Bhanji @APPELLANT@Hash State of Rajasthan & Ors.

Sangeet Lodha,J

This appeal is directed against judgment dated 13.4.09 passed by the Additional Sessions Judge (Fast Track), Dungarpur in Session Case No.34/08,

whereby the accused appellants have been convicted for offences under Section 341 & 302/34 IPC and sentenced as under :

 Section 302/34 I.P.C.

Imprisonment for life and a fine of Rs.2000/- each; in default of payment of fine to further undergo six months simple imprisonment.

Section 341 I.P.C.

Simple imprisonment for one month and a fine of Rs.500/each; in default of payment of fine to further undergo for two days simple imprisonment.

The sentences have been directed to run concurrently.

The prosecution story as unfolded during the trial may be summarized thus: Kaduwa Parmar, resident of village Kolkhanda Fala Punela had five

sons; namely, Shanker, Bhanji, Mohan, Mahipal and Sukhlal. Mahipal, Bhanji and Sukhlal were residing with their father, Shanker alongwith his family

was residing in his own house and Mohan alongwith his family was residing at Ahmedabad. No partition of the existing joint family land was effected

amongst the brothers, however, Shanker was given two agriculture fields to earn his livelihood and other lands were being looked after his remaining

brothers. The brothers of Shanker would always pick up quarrel and ready to beat him, lest he should not be given any land.

On 22.3.08, Smt. Sharda had given oral information to the police that on the occasion of Dhulandi (Holi) Festival, her husband went to the field from

where around 6 O’clock in the evening, he was returning bare foot to home. She was inside her home, at that time, her brother in law in

connection with the land dispute came shouting that “Shankariya, we will not spare you todayâ€. On listening this, she came out from her home

and saw that her brother in law Bhanji and Mahipal were armed with iron pipe and lath (stick) respectively. When her husband reached in front of her

home near Kanti’s agriculture field, at that moment, Mahipal with an intention to cause death of her husband, gave a lath blow which was inflicted

on the back. Bhanji gave blow with the pipe on his head. Shanker fell down on the spot. After falling down, both the brothers pelted stone on her

husband, on raising hue and cry, Devaram s/o Lalu, her brother in law Sukhlal (brother of Shanker) came there, who tried to rescue him but his

brothers did not stop there and dragged him upto their house. Due to blows by lath and stones, blood oozed out and clothes of her husband fell in the

field. On screaming by Devaram and her brother in law Sukhlal, other persons from village also reached there. On seeing them, both the accused fled

away. On her taking care of her husband, he was found dead. She stated that Bhanji and Mahipal had caused death of her husband by causing

internal and external injuries with lath, pipe and stone blows.

On the basis of the parcha bayan (Ex.P/1) of complainant Smt. Sharda @ Laxmi as aforesaid, the police registered an FIR (Ex.P/23) for offence

under Section 302/34 IPC and the investigation commenced.

After inquest proceedings, the body of the deceased Shanker was subjected to autopsy by P.W.9-Dr. Kamal Singh Meena. During the

investigation, necessary memos were prepared. Accused persons were arrested. At the instance of accused Bhanji, iron pipe and at the instance of

Mahipal, lath (stick) was recovered vide recovery memos Ex.P/8 and Ex.P/9 respectively. The blood stained baniyan of the deceased was seized vide

seizure memo (Ex.P/6). The blood smeared soil, control soil, baniyan of the deceased, iron pipe and lath (stick) were sent for examination to the

Forensic Laboratory and Report was obtained.

After completion of investigation, the police filed charge sheet against accused appellants- Bhanji and Mahipal for offences under Section 341,

302/34 IPC before the Judicial Magistrate, Dungarpur, which was committed to the Session Judge, Dungarpur and later transferred for trial to the

Court of Additional Session Judge (Fast Track), Dungarpur.

The trial Judge framed the charges against the accused Bhanji and Mahipal for offences under Section 341 and 302/34 IPC. The accused

appellants pleaded not guilty and claimed trial.

During the trial, the prosecution got examined as many as 11 witnesses (PW 1 to PW 11) and documentary evidence was exhibited as Ex.P/1 to

Ex.P/27. The statements of the appellants were recorded u/s. 313 Cr.P.C., wherein they denied their involvement in the commission of the crime as

alleged and stated that they have been falsely implicated in the case. In defence, the appellants did not lead any evidence, however, the statements of

Smt. Dai recorded by the police under Section 161 Cr.P.C. was exhibited in evidence on their behalf as Ex.D/1.

The learned trial Court after considering the evidence available on record and the submissions made by the parties, convicted and sentenced the

accused appellants as indicated above. Hence, this appeal.

Heard the learned counsels for the appellants and learned Public Prosecutor.

Mr. Vikram Singh, learned counsel appearing for the appellants submitted that the learned trial Judge has failed to appreciate the evidence on

record in correct perspective which has resulted in erroneous findings being arrived at. Drawing the attention of the court to the deposition of P.W.1-

Sharda @ Laxmi, P.W.2-Devram & P.W.3-Smt. Dai, learned counsel submitted that admittedly, they had reached the place of occurrence after the

incident and therefore, they cannot be considered to be eye witnesses. Learned counsel would submit that there exists discrepancies in the statements

of the eye witnesses on material points and thus, their testimony which is not wholly reliable cannot be made basis for conviction of the appellants.

Learned counsel submitted that on the basis of the evidence on record, it is apparent that there was a sudden fight between the deceased and the

appellants wherein the appellants have also suffered injuries. It is submitted that no single injury caused to the deceased is found fatal and most of the

injuries caused are abrasions and therefore, even if the prosecution evidence is taken to be true on face value, the offence alleged to have been

committed by the appellants do not travel beyond the provisions of Section 304 Part II IPC.

On the other hand, learned Public Prosecutor submitted that the guilt of the appellants stands proved on the basis of the deposition of eye

witnesses and other corroborative evidence on record. The findings arrived at by the learned trial Judge cannot be said to be capricious or perverse so

as to warrant interference by this court. Learned Public Prosecutor submitted that the statements of the eye witnesses do not suffer from any

contradictions or discrepancies on material points and their credit has not been impeached in any manner in cross examination and thus, being wholly

reliable witness, their testimony is sufficient to convict the appellants for the offences charged. That apart, the testimony of eye witnesses stand

corroborated by recovery of the lath and pipe at the instance of the appellants and FSL report (Ex.P/17) wherein the lath and pipe recovered at the

instance of the appellants were found having stains of ‘B’ group blood. Learned Public Prosecutor further submitted that apparently there was

motive behind the commission of crime inasmuch as, there was a dispute between the brothers regarding the land. Learned Public Prosecutor

submitted that as many as 20 injuries were caused to the deceased Shanker and therefore, the contention of the appellants that they had no intention to

cause death of Shanker and the offence, if any committed by them, shall fall within the definition of ‘culpable homicide not amounting to

murder’, is also not tenable.

We have considered the rival submissions and scanned the evidence on record thoroughly.

P.W.9-Dr. Kamal Singh Meena conducted autopsy of the dead body of Shanker. As per the post mortem report (Ex.P/19), following ante mortem

injuries were found on the person of the deceased Shanker:

“(1) Lacerated wound 2x2 cm Rt. side scalp.

(2) Lacerated wound 2x3 cm left side scalp.

(3) Lacerated wound 1x1 cm on nose.

(4) Lacerated wound on both gums-upper about 5 cm three tooth broken (2 incisor + 1 canine) left side lower about 1 cm left side canineÂ

tooth is broken.

(5) Multiple abrasion with bruise on neck Rt side about 4x6 cm and two abrasion in left side.

(6) Abrasion and bruise 5x 6 cm Rt. arm outerside.

(7) Abrasion and bruise- 2 x 4 cm left arm outerside.

(8) Abrasion and bruise 2x2 cm left arm above elbow.

(9) Abrasion- 2 x 2 left elbow.

(10)Abrasion with bruise 10x5 cm Rt. side front chest     wall.

(11)M.Small abrasion with bruise about 8x 10 cm Rt. side front chest wall.

(12)Abrasion and Bruise 4x4 cm on rib sternum.

 (13)Abrasion & Bruise 5 x5 cm on costal margin mid point.

(14)Abrasion 3x 3 cm left ilial chest.

(15)Abrasion with Bruise left side back 10 x 20 cm.

(16)Abrasion 5x7 cm Rt. Side (Post.) chest wall.

(17)Abrasion with Bruise 2x2 cm left hip.

(18)Abrasion and Bruises 5x5 cm Rt. knee joint (Ant.)

