Pooran v. State of Rajasthan — 1993 DIGILAW 385 (RAJ)

Honble M.B. SHARMA, J.—The learned Additional Sessions Judge, Neem-Ka-Thana has convicted the accused - appellant Pooran son of Ram Karan, by caste Meena, resident of Naya Bas, Neem-Ka-Thana, District Sikar under its judgment dated 28th August 1990 under Section 302 I.P.C. and for the said offence sentenced the accused-appellant to imprisonment for life. Being aggrieved against the aforesaid judgement, accused has preferred this appeal. 2. The case relates to the alleged murder of one Ram Swaroop. The house of the accused-appellant is adjacent to the house of the deceased, rather the Gwadi is common. The case of the prosecution is that on 16th September 1987, deceased Ram Swaroop was sleeping in the Guwadi all alone and other members of the house had gone to the nearby school to see some play which was being played there. It was at about 12.00 or 1.00 a.m. in the night intervening 15-16th September 1987 when Smt. Surji PW-1 and others are said to have returned after seeing the play, the accused is said to have been seen giving blows with an axe to the deceased Ram Swaroop who was then sleeping on his cot. Suresh, Ratiram and others reached there and they along with Baluram went to the police station and informed about the incident. When Baluram arrived at the spot, the said incident was narrated by Smt. Surji and others to him. Baluram lodged the FIR as aforesaid. It will be seen that the distance of the police station from the place of occurrence is about 5 kms. The report was lodged at about 6-7 a.m. 3. The post-mortem of the dead-body of deceased Ram Swaroop was conducted by Dr. Prabhu Dayal, Medical Officer vide post-mortem report Ex. P-7. He found that there were as many as injuries on the body of the deceased and out of those eight injuries seven were incised wounds and one was abrasion. According to the doctor the deceased died due to shock due to Haemorrhage following the injuries and coma due to injury to brain and its compression and all injuries are described as anti-mortem in nature and deceased had died within 24 hours of the post-mortem examination. 4. The accused was arrested and on his information u/s. 27 of the Evidence Act, an axe was recovered. 4. The accused was arrested and on his information u/s. 27 of the Evidence Act, an axe was recovered. The axe and other articles which were recovered were blood-stained, they were seized and were sent to the Forensic Science Laboratory vide Ex. P.16 and so far as axe (Kulhada) is concerned, it was found that it was stained with human blood and the Group of blood was found O. The same blood-group was found on blood smeared soil, Gudara, Baniyan, Chaddar which were recovered from the cot of the deceased. 5. After investigation, a charge sheet was filed against the accused appellant and a charge was framed and the accused was pleaded not guilty to the charge claimed to be tried. The prosecution examined number of witnesses in all 19. Thereafter, the accused was examined u/s 313 Cr.P.C. to explain the circumstances appearing in the evidence of the prosecution witnesses. The accused stood on a bare plea of denial. In his statement u/s 313 Cr.P.C. the accused came out with a ease that he has been falsely implicated in the case and on the day of occurrence fee had gone to village Bodki to bring his sister and when he came back he was told that a report has been lodged in which the accused has not been named but lateron in collusion with police he was falsely implicated. The accused examined a few witnesses in defence. 6. The learned Additional Sessions Judge placing reliance on the prosecution witnesses convicted and sentenced the accused as aforesaid. 7. The case of the prosecution tests on the testimony of the witnesses who have professed to be eye witnesses as well as on the recovery of the blood stained axe. Learned counsel for the appellant contended that the story which has been stated by the witnesses in their statement in the court is different from one with which they came out of the FIR. Learned counsel for the accused-appellant further contended that none of the witness was or could be the eye witness of the occurrence. In the FIR the prosecution had come out with a case that the accused was simply seen running away with an axe from the guwadi. But in the statement in the court each of them said that they had seen the accused causing injuries with an axe to the deceased Ram Swaroop. In the FIR the prosecution had come out with a case that the accused was simply seen running away with an axe from the guwadi. But in the statement in the court each of them said that they had seen the accused causing injuries with an axe to the deceased Ram Swaroop. Learned counsel further contended that the reliance can be placed on their statements so far as each of them has stated that they had witnessed the accused inflicting injuries on the deceased with anex. 8. So far as recovery of the alleged weapon is concerned, learned counsel contends that firstly it is not proved as to before whom the axe is said to have been recovered and secondly no evidence has been led by the prosecution that after the weapon of offence was seized from the possession of the accused, it was sealed and seals remained intact till the packet reached the office of the Director, Forensic Science Laboratory. He, therefore, contends that the accused cannot be connected with the weapon said to be found smeared with blood. Learned P.P. supported the judgment of the trial court. 9. The first question is as to what was the time of occurrence. The question is what was the time of death of deceased. As per the case of the prosecution, as made out in the report Ex. P. 2 lodged by Baluram on 16th September 1987, it was about 12.00 and 1.00 a.m. in the night intervening 15-16th September 1987 that Smt. Surji PW 1 and others returned from the school after seeing the play which was being performed there. PW 1 Surji who is elder brothers wife of Ram Swaroop and was residing with him in the said house states that except the deceased all had gone to the school to see the play and she came back at about 12.00 in the night and then she saw that the accused Pooran was giving blows with an axe to Ram Swaroop. She raised an alarm hearing which Baluram came there and then the accused appellant ran away by jumping over the boundary wall. It will be seen from the site inspection report that the boundary wall is of hardly two ft. and is Kachha. She raised an alarm hearing which Baluram came there and then the accused appellant ran away by jumping over the boundary wall. It will be seen from the site inspection report that the boundary wall is of hardly two ft. and is Kachha. PW 2 Suresh states that he too had returned from the school after seeing the play which was being played there and had slept and it was about 3.00 a.m. in the morning that he heard an alarm coming from the house of Ram Swaroop. He went there and saw that Ram Swaroop was lying on the cot with injuries on his person. He states that it was Surji who told him that it was Pooran who had caused the death of Ram Swaroop He then went to call Balu Ram. PW 5 is Prabhati and she is aunt (Mausi) of deceased Ram Swaroop and she states that she too had returned about 12.00 1.00 in the night and then she saw that the accused was standing near the cot of Ram Swaroop and was giving blows with an axe to the deceased. On hearing alarm Banwari had also arrived at there. In her cross-examination Prabhati stated that she returned from the school after seeing the play at about 12.00 in the night and immediately she started raising the alarm. Banwari PW 6 who too had arrived at the spot as per evidence of the witnesses, does not give any time as to at what time he returned from the school. Mst. Meera PW 9 is mother of Ram Swaroop and according to her statement, she too had returned at about 12.00 in the night and Surji and others were ahead of her. Surji was saying that it was Pooran who had caused the death of Ram Swaroop with an axe. From the statements of witnesses it can be said that at about 12.00-1.00 in the night that occurrence is said to have taken place. Doctor in his post-mortem report has not given any definite time of death of the deceased since the time of post-mortem and he had only said that the deceased had died within 24 hours of the post-mortem. Doctor in his post-mortem report has not given any definite time of death of the deceased since the time of post-mortem and he had only said that the deceased had died within 24 hours of the post-mortem. No attempt was made even by the Public Prosecutor or the learned counsel for the appellant to pin-point the time as to when the deceased died or atleast within how many hours of the post-mortem the deceased had died. Anyhow, it can be said from the evidence on record that the death of deceased might have taken place in between 12.00 and 2.00 a.m. in the night intervening 15-16th September 1987. 10. The question is as to whether or not the evidence of prosecution can be said to be reliable ? Learned counsel has challenged the statement of witnesses on the ground that they have improved their statements and they are different from the FIR. Not only in the FIR which has been lodged by Baluram, he had said that what has been written by him in the FIR was written at the instance of Smt. Surji and others and what all of them had narrated to him when he reached on the spot. All that has been stated in the statements of Surji or any other witness is that they had seen the accused-appellant giving blows to the deceased by an axe and all that has been stated in the FIR is that Smt. Surji told him that Pooran was seen running away with an axe by jumping over the boundary wall. It is not stated therein that Surji and others had actually seen the accused-appellant giving blows to deceased Ram Swaroop. Surji PW 1 was cross-examined with her statement Ex. D-l and more so its portions from A to B and C to D wherein she had stated that when she came to the house from the school, she saw the accused standing near the cot of the deceased with an axe and seeing her the accused ran away towards the south with an axe in his hand. She could not explain the conflict in her statement in the police as well as in the court. The same state of affair is with other witnesses namely Prabhati PW 5, Banwari 6 and Meera PW 9. She could not explain the conflict in her statement in the police as well as in the court. The same state of affair is with other witnesses namely Prabhati PW 5, Banwari 6 and Meera PW 9. Therefore,all evidence could be said to be on record is that there was no direct evidence that any of the witness saw the accused giving blows by an axe to the deceased Ram Swaroop. 11. There can be no dispute that Ram Swaroop died as a result of various injuries and it will be seen from the perusal of the injury report to which a reference has been made in the earlier part of this judgment that there were injuries by sharp edged weapon and there was also an injury by blunt weapon. There was one abrasion 2x1.5 cm. back of the lower 1/3 of the right arm. The Doctor said that the injury was ante-mortem in nature. When the accused is said to be armed with a sharp edged weapon, an axe, and as said accused caused injuries by it, there was no possibility of an injury, abrasion, having been caused at the hands of the accused. Therefore, the possibility that the occurrence might have taken place in some other manner, the enclosure being open from all sides and the accused suspected that deceased talks to his brothers wife the family members might have included cannot be excluded. Thus, in view of the fact that as said earlier, there was also an injury by blunt weapon and prosecution witnesses have made improvement from their statements u/s 161 Cr.P.C. and the FIR it becomes doubtful that these witnesses had actually witnessed the incident and had seen the accused giving blows with an axe to the deceased. 12. The question is as to whether this circumstance that the accused was seen running with an axe alone is sufficient to connect the accused with the crime. As said earlier, the axe is said to have been recovered at the instance of the accused, was sent to Director, Forensic Science Laboratory was found to be smeared with human blood and the blood group was also O which was found on the cloths of the deceased connects the accused. As said earlier, the axe is said to have been recovered at the instance of the accused, was sent to Director, Forensic Science Laboratory was found to be smeared with human blood and the blood group was also O which was found on the cloths of the deceased connects the accused. No evidence was led by the prosecution that after the, weapon is said to be recovered from the possession of the accused on his information, it was kept in sealed condition till it reached the office of the Director, Forensic Science Laboratory. Witness who might have carried the sample to the Forensic Science Laboratory was not examined. Two witnesses of recovery Mali Ram PW 13 and Ram Singh PW 14 have not supported the case of the prosecution and in this connection reference may be made to their statements. They have said that no axe was recovered from the accused. Thus, the recovery of axe becomes doubtful and that apart as said above there was no evidence about the seals having remained intact till the sample reached to the office of the Director, Forensic Science Laboratory and it would not be possible to hold that the weapon was same which was recovered from the possession of accused on which human blood was found. The only evidence that the accused was found running away with an axe will not be sufficient to connect the accused with this crime. 13. Consequently, we hereby allow this appeal, set-aside the judgment of the learned Additional Sessions Judge, Neem-Ka-thana dated 28th August i990 and the accused is acquitted of the charge u/s 302 IPC. The accused is in custody. He shall be released forthwith if not wanted in any other case. The record may be sent back immediately to the court concerned.