1 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T. (1) HEERA V. THE STATE OF RAJASHAN. (2) VACHANA (3) SANWALA S. B. CRIMINAL APPEAL NO.551/2007, against the judgment dated 18.7.2007, passed by Shri C.L.Khatri, RHJS, Additional Sessions Judge (Fast Track), Jalore, Camp Bhinmal, in Sessions Case No.68/06 (26/06) DATE OF JUDLGMENT ::: 30.07.2009 HON'BLE MR. JUSTICE C. M. TOTLA Mr. R.K.Bishnoi, for Appellant (s). Mr. Panney Singh, PP, for the State. Mr. S.G.Ozha, for Complainant. BY THE COURT : Appellants ( Heera, Vachana and Sanwala) are convicted and sentenced as per judgment dated 18.7.07 as under :- u/s.307/34 IPC : Five years' R.I. And fine of Rs.2000/-, in default of payment of fine, six months' RI to each accused appellants. u/s.326/34 IPC : Three years' RI and fine of Rs.1000/- in default of payment of fine, three months additional RI to each appellants. u/s. 325/34 IPC : Two years' RI and fine of Rs.500/-, in 2 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) default of payment of fine, one months additional RI to each appellants. u/s.323/34 IPC : Two months' RI to each appellants. u/s.341 IPC : One month SI to each appellants. All the sentences ordered to run concurrently. Challenged is conviction and sentence. Heard learned counsel for the appellants and learned Public Prosecutor. Brief alleged events, leading to appellants' prosecution are like that on 19.11.95 at about 3 O'clock, Mesaram PW 1 lodged FIR Ex,P1, stating that on 29.10.95 at about 10-11 am, when his father Karna Ram (PW 3) was coming from their field “Nimbrawala”, then at a little distance from field, Vashna, Heera and Sanwala sons of Jiva, stopping him, inflicted severe injuries of axe and lathi – Heera gave a blow of axe from behind at head, Vashna of reverse spear (Dhariya) at ribs on right of chest – Sanwala of lathi at back of father, who crying, fell down. Hearing cries of father, complainant Mesaram along with their workman Vagaram runningly reached than all these (accused-appellants) ran away and father with injuries on head and ribs fell down – became unconscious – father beaten because of old enmity and dispute regarding field. Father Kana Ram taken in tractor of Darga to village Khara, from where in jeep to Sanchore – where doctors of Mehta hospital advised to take him to higher centre, so taken to Ahmedabad civil hospital, where is under treatment. In 3 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) the FIR, also is mentioned that at Ahmedabad, also personnels of police station, Sahibag had taken statements of Karna Ram and father continuously under treatment also undergone operation so report is being lodged now. On this report, was registered FIR No.104/95 Ex.P2 for offences of Sections 341, 323/34 IPC. In course of investigation, ASI IO PW 10 Khima Ram (i) inspecting place of occurrence, prepared memos Ex.P3 and site plan Ex.P4, (ii) arrested appellant Heera on 14.12.05 at 6.45 am and on his information and at his instance on same day, recovered axe from his Dhani – memos respectively are Exs. P7, P16 and P10, (iii) arrested appellant Vachana on 14.12.95 – as per his information and at his instance on same day, recovered Dhariya from fencing of his Dahni – memos are respectively are Exs. P8, P17 and P11, (iv) arrested appellant Sanwla on 14.12.95 and as per his information and at his instance on same day, recovered lathi from his hut - memos respectively are 9, 18 and 12. (v) Blood stained clothes Angrakhi, Baniyan and Safa presented on 11.11.95 seized and sealed preparing memo Ex.P-19. Injuries of appellant Kanaram examined by doctor on 28.11.95 and x-ray on 29.11.95 – reports and plates are Exs. P13, P14 and P15 and opinion regarding injury (asked by investigating officer) is Ex.P20. Copy of said report recorded at police station Sahibag, Ahmedabad and copy of statement of Karna Ram purported to be recorded by Executive Magistrate at Ahmebadad on 31.10.95 is Ex.P6. Recording statements of witnesses and after usual investigation, charge-sheet submitted. 4 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) Appellants charged for the offences of Sections 307, 326, 325 and 323 independently and also with Section 34 IPC and of Section 341 IPC - that they on October 29th at about 10-11 O'clock at village Jerol with common intention and in pursuance of common object of killing Karna Ram restraining him on way voluntarily inflicted grievous injuries of sharp- edged weapon to him at his head and also on chest and ribs and other simple injuries – claimed trial. Among the witnesses examined on behalf of the prosecution Karna Ram PW 2 is injured who deposes of causing injuries to him by appellant in manner and of objects as above. Mesaram PW 1 is complainant eye-witness who also deposes so, whereas other witness Baga Ram PW 2 is declared hostile by the prosecution. Kachhba PW 4, Deva Ram PW 5, Sujana Ram PW 6 and Teja Ram PW 9 are said to be witnesses of recovery etc. who all are declared hostile. Dr. Prem Raj PW 8 Medical Officer, Government hospital, Jhab examining the injuries of Kana Ram on 18.11.95, prepared report Ex.P15 and obtaining report of X- ray, also opined Ex.P14 about nature and he proves reports Exs. P13, P14 and Ex.P15. Dr. Guman Mal Solanki PW 7 Radiologist, Government hospital, Jalore on 29.11.95, getting x-ray of chest and head of Karna Ram done on the basis of plates Ex.P13, prepared report Ex.P14 and states of missing of right parietal bone with a gap and also fractures of 7th, 8th and 9th right ribs. 5 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) Appellant Vachana Ram explained that his father and injured Karna Ram are sons of step mother and Karna Ram wants to fetch their land, so are telling lie. All appellants stated that Karna Ram was cutting a Bordi (a small thorny tree) which fell on him and he injured. No defence witness was examined. Learned Judge, declaring appellants guilty for the offences of Sections 307/34, 326/34, 325/34, 323/34 and 341 IPC sentenced as above. Learned counsel appearing on behalf of the appellants vehemently argued that (1) of the alleged incident of 29.10.95, FIR is lodged on 19.11.95, that is delayed as much as 21 days – explanation of this abnormal delay given of injured being under treatment at Ahmedabad, cannot be acceptable for such a long period. (2) Injury report proved and on record are of 28.11.95, that is after 29 days of the alleged incident and on such injury reports, opinion of doctor regarding its nature cannot be of credence. (3) Recoveries not proved and even if taken to be proved, no inference can be against any appellant. (4) Appellants are real brothers and injured their first cousin with old enmity in between them – with this factum of 20 days delay in FIR renders entire story doubtful. (5) In any case, no intention can be of causing death as though at least two had sharp articles, but even as per prosecution and charge, only one injury of sharp – had there been any intention of causing death injury more than one from sharp side and repeated blow would have been – even doctor 6 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) speaks only of possibilities. Submitted that act, if proved, cannot go beyond Section 325 IPC and that too, only for persons who actually inflicted that injuries. Lastly submitted that parties have entered into compromise for the offences of Sections 325/34, 323/34 and 341 IPC which verified during this appeal is on record, so the appellants are to be acquitted for the offences of Sections 325/34, 323/34 and 341, IPC. Submitted that parties cousin brothers – have also described and verified in compromise to the effect that injured not willing to pursue alleged charge and act of Sections 307 and 326 IPC. Alternatively submitted that sentence of undergone shall meet ends of justice. Learned Public Prosecutor submitted that injured Karna Ram had to undergo intensive treatment and surgical operations at Ahmedabad which required attendance of his sons, so delay for FIR is properly explained. Argued that grievous injury of sharp object inflicted at occipital region, as a result of which gap in occipital region – remained hospitalized till after a month – in addition to head injuries, three ribs were also fractured, so the offence of Sections 307 and 326 IPC stands proved. Learned counsel appearing for the complainant submitted that parties cousin brothers – have entered into compromise which may be taken into consideration and reduced be sentences. 7 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) Thoughtfully considering rival contentions, perused record, evidence and judgment under-challenge. As per testimony of Dr. Prem Raj PW 8, is proved that on 28.11.95 on person of Karna Ram s/o. Keva Ram were injuries of following descriptions :- (1) Incised wound healed with 12 x 0.25 cm with 5 x 2.5 cm depressed part or scar right parietal bone. (2) Old healed lacerated wound 0.5 x 0.5 cm left parietal bone. (3) Old healed incised cut wound 3 x 0.25 cm on frontal bone. (4) Swelling with adhesive plaster on right part of chest 15 cm below axilla. Injury report is Ex.P15. Injuries No.1 and 3 were of sharp object. For first two injuries, x-ray advised and injuries were of within one month. Dr. Prem Raj PW 8 further opined that x-ray. X-ray report Ex.P14 shows that first and fourth injuries were grievous. On Ex.P14, also is mentioned that injuries appeared to be healed one, so nothing can be opined regarding nature of weapon of which inflicted. Per evidence of Radiologist Dr. PW 7, is proved that in his presence, skull and chest of Karna Ram were x-rayed on 29.11.95 at Government hospital, Jalore – plates of which are Exs.P13 and he (the Radiologist PW 7) observing plates, opined Ex.P14 that on occipital region at right parietal bone was a gap 6 x 2.5 cm meaning thereby this much part was missing. 7Th, 8th and 9th rib fractures with callous formation – the injuries were of duration two to 12 weeks. 8 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) Thus, stands proved that within 4-5 weeks, preceding 28.11.95 and certainly, prior to 10.11.95, the above grievous injuries were caused. Doctors (because they examined only on 28.11.95) could not opine definitely about nature of weapon. As per evidence of PW 1, the injured was treated at Ahmedabad hospital – any evidence or record of treatment of Ahmedabad is not on record, so inference about nature and effect of injuries is to be taken on the basis what was medically found as above. A look at the oral evidence proves that mother of injured and grand-mother of appellants, both were wives of appellants and PW 1's grand-father. Thus injured and appellant's father are step brothers. FIR lodged by Mesaram PW 1 mentions that incident occurred because of old enmity in relation to agriculture field and “sedha” (way or space between fencings). PW 1 and PW 3 also admit that appellants and complainants family were not on good terms because of the above dispute. Further, it also clearly appears that Karna Ram and Jawana Ram are real brothers and as mentioned above, father of appellants' is son of step mother of PW 3 the injured. From the evidence, also surfaces that field of complainant is at a distance 50-60 steps from the place, where the incident is alleged to have occurred. A joint reading of statement of PW 1 and PW 3 leads to 9 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) inference that agriculture fields of PW 3 and Jawana and also of appellants are very nearby to each other and a way also is through from sides of these lands and perhaps little over appellant's land. Mesa Ram PW 1 named eye witness in FIR does not support prosecution. Recoveries of axe etc. are after 45 days of the alleged incident and no specific marks, so evidence on this aspect and of “motbirs” need not be discussed. In addition to deposition of medical officer, material is the evidence of injured PW 3 and complainant eye- witness PW 1. PW 3 is cross-examined on Ex.P6 which appears to be a carbon copy of a statement recorded in Gujarati script. The same bears heading “dying declaration” and dated 31.10.95 – further is mentioned that it pertains to report No.25 of 1995 thumb impressions and signature of the officer are original (though statement is a carbon copy) and below signatures of the officer also written is “Executive Magistrate”. For this statement Ex.P-6, IO ASI PW 10 mentions in cross-examination that same received by Dak, but does not remember when. Ex.P6 purports to be a statement if Karna Ram and Karna Ram PW 3 states that in Ahmedabad, police personnels recorded his statement and Ex.P6 bears his thumb impression in cross-examination, says that he must have stated before Executive Magistrate that quarrel occurred at 10.00 A.M. No other 10 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) evidence or facts for this Ex.P6 is on record. Similarly Ex.P1 is a carbon copy report which also in Gujarati script (not in Devnagri script) seems to have some endorsement of police station, Sahibag and then receipt number and date 9.11.95 of police station, Sanchore than a endorsement that incident appears to be of village Jharol within police station Jhab, so to be forwarded to SHO, Police Station, Jhab. For this document also, mention seems to be only in statement of PW 2 that too about some omission. No other evidence is for this document – neither any particulars are available. First considering reasons and effect of delay for lodging FIR,provenly FIR is lodged on 19.11.95 by PW 1 and incident is alleged to be of 29.10.95. PW 1 tells that father severely injured and unconscious taken to Mehta hospital, Sanchore and then on same day at a private hospital in Disha and from there on 31st to Ahmedabad. As per evidence of PW 1, his father continuously remained under treatment at Ahmedabad, where also was his elder brother Naina Ram and elder father Jawana and back home at village were sister and mother. Karna Ram PW 3 the injured says that he became semi-conscious, taken to Sanchore hospital and after two days to Ahmedabad hospital and after 3 days he became fully unconscious and when under treatment at Ahmedabad, sons Nanaram and PW 1 were with him also – and also came there brother Jawana Ram. 11 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) Injuries sustained by Karna Ram are above described. Even after treatment and on occipital bone, was a gap of 6 cm x 2.5 cm – part of bone was not at occipital region and then over and around it, is a healed wound and scar of 12 x 2.5 cm with depressed part 5 x 2.5 cm with other two wound scars on occipital frontal region. In addition, are fractures of three ribs with even after a month plaster like bandage on chest – the injuries speak itself. With the above descriptions and dimensions of injuries solely can be inferred that both sons of injured were at Ahmedabad as necessarily required there and busy in treatment of Karna Ram – not only they but brother Jawana Ram also remained there for 17-18 or more days. Looking at nature of injuries and organ the injuries were caused, hardly can be caused by falling from a Bordi. In any case, the positive and worth belief is evidence as to how injuries sustained and caused. Injured PW 3 Karna Ram says that he around 10.00 am was going from his Nimbrawala field to other field and appellants were cutting “Bordi” at near his field and as he asked them to not to do so – then all three appellants, stopping him, caused injuries to him – Heera by axe at his head, Vachana by reverse Dhariya on his back and Sanwala of lathi at his head and Vachana pushed him down to earth – on his crying, came Vaga and Mesa who interveningly saved him. PW 3 further says that first 12 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) he was brought to his Dhani and then taken for treatment to Sanchore, then to Disha and lastly at Ahmedabad and son continuously remained with him at Ahmedabad for 25 days and brother Jawana also at Ahmedabad for 17-18 days. Categorically, PW 3 says that first blow was by axe at head and he cried loudly 2-3 times and his Dhani is at a distance of 50 steps. Baga Ram PW 2 who accompanied Mesaram has not supported prosecution, but this does in no way affect prosecution. Son of injured, Mesaram PW 1 states that at around 10-11, he was at his home and father bringing Pala (dry leaves etc. of Bordi) from field - was 40-50 steps away from home, appellants stopped him and he leaving his father shoutes, immediately reached there and all three appellants were beating father. Mesaram PW 1 states that Heera Ram gave blow of axe on head and Sanwla blow of lathi – then his father fell down, from reverse Dhariya appellant Vasna inflicted blow at ribs. Mesa PW 1 says that he requested for not beating the accused ran away and father brought to home then in tractor of Darga to village Khara – from there in a jeep to Sanchore hospital, where doctors told to go to higher centre so proceeded to Disha, where after treatment for two days, father taken to Ahmedabad civil hospital for treatment. PW 1 also says that police personnels of P.S. Sahi Bagh recorded the statements of father, 13 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) but then no action followed and after treatment of father for 20-25 days he coming back lodged report Ex.P1. From what PW 1 says in cross- examination transpires that place of incident was 50-60 steps from there house and as he reached, father lying on ground – was also speaking beating to him and for treatment – father first taken to house, where elder father Jawana Ram also called – within two hours reached Sanchore hospital and then within 2-3 hours Disha hospital and by 31st evening Ahmedabad. Absolutely no reason appear to doubt any part of testimony of PW 1 and injured Karna Ram - injured and appellants were on deep in different terms, but it does not, in any way, adversely affect their testimony, rather from it surfaces cause. On the strength of evidence that blow and injury of Dhariya was caused by reverse side, argued is that no intention of causing death can be. For this submission is also made to the effect that of axe also, one injury inflicted. Vehemently submitted that injured and appellants are first cousins who though not on good terms, but had no litigation of any nature, so no reason can be of having any intention or knowledge to cause death. Also submitted that parties have entered into compromise. Considered arguments with established facts and circumstances. 14 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) PW 1 and injured both positively state that of axe, injury was inflicted at head by appellant Heera and blow of Dhariya was from reverse side and on rib, blow of lathi by other appellants. Argued that injured PW 3 in his testimony says that he going on way finding appellants cutting Bordi, he objected for it, then the incident followed. Fields of all brothers are located near to each other. These facts disclose that incident occurred spontaneously without any premeditation. In the circumstances, though injuries inflicted are very grievous, but still intention of causing death or such injury as to cause death can hardly be inferred, particularly when no specific reason was, as is observed, though parties were in- different and non-speaking terms, but nothing to show to the extent of enmity. The incident ensured only when cutting of “Bordi” (a small tree) objected by injured discloses lack of pre concert or pre-thought. However, the fact remains that on head, injuries caused by an axe and injuries grievous one. At that very moment, injuries by lathi and reverse of Dhariya inflicted by other accused, so definite is that all intended to cause grievous injury by sharp weapon – object axe when used as a object of assault definitely is a sharp weapon. Thus, act of appellant Heera is a offence punishable under Section 326 IPC. The other appellants are also guilty of offence of Section 326 read with Section 34 IPC. 15 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) Grievous injury is also caused by blunt object, but as causing grievous object is included in offence of Section 326 IPC and parties entered into compromise – no necessity to convict or punish them for the offence of Section 325, particularly when as they have entered into compromise for it and to be acquitted for this. Now, coming to quantum of sentence, appellant Heera who actually inflicted grievous injury of sharp weapon, seems to have remained in custody for 15 days in December, 95 and then is undergoing sentence since 18.7.07 – other two appellants seem to have remained in custody for few days in December, 95. Parties are first cousin and have entered into compromise for the offences of Sections 325, 323 and 341 IPC but at the same time injuries caused were very grievous at vital part – too higher a custodial punishment may tend and perpetuate indifferences between these brothers. Appellant Heera is in custody since July, 07 and earlier also was in custody for some days – other two appellants also in custody in December, 05 and no earlier record of any unwanted activities, in the opinion of the Court, now sentence of period already undergone with appropriate fine shall meet ends of justice. Fine of appellant Heera is determined Rs.10,000/-, in default three months' rigorous imprisonment – for each other two appellants Vachana and Sanwala Rs.30,000/-, in default to undergo 8 months rigorous 16 S.B.Cr.Appeal No.551/07 (Heera & Others v. State) imprisonment. Accordingly, appeal is partly allowed – appellants are acquitted for the offences of Section 325, 323 and 341 IPC because of compromise. Setting aside convictions and sentences awarded as per judgment dated 18.7.07 (in SC No.68/06), they are convicted and sentenced as (1) appellant Heera for the offence of Section 326 – sentence of period already undergone with fine of Rs.10,000/-, in default three months' rigorous imprisonment, (2) appellants Vachana and Sanwala both for the offence of Section 326/34 IPC – sentence already undergone with fine of Rs.30,000/- in default to undergo 8 months' rigorous imprisonment. Appellants Vachana and Sanwala to deposit out of fine not less than Rs.15,000/- on or before 31.8.09 in the trial Court and remaining amount on or before 30.9.09, failing which to appear before trial Court for serving out sentence awarded and the trial Court also to secure. (C.M. TOTLA),J.