(19)M. Abrasion 7x7 cm left knee joint.

(20)Abrasion 3x3 cm upper side left foot.â€​

The cause of death is opined to be Haemorrhagic shock due to liver damage. Ribs fracture and multiple injuries and Neurogic shock due to multiple

injuries.

P.W.9-Dr. Kamal Singh Meena in his deposition has categorically confirmed the injuries caused to the deceased Shanker as also the cause of the

death. The injuries are opined to be caused by blunt weapon. He deposed that on opening the chest, rib no.10, 11 & 12 in the right side & rib no. 11 &

12 on the left side were found fractured. Thus, looking at the nature of injuries and the medical evidence on record, the death of Shanker was

concededly homicidal in nature.

The prosecution case was founded on testimony of eye witnesses P.W.1-Sharda @ Laxmi, P.W.2-Devram and P.W.3-Dai and other

corroborative evidence.

In the first instance, we consider it appropriate to examine the testimony of eye witnesses examined by the prosecution.

P.W.1-Sharda @ Laxmi, who is wife of the deceased Shanker, deposed that for last 2-3 years, there was quarrel between the brothers in respect

of the lands. On the fateful day, when Shanker was coming back from the fields, around 6 P.M. when he reached near his home, both the accused

Bhanji, who was armed with iron pipe and Mahipal, who was armed with lath belaboured Shanker. In the first instance, Bhanji gave blow with pipe on

mouth and then Mahipal also inflicted blow on mouth and then on whole body. Her husband to save himself ran towards his uncle house but the

accused persons chased and caught hold of him and threw him down from Otaly and then pelted stones on him continuously. She deposed that she

had seen the incident and her uncle Devram, Sukhram and aunt Dai were the persons who came to his rescue.

The accused dragged the dead body of Shanker and put it near the house of Bhanji.

In cross examination, she declined that her statement was ever recorded by the police. She deposed that on the day of incident, she was in the field

then said, she was at home. She was inside the house and on seeing her husband coming, she came out of the house. She admitted that Mahipal and

Bhanji, the appellants herein, also suffered the injuries. She further deposed that all of a sudden, fighting took place in ger (a traditional dance

performance on the occasion of Holi) and who has suffered what type of injuries, she doesn’t know. The suggestion put by the defence that the

deceased fell down from otaly was accepted by her as correct but then, she said that he was thrown down from the otaly. She categorically deposed

that she had reached the place of occurrence after 15-20 minutes and before she reached, Sukhram and Devram were already present there.

P.W.2-Devram deposed that on the next day of Holi, Bhanji and Mahpal belaboured Shanker near their houses then said, near Shanker’s

house. One was armed with pipe and another with lath. He did not remember as to who was having the lath and who was having the pipe. He further

deposed that he, his brother’s wife Dai and Shanker’s wife had seen the incident of beating. He further deposed that he attempted to rescue

Shanker but the accused persons said he is their brother and they will beat him.

In cross examination, he deposed that he had reached the place of occurrence after 15-20 minutes and before that what incident took place, he

doesn’t know.

P.W.3-Smt. Dai deposed that on the fateful day, Shanker was bringing fodder to his home and when he reached near the home, both Mahipal

and Bhanji started beating him. Bhanji and Mahipal gave beating. Bhanji was having pipe and Mahipal was having lath. Shanker was belaboured. Then

she alongwith Devram, Sukhlal and Sharda tried to rescue. Then Shanker was thrown down from Otaly by Bhanji and Mahipal. She was frightened

and did not see the incident further.

In cross examination, she deposed that she reached the place of occurrence after one hour. 15-20 pipe blows and 15-20 lath blows were inflicted on

deceased. Mahipal and Bhanji also suffered the injuries. She accepted the suggestion of the defence that the quarrel had started at Dhulandi. She

further deposed that she was called by Sharda.

A perusal of the statements of the eye witnesses reveal that they were not present at the place of occurrence when the accused persons started

beating Shanker. It has come on record that as a matter of fact, the incident of beating started at the ger/Dhulandi and continued thereafter. But then,

it cannot be said that the witnesses examined by the prosecution as eye witnesses had not seen the incident at all. There is consistency in their

statements regarding the appellants belabouring Shanker and throwing him down from otaly. Moreover, even according to the appellants in the incident

occurred, they had also suffered the injuries, which further stands fortified from the deposition of P.W.1-Sharda and P.W.3-Dai. In this view of the

matter, despite there being some contradictions in the statements of the eye witnesses, their testimony regarding the appellants herein belabouring

Shanker by lath and pipe cannot be discarded as unreliable. Moreover, at the instance of the appellants Bhanji and Mahipal, pipe and lath were

recovered. The recovery made stand proved by deposition of the motbirs of recovery P.W.6-Manaklal. Further the pipe and lath recovered at the

instance of the appellants Bhanji and Mahipal as per FSL report (Ex.P/17) were found stained with blood of ‘B’ group i.e. the blood group of

the deceased. The injuries caused to the deceased by blunt weapon stands corroborated by the medical evidence i.e. post mortem report (Ex.P/19)

and deposition of P.W.9-Dr. Kamal Singh Meena. Thus, factum of the appellants Bhanji and Mahipal belabouring the Shanker, causing multiple

injuries and his consequential homicidal death stands proved beyond reasonable doubt.

Now the question which deserves consideration of this Court is whether in the facts and circumstances of the case, wherein the incident has

occurred, the injuries caused by the accused appellants on the person of the deceased Shanker leading to his death can be said to be an act of the

accused appellants constituting culpable homicide not amounting to murder and the conviction of appellants by the trial court under Section 302/34 IPC

deserves to be altered under Section 304 Part-I or 304 Part-II/34 IPC.

Indisputably, in the instant case, as per the medical evidence, the deceased suffered 20 injuries, out of which, the injury nos. 5 to 20 are reported to

be abrasions. He has further deposed that injury no.1 to 4 may be caused by stones and injury no. 5 to 20 may be caused on account of rolling down

from hill. That apart, no single injury opined to be caused by blunt weapon, was found fatal. As a matter of fact, the cause of death is opined to be

cumulative effect of multiple ante mortem injuries leading to haemorrhage shock.

In Madhu Sudan Satpati & Anr. vs. State of Orissa, AIR 1994 SC, 474, where there was only one injury on the head of the deceased and that

proved to be fatal, the other injuries were found to be simple and weapons used were also not deadly, the Hon'ble Supreme Court held that it would be

reasonable to hold that the accused persons had only knowledge that injuries inflicted were likely to cause death and accordingly, altered the

conviction from Section 304 part I IPC to punishable u/s 304 part II IPC.

In Nadodi Jayaraman vs. State of Tamilnadu, AIR 1993 SC 777, where 32 injuries were caused to the deceased, most of the injuries were on non

vital parts of the body, on the facts and in the circumstances of the case, the court held that appellant therein do not appear to have had the intention

of causing the death of the deceased or even causing such bodily injuries likely to cause death. They can at the best be attributed with the knowledge

that their act is likely to cause death or causing such bodily injury as was likely to cause death.

In Fateh Singh vs. State of Rajasthan & Anr., 1989(2) Crimes(Raj.) 249, this court relying upon the decision in the matter of Raja Ram vs. State

of Rajasthan, 1969 RLW 449, wherein no injury was inflicted to the deceased on any vital part of his body, the injuries inflicted were on hand, feet, leg

etc. this court held that act was done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such

bodily injury as is likely to cause death.

Thus, in the instant case, looking at the nature and number of injuries caused it can be safely concluded that the accused had knowledge that the

injuries caused are likely to cause death but they had no intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, in view of the discussion above, it is not possible to hold the appellants Bhanji and Mahipal guilty of committing an offence under Section 302

IPC.

For the aforementioned reasons, we partly allow the appeal. The conviction of the appellants Bhanji and Mahipal and sentence awarded by the

trial Judge for offence under Section 341 IPC is maintained. The conviction of the appellants Bhanji and Mahipal for offence under Section 302/34

IPC is set aside and instead we convict them for offence under Section 304 Part-II/34 IPC and sentence them to suffer imprisonment for ten years

with fine Rs.5,000/- each; in default of payment to further undergo imprisonment for a period of three months. We are informed that the appellants are

behind the bars since 23.3.08. If the appellants have already served the sentence awarded, they shall be released forthwith. However, each of the

appellants shall furnish a personal bond in sum of Rs.25,000/- with surety in like amount to the satisfaction of the trial court in terms of provisions of

Section 437 A Cr.P.C.