Kajod Singh and Others vs State of Rajasthan

Shiv Kumar Sharma, J.—The appellants eleven in number, were the accused on the file of learned Additional Sessions Judge, Sambhar Lake, District Jaipur bearing Sessions Case No. 12/1997. Learned Judge vide judgment dated March 7, 2003 convicted and sentenced the appellants as under :-

Kajod Singh

Under Section 302, I.P.C :

To suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer One Year Simple Imprisonment.

Ummed Singh, Hanuman Singh, Nand Singh, Sultan Singh, Bhagwan Singh, Ratan Singh, Jagdish Singh, Heera Singh, Sur Singh and Raghuveer Singh :

Under Sections 302/149, I.P.C. :

To suffer imprisonment for life and fine of Rs. 2,000/-, in default to further suffer

Three Years Rigorous Imprisonment. Ratan Singh :

Under Section 325, I.P.C. :

To suffer Rigorous Imprisonment for Three Years and fine of Rs. 2000/-, in default to further suffer One Year Simple Imprisonment.

Kajod Singh, Ummed singh, Hanuman Singh, Nand Singh, Sultan Singh, Bhagwan Singh, Jagdish Singh, Heera Singh, Sur Singh and Raghuveer Singh :

Under Sections 325/149, IPC :

To suffer Rigorous Imprisonment for Three Years and fine of Rs. 2000/-, in default to further suffer One Year Simple Imprisonment.

All appellants :

Under Section 449, IPC :

To suffer Rigorous Imprisonment for Five Years and fine of Rs. 2000/-, in default to further suffer One Year Simple Imprisonment.

All appellants :

Under Section 148, IPC :

To suffer Rigorous Imprisonment for Three Years and fine of Rs. 1000/-, in default to further suffer One Year Simple Imprisonment.

All appellants :

Under Section 323, IPC :

To suffer Rigorous Imprisonment for One Year and fine of Rs. 500/-, in default to further suffer Three Months'' Simple Imprisonment.

The substantive sentences were directed to run concurrently.

It is the prosecution case that a written report (Ex. P-49) was lodged by Chog Singh (P.W. 1) at the Police Station, Phagi on November 11, 1996 at 4.00 p.m. with the averments that around 12 noon while he was grazing catties on the way of Anrota, Kajod snatched lathi from his hand and inflicted blows on his person. Chog Singh managed to save himself and came back to his house where he was taken care of by Rukma, his son''s daughter. After some times the appellants and one Prahlad Singh armed with lathis, pharsis, axes and swords arrived there and gave beating to Rukma with lathi. On hearing her hue and cry, Ram Singh (informant''s elder son) suddenly appeared and he was given beating with pharsis and swords. When Hari Singh, Bhagwan Singh, Shambhu Singh, Jana and Bhanwar attempted to intervene they were also beaten with lathis and Pharsis, Police Station, Phagi registered a ease under Sections 148, 149, 341, 323, 324, 307 and 452, IPC and investigation commenced. During investigation Injured Ram Singh succumbed to his injuries and case was converted u/s 302,1.P.C. On completion of investigation charge-sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge, Sambhar Lake, District Jaipur. Charges under Sections 148, 323, 325 alternatively Sections 325/149, 449, 302 alternatively Sections 302/149 and 307 alternatively Sections 307/149, I.P.C. were framed against the appellants. The proceeding against the accused-Prahlad Singh was initiated before the Court of Juvenile Justice as he was a child at the time of incident. The prosecution in support of its case examined as may as 27 witnesses. In their explanation u/s 313, Cr. P.C., the appellants claimed innocence, however, no defence evidence was adduced. Learned trial Judge on hearing the final submissions convicted and sentenced the appellant as indicated hereinabove.

The prosecution case is founded on the testimony of witnesses Chhog Singh (P.W. 1) informant, Harji Singh (P.W. 2), Chand Kanwar (P.W. 3), Rukma Kanwar (P.W. 4), Jyana Kanwar (P.W. 5), Bhanwar Kanwar (P.W. 6), Shambhu Singh (P.W. 10), Bhagwan Singh (P.W. 22), Geeta Kanwar (P.W. 24) and Gujraj Kanwar (P.W. 25). Version of these eye-witnesses has been supported by the evidence of Dr. Seema Sharma {P.W. 9), Dr. Kuldeep Mahendirata (P.W. 14), Dr. Raghuraj Kishore Vyas (P.W. 19) and Dr. Sheetal Jain (P.W. 23), who examined the injuries sustained by the witnesses and performed autopsy on the dead body of Ram Singh.

Before adverting to the submissions advanced before us, it will be appropriate at this juncture to scan the post-mortem report and injury reports.

The deceased-Ram Singh vide postmortem report (Ex. P. 47) sustained as many as 9 ante-mortem injuries as under :-

" 1. Contusion of size 1x1 cm. placed over Rt. side lower lip.

Lacerated wound of size 10 cm. x 3 cm. x bone deep placed over parieto-occipital region with clotted blood.

Bleeding from Rt. Ear present.

Left Eye black (sic) eye with diffuse swelling present over left upper eyelid.

Bruise of size 10x2 cm. Reddish blue in colour, obliquely placed over Rt. side front of chest lower part.

Abrasion of size 1 x 1 cm. placed over at iliac chest.

Incised wound of size 8 x 3 cm. x bone deep margin are clean cut regular and well defined placed over partmedial aspect of Rt. elbow c clotted blood.

Abrasion of size 1 cm. placed over medial aspect of left leg middle l/3rd part.

Abrasion of size 2 x1/4 cm. placed over front of neck lower part."

The cause of death was coma brought about as a result of head injury, which was sufficient in the ordinary course of nature to cause death.

Sambhu Singh (P.W. 10) vide injury report (Ex. P-l) sustained following injuries :-

" 1. Lacerated wound 3 cm. x 1 cm. x scalp deep placed vertically on Rt. side of mid parietal line in middle 1 /3 c fresh clotted blood.

Lacerated wound 1/4 x 1/4 cm. x skin deep swelling over dorsum of Rt. little finger fresh clotted blood.

Right thigh knee leg and foot is seen under POP slab.

Left thigh knee leg and foot is seen under POP slab."

Bhagwan Singh (P.W. 22) vide injury report (Ex. P-2) received following injuries :-

"1. Lacerated crush injury left ear divided in two vertical half - irregular margin and fresh clotted blood.

Diffuse swelling tenderness over dorsum of Rt. hand.

Abrasion 3x1 cm. on area below Rt. lateral melledus.

3 Abrasions of size 1 x V& (sic), 1/2 x 1/2 (sic) and 1/2 x 1/4(sic) near each other on medial aspect left leg upper 1/3 red in colour."

Harji Singh (P.W. 2) vide injury report (Ex. P-3) sustained following injuries :-

"1. Lacerated wound 2.5 x 3/4 cm. x scalp deep on Rt. side supra occipital region-fresh clotted blood.

Deformity - diffuse swelling over dorsum of Rt. forearm up to Rt. wrist.

Abrasion 1 cm x 1/2 cm. over dorsum of left forearm upper 1/3-diffuse swelling.

Abrasion V2 x V4 cm. over dorsum of left middle finger.

Abrasion V2 x 1/4 cm. on anterior aspect of Rt. thigh middle 1/3 red in colour."

Bhanwar Kanwar (P.W. 6) vide injury report (Ex. P-4) sustained following injuries :-

"1. Diffuse swelling over dorsum of left hand up to forearm lower 1/3.

Lacerated wound 1 x 1/2 cm. over left thenar eminence-fresh clotted.

C/o pain-tenderness over both lumber region."

Jana Kanwar (P.W. 9) vide injury report (Ex. P-9) sustained following injuries :-

" 1. Lacerated wound 7 cm. long x 1/2 cm. on the valt 14 cms. from the Rt. Ear."

Chhog Singh (P.W. 1) vide injury report (Ex. P-10) sustained following injuries :-

"1. Lacerated wound 3 x V2 cm. on the valt obliquely placed.

Lacerated wound 2 x V2 cm. irregular margin, vertically placed 3 cm. above the nose.

Lacerated wound 2 x 1/2 cm. margin irregular, middle of the back of the left index finger.

Abrasion 2 x 2 cm. on the back of the Lt. forearm, on the back of the Lt. Forearm 5 cm. below to the Lat. Epicondyle."

Smt. Rukma (P.W. 4) vide injury report (Ex. P-11) sustained following injuries :-

" 1. Abrasion 2x2 cm. on the mid line back LI L2 spine.

Tenderness 4x4 cm. and swelling, lateral lower side of arm.

Tenderness 1x2 cm. and swelling, on the latr. side of the upper to Lt. Forearm.

Tenderness and swelling 4x4 cm. on posterior surface of the upper l/3rd of Rt. Thigh."

Smt. Chand Kanwar (P.W. 3) vide injury report (Ex. P-12) sustained following injuries :-

"1. Tenderness, no visible swelling, 3 x 3 cm. on the lateral side of the upper 1/4 of the Rt. Thigh."

It also appears that at the time of arrest of appellant-Hanuman Singh, vide arrest memo (Ex. P-54), three stitched wounds were found on his head.

It is contended on behalf of the accused that there were cross-cases between the parties and the injuries on the person of deceased appeared to have been caused in the right of private defence. Dinesh Chand Sharma, Investigation Officer (P.W, 27) categorically stated that when Hanuman Singh was arrested on November 27, 1996 there were injuries on his head. The injuries were also found on the person of Ummed Singh. It was also admitted that the FIR 309/1996 was lodged by the accused party. It is further canvassed that no evidence has been led to show as to on which place the occurrence had taken place. Dinesh Chand Sharma deposed that in the site plan the presence of blood on the place of occurrence was not shown. Since the injuries on the person of Ummed Singh, Bhagwan Singh were not explained the conviction of appellants could not be sustained. It is next contended that Chhog Singh (P.W. 1) made improvements in his statement at the trial. The prosecution story has been changed completely by him at the trial. Similarly other eye-witnesses Harji Singh (P.W. 2), Chand Kanwar (P.W. 3), Rukma Kanwar (P.W. 4), Jana Kanwar (P.W. 5), Bhanwar Kanwar (P.W. 6), Shambhu Singh (P.W. 10), Bhagwan Singh (P.W. 22), Geeta Kanwar (P.W. 24) and Gajraj Kanwar (P.W. 25) made embellishments at the trial. The statements of these witnesses have not been corroborated by medical evidence. These witnesses have been contradicted with their previous statement recorded u/s 161, Cr. P.C., wherein they did not say that the head injury on the person of deceased-Ram Singh was caused by the appellant-Kajod. It is further urged that since the occurrence did not take place inside the house the offence u/s 449, IPC was not made out. There is no finding against any of the accused persons as to who caused the simple injuries on the person of injured witnesses. It is also contended that since there was free fight between the parties they could not have been convicted with the aid of Section 149, IPC. The FIR was first lodged by accused-party, thereafter the complainant party went to police station and instituted the FIR. It also appears that the accused-party and complainant party were the neighbours and free fight ensued between them all of a sudden.

Per contra, learned Public Prosecutor supported the impugned judgment and contended that the prosecution has established the charges against the appellant beyond reasonable doubt. We were taken through the statements of witnesses and other material on record.

Having analysed the evidence adduced at the trial we find that there was a public way in front of the houses of the complainant party and the appellants and complainant party were the neighbours. This fact has been admitted by Harji Singh (P.W. 2), Chand Kanwar (P.W. 3) and Rukma Kanwar (P.W. 4). As per site plan Ex. P-39, incident had taken place near the public way. Dinesh Chand Sharma .(P.W. 27), who conducted the investigation of the case, deposed that he got examined the injuries sustained by appellants-Ummed Singh and Bhagwan Singh. On November 17, 1996 when Hanuman Singh was arrested, there were three stitched wounds on his head. According to Dinesh Chand Sharma, the injuries sustained by Hanuman Singh were caused by the complainant party in the exercise of right of private defence. He also admitted that the accused lodged FIR No. 309/96 against the complainant party.

Fact-situation of the case emerges from the materials on record may be summarised thus :-

(i) Accused-appellants and complainant party were neighbours. There was a public way in front of the house of complainant party which goes to the fields of the accused-appellants.

(ii) On the fateful day around 12 noon while informant-Chhog Singh was grazing catties on the way of Arnota there were altercations between accused-appellant-Kajod and informant-Chhog Singh. Kajod snatched lathi from the hands of Chhog Singh and inflicted injuries on the person of Chhog Singh.

(iii) While the accused-appellants were coming back from the fields to their houses, they were restrained by the complainant party on account of earlier incident occurred between Kajod and Chhog Singh. Free fight took place on the way. Ram Singh (deceased) suddenly appeared at the scene of occurrence and received lacerated wound on his head with the hands of Kajod, that proved fatal. Accused-appellant-Hanuman Singh also received three injuries on his head. About the said injuries Dinesh Chand Sharma, I.O. said that the same were caused by the complainant party in exercise of right of private defence.

(iv) In the written report (Ex. P-49) Chhog Singh stated that Ram Singh suddenly appeared and sustained injuries with Pharsi and Sword. There was no specific allegation against any of the accused as to who caused injury to whom. Even at the trial Chhog Singh did not say that who caused injuries to the deceased and other injured persons. However, Harji Singh (P.W. 2), Chand Kanwar (P.W. 3), Rukma Kanwar (P.W. 4), Bhanwar Kanwar (P.W. 6), Shakti Singh (P.W. 7), Shambhu Singh (P.W. 10), Bhagwan Singh (P.W. 22), Geeta Kanwar (P.W. 24) and Gajraj Kanwar ((P.W. 25) attributed injury on the head of Ram Singh with iron rod to accused-appellant- Kajod.

(v) In regard to causing injuries to injured persons, there are material contradictions in the statements of prosecution witnesses.

(vi) Cross cases were registered and it was the accused party who instituted FIR No. 309/96 prior to the institution of FIR by the complainant party.

It is vehemently contended on behalf of the accused-appellants that injuries on the deceased were caused in exercise of right of self-defence. Whereas Dinesh Chand Sharma, I.O. deposed that it was the complainant party who inflicted injuries on the head of Hanuman Singh in exercise of the said right. The right of self-defence is a very valuable right having a social purpose. It should not be construed narrowly. In view of this in assessing the value to be attached to the evidence, the Court should rely more on human probabilities than on assertions of the witnesses (vide Vidhya Singh Vs. State of Madhya Pradesh, In the instant case it appears probable that on hearing from Chhog Singh that accused-Kajod gave beating to him, complainant party gathered in front of their houses and while the accused-appellants were passing through the public way opposite to the houses of the complainant party, they were assaulted. Free fight took place as a result of which accused appellant-Hanuman Singh received three head injuries. Accused-appellant-Kajod in the course of the fight gave One blow with iron rod on the head of Ram Singh who suddenly appeared at the scene and that blow proved fatal. In the circumstances even if the right of private defence was available to accused-appellant-Kajod, he had far exceeded it in dealing the fatal blow on the head of the deceased. He must, therefore, be held guilty under second part of Section 304, I.P.C.

Since mutual fight between the parties ensued, there was no common object and the appellants could not have been convicted under Sections 148 and 149, I.P.C. The prosecution in our opinion has failed to establish charges under Sections 325, 323 and 449, I.P.C. against the appellants beyond reasonable doubt. Since there are material contradictions in the statements of prosecution witnesses no reliance can be placed on their testimony so far as the allegations of causing injuries to individuals and committing house trespass are concerned.

As a result of the above discussion, we dispose of the instant appeal as under :-

(i) We allow the appeal of Ummed Singh, Hanuman Singh, Nand Singh, Sultan Singh, Bhagwan Singh, Ratan Singh, Jagdish Singh, Heera Singh, Sur Singh and Raghuveer Singh and set aside their conviction u/s 302 read with Sections 149, 325, 325 read with Sections 149, 449, 148 and 323, I.P.C. We acquit them from the said charges. All these appellants are on bail they need not surrender and their bail bonds stand discharged.

(ii) We partly allow the appeal of appellant-Kajod Singh and instead of Section 302, I.P.C, we convict him u/s 304, Part II, I.P.C. Since the appellant-Kajod Singh is in confinement continuously since November 12, 1996 the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant-Kajod Singh who is in Jail shall be set at liberty forthwith, if not required to be detained in any other case.

(iii) The impugned judgment dated March 7, 2003 of learned Additional Sessions Judge, Sambher Lake, District Jaipur stands modified as indicated above.