Rajasthan High Court - Jaipur
Bhanwar Das And Ors vs State on 31 October, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT Bhanwar Das & Ors. Vs. State of Rajsthan D. B. Cr. APPEAL NO. 6/2007 under Section 374 (2) Cr.P.C. against the judgment and order dated 22.12.2006 passed by Additional Sessions Judge, Kekri Distt. Ajmer in Sessions Case No. 16/2003. Date of Judgment: 31st October, 2013. PRESENT HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MRS. JUSTICE NISHA GUPTA Mr Biri Singh, Sr. Advocate with Mr Rajesh Choudhary and Ms Teena Sharma, for appellants. Mr Javed Choudhary, Public Prosecutor. BY THE COURT (PER HON'BLE NISHA GUPTA, J):
This DB Cr. Appeal under Section 374 (2) Cr.P.C. has been filed against the judgment and order dated 22.12.2006 passed by Additional Sessions Judge, Kekri Distt. Ajmer in Sessions Case No. 16/2003 whereby the present appellants have been convicted and sentenced as under:-
under Section 148 IPC: to undergo one year simple imprisonment.
Under Section 302/149 IPC:- to undergo life imprisonment with fine of Rs. 5,000/- each and in default thereof to further undergo additional one year simple imprisonment.
Under Section 307/149 IPC:- to undergo 7 years simple imprisonment each and to pay a fine of Rs. 5000/- and in default of payment of fine to further undergo one year simple imprisonment.
All the sentences were ordered to run concurrently.
The short facts of the case are that on 27.9.2002, Naurat Mal (PW/25) has lodged a written report Ex.P/21 at Police Station, Sarwar, Distt. Ajmer stating therein that at about 8.00 PM, he along with Rameshwar Vaishnav, Jignesh, Jeetu and Badri Vaishnav who is resident of Sironj were offering prayers in the temple, at that time, Bhanwar Das and 21 other persons named in the report came there in a tractor having sticks, axe, kusiya and sword in their hands attacked them. Badri suffered injuries on his head and various other injuries. Badri died on the spot. Rameshwar Vaishnav, Jignesh and Jeetu intervened, they also suffered injuries in the scuffle and on hearing cries, Bheru, Rajesh, Shivraj and Mahaveer came there to intervene and on seeing them accused persons ran away in the tractor. Further, it has been stated that Nitendra and Geeta has also suffered injuries in the incident. On this report, FIR No. 195/2002 has been registered for the offence under Sections 147, 148, 307, 302, 323 and 341 IPC against 22 persons. After investigation, charge-sheet has been filed against 14 persons. Charges have been framed against the appellants for the offences under sections 147, 148, 302/149, 307/149, 347 and 324 IPC which was denied by the accused persons and they claimed for trial. To prove the case against the present appellants, prosecution has examined PW/1 Ramesh Chand, PW/2 Mahaveer, PW/3 Shivraj, PW/4 Rameshwar, PW/5 Mahaveer S/o Sugna, PW/6 Bheru Jat, PW/7 Raghuveer Singh, PW/8 Sheoji, PW/9 Ladu Singh, PW/10 Ganesh, PW/11 Jitendra, PW/12 Ramprasad, PW/13 Rameshwar, PW/14 Jignesh, PW/15 Nitendra, PW/16 Mst. Geeta Devi, PW/17 Datar Singh, PW/18 Ganpat Lal, PW/19 Sanjay Kumar, PW/20 Naval Kishore Sharma, PW/21 Sheoji, PW/22 Lalaram, PW/23 Ratan Singh, PW/24 Dr. R.K. Mathur, PW/25 Naurat Mal Vaishnav, PW/26 Gopal Singh, PW/27 Datar Singh S/o Ganga Singh, PW/28 Bhagwan Singh, PW/29 Amra Ram, PW/30 Bhanwar Lal, PW/31 Dr. R.C. Yadav, PW/32 Pradeep Singh Yadav and PW/33 Dr. Harvansh Singh Dua and also relied upon documents Ex. P/1 to P/99. The accused appellants have been examined under Section 313 Cr.P.C. No oral defence evidence has been produced, the defence has relied on Ex.D/1 to D/9. After conclusion of trial, the present appellants have been convicted and sentenced as indicated above.Hence this appeal has been preferred by the appellants.
The contention of the present appellants is that the finding of the court below are against facts and record of the case and liable to be set aside. Initially, FIR was lodged against 22 persons whereas charge-sheet has been filed only against 14 persons. There is no injury of sharp weapon to any person whereas witnesses have specifically stated that the appellants were having sharp edged weapon and they inflicted injuries by sharp weapon. Thus the ocular evidence is not in conformity with the medical evidence. Badri was not the resident of village Borada. He came first time in the village and admittedly appelalnts were not having enmity with Badri. As per post mortem report (Ex.P/88) the only one injury to deceased found to be fatal, who caused the injury has not been conclusively proved by the prosecution. The cause of death is cumulative effect of two injuries whereas allegation against Lala Ram is of inflicting single injury, who caused second injury has not been proved thus, the case does not travel beyond section 325 IPC. The injury caused to the deceased is by blunt weapon and only linear fracture, the second injury could be caused by fall. All persons assembled there to offer prayers formation of unlawful assembly with common object cannot be attributed. Genesis of the case has been suppressed. Statement of witnesses are not consistent. Witnesses have admitted that at that time, lights were cut. When it was dark, it was not possible to identify accused appellants.Hence conviction of the appellants is bad in law and in alternative, it has been stated that there is no evidence that the appellants were party to the unlawful assembly.They cannot be convicted vicariously and Lalaram has inflicted only one injury whereas death has been caused due to cumulative effect of two injuries. Admittedly, occurrence has taken place in sudden fight and considering overall facts and situation, the case of the appellants does not travel beyond the scope of section 304 Part-II IPC.The other argument of the learned counsel for the appellants is that conviction under Section 307 IPC is bad in law as no injured has suffered any injuries which can be termed as dangerous to life.
Per contra, the contention of the learned Public Prosecutor is that all the witnesses are consistent on the fact that appellants came there armed in a tractor. They took Badri from old temple to new temple. Witnesses were not sure on the point that whether sharp side of weapon has been used and hence medical evidence could not be said to be contrary to the ocular evidence. Lalaram has inflicted fatal blow and other accused persons shared common object with him, they have rightly been convicted for Section 302/149 IPC.
Heard learned counsel for the appellants and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case.
PW-25 Nourat Mal Vaishnv has submitted written report and in court he has also supported his version given in FIR that on 27.9.2002 at about 8 PM when they were offering prayers in temple, Bhanwardas and Radhey Shyam etc.and others named in statement came there in Tractor with weapons in their hands and started beating. They had taken Badri from old temple to new temple and there Lalaram inflicted Farshi blow on his head. Mahaveer inflicted pipe blow on his head and Gopal also inflicted Sariya blow on his head and thereafter Bhanwardas inflicted lathi blow to Rameshwar. Lalaram also inflicted Farsi blow on the head of Rameshwar. Bhanwardas inflicted lathi blow on the eyes of Rameshwar. Goverdhan has also inflicted blow with stick to Rameshwar. Mahaveer inflicted pipe blow on the head of Geeta Devi. Radheyshyam and Bhanwardas have also inflicted lathi blow on the hands of his wife Geeta Devi. Gopal has inflicted Sariya blow on the head of Jignesh and Radhey Shyam inflicted Lathi blow on his hand. Kana and Ramniwas have also inflicted lathi blow to Jignesh and Radheyshyam inflicted lathi blow on the hands of Nitendra and Polu and Kana also inflicted injuries to him. Ramniwas has also inflicted blow to him.
