Mohan And Ors vs State Of Rajasthan

By this appeal, a challenge is made to the order dated 6th July, 2013 passed by the Additional Sessions Judge, Tonk (Raj.) in Session Case No.53/12/2012 (20/2011), convicting and sentencing the accused-appellants as under:

Accused No.1-Mohan:

For offence under Section 302 IPC - Life imprisonment with fine of Rs.5007, in case of default to pay fine, to further undergo one month additional simple imprisonment.

For offence under Section 148 IPC - One year simple imprisonment with fine of Rs. 2007, in case of default to pay fine, to further undergo one month simple imprisonment.

For offence under Section 341 IPC - One month's simple imprisonment.

Accused No.2-Nehnu:

For offence under Section 302/149 IPC - Life imprisonment with fine of Rs.500/, in case of default to pay fine, to further undergo one month additional simple imprisonment.

For offence under Section 148 IPC - One year simple imprisonment with fine of Rs.2007, in case of default to pay fine, to further undergo one month simple imprisonment.

For offence under Section 323 IPC - Three month's simple imprisonment.

For offence under Section 341 IPC - One month's simple imprisonment.

Accused No.3-Sohan Lal:

For offence under Section 302/149 IPC - Life imprisonment with fine of Rs.500/, in case of default to pay fine, to further undergo one month additional simple imprisonment.

For offence under Section 148 IPC - One year simple imprisonment with fine of Rs.2007, in case of default to pay fine, to further undergo one month simple imprisonment.

For offence under Section 323 IPC - Three month's simple imprisonment.

For offence under Section 341 IPC - One month's simple imprisonment.

HAN HIGH

Accused No.4-Hajari:

For offence under Section 302/149 IPC - Life imprisonment with fine of Rs.500/, in case of default to pay fine, to further undergo one month additional simple imprisonment.

For offence under Section 148 IPC - One year simple imprisonment with fine of Rs. 2007, in case of default to pay fine, to further undergo one month simple imprisonment.

For offence under Section 323 IPC - Three month's simple imprisonment.

For offence under Section 341 IPC - One month's simple imprisonment.

All the sentenced were ordered to run concurrently.

BRIEF FACTS OF THE CASE:

A written report was given by complainant-Shankerlal on 28th January, 2011. It was stated that at around 10.00 AM, Bherulal and his brother-Ramswaroop, father-Narayan, mother-Badam, wife-Rameshi, younger brother's wife-Kamleshi were coming to their home. When they were close to "Bada" of Chandra Meena, Nehnu, Bharatlal, Sohan, Mohan, Hazari, Shyoraji, Sita, Mausami, Prem, etc., gave them beating by "athis" and "axe". The complainant's father-Narayan received grievous injury on the head. His mother and other ladies also received injuries. The incidence was seen by Kailash and Ikram apart from other villagers.

The Police registered an FIR No.16/2011. They caused investigation and thereafter, filed charge sheet against all the accused for offences under Sections 147, 148, 307, 323, 341 and 302 IPC. The case was committed to the Court of Sessions where the charges were framed against accused-appellants for offences under Sections 147, 148, 307, 307/34, 323, 323/34, 341, 302, 302/149 IPC. The accused denied the charges thus trial commenced.

The prosecution produced twenty one witnesses apart from thirty six documents to prove their case. The statements of the accused were recorded under Section 313 Cr.P.C. They produced six documents in defence. The trial court, after marshalling the evidence, convicted the accused-appellants for the offences under Section 302, 148, 341, 302/149, 323 while acquitting them for offence under Sections 307 IPC.

ARGUMENTS OF THE ACCUSED-APPELLANTS:

Learned counsel submits that a case for offence under Section 302 IPC is not made out against the accused-appellants. If statements of the witnesses produced by the prosecution are seen, it is proved that accused-appellants were in possession of "Guvadi". The complainant party came and damaged boundaries by bush of "Guvadi" apart from a "Tap". In view of the above, the complainant party was the aggressor. The members of the accused party have also received injuries thus accused-appellants acted in self-defence. Accordingly, the trial court should have acquitted all the accused-appellants.

It is also stated that a case for conviction of accused appellants for offence under Section 302 IPC with the aid of Section 149 IPC is not made out. The accused did not come with common object to cause incidence. Even a case for conviction for offence under Section 302 with the aid of Section 34 is not made out in absence of common intention of the accused-appellants to cause incidence. From the cross-examination of the witnesses produced by the prosecution, it gets proved that complainant party was aggressor thus accused party did not come either with common object or common intention to cause incidence so as to make out a case for offence under Section 302 IPC with the aid of Section 149 or 34 IPC respectively.

It is also stated that no motive of the accused-appellants has been shown. They had no intention to cause injuries to the injured or deceased resulting in death. If the case is considered based on the evidence led by the prosecution and even the defence is ignored, it falls under Exceptions given under Section 300 IPC.

The complainant party was otherwise aggressor and accused a appellants, having right of self-defence, deserves to be acquitted.

Even if plea of self-defence is ignored, the case does not travel beyond Section 304 Part-II, accused-appellant-Mohan in absence of application of Section 149 IPC and against others, no case is made out.

It is also stated that accused-Mohan is said to have "axe" in his hand but the post-mortem report does not show injury by sharp-edged weapon. The deceased, otherwise, received only one injury, that too, by a blunt object. The aforesaid aspect has also been ignored by the trial court. It is moreso when none of the witnesses has stated about use of "axe" from its rear side.

Accordingly, even accused-appellant Mohan deserves to be acquitted.

So far as other accused-appellants are concerned, their conviction for offence under Section 302 with the aid of Section 149 is not made out and for their individual act, the case does not travel beyond Section 323 IPC, that too, when plea of self-defence is not accepted. A prayer is, accordingly, made to acquit the accused-appellants or if at all case of the prosecution is accepted then going by their own evidence, it does not go beyond Section 304 Part-II for accused-appellant-Mohan and for others under Section 323 IPC. A prayer is made to cause interference in the order passed by the trial court.

ARGUMENTS OF THE SIDE OPPOSITE:

Learned Public Prosecutor and counsel for complainant have opposed the arguments raised by learned counsel for accused appellants. It is stated that a dispute of the land exists between the brothers. As per written report, the occurrence took place when complainant party was coming back to their home. On the way, the accused party attacked wherein Narayan died.

The prosecution produced evidence to prove their case for offence under Section 302 IPC with the aid of Section 149 IPC.

The accused party assembled and were even equipped with weapons to cause incidence thus their common object has been proved by the prosecution. A prayer is, accordingly, made not to cause interference in the order passed by the trial court for offence under Section 302 IPC with the aid of Section 149.

We have considered rival submissions made by learned counsel for the parties and perused record of the case.

It is a case where the police registered an FIR No.16/2011 based on a written report, Exhibit-P19. After investigation, the charge sheet was filed against accused-appellants followed by framing of the charges. The charges were denied by the accused appellants thus trial commenced. The prosecution produced eye witnesses as well as injured witnesses to prove their case. A challenge to the order of the trial court has been made in reference to the statements of the witnesses produced by the prosecution itself.

To appreciate the argument of learned counsel for accused appellants, we have gone through the statement of PW1-Bheru Lal. He has stated about occurrence at the instance of accused party while the complainant party was coming back to their home.

As per statement of PW1, the place of occurrence is close to the "Bara" of Chandra Meena. In the cross-examination, the said witness, admitted that possession on the "Guwadi" is of the accused party. He has further admitted that "Guwadi" was surrounded by bushes. It was having a "Taap" therein. The complainant party came and removed shrubs and then damaged the "Taap". The occurrence took place thereupon.

The facts aforesaid are sufficient to prove that complainant party was aggressor and they provoked the accused-party. They entered into the land which was in possession of the accused appellants and even caused damaged therein. The members of accused party have also received injuries though a cross FIR has not been registered at their instance.

The argument of self-defence has been raised by learned counsel for accused-appellants. It has been opposed looking to the gravity of injury caused to deceased-Narayan. In view of the above, we find that even if self defence was there, accused party exceeded therein. They caused injury to deceased-Narayan, which ultimately resulted in his death.

