Rajasthan High Court - Jaipur
Ghasi And Ors. vs State Of Rajasthan on 11 September, 1987
Equivalent citations: 1988(1)WLN615
JUDGMENT G.K. Sharma, J.
1. Ghasi and others have preferred their appeal No. 452/79, and the State of Rajasthan has filed D.B Cr. Appeal No. 20/80. Both the appeals arise out of the same judgment dated 6th July, 1979, passed by the Sessions Judge. Bundi, whereby, he convicted and sentenced the accused persons as under:
Name of Accused Offence Under Section Punishment
Ghasi 302, IPC Life imprisonment
Ghasi 148, IPC 6 months' RI;
Ghasi 326, 149 IPC 3 months' RI and a
fine of Rs. 250/-, in
default 3 months' RI;
Ghasi 324, IPC 9 months' RI;
Ghasi 326, IPC 6 months' RI;
Sheoji and 326, IPC 1 year's RI and a fine
Saiga of Rs. 100/-,in default
3 months' RI;
Sheoji and Saiga 324, IPC 6 months' RI;
Sheoji and Saiga 323, IPC 3 months' RI;
Sheoji and Saiga 148, IPC 6 months' RI;
Chhota, Bhuwana and 148, IPC 6 months' RI and a
Teja fine
Chhota, Bhuwana and Teja 323/149, IPC 3 months' RI and a
fine of Rs. 250/-, in
default, 3 months'
further RI;
Chhota, Bhuwana and Teja 323, IPC 6 months' RI;
Chhota, Bhuwana and Teja 324, IPC 9 months' RI.
He, however, acquitted the accused persons of offences under Sections 302/149 & 307/149, IPC. Both these appeals having arisen out of the same judgment of Sessions Judge, Bundi, are deposed of by this common judgment.
2. According to the prosecution-story, the accused persons having formed an unlawful assembly, with a common object to commit murder of Lala and cause injuries to other persons, forcibly occupied the field belonging to the complainant-party, and went to field, at about 8 a.m. on 18th July, 1978. The complainant-party was busy at their field looking after the vegetables. At that time, the accused persons reached there armed with Gandasi, axe, sword and Lathi, and started plucking Bhindis (ladies-fingers) when they were obstructed by the complainant-party, the accused persons inflicted Gandasi blows to Bhanwar Lai and Gordhan. Gordhan ran away. The accused persons then started beating Lala, who also ran away into the house, but, he was chased there by the accused persons and was gtven mercilless beating by them. Mst. Kailashi, wife of Lala, Mst. Nandu, his mother, Mst. Kali and his Bhabhi when tried to save him, they were also beaten up. Mst. Kailashi lodged a report at the police station, where, she narrated the incident and stated that the beating was still going on.
3. On this report, the police registered a case under Sections 147, 148, 149, 307, 452, 447 & 383, IPC. The police immediately reached the spot, and they found the condition of Lala serious, the SHO recorded the dying declaration of Lala, thereafter was taken to hospital where he succumbed to his injuries. Dr. J.P. Sharma, PW 13 performed the post-mortem on the dead-body of Lala. He found three incised wounds, and one injury on the left hand of Lala. He also found injuries to craium, and incised wound the clean and sharp edges everted margin with tampering ends present 1" above the left Mastoid bone not involving the skull-bone. In the opinion of the doctor, the cause of death was due to cerebral shock and haemorrhage caused by the sharp weapon, involving the fracture of frontal and parietal bones and laceration of the brain-matter beneath the skull. The doctor also examined the injuries of Bhanwar Lal, Mst. Nandubai, Mst. Kali, Mst. Kailashi and Gautam.
4. The SHO, after completing the usual investigation, submitted a challan against 10 accused persons. It is pertinent to note here that in the FIR (Ex. P 4). Mst. Kailashi mentioned the names of seven accused persons only. Later on, during investigation, the police found three more persons involved in the case, and so, they submitted the challan against 10 persons.
5. The trial-judge, after completing the trial, acquitted four persons, but convicted the six persons, who have filed D.B. Cr. Appeal No. 452/79. The State of Rajasthan had filed D.B. Cr. Appeal No. 20/80, against all the ten persons, but, leave was granted only with regard to six persons as mentioned above. It means that the three persons who here added by the SHO, at the time of filing of challan, and one more person who has been named in the FIR, were acquitted by the learned Sessions Judge, and no leave was granted against those four persons. So, those four persons who were falsely implicated in this case, have been acquitted.
