Dan Singh and Others vs State of Rajasthan and Others

Kanwaljit Singh Ahluwalia, J.—1. Shribhan son of Bhambhu on 30.6.2004 at about 8.30 or 9.00 A.M. in front of Tea Shop at Bus Stand of Village Dhadhren was caused injuries by Babu S/o. Shankar, Dan Singh S/o. Babu, Nehru S/o. Munna, Ratan S/o. Shankar, Dinesh S/o. Ratan and Khyal Bai w/o Babu.

Dr. Bharat Lal Meena (P.W.17) on 30.6.2004 at 11.00 A.M. examined Shribhan vide injury report (Ex. P.14). Injury report (Ex. P.14) is not legible. Dr. Bharat Lal Meena (P.W.17) in his deposition in court has given description and size of the injuries on the person of Shribhan. The said portion of deposition after translation is reproduced as below:--

"1. Incised wound on left leg, 7 x 1 1/2 cm.

Incised wound on left leg, anterior 4 x 1 cm.

Incised wound on left leg, medial, 4 x 1 cm.

Lacerated wound on face near nose, 1 x 1/2 cm.

Abrasion on left knee, 4 x 4 cm, 5 x 2 cm.

Incised wound on left thigh, 2 x 1 cm.

Abrasion on abdomen, left side, 4 x 3 cm.

Complain of pain, abrasion below abdomen, 4 x 1 cm.

Abrasion, 4 x 2 cm on abdomen."

A perusal of injuries reveals that injuries No. 1, 2 and 3 are on left leg, injury No. 4 is lacerated wound of 1 x 1/2 cm on nose, injury No. 5 is abrasion on left knee, injury No. 6 is incised wound 2 x 1 cm on left thigh, injury No. 7 is an abrasion 4 x 3 cm on abdomen and injury No. 8 is complaint of pain in abdomen and an abrasion 4 x 2 cm present on abdomen. For all the injuries, deceased Shribhan in dying declaration (Ex. P.8) recorded by ASI Keshav Singh (P.W.15) had named six persons as accused. A perusal of the above injuries reveals that neither any injury individually nor all the injuries collectively were sufficient to cause death in the ordinary course of nature.

Before we deal and discuss the medical evidence, we may note here that Dr. A.K. Mathur (P.W.25) who after admission had attended the deceased Shribhan has admitted that at the time of admission and operation, kidneys of Shribhan had already failed. Cause of death in the present case as per Dr. Rajesh Kumar Verma (P.W.23) who after thirteen days of the occurrence conducted autopsy on the dead body of deceased Shribhan, was septicemic shock due to perforation, peritonitis and associated injuries to liver.

In the context of above injuries and medical record, we have been called upon by different counsels representing the accused to determine as to what offence is made out in the present case. Before we do so, it will be necessary to recapitulate the facts of the case.

Out of six accused named, Babu, Dan Singh and Khyal Bai were tried by the Court of Additional Sessions Judge (Fast Track) No. 3, Bharatpur Camp Bayana in Sessions Case No. 18/05. As Ratan and Nehru were declared as proclaimed offenders, however they were subsequently apprehended and were separately tried by the same court in Sessions Case No. 62/06. Thus, two separate trials had taken place. Sixth accused Dinesh was declared as delinquent juvenile in conflict with law. In his case, Mooli Ram complainant has filed revision petition bearing S.B. Criminal Revision Petition No. 807/2007 and the said revision petition was dismissed by the Single Judge of this court on 6.11.2008.

In Sessions Case No. 18/05 vide impugned judgment dated 8.3.2007 accused Dan Singh was convicted for offences under Sections 302 and 148 IPC and accused Babu was convicted for offences under Sections 302/149 and 148 IPC and both were sentenced as under:--

"Accused, Dan Singh:

U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo six months simple imprisonment.

U/s. 148 IPC: One year rigorous imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo two months simple imprisonment.

Accused, Babu:

U/s. 302/149 IPC: Life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo three months simple imprisonment.

U/s. 148 IPC: One year rigorous imprisonment, to pay a fine of Rs. 500/- and in default thereof to undergo one month simple imprisonment."

The trial court had acquitted Khyal Bai. Aggrieved against the acquittal of Khyal Bai, State of Rajasthan has filed D.B. Criminal Appeal No. 486/2008 and the complainant Mooli Ram has filed D.B. Criminal Revision Petition No. 780/07. Aggrieved against the conviction and sentence, Dan Singh has instituted D.B. Criminal Appeal No. 533/2008 and Babu has preferred D.B. Criminal Appeal No. 634/2007.

Subsequently, Ratan and Nehru were also apprehended. The Court of Additional Sessions Judge (Fast Track) No. 3, Bharatpur Headquarter Bayana vide judgment dated 20.10.2010 convicted Ratan and Nehru for offences under Sections 302/149 and 148 IPC and vide a separate order of even date sentenced them as under:--

"Accused, Ratan:

U/s. 302/149 IPC: Life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo three months simple imprisonment.

U/s. 148 IPC: One year rigorous imprisonment, to pay a fine of Rs. 500/- and in default thereof to undergo one month simple imprisonment.

Accused, Nehru:

U/s. 302/149 IPC: Life imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo three months simple imprisonment.

U/s. 148 IPC: One year rigorous imprisonment, to pay a fine of Rs. 500/- and in default thereof to undergo one month simple imprisonment."

Aggrieved against his conviction and sentence Nehru has filed D.B. Criminal Appeal No. 851/2010 and Ratan has preferred D.B. Criminal Appeal No. 877/2010.

Since two separate trials were held and evidence was recorded separately, we will decide the appeals preferred by Dan Singh and Babu, and the appeal filed by the State of Rajasthan and the criminal revision filed by complainant Mooli Ram against acquittal of Khyal Bai as one set and the appeals filed by Ratan and Nehru as second set. Both these sets shall be decided separately, but simultaneously.

ASI Keshav Singh (P.W.15) deposed in court that on 30.6.2004 he was posted as ASI at Police Station Bayana. He was directed by the In-charge of Police Station to visit Bayana Hospital and record the statement of Shribhan. Consequently he reached the hospital and recorded statement (Ex. P.8) of injured Shribhan. On the basis of said statement (Ex. P.8), formal FIR (Ex. P.9) bearing FIR No. 356/2004 was registered at Police Station Bayana. Statement (Ex. P.8) made by Shribhan has been termed as dying declaration after his death on 13.7.2004 at 8.40 A.M. at SMS Hospital, Jaipur. Statement made by the injured Shribhan (Ex. P.8) which has been now termed as dying declaration when translated into English reads as under:--

"Statement of injured Shribhan S/o. Bhanbhu, aged 36 years, by caste Meena, r/o. Dhadhren, P.S. Bayana, at present admitted in Medical Ward, Bed No. 22, CHC Bayana.

On inquiry stated that today on 30.6.2004 at 8.30 or 9.00 A.M. I was sitting on the tea shop at the Bus Stand and was taking tea. At that time, Babu S/o. Shankar, Dan Singh S/o. Babu, Nehru S/o. Munna, Ratan S/o. Shankar and son of Ratan whose name is Dinesh and Khyal Bai w/o Babu, by caste Meena, r/o Dhadhren, P.S. Bayana with common intention came. Babu and Ratan were armed with Fawada, Dinesh S/o. Ratan was armed with Axe, Khyal Bai was armed with Lathi. Regarding weapon in the hand of Dan Singh, I cannot say with certainty. After coming, all opened an attacked upon me. First of all they gave me a lathi blow due to which I fell down. Thereafter all gave me beating. As to who caused injury at which place, I am not aware. I have suffered injury on both feet, left hand, back and abdomen and at other places of my body. I became unconscious. Ramkesh S/o. Sona, Kalu S/o. Sona, Tillu S/o. Jailal who are residents of our village saved me, otherwise they would have killed me. Besides them other people of the village also gathered there. Accused left the spot and sat in the house of Gopal Sarpanch. Nobody had lifted me. Everybody due to fear sat at a distance. Mooli Ram master, Amrit Lal, Bharat Lal came to lift me. They were also attacked. Meanwhile, police came. In the presence of police, my Bhabhi Ramkali and Amrit Lal lifted me and brought me to Bayana Hospital and got me admitted there. I was taking tea at the shop of Atar Singh Meena.

