1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: D.B. CRIMINAL APPEAL NO. 1348/2003 (Kalu & Ors. Vs. The State of Rajasthan) D.B. CRIMINAL APPEAL AGAINST THE JUDGMENT DATED 22.10.2003 PASSED BY THE LEARNED ADDL. SESSIONS JUDGE (FAST TRACK), PALI, CAMP JAITARAN IN SESSIONS CASE NO.15/2003. DATE OF JUDGMENT : 11th Sept., 2008 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Shambhoo Singh for the accused-appellants. Mr. V.R. Mehta, Public Prosecutor. BY THE COURT : (PER HON'BLE THANVI, J.) 1. This criminal appeal is directed against the judgment dated 22.10.2003 passed by the learned Additional Sessions Judge (Fast Track), Pali, Camp Jaitaran, whereby, all the four accused appellants namely Kalu, Ladu, Babu and Moda were convicted for offence under Section 302/34 IPC and 2. sentenced to life imprisonment and to pay a fine of Rs.2,000/-, in default of payment of fine to further undergo six months' R.I. All the four accused appellants were also convicted for offence under Section 307/34 IPC and sentenced to 10 years' R.I. and to pay a fine of Rs.2,000/-, in default of payment of fine to further undergo six months' R.I., for offence under Section 323 IPC to undergo one year's R.I. and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo two months' R.I., for offence under Section 323/34 IPC to undergo one year's R.I. and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo two months R.I. and for offence under Section 447 IPC to undergo two months' R.I. and to pay a fine of Rs.200/-, in default of payment of fine to further undergo seven days' R.I. All the sentences were ordered to run concurrently. 2. Facts leading to this appeal are that on 29.05.2001, Kishna son of Heera, by Caste Gurjar filed a report at Amritkaur Hospital, Beawar to S.H.O., Police Station Kalu that there is a dispute between his family and accused appellants with regard to the land, for which, cases are 3. pending, and on account of this, accused appellants Kalu, Moda, Ladu and Babu, residents of Khedawala came in the field at 1 P.M. for cultivation on the tractor of Khinvraj, being driven by Meva Gurjar. Upon resistant by his brothers Chandra and Narayan, they inflicted blows on the head and other parts of their body. Accused appellant Kalu was having 'Kunt' in his hand and rest of the accused appellants were having lathis in their hands. Kalu inflicted 'Kunt' blow on the head of Chandra Ram and also on the head of Narayan. Moda Ram inflicted lathi blows on the legs of Narayan. Accused appellants Ladu and Babu also inflicted blows with lathi. On hearing the cries, neighbours Dayal, Rukma, Chandra and Narayani came and intervened. The incident was told to him by his wife Rukma and upon this he took Chandra and Narayan at Beawar Hospital. Upon this report, a case under Sections 447, 341, 323, 324, 307/34 IPC was registered and investigation was commenced. Injured Narayan died during treatment. After investigation, all the four accused appellants were challaned under Sections 302, 307, 341, 323 read with Section 34 and Section 447 IPC. Accused appellants were charged accordingly, to which they pleaded not guilty. Prosecution 4. examined 28 witnesses. Statements of the accused appellants were recorded under Section 313 Cr.P.C. They produced three witnesses in defence. After hearing the arguments, the learned trial Judge convicted the accused appellants as above. 3. Learned counsel for the accused appellants has assailed the judgment of the learned trial court on the ground that the dispute was with regard to the cultivation of the land, which was belonging to the accused appellants, and it is alleged that the lathis were used in the incident, and accused appellant Kalu has also received injuries, which the learned trial court has ignored, and whatever the act has been committed, that was in right of their private defence. Learned counsel further submits that there was no intention on the part of the accused appellants to kill Narayan. If at all the prosecution story as it is, if believed, it cannot be a case of more than Section 323 IPC or at the most under Section 304 Part -II IPC, for which the accused appellants have already remained in custody for more than five and half years except accused appellant Ladu, who has remained in custody for more than three and half years. In 5. support of his contention, learned counsel has placed reliance on a decision of the Hon'ble Supreme Court in Nasiruddin Khan & Ors. Vs. State of Bhiar, reported in 2008 AIR SCW 5398. 4. Per contra, learned Public Prosecutor has supported the judgment of the learned trial court. 5. It is an admitted position that the incident took place on account of the dispute over the land, for which, the litigation is pending between the parties. Out of 28 witnesses examined by the prosecution, Rukma PW-5 and Chandra Ram son of Heeraji PW-6 are injured. Rest of the eye witnesses are Ram Lal PW-8, Chandra Ram PW-9, son of Raju Ram, Dayal PW-13, Meva Ram PW-18 and Smt. Narayani Devi PW-21, out of which, Meva Ram PW-18 has turned hostile. 6. Rukma PW-5 has stated that when she went for cutting 'rizka' (grass), accused appellants came on the site on the tractor and when Chandra and Narayan objected, they started beating. Accused appellant Kalu inflicted 'Kunt' 6. blow on the head of Chandra and accused appellant Moda inflicted blows to Narayan, who died two days later on. When she intervened, accused also inflicted injuries to her. Similar is the statement of another injured eye witness Chandra Ram PW-6, who is the brother of deceased Narayan. In his statement, he has stated that all the accused appellants inflicted injuries on his head, back side and other parts of the body. Moda inflicted head blow and cut the legs of his brother Narayan, who died later on. Eye- witness Ram Lal PW-8 has stated that upon hearing cry of Rukmani on 29.5.2000, he went to the adjoining field and saw Chandra, Dayal, Narayani and Girdhari cultivating the field. Accused appellants Kalu, Moda, Ladu and Babu came there and inflicted lathi blows on the person of Narayan and Chandra. Accused appellant Kalu was having lathi with iron pole and Rukmani intervened. According to him, due to the field dispute, accused appellants inflicted injuries on the person of Narayan and Chandra. Chandra Ram PW-9, son of Raju Ram and Dayal PW-13 have also supported the testimony of the other eye witnesses as discussed above. According to them, the field was belonging to Narayan, but accused appellants entered into the field for cultivation, 7. where, they were objected by Narayan and Chandra Ram, upon which, accused appellants inflicted lathi blows on the person of Narayan and Chandra Ram. Similar is the statement of wife of deceased – Narayan namely Smt. Narayani Devi PW-21. Meva Ram PW-18 is the hostile witness. 7. From the cross examination made with these witnesses, it cannot be said that there is any inconsistency or contradiction in their testimony except with regard to the 'Kunt', which is said to be in the hand of accused appellant Kalu. Rukma PW-5 has stated in her examination-in-chief that injury was inflicted by 'Kunt' and later on she said that there was an iron pole. Rest of the witnesses have stated that accused appellant Kalu was having 'Kunt stick' with him. This discrepancy is not so material so as to throw out the case of the prosecution. The injuries on the person of Rukma PW-5 and Chandra Ram PW-6 have been supported by the medical jurist. The injury report of Rukma PW-5 is Ex.P.14 and injury reports of Chandra PW-6 are Exs.P.17 and P.24. Dr.Surendra Kumar Sharma PW-22 is the Junior Specialist, who examined the injuries of Narayan vide 8. Ex.P.23 and Chandra vide Ex.P.24. Dr. Laxmikant Pareek PW-17 has examined the injuries of Rukma vide Ex.P.14. The post mortem report of Narayan which is Ex.P.6 has been proved by Dr.Ashutosh Srivastava PW-7, who conducted the post mortem on 31.5.2001 and found 12 anti mortem injuries. According to him, injuries No.8 to 10 were sufficient in the ordinary course of nature to cause death as all the three injuries were on the vital part i.e. head, which were equivalent to the size of bone and blood was cotted below these injuries. 8. Thus, from the above statements, it is clear that all the accused appellants inflicted injuries. Accused appellant Kalu inflicted injury on the person of Narayan and Chandra Ram. Moda also inflicted lathi blow on Narayan and rest of the two accused appellants Ladu and Babu have also inflicted injuries on the person of Narayan, Chandra Ram and Rukma. The injuries were inflicted by lathis. All these lathis have been recovered vide Ex.P.18 to 21 in pursuance to the information furnished by the four accused appellants vide Ex.P.34 to Ex.P.37. That apart as per the FSL report Ex.P.38, the human blood was found on safa, kameej, dhoti 9. and lathi, which were recovered vide Ex.P.10 to Ex.P.11. Accordingly, the learned trial court has rightly came to the conclusion that all the four accused appellants entered into the field, where, deceased Narayan and Chandra Ram were cultivating the field and the accused appellants started cultivation with the help of tractor and upon objection by Narayan and Chandra Ram, they inflicted injuries on the person of Narayan, Chandra Ram and Rukma, whereby, Narayan died on account of multiple injuries. This clearly indicates the motive for causing death being the dispute over the field, for which, a litigation is pending. Of-course, during this incident, accused appellant Kalu might have also received the injuries as reveals from the injury report of Kalu produced in defence as Ex.D.5., but these injuries on the person of accused Kalu cannot bring the case of the accused appellants that they acted in the right of their private defence because this right does not empower a person to kill another in exercise of right of private defence, however, there might not have intention to kill. 9. In the present case, from the evidence brought on record, we find substance in the contention of the learned 10. counsel for the accused appellants that the act of accused appellants in inflicting injuries on the person of Narayan, who died later on was not intended to cause death but inflicting blows on the person of Narayan with lathi by both accused appellants Kalu and Moda and also cutting legs of Narayan, particularly the injuries on the vital part being bone deep injuries, which are injuries nos.8 to 10 in the post mortem report Ex.P.6., accused appellants Kalu and others were having knowledge that these injuries may likely to cause death. When the knowledge that the injuries may likely to cause death is established, the case falls under Section 304 Part-II IPC instead of Section 302 or Section 304 Part-I IPC. In the cited case of Nasiruddin Khan (supra), the Hon'ble Supreme Court while affirmed the view of the learned trial court as well as of the High Court held that when there is a dispute over agricultural land leading to incident on refusal by informant to stop fixing poles in field, the act of the accused appellant in inflicting head injury with spears and lathis can be termed into the act, punishable under Section 304 Part-II IPC. The facts of the present case are squarely covered with the cited one. 11. 10. Accordingly, while altering the conviction of the accused appellants from Section 302/34 IPC, we deem it just and proper to convict them under Section 304 Part-II IPC. Since, Chandra Ram and Rukma have suffered injuries and the injuries on the person of Chandra Ram were also dangerous to life, the accused appellants have rightly been held guilty for offence under Sections 307/34 IPC along with Sections 323/34 and 447 IPC by entering into the field and causing injuries to Chandra Ram and Rukma. However, they are acquitted under Section 323 IPC for which there was neither any charge and no need to connect them in view of the fact that all of the four accused appellants have already been convicted under Section 323 read with Section 34 IPC. This part of the order seems to be erroneous. 11. Consequently, we allow the appeal in part. While maintaining the conviction of accused appellants under Sections 307/34, 323/34 and 447 IPC, we alter their conviction from Section 302/34 IPC to Section 304 Part-II read with Section 34 IPC. Since, accused appellants Kalu and Babu have remained in custody for more than five years and six months i.e. from 1.6.2001 to 15.12.2006, 12. accused appellant Moda is still in custody since more than seven years and accused appellant Ladu has remained in custody for more than three and half years, and he is 75 years of age, we deem it just and proper that accused appellants are sentenced to the period already undergone. Accordingly, they are sentenced to the period already undergone. However, the sentence of fine is increased, and it is ordered that each of the accused appellant shall pay fine of Rs.10,000/- for offence under Section 304 Part-II read with Section 34 IPC, in default of payment of fine to under go six months' imprisonment, Rs.5000/- for offence under Section 307/34 IPC, in default of payment of fine to undergo three months' imprisonment, Rs.3000/- for offence under Section 323/34 IPC, in default of payment of fine to undergo two months' imprisonment and Rs.2000/- for offence under Section 447 IPC, in default of payment of fine to undergo one month's imprisonment. 50% of the amount of fine deposited by the accused appellants shall be paid to Chandra Ram and Rukma i.e. Rs.20,000/- to each of the injured. The amount of fine shall be deposited within a period of 30 days from today, else, the accused appellants shall serve out the sentence in default of payment of fine. 13. Accused appellant Moda S/o Ladu is in jail, he shall be released forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. (A.M. KAPADIA), J. ms rathore