Rajasthan High Court - Jaipur
Heera Ram And Ors. vs State Of Rajasthan on 20 March, 1995
Equivalent citations: 1995CRILJ3778
Author: V.G. Palshikar
Bench: V.G. Palshikar
JUDGMENT B.R. Arora, J.
1. These appeals are directed against the judgment dated 29-6-87 passed by the District and Sessions Judge, Merta, by which the learned Sessions Judge convicted accused-appellant Heera Ram for the offences under Sections 148, 302, 325/149 and 323/149., I.P.C. and accused Meh Ram, Karna Ram, Mangu alias Mangi Lal and Sri Ram for the offences under Sections 148, 302/149, 323/149 and 323/149, I.P.C. ad sentenced accused Heera Ram 'for' the offence under Section 302, and other appellants Sri Ram, Mangu, Karna Ram and Meh Ram for the offence under Section 302/149 to undergo rigorous imprisonment for life and a fine of Rs. 500/- and in default of payment of fine further to undergo one year's rigorous imprisonment; two years rigorous imprisonment for the offence under Section 148, I.P.C.; two years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine further to undergo six months rigorous imprisonment for the offence under Sections 325/149, I.P.C. and six months rigorous imprisonment for the offence under Sections 323/149, I.P.C. However, the learned Sessions Judge acquitted the co-accused Bhanwara and Dhanna Ram of all the charges levelled against them.
2. The appellants alongwith Bhanwara Ram and Dhanna Ram were tried by the learned Sessions Judge, Merta, for committing the murder of Chandra Ram and inflicting simple and grievous injuries to Jeewan Ram, Smt. Gorli and Chotthu Ram. The case of the prosecution is that on 3-8-84, at about 4.00 p.m., Chandra Ram was grazing his she-goats in the Gochar land of village Barnail. Accused Heera Ram, Meh Ram., Sri Ram, Karna Ram, Bhanwara Ram, Dhanna and Mangu alias Mangi Lal, armed with Lathis, came there and started beating Chandra Ram, Jeewan Ram, Smt. Gorli and Chotthu Ram tried to intervene and rescue Chandra Ram but the accused, also, inflicted injuries to them. Bhera Ram - the son of deceased Chandra Ram - came there on hearing the alarm and on seeing him, the accused ran away. The injured were thereafter brought to Gachhipura Hospital in a cart by Bhera Ram. By that time, Chandra Ram succumbed to the injuries. The injured were attended by the doctor at Gachhipura Hospital and were referred to Jawahar Lal Nehra Hospital, Ajmer. The motive for committing the murder of Chandra Ram with the accused was that there was previous enmity between the parties with respect to the allotment of the land and earlier, also, on two occasions the accused parties tried to dispossess the complainant party and gave them beatings. The prosecution were lodged against the accused on the earlier occasions for the aforesaid overt-acts. The prosecution, in support of its case, examined twelve witnesses. The nature of the evidence, produced by the prosecution, consists of the statements of five eye witnesses, viz., PW-1 Bhera Ram, PW-2 Jeewna, PW-3 Smt. Gorli, PW-4 Jeewan Ram and PW-5 Chothu Ram, out of whom PW-3 Smt. Gorli, PW-4 Jeewan Ram and PW-5 Chothu Ram are the injured witnesses who received the injuries during this incident. This evidence of the eye witnesses is sought to be corroborated by the evidence of PW-8 Dr. Shiv Prakash Bohra, who examined the injured and, also, conducted post-mortem on the deadbody of Chandra Ram. PW-6 Bhoonda Ram is the Motbir witness to the preparation of the site-plan, the arrest memo of the accused and the other memos. PW-7 mangi Lal and PW-9 Shivdan Ram are the two witnesses of the recoveries of the Lathis on the information and at the instance of the accused. PW-10 Nawal Kishore was the Station House Officer, who conducted the Investigation and presented the challan. PW-11 Suraj Mal was the Malkhana Incharge, posted at Police Station, Gachhipura, in whose possession the articles remained in the sealed condition. PW-12 Dr. B. L. Bhatia was the Medical Jurist, posted at Jawahar Lal Nehru Hospital, Ajmer, who referred the case of Chothu Ram for X-ray examination and on X-ray examination, two fractures were found on his right leg and there were, also, the fractures of his 7th, 8th and 9th ribs. The accused, in their defence, examined five witnesses, viz., DW-1 Sumer Singh, DW 2 Srawan Singh, DW-3 Ram Singh, DW-4 Laxman Singh and DW-5 Mangu. The case of the accused, set-out in the defence, was that on the relevant day, at about 4.00 p.m., Mangu, Laxman Singh, Kishna Ram, Chandra, Chothu, Smt. Gorli, Jeewan Ram, Pabu and certain other persons were digging the Nadi (small water pond); Mangu and Shiv Ram alongwith Pabu Ram, Shiv Dan, Srawan. Moti and ten to fifteen more shepherds came there alongwith their catties; the catties started drinking water in the Nadi; four-five she-goats of the shepherds entered into the field of Chandra Ram; Mangu and Sri Ram tried to take-out the she-goats from the field and when they were returning, accused Chandra Ram, Jeewan Ram and Smt. Gorli, armed with Lathis, came there and asked them why their she-goats entered the field, upon which some altercations took-place and Chandra Ram abused him; after abusing Mangu Ram, he inflicted injury to him and started beating him; the injury inflicted by Chandra Ram was received by Mangu on his thigh and the right side of his waist; Shiv Ram received injury on his right hand; the other persons i.e. the shepherds thereafter gave beatings to Chandra Ram, Jeewan Ram and Smt. Gorli. The defence story, put by the accused, was not believed by the learned Sessions Judge and he, after trial, convicted and sentenced the aforesaid five appellants, as stated above, but acquitted co-accused Bhanwara Ram and Dhanna Ram. It is against this judgment dated 29-6-87, passed by the learned Sessions Judge, Merta, convicting and sentencing the accused-appellant for the aforesaid offences that the appellants have preferred these appeals.
3. It is contended by the learned counsel for the appellants that the learned trial Court was not justified in disbelieving the case of the appellants set-up in the defence and the incident never took place as alleged by the prosecution but actually it took place near Sadolai Nadi and the injuries to the complainant party were not inflicted by the appellants but the same were inflicted by the shepherds when the complainant party inflicted injuries to Mangu and Shiv Ram and, therefore, the prosecution has failed to prove the case against the appellants and they deserve to be acquitted. Alternatively, it is contended by the learned counsel for the appellants that there was no common object of killing the deceased and the incident took place at the spur of moment and the intention, at the most, which can be gathered from the evidence produced by the prosecution, can be to cause simple and grievous injuries to the injured and not to cause death of any one of them and, therefore, the appellants can, at the best, be convicted and sentenced for the offence under Sections 325/149, I.P.C. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned Sessions Judge.
4. We have considered the submissions made by the learned counsel for the parties.
5. There are five eye witnesses of the occurrence and out of whom three are the injured. PW-1 Bhera Ram is the son of deceased Chatra Ram, who has stated that on 3-8-84, at about 3.00/4.00 p.m., he was in his Dhani situated in village Barnail and his father was grazing the she-goats in the Gochar land of the village, which is at a distance of about 200 Paundas from their Dhani. He heard the cries, "MAARO MAARO" and ran towards the place of the incident where his father was grazing the she-goats and saw all the seven accused, i.e., the five appellants and co-accused Bhanwara Ram and Dhanna Ram, inflicting injuries to his father. Chothu Ram, Smt. Gorli and Jeewa Ram were, also, present there, who were trying to rescue his father and the accused, also, inflicted injuries to them. When he reached near the place of the incident, all the accused ran away. He saw his father lying unconscious and noticed injuries on his legs, head, chest and other parts of the body. Chothu Ram, Jeewan Ram and Smt. Gorli were, also, having injuries on their person. He brought a cart, put all the injured in the cart and took them to Gachhipura Hospital. The doctor on duty, after seeing his father, declared him dead. Thereafter he went to the Police Station and lodged the report. He has, also, stated that there was a previous enmity between the complainant party and the accused-party regarding allotment of land to them and the accused party wanted to take forcible possession of that land. Chothu Ram was, therefore, got admitted in Jawahar Lal Nehru Hospital, Ajmer, where he was medically treated. In the cross-examination, this witness has admitted that on the allotment of the Gochar land in favour of this father, Heera and some other villagers raised objections and in the year 1974-75, two criminal cases were instituted against Heera Ram and some other villagers and in both those cases, Heera Ram and four other persons were tried but thereafter acquitted. After the decision of the aforesaid two cases, in the year 1978, another case for burning the crop of the complainant party by the accused, was registered against Heera and four other persons and one case of giving beating and snatching the wrist watch of Bheru was, also, lodged against the appellant Heera and others and in both these cases, also they were tried but acquitted, it has also, been admitted by this witness that all the accused are close relatives - four are the real brothers, two are the nephews and one is the cousin.
