Citation : 2022 Latest Caselaw 12224 Raj
Judgement Date : 12 October, 2022
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No.270/1989
1. Mana Ram son of Shri Basta Ram,
2. Banshi Ram son of Shri Mana Ram,
3. Bhagirath son of Shri Jaga Ram,
4. Mohan Ram son of Shri Surja Ram,
5. Asha Ram son of Shri Dewa Ram,
All by caste Meghwal, residents of Sandila, Tehsil Jayal, District
Nagaour (Raj.)
(At present lodged in Central Jail, Jodhpur)
----Appellants
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. S.L. Jain
Mr. S.R. Sharma
For Respondent(s) : Mr. R.R. Chhaparwal, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
JUDGMENT
Date of pronouncement :::: 12/10/2022
Order reserved on :::: 11/07/2022
BY THE COURT : PER HON'BLE MEHTA, J.
1. The accused appellants Mana Ram, Banshi Ram, Bhagirath,
Mohan Ram and Asha Ram (Mana Ram and Bhagirath, since
deceased, appeal abated), were convicted and sentenced as
(2 of 17) [CRLA-270/1989]
below vide judgment dated 24.07.1989, passed by the Additional
Sessions Judge, Nagour, in Sessions Case No.42/1987 :-
Offence Fine and Sentence Default in
payment of
Fine(s)
302/149 IPC Life Imprisonment to each One Month's
accused with a fine in the sum Simple
of Rs.100/-. Imprisonment to
each accused.
147, 148 and Six Months' Simple Imprisonment to each
323/149 IPC accused.
325/149 IPC Fine of Rs.100/- to each One Month's
accused. Simple
Imprisonment to
each accused.
All the sentences were ordered to run concurrently.
2. They have preferred this appeal under Section 374(2) Cr.P.C.
for assailing their conviction and sentences awarded to them by
the learned trial court.
3. Brief facts relevant and essential for disposal of the appeal
are noted hereinbelow :-
4. Sunda Ram (P.W.13), gave an oral report (Ex.P/37) to the
SHO, Police Station Khatu on 16.03.1987 at about 04.45 AM,
alleging inter alia that he was a resident of Village Sandila. On the
previous night i.e. 15.03.1987, he was sleeping in his house. The
house of his brother Poorna Ram is located in close vicinity. Poorna
Ram was sleeping on a cot laid inside the courtyard of his house.
In late hours of night, he heard the cries of his sister-in-law
Dhapudi on which, he went out and saw that Poorna Ram was
(3 of 17) [CRLA-270/1989]
being assaulted by Mana Ram son of Basta Ram, Banshi Ram son
of Mana Ram, Harkaran and Bhagirath sons of Jaga Ram, Ghota
Ram son of Bhagirath Ram, Bhiya Ram son of Kana Ram, Mohan
Ram son of Shri Surja Ram, Asha Ram son of Shri Dewa Ram all
by caste Meghwals, residents of Village Sandila. Mana Ram and
Banshi Ram were armed with farsis and others were having lathis.
Poorna Ram had fallen on the ground in an injured condition and
Dhapudi was lying on top of him in an attempt to save her
husband. The informant's nephew Mangi Lal and his brother Bhagu
Ram also made efforts to save the victims. All the accused persons
were indulging in the assault. Ghasi Ram and Bhanwara Ram,
came to the spot and tried to intervene on which, the assailants
went away.
His brother Poorna Ram had been given a farsi blow on his
head and was bleeding profusely. Blunt weapon injuries were
noticeable on left side of abdomen and the chest area. They lifted
Poorna Ram and placed him on a cot but by that time, he had
expired as a result of injuries inflicted to him. Mangilal, Bhagu
Ram and Dhapudi, also received injuries in the self same incident.
It was alleged that the reason behind the assault was a quarrel
which happened couple of days earlier, the accused Tola Ram and
the informant's nephew Banshi over a trivial incident while playing
Gher at Holi. The accused persons got enraged by this incident
and as a result thereof, they assaulted and killed Poorna Ram.
5. On the basis of this report, an FIR (Ex.P/34, No.7/1987),
came to be registered at the Police Station Khatu, District Nagour
for offences punishable under Sections 302, 323, 325, 147, 148
and 149 IPC. Investigation was undertaken by Shri Chiranji Lal
(4 of 17) [CRLA-270/1989]
(P.W.18), SHO, Police Station Khatu, who proceeded to the place
of incident and conducted following steps of investigation :-
1. Examined the place of incident and prepared Site Inspection
Plan (Ex.P/8) and Haalat Mauka (Ex.P/7)
2. Prepared the Fard Surat Haal Laash (Ex.P/9)
3. Seized clothes of the deceased and recorded the same in
Seizure Memo Ex.P/10.
4. Prepared the Panchnama (Ex.P/11) and with the consensus
of the Panchas, determined the cause of death to be head
injury.
6. The dead body of Poorna Ram was forwarded to the
Government Hospital, Jayal for autopsy. His blood stained clothes
were seized. The accused were arrested and in furtherance of their
disclosure statements under Section 27 of the Evidence Act,
recoveries were effected, which are noted hereinbelow in a tabular
form for the sake of ready reference. The seized articles were
forwarded to the FSL, Jaipur for Serological examination :-
Sr. No. Name of Informatio Details of Information Recovery Details of
the n Memo Memo Memo Recovery
Appellant Memo
1. Bhagirath Ex. P38 dt. Pertaining to the place Ex. P6 dt. One blood 18-03-87 at where blood covered 19-03-87 stained lathi 07:30 AM lathi (stick) had been (stick) hidden
2. Mana Ex. P42 dt. Pertaining to the place Ex. P2 dt. One used Ram 20-03-87 where blood covered 21-03-87 and old lathi (stick) had been bamboo hidden stick (lathi) black in color and had been
(5 of 17) [CRLA-270/1989]
inscribed with '2' on the bottom part of the stick which had a blood stain as well
3. Banshi Ex. P43 dt. Pertaining to the place Ex. P3 dt. One blood Ram 20-03-87 at where blood covered 21-03-87 stained 07:45 AM pharsi (sickle) was pharsi attached to a black (sickle) was colored stick, had been attached to a hidden black colored stick
4. Mohan Ex. P44 dt. Pertaining to the place Ex. P13 dt. One ber tree Ram 01-04-87 at where a bordi tree 02-04-87 stick which 09:00 AM (Indian Jujube) stick had been which had been wrapped encased in in white colored leather, white had been hidden colored leather
5. Asha Ram Ex. P45 dt. Pertaining to the place Ex.P46 One ber tree 18-04-87 at where a bordi tree(Indian dt.18-04-87 crooked 06:00 AM Jujube) stick which had stick which been wrapped in white had its bark colored leather, had been peeled and hidden hanging out.
The stick
was thick on
one end and
thin on the
other.
6. Ghisa Ex. P39 dt. Pertaining to the place Ex. P4 dt. One blood
Ram 18-03-87 at where blood covered 19-03-87 stained 6ft
08:00 AM lathi (stick) had been lathi (stick)
hidden which was
from ber tree
and had its
bark peeling
tapered.
7. Bhiya Ex. P40 dt. Pertaining to the place Ex. P5 dt. One babool
Ram 19-03-87 at where blood covered 21-03-87 tree stick
08:00 AM lathi (stick) had been which had
hidden its bark
peeling
tapered. The
stick was 5
½ ft. long.
8. Harkaran Ex. P41 dt. Pertaining to the place Ex. P1 dt. One blood 20-03-87 at where lathi (stick) had 21-03-87 stained lathi 08:00 AM been hidden (stick) which was used and old.
(6 of 17) [CRLA-270/1989]
7. After concluding investigation, the SHO proceeded to file a
charge-sheet against eight accused persons namely; Mana Ram
son of Basta Ram, Banshi Ram son of Mana Ram, Harkaran son of
Mana Ram, Bhagirath son of Jaga Ram, Ghasi Ram son of
Bhagirath, Bhiya Ram son of Kana Ram, Mohan Ram son of Surja
Ram and Asha Ram son of Deva Ram, all by caste Meghwal, for
the offences punishable under Sections 302, 325, 323, 147, 148
and 149 IPC. As the offence punishable under Section 302 IPC,
was Sessions triable, the case was committed to the court of
Additional Sessions Judge, Nagour for trial.
8. The learned trial court, framed charges against all eight
accused persons for the offences mentioned above. They pleaded
not guilty and claimed trial. The prosecution examined as many as
18 witnesses and exhibited 47 documents to prove its case. The
accused were questioned under Section 313 Cr.P.C. and when
confronted with the allegations appearing against them in the
prosecution case, they claimed to be innocent and stated that they
had been falsely implicated in the case. One witness was
examined in defence. Upon hearing the arguments advanced by
the prosecution and the defence counsel and appreciating the
evidence available on record, the learned trial court, proceeded to
acquit three accused persons namely Harkaran, Ghasi Ram and
Bhiya Ram from the charges. However, five original appellants
were convicted and sentenced as above upon which, the instant
appeal has been preferred under Section 374(2) Cr.P.C. It may be
reiterated that the accused appellant No.1 Mana Ram and the
accused appellant No.3 Bhagirath, passed away during pendency
(7 of 17) [CRLA-270/1989]
of the appeal and hence, the appeal to their extent, stands
abated.
9. Learned counsel Shri S.L. Jain and Shri S.R. Sharma,
representing the appellants, vehemently and fervently contended
that the entire prosecution case is false and fabricated. The
prosecution witnesses were bearing ill will against the accused
appellants and they gave patently false evidence while implicating
the accused appellants for the alleged incident. The testimony of
the material prosecution witnesses is contradicted by the medical
evidence. When Dr. Phool Chand (P.W.10) carried out postmortem,
only a single blunt weapon injury was found on the body of the
deceased Poorna Ram and thus, the allegation of the prosecution
witnesses that as many as eight accused persons rained
indiscriminate blows on Poorna Ram, is falsified. The accused
Mana Ram also received significant injuries in the self same
incident and the prosecution did not offer any explanation for his
injuries and hence, the testimony of the eye-witnesses deserves
to be discarded.
Their alternative submission was that even if the allegations
levelled by the prosecution eye-witnesses are to be accepted, then
also, apparently their testimony is corroborated only to the extent
of a solitary injury inflicted on the head of Shri Poorna Ram. None
of the witnesses, made specific allegation against any of the
accused appellants regarding the said head injury. The incident
took place at the spur of the moment without any premeditation
and thus, involvement of the accused appellants in this case with
the aid of Section 149 IPC, is totally unjustified. They further
(8 of 17) [CRLA-270/1989]
submitted that even the allegations levelled by the prosecution
eye-witnesses in their sworn testimony were to be accepted, the
accused can at best be held guilty for the offence punishable
under Section 325 IPC.
On these grounds, learned defence counsel implored the
Court to accept the appeal, set aside the impugned judgment and
acquit accused appellants of the charges.
10. Per contra, learned Public Prosecutor, vehemently and
fervently opposed the submissions advanced by the appellants'
counsel. He urged that the witnesses Mangilal (P.W.1), Dhapudi
(P.W.12) and Bhagu Ram (P.W.3), themselves, received injuries in
the same incident. They gave unimpeachable testimony against
the accused and remained unshaken from their stance, despite
prolonged cross-examination. They had no enmity whatsoever
with the accused persons which could instigate them to falsely
implicate the appellants for the incident. The accused appellants
assaulted the unarmed victim Shri Poorna Ram without any
provocation. A grave injury was inflicted on the head of Shri
Poorna Ram, which was specifically attributed by the injured
witnesses Smt. Dhapudi (P.W.12) to the accused Banshi Ram. The
witness also alleged that the other accused persons also rained
indiscriminate blows upon her husband. She, her son Mangilal and
Bhagu Ram intervened and tried to save Poorna Ram on which,
they too were beaten and received numerous injuries in the same
incident. Thus, it is apparent that the accused persons formed an
unlawful assembly and launched the premeditated assault on the
(9 of 17) [CRLA-270/1989]
victim Poorna Ram and his family members, with the sole
objective of killing him.
He also drew the Court's attention to the testimony of the
Medical Jurist Dr. Arjun Ram (P.W.9), who proved the injuries of
Smt. Dhapudi, Bhagu Ram and Mangilal and Dr. Phool Chand
(P.W.10), who conducted autopsy and issued postmortem report of
Shri Poorna Ram and urged that the large number of injuries were
caused to the injured persons and the deceased and the medical
evidence fully corroborates the testimony of the eye-witnesses
and hence, the trial court was perfectly justified in convicting and
sentencing the appellants as above.
Concluding his arguments, he implored the Court to dismiss
the appeal and affirm the impugned judgment of conviction and
the sentences awarded to the appellants by the trial court.
11. We have given thoughtful consideration to the submissions
advanced at bar and have gone through the impugned judgment
and re-appreciated the evidence thoroughly.
We now proceed to analyze and appreciate the evidence of
the material prosecution witnesses.
12. The FIR Ex.P/34 was lodged by Sunda Ram (P.W.13) on
16.03.1987 at Police Station Badi Khatu, District Nagour at 4.45
AM i.e. soon after the incident. Thus, the report was filed without
any delay. Sunda Ram stated on oath that he was sleeping at his
house. He heard noise of commotion on which, he came out of his
house and saw the eight accused persons abusing Poorna Ram.
The informant intervened and requested the accused persons to
(10 of 17) [CRLA-270/1989]
refrain from indulging in the quarrel but they did not desist.
Banshi Ram and Mana Ram started raining blows. Owing to the
darkness, the witness could not ascertain whether the assault was
made with the sharp side or the reverse side of the Kassi. His
sister-in-law Dhapudi, nephew Mangilal and brother Bhagu Ram
also reached the place of the incident. Poorna Ram fell down on
the ground in an injured condition. The accused persons also
assaulted Dhapudi, Bhagu Ram and Mangilal. Ghasi Ram and
Bhanwararam also came at the spot. The accused Mana Ram fell
down on the stones which were lying at the place of incident. The
accused persons went away after assaulting the victims. Poorna
Ram was given blows on the abdomen and other parts of the body
by Mana Ram, etc. An altercation had taken place between Banshi
Ram and Tola Ram on the previous day during playing Gher at Holi
festivities and that is why, the accused persons indulged in the
assault. The witness proved the FIR Ex.P/34.
In cross-examination, the witness denied the defence
suggestion that the incident had already taken place before he
reached the spot. He was confronted with certain omissions vis-a-
vis his sworn testimony and the FIR Ex.P/34 to which, he offered
an explanation that he had given out all the details but he could
not explain as to why the specific allegations/overt acts of causing
the injuries to the deceased were not mentioned in the FIR.
13. Mangilal (P.W.1), being an injured witness, stated that his
father was sleeping in the open area outside their house. The
accused persons came there and started hurling abuses because
of an incident which took place on the previous day. His father told
(11 of 17) [CRLA-270/1989]
them to refrain from using profanities but, the accused started
assaulting Shri Poorna Ram who cried out. On hearing the shouts,
he and his mother ran out and saw that his father was being
assaulted and had fallen on the ground. He and his mother fell on
top of his father in an attempt to save him and the accused
inflicted injuries to them as well. Asha Ram gave him a lathi blow
on the hand and Ghasi Ram gave him a lathi blow on the chest.
Resultantly, his hand got fractured. His uncle Bhagu Ram came
there on which, he too was assaulted. He, his mother as well as
his uncle Bhagu Ram, all received injuries in this incident. His
father Poorna Ram expired at the spot as a result of the injuries
inflicted to him by the accused.
14. The witness Smt. Dhapudi, upon being examined as
(P.W.12), stated that her husband was sleeping outside their
house. She was sitting nearby. Eight assailants came and started
hurling abuses. Her husband requested them to refrain upon
which, the assailants launched an indiscriminate assault on him.
Banshi Ram gave a farsi blow on the head of her husband and
Mana Ram gave a farsi blow on his chest. She tried to intervene
for saving her husband on which, she too was assaulted. Her son
Mangilal and her brother-in-law Bhagu Ram also came around and
tried to save Shri Poorna Ram on which, they too were beaten.
Bhagirath gave lathi blow on her hand which got fractured. She
received injuries on her hands, back and legs. The accused Mana
Ram and Banshi Ram, were armed with farsis. The remaining
accused persons were armed with lathis and all participated in the
assault. The accused Mana Ram, fell down on the stones while
(12 of 17) [CRLA-270/1989]
running away and received injuries. Sunda Ram went and reported
the matter to the police. She showed her injuries to the doctor.
In cross-examination, the witness stated that Banshi Ram
and her brother-in-law's son had quarreled in the Holi Gher and
that is why, the incident took place. She was not sure whether the
farsi blows were given from the sharp side or the reverse side.
Both Mana Ram and Banshi Ram, inflicted injuries on her
husband's head. Mana Ram also inflicted an injury on his chest.
15. Now, we proceed to discuss evidence of the Medical Jurist Dr.
Phool Chand (P.W.10), who conducted autopsy upon the dead
body of Poorna Ram. The doctor stated that a solitary lacerated
wound admeasuring 4cm x 0.5cm muscle deep was noticed on the
right parietal region of the victim. The cranium, spinal cord and
the right parietal temporal bone, were fractured till the base of the
skull. Membranes of the brain were torn and bleeding. A laceration
was noticed on the right side of the brain. Cause of death was
opined to be the head injury. Apparently, thus, the Medical Jurist,
noticed a single injury on the head of the deceased which was
caused by a blunt weapon.
Resultantly, the case set up by the prosecution eye-witnesses
in their evidence that the two assailants Banshi Ram and Mana
Ram inflicted Kassi blows on the head and that the remaining
assailants also inflicted lathi blows on other body parts of Shri
Poorna Ram, is not corroborated but rather contradicted by the
evidence of the Medical Jurist.
(13 of 17) [CRLA-270/1989]
16. If we consider the allegations as set out in the evidence of
the three material eye-witnesses, it becomes clear that the motive
for the incident as has been alleged by them, was a trivial quarrel
which took place between Banshi Ram and Mana Ram, nephew of
the deceased Poorna Ram on the previous day. It is undisputed
that this quarrel was the only motive portrayed by the prosecution
witnesses for the assault made on Poorna Ram. It is our opinion
that it does not stand to reason that the accused would be
instigated so intensely owing to a trivial quarrel during Holi
Festivities, that they would launch a murderous assault on the
family members of Mana Ram and to be specific, his uncle Poorna
Ram. Thus, the theory of motive is not very convincing. It rather
appears that the prosecution witnesses have suppressed the true
genesis of occurrence. As per the pertinent allegations levelled by
the prosecution witnesses, the accused Banshi Ram and Mana
Ram were armed with farsis (sharp weapon) and the remaining six
accused were armed with lathis and that all of them, launched an
indiscriminate assault on Shri Poorna Ram, causing him large
number of injuries. However, this allegation is not corroborated
and is rather contradicted by the medical evidence as noted
above. It may be stated here that the accused Mana Ram also
received injuries in this very incident. Though, the injuries were
not very significant but the fact remains that the prosecution
witnesses tried to put forth an explanation for these injuries
alleging that Mana Ram was running away from the place of
incident when he fell down on the stones and got hurt. Darkness
was admittedly prevailing at the time of incident and it would not
have been possible for the witnesses to have seen how Mana Ram
(14 of 17) [CRLA-270/1989]
received injuries more particularly, when they were themselves in
distress. Thus, the explanation given by the witnesses for the
injuries of Mana Ram is not very convincing. It is clear that the
prosecution witnesses have concealed the true genesis of the
incident. Their evidence is contradicted by the medical evidence
on the very material aspect of number of injuries caused to the
deceased. The accused persons and the complainant party are
residents of the same vicinity and also hail from the same
community and had no significant animosity. Hence, it is our firm
opinion that it would not be safe to convict the accused persons by
invoking the provision of vicarious liability i.e. Section 149 IPC and
as a consequence, the court would be required to identify the
individual role of the accused persons for fixing their liability qua
the charge of murder.
The witness Mangilal (P.W.1) did not attribute any particular
injury caused to the deceased Shri Poorna Ram to any assailant.
His testimony qua the specific role of the accused is limited to the
injuries which he himself received in the incident. The witness
clearly admitted that his father received only one injury on his
head.
Shri Bhagu Ram (P.W.3), stated that Mana Ram and Banshi
Ram were armed with farsis and the others were armed with
lathis. Mohan Ram inflicted a lathi blow on his hand. Regarding the
injuries inflicted to Poorna Ram, this witness also gave vague
evidence alleging that Poorna Ram received injuries on his head
by a farsi, on the abdomen and back by lathis. He pertinently
stated that Banshi Ram gave the farsi blow on the head of Poorna
Ram. Thus, as per the statement of this witness, the head injury
(15 of 17) [CRLA-270/1989]
caused to Shri Poorna Ram, is specifically attributed to Banshi
Ram, who was armed with a farsi, which is a sharp weapon.
Manifestly, there is contradictory version in the evidence of
the material witnesses regarding the head injury caused to the
deceased Poorna Ram, with Dhapudi alleging that both Banshi
Ram and Mana Ram, inflicted the head injury to the deceased and
Shri Bhagu Ram, attributing the head injury only to Banshi Ram.
Regarding the side from which, the farsi was landed whether
sharp or reverse, as the incident took place in the cover of
darkness, the witnesses would not be in a position to notice this
aspect with certainty.
The evidence of the Medical Jurist Dr. Phool Chand (P.W.10),
makes it clear that only a solitary injury was observed on the head
of the deceased and that too was a lacerated wound.
Apparently, thus, the evidence of the prosecution witnesses
is acceptable only to the extent, they attributed the head injury
caused to the deceased Poorna Ram to the accused Banshi Ram.
17. The version of the eye-witnesses wherein, the accused Mana
Ram attributed a head injury to the deceased is an exaggeration
and deserves to be discarded. The only conclusion, which can
safely be drawn after a threadbare appreciation of the prosecution
evidence is that an altercation took place between the family
members of the opposing functions during the Holi Gher on the
previous day. During the night time, verbal abuses were
exchanged between the parties whereafter, tempers flared up and
a scuffle started and in this sudden quarrel, Banshi Ram inflicted a
solitary blow by the reverse side of the farsi on the head of the
(16 of 17) [CRLA-270/1989]
deceased Shri Poorna Ram, which proved fatal. Thus, Banshi Ram
was singularly liable for the offence under Section 302 IPC. Lathi
blows were inflicted by the two surviving accused persons Mohan
Ram and Asha Ram to the injured persons namely Dhapudi,
Mangilal, Bhagu Ram, resulting into simple as well as grievous
injuries and thus, these two accused appellants are liable to be
convicted for the offences punishable under Sections 323/34 and
325/34 IPC.
Conviction of the accused appellants Asha Ram and Mohan
Ram for the offence punishable under Sections 302/149 IPC,
325/149 IPC and 323/149 IPC, is not sustainable in the eyes of
law.
18. As a consequence, the appeal deserves to be accepted in
part. The impugned judgment is modified. The two surviving
accused appellants Mohan Ram and Asha Ram are acquitted from
the charges for the offence punishable under Sections 302/149,
325/149 and 323/149 IPC. However, they are convicted for the
offences punishable under Sections 323/34 and 325/34 IPC. The
accused Asha Ram had suffered 2 months and 14 days
imprisonment whereas, the accused Mohan Ram has suffered
actual imprisonment of 2 months and 29 days and thus, it would
not be justifiable to send them back to the prison at this belated
stage i.e. after 35 years of the incident. Both the accused are
sentenced to the period already undergone by them.
Conviction of the accused Banshi Ram is altered from the
offence punishable under Section 302/149 IPC to one under
Section 302 IPC simpliciter, and for the said offence, he is
(17 of 17) [CRLA-270/1989]
sentenced to Life Imprisonment and a fine of Rs.5,000/- in
default, to further undergo six months' imprisonment.
The accused Mohan Ram and Asha Ram are on bail. Their
bail bonds are discharged. The accused Banshi Ram is also on bail,
his bail bonds are cancelled. He shall surrender before the trial
court within thirty days failing which, the learned trial court shall
issue a warrant for securing the arrest of the accused so that, he
can be committed to jail for serving the remainder of the
sentences.
19. The appeal is partly allowed in terms.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
Devesh Thanvi/-
Powered by TCPDF (www.tcpdf.org)
Publish Your Article
Campus Ambassador
Media Partner
Campus Buzz
LatestLaws.com presents: Lexidem Offline Internship Program, 2026
LatestLaws.com presents 'Lexidem Online Internship, 2026', Apply Now!