Jagdish vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.�Ram Niwas (P.W. 2) on 2.9.1996 at 10:30 PM submitted a written report (Exhibit-P. 4 ) before Hari Singh (P.W. 9), SHO Police Station Patan. In the said report he had named nine persons as accused, which included Sheo Narayan son of Jaila Ram, his three sons - Kishori alias Ram Kishore, Sarjeet and Jagdish, and two daughters-in-law, namely Lali wife of Jagdish, appellant, and Santosh wife of Kishori alias Ram Kishore. Besides these six persons, three sons of one Prahlad, namely Ram Singh, Sadhu Ram and Rameshwar were also named as accused.

Investigating Agency submitted charge-sheet only against Sheo Narayan and his three sons Kishori alias Ram Kishore, Sarjeet and Jagdish. Two ladies being daughters-in-law of Sheo Narayan, and three sons of Prahlad named above, were not sent for trial as they were found innocent by the Investigating Agency.

An application was filed under Section 319 Cr.P.C. for summoning the accused not sent for trial as additional accused. Additional District & Sessions Judge (Fast Track) Sikar on 29.5.2003 had dismissed the application. A Single Judge of this court on 16.11.2005 had set aside the order passed by the Trial Court, and ordered that accused be summoned to stand trial. Matter went upto Hon''ble Supreme court. In case titled Ram Singh and Others Vs. Ram Niwas and Another, , order passed by the High Court was set aside, and order passed by Additional District & Sessions Judge was upheld. Therefore, the proceedings against five persons not sent for the trial, stood dropped.

Relevant for our purposes, is the role assigned to Ram Singh qua whom application for summoning under Section 319 Cr.P.C. stood dismissed, and has attained finality upto Hon''ble Apex Court.

Out of the four accused sent for trial Sarjeet Singh, brother of present appellant Jagdish, deserted the trial and was declared proclaimed offender. Kishori alias Ram Kishore died during the trial, and the Trial Court vide order dated 15.1.2001 dropped proceedings against him.

Trial proceeded and was concluded.

The court of Additional Sessions Judge, Neem Ka Thana, District Sikar, vide impugned judgment dated 25.11.2010, held appellant Jagdish son of Sheo Narayan, guilty of offence under Section 302/34 IPC, and sentenced him to undergo life imprisonment and pay fine of Rs. five thousand, in default thereof to undergo six months'' simple imprisonment. Appellant Jagdish was also convicted for offence under Section 323/34 IPC, and was sentenced to undergo six months'' simple imprisonment. Sentences on both the counts were ordered to run concurrently.

Sheo Narayan, co-accused of the appellant, was acquitted of offence under Section 302/34 IPC, and was only convicted for offence under Section 323/34 IPC, and was released on probation considering that he was aged between 75-80 years.

To assail conviction pronounced and sentence awarded by the Trial Court, present appeal has been preferred.

Before we proceed to notice evidence unfolded by the prosecution witnesses, it would be necessary for us to note brief contents of the complaint Exhibit-P. 4 submitted by Ram Narayan (P.W. 4). In his written report Ram Niwas (P.W. 2) stated that on 2.9.2006 at about 6:30 PM his wife Kanesh had gone to throw gobar in their rudi. Seeing her alone, Jagdish son of Sheo Narayan, Ram Kishore son of Sheo Narayan, Sarjeet son of Sheo Narayan, Lali wife of Jagdish, Santosh wife of Ram Kishore, Sheo Narayan son of Jaila Ram, Ram Singh son of Prahlad, Sadhu Ram son of Prahlad, Rameshwar son of Prahlad, with common intention attacked his wife Kanesh. Jagdish gave an injury with an axe (kulhari) on the head of Kanesh, due to which she became unconscious and fell on the ground. At that time mother of Ram Niwas was going to the fields. Seeing Kanesh lying unconscious, she made an attempt to lift her. Then she was encircled by Sarjeet son of Sheo Narayan, Santosh wife of Ram Kishore. Sarjeet gave an injury with a lathi on the head of mother of the complainant Ram Niwas. All accused were standing there. Complaint along with his brother and father was returning from his fields. Father was going ahead followed by two sons, which included Ram Niwas (P.W. 2) and Ramesh (P.W. 7). Mother of the complaint was raising noise. Prabhu Dayal, father of the complainant, went ahead. When he reached near, all the accused encircled him and Ram Singh son of Prahlad armed with farsi, Ram Kishore son of Sheo Narayan armed with an axe (kulhari), Jagdish son of Sheo Narayan armed with an axe (kulhari) caused injuries on the head and hands of father Prabhu Dayal. Other accused who were standing there also caused injuries to the father Prabhu Dayal with lathies. They also caused injuries to Ram Niwas and Ramesh, sons of Prabhu Dayal. Sheo Narayan son of Jaila Ram gave a farsi blow on the head of Ramesh. Santosh wife of Ram Kishore, Lali wife of Jagdish, Sadhu Ram son of Prahlad etc. gave injuries with lathies to Ram Niwas. At that time, Mahaveer son of Bhanwar Lal, Kailash son of Ramji Lal, Ramji Lal son of Basanta, Santra wife of Dharam Pal, were attracted to the spot. They made request to the accused, and brought injured to the house. A request was made to the Investigating Officer that the accused be booked and dealt with sternly.

