Madan Lal S/O Mathura Lal vs State Of Rajasthan
2023 Latest Caselaw 5542 Raj/2

[2023:RJ-JP:24494-DB]

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

               D.B. Criminal Appeal No. 94/1985

1. Madan Lal S/o Mathura Lal, Aged About 25 Years, R/o
Gorakhpura Ps Kawai Kota
2. Shri Satya Narain, S/o Shri Mathuralal, aged 22 years,
R/o Goruakhpura Ps Kawai Kota
3.    Shri Kishanlal, S/o Shri Mathuralal, aged 28 years,
R/o Goruakhpura Ps Kawai Kota
4. Shri Mathuralal, S/o Shri Kanhaiyalal, aged 65 years
                                                ----Accused-Appellants
                                  Versus
State Of Rajasthan
                                                            ----Respondent

Connected With D.B. Criminal Appeal No. 25/1985

1. Hansraj, S/o Shri Janki Lal, aged 36 years, R/o village Gorakhpura, Police Station Kawai, District Kota

2. Dhanna Lal, S/o Shri Janki Lal, Aged 33 years, R/o village Gorakhpura, Police Station Kawai, District Kota

----Accused-Appellants Versus State of Rajasthan

----Respondent D.B. Criminal Appeal No. 85/1985

1. Shri Dan Mal, S/o Shri Ram Kalyan, aged 50 years, R/o Gorakpura, Police Station Kawai, District Kota

2. Shri Babulal, S/o Shri Ram Kalyan, aged 38 years, R/o Gorakpura, Police Station Kawai, District Kota

----Accused-Appellants Versus State of Rajasthan

----Respondent

For Appellant(s) : Mr. Arvind Kumar Gupta, Sr. Adv.

assisted by Mr. Saurabh Pratap Singh Mr. Rinesh Kumar Gupta

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Mr. Anoop Meena Mr. Gaurav Sharma in CRLA No.94/1985 Mr. Jitendra Pandey with Mr. Pushpendra Pandey Mr. Anil Sharma in CRLA No.25/1985 Mr. Siddharth Bapna in CRLA No.85/1985 For State : Mr. Javed Choudhary, Addl. GA For Complainant : Mr. Mukesh Pal Jadoun with Mr. Anand Sharma

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL

Judgment

Reserved on :: 20/09/2023 Pronounced on :: 05/10/2023 (Per Hon'ble Pankaj Bhandari, J)

1. Accused-appellants have filed these appeals aggrieved by

the judgment of conviction and order of sentence dated 16.01.1985

passed by Addl. District & Sessions Judge, Baran, whereby the accused

appellants have been acquitted for offence under Section 307/149 IPC

and have been convicted and sentenced as under -

(i) For offence under Section 302/149 IPC- life imprisonment and fine of Rs. 100.

(ii) For offence under Section 447 IPC- fine of Rs. 500/- and in default of payment of fine, to further undergo, two months rigorous imprisonment.

(iii) For offence under Section 148 IPC- two years rigorous imprisonment.

(iv) For offence under Section 325/149 IPC- One year rigorous imprisonment and fine of Rs.300/-

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and in default of payment of fine, to further undergo, one month rigorous imprisonment.

(v) For offence under Section 324/149 IPC- fine of Rs. 500/- and in default of payment of fine, to further undergo, two months rigorous imprisonment.

(vi) For offence under Section 323/149 IPC- fine of Rs. 300/- and in default of payment of fine, to further undergo, one month rigorous imprisonment.

All the sentences were directed to run concurrently.

2. Succinctly stated the facts of the case are that on

04.10.1980, PW-1 (Kajodi Lal) gave a written report (Ex.P-1) at Police

Station, Kawai, District Kota, wherein he stated that on 04.10.1980 at

around 4:00 pm, he and his brother Bheru Lal (deceased) and his

uncle Ramgopal & Ramcharan were sitting outside their home, when

Prahlad (PW-6), who had taken the buffaloes for grazing, came

towards them from the direction of Khali which was on the way of

Halgana and Mandula and told them that Satyanarayan and Madanlal

had stopped his way. Then Bherulal and Ramgopal went towards Khali

to make them understand. The complainant Kajodi Lal (PW-1) and

Ramcharan followed them till Shivji's chabutara anticipating a fight.

Further he has stated that as soon as deceased Bherulal and Ramgopal

(PW-2) reached 'Jhinjhinya sund wali badi', Madan Lal and

Satyanarayan, who had dhariya with them also reached there. When

Bheru Lal reproached them, they threatened him and then started to

attack him with dhariya. Then the complainant Kajodi Lal (PW-1) and

Ramcharan ran towards the badi and on hearing the screams of Bheru

lal and Ramgopal (PW-2), Prahlad (PW-6) and Jai Prakash also reached

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at the spot. Then Hansraj, DhannaLal, Kishan lal, Badri Lal, Danmal,

Babulal, Ramnarayan, Mathura Lal, Jankilal, Sheoji, DwarkaLal S/o

Ramswarup, DwarkaLal S/o Kanhaiya Lal and others came from the

badi and attacked Bherulal and Ramgopal with dhariya, kutiya and

lathis. He further stated that Badrilal, Mathuralal, Hansraj, Kishan,

Madanlal and Satyanarayan attacked Bheru with dhariya while Sheoji,

Ram Kalyan, Kanhaiyalal and Dhannalal attacked with lathi. Bherulal

fell and became unconscious. Danmal, Babulal and both Dwarkalal

attacked Ramgopal with gandasi while Ram Kalyan and Dhanna Lal

attacked him with lathis. Complainant Kajodi lal (PW-1) stepped in

between to save them when Hansraj, Babulal and Badri Lal hit him on

the back. Kasturi Bai, Parvati Bai and Birdhi Bai also stepped in

between and Dhannalal attacked them with lathi. Janki Lal pointed a

12-bore gun at Ramgopal (PW-2) and everyone left the khali along

with their weapons. Bherulal died on the spot and Ramgopal (PW-2)

was taken to the hospital.

3. On the basis of the said written report, the police registered

an FIR bearing No. 80/1980 (Ex.P-2) at 12:25 pm on 05.10.1980 for

offence under Sections 302, 307, 147, 148, 149 of the IPC against the

accused-appellants. The police after due investigation filed charge-

sheet against the accused-appellants. The case was committed to the

learned Trial Court. The learned Trial Court after committal of the case,

framed charges against the accused- appellants for offence under

Sections 302/149, 307/149, 323/149, 148 and 447 of IPC. The

accused-appellants denied the charges and sought trial. Upon which,

19 witnesses were examined and 34 documents were exhibited on

behalf of the prosecution. Explanation of the accused-appellants was

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recorded under Section 313 of Cr.P.C., wherein they have denied the

allegation levelled against them. In defence, 8 witnesses were

examined and 14 documents were exhibited. Learned Trial Court after

hearing the final arguments of both the parties convicted and

sentenced the accused appellants as stated herein above, aggrieved by

which, the present appeals have been filed.

4. It is contended by learned Senior Advocate appearing on

behalf of the accused-appellants that as many as fifteen persons faced

trial, out of which, seven were acquitted and eight were convicted by

the Trial Court. The arrest memos and injury reports of the accused

were not produced before the Court. On behalf of the accused,

photocopy of the injury reports were produced before the doctor, but

he did not depose, as documents were a photocopy. It is also

contended that none of the injuries sustained by the deceased is on

vital part and most of the injuries were caused by blunt weapon. It is

argued that arrest memos of the accused were purposely not exhibited

before the Court, as in the arrest memos itself, injuries sustained by

the accused were mentioned. It is contended that genesis of the crime

has been concealed by the prosecution. In fact, it was the complainant

side who had attacked the accused side and accused side also

sustained injuries, which fact was also not mentioned before the Court.

Gordhan Lal (PW-16) has admitted that accused- Satyanarayan had

also lodged a report on that date. Ghanshyam Lal (PW-17) has

admitted that when he started the investigation, Madan Lal was

already in custody. He had sustained injuries and he was undergoing

treatment.

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5. It is also contended that the complainant side had got a

land issued in their favour, to which objections were filed by the

accused side and the allotment was cancelled. Since the allotment was

cancelled, the complainant side was having enmity with the accused

side and they attacked the accused. It is also contended that the trial

Court has erred in convicting the accused-appellants for offence under

Section 447 of IPC as there was no evidence that the accused-

appellants entered the property belonging to the complainant.

Addl. Patwari (PW-14) has produced Khasra Girdwari (Ex.P-27), but in

his cross-examination, he has admitted that he has not given any

certificate with regard to Exhibit- 27 Khasra Girdwari being prepared

from the original record. Ramkalyan (PW-13) has also admitted that

when he reached the police station, accused- Satyanarayan, Madanlal,

Hansraj were sitting there. It is also contended that prosecution has

purposely not produced the arrest memos and has concealed material

evidence from the Court.

6. It is further contended that as far as injuries caused to

deceased- Bherulal are concerned, Dr. Veerochand Mehta (PW-12) has

deposed that none of the injuries were caused on his vital part and

none of his internal organs were affected by the injuries. He has also

stated that none of the injuries were sufficient in the ordinary course

of nature to cause death. He has further deposed that if the deceased

would have received immediate aid, he could be saved. It is also

contended that the incident in fact did not occur at the place pointed

out by the prosecution, rather, the incident actually took place at Khali

which is on the way of Haldana and Muldana, where the complainant

party attacked the accused side. It is also contended that the

investigation done was neither fair nor impartial as the initial

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investigation was carried out by SHO, Police Station Chhawra, whereas

the FIR was lodged at Police Station Kawai. The investigation was done

by incompetent investigating officer. It is also contended that whatever

injuries were caused to the complainant side, have been caused in the

exercise of right of private defence.

7. Learned Addl. Government Advocate has opposed the

appeals. It is contended that the deceased has sustained several

injuries and the accused side armed with weapons had attacked the

complainant side, causing injuries to many persons. It is contended

that statement of injured witnesses cannot be disbelieved, merely

because the arrest memos and injury reports of the accused side are

not produced.

8. We have considered the contentions and have perused the

record.

9. The alleged incident took place on 04.10.1980. Prosecution

has not produced the arrest memos of accused and it is a specific case

of the accused side that they had sustained injuries and they went to

the police station to lodge the report. It is an admitted fact that the

accused had also sustained injuries, as has been admitted by the

witnesses of the prosecution. Gordhan Lal (PW-16) who was in-charge

of the Police Station, Kawai has admitted that accused- Satyanarayan

had also lodged a report. As per the prosecution, it was the accused

side who attacked, whereas as per the accused side, it was the

complainant side who first attacked. Be that as it may, both the sides

have sustained injuries. As per Dr. Veerochand Mehta (PW-12), none of

the injuries caused to the deceased were on vital part. The case at

most can be considered to be an incident which took place on the spur

of the moment and both sides inflicted injuries to each other. It is also

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pertinent to note that the weapon of offence were not produced before

the Court and the FSL report (Exhibit P-5) also shows only one

dhariya, whereas as many as four dhariyas are said to have been

recovered.

10. The contention of counsel for the appellants that present is

a case of over implication in support of which it was argued that

charge-sheet was filed against as many as 15 persons, out of which,

seven persons have been acquitted by the trial Court. State or the

complainant have not filed any appeal against their acquittal and since

seven persons have been acquitted, it is a clear case of over

implication by the complainant. The fact that seven persons have been

acquitted and State or complainant have not filed any appeal against

the acquittal is not disputed by the counsel appearing on behalf of

State and complainant. Since charge-sheet was filed against 15

persons and out of which, seven persons have been acquitted, this

Court has to accept the argument advanced by learned Senior counsel

that there was over implication by the complainant side.

11. The other contention of learned Senior counsel that the

complainant side was allotted a land and since accused side objected

and the allotment was cancelled, complainant side had an enmity with

the accused side. In this regard, from perusal of Ex. D-11, it is evident

that seven bighas of agricultural land was allotted to Bherulal.

Aggrieved by the said allotment, accused side- Danmal, Ramnarayan,

Hansraj, Dhanna Lal and Kanha had filed the appeal which was allowed

and the allotment was cancelled. Bherulal preferred an appeal before

the Revenue Appellate Authority, which was dismissed vide order dated

24.09.1974. The complainant- Kajodi Lal (PW-1) has alleged having

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enmity with the accused side because their allotment was cancelled at

their behest.

