Banshi Lal vs State of Rajasthan

M.C. Sharma, J.—This appeal has been filed by the accused appellant Banshilal (now dead) against the judgment and order of conviction and sentence dated 9.5.1988 passed by Additional Sessions Judge No. 2 Ajmer in Sessions Case No. 58/1986 (112/1986) whereby the accused appellant Banshilal was convicted for the offence u/s 304 Part II and sentenced to three years rigorous imprisonment and fine of Rs. 1000/- and in default of payment to further suffer six months additional simple imprisonment. It may be mentioned that the appellant Banshilal died on 17.3.2008 and his wife wants to represent the present appeal and for that she filed an application dated 13.1.2009 for allowing her to represent her husband in the appeal and this court allowed the said application vide order dated 10.2.2009. This court passed the following order:

"Heard on application. It is prayed in the application that appellant has expired and in his place his wife may be permitted to pursue the legal remedy. No objection has been raised from other side. The application stands allowed. List on 18.2.2009."

In these circumstances the appellant who died on 17.3.2008 now represented by his wife Smt. Geetadevi, is heard through her counsel Mr. O.S. Lakhawat as permitted by this court on 10.2.2009. The public prosecutor has also not raised any objection for pursuing the remedy. In view of the order of this court the counsel for Smt. Geeta Devi was heard on 15.5.2013. The Public Prosecutor was also heard on behalf of the State. After hearing both the counsel the judgment in this case was reserved.

Brief facts as per the case of the prosecution is that a written report was presented before the Police Station Roopangarh by Smt. Manju wife of Dhan. Prakash by caste Dholi resident of village Roopangarh Distt. Ajmer. In the report it was stated that on 18.4.1986 on the day of Ramnavmi at about 11.30 p.m. when her mother in law was standing near her boundary wall and at that time accused Banshilal who is neighbour was also standing on his roof of his house, at that time Banshilal stated that why her mother in law is breaking his wall. Her mother in law stated that she is maintaining her wall. On this Banshi started abusing her mother in law. Upon this Banshi Lal''s son in law Jagdish and his daughter Narangi and his wife Geeta pelted stones on her mother in law and her mother in law received injuries. She further stated that she started hurting and other persons in the nearby Gopal and his mother in law Sohani and Pappu Dholi came and at that time her mother in law was bleeding from the head. All these persons taken her mother in law to Hospital. It was prayed that action to taken against above persons who have pelted stones on her mother in law and on account of which she received injuries on her head. Upon receiving the above report FIR No. 27/1986 was registered for the offence under Sections 336, 323 read with section 34 IPC. The police started usual investigation and during investigation Smt. Kanchan died and the case was converted to section 302 IPC and the accused Banshilal was arrested. The charge sheet was filed for the offence u/s 302 IPC against the accused appellant and thereafter the case was committed to the court of sessions. The Sessions Judge Ajmer transferred the said case to the court of Addl. Sessions Judge Ajmer. The trial Court framed charge sunder section 302 IPC and the accused denied the charge and claimed to be tried. The prosecution in support of its case examined 13 witnesses. The Statement of accused u/s 313 Cr.P.C. was recorded. After hearing both the sides the trial Court convicted the accused appellant for the offence u/s 304 Part II IPC as mentioned above.

Mr. O.S. Lakhawat, learned counsel appearing for Smt. Geeta Devi representing the appellant has stated that the judgment of conviction and sentence dated 9.5.1988 is illegal and contrary to the factual position on record. The learned counsel has argued that the trial court while considering the statements of the prosecution witnesses in the judgment of conviction and sentence have not properly considered their statements. The prosecution witnesses PW. 4 Gulab Mohammed and PW. 9 Satya Narain have stated that the accused appellant stated to Kanchan that why she is demolishing his wall but Kanchan has not answered about it and has not stopped demolishing the wall. It is clear from the statements of these witnesses that deceased Kanchan continued to demolish the wall of the accused appellant and created a mischievous position for safety of his house. PW. 3 and PW. 9 in their statements have stated that Kanchan first pelted stones at accused appellant and thereafter accused appellant pelted stones at her. The accused appellant pelted stones in his right of private defence. The trial Court has failed to consider that the accused appellant was duty bound to take proceedings against deceased Kanchan. The learned counsel has further placing reliance on section 97 IPC stated that every person has a right to defend his own body, and the body of any other person, against any offence affecting the human body and that the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. But the trial court has failed to consider this aspect of the case. The learned counsel has further argued that the right of the accused appellant u/s 233 Cr.P.C. of producing defence was not given to the accused appellant as no opportunity was afforded to the accused appellant during trial to defend his case. It was also argued that the accused appellant was working in the RSEB and if he is sentenced to the period of imprisonment and the benefit of provisions of the offenders Act are not given to him it will affect the service rendered by him in the RSEB. In these circumstances it was prayed that the accused appellant may be awarded to him may also be quashed.

Mr. Peeyush Kumar, Public Prosecutor appearing for the State has stated that the trial Court has considered the statements of the witnesses and the material available on record and the judgment of conviction and sentence was rightly passed.

I have heard the learned counsel for the parties and has also gone through the judgment of conviction and sentence passed by the trial Court. Before proceeding further it is necessary to have a look at the relevant statements of the prosecution witnesses and the material available on record.

PW. 1 Manju has stated in his statement thus:

In the written report (Ex. D. 1) submitted to the police Manju stated that-

Smt. Manju in her statement recorded u/s 161 on 19.4.86 by the ASI stated thus-

From the statement of Manju (PW. 1) recorded in the court and the written report (Ex. D. 1) and statement recorded by the ASI u/s 161 Cr.P.C. on 19.4.86, it is clear that Banshi, Banshi''s wife, his daughter and son in law pelted stones and deceased Kanchan fell from the wall in the Pakka Chowk of Chuna and on account of that she received injury on her head. At that time only Gopal (PW. 2),his mother in law Sohani and Pappu came when Kanchan fell down in Pakka Chowk of Chuna.

PW. 2 Gopal in his statement stated thus-

From his statement in the court though his name was in the written report (Ex. D. 1) and (Ex. D. 2) stated that he was informed by Guloji (PW.) that Banshi pelted stone at Dholan (Kanchan).

PW. 3 Manu was declared hostile. He stated in his statement as under:

PW. 4 Gulab Mohammed in his statement stated as under:

PW. 4 Gulab Mohammed in his statement u/s 161 Cr.P.C. (Ex. D. 3) recorded on 20.4.1986 by the ASI stated thus-

Name of Gulab Mohammed (PW. 4) is not shown in the written report or in the statement of Manju u/s 161 recorded on 19.4.1986 and it is first time in his statement recorded u/s 161 Cr.P.C. (Ex. D. 3) by the ASI on 20.4.86 he stated that Bansi pelted stones first it hit lower portion of the abdomen and thereafter second stone pelted by Banshi hit her head. He has also stated in his statement that Kanchan fell in the Pakka Chowk of Chuna after receiving injuries. It is necessary to see the injury report and the post mortem report showing the injuries.

The injury report Ex. P. 8 showing the injuries received by injured Kanchan at the time of examination by the doctor at Roopangarh Hospital read as under:

Lacerated wound fresh bleeding plus margin zig-gag 3 c.m. x 1 c.m. x 1/4 c.m. On anterior part of scalp. Advised x-ray

Bruise with swelling 2 c.m. x 2 c.m. Lower 1/4th of left fore arm. Advised x ray

Swelling with bruise 1 cm. x 1 c.m. Below left eye

Swelling 1 c.m. x 1 cm. upper anterior part of gums fresh bleeding.

The injury report did not show any injury on the lower portion of abdomen of Kanchan. Injury No. 1 was found on Rt. Frontal region, Injury No. 2 was found on left side of neck, Injury No. 3 was found on left parietal region, injury No. 4 was found left frontal region with haematoma, Injury No. 5 was on left frontal region outer to injury No. 4, Injury No. 6 was on Rt. Parotid region and injury No. 7 was bone deep on back of Right forearm on its, injury No. 8 was on dorsum of Rt. Hand, Injury No. 9 were two stitched wounds on medial side of left leg lower 1/4. Cause of death was shown coma due to compression of brain matter as a result of extradural hemorrhage caused by head injury.

From the injury report and the post mortem report it is clear that Kanchan did not receive any injury on the lower part of the abdomen (Kamar). Thus it is clear that Gulab Mohammed was not present at the scene of occurrence and in these circumstances his name was not shown in the written report (Ex. D. 1) and in the statement u/s 161 Cr.P.C. of Manju (Ex. D. 2) recorded by the ASI on 19.4.1986. His testimony given before the court cannot be believed.

