1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT (1) JOR SINGH & ORS. VS. STATE OF RAJASTHAN (D.B.CRIMINAL APPEAL NO.250/82) (2) STATE OF RAJASTHAN Vs. JOR SINGH & ORS. (D.B.CRIMINAL APPEAL NO.308/82) D.B.Criminal Appeals under Section 374(2) Cr.P.C. against the judgment dated 19th May, 1982 in Sessions Case No.3/82, passed by learned Sessions Judge, Jalore. Dated:- 13th August, 2008. HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR.JUSTICE SANGEET LODHA Mr.S.G.Ojha for the appellants in D.B.Criminal Appeal No.250/82 and for the respondent in D.B.Criminal Appeal No.308/82. Mr. V.R. Mehta, Public Prosecutor for the State. Mr.Doongar Singh, for the complainant. BY THE COURT:- (PER HON'BLE SANGEET LODHA,J.) 1. These appeals are directed against judgment dated 19th May, 1982 passed by learned Sessions Judge, Jalore, whereby the appellants Jor Singh, Dalpat Singh and Veer Singh were convicted and sentenced as under:- Jor Singh U/s. 325/34 IPC : To suffer rigorous imprisonment for 7 years 2 with a fine of Rs.2,000/- and in default in payment of fine to further suffer 1 years rigorous imprisonment. U/s 452 IPC To suffer rigorous imprisonment for a period of 2 years. U/s 323 IPC To suffer 6 months' rigorous imprisonment. The sentences were directed to run concurrently. Dalpat Singh and Veer Singh have also been convicted under Sections 325/34, 452 and 323 IPC. However, they were not sentenced to suffer imprisonment immediately while giving benefit under Section 4 of Probation of Offenders Act, 1958 and they were ordered to be released on probation on their furnishing security of Rs.3,000/- and the bonds of the like amount on the following conditions:- (i)The accused persons shall not use force, abstained from taking the law in their hands and shall maintain peace and good conduct . (ii)On breach of the aforesaid conditions, shall remain present to suffer imprisonment when summoned by the Court. 2. In nutshell the prosecution case is that Sarva Shri Chiman Singh ( deceased), Balwant Singh(informant) and the accused Jor Singh, are brothers. Balwant Singh and Jor Singh live in adjoining houses with a common wall. Balwant 3 Singh got constructed a shade for the cattle in his house by putting tin sheets over the common wall. On 26.6.81 at 7 a.m. while Balwant Singh was standing at his house , the accused Jor Singh started abusing him and threatened to kill him, if the tin sheets are not removed from common wall. It is stated that Balwant Singh tried to make Shri Jor Singh understand that the common wall whereupon, the tin sheets rest has been got constructed by him alone and the same is not causing any inconvenience to him, therefore, he should not indulge in an unnecessary quarrel. However, accused Jor Singh and his sons Dalpat Singh and Veer Singh equipped with the lathis and axe entered the house of Balwant Singh and assaulted him. Jor Singh and Dalpat Singh inflicted lathi blow on the head of the informant Balwant Singh and Veer Singh inflicted a axe blow on his head. On hearing the cry, Chiman Singh and his son Man Singh came to the place of occurrence and intervened to save the informant Balwant Singh . Thereupon, Shri Veer Singh inflicted a axe blow on the head of Chiman Singh and Jor Singh and Dalpat Singh inflicted multiple blows by lathis on the head of Shri Chiman Singh, who fell down but, even thereafter, the accused persons continued to inflict injuries 4 on Chiman Singh , which resulted in tearing of his head and he fell unconscious. When Man Singh intervened to save his father Chiman Singh, accused Veer Singh inflicted a axe blow on the head of Shri Man Singh, accused Jor Singh inflicted lathi blows on his head and accused Dalpat Singh inflicted lathi blows on the head and ankle of his left hand . That apart, the accused persons also inflicted injuries on the head of Smt. Ugam Kanwar w/o late Shri Chiman Singh and Miss Hawa Kanwar D/o Balwant Singh, who also intervened in the quarrel. It is stated that hearing the cries, Sarva Shri Hem Singh s/o Guman Singh and Bhanwar Singh s/o Vanne Singh came to the place of occurrence and saved the victims with great difficulty. Shri Chiman Singh was taken to hospital in a bullock cart , however, he succumbed to the injuries on his way to the hospital. 3. On 26.6.81 at 8.30 a.m., the injured Shri Balwant Singh lodged an oral report of the incident occurred as aforesaid, at Police Station, Bagra, district Jalore. Accordingly, an FIR was registered against the accused persons Serva Shri Jor Singh, Dalpat Singh and Veer Singh for commission of offences u/ss. 302, 324, 323 and 452 of Indian Penal Code ( in short “IPC” hereinafter). 5 4. After registering the case, the investigation commenced. After inquest proceedings, the body of the deceased Chiman Singh was taken for autopsy . Dr.Jagdish Prasad conducted the post mortem of the deceased Chiman Singh and also examined the injuries of the victims Serva Shri Balwant Singh, Man Singh, Smt. Ugam Kanwar and Miss Hawa Kanwar . He also examined the injuries on the persons of the accused namely, Jor Singh and Veer Singh. 5. The accused appellants were arrested. At the instance of accused Jor Singh and Dalpat Singh , lathis and at the instance of accused Dalpat Singh , axe were recovered. The weapons used in the commission of offences and blood stained cloths of deceased Chiman Singh, injured Man Singh and Balwant Singh were sealed. On completion of the investigation, a charge sheet u/ss. 302, 452, 325, 323 read with 34 IPC was filed against the accused persons before the learned Judicial Magistrate, First Class, Jalore. On 1.12.81, the matter was committed to the Sessions and thereafter the case came for trial before the Sessions Judge, Jalore and the charges were framed u/ss. 302, 302/34, 325/34 , 323 and 452 IPC against the accused persons, who denied the charges and claimed trial. 6 6. The prosecution in support of its case produced as many as 12 witnesses and produced documentary evidence Ex.P/1 to Ex.P/27. The statements of the accused persons were recorded u/s. 313 Cr.P.C., wherein they denied their involvement in the crime and stated that they were assaulted by the complainant party which resulted in injuries on the persons of the accused Jor Singh and Veer Singh. The accused persons did not produce any witness in their defence, however, they produced an injury report of Bhanwari Bai w/o Jor singh produced as Ex.D/1. 7. The learned trial Court after considering the evidence available on record and the submissions made by the parties, convicted and sentenced the accused appellants as indicated hereinabove. 8. We have heard the learned counsel for the accused appellants, learned Public Prosecutor and the counsel appearing on behalf of the complainant and also examined the material available on record in its entirety and objectivity. 9. It is contended by the learned counsel appearing on behalf of accused appellants that the learned trial court has miserably failed in appreciating the serious question of right 7 of private defence raised on behalf of the accused- appellants. The learned counsel submitted that on the basis of the evidence on record, it is manifestly clear that the complainant party was the aggressor and the accused persons have exercised their right of private defence . The learned counsel submitted that the entire incident has occurred at the spur of the moment and the things took the shape right on the spot but, the prosecution has not produced any evidence worth the name to establish as to what actually lead to the unpleasant incident. The learned counsel submitted that the learned trial court has arrived at a categorical finding that the accused persons have inflicted the injuries without any intention to cause death or to cause such bodily injuries which were likely to cause death. The learned counsel submitted that in such situation when the accused persons have also suffered the injuries , the plea of right of private defence advanced by them become highly probable therefore, the benefit of doubt should have been extended to them. In this regard, the learned counsel has relied upon the Division Bench decision of this Court in the matter of “Gurdeo Singh & Ors. vs. State of Rajasthan”, 1994 RCC, 620 and decision of the Hon'ble Supreme Court 8 in the matter of “ Moti Singh vs. State of Maharashtra”, 2002(2) J.T.(SC), 133. The learned counsel further submitted that the prosecution has failed to explain the injuries on the persons of the accused and suppressed the genesis and origin of the occurrence which throws doubt on the prosecution case, more so when the prosecution evidence consisted of the interested witnesses,therefore, the accused are entitled to be acquitted. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of “Laxmi Singh & Ors. vs. State of Bihar” AIR 1976 (SC), 2263. 10. Per contra, the learned Public Prosecutor and the counsel for the complainant contended that the learned trial court has seriously erred in acquitting the accused persons for the offences u/ss. 302, 320/34 IPC. The learned Public Prosecutor submitted that deceased Chiman Singh received 5 injuries out of which, 4 were on the head and these injuries were sufficient in ordinary course to cause death. The learned Public Prosecutor submitted that the Medical Officer Dr. Jagdish Prasad (P.W. 11) who has conducted the post mortem of the deceased Chiman Singh has categorically opined that the injuries found on the dead 9 body of Chiman Singh were ante mortem in nature and the injuries no. 1 to 4 cumulatively were sufficient in ordinary course of nature to have caused death. While drawing the attention of this Court to the post mortem report (Ex.P/13), the learned Public Prosecutor further submitted that the cause of death has been found to be due to syncope(shock) due to injury on vital organ(brain) and hemorrhage. Accordingly, it is submitted that on the facts and in the circumstances of the case, it cannot be said that the accused persons had no intention to cause death of deceased Chiman Singh or to cause such bodily injuries which may result in death in ordinary course. In the alternative,the learned Public Prosecutor submitted that even if the offences u/ss. 302, 302/34 IPC is not made out then too, on the basis of the evidence on record, the accused persons were liable to be convicted u/s. 304 -I or 304-II IPC. The learned Public Prosecutor submitted that the learned trial court has committed no error in rejecting the plea of private defence raised on behalf of the accused persons. The learned Public Prosecutor further submitted that it is absolutely incorrect to say that the injuries on the persons of the accused have not been explained by the 10 prosecution. It is submitted that it has come on record that when the accused persons inflicted blows on the deceased Chiman Singh, he had taken out a stick from the fencing nearby and inflicted blows on the accused persons in his defence. The learned Public Prosecutor lastly urged that after proper evaluation of the evidence on record, the learned trial court has arrived at a categorical finding that the accused persons were the aggressor and some injuries have been inflicted on the persons of the accused by complainant party exercising their right to private defence therefore, even if this Court comes to the conclusion that the offences u/ss. 302, 302/34, 304-I and 304-II IPC is not made out then too, the conviction of the accused by the learned trial court u/ss. 325/34, 323 and 452 IPC cannot be faulted with. 11. Dr. Jagdish Prasad(P.W. 11) who was at the relevant time Medical Officer at Government Dispensary, Bagra conducted autopsy over the dead body of Chiman Singh and as per the post mortem report (Ex.P/13) and his deposition before the learned trial court following ante mortem injuries were found on the body of the deceased Chiman Singh:- “1.Lacerated wound 3 c.m. X 0.5 c.m. X skin 11 deep on scalp at right pariatal region 3 c.m. right to midline. 2. Lacerated wound 3 c.m. X 0.5 c.m. X skin deep on the centre of head. 3. Lacerated wound transverse in position 10 c.m. X 3 c.m. X bone deep on back of head extending from mid line to left ear. Bone fragments seen blood present. 4. Lacerated wound 5 c.m. X 2 c.m. X skin deep on left temporal region, transverse in position just above left ear. 5. Two parallel bruises 35 c.m. X 0.5 c.m. extending downward from back of left shoulder to left renal area. Reddish in colour.” It has been opined by the Medical Officer Dr.Jagdish Prasad(P.W.11) in unequivocal terms that the injuries no.1 to 5 are caused by blunt object and the cause of death is due to syncope(shock) due to injury on vital organ(brain) and hemorrhage. Looking to the nature of injuries and cause of death of Shri Chiman Singh , his death is concededly homicidal in nature. 12. As per the injury reports (Ex.P/14 to Ex.P/19), the victims Shri Balwant Singh, Smt. Ugam Kanwar, Shri Man Singh , Miss Hawa Kanwar and accused persons Serva Shri Jor Singh and Veer Singh have suffered the injuries as under:- BALWANT SINGH “1. Lacerated wound-4 c.m. X 0.25 c.m. X skin deep on left side of fore head 7 c.m. above left 12 eye brow-bleeding present. 2. Lacerated wound 7 c.m. X 0.5 c.m. X skin deep on left side of head at temporal region- 8 c.m. above left ear. 3. Lacerated wound 4 c.m. X 0.5 c.m. X skin deep on right side of the head at parietal region 10 c.m. above right ear. 4. Swelling 8 c.m. X 7 c.m. with two parallel contusion 5 c.m. X 0.5 c.m. on medial aspect of left fore arm 3 c.m. below medial border of left elbow. Reddish in colour. 5. Swelling 10 c.m. X 7 c.m. on medial aspect of right forearm just below right elbow. 6. Two parallel contusion, transverse in position 20 c.m. X 0.5 c.m. on upper part of back chest extending from lower end of left scapula to lower end of right scapula. Reddish in colour. 7. Two parallel contusion transverse in position 19 c.m. X 0.5 c.m. on lower position of back just above superior iliac spine.” Smt. Ugam Kanwar “1. Lacerated wound 0.5 c.m. X 0.25 c.m. X skin deep on right side of scalp(head) at temporal region 5 c.m. right to mid line. Bleeding present. 2. Swelling 3 c.m. X 2 c.m. at lateral end of left clavicular region with contusion 3 c.m. X .25 c.m. directed medially.” Man Singh “1. Lacerated wound 2 c.m. x 0.5 c.m. x 0.5 c.m. at mid of fore head 3 c.m. above eye brow line. Bleeding present. 2. Lacerated wound 5 c.m.x 0.5 c.m. x skin deep on right side of fore head at perital region 3 c.m. right to midline. 3. Big swelling all around left elbow joint- tenderness present. Movement restricted.” Miss Hawa Kanwar 13 “1. Lacerated wound `L' shaped 6 c.m. x 0.5 c.m. x skin deep and 1.5 c.m. x 0.5 x skin deep on right side of scalp (head) at parietal region 3 c.m. right to mid line-Bleeding present.” Jor Singh “1. Lacerated wound 4 c.m. x 4 c.m.x 0.5 c.m. x skin deep (angular ) on right temporo parietal region of head 7 c.m. above right ear. 2. Lacerated wound 3 c.m. x 0.25 c.m. x skin deep at upper end of base of right ear. 3. Lacerated wound 3 c.m. x 0.5 c.m. x skin deep at left parietal region of head 8 c.m. above left ear. 4. Lacerated wound 1.5 c.m. x 0.25 c.m. x skin deep left side of fore head 2.5 c.m. above left eye brow. 5. Contusion 1 c.m. x 0.5 c.m. on mid of nose. 6. Swelling 6 c.m. x 5 c.m. on medial side of left knee. Tenderness present. Movement not restricted. 7. Swelling 4 c.m. x 5 c.m. on dorsum of right forearm on ulnar side just above wrist joint. Tenderness present. Movement restricted. Veer Singh “1. Contusion( L shape) 5 c.m. x 2 c.m. on back of left shoulder Tenderness present. Reddish in colour. Movement restricted. 2. Lacerated wound 0.5 c.m. x 0.25 c.m. x skin deep at centre of scalp. 3. Abrasion 1 c.m. x .25 c.m. on right side of forehead 3 c.m. above right eye brow.” 13. Admittedly, deceased Chiman Singh , Balwant Singh and the accused Jor Singh are brothers. Smt. Ugam Kanwar (P.W.1) is the widow of deceased Chiman Singh, Miss Hawa Kanwar is the daughter of Balwant Singh and Man Singh is 14 son of deceased Chiman Singh. The accused Dalpat Singh and Veer Singh are sons of accused Jor Singh. Thus, all the victims and the accused persons are close relatives. It has come on record that there was absolutely no enmity existing amongst the members of the families of three brothers and they were living happily without any ill-will in their separate houses. It is to be noticed that P.W. 1 Smt. Ugam Kanwar in her deposition before the learned trial court has categorically stated that amongst the three brothers, there was no quarrel or any cause of annoyance and all were in talking terms. It is stated that the properties were partitioned amongst the brothers and each brother was occupying his own share. It is further stated that even amongst the spouses of three brothers, there was no quarrel and they were at good terms. Similarly, the victim Balwant Singh (P.W.6) has deposed that no dispute regarding partition of the property was existing between him and accused Jor Singh and there was no occasion of quarrel between them prior to the incident occurred. It is further stated that when he constructed the cattle shade which is the genesis of the incident occurred , no objection was raised by accused Jor Singh. Even, Man Singh (P.W.5) 15 son of the deceased Chiman Singh has deposed in unequivocal terms that no dispute regarding the partition of the properties was existing between his father late Shri Chiman Singh, his uncle Balwant Singh and Jor Singh and that all the three families of brothers were in talking terms and used to live affectionately as brothers. Therefore, it can be safely concluded that the incident in question has occurred all of a sudden without there being any pre existing ill will or motive. 14. It is not in dispute that Balwant Singh (P.W.6)and accused Jor Singh are living adjoining houses with a common wall. It has also come on record that the houses of Balwant Singh and Jor Singh are separated by a wall in the half portion and by fencing of throne in the remaining half portion. As per Balwant Singh (P.W.6) , on the date of occurrence of unfortunate incident when he was standing in his house, his brother Jor Singh, Veer Singh and Dalpat Singh asked him to remove the tin sheets resting on the common wall and when he made an attempt to make them understand that the wall has been constructed by him and the shade is not causing any inconvenience to them, therefore, they should not indulge in unnecessary quarrel, 16 they equipped with the lathis and axe, came to his house crossing the fencing and assaulted him . It is to be noticed that in the FIR, Shri Balwant Singh has stated that Shri Jor Singh abused him and threated to kill him, if the tin sheets are not removed, however, in his deposition before the learned trial court , he has nowhere stated that any such threatening was given. Apart from Shri Balwant Singh, the other witnesses, whose presence at the place of incident cannot be doubted is Miss Hawa Kanwar (P.W.2), daughter of Shri Balwant Singh. She has also supported the statement of his father Balwant Singh regarding the origin of incident. It is to be noticed that apart from the oral deposition of the witnesses, regarding the place of occurrence, the investigating agency has found the blood stained earth from the house of the victim Balwant Singh. Therefore, it can be safely concluded that the accused persons unauthorisedly entered the house of Shri Balwant Singh , assaulted him and inflicted injuries as noticed above. But then, it is pertinent to note that all the injuries caused to Balwant Singh are found simple in nature. That apart, all the witnesses including Balwant Singh (P.W. 6) himself have categorically deposed in their 17 deposition before the learned trial court that on his head an injury was caused by Veer Singh from blunt side of the axe and Jor Singh and Veer Singh inflicted lathi blows on his head. Had there been any intention of the accused to kill him then, obviously, accused Veer Singh would not have used blunt side of the axe to cause injury on the persons of the victim Balwant Singh. However, from the consistent deposition of all the witnesses examined by the prosecution viz. Ugam Kanwar(P.W.1), Hawa Kanwar (P.W.2) , Man Singh (P.W.5), Balwant Singh (P.W.6) and Hem Singh (P.W.8), it is manifestly clear that the incident has occurred at the house of the victim Balwant Singh and the accused persons were the aggressors. 15. It is also not in dispute that the deceased Chiman Singh, eldest brother of victim Balwant Singh and accused Jor Singh was residing in his house situated at a distance of about 20 steps from the house of Balwant Singh. Therefore, his coming to the place of occurrence hearing the cries of his brother cannot be doubted. All the witnesses whose presence at the place of occurrence was probable and cannot be doubted , have deposed that when shri Chiman Singh intervened in the quarrel to save Balwant Singh, 18 accused Veer Singh inflicted a blow on his head by blunt side of the axe and Jor Singh and Dalpat Singh inflicted lathi blows on his head and thereafter, when he fell down , they continued to beat him. But the fact remains that again the blunt side of the axe was used by the accused Veer Singh to cause injury on the head of deceased Chiman Singh. If the accused persons had any intention to cause death of Shri Chiman Singh then obviously, the sharp side of the axe would have been used instead of the blunt side. Therefore, from the deposition of the prosecution witnesses and other evidence on record, it cannot be inferred that the accused persons had any intention to cause death of Shri Chiman Singh. 16. It is pertinent to note that as per the injury reports (Ex.P/18 & P/19) of the accused persons viz. Jor Singh and Veer Singh, they have suffered 7 and 3 injuries respectively. The learned trial court after examining the entire evidence on record has arrived at the finding that the injuries on the persons of the accused have not been properly explained by the prosecution. It is to be noticed that P.W. 1 Mrs.Ugam Kanwar in her cross examination before the learned trial Court has stated that the blood was 19 oozing from the head and hand of Jor Singh and so also from the head of Veer Singh. She has further stated that she did not pay any attention as to from which part of the body of the accused persons the blood was oozing . That apart, victim Man Singh (P.W. 5)son of deceased Chiman Singh in his deposition have categorically deposed that his father had picked up a stick from the fencing to defend himself and while defending , the injuries were caused by him on the head and hands of the accused persons Jor Singh and Veer Singh. 17. The learned trial court after due scrutiny of the