PW-13 Rameshwar is the eye-witness and also injured in the incident. It has been stated in FIR also that he suffered injuries on his eyes and also suffered injuries from Farsi and sticks. He has stated that all the accused persons came there having weapons in their hands. They started beating Badri and on hearing his cries, he went to intervene, at that time, Lala Ram inflicted Kulhari blow on his head and Radheshyam inflicted lathi blow and his tooth has been broken and he has also stated that Radheyshyam has also inflicted Sariya blow on him. He has also supported the fact that Jignesh,Jitendra and Geeta Devi have also suffered injuries in the incident but he could not narrate the details about the fact that which appellant has inflicted which specific injury to Geeta, Jignesh, Nourat or Jitendra etc. Other eye witness and also the injured witness PW-11 Jitendra has stated that all accused persons (named) came there, Lalaram inflicted Farshi blow to Badri and thereafter they took him towards new temple and when Nourat, Rameshwar,Nitendra, Jignesh Geeta and he tried to intervene, Lalaram inflicted Farsi blow on the head of Rameshwar. Radheshyam inflicted lathi blow on his mouth and Bhanwardas also inflicted injury of stick on his head. Mahaveer inflicted pipe blow to Geeta Devi and Gopal inflicted Sariya blow on the head of Jignesh. He further stated that Lalaram, Goverdhan also inflicted injuries on his back and right hand with lathi and Badri died on the spot.
PW-14 Jignesh has also corroborated the fact that all appellants have attacked on Badri and when they tried to intervene, they have also suffered injuries. He has also narrated details about the fact that which specific injury has been caused by which specific appellant and his contention is that Gopal has caused Sariya blow on his head and Rameshwar, Geeta, Nitendra and Jitendra have also suffered injuries on the hands of specific appellant and with the specific weapon.
PW-15 Nitendra has also suffered injuries and he has also corroborated the prosecution story. His contention is that from old temple accused appellants took Badri to new temple and he suffered fatal injuries which was caused by Radheshyam, Kanaram and Ramniwas.
PW-16 Geeta Devi is the another eye-witness who has also suffered injuries in the incident and she has also testified the evidence as narrated by the other witnesses and her contention is that Mahaveer has inflicted pipe blow on her head. she has also stated that Radheyshyam, Bhanwardas and Goverdhan have also inflicted lathi blow to her.
Thus, informant PW/25 Nourat Mal Vaishnav and injured eye-witness PW-11 Jitendra, PW-13 Rameshwarlal, PW-14 Jignesh, PW-15 Nitendra and PW-16 Geeta Devi, all have supported the prosecution story that appellants came there and attacked them and inflicted injuries to Badri and to the injured persons referred above.
The contention of the appellants is that ocular evidence could not be believed as it is contrary to the medical evidence. PW/24 Dr. R.K. Mathur has conducted post mortem of deceased Badri and found two lacerated wounds on his head vide post mortem report Ex.P/88, the cause of death is ante mortem head injury caused by blunt weapon and the injuries are sufficient to cause death in ordinary course of nature and in cross-examination, PW/24 Dr. R.K Mathur has specifically stated that two injuries referred in post mortem report caused by two different blows and due to cumulative effect of injuries, deceased was died. The contention of the appellants is that sharp weapon has been attributed to Lalaram where Badri has not suffered any sharp weapon injury.
It is true that deceased Badri has not suffered injury from sharp weapon but witnesses are consistent on the point that Lalaram has inflicted injury on the head of the deceased and PW/15 Nitendra has stated that he could not say that whether injury was caused by blunt side or by sharp side of the axe and the contention of the learned Public Prosecutor is that possibility cannot denied that from blunt side of the weapon the injuries have been caused. There is no inconsistency in the prosecution evidence about the fact that Lalaram has inflicted injury on the head of deceased. It is true that there is some exaggeration regarding having sharp edged weapon but on this exaggeration, the evidence of eye witnesses who are also the injured witnesses cannot be brushed aside. Witnesses are also consistent that accused persons came there, they started abusing and thereafter inflicted injuries to Badri as well as to other injured persons. The contention of counsel for the appellants is that the occurrence has taken place in spur of moment and there was no premeditation and hence appellants could not be found guilty vicariously but the above contention is not acceptable as the witnesses have consistently stated that the appellants came there having weapons in their hands,they attacked and thereafter appellants took Badri from old temple to new temple which clearly suggests that on the spot the appellants formed unlawful assembly and they were also sharing common object.
The other contention of the appellants is that at the time of incident admittedly, the lights have been closed and due to darkness it was not possible to identify the appellants. PW-3 Shivraj is very specific on this point that the lights of one temple were cut but on another temple lights were on, and there was sufficient lights. Site plan Ex.P/4 also shows that both the temples are nereby and distance between the two is of only 64 feet, hence contention of the appellants that due to dark it was not possible for the witnesses to identity the appellants is not acceptable.
The other contention of the appellants is that deceased Badri was not resident of village Borada and appellants were not having any enmity with him and hence no intention of causing his death could be attributed to the appellants. It is true that deceased Badri was not resident of village Borada and PW/6 Bheru Jat and PW/3 Shivraj have also stated that they saw Badri only on that day but the witnesses are also consistent on this point that accused appellants attacked Badri, Lalaram inflicted blow on his head and he died on the spot. PW/13 Rameshwar has admitted the fact that due to mistaken identity that he is Jignesh,Badri has been beaten and PW/16 Geeta Devi has also stated that Badri was not known to the appellants and he was beaten on the mistaken identity of Jignesh but the fact remains the same that appellants attacked on Badri and inflicted fatal injury to him.
The other contention of the appellants is that genesis of the occurrence has been suppressed. There was no reason for the appellants to commit such a heinous crime. PW/10 Ganesh who is an independent witness has stated categorically that both the parties were inclined to offer prayers in the temple and there was dispute between the parties as regard to control over the temple. PW/16 Geeta Devi has stated that litigation was also going on between the parties as appellants have constructed a new temple in the village hence genesis has not been suppressed by the prosecution but the specific plea has been taken by the prosecution that due to dispute about control over the temple, parties were inimical prior to the incident. Hence in the light of the above, it can safely be concluded that on the fateful day appellants came there when complainant party was offering prayer in old temple, they inflicted blow to Badri. Specifically, Lalaram inflicted blow on his head and when other persons came there to intervere, they have also been beaten and Naurat PW/25 Geeta Devi PW/16 and Rameshwar PW/13 Jignesh PW/14 and Nitendra PW/15 have suffered injuries in the scuffle. PW/33 Dr. H.S. Dua has examined Rameshwar, Geeta Devi and Jignesh. They all have suffered injuries by blunt weapon. PW/31 Dr. R.C. Yadav has examined Nitendra who has also suffered simple injuries by blunt weapon. The evidence of injured eye-witnesses suffers no infirmity, their presence on the spot is established as they have also suffered the injuries in the incident and the prosecution has proved the case beyond reasonable doubt against the appellants.
The much emphasis has been placed by counsel for the appellants that all the appellants are not involved in the offence and it is a case of over-implication. Deceased Badri has suffered only two injuries and other injured persons have also suffered only simple injuries and as parties were having inimical relations, possibility of over implications cannot be ruled out. Contention of the learned Public Prosecutor is that appellants were knowing that offence is likely to be committed in prosecution of common object and all, who at the time of committing offence was member of unlawful assembly would be guilty of the offence committed and appellants have been rightly convicted vicariously.
There is no dispute about the legal position that if unlawful assembly has been formed and in furtherance of its common object offence has been committed, all members of unlawful assembly could be convicted on the basis of overt act of few of them but the court should be vigilant to consider the fact that innocent spectator may not be kept involved and whether the presence of any person of unlawful assembly is established or not when proofs of allegation were general, the court should categorically scrutinize the evidence to arrive at a definite finding that whether all or any one of them are present on the spot has been proved beyond reasonable doubt. In the light of above, when we scan the evidence of present case as regard to injuries to eye witnesses, PW/11 Jitendra, PW/13 Rameshwar, PW/14 Jignesh, PW/15 Nitendra and PW/16 Mst, Geeta Devi are consistent on the point that Lalaram has inflicted injury on the head of Rameshwar and it has also been proved that he has also inflicted fatal injury to deceased Badri. Hence, there is no doubt about the fact that Lalaram was present and sharing common object of unlawful assembly. Rameshwar Pw/13 has also suffered injuries on his head which is evident from Ex.P/94, injury report of Rameshwar and Rameshwar has also stated that Lalaram has inflicted injury on his head. It is true that there is discrepancy about the fact that witnesses have stated that Farshi blow has been given whereas the corresponding injury is of blunt weapon but as discussed earlier the evidence is consistent on about the presence of Lalaram and his specific role has also been established.
