Dalichand v. State of Rajasthan — 1999 DIGILAW 675 (RAJ)

Honble PALSHIKAR, J.–This appeal is directed against the order dated 30.1.1978 passed by learned Sessions Judge, Balotra in sessions case No. 18/77 convicting the accused appellants under Sec. 302 read with Secs. 149, 148 and Secs. 148 and 147 of the Indian Penal Code and sentencing them to suffer life imprisonment for the offence under Sec. 302 read with Sec.149 and suffer two years rigorous imprisonment for the offence under Sec. 148 and to suffer six months rigorous imprisonment for the offence under Sec. 147 of the Indian Penal Code. All the sentences were directed to run concurrenly. (2). Facts giving rise to the appeal stated briefly are that on 15.4.1977 at about 2.30 pm, the first information report was lodged by Shri Pukh Raj S/o Kundanmal stating that persons named in the report including Dalichand have assaulted one Surajmal who as a result of assault subsequently died. The first information report was later on proved as Ex. p/1 with its proforma copy as Ex. P/1-A. (3). On the basis of this information report, investigation was carried out by the Station House Officer under the guidance of the Dy. S.P. and on completion of investigation after arresting the accused persons, challan was filed, on the basis of which, sessions trial No. 18/77 was commenced in the Court of Sessions Judge, Balotra. (4). The prosecution has examined as many as 14 witnesses to prove its case. On appreciation of the evidence, the learned Sessions Judge came to the conclusion of guilt by his order dated 30.1.1978 in Sessions Case No. 18/77 convicting the accused for the offences under Secs. 302/149, 148,147 IPC and sentenced the accused to suffer imprisonment for life. It is this order of learned Sessions Judge which is challenged by the accused in this appeal. We have re-appreciated the evidence on record and reconsidered the entire case in the light of the contentions raised in the memo of appeal on behalf of the accused. (5). PW.1 Mohanlal S/o Kaujraj aged 27 years has stated that he is resident of village Ramania and his house is situated opposite the locality occupied by Rebari community. We have re-appreciated the evidence on record and reconsidered the entire case in the light of the contentions raised in the memo of appeal on behalf of the accused. (5). PW.1 Mohanlal S/o Kaujraj aged 27 years has stated that he is resident of village Ramania and his house is situated opposite the locality occupied by Rebari community. He states that on 15.4.1977 when he was brushing teeth in the morning, he heard shouts from the locality of Rebari and he went to the riverside portion of his house, where he saw eight people beating Surajmal, whom he identifies as accused persons in court. (6). He states that accused Dalichand and Magia had axes in their hands and the rests were armed with lathis. The witness also states that one Pukhraj also saw the incident and he along with witness requested them not to beat Surajmal, on which they were threatened with direct consequence by the accused persons. The witness then arranged for transporting the injured Surajmal to hospital who on reaching hospital, was pronounced dead. In his cross-examination, he has stated that when he carried Surajmal, he was wearing a Banyan which had blood stained but same was not handed over to the hospital. He has stoutly denied the suggestion that he only saw Surajmal lying injured in the locality of Rebari and did not see anyone assaulting Surajmal. He has also denied the suggestion that he and Pukhraj are deposing that due to political enmity, most of the cross-examination is devoted to prove enmity of the witness towards the accused persons. (7). PW.2 Ummed Singh S/o Sohan Singh is a boy of 13 years who has deposed that on hearing commotion from the locality, he went towards it and saw Mohanlal standing in his house as also Pukhraj standing nearby. All the eight accused persons were beating Suraj Mal then Pukhraj and Mohanlal requested them not beat Surajmal. The witness then went away towards ``Seri. He has stated that the accused persons assaulted the victim with lathi and axes. According to the witness, Dalichand and Mohanlal were armed with axes. When he returned home in the evening, he told of occurrence to his father. The cross-examination of this witness is also inconsequential. (8). PW. The witness then went away towards ``Seri. He has stated that the accused persons assaulted the victim with lathi and axes. According to the witness, Dalichand and Mohanlal were armed with axes. When he returned home in the evening, he told of occurrence to his father. The cross-examination of this