IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T 1. CRIMINAL APPEAL No. 1050 of 2003 Raju Puri & Anr. V/S The State of Rajasthan 2. CRIMINAL APPEAL No. 876 of 2003 Shambhu Puri V/S The State of Rajasthan 3. CRIMINAL APPEAL No. 926 of 2003 Sohan Puri & Ors V/S The State of Rajasthan Date of Judgment : 20th Feb. 2009 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARY,J. Mr. Doongar Singh, Mr. Sandeep Mehta & Mr. Suresh Kumbhat, for the appellants. Mr. A.R. Nikub, P.P. REPORTABLE BY THE COURT: (Per Hon'ble Gupta, J.) These three appeals have been filed against the same judgment of the learned Addl. Sessions Judge (F.T.) Pratapgarh dt. 5.8.2003, passed in Sessions Case No. 226/2001, convicting the appellant Rajupuri for the offence under Section 302 IPC, and sentencing him to imprisonment for life with a fine of Rs. 5,000/-, in default of payment to undergo six months simple imprisonment, and convicting the other accused persons for the offence under Section 302 read with Section 149 IPC, and sentencing each of them to undergo imprisonment for life with a fine of Rs. 3,000/-, in default of payment of fine to undergo simple imprisonment for three months, and further convicting all the seven accused persons for the offence under Section 148 IPC, and sentencing them to undergo one year's rigorous imprisonment with a fine of Rs. 1,000/-, in default to undergo three months simple imprisonment, so also convicting all the seven accused persons for the offence under Section 323 read with Section 149 IPC, and sentencing them to six months rigorous imprisonment along with a fine of Rs. 500/-, in default to undergo one month's further simple imprisonment, and ordering all the sentences to run concurrently. Appeal No. 1050 has been filed by the appellants Raju Puri and Udai Puri, while Appeal No. 876 has been filed by Shambhu Puri, and Appeal No. 926 has been filed by the accused Sohan Puri, Kailash Puri, Suresh Giri, and Shyam Puri. Since all the three appeals seek to challenge the same judgment, these appeals are being decided by this common judgment. The facts of the case are, that on 2.9.2001 one Puran s/o Dhulia r/o Devri lodged an oral report at 11 A.M. at hospital, Badi Sadri, to the S.H.O. Nikumbh, to the effect, that in the last evening at 2 about 8-9 P.M. he along with his mother Raju Bai, grand mother Kastoori, sister Chhagani, younger brother Suresh, elder brother Nakshtra and father Dhulia were sitting. Father was relaxing, and singing religious songs, while his wife was cooking food. After the food was ready, he called his father to take dinner whereupon the father came inside, and started taking dinner. At that time outside the house, Raju Puri, Sohan Puri, Kailash PUri, Shambhu Puri, Udai Puri, Suresh Giri and Shyam Puri residents of Devri came in a body duly armed with Lathis, and Kulhari, and called Dhulia to come out, as Dhulia's sons had committed theft of corn (भट / मकय), whereupon his father denied the allegation, and came out with a pitcher of water taking oath in the name of Ganges, that his sons had not committed any theft of corn, but the assailants started showering blows with axe and Lathis on Dhulia, with intention to kill him. The informant, his brother, mother and grand mother intervened. Raju Puri inflicted 2-3 axe blows on the head of Dhulia, the other accused inflicted Lathi blows. Udai Puri gave kicks and fists blows. In the process of intervention injuries were caused on the other parts of the body of the deceased, and his one hand was broken. In the process the informant, his sister, mother, grand mother, and Suresh received injuries. At the time of incident Vaktu Puri also came, and it was with great difficulty, that they 3 could secure their release. However, the accused persons went a bid ahead, and kept sitting outside the house, therefore, they could not come in the night, and at about 5-6 in the morning, his sister Chhagani went to Palakheri to call his Bhua's son Nanda, who brought tractor from Pinodara, wherein Chhagani and Nanda carried his father for treatment at Badi Sadri, and immediately thereafter his father died. On this report a case under Section 147, 148, 323, 302/149 IPC was registered, and investigation commenced. Thereafter after completing the purported necessary investigation, challan was submitted in the Court of Addl. Chief Judicial Magistrate, Badi Sadri, wherefrom the case was committed to the Court of Sessions Judge, Pratapgarh, wherefrom it was transferred to the trial court. Learned trial