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Rajasthan High Court · body

1998 DIGILAW 1062 (RAJ)

Asha Ram v. State of Rajasthan

1998-10-09

A.S.GODARA, R.R.YADAV

body1998
Honble YADAV, J–Accused-appellant Asha Ram and his father Dhodu Ram have filed this Jail Appeal against the judgment dated 21.3.1996 passed by the learned Additional Sessions Judge, Bhilwara whereby both of them have been sentenced to suffer imprisonment for life and a fine of Rs,100/- each, in default of payment of fine, both of them ordered to suffer further rigorous imprisonment for three months. (2). The genesis of events which led to the occurrence in this case was that an altercation took place between accused Asha Ram and deceased Raju Singh on Railway track. One of the accused Kaliya alias Shanti Lal in this case is to be tried by Juvenile Court, therefore, it would be expedient to avoid discussion relating to his participation in the occurrence. (3). The incident in this case happened on 6.11.1992 at 7.30 PM. The prosecution version in brief is as under :- (4). PW 4 Mangi Lal was posted as Assistant Sub-Inspector at Police Station Kotwali Bhilwara. He received a telephonic message from Dr. Naruka on duty on 6.11.1992 at 8.30 PM from Mahatama Gandhi Hospital, Bhilwara to the effect that one Raju Singh son of Jeet Singh Sardar aged about 30 years r/o Kashipuri infront of Pusa Niwas, Bhilwara was admitted in the Hospital for treatment of his injuries received in ``Maar Peet had expired. Dr. Naruka made a request to the police to do the needful in the matter. (5). On the aforesaid message, PW 4 Mangi Lal, A.S.I. went to Surgical Ward of Mahatma Gandhi Hospital, Bhilwara where he found Raju Singh deceased lying dead on hospital bed. It is alleged that PW 4 Mangi Lal made enquiries from the mother and father of the deceased namely; PW 3 Mst. Hari Bai and PW 5 Jeet Singh relating to genesis of Maar Peet leading to death of deceased Raju Singh. PW 4 Mangi Lal A.S.I. was informed by PW 5 Jeet Singh that at about 7.30 PM his wife PW 3 Mst. Hari Bai and his deceased son Raju Singh were going to the temple of Santoshimata. When both of them reached near Pusa Niwas, accused Dhodu Ram and his two sons namely; Asha Ram and Kaliya alias Shanti Lal came from their hut and surrounded Raju Singh. Accused Asha Ram gave 6-7 `gupti blows to the decea- sed in the region of chest and abdomen. When both of them reached near Pusa Niwas, accused Dhodu Ram and his two sons namely; Asha Ram and Kaliya alias Shanti Lal came from their hut and surrounded Raju Singh. Accused Asha Ram gave 6-7 `gupti blows to the decea- sed in the region of chest and abdomen. Accused Dhodu Ram caught hold of the deceased Raju Singh and Kaliya alias Shanti Lal assaulted him with lathi. Raju Singh was admitted in the hospital in critical condition where he expired. The dead-body of Raju Singh was placed in Mortuary and two Constables were posted there at the behest of PW 4 Mangi Lal A.S.I. (6). PW 4 Mangi Lal A.S.I., after collecting the aforesaid informations from PW 5 Jeet Singh in the Mahatma Gandhi Hospital, Bhilwara reduced in into writing and sent to Station House Officer, Police Station Kotwali, Bhilwara, which is exhibited as Ex. P/3 and on the basis of the aforesaid information furnished by PW 4 Mangi Lal, F.I.R. No. 804/92 Ex.P/4 was lodged at Police Station Kotwali, Bhilwara on the same day at 9.15 PM. After lodging of the F.I.R. at 9.15 PM on 6.11.92, the investigation commenced. (7). After investigation, the investigating agency filed challan against the accused-appellants and Smt. Vimla w/o Dhodu Ram under Sec. 302 read with Section 34, IPC before the learned Judicial Magistrate, First Class, No.2, Bhilwara from where the case was committed to the learned Sessions Judge,Bhilwara for trial. Learned Sessions Judge, Bhilwara transferred the case for trial to the court of learned Additional Sessions Judge, Bhilwara. (8). Learned Additional Sessions Judge, Bhilwara after hearing the learned counsel for the accused persons and learned Public Prosecutor, framed charges against them under Sec.302, IPC and alternatively under Sec. 302 read with 34, IPC. The accused- persons denied the charges and claimed trial. (9). The prosecution agency to substantiate the charges against the accused-persons examined as many as 14 witnesses (PW1 to PW14) and filed the documents Ex. P/1 to P/27. The accused- persons have not adduced any evidence in their defence except marking Ex. D/1 statement