1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CRIMINAL APPEAL No. 321 of 1986 MAHENDRA KUMAR & ORS. V/S STATE Date of Judgment : 8.1.2010 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI C M TOTLA,J. Mr. DIGVIJAY SINGH JASOL and Mr. DOONGAR SINGH, for the appellant Mr. ANIL UPADHYAY, PP, for the respondent Mr. ASHOK UPADHYAY for Mr. SG OJA, for the complainant. BY THE COURT : (Per Hon'ble Gupta J.) The three appellants Mahendra Kumar, Brij Lal and Rai Singh seek to challenge the judgment of the learned Sessions Judge, Sriganganagar dated 15.7.1986 passed in Sessions Case No.89/85 convicting each of them for the offences under Section 302, 302 read with Section 34, 323, 323 read with Section 34 IPC and sentencing each of them for the offence under Section 302 with imprisonment for life, also sentencing each of them for the offence under Section 302/34 IPC for imprisonment for life and under Section 323 sentencing to 6 months' rigorous imprisonment and under Section 323/34 also sentencing to 6 months' rigorous imprisonment. All substantive sentences were ordered to run concurrently. The brief facts are, that one Balram P.W.5 lodged a 2 First Information Report on 12.11.1985 at 11.30 in the night at Police Station Sadulshahar being Ex.P/9, to the effect, that their agricultural land is situated in Chak 27 MJD Rohi Chapawali and near that is the land of their father's elder brother Sheochand. It is alleged that a government way and water course passes through the informant's land, while according to the Murabbabandi the way and water course should pass through the land of Sheochand, on that count there was enmity between the parties. With this it is alleged that on that day, he along with his brother Madan Lal and Hari Ram had returned after irrigating their fields, and after taking dinner the informant was going to the house of Mohan Lal, who happens to be informant's uncle, through the street, which street passes through front of house of Sheochand, at that time outside the house of Sheochand, the three accused persons, being sons of Sheochand were standing there at about 8 P.M., Mahendra was armed with Kassiya, while Rai Singh and Brij Lal were having Lathis. Seeing the informant all the three challenged that the informant troubles them day in and day out on the ground of way and water course, and therefore he would not be spared today. He was stopped from proceeding ahead, Brij Lal inflicted a Lathi blow, which landed on his left ear, Rai Singh inflicted another Lathi blow, which landed near his left eye. Then Mahendra inflicted Kassi blow, which hit his left lip, whereupon he raised a cry, which attracted his brothers Hari Ram and Madan Lal. It is then alleged that Mahendra with intention to kill Hari Ram inflicted a Kassi blow on his head, and simultaneously Rai Singh and Brij Lal also inflicted Lathi blows on the head of Hari Ram, as a result of which Hari Ram fell down. After falling, Mahendra inflicted yet another Kassi blow, and Brij Lal inflicted Lathi blow, on the head of Hari Ram. The cry attracted 3 their father Mani Ram also, on whose challenge, the accused persons ran away. Hari Ram's injuries were bleeding, and he had become unconscious. Thereafter he was put on a cot, and in a tractor carried to Sadulshahar hospital, and after leaving the injured at hospital, he has come to lodge the report. In the night, Hari Ram died, therefore, the case registered on the report for offences under Section 307 and 341/34 was converted into one under Section 302 also. The injuries of Balram were examined, the post mortem examination of Hari Ram was got conducted, site was inspected, and after completing necessary investigation challan was filed against the three accused persons in the Court of learned Upper Munsiff and Judicial Magistrate, Sriganganagar, where-from the case was committed. The learned trial Court framed charges under Section 302 and 302/34, so also for the offence under Section 323 and 323/34 IPC. The accused persons obviously denied the charges. In trial the prosecution examined 7 witnesses, and tendered in evidence 24 documents, while the accused persons in their statement under Section 313 stated, that there is enmity between the parties on the ground of way and water course, on which count Balram and Hari Ram entered their house and gave beating, and a false story has been cooked up. It was also given out, that the day of incident was Diwali, at about 7.30 in the evening Mahendra had gone to the house of Rajendra and Mahendra son of Sahi Ram, while Brij Lal and Rai Singh had gone to the other house received from their maternal grandfather, for lighting Diwali lamps. At about 8 PM Balram and Hari Ram came to their house, entered the Angan duly armed with Lathis, were under the influence of alcohol, and started hurling abuses, they were asked to desist by the mother of the accused persons, being 4 Tulsi, whereupon Balram inflicted injury on the head of Tulsi, who fell down. Accused Mahendra, who was in the house, intervened. Then Balram and Hari Ram inflicted injuries on his head also. Thereupon Mahendra picked up Lathi available in the house and exercising the right of private defence of himself and his mother, he started inflicting injuries on Balram and Hari Ram. Then Balram and Hari Ram went out along with Lathis, Hari Ram fell down. Then he was taken away along with Lathi. It was at about quarter past 8, that Rajendra came, to whom the entire episode was narrated, Rajendra arranged for tractor trolley and carried Mahendra and Tulsi along with Prithvi son of Sahi Ram, another Prithvi son of Dakar Ram to Sadulshahar, and