Gordhan and ors. Vs. the State of Rajasthan - Court Judgment

S.S. Byas, J.

1. The appeal is directed against judgment of the learned Sessions Judge, Bikaner dt. Oct. 23, 1975, by which the six accused, namely, Gordhan, Basta Ram, Ramlal, Kishna Ram, Hanuman Ram and Ram Chandra were convicted Under Sections 302/149, 148 and 323/149, I.P.C and each was sentenced to imprisonment for life on the first count and six months' rigorous imprisonment on the remaining two counts. The sentences were directed to run concurrently.

2. Put briefly, the prosecution case is that the deceased Balusingh Rajput was the Sarpanch of Gram Panchayat Udasar P.S. Nokha district Bikaner. Accused Gordhan was a Panch in the Gram Panchayat. Five members of the Panchayat were on the side of accused Gordhan while seven members of the Panchayat were the supporters of the deceased-victim. As a result, two parties came to be formed in village Udasar - one headed by the deceased-victim and the other headed by the accused Gordhan. The State of Rajasthan allotted a major portion of pasture land of village Udasar to the Forest Department. It is alleged that the deceased Balusingh was an instrument in getting this allotment of land to the Forest Department. This was resented and protested by the accused Gordhan and the persons belonging to his group. The Forest Department wanted to fence the allotted land with wires for growing trees. Some of the villagers of Udasar again raised protest as they wanted to preserve it as pasture land. The deceased Balusingh had obtained a-mining lease from the State Government to excavate the lime pebbles. He had employed some labourers for excavation work. It is suggested that accused Gordhan and his supporters were not happy with this lease of quarry granted to the deceased Balusingh.

3. On April 24, 1973 the labourers employed by the deceased Balusingh came to him and told that lime pebbles were no more available in the lease-hold area. They asked him to show some other place in the lease-hold area for excavation of lime pebbles. At about 11.00 or 12.00 O'clock on that day, the deceased Balusingh took PW 1 Kaliyasingh, PW 2 Pratapsingh and PW 3 Lalsingh to go to his quarry to show a new place for excavation to his labourers. When these four persons reached near the field of one Bhei aram on their way to the quarry, the six accused persons suddenly emerged from the thorny fences of the field and made an assault on Balusingh. Accused Basta Ram had an axe, accused Hanuman had a Barchhi, accused Gordhan had a Sela, accused Ram Lai had a Jeyee while the remaining two Ramchandra and Kishna had lathies. Accused Basti Ram struck a blow of his axe on the head of Balusingh. Accused Hanuman struck a blow of his Barchhi on the head of Balusingh. Balusingh fell down. Accused Gordhan struck a blow of his Sela on the left (side of the) waist of Balusingh. The remaining accused also struck blows to him with their weapons. When Kaliyansingh and others tried to intervene and save Balusingh, they too were not spared and were inflicted blows by the accused persons, Lalsingh and Pratapsingh, on infliction of blows to them, left the place and ran away. There was profuse bleeding from the wounds of Balusingh and he passed away instantaneously on the spot. The accused persons then retreated. Kaliyansingh, who remained on the spot with Balusingh, lifted his deadbody and placed him under the shade of a Khejri tree. Lalsingh and Pratapsingh went to the village and narrated the incident to the villagers. Many persons including PW 4 Sanwatsingh came on the spot and found Balusingh lying dead. They remained with the deadbody and Kaliyansingh left the place to go to the pqlice. He reached Police Station, Nokha at about 5.00 p.m. on the same day and verbally lodged report Ex. P-5 of the occurrence. The police registered a case and proceeded with investigation. The Station House Officer Mahaveer Prasad (PW 10) arrived on the spot on the same day, inspected the site and prepared the site plan Ex. P-6. He found bloodstains on the site. He seized and sealed the bloodstained soil from there. The inquest report of the viciim's dead body was prepared. The post-mortem examination of the victim's dead body was conducted by PW 5 Dr. M. L. Mishra - the then medical Officer Incharge, Primary Health Centre, Nokha at about 5.30 p.m. on the same day. He was taken to the spot by the investigating, officer. The doctor found the following ante-mortem injuries on the person of the victim's deadbody:

1. Punctured wound just above Iliac Crest size IW X W X W deep caused by sharp and pointed weapon.

2. Punctured wound on the upper half of the right leg antro-medially size 1' X 1/2' X W deep caused by sharp and pointed weapon.

3. Cut wound on the upper half of the left forearm 3' blow the elbow joint 2' X y2' X IW deep caused by sharp pointed weapon.

4. Punctured wound on the left side of the chest upper half just above the left nipple size y/2' X 2' X 1/3' deep caused by sharp weapon.

5. Multiple bluish red lines 5 to 6 in numbers on the left side of the scapular region, 5' X 1' caused by blunt weapon.

6. Bluish red lines two in number on the right side of the back, upper half size 5' X 1' and 6' X 1' caused by blunt weapon.

7. Cut wound on the head 5' away from the left ear at the occipito-parietal bones size 4'' X 3/4'' deep into brain, cutting the skull bones and bone pieces entered into the brain matter profused bleeding through it more towards the left side membrane ruptured and blood from meningeal artery caused by sharp weapon.

7. Cut wound or the head 2W away from injury No. 7 at the occipito-parietal bone orv the right side size 3' X y2' deep to the bone caused by blunt weapon.

The doctor was of the opinion that the cause of death of the victim was fracture of skull bones, destruction of brain matter and haemorrhage leading to shock. The postmortem examination report prepared by him is Ex. P-l. Injury No. 7 was. stated to be sufficient in the ordinary course of nature to cause death.

4. On the same day, the doctor examined Kaliyansingh and found the following injuries on his person:

1. Painful swelling on the left upper half of the left leg size 3' X 3' posteriorly.

2. Bluish red line with swelling around it size 3' X 1' and 2' X 3' swelling around it on left hip joint.

3. Abrasion with reddish swelling size W X yf and swelling around 3' X 4' at the right shoulder joint at the top.

4. Lacerated wound W X W on the top of the head 2W above the left ear.

5. Abrasion y2' X W on the root of the right little finger dorsally.

6. Abrasion y4' X y4'' on the left index finger third phalanx dorsally.

7. Two abrasions 4' X 1/4' each on the lower half of the left forearm palmer side.

All these injuries were classified as simple and caused by blunt weapon.

5. On April 25, 1973 the doctor examined PW 2 Pratap Singh and PW 3 Lalsingh and found the following injuries on their person:

Pratapsingh:

1. Lacerated wound 1' X 1/4' X 1/4' deep on the outer angle of righteye brow.

2. Bluish red line 3' X 1' on the middle one third of the right side of the back.

Lalsingh:

1. Abrasion 1/3' X 1/4' on the right chest 1 1/2' below the right eye.

2. Painful swelling 1' X y2' on the ramus of the mandible right side just below the lobe of the ear.

3. Abrasion 1/2' X 1/4' on the first phalanx of the right thumb dorsally.

The injuries of these two injured persons were stated to be simple and caused by blunt weapons. The injury reports issued by Dr. Mishra are Ex. P-2, Ex. P-3 and Ex. P-4. The accused were arrested and in consequence of the information furnished by them, Sela, Barchhi and Kulhari were recovered. The blood-stained clothes of the deceased and the injured victims were also seized and sealed during investigation. The articles were sent for chemical examination and human blood was found on all of them including the weapons recovered at the instance of the accused. On the completion of investigation, the police submitted a challan against the six accused persons in the Court of Additional Munsif Magistrate, Bikaner, who, in his turn, committed them to take trial in the Court of Sessions Judge. The learned Sessions Judge framed charges Under Sections 302/149, 323/149 and 148, I.P.C. against all of them. He also framed an additional charge Under Section 302, I.P.C. against accused Basta Ram. The accused pleaded not guilty and faced the trial. Accused Hanuman admitted his presence on the spot though in a different way, while the remaining five denied their presence and pleaded alibi. According to the defence version put forward by accused Hunuman, the members of the complainant party were annoyed because at his request the Forest Department had stopped the fencing work of the pasture land. The members of the complainant party along with many others came to the Dhani of DW 1 Bhera Ram. They were armed with guns and other lethal weapons. The deceased Balu Singh and his companion Luniya fired guns. PW 2 Pratapsingh had an axe. They made an assault on accused Hanuman and struck blows to him. Accused Hanuman became unconscious on the spot. This led to a fight between the members of the complainant party and 16 other villagers, who were there at his Dhani. A report was lodged by accused Hanuman against the members of the complainant party and the police had filed a challan against them after investigation. They were facing trial in that criminal case. It was suggested that in order to give a counter . stroke to that criminal case, the members of the complainant party have falsely implicated him (accused Hanuman) and his associates. In support of its case the prosecution examined ten witnesses and filed a number of documents. In defence, the accused examined six witnesses and also filed some documents. On the conclusion of trial, the learned Sessions Judge found no substance in the defence version of the incident put forward by the accused persons. He held that the incident had taken place in the manner suggested by the three eye witnesses : PW 1 Kaliyansingh, PW 2 Pratapsingh and PW 3 Lalsingh. He found the evidence of these three ocular witnesses reliable and dependable. He held that the accused'persons were the aggressors and no right of private defence was available to them. He, therefore, held the charges duly brought home to the accused persons. The accused persons were consequently convicted and sentenced as mentioned at the very outset. Aggrieved against their conviction, the accused have come up in appeal.

6. Accused Ramlal passed away during the pendency of the appeal and as such the appeal filed by him stands abated.

7. We have heard Mr. M. M. Singhvi learned Counsel for the appellants and the learned Public Prosecutor Mr. L. S. Udawat. We have also gone through the case file carefully.

8. In assailing the conviction, Mr. Singhvi raised two contentions, viz. (1) the members of the complainant party were the aggressors. The plea of the right of private defence of person was wrongly rejected by the trial Court and (2) even if the incident is alleged to have taken place in the manner stated by the three ocular witnesses, the offence made out does not fall within the ambit of Section 302,1.P.C. The offence made out falls Under Section 326 or at the worst, under the Second Part of Section 304,1.P.C. It would be proper to deal with his contentions at seriatim.

9. Developing,his first contention that the plea of private defence was wrongly rejected by the trial Court, it was argued by Mr. Singhvi that the injuries found on the person of accused Hanuman have not been explained by the three eye witnesses. That shows that they had suppressed the real facts and did not give a correct and true account of the incident. The unexplained presence of injuries on the person of accused Hanuman probabilises the defence version that the complainant party was the aggressor, who had opened the assault. It was, on the other hand, contended by the learned Public Prosecutor that only two injuries were found on the person of accused Hanuman when he was medically examined on April 25, 1973. These injuries were simple and trivial in nature. Numerous blows were landed to the deceased and the injured victims. In such a situation, minor injuries may be caused to the accused when the victim tries to resist the assault. We have taken the respective submissions into consideration.

10. The injuries of accused Hanuman were examined at about 12.30 p.m. on April 25,1973 by Dr. Mishra (PW 5). He found the following injuries on his person:

1. Lacerated wound 3' X 1/2' X 1/4' deep on the head at the junction of occipital parietal bone.

2. Lacerated wound 1' X 1/4' X 1/4' deep on the back of the right ear 1' away from the right ear.

Both the injuries were simple caused by some blunt weapon. The duration of the injuries was within twelve hours. The injury report is Ex. D-7.

