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D.B. Crl. Appeal No. 100/84
(Ved Prakash & Ors. Vs. State)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
Ved Prakash & Ors vs. State of Rajasthan
D.B. CRIMINAL APPEAL NO. 100/1984
Against the judgment & order dt. 16.02.1984,
passed by Additional District and Sessions
Judge No.2, Hanumangarh in Sessions Case
No. 65/1983.
Date of Order : 17th April, 2009
PRESENT
HON'BLE MR. JUSTICE N.P. GUPTA
HON'BLE MR. JUSTICE C.M. TOTLA
Mr. S.G. Ojha, for the appellants.
Mr. A.R. Nikub, Public Prosecutor.
BY THE COURT: (PER HON'BLE GUPTA, J.)
This appeal has been filed by five accused persons against
the judgment of learned Additional Sessions Judge No.2, Hanumangarh,
dated 16.02.1984 convicting them as under :-
1. Accused Ved Prakash :-
S.No. Conviction under Section(s) Sentence
1 302 IPC Life imprisonment alongwith fine
of Rs. 500/-, in default to undergo
six months imprisonment
2 148 IPC One year rigorous imprisonment
alongwith Rs.100/- fine, in default
of fine, one month R.I.
2 D.B. Crl. Appeal No. 100/84 (Ved Prakash & Ors. Vs. State) S.No. Conviction under Section(s) Sentence 3 325/149 IPC Three years rigorous imprisonment alongwith Rs.500/- fine, in default of fine, three months R.I. 4 324/149 IPC Two year rigorous imprisonment alongwith Rs.200/- fine, in default of fine, two months R.I. 5 323/149 IPC One months R.I. 2. Accused Najar Singh :- S.No. Conviction under Section(s) Sentence 1 148 IPC One year R.I. alongwith fine of Rs. 100/-, in default to undergo one month R.I.. 2 324 IPC Two years R.I. alongwith fine of Rs. 200/-, in default to undergo two months R.I.. 3 325/149 IPC Three years R.I. alongwith fine of Rs. 500/-, in default to undergo three months R.I.. 4 323/149 IPC One month R.I. 3. Accused Gokul Singh :- S.No. Conviction under Section(s) Sentence 1 148 IPC One year R.I. alongwith fine of Rs. 100/-, in default to undergo one month R.I.. 2 324/149 IPC Two years R.I. alongwith fine of Rs. 200/-, in default to undergo two months R.I.. 3 325 IPC Three years R.I. alongwith fine of Rs. 500/-, in default to undergo three months R.I.. 4 323/149 IPC One month R.I. 3 D.B. Crl. Appeal No. 100/84 (Ved Prakash & Ors. Vs. State) 4. Accused Makhan Singh :- S.No. Conviction under Section(s) Sentence 1 148 IPC One year R.I. alongwith fine of Rs. 100/-, in default to undergo one month R.I.. 2 325/149 IPC Three years R.I. alongwith fine of Rs. 500/-, in default to undergo three months R.I.. 3 324/149 IPC Two years R.I. alongwith fine of Rs. 200/-, in default to undergo two months R.I.. 4 323 IPC One month R.I. 5. Accused Sada lal :- S.No. Conviction under Section(s) Sentence 1 148 IPC One year R.I. alongwith fine of Rs. 100/- 2 325/149 IPC Three years R.I. alongwith fine of Rs. 500/-, in default to undergo three months R.I.. 3 324/149 IPC Two years R.I. alongwith fine of Rs. 200/-, in default to undergo two months R.I.. 4 323/149 IPC One month R.I.
During pendency of the appeal, appellants No. 3 and 5 Sada
lal and Najar Singh respectively, expired and their appeals have also been
ordered to have abetted vide order dated 27.10.1999. Thus, the appeal
survives only on behalf of three accused persons, Ved Prakash, Makhan
Singh and Gokul Singh.
Brief facts of the case are, that on 18.06.82, at about 1:30
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D.B. Crl. Appeal No. 100/84
(Ved Prakash & Ors. Vs. State)
P.M., one Karnail Singh lodged a report at Police Station Sangaria, District
Sriganganagar to the effect, that Pratap Singh has a dispute of land with
the complainant party for last 4-5 years. In this background, at about 9-
9:30 A.M., the informant alongwith Jarnail Singh, Balbir Singh and Bahiya
were going to their field, in that process, when they crossed the canal,
and went to the field of Pratap Singh, they found Makhan Singh, Gokul
Singh armed with Sela, Sada lal armed with pistol and sword, Najar Singh
armed with Gandasa and Ved Prakash armed with Kassi. Makhan Singh
called Pratap Singh, and when Pratap Singh, Balbir Singh and Bahiya went
towards him, Sada lal fired two shots, and Makhan Singh etc, with an
intention to kill Pratap Singh, they started giving beating. The informant
and Jarnail singh kept aback. Pratap Singh and Balbir Singh received
injuries on the head, while Bahiya received injuries on arm, and they fell
down. When the informant and Jarnail Singh challenged the accused, the
accused ran away. It was alleged that the incident was caused on
account of dispute of land.
On this report, a case under Sections 307, 147, 148, 149,
324, 323 and 336 IPC was registered. During investigation, Pratap Singh
died, and therefore, offence under Section 302 IPC was also added. After
necessary investigation, charge sheet was filed.
The case was then committed to the learned trial court.
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D.B. Crl. Appeal No. 100/84
(Ved Prakash & Ors. Vs. State)
Learned trial court charged all the three accused persons for the offences
under Sections 148, 302 in the alternative 302/34 IPC, 307 IPC in the
alternative 307/34 IPC, 324, 325 in the alternative 325/34 IPC, 323 in the
alternative 323/34 IPC.
During trial, prosecution examined ten witnesses and
tendered in evidence some more than 45 documents. Accused did not
lead any evidence in defence. After so concluding the trial, the learned
trial court convicted and sentenced the accused persons as above.
The case, in the present case rests on the evidence of eye-
witnesses, being PW/1 Bahiya, PW/2 Balbir Singh, PW/4 Karnail Singh and
PW/8 Jarnail singh. In that view of the matter, instead of encumbering
the record, we stand better advised to concentrate on the deposition of
eye-witnesses, out of them PW/1 and PW/2 are injured eye-witnesses
also.
PW/1 Bahiya has stated, that there was dispute between
Pratap Singh and Makhan Singh, about the land. On the fateful day, at
about 9-9:30 A.M. in the morning she alongwith Pratap Singh, Balbir
Singh, Karnail Singh and Jarnail Singh were going on the field. After they
crossed the canal, Makhan Singh called Pratap Singh. She had identified
Makhan Singh correctly in the Court, and stated that alongwith Makhan
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D.B. Crl. Appeal No. 100/84
(Ved Prakash & Ors. Vs. State)
Singh, Ved Prakash, Gokul Singh, Najar Singh and Sada lal were also
there. She alongwith Pratap Singh and Balbir Singh went to Makhan
Singh, who was armed with Sela while Ved Prakash was armed with Kassi.
Najar Singh was armed with Gandasi. Gokul Singh was armed with Sela
and Sada lal was armed with sword and pistol. On the asking of Makhan
Singh, Ved Prakash inflicted a kassi blow on the left side of the head of
Pratap Singh. Other accused persons also started giving beating to Pratap
Singh. When she and Balbir Singh went to intervene, they were also
given beating. She has then stated that Najar Singh inflicted Gandasi
blow on Pratap Singh and then they ran away. She and Balbir Singh were
given beating by Najar Singh, Ved Prakash and Makhan Singh with various
weapons. She has identified all the accused persons present in Court.
Then Pratap Singh and Balbir Singh were brought under the Khejadi tree,
where they were given water, and Karnail Singh went to Police station.
