1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT ************* S.B. CRIMINAL APPEAL NO. 475/1985 (Bholu @ Hanuman & Ors. vs. State of Raj.) & S.B. CRIMINAL APPEAL NO. 471/1985 (Vimal vs. State of Raj.) & S.B. CRIMINAL APPEAL NO. 479/1985 (Hitler & Anr. & Ors. vs. State of Raj.) Date of Judgment: 1st of February, 2008 PRESENTS. HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. N.K. Joshi, } Mr. Suresh Dhanwal, } on behalf of Mr. Praveen Balwada }, for the appellants. Mr. S.R. Surana, for the appellants. Mr. B.S. Chabba, Public Prosecutor. The accused-appellants, by this appeal under Section 374(2) Cr.P.C., have sought to challenge the judgment dated 02.11.1985 passed by the learned Additional Sessions Judge, Dausa, District Jaipur by which they have been convicted and sentenced as under: 2 S.No Accused Conviction Sentence 1 Bholu @ Hanuman & Ratan Lal u/S 307 IPC 4 years' R.I. and a fine of Rs. 400/- in default of which to further undergo 6 months' R.I. u/S 324/149 IPC 2 years' R.I. and a fine of Rs. 200/- in default of which to further undergo 3 months' R.I. u/S 354/148 IPC 1 year's R.I. and a fine of Rs. 100/- in default of which to further undergo 3 months' R.I. 2 Vimal Garg u/S 307 IPC 4 years' R.I. and a fine of Rs. 400/- in default of which to further undergo 6 months' R.I. u/S 324/149 IPC 2 years' R.I. and a fine of Rs. 200/- in default of which to further undergo 3 months' R.I. u/S 354/148 IPC 1 year's R.I. and a fine of Rs. 100/- in default of which to further undergo 3 months' R.I. 3 Prahlad, Hitlar & Ram Singh u/S 307/149 IPC 4 years' R.I. and a fine of Rs. 400/- in default of which to further undergo 6 months' R.I. u/S 324 IPC 2 years' R.I. and a fine of Rs. 200/- in default of which to further undergo 3 months' R.I. u/S 354/148 IPC 1 year's R.I. and a fine of Rs. 100/- in default of which to further undergo 3 months' R.I. 3 Sita Ram u/S 307/149 IPC 4 years' R.I. and a fine of Rs. 400/- in default of which to further undergo 6 months' R.I. u/S 324/149 IPC 2 years' R.I. and a fine of Rs. 200/- in default of which to further undergo 3 months' R.I. u/S 354/148 IPC 1 year's R.I. and a fine of Rs. 100/- in default of which to further undergo 3 months' R.I. 2. The brief facts of the case are that a report came to be lodged by Ved Prakash Chaturvedi at Police Station Bandikui on 06.12.79. It was stated in the report that his two daughters, namely, Ku. Kamlesh and Archana were returning to his residence after taking 3 medicines from the hospital in the evening, at about 7.45 P.M. Further, it was stated that when his daughters were on Sikandra Road, they were assaulted and after raising cry for help they become unconscious. The informant was informed by Khatiya Singh and thereafter he reached the place of occurrence. The informant carried his daughters to the hospital for medical assistance. According to the report, the younger daughter of the informant, namely Archana, had informed him that about 5-6 persons had assaulted them and she also named Ratan Lal and Prahlad. Thereafter, the informant had lodged the report which was registered as No. 263/79 for the offences under Section 147, 323 and 324 I.P.C. 3. After the conclusion of the investigation by the police, the challan came to be filed before the learned Magistrate, Bandikui against 10 persons, including the appellant, for the offences under Section 147, 149, 323, 324, 341, 354 and 307 I.P.C. The learned Magistrate then committed the case to the Court of Sessions and it came to be tried by the Additional Sessions Judge, Dausa. The learned trial court framed charges for the offence under Section 147, 307 read with Section 149, 324 and 354 4 I.P.C. The accused persons denied the charges and claimed for trial. The prosecution, in support of its case, produced 13 witnesses and had submitted 28 documents which were duly exhibited. The defence had produced Dr. Shanti Mathur (DW-1), a radiologist. They have also produced a report of the radiologist of Kamlesh as (Ex-D/1), which was sent from SMS Hospital to the SHO, Police Station Bandikui. The statements of the accused persons were then recorded under Section 313 Cr.P.C. The accused Hanuman Prasad and Prahlad have stated in their statements that they have been implicated on account of enmity. It was stated by Hanuman that Ved Prakash Chaturvedi, the complainant, was removed from the services of Railways because of the fact that his certificate was found to be false and for that purpose, he had asked for help from his grandfather, who was an officer in the Railways. The grandfather of the accused Hanuman Prasad did not accede to the request of Ved Prakash Chaturvedi as the matter was a serious one of forgery. He has also stated that the father of the accused had declined to sell a plot to the complainant and that there was scuffle between the accused Hanuman Prasad 5 and the son of the complainant. According to him, it was for all these reasons that the complainant and his family members bore enmity against the accused which resulted in his implication in the case. The accused Prahlad had stated that a few days before of the occurrence, quarrel had taken place on the football ground between him and Raju, son of the complainant, where Raju was beaten. Thereafter, the complainant himself came to the school, on the next day, and there was verbal altercation between him and the complainant. Therefore, according to the accused- appellant Prahlad, he has been falsely implicated on account of enmity. The other accused persons stated that all the witnesses are interested persons and they have made false statements and the accused have been falsely roped in. 4. The learned trial court, on the conclusion of the trial, passed the judgment on 02.11.1985, whereby three persons, namely, Yashwant, Suresh and Babulal have been acquitted and 7 persons were convicted for the aforementioned offences. 6 5. The learned counsel for the appellants have tried to assail the impugned judgment passed by the learned trial court on various grounds. They have submitted that there is no evidence on record to show, much less to establish, that the accused-persons had formed an unlawful assembly. They have also submitted that the prosecution have failed to prove that the injury was caused by knife as the same is not proved by the medical evidence on record and that the weapon of offence was not recovered in accordance to law. The learned counsel for the appellants have also submitted that no offence for attempt to murder is proved beyond reasonable doubt in this case because the medical evidence on record does not establish the same. Similarly, they have submitted that the prosecution has failed to prove that the injuries sustained by the injured were grievous in nature so as to establish the case under section 326 I.P.C. They have also submitted that there is no evidence, worth the name, to prove the prosecution case for the offences of outraging the modesty of the injured and the learned trial court has grossly erred in convicting the accused-appellants for the offences under Section 354 I.P.C., without any finding on the basis of 7 evidence on record. 6. The learned Public Prosecutor has supported the judgment passed by the learned court below. He had submitted that the accused-appellants had committed the offence on the way and have inflicted injuries to the girls who were returning home after taking medicines from the hospital. He has also been submitted that the prosecution has succeeded to bring home its case by producing the relevant evidence on record. 7. This Court has carefully gone through the material on record and has looked into the evidence produced by both the sides. At the outset, it may be stated that the learned trial court itself has held that the prosecution has failed to prove its case against Yashwant, Suresh and Babulal and therefore, he has acquitted them. Moreover, two persons who were the eye-witnesses according to the case of the prosecution, namely, Ram Karan (PW-9) and Om Prakash Chaturvedi (PW-10), had not supported the prosecution case and they had to be declared hostile. Likewise, Ashutosh (PW-12) does not support the prosecution story and denies the fact of 8 having seen the injured girls at the place of incident. The prosecution has also failed to establish that the recoveries have been made in accordance to law, so much, that the recovery of the weapon of the offence i.e. knife has not been proved beyond reasonable doubt as the Motbir for the same, namely, Krishan Kant Sharma (PW-7), does not support the prosecution case and was declared hostile. Similarly, another recovery witness, namely, Daljiner (PW-11) had also been declared hostile by the prosecution. 8. It is the case of the prosecution that the accused persons had formed an unlawful assembly and committed the alleged offence. But a perusal of the material on record, particularly the statements of the prosecution witnesses, goes to show that there is no evidence to that effect, worth the name. As a matter of fact, the learned trial court has convicted the accused persons with the aid of Section 149 I.P.C. but has not given any finding in that respect. After considering the facts and circumstances of the case and also the evidence on record produced by the prosecution it is to be held that prosecution has failed to prove its case that the accused persons had formed an 9 unlawful assembly and as such their conviction with the aid of Section 149 I.P.C. is not sustainable in law. 9. Therefore, the prosecution case for having committed the offences by the accused persons has to be looked into on the basis of individual acts of the accused- appellants. But before doing so, it has to be looked into as to what offence is made out against the accused- appellants. In this case, two persons, namely, Ku. Kamlesh and Archana have been injured at the hands of the accused persons. The injury report of Archana D/o Ved Prakash Chaturvedi (Ex-P/15) reads as under: 1. Archana Injury Size Injured part of body Nature Weapon Sign X- ray Remar k Incised wound 1”x½”x2” On the left iliac glinted region ante aspect directed obliquely margin are sharp cutted Simple Sharp Incised wound 1”x½”x1½” On the left --- region directed oblipiely margin are sharp cutted Simple Sharp Incised wound 1½”x1/24”x 1/24” On the right goin region margin are sharp cutted Direction of Injury within 6 weeks Simple Sharp 1.An oloser on the right knee, middle aspect Size 1/3”x1/3” 2. An oloser on the limb region on his vertebral column 1/3”x1/3” Nil Nil 10 The other injured person, Ku. Kamlesh had undergone medical examination and her injury report (Ex.- P/16) gives out the following injuries: Injury Size Injured part of body Nature Weapon Sign X-ray Re ma rk Incised wound 1½”x½”x1½” On the left 9th 10th, intereastal sparke lateral aspect, lung are clearly seem for internal haemorrhage X- ray is advised margin are sharp cutted Dangerous Sharp Incised wound 1”x½”x1” On the right region, internal margin of intra parietal organ are seen margin are sharp cutted Dangerous Sharp Incised wound 1”x3/4”x2½ ” On the right sub pubic region depth up to the bladder margin are sharp cutted Direction of Injury within 6 weeks Dangerous Sharp 1. Two black till on the right B.P.- 100/60 MM Pulse- 90/min Respiration- 20/min She is unconscious low the patient is shock condition and referred to Medical Jurist, SMS Hospital Jaipur Nil 10. It is to be noted that the investigation officer (PW-18) had put a query to the medical officer, Bandikui in respect of the nature of the injuries sustained by Ku. Kamlesh. In reply to it, on 07.12.79, the medical officer, Government Dispensary, Bandikui had mentioned that “अतः इस संभावना से भी इंकार नहीं िकया जा सकता है िक ूोपर इलाज नहीं िकया जाता तो उसकी मौत हो सकती थी।" 11 The Medical Jurist Dr. B.S. Thakuria has been examined before the trial court as (PW-8). It is noteworthy that, in his cross-examination, the said Medical Jurist had deposed that he had put question mark after mentioning the three injuries (Ex-P/16) as dangerous because he was not confirm about the same being so. Further, he has stated that at that time there was only a doubt about the said injuries being dangerous. He has also stated that when the radiological examination is conducted at SMS Hospital, Jaipur then generally the opinion is also sent from there. He has also stated that Ku. Kamlesh did not sustain any grievous injury. During the course of examination before the learned trial court, the Medical Jurist had also stated that he had not mentioned about the position of margins and the corners of the injury in (Ex- P/15 & Ex-P/16), therefore, he cannot say as to whether the injuries could be caused by this knife or not. In view of the aforesaid position in respect of the nature of injuries, and absence of any specific opinion by the Medical Jurist to the effect that the injuries in question were sufficient in the ordinary course of nature to cause death, the offence of attempt murder is not made out. This has been the consistent principle of law as laid 12 down by this High Court in a number of judgments such as, Munna vs. The State of Rajasthan, 1984 Cr.L.R. (Raj.) 529; Bhiyanram & Ors. vs. The State of Rajasthan, 1980 Cr.L.R. (Raj.) 688 and Bhanwar Lal & Ors. vs. The State of Rajasthan, 1996 RCC 701. Consequently, the conviction awarded to the accused- appellants under Section 307 I.P.C. is bad in law. 11. Now, coming to the question as to whether the injuries caused by the accused-appellants attracts the provisions of Section 326 I.P.C., as the same being grievous in nature or not. As mentioned above, the X-ray of the injuries sustained by Ku. Kamlesh was conducted at the SMS Hospital, Jaipur and the opinion was also to be given by the radiologist, who had conducted the same. The prosecution has failed to establish the injury of Ku. Kamlesh to be one of grievous in nature by producing the relevant evidence on record. On the contrary, the accused-appellants, have in their defence, produced Dr. Shanti Mathur (DW-1) in the witness-box who had deposed that he was posted in the Radiology Department of the SMS Hospital, Jaipur on 07.12.79. It is pertinent to mention here that it was only 13 on the application submitted by the accused-appellants before the learned trial court that the original radiologist report was produced by the prosecution which had been sent from the SMS Hospital to SHO, Police Station Bandikui. The said radiological report has been exhibited as (DW-1) on record. Dr. Shanti Mathur has also stated before the learned trial court that the aforesaid report does not bear the number of the X-ray plate. He has also stated that from the report it cannot be said as to whether the injured was admitted in the hospital or not. In view of the fact that the radiological report of Kamlesh is doubtful so as to establish the fact that the injured had sustained a grievous injury; same is also corroborated by the statement of the Medial Jurist (PW-8), and the fact that the radiologist, who had conducted the X-ray of Ku. Kamlesh, had not been produced in the witness-box by the prosecution, the inevitable conclusion is that the prosecution has failed to prove its case for the offence under Section 326 I.P.C. 12. The prosecution had also come with the case that the accused-appellants had committed the offence of outraging the modesty of the injured girls and the trial 14 court has convicted the accused for the offences under Section 354 I.P.C. It would be suffice to say that in the entire material on record, there is no evidence to the effect that the accused-appellants had outraged the modesty of the injured girls. Though, the learned trial court has convicted the accused-appellants for the aforesaid offence but has not given any finding in the impugned judgment so as to hold the accused-appellants guilty for the same. Consequently, the accused-appellants cannot be held liable for the offence under Section 354 I.P.C. 13. It may also be noted that from the evidence on record produced by the prosecution, it is revealed that Yashwant, Suresh and Babulal were duly identified by the prosecution witnesses in the identification parade held on 19.12.79. However, the learned trial court has acquitted the said persons from all the offences alleged against them. On the contrary, the accused Hitlar has been convicted by the learned trial court but he had not been identified by Ku. Kamlesh. The learned trial court has convicted the accused-appellants primarily on the basis that they had been identified by the injured. It is to be 15 noted that in the First Information Report, it has been specifically mentioned that the injured had told the informant that they were not knowing the names of the assailants but they would recognize them when they are brought before them. 14. For the reasons given hereinabove, the impugned judgment passed by the learned court below is not sustainable in law, in so far as the offences under Section 307, 326, 354 and 149 I.P.C are concerned. Consequently, the conviction awarded to the accused- appellants for the said offences deserve to be set aside and it is hereby set aside. However, the conviction and sentence of the accused-appellants is maintained in respect of conviction under Section 324 I.P.C. 15. It is to be noted that so far as the appeal filed by the Sita Ram @ Tiddi S/o Kishan Singh is concerned, the same stands abated as he has already expired in the year 1987. 16. In the result, the appeal is partly allowed. The appellants Ratan Lal, Vimal Garg and Bholu @ Hanuman are acquitted of offences under Sections 307, 354, 148 16 and 149 I.P.C., but they are convicted for the offence under Section 324 I.P.C. The other accused-appellants are acquitted of the offences under Sections 307/149, 354, 148. But the conviction of Prahlad under Section 324 is maintained. In the aforesaid facts and circumstances of the case, the ends of justice would meet, if the accused- appellants Ratan Lal, Vimal Garg, Prahlad and Bholu @ Hanuman are not sent to jail but are released on probation, of good behaviour for a period of one year, on executing a personal bond of rupees 10,000/- and two sureties of the same amount each, submitted within one month. In case, they are found to commit some offence during this period they will be directed to appear and undergo the remaining period of the sentence of 4 years which had been imposed on them. So far as the appellant, Sitaram @ Tiddi is concerned, it is informed that he has been expired in the year, 1987 and as such, his bail stands abated. (RAGHUVENDRA S. RATHORE),J. tikam/- Jr.P.A.