1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : D.B. CRIMINAL APPEAL NO.165/1986 (Narayan & Ors. Vs. State) Date of Judgment : 19.03.2010 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Manish Shishodia with Mr. Jagat Tatia, for the appellants. Mr. Anil Upadhyay, Public Prosecutor. BY THE COURT: (Per Hon'ble Mr.Vyas, J.) The instant appeal was initially filed by six accused appellants who were convicted by Additional Sessions Judge, Chittorgarh vide judgment dated 19.4.1986 in Sessions Case No.10/85 by which learned Addl. Sessions Judge, Chittorgarh convicted the accused-appellants Gangaram (died during the pendency of this appeal), Narainram and Mangilal under Section 302/34 I.P.C. and sentenced to life imprisonment with fine of Rs.100/- and further S.I. of one month in default. Learned trial Court further convicted and sentenced all of the accused appellants for offence under Section 325 read with Section 34 I.P.C. for two years R.I. with fine of Rs.100/- and in default to further under go one month simple imprisonment and for offence 2 under Section 447 I.P.C. one month simple imprisonment for conviction under Section 324 read with Section 34 I.P.C. During the pendency of this appeal, main accused appellant Gangaram died on 14.9.1998, therefore, his appeal was abated. Likewise, appellant No.4, Smt. Dhapu W/o Gangaram also died, therefore, her appeal was also ordered to be abated vide order dated 13.9.1999. Now, in this appeal we are adjudicating the case of Narayan, Mangia, Smt. Mangi and Kamla. As per facts of the case, an FIR was registered on the basis of the written complaint Ex.P/1 filed by Mangilal before Superintendent of Police, Chittorgarh upon which case was registered at Police Station Kapasan on 18.3.1982 at 4.30 p.m. In the FIR, it is alleged that in the agricultural land of one Nana S/o Devaji Ahir situated at Village Binakiya Kalla, one Smt. Ganga @ Nani widow of Nanaji Ahir and his adopted son Udai Ram were cultivating crop of wheat in three bighas of land. The day on which occurrence took place, the crop was ready and in the morning of 18.3.1982, when Smt. Ganga and Nandu went in the agricultural field for cutting the crop at that time accused Ganga Ram, Mangia, Narayan, Mohan entered in her agricultural field armed with lathi and iron rod and first of all, the above 3 persons sent Smt. Dhapu W/o Gangaram, Kamli D/o Gangaram and Mangi D/o Gangaram with 'kulhadi' and wooden stick to assault Smt. Ganga and Nandu. When above women started quarrel with Smt. Ganga and Nandu soon after that accused appellant Gangaram, Mohan, Narayan and Mangia came there and started beating. At that time from the agricultural field of her neighbour one Naru (deceased) and Udai came for rescue. At that time, Gangaram, Mangia, Narayan and Mohan gave beating to Naru and Udai Ram and due to severe beating by them, they became unconscious on spot, thereafter, Naru died on spot immediately after sometime. Further, it is stated in the complaint that for the purpose of post-mortem, the body of Naru was taken to the Government hospital Chittorgarh. In the incident, Smt. Ganga received grievous injury upon her left hand and Smt. Nandu also received certain injuries. The above facts were informed to the complainant – Mangi Lal by Smt. Ganga and Smt. Nandu. Upon which the complainant Mangi Lal filed written complaint. Upon this written complaint, an FIR Ex-P/1 was registered for offence under Section 302, 307, 147, 149, 325 and 323 I.P.C. and investigation was commenced. After completing all formalities of investigation, the police filed challan against all the accused appellant and one juvenile accused Mohan under Section 148, 302, 307, 325 read with Section 149 I.P.C. The said challan was filed in the Court of Munsif & Judicial 4 Magistrate, Kapasan from where the case was committed to the Court of District & Sessions Judge, Pratapgarh. Later on for the purpose of trial the case was transferred to the Court of Addl. District & Sessions Judge, Chittorgarh where trial took place after registering case No.10/85. In the trial, the trial Court first of all framed charge against Gangaram for offence under Section 147, 302, 325, 323 and 447 I.P.C. and for all other accused the charge was framed for offence under Section 147, 447, 323, 325/149 and 302/149. After framing charges, an opportunity was granted to the prosecution to lead evidence and prosecution produced as many as 25 witnesses to prove the prosecution case. After recording statement of 25 witnesses from the side of prosecution, the statements under Section 313 Cr.P.C. of the accused appellants were recorded. In the statement recorded under Section 313 Cr.P.C. accused Gangaram (died) stated that he was in possession from last 50 years upon the land where occurrence took place and also having title over the land and refused to accept the allegations levelled by the prosecution witnesses. Accused Narayan contended in his statement recorded under Section 313 Cr.P.C. that he is cultivating the said land from last 25 years. Learned trial Court after recording the statement of accused appellants under Section 313 Cr.P.C. granted an 5 opportunity to the appellants to produce any evidence in their defense. In defense oral statement of DW-1 Dhula was recorded. Thereafter the matter was finally heard by the trial Court and finally delivered the judgment on 19.4.1986 whereby learned trial Court acquitted the accused appellant Gangaram for offence under Section 147, 302, 325 and 323 I.P.C. and accused appellants Narayan and Mangilal were also acquitted for offence under Section 147, 302/149, 325/149 and 323 I.P.C. and accused appellants Smt. Dhapu, Kamla and Mangi were acquitted for offence under Section 302/149, 325/149 and 323 I.P.C. but accused appellant Gangaram, Narayan and Mangilal were convicted for offence under Section 447, 302/34, 325/34 and 323/34 and accused appellant Smt. Dhapu, Kamla and Mangi were convicted for offence under Section 323/34 and 325/34. Thereafter, arguments were heard by the trial Court for imposing sentence and after hearing arguments on behalf of accused appellants, learned trial Court convicted all the accused appellant for offence under Section 447 I.P.C. and sentenced them for one month RI and all the accused appellants were convicted for offence under Section 325/34 and passed sentence for two years RI along with fine of Rs.100/- and in default to further undergo one month SI. Similarly, accused-appellants Ganga Ram (died), Narayan and Mangilal were convicted for offence under Section 302/34 I.P.C. and passed sentence for life imprisonment along 6 with fine of Rs.100/- and in default to further undergo one month SI and for offence under Section 323/34, it is observed by learned trial Court that no separate punishment is required because accused appellants have already been convicted for higher offence under Section 325/34 I.P.C., therefore, it is treated to be merged in the sentence awarded for committing offence under Section 325/34. We have heard learned counsel for the parties and perused the entire evidence on record. At the threshold, learned counsel for the appellants submits that all the accused-appellants are not disputing the incident and they are challenging the conviction on merit that learned trial Court has erroneously held the appellants Narayan and Mangi for committing offence under Sections 302/34 and for offence under Section 325/34 I.P.C., so also committed an error while convicted the accused-appellants Smt. Mangi and Smt. Kamla for committing offience under Section 325/34 I.P.C. The main contention of learned counsel for the appellant is that both the complainant and accused party are family members and admittedly Gangaram who died during the pendency of the appeal was having title over the land and he was only Khatedar of the land in question. In this case, along 7 with deceased Naru, three persons also received injuries and their statements were recorded by the trial Court, the names of those witnesses are PW-8 Udai Ram, PW-9 Smt. Ganga and PW- 10 Smt. Nandu. Learned trial Court has relied upon the testimony of these three injured eye witnesses and held the appellants are guilty for committing offence under Section 302/34 I.P.C. and 325/34 I.P.C. but as per learned counsel for the appellants the finding given by the trial Court is erroneous on the ground that although incident took place in which one Naru died and three persons were injured but upon perusal of their statements, it emerges that there was no intention to kill but quarrel was with regard to title and possession of agricultural land for which accused appellant Ganga Ram (died) was having title and he was only khatedar of the land in question. The case of the prosecution is that the land in question was in possession of one Nana and PW-9 Smt. Ganga W/o of Nana was cultivating the said agricultural land with help of PW-8 Udai Ram and the crop of wheat was ready in the agricultural field and at the time of cutting the said crop the occurrence took place but this finding is perverse and contrary to evidence on record. Learned counsel for the appellants vehemently argued that upon plain reading of statement of PW-8 Udai Ram, PW-9 Smt. Ganga and PW-10 Smt. Nandu injured eye witnesses, 8 it will reveal that there was no previous enmity between the party, more so, all the accused and complainant party are family members and there was dispute in the family with regard to agricultural land where occurrence took place. Therefore, as per testimony of these injured eye witnesses, it can be said that there was no intention to kill anybody. More so, as per oral statement of all the eye witnesses, the deceased Naru came on spot for rescue of injured eye witnesses Smt. Ganga and Smt. Nandu, therefore, this fact itself speaks that occurrence took place due to sudden provocation and in the free fight, the injuries were received by the deceased as well as by injured eye witnesses but there is no evidence to show intention to kill any person by the accused party. Therefore, learned trial Court has committed a gross error while convicting the accused appellants Ganga Ram who died during the pendency of the appeal, Narayan and Mangia for offence under Section 302/34 I.P.C., so also, has committed an error for convicting all the accused appellants for offence under Section 325/34 I.P.C. The evidence adduced by the prosecution can be discredited for the purpose of holding liable the accused appellants Narayan and Mangia for offence under Section 302/34. Similarly, accused appellants Smt. Kamla and Smt. Mangi have been convicted erroneously for committing offence under Section 325/34 I.P.C. According to learned counsel for the appellant the case does not travel 9 beyond Section 324 read with Section 34 and 323 read with Section 34 I.P.C. for all the accused appellants. More so, the finding of learned trial Court with regard to committing offence by Smt. Kamla and Smt. Mangi for committing offence under Section 325/34 is also erroneous because there is no allegation of any of the eye witnesses that both these accused caused any grievous injuries to any of the injured including deceased. Therefore, at the most they can be held responsible for offence under Section 323/34 so also for tress pass under Section 447 I.P.C. In this view of the matter, learned counsel for the appellants submits that the finding of learned trial Court with regard to committing offence under Section 325/34 I.P.C. by all the accused appellants is erroneous because there is no specific allegation against the accused appellant Dhapu who died during the pendency of the appeal and Kamla and Mangi that they have inflicted any grievous injury to the injured. Therefore, at the best, they can be held guilty for offence under Section 323/34 and for offence under Section 447 I.P.C. Learned counsel for the appellants argued for accused Narayan and Mangia that there is no evidence on record to prove the fact that there was any intention or motive behind the offence alleged to be committed by these appellants. The finding on record shows that deceased Naru came on spot when 10 quarrel was going on in between the injured Smt. Ganga and Smt. Kamla and accused party and at that time in sudden provocation, the injuries were caused by Ganga Ram upon the head of Naru which resulted into his death, therefore, any incident took place on spur of moment then it can be said that there was no intention to kill the deceased, therefore, the main ingredients of murder which is intention and motive is absent in this case. Upon perusal of injury report Ex-P/13, Ex-P/16 and Ex-P/12 of the injured PW-8 Udai Ram, PW-9 Smt. Ganga and PW-10 Smt. Nandu, it emerges that there was no intention of the accused to kill and quarrel took place due to dispute of land where occurrence took place in between the family members. According to accused appellants, the complainant party was trying to make encroachment upon the said land and according to complainant party, the land was belonging to whole of the family and all the family members were having share in the land in question which was in possession of complainant party. In this view of the matter, while challenging the conviction of murder and sentence awarded to the appellants, learned counsel for the accused-appellants submits that finding of learned trial Court for committing offence under Section 302/34 I.P.C. is contrary to the evidence on record because prosecution has not proved its case for committing offence under Section 302 read with Section 34 I.P.C. by the accused Narayan and Mangia. 11 Likewise, as per evidence on record, the accused appellants Smt. Kamla and Smt. Mangi cannot be convicted for offence under Section 325/34 I.P.C. because there is no evidence on record to show that any grievous injury was inflicted by them to any of the injured and deceased. In this view of the matter, it is prayed that the prosecution case does not travel beyond committing offence under Section 323/34 and 324/34 I.P.C., therefore, while quashing the judgment rendered by trial Court impugned in this appeal the conviction arrived at by the trial Court may be altered from offence under Section 302/34 I.P.C. to 325/34 I.P.C. for accused Naraya and Mangia and conviction against Smt. Kamla and Smt. Mangi may also be altered from Section 325/34 to 323/34 and their conviction for tress pass may be maintained and sentence awarded to all the accused appellant may be reduced to the period already undergone by them in the custody. Per contra, learned Public Prosecutor vehemently argued that prosecution has adduced sufficient and cogent evidence on record to prove its case and learned trial Court has correctly assessed the credibility of the oral statement of all the witnesses including eye witnesses and has rightly gave finding that three accused appellants namely Ganga Ram who died during pendency of appeal so also Naraya and Mangia committed offence under Section 302/34 I.P.C., and under Section 325/34 12 I.P.C. Therefore, the judgment impugned does not require any interference because finding with regard to committing offence by the accused Narayan and Mangilal under Section 302/34 and 325/34 I.P.C. are based upon trustworthy evidence of prosecution. Learned Public Prosecutor also invited our attention towards the fact that accused appellants Smt. Kamla and Smt. Mangi have rightly been convicted for offence under Section 325/34 I.P.C. and there is no error in the judgment rendered by trail Court because learned trial Court has assessed the prosecution evidence with due application of mind and has rightly held accused appellant for committing offence under Section 325/34 and for other offences. Therefore, this appeal deserves to be dismissed. After hearing both the parties, we have considered rival submissions made by the parties and assessed the evidence on record. During the pendency of this appeal, the appellant No.1 Gangaram died, so also appellant No.4 Smt. Dhapoo w/o Ganga Ram also died, therefore, the appeal filed by them was abated vide order dated 14.9.1998 and 13.9.1999 respectively. Now, we are adjudicating this appeal for remaining appellant No. 2 Narayan, appellant No.3 Mangia, appellant No.5 Smt. Mangi 13 and appellant No.6 Kamla. Upon perusal of statement of injured eye witnesses PW-8 Udai Ram, PW-9, Smt. Ganga and PW-10 Smt. Nandu, it emerges that there was dispute with regard to land where PW-9 Smt. Ganga and PW-8 Udairam were cultivating the agricultural field. PW-8 Udai Ram has deposed in this statement that on the date of occurrence, in the morning, the accused appellants were beating his wife PW-10 Smt. Nandu and PW-9 aunty Smt. Ganga. At that time, he went on spot with deceased Naru for rescue at that time, Ganga Ram inflicted injury upon head of Naru and due to that injury Naru fell down. Thereafter, he was also assaulted by accused party. It appears from his statement that dispute was in between family members and occurrence took place suddently when his wife Smt. Nandu and aunty Smt. Ganga started cutting crop of wheat upon which the accused party was also claiming their right. Meaning thereby, quarrel was with regard to encroachment of land and tress pass and cultivating the land in question by the complainant party. We have assessed the evidenciary value of injured eye witnesses PW-8 Udai Ram, PW-9, Smt. Ganga and PW-10 Smt. Nandu and finding of learned trial Court. In our opinion, there is strength in the argument of learned counsel for the appellants that the learned trial Court has erred in law in relying upon the testimony 14 of prosecution witnesses specially when all the three eye witnesses are close relatives and interested witnesses and have contradicted themselves and impute upon their version before the police. Therefore, at the time of deciding case, it was the duty of the learned trial Court to assess the evidence with care and caution when there was no intention and quarrel took place suddenly, then obviously, at the time of giving finding by learned trial Court, the proper assessment of the evidence was to be made. Learned counsel for the appellants is not disputing the incident but has prayed that finding with regard to committing offence under Section 302/34 I.P.C. by accused Narayan and Mangia is erroneous and likewise finding with regard to Section 325/34 I.P.C. by accused Smt. Kamla and Mangi is also erroneous because even if the evidence on record is accepted in its totality then also no offence for aforesaid Sections is made out. It is of course that in the incident injuries were received by three eye witnesses so also by the deceased but it is important fact that deceased Naru was not on spot and he himself came on spot when quarrel took place in between the ladies of accused party and complainant party. This fact itself is sufficient to arrive at with the finding that learned trial Court has committed an error while holding the accused appellant Narayan and Mangia for offence under Section 302/34 I.P.C. At the most, they can be held liable for offence under Section 324/34 I.P.C. because 15 deceased Naru died due to injury caused by the accused Gangaram upon his head. In this view of the matter, we are of the considered opinion that in the facts and circumstances of the case and upon assessment of the evidence on record, no offence under Section 302/34 is made out against the accused appellants Narayan and Mangia because admittedly there is no specific allegation against them to inflict any specific injury to the body of deceased Naru, therefore, the conviction of accused appellants Narayan and Mangia for offence under Sections 302/34 I.P.C. is quashed and set aside while maintaining their conviction for offence under Section 325/34 I.P.C. and for other remaining offence. With regard to conviction of accused appellants Smt. Mangi and Smt. Kamla, upon assessment of statement of all the witnesses including eye witnesses PW-8 Udai Ram, PW-9, Smt. Ganga and PW-10 Smt. Nandu, we are of the opinion that there is no allegation against these accused appellants that they have inflicted any grievous injury to any of the injured including deceased, therefore, upon assessment of their role in the incident, we are of the opinion that their conviction for offence under Section 325/34 I.P.C. is erroneous and learned trial Court has committed an error while holding guilty accused appellants Smt. Kamla and Smt. Mangi for offence under Section 325/34 16 I.P.C., therefore, their conviction is also hereby quashed and set aside and their conviction is altered from offence under Section 325/34 I.P.C. to offence under Section 323/34 I.P.C. while maintaining other part of the conviction for offence under Section 447 I.P.C. On the basis of above finding given in this judgment, this appeal is party allowed. The conviction of accused appellants Narayan and Mangia for committing offence under Section 302/34 I.P.C. is hereby quashed but remaining part of their conviction for offence under Section 325/34 I.P.C. is maintained. Both these accused appellants are hereby sentenced to imprisonment already undergone by each of them and fine imposed by trial Court which is Rs.100/- each is enhanced to Rs.1000/- each. The conviction of accused appellants Smt. Kamla and Smt. Mangi for offence under Section 325/34 I.P.C. is hereby altered to offence under Section 323/34 I.P.C. and other part of conviction against them is hereby maintained and they are sentenced to imprisonment already undergone by each of them and fine imposed against them by trial Court which is Rs.100/- each is hereby enhanced to Rs.500/- each. All the accused appellants are directed to deposit the amount of fine in the trial Court within a period of three months from the date of this judgment. The accused appellants 17 are on bail, therefore, their bail bond are cancelled and sureties are discharged. (GOPAL KRISHAN VYAS), J (A.M. KAPADIA), J arun