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2000 DIGILAW 1062 (RAJ)

Lalu v. State of Rajasthan

2000-08-21

SUNIL KUMAR GARG

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Honble GARG, J.–The above-named accused appellants have preferred this appeal against the judgment and order dated 8.6.1999 passed by the learned Additional Sessions Judge No.2, Chittorgarh in Sessions Case No. 101/98 by which he convicted both the accused appellants u/S. 304 Part II/34 IPC and sentenced each of them to undergo five years Rigorous Imprisonment and a fine of Rs. 15, 000/-and in default of payment of fine, to further undergo one year Simple Imprisonment. (2). The facts giving rise to this appeal in short are as follows:- On 25.1.1997 at about 5.30 PM, PW2 Narain Singh lodged an oral report before PW14 Heeralal, S.H.O., Police Station Bijaypur District Chittorgarh stating inter-alia that when he was working at about 2.30 PM outside the Khala, then Bheel women and men belonging to Rajpuria came there and infront of them, accused Lalu was going and at that time he was under the superficial control of divine power and after about half hour, PW 7 Udda Bheel, who is also resident of Rawla, came running and he was crying and he was also perplexed and at that time, accused Lalu and other persons, who were with him, went out from Rawla hurriedly. It is further stated that thereafter PW 2 Narain Singh asked PW 7 Udda Bheel what was the matter, then he told that alongwith Lalu accused, his brother another accused appellant Dalla was also there and some ladies and women were also there and when Lalu was under the superficial control of divine power, he was sitting at the Chabootra and at that time, Chimaniya (hereinafter referred to as the deceased), who also belongs to Rawla, came there showing divine power. Then, accused appellant Lalu caughthold of deceased and another accused appellant Dalla also posed himself under the influence of divine power and caughthold of deceased. Thereafter, accused Lalu took the curtain made of nylon and put that curtain around the neck of deceased forcibly. Then, PW 4 Bhupendra Singh also came there and accused Lalu posing himself under the superficial control of divine power went upto the pole alongwith his team. Thereafter, accused Lalu took the curtain made of nylon and put that curtain around the neck of deceased forcibly. Then, PW 4 Bhupendra Singh also came there and accused Lalu posing himself under the superficial control of divine power went upto the pole alongwith his team. It is further stated in the report that PW 7 Udda Bheel further stated to PW 2 Narain Singh that deceased fell down on the Chabootra and died and after hearing the news that deceased has died, another persons PW 10 Mohan, PW6 Harikishan and PW 5 Beniram also came there. Thereafter, PW 7 Udda Bheel touched the hands of the deceased in order to verify what has happened to him and he found that deceased has already died and the dead body of the deceased was lying on the Chabootra. It has been further stated that deceased has been killed by accused Lalu and other members of his family by performing the act of superstition. (3). This oral report was reduced in writing by PW 14 Heeralal and the same is Ex. P/3 and, thereafter, regular FIR No. 10/97 Ex.P/5 was chalked out by PW 14 Heeralal and started investigation. During investigation, post mortem of the dead body of the deceased was got conducted by PW 3 Dr. Ashok Maheshwari and the post mortem report is Ex.P/7. (4). After usual investigation, the police submitted the challan against both the accused appellants as well as against Pema, Smt. Ratni and Smt. Ugmi in the Court of Magistrate and thereafter, the case was committed to the Court of Session. (5). The learned Additional Sessions Judge No. 2 vide his order dated 23.7.1997 discharged accused Pema, Smt. Ratni and Smt. Ugmi of the offences levelled against them, but framed charges under sec. 302 IPC against accused appellant Lalu and u/S. 302/34 IPC against accused appellant Dalla. The charges were read over and explained to accused appellants, who pleaded not guilty and claimed trial. (6). In support of its case, the prosecution examined as many as 15 witnesses and 25 documents were got exhibited and thereafter, statements of accused appellants u/S. 313 Cr.P.C. were recorded and accused appellants produced one witness in defence and also exhibited one document in defence. (7). (6). In support of its case, the prosecution examined as many as 15 witnesses and 25 documents were got exhibited and thereafter, statements of accused appellants u/S. 313 Cr.P.C. were recorded and accused appellants produced one witness in defence and also exhibited one document in defence. (7). After recording evidence and conclusion of trial, the learned Additional Sessions Judge No. 2, vide his judgment and order dated 8.6.1999 convicted both the accused appellants u/S. 304 Part II/34 IPC instead of Sec. 302 IPC and sentenced them in the manner as stated above. In convicting the accused appellants u/S. 304 Part II/34 IPC, the learned Additional Sessions Judge No. 2 has placed reliance on the statement of PW 7 Udda Bheel and the post mortem report of the deceased Ex. P/7 and some other evidence. (8). Aggrieved from the said judgment and order dated 8.6.1999 passed by the learned Additional Sessions Judge No. 2, Chittorgarh, the present appeal has been filed by the accused appellants. (9). In this appeal, the following submissions have been made by the learned counsel for the accused appellants. 