1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CRIMINAL APPEAL No. 314 of 1990 NANAK RAM V/S STATE OF RAJASTHAN Date of Judgment : 19th Jan., 2010 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI C M TOTLA,J. Mr.J.S.Choudhary & Mr.Pradeep Choudhary, for the appellant. Mr.A.R.Nikub, P.P., for the State. Mr.Vineet Jain for Mr.Sandeep Mehta, for the complainant. BY THE COURT : (Per Hon'ble Gupta,J.) This appeal has been filed by the appellant Nanak Ram against the judgment of learned Sessions Judge, Bikaner dated 1.10.1990, convicting the appellant for offence under Section 302/149 IPC, and sentencing him to imprisonment for life along with fine of Rs.500/- in default to undergo one year's rigorous imprisonment, at the same time also convicting him for offence under Section 148 and sentencing to six months' rigorous imprisonment, under Section 447 sentencing to two months' rigorous imprisonment, under Section 324/149 sentencing to one year's rigorous, imprisonment and also convicting under Section 323/149 and sentencing to three months' rigorous imprisonment. All substantive sentences were made to run concurrently. In this case, there were six more accused persons, 2 and on filing of the charge-sheet against those six accuseds, the matter was committed and they were tried vide Sessions Case No.68/83, however, since this appellant was absconding in his matter Challan was subsequently filed. The facts of the case are, that on 29.5.83 at 11 AM some unknown person made a telephonic call at the Police Station Nokha, to the effect, that near village Somalsar, there has been a quarrel, wherein one person has died and some have been injured. The information being incomplete, P.W.13 Aste Ali SHO made a report on the Roznamcha (Ex.43) and went on the site. There he found Shera Ram in injured condition, and dead body of his brother being Shivji Ram to be lying. This SHO recorded statement of Shera Ram (Ex.P/29) and obtained his signature, and then sent those statement to the Police Station for registration of regular FIR, whereon FIR (Ex.P/44) was registered. He prepared site plan (Ex.P/3), site inspection note (Ex.P/45), inquest report (Ex.P/5), and sent the dead body for post mortem. Blood stained earth and control earth was recovered vide Ex.P/6, the weapons Jaees lying on the site were taken into possession vide Ex.P/7, which was two in number and in broken condition. Footwear of the victims were also available there, which were taken into possession vide Ex.P/8, wearing apparels of deceased Shivji Ram were taken into possession vide Ex.P/9. After completing the necessary investigation, on the accused appellant being arrested, challan was filed in the Court of Munsiff and Judicial Magistrate, Nokha wherefrom the case was committed to the trial Court. 3 The story rather narration of the incident, according to Ex.P/29 is that his elder brother Shivji Ram had obtained Patta of land in the western side of the road in village Somalsar. Thereupon accused Bhera Ram and Sadula Ram told that they will not allow him to take Patta. Some 2-2 ½ months ago they erected fencing around the Pattasud land, whereupon Bhera Ram etc. were seriously annoyed. With this background it was deposed that at 10.30 in the morning on that day when the deponent, his brother Shivji Ram, and Balu Ram all the three brothers were repairing/re-erecting the fencing, the accused Bhera Ram duly armed with Barchhi, Sadula Ram armed with Lathi, sons of Sadula Ram being Mohan Ram and Surja Ram also armed with Barchhi, Gordhan armed with Barchhi and Sadula Ram's third son Nanak Ram and Chuna Ram armed with Jei, resident of Somalsar with due preparation entered into Bara from towards south side, and started dismantling fencing, whereupon the deponent and his brothers came to the Bara, and asked them that they have obtained Patta from the Panchayat, then why they are dismantling fencing, whereupon Bhera Ram and Surja Ram exhorted to kill, whereupon all the accused persons with intention to kill started giving beating to the deponent, and Shivji Ram. Balu Ram and Mangilal who were there on the spot got frightened, and stood on the side of the road, and requested not to give beating; as a result of injury Shivji Ram fell down, and treating the two to be dead all seven persons went away from there. Shivji Ram died on the spot, and he could not get any conveyance to go to Nokha. It was noticed by Aste Ali that the deponent was having injuries on the left side of the head, and was having bleeding injury on the backside, left thumb, right wrist, right palm 4 were also injured, and which were bleeding, and there was swelling. There were couple of marks of injury on the back, there were two injuries on the right thigh, and on the right leg, left tibia was bleeding. In this case, P.W.3 Shera Ram, P.W.4 Mani Lal, P.W.11 Balu Ram and P.W.14 Dhudi have been produced as eye- witnesses. P.W.5 Dr. Moti Lal is the doctor, who examined the injuries of Shera Ram and conducted the post mortem examination. According to the injury report Ex.P/32 total 11 injuries were found being (i) lacerated wound of 4 x 3 cm deep to the bone on lower half of the left leg anteriorly, (ii) a lacerated wound of 1 x 1/2 x 1/2 cm on middle 1/3 of the right leg laterly, (iii) Contusion of 15 x 1.5 cm on the right leg laterally, (iv) An abrasion 3 x 1/2 cm on the right scapula, (v) a lacerated wound of 6 x 1 x 1/2 cm on the left side on the head, 7 cm above the left ear, (vi) an abrasion 1 x 1 cm on the back side of the head, (vii) swelling 4 x 3 cm on the right palm, (viii) an abrasion 1 x 1/2 cm on the left thumb latterly, (ix) a contusion of 6 x 1 cm on the middle half of the right thigh medially, (x) a contusion of 3 x 1 cm on the right thigh 2 cm above the ninth injury and (xi) contusion in two in number, one of 4 x 1 cm and another of 3 x 1 cm on the upper half of the right gluteal, while according to the post mortem report Ex.P/33, the body of Shivji Ram was stout and 9 injuries were found being (i) an incised wound of 6½” x 1/2” brain deep on the head, (ii) a punctured wound of 1 x 1/2 x 1/2 cm on the left knee joint deep to the bone, (iii) multiple contusion of 1 cm each incised on the left elbow joint, (iv) an abrasion 1 x 1/2 cm on the 5 left ring finger dorsally, (v) a contusion of 4 x 2 cm on the lower half of the left leg anteriorly, (vi) swelling 2 x 2 cm on the left leg near the 5th injury, (vii) a contusion of 1 x 1 cm on the right thigh, (viii) an abrasion 3 x 1 cm on the right knee joint near the ankle joint, and (ix) an abrasion on the right middle finger dorsally. Now we straightway come to the evidence of P.W.3 Shera Ram, who is the star witness and is injured witness also in the incident. He has deposed, that towards the south western side of the village three pattas have been issued in the name of three brothers i.e. himself, deceased Shivji Ram and Balu Ram, and one consolidated Bara exists there, which is in their possession for last 25-30 years, thereon earlier there was a fencing, however that was damaged at different places, and therefore, about a month before incident fresh fencing was erected. On the date of incident they were erecting/repairing the fencing, at that time at about 9 in the morning accused Bhera Ram, Surja Ram, Mohan Ram, Nanak Ram, Gordhan, Chuna Ram and Sadula Ram started damaging the fencing. Appellant Nanak Ram along with Chuna Ram were armed with Jaees, while Sadula Ram was armed with Lathi, and other four accused persons were armed with Barchis. Shivji Ram asked them not to damage the fencing, as it is their pattashud land, the witness was about 20 paces behind Shivji Ram, and was along with Balu Ram. On Shivji Ram's asking to desist, Bhera Ram and Surja Ram challenged to kill them, and those two persons inflicted Barchi injuries on Shivji Ram, as a result of which he fell down. Then all the seven persons inflicted 6 injuries on him in a fallen condition. The witness also came on the spot, and intervened, then he was also given beating, Mohan Ram inflicted Barchi injury on his head, and then all the persons gave beating. Dhudi and Mangi Lal rushed to the spot, and Dhudi lied upon the witness to save, while Balu and Mangi Lal requested the accused not to give beating, the accused persons then went away. Shivji Ram died on the spot. Dhudi tied her Odni on the head of Shivji Ram. He has proved the statement recorded by police being Ex.P/29 and has also proved other memos. He has also deposed that after he had fallen down even in fallen condition, Nanak Ram also inflicted injuries to him, and on Shivji Ram also. He has been cross-examined at length, initially long drawn cross-examination is directed on the aspect of complaint having been made against the Investigating Officer. Then he was confronted with the statement recorded in earlier sessions case. Then he was cross-examined about the length of time for which they were in possession, the dimensions of the land etc. He has denied the suggestion about any way to be going through the land in question, or to Delana Kuan. He has not admitted that in his previous statement dated 26.3.84 he has deposed about the land being in his possession for last 8-10 years. He has admitted that stones, mood etc. were got collected on the land by his brother Shivji Ram, who was the head of the family, and the material was stored some 15-20 days earlier. Then he has stated that application was given in the Panchayat for patta, site was inspected, and then pattas were granted. Nanak Ram was stated to be armed with Jaee of iron horns. He has maintained the presence of the other three witnesses Mangi Lal, Balu Ram and Dhudi. Then 7 he has denied to be knowing Ishar Ram, however he has admitted to be knowing other persons being residents of Somalsar, but stated, that they were not damaging the fencing. Then he has stated that his brother Shivji Ram and accused Bhera Ram, both have contested the election, wherein his brother had lost and Bhera had won. Then he has stated to be knowing Dhuda Ram Sarpanch, but denied Jag Ram to be nephew of Bhera, and deposed ignorance about Bhera Ram helping Jag Ram in election of Sarpanch. Then he has denied to be knowing Satyanarayanmal, or Satyanarayan to be Dharmela of Shivji. Then he has admitted that Yes he was Dharmela. He has denied to be knowing about villagers having initiated some suit in Tehsil for patta of the land. He has also denied the land to be a burial ground for burying dead bodies of children of village. He has also denied to be knowing any appeal having been filed against allotment in Panchayat Samiti. Then he has denied suggestion about having purchased the land for Rs.10,000/- from Satyanarayan, and to have erected fencing. He has stated that Bhera and Sadula are cousins. Then he has stated that the accused Bhera Ram had been murdered, wherein we were involved, and that he is in custody in that case. This is the whole evidence of Shera Ram. The other three witnesses have also corroborated the evidence of this witness in all material particulars. Then Dhuda Ram P.W.2 has been examined, who happens to be Sarpanch at the relevant time; he is motbir of various memos; and has also proved various documents, like application filed by the three persons for grant of patta, the proceedings taken thereon, and has also proved the pattas, cash book about deposit of the money. He has also stated that Bhera Ram had 8 filed appeal against the grant of pattas, then appeal was further filed before the Collector, the notices received therefrom have been proved by him. He has denied there being any way to Delana Kuan through the land in question. He has stated that on 12.1.83 the nature of the land was converted into Abadi. Then the witness was suggested in different ways about existence of the way on the land in question, but he positively maintained that there was no such way. He has also deposed that accused Bhera Ram and Nanak Ram did not make application for allotment of land to them. He has admitted that he was also arrayed as accused in the murder of Bhera Ram, which Bhera Ram was accused in the case of murder of Shivji Ram. He has also stated that Sadula Ram and Nanak Ram did not move any application for purchase of land in question. He has denied that application of Shivji Ram being Ex.13 was subsequently obtained as an antedated. Thus, there is indication that there was a dispute about the land in question. It appears that Bhera Ram and Nanak Ram wanted to have the land, while on the land being allotted to the victims, controversy was sought to be raised, on the ground, the land being of cremation ground or burial ground for burying dead bodies of children of the village, or it being a way leading to Delana well. It also appears that pattas were challenged by filing appeals, and then revision before the Collector. All those documents have been produced, and proved, on record. But then, it is not shown that the patta had been set aside, or that, either the victims were in illegal 9 possession, or that the appellant had any legal right, title or interest in the land in question. In our view, it is clearly established from the evidence of the four eye- witnesses being P.W.2, 3, 4 and 11 that all the accused persons including the appellant did come on the land in question, in a body, duly armed with deadly weapons like Barchis and Jaeees, and started dismantling the fencing, and on Shivji Ram objecting it, injuries were inflicted on him, and when Shera Ram wanted to save, injuries were inflicted on him also. It is, thus, clear from the evidence that Nanak Ram was also a member of the unlawful assembly comprising of seven persons, and did commit a criminal trespass over the land, and thus, committed offence under Section 447, being armed with deadly weapon, also committed the offence under Section 148, and since he inflicted injuries with Jaee on Shivji Ram and Shera Ram, he is also guilty of the offence under Section 323 and 324/149. Then the question is, as to what is the offence made out against him, on the death of Shivji Ram. Learned trial Court has found that the object of the unlawful assembly was to commit murder of Shivji Ram, inasmuch as, on Shivji Ram's objecting, Bhera Ram and Surja Ram gave out that Shivji Ram should be killed, and injuries were caused on him. In our view, a proper comprehension of the entire material, which rather clearly appears that the common object of the assembly was to dispossess the victims, and 10 to remove the fencing, and in order to accomplish this they were armed with deadly weapons also. In this sequence when Shivji Ram came, Surja Ram and Mohan Ram even if told that he should be killed, the common object may have developed on the spot itself, but then, he can be held guilty only of the offence with the aid of Section 149, which may have been made out on account of injury being caused to Shivji Ram, rather even fatal injury being caused to Shviji Ram. According to P.W.5 Moti Ram it was only injury No.1, which was fatal, otherwise other injuries excluding injury No.1, whether individually or collectively could not cause death. In our view, the act, if comprehended in the totality, that after first injury all other injuries are on non-vital parts of the body, and injuries on Shera Ram's person are all simple in nature, it cannot be said, that the act of the accused persons falls in any of the clauses of Section 300 IPC, with the result, that the offence does not travel beyond Section 304 IPC, and looking to the nature of injury received, only knowledge can be attributed to the assailants. Thus, trial Court was in error in convicting the appellant for the offence under Section 302/149 IPC, rather instead, he was required to be, and could be, convicted only for the offence under Section 304 Part-II IPC r/w Section 149 IPC. Resultantly, the appeal is partly allowed, the conviction of the appellant for offence under Section 302/149 is set aside, and instead he is convicted for offence under Section 304 Part-II r/w Section 149 IPC, and for this offence, he is sentenced to 5 years' rigorous imprisonment. All other conviction and sentences are 11 however maintained. The learned trial court is directed to take steps for apprehending the accused appellant, for serving out the remaining term of sentence, if there be any. ( C M TOTLA ),J. ( N P GUPTA ),J. /tarun/