Raghubir Singh vs State Of Rajasthan & Ors

Raghubir Singh .........Appellant

Vs.

State of Rajasthan & Ors. .......Respondents

WITH

CRIMINAL APPEAL NO.778 OF 2005

J U D G M E N T

HARJIT SINGH BEDI, J.

1. This judgment will dispose of Criminal Appeal Nos. 82-83

and 778 of 2005. The facts have been taken from Criminal

Appeal No. 778 of 2005.

2. As per the prosecution story, PW Prabhu Koli and his

brothers had mortgaged 5 bighas of land comprising Khasra

No. 250 to PW-1 Raghuveer Singh several years earlier to the

incident. At about 2 p.m. on the 7th August 1997, Raghuveer

Singh alongwith Chhotey Lal, Rajendra, Munshi and Girdhari

were in the process of ploughing the land when the accused,

Kallu, Kamru, Taiyab and Rahmat reached that place on two

Crl. Appeal Nos.82-

83/2005 tractors and also 2

started ploughing the same land. Raghuveer Singh protested

at this intrusion on which they attempted to run him over with

their tractors. In the meanwhile, Asuddin, Mehboob, Mauj,

Sohan Lal and Kamru armed with Farsis, Tanchias, Dantis

and lathis attacked them and whereas Mauj and Asuddin

inflicted blows with a Danti and Tanchia on the head of

Girdhari, Kallu and Rahmat ran over him with their tractors,

and when Raghuveer Singh attempted to intervene in favour of

Girdhari, Asuddin, Taiyab and Kamruddin also caused blows

to him with their weapons. Girdhari died on the spot whereas

Chhotey Lal, Lallu, Rajendra and Munshi sustained serious

injuries. Raghuveer Singh thereafter went to the Police

Station and submitted a written report at 5.30 p.m. the same

afternoon and on its basis a First Information Report was

drawn up. On the completion of the investigation, the accused

were charged under various provisions of the Indian Penal

Code, they being inter-alia Sections 302 and 302/149, 307

and 307/149. The prosecution in support of its case relied on

the evidence of 17 witnesses in all, the primary witnesses

Crl. Appeal Nos.82-

83/2005 being PW-1 3

Raghuveer Singh, the first informant, PW-2 Rajendra Kumar,

PW-3 Chhotey Lal, PW-4 Munshi Ram, PW-5 Lallu Ram, PW-6,

Suresh Kumar and PW-7 Than Singh. The prosecution also

relied on the statement of PW-14 Dr. Sanjay Gupta, who had

conducted the autopsy on the dead body and had found 5

injuries thereon and also examined five of the witnesses

aforementioned i.e. Raghuveer Singh, Rajendra Kumar,

Chhotey Lal, Munshi and Lallu and found several injuries on

their persons, some of them grievous in nature whereas from

the side of the accused Taiyab, Kallu, Rahmat, Asuddin and

Kamru were found to have been injured, though with simple

injuries. In their statements recorded under Section 313 of

the Cr.P.C. the accused denied their involvement simplicitor.

They did not lead any evidence in defence. The trial court

relying on the aforesaid eye witnesses' account and the

medical evidence convicted 7 of the 9 accused under Sections

302, 302/149, 307 and 307/149 etc. of the IPC and sentenced

them to various terms of imprisonment under those

provisions. The trial court, however, acquitted Mehboob Khan

Crl. Appeal Nos.82-

83/2005 and Taiyab. The 7 4

accused who had been convicted by the trial court challenged

their conviction by filing DB Criminal Appeal No. 796 of 1998

whereas the complainant PW Raghuveer Singh assailed the

acquittal of Mehboob Khan and Taiyab Khan by filing D.B.

Criminal Revision No. 188 of 1999. During the pendency of

the appeal in the High Court, Rahmat passed away and the

proceedings against him were disposed of as having abated.

The High Court on a reconsideration of the evidence came to

the conclusion that the land on which the incident had

happened did not belong to Prabhu but in fact belonged to the

Forest Department and was adjacent to the fields of accused

Mauj Khan and Rahmat and that the complainant party had,

on the fateful day, gone for the first time to cultivate the said

land, although Patwari had advised them not to do so. The

court also found that the accused appeared to be in

possession of the said land and finding that the complainant

party had trespassed into it and had started ploughing had

lodged a protest on which a free fight had ensued and persons

from both sides had received injuries on which an FIR had

Crl. Appeal Nos.82-

83/2005 also been 5

registered against the complainant party by Kallu accused.

The court accordingly concluded that in this view of the

matter, the provisions of Sections 147, 148 and 149 could not

be attracted and each of the accused was to be held liable and

responsible for his individual act. The High Court accordingly

examined the role of each of the accused and observed that

though Kallu had been charged under Section 302 of the IPC

for having caused the fatal injury on the left side of the back of

Girdhari with the cultivator by running over him he did not

have the intention to cause death and as such he would be

liable under Section 304 Part II of the IPC. The court

accordingly modified the conviction and sentence of the

accused as under:

(i) "Appeal of appellant Rahmuddin is allowed and he

is acquitted of the charges under Section 302/149,

447, 147,325/149,324/149 and 323/149 IPC. He

is on bail, he need not surrender and his bail

bonds stand discharged.

(ii) As appellant Rahmat Khan died during the

pendency of the appeal, proceedings against him

stand dropped.

(iii) Appeal of appellants Kallu, Asuddin, Sohan Lal,

Kamruddin and Mauj Khan stands partly allowed.

Conviction of appellant Kallu under Section

Crl. Appeal Nos.82-

83/2005 6

302,447,148,325/149,324/149 and 323/159 is set

aside, instead he is convicted under Section 304

Part II IPC. As he had been in confinement for a

period of more than six years, ends of justice would

be met in sentencing him to the period already

undergone by him in confinement, Kallu, who is in

jail, shall be set at liberty forthwith if not required

in any other case.

(iv) Conviction of appellants Sohan Lal, Mauj Khan and

Asuddin under Section 302/149,447,148,325/149

and 323/149 stands set aside and they are

acquitted of the said charges. Their conviction

under Section 324 IPC is however confirmed and

they are sentenced to the period already undergone

by them in confinement. Sohan Lal and Mauj Khan

are on bail, they need not surrender and their bail

bonds stand discharged. Appellant Asuddin, who is

in jail, shall be set at liberty forthwith, if not

required in any other case.

(v) Conviction of appellant Kamruddin under Sections

302/149,447,148,324/149 and 323/149 is set

aside and he is acquitted of the said charges. His

conviction under Section 325 IPC however stands

confirmed and he is sentenced to the period

already undergone by him in confinement. He is on

bail, he need not surrender and his bail bonds

stand discharged.

(vi) D.B.Criminal Revision No.188/1999 being devoid

of merit stands dismissed.

(vii) The impugned judgment of the learned trial judge

stands modified as indicated above."

3. The acquittal of Mehboob Khan and Taiyab Khan was,

however, maintained on the plea that the ocular testimony

was not corroborated by the medical evidence. It is in this

Crl. Appeal Nos.82-

83/2005 situation the 7

present set of appeals has been filed by the State as well as by

PW-1 Raghuveer Singh.

4. We have heard Dr. Manish Singhvi, the learned

Additional Advocate General for the State of Rajasthan, Ms.

Aneetha Shenoy, the learned counsel for Raghuveer Singh, as

also Ms. Vibha Dutta Makhija the learned amicus for the

accused respondents. The learned counsel for the appellants

have raised several arguments before us. It has first been

pointed out that there was ample evidence to show that the

incident had happened in the field of Prabhu which had been

mortgaged with Raghuveer Singh and the accused were

therefore the aggressors as they had trespassed into that field

and the finding of a free fight was erroneous, more particularly

as the prosecution case rested on the statements of a large

number of seriously injured eye witnesses. It has been

emphasized that a free fight postulated that both sides had

come to do battle, as held by this Court in Gajanand & Ors.

vs. State of U.P. AIR 1954 SC 695 and Bhanwar Singh &

Ors. vs. State of M.P. (2008) 16 SCC 657 and in the light of

Crl. Appeal Nos.82-

83/2005 the fact that the 8

accused were the aggressors the finding of the High Court was

completely misplaced. It has also been submitted by the

learned counsel that even assuming that there was a free fight

Asuddin, Mauj Khan, Kallu and Rahmat accused were, in any

case, liable for the offence under Section 302 of the IPC as

they had caused injuries to the deceased Girdhari. Ms.

Makhija, the learned counsel for the accused has, however,

supported the judgment of the High Court and has raised a

preliminary argument that the High Court's interference in

such matters was required to be minimal and if the High

Court had taken a view which was possible on the evidence,

interference should not be made. In this connection, the

learned counsel has relied on State of U.P. vs. Banne (2009)

4 SCC 271. She has also submitted that the witnesses had

suppressed the factum of the injuries on the person of the

accused, which meant that the genesis of the incident was

uncertain and an adverse inference was to be drawn on the

prosecution's case. On facts it has been urged that the

observation of the Trial Court that the incident had happened

Crl. Appeal Nos.82-

83/2005 in the field 9

belonging to Prabhu was wrong as there was no evidence to

suggest that it had been mortgaged with Raghuveer and it was

for that reason that during the course of the evidence

Raghuveer Singh had claimed himself to be a lessee on the

land and not a mortgagee which was a clear departure from

his earlier statement. It has also been emphasized that the

above submissions coupled with the fact that the dead body

had not been recovered from the spot but had been found in

the house of the deceased and that no plough or blood had

been picked up from the place of incident clearly revealed that

the incident had not happened in the field in question. It has

also been submitted that the story projected by PW-1 that

Kallu had first knocked Girdhari over with his tractor and

then using the lift of his tractor had raised the cultivator and

then dropped it on his body had not figured in his statement

recorded under Section 161 of the Cr.P.C. and had come up

for the first time in court and thus could not be relied upon. It

has finally been submitted that PW-3 Chottey Lal, one of the

injured witnesses, and the Investigating Officer PW-17

Crl. Appeal Nos.82-

83/2005 Samayadeen had 10

admitted in their evidence that the dispute between the parties

with regard to the land had resulted in a sudden fight between

the two groups and as such the observation of the High Court

was fully justified on the evidence.

5. We first take up Ms. Makhija's preliminary submission

about the scope of interference by this Court in an appeal filed

under Article 136 of the Constitution. As already indicated,

the learned counsel has relied on Banne's case (supra). After

reviewing a large number of judgments of this Court, it has

been observed in paragraph 25 thereof that if the view taken

by the High Court was plausible or possible, it would not be

proper for the Supreme Court to interfere with an order of

acquittal. It has been observed thus:

"Following are some of the circumstances in which

perhaps this Court would be justified in interfering with

the judgment of the High Court, but these are illustrative

not exhaustive:

(i) The High Court's decision is based on totally

erroneous view of law by ignoring the settled

legal position;

(ii) The High Court's conclusion are contrary to

evidence and documents on record;

Crl. Appeal Nos.82-

83/2005 11

(iii)(iii)The entire approach of the High Court in

dealing with the evidence was patently illegal

leading to grave miscarriage of justice.

(iv) The High Court's judgment is manifestly

unjust and unreasonable based on erroneous

law and facts on the record of the case;

(v) This Court must always give proper weight

and consideration to the findings of the High

Court.

(vi) This Court would be extremely reluctant in

interfering with a case when both the

Sessions Court and the High Court have

recorded an order of acquittal."

A perusal of the aforesaid quote in a manner

reduces the scope for interference by this Court. We,

therefore, have to see as to whether this Court should interfere

on the basis of the parameters laid down above. It has firstly

to be borne in mind that the injuries on the accused had not

been explained as the prosecution witness did not utter a

single word as to how they had been suffered by them. In this

view of the matter, the defence can legitimately raise a

suspicion that the genesis of the incident was shrouded in

mystery and the prosecution had suppressed a part of the

proceeding. It is true, as contended by Dr. Manish Singhvi,

that each and every injury on an accused is not required to be

Crl. Appeal Nos.82-

83/2005 explained and 12

more particularly where all the injuries caused to the accused

are simple in nature (as in the present case) and the facts of

the case have to be assessed on the nature of probabilities.

Examining the incident in the light of the above, we find that

the injuries in the present case were required to be explained

as there is a serious dispute as to the possession of the land in

which the incident had happened, more particularly as

Raghuveer Singh himself was uncertain as to the nature of the

possession as per the statements on record and the Patwari

had also warned the complainant party not to trespass into

the land. Undoubtedly, there are a large number of injured

witnesses, some of them grievously hurt, to support the

prosecution case, but in the light of the finding of the High

Court that there was uncertainty about the possession, this

fact by itself cannot preclude the accused from claiming that

no case was made out against them. It has also to be noticed

that PW-3 Chottey Lal, one of the injured witnesses, had

admitted in his cross examination that the quarrel had taken

place suddenly and that the rival groups were both saying that

Crl. Appeal Nos.82-

83/2005 they would sow the 13

land. This plea is also supported by the evidence of PW-17

Samaydeen, the investigating officer, who also admitted that

as per the Patwari, the fight had taken place on the land

possessed freshly and belonging to Gauga and Dallu and that

the land was under the possession of the complainant party.

This statement is at variance with the evidence of the other

witness particularly PW-1 Raghuveer Singh as he stated that

they had been in possession of the land in question for almost

20 years. There is also a doubt as to the site of the incident.

The dead body and the cultivator were recovered from the

house of PW-1, and PW-17 admitted that no blood stained

earth had been lifted from the site. The judgment in Bhanwar

Singh's case (supra) cannot be made applicable as it deals only

with the scope of an offence under Section 149 of the IPC. In

the light of the facts that have been enumerated above, it

would be seen that the observations of the High Court that

both sides had come to do battle appears to be justified as this

is an assessment on an appreciation of the evidence which

cannot be said to be palpably wrong so as to invite the

Crl. Appeal Nos.82-

83/2005 intervention of this 14

Court. The observation in Gajanand's case (supra) that in

order to bring the matter within a free fight both sides have to

come armed and prepared to do battle must be applied in the

present case with the result that each accused would be liable

for his individual act.

6. With this background, we now go to the alternative

argument made by the learned counsel for the appellants i.e.

even accepting the case to be one of a free fight, the four

accused respondents i.e. Kallu, Asuddin, Mauj and Rahmat

ought to have been convicted under Section 302 of the IPC for

having caused the murder of Girdhari. It will be seen that the

allegation projected against Kallu was that he was the tractor

driver who had first knocked Girdhari over, had then driven

the tractor over him, lifted the cultivator and then dropped it

on his person killing him instantaneously whereas the other

three had also caused injuries to Girdhari with their weapons.

We have gone through the evidence on this score very

carefully. The injuries found on the dead body are reproduced

hereinunder:

Crl. Appeal Nos.82-

83/2005 "1. Perforating 15 injury on back

on left side L-L (toom) region deep upto peritoneal cavity

size 12 x 5 cm x deep upto peritoneum also fracture of

9m 10 & 11th rib on posterior side.

2. Abrasion: 4 x 2 cm left side to the injury No.1.

3. Incised wound 5 x 1.5 cm Margins regular on right

parieto frontal region transversely.

4. Incised wound 5 x 1.5 cm on center of head between

both parietal bone longitudinally, margins regular.

5. Lacerated wound: 2 x 1 cm X 0.5 cm in middle of left

medical side.

The injuries were ante mortem in nature and cause of

death was haemorrhage & shock due to injury to spleen

& left kidney by injury No.1."

The injury with the cultivator is injury No.1 which is the fatal

injury and has been attributed by the witnesses to Kallu. Ms.

Makhija has, however, argued that the story that the cultivator

had first been lifted and then dropped on Girdhari could not

be believed as Raghuveer Singh had not mentioned this fact in

his evidence although the other witnesses had done so and as

such, this story was improbable. Even assuming, however,

that the cultivator had not been lifted and then dropped yet we

find that injury No.1 had been caused with a cultivator is clear

from the medical evidence and the extent and gravity of the

injury shows that Kallu had the intention to cause Girdhari's

Crl. Appeal Nos.82-

83/2005 death. It is also 16

clear from the evidence that injury No.1 was sufficient to

cause death in the normal course of nature. The injuries

attributed to the other three accused mentioned herein above

were simple in nature and can, by no stretch of imagination,

be said to have been the cause of death. In the light of the fact

that we are dealing with a case of a free fight, Asuddin, Mauj

and Rahmat must be made responsible for their respective

injuries and Rahmat had, as a matter of fact, died while the

matter was in the High Court. We are, therefore, of the

opinion that in so far as Kallu respondent is concerned, his

conviction under Section 304 Part II of the IPC even on the

findings recorded by the High Court, was erroneous. We,

accordingly, allow these appeals to the extent that Kallu is

held guilty under Section 302 of the IPC for having caused the

murder of Girdhari and we restore the judgment of the Trial

Court to this limited extent. In so far as the other accused are

concerned, the appeals are dismissed.

7. The fee of the Amicus Curiae is fixed at Rs.7,000/- in

each appeal.

Crl. Appeal Nos.82-

83/2005 17

..................................J.

(HARJIT SINGH BEDI)

...................................J.

(GYAN SUDHA MISRA)

29TH AUGUST, 2011

NEW DELHI.