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2001 DIGILAW 770 (RAJ)

Usman Khan v. State of Rajasthan

2001-05-03

JAGAT SINGH, V.G.PALSHIKAR

body2001
JUDGMENT 1. - This appeal is directed against the order dated 9.2.1999 passed by the learned Special Judge for SC/ST (Prevention of Atrocities) Act Cases and Sessions Judge, Hanumangarh in sessions case No. 11/97 whereby the learned Judge has convicted the accused under sections 302, 452 and 333 I.P.C. and sentenced him to under go for life imprisonment. 2. With the assistance of the learned counsel for the appellant and the learned Public prosecutor for the State, We have scrutinised the record and re appreciated the evidence on record. 3. The prosecution story as it emerges from re-appreciation of the evidence is that; P.W.1 lodged an F.I.R. in the police station on 1.9.1996 stating that he along with another Forest Guard had earlier confiscated certain illegal cut wood which was cut unauthorisdely by Usman Khan. Having come to know that the illegal cut wood has been seized, Usman armed with a 'Sella' (spear) accompanied by 3-4 persons came to the place where the Forest Guard were sitting and assaulted Ram Khiladi with the 'Sella', the first blow landed on the thigh and Ram Khiladi fell to the ground, even thereafter, two more blows were given by the accused as a result of which victim became unconscious and was admitted to the hospital. On the basis of this F.I.R., case under section 307 I.P.C. was registered. However, four days after the incident, the victim succumbed to the injuries and died. The opinion of Doctor is that he died because of acute peritonitis, the crime was therefore altered to one under section 302 and the accused was prosecuted for the offences as aforesaid. The prosecution has examined as many as twenty one witnesses to prove its case. The learned trial Judge on appreciation of this evidence, came to the conclusion of guilt and convicted the accused u/s 302 of the Indian Penal Code sentencing him to suffer imprisonment for life. Feeling aggrieved by the order of conviction and sentence, the appeal is preferred by the accused. The learned Judge however, gave benefit of doubt to three other accused and acquitted them, so the present appeal is on behalf of sole convict Usman Khan. 4. PW. 1 is Hans Raj who, at the relevant time in August, 1996, was working as a Forest Guard along with the victim Ram Khiladi. He has narrated the basic prosecution story with enough clarity and details. 4. PW. 1 is Hans Raj who, at the relevant time in August, 1996, was working as a Forest Guard along with the victim Ram Khiladi. He has narrated the basic prosecution story with enough clarity and details. He stated that on 31 August, 1996 at about 5.00 in the afternoon, the witness along with victim Ram Khiladi was on duty and they saw a tractor loaded with illegally cut wood and they therefore, accosted person accompanied the tractor, whom the witness has identified in the court. They stated that the tractor and the wood belonged to Usman Khan and they then ran away with the tractor along with wood at the site. The witness thereafter, made a report of this incident to the higher authorities. Next day i.e. 1st Sept., 1996 at about 7 o'clock, the accused Usman Khan with some others came to the residence of Ram Khiladi and on seeing Ram khiladi, Usman Khan hit him with 'Sella' on the thigh asking him as to why they stopped his wood felling Ram Khiladi started running away then Ram Khiladi again hit him on the right thigh. He fell down and was again hit by the accused. Hearing shouts people around gathered.and the accused ran away. The witness then states that with the help of the villagers, the injured Ram Khiladi was taken to the hospital in Hanumangarh town and first information report was lodged by the witness, he proceeds to prove certain documents executed in his presence by the police. During the course of investigation, the witness has been thoroughly cross-examined and he has satisfactorily answered the questions put to him by the counsel for the defence. In the cross-examination, there are certain questions, in answer to which, some discrepancies can be spelt out. However, it is not such as can be considered discrediting the veracity of the statement made by the witness and the witness has very correctly answered; " eSa nksuksa ckrksa dks ,d gh le>rk gwWa esjh le> esa ;s nksuksa ckrksa esa dksbZ vUrj ugha gSA " 5. RW.2 Baiu Ram is the neighbour of the deceased Ram Khiladi and RW.1. RW.2 Baiu Ram is the neighbour of the deceased Ram Khiladi and RW.1. He has stated that he came on the scene of offence after hearing the commotion and was stunned to find Ram Khiladi bleeding with injuries, he however, stated that he did not see the accused on the spot, therefore, permission was sought for by the prosecution to declare the witness hostile and permission was granted. In any event, he has not claimed to be an eye-witness and has arrived on the scene of offence after the assault took place, his evidence is inconsequential. 6. Similarly is the case of RW.3 Om Prakash. He however, has said that when he came out on hearing the commotion, he saw the accused Usman Khan going from the house of Ram Khiladi towards the lane near about. He also has stated that Usman Khan had in his hand some long weapon, he however, has stated that he was unable to know what the weapon was. This witness is also declared hostile. Possibility apart, the witness has also come on the scene after the assault took place and he did see the accused leaving the scene of offence and has deposed that the accused was armed to that extent. He thus, corroborates the testimony of RW.1. 7. RW.4 Lal Chand is declared hostile as he states that he saw nothing. He has resiled from his earlier statement that he had seen Usman Khan assaulting Ram Khiladi. In view of the fact that the witness has totally denied seeing anything, his evidence will have to be ignored. 8. RW.5 has also been declared hostile. He has however, stated that he went on the scene of offence, he saw victim lying in blood pool and took him to the hospital in a jeep. His evidence in any case becomes inconsequential as he has never stated that he saw Usman Khan assaulting the deceased. RW.6 Arjun Ram has stated that he and Bhoop Singh, RW.5 took the deceased to hospital. He is declared hostile as he resiled from his earlier statement in which he said that he saw the accused running away. 9. RW.7 Daya Ram is also declared hostile as he saw nothing when he reached the place of occurrence. He saw Ram Khiladi severely injured and about 50-60 people standing around. He is declared hostile as he resiled from his earlier statement in which he said that he saw the accused running away. 9. RW.7 Daya Ram is also declared hostile as he saw nothing when he reached the place of occurrence. He saw Ram Khiladi severely injured and about 50-60 people standing around. He resiled from his earlier statements that he saw the accused running away. Identically is the statement of Chandra Bhan RW.8, RW.9 Krishna Kumar is also declared hostile, however, he states that he phoned the police informing them about the incident. RW.10 Sukh Ram has denied that he had let out his tractor or even his tractor bearing No. RND 9683 to anyone. He is also declared hostile. In fact his evidence is inconsequential as the tractor itself, ownership or user has nothing to do of the offence committed. 10. RW.11 Khayali Ram is a witness to the recovery of 'Sella' from Chak 11 RWD, it was put in cloth bag and was duly sealed in presence of the witness. He has stated that the steal part of the 'Sella' was about 6 inches long and was attached to about 5 fit stick. He thus, proves the recovery of 'Sella' which was done in presence of the accused Usman Khan. He has also stated that the 'Sella' was recovered and given to police by Usman Khan himself. He has withstood the cross-examination. 11. RW.12 is Doctor Rajendra Kumar Gupta who examined the victim on 1.9.1996. He has given a clear description of the injuries caused to the victim and has proceeded to state that on 5th September, 1996 in pursuance to Ex. P/22, he conducted the post mortem of the dead body of Ram Khiladi. He proves the post mortem and has stated that death occurred due to acute peritonitis. The deceased was operated by Doctor Madan Lal who unfortunately has not been examined by the prosecution. In any event, the testimony of Dr. Rajendra Kumar RW.12 proves beyond doubt that the death of Ram Khiladi was homicidal. PW. 13 Mohan Singh proves the panchnama of the dead body and he also proves the spot panchnama and has given good description of place of offence. P.W.14 Jagdish is another witness to the recovery of 'Sella'. In any event, the testimony of Dr. Rajendra Kumar RW.12 proves beyond doubt that the death of Ram Khiladi was homicidal. PW. 13 Mohan Singh proves the panchnama of the dead body and he also proves the spot panchnama and has given good description of place of offence. P.W.14 Jagdish is another witness to the recovery of 'Sella'. RW.15 Ram Sharan Meena is another witness to the panchnama of the dead body, P.W. 16 Lala Ram who is Malkhana Incharge has sent certain articles for examination to F.S.L., Jaipur. 12. RW.17 Rajveer Singh is the person who took the articles to F.S.L. Jaipur. P.W.18 Ridmast Khan is the person who recorded the F.I.R. RW.19 Jay Singh was posted as A.S.I., at that time, he countersigned the F.i.R. RW.20 Sadhu Singh is the Investigating Officer who has deposed to the title of investigation conducted by him. PW. 21 is another Constable employed in the Malkhana. However, evidence of these witnesses is .not very material for deciding the question raised in this appeal by the learned counsel for the appellant. The learned counsel submitted that conviction of the accused in face of this witness under section 302 is not sustainable, it 'was the claim of the counsel that taking into consideration the several discrepancies in the evidence, the lapse in the matter of custody of the weapon of offence, the fact that several witnesses have been declared hostile and have failed to support the prosecution story as it was initially canvassed, it is a case of insufficient evidence requiring acquittal in favour of the accused. Supporting the prosecution and maintaining that the order of conviction is liable to be affirmed, the learned Public Prosecutor submitted that the contradictions, omissions etc. pointed out by the learned counsel for the defence are not such as would require any interference with the order. Relying on evidence of RW.1 Hansraj and other witnesses, he has claimed that the prosecution has established beyond reasonable doubt the complicity of the accused in commission of the crime and consequently, the order of conviction is proper. 13. We have re-appreciated the evidence as aforesaid and have carefully scrutinised the submissions made at the bar. We are convinced that the learned trial Judge was absolutely right in accepting the prosecution and coming to the conclusion of guilt. 13. We have re-appreciated the evidence as aforesaid and have carefully scrutinised the submissions made at the bar. We are convinced that the learned trial Judge was absolutely right in accepting the prosecution and coming to the conclusion of guilt. However, ever if the entire prosecution evidence is accepted, conviction under section 302 I.P.C. is not possible in the present case. We find ourselves unable to agree with the trial Judge when he comes to the conclusion of murder when admittedly the victim died after four days due to peritonitis and the Doctor has opined that the death is caused due to acute peritonitis. It is no doubt true that death occurred due to the injuries caused by the accused, yet it cannot be said that the injuries were caused by the accused with the intention of committing murder of the deceased. 14. The accused was enraged on being stopped in his illegal wood felling and in that passion, assaulted the victim. All the three injuries caused by the accused are below waist line, two of them are in the thigh. A person who intents to kill another, does not cause injuries on the lower part of the body or at least aims for the vital parts which are above the waist line, it is also obvious from the medical in which the accused caused the injuries though he knew that the assault may result in causing death of the victim. It is a clear case of homicidal death not amounting to murder. Reliance was placed by the learned counsel in a similar case arising from Rajasthan reported in 1998 SCC (Cri) 898 where the death was due to acute peritonitis which could have been due to surgical complications. The facts are almost identical in the facts of this case, where the medical evidence shows that the death has been caused due to acute peritonitis which could be. caused due to surgical complications and the prosecution has failed to examine the surgeon who did it and whose deposition could have over-ruled, the possibility of surgical complication not being present in this case. There was absolutely no intention to cause death in the circumstances. Following the decision of the Supreme Court in above referred case, we are of the view that the order of conviction under section 302 I.P.C. cannot be maintained, the same is therefore, set aside. There was absolutely no intention to cause death in the circumstances. Following the decision of the Supreme Court in above referred case, we are of the view that the order of conviction under section 302 I.P.C. cannot be maintained, the same is therefore, set aside. Instead the accused is convicted under section 304 part II and is sentenced to suffer rigorous imprisonment for a period of seven years. 15. In the result, the appeal succeeds partly and is partly allowed as aforesaid. The order of conviction and sentence under section 302 I.P.C. is set aside. Instead the accused is convicted under section 304 part II and sentenced to suffer rigorous imprisonment for seven years. *******