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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
Nimba Ram & ors. Vs. State of Rajasthan
D.B.CRIMINAL APPEAL NO.468/2002
against the judgment dt.18.6.02
Passed by the learned Addl.Sessions Judge, Sojat,
in Sessions Case No.28/1999.
Date of Judgment: 22 n d April, 2009
P R E S E N T
HON'BLE MR.JUSTICE A.M.KAPADIA
HON'BLE MR.JUSTICE DEO NARAYAN THANVI
Mr.D.S.Udawat, for the appellants.
Mr.K.R.Bishnoi, Public Prosecutor.
BY THE COURT : (PER THANVI J.)
1. This is an appeal against the judgment of the learned
Additional Sessions Judge, Sojat Camp Jaitaran, Pali,
dt.18.6.2002, whereby he convicted accused appellant Sukha
Ram of the offences u/ss.148 & 302 IPC and rest of the accused
appellants viz; Nimba Ram, Chautha Ram, Teja Ram, Dayal,
Mana Ram and Shrawan of the offences u/ss.148 and 302 read
with 149 IPC. For the offence u/s.148 IPC, each of the accused
appellants was sentenced to undergo one year’s R.I. alongwith a
fine of Rs.1000/- & in default, to further undergo one month’s
R.I. Accused Sukha Ram u/s.302 and rest of the accused
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appellants u/s.302 read with 149 IPC were sentenced to undergo
life imprisonment together with a fine of Rs.5000/- and in
default, to further undergo six months’ R.I. All the substantive
sentences were ordered to run concurrently. Out of the amount
of fine to be recovered from all the accused, Rs.25,000/- was
ordered to be paid to wife of deceased Chandra Ram.
2. Brief facts leading to this appeal are that on 24.2.99, the
complainant Narayan filed a written report, Ex.P.1 that on that
day in the morning, he alongwith Bhanwar Singh went from
village Patan to D.L.F.Mines and came back at 10 AM. When they
reached near the `Hathai’ (platform for gossiping) of the village,
they were told by Raju that his brother Chandra Ram was being
beaten at the well of Narayan. Upon this, they reached on the
spot, where they saw their sister Shravni weeping and also
noticed accused Sukha Ram with axe and rest of the accused
appellants with lathis beating Chandra Ram. On seeing them, the
accused party ran away from the spot. Accused appellants
Chandra and Shravan were empty handed but they were giving
fist blows. Papudi (PW 2) was also present there. According to
the F.I.R., the accused appellants killed Chandra Ram and threw
the dead body near the bushes. On this report, the police
registered a case u/ss.302 and 148 IPC and commenced
investigation. During investigation, the police recovered one axe
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from accused Sukha Ram and lathis from rest of the accused
appellants. The recovery of blood stained clothes and soil was
also made, which were sent for chemical examination. After
investigation, the police filed challan against the above seven
accused appellants but the police left accused Chandra. The
learned Magistrate committed the case to the Court of Sessions,
where the charges were framed. Accused Sukha Ram was
charged u/ss.148 and 302 IPC and rest of the accused appellants
under ss.148 and 302 read with 149 IPC. The prosecution
examined 17 witnesses. The statements of the accused were
recorded under Section 313 CrPC. They produced three
witnesses in their defence. After hearing the arguments, the
learned trial Judge convicted & sentenced the accused appellants
as above.
3. While assailing the judgment of the learned trial Judge, it
has been contended by the learned counsel that out of 17
witnesses examined by the prosecution, there were six eye
witnesses of the case viz; Narayan (PW 1), Papudi (PW 2), Raju
Singh (PW 3), Bhanwar Singh (PW 5), Shravni (PW 7) and
Mugna Ram (PW 15). Out of these six eye witnesses, three
witnesses viz; Papudi (PW 2), Raju Singh (PW 3) & Bhanwar
Singh (PW 5) have turned hostile, who were named in the F.I.R.
itself as eye witnesses, and Mugna Ram (PW 15), whose name
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was not there in the FIR as eye witness, has been disbelieved by
the learned trial Court. Thus according to him, there remains
only two eye witnesses of the case viz; Narayan, PW 1 and
Shravni, PW 7, whose evidence is also unreliable, as Narayan,
PW 1 reached on the spot after the incident took place as per the
FIR itself and Shravni, PW 7 was not present on the spot in view
of the defence led by the accused appellants. He has further
submitted that according to the doctor, the axe, by which
accused Sukha Ram is alleged to have given blow on the
deceased Chandra Ram, was not found blood stained and it was
not sent for chemical examination. He has also drawn the
attention of the Court towards the site plan Ex.P.2 and Ex.P.3 by
asserting that the place where the incident took place, is the
joint well of the complainant and the accused party and there
was a previous murder case lodged against some of the
prosecution witnesses of this case and on this account, the
accused appellants have been falsely implicated on the trivial
matter of taking water for agricultural purposes from the well.
He has further submitted that in all, there are 12 injuries and not
a single injury is incised wound, as all the injuries are lacerated
wounds and abrasions. According to him, Dr.Laxmikant, PW 9,
who conducted the post mortem report Ex.P.24, has also stated
that no injury was caused by the sharp edged weapon and that if
the deceased would have been given medical treatment, he
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could have been saved. According to the doctor, except the
lacerated wound on the right side of the scalp, death could not
have been caused by rest of the injuries. He has further
submitted that there is no question of formation of unlawful
assembly, as the place where the incident took place, is the joint
property of the complainant and the accused party.
4. Per contra, learned Public Prosecutor has supported the
judgment of the learned trial Court.
5. We have heard the arguments of both the parties at length
and re-appraised the evidence brought on record. First of all, we
will discuss the conviction of the accused appellants under
Section 148 IPC, which provides punishment for rioting, armed
with deadly weapons. For constituting the riot, there must be use
of force or violence by the members of the unlawful assembly.
Unlawful assembly has been defined under Sec.141 IPC, which
defines an assembly of five or more persons having a common
object composing the assembly to do any of the five criminal
acts laid down in the Section. The Explanation of this Section
also says that an assembly which was not unlawful when it
assembled, may subsequently become an unlawful assembly.
Therefore, in the light of the definition given in Section 141 IPC,
an assembly of five or more persons also becomes an unlawful
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assembly subsequently, if they are having a common object to
do a criminal act.
6. The common object has to be inferred from the facts and
circumstances of each individual case like weapons used and the
nature of injuries caused. In sudden attack pursuant to a
quarrel, the Court cannot infer pre-planned attack and in such
case, every individual offender is guilty for his separate act. In
the above light, if the facts & circumstances of the present case
are looked into, it is clear from the site plans Ex.P.2 and Ex.P.3
that `Bera Gorva’ is on the joint land of the complainant and the
accused party in which there are three wells. At point-1, there is
water engine of deceased Chandra Ram, at point-2 there is
water engine of accused Teja Ram and at point-3, there is water
engine of accused Chautha Ram and his brothers. This shows
that on the well, marked portion `X’, there are three water
engines, one belonging to the complainant and rest two of the
accused party. The presence of the accused party at their water
engines is quite natural, as the well was in the joint possession.
When the presence of the accused is natural, then the Court has
to gather as to how unlawful assembly has been formed.
According to the FIR and the statements of two eye witnesses
who have been relied upon by the learned trial Judge viz;
Narayan, PW 1 who is the author of the FIR and Shravni, PW 7,
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the accused appellants were beating deceased Chandra Ram at
the well. Both these witnesses have not said anything as to how
these accused persons formed the unlawful assembly. The
evidence of Narayan, PW 1 is that he was told by Raju that his
brother has been beaten by the accused appellants. When he
reached on the spot, accused Sukha Ram inflicted axe blow and
rest of the accused gave lathi blows. Shravni, PW 7, said that her
brother deceased Chandra Ram was operating engine on the
well, where accused Nimba Ram started fighting and rest of the
accused inflicted lathi blows alongwith accused Sukha, who was
having axe in his hand. In the cross examination, she has stated
that when her brother went on the well, accused Nimba Ram,
who was already there, started verbal altercation with her
brother and rest of the accused were sitting near the bushes. If
the evidence of these eye witnesses is scrutinized in right
perspective, the only inference which can be drawn is that the
assembly of the accused persons was not unlawful but was the
natural one. So far as the common object is concerned, it is true
that a criminal case against some of the witnesses particularly
Narayan,PW 1 is pending with regard to murder of father of
accused appellant Teja Ram in which accused Chautha Ram,
Sukha, Shrawan and Teja Ram are the witnesses. When such is
the situation with regard to pending case against the witness
Narayan, PW 1 in which four of the accused appellants are the
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witnesses, it is quite possible that he might have exaggerated
the story by implicating the accused for common object. Though
enmity is a double edged weapon but when in a particular case,
motive is lacking except that deceased Chandra Ram came on
the well and fight started there, where accused appellants were
already sitting on their wells, the only inference which can be
drawn is that it was the individual act of the accused to resist
him from taking water from the well. Such an act of the accused
cannot be termed as a common object in forming an unlawful
assembly. This can be further strengthened from the fact that
one Chandra, who was named in the FIR as accused, has not
been chargesheeted by the police and no weapon has been
shown in the FIR Ex.P.1 with Chandra and Shrawan. In view of
the above discussion, we are of the view that formation of
unlawful assembly with common object as defined u/s.141 IPC
has not been proved and the learned trial Judge has not rightly
appreciated the evidence in the above light.
7. When the unlawful assembly and common object have not
been proved, then it has to be seen as to what is the individual
act of the accused. In this regard, out of the two witnesses relied
upon by the learned trial Court, Narayan (PW 1) has stated that
accused Sukha Ram inflicted axe blow on the head and rest of
the accused gave blows on other parts of the body of deceased
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with lathis. In the cross examination, he has stated that he and
Bhanwar Singh reached on the spot together. Bhanwar Singh,
PW 5, has turned hostile and according to Narayan, PW 1, when
he reached on the spot, thereafter the accused ran away,
therefore, he did not try to intervene. In the later part of his
cross examination, he has stated that he saw accused Sukha
Ram inflicting axe blow on the head of the deceased and then
the accused ran away, the relevant portion of his statement is
extracted as under:
“…. मर दखत ह स र पर च ट कलह ड क म र थ और ब द
म वह भग गय।”
Shravni, PW 7 has stated that axe blow was given by
accused Sukha and rest of the accused inflicted blows on ribs
and rear side, upon which her brother fell down.
If the evidence of these two witnesses is looked into in the
light of the medical evidence of the Dr.Laxmikant, PW 9, who
conducted the post mortem vide Ex.P.24, it is clear that there
were in all 12 injuries. Injury No.1 is lacerated wound on right
parietal region of scalp, injuries No.2 and 3 are lacerated
wounds, injury No.4 is on the right knee joint, which is abrasion
and rest of the eight injuries are bruises on the right & back side
of chest of deceased. The doctor has also stated in his cross
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examination that none of the injuries could have been caused by
sharp edged weapon. He has further stated that except injury
No.1, which is the lacerated wound on the right scalp, it was not
possible to have caused death by rest of the injuries. He has
further stated had there been medical treatment in time, the
deceased could have been saved. Thus, taking into account the
evidence of the eye witnesses coupled with the testimony of the
doctor, the only conclusion which can be arrived-at is that the
accused were having no intention to kill the deceased and it was
accused appellant Sukha Ram, who inflicted one axe blow on the
head resulting in death of deceased Chandra Ram but he could
have been saved, had there been any proper medical treatment
in time. This act of accused Sukha Ram cannot be described as
an intentional act of causing death or intentionally causing an
injury, which is sufficient in the ordinary course of nature to
cause death. His act can be attributed only to the extent that he
was having knowledge that by inflicting axe blow from its rear
side, which is not sharp, death might have been caused.
Therefore, the act of accused Sukha Ram can be punishable
under Section 304 part II IPC, which is culpable homicide not
amounting to murder. So far as the rest of the accused
appellants are concerned, they have simply inflicted injuries in
the nature of abrasions and bruises, which are simple in nature,
caused by blunt weapons. Therefore, the individual act of rest of
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the accused can be made punishable only under Section 323 IPC.
8. Consequently, we allow this appeal in part & while setting
aside the judgment dt.18.6.02 passed by learned Addl.Sessions
Judge, Sojat Camp Jaitaran (Pali), convicting accused appellant
Sukha Ram of the offences u/ss.148 & 302 IPC and rest of the
accused appellants Nimba Ram, Chautha Ram, Teja Ram, Dayal,
Mana Ram and Shrawan of the offences u/ss.148 and 302 read
with 149 IPC, accused appellant Sukha Ram is convicted of the
offence u/s.304 part II IPC & sentenced to the period already
undergone, which is more than seven years, together with a fine
of Rs.5000/- and rest of the accused appellants Nimba Ram,
Chautha Ram, Teja Ram, Dayal, Mana Ram and Shrawan are
convicted of the offence u/s.323 IPC and sentenced to the period
already undergone, which is about three months, together with a
fine of Rs.5000/- each. The order of the learned trial Judge in
awarding the amount of Rs.25,000/- to the wife of deceased
Chandra Ram, out of the amount of fine recovered from all the
accused appellants, is maintained. Accused Sukha Ram is in
custody, he shall be set at liberty forthwith, if not required in any
other case, on depositing the amount of fine, awarded. Rest of
the accused appellants shall deposit the amount of fine of
Rs.5000/- each within a period of fifteen days from today, if they
have not already deposited the same so far, failing which each of
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them would undergo six months’ R.I. in default of payment of
fine, imposed as above.
(DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS