Harchand and Others vs State of Rajasthan

R.S. Chauhan, J.

The appellants, Harchand, Sardar, Ramnarayan and Laxman are aggrieved by the judgment dated 30.4.2005 passed by Addl. Sessions Judge (Fast Track) No. 3, Ajmer, Camp Kishangarh, whereby the learned Judge has convicted and sentenced them as under:-

"Harchand

Under Section 302 IPC - Life imprisonment, a fine of Rs. 2000/-, and further two months of simple imprisonment, in default thereof.

Sardar, Ramnarayan and Laxman

Section 302 read with Section 34 IPC - Life imprisonment, a fine of Rs. 2000/- each, and a further sentence of two months of simple imprisonment, in default thereof."

The appellants have been further directed to deposit a compensation of Rs. 25,000/- each within a period of one month.

Briefly the facts of the case are that on 18.10.2003, Hariram (P.W.2) submitted a written report before the S.H.O., Police Station Bandar Sindri, District Ajmer, which when translated into English, reads as under:-

"To

The S.H.O., Police Station Bandar Sindri.

Sir,

This is to submit that I am Hari son of Ratna, by caste Jat, resident of Ganeshpura. Today, on 18.10.2003 around 6:00 PM I was at my house. At that time Nanda son of Krishna, by caste Jat, came running to my house and told me that the people belonging to the Ghaslo community have assaulted Sheoji outside the village. They have assaulted him with kulhari, farsi and a gun. Upon this information I, Chhitar, Hardeen, Subkaran, Jeevan, Sheonarayan and practically most of the members of my family ran to the spot. When we reached there we discovered that Sheoji was lying in a pool of blood on the Bevikhera road. Shrilal and Kalyan told us that they were letting their sheeps graze at that place, when Laxman, Gopal, Harchand, Sardar, Madan, Ramnarayan, Vishram, Ramesh, Rama, Kishan, Naurat, Ramdhan, Bhuraram, Suresh came with kulhari (axe), wooden sticks and a gun. These persons belong to the Ghaslo community. The moment they reached there, they attacked Sheoji with kulhari, farsi and gun due to which he fell down. All this information was given to us by Kalyan and Sarlal. Sheoji was lying in a bloodied condition at the spot. I have come here to report for initiating the legal proceedings."

On the basis of this report (Ex. P.2), a formal FIR (Ex. P.3), namely FIR No. 119/2013, was chalked out for the offences under Sections 147, 148, 149, 341, 323, 305 IPC. With the death of Sheoji on 19.10.2003, the offence under Section 302 was added. The police after a thorough investigation submitted a charge-sheet against Harchand, Sardar, Madan, Ramnarayan, Gopal, Laxman, Ramkishan, Naurat, Ramdhan, Vishram, Bhanwar @ Bhura for offences under Sections 147, 148, 341, 323, 302/149 IPC before the court. The case was committed to the Addl. Sessions Judge, Kishangarh. From the said court, the case was transferred to the court of Addl. Sessions Judge (Fast Track) No. 3, Ajmer, Camp Kishangarh. The learned Judge framed the charges against Harchand, Sardar, Madan, Ramnarayan, Gopal, Laxman, Ramkishan, Naorat, Ramdhan, Vishram, and Bhanwar @ Bhura for offences under Sections 148, 341, 323 and 302/149 IPC. Thus, eleven persons were put on trial.

In order to support its case the prosecution examined twenty-six witnesses and submitted sixty-three documents. Although, the defence did not examine any witness, but it did submit nine documents. After completion of the trial, by the impugned judgment, the learned Judge acquitted Madan, Gopal, Ramkishan, Naurat, Vishram, Ramdhan, Bhanwar @ Bhura for offences under Sections 148, 323, 341, 302/149 IPC, but the learned Judge convicted and sentenced the appellants as aforementioned. Hence, this appeal before this court.

Before this court takes note of the contentions of the learned counsel for the parties, before this court discusses the evidence produced by the prosecution, it would be appropriate to consider the evidence produced by the prosecution.

Kalyan (P.W.4), Nanda (P.W.9), Sarlal (P.W.16) and Hajari (P.W.18) are the four star witnesses of the prosecution, as they are the eye-witnesses of the actual incident. Hariram (P.W.2), the complainant, Sheoji (P.W.6), Madan (P.W.7), Jeevan (P.W.10), Hardeen (P.W.11), Chhitar (P.W.12),, Shanker (P.W.17) and Sheonarayan (P.W.22) are those persons who rushed from the village along with Hariram, and reached the spot immediately after Sheoji was assaulted. Dr. K.K. Tanwani (P.W.1), as a member of the Medical Board, conducted the postmortem of Sheoji. Few witnesses, such as Kanaram (P.W.19), Sheokaran (P.W.20) and Teju (P.W.25) have turned hostile, and have not supported the case of the prosecution.