of Mst. Hari Bai recorded under Sec. 161 Cr.P.C. before the police and Ex.D/2 statement of Jeet Singh (father of the deceased) recorded under Sec. 161, Cr.P.C. before the police to use these statements in evidence within the meaning of Sec. 162, Cr.P.C. (10). The accused- persons have not adduced any evidence in their defence except marking Ex. D/1 statement of Mst. Hari Bai recorded under Sec. 161 Cr.P.C. before the police and Ex.D/2 statement of Jeet Singh (father of the deceased) recorded under Sec. 161, Cr.P.C. before the police to use these statements in evidence within the meaning of Sec. 162, Cr.P.C. (10). Accused Asha Ram pleaded in his statement under Sec. 313, Cr.P.C. that there was altercation between him and deceased Raju Singh on Railway track. He along with his family members went to police station where they were detained and tortured. During course of their torture, Sita expired. In order to save themselves from murder of Sita, police has falsely implicated him in the case. The aforesaid statement was repeated by accused Dhodu Ram in his statement under Section 313, Cr.P.C. (11). The learned trial Court relying upon the eye witness account of PW 3 Mst. Hari Bai and statement of independent eye witness PW 8 Fatma together with other evidence available on record, recorded finding of guilt against the accused-appellants rejecting their defence versions and sentenced them as stated in the preced- ing paragraph of this judgment. However, Smt. Vimla wife of Dhodu Ram was extended benefit of doubt and she was acquitted. (12). It is urged by the learned Amicus Curiae that FIR Ex. P/4 is ante-time. He invited our attention at page No.1 of the F.I.R. Ex. P/4 wherein in column ``Time 9.15 PM is written. According to learned Amicus Curiae, there is over-writing in figure ``9, which makes the F.I.R. ante time and fatal to the prosecution. (13). The learned Public Prosecutor, on the other hand, invited our attention to the next page of the F.I.R. Ex. P/4 wherein again in column ``Time 9.15 PM is written but there is no over- writing over figure ``9. After critically examining the rival contentions raised at the bar on the aforesaid point, we are of the opinion, that there is substance in the argument advanced by the learned Public Prosecutor. We are satisfied that there is no interpolation in the F.I.R. Ex. P/4 regarding time of lodging the F.I.R. The over-writing pointed out by the learned Amicus Curiae appears to us to be a slip of pen which was corrected by the same ink at the same time. We are satisfied that there is no interpolation in the F.I.R. Ex. P/4 regarding time of lodging the F.I.R. The over-writing pointed out by the learned Amicus Curiae appears to us to be a slip of pen which was corrected by the same ink at the same time. The aforesaid over-writing in figure ``9 has no bearing on the merit of the case and it is hereby repelled. (14). The aforesaid question was also raised before the learned trial court and the learned trial Court has rightly rejected the aforesaid contention after giving cogent and convincing reasons in support thereof with which we are in full agreement. (15). It is next contended by the learned Amicus Curiae Mr. B.K. Pareek that conduct of PW 3 Mst. Hari Bai, in the present case, at the time of occurrence, is most unnatural. She did not make an attempt to shout for help to save the life of her son by calling attention of the people living inthe vicinity of occurrence. It is urged by the learned Amicus Curiae that she herself did not make an attempt to save the life of her son by intervening which led to an inference that she was not present at the spot at the time of occurrence. We are not satisfied with the aforesaid argument of the learned Amicus Curiae. It is a matter of common knowledge which this Court takes judicial notice that every individual person who witnesses a murder reacts in his own way according to his physical, psychological and emotional heal- th. Some of such witnesses are stunned become speechless, some of such witnesses went in fixed mental condition and stand rooted to the place where they are standing or sitting. Some of them become hysteric and start wailing. Some of such witnesses start shouting for help. Some of them under influence of natural instict of self preservation start running from place of occurrence and used to make possible efforts to keep themselves away from the place of occurrence as far as possible even if murderous assault is mounted