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2004 DIGILAW 487 (RAJ)

Dhan Raj v. State of Rajasthan

2004-04-01

N.N.MATHUR, SUNIL KUMAR GARG

body2004
Honble GARG, J.–This appeal has been filed by the accused appellant against the judgment and order dated 28.8.1999 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh in Sessions Case No. 15/99 (26/98) by which he convicted the accused appellant for the offence under sections 302 and 341 IPC and sentenced him in the following manner:- Name of appellant convicted u/s sentence awarded Dhan Raj 302 IPC Imprisonment for life & to pay a fine of Rs. 1000 in default of payment of fine, to further undergo six months RI. 341 IPC One month SI. Both the substantive sentences were ordered to run concurrently. (2). It may be stated here that by the same judgment and order, the learned trial Judge has acquitted three accused, namely, Rajkumar, Kalawati and Sarika of all the charges framed against them i.e. for the offence under sections 341, 302 alternatively 302/34 IPC. However, the state has not filed any appeal against their acquittal. (3). The facts giving rise to this appeal, in short, are as follows:- On 9.4.1997 at about 6.15 PM, one Brijlal (since he died during the pendency of the trial, therefore, he was not produced by the prosecution) lodged a written report Ex.P/19 before the Police Station Goluwala District Hanumangarh stating inter-alia that at about 5 or 5-1/4 PM when he was in his house, he heard cries that near the house of Jugal, fight had taken place with Om Vishnu (hereinafter referred to as ``the deceased) son of Brijlal and upon this, he rushed towards the house of Jugal and found that the deceased was lying near the gate of the house of the accused appellant and blood was coming out from his head and at that time, he also found that PW11 Naraini Devi, wife of Jugal, PW12 Asha, daughter of Jugal and PW10 Richhpal were also standing there. It was further stated in the report Ex.P/19 by Brijlal that PW11 Naraini Devi had put the cloth on the head of the deceased and at that time, deceased was unconscious and he enquired from PW10 Richhpal as to who had caused injuries to his son deceased and upon this, PW10 Richhpal told him that deceased and he (PW10 Richhpal) came by road and he (PW10 Richhpal) was going towards his dhani and deceased was going towards his house and as soon as deceased reached near the lane in front of the house of the accused appellant, the accused appellant alongwith other three accused, namely, Rajkumar, son of accused appellant, Sarika daughter of accused appellant and Kalawati wife of accused appellant (who have been acquitted by the learned trial Judge) appeared on the scene and they stopped the deceased and at that time, the accused appellant was armed with Gandasi and he gave Gandasi blow on the head of the deceased, as a result of which, deceased fell down on the ground and became unconscious and further, the accused Rajkumar (who has been acquitted by the learned trial Judge) was armed with lathi and he gave lathi blow to the deceased and other two accused, namely, Sarika and Kalawati (who have been acquitted by the learned trial Judge) also beat deceased and thereafter, they had run away from the scene treating the deceased as dead. It was further stated in the report Ex.P/19 by Brijlal that thereafter, he, PW10 Richhpal and PW1 Richhpal son of Laluram took the deceased to the Government Hospital, Goluwala in a Jeep where the doctor told that deceased had died. It was further stated in the report Ex.P/19 by Brijlal that the accused appellant was having dispute over some land and cases were pending in the Court, therefore, because of that enmity, deceased was murdered by the accused appellant and his family members. On this report Ex.P/19, police registered the case and chalked out regular FIR Ex.P/20 and started investigation. During investigation, post mortem of the dead body of the deceased was got conducted by PW3 Dr. S.P. Singh and the post mortem report is Ex.P/2 where it was opined that the deceased died due to head injuries, haemorrhage and shock leading to cardio respirators arrest. During investigation, post mortem of the dead body of the deceased was got conducted by PW3 Dr. S.P. Singh and the post mortem report is Ex.P/2 where it was opined that the deceased died due to head injuries, haemorrhage and shock leading to cardio respirators arrest. The accused appellant was got arrested by PW15 Mahesh Gopal on 9.7.1997 through arrest memo Ex.P/24 and he gave information Ex.P/26 that he could get recovered a gandasi and in pursuance of that information, a gandasi stained with blood was got recovered and seized through fard Ex.P/11 in presence of PW7 Babulal and Jagdev Singh. The site plan Ex.P/15 and site description memo Ex.P/15A were also got prepared by PW13 Tara Chand and through fard Ex.P/18 one blood stained chaddar, by which the head of the deceased was tied, was also seized by PW13 Tara Chand and all the seized articles were sent to FSL and the FSL report is Ex.P/28. After usual investigation, police submitted challan against the accused appellant and three other accused, namely, Rajkumar, Kalawati and Sarika (who have been acquitted by the learned trial Judge) in the court of Magistrate and from where the case was committed to the Court of Session. On 16.4.1998, the learned Sessions Judge Hanumangarh framed charges for the offence under sections 341, 302 or alternatively 302/34 IPC against the accused appellant and other three accused Rajkumar, Kalawati and Sarika (who were acquitted by the learned trial Judge). The charges were read over and explained to the accused persons. They denied the charges and claimed trial. During the course of trial, the prosecution got examined as many as 15 witnesses and exhibited several documents. Thereafter, statements of the accused persons under section 313 Cr.P.C. were recorded. No evidence was led in defence by the accused persons. After conclusion of trial, the learned Addl. Sessions Judge No. 1, Hanumangarh through impugned judgment and order dated 28.8.1999 while acquitting three accused Rajkumar, Kalawati and Sarika, convicted the present accused appellant for the offence under sections 302 and 341 IPC and sentenced him in the manner as indicated above holding inter-alia:- (i) That deceased died because of two sharp edged injuries, which he received on his head. (ii) That author of the report Ex.P/19, namely, Brijlal was not produced because he had died, but from the statement of PW13 Tarachand, who was at that time SHO, Police Station Goluwala, the fact that Brijlal submitted the report Ex.P/19 in the Police Station Goluwala before PW13 Tarachand, is established. (iii) That there were three eye witnesses of the alleged incident, namely, PW10 Richhpal, PW11 Naraini Devi and PW12 Asha. (iv) That the principle ``Falsus in uno Falsus in Omnibus is not applicable in India and therefore, the statements of the aforesaid three eye witnesses, namely, PW10 Richhpal, PW11 Naraini Devi and PW12 Asha were not accepted by the learned trial Judge so far as the other three accused Rajkumar, Kalawati and Sarika were concerned, but their statements were accepted so far as the present accused appellant was concerned. (v) That he believed the statements of the aforesaid three eye witnesses PW10 Richhpal, PW11 Naraini Devi and PW12 Asha on the point that a gandasi blow was given by the accused appellant on the head of the deceased. (vi) That no doubt PW3 Dr. S.P. Singh has observed that the injuries No. 1 and 2 mentioned in the post mortem report Ex.P/2 of deceased were sufficient in the ordinary course of nature to cause death and no doubt, in his cross-examination, he had admitted that these two injuries on the head of the deceased should have been caused by different weapons, but the fact that these two injuries could have been caused by Gandasi could not be ruled out. (vii) That the fact that there was enmity between the complainant party and the accused party is well established and thus, there was motive on the part of the accused appellant to cause murder of the deceased. (viii) That he sought corroboration from the so-called recovery of Gandasi at the instance of accused appellant, as human blood was found on it, which is evident from the FSL report Ex.P/28. (viii) That he sought corroboration from the so-called recovery of Gandasi at the instance of accused appellant, as human blood was found on it, which is evident from the FSL report Ex.P/28. (ix) That so far as the case of the prosecution as is evident in the statements of PW10 Richhpal, PW11 Naraini Devi and PW12 Asha that another accused Rajkumar also gave a kasia blow on the head of the deceased was not found proved by the learned trial Judge as in the report Ex.P/19, it was categorically mentioned that the accused Rajkumar was having lathi in his hand and even in the police statements, the aforesaid three eye witnesses have stated that the accused Rajkumar was having lathi in his hand, but in Court statements, the learned trial Judge found that these three eye witnesses had improved their statements by stating that the accused Rajkumar was having kasia and therefore, in view of these contradictions, the learned trial Judge came to the conclusion that the prosecution has failed to prove beyond reasonable doubt that another sharp edged injury on the head of the deceased was caused by accused Rajkumar as on the head of the deceased there was no injury of lathi. (x) That so far as three eye witnesses PW10 Richhpal, PW11 Naraini Devi and PW12 Asha are concerned, they are not witnesses of sterling worth in relation to accused Rajkumar. (xi) That similarly, the case of the prosecution in respect of accused Sarika and Kalawati was not found proved by the learned trial Judge. Aggrieved from the said judgment and order dated 28.8.1999 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh, the accused appellant has preferred this appeal. (4). (xi) That similarly, the case of the prosecution in respect of accused Sarika and Kalawati was not found proved by the learned trial Judge. Aggrieved from the said judgment and order dated 28.8.1999 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh, the accused appellant has preferred this appeal. (4). In this appeal, the following submissions have been made by the learned counsel for the accused appellant:- (i) That since the learned trial Judge acquitted co-accused Rajkumar in this case on the ground that another injury on the head of the deceased was caused by sharp edged weapon and not by lathi, therefore, the statements of three eye witnesses PW10 Richhpal, PW11 Naraini Devi and PW12 Asha should have not been believed by the learned trial Judge so far as the present accused appellant is concerned and when other co-accused Rajkumar, Sarika and Kalawati have been acquitted by the learned trial Judge, therefore, on the same evidence, the present accused appellant should also have been acquitted. (ii) That once it is established that deceased received two injuries on his head by sharp edged weapon and one was attributed to the accused appellant and for another, it has not been established, who caused that blow, therefore, the accused appellant should have not been convicted and alternatively, it was further submitted that since single blow was given by the accused appellant on the head of the deceased and there was no repetition of blow by the accused appellant as second head injury was not caused by the accused appellant, therefore, it cannot be said that the accused appellant was having intention to cause murder of the deceased and thus, offence under section 302 IPC should have not been found proved against the accused appellant and at the most, the act of the accused appellant does not travel beyond either Section 326 IPC or 304 Part-II IPC. (5). On the other hand, the learned Public Prosecutor and the learned counsel for the complainant have supported the impugned judgment and order. (6). We have heard the learned counsel for the accused appellant, learned Public Prosecutor and the learned counsel for the complainant and gone through the record of the case. (7). Before proceeding further, first medical evidence of this case has to be seen. (8). PW3 Dr. (6). We have heard the learned counsel for the accused appellant, learned Public Prosecutor and the learned counsel for the complainant and gone through the record of the case. (7). Before proceeding further, first medical evidence of this case has to be seen. (8). PW3 Dr. S.P. Singh in his statement recorded in Court has stated that on 10.4.1997 he was Medical Officer in the Primary Health Centre, Goluwala and on that day, he conducted the post mortem of the dead body of the deceased and found the following injuries on his body:- (1) Incised wound ms 12.02 x 2.0 x 8.0 cm on upper part of occipit bone extending laterally on both sides of parietal bones and Lt. temporal bone (an occipito parito-temporal region of scalp and skull) caused by sharp weapon and grievous nature is a fatal injury. It leads to cut the underneath scalp, bones and brain matter, meninges and vessels of the parts. These parts are full of clotted blood. (2) Incised wound ms 4.5 x 2.0 x 2.0 cm, just above and anterior to injury No. 1 on scalp is also caused by sharp weapon and grievous in nature, is resulted into fracture of underneath bones. Both these injuries are ante mortem in nature and about 1 hr. duration, when patient brought to hospital on 9.4.97 at 6.05 PM when brought to hospital, patient was already dead. He has further stated that the above injuries received by the deceased were sufficient in the ordinary course of nature to cause death. He has further stated that the deceased died due to head injuries, haemorrhage and shock leading to cardio respirators arrest. In cross examination, he has admitted that the above two head injuries should have been caused by different weapon and not by one weapon. He has proved the post mortem report Ex.P/2. (9). From the statement of PW3 Dr. S.P. Singh, the following facts have emerged:- (i) That deceased received two sharp edged injuries on his head. (ii) That both the head injuries were sufficient in the ordinary course of nature to cause death, (iii) That deceased died because of head injuries, haemorrhage and shock leading to cardio respirators arrest. (iv) That the aforesaid two head injuries should have been caused by different weapon and not by one weapon. (ii) That both the head injuries were sufficient in the ordinary course of nature to cause death, (iii) That deceased died because of head injuries, haemorrhage and shock leading to cardio respirators arrest. (iv) That the aforesaid two head injuries should have been caused by different weapon and not by one weapon. Thus, it can easily be said that death of the deceased was not natural one and it was homicidal. (10). So far as the fact that there was enmity between the deceased and the accused appellant is concerned, that fact is established from the report Ex.P/19, which was lodged by Brijlal, father of the deceased and from the statements of prosecution witnesses and the learned trial Judge has given cogent findings on this aspect. (11). In this respect, it may be stated here that enmity between the accused and the victim is a double-edged weapon. It may provide incentive for the crime and it may also provide reasons for falsely implicating the accused. (12). In this case, there are three eye witnesses, namely, PW10 Richhpal, PW11 Naraini Devi and PW12 Asha and their names are found in the report Ex.P/19, which was lodged by Brijlal. (13). PW10 Richhpal in his statement recorded in Court has stated that at the time of alleged incident, the accused appellant was having a gandasi and the accused Rajkumar (who was acquitted by the learned trial Judge) was armed with kasia and both accused caused one-one blow each on the head of the deceased. (14). Similar is the statements of other eye witnesses PW11 Naraini Devi and PW12 Asha. (15). Thus, from the statements of eye witnesses PW10 Richhpal, PW11 Naraini Devi and PW12 Asha, the fact that the accused appellant gave one single gandasi blow on the head of the deceased is very well established and therefore, the findings of the learned trial Judge in this respect are liable to be confirmed one. (16). (15). Thus, from the statements of eye witnesses PW10 Richhpal, PW11 Naraini Devi and PW12 Asha, the fact that the accused appellant gave one single gandasi blow on the head of the deceased is very well established and therefore, the findings of the learned trial Judge in this respect are liable to be confirmed one. (16). However, at one place, the learned trial Judge has also observed that possibility that both the head injuries should have been caused by gandasi by the accused appellant cannot be ruled out, but in our considered opinion, this aspect of reasoning cannot be accepted because of the following reasons:- (i) That the eye witnesses PW10 Richhpal, PW11 Naraini Devi and PW12 Asha have categorically stated that the accused appellant gave only one gandasi blow on the head of the deceased. (ii) That PW3 Dr. S.P. Singh has also categorically stated that both the injuries on the head of the deceased could have not been caused by the same weapon, but by different weapon. Thus, to say that both the injuries on the head of the deceased were caused by the accused appellant cannot be accepted. (17). From the medical evidence, it is also proved that deceased had another head injury by sharp edged weapon, but who caused that injury in this case has not been established by the prosecution beyond reasonable doubt as the learned trial Judge gave benefit of doubt to the accused Rajkumar for that injury. In this respect, it may be stated here that the accused Rajkumar was acquitted by the learned trial Judge because of the simple reason that in the report Ex.P/19 as well as in their police statements, all the three eye witnesses PW10 Richhpal, PW11 Naraini Devi and PW12 Asha have categorically stated that the accused Rajkumar was armed with lathi while injuries on the head of the deceased were caused by sharp edged weapon and because of these contradictions, the learned trial Judge did not believe the statements of these three eye witnesses so far as the accused Rajkumar is concerned. (18). Before proceeding further, it may be stated here that in a murder trial where the accused is charged with commission of an offence punishable with death or of life imprisonment, the court must be careful, circumspect and cautious. (18). Before proceeding further, it may be stated here that in a murder trial where the accused is charged with commission of an offence punishable with death or of life imprisonment, the court must be careful, circumspect and cautious. The court should scrupulously examine and consider all the relevant and material circumstances before recording a conviction. (19). There is no uniform method of arriving at correct conclusion upon veracity of versions placed before the court which can be applied in all cases. It is the duty of the court to attempt to separate the chaff from the grain in every case. The court cannot abandon this attempt on the ground that the case is baffling unless the evidence is so confusing or conflicting that the process cannot reasonably be carried out. (20). The principle of falsus in a uno falsus in omnibus does not apply to criminal trials and it is the duty of the court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds. (21). In our considered opinion, since the principle ``falsus in uno falsus in omnibus is not applicable in India, therefore, some part of the statement of a witness can be believed and other part of his statement can be disbelieved and thus, in these circumstances, the findings of the learned trial Judge disbelieving some part of statements of eye witnesses PW10 Richhpal, PW11 Naraini Devi and PW12 Asha in respect of accused Rajkumar, Sarika and Kalawati cannot be said to be erroneous one. Acquittal of co-accused and its effect (22). The learned counsel for the accused appellant has argued that since co-accused Rajkumar, Sarika and Kalawati have been acquitted by the learned trial Judge, therefore, on the same evidence, the present accused appellant should also have been acquitted. (23). Before proceeding further, the principle if some accused are acquitted and some are convicted in one trial may be enumerated here:- (i) That acquittal of some of the accused does not necessarily result in acquittal of the rest. (ii) That there is no rule of law that if the court acquits certain accused on the evidence of a witness finding it to be open to some doubt with regard to them for definite reasons, other accused against whom there is positive evidence must also be acquitted. (ii) That there is no rule of law that if the court acquits certain accused on the evidence of a witness finding it to be open to some doubt with regard to them for definite reasons, other accused against whom there is positive evidence must also be acquitted. (iii) That acquittal of some of the accused, however, calls for a closer scrutiny of the evidence of prosecution witnesses and the court must feel assured that it is safe to rely upon evidence of the witnesses for conviction of the remaining accused. (iv) That where the evidence of the accused is not severable from the acquitted accused the entire prosecution must be discarded. Their acquittal does not in any way militate against the conviction of the other accused whose complicity in the crime has been amply established. (v) That it is well settled that the mere fact that out of many accused some are acquitted is not sufficient to entitle rejection of the entire prosecution case and for that, the decision of the Honble Supreme Court in Molu vs. State of Haryana ( AIR 1976 SC 2499 ) may be referred to. (vi) That the evil of acquitting a guilty person light- heartedly as a learned author Glanville Williams in ``Proof of Guilt has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated ``persons and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. (24). Thus, in view of the above principle, the argument that since co-accused Rajkumar, Sarika, Kalawati have been acquitted, therefore, on the same evidence, the present accused appellant should also have been acquitted, cannot be accepted because deceased received two injuries in his head by sharp edged weapon and there is a positive evidence of the prosecution that out of these two head injuries, one was caused by the accused appellant with Gandasi and therefore, the act of the accused appellant is severable from the acquitted accused. (25). (25). The next question for consideration is whether by giving one gandasi blow on the head of the deceased, the accused appellant has committed the offence of culpable homicide amounting to murder punishable under section 302 IPC as held by the learned trial Judge or not. (26). Since in this case, rest three accused persons, namely, Rajkumar, Sarika and Kalawati were acquitted by the learned trial Judge and no appeal has been filed by the State against their acquittal, therefore, common intention to cause death of the deceased cannot be said to have been established by the prosecution. Hence, each accused would be liable for the injury caused by him. (27). In our considered opinion, looking to the entire facts and circumstances of the case and the facts that PW3 Dr. S.P. Singh has observed that two injuries on the head of the deceased should have been caused by different weapon and deceased died because of head injuries and out of these two head injuries, one was attributed to the accused appellant and another fatal blow on the head of the deceased was caused by some other person, but who caused that fatal blow has not been established by the prosecution beyond reasonable doubt as the learned trial Judge gave benefit of doubt to accused Rajkumar for that injury and further, common intention is missing, it cannot reasonably be inferred or gathered that by causing a single blow on the head of the deceased, the accused appellant was having intention to cause murder of the deceased. Further, in totality of the established facts and circumstances, the accused appellant could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury, but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Further, in totality of the established facts and circumstances, the accused appellant could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury, but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof or evidence on record that the accused appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will be attracted and therefore, the offence committed by the accused appellant would be covered by clause IV of Section 300 IPC which deals with knowledge and thus, the act of the accused appellant would amount to culpable homicide not amounting to murder punishable under section 304 Part-II IPC and not under section 302 IPC. (28). For the reasons stated above, the conviction of the accused appellant for the offence under section 302 IPC as recorded by the learned trial Judge through impugned judgment and order cannot be sustained and his conviction is altered from Section 302 IPC to one under section 304 Part-II IPC as the offence committed by him was culpable homicide not amounting to murder punishable under section 304 Part-II IPC. On point of sentence (29). Looking to the entire facts and circumstances of the case, ends of justice would be met if for the offence under section 304 Part-II IPC, the accused appellant is sentenced to undergo 8 years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo RI for six months. Accordingly, this appeal filed by the accused appellant Dhan Raj is partly allowed in the manner that his conviction for the offence under section 302 IPC as recorded by the learned Addl. Sessions Judge No. 1 Hanumangarh through impugned judgment and order dated 28.08.1999 is modified to the extent that in place of 302 IPC, he is convicted under section 304 Part-II IPC. Since the accused appellant has been convicted under section 304 Part-II IPC in place of 302 IPC, therefore, sentence of imprisonment for life as awarded by the learned Addl. Sessions Judge No. 1 Hanumangarh through impugned judgment and order dated 28.08.1999 is modified to the extent that in place of 302 IPC, he is convicted under section 304 Part-II IPC. Since the accused appellant has been convicted under section 304 Part-II IPC in place of 302 IPC, therefore, sentence of imprisonment for life as awarded by the learned Addl. Sessions Judge No. 1 Hanumangarh through order of sentence dated 28.08.1999 is set aside. For the offence under section 304 Part-II IPC, the accused appellant is sentenced to undergo 8 years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo RI for six months. The impugned judgment and order dated 28.8.1999 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh stand modified accordingly to the above extent.