when they reached near Railway crossing, the SHO along with Balram's party met them, and they were taken to police station, their mother, another Prithvi and Hari Ram were taken to hospital. When the incident was narrated to police people, they did not lend any ear, rather at about 3 PM, except Mahendra other persons were left away and from the village, they apprehended Balram (sic Brij Lal) and Rai Singh, and false case has been prepared. In defence the accused persons examined Tulsi, their mother as D.W.1, and also tendered in evidence three documents, being Ex.D/1 to D/3. After completing the trial, the learned trial Court convicted and sentenced the accused persons as above. Assailing the impugned judgment, learned counsel for the appellant submitted, that the entire prosecution case is full of doubts, rather is a concocted story, sought to be supported by distorted evidence. In the first place it was submitted, that of course there is enmity between the parties on the ground of way and water course, but then, since the water course is already passing through the field of the victim party 5 and it is the victim party, who desires that the way and water course should pass through the field of accused persons, it cannot be said that this enmity could provide any motive to the accused persons to commit the incident. In the next place it is submitted that the evidence of two eye-witnesses being P.W.5 and P.W.6 Balram and Madan Lal cannot be believed, for the reason, that their evidence does not tally with the medical evidence in regard to the number and location of injuries, and the discrepancy appearing has a material bearing on the controversy, inasmuch as, according to both the witnesses more than one injury is caused by the accused Mahendra with Kassi on the head of Hari Ram, while there is only one sharp edged injury on the head of Hari Ram, which too is simple one, and if read with the evidence of P.W.1 Dr. Somprakash, it was injury No.1 only which was fatal, while that injury No.1 is a lacerated wound, and in all also there is only one sharp edged injury even on the person of the deceased, as such, apart from the fact that their evidence cannot be believed, it cannot be said with any certainty, as to how injury No.1 was received by the deceased Hari Ram. Another submission made is, that as is clear from the evidence of P.W.1 and 7, that accused appellant Mahendra and his mother Tulsi had also received injuries as noticed in Ex.D/2 and D/1 respectively, and which were received in the same incident. P.W.1 has proved the reports Ex.D/1 and D/2 and has given the duration of injuries, while P.W.7 has clearly stated, that these injuries were received by the victims, Mahendra and Tulsi in the same incident, as against which the prosecution party has clearly denied any injuries having been received by these two persons, so much so that the two eye-witnesses P.W.5 and 6 have gone to the extent of stating that they did not see Tulsi there. Thus, the origin of the incident has not been correctly 6 projected by the prosecution, and it probablises the incident to have occurred in the manner as suggested by the defence, and substantiated by the evidence of D.W.1 Tulsi. The next submission made is, that a combined reading of Ex.P/9 and the statement of P.W.5 Balram would show, that they are making attempts to shift the place of incident, inasmuch as, a reading of Ex.P/9 shows, that the informant means to convey that the incident occurred outside the house of the accused persons, where they were standing, while on the other hand according to P.W.5 the incident is described to have occurred outside the House of Nandram, which is at a distance. Obviously there is nothing to show, that the accused persons had any information or knowledge about the victims likely to come at that place, so as to be standing duly armed with weapons, waiting for them to commit the incident. With this it was also submitted, that as is clear from post mortem report Ex.P/1 and the statement of the doctor P.W.1 that there was alcohol smelling out from the stomach of deceased Hari Ram, while according to P.W.5 immediately on receiving injury, Hari Ram became unconscious, and on suggestion of the persons gathered there the deceased was administered one cup of liquor, while according to P.W.6 Madan Lal, the deceased was administered a glass of water, which is categorically denied by P.W.5, and it is required to be comprehended, that a person lying unconscious cannot be made to consume alcohol, so as to allow it to travel upto the stomach. This aspect has been highlighted to contend, that this probablises the defence's version, about the two persons having come to their house under influence of alcohol, and to have committed the incident. It was also submitted that Mani Ram, who was the father of the victims, who is also said to have come, and on whose arrivals, the accused persons went away, has not 7 been examined by the prosecution in the Court, though according to P.W.7, the I.O., his statements were recorded during investigation. In substance, it was sought to be contended, that the incident was covered by the right of private defence of the accused Mahendra and his mother Tulsi. Thus, no offence is made out. On the other hand, learned Public Prosecutor supported the impugned judgment, by placing implicit reliance on the evidence of eye-witnesses P.W.5 and 6, out of which P.W.5 is the injured eye-witness. It was also submitted, that there was motive to commit the incident. Then the story propounded by the defence was criticised, by contending, that it cannot be believed, that they met the SHO on the way to Sadulshahar and the SHO declined to receive the report, as the copy of the report produced by the defence as Ex.D/3, shows that a private complaint was lodged as late as on 22nd November 1985, while if the things were as alleged, the private complaint would have been filed immediately, and not after more than a week. We have heard learned counsel, have considered the submissions and have gone through the record. To start with it may be observed here, that as appears from the record, that the parties are close relations, inasmuch as, the three accused persons are brothers, being sons of Sheochand, while the victim Balram and Hari Ram so also the witness Madan Lal are also real brothers, being sons of Mani Ram. It has also come on record that Mani Ram and Sheochand, the fathers of two sides are the real brothers, whose wives are also real sisters. Thus, both the parties are very closely related to 8 each other. It has also come in the evidence of D.W.1 Tulsi, that her father had bequeathed all his property to Tulsi only. Then P.W.5 Balram has also admitted that the name of the mother of the accused persons is Tulsi, and her father is Het Ram, whose house is in their village itself and that Het Ram had bequeathed all his property to Tulsi and died some 3-4 years ago. He has also admitted that the land and house of Het Ram are in possession of the accused persons, which is at a distance of about 200 paces. We simply rest at mentioning this only. Coming to the merits of the matter, since the case rests on the evidence of the two witnesses, P.W.5 and P.W.6, who have come up as eye-witnesses, and out of them P.W.5 is injured witness, we would better like to examine their evidence, of- course in conjunction with the other material available on record, including the evidence of Doctor P.W.1, the post mortem report Ex.P/1, and the statement of the I.O. P.W.7, and the injury reports of accused Mahendra and Tulsi Ex.D/2 and D/1 respectively. According to P.W.5 Balram, who has lodged the report, he has deposed in line with the FIR, however, he has stated that he was going to the house of his uncle Mohan Lal and when he reached near the house of Nandram Pandit, there, the three accused persons were standing armed with Kassiya and Lathi and when the witness wanted to go away, the three persons challenged him, that day in and day out he troubles them on the ground of way and water course, therefore, he would not be spared. With this, he was encircled, whereupon he raised a cry, then Brij Lal, coming in his front inflicted lathi blow on his left ear, Rai Singh inflicted lathi blow near his eye, Mahendra aimed a 9 Kassiya blow, which was attempted to be prevented by him by raising hand and, therefore, it landed on his left lip. On his raising cry, his brother Hari Ram came, who was followed by Madan Lal. Then Mahendra inflicted one Kassiya blow on head of Hari Ram. Then Brij Lal and Rai Singh inflicted lathi blows on Hari Ram, as a result of which he fell down, then 10 paces behind, his father Mani Ram came, who challenged, whereupon the accused went away towards their house. This is the narration of the incident by Balram. It may be observed here, that from reading of this, it transpires, that the witness received three injuries, one on the left ear, other near left eye and third on the left lip, and the three injuries have been attributed to three accused persons. Likewise, Mahendra is also said to have received three injuries, one on the head by Kassiya, attributed to Mahendra, and two more injuries by lathi are attributed to each of the other two accused persons. Then in cross- examination, he has admitted, that the father of the accused persons is Sheochand, who is real brother of his father and that his mother and the mother of the accused persons are real sisters, Rajendra is the fourth brother of the accused persons, who is aged about 22-23 years. He has also stated that apart from the question of way and water course there is no other dispute between the parties. The ground of enmity between the parties has been explained by this witness, by stating that the water course and way passes through their land, while according to government it should be on the land of accused persons, and this is resulting into their suffering loss of 16 biswas of land. They requested accused persons in this regard, but the accused persons are not agreeable. Then regarding location of the house, he has deposed that the houses of the two parties are at a distance of 30-40 paces, and in between is the house of 10 Nandram Pandit only. Then he has deposed that Mohan Lal is not the real uncle, but is the uncle in family. According to him the street to reach the house of Mohan Lal adjoins the door of the house of Sheochand. Then he has maintained that when he reached near the house of Nandram he saw the accused persons standing armed with weapons, and then to come in line with the FIR, he has tried to state, that they were standing outside their own gate, and when he reached near the house of Nandram, the accused persons challenged him and encircled him outside the house of Nandram, which is at a distance of about 30-34 feet and injuries were inflicted at that place. Then he was confronted with First Report Ex.P.9, wherein it is not mentioned that the injuries were inflicted outside the house of Nandram, to which the explanation given was to be not remembering as to whether it was given out in the report or not. Then he has maintained that at that time he was not having any weapon, he raised a cry immediately on his being challenged by the accused persons, according to him Madan