Rajasthan High Court - Jodhpur
Madanlal vs State on 11 January, 2022
Bench: Sandeep Mehta, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 185/2018
1. Madhuram S/o Sh. Javrilal, Aged About 34 Years, B/c
Prajapat, Hanuman Nagar, Chakanion Ki Dhani Jhalmand ,
P.s. Basni, Jodhpur (Raj.)
2. Sumer S/o Sh. Javrilal, Aged About 54 Years, B/c
Prajapat, Hanuman Nagar , Chakanion Ki Dhani
Jhalmand, P.S. Basni , Jodhpur (Raj.)
3. Pannaram S/o Sh. Badriram, Aged About 49 Years, B/c
Prajapat, Hanuman Nagar, Chakanion Ki Dhani Jhalmand ,
P.S. Basni, Jodhpur (Raj.)
4. Tarachand S/o Phusaram, Aged About 25 Years, B/c
Prajapat, Hanuman Nagar, Chakanion Ki Dhani Jhalmand,
P.S. Basni, Jodhpur (Raj.)
5. Jetharam S/o Sh. Hapuram, Aged About 54 Years, B/c
Prajapat, Hanuman Nagar, Chakanion Ki Dhani Jhalmand,
P.S. Basni, Jodhpur (Raj.)
6. Birmaram S/o Sh. Chhinaram, Aged About 31 Years, B/c
Prajapat, Hanuman Nagar, Chakanion Ki Dhani Jhalmand ,
P.S. Basni, Jodhpur (Raj.)
----Appellants
Versus
State Of Rajasthan, Through PP
----Respondent
Connected With
D.B. Criminal Appeal (Db) No. 164/2018
Madanlal S/o Sh. Hapuram, Aged About 50 Years, B/c Prajapat,
R/o Hanuman Nagar, Chakaniyon Ki Dhani, Jhalamand, P.s.
Basni, Jodhpur
----Appellant
Versus
State, Through PP
----Respondent
For Appellant(s) : Mr. Vineet Jain & Mr. Ashok Panwar
(In Cr. Appeal No.185/2018)
Mr. Dhirendra Singh & Mr. Rajiv
(Downloaded on 11/01/2022 at 09:14:48 PM)
(2 of 40) [CRLAD-185/2018]
Bishnoi (In Cr. Appeal No.164/2018)
For Respondent(s) : Mr. B.R. Bishnoi, AGC
Mr. J.S. Choudhary, Sr. Advocate
assisted by Shri Pradeep Choudhary
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE RAMESHWAR VYAS
JUDGMENT
Judgment pronounced on ::: 11/01/2022
Judgment reserved on ::: 13/09/2021
(REPORTABLE)
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellants herein have been convicted and sentenced as
below vide judgment dated 07.08.2018 passed by the learned
Additional District & Sessions Judge No.3, Jodhpur Metro in
Sessions Case No.10/2013 (153/2011):
Offences Sentences Fine Fine Default
sentences
Section 148 IPC 2 Years' S.I. Rs.1,000/- 1 Month's S.I.
Section 323/149 6 Months' S.I. Rs.500/- 1 Month's S.I.
IPC
Section 325/149 3 Years' S.I. Rs.5,000/- 3 Months' SI
IPC
Section 302/149 Life Imprisonment Rs.20,000/ 6 Months' SI
IPC -
(All the sentences were ordered to run concurrently)
2. Being aggrieved of their conviction and sentences, the
appellants have preferred these two appeals under Section 374(2)
Cr.P.C.
(3 of 40) [CRLAD-185/2018]
3. Facts relevant and essential for disposal of the appeal are
noted herein below:
Sub Inspector Deva Ram (PW.21) recorded the Parcha Bayan
(Ex.P/2) of the complainant Malaram (PW.6) on 03.07.2011 at
Mathura Das Mathur Hospital, Jodhpur wherein, the complainant
alleged that in the morning, Rawalram (PW.5) had been
threatened by Madhuram, Tarachand, Shrawanram, Sumer,
Jetharam and Pannaram on the premise that since he had given
out their names in the incident involving assault on a roadways'
bus driver, they would take revenge by killing him. At around
5:00-5:30 pm, the complainant was sitting at his shop and
Rawalram was sitting outside the shop. At that time, Madhuram
S/o Shri Javrilal, Sumer S/o Shri Javrilal, Pannaram S/o Shri
Badriram, Tarachand S/o Shri Phusaram and Jetharam S/o Shri
Hapuram, armed with swords, hockeys, lathis and iron rods came
there and launched an assault on Rawalram (PW.5) with the
intention of killing him. Malaram (PW.6) intervened on which, he
too was beaten up. He and Rawalram cried out for help, upon
which, his elder brother Kishan and Virendra @ Bablu (PW.4) came
around and made an attempt to rescue them. On seeing Kishan
and Virendra @ Bablu, the assailants, turned their wrath towards
these two persons and attacked them. They also scattered the
goods lying in his shop. On hearing the commotion, Tulsiram
(PW.10), Ramesh (PW.1), Manish (PW.3) and Arjun (PW.2) came
there and intervened to rescue the complainant and his
companions. He alleged that the assailants had launched the
assault in order to wreak vengeance on account of an old land
dispute and also on the premise that they (the appellants) had
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been named in the assault launched on the roadways bus driver.
The assailants thrashed them and caused serious injuries with an
intention of killing. The complainant got hurt on his head and leg.
Madhuram and Jetharam had hit Kishan on his head with iron
rods, causing him serious injuries which resulted in profuse
bleeding. Rawalram also sustained injuries on his head, hands and
other parts of body. Virendra @ Bablu (PW.4) had also suffered
head and leg injuries in the incident. The assailants, had come
with an intention to kill them and had also damaged his shop and
the articles lying therein.
On the basis of this report, an FIR No.246/2011 (Ex.P/32)
came to be registered at the Police Station Basni, Jodhpur for the
offences punishable under Sections 147, 148, 149, 307, 323 &
427 IPC and investigation was commenced. Kishan was taken to
the M.D.M. Hospital, Jodhpur for treatment where he was declared
dead. Autopsy was conducted on the dead body of Kishan. The
injured persons were also examined and their injury reports were
prepared. Some of the accused assailants had also received
injuries in the incident and they too were provided treatment in
the hospital. Since Kishan passed away, offence under Section 302
IPC was added to the case. The accused persons were arrested
and as usual, acting on the informations, allegedly provided under
Section 27 of the Evidence Act, the Investigating Officer
proceeded to effect recoveries of the weapons and clothes etc. of
the accused persons. After concluding investigation, a charge
sheet came to be filed against the accused appellants Madhuram,
Sumer, Pannaram, Tarachand, Jetharam, Madanlal and Birmaram
for the offences punishable under Sections 147, 148, 323, 325,
307 and 302/149 IPC. As the offences under Sections 307 &
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302/34 IPC were exclusively triable by Court of Sessions, the case
was committed to the Court of Sessions Judge, Jodhpur Metro
from where it was transferred to the Court of Addl. Sessions Judge
No.3, Jodhpur Metro for trial where charges were framed and read
over by the trial court to the accused persons in the following
manner:-
Name of the accused Offences Under Sections
Madhuram and Jetharam 147, 148, 323/149, 325/149,
307/149, 302/149 and 302 IPC
Sumer, Pannaram, Tarachand, 147, 148, 323/149, 325/149,
Madanlal and Birma Ram
307/149, 302/149 IPC
The accused pleaded not guilty and claimed trial. The
prosecution examined 23 witnesses and exhibited 42 documents
to prove its case.
Upon being questioned under Section 313 Cr.P.C. and when
confronted with the circumstances appearing in the prosecution
evidence, the accused denied the same, claimed to be innocent
and contended that as a matter of fact, the members of the
complainant party were the aggressors. They had given false
evidence because of a previous dispute over agricultural land. In
his examination under Section 313 Cr.P.C., accused Madhuram
stated that Rawalram (PW.5) had called him to participate in talks
for settling the disputes. He went to the shop of Malaram (PW.6)
at about 5 o' clock in the evening and talked with Malaram and
Rawalram for about 15-20 minutes. When no resolution was
forthcoming, Madhuram refused to talk any further, on which
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Malaram and Rawalram started hurling profanities towards him.
Rawalram picked up a brick lying outside the shop and hit it on the
head of Madhuram. The information of the quarrel reached Sumer,
on which, he came around to save Madhuram. In the meantime,
Kishan and Virendra @ Bablu also came to the shop of Malaram.
Kishan exhorted that Madhuram should be killed. On hearing this,
he (Madhuram) and his companions started running away. Kishan
picked up a lathi and pursued them. In the meantime, Dayal and
Jetharam also came to the spot. They ran towards the other side
of the road. Persons from the complainant party threw brickbats
towards them due to which, he (Madhuram) and his companions
received injuries. In this melee, Malaram, Kishan, Virendra and
Rawalram also received injuries. Madhuram and his companions
ran towards the Meera Nagar lane where they were pursued by
the members of the complainant party and were beaten up. The
other accused persons also gave almost similar statements. Eight
witnesses were examined and twenty-four documents were
exhibited in defence.
After hearing the arguments advanced by learned Public
Prosecutor, complainant's counsel and the defence counsel and
appreciating the material available on record, the trial court
proceeded to convict and sentence the appellants as above.
Hence, these two appeals.
4. Learned counsel Shri Vineet Jain and Shri Dhirendra Singh,
representing the appellants vehemently and fervently urged that
the entire prosecution case is false and fabricated. The
complainant and the other material prosecution witnesses have
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suppressed the true genesis of the occurrence. As a matter of
fact, a land dispute was going on between the parties. Rawalram
(PW.5) had called Madhuram to the shop of Malaram (PW.6) on
the pretext that they would talk and settle the land dispute
amicably. Accordingly, Madhuram went there in a bonafide belief
that the offer made by Rawalram was genuine. When the
complainant Malaram and Rawalram made absurd demands for
settlement of the dispute and Madhuram did not accede to it, a
verbal altercation ensued between the parties. Rawalram and
Malaram became offensive and started beating Madhuram. When
Tarachand, Sarwan, Sumer, Setharam and Pannaram came to
know about the squabble, they also reached the place of incident.
In the meantime, the quarrel had blown up into an all out fight.
Kishan and Virendra arrived there in the garb of interveners but
they also joined the fighting. The members of the complainant
party chased the accused persons namely Madhuram, Dayal and
Jetharam who had rushed into Meera Nagar lane in an attempt to
save themselves from graver harm. However, the members of the
complainant party persued and a free fight broke out in which,
members of the accused party as well as members of the
complainant party received large number of injuries. However, the
injuries inflicted to Kishan were unfortunately graver than others
and he expired as a result thereof. Shri Jain and Shri Singh
submitted that omission of names of the accused Madanlal and
Birmaram in the FIR is fatal to the prosecution and as the
complainant and the other witnesses have tried to improve the
version as set out in the FIR by implicating these two accused at a
later point of time, manifestly, their evidence is tainted and
unreliable. They further urged that even if the allegations as set
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out in the FIR and in the evidence of the material prosecution
witnesses are considered, admittedly, the fight initiated between
Madhuram and some of his companions on the one side and
Rawalram on the other side. At that point of time, some minor
injuries were caused to Rawalram. Malaram also joined the fray
and he too got injured. Kishan and Virendra @ Bablu came to the
spot as interveners whereafter, the incident took the shape of a
free-fight between two groups. It was also contended that the
prosecution evidence does not give any indication whatsoever that
the accused persons were present at the spot after forming an
unlawful assembly. They urged that when an overall appreciation
of the evidence of the prosecution witnesses is undertaken, it
becomes clear that the members of the complainant party as well
as the members of the accused party, reached the shop of
Malaram from different directions and at different moments. Some
of the witnesses even did not allege that the accused other than
Madhuram and Jetharam were armed with any weapon and thus,
apparently the conviction of the accused appellants for the offence
under Section 302 IPC with the aid of Section 149 IPC is totally
illegal because, the concept of unlawful assembly cannot be
applied in a case of free fight. They further urged that a number of
accused persons, received significant injuries in this very incident.
None of the prosecution witnesses, offered any plausible
explanation for the injuries caused to the accused in the same
incident and as such, the evidence of the witnesses deserves to be
discarded. Shri Jain made two alternative submissions:-
(A) that the accused were acting in exercise of right of private
defence and they raised arms in order to save themselves
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from the attack launched upon them by the members of the
complainant party.
(B) that even if the allegations, as set out in the evidence of the
prosecution witnesses are accepted, the injuries were
apparently inflicted to the deceased Kishan in a free-fight
where both sides were wielding weapons and as such, the
offence, attributed to the accused-appellants Madhuram and
Jetharam, would not travel beyond Section 304 IPC. In
support of this contention, Shri Jain relied upon the following
judgments:-
(1) Abani K. Debnath & Anr. Vs State of Tripura :
(2005) 13 SCC 422
(2) Babu Ram & Ors. Vs State of Punjab : (2008) 3
SCC 709
(3) Ratnaram Nayak & Ors. Vs State of Rajasthan :
2019 (3) Cr.L.R. (Raj.) 1210
Shri Jain and Shri Dhirendra Singh further urged that the
motive behind the incident as portrayed in the FIR was that the
members of the accused party were angered by the introduction
of their names in a so-called incident involving assault on a
roadways' bus driver and that they held the members of the
complainant party responsible for the same. It was contended that
no proof either documentary or oral was presented by the
members of the complainant party nor could the IO collect any
material to fortify this allegation. It was thus argued that the
entire theory of the motive as portrayed by the complainant party
is falsified and consequently, the genesis of the occurrence comes
under a cloud of doubt. They further urged that there is no
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averment in the FIR that the injuries were inflicted to Kishanlal in
the Meera Nagar lane. This theory has been built up by way of a
sheer improvement. They further urged that the fact that the first
informant Malaram (PW.6) did not allege in his Parcha Bayan
(Ex.P/2) that he had seen Kishan being assaulted in the lane of
Meera Nagar, clearly establishes that Malaram never saw the said
incident and the entirety of allegations set out in the FIR are
cooked up and unworthy of credence. It was also contended that
the so-called eyewitnesses Tulsiram (PW.10), Ramesh (PW.1),
Manish (PW.3) and Arjun (PW.2) are cooked up witnesses and they
were actually not present at the spot of occurrence. They reside at
places far distant from the location where the incident took place,
and as such, there was no reason for these witnesses to be
present at the spot at the time of incident. They must have
reached much later upon hearing about the incident and were
planted as eyewitnesses in order to lend assurance to the fictitious
prosecution story. On these submissions, learned counsel for the
appellants sought acceptance of the appeals and implored the
Court to either completely acquit the appellants; in the
alternative, set aside their conviction for the offence under Section
302 IPC with the aid of Section 149 IPC, and to acquit the
appellants Sumer, Pannaram, Tarachand, Madanlal and Birmaram
completely and tone down the conviction of the appellants
Madhuram and Jetharam to one under Section 304 Part-I IPC.
