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Rajasthan High Court · body

2002 DIGILAW 750 (RAJ)

Babulal v. State of Rajasthan

2002-04-10

F.C.BANSAL, SHIV KUMAR SHARMA

body2002
Honble BANSAL, J.–Both the aforesaid appeals are directed against the judgment dated 21.10.1995 passed by the learned Addl. Sessions Judge, No.3, Kota, Camp at Ramganj Mandi whereby the appellant Babulal has been convicted for offence under Sections 302 IPC and sentenced to undergo imprisonment for life and a fine of Rs. 200/-, in default of payment of fine to further undergo three months rigorous imprisonment. Appeal No. 676/1995 has been preferred by the appellant through the Supdt. Jail and the appeal No. 598/1995 has been filed through his Advocate, therefore, they are being decided by a common judgment. (2). The brief facts of the prosecution case are that P.W. 1 Ramnarain submitted a written report Ex.P1 at Police Station, Suket, District Kota on May 7, 1994 at 3.30 p.m. It was inter- alia stated in the report that today i.e. May 7, 1994 at about 1.30 p.m. his nephew Lalchand s/o Dev Lal had gone to the house of his neighbour Babulal s/o. Ganga Ram Bheel to Iron his clothes, where Babulal fired a shot with his gun which hit on the head of Lalchand and caused injury to him. When Lalchand was being taken to hospital at Suket by him and other residents of his village he died on the way. Whereupon the dead body of Lalchand was taken to the house of Devlal, father of the deceased. It was also mentioned in the report that PW4 Guddi (sister of the deceased) had seen the incident. On the basis of this report Ex.P1 the SHO Police Station, Suket registered a formal first information report Ex.P3 for offence under Sec. 302 IPC against the appellant Babulal and investigation commenced. PW18 Bajrang Lal, IO reached at the spot and prepared a site plan Ex.P6. Inquest report Ex.P5 was also prepared and the dead body of the deceased was sent for post-mortem. Blood stained soil, some pallets and double barrel gun were seized from the place of occurrence and the I.O. also sealed these articles at the spot. Some hair of the head of the deceased which were found at the spot were also seized and sealed by the I.O. Photographs of the dead body were also taken by P.W. 9 Jagdish. Autopsy of the dead body of deceased Lalchand was conducted by a Medical Board of 3 Doctors consisting of Dr. K.K. Soni (PW. 12) and post-mortem report Ex.P3 was prepared. Autopsy of the dead body of deceased Lalchand was conducted by a Medical Board of 3 Doctors consisting of Dr. K.K. Soni (PW. 12) and post-mortem report Ex.P3 was prepared. Statements of witnesses under Section 161 Cr.P.C. were recorded. The appellant Baboolal was arrested on May 20, 1994 vide Ex.P.18. On completion of the investigation a charge-sheet was led against the appellant in the court of learned Addl. C.J.M. Ramganj Mandi, who committed the case to the Court of learned Sessions Judge, Kota. In due course, the case came up for trial before the learned Addl. Sessions Judge, No. 3, Kota Camp at Ramganj Mandi and the charge under Section 302 IPC was framed. The appellant denied the charge and claimed trial. (3). The prosecution examined as many as 18 witnesses in support of its case. In the statement recorded under Section 313 Cr.P.C. the appellant claimed innocence and stated that he was falsely implicated in the case. However, no evidence was produced by the appellant in his defence. (4). The learned trial Judge, after hearing the final submissions convicted and sentenced the appellant as indicated herein above. (5). We have heard the learned counsel for the parties and scanned, screened and scrutinised the material on record. There is no dispute that the deceased met with homicidal death and this fact is established by the medical evidence on record. Dr. K.K. Soni, P.W. 12 stated that on May 8, 1994 at 7.00 a.m. he alongwith other two members of the Medical Board conducted the post-mortem of the deceased and found following injuries on the dead body of the deceased. EXTERNAL INJURY 1. lacerated wound 8 x 4 x cavity deep extending from forehead to middle of scalp, margin irregular, area surrounding margin tattooed with black powder. Brain matter protruding through the wound. It is greyish in colour and small black particles scattered over it. Some clotted blood present. No exit wound found. INTERNAL INJURIES (i) frontal bone showing semi-circular hole. Both parietal bones are separated widely and (ii) brain congested; and (iii) part of brain protruding is lacerated particularly fronto-parietal region. (6). Dr. K.K. Soni, further stated that the injuries were ante- mortem in nature and caused by gun shot. In the opinion of the Medical Board, the cause of death was coma as a result of head injury. Both parietal bones are separated widely and (ii) brain congested; and (iii) part of brain protruding is lacerated particularly fronto-parietal region. (6). Dr. K.K. Soni, further stated that the injuries were ante- mortem in nature and caused by gun shot. In the opinion of the Medical Board, the cause of death was coma as a result of head injury. The post-mortem report (Ex.P3) was prepared and signed by the members of the Medical Board. (7). Learned counsel for the appellant did not challenge the testimony of Dr. K.K. Soni. In our opinion, the statement of Dr. K.K. Soni is trustworthy and it has been proved beyond reasonable doubt by the prosecution that deceased Lalchand met with the homicidal death. (8). The entire case rests upon the testimony of P.W. 4, Guddi, who was the only eye witness of the actual occurrence and she is the real sister of the deceased. In her statement she stated that on the fateful day the appellant Babulal took away the deceased to his house from the house of the deceased stating that they would iron the clothes. She further stated that she went to the house of the appellant for calling Lalchand for meals. When she entered into the house of the appellant, she saw the appellant standing having a gun in his hand. She further stated that the appellant fired his gun and inflicted injury on the head of the deceased. Thereafter, she became unconscious. Deceased Lalchand died later-on. (9). It is contended by the learned counsel for the appellant that the evidence of P.W. 4 Guddi who is the real sister of the deceased be not accepted as sufficient in the absence of corroboration from an independent evidence. He further contended that P.W. 4 Guddi is the sole eye witness of the occurrence and conviction cannot be recorded on her sole testimony it was also contended that the prosecution has failed to prove the motive of the appellant to commit the murder of Lalchand. (10). We have given our thoughtful consideration to the submissions made by the learned counsel for the appellant. The Apex Court in Hukam Singh & Ors. vs. State of Rajasthan (1), held ``that the Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are ``Interested Witnesses. (10). We have given our thoughtful consideration to the submissions made by the learned counsel for the appellant. The Apex Court in Hukam Singh & Ors. vs. State of Rajasthan (1), held ``that the Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are ``Interested Witnesses. The only premise for dubbing them as ``Interested Witnesses is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their bread earner to book. Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder Vide; Dalip Singh vs. State of Punjab (2), Gulichand vs. State of Rajasthan (3) and Dalvir Kaur vs. State of Punjab (4). This Court also expressed the same view in Sukhedo vs. State of Rajasthan (5). (11). We have carefully read the statement of P.W. 4 Guddi. She was cross-examined at length and nothing had been pointed out to discredit her testimony. Her presence on the spot is natural. There is no reason as to why she should falsely implicate the appellant Babulal. The testimony of this witness cannot be discarded only for the reason that she is the real sister of the deceased. We have no doubt in our mind that she is the witness of sterling worth and her testimony can be relied upon. So far as the next contention of the learned counsel for the appellant is concerned, in Amrik Singh vs. State of Rajasthan (6), the Apex Court held that ``it is settled law that the evidence has to be weighed and not counted. The testimony of a sole eye witness, whose testimony suffers from no infirmity whatsoever, can by itself form the basis of conviction. We have found Trilok Kumar (PW 2) to be a highly reliable witness whose testimony suffers from no blemish at all. His testimony has also received corroboration from the medical evidence and other evidence. In another Case, State of Haryana vs. Manoj Kumar (7), the Apex Court held that that Rohan (PW 14) is the sole eye witness of the fatal knock down by the accused. His testimony has also received corroboration from the medical evidence and other evidence. In another Case, State of Haryana vs. Manoj Kumar (7), the Apex Court held that that Rohan (PW 14) is the sole eye witness of the fatal knock down by the accused. But, that cannot be held to be an infirmity of the prosecution case. A conviction can be based and the verdict of the Court can rest even on the testimony of a sole witness, if the Court is fully satisfied that such witness is a truthful witness and his presence at the time of occurrence has been proved beyond reasonable doubt. (12). As already observed that P.W.4 Guddi is a reliable witness and so in view of the above pronouncements of the Apex Court, the appellant can be held guilty for the murder of deceased Lalchand. Moreover, the testimony of P.W.4 Guddi gets corroboration from the medical evidence. As discussed above, on post-mortem examination on the body of Lalchand, the Medical Board found a lacerated wound 8 x 4 cavity deep extending from forehead to middle of scalp and frontal bone. Semi circular hole and both parietal bones were separated widely and fractured. In his statement Dr. K.K. Soni, stated that the injuries were ante- mortem in nature and caused by fire arm. It was also stated by him that the cause of death was coma as a result of head injury. Dr. Soni, further stated that as soon as the deceased sustained injury he would have gone in coma and the injury was sufficient to cause death in the ordinary course of nature. Thus, the testimony of P.W. 4 Guddi has been corroborated by the medical evidence. (13). In addition to the above evidence the prosecution has also adduced circumstantial evidence against the appellant. It is not in dispute that the appellant P.W. 1 Ramnarain, who is the informant stated that on hearing the sound of fire he went to the house of the appellant and found the deceased lying inside the house and there was an injury on his head. He further stated that PW. 4 Guddi was crying and the appellant Babulal was also there. Lalchand was unconscious. He alongwith some other persons took Lalchand out of the house. When Lalchand was being taken to the Hospital, he died on the way. He further stated that PW. 4 Guddi was crying and the appellant Babulal was also there. Lalchand was unconscious. He alongwith some other persons took Lalchand out of the house. When Lalchand was being taken to the Hospital, he died on the way. It was also stated by him that Guddi told him that Babulal had killed Lalchand by fire with the gun. It was also stated that the appellant and his father both were residing in the same house. He further stated that he went to the Police Station, Suket and submitted a written report Ex.P.1. It is true that in his examination-in-chief P.W.1 Ramnarain stated that when he reached at the house of the appellant he found the appellant having a gun in his hand whereas in cross-examination he stated that the gun was lying there. In our opinion, because of this minor contradiction rest of his statement cannot be termed as false and un-trustworthy. PW.2 Ramgopal stated that on hearing the sound of fire he went to the house of Gangaram (Father of the appellant) where he found deceased Lalchand in injured condition. Appellant Babulal also was present there and a gun was lying on spot. He has further stated that Guddi and Ramnarain were also there. (14). Having perused the statement of PW.1 Ramnarain and Ramgopal PW.2, we are of the opinion that their testimony is believable. From the testimony of these two witnesses it is proved that just after the incident when Ramnarain and Ramgopal reached at the spot they found the appellant and Guddi there. It was also found by them that deceased Lalchand was lying there in injured condition having an injury on his head. Had the appellant not inflicted an injury on the head of the deceased by gun shot, he would have told Ramnarain and Ramgopal that somebody-else had fired and inflicted injury on the head of the deceased. It may be stated here that a suggestion was given to PW.4 Guddi in her cross-examination that Mangilal fired a gun shot and killed Lalchand but to prove this fact no evidence was produced by the appellant in his defence. In his examination under Sec. 313 Cr.P.C. also the appellant did not state that Mangilal had killed Lalchand. It was also not the case of the appellant that Lalchand sustained fatal injury accidently. In his examination under Sec. 313 Cr.P.C. also the appellant did not state that Mangilal had killed Lalchand. It was also not the case of the appellant that Lalchand sustained fatal injury accidently. Thus these circumstances also corroborate the version of PW.4 Guddi. (15). In so far as the last contention of the learned counsel for the appellant is concerned, the Apex Court in Rajesh Govind Jagesha vs. State of Maharashtra (8), held that ``the motive in a criminal case based upon ocular testimony of witnesses is not at all relevant. This Court in Gurucharan Singh and another vs. State of Punjab (9), held that ``but it has repeatedly been pointed out by this Court that the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance. Again in Datar Singh vs. The State of Punjab (10), this Court reiterated that mere absence of a strong motive for committing the crime cannot be of any assistance to the accused if the offence could be proved by evidence. Where the direct evidence regarding the commission of offence is worthy of credence and can be believed, the question of motive becomes, more or less, academic, ``motive may be relevant in a case based upon circumstantial evidence only, being one of the circumstance. This Court in Ummed Singh vs. The State of Rajasthan (11), has also expressed the same view. (16). In the instant case the ocular testimony of P.W.4 Guddi is available on record and so merely on the ground that the prosecution has failed to prove the motive of the appellant to commit the murder of deceased Lalchand, it cannot be held that the prosecution has failed to prove its case against the appellant. (17). It has come on record that the gun from which the shot was fired belonged to Mangilal and not to the appellant. But it is clear from the prosecution evidence that the appellants father had taken the gun on loan from Mangilal few days before the incident and it was seen in the house of the appellant where his father was also residing. (18). But it is clear from the prosecution evidence that the appellants father had taken the gun on loan from Mangilal few days before the incident and it was seen in the house of the appellant where his father was also residing. (18). Learned counsel for the appellant cited Mohammad Siddiq vs. The Crown (12), wherein it has been held that it is the primary principle of criminal law that the onus of proving the general issue i.e. every thing essential to the establishment of the charge against the accused, rests upon the prosecution and never shifts, and it lies upon the prosecution to establish, on the whole case, and beyond reasonable doubt, the guilt of the accused. Before the accused can be convicted under Sec. 302 Penal Code, it is the duty of the prosecution to prove such intention or knowledge as is mentioned under Sec. 300 Penal Code. (19). In the instant case on hand, in our opinion, the prosecution has succeeded in proving its case against the appellant that he had committed murder of deceased Lalchand. The trial Court very carefully has gone through the prosecution evidence and we have also undertaken the same exercise and in our opinion, the trial Court has committed no error whatsoever, in coming to the conclusion that the appellant had committed the alleged offence. (20). The trial Court has found the appellant guilty for offence under Sec. 302 IPC as the appellant had caused an injury by a gun shot on the head of the deceased which is a vital part of the body. Because of the injury sustained by deceased Lalchand, he died within a few hours on the same day. In these circumstances, it can safely be inferred that the appellant had intended to kill Lalchand and cause such injury which was sufficient in the ordinary course of natural to cause death. In our opinion, the appellant has rightly been convicted for offence under Sec. 302 IPC by the trial Court. (21). For the reasons stated above, we agree with the view taken by the trial Court that the prosecution has succeeded in proving its case against the appellant. (22). Consequently both the appeals are dismissed. The conviction and sentence awarded to the appellant is maintained.