Partly allowed

Hargyan and Ors. v. State of Rajasthan through P P

Rajasthan HC20 Nov 2018CRLA/847/2014

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed the criminal appeal partly. It substituted the conviction of murder (Section 302 IPC) with culpable homicide amounting to murder (Section 304 Part-II IPC) and acquitted some appellants.

What did the court decide?

India. Substituted conviction of murder with Section 304 Part-II IPC. Acquitted other appellants. Remitted sentencing.

Hargyan and Ors. Vs State of Rajasthan… — Murder and Culpable Homicide | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. CRIMINAL APPEAL NO.847/2014

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Hargyan son of Mangal Singh

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Mahesh Kumar son of Mangal Singh

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Mangal Singh son of Bhupan Singh

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Smt. Leelee wife of Hargyan

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All by caste Gurjar resident of Alipur. Police Station Mundawar, Distt. Alwar.

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(At present in District Jail, Alwar)

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-----Accused-appellants

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Versus

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The State of Rajsthan

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-----Respondent

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For Appellant(s) : Mr. Arvind Kumar Gupta with Ms.Mudita Sharma For Respondent(s) : Mr. Pankaj Sisodiya - PP Mr. Noor Ahmed for Mr. Sandeep Pathak – for complainant

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HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA

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Judgment

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20/11/2018

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This appeal has been filed against the order dated 18^th July, 2014 passed by the Additional Sessions Judge No.1, Kishangarhbas, District Alwar in Session Case No.33/2011, thereby, acccused-appellants have been convicted for the offences under Sections 148 and 302/149 IPC. They have been sentenced to life imprisonment for offence under Section 302/149 IPC with fine of Rs.5,000/- each, in case of default to pay fine, to further undergo three months rigorous imprisonment. For the offence

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(2 of 16) [CRLA-847/2014]

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under Section 148 IPC, the accused-appellants have been

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sentenced to three years rigorous imprisonment with fine of Rs.1,000/- each, in case of default to pay fine, to further undergo one month rigorous imprisonment.

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BRIEF FACTS OF THE CASE :

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An FIR No.290/2010 was registered by the Police Station, Mundawar, District Alwar on a written report, Exhibit-P1, on 6^th August, 2010. In the written report, it was stated that at around 8.00-9.00 AM, complainant’s mother and wife saw accusedHargyan, Layakram, Mahesh, Mangal, Bhupan, Leelee and Bharpai digging foundation in the plot belonging to them. The complainant’s mother asked them to stop it. Hargyan, having “Pharsi”, Malayalam and Mahesh, having “Axe”, Mangal, having “Phawada” and other ladies, having “Phawada” and “Bankadi”, attacked on complainant’s mother Basanti. She died on the spot. The complainant’s wife Santosh raised a noise on seeing the occurrence. The complainant and his brother-Veer Singh immediately came on the spot. All the accused ran away immediately thereafter.

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After the aforesaid, the investigation was made though according to learned counsel for accused-appellants, the investigation was started even before registration of the FIR. The police filed a charge sheet against the accused-appellants for the offences under Sections 147, 148 and 302 IPC. The case was committed to the Court of Sessions where the charges were framed against the accused-appellants vide order dated 9^th March,

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2011 for offences under Sections 148 and 302 IPC, alternatively Section 302/149 IPC. The accused denied the charges thus trial commenced.

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The prosecution produced seventeen witnesses apart from forty four documents to support their case. The statements of the accused were recorded under Section 313 Cr.P.C. They produced three witnesses and twenty seven documents in defence. The trial court, after marshalling the evidence, convicted the accusedappellants for the offence under Sections 148 and 302/149 IPC and sentenced as above.

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ARGUMENTS OF THE ACCUSED-APPELLANTS :

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Learned counsel for accused-appellants submits that it is a case of tainted investigation. It is not only for the reason that investigation was started before registration of the FIR but recovery of weapons was also made on a date subsequent to the date entered in the “Malkhana Register” for their deposition. In view of the above, the trial court should not have relied on the prosecution case.

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It is also stated that the accused party was in possession of the land in dispute and if they were digging the earth to lay foundation, it was within their rights. The complainant party came and attacked on the accused party. From the accused side, two persons received injuries. The accused-appellant-Mahesh received four injuries, out of which, one was grievous in nature. The accused party acted in self-defence. Based on the aforesaid

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ground also, the trial court should have acquitted the accusedappellants.

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It is further stated that a case for conviction for offence u/s 302 IPC with the aid of Section 149 IPC is not made out. It is not a case where the accused-appellants came with common object to cause occurrence. If the incidence given in the FIR, coupled with the evidence is looked into, it would come out that the occurrence took place on the spur of the moment. The accused party was digging the earth to lay foundation and, at that time, complainant’s mother came and asked them to stop it. At that stage, incidence took place. The weapons used cannot show premeditation of the accused party as they generally remain available in the villages.

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It is also stated that the accused-appellants had no intention to cause death of deceased-Basanti. They have not given repeated blows to her even as per statements of the witnesses though there exists contradiction in the statements of the eye-witnesses PW1Nathiram, PW2-Veer Singh and PW3-Santosh. The case falls in the exception given under Section 300 IPC. In view of the above, the conviction of the accused-appellants for offence u/s 302 IPC with the aid of Section 149 IPC is not made out. The court may thus see individual act of the accused. The conviction and sentence may appropriately be interfered with the aforesaid. A prayer is, accordingly, made to acquit the accused-appellants of the offences under Sections 148 and 302/149 IPC, and, alternatively, to interfere in the conviction under Section 302 IPC with the aid of Section 149 IPC as the case of common object to cause incidence is not made out.

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ARGUMENTS OF THE SIDE OPPOSITE:

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Learned Public Prosecutor and the counsel for complainant have contested the arguments raised by learned counsel for accused-appellants. It is stated that the investigation was started after registration of the FIR. The occurrence took place in the morning at around 8.00-9.00 AM. Immediately, it was reported to the Police on telephone. The Station House Officer came at the place of occurrence and, before that, Mr. Babulal, Assistant SubInspector, reached at the place of occurence. The written report about the occurrence was given by the complainant PW1-Nathiram then and there. It was without delay. The FIR was registered at 12.30 PM on 6^th August, 2010 itself. The investigation was made subsequent to the aforesaid. The “Panchayatnama”, Exhibit-P3, “Inquest Report”, Exhibit-P5 and “Seizure Memo”, Exhibit-P6, were prepared immediately on registration of the FIR. In view of the above, it cannot be said that investigation was caused prior to registration of the FIR.

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It is further submitted that recovery of the weapons is on its disclosure by the accused-appellants under Section 27 of the Indian Evidence Act. The accused-appellant-Hargyan made a disclosure for recovery of weapon under Section 27 of the Indian Evidence Act vide Exhibit-P37. In the same manner, accusedappellant-Mangal Singh made a disclosure vide Exhibit-P38 and Mahesh Kumar vide Exhibit-P40. The recovery of weapons was made thereupon. In view of the above, recovery of weapons cannot be disbelieved only due to incorrect entry in the “Malkhana Register”. The recovery of the weapons was made in the presence of the accused-appellants. They signed the seizure memo.

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Accordingly, those documents cannot be disbelieved in reference to “Malkhana Register” Exhibit-P35A, produced by the prosecution.

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PW16-Roopnarayan has stated about entry of the weapons in the “Malkhana Register” on 6^th August, 2010 itself but disclosures for recovery of weapon Exhibit-P37, P38 and P40 made by the accused-appellants under Section 27 of the Indian Evidence Act cannot be disbelieved so as Exhibit-P8, P31 and 32, seizure memos of the weapons. In view of the above, the trial court has rightly relied on the recovery of the weapons at the instance of the accused-appellants.

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A “Pharsi” was recovered from accused-Hargyan. It was found bloodstained. It was sent to the Forensic Science Laboratory. The FSL report, Exhibit-P42, shows not only human blood on the “Pharsi” but blood group matching to the blood group of the deceased. In view of the above, the trial court has rightly relied on the recovery of the weapons to connect the accusedappellants with the crime.

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It is further submitted that a case of self-defence is not made out so as to seek acquittal of the accused on the aforesaid ground. The incidence was caused when deceased-Basanti asked the accused not to dig the foundation in the plot. On that, accused party caused injuries to deceased-Basanti. The site plan, ExhibitP9, shows place of occurrence. It is not in the house of accusedappellants but at the open place, accordingly, a case of selfdefence is not made out.

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The prosecution could otherwise prove the case beyond doubt. The eye-witnesses to the occurrence, PW1-Nathi Ram, PW2-Veer Singh and PW3-Santosh, have supported the prosecution case. They made specific allegations against each

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accused for causing offence. It was with pre-meditation thus not only offence under Section 302 IPC is made out but the case of common object to cause incidence is also established. Accordingly, the trial court has rightly convicted and sentenced the accusedappellants for offence under Section 302 IPC with the aid of Section 149 apart from Section 148 IPC. A prayer is, accordingly, made to dismiss the appeal.

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We have considered rival submissions of the parties and scanned the matter carefully.

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An FIR bearing No.290/2010, Exhibit-P36, was registered by the Police Station, Mundawar, Alwar on a written report given by complainant-Nathi Ram on the spot. It is when police came at the place of occurrence on telephonic information. The Assistant SubInspector visited the place of occurrence at the first instance followed by the Station House Officer. They had taken the written report from the complainant and, thereupon, registered the FIR at 12.30 PM on 6^th August, 2010 itself. Exhibit-P3, Panchayatnama, Exhibit-P5, Inquest Report of the deceased and Exhibit-P6, Seizure Memo of Smeared Soil, were then prepared. It is alleged to be before registration of the FIR.

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The perusal of Exhibit-P3, Exhibit-P5 and Exhibit-P6 shows that they were prepared at 12.30 PM or subsequent to it and not before the registration of the FIR. In view of the above, we are unable to accept the plea taken by learned counsel for appellants regarding investigation prior to registration of the FIR so as to acquit the accused-appellants.

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The other issue is regarding recovery of the weapons on the information given by the accused-appellants under Section 27 of the Indian Evidence Act. The disclosure for recovery of weapon

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was made by accused-Mahesh Kumar vide Exhibit-P40. The memo of recovery is Exhibit-P8 where an “Axe” was recovered from the house of accused-Mahesh Kumar.

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In the similar manner, accused-Hargyan made a disclosure for recovery of weapon used in the occurrence. It is by ExhibitP37. The recovery memo of bloodstained “Pharsi” is Exhibit-P31. It was on 10^th August, 2010. The bloodstained “Pharsi” recovered at the instance of accused-Hargyan was sent to the Forensic Science Laboratory. The FSL reports are Exhibit-P42 and 44. Exhibit-P42 shows human blood of group ‘A’ matching to the blood group of deceased-Basanti.

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The “Blood Smeared Soil, “Petticoat” of the deceased apart from “Loogri” and “Kamij” was also containing human blood of Group ‘A’. It is apart from “Chappal” recovered from the spot. Thus it is not only that recovery of “Pharsi” was made on the disclosure of Hargyan but the FSL report shows blood on it matching to the blood group of deceased. In the similar manner, other accusedMangal Singh made a disclosure for recovery of weapon vide Exhibit-P38. The recovery of “Phawada” was then made at his instance.

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The witnesses for recovery of the weapons have proved memo of recovery apart from disclosure made by the accused under Section 27 of the Indian Evidence Act. We do not find that recovery of weapons is doubtful. A reference of the statement of PW16-Roopnarayan is, however, relevant. It is to show that the weapons so recovered at the instance of accused on 10^th August, 2010 and recovery of “Axe” vide Exhibit-P8 on 19^th August, 2010 were shown to have been deposited in “Malkhana” on 6^th August, 2010. For the aforesaid, a reference of Exhibit-P35A has been

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given. It is true that PW16-Roopnarayan has shown deposition of weapons in “Malkhana” on 6^th August, 2010 but it is contrary to other documentary evidence produced by the prosecution. The recovery memos of weapons, Exhibit-P8, 31 and 32, contain signature of accused-Mahesh Kumar, Hargyan and Mangal Singh respectively. The recovery of weapons was made on their disclosure vide Exhibit-P37, 38 and 40. The date of deposition of weapons is shown in Exhibit-P35A at 3.30 PM on 6^th August, 2010. The entry in the “Malkhana Register” is not matching to the disclosure made by the accused for recovery of weapons as well as recovery memos. We find that the documents Exhibit-P8, 31, 32 apart from Exhibit-P37, 38 and 40 are under the signatures of the accused thus relied by the trial court. Those documents cannot be discarded in reference to Exhibit-P35A.

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We need to even consider as to whether a case of selfdefence is made out and the accused could have been convicted with the aid of Section 149 IPC.

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We would refer the documents produced by the prosecution and the accused in defence. It is for the reason that a cross case was registered at the instance of accused party though with delay. It is in regard to the same occurrence. They have shown occurrence in the house of the accused party so as to take plea of self-defence. As per site plan prepared in this case as well as in the cross case, the place of occurrence is not the house but an open place. The perusal of written report, Exhibit-P1, shows that accused were digging the foundation in the plot and at that stage, Basanti came and asked the accused not to do it. At that stage, the accused caused occurrence and as per statement of PW1Nathi Ram, accused-Hargyan caused a blow to deceased on her

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neck by a “Pharsi”, whereas, Mahesh Kumar, having an “Axe”, caused injury on her head.

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The other accused- Layakram was tried separately. He caused injury on the face of deceased-Basanti.

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PW2-Veer Singh has also made allegations against all the accused but there is contradiction in his statement. According to him, accused-Hargyan caused injury on the face of deceasedBasanti, whereas, accused-Layakram caused a blow on her neck. He has, however, corroborated the statement of PW1 for causing head injury to the deceased by Mahesh Kumar.

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PW3-Santosh is again an eye-witness. She has corroborated the statement of PW1-Nathi Ram. It is stated that Hargyan was having “Pharsi”, whereas, Mahesh Kumar and Layak Ram were having “Axe”. The accused-Mangal Singh was having a “Phawada” and accused-Leelee was having a “Bankadi”. Mangal Singh caused injury to the deceased by an axe while Hargyan caused injury with a pharsi. Layakram and Mahesh Kumar caused injuries by an axe. The deceased-Basanti died on the spot. The eye-witnesses, PW1 to PW3, were duly cross-examined by the accused-appellants.

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The perusal of cross-examination does not show that it could be demolished so as to disbelieve their testimony. The eyewitnesses have made specific allegations against each accused for their participation in the occurrence and causing injuries to deceased-Basanti.

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The statements of PW1 to PW3 are corroborated by the postmortem report. The post mortem report shows that deceased had received three injuries, out of which, first was incised wound over the face starting from right side of chin going below the right ear with size of 14x3 cm. and is bony deep. The fracture of underlying

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right mandible bone has also been given. The second injury described is again an incised wound over right occipital region. It is again bony deep and fracture underlying right occipital bone of skull. The third injury is incised wound over right supra clovicular region with size of 4x2x1 cm. The injuries in the post-mortem report support statements of PW1 to PW3, who have attributed those injuries to the accused-appellants.

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The case of the prosecution is further supported by disclosures of accused for recovery of the weapons. The disclosure for recovery of weapon, Exhibit P-40 was made by accusedMahesh Kumar. The recovery of weapon at his instance is ExhibitP8. An axe was recovered from his house. In the same manner, disclosure of recovery of weapon, Exhibit P-37 was made by accused-Hargyan. The recovery memo of “Pharsi” is Exhibit-P31. It was bloodstained, thus was sent to the Forensic Science Laboratory. The recovery was in the presence of PW12-Godaram and PW15-Jainarayan. The weapon was recovered from the house of Hargyan. In the similar manner, recovery of “Phawada” was made on the disclosure of accused-Mangal Singh vide Exhibit-P38. The recovery memo, Exhibit-P32, was prepared in the presence of PW12-Godaram and PW15-Jainarayan.

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In view of the above, the prosecution has corroborated their evidence with recovery of weapons though it has been shown to be doubtful in reference to statement of PW16-Roopnarayan. He has stated about deposition of weapons on 6^th August, 2010 itself. The issue aforesaid has already been dealt with by this court thus need not to be reiterated.

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A reference of FSL reports, Exhibit-42 and 44, would be relevant to show as to whether the prosecution could bring

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corroborative evidence to prove their case. The FSL report, Exhibit-P42, shows human blood on “Pharsi” and even describes blood group ‘A’ on it. It is matching to the blood group of the deceased. The blood group ‘A’ was found on the clothes of the deceased apart from smeared soil recovered from the spot. The aforesaid is again corroborative evidence to prove their case beyond doubt. The statements of PW12-Godaram and PW15Jainarayan proved recovery of the weapons, so produced by the prosecution.

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The statement of PW9-Dr. Jitendra Choudhary again proves the prosecution case. He prepared the post-mortem report, Exhibit-P12. It describes the injuries sustained by the deceased. The deceased received three injuries as described by PW1 and corroborated by PW3 while giving description of the incidence. In view of the above, we find that prosecution could prove their case beyond doubt.

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Learned counsel for appellants, however, came with the case of self-defence. The perusal of statements of the witnesses and the documents produced by the prosecution do not show that a case of self-defence is made out. The place of occurrence is not the house of accused-appellants, but an open place, as is coming out from Exhibit-P2. It is even corroborated by the documents produced by the accused-appellants. Exhibit-D1 shows place of occurrence. It is even in Exhibit-D10. It is open place and not the house of the accused. It is not that complainant party first attacked on the accused so as to seek self-defence. Accordingly, we do not find it to be a case of self-defence so as to acquit the accused-appellants.

