Ramdayal and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Ramdayal @ Pappu s/o Prahlad and Ramniwas @ Ramkaran @ Niwas s/o Moolchand @ Feeta @ Mulya, were named as accused along with thirty-one other persons. The trial court by the judgment dated 10.1.2002 and 30.6.2005, convicted and sentenced twenty eight accused as under:--

"Kedar, Kishore @ Ram Kishore, Babu Lal @ Ram Dhan, Laddu Lal, Jai Ram, Ram Swaroop, Harbhajan @ Bhajan, Moji Ram, Ramkesh s/o Shyopal, Shyoji Ram @ Shyoji, Gopal s/o Govinda, Brij Mohan, Kalu Ram @ Kalu, Hajari, Morapal, Dhanpal, Jamna lal, Indra Raj, Shyokaran s/o Mool Chand, Shravan, Hanuman, Ramkesh s/o Shyopal, Ramji Lal, Mathura Lal, Jas Karan, Hari Ram, Kailash and Vilas @ Ram Vilas (vide judgment dated January 10, 2002):

Ramphool and Ganga Bishan (vide judgment dated June 30, 2005):

U/s. 148 IPC: Each to suffer rigorous imprisonment for one year.

U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for three months.

U/s. 326/149 IPC: Each to suffer rigorous imprisonment for five years and fine of Rs. 300/-, in default to further suffer simple imprisonment for two months.

U/s. 325/149 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 200/-, in default to further suffer simple imprisonment for one month.

U/s. 324/149 IPC: Each to suffer rigorous imprisonment for two years and fine of Rs. 100/-, in default to further suffer simple imprisonment for fifteen days.

U/s. 323/149 IPC: Each to suffer rigorous imprisonment for six months."

The substantive sentences were ordered to run concurrently.

Aggrieved against their conviction and sentence, the above said twenty-eight persons filed D.B. Criminal Appeal No. 81/2002 and 618/2005 before this Court. A co-ordinate Division Bench of this Court decided both the appeals titled as Kedar and 27 Others vs. State of Rajasthan [D.B. Criminal Appeal Nos. 81/02; 618/05] on 7.9.2007. The judgment delivered by Division Bench of this Court in above case has been reported as [(2008) 1 WLC 332].

We are informed that the judgment rendered by the Division Bench of this Court has been affirmed by the Hon''ble Supreme Court by dismissing the Special Leave to Appeal (Crl) No(s). 3331-3332/2008 on 13.5.2008.

The present two appellants, namely Ramdayal and Ramkaran, had absconded. Later they were apprehended and sent for trial. Criminal proceedings were set into motion on the basis of a written report (Exhibit-P/1) submitted by Banshi (P.W. 2). The written report (Exhibit-P/1) was presented before Subhash Singh, SHO, Police Station Chauth Ka Barwada. His signatures on the written report (Exhibit-P/1) have been duly identified by Narayan Lal (P.W. 12), who at the relevant time was posted as D.S.P., Sawai Madhopur (Rural). The written report (Exhibit-P/1) when translated into English, reads as under:--

"To, SHO, Police Station Chauth Ka Barwada,

Sir,

It is submitted that on 10.7.2000, at about 8:30 AM, I, Prakash, Chiranji, Jagram, Hanuman, Tikaram, Chothmal, Gangaram and Harphool had gone to our fields, Bada Dangara and Bankari, for sowing Bajara. When we had just commenced sowing Bajara crop, accused, namely Ramniwas s/o Mulya, Kedar s/o Ramniwas, Kishore s/o Govinda, Jairam s/o Girraj, Babu s/o Shravan, Maujiram s/o Jairam, Shyokaran s/o Mulya, Mathura Lal s/o Merpal, Babu s/o Prahlad, Morpal s/o Rattiram, Jamna lal s/o Chhitar, Ramkesh s/o Shravan, Gopal s/o Govinda, Kalu s/o Kishore, Kailash s/o Kalu, Jaskaran s/o Harpal, Hariram s/o Nanga, Hajari s/o Shravan, Bhajan s/o Rattiram, Bilas s/o Gopal, Ramji Lal s/o Ramphool, Gangabishan s/o Ramratan, Hanuman s/o Ramratan, Laddu lal s/o Shyokaran, Ramswaroop s/o Shyopal, Pappu s/o Prahlad, Shyoji s/o Jairam, Brij Mohan s/o Nanga, Ramkesh s/o Shyopal, Dhanpal s/o Narayan, Indra Raj s/o Jamna Lal, Ramphool s/o Govinda and Shravan s/o Radhya, with the common intention to cause murder, came on three tractors. Immediately on coming, they encircled us and opened attack. Ramniwas s/o Mulya, former Sarpanch, gave gandasi blow on the head of Prakash, due to which he fell on the ground (emphasis supplied). While he was lying fallen on the ground, Kishore and Kedar gave him gandasi blow and chopped up both feet of Prakash. Mathura Lal, Jaskaran, Laddu and Babu s/o Prahlad armed with gandasi and kulhari, had caused injuries on various parts of the body of Chiranji. Gangabishan, Ramswaroop, Bhajan, Jairam and Mauji Ram, armed with gandasi and kulhari had caused injuries on Jagram''s head and various parts of his body. Shyoji armed with gandasi caused injury on my left arm. Kalu gave a lathi blow on my back. Hanuman armed with kulhari caused injury to Bilas''s hand. Hajari gave gandasi blow on his back. Ramkesh s/o Shravan, Ramji lal, Ramphool, Jamna Lal, Ramkesh s/o Shyopal caused various injuries to Harphool and made him fall on the ground. Morpal, Babu, Kailash and Dhanpal armed with gandasi and lathis caused various injuries to Gangaram and made him fall on the ground. Hariram armed with gandasi chopped up Chothmal''s hand and Indra Raj injured him with lathi blows. Pappu (emphasis supplied), Shyokaran, Gopal, Brij Mohan and Hanuman armed with lathis gave beating to Tikaram. After causing injuries, all the accused decamped from the spot on their three tractors. I and Tikaram ran to the village Jhopad and from there, brought tractors of Mithalal, Pappu and Ratan Lal to the place of occurrence, and brought all the injured to Bhagwatgarh. Prakash had already died, therefore, we left his dead body in the field. At about 4:00 PM, we brought all the injured in Jeep to Government Hospital, Sawai Madhopur. Chiranji died on the way. Jagram died just after reaching the hospital. For whole night, I and other injured were being treated at hospital. Report is presented. Action be taken. Applicant Sd/- Banshi s/o Harphool Meena, r/o Bagina."

The autopsy on the dead body of Prakash @ Ram Prakash was carried and as per Post-Mortem Report (Exhibit-P/31A), following injuries were found on his dead body:

"(i) Incised wound 12 x 5cm x cutting skin, soft tissue, muscle, bone and leg vessels with haematoma and clotted blood around on right leg lower 1/3 part below wound was attached only by a flap of skin.

(ii) Incised wound 8 x 4 x cutting skin and soft tissues (muscle and tendon) and vessels with hematoma and clotted blood around, and with incomplete # of underlying bone (tibia) on the right leg, lower 1/3 3cm below injury No. 1.

(iii) Incised wound 5 x 1/2cm x muscle deep on right parietal region with subscalp hematoma.

(iv) Diffuse swelling on left occipital region and adjoining upper part of neck, with an abraded bruise of 5cm x 5cm over the swelling.

(v) Incised wound 7 x 1/4cm x skin deep on right shoulder.

(vi) Abraded bruise 6 x 4cm on upper 1/3 of right arm.

(vii) bruise red colour 25 x 5cm on right side of chest posterior aspect.

(viii) Incised wound 8 x 1cm x Bone deep on right hip with fracture of iliac bone.

(ix) Incised wound 7 x 4cm x Bone deep on lat. aspect of left knee with - left patella."

In the opinion of Medical Board the cause of death was hemorrhage leading to shock. The injury No. 1 was sufficient to cause death in the ordinary course of nature.

Similarly, Post-Mortem of Chiranji was also carried and this fact is proved from the Post-Mortem Report (Exhibit-P/32A), in which following ante-mortem injuries were found on his person:--

"(i) Incised wound 12 x 3cm x chest cavity deep with huge amount of red clotted blood.

(ii) Incised wound 7 x 2cm x bone deep with # of right humorus with hematoma of reddish colour.

(iii) Incised wound 3 x 1/2cm x muscle deep left occipital parietal region with subscalp hematoma of reddish colour.

(iv) Incised wound 5 x 1/4cm x skin deep on left side of chest.

(v) Bruise, red colour left lumber region, posteriorly with surrounding swelling size 13 x 8cm.

(vi) Bruise red colour 10 x 6cm on left popliteal fossa.

(vii) Bruise red colour 5 x 4cm on right popliteal fossa.

(viii) Incised wound 7 x 1/4cm x skin deep on left leg lower half on posterior aspect.

(ix) Lacerated wound 2 x 1/2cm x muscle deep right knee anteriorly.

(x) Abraded Bruise 5 x 4cm left knee anteriorly.

(xi) Incised wound 1 x 1/4cm x muscle deep on right thumb dorsal aspect on terminal part.

In the opinion of Medical Board the cause of death was hemorrhagic shock. The injury No. 1 was sufficient to cause death in the ordinary course of nature.

Deceased Jagram as per Post-Mortem Report (Exhibit-P/33A) received following ante-mortem injuries:--

"(i) Incised wound 7 x 1cm x Bone deep on right parietal region. On further examination red subscalp hematoma was present on both parietal region, there was a depressed of right parietal bone posteriorly with underlying red hematoma.

Dura: On opening the dura matter subdural hematoma under and around the fracture site was present. Brain Contusion 3 x 2cm on right parietal hemisphere occipital by red hematoma and clotted blood.

(ii) Right eye black eye.

(iii) Incised wound 7 x 2cm x muscle deep on right forearm, mid half.

(iv) Incised wound 5 x 1cm x bone deep on left blow postero lateral aspect with - of upper end of ulna and radius.

(v) Incised wound 7 x 1cm x muscle deep above left knee with - of patella.

(vi) Incised wound 3 1/2 x 1/2cm x muscle deep on right leg middle half.

(vii) Bruise red colour 4 x 2cm in right lumber region.

(viii) Bruise reddish colour on epigastric region 2 x 1cm."

In the opinion of Medical Board the cause of death was coma as a result of injury to skull and brain. The injury No. 1 was sufficient to cause death in the ordinary course of nature.

Tikaram was also medico-legally examined and as per injury report (Exhibit-P/35A), following injuries were found on his person:

"(i) Bruise 1" x 1/2" on back of leg.

(ii) Bruise with swelling 4" x 2" on right shoulder.

(iii) Abrasion 1/4" x 1/4" on right parietal region of scalp."

On X-ray no bony injury was found.

The prosecution has proved the injury report (Exhibit-P/39A) of injured, Chauthmal. He had received one incised wound with clotting 3" x 1" x bone deep on back of left mid forearm. On X-ray, fracture of upper 1/3 of shaft of radius bone was found.

Ganga Ram (P.W. 8), as per medico-legal report (Exhibit-P/41) had suffered following injuries:--

"(i) Incised wound 3" x 1" x bone on posterior aspect of rt. Mid leg.

(ii) Lacerated wound 1" x 1/4" x skin deep on left parietal region of scalp.

(iii) Swelling with tenderness 4" x 3" on right hand."

On X-ray fractures of lower 1/3 of fibula, lower end of fibula and proximal phalanx of middle finger of right hand were found.

Vide injury report (Exhibit-P/43A) Harphool (P.W. 7) received following injuries:--

"(i) Incised wound 1 1/2 x 1/4" x bone deep on medical aspect of left hand.

(ii) Incised wound 3" x 1/4" x bone deep on Ant. aspect of lower 1/3rd right forearm.

(iii) Incised wound 2" x 1/4 x bone lateral aspect of right mid forearm.

(iv) Abrasion with swelling 1/2" x 1/2 on back of right hand.

(v) Swelling with tenderness 4" x 3" on right foot.

(vi) Swelling with tenderness 3" x 3" on right knee.

(vii) Incised wound with clotting 2" x 1" x bone deep on anterior aspect of left elbow."

On X-ray fractures of upper end of radius bone of left elbow, lower end of radius and proximal phalanx of index finger of right hand, base of 2nd 3rd meta tarsal bone and lower end of right tibia bone were found.

Injured, Harphool appeared as P.W. 7, Gangaram as P.W. 8, Banshi as P.W. 2, Chouthmal as P.W. 15. They gave description of the occurrence and the injuries caused by each accused. In the present case, the occurrence had taken place on 10.7.2000, at 8:45 AM. The written report was handed over to SHO, Police Station Choth Ka Barwada at the hospital on 11.7.2000. In the testimony of Banshi (P.W. 2), he has stated in the court that "it is correct that I do not know as to which accused had caused injury to which person". The witness further stated that "he had submitted the report of the occurrence in the court". He further stated that as to what he has written in the report is not known to him - .

Evidence of these witnesses were appreciated by a Division Bench of this Court and their Lordships in Kedar and 27 Ors vs. State of Rajasthan [(2008) 1 WLC 332], have held as under:--

"9. We find it difficult to believe that memory of Banshi was so sharp that he described accurately the part played by each one of the assailants. Their Lordships of the Supreme Court in Masalti Vs. State of U.P., in a situation where crowd of assailants committed offence of murder, indicated thus:

"Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims , it may not be necessary that all of them have to take part in the actual assault." 10. Exaggerations, inconsistencies and embellishments noticed by us in the testimony of witnesses Banshi, Teeka Ram, Chauth Mal, Ganga Ram and Harphool are normal errors and they do not corrode the credibility of entire prosecution case. Having separated grain from the chaff we find the evidence of these witnesses consistent qua appellants Ganga Bishan, Kedar, Kishore @ Ram Kishore, Babu Lal @ Ram Dhan, Laddu Lal, Jai Ram, Ram Swaroop, Harbhajan @ Bhajan, Moji Ram, Shyoji Ram @ Shyoji, Kalu Ram @ Kalu, Mathura Lal and Jas Karan. As already noticed injuries on the person of deceased Prakash have been attributed to Ram Niwas, Ex Sarpanch (absconder, not before us) Kishore and Kedar. Deceased Chiranji Lal died on account of injuries caused by appellants Mathura lal, Jas Karan and Laddu whereas appellants Ganga Bishan, Ram Swaroop, Bhajan, Jai Ram and Moji Ram inflicted injuries on the person of deceased Jag Ram. Since appellants Shyoji Ram and Kalu Ram sustained injuries in the course of incident their participation in the crime is also established. In the facts and circumstances of case where typed report was drawn after 24 hours of the incident with graphic details of the part played by each of the assailants, possibility of over implication of appellants Ramphool, Ramkesh s/o Shyopal, Ramkesh @ Shravan, gopal s/o Govind, Brij Mohan, Hajari, Morapal, Dhanpal, Jamana Lal, Indra Raj, Shyokaran s/o Mool Chand, Shravan, Hanuman, Ramji Lal, Hari Ram, Kailash and Vilas @ Ram Vilas cannot be ruled out and we grant them benefit of doubt. In our opinion the prosecution has failed to establish guilt against them beyond reasonable doubt."

The above finding has been affirmed by the Hon''ble Supreme Court.

Tikaram, who was earlier examined as a witness, has not been examined as a witness in the trial against the present appellants.

Banshi appearing as P.W. 2 in examination-in-chief stated that Ramdayal had given a gandasi blow to Jagram. But he has not specified seat of injury given by appellant from a gandasi, on the person of Jagram. In the written report (Exhibit-P/1) which contained the first version, specific injury has been attributed to the appellant, Ramniwas and it is stated that he had caused an injury on the head of Prakash, due to which he fell on the ground. In cross-examination, Banshi (P.W. 2) stated that Ramdayal did not cause any injury to him. Further, he stated that forty persons came together, as accused, to commit murder.

Harphool (P.W. 7) in the court stated that Mathura, Prahlad and Ramdayal caused injuries to Chiranji. Harpool in the statement on 1.8.2000, stated that Ramniwas had caused injuries on the head of Chiranji. Ramniwas had also caused injury with gandasi on the neck of Prakash.

Having perused the statement of the injured witnesses, we are of the view that with passage of time, indeed, they have deviated from the earlier version given to the Police.

There is contradiction between the witnesses so far role of Ram Dayal, appellant is concerned. Banshi has stated that Ramdayal appellant caused injury to Jagram, whereas Harphool (P.W. 7) has attributed injury on head of Chiranji Lal to Ramdayal appellant, whereas in the written report (Exhibit-P/1) appellant Ramdayal @ Pappu alongwith four others had caused injuries to Tikaram. There were only three injuries on person of Tikaram, caused by five persons. In the present trial, Tikaram has not appeared as a witness.

Considering the earlier exercise undertaken by the Division Bench which has appreciated the evidence of the witnesses, we, also by examining the evidence independently, are in respectful agreement with the view formulated in Kedar and 27 Others (supra), wherein it was held that exaggerations, inconsistencies and embellishments have emerged in the testimony of the witnesses. Thus, we shall follow the same yardstick regarding appreciation of evidence which according to our evaluation was a sound principle, especially, when the mode of appreciation in the earlier judgment has been affirmed by the Hon''ble Supreme Court. Even at the cost of repetition, we again reproduce relevant portion of judgment delivered by Their Lordships of the co-ordinate Bench in Kedar and 27 Others (supra) as follows:--

"As already noticed injuries on the person of deceased Prakash have been attributed to Ram Niwas, Ex Sarpanch (absconder, not before us) Kishore and Kedar. Deceased Chiranji Lal died on account of injuries caused by appellants Mathura Lal, Jas Karan and Laddu whereas appellants Ganga Bishan, Ram Swaroop, Bhajan, Jai Ram and Moji Ram inflicted injuries on the person of deceased Jag Ram. Since appellants Shyoji Ram and Kalu Ram sustained injuries in the course of incident their participation in the crime is also established." 20. From the perusal of the evidence of the witnesses as also the written report (Exhibit-P/1), it is apparent that the appellant Ramniwas had caused injury to Prakash, which has resulted into his death. So far, the appellant Ramdayal is concerned, he has not caused any injury to any of the deceased, as per written report (Exhibit-P/1) and there are contradictions in the testimonies of the witnesses as pointed out in the preceding para. Therefore, we concur with the finding given by the earlier Division Bench in case of Kedar and 27 Ors. (supra) who after appreciating evidence held that over-implication of number of accused cannot be ruled out. We, on our own, are also of the same view and hold that it cannot be ruled out that appellant Ramdayal is a victim of over-implication.

Thus, we shall extend the benefit of doubt to the appellant, Ramdayal @ Pappu. However, we find that there is sufficient evidence qua appellant Ramniwas. For not only the witnesses have assigned fatal injury on the person of Prakash @ Ram Prakash to Ramniwas, but the same is also corroborated from FIR and medical evidence.

For the reasons stated above, D.B. Criminal Appeal No. 340/2010 preferred by the appellant Ramdayal @ Pappu is accepted, whereas D.B. Criminal Appeal No. 363/2010 preferred by Ramniwas @ Ramkaran @ Niwas is dismissed being devoid of merit.