Kalyan (P.W.4) in his examination-in-chief informs the court that "the incident happened about seven months back. I was grazing my sheeps in the fields. Hariram, Sardar, Ramnarayan, Laxman, Naurat, Ramdhan, Ramkishan, Suresh, Gopal, Bhura, Vishram, Ramesh are all present today in the court. Then the witness said that Ramesh and Suresh are not present. We were all grazing our sheep in the land belonging to the temple. Shanker and Sarlal were also with me. Hajari was also grazing his sheep. The accused told us that some of our sheep have entered their fields. Then the accused started cursing Sheoji. Sheoji was also grazing his sheep. Then Harchand and Sardar, armed with kulhari, came running. Harchand, Sardar, Naurat, Laxman said that since Sheoji is the main obstacle he should be killed. Ramdhan, Gopal, Naurat, Ramkishan, Ramesh, Suresh, Bhavra and Vishram also said that since Sheoji is the main obstacle he should be cut up and thrown away. Harchand struck Sheoji on the head with a kulhari; Sardar struck Sheoji on his neck with a kulhari; Ramnarayan assaulted Sheoji''s feet with a kulhari; Laxman hit Sheoji on his hand with a farsi; Madan hit Sheoji with a lathi; Ramdhan also hit Sheoji with a lathi; Naurat also hit Sheoji with a lathi; Gopal, too, struck Sheoji with his lathi; Ramkishan also struck Sheoji with his Lathi; Suresh struck him with his lathi; Ramesh also struck him with a lathi; Bhavra and Vishram also struck Sheoji with their lathies. I have seen the incident while standing close by. My brother, Nanda was farming at that time. I went and told Nanda about the incident. I told him that Sheoji has fallen down. Nanda went to the village. From the village Hari Bhaiya (brother Hari), Madan, Jeevan came to the place of incident. Hardeen also came with them from the village. All these persons came and asked me about the incident. So I told them everything that I knew. Whatever I know, I have stated in the court."

In his cross-examination, he claims that he, Shanker and Sarlal had forty sheep each. He admits that on both the sides of the said place, where the sheep were grazing, there were fields in which chickpeas had been planted. In between the fields there is a way. He claims that "it is wrong to say that our sheep had entered the crops growing in the field, and for this reason the accused had spoken to us with sarcasm and anger. Police had spoken to me. It is true that some of our sheep had entered in the fields where chickpea were being grown. It is also true that the accused had come to the place where our sheep were grazing. It is true that the dispute had arisen between me, Sarlal, Shanker and Sheoji on one side, and the accused on the other, arose because the sheep had entered the crops. It is wrong to say that the accused had threatened us that they will forcefully carry away our sheep to the village and will deliver them to us only in front of five elderly persons of the village". According to this witness "the dispute started from the place where the sheep were grazing and went on till the place where Ramlal Bagria has a bara (a place where the animals are tied) and where an Oranja tree is standing". He also admits that "it is true that Sheoji was assaulted at the place where the Oranja tree was standing". He further claims that "it is wrong to say that the accused were trying to take away the sheeps belonging to Sheoji, and Sheoji told them not to do so". He further claims that in his police statement (Ex. D.1) he had told the police that Harchand had hit Sheoji with a kulhari. And that all the other accused persons had hit Sheoji with lathies. "The place where they hit Sheoji with lathies, I cannot say, as thirteen persons were assaulting him. I had informed Nanda about the incident. Nanda was working about twenty Pavda away from the place of the incident. In my police statement (Ex. D.1) I did not tell the police the part marked as ''c'' to ''d''. I did tell the police that Ramesh and Suresh were present at the scene of the crime and participated in the assault. It is wrong to say that I and Sarlal have killed Sheoji and that we went to the village and falsely took the names of the accused". The witness then said that Sheoji was killed by the accused persons. According to this witness in Ex. D.1, his police statement, he had told that Laxman had hit Sheoji on the hand with a kulhari. Then the witness said that "I told that Laxman had hit on the hand with a farsi. Why these facts are not recorded in Ex. D.1, I cannot say. Kalyan and Hariram are members of my family. I do not remember that Hariram, Sarlal and eight to ten other persons had assaulted the father of the accused persons, Ugma Ram and that there is a criminal case which is still pending. It is wrong to say that except Ramnarayan, Laxman and Gopal no other accused person was present". The witness insisted that all the thirteen accused persons were present at the place of incident.

The testimonies of Nanda (P.W.9), Sarlal (P.W.16), Shanker (P.W.17), Hajari (P.W.18), all of whom are eye-witnesses of the incident, are similar to the testimony of Kalyan (P.W.4). Each one of these witnesses has specified overt acts to the present appellants. Since their testimonies are similar to that of Kalyan''s, their testimonies are not being reproduced by this court.

