Bhagirath And Ors vs State Of Rajasthan
2022 Latest Caselaw 13460 Raj

                                       (1 of 21)                 [CRLA-139/1992]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
             (1.) D.B. Criminal Appeal No. 139/1992

1. Bhagirath,
2. Shanker Lal,
3. Omla,
4. Shyamla,
(All sons of Mukand Singh Purohit)
5. Mukand Singh son of Bakhtawar Singh Purohit.
6. Girdhari Singh son of Hadman Singh Purohit.
7. Nirana Ram son of Nathi Ram Suthar
(All residents of P.S. Sardar Shahar, District-Churu)
(All the accused person are lodged at Churu Jail)
                                                                 ----Appellant
                                  Versus
State Of Rajasthan
                                                               ----Respondent
                            Connected With
             (2.) D.B. Criminal Appeal No. 283/1992
State Of Rajasthan
                                                                 ----Appellant
                                  Versus
1. Mukan Singh son of Bakhtawar Singh, B/c Purohit, R/o
Patalisar.
2. Nirana Ram S/o Nathu Ram, B/c Suthar, R/o Patalisar,
3. Shanker Lal S/o Mukan Singh, B/c Purohit, R/o Patalisar,
4. Girdhari Singh S/o Hadman Singh, B/c Purohit, R/o Patalisar,
5. Shyamla S/o Mukan Singh, B/c Purohit, R/o Patalisar,
6. Omla S/o Mukan Singh, B/c Purohit, R/o Patalisar,
7. Bhagirath S/o Mukan Singh, B/c Purohit, R/o Patalisar,
(All lodged Police Station-Sardarshahar, Churu)
                                                               ----Respondent
             (3.) D.B. Criminal Appeal No. 221/1994
State Of Rajasthan
                                                                 ----Appellant
                                  Versus
1. Mukan Singh son of Bakhtawar Singh, B/c Purohit, R/o
Patalisar.


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                                         (2 of 21)                 [CRLA-139/1992]


2. Nirana Ram S/o Nathu Ram, B/c Suthar, R/o Patalisar,
3. Shanker Lal S/o Mukan Singh, B/c Purohit, R/o Patalisar,
4. Girdhari Singh S/o Hadman Singh, B/c Purohit, R/o Patalisar,
5. Shyamla S/o Mukan Singh, B/c Purohit, R/o Patalisar,
6. Omla S/o Mukan Singh, B/c Purohit, R/o Patalisar,
7. Bhagirath S/o Mukan Singh, B/c Purohit, R/o Patalisar,
(All lodged Police Station-Sardarshahar, Churu)
                                                                ----Respondent


For Appellant(s)         :     Mr. Manish Sisodia, Senior Advocate,
                               assisted by Mr. Yogendra Singh
For Respondent(s)        :     Mr. B.R. Bishnoi, PP
                               Mr. Pawan Singh Bhati, on behalf of
                               Mr. I.R. Choudhary



          HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MR. JUSTICE FARJAND ALI

                             JUDGMENT

Date of pronouncement : _17/11/2022

Judgment reserved on : 12/09/2022

BY THE COURT : PER HON'BLE MEHTA, J.

These three appeals are directed against the judgment dated

25.03.1992 passed by the learned Sessions Judge, Churu in

Sessions Case No.33/1990, whereby accused Mukan Singh, Nirana

Ram, Shankar Lal, Girdhari Singh, Shyamla, Omla and Bhagirath

have been convicted and sentenced as below :-

Offcene for        which Sentence and fine awarded
convicted
Section 304 Part I read Five  years'     rigorous   imprisonment
with Section 149 IPC    alongwith a fine of Rs.500/-
Section 325 read with One   year's     rigorous   imprisonment
Section 149 IPC       alongwith a fine of Rs.100/-

Section 323 read with Six months' rigorous imprisonment Section 149 IPC Section 148 IPC One year's rigorous imprisonment Section 447 IPC Three months' rigorous imprisonment

(3 of 21) [CRLA-139/1992]

It is relevant to note here that the accused appellants were

charged for the offences punishable under Section 302 read with

Section 149 IPC and Section 307 read with Section 149 IPC.

However, the trial court while toning down the offence under

Section 302 read with Section 149 IPC, convicted the accused

appellants for the offence punishable under Section 304 Part I

read with Section 149 IPC and acquitted them from the offence

punishable under Section 307 read with Section 149 IPC.

While the accused persons have approached this court by

way of D.B. Criminal Appeal No.139/1992 filed under Section 374

(2) CrPC for challenging their conviction and sentences awarded to

them by the trial court, the State of Rajasthan has filed Criminal

Appeal No.221/1994 under Section 378 (i) & (iii) CrPC for

assailing acquittal of the accused from the charges punishable

under Sections 302 read with Section 149 IPC and 307 read with

Section 149 IPC and D.B. Criminal Appeal No.283/1992 under

Section 377 CrPC seeking enhancement of sentences awarded to

the accused.

Briefly stated, facts relevant and essential for disposal of the

appeals are noted hereinbelow :-

Radhakishan (P.W.1) lodged an oral report at the Police

Station Sardar Shahar on 03.11.1989 at about 05.00 p.m. alleging

inter alia that their agricultural land was located in the Village

Dega Ki rohi, where his parents had constructed a hut and used to

reside therein. They had sown crops in the field. In the afternoon

of 03.11.1989 at about 02.30 p.m., the first informant purchased

some household articles for his parents and reached their dwelling

(4 of 21) [CRLA-139/1992]

and there, he saw the dead body of his father Shri Gorakh Singh

lying in the adjoining field of Bhanwar Singh. His mother Smt.

Bhanwari was also lying nearby in injured condition. The

neighbouring field owners Aadu Ram and Naan Ji, residents of

Patalisar, were sitting nearby. He asked his mother Bhanwari as to

what happened, on which she told that she and his father Gorakh

Singh were lying down inside the hut talking to each other, when

suddenly, in the middle of the night, at about 12.00-01.00 o'clock,

Mukand Singh son of Bakhtawar singh, Bhagirath, Shankar Lal,

Omla, Shyamla sons of Mukand Singh, Girdhari Singh son of

Hadman Singh and Nirana Ram son of Nathi Ram, all residents of

Village Patalisar, Sardar Shahar came there. Bhagirath was having

an iron Jei, while the others were having lathis in hand. No

sooner these accused entered into their hut, Bhagirath shouted

that they should be killed and thus, the land would be released.

Saying so, Bhagirath gave a blow of iron pronged jei on the hand

of her husband Gorakh Singh. Nirana Ram gave a blow of lathi on

her face. Others started hitting Shri Gorakh Singh by Jeis, lathis,

etc. Both were dragged out and indiscriminately assaulted in front

of the hut. Bhagirath gave a Jei blow, fracturing Smt. Bhanwari's

hand. Shri Gorakh Singh was beaten by Mukan Singh, Bhagirath,

Girdhari, Narayan, Omla, Shyamla and Shankar by lathis, Jeis etc.

Feeling confident that both the victims had died, they lifted and

threw them nearby the field of Bhanwar Singh Purohit. They also

stole some goods from the Dhani. Some articles were thrown out.

Aadu Ram and Naan Singh came to the place of incident and upon

seeing them, the accused fled away. It was pertinently alleged

that serious enmity was prevailing between the accused party and

(5 of 21) [CRLA-139/1992]

the complainant party owing to old land dispute and with this

motive, parents of the complainant were assaulted, wherein his

father expired and his mother was brutally injured.

On the basis of this oral report of Shri Radhakishan, an FIR

No.217/1989 (Ex.P/1) came to be registered at the Police Station,

Sardar Shahar for the offences under Sections 302, 307, 147,

148, 149, 447 and 323 IPC and investigation was assigned to Shri

Kishan Lal, (P.W.12), SHO, Police Station Sardar Shahar, who

proceeded to the place of incident. The injured Bhanwari was sent

to the hospital for treatment and the dead body of Shri Gorakh

Singh was sent to the hospital for autopsy. The Medical Jurist Dr.

Jatan Lal Baid posted at the Government Hospital, Sardar Shahar,

undertook autopsy upon the dead body of Shri Gorakh Singh and

noticed the following injuries on his body :

1. Lacerated wound 2" x 1 ½" bone deep on the right parietal

area.

2. Lacerated wound 2 " x 1 ½" x ¼ " on the left side of the face.

3. Abrasion 2 ½" x 1 ½" on the left shoulders.

4. Contusion 2 ½" x 2" on the left scapular area.

5. Abrasion 1 ½" x 1" on the right shoulder.

6. Contusion 3" x 1 ½" on the left intra scapular area.

7. Abrasion 4 each 1 ½" long on left supra scapular area.

8. Abrasion 7 each 1 ½" x ¼ " on the left side of lower back.

9. Abrasion 5 each 1 ½" each on the right side of back.

10. Abrasion 3 ½ " long on the lower part of right buttock.

(6 of 21) [CRLA-139/1992]

11. Contusion 2 ½" x 2" on the right buttock.

12. Lacerated wound ½" x ¼ " x 1/6" on the medial side of left

lower leg.

13. Lacerated wound 1" x ½" x ¼" on the middle part of right leg

anteriorly.

14. Contusion 3 - 2 ½" x 1" on the back of left elbow of forearm.

15. Abrasion 2 x 1 ½" on the lateral side of left upper arm in

lower area.

16. Contusion 4 ½" x 2" on the back of left upper arm in the

lower part.

17. Lacerated wound 2" x 1" bone deep with fracture of lower 1/3

on tibia bone medially bone pieces coming out of left lower leg.

18. Swelling 4" x 2 ½" of the lower 1/3rd area anterio-posteriorly

with fractures on both bones left forearm.

19. Contusion 4" x 1" on the right side of lower chest anteriorly

with fracture on 9th and 10th rib.

20. Contusion 3" x 1 ½" on the left side of upper abdomen

anterio-laterally.

21. Abrasion 2 ½" x 1 ½" on the medial side of right elbow.

He issued the postmortem report (Ex.P/28) opining that cause of

death of Shri Gorakh Singh was shock due to multiple injuries and

rupture of spleen leading to extensive internal and external

haemorrhage. The injuries of Smt. Bhanwri were also examined

and the injury report Ex.P/30 was issued.

(7 of 21) [CRLA-139/1992]

She was also subjected to x-ray examination and an opinion

was received that two injuries, one on the left leg and the other

on the left forearm were grievous in nature.

Spot documents were prepared. The accused persons were

arrested and lathis and Jeis were recovered in furtherance of their

disclosure statements. Documents pertaining to the Revenue

litigation going on between the parties were collected.

Upon conclusion of investigation, a charge-sheet came to be

filed against the accused persons for the offences punishable

under Section 302/149, 307/149, 325/149, 323/149, 148 and 447

IPC. Since the offences punishable under Section 302 read with

Section 149 and 307 read with Section 149 IPC were exclusively

Sessions triable, the case was committed to the Court of Sessions

Judge, Churu, where charges were framed against the accused for

these offences. They pleaded not guilty and claimed trial. The

prosecution examined as many as 12 witnesses and exhibited 48

documents to prove its case. The accused, upon being questioned

under Section 313 CrPC and when confronted with the allegations

appearing against them in the prosecution story denied the same,

claimed to be innocent, but did not lead any oral evidence in

defence. After hearing the arguments advanced by the learned

Public Prosecutor and the learned defence counsel and

appreciating the evidence available on record, the trial court

proceeded to render the impugned judgment dated 25.03.1992,

whereby the accused persons were acquitted from the charge

under Section 307 read with Section 149 IPC and while toning

(8 of 21) [CRLA-139/1992]

down the charge under Section 302 to one under Section 304 Part

I IPC, they were convicted and sentenced as above.

The relevant findings recorded by the trial court at the paras

Nos.19 to 24 of the impugned judgment are reproduced

hereinbelow for the sake of ready reference :-

"19- vr% mDr foospu ds izdk'k esa ;g U;k;ky; blh Li"V fu"d"kZ ij igqaprk gS fd vfHk;kstu i{k us ;g rF; lansg ls ijs izekf.kr fd;k gS fd lkrksa vfHk;qDrx.k us fnukad 03&11&89 dks vfHk;ksxh i{k ds [ksr esa vukf/kd`r izos'k dj tsbZ o ykfB;ksa ls xksj[kflag ds pksVsa igqapkdj mldh e`R;q dkfjr dh rFkk Hkaojh nsoh ds Hkh 15 pksVsa igqp a kdj mldks ?kk;y fd;kA Hkaojh nsoh dh nks pksVsa vfLFkHkax dh xaHkhj FkhA

20- vc gesa bl lanHkZ esa fopkj.k djuk gS fd vfHk;qDrx.k fdu vijk/kksa ds fy, nks"kh gS\ vijk/kksa dh izd`fr fu/kkZfjr djus ds Øe esa gesa ;g fuf.kZr djuk vko';d gS fd D;k vfHk;qDrx.k us ?kVuk ds le; xksj[kflag o Hkaojh ds pksVsa igqapkus ds lanHkZ esa voS/k tu lewg dk xBu fd;k\ Hkaojh nsoh ds lk{; dk va'k tks Åij mn`r fd;k x;k gS] ;g Li"V djrk gS fd lHkh vfHk;qDRkx.k ,d lkFk tsbZ o ykfB;ka ysdj jkf= esa muds [ksr esa cus >ksiM+s ds ikl vuf/kd`r izos'k djrs gq, x;sA muds ykfB;ksa o tsbZ ls Hkkjh la[;k esa pksVsa igqapkbZA bl lk{; oLrq rFkk vU; lHkh ifjfLFkfr;ksa ds izdk'k esa ;g lansg ls ijs izekf.kr gS fd lHkh vfHk;qDrx.k us xksj[kflag o Hkaojhnsoh ds Hkkjh la[;k esa pksVsa dkfjr djus ds lkekU; mÌs'; ls ,d voS/k tu lewy dk xBu fd;k o ?kVukLFky ij x;s o bldh fØ;kfUofr esa lHkh vfHk;qDrx.k us xksj[kflag o Hkaojhnsoh dks tsbZ o ykfB;ksa ls pksVsa dkfjr dhA vr% vfHk;qDrx.k ds fo:) /kkjk 148 Hkk-n-la- ds vijk/k dk vkjksi lansg ls ijs izekf.kr gSA

21- ;g rF; Hkh lansg ls ijs izekf.kr gS fd [ksr [k-ua- 58 tks xzke nsxk dh jksgh esa gS vfHk;ksxh i{k ds vkf/kiR; esa Fkk tSlk fd vfHk-

lk- la- 6 enuyky uk;c rglhynkj] ljnkj'kgj ds lk{; o iz-ih-24

(9 of 21) [CRLA-139/1992]

tekcanh o iz-ih- 45 LFkxu vkns'k ls izekf.kr gSA vr% vfHk;qDrx.k } kjk pksVsa dkfjr djus ds vk'k; ls vfHk;ksxh i{k ds [ksr esa vukf/kd`r izos'k Hkh izekf.kr gSA vr% /kkjk 447 Hkk-n-la- ds vijk/k dk vjksi Hkh vfHk;qDrx.k ds fo:) lansg ls ijs izekf.kr gSA

22- Jherh Hkaojh nsoh ds 'kjhj ij 15 pksVsa fpfdRlh; lk{; ls gksuk izekf.kr gSA mlus vius lk{; ls izdV fd;k gS fd lHkh vfHk;qDrx.k us mlds nM+k nM+ tsbZ o ykfB;ksa ls pksVsa ekjhA mlds nks xaHkhj pksVsa gS rFkk 'ks"k lk/kkj.k pksVsa gS rFkk vfHk;qDrx.k ds ekxZ ij voS/k tu lewg dk xBu o lkekU; mÌs'; dh iwfrZ esa pksVsa dkfjr djuk izekf.kr gSA vr% /kkjk 323 l-i- 149] 325 l-i- 149 Hkk-n-la- ds vijk/kksa ds vkjksi Hkh lansg ls ijs muds fo:) izekf.kr gSA

23- tgka rd /kkjk 302 l-i- 149 Hkk-n-la- ds vijk/k ds vkjksi dk iz'u gS fpfdRlh; lk{; ls izdV gksrk gS fd e`rd xksj[kflag ds 'kjhj ij fuyxw] [kjksap rFkk dqpys gq, ?kko dqy 21 pksVsa FkhA izFke pksV flj ij Fkh tks lk/kkj.k FkhA nwljh pksV psgjs ij Fkh tks lk/kkj.k Fkh rFkk 'ks"k pksVsa 'kjhj ds vU; Hkkx ij FkhA rhuksa pksVsa vfLFkHkax dh xaHkhj izd`fr dh Fkh tks ikao dh o gkFk dh gM~Mh ,oa ialfy;ksa dh gM~Mh ds vfLFkHkax gSA vfHk;qDrx.k lHkh dks /kkjk 149 Hkk-n-la- dh lgk;rk ls xksj[kflag dh e`R;q dkfjr djus ds vijk/k ds fy;s nks"kh Bgjk;k tkuk gSA xksj[kflag ds fdl vfHk;qDr us dkSulh pksV igqp a kbZ blds ckjs esa dksbZ Li"Vhdj.k Hkaojhnsoh us vius lk{; esa ugha fd;k gSA vr% lHkh ifjfLFkfr;ksa dks ns[krs gq, bl U;k;ky; ds U;kf;d foosd ds vuqlkj lHkh vfHk;qDrx.k dks /kkjk 302 l-i- 149 Hkk- n-la- ds LFkku ij /kkjk 304 Hkkx izFke l-i- 149 Hkk-n-la- vijkf/kd ekuo o/k o gR;k dh dksVh esa ugha vkrk ds vijk/k ds fy;s nks"kh Bgjk;k tkuk mfpr izrhr gksrk gSA

24- tgka rd Hkaojh nsoh ds dkfjr dh xbZ pksVksa ds lanHkZ esa /kkjk 307 l-i- 149 Hkk-n-la- ds vijk/k ds vkjksi dk iz'u gS Hkaojh nsoh ds 'kjhj ij fdlh ekfeZd LFky ij dksbZ xaHkhj pksV ugha igaqpkbZ xbZ gSA mlds nks vfLFkHkax dh pksVsa nka;s iSj o cka;s gkFk esa gSA lk{; ls ;g Hkh izdV gqvk gS fd og pksVksa ds i'pkr gks'k esa FkhA

(10 of 21) [CRLA-139/1992]

vfHk;qDrx.k ;fn mldh e`R;q dkfjr djuk pkgrs rks ,slh dksbZ ifjfLFkfr ck/kd ugha Fkh ftlds dkj.k os vius lkekU; mÌs'; dh iwfrZ ugha dj lds gksrsA vr% lHkh ifjfLFkfr;ksa ds izdk'k esa bl U;k;ky; ds U;kf;d foosd ds vuqlkj Hkaojh nsoh dh pksVksa ds lanHkZ esa vfHk;qDrx.k ds fo:) /kkjk 325] l-i- 149] 323 l-i- 149 Hkk-n-la- ds izekf.kr vijk/k gksaxsA /kkjk 307 Hkk-n-la- ds vijk/k dh nks"kflf) dk dksbZ vk/kkj izdV ugha gksrkA vr% lHkh vfHk;qDrx.k dks /kkjk 307 l-i- 149 Hkk-n-la- ds vijk/k ds vkjksi ls nks"keqDr fd;k tkrk gSA "

As stated above, these three appeals have been instituted for

assailing the impugned judgment, one at the instance of the

accused and two at the instance of the State.

Learned Public Prosecutor Mr. Bishnoi and Mr. Pawan Bharti

associate to Mr. I.R. Choudhary, learned counsel for the

complainant, vehemently and fervently submitted that acquittal of

the accused persons as recorded by the trial court from the

offences punishable under Section 302 and 307 of IPC is

absolutely illegal and perverse. In this regard, they drew the

Court's attention to the evidence of the star prosecution

eye-witness Smt. Bhanwari Devi, who was herself injured in the

very same incident and the Medical Jurist Dr. Jatanlal Baid (P.W.9).

Learned Public Prosecutor submitted that if the evidence of Smt.

Bhanwari Devi is seen, apparently, the incident took place in the

dead of the night. The deceased Shri Gorakh Singh was an old

ailing man and he was also hard of hearing. The accused persons

had strong motive to commit the offence as there existed a prior

enmity between the parties owing to a land dispute. They

trespassed into the Dhani of the victim in the dead of the night

and were armed with weapons like Jei and lathis. A chimney was

(11 of 21) [CRLA-139/1992]

burning inside the Dhani and in the illumination, thereof, Smt.

Bhanwari Devi, easily identified the accused persons as being the

assailants. She levelled emphatic allegations of brutal assault

against all the accused named in the FIR. Nothing significant was

elicited in the cross-examination of Smt. Bhanwari Devi, which can

discredit her testimony. The defence, gave a suggestion to the

lady that she and her husband had gone to take possession of the

Dhani in the dead of the night and that some unknown persons

assaulted them. She emphatically refuted this conjectural defence

story. Learned Public Prosecutor submitted that this fictitious case

set up by the defence, is absolutely false and unworthy of

credence. He further submitted that Smt. Bhanwari Devi herself

having been injured in the incident, no corroboration is required to

her testimony. In spite there of, evidence of Smt. Bhanwari Devi

(P.W.2), is fully corroborated by Adu Ram (P.W.5). He also drew

the Court's attention to the evidence of Madan Lal (P.W.6), the

Tehsildar, who proved the revenue record as per which, 1/6th

share of the field in question was entered in the name of the

deceased Shri Gorakh Singh. Attention of the Court was also

drawn to the statement of the Investigating Officer Mr. Badri Singh

(P.W.10), who proved the injunction order Ex.P.45 dated

21.09.1989 issued in the revenue suit preferred on behalf of the

deceased Gorakh Singh wherein, the accused Mukund Singh was

one of the respondents. Learned Public Prosecutor thus, submitted

that the fact regarding old land dispute between the parties was

well established. The deceased had procured an injunction against

the accused party, who became infuriated as a result thereof. It is

with this motive that the accused persons trespassed into the field

(12 of 21) [CRLA-139/1992]

where two victims were sleeping. Multiple injuries totalling to 21,

were inflicted on the head, abdomen and the sternal region of Shri

Gorakh Singh who died at the spot. When autopsy was carried

upon the dead body of Shri Gorakh Singh, Ribs Nos.9 to 10 on the

left side, were found fractured, which led to laceration and rupture

of spleen. The Medical Jurist clearly opined that the injuries

inflicted to Shri Gorakh Singh were cumulatively sufficient in the

ordinary course of nature to cause his death. Smt. Bhanwari was

caused fifteen injuries of which, two were fractures. By the very

fact that the accused inflicted a large number of injuries including

numerous on the vital body parts of the two helpless victims in the

dead of the night, the only inference which can be drawn is that

there intention was to commit murder. The trial court did not

record any acceptable reason for toning down charge attributed to

the accused persons from that under Section 302 IPC to one

under Section 304 Part I IPC and in acquitting the accused

persons from the charge under Section 307 IPC. Learned Public

Prosecutor, further submitted that even if it is presumed for

arguments sake, that the trial court was justified in toning down

the offence attributed to the accused from Section 302 IPC to

Section 304 Part I IPC, then also, there is no legal sanctity for

awarding sentence of five years only to the accused persons for

this offence.

Learned Public Prosecutor, sought acceptance of the State

appeals; implored the Court to either reverse the finding recorded

by the trial court whereby, the accused have been acquitted from

the charge under Section 302 IPC and to convict them for the said

(13 of 21) [CRLA-139/1992]

offences; sentence them to Life Imprisonment or, in the

alternative to enhance the substantive sentence awarded to the

accused persons for the offence punishable under Section 304 Part

I IPC to 10 years Rigorous Imprisonment. He also prayed that

acquittal of the accused from the charge under Section 307 IPC is

unjustified and sought reversal of this finding in the impugned

judgment dated 25.03.1992 with suitable alteration in sentence.

Per contra learned Senior Counsel Mr. Manish Sisodia

assisted by Mr. Yogendra Singh, Advocate vehemently and

fervently opposed the submissions advanced by the learned Public

Prosecutor. He urged that the incident took place in the dead of

the night and thus, it cannot be believed that the injured witness

Smt. Bhanwari would have been in a position to precisely identify

the assailants. The prosecution theory that she managed to

identify the accused in the illumination of the chimney is an

afterthought and cooked up story and cannot be believed. His

alternative submission was that the incident took place in the dead

of the night and thus, the victims were at the mercy of the

accused who were seven in number but despite that, no significant

injuries were inflicted by the accused persons on the vital body

parts of either Gorakh Singh or Smt. Bhanwari Devi. He further

submitted that the Medical Jurist Dr. Jatanlal Baidh (P.W.9), did

not allege that any particular injury inflicted to Gorakh Singh was

sufficient in the ordinary course of nature to cause death.

Admittedly, the parties were having old enmity over agricultural

land and thus, even if grievous injuries were caused by the

accused persons on the non-vital body parts of Gorakh Singh, the

(14 of 21) [CRLA-139/1992]

only conclusion which can be drawn is that they neither intended

to cause death, nor did they possess knowledge that by causing

such injuries, they could cause death of Shri Gorakh Singh.

Regarding the offence under Section 307 IPC qua the injuries

caused to Smt. Bhanwari Devi, he urged that no injury was caused

on her vital body parts and thus, the trial court was justified in

acquitting the accused persons from the charge under Section 307

IPC. He thus, urged that the findings recorded by the trial court on

the aspect of the offences to be applied and the sentences

awarded are unassailable. He further submitted that the accused

Mukand Singh is about 94 years of age as on date and the

accused Girdhari is about 75 years of age whereas, the other

accused persons were between 21 to 30 years at the time of

incident. The accused have already served out the sentence of five

years awarded to them by the trial court and thus, it would be

nothing short of travesty of justice if they are sent back to prison

at this highly belated stage.

He thus, implored the Court to reject the State appeals and

dispose of the appeal preferred by the accused persons as they

have already suffered the sentences awarded by the trial court.

We have heard and considered the submissions advanced at

bar and have minutely reappriciated the evidence available on

record.

It is not in dispute that Smt. Bhanwari Devi (P.W.2) also

received injuries in the self same incident wherein, her husband

Gorakh Singh was caused fatal injuries, leading to his death and

thus, her presence at the place of incident cannot be doubted.

(15 of 21) [CRLA-139/1992]

Thus, the most material witness of prosecution is none other than

Smt. Bhanwari Devi (P.W.2). We now proceed to scrutinize and

analyze her testimony.

A thorough perusal of her statement would reveal that she

gave unflinching testimony, alleging that she and her husband had

cultivated the field located in Rohi of Dhega Village. Gwar, Bajra

and Moth had been sown by them. They had four sons of which,

the eldest resided in Guwahati. The remaining three used to reside

in Sardarshahar. She and her husband used to reside at the Dhani.

On the fateful day, they lied down after having dinner. They woke

up during the night and lit the chimney. Her husband asked her to

prepare tea. She was tinkering around when she saw that Mukand

Singh, Bhagirath, Omala, Shyamla, Shankariya, Girdhari and

Nirana Ram who were armed with Jeis and lathis, entering their

Dhani. She called out for her husband. Bhagirath shouted that

they shall be killed so that the field and other properties could be

got released. Her husband also came out. Bhagirath gave blow of

the Jei on the head of her husband. Nirana Ram gave a lathi blow

on her forehead. Thereafter, all started landing indiscriminate

blows to her and her husband. She could not pinpoint the specific

acts of the accused persons who also exhorted that all the articles

of the complainant party should be thrown out. After the assault,

the accused persons dragged the witness and her husband and

abandoned them in the field of Bhanwar Purohit. Confident that

both had died, the accused persons went away. She categorically

stated that the accused wanted to usurp their land situated in the

Village Patalisar. They thought that by eliminating the two old

(16 of 21) [CRLA-139/1992]

people, they could succeed in their evil design. They also took

away some valuable articles from the Dhani while going away. Adu

Ram, Naanji and Inder came around after break of dawn. Later

on, her son Radhakrishna came and the police report was filed.

On a perusal of extensive cross-examination conducted from

Smt. Bhanwari Devi, it comes out that vague suggestions were

given by defence regarding an old case of theft lodged by

Bhagirath Singh and Mukand Singh against her husband. Another

suggestion was given that she and her husband were trying to

take forcible possession of the Dhani and the field and that in this

process, some unknown persons assaulted and caused the injuries

to both of them. She emphatically denied this conjectural theory.

On an overall appreciation of the statement of Smt. Bhanwari

Devi, we do not find any infirmity, which can bring her testimony

into the realm of being unreliable or untrustworthy. She is a

wholly reliable injured eye-witness who has given clinching

evidence against the accused persons of committing criminal

trespass by night, brutally assaulting herself and her husband Shri

Gorakh Singh, the deceased, by use of Jeis and lathis. Thus,

presence and participation of the accused persons for the charges

of criminal trespass and of inflicting injuries to both the victims in

the dead of the night, is well established from the testimony of

Smt. Bhanwari Devi.

The next important witness of prosecution is the Medical

Jurist Dr. Jatanlal Baid (P.W.9). We have already reproduced the

details of injuries as per the Postmortem Report (Ex.P/28) and the

Injury Report (Ex.P/27) prepared by the Medical Jurist.

(17 of 21) [CRLA-139/1992]

A comprehensive appreciation of the evidence of Dr. Jatanlal

Baid, would indicate that though there was a lacerated wound on

the head of Shri Gorakh Singh but, this injury did not lead to any

fracture. Two ribs of the victim were found fractured. Likewise, the

tibia bone was fractured and the broken bone was exposed. Both

the hands of the victim were also fractured. There were bruises

and lacerations on the abdominal region. Multiple abrasions were

noticeable all over the back. The spleen was ruptured and 600 ml

blood had collected inside the abdomen of the victim due to

internal bleeding. As many as 15 injuries were caused to Smt.

Bhanwari Devi of which, two were fractures. The Medical Jurist

gave definite opinion to the effect that cumulative effect of the

injuries caused to Shri Gorakh Singh was sufficient in the ordinary

course of nature to cause death.

Manifestly, thus, the accused persons did not cause any

grievous injury on the head of the victim but undoubtedly, rib cage

area/thoracic region is equally a vital body part. As noted above,

large number of injuries were inflicted on this vital area of the

deceased's body leading to extensive internal damage and

haemorrage. As repeated blows of blunt weapons were inflicted all

over the body, some of which resulted into fractures, which led to

extensive damage to the ribs, legs and hands of the victim with

some of the fractures even exposing the bones, definitely, the act

of the accused would fall under clauses firstly and secondly of

Section 300 IPC, which read as below:-

"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

(18 of 21) [CRLA-139/1992]

causing death, or Secondly. 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 Thirdly. 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 Fourthly. 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."

For toning down the offence from Section 302 IPC, the

defence would be required to bring the case within one of the

exceptions to Section 300 IPC. However, in our firm opinion, none

of the exceptions would apply to the situation at hand because the

incident was perpetrated in a preplanned way by the well armed

accused persons in the dead of the night. The assailants were

fueled by the motive to usurp the field in relation whereto, a

dispute was going on; they trespassed into the Dhani where two

victims were sleeping. Without any provocation, both the victims

were brutally assaulted by the accused leading to the multiple

injuries described above. Hence, the judgment in the case of Adu

Ram Vs. Mukna And Ors. [(2005) 10 SCC 597] on which,

heavy reliance was placed by Shri Shishodiya, has no application

to the case at hand. In that case, a sudden altercation took place

between the parties followed by exchange of hot words and in

those peculiar circumstances, the Hon'ble Supreme Court held

that the case was covered by Section 304 Part II IPC. As stated

(19 of 21) [CRLA-139/1992]

above, the situation in the case at hand is entirely different.

Reliance was also placed by Shri Shishodiya on the Supreme Court

judgment in the case of Sanjeev & Anr. Vs. State of Himachal

Pradesh [(2022) 6 SCC 294] contending that interference in

the judgment of acquittal should only be made if no two views are

possible. For appreciating the said argument, we have reproduced

the findings recorded by the trial court whereby, it ventured into

toning down the offence from one under Section 302 IPC qua the

injuries caused to Gorakh Singh to Section 304 Part I IPC and

while recording acquittal from the charge under Section 307 IPC

qua the injuries caused to Smt. Bhanwari Devi. It is clear as

daylight that no discussion whatsoever was made by trial court

nor any legal reasoning was assigned as to why, the charge under

Section 302 IPC was being toned down to one under Section 304

Part I IPC. No rational finding was recorded for the acquittal of the

accused from the charge under Section 307 IPC. For the sake of

repetition, it may be mentioned that the trial court itself held that

the accused persons formed an unlawful assembly, trespassed into

the Dhani of the complainant party with the motive of ousting

them from the field in question and inflicted innumerable injuries

to the unsuspecting old aged victims. The medical evidence clearly

establishes that cumulative effect of the multiple injuries caused

to Shri Gorakh Singh was sufficient in the ordinary course of

nature. Thus, there was no justification whatsoever for the trial

court to have acquitted the accused persons from the charge

under Section 302 IPC and to have toned down the offence to one

under Section 304 Part I IPC. The finding so recorded by the trial

court is perverse and illegal. Likewise, while acquitting the

(20 of 21) [CRLA-139/1992]

accused from the charge under Section 307 read with Section 149

IPC regarding the injuries caused to Smt. Bhanwari Devi, the trial

court held that no grievous injury was caused to Smt. Bhanwari

Devi on any vital body part and thus, it could not be inferred that

the accused committed the offence of attempted murder. We feel

that this finding is also perverse on the face of the record.

Law is well settled that for adjudicating upon the charge for

attempted murder, the actual nature of injury is not relevant.

What is to be seen is as to whether, the accused inflicted the

injuries with the intention to cause death. In the case at hand, as

has been held above, the accused persons who were seven in

number, were armed with Lathis and Jeis; they trespassed into the

field of victim in the dead of the night and inflicted multiple

injuries to the helpless old couple. One expired whereas, the other

somehow survived because the accused abandoned the victims

believing that both had died. Thus, unquestionably intention of the

accused was to kill Smt. Bhanwari as well.

Thus, acquittal of the accused from the charge under Section

307 IPC is also not sustainable.

No other view except recording conviction of the accused

persons for the charges under Sections 302 IPC & 307 IPC is

permissible in view of the discussion made above of the factual

and legal issues involved.

As a consequence, the appeals preferred by the State are

accepted. The findings recorded by the trial court whereby, the

accused were acquitted from the charges under Sections 302 read

(21 of 21) [CRLA-139/1992]

with Section 149 IPC and Section 307 read with Section 149 IPC,

are reversed. The accused are convicted for both these offences.

Offence punishable under Section 302 IPC/149 IPC carries

minimum sentence of Life Imprisonment.

Resultantly, for the offence punishable under Section 302 IPC

read with Section 149 IPC, the accused persons are awarded

sentence of Life Imprisonment and a fine of Rs.5,000/- each. In

default of payment of fine, they shall further undergo six months'

Rigorous Imprisonment.

For the offence punishable under Section 307 IPC read with

Section 149 IPC, the accused persons are awarded sentence of 5

Years' Rigorous Imprisonment and a fine of Rs.5,000/- each. In

default of payment of fine, they shall further undergo Rigorous

Imprisonment of five years.

All the sentences shall run concurrently.

All the accused are on bail. Their bail bonds are cancelled.

They shall be taken back in custody and will be committed to

prison for serving out the sentences.

As a consequence, the appeal No.139/1992 preferred by the

accused persons, being devoid of merit, is dismissed.

Record be returned to the trial Court.

                                   (FARJAND ALI),J                                       (SANDEEP MEHTA),J


                                   Devesh Thanvi/-









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