Bapulal and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—The present appeal has been filed on behalf of thirteen convicted accused appellants.

On 14.12.2006 at about 7.00 P.M. in Village Naya Gaon (Gordhan Niwas), murder of Kalyan was committed and in the said occurrence, Balu @ Bal Chand (P.W.11), Ramesh Chand (P.W.10) and Bharat (P.W.16) had received injuries. Kalyan deceased had four firearm injuries on his person. Injury No. 1 was on chest, injury No. 2 was on right side of neck, injury No. 3 was on right shoulder and injury No. 4 was on right side of face. A question has been raised whether all the four injuries are result of one shot or of two shots. Said firearm injuries in the FIR have been attributed to Ratanlal @ Ram Ratan, Akhlesh and Prakash Chand accused. Balu Ram @ Bal Chand (P.W.11) had suffered three simple blunt injuries, Ramesh Chand (P.W.10) has not been medico legally examined, thus on record there is no injury on his person, whereas Bharat (P.W.16) had suffered one minor abrasion 1" x 1/2" on right scapular region. For the four blunt simple injuries, thereon the person of Balu @ Bal Chand (P.W.11) and one on the person of Bharat (P.W.16), complainant party had named ten persons, namely Bapu Lal, Badri Lal, Kamlesh, Rajesh, Brajraj, Devi Lal, Ramesh, Raju @ Rajesh, Shyamlal and Rakesh as accused. All thirteen accused belong to one family. Accused Bapu Lal and Shyamlal are brothers being sons of Kishore. Prakash Chand and Ratan Lal @ Ram Ratan are sons of Bapu Lal. Alongwith them, three sons of Prakash Chand, namely Akhlesh, Kamlesh and Rajesh have also been named as accused. Shyamlal alongwith his two sons Brajraj and Rakesh have been named as accused. Complainant party has also named Badri Lal and Devi Lal two brothers alongwith their sons, Ramesh S/o. Badri Lal and Raju @ Rajesh S/o. Devi Lal. Due to large scale involvement of the accused, it has also become necessary for us to examine that no accused is victim of over implication as injuries found in the occurrence are not commensurate to large scale implication of the accused.

The Court of Additional Sessions Judge, Jhalawar vide impugned judgment dated 6.8.2010 held accused Ratan Lal @ Ram Ratan, Akhlesh and Prakash Chand guilty of offence under Section 302 IPC and co-accused Bapu Lal, Kamlesh, Ramesh Chand, Brajraj, Rajesh S/o. Prakash Chand, Devi Lal, Badri Lal, Raju @ Rajesh S/o. Devi Lal, Shyamlal and Rakesh guilty of offence under Section 302 read with Section 149 IPC. All the accused were also convicted for offence under Sections 148 and 323/149 IPC. Ratan Lal @ Ram Ratan was also held guilty of offence under Section 3/25, Arms Act and accused Ramesh Chand and Brajraj were also held guilty of offence under Section 4/25, Arms Act. Having convicted the appellants for aforesaid offences, the trial court has sentenced them as under:-

"Accused, Ratan Lal @ Ram Ratan, Akhlesh and Prakash Chand:

"U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo four months simple imprisonment."

Accused, Bapu Lal, Kamlesh, Ramesh Chand, Brajraj, Rajesh S/o. Prakash Chand, Devi Lal, Badri Lal, Raju @ Rajesh S/o. Devi Lal, Shyamlal and Rakesh:

"U/s. 302/149 IPC: Life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo four months simple imprisonment."

Accused, Ratan Lal @ Ram Ratan, Akhlesh, Prakash Chand, Bapu Lal, Kamlesh, Ramesh Chand, Brajraj, Rajesh S/o. Prakash Chand, Devi Lal, Badri Lal, Raju @ Rajesh S/o. Devi Lal, Shyamlal and Rakesh:

"U/s. 148 IPC: One year rigorous imprisonment, to pay a fine of Rs. 200/- and in default thereof to undergo one month simple imprisonment."

