Rajasthan High Court - Jaipur
Bachchu Singh And Ors. And Laxman vs State Of Rajasthan on 1 May, 2008
Author: Guman Singh
Bench: Guman Singh
JUDGMENT Shiv Kumar Sharma, J.
1. Challenge in these appeals is to the judgment dated July 17, 2003 of the learned Additional Sessions Judge (Fast Track) No. 1, Bharatpur, whereby the appellants, four in number, were convicted and sentenced as under:
Bachchu Singh & Devi Prasad:
Under Sections 302/34 IPC:
Both to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. Girraj Prasad and Laxman:
Under Sections 302/109 IPC:
Both to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month.
2. Both to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. The incident alleged to have occurred on February 2, 1993 at 4 PM in village Kumher District Bharatpur. However written report was transmitted by post from SMS Hospital Jaipur to SHO Police Station Kumher by informant Vinod Kumar Sharma on February 11, 1993. The report was received on February 17, 1993. It was interalia stated in the report that on February 2, 1993 at 4 PM while the informant and his uncle Ramesh Chand (since deceased) were in the field and watering the crop and mother of informant was collecting green fodder, Girraj, Laxman, Devi and Bachchu armed with lathi and Pati came over there and started hurling abuses. They surrounded Ramesh Chand and asked him as to why he carried water by the side of their med (boundary) of field. Ramesh Chand replied that water always used to be carried by the side of boundary of the field. Thereupon Laxman and Girraj exhorted Devi to kill Ramesh Chand and Devi inflicted blow with Pati on the head of Ramesh Chand, as a result of which he fell down, Bachchu Singh then inflicted another blow on the head of Ramesh Chand. When informant and his mother intervened Girraj and Laxman caused injuries on the person of his mother. On raising alarm Lal Chand and Jahanu Koli intervened. Injured was removed to hospital Kumher from where he was referred to Bharatpur and Jaipur. It was further stated in the report that since all family members were involved in treatment of Ramesh Chand, who was admitted to SMS Hospital Jaipur, the report could be sent on February 11, 1993. On that report case under Sections 307, 447 and 34 IPC was registered and investigation commenced. During the course of investigation injured Ramesh Chand succumbed to his injuries. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed against the appellants. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Bharatpur. Charges under Sections 302, 109 and 34 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Section 313 CrPC, the appellants claimed innocence. Six witnesses were examined in support of defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. report that since all family members were involved in treatment of Ramesh Chand, who was admitted to SMS Hospital Jaipur, the report could be sent on February 11, 1993. On that report case under Sections 307, 447 and 34 IPC was registered and investigation commenced. During the course of investigation injured Ramesh Chand succumbed to his injuries. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed against the appellants. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Bharatpur. Charges under Sections 302, 109 and 34 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Section 313 CrPC, the appellants claimed innocence. Six witnesses were examined in support of defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above.
3. We have heard the submissions advanced before us by learned Counsel for the appellants, learned Public Prosecutor and learned Counsel for the complainant and scanned the material on record.
4. Injuries of Ramesh Chand were examined prior to his death vide injury report (Ex.P-5), according to which following two injuries were according to which following two injuries were
1. Diffuse swelling with red bruise 6 x 3cm on Lt.side of fronto parietal region.
2. Diffuse swelling on Rt.eye brow Ramesh Chand succumbed to the injuries on March 10, 1993 and according to Dr.H.L.Bairwa (Pw.12) who performed the autopsy report and drew postmortem report (Ex.P-13) the cause of death was coma due to injuries to skull and brain.
5. We also noticed that Bhagwani Devi (Pw.5) vide injury report (Ex.P-4) received following injuries:
1. Bluish bruise 4 x 3cm on Rt.buttock upper part.
2. Bluish Bruise 4 x 2.5cm Rt.thigh upper 1/3 part
3. Abrasion 2 x 1.5cm on Rt.tibia shown upper 1/3rd with hard scar.
4. four abrasions x cm each 2cm to 1.5cm in between & dorsum Lt.forearm lower.
5. Bluish bruise 1 x cm on t.index finger.
6. Coming to the prosecution evidence adduced at the trial we notice that Vinod Kumar (Pw.1) in his deposition stated that on February 2, 1993 at 4 PM while he and his uncle Ramesh Chand (since deceased) were in the field and watering the crop Girraj, Laxman, Devi and Bachchu armed with lathis and Pati came over there and started hurling abuses. They surrounded Ramesh Chand and asked him as to why he carried water by the side of their med (boundary) of field. Ramesh Chand replied that water always used to be carried by the side of boundary. Thereupon Laxman and Girraj exhorted to kill Ramesh Chand and they caught holds of hands of Ramesh Chand and Devi inflicted blow with Pati on left side of the head of Ramesh Chand, as a result of which he fell down, Bachchu Singh then inflicted another blow on the head of Ramesh Chand. Meanwhile when his mother with the purpose of saving his uncle, lay on her, Girraj and Laxman lift his mother and threw her away and Girraj gave lathi blow on back of his mother. He (vinod) watched the incident from a distance of 20 ft. On raising alarm Lal Chand and Jahanu Koli came and intervened. Meanwhile his father Mangu Lal reached on the spot. The injured was removed to hospital Kumher from where he was referred to Bharatpur and Jaipur. On 10as to why he carried water by the side of their med (boundary) of field. Ramesh Chand replied that water always used to be carried by the side of boundary. Thereupon Laxman and Girraj exhorted to kill Ramesh Chand and they caught holds of hands of Ramesh Chand and Devi inflicted blow with Pati on left side of the head of Ramesh Chand, as a result of which he fell down, Bachchu Singh then inflicted another blow on the head of Ramesh Chand. Meanwhile when his mother with the purpose of saving his uncle, lay on her, Girraj and Laxman lift his mother and threw her away and Girraj gave lathi blow on back of his mother. He (vinod) watched the incident from a distance of 20 ft. On raising alarm Lal Chand and Jahanu Koli came and intervened. Meanwhile his father Mangu Lal reached on the spot. The injured was removed to hospital Kumher from where he was referred to Bharatpur and Jaipur. On 10 when operation of his uncle was conducted the Doctor enquired about lodging the report thereafter the report was sent to police on February 11, 1993.
7. Bhagwan Dei (Pw.5) deposed that on February 2, 1993 while she was collecting fodder and her Dewar (brother in-law) Ramesh was watering the field, whereas Jahan was working in the field of Babu Patwari and Vinod was at the Engine, Girraj, Laxman, Bachchu and Devi armed with lathis and pati came over there and started hurling abuses at Ramesh. Thereafter Laxman and Girraj caught hold of hands of Ramesh and Devi inflicted blow on left side of head of Ramesh as a result of which he fell down, then Bachchu inflicted blow on head of Ramesh, blood started oozing. She lay on Ramesh to save him but Girraj and Laxman lifted her and threw her away. They also inflicted blows with lathi on her person. According to her Jahan, Lal Chand and Vinod witnessed the incident and Ramesh died after one month and 5-7 days of the incident. side of head of Ramesh as a result of which he fell down, then Bachchu inflicted blow on head of Ramesh, blood started oozing. She lay on Ramesh to save him but Girraj and Laxman lifted her and threw her away. They also inflicted blows with lathi on her person. According to her Jahan, Lal Chand and Vinod witnessed the incident and Ramesh died after one month and 5-7 days of the incident.
8. The appellants examined defence witnesses to show that the incident did not occur in the manner narrated by the prosecution witnesses. Appellant Bachchu Ram (Dw.1) in his deposition stated that on February 2, 1993 around 4-5 PM while he was on the Engine and his brother Shiv Kumar was watering the field. They had sown the crop of wheat in the field. A stone was laid by the side of Med (boundary wall) to stop the flow of water to the adjacent field where Mangu, Ramesh, Rajjan, Vinod, Bhagwan Dei, Lal Chand (co-brother of Mangu) and labour Jahan were present. Ramesh asked Shiv Kumar to remove the stone from boundary wall which was a common wall belonged to both the sides. Shiv Kumar said Ramesh with folded hands that the stone existed there for a long time and it did not cause any loss to them. Ramesh then started hurling abuses and exhorted others to smash the stone and got the Engine halted. All of them then entered to his field, Ramesh and Vinod smashed the stone, broke open the Engine. When he (Bachchu Ram) raised alarm his father, Om Prakash, Bhagwan Devi and Laxman came over there. Ramesh inflicted blow with Laxman came over there. Ramesh inflicted blow with taken to Kumher Hospital from where he was referred to Bharatpur. His injuries were examined by Doctor vide injury report Ex.D-11. When police did not file charge sheet he instituted complaint in the court. Cognizance was taken against the complainant party vide order Ex.D-9.
9. Testimony of Bachchu Ram gets corroboration from the statements of Laxman Prasad (Dw.2). Injury report Ex.D-11 of Bachchu Ram reads as under:
1. Lacerated wound 4 x 1cm x bone deep on Lt. side parietal region.
2. Abraded bruise 4 x 1cm on Rt. mid scapular area
3. Red verticle bruise 8 x 2cm on Lt. scapular area
4. Red verticle bruise 4 x 2cm on Rt. mid back.
5. Oblique two parallel bruises 12 x 1cm each with 1cm in between on mid back
6. Oblique red two parallel bruises 10 x 1cm each with gap of 1cm in between at both ends.
7. transverse red two parallel bruises 15 x 1cm at both ends on back.
8. Abraded bruise 3 x 1cm on lower 1/3rd Rt. forearm.
9. Abrasion 2 x 1cm at proximal phalynx Rt. hand
10. Diffuse swelling on Rt. shoulder joint.
10. Salient features of the case may be summarized thus:
(i) Fields of accused party and complainant party situated adjacent to each other.
(ii) Incident occurred all of sudden when the accused party was watering its field and members of accused party raised objection and asked the accused party to remove the stone fixed on the boundary wall, which was a common wall and jointly belonged to both the parties.
(iii) The complainant party smashed the stone and broke open the engine of accused party.
(iv) There was a long delay in lodging the report of the incident.
(v) Ramesh Chand died on March 10, 1993 i.e. after one month and eight days of the incident.
(vi) Injuries sustained by appellant Bachchu Singh were not explained by the prosecution witnesses.
(vii) Cross case was registered against the complainant party.
(viii) At the Bharatpur Hospital Dr.B.L.Meena (Pw.6) informed Deewan Singh HC 808 of Mathura Gate Bharatpur about the incident.
11. In Dharman v. State of Punjab there was a dispute regarding Shamlati land existed between the parties. The accused claimed that the land was in their possession whereas the party of the deceased put forward the claim that the land had been in their possession for many years. On the date of the incident a fight ensued. The deceased died in the course of a sudden and free fight by the injury inflicted by the appellant. The deceased's party was also armed with dangerous weapons. It was held by the Supreme Court, that when two such contending parties, each armed with weapons, when clashed and in the course of free fight some injuries were inflicted on one party or the other, it could not be said that either of them acted in cruel or unusual manner and the case against the appellant clearly fell within Exception 4 to Section 300 IPC.
12. Ratio indicated in Dharman v. State of Punjab (supra) is squarely applicable to the facts of the instant case. Appellant Bachchu received injury with spade on his head and the prosecution witnesses did not explain as to how he received injury. The prosecution also did not place on record the information given by Dr.B.L.Meena (Pw.6) about the incident to Deewan Singh Head Constable of Police Station Mathura Gate Bharatpur. Thus origin and genesis of the incident appears to have been withheld by the prosecution. Evidently the incident did occur all of a sudden and both parties fought freely. The injuries on the person of Ramesh Chand have been attributed to appellants Bachchu Singh and Devi Prasad. Ramesh Chand was also armed with spade, inflicted blow with spade on head of Bachchu Singh. It therefore can not be held that either of them acted in cruel and unusual manner and the case against appellants Bachchu Singh and Devi Prasad clearly falls within Exception 4 to Section 300 IPC. Possibility of over implication of appellants Girraj Prasad and Laxman in the facts and circumstances of the case cannot be ruled out and we grant them benefit of doubt. fought freely. The injuries on the person of Ramesh Chand have been attributed to appellants Bachchu Singh and Devi Prasad. Ramesh Chand was also armed with spade, inflicted blow with spade on head of Bachchu Singh. It therefore can not be held that either of them acted in cruel and unusual manner and the case against appellants Bachchu Singh and Devi Prasad clearly falls within Exception 4 to Section 300 IPC. Possibility of over implication of appellants Girraj Prasad and Laxman in the facts and circumstances of the case cannot be ruled out and we grant them benefit of doubt.
13. For these reasons, We dispose of the instant appeals in the following terms:
(i) we partly allow the appeal of Bachchu Singh and Devi Prasad and instead of Section 302/34 we convict them under Section 304 Part II read with 34 IPC. Looking to the fact that the appellants have already sufferred confinement for a period of more than five years, the ends of justice would be served in sentencing them to the period already undergone by them in confinement. The appellants Bachchu Singh and Devi Prasad, who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other case.
(ii) We allow appeals of Girraj Prasad and Laxman and acquit them of the charge under Sections 302/109 IPC. They are on bail, they need not surrender and their bail bonds stand discharged.
(iii) The impugned judgment of learned trial court stands modified as indicated above.