12. The other contention of learned Senior Advocate is that the

offence under Section 447 IPC is not made out as none of the

witnesses has established that the place where the incident took place

belonged to the complainant. Addl. Patwari- Gyariram (PW-14) has

deposed with regard to the place of occurrence. He has produced

naksha trace as Exhibit P-26. In his cross-examination, he has

admitted that he has not produced the original site plan and he has

not filed any certificate that naksha trace which he has filed is the true

copy of the original.

13. On perusal of the evidence, it is revealed that three of

injured witnesses have been examined. PW-1 (Kajodi Lal) has stated

that Prahlad was stopped by Madan & Satyanarayan, on which,

Bherulal & Ramgopal went to make them understand. This witness has

stated that he alongwith Ramcharan followed Bherulal & Ramgopal.

This witness has also stated that earlier also on 03.10.1980, the

accused party had come to his house armed with lathis and gandasis

to fight with them and he had lodged a report at Police Station Kawai.

However, no such report has been exhibited before the Court to

establish that the accused had earlier also, attacked the injured

complainant side. This witness has admitted in his cross-examination

that jhinjhinia wali badi is of seven bighas. It is pertinent to note that

allotment of seven bighas of land was made in favour of Bherulal,

which was cancelled and thus, this land cannot be said to be belonging

to the complainant side. This witness has admitted that in police

statement (Exhibit D-1) portion A to B, wherein, it is mentioned that

Prahlad returned from the way of Halgana is wrong. In FIR, portion E

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to F, it is mentioned that Prahlad returned from khali on the way of

Halgana and Mundla. Thus, this witness has tried to change the place

of occurrence. Initially in the FIR as well as in the statement before the

police, he had given a different version and before the Court, he has

changed his version. Thus, the defence of the appellant that in fact the

complainant side attacked them and the place of occurrence was

different cannot be ruled out. The burden of proof that the occurrence

took place at the place which belonged to the complainant was on the

prosecution. Since there is no evidence to establish that the place of

occurrence belonged to the complainant, there was no justification for

convicting the appellants for offence under Section 447 IPC. A

suggestion was given to this witness that on the date of incident,

Bherulal, Ramgopal, Ramcharan, Prahlad and this witness were hiding

behind the Arkna and attacked Satyanarayan and when Madan and

Hansraj came to save Satyanarayan, they were also beaten.

14. As per Ramgopal (PW-2), Prahlad returned alleging that he

was beaten by Madan and Satyanarayan and they stopped his way, on

which, he and Bherulal went to resolve the dispute. A prayer was made

by the learned Public Prosecutor to declare this witness hostile, as he

did not name some of the accused. However, the prayer was declined

by the learned trial Court. This witness has denied that Dwarikalal

caused injury to him and what is mentioned in Exhibit P-3 is wrong.

Birdhi Bai (PW-3) has stated that at around 04:00 pm, she heard

screams and she alongwith Kasturi (PW-7) and Parvati Bai (PW-5)

reached the place of occurrence and found the accused side, causing

injuries to Bherulal.

15. The fact that the accused have sustained injuries could have

been explained by their arrest memos, wherein condition of the

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accused is noted. Non-exhibiting of the arrest memos caused prejudice

to the accused-appellants. Many defence witnesses were produced on

behalf of the defence to establish that many of the accused persons

who are charge-sheeted for not being present at the place of

occurrence, evidence in this regard was exhibited by the Court.

Consequently, out of 15 accused persons, 7 accused persons have

been acquitted.

16. Gordhan Lal (PW-16) has admitted that Satyanarayan had

given a report, thereafter, he was arrested. Ghanshyam Lal- SHO

(PW-17) has also admitted that before he started the investigation,

Madanlal was already arrested and he had sustained injuries and was

undergoing treatment. The investigating agency has not given any

details about the report lodged by Satyaranayan and as to what was

the result of the investigation done in that report. Prosecution has thus

concealed very important aspect of the case. Neither the prosecution

has explained the injuries caused to the accused side nor they have

given any justification for not acting in the report lodged by

Satyanarayan. Prosecution has not even accepted that arrest memos

which would have thrown light on the injuries sustained by the

accused-appellants have not been exhibited.

17. Conducting a fair investigation is a primary responsibility of

an investigating officer. He must do so in order to come to an objective

conclusion regarding the incident, as held by the Apex Court in Kumar

v State (2018) 7 SCC 536, we would only restate the

aforementioned premise of an impartial investigation:

"27. The action of investigating authority in pursuing the case in the manner which they have done must be rebuked. The High Court on this aspect, correctly notices that the police authorities have botched up the arrest for reasons best known to them. Although we

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are aware of the ratio laid down in Parbhu v. King Emperor [Parbhu v. King Emperor, AIR 1944 PC 73], wherein the Court had ruled that irregularity and illegality of arrest would not affect the culpability of the offence if the same is proved by cogent evidence, yet in this case at hand, such irregularity should be shown deference as the investigating authorities are responsible for suppression of facts.

28. The criminal justice must be above reproach. It is irrelevant whether the falsity lie in the statement of witnesses or the guilt of the accused. The investigative authority has a responsibility to investigate in a fair manner and elicit truth. At the cost of repetition, I must remind the concerned authorities concerned to take up the investigation in a neutral manner, without having regard to the ultimate result. In this case at hand, we cannot close our eyes to what has happened; regardless of guilt or the asserted persuasiveness of the evidence, the aspect wherein the police has actively connived to suppress the facts, cannot be ignored or overlooked."

18. When there is suppression of any fact, an impartial

investigation becomes questionable. Suppressing the motivation,

injuries and other existing factors that will lead to modification or

alternation of the allegations would amount to a superficial

investigation, which would then turn into a misleading narrative

making it difficult to be relied upon by the Court. Since in the present

case, the complaint lodged by the accused has not been placed before

the Court, the story as narrated by him that it was the complainant

side who had attacked cannot be disbelieved as both sides have

sustained injuries.

19. Defence as been put up by the accused side is that seven

bighas of land was allotted to Bherulal and the same was got cancelled

by the accused side, on which Bherulal and the complainant side were

having enmity with the accused side and they in fact attacked the

accused side and whatever injuries are sustained by the complainant

side, were caused in exercise of the right of private defence. None of

the injuries were caused on the vital part, hence, it cannot be said that

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the accused side had exceeded the right of private defence. Since

none of the injuries were caused to the deceased on the vital part of

the body, the accused side have also sustained injuries, which fact has

not been explained by the prosecution witnesses, hence, we are of the

considered view that the Court below has clearly erred in convicting

the accused-appellants.

20. Section 96 of IPC provides that nothing is an offence, which

is done in the exercise of the right of private defence. Section 97 of

IPC gives right of private defence of the body and of property, subject

to restrictions contained in Section 99. In case of exercise of private

defence, the initial onus is on the accused that the act was done in

private deference and the onus is only to the extent of preponderance

of probabilities. The Apex Court in the case of Dev Raj vs. State of

H.P. AIR 1994 SC 523 has held that where both accused and the

complainant side had received injuries in the same incident and then

the plea of private defence is taken, the same cannot be disregarded

especially in the absence of any explanation by the prosecution of the

injuries caused to the accused side.

21. In Arvind Kumar @ Nemichand & Ors. vs State of

Rajasthan(2021) 11 SCR 237, the facts of which are akin to the

present case, the Apex Court acquitted the accused-appellants giving

benefit of doubt and gave imprimatur to the plea of private defence as

possible and plausible with due discharge of onus. In the case at

hand, none of the injuries were caused on the vital part of the body,

hence, it cannot be said that more harm was inflicted than was

necessary for the purpose of defence. Thus, it cannot be ruled out that

the complainant side caused injuries to the accused side and in

exercise of their right of private defence, they inflicted blows to the

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complainant side. The accused side did not exceed or inflicted more

harm than was necessary for the purpose of defence.

22. Appeals filed by the appellants deserve to be and are

accordingly, allowed. Judgment of conviction and order of sentence

dated 16.01.1985 passed by Addl. District & Sessions Judge, Baran is

quashed and set aside. The appellants are acquitted of all the charges

levelled against them.

23. Appellants are directed to furnish personal bond in the sum

of Rs.50,000/- and a surety bond in the like amount in accordance

with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two

weeks from the date of release to the effect that in the event of filing

of Special Leave Petition against this judgment or on grant of leave,

the appellants on receipt of notice thereof, shall appear before the

Hon'ble Apex Court. The bail bonds will be effective for a period of six

months.

24. Record of the trial Court be returned back forthwith

alongwith certified copy of this order.

                                   (BHUWAN GOYAL),J                                                (PANKAJ BHANDARI),J

                                   CHANDAN /









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