Narain and Another vs The State of Rajasthan

Kanta Bhatnagar, J.—Appellants Gheesa and Narain along with eight others were tried for the charge Under Sections 147, 148, 302, 307, 323 read with 149 I.P.C. by the Additional Sessions Judge, Bhilwara. Vide judgment dated August 29,1985, eight accused were acquitted of the charges. Gheesa appellant was however held guilty u/s 302/34 and 323/34 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 150/-, in default of payment of fine to undergo three months R.I. on the first count and three months R.I. on the second count. Narain appellant was held guilty u/s 302/34 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 150/-, in default of payment of fine to undergo three months R.I. Gheesa and Narain have preferred this appeal against that judgment.

The proseuction case was that P.W. 20 Sohan Singh, A.S.I, of Bigod Police Station had gone to Bigod from Police Chowki Barundi in connection with investigation of a case. While returning to the Police Station on January 17, 1983 on reaching in the way to village Hingonia he got information about there being quarrel between the Jats and the Brahmins. He went to village Hingonia and came to know about Ganesh getting injured. He went to the house of Ganesh and saw injuries on his person. Ganesh informed him that on January 16, 1983 he and others had brought grass in four bullock-carts from the ''Beeda'' of Ram Sukh. On January 17, 1983 Ram Sukh, Narayan, Pyarchand and Madhu had gone to bring grass from the ''Beeda'' and he had gone to bring the articles for his shop. He saw that Ram Sukh, Narain, Pyarchand and Madhu were bringing grass in the bullock-carts. Nand Ram, Gheesa, Sunda and Banshi were found there in the fields. There was dispute and litigation between the Jats and the Brahmins regarding the way leading to the ''Beeda''. On seeing the aforesaid four persons moving there, Ganesh and others thought it proper not to proceed ahead that way but appellants Gheesa and Narain and eight others (since acquitted by the trial Court) started beating to Ramsukh, Narain son of kashi Ram, Pyarchand and Ganeshlal. Gheesa, Narain son of Javara and Narain son of Gulab were armed with axes and the remaining with lathies and all of them caused injuries to the four victims with the weapons they had. Sohan Singh, A.S.I. (P.W. 20) sent the information to the Police Station and case was registered against ten persons. Sohan Singh (P.W. 20) started investigation at the site. Thereafter Station House Officer and Deputy Superintendent of Police also reached there and prepared the site inspection memo. On January 17, 1983 Dr. Himmat Singh (P.W. 14) of Referal Hospital, Mandalgarh examined the injuries of Madhu son of Nathu and noted three simple injuries caused by blunt object on his person and prepared the injury report Ex.P/26. On the same day the Doctor examined Narain son of Kashi Ram and noted seven injuries with blunt object on his person and prepared the injury report Ex.P.27. The Doctor on that day also examined the injuries of Pyarchand son of Madholal and noted five simple injuries by blunt object on his persons and prepared the injury report Ex.P/28. The Doctor also examined injuries of Ganesh son of Arjun and noted eight simple injuries by blunt object on his person and prepared the injury report Ex. P.29. The Doctor advised X-ray for certain injuries of Ganesh and Pyarchand but on X-ray no bone injury was found. Hence all the injuries of these four persons were designated as simple in nature. Ramsukh had succumbed to the injuries sustained by him. Dr. Laxman Kumar Verma (P.W. 15), Modical Officer, Government Hospital, Barundini conducted the autopsy over the dead body and noted following two injuries on his person:

Incised wound 5 1/2 cm. x 2 cm x 4 cm. on right cubital fossa.

Lacerated wound on left perietal region of scalp 5 1/2 cm., x 3cm. x 4 cm.

According to the Doctor injury No. 1 was caused by sharp weapon and injury no. 2 by blunt object. Injury No. 1 was held dangerous. The death according to the Doctor was the cumulative effect of the two injuries.

Chargesheet against the appellants and eight others was filed. On receiving the case on committal by the Chief Judicial Magistrate, Bhilwara, the learned Additional Sessions Judge, Bhilwara chargesheeted the appellants and eight others Under Sections 148, 302/149, 323/149 I.P.C. He held the case established against Gheesa son of Gulab and Narain son of Jawara only and convicted and sentenced them as stated earlier. The eight co-accused were acquitted.

We heard Mr. Doongar Singh, learned Counsel for the appellants and Mr. K.L. Jasmatiya, learned Public Prosecutor for the State.

The learned Counsel for the appellants strenuously contended that when the learned trial Judge has disbelieved the evidence of the prosecution witnesses regarding the eight co-accused, conviction of the two appellants on the same evidence is not justified. The learned Counsel emphasized that the head injury of Ram Sukh assigned to appellant Gheesa is by blunt object whereas Gheesa is said to be armed with axe a sharp edged weapon and therefore the witnesses attributing head injury to Gheesa should not be believed. The learned Counsel submitted that there were two accused by name Narain, one being son of Gulab and the other being son of Jawara. According to the learned Counsel it is for the first time in their statements in the Court that Narain son of Kashilal (P.W. 12) and Pyarchand (P.W. 13) have stated that Narain caused axe blow on the head of Ram Sukh and then another Narain caused axe blow on the right hand of Ram Sukh. They further stated that the name of the father of Narain who caused injury on hand of Ram Sukh is Jawara. It cannot be therefore said with certainty that out of two persons bearing the same name it was Narain son of Jawara who might have caused injury on hand by axe because both the accused bearing the same name are said to be armed with axe.

The learned Public Prosecutor controverted these contention and submitted that Gheesa might have used the axe with the blunt side and there is no reason to disbelieve the prosecution case about he being the author of the head injury by blunt object. Regarding Narain son of Jawara, the learned Public Prosecutor referred to the statement of Narain son of Kashilal (P.W. 12) and Pyarchand (P.W. 13) and submitted that they have specifically attributed the incised wound of Ram Sukh to Narain son of Jawara and there is no reason to disbelieve these witnesses.

At the very out set it may be observed that the learned trial Judge has taken it to be a case of exaggeration and did not feel inclined to consider it an offence by the members of an unlawful assembly, out of ten persons he had held guilty only two. It is also pertinent to note that Ganesh Lal, Narain, Pyarchand and Madhu injured have not been believed by the learned trial Judge even regarding the authors of their own injuries except that Ganesh has been held guilty for one simple injury to Narain son of Kashi Lal and has been sentenced u/s 323 I.P.C.

Gheesa is said to be armed with axe at the relevant time. The argument of the learned Public Prosecutor is that he might have use the blunt side of the axe is of no help to the prosecution. If a person is said to be armed with sharp edged weapon, it is presumed that he must have used the weapon from the sharp side unless there is evidence to suggest that the blunt side of that weapon was used and not the sharp side. Apart from this in this case Tulsi Ram (P.W.5) has specifically stated that Gheesa had inflicted axe blow with sharp side on the head of Ram Sukh. In order to arrive at a conclusion we would refer to the relevent evidence on the record. Ganesh Lal (P.W. 1) has stated that he hand seen Ram Sukh, Narain, Pyarchand and Madhu being given a beating but could not say as to who has caused injury on what part of Ram Sukh. He has stated that each accused had atleast caused one injury each and that too with force. It is to be noted that there were ten accused and only two injuries have been sustained by Ram Sukh. Tulsi Ram (P.W. 5) has stated that two accused by name Narain and one Gheesa had axe with them According to him Gheesa casued axe injuries on head, neck and other parts of the body and the two accused by name Narain had also caused injuries to him. The witness stated that he was not knowing the names of the various accused except that of Narain and that he has stated before the Police that he was acquainted with the assailants but was not knowing their names. The witness specifically stated that Gheesa had used the sharp side of the axe while causing injuries on the head of Ram Sukh. Ram Lal (P.W. 10) has stated that he had named eight persons as the assailants but could not say who inflicted injuries on what part. According to Gopal Lal (P.W. 11) the assailants armed with axe had caused about three injuries each with the sharp edged side of the axe they had. Narain (P.W. 12) has stated that Gheesa and Narain both inflicted axe blow on the head. Pyarchand (P.W. 13) has stated that Gheesa inflicted axe blow on the head of Ram Sukh and Narain son of Jawara also inflicted axe blow on the head of Ram Sukh and the other Narayan inflicted axe blow on the hand of Ram Sukh. According to the witness, the three persons armed with axe might have inflicted two or three axe blows each to Rain Sukh.

Gheesa who is said to have axe with him is said to be the author of the lacerated wound on the head of Ram Sukh. When the learned trial Judge had disbelieved the prosecution witnesses regarding the participation of eight persons, the conviction of Gheesa on this type of evidence, when the injury assigned to him could not have been caused by the weapon he is said to be armed with, cannot be justified. Gheesa has also been held guilty for simple injury of Narain son of Kashilal (P.W. 12) when the prosecution witnesses have been disbelieved regarding other simple injuries caused by other persons to Narain son of Kashilal and the injuries caused to Ganeshlal, Pyarchand and Madhu no credence can be placed on the statement of Narain son of Kashilal regarding simple injury by blunt object alleged to have been caused to him by Gheesa who is said to be armed with axe. If the persons with lathies to whom the simple injuries of four persons have been attributed have been acquitted there cannot be any justification for holding Gheesa guilty for the simple injury caused to Narain son of Kashilal.

Out of six eye witnesses viz. Ganeshlal (P.W. 1), Tulsi Ram (P.W. 5), Ram Lal (P.W. 10), Gopal Lal (P.W. 11), Narain son of Kashilal (P.W. 12) and Pyarchand (P.W. 13) only last two i.e. Narain son of Kashilal (P.W. 12) and Pyarchand (P.W. 13) have stated about Narain son of Jawara appellant being the author of the incised wound on right cubital fossa of Ram Sukh.

The prosecution case is that ten persons had given severe beating to Ram Sukh. Ram Sukh had sustained only two injuries i.e. one on right cubital fossa and other on left perietal region of scalp. Except the two witnesses Narain (P.W. 12) and Pyarchand (P.W. 13) the other witnesses have simply stated that Narain casued axe blow to Ram Sukh. When there were two persons by name Narain the statement of other witnesses have rightly not been taken into consideration by the learned trial Judge. The learned trial Judge has however taken into consideration the statement of Narain and Pyarchand who have stated that Narain who had inflicted axe blow on the hand of Ram Sukh was son of Jawara. Attention of witness Narain (P.W. 12) was drawn to his police statement (Ex. D/4) where he has not stated about Narain son of Jawara causing injury on the hand of Ram Sukh and Gheesa casuing injury by axe on the head of Ram Sukh. The witness could not give the reason. This shows that the witness has improved his version in the Court in order to make a particular accused the author of a particular injury. This is also evident from the record that he has stated in the Court that the three assailants who had axe with them had caused one injury each to Ram Sukh. If it was so then there must have been at least three injuries whereas there were only injuries i.e. one incised wound and one lacerated wound. According to Pyarchand Narain son of Gulaba has been acquitted. If the version was correct then no injury must have been caused by Gheesa. Pyarchand (P.W. 13) has however stated, that the other Narain caused axe injury on the right hand of Ram Sukh. Though he has not stated the parantage of that other Narain but there being only two accused bearing the name Narain and the head injury being assigned to Narain son of Gulaba, the learned trial Judge had taken other Narain causing injury on the hand to be Narain son of Jawara. Attention of the witness was drawn to his Police Statement (Ex.P./5) where it is not mentioned that it was Narain son of Jawara who had caused axe injury on the hand of Ram Sukh. The witness simply stated that he did state so but could not say as to why it does not find place in his statement. This shows that the witness has improved his version in the Court. He has also like witness Narain son of Kashi Lai exaggerated the version stating that the three accused who had axe with them might have inflicted two or three injuries each to Ram Sukh. If it was so then Ram Sukh must have sustained at least six injuries with sharp edged weapon. The witness also stated that he had also seen seven other accused inflicting lathi blows to Ram Sukh. When there were only two injuries, one by sharp edged weapon and one by blunt object, this type of exaggerated version of Pyarchand raises suspicion on the credibility of his version. The learned trial Judge has rightly disbelieved these witnesses regarding eight co-accused and on the same analogy these witnesses do not appear to be worthy of credence to us regarding Gheesa and Narain and their testimony the two appellants can not be held guilty.

Consequently, the appeal is allowed Gheesa and Narain appellants are acquitted of the charge levelled against them. Their conviction and sentences are set aside. Gheesa is in Jail. He shall be set at liberty forthwith if not required in any other case. Narayan is on bail. His bail bonds stand discharged.