Rajasthan High Court - Jodhpur
State Of Rajasthan vs Mukan Singh And Ors on 17 November, 2022
Bench: Sandeep Mehta, Farjand Ali
(1 of 21) [CRLA-139/1992]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1.) D.B. Criminal Appeal No. 139/1992
1. Bhagirath,
2. Shanker Lal,
3. Omla,
4. Shyamla,
(All sons of Mukand Singh Purohit)
5. Mukand Singh son of Bakhtawar Singh Purohit.
6. Girdhari Singh son of Hadman Singh Purohit.
7. Nirana Ram son of Nathi Ram Suthar
(All residents of P.S. Sardar Shahar, District-Churu)
(All the accused person are lodged at Churu Jail)
----Appellant
Versus
State Of Rajasthan
----Respondent
Connected With
(2.) D.B. Criminal Appeal No. 283/1992
State Of Rajasthan
----Appellant
Versus
1. Mukan Singh son of Bakhtawar Singh, B/c Purohit, R/o
Patalisar.
2. Nirana Ram S/o Nathu Ram, B/c Suthar, R/o Patalisar,
3. Shanker Lal S/o Mukan Singh, B/c Purohit, R/o Patalisar,
4. Girdhari Singh S/o Hadman Singh, B/c Purohit, R/o Patalisar,
5. Shyamla S/o Mukan Singh, B/c Purohit, R/o Patalisar,
6. Omla S/o Mukan Singh, B/c Purohit, R/o Patalisar,
7. Bhagirath S/o Mukan Singh, B/c Purohit, R/o Patalisar,
(All lodged Police Station-Sardarshahar, Churu)
----Respondent
(3.) D.B. Criminal Appeal No. 221/1994
State Of Rajasthan
----Appellant
Versus
1. Mukan Singh son of Bakhtawar Singh, B/c Purohit, R/o
Patalisar.
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(2 of 21) [CRLA-139/1992]
2. Nirana Ram S/o Nathu Ram, B/c Suthar, R/o Patalisar,
3. Shanker Lal S/o Mukan Singh, B/c Purohit, R/o Patalisar,
4. Girdhari Singh S/o Hadman Singh, B/c Purohit, R/o Patalisar,
5. Shyamla S/o Mukan Singh, B/c Purohit, R/o Patalisar,
6. Omla S/o Mukan Singh, B/c Purohit, R/o Patalisar,
7. Bhagirath S/o Mukan Singh, B/c Purohit, R/o Patalisar,
(All lodged Police Station-Sardarshahar, Churu)
----Respondent
For Appellant(s) : Mr. Manish Sisodia, Senior Advocate,
assisted by Mr. Yogendra Singh
For Respondent(s) : Mr. B.R. Bishnoi, PP
Mr. Pawan Singh Bhati, on behalf of
Mr. I.R. Choudhary
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI
JUDGMENT
Date of pronouncement : _17/11/2022
Judgment reserved on : 12/09/2022
BY THE COURT : PER HON'BLE MEHTA, J.
These three appeals are directed against the judgment dated 25.03.1992 passed by the learned Sessions Judge, Churu in Sessions Case No.33/1990, whereby accused Mukan Singh, Nirana Ram, Shankar Lal, Girdhari Singh, Shyamla, Omla and Bhagirath have been convicted and sentenced as below :-
Offcene for which Sentence and fine awarded convicted Section 304 Part I read Five years' rigorous imprisonment with Section 149 IPC alongwith a fine of Rs.500/- Section 325 read with One year's rigorous imprisonment Section 149 IPC alongwith a fine of Rs.100/-
Section 323 read with Six months' rigorous imprisonment Section 149 IPC Section 148 IPC One year's rigorous imprisonment Section 447 IPC Three months' rigorous imprisonment (Downloaded on 17/11/2022 at 09:05:07 PM) (3 of 21) [CRLA-139/1992] It is relevant to note here that the accused appellants were charged for the offences punishable under Section 302 read with Section 149 IPC and Section 307 read with Section 149 IPC. However, the trial court while toning down the offence under Section 302 read with Section 149 IPC, convicted the accused appellants for the offence punishable under Section 304 Part I read with Section 149 IPC and acquitted them from the offence punishable under Section 307 read with Section 149 IPC.
While the accused persons have approached this court by way of D.B. Criminal Appeal No.139/1992 filed under Section 374 (2) CrPC for challenging their conviction and sentences awarded to them by the trial court, the State of Rajasthan has filed Criminal Appeal No.221/1994 under Section 378 (i) & (iii) CrPC for assailing acquittal of the accused from the charges punishable under Sections 302 read with Section 149 IPC and 307 read with Section 149 IPC and D.B. Criminal Appeal No.283/1992 under Section 377 CrPC seeking enhancement of sentences awarded to the accused.
Briefly stated, facts relevant and essential for disposal of the appeals are noted hereinbelow :-
Radhakishan (P.W.1) lodged an oral report at the Police Station Sardar Shahar on 03.11.1989 at about 05.00 p.m. alleging inter alia that their agricultural land was located in the Village Dega Ki rohi, where his parents had constructed a hut and used to reside therein. They had sown crops in the field. In the afternoon of 03.11.1989 at about 02.30 p.m., the first informant purchased some household articles for his parents and reached their dwelling (Downloaded on 17/11/2022 at 09:05:07 PM) (4 of 21) [CRLA-139/1992] and there, he saw the dead body of his father Shri Gorakh Singh lying in the adjoining field of Bhanwar Singh. His mother Smt. Bhanwari was also lying nearby in injured condition. The neighbouring field owners Aadu Ram and Naan Ji, residents of Patalisar, were sitting nearby. He asked his mother Bhanwari as to what happened, on which she told that she and his father Gorakh Singh were lying down inside the hut talking to each other, when suddenly, in the middle of the night, at about 12.00-01.00 o'clock, Mukand Singh son of Bakhtawar singh, Bhagirath, Shankar Lal, Omla, Shyamla sons of Mukand Singh, Girdhari Singh son of Hadman Singh and Nirana Ram son of Nathi Ram, all residents of Village Patalisar, Sardar Shahar came there. Bhagirath was having an iron Jei, while the others were having lathis in hand. No sooner these accused entered into their hut, Bhagirath shouted that they should be killed and thus, the land would be released.
Saying so, Bhagirath gave a blow of iron pronged jei on the hand of her husband Gorakh Singh. Nirana Ram gave a blow of lathi on her face. Others started hitting Shri Gorakh Singh by Jeis, lathis, etc. Both were dragged out and indiscriminately assaulted in front of the hut. Bhagirath gave a Jei blow, fracturing Smt. Bhanwari's hand. Shri Gorakh Singh was beaten by Mukan Singh, Bhagirath, Girdhari, Narayan, Omla, Shyamla and Shankar by lathis, Jeis etc. Feeling confident that both the victims had died, they lifted and threw them nearby the field of Bhanwar Singh Purohit. They also stole some goods from the Dhani. Some articles were thrown out.
Aadu Ram and Naan Singh came to the place of incident and upon seeing them, the accused fled away. It was pertinently alleged that serious enmity was prevailing between the accused party and (Downloaded on 17/11/2022 at 09:05:07 PM) (5 of 21) [CRLA-139/1992] the complainant party owing to old land dispute and with this motive, parents of the complainant were assaulted, wherein his father expired and his mother was brutally injured.
On the basis of this oral report of Shri Radhakishan, an FIR No.217/1989 (Ex.P/1) came to be registered at the Police Station, Sardar Shahar for the offences under Sections 302, 307, 147, 148, 149, 447 and 323 IPC and investigation was assigned to Shri Kishan Lal, (P.W.12), SHO, Police Station Sardar Shahar, who proceeded to the place of incident. The injured Bhanwari was sent to the hospital for treatment and the dead body of Shri Gorakh Singh was sent to the hospital for autopsy. The Medical Jurist Dr. Jatan Lal Baid posted at the Government Hospital, Sardar Shahar, undertook autopsy upon the dead body of Shri Gorakh Singh and noticed the following injuries on his body :
1. Lacerated wound 2" x 1 ½" bone deep on the right parietal area.
2. Lacerated wound 2 " x 1 ½" x ¼ " on the left side of the face.
3. Abrasion 2 ½" x 1 ½" on the left shoulders.
4. Contusion 2 ½" x 2" on the left scapular area.
5. Abrasion 1 ½" x 1" on the right shoulder.
6. Contusion 3" x 1 ½" on the left intra scapular area.
7. Abrasion 4 each 1 ½" long on left supra scapular area.
8. Abrasion 7 each 1 ½" x ¼ " on the left side of lower back.
9. Abrasion 5 each 1 ½" each on the right side of back.
10. Abrasion 3 ½ " long on the lower part of right buttock. (Downloaded on 17/11/2022 at 09:05:07 PM)
(6 of 21) [CRLA-139/1992]
11. Contusion 2 ½" x 2" on the right buttock.
12. Lacerated wound ½" x ¼ " x 1/6" on the medial side of left lower leg.
13. Lacerated wound 1" x ½" x ¼" on the middle part of right leg anteriorly.
14. Contusion 3 - 2 ½" x 1" on the back of left elbow of forearm.
15. Abrasion 2 x 1 ½" on the lateral side of left upper arm in lower area.
16. Contusion 4 ½" x 2" on the back of left upper arm in the lower part.
17. Lacerated wound 2" x 1" bone deep with fracture of lower 1/3 on tibia bone medially bone pieces coming out of left lower leg.
18. Swelling 4" x 2 ½" of the lower 1/3rd area anterio-posteriorly with fractures on both bones left forearm.
19. Contusion 4" x 1" on the right side of lower chest anteriorly with fracture on 9th and 10th rib.
20. Contusion 3" x 1 ½" on the left side of upper abdomen anterio-laterally.
21. Abrasion 2 ½" x 1 ½" on the medial side of right elbow.
He issued the postmortem report (Ex.P/28) opining that cause of death of Shri Gorakh Singh was shock due to multiple injuries and rupture of spleen leading to extensive internal and external haemorrhage. The injuries of Smt. Bhanwri were also examined and the injury report Ex.P/30 was issued.
(Downloaded on 17/11/2022 at 09:05:07 PM)
(7 of 21) [CRLA-139/1992] She was also subjected to x-ray examination and an opinion was received that two injuries, one on the left leg and the other on the left forearm were grievous in nature.
Spot documents were prepared. The accused persons were arrested and lathis and Jeis were recovered in furtherance of their disclosure statements. Documents pertaining to the Revenue litigation going on between the parties were collected.
Upon conclusion of investigation, a charge-sheet came to be filed against the accused persons for the offences punishable under Section 302/149, 307/149, 325/149, 323/149, 148 and 447 IPC. Since the offences punishable under Section 302 read with Section 149 and 307 read with Section 149 IPC were exclusively Sessions triable, the case was committed to the Court of Sessions Judge, Churu, where charges were framed against the accused for these offences. They pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses and exhibited 48 documents to prove its case. The accused, upon being questioned under Section 313 CrPC and when confronted with the allegations appearing against them in the prosecution story denied the same, claimed to be innocent, but did not lead any oral evidence in defence. After hearing the arguments advanced by the learned Public Prosecutor and the learned defence counsel and appreciating the evidence available on record, the trial court proceeded to render the impugned judgment dated 25.03.1992, whereby the accused persons were acquitted from the charge under Section 307 read with Section 149 IPC and while toning (Downloaded on 17/11/2022 at 09:05:07 PM) (8 of 21) [CRLA-139/1992] down the charge under Section 302 to one under Section 304 Part I IPC, they were convicted and sentenced as above.
The relevant findings recorded by the trial court at the paras Nos.19 to 24 of the impugned judgment are reproduced hereinbelow for the sake of ready reference :-
"19- vr% mDr foospu ds izdk'k esa ;g U;k;ky; blh Li"V fu"d"kZ ij igqaprk gS fd vfHk;kstu i{k us ;g rF; lansg ls ijs izekf.kr fd;k gS fd lkrksa vfHk;qDrx.k us fnukad 03&11&89 dks vfHk;ksxh i{k ds [ksr esa vukf/kd`r izos'k dj tsbZ o ykfB;ksa ls xksj[kflag ds pksVsa igqapkdj mldh e`R;q dkfjr dh rFkk Hkaojh nsoh ds Hkh 15 pksVsa igqp a kdj mldks ?kk;y fd;kA Hkaojh nsoh dh nks pksVsa vfLFkHkax dh xaHkhj FkhA 20- vc gesa bl lanHkZ esa fopkj.k djuk gS fd vfHk;qDrx.k fdu vijk/kksa ds fy, nks"kh gS\ vijk/kksa dh izd`fr fu/kkZfjr djus ds Øe esa gesa ;g fuf.kZr djuk vko';d gS fd D;k vfHk;qDrx.k us ?kVuk ds le; xksj[kflag o Hkaojh ds pksVsa igqapkus ds lanHkZ esa voS/k tu lewg dk xBu fd;k\ Hkaojh nsoh ds lk{; dk va'k tks Åij mn`r fd;k x;k gS] ;g Li"V djrk gS fd lHkh vfHk;qDRkx.k ,d lkFk tsbZ o ykfB;ka ysdj jkf= esa muds [ksr esa cus >ksiM+s ds ikl vuf/kd`r izos'k djrs gq, x;sA muds ykfB;ksa o tsbZ ls Hkkjh la[;k esa pksVsa igqapkbZA bl lk{; oLrq rFkk vU; lHkh ifjfLFkfr;ksa ds izdk'k esa ;g lansg ls ijs izekf.kr gS fd lHkh vfHk;qDrx.k us xksj[kflag o Hkaojhnsoh ds Hkkjh la[;k esa pksVsa dkfjr djus ds lkekU; mÌs'; ls ,d voS/k tu lewy dk xBu fd;k o ?kVukLFky ij x;s o bldh fØ;kfUofr esa lHkh vfHk;qDrx.k us xksj[kflag o Hkaojhnsoh dks tsbZ o ykfB;ksa ls pksVsa dkfjr dhA vr% vfHk;qDrx.k ds fo:) /kkjk 148 Hkk-n-la- ds vijk/k dk vkjksi lansg ls ijs izekf.kr gSA 21- ;g rF; Hkh lansg ls ijs izekf.kr gS fd [ksr [k-ua- 58 tks xzke nsxk dh jksgh esa gS vfHk;ksxh i{k ds vkf/kiR; esa Fkk tSlk fd vfHk- lk- la- 6 enuyky uk;c rglhynkj] ljnkj'kgj ds lk{; o iz-ih-24 (Downloaded on 17/11/2022 at 09:05:07 PM) (9 of 21) [CRLA-139/1992] tekcanh o iz-ih- 45 LFkxu vkns'k ls izekf.kr gSA vr% vfHk;qDrx.k } kjk pksVsa dkfjr djus ds vk'k; ls vfHk;ksxh i{k ds [ksr esa vukf/kd`r izos'k Hkh izekf.kr gSA vr% /kkjk 447 Hkk-n-la- ds vijk/k dk vjksi Hkh vfHk;qDrx.k ds fo:) lansg ls ijs izekf.kr gSA 22- Jherh Hkaojh nsoh ds 'kjhj ij 15 pksVsa fpfdRlh; lk{; ls gksuk izekf.kr gSA mlus vius lk{; ls izdV fd;k gS fd lHkh vfHk;qDrx.k us mlds nM+k nM+ tsbZ o ykfB;ksa ls pksVsa ekjhA mlds nks xaHkhj pksVsa gS rFkk 'ks"k lk/kkj.k pksVsa gS rFkk vfHk;qDrx.k ds ekxZ ij voS/k tu lewg dk xBu o lkekU; mÌs'; dh iwfrZ esa pksVsa dkfjr djuk izekf.kr gSA vr% /kkjk 323 l-i- 149] 325 l-i- 149 Hkk-n-la- ds vijk/kksa ds vkjksi Hkh lansg ls ijs muds fo:) izekf.kr gSA 23- tgka rd /kkjk 302 l-i- 149 Hkk-n-la- ds vijk/k ds vkjksi dk iz'u gS fpfdRlh; lk{; ls izdV gksrk gS fd e`rd xksj[kflag ds 'kjhj ij fuyxw] [kjksap rFkk dqpys gq, ?kko dqy 21 pksVsa FkhA izFke pksV flj ij Fkh tks lk/kkj.k FkhA nwljh pksV psgjs ij Fkh tks lk/kkj.k Fkh rFkk 'ks"k pksVsa 'kjhj ds vU; Hkkx ij FkhA rhuksa pksVsa vfLFkHkax dh xaHkhj izd`fr dh Fkh tks ikao dh o gkFk dh gM~Mh ,oa ialfy;ksa dh gM~Mh ds vfLFkHkax gSA vfHk;qDrx.k lHkh dks /kkjk 149 Hkk-n-la- dh lgk;rk ls xksj[kflag dh e`R;q dkfjr djus ds vijk/k ds fy;s nks"kh Bgjk;k tkuk gSA xksj[kflag ds fdl vfHk;qDr us dkSulh pksV igqp a kbZ blds ckjs esa dksbZ Li"Vhdj.k Hkaojhnsoh us vius lk{; esa ugha fd;k gSA vr% lHkh ifjfLFkfr;ksa dks ns[krs gq, bl U;k;ky; ds U;kf;d foosd ds vuqlkj lHkh vfHk;qDrx.k dks /kkjk 302 l-i- 149 Hkk- n-la- ds LFkku ij /kkjk 304 Hkkx izFke l-i- 149 Hkk-n-la- vijkf/kd ekuo o/k o gR;k dh dksVh esa ugha vkrk ds vijk/k ds fy;s nks"kh Bgjk;k tkuk mfpr izrhr gksrk gSA 24- tgka rd Hkaojh nsoh ds dkfjr dh xbZ pksVksa ds lanHkZ esa /kkjk 307 l-i- 149 Hkk-n-la- ds vijk/k ds vkjksi dk iz'u gS Hkaojh nsoh ds 'kjhj ij fdlh ekfeZd LFky ij dksbZ xaHkhj pksV ugha igaqpkbZ xbZ gSA mlds nks vfLFkHkax dh pksVsa nka;s iSj o cka;s gkFk esa gSA lk{; ls ;g Hkh izdV gqvk gS fd og pksVksa ds i'pkr gks'k esa FkhA (Downloaded on 17/11/2022 at 09:05:07 PM) (10 of 21) [CRLA-139/1992] vfHk;qDrx.k ;fn mldh e`R;q dkfjr djuk pkgrs rks ,slh dksbZ ifjfLFkfr ck/kd ugha Fkh ftlds dkj.k os vius lkekU; mÌs'; dh iwfrZ ugha dj lds gksrsA vr% lHkh ifjfLFkfr;ksa ds izdk'k esa bl U;k;ky; ds U;kf;d foosd ds vuqlkj Hkaojh nsoh dh pksVksa ds lanHkZ esa vfHk;qDrx.k ds fo:) /kkjk 325] l-i- 149] 323 l-i- 149 Hkk-n-la- ds izekf.kr vijk/k gksaxsA /kkjk 307 Hkk-n-la- ds vijk/k dh nks"kflf) dk dksbZ vk/kkj izdV ugha gksrkA vr% lHkh vfHk;qDrx.k dks /kkjk 307 l-i- 149 Hkk-n-la- ds vijk/k ds vkjksi ls nks"keqDr fd;k tkrk gSA "
As stated above, these three appeals have been instituted for assailing the impugned judgment, one at the instance of the accused and two at the instance of the State.
Learned Public Prosecutor Mr. Bishnoi and Mr. Pawan Bharti associate to Mr. I.R. Choudhary, learned counsel for the complainant, vehemently and fervently submitted that acquittal of the accused persons as recorded by the trial court from the offences punishable under Section 302 and 307 of IPC is absolutely illegal and perverse. In this regard, they drew the Court's attention to the evidence of the star prosecution eye-witness Smt. Bhanwari Devi, who was herself injured in the very same incident and the Medical Jurist Dr. Jatanlal Baid (P.W.9). Learned Public Prosecutor submitted that if the evidence of Smt. Bhanwari Devi is seen, apparently, the incident took place in the dead of the night. The deceased Shri Gorakh Singh was an old ailing man and he was also hard of hearing. The accused persons had strong motive to commit the offence as there existed a prior enmity between the parties owing to a land dispute. They trespassed into the Dhani of the victim in the dead of the night and were armed with weapons like Jei and lathis. A chimney was (Downloaded on 17/11/2022 at 09:05:07 PM) (11 of 21) [CRLA-139/1992] burning inside the Dhani and in the illumination, thereof, Smt. Bhanwari Devi, easily identified the accused persons as being the assailants. She levelled emphatic allegations of brutal assault against all the accused named in the FIR. Nothing significant was elicited in the cross-examination of Smt. Bhanwari Devi, which can discredit her testimony. The defence, gave a suggestion to the lady that she and her husband had gone to take possession of the Dhani in the dead of the night and that some unknown persons assaulted them. She emphatically refuted this conjectural defence story. Learned Public Prosecutor submitted that this fictitious case set up by the defence, is absolutely false and unworthy of credence. He further submitted that Smt. Bhanwari Devi herself having been injured in the incident, no corroboration is required to her testimony. In spite there of, evidence of Smt. Bhanwari Devi (P.W.2), is fully corroborated by Adu Ram (P.W.5). He also drew the Court's attention to the evidence of Madan Lal (P.W.6), the Tehsildar, who proved the revenue record as per which, 1/6th share of the field in question was entered in the name of the deceased Shri Gorakh Singh. Attention of the Court was also drawn to the statement of the Investigating Officer Mr. Badri Singh (P.W.10), who proved the injunction order Ex.P.45 dated 21.09.1989 issued in the revenue suit preferred on behalf of the deceased Gorakh Singh wherein, the accused Mukund Singh was one of the respondents. Learned Public Prosecutor thus, submitted that the fact regarding old land dispute between the parties was well established. The deceased had procured an injunction against the accused party, who became infuriated as a result thereof. It is with this motive that the accused persons trespassed into the field (Downloaded on 17/11/2022 at 09:05:07 PM) (12 of 21) [CRLA-139/1992] where two victims were sleeping. Multiple injuries totalling to 21, were inflicted on the head, abdomen and the sternal region of Shri Gorakh Singh who died at the spot. When autopsy was carried upon the dead body of Shri Gorakh Singh, Ribs Nos.9 to 10 on the left side, were found fractured, which led to laceration and rupture of spleen. The Medical Jurist clearly opined that the injuries inflicted to Shri Gorakh Singh were cumulatively sufficient in the ordinary course of nature to cause his death. Smt. Bhanwari was caused fifteen injuries of which, two were fractures. By the very fact that the accused inflicted a large number of injuries including numerous on the vital body parts of the two helpless victims in the dead of the night, the only inference which can be drawn is that there intention was to commit murder. The trial court did not record any acceptable reason for toning down charge attributed to the accused persons from that under Section 302 IPC to one under Section 304 Part I IPC and in acquitting the accused persons from the charge under Section 307 IPC. Learned Public Prosecutor, further submitted that even if it is presumed for arguments sake, that the trial court was justified in toning down the offence attributed to the accused from Section 302 IPC to Section 304 Part I IPC, then also, there is no legal sanctity for awarding sentence of five years only to the accused persons for this offence.
Learned Public Prosecutor, sought acceptance of the State appeals; implored the Court to either reverse the finding recorded by the trial court whereby, the accused have been acquitted from the charge under Section 302 IPC and to convict them for the said (Downloaded on 17/11/2022 at 09:05:07 PM) (13 of 21) [CRLA-139/1992] offences; sentence them to Life Imprisonment or, in the alternative to enhance the substantive sentence awarded to the accused persons for the offence punishable under Section 304 Part I IPC to 10 years Rigorous Imprisonment. He also prayed that acquittal of the accused from the charge under Section 307 IPC is unjustified and sought reversal of this finding in the impugned judgment dated 25.03.1992 with suitable alteration in sentence.
Per contra learned Senior Counsel Mr. Manish Sisodia assisted by Mr. Yogendra Singh, Advocate vehemently and fervently opposed the submissions advanced by the learned Public Prosecutor. He urged that the incident took place in the dead of the night and thus, it cannot be believed that the injured witness Smt. Bhanwari would have been in a position to precisely identify the assailants. The prosecution theory that she managed to identify the accused in the illumination of the chimney is an afterthought and cooked up story and cannot be believed. His alternative submission was that the incident took place in the dead of the night and thus, the victims were at the mercy of the accused who were seven in number but despite that, no significant injuries were inflicted by the accused persons on the vital body parts of either Gorakh Singh or Smt. Bhanwari Devi. He further submitted that the Medical Jurist Dr. Jatanlal Baidh (P.W.9), did not allege that any particular injury inflicted to Gorakh Singh was sufficient in the ordinary course of nature to cause death. Admittedly, the parties were having old enmity over agricultural land and thus, even if grievous injuries were caused by the accused persons on the non-vital body parts of Gorakh Singh, the (Downloaded on 17/11/2022 at 09:05:07 PM) (14 of 21) [CRLA-139/1992] only conclusion which can be drawn is that they neither intended to cause death, nor did they possess knowledge that by causing such injuries, they could cause death of Shri Gorakh Singh. Regarding the offence under Section 307 IPC qua the injuries caused to Smt. Bhanwari Devi, he urged that no injury was caused on her vital body parts and thus, the trial court was justified in acquitting the accused persons from the charge under Section 307 IPC. He thus, urged that the findings recorded by the trial court on the aspect of the offences to be applied and the sentences awarded are unassailable. He further submitted that the accused Mukand Singh is about 94 years of age as on date and the accused Girdhari is about 75 years of age whereas, the other accused persons were between 21 to 30 years at the time of incident. The accused have already served out the sentence of five years awarded to them by the trial court and thus, it would be nothing short of travesty of justice if they are sent back to prison at this highly belated stage.
He thus, implored the Court to reject the State appeals and dispose of the appeal preferred by the accused persons as they have already suffered the sentences awarded by the trial court.
We have heard and considered the submissions advanced at bar and have minutely reappriciated the evidence available on record.
It is not in dispute that Smt. Bhanwari Devi (P.W.2) also received injuries in the self same incident wherein, her husband Gorakh Singh was caused fatal injuries, leading to his death and thus, her presence at the place of incident cannot be doubted. (Downloaded on 17/11/2022 at 09:05:07 PM)
(15 of 21) [CRLA-139/1992] Thus, the most material witness of prosecution is none other than Smt. Bhanwari Devi (P.W.2). We now proceed to scrutinize and analyze her testimony.
A thorough perusal of her statement would reveal that she gave unflinching testimony, alleging that she and her husband had cultivated the field located in Rohi of Dhega Village. Gwar, Bajra and Moth had been sown by them. They had four sons of which, the eldest resided in Guwahati. The remaining three used to reside in Sardarshahar. She and her husband used to reside at the Dhani. On the fateful day, they lied down after having dinner. They woke up during the night and lit the chimney. Her husband asked her to prepare tea. She was tinkering around when she saw that Mukand Singh, Bhagirath, Omala, Shyamla, Shankariya, Girdhari and Nirana Ram who were armed with Jeis and lathis, entering their Dhani. She called out for her husband. Bhagirath shouted that they shall be killed so that the field and other properties could be got released. Her husband also came out. Bhagirath gave blow of the Jei on the head of her husband. Nirana Ram gave a lathi blow on her forehead. Thereafter, all started landing indiscriminate blows to her and her husband. She could not pinpoint the specific acts of the accused persons who also exhorted that all the articles of the complainant party should be thrown out. After the assault, the accused persons dragged the witness and her husband and abandoned them in the field of Bhanwar Purohit. Confident that both had died, the accused persons went away. She categorically stated that the accused wanted to usurp their land situated in the Village Patalisar. They thought that by eliminating the two old (Downloaded on 17/11/2022 at 09:05:07 PM) (16 of 21) [CRLA-139/1992] people, they could succeed in their evil design. They also took away some valuable articles from the Dhani while going away. Adu Ram, Naanji and Inder came around after break of dawn. Later on, her son Radhakrishna came and the police report was filed.
On a perusal of extensive cross-examination conducted from Smt. Bhanwari Devi, it comes out that vague suggestions were given by defence regarding an old case of theft lodged by Bhagirath Singh and Mukand Singh against her husband. Another suggestion was given that she and her husband were trying to take forcible possession of the Dhani and the field and that in this process, some unknown persons assaulted and caused the injuries to both of them. She emphatically denied this conjectural theory.
On an overall appreciation of the statement of Smt. Bhanwari Devi, we do not find any infirmity, which can bring her testimony into the realm of being unreliable or untrustworthy. She is a wholly reliable injured eye-witness who has given clinching evidence against the accused persons of committing criminal trespass by night, brutally assaulting herself and her husband Shri Gorakh Singh, the deceased, by use of Jeis and lathis. Thus, presence and participation of the accused persons for the charges of criminal trespass and of inflicting injuries to both the victims in the dead of the night, is well established from the testimony of Smt. Bhanwari Devi.
The next important witness of prosecution is the Medical Jurist Dr. Jatanlal Baid (P.W.9). We have already reproduced the details of injuries as per the Postmortem Report (Ex.P/28) and the Injury Report (Ex.P/27) prepared by the Medical Jurist. (Downloaded on 17/11/2022 at 09:05:07 PM)
(17 of 21) [CRLA-139/1992] A comprehensive appreciation of the evidence of Dr. Jatanlal Baid, would indicate that though there was a lacerated wound on the head of Shri Gorakh Singh but, this injury did not lead to any fracture. Two ribs of the victim were found fractured. Likewise, the tibia bone was fractured and the broken bone was exposed. Both the hands of the victim were also fractured. There were bruises and lacerations on the abdominal region. Multiple abrasions were noticeable all over the back. The spleen was ruptured and 600 ml blood had collected inside the abdomen of the victim due to internal bleeding. As many as 15 injuries were caused to Smt. Bhanwari Devi of which, two were fractures. The Medical Jurist gave definite opinion to the effect that cumulative effect of the injuries caused to Shri Gorakh Singh was sufficient in the ordinary course of nature to cause death.
Manifestly, thus, the accused persons did not cause any grievous injury on the head of the victim but undoubtedly, rib cage area/thoracic region is equally a vital body part. As noted above, large number of injuries were inflicted on this vital area of the deceased's body leading to extensive internal damage and haemorrage. As repeated blows of blunt weapons were inflicted all over the body, some of which resulted into fractures, which led to extensive damage to the ribs, legs and hands of the victim with some of the fractures even exposing the bones, definitely, the act of the accused would fall under clauses firstly and secondly of Section 300 IPC, which read as below:-
"300. Murder. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of (Downloaded on 17/11/2022 at 09:05:07 PM) (18 of 21) [CRLA-139/1992] causing death, or Secondly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
For toning down the offence from Section 302 IPC, the defence would be required to bring the case within one of the exceptions to Section 300 IPC. However, in our firm opinion, none of the exceptions would apply to the situation at hand because the incident was perpetrated in a preplanned way by the well armed accused persons in the dead of the night. The assailants were fueled by the motive to usurp the field in relation whereto, a dispute was going on; they trespassed into the Dhani where two victims were sleeping. Without any provocation, both the victims were brutally assaulted by the accused leading to the multiple injuries described above. Hence, the judgment in the case of Adu Ram Vs. Mukna And Ors. [(2005) 10 SCC 597] on which, heavy reliance was placed by Shri Shishodiya, has no application to the case at hand. In that case, a sudden altercation took place between the parties followed by exchange of hot words and in those peculiar circumstances, the Hon'ble Supreme Court held that the case was covered by Section 304 Part II IPC. As stated (Downloaded on 17/11/2022 at 09:05:07 PM) (19 of 21) [CRLA-139/1992] above, the situation in the case at hand is entirely different. Reliance was also placed by Shri Shishodiya on the Supreme Court judgment in the case of Sanjeev & Anr. Vs. State of Himachal Pradesh [(2022) 6 SCC 294] contending that interference in the judgment of acquittal should only be made if no two views are possible. For appreciating the said argument, we have reproduced the findings recorded by the trial court whereby, it ventured into toning down the offence from one under Section 302 IPC qua the injuries caused to Gorakh Singh to Section 304 Part I IPC and while recording acquittal from the charge under Section 307 IPC qua the injuries caused to Smt. Bhanwari Devi. It is clear as daylight that no discussion whatsoever was made by trial court nor any legal reasoning was assigned as to why, the charge under Section 302 IPC was being toned down to one under Section 304 Part I IPC. No rational finding was recorded for the acquittal of the accused from the charge under Section 307 IPC. For the sake of repetition, it may be mentioned that the trial court itself held that the accused persons formed an unlawful assembly, trespassed into the Dhani of the complainant party with the motive of ousting them from the field in question and inflicted innumerable injuries to the unsuspecting old aged victims. The medical evidence clearly establishes that cumulative effect of the multiple injuries caused to Shri Gorakh Singh was sufficient in the ordinary course of nature. Thus, there was no justification whatsoever for the trial court to have acquitted the accused persons from the charge under Section 302 IPC and to have toned down the offence to one under Section 304 Part I IPC. The finding so recorded by the trial court is perverse and illegal. Likewise, while acquitting the (Downloaded on 17/11/2022 at 09:05:07 PM) (20 of 21) [CRLA-139/1992] accused from the charge under Section 307 read with Section 149 IPC regarding the injuries caused to Smt. Bhanwari Devi, the trial court held that no grievous injury was caused to Smt. Bhanwari Devi on any vital body part and thus, it could not be inferred that the accused committed the offence of attempted murder. We feel that this finding is also perverse on the face of the record.
Law is well settled that for adjudicating upon the charge for attempted murder, the actual nature of injury is not relevant. What is to be seen is as to whether, the accused inflicted the injuries with the intention to cause death. In the case at hand, as has been held above, the accused persons who were seven in number, were armed with Lathis and Jeis; they trespassed into the field of victim in the dead of the night and inflicted multiple injuries to the helpless old couple. One expired whereas, the other somehow survived because the accused abandoned the victims believing that both had died. Thus, unquestionably intention of the accused was to kill Smt. Bhanwari as well.
Thus, acquittal of the accused from the charge under Section 307 IPC is also not sustainable.
No other view except recording conviction of the accused persons for the charges under Sections 302 IPC & 307 IPC is permissible in view of the discussion made above of the factual and legal issues involved.
As a consequence, the appeals preferred by the State are accepted. The findings recorded by the trial court whereby, the accused were acquitted from the charges under Sections 302 read (Downloaded on 17/11/2022 at 09:05:07 PM) (21 of 21) [CRLA-139/1992] with Section 149 IPC and Section 307 read with Section 149 IPC, are reversed. The accused are convicted for both these offences.
Offence punishable under Section 302 IPC/149 IPC carries minimum sentence of Life Imprisonment.
Resultantly, for the offence punishable under Section 302 IPC read with Section 149 IPC, the accused persons are awarded sentence of Life Imprisonment and a fine of Rs.5,000/- each. In default of payment of fine, they shall further undergo six months' Rigorous Imprisonment.
For the offence punishable under Section 307 IPC read with Section 149 IPC, the accused persons are awarded sentence of 5 Years' Rigorous Imprisonment and a fine of Rs.5,000/- each. In default of payment of fine, they shall further undergo Rigorous Imprisonment of five years.
All the sentences shall run concurrently.
All the accused are on bail. Their bail bonds are cancelled. They shall be taken back in custody and will be committed to prison for serving out the sentences.
As a consequence, the appeal No.139/1992 preferred by the accused persons, being devoid of merit, is dismissed.
Record be returned to the trial Court.
(FARJAND ALI),J (SANDEEP MEHTA),J
Devesh Thanvi/-
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