Rajasthan High Court - Jaipur
Sujya And Ors. vs State Of Rajasthan on 1 October, 2002
Equivalent citations: 2003CRILJ1612, 2003(3)WLC144
JUDGMENT F.C. Bansal, J.
1. The instant appeal stems from the judgment dated December 21, 1984 passed by learned Sessions Judge, Tonk in Sessions Case No. 21/1984 whereby he convicted and sentenced the appellants as under :--
Suyya, Ram Deva & under Section 307 or in the alter- 3 years R.I. and a fine of Rs. 200/-
Raj Jeewan each native Under Section 307/34, IPC and in default of payment of fine to under Section 447, IPC further undergo two months R.I. 3 months rigorous Imprisonment 2. Both the substantive sentences were ordered to run concurrently.
3. The case against the appellants arose out of a written information Ex, P14 given by Nanulal S/o Nanda, by caste-Jat, R/o village Bawdi to the police station Todaraisingh to the effect that on October 10, 1983 Kishanlal spoted Sujya, Ramdeva, Ramjeewan, Mst. Mangi and Mst. Rama, who were grazing catties in their field known as Khedi Wala bearing Khasra No. 802. His brother Kishanlal dissuaded them not to graze the catties in that Beeda (uncultivated field) whereupon all the accused assaulted him with Kulhadi (axe) and lathies. When his father Nanda tried to intervene and rescue Kishanlal he was also beaten up. They were rescued by Ramlal S/o Kalvan Kunihar and Surgyani S/o Pratap Harijan. Kishanlal and Nanda received many injuries. They were taken to Civil Hospital, Todaraisingh and were admitted there. On this report dated 10-10-1983. Case No. 111/83 vide formal FIR Ex. P15 was registered and investigation commenced, Hotilal, SHO who registered the case, reached at the spot and prepared Site Plan Ex. P16. He also seized the blood stained clothes of Kishanlal and Nanda. The injury report of Kishanlal Ex. PI and his X-Ray plates Ex. P2, Ex. P3 and Ex. P4 as well as X-ray report Ex. P5 were received by him. On the basis Of the X-Ray plates, Radiologist Dr. D.N. Sinha (PW. 1) opined vide Memo Ex. P5 that there was fracture of the lower 1/3rd part of the right fibula. There was fracture of base of the middle finger and also there was fracture of the upper 1/3rd of the left ulna. Nanda was medically examined vide Injury Report Ex. P6 and his right forearm and left wrist were X-Rayed vide plates Ex. P7 and Ex. P8. Further his elbow joint was X-Rayed vide Ex.-P9. It was found that there was crack fracture of the upper 1/3rd of the right ulna of Nanda. Copy of Khasra Girdawari of Khasra No. 802 of village Bawdi Ex. P11 was obtained along with the copy of trace and another Jamabandi Khatoni regarding same Khasra No. 802 Ex. P13. After investigation, all the five accused were challaned before the learned Chief Judicial Magistrate, Tonk who committed them for trial to the Court of learned Sessions Judge, Tonk.
4. The accused were charge-sheeted for the offences punishable under Sections 147, 148, 447, 307 and 307 read with Section 149 of the Indian Penal Code. The charges were read over to them and explained, to which they pleaded not guilty and claimed to be tried. During trial, the prosecution examined as many as 9 witnesses. In their statements recorded under Section 313, Cr. P.C. the appellants claimed innocence. Appellants Sujya and Ramdeva also stated that they were beaten up by Nanda and Kishanlal in the alleged incident. In defence, DW 1 Dr. M.K. Bohra was examined.
5. Learned trial Judge, on hearing the final submissions, convicted and sentenced the accused-appellants as indicated herein-above. Accused Mst. Mangi and Mst. Rama were acquitted from all the charges framed against them. The appellants were acquitted of the remaining charges.
6. I have heard learned counsel for the appellants and learned Public Prosecutor for the State and with their assistance, carefully scanned and scrutinized the material on record.
7. PW. 1 Dr. Deep Narain Sinha stated in his statement that on October 10, 1983 he was posted as Medical Officer, Government Hospital, Todaraisingh. On that day he examined Kishanlal S/o Nanda Jat, R/o Village Bawdi and found the following injuries :--
(1) Lacerated wound bleeding transverse in direction -- 2" x. 0.2" x 0.2" on middle of scalp. (2) Lacerated wound bleeding -- 1" x 0.2" x 0.4" -- 0. 5" on the ant, surface & 0.5" on the post, surface & cutting through 0.4" deep on the upper part of the left ear. (3) Lacerated wound bleeding -- 2" x 0.2" x 0.2" on the left side of the scalp just behind the left ear. (4) Incised wound bleeding -- 1" x 0.1" x 0.1" on the right side of the face, 0.5" out to the outer angle of right eye. (5) Abrasion 1" x 1" on the medial surface of right elbow.
(6) Haematoma 4.5" x 2.5" on the post, surface of right forearm, 3" above right wrist.
(7) Lacerated wound 0.2" x 0.1" on the dorsal surface of the provinal just skin deep, interphalangeal joint of right index finger. (8) Haematoma with lacerated wound --1.5" x 0.5" on the proximal phalaux of the right middle finger including interphalangeal joint. 0.2" x 0.1" skin deep on the dorsal surface of the proximal interphalangeal joint. (9) Haematoma with abrasion 2" x 1" on the lateral surface of the left elbow.
(10) Haematoma with lacerated wound 4" x inciselong the whole of the joint of the left forearm. 3" below left elbow. 1" x 0.1" x 0.4" on the lateral part of haematoma. (11) Haematoma with abrasion 1.5" x 1" on the dosal surface of the left wrist joint.
(12) Haematoma with vertical in direction -- 9" x 0.8" on the left side of the back, 3" below the left shoulder. (13) Haematoma -- 4" x 1" on the left side of the back. 7" below the left shoulder and crossing injury No. 12. (14) Haematoma -- 9" x 1" on the left side of the back. 6" below the left shoulder.
(15) Haematoma red in colour, transverse in direction -- 4" x 1", 12" below the nape of neck. (16) Haematoma, red in colour, vertical in direction -- 4" x 1" on the lateral surface of the left thigh. (17) Haematoma red in colour, oblique in direction -- 6" x 1.8" on the back of the left hip.
(18) Haematoma red in colour, transverse in direction -- 4" x 1.2" on the lateral surface of the left thigh, 10" above the left knee. (19) Incised wound -- vertical in direction 0.8" x 0.1" x 0.1" on the ant, surface of the left leg. 7" above the left ankle. (20) Incised wound vertical in direction 1.8" x 0.2" x 0.3" on the anterior surface of the right leg. 5" above the right ankle.
8. Dr. Sinha also stated that injuries No. 4, 19 and 20 were caused by sharp weapon and the remaining injuries were of blunt weapon. X-Ray was advised for Injuries Nos. 1, 6, 8 and 10. The remaining injuries were simple in nature. He prepared Injury Report Ex. P1 which bears his signature. Duration of all the injuries was within 24 hours. Dr. Sinha further stated that he received X-Ray plates Ex. P2. Ex. P3 and Ex. P4 and found injuries No. 6, 8 and 10 grievous in nature. From X-Ray, it was found that there were fractures of the lower 1/3 of the right ulna, base of the middle phalanx of the right middle finger and the upper 1/3rd of the left ulna. It would be pertinent to mention here that all these grievous injuries were caused by blunt weapon.
9. It was further stated by Dr. Sinha that he examined Nanda S/o Kana Jat, R/o village Bawdi on the same day and found the following injuries on his person :--
(1) Lacerated wound 1" x 0.1" x 0.2" on the right side of the scalp. 4.5" above right ear.
(2) Haematoma -- 1.5" x 1" on the left side of the scalp. 3" above the left ear.
(3) Haematoma with abrasion - 1.5" x 1" on the lateral surface of right forearm, 4.5" below the right elbow.
(4) Haematoma -- 2.5" x 1.5" on the postero medial surface of the right forearm. 3" above the right wrist joint.
(5) Haematoma with abrasion -- 1.5" x 0.5" on the dosal surface of the right Ist metacarpal bone.
(6) Haematoma -- 4" x 1" on the whole of the dosal surface of the right middle finger including the metacarpal phalaugial joint.
(7) Haematoma with abrasion -- 3" x 1" on the dorsal surface of the Ist left meta carpal bone including the metacarpal phaluagial joint and wrist.
(8) Haematoma -- 3" x 1" on the whole of the lateral part of the dorsal surface of left palm.
(9) Haematoma -- 4" x 3" on the anterior surface of the left thigh. 4" above the left knee joint.
(10) Haematoma -- 4" x 4" on the antero-lateral surface of the left knee.
(11) Haematoma -- 4" x 3" on the anterior surface of the right thigh. 5" above right knee.
10. Duration of injuries was within 24 hours. All the injuries were caused by blunt weapon. X-Ray was advised for injuries Nos. 3, 4, 6 to 8 and the remaining injuries were simple in nature. Therefore, he received X-Ray plates and found that injury No. 4 mentioned in the injury report Ex. P6 was grievous in nature as there was crack fracture of the upper 1/3rd of the right ulna. He prepared injury report Ex. P6 and X-Ray reports Ex. P5 and Ex. P10 which bear his signature.
11. There is no ground to disbelieve the testimony of Dr. Sinha. Learned counsel for the appellants also did not challenge the truthfulness of Dr. Sinha, therefore, it has, been proved beyond reasonable doubt by the prosecution that on medical examination, 20 injuries were found on the person of Kishanlal and 11 injuries were found on the person of Nanda. Out of 20 injuries sustained by Kishanlal, injuries Nos. 4, 9 and 20 were of sharp weapon and the remaining injuries were caused by blunt weapon. Injuries No. 6, 8 and 10 which were of blunt weapon; were grievous in nature. Out of 11 injuries sustained by Nanda, one injury was of grievous nature. All the injuries were caused by blunt weapon. Duration of all the injuries of both the injured was within six hours. It was alleged by the prosecution that the incident took place on 10-10-83. Both the injured were medically examined on the same day. In view of the duration of the injuries, it can be safely held that both the injured persons sustained these injuries in the alleged incident.
12. Learned Sessions Judge has found that both the injured were caused above mentioned injuries by the appellants. Learned counsel for the appellants contended that injured Kishanlal and Nanda have not been found reliable by the trial Court qua Mst. Mangi and Mst. Rama and, therefore, their testimony cannot be relied upon against the appellants also. In nay opinion, this contention has no force. The Apex Court in State of Punjab v. Suraj Ram 1995 Cri LR (SC) 618 : (1995 Cri LJ 4161) held that the last finding of the High Court is solely based on the ground that the claim of the two eye-witnesses that they had seen the murder of Brij Lal was highly improbable. Even if we proceed on the assumption that the finding is unexceptionable still then the High Court was not at all justified in rejecting their evidence so far as it related to the murder of Tulsa Ram on that score alone for law is well settled that when evidence of a witness is rejected in part a duty is cast upon the Court to sift his evidence with more than ordinary care and caution to find out whether the rest of the evidence is fully trustworthy, either intrinsically or by reason of corroboratlon from other trustworthy sources. Indeed, as noticed earlier, the High Court itself negatived an identical threshold contention raised by the respondents based on the maxim "Falsus in uno, Falsus in Omnibus."
13. In Nadodi Jayaraman v. State of Tamil Nadu, 1992 Cri LR (SC) 555 : (1993 Cri LJ 426), it has held that the Maxim falsus in uno falsus in ominbus cannot be mechanically applied and the mere fact that the evidence of some of the prosecution witnesses was found unsafe for convicting the co-accused, is by itself no ground for rejecting the whole body of their testimony.
14. Keeping in View the above principles laid down by the Hon'ble Supreme Court, I have scrutinized the testimony of Kishanlal and Nanda. In my view, their testimony qua the appellants is reliable. Learned Sessions Judge also has found it reliable so far as the appellants are concerned.
15. P.W. 4 Nanda stated on oath that on the day of incident at about 2 : 30 p.m., he was grazing the buffaloes in his field. Kishanlal had gone out of the field and when he heard some noise, he went to the place of occurrence and found Sujya, Ramdeva and Ramjeewan beating Kishanlal, Ramjeewan was having an axe, Sujya and Ramdeva were armed with lathies. Mangi and Rama were armed with Dantalies (sickles). When he asked the accused not to beat Kishanlal, he was also beaten up. Nanda further stated that Ramdeva and Sujya caused injuries with lathies on his person. Mangi and Rama inflicted injuries with sickles. Thereafter, he became unconscious. He also stated that appellants were grazing their catties in the field which belongs to him. He is Khatedar of that land. It was also stated by him that both he and Kishanlal were taken to hospital where they were examined by the Doctor.
