Rajasthan High Court

Bhupendra Singh vs State Of Rajasthan Through Pp on 21 February, 2022

Bench: Pankaj Bhandari, Anoop Kumar Dhand

            HIGH COURT OF JUDICATURE FOR RAJASTHAN
                        BENCH AT JAIPUR

                       D.B. Criminal Appeal No. 46/2018
     Bhupendra Singh S/o Shri Ratan Lal, R/o Salimpur, Police Station
     Nadbai, District Bharatpur, Raj. At Present Confined In The
     Sewar Jail, Bharatpur.
                                                                         ----Appellant
                                        Versus
     State Of Rajasthan Through PP.
                                                                      ----Respondent

Connected With D.B. Criminal Appeal (Sb) No. 259/2018 1 Bijendra Singh S/o Govind Singh, R/o- Village Bhutka, Police Station Nagar District Bharatpur.

2 Ghanshyam S/o Kherati, R/o- Village Bhutka, Police Station Nagar District Bharatpur.

----Appellants Versus State Of Rajasthan Through PP.

----Respondent

For Appellant(s) : Mr. Anil Kumar Upman (Criminal Appeal No. 46/2018) Mr. C.P. Bhandari (Criminal Appeal No.259/2018) For Respondent(s) : Mr. Javed Chaudhary, AGA

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Judgment

Date of Reserve ::: 14/02/2022 Date of Pronouncement ::: Feb. 21, 2022 (Per Anoop Kumar Dhand, J)

Reportable:

Both these criminal appeals arise out of a common

judgment, hence same are being decided by a common judgment.

(2 of 14) [CRLAD-46/2018]

Both the criminal appeals have been filed by the

accused appellants under Section 374(2) Cr.PC against the

judgment dated 11.01.2018 passed by the Court of learned

Additional Sessions Judge No.2 Bharatpur (for short 'the learned

trial court') in Sessions Case No.42/2016 (State of Rajasthan v.

Bijendra & Ors.), whereby the learned trial court while acquitting

appellants Bijendra Singh & Ghanshyam for the offence under

section 302 IPC, extended benefit of probation under Section 4 of

the Probation of Offenders Act 1958 (for short 'the Act of 1958')

for the offence under sections 341, 323 and 325 IPC and directed

them to deposit compensation of Rs. 25,000/- each, under Section

5 of the Act of the Probation of Offenders Act, 1958 and also

directed that out of the said amount of compensation, Rs.40,000/-

be paid to the wife of the deceased Smt. Neeraj. The learned trial

court vide impugned judgment dated 11.01.2018 convicted and

sentenced the accused appellant Bhupendra as under:-


Conviction for        Sentence             Fine Amount           Default       in
the      offence      Awarded                                    payment of fine
under Section
 341 IPC           One     month                     -                  -
                   simple
                   imprisonment
323 IPC            One       year                    -                  -
                   rigorous
                   imprisonment
325 IPC               Three years'               1000/-            One month
                   rigorous                                         rigorous
                   imprisonment                                   imprisonment
302 IPC            Life                        50,000/-            Six months'
                   imprisonment                                      rigorous
                                                                  imprisonment

All the sentences were ordered to run concurrently.

(3 of 14) [CRLAD-46/2018]

Briefly, the facts arising out from the written report

(Ex.P1) submitted by informant Rameshwar (PW1) are that on

7.7.2014, 'Barat' of Satish and Lokesh, sons of Ramdhan Jatav

came to Bharatapur Chandan Garden Marriage Home, Near

Sogariya Mohalla, Bharatpur. In the said 'Barat' his son Vikram

Singh also came. In the night, on 8.7.2014 at about 1.30 A.M.,

he received a telephonic call of Bhoor Singh Jatav who told that

his son has expired in a quarrel taken place in 'Barat'.

