Bhagwan Singh vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—Bhagwan Singh alongwith his brothers Bhanwar Lal, Gulab Chand, Rajendra, Meghraj, Bahadur Singh and Bablu s/o. Banshilal, Mukut Bihari, Ramesh Chand, Chhotulal and Raju @ Rajmal all sons of Raghunath were tried by the Court of Additional Sessions Judge (Fast Track) Chhabda for committing murder of Laxmi Narain on 14.11.2005 at 12.00 noon in Village Malmoja Sarsodiya near the field of Madan Singh, father of the present appellant Bhagwan Singh. In the occurrence, Lakhan Lal (P.W. 1), Heera Lal (P.W. 12), Om Prakash (P.W. 16), Shivdutt (P.W. 20) and Jodhraj (P.W. 26) had suffered injuries.

The Court of Additional Sessions Judge (Fast Track), Chhabda vide impugned judgment dated 6.2.2008 held the present appellant Bhagwan Singh guilty of offence under Section 302 IPC for causing one incised injury on the head of Laxmi Narain with Gandasa. Co-accused of the appellant, namely Mukut Bihari, Chhotu Lal and Ramesh Chand were convicted for offence under Section 323 IPC, whereas co-accused Bahadur Singh was convicted for offence under Section 325 IPC. Out of eleven accused tried, remaining accused Raju @ Rajmal, Meghraj, Gulab Chand, Bablu, Bhanwar Lal and Rajendra were acquitted of offences under Sections 148, 302/149, 323/149, 325/149 IPC. Having convicted the appellant for offence under Section 302 IPC, the trial court vide a separate order of even date sentenced the appellant to undergo life imprisonment and pay a fine of Rs. 5000/- in default thereof, to undergo one year rigorous imprisonment.

Mukut Bihari, Chhotu Lal and Ramesh Chand convicted for offence under Section 323 IPC and Bahadur Singh who was convicted for offence under Section 325 IPC were ordered to be released on probation.

The State of Rajasthan has opted not to file appeal against acquittal of Raju @ Rajmal, Meghraj, Gulab Chand, Bablu, Bhanwar Lal and Rajendra, whereas Mukut Bihari, Chhotu Lal and Ramesh Chand who were convicted for offence under Section 323 IPC and Bahadur Singh who was convicted for offence under Section 325 IPC, and were granted benefit of probation, have not preferred any appeal. Thus, only appellant Bhagwan Singh who has been convicted for offence under Section 302 IPC has filed the instant appeal to assail his conviction and sentence.

We may notice here that from the side of the accused also, Bahadur Singh, who was convicted for offence under Section 325 IPC, Meghraj, Gulab Chand, Rajendra Kumar, Bhanwar Lal, Ramesh Chand, Bablu and Mukut Bihari had also suffered injuries.

Criminal proceedings were set into motion on the basis of written report (Ex. P. 1) submitted by Lakhan Lal (P.W. 1) before the SHO, Police Station Mojpur, District Baran.

Lakhan lal (P.W. 1) in written report (Ex. P. 1) stated that on 14.11.2005 at about 12.00 noon he alongwith his father Heeralal, Deshraj, Laxmi Narain, Om Prakash, Jodhraj had gone in the fields to keep the generator over the tubewell. At that time, before their arrival, Bhagwan Singh, Bhanwar Lal, Bahadur, Mukut, Raju, Ramesh, Om Prakash, Ramswaroop Meena and 8-10 persons were present there armed with lathis and Gandasi. After restraining the complainant party not to keep the generator in the field, accused Bhagwan Singh gave a Gandasi blow on the head of Laxmi Narain. Mukut gave a blow with lathi on the left shoulder of the complainant. Bhanwar Lal caused injury with a lathi on the head of Heera Lal. Bhanwarlal caused Gandasi injury to Jodhraj. Ramesh caused an injury with Gandasi to Laxmi Narain and Chhotu Lal caused injury on the hand of Om Prakash. Thereafter everybody armed with lathis and Gandasi caused injuries to the complainant party and thereafter had decamped from the spot after giving beating and causing injuries.

From a perusal of the above written report (Ex. P. 1), following facts are discernible:-

(a). The complainant party had gone to the fields to keep the generator over the tubewell.

(b). The accused wee already present in their field.

In the FIR, injuries suffered by the accused have not been specified or explained and the fir is totally silent qua the injuries caused to eight persons on the side of the accused.

Prosecution in all had examined 36 witnesses and has proved on record documents, Ex. P. 1 to Ex. P. 60. Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. They examined in defence six witnesses and have also proved on record documents Ex. D. 1 to D. 26. On the side of accused, eight persons had received injuries. Their x-ray reports have been brought on record as Ex. D. 12 to D. 18 and injury reports as Ex. D. 19 to D. 26.

First, We shall notice medical evidence.

Dr. Brijesh Kumar Goyal (P.W. 19) on 14.11.2005 at 5.15 PM had conducted autopsy on the dead body of Laxmi Narain and as per post-mortem report (Ex. P. 26) he found, following injuries on the person of deceased:-

"1. Incised wound 4" x 1/2", up to bone deed right side scalp at parietal region, transverse.

Bruise 3" x 2", right side forehead.

Bruise 3" x 2", left scapular region.

Bruise 2" x 2", right scapular arm.

Bruise 2" x 2", back infra scapular region. All injuries ante-mortem in nature".

A perusal of the post-mortem report (Ex. P. 26) reveal that injuries No. 1 and 2 were on the head. As per prosecution, injury No. 2 is attributed to Ramesh Chand and injury No. 1 which is an incised wound and proved fatal, has been attributed to the present appellant Bhagwan Singh.

Dr. Yogendra Yadav (P.W. 33) on 15.11.2005 had examined Lakhan Lal (P.W. 1) and as per injury report (Ex. P. 33) had found following injuries on the person of Lakhan Lal (P.W. 1):-

"1. Abrasion 2 x 1 c.m. on left cheek.

Contusion 3 x 2 c.m. on right shoulder.

Abrasion 3 x 2 c.m. on left leg."

Dr. Satish Gupta (P.W. 34) on 14.11.2005 had examined Jodhraj and as per injury report (Ex. P. 34) had found following injuries on his person:-

"1. Lacerated with contusion 7 x 4 x 1/2 c.m. on right parietal.

Tenderness with swelling 6 x 4 c.m. on left forearm."

Dr. Satish Gupta (P.W. 34) on the same day also examined Om Prakash and as per injury report (Ex. P. 35) had found following injuries on his person:-

"1. Abrasion with contusion, whole right forearm elbow to wrist.

Tenderness 3 x 2 c.m. on right cervical region.

Tenderness 3 x 2 c.m. on right sacro region."

Dr. Satish Gupta (P.W. 34) also examined Deshraj on the same day and as per injury report (Ex. P. 36) had found following injuries on his person:-

"1. Abrasion 6 x 4 c.m. on left elbow.

Lacerated with Contusion 8 x 4 x 1/2 c.m. on left parietal."

Dr. Satish Gupta (P.W. 34) on the same day also examined Heera Lal and had found following injuries on his person as per injury report (Ex. P. 37):--

"1. Lacerated with contusion 3 x 2 x 1/2 cm, right thumb.

Abrasion with contusion 6 x 4 c.m. on mid parietal region.

Contusion with swelling on elbow to mid forearm, right forearm.

Abrasion with contusion 4 x 3 c.m. on left shoulder.

Abrasion with contusion 4 x 3 c.m. on left mid clevicle.

Tenderness 4 x 3 c.m. on left arm below shoulder

Tenderness 3 x 3 c.m. on right arm above elbow."

We may notice here that injuries on the person of Jodhraj, Om Prakash, Deshraj and Heera Lal were declared as simple, whereas injury No. 1 on the person of Lakhan Lal (P.W. 1) was declared grievous being fracture of left thumb.

Dr. Brijesh Kumar Goyal who had appeared as P.W. 19 to prove the injuries suffered by the decease was also examined by the defence as D.W. 6. This witness also proved injuries suffered by the accused.

Bahadur Singh accused had suffered seven injuries. As per injury report (Ex. D. 19), he suffered following injuries:-

"1. Punctured wound with swelling, 1/4" x 1/2" x 1/2" with 2" x 2" swelling on right shoulder.

Lacerated wound 1/2" x 1/4" x 1/4" on right side cheek above upper lip.

Abrasion with tenderness 1/2" x 1" on left forearm.

Bruise 2" x 1" on left forearm.

Tenderness 1" x 1" on right collar.

Tenderness 2" x 1" on right leg.

Complaint of pain 2" x 2", scalp."

As per opinion of the Radiologist (Ex. D. 18), injury No. 1 which was a punctured wound on shoulder was declared grievous.

We may notice here that as per injury report (Ex. D. 20), accused Meghraj had suffered four injuries and injury No. 2 was grievous being fracture of mandible and scapula.

Gulab Singh has also suffered injuries and vide injury report (Ex. D. 21), all the injuries on the person of Gulab Singh were declared simple.

Dr. Goyal (P.W. 19) vide Exhibit-D. 22 had examined Bhanwarlal and Ramesh Chand, Bablu and Mukut Bihari vide injury reports, Exhibits-D. 23 to D. 26 respectively.

Thus, out of eleven accused tried, eight accused, namely Bahadur Singh, Meghraj, Gulab Singh, Rajendra, Bhanwar Lal, Ramesh Chand, Bablu and Mukut Bihari had suffered injuries in the occurrence and some of the accused had suffered grievous injuries.

Lakhan Lal appearing as P.W. 1 in court stated that they had purchased 1/2 share of the land of Gordhan Mali measuring 5 Bigha, 5 Biswa. The sale deed was registered in the name of his wife. 4-5 months ago, he, Heera Lal, Om Prakash, Deshraj, Jodhraj and Laxmi Narain had gone to affix a generator on the tubewell for irrigating the land. 2-3 days before accused had already irrigated the fields, in the field, Bhagwan Singh, Ramesh, Bahadur Singh, Gulab Singh, Mukut, Ramesh, Raju, Chhotu Lal and Bablu were present. Uncle Laxmi Narain asked the accused to see reason, then Bhagwan Singh gave a Gandasi blow on his head, when the witnesses made an attempt to lift Laxmi Narain, then everybody caused injuries. Bahadur Singh caused injury to Heera Lai. Bahadur Singh caused injuries on head and hand due to which, thumb of Heera Lal was cut. Deshraj caused injury to Bablu. Jodhraj also caused injury on head. Mukut also caused injury with lathi on the head and shoulder of the witness. Then intervention was caused and accused ran away from the spot, "

In cross-examination, Lakhan Lal (P.W. 1) stated that his village is at a distance of 2 km. from the field. Around the land in question there is land of Madan Lal Mali (father of accused-appellant) and Hari Soni. They had purchased 1/2 share of the land of Gordhan and remaining 1/2 share of the land was purchased by Bhagwan Singh accused. He further admitted that of his share of the land, Bhagwan Singh was in possession. He further denied that tubewell was in the share of land of Bhagwan Singh, in cross-examination, he further admitted that the complainant party was armed with lathis and Gandasi. He further stated that after the field of Madan Lal, the field belongs to them and thereafter is the field of Bhagwan Singh. He further admitted that when they reached to their field, accused were already present in their field, . The witness denied the fact that the complainant party had gone armed to attack the accused.

Brij Mohan (P.W. 11) another eye-witness stated that 5-6 months ago he was going to purchase fertilizer, when he was on the road, Laxmi Narain complained that Bhagwan Singh, Ramesh are not allowing him to keep the engine on the tubewell. The witness stated that Bhagwan Singh had caused Kulhadi blow to Laxmi Narain. Again stated that Ramesh and Bhagwan Singh caused Gandasi blow to Laxmi Narain and thereafter, both the parties came in front of each-other, .

Heera Lal (P.W. 12) also stated that Bhagwan Singh caused a Gandasi blow to Laxmi Narain. Thereafter, both the parties had a fight, .

Other eye-witnesses have also narrated the occurrence in similar manner, it is their case that the complainant party had gone in the field alongwith engine to operate the tubewell to irrigate their field. The same was objected to by Bhagwan Singh who was in his field and thereafter he caused blow with Gandasi on the head of Laxmi Narain and then both the parties had fought.

The learned trial court taking the evidence of the witnesses had returned the following finding:-

The above said finding given by the learned trial court that after the injury was caused by the present appellant both the sides fought has not been assailed by the State of Rajasthan, or the complainant party.

However, Shri N.A. Naqvi, learned Senior counsel assisted by Mr. Rahil Kalam has vehemently urged that eight of the accused had suffered injuries including grievous injuries and the same have not been explained in the fir and in the court also the complainant party has not stated as to who caused injury to accused. Thus, it is contended that the complainant party has suppressed the origin and genesis of the occurrence. Non-explanation of injuries on the person of accused in the fir is fatal to the prosecution.

Shri Naqvi has relied upon the case of Lakshmi Singh and Others Vs. State of Bihar, AIR 1976 SC 2263 : (1976) CriLJ 1736 : (1976) 4 SCC 394 : (1976) SCC(Cri) 671 , in which the Hon''ble Supreme Court has held as under:-

"This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:

In State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 :) one of us (Untwalia, J., speaking for the Court, observed as follows:

In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.

It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

It is true that in the fir complainant party has not explained the injuries on the person of accused. But the witnesses are consistent in court that the first blow was caused by accused Bhagwan Singh on the head of Laxmi Narain in the occurrence, only one blow has been attributed to Bhagwan Singh appellant on the head of Laxmi Narain which proved fatal.

The question before us is as to who started the fight, it is admitted case of the prosecution that 1/2 share of the field in question is owned by Bhagwan Singh and another 1/2 share of the field belong to the complainant party in cross-examination Lakhan Lal (P.W. 1) has admitted that Bhagwan Singh was in possession of the field falling to his share. Jodhraj (P.W. 26) has admitted that Lakhan Lal (P.W. 1) had collected everybody and both the sides had suffered injuries. Thus, it is apparent that it was the complainant party who had gone to the field taking the generator to assert their possession over the tubewell and when they intended to install the generator to operate the tubewell, on objection raised by Bhagwan Singh appellant, the occurrence had ensued. Since the complainant party has not explained the injuries on the person of accused, their version that the first blow was given by Bhagwan Singh appellant cannot be accepted as a whole truth and same has to be taken into consideration with a pinch of salt, it cannot be believed that they had gone unarmed rather Jodhraj (P.W. 26) has disclosed that persons were gathered by Lakhan Lal to make determined bid to assert his right over the tubewell. Thus, complainant party is not coming to court with clean hands. To this an extent that Bhagwan Singh caused first blow, it seem deposition of the witnesses in court suffer from blemish, we cannot determine with a certainty as to which party was aggressor, it can be safely said that at the spot due to assertion made by the complainant party to install the generator over the tubewell a sudden mutual conflict had developed at the spot.

It was held by the Hon''ble Apex Court in the case of Jumman and Others Vs. The State of Punjab, AIR 1957 SC 469 : (1957) CriLJ 586 as under:-

"(24). In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under S. 300, I.P.C., Exception 4.

(25). The matter has to be viewed in this way. It is clear that there was no pre-meditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had arms, there was no undue advantage taken by either. Hence Exception 4 to S. 300, I.P.C., applies with the result that the offence is under S. 304 (Part I), I.P.C."

A Division Bench of this Court in Buddhi and Others Vs. State of Rajasthan, (2006) 3 RLW 1950 : (2006) 3 WLC 217 , relying upon Dharman Vs. State of Punjab, AIR 1957 SC 324 : (1957) CriLJ 420 held as under:-

"13. Coming to the incident that occurred with deceased Saltu we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as eight accused persons received lacerated and incised wounds on the vital parts. In Dharman Vs. State of Punjab, AIR 1957 SC 324 : (1957) CriLJ 420 the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of Section 304 and not under Section 302 of the Indian Penal Code."

Thus, in the present case, a sudden fight had taken place. Admittedly, the appellant in the entire occurrence had caused only one injury on the head of deceased Laxmi Narain. Taking into account that without any pre-mediation occurrence had suddenly erupted and the parties fought with each-other, we are of the view that offence qua the appellant will not fall under Section 302 IPC, but under Section 304 Part-I IPC.

Consequently, we convert the conviction of the appellant Bhagwan Singh from offence under Section 302 IPC to Section 304 Part-I IPC. We also modify and reduce the sentence of life imprisonment awarded upon the appellant under Section 302 IPC to ten years rigorous imprisonment under Section 304 Part-I IPC. We also increase the amount of fine imposed by the trial court from Rs. 5000/- to Rs. 10,000/- and order that in default of payment of fine, the appellant shall undergo one year additional rigorous imprisonment.

With the above modification in conviction and sentence, the present appeal stands disposed of.