Rajasthan High Court - Jaipur
Bhupendra Singh vs State Of Rajasthan Through Pp on 21 February, 2022
Author: Anoop Kumar Dhand
Bench: Pankaj Bhandari, Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 46/2018
Bhupendra Singh S/o Shri Ratan Lal, R/o Salimpur, Police Station
Nadbai, District Bharatpur, Raj. At Present Confined In The
Sewar Jail, Bharatpur.
----Appellant
Versus
State Of Rajasthan Through PP.
----Respondent
Connected With D.B. Criminal Appeal (Sb) No. 259/2018 1 Bijendra Singh S/o Govind Singh, R/o- Village Bhutka, Police Station Nagar District Bharatpur.
2 Ghanshyam S/o Kherati, R/o- Village Bhutka, Police Station Nagar District Bharatpur.
----Appellants Versus State Of Rajasthan Through PP.
----Respondent For Appellant(s) : Mr. Anil Kumar Upman (Criminal Appeal No. 46/2018) Mr. C.P. Bhandari (Criminal Appeal No.259/2018) For Respondent(s) : Mr. Javed Chaudhary, AGA HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment Date of Reserve ::: 14/02/2022 Date of Pronouncement ::: Feb. 21, 2022 (Per Anoop Kumar Dhand, J) Reportable:
Both these criminal appeals arise out of a common judgment, hence same are being decided by a common judgment.(Downloaded on 23/02/2022 at 12:43:54 AM)
(2 of 14) [CRLAD-46/2018] Both the criminal appeals have been filed by the accused appellants under Section 374(2) Cr.PC against the judgment dated 11.01.2018 passed by the Court of learned Additional Sessions Judge No.2 Bharatpur (for short 'the learned trial court') in Sessions Case No.42/2016 (State of Rajasthan v.
Bijendra & Ors.), whereby the learned trial court while acquitting appellants Bijendra Singh & Ghanshyam for the offence under section 302 IPC, extended benefit of probation under Section 4 of the Probation of Offenders Act 1958 (for short 'the Act of 1958') for the offence under sections 341, 323 and 325 IPC and directed them to deposit compensation of Rs. 25,000/- each, under Section 5 of the Act of the Probation of Offenders Act, 1958 and also directed that out of the said amount of compensation, Rs.40,000/-
be paid to the wife of the deceased Smt. Neeraj. The learned trial court vide impugned judgment dated 11.01.2018 convicted and sentenced the accused appellant Bhupendra as under:-
Conviction for Sentence Fine Amount Default in the offence Awarded payment of fine under Section 341 IPC One month - -
simple imprisonment 323 IPC One year - -
rigorous
imprisonment
325 IPC Three years' 1000/- One month
rigorous rigorous
imprisonment imprisonment
302 IPC Life 50,000/- Six months'
imprisonment rigorous
imprisonment
All the sentences were ordered to run concurrently. (Downloaded on 23/02/2022 at 12:43:54 AM)
(3 of 14) [CRLAD-46/2018] Briefly, the facts arising out from the written report (Ex.P1) submitted by informant Rameshwar (PW1) are that on 7.7.2014, 'Barat' of Satish and Lokesh, sons of Ramdhan Jatav came to Bharatapur Chandan Garden Marriage Home, Near Sogariya Mohalla, Bharatpur. In the said 'Barat' his son Vikram Singh also came. In the night, on 8.7.2014 at about 1.30 A.M., he received a telephonic call of Bhoor Singh Jatav who told that his son has expired in a quarrel taken place in 'Barat'. Immediately after getting the information, he at around 3:00 p.m. reached Government Hospital, Bharatpur, where Bhoor Singh, Sangram Singh, Sher Singh, Sunil and other 'baratis', residents of the vicinity met him and they told that at the time of departure of Barat, Bachchu Singh, Govinda, Ghanshyam, Bijendra, Ramdhan, Kedar, Kailash, Prakash gave beating to his son- Vikram Singh by 'Sariya' (iron rod) and also gave beating from kicks and fists. Bachchu Singh was armed with 'Sariya' (iron rod) and rest of the persons gave beating to Vikram Singh from kicks and fists. When Sangram Singh, Sher Singh, Sunil and Bhoor Singh were tried to intervene then these persons also gave beating to them with kicks and fists, due to which these persons also sustained injuries. In injured condition Vikram Singh was taken to Arora Hospital, where he was declared dead. Dead body of Vikram Singh was kept in the mortuary of the Government Hospital. His son Vikram Singh was murdered by Bachchu Singh, Govinda, Ghanshyam, Vijendra, Ramdhan, Kedar, Kailash and Prakash from 'Sariya' (iron rod) and kicks and fists. Upon this written report (Ex.P1), first information report No.574/2014 (Ex.P23) was registered at Police Station, Mathura Gate, District Bharatpur for the offence under Sections 143, 323, 341 and 302 IPC against the accused persons and other (Downloaded on 23/02/2022 at 12:43:54 AM) (4 of 14) [CRLAD-46/2018] co-accused persons. After conclusion of investigation the Police submitted charge-sheet against Bhupendra Singh, Bijendra Singh and Ghanshyam for the offence under Sections 323, 341, 325, 302 IPC. Since the co-accused Bachchu Singh was absconding, therefore, investigation was kept pending against him under Section 173(8) Cr.PC. Learned Trial Court framed the charges against the above-named accused persons for the offence under sections 323, 341, 325 and 302/34 IPC, who denied the charges, pleaded not guilty and claimed trial.
