Rajasthan High Court - Jaipur
Dharam Singh Meena vs State And Ors on 10 April, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT 1) D.B. CRIMINAL APPEAL NO.1079/2006. Bharat Lal Vs. State of Rajasthan 2) D.B. CRIMINAL APPEAL NO.1608/2007. State of Rajasthan Vs. Kesariya & Ors. 3) D.B. CRIMINAL REVISION PETITION NO.1277/2006. Dharam Singh Meena Vs. State of Rajasthan & Ors. Date of Judgment:- April 10, 2013. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE MRS.JUSTICE NISHA GUPTA Shri Nishant Sharma and Shri Nirmal Kumar for Shri Rajesh Goswami for the accused-appellant. Shri Javed Choudhary, Public Prosecutor. None present for the complainant. ******* Reportable BY THE COURT:- (Per Mohammad Rafiq J.)
1) Aforementioned two appeals and revision petition are directed against the judgment dated 27/9/2006 passed by the Court of learned Additional Sessions Judge (Fast Track), Karauli in Sessions Case No.4/2004 (State Vs. Kesariya & Ors.) thereby, convicted & sentenced the accused in the following manner:-
Accused-appellant Bharat Lal was convicted for u/Ss.302 & 323 IPC & acquitted from offence u/Ss.148 & 324 IPC giving him benefit of doubt. He was sentenced to life imprisonment for offence u/S.302 IPC with a fine of Rs.3,000/-, in default thereof, he was sentenced to further undergo simple imprisonment for two months and was additionally sentenced for simple imprisonment of one year for offence u/S.323 IPC. Both the sentences were directed to run concurrently. His period of police custody w.e.f. 15/12/2002 to 19/12/2002 and period of judicial custody w.e.f. 20/12/2002 to 27/09/2006 was directed to be merged in the originally awarded sentence.
Accused Kesariya was convicted for u/Ss.324 & 323 IPC & acquitted from offence u/Ss.148 & 302 IPC giving him benefit of doubt. He was released on probation u/S.4(1) of the Probation of Offenders Act considering that he is 70 years of age upon his furnishing a personal bond in the sum of Rs.2,000/- with the surety in the like amount with the stipulation to maintain peace and be of good behaviour and shall not repeat the similar offence in future and shall appear before the court as when directed.
Accused-Smt.Dholi @Mewa, Battilal, Ramsahay, Smt.Narvada & Smt.Mausam were convicted for offence u/S.323 IPC & acquitted from offence u/Ss.302/149, 324/149 & 148 IPC giving them benefit of doubt. They were released on probation u/S.4(1) of the Probation of Offenders Act considering that Smt.Dholi @Mewa, Smt.Narvada & Smt.Mausam are women upon their furnishing a personal bond in the sum of Rs.2,000/- with the surety in the like amount with the stipulation to maintain peace and be of good behaviour and shall not repeat the similar offence in future and shall appear before the court as when directed.
Accused-Kesariya, Smt.Dholi @Mewa, Battilal, Ramsahay, Smt.Narvada & Smt.Mausam were additionally directed to pay compensation of Rs.1,000/- each u/S.5(1)(A) of the Probation of Offenders Act and on deposition of the same, Rs.2500/- was directed to be paid to complainant-Dharam Singh, Rs.1500/- to Keshanti, Rs.1500/- to Jailal and Rs.500/- to Ravi.
2) While D.B.Criminal Appeal No.1079/2006 has been filed by appellant-Bharat Lal against his conviction u/Ss.302 & 323 IPC and sentence of life imprisonment, D.B.Criminal Appeal No.1608/2007 upon grant of leave has been allowed to be filed by the State only against acquittal of accused Kesariya, Battilal and Ramsahay of the charges for offence u/Ss.148, 323, 324, 324/149, 302 & 302/149 IPC. D.B. Criminal Revision Petition No.1277/2006 has been filed by complainant-Dharam Singh Meena against acquittal of accused-appellant from offence u/Ss.148 & 324 IPC, acquittal of accused-Kesariya from offence u/Ss.148 & 302 IPC and acquittal of accused-Smt.Dholi @Mewa, Battilal, Ramsahay, Smt.Narvada and Smt.Mausam from offence u/Ss.302/149, 324/149 & 148 IPC, which revision was also admitted only against accused Kesariya, Battilal & Ramsahay.
3) Brief facts of the case are that first information report bearing FIR No.183/2002 was registered with Police Station Kudgaon on Parcha Bayan (Exh.P.1) of injured-Dharam Singh Meena (PW1) inter-alia stating that at 8.30-9.00 a.m. on 13/12/2002, he, Munshi (his brother) and his uncle Jailal were watering their crops of grain in the agriculture field from the diesel pump installed at the well. Suddenly, Kesariya, who was armed with gandasi, came there and required Munshi to switch-off the motor-pump, which he did. Soon thereafter, Brijlal armed with dharia, Bharat Lal armed with dharia, Ramsahay @Ramlal armed with gandasi, Battilal armed with danda, Mausam armed with pharsa and Narvada armed with lathi came there. They encircled the members of the complainant-party. Accused-Kesariya inflicted gandasi blow on the head of complainant-Dharam Singh Meena, Brijlal inflicted dharia blow on his head, which he received on shoulder, Mausam inflicted pharsa blow from reverse side at the back of the complainant and Battilal inflicted lathi blow on the back of the complainant. When Munshi, uncle Jailal and wife Keshanti came to his rescue, they were also beaten by the accused. Accused-appellant Bharat Lal inflicted dharia blow on the head of Munshi, who fell down. Then, accused Mausam inflicted pharsa blow from reverse side on his person. Narvada inflicted lathi blow, Battilal inflicted lathi blow and Dholi inflicted danda blow, resultantly, Munshi received severe injuries. Keshanti also received injuries. Ramsahay inflicted gandasi blow on the head of Keshanti, Battilal inflicted lathi blow on the elbow of Keshanti, Bharat Lal inflicted gandasi blow from reverse side on her shoulder. When Jailal came to their rescue, Bharat Lal inflicted dharia blow on his head, Brijlal inflicted blow on his back, Battilal inflicted blows on his fingers and Kesariya caused injuries to the legs of Jailal. When child Ravi S/o Munshi came there, Dholi inflicted danda blow on his head. Accused left Munshi only after considering him to be died. On hearing their hues and cries, Ramraj, Man Singh etc. came to their rescue. The accused thereafter ran towards the forest. Munshi and Jailal fell down on the ground due to the injuries received by them. Condition of Munshi was quite serious and blood was oozing from his head. They took Man Singh, Munshi, Jailal, Keshanti and Ravi to Kudgaon on a camel cart and therefrom, all of them were brought to the hospital at Karauli. Since condition of Munshi was critical, he was referred to the hospital at Jaipur, where he succumbed to his injuries on the following day i.e. on 14/12/2002 at 8.30 a.m. In the FIR, which was registered initially for offence u/Ss.307, 147, 148 IPC, offence of Section 302 IPC was added. The police after investigation, filed challan against seven accused persons, named above. The prosecution examined total twenty five witnesses and exhibited thirty seven documents, whereas defence in support of its case, produced one witness and exhibited eleven documents. Upon conclusion of the trial, the learned trial court convicted and sentenced the accused in the manner stated above.
4) Shri Nishant Sharma, learned counsel for the accused-appellant has argued that the learned trial court erred in convicting the accused-appellant Bharat Lal for offence u/Ss.302 & 323 IPC. Even the prosecution utterly failed to prove that the appellant alone was responsible for the death of Munshi. Learned trial court has relied on statements of such witnesses, which carry many contradictions. Even as per parcha bayan of complainant-Dharam Singh Meena (PW1), star witness of the prosecution, it is evident that no specific overt act has been assigned to any one of the accused. However, when complainant-Dharam Singh Meena (PW1) appeared in court, he changed entire version and has assigned the blow on the head of deceased-Munshi to the accused-appellant. Credibility of such a witness thus becomes highly doubtful. Trial court has mechanically convicted the accused-appellant Bharat Lal ignoring this important aspect of the matter. Learned trial court was wholly unjustified in convicting the accused-appellant alone for offence u/Ss.302 & 323 IPC. It was argued that evidence clearly proved that there was previous enmity between the parties. In this respect, reference is made to the statement of complainant-Dharam Singh Meena (PW1) and Keshanti (PW2), who corroborated the fact of previous enmity between the accused-party and complainant-party with regard to the disputed agriculture land, upon which, the incident took place. Learned counsel for the accused-appellant argued that the trial court failed to appreciate that the agriculture field, where the incident took place, did not belong to the complainant-party, a fact, which was proved from evidence of the prosecution witnesses, especially from statement of Jailal (PW12) & Keshanti (PW2), who stated that this agriculture field belongs to Kripal Koli, who gave the land to the complainant-party for cultivation on crop sharing basis. When however Kripal Koli (PW16) was produced as a witness by the prosecution, he stated that he did not know Kesariya or Munshi. He has even denied that he gave the land to the complainant-party for cultivation on crop sharing basis. Therefore, the learned trial court was wholly unjustified in recording the finding that complainant-party was in possession of the disputed land. He was declared hostile. Besides, Jagdish (PW15) has also not supported the prosecution case and has been declared hostile. In regard to other witnesses, It was argued that the entire case of the prosecution is based on the statements of the interested witnesses of the complainant-party, who are close relatives of the deceased. It was argued that no reliance can be placed on evidence of interested/relative witnesses especially when the evidence is not found in conformity with the first version given in the parcha bayan on which basis First Information report was registered.
5) It was argued that trial court did not give much credence to the fact that there was cross-cases between the parties and the fact that three persons received injuries from the accused-side namely; Kesariya received four injuries, Mausam Bai received five injuries and accused-appellant Bharat Lal himself received three injuries, some of which were on the vital parts of their body. Prosecution has failed to give any explanation with regard to these injuries of three persons of the accused-party. A cross-case was registered against the members of the complainant-party by the accused-party in which cognizance was taken against the complainant-party. Learned counsel for the appellant referred to the statement of Rajesh Yadav (PW22), who also admitted regarding cross-case having been registered against the members of the complainant-party. Fact that injuries have been received on the side of the accused-party goes to show that members of the complainant-party were also armed and this is why the learned trial court has given a finding that it was a case of free-fight and held that each accused is responsible for his own act, this being an incident of sudden fighting.
6) Shri Nishant Sharma, learned counsel for the accused-appellant has also cited the statement of defence-witness Bharosi (DW1), who has stated that Ramswaroop had taken a loan of Rs.16,000/- from Battilal and Kesariya about fourteen years ago in his presence and had pledged the disputed agriculture field with him. When he could not repay the loan, he put Battilal and Kesariya in possession of the agriculture field. Since then, Battilal and Kesariya were cultivating the land of the share of Ramswaroop in the disputed agriculture field, which was of 2 bighas. It was argued that this fact has been proved that the possession of the disputed land was with the accused-party. It was further argued that the complainant was simple asked to leave the agriculture field, which belonged to them.
7) Shri Nishant Sharma, learned counsel for the appellant has argued that once the trial court held that incident had taken place suddenly resulting into free-fight and on that basis acquitted all other accused of the charge from offence u/S.302 IPC, there was no justification for the trial court in convicting the accused-appellant Bharat Lal alone for offence u/Ss.302 & 323 IPC. It is submitted that the present case squarely falls within Exception 4 of Section 300 IPC, which inter-alia provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Learned counsel submitted that the fact that there was only one injury on the head and accused-appellant did not repeat injury, clearly proves that the he did not take any undue advantage of the situation, therefore this case should fall within the purview of Exception 4 of Section 300 IPC and offence of the accused-appellant at best would be culpable homicide not amounting to murder. Learned counsel for the accused-appellant has on that basis made an alternative argument that offence of the appellant should be altered from Section 302 IPC to offence u/S.304 Part-I IPC and appellant may be sentenced to the period already undergone by him.
8) No one has appeared on behalf of the complainant-Dharam Singh Meena.
9) However, Shri Javed Choudhary, learned Public Prosecutor has opposed the appeal filed by accused-appellant-Bharat Lal and also pressed for setting-aside the acquittal of three co-accused Kesariya, Battilal & Ramsahay in criminal appeal filed by the State. Learned Public Prosecutor has argued that mere fact that some of the witnesses happened to the relatives of the deceased, does not make their testimony untrustworthy. Those witnesses have stood the scrutiny during cross-examination and have not given two versions of the incident. It is denied that Dharam Singh Meena (PW1) has given a different version in the Parcha Bayan/FIR (Exh.P.1) with regard to head injury of Munshi. In Parcha Bayan also, he has made a similar allegation. Learned Public Prosecutor submitted that complainant-Dharam Singh Meena (PW1) in his statement has categorically stated that it was Bharat Lal, who by sharp side of dharia inflicted a blow on the head of deceased-Munshi. Apart from this, he (this witness) has also stated regarding Kesariya that he inflicted a gandasi blow on his head and Ramsahay inflicted a gandasi blow on the left side of the ribs of the deceased.
10) This Court granted leave to the State to file appeal against acquittal of three accused namely; Kesariya, Battilal and Ramsahay. In this connection, learned Public Prosecutor also referred to the statement of Keshanti (PW2), who stated that Kesariya inflicted a gandasi blow on the head of Dharam Singh Meena, Brijlal inflicted gandasi blow on his shoulder and Ramsahay and Bharat Lal inflicted lathi blow at his back. Then, this witness has stated that Bharat Lal with the use of dharia inflicted blow on the person of deceased-Munshi, Brijlal, Ramsahay, Kesariya, Mausam and Dholi inflicted blows on his ribs. Therefore, there is categorical evidence against all these four if not against other accused.
11) Shri Javed Choudhary, learned Public Prosecutor argued that Man Singh (PW11) is an independent witness. He has also stated that it was Bharat Lal, who inflicted a dharia blow on the head of deceased-Munshi, as a result of which, he fell down and thereafter Ramsahay inflicted a gandasi blow on his head. Kesariya inflicted a gandasi blow from reverse side on his ribs, Brijlal inflicted dharia blow from reverse side on his ribs. Kesariya inflicted a gandasi blow on the head of complainant-Dharam Singh and Brijlal inflicted a dharia blow on the shoulder of Dharam Singh. Jailal (PW12) is also an eye-witness, who has categorically stated that it was Bharat Lal, who inflicted a dharia blow on the head of deceased-Munshi. When he fell down, Ramsahay repeated the gandasi blow on his head. Brijlal inflicted a blow on his ribs. Kesariya, Mausam and Battilal also inflicted lathi blows on him. Learned Public Prosecutor submitted that Pankhilal (PW10) has also supported the prosecution story naming the accused-persons as those responsible for the injuries of deceased-Munshi and other members of the complainant-party. Dr.Shri Ram Meena (PW3) and Dr.R.L. Koli (PW4) have proved the injuries in Injury Reports (Exh.P.17 to Exh.P.20) respectively of Keshanti, Ravi, Jailal and Munshi and Dr.N.L. Disaniya (PW20) Medical Jurist has proved the Post-Mortem Report of deceased-Munshi vide Exh.P.31 dated 14/12/2002 and opined that the cause of death of deceased-Munshi is coma due to injury to skull & brain and it is sufficient to cause of death in ordinary course of nature. Injury No.4 is sufficient cause of death in ordinary course of nature and it is ante mortem, in nature.
