1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT ************* S.B.CRIMINAL APPEAL NO. 301/85 (Ram Charan & Ors. vs. The State of Rajasthan) Date of Judgment: 25th of April, 2008. PRESENTS. HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. R.N. Sharma, for the appellants. Mr. B.S. Chhaba, Public Prosecutor. This criminal appeal, under Section 374 (2) Cr.P.C., has been filed by the accused-appellants against the judgment dated 15.06.85 passed by Additional Sessions Judge, Baran, in Sessions Case No. 10/83, whereby he has convicted them as under:- S.No Accused Conviction Sentence 1 Ram Charan u/S 148 IPC 6 months' R.I. and a fine of Rs. 500/- in default of which to further undergo 1 ½ R.I. u/S 326 IPC 3 years' R.I. and a fine of Rs. 3,000/- in default of which to further undergo 9 months' R.I. u/S 324/149 IPC 6 months' R.I. and a fine of Rs. 500/- in default of which to further undergo 1 month's R.I. u/S 323/149 IPC 3 months' R.I and a fine of Rs. 100/- in default of which to further undergo 15 days R.I. 2 S.No Accused Conviction Sentence 2 Balram u/S 148 IPC 6 months' R.I. and a fine of Rs. 500/- in default of which to further undergo 1½ R.I. u/S 326/149 IPC 1½ years' R.I. and a fine of Rs. 1,500/- in default of which to further undergo 4 months' R.I. u/S 324 IPC 6 months' R.I. and a fine of Rs. 500/- in default of which to further undergo 1 month's R.I. u/S 323/149 IPC 3 months' R.I and a fine of Rs. 100/- in default of which to further undergo 15 days R.I. 3 Hazari Lal u/S 148 IPC 6 months' R.I. and a fine of Rs. 500/- in default of which to further undergo 1 ½ R.I. u/S 326/149 IPC 1½ years' R.I. and a fine of Rs. 1,500/- in default of which to further undergo 4 months' R.I. u/S 324 IPC 6 months' R.I. and a fine of Rs. 500/- in default of which to further undergo 1 month's R.I. u/S 323/149 IPC 3 months' R.I and a fine of Rs. 100/- in default of which to further undergo 15 days R.I. 4 Ram Gopal u/S 326/149 IPC 1½ years' R.I. and a fine of Rs. 1,500/- in default of which to further undergo 4 months' R.I. u/S 147 IPC 4 months' R.I. and a fine of Rs. 400/- in default of which to further undergo 1 month's R.I. u/S 324/149 IPC 6 months' R.I. and a fine of Rs. 500/- in default of which to further undergo 1 month's R.I. 5 Jagram u/S 326/149 IPC 1½ years' R.I. and a fine of Rs. 1,500/- in default of which to further undergo 4 months' R.I. u/S 147 IPC 4 months' R.I. and a fine of Rs. 400/- in default of which to further undergo 1 month's R.I. u/S 324/149 IPC 6 months' R.I. and a fine of Rs. 500/- in default of which to further undergo 1 month's R.I. 6 Anandi Lal u/S 326/149 IPC 1½ years' R.I. and a fine of Rs. 1,500/- in default of which to further undergo 4 months' R.I. u/S 147 IPC 4 months' R.I. and a fine of Rs. 400/- in default of which to further undergo 1 month's R.I. u/S 324/149 IPC 6 months' R.I. and a fine of Rs. 500/- in default of which to further undergo 1 month's R.I. 3 2. The instant case arises out a report lodged by Ram Gopal S/o Kishan Lal on 23.09.82 at 1.00 pm., at Police Station, Baran. In the report, it is stated that at about 11 am, on 23.09.82, while the informant was at the bus-stand for going to the school, Hiralal had asked him as to why he picked up quarrel with his uncle. It is further stated in the report that Jagram, the accused took a stick from Hiralal Gujjar and assaulted the informant resulting in the injury on the finger of his left hand. Accused Ram Charan is said to have given beating with his fist. Manna, Suraj and Prakash came at the scene of occurrence and they rescued the informant, who later went away. The accused persons also went away to their homes. Thereafter, the accused Ram Charan, Jagram, Balram, Hazari Lal and Ram Gopal came to the house of the informant, armed with weapons like 'Dhariya' and swords. At that time, Chaturbhuj tried to pacify the accused so that the dispute comes to an end. It is stated that Ram Charan inflicted a blow. Balram inflicted a sword blow on the elbow of the right hand of the informant. Ram Gopal inflicted a 'Lathi' blow on the elbow of the uncle of the informant. Hazari Lal inflicted 4 a 'Gandasi' blow on Shaupal. Anandi Lal also inflicted a 'Lathi' blow. In the meanwhile, Nathulal Sarpanch and Prabhu Lal came at the place of occurrence and on their intervention, the informant was rescued. On the aforesaid report, an F.I.R. came to be registered (303/82) at the Police Station, Baran for the offence under Sections 147, 148, 149 and 307 I.P.C. 3. The accused Ram Charan also lodged a report with regard to the same incident at Police Station, Baran. He had stated in the report that the complainant-party came to his field with weapons and belaboured him along with Balram and Smt. Bhuri with 'Lathis', 'Gandasies', 'Dhariya' and 'Kuntis'. In the said incident, the accused persons sustained injuries by sharp edged weapons as well as blunt weapons. That report came to be registered (304/82) for the offence under Sections 324, 323 and 147 I.P.C. 4. After lodging of the report by the informant in the present case, the police investigated the matter. During the course of investigation, evidence was collected by the agency which included the statements 5 of the witnesses, injury reports etc. On the conclusion of the investigation, a challan came to be filed against the accused-appellants for the offences under Sections 307, 326, 324, 323 and 149 I.P.C. The learned Magistrate having noted that the case was triable by Sessions, he committed the case to the Sessions Court which came to be tried by the Additional Sessions Judge, Baran. 5. The learned trial court framed charges against the accused-appellants on 08.03.84 for the offences under Section 307, 326, 323/149 and 147 I.P.C. The accused denied the charges and claimed for trial. The prosecution had produced 8 witnesses in support of its case. The prosecution also submitted 9 documents which were duly exhibited. Thereafter, the statements of the accused persons were recorded under Section 313 Cr.P.C. They had produced 8 documents in their defence. On completion of the trial, the learned trial court acquitted the accused persons for the offence under Section 307 I.P.C. However, the learned trial court convicted and sentenced the accused-appellants for the offence aforementioned. 6 6. The learned counsel for the appellants has submitted that the prosecution story, in this case, is totally false and concocted. He has further submitted that it was the complainant side who had picked up the quarrel. The accused party was severely beaten by the complainants and a cross-report had been lodged against them. After investigation, a charge-sheet had also been filed against the complainant-party. He has also submitted that the prosecution had not at all explained the injuries of the accused persons, which are much more in number than sustained by members of complainant-party. Therefore, the learned counsel has submitted that accused-appellants have not committed any offence and they deserve to be acquitted. 7. On the other hand, the learned Public prosecutor has supported the judgment passed by the learned trial court. He has further submitted that the learned trial court had properly considered the evidence on record and had rightly arrived at the findings, on the basis of which the accused persons have been held guilty of the aforesaid offences. 7 8. As per the prosecution's own case, the incident had taken place on 23.02.82 when the complainant Ram Gopal had met the accused Jagram and Ram Charan at the bus-stand. Jagram had asked the complainant as to why he took up quarrel with Hazari Lal. Thereafter, Jagram picked up a lathi of Hiralal, who was sitting besides him, and gave a blow which resulted in the injury on the finger of left hand as well as on the back. Thereafter, Ram Charan pushed the complainant on the ground and gave some fist blows. Further, the case of the prosecution is that at that time Manna Lal and Surya Prakash intervened and the scuffle came to an end. Thereafter, a second incident took place when the accused returned to his village. The complainant Ram Gopal narrated the facts, regarding the incident at the bus-stand, to his brother Chaturbhuj. The accused Jagram and Ram Charan had also come to the village. Thereafter, Chaturbhuj had asked Ram Charan as to why he gave beating to Ram Gopal. Further, the case of the prosecution is that at that time Ram Charan gave a 'Dhariya' blow on the head of Chaturbhuj as a result of which he fell down. 8 Hiralal is said to have reached the place of incident and at that time the other accused persons, namely Ram Gopal S/o Kishan Lal, Hazari Lal, Balram and Anandi Lal also came there. It is to be noted that in the first incident which occurred at the bus-stand, undisputedly only two accused persons, namely Jagram and Ram Charan are alleged to be involved. Jagram is said to have given a lathi blow to the complainant Ram Gopal. The matter was pacified by Manna Lal and Surya Prakash. Thereafter, the prosecution case is that Ram Gopal had informed his brother Chaturbhuj, who had then asked Ram Charan in the village as to why he gave beating to the complainant. In other words, it was Chaturbhuj, a member of complainant-party, who had taken the initiative in the village by asking the accused Ram Charan in relation to the first incident. However, the prosecution story has been given a turn that Ram Charan had inflicted a 'Dhariya' blow on the head of Chaturbhuj. However, the rest of the accused persons are also said to have come at the place of incident. Subsequently, the prosecution story has proceeded to name the rest of the accused persons and to assign 9 them different weapons and the injuries, caused to different persons of the complainant-party. The aforesaid facts and circumstances definitely reveals that the prosecution story, which starts from the incident at the bus-stand, is not the one which could happen in the normal course that in the second incident at the village where, on the information received from Ram Gopal, Chaturbhuj had questioned Ram Charan but the prosecution case that the accused gave beating does not appear to be prima facie true. Taking into consideration the over all facts and circumstances of the case mentioned above, it appears on the face of it that the real origin of the fight between the parties has been withheld by the prosecution. 9. Apart from it, from the circumstances that the accused Jagram and Ram Charan had quarreled with the complainant Ram Gopal at the bus-stand about which he informed his brother Chaturbhuj, on his return to the village, it appears as a normal consequence that the complainant-party bore the grudge and they acted in revenge at the village. This has been further supported from the fact that the 10 prosecution's own witnesses, namely Ram Gopal (PW-2) and Dhanna Lal (PW-6) had admitted about the injuries sustained by the accused persons. It is also noteworthy that the accused persons had been severely beaten and the number of injuries sustained by them is much more than the one sustained by the complainant-party. These circumstances also go to show that it was the complainant-party who took up the quarrel in the village when accused Jagram and Ram Charan had returned and they were the aggressors. 10. Yet another important aspect of the present case is that when the accused persons were given beating by the complainant-party, a cross-report had also come to be registered. The prosecution had chosen to produce certain witnesses during the trial but those were the very persons who were accused in the cross- case. This further raises a doubt in the prosecution case and it appears that they have not come out with the true facts about the incident in the present case. 11. The learned trial court has also erred in holding that the accused-appellants had formed an 11 unlawful assembly and convicted them with the aid of Section 149 I.P.C. There is no doubt about the fact that so far as the incident at the bus-stand is concerned there were only two persons, namely Jagram and Ram Charan. Even in respect of the second incident which took place in the village, it is the case of the prosecution itself that Chaturbhuj had first questioned Ram Charan about the incident at the bus-stand, resulting in the scuffle between them. The prosecution case further is that later on the other accused, namely Ram Gopal, Hazari Lal, Balram and Anandi Lal came at the place of incident. Therefore in such of situation, there is no question of an unlawful assembly having been formed by the accused persons and as such the conviction under Section 149 I.P.C. is bad in law. Similarly, no offence in respect of Sections 147 and 148 I.P.C. is made out against the accused-appellants. It is pertinent to mention here that the learned trial court had to some extent, considered the argument raised on behalf of the accused persons but had ultimately rejected the same on a flimsy ground that the witnesses who had named less than five persons to have participated in the incident did not 12 depose that the remaining persons had not participated in the incident. The relevant finding of the learned trial court reads as under: "िजन व् यिक् तयों ने चार का नाम िलया है उनकी साआ य में यह तथ् य नहीं आया है िक बाकी ने घटना में भाग नहीं िलया बिल् क िकसी ूकार वे अपने बयानों में उस सीमा तक ही िववरण दे सके हैं।" Suffice it to say, that it was the burden of the prosecution to have proved the fact that five persons had taken part in the incident and if the prosecution witnesses have failed to name the requisite number of persons for committing the offence then inference against the prosecution needs to be drawn. Absence of the specific evidence to the effect that the other accused had not participated in the incident would not discharge the burden of the prosecution to establish the case in respect of the offence by unlawful assembly because it has to prove that five or more persons had the common object. 12. As submitted hereinabove, the incident had initially taken place at the bus-stand wherein two accused, namely Jagram and Ram Charan were 13 present. Subsequently, the prosecution case is that Chaturbhuj, member of the complainant-party, had asked the accused persons about the earlier incident when they reached the village. But thereafter, the prosecution story has taken a turn that the members of the accused-party came and gave beating to the complainant. A bare look to the injuries sustained by the accused-appellants, the number and their nature, reveals a different story. The injury report of Ram Gopal S/o Roop Chand, Ram Charan, Balram and Smt. Bhairi are as under: 1. Ram Gopal Injury Size Injured part of body Nature Weapon Sign X- ray Remark Incised wound 1½”x½”x¼” Over forehead right side 2” above Rt. eyebrow Simple Sharp Incised cut (Spindle shaped) 1”x¼”x¼” Over left shoulder joint back 1” below the Achromia forearm Simple Sharp Incised wound ½”x¼”x¼” Over Rt. Lumber legion at mid axillary line legion Simple Sharp Incised cut ½”x1/8”x1/8 ” Over right Index Finger at firets of proximal & middle phalanx Simple Sharp Lacerated wound ¾”x1/8”x1/8” Overt Rt finger middle phalanx dorsal aspect Simple Blunt Tajoining mark Ram Gopal over Rt. Finger Nil Age injury fresh nears 6- 8 hrs. old as exotted blood & low ellery blooding 14 2. Ram Charan Injury Size Injured part of body Nature Weapon Sign X- ray Remark Incised wound (obliquity) 2”x¼”x¼” Over Scalp left parietal region 4” above