1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1) [PRECEDENT]. [CASE NUMBER]. (2) [PRECEDENT]. [CASE NUMBER]. (3) [ENTITY] & [PRECEDENT]. [CASE NUMBER]. Against the judgment dated 15.4.2005, passed by Shri [ENTITY], RHJS, Additional Sessions Judge, (Fast Track) No.1, Jodhpur, in [CASE NUMBER]. DATE OF JUDGMENT APRIL 15, [SECTION]0. PRESENT. HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] Mr. [ENTITY] ) Mr. [ENTITY] ) for Appellants. Mr.[ENTITY] ) Mr.[ENTITY], PP, for the State. Mr.[ENTITY]) Mr. [ENTITY] ) for Complainant. BY THE COURT: (PER [ENTITY], J.)
Appellants (i) [ENTITY] s/o. [ENTITY] in [CASE NUMBER], (ii) [ENTITY] s/o. [ENTITY] in [CASE NUMBER] and
(iii) [ENTITY] s/o. [ENTITY] & (iv) [ENTITY] sons of [ENTITY] in [CASE NUMBER], have challenged their conviction and sentence for the offence of (a) S.[SECTION] read with [SECTION] [ACT] - life imprisonment with fine Rs.5,000/-, failing to pay three years imprisonment, (b) S.[SECTION] read with [SECTION] [ACT] - life imprisonment with fine Rs.3,000/-, in default two years,
(c) [SECTION] [ACT] - five years rigorous imprisonment and fine Rs.2,000/-, in default one year, (d) S. [SECTION] [ACT] - one year rigorous imprisonment with fine Rs.500/-, in default one month, (e) S. [SECTION] [ACT] - three years' rigorous imprisonment with fine Rs.1,000/-, in default on year, (f) S.[SECTION] [ACT] - one year simple imprisonment, (g) [SECTION] - one month simple imprisonment,
(h) [SECTION] [ACT] - one month simple imprisonment, recorded and directed vide judgment dated 15.4.05 before the Court of Additional Sessions Judge (Fast Track) No.1, Jodhpur in [CASE NUMBER]. All the substantive sentences are ordered to run concurrently.
Incident and sequence of events allegedly, per prosecution are that on 19.9.02 at about 7.00 p.m. [ENTITY] PW 1, reaching police station, Kherapa, submitted written report Ex.P2 to the then incharge ASI PW 16, informing that on that day in evening at about 6.30 p.m., when he, mother [ENTITY] and sister [ENTITY] were sitting in dhani came in a jeep No.RJ 21 C 4304 [ENTITY] s/o. [ENTITY], [ENTITY] s/o. [ENTITY], [ENTITY] s/o. [ENTITY], [ENTITY] s/lo. [ENTITY], [ENTITY] s/o. [ENTITY], [ENTITY] s/o. [ENTITY], [ENTITY] s/o. [ENTITY], [ENTITY] s/o. [ENTITY], [ENTITY] s/o. [ENTITY] and others, totaling 15 who all Jats of [ENTITY] and others of [ENTITY] - came armed with lathi, [ENTITY], sword, revolver and they entering dhani, did beat them - and while beating by them continued, arrived his sister's husband [ENTITY] so all these persons observing [ENTITY] and to assault him apprehendingly following him tried to detain him and, as [ENTITY] to protect self ran away on motor cycle - these persons following him in jeep, and stopping him inflicted injuries to him - informer PW 1 runningly went and intervening tried to protect but these persons picking up [ENTITY], and to kill him, have taken him in jeep so, and he (PW
1) at P.S. to report. ASI PW 16, making own endorsement and also mentioning (to him) of PW 1, that incident, happened because of land partition dispute between them and elder father [ENTITY] s/o. [ENTITY], registered FIR No.139/02 Ex.P41 for the offences of [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT]. Regarding FIR, PW 16 also mentioned that injured are being got medically examined.
SHO PW/26 commencing investigation per him (i) in morning of September 20th, on receiving information by some informer reached Khadepa Melana road milestone of Khedapa 2 km and finding there near Goshala dead body of [ENTITY] - prepared memos and sketch of the place Ex.P/19 and 22 - collecting samples of spread blood and plain soil was sealed and packets marked as S1, S2 - there in pocket of pant on the person of [ENTITY] was also a live cartridge of 12 bore (ii) place of dead body photographed by PW/15 positives P/44 to 50 and negatives, 44A to 50A, (iii) Examining body, prepared memos P16 and 17, describing injuries which included that of head (iv) directed for postmortem which performed by Medical officer PW/27 proving memo P/17 - shirt pant and underclothes of [ENTITY] taken and sealed preparing memo P/20 packet marked A. SHO PW/16 in course of investigation also inspecting place of beginning of occurrence, the dhani, which also was place where deceased [ENTITY] was beaten and now where kidnapped - and there found (a) toy pistol, (b) a [ENTITY], (c) bamboo peel (chhal) pieces with blood like stains (d) shoe and handkerchief said to be of deceased, (e) broken glass pieces of light of motor cycle taken preparing memo and sketch Ex.P/3 .
PW 26 arresting appellant [ENTITY] on 20.09.02 at 11:35 PM and per his disclosure recorded as P/74 on 22.09.02 and at his instance from his room recovered a Zai preparing memo Ex. P/31 and site plan Ex.P/35 - appellant [ENTITY] was also arrested on 22.09.02 and per his disclosure Ex.P/73 on 22.09.02 from his room recovered a lathi vide memos P/32 and 33-appellant [ENTITY] arrested on 21.09.02 vide memo Ex.P/28 and per his disclosure Ex.P/72 on 23.09.02, a lathi recovered from his house memo Ex.P/30 and site plan Ex.P/31. Motor cycle No. RJ-19 13M 2755 with broken headlight and damaged mudguard etc found near stone quarries on 20.09.02 at 9:15 PM taken vide memo Ex.P/21.
Information regarding registered owner of jeep was obtained from Transport Officer vide letter Ex.P/75 and then notice under [SECTION] of [ACT] given to owner PW/27 who informed that driverwas [ENTITY] who arrested on 21.09.02 vide memo Ex.P/27 and jeep RJ 21 C 4304 taken preparing memo Ex.P/29. Subsequently, [ENTITY] was arrested in July,03 and per his disclosures, place of occurrence are said to have been verified and related memos prepared are Ex.P/55, 71, 56, 77. Appellant [ENTITY] S/o [ENTITY] was arrested on 17.06.03 and [ENTITY] S/o [ENTITY] on 22.10.02 and place of occurrence etc also verified at their instance.
It also appear that prior to above information on 19.9.02 itself, PW 1 purpotedly also presented a written report Ex.P1 at 4.50 p.m., stating that litigation and consequential enmity is between them and [ENTITY], [ENTITY], [ENTITY], all sons of [ENTITY], [ENTITY] s/o. [ENTITY], [ENTITY] s/o. [ENTITY] and [ENTITY] s/o. [ENTITY], so these persons often quarrelled and abuseds and on that day also at about 4 afternoon some persons coming to their (PW 1's) house with lathis, abused and threatened them.
Smt. [ENTITY] PW 2 injured was admitted in hospital on very day for treatment and medical jurist PW 12, examining her and getting her x- rayed, prepared report Ex.P38 - injury report of first informer PW 1 and of his sister PW 3 respectively are Exs. P78 and 77 who were examined by doctor PW 27. Post-mortem on body of [ENTITY] conducted by Board which included medical jurist PW 27 and report prepared is Ex/P79.
After other investigation and delivering packets of collected and recovered articles intact, with forwarding letter, to FSL initially charge- sheet was submitted against four. Then after supplementary charge- sheet against two and then against one. Per charge-sheet proceedings for some continued under [SECTION][ACT]
Appellants and two others [ENTITY], [ENTITY], all charged for the offences of [SECTION], [SECTION] or [SECTION], [SECTION] or [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT], claimed trial. Appellants are held guilty as above while other two are acquitted and one is absconding.
Among the 28 prosecution witnesses examined, PW 1 is first informer, PW 2 is mother of PW 1 and PW 3. PW 3 is also wife of deceased [ENTITY] who all received injuries. PW 10 and PW 11, witnesses of incident, are declared hostile. PW 4, 5, 6, 7, 8, 9 and 24 are motbirs of different proceedings, who all except PWs 4 and 6 are declared hostile. Constables PWs 17 and 18 are motbirs of verification of place of occurrences. Head constable PW 13, constable PW 14, constable PW 21 pertain to safe keeping of and delivering of different packets at FSL. PW 15 is photographer. ASI PW 16 registered FIR and SHO PW 26 did most of the investigation and Sub-Inspector PW 20, ASI PW 23 and after posted SHO PW 25 also investigated at different stages. [ENTITY] PW 28 is jeep owner. PWs 12, 22 and 27 are medical officers, whereas before Judicial Magistrate [ENTITY] PW 19 was conducted identification parade for accused [ENTITY] s/o. Shri [ENTITY], who proves memos of identification Exs. P13 and 14.
Appellant [ENTITY] expressing of his false implication, asserted that on that whole day, he was on job as supervisor in Hari Industries belonging to [ENTITY] DW 6, from where he was arrested on 20.9.02 - also explains that complainants intending to grab land of his share, tried for forceful possession and this false case.
Appellant [ENTITY] explains that he with family since seven years living at [ENTITY] in rented house of [ENTITY] and employed at shop of [ENTITY] - on that day, was at [ENTITY] who picked from Tonk on 11.6.03 where he was for sale of business material and he falsely implicated for grabbing land.
Per appellant [ENTITY], he falsely implicated because he 107 [ACT] proceedings cited as a witness for opposite party.
[ENTITY] explains that PWs 1, 2, 3 and [ENTITY] did quarrel and beat him so he went to report at 12.30 noon that day to police station, but constable [ENTITY], a relative of deceased, detaining him falsely implicated him. Also explains that dispute for partition of land was and complainant intended to grab his land.
Among nine defence witnesses, DW 1 is in relation to acquitted accused [ENTITY]-DW 2 and DW 3 [ENTITY] living at [ENTITY]. Dws 4, 5, 6 and owner of the factory DW 7 tell of appellant [ENTITY] working at factory on 19.9.02 and taken from thereby place on 20.9.02.
Defence witness [ENTITY] DW 8-husband of PW 2 and father of PWs 1 and 3, say of living separate to wife since 25 years and that after a fortnight of marriage he was handicapped as a result of accident with a tractor. [ENTITY] DW 9 do also depose in this regard.
Learned Judge, while acquitting two, arriving conclusions for guilt of appellants, convicted and sentenced them as above.
Learned counsel for the appellants extensively describing [ENTITY]ments of witnesses argued that on fact, the case is not proved and at least reasonably substantial doubt regarding truthfulness created. For [ENTITY] argued is that for him specifically [ENTITY]d is of having [ENTITY], but no injury to any of any sharp object is and witness admit of not truly narrating in course of investigation. Regarding sword and [ENTITY], emphatically argued for appellant [ENTITY] s/o. [ENTITY] that he on 19.9.02 hold a working at a factory in Jodhpur which firmly established by defence witness which include owner of the factory DW 7. Similarly, for [ENTITY], urged that he happen to be at [ENTITY]. On behalf of the appellant, thrustly submitted that no dhani of theirs was and they not were in possession.
Learned Public Prosecutor contends that provenly [ENTITY] forcibly picked up and taken from there by persons, including appellant and, thereafter, [ENTITY] found dead next morning.
Hearing arguments of the learned counsel for the appellant and learned Public Prosecutor, we have carefully gone through the record, evidence produced, documents, judgment assailed and also memo of appeal.
Having a look at the deposition of medical jurist doctor PW 27, is proved that post-mortem on the body of [ENTITY] s/o. [ENTITY], 45 years, conducted at 2.35 p.m. on 20.9.02 who had sustained following injuries (A) Abrasions (i) 2 x 2 right forehead, (ii) 3 x 0.5 left temporal,
(iii) 6 x 25 cm right cheek, (iv) 2 x cm on chin, (v) 5 x cm on left chin, (vi) 2 x 1 cm on left cheek, (vii) 8 x 4 cm on right shoulder and right chest middle, (viii) 2 x 0.5 cm right knee, 5 x 1 cm on right knee, 5x2 cm on left leg, 7 x 3 cm on left knee, 16 x 11 cm below chest - above abdomen, 2 x 0.5 cm on left thigh, 22 x 7 cm on right back and 12 x 2 cm above right buttock. (B) Bruises (i) 6 x 2 cm on left thigh,(ii) 12 x 2 cm on left shoulder,(iii) 10 x 2 cm on lower left back, (iv) 9 x 2 cm on left back,
(v) 12 x 2 cm and 10 x 2 cm on left buttock, 5 x 1.5 cm on left thigh, 3 x 2 cm on left thigh middle, 12 x 2 cm right upper buttock.(C)Haematoma on right left and mid parietal region and sub-dural, haematoma left pareital to temporal area, (D) Fractures of 3rd, 4th and 5th right ribs with one torn and with 600 cc of blood, and fracture of left elbow. (E) Lacerated wound with bruises and abrasion 2 x 1 left upper arm.
All injuries were ante-mortem and death due to head and lung injuries which sufficient in normal course of nature to cause death. Postmortem report Ex.P79 bears signatures of three members constituting board and death within past 24 hours, that is after afternoon of 19.9.02.
Cumulatively taken with other evidence is proved that [ENTITY] died after about 5 p.m. of 19.9.02 and prior to early of 20.9.02.
Considering deposition of doctor PW 27, is proved that on 21.9.02 noon, following were the injuries to Smt.[ENTITY] PW 3 (A) Bruises (i) 13 x 7 cm overlapping on thigh outer side with swelling, 4 x 2 cm left lower outer side of thigh, 3 x 3 cm on left knee, 6 x 3 cm on left leg, 7 x 3 cm and 3 x 3 cm on left arm,8 x 5 cm on outer of right thigh and of 11 x 6 cm at back,1.5 x 1 and 1 x 1 cm on right leg. (B) Bruise 0.5 x 0.5 cm on left knee.
Injury report Ex.P30 and injuries simple of blunt of 1 to 2 days duration.
[ENTITY] PW 1 examined by medical jurist PW 27 at 12.30 noon of 21.9.02 and on his person, were (i) Abrasions 3.5 x 4 cm on lower left arm and of 8 cm on left posterior of left arm;(ii) Abrasions near each other respectively of 5, 4 and 3 cm left arm front; (iii) Abrasion 1 x 05 left ankle and of 5 & 3 cms crossing each other on lower part of chest - all of blunt object of between 1 and 2 days duration and report Ex.P78.
Dr. [ENTITY] PW 12 medical jurist, hospital Jodhpur, depose that Smt. [ENTITY] PW 2, admitted in orthopedic ward on 20.9.02 was examined by him on 25.9.02 and found following injuries :-
(i) Stitched lacerated wound of 2 x 2 cms forehead;(ii) Plaster on left leg from toe to upper knee; (iii) Abrasion 5 x 1 cm left scapula, 5 x 2 cm left back, 6 x 2 cm right chest, 5.8 x 3 cm mid of back.(iv) Bruises 5 x 1 cm left scapula.
Her chest and left knee were x-rayed before doctor Radiologist PW 22, (plates Ex.P66 to 70) and found were (i) Fractures of 8th, 9th and 10th ribs; (ii) Fractures of left tibia upper 1/4th - all of blunt object. Injury report Ex.P38, x-ray report Ex.P39 and x-rays 66 to 70.
Prior to appreciation and evaluation of evidence for the incident, appropriate is to mention that some dispute regarding partition and possession of agriculture land existed prior to incident. PW 2 is wife, whereas PW 1 and PW 3 among four issues of [ENTITY] DW 8.
[ENTITY] PW 1, 21 years and first informer, accepts that he, brother, sister and mother filed a civil revenue suit Ex.P4 against father and brothers of father and Ex.D2 is copy of written [ENTITY]ment filed by [ENTITY] and others. PW 1 categorically admits that father did attempt to relinquish and release his share of agriculture land in 2002, executing a registered deed. Filing of revenue suit Ex.P4, written [ENTITY]ment Ex.D2 and also proceeding before Family Court Ex.D3 are admitted one. Going through Ex.P5 and D2, appears that [ENTITY], [ENTITY], [ENTITY] and one Shri [ENTITY] real brothers are sons of Shri [ENTITY]. Ex.P4 was filed on May 1, 02, claiming 5/24 of the total and out of 1/4th share of [ENTITY] of the 152.03 bigha of land situated in village [ENTITY]. Thus, complainants claimed share, partition and possession of 5/6th of belonging to [ENTITY]. In written [ENTITY]ment Ex.D2, [ENTITY] and others mentioned that [ENTITY] executed relinquishment and release deed and got it registered on 5.1.02 and total land in possession of [ENTITY] and brothers. Ex.D3 is copy of application under [SECTION] [ACT] filed on 29.5.02 by Smt. [ENTITY], claiming maintenance of her and a 16 years son from [ENTITY] and in paras 4 and 6, specifically averred and PW 2 categorically admits that since 1992 [ENTITY] abandoning and deserting family, is living with his brothers.
As shall be observed that sufficient probabilities (as far as, and limitedly concerned for this case) exists that perhaps [ENTITY] living separately for last 20 - 25 years. Stands firmly established that since 1992 at least [ENTITY] not living with complainant and further established is serious dispute regarding possession, partition of agriculture land and proceedings under [SECTION] [ACT] also initiated in April, 02, copies of which are Exs. P7, 8, 9 and 10. It is to be noted that three appellants are sons of [ENTITY] - among the ten persons named in FIR Ex.P2, four are sons of [ENTITY] and one [ENTITY], both brothers of [ENTITY] and cause of the incident was land dispute - ancestral one. PWs 1, 2 and 3, all very straightly admit that [ENTITY] is handicapped. [ENTITY] PW 1, then 20 years, says that he last saw parents living together 12-13 years ago and father living with his brothers for 10-15 years, father handicapped prior to his remembrances and PW 1 strangely [ENTITY]s ignorance of which leg father is handicapped, as such safely can be inferred that [ENTITY] handicapped, did not live with complainant for 15 years. For [ENTITY] being handicapped since long, is also unambiguous admission by PWs 2 and 3.
[ENTITY] DW 3 in written [ENTITY]ment Ex.D2 in May, 02, asserting of living separate to PW 2 since last 30 years and soon after marriage, vehemently questions also about children. [ENTITY] DW 8 himself deposes that he now 55 years, was married when 20 years and wife lived with him for 15 days and then after never since 25 years - DW 8 further says that he handicapped, as a result of striking by a tractor and questions about children.
A close perusal of the evidence also discloses that per PWs 1, 2 and 3, maternals of PW 1 also live in village [ENTITY] and dhani of maternal uncle [ENTITY] is at a distance of about half km from dhani of complainant but no where appears any description of residential house of PWs 1 & 2 in the village.
As such established is that [ENTITY] was not living with wife and children since 15 years and perhaps since 20-25 years. With above also is fact that PWs 2 and 1 do say that for 10-11 years, they resided at Jodhpur and prior to it, for 2-3 years, at Gotan, all these may be relevant to determine genesis of the incident. For the dhani where and from where incident began, PW 2 says that they built a room like only a month ago by stone slabs and inserting slabs in earth. From the evidence of PWs 1 and 3, also appears that dhani or substantial change made only a month or two ago. Here, it is worth to take note that memo of site inspection Ex.P3 prepared by SHO before PW 1 and as is deposed and admitted by them fields around the dhani are described to be those in possession of [ENTITY] etc. and for the field of dhani itself also is mentioned that now in possession of complainant and earlier was possession of [ENTITY] s/o. [ENTITY].
Appellants [ENTITY] s/o. [ENTITY] and also [ENTITY] s/o. [ENTITY] have pleaded alibi. Appellant [ENTITY] claims to be at [ENTITY]. Principles for proving and effect of alibi are well settled and also are elaborated in Hon'ble Apex judgment in (i) [PRECEDENT], [PRECEDENT];, (ii) [PRECEDENT] [PRECEDENT]; (iii) [PRECEDENT], [PRECEDENT]; and (iv) (2005) 12 SCC 267, [PRECEDENT] The alibi is to be established by the person claiming it - alibi, if proved, may also a little adversely affect prosecution (in relation to other accused, if any, and depending upon various other factors, facts and circumstances of that case) and incident - alibi specifically pleaded and found untrue, still onus on prosecution to prove its case remains intact and only the other defence if specifically taken by the accused is perhaps to be examined carefully. Therefore, in this particular case, failure to establish alibi pleaded does not adversely affect any appellant.
Considering alibi, [ENTITY] S/o [ENTITY] claims to be at [ENTITY]. His landlord at [ENTITY] DW/2 say of he living with family in his house since last 7-8 years and employed at the shop of the trader who also keep buffalo and sell milk in morning and evening. DW/2 further say that on 19.09.02 [ENTITY] was very much there and police personnel inquiring about him on 19.09.02 also some days after who told by him (DW 2) of [ENTITY] being there on 19.09.02. [ENTITY] DW/3 say of [ENTITY] working at his shop since 2002 duty hours being 9 morning to 7.30 evening who also used to go out in relation to business and sell milk in morning and evening. DW/2 also say that either on June 9th, 10th or 15th, policemen inquired about [ENTITY] who was out to Tonk since June 10th where sent for business work. The testimony of these witnesses is not worth of establishing presence of appellant at [ENTITY].
Appellant [ENTITY] S/o [ENTITY] asserts of being at Jodhpur and working at factory Hari Industries owned by [ENTITY] DW/7 who [ENTITY] that [ENTITY] and other five were employed in his factory who used to come at 9 and work till 7.30 evening and that he himself remains at factory during day. Per DW/7 appellant [ENTITY] was employed since last 10-11 months and very much at factory on 19.11.02 from morning to evening and when he (DW/7) came to factory at 9 AM on 20.09.02 [ENTITY] was not and other employees told of coming of police personels so the witness inquired on phone from [ENTITY] and informed of [ENTITY] having been called in regard to some quarrel of 19.09.02 in village.
[ENTITY] DW/4 and [ENTITY] DW/6 [ENTITY] of them and [ENTITY] being employed in this factory and working hours 9 am to 8 pm so and during the entire time on 19.9.02, they and [ENTITY] were working there and then on 20.09.02, [ENTITY] did not report and owner DW/7 told them of [ENTITY] being taken by police. DW/6 say that 9-10 AM of 20.09.02 also came police personnels.
DW/4,6,7 also depose of daily brining of lunch for [ENTITY] by his brother in law [ENTITY] and [ENTITY] DW/5 say that he living with [ENTITY] used to deliver lunch for [ENTITY] who on 19.09.02 was very much in factory and in night at house and on 20.09.02 when he (DW 5) went to factory, [ENTITY] was not available - co-labourer and owner told of having been picked up by police.
Per attendance register Ex.D6/A [ENTITY] was at job entire month upto 19th and total are five workers. The evidence is not tending of reasonably definite inference of [ENTITY] being there from afternoon of 19.09.02 to late evening. Factory is at Jodhpur and not appear that place of occurrence and area around P.S. Khedapa from Jodhpur is at such a distance to rule out possibility of arrival in a hour or two.
[ENTITY] and [ENTITY] pleading alibi both are sons of [ENTITY] who is uncle of PW/1 & 3 and husband's brother of PW 2 as such both are well known to PW/1,2,3 and their presence at the scene of occurrence is [ENTITY]d by these witnesses in categorical terms. Therefore, not is established that [ENTITY] was at [ENTITY] and/or [ENTITY] was at Jodhpur as they explained.
The entire incident consists of three parts, first is coming of several persons allegedly including some appellants and threatening to PW/1,2 & 3 for which report Ex.P/1 given at P.S. at about 4:50 PM and registered under [SECTION] [ACT] Second part of coming of about 15-persons of which 11 are named in FIR Ex.P/2, - at the dhani and beating PW/1,2 3 during which [ENTITY] arriving there apprehended by assailants who getting hold and picking him carried in jeep. Per [ENTITY] PW/1 and FIR he intervening tried to protect [ENTITY] who forcibly taken and PW/1 proceeded on motor cycle-of his maternal uncle-to police station and lodged written report Ex.P/2 at 7.00 P.M. Third part is that of after taking finding only of dead body of [ENTITY] in morning.
Regarding incident material is evidence of PW/1,2,3 and investigating officer PW/26. All these witnesses are cross-examined at quite a length recorded in many pages. Going through the evidence of all these surfaces, per them, that in late afternoon at about 6.30 came [ENTITY], [ENTITY], [ENTITY], [ENTITY] and 5-6 (named) in a jeep armed with lathis and other sharp weapons and also a pistol (which subsequently turned out to be a toy and not real and only of that appearance).
In FIR 10-11 persons are named and rest out of total 15-are described to be from [ENTITY]. PW/2 specifically say of so mentioning (of [ENTITY]) because [ENTITY] lives there ([ENTITY]). As such and for some other doubts as will be observed, safely can be inferred probabilities of First Information Report being little exaggerated but irrespective of this, it is worthwhile to mention that established is kidnapping of [ENTITY] and that he found dead next morning.
None of the injured seems to have sustained injury of sharp object and the witnesses very clearly say that they wrongly mentioned in FIR and in their [ENTITY]ment in course of investigation of some having sword. Also mentioned inflicting of injury by [ENTITY] and witness also say of causing injury of reverse [ENTITY] meaning thereby from blunt side. Investigating Officer PW/26 depose that on 20th September, he specifically asked PW/1, 2,3 for getting their [ENTITY]ments recorded but PW/2 and 3 telling of not being in sound [ENTITY] so to [ENTITY]ments afterwards. PW/2 admits that her [ENTITY]ment recorded after 4-5 days. Statement Ex.D/4 of PW/2 bears 24th September whereas, of Smt. [ENTITY] PW/3 Ex.D/5 bears date October 2nd.
PW/1 [ENTITY]s that when injuries to him, PW/2 & 3 were being inflicted, was by assailants was arriving [ENTITY] and when he (deceased) as turningly tried to run away chased by these persons who taking on [ENTITY], at a distance of about 15-20 steps or so,did begun beating him and he ( PW/1) tried to intervene but could not and [ENTITY] taken away forcibly in a jeep, therefore, PW/1 rushed to P.S and lodged written report Ex.P/2. Ex.P/2 also mentions of forcibly taking [ENTITY]. Injuries of PW/1 [ENTITY] described above are few abrasions whereas, he also asserts that [ENTITY] having [ENTITY] inflicted injury of same at his left wrist.
As is observed dhani too was built only a month or two earlier by roping slabs - in memos of site inspection specifically is mentioned and as also is deposed by I.O. and witnesses confronted to it that now that portion is in possession of complainant and the field is that about which possession is disputed. Also is the fact that for 10-11 years at least, PW/1 and mother remained at Jodhpur and prior to that 2-3 years at Gotan. All these are quite relevant to determine genesis, and main cause of the incident.
For above and some other inconsistencies appearing in evidence, the evidence of PW/1, 2, 3 is required to be examined and evaluated very minutely and cautiously.
Memo Ex.P 19 is of place where, [ENTITY] found dead and PW/12 mentions of that place being at a distance of 13 km from police station. Memo of place where occurrence began Ex.P/3 mentions of distance being 12 km from P.S. Investigating Officer PW/26 say that distance between dhani of complainant and place where body found is 7 km and distance from P.S. of the place body found is less than to dhani. Therefore, it also appears that dead body of [ENTITY] found at a distance of 7 km from the place he forcibly taken away. At on around dhani where PW1, PW2 and PW 3 were beaten not said is of blood but on pieces of chhal found there blood was.
Appellants are [ENTITY] S/o [ENTITY], [ENTITY] S/o [ENTITY], [ENTITY], [ENTITY].
PW/1 says that in afternoon came [ENTITY], [ENTITY] (two), [ENTITY] and some others who abusingly threatened them and as he came after lodging of report of that incident soon after when they were sitting in Dhani came [ENTITY] ([ENTITY]), [ENTITY], [ENTITY], [ENTITY] and 4-5 others (named) - categorically says that [ENTITY] s/o [ENTITY] not among the persons who came in afternoon (for threatening) and that these persons chasing and detaining [ENTITY] taken him in jeep RJ 21 C 4304 and that [ENTITY] possessed [ENTITY]. PW/1 also say that for lodging report of afternoon incident he went on motorcycle of maternal uncle from where he came alone as [ENTITY] told of coming little after - that in course of incident he could not reach near enough to take care of [ENTITY] and as he saw [ENTITY] forcibly taken in jeep he headed for P.S. without informing maternal uncle who resides at about distance of km.
PW/1 says appellant [ENTITY] S/o [ENTITY] is residing in Bhopalgarh who happen to be brother-in-law of other appellant [ENTITY] and the witnesses un-ambiguously admit of not having any dispute or indifference with [ENTITY] prior to this incident. As is observed some (who not named) are described as belonging to [ENTITY] and which is on assumptions like [ENTITY] living at [ENTITY]-do tend to show some possibility of some outsider too not very truly identified and is named as involved . At least create is doubtfor [ENTITY]. Smt. [ENTITY] PW/2 say that when and as for protecting [ENTITY] arrived near PW/1 near he (PW 1) was also beaten ( not so said by PW/1) and that during day came [ENTITY], [ENTITY], [ENTITY] (two) and some other who after threatening them went away and then in evening when after return of [ENTITY] they were sitting at home, [ENTITY], [ENTITY], [ENTITY], [ENTITY] and others having lathis entering dhani did beat them and then [ENTITY] came and who also tried to run away on motorcycle. PW/2 stating of taking of [ENTITY] say that all the accused did beat him and she first taken to Khedapa hospital and then Jodhpur hospital where treated hospital. PW/2 [ENTITY]s that she does not know if the assailants belong to [ENTITY] or [ENTITY] and that as [ENTITY] resided at [ENTITY], so they assumed them of being of [ENTITY] and that [ENTITY] was beaten at a distance of 10-15 paces from dhani. Smt. [ENTITY] PW/3 [ENTITY] that she, husband and two little children came on motorcycle to see mother and brother on that very day and as PW/1 told of threat given by these persons so her husband and PW/1 went to police station and brother came back who on asking said of [ENTITY] coming after a little.
[ENTITY] s/o. [ENTITY] definitely was not among the persons threatening complainants about 2-3 hours earlier to main incident. For above reasons, presence of appellant [ENTITY] s/o. [ENTITY] at the place of occurrence becomes reasonable doubtful, so he is to be given benefit of doubt.
For the reasons above and on reasonable basis, probability of incident being created (in relation to person and number) cannot be ruled out. For this reason, appellant [ENTITY] s/o. [ENTITY] gets benefit of doubt. Complainants perhaps not in possession for more than a month and at least perhaps not in settled possession and admittedly, [ENTITY] who at least for 15 years, was not living with wife and children and living with brothers only few months ago did relinquish/release his share in agriculture field in favour of his brothers. These situations may have some bearings for the incident which occurred at the dhani, i.e. where injuries to PWs 1, 2 and 3 inflicted. Despite all this, the fact that the deceased forcibly taken away from there who only found next morning dead at the distance of 5-7 km, clinchingly concludes aspects against persons who provenly involved in forcibly picking and taking away [ENTITY].
For the persons who provenly were among the persons forcefully taking away deceased, are the persons deceased last seen alive with.
Prosecution has provenly established that appellants [ENTITY], [ENTITY] and [ENTITY] were among the persons who forcibly picking up [ENTITY], took away him in a jeep and [ENTITY] was found dead next morning and died as a result of injuries inflicted to him. As [ENTITY] taken forcibly and after inflicting injuries to PWs 2, 3 and also 1 and [ENTITY] found dead next morning as a result of injuries inflicted to him, so the persons taking [ENTITY] forcibly away are to be convicted for the offence of [SECTION] [ACT]. This being so, then significance of in what circumstances and situation, injuries to PW 2 and/or PW 3 inflicted is reduced, because those inflictors are also the persons who forcibly took away [ENTITY] who was found only dead. However, as above, stands proved that [ENTITY], [ENTITY] and [ENTITY] did also inflicted injuries to PWs 1, 2 and 3 and conviction for this on all three persons suffers no infirmity.
Appellants [ENTITY], [ENTITY] and [ENTITY] are also convicted for attempting murder of PW 2. As above, injuries sustained are fracture of ribs and tibia. Also is proved that the persons who inflicted injuries when observed deceased [ENTITY] arriving there, leaving PW 2, chased [ENTITY]. Had there been intention to cause death of Smt. [ENTITY], no contingency arose for all assailants, said to be 11 to go away. Therefore, in the opinion of the Court, in relation to causing injuries to Smt. [ENTITY], conviction ought to be for the offence of [SECTION] and not [SECTION] [ACT].
For the reasons above, conviction of the appellants [ENTITY], [ENTITY] and [ENTITY] for constituting unlawful assembly inflicting grievous injuries to Smt. [ENTITY] PW 2 and simple injuries to PWs 1 and 3 and abducting [ENTITY] and killing him, is to be affirmed. This act of these persons constitute offence punishable under [SECTION], [SECTION] read with [SECTION], [SECTION], [SECTION] read with [SECTION] and [SECTION] [ACT]. As persons five or more are proved to be involved, so appellants are guilty read with [SECTION] and in any eventuality, provisions of [SECTION] are at place.
Appellant [ENTITY] s/o. [ENTITY] is to be acquitted, giving him benefit of doubt and other appellants (convicted as above) for the offence of [SECTION] and [SECTION] [ACT] are to be acquitted.
For the convictions affirmed as above, the sentence awarded by learned Sessions Judge is also to be affirmed, but reducing the fine imposed.
Accordingly, all three appeals are decided as under :-
(A) Appellant [ENTITY] s/o. [ENTITY] is acquitted of the offences he charged-his conviction and sentences awarded are set aside.
(B) Convictions of appellants (i) [ENTITY] s/o. [ENTITY], (ii) [ENTITY], and (iii) [ENTITY], sons of [ENTITY] for the offences of [SECTION], [SECTION], [SECTION], [SECTION] are affirmed and they also are convicted (instead of S.[SECTION] read with [SECTION]) for the offence of [SECTION] read with [SECTION] [ACT] and each is sentenced (a) for [SECTION] read with [SECTION] [ACT] - life imprisonment with fine Rs.1,000/-, in default two months' rigorous imprisonment, (b) for [SECTION] [ACT] - five years' rigorous imprisonment with fine Rs.100/-, in default ten days rigorous imprisonment, (c) for [SECTION] read with [SECTION] [ACT]
- two years rigorous imprisonment with fine Rs.100/-, in default ten days rigorous imprisonment, (d) for [SECTION] [ACT] - one year's simple imprisonment, (e) for [SECTION] [ACT] - one month's simple imprisonment.
All substantive sentences of imprisonment to run concurrently. (C) Convicting appellants [ENTITY], [ENTITY] and [ENTITY] as above they are acquitted of [SECTION], [SECTION] and [SECTION] [ACT] Appeals decided accordingly.
([ENTITY]), J.) ([ENTITY]), J.