Imrat Das v. State of Rajasthan — 1996 DIGILAW 324 (RAJ)

Honble GUPTA, J. – Imrat Das has challenged his conviction and sentence recorded by the learned Sessions Judge, Churu vide judgment dated 24.9.84. He was convicted under Sec. 302, I.P.C. and sentenced to undergo imprisonment for life and pay a fine of Rs. 50/-. (2). The case relates to an occurrence which took place on 17.8.83 at 8 p.m. in village Berasar in which Moola Ram (30 years) lost his life. The prosecution case, as set up in the FIR Ex.P.1 lodged on 18.8.83, at 7.15 a.m., by PW-2 Parta Ram, was that Moola Ram and Parta Ram were going to village Sandawa to view Ram-leela, and as they proceeded after the house of Uda Das, Imrat Das, Mangilal and Chuna Ram caught hold of Moola Ram and they dragged him in the house of Uda Das. When Parta Ram asked about the cause of dragging, he was told not to intervene and thereafter Mangilal and Chuna Ram kept Moola Ram holding and Imrat Das brought a Gandasi from his house and inflicted 3-4 blows on Moola Ram. Seeing this, Parta Ram went to his house making noise in the village and informed his bro- ther Gulab about the incident and thereafter both of them alongwith villagers went to the spot and they noticed that Moola Ram was lying dead near the gate of the house of Uda Das. Imrat Das told them that if they informed the police, they would also be killed. The police got the post mortem examination done of the body of Moola Ram and after usual investigation arrested the accused. A Gandasi and blood stained Dhoti were recovered at the instance of the accused Imrat Das. After the completion of the investigation, challan was filed. The learned Sessions Judge charged accused Imrat Das with offence under Sec. 302 IPC and Mangilal and Chuna Ram with offence under Sec. 302 read with 34 IPC. They pleaded not guilty. The prosecution examined PW-1 Gulab, PW-2 Parta Ram, PW-3 Phoosa, PW-4 Me- gha Ram, PW-5 Durja Ram, PW-6 Dr. Anand Chhabra, PW-7 Balu Khan, PW-8 Bhanwar Singh and PW-9 Anil Kumar, SHO. Accused in their statements under Sec. 313, Cr.P.C. denied having committed any offence and stated that the witnesses have given false statements. Imrat Das stated that he used to live in the Dhani and none lived in his house. They did not lead evidence in defence. Anand Chhabra, PW-7 Balu Khan, PW-8 Bhanwar Singh and PW-9 Anil Kumar, SHO. Accused in their statements under Sec. 313, Cr.P.C. denied having committed any offence and stated that the witnesses have given false statements. Imrat Das stated that he used to live in the Dhani and none lived in his house. They did not lead evidence in defence. The learned Sess- ions Judge after hearing the learned counsel for the parties held that the death of Moola Ram was homicidal and that it was Imrat Das who had caused the death of Moola Ram. It was further found that Chuna Ram and Mangilal were not involved in the murder. The Sessions Judge acquitted both of them but convicted Imrat Das and sentenced him as above. (3). We have heard the arguments of the learned counsel for the parties and perused the record of the case. (4). Learned counsel for the appellant has contended that the trial Court has erred in placing reliance on the testimony of Parta Ram. According to him this witness had not seen the occurrence. He has urged that the FIR is the post investi- gation document and it could not be relied on the strengthen the prosecution case. He also submitted that the recovery of Gandasi and Dhoti is not proved by independent evidence on record and that in any case there is no evidence that the blood found on these articles was the same which was that of the deceased. (5). Learned Public Prosecutor on the other hand tried to support the judgme- nt of the trial Court. He contended that the dead body was found in the house of the father of the accused and that is the strongest circumstance against the accused and even if the testimony of Parta Ram is not believed, the conviction should be upheld on this circumstance. (6). We have given the contentions our thoughtful consideration. PW-6 Dr. Anand Chhabra has deposed that he had performed autopsy on the body of Moola Ram on 18.8.93, and that he had found 4 incised wounds and one bruise on his person. He has deposed that membranes of the skull was torn at the side of injury No.1 and there were multiple fractures of the scalp bone. PW-6 Dr. Anand Chhabra has deposed that he had performed autopsy on the body of Moola Ram on 18.8.93, and that he had found 4 incised wounds and one bruise on his person. He has deposed that membranes of the skull was torn at the side of injury No.1 and there were multiple fractures of the scalp bone. He has opined that the cause of death of Moola Ram was injury No.1 which was sufficient in the ordinary course of nature to cause death. He has proved the post mortem report