S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Ramzan Khan V. 1. Dhar Singh. 2. Mangu Singh. 3. Chhitar Singh. 4. Bhanwaru. S. B. CRIMINAL APPEAL NO. NO.15/89 against the Judgment dated 28.03.1987, passed by Shri Shanker Lal Jain, Sessions Judge, Merta, in Sessions Case No. 36/84. DATE OF JUDGMENT May 1st, 2009 PRESENT HON'BLE MR. JUSTICE C. M. TOTLA Mr. Gaurav Singh & Mr. Sandeep Mehta, for Appellant(s). Mr. Anish Burat, PP, for the State-respondent No.5. None present for respondent no.1 to 4 BY THE COURT: Appellant the complainant of Sessions Case No.15/89 aggrieved of respondents acquittal as per above judgment has preferred this appeal. Heard counsel for the complainant and learned Public Prosecutor. Alleged incident as per complainant and also prosecution is that on 27.7.83, at 11.45 am, complainant Ramzan Khan s/o. Gulab Khan submitting written report Ex.P-8 at police station, Thawala, District – Nagaur, informed that on that day, 27.7.83, at about 8.30 in morning, he, his father Gulab Khan and uncle Alam Khan were keeping watch at their field “Dotiana” and there came Dhar Singh, Mangu Singh, Chhitar Singh, Manohar, Gopal, Bhanwaru, Sikander Khan, Mohammu Khan and Gafur Khan with axe and lathis in their hands who tried to make rainy water S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) filled in their field to flow complainant's field by “phoarana” (breaching and removing obstruction) and when prevented from doing so, Mangu Singh inflicted blow of Kassi on head of Alam Khan and Chhitar Singh gave blow of axe at face of Gulab Khan and all beating them by lathis grievously injuring Gulab Khan and Alam Khan ran away. As per endorsement of SHO, on this report, complainant Ramzan told that quarrel occurred because of “Dhora” and they have 1/4th share in this joint well and “Dhora”, whereas land is partitioned one and that litigation as also proceedings under Section 107 Cr.P.C., are on in between the parties. - Registering FIR No.53/83 Ex.P/10, for the offences of Sections 147, 148, 149, 323 and 307 IPC. SHO PW/9 inspecting place of occurrence, seized two lathis, an axe handed over by Ramzan PW/1 and also seized blood-stained clothes of injured Alam Khan and Gulab Khan. Injured was medically examined and injury reports of Ramzan Khan, Gulab Khan and Alam Khan respectively are Exs. P-2, P-3 and P-7. Ex.P-4 x-ray report and Exs. P-5-6-9 are treatment slips of Gulab Khan who had linear fracture of temporal parietal region. Articles examined at Laboratory and human blood was found on “Kawadia” and clothes. After investigation, police submitted negative report that no case for prosecution is made out, then on complainant's protest petition, treated as complaint, statements of complainant and Gulab Khan, Alam Khan, Hajari, Chhoti and of medical officer were recorded – the learned Magistrate taking cognizance for the offences under Sections 148, 323, 324 and 307 read with Section 149 IPC, registered criminal case against respondents No. 1 to 4. On committal, registered is the Sessions Case No.36/84 - State v. Dhar Singh & Others. Accused respondents Dhar Singh charged for the offences of S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) Sections 147, 323, 307, 324/149 and 323/149 IPC, Bhanwaru charged for the offences of Sections 147, 323, 307/149, 324/149, 323/149 IPC and accused Mangu Singh and Chhitar Singh charged for the offences of Sections 148, 307/149, 324/149 and 323/149 & Section 324 IPC, claimed trial. Among the ten prosecution witnesses examined Ramzan PW 4, Gulab Khan PW 5, Alam Khan PW 1 are injured. Hajari PW 6 and Chhoti PW/2 eye witnesses - Dr. Jetha Ram PW 3, Subhash Chandra Glupta PW 7, Dr. B.L.Bhatiya PW 8 are Doctors who have proved injuries and PW 10 Dr. B.D.Kaviya proves signatures of Dr. G.L.Verma on injury report Ex.P-5 - PW 9 Shaktidan is SHO I.O. Respondents in their explanation stated that complainant-party entering Bara of and in possession of respondents severely beating them killed Manohar Singh – Respondent Chhitar Singh state that Gulab Khan while inflicting injury to him himself felling down injured himself and Alam Khan injured him (Chittar Singh) at head by blow of axe so he snatching axe sweeped it so Ramzan injured a little. Mangu Singh DW/1 examined in defence state that on hearing quarrel be reaching there intervened and as complainant-party has severely beaten respondents and Manohar Singh, he lodged FIR Ex.D/12 at police