Nisha Gupta, J.@mdashBoth these appeals have been preferred against judgment passed by Additional Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur in Sessions Case No. 13/2008 in one FIR arising out of one incident, hence these are being decided by this common judgment.
2. In these appeals, the appellants were convicted and sentenced as under:
"Appellant Babu Lal (Appeal No. 800/2010)
Under Section 302/49 IPC:--to undergo Life imprisonment and a fine of Rs. 100/- each in default of payment of fine, to further undergo one month R.I. each;
Under Section 147 IPC:--to undergo one year R.I.;
Under Section 447 IPC:--to undergo three months R.I.;
Under Section 323 IPC:--to undergo one year R.I.;
Appellants Hanuman Sahai, Sitaram and Madan Lal (Appeal No. 823/2010)
Under Section 302/49 IPC:--to undergo Life imprisonment and a fine of Rs. 100/- each in default of payment of fine, to further undergo one month R.I. each; Under Section 147 IPC:--to undergo one year R.I.;
Under Section 447 IPC:--to undergo three months R.I.;
Under Section 323 IPC:--to undergo one year R.I.;
(All the sentences were ordered to run concurrently)"
3. The facts in short are that PW/3 Shankar Lal lodged a written report (Ex. P/1) on 5.12.2002 at Police Station Shivdaspura, Jaipur with the contention that he is resident of Chandlai. On 5.12.2002 at 8.30 A.M., Ram Narain, Ramavtar, Madan, Pooran, Babulal, Hanuman, Sheyoji, Sitaram, Madan S/o. Hanuman, Raju, Laluram etc. armed with sticks, Pharsa and Axe etc. came to their house and started beating ladies of the house. Sita Devi w/o Ram Narain, Panchi Devi w/o Ramavtar and Dhapu Devi w/o Nathu Bhai also came behind them and they started throwing house-hold articles. Nathu Panda ran behind him having Axe in his hand. Blow was inflicted on the head of Hanuman and Rameshwar. It is also contended in the written report that earlier also accused persons gave beating to them for which report was lodged and case is pending. On this written report, FIR No. 265/2002 was registered and after investigation, charge-sheet was filed against five appellants namely Ram Narayan, Madanlal, Ramavtar, Pooran and Shyojiram and qua rest of the accused, investigation was kept pending under Section 173(8) Cr.P.C. The case was committed and tried by Additional Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur.
4. After conclusion of investigation under Section 173(8) Cr.P.C., additional charge sheet was presented against Babulal, Hanumansahai, Sitaram and Madanlal. The case was committed and tried by Additional Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur. The charges were framed against the appellants for the offence under Sections 147, 447, 323, 302/149 IPC. The said charges were denied by the accused and they claimed to be tried. The prosecution in support of its case examined PW/1 Lali w/o Pooran, PW/2 Lali w/o Shankar, PW/3 Shankarlal, PW/4 Motidevi, PW/5 Geetadevi, PW/6 Madanlal, PW/7 Syojiram, PW/8 Rameshwar, PW/9 Lalchand, PW/10 Pooran, PW/11 Nathuram, PW/12 Jagdish, PW/13 Shravan, PW/14 Ramchandra, PW/15 Gopal Lal, PW/16 Dinesh, PW/17 Ghasiram, PW/18 Suresh, PW/19 Ram Narayan, PW/20 Omprakash, PW/21 Rameshchand, PW/22 Babulal, PW/23 Dr. R.K. Verma, PW/24 Girraj, PW/25 Lalchand, PW/26 Dr. Ashok Mathur, PW/27 Harisingh, PW/28 Yadram and PW/29 Ramsingh and exhibited documents Ex. P/1 to P/36. The appellants were examined under Section 313 Cr.P.C and they relied upon defence witnesses D.W./1 to D.W./3 and documents Ex. D/1 to D/20 were produced.
5. After conclusion of trial, vide judgment dated 28.10.2010, accused appellants Babulal, Hanuman Sahai, Sitaram and Madan Lal were convicted and sentenced as referred above, hence these appeals have been preferred.
