Rajasthan High Court - Jaipur
Raja Ram @ Raju And Ors. vs State Of Rajasthan on 4 February, 2003
Equivalent citations: RLW2003(2)RAJ983, 2003(2)WLC501
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT Bansal, J.
1. As many as six accused were put on trial before the learned Special Judge (Communal riots cases) and Additional Sessions Judge, Tonk in Sessions Case No. 36/97. The learned trial Court acquitted the accused Kajod of all the charges and convicted and sentenced the accused-appellants Raja Ram @ Raju, Kistura, Prabhu Lal, Ganesh and Ram Avtar vide its judgment and order dated July 25, 1998 as under:-
(1) Raja Ram @ Raju u/Sec. 302/149 IPC Life imprisonment with a fine of Rs. 1,000/-, and in default of payment of fine to further undergo two months' rigorous imprisonment.
u/See. 324/149 u/Sec. 323 IPC u/Sec. 148 IPC IPC One year's rigorous imprisonment. Six months' rigorous imprisonment. Six months' rigorous imprisonment.
(2) Ganesh u/Sec. 302/149 IPC Life imprisonment with a fine of Rs.1,000/-, and in default of payment of fine to further undergo two months' rigorous imprisonment.
u/Sec. 324 IPC u/Sec. 323 IPC u/Sec. 148 IPC One year's rigorous imprisonment Six months' rigorous imprisonment Six months' rigorous imprisonment (3) Prabhu Lal Ram Avtar & Kistura each u/Sec. 302/149 IPC IPC Life imprisonment with a fine of Rs. 1,000/-, and in default of payment of fine to further undergo two months rigorous imprisonment.
u/Sec. 324/149 IPC u/Sec. 323 IPC One year's rigorous imprisonment. Six months' rigorous imprisonment. u/Sec. 147 IPC Four months' rigorous imprisonment.
2. All the substantive sentences were ordered to run concurrently.
3. The said judgment has been assailed by the appellants in the instant appeal.
4. Briefly stated the prosecution case is that PW-5 Ishwar Singh s/o Shri Onkar Patel, R/o Deoli, P.S. Barauni (District Tonk) submitted a written report Ex.P3 to SHO, P.S. Barauni on June 14, 1996 at 8:30 P.M. in Hospital. Tonk with the averments that today at about 4:00 P.M. he, Badri and Prabhu were coming back to their village from Niwai town. When they reached near village Chironj, Raju @ Rajaram, Ganesh, Kistura, Ramavtar, Prabhu, Kajod and younger brother of Ramavtar all by caste Keer came from the side of a hotel. They were armed with Lathi, Gandasa and Axe. They stopped their motor-cycle and started beating them. Raju gave a Gandasa blow on left side of the forehead of Badri, Kistura inflicted an injury on right side of the forehead of Prabhu and Ganesh gave a blow with axe on his forehead. The remaining accused gave lathi blows to all of them. They were saved by Kajod anti some other persons. They took them to hospital and got admitted. On the basis of this report Ex.P.3, the SHO, PS Barauni registered a case under Section 149, 341, 323 and 307 IPC and investigation commenced. Formal FIR is Ex.P21. Injured Badri died in the hospital on the night on June 14, 1996 and thereafter Section 302 IPC was added by the police. The investigating Officer reached on the spot on June 15, 1996 and prepared Site Plan Ex.P.5. Blood smeared soil and control soil were seized and sealed vide Seizure Memos' Ex.P6 and Ex.P7. Blood stained two stones were also seized vide Seizure Memo Ex.P.8. Injuried ishwar Singh and Prabhu were medically examined on June 14, 1996. Their injury reports are Ex.P.9 and Ex.P.23 respectively. Autopsy on the dead body of Badri was conducted by PW.21 Dr. Y.N. Verma, Medical Jurist, SMS Hospital, Jaipur who prepared post-mortem report Ex.P.32. On June 15, 1996. Blood stained clothes of Prabhu. Ishwar Singh and deceased Badri were seized and sealed vide Seizure Memos' Ex.P.2, Ex.P4 and Ex.P 10 respectively. Statements of the witnesses were recorded under Section 161 Cr.P.C. Injured Prabhu was X-rayed and it was found that his fibula bone was fractured. X-ray report is Ex.P21. All the six accused were arrested and on their disclosure statements recorded under Section 27 of the Evidence Act and at their instance lathies were recovered. On completion of the investigation the chargesheet was laid in the Court of Additional Chief Judicial Magistrate. Niwai who committed the case to the Court of learned Sessions Judge, Tonk. On transfer the file was received in the Court of learned Additional Sessions Judge, Tonk.
5. Learned Additional Sessions Judge framed charges under Sections 302 or 302/149, 147, 148, 324/149, 325/149 and 323/149 IPC against the accused-appellant Rajaram @ Raju, under Sections 302/149, 147, 148, 324 or 324/149, 325/149 and 323/149 IPC against accused-appellant Ganesh, under Sections 302/149, 147, 148, 324/149, 325/149 and 323/149 IPC against the accused Kajod and under Sections 302/149, 147, 148, 324/149, 325/149 and 323/149 IPC against the accused-appellant Kistura, Prabhu Lal and Ramavtar. All the accused denied the charges and claimed trial.
6. The prosecution examined as many as 21 witnesses in support of its case. The accused-appellant Rajaram @ Raju stated in his statement recorded under Section 313 Cr.P.C. that on the date of alleged incident he was standing in front of his hut. Badri, Prabhu and Ishwar Singh came on motor-cycle, seeing him on the road they stopped their motor-cycle. Thereafter Badri abused him and said that why did he lodge a report against him at the police station. He replied that he (Badri) had administered poison in Limca to him and made attempt to kill him and, therefore, he lodged a report to police. Thereafter Badri, Prabhu and Inhwar abused him, Beating took place between him and Badri. When Badri fell down he ran away. When Ishwar Singh and Prabhu were running to catch him, other accused persons came from their huts. Prahlad, Suraj and Kajod were not present there. This incident took place near hotels. Other accused persons claimed innocence and stated in their statements recorded under Section 313 Cr.P.C. that when they asked Ishwar and Prabhu as to why they are running after Rajaram, Prabhu and Ishwar Singh started to quarrel with them also. No witness was examined in defence.
7. The learned trial Judge, on hearing the final submissions, acquitted the accused Kajod of all the charges and convicted and sentenced the remaining accused-appellants Rajaram @ Raju, Kistura, Prabhu Lal, Ganesh and Ramavatar as indicated here-in- above.
8. We have heard learned counsel for the appellants, learned Amicus Curiae for the appellants, and learned Public Prosecutor for the State. With their assistance, we have carefully scanned and scrutinized the material on record.
9. PW.21 Dr. Y.N. Verma stated that on June 15, 1996 he was posted as Medical Jurist in SMS Hospital, Jaipur. On that day he conducted post-morlem examination on the dead body of Badrilal S/o Shokaran, aged 40 years, by caste-Jat, R/o Chiron) at 10:40 A.M. and found the following injuries:-
External Injuries (1) Abrasion 4xlcm. and 3x1cm. over left leg upper 1/3rd with gap 1cm.
(2) Abrasion 1x1cm. over back of right elbow and 1/2 x 1/2 cm. medical surface of right elbow.
(3) Abrasion 3x2cm. back of left elbow.
(4) Bruise with abrasion 4x3cm. posterior laterally left forearm, middle 1/3rd.
(5) Abrasion 2x1cm. over right side of chin.
(6) Abrasion 2x2cm. over right maxillary procum.
(7) Lacerated wound 1-1/2cm. with abrasion around it and diffuse swelling over left temporal occipital region, bone deep. Clotted blood present.
(8) Lacerated wound 4cm. x 3/4cm. x bone-deep over right side mid parietal region placed obliquely longitudinally.
(9) Lacerated wound 3-1/2cm. x 1/2cm. x scalp tissue deep over 2cm. behind the injury No. 8 over parieto occipital region with diffuse swelling.
(10) Lacerated wound 3cm. x 1/2cm. x scalp tissue deep over left side. 3cm. away from mid line and left parietal region with diffuse swelling, irregular margin and clotted blood.
(11) Lacerated wound of size 2-1/2cm. x 1/2cm. x muscle deep over palmar surface of left thumb placed obliquely with bruised. Irregular margin and on dissection fracture of distal phalanx arid extravasation of blood in surrounded region.
Internal Injuries On dissection of cranium-There was sub-scalp haematoma over left temporal, both parietal region, both occipital region and dark red with tissue staining was present. There was fracture of size 15cm. x Ocm. extending from left temporal to left occipital bone and extravasation of blood was surrounding region and there was extra dural haematoma over left temporal and occipital region about 60 CC. clotted blood and dark red in colour. Further examination shows there was sub dural haematoma on right side frontal, parietal, temporal and occipital and left temporal, parietal, occipital region. The brain had multiple contusions of size 6 x 3cm. to 2x1cm. over left temporal, left occipital, right parietal and right occipital and laceration of size 3x2x1cm. to 1x1x1cm. over outer part of right frontal and under surface of frontal lobe respectively and dark red clotted blood and tissue staining was present. Antemqrtem in nature.
10. Dr. Verma also stated that all the injuries were ante- mortem in nature and in hi.s opinion, the cause of death was coma brought about as a result of ante-mortem injuries to skull and brain. These injuries were sufficient in the ordinary course of nature to cause death. He prepared post-mortem report Ex.P32 which bears his signature.
11. There is no dispute that deceased Badri Lal met with a homicidal death and this fact is amply established by the statement of Dr. Verma. Learned counsel for the appellants has not challenged the testimony of Dr. Verma and in our opinion also, he is a reliable witness and from his testimony the prosecution has succeeded in proving the fact that the deceased Badri Lal met with a homicidal death.
12. PW17 Dr. V.K. Nigam stated on oath that on June 14, 1996 he was posted as Medical Jurist, Sahadat Hospital, Tonk and on police request, at 9:15 P.M. he examined Ishwar Singh S/o Onkar Jat, R/o Deoli and found the following injuries on his person:-
(1) Incised wound obliquely placed, directing from back to front aspect 1-1/2" x 1/8" x skin deep on left frontal region, 2" left lateral to mid line.
(2) Pain on right upper back region and right mid thigh region but no visible injury was seen.
13. Dr. Nigam also stated that injury No. 1 was simple in nature and caused by sharp weapon. Duration of injuries was within six hours. He prepared injury report Ex.P'9.
14. Dr. Nigam further stated that on the same day at 8:30 P.M., he examined Prabhu S/o Ramnath Keer, R/o Chironj and found the following injuries on his person:-
(1) Swelling 4" x 4" over upper 1/2 of right leg in its anterio lateral aspect.
(2) Lacerated wound 1-1/4" 1/2" x muscle deep over right parietal region, 3" right lateral to mid line.
(3) Swelling with lacerated wound 1" x 3/4", 1/2" x 1/4" x skin deep over right occipital region, 1/2" right lateral to mid line.
(4) Abrasion 1/2" x 1/4" over left thumb near tip area.
(5) Bruise 2-1/2" 1/2" with a gap in bet. over posterio lateral aspect of left upper arm.
(6) Pain on upper 1/2 of left leg but no visible injury was seen.
15. Dr. Nigam also stated that all the injuries were caused by blunt weapon. For injuries No. 1 to 3 X-ray was advised. The remaining injuries were simple in nature. Duration of injuries was within six hours. He prepared injury report Ex.P.23. He further stated that on receiving X-ray report Ex.P24, he found injury No. 1 to be of grievous nature.
16. There is no reason to disbelieve the testimony of Dr. Nigam, an impartial witness. Thus from his testimony it has also been proved by the prosecution that Ishwar Singh and Prabhu also sustained the aforementioned injuries in the alleged incident.
17. Learned counsel for the appellants has contended that no case under Section 302/149 IPC is made out against the appellants and at the most they can be liable under Section 304 Part II read with Section 149 IPC as there was no intention of any of the appellants to cause death of the deceased Badri Lal or to cause such injury as was likely to cause his death. At the most it can be inferred that the appellants had the knowledge that the injuries which they were going to cause to the deceased Badri Lal may result in his death. Therefore, the appellants are entitled to be acquitted from the charge under Section 302/149 IPC. Learned counsel has not challenged the conviction of the appellants for the remaining charges. Learned counsel has also submitted that the appellants have been in custody for more than 6 years and 7 months and, therefore, they be sentenced to the period already undergone by them in detention. Learned Public Prosecutor has supported the impugned judgment.
18. We have given our thoughtful consideration to the submissions made by learned counsel for the appellants and learned Public Prosecutor.
19. PW-1 Prabhu and PW-2 Kajod stated that on June 14, 1996 at about 4:00-5:-00 P.M., he alongwith Badri and Ishwar was returning from Niwai. When they reached near village Chironj they found Rajaram, Ganesh, Kistura, Prabhu and Ramavtar standing on the way, These persons were armed with weapons. They stopped their motor-cycle and thereafter Rajaram inflicted an injury with Gandasa on the person of Badri. The remaining accused gave lathi blows to Badri and he fell down. Prabhu further stated that Ishwar Singh was caused injury with an axe by Ganesh and he was inflicted injuries by Kistura, Prabhu and Ramavtar with lathies. They were saved by Kajod and Prahlad who took them to hospital, Tonk; Badri was referred to hospital, Jaipur where he died. The incident was also seen by Surjaram. Prabhu also stated that he got himself examined by a Doctor. Same is the statement of PW-5 Ishwar. PW.2 Kajod, PW.3 Suraj and PW.4 Prahlad have supported the version of Prabhu and Ishwar. In the alleged incident Prabhu and Ishwar Singh sustained injuries and, therefore, their presence on the spot at the time of the incident cannot be doubted. It was stated by the aforementioned witnesses that the appellant Rajaram was having a sharp edged weapon Gandasa or Gandasi and with that weapon he caused injury on the head of the deceased Badri. But in our opinion this statement is not reliable as all the injuries found on the dead body of the deceased Badri were caused by blunt weapon. None of the injuries was inflicted by sharp weapon. Therefore, it is also clear that the appellant Rajaram @ Raju was not having a sharp edged weapon in his hand but he was armed with a lathi as admitted by him in his statement recorded under Sec. 313 Cr.P.C. Rest of the statements of the aforementioned witnesses are trust-worthy and can be relied upon. The aforementioned witnesses get support from medical evidence also. As already stated, on post-mortem examination 11 ante- mortem injuries were found on the dead body of Badri. All the appellants have admitted their presence on the spot at the time of the alleged incident in their statements recorded under Section 313 Cr.P.C. Thus it has been proved by the prosecution beyond reasonable doubt that all the five appellants formed an unlawful assembly, the common object of which was to beat Badri, Prabhu and Ishwar Singh. In our considered opinion, the common object of their unlawful assembly was not to cause death of the deceased Badri. PW1 Prabhu admitted in his examination-in-chief that there was no previous enmity between them and the appellants. It appears from the prosecution evidence that the appellant Rajaram @ Raju had a doubt that prior to the alleged incident, the deceased Badri had administered poison in Limca to him and, therefore, he lodged a report with the police against Badri. It also appears that because of this report when the deceased Badri was returning from Niwai alongwith Prabhu and Ishwar Singh, he found all the appellants standing in front of their huts and he asked Rajaram as to why did he submit a report against him to the police and thereafter verbal altercation took place between them. It further appears from prosecution evidence that all the appellants formed an unlawful assembly with the common object to beat Badri and others. They brought lathies from their huts and caused injuries to Badri, Prabhu and Ishwar Singh. Unfortunately, injuries sustained by Badri proved fatal and he died in the hospital.
20. Now the question which arises for consideration is what offence was committed by the appellants. In Mangal and Ors. v. The State (1), the Allahabad High Court has held that-
"There was previous enmity but this occurrence took place on a very trifling matter. The appellants all came armed on the spot. They caused a large number of injuries to Natthoo, but only two were found on his vital parts. Ballam injuries are on non- vital parts of the body. Of course, under injury No. 15 tibia bone was fractured. It was not difficult for the appellants to have committed the murder of Natthoo on the spot because there was nobody to save him from the assault except Nannu and Smt. Omwati, and none of them used any weapon, and yet we find that except for causing one lacerated wound on the scalp and one contusion on the left side of the chest, all other injuries were caused on non- vital parts of the body. In our opinion, the intention was not to kill. It was only to assault and teach a lesson. But it is a case where several offences indulged in diverse acts with prior concert. They assaulted Natthoo with various weapons, threw him on the ground and then caused him a number of injuries. The knowledge of likely death will be the consequence of the criminal act of beating specially when it is made with spears and it will be attributed to each offender.
Part II of Section 304 of the Indian Penal Code provides for punishment for culpable homicide if it does not amount to murder, if the act is done with the knowledge that it is likely to cause death but without any intention to cause it or to cause such bodily injury as is likely to cause death. Section 149 of the Indian Penal Code applies to cases in which an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, and every person who, at the time of the committing of that offence, is a member of the same assembly, has to be held to be guilty of that particular offence.
It is thus clear from our assessment of the evidence that the assault in this case was not made with an intention to committing murder of Natthoo but since the appellants had come in a force armed with lathis and Baliams and their intention was definitely to beat Natthoo, it was an act which they did with the knowledge that it was likely to cause death and since it was committed in prosecution of their common object, while they were members of the unlawful, assembly each one of them shall be guilty of the offence punishable under Section 304, Part II, read with Section 149 of the Indian Penal Code."
21. In Sarman and Ors. v. State of Madhya Pradesh (2), the Hon'ble Supreme Court has held that-
"Now coming to the nature of the offence it is true that the doctor found a number of injuries. However, it must be noted than even according to the prosecution all the appellants were only armed with lathies and were charged for offence punishable Under Section 147, IPC. The doctor, PW.19 who conducted post mortem noticed 17 injuries. Out of them injuries Nos. 1, 3, 10, 11 and 14 were described as incise wounds. Though they resulted in bleeding but no other damage was noticed. It is only injury. No. 15 which resulted in a depressed fracture of parietal bone and ultimately proved in membran puncture. Though the doctor in a general way stated cause of death was due to multiple injuries but he has specifically stated that on injury No. 15 he noticed a depressed fracture of parietal bone which individually was sufficient to cause death of the deceased. In these circumstances question that arises is whether all the other accused also responsible for the death of the deceased, the prosecution has not explained as to how the deceased received incise wounds though they are simple. The prosecution case in general is that all of them were found with lathies. Nobody has stated that which of them caused the injury No. 15 which unfortunately resulted in the death of the deceased. If anyone of the appellants had exceeded the common object and acted on his own, it would be his individual act. In this case unfortunately no witness has come forward as to which of the accused has caused which injury. In these circumstances we find it difficult to award punishment under Sec. 302/149, IPC.
Although post-mortem report says that all the injuries might have caused the death of the deceased but in as much as the accused inflicted injuries with lathies and particularly when they are simple and on non vital parts it cannot be said that their object was to kill the deceased. They may have knowledge that the blows given were likely to cause death.
Accordingly we set aside the conviction of the appellants under Section 302/149, IPC and sentence of imprisonment for life and instead convict these under Section 304 11/149, IPC and sentence them to seven years imprisonment. If they have served out the sentence of seven years their bail bonds stand cancelled."
22. The above decisions are fully applicable to the facts of the case on hand. All the appellants were armed only with lathies. All the injuries found on the dead body were inflicted by blunt weapon. Out of 11 injuries, 4 injuries were on the head but only left temporal bone was fractured. In the opinion of the Doctor the cause of death was injuries inflicted on the head of the deceased. PW.21 Dr. Y.N. Verma has not specifically stated that which of the four injuries found on the head of the deceased proved fatal. According to the version of PW.1 Prabhu and PW.5 Ishwar, the appellant Rajaram @ Raju caused injury on the head of the deceased Badri with Gandasi or Gandasa but, as stated above, this version is not true as all the injuries found on the dead body of Badri were caused by blunt weapon. Prabhu, Ishwar and other eye-witnesses to the occurrence further stated that Badri fell down from his motor-cycle and thereafter all the appellants inflicted injuries on his person, therefore, it is not clear that which of the appellants had caused fatal injury to the deceased. As stated above the common object of unlawful assembly of the appellants was not to cause death of Badri but their common object was to beat Badri, Ishwar and Prabhu. In our considered opinion, the assault was not made by the appellants with an intention to cause such injury as was likely to cause death. But since the appellants had come in a force armed with lathies and their object was definitely to beat Badri and others, it was an act which they did with the knowledge that it was likely to cause death and since it was committed in prosecution of their common object while they were the members of the unlawful assembly, each one of them shall be guilty of the offence punishable under Section 304 Part II read with Section 149 of the Indian Penal Code.
23. For the aforesaid reasons, we come to the conclusion that the prosecution has failed to prove the charge under Section 302 read with Section 149 IPC against the appellants but the appellants are found guilty under Section 304 Part II read with Section 149 IPC. The conviction and sentence for the other offences has not been challenged by learned counsel for the appellants. So far as the sentence for the offence under Section 304 Part II read with Section 149 is concerned, the appellants have been in custody for more than 6 years and 7 months. Looking to the facts and circumstances of the case it is deemed just and proper to sentence the appellants to the period already undergone by them in detention. Thus, the appeal of the appellants deserves to be allowed in part as under.
24. Consequently, the appeal of the appellants Raja Ram @ Raju, Kistura, Prabhu Lal, Ganesh and Ram Avtar is partly allowed. They are acquitted of the charge under Section 302/149 IPC. Instead we convict them under Section 304 Part II read with Section 149 IPC. They have been in custody for more than 6 years and 7 months. They are sentenced to the period already undergone by them in detention. Conviction and sentence awarded to the appellants by the trial Court for other charges is maintained. All the sentences to run concurrently. The appellants are in judicial custody. They shall be set at liberty, if not required in any other case.