Judgment:
Amaresh Ku. Singh, J.
1. Heard the learned Counsel for the appellants and the learned Public Prosecutor and perused the record of the case.
2. Both these appeals have been filed against the judgment delivered by the learned Additional Sessions Judge No. 1, Jodhpur on 15.3.1977 is Sessions CaseNo.23/1976 : State v. Bhalla Ram and Anr. whereby the appellants were convicted under Sections 302, 323 and 447 I.P.C. and sentenced to life imprisonment under Section 302, 4 months rigorous imprisonment under Section 323 and rigorous imprisonment for 2 months under Section 447 I.P.C. Since both these appeals have been filed against the same judgment, therefore both of them deserve to be decided together.
3. The appellants, Bhalla Ram and Binjaram were tried by the learned Additional Sessions Judge No. 1, Jodhpur for offences punishable under Sections 302, 323, 379 and 447 I.P.C. They were acquitted of the charge punishable under Section 379 I.P.C. but they were convicted under Sections 302, 323 and 447 I.P.C. and sentenced to life imprisonment, rigorous imprisonment for 4 months and rigorous imprisonment for two months respectively under the above-mentioned sections.
4. The prosecution case as unfolded by the first information report Ex.P.2 lodged by Bhoma Ram at police Station, Dechu on 14.6.1975 at 11.30 A.M. is to be effect that towards the South West of the road that leads to Solankiyatala, there is a field bearing Khasra No. 226 belonging to Bhoma and his brothers, namely, Dharu, Moda and Rawta. According to the first information report on 14.6.1975 the appellants Binjaram and Bhallaram went to the field of the complainant and started culivating the same. At about 11.30 A.M. Complainant's elder brother Rawtaram went to the field with a camel in order to cultivate the field. When he found the appellants he tried to persuade them not to cultivate. The appellant Binjaram was armed with a lathi and Bhallaram was armed with a Bei. The appellants started inflicting injuries on Rawtaram with lathi and being which they possessed. In order to save himself Rawtaram tried to run away from the place of occurrence, at that time complainant's wife Mst. Gawari who was at that time coming to village from complainant's Dhani, in order to bring water, tried to protect Rawtaram by intervening between him and the appellants. The appellants then inflicted injuries on Rawtaram with lathi and being and as a result of these injuries Rawtaram died. Bhallaram is alleged to have inflicted injuries on Rawtaram and Smt. Gawari with Bei, whereas Binjaram inflicted injuries to Rawtaram with lathi. As a consequence of the blows given by the appellants Smt. Gawari received serious injuries and her intestines were exposed and her condition became serious. It was further alleged in the first information report that at the time of incident the complainant's brothers Modaram and Dharu Ram and complainant's sister-in-law namely Smt. Sayari wife of Tilaram and wife of Gularam have witnesses the occurrence and when Gularam's wife tried to intervene the appellants tried to snatch her Timania but she protected herself by running away. It was further stated in the first information report that after the incident the complainant and his brothers Modaram and Dharuram after placing Smt. Gawri on a cot tried to take her to the village but the appellants threatened to kill them and attacked and inflicted injuries with lathi and Bei. As a consequence the complainant and his brothers rushed towards the village. Meanwhile Sampatlal, Babulal and some others intervened and saved the complainant and his brothers. It was further stated in the first Information report that the appellant Binjaram concealed the lathi in the complainant's field and thereafter the appellants took away the camel of 'the complainant as well as crop of Danjeera costing about 1500/- and plough 'tagar' with them. On the basis of the first information report given by Bhomaram the police registered a case under Sections 302, 307, 323, 447 and 379 I.P.C.
5. After investigation a report under Section 173 Cr.P.C. was submitted in the court of Munsif and Judicial Magistrate, First Class, Jodhpur District, Jodhpur who in turn committed the case to the court of District and Sessions Judge, Jodhpur. The learned District and Sessions Judge Jodhpur vide order dated 13.4.1976 made over the case to the learned Additional District and Sessions Judge No. 1, Jodhpur who conducted the trial of the appellants and convicted and sentenced them as mentioned above.
6. Learned Counsel for the appellants has submitted that the findings as well as judgment of conviction and sentence delivered by the learned Additional Sessions Judge No. l, Jodhpur are not maintainable because the evidence produced by the prosecution on which the reliance has been placed, is not reliable and the charges brought against the appellants have not been proved beyond all reasonable doubt.
7. During the trial the prosecution has examined as many as 27 witnesses. The appellants were also examined under Section 313 Cr.P.C. 3 witnesses were examined by the appellants in their defence.
8. It is not disputed that Rawtaram and Smt. Gawri wife of Bhomaram were died on account of the injuries which were found on their bodies by the Doctor who conducted the post-mortem examination. Dr. Sohan Singh P.W.23 who was posted as Medical Officer Incharge, Primary Health Center, Balesar went to village Somesar on 15.6.1975 at 3.40 P.M. on requisition of the Station House Officer, Police Station, Dechu for conducting the post-mortem examination of the dead bodies of Rawtaram and Smt Gawri. The dead bodies were identified by Dharu Ram brother of late Rawtaram. On conducting the post-mortem examination of the dead body of Rawtaram, Dr. Sohan Singh P.W. 23 found that there was bleeding from both nostrils, mouth and left ear (dried) and there was bruise on the left side of upper face and head with swelling of the size 3' x 2' bougy in nature extending about 1' above the left ear and the left eye of the deceased was bulzing and the swelling was depressed in nature over side of the right face. On opening the body he found that there was a commuted depressed fracture of the left upper part of the maxillary temporal and frontal bones about 11/2 cm. from the left eye with lacerations of the brai (frontal lobe) and inter-cerebral haemorrhage. The laceration was of the size of 3' x 1/3'. The membrance was congested and ruptured at the site of the injury, and there was subconjectival haemorrhage as well as subcutaneous haemorrhage under the bruise of the right side of the head and in the stomach partially digested food particles were present. Dr. Sohan Singh P.W. 23 prepared the post-mortem report Ex.P. 38 and opined that the cause of death of Rawtaram was the blunt injury on his head which caused cerebral lacerations, haemorrhage, coma and death, and all the injuries were ante mortem in nature and the duration was between 18 to 20 hours and the single injury which was found on the head of Rawta Ram was sufficient in the ordinary course of nature to cause death and it could have been caused with a lathi like lathi Article 1 which was shown to the witness during the examination.
9. Dr. Sohan Singh P.W. 23 also conducted the postmortem examination of the dead body of Smt. Gawri wife of Bhomaram on 15.6.1975 at 6. P.M. He found that the body was in the early stage of decomposition and there was a punctured wound of 2 cm. in diameter on the right upper abdomen (right hypo-chonbrium) 3 cm. below the costal margins, on the right side going upto the posterior center aspect of the duedenum puncturing the duedenum and the loops of intervening small intestines. Greater omentum with a loop of small intestine was protruding out of the wound with A-F dressing on the wound and there was a bruise over the right side of the temporal part of the head measuring 2 cm. x 1 cm. On opening the body he found the bruise over the temporal part of the head 3' away from the ear (tip of the ear) measuring 2 c.m. x 1 c.m. There was subcutaneous haemorrhage but no bony injury was detected. On opening the abdomen he found that punctured wound of the right hypochondrium was 2 c.m. in diameter puncturing the postero lateral aspect of the duedenum and small intestines at several places and greater omentum alongwith a loop of small intestine was protruding out of the wound. About 3 1/2 ltrs. of dark coloured fluid blood was found in the abdomen cavity and early signs of peritonitis were present, and in the stomach there was partially digested food. Post-mortem report Ex.P.39 has been proved by Dr. Sohan Singh P.W. 23 and opined that Smt. Gawri died on account of penetrating injury of the right hypochondrium, which caused intra-abdomenal haemorrhage, shock and death and that the injuries of Smt. Gawri were ante mortem in nature and the duration of death was about 12 hours before the conduct of the post-mortem examination and the injuries of Smt. Gawri were in the absence of proper treatment sufficient to cause her death and the penetrating injury found could have been caused by an instrument like bei Article 4 which was shown to the witnesses during his examination in court. The duration of injuries has not been mentioned by the witness. Only the duration of death before conducting the post-mortem examination has been given. The testimony of Dr. Sohan Singh P.W.23 establishes beyond all reasonable doubt that the death of Rawtaram and Smt. Gawri wa unnatural and it was on account of the injuries found on their bodies and the injuries were in the opinion of Dr. Sohan Singh P.W. 23 were sufficient in the ordinary course of nature to cause death. We have no doubt that these injuries were homicidal in nature and they could not have been caused accidentally nor they could have been suicidal.
10. The prosecution case is that the lathi injuries were inflicted by Binjaram and bei injuries were inflicted by Bhallaram. The injuries found on the head of Rawtaram was according to Dr. Sohan Singh P.W. 23 caused by blunt weapon like Lathi Article 3 and the fatal injury by which the penetrating wound on the abdomen of Smt. Gawri was caused by an instrument like bei Article 4. The appellant Binjaram is, thus, alleged to have inflicted the fatal blow to Rawtaram and caused simple hurt to Dharuram and Bhomaram, and Bhallaram is alleged to have inflicted the fatal blow to Smt. Gawri and caused simple hurt to Dharuram and Bhomaram. The cause of the incident according to the prosecution was that the appellants intended to forcibly cultivate the field bearing Khasra No. 226 which belong to Bhomaram and his brothers and when Rawtaram tried to dissuade the appellants from cultivating the said field, the appellants started inflicting injuries on him and to save himself Rawtaram tried to run away and when Smt. Gawri intervened she was also given blows by the appellants and one of the blows which was on her abdomen caused penetrating wound which proved fatal. The prosecution produced Bhomaram P.W.1. who lodged the first information report Ex.P.2, Dharuram P.W.2, Modaram P.W.3, Bhika P.W.5, Smt. Sara P.W.6, Smt. Rukma P.W.7, Babulal P.W.8, Sampatlal P.W.9, Bakhtawarmal P.W. 10, Poonaram P.W.11, as the alleged eye-witnesses of the incident. Out of these 10 witnesses Smt. Rukma P.W. 7, Bakhtawarmal P.W. 10 and Poonaram P.W. 11 have turned hostile. Bhoma P.W.I, Dharuram P.W.2, Modaram P.W.3, Smt. Sara P.W.6, Babulal P.W. 8 and Sampatlal P.W.9 are material witnesses and they have supported the prosecution case. It would be useful to give a summary of their statements.
11. Bhoma P.W.1 has supported the prosecution story. According to him, on the date of occurrence the accused went to the field bearing Khasra No. 226 with the object of cultivating the same. The information about this was given to Bhoma by children. On receiving the information Rawta said that one person should be sent to call Kumaram, father of the accused and he further said that Kumaram should be asked to bring 4 persons belonging to him and we would also call 4 persons of our side and they would go to the Mukhiya for the purpose of arriving at a decision by him. Bhoma P.W.I added that he went to Babulal, Rewatsingh and Bhojraj Singh but they were not available. Later on he stated that Rewat Singh and Babulal were available but Bhojraj Singh was not available and he brought Babulal and Rewat Singh with him and before he could reach the field, he heard that a 'Marpeet' had taken place. Thereafter he alone went to the field and saw that Bhalla Ram had a bei in his hand and Binjaram was armed with Gedi and axe. At that time Rawta was going to the field on a camel. He asked the accused persons not to cultivate the field and then the accused persons ran away after Rawta and attacked him. According to Bhoma P.W. 1 at that time his wife intervened and at that time Binjaram inflicted a lathi blow on her head and accused Bhalla inflicted injuries on her with bei. Consequently she fell down and Bhalla inflicted another blow with much force as a consequence of which her intestines protruded and Binja gave a lathi blow on the head of Rawta and second lathi blow was inflicted on the temple, when Rawta was trying to put in the intestines of his wife (Smt. Gawri), Bhoma P.W.I has added that when an alarm was raised he as well as Modiya and Dharu reached the spot and that he had witnessed the occurrence from a distance of 1 to 2 pawdas; that the wounds of Rawta and Smt. Gawri were bleeding and some blood fell on the ground. He has added that wife of Tila also came to the scene of occurrence and asked the accused persons not to assault and this incident was witnessed by the wife of Gula Bheel also. It is also stated by Bhoma P.W.I that after committing assault the accused persons ran away with camel and other goods and thereafter Rawta was taken to village. A cot was also brought from the house of Tila