Deen Dayal and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—1. Jodhraj S/o. Bherulal along with two sons namely Deen Dayal and Sanwari @ Sanwariya and daughter Parvati, were sent for trial in case arising out of FIR No. 121/2008 registered at Police Station Sangod. The said FIR (Exhibit-P/16) was recorded on the basis of written report (Exhibit-P/2) submitted by Ramprasad (P.W.4). In the occurrence, Ramdayal, brother of Ramprasad (P.W.4) received four injuries and died as a result of head injury. Ramprasad (P.W.4) had also received four injuries. Their another brother Kalulal (P.W.17) had also received injuries. Their companion Rajendra (P.W.6) had received two injuries. Injury No. 1 was on the left parieto occipital region and injury No. 2 was complain of pain. In the occurrence, Jodhraj, Deen Dayal, Sanwari @ Sanwariya and Parvati all four accused had also received injuries. One of the injury suffered by Sanwari @ Sanwariya was declared grievous in nature. It is a case of version and cross version. The accused have also proved on record cross FIR as Exhibit-D/5.

During the course of trial, Jodhraj died natural death. The Additional Sessions Judge (Fast Track) No. 1, Kota vide impugned judgment dated 7.8.2010 convicted Deen Dayal and Sanwari @ Sanwariya for the offences under Sections 302, 447 and 323 IPC, whereas their co-accused Parvati was only convicted for the offence under Section 447 IPC.

Having convicted the appellants for the abovesaid offences, the trial court vide a separate order of even date, sentenced them as under:--

"U/s. 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo additional two months S.I. each.

U/s. 447 IPC- to undergo two months S.I. each.

U/s. 323 IPC- to undergo three months S.I. and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo additional fifteen days S.I. each."

Parvati Bai appellant No. 4, daughter of Jodhraj, who was only convicted for the offence under Section 447 IPC, was released on probation by the learned trial court.

The present appeal is directed against the judgment of conviction and order of sentence passed by the trial court and it is prayed that the appellants be acquitted of all the charges.

It has come in the evidence that field of Jodhraj and deceased Ramdayal are situated close by. It has also come in the evidence that over a trivial issue, the occurrence had taken place and before the occurrence the relations between the parties were cordial. As per prosecution case, two bulls of the family of the accused had entered into Soyabean field of Ramprasad and had damaged the crop. Whereas, accused party had given a counter version and has stated that buffalo of Ramprasad entered into their field. Be that as it may, it is a common stance of the parties that over grazing of cattle, the occurrence had taken place. Both the sides have caused injuries to each other. It is also admitted fact that both the parties have taken a stand before the court that they received injuries in the occurrence from the hands of other side, but both the complainant and the accused have not explained the injuries on the person of each other.

The criminal proceedings in the present case were set into motion on the basis of written report (Exhibit-P/2). Shrawan Lal (P.W.13) in the court stated that on 17.8.2008, he was posted as ASI at Police Station Sangod. Ramprasad (P.W.4) had presented a written report (Exhibit-P/2) before him at Community Health Centre, Sangod. In his written report, Ramprasad (P.W.4) stated that on 17.8.2008, between 12:00-1:00 PM, he along with his brothers, namely Ramdayal and Kalulal were grazing their cattle in their fields. Close to their field is the field of Jodhraj Dhakad. Two Bulls of Jodhraj entered into Soyabean field of Ramprasad (P.W.4). Upon which, Ramdayal had lodged a protest saying that your bulls have damaged our Soyabean crop and he should be taken out of the field. At that time, Jodhraj, Deen Dayal and Sanwari @ Sanwariya all were armed with Dhariya and Khutiya (wooden stick) came with an intention to kill. Immediately on arrival, Deen Dayal gave Khutiya injury on the head of Ramdayal. Thereafter, he gave another injury on the head of Ramdayal. The second blow given by Deen Dayal had hit Ramdayal on head. Sanwariya also caused injury with an iron rod on the nose of Ramdayal. Sanwariya gave another blow from iron rod on the left side of head of Kalulal (P.W.17). The complainant Ramprasad (P.W.4) came forward. At that time, Jodhraj Dhakad gave an injury with Khutiya (wooden stick) on the hand of Ramprasad. Another injury was caused on the head of Ramprasad. Sanwariya gave another injury with an iron rod on the left hand of Ramprasad. Deen Dayal also caused injury with Khutiya on the right hand and elbow of Ramprasad. Sanwariya also caused another injury with iron rod on the back side of the shoulder. Meanwhile, Rajendra (P.W.6) who was working in the nearby field came running to rescue the complainant party. At that time, Deen Dayal gave a blow from gandasi in the hand and head of Rajendra. Sanwariya also caused injury on the back of Rajendra. The complainant party raised cries. At that time, Dhanpal (P.W.1) and Nandsingh (P.W.5) came running into the field. They saved the complainant party. The accused after causing injuries ran away from the spot. Nandsingh and Dhanpal brought injured for treatment to the hospital at Sangod. The complainant stated that all the accused with an intention to cause death had caused injuries with Khutiya, gandasi and Sariya.

Dr. Shankar Lal (P.W.12) on 17.8.2008 had examined Ramdayal S/o. Chhitar Lal and in injury report (Exhibit-P/12) had noted the following injuries:

"(i) Swelling forehead

(ii) Lacerated wound 10 cm x 1.5 cm, muscle deep on fronto parietal region, reddish clot.

(iii) Swelling nose

(iv) Abrasion 1 cm x linear on left thumb anteriorly."

On the same day, Dr. Shankar Lal (P.W.12) examined Ramprasad (P.W.4) and in injury report (Exhibit-P/13) had noted the following injuries:

"(i) Lacerated wound, 4 cm x 1 cm, muscle deep on left occipital parietal region, reddish clot.

(ii) Swelling left upper arm

(iii) Swelling right elbow

(iv) C/o pain both shoulders, no injury detected"

Dr. Shankar Lal (P.W.12) had also examined Rajendra (P.W.6) and in injury report (Exhibit-P/14) had noted the following two injuries:

"(i) Lacerated wound 5 cm x 1 cm on left parieto occipital region, reddish clot.

(ii) C/o pain back, no injury detected."

Dr. Shankar Lal on the said date had also examined Kalulal (P.W.17) and had noted following one injury on his person in injury report (Exhibit-P/15):

"(i) Lacerated wound 5 cm x 1 cm, muscle deep, on left fronto parietal region."

A perusal of the injury report of Ramdayal, who died later, will reveal that he had suffered two injuries on the head. Injury No. 1 was swelling and injury No. 2 was lacerated wound. Injury No. 3 was swelling on the nose and injury No. 4 was abrasion on the left thumb. Ramprasad (P.W.4) had suffered four injuries. Injury No. 1 was on the head, injuries No. 2 and 3 were on the arm and injury No. 4 was on the shoulder. Rajendra (P.W.6) had suffered one lacerated wound on the head.

Dr. Shankar Lal (P.W.12) admitted that on the same day, he had also examined the accused namely, Sanwari @ Sanwariya, Deen Dayal, Jodhraj and Parvati. This witness proved on record the injury report of Sanwari @ Sanwariya as Exhibit-D/1, Exhibit-D/2 as injury report of Deen Dayal, Exhibit-D/3 as the injury report of Jodhraj and Exhibit-D/4 as injury report of Parvati.

A perusal of injury report (Exhibit-D/1) reveal that Sanwari @ Sanwariya had suffered injuries No. 1 and 3 on right and left forearm. Injury No. 2 was abrasion. After X-ray examination, injury No. 3 was declared as grievous, being fracture of lower end of Ulna. Deen Dayal had suffered two injuries. Injury No. 1 was on the parietal region and injury No. 2 was present on the back. Both the injuries were declared as simple. Jodhraj had suffered two injuries. Injury No. 1 was on the head on the parietal region and injury No. 2 was on the forearm. Parvati had also suffered two simple injuries being abrasion on the forearm.

Thus, Jodhraj and Deen Dayal had suffered injuries on the vital part of their body i.e. head and Sanwariya had suffered a grievous injury being fracture of Ulna bone.

Ramdayal at 3:15 AM in the night of 21st and 22nd of August, 2008 died in the hospital. His autopsy was conducted on 22.8.2008 at 12:30 PM by Dr. Deepak Sharma (P.W.7). In the Post Mortem Report (Exhibit-P/4), doctor had noted following five injuries on the person of Ramdayal:

"(i) Lacerated wound - (4 cm x 1/2 cm mid fronto parietal region.

(ii) Lacerated wound (5 x 1/2 cm, mid parietal occipital.

(iii) Incised wound 9 cm x 1/2 cm, right, 2 No. ,

(iv) Lacerated wound (2 cm x 1 cm, right parieto occipital region.

(v) Contusion (3 cm x 2 cm) on right shoulder."

As per opinion of the doctor, a haematoma was present below skull and on the left side of frontal and temporal region. A sub-dural haematoma was also found. There was a swelling of brain and the head injury had proved fatal.

Ramprasad (P.W.4) and Kalulal (P.W.17) are brothers. In the court they have reiterated same version which had surfaced in the written report (Exhibit-P/2). Dhanpal (P.W.1) and Nand Singh (P.W.5) are independent witnesses. Rajendra (P.W.6) who was injured in the occurrence had also supported the version given by the complainant.

For us, the version given by Dhanpal (P.W.1), who is an independent witness, assume importance. In the court, this witness had stated that Ramprasad belongs to his caste. He is not aware as to who caused injury to Deen Dayal, Jodhraj, Sanwari @ Sanwariya and Parvati. This witness further stated in the court that before the occurrence, relations between the parties were cordial and on the day of occurrence, due to grazing of cattle, the occurrence had taken place. It will be pertinent to reproduce the following lines from the cross-examination of Dhanpal (P.W.1):

Ramprasad (P.W.4) in the court denied that they caused injury to Deen Dayal or Jodhraj. This witness in the court stated as under:--

The Investigating Officer, ASI Ramprasad (P.W.14) admitted that a cross version was also registered. This witness stated as under:--

ASI, Ramprasad (P.W.14) Investigating Officer further admitted that the complainant party had first caused the injuries to the accused. The name of father of deceased Ramdayal, Ramprasad (P.W.4) and Kalulal (P.W.17) is Chhitar Lal. This witness further admitted that no crop was sown in the field of Chhitar Lal. It will be apposite here to reproduce the following lines from the statement of Ramprasad (P.W.14):

Relying upon the evidence of Dhanpal (P.W.1), Ramprasad (P.W.4) and ASI Ramprasad (P.W.14) investigating officer, Mr. Sunil Tyagi, the learned counsel appearing for the appellants submitted that the story projected by the complainant party that bull of the accused had entered into their field, is belied from the admission made by the Investigating Officer, Ramprasad (P.W.14) in his cross-examination. It is further contended that the Investigating Officer has stated that no crop was sown in the field of father of the complainant. Hence, the story that bull of the accused had entered into the field and had damaged the soyabean crop is utterly false. The learned counsel further contended that the complainant party has not explained the injuries on the person of the accused and thus, they have suppressed the origin and genesis of the occurrence.

The learned counsel for the appellants has relied upon the case of Lakshmi Singh and Others v. State of Bihar, reported in , (1976) 4 Supreme Court Cases 394, in which the 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 present 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."

Having heard the learned counsel for the parties, we are of the view that in the present case, due to grazing of cattle, suddenly the occurrence had ensued without any pre-meditation. Both the sides had suffered injuries in the occurrence. From a perusal of the injury report of Ramdayal, deceased (Exhibit-P/12), it is apparent that the injury No. 1 is swelling on the forehead and injury No. 2 is lacerated wound on the head. In the written report (Exhibit-P/2), injury on the head of the deceased Ramdayal is attributed to Deen Dayal. So far as Sanwari @ Sanwariya is concerned, he has only caused simple injury on the nose of the deceased Ramdayal. Thus, Sanwari @ Sanwariya had not caused any injury on the head of the deceased Ramdayal as per written report (Exhibit-P/2). Therefore, the fatal injury on the person of the deceased Ramdayal is only attributed to Deen Dayal. We have already stated that the occurrence was a sudden affair in which both the sides have received injuries. To us, the present case fall under Exception 4 of Section 300 IPC. Exception 4 of Section 300 IPC reads as under:

"Exception 4 -- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

It was held by the Hon''ble Supreme Court in the case of Jumman & Ors. v. State of Punjab [, AIR 1957 SC 469] 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 & Ors. v. State of Rajasthan [, 2007 (1) RCC 228], relying upon Dharman v. State of Punjab [, AIR 1957 SC 324] 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 v. State of Punjab, , AIR 1957 SC 324 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."

Since it was a sudden fight, the occurrence had erupted all of a sudden due to grazing of cattle and accused party has not taken undue advantage. We are of the firm view that each accused will be responsible for individual role. Sanwari @ Sanwariya had caused only simple injury on the nose of the deceased. He has also caused simple injuries to other accused. Thus, Sanwari @ Sanwariya is only liable to be convicted for the offence under Section 323 IPC.

So far as the appellant Deen Dayal is concerned, he has caused one injury on the head of the deceased Ramdayal. Therefore, he will be liable to be convicted under Section 304 Part-I IPC.

In view of above, we convert the conviction of the appellant Deen Dayal from Section 302 IPC to Section 304 Part-I IPC. Resultantly, we set aside the life imprisonment awarded upon the appellant Deen Dayal under Sections 302 IPC and sentence him to ten years R.I. and further order him to pay a fine of Rs. 10,000/-, in default thereof, he is ordered to undergo one year R.I.

However, the appellant Sanwari @ Sanwariya is held guilty of offence under Section 323 IPC only. We upheld the sentence of Sanwari @ Sanwariya awarded for the offence under Section 323 and 447 IPC by acquitting him of offence under Section 302 IPC. We set aside the sentence of life imprisonment awarded upon the appellant Sanwari @ Sanwariya by the trial court.

We also upheld the conviction of the appellants Deen Dayal and Parvati for the offence under Section 447 IPC.

The sentence awarded upon the appellant Deen Dayal for the offences under Sections 304-I, and 447 IPC shall run concurrently. Similarly, the sentence awarded upon Sanwari @ Sanwariya for the offences under Section 323 and 447 IPC shall run concurrently.

No interference is warranted in the case of appellant Parvati, who has already been released on probation.

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