[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CRIMINAL APPEAL No. 276 of 1985 DAULA & ORS. VERSUS STATE OF RAJASTHAN Date of pronouncement of Judgment : March 23, 2010 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI GOPAL KRISHAN VYAS,J. Mr. M.K. GARG & NISHANT BODA, for appellants. Mr. ANIL UPADHYAY, Public Prosecutor. Mr. ASHOK ACHARYA for complainant. JUDGMENT ----- BY THE COURT (PER HON'BLE A.M. KAPADIA, J.) 1.Challenge in this appeal filed under Sec.374 of the Code of Criminal Procedure ('the Code', for short) is to the correctness of the judgment and order dated 13.08.1985 rendered in Sessions Case No.70 of 1983 by the learned Addl. Sessions Judge No.1, Hanumangarh, by which accused-appellants Daula alias Daulat Ram, Mander Singh, Brij Lal, Satya Narayan, Devi Lal and Shokaran ('accused A-1 to A-6', for short) have been convicted for commission of the offence [2] under Sec.302/149 of the Indian Penal Code ('IPC', for short) and sentenced to imprisonment for life. Accused A-3 Brijlal and A-6 Shokaran have also been convicted for the offence under Sec. 148 IPC and sentenced to rigorous imprisonment for two years and accused appellants Daula alias Daulat Ram, Mander Singh Satya Narayan and Devilal,(respectively A-1, A-2, A-4 & 5) have further been convicted for the offence under Sec.147 and each one of them have been sentenced to suffer rigorous imprisonment for one year. All the sentences have been ordered to run concurrently. 2.The prosecution case, as disclosed from the FIR and unfolded during trial is as under: 2.1 On 25.01.1983, Complainant PW1 Balram alongwith his brother Birbal Ram had gone to the field in the morning and at 1:30 PM his brother left the field for village. Complainant and Krishna Ram also followed him. At about 2 O'clock, they saw that his brother was encircled by accused-appellants Daulat Ram, Mangal Singh, Satya Narayan, Brij Lal, Devilal and Shokaran. At that time, complainant and Krishna Ram were behind him about one and a half [3] kila and they saw Shokaran giving a Gandasi blow to Birbal Ram and thereafter all other accused persons beaten him by lathies, who while taking to hospital for treatment died in the way. It was alleged that there was a long enmity between deceased Birbal Ram and accused Shokaran etc. 2.2 On the basis of above information, FIR No.18 of 1983 was registered at Police Station Hanumangarh against accused appellants for the offence under Section 302, 147, 148, 149 IPC and police started investigation. 2.3 During the course of investigation, inquest was held on the dead body of deceased and thereafter it was sent for autopsy. Panchnama of the scene of occurrence was prepared in the presence of Panchas and the statements of witnesses were recorded. Muddamal articles recovered from the accused persons were sent to FSL for chemical examination and on receipt of the Autopsy Report as well as FSL report as sufficient evidence was found against the accused, they were chargesheeted in the Court of [4] learned Addl. Chief Judicial Magistrate, Hanumangarh for commission of offence punishable under Sec.302, 147, 148, 149 IPC. 2.4 As the offence punishable under Section 302 IPC is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions Judge, Sri Ganganagar. 2.5The learned Addl. Sessions Judge No.1, Hanumangarh (‘trial Court’ for short), to whom the case was made over for trial, framed charge against the accused for commission of offence punishable under Sec.147, 148, 302, 302/149 IPC. The charge was read over and explained to the accused to which they pleaded innocence and claimed trial, therefore, they were put to trial. 2.6 To prove the culpability of the accused, the prosecution examined as many as 12 witnesses and also produced number of documents which were exhibited and relied upon . [5] 2.7 The trial Court, thereafter recorded the statements of accused under Sec.313 of the Code. In their further statement, accused denied the case of the prosecution in toto and reiterated that a false case has been filed against them. However, they neither produced any evidence nor examined any witness in support of their defence. They only produced statements of Balram, Krishan Lal and Moman Ram vide Ex.D/1, D/2 & D/3 in support of their case. 2.8 On appreciation, analysis and scrutiny of the evidence on record, trial Court came to the conclusion that homicidal death of the deceased has been proved and the accused formed an unlawful assembly with the intention to commit murder of the deceased because there was previous enmity between accused party and the deceased. 2.9 On the aforesaid finding, the trial Court convicted and sentenced all the accused for the offence of murder to which reference is made in earlier paragraph of the judgment. [6] 3. At the outset, it be stated that accused A-2 Mandar Singh, A-4 Staya Narayan & A-5 Devi Lal have died during the pendency of the appeal, therefore, appeal filed on their behalf has been abated vide order dated 25.01.2010. Therefore, we have to examine the appeal filed by remaining accused, A-1 Daula, A-3 Brij Lal and A-6 Shokaran. 4.Mr. M.K. Garg, learned Advocate for accused-appellant A-1 and Mr. Nishant Boda, learned Advocate for accused appellants A-3 & A-6, submitted that in this case trial Court has relied upon the oral testimony of PW1 Balram and PW2 Krishanlal, the alleged eye witnesses who are relatives of the deceased, therefore, no reliance can be placed on their oral testimony. It is submitted that although independent witnesses were available, but the prosecution opted not to record their statements, which raises serious doubt on the prosecution case. It is also submitted by them that there were 31 injuries on the body of the deceased but all were abrasions, bruises or lacerated wounds and although the deceased had suffered some serious [7] injuries but none of the individual injury was sufficient in the ordinary course of nature to cause death and only if cumulative effect of the injuries is taken then they were sufficient in the ordinary course of nature to cause death, therefore, there was no intention on the part of the accused to commit murder of the deceased, therefore, conviction recorded against accused appellants by impugned judgment deserves to be quashed and set aside by allowing the appeal filed by them and thereby acquitting them of the offence of murder. Alternatively, it is submitted that looking to the injuries though there were 31 injuries but not a single injury was sufficient in the ordinary course of nature to cause death, therefore, there was no intention on the part of the accused to commit murder. According to them, at the most, the intention of the accused was to teach a lesson to the deceased in connection with the previous enmity. According to them, had there been any intention of the accused to commit murder, then one of the accused out of the six accused i.e. accused A-6 Shokaran was having Gandasi with him and even one blow of Gandasi was sufficient [8] to cause death of the deceased but there is no such injury of Gandasi on record. It is further submitted that none of the injuries sustained by the deceased was on vital part of the body, therefore, at the most, the offence does not travel beyond Sec.325/149 IPC. On the aforesaid, premise, it is submitted by learned counsel for the appellants that conviction recorded under Sec.302/149 IPC deserves to be altered into conviction under Sec.325/149 IPC and as they have already undergone sentence of imprisonment for more than two years, therefore, their custodial sentence may be treated as substantive sentence for the offence committed by him. They, therefore, urged to allow the appeal filed by accused A-1, A-3 & A-6 in part altering their conviction from Sec.302/149 IPC to Sec.325/149 IPC by passing appropriate orders in this regard. 5. In counter submissions, learned Public Prosecutor Mr. Anil Upadhyay and Mr. Ashok Acharya, learned Advocate for complainant, have supported the judgment and order of conviction and sentence recorded against accused appellants for commission of [9] offence punishable under Sec.302/149 IPC. According to them, there is no infirmity or illegality in the judgment and order recorded by the trial Court, therefore, no interference is called for in the impugned judgment and order. They, therefore, urged to dismiss the appeal. 6.We have considered the submissions advanced by learned counsel for the parties. We have also perused the impugned judgment and order and the record of the case. 7. The first contention advanced by Mr. M.K. Garg and Mr. Nishant Boda is that PW1 Balram and PW2 Krishanlal are relative witnesses, therefore, no reliance can be placed upon their oral testimony. In this connection, it would be necessary to refer to the evidence of PW1 Balram and PW2 Krishanlal. 8. PW1 Balram, who is the real younger brother of deceased Birbal and an eye witness to the occurrence, has testified in his examination in chief that Shokaran was carrying Gandasi and all other accused were [10] carrying lathis and Shokaran gave a Gandasi blow on the head of the deceased while all other persons gave lathi blows. He further testified that the injured died in way while he was taken to hospital. In cross examination he admitted that though Shokaran gave Gandasi blow after falling but not able to say on which part the blow was given. He also admitted that he had no conversation with Birbal Ram after the incident. 