16. P.W. 5 Kishanlal stated on oath that he was ploughing his field on the day of incident. From there he went to his another field bearing Khasra No. 802. He also stated that there was no crop in Beeda of around 1-3/4 Bighas' which was part of Khasra No. 802, he found all the accused grazing their catties in his Beeda (uncultivated land). Appellants Sujya and Ramdeva were armed with lathies and Ramjeevan was having an axe. Both the lady accused were having sickles. He asked the accused not to graze the catties in that Beeda but the accused did not listen to him and assaulted him. Sujya and Ramdeva caused injuries with lathies on his hand, leg and back of the chest. Ramjeewan inflicted injury with an axe on his head, he fell down and thereafter an-other injury was caused on his leg by Ramjeewan, He made hue and cry whereupon his father Nanda reached there and asked the appellants why they were giving beating to Kishanlal. Thereafter his father Nanda was also beaten up. A little later, Surgyani and Ramlal came there and took him and his father to Todaraisingh.
17. I have perused the statements of Nanda and Kishanlal minutely and carefully. They get support from medical evidence. Injuries found on the person of Nanda and Kishanlal can neither be self inflicted nor accidental. As already stated, all the injuries found on the person of Nanda were of blunt weapon, therefore, the testimony of Kishanlal and Nanda proves beyond reasonable doubt that the appellants Sujya and Ramdeva had caused injuries with lathies on the person of Nanda. So far as Kishanlal is concerned, he sustained 20 injuries in the alleged incident, out of which three were caused by sharp weapon and the remaining were of blunt weapon. From the testimony of Kishanlal and Nanda, it also stands proved that injuries No. 4, 19 & 20 were caused by the appellant Ramjeewan with an axe and the remaining injuries were inflicted by the appellants Sujya and Ramdeva. To this extent, the testimony of Kishanlal and Nanda is reliable.
18. Learned Sessions Judge has also placed reliance upon the testimony of alleged eye-witnesses Surgyani and Ramlal. But having perused their testimony, I have come to the conclusion that they were not the eyewitnesses of the alleged occurrence. PW. 6 Surgyani stated in his cross-examination that when he reached on the spot, he found both Nanda and Kishanlal lying there. He also stated that Ramlal came there after his arrival. PW. 7 Ramlal also stated that when he went to the place of occurrence, he found Nanda and Kishanlal lying injured on the spot. Therefore, it is clear that both Surgyani and Kishanlal did not witness the appellants causing injuries to Nanda and Kishanlal and they had reached at the place of occurrence after the incident. But, from the evidence of injured Kishanlal and Nanda supported by medical evidence, it has been proved beyond reasonable doubt by the prosecution that all the appellants had caused injuries with their respective weapons on the person of Kishanlal and the appellants Sujya and Ramdeva had also caused injuries with lathies on the person of Nanda,
19. Learned counsel for the appellants also contended that the field in which the incident took place was not in the possession of the complainant party but it was in the possession of the appellants and, therefore, no offence under Section 447 is made out against them. He also contended that first of all Nanda and Kishanlal had caused injuries to Sujya and Ramdeva and thereafter in exercise of their right of private defence of the body, the appellants had caused injuries on the person of Nanda and Kishanlal and, therefore, no offence had been committed by the appellants. I have given my thoughtful consideration to the submissions made by learned counsel for the appellants. The incident took place in the field bearing Khasra No. 802. This fact stands proved from the testimony of Nanda and Kishanlal and P.W. 9 Hotilal, the Investigating Officer, P.W. 2 Abdul Rahman, Patwari stated on oath that land Khasra No. 802 was in the Khatedari of Nanda. He had also proved Khasra Girdawari Ex. P11 and Jamabandi Ex. P13. These documents also proves that Nanda, the injured was the Khatedar of the field bearing Khasra No. 802 at the time of the alleged incident. No evidence has been adduced by the appellants to contradict this fact and to prove their possession over this land. Therefore, the contention of learned counsel for the appellants that the field in which the incident took place was in the possession of the appellants, deserves to be rejected. So far as injuries sustained by the appellants Sujya and Ramdeva are concerned, as per statement of DW 1 Dr. M.K. Bohra, on October 11, 1983 he found three simple injuries of blunt weapon on the person of both Sujya and Ramdeva each. Looking to the nature and number of the injuries sustained by the appellants Sujya and Ramdeva, I am of the opinion that these injuries were caused by Nanda and Kishanlal while exercising their right of private defence of body. The appellants were aggressors and first of all they started causing injuries to Kishanlal and after that the appellants were also beaten and caused injuries by Kishanlal and Nanda or by any of them. Therefore, second contention of learned counsel for the appellants also has no force.
20. Learned Sessions Judge has found all the appellants guilty under Section 307 or in the alternative under Section 307/34, IPC. Learned Sessions Judge was of the opinion that Kishanlal received as many as 20 injuries practically on all the parts of his Dody. Three injuries were caused by sharp edged weapon. Injuries were on his head and face and near the eyes which are vital parts of the body. Nanda was also mercilessely beaten. Therefore, it can be inferred that there was intention of the appellants to cause death of Kishanlal and Nanda and hence they are guilty under Section 307, IPC or in the alternative under Section 307/34, IPC. I am unable to agree with the conclusion arrived at by learned Sessions Judge. As already stated, Nanda sustained eleven injuries out of which only one injury was of grievous nature. All the injuries were caused by blunt weapon. Grievous injury was not on the vital part of the body but it was on the left forearm. There was fracture of upper 1/ 3rd of left ulna. Kishanlal suffered twenty injuries. Injuries caused by sharp weapon were simple in nature. All the three grievous injury were of blunt weapon. No grievous injury was on the vital part of the body. There were fractures of right ulna, middle finger and left ulna. Incident took place all of a sudden. The appellants caused injuries without pre-meditation in a sudden fight when Kishanlal asked the appellants not to graze their catties in his uncultivated land and started taking those catties out of his field. There was no intention of the appellants to cause death of Nanda and Kishanlal or to cause such injury to them as was sufficient or likely to cause death. There was no possibility of causing death by any of the injuries sustained by Nanda and Kishanlal. Therefore, in my opinion, the appellants cannot be held guilty under Section 307 or under Section 307/34, IPC and they are entitled to get acquittal from this charge: As stated above, the appellants Sujya and Ramdeva caused injuries with lathies in the person of Nanda, out of eleven injuries sustained by Nanda, one was grievous in nature which was caused by the appellant Sujya as per statement of Nanda, therefore, the appellant Sujya has committed an offence punishable under Section 325, IPC. Both Sujya and Ramdeva caused simple injuries also on the person of Nanda, therefore, they have also committed an offence punishable under Section 323, IPC, Kishanlal was caused three simple injuries with sharp edged weapon by the appellant Ramjeewan, therefore, Ramjeewan has committed an offence under Section 323, IPC. The appellant Sujya and Ramdeva inflicted three grievous and fourteen simple injuries with lathies on the person of Kishanlal and, therefore, they are also liable under Section 323 and 325 read with Section 34, IPC. As the injuries were caused on the person of Kishanlal and Nanda in furtherance of the common intention of all the appellants, the appellants Sujya and Ramdeva are also guilty under Section 324 read with Section 34, IPC and the appellant Ramjeewan has also committed an offence under Section 325 read with Section 34, IPC. The appellants are also found guilty under Section 447, IPC. They entered into the field, which was in the possession of the complainant party, for grazing their catties with the intention to annoy the complainant party and thereafter remained there for causing injuries to Nanda and Kishanlal. Therefore, the act of the appellants comes, under the definition of criminal trespass.
21. It was also prayed by learned counsel for the appellants that the incident took place in the year 1983. The appellants are on bail since 19-10-1985, Prior to this incident, no offence was committed by any of the appellants. All the three appellants are from same family. Ramjeevan and Ramdeva are sons of Sujya. There was no previous enmity between the complainant party and the appellants, therefore, the appellants be released on probation of good conduct.
22. I have considered the prayer made by learned counsel for the appellants. Having regard to the circumstances of the case including the nature of the offence, character of the offenders and year of the incident, it is expedient to release the appellants on probation of good conduct, instead of sentencing them at once on the following conditions.
23. For the reasons stated above, I have come to the conclusion that the appeal of the appellants deserves to be allowed in part.
24. Consequently, the appeal of the appellants Sujya, Ramdeva and Rakneewan is partly allowed. They are acquitted of the charge under Section 307 and 307 read with Section 34, IPC. Instead, I convict the appellant Ramjeewan under Sections 447, 324, 325/34 and 323/34, IPC, the appellant Sujya under Section 407, 323, 325, 325/34 and 324/34, IPC and the appellant Ramdeva under Sections 447, 325/34, 324/34 and 323, IPC, Instead of sentencing them at once for having committed these offences, it is directed that they be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 on each of them entering into a bond in the sum of Rs. 5,000/- (Rs. five thousand) with one surety in the like amount to appear and receive the sentence as and when called upon during next three years and in the meantime to keep peace and be of good behaviour. It is also ordered that each of the appellants will pay Rs. 2,000/- (Rs. two thousand) as compensation which shall be paid to Nanda and Kishanlal equally under Section 5 of the Probation of Offenders Act, 1958. Three months time is given to the appellants for furnishing personal bond and surety bond and for depositing the amount of compensation.