PW. 4 - Dhan Prakash has stated in his statement as under:-

This witness was not present on the day of occurrence and when he reached at the Hospital his wife stated that Banshi, his wife Geeta, son in law Jagdish and daughter Narangi pelted stone at her mother as stated in the written report (Ex. D. 1) and statement of Manju (Ex. D. 2).

PW. 6 Dr. S.S. Asnani, in his statement stated that he has examined the injuries on the person of Kanchan on 18.4.1986 and he found four injuries on her body. In his cross examination he has stated that the injuries in Ex. P. 8 can be caused even by fall also.

It has been admitted by Manju (PW. 1) in his statement before the court and in the written report and the statement u/s 161 Cr.P.C. and Gulab Mohammed that Kanchan fell in the Pakka Chowk of Chuna and it is at that time she received the injuries on head and it is proved in the statement of Doctor PW. 5 Dr. Asnani that such injuries can be caused even by fall.

PW. 7 Vijay Singh stated about the photos of incident place taken by him on 18.4.1986 as per the instructions of the police.

PW. 8 Pappu in his statement stated as under:

Pappu whose name was in the written report (Ex. D. 1) and in the statement of Manju (Ex. D. 2) himself stated in the court statement that he was not present at the time of incident.

PW. 9 Satyanarain in his statement stated as under:

Satyanarain has stated that he met Gul Mohammed (PW. 4) outside the house of Gul Mohammed. Since the presence of Gulab Mohammed is doubtful and his statement based on the version of Gulab Mohammed cannot be believed on the ground that he also stated that Kanchan received on the lower portion of abdomen where there is no such injury on the body of Kanchan in the post mortem report and in the injury report which has been proved by doctor in his statement before the court.

PW. 10 Mool Singh proved Ex. P/2 seizure memo of clothes of Kanchan over which he puts his signature A to B. He has also stated that Ex. D/1 which is written report submitted by Manju to the police written by him as stated by Manju. He also proved Ex. P1 Panchayatnama which bears his signature A to B.

PW. 11 Karan Singh in his statement stated about the written report submitted by him before him when he was posted as Head Constable at Police Station Roopangarh. He has also proved Ex. P. 14 entries in the register which bears his signature A to B.

PW. 12 Kheem Singh, ASI posted at Roopangarh proved Ex. P. 3, Naksha Moka, which bears his signature A to B, Ex. P. 4 seizure memo which bears his signature C to D, Ex. P. 5 seizure memo of blood stained Chuna which bears his signature C to D, Ex. P. 6 seizure memo of pieces of Glass Bangles of Kanchan, which bears his signature C to D, Ex. P. 7 seizure memo of two stones which bears his signature C to D, Ex. P. 1 seizure memo of Lookdi (sari), which bears his signature C to D, Ex. P. 3 injury report, Statement of Manju Ex. D. 2, Ex. D3 statement of Gulab Singh and Ex. P. 15 report of FSL. He has stated in his statement he has recorded the statements of three persons and thereafter handed over the file to SHO.

PW. 13 Safakat Ali, Constable stated about the handing over of articles for examination by the FSL and to which he brought Ex. P. 16 acknowledgement receipt No. 2639.

I have critically examined the judgment of the trial Court, statements of the prosecution witnesses and the documents exhibited by the prosecution in support of its case. The trial court has not considered the statements of the witnesses properly which are not corroborated by the medical evidence and the documents like injury report and post mortem report and the written report of the complainant Manju submitted to the police officials at Hospital and the same was proved in evidence by PW. 10 Mool Singh which is manuscript of his own. The judgment of trial court in convicting the accused appellant for the offence u/s 304 Part II IPC cannot be sustained and it deserves to be quashed. The sentence awarded to the accused appellant also deserves to be quashed.

For the aforesaid reasons the appeal filed by the accused appellant is allowed. The judgment of conviction and sentence dated 9.5.1988 passed in Sessions Case No. 58/1986 (12/1986) by the Addl. Sessions Judge No. 2 Ajmer convicting the accused appellant for the offence u/s 304 Part II IPC and sentencing him to the period of 3 years rigorous imprisonment and fine of Rs. 1,000/- is quashed and set aside. The accused appellant has already died 17.3.2008. His bail bonds stands cancelled.