Sunil Kumar Garg, J. - (1.) This appeal has been filed by the accused-appellants against judgment and order dated 29.9.2001 passed by the learned Sessions Judge, Jhunjhunu in Sessions Case No. 115/97 by which he convicted and sentenced the accused-appellants in the following manner:- JUDGEMENT_43_LAWS(RAJ)10_2004_1.html All the aforesaid substantive sentences were ordered to run concurrently.
(2.) It arsies in the following circumstances:- On 17.6.1997, PW-18 Sajjan Singh, SI for the Police Station Nawalgarh District Jhunjhunu received a telephonic message from the Government Hospital, Nawalgarh that four persons in injured condition were admitted in the hospital and on the basis of that information, he rushed towards the hospital where he found four persons in injured condition and thereafter, PW-7 Shankerlal gave written report Ex.P/8 on 17.6.1997 at about 3.00 a.m. in the morning to PW-18 Sajjan Singh stating inter alia that on 16.6.1997 at about 11.45 p.m., outside the guwadi of PW-1 Om Prakash, accused-appellants-Devkaran, Dayachand (both sons of Baluram), Tejpal (son of accused-appellant-Devkaran) and Parmanand (son of accused-appellant-Dayachand) started abusing PW-1 Om Prakash and upon this, PW-1 Om Prakash asked them not to do so. Thereafter, all the accused-appellants with an intention to murder PW-1 Om Prakash, Pokarram (hereinafter referred to as 'the deceased No. 1'), Sri Ram (hereinafter referred to as 'the deceased No. 2') and PW-2 Subhkaran, who were harijan by caste, made murderous attack with knife etc. on them. It was further stated in the report Ex.P/8 by PW-7 Shankerlal that in their village, there was a marriage of bhanja of Bhanaram and Narayanram and in that, ceremonies of bhat were performed by both of them and PW-1 Om Prakash also went there and at that time, some altercations had taken place between accused- appellant-Devkaran and PW-1 Om Prakash and for that, the accused-appellant were having enmity with the complainant party and that is why, they caused injuries to them. It was further stated in the report Ex.P/8 by PW-7 Shankerlal that the alleged incident was further witnessed by his son PW-11 Umed, PW-9 Shivkaran, PW-10 Birbal and PW-6 Hariram. It was further stated in the report Ex.P/8 by, PW-7 Shankerlal that since condition of all the aforesaid four persons i.e. PW-1 Om Prakash, PW-2 Subhkaran, deceased No. 1 Pokarram and deceased No. 2 Sri Ram was serious one, they were taken to the hospital. It was further stated in the report Ex.P/8 that since the complainant party belonged to scheduled caste category being by caste chamar and the accused party was Jat by caste, therefore, accused party had enmity with the complainant party. On that report Ex.P/8, police registered the case and chalked out regular FIR Ex.P/41 and started investigation. During investigation, PW-26 Rajendra Singh prepared the site plan Ex.P/9. The deceased No. 1-Pokarram was got medically examined on 17.6.1997 by PW-15 Dr. G.C. Gupta and his injury report is Ex.P/36, which shows that he received five injuries, out of which, injuries No. 1 & 2 were caused by sharp-edged weapon and the remaining three injuries were caused by blunt object. The X-ray report of deceased No. 1-Pokarram is Ex.P/23 and after seeing the X-ray report, PW-15 Dr. G.C. Gupta opined that his injury No. 2 was grievous and dangerous to life. It may be stated here that deceased No. 1-Pokarram died on 17.6.1997 in the hospital and thereafter, post-mortem of the dead body of the deceased No. 1-Pokarram was got conducted by PW- 23 Dr. Dharmendra Kumar Sharma and the post-mortem report is Ex.P/49, which shows that he received five injuries and the cause of death was shock brought about as a result of ante-mortem injuries to viscera and the same were found sufficient to cause death in ordinary course of nature. The deceased No. 2-Sri Ram was also got medically examined by PW-15 Dr. G.C. Gupta and his injury report is Ex.P/37, which shows that he received two injuries, which were caused by sharp-edged weapon. The X-ray report of deceased No. 2-Sri Ram is Ex.P/20 and after seeing the X-ray report, PW-15 Dr. G.C. Gupta opined that his injury No. 1 was grievous and dangerous to life. It may be stated here that deceased No. 2-Sri Ram died on 14.10.1997 and the post-mortem of the dead body of the deceased No. 2 was got conducted by PW-27 Dr. Moideen Qureshi and the post-mortem report is Ex.P/45 which shows that he received four injuries and the cause of death was septicemia shock brought about as a result of ante-mortem abdominal lesions. The operation notes, treatment slip and discharge certificate of deceased No. 2 Sri Ram are Ex.P/50, Ex.P/51 & Ex.P/52 respectively and for that, PW-24 Dr. Mukesh Kumar Sharma has been produced by the prosecution. PW-1 Om Prakash was also got medically examined by PW-15 Dr. G.C. Gupta and his injury report is Ex.P/38, which shows that he received four injuries and the injury No. 1 was caused by blunt object and the remaining three injuries were caused by sharp-edged weapon. The injuries No. 2 & 4 were found simple in nature and for injuries No. 1 & 3, X-ray was advised and after seeing the X-ray report, it was opined by Dr. G.C. Gupta, PW-15 that injuries No. 1 & 3 were also simple in nature. PW-2 Subhkaran was also got medically examined by PW-15 Dr. G.C. Gupta and his injury report is Ex.P/39, which shows that he received three injuries, out of which, injuries No. 1 & 3 were caused by sharp-edged weapon and the injury No. 2 was caused by blunt object. The injury No. 3 was found simple in nature and for injuries No. 1 & 2, X-ray was advised and after seeing X-ray report Ex.P/28, the injuries No. 1 & 2 were also found simple in nature. During investigation, the accused-appellants-Parmanand, Tejpal, Dayachand and Devkaran were got arrested by PW-25 Kasiram on 19.6.1997 through arrest memos Ex.P/53, Ex.P/55, Ex.P/57 and Ex.P/59, respectively. During investigation, the accused-appellant-Parmanand gave information Ex.P/54 about the recovery of danda/lathi (article 2) and in pursuance of the said information Ex.P/54, the accused- appellant- Parmanand got recovered danda/lathi (article 2) and the same was seized by PW- 25 Kasiram through fard Ex.P/2 in presence of PW-6 Hariram and PW- 13 Ramkaran and the same was found stained with blood. During investigation, the accused-appellant-Tejpal also gave information Ex.P/56 about the recovery of knife (article 3) and in pursuance of the said information Ex.P/56, the accused- appellant-Tejpal got recovered knife (article 3) and the same was seized by PW-25 Kasiram through fard Ex.P/6 in presence of PW-6 Hariram and PW-13 Ramkaran and the same was found stained with blood. During investigation, the accused-appellant-Dayachand also gave information Ex.P/58 about the recovery of bhala (article 1) and in pursuance of the said information Ex.P/58, the accused- appellant- Dayachand got recovered bhala (article 1) and the same was seized by PW-25 Kasiram through fard Ex.P/7 in presence of PW-6 Hariram and PW-13 Ramkaran and the same was found stained with blood. During investigation, the accused-appellant-Devkaran also gave information Ex.P/60 about the recovery of katar/gupti (article 4) and in pursuance of the said information Ex.P/60, the accused-appellant- Devkaran got recovered katar/gupti (article 4) and the same was seized by PW- 25 Kasiram through fard Ex.P/4 in presence of PW-6 Hariram and PW-13 Ramkaran and the same was found stained with blood. The recovered articles were sent to FSL and the FSL report is Ex.P/61. It may be stated here that for the same incident, a report was also lodged by accused-appellant-Devkaran on 17.6.1997 in the police station Nawalgarh and the same is Ex.D/5 and upon this, FIR No. 168/97 was chalked out and case for the offence u/ss. 452, 147, 149 & 323 IPC was got registered. The injury report of accused-appellant-Devkaran is Ex.D/7, which shows that he received ten simple injuries by blunt object. The injury report of accused-appellant-Tejpal is Ex.D/8, which shows that he received four simple injuries by blunt object. After usual investigation, police submitted challan for the offence u/s. 302 for murder of deceased No. 1-Pokarram and deceased No. 2-Sri Ram, 326, 307, 324, 323, 341 & 34 IPC and Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the SC/ST Act') against the accused-appellants in the Court of Magistrate and from where the case was committed to the Court of Session. On 23.2.1998, the learned Special Judge, SC/ST Cases, Jhunjhunu framed the charges for the offence u/ss. 302/34, 307/34, 341, 324 IPC and 3(2)(v) of the SC/ST Act against the accused-appellants. The charges were read over and explained to the accused-appellants. They pleaded not guilty and claimed trial. It may be stated here that initially the accused-appellants were charged for the offence u/s. 307/34 IPC, but the charge for the offence u/s. 307/34 IPC was deleted by the learned Sessions Judge, Jhunjhunu vide order dated 26.3.1998. During the course of trial, the prosecution got examined as many as 27 witnesses and exhibited several documents. Thereafter, statements of the accused-appellants u/s. 313 Cr.P.C. were recorded. In his statement recorded u/s. 313 Cr.P.C., the accused-appellant- Devkaran took the plea that on the fateful night, PW-1 Om Prakash and PW-2 Subhkaran and both deceased No. 1- Pokarram and deceased No. 2- Sri Ram came to his house to beat him and they caused injuries to him and accused-appellant-Tejpal and for that, he lodged the report in the police station Nawalgarh and the same can be identified as Ex.D/5. In defence, DW-1 Dr. Devendra Singh Choudhary was produced to prove the injury reports Ex.D/7 and Ex.D/8 of accused-appellants-Devkaran and Tejpal respectively. After conclusion of trial, the learned Sessions Judge, Jhunjhunu through impugned judgment and order dated 29.9.2001 convicted and sentenced the accused-appellants in the manner as indicated above holding inter alia : (i) That since PW-1 Om Prakash and PW-2 Subhkaran were injured witnesses, therefore, they were treated by the learned trial Judge as eye-witnesses of the occurrence. (ii) That deceased No. 1-Pokarram died because of the injuries received by him and similarly, deceased No. 2-Sri Ram though died after four months of the incident, but he also died because of the injuries received by him and thus, death of both deceased was not found natural one. (iii) That both deceased received injuries at the hands of the accused-appellant-Devkaran by gupti and also at the hands of accused-appellant-Dayachand by bhala and the accused-appellant- Parmanand caused lathi blows to the deceased No. 1-Pokarram. The accused-appellant-Tejpal also caused injuries to PW-1 Om Prakash with knife and the accused-appellant-Parmanand also caused lathi blows to PW-1 Om Prakash and PW-2 Subhkaran. The accused-appellant-Tej pal also gave knife blows on the person of PW-2 Subhkaran. Thus, all the accused-appellants took part in beating to both deceased as well as to injured witnesses PW-1 Om Prakash and PW-2 Sub- hkaran. (iv) That case of the accused-appellants that they caused injuries in self-defence was rejected by the learned trial Judge. (v) That the fact that at the time of alleged incident, the accused-appellant-Devkaran was armed with gupti, the accused-appellant-Dayachand was armed with bhala, the accused-appellant- Tejpal was armed with knife and the accused-appellant-Parmanand was having lathi in his hand, was found well established and proved by the learned trial Judge. (vi) That all accused-appellants caused injuries to both deceased as well as to PW-1 Om Prakash and PW-2 Subhkaran in furtherance of common intention and therefore, the learned trial Judge came to the conclusion that Section 34 IPC was applicable in the present case and thus, he convicted the accused-appellants with the aid of Section 34 IPC. (vii) That the fact of recovery of weapons at the instance of accused-appellants was also found proved and thus,it also corroborated the prosecution story. (viii) That no doubt one eye-witness Sitaram was not produced by the prosecution, but according to the learned trial judge, it would not affect the prosecution case and thus, non-production of Sitaram was not found fatal to the prosecution case. (ix) That argument that PW-1 Om Prakash and PW-2 Subhkaran were interested witnesses being relatives of deceased and therefore, their evidence was not believable, was also rejected by the learned trial Judge. (x) That so far as the injuries of accused-appellants- Devkaran and Tejpal were concerned, the learned trial Judge came to the conclusion that since they were simple and trivial in nature, therefore, case of the prosecution was not affected at all even though these injuries were not explained by the prosecution witnesses. (xi) That since both deceased and PW-1 Om Prakash and PW-2 Subhkaran were members of scheduled caste category, therefore, charge for the offence u/s. 3(2)(v) of SC/ST Act was also found proved against the accused-appellants. Aggrieved from the said judgment and order dated 29.9.2001 passed by the learned Sessions Judge, Jhunjhunu, the accused-appellants have preferred this appeal.
(3.) In this appeal, the following submissions have been made by the learned counsel for the accused-appellants : (i) That deceased No. 1-Pokarram died on 17.6.1997 and deceased No. 2-Sri Ram expired on 14.10.1997 after about four months of the alleged incident and before that, he was discharged from the hospital and cause of his death was septicemia, therefore, death of deceased No. 2 Sri Ram could not be said to be the direct result of injuries sustained by him. Hence, findings of conviction recorded by the learned trial Judge against the accused-appellants for the offence u/s. 302/34 IPC cannot be sustained and liable to be set aside. (ii) That since PW-1 Om Prakash and PW-2 Subhkaran were interested witnesses being close relatives of deceased acid therefore, their evidence should have not been believed by the learned trial Judge. (iii) That since in this case accused-appellant-Devkaran received ten simple injuries and the accused-appellant-Tejpal also received four simple injuries and since above injuries have not been explained by the prosecution witnesses, therefore, from this point of view also, the accused-appellants are entitled to acquittal. (iv) That since accused-appellants-Parmanand and Dayachand have not received any injuries, therefore, their presence on the scene is doubtful and they have.been falsely implicated by the prosecution. (v) That the injuries, which were caused by the accused- appellant- Devkaran, were caused by him in his right of private defence and thus, right of private defence should have been accorded to him by the learned trial Judge and by not doing so, the learned trial Judge has failed to discharge his legal duties. (vi) That since the alleged incident had taken place all of a sudden, therefore, conviction of the accused-appellants with the aid of Section 34 IPC should not be sustained and the present case was a case of free fight. Therefore, from that point of view also, Section 34 IPC was wrongly applied by the learned trial Judge. Hence, it was submitted that the findings of conviction recorded by the learned trial Judge against the accused-appellants through impugned judgment and order cannot be sustained as they are wholly erroneous and perverse one and suffer from basic infirmity and illegality and the accused- appellants are entitled to acquittal.;