Rajasthan High Court - Jodhpur
Ganesh Ram And Anr vs State on 21 December, 2022
Bench: Sandeep Mehta, Farjand Ali
(1 of 19) [CRLA-150/1989 & 50/1989]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Criminal Appeal No.150/1989
The State of Rajasthan.
----Appellant
Versus
1. Ganesh Ram son of Rughaji,
2. Chanda Ram son of Purkaji,
Both by Caste Sirvi, residents of Thakurvas, Police Station
Siriyari, District Pali.
(At present lodged in District Jail at Pali)
----Respondents
Connected With
(2) D.B. Criminal Appeal No.50/1989
1. Ganesh Ram son of Rughaji,
2. Chanda Ram son of Purkaji,
Both B/C Sirvi, R/o Thakuras, P.S. Siriyari, District Pali.
(At present lodged in District Jail at Pali)
----Appellants
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. B.R. Bishnoi, AGC
For Respondent(s) : Mr. S.K. Verma with
Mr. Swaroop Singh
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI
Judgment
Date of Pronouncement ::: 21/12/2022
Judgment Reserved on ::: 03/08/2022
BY THE COURT : PER HON'BLE MEHTA, J.
1. The accused Ganesh Ram and Chanda Ram were tried for the
offences punishable under Section 302 read with Section 34 IPC
(2 of 19) [CRLA-150/1989 & 50/1989]
and in the alternative under Section 302/34, 323 IPC by the
learned Sessions Court, Pali vide judgment dated 08.12.1988 in
Sessions Case No.97/85 arising out of FIR No.16 dated
19.03.1985, Police Station Siriyari, District Pali.
Upon conclusion of the trial, the learned Sessions Judge
proceeded to acquit the accused from the offence punishable
under Section 302 IPC read with Section 34 IPC and instead,
convicted them for the offence punishable under Section 304 Part
I IPC read with Section 34 IPC and sentenced them to 7 years'
Rigorous Imprisonment and a fine of Rs.250/- and to further
undergo 3 months' Simple Imprisonment in default of payment of
fine. The accused Chanda Ram was also convicted for the offence
punishable under Section 323 IPC and was sentenced to one
year's Rigorous Imprisonment on that account. All sentences were
ordered to run concurrently.
The accused Chanda Ram and Ganesh Ram have filed Appeal
No.50/1989 for assailing their conviction and the sentences
awarded to them by the trial court whereas, the State of
Rajasthan has filed the appeal No.150/1989 questioning acquittal
of the respondents from the charge for the offence punishable
under Sections 302 read with Section 34 of the IPC. Since, both
the appeals arise out of common judgment dated 08.12.1988, the
same have been heard and are being decided together.
It may be noted here that the appellant No.1 Ganesh Ram
expired on 09.09.2014 and thus, both the appeals to his extent
have already been abated.
Brief facts relevant and essential for disposal of these
appeals are noted hereinbelow:-
(3 of 19) [CRLA-150/1989 & 50/1989]
2. Shri Chain Singh (P.W.2), lodged a written report (Ex.P/4) at
the Police Station Siriyari, District Pali on 19.03.1985 at about
6.15 AM, alleging inter alia that on the previous night, he and
Mohan Kumar were guarding Raida (mustard) Crop in their field.
Sometime between 12.00 to 12.30 p.m., Durga Ram son of Kupaji
and his younger brother Chotu Singh, came running and shouting
that Jethu Singh was being assaulted by Madan Singh Rajput,
Ganesh Ram Sirvi and Chanda Ram Sirvi with Dhariyas and lathis.
