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2004 DIGILAW 94 (RAJ)

Ram Prasad v. The State of Rajasthan

2004-01-20

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - This appeal has been filed by the, accused appellant against the judgment and order dated 31.3.1984 passed by the learned Addl. Sessions Judge, Gangapur City in Sessions Case No. 40/83 by which he convicted the accused appellant for the offence under Section 304 Part-II IPC in place of 302 IPC and sentenced him to undergo four years RI and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo six months imprisonment. 2. It arises in the following circumstances:- On 30.1.1983, PW1 Ratanlal lodged a written report Ex.P/1 with the Police Station Salempur District Sawai Madhopur before PW8 Jagveer Singh, SHO of that Police Station stating inter-alia that on 27.12.1982 (date of incident) a dispute arose between the accused appellant and Rajulal (hereinafter referred to as deceased) both real brothers over taking of water from the well among the ladies and further. a dispute also arose between the wife of the accused appellant and PW3 Phuli wife of PW2 Gangasahai (he is also brother of the accused appellant and deceased). It was further stated in the report Ex.P/1 by PW1 Ratanlal that at that time, deceased was also there and the accused appellant asked deceased that he should make understand his wife and similar advise was given by the deceased to the accused appellant. It was further stated in the report Ex.P/1 that thereafter, both accused appellant and deceased quarrelled and the accused appellant caught hold of deceased and put him on the place where stones were lying, as a result of which deceased received injury on his head and thereafter, deceased became very much furious and deceased gave lathi blow on the leg of the accused appellant as a result of which his leg was broke,) and thereafter, when their elder brother intervened, deceased further fell down over the stones and became injured. It was further stated in the report Ex.P/1 by PW1 Ratanlal that thereafter, he and PW2 Gangasahai both intervened in the matter and thereafter, deceased was taken to the SMS Hospital, Jaipur where he was got admitted and the accused appellant was taken to Bharatpur Government Hospital, where he was also got admitted. However, deceased died on 29.1.1983 and thereafter, this report Ex.P/1 was lodged after about one month of the incident. However, deceased died on 29.1.1983 and thereafter, this report Ex.P/1 was lodged after about one month of the incident. On this report Ex.P/1, police registered the case and chalked out regular FIR Ex.P/2 and started investigation. During investigation. site plan Ex.P/3 was got prepared and the accused appellant was got arrested on 5.2.1983 through arrest memo Ex.P/12. The post mortem of the dead body of the deceased was got conducted by PW7 Dr. Jagmohan Goyal and the post mortem report is Ex. P/11. It is also the case of the prosecution that before the death of the deceased, when he was admitted in the SMS Hospital, Jaipur, he was also got medically examined by PW11 Dr. Vivekanand and the injury report is Ex.P/15 dated 27.12.1982. After usual investigation, police submitted challan for the offence under Section 302 IPC against the accused appellant in the Court of Magistrate and from where the case was committed to the Court of Session. On 22.9.1983, the learned Addl. Sessions Judge, Gangapur City framed charge for the offence under Section 302 IPC against the accused appellant. The charge was read over and explained to the accused appellant, who pleaded not guilty and sought trial. During trial, the prosecution got examined as many as 13 witnesses and exhibited several documents. Thereafter, statement of the accused appellant under Section 313 Cr.PC. was recorded. No evidence was led by the accused appellant in defence. After conclusion of trial, the learned Addl. Sessions Judge, Gangapur City through impugned judgment and order dated 31.3.1984 convicted the accused appellant for the offence under Section 304 Part-II IPC in place of 302 IPC and sentenced him in the manner as indicated above holding inter alia that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under Section 304 Part-II IPC. Aggrieved from the said judgment and order dated 31.3.1984 passed by the learned Addl. Sessions Judge, Gangapur City, the accused appellant has preferred this appeal. 3. Aggrieved from the said judgment and order dated 31.3.1984 passed by the learned Addl. Sessions Judge, Gangapur City, the accused appellant has preferred this appeal. 