Thumb Impression."

Prosecution to secure conviction of the appellants Dan Singh, Babu and Khyal Bai in Sessions Case No. 18/05 examined twenty-five witnesses.

Kadu (P.W.1), Tillu (P.W.2), Bharat Lal (P.W.6), Kailash (P.W.7), Amrit Lal (P.W.8), Ramkesh (P.W.9), Inder (P.W.18) were cited and examined as eye witnesses of the occurrence.

Ramkali (P.W.3) is Bhabhi of deceased. On hearing noise she was attracted at the spot alongwith Mooli Ram (P.W.4). Both Ramkali (P.W.3) and Mooli Ram (P.W.4) had seen the last part of the occurrence.

Prem (P.W.5) widow of Shribhan had arrived at the spot after the occurrence.

Constable Murari Lal (P.W.10) had attested the site plan (Ex. P.1).

Pyare (P.W.11) has turned hostile to the prosecution.

Prahlad (P.W.12) had attested the memo whereby clothes of the deceased were taken into possession.

Ratan Singh (P.W.13) has turned hostile to the prosecution.

Jayphool (P.W.14) who has turned hostile to the prosecution, also attested the arrest memo of the accused.

Gopal Ramchandani (P.W.16) and Yadram Fasal (P.W.22) had investigated the case and have proved various facets of investigation.

Shibbo (P.W.19) has turned hostile to the prosecution. He only stated that he saw the dead body lying in the field.

Having broadly noted the nature of deposition of the witnesses, we may notice here that the prosecution case primarily rests on the medical evidence which has emerged in the statements of three doctors, namely Dr. Bharat Lal Meena (P.W.17) who had initially examined the deceased, Dr. A.K. Mathur (P.W.25) who had attended and operated the deceased and Dr. Rajesh Kumar Verma (P.W.23) who had conducted autopsy on the dead body of deceased on 13.7.2004; after the deceased had expired on the said date at 8.40 A.M.

We need not divulge much on the ocular version as the witnesses have stated that all the accused have caused injuries to the deceased Shribhan. No eye-witness is injured in the occurrence. Counsel for the parties have also not assailed the testimony of the eye-witnesses with much vigour. Counsel for the parties have concentrated more regarding the nature of offence. Therefore, we straightway shall examine the medical evidence.

We have already noted the testimony of Dr. Bharat Lal Meena (P.W.17) who had noted the injuries in the injury report (Ex. P.14). We have already reproduced the nature of injuries in the preceding portion of this judgment. We have also observed that the injuries suffered by Shribhan are neither individually nor collectively sufficient to cause death in the ordinary course of nature.

Important for us to be noted is the testimony of Dr. A.K. Mathur (P.W.25). Occurrence in the present case had taken place on 30.6.2004 at 8.30 or 9.00 A.M. On that day itself at 11.00 A.M. Shribhan was examined by Dr. Bharat Lal Meena (P.W.17). Thereafter he was referred to the SMS Hospital, Jaipur. Dr. A.K. Mathur (P.W.25) on 1.7.2004 was In-charge of Surgical Unit-4 of SMS Hospital, Jaipur. This witness stated that on 30.6.2004 Shribhan was admitted in the hospital due to blood trauma of abdomen. At the time of admission of deceased, his kidneys were not functioning. It was a case of renal failure. The witness in his examination-in-chief stated,

The witness stated that immediately injured was put to dialysis. Condition of his kidneys was deteriorating and blood urea and critinine were increasing, The witness stated that on 11.7.2004 he had conducted emergency operation as there was perforation in intestine at two places. Shribhan died on 13.7.2004 at 8.40 A.M. due to septicemic shock. The doctor stated that septicemia was result of injuries to the intestine.

However, in cross-examination Dr. A.K. Mathur (P.W.25) admitted that there were only two abrasions on the abdomen and at the date and time of admission till operation, there was failure of the kidneys of the deceased and they were never revived. The witness stated as under:--

The witness admitted in cross-examination that perforation had nothing to do with the kidney failure and due to perforation there was blood loss and due to blood loss there was septicemia. The witness stated that due to blood loss kidney can fail. Septicemia can be another reason of kidney failure.

