Rajasthan High Court - Jaipur
Laxmi Narayan And Anr. vs State Of Rajasthan on 3 December, 2004
Equivalent citations: RLW2005(2)RAJ1217, 2005(1)WLC643
JUDGMENT Khem Chand Sharma, J.
1. The learned Additional Sessions Judge, Dausa by his judgment dated 2.9.2002 impugned in this appeal has convicted and sentenced appellants Laxmi Narayan and Jansi as under:-
Under Section 307/341 IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/- each. In default of payment of fine to further undergo three months' Simple Imprisonment.
Under Section 326/34 IPC to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/- each. In default of payment of fine to further undergo two months Simple Imprisonment.
Under Section 324/34 IPC to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2007- each. In default of payment of fine to further undergo one month's Simple Imprisonment.
Under Section 323/34 IPC to undergo rigorous imprisonment for six months.
2. The substantive sentences have been Ordered to run concurrently.
3. Against this judgment of conviction and Order of sentence both the appellants have preferred the instant appeal.
4. Briefly stated the facts giving rise to this appeal are that on the basis of written report Ex.P. 1 submitted by PW2 Dhanna Lal, an FIR No. 179/1993, Ex.P.2 was registered at Police Station Nagal Rajawatan for offence under Sections 147, 341, 323 and 379 against 17 accused persons named therein. In the written report, complainant Dhanna Lal alleged that on 12.8.1993 at about 1.00 P.M. he and his brothers Kalyan Sahai, Bhagwan Sahai, Seeta Ram, his sister-in-law (Bhabhi) Kali and father Sunder Lal were returning to the house after doing agricultural work in the field of groundnut. While on way they found Laxmi Narayan, Janshi, Kalyan Sahai, Chittar Mal son of Panchu Ram Meena, Lalu Ram and Badri Narayan sons of Janshi, Shambhu Dayal, and Kailash Chand sons of Nanag Ram, Mool Chand S/o Rughnath, Nathi W/o Nanga, Ram Bharosi W/o Ramji Lal, Somoti W/o Prabhu Narayan, Meda W/o Kalyan, Ladi W/o Jagdish, Kali W/o Lalu Ram, Siyali W/o Chittarmal and Choli wife of Mool Chand, all Meena by caste, residents of Dhani Bandola coming in four tractors having lathis and axe in their hands. According to the complainant, all the above named persons were coming with intent to plough their field known as 'Kalal-Bala'. He further alleged that when they tried to prevent them from doing so, they stopped tractor, opened attack and assaulted him, his brother Kalyan Sahai, Bhagwan Sahai, Sita Ram, sister-in-law Kali and father Sundar Lal with their respective weapons. According to the complainant, accused Lala inflicted one lathi blow on his back and having afraid of, he went ahead. Kalyan Sahai took out Rs. 6000A from the pocket of Laxmi Narayan. It was then alleged by the complainant that whole of his family members sustained injuries in the incident. On hearing their cries, Ramji Lal Pujari and Kishan Lal Meena came there and with great difficulty they managed to save them. It was mentioned that had Ramji Lal and Kishan Lal not intervened, the accused would have caused more sever injuries.
5. During investigation, site plan of the place of incident was drawn, injured persons Bhagwan Sahai, Smt. Kali, Sunder Lal, Sita Ram etc. were examined for their injuries, X-rays of the injuries of injured Bhagwan Sahai and Kalyan Sahai were got done in SMS Hospital, Jaipur, the accused persons were arrested, on the basis of the information furnished by the accused persons, weapons of the offence were recovered, the documents regarding ownership and possession of the land in dispute were collected, statements of the witnesses were recorded under Section 161 Cr.P.C. and after completion of investigation, a charge sheet was submitted before the AMJM, Dausa, who in turn committed the case to the Court of Sessions for trial.
6. On the basis of material and evidence collected during investigation, the learned Trial Court framed charge against as many as 8 accused persons including the appellants for offence under Sections 147, 148, 323, 341, 447, 324, 324/149, 326, 326/149, 325, 323/149, 307 and 307/149 IPC, who denied the charges and claimed trial.
7. The prosecution in Order to prove its case examined as many as 12 witnesses and got exhibited numerous documents. In their explanation under Section 313 Cr.P.C. the appellants and co- accused pleaded that while they were working in their field, Kalyan, Sita Ram, Bhagwan Sahai, Dhanna, Soni, Kali and Teeja entered their field forcibly and assaulted them and as a consequence thereof, six persons from their side sustained injuries for which they also lodged FIR. In defence, three witnesses namely; DW.1 Ram Singh, DW.2 Dr. Kailash Narayan Gupta and DW.3 Badri Narayan were examined and 17 documents were produced on record.
8. At the conclusion of trial and hearing arguments of both sides, the learned Trial Court did not find the charges established against 6 co-accused persons and accordingly acquitted them of the charges. However, the learned Trial Court found the charges under Sections 307, 326, 324 and 323 read with Section 34 IPC established against the appellants and accordingly, convicted and sentenced them in the manner stated here-in-above. Hence the present appeal against conviction.
9. Before adverting to the merits of the case, I am at pains to observe that the trial Judge who conducted trial and delivered the impugned judgment has, in the beginning of judgment, narrated the facts contained in the report lodged by complainant Dhanna Lal. Having mentioned the facts, the trial Judge referred the arguments advanced by both the sides and the case laws cited by them. Thereafter the trial Judge proceeded to note the statements of prosecution witnesses and the defence witnesses and then immediately jumped to the conclusion that appellants Jansi and Laxmi Narayan in furtherance of their common intention inflicted injuries on the persons of Kalyan Sahai and Bhagwan Sahai and the injury on the head of Kalyan Sahai was endangering to life and that injury on the person of Bhagwan Sahai was grevious in nature and accordingly convicted the appellants for offence under Sections 307, 326, 324 and 323 IPC read with Section 34 IPC. Surprising enough, while arriving at the conclusion of guilt against the appellants, the Trial Court neighter thought it advisable to analyse the evidence nor bothered to consider the arguments and the authorities cited by the either side. The impugned judgment does not contain any point for determination, the decision thereon and the reasons for the decision. What the trial Judge has concluded is 'that as per the prosecution case Jansi and Laxmi Narayan were armed with axe and there is no evidence on record that they inflicted any injury by blunt weapon. It appears that none of the accused was convicted for offence under Section 323 IPC (other co-accused have been acquitted of the charges, but still they have been convicted under Section 323 read with Section 34 IPC. Surprisingly enough, they have also been convicted for offence under Sections 307 and 326 read with Section 34 IPC for the same injury. Once the appellants have been held guilty for offence under Section 307/34 IPC for causing a particular injury, there could be no justification whatsoever to convict them for offence under Section 324/34 IPC for the same injury.
10. Thus, the impugned judgment in my considered view cannot be said to be a judgment under law in view of the provisions of Section 354 Cr.P.C. Except the conclusion without any reasoning, there is nothing in the judgment to be appreciated. A "decision" does not merely mean the "conclusion". It embraces within its fold the reasons which form the basis for arriving at the "conclusions". As stated above, the judgment of the Trial Court contains only the "conclusions" and nothing more. The trial Judge, in my firm view, has committed serious error of law in not even touching any of the following vital legal issues without which she could not have legally arrived at a conclusion of guilt against the appellants:
(i) the place of incident (who were the agressors, whether complainant party or the accused persons) ;
(ii) What was the genesis of the occurrence ;
(iii) Whether the appellants had the right of private defence of person and property;
(iv) Whether the appellants had common intention and in furtherance of their common intention, inflicted injuries on the persons of Kalyan Sahai and Bhagwan Sahai.
(v) Who was responsible for causing injury on the head of Kalyan Sahai;
11. Since the judgment of the Trial Court contains only the "conclusions" and nothing more, this court could have set aside the conviction and remanded back the case to the Trial Court for its fresh disposal by writing a fresh judgment in accordance with law. But, in my considered view, that would cause serious prejudice to the appellants, inasmuch as they have been facing trial since a decade and if the case is remanded back for fresh disposal, that would further prolong the case. Thus, to avoid further delay, I feel it in the interest of justice that this appeal should be decided on merits.
12. I have heard learned counsel for the parties and have gone through the evidence and material available on record.
13. To arrive at a just conclusion, it would be appropriate to decide the points formulated and enumerated above, (1) The place of occurrence:
14. The report, Ext.P1 lodged by PW2 Dhanna Lal indicates that the occurrence took, place on the way when complainant party was returning to their home from their field PW1 Kalyan, PW2 Dhanna Lal, PW4 Sita Ram and PW12 Bhagwan Sahai have deposed that when they protested against ploughing of their field by the accused, they inflicted injuries and the occurrence took place in their field. PW2 Kalyan in his cross examination has admitted that accused came to plough the field of Om Prakash Kalal, but leaving that field they came to plough their field. PW2 Dhanna Lal has specifically closed that the fact of beating on the way has wrongly been written in the report Ext.P 1. Undisputedly, the report Ext.P1 was lodged on the day of incident i.e. 12.8.1993. On the next day of incident i.e. on 13.8.93 the site of incident was inspected and inspection memo, Ext.P4 was drawn, wherein the place of incident shown was the field of complainant, which has been shown to be adjoining to the field of Om Prakash Kalal, which was purchased by the accused persons. A glance at the memo Ext.P4 reflects that there was no blood spot or any other sign of fight having taken place in the field of complainant, except fresh foot print marks of several persons. PW1 Kalyan has no doubt deposed that accused persons started ploughing their field, but the site plan Ext.P4 does not certify the said fact. It is thus evident that the place of incident has been shifted from way to the field of compainant party.
