1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT [PRECEDENT] [CASE NUMBER] Date of Judgment : 15-12-2008 PRESENT HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] Mr.[ENTITY] for Mr.[ENTITY], for the appellants Mr. [ENTITY], P.P., for the respondent. BY THE COURT (PER HON'BLE [ENTITY],J.):
Accused-appellants have filed this appeal against the judgment dt. 20.09.2003, passed by Additional Sessions Judge No.2, Sri [ENTITY] in sessions case No.06/2002, by which he convicted accused-appellants under [SECTION], [SECTION], [SECTION] [ACT] and sentenced to undergo life imprisonment and fine of Rs.1000/- under [SECTION] [ACT] and in default of payment of fine, to further undergo two months' rigorous imprisonment, and under [SECTION] and [SECTION] [ACT] each, sentenced to undergo two months' simple imprisonment and fine of Rs.200/-, in default of payment of fine to further undergo 10 days' simple imprisonment and further ordered that substantive sentences shall run concurrently.
Brief facts of the prosecution case are, that PW.1 [ENTITY] made "[ENTITY]" Ex.P/1 on 15.1.2002 at 11.30 PM and alleged, that accused [ENTITY] is his brother-in-law (His wife's brother) with whom, he has strained relations and litigation. Last year, his son deceased [ENTITY] had litigation with accused [ENTITY]. Today, he along with his son [ENTITY], nephew [ENTITY] and one other person [ENTITY] came to Suratgarh Court in connection with bail of [ENTITY] in some other case and left that place at 4.00 PM by bus for their village at 5.00 PM. All of them got down at Raj Canal bus stand, he remained there, whereas other three persons left for complainant's [ENTITY] on foot. At 6.30 PM, complainant reached to [ENTITY] and found that [ENTITY], [ENTITY] and [ENTITY] had left his [ENTITY] for [ENTITY]'s [ENTITY] on a tractor. At 8-8.15 PM, his nephew [ENTITY] s/o [ENTITY] came on tractor and narrated that at 7-7.30 PM, aforesaid three persons came to his house and dropped [ENTITY] and after dropping [ENTITY], [ENTITY] and [ENTITY] were returning back and reached in front of house of accused [ENTITY], they were restrained by all the accused persons, [ENTITY] ran away and accused-appellant inflicted blows with [ENTITY] and [ENTITY] on the body of [ENTITY], on his cries, [ENTITY], [ENTITY] and ladies of their families came on the spot, then accused- persons dragged [ENTITY] inside their home and closed the door. On this information, complainant [ENTITY] and [ENTITY] came to the police station in a jeep, then they were accompanied by police and police personnels got the door of accused [ENTITY] opened and saw, that [ENTITY] was lying in blood with many injuries on head, hands and legs in "Bakhal". There was one lady in the house. They took [ENTITY] with them and at that time, [ENTITY] was whispering and on the way to Suratgarh, [ENTITY] died. On this "[ENTITY]", case under [SECTION], [SECTION], [SECTION] [ACT] was registered and after investigation, challan was filed under these sections. After committal, Additional Sessions Judge framed charge under [SECTION], [SECTION] and [SECTION] [ACT] in the alternate [SECTION] [ACT] against accused-appellants. Prosecution examined 16 witnesses, whereas defence examined one witness. After hearing arguments, appellants were convicted and sentenced as mentioned above.
Heard learned counsel for the parties and perused record.
Learned counsel for the appellants vehemently argued, that only interested witnesses have supported the prosecution case and independents witnesses have not been examined and there were no blood stains on recovered "[ENTITY]" and on account of enmity, appellants have been falsely implicated, whereas defence witness has clearly proved, that the deceased got injuries as if he fell down in diggi and thus, the trial court has committed error in convicting the accused- appellants. It was further argued, that post mortem report reveals that no grievous injuries were found on the head of the deceased and most of the injuries were simple in nature, and in such circumstances, at the most, accused-appellants could have been convicted under [SECTION] [ACT], so the appeal may be accepted and the appellants may be acquitted of the aforesaid offences or be convicted under [SECTION] [ACT].
On the contrary, learned Public Prosecutor submitted, that the prosecution has proved beyond
reasonable doubt, that appellants inflicted injuries on the body of deceased with [ENTITY], [ENTITY] and [ENTITY] and these blood stained articles were recovered at the instance of accused- persons and there are only minor contradictions in the evidence of eye-witnesses, which is bound to occur in natural course and thus, the trial court has not committed any error in convicting the appellants, hence, the appeal may be dismissed.
PW.1 [ENTITY] has stated in his statement, that he had enmity with accused-persons and on account of this enmity, accused-persons inflicted injuries on the body of his deceased son. [ENTITY] Ex.P/1 also contains fact of strained relation and litigation between the complainant, deceased and accused-persons. The accused-persons have stated in their statements under [SECTION] [ACT], that on account of enmity, witnesses have falsely implicated them. Thus, it becomes clear, that complainant, his son deceased [ENTITY] and accused-appellants, who are related to each other had enmity and there is litigation between them and in such circumstances, it appears that on account of this enmity, accused-persons inflicted injuries on the body of the deceased, which resulted in his death. No doubt, enmity is double edged sword but after going through the entire evidence, it cannot be concluded that on account of enmity, accused-persons have been implicated falsely.
Accused persons have stated in their statements under [SECTION] [ACT] that [ENTITY] fell in diggi in drunken condition with tractor and received injuries and further stated that [ENTITY] intimated this fact to [ENTITY].
DW.1 [ENTITY] has stated in her statement, that at 7.30 PM, she was at her home and accused [ENTITY] and [ENTITY] had gone to field, whereas accused [ENTITY] had gone to meet his daughters, her maternal grandson aged 12 years was at her home, she heard cries and saw, that many persons assembled and further saw, that [ENTITY] fell in diggi with tractor and got injuries. [ENTITY], at that time, was under heavy intoxication. On request of neighbours, she took him out from diggi and took him to her house. Then she informed this fact to [ENTITY]. She admitted in her cross- examination, that [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] etc. were present on the spot, but no one helped her in taking out [ENTITY] from diggi. She informed [ENTITY] on telephone. She stated that there are about 400 houses, private doctors and Panch Sarpanch in the village, but she neither asked anyone to report the matter to police station, nor contacted Doctor, though [ENTITY] remained in her house for about three hours.
Statement of DW.1 [ENTITY] cannot be believed as according to her, [ENTITY] was in heavy intoxication at the time of receiving injuries. Post mortem report Ex.P/16, which has been proved by PW.7 Dr. [ENTITY], does not indicate, that deceased was under
intoxication at the time of post mortem. DW.1 [ENTITY] further stated, that deceased fell in diggi along with tractor, whereas site plan Ex.P/6 does not, reveal that the tractor fell in diggi. PW.5 [ENTITY], who was in tractor along with deceased, has also stated, that when deceased took tractor in reverse, then it entangled in diggi. PW.16 [ENTITY], Investigating Officer, who prepared site plan, has stated in his cross-examination, that left front and rear wheels of tractor were in diggi, while right front and rear wheels were on land and diggi was of 5x6 ft. depth. Other prosecution witnesses have denied in their cross-examination, that deceased along with tractor fell in diggi in drunken state and received injuries. Thus, it cannot be believed that deceased sustained injuries on account of falling in drunken state in diggi along with tractor. DW.1 [ENTITY] has further admitted in her cross-examination, that [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] etc. were on the spot, but none of them has been examined by the defence to prove their story. She further stated, that she asked other bystanders to help her in taking out [ENTITY] from diggi, but no one helped her and she alone took him out from diggi, which cannot be believed because had [ENTITY] fallen in diggi along with tractor, DW.1 [ENTITY] alone could not have been in a position to take [ENTITY] out from diggi, who was 35 years old at that time. Thus, it cannot be believed that deceased [ENTITY] fell in diggi along with tractor in drunken state and sustained injuries and ultimately succumbed to death and hence, it cannot be believed, that on account of enmity, accused-appellants have falsely been implicated by the complainant.
Prosecution has examined PW.3 [ENTITY], PW.4 [ENTITY], PW.5 [ENTITY] and PW.6 [ENTITY] as eye-witnesses, and all the witnesses have stated, that when [ENTITY] along with deceased [ENTITY] was returning in tractor after dropping [ENTITY] at his residence and they reached in front of house of accused [ENTITY], all the accused restrained them from proceeding further by putting his tractor trolley in front of tractor. When [ENTITY] took his tractor in reverse, the tractor entangled in diggi and all the accused-appellants came there. Accused [ENTITY] was armed with lathi, accused [ENTITY] was armed with [ENTITY] and accused [ENTITY] was armed with [ENTITY] and all of them inflicted injuries with these arms on the body of [ENTITY] and then dragged [ENTITY] to their house. There is no contradiction on this point in their statements and there are only minor contradictions in their statements, which are bound to occur in the evidence of natural witnesses as statements were recorded after about a year. PW.7 Dr.[ENTITY], who conducted the post mortem of deceased [ENTITY], has stated that he found 18 injuries on the body of deceased [ENTITY] and all the injuries were ante mortem in nature and sufficient in the ordinary course of nature to cause death and further opined, that death was caused on account of haemontogic swell resulting from multiple injuries and post mortem report Ex.P/16 bears his signature. He has admitted this fact, that death was not caused on account of any single injury and on account of injuries No.1 and 2 on frontal region and occipital region, no damage was caused to brain matter and membrane as well. There was no fracture on account of these injuries. Thus, it is clear, that on account of injuries caused by accused-appellants, deceased [ENTITY] succumbed to death.
Learned counsel for the appellants further argued, that as per the statements of witnesses, occurrence took place at 7-7.30 PM and in the month of January, it has to be dark in absence of sunlight and in such darkness, witnesses could not have identified accused-persons. No doubt, the witnesses have stated in their cross-examination, that at the time of occurrence, it was not dark but this fact cannot be believed because on the day of occurrence i. e. 15.1.2002 at 7-7.30 PM, it is bound to be dark as sun sets at 6.00 PM, but there can be sufficient light if the moon is in the sky. Not only this, when the deceased was reversing his tractor, then certainly in the headlight of tractor, it was not difficult for the witnesses to identify the accused-appellants, who were in relation to the witnesses as well inhabitants of same village.
PW.16 [ENTITY] has stated, that he arrested accused [ENTITY] vide arrest memo Ex.P/39 and [ENTITY] gave information Ex.P/40 under [SECTION] of the [ACT] and in pursuance to the information and at the instance of accused [ENTITY], blood stained lathi was recovered vide Ex.P/30. He further stated that he arrested [ENTITY] vide arrest memo Ex.P/41 and during investigation, accused [ENTITY] gave information Ex.P /42 under [SECTION] of the [ACT] and on the information and at the instance of accused [ENTITY], blood stained [ENTITY] was recovered vide memo Ex.P/32. He further stated that he arrested accused [ENTITY] vide arrest memo Ex.P/43 and during investigation, accused [ENTITY] gave information Ex.P/44 under [SECTION] of the [ACT] and on the information and at the instance of accused [ENTITY] "Jafa" ([ENTITY]) was recovered vide Ex.P/45. No doubt, memo Ex.P/45 reveals that no blood stains were found on the "[ENTITY]", but FSL Report Ex.P/51, which has been proved by PW.16 [ENTITY], reveals that blood stains of human origin were found on [ENTITY], [ENTITY] and Jafa ([ENTITY]), though the blood groups could not be ascertained. Thus, it becomes clear, that all the weapons, recovered on the information and at the instance of accused-persons, were stained with human blood and as per statements of other witnesses, accused- persons inflicted injuries with these weapons on the body of the deceased, on account of which, he succumbed to death.
Learned counsel for the appellants further argued, that only interested witnesses have been examined and other witnesses, who were present on the spot, have not been examined by the prosecution, which makes prosecution story doubtful. No doubt, as per the statements of prosecution and defence witnesses, other persons were present on the spot, but the prosecution witnesses have not named any person, who could have been examined by the prosecution. On the contrary, defence witness has specifically narrated names of five persons, but none of them has been examined by defence. Merely because witnesses examined by the prosecution are interested in prosecution, their evidence cannot be discarded but as a matter of principle, their evidence is to be scrutinized cautiously. We have cautiously scrutinized the evidence of all the prosecution witnesses, who were present at the scene of occurrence, and come to the conclusion that accused-persons inflicted injuries on the body of deceased, which resulted in his death.
Learned counsel for the appellants further argued, that none of the injuries found on the body of the
deceased was sufficient in the ordinary course of nature to cause death. PW.7 Dr. [ENTITY] has also admitted, that no single injury, found on the body of the deceased, was sufficient to cause death. He has also admitted, that injuries No.1 and 2 have not caused damage to brain matter and membrane of deceased and no fracture was caused on account of these injuries. There was only one fracture on the right patella of deceased. In such circumstances, it is a fit case, where the accused-persons should be convicted under [SECTION] [ACT] instead of [SECTION] [ACT].
As far sentence is concerned, in [PRECEDENT], death was caused by gandasi, thukwa and lathi and while convicting accused under [SECTION], sentence of five years and fine of Rs.3500/- was imposed on each accused. In [PRECEDENT], death was caused with lenjas, lathis etc. and incident was 8 years old and one of the accused was 70 years old, accused were awarded 5 years' sentence. In [PRECEDENT], 24 injuries were inflicted with [ENTITY], [ENTITY], [ENTITY], [ENTITY] and caused death of deceased and accused were sentenced to 7 years imprisonment. In such circumstances, we deem it fit to award sentence of 10 years' rigorous imprisonment and fine of Rs.1000/- to each accused- person under [SECTION] [ACT].
Thus, appeal of the appellants is partly accepted and conviction and sentence awarded under [SECTION] [ACT] is altered into [SECTION] [ACT] and sentenced to 10 years' rigorous imprisonment and fine of Rs.1000/- and in default of payment of fine, each appellant- accused shall undergo two months' simple imprisonment. Conviction and sentence awarded under [SECTION] and [SECTION] [ACT] is maintained. Substantive sentences shall run concurrently.
[ [ENTITY] ],J. [ [ENTITY] ],J. /m.asif/