and by placing Gawri on the cot she was taken towards the house of Tila. At that time the accused persons were present in their father's house and at that time the accused persons came out of the house by saying that since they had assaulted, they would be arrested by the Raj and, therefore there was no sense in releasing the complainant party. According to Bhoma Binja then inflicted a blow behind his ear with the gedi and in consequence the cot which was being carried by the witness fell on the ground and fearing that the accused persons would kill Dharu and Moda. The witness asked them to run away to save their lives. But Bhalla obstructed Dharu and inflicted injuries on the body of Dharu with bei and Moda some how succeeded in escaping. Bhoma P.W.I has added that he was chased by Binja and while he was being chased he collided with a stone and fell on the ground and at that time Binja inflicted lathi blow on him but he saved himself by raising his hands. Meanwhile Poonaram Suthar, Bhagaram Mahajan and Sampat Lal Mahajan came from the village and they appealed to the accused persons not to commit assault but the accused threatened to beat them. Thereafter the accused went away. It is further stated by him that Gawri was taken to the hospital but Rawa died on the spot. The injuries of Gawri were seen by the Doctor and at mid night Smt. Gawri breathed his last. Gawri had a child and that child also died. Bhoma Ram P.W. 1 has added that he gave the F.I.R. Ex.P.2 at the police station orally. It was scribed there and his thumb impression was obtained by the police. To prove that he was in possession of the field Khasra No. 226 Bhoma Ram has submitted the pass-book Ex.P. 1. It is also stated by him that the police officer prepared the site-plan and other papers and affixed his thumb impression on them. Regarding the delay in lodging the first information report Bhoma Ram P.W.I has stated that since he had to take his wife Smt. Gawri to the Hospital as she was bleeding, the first information report was delayed and that he reached the police station at night with a constable to accompany him from Setrawa.
12. Dharu Ram P.W.2 has supported the prosecution story by saying that he was in possession of the field and the accused persons wanted to occupy the field by force and that information that the accused went to the field to cultivate it was given by the boys who were attending the she goats and that Rawta and Bhoma reached the scene of occurrence from the village and he himself went to call the Mukhiya. It is further stated by this witness that he Went to call Kuma, father of Bhalia and asked him to persuade his sons not to cultivate the field by force and on hearing this Kuma asked that Panchas be called. Dharu P.W.2 has added that he went to call the panchas and brought them to Kuma but thereafter Kuma refused to go to the field on the pretext that he was unwell. Hence he returned to the field and saw that Rawta was given a blow by Binja with a lathi on this right side of the head and another lathi blow was given on his temple and as a consequence blood came out of the head and spread over the clothes of Rawta and Bhalia inflicted blows with bei on Gawri and in consequence her intestines protruded. It is further stated by Dharu Ram that when he and Moda taking Rawta to the Doctor the accused stopped them. At that time they inflicted a lathi blow to Bhoma and the body of Gawri was also thrown on the ground as the accused again attacked and inflicted blows with lathi and bei and that the accused persons took away the camel and other goods. It is also stated by Dharu Ram P.W.2 that the dead bodies remained lying at the house of Tila for 3 days and thereafter the police officer came and Rawta died on the date of occurrence whereas Gawri expired on the next day. It is also stated by him that the incident was witnessed by Smt. Sara (P.W. 6) wife of Tila and Rukma wife of Gula and that in the incident only 3 persons he, Rawta and Gawri sustained injuries. In his cross-examination he has stated that the police officer had come at night after 2-3 days.
13. Moda Ram P.W.3 has supported the prosecution story and substantially gave a version similar to Dharu P.W.2.
14. Smt. Sara P.W.6 is the wife of Tilaram. She has supported the prosecution story by saying that at about 10 to 11 the accused persons went to the field with plough in order to cultivate the field arid at that time she heard the hue and cry and then she rushed to the field and saw the accused there. Binja had a lathi and Bhalla had a bei with him and Dharu, Bhoma, Moda, Rawta, Binja Bheriya and Bhaliya were also present and Gawri was carrying water. At that time Binja inflicted 2 injuries with Soti on Gawri and as a consequence Gawri fell down and thereafter Bhalla thrust a bei in her stomach and as a consequence her intestines came out. Thereafter Rawta tried to push her intestines back which had protruded and Binja inflicted blows to Rawta Ram with a stick. The first blow landed on his head and eye and as a consequence blood came out from the mouth and nose of Rawta. She has further added that the accused took way one camel and some other goods including tager and when Gawri was being taken on a cot and Rawta was taken towards Neemda the accused again came out and attacked. At that time Moda escaped by running towards the village and Dharu was given blows by the accused Bhalla with bei and Binja inflicted blows on Bhomla with stick and thereafter Bhomla struck against a stone and fell down. It is also stated by this witness that Gawri was not cured by taking to the hospital and she expired on the second day in the morning and Rawta expired on the date of occurrence within a span of 1 to 2 hours.
15. Smt. Rukma P.W.7 has turned hostile, she was confronted with her police statement Ex. P. 12 and she denied that statement. According to her at the time of alleged occurrence she did not go with her chattle and she did not see any occurrence.
16. Sampat Lal P.W.9 has deposed that at about 8 to 9 A.M. when he was standing in front of his house, Modaram came running and cried 'Mare Re Mare Re'. Then he went towards the house of Meghwals. At that time Bakhtawarmal, Poona were also with him and when he reached near the houses of Meghwals he saw that the accused Bhaliya and Binja came running. One of them was armed with gedi and the other was armed with bei and when he asked them as to why they were fighting they ran away. It is also stated by Sampatlal P.W.9 at that time Gawri was lying on a cot at the house of Kumbha and Rawta was lying near the Neemda and Harka was sitting by side.
17. Bakhtawarmal P.W. 10 is not an eye-witness of the incident. He has turned hostile and he has denied the police statement Ex.P.30.
18. Poonaram P.W. 11 has also turned hostile and he did not give the police statement Ex.P.31.
19. The summary of the prosecution witnesses who were present at the time of the incident has been given above. The statement of Bhoma P.W.1 has been substantially supported by Dharu P.W.2 and Moda P.W.3. Smt. Sara has also supported the prosecution case and indicated the accused persons. The statement of Sampat Lal P.W.3 supports the prosecution version to the effect that the accused persons chased Moda Ram and at that time the accused were armed with lathi and being and that the body of Rawta was taken to Neemda and Smt. Gawri in an injured condition was taken to the house of Kumbha. The evidence of Dr. Sohan Singh P.W.23 as pointed out earlier proves beyond reasonable doubt that the injuries found on the dead bodies of Rawta and Gawri were ante mortem. They were sufficient in the ordinary course of nature to cause death and that their death was homicidal.
20. The learned Sessions Judge has substantially believed the prosecution story about the alleged trespass by the accused in the field of complainant party, causing of simple injuries by the accused to Dharu and Bhoma and the murder of Rawta and Smt. Gawri.
21. The accused appellants in their statements under Section 313 Cr.P.C. denied all the circumstances appearing in the evidence against them. They attributed enmity to the prosecution witnesses and asserted that on account of enmity they have been falsely implicated. Both the appellants in their statements under Section 313 Cr.P.C. alleged that Rawta and Smt. Gawri had illicit relations between them and on 13.6.1975 at about 4 P.M. the children saw both of them in compromising position and an alarm was raised and on hearing the alarm Bhoma, Dharu and Moda rushed to the spot. The appellants further stated that they as well as Hukam Singh, Hamir Singh, Kalusingh, Bhura Ram, Panna Ram, Birdaram and Suraj Ram also reached there and at that time Bhoma inflicted a halwani blow on the stomach of Smt. Gawri and Dharu inflicted a lathi blow on Rawta and in sequence of these injuries both of them died. Hukam Singh D.W. 1, Panna Ram D.W.2 and Birda Ram D.W.3 have been examined by the accused appellants to prove the defence version. Hukamsingh D.W.I has deposed that on hearing the alarm he as well as Panna, Kalu Singh, Birdaram, Bhura Ram, Surja Ram, Binja and Bhalla as well as Bhoma, Dharu and Moda reached the Bada which is situated between the Dhani of Rawta and Pannaram and in his presence Dharu inflicted a lathi blow on the head of Rawta and Bhoma thrust a halwani in the stomach of Smt. Gawri and another blow was inflicted by Dharu on the head of Rawta and at that time 25 to 30 persons were collected there and after this incident Rawta and Gawri were taken to Rawta's Dhani and later on we heard that both of them expired after some time. In his cross-examination this witness has stated that at the time when the children raised hue and cry he was sitting with Pannaram Darji at his house and Tipuda (real name not Known) had seen Gawri and Rawta in a compromising position and told that Gawri and Rawta were sitting in the Bada and he should go and see them. The witness did not say that he himself saw Gawri and Rawta in a compromising position, and not talked with them. An important thing to be observed in connection with the testimony of this witness is that he does not tell anything which may lead to the inference that Rawta and Gawri were actually found in a compromising position or they indulged in an illicit physical intimacy just before he reached there.
22. Pannaram D.W.2 has deposed that at about 4 P.M. Rawta and Gawri were indulged in illicit physical intimacy in the Bada and at that time Dharu inflicted two lathi blows on Rawta and Bhoma inflicted a halwani blow in the stomach of Smt. Gawri and at that time Hukamsingh, Hamir Singh, Bhura Ram, Kalu Singh as well as he himself were present. In his cross-examination he has stated that
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23. It is obvious by the above statement that he was not told about any illicit relationship between Rawta and Smt. Gawri by the children.
24. Birdaram D.W.3 has deposed that on the date of occurrence at about 4 p.m. a hue and cry was raised in the Bada of Rawta. At that time Rawta and Smt. Gawri were inside the Bada and Bhoma, Dharu and Moda started the quarrel. Bhoma had a halwani, Dharu had a lathi and Moda was armed with an axe and first of all Dharu inflicted a lathi blow on the head of Rawta and another blow was inflicted on the left side and then Moda inflicted as axe blow on Rawta and Bhoma inflicted a blow on Gawri with halwani. In his cross-examination, he has said that he went to spot because Moda, Dharu and others were fighting. The witness has admitted that he is a resident of a place which is situated at a distance of one mile from the Bada of Rawta.
25. The learned Sessions Judge has disbelieved the defence version.
26. We have given our anxious consideration to the arguments advanced by the learned Counsel for the appellants and the learned Public Prosecutor and carefully considered the evidence produced by both the parties. The defence story which has been put forward for the purpose of casting shadow of doubt on the prosecution case stood unreliable. In our opinion, the statements of Hukamsingh D.W.I, Pannaram D.W.2 and Birdaram D.W.3 do not inspire any confidence and they deserve to be rejected as false. The conduct of these witnesses and the version given by them does not inspire confidence. Smt. Gawri and Rawta both were related to each other inasmuch as Smt. Gawri was wife of Bhoma who is the real brother of Rawta. In the absence of any congent evidence it is inconceivable that Rawta and Smt. Gawri would have developed an illicit relationship. It is also inconceivable that they would indulge in sexual intercourse and exposed themselves in a compromising position before the children and it is also inconceivable that merely on a hue and cry being raised by small children Bhoma, Moda and Dharu would rush to the Bada of their brother Rawta with deadly weapons and started inflicting fatal blows without making an enquiry from any body as to what was the truth. The whole defence version is completely false and the learned Sessions was justified in discrediting the defence evidence.
27. In our opinion, the prosecution evidence is sufficient to prove that the accused persons wanted to cultivate the field bearing Khasra No. 226 belonging to Rawta and his brothers and when they were asked not to cultivate the field they started inflicting blows on Rawta and Smt. Gawri who intervened in order to save Rawta, was also fatally assaulted. We have no hesitation in coming to the conclusion that both the appellants shared the common intention to forcibly cultivate the field of the complainant party and that they further shared the common intention of causing death and of causing such bodily injury to Rawta and Smt. Gawri as they knew were likely to cause death and, therefore, both of them are not only liable for the offences committed by them individually but each one of them is also liable under Section 34 of the Indian Penal Code for the offences committed by other.
28. In our opinion, the offences under Sections 323 and 302 are brought home to the appellants and these appeals have no merit and deserve to be dismissed and are hereby dismissed. The appellants shall surrender to serve out the sentence awarded to them.