station. Learned Sessions Judge arrived conclusion that appellant complainant and accomplices inflicting injuries to Manohar Singh and others, caused death of Manohar Singh and to escape initiated proceedings. Also observed is that deciding other Sessions Case No.43/83 (cross-case) for FIR of the same incident, Alam Khan is held guilty of inflicting fatal injuries on head of Monohar Singh and others are held guilty of injuries to Dhar Singh, Chhitar Singh and Manohar Singh. S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) Also held is that if respondents have inflicted injuries to Gulab, Ramzan or Alam Khan, the same was for self defence and accordingly acquitted the respondents. Learned advocate for complainant extensively reading statements of witnesses argued that complainant and his father are and were in possession of the land – order of revenue court in their favour – field of respondent at higher level to that of complainant, filled with rainy water and respondents tried by breaching dhora and demolishing earth wall to make water flow towards field of complainant and if this occurring complainant's crop would have been totally destroyed– so respondents were prevented from doing so – then respondents coming in the field of appellant with axe and lathis severely injured them. Argued on behalf of the appellant is that respondents were clearly aggressors who voluntarily inflicted severe injuries to complainant-party and in case, some injuries inflicted to respondents, the same were in private defence and respondents being aggressors have committed offence. Submitted that though charges against them included that of death of Manohar Singh, but they are acquitted of all charges by this Court vide judgment dated 22.10.03 in S. B. Criminal Appeal No.118/87. Learned Public Prosecutor, defending judgment of learned Judge, argued that of the respondents-party, Manohar Singh died of the injuries inflicted to him and other two sustained grievous injuries – though complainant and others acquitted in appeal, but neither is held, nor appears that any respondent committed any act of aggression or trespass. Learned Public Prosecutor argued that injuries inflicted to and sustained by respondent and Manohar Singh are much more severe in relation to injuries to complainant Gulab Khan and Alam Khan. S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) Considered rival arguments and perused record and judgment impugned. On the request of the appellant calling record of Appeal No.118/87, the judgment perused. Proved and almost admitted is that for the same incident, other FIR No.52/83 was registered at the same police station. Appeal at hand is for FIR No. 53/83. From the evidence of Doctor the Medical Officers as supported by related oral evidence, proved are the injuries :- On person of Ramzan PW/4 :- “(1) Reddish Bruise with swelling 3” x 3/4” - Rt. Forearm middle part and oblique. (2) Reddish Bruise 1-1/2” x 3/4” - Rt. arm middle lateral aspect (3) Reddish Bruise with abrasion 2-1/2”x 1-1/2” over the left side chest 1” below the left clavicle – simple – Blunt. (4 ) Abrasion 1/4” x 1/8” over the left forearm above left wrist joint . “ Gulab Khan PW/5 :- “(1) Incised wound filled with clotted blood. Clean cut well defined margins, smooth – 2- 3/4” x 1/4” x 1/4” x 1/2” lat -Depth upto left zygomatic bone – Extending from lateral and middle part of left side Nose to lower part of eye (zygomatic bone) – cutting weapon – sharp (2) Abrasion 3/4” x 1/2” - left wrist joint post aspect – Simple – Blunt. (3) Reddish Bruise with swelling 3-1/2” x 2” over the parietal temporal region. Just above the left pinna bleeding from the ear present – Haematomosis – Blunt.” Ramzan Khan PW/4 I.R- Ex.P/1 2.55 PM dated 27.7.81 – simple object – within 24 hours Ex. P/2 27.7.83 2.10 pm Referred to Ajmer for X-ray and specialised treatment/ opinion S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) Found was linear fracture of left parietal and temporal region – x- ray report Ex.P-4, so injury of head grievous, caused by sharp object and also left ear perforation with having defect. Alam Khan PW/1 :- “(1) Incised wound filled with clotted blood margins clear cut, well resined – 2- 1/4” x 1/4” depth upto periostenm – over the right parietal eminence horizontally – sharp cutting weapon . (2) Abrasion – 1/2” x 1/8” over the left pinna – simple – Blunt . (3) Reddish Bruise 3/4” x 1/2” over the right shoulder joint upper part – Simple – Blunt. (4) Reddish Bruise 1-1/4” x 1/2” - left arm latero posterior – Simple – Blunt. (5) Reddish Bruise 1” x 1/2” - left wrist joint lateral aspect – Simple Blunt. “ Dhar Singh, Respondent no.1 :- “(1) Lacerated wound with filled clotted blood – 1 1/4” x 1/4” x 1/8” - upper and behind the right pinna (right side) (2) Lacerated wound filled with clotted blood – 3/4” x 1/8” x 1/8” - left side occipital region . (3) Lacerated wound 1 1/4” x 1/8” x 1/8” - left parietal region – Blunt. (4) Reddish Bruise with Abrasion 2” x 1” - right shoulder joint. (5) Reddish Bruise 2” x 1/2” - right forearm. Ex. P/6 27.7.83 2.40 pm Referred to Ajmer for X-ray and specialised treatment/ opinion No grievous Ex. D/5 27.7.83 1.40 pm All simple of blunt within 24 hours Referred S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) (6) Reddish Bruise 1 1/2” x 3/4” over left knee joint lat aspect . (7) Reddish Bruise 1” x 1/2” over the right thigh lat upper part . Chhitar Singh, Respondent no.3 :- “(1) Lacerated wound filled with clotted blood – 1” x 1/4” x 1/4” - left side of forehead vertically oblique . (2) Lacerated wound filled with clotted blood 1 1/4” x 1/2” x 1/4” - left parietal region. Vertically oblique . (3) Reddish Bruise 3 1/2” x 2” over the right shoulder (4) Reddish Bruise 1 1/2” x 3/4” over left arm . (5) Reddish Bruise 1 1/4” x 1/2” over the right forearm. “ Manohar Singh, the deceased who is son of Dhar Singh, the respondent :- “(1) Lacerated wound filled with clotted blood on cleaning bleeding irregular and lacerated margins plus sign of cerebral compression present 1 3/4” x 1/4” x 1/4” over the occipital region of scalp 1 1/2” above the occipital protra bence oblique in direction- Grievous – Blunt weapon. (2) Abrasion 3/4” x 1/2” over left clavicle middle part – Simple – Blunt. (3) Abrasion 1/4” x 1/4” over right side nose at middle part – Simple - Blunt. (4) Abrasion 1/2” x 1/4” over the right side chin – Simple – Blunt. “ Ex. D/3 27.7.83 1.00 pm All simple of blunt within 24 hours Ex. D/2 27.7.83 11.50 am within 24 hours Referred to Ajmer hospital Died on 28.7.83 at Ajmer hospital S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) Above description of injuries makes it clear that relatively injuries on the persons of respondent party including two respondents, were more and severe. Though Shri Gulab Khan, father of complainant, had fracture at left temporal parietal region, but the same was linear, whereas on head of Manohar Singh were injuries resulting to his death in a day and as per description of injury report, there was cerebral compression and the patient was unconscious. Respondent Dhar Singh too had three lacerated wounds at head, though simple. Accordingly, the inference is that in the quarrel more number and severe injuries inflicted to respondent side and Manohar Singh son of Dhar Singh succumbed to injuries. As per complainant incident occurred because respondents tried to make rainy water filled in their field to flow toward and in complainant's filed by demolishing dhora and breaching obstruction and, had water flown in complainant's field, it would have ruined their crops. Proved according to evidence of Ramzan PW/4 and of SHO PW/3 is that PW/4 lodged written report of the incident at 11:45 AM same day - per endorsement of SHO an the FIR Ramzan told him that land is partitioned and theirs is one fourth share in well and dhora and quarrel occurred due to dispute of dhora about which revenue and proceeding under Cr.P.C also are pending. It may be mentioned here that though the reason as described in evidence was to make an divert stream of rainy water to field and crops of complainant. The same do not find mention in FIR. I.O. PW/9 who inspected place of occurrence very clearly say and so also appears S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) from memo and site plan Ex.P/11 that level of land of Labu Khan having crop was little higher to level of field of appellant. A perusal of site plan Ex.P/2 read with oral evidence makes it clear that level of land of appellant is not low to that of land of respondents. As is observed, this reason is not mentioned in FIR, so reasons are to doubt whether genesis of occurrence is not rightly disclosed. From the evidence of Gulab Khan PW/5, complainant PW/4 injured Alam Khan it surfaces and also so say witnesses PW/2 and PW/6 that half of one fourth share of total land was purchased by them from Ladu Khan about 2-3 months prior to this occurrence. Ramzan Khan PW/4 straightly admits that prior to purchase, they had no occasion to go on this field. The incident is of 27.7.83 and order of Revenue court Ex.P/9 of 19.05.83 against respondents is to the effect that respondents not to interfere in possession of appellants and not to interfere for irrigation using the dhoras. Thus, it clearly transpires that litigations revenue as well as criminal were pending and dispute was not trifling. FIR and protest application that is complaint named eight persons and case is registered against four. FIR was lodged by complainant PW/4 but Ramzan Khan PW/4 in his statement state that Bhanwaroo the respondent no.4 was not there and thus evidence of PW/4 creates doubts about presence of respondent Bhanwaroo. Statement taken in course of investigation Ex.D/8 of main injured Gulab Khan also do not have name of respondent Bhanwaroo. S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) Chotu PW/2 a eye witness describes the incident but as per his statements recorded in course of investigation Ex.D/1, he did not witness the occurrence. As per PW/2 he saw only one blow being inflicted and he and other witness Hazari PW/6 did not say a word to these quarreling persons though they stayed there for half an hour. Several other are contradictions in evidence of PW/2 in relation to his earlier statement Ex.D/1. Other witness PW/6 do also state of occurrence but his statements Ex.D/10 recorded under Section 161 Cr.P.C finds mention of presence and injury to Ramzan and he state ignorance how Manohar Singh was injured. Statement of this witness PW/6 also have other inconsistencies and contradictions in relation to his statement recorded during investigation. AS per complainant Ramzan Khan PW/4, injured Gulab Khan PW/5, injured Alam Khan and other witnesses as injury was being inflicted on Ramzan Khan by Manohar Singh, so Ramzan for self protection getting hold of and snatching lathi of Manohar Singh did vigorously round sweeped lathi so Manohar Singh was injured. With this, it is to be observed that injury on the person of Ramzan PW/4 are only three abrasion and a bruise – none above neck. PW/1, PW/4, PW/5 state that they were at the field and respondents tried to make flow of rainy water filled in field of Dhar Singh towards the field of respondents. So they asked them not to do so – then respondents not giving heed uttering abuses did beat them – Chattar Singh gave blow of axe to Gulab Singh which fell below his left eye - Mangu Singh inflicted blow of kassi on head of S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) Alam PW/1 and then as Manohar Singh inflicted blow to Ramzan he getting hold of lathi sweeped it round injuring assailants. PW/1 confronted with his investigational statement Ex.D/2 denies that rest standing only Chattar Singh and Mangu caused injures to Gulab Khan and also denis that Dhar Singh inflicted blow of lathi at his wrist. Complainant PW/4 when confronted with his statement Ex.D/6 recorded during investigation that on hearing shouts he going there kept sitting at bera (well) and afterwards on causing injuries to him he snatching axe from Chitar Singh went to his nearly bara, denied of the same. Statement Ex.P/6 of PW/4 and neither FIR mentions about sweeping of lathi by any and of injury to Manohar Singh. Some other contradictions, omissions also are. Similarly, earlier statement Ex.D/8 of Gulab Khan PW/5 do not mention of presence of Ramzan and Alam right from the beginning and of injury to Manohar Singh or respondents. Statements Ex.P/8 under Section 161 of PW/5 do not find mention of coming of Ramzan and mentions that no one intervened which is contrary to his statements before the Court. Similar are the other contradictions or omissions in the statement of witnesses. Describing evidence and alleged facts in detail, learned Judge has mentioned reasons for acquitting respondents which need not be repeated. No plausible explanation appears for the fatal injuries caused to Manohar Singh and of injuries to others. The contention that respondents were the agressors do not find any base. S.B.Criminal Appeal No. 15/89 (Ramzan Khan v. Dhar Singh & Others) Conclusions arrived by learned Sessions Judge are based on evidence with cogent reasons and no reason whatsoever is to interfere with the finding. Thus, there is no force in the appeal. The appeal is rejected. (C. M. TOTLA), J. scd