During the course of the trial, in support of its case the prosecution examined as many as 17 witnesses and exhibited 50 documents. In defence, on behalf of the accused-appellants, no witness was examined but 7 documents were exhibited. The accused-appellants were examined under Section 313 Cr.P.C. and they controverted the evidence adduced by the prosecution witnesses against them during the course of the trial. The accused appellants in their statements recorded under section 313 Cr.P.C. specifically stated that they have been falsely implicated in the case as they are innocent.
Learned trial court after hearing the arguments of both the sides, passed the impugned judgment of conviction. The accused appellants aggrieved and dissatisfied with the impugned judgment passed by the learned trial court, have preferred instant criminal appeals before this Court.
Learned counsel for the accused appellants vehemently submitted that the accused appellants are innocent, they have not committed any offence and they have been falsely implicated in the instant case. Counsel further submitted that the prosecution (Downloaded on 23/02/2022 at 12:43:54 AM) (5 of 14) [CRLAD-46/2018] has failed to prove its case against the accused appellants beyond reasonable doubt.
Learned counsel for the accused appellant Bhupendra Singh submitted that appellant Bhupendra Singh was not named in the FIR and his name was introduced by the other witnesses when the police statements were recorded. Counsel further submitted that as per version of the eye witnesses they were present when the FIR was lodged by the informant, hence it is a case of over implication. Learned counsel further submitted that the date of the alleged incident is the intervening night of 7.7.2014 and 8.7.2014 while he was arrested on 20 th August, 2014 and after 41 days of the incident, recovery of 'lathi' was made at the instance of Bhupendra Singh on 21st August, 2014. Counsel further submitted that the months of July and August are rainy seasons and the recovery of 'lathi' has been made from an open place. Counsel submitted that no prudent person can believe that blood may remain on the 'lathi' even during the rainy season. Hence the possibility of false implication of accused appellant Bhupendra Singh can be ruled out. Counsel submitted that the deceased has sustained only one fatal blow on his head which is the cause of death. Counsel submitted that the single blow on the head of deceased has been assigned to two accused persons namely; Bachchu Singh and Bhupendra Singh. During the course of trial, the prosecution witnesses have tried to save co-accused Bachchu Singh and they have implicated the accused appellant- Bhupendra Singh falsely. Counsel further submitted that one injury was assigned to two co-accused persons. Hence, no offence under Section 302 IPC is made out against accused appellant Bhupendra Singh.
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(6 of 14) [CRLAD-46/2018] Counsel argued in the alternate that there was neither any intention nor any motive on the part of accused appellant Bhupendra Singh to cause the incident. Counsel submitted that the case of accused appellant Bhupendra Singh does not travel beyond Section 304 Part-II IPC. The conviction of the accused appellant Bhupendra Singh is based on statements of the eye witnesses, whose presence on the spot is highly doubtful. Lastly, counsel argued that there is contradiction about the weapon used by the appellant at the time of incident. Counsel submitted that some of the witnesses have stated that the accused appellant Bhupendra Singh committed the incident by using 'Sariya' while 'Lathi' was recovered at his instance. Hence serious doubt has been created by the prosecution witnesses about the truth of the incident.
Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the counsel for the accused appellants and submitted that PW-2 Sher Singh, PW-5 Ghanshyam and PW-7 Sangram Singh are injured eye witnesses of the incident and PW-8 Sunil eye witness of the incident, who have proved the involvement of the appellants beyond reasonable doubt. Submissions have been made that the statements of these witnesses have been fully corroborated by the recovery of the weapon of the offence which has been proved and, therefore, based on the strength of the testimony of these witnesses, the prosecution has been able to prove the offences alleged against the accused-appellants beyond reasonable doubt and, therefore, the trial Court was justified in convicting the accused-appellant Bhupendra Singh for the offence under Sections 341, 323, 325 and 302 IPC and convicted the appellants Bijendra Singh and (Downloaded on 23/02/2022 at 12:43:54 AM) (7 of 14) [CRLAD-46/2018] Ghanshyam for the offence under Sections 341, 323 and 325 IPC by the impugned judgment. Thus, the impugned judgment passed by the trial court warrants no interference.
We have considered the rival submissions made at the Bar and also gone through the record of the trial Court as well as the judgment dated 11.1.2018 impugned herein.
PW-1 Rameshwar is father of the deceased- Vikram Singh, who submitted written report (Ex.P-1) on the basis of the information received by him. As per the testimony of this witness, his son went in a 'Barat' at Bharatpur on 07.07.2014 where he expired due to quarrel taken place in the said 'Barat'. Ghanshyam, Sangram Singh, Sunil, Sher Singh and others told him that Govinda, Bijendra, Ghanshyam, Bhupendra, Ramdhan, Kailash and Prakash gave beating to Vikram from 'Saria' and fist blows. When Ghanshyam, Sher Singh and Sangram tried to intervene, they were also beaten, due to which injuries were caused to them.
Perusal of the statement of this witness reveals that he is not an eye-witness of the occurrence and he lodged the report on the basis of the information furnished by other eye-witnesses.
PW-2-Sher Singh, PW-5- Ghanshyam and PW-7- Sangram Singh are injured eye-witnesses of the incident in whose presence the incident had taken place. When they tried to intervene to save the deceased, they were also beaten and injuries were also inflicted to them. PW-2 Sher Singh has stated that on 07.07.2014, the 'Barat' of Satish and Lokesh came at Bharatpur in Chandan Garden Marriage Home, where dispute arose and quarrel took place. Bhupendra caused injury by 'lathi' on the person of Vikram. The co-accused Ghanshyam, Gajendra and Govinda inflicted injuries to the other injured persons. They (Downloaded on 23/02/2022 at 12:43:54 AM) (8 of 14) [CRLAD-46/2018] also gave beating to him and caused injuries to his index finger as also on right shoulder, which is clear from the injury report (Ex.P-8). PW-5 Ghanshyam is also an injured eye-witness who sustained injuries and fracture in this incident. He has stated that Bijendra and Bhupendra were armed with 'lathies' and they started beating the 'baraties' and inflicted injuries to them. The injuries sustained by him are grievous in nature and the injury report is Ex.P10 and the X-Ray report is Ex.P17. Both the reports clearly indicate that he sustained fracture of ulna bone. Similarly, PW-7- Sangram Singh, an injured eye-witness of the incident, also sustained injuries and fracture of ulna bone in this occurrence. This witness had specifically stated that Bhupendra, Bijendra, Govinda and Ghanshyam were beating Sher Singh and Ghanshyam. Bhupendra caused injury on the head of Vikram from 'Saria'. Bijendra was armed with 'lathi'. All these accused gave beating to Ghanshyam and Sangram Singh, due to which they sustained injuries. Ex.P13 is his injury report which indicates that he had sustained injuries. Ex.P16 is his X-Ray report which also indicates that he had sustained fracture of ulna bone. Apart from these injured eye-witnesses, PW-6 Murari Lal, PW-8 Sunil and PW-9 Bhoor Singh are other eye-witnesses of the incident who have proved that the appellants have committed the incident and caused injuries.