Accused, Ratan Lal @ Ram Ratan, Akhlesh, Prakash Chand, Bapu Lal, Kamlesh, Ramesh Chand, Brajraj, Rajesh S/o. Prakash Chand, Devi Lal, Badri Lal, Raju @ Rajesh S/o. Devi Lal, Shyamlal and Rakesh:

"U/s. 323/149 IPC: six months rigorous imprisonment."

Accused, Ratan Lal @ Ram Ratan:

"U/s. 3/25, Arms Act: Two years rigorous imprisonment, to pay a fine of Rs. 1000/-and in default thereof to undergo two months simple imprisonment."

Accused, Ramesh Chand and Brajraj:

"U/s. 4/25, Arms Act: One year rigorous imprisonment, to pay a fine of Rs. 1000/-and in default thereof to undergo two months simple imprisonment."

All the sentences were ordered to run concurrently.

Aggrieved against their conviction and sentence, all the accused-appellants have instituted the instant appeal.

Criminal proceedings were set into motion on the basis of written report (Ex. P.38) presented by Ghanshyam (P.W.14) before S.I. Bhagwat Dayal Tripathi (P.W.17). On the basis of written report (Ex. P.38), a formal FIR (Ex. P.39) bearing FIR No. 364/06 was registered at Police Station Jhalarapatan, District Jhalawar. The written report (Ex. P.38) when translated into English reads as under:-

"To,

The SHO, P.S. Jhalarapatan, District Jhalawar, dated 14.12.2006.

Sub.: Registration of report.

Sir,

It is submitted that one year ago over pipeline a quarrel had taken place between Bal Chand and Prakash Chand. In the said quarrel sons of Bal Chand were caused injuries. Keeping that grudge in mind, today on 14.12.2006 at about 7.00 PM in Village Gordhan Niwas (Naya Gaon) when Ramesh was returning from his fields to the house, in front of the house, an altercation had ensued between him and Rajesh S/o. Prakash Meena. At that time hearing noises coming from outside, Kalyan Meena brother of Ramesh came out of the house. Then Ratan Lal S/o. Bapu Lal who was already standing there had fired at Kalyan from his double barrel gun. At that time, Akhlesh S/o. Prakash Chand and Prakash Chand S/o. Bapu Lal also fired from their country made pistols at Kalyan due to which Kalyan fell at the spot. After hearing noise of gunshot, Bal Chand also came running outside, then Kamlesh S/o. Prakash Chand fired from a country made pistol. The said shot hit on the hand of Bal Chand. Rajesh S/o. Prakash Chand, Rakesh and Brajraj (Biraj) S/o. Shyamlal caused injuries to Ramesh with lathi and Gandasi. Thereafter, Bapu Lal and Shyamlal S/o. Kishore, Badri Lal and Devi Lal S/o. Bhairulal, Ramesh and Raju S/o. Badri Lal all caused injuries with sword and lathis to Kalyan, Ramesh and Bal Chand who were lying on the ground. They (accused) were armed with sword, Gandasi and lathi and caused many injuries. The accused had also thrown stones from the roof of their house and also given threat to liquidate the entire family. The occurrence was witnessed by Bharat S/o. Hemraj, Rajesh S/o. Kalu Lal, Naina Lal S/o. Kanwar Lal, Ghanshyam S/o. Bhanwar Lal. Kalyan had died at the spot. Report is presented. Legal action be taken.

Sd/- Ghanshyam S/o. Bhanwarlal, Caste Meena, r/o. Naya Gaon (Gordhan Niwas), Tehsil Jhalrapatan, Dist. Jhalwar."

A perusal of the FIR reveal that an altercation had ensued between Ramesh Chand (P.W.10) and Rajesh S/o. Prakash Meena. Hearing the altercation, Kalyan came out of the house, then Ratan Lal had fired at Kalyan with his double barrel gun. Thereafter, Akhlesh and Prakash Chand from the country made pistols in their hands, had fired at Kalyan. Thus, four firearm injuries on the person of Kalyan has been attributed to three accused, namely Ratan Lal @ Ram Ratan, Akhlesh and Prakash Chand. We may mention here that Kalyan had suffered in all five injuries and injury No. 5 was abrasion. After injuries were caused to Kalyan, accused had caused injuries to Bal Chand and Ramesh Chand. There is no injury on the person of Ramesh. Three simple blunt injuries on the person of Bal Chand are attributed to ten persons.

Now, we will reproduce the medical evidence.

Dr. Gauri Shankar Chauhan (P.W.9) on 15.12.2006 at 9.00 AM had conducted autopsy on the person of Kalyan and in the post-mortem report (Ex. P.37) had found following five injuries on his person:-

On internal examination, doctor had found multiple gunshot wounds present and fracture of left 5th rib and right 6th rib. It was further found that both pleural cavity were full of blood and from right and left lung, two pellets each were removed and sealed and from pericardium one pellet was removed. Due to gunshot, heart had suffered punctured lacerated wound. In the opinion of the doctor, cause of death was syncope and hemorrhagic shock as a result of gunshot injury to both sides of lungs and heart.

Dr. Gauri Shankar Chauhan (P.W.9) on 14.12.2006 at 11.05 PM had medico legally examined Balu Ram @ Bal Chand (P.W.11) and as per injury report (Ex. P.35) had found following three simple blunt injuries on the person of Balu Ram @ Bal Chand (P.W.11):-

"1. Lacerated wound 1"x1/4"x1/4" on left parietal part of head.

Lacerated wound 1/2"x1/8"x skin deep on med aspect of right wrist.

Lacerated wound 1/4"x1/8"x skin deep on middle 1/3rd of right forearm."

On the same day at 11.00 PM, Dr. Gauri Shankar Chauhan (P.W.9) had also examined Bharat (P.W.16) and as per injury report (Ex. P.36) had found following injury on his person:-

"Abrasion, 1" x 1/2" on right scapular region."

Prosecution in the present case in all had examined 19 witnesses and had also proved on record documents, Ex. P.1 to Ex. P.68.

Constable Prahlad Kumar Meena (P.W.1) had carried fifteen sealed packets to the Forensic Science Laboratory.

Constable Rajendra Kumar Sharma (P.W.2) being a police photographer had taken photographs of the spot.

Parmanand (P.W.3), Mukesh (P.W.4), Ram Kishan (P.W.5) and Madan Lal (P.W.8) had attested inquest proceedings (Ex. P.6).

Radheyshyam (P.W.6), Kaila Prasad (P.W.7), Madan Lal (P.W.8) and Prabhu Lal (P.W.13) have also witnessed recoveries from the spot and recovery of weapon from the accused.

Shahzad Mohammad (P.W.18) was in-charge of the Malkhana. He was examined alongwith Prahlad Kumar Meena (P.W.1) to prove the link evidence.

Bhagwat Dayal Tripathi (P.W.17) has proved receipt of written report (Ex. P.38) and registration of FIR (Ex. P.39).

Hemant Gautam (P.W.19) being investigating officer has proved various facets of investigation.

Besides above witnesses, prosecution in the present case has examined Ramesh Chand (P.W.10) who though as per the FIR (Ex. P.39) has received injuries in the occurrence, was not medico-legally examined and there is no medical report regarding sufferance of injuries by him.

Alongwith Ramesh Chand (P.W.10), Balu @ Bal Chand (P.W.11) injured and Bharat (P.W.16) injured have stepped into the witness box to narrate the occurrence. Prosecution also examined Naina Lal (P.W.12), Ghanshyam (P.W.14) first informant, Rajesh (P.W.15) as eye-witnesses of the occurrence.

All eye-witnesses in the court have divulged the same sequence of the occurrence as it was narrated in the FIR. It was stated that on 14.12.2006 Ramesh Chand (P.W.10) was returning from his fields. When he reached in front of his house, Rajesh S/o. Prakash Chand was already standing there. Both had entered into verbal altercation. Hearing their noise, Kalyan came out of the house. Ratan Lal who was already standing there armed with a double barrel gun, fired a shot at Kalyan. Thereafter Akhlesh and Prakash Chand had also caused injuries with country made pistols which had hit shoulder and chest of Kalyan. Kalyan fell on the spot. His father Bal Chand came out, then Kamlesh S/o. Prakash Chand had fired a shot at him. The said gunshot hit at the hand of Bal Chand. Then Bapu Lal and Shyamlal caused injuries to Bal Chand, whereas Rajesh and Rakesh caused injuries to Ramesh Chand (P.W.10). After that Bapu Lal, Shyamlal, Badri Lal, Devi Lal, Ramesh, Raju caused injuries to Kalyan, Ramesh and Bal Chand with sword and lathis.

As we have stated earlier that Ratan Lal @ Ram Ratan, Akhlesh and Prakash Chand, as per eyewitnesses count, had caused fire-arm injuries to Kalyan. After injuries were caused to Kalyan, Balu @ Bal Chand (P.W.11) who came at the spot was caused three simple blunt injuries. Ramesh Chand (P.W.10) was not medico-legally examined and Bharat (P.W.16) has only one abrasion. Thus, four gunshot injuries on the person of deceased stand attributed to three accused, namely Ratan Lal @ Ram Ratan, Akhlesh and Prakash Chand, whereas in the second part of occurrence when Balu @ Bal Chand (P.W.11) came, ten persons had caused three simple injuries to him and one simple abrasion to Bharat (P.W.16).

Shri Biri Singh Sinsinwar, learned senior counsel, assisted by Shri Rajesh Choudhary, has referred to the post-mortem report wherein injuries on the person of deceased Kalyan have been mentioned. Learned senior counsel has drawn our attention to the report of the State Forensic Science Laboratory (Ex. P.66) to contend as per result of the analysis, two spherical iron balls and three stone pieces from packet ''1'' normally not used in any type of regular cartridge (ammunition) have been found. However, as per opinion of FSL these could have been fired from muzzle loading firearm.

Shri Biri Singh has submitted that thus, the injuries found on the person of deceased Kalyan are result of two shots and they had been fired from double barrel gun of Ratan Lal. Shri Biri Singh has further submitted that it is only Ratan Lal who had caused injuries to the deceased and Akhlesh and Prakash Chand are victim of false implication. To fortify this contention, Shri Biri Singh has drawn our attention to Exhibit-D.13, injury report of accused Ratan Lal @ Ram Ratan.

A perusal of injuries on the person of accused Ratan Lal @ Ram Ratan reveal that he had suffered four injuries. Injury No. 1 was incised wound, elliptical shape with pus formation clear cut sharp margin on antero-medial aspect of lower 1/3rd part of right forearm, obliquely placed. Injury No. 2 was bruise with swelling, whereas injury No. 3 was abrasion and injury No. 4 was also bruise. However, a close examination of injury report (Ex. D.13) reveal that Ratan Lal @ Ram Ratan was medico-legally examined on 21.12.2006, i.e. seven days after the occurrence. Occurrence in the present case had taken place on 14.12.2006. Even though a cross complaint was filed, but we cannot become oblivious of the fact that the cross complaint was filed after one month and ten days of the occurrence. Considering the belated medico-legal examination of Ratan Lal @ Ram Ratan accused and delay in lodging of the cross complaint, we are of the view that it is highly doubtful that Ratan Lal @ Ram Ratan had suffered injuries in the same occurrence.

All the witnesses have stated in categorical terms that after Ratan Lal @ Ram Ratan had fired shot, Akhlesh and Prakash Chand had fired shots from their country made pistols at Kalyan deceased and fire-arm injury on the chest has proved fatal. Thus, it is evident that after an altercation had taken place, hearing noise deceased Kalyan came out of the house and then immediately Ratan Lal @ Ram Ratan, Prakash Chand and Akhlesh in quick succession had fired shots at him. Thus, they all formulated common intention and are responsible for causing death of Kalyan. After the first part of the occurrence had completed, then Bal Chand, father of deceased Kalyan, came out and he was caused three simple blunt injuries by the accused. Thus, remaining ten accused have not shared any common object with three other accused who had caused gunshot injuries and had fired at deceased kalyan. This inference is apparent from the number and nature of injuries on the person of Balu @ Bal Chand (P.W.11). Though the witnesses in court have stated that Kamlesh had fired a shot from country made pistol at Balu @ Bal Chand (P.W.11), but in medical evidence, no injury of firearm was found on the person of Balu @ Bal Chand (P.W.11). Thus, so far second part regarding injuries to Balu @ Bal Chand (P.W.11) is concerned, we are of the view that each accused is responsible for their individual liability for causing simple blunt injuries to Balu @ Bal Chand, had they entertained common intention with other co-accused much harm would have been caused to Balu @ Bal Chand.

As a result of above discussion, we uphold the conviction and sentence of Ratan Lal @ Ram Ratan, Akhlesh and Prakash Chand for offence under Section 302 IPC. However, we acquit Bapulal, Badri Lal, Kamlesh, Rajesh S/o. Prakash Chand, Brajraj, Devi Lal, Ramesh, Raju @ Rajesh S/o. Devi Lal, Shyamlal and Rakesh for offence under Section 302/149 IPC and Section 148 IPC. However, we maintain their conviction and sentence for offence under Section 323/149 IPC. We also uphold the conviction and sentence awarded by the trial court upon Ratan Lal @ Ram Ratan for offence under Section 3/25, Arms Act.

The trial Judge has convicted Ramesh Chand and Brajraj for offence under Section 4/25 of the Arms Act. Ramesh Chand in pursuance of disclosure statement (Ex. P.56) got recovered one sword from his residential house vide memo (Ex. P.19), whereas Brajraj vide memo (Ex. P.21) got recovered one Gandasi. Exhibits-P.19 and P.21 are attested by Kaila Prasad (P.W.7) and Prabhu Lal (P.W.13). In the occurrence, injuries have been caused by simple blunt weapon. Neither the sword, nor Gandasi recovered have been used. Kaila Prasad (P.W.7) in court admitted that he belong to the brotherhood of Balu @ Bal Chand (P.W.11), whereas Prabhu Lal (P.W.13) has admitted that Balu @ Bal Chand (P.W.11) is his Samadhi. In court he has stated that it to be true that he is not in speaking terms with the accused. Exact words of the witness are,

Hemant Gautam (P.W.19), Investigating Officer, in court admitted to be correct that on the sword recovered (Article-02), no slip was pasted and same was not signed by any witness. He further admitted that on Gandasi (Article-03) also, no slip has been attached and same has not been attested by any witness. It has been further admitted by the investigating officer that number of persons of family of the accused were also staying in the said house from which sword and Gandasi have been recovered. Thus, it has been rightly urged that the conscious possession of the accused cannot be inferred specially when disclosure statement (Ex. P.56) made by Ramesh Chand is not attested by any witness.

In Rameshwar and Dinesh @ Pillu v. State of Rajasthan, [D.B. Criminal Appeal No. 158/2010, decided on 10.11.2014], a Division Bench of this court in which one of us (Kanwaljit Singh Ahluwalia, J.) was a member relying upon Harjit Singh and Others Vs. State of Punjab, AIR 2002 SC 3040 : (2002) 3 Crimes 158 : (2002) 6 JT 123 : (2002) 5 SCALE 644 : (2002) 6 SCC 739 : (2002) 1 SCR 581 Supp : (2002) AIRSCW 3393 : (2002) 5 Supreme 378 has held as under:-

"Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex. P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh and Others Vs. State of Punjab, AIR 2002 SC 3040 : (2002) 3 Crimes 158 : (2002) 6 JT 123 : (2002) 5 SCALE 644 : (2002) 6 SCC 739 : (2002) 1 SCR 581 Supp : (2002) AIRSCW 3393 : (2002) 5 Supreme 378 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses."

Thus, taking totality of the circumstances, we are of the view that it is not safe to uphold conviction of the appellant Ramesh Chand and Brajraj for offence under Section 4/25, Arms Act. Consequently, they are acquitted of offence under Section 4/25 of the Arms Act.

Hence, the present appeal is disposed of in above terms.