PW/11 Jitendra has stated that Radheyshyam inflicted injury on the mouth of Rameshwar. PW/13 Rameshwar has also stated so. PW/14 Jignesh has also stated that Radheyshyam has inflicted injury to Rameshwar. PW/15 Nitendra has also stated that Radheyshyam inflicted injury to Rameshwar. PW/25 Naurat Mal has also testified same evidence, which is further corroborated by medical evidence, injury report of Rameshwar Ex. P/94. Presence of Radheyshyam and his specific role has been proved by the prosecution beyond reasonable doubt.
As regard appellant Bhanwardas, PW/11 Jitendra has stated that Bhanwardas has inflicted injury to him and PW-14 Jignesh and PW-15 Nitendra have also testified the fact that Bhanwardas has inflicted injuries. Rameshwar PW/13, Geeta Devi PW/16 and Nauratmal PW/25 have also corroborated the fact that Bhanwardas inflicted injury to Rameshwar.Radheyshyam and Bhanwardas have been attributed injuries caused on eyes and mouth to Rameshwar and Ex.P/94, the injury report of Rameshwar is also corroborative of fact that Rameshwar has received injury on tooth and left eye. Thus, medical report also corroborates the ocular evidence.
As regard Mahaveer, all the injured eye witnesses consistently stated that he inflicted Lathi blow to Geeta Devi on her head and Geeta Devi has also testified the fact. Injury report of Smt. Geeta Devi Ex. P/98 also contains that she suffered injury on her head.
As to the role of Gopal, evidence is consistent that he caused injury to Jignesh on his head. PW/14 Jignesh has also stated so and injury report of Jignesh, Ex.P/96 also speaks that he received injuries on his fore-head. Thus, it can safely be concluded that Lala Ram, Radheyshyam,Bhanwardas, Mahaveer and Gopal are the active participants and in furtherance of common object they have inflicted injuries to Badri as well as to other injured persons.
The contention of the counsel for appellants is that for appellant nos. 3(Nathulal), 4(Ganesh), 5(Hansraj), 6(Shivraj),7(Balu),9(Kana), 10(Ramniwas),11(Polu) and 14(Gordhan), no specific role has been attributed to them. Earlier fatal injury has been attributed to Nathu Lal whereas in court statement injured witnesses have stated that injury has been caused by Lala Ram. Even PW-13-Rameshwar has not identified Shivraj and Ramniwas in court and thus all these appellants have been falsely implicated for the offence. PW-11 Jitendra has stated that Goverdhan has inflicted lathi blow to Rameshwar on his back but Rameshwar has not suffered any injury on his back. At the same time he has stated that Kana inflicted injury on his head but Jignesh has not suffered injury on his head. His contention is that Gopal Goverdhan have inflicted injuries to Nitendra on his back but Nitendra has not suffered any injury on his back.
PW/13 Rameshwar has not stated about injury of any other person. Jignesh PW/14 has not attributed any injury to the above referred appellants. PW-15 Nitendra has stated that Kana inflicted injury on his left shoulder and Ramniwas inflicted injury on his left leg and he has stated that he suffered four injuries but PW-31 Dr.RC Yadav has stated that he has suffered only two injuries. PW-16 Geeta Devi and PW/25 Nauratmal have not attributed any injury to the above referred appellants. PW/3 Shivraj, who is also eye witness to the incident, has not stated about the presence of these appellants. Thus the presence of above appellants is doubtful and it is unsafe to convict above appellants on the basis of overtact of others and reliance has been placed on Pandurang Chandrakant Mhatre and others vs State of Maharashtra (2009) 10 SCC 773, the Supreme Court held that where a large number of persons are alleged to have participated in the crime and are sought to be convicted under section 149 IPC, the court needs to consider all the facts situation and convict only those accused, whose presence was clearly established and overt-acts were proved.Thus, the evidence as regards the participation and presence of above appellants available on record is vague and it is not safe to convict the above appellants on the basis of vague and inconsistent evidence. The presence of above appellants is not proved by the prosecution beyond reasonable doubt. No specific overact or specific injury has been attributed to them, apart from it, PW/13 Rameshwar has not identified Ramniwas and wrongly identified Shivraj. In view of the above, these appellants deserve to be acquitted for the charged offences.
