Mst. Chimo and Sonia Vs. State of Rajasthan - Court Judgment

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criminal trial - appreciation of evidence--evidence of witness inspiring confidence--name of witness not mentioned in fir--held, evidentiary value is not dismissed;the evidence of the eye-witnesses dalaram, mst. gopi and manak inspires confidence and despite some embelishments made by them we accept their testimony. the mere fact that the names of mst. gopi and manak have not been mentioned in the first information report will also not diminish their evidentiary value.;(b) penal code - right of private defence--injuries simple and abrasions on person of accused--held, injuries are superficial & insignificant and no right of private defence is available to accused;all the injuries of mst. chimo are simple, mere abrasions. some of them appear to be the result of friction with thorny bushes. to us, the injuries are superficial and quite insignificant and not much importance can be attached to the same. the accused could not, therefore, be said to be exercising the right of private defence of person.;(c) penal code - right of private defence--entry in field to make complaint--no intent to comit an offence--held, accused cannot have a right of private defence;the entry of dalaram in the field of the accused was not with the intent to comit an offence or to intimidate, insult or annoy any person, therefore, the mere entry of the witness in the field of the accused just for the sake of making a complaint would not give rise to any right of private defence of property to the accused.;appeal partly allowed. - motor vehicles act, 1988 [c.a. no. 59/1988]sections 163-a & 166; [r.m. lodha, shiv kumar sharma & ashok parihar, jj] award passed by tribunal under section 163-a nature of held, the award passed by tribunal under section 163-a of act under structured formula is a final award and once that award has been passed, no further award under chapter xii of m.v. act could be passed by the tribunal. the provisions contained in sections 163-a and 166 of act provide for two different modes but the two modes cannot simultaneously be invoked by the claimants. the claimant must opt/elect to go either for a proceeding under section 163-a or under section 166 of the m.v. act but not under both. the award under section 163-a is final and cannot be described as interim and no proceeding for compensation under section 166 can be undertaken once the award is declared under section 163-a. - chimo on the side of the accused, appellant received injuries which the prosecution has failed to explain and that the accused were entitled to the right of private defence. then i went to their dhani to complain on this bhooria, sonia and chimo assaulted me. dalaram had gone to the dhani of the accused just to complain about the grass removed from his field. 12. the result, therefore, is that the prosecution has succeeded in establishing that when dalaram, finding that some grass stacks piled earlier in his field had been removed, went to the dhani of the accused to complain about it, the accused came out with lathi and other weapons in their hands. despite the fact that the witnesses have tried to change the place of incident and have also made some embelishment in the story, the substratrum of the prosecution case does not fail.sobhag mal jain, j.1. both these appeals are directed against the judgment dated the 12th april, 1975, of the additional sessions judge, jodhpur, convicting and sentencing the appellants for the offence under section 302 read with section 34 ipc to, life imprisonment and a fine of rs. 500/-, in default of payment of fine to 6 months' further rigorous imprisonment and under section 307 read with section 34 ipc to 5 years rigorous imprisonment and a fine of rs. 200/-, in default of payment of fine to three months' further rigorous imprisonment. the sentences have been directed to run concurrently.2. the case relates to the incident which took place on december 3, 1973, in the morning at the outskirts of village hopandi, which resulted in the death of bhanwarlal and injuries to dalaram. the prosecution case, in brief, was that dalaram had cut and collected grass in his field. on the date of the incident at about 9.00 am, he saw the accused sonia and bhooria carrying away that grass. when dalaram objected to it, the accused sonia assaulted and inflicted injuries on him. accused sonia was armed with a lathi and bhuriya with a dantla. accused mst. chimo was also there having a kassi with her. she also caused injuries to him by that kassi. dalaram raised an alarm, which attracted bhanwarlal, his wife mst. gopi and his son manak. bhanwarlal tried to rescue dalaram, but he too was beaten by the accused. mst. gopi and manak raised cries, which attracted meghji, ridmal, ratanlat and ranaji to the scene of crime. on this, the accused went away towards their dhani. motiram and taruram, brothers of deceased were then called. both bhanwarlal and dalaram had become unconscious. they were removed to the dispensary at phalodi. doctor suresh chandra mathur, medical officer-in-charge, phalodi dispensary examined the injuries of dalaram and bhanwarlal. dalaram was admitted in the dispensary at phalodi but the condition of bhanwaria was serious and, therefore, the doctor referred to the hospital at jodhpur. bhanwaria was taken to jodhpur and he succumbed to his injuries at the door of the hospital there.3. the first information report of the occurrence was lodged by taruram at police station, phalodi, on december 3, 1973, at 2.45 p.m. on which a case was registered and investigation started. shri devilal, station house officer, phalodi, reached the place of occurrence, made spot investigation, seized blood-stained earth and other articles viz. a pair of shoes and a wooden piece of the dantli from the scene of crime. on december 4, 1973, the post-mortem examination of bhanwarlal was conducted by dr. p. dayal, who found 8 injuries on the body of bhanwarlal. according to him, the cause of death has come as a result of injuries on the head. mst. chimo was arrested on december 6, 1973, on the information and at the instance of accused mst. chimo, the investigating officer recovered a kassi from the dhani of the accused. she also got recovered a dantla. accused sonia and bhooria were arrested on december 11, 1973. a lathi was recovered at his instance. after investigations, the police filed a charge-sheet against the accused appellants in the court of munsif and judicial magistrate, first class, phalodi. who committed them to the court of sessions judge, jodhpur. the case was then transferred to the court of additional sessions judge, jodhpur, who charged and tried the accused-appellants for the offenses under sections 302 and 307 ipc. to prove its case, the prosecution examined as many as 21 witnesses.4. in their statements recorded under section 313, cr.pc, the accused denied the prosecution allegations. sonia denied his presence on the scene at the time of incident and stated that he was at his field. it was at 12 o'clock that he reached his house and heard about the incident. mst. chimo stated that bhanwarlal and dalaram had come to her dhani to take away the grass. she protested, on which bhanwarlal assaulted her with the lathi. dalaram beat her with dantla. she raised a cry, which attracted bhuriya to the scene. they accused, however, beat him also. when they did not desist she used her lathi against bhanwarlal and dalaram. the statement of bhuriya was similar to that of mst. chimo. he stated that bhanwariya and dalaram were beating his mother, as she had objected to the taking of grass by them. when he intervened, bhanwarlal caught hold of his neck. he could not say how bhanwarlal fell down. the accused examined kastur chand in defence. he stated that bhanwarlal and dalaram on one side and mst. chimo and bhuriya on other were grappling. this had taken place in the field of the accused.5. after trial, the learned additional sessions judge convicted and sentenced the appellants, as aforesaid. the learned sessions judge held that the occurrence took place neither inside the field of dalaram, not at the place adjoining the hut of the accused but at point no. 2 shown in the site-plan ex. p/17. by placing reliance on the evidence of dalaram and smt. gopi, the learned sessions judge came to the conclusion that all the accused inflicted injuries on the person of dalaram and bhanwarlal. the learned sessions judge also held that the accused could not be said to be acting in pursuance of a pre-arranged plan. but the common intention developed while they were inflicting injuries on bhanwarlal and dalaram and they had knowledge that the said injuries could cause the death of the injured. the learned sessions judge did not accept the plea of right of private defence put-forth by the accused. the learned sessions judge further held that the common intention of the accused was to make a murderous assault on dalaram and bhanwarlal and, therefore, even if the fatal injury of dalaram and bhanwarlal could not be assigned to a particular accused, each one of them could not be held guilty under-sections 302 and 307 with the aid of section 34 ipc. aggrieved of by the aforesaid judgment of the learned sessions judge, the appellants have now come in appeal to this court.6. we have heard shri r.n. bishnoi, learned counsel for the appellants an shri l.s. udawat, learned public prosecutor, for the state.7. mr. r.n. bishnoi has contended that mst. chimo on the side of the accused, appellant received injuries which the prosecution has failed to explain and that the accused were entitled to the right of private defence. mr. bishnoi has argued that the witnesses have changed the place of incident, suppressed the real version of the occurrence and the court is left to surmise how the entire incident has happened.8. we have read the judgment of the learned additional sessions judge and have been taken through the record of the case. there is no dispute that both bhanwarlal and dalaram received injuries and as a result of the said injuries, bhanwar lal died at the door of the jodhpur hospital and dalaram had to be admitted in phalodi dispensary. the accused mst. chimo and bhooriya have admitted in their statements recorded under section 313 cr. pc that they were present at the scene of the crime when the occurrence took place. we have now to consider whether accused sonia was also present and participated in the assault, whether the accused were exercising the right of private defence and whether the evidence on record is sufficient to sustain the conviction of the appellants for the offences under sections 302 and 307 ipc.9. true the prosecution witnesses have tried to change the place of incident. the learned sessions judge has given a categorical finding that the occurrence took place neither inside the field of dalaram, nor at the dhani of the accused, but at place no. 2, shown in the site-plan ex.p. 17 smt. gopi pw 7 in her examination-in-chief has fixed the place of incident in the field of dalaram. she was confronted with her statement recorded under-section 161 cr. pc where she stated that the incident had taken place near the dhoriva. dalaram was assaulted when he had gone to express protest dalaram, injured and principal witness of the prosecution in his previous statement ex.d. 5 recorded during investigation had stated:then i went to their dhani to complain on this bhooria, sonia and chimo assaulted me.the correctness of the site plan prepared by the investigating officer is not assailed before us. in the site-plan the investigating officer has shown blood the pair of shoes and the wooden piece of the dantla at point no. 2, which is in the centre of the field of aduram nai. the dhani of the accused is on the south east corner 180 paces away from this spot. the dhani of dalaram and bhanwarlal is located at a distance of 280 and 580 paces away on the north-west side from point no. 2. the material on record, therefore fully justifies the finding of the learned sessions judge that the occurrence took place neither in the field of dalaram, nor near the dhani of accused, but at a place shown as point no. 2 in the site plan ex. 17.10. although the witnesses have tried to shift the place of incident to dalaram's field, it would not affect the prosecution case. dalaram was himself injured and his presence at the time of incident is beyond dispute. the dhani of bhanwarlal was 580 paces away from spot no. 2 and it was not impossible for them to reach the place on hearing the cries of dalaram. their presence at the scene of occurrence is therefore, natural. all the three witnesses, namely dalaram, smt. gopi and manak have stated that the accused sonia, bhooria and mst. chimo had assaulted both dalaram and bhanwarlal. their testimony finds support from the evidence of dr. suresh chand mathur, who examined the injuries of dalaram and bhanwarlal and also from the evidence of dr. p. dayal who conducted the post-mortem examination of bhanwarlal and found injuries on his body. the evidence of the eye-witnesses dalaram mst. gopi and manak inspires confidence and despite some embelishments made by them we accept their testimony the mere fact that the names of mst. gopi and manak have not been mentioned in the first information report will also not diminish their evidentiary value. we find enough material on record to sustain the findings of the learned additional sessions judge that accused sonia was also present and all the three, namely sonia, bhuria and mst. chimo participated in the assault made on dalaram and bhanwarlal.11. the next question for our consideration is whether in inflicting the injuries to dalaram & bhanwarlal, the accused were exercising the right of their private defence of person or property. no other accused except mst. chimo have received any injuries. the injuries of mst. chimo were as under:--------------------------------------------------------------------------nature of the since of each on what part of the bodyinjury whether cut, injury in inches, inflicted wound, bruise being length, breath and depth --------------------------------------------------------------------------(1) abrasion linear 8' in length a linear abrasion on rt. leg on outer side starting from knee down wards placed nearly parallel to each other(2) abrasion multiple 1' - 2' on mid of left leg on out small side (3) abrasion linear 7' - 8' in length starting from knee downward infront going toinner side and back side of left leg 7-3 in number placed parallel to each side(4) abrasion linear 2'-2.5' on front side of left shoulder 4 in number placedobliquely just near the collar bone.--------------------------------------------------------------------------all the injuries of mst. chimo are simple, mere abrasions. some of them appear to be the result of friction with thorny bushes. to us, the injuries are superficial and quite insigificant and not much importance can be attached to the same. the accused could not, therefore, be said to be exercising the right of private defence of person. learned counsel for the appellants has, however, submitted that dalaram in going to the dhani of the accused had committed an offence of criminal trespass which would give rise to the appellants the right to defend property. we do not see any substance in this contention. dalaram had gone to the dhani of the accused just to complain about the grass removed from his field. he had retreated and had reached point no. 2, 180 paces away from the dhani of the accused. the accused chased him and inflicted injuries to him and also to bhanwarlal, who came there hearing the cries of dalaram. obviously, the entry of dalaram in the field of the accused was not with the intent to commit an offence or to intimidate, insult or annoy any person, therefore, the mere entry of the witness in the field of the accused just for the sake of making a complaint would not give rise to any right of private defence of property to the accused.12. the result, therefore, is that the prosecution has succeeded in establishing that when dalaram, finding that some grass stacks piled earlier in his field had been removed, went to the dhani of the accused to complain about it, the accused came out with lathi and other weapons in their hands. dalaram retreated & had almost reached the spot shown as point no. 2 in the site plan, when he was overtaken by the accused and beaten. his cries attracted bhanwarlal. when he tried to save dalaram. he too was assaulted by the accused. both dalaram and bhanwarlal fell unconscious. they were removed to the government dispensary at phalodi. dalaram was admitted there, while bhanwarlal was taken to jodhpur, where he succumbed to his injuries. despite the fact that the witnesses have tried to change the place of incident and have also made some embelishment in the story, the substratrum of the prosecution case does not fail. we, therefore, uphold the finding of the learned sessions judge that all the three accused, namely sonia, bhuriya and mst. chimo inflicted injuries to dalaram and bhanwarlal, as a result of which bhanwarlal died at jodhpur.13. the learned counsel for the appellants has next contended that the common intention of the appellants was not to cause the death of bhanwar lal or dalaram and, therefore, the provision of section 34 ipc would not be attracted and their conviction for the offence under sections 302 and 307 read with section 34 ipc is not sustainable. there is force in the contention of the counsel for the appellants. the accused and the injured are relatives. quite an insignificant and petty matter has caused the present incident. the injuries of bhanwarlal and dalaram have all been caused by a blunt weapon. the common intention of the accused in inflicting the injuries to bhanwarlal and dalaram was not to cause their death but to give a severe beating first to dala rain and subsequently to bhanwarlal when he intervened. it is not clear from the evidence who out of the three accused appellants caused the fatal injury on the head of deceased bhanwarlal. none of the accused can, therefore, be held guilty for the offence under section 302 or 307 read with section 34 ipc the accused can only be convicted for the offence under section 325 read with section 34 ipc.14. we, therefore, set aside the conviction of the appellants for the offences under sections 302 and 307 read with section 34 ipc and instead convict them for the offence under section 325 read with section 34 ipc. as regards sentence, the appellants sonia and bhuriya have already remained in custody during investigation, trial and after conviction for over 4 years and smt. chimo about 6 months. we, are, therefore, of the opinion that as regards imprisonment, the sentence already under-gone by them will meet the ends of justice. however, in addition to the sentence of imprisonment already undergone the accused, are sentenced to a fine of rs. 500/- each for the offence under section 325 read with section 34 ipc.15. in the result, the appeals are partly allowed. the conviction and sentence of the appellants for the offences under section 302 and section 307 read with section 34 ipc, are set aside. they are instead convicted for the offence under section 325 read with section 34 ipc are sentenced to the imprisonment already undergone by them, plus fine of rs. 500/- each and in default of payment of fine to undergo six months' further rigorous imprisonment. the appellants are given one month's time to deposit the fine. out of the amount so deposited or recovered as fine by the accused, a sum of rs. 1000/- will be paid to mst. gopi and a sum of rs 500/- will be paid to dalaram, as compensation.16. the appeals are disposed of accordingly.