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2000 DIGILAW 658 (RAJ)

Magha Ram v. State of Rajasthan

2000-05-22

D.N.JOSHI, N.N.MATHUR

body2000
JUDGMENT 1. - These two appeals are directed against the judgment dated 26th September, 1991 passed by the Sessions Judge, Merta convicting the appellants Megha Ram and Pabu Ram for offence under section 302/34 IPC and sentenced each of them to imprisonment for life and to pay a fine of Rs. 50/-, in default of payment to further undergo one month's rigorous imprisonment. The appellants have, also been convicted for offence under section 201 IPC and sentenced each of them to two years' rigorous imprisonment and to pay a fine of Rs. 50/- , in default of payment to further undergo one months' rigorous imprisonment. Both the sentences have been ordered to run concurrently. 2. The prosecution case is that on 4.4.1990 P.W. 1 Prabhu Ram submitted a written report at Police Station, Peelwa stating inter alia that his to son Mangla Ram aged 14-15 years had gone to the forest for grazing shegoats. In the evening shegots returned to the house, but Mangla Ram did not return. On enquiry, it revealed that Mangla Ram was seen with Megha Ram and Pabu Ram sitting on the Chabutara of Megha Ram. It also revealed that at about 3 P.M. while other people were returning with their shegoats, Mangle Ram told them that he will return later on. He (informer) further stated that he went to the forest in search of Mangla Ram. He also went to the field of Megha Ram but, he did not find his son Mangle, Megha Ram and Pabu Ram there. It also revealed that Pabu Ram and Megha Ram did not return to their houses during the night. He expressed his suspicion on Megha Ram and Pabu Ram. He also stated that he went in search of Mangla Ram with Teja Bavari. When they reached Karveri, they came to know that during the night Megha Ram was at the Gurdwara and he was all alone. Thereafter, he returned to the village and on advise of the villagers, he lodged the FIR. On this information, the police registered a case for offence under sections 302/34 and 201 IPC and proceeded with investigation. After usual investigation, police laid charge-sheet against the appellants for the aforesaid offences. 3. The appellants denied the charge and claimed trial. The prosecution in support of the case examined 12 witnesses and produced certain documents. The appellants in their statements Ws 313 Cr.PC. After usual investigation, police laid charge-sheet against the appellants for the aforesaid offences. 3. The appellants denied the charge and claimed trial. The prosecution in support of the case examined 12 witnesses and produced certain documents. The appellants in their statements Ws 313 Cr.PC. stated that the evidence appearing against them is false. The trial court relying on the testimony of PW 2 Gheesa Ram and PW 4 Bhar Mal alongwith the recovery of weapon of offence and some more circumstances, held the appellants guilty of murder of Mangla Ram. The learned trial Judge convicted both the appellants for offence under section 302/34 and 201 IPC and sentenced as noticed above. 4. We have heard Mr. Suresh Kumbhat, Amicus Curiae appearing for the appellants and Mr. A.R. Nikub, the Public Prosecutor. We have scanned the prosecution evidence carefully. 5. PW 10 Dr. Srichand has stated that he conducted the post mortem of 4 the dead body of deceased Mangla. He has proved the Post Mortem Report Ex.P/11. In his opinion, the cause of death was due to shock and cardio respiratory failure due to injury to spinal cord. He also stated that the injuries were anti mortem in nature. Thus, Mangla died of homicidal death. 6. PW 1 Prabhu Ram is the father of the deceased Mangla. He repeated what he has stated in the FIR. The evidence of this witness is only to this extent that his son deceased Mangla had gone in the forest for grazing of shegoats and he did not return thereafter. He went in search of Mangla. During the search, he came to know that deceased Mangla was seen in the company of appellants Megha Ram and Pabu Ram. On that basis he suspected that his son has been killed by the appellants. 7. PW 2 Gheesa Ram is the grand father of PW 4 Bhar Mal. His evidence is of the nature of hearsay. He has stated that Bhar Mal told him that during the day Mangla Ram, Megha Ram and Pabu Ram were in the field. Megha Ram and Pabu Ram took Mangla to the Jhoopa and tied his hands, legs and neck. He also stated that his grand son Bhar Mal told him that the appellants offered him a sum of Rs. 4/- and asked him to run away from the place. 8. Megha Ram and Pabu Ram took Mangla to the Jhoopa and tied his hands, legs and neck. He also stated that his grand son Bhar Mal told him that the appellants offered him a sum of Rs. 4/- and asked him to run away from the place. 8. PW 4 Bhaar Mal is a child witness aged 10 years. He stated that he was grazing shegoats alongwith Mangla in the field of Megha Ram. Pabu Ram and Megha Ram were sitting on the Chabutara. They called them for playing cards. Both of them got down from the Chabutara and proceeded towards to the Jhoopa. Thereafter, they called Mangla. After that Mangla, Pabu Ram and Megha Ram entered in the Jhoopa. Thereafter, Pabu Ram and Megha Ram asked him to go home otherwise his grand father will become unhappy. He left the place and stayed at some distance. From where, he went to the house. He also stated that Megha Ram offered him Rs. 4/-. This witness has been declared hostile by the prosecution. In the cross-examination by the Public Prosecutor he was confronted with his earlier statements and he denied to have given those statements. In our view, this child witness, who has been declared hostile by the prosecution itself, cannot be said to be a reliable witness. It is significant to note here that PW 2 Gheesa Ram, grand father of PW 4 Bhar Mal has stated that the incident was narrated by the PW 4 Bhar Mal. PW 1 Prabhu Ram has stated that he had met Gheesa Ram when he had gone in search of Mangla. If PW 4 Bhar Mal would have narrated the incident to PW 2 Gheesa Ram then Gheesa Ram would have definitely disclosed this fact to PW 1 Prabhu Ram when he was in search of his son. In view of this the reliance cannot be placed on the testimony of PW 1 Prabhu Ram, PW 2 Gheesa Ram and PW 4 Bhar Mal. 9. As regards the recovery of the dead body of Mangla is concerned, the same has not been relied upon by the trial court for the reason that the place from where the body has been recovered was already known to the police. 9. As regards the recovery of the dead body of Mangla is concerned, the same has not been relied upon by the trial court for the reason that the place from where the body has been recovered was already known to the police. PW 1 Prabhu Ram has stated in the FIR itself that he came to know that his son Mangla has been murdered and his dead body has been concealed near the Chabutara of Megha Ram. In our view, the learned trial Judge has rightly rejected the evidence of the recovery of the dead body at the instance of the accused persons. 10. The other incriminating circumstance against the appellant is the recovery of Phawra and Kulhari from the possession of the appellant Megha Ram and a blood stained gunny-bag and Juti from the possession of appellant Pabu Ram. As far as the accused Megha Ram is concerned, he gave information to PW 11 Gopi Kishan Gaur, SHO, Police Station, Peelwa with the respect to the place of concealment of Phawra and Kulhari. The information Ex.P/16 is extracted as follows " vkt fnukad 5-4-90 dks oDr 10 ,0,e0 ij tsj fgjklr eqyfte Jh es?kkjke us viuh LosPNk ls eq> vkbZ@vks xksihfd'ku xksM+ dh mijksDr vfHk;ksx dh rQ~rh'k ds flyflys esa vkyk, dRy o QkoM+s ds ckjs esa lwpuk nh fd fu'kknsgh dj ldrk gwWaA mijksDr lwpuk eqyfte es?kkjke dks iqu% i<+dj lqukbZ xbZ&lqu o le> dj lgh gksuk eku gLrk{kj fd,A ,l0Mh0 xksihfd'ku xksM+ ,l0,p0vks0 ih0,l0 ihyok A reading of the information shows that the accused has not shown the place of concealment of the Kulhari and Phawra. The name of weapons of offence, namely Kulhari has not been given. The SHO has not recorded the information in the language of the accused. He has simply recorded that the accused was prepared to recover weapon of offence and Phawra at his instance. In our view, this is hardly an information for the purpose of Section 27 of the Evidence Act. Further, there is no evidence to show that these articles were sealed on the spot and deposited in the Malkhana. In view of this, the evidence of recovery of Phawra and Kulhari have not been proved to by the prosecution and cannot be considered as an incriminating circumstance. Further, there is no evidence to show that these articles were sealed on the spot and deposited in the Malkhana. In view of this, the evidence of recovery of Phawra and Kulhari have not been proved to by the prosecution and cannot be considered as an incriminating circumstance. As far as the recovery of Bori and Juti is concerned, a information has been given by the accused Pabu Ram vide Ex.P/17. As far as the recovery of Juti is concerned. The same has not been relied upon by the trial court for the reason that the same has not been identified.As regards the evidence of recovery of blood stained clothes of the accused is concerned, the same has also not been relied upon by the trial court with the reason that clothes were washed off before its recovery. The FSL report is negative. In our view, the learned trial Judge has rightly discarded the evidence of recovery of the clothes of the accused. The learned trial Judge has incidently referred to the molds of two persons at the place of incident. There is no discussion on that aspect by the learned trial Judge as molds were not lifted by the Investigating Officer during the investigation. In view of this, this is also not a incriminating circumstance against the appellants. 11. In view of the aforesaid, both the appeals are allowed. The judgment of the Sessions Judge, Merta dated 26th September, 1991 convicting the appellants Megha Ram and Pabu Ram under sections 302/34 and 201 IPC is quashed and set-aside. Both the appellants namely Megha Ram and Pabu Ram are acquitted of offence under sections 302/34 and 201 IPC. They shall be released forthwith, if they are not required in any other case.Appeals allowed. *******