LALIA Vs. STATE
LAWS(RAJ)-1952-11-12
HIGH COURT OF RAJASTHAN
Decided on November 14,1952

LALIA Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.)THIS is an appeal by Lalia, Mst. Rambha, Ratna and Bansi against their convictions and sentences by the learned Additional Sessions Judge, Baran, Ratna. Lalia and Mst. Rambha have been convicted under sec. 325 of the Indian Penal Code, and Bansi under sec 323 of the same Code, Lalia and Mst. Rambha have been sentenced to four years' rigorous imprisonment each and Ratna to one year's rigorous imprisonment, Bansi has been sentenced to six months' rigorous imprisonment.
(2.)THE prosecution case was that one Dhoolia, son of Kishna Bhil, was suspected by the accused,who belong to the same family, of having misbehaved with Bansi's wife a few years back. Dhoolia consequently found it difficult for him to remain in safety in village Tailni, where he resided, and which was also the residence of the accused. He, therefore, shifted himself to Moharajpura in Madhya Bharat to avoid any incident from the side of the accused, Dhoolia would, however, often come to village. Tailni to see his parents. On the 25th June, 1950, Dhoolia happened to be in Tailni, and he visited Dhoolia Chaukidar at his house sometime in the evening. THE accused came to know about the presence of Dhoolia in the village Bansi accused with his father Mohana consequently went to the house of Dhulia Chaukidar, and asked him to detain Dhoolia son of Kishna, because they intended to produce him before the police on account of his misbehaviour. Mohan and Bansi thereafter left the place, but only a little after Bansi repaired to the house of Dhulia Chaukidar with a lohangi (iron-shod stick), and gave several blows with it to Dhoolia and his father Kishna, who had arrived there in the meanwhile. THEn came Ratna, who if another son of Mohana, also with a lohangi, and inflicted injuries with it on Dhoolia and Kishna. Lastly came Lalia, another son of Mohana, with a pharsi, and when Mst. Bhonri, wife of Kishna, came there, raising an alarm to save her husband Kishna and her son Dhoolia, she was struck with the pharsi on her head and chest by Lalia, as a result of which she fell down on the ground, THEreafter, cms Mst. Rambha, the wife of Mohana, on the scene, and twisted the neck of Mst. Bhonri by means of hair, and sat on her breast, and struck her with a stone. Mst. Bhonri became unconscious, and all the accused left the place. Lalia, who was the last to fly, was seen running from the place by Mohan S/o Ram Kishan, who snatched away the pharsi from his hand. Amra Chamar with Daulata P. W. 4 proceeded to the police station Kariya Hat the evening to make a report. THEy were, however, told that the report would be recorded when the injured woman would be brought to the police station. THEy, therefore, came back, and reaching village Tailni next morning found Mst. Bhonri dead. In the company of Gorilal, Daulata again went to the police station, where first information report was got recorded by Gorilal at about 5 P. M. It was mentioned in the report that Mst Bhonri had been murdered by the four accused in the company of some others by means of lohangi and gandasa. This at last roused the police to action, and investigation started. Pharsi which is alleged to have been in the possession of Lalia at the time of the occurrence, was seized by the police, as also a piece of stone with which Mst. Rambha is said to have struck Mst. Bhonri. THE clothes of the injured were also seized. Dhoolia and Kishna were subjected to medical examination and the dead body of Mst. Bhonri to post mortem examination. THE case was challan-ed under sec. 302 read with sec. 109 of the Indian Penal Code in the court of the Sub-Divisional Magistrate, Chhabra against Ratna, Bansi, Lalia, Mst. Rambha, Mohana and one Raghunath. Raghunath was. however, discharged by the Committing Magistrate, and the remaining accused were committed to stand their trial before the Additional Sessions Judge, Baran - Ratna, Bansi, Lalia, and Mst. Rambha under secs. 325 and 148 of the Indian Penal Code, and Mohana under secs. 325/109 and 148 of the same Code. THE learned Additional Sessions Judge amended the charge-sheet, and charged Lalia and Mst. Rambha under sec. 304 instead of sec. 325, and Mohana under sec. 304 read with sec. 109.
All the accused denied the charge, and pleaded that they did not visit the place of occurrence on the date of occurrence. Bansi had, however, admitted in the Committing Magistrate' Court that he had gone to the house of Dhalia Chaukidar at the time of the alleged occurrence, and gave a lathi blow to to Dhoolia son of Kishna, because the latter had struck him saying that he was his enemy.

The learned Additional Sessions Judge was not satisfied that any offence was made out against Mohana. He found that the only offence which was made out against Mst. Rambha, Lalia and Ratna was that of causing grievous hurt under sec. 325. and against Bansi under sec. 323, He convicted the four accused accordingly, and sentenced them as mentioned above. Mohana was acquitted.

The four accused, who have been convicted, have come in appeal to this court. It was argued by Mr. H. M. Mukerjee on behalf of the appellants that the prosecution evidence was unreliable. All the eye-witnesses were in one way or the other related to Kishna and Dhoolia. In the first information report it was mentioned that all the four appellants, along with a few others,, killed Mst. Bhonri with lohangi and gandasa. At the trial it was given out that Dhoolia and Kishna were beaten by Bansi and Ratna with lohangis, and Mst. Bhonri was assaulted by Lalia with a pharsi, and Mst. Rambha twisted Mst. Bhonri's neck, and struck her with stones on her breast. All this story was an after-thought, and was developed at the trial. It was further argued that according to the evidence of Dhoolia himself no fracture of his ulna bone was caused by any blow given by Ratna. It was argued in the case of Lalia that he was a mere child, whose age was given before the committing magistrate as 6 or 8 years, although at the trial it was given out to be 16 years. Therefore, even if it held that he caused injuries to Mst. Bhonri, as alleged by the prosecution, he ought to have been treated much less severally in the matter of sentence.

On behalf of the prosecution it was argued by Mr. R. A. Gupta that there was direct evidence to prove that Mst. Bhonri was struck by Lalia by pharsi (gandasa) and Mst, Rambha twisted her neck and struck her with stone. Similar argument was advanced in the case of Dhoolia and Kishna. As regards the difference between the version in the first information report and at the trial, it was argued that the police report contained only a very brief information to set the law in motion. The fact that it did not contain the details given at the trial does not make the evidence of the prosecution witnesses un-trust-worthy. It was also argued that the makers of the police report were not confronted with it at the trial, and so no advantage can be taken of statements in the police report.

I have considered the arguments of both the learned counsel. The direct evidence in the case consists of the statements of Kishna, P. W. I, Daulat Ram, P. W. 4, Dhoolia, P. W. 6, Mohana, P. W. 7, Gonial, P. W. 8, Dhulia Chaukidar, P. W. 10 It has been deposed by Kishna that the accused, out of whom three are Mohana's sons, and one is his wife, bear, enmity with Dhoolia, because he was suspected of having had misbehaved with Bansi's wife. Dhoolia was, therefore obliged to leave the village Tailni and shift to village Moharajpura in Madhya Bharat, from where he would often come to see his parents in village Tailni. On the 25th of June, 1950, the date of occurrence, at about sunset, Dhoolia was present in village Tailni at the house of Dhulia Chaukidar. The party of the accused came to know of Dholia's presence, and at first Mohna and his son Bansi accused went to Dhulia Chaukidar's house, and demanded the detention of Dhoolia, so that he might be produced before the police. After that Mohana and Bansi left the place, but shortly after Bansi alone came back with lohangi to his hand. He gave one blow with it on Dhoolia's head and one on Kishna's back. Thereafter came (Ratna with another lohangi, and beat the witness as well as his son Dhoolia with it. Then came Rugha, who struck one lathi blow to the witness. Mst. Bhonri, wife of the witness, came on the scene in the meanwhile, and raised a hue and cry, at which Lalia. who had by that time arrived on the spot with a pharsi, struck from the reverse side of the blade on her head, as a result of which she fell down. Lalia again gave another pharsi blow from the reverse side on Mst. Bhonri's breast. Mst. Rambha, Lalia's mother, also came on the spot, and twisted the neck of Mst. Bhonri by holding her hair, and also inflicted a few injuries on Mst. Bhonri's breast by a piece of stone. The pharsi, with which Dalia had assailed Mst. Bhonri, was snatched by Kohana. Mst. Bhonri became immediately unconscious on account of the violence done to her, and died next morning. The statement of Kishna is supported by the statement of Daulat Ram, P. W. 4, so far as violence done to Mst. Bhonri by Lalia and Mst. Rambha is concerned He also stated that he had gone to the police station with Amra Chamar to make a report on the very day of the occurrence, but the same was not recorded, as they were told that the injured woman should be brought to police station first. This witness does not say that he was present when Kishna and Dhoolia were beaten, although he says that he found them on the spot with certain fresh injuries, Dhoolia, P. W. 6, who was himself injured, has supported the statement of Kishna in full, but he has stated that no bone of his was fractured by the lohangi blow, which was given on his left hand by Ratna. Dhulia Chaukidar is P. W. 10 and he has also supported Kishna in full. P. W. 8, Gori Lal, has also supported Kishna in full. P. W. 7, statement of Kishna. There is another witness Radhia, P. W. 2, who did not see the actual marpit, but he has stated that when he came to the spot, he fund Lalia accused running with a ghandasa, which Mohana was trying to snatch from him. He has also stated that he found Mst. Bhonri injured and unconscious on the spot, and that he also found Mohan son of Ram Kishan, Gorilal, Dhulia Chaukidar, and Daulat Ram on the spot, when he reached there. It has been argued by the learned counsel for the appellants that all these witnesses are, more or less, related to the deceased, and therefore, their evidence should not have been believed by the lower court. It is true that Dau:at Ram, Gori Lal and Dhulia Chaukidnr are in some way or another related to the deceased. Mohan Lal, however, is not shown to be related in any way to her. There is no reason why he should have given false evidence against the accused. It is a fact that Mst. Bhonri was assaulted, and it has also been established by medical evidence that her left parietal and adjoining temporal bones were fractured. There was collection of blood plasma below membrane. The left portion of the brain had been depressed in the middle, and showed haemorrhage. Anterior, middle and posterior parts of the base of the skull showed fracture. First, second and third clavicle vertebrae were also fractured, and the spinal cord was crushed in its upper part. In the opinion of the medical examiner, the death was due to multiple skull fractures - intracranial haemorrhage resulting from injuries caused by some blunt weapon. Thus according to the medical evidence, the injuries on the skull as well as neck are proved to be the cause of Mst. Bhonri's death. According to the direct evidence, the injury to the neck was caused by Mst. Rambha, and to the skull by Lalia. There does not appear to be any valid reason to disbelieve this direct evidence, especially that of Mohan Lal. Something could have been said if the statements of the other eye-witnesses stood alone, but where read in conjunction with the evidence of Mohan Lal, there is no reason to disbelieve that evidence too so far as the parts of Lalia and Mst. Rambha in assaulting Mst. Bhonri are concerned. The accused rely mostly on the first information report, and it has been argued that there was no mention therein that Mst. Rambha twisted the neck of the deceased. True, it is not specifically mentioned therein, but Mst. Rambha has been stated to be one of the assailants. It cannot, therefore, be said that the inclusion of Mst. Rambha's name was an after-thought. It cannot be expected from backward people like Gauri Lal and Daulatram, who made the report, that they would give all the details in the first information report at the time of making it. The first information report is meant to set the law in motion, and if in certain cases full details of the crime are not given, merely on that basis it would not be justifiable to discard the direct testimony of the witnesses Then if the accused wanted to make any use of the discrepancy between the first information report and the statements of the prosecution witnesses, it was their duty to confront those witnesses with the statements in the first information report, so that there might have been opportunity to explain the seeming discrepancy. There is no justification in not confronting the witnesses when they are in the witness-box with their previous statements, and then to say that there is some difference between their statements at the trial and their previous statements. I am not satisfied by the argument of the learned counsel for the appellants that the prosecution evidence should be discarded, because full details are not given in the first information report It was next argued that according to the evidence of Dr. Pritam Singh, who examined Mst. Bhonri's dead body, it was not possible for a woman of Mst. Rambha's physique to twist the neck of Mst. Bhonri, who was a stouter woman. First of all, it cannot be said that Mst. Rambha was in the same condition of health at the time of the occurrence as she was at the time of the trial. Naturally, the worry and anxiety of a criminal trial tell upon the health of the accused, and she might have grown weaker at the time she was shown to the doctor in the witness box. Moreover. Mst. Bhonri had already fallen down under a violent blow from the pharsi, and it could not he expected that she could exert herself in that condition in the same manner as she could have done if she had not been hit. There is, therefore, no improbability in Mst. Rambha being able to twist the neck of Mst. Bhonri in the manner stated by the prosecution. In agreement with the learned Sessions Judge, before whom the witnesses were examined I am fully satisfied that Mst. Rambha twisted the neck of Mst Bhonri after she had fallen down, and Lalia gave pharsi (gandasi) blow with the reverse side of the blade to Mst. Bhonri.

As regards Bansi, it is fully borne out bo the prosecution evidence that he caused simple injuries to Kishna and Dhoolia. His name is also mentioned in the first information report, although it is not specifically stated as to which of the persons of the complainant's party received injuries at his hands. I see no reason to disbelieve the prosecution evidence so far as Bansi accused is concerned.

Coming to the case of Ratna, he is also proved to have caused injuries both to Dhoolia and Kishna. The prosecution case, however, is that one of the grievous injuries received by Dhoolia was on his hand. The statement of Dhoolia, however, throws some doubt upon this. He has stated that no bone of his was fractured by the blow given to him by Ratna. Of course. Dhoolia's left ulna bone was found fractured at the time of his medical examination, but it is in prosecution evidence that both Bansi and Ratna gave beating to Dhoolia. It is, therefore, doubtful as to which of these two is responsible for causing the grievous injury. To my mind, he ought to have been given the benefit of doubt, and ought to have been convicted under sec. 323 of the Indian Penal Code only.

Coming to the question of sentence, the sentence passed on Ratna by the learned Additional Sessions Judge would not, of course, be proper, when his offence is reduced to that under sec. 323. As regards Lalia, although he was shown to be six years or eight years old in his statement before the Committing Magistrate, at the trial he gave his age to be 16 years. It is difficult to believe that he was only a boy of six or eight years. If no, the defence would have at once come forward with a plea that being less than seven years at the time of the occurrence, he could not be punished for his act. I think that the age given by him at the the trial is more correct. But even then, he could be only 14 years old when the occurrence took place. The only thing that has been proved against him is that he dealt a pharsi blow from the reverse side of the blade to Mst. Bhonri. It is possible that seeing that his elder brothers were engaged in the marpit, his passions were also accused, and he dealt a pharsi blow to Mst. Bhonri, who was raising hue and cry. He did not give a blow from the blade side, and it shows that probably the harm caused to Mst. Bhonri was more than this young boy intended. He is said to have been in jail from 19th March 1952, when he was convicted by the lower court. Considering his young age and the circumstances under which he caused injury to Mst. Bhonri, I think it proper that his sentence be reduced to one year's rigorous imprisonment only. As regards Mst. Rambha her act was most heartless. She twisted the neck of a woman who had already fallen down under a violent blow by her son Lalia. So far as she is concerned, I do not find any justification for reduction of sentence. 11. The appeal, so far as Mst. Rambha and Bansi are concerned, is dismissed. Their convictions and sentences are maintained. Lalia's conviction under sec. 325 is maintained, but his sentence is reduced to one year's rigorous imprisonment The conviction of Ratna is altered from one under sec. 325 to that under sec. 323 of the Indian Penal Code, and his sentence is reduced to that already undergone. Ratna shall be released at once, if he is not required in connection with any other case. .



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