The above-said FIR was investigated as stated earlier. Charge-sheet was submitted against the four accused, who were sent for trial.

After the case was committed, charges were framed and trial commenced against the accused.

Prosecution examined P.W. 11 Dr. Ramavtar Sharma. This witness was posted on 2.9.1996 at Community Health Centre, Patan. On the request made by police, he had examined Ram Niwas son of Prabhu Dayal Yadav and found four injuries on his person, being contusions. Injury No. 1, was 15 x 3 cm contusion on the left side of chest. Injury No. 2 was 10 x 3 cm contusion on the left scapular region. Injury No. 3 was contusion 5 x 8cm on the head. Injury No. 4 was a contusion 10 x 2cm on left thigh. All injuries were found simple.

This witness on the request made by the police had also examined four accused, namely Sarjeet, Jagdish, present appellant, Ram Kishore, accused who died during trial, and Sheo Narayan, father of three injured who has only been convicted for offence under Section 323 IPC. As per Dr. Ramavtar Sharma (P.W. 11), Sarjeet was examined vide Injury Report (Exhibit-D. 4). Sarjeet had five injuries on his person. Injury No. 1 was a contusion 10x4cm on the right side of the chest. Injury No. 2 was abrasion 1x1/2cm near the right ear. Injury No. 3 was abrasion 1x1/2cm on the right ring finger. Injury No. 4 was contusion 5x4cm on the top of head, and Injury No. 5 was also contusion 1x1x1cm on the lateral side of right foot. Vide Exhibit-D. 5 this witness conducted radiological examination of injured Sarjeet, accused, and found fracture of right foot.

Jagdish, accused, was also examined by Dr. Ramavtar Sharma (P.W. 11). Injury report qua him is Exhibit-D. 6. Jagdish had allegedly suffered two injuries. No. 15 x 4 cm contusion on right leg and No. 2 was 1xv2cm injury on right cheek.

Ram Kishore, accused, was examined vide medico-legal report Exhibit-D. 7. Four injuries were found on his person. Injury No. 1 was abrasion 2x1 cm on the right thumb. Injury No. 2 was lacerated wound of 1/2x1/2cm on the middle of left forearm. Injury No. 3 was contusion 5x4cm on the iliac crest, and Injury No. 4 was an old scar present on the Knee.

This witness also examined Sheo Narayan and proved on record medico-legal report Exhibit-D. 8. There were three injuries present on person of Sheo Narayan, accused. Injury No. 1 abrasion 1/2x1/2cm on parietal region. Injury No. 2 was abrasion cum contusion 5x5cm on dorsal side of left hand and injury No. 3 contusion 6x5cm on left scapular region. As per x-ray report Exhibit-D. 9, there was fracture of middle finger of left hand.

The learned Trial Court has not convicted Sheo Narayan, accused, with the aid of Section 34 IPC so far offence of murder is concerned. Therefore, lot many arguments have been advanced before us regarding the nature of injuries suffered by Prabhu Dayal, deceased. We shall extensively notice medical evidence of Prabhu Dayal, deceased. Prabhu Dayal was examined on 2.9.1996 at 10:30 PM at Govt. BDM Hospital, Kotputli by Dr. Birbal Yadav (P.W. 18). Relevant extract of Medico-legal report-P 30 reads as under:--

General Condition-

Patient is unconscious

Pupils - round regular ...

Pluse 90/ml.

BP - 110/90

Patient referred to SMS hospital Jaipur due to low CL

Doctor found all the four injuries to be grievous. It is to be noted that injury No. 4 was a fracture of left arm, and this injury was accompanied by a bruise 5x2-1/2cm. So far injury Nos. 2 and 3 at the person of Prabhu Dayal are concerned, lot of cross-examination was extended by the defence counsel to prove that injury Nos. 2 and 3 are not independent injuries but are result of injury No. 1. In cross-examination, Dr. Balbeer Yadav (P.W. 18) admitted that injury Nos. 2 and 3 being diffused swelling, were having no external mark and the diffused swelling is due to presence of the homotoma. This witness further stated that as per x-ray report, there was fracture of scalp vault. He further stated in Injury Statement, Exhibit-P. 30, that no dimension of diffused swelling has been noted and specified.

