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Kanwaljit Singh Ahluwalia, J—Gordhan, father of the complainant Vinod (P.W. 6) and husband of Shanti (P.W. 12) on 27.10.2009 at 8:00 AM, in village Murrika was assaulted as a result thereof he died. In the written report (Exhibit-P/8), the complainant had named seven persons, namely Radhey s/o. Ramprasad, Teekam and Vishnu both sons of Ramey, Pawan s/o. Vishnu, Uttam s/o. Siyaram, Sunil s/o. Uttam, Rajjo s/o. Inder, as accused. In written report, it was specifically alleged that Radhey had caused Dhariya blow on the head of Gordhan, father of the complainant Vinod (P.W. 6). The said injury had proved fatal.
In the medical evidence, on the person of Gordhan deceased, one injury was found on the head and another injury was blackening of the eye. In cross-examination, Dr. Kedar Garg (P.W. 16) admitted that blackening of eye may be result of the impact of the fatal injury on the head.
The investigating agency had not sent Radhey s/o. Ramprasad and Rajjo s/o. Inder for the trial. The report of investigation was submitted against five accused namely Teekam, Vishnu both sons of Ramey, Pawan s/o. Vishnu, Uttam Chand s/o. Siyaram and Sunil s/o. Uttam.
Vinod (P.W. 6) in the court reiterated that Radhey had caused Dhariya blow on the head of the deceased Gordhan. This witness also improved the case of the prosecution by alleging Vishnu @ Pappu had given a lathi blow on the head of Gordhan. For this improvement, he was duly confronted. Be that as it may, the court of Additional Sessions Judge No. 2, Bayana, Bharatpur, out of five accused sent for trial, acquitted Pawan and Sunil vide impugned judgment dated 30.5.2013. The trial court convicted three accused Teekam, Vishnu and Uttam Chand for the offences under Sections 302 in alternative for offence under Section 302/34, 325 in alternative for the offence under Section 325/34 and for the offence under Section 323 IPC.
Having convicted the appellants for the above said offences, the trial court vide a separate order of even date sentenced the accused as under:-
"U/s. 302 or 302/34 IPC - to undergo life imprisonment and to pay a fine of Rs. 10,000/- each, in default of payment of fine to further undergo ten months R.I.
U/s. 325 or 325/34 IPC - to undergo five years R.I., and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo one month R.I.
U/s. 323 IPC - to undergo six months S.I.
Aggrieved against their conviction and sentence, the accused Teekam and Vishnu have instituted D.B. Criminal Appeal No. 454/2013, whereas the accused Uttam Chand has preferred D.B. Criminal Appeal No. 439/2013. In the both the appeals, prayer has been made that the conviction recorded and sentence awarded be set aside.
Vinod (P.W. 6), the complainant has also filed D.B. Criminal Appeal No. 531/2013 under proviso to Section 372 Cr.P.C. to assail acquittal of Pawan and Sunil. Vinod in this appeal has prayed that acquittal of Pawan and Sunil be set aside and they be convicted and sentenced in accordance with the provision of law.
Since in all the appeals, common judgment has been assailed, we shall decide all the three appeals together.
The only question which has baffled us is ''who is the author of the solitary injury on the head of Gordhan the deceased?'' The above question assumes importance in view of the inimical relations between the parties. It has been brought to our notice that earlier FIR No. 57/2009 was registered at Police Station Roopbas, Bharatpur for the offences under Section 147, 148, 149, 323, 341, 302 and 201 IPC for causing murder of Ramveer son of Gordhan, who is deceased in the present case. For murder of Ramveer, the appellant Uttam Chand, Vishnu and their family members were named as accused. Uttam Chand, Kishan and Hemant qua murder of Ramveer s/o. Gordhan, in that case were found innocent by the investigation agency. They were summoned as additional accused by the trial court by invoking Section 319 Cr.P.C. The order of the trial court was assailed by Uttam Chand, Kishan and Hemant by filing S.B. Criminal Revision Petition No. 66/2011. Vishnu and Teekam, both the appellants herein, also filed S.B. Criminal Miscellaneous Application No. 347/2011 questioning the order of summoning them by the trial court by invoking Section 319 Cr.P.C. A Single Bench of this Court vide order dated 27.6.2011 (Exhibit-D/5) granted prayer of the accused therein and had set aside the order passed by the trial court, whereby they were summoned to stand trial. Thus, the first round of litigation ended in favour of the accused appellants to D.B. Criminal Appeal No. 454 and 439/2013.
Having taken note of the above background, that the relations between the parties were inimical and also cautious of the fact that enmity is double edged weapon, it may be cause or motive for the accused to commit the offence, and at the same time, it can be a reason for the complainant party to falsely implicate accused or inflate number of accused, we shall proceed ahead with the present appeals before us.
Now we shall take note of the facts of the present case.
The criminal proceedings were set into motion on the basis of written report (Exhibit-P/8) submitted by Vinod (P.W. 6) before Dharmendra Kumar (P.W. 14), who was then posted as SHO, Police Station Roopbas. The written report when translated into English reads as under:-
"To
SHO,
P.S. Roopbas.
Sir,
It is submitted that today at about 8:00 AM, I and my father Gordhan were returning to our house from the fields. On the way, Hajari Pandit called us to take puffs of Hukka. My father started smoking Hukka. Meanwhile, with common intention, Radhey s/o. Ramprasad, Teekam and Vishnu both sons of Ramey, Pawan s/o. Vishnu, Uttam s/o. Siyaram, Sunil s/o. Uttam, Rajjo s/o. Inder by caste Brahmin, residents of Murrika, came armed with lathi, Farsi, Dhariya and Duranti. Immediately on arrival they started beating with lathi, Farsi, Dhariya and Duranti. Uttam caused lathi injury on my hand. Radhey gave a dhariya blow on the head of my father (Emphasis supplied). Then they all gave beating to my father due to which he died at the spot. My mother came to save us. She was also given beating. On hearing calls made by us, Santoshi Jatav and other persons arrived at the spot and saw the occurrence. They saved us from beating. Beating has been given to us due to old grudge as they had already murdered my brother. The report is presented. Legal action be taken.
Sd/- Applicant Vinod s/o. Gordhan, b/c Brahmin, r/o Murrika, Kotwali Roopbas, District Bharatpur (Raj.) 27.10.09."
On the basis of above written report (Exhibit-P/8), a formal FIR (Exhibit-P/16) bearing No. 342/2009 was registered at the Police Station Roopwas, Bharatpur.
Dr. Mangal Ram (P.W. 15) and Dr. Kedar Garg (P.W. 16) were members of the Medical Board which conducted autopsy on the dead body of the deceased Gordhan. The Post Mortem Report (Exhibit-P/34) was prepared and proved by Dr. Kedar Garg (P.W. 16). Dr. Kedar Garg had noted the presence of blackening of eye and a lacerated wound of 3" x 1" bone deep on the head.
Dr. Kedar Garg (P.W. 16) stated in the court that on the head of the deceased, there was only one injury on the head and the blackening of the eye is result of injury to head. It will be apposite here to reproduce exact words from the cross-examination of Dr. Kedar Garg (P.W. 16) as under:-
Dr. Mangal Ram (P.W. 15) on 27.10.2009 had examined Shanti (P.W. 12). As per Injury Report (Exhibit-P/8) following two injuries on the person of Shanti were found:-
"(i) Swelling with pain and tenderness, 6" x 4" on left shoulder.
(ii) Abrasion, 6" x 2", back of left side elbow"
As per X-ray Report (Exhibit-P/28), doctor had found fracture of clavicle, which corresponds to injury No. 1 on the left shoulder.
Dr. Mangal Ram (P.W. 15) on the said date also examined Vinod (P.W. 6) and as per Injury Report (Exhibit-P/9) had noted the following injuries on his person:-
"(i) Swelling with pain and tenderness, 6" x 4", on left shoulder.
(ii) Swelling with pain and tenderness, 6" x 6", left elbow.
(iii) Swelling with pain and tenderness, 6" x 4", on left hand.
(iv) Incised wound, 3" x 1/4" x 1/4" on left knee."
The said doctor (P.W. 15) further opined that as per X-ray Report (Exhibit-P/30), injury No. 3 had resulted into fracture of 1st, 3rd and 4th metacarpal bones.
We may notice here that only injury No. 4 on the knee has been found to be an incised injury having dimension 3" x 1/4" x 1/4". On the upper part of the knee, there is a very thin tight skin and it cannot be ruled out that such injury may be result of fall also.
From the perusal of the written report (Exhibit-P/8) on the basis of which formal FIR (Exhibit-P/16) was registered, following facts can be highlighted:-
(a) That the deceased Gordhan and his son Vinod (P.W. 6) were invited by Hazari Lal (P.W. 8) to smoke Hukka alongwith him.
(b) Out of seven persons, five accused were tried, Radhey and Rajjo came armed with weapons and had attacked the deceased Gordhan and Vinod (P.W. 6). Hazari Lal (P.W. 8) had not suffered any injury in the occurrence.
(c) In the FIR, it is specifically stated that Radhey had caused Dhariya blow on the head of the deceased, Gordhan.
(d) That Shanti (P.W. 12) hearing cries came in order to save her husband and son.
(e) That the motive for causing injuries was earlier murder of Ramveer brother of the complainant Vinod (P.W. 6).
We have noted that there is only one injury on the head of the deceased Gordhan and as per doctor conducting autopsy, another injury, blackening of eye was not an independent injury, but was the result of injury No. 1. According to the written report which led to the registration of FIR, this injury is specifically attributed to Radhey not sent for trial by the investigating agency.
Now we shall take note of the evidence of witnesses in the court.
Vinod (P.W. 6) in the court stated that about two years ago, at about 8:00 AM, he and his father were returning to house from their fields. When they reached near the house of Hazari Lal (P.W. 8), Hajari Lal called his father to smoke Hukka. This witness followed his father. When his father and Hazri Lal were smoking Hukka, Radhey, Pappu @ Vishnu, Teekam, Pawan, Sunil, Rajjo etc came armed with Farsa, Dhariya, lathi and Dantari etc. Radhey caused injury with Dhariya on the head of his father. Pappu @ Vishnu caused injury with a lathi on his father. This witness further stated that Uttam Chand caused him injury on the wrist. Pawan and Sunil caught hold of him. Vishnu caused a lathi injury on the shoulder. Teekam gave an injury on the knee. This witness further stated that after sometime, his mother also arrived at the spot.
In cross-examination, this witness (P.W. 6) stated that at the time of submitting written report (Exhibit-P/8) he was aware as to who caused him how many lathi blows. He was also aware as to who caused injury to his father. This witness further stated that before arrival of his mother, his father had received two injuries and he had received four injuries. This witness further stated that after his mother had arrived, no injury was caused to his father. This witness further stated that he is not aware whether Dhariya injury was caused to his father from blunt side or sharp side. The exact words of this witness are as under:-
Shanti (P.W. 12) another injured in the court stated that Vishnu caused a lathi bow on the back of the head of her husband Gordhan and Teekam gave him injury with Dhariya. Uttam caused injury with lathi on the forehead and she in order to save her husband lied over him.
The solitary injury on the head of the deceased as per testimony of Vinod (P.W. 6) is attributed to Radhey, who as per witness had caused the said injury with dhariya and this witness is not aware whether this injury was caused from blunt side or sharp side of dhariya. Vinod (P.W. 6) further stated that Pappu @ Vishnu had also caused injury with a lathi on the head of the deceased.
Shanti (P.W. 12) has stated that Vishnu had caused injury on the head of her husband. Teekam caused injury with dhariya and Uttam Chand also caused injury with lathi. However, Vinod (P.W. 6) in a very categoric terms has stated in the court that her mother had arrived at the spot after his father had already received injuries. We shall reproduce here relevant portion from the testimony of Vinod (P.W. 6), in which he categorically stated that his mother arrived after the injuries were already caused to his father Gordhan:-
Hazari Lal (P.W. 8) in the court stated that his father, one Laxman Master and other persons were smoking Hukka. This witness further stated that at that time he had gone to village and when he heard noise. He came running. This witness stated that accused were causing lathi blows. This witness further stated that which accused caused injuries to whom, he is not aware. The exact words of the witnesses are as under:-
Hazari Lal (P.W. 8) in the court has testified that at time of occurrence Laxman Singh (P.W. 2) was also present. Laxman Singh has been examined in the court as P.W. 2. Vinod (P.W. 6) is totally silent regarding the presence of Laxman Singh (P.W. 2) as eyewitness of the occurrence. Vinod (P.W. 6) was confronted with his statement (Exhibit-D/1) recorded under Section 161 Cr.P.C. and in the said statement, this witness had admitted the presence of Laxman Singh (P.W. 2).
Laxman Singh (P.W. 2) in the court stated that after the injuries were caused, he had seen Pappu, Uttam coming to the spot. Pappu is the another name of Vishnu. He is called as Vishnu @ Pappu. This witness who is an independent witness stated that Uttam and Vishnu had arrived at the spot after the injuries were already caused to deceased Gordhan. Hazari Lal (P.W. 8) in the court stated that he is not aware as to which accused caused injuries to the deceased Gordhan. Vinod (P.W. 6) in the written report (Exhibit-P/8) leading to registration of FIR (Exhibit-P/16) has stated that Radhey had caused Dhariya blow on the head of the deceased Gordhan. In the court Vinod (P.W. 6) deposed that Radhey had caused injury with Dhariya and he cannot say whether he had given Dhariya blow from the sharp side or from the blunt side.
Shanti (P.W. 12), as per witness Vinod (P.W. 6) arrived at the spot after the injuries were caused to the deceased, Gordhan. In the court he stated that Pappu, Teekam and Vishnu all the three had caused an injury each on the head of the deceased Gordhan. As we have already stated that only one injury has been found on the head of deceased Gordhan and therefore, cannot be ruled out that the said injury was caused by Radhey, who as per the initial version, was the only person who caused injury on the head of the deceased, Gordhan.
Taking totality of circumstances, we cannot say with precision that the head injury has been caused on the person of deceased Gordhan by Vishnu alone. Thus, in the facts and circumstances of the case, it is difficult to determine as to who was the author of the fatal injury. Admittedly, one of the accused Radhey who was specifically named co-author of the fatal injury has not been sent for the trial.
As per initial version given in the written report (Exhibit-P/8), Radhey was the author of the fatal injury. It is now settled legal position that where the author of the fatal injury cannot be determined, and one of the accused is acquitted or not sent for the trial, conviction of all the accused for the offence under Section 302/34 IPC is not tenable. Legal position on this aspect is no longer res integra.
In case of Ratan & Ors. v. State of Rajasthan [D.B. Criminal Appeal No. 1190/2005, decided on 09.01.2015] a Division Bench of this court of which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member considering the above issue had noted the law as under:-
"Now, it is settled legal position that if author of the fatal injury is not known, and one accused has been acquitted, or author of the fatal injury has been acquitted, remaining accused shall not be responsible for murder, but for causing grievous injury.
In Baul and Another Vs. State of U.P., AIR 1968 SC 728 : (1968) CriLJ 872 : (1968) 2 SCR 450 , Hon''ble Apex Court has held as under:-
"7. No doubt the original prosecution case showed that Sadhai and Ramdeo both hit the deceased on the head with their lathies. One is tempted to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. If there was common intention established in the case the prosecution would not have been required to prove which of the injuries was caused by which assailant. But when common intention is not proved the prosecution must establish the exact nature of the injury caused by each accused and more so in this case when one of the accused has got the benefit of the doubt and has been acquitted. It cannot, therefore, be postulated that Sadhai alone caused all the injuries on the head of the deceased. Once that position arises the doubt remains as to whether the injuries caused by Sadhai were of the character which will bring his case within S. 302. It may be that the effect of the first blow became more prominent because another blow landing immediately after it caused more fractures to the skull than the first blow had caused. These doubts prompt us to give the benefit of doubt to Sadhai. We think that his conviction can be safely rested under S. 325 of the Indian Penal Code, but it is difficult to hold in a case of this type that his guilt amounts to murder simpliciter because he must be held responsible for all the injuries that were caused to the deceased. We convict him instead of S. 302 for an offence under S. 325, Indian Penal Code and set aside the sentence of imprisonment for life and instead sentence him to rigorous imprisonment for seven years. As regards Baul his instigation was likely to result in the kind of injury which was caused to the deceased. The least that could have happened was a grievous injury. In these circumstances, we do not think that there is any room for interference in his case. His appeal must therefore be dismissed."
In Karnail Singh Vs. State of Punjab, AIR 1977 SC 893 : (1977) CriLJ 550 : (1976) 4 SCC 816 , Hon''ble Apex Court considered the same issue and held as under:-
"2. The prosecution case regarding the assault by the appellant Karnail Singh on Sarwan Singh deceased has been proved beyond reasonable doubt by the two courts below. The short question for consideration in this case is as to what is the nature of the offence that the appellant has committed. As Zora Singh has been acquitted the charge under Section 302/34 I.P.C. disappears and the question now is as to what offence the appellant, who alone must have assaulted the deceased, has committed. In view of the acquittal of Zora Singh there is no evidence to show as to what particular injury was caused on the deceased by the appellant although he was armed with Kirpan. In these circumstances, it is not possible to convict the appellant under Section 302 I.P.C. simpliciter. As however it is indisputable that the accused was armed with Kirpan and used the same in assaulting the deceased, the accused must be held to have committed on offence under Section 326, viz., the offence of grievous hurt, because an injury which was caused was dangerous to life, which ultimately resulted in the death of the deceased. For these reasons we, therefore, allow this appeal to this extent that the conviction of the appellant is altered from one under Section 302 I.P.C. to that under Section 326 I.P.C. and the sentence is reduced from life imprisonment to 7 years'' Rigorous Imprisonment."
In State of Rajasthan Vs. Kishan Singh & Ors. (2002) 10 SCC 160, it has been held as under:-
"5. --------------------------. When the author of the fatal injury becomes doubtful - whether it was one of the accused-respondents before us or one of the accused acquitted by the trial court, against whose acquittal the State never filed any appeal, it would be difficult to find either Kishan Singh or Hem Singh guilty of causing that injury. No fault can, therefore, be found with the judgment of the High Court in acquitting the respondents of the charge under Sections 302/34 IPC. We are not satisfied that common intention to cause death of deceased Mastan Singh can be attributed to the respondents on the basis of evidence on the record. We agree with the High Court that the evidence in that behalf is completely lacking and discrepant. That being the position, both Kishan Singh and Hem Singh could only be convicted for the acts committed by them and as disclosed by the first informant at the earliest point of time. The injuries so attributed to them bring their case only under Sections 324/34 IPC and they were rightly convicted and sentenced for those offences by the High Court. In our opinion, the judgment of the High Court is well reasoned and based on proper appreciation of evidence. The acquittal of the respondents for the offence under Sections 302/34 IPC is well merited. It does not call for any interference at our hands. The appeal against acquittal is, accordingly, dismissed."
In view of the settled legal position which has been noticed above by us, we are of the view that since the author of the fatal injury is not known, and one of the accused has been acquitted, and no appeal against the acquittal has been filed by the State, then, the remaining accused shall be responsible for causing grievous injury and not for offence of murder read with section 34 IPC or with aid of Section 149 IPC."
In these circumstances, for the reasons stated above, the conviction of the accused appellants cannot be sustained for offence under Section 302 or 302 read with Section 34 IPC. Therefore, we shall hold all the three accused namely Teekam, Vishnu and Uttam Chand guilty of offence under Section 325/34 IPC for causing injury to the deceased Gordhan.
So far acquitted accused namely Pawan and Sunil are concerned, they have not caused any injury in the occurrence. The only role assigned to them is that they caught hold of Vinod (P.W. 6) to facilitate causing of injury by other accused. Vinod (P.W. 6) had only suffered four injuries, which is swelling on left shoulder, swelling on left elbow and swelling on left hand and there was an incised wound on the left knee. It is difficult to believe that if the arms of the witness Vinod (P.W. 6) are caught, he can suffer injury on the arm. Injuries No. 1, 2 and 3 are on the left arm starting from shoulder to the hand. Thus, the story that the accused Pawan and Sunil caught hold of Vinod (P.W. 6), seem to be exaggeration to inflate number of accused. The finding given by the trial court regarding acquittal of Pawan and Sunil is one view which is possible in the facts and circumstances of the case and we will be hesitant to disturb that view in an appeal against the acquittal.
Consequently, we dismiss the appeal [D.B. Criminal Appeal No. 531/2013] preferred by the complainant Vinod (P.W. 6) assailing the acquittal of Pawan and Sunil, as the view formulated by the trial Judge cannot be said to be perverse, hence, no inference is warranted.
So far, the appellants namely, Teekam, Vishnu and Uttam Chand are concerned, we have held that at the most they can be held guilty of offence under Section 325/34 IPC. However, relying upon the judgments of the Hon''ble Supreme Court, where they had converted the offence for the reason that author of the fatal injury is not known and one of the accused has been acquitted or not sent for trial, we award sentence of seven years to all the three appellants. However, we impose fine of Rs. 10,000/- upon each of the appellants namely, Teekam, Vishnu and Uttam Chand. In default of payment of fine, they shall undergo one year R.I. each. The fine so deposited shall be paid as compensation to the legal heirs of the deceased Gordhan. Modified sentence awarded by us after conversion of offence shall run concurrent along with sentence awarded by the trial court on other two counts.
Accordingly, D.B. Criminal Appeal Nos. 454/2013 and 439/2013 stand disposed of, in above terms.