Raghunath @APPELLANT@Hash State of Rajasthan & Ors.

MOHAMMAD RAFIQ,J

This appeal has been preferred by eight accused-appellants namely; assailing the judgement dated 5.3.2016 passed by Additional Sessions Judge,

Sambhar Lake, Jaipur, District Jaipur in Sessions Case No.21/2011 (47/2013), who thereby convicted and sentenced the accused-appellants in the

following manner: “Offence under Section 148 IPC â€" two years simple imprisonment.

Offence under Section 323/149 â€" one year simple imprisonment.

Offence under Section 325/149 â€" five years simple imprisonment and a fine of Rs. 1000/- each; in default one months simple imprisonment.

Offence under Section 447/149 â€" three months simple imprisonment

Offence under Section 302/149 â€" life imprisonment and a fine of Rs. 5000/- each; in default six months simple imprisonment.â€​

All the sentences were ordered to run concurrently.

Facts of the case are that a written report was submitted by complainant Laxman Son of Bhura in Police Station Narena on 28.11.2010 stating that at

about 8.00 in the morning his brother Laduram, Baluram and Nathuram went to their agricultural field for sowing seeds. Suddenly, accused-appellants

came armed with `lathis’, `farsas’ in two tractors and attacked them with the intention to kill. It was stated that one tractor was of DI

Jaishree, which was driven by Ramratan. Complainant’s brothers rushed to save their life but the accused appellants hit them with tractor and

inflicted injuries. On the basis of aforesaid report, FIR No.140/10 was lodged in Police Station Narena. Out of the injured persons Nathulal died during

the pendency of the investigation. Challan for the offence under Section 147, 148, 149, 341, 323, 447, 307 and 302 IPC was filed in the competent

court, which committed the same to the Court of Additional District and Session Judge, Sanbharlake. District Jaipur. Charges for the offence under

Section 302/149, 307/149, 148, 323, 325, 447/149 IPC were framed against the accused appellants. Appellants pleaded not guilty and claimed to be

tried. Prosecution in support of its case, examined 40 witnesses and exhibited 91 documents. In its statements under Section 313 Cr.P.C. the accused

appellants denied all the allegations, which have been made against them and stated that they have been falsely implicated in the matter. Defence

examined 1 witness and exhibited 17 documents in support of its case. After hearing the prosecution and defence, the learned trial court vide its

judgment and order dated 05.03.2016 convicted the accused appellants in the manner as stated above. Hence this appeal.Â

Shri Vijay Choudhary, learned counsel for the accusedappellants has argued that the learned trial court has erred in convicting the accused-appellants

for the alleged offences even though the evidence of the prosecution does not prove the charges against the appellants on different counts beyond

reasonable doubt. Evidence of the prosecution has thus been misread. The learned trial court failed to appreciate that all the prosecution witnesses

namely; Devkaran (PW1), Dayal @ Ramdayal (PW4), Bhanwar Lal (PW6), Ladu (PW32) and Madan Lal (PW36), who have been believed to be

eye witnesses are not the eye witnesses except Ladu (PW32), who himself was injured. The testimony of all these witnesses, who are interested, has

wrongly been relied by the learned trial court. Their statements are full of contradictions and do not corroborate one another. The witnesses have

given parrot like statement where they have generally alleged that Ram Ratan and Girdhari were both driving the tractor. It is alleged that Girdhari hit

Ladu Ram from the tractor and when he fell on the ground the tractor was ran over his body and thereafter Ram Ratan hit Balu Ram by his tractor

and when Balu Ram fell on the ground, Ram Ratan ran the tractor over Balu Ram’s body. Thereafter, the witnesses again stated that Girdhari ran

the tractor over the body of Balu Ram. Learned counsel therefore submitted that most of the witnesses have alleged with regard to both deceased

Nathu and Balu Ram for causing injuries from the tractor. The prosecution witnesses have made omnibus allegations against all the accused and there

is no specific allegation against any of the accused. Learned trial court therefore could not have mechanically convicted the accused-appellants.

