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Hanja and anr. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Jail Appeal No. 271 of 1977
Judge
Reported in1983WLN(UC)348
AppellantHanja and anr.
RespondentThe State of Rajasthan
Excerpt:
.....kala left the well for the purpose of going towards his house. hanja and kura came runing and hanja fired muzzle loading run at kala in order to kill him and and the gun shot fired by hanja hit kala on the palm of left hand as well as the left side of the chest kura gave a blow with the stick on the back-side of the neck of kala as a result of which, he fell down and died. surendra kumar (pw 2) is the medical officer who bad conducted the post-mortem examinalion of the deceased and has proved the post-mortem report ex. hanja has further stated that two days prior to the incident, his sheep had entered in to the field of the deceased as a result of which the deceased became angry and that on the date of the incident, in the morning, when he was going to graze his sheep and was..........in their statement recorded under section 313 cr. pc, denied the prosecution case appellant kura stated that he was not present at the scence of occurrence and that he had been falsely implicated. appellant hanja stated that there was dispute between him and kala in respect of a field and that nawalsingh was also against him because he had not sold a tree to him and, therefore, they had deposed falsely against him. hanja has further stated that two days prior to the incident, his sheep had entered in to the field of the deceased as a result of which the deceased became angry and that on the date of the incident, in the morning, when he was going to graze his sheep and was passing by the well, the deceased came there armed with a gun and fired towards him and that when he tried to.....
Judgment:

S.C. Agarwal, J.

1. Appellants Hanja and Kura wee prosecuted before the Additional Sessions Judege, Udaipur, on charges Under Sections 302 and 302/34, IPC, for having commited the murder of one Kala on the morning of 18.6 75 in village Mundwada. The Additional Sessions Judge, has convicted appellant Hanja of the offence Under Section 302 IPC and appellant Kura of the offence Under Section 302/34 IPG. Both have been sentenced to imprisonment for life.

2. The case of the prosecution is that on 18.6.75 at 9.00 a.m., one Kaduwa (PW 1) lodged a report, Ex. P 1 at Police Station, Kherwara, district Udaipur, where it was stated that Kaduwa had gone to his well for the purpose of fetching water in the morning and he found the accused Kala at the well slightly away, near the 'Badh' , the appellants Hanja and Kura were standing Hanja was armed with a gun and Kura was hiving a stick. Kala told him that Hanja and Kura were demanding money from him which he has not been able to pay to them and, therefore, both of them had come to kill him. The reupon Kaduwa told Hanja and Kura that he will not allow them to kill in his field. Sharda (P.W. 9), the daughter of Kala, also arrived there. After saying that he was going to pay money to them, Kala left the well for the purpose of going towards his house. Kaduwa and Sharda followed him. When Kala reached the 'Mahuwa' tree outside the field. Hanja and Kura came runing and Hanja fired muzzle loading run at Kala in order to kill him and and the gun shot fired by Hanja hit Kala on the palm of left hand as well as the left side of the chest Kura gave a blow with the stick on the back-side of the neck of Kala as a result of which, he fell down and died. On the basis of the aforesaid report (Ex. P 1), a case Under Section 302/34 IPC was registered and the investigation was commenced.

3 Abdulla Khan (PW 10) who posted as head Mohrir at Police Station, Kherwada, took up the investigation and proceeded to scene of occurrence. After reaching there, he prepared the site plan (Ex. P. 3) site-inspection memo (Ex. P 2) and the inquest report (Ex. P 4). The postmortem examination of the dead body of the deceased was conducted by Dr. Surendra Kumar (P W 2) Medical Officer, Government Dispensary, Kherwada on 18.6.75 at 4 p.m. According to the post-mortem report (Ex. P 5), three forearm wounds were found on the person of the deceased. The said wounds were on the left chest wall and left lateral side of abdominal wall, left forearm and the left hand. Six pellets were recovered from the aforesaid woulds. In addition to the aforesaid fore arm wounds, the medical officer found a bruise 3' x 1' on the back of the neck posteriorly and an abrasion 1' x 1' on anterior surface of right leg in lower part. According to the opinion of the Medical Officer, the cause of death was internal haemorrhage and injury on the vital organ, lung, due to gun shot wounds and that the death had occurred about eight hours before the post-mortem examination. The appellants were arrested on 18-6-75 vide memos of arrest Ex. P 9 and Ex. P 10. On the same date, appellant Hanja produced a gun which was seized vide memo Ex P 6. On the basis of information (Ex. P 16) given by appellant Hanja, the licence for the said gun was recovered from the house of the said appellant and the same was seized vide memo Ex. P 7. Appellant Kura gave information, vide memo Ex. P, 15. with regard to his having concealed a lathi and on the basis of the said information, a lathi was recovered from the house of the said appellant Kura vide memo Ex P 8. The gun and the pollets were sent for examination to the Central Forensic Science Laboratory, New Delhi and the report (Ex. P 11) received from the Central Forensic Science Laboratory indicated that the said gun was in working order and had been fired through but no opinion about the time of last firing could be given. The said report also indicated that the six pellets which were sent could have been fired from the gun in question but defenite linking could not be estalished. After completing the investigation, the Police filed a chargesheet against both the appellants in the Court of Judicial Magistrate, Common Court, Udaipur and Durngarpur. The Judicial Magistrate committed the case for trial to the court of sessions and there upon, the Additional Sessions Judge framed the charges Under Section 302 against appellant Hanja and the charge Under Section 302/34 against appellant Kura. The appellants pleaded not guilty to the said charges and claimed to be tried.

4. The prosecution, in support of its case, examined 18 witnesses. Kaduwa (PW 1) and Sharda (PW 9) have been examined as the eye-witnesses of the occurrence Dr. Surendra Kumar (PW 2) is the Medical Officer who bad conducted the post-mortem examinalion of the deceased and has proved the post-mortem report Ex. P 5. Nawalsingh (PW 3) has proved the extra judicial confession, said to have been made of to him by appellant Hanja on 18-6 75 at Kherwada hospital. Ratanji (PW 4) and Ramji (PW 5) are the attesting witnesses of the memo of site inspection (Ex. P 2), site-plan (Ex. P 3) and Panchanama (Ex. P 4) Rupsee (PW 6) and Gautam (PW 8) are the attesting witnesses of the seizure memos (Ex P 7) and (Ex. P 8). Kodarlal (PW 7) has been examined to prove that appellant Hanja was claiming a sum of Rs.300/-from the deceased and that on 16-6-75, i.e, two days prior to the incident, a dispute had taken place between the appellants and the deceased With regard to the payment of the aforesaid amount. Abdulla Khan (PW 10) and Chauthmal (PW 11) are the Police Officers who had conducted investigation in the case. Homa PW 11) is the attesting witness of the inquest report, Ex. P 4. Noopa (PW 16) is the attesting witnesses of the seizure memo Ex. P 6. Ratansingh (PW 13) was the constable attached to the office of the Superintendent of Police, Udaipur, who carried the packets containing the gun and the pellets from the office of Superintendent of Police, Udaipur, to the Central Forensic Science Laboratory, New Delhi, Ishaq Mohammed (PW 14) was the Police constable who had carried the sealed packets from Malkhana of Police Station. Hathipur, to the Chemical Laboratory at Jaipur. Puran Prakash (PW 16) was the Tehsildar cum Executive Magistrate, Kherwada, who conducted the identifiation proceedings on 13-6-76 with regard to the identification of the gun and the stick and has proved the memo, Ex. P 15, that was prepared by him in respect of the aforesaid identification proceedings. Bishansingh (PW 17) is the Police Constable who carried the sealed packets from the Police Station, Kherwada, to the Office of the Superintendent of Police, Udaipur.

5. The appellants, in their statement recorded Under Section 313 Cr. PC, denied the prosecution case Appellant Kura stated that he was not present at the scence of occurrence and that he had been falsely implicated. Appellant Hanja stated that there was dispute between him and Kala in respect of a field and that Nawalsingh was also against him because he had not sold a tree to him and, therefore, they had deposed falsely against him. Hanja has further stated that two days prior to the incident, his sheep had entered in to the field of the deceased as a result of which the deceased became angry and that on the date of the incident, in the morning, when he was going to graze his sheep and was passing by the well, the deceased came there armed with a gun and fired towards him and that when he tried to prevent him from doing so, a scuffle took place and during the course of that scuffle, the gun got fired and the deceased was hit. Hanja denied that be had a gun with him or that he had fired the same. Hanja also denied the presence of appellant Kura at the time of the incident and stated that at that time, he had deceased alone were there. The appellants examined three witnesses in their defence, namely, Bahadursingh (DW 1) Kala PW 2 and Yar Mohammd DW 3. The appellants also submitted submissions Under Section 314, Cr. PC.

6. The Additional Sessions Judge held that Kala had died on 18.6.75 as a result of the gunshot wounds sustained by him and that the gun Ex. 1 which was recovered from the possession of the appellant Hanja belonged to the appellant Hanja. The Additional Sessions Judge, after placing reliance on the testimony of Kaduwa (PW 1) and Sharda (PW 9) held that appellant Hanja had fired the gun which caused gunshot injuries on the person of Kala deceased, which resulted in his death. The Additional Sessions Judge also held that appellant Kura gave a blow with a Lathi on the back of the neck of the deceased. The Additional Sessions Judge did not, however, accept the testimony of Nawalsingh (PW 3) with regard to the extra-judicial confession said to have been made by appellant Hanja to him. The Additional Sessions Judge further found that from the evidence adduced by the prosecution it was established that the appellants were demanding a sum of Rs.300/- from the deceased which amount was not paid by the deceased and this fact was also told by the deceased to Kaduwa (PW 4) shortly before the incident. In view of the findings aforesaid, the learned Additional Sessions Judge held that the appellant Hanja had committed the offence punshable Under Section 302 IPC. As regards appellant Kura, the Additional Sessions Judge held that both the appellants were brothers and both had come armed to the scence of occurrence and both of them had a dispute with the deceased with regard to the payment of money and further more that after Hanja has fired the gun, Kura had given a blow with a lathi and that he participated in the incident and, therefore, both of them shared the common intention to commit the murder of the deceased. The Additional Sessions Judge, therefore, held appellant Kura guilty of the offence Under Section 302/34 IPC. Both the appellants have been senteneed to imprisonment for life. Feeling aggrieved by their conviction and the sentence imposed on them, the appellants have filed this appeal from jail.

7. We have heard Shri N.N. Mathur, the learned Counsel for the appellants and Shri R.C. Maheshwari, the learned Public Prosecutor for State.

8. Shri Mathur has submitted that the only evidence that has been adduced by the prosecution to establish the guilty of the accused-appellants is that of the two eye-witnesses, viz, Kaduwa (PW 1) and Sharda (PW 9), With regard to the testimony of Sharda (PW 9), Shri Mathur has submitted that she was admittedly at her house and the evidence of the investigating officer officer, Abdulla Khan (PW 10) shows that the distance of the house from the scene of occurrence is two to three furlongs. Shri Mathur has also submitted that from the evidence of Kaduwa (PW 1) and Sharda (PW 9), it appears that Sharda come to the scene after the deceased had raised a cry and that in view of the distance of 2.3 furlongs of the house from the scene of occurrence, Sharda (PW 9) could not have arrived at the scene of occurrence so soon as to he the eye-witness of the occurrence and that Sharda must have arrived after the occurrence had taken place and that she is not an eye-witness of the occurrence. Shri Mathur has also submitted that reliance cannot also be placed on the testimony of Kaduwa (PW 1) in view of the contradictions in his statement about the place of occurrence. Shri Mathur has also pointed out that Kaduwa (PW 1) has stated that he had lodged an oral report at the Police Station and that the report (Ex. P 1) was prepared at the scene of occurrence after the Police Officer had arrived at the scene of occurrence and that his thumb impressions were obtained on the said report at the scene of occurrence. Shri Mathur has submitted that in view of the aforesaid statement of Kaduwa (PW 1) it is apparent that the first information report, Ex. P 1, is a post-investigation document and is inadmissible imevidence.

