Rajasthan High Court - Jodhpur
Mohna Ram And Ors vs State on 29 May, 2024
Bench: Pushpendra Singh Bhati, Rajendra Prakash Soni
[2024:RJ-JD:19434-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 473/1989
1. Mohana Ram s/o Bhinvaram
2. Chandmal s/o Bodu Ram (appeal abated)
3. Birdichand s/o Mansukh
4. Kanaram s/o Mohanji (appeal abated)
5. Mahendrakumar s/o Maluram
6. Shivlal s/o Devilal
7. Kailash s/o Bhinvaram
8. Ramuram s/o Mansukhram
All residents of Kuchaman City, District Nagaur.
----Appellant
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Ms. Taniya Tuli, Amicus Curiae
For Respondent(s) : Mr. B.R. Bishnoi, PP.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Judgment
Reserved on 02/05/2024
Pronounced on 29/05/2024
Per Dr. Pushpendra Singh Bhati, J:
1. This criminal appeal under Section 374(2) Cr.P.C. has been
preferred claiming the following reliefs:
"It is therefore, respectfully prayed that this appeal may
kindly be accepted and accused appellants may be acquitted
of all the charges levelled against them."
2. The matter pertains to an incident which occurred in the year
1987 and the present appeal has been pending since the year
1989.
[2024:RJ-JD:19434-DB] (2 of 12) [CRLA-473/1989]
3. The accused-appellants laid a challenge to the judgment of
conviction and order of sentence dated 29.11.1989 passed by the
learned Sessions Judge, Merta, in Sessions Case 2/88 (State of
Rajasthan Vs. Mansukh & Ors.), whereby the accused-appellants
have been convicted for the offence punishable under Sections
302/149, 325/149, 323 & 147 IPC. For the offence punishable
under Section 302/149 IPC, the accused appellants have been
sentenced for life imprisonment and fine with default clause;
whereas, for the offence punishable under Sections 325/149, 323
& 147, the accused-appellants were ordered to be released, while
extending them the benefit of Section 4 of the Probation of
Offenders Act, 1958.
3.1. The accused-appellants Chandmal, Mansukhram and Babulal,
had expired, and therefore, the instant appeal qua them stood
dismissed as abated.
3.2. Qua accused-appellant Kanaram, since his whereabouts were
not known for last more than seven years, and thus, a
presumption of his death was drawn under Section 108 of the
Indian Evidence Act, 1872 and thus, while holding that he was no
longer alive, the instant appeal qua him as well, stood dismissed
as abated.
4. As the pleaded facts and the record would reveal, on
02.10.1987, at about 7:30 p.m., the complainant-Kishan Lal
(PW.18) alongwith his uncle-Madan Lal, Mansab Khan and one
Yasin were going towards the market to have tea and when
reached near 'Teliyon Ki Masjid', from the side of the garden of
Shahji Dharmshala Baag, near Novelty Montessori School, all the
[2024:RJ-JD:19434-DB] (3 of 12) [CRLA-473/1989]
ten accused persons, armed with lathis and hockeys, came with
common motive, and started beating the complainant's uncle-
Madan Lal, whereupon Lalaram & Rajuram, who were nearby and
coming after undertaking the work of labour in Kumharo Ka Baas,
came to the rescue of Madanlal; thereupon, the accused persons
also started beating the said two persons as well. The said
treatment was meted out by the accused persons to certain other
persons, namely, Ratan Lal, Ramlal and Bhanwarlal and Lachchi,
who came to the rescue to the complainant party.
4.1. As a result of the same, Madanlal and Ratanlal sustained
fracture in hands, Rajuram sustained head injuries and the blood-
oozing was there on the said vital part of his body, apart from
other grievous injuries sustained by him, resultantly, Rajuram,
being in unconscious state, fell on the spot. Thereafter, certain
persons, namely, Banshilal, Ghasiram, Kunaram & others, came to
the spot.
4.2. The said incident was reported by the complainant-Kishanlal
on the said date i.e. 02.10.1987, vide written report (Ex.P-9),
before the Police Station, Kuchaman City at about 8:30 p.m., on
the basis whereof an FIR bearing No.113/87 was registered
against the accused persons for the offences under Section 147,
148, 149, 307 & 323 IPC, and the investigation accordingly
commenced thereafter. However, since on the same date i.e.
02.10.1987 itself, in the night, Raju, succumbed to the injuries
and died, therefore, the offence under Section 302 IPC was also
added against the accused persons. After investigation, the police
filed charge-sheet against the accused persons for the offences
[2024:RJ-JD:19434-DB] (4 of 12) [CRLA-473/1989]
under Sections 147, 148, 149, 302, 325 & 323 IPC before the
competent court. Thereupon, the said competent court, committed
the matter, owing to the case registered and investigated under
the aforesaid provisions of law, committed the matter to the
learned Trial Court.
5. The learned Trial Court framed the charge against accused-
appellants for the offence under Sections 147, 325/149, 323/149
& 302 IPC and charged accused-Mansukhram and Kanaram (since
expired) under Section 302 IPC and as against the remaining
accused-appellants, the charge was framed for the offence under
Section 302/149 IPC. the said charges were read over to the
accused-appellants; the accused-appellants denied the same, and
sought due trial, and the trial accordingly commenced thereafter
before the learned Trial Court.
6. During the course of trial, the evidence of 22 prosecution
witnesses were recorded and 65 documents were exhibited on
behalf of the prosecution, whereas, the accused-appellants
brought forth 2 documents and 1 witness in support of defence.
Subsequently, the accused-appellants were examined under
Section 313 Cr.P.C. where they denied all the charges and pleaded
their innocence, and the trial accordingly commenced.
7. Thereafter, upon hearing the contentions of both the parties
as well as considering the material and evidence placed on record,
the learned Trial Court, convicted and sentenced the accused-
appellants, as above, vide the impugned judgment of conviction
and order of sentence dated 29.11.1989, against which the
[2024:RJ-JD:19434-DB] (5 of 12) [CRLA-473/1989]
present appeal has been preferred on behalf of the accused-
appellants.
8. Learned counsel for the accused-appellants submitted that
out of 22 witnesses produced by the prosecution, 10 witnesses i.e.
P.W.1 to P.W.10 had turned hostile during the trial, including
Madanlal (PW.3), who was not only an injured eyewitness, but also
the person with whom the accused persons had come to fight;
during the cross-examination P.W.3 had turned hostile stating that
at the time of incident, the sky had turned dark and he lost
consciousness in the middle of the fight and did not see who hurt
him and only found the names of the accused on the next day.
8.1. It was further submitted that there was no intention on the
part of the accused persons to injure the deceased as is reflected
from the statement of P.W.3; instead the deceased himself had
intervened in the ongoing fight during the course of which, in an
unfortunate event, the said injuries were sustained by him.
8.2. It was also submitted that there was a delay of two hours in
reporting the said incident to the police, when in fact the police
station was only half a kilometre away from the place of incident.
8.3. It was further submitted that the accused persons
particularly, Birdichand, Kanaram and Ramuram had injuries
inflicted on their bodies as well, and the same remained
unexplained by the prosecution witnesses; furthermore, both the
sides were involved in a personal dispute with regard to a land
and the present matter was one of private defence.
8.4. It was also submitted that though lathis with blood stains
were recovered, but PW.21 Bundu Ali (Motbir) stated in his
[2024:RJ-JD:19434-DB] (6 of 12) [CRLA-473/1989]
testimony that the police officials had informed him that two lathis
that had blood stains were tied together in a cloth, and thus, he
had put his signature on Ex.P-7 & Ex.P-8 - Fard Baramadgi Lathi;
in furtherance, the blood group of blood stains have not been
determined in the FSL Report i.e. Ex.P-65, thereby creating a
doubt in the prosecution story.
8.5. It was further submitted that insofar as the joint liability
under Section 149 IPC is concerned, there is no ocular witness to
corroborate the prosecution version, from the very inception. It
was also submitted despite Ex.P-11 revealing presence of
numerous shops, none of the shopkeepers has been examined and
the testimony of the complainant PW.18 Kishan Lal is not wholly
reliable, given the fact that the prudence does not permit a person
to be a mere spectator when his immediate relatives are being
victimized with such alleged grave injuries by ten individuals.
8.6. In support of such submissions, learned counsel relied upon
the following judgments:
a) Bhajan Singh Vs. State of Punjab (1978) 4 SCC 77; and
b) Sarman & Ors. Vs. State of Madhya Pradesh (Criminal
Appeal No.302 of 1981 decided by the Hon'ble Apex Court on
07.08.1992).
9. On the other hand, learned Public Prosecutor appearing on
behalf of the State, while opposing the aforesaid submissions
made on behalf of the accused-appellants, submitted that even
though 10 witnesses so produced by the prosecution had turned
hostile during trial, however the same does not necessarily imply
[2024:RJ-JD:19434-DB] (7 of 12) [CRLA-473/1989]
that the testimony given by rest of the witnesses should also be
discarded.
9.1. It was further submitted that there was no delay in lodging
of the FIR as the incident in question took place around 7:30 p.m.
in the evening and a written report in connection therewith was
given to the concerned police station by 8:30 in the evening, as
has been rightly observed by the learned Trial Court.
9.2. It was also submitted that P.W.12, 13, 14, 16 clearly stated
in their respective statements seeing the deceased being hit by
Mansukhram and Kanaram (since expired) on the head;
furthermore, as per the medical report prepared by P.W.15-Dr.
Narendra Kumar, there were three injuries that were caused to the
deceased on his head, and even just a single one was sufficient to
cause death.
9.3. It was further submitted that though blood stained lathis
were recovered from the accused persons.
9.4. It was also submitted that a bare perusal of the record would
reveal that the accused-appellants had arrived at the place of
incident with a clear intention and premeditation to kill PW.3
Madan Lal, but during the scuffle, Raju Ram sustained injuries on
his head, resulting into his demise; the said intention and pre-
planning is further fortified from the fact that the complainant
party and the accused party were having personal enmity with
each other, owing to the long standing dispute between them in
relation to a land.
9.5. In support of such submissions, reliance has been placed on
the following judgments:
[2024:RJ-JD:19434-DB] (8 of 12) [CRLA-473/1989]
(a) Appabhai Vs. State of Gujarat, AIR 1988 SC 696;
(b) Shivraj Bapoore Jadhav Vs. State of Karnataka, 2003 Cr.L.R.
(SC) 609;
(c) Ganeshi Lal Vs. State of Maharashtra, 1992 Cr.L.R. (SC) 443;
(d) State of Himachal Pradesh Vs. Jeetsingh, 1999 Cr.L.R. (SC)
193;
(e) State of Haryana Vs. Teksingh & Ors., 1999 Cr.L.R. (SC) 326;
and
(f) Gangadhar Vs. State of Orissa, (2002) 8 SCC 381.
10. Heard learned counsel for the parties as well as perused the
record of the case, alongwith the judgments cited at the Bar.
11. This Court observes that while Kishan Lal, his uncle Madan
Lal and two other persons were out to drink tea in the evening, 10
persons came with lathis and started beating Madan Lal,
whereafter Raju Ram (deceased) alongwith Lala Ram also came
there and tried to rescue Madan lal. However, the accused started
beating Lala Ram and Raju Ram as well; during the ongoing
tussel, Ratan Lal, Ramlal and Bhanwarlal and Lachchi also
reached the place of incident and tried to rescue them from the
accused persons, but they were also got injured during the said
fight. During the incident, Raju Ram received injuries on the head
resulting in his demise on the same day.
12. This Court further observes that 10 witnesses i.e P.W.1 to
P.W.10 produced by the prosecution had turned hostile during the
trial, including P.W.1 Yasin and P.W.2 Mansakh Kha, who as per the
written report given by P.W.18 Kishan Lal (nephew of P.W.3) were
allegedly present during the time of incident; however, both P.W.1
[2024:RJ-JD:19434-DB] (9 of 12) [CRLA-473/1989]
and P.W.2 in their respective statements deposed that neither of
them saw the incident itself taking place.
13. This Court also observes that P.W.3 Madan Lal (injured eye
witness) deposed during his statement that at the time of
incident, it was dark out and he could not see the accused
persons, and that, during the fight, he had lost consciousness in
the middle of it and it was only on the next day that he found the
names of the accused persons.
14. This Court further observes that prosecution witnesses
P.W.12, P.W.13, P.W.14 & P.W.16, all four of them, who were also
present at the time of incident and got injured during the said
fight, had in their statements deposed seeing Mansukhram and
Kanaram (since expired) hitting Raju Ram (deceased) on his head.
14.1. This Court also observes that in his statement P.W. 12 Ratan
Lal deposed that he saw accused-Mansukram and accused-
Kanaram inflicting blow on the deceased's head and that other
accused persons were also involved in beating the deceased;
whereas the other prosecution witnesses P.W.13, P.W.14 & P.W.16
had clearly deposed in their statements that they had seen
accused-Mansukhram and accused-Kanaram (since expired)
hitting the deceased on his head.
