Rajasthan High Court - Jaipur
Ghan Shyam vs State on 26 August, 2013
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.177/2005 Gyarsilal, Panchuram and Kalyan Vs. The State of Rajasthan through Public Prosecutor 2. D.B. Criminal Appeal No.786/2007 Ghanshyam Vs. The State of Rajasthan through Public Prosecutor Date of Order ::: 26.08.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mr. Justice Banwari Lal Sharma Shri N.C. Choudhary with Shri Vijay Choudhary, counsel for appellants Shri Javed Choudhary, Public prosecutor Shri Rinesh Gupta with Shri Ajeet Singh, for Shri Rinesh Gupta, counsel for complainant #### //Reportable// By the Court:-
These two appeals arise out of the First Information Report No.123/2000, lodged with Police Station Shivdaspura, though the accused-appellants, in each of them, have been convicted by different judgments passed by the court of Additional Sessions Judge (Fast Track) No.1, Jaipur District, Jaipur, in separate trials. Appeal No.177/2005 has been filed by three accused-appellants, namely, Gyarsilal, Panchuram and Kalyan, against judgment dated 02.02.2005, whereas Appeal No.786/2007 has been filed by accused-appellant Ghanshyam against judgment dated 30.03.2007.
All accused-appellants, in both the appeals, are real brothers, being sons of Ghasiram. Accused-appellants Gyarsilal, Panchuram and Kalyan (in Appeal No.177/2005) have been convicted for offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs.500/- each, in default of payment of which, they were to further undergo one month's simple imprisonment. They have also been convicted for offence under Section 323 IPC and sentenced to six months SI. Accused-appellant Kalyan was however additionally convicted for offence under Section 379 IPC and sentenced to one year's RI with fine of Rs.500/-, in default of payment of which, he was to further undergo one month's SI. Accused-appellant Ghanshyam (Appeal No.786/2007) was convicted for offence under Section 302/34 IPC and sentenced to life imprisonment with fine of Rs.500/-, in default of payment of fine, he was to further undergo one year's RI. All the sentences were ordered to run concurrently.
A written report was submitted to Station House Officer, Police Station Shivdaspura, District Jaipur, by complainant Shankarlal at 9.15 pm on 16.06.2000, alleging that a feast of 'sawamani' was organized in their house on that date, for which he had at about 6.15 pm gone to fetch a water-tank. On the way, he found accused Ghanshyam Meena, Gyarsilal Meena, Kalyan, Panchu Meena and Gopal Meena, all sons of Ghasiram Meena, beating his mother Jyana Devi @ Amari and aunt Nangi. While he was passing through that place, the accused caught hold of him and also his brother Laxmi Narain. On their making hue and cry, complainant's father Bhonrilal Meena accompanied by complainant's brother Sonilal came there. They were also beaten by accused. Suddenly Chhota W/o Ghanshyam Meena, Kalli W/o Harsahai Meena, Rami Meena W/o accused Kalyan Sahai Meena also reached there and started beating the members of the complainant party. Ghanshyam attacked his mother and snatched her ear-ring and necklace. The accused were armed with 'lathis', iron rods and 'kulharis'. Accused Kalyan Sahai snatched the necklace of his brother Sonilal. Immediately thereafter, Radhakishan Meena S/o Ghasi Meena reached there. He also started beating members of the complainant party. Dhapu Meena W/o Gyarsilal also subjected them to beating. Ghasi S/o Rupa also assaulted all the members of the complainant party. All these accused assaulted informant Shankarlal S/o Bhonri Lal Meena, Jyana @ Amari W/o Bhonri Lal Meena, Soni Lal S/o Bhonri Lal Meena, Laxmi Narain S/o Hanuman Sahai Meena, Nangi Devi W/o Hanuman Sahai Meena, Sohan Lal S/o Hanuman Sahai and Mangli Devi W/o Sonilal as also the small children. As a result of injuries, his mother Smt. Jana Devi @ Amari Devi Meena W/o Bhonri Lal Meena died on the way.
On receipt of aforesaid written report, a regular first information report bearing No.123/2000 was registered for offence under Sections 147, 148, 149, 323, 341, 379 and 302 IPC. The Police, after usual investigation, filed challan against Gyarsilal, Panchuram, Kalyan, Ghasiram and Gaura W/o Ghasiram. First three accused, namely, Gyarsilal, Panchuram and Kalyan were convicted and sentenced in the manner indicated above, and latter two accused, Ghasiram and Gaura were acquitted of the charges.
Subsequently, however, an application under Section 319 Cr.P.C. was filed by the prosecution for joining Ghanshyam as accused. The trial court rejected the application. However, this court, on challenge to the said rejection order in revision petition, directed his joining as an accused. He was separately tried, convicted and sentenced in the manner as indicated above.
We have heard Shri N.C. Choudhary and Shri Vijay Choudhary, appearing for the accused-appellants and Shri Javed Choudhary, learned Public Prosecutor, and Shri Rinesh Gupta, learned counsel for the complainant.
Shri N.C. Choudhary, learned counsel for accused-appellants, has argued that the prosecution has failed to prove guilt of the accused-appellants beyond reasonable doubt, inasmuch as testimony of the prosecution witnesses is riddled with numerous incongruities and embellishments, rendering the same to be highly dubious. Although, the first information report was registered on the basis of written complaint submitted by Shankarlal, but later he died and therefore, was not examined as prosecution witness. However, Sheonarain Meena, one of the injured, who also signed the written complaint, has been examined as PW-1. He and all other proclaimed eye witnesses have completely changed the version given in the first information report, making substantial improvement thereupon. While in the first information report, as already noticed above, omnibus allegations were made against all accused, though, in specific, alleging only with respect to accused Ghanshyam that he assaulted the deceased but, in their court statements, all the eye witnesses, namely, Mannalal (PW-2), Kamli (PW-3), Manni (PW-4), Bhonrilal (PW-5), Mohanlal (PW-6), Mangali Devi (PW-7), Lalluram (PW-8), Makhol (PW-9), Laxmi Narain (PW-12), Nangi (PW-13), Laxman (PW-14) and Prahlad (PW-15), have made substantial improvements by toeing the line set by Sheonarain (PW-1), who alleged that Ghanshyam inflicted 'kulhari' blow from its reverse side on the head of deceased Jyana. Another improvement made is that while in the first information report, the informant stated that he was going to fetch the water tank, whereas, in his court statement, Sheonarain (PW-1) has stated that when he was going to invite the children on tractor, accused Ghanshyam, Gyarsilal, Ramkishan, Gopal, Kalyan and their wifes Jora, Dhapu, Kalli, Raji, Moti and Suraj interrupted his way. Accused Ghanshyam pulled him down from the tractor and sat on his chest. Ghanshyam snatched his necklace. When he raised hue and cry, his mother reached there. Ghanshyam inflicted a 'kulhari' blow from reverse side on her head. She fell down and immediately thereafter Gyarsilal, Panchu and Kalyan started inflicting 'lathi' blows on her. The eye witnesses, namely, Sheonarain (PW-1) is son deceased, Mannalal (PW-2) is also her son, Kamli (PW-3) is sister-in-law of the deceased, Manni (PW-4) is mother-in-law of the deceased, Bhonrilal (PW-5) is husband of deceased, Laxmi Narain (PW-12) is son of younger brother of the deceased's husband, and Nangi (PW-13) is wife of brother of deceased's husband. All these witnesses are thus closely related to deceased and therefore have made lot of exaggeration in their statement given to the police under Section 161 Cr.P.C., with which they were confronted during cross-examination, but they could not give any satisfactory explanation. The genesis of the incident has thus been suppressed from the court inasmuch as the manner in which the incident was disclosed in the first information report and thereafter in the statements recorded under Section 161 Cr.P.C., has been completely changed in the court statement.
Shri N.C. Choudhary, learned counsel for the accused-appellants argued that the investigation in the present case is hit by Section 162 Cr.P.C. because the first information report, which was lodged on the basis of written complaint submitted to the SHO, Police Station Shivdaspura at 9.15 pm, is hit by Section 162 Cr.P.C. This was not the first information received by the police. In this connection, learned counsel referred to the statement of Surendra Singh (PW-21) (PW-24 in Appeal No.786/2007 of Ghanshyam), and submitted that he has stated that the incident actually took place at about 5.00 pm. The fact that the incident had already taken place earlier than stated, indicates that the complainant party has not disclosed true version in the first information report as also in their statements. They maintained that the incident took place at 6.15 pm or 6.00 pm. Surendra Singh, Investigating officer (PW-21) (PW-24 in the trial of accused Ghanshyam), stated that immediately after the incident, injured, accompanied by deceased Jyana, came to the police station. They informed about the incident. He immediately took them to the SMS Hospital, Jaipur, for treatment. The fact that the SHO accompanied them to the Hospital is also evident from the written report (Exhibit P-1) showing that he received the same at SMS Hospital at 9.15 pm. The investigation is therefore hit by Section 162 Cr.P.C. and same is vitiated.
Shri N.C. Choudhary, learned counsel for the accused-appellants, argued that Surendra Singh (PW-21) has, in his statement, admitted that the incident took place suddenly on the question of ploughing of the disputed agricultural field by the accused. Learned counsel submitted that both the parties have common ancestors and are descendants of Kana, who had two sons, Ruparam and Mangi Lal. Ruparam also had two sons - Ramnarain and Ghasiram, whereas Mangilal was issueless. Ram Narain was taken in adoption by Mangilal. Total 23 bighas of agriculture land was divided into half each between Ramnarain and Ghasiram. They had their house constructed and the cattle sheds built in the agriculture land in such a way that while Ram Narain had his dwelling house and cattle sheds etc. in the part of the agriculture land recorded in the khatedari of Ghasiram and vice-versa. Learned counsel has, in this connection, taken the court through the statements of all the eye witnesses and that of the Investigating Officer, which shall be dealt with at the appropriate place hereinafter.
Shri N.C. Choudhary, learned counsel for the accused-appellants argued that prosecution witnesses having admitted that the incident took place on the land, which was in possession of the Ghasiram just behind their cattle-sheds, close to their house, which the complainant party want to plough forcibly. He has in this connection also referred to site plan (Exhibit P-2) Since the accused-party had been in possession of the land, they were well within right to retaliate in exercise of the right of private defence. Learned counsel for the accused-appellants, in this behalf, referred to the exception clause in Section 100 IPC to argue that the act of the appellants would fall within the exception carved out therein, and they would have no criminal liability.
Learned counsel submitted that Ghasi and his wife Gaura have received grievous injuries. Accused Kalyan also received two injuries on head, which had to be stitched, however, the same were opined to be simple in nature. Considering that the injuries had to be stitched, it clearly indicates intention of the complainant party. The prosecution has not offered any explanation whatsoever for the injuries of the accused. In support of this argument, learned counsel has relied on the Division Bench judgment of this court in Sawai Ram and Another Vs. State of Rajasthan - 1997 Cr.L.R. (Raj.) 527 and the judgment of the Supreme Court in Lakshmi Singh and Others Vs. State of Bihar AIR 1976 SC 2263.
Shri N.C. Choudhary, learned counsel, while arguing in the appeal of accused-appellant Ghanshyam, submitted that Investigating Officer Surendra Singh, who was examined as PW-24 in his trial, has categorically stated that he did not find involvement of accused-appellant Ghanshyam. The fact is that all other accused received injuries, but accused Ghanshyam did not receive any injury, which supports his this contention. He has been falsely implicated in the present case because he was permanent employee of the Life Insurance Corporation of India. He during the investigation recorded statements of his fellow officers in the Branch of LIC, where he was employed. Learned counsel argued that apart from statement of the Investigating Officer Surendra Singh Punia (PW-24), other prosecution witnesses, namely, Sudhanshu Saxena (PW-9), Branch Manager of LIC, Tripolia Bazar Branch, Jaipur, Naresh Sharma (PW-10), Administrative Officer in the LIC Branch, Sita Ram (PW-11), Assistant in the LIC Branch, and Ram Gopal (PW-17), Assistant in the LIC Branch, have also deposed that accused-appellant Ghanshyam was very much present in the office till 6.00 pm. Mannalal (PW-1) and Prahlad (PW-15) have also proved that Ghanshyam was not present at the scene of occurrence when the incident took place. Thus, as many as six prosecution witnesses have supported his plea of alibi. It is argued that the incident having taken place in village Barkheda, distance of which is more than 40 kilometers from the branch office of the LIC, accused Ghanshyam could not be physically present at both the places. Besides, Ram Phool (PW-17) has stated that at about 6.30 pm he and Ghanshyam were at the office and thereafter accused Ghanshyam left the office saying that he would go to his brother Gopal. Ravindra Kumar, owner of motor-parts shop, where Gopal was employed, was examined as DW-1. He stated that he knows accused Ghanshyam, whose brother Gopal Lal Meena was his employee. He has also proved that accused-appellant Ghanshyam had come to his shop at around 6.30-6.45 pm in the evening that day. At that time, Gopal received phone call from his wife about the incident. In support of his arguments, learned counsel has relied on the judgments of the Supreme Court in Jai Devi Vs. State of Punjab (AIR 1963 SC 612) and Munshi Ram and Others v. Delhi Administration (AIR 1968 SC 702).
In the alternative, learned counsel for appellants has argued that even if it is held that the appellants are guilty of exceeding the right of private defence, then also the offence would not travel beyond the scope of Section 304 Part II of the IPC. Learned counsel submitted that Sheonarain (PW-1), Manni (PW-4), Mangali Devi (PW-7) and Investigating Officer Surendra Singh (PW-21), are consistent in saying that the incident took place suddenly. The fact that even when the prosecution witnesses prove that incident took place suddenly and the accused were armed with only 'lathis' and not with deadly weapons, clearly shows that there was no premeditation and therefore it cannot be said that accused had any common intention. It was in fact a case of free fight, with the incident having taken place suddenly. Besides, the evidence of all these also proved that deceased Jyana had come subsequent to the scuffle started between accused and Sheonarain. There was thus no intention of the accused to liquidate deceased Jyana. Examined from this angle too, the offence therefore at the maximum would be that of culpable homicide not amounting to murder falling in Part II of Section 304, IPC. Learned counsel, in support of his arguments, relied on Division bench judgments of this court in Ganpat and Others Vs. State of Rajasthan 2012 (1) Cr.L.R. 546, Mohan Lal and others Vs. State of Rajasthan 2012 (4) Cr.L.R. (Raj.) 1923, and those of the Supreme Court in Dharam and Others Vs. State of Haryana - 2007 (15) SCC 241, Ranjitham Vs. Basavaraj and Others (2012) 1 SCC 414 and State of Karnataka Vs. Muddappa (1999) 5 SCC 732.
Per contra, Shri Javed Choudhary, learned Public Prosecutor, argued that the trial court was fully justified in convicting accused-appellants. He submitted that the evidence adduced on record, has proved that the incident took place in the agriculture field that was entered in the name of complainant party, namely, Ramnarain and therefore the right of private defence would not be available to the accused-appellants. As regards the discrepancy of time in recording the first information report, learned Public Prosecutor submitted that statement of Investigating Officer Surendra Singh (PW-21), in earlier trial does not have any such discrepancy but when this witness was again examined as PW-24 in the trial of accused Ghanshyam, seven years after the incident, he erroneously stated that the incident took place at 5.00 pm. But in that very trial Ravindra Kumar (DW-1) examined by the defence to support the plea of alibi of accused Ghanshyam, has stated that one of his employees Gopal Meena, brother of accused Ghanshyam, received a phone call of his wife at 6.45 pm on that day informing him about the incident and at that time Ghanshyam was there. Informant Shankarlal has died, nonetheless Sheonarain (PW-1) was co-signatory of the written report (Exhibit P-1) and he has proved that the incident actually took place at 6.30 pm. This minor discrepancy in the statement of the Investigating Officer should therefore be ignored. Learned Public Prosecutor argued that although dispute between the parties about the land was ongoing but it was not the immediate cause of the incident. There was therefore, no occasion for the complainant party to be aggressor because on that day around the same time, the programme of 'sawamani' was being organized at their residence. It cannot be visualized in the normal human conduct that they would indulge in such incident on their own. Learned Public Prosecutor denied that any complaint was made by accused-party to the police two days before the incident. When a suggestion to this effect was put to Sheonarain (PW-1), he denied the same. Bhonrilal (PW-5) has also denied that any dispute between the parties took place on 14.06.2000. Learned Public Prosecutor submitted that in fact Laxman (PW-14) has stated that sons of Ghasi had ploughed the agriculture field situated adjacent to the field of Ramnarain, in the afternoon, which proves the allegation against the complainant party that they were trying to forcibly plough the agriculture field, is false.
Learned Public Prosecutor argued that both the parties had received injuries in the same incident and therefore it cannot be said that the injuries on the part of accused-appellants have not been explained. Besides, nature and number of injuries of the accused side are negligible if compared with those of the complainant party. In fact, Mst. Jyana, on the complainant side, lost her life. Investigating Officer Surendra Singh (PW-21) has proved that the accused-appellants sustained injuries in the same incident. Manna Lal (PW-2) in his statement, has explained the injuries of the accused. He has stated that accused received injuries and that when accused Gyarsilal, Panchuram, Kalyan Sahai and Gaura were arrested by the police, they had injuries on their persons.
Learned Public Prosecutor contested the argument that the incident had taken place suddenly at the spur of moment and that it was a case of free fight. According to him, the incident had unfolded into two parts. In this connection, learned Public Prosecutor referred to statements of Sheonarain (PW-1), Mannalal (PW-2), Manni (PW-4) and Mohanlal (PW-6). One part of the incident ended when accused inflicted lathi blow on Jyana, who came there to save Sheonarain and on receiving 'lathi' blows on her head, she fell down and became unconscious. Second part of the incident started when other accused also joined and it was then onwards that it was a case of free fight leading to injuries on both the sides. In the facts like these, there is hardly any justification to hold that right of private defence would be available to the accused-appellants.
Learned Public Prosecutor further argued that non-explanation of the injuries on the person of the accused, does not prove fatal to prosecution case in every situation, if the evidence otherwise available on record, proves guilt of the accused beyond reasonable doubt. In support of his argument, learned Public Prosecutor relied on the judgment of the Supreme Court in Dashrath Singh Vs. State of U.P. - (2004) 7 SCC 408. It is contended that evidence in the present case clearly justifies conviction of the accused-appellants for offence under Section 302/34 IPC as the killing of deceased Jyana was culpable homicide amounting to murder. It is prayed that the appeal be therefore dismissed.
Shri Rinesh Gupta, learned counsel for the complainant, opposed the appeals and argued that plea of alibi is palpably false and has rightly not been accepted by the trial court because all the eye witnesses are consistent in attributing fatal injuries on the person of deceased Jyana, to accused appellant Ghanshyam. Learned counsel in support of this argument, has referred to statements of Sheonarain (PW-1), Mannalal (PW-2), Kamli (PW-3), Bhonrilal (PW-5), Laxmi Narain (PW-12) and Nangi (PW-13). Learned counsel argued that the minor discrepancies in the statement of the prosecution witnesses should be ignored. Accused appellant Ghanshyam has been named as the principle accused even in the first information report with the allegation of causing fatal injuries on the head of the deceased Jyana. It is, therefore, prayed that the appeals be dismissed.
We have given our thoughtful consideration to rival submissions, perused the material on record and also respectfully studied the cited case laws.
The first information report in present case was registered on the basis of written-report submitted by Shankarlal Meena at 9.15 pm on 16.06.2000 to the Station House Officer, Police Station, Shivdaspura, which was also signed by Sheonarain Meena. Shankarlal Meena died before his statement could be recorded, however, the said written-report was also signed by Sheonarain Meena, who was examined as PW-1, to prove the same. Therein, the time of the incident has been indicated to be 6.15 pm, whereas, in the court statement, Sheonarain has stated that the incident took place at around 6.30 pm. Mannalal (PW-2) has also stated that the incident took place at around 6.30 pm. Kamli (PW-3) has stated that the incident took place in the evening. Bhonrilal (PW-5), Mohanlal (PW-6), Mangli Devi (PW-7), Lalluram (PW-8), Laxmi Narain (PW-12), Nangi (PW-13), Prahlad (PW-15) have stated that the incident has taken place at about 6.30 pm. Investigating Officer Surendra Singh, (PW-21) (later on examined as PW-24 in the trial of accused Ghanshyam), in cross-examination, though has stated that the incident took place at around 5.00 pm, but, as rightly pointed out by learned Public Prosecutor, that he might have stated so inadvertently due to long of interval of time because his that statement was recorded almost seven years after the incident. The alleged discrepancy with regard to time of incident, in view of overwhelming evidence available on record is, therefore, insignificant and cannot be form the basis to throw away the entire prosecution case.
Contention that genesis of the incident has been suppressed because the manner in which the incident has been described in the written-report is different than what has been narrated by the prosecution witnesses before the trial court, also cannot be countenanced because the prosecution witnesses, in their court statements, have substantially narrated the same story, which was unfolded in the written-report, except, of course, with certain minor variations. Shankarlal, in the written-report, stated that when he was going to fetch the water-tank at around 6.15 pm on the fateful day, he saw accused Ghanshyam Meena, Gyarsilal Meena, Kalyan, Panchu Meena and Gopal Meena, all sons of Ghasiram Meena, beating his mother Jyana and aunt Nangi. When he reached there, he and his brother were also caught hold of by the accused. His mother and aunt raised hue and cry. On hearing the same, his father Bhonrilal and brother Sonilal came there. Accused subjected them also to beating. Ghanshyam inflicted a blow on the person of his mother and snatched her ear-rings and necklace. Accused were armed with 'lathis', iron rods and 'kulharis'. Kalyan snatched gold necklace from neck of his brother Sonilal. Radhakishan, Dhapu W/o Gyarsilal Meena and Ghasi S/o Rupa also starting beating them. Sheonarain (PW-1), however, by naming all the accused, has stated that they intercepted him while he was going on tractor to invite the children to the feast. Accused Ghanshyam pulled him down and snatched the gold necklace from his neck. Ghanshyam inflicted a 'kulhari' blow from reverse side on the head of deceased Jyana, as a result of which, she fell down and thereafter Gyarsilal, Panchu and Kalyan also inflicted a 'lathi' blows on his mother and also on him. On hearing hue and cry, Mannalal, Chhaju, Prahlad and Lallu, came there and tried to save them. Mannalal (PW-2) has stated that when deceased Jyana @ Amari came out of her house to throw used 'pattals' (plates made of tree leaves), the accused subjected her to beating. He saw Ghanshyam, Gyarsilal, Kalyan, Gopal and Panchu beating her with 'lathis' and 'kulharis'. The accused were also beating Bhonrilal, Sheonarain, Gyarsa, Nangi, Laxmi Narain, Manni. Kalyan and Panchu continued to beat Sheonarain. His mother kept crying and tried to save him. Ghanshyam inflicted a 'kulhari' blow from reverse side on her head. Gyarsi inflicted a 'lathi' blow on her head, as a result of which Jyana fell down. Kamli (PW-3) has stated that Ghanshyam inflicted a 'kulhari' blow from its reverse side on the head of deceased Jyana. Kallu inflicted a 'lathi' blow on her head. Gyarsilal inflicted a 'lathi' blow on her neck. Manni (PW-4) has stated that when Sheonarain was going to invite his relatives for 'sawamani', all the accused intercepted him. Jyana was there. Accused Ghanshyam inflicted a 'kulhari' blow on the head of Jyana. Accused Gyarsilal and Kalyan inflicted 'lathi' blows on her neck. Bhonrilal (PW-5) has stated that Ghanshyam inflicted a 'kulhari' blow from its reverse side on the head of deceased Jyana followed by Gyarsilal and Kalyan, who inflicted 'lathi' blows on her head. PW-6 Mohanlal has alleged that Ghanshyam was having a 'kulhari' with him. He inflicted a blow on her head from its reverse side. Gyarsilal inflicted a 'lathi' blow on left side and Kalyan inflicted a 'lathi' blow on right side on her head. Mangli (PW-7) has also stated that when Jyana came there to save Sheonarain, Ghanshyam inflicted a 'kulhari' blow on her head. Gyarsilal and Kallu (Kalyan) also inflicted 'lathi' blows on her head. Lalluram (PW-8) has stated that Gyarsilal and Kallu inflicted 'lathi' blows on the head of deceased Jyana. Mst. Makhol (PW-9) has stated that Ghanshyam inflicted a 'kulhari' blow on the head of Jyana. Gyarsilal inflicted a 'lathi' blow on her head. Kalyan was also beating her. Laxmi Narain (PW-12) has stated that Ghanshyam inflicted a 'kulhari' blow on the head of deceased Jyana. Gyarsilal and Kalyan also inflicted 'lathi' blows on her head. Nangi (PW-13) has similarly stated that Ghanshyam inflicted a 'kulhari' blow on the head of deceased Jyana. Gyarsilal and Kalyan both inflicted 'lathi' blows on both sides of her head. Laxman (PW-14) has alleged that Gannya (Ghanshyam) inflicted a 'kulhari' blow from its reverse side on the head of Jyana. Gyarsa inflicted a 'lathi' blow on the neck of Jyana and Panchu inflicted a 'lathi' blow on her head. Prahlad (PW-15) has alleged that when Jyana came to save Sheonarain, Ghanshyam delivered a 'kulhari' blow from its reverse side on her head.
Analysis of evidence of all the eye witnesses thus clearly indicates that most of them have alleged that accused initially started beating Sheonarain. They stated that on that day there was programme of 'sawamani' at the residence of complainant. Sheonarain (PW-1) was intercepted and subjected to beating by the accused persons. It was at that stage that deceased Jyana, who was mother of Sheonarain, came there to his rescue and, in that process, suffered fatal injuries leading to her death. Exhibit P-4, injury-report of Sheonarain (PW-1), indicates that he sustained three injuries, though simple in nature. Almost all the witnesses are consistent in stating that deceased Jyana intervened and, while doing so, she sustained fatal injuries. Dr. Shiv Ratan Kochar (PW-22) has proved postmortem-report (Exhibit P-36) of deceased Jyana @ Amari, according to which she received five injuries. While three of them were simple in nature, first two injuries proved fatal and, as per his opinion, the cause of death was these ante-mortem injuries, which, with their internal manifestations, were sufficient to cause her death in the ordinary course of nature, individually as well as collectively. The first injury was cut wound measuring 2.5x1.0cm x scalp tissue deep on right side of occipital region with clotted blood. Second injury was diffused swelling on left parietal-occipital region and over right parietal region. If the statements of prosecution witnesses are analyzed keeping in view the number, nature and location of the injuries sustained by the deceased, it becomes obvious that they are exaggerating because allegation has been made against Ghanshyam of delivering 'kulhari' blow from its reverse side on the head of deceased Jyana, against Gyarsilal allegation of causing 'lathi' blow on her head on its left side, against Kallu @ Kalyan of delivering a 'lathi' blow on her head.
No doubt, the prosecution witnesses have not only exaggerated but have also somewhat deviated from their version in the first information report, but that by itself cannot be a reason to throw away the entire prosecution case. Shankarlal, the lodger of the first information report was no longer alive to give the statement before the trial court but its co-signatory Sheonarain (PW-1) has appeared in witnesses box to support the prosecution case. All the four accused against whom allegation is made, were named in the first information report. Though specific allegation was made against accused-appellant Ghanshyam of causing 'kulhari' blow from reverse side on the head of deceased Jyana and of snatching her ear-rings and necklace, other accused Gyarsilal, Panchuram and Kalyan were merely named omnibusly with no specific allegation. But in the face the fact that all the eye witnesses are now attributing specific role to these accused, the version in first information report alone cannot be taken as the sole basis for deciding guilt of the accused. Statements of all these eye witnesses will also have to be critically examined to find out as to who was responsible for causing death of deceased Jyana. This court has to therefore undertake the exercise of discovering the truth.
The Supreme court in Ganesh Vs. State of Karnataka (2008) 17 SCC 152, held that it cannot be said as a rule of universal application that when a portion of prosecution evidence is discarded as unworthy of credence, there cannot be any conviction. It is always open to the court to differentiate between an accused, who has been convicted, and those, who have been acquitted. The maxim falsus in uno, falsus in omnibus, is merely a rule of caution. An attempt has to be made to separate the grain from the chaff, truth from falsehood. When prosecution is able to establish its case by acceptable evidence, though in part, accused can be convicted even if co-accused have been acquitted on the ground that evidence led was not sufficient to fasten guilt on them. But where position is such that evidence is totally unreliable, and it will be impossible to separate the truth from falsehood to an extent that they are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by prosecution completely from the context and background against which they are made, conviction cannot be recorded.
Keeping in view afore-noted principle of law, this court has to now undertake an exercise finding out the truth as to who is responsible for causing death of deceased Jyana. However, in the case of the accused-appellant Ghanshyam, there is an important aspect of the matter, which needs to be noticed. That aspect is that unlike other cases where plea of alibi set up by the defence is sought to be supported by the defence witnesses, here, in the present case, as many as five witnesses, namely, Investigating Officer Surendra Singh PW-21 (PW-24 in the trial of accused Ghanshyam), Sudhanshu Saxena (PW-9), Branch Manager of LIC, Tripolia Bazar Branch, Jaipur, Naresh Sharma (PW-10), Administrative Officer in the LIC Branch, Sita Ram (PW-11), Assistant in the LIC Branch, and Ram Gopal (PW-17), Assistant in the LIC Branch, produced in witness box by the prosecution itself, have proved the plea of alibi of accused Ghanshyam. This is indeed a significant factor, which provides credence to his plea of alibi. Originally, the Investigating officer Surendra Singh (PW-21) did not find involvement of accused Ghanshyam proved in the crime. His conclusion was based on the statements of all aforesaid prosecution witnesses. There is another significant aspect of the matter, which would have baring on the case, which is that while all other accused, namely, Gyarsilal, Panchuram and Kalyan have sustained injuries but accused-appellant Ghanshyam did not sustain a single injury, which in the facts of the case, further lends credence to his plea of alibi. Third factor that goes in favour of his plea of alibi is that though in the first information report allegation against him was made of merely inflicting a blow on the person of deceased Jyana but all the eye witnesses in their court statements, have alleged that he inflicted 'kulhari' blow on her head and most of them have qualified this statement by stating that such blow was delivered from reverse side of the 'kulhari'. But no such 'kulhari' has been recovered either at the instance of accused Ghanshyam or any other accused. None of the injuries on the person of deceased Jyana has been opined to have been caused by sharp edged weapon.
The manner in which the prosecution witnesses have tried to improve upon their version with regard to accused Ghanshyam from stage to stage, also lends credence to the plea of alibi set up by him. While recording the written-report, informant alleged that accused Ghanshyam inflicted a blow on the person of deceased Jyana. At this stage, neither the weapon of offence, from which such blow was inflicted nor the part of body, on which such blow was inflicted, was specified. At the second stage, when the statements under Section 161 Cr.P.C. were recorded by the police on 17.06.2000, Sheonarain (PW-1) in Exhibit D-1, Smt. Kamla (PW-3) in Exhibit D-3, Manni (PW-4) in Exhibit D-4, Bhonrilal (PW-5) in Exhibit D-5, Mohanlal (PW-6) in Exhibit D-6, Mangli (PW-7) in Exhibit D-7 and Makhol (PW-9) alleged that accused Ghanshyam inflicted 'kulhari' blow on the head of deceased Jyana. At that stage, these witnesses did not qualify their statements by saying that such blow was delivered from reverse side of 'kulhari'. These witnesses were confronted with this part of their statement during cross-examination but they failed to give any satisfactory explanation why at that stage they did not disclose to the police that accused Ghanshyam inflicted 'kulhari' blow on the head of deceased Jyana from its reverse side. This was introduced for the first time by Manna Lal (PW-2) in his statement (Exhibit D-2) under Section 161 Cr.P.C. recorded by the police on 21.06.2000. Sheonarain (PW-1) in his cross-examination, has stated that he cannot say why the police has not written this in his statement (Exhibit D-1). Mohanlal (PW-6) has also stated that he informed the police that Ghanshyam inflicted 'kulhari' blow on the head of deceased Jyana from its reverse side but he cannot say why the police did not write so in his statement (Exhibit D-6) under Section 161 Cr.P.C. Mangli (PW-7), in her cross-examination, stated that in fact she told the police in her statement (Exhibit D-7) under Section 161 Cr.P.C. that all the accused were having 'kulharis' in their hands but she cannot say why the police mentioned that only Ghanshyam possessed 'kulhari'. Laxmi Narain (PW-12) has also stated that he cannot say why police did not write so in his statement (Exhibit D-10) under Section 161 Cr.P.C., but in the court he made a statement that he saw accused Ghanshyam inflicting 'kulhari' blow on the head of deceased Jyana. In fact, he did not even qualify his statement by saying that Ghanshyam inflicted 'kulhari' blow on her head from reverse side. When confronted with his statement under Section 161 Cr.P.C. (Exhibit D-10), where he simply stated that Ghanshyam inflicted blows also on the person of deceased Jyana by 'kulhari', he has stated that he could not say why the police did not mention about accused Ghanshyam causing injury on the head of deceased Jyana. Nangi (PW-13) also in her statement stated that Ghanshyam inflicted 'kulhari' blow on the head of deceased Jyana and did not qualify such allegation by stating that it was from reverse side. When confronted with her statement given to police under Section 161 Cr.P.C. (Exhibit D-11), she stated that she informed the police that accused Ghanshyam inflicted 'kulhari' blow on the head of deceased Jyana, but she cannot say why the police did not mention so therein. Laxman (PW-14) in court statement has alleged that accused Ghanshyam inflicted 'kulhari' blow from its reverse side on the head of deceased Jyana, but when confronted with his statement (Exhibit D-12) under Section 161, he stated that he cannot say why the police did not mention so specifically therein. Examining the case of the prosecution from either side, neither has deceased Jyana received any injury by sharp edged weapon nor has even otherwise 'kulhari' been recovered. On totality of the evidence, therefore, conviction of accused-appellant Ghanshyam, cannot be sustained.
Contention that the injuries sustained by all the appellants having not been explained to withhold real genesis of the occurrence, therefore, this should entitle them to acquittal, is noted to be rejected for the reason that in fact in the present case both the parties had received injuries in the same incident and therefore it cannot be said that the injuries on the part of the accused-appellants have not been explained. Injuries on the side of the accused, compared to nature and number of injuries received by the complainant party, are quite insignificant. Moreover, Mst. Jyana on the complainant side, lost her life. Investigating Officer Surendra Singh (PW-21) has proved the fact that the accused-appellants sustained injuries in the same incident. Manna Lal (PW-2) has also, in his statement, explained the injuries of the accused. He has stated that when accused Gyarsi, Panchu, Kalyan and Gaura were arrested by the police, they had injuries on their bodies. There are cross-cases between the parties. There are, apart from the deceased, Smt. Nangi, Manni, Kamla, Bhonrilal and Laxminarain, five injured from the side of the complainant party. Dr. Hemant Das Gwalani (PW-25) has proved the injury-report (Exhibit P-43) of Nangi W/o Hanuman, who received four injuries, one of which was stitched wound on the right frontal parietal region. Manni (PW-4) received three injuries vide Exhibit P-44. Kamli (PW-3) received two injuries vide Exhibit P-45. Bhonrilal (PW-5) received two injuries vide Exhibit P-46, one of which being fracture of right spine specula, was grievous. Laxmi Narain (PW-12) received three simple injuries vide Exhibit P-47. Sheonarain (PW-1) received three simple injuries. According to the accused also, there are five injured on their side, namely, Kalyansahai, Panchuram, Gyarsilal, Gaura and Chhota. Laxman (PW-14) has clarified that son of Ghasi had ploughed the agriculture field situated adjacent to the field of Ramnarain, in the afternoon, which proves the allegation against the complainant party that they were forcibly trying to plough the agriculture field, is false. Ghasi and Gaura, respectively father and mother of the accused-appellants, received one grievous injury each. Curiously, defence has not got injury reports of any of the accused, exhibited during trial in this case. In such fact scenario, it cannot be said that there was total absence of explanation in regard to injuries sustained by accused-appellants.
The cited judgments of this court in Sawai Ram, supra, and that of the Supreme Court in Laxmi Singh, supra, would not therefore be of any help to the accused-appellants. In fact, in Dashrath Singh, supra, the Supreme Court held that injuries of serious nature received by the accused in the course of same occurrence would only indicate that there was fight between both the parties. In such a situation the question as to the genesis of the fight, that is to say, the events leading to the fight and which party initiated the attack first, assumes great importance in reaching the ultimate decision. It is here that the need to explain the injuries of serious nature received by the accused in the course of same occurrence arises. If the prosecution fails to give explanation of such injuries, the court has to then consider whether such omission casts a reasonable doubt on the entire prosecution story or it will have any effect on the other reliable evidence available having bearing on the origin of the incident. Much depends on the quality of the evidence adduced by the prosecution and it is from that angle that weight to be attached to the aspect of non-explanation of the injuries, should be considered. There cannot be a mechanical or isolated approach in examining the question whether the prosecution case is vitiated by reason of non-explanation of injuries. In other words, the non-explanation of injuries of the accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic worth of the defence version.
We shall now deal with the case of accused-appellants Gyarsilal, Panchuram and Kalyan. If the statements of prosecution witnesses to the extent of allegation against accused Ghanshyam for inflicting 'kulhari' blow from reverse side, as per version of most of the eye witnesses and from sharp side, as per some of the eye witnesses, is excluded, then the allegation remains only, against accused-appellants Gyarsilal, Panchuram and Kalyan, who were originally convicted by common judgment dated 02.02.2005. Sheonarain (PW-1) has made such allegation against all these three accused-appellants that they inflicted 'lathi' blows on the person of deceased Jyana, after she fell down. Mannalal (PW-2) has, however, stated that accused-appellants Kalyan and Panchu inflicted 'lathi' blows on the person of deceased Jyana, after she fell down. Kamli (PW-3) has stated that after Ghanshyam inflicted a 'kulhari' blow on the head of deceased Jyana, Kallu (Kalyan) inflicted 'lathi' blow on her head and Gyarsilal inflicted 'lathi' blow on her neck. Manni (PW-4) has stated that after Ghanshyam, Gyarsilal inflicted 'lathi' blow on the neck of deceased Jyana and Kalyan also inflicted another 'lathi' blow on her neck. Bhonri Lal (PW-5) has stated that Gyarsilal inflicted a 'lathi' blow on the head of Jyana and Kalyan inflicted another 'lathi' blow on the left side of her head. Mohanlal (PW-6) has stated that Gyarsilal inflicted a 'lathi' blow on the left side of the head of Jyana, and Kalyan Sahai inflicted another 'lathi' blow on right side of her head. Mangli (PW-7) has similarly stated that Gyarsilal inflicted 'lathi' blow on the head of deceased Jyana. Kallu (Kalyan) inflicted 'lathi' blow on her head. Lalluram (PW-8) has stated that Gyarsilal inflicted a 'lathi' blow on her head. Kallu (Kalyan) also inflicted 'lathi' below on her head. Laxman (PW-14), however, stated that Gyarsa inflicted a 'lathi' blow from back side on the neck of deceased Jyana. This witness has however also made allegation against accused Panchu that he inflicted 'lathi' blow on the head of deceased Jyana. Prahlad (PW-15) has alleged that Kalyan Sahai, Panchu and Gyarsilal were giving 'maar-peet' to Sheonarain. They had 'lathis' in their hands. Kalyan inflicted a 'lathi' blow on the person of Nangi, but he does not say as to on which part of the body she sustained injuries.
Clearly, consideration of the statements of eye witnesses produced by the prosecution, show that their statements are not consistent in so far as they attribute two head injuries on the head of deceased Jyana. Accused-appellants Gyarsilal and Kalyan are named by all of them but two of these witnesses, namely, Sheonarain (PW-1) and Laxman (PW-14), have additionally made such similar allegation against co-accused Panchu. Omnibus allegation was made in the first information report against all the accused, except specifically attributing the injuries on the person of deceased Jyana to Ghanshyam. But this court, in view of all above referred to statements of the eye witnesses, is not inclined to disbelieve the entire prosecution case only because categorical version with respect to role assigned to each of the accused was not given in the first information report. At the same time, there is consistency in respect of the attribution of two head injuries on the person of deceased Jyana to accused Gyarsilal and Kalyan by all eye witnesses that renders the additional allegation with respect to assignment of third head injury on the head of deceased Jyana against accused Panchu unbelievable. Version of two of them, Sheonarain (PW-1) and Laxman (PW-14) with respect to causing head injuries by all three accused is unbelievable for the simple reason that in fact deceased Jyana had received only two head injuries, which proved fatal.
Mannalal (PW-2) in the earlier part of his statement, has attributed injuries only to Ghanshyam by 'kulhari' from the reverse side on the head of deceased Jyana and to Ghasiram by 'lathi' from left side of her head but thereafter he has stated that all the members of the accused party started bearing whoever came their way. Kalyan and Panchu also inflicted 'lathi' blows. His statement with respect to Panchu therefore cannot be believed. Kamli (PW-3) has not named Panchu in respect of the injuries of other persons on the complainant side. Manni (PW-4) has generally named Panchu with other accused but not assigned any specific role either in respect of injuries of any injured or even the deceased. But Bhonrilal (PW-5), Mohanlal (PW-6) and Mangli (PW-7) have also made general allegation against him and not attributed any specific injury and have also not attributed any injury on the person of deceased Jyana. Lalluram (PW-8) in the concluding part of the examination in chief, also has made general allegation that Gyarsi, Panchu and Manna inflicted injuries on the person of Jyana. This is the only witness, who named Manna for injuries on the person of deceased Jyana. Makhol (PW-9) has also made general allegation without specific role to accused Panchu. Laxmi Narain (PW-12) has also named accused Panchu with omnibus allegation for causing injuries to other four injured persons of the complainant party. With respect to injury of Nangi he has alleged against Gyarsilal and with respect to his own injuries he has named Kalyan Sahai. Nangi (PW-13) has also generally named accused-appellant Panchu for injuries of Shankarlal. Curiously, however, neither Shankar could be produced as witness by the prosecution because he died nor his injury report was exhibited. Laxman (PW-14) has also generally named accused-appellant Panchu with other accused for participation in the incident and the injuries on the person of Nangi by 'lathi' but Nangi in her statement as PW-13 has not made any such allegation against Panchu.
We are therefore inclined to hold that prosecution has failed to prove the charge of offence under Section 302 or even 304 IPC, against accused-appellant Panchu beyond reasonable doubt. His appeal to that extent therefore deserves succeed. However, at the same time, the conviction of accused-appellants Gyarsilal and Kalyan is liable to be maintained subject to what we hold on the alternative submission made on their behalf that offence in fact would fall in Section 304 Part II IPC.
Adverting now to the alternative submission on the question as to whether accused-appellants, while inflicting those injuries on the person of deceased Jyana and other members of the complainant party, acted in exercise of their right of private defence of person and property and that there was no intention to murder Jyana, in our view, this would decide whether the accused-appellants are guilty of committing culpable homicide amounting to murder punishable under Section 302 IPC or not amounting to murder punishable under Section 304 Part II of the IPC.
The allegation that all the accused appellants were armed with lathis shows that none of them was armed with any deadly weapon. Preparation was not such as would indicate the common object of causing death of any member of the complainant-party. Besides, in the scuffle that has taken place, five members each from both the sides, have also received injuries. In order to therefore appreciate that aspect of law, a few precedents of the Supreme Court may be noticed.
There are two limbs of arguments of the defence on this point. The first argument is that they acted in exercise of their right of private defence of person and property and, therefore, their such act, by virtue of exception carved out in Section 100, would not be an offence. Even if, however, they are held guilty of exceeding their right of private defence, their offence would fall within Exception 2 of Section 300 of the IPC and, therefore, punishable under Section 304 Part II of the IPC. The second argument is that the prosecution evidence has proved that the incident had taken place suddenly and that started with Sheonarain (PW-1) and thereafter Jyana suddenly came there and intervened to save him and, in that process, sustained fatal injuries. Intention of the accused-persons was, therefore, not to kill her. The offence would, in any case, therefore fall in Part II of Section 304 IPC.
On scanning the entire prosecution evidence in this connection, we find that Sheonarain (PW-1) has stated that members of the accused-party initially caught hold of him and pulled him down from the tractor. They subjected him to beating. Thereafter, her mother Jyana came to his rescue. Whereupon, the accused-appellants, as narrated above, inflicted 'kulhari'/'lathi' blows on her head. This witness also admitted in cross-examination that the agriculture land, on which the dispute took place, was actually in possession of Ghasiram, father of accused-appellants, though entered in the name of accused and that this was originally entered in the revenue records in the name of their grandfather. Mannalal (PW-2) has stated that when the accused were beating Sheonarain and his brother, their mother was crying for help. When she intervened to save them, the accused-appellants inflicted blows on her head. This witness in the cross-examination also stated that he cannot say with certainty as to land of which Khasra number was in whose possession and who is recorded khatedar of which khasra. Kamli (PW-3) has also stated that accused initially started beating Sheonarain and thereupon Jyana came there to his rescue and thereafter they inflicted blows on the person of Jyana. She pleaded ignorance about the khasra numbers of the land in possession of Ghasi and Ramnarain, but stated that the cattle shed and the fodder storage of Ghasi were situated in the land recorded in the name of the complainant party. Manni (PW-4) has stated that accused-persons initially started beating Sheonarain and his brother. His daughter-in-law Jyana was then subjected to beating by the accused. This witness has admitted that dispute between the parties was over the land.
Bhonrilal (PW-5), Mohanlal (PW-6) and Mangali (PW-7) have stated that accused persons initially intercepted Sheonarain, who was going to invite their relatives to attend 'sawamani' programme, and started beating him. On hearing hue and cry, his mother rushed there for his rescue. It was stated that accused subjected her to beating. Laxmi Narain (PW-12) stated that Ghasi has built temporary fodder-store close to his house and adjacent thereto is a cattle-shed, and that it was a sudden incident. Nangi (PW-13) stated that her father-in-law Ramnarain and Ghasi (father of accused-appellant) were real brothers. Their houses were constructed on the agriculture land and that their cattle and cattle of the accused-persons were also kept there. Laxman (PW-14) stated that Ramnarain had invited him to attend 'sawamani' programme. Ramnarain sent his grandson Sheonarain to invite his relatives. Sheonarain went on a tractor. Suddenly a noise was heard. Jyana went to his rescue. The accused inflicted blows on her person. Prahlad (PW-15) stated that initially he saw accused Kalyan Sahai, Panchu and Gyarsilal, who had 'lathis' in their hands, beating Sheonarain. Suddenly, Jyana, mother of Sheonarain, came there. She too was beaten by the accused. Investigating Officer Surendra Singh (PW-21) stated that the quarrel suddenly took place between the parties and both the parties sustained injuries. He has proved site plan (Exhibit P-2) and stated that the blood stains were found near the fodder-store and the cattle-shed. The quarrel took place on the question as to who should plough the disputed land. This witness has not given categorical statement as to who was in possession of land of which khasra number and land of which khasra was recorded in whose name. But he has admitted that the site plan (Exhibit D-15), produced by the defence indicating the cattle-shed in possession of Ghasiram Meena. Kanhaiyalal (DW-1) has also proved that Ghasi and Ramnarain are real brothers and they are his relatives. They have divided their agriculture land into half each. As per the family arrangement, however, they decided to retain the part of the land in their actual cultivatory possession. The disputed land was in possession of Ghasi, and Sheonarain wanted to forcibly plough it, which led to the incident.
Two conclusions emerge from analysis of the evidence. First, initially the accused picked a quarrel with Sheonarain and started beating him. Thereafter deceased Jyana came to his rescue and, in that process, she sustained fatal injuries. Second, the land, over which the dispute took place, was, though recorded in the name of Ramnarain of the complainant party, but was in actual possession of Ghasiram, father of accused-appellants. Two brothers, though had divided the agriculture land into half each, while retaining their share of half each but it did not actually correspond to the revenue records. The house of the complainant party was situated on the land recorded in the name of Ghasi, whereas land adjacent to the cattle-shed and fodder-store, for which the dispute took place, though in actual possession of Ghasi, was recorded in the name of complainant party (Ramnarain). Even if the question as to who had the title of the disputed land is not gone into, the fact remains that the accused-appellants were in actual physical possession of the disputed land, but, at the same time, the prosecution evidence clearly proved that it was the accused, who started the incident. In other words, there is no evidence to uphold the contention of the complainant party that they were not the aggressors. In fact, almost all the eye witnesses have proved that it were the accused, who initially caught hold of Sheonarain (PW-1) and started beating him. Moreover, the evidence also proves that Sheonarain was alone when he was overpowered by the members of the accused-party and subjected to beating. Evidence thus does not support the contention that accused could have entertained any such belief that they had any apprehension to their lives or otherwise they had any apprehension, muchless any reasonable apprehension that death or grievous hurt would otherwise be the consequence of the assault on them if they did not retaliate in response. Such an argument cannot be countenanced for the death of deceased Jyana, who, even as per the defence, has actually intervened to save her son. We are, therefore, not persuaded to uphold the argument that the accused-appellants acted in exercise of their right of private defence of person or property.
Now coming to the second limb of the argument that the appellants did not have the requisite intention to murder Jyana @ Amari, in fact the prosecution evidence in this aspect shows that accused-appellants initially picked up the quarrel with Sheonarain and Jyana @ Amari, on hearing his hue and cry, suddenly arrived at the scene of incident and tried to save him. It is in that process that she received fatal injuries. Intervention by deceased Jyana, as per the prosecution case, was sudden. Incident would fall in Exception 4 to Section 300 of the IPC, which takes the case out of the purview of murder. Since the act of the accused-appellants was done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury, as was likely to cause death, their offence would therefore fall within the ambit of Section 304 Part II of the IPC.