(2) Genesis of the occurrence:
15. As per the prosecution case, the members of the accused party came to the field of complainant party in Order to plough it and on the protest having been made by the complainant side, the incident took place. As stated above, the report Ex.P1 reflects that accused party came to plough their field known as Kalalbala. PW 1 Kalyan has admitted that-accused persons came to plough the field of Om Prakash Kalal. but according to him later- on, they came to their field to plough it. The witness has further admitted that the field of Om Prakash Kalal is situated adjoining to their field. It appears to me that the witness has tried to slate that their total field area is known as Kalal Bala. Whereas, PW2 Dhanna Lal has shown ignorance about the existence of the field of Om Prakash Kalal. He has further denied the fact that accused came to plough the field of Om Prakash Kalal. PW4 Sita Ram has also deposed that he never heard the name of Om Prakash Kalal and even denied the existence of the field of Om Prakash Kalal adjoining to their field. The witness has specifically stated that their field is known as Kalal-Bala and accused came to plough it. Even injured Bhagwan Sahai (PW12) has denied the existence of the field of Om Prakash Kalal adjoining to their field. He has specifically deposed that they were in possession of the field known as Kalal Bala. However, the site plan, Ex.P4 indicates that field of Om Prakash Kalai is situated adjoining to the field of corhplainant party. That apart, from the statement of DW3 Badri Narain Patwari and on perusal of Jamabandi (Ex.D14), Trace Plan (Ex.015) and Khasra Girdawari (Exts.D16 and 17), it is evident that the agricultural land bearing Khasra No. 80 is at present in the Khatedari of Ramji Lal S/o Jansi Ram (appellant No. 2) and Jagdish Prasad S/o Laxmi Narain (appellant No. 1) and prior to them, khatedari was in the name of Om Prakash Kalai. From a perusal of the statement of DW3 Badri Narayan it is crystal clear that accused purchased the above land in question from Om Prakash and presently it was being ploughed by them. However, some of the members of complainant party in their deposition have tried to confuse by stating that these fields are also known as Kalal Bala and Kalal Bala field was in their possession.
16. Thus, from the evidence brought on record it appears probable that on the day of alleged incident, the accused persons came to plough their field which they had purchased from Om Prakash Kalal and while they were engaged in ploughing their field, the members of the complainant party came there, objected to it and on that account the incident occurred. There is no supporting evidence to prove that the accused persons came to the field of complainant party. Thus, in my considered view, the prosecution has supressed the true genesis of the incident.
17. Having decided that the prosecution has shifted the place of incident and has supressed the genesis of the incident, in as much as the members of the complainant party went to the field of accused persons, objected ploughing their field and on that account the incident took place. Thus it must also be concluded that the members of the complainant party were the agressors. In that view of the matter, the question which now emerges for consideration is whether the appellants had the right of private defence of person and property.
(3) Right of private defence of person and property, whether available to the appellants?
18. Sections 96 and 97 of the Indian Penal Code give right of private defence against certain offences and acts and that is controlled by the provisions of Section 99 of the Penal Code. In the instant case, the appellants have claimed right of private defence. While examining the entire incident with care and having critically analysed the evidence, it can be inferred that harm, if any, caused by the appellant, was necessary for either warding off the attack or for forstalling any further reasonable apprehension from the attackers, viz. the members of the complainant side. Appellant Laxmi Narain lodged a cross FIR, Ext.DS at Police Station Bassi and the police after investigation submitted a charge sheet, Ext.DG making out a case for offence under Sections 147 and 323 IPC against Kalyan Sahay and Bhagwan Sahay and Others. In the course of incident, Ram Bharosi, Mst. Ladi, Badri Prasad, Jinsi, Laxmi Narayan and Kalyan S/o Panchu also sustained injuries and they were examined by DW2 Dr. Kailash Narain Gupta and he prepared their injury reports, Exts.DS to D13. Admittedly, no external injury was found on the persons of Mst. Ladhi and Laxmi Narain. However, the medical officer noticed two abrasions on the person of Badri Prasad, one abrasion with swelling on the forehead of Jinsi, two abrasions and swelling on the person of Kalyan S/o Panchi and one contusion on left shoulder of Ram Bharosi. All these facts stand certified by DW1 Ram Singh and DW2 Dr. Kailash Narain Gupta. DW3 Badri Narain Patwari has also proved the documents viz., Jamabandi, Traces, Khasra Gird-waris, Exts. D14 to D17, respectively, thereby it has been proved that Ramjilal and Jagdish Prasad both sons of appellants were Khatedar tenants of Khasra No. 80 and prior to them, one Om Prakash Kalal was the khatedar tenant of the land bearing Khasra No. 80. Thus from the evidence on record it appears probable that appellants were ploughing their field and the members of the complainant party objected to it. The apple of discord was ploughing the field by the appellants. The allegation that appellants and co-accused came to the field of complainant party to plough it, does not appear to be logic. !n my considered view, it appears to be logically improbable that the appellants went to plough the field of complainant party obviously for the simple reason that neither the accused party claimed the ownership over the field in question nor there was any dispute about the same. Further, as already observed above, no evidence of ploughing the field was available at the time of site inspection. Therefore, as held above, the complainant party was agressor who went to the field of accused and objected ploughing the field, which resulted in the incident and the members of accused side sustained injuries, though simple in nature. The fact that members of accused side sustained only simple injuries is not relevant, inasmuch as fatal injury was equally possible and that Jinsi sustained abrasipn with swelling on his forehead. in Yogendra Morarji v. State of Gujarat, (AIR 1980 SC 660) their Lordships of the Apex Court had an occasion to consider the question as to the availability of right of private defence and after elaborate discussion, their Lordships concluded:
"Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. (Section 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to except from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender "if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack". It would be wholly unrealistic to except of a person under assault, to modulate his defence step by step according to the attack."
Their Lordships further held:
"The surrounding circumstances and probabilities of the case clearly indicate that these five persons had attempted to stop the vehicle of the accused in Order to wrongfully restrain or gherao the accused in prosecution of their avowed common object of "getting money" from him by putting him in fear of physical harm. In short, the common object of this assembly of five persons in attempting to intercept and stop the vehicle of the accused was to extort money from him by putting him in fear of injury. In the circumstances, as soon as Khima and Kana raised their hands to stop the jeep of the accused and then tried to follow and close on it, it was not unreasonable for the accused to apprehend some physical harm at their hands. Therefore, under Section 102, Penal Code, a right of Private defence of body had accrued to the accused."
19. Thus, considering the facts and circumstances of the case and the manner in which the incident took place in the light of the observations quoted above, the inevitable conclusion would be that accused appellants had the right of private defence against their persons and property.
(4) Common Intention:
20. There is no quarrel with the legal proposition that provision of Section 34 IPC is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly as to what part was taken by each of them. This section is applicable even if no injury has been caused by the particular accused himself. However, in Order to bring home the charge of common intention, the prosecution has to establish by evidence, direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence, be it pre-arranged or on the spur of moment.
21. The prosecution evidence, if examined in the back-ground of above legal proposition, clearly reflects that incident took place at the time when accused party were ploughing their field and the complainant party objected to it and during the course of incident both the parties sustained injuries. Thus, the senirio in which the incident took place, common intention to inflict injuries on the persons of Kalyan Sahai and Bhagwan Sahai cannot be inferred.
(5) Who was responsible for causing the injuries on the person of Bhagwan Sahay:
22. To decide this question, it would be appropriate to refer the relevant evidence. PW1 Kalyan, PW2 Dhanna Lal and PW4 Sita Rain have deposed that appellant No. 1 Laxmi Narain inflicted injury by axe on the head of Bhagwan Sahay and appellant No. 2 Jansi struck an axe blow on the left leg of Bhagwan Sahay. But Bhagwan Sahay himself has deposed that Jansi inflicted injury on his head by axe and Laxmi Narayan inflicted injury on his leg by axe. PW6 Dr. Bal Mukund Sharma who examined the injuries of the injured has noticed lacerated wound on mid parietal region of scalp. Evidently thus, there are major contradictions in the statements of prosecution witnesses as to who caused the injury on the head of Bhagwan Sahay. Apart from uncertainty as to the infliction of axe blow on the head of Bhagwan Sahay by either of the appellants, the fact remains that this allegation of causing axe blow stands belied by the opinion of Medical Jurist. The Medical Jurist has opined that injury of head was caused by blunt weapon and not by axe. Likewise, the prosecution witnesses have made contradictory statements as to who caused the injury on the left leg of Bhagwan Sahay. According to PW6 Dr. Sharma, he noticed two injuries on left leg of Bhagwan Sahay, one was lacerated wound on the upper aspect of the left third toe at the metatarso phalangeal joint, with a piece of bone projecting through it and another was incised wound on the inter digital region of the left great toe and left second toe of the left. foot. On X-ray, fracture of proximal phalynx of IIIrd toe was seen. The injury on the left third toe was stated to. be caused by blunt weapon and not by axe, in which fracture was seen. Curiously enough, according to the prosecution case, only one injury was caused by axe on the leg of Bhagwan Sahay. Therefore, it must be concluded that the prosecution evidence is insufficient to conclusively prove as to which of the two appellants inflicted injuries by axe on the head and left leg of Bhagwan Sahay.
