Nana and Others vs State of Rajasthan

Jagat Singh, J.—In this appeal filed u/s 374(2) Cr. P.C. accused appellants Nana, Bada and Sawa have been convicted u/s 302/34 IPC and sentenced to life imprisonment with a fine of Rs. 100/-. Accused appellant Sawa has also been convicted u/s 324 IPC and awarded one year''s simple imprisonment. However, co-accused Reshma and Sundara were convicted u/s 323 IPC and were released on probation.

Aggrieved against the above judgment and conviction only Nana, Bada and Sawa have filed this appeal through jail in which Shri Suresh Kumbhat has been appointed as amicus curiae.

The relevant facts as revealed from the prosecution evidence are that on the intervening night of 12th and 13th May, 1995 at about half past 12 these accused appellants and co-accused Sundara and Reshma were roaming in a village fair where they met Deeta (since deceased) and PW-2 Gena, PW-3 Narsa, PW-5 Uda and PW-9 Soma. There were other 10-12 persons alongwith the accused appellants. Sawa and Nana were armed with knives and the remaining were having stones in their hands. The accused party came from the side of Devalchora. As soon they were spotted by the complainant party the latter ran towards Merpur road. Upon which Bada, Sundara and Reshma threw stones towards them causing injuries to Gena and Soma felling them down. Deeta (deceased) and Narsa PW-3 were caught by accused party. Accused appellants Sawa and Nana inflicted knife injuries on the back portion of Deeta causing bleeding. In the meantime Narsa PW-3 fled towards the fair and was chased and injured by Bada and Sundara causing knife injuries by which he fell down bleeding. In the melee Deeta died and Narsa fell unconscious.

An FIR Ex.D/3 to the above effect was lodged at 12.45 A.M. on 13.5.1995 by Dhanna PW-1. After usual investigation five persons were charged and challaned in the court below Under Sections 302/34, 302/149*, 324/149, 325/149, 323/149 IPC.

Upon pleading not guilty and claiming trial the prosecution examined 18 witnesses and exhibited 28 documents. In statements given u/s 313 Cr.P.C. accused persons denied all the incriminating evidence appearing against them and pleaded false implication. No defence evidence was produced. Thereafter the learned tral court convicted and sentenced the accused appellant as stated above.

Learned amicus curiae took us through the evidence and has in right earnest conceded the fact that PW-2 Gena, PW-3 Narsa and PW-9 Soma were the injured witnesses, therefore, their presence at the spot cannot be disputed. According to us also PW-9 Soma received five blunt injuries as per injury report Ex.P/14, PW-2 Gena received four blunt injuries as per injury report Ex.P/13 and PW-3 Narsa received five incised wounds as per injury report Ex.P/12. These injuries have been proved not only by these eye witnesses but also by PW-14 Dr. Kanhaiyalal Sharma who examined these injured witnesses and prepared injury reports. Therefore, the learned amicus curiae has rightly conceded their presence at the time of occurrence.

Main contention of learned amicus curiae was that accused appellant Nana and co-accused Reshma also received injuries in the same occurrence. Their injury memos are Ex.P/16 and Ex.P/17. A perusal of these injury reports indicates that a lacerated wound on the scalp was received by Reshma whereas an incised wound on right fore arm was received by Nana. Their injuries have also been proved by PW-15 Dr. Rakesh Porwal who examined these injuries accused persons and proved their injury memos Ex.P/16 and Ex.P/17.

The submissions of learned amicus curiae were that there was a mutual fight between the two parties and at the dead of night in which injuries were caused on both sides. But unfortunately Deeta succumbed to his injuries and in the facts and circumstances narrated above it was not possible to ascertain who caused the fatal injury. There was no previous enmity between the parties and there cannot be any intention to cause murder. At the most a knowlege of likelihood of causing death may be inferred for the fatal injuries caused to deceased Deeta and, therefore, offence may fall u/s 304 Part-II IPC if the author of fatal injury could be located beyond reasonable doubt.

On the contrary the learned Public Prosecutor has supported the impugned judgment and conviction.

We have carefully considered the rival contentions.

As per FIR Ex.D/3 lodged by PW-1 Dhanna immediately after the occurrence Sawa and Nana gave knife injuries on the back portion of Deeta. Similarly is the version given by this witness in police statement Ex.D/1. However, during trial PW-1 Dhanna has stated that Nania and Bada gave knife injuries to Deeta felling him down. When this witness was confronted by his FIR Ex.D/3 lodged by him immediately after occurrence as also his police statement Ex.D/1 he denied to have stated that Sawa gave knife injuries to Deeta and has improved his version slightly and has substituted Bada instead of Sawa. So far as Nania is concerned, the testimony of PW-1 Dhanna is consistent and there is no improvement made from FIR Ex.D/3 as also police statement Ex.D/1. This witness has been cross-examined at length yet nothing substantial could be pointed out excluding complicity in the crime of accused appellant Nania. However, so far as accused appellant Bada is concerned, significant improvement made by this witness has been wrongly believed by the trial court in convicting this accused appellant for the murder of Deeta.

PW-2 Gena has also similarly implicated Bada for the knife injuries caused to deceased Deeta instead of Sawa. However, this witness has also stated that Nana also gave a knife injury to Deeta which is consistent not only with the version given in the FIR Ex.D/3 but also version given by PW-1 Dhanna.

According to PW-3 Narsa Bada and Nana gave knife injuries to Deeta. According to PW-4 Limba all the five accused gave knife blows to Deeta which is contradictory to the version give by other witnesses. Because it is not the case of the prosecution that all the given accused persons gave knife injuries to deceased Deeta nor PW-15 Dr. Rakesh Porwal found five sharp injuries on the person of deceased.

According to PW-5 Uda, PW-6 Dhula and PW-9 Soma Nana and Bada gave knife injuries to Deeta. However, their versions being in contradition with the first version given in FIR Ex.D/3 and the occurrence being taken place in the dead of night, therefore, inflicting any injury to deceased Deeta by Bada cannot be said to be proved beyond reasonable doubt. The trial court has not tried to shift and scan the evidence of the prosecution witnesses in right perspective and has wrongly convicted Bada u/s 302/34 IPC. In our considered view Bada deserved benefit of doubt.

So far as accused appellant Sawa is concerned, though in FIR Ex.D/3 it is mentioned that he alongwith Nana gave sharp injuries to deceased Deeta. However, during trial none of the prosecution witnesses stated that Sawa caused any sharp injuries to the deceased rather name of Sawa has been substituted by the name of accused appellant Bada. Therefore, without any evidence on the file Sawa has been wrongly convicted by the trial court for an offence u/s 302/34 IPC. He also deserved benefit of doubt.

Implication of Nana accused appellant in the crime is proved consistently right from the version of FIR Ex.D/3 Which was lodged immediately after the occurrence and has been proved by PW-1 Dhanna author of FIR as also PW-2 Gena, PW-3 Narsa and PW-5 Uda who are also injured witnesses and whose presence at the site has been rightly held proved by the trial court. Their testimony has also been corroborated by PW-14 Dr. Kanhaiyalal Sharma who did autopsy on the dead body of Deeta and found following ante mortem injuries on his person:

Stab wound 3.0 cm x 1.5 cm x cury deep (4.5 cm deep) on the posterior side below the scapula between 8th and 9th rib.

On dissection skin, muscle, pleura and lung get incised and whole of pleural cavity is filled with blood. Lung having incised wound 2cm x 1.0 cm x 1.0 cm and became smell, pale, colleps.

Incised wound 3 cm x 2.5cm x muscle deep on the posterior deltoid region of shoulder joint (left).

Incised wound 2.5 cm x 1.0 cm x bone deep on the anterior deltoid region of left shoulder region.

According to PW-14 Dr. Kanhaiyalal Sharma injury No. 1 in the ordinary course of nature was sufficient to cause death. None of the prosecution witnesses was able to say out of three sharp injuries found on the person of deceased which was caused by Nana accused appellant. Similarly, all the prosecution witnesses have stated that the injuries were caused on the back part of Deeta. They have also admitted that there was no enmity of any of the accused appellants with Deeta and, therefore, in the above factual matrix it cannot be said that accused appellant Nana had any intention or motive to cause murder of Deeta. However, the knowledge of likelihood of causing death by knife injury caused by Nana accused appellant to Deeta can be imputed. Therefore, at the most the offence falls u/s 304 Part-II read with Section 34 IPC and not u/s 302 IPC. The Apex Court in Masumsha Hasanasha Musalman Vs. State of Maharashtra, in the facts and circumstances proved therein has held that it was only when scuffle started taking place that the injuries could be caused. In the circumstances conviction u/s 304 Part-II IPC was held valid. Similarly, in Chavda Jivanji Chelaji and Others Vs. State of Gujarat, where deceased some time was standing up and other time was running and was surrounded by assailants and one particular fatal injury on the humerus was caused by some of them. In view of Hon''ble Apex Court it cannot be said that the accused appellant specifically intended to cause above injuries to the assailants and, therefore, convicition u/s 302 was substituted by 304 Part-II IPC. In Santosh Vs. State of Madhya Pradesh, the accused was convicted u/s 304 Part-I as injuries were inflicted on the limbs and vital parts of the body was deliberately avoided.

Without multiplying the authorities in the facts and circumstances found proved the conviction of accused appellant Nana for offence u/s 302 IPC is not valid and not based on correct assessment of the evidence available on the file. It seems the learned trial court have proceeded in the matter in a lackadaisical manner misreading the evidence.

Consequently, we accept the appeal of accused appellants Sawa and Bada, set aside the conviction and sentence and acquit them for the charges u/s 302/34 IPC. They are in custody, be released forthwith, if not required in any other case. However, appeal of accused appellant Nana is partly accepted. His conviction and sentence u/s 302/34 IPC is set aside instead he is convicted u/s 304 Part-II read with Section 34 IPC and awarded the sentence he has already undergone. Because he is in custody since 17.5.1995 till date and has already undergone more than six years imprisonment which according to us will meet the ends of justice. He is also in jail and be released forthwith if not required in any other case.