1. That in this case FIR was lodged by PW 2 Narain Singh, who has been declared hostile and, therefore, the whole conviction of accused appellants, which is based on the statement of PW 7 Udda Bheel should not be sustained, in view of the fact that other witnesses including father of the deceased PW 15 Ratna have also been declared hostile. 2. That in the present case, motive of murder is absent and that is why, the learned Additional Sessions Judge No. 2 acquitted the accused appellant for the offence u/S. 302 IPC and convicted them u/S. 304 Part II/34 IPC. 3. Alternatively, it has been submitted that if the Court feels that the findings of conviction are correct one, then accused appellants be sentenced to the period already undergone by them and fine may also be reduced as they are not in a position to make payment of fine of Rs. 30, 000/-. (10). On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Additional Sessions Judge No. 2, Chittorgarh. (11). I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case. (12). First I should take up the medical evidence in the present case. (13). (11). I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case. (12). First I should take up the medical evidence in the present case. (13). In this respect, the statement of PW3 Dr. Ashok Maheshwari may be referred to. He states that on 26.1.1997 he examined the dead body of the deceased and found injuries on his body. The cause of death of deceased opined by Dr. Ashok Maheshwari, PW 3 in the post mortem report Ex. P. 7 reads as under:- ``On the basis of external and internal examination made by me, I am of the opinion that death is due to asphyxia caused by hanging. (14). Therefore, it can be said that death of the deceased was homicidal and not natural one. (15). The next point to be considered is whether death of deceased has been caused by accused appellants or not. (16). No doubt in the present case, PW2 Narain Singh, who lodged the report Ex.P/3 has been declared hostile, but he has admitted the prosecution case to some extent that both accused appellants were present at the place of occurrence and he has further admitted that he was told by PW 6 Harikishan and PW 7 Udda that deceased has been killed by accused appellant Lalu, but how he has been killed he does not know. (17). PW 4 Bhupendra Singh has been declared hostile, but he also admits that he saw the deceased tied with the curtain and he also saw both accused appellants coming out from the temple of Mataji and at that time, both accused appellants were under the artificial influence of divine power. (18). PW 5 Beniram has also been declared hostile, but he also admits that PW 7 Udda came to him and told that deceased has been killed by both accused appellants. (19). PW 6 Harikishan has also been declared hostile, but he admits the presence of accused appellants and of deceased on the spot. (20). PW 15 Ratna is the father of the deceased. He has also been declared hostile. (21). Before discussing the evidence of PW 7 Udda, it may be stated here that it is wrong to say that these hostile witnesses do not say anything against the accused appellants. (20). PW 15 Ratna is the father of the deceased. He has also been declared hostile. (21). Before discussing the evidence of PW 7 Udda, it may be stated here that it is wrong to say that these hostile witnesses do not say anything against the accused appellants. On the contrary, they admit the presence of both accused appellants on the spot including that of deceased and further they also say to some extent that deceased was killed by accused appellants, but the manner in which deceased has been killed, they are silent on this point. (22). The next question that arises for consideration is how far the statements of hostile witnesses are relevant in the present case. Hostile witness (23). A `hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the Court. A hostile witness is not necessarily a false witness. Merely because one part of the statement of a witness was not favourable to the party calling him, the Court should not readily conclude that he was suppressing the truth or that his testimony was adverse to that party. Hostility of a witness is to be judged from the answers given by him. (24). Where the party calling a witness declared him hostile and allowed to be cross-examined, his evidence, if corroborated by other reliable evidence, can be looked into. It may further be stated here that Court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto. Thus, the statement of the hostile witness can be relied upon partly. (25). On this point, the decisions of the Honble Supreme Court in the following cases may be seen:- 1. Sayad Akbar vs. State of Karnataka (1) 2. Rabindra Kumar Dey vs. State of Orissa (2) 3. Karuppanna Thevar vs. State of Tamil Nadu (3) 4. Bhagwan Singh vs. State of Haryana (4) 5. Sant Paul vs. Delhi Administration (5) and 6. U.P. vs. Chetram (6) (26). In the present case, the statements of those witnesses, who have been declared hostile, have been discussed above and from perusing them, it appears that to some extent they are supporting the case of the prosecution. (27). Now, the statement of PW 7 Udda remains to be discussed. U.P. vs. Chetram (6) (26). In the present case, the statements of those witnesses, who have been declared hostile, have been discussed above and from perusing them, it appears that to some extent they are supporting the case of the prosecution. (27). Now, the statement of PW 7 Udda remains to be discussed. This witness in his statement states that accused appellant Dalla was also under the artificial influence of divine power, but accused appellant Lalu was more aggressive than accused appellant Dalla and deceased was caughthold by accused appellant Lalu and, thereafter, accused appellant Dalla took the curtain and put the curtain around the neck of the deceased and, thereafter, deceased died. This witness has been cross-examined, but one fact has come in his cross examination that he is not in speaking terms with the accused appellants. (28). The next question arises for consideration is whether in the above facts and circumstances, the statement of PW 7 Udda should be relied on or not. (29). Before proceeding further, it may be stated that it is wrong to say that there is only solitary statement of PW 7 Udda, in the present case. (30). Apart from this , as is evident from Sec. 134 of the Evidence Act, no particular number of witnesses shall in any case be required for the proof of any fact. In Roman Law, evidence was governed by the numerical system, that is to say, that testimony was counted, not weighed, one oath being in no case sufficient. It appears that the rule was the same even during the Anglo-Saxon and Norman times. The Muhammadan law also required a fact to be proved by a particular number of witnesses in certain cases. But the Indian Evidence Act provides in no uncertain term in Sec. 134 of the Act that no particular number of witnesses shall in any case be required for the proof of any fact, thereby attaching more importance to the quality than to the quantity of evidence. The general rule in England is the same at present, though there are certain statutory exceptions engrafted on the general rule. In India, though there are no statu-tory exceptions to the rule in Sec. 134, in practice corroboration is generally required in certain cases, the requirement depending on the nature of the single witness and/or on the gravity or the particularity of the issue. In India, though there are no statu-tory exceptions to the rule in Sec. 134, in practice corroboration is generally required in certain cases, the requirement depending on the nature of the single witness and/or on the gravity or the particularity of the issue. Thus, corroboration is required generally in the case of an accomplice witness, in sexual offence and in murder cases, and the ground of requirement is rested on `prudence since Sec. 134 says that no particular number of witnesses shall in any case be required for the proof of any fact. Questions often arise in Courts as to the precise limits of this rule of prudence. (31). On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established:- 1. As a general rule, a Court can and may act on the testimony of a single witness, though uncorroborated. One credible witness outweights the testimony of a number of other witnesses of indifferent character. 2. Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, the corroboration should be insisted upon, for example in the case of a child witness whose evidence is that of an accomplice or of an analogous character. 3. Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. (32). Therefore, I have no hesitation in holding that the contention that in murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. (33). Thus, in India conviction can be passed on the testimony of single witness, if it is found trustworthy, for that the decision in Marwadi Kishor Parmanand vs. State of Gujarat (7) may be referred to. (34). Keeping the above principles in mind, in the present case, the statement of PW 7 Udda is not alone before us. His statement gets corroboration from the statements of other hostile witnesses to some extent and further, medical evidence also supports the prosecution case as well. (35). (34). Keeping the above principles in mind, in the present case, the statement of PW 7 Udda is not alone before us. His statement gets corroboration from the statements of other hostile witnesses to some extent and further, medical evidence also supports the prosecution case as well. (35). Thus, if the learned Additional Sessions Judge No. 2 has relied on the statement of PW 7 Udda, which is supported by other evidence, he has committed no irregularity in doing so and, therefore, the findings of the learned Additional Sessions Judge No. 2 convicting accused appellants u/S. 304 Part II/34 IPC are liable to be confirmed. (36). It may be stated here that the approach of the learned Additional Sessions Judge No. 2 on the point that since motive was not found in the present case, therefore, he came to the conclusion that case u/S. 304 Part II/34 IPC is made out instead of 302/34 IPC, is not correct one. Here he should have discussed that since there was no intention on the part of the accused appellants to murder deceased, but knowledge was there on their part, therefore, the case is covered u/S. 304 Part II/34 IPC. However, there is no doubt that from every point of view, the present case falls u/S. 304 Part II/34 IPC and therefore, the findings of the learned Additional Sessions Judge No. 2 convicting accused appellants u/S. 304 Part II/34 IPC are correct, but approach is wrong. (37). So far as the motive is concerned, there is a large difference between motive and intention and prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is known only to the perpetrator of the crime and may not be known to others. Apart from this, motive is irrelevant where there is a direct evidence and it plays a vital role when the case is based on circumstantial evidence. Therefore, the argument that motive is missing in this case, has no bearing. That part of the impugned judgment of the learned Addl. Sessions Judge No. 2 where the point of motive has been discussed, should be treated as irrelevant. (38). Therefore, the argument that motive is missing in this case, has no bearing. That part of the impugned judgment of the learned Addl. Sessions Judge No. 2 where the point of motive has been discussed, should be treated as irrelevant. (38). Thus, for the reasons stated above, the appeal of the accused appellant is liable to be dismissed and the findings of the learned Additional Sessions Judge No. 2 convicting accused appellants u/S. 304 Part II/34 IPC are liable to be confirmed. (39). On the point of sentence, it has been argued by the learned counsel for the accused appellant that both accused appellants be sentenced to the period already undergone by them and the fine imposed on them may also be reduced. (40). I have considered this aspect. No doubt the question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, the appellate court should not interfere except in cases where strong reasons persist. (41). In the present case, sentence of five years for the offence falling u/S. 304 Part II/34 IPC is neither excessive nor unreasonable. Therefore, this Court would not like to interfere so far as the sentence of five years R.I. is concerned. But, in this case, both accused appellants were also fined to the tune of Rs. 15, 000/-each and on depositing the said amount by accused appellants, the said amount has been ordered to be given to PW 15 Ratna. In my opinion, this fine is excessive, especially looking to the fact that accused appellants are by caste Bheel, which is poor community of Rajasthan. Hence, it is just and proper to reduce the amount of fine imposed on both the accused appellants from Rs. 15, 000/-each to Rs. 1, 000/-each. (42). In the result: 1. The appeal of both the accused appellants is dismissed and the judgment and portion of that order dated 8.6.1999 passed by the learned Additional Sessions Judge No. 2, Chittorgarh convicting the accused appellants u/S. 304 Part II/34 IPC and sentencing each of them of five years R.I, are confirmed; 2. but, the portion of that order dated 8.6.1999 passed by the learned Additional Sessions Judge No. 2, Chittorgarh imposing fine of Rs. 15, 000/-each on both the accused appellants is modified in the manner that the accused appellants shall pay fine of Rs. but, the portion of that order dated 8.6.1999 passed by the learned Additional Sessions Judge No. 2, Chittorgarh imposing fine of Rs. 15, 000/-each on both the accused appellants is modified in the manner that the accused appellants shall pay fine of Rs. 1, 000/-each instead of Rs. 15, 000/-and in default of payment of fine, each of them shall further undergo one month S.I. and the directions given by the learned Additional Sessions Judge with regard to payment of Rs. 30, 000/-to PW 15 Ratna also stand set aside.