6. The learned counsel for the appellants argued that the dispute had taken place in a field which was in possession of the accused persons, and that, this land previously, belonged to Dalu of the complainant-party, which was sold away to accused Ghasi. After the sale of this land, the accused persons were in possession of it and were cultivating the same. The incident had taken place on this land. It was also argued by him that the complainant-party was the aggressor, who had come to disputed land which was in possession of the accused persons, and wanted to dispossess the accused persons. According to the learned counsel, vegetables were cultivated on this land, by the accused persons, and while they were plucking vegetable from it, the complainant-party arrived there and attacked them, with various weapons. In that includent, some of the accused persons also had received injuries. The argument of the learned counsel was that as the complainant party wanted to take forcible possession of the disputed land and inflicted injuries to accused persons, they, in the right of their self-defence to person and property, also gave beating to the complainant-party. It was also argued that the learned Sessions Judge has accepted the theory of right private defence, but, according to the learned Sessions Judge, the accused persons had exceeded the said right by inflicting more injuries to the complainant-party than what needed for their private-defence, and hence, he found the accused-appellants guilty of offences as mentioned above. In this context, the learned counsel argued that in a case of right of private defence, even if the right is exceeded, then too, Section 149, IPC cannot be invoked. In such a case, there cannot be a question of forming an unlawful assembly. Hence, according to him, in a case of right of private defence, it is for the prosecution to prove the act of each individual accused person, what offence has been committed by accused, is to be judged, and they should be convicted individually for that act. Therefore, according to the learned counsel, with the aid of Section 149, or Section 34, IPC, the accused persons in this case, cannot be convicted. It was also argued by him that the learned Sessions Judge has believed the dying declaration (Ex. P 23) given by Lala (deceased). According to him, this dying declaration is a false document. Looking to the condition and also the fact that he had already died before arrival of the police at the spot, there was no question of recording his statement by the SHO, this statement was not recorded in presence of the witnesses. He argued that according to the police rules, a police officer can record a dying declaration in peculiar circumstances, but, that statement should be recorded in presence of two responsible persons of the locality. The present dying declaration of Lala. argued the learned counsel, is a forged document, which has been recorded by the SHO. His further argument was that there was a dispute between the two parties, and both the parties had received injuries, and so, it was for the prosecution to explain as to how the accused persons had received the said injuries. In this case, the learned counsel argued, the prosecution has failed to explain the injuries received by the accused parsons, which creates serious doubt in the truthfulness of the prosecution story.
7. The learned Public Prosecutor argued that the learned Sessions Judge has rightly believed the dying declaration of Lala. According to him, the complainant-party was in possession of the disputed field, and that the accused persons have failed to prove their possession over this land. It was also argued by him that the learned Sessions Judge has committed error in acquitting the accused persons of the charge under Sections 302/149, IPC and 307/149, IPC It was also argued by him that the prosecution in this case, has examined a number of witnesses, who were injured in the alleged incident and their statements are reliable one, but, the learned Sessions Judge has given incorrect finding regarding acquittal of the accused persons.
8. We have considered the arguments of both the parties, and also perused the judgment of the learned Sessions Judge, besides the entire record of the case We have also minutely studied the dying-declaration (Ex. P 23) given by Lala (deceased).
9. It is not disputed by both the parties that the dispute had taken place at the field. From the record we are satisfied that the accused persons also had received injuries on their bodies and that the prosecution has not been able to explain those injuries.
10. In the case of Laxmi Singh and Ors. v. State of Bihar , their Lordship of the Supreme Court 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 drew 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.
11. Thus, in this case we find that the prosecution has not been able to explain the injuries on the persons of the accused persons. The evidence in this case, is of interested and related witnesses. It is also on the record that the relations between the two parties were not cordial. Also, the witnesses cannot be said to be independent and disinterested ones. Hence, there is serious infirmity in this case and on account of the fact that the prosecution has failed to explain the injuries of the accused persons, we are of the opinion that it casts doubt on the correctness of the prosecution story.
12. The important aspect of this case is as to which party was in possession of the disputed land. According to the learned Public Prosecutor, the complainant-party was in its possession, and the accused persons had come to field and attacked them.
13. On the other hand, the learned counsel for the appellants, argued that the disputed field was in their possession, and that this is fully proved by the statement of the prosecution witnesses. He brought to our notice statements of certain witnesses.
14. Ex. P 4 is the First Information Report lodged by Mst. Kailashi wife of deceased Lala. In the said report, she has mentioned that her father-in-law had sold the disputed land to Ghasi, resident of Shurakeer and that they had objection that sale. So, in the report itself, Mst. Kailashi mentioned that the said land had been sold away to Ghasi accused. It is another matter that the other family members had not agreed to that sale. It is, however, clear that the father-in-law of Mst. Kailashi had sold away the disputed land to Ghasi.