Learned counsel argued that it is a case of not only over implication, but also false implication, which is evident from the fact that six appellants

namely; Raghunath, Mewaram, Girdhari, Jodha, Laxman and Hari, who happened to be real brothers have all been named as accused. Thus, the

entire family has been roped in a false criminal case. It is argued that the land in dispute was actually in the possession of the accused-appellants,

which is evident from the fact that the complainant party themselves lodged FIR (Ex.P49) on 12.8.2010 alleging that the accused-party had spoiled

their harvest by running tractor over it. In that FIR, the offence of Section 447/427 IPC was made and, therefore, the charge sheet was filed under

Section 447 IPC, thus implying that the possession of the land was taken over by accused-appellants, whereas the complainant party alleged that two

agreements to sale; one dated 18th September, 2000 (Ex.P49A) and another undated (Ex.P49B) were executed in favour of Ladu. Though accused

were in possession, but even if it is assumed that complainant party was in possession because a recital to this fact is there in both the agreements that

possession was handed over, it is evident from the statement of Ladu (PW32), that they were not sure as to which part of the land of the appellants

was sold to Ladu Ram. He has stated that there is no mention of the fact in either of the agreements that the land situated on the southern side of the

entire chunk of land was agreed to be sold to Ladu Ram. In this scenario, it is not evidently clear that the agreement to sale was executed for sale of

the land which the complainant party claimed to be in their possession.

Learned counsel argued that the possession if at all was handed over to appellants, it does not remain continuous and uninterrupted and at least in the

year 2010 when the charge sheet against the accused party was filed for offence u/s.447 IPC, it was the case of the complainant party that they have

been divested from the possession and possession came to be restored to the accused-party. Learned counsel has referred to the injunction order

dated 23.8.2010 (Ex.D16) passed by SDO, Dudu in revenue suit passing ex-parte order on the application u/s.212 of the Rajasthan Tenancy Act. The

trial court also failed to appreciate that the members of the complainant party were bound down to maintain peace and good conduct in the

proceedings initiated at the instance of the accused-party under Section 107 and 116 Cr.P.C.

Learned counsel argued that the accused-appellant Hari himself sustained four injuries, which is evident from his MLR (Ex.D5). Two of these injuries

were fractures and, therefore, were grievous injuries. Accused-appellant Raghunath at whose instance the Investigating Officer has shown recovery

of `kulhari’, himself sustained six injuries vide Ex.D14, one of which was grievous injury as fracture. The prosecution failed to give any

explanation to these injuries and thus suppressed the genesis of the incident. Even though the cross FIR was lodged by the accused-party, the police

has submitted negative final report therein. It is argued that while in the FIR (Ex.P18), the `kulhari’ (axe) allegedly recovered at the instance of

Raghunath, was found to contain human blood, but no blood was detected from the `lakris’ recovered at the instance of Chhota, Laxman,

Girdhari and Meva. `Lakri’, is very commonly found in the agriculture field of the farmers and, therefore, it cannot be considered as a deadly

weapon.

Learned counsel argued that the statement of deceased Nathu and Balu, both recorded under Section 161 Cr.P.C. by the Investigating Officer on

2.12.2010 cannot be read as dying declaration and, therefore, the argument of the learned Public Prosecutor to that effect is wholly misconceived. In

any case, the incident in the present case has taken place on 28.11.2010, whereas Balu Ram died five months after the incident on 20th April, 2011.

Therefore, as would be evident from the postmortem report (Ex.P4), it cannot be said that the injuries that he sustained were the direct result of his

death. In any case, he died because he was not provided proper treatment timely. Referring to the statement of Dr. Mahendra Kumar Agrawal

(PW3) and postmortem report of Balu (Ex.P4), the cause of death of Balu was malnourishment associated with anemia as also Gagarin and

septicemic shock. The primary cause of death was therefore not the injuries allegedly attributed to him at the hands of the accused in the incident and,

therefore, the accused-appellants could not have been convicted for the alleged offences. The postmortem report of Nathu (Ex.P63) proved by Dr.

Deepali Pathak (PW22) though indicated that the cause of death was shock brought about as a result of antemortem injury no.1 to cervical spine, but

he too survived for as long as eight days. All other injuries sustained by him were inconsequential and, therefore, it cannot be inferred that the accused

had the intention to cause his death. In any case, it was a free fight where both parties sustained injuries and, therefore, each accused would be

responsible for his individual act. The other accused cannot be vicariously held responsible for the act of one another. Learned counsel in support of

his arguments has relied on judgement of the Supreme Court in Ram Rattan & Ors. vs. State of Uttar Pradesh-(1977) 1 SCC 188. It is therefore

prayed that the appeal be allowed and the accusedappellants be acquitted of the charges.

Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and supported the impugned judgement. He submitted that earlier FIR No.83/2010 in

which charge sheet u/s.447 IPC was filed against the accused, did not allege that the accused had dispossessed / evicted the complainant party of the

dispute land. Possession of the disputed land was handed over to the complainant party when two agreements to sale, one dated 18th September, 2000

(Ex.P49A) and then another undated (Ex.P49B) were executed in favour of Ladu Ram by the accused-party. These agreement had a recital to the

fact that the possession of the land was also handed over to the complainant party. Since then they remained in cultivatory possession of the land and

were never divested from the possession. The ex-parte injunction order dated 23.8.2010 passed by SDO, Dudu relied by the defence, which is on

record at Ex.D16, regarding possession of the accused-party, does not show as to what happened to that ex-parte injunction order after the service

was effected on the complainant party. In any case, the learned trial court was perfectly justified in recording a finding of possession in favour of the

complainant party and thereafter, not accepting the defence of right of private defence set up by the accused-party. It is argued that even if the

learned trial court has not read and relied the statement of two deceased namely; Nathu and Balu, recorded u/s.161 Cr.P.C. on the third day of

incident as oral dying declaration, this Court in exercise of appellate jurisdiction under Section 374 Cr.P.C. would have ample power to do so.

Learned Public Prosecutor submitted that not only two tractors were recovered at the instance of Girdhari and Ram Ratan respectively, but a

`kulhari’ has also been recovered from Raghunath, which was per the FSL report (Ex.P89) found to contain human blood. In the process of

incident, if two accusedappellants had sustained simple injuries, these being inconsequential, it cannot be therefore said that the prosecution has

withheld the genesis of the incident. Learned Public Prosecutor therefore submitted that the appeal be dismissed.

The earliest version which the complainant gave in the written report that formed basis for lodgement of the first information report is that when Ladu,

Balu Ram and Nathu Ram went to the disputed agriculture field for cultivation, Ram Ratan, Raghunath, Meva, Hari, Girdhari, Laxman, Jodha and Lala

S/o Raghunath came there in two tractors. They were armed with `lathis’ and `farsis’ and attacked Ladu Ram, Balu Ram and Nathu Ram

with the intention to commit their murder. While one tractor was being driven by Ram Ratan. Raghunath was driving another tractor. They chased

members of the complainant party, who ran to save themselves. On being hit by tractor, Balu sustained fracture of leg and ribs. Ladu sustained injury

on his head and his hand and leg were broken. Nathu also sustained fracture of hand and ribs. Dev Karan, Madan and Bhanwar rushed there to save

them. The incident apparently took place on 28.11.2010 and the police statement of deceased as also most of the eye witnesses were recorded on

2.12.2010. Not only the two deceased Balu and Nathu gave their statement, but the police statement of injured Ladu was also recorded, who

maintained the same version while appearing in witness box as PW32. He has stated in the Court that he purchased a piece of land measuring 5

bighas from the accused party on the basis of agreement to sale at the rate of Rs.15,000 per bigha about 14 years ago. Another piece of land was

purchased subsequently at the rate of Rs.20,000 per bigha. Both agreements to sale were separately executed on the requisite stamp paper. He

insisted upon the members of the accused party to get the sale deed registered in their favour, but they kept on avoiding. Once in 2010, the accused

had destroyed their harvest with regard to which FIR was registered against them. Police filed charge sheet in that case against the accused-party.

Another incident took place on 28.11.2010 when the accused came to their agriculture field. Ram Ratan was driving one tractor and Girdhari was

driving another tractor. At that time he (Ladu) was cultivating his field by his tractor, which was being driven by his younger brother Dayal. The

tractor, which was being driven by Ram Ratan belonged to Raghunath and he was also with him. Meva, Jodha, Laxman and Mangal also

accompanied him. Mangal is also known as Lala. Ram Ratan and Girdhari were also there. Thus they were in total 8 persons. These persons upon

arriving, abused the complainant party and attacked them with tractors and `lathis’. Girdhari hit him (Ladu) with tractor, as a result of which, he

fell on the ground. Thereafter, other accused started beating him by `lathis’. Girdhari ran the wheel of the tractor over his (Ladu’s) left thigh.

Balu and Nathu were the neighbours of their agriculture field. When they came there to save them, Ram Ratan and Girdhari gave `lalkara’ that

even these persons be also killed. Accused then attacked them also with `lathis’. Girdhari hit Balu by tractor. Thereafter, Ram Ratan and Girdhari

hit this witness also by tractor, as a result of which, he fell on the ground. Thereafter they ran the tractor after him in a circle and hit him, as a result of

which, he fell on the ground. Madan, Ram Lal and Bhanwar also then reached there to save him. The accused threatened them also with dire

consequences and ran the tractor behind them too. They saved themselves by jumping into the nearby pond of water.

Devkaran (PW1) is another eye witnesses, who has substantially supported the statement of Ladu (PW32). He has stated that Mangal, Jodha and

Laxman were sitting on the tractor, driven by Ram Ratan. Raghunath, Mohan and Hari were sitting on another tractor, which was driven by Girdhari.

Then Girdhari hit Ladu with his tractor, as a result of which he fell on the ground and thereafter Raghunath, Hari and Meva gave beating to him by

`lathis’. While Raghunath had `kulhari’, Meva and Hari had `lakris’. When Nathu and Balu came rushing there to save them, Ram Ratan,

who was driving another tractor, hit them, as a result of which, both fell on the ground. Thereafter, Jodha, Mangal and Laxman subjected them to

beating. While Mangal had `kulhari’, Jodha and Laxman had `lakris’. Substantially, the same statement has been given by Dayal @ Ramdayal

(PW4), who at that time was also present on the disputed agriculture field and was cultivating the same by tractor. The statement of Bhanwar Lal

(PW6) and Madan Lal (PW36) were also to the same effect. We see no reason not to read as dying declaration the statements of deceased Nathu

u/s.161 Cr.P.C. (Ex.P90) by Investigating Officer and another of deceased Balu (Ex.P91), both recorded on 2.12.2010 i.e. within ten days of the

incident. That was the time when the fresh and inordinate version of the manner in which the incident took place would be given by complainant party.

Their version is also substantially same and provide corroboration and lend credence to what has been stated by the other eye witnesses. Nathu Ram

expired on 6.12.2010. His MLR is Ex.P69, according to which he sustained four injuries, out of which injury no.1 was proved fatal. His postmortem

report (Ex.P63) has been proved by Dr. Deepali Pathak (PW22). She has stated that on dissection of the body, it was found that deceased has

sustained fracture of sixth cervical vertebra and seventh vertebra was displaced and there was swelling in the spinal cord from bottom to top. Injury

no.2 resulted into fracture of metacarpal bone of right hand. Injury no.3 was multiple abrasions on both shoulders, left knee, left hip and outer and right

side of the stomach. There were bruises on the left shoulder. The cause of death was opined to be shock brought about as a result of antemortem

injury no.1 to cervical spine. The injury report of Balu Ram is Ex.P68, according to which he sustained three injuries. Injury no.1 is pain and swelling

at left thigh, injury no.2 is lacerated wound at right leg about 5 cm x 1 cm x 5 cm deep with swelling and injury no.3 is pain and swelling on the chest.

Dr. Ashok Khandelwal (PW27) has proved the injury report of Balu Ram, according to him, regarding injury no.1, as per x-ray plate no.53 dated

7.2.2011, a fracture was found. The surgery was conducted on the person of Balu Ram, but thereafter also, plates were found visible. That injury was

grievous in nature. As regards injury no.2, after x-ray, left side sixth bone (rib) was found fractured, which injury was of grievous nature. Regarding

injury no.3, bolts were fitted in his thigh bone during operation, which were clearly visible in x-ray plate examination. Balu Ram died on 20.4.2011.

His postmortem report is Ex.P4, which has been proved by Dr. Mahendra Kumar Agarwal (PW3). Even though in the postmortem report (Ex.P4),

multiple reasons have been given by the Doctor as to the cause of his death namely; malnourishment associated with anemia as also Gagarin and

septicemic shock, but it is clearly evident that this man sustained the tractor of thigh bone and also sixth rib.  Â

The injury report of injured Laduram is Ex.P70, has also been proved by Dr. Ashok Kumar Khandelwal (PW27), who has stated that regarding injury

no.1 regarding fracture of left thigh bone, on examination of x-ray plates, he found plates visible even after surgery though his other injuries were

simple in nature.

In the light of the fact that two of the accused have also sustained injuries, wherefor no explanation has been given by the prosecution, but then, we

are not inclined to uphold the argument of the accused that they were entitled to exercise right of private defence for the reason of injuries sustained

by them.Â

Apart from the direct and specific role assigned to Girdhari and Ram Ratan that both crushed the deceased Nathu and Balu & injured Laduram by

tractor, omnibus allegations have been made against all other accused of causing injuries to the deceased by `lathis’ except against accused

Raghunath and Lala @ Mangal Chand of causing injury by `kulhari’. While `kulhari’ has been recovered at the instance of Lala @ Mangal,

`kulhari’ has indeed been recovered at the instance of Raghunath. Though there were allegations against him of causing injuries by `kulhari’ to

deceased Nathu, but that injury has been opined to be simple in nature. The other accused may have caused injuries to both the deceased and also the

injured, but looking at the overall number and nature of injuries, it cannot be said that these accused shared intention with Girdhari and Ram Ratan of

committing murder of deceased Nathu and Balu. They, while driving the tractor on the spot developed the common object of committing murder of the

deceased, but the other accused, namely; Mewaram, Jodha, Laxman and Hari who were on the ground, having mostly `lathis’ did not share

common object with them and, therefore, the intention of murder cannot be attributed to them. However, Girdhari and Ram Ratan would be jointly

responsible for having common intention of committing murder of deceased and not the other accused. Although, they may be having intention of

causing such injuries to the deceased and the injured as may ensure their eviction from the disputed agriculture land, which essentially the common

object of the accused. The evidence thus clearly show that accused Girdhari and Ram Ratan exceeded the common object by repeatedly hitting two

deceased Nathu and Balu and injured Ladu by tractor and causing such injuries, which led to the death of two persons. While we are inclined to

maintain the conviction of all accusedappellants namely; Raghunath, Mewaram, Girdhari, Jodha, Ramkaran, Laxman, Lala @ Mangalchand and Hari

for offence under Sections 148, 323/149, 325/149, 447/149, the conviction of accused-appellants for offence u/s.302/149 is set aside. The conviction of

accused-appellants Raghunath, Mewaram, Jodha, Laxman, Lala @ Mangalchand and Hari for offence under Section u/s.302/149 is set aside.

However, their conviction for offence u/ss.148, 323/149, 325/149, 447/149 is maintained and they are sentenced to the period already undergone by

them. The conviction of accused-appellants Girdhari and Ramratan for offence u/ss.148, 323/149, 325/149, 447/149 is maintained, however, their

conviction offence u/s.302/149 is set aside, however, instead they are convicted for offence u/s.302/34 IPC and sentenced to life imprisonment with

fine of Rs.5,000, in default of which, each one of them to further undergo simple imprisonment of six months. The impugned judgement is accordingly

modified.

The appeal is allowed in part.