Ex. P. 14. Learned counsel for the appellant has not challenged this medical evidence. On the basis of this evidence, the learned Sessions Judge has rightly held that Moola Ram had met homicidal death. (7). Now the question that arises for determination is as to whether the appellant was the person who had caused injuries to Moola Ram. (8). The learned trial Court after considering the evidence produced in the case came to the conclusion that the prosecution could not establish the charge under Sec. 302/34 IPC against the accused Mangilal and Chuna Ram and that the F.I.R. Ex.P. 1 was post investigation document. However, placing reliance on the testimony of Parta Ram and the recovery evidence the trial Judge has convicted accused appellant Imrat Das as above. (9). According to Anil Kumar SHO (PW-9), Parta Ram had lodged the report Ex.P.1 in the police station. However, Parta Ram (PW-3) has categorically stated that he had not reached the police station and that when he was going towards the police station, the SHO had met him in the way and from there he proceeded to the place of occurrence and thereafter the SHO recorded his report in village Berasar. On this evidence, the trial Judge has rightly held that the FIR Ex.P.1 was not written at the time mentioned in the report and that this report was recorded after the investigation started. That being so, the Report Ex. P.1 falls in the category of statement under Sec. 161, Cr.P.C. and it cannot be used to corroborate the maker. (10). Apart from this, the delay in lodging the FIR, even as per the time recorded therein, is also fatal to the prosecution case. The place of occurrence was situate just within five kilometers from the police station. P.1 falls in the category of statement under Sec. 161, Cr.P.C. and it cannot be used to corroborate the maker. (10). Apart from this, the delay in lodging the FIR, even as per the time recorded therein, is also fatal to the prosecution case. The place of occurrence was situate just within five kilometers from the police station. It has come in the statement of Gulab (PW-1) that he had proceeded to Police Station in the night itself. On the other hand, according to Parta Ram they had proceeded in the morning. Be that as it may, no satisfactory explanation is coming forward in the statement of Parta Ram as to why the FIR was lodged with such an inordinate delay. Ofcourse, Parta Ram in his examination-in-chief has deposed that the accused had told him that if he went to the police station he would be beaten. However, this important fact that the accused had threatened him, does not find place in the FIR Ex.P.1. Besides that, Gulab who is the brother of Parta Ram has also not deposed that Parta Ram had told him that the accused had threatened him. It is, thus, clear that no satisfactory explanation of delay in lodging the FIR at the police station which was situate just within five kilometers from the place of occurrence is forthcoming. (11). It is now to be seen whether Parta Ram had seen the occurrence? In the FIR Ex.P.1 it was stated that when the accused dragged Moola Ram from the path- way and inflicted Gandasi blow, he ran away from the place of occurrence making noise that ``Moola has been killed, ``Moola has been killed. Parta Ram has specifically named one Bhanwar as the person who had reached there on hearing the noise. However, this important witness has not been produced by the prosecution. According to Parta Ram, Bhanwar had reached the time the accused had ta- ken Moola Ram dragging inside the house. This indicates that the injuries were caused to Moola Ram after Bhanwar had reached there. The non- examination of Bhanwar in these circumstances raises serious doubt in the truthfulness of the statement of Parta Ram. (12). According to Gulab when Parta Ram told him about the occurrence, then he informed Pema Ram and Asu Ram about the occurrence. However, both these witnesses have also not been examined by the prosecution. The non- examination of Bhanwar in these circumstances raises serious doubt in the truthfulness of the statement of Parta Ram. (12). According to Gulab when Parta Ram told him about the occurrence, then he informed Pema Ram and Asu Ram about the occurrence. However, both these witnesses have also not been examined by the prosecution. They could be the best witnesses to tell as to whether in the night itself Gulab and Parta Ram had told that Imrat Das had inflicted blows to Moola Ram. Their non- examination further shows that Parta Ram had not seen the occurrence and both Parta Ram and Gulab Ram have belied in this regard. (13). It has come in the statement of Parta Ram that when he and his brother Gulab were at their house, one Durja Ram had gone to them and told them that Moola Ram had been murdered. It has not been deposed by Parta Ram or Gulab that