9. Another eye witness PW2 Krishanlal, who is also a relative of deceased, in his examination in chief has testified that he was at his agricultural field and Birbal and Balram had come to their field, who thereafter came to his Dhani and then after taking food, Birbal said that Shyam Singh had told him that on account of dispute about the land of Sindra Singh he was called in Panchayat and having said so, he went from there. Thereafter, he and Balram went towards the village and they were following Birbal and were about one and a half bigha behind him. When Birbal reached near the field of Dhanna Singh, suddenly six persons came from the side of Semnala, who were Shyokaran, Brijlal, Devilal, Daulatram, Satyanarayan and Mandir Singh. [11] Out of them, Shyokaran gave a blow of Gandasi on the head of Birbal. At that time, Brijlal was having Sela and other four accused were having lathies. Shyokaran, who gave blow of Gandasi said that enemy had been caught so kill him and not let him go. Birbal fell down and all the accused started beating him while he was lying down. This witness Krishanlal and Balram then made hue and cry, on which accused Devilal came 5-7 steps towards them carrying a lathi and said that if they came forward, they would also face the same consequence as of Birbal. Then Shyokaran said that the enemy died so they should go and the accused ran away towards Semnala. The witness further testified that deceased Birbal was having enmity with the accused appellants because on account of him the motorcycle of Shyokaran and illegal pistol of Satyanarayan were seized. He also testified that Devilal once he went to the dwellings of harijans and helped them and further stated that fifteen-sixteen years before the incident, Birbal had shot the father of accused Brijlal and for these reasons, the accused had killed Birbal. [12] 10.On reappraisal of the evidence of witnesses PW1 Balram and PW2 Krishanlal, it cannot be said that they have not witnessed the incident because they were at the place of incident and in view of the settled proposition of law that merely because they are the relatives of deceased their testimony cannot be disbelieved and it has to be held that the incident in question took place wherein all the six accused participated, therefore, unlawful assembly is also fully stands proved. 11. Now we have to examine the alternative submission advanced by the learned counsel for the appellants. In this connection, it would be appropriate to refer to the oral testimony of PW6 Dr. Narendra Godara, who has performed the postmortem on the dead body of the deceased and also issued the Postmortem Report which is on record at Ex.P/13. On a conjoint reading of oral testimony of PW6 Dr. Narendra Godara and Postmortem Report Ex.P/13, it is seen that following injuries were found on the dead body of the deceased: 1. Abrasion with bruise, 1” x 3/8” Back Lumber area in middle. [13] 2. Abrasion 3/8” x 1/4” Back thoracic area in middle. 3. Abrasion 1/4” x less than 1/8” Back lumbar area in middle. 4. Bruise 1-1/2” x 1” Back Left Lumbar area. 5. Bruis 3”x1-1/2” Back Left Lumbar area. 6. Bruise 2” x 1” Back lower thoracic area in middle. 7. Lacerated wound 1/2” x 1/2” x 1-1/2” Lateral side Lt. Knee. 8. Lacerated wound 3/8” x 1/4” x 1/2” Lateral side Lt. Knee. 9. Lacerated wound 1/4” x 1/4” x 1-1/2” Lateral side Lt. Knee. 10. Abrasion 1/2” x 3/8” Lateral side Lt. Knee. 11. Abrasion 1” x 3/8” Lateral side Lt. Knee. 12. Abrasion 3/4” x 3/8” Lateral side Lt. Knee. 13. Abrasion 3/4” x 1/2” Lateral side Lt. Knee. 14. Lacerated wound 3/4” x 3/8” x 1/4” Rt. Leg. Ant. Middle 1/3 15 Abrasion 3/4” x 3/8” Rt. Knee ant. 16. Incised wound 2” x 1-1/2” x 1” Lt. Leg Lat. Lower 1/3 near ankle. 17. Lacerated wound 3/4” x 1/4” x 1/4” Lt. Leg medial lower 1/3 near ankle broken piece of bone coming out. 18. Abrasion -3/4” x 3/8” Lt. Lat. Malleolus. 19. Abrasion 3/4” x 3/8” Post part of Lt. Ankle. 20. Abrasion ½” x 1/4” Rt. Forearm post. Lower 1/3 with swelling around it 3” x 2” area. 21. Abrasion 1/2” x 1/8” Rt. Hand dorsal surface. 22. Abrasion 1/2” x 3/8” Rt. Thumb dorsal surface middle. 23. Abrasion 3/4” x 1/2” Rt. Shoulder post. 24. Punctured wound (sharp) 3/4” x 1/2” x 1- 1/2” Lt. Upper arm Lat. Upper 1/3, with 3/4” x 1/4” abrasion along lateral border of wound, muscles underlying wound incised. 25. Bruise 1-1/2” x 2” Lt. Upper arm Lat.upper 1/3 26. Abrasion 1” x 1/4” Lt.upper arm Lat.upper 1/3 27.Bruise 2” x 3/4” Lt.upper arm post middle 1/3 [14] 28. Abrason 1” x 1/2” Lt. Elbow post. 29. Abrasion 1/2” x 1/4” Lt. Elbow post. 30. Abrasion 1/4” x 1/4” Lt. Elbow post. 31. Abrasion 1-1/2 x 1/2” Left forearm post upper 1/3. Besides that, deceased had suffered fractures of lower and left femer, Potella on left side, Tibia & Fibula on left multiple upper end and lower end, and of Left Humerous. As per the opinion of doctor, the cause of death was shock and hemorrhage due to multiple injuries. 