Durga Ram also stated that he too had been beaten by Madan
Singh. Durga Ram further stated, that he and Jethu Singh had
gone to the Bera Rail to request Maga Ram and others, not to give
false evidence. A little later, Madan Singh and his companions
arrived and launched the brutal assault upon which, the informant
and Jora Ram ran away from the place of incident for saving their
lives. Durga Ram stated that he did not know as to where Jora
Ram had gone. Madan Singh was alleged to be armed with a
Dhariya whereas, Ganesh Ram and Chanda Ram were armed with
lathis. On hearing this, Chain Singh, his brother Chotu Singh and
Durga Ram, all proceeded to the Bera Rail, where they saw Jethu
Singh lying on the ground with his head split up and sharp wounds
noticeable on the calves of his both legs. It was further alleged
that the informant and his maternal uncle Shri Madan Singh were
on inimical terms and previously also cases had been instituted
between them. The next date in the case involving offence under
Section 307 IPC was 26.03.1985. Madan Singh had been hurling
insinuations that he would do something about that and they
should be prepared to face the consequences. The informant and
the witnesses remained hidden in the wheat crop in the night time
(4 of 19) [CRLA-150/1989 & 50/1989]
and after dawn, they forewarned the family members and then,
proceeded to the police station for filing the report.
3. On the basis of this report, FIR No.16 (Ex.P/5) dated
19.03.1985 was registered at the Police Station Siriyari, District
Pali for the offence punishable under Section 302 IPC and
investigation was undertaken by Shri Devilal, SHO, Police Station
Siriyari. The SHO proceeded to the place of incident and saw the
dead body of Shri Jethu Singh lying on the ground with visible
marks of injuries on his head and calves. Spot documents and
Panchnama Lash were prepared. The dead body was forwarded to
the Government Hospital, Ranawas, Pali for getting autopsy
conducted. The Medical Officer Dr. Laxmiroopchand Bhandari
(P.W.1) conducted autopsy and issued the Postmortem Report
(Ex.P/1). The body was then, handed over to the family members
for cremation. The accused persons were arrested. During the
course of investigation, weapons of offence were recovered in
furtherance of their disclosure statements. Investigation was
concluded and a charge-sheet came to be filed against accused
appellants for the offences punishable under Sections 302 IPC and
Section 323 IPC. The accused Madan Singh could not be arrested
and thus, the charge-sheet qua him was filed by resorting to
Section 299 Cr.P.C. Offence under Section 302 IPC being Sessions
triable, the case was committed to the Court of Sessions Judge,
Pali where, charges were framed against both the accused for the
above offences. They pleaded not guilty and claimed trial. The
prosecution examined 16 witnesses and exhibited 27 documents
and 7 Articles to prove its case. The accused were questioned
under Section 313 Cr.P.C. They denied the prosecution story and
(5 of 19) [CRLA-150/1989 & 50/1989]
claimed to be innocent. Four documents were exhibited but no
oral evidence was led in defence.
After hearing the arguments advanced by the learned Public
Prosecutor and the Defence counsel and appreciating the evidence
available on record, the learned trial court, proceeded to tone
down the charge under Section 302 IPC to one under Section 304
Part I read with Section 34 IPC and convicted and sentenced the
accused as above. The State of Rajasthan has filed appeal
No.150/1989 against acquittal of the accused respondents from
the charge under Section 302 IPC whereas, the accused have
preferred the appeal No.50/1989 for assailing their conviction as
recorded by the trial court.
4. Shri S.K. Verma, learned counsel representing the accused
appellants, vehemently and fervently urged that the entire
prosecution case is false and fabricated. The FIR was lodged after
significant delay. The evidence of the so called eye-witnesses Jora
Ram and Durga Ram is not reliable. Their presence at the place of
incident is doubtful. Conduct of these witnesses in not trying to
intervene for saving the victim Shri Jethu Singh when he was
being assaulted, clearly indicates that they were not present at
the time of the alleged assault and were created to become eye-
witnesses of the incident. The story put forth in the FIR so as to
justify presence of the witnesses at the crime scene is totally
unconvincing. There is no justification as to why the witnesses
would go to the well of Maga Ram in the dead of the night at
about 12 O' Clock. The story that they went there to warn Maga
Ram against giving false evidence in the criminal case, clearly
indicates that they were the aggressors and were trying to tamper
(6 of 19) [CRLA-150/1989 & 50/1989]
the witnesses in the criminal case registered at the instance of the
accused Madan Singh and thus, the true genesis of occurrence has
been suppressed by the prosecution. Shri Verma, further
submitted that there is a grave contradiction in the evidence of
Durga Ram and Jora Ram regarding the cause for going to the well
of Maga Ram. Thus, evidence of the so called eye-witnesses is
totally unbelievable. In the alternative, Shri Verma submitted that
allegation of inflicting the head injury to the deceased Jethu Singh
is specifically attributed to the accused Madan Singh, who was the
only person armed with a sharp weapon. The other accused were
alleged to be armed with lathis. No significant injuries by blunt
weapons were noticed on the body of Shri Jethu Singh when
postmortem was undertaken and thus, allegation regarding
participation of the accused appellants herein in the incident is not
fortified but rather contradicted by the medical evidence.