on hearing from Durja Ram, they had reacted that Parta Ram had seen the occurrence. The fact that Parta Ram did not react that he himself had seen the occurrence clearly indicates that he had known about the occurrence for the first time through Durja Ram and he had himself not seen the occurrence. (14). It may also be stated that Parta Ram has made changing statements about his seeing the actual infliction of the injuries. In the examination-in-chief he stated that the accused had caused Gandasi blow to Moola Ram in the ``Bakhal and seeing this he ran away to his house to tell Gulab. However, in his cross examination he admitted that after Moola Ram was taken inside, the gate of the house was closed and that the gate was of mans height. Again the witness changed the version and hold that first Gandasi blow was given to Moola Ram and thereafter the gate was closed. However, when Court questions were asked, the witness told that he could see the infliction of the blow from the place in between the gate and the fencing. This show that the witness though had not seen the occurrence but in order to become eye witness has sometimes deposed that the gate was open and at other that he could see through the space between the gate and the fencing. (15). This show that the witness though had not seen the occurrence but in order to become eye witness has sometimes deposed that the gate was open and at other that he could see through the space between the gate and the fencing. (15). As already stated, the FIR was recorded after the commencement of the investigation and that Durja Ram had informed Parta Ram and Gulab at their house that Moola Ram had been murdered. It appears that when Parta Ram and Gulab came to know that the dead body was lying in the house of the father of the accused, they presumed that it was the accused who had committed the murder. (16). Ofcourse, it could be the strongest circumstance against the accused if the dead body had been found in his house but the dead body as per the site inspection memo Ex.P. 4 and the statement of Anil Kumar, IO (PW-9) was found lying inside the house of Uda Das. Uda Das ofcourse is the father of the accused but the site inspection memo shows that the house of the accused is different and situate on the right side of the house of his father. When the dead body was found in the ``Bara of Uda Das, no inference can be drawn against the accused of causing murder of Moola Ram. (17). The motive for the crime is alleged to be that the deceased used to visit the house of Uda Das and he was attracted towards Chunki the daughter of Uda Das. There is no clear evidence on this point. Gulab has categorically denied about the knowledge of the relationship between Chunki and the deceased. Parta Ram has also emphatically denied to have any knowledge of their relations. However, even if it is presumed for arguments sake that the deceased used to visit the house of Uda Das having evil eye on Chunki, the possibility that the murder was committed by Uda Das himself who was father of Chunki or any one else in his house, cannot be ruled out. That being so, simply because the dead body was found in the ``Bara of the father of the accused, it cannot be inferred that the accused had committed murder. (18). That being so, simply because the dead body was found in the ``Bara of the father of the accused, it cannot be inferred that the accused had committed murder. (18). Coming to the recovery of blood stained Gandasi and the Dhoti at the instance of the accused it may be stated that the accused has denied the recovery. Names of Pema Ram and Asu Ram appear as Motbirs on the recovery memos Ex.P. 18 and P. 20. However, both these witnesses have not been examined by the prose- cution. These witnesses were present in Court on 27.2.84 but the P.P. gave them up. This circumstance goes to show that both these witnesses were not prepared to support the recovery. When it has been found that the SHO had ante timed the FIR, this argument cannot be lightly brushed aside that the investigation was not fair and the IO could go to the extent of creating false evidence of recovery at the instance of the accused. (19). Apart from this, the blood group on the Dhoti and the Gandasi could not be determined and as such it is difficult to connect the accused with the crime on the basis of this recovery alone. (20). As a result of the above discussion, we have no hesitation in holding that the trial Judge has committed error in convicting the accused on the basis of the evidence produced in the case. The accused is entitled to acquittal. Consequently, the appeal succeeds. The conviction and sentence are set aside and the accused appellant Imrat Das is acquitted of the offence under Sec. 302 IPC. He is in custody. He shall be released forthwith, if not required in any other case.