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Judgment
Kanwaljit Singh Ahluwalia, J.—Lokesh Jain s/o Babu Lal Jain, Raju s/o Srinarayan, Jairaj s/o Tejraj, Sanjay s/o Babu Lal Jain, Dhiraj s/o Jaswant Singh Rajput and Vipin Chaturvedi s/o Sumit Narayan were nominated as accused in case arising out of FIR No. 110/2007 registered at Police Station Kotwali, Kota, for the offences under Sections 147, 148, 149, 307 and 302 IPC.
The investigating agency during investigation came to conclusion that the accused Sanjay, Dhiraj and Vipin Chaturvedi had not participated in the occurrence and filed an application under Section 169 Cr.P.C., for discharge of these accused from custody. The said application has been proved on record as Exhibit-D/4. The court of Magistrate had not accepted the application and took cognizance of offences against Sanjay, Dhiraj and Vipin Chaturvedi. Thus, all these six accused were tried by the court of Additional Sessions Judge (Fast Track) Kota. The said court vide impugned judgment dated 25.1.2010 held all accused guilty of offence under Sections 148 IPC. Lokesh Jain was substantively convicted for the offence under Section 302 IPC and remaining five accused, namely Raju, Dhiraj, Jairaj, Sanjay and Vipin Chaturvedi were convicted for the offence under Section 302 with the aid of Section 149 IPC. Raju was substantively convicted for the offence under Section 307 IPC and the remaining five accused, namely Dhiraj, Vipin Chaturvedi, Jairaj, Sanjay and Lokesh Jain were convicted for the offence under Section 307 read with Section 149 IPC. Raju was substantively convicted for the offence under Section 324 IPC, whereas remaining five accused, namely Dhiraj, Vipin Chaturvedi, Jairaj, Sanjay and Lokesh Jain were convicted for the offence under Section 324 read with Section 149 IPC. Lokesh Jain and Raju were also convicted for the offence under Section 4/25 of Arms Act. Having convicted all the appellants for the aforementioned offences, the trial court vide a separate order of even date sentenced them as under:--
"Appellant Lokesh Jain:
U/s 148 IPC- to undergo one year''s S.I. and to pay a fine of Rs. 1500/-, in default of payment of fine, to further undergo 15 days'' S.I.
U/s 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months'' S.I.
U/s 307/149 IPC- to undergo seven years'' S.I. and to pay a fine of Rs. 3,000/-, in default of payment of fine, to further undergo three months'' S.I.
U/s 324/149 IPC- to undergo two years'' S.I. and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo one month''s S.I.
U/s 4/25 Arms Act- to undergo one year''s S.I., and to pay a fine of Rs. 5,00/-, in default of payment of fine, to further undergo 15 days'' S.I.
Appellant Raju:
U/s 148 IPC- to undergo one year''s S.I. and to pay a fine of Rs. 1500/-, in default of payment of fine, to further undergo 15 days'' S.I.
U/s 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months'' S.I.
U/s 307 IPC- to undergo seven years'' S.I. and to pay a fine of Rs. 3,000/-, in default of payment of fine, to further undergo three months'' S.I.
U/s 324 IPC- to undergo two years'' S.I. and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo one year''s S.I.
U/s 4/25 Arms Act- to undergo one year''s S.I., and to pay a fine of Rs. 5,00/-, in default of payment of fine, to further undergo 15 days'' S.I.
Appellant Sanjay, Dhiraj, Jairaj and Vipin Chaturvedi:
U/s 148 IPC- to undergo one year''s S.I. and to pay a fine of Rs. 1500/-, in default of payment of fine, to further undergo 15 days'' S.I.
U/s 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months'' S.I.
U/s 307/149 IPC- to undergo seven years'' S.I. and to pay a fine of Rs. 3,000/-, in default of payment of fine, to further undergo three months'' S.I.
U/s 324/149 IPC- to undergo two years'' S.I. and to pay a fine of Rs. 1000/-, in default of payment of fine to further undergo one month''s S.I."
Aggrieved against the judgment of conviction, three separate appeals have been preferred before this Court. Lokesh Jain and Sanjay have instituted D.B. Criminal Appeal No. 70/2010, Dhiraj and Vipin Chaturvedi have preferred D.B. Criminal Appeal No. 98/2010, and Raju and Jairaj have filed D.B. Criminal Appeal No. 112/2010. All the three appeals have been filed to assail the judgment of conviction and sentence. Since in all the three appeals, the impugned judgment is common, we shall decide all these three appeals together by this common judgment.
In the present case, as per the prosecution case, occurrence had taken place on 6.9.2007 at 10:30 PM and the statement of Pawan Bansal (P.W. 14), an injured eyewitness, was recorded on the intervening night of 6/7 September, 2007 at 12:45 AM. The case was registered at Police Station Kotwali, Kota City, on the same night i.e. 7.9.2007 at 1:45 AM. Special report reached area Judicial Magistrate, in the Kota city itself on 7.9.2007 at 11:55 AM.
In the present case, Kapil s/o Hari Prasad, due to solitary injury caused by Lokesh Jain had died on the night of occurrence. The case of the prosecution is that after receipt of injury, when Kapil was brought to MBS Hospital, Kota, he was declared dead. It is the further case of the prosecution that Pawan Bansal (P.W. 14), the sole injured person, in the occurrence had received injuries at the hands of the appellant Raju s/o Srinarayan. So far remaining four appellants, namely Jairaj, Dhiraj, Sanjay and Vipin Chaturvedi are concerned, even though in Parchabayan (Exhibit-P/23) and witnesses in the court have stated that these persons have caused injuries to the deceased, the same have not been found in the medical evidence. Thus, the prosecution has failed to substantiate injury attributed to four appellants, namely Jairaj, Dhiraj, Sanjay and Vipin Chaturvedi. Thus, as a matter of fact, it stands established that Lokesh Jain has caused solitary injury on the person of the deceased Kapil and the appellant Raju has caused injuries to Pawan Bansal (P.W. 14). Therefore, a serious question has been raised before us regarding application of Section 149 IPC?
The prosecution has projected that the occurrence had taken place in two parts, first part of the occurrence had taken place on 6.9.2007, at around 7:30/8:00 PM and thereafter, all accused came armed on 6.9.2007 at 10:30 PM and caused injuries to Kapil, the deceased and Pawan Bansal (P.W. 14).
It has been canvassed by the learned counsel for the appellants that in fact, one incident had taken place when motorcycle of accused allegedly collided with the brother of the complainant, at that stage the occurrence had ensued and injuries were caused by both sides to each other leading to registration of case and cross case. Therefore, another question which has been raised before us is that whether occurrence had taken place in two parts or it was a one occurrence?
Before we make an endeavour to answer above two questions raised before us, i.e. application of Section 149 Cr.P.C. and whether it was one occurrence or it had taken in two parts, it will be necessary for us to recapitulate the facts of the case.
The criminal proceedings were set into motion on the basis of Parchabayan (Exhibit-P/23) of Pawan Bansal (P.W. 14), which was recorded by Gopal Lal Meena (P.W. 21), SHO, Police Station Kotwali City at Emergency Ward MBS Hospital, Kota. In the statement, Pawan Bansal (P.W. 14) stated that on 6.9.2007, at about 10:30 PM, he, his brother Shambhu, Naresh, Ramesh and his nephew Kapil were sitting at their shop behind Kotwali. Then, accused Lokesh Jain, Dhiraj, Sanjay, brother of Lokesh Jain, Jairaj, friend of Lokesh Jain, Jaideep, Raju, Vipin Chaturvedi, came on two motorcycles bearing Registration No. RJ 20 - 12M - 3411 and RJ 20 - SC 0513. Immediately on arrival with an intention to cause murder, they opened attack with knives. Lokesh Jain gave knife blow in the chest and abdomen of Kapil. Raju gave a knife blow on the left ear of Pawan Bansal. Due to the blows caused blood started oozing out. Injuries were also caused to Pawan Bansal on his right hand and chest. It was complained that Lokesh Jain, Raju, Jairaj, Dhiraj, Sanjay, Jaideep and Vipin Chaturvedi, all caused injuries with knives with the intention to kill Kapil and Pawan Bansal (P.W. 14). Manoj, Bhagwandas Sharma, Abhishek, Moti and Shambhu brought Kapil and injured Pawan Bansal to the hospital. Their doctor declared nephew Kapil as dead and commenced treatment of Pawan Bansal.
Before we notice the evidence of the witnesses, it will be necessary for us to notice injuries on the person of Kapil deceased. As per Post-Mortem Report (Exhibit-P/30), which has been proved by Dr. Arun Sharma (P.W. 19), who at relevant time i.e. on 7.9.2007, was posted as Medical Jurist at MBS Hospital, Kota. This witness had noted following injury on the person of Kapil:--
"Ante-Mortem Injury- Stab injury with clean cut margin. 2" x 1/2" long cavity deep on left side of chest longitudinally placed 2" medial to left nipple in between nipple and mid line of chest. On dissection, wound is extending backward (posteriorly) left laterally into the chest cavity cutting the IXth and Vth Rib and piercing the pericardium and then entering into left Atrium. Wound on left Atrium is 1.5" cavity deep -vertically oblique. Outer membrane of blood was full of blood. Chest muscle showing ill defined haematoma assumed wound (lungs pleura intact)." 11. As per opinion of the doctor, cause of death was shock as a result of ante-mortem injury caused to heart and the said injury was sufficient to cause death in the ordinary course of nature.
Dr. Rakesh Sharma (P.W. 10) on 7.9.2007, at 9:20 AM, on the request made by SHO, Police Station Kotwali, Kota, had examined Pawan Bansal (P.W. 14) and as per injury report (Exhibit-P/20), he had found following injuries on the person of Pawan Bansal:--
"(1) Stitch wound 4cm long entering left cheek upto left ear.
(2) Diffuse swelling left side of chest.
(3) Diffuse swelling on the right hand."
At the cost of repetition, it is again stated that the injuries on the person of Pawan Bansal (P.W. 14) are attributed to Raju and solitary injury caused on the person of Kapil is attributed to Lokesh Jain.
The prosecution in the present case had examined 23 witnesses and have proved on record 36 documents (Exhibit-P/1 to Exhibit-P/36).
The defense examined two witnesses and has proved on record injury report of Raju as Exhibit-D/7. Dr. Rakesh Sharma who had appeared as P.W. 10, was also examined by defense as D.W. 2. He again stated that on 7.9.2007, he was posted as Medical Jurist at MBS Hospital, Kota and on the request made by Police of Police Station Kotwali, Kota, he had examined accused-appellant, Raju and as per Injury Report (Exhibit-D/7), ''a stitch wound - 6cm long on the right hand'' had been found on his person.
The accused, Raju has appeared in the court as D.W. 1. This witness has also proved on record the complaint Exhibit-D/8, filed by him narrating cross version.
The prosecution examined Manoj (P.W. 1), Raghuveer (P.W. 4), Shambhu (P.W. 5), Bhagwandas (P.W. 9), Naresh Agarwal (P.W. 11), injured Pawan Bansal (P.W. 14), Rajkumar (P.W. 15), Ankit (P.W. 16), Deepak (P.W. 17) and Ramesh (P.W. 22), as eyewitnesses of the occurrence.
Raghuveer (P.W. 4) and Rajkumar (P.W. 15) were declared hostile by the prosecution. Except Deepak (P.W. 17), all witnesses have stated that the occurrence had taken place in two parts. Firstly, the motorcycle of accused had collided with the brother of Pawan Bansal. The complainant party was making preparation to go the Police Station to lodge the report against the accused, when all the accused came armed and gave injuries. It will not be appropriate for us to burden the judgment by noticing testimonies of all eyewitnesses. We shall confine ourselves to the statement made by Pawan Bansal (P.W. 14), who was injured in the occurrence and whose presence as an eyewitness is stamped, and testimony of Deepak (P.W. 17) an independent witness, who has not been declared hostile by the prosecution. By adverting to the testimony of these witnesses, we will make an attempt to harmonize the case of prosecution, keeping into consideration the fact that the Special Report in the same city had reached after a delay of about 12 hours.
We shall translate the examination-in-chief of Pawan Bansal (P.W. 14) injured witness, and reproduce the same for ready reference as under:--
"On 6.9.2007, it was Thursday, we were sitting behind Rampura Kotwali at the shop of Halwai. At around 10:15 PM, I, Ramesh, Naresh, Shambhu and my nephew Kapil were sitting and were closing our shop and were preparing to return to our house. My brother, Ramesh had gone ten steps ahead. Meanwhile, from the side of Mauri Ke Hanuman, one bike came, its number was RJ 20 SC 0513. It was being driven by Sanjay. Lokesh was sitting behind him. Vehicle was at high speed and had collided with my brother Ramesh. Ramesh asked him to drive the vehicle slowly. Then Lokesh who was pillion rider, alighted and slapped my brother Ramesh and after giving threat to cause death, left the spot. I on phone requested my friend Bhagwandas to lodge the report. He along with his brother Manoj and Abhishek Motiyani came to the shop. When we were going to lodge the report, meanwhile, from the side of Mauri Ke Hanuman JI, three motorcycles came. One motorcycle was being driven by Sanjay and Lokesh was sitting at pillion. On second motorcycle, Jairaj and Raju were sitting. On third motorcycle, Dhiraj and Vipin were sitting. Raju and Lokesh were armed with knives. Jairaj was having iron patti. Then Lokesh, Raju and Jairaj alighted from the motorcycle and started giving blows to all four of us. Meanwhile, separating Sanjay and Jairaj, my nephew Kapil came. They caught hold of him. Lokesh gave a knife blow in his chest. My nephew fell on the spot. I came forward to save him. Then Raju gave a knife blow on my left ear and I too fell down shouting Bachao Bachao. I and my nephew Kapil were brought by my brothers and my friends to MBS Hospital, Kota. I was got admitted there and Kapil was declared dead. My statement Exhibit-P/23 was recorded. Portion A - B contains my signatures. Police took into possession my pant and shirt, which were stained with blood vide memo Exhibit-P/1. It contains my signatures from E - F. I gave an application to Superintendent of Police (Exhibit-P/24), which contains my signatures from portion A to B. I knew the accused by their names." 20. To appreciate the entire case of the prosecution, it is also necessary for us to reproduce the examination-in-chief of Deepak (P.W. 17), who is an independent witness. The statement of Deepak (P.W. 17) when translated into English, reads as under:--
"House of my Bhua (sister of father) is at Ladpura. I resides at Kansua. On 6.9.2007, I was going to Bhua''s house. It was around 10:00/10:15 PM, I was going from Chaurasiya Pan Wale Ki Gali, behind Kotwali. Arguments were going on between Lokesh and sons of Balchand Halwai. 5-7 persons who were standing on one side, out of them, one person took out knife. Two persons who were sitting on motorcycle, their names were Raju and Lokesh. Out of 5-7 persons, one person gave a blow to Lokesh, Raju caught hold of that person and a cut was caused on hand of Raju. I do not know those 5-7 persons. Thereafter, another blow was given, which had hit another person. Then chaos was created. I too went away, during chaos. I know Sanjay. He was not present at the spot. Dhiraj and Vipin are not known to me. Who caused injury to whom, I do not know." 21. We have reproduced the examination-in-chief of Deepak (P.W. 17). He has not been declared hostile by the prosecution. No cross-examination has been extended. Thus, it is apparent that both the prosecution and the defence have accepted the statement of Deepak (P.W. 17) as truth.
Having heard the learned counsel for the parties, we are of the view that Parchabaya (Exhibit-P/23), on the basis of which investigation was set into motion, is silent regarding the colliding of motorcycle with Ramesh, the brother of Pawan Bansal (P.W. 14). It is in the court that Pawan Bansal (P.W. 14) has stated that origin and genesis of the occurrence was collision of motorcycle with Ramesh. We cannot become oblivious of the fact that the occurrence had taken place in front of the shop of the complainant. We also cannot ignore that in the entire occurrence, only one injury has been caused to the deceased, Kapil, which is attributed to Lokesh Jain. Furthermore, from the perusal of the statement of Pawan Bansal (P.W. 14), and his injury report (Exhibit-P/20), it is apparent that he has suffered only one stitch wound on his left cheek. Injury Nos. 2 and 3 are diffuse swelling not of much consequence.
Considering that in the occurrence, only one injury has been caused by Lokesh Jain on the person of Kapil, the deceased, and one blow has been given by Raju on the person of Pawan Bansal (P.W. 14), we will rely on the statement of Deepak (P.W. 17) to come at a conclusion that the moment motorcycle on which Lokesh Jain was travelling, collided with Ramesh, only two accused Lokesh Jain and Raju were present and due to heated exchange of arguments, they each caused injuries with knife in their possession. Lokesh caused an injury to Kapil and Raju caused injuries to Pawan Bansal (P.W. 14). Therefore, we give due credence to the application (Exhibit-D/4) filed by the investigating agency, under Section 169 Cr.P.C. praying for discharge of accused, namely Sanjay, Dhiraj and Vipin Chaturvedi as no injury attributed to them, has been found in medical evidence. We extend benefit of doubt to four appellants, namely Sanjay, Dhiraj, Vipin Chaturvedi and Jairaj, holding that they were not present at the scene of occurrence. Thus, we accept appeals preferred qua the appellants, namely Sanjay, Dhiraj, Vipin Chaturvedi and Jairaj and set aside the judgment of conviction and order of sentence qua them and acquit them of all the charges.
Since in the present case, occurrence has taken place without any premeditation and at spur of moment due to collision of motorcycle, with Ramesh, brother of Pawan Bansal (P.W. 14) and Lokesh Jain had caused only solitary injury on the person of Kapil, the deceased, we hold that he is guilty of offence under Section 304-I IPC and not for the offence under Section 302 IPC.
We are further of the opinion that so far the accused-appellant, Raju is concerned, neither common intention falling within the ambit of Section 34 IPC, nor common object falling within the scope of Section 149 IPC can be attracted qua him. Raju shall be individually liable for causing injuries falling within the ambit of Section 307 and 324 IPC.
As a result of above discussion, we convert substantive conviction of Lokesh Jain from Section 302 to 304-I IPC. We set aside the life imprisonment awarded upon him and sentence him to ten years'' R.I., with a fine of Rs. 10,000/-. In default of payment of fine to further undergo one year''s R.I.
We acquit the appellant Raju, so far his conviction under Section 302/149 IPC is concerned. However, we maintain his conviction for the offence under Sections 307, 324 IPC and 4/25 of Arms Act, as ordered by the trial court and sentences awarded to him on these counts shall run concurrently. We set aside the conviction of the appellant Lokesh Jain under Section 307/149 IPC and 324/149 IPC. However, we uphold and maintain his conviction for the offence under Section 4/25 of Arms Act. Hence, the sentences of the appellant Lokesh Jain under Section 304-I IPC and under Section 4/25 Arms Act shall run concurrently.
In view of above, appeal filed by Lokesh Jain and Raju also stand disposed of.