PW-2 Jeewna is the another eye witness to the occurrence. This witness has not been believed by the learned trial Court and after going-through the statement of this witness, we are also of the opinion that he is not a reliable witness. The learned Sessions Judge was, therefore, justified in not placing reliance over the statement of this witness.
PW-3 Smt. Gorli is the other eye witness of the occurrence, who received injuries in this incident. She has stated that on the relevant day, she had gone to fetch water from the water-pond. All the accused, armed with Lathis, came there and started beating Chandra Ram, who was grazing his she-gots near the Nadi. Chothu Ram was, also, present there who, also, was grazing his she-goats. Accused Heera Ram inflicted injury by the Lathi on the head of Chandra Ram. Thereafter all the accused started giving beatings to Chandra Ram and while giving beating to Chandra Ram the accused were saying, "Kill Chandra Ram so that the dispute may be resolved for all the time to come." When Chothu, Jeewna and she tried to intervene and get Chandra Ram rescued, they too were given beatings by the accused. Meh Ram inflicted injury on her hand, and Karna Ram inflicted injury, on her legs. Chandra Ram became unconscious after receiving the injuries. Thereafter Bhera Ram came there and on seeing him coming the accused, ran away. Bhera Ram thereafter took Chandra Ram, Jeewan Ram, Chothu Ram and her in a cart to Gachhipura Hospital. In Gachhipura Hospital, the doctor on duty, after seeing Chandra Ram, declared him dead and gave medical aid to Jeewna, Chothu and to her, Chothu Ram was referred to the hospital at Ajmer.
PW-4 Jeewan Ram, the other eye witness, who was also injured in this incident, has stated that on the fateful day, at about 3.00 p.m., his she-goats had gone with the flock of Chothu Ram. He went in search of his she-goats and found Chothu Ram grazing his catties in the gochar land of village Barnail. Chandra Ram was, also, grazing his catties in that Gochar land. All the seven accused, armed with Lathis, came there and started inflicting injuries to Chandra Ram and were, also, saying, "Chandra Ram should be done to death." Accused Heera Ram inflicted injury by the Lathi on the head of Chandra Ram and the other accused, also, inflicted injuries by the Lathis to Chandra Ram. Chothu Ram, Smt. Gorli and he tried to intervene and rescue Chandra Ram but they were, also, given beatings by the accused. Heera Ram inflicted injury on his left hand's wrist, Meh Ram inflicted injury on his leg. Karna Ram inflicted injury by the Lathi on his right leg. Chandra Ram became unconscious after receiving the injuries. Thereafter Bheru Ram came and on seeing him coming, the accused ran away. Smt. Gorli, Chothu Ram. Chandra Ram and he were brought to Gachhipura Hospital by Bheru Ram on a cart but Chandra Ram died on the way.
PW-5 Chothu Ram is another eye witness, who is, also, an injured in this incident. He has stated that on the fateful day, at about 4.00 p.m., he was grazing his calves near the Nadi. All the accused, armed with Lathis, came there and started beating Chandra Ram. Accused Heera Ram inflicted a Lathi injury on the head of Chandra Ram, who, after receiving the head injury, fell down on the ground and thereafter all the other accused, also, started beating Chandra Ram, Jeewan Ram, Smt. Gorli and he tried to intervene and rescue Chandra Ram but they too were inflicted injuries by the accused. Heera Ram inflicted injury by the Lathi on his head while Shri Ram inflicted injury by a Lathi on his shoulder while Meh Ram inflicted injury by the Lathi on his waist and Karna Ram inflicted injury by the Lathi on his knee and Mangu inflicted injury by the Lathi on his leg. Accused Bhanwara Ram, also, inflicted injury by a Lathi to him. The accused, also, tried to give beatings to them and tried to done them to death. He raised alarm, which attracted Bhera Ram, who came there and took all the four injured to Gachhipura Hospital in a cart.
A lengthy cross-examination has been conducted on each of the aforesaid four eye witnesses, but nothing could be elicited from them in the cross-examination which may render their evidence unreliable. From the evidence of these four eye witnesses, it, therefore, stands proved that the incident took place near the Nadi (small water pond) where Chandra Ram and Chothu Ram were grazing their catties. The story put by the defence that the incident took place near Sadolai Nadi on the entering of the she-goats of accused Mangu and Sri Ram in the field of the complainant party and inflicting injuries to the complainant party by the shepherds, does not inspire confidence and the learned trial Court was, therefore, justified in not believing the defence version. The prosecution, from the evidence of these eye witnesses, has been able to establish the case against the accused that these were the persons who inflicted injuries to Chandra Ram and killed him and, also, inflicted injuries by Lathis to injured Chothu Ram, Jeewan Ram and Smt. Gorli.
6. This evidence of the aforesaid eye witnesses further finds corroboration from the recoveries of the blood-stained Lathis on the information and at the instance of the accused. These recoveries stand proved from the evidence of PW-7 Mangi Lal, PW-9 Shivdan Ram and PW-10 Nawal Kishore, S.H.O. the Investigating Officer. The evidence of these eye witnesses further finds corroboration from the medical evidence of PW-8 Dr. Shiv Prakash Bohra, who examined all the injured and conducted autopsy on the deadbody of Chandra Ram and found thirteen injuries on the person of Chandra Ram, fourteen injuries on the person of Chothu Ram, four on the person of Jeewan Ram and four on the person of Smt. Gorli and all these injuries were opined to have been caused by blunt objects like Lathis, which were carried by the accused at the time of the incident.
7. The next question, which requires consideration is: whether the appellants, being armed with Lathis, which were used as the weapons of the offence, caused the aforesaid injuries knowing it that they are going to cause death and the injuries inflicted by them were caused with an intention to cause the death of the member(s) of the complainant party'? The accused were armed with Lathis. They are guilty of rioting. They used these Lathis as the weapons of offence and caused death of Chandra Ram. The ingredients of the offence under Section 148, I.P.C., therefore, stand established as the violence-has been used by the members of the unlawful assembly in the prosecution of the common object of that assembly and, therefore, they were rightly convicted and sentenced by the learned Sessions Judge for the offence under Section 148, I.P.C. The conviction and sentence of the accused-appellants for this offence, therefore, does not require any interference.
8. The next question, which requires consideration is: what offence has been made-out against the accused-appellants and what was the common object of the unlawful assembly? In order to fasten the liability of the members of the unlawful assembly, the prosecution must prove that the act was done by the accused-appellants with the common object of the unlawful assembly or the act done is such that the members of the assembly knew likely to be committed in the execution of the common object of that unlawful assembly. It is true that all the five appellants assembled at the sense of the occurrence and were armed with Lathis. They inflicted injuries to four persons. The injuries received by the deceased as well as the three injured were thirty-eight in number. Only one injury, which was inflicted by accused-appellant HEERA RAM on the head of deceased Chandra Ram was found to be fatal and the remaining injuries were not on the vital parts of the body. Most of the injuries were found on the feet and hands of the injured. The accused were five in number and the complainant party was completely unarmed and, therefore, if the appellants had any intention to kill them then they had ample opportunity to do so. The parts of the body selected by the appellants and the nature of the injuries inflicted by them, clearly show that the common object of the unlawful assembly was only to give thrashing to the complainant party and not to commit the murder of Chandra Ram or the other injured. Appellant Heera Ram as per the prosecution case, inflicted injury by the Lathi on the head of Chandra Ram. That was the first injury inflicted by him, which landed on the head of Chandra Ram. He did not repeat any more injury to Chandra Ram and, therefore, he cannot be imputed with the intention or knowledge to cause the death of the deceased. But he can be imputed with the knowledge that he was likely to cause an injury which was likely to cause the death of Chandra Ram. In the absence of any positive proof that the appellant caused the death of deceased with an intention of causing his death or intentionally inflicted that particular injury which was sufficient in the ordinary course of nature to cause death, neither Clause Firstly not Clause Thirdly of Section 300 I.P.C. can be attracted and, therefore, appellant Heera Ram can be convicted for the offence under Section 304 Part II, I.P.C. and not for the offence under Section 302 I.P.C. The other accused appellants, who shared the common object of the unlawful assembly and gave beatings to the injured and inflicted simple and grievous injuries and except injury No. 2 found on the person of the deceased, all the injuries are simple in nature and they can be convicted for the offence under Section 323/149 I.P.C. for causing injuries to the deceased. The conviction of appellant Heera Ram for the offence under Section 302 I.P.C. is, therefore, set-aside and he is convicted for the offence under Section 304 Part II, I.P.C. and the remaining appellants are acquitted of the offence under Section 302/149 I.P.C. but they are convicted for the offence under Section 323/149 I.P.C. for causing simple injuries to Chandra Ram.
9. The next question, which requires consideration is: whether the offences under Sections 325/149 and 323/149 I.P.C. for causing simple and grievous injuries by the accused-appellants to Chothu Ram, Jeewan Ram and Smt. Gorli, are proved against them or not? From the evidence produced by the prosecution and discussed above, inflicting of the injuries by these accused to Jeewan Ram, Chothu Ram and Smt. Gorli stands established. Smt. Gorli and Jeewan Ram received simple injuries while injured Chothu Ram received simple as well as grievous injuries inflicted by the appellants by Lathis. There were five fractures found on the person of injured Chothu Ram, the accused-appellants were, therefore, rightly convicted for the offences under Sections 325/149 and 323/149 I.P.C. The conviction and sentence of the appellants for the offences under Section 325/149 and 323/149 I.P.C., imposed by the learned Sessions Judge, do not require any interference.
10. In the result, the appeals, filed by the appellants, are partly allowed. The conviction and sentence of accused appellant Heera Ram for the offence under Section 302 I.P.C., passed by the learned Sessions Judge, Merta, are quashed and set-aside, but he is, however, convicted for the offence under Section 304 Part II, I.P.C. and is sentenced to undergo five years rigorous imprisonment and a fine of Rs. 2000/- and in default of payment of fine further to undergo one year's rigorous imprisonment. His conviction and sentence for the offences under Sections 148, 325/149 and 325/149 I.P.C. are, however, maintained. The remaining accused-appellants, viz., Meh Ram, Mangu alias Mangi Lal, Shri Ram and Karna Ram, are acquitted of the offence under Section 302/149 I.P.C. and for causing simple injuries to deceased Chatra Ram, they are convicted for the offence under Section 323/149 I.P.C. Their conviction and sentence for the offences under Sections 325/149 and 323/149 I.P.C. for causing grievous and simple injuries to Jeewan Ram, Chothu Ram and Smt. Gorli as well as their conviction and sentence for the offence under Section 148 I.P.C. are maintained. All the substantive sentences shall run concurrently. The period of imprisonment undergone by the appellants during investigation, enquiry or trial will be set-off against the term of the sentences imposed against them. Out of the amount of fine, if so recovered, a sum of Rs. 2500/- may be paid to injured Chothu Ram and Rs. 750/- each be paid as compensation to injured Smt. Gorli and Jeewan Ram.