Rajasthan High Court - Jodhpur
Ram Swaroop And Ors vs State Of Rajasthan on 17 November, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
(1 of 14) [CRLA-70/1990]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 70/1990
1. Ram Sawrup son of Chagan Lal
2. Radhey Shyam son of Chagan Lal
3. Pappu @ Ramesh son of Chagan Lal
4. Raju son of Ram Sawrup
5. Dinesh son of Ram sawrup (expired on 03.04.2015)
6. Bal Kishan son of Chagan Lal (Since deceased - appeal
stands abated to his extend vide order dated 20.07.2000)
All residents of Radha Krishan Colony, P.S. Bhilwara, District
Bhilwara
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Manish Shisodia, Senior Advocate,
assisted by Mr. Yogendra Singh
For Respondent(s) : Mr. R.R. Chhaparwal, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Judgment
Date of pronouncement : 17/11/2022
Judgment reserved on : 19/07/2022
BY THE COURT : PER HON'BLE MEHTA, J.
This appeal under Section 374 CrPC is directed against
the judgment dated 31.01.1990 passed by the learned Sessions
Judge, Bhilwara in Sessions Case No.67/1987 arising out of FIR
No.201/1987 registered at the Police Station Kotwali, District
(2 of 14) [CRLA-70/1990]
Bhilwara, whereby the appellants herein were convicted and
sentenced as below :-
Name of the Offence for which Sentence, fine and
appellant convicted default sentence
awarded
Ram Sawrup Section 147 IPC One year's simple
Pappu imprisonment
Raju Section 302/149 IPC Life imprisonment
Dinesh alongwith a fine of
Rs.100/- and in default
of payment of fine,
additional simple
imprisonment of one
month
Section 323/149 IPC Three months' simple
imprisonment
Radhey Shyam Section 148 IPC One year's simple
imprisonment
Section 302/149 IPC Life imprisonment
alongwith a fine of
Rs.100/- and in default
of payment of fine,
additional simple
imprisonment of one
month
Section 323/149 IPC Three months' simple
imprisonment
Bal Kishan Section 148 IPC One year's simple
(Since deceased - imprisonment
appeal stands Section 302 IPC Life imprisonment
alongwith a fine of
abated to his Rs.100/- and in default
extent vide order of payment of fine,
additional simple
dated imprisonment of one
20.07.2000) month
Section 323/149 IPC Three months' simple
imprisonment
All the sentences were ordered to run concurrently.
The appeal was originally filed by six accused-
appellants. During the pendency of the appeal, appellant No.6 Bal
Kishan passed away and the appeal to his extent was dismissed as
(3 of 14) [CRLA-70/1990]
having abated vide order dated 20.07.2000. Appellant No.6
Dinesh also passed away on 03.04.2015. The death certificate
issued by the competent authority is placed on record. Thus, the
appeal is dismissed as having abated to the extent of the
appellant No.5 Dinesh as well.
Brief facts relevant and essential for adjudication of the
appeal are noted hereinbelow :-
Dara Singh (P.W.11) submitted a written report
(Ex.P/26) to the SHO, Police Station Kotwali, District Bhilwara on
18.05.1987 at about 08.20 p.m. alleging inter alia that in the
evening at about 8 o'clock, he and his father Ramchandra were
taking meals at their house. At that time, Sita Ram Rajput's wife,
who stays in the neighbourhood raised an alarm that Devkaran
and Dayaram Gurjar were being assaulted by Ram Sawrup, Bal
Kishan, Radhey Shyam, Pappu, Raju and Dinesh. The complainant
and his father proceeded towards the place of incident in an
attempt to save their neighbours Devkaran and Dayaram, on
which, Ram Sawrup and his companions exhorted that the
interveners had come and they should also be beaten. Saying so,
the accused diverted their attention towards them. Bal Kishan
was having a knife in his hand, whereas Radhey Shyam was
armed with a Gupti. Bal Kishan inflicted a blow of knife on the
abdomen of his father. Ramsawrup gave a blow of lathi on the
head of the informant. Meanwhile, all the accused were raising
exhortations of killing. Radhey Shyam caught hold of him and tried
to inflict a Gupti blow to him, on which, Subhash Singh Rathore,
who operates a flour mill, took him inside his shop and bolted the
(4 of 14) [CRLA-70/1990]
door to save him. The informant also received injuries on his
head, left hand fingers and right knee. Previously also, these
people had beaten Dayaram and he (the informant) had
intervened and thus, the assailants were bearing an ill will against
him. His father's condition was precarious and he had been
admitted to the hospital.
On the basis of this report, FIR No.201/1987 was
registered at the Police Station Kotwali for the offences punishable
under Sections 147, 148, 149/307 IPC and investigation was
commenced. Ramchandra expired as a result of the injuries
caused to him and thus, offence under Section 302 IPC was added
to the case. The dead body of Ramchandra was subjected to
autopsy at the hands of medical jurist Dr. Ramgopal (P.W.14)
posted at the M.G. Hospital, Bhilwara, who issued the postmortem
report (Ex.P/30) taking note of a solitary penetrating wound on
the left side of chest, which pierced the heart. The injury was
opined as sufficient in the ordinary course of nature to cause
death. The doctor also examined the injuries of Devkaran and
Dara Singh and issued the injury reports Ex.P/13 and Ex.P/25
respectively. The doctor also examined the injuries of the accused
Ramsawrup, Raju, Ramesh and Bal Kishan. The usual steps of
investigation were undertaken; the accused were arrested and
recoveries were made. Thereafter, a charge-sheet came to be
filed against the accused appellants and the expired accused Bal
Kishan and Dinesh for the offences punishable under Sections
302, 147, 148 and 149 IPC in the court of the concerned
Magistrate.
(5 of 14) [CRLA-70/1990]
As the offence under Section 302 IPC was Sessions
triable, the case was committed to the Court of Sessions Judge,
Bhilwara, where charges were framed against the accused
appellants in the following terms :-
Name of the appellants Offence for which charge framed
Ramsawrup Sections 147, 302/149 and 323
IPC and in the alternative
Section 323/149 IPC
Radhey Shyam Sections 148, 302/149 and 323
IPC and in the alternative
Section 323/149 IPC
Bal Kishan Sections 148, 302, 323 IPC and
in the alternative Section
323/149 IPC
Pappu @ Ramesh Sections 147, 302/149 and 323
Raju IPC and in the alternative
Dinesh Section 323/149 IPC
The accused appellants pleaded not guilty and claimed
trial. The prosecution examined as many as 18 witnesses and
exhibited 40 documents to prove its case. The accused were
questioned under Section 313 CrPC and upon being confronted
with the allegations appearing against them in the prosecution
evidence, they denied the same and claimed to have been falsely
implicated. 7 documents were exhibited, but no oral evidence was
led in defence.
Upon appreciating the arguments advanced by the
learned Public Prosecutor and the learned defence counsel and
evaluating the evidence available on record, the learned trial court
proceeded to convict and sentence the appellants as above.
Hence, this appeal.
(6 of 14) [CRLA-70/1990]
Mr. Manish Shisodia, learned Senior Advocate, assisted
by Mr. Yogendra Singh, representing the appellants, vehemently
and fervently contended that the entire prosecution case is false
and fabricated. The accused appellants had no animosity with the
deceased Ramchandra. A squabble was already going on between
Devkaran and Dayaram on the one hand and the accused-
appellants on the other. The deceased Ramchandra and his son
Dara Singh, the first informant, were interveners. The solitary
injury caused to the deceased has been attributed by the
witnesses to the accused Bal Kishan, who has since expired. Mr.
