1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Deva alias Devi Lal Vs. State of Rajasthan (1) D.B. CRIMINAL APPEAL NO.30/2002 Deva alias Devi Lal Vs. State of Rajasthan (2) D.B. CRIMINAL JAIL APPEAL NO.874/2001 Kanna alias Kanhaiya Lal Vs. State of Rajasthan (3) D.B. CRIMINAL APPEAL NO.836/2001 Duda alias Udailal Gameti Vs. State of Rajasthan (4) D.B. CRIMINAL APPEAL NO.18/2002 against the judgment dt. 03.11.2001 passed by the Addl.Sessions Judge (FT), Udaipur, in Sessions Case No.73/2001. Date of Judgment: Sept., 8th 2008 P R E S E N T HON'BLE MR.JUSTICE A.M. KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Pradeep Shah ) Mr.Sandeep Mehta ) Mr.Shambhoo Singh) for the accused appellants. Mr.Vishal Raj Mehta, Public Prosecutor. 2. REPORTABLE BY THE COURT : (PER HON'BLE THANVI J.) 1. Since all these four appeals are arising out of the same incident, they are being decided by this common judgment. 2. In these four appeals filed by three appellants, two by Deva alias Devi Lal, one through Jail and the other being regular appeal and rest of the two by Kanna alias Kanhaiya Lal and Duda alias Udai Lal, are against their conviction & sentences passed by the learned Addl. Sessions Judge (F.T.), Udaipur on 3.11.2001, whereby, the accused Deva was convicted under Section 302 IPC and accused Duda and Kanna were convicted under Section 302 read with Section 34 IPC and all the three were sentenced to undergo life imprisonment along with a fine of Rs.1000/- each and in default, to further undergo three months' S.I. However, accused Duda and Kanna were acquitted under Section 323 IPC. The proceedings against fourth accused Deva Gameti were dropped on account of his death. 3. Brief facts leading to these appeals are that on 7.1.2001 at 7 P.M., Prakash (PW-17) made an oral report Ex.P.20 at Parakhet Factory area before the In-charge, Police Station, Goverdhan Vilas, District Udaipur, in which it was stated that in the evening at 5 P.M. when he and Prabhu Singh were standing 3. at a tea stall, his brother-in-law Madan Vaishnav came on his land and after visiting around, he came on the road. Upon this the neighbours Kanhaiya Lal Gameti, his brother Devi Lal, Duda and Deva Kumhar ran after Madan Vaishnav and told him as to why he has not left the land and threatened to kill him. Accused Deva Kumhar was having axe, Duda was having 'Kunt', Devi Lal was having lathi and Kanhaiya Lal was having stone in their hands. They all ran towards Madan Vaishnav and threw him on the ground near the house of Deva. Accused Deva Kumhar inflicted axe blow and rest three also inflicted multiple blows conjointly. When he and Prabhu Singh went to interfere then Deva Kumhar inflicted axe blow on him and Devi Lal inflicted injury on the person of Prabhu Singh. They were forced to run from the spot. Madan Vaishnav was killed. Thereafter, all the four fled from the spot. Upon this report, the police registered a case under Sections 302, 307, 323 read with Section 34 IPC and commenced investigations. During investigation, weapon – articles were recovered upon the informations furnished by the accused under Section 27 of the Evidence Act and they were sent for chemical examination. Thereafter, all the accused appellants were challaned accordingly before the court of ACJM No.3, Udaipur, who committed the case to the court of Sessions. After hearing the arguments on charge, accused Deva Kumhar was charged under Section 302 IPC and rest of the three 4. accused namely Duda, Deva Gameti and Kanna were charged under Section 302 read with Section 34 IPC and under Section 323 IPC. All the four accused pleaded not guilty and claimed trial. The prosecution examined 19 witnesses. The statements of the accused were recorded under Section 313 CrPC. They led no defence. After hearing the arguments, the learned trial Judge acquitted accused appellants Duda and Kanna under Section 323 IPC but convicted them under Section 302 read with Section 34 IPC along with accused Deva Kumhar under Section 302 IPC. The proceeding against accused Deva Gameti were dropped on account of his death. All the three accused were sentenced to imprisonment for life and a fine of Rs.1000/- each and in default, to further undergo three months' S.I. 4. While assailing the judgment of the learned trial court, Mr.Pradeep Shah, learned counsel for accused appellant Deva Kumhar has submitted that the place where the incident took place, belong to the accused as per the site plan Ex.P.12 and deceased forcibly entered into the field and if at all, any incident has happened with him, it was in the exercise of his right of private defence. According to him, it is alleged that accused Deva Kumhar was having axe in his hand, but Dr. Anis Ahmed (PW-19) has stated vide Ex.P.34 that injury no.7 which is said to have been inflicted by this accused, is not an injury by axe, as it 5. was not sharp. Injury No.7 in Ex.P.34 is an incised wound on the neck measuring 16 x 5 cm, which the doctor has opined to be dangerous to life. No other injury is said to have been inflicted by this accused. Therefore, there is no overt act on the part of this accused appellant and if at all, his presence is established then the case does not fall beyond Section 304 Part-I or Part-II IPC. 5. Mr. Sandeep Mehta, learned counsel for accused appellant Kanna alias Kanhaiya Lal has submitted that as per the version of Prabhu Singh (PW-10), Kanna is said to have inflicted blow with stone but there is no stone injury as per the statement of Dr. Anis Ahmed (PW19). 6. Likewise Mr.Shambhoo Singh, learned counsel for accused appellant Duda has submitted that this accused appellant was having 'Kunt' in his hand but no witness has said that the 'Kunt' was used by accused Duda. 7. According to all the learned counsel appearing for the accused appellants, both the eye witnesses namely Prabhu Singh (PW-10) and Prakash (PW-17) are relatives of the deceased Madan Vaishnav and they have exaggerated their statements by implicating the accused appellants in the murder of Madan 6. Vaishnav, who was their brother-in-law. 8. Per contra, the learned Public Prosecutor has supported the judgment of the learned trial court. 9. We have re-appreciated the evidence of eye witnesses as well as the corroborative evidence of Dr. Anis Ahmed, recovery memo, site plan and report of the F.S.L. The material eye witnesses in the case are Prabhu Singh (PW-10) and Prakash (PW-17). 10. Prabhu Singh (PW-10) has stated that on the date of incident, when he and Prakash were at a tea stall, then Madanji and Trilok came in a car at 5.30 P.M. Madanji entered into the field and Trilok was standing outside near the car. When Madanji came back from the field, his neighbours Kanhaiya Lal, Devi Lal, Duda Gameti and Deva Kumhar ran towards Madanji and told that why he has not left the field and that they will kill him today. All ran towards Madanji, who fell down near the house of Devi Lal Gameti. Deva Kumhar inflicted axe blow on the neck of Madanji, Kanhaiya Lal was having a stone, Duda was having 'Kunt' and Deve Lal Gameti was having lathi in his hand and they all inflicted blows on the person of Madan. When they went to intervene, Deva Kumhar inflicted blow with axe on Prakash and 7. Devi Lal Gameti inflicted blow on him. All the four accused told both of them that they should leave the place, else, they will also be killed. Both of them left and stayed at some distance and saw the incident of killing Madan, who died on the spot. The police came on the spot and prepared site plan Ex.P.12. 11. The contention of the learned counsel for the appellants is that similar statement has been given by Prakash (PW-17), who has stated that Deva Kumhar inflicted axe blow on the neck of Madanji. According to the contention of the learned counsel for the accused appellant Deva Kumhar, Dr. Anis Ahmed (PW-19) was specifically asked about the injury with the help of axe, which is Article-3, to which the doctor replied that it was not sharp and the injury No.7 which is said to be on the neck including the injuries No.10 and 14 cannot be caused by this weapon along with injury no. 6. In our view, this discrepancy in the statements of the eye witnesses and of the doctor with regard to the injury on the neck which is said to be injury no.7, is not so fatal as to throw out the entire case of the prosecution. To clarify this discrepancy, a question was put to the doctor in re-examination by the Public Prosecutor, then he replied that he cannot say what was the condition of the axe at the time of the incident, but if on this axe, Article-3, had there been a sharp edge on the axe, injuries no.7 and 10 could have been caused. 8. Of-course, when the axe, Article-3, was shown to this doctor witness, he said that there was no sharp edge on it but upon answer to the re-examination, the doctor stated that he cannot say as to what was the condition of axe at the time of incident whether its sharp edge was removed after the incident or not. When both the eye witnesses have said that all the four accused were having deadly weapons in their hands and they continuously inflicted blows on the person of Madan Vaishnav by following him when he was running, whereupon, he received as many as 15 injuries resulting in his death, then it is immaterial as to which accused inflicted injury on which part of the deceased. The medical evidence is a corroborative evidence and when the direct evidence of eye witnesses is available on record and if it is seen in the light of the injuries received which are 15 in number, it can safely be arrived at the conclusion to accept the version of the eye witnesses that all the four accused inflicted injuries on the person of Madan conjointly. This statement of joint infliction of injuries has been categorically narrated by both the eye witnesses Prabhu Singh (PW-10) and Prakash (PW-17). 12. When conjointly two or more persons inflict blows on a person with a motive to kill on account of possession over the field, then it can safely be gathered that their common intention 9. was to kill the deceased, who died on the spot. The contention of the learned counsel for the appellants Duda and of Kanna that there was no injuries of 'Kunt' and of stone on the person of deceased Madan, as no witness has said that Duda used 'Kunt' and Kanna used stone, is immaterial in the light of joint beating. As per the post mortem report Ex.P.34, there were 15 injuries on the person of Madan Vaishnav. Some of the injuries are lacerated wounds, some are incised wounds and some are abrasions including the stab wounds and scratches. As a result of these multiple injuries, injuries no.7 to 10, as per the opinion of the doctor, were dangerous to life and sufficient in the ordinary course of nature to cause death, which are as under: “7. Incised wound 16 x 5cm muscle deep extending from it stern lateral larynx ant. border to left side of neck crossing over thyroid cartilage and laryngal cartilage. depth is more on rt. side angle. 8. Stab wound 6 x 3cm muscle deep just below injury No.7 on left side neck. Blood clots present; 9. Stab wound 6 x 3cm trachea deep just below thyroid cartilage. Blood clots; 10. Incised wound 5 x 1cm muscle deep left side of neck below injury No.9. Blood clots.” 13. As per the post mortem report, Ex.P.34, the cause of death was haemorrhagic shock resulted by neck injuries No.7 to 10. Injury No.7 and 10 are on the neck and injury No.8 is a result of 10. injury No.7 and there was blood clotted on injury No.9 which is on the trachea deep just below thyroid cartilage. When both the witnesses have stated that all the four accused conjointly inflicted multiple blows, corroborated by the evidence of doctor as well as from the FSL Report, Ex.P.25, where blood was found on `Lath' (Ex.8), `Kulhari' (Ex.9) and `Kunt' (Ex.10), recovered at the instance of the accused vide Ex.P.7 to Ex.P.9 and Ex.P.14 in pursuance to the information furnished by the accused u/s.27 of the Evidence Act. The presence of the accused on the spot is further established from the testimony of Triloki Nath (PW 1), who went with the deceased Madan in the car at the spot. He has stated that 3-4 accused appellants were fighting with Madan Vaishnav and were having arms & weapons in their hands and their names were told by Prakash when he came back at 6 P.M. At that time, Madan was killed and the police had reached on the spot. 14. Coming to the contention of the learned counsel for the accused appellants about exercising right of private defence, learned counsel has drawn our attention towards site plan Ex.P.12. In this site plan, portion `A' has been marked where the accused was killed and on the northern side of it, there is a shop of accused Devilal, which is marked as portion `G' and on the southern side, there is a field of accused appellant Deva 11. Kumhar, which is shown in portion `X to Y'. As per the version of eye witness particularly Prabhu Singh (PW 10) in the cross examination, the land in between A1 and A2 of Ex.P.12 belongs to deceased Madan and there is a boundary from place `X to Y'. In view of the site plan, the fields of accused and the deceased are adjoining and there is a boundary way between `X to Y', then, it can safely be said that portion `A', even if it originally belongs to someone else, could have been easily approached by the deceased and the theory of exercising the right of private defence cannot be accepted in the light of the above site plan, Ex.P.12. The right of private defence, being exception to culpable homicide amounting to murder, comes into operation when there is either some provocation or acting in good faith. Here in the present case, there is not an iota of evidence that deceased provoked the accused appellants. On the contrary, the evidence of the eye witnesses shows that when deceased reached at the field from the portion `X to Y', being boundary way, the accused appellants asked him as to how he entered into the field and they started inflicting blows when he was running and ultimately killed him. The second exception to the right of private defence is when offender acts in good faith and exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for 12. the purpose of such defence. In the present case, there is no question of any good faith for exercise of the right of private defence of person or property and on the contrary, all the four accused with a common intention attacked on deceased Madan Vaishnav causing multiple injuries resulting in his death, which cam be termed as acting in a cruel or unusual manner. 15. To bring the case u/sec.300 IPC, which is culpable homicide amounting to murder, the case must come within the four mental attitudes viz; firstly the intention of causing death; secondly the intention of causing such bodily injury as the offender knows to be likely to cause the death; thirdly that bodily injury is sufficient in the ordinary course of nature to cause death; and fourthly the offender knows that the act is so imminently dangerous that in all probability, it is likely to cause death without any excuse for incurring the risk of causing death or such injury as aforesaid. Here in the present case, the act of the accused appellants in inflicting repeated blows on deceased Madan, which were 15 in number, out of which four are dangerous to life, was such that it can safely be concluded that this case definitely falls under all the four corners of Section 300 IPC, which defines culpable homicide amounting to murder. 16. Lastly, the submission of the learned counsel appearing for 13. accused appellants Kanna and Duda that there was no common intention, is also devoid of force. The common intention is defined in Section 34 IPC, which postulates two things i.e. firstly the act must have been done by more than one person and secondly such act must cumulatively result in commission of offence in furtherance of the common intention. To attract the provisions of Section 34 IPC, it is not necessary that each one of the accused must assault. It is sufficient that they should share a common intention. This premeditation of mind or pre-arranged plan is gathered from the circumstances or incriminating facts. In the present case, the intention of four accused appellants to oust deceased Madan from the field and running towards him and inflicting repeated blows, clearly indicates that their motive was to kill deceased Madan, which is amply proved from the testimony of eye witnesses Prabhu Singh (PW 10) and Prakash (PW 17), supported by the testimony of Dr.Anis Ahmed (PW 19). The learned trial Judge has elaborately appreciated the evidence in its right perspective, while arriving at a conclusion of guilt of the accused appellants. 17. Consequently, all the four appeals are dismissed and the conviction & sentence of accused appellant Deva alias Devilal u/s.302 IPC and of accused appellants Duda and Kanna u/s.302 read with Sec.34 IPC to undergo life imprisonment along with a 14. fine of Rs.1000/- each and in default, to further undergo three months' S.I., recorded by the learned Addl. Sessions Judge (F.T.), Udaipur vide his judgment dated 3.11.2001, is maintained. The accused appellants are in jail, they will serve out the remaining part of the sentence, awarded. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS