D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1)D.B. Criminal Jail Appeal No.396/82 Sheo Pal & anr. vs. The State of Raj. (2)D.B.Criminal Appeal No.367/1982 Mst. Prem & ors. vs. The State of Raj. against the judgment dated 9.9.1982 passed by the learned Additional Sessions Judge,Nagaur camp Didwana in Sessions Case No.13/82. Date of Judgment: August 28th, 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. SANGEET LODHA,J. Mr. Doongar Singh ) Mr. Manish Shishodia) for the appellants. Mr. J.P.S. Choudhary, P.P. for the State. BY THE COURT ( Per Hon'ble Mr. Tatia,J): D.B. Criminal Jail Appeal No.396/82 has been sent to this Court by accused victims Sheo Pal and Mahaveer through jail authorities to challenge the judgment and order of D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 2 conviction and sentence dated 9.9.1982 passed by the court of Addl. Sessions Judge, Nagaur camp Didwana in Sessions Case No.13/82, by which the appellant Sheo Pal has been convicted under Section 302/34 and 323, IPC and has been sentenced to undergo life imprisonment under Section 302/34, IPC and a fine of Rs.100/- has been imposed and under Section 323, IPC, appellant Sheo Pal has been sentenced to one year's rigorous imprisonment. Appellant Mahaveer has been convicted under Section 302/34, IPC and has been sentenced to undergo life imprisonment and a fine of Rs.100/- has been imposed upon him. One more accused Smt. Prem who is wife of appellant Sheo Pal has been convicted by the same judgment for offence under Section 302, IPC and she has been sentenced to undergo life imprisonment with fine of Rs.100/-. Appellants Smt. Prem and above two appellants Sheo Pal and Mahaveer jointly preferred D.B.Criminal Appeal No.367/1982 through their counsel to challenge the same judgment and order of conviction and D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 3 sentence referred above. Brief facts of the case are that on 17.2.1982 in mid-night at quarter to two, Trilok Chand submitted a written report to the SHO, Police Station, Baradwa (Ex.P.7) and informed the police that on 16.2.1982, he returned to his village Kayamsar at 6 p.m. after distributing the Dak and at that time, his uncle Sheo Pal, his aunty Smt. Prem and uncle's daughter Santosh and uncle's son-in-law Mahaveer were sitting in their house and were talking. He, the complainant, his father and his father's uncle Rughaji and Rughaji's son Sanwar Mal were sitting in complainant's house. The complainant's father Bhanwar Lal, who was residing at village Losal but he came to meet complainant on that day only. Seeing complainant's father Bhanwar Lal in the chowk of complainant, accused Sheo Pal, Mahaveer, Santosh and Smt. Prem w/o Sheo Pal attacked upon his father Bhanwar Lal. Smt. Prem has kulhari in her hand and Sheo Pal, Mahaveer and Santosh had lathis with them. Because of several injuries by kulhari on the head D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 4 of Bhanwar Lal, he fell down. The complainant himself tried to save his father then complainant's uncle accused Sheo Pal gave beating to complainant also. In the effort of saving the father of the complainant from the hands of the accused- appellants, he hit accused with lathi because of which the accused suffered one or two injuries. However, all the accused believing that Bhanwar Lal has died, ran from the spot. The complainant took the victim Bhanwar Lal to village Losal by bus but they were advised to take the victim Bhanwar Lal to bigger hospital at Sikar, upon which from one Madan Lal, a vehicle was got arranged but during this period, the victim Bhanwar Lal died. The complainant stated that Bhanwar Lal and Sheo Pal had dispute with respect to one open land and, therefore, because of this enmity, accused killed victim Bhanwar Lal. On the basis of above report (Ex.P.7), a case under Section 302, 120B and 34, IPC was registered after recording formal FIR No.6/82 (Ex.P.10). During investigation, site was inspected and site map D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 5 (Ex.P.15) and site report (Ex.P.5) were prepared. The sample soil and blood stained soil were seized and their memos were prepared. The seizure memo for the dead-body of deceased Bhanwar Lal (Ex.P.2) was prepared. The injured complainant Trilok Chand's blood stained shirt was also seized and seizure memo Ex.P.3 was prepared. Accused Smt. Prem, Sheo Pal and Mahaveer were arrested and their arrest memos Ex.P.6, Ex.P.11 and Ex.P.12 were prepared. Accused Mahaveer gave information under Section 27, Evidence Act (Ex.P.12), in pursuance of which lathis were recovered and recovery memo Ex.P.13 was prepared. Accused Smt. Prem gave information under Section 27, Evidence Act vide Ex.P.16, in pursuance of which weapon of offence Kulhari was recovered and recovery memo Ex.P.14 was prepared. The post-mortem was conducted by Dr. Ram Singh (PW-5) and the post-mortem report Ex.P.4 was prepared. There were total nine injuries on the body of deceased Bhanwar Lal which includes four incised wounds, one lacerated wound, two bruises and two abrasions. As per D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 6 the medical opinion, the injuries no.1,2 and 3 alone as well as because of their cumulative effect, were sufficient to cause the death of the victim. The victim Trilok Chand was examined by Dr.Amrit Lal (PW-9) and found four injuries on the body of the injured complainant Trilok Chand. After framing the charge against the accused persons for offences referred above, during trial, 15 witnesses were examined by the prosecution and relevant documents were exhibited. The statements of accused were recorded under Section 313, Cr.P.C. Accused-appellant Sheo Pal stated that Rugha Das, Sanwar Mal and his brother Bhanwar Lal were fighting. He (Sheo Pal ) was called by his sister, upon which he went to separate them. Bhanwar Lal was beaten by Rugha Das and Sanwar Mal and only he went there to separate them where he (Sheo Pal) was also beaten. They were fighting for share in Gawadi(open plot). Accused-appellant Mahaveer gave his statement under Section 313, Cr.P.C and denied taking part in D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 7 the above fight and stated that he did not beat(any body). He went(come) to take her sister. He also stated that he also went with Sheo Pal for reporting the matter to the police. Smt. Prem in her statement under Section 313, Cr.P.C. denied all the allegations. In defence, the accused produced witness DW-1 Smt. Saraswati, the elder lady of common family of accused and the victim as well as witness DW-2 Lichhama, sister of appellant Sheo Pal. The trial court convicted all the three accused appellants; Smt. Prem under Section 302, IPC whereas Sheo Pal and Mahaveer have been convicted under Section 302 read with Section 34, IPC. Sheo Pal has been convicted for offence under Section 323, IPC in addition to charge for offence under Section 302/34, IPC. Hence these appeals have been preferred by the appellants. The learned counsel for the appellants vehemently submitted that Ex.P.7 is a fabricated document and has been D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 8 brought into existence long after the occurrence of the incident and in fact Ex.P.7 cannot be said to be the FIR because of the reason that the prosecution witnesses proved that Ex.P.7 is the last report in the series of various reports which were written at different times as well as at different places. According to PW-2 Sanwar Mal, alleged eye-witness, PW-8 Madan Lal went to report the incident to the police. PW- 8 Madan Lal in his statement stated that to lodge report, he went with Trilok Chand at Police Station Baradwa and stated that the report was written at bus stand of Losal. PW-2 Sanwar Mal in his statement, stated that the report was written at hospital in his presence and he stated that Trilok Chand wrote only 2-3 letters in the report and who wrote rest of the report, he has no knowledge. The complainant in his statement, admitted that he was not literate and, therefore, he orally stated the report to the SHO who went on writing the report as he dictated. Trilok Chand contradicted prosecution's other witness by saying that it is wrong to say D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 9 that the report was written at Losal village. He also stated that he did not get the report written on way to the police station. Thereafter, he contradicted his statement by saying that at that time the SHO was not present in the police station. He was on leave and the report was written by Munshi. According to the learned counsel for the appellants, therefore, Ex.P.7 is a concocted document and the prosecution deliberately suppressed the true facts. The report Ex.P.7 is concocted, is further proved from the statement of the investigating officer PW-11 Ratan Lal who contradicted the statement of complainant Trilok Chand by saying that Trilok Chand brought the written report in the police station from out side and the report was not written in the police station. The learned counsel for the appellants vehemently submitted that the conduct of the complainant clearly shows that the time was taken for obtaining the opinion before lodging the FIR and all false pleas of moving here and there, D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 10 to Losal and coming back from there, before lodging FIR, have been taken by the complainant and his witnesses cover up the delay in lodging the FIR. The learned counsel for the appellants submitted that the incident occurred in the village Kayamsar. Bhanwar Lal injured at village Kayamsar, then the report could have been lodged at the Police Station, Bardwa, whereas instead of giving report forthwith to the Police Station, Baradwa, the complainant says that they went to the village Losal which is far away from the Police Station, Baradwa and, thereafter, after the death of Bhanwar Lal, instead of giving report at Losal they again came back to the Police Station, Baradwa. This all has been stated only to explain the delay in lodging the FIR, which in fact was caused due to the reason that the complainant consulted to concoct the story before lodging the FIR. In view of the above reasons, the learned counsel for the appellants submitted that Hon'ble the Supreme Court in the case of Marudanal Augusti v. State of Kerala ( 1980 SCC (Cri) D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 11 985) held that on finding that the FIR is document fabricated document and was got into existence long after occurrence then the entire prosecution case collapses. The learned counsel for the appellants further vehemently submitted that Trilok Chand (PW-7) is not a reliable witness. He in his cross-examination, stated that the accused inflicted injury upon him from the edge side of Kulhari thrice but because of his clothes, the Kulhari slipped and, therefore, no blood came out from his body by the said three blows from Kulhari over him. This statement of the witness Trilok Chand clearly exposes him and from this statement, it is clear that he can give false statement to any extent. In cross-examination, he stated that he covered his father and, therefore, his father deceased did not suffer any injury from lathi. Contrary to it, as per medical evidence produced by the prosecution, Trilok Chand's father Bhanwar Lal had injuries by blunt weapon. Therefore, also the prosecution witness PW-7 Trilok Chand cannot be relied upon, D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 12 as he fabricated the FIR and gave false statement in the court. The learned counsel for the appellants vehemently submitted that the real cause for the dispute has been suppressed by the prosecution and almost all alleged eye- witnesses produced by the prosecution, admitted that the incident occurred just near the kitchen of the accused and it is proved from site report also but the prosecution did not disclose why the victim Bhanwar Lal went to the place of accused. The dispute was between Rugha Das and Bhanwar Lal. Rugha Das and Sanwar Mal both have become prosecution witnesses PW-1 and PW-2. Rugha Das and Sanwar Mal also had dispute with the appellants and, therefore, joined hands with complainant. PW-2 Sanwar Mal, in his examination-in-chief, itself admitted that Bhanwar Lal had dispute with the appellant Sheo Pal. Bhanwar Lal was a drunkard person and used to quarrel with villagers and this fact has been admitted by the prosecution witness (PW-2) Sanwar Mal in cross- D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 13 examination. From the evidence of the prosecution itself, it is clear that the prosecution deliberately did not disclose the reason for fight and further did not disclose the dispute of Rugha Das and Sanwar Mal with the appellants and also did not disclose the dispute between Bhanwar Lal and Rugha Das and Sanwar Mal. The prosecution also suppressed the material fact of Bhanwar Lal's going to the house of the complainant. In view of the above, the entire story of the prosecution is proved to be a concocted story. The appellants except Mahaveer have not denied their presence on spot. As per the appellant, appellant Sheo Pal went to intervene in the fight between Bhanwar Lal and Rugha Das and Sanwar Mal and the complainant Trilok Chand levelled false allegations against the appellants. It is also stated that the incident occurred on spur of moment and, therefore, there could not have been any common intention of the accused-appellants for committing any offence, therefore, the appellants Sheo Pal and Mahaveer have been D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 14 wrongly convicted under Section 302, IPC with the aid of Section 34, IPC. From the statements of the prosecution witnesses itself, it is clear that Mahaveer came after the incident occurred and, therefore, he could not have occasion to premeditate for committing any offence with any other accused. Mahaveer has not over acted. The allegation of inflicting injuries by Kulhari, is upon only appellant Smt. Prem, who has been convicted under Section 302, IPC. The death has not been caused by the injuries caused by Sheo Pal, therefore, the conviction of appellant Sheo Pal and Mahaveer under Section 302/34, IPC deserves to be set aside. The learned counsel for the appellants also submitted that neither Bhanwar Lal nor Trilok Chand were residing in the village since last about 20 years and were settled at the village Losal which is about 40 kms. away from the place of incident. Trilok Chand was coming to the village Kayamsar only because he was in service and used to distribute the Dak. The prosecution did not disclose what happened just before D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 15 the alleged incident so that the appellant, brother of victim could have killed the victim. There is no allegation that before this incident, there was any quarrel much less to any fight between the appellants and Bhanwar Lal or with Trilok Chand, then why the appellants will inflict injuries upon Bhanwar Lal or Trilok Chand. The learned counsel for the appellants also submitted that the independent witness, Smt. Saraswati(DW-1) elder lady of family, having equal relation with the accused and the victim, gave correct narration of the events how the incident occurred. She clearly stated that Bhanwar Lal was given beating by her husband's younger brother Rugha Das and his son Sanwar Mal by lathis and Sheo Pal went there to intervene in between that fight. Then Sheo Pal was given beating by Bhanwar Lal. Madan Lal also came to intervene, who came there to take his sister from the village. It is true that subsequent to the incident, DW-1 Smt. Saraswati lost her eyes but at the time of incident, she had her vision. The another D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 16 witness DW-2 Lichhama is sister in relation of Bhanwar Lal as well as Sheo Pal. She clearly stated that her brother Bhanwar Lal and his son Trilok Chand came there with lathis and started fight with her uncle Rugha Das. The reason for dispute was demand of way by Bhanwar Lal through guwadi which was denied by witness's uncle obviously Rugha Das. The witness Lichhama(DW-2) called Sheo Pal to intervene only. The defence evidence is also equally important evidence and looking to the totality of the facts of the case, it is clear that the prosecution did not give the true and correct account of the incident and only on this ground alone, the entire story of the prosecution deserves to be rejected. In the alternative, in fact the aggressor was the victim and in exercise of right of private defence, the injuries were inflicted by the appellants. The learned public prosecution submitted that the complainant and the witnesses were resident of a very small village. The complainant was illiterate and could have signed only. He got the FIR written and submitted in the Police D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 17 Station, Baradwa at 1.45 a.m. on 17.2.1982 for the incident which occurred in the evening of 16.2.1982. The presence of Sheo Pal at the time of occurrence is admitted fact, as he admitted his presence in his statement recorded under Section 313, Cr.P.C. Complete and correct statements have been given in support of the prosecution by the witnesses PW- 1 Rugha Das, PW-2 Sanwar Mal and PW-7 Trilok Chand are the eye-witnesses. PW-8 Madan Lal is brother-in-law of Bhanwar Lal, who provided his bus and took the victim Bhanwar Lal to the Losal Hospital where the doctor told them to take the victim to a bigger hospital at Sikar. At Losal, the victim Bhanwar Lal was alive and he died before he could be taken to Sikar hospital. From cross-examination, the credibility of the witness has not been shattered or effected in any manner. The oral evidence has been fully corroborated by the medical evidence, documentary as well as oral statements of PW-5 Dr. Ram Singh and PW-9 Dr. Amrit Lal Soni. The complainant and his family members are poor villagers and gave their D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 18 statements in court about where the FIR was written as per their memory and minor inconsistencies in the statements of these three witnesses referred above, about where the FIR was written, is absolutely insignificant and cannot affect the prosecution story. It is also submitted that the victim did not die on spot, so the family members of the victim first rushed to the hospital and not to the police station to report. Looking to the close relation as well as the fact that the hospital was not available nearby in the same village, the family members of the victim took the victim to the hospital for treatment and that was natural behaviour of the family members of the victim. PW-5 Dr. Ram Singh examined the body of deceased Bhanwar Lal and he clearly stated that Bhanwar Lal was brought in the hospital by Madan Lal and Ratan Lal. Bhanwar Lal died at 11.45 p.m. on 16.2.1982. He noticed nine injuries on the body of deceased Bhanwar Lal. He found the injuries as cause for death of the victim and the injuries were sufficient to cause death in the ordinary course, therefore, the oral D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 19 evidence is fully corroborated by the medical evidence. The learned public prosecutor submitted that the defence witnesses are highly interested witnesses and they gave statements only to save their closest relatives who are the accused. We considered the submissions of the learned counsel for the appellants and perused the record. The first objection of the learned counsel for the appellants is that the FIR was submitted after inordinate delay and that time was consumed only to fabricate the story and secondly, to cover up that delay in lodging FIR, the plea has been taken by the prosecution witnesses which is false and improbable. The facts reveal that as per the prosecution, the incident occurred at 6.30 p.m. in a small village, Kayamsar and the victim Bhanwar Lal was injured and not died on the spot. His injured son Trilok Chand (PW-7) stated that he and his father were taken to the hospital in the bus of Madan Lal, brother-in-law of deceased who brought the bus from the D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 20 village Losal. It will be relevant to mention here that Losal is the village where deceased Bhanwar Lal was residing and he came to village Kayamsar only to visit his son (PW-7 Trilok Chand) and that the nearest hospital was at Losal. As per statement of PW-5 Ram Singh, the victim was brought in hospital at 11.30 p.m. on 16.2.1982. His condition was serious and in the opinion of PW-5 Dr. Ram Singh, the victim Bhanwar Lal was not in good condition so that he could have been moved to Sikar and, therefore, he gave emergency treatment to victim Bhanwar Lal and, thereafter, advised him to take Bhanwar Lal to the higher hospital at Sikar. In 15 minutes, the victim Bhanwar Lal died in the hospital. The report Ex.P.7 was submitted in the night of 16th and 17th February, 1982, at 1.45 a.m.. The formal FIR Ex.P.10 was registered and it was sent to the court at Deedwana at 2.45 p.m. In the facts referred above, there was no delay in lodging the FIR. Since the victim Bhanwar Lal was seriously injured and, therefore, he could have been taken to the hospital first and his son D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 21 could have remained with his father and that was the natural behaviour of the complainant Trilok Chand. The place Kayamsar is very small village and Losal was nearer place where the doctor was available. When the victim is seriously ill then even if the matter is not reported to the police station for few hours, simply because the police station was nearer than the hospital, then because of this reason, the conduct of the complainant cannot be doubted. Therefore, we do not find any force in the submission of the learned counsel for the appellants that there was delay in lodging the FIR or to cover up the time consumed for concocting the story, the complainant and the prosecution witnesses gave false plea that the victim was taken to Losal before reporting the matter to the police station. The next contention of the learned counsel for the appellants is that the prosecution witnesses gave different statements about the writing and lodging the report. After perusing the statements of the witnesses PW-1 Rugha Das, D.B.Criminal Jail Appeal No.396/1982 Sheo Pal & anr. v. The State of Raj. & connected appeal. 22 PW-2 Sanwar Mal, PW-7 Trilok Chand and PW-8