PW-3 Harish and PW-4 Harishankar did not support the prosecution story and they have turned hostile.
PW-10 Dr. Sunil Pathak has proved the Post-mortem report (Ex.P14) which indicates that Vikram died due to head injury. He has also stated in his cross-examination that there was no fracture below the injury No.3 and the same was simple in (Downloaded on 23/02/2022 at 12:43:54 AM) (9 of 14) [CRLAD-46/2018] nature. This witness has not specifically stated that the injury No.4 was sufficient to cause death of the deceased in the ordinary course of nature, though this injury was on the head of the deceased.
PW-11 Dr. R.D. Sharma examined the injured- Sher Singh and prepared his injury report but he did not find any fracture. He has also examined the injured Sangram Singh and Ghanshyam and found fractures of ulna bone on the person of both these persons. He prepared their X-Ray reports which are Ex.P16 and Ex.P17 respectively. Similarly, PW-17 Dr. Phool Singh has examined these injured persons and prepared their injury reports as Ex.P8, Ex.P10 and Exh.P13. From the injury reports, it is clear that these persons have sustained injuries.
During the course of investigation, a 'lathi' was recovered at the instance of the appellant Bhupendra. Vide Ex.P31, PW-16- Mahaveer Singh, Investigating Officer, after seizure of the 'lathi', sent the same for examination to Forensic Science Laboratory (FSL) and as per FSL report (Ex.P47), there was human blood on the 'lathi'.
PW-15 Pooja Avana recorded the statements of PW-4 Harishankar and PW-3 Harish, who did not support the prosecution story and turned hostile. She has also recorded the statement of PW-6 Murari Lal but in her cross-examination she has stated that the name of the Bhupendra was not found to be involved in the incident in the statements of these three witnesses. PW-16 Mahaveer is the Investigating Officer who conducted investigation and submitted charge-sheet against the appellants for the offences stated above.
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(10 of 14) [CRLAD-46/2018] Perusal of the evidence available on record indicates that the incident arose on a very trivial issue regarding return of 'Barat' in the Bus, which resulted in their engaging in heated altercation and suddenly at the spur of the moment, the appellant Bhupendra inflicted a single injury on the head of the deceased Vikram by 'lathi' and the appellants Bijendra Singh and Ghanshyam caused injury and fracture on the person of Sangram Singh and Ghanshyam.
On a careful perusal of the testimony of the material prosecution witnesses, we find that there was no premeditation to the incident and the fatal injury was inflicted to Vikram by the appellant Bhupendra by 'lathi', which is commonly carried in villages. Based on which, it cannot be said that he was carrying 'lathi' with him with intention to commit the crime. The single injury inflicted by the appellant Bhupendra proved fatal, as has been deposed by PW-10 Dr. Sunil Pathak, who conducted the Post- mortem upon the body of the deceased and prepared the Post- mortem report (Ex.P14).
Further, it is important to notice that Dr. Sunil Pathak (PW10) in his cross-examination opined that the Medical Board has not mentioned injury No.4 i.e. injury on the head 'sufficient to cause death in the ordinary course of nature'. He has further stated in his cross-examination that for injury No.3, there was no excess pressure and the same was treated as simple in nature which leads to draw inference that the accused had not repeated any blow and had apparently no intention to kill Vikram. Besides this, as per the information of this witness, the injury No.4 was not sufficient in the ordinary course of nature to cause death of (Downloaded on 23/02/2022 at 12:43:54 AM) (11 of 14) [CRLAD-46/2018] Vikram Singh. Therefore, in our opinion, the offence cannot travel beyond Section 304 Part-II IPC.
The Hon'ble Apex Court in Jugut Ram v. State of Chhattisgarh, reported in 2020 Cr.L.R. (SC) 1100, has held as under:-
"7. A lathi is a common item carried by a villager in this country, linked to his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. In a case like the present, of an assault on the head with a lathi, it is always a question fact in each case whether there was intention to cause death or only knowledge that death was likely to occur. The circumstances, manner of assault, nature and number of injuries will all have to be considered cumulatively to decipher the intention or knowledge as the case may be. "
The Hon'ble Apex Court while dealing with the case of Jugut Ram (supra) took into consideration the Judgment delivered by the Hon'ble Apex Court in Joseph v. State of Kerala, reported in (1995) SCC (Crl.) 165, in which it was observed as under:-
"3. ....The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years' RI."
The Hon'ble Apex Court has held in the case of Chamru Budhwa vs. State of Madhya Pradesh, reported in AIR 1954 SC 652 that 'the appellant dealt a blow on the head of the deceased with a lathi and which proved fatal. The injury was medically opined sufficient in the ordinary course to cause death. (Downloaded on 23/02/2022 at 12:43:54 AM)
(12 of 14) [CRLAD-46/2018] Conviction under Section 302, IPC followed.' The Hon'ble Apex Court in the aforesaid case has observed as under:
"5. It now remains to consider whether the offence which he committed falls within the first part or the second part of Section 304 of the Indian Penal Code. When the fatal injury was inflicted by the appellant on the head of the deceased by only one blow given in the manner alleged by the prosecution it could as well be that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304 of the Indian Penal Code.
6. We accordingly allow the appeal to this extent that the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence of transportation for life awarded to him will be set aside, but the appellant will be convicted of having committed the offence under Section 304 Part II of the Indian Penal Code and will be sentenced to seven years' rigorous imprisonment."
In the case of Gurmukh Singh vs. State of Haryana (2009) 15 SCC 635, the Hon'ble Supreme Court has held that "the deceased died three days later after an assault on the head with a lathi opined to be sufficient in the ordinary course of nature to cause death. Holding that the assault was made on the spur of the moment without premeditation the conviction was altered from one under Section 302 to Section 304 Part II and a sentence of seven years was handed. Similarly in Mohd. Shakeel vs. State of A.P., (2007) 3 SCC 119, the appellant had caused only one injury and had suffered injury himself also. Altering the conviction from under Section 302 IPC to 304 Part II, the appellant was sentenced to the period undergone since 1999."
Hon'ble Supreme Court in the case of Shankar @ Kalu V. State of Madhya Pradesh reported in 1979 SCC (Criminal) 632 has held that 'where occurrence took place suddenly and the accused caused injury with a dagger on the neck, altered the conviction from Section 302 IPC to Part II of Section 304 of IPC'. Similarly in the case of Kala V. State of (Downloaded on 23/02/2022 at 12:43:54 AM) (13 of 14) [CRLAD-46/2018] Rajasthan reported in 1992 Criminal Law Report (Rajasthan) 178, the Division Bench of this Court, wherein the accused had struck the arrow on the chest of the deceased resulting in his death on finding that there was no intention on the part of the accused to cause death of the victim, converted conviction from Section 302 IPC to Section 304-II IPC.
From the discussion made here-in-above the conviction of the appellants Bhupendra Singh, Bijendra Singh and Ghanshyam is maintained for offences under Section 323, 325 and 341 IPC and the appeal filed by Bijendra Singh and Ghanshyam stands dismissed.
In view of discussion made here-in-above, the appeal filed by the appellant Bhupendra Singh is partly allowed, his conviction under Section 302 IPC is set aside, in-stead we convict Bhupendra Singh under section 304 Part-II IPC. He is in custody since 20.08.2014 i.e about 7 years 6 months. Thus, we award sentence of imprisonment to accused appellant Bhupendra Singh for the period already undergone by him with a fine of Rs.50,000/- and in default of payment of fine to further undergo six months simple imprisonment. Appellant- Bhupendra Singh shall be released from custody upon depositing the amount of fine of Rs.50,000/-, if not required in any other case. Out of the said compensation amount, Rs.40,000/- be paid to the wife of the deceased.
Impugned judgment of the trial Court stands modified as indicated above.
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(14 of 14) [CRLAD-46/2018] Record of the case be sent back to the trial Court forthwith.
(ANOOP KUMAR DHAND),J (PANKAJ BHANDARI),J Sharma NK/58-59 (Downloaded on 23/02/2022 at 12:43:54 AM) Powered by TCPDF (www.tcpdf.org)