(6) Who was responsible for causing injury on the person of Kalyan Sahay:
23. Kalyan has deposed that Jansi and Laxmi Narain both inflicted injuries on his head by axe and Jansi also inflicted injury by axe on his leg. Appellant Laxmi Narain also inflicted axe blow on his right hand near shoulder. PW2 Dhanna Lal has deposed that Laxmi Narain inflicted axe blow on the head of Kalyan, while Jansi struck axe blow on his head and leg. PW4 Sita Ram and PW12 Bhagwan Sahay have deposed that Jansi and Laxmi Narain both inflicted injuries by axe on the head of Kalyan. However, PW6 Dr. Balmukund Sharma noticed only one incised wound on the right parietal region of Kalyan and except this injury no injury was found to have been caused by sharp weapon. The other injuries found on head, leg and hand of injured Kalyan Sahay were found to be caused by blunt weapon. Thus the prosecution evidence is further not conclusive of the fact as to who caused the incised wound on the head of Kalyan.
24. As already observed above, there is no material on record to prove as to which of the appellants was responsible for causing injury on the head of Kalyan and the prosecution witnesses have given different and distorted version not conclusive of proving the prosecution case. In that view of the matter, it is not possible for this court to hold that any one of the appellants caused injury by axe on the head of injured in furtherance of their common intention and, therefore, the appellants cannot be convicted for offence either under Section 307 or 326 read with Section 34 IPC. Similarly, as already held above that prosecution could not prove conclusively that either Jansi or Laxmi Narain caused injuries on the head and leg of Bhagwan Sahay, therefore the appellants could not have been convicted for offence under Section 324 IPC. Otherwise also, there was no charge under Section 324 IPC against the appellants for causing simple injuries by sharp edged weapon on the person of injured Bhagwan Sahay. The charge under Section 324 IPC was framed in relation to the injury alleged to be caused on the left leg of Sita Ram and not for .............injuries on the person of Bhagwan Sahai and for the charge under Section 324 IPC the appellants have not been held guilty for causing injury on the leg of Sita Ram. Likewise, charge Under Section 325 IPC was framed against the appellants for causing grevious injuries by blunt object on the left leg of Kalyan Sahay and Bhagwan Sahay and they have been acquitted of the said charge. Be that as it may, if at all the injuries were allegedly caused on the persons of Kalyan Sahay and Bhagwan Sahay by the appellants, the same were caused by them in exercise of their right of private defence of persons and property. Viewed at both angles, the appellants could not have been convicted for offence under Sections 307, 326, 324 and 323 read with Section 34 IPC and they deserve acquittal.
25. Before parting with the case, it needs to be observed that two criminal cases arising out of the same incident should have been tried and disposed of by the same court so as to prevent conflicting judgments. The case pending in court of Judicial Magistrate though does not involve offences exclusively triable by the Court of Sessions, but the Magistrate has power under Section 323 Cr.P.C. to commit the case to the court of Sessions in which another case arising out of the same incident is pending trial. It is given out that the case instituted on the report of accused side is still pending in the court for Magistrate. Be that as it may, it is made clear that the court in which the case is pending for decision should not get influenced by the observations made in this case and without being influenced by these observations, should proceed to decide the case on merits on the basis of evidence adduced in the case.
26. In the result, the appeal succeeds and is hereby allowed. The conviction of appellants Laxmi Narayan and Jansi for offence under Sections 307, 326, 324 and 323 read with Section 34 IPC and the sentences awarded thereunder are set aside and they are acquitted of the charges. The appellants are in custody and they be set at liberty forthwith, if not required in any other case.
27. A copy of this judgment be sent to the Officer who decided the case under appeal, A copy of this judgment be also sent to the court where cross case is pending.