On these submissions, Shri Verma implored the Court to
dismiss the State's appeal; accept the appeal filed by the accused
appellant Chanda Ram and acquit him of the charges.
5. Per contra, learned Public Prosecutor, vehemently and
fervently opposed the submissions advanced by the appellant's
counsel. He urged, that the testimony of the material prosecution
witnesses Jora Ram (P.W.3), Maga Ram (P.W.4) and Durga Ram
(P.W.10), is convincing and reliable. All these witnesses gave
wholesome evidence to prove the presence and active
participation of the accused in the incident wherein, the deceased
Jethu Singh was given multiple blows of sharp as well as blunt
weapons on the vital body parts which proved fatal. A criminal
case had been registered at the instance of the absconding
(7 of 19) [CRLA-150/1989 & 50/1989]
accused Madan Singh and some of the witnesses in the present
case were also portrayed as accused in the said criminal case.
Thus, Shri Madan Singh and the appellants herein, went to the
place of incident in order to intimidate these persons and in this
process, Jethu Singh was brutally beaten and done to death.
On these grounds, learned Public Prosecutor implored the
Court to dismiss the appeal against conviction filed by the
accused; accept the appeal filed by the State and reverse the
acquittal of the accused as recorded by the trial court from the
charge under Section 302 IPC and award sentence of Life
Imprisonment to the surviving accused Chanda Ram.
6. We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the
impugned judgment and have minutely re-appreciated the
evidence available on record.
7. At the outset, we may note that motive for the incident
which has been put forth by the prosecution in its evidence is that
Chain Singh, the informant and Madan Singh were on inimical
terms and that a case under Section 307 IPC was registered at the
instance of Madan Singh wherein, the next date was fixed as
26.03.1985.The prosecution claims that Madan Singh was hurling
insinuations that he would do something in relation to this case
and that the complainant party should be prepared to face the
consequences. As per the prosecution, Jethu Singh was assaulted
and killed on account of enmity arising out of the said previous
criminal case and this is alleged to be the motive behind the
murder.
(8 of 19) [CRLA-150/1989 & 50/1989]
Now, we proceed to appreciate the evidence of the witnesses
examined by the prosecution.
8. Chain Singh (P.W.2), the first informant stated in his
evidence that the incident took place in the night at about 12.30.
He and Mohanlal were guarding their Raida Crop. At that time,
Durga Ram and Chotu Singh (the informant's younger brother)
came and stated that Jethu Singh was being beaten at the Rail
Bera by Madan Singh, Ganesh Ram and Chanda Ram by Dhariyas
and Lathis. Durga Ram and Chotu Singh also stated that they had
gone to counsel Maga Ram in relation to the criminal case. Jethu
Singh warned Maga Ram that he and his maternal uncle (the
accused Madan Singh), might join hands again and thus, he (Maga
Ram) should not venture to give false evidence in the criminal
case. They disclosed that the incident had taken place in front of
Maga Ram's house. On getting the information, Shri Chain Singh,
Chotu Singh and Durga Ram proceeded to Rail Bera and saw the
dead body of Jethu Singh lying on the ground. The witnesses then,
went back to their field and remained hidden in the crops for
whole of night. In the morning, Chain Singh proceeded to lodge
the report at the police station. The witness further stated that
Madan Singh was annoyed with Jethu Singh and his brothers. In
cross-examination, the witness stated that Madan Singh had
lodged a case for the offence under Section 307 IPC against him
and Jethu Singh and date of this case was fixed about 5-6 days
later. Jethu Singh had gone to counsel Maga Ram, not to give false
evidence in the same case.
(9 of 19) [CRLA-150/1989 & 50/1989]
9. Jora Ram (P.W.3) stated that Durga Ram took him to
grinding mill of Jethu Singh on the day of the incident. Durga Ram
completed two rounds of grinding the wheat whereafter, Jethu
Singh suggested that they should go to the Rail Bera. Both
proceeded to Rail Bera and went to the house of Maga Ram.
Bonfire was started, a mattress was spread and all sat around the
fire. Maga Ram called his son Chimna Ram and asked him to
prepare tea. They were talking to each other when Jethu Singh
insinuated that he and his maternal uncle Madan Singh would
overcome their differences and that, Ratta Ram should be made
aware of this possibility. While the talks were going on, Madan
Singh, Ganesh Ram and Chanda Ram came there. Madan Singh
was armed with a Dhariya whereas, Ganesh Ram and Chanda Ram
were armed with Lathis. Ganesh Ram gave a lathi blow on the
back of Jethu Singh. Alarmed by the sudden attack, Chotu Singh,
Jora Ram and Durga Ram, started running away. Chimna Ram
caught hold of Ganesh Ram's lathi. While the witness and Durga
Ram were running away, Chanda Ram aimed lathi blows at both of
them. But they kept on running. Jethu Singh followed them. They
were pursued and when they reached near the boundary of the
field, Madan Singh gave a Dhariya blow on the neck of Jethu Singh
who fell down. The witnesses stopped a little farther and saw all
the three accused persons assaulting Jethu Singh by their
respective weapons. A little later, the witnesses left the field.
Durga Ram went to the flour mill and Jora Ram proceeded to his
house. In the morning, he heard that Jethu Singh had passed
away. The police came to the well at about 7-8 AM. He was
interrogated in the afternoon. He was also examined for his
injuries and the doctor issued a medical report (Ex.P/4).
(10 of 19) [CRLA-150/1989 & 50/1989]
Significant extracts of cross-examination conducted from the
witness are noted hereinbelow:-
"It was wrong to say that they ran from the spot
immediately after Ganesharam gave a lathi blow to Jethu Singh.
Once they started from the house of Maga Ram, they kept on
running for about 4-5 minutes. Madan Singh gave the blow of
Dhariya to Shri Jethu Singh at the boundary of the field."
The witness admitted the defence's suggestion that it was
pitch dark when the incident happened.
10. Maga Ram (P.W.4), stated that he was sleeping in his house.
At about 9 O' Clock, his wife woke him up and told that Kishnaram
was calling him out. On this, he went out of his house. Kishnaram
told him that Jethu Singh was waiting at the house of Ratta Ram.
The witness summoned Jethu Singh to his house. He laid out a
mattress and lit a fire. The witness, Jethu Singh, Durga and Jora,
sat around the fire. The witness called his son Chimna to bring
milk and prepare tea. They all consumed tea and started smoking
bidis. Jethu Singh suggested that he and his uncle (Madan Singh)
would join hands and that, Ratta Ram should be made to
understand the consequences. Maga Ram assured that he would
do the needful. Thereafter, the accused appellants and Madan
Singh, came there. Madan Singh was armed with a Dhariya and
the other two (appellants herein) were having lathis in their
hands. Ganesh Ram gave a lathi blow on the back of Jethu Singh.
Chimna Ram caught hold of the lathi but Ganesh pulled it back.
Jethu Singh, Durga Ram and Jora Ram started to run away.
Chanda Ram gave lathi blows to Durga Ram and Jora Ram. Whilst
the witnesses were running away, Madan Singh and the other two
(11 of 19) [CRLA-150/1989 & 50/1989]
accused pursued them. Madan Singh inflicted a Dhariya blow to
Jethu Singh. The witness went back to his house, fearing for his
own safety. Madan Singh came in front of his house and shouted
that Jethu Singh had been dealt with and if anyone gave evidence
against his interest, the same consequence would ensue. Later on,
the witness claims to have proceeded to the place where dead
body of Jethu Singh was lying, which was at a distance of about
120 feet from the well. On the next morning, the police came on
which, the witness came out of his house.
In cross-examination, the witness was confronted with his
police statement (Ex.D/2) regarding various contradictions. The
witness denied having given such police statement. Significant
extracts from the police statement of the witness are reproduced
hereinbelow for the sake of ready reference:-
"............................तब किशन बा ने कहा की जेठू सिंह जी आए
हैं दारू पिए हुए हैं रतिया के घर की तरफ गए हैं तब मैं रुगा के
घर गया था व जेठू सिंह जी को हाथा जोड़ी कर समझाकर सडे
पर लेकर आया था ..................
.............................................
जेठू सिंह जी कह रहे थे की रतिया को समझाओ हम व ममोसा
तो कल एक हो जाएं गे तब मैंने कहा था की समझा दें गे"
The witness also admitted that litigation was going on
between him and the accused Ganesh but the matter had been
settled.
11. Chimna Ram (P.W.5) also gave evidence in conformity with
what was stated by his father Shri Maga Ram. However, upon
being subjected to cross-examination, he stated that he only saw
Madan Singh giving a Dhariya blow to Jethu Singh and that he
could not observe anything more.
(12 of 19) [CRLA-150/1989 & 50/1989]
12. Durga Ram (P.W.10) stated that a small child came and told
him that he was being called to the flour mill of Jethu Singh. He
proceeded there. On the way, his friend Jora Ram met him and
both of them proceeded together to the flour mill of Jethu Singh,
who told him to complete two rounds of wheat grinding. He
complied and then shut down the mill. On Jethu Singh's
suggestion, they went to the Rail Bera for finding labourers. Jethu
Singh switched off the pump fixed on the well. Kishnaram came
there and objected on which, Jethu Singh told him to restart the
same. He complied and restarted the pump. Jethu Singh asked
Kishna to identify the house of Ratiya, Kishnaram pointed it out.
Jethu Singh called out for Ratiya but nobody responded. On
hearing the voice of Jethu Singh, Maga Ram came out and offered
them tea. They sat down on a mattress. One Chautharam also
came there. Thereafter, Madan Singh, Guna Ram (Ganesh) and
Chanda Ram came there. Guna Ram gave lathi blow on the back
of Jethu Singh. Chimna Ram caught hold of the lathi but Guna
Ram snatched it back. Madan Singh gave Dhariya blow to Jethu
Singh who fell down at the spot. Chanda Ram gave lathi blows to
Jora Ram and the witness who alongwith Jethu Singh started
running away. Jethu Singh fell down on the corner of the field
because of the injuries. The witness claims to have seen all the
three accused persons assaulting Jethu Singh by their respective
weapons. The witness, then rushed the flour mill of Jethu Singh
and told his younger brother Chotu Singh about the attack. He
and Chotu Singh went to Rail Bera where, they met Chain Singh,
another brother of Jethu Singh. They narrated the details of the
incident to Chain Singh. The witness, Chotu Singh and Chain
(13 of 19) [CRLA-150/1989 & 50/1989]
Singh, went to the place of incident and saw Jethu Singh's dead
body lying on the ground. Then, they hid in the crops. Chain Singh
sent him to Dudod for informing Mod Singh. The witness and Babu
Singh went to Dudod and brought Mod Singh to the place of
incident. The witness went back to the place of incident in the
morning at about 8 O' Clock and showed the crime scene to the
police.
A suggestion was given to the witness that he and Jethu
Singh had as a matter of fact, gone to threaten Ratiya that he
should not give evidence. The witness insisted that they had just
gone to engage labourers. It was the first instance of him and
Jethu Singh going together to engage labourers. He, Jethu Singh
and Jora Ram did not go to the house of Ratiya. While Jethu Singh
was calling out for Ratiya, Maga Ram came there. They talked to
Maga Ram regarding farming matters. He could not precisely state
the direction from which the accused came. The witness was
confronted with his previous statement under Section 161 Cr.P.C.
(Ex.D/3) regarding the omission as to the location of injuries
inflicted to Jethu Singh. The witness could not explain the
omission. The witness was also confronted with another fact
recorded in his previous police statement (Ex.D/3) wherein, he
stated that they had gone to the Rail Bera for harvesting Raida
crop. The witness denied having given such version to the police.
