Skip to content


Ghisa and ors. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1976CriLJ39
AppellantGhisa and ors.
RespondentThe State of Rajasthan
Cases ReferredNarayan Tewary v. State of West Bengal
Excerpt:
.....8. secondly, the learned counsel for the petitioners urged that in the police statements the prosecution witnesses have failed to assign specific injuries to a particular accused, and they have further failed to particularise the part of the body on which each accused caused injuries to the victims. if the prosecution failed to examine such witnesses, it was the duty of the court to have examined them under section 540 cr. the trial court as well as the first appellate court have taken into consideration the infirmities pointed out by the learned counsel in the statements of the witnesses and have found them reliable concerning the petitioners. he was satisfied on the evidence that the case of the prosecution had been established. the jurisdiction of the high court is to be..........the prosecution case is that the relations between the party of the accused and those of the injured persons were strained. both the groups were involved in litigation. on february 24, 1968 at 2 p.m., manila (p.w. 2) was working at the jamun-wala (black berry) well situated in khejdawala field. deva was taking his meals, nainu was providing fodder to the bullocks and buddha was grazing the she-goats. all the eleven accused armed with axes and lathis appeared on the scene of occurrence. the accused ghisa asked mangla (later injured) to desist from irrigating the field from the well. on mangla refusing to act up to his wishes, ghisa ordered his associates to teach him a lesson. thereupon all the accused persons be laboured mangla, ladu, lala and rahima. the injured were admitted as.....
Judgment:
ORDER

M.L. Shrimal, J.

1. The eleven accused viz. Ghisa Ladu, Lala, Rahima, Alladin, Ramzan, Sohan, Rama, Sua, Mst. Tegi and Mst. Phundi were tried in the Court of Assistant Sessions Judge, Ajmer in connection with what happened on February 24, 1968 at about 2 pa ra. In the course of that occurrence Mangla, Nainu, Deva and Budha sustained injuries. The accused Ghisa, Ladu and Lala were convicted by the Assistant Sessions Judge, under Section 326 Indian Penal Code, each of whom was sentenced to four years' rigorous imprisonment, and a fine of Rs, 500/- in default of the payment of which to undergo rigorous imprisonment for a further period of six months. The accused Rahima was convicted under Section 324, I. P. C, and sentenced to two years' vigorous imprisonment and to pay a fine of Rs. 200/-, hi default of the payment of which to undergo rigorous imprisonment for a further period of two months. The. remaining seven accused were acquitted by the Assistant Sessions Judge. On appeal the learned Additional Sessions Judge, Ajmer acquitted the accused Rahima. He upheld the conviction of the accused Ghisa, Ladu and the Lala under Section 326, I. P. C, but reduced the sentence to two years' rigorous imprisonment and a fine of Rs. 300/-, in default of the payment of which each of the accused was to undergo rigorous imprisonment for a further period of three months. The convicted accused have now come up in revision before this Court against the judgment of the Additional Sessions Judge, Ajmer dated January 18, 1972.

2. The prosecution case is that the relations between the party of the accused and those of the injured persons were strained. Both the groups were involved in litigation. On February 24, 1968 at 2 p.m., Manila (P.W. 2) was working at the Jamun-wala (Black Berry) well situated in Khejdawala field. Deva was taking his meals, Nainu was providing fodder to the bullocks and Buddha was grazing the she-goats. All the eleven accused armed with axes and lathis appeared on the scene of occurrence. The accused Ghisa asked Mangla (later injured) to desist from irrigating the field from the well. On Mangla refusing to act up to his wishes, Ghisa ordered his associates to teach him a lesson. Thereupon all the accused persons be laboured Mangla, Ladu, Lala and Rahima. The injured were admitted as indoor patients in the Jawahar Lai Nehru Hospital, Ajmer. Dr. Kauodia informed the Station House Officer, Civil Lines that four injured persons who had sustained injuries by sharp-edged weapons were admitted in the Surgical Ward. The Station House Officer deputed the Head Constable Gulab Singh, who recorded the statement Ex. P. 1 of Nainu (injured) and sent the same to the Police Station, Pushkar where the case was registered. The police during investigation arrested all the accused persons. Blood-stained axes Exs. A.8 to A.10 were recovered at the instance of the accused Ghisa, Ladu and Lala. The information memos recorded by the police are Ex. P,4, Ex. P.3 and Ex. P.5 respectively. Bloodstained 'lathi' Ex. A.7 was recovered at the instance of the accused Rahima. The information memo recorded by Hari Ram, Station House Officer (P.W. 14) is Ex. P.6. All the articles were seized and sealed on the spot. The recovery memos of the axes recovered are Ex. P.13: Ex: P.12 and injured were examined by Dr. B. P. Singh and their injuries were also X-Rayed by Dr. M. Saxena. Deva suffered three incised wounds, out of which injury on tibia and tabula were found to be grievous. Nainu suffered I wo incised wounds, out of which injury No: 2 was found to be grievous. Mangla sustained three incised wounds out of which two injuries were found to be grievous. Budha sustained three injuries out of which two were caused by a sharp-edged weapon and the third by a blunt one. The police after usual investigation submitted challun against the eleven accused persons including the petitioners in the Court of Additional Munsiff-Magistrate, Ajmer. The learned Magistrate committed all the accused to the Court of Sessions Judge, Ajmer to take their trial under Sections 147, 148, 307 and 31l read with Section 149. The learned Sessions Judge transferred it for trial to the Court of Assistant Sessions Judge, Ajmer. The accused denied the prosecution case about their haying participated in the assault on the injured, The prosecution examined fourteen witnesses in support of their case. The statement of Dr. B. P. Singh recorded by the Committing Court was taken on record of the trial court. The accused examined D. W. Narsinchdas, D. W. 3 Bakhta, D. W. 4 Samda and the accused Ghisa entered the witness-b is D. W. 1 in his own defence under Section 342A Cr.P.C.

3. The learned Assistant Sessions Judge acquitted seven out of the eleven accused viz. Alladin, Ramzan, Sohan, Sua, Rama, Mst. Tegi and Mst. Phundi giving them the benefit of doubt.

4. The learned Assistant Sessions Judge held that the plea of the accused that all the four injured persons fought between themselves and that the injuries were inflicted by them inter se is wholly untenable. He found that the accused Ghisa caused grievous hurt to Mangla, Ladu caused grievous injuries to Nainu and Lala caused grievous hurt to Deva. All the three accused were armed with axes and they caused grievous hurts lo the abovementioned three injured persons with sharp-edged weapons. He further held that the accused Rahima caused injuries to Budha. On the basis of the above finding lie convicted the accused Ghisa, Ladu and Lala under Section 326 I. P. C, and Rahima under Section 324 I. P. C, and sentenced them as mentioned above. The convicted accused preferred an appeal in the Court of Additional Sessions Judge, Ajmer who by his judgment dated January 18, 1972 partly accepted the appeal and acquitted the accused Rahima. He maintained the conviction of the accused Ghisa, Ladu and Lala under Section 323 I. P. C, but reduced the sentence as men Honed above, The three convicted accused petitioners have come up in revision before this Court.

5. Mr. Surolia, learned Counsel for the petitioners has vehemently urged that the evidence of the eye witnesses was too untrustworthy to constitute u safe basis for conviction of the petitioners. He further urged that the evidence adduced by the prosecution in this CE-&O; suffers from a number of infirmities and the conviction is liable to be set aside. Shri H- N. Calla, appearing on behalf of the State, has pleaded for the correctness of the view taken by the learned Additional Sessions judge.

6. The learned Counsel for the petitioners firstly urged that eight, out of the eleven accused challaned by the police, have been acquitted. Thus the testimony of all the four eye witnesses was held to lie false regarding the eight accused, and so it would not be proper or sate to convict the three petitioners on such flimsy evidence. It is a fact that the trial Court acquitted seven of the accused and the first appellate court acquitted one of the accused, but none of the two courts held the testimony of the prosecution witnesses false regarding the acquitted accused. Both the courts have given benefit of the doubt to the accused, in my opinion the acquittal of the aforementioned accused does not detract the value of the statement of all the four injured witnesses. In the case of Ram Ratan v. State of Rajasthan : [1962]3SCR590 , His Lordship Hon'ble Wanchoo J.. speaking for the court, laid down the law as Follows: -

Lastly it: was urged that Jawanaram had named five assailants and at least two have been acquitted and that shows that Jawanaram is not wholly reliable. It is enough to point out that the Sessions Judge gave the benefit of doubt so far as two accused persons were concerned. He did not told that janwanaram's evidence was false with respect to those two persons.

7. The maxim falsus in uno falsus in omnibus is not a sound rule to apply, looking to the conditions in this country and so it is the duty of the court in cases where the witness has been found to have given unreliable evidence in regard to certain particulars to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and the substratum of the pro sedition case remains unimpaired on the whole, the court should uphold the prosecution case to the extent it is considered safe and trustworthy.

8. Secondly, the learned Counsel for the petitioners urged that in the police statements the prosecution witnesses have failed to assign specific injuries to a particular accused, and they have further failed to particularise the part of the body on which each accused caused injuries to the victims. In their statements before the trial court, however, they have stated the portion of the body on which each convicted accused caused the injuries on the person of each victim. Thus they have improved their statements and have a scant regard for the truth. I do not find much force in tins argument. The learned Counsel tailed to substantiate the argument from the record. In the statements Ex. D2, Ex D. 4 and Ex D. 8 recorded by the investigating officer P.W. 14 Hari Ram, the names of the accused who caused injuries to each. victim have been mentioned. No doubt in the statements recorded by the Head constable Gulab Singh these details have not been mentioned, but these statements were recorded prior to the recording of the first information report and registration of the case at the police station, Pushkar. Be that as it may, the fact remains that these are only omissions. It is a settled position of law that omissions unless by necessary implication deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box, and the argument that they must be in regard to important features of an incident which are expected to be included in the statement made before the police is not tenable.