The appellants have also been convicted for the offence u/s 307/149 IPC. Admittedly, all the injured have suffered only simple injuries with blunt weapon. None of the injured have suffered injury which has been opined to be dangerous to life or even grievous injury. As considered earlier, the occurrence has taken place on the spur of moment over the issue of control over the temples and persons who tried to intervene have sustained injuries. The intention to attempted murder of injured person could not be attributed to the appellants. The conviction under Sec. 307/149 IPC is not sustainable and appellants are acquitted for the offence u/s 307/149 IPC.
The other contention of the appellants that the single injury caused to the deceased has been attributed to appellants and who has caused second injury has not been established by the prosecution. The intention of murder is missing as the sharp side of the weapon has not been used. The deceased has suffered only a linear fracture and opinion of the doctor is that the second injury could be caused by fall, the deceased has died due to cumulative effect of two injuries. There was dispute between the parties on the issue of control over the temples. Other injured persons have only suffered simple injuries. None of the appellants have repeated the blow and the case does not travel beyond the scope of section 304 Part-II and reliance has been placed on Hardev Bhanji Joshi vs State of Gujrat, AIR 1993 SC 297 wherein it has been held:
Even, according to P.W. 2, A-2 dealt only one blow. The nature of the injury shows that the sharp edge of the axe was not used. The whole thing happened in a sudden manner. Under these circumstances Clause I of Section 300 I.P.C. is not attracted. If A-2 had the intention to cause death, one would expect him to use the sharp edge of the axe. The very fact that he used the blunt side of the axe shows that he had no intention to cause the death. Further it is not a pre-meditated act. Now coming to clause III of Section 300 I.P.C., admittedly he caused only one injury with the blunt side of the axe which unfortunately resulted in fracture of skull bone. Further this happended during the quarrel. Under these circumstances, it is difficult to hold that he intended to cause that particular injury which the Doctor found to be sufficient in the ordinary course of nature to cause death. Under similar circumstances the courts have held that the offence punishable would be one of culpable homicide as knowledge that he was likely to cause death by such an act can be attributed to the accused. Accordingly we set aside the conviction of the appellant under Section 302 I.P.C. and the sentence of imprisonment for life thereunder. Instead we convict him under Section 304 Part II and sentence him to five years R.I. He shall surrender and serve out the sentence. The appeal is partly allowed.
In the light of above, the occurrence has happened suddenly without premeditation when prayers were going on in the temple. The blunt side of the axe has been used which shows the intention to cause death was missing. Only one fatal injury has been caused to deceased. The primary object of the appellants was to have control over the temple and under the circumstances the offence committed is culpable homicide as knowledge that it was likely to cause death by such an act can be attributed. Hence conviction of the appellants u/s 302/149 IPC is altered under section 304 Part II read with section 149 IPC.
Consequently, the appeal is partly allowed. The conviction of appellants- Lalaram, Bhanwardas, Gopal, Radhey Shyam and Mahavir under Section 302/149 IPC is altered under Section 304 Part-II read with section 149 IPC. Considering the fact that accused -appellant Lalaram is in jail for about 11 years, we sentence him to the period already undergone by him, he be released forthwith if not required in any other case. The other accused appellants-Bhanwardas, Gopal, Radhey Shyam and Mahavir are sentenced to seven years rigorous imprisonment they are on bail, they shall surrender themselves before the trial court to serve out sentence.
Appellants Nathulal, Ganesh, Hansraj, Shivraj, Balu,Kana, Ramniwas,Polu and Gordhan are acquitted of the charges levelled against them.
Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused appellant Lalaram, Nathulal,Ganesh,Hansraj,Shivraj,Balu,Kana,RamNiwas, Polu and Gordhan are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/-,each and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said 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