15. Gordhan PW 2 in his cross-examination has said that it is correct that they had the knowledge prior to the incident that Dalu had sold away the land to Ghasi. This witness had also stated that on receiving this information, they had applied to the Tehsil and taken some proceedings. Some report was also made at the police station. But he has not stated as to what happened to those proceedings that he had started in the Tehsil. Even, from the statement of this witness, it becomes clear that Dalu had sold away the land to Ghasi.
16. PW 3 Phunda, in his cross-examination, has said that it is correct that prior to the incident, Ghasi and his sons had plucked vegetables from the field in dispute and sold it away in the market.
17. It also clarifies the position that the accused persons were in possession of the field in dispute, otherwise, there could be no question of their plucking vegetables from that field. Those vegetables had been cultivated by the accused persons they had plucked it and sold it in the market. So, by the statements of the above witnesses it is established that the accused persons were in possession of the field.
18. Pokhar PW 4, in his cross-examination has said that 15 days before the incident, Ghasi had sowed Maize in the field of Dalu. This statement of this witness is a different one and contradictory to that of the other prosecution witnesses. No other witness has stated that Dalu had taken the land of Ghasi accused for cultivation. It is not the case of Dalu even that he had handed over the possession of the land to Ghasi and his sons for cultivation. There is no proof that the accused persons had cultivated the land on behalf of Daiu. Therefore, the statement of this witness Pokhar, appears to be incorrect one to this extent that Ghasi and his sons had cultivated Maize in the land in dispute on behalf of Dalu. Actually, Ghasi and his sons were in possession of this land and they had cultivated it.
19. Dalu PW 12 has not stated that he had given the land in dispute to Ghasi and others In his cross-examination, he has said that one Balchand Mahajan had scribed the document, which was later on registered also. In his police-statement (Ex. D. 9), this witness, at portion A to B, has stated that the document was scribed with regard to registry, and that, he had received Rs. 15, 200/- for the land in Hindoli and then, the registry was done. He has denied to have given this statement, in court. Ex. D 9 is own statement given to the police. So, after reading the statements, it is clear that the land had been sold away by Dalu, to Gheesa, and also, the document was registered. The accused persons have examined Balchand DW 1 who had scribed the document (Ex. D. 10).
20. Thus, after going through the entire prosecution evidence and document (Ex. D. 10) and the statement of DW 1 Balchand, it becomes clearly established that disputed land had been sold by Dalu to Gheesa, and that at the time when the occurrence had taken place, the accused persons were in its possession. We therefore, do not agree with the argument of the learned Public Prosecutor that the complainant-party was in possession of the disputed land at the time of the alleged occurrence.
21. The next argument is with regard to the dying-declaration of Lala (Ex. P. 23). In this regard, the learned counsel argued that this dying-declaration is a forged document which was prepared subsequent to the alleged occurrence, and that it was given to a police officer, and so, it should not be relied at all.
22. On the other hand, the learned Public Prosecutor placed reliance on the case of Kachwa v. State of Rajasthan 1985 RLR 92, which is a division bench case of this High Court. In that case, it was observed that a dying declaration made to police officer, during the course of investigation, is not distiguishable from that recorded by a Magistrate. Thus, the argument of the learned Public Prosecutor in this case is that the dying-declaration of Lala made to a police officer, can be relied upon.
23. We have perused the dying-declaration of Lala (Ex. P. 23). It is in the handwriting of SHO himself and bears his thumb impression of deceased Lala and witnesses, namely, Pokhar PW 4 and Shanker PW 7. We have read the statements of both these witnesses, and are of the opinion that none of them has supported and corroborated the story regarding the dying-declaration.
24. Pokhar PW 4 in his cross-examination, has said that when the police personnel had inquired from Lala, he had not reached there by that time. He has clearly stated that when he reached the spot, the police had already completed its interrogation, and Lala was lying outside the room. This shows that the dying declaration (Ex. P. 3) was not recorded by the SHO in presence of Pokhar PW 4. When Pokhar reached the spot, the SHO had already recorded the statement of Lala (Ex. P. 23). Thus Pokhar PW 4 has not supported the prosecution story.
25. Shanker PW 7 has stated that the police personnel had taken him to the house of Dalu and Gordhan, and that Pokhar was also with him. Then, in his cross-examination, he has said that when he reached there, the SHO was standing near Bhoora who was also there, and that, the SHO was not interregating Bhoora, and also that Pokhar PW 4 was also present there since before his arrival. This shows that Shanker PW 7 had reached here after the arrival of Pokhar PW 4. When Pokhar reached the spot, the SHO had already completed interrogating Lala. So it is clear that before the arrival of Shanker, the statement (Ex. P. 23) had already been written by the SHO. Thus, it is clear that neither PW 4 Pokhar nor PW 7 Shanker was the eye-witness to the recording of the dying-declaration (Ex. P. 23).