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The question now comes as to whether conviction of the accused-appellants for offence under Section 302 IPC with the aid of Section 149 IPC is proper. The perusal of written report, Exhibit-P1, and the FIR, Exhibit-P36, shows that accused were digging foundation in the plot in dispute. It is shown to be in possession of the accused party, whereas, complainant party has shown it to be in their possession. The litigation in regard to land in dispute is proved in the evidence led by both the parties. The deceased-Basanti asked the accused not to undertake digging work of foundation and at that stage, three accused namely, Mahesh Kumar, Hargyan and Layakram caused injuries to the deceased. The weapons used therein are “Axe, “Pharsi” and “Phawada”. These equipment generally remain available in the villages. The incidence, as described in the written report, took place when deceased-Basanti asked the accused-appellants not to dig foundation in the plot.

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Taking into consideration the aforesaid, it cannot be said that accused-appellants came with pre-meditation to cause incidence. It cannot be presumed that deceased-Basanti would come to stop the accused from digging the foundation and, on that, accused will kill her. The occurrence has not taken place with pre-meditation to prove common object of the accused.

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The aforesaid is relevant to analyse the case as to whether Section 149 IPC would be attracted in this case and as to whether conviction for offence under Section 302 IPC is made out. We find that Section 149 IPC would not be attracted in this case. The prosecution could not bring evidence to show common object of the accused to cause incidence, rather, it took place on the spur of the moment when the deceased-Basanti asked the accused not to

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dig the foundation in the plot. In view of the above, conviction of the accused with the aid of Section 149 IPC cannot be sustained.

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We are thus required to see allegations against each accused as we find that specific allegations have been made against Mangal Singh, Hargyan, Mahesh Kumar and Layakram for causing injuries to the deceased. We have already recorded our finding about corroboration of the statements of eye-witnesses by postmortem report and statement of PW9-Dr. Jitendra Choudhary. Each accused has caused one blow to the deceased thus it is not that repeated blows have been given to infer knowledge or intention to cause death of the deceased so as to make a case of culpable homicide amounting to murder to convict accused for offence under Section 302 IPC.

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In view of the facts given above, we find that a case for offence under Section 302 IPC is not made out, rather, it falls under Section 304 Part-II IPC. Accordingly, we cause interference in the conviction of accused-Mahesh Kumar and Hargyan for offence under Section 302 IPC and substitute it with the offence under Section 304 Part-II IPC.

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So far as other two accused-appellants namely, Mangal Singh and Leelee are concerned, no allegations exist against them for causing injuries to deceased-Basanti. In fact, three injuries were caused to the deceased and they are attributed to accusedMahesh Kumar, Hargyan and Layakram. Since we do not find that a case falls under Section 149 IPC, individual act of each accused has been seen. We do not find that conviction of accused-Leelee and Mangal Singh is sustainable for offence under Section 302/149 IPC. Their presence alone has been shown but there is no attribution for causing injuries to the deceased. PW2-Veer Singh

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has made allegation against accused-Mangal Singh, but it is not corroborated by the post-mortem report.

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Accordingly, we find reasons to interfere in the order of the trial court for conviction of accused-appellants-Leelee and Mangal Singh. According to us, the prosecution could not prove the case against those accused. Accordingly, while setting aside the conviction of accused-appellants-Leelee and Mangal Singh for offences under Section 148 and 302 IPC, they are acquitted of the offences.

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The issue now remains about sentence of accusedappellants-Hargyan and Mahesh Kumar. They have been convicted for offence under Section 302 IPC by the trial court. We find that Hargyan has used “Pharsi”, whereas, Mahesh Kumar used an “Axe” to cause incidence. The use of arms was on the spur of the moment.

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Taking into consideration overall circumstances of the case, we convict accused-appellants-Hargyan and Mahesh Kumar for offence under Section 304 Part-II IPC and sentence each of them to eight years rigorous imprisonment with fine of Rs.5,000/-, in case of default to pay fine, to further undergo three months simple imprisonment. The accused-appellants-Mahesh Kumar and Hargyan are acquitted of the offence under Section 148 IPC.

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The appeal is partly allowed with the aforesaid.

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As per Section 437-A of the Code of Criminal Procedure, accused-appellants-Mangal Singh and Leelee are directed to furnish a personal bond in the sum of Rs.25,000/- each with one surety in the like amount before the Registrar (Judicial) of this Court, which will be effective for a period of six months with stipulation that in the event of Special Leave Petition being filed

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against this judgment or on grant of leave, the appellants will appear before the Supreme Court on receipt of notice thereof.

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Since sentence of the accused-appellants-Mangal Singh and Leelee has already been suspended by this court, their bail bonds are discharged.

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(BANWARI LAL SHARMA),J

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(M.N. BHANDARI),J

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FRBOHRA

Hargyan and Ors. v. State of Rajasthan through P P

Case brief

What is this about?

What did the court decide?

Hargyan and Ors. v. State of Rajasthan through P P

Case brief

What is this about?

What did the court decide?

What the court decided

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