14.2. This Court further observes that PW.12 deposed in his
statement that all the present accused-appellants had caused
injuries to the deceased, but at the same time P.W.13, P.W.14 &
P.W.16, who were also the eye witnesses, deposed that only
accused-Kanaram and accused-Mansukhram, (since expired) both
since deceased, caused injuries to the deceased, and thus, it is
[2024:RJ-JD:19434-DB] (10 of 12) [CRLA-473/1989]
crystal clear that there are material contradictions in the
depositions made by the eye witnesses, in regard to causing
injuries to the deceased.
15. This Court further observes that as per Ex.P/33-Postmortem
Report, four injuries were found on the head of the deceased and
there were injuries on his hand and feet as well; as per the
statements given by P.W.15 Dr. Narendra Kumar as well as the
opinion given by him in Ex.P/33, the deceased died due to brain
trauma causing respiratory arrest, owing to the fatal injuries
sustained on his head and such injuries were sufficient to cause
death of the deceased.
15.1. This Court also observes that the above-mentioned
prosecution witnesses that were present at the time of the
incident though stated seeing accused-Mansukhram and accused-
Kanaram (since expired) hitting the deceased on the head,
however, there has been no mentioning of other co-accused of
being involved in hitting the deceased on his head, which
ultimately led to the demise of Raju Ram.
16. This Court further observes that as per the Ex.P/64-FSL
Report, the blood group of the stains taken from the lathis
recovered from the accused could not be determined, owing to the
fact that the blood had disintegrated.
17. This Court also observes that the injury caused to the
deceased by accused-Mansukhram (since deceased) and accused-
Kanaram (since deceased), which fact was supported by the
statements of eye witnesses i.e. PW.12, PW.13, PW.14 & PW.16;
though these prosecution witnesses have deposed that they
[2024:RJ-JD:19434-DB] (11 of 12) [CRLA-473/1989]
themselves were beaten by the present accused-appellants,
however, they have not deposed that there was any involvement
of the accused-appellants in causing murder of the deceased.
17.1. This Court further observes that it is true that the accused-
appellants were involved in crime in question, but they are not
accused of causing any injury to the deceased or aiding in causing
injury to the deceased, which resulted in his demise.
17.2. It has also come on record that the main accused Kanaram
and Mansukh Ram (since expired) had already expired and as
mentioned above, the instant appeal qua them stood dismissed as
abated.
18. This Court also observes that the learned Trial Court in the
impugned judgment had failed to consider that the surviving
accused-appellants had caused injuries to the other persons, and
not to the deceased, and thus, the surviving appellants could not
have been prosecuted and convicted for the offence punishable
under Section 302 IPC.
18.1. Thus, it is evident from the present facts and circumstances
that the elements of Section 300 IPC are not made out qua the
present accused-appellants, and as such, no intention/bodily
injury/knowledge can be attributed to the present surviving
accused-appellants.
18.2. This Court further observes that the present appeal is
pending for last about 35 years and age of the present surviving
appellants is more than 50 years.
18.3. In furtherance, the learned Trial Court vide the impugned
judgment had given the benefit of Section 4 of Probation of
[2024:RJ-JD:19434-DB] (12 of 12) [CRLA-473/1989]
Offenders Act, 1958 to the present accused-appellants, as regards
their conviction for the offences punishable under Sections 147,
323 and 325/149 IPC and that all the present surviving accused-
appellants have approximately undergone the custody for a period
of 08 months, and also there nothing on record which could show
that they have committed any other crime after suspension of the
sentence awarded to them by the learned Trial Court.
18.4. Thus, in light of the aforesaid observations and looking into
the factual matrix of the present case, this Court, while
maintaining the conviction for the offences under Section 147,
323, 325 read with 149 IPC and also maintaining the conditions of
imposed by the learned Trial Court vide the impugned judgment
while extending the benefit of Section 4 of the Probation of
Offenders Act, 1958 qua the said offences, the conviction of the
surviving accused-appellants under Section 302/149 IPC is
quashed and set aside. The bail bonds of the present surviving
appellants qua the offence under Section 302/149 IPC stand
discharged.
19. The instant appeal stands partly allowed, in the above
terms. The record of learned Trial Court be sent back forthwith.
20. This Court is thankful to Ms. Taniya Tuli, who has rendered
her assistance as Amicus Curiae, on behalf of the accused-
appellants, in the present adjudication.
(RAJENDRA PRAKASH SONI),J (DR.PUSHPENDRA SINGH BHATI),J
SKant/-
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