 'Pharsa', which is said to have been used by the appellant, was not sent for FSL report.
23. Learned Public Prosecutor for the State submitted that Mohar Pal (PW-1) was the main witness and clearly sustained the prosecution story. There was no contradiction or doubt in the evidence of Mohar Pal (PW-1) and being a witness who was throughout consistent, the conviction could be sustained on his solitary evidence. Mohar Pal (PW-1) asserted the same facts which were stated in the report lodged by him. The intention of (8 of 15) [CRLA-467/1983] the accused to deprive the complainant's son of his lawful possession the field in question was also stated in his evidence. In the alternative, it was also submitted by counsel for the appellant that if the Court comes to the conclusion that Dwarika had made 'Pharsa' blow in an omnibus manner causing only injuries which did not result in to death, as has been stated by the doctor in the postmortem report that injury no.5 was sufficient to cause the death and rest of the injuries could not together cause death which could indicate that 'Pharsa' blow by Dwarika was not sufficient to cause death and thus no finding under Section 302 IPC was made out and passing the conviction may be under Section 304 Part II IPC. The occurrence had taken place long years ago and the appellants have already suffered the agony of court trial and long pendency of the appeal and having gone undergone a custody upto 14 to 15 months and today, the accused Dwarika is about 84 years old, the period of custody undergone may be considered as sufficient punishment.
24. The existence or non-existence of any previous enmity may not always be relevant for common object. There can never be direct evidence of common object which will have to be culled out from the entirety of the surrounding facts and circumstances. It is not necessary that there must be evidence of a premeditation by earlier meeting of minds before common object can be inferred. Common object can also develop on the spot. It will therefore have to be culled out from the facts of each case including manner of occurrence, the nature of assault, the kind of weapon used and whether a person participated in the assault as a member of the (9 of 15) [CRLA-467/1983] lawful assembly or was merely present with a passive role without actually particitating in the assault.
25. The evidence of the eye-witness would not loose its credit merely because the evidence was based upon the witness of a relative and thus, an interested party. The Court has to satisfy itself on the legal parameters to test the statement of the interested witness as trustworthy, cogent and corroborated by other evidence. In this case, it is an established fact that there was an animosity between the closely related party, for the ancestral property in respect of the partition and a long drawn dispute was carrying on causing serious differences between both the families. The circumstances clearly indicate that ploughing of fields was the principal bone of contention between the parties and thus an intentional attack was made with a common intention of causing death of Badan Singh. As per this Court the evidence of eye-witness attains more reliability on account of the fact that the close relations would not implicate each other until and unless a real incident would have occurred. The psychological impact to give correct evidence in the first degree of blood relationship would render such evidence more trustworthy for the purpose of establishing the prosecution case. The accused Dwarika and Bhim Singh, being armed with 'Phrasi' and 'lathi', giving blows in furtherance of a common intention, therefore, both of them are liable for that act in the same manner as it was done by them alone as stipulated in Section 34 of the IPC. Section 304 IPC will have no bearing as the facts of the case clearly confirm to the parameters of Sec. 302 and 300 IPC.
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26. The postmortem report and the evidence of Dr. Narain Lal Bhardwaj, clearly point out that there were 14 external injuries and three internal injuries. Thus, there was a continuous and repeated attack upon the deceased in which there was a cumulative danger to the life of the deceased. Mohar Pal and Mani Ram, when reached the site, then they both saw the accused Dwarika and Bhim Singh causing injuries by 'Pharsa' and 'Lathi' on the body of Badan Singh and this common intention of both the accused was being executed upon the deceased. Such common intention of causing repeated blows with their respective weapons on a well intentioned attack clearly brought Dwarika's act under Section 34 IPC even if it was to be believed that the injuries caused by 'Pharsa' alone were not sufficient to cause death. To attract Section 34 IPC, it was not necessary to bifurcate the act done by more than one person in furtherance of a common intention as in such case, both the persons shall be liable for the act in the same manner as if it was done by him alone. It has been proved by the prosecution that both the accused had come to the disputed site and both were armed with 'Pharsa' and 'Lathi' and aimed and concentrated a joint attack upon Badan Singh. The repeated blows causing multiple injuries by both the accused clearly shows a common intention. The intention arising out of the circumstances that the real brothers Dwarika and Mohar Pal and their families were having a long standing animosity between themselves to claim a part of the ancestral land. Thus, it is a clear case where on each injury, Section 34 IPC i.e. the common intention was reflected and both the accused were commonly (11 of 15) [CRLA-467/1983] responsible for the same. The statement of Patwari Shriphal Singh (PW-11) is of a complete assistance to the prosecution as it completely supports the conviction under Section 447 IPC. As regards the contention raised by counsel for the appellant for taking sympathetic view in the matter taking into consideration old age of the appellant, in my view, the sympathy or age cannot be a justification to impose a sentence not commensurating with the gravity of the offence proved.
27. The Apex Court, in the case of Raj Bala Vs. State of Haryana and others, reported in (2016) 1 SCC 463 has observed in Para nos. 1, 2, 3, 4 & 16 of its judgment as follows:-
"1. In Gopal Singh v. State of Uttrakahand[1], while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed (SCC pp. 551-52, para 18):-
"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are (12 of 15) [CRLA-467/1983] certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self- adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment."
(emphasis supplied)
2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that: (SCC pp.361- 62, paras 7-8) "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that:
"State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society."
Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and (13 of 15) [CRLA-467/1983] tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N."
(emphasis supplied) And again (SCC p.363, para 13):-
"13.....The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"."
3. It needs no special emphasis to state that prior to the said decision, there are series of judgments of this Court emphasizing on appropriate sentencing. Despite authorities existing and governing the field, it has come to the notice of this Court that sometimes the court of first instance as well as the appellate court which includes the High Court, either on individual notion or misplaced sympathy or personal perception seems to have been carried away by passion of mercy, being totally oblivious of lawful obligation to the collective as mandated by law and forgetting the of quoted saying of Justice Benjamin N. Cardozo. "Justice, though due to the accused, is due to the accuser too" and follow an extremely liberal sentencing policy which has neither (14 of 15) [CRLA-467/1983] legal permissibility nor social acceptability.
4. We have commenced the judgment with the aforesaid pronouncements, and our anguished observations, for the present case, in essentiality, depicts an exercise of judicial discretion to be completely moving away from the objective parameters of law which clearly postulate that the prime objective of criminal law is the imposition of adequate, just and proportionate punishment which is commensurate with the gravity, nature of the crime and manner in which the offence is committed keeping in mind the social interest and the conscience of the society, as has been laid down in State of M.P. v. Bablu Lal[4], State of M.P. v. Surendra Singh and State of Punjab v. Bawa Singh."
16. A Court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the Court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio- cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective."
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28. In the entirety of the facts and circumstances, we find no reason to interfere with the conviction of the appellants.
29. Consequently, the criminal appeal is dismissed. The bail bond of the appellant is cancelled and he is directed to be taken into custody and/or surrender forthwith for serving out the remaining period of sentence.
(DR. PUSHPENDRA SINGH BHATI), J. (NAVIN SINHA), C.J. Raghu