upon their kith and kin. Thus, in our opinion, there is no set norms of natural reaction of an individual witness who witnessed a murderous assault. To our mind, suggestion of the learned Amicus Curiae to discard the evidence of PW 3 Mst. Thus, in our opinion, there is no set norms of natural reaction of an individual witness who witnessed a murderous assault. To our mind, suggestion of the learned Amicus Curiae to discard the evidence of PW 3 Mst. Hari Bai on the ground that she did not react in a particular manner either by shouting or by intervening in the `Maar Peet, is not acceptable to us. Learned trial Court has committed no error in appreciating the evidence of PW 3 Mst. Hari Bai on this score. (16). It is next contended by the learned Amicus Curiae that the prosecution has failed to establish source of light to identify the real assailants even if the occu- rrence is alleged to have taken place at 7.30 PM on 6.11.92. The learned Amicus Curiae invited our attention towards the statement of PW 13 Satya Narain Khinchi who has stated that he is not able to recollect as to whether at the time of occurrence, the electric light of the road was `ON of `OFF. The learned Amicus Curiae further invited our attention towards the statement of PW 3 Mst. Hari Bai who has categorically stated that electric road light was OFF at the time of occurrence. As regards the statement of PW 13 Satya Narain Khinchi (Investigating Officer) is concerned, we are of the view that the aforesaid question asked by the defence counsel, was not sufficient. He was required to ask from the Investigating Officer as to whether even if the electric road light was OFF at the time of occurren- ce then the light was sufficient or insufficient to identify the accused-persons. It is a matter of common knowledge that immediately after sun-set, it is not so dark to make identification of an individual impossible especially with regard to these persons who are known to each other from before. The submission of the learned Amicus Curiae that identification of accused-appellants by two eye witnesses PW 3 Mst. Hari Bai and PW 8 Fatma in twilight at 7.30 PM is not acceptable to us in view of the statement on oath made by PW 3 Mst. Hari Bai. It is true that PW 3 Mst. Hari Bai has stated that at the time of occurrence, road light was OFF but she has also stated on oath categorically that the gate light of Pusa Niwas where the occurrence took place was ON. Hari Bai. It is true that PW 3 Mst. Hari Bai has stated that at the time of occurrence, road light was OFF but she has also stated on oath categorically that the gate light of Pusa Niwas where the occurrence took place was ON. Neither PW 3 Mst. Hari Bai nor PW 8 Mst. Fatma had been subjected to cross-examination on the point of sufficiency of light whereas both of them had categorically stated on oath that they had recognised the accused-appellants assaulting deceased Raju Singh. In such a situation, it is not possible for us to hold that at the time of occurrence, the light was not sufficient to identify the accu- sed-appellants by two eye witnesses PW 3 Mst. Hari Bai and PW 8 Mst. Fatma. (17). It is evident from perusal of the judgment of the learned Additional Sessions Judge, Bhilwara that the aforesaid question regarding insufficiency of light was raised before him. The learned Additional Sessions Judge has repelled the aforesaid argument regarding insufficiency of light to identify the accused-appell- ants after analytical discussion of the evidence available on record. The finding recorded by the learned trial Court on the point of sufficiency of light to enable the eye- witnesses PW 3 Mst. Hari Bai and PW 8 Mst. Fatma to have identified the accused-appellants, is eminently just and proper with which we are at one. (18). The learned Amicus Curiae vehemently urged before us that PW 3 Mst. Hari Bai and PW 8 Mst. Fatma eye witnesses of the occurrence had intentionally made an attempt to falsely implicate the wife of accused-appellant Dhodu Ram. During investigation Smt. Vimal wife of accused-appellant Dhodu Ram was not even named in the F.I.R. Ex. P/4. According to the learned Amicus Curiae, once the testimony of PW 3 Mst. Hari Bai and PW 8 Mst. Fatma are discarded and disbelieved by the learned Additional Sessions Judge against one accused Smt. Vimla wife of Dhodu Ram then he has no jurisdiction to base his finding of guilt against the accused-appellants on the same evidence. (19). The learned Public Prosecutor