IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T S.B. CRIMINAL APPEAL NO.304/1987. Kishana @ Kishan Lal & Ors. Vs. State of Rajasthan Date of Judgment : September 29, 2008. PRESENT HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Ms. Anita Jain for the accused-appellants. Shri Deen Dayal Sharma, Public Prosecutor for State. **** Reportable BY THE COURT :- This criminal appeal is directed against the judgment of learned Additional Sessions Judge Bundi dated 22/7/1987 whereby accused-appellants Kesrilal and Gobrilal were convicted for offence under Section 326 IPC and each of them were sentended to undergo rigorous imprisonment for two years with fine of Rs.500/- with the further stipulation that in default of payment of fine, they shall have to undergo rigorous imprisonment of three months. Accused- appellant Kishanlal however was convicted for offence under Section 324 IPC and sentenced to rigorous imprisonment of three months. 2) The factual matrix of the case is that a first information report was lodged by one Mangilal on 20/6/1986 at P.S. Kapren, District Bundi inter-alia alleging therein that at 5-6 pm on that day, he along with his brother Ramswaroop had gone to the pond to collect sand where accused Kishanlal S/o Dhanna, Kesra S/o Kishanlal, Babu S/o Chaturbhuj, Chaturbhuj S/o Dhanna, Gobri Lal S/o Udha, Sohanlal S/o Dhanna and Bodiram S/o Kanha were sitting armed with 'kulhadis', 'kudali' and 'gandasis'. Kesra inflicted kulhadi blow on the head of Ramswaoop, Kishanlal inflicted kudali blow on left hand shoulder of Ramswaroop, kesra inflicted kulhadi blows at three places at his back. Gobriya inflicted 'kutia' blow on the frontal side of the face of Mangilal, resulting into loss of upper teeth of Mangilal. Babu caused 'lathi' blow on his right hand. Other accused beat them with fists. This incident was witnessed by Gopal Dhabhai, Mathura S/o Heera Meena, Gopal S/o Nathu Gujar all are residents of village Khedli. The police upon investigation of the matter filed challan against all the aforesaid accused for offences under Sections 307, 148/326/149, 148, 326 and 307/149, 307/149, 326/149, 148 & 324, 307/149, 326/149, 148 & 323 & 307/149, 326/149 and 148 IPC. The prosecution examined as many as 9 witnesses and defence examined one witness. Apart from above, prosecution examined as many as 17 documents. Trial court upon conclusion of trial convicted and sentenced the accused-appellants herein for offences as indicated above and acquitted rest. Hence, this appeal. 3) I have heard Ms.Anita Jain, learned counsel for the accused-appellants and Shri Deen Dayal Sharma, learned Public Prosecutor for the State. 4) Ms.Anita Jain, learned counsel for the appellants argued that in fact complainant-party was aggressor and the incident had taken place near the field of accused-appellants. Cross-cases were registered by the parties against each other. Accused appellants also lodged first information report against the complainant-party with Police Station Kapren about the same incident which was registered as FIR No.43/1986. In the same incident, accused- appellants and Kalyani from the side of the accused- appellants sustained serious injuries. Challan was also filed against Sukhpal, Mangilal, Gopal and Ramswaroop of the complainant-party for offences under Sections 323, 324 and 341 IPC. Learned counsel however is not in a position to inform the court as to what ultimately happened in that matter. She however argued that prosecution witnesses in the present case have improved upon their original version as dislocsed in their statements earlier recorded under Section 161 Cr.P.C. Out of the total five eye-witnesses, learned trial court has not believed two of the witnesses and the rest three witnesses on whose testimony the conviction has been recorded, are injured witnesses. Therefore, learned counsel for the appellants contended that in absence of corroboration, their testimony could not be relied upon by the learned trial court for recording conviction and sentence of the accused-appellants. Moreover, since the trial court on the basis of same evidence has acquitted other four accused, the present accused-appellants are also entitled to be acquitted on the self-same untrustworthy evidence of the prosecution. It was argued that there were material contradictions in the version of the prosecution witnesses inasmuch as, the witnesses made improvements upon their original version in their statements under Section 161 Cr.P.C. Statements of eye-witnesses were recorded u/S.161 Cr.P.C. after enormous delay. 5) Ms.Anita Jain, learned counsel for the appellants alternatively argued that the injuries caused on the person of the members of the complainant-party, in any case, were result of appellants' exercising their right of private defence. In the same incident, members of the accused-party namely; Babulal, Gobrilal and Kalyani also sustained injuries. The prosecution has not at all explained the injuries from the side of the accused-appellants. Appellants therefore deserve to be acquitted. Learned counsel argued that Kesrilal received four injuries three of which were lacerated wound and one was bruise. Two of the injuries were on his head which is evident from Exb.D/7. Accused Kishanlal received four injuries, two of which were incised wound, one was bruise and last and fourth one was also bruise. Injury No.1 was in the dimension of 1-1/2x1-1/2" on superior side of the head and left interior to deep bone of the skull which was found to be grievous in nature. Injury No.2 was in the dimension of 5x4" on the jaw at left and front side. Injury No.3 was incised wound in the size of 3x1-1/2x1x1-1/2" at the left lower limb side. Injury No.4 was bruise in the dimension of 1/2x1/2x1- 1/2" at the right elbow. Kalyani W/o Babulal received one bruise injury on the mid of forehand posteriorly. Babulal himself received one bruise injury on the left side of his head posteriorly. Gobrilal received three injuries one of which was incised wound at his upper portion of his left shoulder. There was no explanation whatsoever by the prosection of any of these injuries. Learned counsel for the appellants relied on the judgments of this court in Sugna & Anr. Vs. State of Raj. : RCC 1990 578, Nand Lal & Ors. Vs. State of Rajasthan : RCC 1992 237, Chouthu and others Vs. State of Raj. : RCC 1989 183 and Hari Ram Vs. State of Rajasthan : RCC 1989 403. 6) Shri Deen Dayal Sharma, learned Public Prosecutor for State opposed the appeal and argued that offence against the accused appellants has been proved beyond reasonable doubt and the learned trial court has rightly on the basis of evidence on record convicted three accused for the aforesaid offences. It was contended that mere acquittal of the other co- accused cannot completely render the testimony of prosecution witnesses untrustworthy. It was argued that PW2 Mangilal, PW3 Ramswaroop, PW5 Gopal S/o Hajari and PW7 Gopal S/o Nathulal have supported the prosecution case. They have remained unshakened in cross-examination. PW8 Satish Pareek in his statement proved that injured Ramswaroop received four injuries out of which, Injury No.1 was incised wound 3"x1/2" x deep bone which on examination was found to be a fracture of right parietal bone. According to the opinion of DW1 Dr.Ummed Singh Rathore, injuries No.1 to 3 were cumulatively sufficient to cause death in the ordinary course of nature. Injured Mangilal sustained three injuries, all of which were by sharp edged weapon and as a result of Injury No.2, his upper incisor teeth was caused to disappear. Learned counsel argued that accused Kesrilal was armed with 'Kulhadi' and he inflicted 'kulhadi' blow on the head of Ramswaroop from sharp edged side and also inflicted kulhadi blows on the back of Ramswaroop. Accused Kishana inflicted 'kulhadi' blow on the left hand shoulder of Ramswaroop. Accused Gobrilal inflicted 'kutia' blow on the face of Mangilal leading to loss of his upper incisor teeth. This has been done so consistently stated by all the prosecution witnesses aforesaid. Learned trial court was therefore justified in convicting the accused. 7) I have given my anxious consideration to the rival arguments and perused the record of the trial court. 8) Examination of the record reveals that the learned trial court has disbelieved the statements of PW7 Gopal S/o Nathulal on the ground that his statement was recorded two days after the date of incident. In his statement recorded under Section 161 Cr.P.C., which was exhibited as Exb.D/5, he denied having witnessed the incident. Learned trial court also did not believe statement of PW6 Mathura because in his police statement Exb.D/4 he stated that he was not present at the place of occurrence and did not witness any incident. Exb.D/9 site plan also did not show the location of these witnesses. Entire prosecution story has thus been found to be proved on the testimony of PW2 Mangi Lal, PW3 Ramswaroop and PW5 Gopal S/o Hajari who are incidentally injured witnesses. Learned trial court also held that merely because of statement of PW5 Gopal S/o Hajari was recorded by the police two days after the incident, his statement cannot be disbelieved. Name of Gopal S/o Hajari was mentioned in the first information report as Exb.P/8 and, therefore, delay of two days in recording his statement would not be fatal because he cannot be taken as planted witness. The argument that prosecution has failed to explain the injuries on the person of four members of the complainant-party, prosecution case should be disbelieved, was rejected by the trial court holding that since Kishanlal was advised x-ray for Injury No.3 and x-ray plate was not proved by any of the witnesses and, therefore, in the absence thereof, Injury No.3 cannot be accepted as grievous and all other injuries on the persons of four injured persons from the side of the accused were simple. In the face of this, evidence of the prosecution in regard to grievous injuries of the injured in the present case, cannot be disbelieved. 9) Perusal of statement of PW2 Mangilal informant reveals that dispute occured between the parties when the accused asked the complainant not to lift the sand from the bed of the pond (talai). Mangilal in his cross-examination has stated that there is a way adjoining the pond and adjoning thereto, there is field of Kisnanlal but he denied this that when they reached there to lift the sand, Kishanlal, Babulal and Gobrilal, the accused herein were also digging the sand. PW3 Ramswaroop has also stated that when they reached the 'talai' on a bullock cart to collect the sand, accused were already present there and when they started putting the sand into their bullock cart, the accused protested. PW5 Gopal S/o Hajari has clearly admitted in his cross- examination that accused Kesra and Kishanlal asked the complainant party not to lift the sand from there and when they insisted on lifting the same, quarrel took place between them. PW6 Mathura in his cross- examination stated that incident of marpeet took place when, Ramswaroop and Mangilal started digging the sand and the accused were asking them not to do so. PW6 Mathura in his statement has clearly stated that accused Kesrilal asked the injured Ramswaroop and Mangilal not to lift the sand. They thereupon stated that it was a government land and they would do so. Kesrilal at this hit 'kulhadi' blow on the head of Ramswaroop. Kishanlal also caused blow of 'kudali' on the person of Ramswaroop and Mangilal also caused blow with 'kutia' on the face of Gobaria. 10) Whether or not the the accused were justified in asking the complainant-party not to dig the sand from 'talai' cannot be said with certainty, but they did so is proved by evidence. Though the learned trial court has not accepted the argument of the accused appellants that prosecution has failed to explain the injuries on four persons of the complainant party but this much can be safely inferred from the evidence produced by the prosecution as well as by the defence that those injuries were received by the members of the accused party in the same incident while resisting the action of the complainant party in lifting the sand. Notwithstanding the grievous hurts received by way of Injury No.1 on the person of Ramswaroop and also Injury No.2 on the person of Mangilal which led to loss of his upper incised teeth, the circumstances in which the said grievous hurts were received by them would bring the offence within the purview of Section 335 IPC and not under Section 326 IPC. Section 335 IPC provides that whoever voluntarily causes grievous hurt on sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person, other than the person, who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees, or with both. Ingredients of this offence are that accused should have voluntarily caused grievous hurt as explained in Section 322 IPC and such grievous hurt should have been caused on sudden provocation and accused was not intending to cause or knowing himself to be likely to cause grievous hurt, and if the hurt which he causes is grievous hurt, he is said to have voluntarily caused grievous hurt. And if it were a case of simple hurt caused due to similar provocation, offence that would be attracted would be Section 334 IPC and not Section 324 IPC, maximum sentence wherefor is one month, with or without fine. 11) In Arjunan and etc. Vs. State : 1997 Cr.L.J. (Mad.) 2327, there was sudden quarrel over cutting of a tree. When deceased started cutting tree, accused forbode him. Deceased emphatically asked that tree belonged to him. Main accused in that case gave blow of wooden reaper on the head of deceased which caused his death. Tree in question was standing in the land belonging to the deceased and was in his actual possession. One of the co-accused pelted stones which caused grievous hurts to the prosecution witnesses. It was held by the Division Bench of the Madras High Court that accused was liable to be punished for offence under Section 335 IPC and not for offence under Section 325 IPC as injuries were caused on provocation given by deceased. In State of M.P. Vs. Rajesh and others : 1997 Cr.L.J. (M.P.) 2466, the complainant was subjected to beating by the accused while he was going for urinal in front of the house of the accused despite complainant's having his own lavatory, urinal and bathroom in his own house. On refusal by the accused, complainant abused them. Resultantly, accused stabbed the injured-complainant by knife who sustained grievous hurts. Accused were acquitted of the offences under Sections 307/34 and 324/34 IPC by the trial court. In appeal by the State of M.P., the Division Bench of the Madhya Pradesh High Court, held that the accused were liable to be convicted under Section 335 IPC because act of the complainant amounted to provocation and not for offence under Section 324 IPC. Accordingly their conviction was ordered under Section 335 IPC. 12) In the present case too, nature of evidence of the prosecution as analysed above and the injuries received by the members of the accused-party clearly show that they initially forbade the complainant-party from lifting the sand and then followed the quarrel and in that process, injuries, which though found to be grievous hurts, were received by Ramswaroop and Mangilal. Conviction of the accused-appellants No.2 & 3 therefore could not be recorded under Section 326 IPC and also conviction of accused-appellant No.1 Kishanlal could not be recorded under Section 324 IPC as the injuries in question were caused by them to the injured on account of provocation aforesaid and, therefore, they are liable to be convicted only for offence under Section 335 IPC and 334 IPC, respectively. 13) Incident leading this criminal case in the present case took place on 13/9/1986 and more than 22 years have gone by since then. Accused-appellants remained on bail during trial and their sentence also remained suspended during pendency of this appeal. There is no adverse report to the effect that they ever misused the liberty granted to them. Kishanlal was 54 years when the incident took place and he is now 76 years aged old. Accused Kesri Lal was 22 years of age at the time of incident and now he is 44 years aged old and accused Gobri Lal was 30 years at the time of incident and now he is 52 years of age. No criminal antecedents of any of the accused is reported. 14) In the circumstances of the case, therefore, ends of justice would be met if the accused-appellants are extended the benefit of probation. In the result, the appeal is partly allowed. Conviction of accused appellant No.2 Kesri Lal and accused-appellant No.3 Gobri Lal for offence under Section 326 IPC is altered into one under Section 335 IPC. Consequently, conviction of accused-appellant No.1 Kishana @ Kishan Lal for offence under Section 324 IPC is also altered into one under Section 334 IPC. All the three accused-appellants are extended the benefit of probation with the stipulation that each of them shall furnish a bond in the sum of Rs.10,000/- with one surety in the like amount to the satisfaction of the concerned trial court and they shall maintain peace and be of good behaviour for a period of one year 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. anil