Rajasthan High Court - Jaipur
Gopal & Ors vs State on 29 November, 2016
Bench: Chief Justice, Pushpendra Singh Bhati
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN BENCH AT JAIPUR
D.B.CRIMINAL APPEAL NO. 112 / 1983
1- GOPAL
2- GANPAT
3- SITARAM
all sons of Shri Kalu Das, by caste Sadhu residents of
village Bansle, Police Station Pushkar, District Ajmer.
---- Appellants
Versus
STATE OF RAJASTHAN
----Respondent
__________________________________________ For Petitioner : Shri K.A. Khan.
For Respondents : Shri B.N.Sandu, PP __________________________________________ HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI JUDGMENT 29/11/2016
1). The Appellants stand convicted under Section 302/34 IPC to life imprisonment alongwith fine by the Sessions Judge, Ajmer dated 22.02.1983 in Sessions Case No.10/1981 (8/1981). The appeal stood abated with regard to Appellant No.3 by order dated 13.02.1997 because of his demise during pendency of the appeal. Another accused Bhunwar Das was declared absconder and charge sheet filed in absentia. 2
2). PW-2 Smt. Nathi, wife of the deceased lodged a police report, Exhibit P/1 on 8.11.1979 at about 6.15 pm with regard to an occurrence in the fields at 4.35 pm the same day resulting in the death of her husband Bodudas. The Appellants are alleged to have been standing in the fields across the road exhorting the absconding accused Bhunwar Das who assaulted the deceased thrice with the sharp edge of a knife in the stomach, on the face and neck. The deceased fell down and died. The postmortem, Exhibit-P/4 conducted by PW-4 Dr.Prem Chand Deedwania found three incised injuries, 1"x1/2"x1/3" on the angle of mandible on the left side, on the left side of neck 1¼"x1/2"x 1/6" about 1½" from left clavicle direction medio lateral and upwards and the third incised injury 1" x 1/2" on the left ventricle and heart opining that death was caused due to perforated wound 1" x 1/2" x 4" deep running antro posteriorly from left to right side at the level of 6th& 7th ribs on left side of thorac about 1" from mandible cutting 6th& 7th ribs on left side about 1" from mandible and perforated the pericardium and left ventricle and inter ventricular septum and right ventricular wall.
3). Learned Counsel for the Appellants 3 submitted that according to the three eye-witnesses PW-2, Nathi wife of the deceased, PW-3, Ugma daughter-in-law of the deceased and PW-5, Dhapu aunt of the deceased absconding accused Bhunwar Das alone made three assaults with the knife which is corroborated by the post mortem report also. There is no attribution of any assault by Appellants nos. 1 and 2 upon the deceased. In the FIR itself, the informant has stated that the Appellants were standing in the fields across the road and were not even present at the place of occurrence. PW-2, Nathi in her Court statement reiterated that the deceased was assaulted thrice by absconding accused Bhunwar Das and made only omnibus allegations against the Appellants. In cross-examination she admitted a land dispute between the parties and that she did not see the Appellants assaulting the deceased. The witness acknowledged having mentioned in the FIR that the Appellants were in the fields across the road at the time of occurrence. She then stated that she did not remember if the Appellants exhorted to assault the deceased. Similarly PW-3, Ugma also deposed that the absconding accused assaulted thrice with a knife. The allegation of assault by any other is not supported by the medical evidence as there are no other injuries 4 except the three injuries attributable to the absconding accused. She acknowledged that in her police statement was not mentioned that the Appellants were exhorting. Likewise, PW-5 Dhapu who was 60 years old with poor eye sight alleged assault by the Appellants in an omnibus manner. The ocular evidence regarding assault by the Appellants is not corroborated by the medical evidence.
4). There was not an iota of evidence for common intention to kill and conviction with the aid of Section 34 was not justified merely because they may have been present in the fields across the road. There is neither any evidence that they were aware that the absconding accused had a knife with him. If the intention was to kill and the appellants were possessed of axe, lathi and farsi nothing prevented them from going to the fields of the deceased also and assaulting to ensure that the deceased had no chance of survival. In the background of the land dispute, the facts that all the accused were brothers, the possibility of false implication cannot be ruled out. At best it can be said that the Appellants had an intention to teach a lesson to the deceased by beating him up in view of the evidence of PW-2, Nathi that the crops had been sown by the Appellants forcibly but not to kill. If the 5 absconding accused exceeded his brief to teach a lesson to the deceased, he is answerable for his acts alone. The Appellants were not armed with any deadly weapons as lathi, axe and farsi are common items kept by any villager.
5). Counsel for the State submitted that motive for the occurrence clearly existed because of the land dispute. It is evident from the statement of PW-2, Nathi that the Appellants were the aggressors. To establish common intention it is not necessary that there must be an overt act of assault. Their presence at the time of occurrence and exhorting the Bhunwar Das to kill, was sufficient evidence by itself of common intention. Reliance was placed on AIR 2003 Supreme Court 796 (Chittar Mal Vs. State of Rajasthan).
6). We have considered the submissions on behalf of the parties and perused the evidence on record also.
7). The three appellants and the absconding accused Bhunwar Das are all brothers. A land dispute between the parties and litigation with regard to the same is admitted by PW-2, Nathi. Motive therefore may have existed for the assault. But, motive is a double edged sword which may also provide the 6 impetus for false implication. Therefore the facts of each case will have to be carefully examined and if the accused are all related to each other, the evidence will have to be carefully scrutinised to exclude any possibility of false implication as it is a matter of common knowledge that in a land dispute the tendency to rope in the entire family to prevent any obstruction in the enjoyment of the lands is not uncommon. In (2011) 14 SCC 208 (Jalpat Rai v. State of Haryana) it was observed as follows :-
"42....Cases are not unknown where an entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime...."
8). The existence of common intention or the absence of it will depend on the facts of each case. There can never be direct evidence of common intention and it will have to be culled out in the facts of each case from the conduct of the parties in coming to the place of occurrence and departure, the nature of weapons used, the manner of assault, the opportunity to do so and desisting from the same, the brutality of the assault and at times exhortation may be proof of common intention as it provides the impetus to the assailant but for which he may have 7 desisted also.
9). If there is a conflict between the ocular evidence and the medical evidence, normally the ocular evidence is to be believed unless it is in direct conflict with the medical evidence and the two cannot exist simultaneously. In such a situation, medical evidence will have to be given precedence. The primacy of medical evidence in specified circumstances was noticed in (2013) 4 SCC 422(Sunil Kundu v. State of Jharkhand) observing :-
"23.....It is true that when there is cogent eyewitness account, the medical evidence recedes in the background. However, when the eyewitness account is totally inconsistent with the medical evidence and there is reason to believe that improvements are made in the court to bring the prosecution case in conformity with the post-mortem notes, it is a cause for concern. In such a situation, it is difficult to say that one must believe the tainted eyewitness' account and keep the medical evidence aside...."
10). An FIR need not contain the complete details of the case and may disclose only a cognizable offence with the rest of the story unfolding during cross-examination. But in certain cases it may become relevant as the first rendition of the occurrence in conjunction with other evidence on record especially where a defence of false implication of the entire 8 family is taken due to a pre-existing enmity. The Appellants are stated to have been standing in the fields across the road. The absconding accused Bhunwar Das alone came on the fields of the deceased. The latter alone was armed with a knife. There is no evidence that the Appellants were aware of the fact that that he was carrying a knife when they are alleged to have exhorted from a distance. The allegation of three assaults by Bhunwar Das is specific while it is omnibus against the Appellants not corroborated by the medical evidence.
11). The Appellants are stated to have shouted "Maro Maro". The normal vernacular meaning of this expression is to beat. There has to be a difference between exhorting to beat and to kill. If the Appellants intended to exhort for killing the deceased nothing prevented them from saying so. It is difficult to hold that the Appellants standing in the fields across the road from the place of occurrence in the fields of the deceased were exhorting the to kill and not simply to beat him up. In the background of the land dispute, it is a distinct possibility that the accused wanted to teach the deceased a lesson. For teaching a lesson, it was not necessary that the deceased should be killed. Beating him up may also have served as a lesson. But 9 if during the course of beating being given, one of the accused exceeds his brief pulls out a knife and assaults the deceased thrice, he is answerable for his acts alone. The observations in (2005) 12 SCC 300 (Chaturbhuj Pandit v. State of Bihar (Now Jharkhand) are considered relevant in the facts of the present case :-
"5...It is quite apparent that the four appellants before us came with a view to demolish the boundary wall of the informant which, according to them, was an encroachment on their land. Therefore, it cannot be inferred that all of them shared the common intention of setting the informant's roof on fire. The act of Sanjay Pandit was, therefore, his individual act for which others cannot be held responsible."
12). PW-2, Nathi acknowledged in cross- examination that the appellants neither assaulted the deceased nor chased him. In her police statement also she did not state that the Appellants came into her fields at the time of occurrence. Similarly PW-3, Ugma in her cross-examination also acknowledged not having mentioned in her police statement that Appellants were exhorting. PW-5,Dhapu acknowledged weak eye sight because of age.
13). There is no evidence that the deceased tried to escape and the Appellants prevented him from doing so or that when any of the witnesses tried to 10 come to his aid they obstructed when entirely different considerations would have arisen. It is difficult in the facts of the case to hold a common intention on part of the Appellants that they shared any common intention to kill the deceased.
15). Chittarmal (supra) sought to be relied upon by the respondents is completely distinguishable on its own facts. There has to be a difference in deciphering common intention when the accused entered the house of another at 10 to 11 pm and indulged in brutal assault and when they stood in the fields across the road while the assault took place in the field of the deceased.
16). In conclusion we are unable to sustain the conviction of the Appellants. They are acquitted. The Appellants are required to execute bail bonds of Rs. 20,000/- with two sureties of the like amount to the satisfaction of the Trial Judge as required under Section 437 A of the Code of Criminal Procedure.
17). The appeal is allowed. (DR. PUSHPENDRA SINGH BHATI)J. (NAVIN SINHA)C.J. N.Gandhi/37