Rajasthan High Court - Jaipur
Smt Badani And Ans vs State on 22 September, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Criminal Appeal No.1354/2003 Smt. Badami and Mukesh Vs. State of Rajasthan through Public Prosecutor 2. D.B. Criminal Appeal No.1478/2003 Gariba, Vinod, Ramniwas and Smt. Santi Vs. The State of Rajasthan through the Public Prosecutor Date of Order ::: 22.09.2011 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mr. Justice S.S. Kothari Shri Biri Singh Sinsinwar, Senior Advocate with Shri Rajesh Chaudhary, counsel for appellants in Appeal No.1478/2003 Shri Prem Kumar Sharma, counsel for appellants in Appeal No.1354/2003 Shri J.R. Bijarnia, Public Prosecutor #### //Reportable// By the Court:-
These two appeals seek to challenge the judgment of learned Additional Sessions Judge No.1 (Fast Track), Dholpur, dated 10th September, 2003, by which the accused-appellants, namely, Gariba, Mukesh, Smt. Badami, Ramniwas, Vinod and Smt. Santi were convicted for offences under Sections 148, 302/149, 341, and were sentenced to undergo life imprisonment and a fine of Rs.500/- each, in default of payment of fine, they were to further undergo imprisonment of one month. For offence under Section 148 IPC, they were sentenced to undergo rigorous imprisonment of one years and for offence under Section 341, IPC they were sentenced to undergo simple imprisonment of one month. All the sentences were ordered to run concurrently.
Facts giving rise to these appeals are that one Hari Singh Son of Shobharam (PW-1), Police Station Basedi, District Dholpur, submitted a written report to S.H.O., Police Station, Basedi alleging that Gariba and his family members had earlier committed murder of his father Shobharam and since then he and other accused were having ememity with them. When on 05.06.1998 complainant and others were collecting contribution of two rupees from each house for repair of the hand-pump, accused Mukesh, Gariba, Vinod, Ramniwas, armed with 'lathis' came there and did not allow them to get the hand-pump repaired. They removed the top/cover of the hand-pump. Both the parties reported the matter to the police. Some arrests were made from both the sides under Section 151 Cr.P.C. Later on they were released on bail bonds. Brother of informant Dharamjeet requested Vinod and Mukesh S/o Gariba, on the following day i.e. 07.06.1998 at about 6.00 AM to return the top of the hand-pump so that it could be got repaired because they were facing hardship. Suddenly, Harvilas S/o Hansa, Mukesh S/o Harvilas, Vinod, Dhara, Gariba, Badami, Ramniwas, Kamlesh, Santi, all by caste Jatav, encircled Dharamjeet. They were armed with 'lathis', 'ballam', chain, stones, 'mongaris'. They all started abusing Dharamjeet. Then they gave him beating and pulled him out towards the house of Gyan Singh. Ramniwas had 'lathi', Vinod had 'ballam', Mukesh had chain and all females had 'mongari'. They subjected Dharamjeet to severe beating. The informant tried to intervene. When he raised hue and cry, Ganga Devi W/o Janak Singh, Maya W/o Dharamjeet, Ramdulari W/o Ram Prasad, Laxmi Narain, Ramdas, Janak Singh, Gujwa, Om Prakash came there. These people also tried to intervene. In doing so, Ganga Devi, Ramdulari, Maya, Laxmi Narain, Ramdas, Janak Singh received number of injuries on their persons by 'lathis', stones, 'ballam' and 'mongari'. Dharamjeet died on the spot. Action be taken against the guilty.
On receipt of aforesaid written report, a regular first information report for offence under Sections 147, 148, 149, 323, 341, 302 of the IPC was chalked out and investigation commenced. Challan was filed against as many as nine accused for offence under Sections 147, 148, 149, 302, 323 and 341 IPC. Accused appellants were committed to the Court of Sessions, Dholpur to face trial. The case was made over to the court of Additional Sessions Judge (Fast Track) No.1, Dholpur, who, by the impugned judgment, convicted and sentenced six accused-appellants as afore-stated, however acquitted them of offence under Sections 323 and 323/149 IPC. Accused Harvilas, Dharasingh, Smt. Kamlesh were acquitted of the charges under Sections 148, 302, 302/149, 323/149, 341 and 341/149. Hence these two appeals.
Shri Biri Singh, learned Senior Counsel, appearing on behalf of accused-appellants Gariba, Vinod, Ramniwas and Smt. Santi, in Criminal Appeal No.1478/2003, has argued that the dispute originally arose between accused Mukesh and complainant party on the question of repair of hand-pump. Appellants Gariba, his wife and sons have been falsely implicated in the case only because a criminal case was registered against accused-appellant Gariba for death of Shobharam, father of complainant Hari Singh, in which he was acquitted by the court. This time, the dispute was on the partition of family property and especially about a shop. The trial court has erred in law in not appreciating that there was no evidence as far as accused-appellants are concerned. Neither any blood marks were found near hand-pump nor was any other incriminating evidence was found there. Dead body and blood stains were found in Chhappar of Gyan Singh, who has got nothing to do with either of the parties and is an independent person. It is a mystery how deceased reached there, because the incident had started near hand-pump. Allegation that deceased was dragged to 'chhappar'/house of Gyan Singh, by accused, cannot be believed. There is no evidence of dragging either on the earth or blood drops on the ground to substantiate this allegation. Genesis of the incident has thus been suppressed from the court. Allegation against accused Vinod was that he was armed with sphere whereas there was no corroboration from the evidence that he had sphere in his hand which could connect the accused with the crime. It was argued that even according to PW-7 Dr. Bharat Singh Meena, none of those injuries which have been received by deceased Dharamjeet, as per his postmortem-report (Exhibit P-24), could have been caused by 'ballam'. He has therefore been falsely implicated in the matter. Learned trial court has acquitted three accused on the basis of same set of evidence therefore evidence of the prosecution has been held to be partly unreliable. The State has not filed any appeal against their acquittal therefore it cannot now seek to rely on the testimony of those witnesses who have been partially disbelieved by the trial court. The same evidence cannot be made basis for conviction of accused-appellants because there is no independent corroboration. The allegation that accused appellant Gariba and his family helped co-accused Mukesh and Badami and their family in dispute of complainant because of earlier criminal case is totally false, vague and uncertain. They were acquitted in that case twenty years ago. That incident cannot be even remotely connected with the present case to be cited as motive for the present case.
It was argued that what was the common object of the unlawful assembly has not been established by evidence. This has to be done by evidence with specific overt act of the accused, which has not been proved in this case. The weapon which has been assigned to accused Ramniwas in the first information report was 'lathi' whereas in court statements, various witnesses have stated that he was having a 'katta' and stood as a guard at the entrance of the house of Gyani and did not allow anyone to enter the said house to rescue the Dharamjeet.
It was argued that the dispute of the previous day about the hand-pump was between the family of complainant and accused Harvilas. While on the one hand Harvilas and his son Mukesh were detained in police custody under Section 151 Cr.P.C. and on the other hand, Omprakash and informant Hari Singh were detained under Section 151 Cr.P.C. Neither accused Gariba nor his family members were detained for that reason. Learned counsel in this connection referred to the statement of PW-1 Harisingh, the informant, and argued that this witness admitted that family of the accused appellant Gariba and Murli were not in any manner related to his family. PW-5 Machhla, who happens to be the daughter-in-law of Gyani, to whose house the deceased is alleged to have been dragged by the accused, who is an independent witness, has not supported the prosecution case and stated that she had gone to answer the call of nature and therefore she did not witness the incident. When she came back she saw Badami and Mukesh running from the place of incident. She thus did not see Gariba and any of his family members. Learned counsel argued that vest of the deceased was recovered vide Exhibit P-11 at the instance of accused Vinod and was sent to forensic science laboratory for examination of the blood contains as article 'G'. The FSL in its report (Exhibit P-48) has given a finding that the result remained inconclusive. Thus, no definite opinion has been expressed by the FSL. The accused-appellant Vinod therefore cannot be connected with the crime, which even otherwise has not been proved because according to statement of PW-1 Hari Singh, accused Vinod had inflicted a 'ballam' from the reverse side, which cannot be accepted. Normally, if an accused was having 'ballam', which was a pointed weapon, he would have caused a stab wound rather using the same from reverse side as merely a 'lathi'. The recovery of 'mongari' vide Exhibit P-7 at the instance of accused-appellant Santi also does not connect her with the crime because this 'mongari' is not even blood stained. Similarly Exhibit P-8, the recovery memo of one weapon fanta, recovered at the instance of accused-appellant Gariba, even if has been found containing human blood as per the FSL report (Exhibit P-48), cannot with certainty connect the use of that fanta for the alleged crime because the blood group contained thereon has not been ascertained. In the FIR as well as statements under Section 161 Cr.P.C. however it has not been alleged that the accused-appellant Gariba was having 'fanta' in his hand. The learned counsel referred to the statement of PW-2 Bachchu Singh and argued that this witness has stated that the dispute between complainant and family of co-accused Mukesh and Badami, was on the partition of family property and especially a shop. Allegation against Harvilas was that Harvilas did not give the share to Dharamjeet in the shop. This witness has stated that Dharamjeet was not given beating by 'mongari' nor did he receive any injury by chain or iron rod. He even stated that he did not give any statement that he was beaten by 'ballam' or 'fanta'. Dharamjeet was subjected to beating by use of 'lathi' outside the house of Gyani only.
Shri Biri Singh Sinsinwar, learned senior counsel argued that merely because there is no evidence to specifically prove as to which accused actually caused fatal injury on the person of deceased, learned trial court was not justified in recording a finding in Para 33 of the judgment with respect to all the accused appellants that since they all went inside the house of Gyani, therefore, they were all responsible for his death. PW-17 Tej Singh, who is an independent witness, has given a completely different story. He has stated that the dispute started only between Dharamjeet and Mukesh. He noticed this fact when he was going to fetch water. While coming back again, he noticed both of them fighting at the same place. House of Mukesh was situated about 50 feet away from the house of Gariba. PW-10 Ram Prasad has stated that after the incident all accused fled from their houses. The house of accused was lying open. Recovery was made from their house after they fled therefrom. Learned counsel argued that in these circumstances, it was very easy for the police or for any one else, to plant any weapon inside the house and attribute the same to the accused. It was argued that while PW-1 Hari Singh has stated that all the accused were arrested on the same day, the arrest of the accused appellants was shown belatedly, which would be evident from their arrest memo, within one hour, whereas according to their arrest memos (Exhibit P-17, P-18, P-19 and P-20) their arrests were shown on 07.06.1998. It is therefore prayed that the impugned judgment and order of learned trial court may be set aside and accused-appellants be set at liberty.
Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellnats, in support of his arguments, relied on the judgments in Akbar Sheikh and Others Vs. State of West Bengal and Others 2009 VII AD (SC) 46, Dharam Singh and Others Vs. State of Punjab 1993 SCC (Cri) 1059, Kuldip Yadav and Others Vs. Stae of Bihar JT 2011 (4) SC 436, Noor @ Noordhin Vs. State of Karnataka 2007 Cr.L.R. (SC) 444, Maranadu and Another Vs. State by Inspector of Plice, Tamil Nadu 2008(4) crimes 16 (SC), Muluwa Vs. The State of Madhya Pradesh (1976) 1 SCC 37 and Muluwa Shri P.K. Sharma, learned counsel for appellants, namely, Badami and Mukesh, argued that recovery of stone and cycle-chain from accused Mukesh vide Exhibit P-6 on 10.06.1998, is totally false. It cannot be, in normal human conduct, believed that an accused would conceal even a stone, which has been used in offence, at his residence. Recovery of cycle-chain was also false and cannot be used as circumstance against accused Mukesh, because when recovered articles were produced before the court, the cycle-chain was missing. PW-15 Ghanshyam Sharma, the Investigating officer, in his statement in the court, stated that the chain was not recovered by him. Even otherwise, learned counsel for the appellants submitted that no injury was sustained by deceased Dharamjeet by cycle-chain, which would be evident from the postmortem-report (Exhibit P-24). Referring to statement of PW-7 Dr. Bharat Singh Meena, learned counsel for accused-appellants argued that this witness neither proved in his statement nor in the postmortem-report that injuries were antemortem in nature or sufficient in the ordinary course of nature to cause death. PW-10 Ram Prasad, who is witness of recovery, has not supported the recovery of chain and stone and therefore the recovery becomes highly doubtful. Statement of PW-10 cannot be believed in support of the recovery because he stated that the police came to their village three days after the incident, along-with all accused including Badami and Mukesh, at whose instance recovery of stone and mongaris was made. He stated that recovery-memo (Exhibit P-6) contains his signature. It is therefore argued that the prosecution witnesses have highly exaggerated the incident and made over implication. Those witnesses have been partly disbelieved by the learned trial court against accused Harvilas, Dhara and Kamlesh, who have been acquitted. It would not be therefore safe to uphold the conviction of present accused-appellants on such partly disbelieved testimony of prosecution witnesses.
It was argued that PW-1 Hari Singh, when appeared as a witness in the court, contradictorily stated to what is stated in the FIR or the statement recorded under Section 161 Cr.P.C. In fact his statement indicates that the first information report was registered after the injury report of the injured was prepared. He did not assign the weapons to the accused what he mentioned in the first information report. For example, in the FIR he alleged that Mukesh had chain whereas in the court statement he stated that Mukesh had used stone and chain as weapons of offence. This witness has not assigned any specific overt act to accused Badami. He has stated that the deceased was initially subjected to beating at the chowk and thereafter in the house of Gyani. PW-2 Bachchu Singh, in his statement, has made a general allegation of beating against all accused Mukesh, Harvilas, Badami, Gariba, Vinod, Ramniwas, Dhara, Santi, Kamlesh, who were armed with various weapons; three of whom, namely, Harvilas, Dhara and Kamlesh have been acquitted by learned trial court. He then states that these accused dragged deceased Dharamjeet to the house of Gyani where accused Gariba, Dhara, Ramniwas, Santi, Harvilas and Badami subjected him to beating. Thus, according to these witnesses, accused Gariba, Dhara, Ramniwas, Santi, Harvilas and Badami subjected the deceased to beating inside the house of Gyani. Out of them, two accused, namely, Harvilas and Dhara were acquitted by learned trial court. Learned counsel therefore argued that accused Mukesh was not named by this witness as one, who gave beating to deceased Dharamjeet inside the house. Taking that into account, no difference can be made between the case of accused Dhara and Harvilas whom he named as those who went inside the house and gave beating to the deceased and that of accused-appellant Badami who also went with them. Referring to his cross-examination, learned counsel argued that Dharamjeet did not receive any injury from chain and that he saw iron rods in the hands of Mukesh, which is a third weapon assigned to him. Learned counsel argued that PW-4 Janak Singh has also been partly disbelieved by learned trial court. This witness for the first time in the court has assigned 'katta' to co-accused Ramniwas, which is entirely a new story. In this connection, learned counsel referred to relevant discussion made at Page 34 and 35 of impugned judgment by learned trial court. PW-11 Ramdulari, in her cross-examination, has stated that a fire with 'katta' was opened on the head of deceased Dharamjeet, which has no corroboration from the medical evidence. In fact, in the cross-examination, she stated that she was not aware as to who opened the fire with 'katta', though she denied the suggestion that she did not witness the beating of deceased Dharamjeet by accused persons. Learned counsel has referred to the statement of PW-13 Maya, widow of deceased Dharamjeet. She stated that her husband was initially subjected to beating near the 'chabutra' (platform) and then was dragged to the house of Gyani. Learned counsel also referred to statement of PW-14 Panni, who is uncle of deceased Dharamjeet, and submitted that this witness, when confronted with his statement under Section 161 Cr.P.C., stated that he told the police that accused Mukesh, Badami and Gariba had dragged the deceased to the house of Gyani, while he cannot say why the statement under Section 161 Cr.P.C.(Statement Exhibit D-7) refers that Mukesh hit the deceased on his head with a stone. This witness also stated that Ramniwas had 'katta' but he did not use it. He merely threatened the members of complainant party that if anybody dare to enter the house of Gyani then he would kill.
Shri P.K. Sharma, learned counsel for accused appellants, in support of his arguments, relied on the judgments in Hallu and Others Vs. State of Madhya Pradesh 1974 Cr.L.R. (SC) 697, Madan Lal and Others Vs. State of Rajasthan 2003 (2) R.C.C. 921, Kadma and Another Vs. State of Rajasthan 2011 (2) RCC (Raj.) 387, Jharu and Others Vs. State of Madhya Pradesh AIR 1991 SC 517, State of Orissa Vs. Dubuga Tubud 1989 Crl.L.J. 1566.
On the other hand, Shri J.R. Bijarnia, learned Public Prosecutor, while opposing the appeal and supporting the impugned judgment, argued that the incident in the present case took place at 6.00 AM on 07.06.1998 and the FIR was lodged within one hour at 7.00 AM. All the accused appellants have rightly been convicted with the aid of Section 149 IPC because they formed an unlawful assembly with common object to cause murder of deceased Dharamjeet. Learned Public Prosecutor submitted that minor contradictions and inconsistencies in the statements of prosecution witnesses cannot be blown out of proportion and have to be overlooked.
Learned Public Prosecutor referred to the statement of PW-1 Hari Singh and argued that this witness has categorically stated that all the accused-appellants encircled Dharamjeet, Gariba had 'fanta' and stone, Vinod had sphere, Mukesh had stone, Ramniwas had 'lathi' and females had 'mongaris'. All these persons dragged his brother while beating him with these weapons due to which Dharamjeet died on the spot. In cross-examination this witness has remained unshaken and has named all nine accused, and stated that these persons dragged deceased Dharamjeet to the house of Gyani. Dharamjeet was thus beaten at two places, once, close to the hand-pump and then inside the house of Gyani. Learned Public Prosecutor also referred to the statement of PW-2 and submitted that he too named all nine accused appellants and also assigned various weapons to these accused and has stated that these accused were beating Dharamjeet. While doing so, they dragged him to the house of Gyani Singh. He named six accused Gariba, Dhara, Ramniwas, Santi, Harvilas and Badami, who subjected him to beating inside the house of Gyani. Learned Public Prosecutor submitted that this witness stated that accused Ramniwas had 'katta' in his hand and stood outside the house of Gyani and did not allow anyone from complainant party to enter inside the house. PW-3 Om Prakash has also named all nine accused. He has stated that accused Vinod had 'ballam' in his hand, Gariba had 'fanta', Ramniwas had 'lathi' accused Mukesh had a chain and stones, the female members had 'mongaris'. When he raised hue and cry, accused ran after him. This witness further stated that accused first subjected Dharamjeet to beating outside the chowk, than dragged him to the house of Gyani. He has stated that Gariba had murdered Shobha Ram 25 years ago. He was acquitted by the court of Dholpur. Dharamjeet and Harvilas had enmity on the dispute on partition of shop. This witness has proved site plan Exhibit P-3, recovery of stone and chain at the instance of accused Mukesh Exhibit P-6, recovery of 'mongari' at the instance of accused Santi vide Exhibit P-7, recovery memo of 'fanta' at the instance of accused-appellant Gariba vide Exhibit P-8, recovery of 'mongari' at the instance of Badami vide Exhibit P-10 and recovery of blood stained vest of accused Vinod from his house vide Exhibit P-11.
Learned Public Prosecutor also referred to the statement of PW-4 Janak Singh, son of deceased, and argued that this witness has also named all nine accused and stated that they subjected him beating and then dragged him to the house of Gyani Singh. Ramniwas had 'katta' which he fired at him. He sustained firearm injuries on the finger of right hand and finger of right leg. Due to fear for his life, he could not dare go near the accused to save his father. Gariba had 'fanta', Mukesh was having stone, four female accused had 'mongaris' in their hands. Ramdas, his mother Maya Devi, Ramdulari, and wife Ganga Devi also received injuries in the same incident. Learned Public Prosecutor also referred to the statement of PW-10 Ram Prasad, the brother of deceased, who stated that he was a witness to the recovery of stone from his house at the instance of Mukesh, weapon 'mongari' at the instance of accused Badami, 'fanta' at the instance of accused-appellant Gariba, blood stained vast at the instance of accused Vinod, 'mongari' at the instance of accused Santi.