The injuries were medically examined. She was cross-examined at length.
She stated that from the Khejadi three, they were taken by police. Then
she was cross-examined about the presence of blood on the clothes of
other witnesses and about present of blood below khejadi tree. She
admitted that she did not give out to Investigating officer that Jarnail
Singh and Karnail Singh told accused persons that they have already
given enough beating. The details of number of injuries were given.
Likewise, she was cross-examined on the aspect of individual injuries
having been inflicted on individual victims. She has maintained that Ved
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D.B. Crl. Appeal No. 100/84
(Ved Prakash & Ors. Vs. State)
Prakash had inflicted Kassi blow on her left rib, which is not mentioned in
Ex.D/1 with which she was confronted. Likewise, she was cross-examined
regarding piercing injury of Sela, and she maintained that she was
inflicted injuries with Gandasi numbering 5-6. Then she was cross-
examined about title of the land, and about other litigations said to be
pending. She has admitted the fact that the case filed by them against
the accused for offence under Section 447 IPC has been dismissed, but
she denied about any prosecution having been lodged against her for
offence under Section 182 IPC. She has denied the suggestion, that on
04.06.77, her father Pala Singh had agreed to sell the land at the rate of
Rs. 3000/- per bigha. She has maintained, that she was interrogated by
the police that very day. They remained in the hospital for 4 – 5 hours.
She has deposed ignorance about any injuries being thereon the person
of accused persons Makhan Singh and Ved Prakash. She has maintained
that any one of the witnesses were not armed with any weapon. She has
deposed ignorance about one Myan, one sword, one sela and one
gandasa having been found on the spot. She has also deposed ignorance
about Makhan Singh having lodged any report against them on that very
day.
Then we come to the evidence of PW/2 Balbir Singh who is
another injured. He has deposed, that Pratap Singh was his brother, and
on the fateful day, Pratap Singh, Bahiya, Karnail Singh, Jarnail Singh and
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D.B. Crl. Appeal No. 100/84
(Ved Prakash & Ors. Vs. State)
himself had crossed the canal for going to the field, where Makhan Singh
was found at canal, who called Pratap Singh. At that time, other accused
Sada lal, Gokul Singh, Najar Singh and Ved Prakash were also there, who
are present in the Court. Makhan Singh and Gokul Singh were armed
with Sela, Ved Prakash was having Kassi, Nazar Singh was having
Gandasi, and Sada lal was having one sword and pistol. In response to
call of Makhan Singh, the witness alongwith Pratap Singh and Bahiya
went. Sada lal fired at them, which did not hit, then second shot was
fired. Ved Prakash dealt with a Kassi blow on the head of Pratap Singh on
the left side, and all the accused persons showered blows on Pratap
Singh. Sada lal kept standing simply telling that if any body comes to
intervene, he will be shot dead. When witness Bahiya went to intervene
she was also given beating. Najar Singh caused injuries to witnesses by
Gandasa, Makhan Singh with Sela, Gokul Singh with Sela and Ved Prakash
with Kassiya. Likewise, he also deposed about injuries caused to Bahiya.
Thereafter, all the accused persons gave beating to Pratap Singh, who
was lying in Killa No.7, then Jarnail Singh and Karnail Singh raised a cry,
thereupon accused persons went away. Karnail Singh and Jarnail Singh,
then brought the injured under the shade of khejadi tree and then went
to lodge the report. Police came and undertook necessary investigation,
prepared various memos, which bear his signatures. Then in cross-
examination, he denied the suggestion about any case having been
initiated against him under Section 110 Cr.P.C on the complaint of Makhan
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(Ved Prakash & Ors. Vs. State)
Singh. Then, he was cross-examined about the details of injuries, where
he has maintained the statement given in examination-in-chief. He was
confronted with police statement Ex.D/2 about all the five accused
persons having given beating to Pratap Singh, and the place where he
had fallen, which facts is not mentioned in Ex.D/2. He has stated that he
was having turban on hand, which turban got cut. Then, he stated that
Sada lal had fired gunshot from a distance of about 10-15 paces, which
did not hit. He has denied the suggestion about any shot having not been
fired at that place. Then he was confronted with other contradictions in
Ex.D/2, about the act of Sada lal in threatening others. PW/4 Karnail
Singh and PW/8 Jarnail Singh have corroborated these witnesses, and
have proved various memos prepared by the police, which bear their
respective signatures.
It was contended by learned counsel for the appellant, that
the learned trial court has found the accused Ved Prakash only, to be
guilty for offence under Section 302 IPC simplicitor, and other accused
persons have not been held responsible for that. It has also been found
that evidence is of Ved Prakash having inflicted one Kassiya blow on the
head of deceased. On this basis it was contended, that though Pratap
Singh was found to have sustained number of injuries, but in absence of
finding guilty for the other injuries, he can be held responsible for the one
injury only, and by causing that injury, offence under Section 302 IPC is
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D.B. Crl. Appeal No. 100/84
(Ved Prakash & Ors. Vs. State)
not made out. Rather the only office made out would at best not travel
beyond section 304 part II, for which he is required to be released on the
period of imprisonment already undergone by him, as he as remained in
jail for more then three years. Then it was submitted, that so far as other
accused persons are concerned, their conviction was not seriously
challenged, but was submitted that for the offences for which they have
been convicted, more so, when the offence relates to year 1982, and the
accused persons are on bail since 1983, it would not be in the interest of
justice to send them back to jail for serving their remaining period of
sentence, and they should be released on the sentence already
undergone. Learned Public Prosecutor on the other hand,
supported the impugned judgment and submitted that looking to the
severity of the injury on the head, which has resulted in death of
deceased, the case clearly falls under Section 302 IPC. Regarding other
accused persons, it was submitted that now significant time has elapsed,
but then looking to the nature of injuries caused and the period of
imprisonment having undergone, which is bit less than eight months, it is
not a fit case where they should be released on sentence already
undergone.
The learned public prosecutor on the other hand supported
the impugned judgment.
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D.B. Crl. Appeal No. 100/84
(Ved Prakash & Ors. Vs. State)
We have heard both the sides and have closely scanned the
entire record.
So far as the accused Makhan Singh and Gokul Singh are
concerned, they have been conviction under Sections 148, 325, 324/149,
323 IPC.
Looking to the injuries of Bahiya and Balbir Singh as found in
their respective injury reports, being Ex.14 and Ex.15, its shows that
Balbir Singh has received incised wound 2 ” x 3/4 ” x bone deep on the
front parietal region, lacerated wound 1 ” x 1/8 ” scalp deep on the left
occipital region, then lacerated wound on left ankle joint and on the right
leg. There was swelling on lower one third of left arm. On X-ray, the
injury on the forearm, and on the left leg, were found to be grievous.
Likewise, Bahiya had incised wound 1 3/4″ x ΒΌ” muscle
deep on the parietal region, then lacerated wound on the left index finger,
swelling on the back side of left hand, and there was also swelling on the
left shoulder on the back side. Further, there was incised wound on the
left hand below 3rd metacarpal phalange joint. Out of them, the injury on
the shoulder was found to be grievous. Then, a look at the postmortem
report shows, that the fatal injury, being injury no.1, on the head of
Pratap Singh was a lacerated wound 5 x 2 cm x bone deep over left
parietal area. There was swelling 2x 2 cm over left parietal, with sub-
dural haemotoma.
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D.B. Crl. Appeal No. 100/84
(Ved Prakash & Ors. Vs. State)
It is significant to note, that the learned trial court has not
charged all the accused persons with the aid of Section 149 IPC, nor have
found them guilty with the aid of Section 34 IPC., so far as offence under
Section 302 IPC is concerned, and there is no challenge to that judgment
by the State either. In that view of the matter, it is required to be
considered, that so far as death of Pratap Singh is concerned, only
individual accused persons, who may have caused fatal injury can be held
to be responsible.
In the present case, the trial court has found only the
accused Ved Prakash to be guilty, and again, there is no challenge to that
by the State, though Ved Prakash has been attributed many injuries, but
the trial court has found the injury on head of Pratap Singh to have been
caused by Ved Prakash. In our view, from the reading of statements of
four witnesses PW/1, PW/2, PW/4 and PW/8, in the entirety, we are at
one with the learned trial court, to the extent, that this head injury was
caused to Pratap Singh, by Ved Prakash.
Again this is required to be considered, as to whether the
accused Ved Prakash has rightly been found to be guilty for the offence
under Section 302 IPC. In our view, the answer is to be in negative,
inasmuch as when accused Ved Prakash is attributed Kassi, which is a
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(Ved Prakash & Ors. Vs. State)
sharp edged weapon, he could have very well inflicted the blow with the
sharp side, but injury has been caused by the reverse side. It has also
been found by the trial court, that the accused persons had no intention
of causing death of any of the victims, but the intention was only to give
beating. In that view of the matter, it cannot be said, that Ved Prakash
caused death, by causing injury, with intention to cause death. But at the
same time considering to the part of body selected, and the severity of
the blow, it can very well be inferred, that while inflicting such a severe
blow, the accused very well knew that he would be causing such an
injury, as would be sufficient in the ordinary course of nature to cause
death. Thus, the act of the accused, clearly falls within the second part of
Section 304 IPC.
So far as other accused persons are concerned, true it is that
they have caused serious injuries to the two victims, but then, accused
Sada lal who was charged under Section 307 IPC, has been acquitted of
the said charge. This coupled with the fact, that may be the accused
persons have remained in jail only for a period little less than eight
months, but then the fact also does remain, that the occurrence relates to
year 1982, and accused Makhan Singh and Gokul Singh are already on
bail since 1983. At the time of occurrence, accused Gokul Singh appears
to be of age of 25 years, while accused Makhan Singh appears to be of
age of 36 years. Thus, the accused Gokul Singh must be around 50 years
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(Ved Prakash & Ors. Vs. State)
by now, and Makhan Singh would be in his sixties. In such
circumstances, in our view, it would not be in the interest of justice, to
send them back to jail to serve out the remaining term of sentence, and
instead, a heavy amount of fine should be imposed on them.
Accordingly, the appeal is partly allowed. The conviction of
accused Ved Prakash under Section 302 IPC is set aside, instead he is
convicted for the offence under Section 304 Part II IPC, and is sentenced
to seven years rigorous imprisonment, and fine of Rs. 1000/-, in default of
payment of fine, he shall undergo one year’s further rigorous
imprisonment. Since he has already served out the sentence imposed on
him for the other offences under Section 324, 325, 148 IPC, we need not
interfere with that part of the sentence. Then, the substantive sentence
of imprisonment awarded to accused Makhan Singh and Gokul Singh is
reduced to the period already undergone. However the sentence of fine
imposed on Makhan Singh is increased to Rs. 5000/- on each count, being
under Section 148, 325/149 and 324/149 IPC, and, in default of payment
of fine, he will undergo further rigorous imprisonment for one year on
each count, consecutively and separately. Similarly, sentence of fine
imposed on Gokul Singh is also increased to Rs. 5000/- on each count,
being under Section 148, 324/149, 325 and 323/149 IPC, and in default
of payment of fine, he will undergo further rigorous imprisonment for one
year on each count, consecutively and separately.
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D.B. Crl. Appeal No. 100/84
(Ved Prakash & Ors. Vs. State)
Out of the amount of fine, when recovered, a sum of Rs.
12,500/- be paid to each of the injured, Smt. Bahiya and Balbir Singh, for
the injuries suffered by them.
(C.M. TOTLA), J. (N.P. GUPTA), J. bjsh