Prabhu Dayal expired on 3.9.1996 at 9:00 PM. His post-mortem was conducted on 4.9.1996 at 12 midnight by Dr. P.C. Vyas (P.W. 20). He had found surgical wound on the head of deceased. He further stated that there was a fracture on the left humerous. During post-mortem examination this doctor had further found contusion on the chest, and fracture of seventh left rib. According to the witness, cause of death was ''coma'' due to injury caused to skull and brain. All injuries were anti-mortem.

We shall also briefly notice injuries suffered by Kanesh (P.W. 8), Ramesh son of deceased (P.W. 7), and Bhagwati (P.W. 12) widow. On 2.9.1996 at 10:45 PM medico-legal examination of Kanesh was conducted by Dr. Balbeer Yadav (P.W. 18), who had found one lacerated injury on the scalp of Kanesh. On the same day, at 11:00 PM this doctor examined Ramesh (P.W. 7), and had found two injuries on his person. Injury No. 1 was lacerated wound 3x1/2cm skmaeep onxne right side of forehead. Injury No. 2 was lacerated wound 1x1/4cm skin on pinna of the right ear. Bhagwati (P.W. 12) had suffered one bruise 4x2 cm on the right wrist.

Now it is turn for us to take notice of the testimony of the injured eye witnesses.

Ram Niwas, complainant, (P.W. 2) while reiterating what was stated by him in the complaint Exhibit-P. 4, made an improvement and stated that Ram Singh gave a farsi blow from the reverse side, Kishori alias Ram Kishore gave a kulhari blow from the reverse side, and Jagdish gave a blow from the reverse side of kulhari, on the head of the deceased. Therefore, he gave description of injuries caused by each accused on various parts of the injured. He further introduced that Ram Singh, Kishori aliarolam Kishore and Jagdish each caused injury on the head of Prabhu Dayal deceased S/o. Baseta Ram.

To similar effect is the statement of Ramesh (P.W. 7), Kanesh (P.W. 8), and Bhagwati (P.W. 12).

Besides these four injured witnesses, Kailash (P.W. 13), Ramji Lal (P.W. 15), Sumitra (P.W. 17) daughter-in-law of the deceased, had stepped into witness-box as eye witnesses of the occurrence.

P.W. 1 Prabhu Dayal son of Ganpat Ram, had attested site-plan Exhibit-P. 1, and has also witnessed to the recoveries effected from the spot vide memos Exhibit-P. 2 and Exhibit-P. 3. Jagdish Prasad (P.W. 3) is witness to the recovery of weapon from the accused. P.W. 4 Birbal had also attested site-plan Exhibit-P. 1. TSirbal Ram Gujjar (P.W. 5), being Constable, had witnessed the arrest memo of the accused and also took into possession clothes of the deceased. Constable Rishi Kumar (P.W. 6) took into possession dhoti Exhibit-P. 10 of the deceased. Constable Dharam Pal (P.W. 14) took six articles from the Malkhana and deposited the same in the Forensic Science Laboratory. Dharam Pal, another son of the deceased, visited hospital at Alwar to ask welfare of his family member. Head Constable Mali Ram (P.W. 16) had attested the Inquest.

Nandram Choudhary (P.W. 19) being Circle Officer, had carried investigation. He has proved various facets of the investigation and the recoveries from the spot.

After closure of the prosecution evidence, statement of the accused were recorded under Section 313 Cr.P.C. All incriminating circumstances and evidence was put to them, they pleaded innocence and false implication.

Shri Deepak Soni, appearing for the appellant, has advanced three fold arguments. It is contended that there are injuries on the person of four accused, namely Jagdish, Sarjeet, Sheo Narayan and Ram Kishore. They have not been explained by the prosecution, and thus no reliance can be placed on the testimony of injured witnesses as they have suppressed the origin and genesis of the occurrence. Secondly, it is contended that though in the FIR it was stated that Ram Singh with a farsi, Kishori alias Ram Kishore with a kulhari and Jagdish, present appellant with a kulhari, had caused injuries to deceased on head and hands, in the 161 Cr.P.C. statement, recorded by the Investigating Officer, injury on the head was attributed to Kishori alias Ram Kishore, and subsequently after death of Kishori alias Ram Kishore, in court witnesses have made a departure from previous statements made to the police and have attributed one injury each on the head of the deceased to Kishori alias Ram Kishore, Ram Singh and the present appellant. It is contended that the witnesses made an effort to depose in consonance with the medical evidence and have thus, shifted their stance from the statement made by them before the police under Section 161 Cr.P.C. It has been further urged that if we take evidence of doctor who examined Prabhu Dayal first in time, then it is apparent that there is only one injury on the head of the deceased, and injury No. 2 and 3 were not independent wounds and thus, the appellant could not be convicted for offence of murder with the aid of Section 34 IPC.

Lastly, it is submitted before us that since Ram Singh, similarly situated accused, who had also caused injury on the head of the deceased, as per the deposition of the witnesses in the court, has not been put to trial and since order passed by the court against him under Section 319 Cr.P.C. had been set aside by the Hon''ble Apex Court, appellant Jagdish should also be equally treated being similarly situated.

The learned Public Prosecutor has placed reliance on the testimony of injured eye witnesses, who according to him have been duly corroborated by the independent persons of the locality. As per the Public Prosecutor, testimony of witnesses invoke credibility and we should place implicit reliance thereupon.

Having heard counsel for the parties, we shall deal with each argument raised by the counsel for the appellant.

So far non-explanation of the injuries on the person of accused and the family members are concerned, we are of the view that the injuries suffered by the accused are not of such a nature that the prosecution ought to furnish explanation for causing the said injuries.

Surjeet accused who deserted the bail had allegedly suffered five injuries and there is fracture only on the finger of the foot which is a non-vital part of the body. We cannot say with certainty that injuries suffered by Surjeet accused cannot be, said to be self suffered.

Sarjeet had also suffered abrasion. Furthermore, one contusion on the top of head of just 5x4cm.

Sheo Narayan had also suffered fracture of the third metacarpal bone.

Nature of injuries suffered on person of accused is such that no explanation from prosecution is called for.

For us the period determined by the doctor between sufferance of the injuries and examination of the injured accused also causes doubt, whether accused had suffered injuries in the same very occurrence or not. Be that as it may, nature dimension and the seat of injuries, allegedly suffered by accused are not such mat the prosecution is bound to explain the same. Hence, we cannot say that prosecution has suppressed origin and genesis of the occurrence and the witnesses are not truthful.

So far as the second argument is concerned, if we extend maximum leeway or premium to the defence and hold that Prabhu Dayal had received only one injury on the head and injury Nos. 2 and 3 found during medico-legal examination, were not independent injuries and same were result of injury No. 1, still deceased Prabhu Dayal had suffered fracture of arm and fracture of left seventh rib. In the FIR Ram Niwas (P.W. 2) has specifically stated that Ram Singh with a farsi, Kishori alias Ram Kishore with a kulhari and the present appellant with a kulhari have caused injuries on the head, and hand of the deceased Prabhu Dayal. So each of the three accused has been assigned injury, so far as the deceased is concerned. It is true that the witnesses in their over zeal taking injury Nos. 2 and 3 which is a diffused swelling on the head, have assigned these injuries, injury Nos. 1, 2 and 3 to all the three accused, namely Ram Singh, Kishori alias Ram Kishore and the present appellant, and on this score the witnesses have been duly confronted, yet we cannot ignore that in the FIR which contained a prompt version, grievous injury on the person of the deceased has also been attributed to the present appellant. Therefore, we have no doubt in our mind that after the injuries were caused to Kanesh (P.W. 8) and Bhagwati (P.W. 12), present appellant Jagdish along with Ram Singh and Kishori alias Ram Kishore, who died during the trial, had caused injuries to Prabhu Dayal. Thus, the appellant shared common intention with the co-accused to cause lethal injury to the deceased Prabhu Dayal which was sufficient to cause death in the ordinary course of nature.

So far third argument regarding non-prosecution of Ram Singh is concerned, we cannot extend same benefit to the appellant. The appellant has suffered an injury in the occurrence though same is not serious injury. Ram Singh has suffered no injury in the occurrence. Thus, presence of the present appellant at the spot is stamped. He cannot wriggle out so far his presence at the spot and participation in the occurrence is concerned. Thus, case of the present appellant cannot be equated with the case of Ram Singh, who was not sent for the trial.

Having rejected all the arguments of learned counsel for the appellant, we are of the view that all broad features and the role assigned, evidence of the injured witnesses, aspire confidence and they are to be believed so far as the role of the appellant in causing injury to deceased is concerned. Consequently, being fully conscious that appellant has not been convicted under Section 302 substantively but with aid of Section 34 IPC, we uphold the conviction of the appellant for offence under Section 302/34 IPC and the sentence awarded thereupon.

As a result of the above, the present appeal being devoid of merit, is dismissed.