Shri J.R. Bijrania, learned Public Prosecutor also referred to the statement of PW-11 Ramdulari W/o PW-10 Ram Prasad, who is eye witness, she stated that dispute took place in between Dharamjeet and Mukesh, then Mukesh called other accused. All accused subjected him beating which led to his death. When female members went to intervene, they were also subjected to beating. She received five injuries on her head, legs and ankle. She stated that Dharamjeet has been killed because Gariba had enmity with their family. He had murdered his father-in-law Shobha Ram 25 years ago. Similar statement has been given by PW-13 Maya, who has also stated that initially the dispute took place between Mukesh and Dharamjeet; thereafter all other accused came there. All subjected Dharamjeet to beating. Mukesh had 'fanta' in his hand, Vinod had a 'ballam' like an iron rod, Dhara had 'lathi' with which they gave beating to deceased. Gariba had killed her father-in-law Shobha Ram 20 years ago and due to that enmity they have murdered Dharamjeet. She too has received injuries in this incident.
Learned Public Prosecutor argued that apart from deceased, Ganga Devi, Ramdulari, Maya, Laxmi Narain, Ramdas, Janak Singh, all from complainant side, received injuries in this case. He referred to the statement of PW-14 Panni, who has stated that initially Dharamjeet demanded the top of hand-pump from Gariba, Mukesh and Badami. When they did not give him top, these peoples dragged Dharamjeet, then all other accused joined them and dragged him to the house of Gyani. These persons had 'lathi' stick, 'mongari' and stones in their hands. Mukesh inflicted a 'danda' on deceased Dharamjeet. PW-13 Maya and PW-14 Panni have both stated about rivalry between two families on the dispute of partition of ancestral property especially a shop. Learned Public Prosecutor also referred to the statement of PW-18 Laxmi Narain and argued that this witness stated that the dispute arose when Dharamjeet demanded from Mukesh the top of hand-pump whereupon Mukesh and Badami started abusing him. After some time Mukesh, Badami and Harvilas started him beating. Accused Dhara, Kamlesh, Santi and Gariba also joined them. Mukesh had chain and stone pieces. Gariba had 'fanta'. Vinod had 'ballam' and Ramniwas had 'katta'. All these persons stabbed Dharamjeet beating and dragged him to the house of Gyani. This witness stated that he too received injuries while trying to save Dharamjeet. Mukesh crushed the head of Dharamjeet by stone. Ramniwas opened fire with 'katta' but that did not hit any person. PW-15 Ghanshyam Sharma, the S.H.O., who was investigating officer, has proved the arrest of all the accused and recovery of weapons of offence at the instance of accused. All the prosecution witnesses in their cross-examination remained unshaken. The FSL report has proved that blood stained soil, heirs of deceased, vast, underwear and 'safi' of the deceased; stone and fanta that were recovered at the instance of accused, all were found with B group but however in fact the underwear and safi of deceased were found to be stained with A group. This clearly proved the guilt of the accused appellant connected with the crime. Learned Public Prosecutor argued that to establish membership of unlawful assembly, it is not necessary that overt act of every accused has to be established. In this regard, learned Public Prosecutor relied on the judgment of the Supreme Court in Mahmood and Another Vs. State of Uttar Pradesh (2007) 14 SCC 16. It was argued that even if oral evidence is not fully corroborated by the medical evidence, yet oral evidence is to be preferred provided it inspires confidence. It was argued that merely because three accused were acquitted by the learned trial court, cannot be a reason to hold that conviction of the accused appellant was not justified. Learned trial court has given reasons why it has acquitted those accused and this was because evidence did not show any specific allegation against any of those accused. Learned Public Prosecutor has relied on the judgments of the Supreme Court in State of Uttar Pradesh Vs. Mangal Singh and Others - (2009) 12 SCC 306. It is therefore prayed that the appeal be dismissed.
We have given our thoughtful consideration to rival submissions and also perused the material on record.
First version that was disclosed in the written report submitted within one which to the S.H.O., by PW-1 Hari Singh alleged that the deceased Dharamjeet demanded the top of hand-pump from accused Vinod and Mukesh, Harvilas, Mukesh, his son Mukesh, Ramniwas, Vinod and Hira, Gariba, Badami, Kamlesh, Santi, who were all having 'lathi', 'ballam', chain, stones, 'mongaris', then they started abusing Dharamjeet. They encircled him. While beating him. They dragged him to the house of Gyani Singh. Then what is stated in the written report, is that Ramniwas had 'lathi', Vinod had 'ballam', Mukesh had chain and the female accused had 'mongaris'. They all started beating Dharamjeet and members of the complainant party Ganga Devi, Ramdulari, Maya, Laxmi Narain, Ramdas, Janak Singh received number of injuries on their persons by 'lathis', stones, 'ballam' and 'mongari'. PW-1 Hari Singh appeared in the court as a witness and elaborated the role of the accused appellants in his testimony before the court. He has stated that Vinod had sphere, Mukesh had stone and also chain, Ramniwas had a 'lathi' and other female accused had 'mongaris' in their hands.
Statements of all aforesaid prosecution witnesses are considered in the light of the arguments made by learned counsel for appellants, indicate that though the chain was said to have been recovered at the instance of accused Mukesh vide Exhibit P-6 but when recovered articles were produced in the court, the chain was not found. Learned trial court in Para 44 of the judgment held that neither recovery of chain is proved nor 'ballam' or iron rod were recovered, which were alleged by all the witnesses. Recovery of even 'katta', which was subsequently assigned to accused Ramniwas by witnesses in the court statements, has not been made. It thus clearly shows an attempt on the part of prosecution witnesses to exaggerate the matter to ensure implication of so many members of accused party for the obvious reason of their dispute and old enmity, but, at the same time, the court has to undertake the exercise of separating the truth from falsehood by applying the principle 'falsus in uno falsus in omnibus'. Already the learned trial court has undertaken that exercise when it did not believe the prosecution witnesses and acquitted the accused Dhara Singh S/o Gariba, aged 18 years, Harvilas S/o Hansa, aged 50 years, and Kamlesh W/o Ramniwas, aged 25 years. PW-2 Bachchu Singh, another eye witness, stated that when contribution of Rs.2/- was collected from each members for getting the hand-pump repaired, accused Gariba and Mukesh refused to give the same. Accused Mukesh and Vinod removed the top of the hand-pump. This created tension between the parties and members of both the groups were detained in jail under Section 151 Cr.P.C. They were released from Jail on 6th of June and incident took place on 7th June, 1998. This witness has stated that he saw accused Badami, Mukesh, Harvilas, Gariba, Vinod, Ramniwas, Dhara, Kamlesh and Santi, were armed with 'lathi', chain, 'mongaris', 'ballam', 'fanta'. They were beating Dharamjeet, and then they dragged him towards the house of Gyani. This witness then named only six accused as those who subjected Dharmajeet to beating inside the house of Gyani, namely, accused Gariba, Dhara, Ramniwas, Santi, Harvilas and Badami. Out of these six, accused Dhara and Harvilas have been acquitted and accused Kamlesh, named earlier by him, has also been acquitted. He, in his cross-examination, stated that Ramniwas had a 'katta' with which he threatened the members of complainant party that if anyone entered the house of Gyani, he would kill him, but, in the written report lodged by PW-1 Hari Singh, there is no such allegation imposed against accused Ramniwas that he had a 'katta' in his hand, instead, actually he was assigned 'lathi', in the written report. PW-3 Om Prakash has also stated that initially dispute took place between Dharamjeet on one hand and Mukesh and Vinod on the other, who had removed the top of the hand-pump without which the hand-pump could not be operated. When Dharamjeet demanded cover of the hand-pump from Mukesh, then accused Gariba, Ramniwas, Dhara, Kamlesh, Santi, Harvilas, Badami and Mukesh suddenly attached him. This witness also assigned 'lathi' in the hands of Ramniwas, chain in the hands of Mukesh, 'fanta' in the hands of Gariba and 'ballam' in the hands of Vinod. He has stated that Shobha Ram, father of deceased Dharamjeet, was murdered 25 years ago, for which offence Gariba was convicted. This witness does not assign any specific overt act to any of the accused but has made omnibus statement about involvement of all the accused and has generally stated that all female accused had 'mongaris' in their hands. He has not assigned any specific overt act to accused Badami. PW-4 Janak Singh has been disbelieved by the learned trial court itself. This witness has stated that he had no knowledge as to which accused caused which injury on the person of deceased Dharamjeet. He even stated that learned trial court observed that this witness also exaggerated his statement. This witness too has he stated that accused Ramniwas had opened fire with 'katta', which hit his fingers of right hand and that of right leg. Due to fear of 'katta', he could not dare to enter the house of Gyani to save his father Dharamjeet. The injury report of PW-4 Janak Singh (Exhibit P-25) does not corroborate his version about the firearm injuries. He sustained three injuries, two of which were laceration at right ring finger and right leg and one was haematoma at occipital reason. No injured received firearm injury as would be evident from the statement of PW-7 Dr. Bharat Singh Meena. There is thus definite trend in the cross-examination of statements of these witnesses to show the involvement of Ramniwas with a firearm, whereas neither firearm has been recovered nor any members of complainant party received any firearm injury. PW-11 Ramdulari D/o Ramprasad, younger brother of deceased, has also appeared as an eye witness and stated that initially dispute arose between deceased Dharamjeet and accused Mukesh. Thereafter accused Mukesh called other accused persons. Mukesh, Harvilas, Badami, Gariba, Vinod, Santi and Kamlesh murdered Dharamjeet. Badami and Santi inflicted 'mongari' blow on deceased Dharamjeet. This witness then stated that Dharamjeet was murdered by 'katta', namely, a firearm. Then she stated that he was beaten with 'fanta', a piece of wood. Then this witness stated that the deceased was hit with iron rods at least ten to twenty times. Then she stated that all accused hit the deceased with stones on the head but in further cross-examination she has clarified that one of the accused had iron rod, one had a chain, one had 'fanta', one had a 'katta' and one had a 'lathi' and others hand 'mongaris', but she could not say as to who opened fire by 'katta'.
PW-13 Maya, widow of deceased Dharamjeet, stated that her husband demanded top of hand-pump from accused Mukesh and Badami. Mukesh threw his shoe on the ground from reverse side and challenged the deceased that had he courage he should show. Then accused Mukesh had altercation with her husband. Thereafter accused Gariba, Vinod, Dhara, Mukesh, Ramniwas, Harvilas, Santi, Badami and Kamlesh came there. All these persons subjected him to give beating. In cross-examination, this witness has stated that there was a dispute with Mukesh and Badami and, not with accused Gariba, Vinod and Ramniwas. Dispute was about a shop, which was persisting for last twenty years. This witness admitted that in murder case of Shobha Ram, accused Gariba and others were acquitted. PW-14 Panni has also stated that dispute initially arose when Dharamjeet, who demanded top of hand-pump from accused Mukesh and Badami. When Dharamjeet insisted, all these persons dragged him to the house of Gyani. He named accused Kamlesh, Dhara, Mukesh, Badami, Ramniwas and Vinod as those who dragged the deceased to the 'kothri' of Gyani and alleged that these accused subjected him to beating with 'lathi', 'danda', 'mongari' and stones. Accused Mukesh hit him by stone. Out of those accused who have been named by this witness as assailants, accused Kamlesh and Dhara have been acquitted by learned trial court. This witness was confronted with his statement under Section 161 Cr.P.C. (Exhibit D-7), which was recorded on the date of the incident, but he stated that he informed the police that Mukesh, Badami and Gariba dragged the deceased Dharamjeet to the house of Gyani and that Mukesh inflicted a blow of stone on the head of deceased Dharamjeet, and why the police has not mentioned, he cannot say. This witness has stated that accused Ramniwas had though 'katta', but he did not use it and only threatened the members of the complainant party while standing as guard outside the house of Gyani and did not allow anyone to enter inside the house. PW-18 Laxmi Narain has also stated that when deceased Dharamjeet demanded the top of hand-pump, accused Mukesh and his mother Badami started abusing him, then accused Badami Mukesh and Harvilas started him beating, and then accused Gariba, Ramniwas, Dhara, Kamlesh, Santi also came there. All of them subjected him beating with 'fanta', 'ballam', 'lathi' and 'sabbal'. The female accused had 'mongaris' in their hands. Accused Mukesh had chain and stone. Accused Gariba had 'fanta', Vinod had 'ballam', Ramniwas had 'katta'. All these persons started beating. Accused Gariba by use of 'fanta' and Vinod by use of 'ballam' inflicted injuries. Accused Gariba inflicted a blow of 'fanta' but accused Vinod inflicted blow of 'ballam' and accused Mukesh had hit head of deceased by a stone, accused Dhara inflicted a 'lathi' blow and accused Ramniwas inflicted a 'katta'. Accused Ramniwas opened fire with 'katta' but it did not hit anyone.
Statements of these witnesses thus clearly show that so far as accused Ramniwas is concerned, despite allegation of opening fire with 'katta' in court statements of some of the witnesses, the first version given in the written report, he was not assigned a 'katta'. Despite the allegation that he opened fire. None of the injured, namely, Janak Singh, Ganga Devi, Maya, Ramdulari, Ramdas, Laxmi Narain and Hari Singh received firearm injury. What is significant to note is that apart from Ramniwas, his father Gariba and his brother Vinod and mother Santi have also been made accused in this very case. Evidence of all these witnesses, if analyzed categorically, gives a specific role to accused Mukesh with whom the dispute initially arose. Deceased had initially an altercation with accused Mukesh, and other accused came there on his call. PW-1 Hari Singh named all the accused with omnibus allegation. He has been subjected to number of contradictions and confronted with number of facts which he made in the statement under Section 161 Cr.P.C. but he could not assign any specific overt act to any accused. PW-2 Bachchu Singh has named nine accused, who went inside the house of Gyani and subjected the deceased to beating. Ultimately this witness named six accused, namely, Gariba, Dhara, Ramniwas, Santi, Harvilas and Badami, who went inside the house of Gyani and subjected the deceased to beating but out of all these six, accused Dhara and Harvilas have been acquitted by learned trial court. PW-3 Om Prakash has though named all accused on omnibus allegation with various weapons. He stated that initially dispute took place of deceased Dharamjeet with accused Mukesh and Badami. Mother of Mukesh was standing at some distance and abusing deceased Dharamjeet. This witness has assigned 'ballam' to accused Vinod as a weapon of offence, 'fanta' to accused Gariba, 'lathi' to accused Ramniwas and chain to accused Mukesh and 'mongaris' to all other accused including Badami and Santi. PW-4 Janak Singh has assigned 'ballam' to accused Vinod, 'fanta' to accused Gariba, stone to accused Mukesh and stated that all female members had 'mongaris'; he further stated that he could not say as to which accused inflicted which injury on the person of deceased Dharamjeet and also he could not say that which accused entered the house of Gyani but when they went inside the house of Gyani, all members of the family of Gyani came out of the house. PW-11 Ramdulari has made allegation against all accused and stated that initially dispute took place between deceased Dharamjeet and accused Mukesh. and thereafter Mukesh called other accused; she has named other accused with various weapons but has stated that accused Badami and Santi had 'mongaris' in their hands. PW-13 Maya has also stated that initially dispute of Dharamjeet took place with accused Mukesh and then other accused came there on his call. She has assigned specific injury to accused Gariba. She has assigned specific overt act to various accused and stated that accused Gariba had inflicted a 'fanta' blow on the person of deceased, Vinod inflicted an iron rod like a 'ballam', Dhara inflicted 'lathi'. This witness has thus assigned specific overt act to accused Gariba and Vinod, but at least not to accused appellants Badami and Santi. In the cross-examination, this witness has elaborated by stating that altercation took place between the accused Mukesh and deceased Dharmajeet, then nine persons started beating him with 'lathi', iron rod and 'ballam'. While making the statement, she has not stated about use of 'mongaris', the weapon that has been assigned to accused appellants Santi and Badami. PW-14 Panni has specifically stated that accused Mukesh hit the head of deceased with stone then he made a general allegation. PW-17 Tej Singh also stated that initially the dispute took place between deceased Dharamjeet and accused Mukesh, when Dharamjeet demanded top of hand-pump from him, then accused Badami came there and started altercation with Dharamjeet. Mukesh went to his house and came back with chain and also accompanied with accused Gariba and Ramniwas. Whereupon accused Gariba, Ramniwas, Santi, Vinod also came there. Accused Vinod had 'ballam'. All three female had 'mongaris' in their hands. Accused Gariba had a 'fanta'. Ramniwas had a 'katta'. These persons dragged the deceased to the house of Gyani. Accused Harvilas had a 'lathi'. They crushed his head by beating him with 'mongaris', stone, 'fanta'. This witness stated that accused Gariba inflicted a 'fanta' blow on the head of deceased. Accused Mukesh hit his head with stone. Accused Santi, Kamlesh and Badami hit him by 'mongaris'. Out of all these three ladies, one Kamlesh has been acquitted by the learned trial court. This witness then further stated that accused Ramniwas had a 'katta' and he ran after him.
Analysis of the evidence of afore-stated eye witnesses thus clearly shows that while an attempt has been made by the prosecution witnesses to exaggerate the role of accused Ramniwas by assigning him a firearm i.e. 'katta'. Neither a 'katta' has been recovered from him nor any injured received firearm injury. Accused Mukesh was one with whom altercation took place of deceased Dharmajeet and he then said to have called other accused. At the same time, for three accused ladies, namely, Badami, Santi and Kamlesh, it appears that accused Badami, mother of accused Mukesh, arrived at the scene of occurrence little than earlier of other accused, but her role that emerges from critical examination of prosecution witnesses is that she started abusing Dharamjeet but then the witnesses have stated that all other accused also came there with two more ladies Santi and Kamlesh. Allegation against all the three ladies was that they were having 'mongaris' in their hands, whereas 'mongaris' cannot be taken as a deadly or lethal weapon. It is simply a wooden stick used for beating the clothes for the purpose of washing. Other accused, namely, Mukesh has been assigned with weapon. At least 2/3rd prosecution witnesses have stated that accused Mukesh hit head of deceased Dharamjeet with heavy stone. The prosecution witnesses stated that accused Gariba had 'fanta' in his hand, Vinod had a 'ballam', Harvilas had 'lathi', Ramniwas had a 'katta', with the use of which they caused murder or injuries on the person of deceased. Role that has been assigned to accusd-appellants, namely, Santi and Badami is identical to that of accused Kamlesh, who has been acquitted by learned trial court on the basis of same sete of evidence. The statement of these very witnesses who have all similarly assigned 'mongari' as a weapon of offence to them with the allegation that she also gave beating to deceased.
It would be therefore highly unsafe to sustain conviction of these three accused because the statements of various prosecution witnesses about their role is not very clear but show the trend of exaggeration. In these circumstances, therefore, the role of at least accused appellants Ramniwas, his mother Santi and that of Badami, of actively participating in the beating of deceased, is not proved beyond reasonable doubt, while it has been proved in respect of other accused. These accused thus, in our view, cannot be held guilty of committing culpable homicide amounting to murder of Dharamjeet. At the same time, the evidence which has come in cross-examinations thus clearly shows that accused appellants, namely, Mukesh, Gariba and Vinod shared a common intention to commit murder of deceased Dharamjeet, which is evident from the fact that deceased Dharamjeet was subjected to beating initially at the hand-pump and then dragged to the house of Gyani, where he was given severe beating and his head was mercilessly crushed leading to his death. They are thus liable to be held guilty for committing offence under Section 302/34 of the IPC. Accused Ramniwas, Santi and Badami are entitled to benefit of doubt in view of the nature of evidence that has been discussed above in detail.
Appeals of accused appellants, namely, Ramniwas, Smt. Santi (Appeal No.1478/2003) and Smt. Badami (Appeal No.1354/2003) deserve to succeed and same are allowed. They are acquitted of all the charges. Sentence of accused-appellants Smt. Santi and Smt. Badami was suspended by this court vide its order dated 15.11.2003 and they are on bail. They need not surrender. Their bail bonds are discharged. Accused-appellant Ramniwas, who is in jail, be immediately set at liberty, if not required to be detained in any other case. However, keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, these three appellants 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. In the event of filing of Special Leave Petition against this judgment or on grant of leave, they, on receipt of notice thereof, shall appear before the Supreme Court.
Appeals of accused-appellants, namely, Mukesh (Appeal No.1354/2003), Gariba and Vinod (Appeal No.1478/2003) are dismissed. However, their conviction under Section 302/149 IPC is altered to Section 302/34 IPC and they are sentenced to undergo life imprisonment. Their conviction and sentence for other offence under Sections 148 and 341 IPC are upheld.
Both appeals stand disposed of accordingly.
(S.S. Kothari) J. (Mohammad Rafiq) J. //Jaiman//