3. In this appeal, the following submissions have been made by the learned counsel for the accused appellant:- (i) That in this case, the alleged incident took place on 27.12.1982 and the report Ex.P/1 was lodged on 30.1.1983 and thus, there is a delay in lodging the report, which is fatal for the prosecution case, especially when the deceased was got admitted in the SMS Hospital, Jaipur on 27.12.1982, he was got medically examined by PW11 Dr. Vivekanand and in his injury report Ex.P/15, it was specifically mentioned that brother of the deceased did not want any police action and in view of this fact, delay in this case is very much fatal to the prosecution and the incident as alleged cannot be accepted. (ii) That all the relative witnesses, especially PW2 Gangasahai, brother of the deceased, who was eye witness, PW3 Phuli, wife of PW2 Gangasahai, PW4 Mst. Dharmo, wife of deceased, PW5 Chawti, mother of the deceased and PW6 Ramdhan, another brother of the deceased, have been declared hostile and therefore, the case of the prosecution as alleged should have not been believed by the learned trial Judge. (iii) That the statement of PW1 Ratanlal, on which reliance has been placed by the learned trial Judge, itself is not sufficient to make conviction of the accused appellant for the offence under Section 304 Part-II IPC as from his statement, it is also clear that a dispute arose between the deceased and the accused appellant and because of falling over stones, deceased received injuries and therefore, to say that the accused appellant caused the murder of the deceased cannot be accepted. Hence, it was submitted that the findings of conviction recorded by the learned trial Judge against the accused appellant for the offence under Section 304 Part- II IPC are liable to be set aside and the accused appellant is entitled to acquittal. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Gangapur City. 5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and gone through the record of the case. 6. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Gangapur City. 5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and gone through the record of the case. 6. It may be stated here that there is no dispute on the point that alleged incident took place on 27.12.1982 and the report Ex.P/1 was lodged on 30.1.1983 by PW1 Ratanlal, who is also relative of the deceased as well as accused appellant. 7. Before proceeding further, first medical evidence of this case has to be seen. 8. As per the case of the prosecution, the deceased was got admitted n the SMS Hospital, Jaipur on 27.12.1982 and on that day, he was got medically examined by PW11 Dr. Vivekanand, who prepared the injury report Ex. P/15. 9. A bare perusal of the injury report Ex.P/15 reveals the following acts:- (i) That deceased received injury because of fall of patti (stone) on his head. (ii) That PW2 Gangasahai, brother of the deceased, requested that he did not want any police action and therefore, no medical examination report about the injuries of the deceased was got prepared by PW1 1 Dr. Vivekanand. 10. PW11 Dr. Vivekanand has been produced by the prosecution and he has stated in his statement recorded in Court that PW2 Gangasahai refused to get deceased medically examined and therefore, he was not examined. He has further stated that when he wanted to examine deceased, e was conscious and when PW2 Gangasahai asked him not to medically Examine deceased, for that, deceased also did not make any protest. 11. Thus, from the statement of PW11 Dr. Vivekanand and the injury report Ex.P/15, it is very much clear that deceased was got admitted in the SMS Hospital, Jaipur on 27.12.1982, but he was not medically examined as his brother PW2 Gangasahai did not want to get medically examined deceased and further, there is no mention of the fact that deceased received injury because of falling over stones, but on the contrary, he received injury because of falling of patti over his head. 12. From the statement of PW7 Dr. 12. From the statement of PW7 Dr. Jagmohan Goyal, it is also very much clear that after death of the deceased, he conducted the post mortem on 30.1.1983 at 11.30 AM and prepared the post mortem report Ex.P/11, where he opined that cause of death of the deceased was suppurative infection of brain and meninges due to compound fracture of occipito parietal bone (head injury). 13. Now, oral evidence of this case has to be seen. 14. The report Ex.P/1 was lodged by PW1 Ratanlal and he has admitted the following facts in cross-examination - (i) That first deceased went to the house of the accused appellant for making complaint and he was armed with lathi. (ii) That stones were lying near the house of the accused appellant and deceased fell over these stones. (iii) That deceased first fell on the stones and thereafter, he got up and gave lathi blow to the accused appellant. (iv) That the report was not lodged on the date of occurrence as the dispute was between the brothers. (v) That when deceased was got admitted in the hospital, it was wrongly stated that deceased received injuries because of fall of patti (stone) on his head. (vi) That both deceased and accused appellant are real brothers and he is their cousin brother. (vii) That both deceased as well as accused appellant received injuries. 15. PW2 Gangasahai, who is brother of the deceased as well as accused appellant and who was present at the time when deceased was got admitted in the SMS Hospital, Jaipur on 27.12.1982, has stated that the accused appellant also received injuries in the same incident, but he cannot say how the deceased received injuries and he has been declared hostile. 16. PW3 Mst. Phuli is the wife of PW2 Gangasahai and she has also been declared hostile. 17. PW4 Mst. Dharmo is the wife of the deceased, but she has been declared hostile. 18. PW5 Chawti is the mother of the deceased and she has also been declared hostile. 19. PW6 Ramdhan, another brother of the deceased has also been declared hostile.However, all the above witnesses, who have been declared hostile, have admitted that the accused appellant also received fracture in his leg. 20. 18. PW5 Chawti is the mother of the deceased and she has also been declared hostile. 19. PW6 Ramdhan, another brother of the deceased has also been declared hostile.However, all the above witnesses, who have been declared hostile, have admitted that the accused appellant also received fracture in his leg. 20. On the above evidence, the question for consideration is whether the findings of conviction recorded by the learned trial Judge against the accused appellant for the offence under Section 304 Part-II IPC can be sustained or not. 21. In my considered opinion, because of the following reasons, the findings of conviction recorded by the learned trial Judge against the accused appellant for the offence under Section 304 Part-li IPC cannot be sustained and are liable to be set aside:- (i) That when there is inordinate delay in lodging the FIR, the case of the prosecution comes under the shadow of doubt. In this case, the alleged incident took place on 27.12.1982 and the report Ex.P/1 was lodged on 30.1.1983 and thus, there is a delay of more than one month in lodging the report Ex.P/1 and that delay appears to be fatal to the prosecution and brings the case of the prosecution under the shadow of doubt. (ii) That in the injury report Ex.P/15 of the deceased, there is a clear mention of the fact by PW2 Gangasahai, who is brother of both deceased as well as accused appellant, that deceased received injury because of falling of patti (stone) on his head and therefore, in these circumstances, to say after more than one month that it was the accused appellant who caused injuries to the deceased, cannot be accepted. (iii) That in this case, PW2 Gangasahai, who is brother of the deceased, PW3 Mst. Phuli, who is the wife of PW2 Gangasahai, PW4 Mst. Dharmo, who is the wife of the deceased, P5 Chawti, who is the mother of the deceased and PW6 Ramdhan, another brother of the deceased have been declared hostile and they do not support the prosecution case and therefore, in these circumstances, the case of the prosecution that the accused appellant caused injuries, as are found in the post mortem report Ex.p/11, to the deceased cannot be accepted. (iv) That the best evidence against the accused appellant would have been the evidence of the wife of the deceased, namely, PW4 Mst. (iv) That the best evidence against the accused appellant would have been the evidence of the wife of the deceased, namely, PW4 Mst. Dharmo, but since she has been declared hostile, therefore, the case of the prosecution that deceased received injuries at the hands of the accused appellant becomes doubtful and cannot be accepted. No doubt other witnesses are close relatives of the deceased as well as accused appellant and they may try to save the accused-appellant because of their close relationship. but when the wife of the deceased, namely, PW4 Mst. Dharmo has been declared hostile, it reflects that the incident as alleged by the prosecution has not taken place otherwise a wife would not save a person, who has caused injuries to her husband. From this point of view also, the case of the prosecution comes under the shadow of doubt. (v) That a bare perusal of the statement of PW1 Ratanlal clearly shows that deceased received injuries because of falling over stones, but there is no evidence on record to show that it was because of the act on the part of the accused appellant and furthermore, after falling on the stones, deceased got up and gave lathi blow to the accused appellant. It is also clear from the statement of PW1 Ratanlal that deceased first went to the house of the accused appellant and he was armed with lathi. Therefore, the genesis of the occurrence is also not clear in this case as to how both accused appellant and deceased received injuries. Had this been clear, the report would have been lodged earlier and the fact that it was lodged after more than one month itself goes to show that the incident as alleged did not take place. 22. For the reasons stated above, the findings of the learned trial Judge by which he convicted the accused appellant for the offence under Section 304 Part-II IPC cannot be sustained and the same are liable to be set aside 50 and this appeal deserves to be allowed and the accused appellant is entitled to acquittal.Accordingly, this appeal filed by the accused appellant Ram Prasad is allowed and the impugned judgment and order dated 31.3.1984 passed by the learned Addl. Sessions Judge. Sessions Judge. Gangapur City are set aside and the accused appellant is acquitted of the charge framed against him.Since the accused appellant is on bail, he need not surrender and his bail bonds stand discharged.Appeal allowed - Conviction set aside. *******