12) Shri Javed Choudhary, learned Public Prosecutor has argued that recovery of dharia (Exh.P.25) at the instance of accused-appellant Bharat Lal, has been proved by Rajaram (PW14) and Jagdish (PW15), who have also proved Exh.P.27 recovery of gandasi from accused Kesariya. Learned Public Prosecutor further argued that deceased-Munshi had received rib injury and sustained fracture of 7th rib, which fact has been proved from Exh.P.20 proved by Dr.R.L. Koli (PW4). Prosecution witnesses have assigned this injury to co-accused Kesariya and Ramsahay and therefore they should also be convicted for the grievous injury on the person of deceased, who shared common intention with accused-appellant-Bharat Lal and committed offence u/S.302 with other offence u/S.324 IPC. It is, therefore, prayed that the appeal filed by the accused-appellant be dismissed and the appeal filed by the State and revision petition filed by complainant-Dharam Singh Meena be allowed and accused-Kesariya, Smt.Dholi @Mewa, Battilal, Ramsahay, Smt.Narvada and Smt.Mausam be convicted for offence u/Ss.148, 323, 324, 324/149, 302 & 302/149 IPC because all of them had come with pre-meditation and common object to murder Munshi, which fact has been proved by the prosecution in evidence.
13) Having heard learned counsel for the parties, perused the material available on record, we have given our anxious consideration to the rival submissions.
14) The Post-Mortem Report of deceased-Munshi (Exh.P.31) dated 14/12/2002 proved by Medical Jurist Dr.N.L. Disaniya (PW20) clearly shows that it was a homicidal death. Recovery of dharia (Exh.P.25) at the instance of accused-appellant Bharat Lal, has been proved by Rajaram (PW14) and Jagdish (PW15). Fact that fatal injury leading to death of Munshi, has been attributed to accused-appellant Bharat Lal by four eye-witnesses in their statements i.e. Dharam Singh Meena (PW1), Keshanti (PW2), Man Singh (PW11) and Jailal (PW12). Dharam Singh Meena (PW1) is an independent witness, who has also corroborated the version that accused-appellant Bharat Lal inflicted a fatal blow on the head of deceased-Munshi by use of dharia. Evidence has proved that it were accused-party, who had gone to the agriculture field, which was being cultivated by the complainant-party on crop sharing basis. Dharam Singh Meena (PW1) has stated that Kesariya reached the agriculture field armed with gandasi and required the complainant to stop the motor-pump, which he did. Keshanti (PW2) has categorically stated that on being required by Kesariya, deceased-Munshi switched-off the motor-pump. Soon thereafter, all other accused followed Kesariya and came there with different arms referred to supra. Statements of Dharam Singh Meena (PW1) and Keshanti (PW2) have been corroborated by Man Singh (PW11) and Jailal (PW12).
15) These statements thus clearly prove that the (1) disputed agriculture field at the material point of time was being cultivated by the complainant-party, whereas accused-party were claiming it to be their own, (2) accused-party was aggressor, who came there with variety of weapons, (3) Kesariya, who first reached there, called upon the deceased-Munshi to switch-off the motor-pump and (4) deceased-Munshi switched-off the motor-pump. This can therefore, be safely concluded on the basis of the evidence that accused-party was aggressor and that deceased-Munshi immediately on being required by Kesariya, switched-off the motor-pump, thus there was no provocation available to any of the accused especially to accused-appellant Bharat Lal for directly inflicting blow on the head of deceased-Munshi by use of sharp edged weapon dharia. Statements of prosecution-witnesses are consistent that it was Bharat Lal, who inflicted dharia blow on the head of deceased. The alleged contradictions in the version of prosecution-witnesses, especially of Dharam Singh Meena (PW1) with Parcha Bayan/FIR (Exh.P.1), therefore would not be of much help to the accused. Brijlal, the informant although additionally named other accused on same allegations but version given in the first information report in all circumstances cannot be treated as the last word. It is not the maker of the parcha bayan alone attributing the fatal head injury to accused-appellant Bharat Lal, but other three witnesses namely; Keshanti (PW2), Man Singh (PW11) and Jailal (PW12) have also proved this fact. Therefore, mere fact that Jagdish (PW15) and Kripal Koli (PW16), who were cited as eye-witnesses, have turned hostile, does not make any serious dent to the prosecution case especially when allegation has been corroborated by recovery of dharia (Exh.P.25) at the instance of accused-appellant Bharat Lal, which is proved by Rajaram (PW14) and Jagdish (PW15). In these circumstances, the trial court was persuaded to hold that it was a case of free-fight in that while Munshi, apart from fatal injury, received three abrasions (Exh.P.20), Dharam Singh Meena received four injuries, two incised wounds, one abrasion and one simple injury (Exh.P.2) and Keshanti (PW2) received five injuries by blunt weapon and all of which were found to be simple lacerated founds (Exh.P.17). Ravi received one lacerated wound, which was proved vide Exh.P.18. Jailal received three injuries by blunt weapon, two of which were abrasions and one is lacerated wound, which has been proved vide Exh.P.19. As against this, from the side of the accused-party, Kesariya received four simple injuries, one of which was on the head by blunt weapon, Mausam received five injuries, one of which was again by blunt weapon and simple injury, vide injury report Exh.D.1. Accused-appellant Bharat Lal received three injuries, one of which was on his head to be simple by blunt weapon. Learned trial court thus concluded that it was a case of free-fight, where both the parties used arms against each other and therefore despite accused persons being more than five in number, they were held to have not formed an unlawful assembly and each one of them was held liable for his/her individual act. It is for this reason; learned trial court has convicted the accused-appellant Bharat Lal alone for offence u/Ss.302 & 323 IPC.
16) Looking to the number and nature of injuries and their location, we are not inclined to interfere with the findings recorded and conclusions arrived at by the learned trial court. We are rather inclined to uphold those findings/conclusions for the reason that evidence of all the prosecution-witnesses, especially four witnesses namely; Dharam Singh Meena (PW1), Keshanti (PW2), Man Singh (PW11) & Jailal (PW12) was that except accused-appellant Bharat Lal, no other accused used that much of force while causing injuries to different members of the complainant-party. Intensity of force used by accused-appellant Bharat Lal while inflicting injuries on the head of deceased-Munshi with dharia was so much that it resulted into incised defused wound in the size of 12x2 bone deep on occipital bone resulting in fracture of both parietal regions of skull with clear cut sharp and well defined margins. On x-ray examination, following opinion was given by Dr.N.L. Disaniya (PW20) Medical Jurist in the Post-Mortem Report of deceased Munshi vide Exh.P.31 dated 14/12/2002:-
coma due to injury to skull & brain and it is sufficient to cause of death in ordinary course of nature. Injury No.4 is sufficient cause of death in ordinary course of nature and it is ante mortem, in nature.
17) Dr.N.L. Disaniya-Medical Jurist when appeared as PW20 in the trial court has proved that it was this ante mortem fatal injury No.4, which has proved fatal and that deceased died due to injury to skull & brain and it was sufficient to cause death in ordinary course of nature.
18) Contention that since fracture of 7th rib of deceased-Munshi has been assigned to co-accused Kesariya and Ramsahay, therefore they should also be convicted along with accused-appellant Bharat Lal with the aid of Section 324 IPC, if analyzed in the light of the statement of prosecution witnesses becomes difficult to accept. In the first place, common object if there was any, was only to the extent of dispossessing the complainant-party from the disputed agriculture field and it is accused-Bharat Lal alone, who had exceeded that common object and therefore he has been held responsible for individual act of murder of deceased-Munshi thereby committing offence u/S.302 IPC.
19) Secondly, even if we go by prosecution witness Dharam Singh Meena (PW1), where he has stated that when deceased-Munshi fell down, accused Kesariya inflicted gandasi blow from reverse side and accused Brijlal also inflicted a dharia blow from reverse side on him and Ramsahay inflicted a gandasi blow on his ribs, we have to appreciate his statement in the light of the version of other witnesses Keshanti (PW2), who has stated that Brijlal and Ramsahay both have inflicted blows on the ribs of the deceased. Man Singh (PW11) has stated that when Bharat Lal inflicted a dharia blow on the head of deceased-Munshi, he fell down and thereafter Ramsahay inflicted another gandasi blow on his head from sharp side. Kesariya inflicted a gandasi blow on the ribs from reverse side and Brijlal inflicted a dharia blow on his ribs from reverse side. Narvada inflicted lathi blow. Jailal (PW12) has also stated that when deceased-Munshi fell down after receiving head injury at the instance of accused-Bharat Lal, Ramsahay inflicted another gandasi blow on his head and Brijlal inflicted a blow on his ribs, Kesariya, Mausam and Battilal also inflicted lathi blows on his head. Analyzed in the light of the injury report, where only one injury responsible for the fracture of 7th ribs on the left side is found, it becomes evident that these witnesses are exaggerating and are not presenting correct picture. It is, therefore, the learned trial court has on analysis of evidence found it to be a case of free-fight and held each of the accused responsible for their individual act. Accused Kesariya was convicted for offence u/Ss.324 & 323 IPC and other accused for offence u/S.324 IPC, because they were not held to have shared a common object with accused Bharat Lal to murder deceased-Munshi. We do not find any legal infirmity in the approach of the learned trial court.
20) Coming now to the alternative submission that since the learned trial court has given a finding that it was a case of sudden fight/free-fight and on the basis of such a finding, the learned trial court has held all accused liable for their individual act and acquitted all others except Bharat Lal of the charge for offence u/S.302 IPC and the fact that only Kesariya has been convicted for offence u/Ss.324 & 323 IPC and others only for offence u/S.323 IPC, this case should be held to have been covered by Exception 4 of Section 300 IPC, we must observe that there are certain pre-requisite conditions for attributability of this exception, which we are reproducing hereunder for the facility of reference:-
Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
21) The afore extracted Exception 4 of Section 300 IPC can be applied only on satisfying following conditions; namely:-
(1) if the offence is committed without premeditation in a sudden fight, (2) if the offence is committed in the heat of passion upon a sudden quarrel and (3) if the offence is committed without the offender having taken undue advantage or acted in a cruel or unusual manner.
22) Evidence in the present case clearly shows that the accused were the aggressors. They came at the agriculture field with deadly weapons with the common object of dispossessing the complainant-party from the disputed agriculture field and co-accused-Kesariya required deceased-Munshi to switch-off the motor-pump of the Well, which he immediately did. There was thus no provocation to the accused. Very fact that they came with arms, would disprove the claim that there was no pre-medication and that it was a sudden fight and further that the incident took place in a heat of passion upon a sudden quarrel. Exception 4 of Section 300 IPC deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. When the deceased on being required by accused Kesariya, immediately switched-off the motor-pump, there was no case of provocation. While other accused had caused only simple injuries on the person of deceased, members of the complainant-party also received simple injuries. As against this, accused-appellant Bharat Lal inflicted injury in the size of 12x2 bone deep on occipital bone of deceased-Munshi resulting in fracture of both parietal regions of skull with clear cut sharp and well defined margins, leaving no manner of doubt that he had both the requisite intention and knowledge of committing his murder and it was he, who alone was responsible for the murder of deceased-Munshi. The case of the accused-appellant-Bharat Lal cannot be therefore said to fall within Exception 4 of Section 300 IPC.
23) In view of above discussion, the appeal filed by accused-appellant-Bharat Lal fails and is dismissed. The appeal filed by the State of Rajasthan against acquittal of accused-Kesariya, Battilal & Ramsahay and revision petition filed by complainant-Dharam Singh Meena against their acquittal also fail and are accordingly dismissed.
(NISHA GUPTA), J. (MOHAMMAD RAFIQ) J. Anil/24-26
All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum J