Rajasthan High Court - Jaipur
Khem Chand vs State Of Rajasthan on 1 April, 1986
Equivalent citations: 1986(1)WLN534
JUDGMENT Gopal Kishan Sharma, J.
1. This appeal is preferred against the judgment of Additional Sessions Judge, Deeg dated 16-4-1985 whereby he convicted the appellant under Section 302 IPC and sentenced him to life imprisonment and a fine of Rs. 500/-, in default of payment of fine, to further undergo 6 months' imprisonment.
2. The prosecutiou case is that on 12-6-1984 at 8.45 a.m. Mohansingh lodged a report at police section Sikri alleging that today at 7-7.30 a.m. Khem Chand, Laxmi Mst. Kampo, Munni, Harikishan Sukhdeo and Phool Chand came to the 'Nohra' of the complainant in a Tractor and they started filling the manure which was lying in the Get. It is alleged that this manure belongs to the complainant and he obstructed the accused persons. Khem Chand spoke that it belongs to them and they will take it away. Khem Chand then asked his companions to beat him. Phool Chand took out 'Ballum' from the Troly, Khem Chand took out axe and other accused persons took out lathies. Phool Chand inflicted 3 Ballum blows on the head of Mohan Singh. Hearing the cry of Mohan Singh his brothers Kalu, Madan and his uncle Jhhabdu and mother came to rescue him but all were beaten up the accused persons. Khem Chand inflicted axe blow on the head of Chhabdu. After beating them the accused persons went away. Mohan Singh came to Police Station, Sikri and lodged the report at 8.45 a.m. The police registered the case Under Sections 147, 148, 307, 325, 324, 323/149 IPC. On 13-6-1984 Jhhabdu died in the hospital and the case was converted into 302 IPC. After completing the investigation the police submitted challan against 7 accused persons in the court of A.M.J.M., Deeg who committed all the 7 accused persons to the court of Addl. Sessions Judge, Deeg.
3. The Addl. Sessions Judges Deeg framed charges against all the 6 accused persons except Khem Chand Under Sections 148, 302/149, 325/149 324/149 and 323 IPC. He framed charged against Khem Chand under Section 148, 302, 325, 324/149 and 323 IPC. All the accused persons pleaded not guilty and claimed trial.
4. The prosecution examined 9 witnesses to prove its case. The accused persons also examined 5 witnesses in their defence. The contention of the accused is that the manure belongs to them that they were bringing that manure when the complainant party came and bet them. They also received injuries.
5. The Learned Addl. Sessions Judge, after concluding trial found that no case is made out against Phool Chand, Harikishan, Sukhdeo, Mst. Laxmi, Mst. Kampo, Mst. Munni and acquitted all these accused persons from the charges framed against them. The Addl. Sessions Judge found accused Khem Chand guilty of the offence under Section 302 IPC. He did not find Khem Chand guilty of the offence under Section 147, 148, 325, 324/149 IPC and acquitted him from all these charges. He however, for the offence under Section 302 convicted Khem Chand for life imprisonment and a fine of Rs. 500/-, as mentioned above.
6. The prosecution case is that all the accused persons came in the Tractor and they wanted to take away the manure. When Mohan Singh and others objected they were beaten. Jhhabdu tried to rescue and he was also inflicted axe blow by Khem Chand. He was admitted in the hospital and on the next day be succumbed to his injuries. Dr. Ashok Kumar Gupta PW 1, examined the injuries of Jhhabdu on 12-6-1984 and he found 4 injuries out of them 3 injuries were incised wounds on the head. Doctor has further in his statement stated that on 13-6-1984 Jhhabdu died in the hospital and he conducted the post-mortem on the dead body of Jhhabdu. The post-mortem report is Ex. P 2. In this postmortem report the Doctor has mentioned the following injuries on the body of Jhhabdu:
¼1½ ,d dVk gqvk ?kko 3 xq.kk 1 gM~Mh rd xgjk] flj ds nkfguh rjQ Fkk A bl pksV dk ----- fd;k x;k Fkk A ;g pksV rst /kkj gfFk;kj dh Fkh A ¼2½ ,d dVk gqvk ?kko 2 xq.kk 5 gM~Mh rd xgjk] flj ds mij chp es A bl pksV dk Hkh ------fd;k x;k Fkk ;g pksV Hkh rst /kkjnkj gfFk;kj ls dh x;h FkhA ¼3½ ,d dVk gqvk ?kko 6 xq.kk 1 gM~Mh rd xgjk] flj es ckbZ rjQ fd;k x;k Fkk ;g pksV Hkh rst /kkjnkj gfFk;kj dh Fkh A ¼4½ ,d lwtu okys gksB ij 6 xq.kk 3 vUnj ds rjQ dh [kky dVh&QVh Fkh rFkk [kwu vk jgk Fkk A nksuks ds mij ds nkar VwVs gq, fudys gq, Fks Ankarks ds xMs es [kwu fjl jgk Fkk A;g pksV xaHkhj Fkh rFkk HkksVs vkys ls yxkbZ Fkh A mDr pkjks pksVks ls [kwu fjl jgk Fkk A pksVs rktk yxkbZ gqbZ Fkh A ejht dh lkekU; fLFkfr vPNh ugh FkhA og csgks'k Fkk A vkW[kks dh iqrfy;ka :dh gqbZ Fkh rFkk FkksMh QVh gqbZ lh FkhA ejht ds ifgpku fpUg ----------ij fgLlk -------------ntZ gS A ---------------------------esjk dyeh o ---------------------nLr[rh gS A cnq dks mlh fnu rkjh[k 12&6&1984 dsk gekjh fMLisUljh es HkrhZ fd;k x;k Fkk Aog fnukad 13&6&1984 dh lqcg 5 ,-,e- ij LoxhZ; gks x;s A mlh fnu lqcg 8 ,-,e- ij eSus >cnq dk 'ko ijh{k.k fd;k A mlds 'kjhj ij okg~; pksVs os gh Fkh tks -----------es crkbZ xbZ gS 'ko ijh{k.k izfrosnu es eSus bu pksVks dks mYysf[kr fd;k gS A 'ko [kksyus ij fuEu fLFkfr ik;h xbZ %
7. Doctor Gupta opined that the probable cause of death is fracture of left partial bone on head leading to haemahorrage and compression of brain ultimately leading to death. There is no reason to disbelieve the statement of Dr. Gupta. It is also not disputed by the accused persons that Jhhabdu died on account of injuries. Therefore, the death of Jhhabdu was homicidal in nature.
8. The prosecution submitted challan against 7 persons. All the accused persons in pursuance of their common object of taking manure arrived at the field of complainant. When they were obstructed they gave beating. But the learned Addl. Sessions Judge did not agree with the prosecution that the accused persons had framed an unlawful assembly. He, therefore, acquitted all the 7 accused persons of the charge of the forming an unlawful assembly. He, acquitted those accused persons from all the charges framed against them. The accused Khem Chand was only convicted of the offence under Section 302 IPC and for other charges he was also acquitted. Therefore, the case is only under Section 302 IPC against Khem Chand. It is to be seen whether Khem Chand is the author of the fatal injury which caused the death of Jhhabdu.
9. The learned Counsel for the appellant argued that Khem Chand has been convicted for the offence under Section 302 IPC. It was for the prosecution to prove that the fatal injury oh account of which Jhhabdu died was inflicted by appellant Khem Chand. This fact has not been established by the prosecution from their evidence. The learned Addl. Sessions Judge failed to appreciate the evidence and has incorrectly held appellant Khem Chand guilty of the offence under Section 302 IPC. According to the prosecution story and the Doctor's report Jhhabdu 'deceased' received 3 incised wounds on the head. Injury No. 1 was on the left parital region of the head above forehead of left side. Injury No. 2 is the incised wound on head on the right parital region Injury No. 3 is the incided wound bone deep on the head between injury No. 1 & 2. According to Dr. Gupta's statement injury No. 1 i.e. incised wound on the left parital region is the cause of the death of Jhhabdu. He has stated that on account of this injury No. 1 there was haemohrrage and there were fractures which resulted in the death. He has specified that this injury No. 1 is sufficient in the ordinary course of nature to cause death. Thus, according to Dr. Gupta's statement who examined the injuries of the deceased and also conducted the postmortem injury No. 1 is the only injury which caused the death of Jhhabdu.-The Doctor has not stated that injury No. 2 which is on the right parital region and injury No. 3 which is on the head in between injury No. 1 & 2 are also the cause of the death. The Doctor was not even cross-examined on this point as to whether injury No. 2 and 3 are individuallay or collectively sufficient to cause death of Jhhabdu. According to the Doctor injury number 1 alone is the cause of the death and not injury No. 2 and 3 individually or collectively.
10. Thus, the position is very clear Injury No. I which is on the left parital reason is the cause of death of Jhhabdu. Who inflicted' this injury is to be seen now.
11. In the report Ex. P 10 Mohan Singh has stated that Khemchand inflicted axe blow on the head of Jhhabdu. He has not stated that Khem Chand inflicted more than one blow on the head of Jhhabdu. From the blows mentioned in this report it is clear that Khem Chand inflicted only one axe blow on the head of Jhhabdu. Mohan Singh PW 2 in his statement has stated that Khem Chand had axe in his hand and he inflicted axe blow on the head of Jhhabdu. He has not stated in his examination-in-chief that Khem Chand inflicted more than one blow on the head of Jhhabdu. No doubt, in the cross-examination Mohan Singh has stated that Khem Chand inflicted two axe blows on the head of Jhhabdu. This statement is contrary to his report Had it been a fact that Khem Chand inflicted 2 axe blows on the head of Jhabdu, Mohan Singh would have been mentioned in the report Ex. P 10 that Khem Chand inflicted 2 axe blows on the head of Jhhabdu. He has stated in his statement that Khem Chand inflicted 2 axe blows but in the cross examination he stated that Khem Chand inflicted two axe blows on the head of Jhhabdu. Kallo PW 6, stated in her main statement that Khem Chand inflicted axe blow on the head of Jhhabdu. She too has not Stated that Khem Chand gave more than one blow. The answer in the statement indicates that Khem Chand only inflicted one axe blow but in the cross-examination she has stated that Khem Chand inflicted two axe blows and except him no other accused inflicted axe blow on Jhhabdu. Thus, according to Kallo Khem Chand inflicted two axe blows. In this way she corroborated the statement of Mohan Singh. But the other witnesses have contradicted both these witnesses. Paltu PW 3 has stated that he Saw that Khem Chand inflicted one axe blow on the head of Jhhabdu. He inflicted this blow from the front side of Jhhabdu. He has further stated that he saw only inflicting one axe blow. On account of this blow Jhhabdu 'fell down and thereafter he was not beaten. It means, that Khem Chand inflicted only one axe blow. No other accused persons inflicted any blow to Jhhabdu PW 4, Moola has stated that Khem Chand inflicted axe blow on the head of Jhahbdu. In the cross-examination he has clearly stated that Khem Chand inflicted only one axe blow to Jhhabdu and that also from front side. Kallu Ram PW 5 has stated in his statement that Khem Chand inflicted axe blow to Jhhabdu. So this witness has also stated that Khem Chand inflicted axe blow but he has not stated that he inflicted more than one blow. Madan PW 7, has stated that Khem Chand inflicted axe blow to Jhhabdu on his head and in the cross-examination he has stated that Jhabduhad only one injury by axe. Thus, from the prosecution evidence itself it is clear that Khem Chand inflicted only one axe blow on the bead of Jhhabdu. The statement of Mohan Singh PW 1 and Kallu PW 6 are unbelievable who have stated that Khem Chand inflicted;two axe blows on the head of Jhhabdu. Khem Chand as stated by prosecution witnesses inflicted only one axe blow on the head of Jhhabdu.
12. According to Dr. Gupta Jhhabdu had 3 incised wounds on the head. Thus, 3 injuries are at different-different places. One of the injury is on the left parital region another injury is on the right parital region and the third injury is in between injury 1 and 2 i.e. in the middle of the head. It is not the case of the prosecution that all these injuries were caused by single blow. Dr. Gupta has also not stated that all these 3 incised wounds were result of one blow. These injuries are on different-different places of the head and they could only be caused by 3 blows. It was for the prosecution to prove who gave these 3 blows by a sharp weapon. According to the evidence of prosecution witnesses Khem Chand had inflicted only one axe blow on the bead of Jhhabdu. We are also of this opinion after perusing the evidence that Khem Chand appellant inflicted only one blow by axe on the head of Jhhabdu. Now the question is at which place Khem Chand hit the axe. Out of these incised wounds, which was caused by appellant Khem Chand. The prosecution should have established that Khem Chand appellant is the author of injury number 1 which caused the death of Jhhabdu. None of the prosecution witnesses have stated that Khem Chand inflicted axe blow on the left parital region. On the other hand the evidence is that Khem Chand inflicted axe blow from the front side of Jhhabdu. By giving blow from the front side would result injury on the middle of the head and Jhhabdu had one injury i.e. injury No. 2 in the middle of the head. Thus, according to prosecution evidence Khem Chand is the author of injury No. 2 but it cannot be said that Khem Chand is the author of injury No. 1 and the injury No. 3. Khem Chand inflicted only one blow and the too from the front side and that hit Jhhabdu in the middle of the head which caused injury No. 2. It cannot be said Khem Chand inflicted injury No. 1 and injury No. 3. Therefore, the prosecution has completely failed to prove that injury No. 1 which was on the left parital region of the head was inflicted by Khem Chand appellant. This much is proved by the prosecution witnesses that Khem Chand inflicted one axe blow on the head of Jhhabdu. Out of 3 incised wounds according to the evidence of the prosecution witnesses injury No. 2 was inflicted by Khem Chand. So, it has been established that Khem Chand inflicted injury No. 2 in the middle of the head of Jhhabdu but it cannot be said that he inflicted the injury No. 1 on the left parital region which caused the death of Jhahbdu. The learned Addl. Sessions Judge has failed to appreciate the evidence in a proper way. We, therefore, do not agree that Khem Chand appellant is the author of the fatal injury i.e. injury No. 1 to Jhhabdu "deceased". Thus, the finding of the learned Addl. Sessions Judge that Khem Chand is the author of all the 3 incised wounds inflicted to deceased Jhhabdu is incorrect and we don't agree with him.
13. The learned Counsel for the appellant argued that the manure in dispute belongs to the accused persons and they were bringing manure in their tractor. The complainant party had no right over this manure as well as over the field where this manure was lying. In this regard we have perused the entire record of this case and find that both the parties have failed to prove as to who was in possession of the manure as well as the place where it was lying. It is not material to give finding about the possession. It is an admitted position that both the parties sought each other. The learned Addl. Sessions Judge also in his judgment held that there was free-fight between both the parties in which both the parties received injuries. It is not disputed that some of the accused persons also received injuries. So in a free-fight some of the complainant party men apart from Jhnabdu also received injuries. There in a free-fight as held by Addl. Sessions Judge, both the parties inflicted blows to each other. It was argued that the prosecution has failed to explain the injuries to accused persons and this creates doubts in the correctness of the prosecution story. It was also argued that in the facts and circumstances of this case offence under Section 302 IPC is not made out but at the most a case under Section 324 is made out.
14. We have considered arguments advanced by both the learned Counsels at length. The evidence is that only one axe blow was inflicted by Khem Chand appellant while deceased had 3 incised wounds on the head. The injury No. 1 was fatal but it has not been proved that Khem Chand appellant is the author of this injury No. 1. No doubt, there are 3 injuries on head by a sharp weapon. No other witness has stated that apart from Khem Chand other accused also inflicted injury by sharp weapon on the head of Jhhabdu. How Jhhabdu received 3 incised wounds on his head. The evidence against Khem Chand is that he only inflicted one blow by axe. It is doubtful who inflicted injury No, 1 to Jhhabdu which resulted in his death. When a doubt is created, the benefit of doubt must go to accused. Khem Chand had inflicted axe blow on the head of Jhhabdu but he has not given the fatal blow i.e. injury No. 1. Therefore, Khem Chand cannot be con-victed under Section 302 IPC. He had no doubt, inflicted axe blow on the head of Jhhabud and Jhhabdu had incised wounds. So a case under Section 324 IPC is made out against Khem Chand.
15. Ram Lal Appellant v. Delhi Administration, Respondents in their Lordships have observed as under:
No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one blow with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by on the head had proved fatal. Since the evidence clearly disclosed that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstances, the appellant's conviction under Section 302-IPC was plainly incorrect.
16. The case of Ram Lal(supra) helps the contention of the learned Counsel for the appellant. It also helps in arriving to our conclusion that in the circumstances of this case the appellant cannot be convicted Under Section 302 IPC but a case Under Section 324 IPC is made out against him.
17. The Learned Counsel for the appellant has cited Lakshmi Singh and others etc. v. State of Bihar in their Lordships have observed as under:
In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. AIR 1168 SC 1981 and AIR 1975 SC 1674, Rel. on.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witneses or where the defence gives a version which competes in probability with that of the prosecution one.
There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
18. We perfectly agree with the principle laid down by their Lordships in Lakshmi Singh's case (supra) but it does not help the appellant looking to the facts and circumstances of the present, case here it is clear from the prosecution evidence beyond reasonable doubt that appellant and other companions inflicted blows to complainant party. No doubt, the other accused persons have been acquitted but Khem Chand has been convicted for inflicting injury. The evidence is consistent and credit-worthy and it has proved that there was free-fight between both the parties and in that free-fight both the parties received injuries. Therefore, non-explanation of the injuries of the accused persons is not fatal in the present case.
19. It was also argued by the learned Counsel for the appellant that in the right of private defence of property they inflicted the injuries so it cannot be inferred that the accused appellant had intention to commit murder. We agree to this argument. There is no evidence to prove that Khem Chand had any intention to commit murder of Jhhabdu. As we have held above that the case Under Section 302 IPC is not made out against him but a case Under Section 324 is made out. Khem Chand has used axe for inflicting blow. Axe is a sharp weapon. Section 320 IPC defines grievous hurt. The Doctor has not opined that injury No. 2 and 3 on the head of deceased Jhhabdu were grievous in nature. These injuries No. 2 and 3 were inflicted by a sharp weapon and as we have held above Khem Chand is the author of injury No. 2 only. This injury is by a sharp weapon but it is not a grievous injury. Therefore, this injury No. 2 cannot be taken as grievous as defined in Section 320 IPC. This injury No. 2 was caused by a sharp weapon and is only a simple in nature. Therefore, Khem Chand is found guilty of the offence Under Section 324 IPC only.
20. Asa result the appeal is partly accepted. The appellant is not found guilty of the offence Under Section 332 IPC and his conviction and sentence for this offence are set-aside. The appellant is found guilty of the offence Under Section 324 IPC and sentenced to 3 years' rigorous imprisonment. The accused is in jail and he be detained in jail to undergo the above sentences awarded to him.