6. Heard the learned counsel for the parties and perused the judgment under appeal as well as paper book and original record of the case.
7. The contention of the counsel for the appellants is that the whole prosecution story is concocted and false one. The whole case of the prosecution stand demolished as it is contrary to the written report. Nathu Panda has been replaced by other accused persons. Laluram has been named as accused but no charge-sheet has been filed against him. On material facts case of the prosecution is false, it should have been disbelieved. Hanuman was medically examined but no injury report has been submitted and even Doctor has not been examined. Deceased died after 8 days of the incident. Place of occurrence has been changed. The occurrence has happened on the spur of moment without pre-mediation of mind. The complainant party tried to implicate more and more persons and against some of the persons even charge-sheet has not been filed. No specific injury has been attributed to any of the appellants. Injured persons received only minor and simple injuries. Enmity between both the parties is well-established and therefore, possibility of false implication cannot be ruled out. The plea of unlawful assembly cannot be accepted when occurrence took place on the spur of moment. Further, for appellant Babulal, it has been submitted that PW/2 Lalli, PW/4 Motidevi, PW/9 Lalchand and PW/18 Suresh have not named him and other witnesses have named him but no specific role or injury has been assigned to him. He has been implicated falsely and deserves acquittal.
Per contra, the contention of the learned Public Prosecutor is that the witnesses who are also injured witnesses have categorically stated that after forming unlawful assembly, accused persons gave beating in which one person died and number of persons received injuries. The court below has rightly convicted and sentenced the appellants, hence, no interference is needed.
8. PW/3 Shankar is informant who stated that on 5.12.2002 at about 8.00 A.M., he was sitting on the roof of his house. Her wife Lalli Devi was in agricultural field and Aunt Lalli was also with her. Ram Narayan along with 15-20 people came there armed with Sariya, Axe etc. They started giving beating to his wife and have disturbed the water flow and when his wife restrained her for the same, they started beating her. Hanuman went there. Ram Narayan and Sitaram inflicted blow to Hanuman on his head. Rameshwar, Madan and Sheojilal also received injuries. He further deposed that initially, Ram Narayan and Sitaram inflicted blow and thereafter other persons started giving beatings. Rameshwar and Hanuman fell unconscious. He lodged the written report and all injured persons were taken to hospital.
9. PW/1 Lalli w/o Pooran stated that in the morning 7-8 AM she was in the agricultural field. Lalli wife of Shankar was also with her. At that time, Ram Narayan, Madan, Pooran, Ramavtar, Lalu, Raju, Sitaram, Rameshwar, Madan S/o. Rameshwar and ladies Sita, Panchi, Kaushaliya etc. came there. They broke the water flow and on restraining, they started giving beating to them. Lala came there. Ram Narayan, Sita, Madan and Pooran inflicted lathi blow to Lala on his head. When Hanuman came there to intervene he was also given beating. In the incident Rameshwar, Madan, Pooran, Geeta and Lalli w/o Shankar etc. suffered injuries.
10. PW/2 Lalli wife of Shankar, injured eyewitness stated that in the morning at 7.00 she was in agricultural field along with Lalli w/o Pooran. At that time, Ram Narayan, Pooran, Madan, Lalaram, Syoji and Madan disturbed the water flow and all gave beating to them. Both suffered injuries. Hanuman died in the incident. Geeta, Mota Devi also received injuries. She further stated that Ram Narayan inflicted Barchi blow to Hanuman on his head. PW/4 Moti Devi also testified on the same lines that all the accused person gave beating to them. Hanuman died and family members rushed there to intervene.
11. PW/5 Geeta Devi who is also injured eye-witness stated that on hearing noise she reached to the place of occurrence she saw Ram Narayan, Pooran, Madan, Sitaram, Ramavtar and Babu were giving beating to her brother-in-law. The dispute was as regards to boundary of the field. PW/6 Madanlal another injured eye-witness stated that Ram Narayan and Sitaram inflicted lathi blow to Hanuman on his head and Pooran and Laluram also inflicted injuries to Hanuman on his head. Hanuman fell unconscious. Thereafter all accused persons gave him beating. He also received injuries in the incident. Hanuman died. He stated that incident took place in front of their house on the open land. PW/7 Seojilal is another injured eye-witness who stated on the same lines that Ram Naryan etc. inflicted injuries to Hanuman, Rameshwar, Madan, Geeta, Lali etc. PW/8 Rameshwar also reiterated the same facts that Ram Narayan, Pooran, Sitaram inflicted blow to Hanuman on his head but he stated that ladies were not close and they were standing at some distance near the boundary. PW/9 Lalchand is also injured eye-witness who stated that Ram Narayan, Sitaram, Lallu and Pooran inflicted injuries to Hanuman on his head and others inflicted injuries to him when he fell down. PW/10 Pooran is the eye-witness who stated on the same lines that Ram Narayan and others disturbed the water flow and when Lalli Devi restrained them, Ram Narayan and Sita Ram gave blow to her. Hanuman reached there running. Sita Ram and Ram Narayan inflicted lathi blow on head. Hanuman fell down. Thereafter other accused persons gave beating to him. PW/18 Suresh is another injured witness who also attributed same role to Ram Narayan and Sitaram.
12. PW/23 Dr. Rajesh Kumar Verma conducted the post mortem and as per post mortem report (Ex. P/36), deceased Hanuman suffered the following injuries:--
"1. Abrasion 4x3 cm on left-lateral side of back of chest. Brownish
2. Linear abrasion five in number varying in size 3 cm x 2 cm lateral side of left rib, back on left 1/3 aspect brownish, hard scab.
3. Bruise 1x1 cm left side inter scapular region.
4. Abrasion two places 4x2 two 1x1 cm left buttock brownish hard.
5. Abrasion 1x1/2 cm on anterior of chest 1/3 part brown hard.
6. Linear abrasion 8 in number varying in size 3 cm x 2 cm on right side back of chest brown hard shrunken scab.
7. Abrasion 4 in number varying in size 1x 1/2 cm to 1/2 x 1/2 cm right lateral side of right thigh 1/3 hard scab brownish.
8. Stitched wound 1 cm long present over left temp occipital region with red clotted blood.
9. Stitched wound 1 1/2 cm long on right occipital region with clotted blood.
10. Stitched wound 4 cm long present over left parietal region.
11. Abrasion in an area 6x4 cm with 5 cm stitched wound with clotted blood on left parietal temporal region brownish hard scab. On further examination of injury No. 8, 9, 10 and 11 show sub scalp haematoma dark red in colour.
12. Stitched wound 25 cm long left fronto parietal temporal region.
13. Stitched wound 36 cm long right fronto parietal temporal region. Semi circular in shape with sub scalp haematoma.
14. Bruise 10x4 cm right ear pinna upto right side neck laterally.
Cause of death is Coma brought about as a result of anti mortem injuries to skull and brain as per post mortem examination, injuries mentioned in the post mortem report, were sufficient to cause death in ordinary course of nature."
13. PW/26 Dr. Ashok Mathur examined injured Lalli w/o Pooran Mal (PW/1), Lalli Devi w/o Shankar Lal (PW/2), Moti Devi (PW/4), Geeta (PW/5), Madanlal (PW/6), Shivjilal (PW/7), Rameshwar (PW/8), Lalchand (PW/9), and Suresh (PW/18) and according to him they received following injuries:--
"Geeta : 1. Lacerated wound 4x1 cm, scalp tissue deep on mid parietal area of scalp with fresh clotted blood.
2. Lacerated wound 3 cm x 1 cm on front of right leg tibial skin with fresh clotted blood.
Lalli w/o Pooranmal: 1. faint transverse bruise 5cm x 1 cm red in colour on lateral aspect of left thigh.
2. Diffuse swelling with c/o pain and tenderness, right parietal area.
3. Abrasion 1 x 1/2 cm on right wrist anteriorly.
Lalli Devi w/o Shankar: 1. Abrasion 2 1/2 cm x 1/2 cm medial side of left leg lower 1/3 red in colour.
2. c/o pain with mild tenderness on lower back.