12. On reappraisal of the aforesaid evidence, it is seen that though there were 31 injuries on the person of the deceased but most of the injuries were simple in nature. The deceased had also suffered fracture of left femur and patella on left side and also fracture of Tibia and Febula as well as fracture of humurous and there was dislocation of left knee and left ankle but there is no grave injury on any vital part of the body of deceased, as such, the prosecution case that Shokaran inflicted Gandasi blow on the head of the deceased is totally false in view of the fact that there was no incised wound on the head of the deceased. As per the [15] postmortem report, there was only one injury of stabbing which could not be caused either by Gandasi or lathi. 13. In view of the aforesaid evidence, if the entire prosecution story is taken as it is, according to us, the case does not travel beyond Sec.325/149 IPC. 14.Similar question arose before the Hon'ble Supreme Court in the case of Rudrappa Ramappa Jainpur Vs. State of Karnataka (AIR 2004 SC 4148). In the said case, the medical evidence showed that there were seven injuries on the body of the deceased but all were simple and the cause of death was the cumulative effect of all the injuries suffered by the deceased. The doctor had not stated that any one of the injuries was sufficient in the ordinary course of nature to cause death. According to the doctor, death was due to shock and hemorrhage as a result of injuries to vital organs. The medical evidence, therefore, disclosed that though the deceased had suffered serious injuries, none of them by itself was sufficient to cause death in the ordinary course of. In the said fact situation, the [16] Supreme Court has altered the conviction from 302/149 to 326/149 IPC. 15. Applying the law laid down by the Supreme Court in above referred to judgment to the facts of the instant case, we find that in the instant case also there were 31 injuries but all were simple abrasions, bruises or lacerated wounds and though there were fractures but not on vital part of the body caused by hard and blunt object, therefore, according to us, the offence committed by the accused does not travel beyond Sec.325/149 of the IPC. Had there been any intention to cause death even by hard and blunt weapons like lathi, then accused would have inflicted injuries on vital parts of the body i.e. head by using Gandasi, which is a sharp cutting instrument but they have not caused any injury on vital parts of the body like head, chest or abdomen, therefore, there was no intention of the accused to commit murder of the deceased. 16.Seen in the above context, according to us, the finding recorded by the trial Court against accused appellants A-1 Daula alias Daulat Ram, A-3 Brij Lal and A-6 [17] Shokaran for the offence under Sec.302/149 IPC is not based on correct assessment of the evidence, which deserves to be quashed and set aside by altering the conviction of the accused-appellants recorded under Sec.302/149 to 325/149 IPC. So far as conviction and sentence recorded against accused A-3 Brij Lal and A-6 Shokaran for the offence under Sec.148 IPC is concerned, same deserves to be confirmed and maintained and similarly the conviction and sentence recorded against accused appellant A-1 Daula alias Daulat Ram also deserves to be confirmed and maintained. 17.For the foregoing reasons, appeal filed by accused appellants A-1 Daula alias Daulat Ram, A-3 Brij Lal and A-6 Shokaran succeeds in part and accordingly it is partly allowed and resultantly the conviction and sentence recorded against accused A-1, A-3 & A-6 for the offence under Sec.302/149 IPC is altered to Sec.325/149 IPC and they are sentenced to the period already undergone by them which is more than two years as accused appellants A-1 Daula alias Daulat Ram has suffered imprisonment for 2 years, 11 months, 7 [18] days, A-3 Brij Lal for 2 years, 11 months, 6 days, and A-6 Shokaran for 2 years, 5 months, 6 days. So far as conviction and sentence recorded against accused A-3 & A-6 for the offence under Sec.148 IPC is concerned, the same is confirmed and maintained and so far as conviction and sentence recorded against accused A-1 Daula for the offence under Sec.147 IPC is concerned same is also confirmed and maintained. All the sentences shall run concurrently. 18.The accused appellants A-1 Daula alias Daulat Ram, A- 3 Brij Lal and A-6 Shokaran are on bail, therefore, their bail bonds stand cancelled and sureties are discharged. (GOPAL KRISHAN VYAS),J. ( A.M. KAPADIA ),J. jpa/