witness is also inconsequential. (8). PW. 3 Sohan Singh S/o Karan Singh has deposed that at about 8.30 in the afternoon, he saw Surajmal lying on a cot, his body had severe injuries which were bleeding and at that time, Surajmal was talking to his wife, he therefore, left the place. Then the witness has stated that he knows the accused persons by sight and name and saw them going towards the Chota of Suraj Mal and then he saw them returning towards Chota from the location of Rebari. Dalichand and Mohanlal had axes with them and rests had lathis. He then names the persons who had lathis. The witness then deposed that he reached Surajmal in his Chota. He heard Suraj Mal telling his wife that he has been assaulted by eight accused persons. The cross-examination of this witness is also devoted to prove his enmity and political rivalry. He is obviously not an eye-witness to the assault but visited the scene of offence immediately after the occurrence and heard the deceased telling his wife that the accused persons had assaulted him. He had also seen the accused persons armed as they were leaving the place of occurrence. (9). PW. 4 Pukhraj is the person who lodged the first information report. He states that on hearing the commotion on 15.4.77 at about 8.00 A.M., he went to riverside of his house and saw the eight accused persons assaulting Surajmal. He states that Magia and Dalichand were armed with axes and the rests had lathis. He states that the lathis of Harji Choudhary was wrapped with barbed wire. He saw Mohanlal arriving at in his house and both of them requested the accused not to assault the victim, on which the accused persons threatened the witness also. He has categorically deposed that all the persons were simultaneously assaulting the deceased. When they saw that Surajmal is about to die, they left Surajmal. The witness then with the help of Mohan Lal took Surajmal to his house and thereafter to the hospital. The cross-examination of this witness is inconsequential. He has categorically deposed that all the persons were simultaneously assaulting the deceased. When they saw that Surajmal is about to die, they left Surajmal. The witness then with the help of Mohan Lal took Surajmal to his house and thereafter to the hospital. The cross-examination of this witness is inconsequential. It does not shake the testimony or the credibility of the witness. (10). PW. 5 Dr. Subudhimal Mehta is the Medical Officer who conducted the post mortem on the person of Surajmal on 15.4.1977. He has deposed that he found as many as 41 injuries on the body of the deceased and they caused synocop due to hemorrhage and multiple injuries. He has stated that not a single injury but the cumulative effect of all the injuries had caused the death. The witness thus proved the homicidal death of Surajmal. The cross-examination of this witness is inconsequential. (11). PW. 6 Dhanushdhari Singh is the Constable who carried certain articles for analysis. PW. 7 Tarachand has been examined to depose the enmity between the accused persons and the deceased. He is not an eye-witness. This witness has stated that on 15.4.77, he heard at about 10.30 in the morning at the bus stand that Surajmal was assaulted, he therefore, went to the shop of Hukamdan. He along with others went to Ramnia village by jeep where they saw Surajmal lying on the bed, his body was injured in many places. On being asked by the witness as to who assaulted him, Surajmal told the witness that he was beaten by the accused. The witness names the accused persons. They then accompanied Surajmal to the hospital and when they reached the hospital after Surajmal, they found Surajmal dead. (12). PW. 8 Lal Chand S/o Prem Chand also went to the place of occurrence and had seen Surajmal lying injured. The witness was told by Pukhraj that Surajmal was assaulted by Dalichand and his colleagues. The witness was present when Tarachand asked Surajmal as to who assaulted him and corroborates the statement of Tarachand that Surajmal stated that he was assaulted by the accused persons. (13). PW. 9 Sawai Singh is the Police Constable who carried the articles to the office of S.P. Barmer. PW. The witness was present when Tarachand asked Surajmal as to who assaulted him and corroborates the statement of Tarachand that Surajmal stated that he was assaulted by the accused persons. (13). PW. 9 Sawai Singh is the Police Constable who carried the articles to the office of S.P. Barmer. PW. 10 Hukamdan, he also went to the place of occurrence after the occurrence was known to him and was present when witness Tarachand asked deceased as to who assaulted him, he also generally corroborates the testimony of Tarachand. The witness accompanied the deceased to the hospital. (14). PW. 11 Devilal is the S.H.O. who on hearing the report of serious condition of Surajmal, immediately went to the hospital in Siwana at about 10.00 in the noon on 15.4.1977. He has stated the part of investigation conducted by him and the documents prepared and executed by him. (15). PW. 12 Surajkaran is the Dy. S.P. of Balotra who investigated the offence. With the assistance of S.H.O. , he has deposed to the manner in which the investigation was conducted. There is nothing to discredit the testimony of this witness. PW.13 Phool Chand is one of the panch witnesses to execution of certain documents. Similar the case of PW. 14 Kalyan Singh. (16). This is in fact the evidence on the basis of which, the learned Judge, Balotra has recorded the finding of guilt and ordered the sentence of life imprisonment. (17). We will now consider the submissions made by the learned counsel in light of the evidence as reappreciated by us above. The learned counsel submitted that the entire story of the prosecution is liable to be rejected as there is premediation in the matter of lodging of first information report and the entire story is a concoction. From the evidence, we are unable to accept this contention. It does not have any basis and is liable to be rejected for the reasons that one Hukum Dan had informed the Police at about 12.00 in the noon on 15.4.1977 that there was a quarrel in village Ramnia and the injured person has brought to the town Siwana and has reached to the Government Dispensary in Siwana. The name of the injured is given as Surajmal ad it is stated that his condition is serious. The name of the injured is given as Surajmal ad it is stated that his condition is serious. It then states that on receipt of this information, the Station House Officer immediately proceeded to the Hospital. This document Ex. D/6 is brought on record at the instance of the defence and it is argued. On the basis of this document, such information was lodged. The names of accused persons were not mentioned and, therefore, mention of the names in the regularly written report made later on demonstrates premeditation and concoction on the part of the prosecution requiring rejection of the entire prosecution story. We are not impressed by this argument as Hukum Dan who submitted this report Ex. D/6 was not a person who was an eye-witness to the incident and there is nothing on record to show that he was in any manner connected with the incident and had the knowledge of the names of the accused persons. The eye-witnesses have very categorically stated the manner in which the incident occurred and merely because there is some delay in lodging the first information report, the entire prosecution story cannot be rejected in toto. (18). The learned counsel then submitted that the evidence of the eye-witnesses is liable to be rejected for the reasons that there are material contradictions in the evidence of this witness. We are unable to accept this submission for the reasons that the contradiction as pointed out by the learned counsel are not material, such discrepancies in the depositions of eye-witnesses are natural and each witness has given account of the incident as he saw it and as it was registered in his mind after seeing it. It cannot be accepted that several witnesses who see the incident to be identical in the description of that incident few months thereafter and consequently, such discrepancies are bound to appear in the evidence. (19) PW. 1 Mohan Lal is a resident of village Ramnia and stays near the place of occurrence, his presence was natural and he has stated what he saw on that day. He has described the manner in which the accused were armed and the manner in which the accused were armed and the manner in which they assaulted the deceased. 1 Mohan Lal is a resident of village Ramnia and stays near the place of occurrence, his presence was natural and he has stated what he saw on that day. He has described the manner in which the accused were armed and the manner in which the accused were armed and the manner in which they assaulted the deceased. This witness has deposed in his cross-examination that when he carried Suraj Mal, his Banian was stained with blood but it was not handed over to the police in the hospital. Most of the cross-examination is devoted to prove enmity between the parties and is not such as would taint the veracity of the witness. The testimony of this witness is corroborated by PW2 who is a boy of 13 years. There is thus, no reasons to reject the entire evidence of this eye-witness on the alleged existence, the same are not material to require disbelieving of the witness. (20). It was then contended that both Pukhraj and Mohan Lal who claimed to be eye-witnesses are interested witnesses and were enimically placed against the accused and their testimony was therefore, tainted with personal bias and it cannot therefore form a basis for conviction. Assuming that these two witnesses are partition witnesses and their testimony should not form basis of conviction, it is seen from the evidence of PW 2 Ummed Singh is a boy of 13 years who saw the incident and has named the accused persons and has seen Mohan Lal and Pukhraj standing near the scene of occurrence when the incident occurred. This witness Ummed Singh has disclosed the entire incident to his father when he returned and has withstood the cross-examination. The testimony of this witness therefore, corroborates the testimony of Pukh Raj and Mohan Lal who are branded by the defence as partition witnesses. Their testimony however stands corroborated by the evidence of Ummed Singh. This witness is further corroborated by PW 8 who went to the scene of occurrence immediately after the assault and has corroborated the eye-witnesses account of Ummed Singh. The evidence of Ummed Singh is therefore, sufficient to maintain the conviction of the accused persons as recorded by the learned Judge. This witness is further corroborated by PW 8 who went to the scene of occurrence immediately after the assault and has corroborated the eye-witnesses account of Ummed Singh. The evidence of Ummed Singh is therefore, sufficient to maintain the conviction of the accused persons as recorded by the learned Judge. (21) It was then contended that the prosecution story is liable to be rejected for the reasons that all the witnesses despose of bleeding injury to the deceased but no blood stained clothes were seized from the person who carried the deceased nor is there any blood stained soil recovered from the scene of occurrence and hence, the prosecution story is liable to be rejected. We are not impressed by the contentions for the simple reason that the witness clearly admitted in cross-examination that his ``Banian was stained with blood when he carried the deceased, but he did not hand over the same to the police in the hospital. It is pertinent to note that when Surajmal was brought in the hospital, he was alive and not dead and therefore, the question was of no consequence. We have accepted the oral testimony of Ummed Singh in relation to the occurrence. The fact that no clothes were recovered from the carriers becomes insignificant on this ground, the prosecution need not to disbelieved. (22). Then it is submitted by the learned counsel that statement of some of the witnesses were recorded under Sec. 164 of the Cr. P.C. and it makes their statement doubtful and some other witnesses were signatory to documents which were accepted during the trial as persons in whose presence, the documents were executed. We are unable to accept this contention for the reasons that there is nothing in the language of Sec. 164 which requires a presumption that a statement, other than confession is recorded under Sec. 164 because the police did not believe in the credibility of the witness, merely because, statement is recorded under Sec. 164, credibility of the witness cannot be doubted. The contention deserves to be rejected on this ground. (23). The learned counsel had stated several judgments before us in support of the submissions made by him which we have dealt with above. The contention deserves to be rejected on this ground. (23). The learned counsel had stated several judgments before us in support of the submissions made by him which we have dealt with above. The precedence as stated at the bar are no doubt binding in relation to the ratio of the cases, but none of those have any application to the facts of the present case and are liable to be distinguished on facts. (24). We see no reason to interfere with the finding recorded by the learned Sessions Judge. The testimony of the eye-witnesses is duly corroborated and all the witnesses corroborate each other on all material particular. It is obvious that the accused persons only are responsible for the homicidal death of Surajmal. Since we are in full agreement with the reasons given by the learned Judge for the conclusion of guilt, we find unnecessary to repeat those reasons or give our own reasons separately. We therefore, confirm the impugned judgment and sentence passed by the learned Sessions Judge and dismiss the appeal. The accused persons are on bail, their bail bonds are cancelled and they shall surrender immediately.