The issue, however, remains to be considered in reference to Section 149 IPC. The facts available on record does not show that accused party came with common object to cause incidence. The statement of PW1-Bhairu Lal has been corroborated by PW2 Kaluram Meena, PW4-Smt. Kamleshi, PW10-Smt. Badma Devi and PW11-Rameshi Devi about possession accused-appellants on "Guvadi". It has been stated by the accused-appellants even in their statements recorded under Section 313 Cr.P.C. The complainant came and damaged the "Guvadi" thus common object to cause occurrence is not proved. The presence of the accused in their "Guvadi" is natural.

The individual act of the accused is thus to be seen. So far as other accused-appellants other than Mohan Lal are concerned, they said to have caused simple injuries to the injured and the deceased. The prosecution has failed to bring evidence to prove a case for offence under Section 149 IPC. It is not that accused party came with common object to cause occurrence, rather, occurrence took place when the complainant party entered into the land occupied by the accused party and damaged the boundaries of "Guvadi" and "Tap". In view of the above, we are in agreement with the argument raised by learned counsel for accused-appellants that conviction for offence under Section 302 IPC with the aid of Section 149 IPC against accused-appellants Nehnu, Sohan Lal and Hazari is not made out.

The story given by the prosecution about the occurrence, while the complainant party was returning to their home, has not been proved thus offence under Section 148 IPC would not be made out against any accused. It is also a fact that if accused party available on the land in their possession, it cannot be said to be unlawful assembly thus conviction of accused-appellants for offences under Section 148 and 341 IPC is not made out.

Since allegation against accused-appellant-Mohan for causing heady injury to the deceased-Narayan has been made, we need to consider his act for the purpose of conviction and sentence as a case for section 149 IPC is not made out. Learned counsel for accused-appellants has made argument in reference to Exceptions given under Section 300 IPC to substitute the conviction by bringing it under section 304 Part-II IPC. It is not only for the reason that complainant party entered into the land of the accused-appellants but even they provoked them for the occurrence. If statements of the accused-appellant under Section 313 Cr.P.C. are considered, they have come with defence that while they were in possession of the land, the complainant party came to disturb the possession and damaged boundaries of """Guvadi" and "Taap". Accordingly, we find substance in the argument of learned counsel for accused-appellants to bring the case in Exceptions given under Section 300 IPC. According to us, a case is not made out against Mohan for offence under Section 302 IPC, rather, it is under Section 304 Part-II IPC.

In view of the above, we substitute the conviction of the accused-appellant-Mohan from Section 302 IPC to Section 304 Part-II IPC while acquitting remaining accused-appellants for offence under Section 302 IPC with the aid of Section 149 IPC. All the accused are acquitted of the offences under Sections 148 and 341 IPC.

The accused-appellant-Mohan has been convicted for offence under Section 304 Part-II IPC thus interference in sentence is also made. Taking into consideration overall facts available on record, we sentence accused-appellant-Mohan to seven years imprisonment for offence under Section 304 Part-II IPC while maintaining fine and consequence of default given by the trial court. Accused-appellant-Mohan is acquitted of other offences.

So far as accused-appellants-Nehnu, Sohan Lal and Hazari are concerned, they are acquitted of all the offences other than for offence under Section 323 IPC. Their conviction and sentence by the trial court under Section 323 IPC is thus maintained.

It is informed that all the accused-appellants have already suffered the sentence. Accordingly, the jail authority would take note of the aforesaid and would release accused-appellant-Mohan forthwith, if he has already served the imprisonment.

The appeal is allowed in part with the aforesaid.

Since accused-appellants-Nehnu, Sohan Lal and Hajari have been convicted for the offence under Section 323 IPC and their sentence was suspended by this court, their bail bonds are ordered to be discharged.

As per Section 437-A of the Code of Criminal Procedure, accused-appellants-Nehnu, Sohan Lal and Hazari are directed to furnish a personal bond in the sum of Rs.50,000/- each with one surety in the like amount before the Registrar (Judicial) of this Court, which will be effective for a period of six months with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants will appear before the Supreme Court on the receipt of notice thereof.