Having given our thoughtful consideration to the medical condition of the deceased, we are of the view that in the present case injuries were not sufficient to cause death of the deceased. Injuries were inconsequential in nature. Even perforation of intestine could easily be managed. But at the time of admission, kidneys had already failed and due to which blood urea and creatinine had increased multifold. Presence of urea in blood in itself is sufficient to cause septicemia.

Admittedly, in the present case no injury was caused to the kidney. It has come in evidence that in the present case peritoneal dialysis was conducted. It is medically accepted that if kidneys are not working efficiently enough to filter toxins and allow urine to flow, an artificial way of filtering the kidneys will be noted. In the present case it cannot be ruled out that when minor injuries were caused to Shribhan, kidneys of deceased have already failed. It cannot be ruled out that regarding renal failure of Shribhan, accused were not aware. They caused minor simple injuries. Thus, at the most intention of the accused was to cause injuries which may be grievous in nature. They wanted to give beating or thrashing to the deceased, but never intended to cause murder. This is evident from the nature of injuries. No injury has been caused on head, neck or chest. We cannot become oblivious of the fact that in the injury report (Ex. P.14) injuries No. 1 to 3 were on left foot, injury No. 4 is 1 x 1/2 cm lacerated wound on the nose, injury No. 5 is abrasion on left knee, injury No. 6 is on the left thigh and injuries No. 7 and 8 are small abrasions on the abdomen. Thus, the accused had never opted to cause any injury on the vital portion of the body of Shribhan who died after thirteen days of the occurrence. However, since kidneys of the deceased were not functioning and it is a case of renal failure, by the time the deceased reached the hospital on the same day his blood urea and cretinine had increased which were contributing factors to the causing of septicemia. Thus, we cannot say with certainty that the injuries have caused septicemia or already existing kidney failure had caused the septicemia.

Thus, from the nature of injuries, attending circumstances and the facts that kidneys of the deceased had failed, we are of the view that the accused never intended to cause death of Shribhan, but at the most grievous injuries to the deceased. Since injuries on the abdomen are abrasions, we are of the view that offence in the present case will fall under Section 325/149 IPC and not under Section 302 IPC.

Six persons have caused eight injuries, out of which one injury had caused perforation of intestine at two places and another injury has caused fracture of fibula bone. The prosecution has failed to specify the author of injury which caused perforation of intestine. Hence, to us, all the accused are liable for causing grievous injuries to the deceased having common object to this effect.

The trial court has acquitted Khyal Bai even though she has been named as accused by all the witnesses. State of Rajasthan and complainant Mooli Ram have filed appeal and revision petition respectively against acquittal of Khyal Bai.

Since we have held that the offence will fall under Section 325/149 IPC, we set aside conviction of Dan Singh for offence under Section 302 IPC and that of Babu for offence under Section 302/149 IPC. They are convicted for offence under Section 325/149 IPC and sentenced to five years rigorous imprisonment. Their conviction and sentence awarded by the trial court for offence under Section 148 IPC is also upheld. The sentence awarded to Dan Singh and Babu on both counts shall run concurrently and they shall also be entitled to benefit under Section 428 Cr.P.C.

We also set aside acquittal of Khyal Bai and also convict her for offence under Section 325/149 IPC.

Since Khyal Bai is a lady and occurrence in the present case had taken place on 30.6.2004, we are of the view that it will not be justifiable to send Khyal Bai behind the bars after twelve years. Hence, we release her on probation for a period of one year.

Consequently, we order that instead of undergoing sentence for offence under Section 325/149 IPC, the accused Khyal Bai shall be released on probation for a period of one year. She shall furnish personal bond and bonds by the sureties to the satisfaction of the trial court undertaking that during the period of probation she shall be of good conduct and be of peace. We also empower the trial court to specify any or all other conditions which it may deem fit, to facilitate accused Khyal Bai to undergo probation for a period of one year.

In view of discussion made above, D.B. Criminal Appeal No. 533/2008 filed by Dan Singh, D.B. Criminal Appeal No. 634/2007 preferred by Babu, D.B. Criminal Appeal No. 486/2008 filed by State of Rajasthan and D.B. Criminal Revision Petition No. 780/2007 preferred by Mooli Ram complainant stand disposed of.