Shisodia submitted that in view of the admitted facts as set out in
the evidence of the material prosecution witnesses, the accused
appellants definitely did not constitute an unlawful assembly with
the objective of assaulting Dara Singh and his father deceased
Ramchandra and as such, the conviction of the accused appellants
for the offence punishable under Section 302 with the aid of
Section 149 IPC is totally unjustified. He submits that for the
simple injuries caused to the injured persons from the
complainant party, the surviving accused appellants have already
remained in custody for a significant period of time and thus, it
would not be expedient in the interest of justice to send them
back to prison after almost 35 years of the incident. He, thus,
implored the court to accept the appeal and set aside the
conviction of the appellants as recorded by the trial court for the
offences punishable under Section 302/149 IPC and Sections 147
and 148 IPC and to reduce the sentence awarded to the accused
appellants for the offences punishable under Section 323 IPC to
the period already undergone by them.
(7 of 14) [CRLA-70/1990]
Per contra, learned Public Prosecutor vehemently and
fervently submitted that the appellants were indiscriminately
assaulting Devkaran and Dayaram. The deceased Ramchandra
and his son Dara Singh, who were immediate neighbours, acted in
a bonafide manner; went to the spot and tried to disburse the
quarreling parties. The accused persons already bore a grudge
against Ramchandra and thus, the moment he arrived at the spot,
the common object of the unlawful assembly formed by the
accused got diverted and acting in furtherance of such common
object, Bal Kishan inflicted a forceful blow of knife on the chest of
Ramchandra, which proved fatal. Thus, the learned Public
Prosecutor urged that the trial court was perfectly justified in
convicting and sentencing the appellants as above and no
interference is called for in the impugned judgment. He implored
the court to dismiss the appeal in toto.
We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the
impugned judgment and have carefully re-appreciated the
evidence available on record.
It is an admitted position that the initial part of the
incident comprised of a quarrel, which took place between
Devkaran and Dayaram on the one side and the accused party on
the other side. Thus, firstly, we proceed to consider the evidence
of Devkaran and Dayaram.
Devkaran was examined as P.W.6. He stated in his
evidence that the incident took place on 18.05.1987 between
07.30 and 08.00 p.m. His brother Dayaram had come back from
(8 of 14) [CRLA-70/1990]
duty and was proceeding towards the flour mill of Subhash. An
altercation took place between Dayaram and Dinesh. Dinesh
threatened Dayaram, who did not react at that time and returned
home. Dinesh then called Raju from his shop. Both started
quarreling with each other. On hearing the noise, the informant
came out of his house and tried to pacify them. Ramsawrup
joined the fray and challenged them to a fight. In the meantime,
Radhey Shyam, Bal Kishan and Pappu came there. Bal Kishan was
having a knife in his hand, Pappu had a Dhariya, and Radhey
Shyam had a Gupti. They suddenly launched an attack on the
witness and his brother Dayaram. Ramchandra and Dara Singh
were taking meals in their house. Sohan Bai shouted that a fight
was going on, on which Ramchandra and Dara Singh came there
to intervene. On seeing them, the accused diverted their
attention towards these two persons. One of them inflicted a lathi
blow on the head of Dara Singh, who ran towards the flour mill of
Subhash. Radhey Shyam, Dinesh and Ramsawrup pursued him.
Pappu caught hold of Ramchandra and Bal Kishan inflicted a knife
blow on his chest. Ramchandra became unconscious and fell
down on the ground. The witness alleged that he and Dayaram
also received injuries in the incident. He attributed his own
injuries to Raju. He further stated that the accused ran away from
the place of incident after Ramchandra had fallen down. He went
to the Police Station Subhash Nagar to report the matter, but he
was directed to the Police Station Kotwali. Dara Singh and one
Master accompanied him to the police station. In cross-
examination, the witness stated that Dinesh and Dayaram were
quarreling at a short distance from their house. He came out on
(9 of 14) [CRLA-70/1990]
hearing the noise. 10 to 20 persons had collected there. The
people present at the scene placated Dinesh and Dayaram and
broke up the scuffle. Dinesh proceeded towards his shop. Raju
was also present when the quarrel between Dinesh and Dayaram
was going on, but he did not participate in the incident. Five
minutes later, Ramsawrup came there and started acting
offensively with the witness. Two minutes later, the fight broke
out. 20 to 25 persons collected there. At that time, Ramsawrup
was not having any weapon in his hand. Raju was also unarmed.
Pappu and Radhey Shyam were not present at the spot. They
came five minutes later and joined the fight.
Dayaram was examined as P.W.16. He gave evidence
almost on the same lines as Devkaran. However, the witness was
confronted with the part of his police statement, wherein he stated
that Radhey Shyam gave the Gupti blow on the chest of
Ramchandra. The witness denied having given such statement to
the police.
Now we proceed to discuss the evidence of the first
informant Dara Singh (P.W.11), who stated that the incident took
place on 18.05.1987 at around 07.30 to 08.00 p.m. He and his
father Ramchandra were present in their house and were taking
meals. Sitaram's wife, who lives in their neighbourhood, came
around and carried out that Devkaran and Dayaram were being
beaten by Bal Kishan, Ramsawrup, Radhey Shyam, Dinesh, Pappu
and Raju. On hearing this, he and his father went to the scene to
stop the fight. The accused persons diverted their attention
towards them and exhorted that the busybodies (Maharathis) had
(10 of 14) [CRLA-70/1990]
come and they should also be beaten. Saying so, the accused
surrounded them. Pappu caught hold of his father from back and
Bal Kishan inflicted a knife blow on the left side of his chest. The
accused then diverted their attention towards him. He rushed
towards the flour mill of Subhash and went inside. Subhash
closed the door of the shop. Ramsawrup gave him a lathi blow on
the head and Raju gave him blow by iron rod on right knee and
fingers. 10 to 15 minutes later, he came out of the shop and
proceeded to the Police Station Kotwali and lodged the report
(Ex.P/26). When he came out of the shop, he did not see his
father. In cross-examination, the witness stated that when he and
his father came out of their house, many other people from the
neighborhood had already collected at the quarrel scene. The
accused were beating Devkaran and Dayaram, who are their
neighbours. He did not catch hold of anyone. He pleaded with
the accused and tried to break up the fight. His father followed
him. There were 50 to 60 bystanders at the spot, but no one
intervened. He requested all the accused to stop the violence. He
did not see where Devkaran and Dayaram received the injuries.
Upon appreciation of the evidence of all the three eye-
witnesses referred to supra, it becomes apparent that there was
no significant animosity between the deceased Ramchandra and
his son Dara Singh on the one hand and the accused party on the
other hand. The prosecution has come out with an allegation that
the accused appellant Pappu caught hold of the deceased
Ramchandra and taking advantage of this opportunity, Bal Kishan
inflicted the fatal knife blow on his abdomen. However, this
(11 of 14) [CRLA-70/1990]
allegation does not find place in the written report (Ex.P/26)
lodged by Dara Singh on 18.05.1987. Devkaran (P.W.6) as well as
Dara Singh (P.W.11) made this allegation in their sworn testimony.
However, in cross-examination, Dara Singh stated that Pappu and
Dinesh had caught hold of Dayaram. Even in his previous police
statement (Ex.D/1), Devkaran (P.W.6) did not mention that the
accused Pappu had caught hold of Ramchandra when Balkishan
gave the fatal blow of knife on his abdomen. Apparently, thus,
there is a contradiction regarding the allegation attributed to
Pappu that he had caught hold of the deceased while the accused
Bal Kishan inflicted knife blow to him.
In the statement of Dayaram (P.W.16), there is an
apparent contradiction because he in his investigational statement
(Ex.D/2) allged that Radheyshyam gave a fatal knife blow to the
deceased Ramchandra. The witness was also confronted with his
police statement (Ex.D/2), wherein there is no such assertion that
the accused appellant had caught hold of the deceased
Ramchandra when the fatal knife blow was inflicted to him. Thus,
there are grave contradictions in the statements of the
prosecution witnesses qua the allegation attributed to the accused
Pappu of catching hold of the deceased. Thus, the allegation so
made is not reliable and believable.