court charged all the accused persons for the offence under Section 147, 148, 302, and in the alternative 302/149 so also for the offence under Section 323 and in the alternative 323/149 IPC. The accused denied the charges. During trial the prosecution examined some 19 witnesses, and tendered in evidence 39 documents. Statement of the accused were recorded under Section 313 Cr.P.C. wherein they adopted a stand of denial, while Shambhu Puri, Suresh Giri, Udai Puri, Kailash Puri and Mohan Puri stated that the complainant party are being prosecuted for 4 committing theft of corns, while they were not on the spot. While Shymapuri stated that he was not on the spot and he has been falsely implicated. Then, Raju Puri has stated that he was at the house, and he heard the cries from towards the field of Vaktu Puri, that thieves are committing theft of corns, then he went there along with the villagers, where there was pelting of stones between the thieves and the family members of Vaktu Puri, and stone thrown by the thieves landed on his head also, and he is innocent. In defence the accused persons examined three witnesses. D.W.1 Bhanwarlal has stated, that in Bhajan Mandali, he, Govind Puri, Chhagan Lal, Kailash Singh, Raju Puri, Chandra Prakash where there along with 15-20 persons. At about 9 in the night they heard cry of thief, thief, then he rushed towards the field of Vaktu Puri, where fight was going on, and there was pelting of stones, in which process one stone landed on Raju Puri, but he does not know either party, and does not know who was pelting stones. Then, D.W. 2 Dhanna deposed, that he irrigates his land by engine as there is no electric connection in the field, and he did not give any electricity supply to anybody from his well, and that there is no light available in the house of Dhulia. D.W.3 Keshar Singh Ranawat is the A.EN. of Electricity Distribution Corporation, who has deposed to be not aware as to whether there is power/electric connection at the house of Dhula. 5 After completing the trial, the learned trial court convicted and sentenced the accused persons as above. In the present case as is clear from the evidence, that the deceased is Dhulia, and as appears from Ex.P-10 the post mortem report, that he had 23 injuries on his person, all being ante mortem in the nature. Then, Puran the informant has seven injuries on his person as appears from Ex.P-12, while Chhagani also has two injuries as appear from Ex.P-13. Suresh P.W.2, being another son of the deceased also has injuries as appear from Ex.P-8. Then, Raju Bai and Kastoori are also injured as appear from Ex.P-6 and Ex.P-7, though Kastoori Bai has not been examined. Arguing the appeal, learned counsel for the appellant submitted, that the prosecution has screened the real version of the incident, and has projected a false version by belatedly lodging the first information report. It was submitted, that as a matter of fact Vaktu son of Udai Puri accused had lodged a First Information Report No. 118 at 12.45 in the night intervening 1st and 2nd September, 2001 against Dhula, Nakshtra, Suresh, Puran etc., which F.I.R. Is Ex.D-8, and on this report investigation was conducted, and challan has been filed against these persons, which is 6 pending trial but around 11 hours thereafter, the present report Ex.P-1 has been lodged, giving a wholly false version. In view of the above, we read the F.I.R. Ex.D-8, and a look at that shows, that it was alleged therein, that at about 11 in the night, Sohan Puri, Suresh Puri, Rameshwar Puri, Raju Puri and Shambhu Puri went on the field to watch the crop, and at about 12.15 in the night he heard cries from towards his field calling for assistance, as theft of corns is being committed, whereupon the informant along with Kailash Puri, Narayan Puri, Bhanwarlal Jat, and Chhagan Lal Jat rushed, and found, that the thieves had inflicted Lathi injury on Raju Puri, who was bleeding, and the persons, who had gone to watch the crop informed, that Dhulia, his son, Nakshtra, Puran, Suresh and Banshi Mogias were the thieves, who had plucked some 200-250 corns for committing theft, which are lying on the spot. At this place we cannot restrain ourselves from observing, that this F.I.R. Ex.D-8 does not at all give any version, as to how the incident, which is subject matter of present trial, commenced, so as to enable us to say that the accused had any different version of the incident, which may be considered to be the real version of the incident. On the other hand, 7 all that this information Ex.D-8 shows is, that the deceased and his sons, and son in law of the deceased had gone on the field of the present accused party for committing theft, and the thieves have inflicted Lathi blow on the head of Raju Puri. It is not the averment, that any beating was given by the thieves, to the other injured, as are shown to have received injuries in the present case, or that the persons from the informant's side caused any injury whatever to the so called thieves, must less is it alleged, that Dhulia received so many serious injuries. In that view of the matter, at this very place itself we look at the site inspection note, being Ex.P-5, to initially ascertain, as to what is the place of occurrence, i.e. whether the occurrence took place in the field of the present accused party, or had occurred at the house of the deceased. The obvious reason is, that if the incident had taken place at the field of the accused party, then of course the version given in Ex.P-1 falls flat, while if the place of incident is house of the deceased, then Ex.D-8 acquires an altogether different complexion. A look at Ex.P-5 shows, that therein at figure-2 is shown as footway of the house of Dhulia, then at figure-3 is shown as the Chowk outside the 8 house of Dhulia where there is a big tree, then by figur-4 cot is shown to be lying where Dhulia was relaxing, then by figure-5 is shown to be Chowk where Smt. Raju and Suresh were relaxing, then by figure-6 is shown to be Dhaliya where Kastoori Bai was relaxing, then by figure-7 is shown to be house where Nakshtra and his wife Benki were relaxing, while figure-8 shows the place where Puran and his wife were relaxing. Then, figure-9 is the place where incident took place, and blood of Dhulia is lying on the ground. This place shown by figure-9 is just adjacent towards the West of the place shown by the figure 4 and 5. According to the site inspection note, in Chowk at a distance of 15 ft. towards the north of Banyan tree the blood is lying, which oozed out of the injuries of Dhulia, and in front of Dhaliya in the Chowk, the roofing tiles (Kevlu) are shown to be broken. Thus it is clear, that the incident, which is subject matter of present trial, took place at the house of the deceased, and as appears from Ex.D-8, that the alleged thieves had plucked 200-250 corns which are lying on the spot, obviously meaning thereby, that the thieves could not take away booty, and obviously the alleged thieves had run away, by the time the informant Vaktu Puri reached the field. In the above background, now we proceed to examine the material evidence led on the side of the 9 prosecution, specially that comprising of the eye witnesses. To start with P.W.1 is Puran the informant. He has deposed the initial story as given in the first information report about various persons sitting in the house, dinner having been cooked, the deceased having been called to take food, and has stated that at that time Raju Puri, Vaktu Puri, Shambhu Puri, Udai Puri, and Shyam Puri came, and called Dhulia to come out, and on his coming out Baktu Puri is said to have told that Dhulia's sons have committed theft, whereupon Dhulia brought pitcher and took oath in the name of Ganges, but Vaktu Puri told him to be telling lie, and inflicted a blow on the head of Dhulia who fell down. Then, Raju Puri inflicted two Kulhari blows. Then, his brothers came out and tried to intervene. In this process Raju Puri inflicted injuries on him. His sister got injured, and so on. Then, he has deposed that he did not lodge any report in the police station but lodged oral report in the hospital, which he has proved as Ex.P-1. Then, he has proved Panchnama Laash, Fard Superdagi Laash. At this place he was declared hostile by the prosecution. In cross examination by the accused he has gone to the extent of deposing, that he did not see any of the accused persons on the spot, and the accused persons were not named in the first report etc. It is obvious that for the reasons not decipherable by us, this witness has suppressed the truth, and is deposing 10 falsehood. Therefore, we need not detain on him. Then, P.W.2 Suresh is another son of the deceased, and is an injured. He has stated, that he and his brother Nakshtra, Puran, Chhagani, and Dhulia were taking food, at that time he was also at the house, there the accused persons Vaktu Puri, Shyam Puri, Sohan Puri, Shambhu Puri, Udai Puri, Raju Puri, Kailash Puri, and other who could not be identified came and asked Dhulia to come out, and on his coming out it was told that his sons have committed theft of corn, which was denied, at that time Vaktu Puri inflicted a Kulhari blow on the head of his father, and two Kulhari blows were inflicted by Raju Puri, Udai Puri and other persons inflicted injuries with Lathi. He along with Nakshtra, Puran and Suresh intervened, and Puran also received injuries on his head. His mother and grand mother also received injuries. On being confronted with his police statement Ex.D-1 he has denied the suggestion, about having gone to lawyer for initiation of proceedings against Vaktu Puri, or Vaktu Puri being falsely implicated. He has also denied the suggestion about other villagers being there in giving beating, and on account of a case having been lodged for committing theft of corns the accused persons have been falsely implicated. 11 Then, Nakshtra P.W.3 is another son of Dhulia. He has also corroborated Suresh in all material particulars, and has narrated same story which we need not repeat. He has deposed, that after the incident he went to his Bhua at Palakheri. He has admitted that they were prosecuted for committing theft of corns, wherein they were granted bail. He has denied the allegation about pelting of stones. He has also denied the suggestion about committing any theft of corn, and accused persons having come to give scolding. Then, P.W. 11 Chhagani has also deposed in line of the evidence given by Suresh, and has stated, that at about 8 in the evening they were taking food at that time her father was called out, and when he went out Vaktu Puri and Raju Puri were inflicting Kulari blow on his head, Udai Puri inflicted injuries on her, the other accused persons Suresh Giri, Shambhu, Kailash Puri, Chhagan Puri, Shyam Puri inflicted injuries with Lathi. Then, in the morning her Bhua's son was called from Palakheri. Then, tractor was brought from Pinodara. Then, his father was taken to hospital, who died. She was cross examined regarding presence of light, about her date of marriage etc., the details of food which was cooked, the distance between Palakheri and her village etc. Then, she was cross examined in the direction of challenging the involvement of Vaktu Puri. Then, she was suggested, that all complainant party while 12 rushing towards Khai,( a ditch) situated between her house and field of Vaktu Puri, and had fallen down in that Khai. Of course, this suggestion was denied. Then, P.W. 12 is Dhapu the wife of Puran. She has also narrated in the line of the evidence given by Chhagani, Suresh etc. Then, P.W. 13 Raju is the wife of the deceased; she has also corroborated the evidence of the other eye witnesses. P.W. 14 Bhagwat Singh is the Investigating Officer. Thus, in our view, this evidence if read in conjunction with Ex.D-8 does show, that according to the accused persons the prosecution party had committed theft of corns in their field, in which process some 200-250 corns were left on the field, and to retaliate in hot pursuit, the accused persons in a body went to the house of Dhulia, and gave indiscriminate beating to all persons. The accused persons appear interse to be close relations, inasmuch as Sohan and Kailash are brothers, Shyam is son of Kailash Puri, then this also appear to be close relative to each other, as according to Ex.D-8 they were sent to watch crop. Thus, it is clearly established that the original incident has arisen as alleged in Ex.P-1, when the accused persons all gone to the house of the victims to retaliate for the theft. Obviously they had 13 gone in a body duly armed with deadly weapons, and inflicted injuries. Of course, there are some infirmities in the above evidence inasmuch as the witnesses have tried to implicate Vaktu Puri also, who was not named in the First Information Report, and had not even been challaned, but then, thereby the entire evidence does not become unreliable. Then, there are some discrepancies regarding sequence of infliction of blows by the different accused persons to different victims. In this regard it may be observed, that in an incident, where more than half a dozen persons are indiscriminately showering blows, and there are multiple number of victims, it would be too much for the Court to expect every witness to give exact picturesque narration of the incident, at the pain of all the evidence being thrown away. The fact remains, that the basic features of the evidence, about commission of the incident by all the seven accused persons, does inspire implicit confidence. In view of the above, in our view, there is no error on the part of the learned trial court in convicting the appellants for the offence under Section 323 read with Section 149 and 148 IPC. 14 It was then submitted by the learned counsel for the appellant, that all said and done, the offence made out on account of death of Dhulia, cannot be said to be falling under Section 302, rather it falls under Section 323 or 325 IPC read with Section 149 IPC. Even after being pointed out number of injuries received by the deceased, as appearing from Ex.P-10, it was submitted by the learned counsel for the appellants, that according to Dr. Kanhaiya Lal Meena, P.W.8, injury no. 1, 3, 22 and 23 were sufficient in the ordinary course of nature to cause death, while injury no. 23 is bruise 7 x 4cm Lt. on the lower 1/3 part of left leg, while injury no. 22 is again bruise measuring 6 x 3 cm on the left forearm, and submitted, that obviously these two injuries were neither sufficient to cause death, nor were even capable of contributing in the death. Then, regarding injuries no. 1 and 3, it was submitted, that injury no. 1 is an incised wound 10x 0.5 cm. on the left parietal, while injury no. 3 is a lacerated wound of 9 x 0.5cm on the left parietal, but then, in the post mortem report it is clear that there was no corresponding internal injury in the head or brain, as all parts of the body have been reported to be healthy, except that both the chambers of the heart were reported to be empty, and semi digested food was found present in the stomach, and bladder was reported to be empty, scalp, skull, 15 vertebrae, membranes, brain and spinal cord have all been reported to be healthy, with the result, that injury no. 1 and 3 can also not be said to be sufficient in the ordinary course of nature to cause death, and therefore, of course unfortunately the deceased has died, but then offence under Section 302 IPC cannot be said to be made out. All these injuries are simple in nature, except a couple of fracture, which at best can make out a case under Section 325 IPC. On the other hand, learned Public Prosecutor, supported the impugned judgment, by contending, that as per Post Mortem report there are as many as 23 injuries on the person of deceased, all being ante mortem in nature, and even apart from injuries no. 1, 3, 22 and 23 injuries no. 10, 11, 13, 14, 17, 18, 19, 20 and 21 are of serious magnitude, and are on vital parts of the body. It was submitted, that this clearly shows that all accused persons had come in a body, with a clear determination to kill Dhulia, on account of their believing that his sons have committed theft, and therefore, indiscriminate beating has been given only with a view to kill him, and nothing less than that. Thus, the conviction under Section 302 does not require any interference. We have considered the submissions, and have 16 examined the post mortem report Ex.P-10, and the statement of Dr. Kanhaiya Lal Meena, P.W.8 who was the medical officer of Community Health Centre, Badi Sadri. At the outset we are constrained to observe, that the conduct of the doctor, in purportedly conducting post mortem examination, is so thoroughly adversely commendable, even to the extent that whatever is said against him would always fall short of everything. He has totally derelicted in discharge of his duties, either because he does not know his job at all, or has happened to obtain the decree, and get appointment, only by virtue of Article 16(4), or 16(4- A) of the Constitution, or for some extraneous considerations has conducted, in such a manner, as to render the working of the judicial system as a mockery, assuming that he is the person who is in a dictating position for the Courts, to decide about life and liberty of the accused persons, or deceased as well. In our view, it is a very serious matter, that such person is continuing in the job, and is playing with the lives of poor unwary victims, so also the accused, and playing such a grave role, which results in the obstruction of proper functioning of the Justice Delivery System as well. 17 We may straight-way reproduce the injuries, as are noticed in Ex.P-10 at page A-171, to have been found on the person of deceased, all being ante mortem, which read as under:- “1. Incised Wound 10 x 0.5cm Lt. Parietal 2. Incised Wound 7 x 0.5cm Lt. Ear 3. Incised Wound 9 x 0.5cm Lt. Parietal 4. An abrasion 1 x 1cm Lt. Hand 5. An abrasion 15 x 1cm Lt. Arm 6. An abrasion 6 x 0.5cm Lt. Arm 7. An abrasion 7 x