Balwant Ram and Others vs State of Rajasthan

V.G. Palshikar, J.—This appeal is directed against the judgment and order of conviction passed by the Addl. Distt. and Sessions Judge, Raisinghnagar on 21st July, 1986 convicting the accused appellants Balwant Ram, Deewan, Kashmir and Dhanna Ram u/s 302 read with Section 34 and Section 323 read with Section 34 of the IPC, and sentencing them of offence u/s 302 read with Section 34 of the IPC. The accused were sentenced to imprisonment for life for the offence u/s 302 read with Section 34 of the IPC and a fine of Rs. 1000/- each in default one year R.I. For the offence u/s 323 read with Section 32, IPC each accused was convicted for R.I. for a period of 1 year and both the sentences were ordered to run concurrently. It is this order of conviction which is challenged in the present appeal.

The prosecution story briefly stated is that in the night of 3rd March, 1985 at about 9-30 p.m., the accused persons assaulted the deceased Dalipa Ram, his son deceased Ram Kumar and his wife deceased Phooli. The FIR of this occurrence was lodged by P.W. 1 Mani Ram on the next day. After investigation the accused were arrested. After completion of investigation, they were challaned and prosecuted u/s 302 read with Section 34 and 323 read with Section 34 of the IPC. The accused persons denied the guilt and claimed to be tried. The prosecution recorded evidence and on appreciation of the evidence on record, the learned Addl. Sessions Judge came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt u/s 302 read with Section 34 of the IPC and, therefore, recorded the conviction as stated above.

Learned counsel appearing on behalf of the accused claimed that in view of admitted rivalry between the accused and the deceased and in view of the fact that the deceased were the assailants, the learned Judge erred in convicting them of murder. He submitted, relying on the judgment of the Supreme Court reported in Balaka Singh and Others Vs. The State of Punjab, that in the present ease, there is no inquest report and the FIR is lodged alter due deliberations belatedly, the incident occurred in the night of 3rd March. 1985 and the FIR was lodged on the 4th March. 1985. However, this judgment of the Supreme Court is of no help to the accused as in the present case the explanation given for delay is plausible and. therefore, acceptable. The decision reported in is to the same effect as the Supreme Court referred to above for the reasons stated above, this also does not help the accused.

P.W. 1 Mani Ram who lodged this FIR has stated in his deposition before the court that after having heard the commotion, the witness went out of his house and saw the accused persons assaulting the deceased persons, when the witness asked the assailants the cause of assault, he was told to get out from the scene or else he also would be assaulted thereafter, due to fear, he remained in his own hut and did not come out till morning, when in the morning, he went to Anoopgarh to tell his father of the occurrence and on the instructions of his father, he went to lodge the FIR. This witness has deposed that on the 3rd March. 1985 when he was lying on his bed after having his evening meal, he heard commotion from the house of accused Dhanna Ram. he therefore, came out of his hut and went towards the hut of Dhanna Ram where he found that accused Dhanna Ram holding an axe and his 3 sons having sticks were assaulting Dalipa Ram. Ram Kumar and Phooli. He has stated that when he left the scene. Devi Lal and Meethu sons of deceased Dalipa Ram also arrived there. He has then stated that when he returned, both Devi Lal and Meethu were at the hut of Dhanna Ram. The cross-examination of this witness does not reveal any material omission or contradiction. There is no reason whatever to disbelieve this witness. Suggestions regarding property dispute between the accused and the deceased have been made to the witness and he has accepted the position.

P.W. 2 Kisna Ram is a punch witness, he witnessed the seizure of Lathi from the place of the accused. P.W. 3. Karam Singh is the Dy. S.P. and the investigating officer. He has deposed to the manner in which he completed the investigation.

P.W. 4 is the daughter of deceased Dalipa Ram and eye-witness. She has given a graphic description of the entire incident. She states that in the night of 3rd March. 1985 at about 9 p.m. she was in her hut along with her father Dalipa Ram. mother Phooli. sister-in-law, brother Meethu and brothers Ram Kumar and Devi Lal. at that lime, a bull had entered their field and. therefore, her brothers Devi Lal and Ram Kumar went into the field to drive out the bull, when they were so doing. Ram Kumar was assaulted by Balwant Kashmir. Deewan and Dhanna Ram. This fact was. therefore, reported by Devilal to his parents, he said that Ram Kumar has been beaten by the accused and taken to their hut. On that, the father of the witness (deceased Dalipa Ram) went to the rescue of Ram Kumar, he was followed by the mother Phooli and then brother Devilal and witness Rajo also followed. When the witness and her brother reached the hut of accused, she saw her mother, father and brother lying on the ground and being hit by the accused, when her brother Meethu went to the rescue of his parents, the accused also assaulted him and he fell in the crops standing in the field, he was lifted by the witness and brother Devi Lal and taken to home. Her sister-in-law Bhawani went to the village and called one Pyara and Govind. these people also sought to rescue the parents of the witness but they were also driven out. This witness was also subjected to the cross-examination and there is nothing in the cross-examination to destroy the testimony of thoss witness.

P.W. 5 Meethu Ram is the other eye-witness who himself was injured in the incident that took place in the night of 3rd March. 1985, This witness also has staled that in the night at about 9 p.m.. his brothers Ram Kumar and Devi Lal went into the field to drive the bull that had entered the field. He then stales that Devi Lal returned and told the family that Ram Kumar was beaten up by the accused and taken to their hut. Then, the parents of the witness went to the scene of occurrence and the witness and his sister Rajo then followed. The witness has corroborated his sister P.W. 4 Rajo on all material particulars. Some discrepancies in evidence of both these two witnesses do exist but they are minor and go to prove that the witnesses are speaking the truth. This witness has deposed to being beaten up by the accused.

The third eye-witness is Devi Lal. he also fully corroborates his brother Meethu Ram and sister Rajo on all material particulars. His cross-examination also does not reveal any such contradiction or omission which will require that the witness be disblieved. It will thus be seen that from the evidence of 3 eye-witnesses who are only witnesses to the occurrence, who are children of the deceased couple and who have no reason to falsely implicate others and let the real culprits go unpunished. The animosity between the family of the accused and the family of the deceased is undisputed. The statements of these witnesses have been corroborated by the independent witnesses P.W. 1 and P.W. 7 Govind Ram. This witness states that daughter-in-law of Dalipa Ram came to him crying and told him that her parents-in-law and brother-in-law are being beaten by the accused. At this stage, it is worthwhile to note that Rajo P.W. 4 has stated in her deposition that her sister-in-law (Bhawani) went to the town and called Govind i.e. the present P.W. 7 and she has deposed that he was also asked to run away by the accused persons. P.W. 7 in his deposition has also categorically stated that the accused persons said that they have killed the deceased and if the witness wants to save himself, he should run away. This, in our opinion is such important corroboration of the witness that the entire deposition of the eye-witness make an indistrictable link of irrefutable ocular evidence of the gruesome killing of three members of one family.

P.W. 8 is the doctor who conducted the postmortem on the dead body and opined that it was caused by the injuries inflicted on the persons. Believing this witness and in our opinion very rightly, the learned Addl. Sessions Judge came to the conclusion of guilt and sentenced the accused as afore- said.

The learned counsel appearing on behalf of the accused assailed this order of conviction. He pointed out to us in detail various contradictions which according to him destroy the fabric of truth in the deposition of the witnesses who were highly interested being member of the family of the deceased intent upon securing the conviction of the accused due to family enmity.

The learned counsel then urged that according to the accused persons, they never had any intention to kill any of the deceased. The deceased had come to attack, the accused retaliated in self defence, may be they have exceeded their right of self defence, it cannot be in the circumstances be called intentionally killing and therefore, the conviction is unsustainable in law. Then it was con- tended that the injuries have not been caused by the sharp-edged weapon of the accused but by the blunt end of it which shows that the accused did not have the intention to kill. Then referring to the evidence on record and the spot map, it was contended that the entire theory of bull having entered the field is baseless, if it was so, there was no reason for the accused to attack the deceased. There is no mention of any foot-prints of the bull. There is no evidence of bull having entered the field. The deceased family had decided to assault the accused and therefore, gone with that intention to the house of accused and it was in the self defence of their person that the accused retaliated. The learned counsel led great emphasis of the subsequent facts that within days of the incident the agricultural land belonging to the accused was taken in possession by the persons of the deceased family. It was the contention of the learned counsel that it was always the motive of the family of the deceased to re-take the possession of the lands sold by them to the accused and it was because of this action on the part of the deceased family that the fight took place resulting in death of the 3 members of the family of deceased Dalipa Ram.

The learned counsel then relied on a decision of this Court reported in 1982 Cri LJ 659 and contended that the injuries on the deceased persons took place at the spur of the moment in retaliation and therefore, the accused cannot be held guilty u/s 302 read with Section 34, IPC but can be convicted u/s 325 read with Section 34, IPC. In our opinion, the evidence in present case does not warrant conclusion that the incident took place at the spur of the moment. This judgment is of no avail. The learned counsel then referred to a judgment of the Supreme Court reported in (JT 1992 2 229 to contend that in the present case, the actual possession of land was with the accused and they had legitimate right to avoid aggression by the deceased party. This ruling is also of no consequence as in the present case, the assault was so brutal as cannot be said to have occurred on the spur of moment. Even if, the claim of the accused that the deceased party was about to assault the accused is accepted, there is no reason whatever for the accused to kill the woman, the amount of injury caused to each shows the brutality of attack and takes away any possibility of the injuries being caused in self defence.

The learned public prosecutor stressed before us that the oral evidence is duly supported by the medical evidence. The independent witnesses P.W. 1 and P.W. 7 corroborate on material particulars. The other eye-witnesses belonging to the family of the deceased. The fact that one of the witnesses has received injury establishes his presence at the place of occurrence. He relied on a decision of the Supreme Court reported in Brijpal Singh and others Vs. State of U.P. and others, and claimed that there are no material discrepancies in the evidence of the eye-witnesses. they have ample corroboration in medical evidence and their evidence cannot be rejected merely because of interestedness. He also relied on another judgment of the Supreme Court for the same proposition, it is reported in Arjun and others Vs. State of Rajasthan,

With the close scrutiny of the evidence, we find all these contentions unacceptable. We have gone through the Ex. P2 and P2-A which describe the spot of occurrence. It has been duly recorded in the "Panchnama" that there were marks of the crops being damaged in the field which is intrinsic evidence to show that the theory of bull having entered the field of deceased family was correct and the . accused family took advantage of the night and of the fact that the deceased Ram Kumar has come near their hut and have mercilessly assaulted the entire family. The depositions of the eye-witnesses including 2 independent eye-witnesses fully corroborate each other and prove beyond reasonable doubt that the accused persons intentionally assaulted the family of the deceased. There is no error in the findings recorded by the learned Judge that the accused were guilty of offence punishable u/s 302 read with Section 34 of the IPC.

We are supported in the view we are taking by decision of the Supreme Court reported in State of Madhya Pradesh Vs. Pyare Raja and others, where the Supreme Court has observed that from the nature of injuries, it cannot be said that the conviction u/s 302 read with Section 34, IPC is unjustified. The Supreme Court while coming to this conclusion observed thus (Para 12):

"We are also not impressed by the submissions of Mr. Gambhir that in the facts and circumstances of the case conviction u/s 302 read with Section 34. IPC was unjustified. The deceased died on the spot and had suffered multiple injuries numbering thirteen. His tibia was cut and both the ulnas and radius were broken. Even when he was lying helplessly on the ground, assaults continued. The wife of the deceased, when in attempt to save his life, fell on his body, she was pushed back and further assaults were made. It is often very difficult to precisely gauge the motive of a man. Some times, heat and passion generate on the spot impelling a man to act in a very brutal manner. From the nature of the injuries and in the manner in which such injuries were caused with vengeance we do not think that conviction of the accused u/s 302 read with Section 34, IPC is at all unjustified."

There is, thus, no substance in this appeal and the same is, therefore, dismissed.