9. During the course of his statement in examination-in chief Kaduwa (PW 1) has stated that the report Ex. P 1 was given by him to the Police. He has further stated that the report was given orally and after the oral report had been made, the Head Mohrrir along with three constables came to the place where the dead body was lying and the report Ex. P 1 was written there and his thumb impression was obtained From the aforesaid statement of Kaduwa (PW 1), it does appear that the first information report Ex. P 1 was perpared after the Police had arrived at the scene of the incident on the basis of the oral information given by Kaduwa (PW 1) at Police Station Kherwada and the thumb impression of Kaduwa (PW 1) was obtained on the said report at the scene of the incident. This would show that the report Ex. P 1 was prepared after the information about the crime has been received by the police and the investigation had commenced and the Police Officer had arrived at the scene of the incident. The report, Ex. P 1, is therefore, a post-investigation document and it is inadmissible in evidence.

10. We may now take up the evidence of the two eye-witnesses Kaduwa (PW 1) and Sharda (PW 9). Kaduwa (PW 1) has deposed that on the morning of the day of the incident, he had gone to the well for the purpose of fetching water when he found the deceased standing there. He has further stated that both the appellants were standing outside the field where as the deceased was standing inside the field near the 'Badh'. Hanja appellant was armed with a gun and appellant Kura had a stick in his hand. Kaduwa asked the appellants not to enter the Held and thereupon both they appellants went ahead. Kala came out of the 'Badh' and met the appellants. Hanja wanted to kill Kala whereupon Kaduwa (PW 1) told him not to kill him. When Kala had reached near the Mahuwa tree outside the 'Badh' appellant Hanja fired the gun and the gun shot hit the palm of the left hand as well as the left side of the chest of Kala. Appellant Kura gave a blow with a lathi on the neck of Kala, as a result of which, he fell down and, thereafter, the appellants ran away along with the gun and the lathi. Kaduwa (PW 1) has also stated that prior to the incident of firing, Kala had told him the appellants Hanja and Kura were claiming money from him and that he had not paid the money. Kaduwa has also stated that prior to the incident, Sharda the daughter of the deceased had also arrived at the scene. During the course of cross-examination, Kaduwa has stated that no talk had taken place between the appellants and the deceased and that he also did not have any talk with the deceased except that the deceased had told him that the appellants Hanja and Kura were demanding money from him and that was the reason why they had killed him. He has also stated that when he saw the appellants for the first time, they were at a distance of about 100 paces from the 'Badh'. He has also stated that he was behind the deceased at the time the gun was fired and Sharda was behind him and that at that time, Hanja was at a distance of 7 to 8 steps from the deceased Kaduwa has also stated that the field in which the deceased was standing belonged to Homa and the 'Badh' near which the appellants were standing was also of the field of Homa and that his own field was towards the east of the field of Homa. He has also stated that the well where the deceased was standing was in the land of Homa and that the said well is the common well belonging to him as well as Homa, Kana, Sawa, Virji and Manji. He also stated that the lathi was struck by appellant Kura immediately after the firing of the gun while standing He also stated that at the time when the gun was fired at the deceased he was at a distance of 5 to 7 feet from the deceased and Sharda was at a distance of 3 to 4 feet from him. Kaduwa has also stated that it takes about ten minutes for a person to come from the house of Kala to come to his field and that Sharda had arrived ten minutes after Kala had raised the cry. According to Kaduwa, the deceased had raised the cry when Kaduwa had asked the appellants not to enter the field.

11. Sharda (PW 9) has also given the same version as that given by Kaduwa (PW 1). She has stated that in the morning, her father had gone towards the river and she was at her house. She heard the cry of her father and thereupon, she went towards the field of Kaduwa and she heard her father telling appellant Hanja to accompany him and that he would pay the money and that after saying so, Kala left the field of Kaduwa and when he reached the Mahuwa tree, appellants Hanja and Kura, who were standing near the 'Badh' came near the Mahuwa tree and appellant Hanja fired his gun at the deceased and appellant Kura gave a blow with a stick on his neck The gun shot hit the palm. of the left hand and left side of the chest of her father and, thereupon, he fell down. During the course of cross-examination, Sharda stated that her house is at a distance of about 200 paces from the well and that if any body shouts from the well, it may be heard from the house. She further stated that when she reacted, she found that appellants Hanja and Kura were asking her father to pay the money and her father was coming out of the field and was telling them to come with him and that he would pay the money. Sharda has stated that the time taken for reaching the field of Homa from her house is equivalent to the time taken in cooking 5-6 rotees'.

12. Although Sharda has stated that her house is at a distance of about 200 steps from the well but the evidence of the investigating office Abdulla Khan (PW 10) is to the effect that the house of the deceased was at a distance about 2 to 3 furlongs from the place where the dead body of the deceased was found. Kaduwa (PW 1) has also staled that it takes about ten minutes for a person to reach his field from she house of the deceased. In view of the aforesaid evidence of Abdul Khan (PW 10) ana Kaduwa (PW 1) about the distance of the house of the deceased from the placc where the dead body was found, it is not possible to reject the contention of Shri Mathur that Sharda could not have heard the cry of the deceased and that even if she could have heard his cry she could not have arrived at the scene of accurrence in time to hear the talk that took place between the appellants and the deceased and to see the firing of the gun by the appellant Hanja at the decased ceased as well as the giving of the blow with lathi by appelant Kura becaus Kaduwa (PW 1) has stated that when he asked the appellants not to enter his field, the deceased had gone towards the place where the appellants were standing and was saying that he is going to pay the money and by the time Kala reached the 'Mahuwa' tree, the gun was fired. Kaduwa (PW 1) has also stated that the deceased had raised the cry when he had prevented the appellants from entering his field. This would show that the talk between the deceased and the appellant about the payment of money had taken place soon after the deceased had raised the cry and soon thereafter the gun was fired by appellant Hanja. In view of the aforesaid evidence, it would not be safe to place reliance on the testimony of Sharda (PW 9).

13. But even if the evidence of Sharda (PW 9) is excluded from consideration, there is the evidence of Kaduwa (PW 1). In our opinion, there is no infirmity in the testimony of Kaduwa (PW 1) and reliance can be placed on his testimony that on the morning of June 18, 1975 when he went to his well, he found the deceased and the appllants there and that appellant Hanja was armed with sun arid appellant Kura was armed with a lathi and that the decea sed was inside the field whereas the appellants were outside the field and that while the deceased was going near the 'Mahuwa' tree outside the field appellant Hanja fired a gun and the gunshot hit the dsceased on the palm of the left hand and left side of the chest and that appellant Kura gave a blow with a lathi which hit on the back of the neck Nothing has been brought out during cross-examination of the said witness to shake the testimony of Kaduwa (PW 1) and, in our view, the reliance can be placed on the aforesaid testimony of Kaduwa. Moreover, the testimony of Kaduwa (PW. 1) finds corroboration from the medical evidence of Dr. Surendra Kumar (PW 2) who has proved the post-mortem report (Ex. P 8) which shows that gun shot injuries were found on the person of the deceased on the c est wall, left lateral side of abdominal wall, left forearm and the left hand. Apart from medical evidence aforesaid, there is the evidence of Roopa (PW 12) and Abdulla Khan (PW 10) with regard to the recovery of the gun from the possession of appellant Hanja and the evidence of Roopsi (PW 6) Gautam (PW 8) and Chauthmal (PW 10) with regard to the recovery of lathi at the instance, of appellant Kura and also the expert evidence, as contained in the report (Ex. P 1) received from the Central Forensic Science Laborafory, New Delhi which shows that the gun that was recovered from the possession of the appellant was in working order and it was fired through and that the pellets which were recovered from the body of the deceased could have been fired from the said gun. On the basis of the evidence of Kaduwa (PW 1), which is corroborated by the other evidence referred to above it can safely be con cluded that the prosecution has succeeded in establishing beyond reasonable doubt, that appellant Hanja had fired the gun at the decea sed and as a result of the aforesaid gun the, the deceased sustained gun shot injuries on various parts of his body and the said injuries resulted in his death and that appellant Kura gave a blow with a lathi on the back of the neck of the deceased Appellant Hanja has, therefore, been rightly convicted of the offence of murder punishable Under Section 302, IPC.

14. In so far as appellant Kura is concerned, Shri Mathur has submitted that it cannot be said that the said appellant shared the commonintention with appellant Hanja to commit the murder of Kala and, therefore, the conviction of appellant Kura, for the offence Under Section 302/34 IPC can not be sustained, in this regard, the submission of Shri Mathur was that as against appellant Kura, the only evidence, that has been adduced by the prosecution is that he has accompanied appellant Hanja and handd given a blow with a stick on the back of the neck of the deceased after Hanja had fired the gun at the deceased and the deceased had been injured by the said gunfire, and that be left the scene along with appellant Hanja. The submission of Shri Mathur was that the act of Kura in gving a blow on the neck of deceased with a lathi was his individual act since Kura did not inflict an injury with a lathi on any vital part of the body of the deceased, it cannot be said that appellant Kura had the intention of causing the death of deceased Kala or he had intention to inflict an injury on the person of the deceased which was sufficient in the ordinary course of nature to cause death. Shri Mathur has submitted that in the facts and circumstances of the case, appellant Kura can only be held guilty of the offence for causing hurt punishable Under Section 323 IPC we find considerable force in the aforesaid submission of Shri Mathur. From the evidence of Kaduwa (PW 1) it appears that both Hanja and Kura were present at the time when reached the well and that when the deceased left the field and had reached near the Mahuwa tree, the appellant Hanja bad fired the gun, and that as soon as Hanja had fired the gun appellant Kura gave a blow with a lathi on the back of the neck of the deceased. Kaduw (PW 1) has also stated that no talk had taken place between the appellants and the deceased in his presence. This would show that in so far as the assault on the deceased is concerned, there was no exhortation on instigation for the assault on the deceased by appellant Kura and that the firing of the gun at the deceased by appellant Hanja was his independent act. From the evidence of Kaduwa PW 1 it also appears that as soon as the gun was fired, appellant Kura gave the blow with the lathi on the person of the deceased. This would show that appellant Kura gave the blow with a lathi on his own and it cannot be said that there was preconcert between appellant Hanja and appllant Kura, when they assaulted the deceased and they were sharing a common intention to commit the murder of the deceased and that firing of the gun by appellant Hanja and the inflicting of the blow with a lathi by appellant Kura were in pursuance of such a common intention In this context, it may be mentioned that appeliant Kura inflicted only one blow with a lathi and that too was not on a vital part of the body of the deceased. This indicates that appellant Kura did not have an intention to cause the death of the deceased. In these circumstances, it is not possible to hold that appellants Hanja and Kura shared a common intention to commit the murder of deceased Kala and the gun that was fired by appellant Hanja at the deceased which resulted in the death of the deceased was in pursuance of the aforesaid common intention. In our opinion the firing of the gun by appellant Hanja was his individual act and appellant Kura cannot be held vicariously liable for the said act of appellant Hanja. The conviction of appellant Kura for the offence Under Section 302 with the aid of Section 34 of the Indian Penal Code, therefore, cannot be sustained. Appellant Kura can only be held liable for his own act viz., for giving a blow on the neck of the deceased with a stick. Since the blow that was inflicted by appellant Kura on the neck of the deceased caused only a simple injury on the person of the deceased, Kura can only be held guilty of the offence punishable Under Section 213 IPC. Appellant Kura was arrested on 18.6.75 and he remained in custody during the course of investigation, enquiry and trial and also after his conviction till his sentence was suspended and he was ordered to be released on bail by the order of this court dated 16.9.78. The said appellant has, thus, remained in prison for more than three years.

15. In the result, the appeal is partly allowed. The conviction of appellant Hanja for the offence Under Section 302 IPC and the sentence imposed on him for the said offence are maintained. The conviction and sentence imposed on the appellant Kura for the offence Under Section 302/34 IPC set aside and he is acquitted of the said offence. Appellant Kura is convicted of the offence Under Section 323 IPC and is sentenced to rigorous imprisonment for a period of one year. Appellant Kura has however, undergone imprisonment for a period in excess of the sentence that has been imposed upon him for the offence Under Section 323 IPC. Appellant Kura is on bail. He need not surrender and his bail bonds shall stand discharged.


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