Mota Devi: c/o pain on lower abdominal region no visible injury seen.
Madan Lal: 1. lacerated wound 3cm x 1/2 cm on left occipital parietal area with fresh clotted blood.
2. c/o pain on back of right shoulder with tenderness.
Rameshwar: 1. Lacerated wound 5cm x 1 cm scalp tissue deep on left occipital parietal area of scalp with fresh clotted blood.
2. lacerated wound 2cm x 1/4 cm on post lateral aspect of left upper arm with fresh clotted blood.
Lal Chand: stitched wound 5cm long with abraded margin red in colour placed on mid parietal area.
Suresh: 1. Rub abrasion 7 cm x 1 cm on left leg tibial skin lower 1/3 with red scab.
2. Abrasion 2x 2 cm with red scab on dorsum of right elbow.
3. c/o pain on right scapular area.
Shivjilal: 1. Faint bruise bluish in colour over just above right knee joint with c/o pain and tenderness.
2. c/o pain with mild tenderness on abdomen."
14. The contention of the counsel for the appellants is that totally contrary and different case has been set up during trial. In First Information Report injuries were assigned to Nathu Panda whereas after investigation he was cited as witness and examined as PW/11 and when there is a total shift from the original case, the whole prosecution story should not be believed and reliance has been placed on
"Keeping in view the facts and circumstances of the case, particularly the variance between the FIR and the depositions made in the court, the mention of gun shot injuries in the panchanama and their absence in the FIR, the conflict between the statements of eye-witnesses and the medical evidence and major contradictions and improvements in the depositions of the eye-witnesses, we are of the view that the prosecution failed to prove their case against the appellants beyond all shadows of doubt. The appellants are, therefore, held entitled to the benefit of reasonable doubt. To form an opinion giving the appellants-accused the benefit of doubt we have kept in mind the defence as projected and suggested by them to the witnesses during their cross-examination."
15. Further reliance has been placed on
16. The contention of the counsel for the appellants is that witnesses have improved their version from their previous statement and they have been confronted with their previous version. There is no dispute about the fact that prosecution witnesses have been contradicted from their earlier statements recorded under Section 161 Cr.P.C. but there seems no material departure from earlier version. Number of persons suffered injuries in the incident, hence some difference is bound to occur in the statement as the observation and reproduction capacity of the person cannot be same and witnesses who suffered injuries in the occurrence is a guarantee inbuilt that they were present at the spot. If there is some discrepancies in the evidence, the total prosecution case cannot be thrown out. PW/10 Pooran is an independent witness who has testified the prosecution story.
17. The further contention of the counsel for the appellants is that place of occurrence has been changed. PW/1 Lalli w/o Pooran and PW/2 Lalli w/o Shankar stated that occurrence took place in an agricultural field whereas in FIR it has been stated that occurrence occurred at the house of the complainant party and PW/3 Shankarlal also stated that he was at the house at the time of occurrence. Site plan (Ex. P/6) clearly speaks that agricultural land and house of complainant party are in the same periphery and Investigating Officer, Yad Ram (PW/28) verified the fact that water flow was near the boundary of the field and as per Ex. P/6 site plan, occurrence also took place near the house of complainant party and witnesses stated that when ladies were at the agricultural field, accused persons came there, they disturbed the water flow and when they were restrained, they started beating Hanuman other persons reached there running, beating was also given to them and witnesses ran towards the house to save themselves. Hence in the manner in which the incident took place, it cannot be said that prosecution has changed the place of occurrence particularly when agricultural land and houses of the complainant party are nearby.
18. In view of the above, the contention of counsel for the appellants that place of occurrence has been changed is not acceptable and Ex. P/6 also reveals that occurrence took place at the agricultural field of Shivji Lal and also outside the house of Shivji Lal.
19. The further contention of the counsel for the appellants is that all the witnesses specifically stated that Lalla inflicted injury to Hanuman but Lalla not even was charge-sheeted but this fact alone cannot caste doubt on veracity of the prosecution case and the principle of "falsus in uno falsus in omnibus" is not applicable in India and as the case against Lala has not been supported by the prosecution, the whole story of the prosecution cannot be disbelieved and reliance can be placed on
"The maxim falsus in uno falsus in omnibus has not received general acceptance in different jurisdiction in India nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence"
Further law has been explained as in
"The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
20. The contention of the counsel for the appellants is that witnesses are interested witnesses and they are telling lie and when grain could not be demobilized from chaff, the whole prosecution story should have been disbelieved. But here in the present case, looking to the totality of the circumstances and the fact that injured witnesses whose presence was expected at the place of occurrence and they have deposed that Ram Narayan, Sitaram and Pooran inflicted injuries to Hanuman and all the witnesses are consistent on this fact and there is no discrepancy as regards to the fact that Ram Narayan, Sitaram and Pooran inflicted fatal injuries to the deceased. As per Post Mortem Report (Ex. P/36), deceased suffered 11 injuries and even on head, he suffered 4 injuries, the ocular evidence is further fortified by the medical opinion and reliance is rightly placed on the evidence of injured witnesses. Hence in view of the above, it can be concluded that Sitaram inflicted injuries to deceased Hanuman which are found to be fatal.
21. Hence in the totality of the circumstances it can be observed that all the eye-witnesses stated in one voice that Ram Narayan, Pooran and Sitaram came first, they disturbed the water flow near the boundary and when they were restrained by ladies, they started giving beating to them and when Hanuman came to intervene, all the three inflicted injuries on his head which have been found to be fatal. Thus, the accused Sitaram acted in furtherance of common intention and injuries were caused on the vital part of the body i.e. skull. As per Post- Mortem Report (Ex. P/36) number of injuries were received by the deceased on skull which were found to be fatal, hence conviction of the accused Sitaram is liable to be converted from 302 and 302/149 to 302 read with 34 IPC.
22. The counsel for the complainant has submitted that appellants were the member of unlawful assembly and caused death in furtherance of common object of assembly so all should have been liable for offence of murder and reliance has been placed on
23. There cannot be any dispute as regards to legal position that if a person at the time of committing offence is a member of unlawful assembly, he would be liable vicariously and he will also be guilty of the offence which has been committed by any member of assembly and causing injury or not causing injury is not relevant if the common object of the assembly was to commit murder but here in the present case, the manner in which the incident occurred clearly reveals that initially only three persons Ram Narayan, Sitaram and Pooran came. They disturbed the water flow and when Hanuman came there to intervene, they inflicted blow to him on head which proved to be fatal. Witnesses clearly deposed that other persons came afterwards, hence other persons cannot be held liable vicariously as there is no evidence that other persons knew that offence is likely to be committed in furtherance of common object. The prosecution has not come with a case that there was any premeditation of mind or any unlawful assembly has been formed with intention to commit murder. The court cannot become oblivious of the fact that in written report, number of persons even ladies have been named and Nathu Panda was also named but thereafter charge-sheet has been filed only against 11 persons out of which three have been acquitted by the court below. Hence possibility cannot be ruled out of false implication of the persons as there was enmity between the parties. No specific role has been assigned to rest of the appellants. Hence in the totality of the circumstances, as abundant caution, we are inclined to grant benefit of doubt to rest of the appellants.
In the result as observed earlier, the conviction of appellant Sitaram is converted to 302/34 IPC while maintaining his sentence.
However, the appeal as regards rest of the appellants Babu Lal, Hanuman Sahai, and Madan Lal S/o. Hanuman Sahai deserves to succeed and is accordingly allowed.
Both these appeals are accordingly disposed of.
Appellants Babu Lal, Hanuman Sahai, and Madan Lal S/o. Hanuman Sahai are acquitted of the charges levelled against them. If they are in jail and not required to be detained in connection with any other case, they may be released forthwith. However, if they are on bail they need not surrender and their bail bonds stand discharged subject to compliance of Section 437A Cr.P.C.
Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused appellants Babu Lal, Hanuman Sahai, and Madan Lal S/o. Hanuman Sahai are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellants, on receipt of notice thereof, they shall appear before Hon''ble the Supreme Court.
