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Judgment
Govind Mathur, J.—These two appeals are directed against the judgment dated 20.04.2007 passed by learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara in Sessions Case No. 96/2004 (42/2003) convicting accused Devilal, Harji, Ramchandra and Nanda while acquitting accused Mrs. Sayari, Mrs. Deu and Hinduram. The conviction and sentence of the accused-appellants is as under:-
In brief, the facts of the case are that on 25.07.2003 at about 11.00 p.m., a statement given by Mrs. Bhaguti (P.W.1) at Community Health Center, Aasind before the Station House Officer, Police Station Aasind was reduced in writing and on the basis of that, a criminal case was lodged against seven persons including two ladies, namely, Mrs. Sayari and Mrs. Deu. As per the statement made by Mrs. Bhaguti, she was at the residence of her brother Nanuram from last five days and on 24.07.2003, some altercations took place between her and Mrs. Sayari relating to some money transaction. Being aggrieved with these altercations and also looking to earlier vengeance, Mrs. Sayari called her brothers Harji, Ramchandra and Nanda with their 3-4 friends and in the night at about 11.30 p.m., the persons aforesaid armed with lathis and iron rods entered in the house of Nanuram. Being frightened, Bhaguti and two daughters of Nanuram fled from the spot and availed shelter at the house of Prithviraj Balai. Nanuram also ran away to the agriculture fields, however, his old mother Mrs. Sarju remained at home, who was beaten by Devilal, Ramchandra, Nanda, Harji and their friends. In the morning of 25.07.2003 at about 8.00 a.m., Mrs. Bhaguti and the two girls, who took shelter at the house of Prithviraj Balai, returned to their house. At that time, Devilal and his wife Mrs. Sayari came there and forcibly took Mrs. Bhaguti to their house. Serious beating was given to her by Mrs. Sayari, Devilal and Mrs. Deu. Devilal and Harji at that time were carrying iron rods, whereas Nanda, Ramchandra and their friends were armed with lathis. All these persons then went in search of Nanuram and after fetching him, he was brought to the residence of Devilal and was tied to a Neem tree. He was ruthlessly beaten with the aid of lathis and iron rods. Mrs. Sayari and Mrs. Deu squeezed testicles of Nanuram, whereas other persons gave him several blows from iron rod and lathi. On making alarm, Harikishan, Bhojraj and Laxman came for rescue. At that time, Nanuram was unconscious and in the evening, he died.
On basis of this statement, investigating agency initiated investigation, got autopsy conducted on the person of Nanuram and injury reports of Mrs. Sarju and Mrs. Bhaguti were also obtained. Accused persons were arrested and at their instance, certain recoveries were made. On basis of the disclosure made by accused Devilal an iron rod and a plastic rope was recovered. At the instance of Mrs. Deu and Mrs. Sayari, Babool sticks were recovered. Sticks were also recovered as per documents Ex. P/6 and Ex. P/7, on basis of the information given by accused Ramchandra and Nanda respectively. An iron rod was recovered as per Ex. P/8 on basis of the disclosure made by accused Harji. All these articles and the cloths of deceased were subjected to serological examination and as per the report given by the Forensic Science Laboratory (Ex. P/47), blood stains of human origin were found on the shirt and Dhoti worn by the deceased at the time of death. No blood was detected on any other article.
After completion of the investigation, a report as per the provisions of Section 173 Cr.P.C. was filed and after affording hearing, accused Hinduram, Harji, Ramchandra and Nanda were charged for commission of offence punishable u/s 148, 452, 325, 325/ 149, 302, 302/ 149 and 342 IPC. Accused Devilal, Mrs. Sayari and Mrs. Deu were charged for commission of offence punishable u/s 148, 452, 325, 325/ 149, 302/ 149, 342 and 323 IPC. On denial of the same, trial commenced as desired.
The prosecution supported its case with the aid of 32 witnesses (P.W.1 to P.W.32) and by exhibiting several documents (Ex. P/1 to Ex. P/48). As per Section 313 Cr.P.C., opportunity was given to the accused persons to explain the adverse circumstances and the incriminating material available against them in the prosecution evidence. All the accused termed the entire evidence false with assertion that they were implicated in the case due to personal vengeance. In defence, testimony of Pushkar (D.W.1), Ambalal (D.W.2) and Devilal (D.W.3) was examined and the documents Ex. D/1 to Ex. D/17-A were exhibited.
Suffice to mention here that in the prosecution evidence, P.W.1 Bhaguti, P.W.2 Sarju, P.W.3 Bhojraj, P.W.5 Dalel Singh, P.W.6 Lumbaram, P.W.9 Laxmi, P.W.10 Harikishan, P.W.16 Prem and P.W.22 Parsi were cited as eye-witnesses, but P.W.3, P.W.5, P.W.10 and P.W.16 did not support the prosecution story, thus, these witnesses were declared hostile. Nanu Kumawat (P.W.14), Mrs. Jassu (P.W.15), Prithviraj Balai (P.W.13), Laxman (P.W.12) were also cited as eye-witnesses of a part of the incident and out of these witnesses, Laxman (P.W.12) was declared hostile as he did not support the prosecution case in totality.
The autopsy on the person of deceased Nanuram was conducted by a Board of two doctors, namely, Dr. Nemichand (P.W.18) and Dr. Mahendra Pratap (P.W.23). The postmortem report given is available on record as Ex. P/23. Dr. Nemichand (P.W.18) also examined the injuries of Mrs. Sarju and Mrs. Bhaguti and the injury reports given are available on record as Ex. P/19 and Ex. P/20). Mr. Suresh Dutt (P.W.29) came in the witness box being the Investigating Officer and narrated all the steps taken during the course of investigation.
Learned trial court examined the entire evidence in lucid and held accused-appellants Devilal, Harji, Nanda and Ramchandra guilty for the offences punishable u/s 148, 452, 302/ 149 and 342 IPC. By extending benefit of doubt, other accused persons, namely, Hinduram, Mrs. Sayari and Mrs. Deu, were acquitted. The accused-appellants have given challenge to their conviction, whereas the appeal preferred by the State is directed to challenge the acquittal awarded.
In appeal, the argument of learned counsel for the accused-appellants is that no independent eye-witness has supported the prosecution case and the conviction is based on the evidence adduced by interested witnesses, as such, the same is not at all sustainable. It is asserted that even in the evidence adduced by the interested witnesses, huge contradictions exist and therefore, their testimony is not at all trustworthy. Much emphasis is given on the fact that no independent witness has supported the prosecution story and even the recoveries said to be made at the instance of accused-appellants have not been established, therefore, possibility of false implication of the accused-appellants, especially looking to the existing vengeance between the parties, cannot be ruled out.
In alternative, it is also submitted that no evidence is available on record to establish that the accused-appellants were intending to kill Nanuram, as such, even if it is assumed that they participated in the crime, the offence committed by them does not travel beyond an offence described u/s 304 Part-II IPC.
While opposing the appeal preferred by the accused persons, it is submitted by learned Public Prosecutor that the evidence adduced by the prosecution cannot be ignored merely on the count that the witnesses are in relation to the victim persons, though such evidence is required to be examined cautiously and in the instant matter, such caution was taken by the trial court. It is further submitted that besides the witnesses who are in relation to the victims, several other independent witnesses have supported the case of the prosecution and in totality, the evidence available is sufficient to record the conviction.
In appeal preferred by the State challenging acquittal of Mrs. Sayari, Mrs. Deu and Mr. Hinduram, it is stated that the instant one is a case where conviction is made with the aid of Section 149 IPC, therefore, the case of the respondent-accused persons cannot be distinguished with the case of the accused persons convicted. It is asserted that cogent evidence is available on record relating to active participation of Mrs. Sayari and Mrs. Deu in giving serious beating to deceased Nanuram and injured Mrs. Sarju and Mrs. Bhaguti, as such, their acquittal is running contrary to the evidence available on record. According to learned Public Prosecutor, a definite allegation of squeezing testicles of Nanuram is against these two ladies and the injury occurred to the testicles is also a cause of death, therefore, their acquittal from the charge pertaining to the offence u/s 302/ 149 IPC is absolutely wrong.
Heard learned counsel for the accused-appellants and learned counsel for the accused-respondents as well as learned Public Prosecutor.
As per the prosecution case, the entire incident occurred in three steps. At the first instance, in the night of 24.07.2003, accused persons entered in the house of Nanuram and gave serious beating to Mrs. Sarju. At that time, Mrs. Bhaguti, Ms. Laxmi and Ms. Parsi escaped and availed shelter at the residence of Prithviraj Balai. Nanuram at that time fled from the spot leaving his old mother in the house. Nothing happened thereafter in the night, however, in the morning of 25.07.2003, when Mrs. Bhaguti, Ms. Laxmi and Ms. Parsi returned to their house, accused Mrs. Sayari and Devilal again came and forcible took Mrs. Bhaguti to their residence. They gave beating to Mrs. Bhaguti with the aid of lathis and iron rods. The accused persons then proceeded in search of Nanuram and on tracing he was brought to their residence. He was then tied to a Neem tree with a plastic rope. Several lathi and iron rod blows were given to him, however, on making alarm, he was rescued by few villagers. In the evening, Nanuram died.
The first question requires examination is relating to nature of death of Nanuram. As per the medical evidence adduced by Dr. Nemichand (P.W.18) and Dr. Mahendra Pratap (P.W.23), the person of Nanuram was having the following 32 injuries:-
Lacerated Wound, size 1.5 cm. X 0.5 cm., left elbow outer aspect, bleeding present.
Bruise, size 4 cm. X 3 cm., forearm (left) upper 1/3 inner aspect.
Abrasion, size 6 cm. X 1 cm., encircle left wrist.
Bruise size 2 cm. X 1 cm., left forearm lower 1/3.
Bruise, size 15 cm. X 2 cm., left thigh frontal aspect.
Abrasion, size 7 cm. X 1 cm., left knee frontal aspect.
Abrasion, size 1 cm. X 1 cm., left leg (middle 1/3) frontal aspect.
Abrasion, size 4 cm. X 3 cm., left thigh (middle 1/3) back.
Bruise, size 3 cm. X 1 cm., left thigh back lower 1/3.
Bruise, size 16 cm. X 2 cm., right forearm outer aspect.
Bruise, size 15 cm. X 2 cm., right arm outer aspect.
Bruise, size 2 cm. X 1 cm., right arm outer aspect.
Abrasion, size 1.5 cm. X 0.5 cm., right knee frontal aspect.
Abrasion, size 2 cm. X 1 cm., right wrist outer aspect.
Laceration, size 2 cm. X 1 cm., right leg (middle 1/3) frontal aspect.
Bruise, size 16 cm. X 2 cm., right thigh back.
Bruise, size 10 cm. X 2 cm., right thigh upper 1/3 back.
Bruise, size 4 cm. X 2.5 cm., scrotum left side.
Abrasion, size 4 cm. X 3 cm., left scapular region.
Abrasion, size 2 cm. X 1 cm., inter scapular region left.
Abrasion, size 1 cm. X 1 cm., right gluteal region.
Abrasion, size 0.5 cm. X 1 cm., left lumber region.
Abrasion, size 2 cm. X 1 cm., lower back (middle).
Abrasion, size 0.5 cm. linear, right side of neck.
Abrasion, size 0.4 cm. linear, right side of neck.
Abrasion, size 0.6 cm. linear, right side of neck.
Bruise, size 4 cm. X 3 cm., left side of chest (lateral aspect).
Bruise, size 1 cm. X 1 cm., right side of chest (front).
Abrasion, size 1 cm. X 1 cm., left shoulder.
Abrasion, size 3 cm. Linear, right side of abdomen.
Abrasion, size 1 cm. X 1 cm., right side of abdomen.
Abrasion, size 1 cm. X 0.5 cm., behind left ear.
Both the doctors named above also verified the cause of death given in the postmortem report (Ex. P/23) and that is:
Hypovolaemic shock caused by Injury chest (left side) with Injury scrotum (left) and multiple injury from injury No. 1 to 32
In view of the medical evidence available on record, there is no doubt about homicidal death of Mr. Nanuram.
Dr. Nemichand (P.W.18) also examined injuries of Mrs. Sarju and Mrs. Bhaguti and as per the injury report Ex. P/19, Mrs. Bhaguti was having the following injuries:-
Laceration, size 0.5 cm. X 0.5 cm., right leg, blunt
Laceration, size 1 cm. X 0.5 cm., left leg, simple, blunt
Laceration, size 1 cm. X 0.6 cm., left hand, simple, blunt
The injuries noticed on the body of Mrs. Sarju, as per injury report Ex. P/20, were as under:-
Bruise, size 6 cm. X 4 cm., right knee, blunt
Complaint of pain and injury on back, on examination no evidence of injury seen.
P.W.24 Dr. Anil Lahoti verified Ex. P/21 the medical report relating to finding of fracture in the right femur bone of Mrs. Sarju based on a report of x-ray that was made under his instructions.
P.W.1 Mrs. Bhaguti is real sister of deceased Nanuram. As per this witness, she came to her brother''s house five days back to join Rakhi festival. She went to Mrs. Sayari to collect the money due, where some heated altercations took place. Mrs. Sayari then called her brothers with certain other persons and all the persons called for entered in the house of deceased Nanuram in the night. Being frightened, this witness and two girls, namely, Ms. Laxmi and Ms. Parsi, ran away from the spot and took shelter at the house of Prithviraj Balai, whereas Nanuram ran towards the agriculture fields. As per this witness, in the morning when she returned to her house, she found Mrs. Sarju with several injuries. At that time, accused Mrs. Sayari and her husband Devilal came there and forcibly took this witness to their residence, where other accused persons too were present. As per this witness, accused Harji, Mrs. Deu and Mrs. Sayari gave her stick blows. She further stated that her brother Nanuram was also brought to the house of Devilal and he was tied to a Neem tree with the aid of a plastic rope. Serious beating was given to him and he was rescued by Harijans. Nanuram was then taken to his house, where he died. This witness quite specifically stated that Harji and Mrs. Deu gave several blows to Nanuram.
P.W.2 Mrs. Sarju also narrated the entire incident in detail. As per this witness, in the night, Ramchandra, Harji, Deva, Baldeva etc. came to her house and looking to their preparations, Nanuram ran away from the spot. Mrs. Bhaguti and two girls also went to the house of Balai to have shelter. This witness further stated that in the morning, Nanuram was taken to the house of Devilal, where several persons gave several blows to him. Nanuram then was taken to the hospital.
P.W.9 Laxmi and P.W.22 Parsi are the girls who accompanied Mrs. Bhaguti in the night of 24.07.2003 and stayed at the residence of Prithviraj Balia for whole night. These two witnesses have also supported the prosecution case.
An important witness is P.W.6 Lumbaram Gurjar, who is real uncle of deceased Nanuram as well as accused Devilal. As per this witness, on 25.07.2003, he was at his residence and at about 11.00 a.m., he saw Nanuram tied with a neem tree. Accused Ramchandra and Harji were standing nearby to him and both were giving iron rod blows to him. The daughters of Nanuram were also present there and they were screaming. Kishan and Bhoja then came for rescue and after about an hour, Nanuram died. This witness denied presence of Mrs. Sayari and Mrs. Deu at the place of incident. In cross-examination too, he maintained his version given in the chief.
Other important witnesses are P.W.13 Prithviraj, P.W.14 Nanu Kumawat, P.W.15 Mrs. Jassu Bheel and P.W.16 Prem Gurjar.
P.W.16 Prem Gurjar was declared a hostile witness, however, this witness indicated presence of accused persons with Nanuram at the residence of Devilal.
P.W.13 Prithviraj is the person at whose residence Mrs. Bhaguti, Ms. Laxmi and Ms. Parsi took shelter in the intervening night of 24.07.2003 and 25.07.2003. As per this witness, in the night of 24.07.2003 at 11.30 p.m. Mrs. Bhaguti, Ms. Laxmi and Ms. Parsi came to his house and stayed there for whole night. These three persons informed him about the incident taken place and also about the fact that Nanuram also left his house as the accused persons came to his house armed with lathis and rods. As per this witness, in the morning of 25.07.2003 at about 8.00 a.m., all the three ladies left his house. The facts given by this witness clearly establish that in the night of 24.07.2003, some ill happening took place and that compelled the three ladies for availing shelter at his residence.
P.W.14 Nanu Kumawat in detail narrated the facts pertaining to the incident taken place on 25.07.2003. As per this witness, about 10.00-11.00 a.m. on 25.07.2003, Devilal was pushing Nanuram towards his house. Devilal with the aid of 2-3 persons then tied Nanu Gurjar to a Neem tree. All the persons were beating Nanuram with sticks and rods. As per this witness, no lady was participating in the incident concerned.
P.W.15 Mrs. Jassu Bheel also supported the prosecution story. According to this witness, Nanuram was hiding in her agriculture field, wherefrom accused persons carried him and then tied him to a Neem tree. Accused persons were giving iron rod and lathi blows to Nanuram. Accused Mrs. Deu and Mrs. Sayari were also there. They too were beating Nanuram.
On appreciation of the evidence discussed above, it is apparent that in the night of 24.07.2003, accused-appellants came to the house of Nanuram armed with lathis and iron rods. Deceased Nanuram, his sister Mrs. Bhaguti and daughters Ms. Parsi and Ms. Laxmi fled from the house. Mrs. Bhaguti, Ms. Laxmi and Ms. Parsi availed shelter at the residence of Prithviraj Balai and Nanuram in the field of Mrs. Jassu Bheel. Mrs. Sarju remained at home and was beaten by the accused persons. In the morning of 25.07.2003, Mrs. Bhaguti, Ms. Laxmi and Ms. Parsi came to their house, wherefrom Mrs. Bhaguti was forcibly taken to the residence of accused Devilal. At his residence, Mrs. Bhaguti was beaten, as a result of which, she suffered certain injuries. About 11.00 a.m. of the same day, accused-appellants brought Nanuram also at the residence of Dveilal and he was tied to a Neem tree. All the accused-appellants gave lathi and iron rod blows to Nanuram. Nanuram then was rescued by few villagers and subsequent thereto, he died.
The presence of two ladies, namely, Mrs. Sayari and Mrs. Deu is shown by the injured witnesses and also by Mrs. Jassu Bheel (P.W.15). Other witnesses including Lumbaram and Nanu Kumawat have denied the presence of these two ladies at the place of the incident. Suffice to mention that these two persons witnessed the part of the incident taken place on 25.07.2003 at the residence of Devilal after fetching of Nanuram. As such, presence of Mrs. Sayari and Mrs. Deu in third step of the incident may be doubtful, but their participation in earlier events is established beyond doubt.
None of the witness has stated anything about the presence of Hinduram at the place of the incident. In such circumstances, there is no doubt about participation of the accused-appellants in the crime in question. However, the presence of Mrs. Sayari, Mrs. Deu and Hinduram while bating Nanuram at the residence of Devilal is quite doubtful. However, entry of Mrs. Sayari in the house of deceased Nanuram at about 11.30 p.m. on 24.07.2003 and further giving beating to Mrs. Sarju stands proved beyond any shadow of doubt. Mrs. Bhaguti (P.W.1) in quite unambiguous terms stated that Sayari was accompanying her brothers and husband in the night of 24.07.2003. Re-entry of Mrs. Sayari at the house of Nanuram in the morning of 25.07.2003 also stands established. As per eye-witness P.W.1 Mrs. Bhaguti, Mrs. Sayari and her husband Devilal came to her house in the morning of 25.07.2003 and forcibly took her to their residence. She also stated that Mrs. Sayari gave her stick blows. The injuries available on the bodies of Mrs. Bhaguti and Mrs. Sarju also establish the facts narrated by Mrs. Bhaguti. P.W.9 Laxmi and P.W.22 Parsi also stated in the same tune about participation of Mrs. Sayari in the crime on 25.07.2003. The evidence available is adequate to establish that Mrs. Sayari in the night of 24.07.2003 and in the morning of 25.07.2003 made a trespass in the house of deceased Nanuram and also gave beating to Mrs. Sarju. It is also established that in the morning of 25.07.2003 after trespassing to the house of Nanuram, she forcibly took Nanuram to her residence. As such, commission of the offences punishable u/s 452 and 323 IPC stands established against Mrs. Sayari. So far as her participation in causing death of Nanuram is concerned, she certainly deserves to have benefit of doubt in view of the statements given by P.W.14 Nanu Kumawat and P.W.6 Lumbaram.
The issue now requires determination is as to what offence has been committed by accused-appellants Devilal, Harji, Ramchandra and Nanda. As already stated, as per learned counsel for the accused-appellants, the accused persons were neither having any deadly weapon with them nor were they intending to kill Nanuram, thus, the offence, if any committed by them, does not travel beyond an offence prescribed u/s 304 Part-II IPC.
We do not find any merit in the argument advanced. The person of deceased Nanuram was having 32 injuries and as per the medical evidence, the cause of death was injury on the chest and injury to scrotum including other multiple injuries. The accused-appellants, if were not intending to kill Nanuram, then the incident would have not proceeded beyond the events taken place in the night of 24.07.2003. As a matter of fact, the accused appellants were in search of Nanuram and they found him in the morning of 25.07.2003. Nanuram was then tied to a Neem tree and then was given several iron rod and lathi blows. The entire series of events taken place, in addition to the medical evidence available on record, is adequate to establish that the accused-appellants were having a definite intention to kill Nanuram, as such, their conviction for the offence punishable u/s 302 IPC is in accordance with law. The appeal preferred by the accused-appellants, thus, is having no merit and deserves to be dismissed. In view of the discussions made above and the reasons given, the appeal preferred by accused-appellants Devilal, Harji, Ramchandra and Nanda is dismissed. The appeal preferred by the State challenging the acquittal is allowed in part. The acquittal of Mrs. Deu and Hinduram is maintained. However, Mrs. Sayari is convicted for the offences punishable u/s 452 and 323 IPC. Having considered all the facts of the case and looking to the period already undergone by Mrs. Sayari in police as well as judicial custody during the course of trial, we deem it appropriate to award the sentence to her for the period already undergone in custody.