1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Laleng and others. vs. State of Rajasthan. D.B.CRIMINAL APPEAL NO.1130/2003 UNDER SECTION 374 CrPC AGAINST THE JUDGMENT AND ORDER DATED 5.9.2003 PASSED BY SHRI C.K. SONGARA, ADDITIONAL SESSIONS JUDGE (FAST TRACK) NO.1, BANSWARA IN SESSIONS CASE NO.25/2003. DATE OF JUDGMENT ::: May 20th, 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. In all fifteen (15) accused faced trial in 2 Sessions Case No.25/2003 in the Court of learned Additional Sessions Judge (Fast Track) No.1, Banswara. The learned trial court vide judgment dated 5.9.2003 convicted only three accused who are appellants and they are awarded punishment as under :- Offence Punishment Section 302 IPC To undergo rigorous imprisonment for r/w 34 IPC life with a fine of Rs.4,000/- and in default to further undergo 1 month's rigorous imprisonment. Section 364 IPC To undergo rigorous imprisonment for r/w 34 IPC ten years with a fine of Rs.1,000/- and in default to further undergo 1 month's rigorous imprisonment. Hence, the three appellants Laleng s/o Wajeng, Kuria s/o Laleng and Laleng s/o Dalji have preferred this appeal. Appellant no.1 Laleng s/o Wajeng died and, therefore, his appeal abated and consequently, the present appeal is of Kuria s/o Laleng and Laleng s/o Dalji. As per the prosecution case, on 28.1.2001, complainant Waleng s/o Mongji Patidar gave a written report Ex.P/3 in the Police Station Gadi, District Banswara stating therein that his father had gone to 3 Mehman and he was coming to his house from there at 5:30 PM and the complainant was coming behind him along with Dhulji s/o Waleng and Babu Lal s/o Mania. When his father reached near the house of Jitendra, then 15 persons who are family members and relatives of Laleng s/o Dalji stopped the complainant's father and lifted him and took him into the house of accused Laleng s/o Dalji and there, the complainant's father has been murdered and thereafter, after half an hour he was thrown out on the way. At that time, Laleng had Kulhari in his hand, Laleng s/o Wajeng had Kassi in his hand and Kuria had lathi in his hand. Other accused also had lathies with them. When complainant's father was being taken in the house of Laleng, other accused were beating the complainant's father. The complainant did not intervene because of the reason that there were large number of accused and due to fear, the complainant rushed towards the village and told about incident to Dhoolji s/o Gautam, Wajeng, Pemji, Dalji s/o Gautam and he came with above persons back. When they reached back, they found that the accused persons were bringing back the complainant's father and they threw the victim on the road in front of the house of Laleng s/o Wajeng Kadeya. The complainant found his father dead there. He submitted this report at about 7:15 PM in the Police Station, Gadi. In the complaint, he mentioned that there is old rivalry between the 4 accused and the family members of the complainant. On this report, a case no.31/2001 for offence under Sections 147, 148, 149 and 302 IPC was registered vide FIR Ex.P/4. During investigation, in the presence of five panchas, panchnama of body of deceased and its position where body was found was prepared (Ex.P/2), site maps and its report Ex.P/5 were prepared. Statement of witnesses were taken and body was sent for post mortem and post moretem report (Ex.P/11) was obtained. The deceased's clothes were taken in possession and memo Ex.P/7 were prepared. The accused were arrested and a wooden portion of the part of the gate of house of accused Laleng was also taken into possession and for that memo Ex.P/9 was prepared. Accused gave information under Section 27 CrPC and the weapons of offence which are lathies, kassi and kulhari were recovered from the accused for which recovery memos Ex.P/13 to Ex.P/18 were prepared. The relevant articles were sent for their examination by the Forensic Science Laboratory and FSL report Ex.P/43 was obtained. After investigation, the police filed challan against 15 accused under Sections 148, 364 and 302/149 IPC. The case was committed to the Court of Sessions Judge, Banswara from where it was transferred to the Court of Additional Sessions Judge (Fast Track) No.1, Banswara. Charges were framed against 15 accused under 5 Sections referred above and all the accused denied the charges and sought trial. At the trial, the prosecution produced PW1 Babu Lal, PW2 Dalji, PW3 Laleng s/o Mongji, PW4 Dhoolji s/o Gautam, PW5 Dhoolji s/o Wajeng, PW6 Dr.S.K. Bhatnagar, PW7 Wajeng, PW8 Ramlal, PW9 Kuriya, PW10 Pemji, PW11 Dhoolji, PW12 Manohar Lal, PW13 Kachru, PW14 Pawan Kumar, PW15 Laleng s/o Kachru Lal, PW16 Jagdish Narayan and PW17 Rajendra @ Ramji. The statements of accused appellants were recorded under Section 313 CrPC wherein accused persons stated that due to rivalry, they have been wrongly implicated in this false case. It was also stated by the accused Laleng s/o Wajeng that the dispute with respect to one land was going on and in that connection, he has already lodged several cases against the complainant and the witnesses and, therefore, he has been wrongly implicated. In defence, one witness DW1 Kuria s/o Laleng was examined. The trial court, by the impugned judgment, convicted only three accused Laleng s/o Wajeng, Kuria s/o Laleng and Laleng s/o Dalji and rest of the accused were acquitted from the charges levelled against them. As stated above, appellant no.1 Laleng s/o Wajeng died and, therefore, his appeal abated. Learned counsel for the appellants submitted that the entire story of the prosecution is concocted one 6 and is an outcome of only a conspiracy of the complainant and his witnesses who have inimical relations with the accused party and because of that inimical relations, several cases have already been lodged in the Police Station. Learned counsel for the appellants tried to draw our attention to the contradictions in the statement of various witnesses and also submitted that even information Ex.P/3 submitted by the complainant is false complaint involving 15 persons, which is proved from the complainant's own statement. In his statement before the Court, he did not allege a single word against 12 accused persons inspite of the fact that in Ex.P/3, the first written report given by complainant Laleng dated 22.8.2001 containing the names of 15 persons. Therefore, falsely implicating of 12 innocent persons by the complainant in a murder case is sufficient to hold that he can falsely implicate the appellants also. It is also submitted that a bare look at the post mortem report will reveal that there are though 15 injuries on the body of the deceased but all are bruises and most of them are not on vital parts. The cause of death as given in the post mortem report dated 29.1.2001 (Ex.P/11) is due to the injury in both the lungs causing Haemothorax and associated pressure on neck causing asphyxia. Therefore, firstly it is a totally false case and secondly, at the most, it can be 7 a case of frightening of the victim by the accused persons and in that try of frightening the victim, the accused might have caused injuries on his neck which may have caused his death. Learned Public Prosecutor submitted that there is direct evidence of the witnesses and the oral evidence of the witnesses cannot be discarded merely because of the close relationship of the witnesses with the deceased or because of mere some inimical relations of the complainant party with the accused. It is submitted that the blood stained part of the wood from the door of the house of the main accused was sent for chemical examination and FSL gave report that part of wood had not only human blood but the blood was identified to be of Group 'O' and which is the blood group of the deceased and there is no reason to disbelieve this material evidence which supports the oral statement of the prosecution witnesses. It is also submitted that the enmity cannot affect the credibility of the witnesses when the enmity itself is the cause for commission of offence. The witnesses clearly stated that the victim was dragged and, therefore, his blood came on the door obstruction and that clearly proved that the victim was taken in the home and was dragged out and thrown on road. The accused also caused injury on the neck of victim which has caused asphyxia 8 resulting in the Haemothorax and injury to lungs resulting in the death of victim. 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. It is clear from the statement of complainant PW3 Waleng s/o Mongji that he submitted written report Ex.P/3 to the police and he levelled allegations against 15 persons in Ex.P/3 but in the statement in the Court as PW3, he levelled allegations against 3 accused, who are appellants and have been convicted by the trial court after considering the statement of complainant PW3 and other witnesses. The trial court acquitted 12 accused who were not involved by the complainant and his witnesses in the crime. In view of the above acquittal of 12 accused, the charge under Section 149 IPC also has not been proved against the appellants who are three only and one of whom died during pendency of this appeal. The appellants have been convicted under Sections 364/34 and 302/34 IPC as charge under Section 149 IPC could not be proved by the prosecution. The contention of learned counsel for the appellants that the testimony of the witness PW3 Waleng 9 is liable to be rejected because of the reason that he levelled false allegations of murdering his father Mongji against 12 innocent persons and, therefore, he has implicated the appellants falsely in the present case of killing his father because of the reason that in the report submitted by PW3 Waleng, he mentioned that all those other persons were standing on the way from which complainant's father was going to his house. He mentioned in the complaint that only appellant Laleng s/o Dalji lifted the victim and took him inside the house where he was murdered. PW3 Waleng further stated that appellant Laleng s/o Dalji was taking the deceased to his house and other accused were beating. The specific act has been assigned to Laleng s/o Dalji and vaguely, it is stated that the other accused were giving beating to the deceased when he was lifted in the hands by Laleng s/o Dalji. In the complaint Ex.P/3, it is further mentioned that Laleng s/o Dalji had kulhari in his hand, Laleng s/o Wajeng had Kassi in his hand and Kuria had one lathi in his hand. Therefore, complaint Ex.P/3 involved the other accused persons in stopping the deceased or at the most, they were present so that the deceased may not run away. Since other persons' presence has not been proved from the evidence of the complainant PW3 Waleng himself, therefore, on the basis of non-involvement of 12 above accused by the complainant in his statement before the court, the 10 evidence which is separable involving the three appellants, cannot be discarded. The prosecution examined three eye witnesses - one complainant PW3 Waleng, PW1 Babu Lal and PW5 Dhoolji s/o Wajeng. PW1 Babu Lal and PW5 Dhooji were declared hostile as they resiled from their earlier statement but so far as corroboration to the statement of PW3 Waleng is concerned, that corroboration is from the statement of the witnesses who reached on the spot immediately after the injury and they are PW4 Dhoolji s/o Gautam, who stated that he reached to the house of Laleng s/o Wajeng running and he stated that the victim Mongji was killed by Laleng s/o Dalji and was thrown out. Appellants Laleng s/o Wajeng and Kuria s/o Laleng were also there. PW3 Dalji stated that when he reached on the spot, he found Mongji lying outside the house of Laleng s/o Wajeng and Mongji was dead. PW7 Wajeng s/o Pemji also stated that when he reached running to the house of Laleng s/o Wajeng, they found Mongji died there and the accused were dragging out. Immediately after the incident, in the presence of the accused appellants, he saw the body of Mongji with the injuries on neck and stated that Mongji's neck was broken and he had several injuries on his body including on chest, back and almost on entire body. His neck turned round. However, he is not eye witness to the incident but he saw the event just after the incident and proved the 11 fact that Mongji was taken out from the house in dead condition with several injuries. PW5 is also another person with same name Dhoolji s/o Wajeng. He was declared hostile but so far as his seeing the dead body of Mongji in the house of appellant Laleng is concerned, he is witness to that event. PW10 Pemji is witness in whose presence, the memo of dead body was prepared on the spot and also witness to taking possession of the part of the wood from the door of the house of Laleng which had blood over it. From his evidence, it is also proved that the body of deceased was found in the front of the house of the accused and corroborates the contention of the complainant and other witnesses that the deceased was killed by the accused persons and was dragged from the house to the road and in that, the obstruction of the gate of house of accused Laleng got the blood stains. The blood stains on the said part of wood (dally) were of human being as well as had same blood group 'O' which was the blood group of the deceased. The injuries on the body of the deceased as noticed in the post mortem report corroborates the oral statement of the witnesses that when the victim was dragged out of the house where he was given beating, the blood was coming out from the body. In view of the above reasons, the trial court rightly held that the above accused apprehended the 12 victim Mongji, took him in their house and gave beating and finding him dead, they threw him out on the road. The finding is based on the evidence of the witnesses mentioned above, supported by the medical evidence and from the injuries which are mentioned in the post mortem report. The question now survives is whether the appellants are guilty of committing offence of murder punishable under Section 302 IPC. For this, the injuries of the body of victim and the medical evidence are relevant. As per the injuries recorded in the post mortem report, there are total 15 injuries, out of which, injury no.1 to 5 and 7 to 10 are bruises and rest are “neelgu”. All the injuries have been inflicted by the blunt weapons. The cause of death is not because of any injury from injuries no.1 to 4, 6 to 10 and 12 to 15. PW6 Dr.S.K. Bhatnagar stated that the fracture of thigh bone could not have been cause of injury no.5. Injury no.11 is on the back of the victim. None of the injuries has been inflicted by any sharp edged weapon and further, it is relevant that all the simple injuries are near the eyes, ears, nose, cheek, back of left hand, both the legs and left thigh. Injury no.5 is on the chest and injury no.11 is on the back of the body. The victim died because of the injury in both the lungs causing Haemothorax and associated pressure on 13 neck causing Asphyxia. Therefore, the statement of PW6 Dr.S.K. Bhatnagar that the victim's ribs no.3, 4 and 5 were found broken, part of lungs were found teared in the left side, back side of ribs no.5 to 7 were broken. PW6 Dr.S.K. Bhatnagar also stated that the victim died because of the injury on the lungs and consequential collection of blood in the cavity and due to heavy pressure on neck resulting into Asphyxia. Therefore, it appears that the victim was killed by inflicting injuries on the vital parts and the accused had knowledge that the injuries are likely in the ordinary course to cause death of the victim. Learned counsel for the appellants vehemently submitted that it may be an effort of the accused appellants to threaten the victim only and, therefore, they did not inflict any injury by any sharp edged weapon nor they have inflicted any injury by blunt objects on the vital part of the body of deceased repeatedly. All the injuries which are on hands, legs, thigh and cheeks may also be to teach a lessor to the victim but not to eliminate him. Therefore, looking to the totality of the facts of the case, the conviction of the appellants under Section 302 IPC deserves to be set aside. We considered this aspect of the matter also. It may be true that the complainant in his original 14 complaint stated that Laleng s/o Dalji was having kulhari, Laleng s/o Wajeng was having kassi and Kuria s/o Laleng was having lathi. The recovery of these weapons have not been accepted by the trial court and, therefore, it appears that the accused took the victim Mongji forcibly to their house and there, they inflicted injury with blunt weapons but with force that cause fracture in the ribs resulting into piercing of ribs into lungs causing damage to the lungs. They also inflicted injury on the neck of the victim. All these injuries were on vital parts of the body of the deceased. In view of the above, the accused were knowing it well that because of the injuries inflicted by them, the victim is likely to die. From the evidence of the prosecution, it is fully established that accused with premeditation inflicted injuries on the victim and that too after taking him into the house where the victim was under full control of the accused persons. Since the prosecution fully established that the victim was taken in the house and was given beating and he was dragged out of the house and in that process, the door of the house of the accused got the blood stains which were of the deceased and, therefore, it is established that after murder of the deceased, the accused thrown him out. The helpless person was killed 15 with so many injuries, therefore, the trial court convicted the accused appellants under Section 302 read with Section 34 IPC as well as under Section 364 read with Section 34 IPC. We do not find any merits in this appeal. Accordingly, the appeal of the appellants no.2 and 3 namely, Kuria s/o Laleng and Laleng s/o Dalji is dismissed. The appeal of the appellant no.1 Laleng s/o Wajeng already stands abated. (BHANWAROO KHAN), J. (PRAKASH TATIA), J. S.Phophaliya