Vishnu & Ors vs State Of Rajasthan

offence punishable under Section 3(1) Scheduled Castes 8

and Scheduled Tribes ((Prevention of Atrocities Act)

1985 is triable by Special Judge, the case was

committed to the Court of Learned Sessions Judge,

Karauli for trial.

4. Necessary charges were framed against the

appellants and others. The charges were read over and

explained to them. The appellants and others did not

plead guilty to the charges. Therefore, several witnesses

were examined by the prosecution and documents were

also produced in support of its case against the

appellants and others. After recording of evidence of

prosecution witnesses was over, the Learned Judge

explained to the appellants and others, the

circumstances appearing against them in the evidence

of the prosecution witnesses and recorded their further

statements as required by Section 313 of the Code of

Criminal Procedure 1973. In the further statements the

case of the appellants was that they had not committed

the offences alleged but were falsely implicated in the

case, because of enmity between the parties relating to

the land. The appellant No. 4 herein i.e. Kanta Prasad 9

pleaded alibi and claimed that on the date of the

incident, he was in college at Karauli. The appellant No.

3 herein i.e. Brahma Nand also pleaded alibi by stating

that on the date of incident, he was on his duty,

whereas accused Kanhaiya Lal stated that he was

unable to move and did not participate in the incident.

On behalf of the appellants, witness Horilal was

examined as D.W. No. 1.

5. On appreciation of evidence adduced by the

parties, the Learned Sessions Judge concluded that it

was proved by the prosecution beyond pale of doubt

that deceased Sukh Lal died a homicidal death. The

Learned Judge thereafter noticed the testimony

tendered by the injured eye witnesses and held that the

appellants with others had formed an unlawful

assembly, common intention of which was to commit

murder of Sukh Lal and to cause injuries to Babu Lal

i.e. first informant, his father Harmukh, Raj Bai, Birma

Bai and in furtherance of the said common intention

had armed themselves with deadly weapons like axes

etc. and sticks. The Learned Judge concluded that it 10

was proved beyond reasonable doubt that the appellants

and others had assaulted Sukh Lal and committed his

murder in furtherance of their common intention. It

was further held that the appellants and another had

assaulted Harmukh, Babu Lal, Raj Bai, Birma Bai and

caused grievous as well as simple injuries on them in

furtherance of their common intention. The learned

Judge concluded that neither the presence of accused

Kanhaiya Lal, at the place of occurrence nor his

participation in the incident was proved by the

prosecution. In view of the above mentioned

conclusions, the Learned Sessions Judge convicted the

appellants and Lata under Sections 302 r/w 149, 325

r/w 149, 323 r/w 149 and 147 IPC but acquitted

accused Kanhaiya Lal. The Learned Judge also

convicted the appellant Vishnu and appellant Kanta

under Section 148 and 147 IPC respectively. After

hearing the appellants and Lata , the Learned Judge

sentenced them to life imprisonment for commission of

offence punishable under Section 302 r/w 149 as well

as fine of Rs. 200 in default simple imprisonment for a 11

period of two months, rigorous imprisonment for one

year and fine of Rs. 200 in default simple imprisonment

for two months for offence under Section 325 r/w 149,

rigorous imprisonment for three months for the offence

punishable under Section 323 r/w 149 and rigorous

imprisonment for six months for commission of offence

u/s. 147 I.P.C. The appellant Vishnu and appellant

Kanta were also sentenced to undergo Rigorous

Imprisonment for one year for commission of the offence

punishable under Section 148.

6. Feeling aggrieved, the appellants and Lata

preferred D.B. Criminal Appeal No. 359 of 1998 before

High Court of Judicature of Rajasthan at Jaipur Bench,

Jaipur. The Division Bench of the High Court has

dismissed the appeal filed by the appellants but allowed

that of Lata Bai i.e. original accused No.6 by Judgment

dated August 3, 2005 giving rise to the instant appeal.

7. This Court has heard the Learned Counsel for the

parties at length and in great detail. This Court had

also considered the testimony tendered by the witnesses 12

as well as documents produced on the record of the

case.

8. The fact that deceased Sukh Lal died a homicidal

death is not disputed by the appellants before this

Court at all. The injuries sustained by Sukh Lal are

noted in the inquest report. The autopsy on the dead

body of the deceased was performed by Dr. Hari Mohan

Meena who was examined as prosecution witness No.

19. In his substantive evidence before the Court, the

Medical Officer has enumerated the injuries noticed by

him on the dead body of the deceased while performing

post mortem. The injuries stated by the Medical Officer

have also been mentioned in the contemporaneous

record namely post mortem notes produced at exhibit P-

38. It is nobody's case that deceased Sukh Lal died

either because of self inflicted injuries or because of

accidental injuries or he died a natural death. On the

facts and in the circumstances of the case, this Court is

of the view that the Sessions Court and High Court were

justified in concluding that it was proved by the 13

prosecution beyond reasonable doubt that deceased

Sukh Lal died a homicidal death.

9. The evidence of Dr. Hari Mohan Meena further

shows that on August 29, 1995 he had examined first

informant Babu Lal at about 10.00 P.M. and found that

he had sustained six injuries. On the same day he had

also examined Har Mukh who is father of the informant

at 7.30 P.M. and found that he had sustained five

injuries out of which one was found to be grievous. The

evidence of the said Medical Officer would disclose that

he had also examined Smt. Sua Bai and found that she

had sustained two injuries whereas medical

examination of Birma Bai revealed that she had

sustained four injuries. The evidence of the Medical

Officer also shows that he had examined Raj Bai and

found four injuries on her person. The testimony of Dr.

Nandlal Sharma P.W. 18, shows that on the request of

Deputy Superintendent of Police, a Medical Board was

constituted by Chief Medical and Health Officer,

Karauli. His evidence further indicates that he was

heading the Board so constituted whereas Dr. Makkhan 14

Lal Kawat and Dr. Hukam Chand Gard were its other

members. His evidence establishes that The Members

of the Board had examined injured and Smt. Birma Bai

at 12.10 P.M. and injured Sua Bai at 12.30 P.M. On the

same day, X-ray of Sua Bai was also taken but it was

found that she had not sustained any grievous injury.

The evidence of Dr. Sharma further shows that on the

same day, Raj Bai was examined at 11.00 A.M. by the

Members of the Board and she was found to have

sustained six injuries which were caused by blunt

weapons and were caused within the duration of three

to four days. Her X-ray was also taken but the same

did not indicate that she had sustained grievous injury.

On the same day at about 1.00 in the after noon, the

Members of the Board had examined Har Mukh who

was found to have sustained five injuries caused by

blunt weapon and were of the duration of three to four

days. On examination of his X-ray, it was found that 7th

to 10th ribs on the right side of his body were fractured.

On the same day the Members of the Board had also

examined the first informant Babu Lal and found that 15

he had sustained five injuries on his person. However,

it was also noticed that he had not received any

grievous injury. During the cross-examination of Dr.

Sharma it was brought by the defence on the record of

the case that the injuries sustained by first informant

Babu Lal could have been received by him on August

28, 1995. The Medical Officer opined that the injuries

could have been caused to the injured witnesses

examined by the Board within three to four days. Thus,

the testimony of Dr. Hari Mohan Meena stands amply

corroborated by the testimony of Dr. Nand Lal Sharma

regarding injuries sustained by the deceased and the

injured witnesses.

10. The contention that several complaints were given

which were conflicting with each other regarding time

and place of occurrence and as the prosecution story

was manipulated the appellants should be acquitted

has no substance. In the present case, the reliable

evidence of first informant Babu Lal makes it more than

clear that the incident in question had taken place on

August 28, 1995. Though the evidence of complainant 16

Babu Lal shows that his brother Ram Khiladi who had

managed to escape from the village had reached house

of his uncle and scribed one FIR, the record does not

indicate that any endeavour whatsoever was made by

Ram Khiladi to lodge the same with the Police Station.

It may be mentioned that village Golara is a small village

and incident relating to the death of one person of

village and injuries to several must have caused

sensation as well as anxiety in the minds of villagers

residing in the village. Therefore, some of the villagers

had also given vague information relating to the incident

in question. However, having regard to the facts of the

case this Court is of the firm opinion that Babu Lal had

got his FIR scribed from witness Prahlad who is

examined as PW-13 on August 28, 1995 but the same

was lodged on August 29, 1995 because the incident

had taken place at about 7.30 P.M. on August 28, 1995

and it was too late to go to the Police Station for the

purpose of lodging complaint. Witness Prahlad

examined as PW-13 fully supports the claim of the first

informant Babu Lal. He has in no uncertain terms 17

mentioned before the Court that at the instance of Babu

Lal, he had reduced the FIR into writing. The evidence

of first informant Babu Lal read with that of witness

Prahlad would show that Babu Lal was scared because

of the incident in question and he could not muster

courage to lodge the complaint on the date of incident.

Mangati Ram examined as prosecution witness No. 22

has stated that on August 29, 1995 he was serving as

Constable at Masalpur Police Station and that four

persons had come to the Police Station and told S.H.O.

that one person had been killed and others were injured

in village Golara. The testimony of said witness further

shows that on the said information being conveyed, he

alongwith S.H.O. and three to four persons had reached

the spot and had recorded certain proceedings. He has

further stated that written report about the incident in

question was handed over to him for registration in the

Police Station and that he had handed over the same to

the Office-In-Charge of Masalpur Police Station for

registration of the offences. Thus the testimony of first

informant Babu Lal and that of witness Prahlad gets 18

complete corroboration from the testimony of Constable

Mangati Ram, examined as prosecution witness No.22.

It is wholly irrelevant whether the FIR got prepared by

first informant Babu Lal was lodged at the Police Station

when Babu Lal is stated to have gone there or the report

already written on August 28, 1995 was handed over to

the Police on its arrival at the place of incident. What

cannot be ignored by the Court is that this is a case

wherein at least five persons were injured. Those five

injured persons are closely related to the deceased.

When a person receives injuries in the course of

occurrence, there can be hardly any doubt regarding his

presence at the spot. Further, injured witnesses would

not spare the real assailants and falsely involve

innocent persons. The testimony of injured witnesses

which has inspired confidence of Learned Sessions

Judge who had advantage of observing the demeanor of

the witnesses and accepted by the High Court on re-

appreciation of evidence, unerringly proves that the

incident in question had taken place on August 28,

1995, wherein Sukh Lal lost his life and at least five of 19

his close relatives were injured. Merely because the

incident had taken place on August 28, 1995, but FIR

was handed over to the Police on the next day, would

not in any manner go to show that no incident had

taken place at all and that because of manipulations the

appellants were falsely involved in the case.

11. The argument that those who were injured had got

admitted in the hospital on August 29, 1995 but none of

them had reported the incident to the Police Station

during the night of August 28, 1995, and therefore the

prosecution case should be disbelieved is devoid of

merits. The very examination of the injuries sustained

by the injured witnesses almost after 24 hours would

not indicate in any manner as suggested by the defence

that as a matter of fact the occurrence had taken place

somewhere between 8.00 and 9.00 A.M. in the morning

of August 29, 1995. It is for this precise reason that Dr.

Meena who had initially examined the injured

witnesses, stated that the duration of the injuries

sustained by the injured was between 7 to 17 hours.

The information given by Medical Board, specially 20

constituted to examine the injured perfectly

synchronizes with the time of injuries mentioned by the

injured witnesses. It is true that none of the injured

had gone to the Police Station in the night of August 28,

1995 to lodge the complaint. However, as noticed

earlier, the dead body of deceased Sukh Lal was lying in

the house and therefore it is but natural that the

injured would like to be by the side of the dead body of

the deceased. Therefore, non filing of complaint on the

same day, by any of them would not exhibit unnatural

conduct on their part so as to give benefit of doubt to

the appellants. This Court further notices that

deceased Sukh Lal had expired on August 28, 1995

itself and the post mortem on his dead body was

conducted at 12.45 P.M. on August 29, 1995. As per

the post mortem report his death had occurred within

18 hours which supports the claim made by the first

informant and others that Sukh Lal had expired on

August 28, 1995 in the incident which took place at

about 7.00 P.M. The medical evidence on record is

absolutely in tune with the prosecution version in so far 21

as time and date of occurrence is concerned. There is

no dispute that Sukh Lal was not taken to the hospital

immediately on receipt of injuries by him because he

was dead and the other injured witnesses were

examined medically only on August 29, 1995. The

injured witnesses were subjected to searching cross-

examination by the defence but this Court finds that not

a single question was put to any of the injured

witnesses as to why he had not taken medical treatment

immediately or shortly after receipt of injuries by him.

Only Birma Bai stated in her evidence that the injured

had gone to the hospital in jeep. However, in cross-

examination she made herself very clear by stating that

they had gone to the hospital next day after cremation

of Sukh Lal was over.

12. Based on age of injuries mentioned in injury

certificate produced at Exhibit P-8 relating to the

injuries sustained by first informant Babu Lal and age

of injuries mentioned in injury certificate produced at

Exhibit P-13 which relates to the injuries sustained by

Harmukh, it was argued that the incident in question 22

did not take place at the time stated by the witnesses

and therefore, prosecution case ought to have been

disbelieved. It is true that, Dr. Hari Mohan Meena had

stated that he had examined injured Babu Lal on

August 29, 1995 at 8.10 P.M. and in the injury

certificate Exhibit P-8, the age of injuries was mentioned

to be 12 hours. It was further stated by him that on

August 29, 1995, he had examined injured Harmukh at

7.30 P.M. and in his injury certificate produced at

Exhibit P-13, it was mentioned that the age of injuries

was 7 hours. However, an explanation was sought from

the said witness during his cross-examination regarding

age of the injuries and it was explained by him that he

could not mention correct opinion about the age of

injuries in the certificates because he was all alone and

there was no light. According to him, he was also not

well and confused and therefore correct opinion about

the age of injuries could not be mentioned and on

realizing the mistake committed by him, on the next day

i.e. on August 30, 1995 he had informed S.H.O. as well

as C.M. and H.O. of the hospital after making correction 23

about the age of the injuries in the office copies of the

injury certificates. The testimony of this witness is

accepted by the Learned Judge of the Trial Court who

had obvious advantage of observing demeanor of the

witnesses and also by the High Court, on re-

appreciation of evidence. No convincing reason could be

pointed out by the learned counsel for the appellants as

to why explanation offered by Dr. Meena regarding

mention of incorrect age of injuries in the injury

certificates should not be accepted by this Court.

Therefore, the argument based on age of injuries stated

in injury certificates, has no substance and is rejected.

As observed earlier, in the present case Medical Board

consisting of three doctors, on re-examination of the

injuries of the witnesses, unanimously gave opinion

about the age of the injuries sustained by the witnesses

which is not even disputed. What is relevant to notice is

that no question was put to any of the two doctors

examined from the panel of the Medical Board specially

constituted, relating to the duration of injuries

mentioned by them. There is nothing on the record to 24

disbelieve the testimony of the two doctors and come to

the conclusion that the duration of injuries mentioned

by them was not correct. It is well to remember that

except one of the injured witnesses, others had received

simple injuries and therefore there was nothing wrong if

the injured witnesses had got themselves admitted in

the hospital on August 29, 1995 after cremation of

Sukh Lal. The plea based on incorrect age of injuries

mentioned in the two certificates has no merits and is

therefore, rejected.

13. The plea that the provisions of Section 149 would

not be attracted to the facts of the case and therefore

the appellants who had not played overt act in causing

injury to deceased Sukh Lal could not have been

convicted under Section 302 with the aid of Section 149

has no substance. Section 149 of the Penal Code

provides for vicarious liability. If an offence is

committed by any member of an unlawful assembly in

prosecution of a common object thereof or such as the

members of that assembly knew that the offence to be

likely to be committed in prosecution of that object, 25

every person who at the time of committing that offence

was member would be guilty of the offence committed.

The common object my be commission of one offence

while there may be likelihood of commission of yet

another offence, the knowledge whereof is capable of

being safely attributable to the members of the unlawful

assembly. Whether a member of such unlawful

assembly was aware as regards likelihood of

commission of another offence or not would depend

upon the facts and circumstances of each case.

Background of the incident, the motive, the nature of

the assembly, the nature of the arms carried by the

members of the assembly, their common object and the

behavior of the members soon before, at or after the

actual commission of the crime would be relevant

factors for drawing an inference in that behalf. The

record unmistakenly indicates that accused Lata who is

now acquitted by the High Court, had gone to the place

where the first informant and his relatives were

watching sport event, to inform appellant Bhanwar Lal

and others that Jatavas were plying tractor in the 26

disputed land. The evidence of complainant shows that

moment the said information was conveyed by Lata,

Kanhaiya Lal i.e. father of appellant Bhanwar Lal had

loudly shouted that where all their people had gone,

upon which Babu Devta, Mahesh, Brahma Nand, Kanta,

Vishnu, Din Dayal, Kailash, Bhagwan Lal, Bhanwar Lal,

Lata etc. had armed themselves with different weapons

including axes and started proceeding towards the

disputed land. The appellants were knowing fully well

that the land was allotted to Jatavas and they were

entitled to cultivate the same, but with a view to

preventing them from cultivating the land, the

appellants with others had gone to the disputed land

with weapons and started attacking the first informant

and his relatives. Having regard to the definition of the

word `unlawful assembly' as given in Section 141 I.P.C.

there is no manner of doubt that the appellants were

members of unlawful assembly, common intention of

which was to mount attack and cause injuries to

Jatavas. The evidence of the informant proves that first

of all he was assaulted after which his wife was 27

assaulted and thereafter his brother Ram Khiladi was

assaulted. His evidence further establishes that his

father Harmukh, his mother Sua Bai, his wife Birma Bai

were also assaulted by the appellants and others. His

evidence further shows that deceased Sukh Lal with his

wife was running towards house to save himself but the

appellants had chased him and after overtaking him,

delivered blows with dangerous weapons and sticks as a

result of which he lost his life on the spot. The

appellants and others who had come in a group had left

the place of incident together. The cumulative effect of

the circumstances proved by the prosecution is such is

that the intention of the unlawful assembly was to

cause death of Sukh Lal and to cause injuries to the

injured witnesses. Thus the conviction of the appellants

under Section 302 r/w 149 cannot be said to be

erroneous at all and no ground is made out to interfere

with the same in the instant appeal. For the foregoing

reasons the appeal fails and is dismissed. 28

14. As the appeal is dismissed, the two applications for

bail do not survive. Hence they stand accordingly

disposed of.

......................................J. (Harjit Singh Bedi)

......................................J. (J.M. Panchal) New Delhi;

September 15, 2009