1 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR (1) D.B. Criminal Appeal No. 426/1982 Badri Versus The State of Rajasthan With (2) D.B. Criminal Appeal No. 331/1983 The State of Rajasthan Versus Badri & Others. Date of Judgment: 18.05.2010 Hon'ble Mr. Narendra Kumar Jain,J. Hon'ble Mrs. Meena V. Gomber,J. Mr. S.S. Sunda with Mr. Vipul Jaiman, for the accused-persons. Mr. Sanjeev Mehla, Public Prosecutor, for the State. BY THE COURT:(Per Hon'ble Jain, J.) Heard learned counsel for the parties. 2. Since both appeals arise out of common judgment dated 21.09.1982 passed by Sessions Judge, Tonk in Sessions Case No. 28/1982, therefore, they are being disposed of by this common judgment. 3. Briefly stated the facts of the case are that a Parcha Bayan, Exhibit P-1, of P.W. 1, Narain was recorded on 21.04.1982 at 13.00 2 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. hours by P.W. 8, Pushkar Dutt, Circle Officer, Tonk, Camp Piplu, wherein it was alleged that yesterday at about 7.00 P.M. some quarrel took place between ladies and children of accused and complainant party. On hearing hue and cry, accused person Badri came and inflicted a lathi blow on the head of Bajranga. Badri again inflicted another blow above the eye on the person of Bajranga. Thereafter, Kajod also inflicted an injury by lathi on the head of Bajranga. Bajranga fell down and thereafter accused persons namely Fatha son of Bhura and Choga son of Gopal also inflicted injuries by lathies on head, mouth and eyes of Bajranga. Bleeding started from the nose and mouth of Bajranga and he became unconscious. Bajranga was taken to hospital but he succumbed to his injuries. 4. On the basis of above Parcha Bayan, F.I.R. No. 27/1982 under Section 302/34 IPC was registered at Police Station Piplu District Tonk. During investigation, the accused persons were arrested and after completion of investigation, a charge-sheet was filed against four accused persons namely (1) Badri S/o Putha; (2) Kajod S/o Putha; (3) Choga S/o Gopal and (4) Fatha S/o Bhura for 3 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. the offence under Section 302 and 302/34 IPC in the Court of Chief Judicial Magistrate, Tonk, who committed the case for trial to the Court of Sessions Judge, Tonk. 5. Learned trial court framed charges against accused persons namely Badri and Kajod for offence under Section 302 IPC and against Choga and Fatha for offence under Section 302/34 IPC. Accused persons denied charges and claimed trial. Prosecution in support of its case examined P.W.1 Narain S/o. Bhura; P.W.2 Ladhi W/o Narain; P.W.3 Ganga W/o Bajranga; P.W.4 Jagdish S/o Lal and P.W.5 Badri S/o Lala as eye-witnesses; P.W.6 Dr. V.D. Sharma, Medical Officer; P.W.7 Prathvi Singh and P.W.8 Pushkar Dutt as investigating officers. Thereafter statements of accused persons under Section 313 Cr.P.C. were recorded wherein it was stated that deceased Bajranga had inflicted a blow by lathi on the person of accused Kajod and in defence thereof, the accused inflicted a blow by lathi on the person of Bajranga. No evidence in defence was led. Learned trial court after considering the submissions of parties and examining the record acquitted all accused persons of charges under Section 4 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. 302 and 302/34 IPC but convicted accused Badri for offence under Section 304 Part II IPC to undergo five years' rigorous imprisonment and a fine of Rs. 5,00/- in default of payment of fine to further undergo three months' simple imprisonment and accused Kajod for offence under Section 323 IPC to undergo six months' rigorous imprisonment and a fine of Rs. 1,00/- and in default of payment of fine to further undergo one month's simple imprisonment. Being aggrieved with the same, accused Badri preferred Criminal Appeal No. 426/1982 challenging his conviction under Section 304 Part II IPC and State preferred Criminal Appeal No. 331/1983, challenging the order passed by Sessions Judge, Tonk acquitting accused persons from the charges under Section 302 and 302/34 IPC. 6. Mr. S.S. Sunda, learned counsel appearing on behalf of accused persons argued that prosecution examined five witnesses as eye witnesses of the incident in the present case, out of which statements of two witnesses namely P.W.4 Jagdish and P.W.5 Badri were disbelieved by the learned trial court. Remaining three eye witnesses i.e. P.W.1 Narain S/o Bhura; P.W.2 Ladhi w/o 5 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. Narain and P.W.3 Ganga W/o Bajranga are interested and relative witnesses. P.W.1 Narain is brother of deceased; P.W. 2 Ladhi W/o Narain is sister-in-law(Bhabhi) of deceased and P.W.3 Ganga is wife of deceased. 7. He further contended that so far as incident is concerned, he is not disputing the same, as accused Kajod in his statement under Section 313 Cr.P.C. has admitted the same and explained that it was deceased Bajranga, who inflicted a lathi blow on his person and only thereafter, a lathi blow was inflicted on the person of deceased by him in his self defence. In support of submission, learned counsel for accused persons referred Exhibit D-7, Injury Report of accused Kajod, which was proved by P.W.6 Dr. V.D. Sharma. By referring the statements of P.W.1 Narain; P.W.2 Ladhi and P.W.3 Ganga, he contended that from their statements, it is clear that both the parties were cousin of each other and residing in the same house. There was no previous enmity among them and there was no motive at all to commit murder of deceased Bajranga. The incident took place all of sudden on a petty matter and there was no intention or premeditation of mind to commit 6 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. murder of Bajranga. 