Immediately after getting the information, he at around 3:00 p.m.

reached Government Hospital, Bharatpur, where Bhoor Singh,

Sangram Singh, Sher Singh, Sunil and other 'baratis', residents of

the vicinity met him and they told that at the time of departure of

Barat, Bachchu Singh, Govinda, Ghanshyam, Bijendra, Ramdhan,

Kedar, Kailash, Prakash gave beating to his son- Vikram Singh by

'Sariya' (iron rod) and also gave beating from kicks and fists.

Bachchu Singh was armed with 'Sariya' (iron rod) and rest of the

persons gave beating to Vikram Singh from kicks and fists. When

Sangram Singh, Sher Singh, Sunil and Bhoor Singh were tried to

intervene then these persons also gave beating to them with kicks

and fists, due to which these persons also sustained injuries. In

injured condition Vikram Singh was taken to Arora Hospital, where

he was declared dead. Dead body of Vikram Singh was kept in

the mortuary of the Government Hospital. His son Vikram Singh

was murdered by Bachchu Singh, Govinda, Ghanshyam, Vijendra,

Ramdhan, Kedar, Kailash and Prakash from 'Sariya' (iron rod) and

kicks and fists. Upon this written report (Ex.P1), first information

report No.574/2014 (Ex.P23) was registered at Police Station,

Mathura Gate, District Bharatpur for the offence under Sections

143, 323, 341 and 302 IPC against the accused persons and other

(4 of 14) [CRLAD-46/2018]

co-accused persons. After conclusion of investigation the Police

submitted charge-sheet against Bhupendra Singh, Bijendra Singh

and Ghanshyam for the offence under Sections 323, 341, 325,

302 IPC. Since the co-accused Bachchu Singh was absconding,

therefore, investigation was kept pending against him under

Section 173(8) Cr.PC. Learned Trial Court framed the charges

against the above-named accused persons for the offence under

sections 323, 341, 325 and 302/34 IPC, who denied the charges,

pleaded not guilty and claimed trial.

During the course of the trial, in support of its case the

prosecution examined as many as 17 witnesses and exhibited 50

documents. In defence, on behalf of the accused-appellants, no

witness was examined but 7 documents were exhibited. The

accused-appellants were examined under Section 313 Cr.P.C. and

they controverted the evidence adduced by the prosecution

witnesses against them during the course of the trial. The accused

appellants in their statements recorded under section 313 Cr.P.C.

specifically stated that they have been falsely implicated in the

case as they are innocent.

Learned trial court after hearing the arguments of both

the sides, passed the impugned judgment of conviction. The

accused appellants aggrieved and dissatisfied with the impugned

judgment passed by the learned trial court, have preferred instant

criminal appeals before this Court.

Learned counsel for the accused appellants vehemently

submitted that the accused appellants are innocent, they have not

committed any offence and they have been falsely implicated in

the instant case. Counsel further submitted that the prosecution

(5 of 14) [CRLAD-46/2018]

has failed to prove its case against the accused appellants beyond

reasonable doubt.

Learned counsel for the accused appellant Bhupendra

Singh submitted that appellant Bhupendra Singh was not named

in the FIR and his name was introduced by the other witnesses

when the police statements were recorded. Counsel further

submitted that as per version of the eye witnesses they were

present when the FIR was lodged by the informant, hence it is a

case of over implication. Learned counsel further submitted that

the date of the alleged incident is the intervening night of

7.7.2014 and 8.7.2014 while he was arrested on 20 th August,

2014 and after 41 days of the incident, recovery of 'lathi' was

made at the instance of Bhupendra Singh on 21st August, 2014.

Counsel further submitted that the months of July and August are

rainy seasons and the recovery of 'lathi' has been made from an

open place. Counsel submitted that no prudent person can believe

that blood may remain on the 'lathi' even during the rainy season.

Hence the possibility of false implication of accused appellant

Bhupendra Singh can be ruled out. Counsel submitted that the

deceased has sustained only one fatal blow on his head which is

the cause of death. Counsel submitted that the single blow on the

head of deceased has been assigned to two accused persons

namely; Bachchu Singh and Bhupendra Singh. During the course

of trial, the prosecution witnesses have tried to save co-accused

Bachchu Singh and they have implicated the accused appellant-

Bhupendra Singh falsely. Counsel further submitted that one

injury was assigned to two co-accused persons. Hence, no

offence under Section 302 IPC is made out against accused

appellant Bhupendra Singh.

(6 of 14) [CRLAD-46/2018]

Counsel argued in the alternate that there was neither

any intention nor any motive on the part of accused appellant

Bhupendra Singh to cause the incident. Counsel submitted that

the case of accused appellant Bhupendra Singh does not travel

beyond Section 304 Part-II IPC. The conviction of the accused

appellant Bhupendra Singh is based on statements of the eye

witnesses, whose presence on the spot is highly doubtful. Lastly,

counsel argued that there is contradiction about the weapon used

by the appellant at the time of incident. Counsel submitted that

some of the witnesses have stated that the accused appellant

Bhupendra Singh committed the incident by using 'Sariya' while

'Lathi' was recovered at his instance. Hence serious doubt has

been created by the prosecution witnesses about the truth of the

incident.

Per contra, learned Public Prosecutor vehemently

opposed the submissions advanced by the counsel for the accused

appellants and submitted that PW-2 Sher Singh, PW-5 Ghanshyam

and PW-7 Sangram Singh are injured eye witnesses of the incident

and PW-8 Sunil eye witness of the incident, who have proved the

involvement of the appellants beyond reasonable doubt.

Submissions have been made that the statements of these

witnesses have been fully corroborated by the recovery of the

weapon of the offence which has been proved and, therefore,

based on the strength of the testimony of these witnesses, the

prosecution has been able to prove the offences alleged against

the accused-appellants beyond reasonable doubt and, therefore,

the trial Court was justified in convicting the accused-appellant

Bhupendra Singh for the offence under Sections 341, 323, 325

and 302 IPC and convicted the appellants Bijendra Singh and

(7 of 14) [CRLAD-46/2018]

Ghanshyam for the offence under Sections 341, 323 and 325 IPC

by the impugned judgment. Thus, the impugned judgment passed

by the trial court warrants no interference.

We have considered the rival submissions made at the

Bar and also gone through the record of the trial Court as well as

the judgment dated 11.1.2018 impugned herein.

PW-1 Rameshwar is father of the deceased- Vikram

Singh, who submitted written report (Ex.P-1) on the basis of the

information received by him. As per the testimony of this witness,

his son went in a 'Barat' at Bharatpur on 07.07.2014 where he

expired due to quarrel taken place in the said 'Barat'. Ghanshyam,

Sangram Singh, Sunil, Sher Singh and others told him that

Govinda, Bijendra, Ghanshyam, Bhupendra, Ramdhan, Kailash and

Prakash gave beating to Vikram from 'Saria' and fist blows. When

Ghanshyam, Sher Singh and Sangram tried to intervene, they

were also beaten, due to which injuries were caused to them.

Perusal of the statement of this witness reveals that he

is not an eye-witness of the occurrence and he lodged the report

on the basis of the information furnished by other eye-witnesses.

PW-2-Sher Singh, PW-5- Ghanshyam and PW-7-

Sangram Singh are injured eye-witnesses of the incident in whose

presence the incident had taken place. When they tried to

intervene to save the deceased, they were also beaten and

injuries were also inflicted to them. PW-2 Sher Singh has stated

that on 07.07.2014, the 'Barat' of Satish and Lokesh came at

Bharatpur in Chandan Garden Marriage Home, where dispute

arose and quarrel took place. Bhupendra caused injury by 'lathi'

on the person of Vikram. The co-accused Ghanshyam, Gajendra

and Govinda inflicted injuries to the other injured persons. They

(8 of 14) [CRLAD-46/2018]

also gave beating to him and caused injuries to his index finger

as also on right shoulder, which is clear from the injury report

(Ex.P-8). PW-5 Ghanshyam is also an injured eye-witness who

sustained injuries and fracture in this incident. He has stated that

Bijendra and Bhupendra were armed with 'lathies' and they

started beating the 'baraties' and inflicted injuries to them. The

injuries sustained by him are grievous in nature and the injury

report is Ex.P10 and the X-Ray report is Ex.P17. Both the reports

clearly indicate that he sustained fracture of ulna bone. Similarly,

PW-7- Sangram Singh, an injured eye-witness of the incident, also

sustained injuries and fracture of ulna bone in this occurrence.

