Kalu and ors. Vs. State of Rajasthan - Court Judgment

Excerpt:
- - fourthly, since three persons have been acquitted by the trial court, clearly innocent persons were roped in by the complainant. hence, the offence under section 307 ipc is clearly made out. clearly the complainant exaggerates in his testimony -an exaggeration which would amount to contradiction. 10. on the other hand, the fact that the incident occurred between two neighbours, over the grazing of the goats and the damage to the crop, after exchange of abuses from both the sides, after jagdish has suffered two injuries on his head and after only 'lathies' have been used, clearly points to the intention to cause grievous hurt. at best, the appellants can be attributed with the knowledge that they are likely to cause death of jagdish by hitting him over the head with 'lathi'.thus, a holistic appreciation of evidence clearly reveals that the intention was merely to cause culpable homicide not amounting to murder. considering the fact that the incident took place in the year 1983; for the last 25 years the appellants and the complainant have been co-existing peacefully as good neighbours; ten thousand) with one surety of the like amount to the satisfaction of the sessions judge, jaipur district, jaipur within a period of two months i.r.s. chauhan, j.1. the appellants have challenged the judgment dated 11.8.86 passed by the sessions judge, jaipur district, jaipur whereby the learned judge has convicted the appellants under different offences and has sentenced them as under:accused kalu:under section 147 ipc - one year's rigorous imprisonment and a fine of rs. 200/- and in default of payment of fine to further undergo two months rigorous imprisonment,under section 307 read with section 149 ipc - four years rigorous imprisonment and a fine of rs. 300/- and in default of payment of fine to further undergo two months rigorous-imprisonment.under section 323 read with section 149 ipc-two months rigorous imprisonment and a fine of rs. 50/- and in default of payment of fine to further undergo fifteen days rigorous imprisonment.accused kalyan:under section 147 ipc - one year's rigorous imprisonment and a fine of rs. 200/- and in default of payment of fine to further undergo two months rigorous imprisonment.under section 307 read with section 149 ipc - four years rigorous imprisonment and a fine of rs. 300/- and in default of payment of fine to further undergo two months rigorous. imprisonment.under section 323 read with section 149 ipc-two months rigorous imprisonment and a fine of rs. 50/- and in default of payment of fine to further undergo fifteen days rigorous imprisonment.accused ramphool:under section 147 ipc - one year's rigorous imprisonment and a fine of rs. 200/- and in default of payment of fine to further undergo two months rigorous imprisonment.under section 307 read with section 149 ipc- four years rigorous imprisonment and a fine of rs. 300/- and in default of payment of fine to further undergo two months rigorous imprisonment.under section 323 read with section 149 ipc - two months rigorous imprisonment and a fine of rs. 50/- and in default of payment of fine to further undergo fifteen days rigorous imprisonment.under section 323 ipc - two months rigorous imprisonment and a fine of rs. 50/- and in default of payment of fine to further undergo fifteen days rigorous imprisonment.accused bhagirath:under section 147 ipc - one year's rigorous imprisonment and a fine of rs. 200/- and in default of payment of fine to further undergo two months rigorous imprisonment.under section 307 read with section 149 ipc - four years rigorous imprisonment and a fine of rs. 300/- and in default of payment of fine to further undergo two months rigorous imprisonment.under section 323 read with section 149 ipc - two months rigorous imprisonment and a fine of rs. 50/- and in default of payment of fine to further undergo fifteen days rigorous imprisonment.accused gainda:under section 147 ipc - one year's rigorous imprisonment and a fine of rs. 200/- and in default of payment of fine to further undergo two months rigorous imprisonment.under section 307 read with section 149 ipc - four years rigorous imprisonment and a fine of rs. 300/- and in default of payment of fine to further undergo two months rigorous imprisonment.under section 323 read with section 149 ipc - two months rigorous imprisonment and a fine of rs. 50/- and in default of payment of fine to further undergo fifteen days rigorous imprisonment.under section 323 ipc - two months rigorous imprisonment and a fine of rs. 50/- and in default of payment of fine to further undergo fifteen days rigorous imprisonment.2. briefly, the facts of the case are that on 12.11.83 one kanhaiya lal (pw. 4)lodged a report (ex. p. 7) at police station, chaksu, wherein 'he claimed that he isgrowing mustard in his field. ramsahay, kalyan, bhagirath meena were grazing their goats in his field. therefore, he went there and told them to take their goats out of his field. after he came back to his house, ramsahay, kalyan, bhagirath, all sons of shankar, kalu, ramphool, sitaram, gainda, mahadev, ramu, govinda meena, armed with 'lathies' came to his house. they assaulted jagdish s/o ramsahay, kanhaiya lal s/o ramsahay, panchi w/o ramsahay, sushila w/o kanhaiya lal with 'lathies'. because of this assault, his family members are gravely injured. gopal and gopali rushed to their rescue and separated the parties. at the time of the incident many persons were present. in case these people had not intervened, the complainant and his party would have been killed. after threatening them that 'they will kill the entire family' and after stating that 'they do not care if they have to go to jail, but they will ensure that they kill the family', the accused persons left the house.' on the basis of this written report, a formal fir (ex. p. 7a), fir no. 253/83, was chalked out for offences under sections 147, 451 and 323 ipc.3. in order to prove its case, the prosecution examined ten witnesses and submitted twelve documents. on the other hand, the defence examined two witnesses and submitted three documents. after going through the oral and documentary evidence, the learned trial court acquitted ramu, mahadev and govinda, but convicted and sentenced the appellants as aforementioned. hence, this appeal before this court.4. mr. r.n. khandelwal, the learned counsel for the appellants, has raised the following contentions : firstly, the intention of the accused can be culled out by a holistic appreciation of evidence. secondary, both the parties are neighbours and have their fields right next to each other. the incident occurred all of a sudden, over the trifle matter of goats entering into the fields of the complainant party and damaging his crops. there was no premeditation and no animosity existed between the parties. the weapons used were 'lathies' which are not lethal in nature. thus, the intention was not to cause death, but the intention was merely to hurt the complainant party. thirdly, jagdish (pw. 3), who is the most injured person from the side of the complainant party, has merely sustained two lacerated wounds: one, on the left parietal part of the head. the second, laceration which is said to be a simple injury in nature. the first lacerated wound caused merely a linear fracture, i.e. a hairline fracture of the bone. thus, only a grave injury was caused. a linear fracture, thus, cannot cause the death of the person in the ordinary course of nature. hence, the offence under section 307 ipc is not made out. fourthly, since three persons have been acquitted by the trial court, clearly innocent persons were roped in by the complainant. fifthly, sushila (pw. 1) has been disbelieved by the trial court though she claimed to be an injured witness and an eye-witness to the incident. lastly, the injured witnesses, jagdish (pw. 3), kanhaiya (fw. 4), fanchi (pw. 6) are untrustworthy witnesses. four, they contradict each other's testimonies, they are not corroborated by the medical evidence, they are repeatedly contradicting their earlier statement given under section 161 cr.p.c. and they all claim, that sushila was present at the time of the incident. but, according to the learned trial court, sushila was not present at the time of the incident. hence, the creditworthiness of these witnesses is highly questionable. lastly, the learned counsel has pleaded that since the offence does not travel beyond section 308 ipc, the benefit of probation should be granted to the appellants as this was their first and last offence, as they have been peacefully living since 1983 i.e. almost for the last 25 years.5. on the other hand, mr. arun sharma, the learned public prosecutor for the state, his argued firstly, the appellants formed an unlawful assembly and came armed with 'lathies' with the intention to kill the complainant and his family members. secondary, their intention is obvious from, the fact that while they were leaving the complainant's house, they threatened the complainant that they will finish off his entire family. thirdly, according to the testimony of dr. g.s. rathore (pw. 3), jagdish, had suffered two lacerated wounds on his head, one of the lacerated wound had caused fracture of the scalp and was sufficient in the ordinary course of nature to cause jagdish's death. hence, the offence under section 307 ipc is clearly made out. he has, thus, supported the impugned judgment.6. we have heard the learned counsel for the parties, have perused the impugned judgment and examined the record.7. the intention of the parties has to be gathered from the facts of the case. while deciphering the intention, the court has to be alive to the cause of the incident, the nature of the weapon used, the nature of the injuries caused, the relationship between the parties, the trustworthiness of the witnesses, the absence of independent witnesses and other corroborating evidence available on record. the present case was initiated on a report lodged by kanhaiya lal (pw. 4). however, neither in his report, nor in his statement, did he give a graphic description of the incident. in fact he has not attributed specific roles to the individual appellants. his statement under section 161 cr.p.c. is equally vague. it is only in his testimony before the court that he starts assigning specific roles to the appellants. confronted with this glaring contradiction in his cross-examination, he merely claims that he had given all the details to the police in his statement under section 161 cr.p.c. clearly the complainant exaggerates in his testimony - an exaggeration which would amount to contradiction.8. similarly, jagdish's (pw. 3) and panchi's (fw. 6) testimony is replete with contradiction qua their statements under section 161 cr.p.c. the height of exaggeration has gone to the extent that sushila (pw. 1) was produced by the prosecution to corroborate the testimonies of the injured persons. however, sushila has rightly been disbelieved by the trial court. the tendency to exaggerate is further proved by the fact that even innocent persons were roped in who were subsequently acquitted by the trial court. thus, the prosecution case cannot be believed on its face value and a detailed appreciation of the evidence is required to see the nature of offence committed by the appellants.9. the prosecution claims that the appellants formed a unlawful assembly with the common object of committing murder. however, admittedly the appellants were armed with only 'lathies'. a 'lathi' is not a lethal weapon, but is an instrument readily available to every tom dick and harry in the rural area. if, indeed, the appellants had the intention to kill the complainant and his family members, surely they would have come armed with lethal weapons. even if for the sake of argument, it is accepted that 'lathi' can be used to kill a person, even then the nature of the injuries suffered by jagdish belies the claim of the prosecution that the intention was to kill and not to harm jagdish. over a petty matter of goats entering into the field of the complainant, after the exchange of abuses, a group of highly charged persons are alleged to have hit jagdish only twice over the head. resultantly, jagdish had sustained a simple injury and a linear fracture on his head. if, indeed, the intention was to kill jagdish, the five persons armed with 'lathies' would have caused more severe injuries than the ones sustained by jagdish. thus, neither the setting of the incident, the genesis of the incident, the nature of weapon used, nor the nature of injuries sustained reveal the intention to kill or to cause the death of jagdish. hence, it is difficult to phantom that the intention of the appellants was to commit murder.10. on the other hand, the fact that the incident occurred between two neighbours, over the grazing of the goats and the damage to the crop, after exchange of abuses from both the sides, after jagdish has suffered two injuries on his head and after only 'lathies' have been used, clearly points to the intention to cause grievous hurt. the injuries sustained by jagdish also have to be considered in the light of the fact that other persons who were injured namely, kanhaiya lal (pw. 4) sustained merely two abrasions oh the shoulder, similarly panchi (pw. 6), sustained a swelling with tenderness on the forearm and a bruise on the right post auxiliary line of the chest. thus, all the other injuries caused by the appellants are simple in nature. as far as the fracture on the head is concerned, one cannot lose sight of the fact that it is merely a linear fracture. at best, the appellants can be attributed with the knowledge that they are likely to cause death of jagdish by hitting him over the head with 'lathi'. thus, a holistic appreciation of evidence clearly reveals that the intention was merely to cause culpable homicide not amounting to murder. hence the case does not travel beyond the scope and ambit of section 308 ipc.11. the punitive theory of punishment and the deterrent theory of punishment have lost their force. considering the fact that the incident took place in the year 1983; for the last 25 years the appellants and the complainant have been co-existing peacefully as good neighbours; since the offence under section 308 is punishable with only three years, since the offence committed by the appellants is their first and last offence, since the appellant no. 1, kalu, was 60 years old at the time of the incident and must be an extremely old of 85 years by now, considering the fact that all the appellants are over 50 years by now, this court deems it proper to grant the benefit of probation under section 4 of the probation of offenders act 1958.12. for the reasons stated above, the appeal is partly allowed and the conviction of the appellants is converted from one under section 307/149 ipc to one under section 308/149 ipc. the conviction under section 323/149 as awarded to kalu, kalyan and bhagirath is maintained. the conviction of gainda and ramphool under section 323 ipc is equally maintained. the conviction under section 147 of all appellants is equally maintained.13. however, as all these offences are not punishable by life imprisonment or by death, this court grants the benefit of probation to the appellants. the appellants are directed to maintain peace and tranquility for a period of one year from the date of this judgment and to submit two bail-bounds in the sum of rs. 10,000/- each (rs. ten thousand) with one surety of the like amount to the satisfaction of the sessions judge, jaipur district, jaipur within a period of two months i.e. by 2nd of july, 2008.