9. Thirdly, it was urged that admittedly Bakhta, Samda and other persons of the village arrived on the scene of the occurrence, but they have not been examined by the prosecution. It was the duty of the prosecution to have examined independent persons. If the prosecution failed to examine such witnesses, it was the duty of the court to have examined them under Section 540 Cr.P.C. Suffice it to say, that two of the witnesses whose names could be ascertained in cross-examination have been examined in defence, and so their non-production by the prosecution cannot be of much avail to the accused. The prosecution had examined the eye-witnesses who had received injuries and were necessary for unfolding the narration.

10. I have read the statements of all the eye-witnesses, viz. P.W. 1 Nainu, P.W. 2 Mangla, P. W'. 3 Deva and P.W. 4 Budharam. They are injured persons. Their presence on the scene of occurrence cannot be doubted. No doubt they are interested witnesses as there had been a consistent course of litigation between the parties, but it does not stand to reason why an injured person should leave the real culprit and substitute an innocent person in place of the real assailant. In Jamuna Choudhary v State of Bihar 1974 Cri LR (SC) 73 : 1974 Cri LJ 890) their Lordships of the Supreme Court were pleased to observe that:

An injured witness in any case would not easily substitute a wrong person for his actual assailant.

11. All the four injured witnesses have consistently stated that the accused Ghisa caused grievous hurt to Mangla by an axe. The accused Latin caused grievous hurt to Nainu, with a sharp-edged weapon, and Ladu caused incised wound on the person of Deva. Each one of them caused grievous hurt by axe. The two courts below have dealt with the case. The evidence of all the four injured witnesses has been believed and relied upon concurrently by the two courts below against the petitioners. In spite of the lengthy cross-examination, nothing could be brought out on the basis of which the veracity of the statements of the prosecution witnesses can be doubted. They have unfolded the entire prosecution story in detail. In their cross-examination they have emerged with credit, Barring the unconsequential narrations, the substratum of their evidence has throughout been consistent. I do not have any reason to take a different view of the evidence from that taken by the courts below. The trial court as well as the first appellate court have taken into consideration the infirmities pointed out by the learned Counsel in the statements of the witnesses and have found them reliable concerning the petitioners. His Lordship Hon'ble Venkatarama Ayyar J., speaking for the Court in. Narayan Tewary v. State of West Bengal : AIR1954SC726 laid down the law thus:

He was satisfied on the evidence that the case of the prosecution had been established. The High Court quite rightly declined to interfere in revision with that finding. Even in this Court the argument of the appellant turned on what is essentially a matter of appreciation of oral evidence. Under the circumstances the order of the High Court cannot be said to be erroneous.

Still further the observation made by Hon'ble the Supreme Court in Amarchand Agarwala v Shanti Bose : 1973CriLJ577 laid down the law as under:

Even assuming that the High Court, was exercising jurisdiction under Section 439, in our opinion, the present was not a case for interference by the High Court. The jurisdiction of the High Court is to be exercised normally under Section 439, Criminal Procedure Code, only in exceptional cases, when there is a glaring defect m the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.

12. Lastly, it was urged that since the occurrence which led to the conviction of the petitioners is of 1968 and seven years have elapsed, a lenient view in the matter of sentence may be taken and the same may be reduced to the sentence already undergone. It is true that the lapse of long period between the date of commencement of trial and hearing of appeal by the High Court is a factor which in the context of a particular case, may, in conjunction with other circumstances, justify the reduction of sentence. But this is not an absolute rule justifying interference with the discretion of the trial Court in the matter of sentence in every case. The criminals who mercilessly use sharp-edged weapons against unarmed persons should not be allowed to carry an impression that they can deprive others of their limb if they are prepared to undergo a comparatively short term of imprisonment.

13. In the case at hand the total number of injuries sustained by the injured persons was eleven out of which five were grievous incised wounds. There are no extenuating circumstances which can legitimately be urged in support of the contention that the sentence should be reduced. The gravity of an offence is not attenuated if a case has progressed leisurely, whoever might be responsible for it,

14. The revision is, therefore dismissed. The accused petitioners Ghisa, son of Alladin, Ladu son of Alladin, and Lala sun of Ladu are on bail. They shall surrender to their bail bonds. The Chief Judicial Magistrate, Ajmer is directed to get them arrested and send them to jail to undergo the remaining term of sentence awarded to them by the Additional Sessions Judge, Ajmer, arid upheld by this Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //