Rajendra and Others vs State of Rajasthan

B. Prasad, J.—The present appeal is filed by eight appellants namely Rajendra alias Raju Anil Kumar, Chander Pal, Sahi Ram Suresh Kumar, Rajesh, Smt. Kamlesh and Smt. Vidhya being aggrieved by the decision of the Court of Addl. District & Sessions Judge, Rajgarh in Sessions Case No. 27/96 dated 17-5-2001. By the impugned judgment the learned trial Court has convicted and sentenced the accused appellants as under :

------------------------------------------------------------------------------ OFFENCE u/s ACCUSED PERSONS SENTENCE FINE IN DEFAULT OF FINE ------------------------------------------------------------------------------ 148 IPC All the accused 1 Year''s - - persons R.I. 302/149 IPC "Life 5000/- Six Months R.I. Imprisonment 307, 307/149 IPC "5 Years R.I. 2000/- 2 Months R.I. ------------------------------------------------------------------------------

The prosecution was initiated on the basis of FIR which was lodged by injured Gopal Ram at Police Station, Hamirvas. On the basis of statement given by injured Gopal Ram, Criminal Case No. 164-/97 was registered at Police Station, Hamirvas and investigation was conducted. Charge sheet was submitted before the committal Court and after commitment case came before the trial Court for trial. Charges were framed against the accused persons under Sections 148, 302/149; 307/149, I.P.C. Charge sheet, was filed against the six accused persons only and two accused appellants Smt. Kamlesh and Smt. Vidhya were not found guilty by the Investigating Agency. On the framed charges against the challan accused trial proceeded.

At the trial, after recording of the statement of witnesses, an application dated 24-4-99 was moved on behalf of the prosecution u/s 319, Cr. P.C. The application was accepted by the order of the trial Court dated 5-6-99 and accused Smt. Kamlesh and Smt. Vidhya were also considered to be impleaded as accused. After these accused persons were added as accused, statements of witnesses were again recorded at the trial. In all, prosecution examined 23 witnesses and tendered 83 documents in evidence. The accused were examined u/s 313, Cr. P.C. They denied the prosecution case. Eight witnesses were examined in defence and 13 documents were exhibited.

The trial Court after considering the case of the prosecution came to the conclusion that the defence as produced, is not tenable. The plea of alibi is not sustainable. That has been found to be false. The trial Court has considered the arguments of defence regarding FIR. The First. Information Report as considered by the Investigating Agency, based on the statement of injured Gopal Ram, has been found to be the real First Information Report. Prior to that, only a cursory report was lodged, without disclosing complete facts. According to the trial Court unless a report contains basic facts required to describe an offence, it cannot be considered as a report disclosing facts necessary to constitute a cognizable offence. The trial Court has also not accepted the defence version that there was an attempt to implicate the whole family as Sheodutt Flam was though named in the First Information Report has not been impleaded as an accused at the trial. The trial Court came to the conclusion that if First Information Report and the testimony of the witnesses if examined then it does not appear that the Sheodutt Ram was the accused. By an attempt of naming him in First Information Report it cannot be said that there was a deliberate attempt on the part of the prosecution to implicate the whole family. Because Sheodutt Ram was not an accused charge sheeted or tried though named, do not travel to a great length.

Trial Court considered that 15-20 days prior to the actual incident, there was some quarrel between the family of accused party and the family of the injured party. The family got divided in two groups. One group was of the family of Sheodutt Ram and Sahi Ram. Chandgi Ram''s family formed the other group. On the day of incident, wife of Chandgi Ram Smt. Om Prakashi was assaulted by the a member of accused party. Raju alias Rajendra was alleged to be the person involved in that incident. The details of this incident was given to Gopal Ram and Shai Ram by Om Prakashi. Chandgi Ram wanted to resolve the matter in presence of the villagers and therefore, he called prominent persons of the village namely Satveer s/o. Ramchander, Ransingh s/o. Gopal Ram and Lal Chand Beniwal. Sheodutt Ram was also called. He did not accept the mistake of his son Rajendra. On the contrary, Sheodutt Ram asserted that no such occurrence as alleged has taken place involving his son Rajendra.

The accused persons keeping in view their objective that Chandgi Rani''s family have got to be given a lesson made preparation. They saw Gopal Ram going in the lane, he was unarmed. He was attacked by lethal weapon like farsi, axe, barchi and lathi. The natural version of this incident has been given in the first information. According to the learned Judge Rajendra started causing injury to Gopal Ram by barchi and then Suresh caused injury to Gopal at that time, two brothers of Gopal Ram, Satveer and Dhanpat came to rescue him. The attention of the accused got diverted towards Satveer and Dhanpat as member of the family of Chandgi Ram. The accused also wanted to give a lesson to these persons. The accused started assaulting these two interveners. Dhanpat having sustained injury fell on the way. Satveer in order to save himself tried to enter in the court yard of Ramji Lal. He did not succeed, as Gopal Ram had already entered into that court yard and took shelter by closing the door. He tried to enter the house of Balbir but that too was not available being closed. In the helpless condition, he returned back to the court yard there the accused reached with their weapon and caused injuries. In this sequence Dhanpal sustained 15 injuries. Satveer sustained 14 injuries. According to the doctor, Satveer succumbed to the injuries at the scene of occurrence and Dhanpat died at the hospital.

According to the doctor, the death of two deceased was due to injuries sustained by them. Gopal Ram sustained four injuries. Out of which, two were incised wounds and two were lacerated wounds. None of the bones of this witnesses was fractured. Injuries were on non-vital parts. The trial Court has found that if Dhanpat and Satveer would have not come to rescue Gopal Ram, then he would have died clue the assault, which was made on him. But by intervention of Satveer and Dhanpat he got saved. Therefore, according to trial Court the offence u/s 307, I. P. C. is also made out against the accused persons for trying to kill Gopal Ram.

The trial Court has also rejected the theory of self defence wherein Chandrapal and Rajendra have sustained minor injuries. According to the learned Judge the accused have been medically examined for these injuries by doctor. The matter was not reported to police. The learned trial Court has expressed that, possibility cannot be ruled out wherein the accused could have self inflicted these injuries to establish their right of private defence.

The trial Court has also discarded the statement of the defence witnesses. The right of private defence as canvassed by D. W. 3 Ummed Singh has not been found correct by the trial Court. The trial Court has also taken note of the fact, that accused has caused injuries to Gopal Ram. Dhanpat and Satveer. In this process it was not possible for the witnesses to describe as to who was responsible for which specific injury of the injured and deceased. It is a difficult preposition to identify a particular accused for causing a particular injury. The trial Court has also considered the fact that P. W. 6 Smt. Tarkeshvari, P. W. 10 Balbir, P. W. 11 Smt. Savitri, P. W. 1 Jai Narain, and P. W. 15 Malkan Singh though have turned hostile but merely because these witnesses have turned hostile the prosecution case cannot be discarded. According to the trial Court the parties were closely known to each other and in this background if any other person was involved witnesses would have definitely spoken about him. The trial Court has come to the conclusion that all the accused persons has participated in the incident. The defence plea of alibi has not found favour. It has also been found that the prosecution case is proved against the accused persons with the aid of Section 149, I. P. C. All the accused sharing the common object have participated in the incident.

Learned Counsel for the appellant urged that prosecution is basically based on the testimony of eye witnesses. According to the learned Counsel for the appellant none of the witnesses as has been relied upon by the trial Court are worthy of credence. Assailing the testimony of P. W. 1 Jai Narain learned Counsel for the appellant submitted that this witness in his statement states that while he was returning from his field when he reached near the house of Ramjilal, he saw that the accused persons were armed with different weapons. All the accused persons were assaulting Dhanpat, Dhanpat was lying on the ground and he was being given merciless beating. Thereafter, the accused pursued deceased Satveer and injured Gopal. Gopal entered into the house of Ramjilal. Satveer entered into the house of Mehetab Singh. All the accused followed him there and surrounding him, they gave injuries to Satveer thereafter this witness states that Gopal came out of the house where he had gone earlier, he saw at that point of time that he had injuries on his left side of the body and on the head. Learned Counsel for the appellant assailing the testimony of this witness stated that the prosecution story as narrated in the First Information Report goes to show that the assault was started by the accused persons by first be-labouring injured Gopal. It was only after causing injuries to the injured Gopal that deceased Satveer and Dhanpat arrived on the scene of occurrence to rescue Gopal. When these two persons intervened accused persons assaulted them. The story given by the injured witness Gopal in the First Information Report is not in the sequence in which P. W. 1 Jai Narain describes the incident and therefore, version of P. W. 1 Jai Narain is not in conformity with the version given by the injured Gopal.

According to witness P. W. 1 Jai Narain he first saw the accused assaulting Dhanpat then he saw Satveer and Gopal at that time, injuries of Gopal had not been described by him. When Gopal subsequently appeared then this witness had noticed injuries on his person. This is not the prosecution version as given by the injured first informant P. W. 2 Gopal in his statement of the First Information Report. Thus this witness has tried to give a version which is not in conformity with the prosecution case itself. Learned Counsel for the appellant further stressed that this witness has not known the identity of two lady accused persons Smt. Vidhya and Smt. Kamlesh. He says that his wife informed him about these two ladies but in his police statement he has not given these details. Though in his police statement Ex. D-1 these details are not there, he claims that he had informed police about it. His police statement Ex. D-1 also omits to make a mention that all the accused persons were assaulting Dhanpat when he reached near the house of Ramjilal. Thus, there is a significant omission in the statement of this witness regarding the participation of all the accused persons qua Dhanpat.

According to this witness in cross examination when deceased Dhanpat was being assaulted by the accused then Gopal and Satveer came. When they saw Dhanpat in injured condition they got threatened, and rushed towards the house of Ramjilal. He further asserts that when Satveer and Dhanpat wanted to escape, the accused followed them. Learned Counsel for the appellant further stressed that this witness claims to have seen the assault for the first time when he was around 200-300 pawandas away where he heard the cries. This makes a distance of his presence when he heard shouts around 1000-1500 ft. He claims that he saw the accused from 15 pawandas meaning thereby he took time to travel once 185 pawandas to 285 pawandas i.e. quite a distance and, therefore, it was not possible for him to see the actual occurrence. That speaks for his claim in the police statement Ex. D-1 that Dhanpat fell down by ''Dhakka-Mukki''. He disowns this portion of police statement as given in Ex. D1. He further stated in his cross examination that when he left the scene of occurrence thereafter till the date of his examination police has not met him. If this statement of this witness is true then there was no question of this witness being examined by police. His statement Ex. D-1 is thus a concoction of the police.

According to the learned Counsel for the appellant, statement of this prosecution witness was recorded in Court again after the inclusion of accused Smt. Vidhya and Smt. Kamlesh. In his second statement he states that while he reached near the house of Ramjilal, he saw that the accused were assaulting Dhanpat and Satveer. Dhanpat was drenched in blood. They followed Satveer, when he entered in the house of Mehetab. In second examination-in-chief he omits stating about injuries of Gopal. Rather the interesting feature is that in his examination-in-chief he has not even spoken a word about the presence of Gopal while the assault was being (sic) by the accused. This shows the fickleness of mind of this witness. He wants that his version should be accepted notwithstanding the fact that it suffers from inherent weakness. He disowns his police statement wherein he had stated accused Rajesh had lathi in his hand. He further disowns his police statement alleging that the deceased Satveer and Dhanpat had lathies. In court he states that they never had any arm. Thus, learned Counsel for the appellant emphasises that this witness has given entirely new version of the prosecution story which is not in conformity with the prosecution case as made out in Ex. P-65, FIR. It is not open to the prosecution to make out a case which is different from the original version. So much so that this witness has omitted the name of injured Gopal in his second statement. According to first information report the assault was started with the hitting of Gopal. First Gopal was beaten up by the accused person. The story of beating of Gopal is not spoken by this witness in his second court statement. In first statement he states that Gopal was beaten after Satveer was assaulted. The evidence of the witness is of no consequence because he has the tendency of changing his version.

This witness has claimed to be at a distance of 1000-1500 ft. when he is alleged to have heard the cries. Then he says that he saw the occurrence from 15 pawandas i.e. About 75 ft. It is impossible that at a distance of 1000-1500 ft. he could hear the cries. Thereafter he claims to have traveled a distance of about 1000 to 1500 ft. after hearing the cries. Because he says that he saw occurrence from 15 pawandas. He has traveled 185 to 285 pawandas thereafter he saw the assault. It sounds to be a difficult proposition. This witness also disowns his earlier police statement. Thus, according to learned Counsel for the appellant this witness is not worthy of credence.

Learned Counsel for the appellant then stressed that injured eye witness Gopal also falls in the same category that of P. W. 1 Jai Narain. According to this injured eyewitness while he had gone for getting wheat floor made he was confronted with the accused persons. They assaulted him with an intention of finishing him. He only sustained four injuries, the nature of injuries is not of serious nature. When Satveer and Dhanpat intervened then he was left and they were belaboured and done to death. Learned Counsel for the appellant stressed that having started assault with Gopal it would not be possible to divert to other interveners. In fact Gopal was the first target. If he has been let off with four insignificant injuries only then the version given by the prosecution cannot be said to be one which is correct. Here learned Counsel for the appellant emphasises that there are injuries on the person of the accused persons.

According to witness P. W. 2 Gopal the injuries sustained by the accused were not inflicted by them. It does not appear to be a probability. This witness further pleads ignorance about the nature of injuries sustained by Dhanpat. He admits that he cannot tell as to who caused injuries to him. Similarly, he has not described the manner in which Satveer has sustained injuries. According to this witness in his second statement when Satveer and Dhanpat joined and accused started assaulting, he ran away and he saw the accused assaulting these persons when he turned around and saw the incident. He claimed that at that time he saw witnesses Jai Narain and Mehetab standing there.

He gives the occurrence time only for two-three minutes. 2-3 minutes is too small a time to permit the other witness to see the incident. He states that after he sustained injuries and he ran away and he entered into house of Ramjilal. He also closed the door. It is unbelievable that after entering into the house of Ramjilal this witness could see the actual assault. This witness is not supported by P. W. 1 Jai Narain in details given by him regarding the incident. He establishes the presence of witness P. W. 1 Jai Narain who according to the learned Counsel for the appellant was not an eyewitness. This witness has the tendency of introducing false eye witnesses. It is very dangerous proposition.

Apart from introducing Jai Narain as an eye-witness, he claims that Mehetab was also there. If the prosecution names a false witness as an eye-witness then it stands condoned. If such witness does not support the prosecution case then prosecution stands condoned. P. W. 19 Mehetab Singh having not supported the prosecution there is no corroboration of the facts as narrated by the prosecution witness P. W. 2 Gopal. As prosecution witnesses P. W. 19 Mehetab Singh and P. W. 1 Jai Narain are not worthy of any credence in absence of any corroboration available of the testimony of P. W. 2 Gopal who remains to be the only eye-witness of the incident. The Court will certainly look for independent corroboration more particularly when it is found that the accused themselves have sustained the injuries and prosecution refuses to owe responsibility for these injuries.

It can be said that when there is an incident of causing injuries to P. W. 2 Gopal, Satveer and Dhanpat intervened with arm as admitted by P. W. 1 Jai Narain before police in his statement Ex. D-1, then it becomes a case where both the parties assaulted each other. If it was a case where both the parties took law in their hand then it was a case of free fight. Aid of Section 149, I. P. C. to import the element of common object cannot be said to be available to the prosecution to convict all the accused persons. In that eventuality individual participation will have to be looked into, which is not coming forward. Witness P. W. 2 Gopal in his cross-examination has stated that he is not in a position to state as to which of the accused caused which injury. Thus, description of the injuries is not available in the statement of the eye-witnesses. Aid of Section 149, I. P. C. is not available because both the parties assaulted each other and it is difficult to sustain the conviction as has been recorded by the trial Court.

We have considered the arguments of the learned Counsel for the appellants as well as learned Public Prosecutor and counsel for the complainant and have perused the material available on record.

The narration of facts given by the P.W. 1 Jai Narain shows that when he saw the incident, Dhanpat was the first victim. Then he saw the other two victims Gopal and Satveer. At that point of time Gopal has not been said to have any injuries. This narration of witness P. W. 1 Jai Narain does not fit in the facts as made out in the First Information Report. If Gopal was not seen by this witness in the injured condition then it can safely be concluded that he was not a witness of occurrence. According to the basic prosecution story, Gopal sustained injuries in the first place but this witness has chosen to say that when he saw Dhanpat was being beaten up then he saw Satveer and Gopal. At that point of time, Gopal had no injuries. This version cuts across claim of the prosecution that it was Gopal who was first given injuries and thereafter when Satveer and Dhanpat intervened, accused left Gopal and assaulted the other intervening two persons which is not the case deposed by this witness. His story becomes more doubtful when he states that he heard the cries at a distance of 200-300 pawandas which corresponds to 1000-1500 ft. Traveling this much of distance and then watching the actual assault does not appear to be a probable circumstance. When this improbability is examined in the background that this witness in own police statement Ex. D-1 has stated that Dhanpat fell down in ''Dhakka-Mukki''. The statement which he has disowned before the trial shows that this witness tried to make up with the prosecution case and has no regard to his earlier statement. So much so, this witness has stated that after the incident, police never met him. If this statement of this witness is true then, how his statement Ex. D-1 came on record has not been explained by this witness. Further this witness has not named Gopal, the first injured of the incident in his examination-in-chief when his statement was recorded in the Court second time. This shows that this witness had not known the actual facts of the incident. This makes his presence doubtful. This witness further resiled from his police statement wherein he assigned lathi to the accused Rajesh so also he disowned his statement that deceased Dhanpat and Satveer had lathi. In the background presence of injuries on person of the accused this denial assumes importance. Injuries to the accused thus deserve attention. If the deceased had lathi, admittedly they intervened when Gopal was being assaulted, then inference of the trial Court that injuries being insignificant, could be self inflicted, cannot be countenanced.

We are of the opinion that P. W. 1 Jai Narain is not a witness of truth. This brings us to the testimony of P.W. 2 Gopal, who is an injured eye-witness. According to this statement while he had gone to get the wheat grinded, accused persons assaulted him. Then Dhanpat and Satveer came and intervened and accused left this witness and assaulted these two persons. The pronounced intention of the accused persons from the start was to assault Gopal. Thereafter on the intervention of Dhanpat and Satveer, attention of the accused persons got diverted to these two persons.

According to P.W. 2 Gopal, when he was being beaten, Dhanpat and Satveer arrived there and then he made his escape good and he entered into the house of Ramjilal and closed the door. This shows that there was hardly any occasion available with this witness to have noticed as to how the accused persons assaulted deceased. In his statement he has stated that he is not in a position to tell as to which specific injury was caused by a particular accused. This leaves us to a point where it cannot be concluded as to who is the author of a specific injury and the case becomes in the nature of presumption that when all these accused persons were there, they must have caused the injuries. But the testimony of this witness does not lead us to any exactitude and only leaves us on a point where he states that when these two persons intervened, he made his escape good, he went into the house of Ramjilal and closed the door. From the testimony of this witness it is not possible to conclude the manner of assault by the accused persons.

Since the testimony of P.W. 2 Gopal is insufficient to throw light on the manner of assault, we are left with one pointer that when the two deceased persons Dhanpat and Satveer intervened, he was left and the accused started beating deceased. If at all any thing can be concluded by this narration then it can be said that on the spur of moment when the deceased wanted to rescue Gopal then the accused assaulted deceased. No circumstance is available indicating that the accused could form a common object at the inception to assault the deceased. Fastening of vicarious liability appears to be a remote possibility. Section 149 IPC thus cannot be imported to fasten the liabilities on the head of these accused persons.

There are injuries on the person of the accused. These injuries have not been explained by the prosecution witnesses. Prosecution witness P.W. 1 Jai Narain having stated in his police statement that the deceased had lathi in their hand had resiled from his statement. Thus how the assault started with these two deceased persons is not coming forward correctly before us. If at all any pointer is available to lead us to conclude then this shows that the deceased had intervened to rescue Gopal. If force was used by the deceased and some injuries were caused to the deceased then, case of vicarious liability cannot be construed and each accused has to be made liable for the injury which he caused. From the evidence it is not possible to conclude as to who caused particular injury. Evidence of P. W. 1 Jai Narain and P. W. 2 Gopal is not sufficient enough to particularise any of the injuries of the deceased. Case of vicarious liability is not made out. We are left in dark about the part played by a particular accused.

In view of the fact of the injuries on the accused persons there could be a right of private defence available to the accused. Particularisation of the part is not possible then fastening the liability of the accused person becomes a tough task and in this back ground it is not possible from the material available on record to establish as to which injury was caused by a particular accused. This creates doubt about the participation of all the accused persons in the manner as described by the prosecution witnesses.

P. W. 2 Gopal has tried to introduce two witnesses as eye-witnesses in the shape of P. W. 1 Jai Narain and P. W. 19 Mehetab Singh. Mehtab Singh has not supported the prosecution case. Jai Narain has been held to be a witness who is not believable by us. P. W. 2 Gopal thus falls in the category of witnesses who have tendency of importing false witnesses. Such witness can be said to be a dangerous witness and a reference in this regard be made to the observations of the Hon''ble Supreme Court in the case of Bhagwandas Vs. The State of Rajasthan, of the Judgment is quoted under for ready reference.

They also pointed out, but attached no importance, to other contradiction in the statement of Hazari made before the trial Court and before the police. If as observed by the learned Judges of the High Court, Hazari had mentioned the presence of Bega merely because the latter was to be produced as prosecution witness and because he (Hazari) had been asked to mention it, then it would detract so materially from his reliability that it would be dangerous to accept his testimony as being of any great value which is still more diminished by the finding as to the innocence of Mr. Rameshwari.

Naming of P. W. 1 Jai Narain and P.W. 19 Mehtab Singh as eye-witnesses by this witness P. W. 2 Gopal shows that the prosecution had intended to introduce eyewitness to support the prosecution case. Mehtab Singh has not supported the case of the prosecution and Jai Narain has done so falsely as held by us then it become dangerous to accept the testimony of such witness as being of any great value. The testimony of P. W. 2 Gopal thus becomes the testimony of witness insufficient to sustain the conviction of the accused persons.

In the result, we are of the opinion that testimony of P. W. 1 Jai Narain and P.W. 2 Gopal is insufficient to sustain the conviction. No other evidence is available on record warranting us to support the inference drawn by the Court below. That being the position, we are of the opinion that conviction of the accused persons u/s 302/149 IPC is not liable to be sustained. As regards, their case for assaulting Gopal, testimony of Gopal indicates that he sustained the injuries and the injuries were caused by named accused persons and the other accused persons joined him. They had intended to cause injuries to this witness.

Considering the assault on Gopal himself being deposed by the group of accused persons we are of the opinion that his testimony to that extent could not be discarded and his effort to incorporate false version in his statement about the deceased should not go to a level where those persons who are responsible for causing injuries to him go unpunished. The guidance is available from falsus in uno falsus in omnibus.

In that view of the matter, we are persuaded that the testimony of Gopal can be relied to the extent of the injuries sustained by him and assault made on him. Thus, the conviction of the accused appellants for rioting and assaulting Gopal as recorded by the trial Court is not found improper. It is held that accused persons were responsible for rioting and causing assault to this witness.

In the result, the appeal is partly allowed. The conviction of the accused persons u/s 302/149 IPC is set aside. Consequently, the sentence awarded u/s 302 read with Section 149 IPC is also set aside. Conviction of the appellants Rajendra alias Raju and Suresh under Sections 148 and 307 IPC is upheld. Conviction of appellants Anil Kumar, Chander Pal, Sahi Ram, Rajesh, Smt. Vidhya and Smt. Kamlesh under Sections 148, 307 read with Section 149 IPC is maintained. Sentences awarded to them are altered to the sentences already undergone. Smt. Vidhya and Smt. Kamlesh are on bail. Their bail bonds are cancelled. Accused Rajendra alias Raju, Suresh, Anil Kumar, Chander Pal, Shai Ram and Rajesh are behind the bars, they be released forthwith if not required in any other case.