DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Smt. Bhanwari and others. vs. State of Rajasthan. D.B.CRIMINAL APPEAL NO.679/2000 UNDER SECTION 374 CrPC AGAINST THE JUDGMENT AND ORDER DATED 15.11.2000 PASSED BY SHRI H.S. SAXENA, ADDITIONAL SESSIONS JUDGE, RATANGARH (CHURU) IN SESSIONS CASE NO.42/1992 (91/1989). DATE OF JUDGMENT ::: July 18th, 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA, J. Mr.Niranjan Singh for Mr.MK Garg, for the appellants. Mr.VR Mehta, Public Prosecutor. Mr.SG Ojha, for the complainant. - - - - - BY THE COURT (PER HON'BLE MR.PRAKASH TATIA, J.): REPORTABLE Heard learned counsel for the parties. This appeal is against the judgment and order of conviction and sentence dated 15.11.2000 passed by the Court of learned Additional Sessions Judge, Ratangarh (Churu) in Sessions case no.42/1992 (91/1989). There DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 2 was a cross case and that was Sessions Case No.54/1992 (34/1990) wherein the accused persons, members of the complainant party in the present case, were convicted by the same Court i.e. Court of learned Additional Sessions Judge, Ratangarh (Churu) by judgment and order dated 15.11.2000. The appeal against cross case being S.B. Criminal Appeal No.682/2000 is also being decided today by separate judgment. In Village Dassusar in Town Simsiya, agriculture land bearing khasra nos.229, 357 and 30 total measuring 78 bighas 10 biswas was the agricultural land of one Moola Ram. Mst.Seu Devi @ Mst. Sua Devi is wife of Moola Ram. Moola Ram and Seu Devi had no issue. Moola Ram had two brothers Kalu Ram and Chela Ram. Kalu Ram also had no issue. Only Chela Ram had issue. Moola Ram died about 25 years ago from the year 1988. Jetha Ram claimed that he was adopted by Moola Ram and on 27.10.1958, Moola Ram executed a declaration (Pratigya Patra) (Ex.D/3) admitting Jetha Ram's adoption, which was verified from the Gram Panchayat Simsiya. However, after the death of Moola Ram, name of only Seu Devi was entered in the revenue record. Part of the said land was purchased by one Girdhari and his son Nirayana Ram by registered sale deed dated 4.10.1988 from Seu Devi and on the basis of that sale deed, by which 42 bighas DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 3 3 biswas land of khasra no.229 and 6 bighas 5 biswas of khasra no.357 total 48 bighas 8 biswas were sold by Mst. Seu Devi to Girdhari Lal and Nirayana Ram, mutation was opened and in the revenue record, the purchasers' names were entered (Jamabandi Ex.P/68 and its copy Ex.P/68A). When this fact of alleged purchase of land by Girdhari Lal and Nirayana Ram came in the knowledge of Jetha Ram, the alleged adopted son of Moola Ram and Seu Devi, he filed a suit in the Court of Sub Divisional Magistrate, Ratangarh, copy of which is Ex.D/34. In the said suit filed against the purchasers, Girdhari Lal and Nirayana Ram, application for interim relief was filed on 31.10.1988, copy of which is Ex.D/36. On 4.11.1988, injunction order was passed in favour of Jetha Ram which was against the purchasers restraining them from interfering in possession and cultivation of Jetha Ram. Copy of this order is Ex.D/37. Jetha Ram died and in his place, his legal representatives became party in the suit on 30.4.12994. Copy of amended suit is Ex.D/31. One more suit was filed for cancellation of sale deed 4.10.1988 on 26.9.1991, copy of which is Ex.D/40, which was amended and copy of amended suit is Ex.D/42. The purchaser Nirayana Ram also filed cross suit, copy of which is Ex.D/38. Even a criminal case against Jetha Ram, alleged adopted son of Moola Ram and Seu Devi, and his DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 4 son Gopal Ram was lodged. FIR was filed in the police station with allegation of theft wherein FR was submitted on 21.12.1988, copy whereof is Ex.D/43. Therefore, there was dispute between family of Jetha Ram (claiming right through adoption) with the purchasers Girdhari Lal and Nirayana Ram's family who purchased the property from the alleged adoptive mother of Jetha Ram by registered sale deed. As per the prosecution case, because of that rivalry both the parties were asserting their title and possession over the land of khasra numbers mentioned above. The incident which is under consideration in this appeal happened on 30.6.1989. As per the prosecution case on 30.6.1989 at 11:00 AM, complainant Mana Ram s/o Bhera Ram, by caste Jat, r/o Dassusar at Government Hospital, Ratangarh gave oral report (Parcha Bayan) to SHO Roshan Ali (PW24) of the Police Station, Rajaldesar (Ex.P/9) stating therein that he was taking his cattle to the well of village. There Mala Ram's son Bhanwara Ram came on a camel cart and shouted that the sons of Chokha Ram are ploughing the agricultural land and, therefore, they are required to be given a lesson. Jetha Ram, Gopal, Lachu and Hira Ram's sons came running making “rola” (shouting) and were saying that today, Chokha's sons will be killed. Complainant Mana Ram's nephew Shera Ram also went with DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 5 Choka's sons to the agricultural field. The complainant immediately rushed towards the agricultural field. When he reached near the boundary of the agricultural field, in the tractor of Dharma Ram s/o Mohan Lal which was being driven by Bhanwara s/o Gopal, wherein Gopal Ram s/o Jetha Ram had “pistol” in his hand, Indra Ram s/o Jetha Ram, Lala Ram s/o Kumbha Ram, Bhanwara Ram s/o Mala Ram and Adu Ram's wife had “Chosangi” ; Prabhu Ram s/o Jetha Ram and Tara Chand s/o Lachhu Ram had “Shail” ; Bhanwara Ram s/o Gopal Ram, Narayan Ram s/o Pana Ram, Likhma Ram s/o Lachhu and wife of Mana Ram had “Gandasies” ; Dharma Ram s/o Jetha Ram, Birju s/o Gopal, Kana Ram s/o Lala Ram, Mala Ram, s/o Kumbha Ram, Adu Ram s/o Nola Ram, Durga Ram s/o Lachhu Ram, Bhagwana Ram s/o Mala Ram, Mohan Ram s/o Hira Ram, Tulchha Ram s/o Hira Ram, Kunana Ram s/o Hira Ram, Narayan s/o Lachhu Ram, Bhanwari w/o Megha Ram and wife of Indra Ram had “Lathies” in their hands, came down and shouted “kill-kill”. All the accused with lathies, Shail, Jai, Barchi etc. Started beating Chokha Ram's sons – Gordhan, Tiku and Narayan, complainant's nephew shera Ram and Surja Ram Kumhar with intention to kill them. Accused tried to give beating to sons of Choka Ram - Bhagwana Ram and Harkha Ram who saved themselves and ran away from the place of the incident. The complainant, out of fear, sat under the fencing of the DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 6 agricultural land during this fight. At that time, Bhanwara Ram Kaswa, Bhagwana Ram s/o Jhoomar Ram, Lala Ram s/o Nopa Ram were also passing through as they were going to their agricultural land. They also saw the incident. When these persons gave challenge to the accused, all the accused ran away. After that, the complainant went near the victims and found that Narayan, Tiku and Gordhan were already dead. Shera Ram and Sugana Ram were crying and they became unconscious. In the oral report, the complainant stated that to inform this incident, he came from the place of incident on foot to Rajaldesar and by the time, he reached there, he found Rajaldesar police took the injured to the Ratangarh Hospital and, therefore, he came to the Ratangarh Hospital. He stated that all the accused with common object killed Narayan Tiku and Gordhan and injured so many persons and that has been done because of the litigation between two families – one of Choka Ram and another of Jetha Ram. It is alleged that the land was purchased by Choka Ram in the name of his sons and he took possession of the land also from Mst. Seu Devi whereas Jetha Ram who is Mst. Seu Devi's husband's elder brother's son wants to grab the land and he has already filed suit in the revenue court. Due to this enmity, they killed and injured the victims. DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 7 On the basis of this parcha bayan of complainant Mana Ram, FIR no.10/1989 for offence under Sections 302, 307, 147, 148, 149, 447 and 323 IPC was registered and investigation started. The bodies of Shera Ram & Sugana Ram sons of Uda Ram and Gordhan Ram, Tiku Ram & Narayan Ram sons of Choka Ram, who died in the incident, were sent for post mortem and their post mortem reports were obtained. Other injured Harkha Ram, Girdhari, Thakar Ram, Bhagwana Ram s/o Nyola Ram and Bhagwana Ram s/o Chokha Ram were examined by the doctor and their medical reports were obtained. Site was inspected and relevant evidence was collected and seized from the site including the blood soil, plain soil and also certain household articles, agricultural implements, one air gun, one kulhari, one barchi, two wrist watches were also seized from the place of incident and their seizure memos were prepared. After post mortem, the bodies of the deceased were handed over to their relatives for last rites. It was found that the incident occurred before the site inspection Commissioner appointed in revenue suit could have submitted his report in the SDM's Court, Ratangarh in the suit filed by one of the party. In this fight, members of the accused party were also injured who were medically examined and copies of revenue record were also obtained and statements of witnesses were recorded DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 8 under Section 161 CrPC. The accused were arrested and they gave information under Section 27 of the Evidence Act, on the basis of which the weapons of offence were recovered. Copy of order appointing Commissioner was also obtained and thereafter challan was filed against 27 accused persons. The trial court framed charges against accused Mala Ram for the offence under Sections 302 in alternative u/s 302/149, 307 in alternative u/s 307/149, 325, 323 in alternative u/s 323/149, 148 and 447 IPC. Against rest of the accused persons, charges for the offence under Sections 302 in alternative u/s 302/149, 307 in alternative u/s 307/149, 325/149, 323 in alternative u/s 323/149, 148 and 447 IPC were framed. The accused denied the charges and sought trial. At the trial, the prosecution produced PW1 Jairaj Panwar, PW2 Smt. Seu @ Sui, PW3 Mana Ram, PW4 Bhagwana Ram, PW5 Thakar Ram, PW6 Lala Ram, PW7 Fefa Ram, PW8 Bhanwara Ram, PW9 Chokha Ram, PW10 Harkha Ram, PW11 Girdhari, PW12 Surja Ram, PW13 Mohan Ram, PW14 Bhagwana Ram, PW15 Bhoma Ram, PW16 Narayana Ram, PW17 Poorna Ram, PW18 Moola Ram, PW19 Ghadsi Ram, PW20 Bega Ram, PW21 Nawab Ali, PW22 Nagar Mal, PW23 Dr. Bhanwar Lal Verma, PW24 Roshan Ali, PW25 Dr.Lal Chand Suthar, PW26 Raghuveer Singh, PW27 Bhanwar Singh, PW28 Richpal DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 9 Singh, PW29 Ram Lal, PW30 Bhanwar Singh, PW31 Ummed Singh and PW32 Suresh Tiwari and exhibited 130 documents. During trial, accused Deva Ram s/o Hira Ram died and, therefore, the case against him was abated vide order dated 16.7.1997. Statement of rest 26 accused were recorded under Section 313 CrPC wherein they denied all allegations and gave their own explanation. In defence, seven witnesses DW1 Kunana Ram, DW2 Mohan Ram, DW3 Chothu Ram, DW4 Lichman Singh, DW5 Salu Ram, Dw6 Bhanwar Singh and DW7 Ghanshyam Chandra were examined so also, 32 documents were exhibited. The trial court, by the impugned judgment dated 15.11.2000, convicted only ten accused appellants Smt. Bhanwari w/o Megha Ram, Nirana Ram s/o Lichhu Ram, Indra Ram s/o Jetha Ram, Bhagwana Ram s/o Mana Ram, Mohan Ram s/o Hira Ram, Kunana Ram s/o Hira Ram, Amara Ram s/o Ratna Ram, Tulcha Ram s/o Hira Ram, Gopal Ram s/o Jetha Ram and Likhma Ram s/o Lachhu Ram and rest of the accused Adu Ram s/o Nyola Ram, Lala Ram s/o Kumbha Ram, Birju Ram s/o Gopal Ram, Kana Ram s/o Gopal Ram, Prabhu Ram s/o Jetha Ram, Bhanwara Ram s/o Gopal Ram, Megha Ram s/o Amra Ram, Bhanwara Ram s/o Mala Ram, Narayan Ram s/o Panna Ram, Kana Ram s/o Lala Ram, Durga Ram s/o Lachu Ram, Dharma Ram s/o Jetha Ram, Tara Chand s/o Lichu, Smt. Dhanni w/o Mana Ram, Smt. Maggi s/o DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 10 Indra Ram and Mala Ram s/o Kumbha Ram were acquitted from the charges levelled against them. The learned trial court vide judgment dated 15.11.2000 convicted and sentenced the accused appellants as under :- Offence Punishment Section 148 IPC Each appellant to undergo rigorous imprisonment for two years. Section 302 IPC Each appellant to undergo life r/w 149 IPC imprisonment with a fine of Rs.1,000/- each and in default to further undergo 3 month's simple imprisonment. Section 325 IPC Each appellant to undergo rigorous r/w 149 IPC imprisonment for three years with a fine of Rs.500/- each and in default to further undergo 2 months' simple imprisonment. Section 324 IPC Each appellant to undergo rigorous r/w 149 IPC imprisonment for two years. Section 323 IPC Each appellant to undergo rigorous r/w 149 IPC imprisonment for six months. Learned counsel for the appellants assailed the finding of the trial court and submitted that the entire prosecution story is a result of concoction of story by the complainant party. The prosecution failed to prove the real cause of free fight between the parties and the trial court miserably failed to know the effect of specific finding about the actual physical possession of the complainant party over the DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 11 land in dispute where the appellants were attacked by the complainant party and further failed to appreciate that the appellants were not the aggressors but the complainant party was aggressor. It is also submitted that the trial court committed error of law in holding that the appellants were the members of unlawful assembly and in fact, the trial court held that the accused party was in possession of the land in question and also observed that the presence of the accused party on the land in question was in natural sequence, then how the appellants can be held to be members of unlawful assembly ? It is also submitted that the accused appellants had every right to protect their property and when there is threat to their property as well as to their own life, then they had every right to resist that aggression with might in exercise of their right of private defence. It is also submitted that even if the finding of the trial court about unlawful object is examined, then if there was an object to defend the possession and save appellants' own life, then that object cannot be said to be unlawful object. Rather say, that object is in furtherance to right of private defence of the appellants who were and are in possession of immovable property against which there was an eminent threat and danger, danger to life also. In view of the above, none of the appellants could have DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 12 been convicted with the aid of Section 149 IPC. Learned counsel for the appellants further submitted that the statement of eye witnesses are wholly unreliable and it is clear from the evidence produced by the prosecution itself that the real facts have been suppressed by the prosecution and that is due to complainant party and their witnesses who are relatives, having enmity with appellants. The grave injuries were found on the body of the accused persons and those injuries have been proved by medical evidence and the prosecution witnesses failed to explain those injuries which were on the body of the accused persons and more is that the prosecution witnesses denied the injuries on the body of the appellants who suffered injuries in the same incident and accused, member of complainant party, were convicted by trial court in cross case. The trial court should have drawn inference that the alleged eye witnesses and other witnesses are not reliable and are speaking lie. Learned counsel for the appellants vehemently submitted that the appellants have been acquitted of the charge of criminal trespass under Section 447 IPC, then in that situation, the appellants could not have been aggressors and this fact proves the possession of the appellants over the land in question where the aggressors attacked upon them who are the accused in DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 13 cross case filed by the appellants and who have been convicted. In sum and substance, the appellants' contention is that firstly they were in possession of the land in question. They, finding serious threat to the property and life, exercised right of private defence wherein five aggressors died and some of the aggressors suffered injuries. Therefore, they are entitled to be acquitted for the offence for which they have been charged. It is also the case of the appellants that in the facts of the case, none of the accused should have been convicted with the aid of Section 149 IPC because there was no common object and object to defend is not unlawful object. It is also submitted that it was a case of free fight and, therefore, even if anyone could have been convicted, then that person alone could have been convicted for the act which he committed personally and individually. In the present case, firstly, the appellants are entitled to be acquitted as they have exercised their right of private defence and secondly, it was a case of private defence and, thirdly, if any person who inflicted the injury is responsible to the consequence of that act, than the prosecution has not proved who individually is responsible for fatal or other injury and who inflicted which injury upon which of the victim. Therefore, all DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 14 the appellants are entitled to be acquitted. Learned counsel for the appellants tried to draw our attention to the discrepancies in the evidence of the prosecution witnesses as well as some procedural defect in conducting the investigation and lodging of FIR after delay and further submitted that initial FIR was withheld by the prosecution. It is also submitted that even the injured witnesses are not reliable and, therefore, in view of the long enmity between the parties. Large number of persons have been falsely involved by the complainant and that shows that the complainant can concoct any false story against the innocent persons. Learned Public Prosecutor as well as learned counsel for the complainant supported the judgment of the trial court and stated that the occurrence of the incident and place of occurrence is not in dispute. Five persons died and that fact itself is sufficient to hold that the plea of right of private defence is not available to the appellants and, therefore, their appeal deserves to be dismissed only on this ground because of the reason that when the fight is admitted and in that fight, killing of five persons is admitted and right of private defence cannot be stretched to allow killing of five persons by the accused persons DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 15 who are claiming possession or may be in actual possession. The plea is based only on the ground of imaginary threat to their life and property. It is submitted that according to the appellants themselves, they did not went on the field to plough it, then what was the occasion for them to have so many weapons with them so as to overpower the large number of aggressors and kill five aggressors and injure other number of persons. In view of the above reason, the entire defence of the accused falls to the ground. It is also submitted that from totality of the facts, it is fully proved that the appellants wanted to show their possession over the agricultural land and in that effort, they attacked upon the members of the complainant party mercilessly and killed five persons and injured so many other persons. We considered the submissions of learned counsel for the parties and perused the record and the reasons given by the trial court in the impugned judgment. The facts in brief may be recapitulated here. The cause of dispute between two rival groups is because of the claim of right, title, interest and possession in/ over agriculture land of Khasra Nos.229 and 357 of Village Dassusar of Halka Simsiya. That land was DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 16 originally belonging to one Moola Ram whose first wife was Mst. Ana Devi. As per PW2, second wife of Moola Ram – Mst. Sua Devi, first wife Mst. Ana Devi died without living any issue. Mst. Sua Devi was also earlier married to some one, resident of Sujangarh and her first husband died. Thereafter, she contracted Nata marriage with said Moola Ram. Out of this marriage also, no issue borne to Moola Ram and Mst. Sua Devi. Jetha Ram was claiming that he was adopted by his real uncle Moola Ram and Moola Ram died about 28 years ago from the time of the incident. Jetha Ram's contention is that they were in possession of the said agriculture land since time of Moola Ram and thereafter, after death of Moola Ram. This fact of adoption of Jetha Ram by Moola Ram or by Mst. Sua Devi has been denied by Mst. Sua Devi (PW2) in her statement. She also admitted that she sold the land in dispute to Nirayana Ram and Girdhari Lal by registered sale deed for a consideration of Rs.73,000/- and gave possession of the land to the said Nirayana Ram and Girdhari Lal. Before Nirayana Ram and Girdhari Lal, she herself was cultivating the land in question and Jetha Ram was not in possession of the land in dispute. It is also proved from the documentary evidence and substantially it is not in dispute when fact of sale of the land by Mst. Sua Devi in favour of the purchasers referred above DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs. State) 17 came to the knowledge of Jetha Ram, then he filed suit on 30.10.1988 in the Court of S.D.M., Ratangarh and challenged the sale deed and after death of Jetha Ram, in the year 1994, Jetha Ram's legal representatives became parties in the suit. Jetha Ram in his life time submitted injunction application in the Court of SDM, Ratangarh in the said suit and obtain order for appointment of site inspection Commissioner and in that injunction application, interim order was passed on 4.11.1988 restraining the purchasers from interfering with the land in question vide Ex.D/37. Nirayana Ram also filed counter suit, copy of which is Ex.P/38. One more suit for cancellation of sale deed (after present incident) was filed by Jetha Ram on 26.9.1991, copy of which is Ex.D/40. The purchasers filed a FIR No.238 on 21.11.1988 for removing the crop of the purchasers by Jetha Ram in which FR Ex.D/43 was submitted by the police. In view of the above mentioned facts, it is clear that two parties had not only no good relations but had enmity. During this litigation on 30.6.1989, this incident occurred. The prosecution produced 5 injured witnesses who are PW4 Bhagwana Ram, PW5 Thakur Ram, PW10 Harkha Ram, PW11 Girdhari Ram and PW14 Bhagwana Ram (second) as well as complainant PW3 Mana Ram. They supported prosecution case. However, some part of statements of DB Criminal Appeal No.679/2000 (Smt. Bhanwari and ors. vs.