with equal vehemence opposed the aforesaid arguments raised by the learned Amicus Curiae. It is urged by the learned Public Prosecutor Mrs. (19). The learned Public Prosecutor with equal vehemence opposed the aforesaid arguments raised by the learned Amicus Curiae. It is urged by the learned Public Prosecutor Mrs. Chandralekha Parihar that in our country, it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. In such cases, it is the function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is submitted by the learned Public Prosecutor that learned trial court has committed no error in doing so. It is further submitted by the learned Public Prosecutor that where the testimony of a witness is tainted to the core and the falsehood and the truth being inextricably intertwined making it impossible for the Court to disintegrate the falsehood from truth only then such testimony can be discarded in evidence in toto. In support of her aforesaid submis- sion, learned Public Prosecutor placed reliance on a decision rendered by the Apex Court in case of State of Uttar Pradesh v. Shanker (1). It is submitted by the learned Public Prosecutor that in the present case, the learned trial Court has successfully disintegrated the truth from falsehood and has committed no error in convicting the accused-appellants while acquitting the wife of accused-appellant Dhodu Ram. (20). We have given our thoughtful consideration to the rival contentions raised at the bar. We have carefully gone through the judgment given by the learned Additional Sessions Judge with the assistance of the learned counsel for the parties. From perusal of the judgment given by the learned trial Court, we are satisfied that the learned trial Court has committed no factual or legal error in acquitting one of the accused i.e. wife of Dhodu Ram whose name did not find place in the F.I.R. Ex. P/4 and further he has committed no error in convicting and sentencing the accused- appellants relying upon the testimonies of eye witnesses PW 3 Mst. Hari Bai and PW 8 Mst. Fatma. Suffice it to say in this regard that concept of `falsus in uno, falsus in omnibus is not recognised by the Indian Courts as a realistic and prudent concept. We are of the view that only because testimonies of eye witnesses PW 3 Mst. Hari Bai and PW 8 Mst. Fatma. Suffice it to say in this regard that concept of `falsus in uno, falsus in omnibus is not recognised by the Indian Courts as a realistic and prudent concept. We are of the view that only because testimonies of eye witnesses PW 3 Mst. Hari Bai and PW 8 Mst. Fatma are discarded while acquitting the wife of the accused-appellant Dhodu Ram, do not mean that on the same basis, the accused-appellants are also entitled for acquittal. Learned trial Court was within its jurisdiction to disintegrate the truth from falsehood and to accept only true statements given by PW 3 Mst. Hari Bai and PW 8 Mst. Fatma and to reject the rest. Here in the present case, truth is not inextricably intertwined making the statements of PW 3 Mst. Hari Bai and PW 8 Mst. Fatma unreliable in toto. In our considered opinion, the learned trial Court has committed no error in convicting and sentencing the accused-appellants on the basis of truthful statements of PW 3 and PW 8. (21). From perusal of the evidence available on record, requisitioned from the learned trial court, we are satisfied that the statements of eye witness PW 3 Mst. Hari Bai is corroborated in all material particulars by an independent eye witness PW 8 Mst. Fatma. The statements of the aforesaid two eye witnesses PW 3 Mst. Hari Bai and PW 8 Mst. Fatma are further fully corroborated by the statement of Medical Jurist PW 2 Dr. Yaspal Singh, who performed the post-mortem and prepared the Autopsy Report Ex. P/2 on 7.11.92. PW 2 Dr. Yaspal Singh has stated on oath that injuries found on the person of deceased Raju Singh can be caused by a sharped- ged weapon like gupti. The gupti is a weapon of assault disclosed in the FIR Ex. P/4. PW 2 Dr. Yaspal Singh further stated that injuries caused to the deceased Raju Singh were sufficient in the ordinary course of nature to cause death. (22). In the premises of the aforesaid discussion, we found no factual and legal mistake in the judgment of the learned Additional Sessions Judge, Bhilwara in con- victing and sentencing the accused-appellants before us. The judgment under appeal warrants no interference. Resultantly, the appeal fails and it is accordingly dismissed.