Hakra v. State of Rajasthan — 1998 DIGILAW 1292 (RAJ)

Judgment V.G. Paishikar, J.-Being aggrieved by the Judgment and order of conviction passed by the Additional Sessions Judge No. 2, Udaipur on 18-6-97 convicting the appellants under Section 302 of the Indian Penal Code sentencing them to imprisonment for life and a fine of Rs. 500/-each, in default one month’s further S. 2. The prosecution case giving rise to the present appeal stated briefly is that; first information report was lodged in Police Station Kherwada by one Kodar Lal at about 9.00 p.m. alleging that at about 5.30 in the afternoon, one Dinesh told him that Hakra, Narayan and Magan, present appellants, have beaten Nawalji and Mani, wife of the person lodging first information report were severely beaten by that accused-persons and they are lying unconscious. The beating was given on a doubt that the wife of Kodar Lal was a demon and therefore, was a threat to the society. While they were taken to the hospital, Nawali died and the other woman Mani was unconscious, later on she survived. On this report which was registered bearing No. 59/88, the investigation was commenced by the S.H.O. Kherwada. The accused were arrested and on completion of the investigation, the matter was put up before the learned Additional Sessions Judge, Udaipur who examined 14 witnesses in support of the prosecution case and on appreciation of the evidence as led before him, came to a conclusion that the accused-persons were guilty of the offence with which they were charged. He therefore, proceeded to convict them as aforesaid. .3. This Judgment is assailed by the learned counsel for the accused on the following grounds: .(1) Theoffence is reported to have occurred at 5.30 in the afternoon of 11-4-88 and the first information report has been lodged at 9.00 in the night. There is thus, unreasonable delay in lodging the first information report which gives room for manipulating the case against the accused as also in interpolating their names after premeditation. Since the prosecution has failed to explain the delay in lodging the first information report, the entire investigation thereafter, is vitiated and the prosecution is liable to be disbelieved. .(2) Even after the F.I.R. was lodged, unexplained delay is caused in recording the statement of various alleged witnesses as contemplated by Section 161 of the Criminal Procedure Code. Since the prosecution has failed to explain the delay in lodging the first information report, the entire investigation thereafter, is vitiated and the prosecution is liable to be disbelieved. .(2) Even after the F.I.R. was lodged, unexplained delay is caused in recording the statement of various alleged witnesses as contemplated by Section 161 of the Criminal Procedure Code. Further delay in the matter of investigation and recording of statement under Section 161 of the Cr.P.C. has given room for manipulation of the statement of the witnesses before the Police as also for scheming implication of the accused persons. In such circumstances according to the learned counsel, the delay, because it is unexplained, is liable to be taken into account for rejecting the prosecution case. .(3) From the evidence as disclosed by the 14 witnesses examined by the prosecution, it is pertinent to note that the persons other than those who are related to the deceased were present at the scene of occurrence, some of them though, examined have turned hostile, others have not been examined and only interested witnesses are mined. Hence, relying on their interested testimony which is not duly corroborated by independent witnesses maintaining of conviction is unsustainable in law. .(4) Even assuming that the evidence of interested and related witnesses is liable to be considered and accepted on due corroborations interest, the contradictions in the present case are so material as require disbelieving each of these witnesses. .(5) It wasalso submitted by the learned counsel that there certainly was no intention on the part of the accused persons to cause death of the victim and therefore, in the absence of proof that the injury caused by the accused persons were such as were sufficient in the ordinary course of nature to cause death, conviction under Section 302 of the Indian Penal Code was unsustainable in law. 4. In thisview of the matter, it was contended by the learned counsel that the accused persons are in custody since 1988 for more than 10 years and even if , they are held guilty, interest of justice would be met, if they are convicted under Section 304 of the Indian Penal Code for culpable homicide not amounting to murder and sentence to 10 years imprisonment. 5. The learned Public Prosecutor appearing on behalf of the State contended relying heavily on the deposition of PWs. 5. The learned Public Prosecutor appearing on behalf of the State contended relying heavily on the deposition of PWs. 3,6 and 14 who were eyewitnesses to the incident that the prosecution has proved this beyond reasonable doubt and there is no reason to interfere with the Judgment of the learned Judge convicting them under Section 302 of the Indian Penal Code. 6. With the assistance of the learned counsel for the accused as also for the State, we have reappreciated the entire evidence on record. 14 witnesses have been examined by the prosecution. PW-1 Bada and PW-2 Bhiniraj sought to be examined as eye- witnesses, were declared hostile by the prosecution. Their evidence is of no assistance to us in this case. 7. PW. 3 Mani wife of Kodar Patel is the injured eye-witness to the whole incident. She has stated that her sister Nawali had quarrel with the accused persons and the accused persons hit her with a KOS on the head and chest and when the witness tried to intervene, she was also injured by the accused persons. She has deposed and named the three accused persons involved in the assault. The witness has been extensively cross-examined. However, the cross-examination does not disclose any such discrepancy which requires that her entire deposition is liable to be disbelieved. She describes the incident with sufficient particulars and it cannot be ignored that she was injured while saving her sister Nawali who died. The fact that she was injured proves her presence at the scene of occurrence beyond reasonable doubt and there is nothing in the cross-examination to show that she has falsely implicated the accused allowing the real culprit to go scot-free such being not the case. There is no reason why her testimony should not be accepted. She has been corroborated with all material particulars by another eyewitness Varsa PW-6 and child witness Dinesh PW-14. Over all appreciation of the evidence of these witnesses in our opinion, proves the case of the prosecution beyond reasonable doubt. It is undisputed in the present circumstances that the accused persons and members of the village doubted the character of Nawali the deceased and considered her as a witch visited by demon and therefore, had a deep grudge against her. 8. It is undisputed in the present circumstances that the accused persons and members of the village doubted the character of Nawali the deceased and considered her as a witch visited by demon and therefore, had a deep grudge against her. 8. PW-4 Hakra is the husband of deceased Nawali and he was in his field when he was told of the assault on his wife. PW-5 Kodar Lal is the father of PW-14 Dinesh and on relies what has been stated by Dinesh in his deposition not being an eye-witness, his evidence is consequential for the purposes of establishing the incident. However, the evidence of PWs-4 and 5 to whom immediate disclosure of the entire happenings was made by PW-14 proves that what is stated by Dinesh is the truth as corroborated by the deposition of PWs-2,4 and 6 who narrate the incident in the Court as was narrated to them by Dinesh. Their disclosure of the incident as was immediately told to them by Dinesh is thus, sufficient corroboration of the fact that Dinesh was an eyewitness to the incident and had immediately stated the whole incident to his father and uncle. The evidence of these two witnesses has corroborative value. 9. PW-6 Varsa is an eye-witness. This witness has given a good description of the incident as it occurred and was seen by her. The witness described the injury inflicted on the person of Nawali and how Nawali succumbed to the injury. This witness has been extensively cross-examined and the cross-examination does not reveal any serious lacunae in the deposition of the witness. 10. PW-7 Banshi Lal is declared hostile as also PW-8 Kura and PW-9 Bada denied that he has seen any incident. 11. PW- 10 Devendra Kumar is a photographer who proves photographs of the scene of occurrence and dead body. PW-1 1 Doctor is the person who conducted the post-mortem. He speaks of the manner in which the death was caused and proves the homicidal death of Nawali. PW-12 Mool Chand is the Investigating Officer. PW-13 is the Constable who took the blood soil and clothes to the F.S.L., Jaipur. The evidence of these persons has direct bearing on the commission of the crime but they incidently corroborate the homicidal death of Nawali. 12. PW. 14 Dinesh Kumar is the all important eye-witness. He deposes of the quarrel between his mother and his Mausi. PW-13 is the Constable who took the blood soil and clothes to the F.S.L., Jaipur. The evidence of these persons has direct bearing on the commission of the crime but they incidently corroborate the homicidal death of Nawali. 12. PW. 14 Dinesh Kumar is the all important eye-witness. He deposes of the quarrel between his mother and his Mausi. He deposes that Magan and Hakra the accused lifted the steel rod from the shop of Banshi and hit his Mausi on the head and then on her chest. He states that Narain had caught hold of her and Magan assaulted her. He has then said that his mother was standing in the Court yard of the house and she was also assaulted by these three accused who inflicted injuries on head and right shoulder of his mother. Narain caught hold his mother and Hakra and Magan assaulted. Then his mother became unconscious and these persons dropped her on the ground and ran away. Then Bada Ba came there and told me to call to my father and I went and called my father. He states that he lost his Mausi but his mother is living. The witness has withstood the cross-examination well, his testimony corroborates the testimony of other two eye-witnesses PWs. 3 and 6 and they in turn corroborate the statement of PW-14 Dinesh. Apart from this, Dinesh states in his examination that he immediately disclosed the incident as it quote to PWs-4 and 5 his father and uncle, they have been examined as PWs-4 and 5. They deposed in their testimony that they received information from Dinesh and they narrated it as they heard it from Dinesh, their narration proves that Dinesh had immediately disclosed the entire incident to them as is deposed by him in the Court later on. In this case, therefore, the testimony of eye-witnesses which has substantial evidenciary value is duly corroborated by evidence in the form of narration of the incident as immediately disclosed to them by two other relations of the family and thus, the; prosecution has succeeded in proving beyond reasonable doubt the involvement of three accused persons in assaulting Nawali and causing her death, they are extraneous circumstances as alleged by the learned counsel. 13. Reliance was placed by the learned counsel on the following Judgment s; 14. 13. Reliance was placed by the learned counsel on the following Judgment s; 14. In the first Judgment of Baij Nath reported in 1998 (1) RCD 66 : 1998 CriLJ 2059 (SC), there is material improvement in the deposition of the eye-witness which led the Court to disbelieve them. No such material improvement in the present case is demonstrated and the case is liable to be distinguished. 15. Thesecond case of Ahmed Deen reported in 1998 WLC (Raj) (UC) 606 is also materially different on facts. There, the prosecution has failed to establish any connection between the recovered gun and the accused and therefore, it was found unfit by this Court to maintain the order of conviction. In the present case, there is no such lacunae which would require acquittal of the accused. 16. Similar is the case of Mehrooda vs. State reported in 1982 Cri LR (Raj) 659 where the witnesses have been disbelieved for entirely different reasons. The decision is entirely related to the facts of the case and has no application in the present case. 17. Babu Maulana’s case reported in 1986 Cri LR (Raj) 518 also is entirely different and inconsequential. In that case, the eye-witness was disbelieved because the witness did not intervene or accompany the deceased or police and therefore, it was observed that the explanation of fear was not believable and therefore, the witness was considered to be one not person but created. In this case PW-3 Mani is injured eye-witness who was injured because she tried to intervene and was taken hospital along with the deceased. The ratio of that Judgment therefore, cannot apply in the present case. 18. The next Judgment of Jai Singh reported in 1984 Cri LR (Raj) 124 pertains to receiving the copy of the FIR by the Magistrate as also variance between two versions of the eye-witnesses, therefore, the evidence was not corroborated by other evidence and therefore, it was not safe to rely on that evidence, in this case, the evidence of eye-Witnesses is corroborated by the other witnesses to whom immediately disclosure of the incident was met. That ruling is also of no assistance of the learned counsel. 19. In the result, there is no substance in this appeal and the same is dismissed.