left ear Simple Sharp Incised wound 1½”x¼” Bony deep Brisement forced no fracture Over Rt. Parietal region 4” above Rt. ear Simple Sharp Incised cut ½”x¼”x1/8” Over left index finger forearm phalanx Dorsal aspect Simple Sharp Loss of Distal phalanx of left hand of thumbs Nil Age of injury nears 6-8 hrs. old baling to the ellated blood & blooding on elcaing 3. Balram Injury Size Injured part of body Natur e Weapon Sign X-ray Remark Incised wound ½”x¼”x¼” Over Scalp left parietal region 4” above left ear Simple Sharp Contusion Swelling ½”x½” Near left ear back over mastoid process Simple Blunt Incised cut ¼”x¼”x1/8” Over Rt. Palm near base of index finger Simple Sharp Small pox scars over face Nil Age of injury nears 6-8 hrs. old 4. Bhairi Bai Injury Size Injured part of body Nature Weapon Sign X-ray Remark Contusion Swelling & Recration 1”x1” over ¼”x¼”x1/8” Over left palm left aspect 1½” below wrist joint Simple Blunt Pam & leuision 1”x1” oera Over left arm 2” below shoulder joint laterally Simple Blunt ½” ovals ear over right calf in the cautery medially Nil Age of injury nears 6-8 hrs. back The aforesaid injuries sustained by the members of the accused-party reveal that they are much more in number; inflicted by blunt as well as 15 sharp edged weapons and are sustained on the vital parts of the body also. This circumstance further fortifies the fact that in the second incident which took place in the village, the complainant-party had given severe beating to the accused-appellants so much so that Ram Charan himself sustained as many as three injuries and Ram Gopal S/o Roop Chand had sustained five injuries, whereas the complainant Ram Gopal had sustained only two injuries and Chaturbhuj had sustained only one injury on the head. This further makes the prosecution case doubtful as it has totally failed to explain the injuries sustained by the accused- party although their own witnesses have admitted the said injuries and the same has been proved by the medical evidence on record. 13. The accused-appellants had not only denied the incident as alleged by the prosecution but had also disclosed the true facts about the incident, according to which it had taken place on a 'Medh'. Surprisingly, the learned trial court had discarded the defence version about the incident having taken place on the 'Medh' wherein the accused sustained injuries at the hands of 16 the complainant-party but while considering the non- explanation of the prosecution in respect of the injuries sustained by the accused-appellants, it took the view that the same had been sustained in the incident on the 'Medh'. Furthermore, the learned trial court had erred in rejecting the contention raised by the accused persons about their injuries on the ground that because there was no evidence to show as to when, how and by whom these injuries had been caused. The principle of law is well settled that if, from the facts and circumstances as well as the material on record of the trial court, it is prima facie shown that the accused persons have sustained injuries then the burden lies with the prosecution to explain them. It is not for the accused-appellants to explain their injuries and their authors. The learned trial court has held:- "क् योंिक अिभयुक् तगण की ओर से चोटें तो अवँ य बताई गई है, िकन् तु ये चोटें कब, िकस Ʈारा, िकस हिथयार से पहंचाई ु गई- इसकी कोई साआ य नहीं है। और यिद इस ूकार की साआ य सामान् य िः थितयों में अनावँ यक भी मानी जावे तब भी इस मामले में इसका एक िवशेष ूभाव है क् योंिक यहॉं अिभयुक् तगण पक्ष की ओर से ही यह कहा गया है िक पक्षकारान् में इस ूकरण के आरोप सम् बन् धी झगडे के अलावा मेंड पर पर भी उसी िदन झगडा हुआ था ऐसी िः थित में 17 अिभयुक् तगण के चोटें मेंड पर हुए झगडे में आयी थी या इस झगडे में आयी थी " Such an approach adopted by the learned trial court is contrary to law and in fact it ought to have drawn inference against the prosecution for not having explained the injuries sustained by the accused persons. 14. For the reasons, mentioned hereinabove, I am of the considered view that the prosecution has suppressed the origin of the fight between the parties. It was the complainant-party who had taken the initiation resulting in the incident which took place in the village soon after Chaturbhuj had questioned Ram Charan about the incident at the bus-stand and non- explanation of injuries sustained by the accused persons which have been admitted by the prosecution witnesses themselves for which an adverse inference should be drawn, leads to the inevitable conclusion that the prosecution has failed to prove its case beyond reasonable doubt. There are reasons more than one, as mentioned above, which creates a doubt on the 18 prosecution story and the prosecution case has not been established its case in accordance to the settled principle of law. 15. Consequently, the appeal filed by the accused-appellants has merit and the same is hereby allowed. The impugned order dated 15.06.85 passed by the learned court below is quashed and set aside. The accused-appellants are discharged of all the charges levelled against them. They are on bail and their bail bonds stand discharged. (RAGHUVENDRA S. RATHORE),J. tikam/- Jr.P.A.