Om Prakash and Others vs State of Rajasthan

N.N. Mathur, J.—This appeal is directed against the judgment dated 26.10.1999 passed by the Additional Sessions Judge, Raisingh Nagar convicting the appellants for the offence u/s 302/34 I.P.C. and sentenced to undergo imprisonment for life and each of them to pay a fine of Rs. 2000/-. The appellants have also been convicted for the offence u/s 307/34 I.P.C. and sentenced to 7 years rigorous imprisonment and to pay a fine of Rs. 500/-. The appellants have been convicted for the offence u/s 447 I.P.C. and sentenced to 3 months rigorous imprisonment and to pay a fine of Rs. 500/-.

Briefly stated the prosecution case is that on 15.11.1994 at about 6.45 P.M., P.W. 3 injured Banwarilal gave statement Ex.P. 3 to the police stating inter alia that he along with his father Bhagirath had gone to the field at Chak 52 N.P. at about 11:30 A.M. While they were cutting ''Gwar'' crop, his uncle Om Prakash his two Sons Kishan and Dilip along with Suresh son of Prithviraj arrived and asked them not to cut the crop. The command was not accepted by them. Accused Kishan and Suresh caught hold of him and threw on the ground. Om Prakash inflicted a knife injury on his neck. Thereafter, Om Prakash and Dilip caught hold his father Bhagirath and threw on the ground. Om Prakash picked up a ''Kassi'' and inflicted 2 or 3 blows to his father. He also inflicted injuries to him. Om tried to inflict knife injury on him, but he could catch hold him by hand. He took bite on his neck. The knife from his hand fell down. Appellant Om inflicted injury by knife near his eye. He also inflicted injury on thigh. The accused persons left the field leaving them in injured condition. He slowly moved towards the road. He could get lift in the jeep of Advocate Narendra Singh. He was taken to the hospital. He also stated that his father died on the spot, on account of serious injuries suffered by him. On this statement, police registered a F.I.R. Ex.P-34 and proceeded with investigation. After usual investigation, police laid charge-sheet against Om Prakash alias Amarchand and Suresh Kumar son of Prithviraj for offences Under Sections 447, 323, 324, 325, 307, 307/34, 302, 302/34 I.P.C. During trial, an application Under Sections 193 and 319 Cr.P.C. was moved to implead accused Kishan and Dilip also as accused in the case, By order dated 4.12.1995, they were also added as accused.

The appellants denied the charges levelled against them and claimed trial. The prosecution in support of the case examined 17 witnesses and produced number of documents. In their statements u/s 313 Cr.P.C. the accused persons denied the correctness of the prosecution evidence appearing against them. Appellant Om Prakash stated that on 13.11.1994, he along with Suresh went to 52 N.P. for cutting the crop. They stayed in the house of Birbal for arranging water supply to their field as per their turn. After availing the turn, they returned to Karanpur. Accused Suresh stayed back in the field. On 15.11.1994 in the morning at 8 O''Clock he went to the field 52 N.P. Suresh was cutting the crop. He also joined him. Both of them collected the ''Gwar''. At about 11:00 deceased Bhagirath and P.W. 3 Banwarilal arrived. They objected cutting the crop in Kila Nos. 8 to 23. They claimed to reap the crop on the ground that it was sown by them. They were armed with Dantli and Sela. Bhagirath caught hold Suresh by hair. They grappled and a quarrel ensued between them. Both the parties received injuries. He also stated that the land was distributed in three persons i.e. Kila No. 1 to 8 in the name of Bhagirath and rest of the land of Kila No. 9 to 25 in his own and in the name of Suresh. He also stated that the land was entered in the joint name of all the three. The defence examined five witnesses in support of the case. The trial court analysing the evidence held that the appellants aggressors and found the charges proved. The learned Judge convicted and sentenced the appellants as noticed above.

It is contended by Mr. H.S.S. Kharlia learned Counsel for the appellants that the trial court has committed an error in convicting the appellants solely on the testimony of highly interested and partisan witness namely P.W. 3 Banwarilal. It is also submitted that the defence version is more probable, as prosecution has failed to explain injuries on the person of the complainant party. It is pointed out that appellant Om Prakash has received as many as six grievous injuries. On the other hand, the learned Public Prosecutor has supported the judgment of the trial court.

We have considered the rival contentions and perused the record carefully. The case rests mainly on the testimony of P.W. 3 Banwari Lal. He is the son of deceased Bhagirath. He has reiterated what he has spoken in F.I.R. In the cross-examination, he admitted that in the Jamabandi Ex.D-1 the land has been entered in the joint name of Bhagirath, Prithviraj and Amarchand as Gair Khatedars. He also stated that there is a suit pending in the court of Sub-Divisional Officer with respect to the said land. He also stated that his uncle Prithviraj has died. He also admitted that there has not been any partition of the said land. However he asserted that the land in dispute is in their possession. He denied the suggestion that a quarrel had taken place with respect to the cutting of ''Gwar'' crop.

P.W. 12 Dr. Subhash Gupta has stated that he examined P.W. 3 Banwarilal and noticed the following injuries:

(1) Incised wound 2.5 cm x 0.5 cm x 2.5 cm- post auxilliary line below axilla on left side of chest.

(2) Incised wound-1 cm x 0.2 cm x 0.5 cm- Rt. side of chest 9 cm. above nipple.

(3) Incised wound 1 cm x 0.5 cm x 0.3 cm-At thyroid cartilage.

(4) Incised wound 2.5 cm x 0.4 cm x 0.5 cm just above left eye brow.

(5) Incised wound 1 cm x 0.2 cm x 0.5 cm - just towards Rt.eye brow.

(6) Incised wound 4 cm x 1 cm x 2 cm - Rt. axilla.

(7) Incised wound 1 cm x 0.3 x 0.5 cm - left ear lobula.

(8) Incised wound 2.5 cm x 0.4 cm x 0.3 cm - left ext. ear in the middle.

(9) Lacerated wound 4 cm x 0.2 cm x 0.1cm - In the middle of nose.

(10) Lacerated wound 2 cm x 0.1 cm x 0.1cm Left side of nose.

(11) Lacerated wound 1 cm x 0.1cm x 0.1 cm Dorsal aspect of proximal phalanx of left index finger.

(12) Lacerated wound 0.7 cm x 0.2 cm x 0.5 cm left side of ala of nose.

(13) Lacerated wound 0.5 cm x 0.1 cm x 0.1 cm Rt. upper eye lid.

(14) Abrasion 4 cm x 0.3 cm on left side of upper l/3rd of chest.

(15) Abrasion 2 cm x 0.4 cm in the middle of back of chest.

(16) Incised wound 3.5 cm x 1.5 cm x 0.7cm Rt. arm laterally.

(17) Lacerated wound 1.2 cm x 0.5 cm x muscle Deep Rt. inquinal region.

(18) Lacerated wound 0.5 cm x 0.5 cm x muscle deep ant. aspect of upper l/3rd of left thigh.

(19) Abrasion 3 cm x 1 cm upper liuth of left arm.

(20) Abrasion 2.8 cm x 1cm Left arm 2cm below injury No. 19.

(21) Abrasion 2 cm x 1 cm middle l/3rd of left arm.

(22) Abrasion 5 cm x 1 cm lower l/3rd of left arm.

He has proved the injury report Ex.P. 43. He stated that the injuries No. 1 to 8 and injury No. 16 were caused by a sharp edged weapon. Injuries No. 9 to 15 and 17 to 22 were caused by blunt object. On radiological examination injury No. 9 was found to be grievous. Rest of the injuries were simple in nature caused by sharp and blunt object.

He also stated that he conducted the post-mortem of the dead body of Bhagirath and noticed the following injuries:

(1) Incised wound 17 cm x 6 cm x 12 cm extending from left side of neck going to occipital region.

(2) Incised wound 9 cm x 3 cm x 2 cm left scapular region.

(3) Incised wound 6.5 cm x 1 cm x 3 cm Rt. side of face between nose and eye.

(4) Lacerated wound 1 cm x 0.5 cm x 0.5 cm Rt. side of neck.

(5) Lacerated wound 1 cm x 0.5 cm x 0.5 cm Left side of scrotum.

He has proved the post-mortem report Ex.P. 45. In his opinion, deceased died of shock due to multiple injuries. He also stated that on 16.11.1994, he examined injuries of accused Amarchand alias Om Prakash and noticed the following injuries:

(1) Lacerated wound 0.5 cm x 0.3 cm x 0.4 cm socket rt. upper lateral incisor.

(2) Lacerated wound 0.4 cm x 0.4 cm x 0.4 cm socket rt upper medial incisor.

(3) Lacerated wound 0.4 cm x 0.2 cm x 0.3 cm socket left medial upper incisor.

(4) Lacerated wound 0.4 cm x 0.2 cm 0.4 cm Left lateral upper incisor.

(5) Lacerated wound 0.3 cm x 0.3 cm x 0.4 cm Rt. lower medial incisor.

(6) Lacerated wound 0.4 cm x 0.2 cm x 0.3 cm Rt. lower Lat. incisor.

(7) Abrasion 2 cm x 0.1 cm ant. aspect of distil phalanx rt. index finger.

(8) Abrasion 1.6 cm x 0.1 cm middle phalanx rt. index finger.

(9) Abrasion 1 cm x 0.1 cm proximal phalnx rt. index finger.

(10) Lacerated wound 1.5 cm x 1.5 cm x 0.5 cm Rt. thumb.

He has proved the injury report Ex.P. 47. He also stated that injuries Nos. 1 to 6 were grievous in nature caused by blunt object. He further stated that on the same day he examined Suresh Kumar and noticed the following injuries:

(1) Abrasion 1 cm x 0.2 cm medial side of left eye.

He has proved the injury report Ex.P. 48. In the cross-examination, he admitted that there was no stab wound or punctured wound either on the body of Banwarilal or deceased Bhagirath.

P.W. 13 Ghanshyam Das is the Patwari. He has stated that in the year 1994, he was the Revenue Patwari of Patwar Circle, Bhompura. The area 52 N.P. was in his jurisdiction. He also stated that Murabba No. 2 in total 25 Kilas was in the joint name of Bhagirath, Prithviraj and Amarchand. He did not say anything with respect to who was the person in actual possession over the subject field. He produced Jamabandi Register of the Samvat Year 2048 to 2051. He pointed out the relevant entry at Ex.P. 49 and Ex.P. 49A. He also brought the Girdawari Register. In the said Register also the land in dispute was entered in the name of Bhagirath, Prithviraj and Amarchand.

P.W. 1 Banwarilal P.W. 2 Roop Ram have not supported the prosecution case and as such they have been declared hostile. P.W. 4 Jagga Singh is a Sepoy, who brought Banwarilal in the police jeep to the hospital. P.W. 8 Kuldeep Singh is the Photographer. The other witnesses are either Motbirs or the police witnesses with regard to the recovery of weapon of offence.

The appellants Om Prakash and Suresh Kumar have admitted their presence on the spot. They come forward with the positive case that the land in dispute was in joint possession of the deceased and both the appellants i.e. Om Prakash and Suresh Kumar. According to the appellants they sowed the crop and as such they were entitled to reap the same. It is also stated that they were cutting the crop of ''Gwar'' and it was the deceased Bhagirath and PW-3 Banwarilal who took up the quarrel. They have also stated that they grappled in which both the parties sustained injuries. It is significant to notice that the appellant Om Prakash has sustained as many as 10 injuries out of which 6 are grivous. Appellant Suresh Kumar has also sustained injury. These injuries have not been explained. The effect of non-explanation of injuries is that the prosecution has not come forward with the correct version of the incident. The unexplained injuries on the two accused creates doubt in the prosecution case. In view of this, we do not consider it to safe to uphold the conviction of the appellants on the charge of murder of Bhagirath and attempt of murder on P.W. 3 Banwarilal.

We therefore, allow this appeal and set aside the judgment dated 26.10.1999 passed by Additional Sessions Judge, Raisingh Nagar. The conviction of the appellants for offences Under Sections 302/34 and 307/34 I.P.C. is set aside. All of them are acquitted of the said offences. The appellants Om Prakash and Suresh Kumar are in Jail. They shall be released forthwith, if not required in any other case. Appellant Kishan Lal and Daleep Kumar are on bail. Their bail bonds stand discharged.