11. Now, in order to properly deal with the contention, it would be proper and useful to briefly read the evidence of the three ocular witnesses, viz., PW 1 Kaliyansingh, PW 2 Pratapsingh and PW 3 Lalsingh, each of whom claimed to have seen the incident from the commencement to the end. They stated that at about 11.00 or 12.00 a.m. on April 24, 1973, they were going with deceased Balusingh to his limes-pebbles quarry. When they reached the field of Bhera Ram at its South-West corner, the accused persons suddenly came out from behind the thorny fences. Accused Basti Ram had an axe, Hanuman had a Barchhi, Gordhan had a Sela, Ram Lai had a Jeyee and the remaining two Ramchandra and Kishna had lathies. Accused Basti Ram struck a blow on the head of Balusingh with his axe. Accused Hanuman struck a blow with his Barchhi also on the head of Balusingh. Balusingh fell down. Accused Gordhan struck a blow on the waist-side of Balusingh with a Sela. Thereafter, the remaining accused administered blows to Balusingh with their weapons. When they tried to intervene to protect Balusingh, they too were not spared and were landed blows by the accused persons. They have described as to how they received injuries and by whom they were inflicted. They further stated that PW 2 Pratapsingh and PW 3 Lalsingh, when (were) landed blows, left the place and ran away. Balusingh passed away instantaneously on the spot. There was profuse-bleeding from his wounds and the blood spread on the soil. All these witnesses were cross-examined at length, but nothing could be elicited from them so as to make their testimony unworthy of belief or credence. They denied in cross-examination the suggestions that they and their confederates were armed with lethal weapons and they had opened an assault on accused Hanuman and others. They also refuted the suggestion that they and their companions were armed with guns and they were fired. These three witnesses had received injuries in the incident and their presence at the site when the incident took place is not open to any challenge. Their injuries are not superficial or trivial in nature. In fact, Mr. Singhvi raised no contention to show that these three ocular witnesses were not present at-the site or had not seen the incident. There is, thus, nothing in the statemerits of these three eye witnesses that it was the complainant party who first opened the attack on the accused persons. There is nothing to show that the members of the complainant party were the aggressors. We are unable to find any material to show that any of the members of the complainant party or the deceased-victim had any sort of weapon with them.

12. Mr. Singhvi invited our attention to the evidence of the defence witnesses DW 1 Purkha Ram, DW 2 Bhera Ram and DW 3 Moti Ram to show that accused Hanuman and some other villagers had collected at the Dhani o! DW 2 Bhera Ram to take water as here was a water-hut there. The deceased Balusingh and his companions, who were fifteen in number, i;:.;h'Jing the prosecution witnesses Pratapsingh, Lalsingh and Kaliyansingh, came there. They had guns with them. They fired the guns. It. led to a commotion and exchange of bl

13. It may be pointed out that when the investigating officer inspected the site, he found blood-stained soil at the place shown by mark '3' in site plan Ex. P-6. This place is not in the field of Bhera Ram nor is near about his Dhani. His Dhani is situate far away from the place of incident shown by mark '3' in site plan Ex. P-6. That again shows that the defence .Mitnes8es are not dependable and what thsystetated cannot be accepted.

14. It is true that two minor injuries were found on the person of accused Hanuman. It is not an uncommon or unusual phenomena that the victims, when assaulted with lethal weapons do attempt to ward-off the aggressor. In that process the aggressor is likely to sustain minor and trivial injuries. The presence of trivial and insignificant injuries on the person of an accused in itself does not probabilise the plea of private defence. The plea of private defence should not be readily assumed merely because the accused had sustained insignificant injuries. The right of private defence should be based on positive material. It cannot be made out merely on surmises and conjectures.

15. The presence of injuries on the person of an accused is only a circumstance to bfc taken into consideration while evaluating the plea of private defence. There is no invariable rule of universal application that as soon as injuries, however trivial they may be, are found on the body of an accused, the right of private defence springs up.

16. Apart from that, the disproportion of injuries received by the members of the complainant party on one hand and the accused Hanuman on the other hand, is a factor to be taken into consideration. The injuries sustained by deceased Balusingh and the three ocular witnesses PW 1 Kaliyan Singh PW 2 Pratapsingh and PW 3 Lalsingh are numerous and extensive caused by lethal weapons like axe, Barchhi, Sela and lathis. This disproportion between the injuries sustained by the members of the complainant party and the accused-appellant Hanuman tends to show that the members of the complainant party were unprepared for any attack and they were not the aggressors. Unpreparedness for attack is the best proof of non-aggression and that unpreparedness on the part of the complainant party is there in the instant case. The plea of private defence put forward by the accused persons is thus only a tell-tale.

17. Coming to the second contention, it was argued by Mr. Singhvi that though there were strained relations between the parties, none of the accused had any personal enmity or grudge against the deceased Balusingh. No motive has been put forward by the prosecution as to what prompted the accused persons to put Balusingh to death. Two injuries were inflicted with a sharp-edged weapon on the head of Balu Singh. Only one of them, viz. injury No. 7, vide post-mortem examination report Ex. P-l, was found fatal, which had caused the death of Balusingh. According to eye witnesses, accused Basti Ram struck a blow with an axe on the head of Balusingh and accused Hanuman struck a blow with Barchhi on his head. There is no evidence as to who out of these two accused persons Basti Ram and Hanuman had inflicted the fatal injury No. 7. The circumstances do not point out that accused persons had any intention to kill Balusingh. In these circumstances the offence made out does not fall within the ambit of Section 300,1.P.C. We have given our thoughtful consideration to the submission and find substance in it.

18. Admittedly, the deceased Balusingh was the Sarpanch of Gram Panchayat, Udasar. The Panchayat split up in two factions, one headed by the deceased Balusingh and the other headed by accused Gordhan. The deceased Balusingh was an instrument and played an active role in getting the pasture land allotted to the Forest Department for aforestation. The other accused persons belong to the party of accused Gordhan. But that in itself is not sufficient to show that on account of this allotment of pasture land to the Forest Department, the accused persons wanted to commit the murder of Balusingh. The motive suggested is grossly inadequate to push the accused persons to commit the murder of Balusingh. Further, according to prosecution, Balusingh was suspended from the post of Sarpanch and one Bajrang, who was Up-Sarpanch, was directed by the State Government to officiate as Sarpanch. The deceased Balusingh, despite his being suspended, did not hand over the charge to Bajrang. But this fact also is not sufficient to infer that the accused persons wanted to take the life of Balusingh simply because he had not handed over the charge of the office of the Sarpanch to Bajrang. The deceased Balu Singh was granted a lease by the Mining Department for excavation of limes pebbles. The granting of lease might have annoyed the accused persons, but not to that extent that they wanted to finish him forever. There is, thus, no motive - good, bad oi indifferent, which prompted the accused persons to take the life of Balusingh.

19. It was, however, contended by the learned Public Prosecutor that when there is direct evidence to establish the guilt of accused persons, motive is not at all relevant and the absence or inadequacy of motive loses its entire significance. It is true that motive is not an essential ingredient of the offence of murder and when there is direct evidence about the commission of the offence, motive loses its significance and recedes in the background. But despite that, the importance of motice is relevant to find out the intention of the culprit. After all motive is the reason which prompts the intention. Motive, though not a sine qua non for bringing the offence of murder at the door-step of accused, is, nevertheless, relevant and important on the question of intention. Suffice it to say that no motive has been established by the prosecution in the instant case. The relations between the parties might have sunk deep low, but they had not sunk so low as to push the accused persons to put Balusingh to death.

20. The accused persons had, no doubt, formed an unlawful assembly and used violence against the members of the complainant party and the deceased Balusingh. The accused persons have been convicted Under Section 302 with aid of Section 149, I.P.C. Now, when a person is killed as a result of the violence used by an unlawful assembly, the nature of offence may take one or the other shape out of the following:

(1) If the murder was in prosecution of the common object of the unlawful assembly, all the members will be guilty for the murder Under Section 302 read with Section 149, I.P.C. It is then immaterial as to which member of the unlawful assembly caused fatal injury to the deceased-victim.

(2) If the members of the unlawful assembly knew before hand that the offence actually committed was likely to be committed in prosecution of that common object, in that Case every member of the unlawful assembly will again be guilty Under Section 302 read with the second part of Section 149, I.P.C.

(3) If the killing was not in prosecution of the common object of the unlawful assembly and the author of the fatal injury, which resulted in the death of the victim is known, only that member of the unlawful assembly who wielded the fatal blow, will be individually liable for the murder and the act of his causing the fatal injury to the victim will be taken as his isolated act. Section 149, I.P.C, cannot, in such a case, be invoked to fasten liability for the murder on the other members of the assembly. The other members of the assembly rtiay be convicted Under Section 326 or 325, etc., of the Penal Code (depending on the type of weapon wielded) with the aid of Section 149, I.P.C.

(4) If the killing was not in the prosecution (J>f the common object of the unlawful assembly and the author of the fatal injury is also not known, as to which member caused it, then none of the members can be convicted for the murder Under Section 302 with the aid of Section 149, I.P.C. However, the member of the assembly cannot escape the liability under s. 326 or 325 with the aid of Section 149, I.P.C.

21. Here in the instant case, as discussed above, no motive is forthcoming from the side of the prosecution. The relations between the deceased and the accused persons had not sunk so low that they intended to kill Balusingh as he had played an active role in getting the pasture land allotted to the Forest Department. In these circumstances, the only inference we can safely draw is that the common object of the unlawful assembly constituted by them was only to give a good thrashing and beating to the deceased and no more. The common object of the assembly was not to commit the murder of Balusingh.

22. The death of Balusingh took place on account of his head injury No. 7. Only two injuries were inflicted on his head, viz., injury No. 7 and injury No. 8. According to the eyewitnesses, accused Basti Ram and Hanuman struck blows on Balusingh's head with axe and Barchhi respectively. But they could not positively point out whether accused Basti Ram had inflicted injury No. 7. Likewise, they | did not state that accused Hanuman had inflicted injury No. 7 to Balusingh. The authorof fatal injury No. 7, thus, cannot be ascertained. The case is, therefore, not covered by the instances (1), (2) or (3)enumerated above. The case comes within the 4th category. The conviction of the appellants Under Section 302 read with Section 149, IRQ is, thus, bad and cannot be sustained. They can be convicted only Under Section 326 read with Section 149, I.P.C, in respect of the death of Balusingh.

23. As regards the conviction of the appellants Under Sections 148 and 323/149, I.P.C, we find no infirmity. The appellants had caused injuries to PW 1 Kaliyansingh, PW 3 Pratapsingh and PW 3 Lalsingh. They were armed with deadly weapons like axe, Barchhi,Jeyee, Sela and Lathies. Their conviction Under Section 148, I.P.C. is, thus, proper.

24. In the result,

(1) the appeal of accused (1) Gordhan, (2) Basti Ram, (3) Kishna, (4) Hanuman Ram and (5) Ramchandra is partly allowed. Their i conviction and sentence Under Section 302,/149,I.P.C, are set aside and instead they are i convicted Under Section 326/149, I.P.C, and each ! is sentenced to five years rigorous i imprisonment and a fine of Rs. 500/-, indefault of the payment of fine to further ,'i undergo five months' like imprisonment;

(2) the conviction and sentence of the appellants Under Sections 148 and 323/149,1.P.C., are maintained;

(3) the accused-appellants are on bail. They will present themselves before the learned Sessions Judge, Bikaner, on 28-7-86 to serve out the unexpired portion of their sentence, if any, and to pay the fine. In case they fail to do so on the aforesaid date, the learned Sessions Judge will proceed against them in accordance with law.