5. Per contra, learned Public Prosecutor and Shri J.S.
Choudhary, learned Senior Counsel appearing for the complainant,
assisted by Shri Pradeep Choudhary, vehemently and fervently
opposed the submissions of the counsel representing the
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appellants. They urged that the accused formed an unlawful
assembly, armed themselves fully and went to the shop of
Malaram (PW.6) with the sole objective of killing the members of
the complainant party. They pointed out that the defence has itself
placed on record the documents pertaining to revenue litigation
instituted inter se between the parties. Shri Choudhary pointed
out that the reason behind the assault i.e. the existing land
dispute has clearly been mentioned in the FIR itself and thus, the
motive attributed to the accused for committing the offence is well
established. He further contended that trivial omissions in the FIR
and insignificant contradictions in the evidence of the prosecution
witnesses have to be ignored because the assault was made in a
pre-planned manner and as Malaram's brother Kishan had
received grave life threatening injuries in the incident, it could not
be expected of him to set out a photographic version of the
incident in the Parcha Bayan (Ex.P/2). However, the other
eyewitnesses, whose presence at the spot was absolutely natural,
were examined by the Investigating Officer, soon after the incident
and they, clearly stated that the accused pursued deceased Kishan
to the Meera Nagar lane where he was surrounded and brutally
assaulted by the accused Madhuram and Jetharam who were
armed with deadly weapons i.e. iron rods. Repeated injuries were
inflicted on the head of Kishan which led to his death. Shri
Choudhary and the learned Public Prosecutor urged that even if it
is assumed for a moment that the accused persons did not reach
the place of incident in a group, then also, they have to be held
responsible for their individual acts. So far as the accused
Madhuram and Jetharam are concerned, there is a distinct
allegation of the material prosecution witnesses that these two
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accused, pursued Kishan to the lane in Meera Nagar and there,
they belaboured him with deadly weapons like iron rods. Repeated
blows of dangerous heavy weapons viz. iron rods, were inflicted
on the head of the deceased which establishes beyond all manner
of doubt that the intention of the two accused persons was
unquestionably to kill Shri Kishan. The case of these two accused
does not fall within any of the exceptions provided under Section
300 IPC and hence, there is no merit in the prayer of the
appellants' counsel that the offence under Section 302 IPC for
which the accused have been punished, should be toned down.
They thus, implored the Court to dismiss both these appeals in
toto.
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. When we consider the allegations as set out in the FIR
(Ex.P/32), it is clearly borne out that the names of the accused
Madanlal and Birmaram are not mentioned therein even though,
the Parcha Bayan (Ex.P/2) of Malaram, on the basis whereof the
FIR was registered, came to be recorded at about 9 PM i.e. after
more than 4 hours of the incident. It is not disputed that Madanlal
and Birmaram were previously known to the members of the
complainant party. Malaram, the complainant (PW.6) and some of
his companions who have been portrayed to be eye-witnesses of
the incident were present with him at the hospital and thus, we do
not find any justification behind omission of the names of these
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accused persons in the Parcha Bayan (Ex.P/2) and to that extent,
the prosecution case comes under a cloud of doubt.
8. Now we proceed to consider the testimony of the prosecution
witnesses. The trial court recorded evidence in two parts because
the accused Madanlal and Birmaram who were not named in the
FIR were charge-sheeted subsequently and hence, statements of
some of the witnesses were recorded twice.
9. Firstly, we take up the evidence of first informant Malaram
(PW.6). The witness alleged in his sworn testimony, that on 3 rd
July, 2011, Madhuram, Jetharam, Pannaram, Tarachand and
Sumer were implicated in an incident of beating/scuffle with a
roadways' bus driver. These accused suspected the complainant
party for divulging their names and hence, they threatened to
take revenge. He was working at his shop at about 5:00-5:30 pm.
Rawalram was sitting outside his shop. At that time, Madhuram,
Jetharam, Sumer, Pannaram, Birmaram, Madanlal and Tarachand
arrived there after forming an unlawful assembly. They were
armed with swords, lathis, hockeys and iron rods and immediately
on reaching the shop of the complainant, they started assaulting
Rawalram. He went out to intervene on which he too was beaten
up. They both raised an alarm on which Kishan and Virendra
came and tried to intervene. The accused persons diverted their
attention towards Kishan and Virendra and started assaulting
them as well. Kishan and Virendra ran towards Meera Nagar Lane
for saving themselves. The accused followed and accosted them
near the houses of Mishrilal and Birmaram. Accused Jetharam and
Madhuram inflicted blows of iron rods and bars to Kishan and
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Virendra. Then the other accused persons joined in the assault.
Tulsiram, Ramesh, Manish and Arjun went there and intervened to
save the victims. The witness alleged that he sustained injuries on
his head and right palm in the incident. Rawalram was also
inflicted injury on his head and hands. The accused had launched
the assault because of a long-standing land dispute. His shop was
damaged. Kishan got grievously injured because of the assault
and was taken to the M.D.M. Hospital where he expired during
treatment. The witness also claimed that while he was admitted at
the hospital for treatment, the SHO PS Basni recorded his Parcha
Bayan (Ex.P/2) on which he appended signatures.
The witness did not state that the accused Madhuram,
Jetharam and Tarachand first reached the spot on a motorcycle
and that the others came later. The witness also did not
specifically allege that the head injuries were caused to Kishan by
Madhuram and Jetharam. The witness also did not state in his
examination-in-chief that he followed Kishnaram and Rawalram in
the Meera Nagar lane where the second part of incident took
place.
In cross-examination, questions were put to the witness
regarding the land dispute existing inter se between the parties.
He refuted the suggestion that when the initial quarrel started
only accused Madhuram and Jetharam were present and insisted
that seven accused persons were present at the spot right from
the beginning. He could not specify the weapons which these
accused were holding when the quarrel was going on outside his
shop. He stated that on hearing cries of Rawalram, Kishan and
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Virendra came there and immediately thereafter, he saw the
accused assaulting them. The witness improved upon his previous
version given to police and stated that he also followed Kishan and
Virendra in order to rescue them from the attack. The police
reached the spot at about 5 o' clock, but he did not infrom them
about the occurrence because no one asked him. Only he and
Kishan were taken to the hospital in the police jeep. At this stage,
it would be relevant to note that this version of the witness
creates a doubt on the assertion of Virendra (PW.4) that he and
Kishan were taken to the hospital in the police jeep. The witness
was confronted with the Parcha Bayan (Ex.P/2) regarding omission
of names of Birmaram and Madanlal, which he was not able to
explain. He was also confronted with the fact that in the Parcha
Bayan (Ex.P/2), there was no reference of the fact that the second
incident took place in the Meera Nagar lane. He admitted that the
allegation made in the Parcha Bayan (EX.P/2 regarding swords
being used by the accused was incorrect. He stated that all the
accused assaulted Kishan between the houses of Mishrilal and
Birmaram. In answer to a pertinent question, the witness
admitted that he was not aware of the reason behind the
altercation, which took place at the Sunil Kirana Store. The spot
where Kishan and Virendra were beaten up i.e., the Meera Nagar
lane was not visible from his shop. He was asked regarding the
theory of motive i.e. the assault on the roadways' bus driver but
he could not elaborate upon the same. He admitted that the
names of Virmaram and Madanlal were not mentioned in his police
statement (Ex.D/4). He denied the suggestion that Sumer,
Jetharam, Pannaram, Birmaram, Madhuram and Bhundaram
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sustained injuries in this very incident. He also denied the
suggestion that he and his companions were the aggressors and
that they had beaten the accused persons up.
10. Ramesh was examined originally as PW.1 and then as PW.3.
He alleged in his evidence that he had gone to Jhalamand Village
to meet his sister. When he was returning and had reached Sunil
Kirana Store, he saw a crowd gathered there and there was an
ongoing fight. Sumer, Madan, Tarachand, Jetharam, Madhuram,
Birmaram and Pannaram were assaulting Malaram, Kishan,
Virendra and Rawalram with lathis and iron rods. The witness
claimed that he, Arjun, Tulsiram and Manish tried to intervene to
stop the fight, but the accused did not relent. Kishan and Virendra
ran towards the Meera Nagar lane for saving their lives and the
accused pursued them. The witness and his companions also
followed. The accused persons caught hold of Kishan and Virendra
outside the houses of Jats and then beat them up with iron rods.
Thereafter, the accused ran away. The police came there and took
the injured persons to the hospital. In cross-examination, the
witness admitted that the accused as well as the complainant
party were related to him. He could not pin-point specific roles of
the accused in the incident. He admitted that he operated a
Grocery Store opposite Umaid Bhawan and explained that on the
day of the incident, he had gone to Jhalamand Village to meet his
sister. He also stated that Sumer, Birmaram, Pannaram and
Madanlal ran away and thereafter Kishan was beaten up by
Madhuram and Jetharam by lathis and iron rods. Madhu Ram also
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sustained some injuries but he did not see any other accused
persons to have sustained injuries in the incident.
11. Arjun (PW-2) stated that he was sitting on the main road of
Jhalamand Village. At about 5.00-5.30 PM, he heard a hue and cry
from the direction of Sunil Kirana Store and saw crowd gathered
there. He went and saw that Setharam @ Jetharam, Madanlal,
Birmaram, Pannaram, Tarachand and Madhuram armed with
lathis, iron rod, pipes etc. were beating Kishnaram, Virendra,
Rawalram and Malaram up. He, alongwith Tulsiram (PW.10),
Manish (PW.3) and Prakash tried to intervene to stop the fight.
The assailants did not relent. Kishnaram and Virendra ran towards
Meera Nagar lane. He and the other witness ran behind them. The
assailants obstructed Kishnaram and Virendra in between the
houses of Jats and started assaulting them with lathis, iron rods
and pipes etc. Kishan was beaten by Setharam, Madhuram,
Birmaram and Tarachand and got injury on his legs and head. He
started bleeding extensively from his head wound and fell down
unconscious. The same accused also assaulted Virendra. The
witness and the other interveners raised a hue and cry upon
which, the assailants ran away. A little later, the police arrived and
took the injured persons to the hospital. He alleged that the
incident took place because of an old land dispute. In cross-
examination, the witness admitted that he was related to both the
parties. He reached the spot at about 05.30 PM and saw that the
fight was already underway. A crowd had gathered and he passed
the bystanders and reached the spot and witnessed the fight.
Madhuram was having an iron rod. Setharam @ Jetharam was
having an iron pipe. Pannaram was having an iron bar. The other
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accused persons were having lathis of four feet. The witness and
four others intervened. Stones were indiscriminately thrown and
thus, the nearby shopkeepers had to close their shops. Upon
reaching the spot, he saw stones lying there. He was unable to
say whether Madhuram or the other accused persons sustained
injuries in this incident.
12. Manish son of Shri Tulsiram (PW.3) alleged in his evidence
that he and his father Shri Tulsiram (PW.10) had left their shop at
Rameshwar Nagar and were proceeding homewards. At about
5:00-5:30 pm, they reached near Sunil Kirana Store on the Guda
road, opposite Jhalamand Circle and saw a crowd of people
gathered there. They stopped and saw that Madhuram, Jetharam
@ Setharam, Sumer, Tarachand, Birmaram, Madanlal and
Pannaram were assaulting Kishan, Virendra, Rawalram and
Malaram with iron rods, iron pipes, iron bars etc. The witness,
alongwith Ramesh, his father Tulsiram and Arjun tried to
intervene, but the fight was quite intense. Kishan and Virendra ran
towards the Meera Nagar lane. Setharam and Madhuram pursued
them. The witness followed them and saw Kishanaram and
Virendra being assaulted by these people upon which, he
intervened in an attempt to save the victim. Kishan collapsed after
being injured. The assailants then ran away. Police arrived at the
spot and took the injured to the hospital.
In cross-examination, the witness admitted that he used to
work at his own shop, which he usually opens at 8 o'clock in the
morning and closes at about 9.30 pm. On the day of the incident,
his younger brother was sitting at the shop. A suggestion was
(19 of 40) [CRLAD-185/2018]
given that as a matter of fact, he was not present at the spot and
was created to be an eye-witness. He admitted that when he
reached the spot, the fight had already commenced. He could not
specify the weapons held by the particular accused. The police
came to the spot in his presence. He did not handle the injured
persons. He admitted that his statement under Section 161 Cr.P.C.
was recorded after one month of the incident. He feigned
ignorance to the suggestion that the accused Madhuram, Sumer,
Jetharam and Bhundaram were also admitted in the same hospital
because of the injuries sustained by them in this incident. When
the incident was going on in the Meera Nagar lane, he, his father
Tulsiram Ji, Ramesh and Arjun were present at the spot and in
addition thereto, the people of the locality were also standing
there, but he could not identify them. He denied the suggestion
that Kishan, Virendra, Malaram and Rawalram had beaten the
accused up outside the Sunil Kirana Store or that the accused
were pursued by the members of the complainant party to the
lane where Jats resided. He also denied the suggestion that
Kishan gave a blow on the head of Madhuram and Virendra
inflicted head injury to Sumer. He also denied the suggestion that
Santosh and Dayal indulged into a fight with the accused party
and caused them injuries. He feigned ignorance regarding the so-
called cross case.
13. Virendra son of Shri Jagdish (PW-4) is the star witness of the
prosecution who was manifestly, present in the second part of the
incident which took place in the Meera Nagar lane and thus, his
testimony would have a material bearing on the outcome of this
case. While deposing on oath, Virendra stated that on 03.07.2011,
(20 of 40) [CRLAD-185/2018]
in the evening at about 5 o' clock, he had gone towards Sunil
Kirana Store. There, he saw 6-7 people namely Madhuram,
Jetharam, Tarachand, Birmaram, Pannaram, Sumer and Madanlal
assaulting Malaram and Rawalram with iron rods and iron bars.
He, his uncle Kishanaram (the deceased), Tulsiram, Manish and
Arjunram tried to intervene on which, the accused diverted their
wrath towards them. Kishanaram was assaulted by all the 7
assailants with their respective weapons, i.e. lathis, iron rods and
pipes. He (witness) was also beaten up and sustained injuries on
his head and legs. Kishanaram got injuries on his head and legs
and due to which he fell down. The witness specifically stated that
Madhuram and Jetharam gave blows of iron rods and bars on the
head of Kishanaram and that Tarachand inflicted blows on his head
and leg with an iron pipe. The police came to the spot and took
him and Kishanaram to the hospital. Kishanaram succumbed to
the injuries while undergoing treatment. He knew Madhuram and
Jetharam and also the other accused Sumerram, Pannaram,
Madanlal, Birmaram and Tarachand. In cross-examination,
questions were put forth to the witness regarding the land dispute
existing inter se between the parties. He could not offer much
explanation to these suggestions. He stated that on the day of the
incident, he randomly went to the Sunil Kirana Store. The quarrel
started opposite the Store. He could not say as to how the
incident precipitated because he had reached there a little late.
While the fight was going on, he, Kishanaram, Tulsiram, Manish,
Ramesh and Arjun were present there. All of them tried to
disperse the fight on which, the accused diverted their attention
and started assaulting them. In order to avoid being beaten up, he
and Kishanaram ran towards the Meera Nagar lane which is
(21 of 40) [CRLAD-185/2018]
opposite to the Sunil Kirana Store. The accused pursued them.
Tulsiram, Manish and Arjun also followed them. The second part of
the incident took place in Meera Nagar Lane, which is at a distance
of 150 Pawandas (five steps are equal to one Pawanda) from the
store. This place was not visible from the Sunil Kirana Store. He
admitted that all the accused were raining indiscriminate blows
and he could not distinguish as to who was beating whom.
Malaram and Rawalram were beaten up at the Sunil Kirana Store
by sticks, rods and bars. Kishanaram was beaten up near the
houses of Birmaram and Mishrilal. He could not say as to how
many blows were landed on Rawalram and Malaram. Three
injuries were inflicted to Kishan and he (witness) too was hit on
the head when he intervened. His clothes got stained with blood.
However, he did not give them to the police. In a question raised
by the defence, the witness stated that he as well as Kishan were
beaten up by all the seven accused. He admitted that when the
police came to the spot, he was fully conscious, but he did not
give a report or oral information to the police. He and Kishan were
taken to the hospital in the police jeep. On reaching the hospital,
Kishan was admitted to the ICU and he was kept in the outer
ward. Rawalram was lying beside him. He could not say as to
whether Sumer, Jetharam, Madhuram and Bhundaram were also
admitted in the same ward. They stayed in the hospital overnight
and went home at about 7:00-8:00 am on the next day. Till then,
he did not give any information to the police. The Police recorded
his statements 3-4 days after the incident. The relevant parts of
cross-examination conducted from the witness with reference to
his police statement (Ex.D/3), is reproduced hereinbelow for the
sake of ready reference:-
(22 of 40) [CRLAD-185/2018]
"esjh eq[; ijh{k.k dh ckr ^^lqfuy fdjk.kk LVksj dh nqdku ds vkxs N% lkr yksx
ekykjke] jkoyjke ds lkFk ykfB;ksa] lfj;ksa ls ekjihV dj jgs Fks** ;g ckr esjs iqfyl
c;ku izn"kZ-Mh-3 esa fy[kh gqbZ ugha gSA esjs eq[; ijh{k.k dk Hkkx ^^ekjihV djus okys
ek/kqjke] tsBkjke] rkjkpan] chjekjke] iUukyky] lqesj] enuyky Fks** ;g ckr esjs iqfyl
c;ku izn"kZ-Mh- 3 esa fy[kh gqbZ ugha gSA eq[; ijh{k.k dh ckr ^^chp cpko esa eSa] esjk dkdk
fd"kujke] rqylhjke] euh'k] jes"k vtqZujke Fks** buesa ls rqylhjke] jes"k] euh'k] vtqZujke
dk uke izn"kZ-Mh- 3 esa fy[kk gqvk ugha gSA eq[; ijh{k.k dh ckr ^^eqyfteku us gekjs Åij
okj fd;k Fkk** izn"kZ-Mh- 3 esa dsoy rkjkpan vfHk;qDr dk uke fy[kk gqvk gS] ckdh fy[kk
gqvk ugha gSA eq[; ijh{k.k dk Hkkx ^^ekjihV ls lqfuy fdjk.kk LVksj ls cpus ds fy;s ehjk
uxj tkVksa ds ?kjksa dh rjQ Hkkxs Fks** izn"kZ-Mh- 3 esa ehjk uxj tkVksa ds ?kjksa dh rjQ Hkkxs
fy[kk gqvk ugha gSA eq[; ijh{kk dh ckr ^^ogka ij esjs dkdk fd"kujke ds Åij ykfB;ka]
lfj;k o ikbZiksa ls lkrksa yksxksa us okj fd;k** dk mYys[k izn"kZ-Mh-3 esa ugha gS] [kqn dgk
fd ekjihV esa eqyfteku ds uke crk;s gqos gSA ;g ckr lgh gS fd izn"kZ-Mh- 3 c;ku esa
nwljh ?kVuk okyh txg tkVksa ds ?kj ds ikl u gksdj ehjk uxj dh xyh esa gksuk crk;k
gSA ;g dguk lgh gS fd p"enhn xokg ekykjke o jkoyjke ds lkFk ekjihV djus dk
mYys[k izn"kZ-Mh- 3 c;ku esa ugha gSA"
When we peruse the statement of this witness, we find that
there is a significant contradiction in his sworn testimony and the
statement (Ex.D/3) inasmuch as, while in the sworn statement,
the witness stated that he as well as Kishanaram ran together
towards the lane of Meera Nagar in an attempt to escape from the
assailants, but in the statement (Ex.D/3), the witness stated that
he had gone to the Sunil Kirana Store and saw that his uncle
Kishan was being beaten up in a lane across the road. Upon
seeing this assault, he ran there and tried to intervene on which,
Tarachand inflicted an iron pipe blow to him due to which he
sustained injuries on his head and right leg. Kishan was inflicted
blows of iron rods by Madhuram and Jetharam on his head. Thus,
(23 of 40) [CRLAD-185/2018]
in this statement, the witness did not pertinently allege that the
second part of the incident took place in the Meera Nagar lane. He
also did not allege that he and Kishanaram reached at the spot of
incident together or that they were pursued by the assailants. To
this extent, there is significant inconsistency in the two versions of
the witness. Furthermore, in the statement (Ex.D/3), the witness
did not allege that Tulsiram, Arjunram, Ramesh and Manish were
present at the spot during any of the incidents. A vague
suggestion was given to the witness that the accused were called
to the spot by making an offer of settling the dispute which, the
witness refuted. He also denied the suggestion that the accused
Madhuram, Sumer, Jetharam and Bhundaram sustained injuries in
this incident.
14. Rawalram (PW.5) is a very important witness of the
prosecution because he is alleged to be the person with whom the
initial scuffle started. Upon being examined on oath, the witness
alleged that he had reached the Sunil Kirana Store, Jhalamand
road between 4:00-5:00 PM on 03.07.2011. He parked his
motorcycle and was sitting at the Sunil Kirana Store. Madhuram,
Jetharam and Tarachand came there on a motorcycle and parked
the same beside his motorcycle. Madhuram was holding an iron
bar, Jetharam was holding an iron rod and Tarachand was holding
an iron pipe. Jetharam and Madhuram inflicted iron bar blows on
his head. Tarachand inflicted a pipe blow on his left wrist. When he
shouted, Malaram who was working in the shop came out and
tried to intervene, on which, he was also inflicted blows on his
head by all the three assailants. A hue and cry was raised on
(24 of 40) [CRLAD-185/2018]
which, others from the accused party namely Pannaram, Madanlal,
Sumer and Birmaram came there. Kishan and Virendra also
rushed to the spot on noticing the commotion and tried to
intervene. The accused diverted their attention towards these two
persons who ran towards the Meera Nagar lane. They were
pursued and belaboured in the lane. Madhuram, Jetharam and
Tarachand inflicted injuries on the head of Kishan with iron rods,
bars and pipes due to which, the deceased started bleeding.
Virendra was also badly beaten up. Ramesh, Arjun, Tulsiram and
Manish also tried to intervene, but the accused did not relent. The
police came there and took him along with Kishan and Virendra to
the hospital. All were provided treatment. Kishan was admitted to
the ICU. The witness was discharged in the night. Kishan passed
away at the hospital. He alleged that the accused had beaten
them up because of a land dispute. He claimed to be knowing the
accused from before and identified them in the Court.
In cross examination, the witness stated that no sooner the
accused Madhuram and his companions got down from the
motorcycle, they started hurling profanities. Madhuram inflicted
two iron bar blows on his head. He shouted upon which, Malaram
came to save him on which, he too was beaten up. Thereafter, the
accused Pannaram, Madanlal, Sumer and Birmaram arrived at the
scene. A few moments later, Kishan reached the spot. He claimed
to have seen the incident of assault on Kishan from a distance of
about 200 feet. The witness admitted that the assailants did not
come to the spot as a group, but arrived at different moments.
When Kishan was being beaten up, about 40-50 people had
(25 of 40) [CRLAD-185/2018]
gathered there. He did not file any report with the police as the
policemen did not inquire from him about the incident. He was
provided treatment and was discharged in the morning. His
statement was recorded by the police after one month of the
incident. Accused Madhuram was also admitted in the hospital.
The motorcycle, on which the accused came to the Sunil Kirana
Store, kept lying outside there for about seven days. The witness
was confronted with certain parts of his police statement (Ex.D/2).
The significant omission in this statement is regarding arrival of
Jetharam to the spot with the two accused Madhuram and
Tarachand. In the police statement (Ex.D/2), the witness did not
name Birmaram and Madanlal as the assailants. He had no
explanation for these omissions. General suggestions were given
to the witness that as a matter of fact Kishanaram was the
aggressor and that the injuries were inflicted to him in exercise of
right of private defence and in the alternative, the injuries which
were sustained by Kishan were as a result of stones thrown by
Santosh and Dayal, which the witness denied.
After going through the entire cross-examination conducted
on this witness, we are of the view that he definitely did not follow
the brawl which had spilled over to the Meera Nagar lane and
stayed back at the shop and thus, he could not have seen the
assault made on Kishnaram and Virendra. Furthermore, the
witness also did not name the accused Birmaram and Madanlal in
his statement. He did not even state that the witnesses Tulsiram,
Arjun, Ramesh and Manish also arrived at the spot and intervened
to save them.
(26 of 40) [CRLAD-185/2018]
15. The last eye-witness of the prosecution is Tulsiram (PW.10)
who alleged in his testimony that he and his son were going
towards their shop on 03.07.2011. When they reached Sunil
Kirana Store, they saw a crowd gathered there. Malaram, Kishan,
Rahul (Rawalram) and Virendra were being beaten up by
Madhuram, Jetharam, Sumer, Madanram and Pannaram with
lathis, iron rods and sticks, etc. Kishanaram, Malaram and
Virendra ran towards the Meera Nagar lane in an attempt to save
themselves from the assailants. All the by-standers followed them.
He ran towards the said direction along with his son Manish. The
accused surrounded Kishanaram near the houses of Jats.
Jetharam and Madhuram inflicted blows of iron rods on the head
of Kishanaram. Virendra was also beaten up. The police came
there. Kishanaram's family members also reached there and he
was taken to the M.D.M. Hospital. On 04.07.2011, he heard that
Kishanaram had passed away. In cross-examination, he stated
that he was a resident of Hanuman Nagar and was having a shop
at Rameshwar Nagar. On the fateful day, he had left his shop at
about 5 o'clock in the evening because of some domestic work.
About 150 people were present at the spot.
On a threadbare appraisal of the evidence of this witness, it
becomes clear that he definitely did not see Kishanaram being
assaulted because unlike the other witnesses, he did not state that
the police took Kishanaram to the hospital in its jeep.
Furthermore, the contradictions as appearing in his testimony
(27 of 40) [CRLAD-185/2018]
indicates that he must have been present at the spot amongst the
crowd and did not observe any specific part of the incident.
16. After analysing the evidence of the eye-witnesses, we are
convinced that the version as set out in the FIR is not accurate
and that the incident took place in two parts, first, at the Sunil
Kirana Store and the second, between the houses of Jats located
in the lane of Meera Nagar.
17. The dead body of Kishan was subjected to autopsy by Dr.
Jagdish Jugtawat (PW.16) who stated in his testimony that on
conducting autopsy of the dead body, he noticed the following
injuries:-
(1) Stitched wound 9 cm long on the parieto-occipital region at
the back of the head.
(2) On the parietal region at the back of the head, another
stitched wound 5 cm long was seen.
(3) On the temporo parietal region of the head, stitched wound
4 cms long was seen.
(4) In addition thereto, there were two abrasions on the right
leg.
When the skull was opened, subdural hematoma was seen at
the temporo parietal and occipital regions. Both parietal and left
temporal bones were fractured. Blood had collected on the dura
membrane. The cause of death was opined to be the head
injuries. He pertinently stated that the injuries Nos. 1, 2 and 3 as
metioned in the Post-mortem report were individually and
cumulatively sufficient in ordinary course of nature to cause death
(28 of 40) [CRLAD-185/2018]
of the deceased. Nothing significant was elicited in the cross-
examination conducted from the witness.
Dr. Mahendra Kumar (PW.15) examined the injuries of
injured Rawalram (Ex.P/22), Malaram (Ex.P/23) and Virendra
(Ex.P/1E), and x-ray report (Ex.P/24). In his testimony, the doctor
stated that the three injuries noticed on the body of Rawalram
were superficial and were caused by blunt weapons. Malaram had
four injuries and as per the x-ray report, the two injuries on his
right thumb and index finger were opined to be grievous in nature.
Two injuries were noticed on the body of Virendra, both of which,
were found to be simple in nature after x-ray.
18. The investigation of the case was carried out by Mumtaj
Khan (PW.22), who stated in his evidence that Parcha Bayan
(Ex.P/2) of Malaram was provided to him by Devaram, SI (PW.21).
He proceeded to the crime scene and conducted the relevant steps
of investigation viz. preparation of site inspection plan (Ex.P/3),
collecting the blood stained soil (Ex.P/7) etc. The accused
Madhuram, Jetharam, Pannaram and Sumer were arrested.
Madhuram gave him an information (Ex.P/33) under Section 27 of
the Evidence Act and in furtherance thereof, the witness recovered
an iron rod vide memo Ex.P/9. He also alleged that Jetharam also
gave him an information (Ex.P/34) under Section 27 of the
Evidence Act and got an iron bar recovered vide memo Ex.P/11.
Likewise, Pannaram also gave him an information (Ex.P/36) under
Section 27 of the Evidence Act and got a lathi recovered vide
memo Ex.P/13. Sumer gave him an information (Ex.P/37) under
(29 of 40) [CRLAD-185/2018]
Section 27 of the Evidence Act and got an old wooden bat
recovered vide memo Ex.P/15. Madanlal gave him an information
(Ex.P/38) under Section 27 of the Evidence Act and got an old
lathi recovered vide memo Ex.P/29.
It is significant to note here that the witness did not
elaborate upon what exactly were the informations given by the
accused which lead to the recoveries and thus apparently, these
informations were not proved as per law. As a consequence,
neither the informations nor the alleged recoveries made in
pursuance thereof can be read in evidence.
In cross-examination, the witness was confronted with
certain omissions in the Parcha Bayan (Ex.P/2), but as the Parcha
Bayan was recorded by SI Devaram (PW.21), the SHO could not
be expected to answer the contradictions appearing therein. As a
matter of fact, these questions should have been disallowed. Few
pertinent admissions as elicited in the cross-examination of the
Investigating Officer are reproduced hereinbelow for the sake of
ready reference as the same have material bearing on the case:-
";g lgh gS fd ?kVuk ds jkst lqfuy fdjk.kk LVksj ds lkeus nksuksa ds chp >xM+k
gqvk FkkA ;g lgh gS fd nksuksa i{kksa ds vkil esa pksVs vkbZ FkhA
---------------------------------------------------------------------------- ;g lgh gS fd xokg jkoyjke ds eqrkchd igys
ek/kqjke o rkjkpan dk vkuk crk;kA mlds ckn jkoyjke o ek/kqjke ds chp >xM+k gksus ds
chp ekykjke dk vkuk mlds ckn vU; vfHk;qDr tsBkjke] iUukjke o lqesj dk ckn esa
vkuk crk;kA ;g lgh gS fd lHkh vfHk;qDr ,d lkFk bDB~Bs gksdj ?kVuk okys LFkku
ij ,d lkFk ugha vk, cfYd vyx vyx vk, FksA ;g lgh gS fd ek/kqjke ds lkFk
ekjihV gksus dh bryk feyus ds ckn tsBkjke] iUukjke o lqesj ,d lkFk vk, FksA ;g
lgh gS fd nksuksa i{kksa ds chp lqfuy fdjk.kk LVksj ds lkeus eqaLrxhl i{k ehjk uxj Hkxs o
(30 of 40) [CRLAD-185/2018]
muds ihNs gh eqfYte i{k Hkxus yxs o muds chp ehjk uxj tkVks dh xyh esa >xM+k
gqvkA"
The IO proved the medical reports of the accused in the
following order:-
Sr. No. Name of the accused Exhibit
1. Sumer D/12
2. Jetharam D/13
3. Pannaram D/14
4. Madhuram D/15
5. Bhundaram D/16
Other than that, nothing significant was elicited in the cross-
examination conducted on the witness.
19. The defence examined six witnesses in support of its case.
DW.1 Pukhraj stated that Madhuram was beaten up at the shop of
Malaram. He ran towards the lane where he was beaten up again.
The fight took place between Kishan and Madhuram. He saw
Kishan getting injured in the incident. The incident took place in
three parts. He went to the police for reporting the matter but the
police did not accept his report whereafter a complaint (Ex.D/8)
came to be filed in the Court.
20. Bhundaram (DW.2) gave evidence regarding an unconnected
incident of beating which took place at the Shatabadi Circle.
However, the said incident appears to have no connection with the
incidents which took place outside the Sunil Kirana Store and in
the Meera Nagar lane.
(31 of 40) [CRLAD-185/2018]
21. DW.3 Rajendra gave evidence regarding preparation of the
Site Inspection plan (Ex.D-11) which pertains to the third incident
of assault on Bhundaram.
22. DW-4 Sumer is an accused in this case. He alleged that he
was at his home at about 5:30 PM when Kaluram came and told
him that Madhuram was being beaten up at the Sunil Kirana
Store. On hearing this, he went to the Sunil Kirana Store for
saving his brother Madhuram. He saw that Madhuram was being
beaten by Rawalram, Malaram, Kishan, Santosh, Virendra @ Bablu
and Dayalram. He tried to intervene on which, Rawalram gave him
a blow with a blunt weapon on the head. Dayal also hit him on his
leg. Jetharam came to the spot for saving them on which, he too
was beaten up. They ran towards Meera Nagar lane for saving
themselves, but as the lane was blocked, they could not proceed
further. Kishan, Dayal, Santosh, Malaram, Rawalram, Virendra @
Bablu came there and started assaulting them with iron pipes etc.
In the melee, Madhuram and Kishan started grappling with each
other. Kishan's brother Bastiram started to hit a stone on the head
of Madhuram, but suddenly Kishan got up in between and
resultantly received injuries on his head instead.
23. Dr. Ramakant Verma was examined as DW.5. He stated that
he examined the injuries of the accused persons on 03.07.2011
and prepared the injury reports as below:-
(32 of 40) [CRLAD-185/2018]
Name of Exhibit Details of Injuries
the accused
Sumer Ex.D/12 (1) Abrasion 1 x 1 cm on the left side
of head
(2) Complain of pain in the right knee
Jetharam Ex.D/13 (1) Abrasion 1 x 1 cm on the left ear
(2) Complain of pain on shoulder
Pannaram Ex.D/14 (1) Complain of pain on the right
thumb
(2) Abrasion 2 x 2.25 cm ankle joint
Madhuram Ex.D/15 (1) Stitched wound 5 x 1 cm on the
left side of skull.
(2) One stitched wound 3 cm long on
the back side of head.
(3) One lacerated wound 1 x .25 cm
on the palm of right hand
(4) One lacerated wound with stitches
3 cm long on the left toe
All the injuries were opined to be simple in nature. The
doctor also proved injury report of Bhundaram (DW.2), but as the
said injury was admittedly caused in an unconnected incident, the
same has no bearing on the present case.
24. Dr. Ramprakash Meena (DW.7) and Dr. Kirti Rana (DW.8)
conducted x-ray on the head injuries of the accused Madhuram
and Pannaram and after conducting x-ray, reports were issued and
as per which, none of the injuries were opined to be grievous in
nature.
25. On an overall appreciation of the evidence available on
record, we are of the firm view that as per the admitted case
emerging from the evidence of Malaram (PW.6), the first
(33 of 40) [CRLAD-185/2018]
informant, and Virendra (PW.4), both of them did not follow the
injured Virendra and the deceased Kishan towards the Meera
Nagar lane and thus, they definitely could not have seen the
incident in which fatal injuries were inflicted to Kishan. Hence,
their evidence is only relevant qua the incident which took place
outside the Sunil Kirana Store.
26. From the evidence of Rawalram (PW.5), it becomes clear that
he alleged that the three accused namely Madhuram, Jetharam
and Tarachand came to the store on a motorcycle and that while
the incident of assault was going on at that place, the other
accused arrived separately. Though, Malaram (PW.6) tried to
portray in his evidence that all the seven accused persons came to
his shop together but on comparing the evidence of Malaram
(PW.6) and Rawalram (PW.5), we find that Malaram was definitely
not cognizant of the manner in which the accused came to his
shop.
27. Tulsiram (PW.10), Ramesh (PW.1), Manish (PW.3) and Arjun
(PW.2) were also named as witnesses in the FIR, but when we see
the evidence of these four witnesses in reference to the statement
of the star prosecution witness Virendra (PW.4), it becomes clear
that when Virendra was examined by the police, he did not state
that these four persons were present when the incident of assault
with him and Kishanaram was going on in the Meera Nagar lane.
In this background and looking to the facts as emerging from the
evidence of the four witnesses referred to supra, their presence at
the spot when Kishanaram was assaulted appears to be doubtful.
(34 of 40) [CRLAD-185/2018]
28. In this background, we are of the view that so far as the
incident which took place outside the Sunil Kirana Store is
concerned, there is a great deal of doubt regarding the manner in
which the said fight started. The theory of motive which has been
portrayed in the FIR is regarding the naming of the accused
persons in a so-called incident of assault on a roadways' bus
driver. Apparently, the said theory is fictional because Rawalram
(PW.5) himself did not make any such allegation in his evidence.
Therefore, there is a serious doubt regarding the genesis of
occurrence of the incident which erupted outside the Sunil Kirana
Store. The accused Birmaram and Madanlal were not named in
the FIR. The omission of their names goes to the root of the
matter and it is manifest that the prosecution witnesses have
deliberately introduced their names as assailants at a later point of
time for oblique motive. The testimony of the witnesses to this
extent is fit to be discarded.
29. As per the statements of witnesses Rawalram (PW.5) and
Virendra (PW.4), who in our opinion are the only material
witnesses of the two incidents, it is evident that the accused,
other than Madhuram, Jetharam and Tarachand came to the spot
from different directions on hearing the hue and cry which was
raised after the incident outside the Sunil Kirana Store started.
None of the witnesses alleged that the two accused namely
Pannaram and Sumer were armed with any particular weapon.
The incident involving the assault made on Kishnaram and
Virendra in the Meera Nagar lane was a spill over of the initial
(35 of 40) [CRLAD-185/2018]
incident outside the Sunil Kirana Store, the origin whereof is under
a grave cloud of doubt. Admittedly, the parties were fighting with
each other outside the Sunil Kirana Store and this fact is fortified
when we consider that a number of accused persons sustained
injuries in this very incident and were admitted for treatment to
the M.D.M. Hospital alongside the members of the complainant
party.
30. Thus, we have no hesitation in holding that the ingredients
required to constitute an unlawful assembly are totally lacking in
this case and hence, the implication of accused persons by virtue
of Section 149 IPC is unwarranted and unsustainable. The
altercation started outside the Sunil Kirana Store where both the
sides started fighting with each other. During the melee, the
deceased Kishan and the injured Virendra ran towards the Meera
Nagar lane. It is alleged that the accused also followed and there,
the fight continued. Therefore, the incident has all trappings of a
free-fight between the two parties without there being any motive
for the accused to launch an assault with the intention to commit
murder of any person from the complainant party. As per the
admitted prosecution case, assault was initiated by the accused
persons on Rawalram (PW.5) and Kishan (the deceased) and
Virendra (PW.4) came to the spot subsequently as interveners.
Once the interveners arrived at the spot, the parties ran towards
the Meera Nagar lane and the fight continued there. Manifestly,
thus, only Virendra (PW.4) could have witnessed the incident,
wherein Kishanaram was beaten up because Virendra (PW.4) also
sustained injuries in the same process.
(36 of 40) [CRLAD-185/2018]
31. As per the pertinent allegation of Virendra, injuries were
inflicted to Kishanaram with iron rods and bars by Madhuram and
Jetharam. Tarachand allegedly inflicted blows with iron pipe to
Virendra, who in his testimony did not utter a single word that
anyone other than these three accused persons were present at
the spot where Kishanaram was assaulted. Hence, the
involvement of the accused Tarachand, Pannaram, Sumer,
Birmaram and Madanlal in this case by invoking Section 149 IPC is
totally unjustified. The incident which took place in the Meera
Nagar lane was nothing but a free-fight which spilled over after
the initial brawl at the Sunil Kirana Store. In this second part of
incident at the Meera Nagar Lane, Madhuram and Jetharam
inflicted iron rod and bar blows on the head of Kishanaram which
proved fatal.
32. The contention of Shri Jain, learned counsel representing the
appellants, that the accused Madhuram and Jetharam did not have
the intention to cause death of Kishanaram because they were
interveners and thus, the offence should be toned down from one
under Section 302 IPC to one under Section 304 Part-I IPC, is not
tenable when we see the plain language of Clauses 2 nd and 3rd of
Section 300 IPC which stipulates:-
300. Murder.--Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is
done with the intention of causing death, or--
2ndly.--If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or--
(37 of 40) [CRLAD-185/2018]
3rdly.--If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or--
4thly.--If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death,
or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or
such injury as aforesaid.
33. In the face of the evidence of the witness Virendra (PW.4),
the medical jurist Dr. Jagdish Jugtawat (PW.16) and the number
and nature of injuries caused to the deceased Kishanaram, we are
of the firm opinion none of the exceptions provided under Section
300 IPC are applicable to the facts of the present case. For
reaching to this conclusion, we are persuaded to reiterate that
when the medical jurist Dr. Jagdish Jugtawat (PW.16) conducted
autopsy of the dead body of Kishan, he noticed existence of three
grave head injuries all of which resulted in fractures of different
skull bones causing extensive brain damage leading to the death
of Kishanaram.
34. So far as the judgments cited by Shri Jain, are concerned,
we are of the view that the facts of those cases are totally
distinguishable from the facts of case at hand. As the accused
Madhuram and Jetharam inflicted repeated blows of dangerous
weapons like iron rods and bars on the vital body part i.e, head of
the victim, it can definitely be concluded that the acts were done
with the intention of causing death as well as with the intention of
causing bodily injuries which were sufficient in the ordinary course
(38 of 40) [CRLAD-185/2018]
of nature to cause death. Thus, the case of the accused Madhuram
and Jetharam is covered by clauses firstly and thirdly of Section
300 IPC and does not fall within any of the exceptions to Section
300 IPC. Hence, so far as the accused Madhuram and Jetharam
are concerned, their conviction as recorded by the trial court for
the offence punishable under Section 302 IPC is absolutely
justified and need not be toned down.
35. So far as the injuries sustained by the accused persons in
this incident are concerned, we find that the same were absolutely
trivial and superficial in nature. Looking to the manner in which
the incident took place, where both the parties were fighting with
each other, it was a foregone conclusion that injuries would be
suffered by both the sides. Thus, even if the prosecution witnesses
did not offer any explanation for the injuries of the accused, the
circumstances in which the incident took place are self explanatory
for the injuries of the accused.
36. The assault on Kishanaram was a spill over of the initial
incident wherein, Malaram (PW.6) and Rawalram (PW.5) were
assaulted at the Sunil Kirana Store. In the said incident, the
allegation of inflicting simple and grievous injuries to Malaram and
simple injuries to Rawalram is against Madhuram, Jetharam and
Tarachand. Two injuries of Malaram were found to be grievous and
the injuries of Rawalram were found to be simple in nature after
medical examination and thus, the accused Madhuram, Jetharam
and Tarachand deserve to be convicted for the offences under
Section 323 read with Section 34 IPC and Section 325 read with
(39 of 40) [CRLAD-185/2018]
Section 34 IPC. While inflicting injuries to Kishanaram in the
Meera Nagar lane, the accused Madhuram and Jetharam definitely
had the common intention to commit offence and thus, their
conviction has to be recorded for the offence under Section 302
read with Section 34 of the IPC. As a consequence, the impugned
judgment dated 07.08.2018 passed by the learned Additional
District & Sessions Judge No.3, Jodhpur Metro is modified in the
following terms:-
1. Conviction of the appellants Sumer, Pannaram, Tarachand,
Birmaram, and Madanlal for the offences punishable under
Sections 148, 323/149, 325/149 and 302/149 is quashed and set
aside.
2. For inflicting simple injuries to Rawalram and for inflicting
simple/grievous injuries to Malaram, the accused Madhuram,
Jetharam and Tarachand are convicted and sentenced as below:-
Offences Sentences Fine Fine Default
sentences
Sec. 323/34 IPC 3 Months' S.I. Rs.5,000/- 1 Month's S.I.
Sec. 325/34 IPC 6 Months' S.I. Rs.5,000/- 1 Month's S.I.
3. The conviction of the appellants Madhuram and Jetharam as
recorded by the trial court for the offence under Section 148 is
also quashed. For inflicting simple injuries to Virendra @ Bablu
and for the murder of Kishanaram, the accused Madhuram and
Jetharam are convicted and sentenced as below:-
Offences Sentences Fine Fine Default
sentences
Sec.323/34 IPC 3 Months' S.I. Rs.5000/- 1 month's S.I.
Sec.302/34 IPC Life Imprisonment Rs.20,000/- 6 Months' SI
(40 of 40) [CRLAD-185/2018]
The accused-appellants Sumer, Pannaram, Birmaram,
Madanlal and Tarachand are on bail. On going through the record,
it becomes clear that the accused Tarachand has remained in
custody for nearly 11 months and 17 days during trial and during
pendency of the instant appeal. Thus, the bail bonds of these
accused appellants are discharged. They need not surrender. The
appellants Madhuram and Jetharam are in jail. They shall serve
out the remainder of the sentences awarded to them.
The appeals are allowed/partly allowed in these terms.
37. However, keeping in view the provisions of Section 437-A
Cr.P.C., the appellants Sumer, Pannaram, Birmaram, Madanlal
and Tarachand are directed to furnish a personal bond in the sum
of Rs.40,000/- each and a surety bond in the like amount before
the learned trial court, which shall be effective for a period of six
months to the effect that in the event of filing of a Special Leave
Petition against the judgment on receipt of notice thereof, the
appellants shall appear before the Supreme Court.
38. Record be returned to the trial court. A copy of this order be
placed in each file.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
Sudhir Asopa/-
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