Prabhulal and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—Field bearing old Khasra No. 1205 and new Khasra No. 982 is bone of contention between complainant party and the accused appellants. Site plan (Ex. P.24) prepared by the investigating agency depict that occurrence took place in field, old Khasra No. 1205 and new Khasra No. 982. Investigating Officer, Narendra Singh (P.W.21) in cross-examination admitted to be correct that the place where occurrence took place was having old Khasra No. 1205 and new Khasra No. 982. He also admitted that this field as per revenue record was in joint Khatedari of Kanha, Prabhu and accused Shankarlal. He further stated that he had made Jamabandi part of the record during investigation. Investigating Officer admitted that over this field there was a dispute and possession was of the complainant party. Investigating Officer further admitted that accused had filed a suit for injunction praying that the complainant party be restrained not to interfere in possession of the accused and the said suit was decreed. Therefore, before we proceed with the case, we shall reproduce following portion of cross-examination of the Investigating Officer Narendra Singh (P.W.21):--

To assert possession over the field over which both the parties were having dispute, on the intervening night of 8th and 9th November, 2006 at 3.00 AM a fight took place between the parties. Accused party became better of the complainant party and in the occurrence Laxman son of Chauthmal (P.W.1) and Khatmal @ Gajanand nephew of Chauthmal (P.W.1) died. Chauthmal (P.W.1) and Shanti (P.W.12) wife of Laxman deceased also suffered injuries. In the occurrence four accused, namely Kajod, Shankarlal, Hajari and Rajaram had also suffered injuries. It will be pertinent to mention here that Kajod, Shankar and Hajari had also suffered an injury each on their head also out of number of injuries suffered by them.

On the Parcha Bayana (Ex. D.1) of Chauthmal (P.W.1) recorded by Narendra Singh (P.W.21) who was then posted as SHO, eight persons namely Prabhulal, Kajod, Kalu, Shankarlal, Nathulal, Hajari @ Foriya, Rajaram and Mahaveer were sent for trial for having caused murder of Laxman, Khatmal @ Gajanand and for causing injuries to Chauthmal (P.W.1) and Shanti (P.W.12). The Court of Additional Sessions Judge (Fast Track) No. 1, Tonk who tried all the eight persons acquitted Kalu S/o. Kanha, Nathulal S/o. Laxmi Narain and Mahaveer S/o. Sheoji Ram, but held Prabhulal S/o. Gopi, Kajod S/o. Kanha, Shankarlal S/o. Gopilal, Hajari @ Foriya S/o. Kanha and Rajaram S/o. Prabhulal guilty of offences under Section 302, 302 r.w. 149, 325, 325 r.w. 149, 323, 323 r.w. 149 and Section 147 IPC. Having convicted the accused-appellants of the above offences, the trial Judge sentenced them as under:--

"U/s. 147 IPC: One year rigorous imprisonment, to pay a fine of Rs. 500/- and in default thereof to undergo one month rigorous imprisonment.

U/s. 323, 323 r.w. 149 IPC: Six months simple imprisonment, to pay a fine of Rs. 200/- and in default thereof to undergo seven days simple imprisonment.

U/s. 325, 325 r.w. 149 IPC: Three years rigorous imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo three months rigorous imprisonment.

U/s. 302, 302 r.w. 149 IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo one year rigorous imprisonment."

Aggrieved against their conviction and sentence, accused have preferred two separate appeals. Prabhulal, Shankarlal and Rajaram have preferred D.B. Criminal Appeal No. 453/2008, whereas Kajod and his brother Hajari @ Foriya have instituted D.B. Criminal Appeal No. 879/2008. In both the appeals, five accused-appellants have questioned their conviction and have prayed that the sentence awarded be set aside and they be acquitted of the charges.

We have already noticed that the parties are at variance regarding possession over the disputed field where the occurrence had taken place. Thus, in the present appeals, following four questions arise for consideration:--

"(a). Who was in the ownership of field having old Khasra No. 1205 and new Khasra No. 982?

(b) If the ownership is held to be of the accused as to who was in possession of field bearing old Khasra No. 1205 and new Khasra No. 982?

(c). Whether the complainant party has suppressed the origin and genesis of the occurrence by not explaining the injuries caused to the accused?

(d). Whether the prosecution witnesses belonging to the complainant party are truthful or not?"

We shall make an endeavour to answer all the four questions together as these are mixed questions of fact and law.

Criminal proceedings were set into motion on the basis of Parcha Bayan (Ex. D.1) of Chauthmal (P.W.1), recorded by the Investigating Officer Narendra Singh (P.W.21). The Parcha Bayan (Ex. D.1) when translated into English reads as under:--

"Parcha Bayan Shri Chauthmal S/o. Ratna, caste Keer, age 70 years, r/o Kakod, at present admitted at Government Hospital, Tonk.

Stated that today on 9.11.2006 in the night at about 3.00 AM I was sleeping in my Badi where we had sown chillies. Suddenly a blow of lathi landed on my hand. I saw Prabhu S/o. Gopi, Rajaram S/o. Prabhu, Shankar S/o. Gopi, Kalu S/o. Kanha, Kajod S/o. Kanha, Nathu S/o. Laxminarain, Hajari S/o. Kanha, Foriya S/o. Kanha, caste Keer, r/o Kakod were standing armed with Lathis, Gandasi, Sabbal and sword. They opened an murderous assault. I raised my other hand to save myself, but injuries with lathis were caused. My both hands were fractured. Before causing me injuries, these accused in our Guwadi (courtyard in front of house) near the well had given injuries to my son Laxman, his wife Shanti Devi and my nephew Gajanand @ Khatmal. After making them unconscious they came to my Badi. The above said persons in night with intention to commit murder came on a tractor and trespassed into our field and our courtyard. We all were brought injured condition in a Jeep from Kakod to the Hospital at Tonk for treatment. During treatment, my son Laxman had died.

Sd/- Chauthmal

Sd/- SHO, P.S. Banetha, at Govt. Hospital Tonk, 9.11.06 at 9.15 AM"

On the basis of above statement (Ex. D.1), formal FIR bearing FIR No. 106/06 (Ex. P.53) was registered at Police Station Banetha, District Tonk.

Dr. B.L. Nama (P.W.6) on 9.11.2006 at 6.10 AM had medico-legally examined Laxman S/o. Chauthmal and as per injury report (Ex. P.10) had found following injuries on his person:--

"1. Lacerated wound (bleeding with abraded skin), three parallel, 1" x 1/6" x bone, 2" x 1/4" x bone, 1" x 1/6" x bone, behind right ear.

Lacerated wound through & through, 1/2" long each, right pinna upper 1/2.

Abrasion (red) 1/10" x 1/10", left thumb (dorsal).

Abrasion (red) 1/3" x 1/3", left middle finger (dorsal).

Lacerated wound (bluish) with abraded skin, two parallel gap of 1", 3 1/2" x 1/6" x bone, 2" x 1/6" x bone on scalp, antr. 2/3rd of scalp.

Abrasion (red) 3/4" x 3/4", left knee outer aspect."

Laxman died on the same morning on 9.11.2006 at Hospital and his autopsy was conducted at 10.45 AM by Dr. Arvind Luniwal (P.W.14). He had noted similar injuries in the post-mortem report (Ex. P.49). However, injury No. 1 noted in the post-mortem report was stitched wound. As per opinion of Dr. Luniwal, cause of death was head injury.

Dr. B.L. Nama (P.W.6) on the day of occurrence i.e. 9.11.2006 at 6.30 AM had also examined Gajanand @ Khatmal and as per injury report (Ex. P.11) had found following injuries on his person:--

"1. Lacerated wound bleeding (two), 2" x 1/4" x bone deep, 1 1/2" x 1/4" x bone, on left parietal region.

Bruise with swelling (red) 1" x 1/2" on left forearm middle 3rd (dorsal).

Abrasion (red) 1/2" x 1/8", left forearm above wrist (dorsal)."

Gajanand on 10.11.2006 at 2.15 AM died in the hospital and Dr. N.L. Disania (P.W.16) vide postmortem report (Ex. P.50) had conducted autopsy on the dead body of Gajanand @ Khatmal. We need not repeat the injuries. Suffice it to say that as per opinion of the Doctor, cause of death was coma due to injury caused on head.

Dr. B.L. Nama (P.W.6) on 9.11.2006 at 6.45 AM had examined Chauthmal (P.W.1) and as per injury report (Ex. P.12) had found following injuries on his person:--

"1. Swelling with deformity (red) 4" x 4", right forearm lower 2/3rd.

Lacerated wound (bluish) with swelling 1/2" x 1/3" x bone on upper 1/2 of left forearm.

Lacerated wound (bluish) with swelling 1/4" x 1/8" x bone deep, medial aspect of left hand.

Bruise with swelling 6" x 4", left leg outer aspect upper 2/3rd.

Complaint of pain tenderness of left gluteal region upper 1/2.

Bruise and swelling (red) 5" x 4", back of right side of chin upper 2/3rd."

The same Doctor on 9.11.2006 at 7.10 AM had also examined Shanti (P.W.12) and as per injury report (Ex. P.14) had found following injuries on her person:--

"1. Lacerated wound (bleeding) 2" x 1/4" x peristum deep on right parietal region.

Bruise with swelling (red) 3" x 3" Dorsal aspect of right hand.

Bruise with swelling (red) 3" x 1", left scapular region.

Bruise with swelling (red) 4" x 1", right gluteal region.

Bruise 2 1/2" x 1", right thigh dorsal, upper 1/2.

Lacerated wound with abrasion 1/3" x 1/8" on right forearm post lat. lower 1/2."

Injuries No. 1, 2, 3 and 4 on the person of Chauthmal (P.W.1) and injury No. 2 on the person of Shanti (P.W.12) were declared grievous.

On the said day, accused appellants Kajod, Shankar, Hajari and Rajaram accused had also suffered injuries.

Dr. Gyanendra Bansal (D.W.5) on 9.11.2006 at 9.30 AM had examined Kajod and as per injury report (Ex. D.13) had found following injuries on his person:--

"1. Lacerated wound 7 cm x 1 cm x sub scalp tissue deep on left parietal region.

diffuse swelling over posterio lateral aspect of left forearm lower half with tenderness.

Diffuse swelling over posterio medial aspect of right forearm lower 1/3rd part with tenderness.

Two abrasions. 1 x 1 cm, each on dorsum of right hand.

Three abrasions 1 x 1/4 cm, 1 x 1/4 cm and 3/4 x 1/4 cm on dorsum of left hand.

Three abrasions 1 x 1 cm, 3 cm x 1/4 cm and 3 1/2 cm x 1/4 cm on right side chick.

Complaint of pain over let shoulder and right knee."

All the injuries were declared simple. However, injury No. 1 was found on the head.

Dr. Gopal Saini (D.W.6) on 9.11.2006 at 10.20 AM while posted as Senior Medical Officer at Community Health Center, Uniyara had examined Shankar and as per injury report (Ex. D.14) had noted following two injuries on his person:--

"1. Lacerated wound 1 1/2" x 4 mm x sub scalp tissue on posterior part of left parieto temporal region. Margin are irregular and clotted blood is present.

Complaint of pain and tenderness on the left head of humerous but there is no external visible injury."

All the injuries were found simple.

Dr. Gopal Saini (D.W.6) had also examined Hajari on 9.11.2006 at 10.45 AM and found following injuries on his person as per injury report (Ex. D.15):--

"1. Lacerated wound of size 1 1/4" x 4 mm x sub scalp tissue deep on posterior part of left parietal bone just above the occipital region. Margin are red and inflamed and clotted blood is present there.

Abrasion of size 1/4" x 1/4" on the dorsal surface of left leg upper 1/3 part and there is radish scalp present."

Both the injuries were declared simple.

Dr. Gopal Saini (D.W.6) had also examined Rajaram on 9.11.2006 at 10.55 AM and as per injury report (Ex. D.16) had found following injuries on his person:--

"1. Bruise of size 3" x 2" on the dorsal surface of upper 1/3rd of right forearm and same is tender and radish in colour.

Abrasion of size 1/4" x 1/4" in size on the dorsolateral surface of middle phylyanx of left index of left hand and two abrasion 4 mm x 4 mm in size also be present on dorsal surface of middle and proximed phalanx of left middle finger.

Tenderness on the dorsal surface of head of left humerus.

Abrasion of size 1/4" x 1/4" on the dorsal surface of left upper 1/3rd of leg left.

Abrasion of size 3/4" x 1/2" on the left side of neck."

All the injuries on the person of Rajaram were found simple.

We may specify here that in Parcha Bayan (Ex. D.1) leading to registration of fir, no mention has been made regarding injuries caused to the accused and in court also the witnesses are silent on this count.

Prosecution in all examined five eye-witnesses. Chauthmal (P.W.1), Shanti (P.W.12) are injured eyewitnesses. Besides them, prosecution examined Kajod (P.W.2), Rajaram (P.W.9) and Smt. Panchi (P.W.17).

In court Chauthmal (P.W.1) made complete departure regarding the place where he had suffered injuries. In court this witness stated that on the night of occurrence at 3.00 AM he was sleeping in his house which is made in the fields. He was informed that accused are cultivating his field . In court, he stated that when he went to the field, accused told him not to come near to them. The witness has been confronted with his police statement leading to registration of fir wherein he stated that he was sleeping in Mirchi Wali Badi and blow was given to him. However, in court this witness stated that it has been wrongly recorded that before causing him injuries in Khasra No. 1205 his son Laxman, his wife Shanti and nephew Khatmal were given beating. On the specific suggestion put to the witness Chauthmal (P.W.1) regarding interse litigation over disputed field, he denied following material facts:--

Kajod (P.W.2) stated that on the night of occurrence, he was irrigating his field. Khatmal and Laxman came and restrained the accused and then beating was given to them, . In court he denied that the disputed field bearing Khasra No. 1205 where occurrence had taken place belonged to the accused. The witness asserted that said field belonged to Khatmal.

Shanti (P.W.12) injured wife of deceased Laxman in court admitted that the field where the occurrence took place belonged to the accused, but asserted that they were in possession of the same and on the day of occurrence they had restrained the accused not to ply the tractor in the disputed field, In examination in chief, she had stated that accused had given beating because they wanted to dispossess them as they were having possession for last 25 years,

Rajaram (P.W.9) in court stated that where the occurrence took place the land belonged to his father. He stated that he is not aware about Khasra numbers.

Panchi (P.W.17) in court stated that from a distance she saw that the accused were plying tractor and hearing voice of the tractor, they had gone to the field.

To counter the assertion made by the prosecution witnesses, accused-appellant Kajod stated in his statement recorded under Section 313 Cr.P.C. that the land belonged to them. In revenue record, it is entered being a Khatedari land. They are continuously cultivating the land. Chauthmal (P.W.1) is having no connection with the land. They had filed a suit whereby Chauthmal (P.W.1) was restrained not to cause interference with their possession. When they went to cultivate the land, then the complainant party came armed and caused them injuries. The accused further stated that he was medico-legally examined and presented copy of Jamabandi, Judgment and the Decree of the suit and copy of the fir. Exhibit-D.9 is a decree whereby qua Khasra No. 1205, the complainant party was restrained not to cause interference in the possession of the accused. Exhibit-D.10 is the copy of the judgment rendered by the Sub Divisional Officer, Uniyara. In the said judgment (Ex. D.10), an issue was framed whether the defendants to the suit i.e. the complainant party can be restrained from causing interference in the possession of the plaintiff (accused party) or not? In the judgment following finding were returned:--

Thus, so far as the revenue record, the judgment rendered by the SDO (Ex. D.10) and the decree (Ex. D.9), is concerned, the accused party were held to be in possession of the land in question. The decree was granted on 30.8.2006, i.e. 2 months and 9 days before the occurrence. Exhibit-D.11 is an application given by the accused party to the Superintendent of Police, Tonk complaining that the complainant party is picking up a fight and had threatened to cause bodily harm to the family of accused Shankar. Alongwith the application, copy of the judgment (Ex. D.10) rendered by the SDO was also annexed.

Shri Aladeen Khan, learned Public Prosecutor, has submitted that though in revenue record and in the judgment (Ex. D.10) it is reflected that the accused party was in possession, but on the spot complainant party was in uninterrupted possession of the land. To fortify his submission, Shri Khan has relied upon the assertion made by Shanti (P.W.12) in her examination-in-chief where she stated that they were in continuous possession of the land for the last 25 years. Shri Khan has submitted that instead of taking possession of the land by following due process of law accused appellants armed with judgment and decree of the revenue court, intended to dispossess the complainant party forcibly. However, on the pointed query raised by us, Shri Khan could not bring any document into our notice from where it could be inferred that the complainant party was in possession of the land. Thus, mere oral bald assertion of Shanti (P.W.12) is not fortified from any documentary evidence.

Be that as it may, a fact cannot be denied that there was dispute regarding possession over Khasra No. 1205 in which the occurrence had taken place. As per the decree (Ex. D.9) and the judgment (Ex. D.10), the complainant party had been restrained not to cause interference in possession of the accused. Admittedly, complainant party had filed no appeal against the decision and even if such an appeal was filed, same has not been brought on record. In this context, we have to take statement of the witness Shanti (P.W.12) that they were in uninterrupted possession of the land for the last 25 years, with pinch of salt as the witnesses are not coming forward with clean hands before the court. Chauthmal (P.W.1) has specifically denied any pendency of the suit or grant of decree in favour of accused appellants by the court of Sub Divisional Officer. Prosecution witnesses are in the mode of complete denial. They have denied the litigation. At least the witnesses could have said that even there was dispute and they were involved in litigation, but they were in possession of the disputed field. The witnesses ought to have stated the whole truth before the court. To this extent, credential of the witnesses are doubtful. Furthermore, there is a complete departure from initial version given in the statement (Ex. D.1). In Exhibit-D.1, Chauthmal (P.W.1) stated that he was sleeping when a blow of lathi landed on his hand and he learnt that in nearby field his son Laxman, nephew Khatmal and Shanti wife of Laxman have been injured. In court this witness stated that he was sleeping in his house when he learnt that the accused were cultivating the filed and he went to restrain them. Admittedly, the accused had entered into the field Khasra No. 1205 and had commenced cultivating the same by tractor. Thus, grievance, if any, was on the part of the complainant party and thus, they had gone to the filed to restrain the accused. We cannot believe that the complainant party had gone to the field unarmed. Four of the accused Kajod, Shankarlal, Hajari and Rajaram have suffered injuries. Kajod, Shankarlal and Hajari had also suffered injury on the head. Neither in the FIR, nor in court witnesses have offered any explanation regarding the injuries caused to the accused. They had suppressed the origin and genesis of the occurrence.

In case of Lakshmi Singh and Others Vs. State of Bihar, AIR 1976 SC 2263 : (1976) CriLJ 1736 : (1976) 4 SCC 394 : (1976) SCC(Cri) 671 , the Hon''ble Supreme Court has held as under:--

"This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975: which was also a murder case, this Court, while following an earlier case, observed as follows:

"In State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975:) one of us (Untwalia, J., speaking for the Court, observed as follows:

In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all."

The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.

It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

"(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

Having answered the questions formulated that accused were having ownership over the disputed field and there was a dispute regarding possession of the land and as per the decree (Ex. D.9) and the judgment (Ex. D.10), complainant party was restrained not to interfere in the possession of the accused and the complainant party has not explained the injuries on the person of accused and thus, have suppressed the origin and genesis of occurrence and are not completely truthful witnesses, we have now to answer whether the accused were justified to cause injuries to Chauthmal (P.W.1) and Shanti (P.W.12) and death of Laxman and Khatmal @ Gajanand. For us, the answer is that accused had exceeded the right of self defence and the case falls under Exception-II to Section 300 IPC.

Thus, we convert conviction of the accused-appellants from Section 302, 302/149 IPC to Section 304 Pt.I IPC and set aside the sentence of life imprisonment awarded by the trial court upon the appellants and sentence them to undergo ten years rigorous imprisonment. Having converted the offence from Section 302, 302/149 IPC to 304 Pt.I IPC for each accused and by setting aside sentence of life imprisonment awarded on this count, we award the sentence of ten years rigorous imprisonment to each appellant, however we maintain their conviction and sentence on other counts, as awarded by the trial court. The reduced sentence and the sentence awarded by the trial court on other counts shall run concurrently. We also maintain sentence of fine and default clause.

The appeals stand disposed of in above terms.