There is significant inconsistency in the statements of
Devkaran and Dayaram regarding the sequence in which the
quarrel took place. Ramchandra and Dara Singh allegedly went to
the spot as interveners and tried to break up the quarrel, which
was already going on between the accused party on the one hand
(12 of 14) [CRLA-70/1990]
and Devkaran and Dayaram on the other. At that point of time,
one of the accused, namely, Bal Kishan, seems to have diverted
his attention to Ramchandra and gave a single blow of the knife
to the victim, which proved fatal. In these circumstances, we are
of the firm view that the accused persons cannot be held liable for
the charge of murder by virtue of Section 149 IPC. There was no
unlawful assembly and a random quarrel was going on between
some of the accused on one side and Devkaran and Dayaram on
the other. There was neither any previous motive nor any
immediate cause for the accused to have assaulted the deceased.
Admittedly, the accused persons other than Bal Kishan, did not
cause any injury to Ramchandra. Hence, we are of the opinion
that invocation of the provision of vicarious liability by virtue of
Section 149 IPC so as to hold the accused other than Bal Kishan
responsible for the murder of Ramchandra is unwarranted and
unjustified.
Thus, there are no elements of constitution of an
unlawful assembly in the incident and since the accused persons
inflicted simple injuries to the injured Devkaran and Dayaram,
they can be held guilty only for the offence punishable under
Section 323 IPC simplicitor.
Our view is fortified by the judgment rendered by the
Hon'ble Supreme Court in the case of Vajrapu Sambayya Naidu
& Ors. Vs. State of AP & Ors. ([2003] 0 AIR(SC) 3706),
wherein it has been held that :-
"20. Even assuming that the right of private defence of
persons did not accrue to the appellants and that, in
(13 of 14) [CRLA-70/1990]
fact, they exceeded their right of private defence of
property, it has to be seen as to which of the accused
exceeded that right. It is well settled that in a case
where the court comes to the conclusion that the
members of the defence party exceeded the right of
private defence, the court must identify and punish
only those who have exceeded the right. Section
34/149 IPC will not be applicable in the case of persons
exercising their right of private defence. [See: State
of Bihar v. Mathu Pandey, 1970(1) SCR 358 and
Subramani v. State of Tamil Nadu, 2002(7) SCC
210]. For the same reason, the appellants cannot be
held guilty of the offence under Section 148 IPC,
because nothing is an offence which is done in the
exercise of the right of private defence."
Consequently, the appeal deserves to be and is hereby
accepted in part. Conviction of the surviving appellants (1) Ram
Sawrup (2) Radhey Shyam (3) Pappu @ Ramesh and (4) Raju
as recorded by the trial court for the offences punishable under
Section 302/149 IPC and Sections 147, 148 and 323/149 IPC is
hereby quashed and set aside. However, these accused persons
are convicted for the offence punishable under Section 323 IPC.
They have suffered substantive imprisonment for a period of
almost three months during trial and post conviction. The incident
took place in the year 1987 and more than 35 years have elapsed
since then. Hence, we feel that it would be totally unjustified to
direct that the accused persons should be sent back to prison at
this belated stage. Consequently, the substantive sentence
awarded to the appellants Ram Sawrup, Pappu, Raju and Radhey
Shyam for the offence under Section 323 IPC is reduced to the
(14 of 14) [CRLA-70/1990]
period already undergone by them. They are on bail and need not
surrender.
However, keeping in view the provisions of Section
437-A CrPC, each of the appellants shall furnish a personal bond
in the sum of Rs.40,000/- 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 present judgment, on receipt of notice
thereof, the appellants shall appear before the Supreme Court.
The appeal is partly allowed in the above terms. The
record be returned to the trial court.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
Pramod/-
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