13. The Investigating Officer (P.W.16) Devilal gave evidence
regarding the steps of investigation, recoveries and filing of
charge-sheet, etc. His evidence is formal and inconsequential for
deciding the issues involved in the case.
(14 of 19) [CRLA-150/1989 & 50/1989]
14. The evidence of the other witnesses examined by the
prosecution is also formal in nature and inconsequential for
deciding the controversy.
15. The postmortem report of Jethu Singh (Ex.P/1) and the
injury reports of the witnesses (Durga Ram (Ex.P/3), Jora Ram
(Ex.P/4) and Chimna (Ex.P/5)), were proved by Dr.
Laxmiroopchand Bhandari (P.W.1). The doctor took note of the
following injuries on the body of Shri Jethu Singh:-
"1. Incised wound 5" x 2½" x ½" deep transverse in
direction on the back of the scalp, 2" below occipital
protubrance.
2. Incised wound 2" x ½" x ½" just over occipital
protubrance.
3. Lacerated wound with depression 5" x 4" x 1½" on
left side of scalp over occipito-temporal region.
(There were also multi fractures of temporal and
occipital bone on left side).
4. Abrasion 2" x ¼" on left side of scalp.
5. Abrasion 4½ " x ¼" on the right side of back below
inferior angle of right scapula.
6. Abrasion 2½ " x ½" on the right side of back six inch
below right shoulder.
7. Incised wound 2" x ½" x ¼" just over nasion on
face.
8. Incised wound 4½" x 2½" x 1" (with multiple incised
wounds of different sizes over the injured area) on the
back of right leg 3" above left ankle joint. The injury
was transverse in direction.
9.Incised wound 5" x 2½ " x 1¼" (with multiple incised
wounds of different sizes over injury) on the back of
right leg 4" above right ankle joint. The injury was in
transverse direction."
The doctor stated that injuries No.1 to 7 were ante-mortem
and injuries No.8 to 9 were postmortem in nature. The injuries
(15 of 19) [CRLA-150/1989 & 50/1989]
No.1, 2, 7, 8 and 9 were caused by sharp weapons whereas, the
remaining injuries were caused by hard blunt object. The injury
No.3, located on the temporo occipital region was opined to be
sufficient in ordinary course of nature to cause death.
Durga Ram (P.W.10), suffered a contusion admeasuring 2"x
1½" on the left side of the back, just below the left shoulder joint.
Jora Ram (P.W.3), suffered a contusion admeasuring 2" x 2"
on left side of the back, 2" below the left shoulder.
Chamna Ram (P.W.5) suffered (a) Linear abrasion 2" in size
in front of left side of chest, 6" below left sterno clavicular joint,
(b) Abrasion admeasuring 1/2" x 1/2" on anterior aspect of right
palm just below right thumb.
16. On an overall appreciation of the evidence available on
record, it comes out that a criminal case for the offence
punishable under Section 307 IPC had been registered at the
instance of the absconding accused Madan Singh wherein, Maga
Ram and Ratta Ram were witnesses. Jethu Singh was closely
related to Madan Singh and it seems that both were inimical to
each other. Jethu took it upon himself to approach the witnesses
cited in the said criminal case presumably to persuade them
against giving evidence in favour of Madan Singh. For this
purpose, he took the assistance of Durga Ram and Jora Ram. They
reached the Rail Bera and called out for Ratta Ram who did not
respond. On this, Jethu Singh, gave an insinuation that he and his
maternal uncle Madan Singh might join hands and that the
witnesses should keep this in mind. The prosecution has not
proved any document pertaining to the previous criminal case
referred to supra. Thus, the prosecution has definitely, concealed
(16 of 19) [CRLA-150/1989 & 50/1989]
the material fact regarding the motive as well as genesis of the
incident. The witness Durga Ram (P.W.10), went to the extent of
giving a fictitious story regarding the purpose for which, he and
Jethu Singh had gone to the place of incident and stated that they
went there to engage labourers. On the contrary, Jora Ram (P.W.3)
and Maga Ram (P.W.4), clearly stated that Jethu Singh had come
to the place of incident for giving advise to the witnesses of the
previous criminal case registered at the instance of Madan Singh.
The incident took place in the dead of the night at about
12.00 A.M. Thus, there was no justifiable cause for convergence of
the deceased and the witnesses at Rail Bera. Considering the
above referred contradictions in the evidence of the prosecution
witnesses, their motive/purpose going to the place of incident
comes under a grave cloud of doubt. There is no possibility that
the accused could have had the knowledge that members of the
complainant party and the deceased Jethu Singh would be
collecting near the house of Ratta Ram in the odd hours of night.
Thus, it does not stand to reason that they would be able to reach
the said place at the same time after arming themselves for a full
fledged assault. It is hence clear that the reason for the presence
of the complainant party at the crime scene was totally concealed
by the prosecution witnesses and the true genesis of occurrence
has been withheld.
17. The eye-witnesses Jora Ram (P.W.3), Maga Ram (P.W.4),
Chimna Ram (P.W.5) and Durga Ram (P.W.10), have specifically
alleged that the fatal head injury was inflicted to Jethu Singh by
the accused Madan Singh. So far as the appellants are concerned,
they were allegedly armed with lathis and no significant injuries
(17 of 19) [CRLA-150/1989 & 50/1989]
were caused to either the deceased or the witnesses by blunt
weapon.
18. From the evidence of Chain Singh (P.W.2), it becomes clear
that Madan Singh had lodged a case for the offence punishable
under Section 307 IPC and in that case, Jethu Singh and Chain
Singh were arraigned as accused. Apparently, thus, Jethu Singh
had gone to the place of incident in order to influence the
witnesses Maga Ram and Ratta Ram, who were supposed to give
evidence on behalf of Madan Singh. It seems that Madan Singh
somehow got wind of this attempt of Jethu Singh and in all
probability, he alongwith the appellants must have gone there to
save the witnesses from being pressurized. In this process, a fight
must have broken out in which, Madan Singh inflicted the injuries
to Shri Jethu Singh, which proved fatal.
19. As we have concluded that the prosecution has concealed the
genesis of occurrence and that the absconding accused Madan
Singh and the accused appellants herein in all probability, went to
the place of incident to prevent Jethu Singh from threatening the
witnesses of the previous criminal case, the accused other than
Madan Singh cannot be held liable by virtue of Section 34 IPC
because, their objective in going to the place of incident was only
to assist Madan Singh in preventing Jethu Singh from threatening
the witnesses. It seems that in this process, Madan Singh became
overtly aggressive and inflicted the fatal injuries to Shri Jethu
Singh by a Dhariya. The injuries as caused to the witnesses Durga
Ram, Jora Ram and Chimna Ram, were simple in nature.
(18 of 19) [CRLA-150/1989 & 50/1989]
Thus, even if it is momentarily assumed that the accused
appellants herein inflicted blows of lathis to Jethu Singh, then too,
they can at best be held liable for causing simple hurt and not for
having the common object of committing murder of Shri Jethu
Singh.
20. As a consequence, conviction of the appellant Chanda Ram
as recorded by the trial court for the offence punishable under
Section 304 Part I IPC read with Section 34 IPC, cannot be
sustained. He is acquitted from the said charge. The accused
Chanda Ram has also been convicted by the trial court for the
offence punishable under Section 323 IPC and awarded 1 Year's
Rigorous Imprisonment for causing simple injuries to Durga Ram,
Jora Ram, Chimna Ram and the deceased Shri Jethu Singh. Thus,
the impugned judgment is affirmed to that extent.
21. The appeal No.50/1989, preferred by the appellant is allowed
in part. As a consequence, the appeal No.150/1989, preferred by
the State of Rajasthan is dismissed.
22. The accused appellant Chimna Ram was arrested on
27.03.1985 and he remained in custody throughout the trial.
Ultimately, he was released from custody on 06.05.1989 pursuant
to the order of suspension of sentence passed by this court in D.B.
Criminal Appeal No.50/1989. Thus, the appellant has already
suffered custodial period of more than 4 years. Thus, he need not
surrender. His bail bonds are discharged.
23. Record be returned to the trial court.
(19 of 19) [CRLA-150/1989 & 50/1989]
24. A copy of this order be placed in each file.
(FARJAND ALI),J (SANDEEP MEHTA),J
DEVESH THANVI/-
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