It is important to note that Kalyan (P.W.4), Sheoji (P.W.6), Madan (P.W.7), Nanda (P.W.9) and Chhitar (P.W.12) all these witnesses do admit in their cross-examination that there was an animosity between the accused and the complainant parties and these witnesses. For, the complainant party had assaulted the father of the accused, a member of their family and there were criminal cases pending between the two parties.

The testimony of Dr. K.K. Tanwani (P.W.1), supports the testimonies of the eye-witnesses. According to the doctor, Sheoji had suffered sixteen injuries on his body. The injuries are as under:-

"1. Incised wound 8 cm x 4 cm x bone deep, transversely placed, middle of Rt. leg (Medially) - simple - sharp.

Incised wound 7.5 cm x 4 cm x bone deep transversely placed middle of Rt. Leg (Laterally) simple - sharp.

Incised wound 2.5 cm x 1 cm x middle deep. Rt. Shim (in between Inj. No. (1) and (2) - simple - sharp.

Incised wound 10 cm x 2 cm x bone deep (Brain matter) coming out of it) left parietal region. Obliquely placed 1 cm away from mid line-Grievous Sharp.

(Dangerous to life) Lt. Rt.

Incised wound 2.5 cm x 0.5 cm x bone deep. (obliquely placed) 2cm below Inj. No. (4)

(Simple - Sharp)

Incised wound 2cm x 0.5 x bone deep. On left mastoid region (oblique in direction) simple sharp.

Bruise 6x2 cm on Rt. Side of neck extending to mastoid region simple blunt.

Abrasion 1x 1cm Rt. Shoulder simple -Blunt.

Incised wound 2cm x 0.5 cm x muscle deep middle of Rt. F.A. (posteriorly) - simple - sharp.

Abrasion 1 x 0.5 cm Rt. F.A lower 13 postrly.

Abrasion 1 x 0.5 cm below Rt. Elbow

Abrasion 1.5 x 1 cm on Rt. Elbow.

Abrasion 1 x 1cm back of lt. Index finger.

Lacerated wound 1cm x 0.5 cm x 0.5 cm Rt. Thumb medically,

Abrasion 2.5x 0.5 cm back of neck in middle.

Bruise 5 x 1 on middle left Rt. Thigh Antrily.

Opinions -

I after conducting post mortem, we board members are in the opinion that cause of death is cerebral hemorrhage and shock as result of injury inflicted on skull (as described earlier)

Duration of death within 24 hours. All the injuries are antemortem in nature."

The internal examination of the skull reveals that there was fracture of the left parietal bone. On cut section, membranes were torn beneath sight fracture. Prow mouth coming out. hemorrhage present inside. In the opinion of the Medical Board, the cause of death is the cerebral hemorrhage and shock as a result of injury inflicted on skull.

Thus, Sheoji had suffered seven incised wounds, and few abrasions, two bruises, and one lacerated wound. According to the doctor, the injury No. 4 which was a incised wound 10x2 cm and bone deep, from which brain matter was coming out, and which was obliquely placed 1 cm away from mid line, this injury was fatal. According to the eye-witnesses, Sheoji was struck with sharp edged weapon both on his head, neck and on his foot. Thus, the medical evidence corroborates the ocular one.

Mr. Biri Singh, the learned Senior Counsel for the appellants, has vehemently contended that admittedly there is an animosity between the family of Sheoji on one side, and the accused persons on the other side. Due to this animosity, Hariram (P.W.2) has over-implicated the accused persons. Secondly, the over-implication is also clear from the fact that the incident had occurred at 6:00 PM on 18.10.2003, the FIR was lodged at 6:30 PM with the police, yet the FIR did not reach the Ilaka Magistrate till 20.10.2003 at 11:30 AM. The delay of two days clearly proves that the time taken for sending the FIR was used for consultation and for weaving a false story against the accused persons. Thirdly, with the same set of evidence against all the accused, the learned Trial Judge has acquitted seven persons and has convicted merely four persons. Therefore, the fact of over-implication is established beyond doubt. Fourthly, since all the accused were charged for offence under Sections 302/149 IPC, the acquittal of seven accused would also entitle the present appellants for acquittal. For, the learned trial court has not believed the deposition of the eye-witnesses as being truthful. Hence, it will be a serious mistake to convict the present appellants on the basis of testimonies of untrustworthy witnesses. Lastly, according to all the eye-witnesses the dispute had erupted suddenly over a trifle matter of the goats entering the fields of the accused persons and damaging the crop. Thus, there was neither a premeditation, nor a planning, nor a common intention to kill Sheoji. Hence, the case is covered by Section 304 Part-I IPC and cannot be brought within offence under Section 302 IPC.

On the other hand Mr. Aladeen Khan, the learned Public Prosecutor, has strenuously submitted that: firstly, the existence of animosity between the two factions is the very cause for the accused to take revenge upon Sheoji. According to the eye-witnesses, the accused were of the opinion that it is Sheoji who is causing the obstacle. Therefore, he should be killed forthwith. These words clearly reveal their common intention to do away with Sheoji. Secondly, even if it is a case of over-implication, even then the learned Trial Court has separated the wheat from the chaff, and has acquitted those against whom the prosecution could not prove its case to the hilt. But having strained the prosecution evidence through a sieve, the learned Judge has rightly convicted the present appellants for the alleged crime. Thirdly, there is a consistency between the ocular evidence of the eye-witnesses, and the medical evidence. Since the eye-witnesses have not been shattered in their cross-examination, since some of the eyewitnesses are independent witnesses, their testimonies cannot be discarded lightly. Fourthly, common intention can be generated at the spur of the moment; the appellants were armed with deadly sharp-edged weapons, they expressed the same opinion. Therefore, their common intention is writ large. Lastly, it is not a case of a sudden fight erupting over a trifle matter. The intensity of the attack, the gravity of the injuries, the infliction of deadly injuries on different parts of the body coupled with the verbal utterance, clearly proves that they had the intention to kill and only to kill, Sheoji. Thus, the case is squarely covered under Section 302 IPC, and does not fall under Section 304 Part-I IPC.

Heard the learned counsel for the parties, perused the impugned judgment and examined the record.

As stated earlier, Kalyan (P.W.4), Nanda (P.W.9), Sarlal (P.W.16), Shanker (P.W.17), Hajari (P.W.18) are all eye-witnesses of the incident. Nanda (P.W.9) had rushed to the village and informed Hariram (P.W.2), the complainant, that Sheoji had been attacked by the accused. Hearing this news Hariram (P.W.2), Sheoji (P.W.6), Jeevan (P.W.10), Hardeen (P.W.11), Chhitar (P.W.12) and Sheonarayan (P.W.22) had all rushed to the place of the occurrence. Although, Hariram (P.W.2) does not inform the court that he had seen the accused persons running from the scene of the crime, but Jeevan (P.W.10), Hardeen (P.W.11), Chhitar (P.W.12) and Sheonarayan (P.W.22) have categorically state that they had seen the appellants running away from the place of the occurrence. The eyewitnesses have described the incident in detail, and have categorically stated that Harchand had hit Sheoji on the head with a kulhari, Sardar had hit Sheoji on the neck with a kulhari, Ramnarayan had hit Sheoji on his feet with a kulhari, and Laxman had hit Sheoji on his hand with a farsi. Therefore, it is obvious that the appellants have committed the murder of Sheoji. Even if the argument of the learned counsel for the appellants is accepted that it is a case of over-implication, even then the learned Judge has separated the wheat from the chaff. The learned Judge has given cogent and convincing reasons for acquitting seven of the co-accused persons. What this court is the meat of the prosecution case.

The testimonies of the eye-witnesses, as noticed above, have also been corroborated by the medical evidence, the Post-Mortem Report (Ex. P.1), and the testimony of Dr. Tanwani (P.W.1). Thus, the prosecution has proven the fact that Sheoji had died a homicidal death. And the appellants caused his death.

Therefore, the only issue before this court is whether the appellants shared a common intention or not? Secondly, whether they are liable to be punished under Section 302, or under Section 304 Part-I IPC?

It is, indeed, trite to state that common intention can arise at the spur of the moment. According to the witnesses, prior to assaulting Sheoji the appellants had clearly stated that he is an obstacle, therefore, he should be killed. Their utterance at the scene of the crime is sufficient to prove their common intention. Moreover, all of them came armed with deadly weapons, like kulhari and farsi; all of them attacked Sheoji simultaneously, and caused seven incised wounds on his body, that, too, on his vital parts of his body. Thus, their common intention is crystal clear.

Although, the defence has pleaded that the incident happened over a trifle matter of the goats entering the fields of the accused, but the previous history of the relationship cannot be ignored. According to Kalyan (P.W.4), Sheoraj (P.W.6), Madan (P.W.7), Nanda (P.W.9), and Chhitar (P.W.12), there was already criminal case pending between the accused party and the complainant party. Hariram and his family members had earlier assaulted Ugma Ram, who belonged to the family of the accused persons. Thus, obviously, the accused persons wanted to wreak vengeance on Sheoji whom they saw as the main obstacle or activist in his family. Sheoji was a young man, 26 years old, who by his conduct may have instigated his family against the accused persons and Ugma Ram. Thus, the act of killing Sheoji was an act of revenge. Therefore, it cannot be said that the assault erupted suddenly, and only due to the goats entering the fields of the accused. Thus, the case clearly falls within Section 300 IPC as the intention was to kill Sheoji.

For the reasons stated above, this court does not find any merit in the present appeal. It is, hereby, dismissed.