8. He further contended that deceased sustained only one fatal injury by blunt object and from the statements of these three eye-witnesses, it is not clear that which accused was responsible for causing fatal injury on the person of deceased, therefore, neither accused persons can be convicted under Section 302 and 302/34 IPC nor under Section 304 Part II IPC. He, therefore, contended that in absence of any specific evidence as to which one of the assailants was responsible for causing fatal injury on the person of deceased, the accused persons could be convicted for causing grievous injury by blunt object, at the most under Section 325 read with Section 34 IPC, but in no circumstances of the case, accused Badri could be convicted under Section 304 Part II, IPC. 9. So far as acquittal of accused persons from the charges under Section 302 and 302/34 IPC is concerned, learned counsel for accused persons supported the findings of the learned trial court and contended that order of the learned trial court to that extent is justified, but the order passed by 7 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. the learned trial court is liable to be modified and the accused persons can be convicted under Section 325/34 IPC only. 10. So far as sentence under Section 304 Part II IPC is concerned, he contended that accused Badri was 19 years of age at the time of incident, i.e. below 21 years of age and this fact is clear from his memo of arrest, Exhibit P-17 and also from Exhibit P-5, wherein age of Badri has been mentioned as 19 years. He, therefore, contended that in case his submission is not accepted and conviction of accused Badri under Section 304 Part II IPC is upheld, then he is entitled to get the benefit of probation under Section 6 read with Section 4 of the Probation of Offenders Act, 1958. 11. In alternate, he contended that even if the benefit of probation is not granted to accused Badri, then his sentence can be reduced to a period of 3 months 17 days, which he has already undergone, particularly in view of the fact that the incident took place in the year 1982 and the case is 28 years old and at present appellant Badri is on bail and his family is already settled and he has not committed any offence during this 8 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. period. 12. He further contended that in case his submission is accepted and accused persons are convicted under Sections 325/34 IPC then, accused Badri and Kajod may be awarded sentence of imprisonment of 3 months and 17 days and 5 months and 1 day respectively, which they have already undergone. So far as remaining two accused persons namely Choga S/o Gopal and Fatha S/o Bhura are concerned, they have already died and State appeal against them stood abated. 13. Learned Public Prosecutor argued that in view of statement of P.W.6 Dr. V.D. Sharma, injury sustained by deceased was sufficient to cause death in the ordinary course of nature. He further contended that looking to the nature of injury, learned trial court committed illegality in acquitting the accused persons from the charges under Section 302 and 302/34 IPC. However, during the course of arguments, he could not point out any prosecution evidence to prove that who was the main assailant responsible for causing fatal injury on the person of deceased. During the course of argument he frankly admitted that from the 9 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. statements of P.W.1 Narain; P.W.2 Ladhi and P.W.3 Ganga, it is not clear beyond all reasonable doubts that who was the main assailant to cause fatal injury on the person of deceased. 14. We have considered the submissions of learned counsel for the parties and examined the impugned judgment as well as record of the trial court. 15. From the evidence available on record, it appears that the incident took place on 20.04.1982 at 7.00 P.M. as per Parcha Bayan, Exhibit P-1 of P.W.1 Narain. However, as per Exhibit P-13, Rojnamcha, a telephonic information was received at 11.45 P.M. from Dr. V.D. Sharma, Saadat Hospital, Tonk. Injury Report of deceased Bajranga, Exhibit P-7, was prepared on 20.04.1982 at 11.20 P.M. and it was mentioned therein that the same was prepared on police request. Exhibit P-12 is the Post Mortem Report of deceased, which was prepared on 21.09.1982. 16. Before we examine the ocular evidence, it would be appropriate in the facts and circumstances of the present case to consider the injuries sustained by deceased. As per Exhibit P-7, Injury Report, 10 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. Bajranga sustained two injuries. One swelling on left parietal temporal region and another swelling on right temporal region. As per Exhibit P-8, X-Ray Report, the injury sustained by deceased on left parietal temporal region was grievous and liable to cause death. As per Post Mortem Report, Exhibit P-12 dated 21.04.1982, the deceased Bajranga sustained following two injuries: “(1) Boggy swelling on left parieto temporal region 6” x 6” with bleeding from abrasion on scalp 3/4” with palpable fractured bones of skull. (2) swelling on right temporal region 4” x 4” both upper eye lid swollen and coloured black(black eye).” 17. Now we examine the ocular evidence available on record in the present case. It is relevant to mention that prosecution examined five witnesses i.e. P.W.1 Narain; P.W.2 Ladhi; P.W.3 Ganga; P.W.4 Jagdish and P.W.5 Badri as eye witnesses of the incident. Learned trial court while considering the statements of P.W.4 Jagdish and P.W.5 Badri observed that both the witnesses were chance witness and discarded their testimony. We have also examined their testimony and find 11 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. that findings of the learned trial court in this regard are based on proper appreciation of evidence and their testimony has rightly been discarded by the learned trial court. In these circumstances, we have to examine the statements of P.W.1 Narain; P.W.2 Ladhi; P.W.3 Ganga. 18. From the statement of P.W. 1, Narain, it is clear that accused Badri inflicted a lathi blow on the head of deceased and he further inflicted second blow above the eye of deceased. Kajod also inflicted a lathi blow on the head of the deceased. Thereafter, deceased Bajranga fell down and accused persons Choga and Fatha both inflicted two injuries by lathi on the person of deceased. 19. Similar is the statement of P.W.2 Ladhi and P.W.3 Ganga. From their testimony, it is clear that total five injuries were inflicted by the accused persons on the person of deceased, but their testimony to that extent does not appear to be correct for the reason that the same has not been corroborated by medical evidence, Injury Report, Exhibit P-7 as well as Post Mortem Reprot, Exhibit P-12. According to Exhibits 12 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. P-7 and P-12, deceased sustained two injuries, as reproduced hereinabove. But only on this ground, we will not discard the prosecution evidence, for the reason that incident has been admitted by accused Kajod in his statement under Section 313 Cr.P.C. wherein he claimed right of private defence. Accused Kajod specifically stated that a lathi blow was inflicted on his person by deceased and in right of private defence, he inflicted an injury on the person of deceased. Accused Kajod sustained injuries and this incident is clear from his Injury Report Exhibit D-7 which has been proved by P.W.6 Dr. V.D. Sharma. Under these circumstances, we will examine the statements of P.W. 1 to P.W.3 minutely. 20. P.W.1, Narain has specifically stated that Badri inflicted a lathi blow on the head of deceased. Badri further inflicted second blow by lathi above eyes on the person of deceased. Thereafter Kajod inflicted a lathi blow on the head of deceased. Thereafter Bajranga fell down and accused Choga and Fatha inflicted two injuries on the person of deceased. 21. P.W.2 Ladhi also stated that Badri 13 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. inflicted a lathi blow on the head of deceased Bajranga and he further inflicted second blow by lathi above eyes of deceased. Thereafter, Kajod inflicted a lathi blow on the head of the deceased. Thereafter, Bajranga fell down and accused Fatha and Choga both inflicted lathi blows on the head of deceased and thereafter, Bajranga became unconscious. 22. P.W.3, Ganga also stated the same version that accused Badri inflicted a lathi blow on the head of deceased Bajranga and second blow was also inflicted by accused Badri above the eyes of deceased with lathi. Thereafter, accused Kajod inflicted a lathi blow on the head of deceased Bajranga and thereafter, Bajranga fell down and accused persons Fatha and Choga inflicted lathi blows on the person of deceased. 23. From the Injury Report, Exhibit P-7 and Post Mortem Report, Exhibit P-12 and statement of P.W.6 Dr. V.D. Sharma, it is clear that deceased sustained only two injuries and both were on the head; one on left parieto temporal region and another on right temporal region. As per X-Ray Report, Exhibit P-8, left parieto region injury was 14 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. found to be grievous and liable to cause death. From the statements of P.W.1 Narain; P.W.2 Ladhi; P.W.3 Ganga, it is not proved as to which one of the accused inflicted fatal injury on the person of the deceased. From their testimony it is also borne out that accused and complainant both were cousin and living in the same house. There was no previous enmity among them, no motive to commit murder of deceased. The incident in the present case took place all of sudden on a petty matter, as discussed hereinabove. In absence of any specific evidence about causing of fatal injury on person of deceased by particular accused, it is not safe to convict any of the accused persons for the offence under Section 302 and 302/34 IPC. 24. We have considered the findings of learned trial court and we find that learned trial court convicted the accused Badri for offence under Section 304 Part II IPC only on the basis of presumption. Learned trial court has observed that since a lathi was recovered, as per information furnished by accused Badri and no lathi was recovered from remaining accused persons. In this connection, it is relevant to mention and 15 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. refer the statement of P.W.5 Badri S/o Lala who was witness to recovery memo of lathi, Exhibit P-5, who specifically stated that the lathi, which was used by accused Badri to inflict injuries on the person of deceased, has not been recovered, but another lathi has been produced and recovered vide Exhibit P-5. Another Motbir witness of Exhibit P-5, Ramlal has not been examined by the prosecution. We have already discussed the statements of P.W.1 to P.W.3 and come to a conclusion that no witness has specifically stated as to who was responsible for causing fatal injury on the person of deceased. The conviction of an accused cannot be based on presumption, therefore, we find that finding of the learned trial court convicting the accused Badri for offence under Section 304 part II IPC is not correct and the same is liable to be set aside. 25. Now, we have to examine that on the basis of evidence available on record and our finding thereon and in the facts and circumstances of the present case, what offence is made out and against whom it is made out. In this connection we will refer to some judgments delivered by the Hon’ble 16 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. Apex Court. 26. In Shri Krishan & Others Vs. State of U.P., reported in AIR 1972 Supreme Court 2056, the Hon’ble Apex Court held that, if it is not possible on the material on record to find out as to which one of the accused gave the fatal blow, there is no escape from the conclusion that each one of the four accused can only be guilty of the offence under Section 325 read with Section 34 IPC and not under Section 302 IPC. Para 6 of the judgment (supra) is relevant, which is reproduced as under: “There was no previous enmity between the accused appellants on the one hand and Seru deceased and Sadaphal PW on the other. The occurrence was the off-shoot of a trifling incident in the nature of a scuffle between two urchins. Nandlal, it appears then went weeping and told his father that he had been beaten by Seru and Sadaphal. The four accused thereupon protested to Seru and Sadaphal for the beating given to Nandlal and also belaboured them with lathis. Five injuries were caused to Seru. Apart from the one injury on the head which proved fatal, the other injuries were not of a very serious nature. Sadaphal had seven injuries all of which were simple in nature. The prosecution evidence, as observed by the High Court, does not indicate as to which one of the accused appellants inflicted 17 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. the fatal blow on the head of Seru. As such, none of the accused can be held to be personally liable for the fatal injury. The liability can only be vicarious under Sectin 34 of the Indian Penal Code and as such, we have to find out as to what was the common intention of the accused in furtherance of which they caused injuries to Seru and Sadaphal. In this context we find that the High Court has arrived at the following finding: “There could, therefore, be no doubt that the common intention of the appellants was to give a severe beating to Seru and Sadaphal.” The above finding as well as the broad circumstances of the case go to show that the common intention of the accused was to cause grievous injury to the victim. The fact that one of them exceeded the bound and gave a fatal blow on the head of the deceased would make him personally liable for the fatal injury, but so far as the other three are concerned, they can be held liable only for the injuries which were caused in furtherance of the common intention and not for the fatal injury. As it is not possible on the material on record to find out as to which one of the accused gave the fatal blow, there is no escape from the conclusion that each one of the four accused can only be guilty of the offence under Section 325 read with Section 34 Indian Penal Code.” 27. In the case of Ninaji Raoji Baudha & Another Vs State of Maharashtra, reported in 18 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. AIR 1976 Supreme Court 1537, the Hon’ble Apex Court in similar circumstances where it was not proved from the evidence on record that who was the main author of fatal injury, set aside the conviction of accused persons under Section 302 read with Section 34 IPC and convicted the accused persons as per nature of injuries under Section 325 read with Section 34 IPC. Para 12 of the judgment (supra) reads as under: “12. The evidence on record therefore went to show that the appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his 'oota' but passed him by in search of Samadhan who was dressing his injuries inside the house. Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station. It was then that injuries were inflicted on his person by the appellants Ninaji and Raoji. Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted in the ultimate death of Bhonaji. The other injuries were on the neck(back side), knees and the right elbow of the deceased and were simple injuries. As has been shown, there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did not fall on any 19 DB Cr. Appeal No. 426/1982 Badri Vs State & DB Cr. Appeal No. 331/1983 State Vs. Badri & Others. vital part of the body and in the absence of evidence to establish that their common intention was to cause death, it appears that the appellants had the common intention of causing grievous injury with the lathi and the 'khunt'. They could therefore be convicted of an offence under Section 325 read with Section 34, I.P.C. and not Section 302 read with Section 34, I.P.C. 28. In the case of Ram Lal Vs Delhi Administration, reported