1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T 1. CRIMINAL APPEAL No. 224 of 1985 STATE OF RAJASTHAN V/S BALWANTA & ANR. 2. CRIMINAL APPEAL No. 287 of 1983 BALWANTA & ORS V/S STATE Date of Judgment : 09th April, 2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI C M TOTLA,J. Mr. KR BISHNOI, Public Prosecutor, for the State. Mr. PN MOHANANI, for the accused. BY THE COURT: (PER HON'BLE GUPTA,J.) Both these appeals have been filed against the same judgment of the learned Sessions Judge, Jalore dated 6.8.1983, convicting the three appellants of the offences under Section 326/34, and sentencing each of the accused to three years' rigorous imprisonment along with fine of Rs.200/-, in default to undergo one year's rigorous imprisonment, and also convicting each of them for the offence under Section 447 IPC, and sentencing to undergo two months' rigorous imprisonment. Appeal No.287/83 has been filed by accused 2 persons, seeking to challenge that conviction; while appeal NO.224/85 has been filed by the State, seeking to challenge the acquittal of the accused persons, of the offence under Section 302 IPC. Thus both the appeals being arising out of the same judgment, are being decided by this common judgment. The facts of the case are, that on 22.10.1982 statement of one Jutha were recorded by the C.O., to the effect, that in village Sewadi he went to his field, known as Dabaliwala. Then it was deposed that at about 8 in the morning, he along with his father Kalu Ram had gone to his field to plough. His father Kalu Ram was ploughing by tractor, while he was sitting on the fencing. After working for half an hour their neighbours Balwanta son of Rupa, Bagda son of Kheta and Uka son of Chopa came to their field. Balwanta was armed with Lathi, Bagda was armed with Dhariya and Uka was armed with Farsi. Immediately Balwanta dealt a Lathi blow on neck of Kalu Ram, and then pulled him down from the tractor, and dragged him. Then Bagda dealt a Dhariya blow on the left hand of Kalu, and Uka dealt a Farsi blow on Kalu Ram. Kalu Ram cried, thereupon he also raised a cry. Since tractor was in motion it travelled ahead, and automatically stopped. All the three accused persons started showering indiscriminate blows on Kalu Ram. Looking to this he rushed to save him and went to his cousin grandfather Bagta, and narrated the whole thing to him. Thereupon Bagta rushed to the field, he also called to Pancha and Jeta, who also came with him on the field. When he reached back to the field, his father was lying in a pool of blood. Bagta, Pancha etc. asked his father, and to 3 them shrieking, his father stated, that the three enemies Balwanta, Bagda and Uka have given this severe beating to him with Lathi, Dhariya and Farsi, and that he is feeling uncomfortable. Thereupon his father was carried to Bhinmal hospital in the tractor. However when they reached bit ahead of Jujani, Kalu Ram died. The dead body was lying in the tractor trolley. It was also alleged, that there is litigation pending between them on one hand, and accused on the other hand, as the accused persons wanted to grab their land, and for that motive, the incident has been committed. On this report, an FIR was registered for offence under Section 302/447 IPC, and investigation was commenced. After investigating the matter, charge sheet was submitted against the three accused persons for the offences under Section 302/34 and 447 IPC. The case was then committed. The learned trial Court framed charges for the offence under Section 302 read with Section 34 and Section 447 IPC against all the three accused persons. The accused persons denied the charges. During trial the prosecution examined 15 witnesses, and tendered in evidence 26 documents. In the statements under Section 313, accused persons adopted a stand of denial. The accused Balwanta and Bagda took a plea of denial by contending that they had gone to Bhinmal to attend hearing in the court, and have been falsely implicated, while the accused Uka stated to be innocent and having been falsely implicated. To prove the plea of alibi, the accused persons examined two witnesses in defence, being D.W.1, the Reader of the Court of Bhinmal, and D.W.2 Bhanwar Singh, an Advocate of Bhinmal. The learned trial Court after completing the trial, and 4 hearing the accused, found that from the evidence it is not established, that accused persons intended to cause death, and that the deceased has not died on account of any particular injury causing death of the deceased. Consequently they were convicted for offence under Section 326/34 IPC, and also for the offence under Section 447 as above. Assailing the impugned judgment, the learned counsel for the accused persons submitted, that the learned trial Court has erred in convicting and sentencing the appellants as above. According to the learned counsel, from the material on record, it is not at all established, that any of the accused persons gave any beating to the deceased. The witnesses produced by the prosecution are not reliable, they are close relatives of the deceased, and the independent witnesses, who were produced, being P.W.3, P.W.6 and P.W.7, have not supported the prosecution case. It was submitted that the conduct of the star witness P.W.1 Jutha is thoroughly suspicious, rather it clearly shows that he was not there at the seen of incident, and is simply projecting himself as eye-witness. Likewise, some contradictions and discrepancies, appearing inter-se in the statements of P.W.1, P.W.2, P.W.4 and P.W.5 were highlighted, to contend, that no reliance can be placed on such evidence. It was then submitted, that the prosecution has manipulated the things, inasmuch as, the Lathi and Farsi were lying on the scene of incident itself, still the investigation has purported to recover another Lathi and Farsi, purportedly on the information of, and at the instance of, the concerned accused, which shows, that all 5 attempts were made by the investigation to create false evidence. It was also submitted, that the accused and the deceased were already on litigating terms, as would be clear from Ex.P/25 and P/26, and in order to settle those scores, they have been falsely implicated in the case. It was then submitted, that the deceased was a notorious person in the locality, and used to pick up fight with anybody, and was having a good amount of litigation. In other words he had a battery of enemies, and therefore, some unknown enemy must have killed him, and the accused persons have been falsely roped in. On the other hand, learned Public Prosecutor, while supporting the impugned judgment submitted, that there were as many as 21 injuries on the person of the deceased, he was mercilessly beaten, practically to death, and the victim has died soon after the incident, while going to hospital. In such circumstances, the learned trial Court was in error in acquitting the accused persons of the offences under Section 302. It was submitted that admittedly the parties were on inimical terms, and therefore, to settle the enmity, the three accused persons, in a body, duly armed with deadly weapons, like Dhariya and Farsi trespassed over the field, and finding the victim alone, ploughing the field, attacked and caused such huge number of injuries, which could be with no intentions, other than of causing death and therefore, the accused persons are liable to be convicted for the offence under Section 302/34. In rejoinder learned counsel for the accuseds 6 submitted, that from the injury report, it is clear, that there is no injury on any vital part of the body, all injuries, even according to the prosecution have been caused on lower limbs. Whatever injuries were found even on the back or chest, they have been resulted into only one fracture at 5th and 7th rib, which also have not caused any injury to any internal organ, even liver was only contused, but all internal organs of the body were found to be healthy. If the accuseds at all intended to cause death, since they are alleged to be armed with deadly weapons, and there was nobody on field to prevent them, they could have straightway aimed deadly blows with Dhariya and Farsi on the head or neck, or such other vital part of the body. Thus, it cannot be said, that even if the accused are found to be guilty, their act falls in any of the clauses of Section 299 or 300. Thus, they have been rightly acquitted of the offence under Section 302. We have heard learned counsel, and have gone through the record very closely, and carefully. At the outset, it may be observed that happening of the occurrence on the field of the deceased, the deceased having sustained injuries mentioned in the post mortem report, and his having died, so also the fact that there was litigation pending between the parties, are facts which are not in dispute. From a look at Ex.P/25 it appears that the complaint was lodged by the deceased, against as many as 14 persons, which included all the three accused persons. 7 In the above background, now we proceed to examine the evidence on record. The star witness in this regard is P.W.1, of course he is the son of the deceased, however, a look at his statement shows, that he has deposed that on the fateful day at the time of day break, he along with his father Kalu deceased went to the field with the tractor to plough. The field was ploughed for half an hour, while the witness was sitting on fencing. At that time, the three accused persons present in the Court came on the field, Balwanta was armed with Lathi, Bagda was armed with Dhariya and Uka was armed with Farsi. At that time, accused Balwanta inflicted a Lathi blow on the neck of Kalu Ram. Then all the three persons dragged him down from the tractor and after his so falling down, Bagda dealt a Dhariya blow on the left hand of the victim, while Uka dealt a Farsi blow on the right hand of the victim. Since tractor was in motion, it stopped itself after travelling to the field of Rebari. All the three accused persons continued to give beating to his father. Then he raised a cry and rushed to the Dhani of Bagta, narrated the whole thing to him, after so narrating he called to Panchiya, to him also he narrated the whole thing. Then Jeta also followed him. Thus he, along with Jeta and Panchiya also came on the field, at that time Bagta was standing near his father. His father was lying in pool of blood. Bagta and Panchiya had asked his father, as to how is he, whereupon his father narrated, that Balwanta, Uka and Bagda has given him such a beating with Dhariya, Farsi and Lathi. Then they carried the victim upto Nadi in the tractor, then placed him in the trolley, and then carried to Bhinmal hospital. 8 On the way at Jujani his father died. Then they carried the dead body to Bhinmal hospital, and lodged a verbal report to D.S.P., whereupon statements were recorded, which are Ex.P/1 and bears the signatures A to B and C to D. He has then stated that accused persons wanted to grab their Dabliwala field, therefore, they had committed the incident against his father. There is already litigation pending in this regard. Then he has proved various memos prepared by the police, and has proved the signatures thereon. He has then deposed that when he along with Panchiya and Jeta came back on the place of incident, at that time, Dhariya and Lathi were not lying on the field, however, on the next day when the police investigated the site, Lathi and Dhariya were lying on the spot, and therefore, he does not know as to how these weapons happen to be come at spot next day. He has identified Article 1 to be the footwear of his father. He was subjected to long drawn cross-examination, wherein he has stated, that the land was being ploughed with disc plough. He does not remember, as to at what time they started from their house, and within how many minute they reached on the field. However, it must have taken 15 to 20 minutes, land was ploughed for half an hour and then the accused persons came. He stated that he was sitting at a distance of 15 to 20 paces from the place where his father was ploughing. When beating was being given to his father he did not go near him, the accused persons had seen him. However, when he ran, the accused persons did not chase him. He has stated that Dhani of Bagta is at a distance of 400 to 500 paces from their field, and he took 5 to 6 minutes to reach there, as he had gone running. On the way, there are fields of Galba Suthar, Bhibha Bishnoi, Poonam, 9 Moti Rebari, Jeta Kalbi and Darga Kalbi etc., but he did not see as to whether they were working on the field or not, however, while going he did not find any person on the way. According to him Dhani of Bagta and Pancha are nearby each other. Then he has stated that his cry did not attract any body, he did not see, as to whether anybody was working in the nearby fields. He narrated the entire thing to Bagta and within 4 to 5 minutes he along with Panchiya and Jeta reached back to the field. At that time accused persons had already gone away. He stated that his father was pulled towards left side of the tractor and was dragged to a distance of about 4 paces. He has also stated that as soon as the victim fell on the land injuries were inflicted with Farsi and Dhariya. Then he was dragged. He stated that when the accused persons started giving beating, he ran. He has also stated that all the accused persons had collectively given beating, therefore, he cannot say as to which accused caused injury on what part of the body of the victim. He has then stated that the deceased was dragged about 22 paces. According to him, the place to which the deceased was dragged was at a distance of 15 to 20 paces from the place where the deceased was sitting, and that he had run for help after the victim received some three injuries. He has also stated that the accused persons had collectively given beating, therefore, he cannot say as to how many injuries were caused by Farsi or Dhariya. He has stated that his father has told him that the accused persons want to grab the land. This was stated last year and earlier also. Then he has stated that Galba Suthar is his neighbour with whom also there is a dispute, a case was instituted against his father by Galba. He does not remember as to 10 that case was pending or not at the time of incident. He has admitted that 5 cases were pending against his father, instituted by police. He has denied to be aware about police having instituted a case, to the effect, that his father is a thief and “Badmash”. He has admitted that there is litigation with the accused for last number of years, but does not know, as to what is the subject matter of that litigation. He has denied that the litigations are on account of the cattle of the accused having trespassed into the field. He has denied the suggestion of absence of the accused persons at the place of incident. Then he has stated that from Sevadi to Bhinmal buses are available, one bus goes in the morning, and the second goes at about 9 in the morning. The distance between Sevadi to Bhinmal is 7 Kilo Meters. Then he has stated that the accused Uka also wanted to grab his field, and he does not know as to whether he had also filed a case against his father or not. However, the field of Uka is at some distance from his field, say about 200 paces. Then he has stated that he had informed to D.S.P., that on the first day, Dhariya and Lathi were not there on the spot, however, this is not so mentioned in the statement Ex.D/1. Then he has stated that when he went to call Bagta, he did not talk to his father, rather he had straightway rushed away. When Panchiya and Jeta came, his father was speaking. Then he has stated that distance between his own Dhani and the field is 400-500 paces, and the distance between his Dhani and Dhani of Bagta is same, and near to his field, and that in his own Dhani his mother, grandfather and uncle only live. Then he has stated that he did not inform his grandfather and uncle of the incident, rather straightway went to Bhinmal 11 hospital. However in the way message was sent to them through Gaja Choudhary. He has deposed that his uncle's son was engaged with the niece of Gaja, and that field of Gaja is near their Dhani. He has denied the suggestion about his Dhani being nearer to his field than that of the Dhani of Bagta. Then he has stated that there is a gole (hutment) situated on the field, which is visible from the place of incident. He knows Smt. Heera to whom that gole belongs. Then he has denied the suggestion about beating having been given to his father by some other enemies instead of the accused persons, and the accused persons were being falsely implicated. This is the entire evidence of P.W.1 Jutha. Then we come to the evidence of P.W.2 Bagta. This is a witness to whom P.W.1 had rushed immediately from the place of incident, and this witness had gone to the deceased and talked to him. He has stated that he knows the deceased, on the fateful day, shortly after day break Jutha being son of Kalu came to his Dhani and informed that his father is being beaten in Dabliwala field by the accused persons Balwanta, Bagda and Uka with Dhariya, Lathi and Farsi. Thereupon he immediately reached to the field, Jutha remained a bit behind, as he had gone to call Panchiya. When he reached the field, the three accused persons were giving beating to Kalu, which he could see from a distance of about 40 paces. Then he raised a cry, whereupon the three accused persons ran away. He stated that Balwanta was armed with a Lathi, Uka was having a Farsi and Bagda was having Dhariya in his hand, and were giving beating with respective weapons. He has then deposed that he went to Kalu, at that time he was alive and was conscious also, and 12 speaking. Shortly Panchiya and Jeta also came there along with Jutha, they asked Kalu, whereupon while shrieking, Kalu told that Balwanta, Bagda and Uka have given beating to him with Lathi, Farsi and Dhariyas. Kalu was feeling uncomfortable and was bleeding, and that they carried him to Nadi in the tractor, and therefrom they fetched a trolley of Bhikha Rebari, and started for taking him to Bhinmal hospital. However, near Jujani Kalu died. Then they brought him to the hospital at Bhinmal, and Jutha lodged a report. He also stated that the parties were at dispute on account of field. This witness was then cross-examined wherein he stated, that his Dhani is situated at a distance of about 4 fields from Dabaliwala, which should be around 300 to 400 paces. The Dhani of Kalu should be at a distance of 250 paces from the field, and might be nearer as compared to his own Dhani. He has stated that he cannot say as to what was the time when he reached the field of Kalu, as he doesn't understand in time, however he went to the field running. He stated that his statement was recorded by the police on the next day. Statement of Jutha were not recorded in his presence, nor Jutha was there when his statements were being recorded. He was confronted with his police statement Ex.D/2, however he stated, that he has deposed therein, that he had raised a cry from a distance about 40 paces, but he does not know as to why this is not so mentioned therein. He has then stated that he went to the field from south direction while the accused persons had gone away in the north direction. He had reached on the field through the fields of Jwara Suthar and Prema Bishnoi and Ambadas' field. He stated that he did not see the blow aimed with Dhariya by Bagda landing on Kalu nor did he see 13 the blow of Farsi caused by Uka to be landing on Kalu, nor the blow with Lathi by Balwanta landing on Kalu. Rather he saw that the victim was lying, and all the three accused persons were around him, and he raised a cry, thereupon the accused persons went away. He stated that Kalu was his real nephew. Police had instituted some cases against Kalu, which may be 4, 5 or 7 in number. They relate to the field and he does not know as to whether some cases may be regarding unauthorised grazing of cattle. Galba Suthar had instituted a case against Kalu for setting fire is a fact, which is not in his knowledge. Then he has stated that Kana Bishnoi had instituted a case against Kalu for theft. Then SHO Bagoda had also filed some case against the deceased about theft and other anti social activities, is also a fact, which is not in his knowledge. Then he has stated that tractor of Kalu was standing outside his field in the field of Rebari, Kalu was lying, and tractor was at a distance of about 12 to 13 paces, tractor was near the fencing of Rebari. Then he has stated that Gaja Choudhary met him near Nadi. He stated that while on tractor also he had some talk with Kalu, and Kalu told that he was feeling uncomfortable, at that time they were reaching near Jujani. Then he has maintained that the description of incident, which was given by Kalu on the place of incident was repeated by him at Jujani, though this fact is not mentioned in his police statement Ex.D/2. This is the evidence of Bagta. P.W.3, P.W.6, and P.W.7, as noticed above, have not supported the prosecution case, in the manner the prosecution desired, therefore, they were declared hostile. 14 Then P.W.4 Panchiya and P.W.5 Jeta have supported the prosecution case, to the extent, and about the fact that they are the witnesses. Learned counsel for the accused reiterated the criticism against reliability of these three witnesses as was advanced before the learned trial Court. In order to appreciate that, precisely, we have again closely read, and have scanned the evidence of all these witnesses P.W. 1 to 7, and even after re-appreciation we find ourselves one with the appreciation of their evidence, as made by the learned trial Court, and do not stand advised to repeat the same in extenso. In our view the two witnesses P.W.1 Jutha and P.W.2 Bagda, inspire implicit confidence. So far the discrepancy on the aspect of recovery of the weapon of offence are concerned, in that regard also, we are at one with the conclusions arrived at by the learned trial Court, inasmuch as, it clearly appears, that the two articles were subsequently introduced on the place of incident, which