Lal and Hari Ram also were not having any weapons, many persons had collected on the spot. Then to test his reliability certain questions were asked, and he deposed ignorance as to who brought the cot, however, he is categoric to the effect that immediately on receiving injuries Hari Ram fell unconscious, whereupon somebody told to administer liquor to him, thereupon one cup of liquor was administered to Hari Ram, however no water was administered to him. He has admitted that in the FIR it is not mentioned that Hari Ram was administered liquor. He denied the suggestion about Hari Ram having already consumed alcohol before incident, and has also denied the suggestion that liquor cannot be administered to an unconscious person. He has admitted that the name of the mother of the accused persons is Tulsi and her father is Het Ram, whose house 11 is in their village itself and that Het Ram had bequeathed all his property to Tulsi and died some 3-4 years ago. He has also admitted that the land and house of Het Ram are in possession of the accused persons, which is at a distance of about 200 paces. Then he has maintained that he did not see any injuries on Tulsi, rather she did not even come there. He has also stated that Mahendra was also not having any injuries, more so he could not receive because the victim party was not having any weapons. He has admitted that when the site plan was prepared, Police had gone to the house of accused, also but the witness did not enter that house. Then he has denied the suggestion about the Police having taken into possession blood stained earth from the house of accused persons. He has also denied the suggestion about Rajendra, accused Mahendra, Tulsi, Mohan Lal, Prithvi etc. having met them near Railway Level Crossing. He has also denied the suggestion about Police having left away Rajendra at 3 PM, and thereafter to have written the report of the witness. He has also denied the suggestion about Police having come to the witness' house in connection with the report of Rajendra. He has also denied the suggestion about the witness and Hari Ram having gone to the house of accused Mahendra after consuming liquor, because the accused persons are not prepared to leave land for way and water course, and at the house of the accused, to have inflicted injury on the head of mother, so also on the head of accused Mahendra, at which time Mahendra picked up the stick, and in the right of self defence inflicted injuries, on account of which Hari Ram fell down and the witness also received injuries. He has also denied the suggestion about the incident having taken place in the house of accused persons. This is the entire evidence of P.W.5. 12 Then we come to the evidence of P.W.6 Madan Lal, he has stated to be the cousin of the accused persons, as the accused persons are the sons of his father's elder brother. Then he has stated that at the time of incident Balram had left for going to the house of his uncle Mohan Lal, while the witness and his brother Hari Ram were at the house. At that time, they heard cry of Balram, thereupon Hari Ram rushed, and the witness followed. When they reached near the house of Nandram, Mahendra, Brij Lal and Rai Singh were holding Balram, Mahendra was armed with Kassiya, while other two were armed with lathis, and all three were giving beating to Balram. The witness did not go near, therefore witness cannot say the sequence of infliction of injuries. He further deposed that he asked the accused to stop, however, Mahendra inflicted the Kassiya blow on the head of Hari Ram, then simultaneously Brij Lal and Rai Singh also inflicted lathi injuries on Hari Ram, as a result of which Hari Ram fell down, and after falling, Mahendra inflicted another Kassiya blow on the head of Hari Ram, and Brij Lal also inflicted one lathi blow on the head of Hari Ram. Then Mani Ram came and shouted, whereupon accused persons went away. Then victim was taken to Sadulshahar hospital. He has also stated that it is on account of enmity on the basis of way and water course, that the incident has been committed. We may pause here and recapitulate, that according to this witness, Mahendra had inflicted two kassiya injuries on the head of Hari Ram, one while Hari Ram was standing, other after he had fallen down, and Brij Lal has also inflicted one lathi injury on the head. Thus, two sharp edged weapon injuries and one blunt weapon injury were caused on the head of Hari Ram, while other two Brij Lal and Rai Singh had also inflicted lathi injury simultaneously. In cross-examination he has stated that first kassiya blow inflicted by Mahendra had 13 hit the back side of the head of Hari Ram, and the second injury inflicted by Mahendra with kassiya hit in the middle of the head. He has admitted that Hari Ram became unconscious at that time itself. He was not given any water to drink, though after the other people had collected, some water was put in the mouth of Hari Ram. Then he has stated that the Police had come at about 1-1.30 PM on the next day, and had prepared the site plan in his presence, and in presence of Balram. Police remained in village about 2 hours and recorded the statement of this witness after preparing the site plan. He has maintained that he did not see Tulsi, the mother of the accused on the site, and has also maintained that he, Mani Ram, Hari Ram and Balram were also not having any weapons with them. He also did not see any injuries on Mahendra. He has denied the suggestion about his not being on the site, and giving wrong statements, on account of the victim being brother. This is the entire evidence of P.W.6. A look