1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Mangi Lal and others. vs. State of Rajasthan. D.B.CRIMINAL APPEAL NO.238/2006 UNDER SECTION 374 CrPC AGAINST THE JUDGMENT AND ORDER DATED 20.2.2006 PASSED BY SHRI AMAR SINGH, ADDITIONAL SESSIONS JUDGE (FAST TRACK) NO.2, BIKANER IN SESSIONS CASE NO.17/2004. DATE OF JUDGMENT ::: April 30th, 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN, J. Mr.Mridul Jain, for the appellants. Mr.VR Mehta, Public Prosecutor. - - - - - BY THE COURT (PER HON'BLE MR.PRAKASH TATIA, J.): Heard learned counsel for the parties. This appeal is against the judgment and order 2 dated 20.2.2006 passed by the Court of learned Additional Sessions Judge (Fast Track) No.2, Bikaner in Sessions Case No.17/2004 by which the learned trial court convicted the three accused appellants as under :- Offence Punishment Section 302 IPC To undergo imprisonment for life with a fine of Rs.1,000/- each and in default to further undergo 1 month's additional imprisonment. Section 307 IPC To undergo rigorous imprisonment for 10 years with a fine of Rs.1,000/- each and in default to further undergo 1 month's additional imprisonment. Section 341 IPC To undergo simple imprisonment for one month with a fine of Rs.500/- each and in default to further undergo 15 days' additional imprisonment. Section 323 IPC To undergo rigorous imprisonment for 1 year with a fine of Rs.1,000/- each and in default to further undergo 1 month's additional imprisonment. Section 325 IPC To undergo rigorous imprisonment for 7 years with a fine of Rs.1,000/- each and in default to further 3 undergo 1 month's additional imprisonment. Section 364 IPC To undergo rigorous imprisonment for life with a fine of Rs.1,000/- each and in default to further undergo 1 month's additional imprisonment. As per the prosecution case, on 23.10.2003, injured complainant Karni Singh gave an oral report at the Police Station Chatargarh and as per his information, one dispute was going on in relation to some agricultural land with Sheopat Ram since last 5 years and in that matter, the case was decided in favour of the complainant. The complainant was living in the said agricultural land in his Dhani with his family. On the date of incident, they went to take the crop of Gwar. At that time, his brother Peerdan Singh and Vimla were also with him. At about 12-12:30 PM, Sheopat Ram came with Barchi. Seeing Sheopat Ram with Barchi, the complainant, Peerdan Singh and Vimla tried to run away, then Mangi Lal, Jetha Ram and Mangi Lal's wife came from the other side. The complainant, Peerdan Singh and Vimla when tried to run in another side, then Sheopat Ram hit with the reverse side of Barchi upon Peerdan Singh who fell down. Complainant and Vimla tried to rescue Peerdan Singh. At that time, Sheopat Ram inflicted 2-3 more blows on the complainant's 4 brother Peerdan Singh. The complainant tried to snatch the lathi from the hands of Sheopat Ram's wife. At this time 4-5 more persons came with guns, lathies and gandasies. One of the person fired upon them. Thereafter, Sheopat Ram inflicted injury from the reverse side of the Barchi on the complainant's hand resulting into breaking of the hand of the complainant. Thereafter all the accused started beating Peerdan Singh and complainant with lathies and gandasies. Vimla ran away from the scene of occurrence. Hearing cries, neighbours Guman Singh and Chandra Singh came on the spot but fearfully they did not intervene. Thereafter, accused took Peerdan Singh to the dhani of the accused and there also, they gave beatings to him by lathies. As per the complainant, his brother Peerdan Singh died in the dhani of Sheopat Ram. Complainant's sister when informed other villagers, then Suresh and Barkat came on the spot but they also went back. On this information, a case no.144/2003 was registered vide FIR Ex.P/1 and after investigation, the police filed challan against the accused under Sections 302, 307, 325, 364/34, 341, 323 and 447 IPC. Charges were framed against the accused which were denied by them and they sought trial. At the trial, the prosecution produced PW1 Karni Singh, PW2 Barkat Ali, PW3 Suresh Kumar, PW4 Vijay Singh, PW5 Vimla, PW6 Bhera Ram, PW7 Sugan Singh, PW8 5 Chandra Singh, PW9 Om Prakash, PW10 Dr. Dilipa Ram, PW11 Dr. M.C. Baberwal, PW12 Dr. Madan Gopal, PW13 Sanwant Singh, PW14 Shiv Kumar, PW15 Karni Singh, PW16 Guman Singh, PW17 Rameshwar Bhati, PW18 Jeevraj Singh and PW19 Om Prakash. The statements of accused appellants were recorded under Section 313 CrPC wherein accused persons stated that they are innocent persons and no weapon of offence has been recovered from them. However, they stated that the disputed agricultural land is in their possession and they are cultivating it. They have been implicated because of enmity. In defence, no witness was produced by the accused appellants. However, they got exhibited the statements of witnesses Karni Singh, Suresh Kumar, Vijay Singh, Vimla, Sugan Singh, Chandra Singh and Guman Singh recorded during investigation under Section 161 CrPC as Ex.D/1 to Ex.D/6. The trial court, by the impugned judgment, convicted and sentenced the accused appellants as mentioned above by judgment and order dated 20.2.2006. Hence, this appeal. Learned counsel for the appellants vehemently submitted that without admitting assuming for the sake of arguments that all the injuries were inflicted by the accused persons, then a look at the prosecution 6 case itself will make it clear that the victim Peerdan Singh didn't die because of any of the injury suffered by him in the alleged incident. It is submitted that as per the post mortem report, there were total 11 injuries on the body of deceased Peerdan Singh. Out of 11 injuries, injuries no.1 to 9 are simple in nature. Injury no.10 and 11 which are grievous in nature are only fracture in left and right knees. PW10 Dr.Dilipa Ram stated that none of the injuries is on any vital part of the deceased and the deceased could not have died because of any of the injury mentioned in the post mortem report. It is also submitted that witness PW1 Karni Singh is real brother of deceased, PW5 Vimla is real sister of deceased, PW16 Guman Singh and PW8 Chandra Singh are the relatives of deceased and injured. In view of the fact that they tried to implicate the accused in false case of murder of their brother and witnesses are near relatives, then their statements cannot be relied upon for even proving the accused persons presence on the scene and inflicting the injuries either on the deceased Peerdan Singh or upon the complainant Karni Singh. It is submitted that in fact, the cause of death of Peerdan Singh is not known to the prosecution yet the appellants have been convicted by the trial court under Sections 302 and 307 IPC. 7 Learned Public Prosecutor vehemently submitted that the complainant himself is injured. His injury report has been produced and proved by PW12 Dr.Madan Gopal who examined the complainant. He suffered 13 injuries. Therefore, his statement cannot be discarded for any reason. His statement finds support from the statements of other witnesses and the statements of witnesses cannot be discarded merely on the ground of having relation with the deceased or injured. There is no reason to disbelieve the statement of other witnesses who gave statement to prove the fact of presence of the accused on the scene and inflicted injuries. We considered the submissions of learned counsel for the parties and perused the reasons given by the trial court in the impugned judgment as well as the record. The injuries on the body of the deceased Peerdan Singh are as under :- (1)Lacerated wound 2.5cm x 1.0 cm x muscle deep lateral to Rt eye directed above downwards. (2)Lacerated wound 1.0cm x 0.5 cm x muscle deep – 5.0 cm below left nipple. (3)Lacerated wound 3.0cm x 1.0 cm x muscle deep upper part left scapular region. (4)Bruise 10.0cm x 2.0 cm obliquely placed pastero 8 laterally left side back. (5)Bruise 8.0cm x 2.0 cm obliquely placed 2.0cm below injury no.4. (6)Bruise 6.0cm x 2.0 cm obliquely placed 2.0cm below injury no.4. (7)Lacerated wound 1.0cm x 0.5 cm x muscle deep – L/3 back of left arm. (8)Lacerated wound 1.0cm x 0.5 cm x muscle deep 2.0 cm lateral to injury no.7. (9)Lacerated wound 0.5cm x 0.5 cm x muscle deep – U/3 posterior part RT fore arm. (10)Swelling above ankle all around c fracture of both left leg bones. (11)Swelling above Rt ankle all around c fracture of both leg bones. Injuries no.1 to 9 are simple injuries and are by some blunt weapon. Injuries no.10 and 11 are grievous in nature but they are on non-vital parts of the body of deceased Peerdan Singh. None of the injuries is caused by any sharp weapon inspite of the fact that according to the prosecution, the accused along with 4- 5 persons had not only sharp edged weapons but fire arms also with them. From the injury report, it is proved that neither fire arm was used nor any injury was caused by sharp edged weapon. In addition to above, as per the statement of Dr.Dilipa Ram, the death of Peerdan Singh could not have been caused by the injuries no.1 to 11 and, therefore, he opined that the chemical report be sought obviously to find out whether 9 the death was due to poisoning. It is not the case of the prosecution that the deceased Peerdan Singh died due to poisoning. Further, there is no report on record to show that Peerdan Singh died because of poisoning. In either case, there is no evidence on the record how Peersingh died. In view of the above reason, the conviction of the appellants under Section 302 IPC cannot be sustained as the prosecution miserably failed to prove that Peerdan Singh died because of any of the injury suffered by him which is attributed to the appellants and further, because of the reason that there is no evidence on record how the said Peerdan Singh died, then naturally in absence of that fact, the cause of death, accused cannot be blamed for killing victim Peerdan Singh. In the same sequence, the evidence with respect to the commission of offence under Section 307 IPC is concerned, for that also, the relevant fact is that the accused and other 4-5 persons had deadly weapons with them, then having opportunity to use them in a manner which may cause injury to endanger life, has not been used by the accused persons, in the facts of this case, is indicative that they had no intention to eliminate either Peerdan Singh or injured Karni Singh. The injuries which have been suffered by Peerdan Singh have been considered above and the injuries suffered by Karni Singh are as under :- 10 (1)POP slab from upper arm to hand left side. (2)Three contusions of size 6 cm x 1.5 cm to 2 cm x 1.5 cm on back of chest RT upper 1/3. (3)Contusion of 3 cm x 1.5 cm on back of chest left side upper 1/3. (4)Contusion of 9 cm x 2 cm on back of chest lower 1/3 Rt side extending to left side crosses mid line. (5)Contusion of 6 cm x 2 cm on Rt arm posterio laterally lower 2/3. (6)Abrasion of 1.5 cm x 0.5 cm back on Rt elbow posteriorly. (7)Lacerated wound of 1 cm x 0.5 cm x skin deep on Rt Palm between thumb and index finger. (8)C/o (complaint of) pain back of abdomen middle 1/3 O/L tenderness point (9)Abrasion of 6 cm x 0.5 cm on Rt knee posteriorly. (10)Two abrasions of 0.5 cm x 0.5 cm each on left knee anteriorly. (11)Abrasion of 1.5 cm x 0.2 cm on Rt hand posteriorly middle 1/3 c ill defined swelling O/L tenderness point. (12)Abrasion of 6 cm x 0.3 cm on Rt forearm medially upper 2/3. (13)C/o (complaint of) pain back of chest upper 1/3 left side on mid line O/L tenderness point. From these injuries, it cannot be inferred that those injuries have been inflicted with an intention to eliminate Karni Singh. In view of the above reasons, the conviction of the appellants under Section 307 IPC cannot be 11 sustained. Learned Public Prosecutor relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Kishnia and ors. vs. State of Rajasthan reported in 2004(2) WLC (SC) Criminal 755. The ratio decided in this case has no application to the facts of this case. Learned Public Prosecutor has relied upon another judgment of the Hon'ble Supreme Court delivered in the case of Thaman Kumar. vs. State of Union Territory of Chandigarh reported in 2003(2) WLC (SC) Criminal 16, in support of his contention that where there is conflicting medical evidence with oral evidence, then direct evidence can be relied upon and the trial court rightly relied upon the direct evidence. Said judgment has no application to the facts of this case so far as the conviction of the appellants under Section 302 and Section 307 IPC are concerned, because of the reason that in this case, there is no evidence how the victim died and there is no evidence that the accused had any intention to commit murder of either of the victims. The accused persons have been convicted under Section 364 IPC which is an offence of kidnapping or abducting in order to murder. As per the above findings wherein it has been held that the prosecution failed to prove that the accused have committed murder and the 12 prosecution has failed to prove that the accused had any intention to murder any of the victims and from the injuries, it cannot be inferred that any injury was inflicted upon the deceased Peerdan Singh which could have put the victim in the danger of being murdered, therefore, it is not proved that victim Peerdan Singh was kidnapped or abducted in order to kill him. Therefore, the conviction of the appellants under Section 364 IPC cannot be sustained. As far as the commission of offence under Sections 325 and 323 IPC by the appellants no.1 and 2 – Mangi Lal and Sheopat Ram is concerned, there is direct evidence of the witnesses DW1 Karni Singh who himself is victim and his statement has been corroborated by PW5 Vimla, PW8 Chandra Singh and PW16 Guman Singh, who clearly stated that the accused persons inflicted injuries causing fracture in both the knees of the deceased Peerdan Singh and other simple injuries and one grievous injury upon the victim Karni Singh. X-Ray report Ex.P/18 for injury no.1 shows that the injury no.1 was grievous. The injuries referred above are grievous as defined under Section 320 IPC and are punishable under Section 325 IPC. The enmity between the accused and the complainant is an admitted fact and in that background, there is no reason to disbelieve the statement of the prosecution witnesses PW1 Karni 13 Singh, PW5 Vimla, PW8 Chandra Singh and PW16 Guman Singh, so far as it is about causing grievous and simple injuries by the appellants no.1 and 2 - Mangi Lal and Sheopat Ram is concerned and the prosecution fully established this fact. Therefore, the conviction of the appellants no.1 and 2 – Mangi Lal and Sheopat Ram under Section 325 and Section 323 IPC is sustained. The accused appellants no.1 and 2 – Mangi Lal and Sheopat Ram also wrongfully restrained the deceased Peerdan Singh as well as the injured Karni Singh and, therefore, they are convicted under Section 341 IPC. So far as involvement of appellant no.3 – Smt. Sharda is concerned, the evidence is required to be considered in detail because of the reason that the injured witness PW1 Karni Singh in his statement before the trial court named appellants no.1 and 2 – Mangi Lal and Sheopat Ram and assigned specific act of commission of inflicting injury upon the deceased as well as upon Karni Singh himself. He did not state that the appellant no.3 Sharda also gave beating to any of the victims including the complainant himself. He only stated that Mangi Lal's wife also came with Mangi Lal, Jetha Ram and Sheopat Ram. He also stated that Mangi Lal's wife said to Sheopat Ram that the villagers have come and then Sheopat Ram took a lathi in his hands and asked the villagers that if they want to die, they may 14 come near and in case, they want to live, leave forthwith. In cross examination, he only stated that the beatings were given by the accused, the above two appellants Mangi Lal and Sheopat Ram and in total 8 men and 2 ladies. At this stage also, he did not name appellant no.3 Sharda for beating them. In cross examination, he stated that he does not know whether Mangi Lal's wife remains under veil or not ? And he stated that he cannot tell where Mangi Lal's wife gave beating to him or his brother. Another witness is PW2 Barkat Ali who only stated that Sheopat Ram and others gave beatings to the victims. He also did not name the appellant no.3 and stated that there was one woman who said to Sheopat Ram that villagers have come. He also does not identify that lady as Sharda (appellant no.3). In cross examination, he admitted that he did not saw the actual beating by the accused to Peerdan Singh and Karni Singh. PW3 Suresh Kumar has also not involved Sharda in the crime. PW4 Vijay Singh, neighbour of the agricultural field of Sheopat Ram, stated that Vimla, the sister of one of the victims, told him that Sheopat Ram, Mangi Lal and Mangi Lal's wife gave beatings to the victims. He is not the eye witness and his statement involving Sharda is nothing but a hearsay evidence. PW5 Vimla is also an important witness and she was knowing Smt. Sharda but she also stated that on 15 the spot, Sheopat Ram, Mangi Lal and 2 ladies came and she did not name appellant no.3 Sharda. She gave details about the injuries inflicted by the appellants no.1 and 2 to the victims but did not state that any of the above lady overacted or gave beating to any of the victim. In cross examination, she only stated that there were two ladies also on the spot. Coupled with the above fact, it is important that as per Ex.P/1, there were 5 named accused and 4-5 more persons, who were shown involved in the crime. Even after investigation, those persons could not be identified and furthermore, as per the statement of the investigating officer - PW17 Rameshwar Bhati, no case was found against Jetha Ram s/o Pokar Ram and wife of Sheopat Ram. Therefore, it appears that there is no evidence of the eye witnesses against appellant no.3 Smt. Sharda in inflicting any of the injuries upon any of the victims. The statements of the witnesses are absolutely vague. Smt. Sharda cannot be convicted only on the ground of the alleged recovery of one lathi in furtherance of the information given under Section 27 of the Evidence Act. Since the presence of appellant no.3 Sharda on the spot itself is doubtful, therefore, her conviction under Sections 341, 323 and 325 IPC also cannot be sustained and she deserves to be acquitted from the charges referred above. 16 In the result, the appeal of the appellant no.3 Sharda is allowed and she is acquitted from the charges under Sections 302, 307, 341, 323, 325 and 364 IPC. She is already on bail. Her bail bonds stand cancelled and she need not to surrender. The appeal of the appellants no.1 and 2 – Mangi Lal and Sheopat Ram is partly allowed. The conviction of the appellants no.1 and 2 under Sections 302, 307 and 364 IPC is set aside. However, their conviction under Sections 341, 323 and 325 IPC is maintained. We do not find any just reason for reducing the sentences of the appellants no.1 and 2 lower than as awarded by the trial court to them for the offences under these Sections, for which learned counsel for the appellants prayed. Accordingly, they will serve out the remaining part of sentence as awarded to them. The appellant no.1 Mangi Lal is on bail as his sentence was suspended vide order dated 26.5.2006 and hence, he shall surrender forthwith to serve the remaining part of the sentence. (BHANWAROO KHAN), J. (PRAKASH TATIA), J. S.Phophaliya