This witness had specifically stated that Bhupendra, Bijendra,

Govinda and Ghanshyam were beating Sher Singh and

Ghanshyam. Bhupendra caused injury on the head of Vikram

from 'Saria'. Bijendra was armed with 'lathi'. All these accused

gave beating to Ghanshyam and Sangram Singh, due to which

they sustained injuries. Ex.P13 is his injury report which indicates

that he had sustained injuries. Ex.P16 is his X-Ray report which

also indicates that he had sustained fracture of ulna bone. Apart

from these injured eye-witnesses, PW-6 Murari Lal, PW-8 Sunil

and PW-9 Bhoor Singh are other eye-witnesses of the incident

who have proved that the appellants have committed the incident

and caused injuries.

PW-3 Harish and PW-4 Harishankar did not support the

prosecution story and they have turned hostile.

PW-10 Dr. Sunil Pathak has proved the Post-mortem

report (Ex.P14) which indicates that Vikram died due to head

injury. He has also stated in his cross-examination that there was

no fracture below the injury No.3 and the same was simple in

(9 of 14) [CRLAD-46/2018]

nature. This witness has not specifically stated that the injury

No.4 was sufficient to cause death of the deceased in the ordinary

course of nature, though this injury was on the head of the

deceased.

PW-11 Dr. R.D. Sharma examined the injured- Sher

Singh and prepared his injury report but he did not find any

fracture. He has also examined the injured Sangram Singh and

Ghanshyam and found fractures of ulna bone on the person of

both these persons. He prepared their X-Ray reports which are

Ex.P16 and Ex.P17 respectively. Similarly, PW-17 Dr. Phool Singh

has examined these injured persons and prepared their injury

reports as Ex.P8, Ex.P10 and Exh.P13. From the injury reports, it

is clear that these persons have sustained injuries.

During the course of investigation, a 'lathi' was

recovered at the instance of the appellant Bhupendra. Vide

Ex.P31, PW-16- Mahaveer Singh, Investigating Officer, after

seizure of the 'lathi', sent the same for examination to Forensic

Science Laboratory (FSL) and as per FSL report (Ex.P47), there

was human blood on the 'lathi'.

PW-15 Pooja Avana recorded the statements of PW-4

Harishankar and PW-3 Harish, who did not support the

prosecution story and turned hostile. She has also recorded the

statement of PW-6 Murari Lal but in her cross-examination she

has stated that the name of the Bhupendra was not found to be

involved in the incident in the statements of these three

witnesses. PW-16 Mahaveer is the Investigating Officer who

conducted investigation and submitted charge-sheet against the

appellants for the offences stated above.

(10 of 14) [CRLAD-46/2018]

Perusal of the evidence available on record indicates

that the incident arose on a very trivial issue regarding return of

'Barat' in the Bus, which resulted in their engaging in heated

altercation and suddenly at the spur of the moment, the appellant

Bhupendra inflicted a single injury on the head of the deceased

Vikram by 'lathi' and the appellants Bijendra Singh and

Ghanshyam caused injury and fracture on the person of Sangram

Singh and Ghanshyam.

On a careful perusal of the testimony of the material

prosecution witnesses, we find that there was no premeditation to

the incident and the fatal injury was inflicted to Vikram by the

appellant Bhupendra by 'lathi', which is commonly carried in

villages. Based on which, it cannot be said that he was carrying

'lathi' with him with intention to commit the crime. The single

injury inflicted by the appellant Bhupendra proved fatal, as has

been deposed by PW-10 Dr. Sunil Pathak, who conducted the Post-

mortem upon the body of the deceased and prepared the Post-

mortem report (Ex.P14).

Further, it is important to notice that Dr. Sunil Pathak

(PW10) in his cross-examination opined that the Medical Board

has not mentioned injury No.4 i.e. injury on the head 'sufficient to

cause death in the ordinary course of nature'. He has further

stated in his cross-examination that for injury No.3, there was no

excess pressure and the same was treated as simple in nature

which leads to draw inference that the accused had not repeated

any blow and had apparently no intention to kill Vikram. Besides

this, as per the information of this witness, the injury No.4 was

not sufficient in the ordinary course of nature to cause death of

(11 of 14) [CRLAD-46/2018]

Vikram Singh. Therefore, in our opinion, the offence cannot travel

beyond Section 304 Part-II IPC.

The Hon'ble Apex Court in Jugut Ram v. State of

Chhattisgarh, reported in 2020 Cr.L.R. (SC) 1100, has held

as under:-

"7. A lathi is a common item carried by a villager in this country, linked to his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. In a case like the present, of an assault on the head with a lathi, it is always a question fact in each case whether there was intention to cause death or only knowledge that death was likely to occur. The circumstances, manner of assault, nature and number of injuries will all have to be considered cumulatively to decipher the intention or knowledge as the case may be. "

The Hon'ble Apex Court while dealing with the case of

Jugut Ram (supra) took into consideration the Judgment delivered

by the Hon'ble Apex Court in Joseph v. State of Kerala,

reported in (1995) SCC (Crl.) 165, in which it was observed as

under:-

"3. ....The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years' RI."

The Hon'ble Apex Court has held in the case of Chamru Budhwa vs. State of Madhya Pradesh, reported in AIR 1954 SC 652 that 'the appellant dealt a blow on the head of the deceased with a lathi and which proved fatal. The injury was medically opined sufficient in the ordinary course to cause death.

(12 of 14) [CRLAD-46/2018]

Conviction under Section 302, IPC followed.' The Hon'ble Apex Court in the aforesaid case has observed as under:

"5. It now remains to consider whether the offence which he committed falls within the first part or the second part of Section 304 of the Indian Penal Code. When the fatal injury was inflicted by the appellant on the head of the deceased by only one blow given in the manner alleged by the prosecution it could as well be that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304 of the Indian Penal Code.

6. We accordingly allow the appeal to this extent that the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence of transportation for life awarded to him will be set aside, but the appellant will be convicted of having committed the offence under Section 304 Part II of the Indian Penal Code and will be sentenced to seven years' rigorous imprisonment."

In the case of Gurmukh Singh vs. State of Haryana (2009) 15 SCC 635, the Hon'ble Supreme Court has held that "the deceased died three days later after an assault on the head with a lathi opined to be sufficient in the ordinary course of nature to cause death. Holding that the assault was made on the spur of the moment without premeditation the conviction was altered from one under Section 302 to Section 304 Part II and a sentence of seven years was handed. Similarly in Mohd. Shakeel vs. State of A.P., (2007) 3 SCC 119, the appellant had caused only one injury and had suffered injury himself also. Altering the conviction from under Section 302 IPC to 304 Part II, the appellant was sentenced to the period undergone since 1999."

Hon'ble Supreme Court in the case of Shankar @

Kalu V. State of Madhya Pradesh reported in 1979 SCC

(Criminal) 632 has held that 'where occurrence took place

suddenly and the accused caused injury with a dagger on the

neck, altered the conviction from Section 302 IPC to Part II of

Section 304 of IPC'. Similarly in the case of Kala V. State of

(13 of 14) [CRLAD-46/2018]

Rajasthan reported in 1992 Criminal Law Report

(Rajasthan) 178, the Division Bench of this Court, wherein the

accused had struck the arrow on the chest of the deceased

resulting in his death on finding that there was no intention on the

part of the accused to cause death of the victim, converted