26. Mst. Kali PW 9 has stated that Lala had been beaten up mercilessly. She has admitted that Lala was elder brother of her husband. In her cross-examination, she has said that Lala died at house and that when he was taken out of the room and made lie on a cot, he had already died. From this statement, it is clear that Lala had died while he was inside the room and only his dead body was brought outside. According to the Investigating Officer, the statement of Lala was recorded while he was lying outside the room on a cot. How statement of dead person was recorded ? So, the statement of Mst. Kali PW 9 casts doubt in the genuineness of the statement (Ex. P. 23).
27. Abdul Hac PW16, ASI has stated in his examination-in-chief that both the hands of Lala had been fractured and he could not have signed on his statement, and that was the reason that his thub impresesion was taken on it (Ex. P. 23). In order to find out whether this fact is correct that both hands of Lala had been fractured and he was not in a position to sign his statement, we have looked into the statement of Dr. J.P. Sharma PW 13. This doctor had conducted the post-mortem examination and examined the injuries of deceased Lala. There was only one injury on the left hand of Lala deceased. This injury has been shown at No. 3. The first injury was on his right leg; the second on his left leg; the fourth was on the chin and the fifth one was on cranium; and the sixth injury was on the skull. So there was only one injury, namely, Injury No. 3 which was on the left hand of Lala there was no on injury his right hand When there was no injury on the right hand of Lala, he could have signed his statement. When, according to the doctor the left hand of Lala (deceased) had been injured still, the thumb impression of left hand was put on the statement (Ex. P. 23). So, this fact further creates doubt in the genuinessness of the statement (Ex. P. 23). We have also perused the original statement (Ex. P. 23), and find that that there are some interpolations in the said statement. In that statement, the words ma-ked A to B, "Waqt 9.50 a m." are in different ink than the ink of the other portion of the statement. Then the word "Saalga" at place marked Cha to Chha seems to have been added, later on. Then further at place Da, previously the word was, "who" but, there is over writing and the word "Sarchhi" has been written at that place.
28. ASI Abdul Huq, who had recorded the statement (Ex. P. 23), in his cross-examination, has denied die interpolations. But, we find that these interpolations are there, and they have been made subsequently. Thus after scrutinizing the evidence as well as the document (Ex. P. 23), we are of the opinion that the said statement was not given by Lala (deceased), but actually, it has been manipulated by the investigating offier, subsequently. It is a very sad state of affair that the police creates false documents in order to establish its case. We, thus find that the dying-declaration which has been relied upon by the learned Sessions Judge, is nothing but a forged document, and so we, do not place any reliance on it. The learned Sessions Judge, in our considered view, has therefore, committed an error in placing reliance on the said document.
29. As regarding the right of private-defence, the learned Sessions Judge has given finding that the accused, persons though, they had the right of private-defence, but they had exceeded the said right in the present case, this aspect, we have perused the evidence. Independently, we are also of the opinion that the accused persons in this case, did have right of private-defence to their persons and property both. The disputed land was in their possession and the members of the complainant party were the aggressors who had come there and started the altercation.
30. Phoonda PW 3, in his examination-in-chief has stated that while plucking the Bhindis the dispute between the accused person on one side, and Gordhan, Lala and Bhooriya on the other, had started Gordhan and started the dispute. This statement indicates that the accused person had not started the dispute, but Gordhan Lala and Bhooria had started it.
31. Pokhar PW 4, in his main statement has stated Gordhan and Lala had started the 'Marpit' (fight) first.
32. It is thus clear that the complainant-party was the aggressor and its members had started the dispute. It is also clear from the evidence on record that the accused persons were in possession of the disputed land, from where the members of the complaint-party wanted to dispossess them, and so they had started she 'Marpit' first. Hence, in this case the complainant-party was the aggressor, and when the accused persons were mercilessly beaten up & there was danger to their lives and poperty as, well, they were justified in exercising their right of private-defence by inflicting injuries to the members of the complainant-party. We, therefore, find that the learned Sessions Judge has rightly found that the accused persons in this case had the right of private-defence to their person and property. The argument was that where in a case, there was the right of private-defence, can Section 149 1PC be invoked ?
33. In the case of State of Bihar v. Nathu Pandey and Ors. , their Lordships of the Supreme Court, have observed as under:
It was found that persons who caused the two deaths exceeded the right of private defence as they inflicted more harm than was necessary for the purpose of defence. Held, (1) that none of the accused could be convicted under Section 302, IPC, (2) that none of the accused could be convicted under Section 302 read with Section 149 or Section 34 IPC.
34. In the case of Pehalwan v. State of Rajasthan 1977 WLN (UC)83, division bench of this Court, observed:
Once the right of private defence has been held to be established and only criticism is that it has been exceeded, then each individual accused can only be liable for the specific act and the applicability of Sections 34 and 149, IPC, cannot be invoked by the prosecution.
35. In the present case, we find that there is no evidence to the effect that the accused persons had formed an unlawful assembly, not is there any common object and that in furtherance of that common object, they had inflicted injuries to the members of the complainant-party and murdered Lala (deceased). We have already observed above that the complainant party was the aggressor in this case and the accused peresons in their self defence had inflicted injuries to its members. Therefore, the accused persons either with the aid of Section 149 or Section 34 IPC, cannot be held responsible for the offence of murder.
36. We would now examine the specific act done by each individual accused in this case, and if we find that there is evidence about specific act committed by some accused, then, certainly, he would be held guilty of that offence. The main point to be kept in mind is as to who had inflicted the fatal blow to Lala (deceased). In this connection, we have examined the prosecution evidence as a whole, but, we do not find any evidence to establish that such and such accused had inflicted the fatal blow to Lala which resulted in his death. It was the duty of the prosecution to have established as to which particular accused had inflicted the fatal blow resulting in the death of Lala (deceased). In this light, we are of the opinion that the the prosecution in this case, has not been able to establish beyond reasonable doubt as to which accused had inflicted the fatal blow to Lala. Therefore, benefit of doubt must go to the accused persons.
37. It was next argued on behalf of the appellants that when there are two types of statements of the prosecution witnesses one, in favour of the prosecution, and the other in favour of the accused, then that in favour of accused, shall have to be preferred.
38. The above argument of the learned counsel for the appellants, has substance We have gone through the statements of the prosecution witnesses, and find that, they have given two types of statements one favouring the prosecution and the other favouring the accused. In that case, the statements which are in favour of the accused, have to be accepted and in view of that serious doubt is created in the correctness of the prosecution story.
39. In the case of Sheoswarup's Mandal and Ors. v. The State of Bihar , wherein their Lordships of the Supreme Court have laid down the principles when the High Court can interfere in an appeal against acquittal, as under:
(1) an appellate court has full powers to review the evidence upon which the order of acquittal is founded; (1) the principles laid down in Bhubneshwar case, AIR 1934 PC 227; (2) afford correct guide for the appellate correct's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (1) 'substantial & compelling reasons'; (ii) good & sufficiently cogent reasons; and (iii) 'strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so, it should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which led it to hold that the acquittal was not justified.
40. Keeping in view, the above priniples laid down by Hon'ble the Supreme Court in the case of Bhubneshwar Mandal, we find that there is good and sufficient ground for interfering in the order of acquittal passed by the Id. Sessions Judge. We, after going through the entire evidence on record, reasons given and discussion made by the learned Sessions Judge, are of the opinion that there is no good ground or reason to interfere in the the order of acquittal. Even after reading the entire evidence we have come to our own conclusion that the order of acquittal passed by the learned Sessions Judge, needs no interference. We have also found contractions in the statement of PW 1 Mst. Nandubai, PW 2 Gordhan and PW 8 Mst. Kailashi. Also the prosecution witnesses have denied their police-statements. Therefore, no reliance can be placed on the testimony of such witnesses. The case has not been proved. Therefore, the learned Sessions Judge, in our view has not committed any error in acquitting the accused persons.
41. Summing up all, we are of the opinion that the prosecution has failed to esablish as to which accused had inflicted the fatal blow to Lala (deceased), which resulted in his death, beyond reasonable doubt. It is in the evidence that both the parties had inflicted injuries to each other, and that the accused persons had also received injuries, which have not been explained by the prosecution. The accused persons in this case, did have the right of private-defence to their lives as well as property, but, to some extent they had exceeded it, and so, it was duty of the prosecution to prove the specific act of each accused, in order to convict him, which the prosecution has failed to do.
42. In the result, D.B. Cr. Appeal No. 20/10, filed by the State, has no substance, and the same is hereby dismissed. D.B. Cr. No. 452/79, filed by accused persons, is accepted. All the accused persons while given benefit of doubt, are not found guilty of offences as held by the learned Sessions Judge. They are, therefore, acquitted of the said charges. They are already on bail. Their bail-bonds are cancelled. They need not surrender.