Ramprasad and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—1. Naval on 7.7.2009 received one injury on the occipital region and died at the spot. Along with him, his mother Manju Bai (P.W.3) the complainant, father Dev Lal (P.W.6), brother Ram Charan (P.W.5) and sister Ram Janki (P.W.13) also suffered injuries.

Ram Charan (P.W.5) brother of the deceased Naval had suffered three blunt injuries out of which injury No. 3 was fracture of Tibia and was declared grievous. Mother, Manju Bai (P.W.3) had suffered five blunt simple injuries. Dev Lal (P.W.6) father of the deceased had suffered two blunt injuries. Injury No. 1 on the head of Dev Lal (P.W.6) was declared grievous. Ram Janki (P.W.13) had suffered three simple blunt injuries being bruises. For total thirteen injuries suffered in the occurrence, in the statement (Parchabayan) Exhibit-P/1, leading to registration of FIR (Exhibit-P/34) being number 153/2009, Manju Bai (P.W.3) had named twelve persons, namely Ramprasad, Chetram S/o. Mishrilal Dhakad, Raju S/o. Mohan Dhakad, Shyamlal S/o. Mohan Dhakad, Kunjbihari S/o. Ram Narayan Dhakad, Raghuveer S/o. Jagannath Dhakad, Jagannath S/o. Prabhu Lal Dhakad, Kamlesh S/o. Nathulal Dhakad, Buddhiprakash S/o. Nathulal Dhakad, Dev Lal S/o. Nathu Lal Dhakad, Dwarka Lal S/o. Nathu Lal and Kiskanda w/o Ram Prasad, as accused.

Investigating agency by filing report under Section 169 Cr.P.C., got two accused namely Dwarka Lal and Dev Lal discharged from custody, whereas remaining accused Jagannath, Kiskanda and Raghuveer were not found involved in the occurrence. Consequently, the prosecuting agency submitted charge-sheet against seven accused namely, Ram Prasad, Shyama @ Shyam Lal, Chetram, Rajaram @ Raju, Kamlesh, Kunjbihari and Buddhiprakash. The charge-sheet so submitted was committed to the court of Sessions and was entrusted for trial to the court of Additional Sessions Judge No. 2, Bundi. The said court vide impugned judgment dated 26.5.2012 held Ram Prasad accused guilty of offences under Sections 302 and 323 IPC. Accused Kamlesh was held guilty of offence under Section 302. However, the trial court further came to the conclusion that Chetram and Kunjbihari are only liable to be convicted for the offences under Sections 323 and 325 IPC. Thus, the accused Kunjbihari and Chetram were acquitted of offences under Sections 148, 307 or 307/149 and 302 or 302/149 IPC. The accused namely Shyama @ Shyam Lal, Rajaram @ Raju and Buddhiprakash were acquitted of all the offences.

Having convicted the appellants for the abovesaid offences, the trial court vide a separate order of even sentenced the appellants as under:--

"U/s. 302 IPC- to undergo life imprisonment and to pay fine of Rs. 10,000/-, in default of payment of fine to further undergo additional six months S.I.

U/s. 323 IPC- to undergo one year S.I.

U/s. 325 IPC- to undergo two years and ten months S.I. and to pay fine Rs. 3,000/- each, in default of payment of fine to further undergo additional three months S.I."

We are informed that Chetram and Kunjbihari, since had undergone the sentence awarded by the trial court, they were not sent to the prison.

Aggrieved against the conviction and sentence, Ram Prasad and Chetram have instituted D.B. Criminal Appeal No. 482/2012, whereas Kamlesh and Kunjbihari have preferred D.B. Criminal Appeal No. 527/2012. Since both the appeals are directed against the common judgment, we shall decide these appeals together.

Considering the arguments advanced and the questions raised, we have been called upon to determine the following three issues:

"a) The place of occurrence.

b) The manner in which the occurrence had taken place.

c) The role of accused Kamlesh considering the overt role allegedly assigned to him."

Before we deliberate and give our findings qua issues raised before us, it will be necessary to recapitulate brief facts of the case.

The statement of Manju Bai (P.W.3) mother of the deceased Naval and wife of injured Dev Lal (P.W.6) was recorded on 7.7.2009 at 9:20 PM at Government General Hospital, Bundi. The statement made by Manju Bai (P.W.3) was recorded by Kalu Ram (P.W.22), who was then posted as Station House Officer, Police Station Dablana, Bundi. The said statement when translated into English reads as under:--

"On inquiry, stated that I am resident of village Bhawanipura. Today on 7.7.2009, I, my husband Dev Lal, my both sons Ram Charan and Naval and daughter Ram Janki had gone to our field near the well. The said field is near our house. Ram Prasad S/o. Prabhu Lal Dhakad is having dispute with us over the land. On the said date, he came with tractor to cultivate the land. His family members called us from the house by saying that today they will resolve the dispute. In the evening at about 4:00 PM, we all family members went to our field near the well. Meanwhile, Ramprasad armed with iron rod, Chetram S/o. Mishrilal Dhakad armed with gandasi, Raju S/o. Mohan Dhakad armed with stick, Shyamlal S/o. Mohan Dhakad armed with axe, Kunjbihari S/o. Ram Narayan Dhakad armed with stick, Raghuveer S/o. Jagannath Dhakad armed with gun, Jagannath S/o. Prabhu Lal Dhakad armed with pick-axe, Kamlesh S/o. Nathulal Dhakad armed with iron rod, Buddhiprakash S/o. Nathulal Dhakad armed with iron rod, Dev Lal S/o. Nathu Lal Dhakad armed with gandasi, Dwarka Lal S/o. Nathu Lal armed with gandasi and Kiskanda w/o Ram Prasad armed with pick-axe, with common intention came there and on coming said, today we will finish them. By saying so, with an intention to kill, Ram Prasad caused iron rod blow on my foot. He gave a second injury on my hand. I fell on the ground. He caused third injury on my other foot. Ram Prasad and Kamlesh with iron rod caused injury on the neck and head of my son Naval. He became unconscious. My husband Dev Lal was caused injury with gandasi. Chetram caused injury with gandasi on the head of my son Ram Charan. Kunjbihari gave injury with stick on shoulder and foot. Buddhiprakash caused injury with iron rod on the foot of my daughter Ram Janki. This occurrence was witnessed by Sardalal S/o. Bajrang Lal Meena, Badri Lal Meena, Durga Lal Meena and other residents of village. My son Naval due to head injury became unconscious. My husband also became unconscious. My son Ram Charan also became unconscious. We all were lying at the spot. Residents of village gave information to the police. The police brought us to the hospital and got us admitted."

It is to be noted that the occurrence in the present case had taken place on 7.7.2009 at 4:00 PM. The statement (Exhibit-P/1) was made by Manju Bai (P.W.3) at 9:20 PM. The case was registered at the police station Dablana on 7.7.2009 at 11:30 PM and the special report reached Illaqa Magistrate on 8.7.2009 at 1:30 PM.

In medical evidence, on the person of Naval only one injury was found with swelling on occipital region. This injury is attributed to two persons namely Ram Prasad and Kamlesh. Both Ram Prasad and Kamlesh have been convicted and sentenced for the offence under Section 302 IPC. Since in the beginning of the judgment, we had given brief gist of medical evidence, we need not refer to the testimony of doctors who had examined injured and noticed solitary injury in the Post Mortem of the deceased and the injuries suffered by the witnesses in the medico-legal reports. Suffice it say that the solitary head injury on the person of Naval had proved fatal.

The prosecution in order to fortify its case, examined injured Manju Bai (P.W.3), Ram Charan (P.W.5), Dev Lal (P.W.6) and Ram Janki (P.W.13). Besides above injured witnesses, the prosecution examined Durga Lal (P.W.1), Shradha Lal (P.W.2), Smt. Durga Bai (P.W.8), Smt. Gaura Bai (P.W.9), Smt. Bajrangi Bai (P.W.10) and Jagdish (P.W.11) as eyewitnesses of the occurrence.

The prosecution in all had examined twenty-five witnesses. We need not notice the testimony of witnesses who had prepared the site plan, witnessed the recovery of weapon, or had participated in the investigation.

Injured witnesses namely Ram Charan (P.W.5), Dev Lal (P.W.6) and Ram Janki (P.W.13) have reiterated the version which had surfaced in Parchabayan (Statement Exhibit-P/1) made by Manju Bai (P.W.3) to the police. Manju Bai (P.W.3) has stated that before the day of occurrence, there was a dispute over the land and accused Ram Prasad with the tractor had gone to the field to cultivate the same and in order to resolve the dispute, they were called by the family members of the accused to the field in question and there the accused had caused injuries. We may highlight here that no accused had suffered any injury in the occurrence. In the context of above, we have to determine the place of occurrence.

A. The place of occurrence.

Witnesses are consistent to the effect that the spot where the occurrence had taken place was bone of contention between the parties. The parties were having a long standing dispute over the land in question. This has been admitted by Manju Bai (P.W.3). On the day of occurrence, Ram Prasad came with tractor. He wanted to cultivate the land. The court is made to understand by the witnesses that in order to resolve the dispute complainant party was called by the family members of the accused.

Durga Lal (P.W.1) stated that Dev Lal (P.W.6) was having 10/12 bigha of land and he was cultivating the same. Ram Prasad accused had purchased the land from Raghuveer and at the time of purchase of the land, boundary (Medh) was already made. This witness stated as under:--

Durga Lal (P.W.1) further stated that earlier the land was demarcated by the Tehsildar, Hindoli and as per demarcation, the land in possession of Ram Prasad was found upto the old boundary (Medh).

Durga Lal (P.W.1) further stated that when he reached at the spot, one or two injured were lying on the common boundary and one or two injured were found inside the field of Ram Prasad.

Sardalal (P.W.2) also deposed that there was a dispute regarding the land. Ram Prasad had purchased the land from Raghuveer and at the time of purchase of the land, there was a common boundary and the land of parties were divided by common boundary. This witness stated as under:

Sardalal (P.W.2) further stated that there was a dispute over the land and the demarcation of the land was also got done through Tehsildar and Patwari and the villagers told parties to abide by the old boundary (Medh). This witness denied the suggestion that the complainant Dev Lal (P.W.6) had encroached to land of accused. However, he stated that boundary was made but as to who made it, he is not aware. It will be apposite here to read the following portion from the vernacular testimony of Sardalal (P.W.2):

Sardalal (P.W.2) further admitted that when he reached the field all the five injured were lying in the field of Ram Prasad. This witness further stated that the accused had dragged the injured to their field. The following words stated by the witness are required to be reproduced as under:

We may find here that in the injury noticed on the person of deceased Naval and in medico-legal reports prepared qua witnesses no drag marks have been found. Therefore, to us, that the injured were dragged to the field of Ram Prasad seem to be an after thought and blemish. The matter of fact is that injuries were caused and the injured were found in the field in possession of Ram Prasad.

Regarding the place of occurrence, the finding of Investigating Officer, Kalu Ram (P.W.22) assume importance. Kalu Ram (P.W.22) stated that the complainant earlier had made an attempt to cause encroachment in the field of Ram Prasad. Ram Prasad had informed the police. Security proceedings were initiated and on the day of occurrence, the injured were found in the field of Ram Prasad and the occurrence had taken place in his field. In the cross-examination by the defence counsel, this witness stated as under:

Regarding the history of litigation and the fact that the complainant party was taking law into their own hand and were preventing Ram Prasad to cultivate his land, the Investigating Officer stated as under:--

Thus, from the evidence of independent witnesses namely Durga Lal (P.W.1) and Sardalal (P.W.2), and Investigating Officer kalu Ram (P.W.22), it is apparent that the occurrence had taken place in the field of accused, Ram Prasad. The complainant party before the occurrence were making an attempt to cause encroachment which was resisted by the accused. The accused had approached the public authority. Security proceedings were also initiated and on the day of occurrence, family of the complainant which consisted, father, mother, two brothers and a daughter had gone to the field in possession of Ram Prasad to prevent him from cultivating his field with the tractor. Thus, the complainant party within the meaning of Section 441 of IPC had committed the criminal trespass in the field of accused.

However, we are not amenable to accept argument advanced by Mr. Biri Singh Sinsinwar, the learned Sr. Counsel appearing for the accused, that since the complainant party had committed offence of criminal trespass, therefore, we should extend complete right of self defence of property to the accused. We may notice here that right to cause death is available to the accused only under Section 103 IPC in case of house trespass. As per Section 105 IPC Para 4, the accused had a right to resist criminal trespass or mischief. We also cannot become oblivious of the fact that no accused had suffered any injury and the members of the complainant party were empty handed. Thus to us, the right to cause death, injury or death will not accrue to the accused, only when there is an apprehension to the accused that they will suffer grievous injury or injuries at the hands of the complainant party. The very fact that the complainant party had committed offence of criminal trespass, to prevent Ram Prasad to ply tractor in his field, will vest no right in the accused, especially when members of the complainant party were empty handed. However, there is a clinching evidence that the occurrence had taken place in the field of Ram Prasad, when he wanted to ply tractor in his field to cultivate the land.

B. The manner of the occurrence.

Having held that the occurrence had taken place in the field of accused, we have to examine as to how the occurrence had erupted or taken place. Manju Bai (P.W.3), Ram Charan (P.W.5), Dev Lal (P.W.6) and Ram Janki (P.W.13) have taken a plea that Ram Prasad intended to cultivate the field with the tractor and at that stage, family members of the accused had called them for settlement in the field. To us, this is an excuse coined by the complainant to justify their presence in the field of accused. It has come in the evidence that parties were litigating and had got the land demarcated from the Tehsildar and Patwari. It has also come in the evidence that the parties were bound by security proceedings under Section 107/151 Cr.P.C. Few days before the occurrence, Dev Lal (P.W.6), father of the deceased Naval and husband of the complainant Manju Bai (P.W.3) alongwith family members had made an attempt to encroach upon the land of the accused. Thus, entry of the complainant in the field, in possession of Ram Prasad when he intended to ply the tractor to cultivate the field was not an innocent act. They had gone their to prevent Ram Prasad from cultivating the field. Manju Bai (P.W.3) had admitted in the court as under:--

Jagdish (P.W.11) who appeared in the court as an independent witness, and is having his field near the field of accused and the complainant, has described the occurrence somewhere close to the description given by Manju Bai (P.W.3) the complainant and suggestion given to Manju Bai (P.W.3) by the defence. This witness stated in the court as under:

Jagdish (P.W.11) has also stated that in order to ply the tractor, the complainant party came in front of the tractor. They forcibly attempted to ride over the tractor to stop Ram Prasad then occurrence had taken place

Taking into account the manner of occurrence stated by Manju Bai (P.W.3) and Jagdish (P.W.11), we are of the firm opinion that Ram Prasad along with his family members had gone to cultivate the field. At that stage, Dev Lal (P.W.6) came in front of the tractor. Jagdish (P.W.11) scaled over the tractor to prevent Ram Prasad from driving the tractor and at that stage, Ram Prasad had given a solitary blow on the head of Naval. Thus, it is apparent that the accused had only gone to field to cultivate his own field and the occurrence had taken place without any pre-mediation when suddenly the complainant party arrived in the field of accused to prevent him from driving the tractor. We cannot become oblivious of the fact that the deceased Naval had only suffered one injury and that injury is attributed to Ram Prasad. Thus, to us, offence qua Ram Prasad will not fall under Section 302 IPC but under Section 304 Part-I IPC.

C. Role of accused Kamlesh.

In the FIR, Manju Bai (P.W.3) had stated that Ram Prasad and Kamlesh with iron rod had caused injuries to his son Naval on the neck and the head. In the court, she stated that Ram Prasad, Kamlesh and Chetram caused injuries to his son Naval. Furthermore, Kunjbihari had also caused injury to Naval. Ram Charan (P.W.5) in the court stated that Ram Prasad caused iron rod blow on the head of his brother Naval and Kamlesh caused injury on the neck of Naval.

Dev Lal (P.W.6) in the court stated that Naval was caused injury by Kamlesh, Ram Prasad, Chetram and Kunjbihari.

A perusal of medical evidence, i.e. testimony of Dr. Manoj Jain (P.W.19) reveal that there was only one injury found in the Post Mortem Report (Exhibit-P/29). As per Post Mortem Report, the injury noted on the person of deceased Naval is as under:--

"circumcised, swelling 8.0cm x 5.0cm on occipital region on cut section:-- Irregular shape of Haematoma with Ecchymosis around haematoma and fracture (#) of occipital bone (mid). Brain material is compressed at # level due to long irregular haematoma in occipital lobe of brain (Post)."

Ram Charan (P.W.5) had attributed injury on the neck of the deceased Naval to Kamlesh. No injury has been found on the neck of the deceased Naval. We may notice that Smt. Gaura Bai (P.W.9) eyewitness of the occurrence in the court had stated that Kamlesh accused was not involved in giving beating and he was standing on the side.

Premchand (P.W.24) who was assigned the investigation later and was posted as Circle Officer, in cross-examination admitted as under:

Thus, during the investigation, no role was assigned to Kamlesh by the independent witnesses and as per them, he was standing on the boundary and had not participated in the occurrence. Thus, taking into account the contradictions between ocular and medical evidence, there being only one injury and injury attributed to Kamlesh not being present in the medical evidence along with the fact that in the statements made by independent witnesses, during investigation of the police, it has surfaced that Kamlesh had not participated in the occurrence and was standing on the boundary, we are of the view that as a matter of abundant caution, benefit of doubt can be extended to Kamlesh.

As a result of above discussion, we accept D.B. Criminal Appeal No. 527/2012 qua appellant Kamlesh, by extending him benefit of doubt by way of abundant caution. Thus, he is acquitted of the charges and conviction and sentence recorded qua him by the trial court is set aside. However, we partly accept D.B. Criminal Appeal No. 482/2012 qua Ram Prasad and modify the offence from 302 IPC to Section 304 Part-I IPC, for the reasons already stated by us. As a result of conversion of the offence from Section 302 to Section 304 Part-I IPC, we set aside the life imprisonment awarded to Ram Prasad appellant in Appeal No. 482/2012 and instead thereof, we sentence him to undergo ten years R.I. and to pay a fine of Rs. 10,000/-, in default of payment of fine to further undergo one year R.I.

However, we find no reasons to cause interference qua Chetram appellant No. 2 to D.B. Criminal Appeal No. 482/2012 and Kunjbihari appellant No. 2 to D.B. Criminal Appeal No. 527/2012. Hence, the respective appeals preferred by them are dismissed. However, the conviction and sentence for offences under Sections 323 and 325 IPC as pronounced by the trial court is affirmed.