Apart from conviction for offence under Section 302/34 IPC, accused-appellants Gyarsilal, Panchu and Kalyan have also been convicted for offence under Section 323 IPC, whereas accused-appellant Kalyan has further been convicted for offence under Section 379 IPC. Conviction of all the three accused under Section 323 IPC has been recorded for injuries sustained by members of the complainant party, namely, Kamli, Manni, Bhonrilal, Nangi and Laxmi Narain. Sheonarain (PW-1), who received three simple injuries, has alleged that while Ghanshyam pulled him down from the tractor and sat on his chest, Kalyan snatched his gold necklace. Gyarsilal, Panchu and Kalyan beat him by 'lathis'. Mannalal (PW-2) has stated that all the accused gave beating to Bhonrilal, Sheonarain, Gyarsa, Nangi, Laxmi Narain, Manni. Kalyan and Panchu were beating Sheonarain. Kamli (PW-3) has alleged that Kalyan snatched necklace of Sheonarain and all the accused subjected female members of complainant party to beating. Bhonrilal (PW-5) has alleged that Ghanshyam, Gyarsilal, Panchu, Kalyan, Ghasiram, Gopal, Ramkishan, Gaura, Dhapu, Kali, Chhota, Raji, Moti and Sarju beat Sheonarain. Gyarsilal inflicted a 'lathi' blow on his left armpit and left leg. Gyarsilal also inflicted 'lathi' blow on the head of Nangi. Kalyan delivered a 'lathi' blow on the head of Laxmi Narain. Panchuram broke the fingers of Shankarlal's hand. He also inflicted injury on the hand of his mother Manni. Mohanlal (PW-6) has stated that Gyarsilal inflicted a 'lathi' blow on the head of her mother Nangi Devi. Kalyan also inflicted a 'lathi' blow on the head of his brother Laxmi Narain. Panchuram inflicted a blow on the hand of his brother Shankar leading to fracture of his fingers. Kalyan snatched gold necklace of Sheonarain. Ghanshyam snatched the gold necklace and ear-rings of his mother Jyana. Mangli (PW-7) stated that Gyarsilal subjected Nangi to beating. Gyarsilal beat Nangi and Shankarlal. He also beat Shankarlal, whose three fingers of the hand were broken. Panchu inflicted a 'lathi' blow on the head of Laxmi Narain. Gyarsilal, Gaura and Ghasi beat Bhonrilal. Lalluram (PW-8) has alleged that all the accused, namely, Gyarsi, Kallu, Gopal, Ramkishan, Ghanshyam and their wives beat the injured. Kalyan inflicted 'lathi' blow on the head of Laxmi Narain. Makhol (PW-9) has also named all the accused on allegation of beating. Gyarsilal inflicted a blow on the person of injured Nangi. Kalyan delivered a 'lathi' blow on the head of Laxmi Narain. Panchuram snatched a gold necklace of Sheonarain. Ghanshyam snatched the necklace and ear-rings of Mrs. Jyana. Laxmi Narain (PW-12) has named all the accused on allegation of beating injured Shankarlal, Bhonrilal, Sheonarain and Nangi. Nangi (PW-13) has stated that accused Gyarsi inflicted a 'lathi' blow on her head when she was trying to save Jyana. She received injuries on her head which had to be stitched. Panchu inflicted a 'lathi' blow on Shankar leading to fracture of fingers. Laxman (PW-14) has alleged that Kalyan snatched the gold necklace of injured Sheonarain. Kalyan also inflicted a 'lathi' blow on the head of injured Shankar. Prahlad (PW-15) has stated that Kalyan inflicted a 'lathi' blow on Nangi. Panchu inflicted a 'lathi' blow on the hand of Shankar leading to fracture of his fingers, and also a 'lathi' blow on the head of Laxmi Narain. Gyarsi caused an injury on the person of Bhonrilal. Kalyan snatched the gold necklace of Sheonarain. This evidence clearly show that while Kalyan has rightly been convicted for offence under Section 379 IPC because most of the witnesses have stated that he snatched the gold necklace of Sheonarain. The gold necklace has also been recovered at the instance of Kalyan vide Exhibit P-5. Besides, the witnesses, especially the injured witnesses, have made consistent allegations against Gyarsilal, Kalyan and Panchu, of causing injuries to aforenamed five injured, which is substantially corroborated from their injuries. Conviction of accused-appellants Gyarsilal, Kalyan and Panchu for offence under Section 323 IPC was also therefore fully justified.
We are inclined to uphold the contention of the learned Public prosecutor that the incident in the present case unfolded into two stages. The first part started when the accused pulled down injured Sheonarain from the tractor and subjected him to beating. When his mother Jyana came to his rescue, accused-appellants inflicted 'lathi' blows on her head leading to her instantaneous death. It was at that stage that accused-appellants Gyarsilal and Kalyan formed requisite common intention for commission of offence of culpable homicide not amounting to murder for killing of Jyana.
The second stage of the incident started after Jyana fell on the ground having received two severe blows on her head on the hands of accused Gyarsilal and Kalyan. Thereafter other members of the complainant party reached the scene of occurrence and then it was a case of free fight in which five members each on both the sides received injuries, although Sheonarain, one of the members of the complainant party had already been subjected to beating in the first stage of the incident. In the case of free fight each accused has to be held individually responsible for his own act and therefore conviction of the three accused-appellants for offence under Section 323 simplicitor, cannot be faulted.
It is well settled that common intention can develop even in the course of the incident. The Supreme Court in Mrinal Das & others v. The State of Tripura, (2011) 9 SCC 479, held that existence of common intention amongst the participants in the crime is the essential element for application of Section 34 and it is not necessary that the acts of several persons charged with the commission of an offence jointly must be the same or identically similar. It is also not necessary that individual act of the accused persons has to be proved by the prosecution by direct evidence. Common intention has to be inferred from proved facts and circumstances. Burden lies on prosecution to prove that the actual participation of more than one person for commission of criminal act was done in furtherance of common intention which can be developed on the spur of moment.
The Supreme Court in Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646, held that common intention means a pre-oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop at the spur of moment between a number of persons with reference to the facts of a given case. Common intention in the present case can be, on these facts of the case, inferred to have suddenly develop at-least between the accused Gyarsilal and Kalyan.
In the result, both the appeals are disposed of in the manner indicated below:-
Appeal filed by appellant Ghanshyam deserves to succeed and the same is allowed. He is acquitted of the charges for the offence under Section 302/34 IPC. His sentence was suspended by this court vide order dated 13.04.2007 in D.B. Criminal Misc. Bail Application No.234/2007, thus he is on bail and need not to surrender.
Conviction of accused-appellants Gyarsilal and Kalyan under Section 302/34 IPC is altered to one under Section 304 Part-II read with Section 34, IPC. Their conviction and sentence for offence under Section 323 IPC is upheld. Conviction and sentence of accused-appellant Kalyan for offence under Section 379 IPC is also upheld. Their sentence for offences under Sections 304 Part II, 323 and 379 IPC would run concurrently.
Accused-appellant Gyarsilal, who has remained behind the bars for about 8 years and 11 months, is sentenced to the period already undergone by him for his conviction for offence under Section 304 Part-II read with Section 34 IPC. He is in jail. He be set at liberty forthwith.
Accused-appellant Kalyan is sentenced to suffer seven years rigorous imprisonment with fine of Rs.500/- for his conviction for offence under Section 304-II read with Section 34 IPC. In default of payment of fine, he shall be further liable to undergo six months rigorous imprisonment. He is on bail as his sentence was suspended by order of this Court dated 10.05.2005. He is directed to surrender immediately before the trial court, who will take him into custody and send him to jail to serve out the remaining sentence of imprisonment. In case accused-appellant Kalyan does not surrender within one month, the trial court shall take necessary steps to take him into custody and send him into jail to serve out the remaining sentence of imprisonment.
Accused-appellant Panchu is acquitted of the charge under Section 302 read with Section 34 IPC. His conviction for offence under Section 323 IPC and sentence of rigorous imprisonment of six months, is upheld. He has already served out sentence of 7 months and 17 days during investigation, trial and pendency of appeal. He is on bail as his sentence was suspended by order of this court dated 10.05.2005. He needs not to surrender.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely, Ghanshyam, Gyarsilal and Panchu, 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, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, these appellants, on receipt of notice thereof, shall appear before the Supreme Court.
(Banwari Lal Sharma) J.
(Mohammad Rafiq) J.
//Jaiman// All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW