1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CRIMINAL APPEAL No.72/1987. : : Fataram & Ors. Vs. State of Rajasthan. : : Date of Order 19.9.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Praveen Balwada with Mr.Suresh Dhenwal with Mr.Deepak Kumar Soni for the appellants. Ms.Sadhna Bhatt, P.P.for the State. Reportable Heard learned counsel for the parties. 2. This appeal is directed against the judgment dated 31.1.1987 passed by the learned Sessions Judge, Jhunjhunu whereby the accused-appellants were convicted for offence under Section 148 IPC and sentenced to rigorous imprisonment for one year with a fine of Rs.200/-, in default whereof to further undergo rigorous imprisonment for one month and were also convicted for offence under Section 307 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for five years with a fine of Rs.500/-, in default whereof to further undergo rigorous imprisonment for two months. 2 3. The factual matrix of the case giving rise to this appeal is that a written report was submitted by one Bajrang Lal before Police Station Udaipurwati on 30.5.1984 alleging therein that his son Girvar Singh had gone to the residence of Bhagwana Ram S/o Bijaram, village Chirana to complain about their goats, who entered into his agriculture field and damaged the crop. He was beaten by Maglaram, Bhagwana Ram, Fataram, Fularam, Baluram, Bhagoti, Bholdi, and the wives of Bhagwana Ram and Fataram, who were armed with 'gandasis' and 'lathis'. This incident was witnessed by Khangaram S/o Chokaram, Barisal Singh S/o Jaman Singh Rajput, Mangu Singh S/o Jaman Singh. Girvar Singh has received injuries on his head. It is only when Ram Singh informed, that the complainant went to the scene of the occurrence. On the basis of the aforesaid written report, a regular first information report was lodged for offence under Sections 147, 148, 307 & 323 IPC and investigation commenced. After completion of investigation, the police filed challan against the five accused-appellants herein and also against the Smt. Chuki Devi, Smt. Molari, Smt.Bhagwati and Smt. Shoyapali. The learned trial Court however, acquitted all the aforesaid ladies holding that offence against them was 3 not proved beyond reasonable doubt and convicted the accused-appellants for offences indicated above. Hence, this appeal. 4. I have heard Shri Praveen Balwada learned counsel for the appellants and Ms.Sadhna Bhatt, learned Public Prosecutor for the State. 5. Shri Praveen Balwada, learned counsel for the accused-appellants has taken me through the statements of the witnesses specially the statements of the eye-witnesses named in the first information report. He has argued that the so-called eye-witnesses are in fact planted witnesses, none of whom was present at the scene of occurrence. When the same set of evidence has been found to be doubtful in so far as the charge against the four female-accused is concerned, it was not safe to convict the accused-appellants on the basis thereof. Learned counsel referred to the statement of PW.1 informant Bajrang Singh and argued that the said witness has admitted in his statement that Berisal Singh and Mangu Singh are the sons of his real uncle Jagan Singh and they share the common residence with him. This witness cannot be expected to speak the truth. The only independent 4 witness Khangaram who was named in the first information report, was examined as PW.7 and he has turned hostile. It was argued that PW.2 Ram Singh in any case has stated that he arrived after the incident. The genesis of the incident was different than the one which has been sought to be made. In fact, injured Girvar Singh with one Giriraj Singh, who were heavily drunk, tried to ravish Smt.Chuki Devi, aged 20, wife of the accused-appellant Fataram. This was opposed by Smt.Chuki Devi and other family members. When injured Girvar Singh tried to flee from the place of the incident, he in this process was hit by an electric pole and sustained injuries. It was argued that the statement of PW.10 Dr.Bhagwan Singh in so far he has asserted that injuries No.1, 2 & 3 received by injured Girvar Singh were sufficient in ordinary course of nature to cause death, cannot be accepted because in the injury report Ex.P/16, which was prepared on the very day of the incident, he himself opined that injuries No.1, 2 & 3 were simple in nature. Subsequently, the aforesaid opinion was expressed by him on the basis of Ex.P/17, which was a letter written by him to SHO thereafter on 9.6.1984. PW.10 Dr.Bhagwan Singh has admitted that he sent x-ray plats with the patient when he was referred to SMS Hospital, Jaipur and further admitted that he did not see either the x-ray report or 5 the patient himself when he wrote letter Ex.P/17. Learned counsel therefore argued that Ex.P/17 cannot be accepted as admissible in evidence inasmuch as opinion given by PW.10 Dr.Bhagwan Singh on the basis of such document which he himself admitted having written without examining either the injured or the x-ray plant/report, cannot be accepted as admissible in evidence. Learned counsel submitted that the injuries at the maximum can be accepted to be simple in nature and in that event, the offence against the accused- appellants cannot be proved beyond Section 324 IPC. Learned Counsel for the appellants also made reference to the statements of Smt.Chuki Devi and her husband Fataram, recorded under Section 313 Cr.P.C. Smt. Chuki Devi in her statement has asserted that when she was watering the plants in 'bari', the injured Girvar and Gordhan, who were under the influence of liquor, came there and started assaulting her sexually. She then started crying. Hearing this her husband Fataram and Harphool came there. Gordhan fled from there and Girvar in the process of running was hit by an electric pole and thus sustained injuries. Her husband Fataram in his statement under Section 313 Cr.P.C. stated that Girvar Singh and Gordhan Singh were teasing her wife and when he opposed them they started beating him. 6 He got himself medically examined. It was submitted that in defence no oral evidence was produced on behalf of accused-appellants, but two medical reports of Harphool and Fataram were submitted along with the certified copy of the cognizance order on behalf of the accused-appellants. Learned counsel, therefore, submitted that appeal may be allowed and accused-appellants may be acquitted. Ms.Sadhna Bhatt, learned Public Prosecutor opposed the appeal and argued that accused-appellants have rightly been convicted for offence under Sections 148 & 307 read with Section 149 IPC. Even if the doctor in the injury report initially described injuries No.1, 2 & 3 as simple in nature but at the same time advised x-ray. Subsequently on 9.6.1984 he in the report sent to SHO described these injuries sufficient in the ordinary course of nature to cause death. This document was proved by his statement. Offence under Section 307 IPC thus stood proved against the accused-appellant. It was argued that minor discrepancies in the statements of the witnesses cannot be made basis for discarding the entire prosecution story. Accused-appellant Fataram has not proved the injuries alleged to have been sustained by him. It was argued that the statements of PW.3 Berisal Singh and PW.11 Mangu Singh clearly proved the 7 role assigned to each of the accused. Both these witnesses have stated that all the accused-appellants were together in mercilessly beating the injured Girvar Singh. According to these witnesses, Bhagwana and Mangalram inflicted gandasi blow on the head of the injured, as a result of which he fell down and rest of the accused caused lathi blows on him. Charge of offences under Section 148 IPC as also Section 307 read with Section 147 was clearly proved. 6. I have given my thoughtful consideration to the arguments aforesaid and perused the material on record. 7. Consideration of all the aforesaid arguments and the evidence on record clearly indicates that genesis of the incident has been sought to be changed by the prosecution. This fact assumes significance because the incident had taken place close to the house of the accused. Even then, what is proved from the statements of the prosecution witnesses, specially PW.3 Berisal Singh and PW.11 Mangu Singh, is that the injuries in question were received by injured Girvar Singh in the same incident in which the accused-appellants were involved and two of them received injuries. There are three injuries on the head of the injured 8 Girvar namely; injuries No.1, 2 & 3, which have been assigned by PW.3 Berisal Singh and PW.11 Mangu Singh to accused-appellants Manglaram and Bhagwana stating that they caused these injuries on his head by use of gandasi. PW.3 Berisal Singh has further stated that after Girvar Singh fell down, Bhagwati and Bholari, the female accused since acquitted by the trial Court, caused injuries by 'datali' to him thereafter accused Fataram, Baluram and Harphool inflicted 'lathi' blows as also the wives of Fataram and Baluram inflicted 'lathi' blows. Almost the same statement has been made by PW.11 Mangu Singh, who too has assigned the head injuries to accused Bhagwana and Manglaram and other injuries to rest of the accused. Even if they are relative witnesses, their testimony cannot be completely discarded to hold that accused-appellants were not involved in the incident. 8. What is to be seen is whether in view of the nature of evidence specially in view of the medical evidence, conviction of the accused-appellants for offence under Section 307 read with 149 IPC could safely be recorded. Ex.P/16 is injury report according to which Girvar Singh received seven injuries. While first two injuries were incised 9 wounds, injury No.3 even though over scalp in mid line anteriorly on fronto parietal region is recorded as lacerated wound but all these injuries have at the same time have been recorded as simple in nature. The Medical Officer in the injury report also advised x-ray for these injuries. Injury No.4 was also recorded as lacerated wound and injuries No.5 to 7 were recorded as contusion, all on non-vital part of the body. Though injury report was prepared on 30.5.1984, PW.10 Dr.B.S.Shekawat sent a communication to SHO, Udaipurwati on 9.6.1984, in which for the first time he has written that injuries No.1 & 2 were sufficient to cause death because they were caused by sharp edged weapon. In his statement before the Court, he stated that he had prepared the letter Ex.P/17 and sent the same to SHO without examining either the injured Girvar Singh or the x-ray plat. Articles 3, 4 & 5 were x-ray plats, which he had already sent with the injured while referring him to SMS Hospital, Jaipur. In the cross- examination, he sought to explain his conduct by stating that he did not record in the injury report Ex.P/16 whether the injuries were dangerous to life because, it was possible for the patient to completely recover from the injuries. He further admitted that after 1 & 2nd June, 1984 he did not see Girvar Singh any more and when he wrote letter Ex.P/17 he 10 did not examine Girvar Singh. He also admitted that articles 3, 4 & 5 were neither examined him nor did he prepare any report by the time he framed his opinion Ex.P/17 on that basis. It is indeed surprising that how when he advised x-ray examination of the injured for these injuries, he in the injury report Ex.P/16 opined injuries Nos.1 & 2 to be simple in nature. Subsequent opinion of such Medical Officer, which was prepared admittedly ten days after the preparation of injury report and without examining either the injured or the x-ray plats cannot be made basis for conviction under Section 307 IPC, either simplicitor or with the aid of Section 149 IPC. But his statement only to the extent of existence of injuries on the basis of initially prepared injury report Ex.P/16 and to the extent of opinion that such injuries were simple in nature can be believed. That being done, the offence against accused-appellants can hardly be proved beyond Section 324 IPC of causing voluntarily hurt by means of any instrument, which when used as weapon of offence, is likely to cause death. In the result, this appeal is allowed in part. While conviction of the accused-appellants for offence under Section 148 IPC is maintained, their conviction under Section 11 307 read with Section 149 IPC is altered to one under Section 324 read with Section 149 IPC. The sentence of one year awarded under Section 148 IPC is maintained with similar amount of sentence being awarded under Section 324 read with Section 149 IPC. The incident in the present case had taken place as far as for back in 30.5.1984, the accused-appellants were enlarged on bail immediately after their conviction. They were also on bail during the trial. Nothing is on record that they ever misused the liberty granted to them. One of the accused-appellant Manglaram is now 72 years of old. Other accused-appellants who at the time of incident were young, are now in the middle ages. They are all now well settled in life. There are no other recorded criminal antecedents of the accused-appellants. The learned trial Court declined to extent them benefit of probation on the ground that such benefit could not be extended to the accused convicted for offence under Section 307 IPC. Now that their conviction has been altered to one under Section 324 IPC, ends of justice would be met if they are extended the benefit of probation. The appeal is, therefore, allowed in part and the appellants (1) Fataram S/o Manglaram, (2) Baluram S/o Moolaram, (3) Manglaram S/o Binjaram, (4) Bhagwana S/o 12 Manglaram and (5) Harphool S/o Manglaram are directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on their furnishing a personal bond in the sum of Rs.10,000/- each on the condition of maintaining good conduct with the surety in the like amount to the satisfaction of the trial court with the stipulation that they shall maintain peace and be of good behavior for a period of two years and shall appear before the court during the aforesaid period to receive and undergo sentence as and when called and shall not indulge again in any such offence in future. (MOHAMMAD RAFIQ)J. A.Arora/-