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Rajasthan High Court · body

2005 DIGILAW 2065 (RAJ)

Thana Ram v. State

2005-08-05

B.PRASAD, GOPAL KRISHAN VYAS

body2005
Judgment 1. The accused Thana Ram was tired alongwith one Anna Ram on the report of the Additional Sessions Judge (Fast Track), Jalore in Sessions Case No. 37/2001 (Old No. 24/2000). Anna Ram was acquitted of the charges levelled against him. However, Thana Ram was convicted for the offence under Section 302, IPC and sentenced to life and fine of Rs. 5,000/-vide Judgment dated 112.2001. 2. The prosecution story as unfolded by complainant Jhunja Ram PW. 18 to Police Station Ahor is contained in FIR (Exhibit P-8) which has been formally recorded on the basis of the written report in the following manner:- 3. On 22.07.2000, the father of the complainant Jhunja Ram had gone to the well. Thereafter, he repaired the broken cot of Sheshnath Jogi and thereafter his father and Sheshnath stayed together and went to Rasiyawas. When considerable time elapsed and his father did not return, he made a search but to no consequence. In the morning on 23.07.2000, Rupa Ram informed him that his father is lying dead on way to Palasiya Kalan to Rasiyawas. When he went on the spot, he saw his father lying dead. In the first information report, it was also incorporated that on 22.07.2000 at about 7: 00 p.m. Thana Ram had come to his house and had given a threat. At that time, Saka Ram and Kanhaiya Lal were also there. He apprehended that pursuant to this threat, Thana Ram had eliminated his father. 4. On the basis of the statement, Police Station Ahore registered FIR No. 153/2000. After recording of the first information report, usual investigation was conducted and charge-sheet was filed. The case was sent to the trial Court ultimately for conducting trial where the accused appellant Thana Ram and Anna Ram were charged under Section 302 and in the alternative 302 read with 34, IPC. The accused persons denied the charge and claimed trial. At the trial, the prosecution examined 24 witnesses and tendered 19 documents in evidence. In the defence, the accused did not produce any evidence except getting eight documents exhibited. The trial Court considering the case of the prosecution found that the only alleged eye-witness PW.1 Sheshnath Jogi who was said to be with the deceased Deva Ram in the evening has not supported the prosecution case. In the defence, the accused did not produce any evidence except getting eight documents exhibited. The trial Court considering the case of the prosecution found that the only alleged eye-witness PW.1 Sheshnath Jogi who was said to be with the deceased Deva Ram in the evening has not supported the prosecution case. The trial Court has noticed that there are witnesses who have stated that the accused had held out a threat to the accused that they will kill the deceased. Considering the threat to be one of the pieces of evidence, the trial Court considered the recovery of lathi which was found to be blood stained as a corroborative piece of evidence and convicted the accused appellant Thana Ram under Section 302, IPC and sentenced to life imprisonment with a fine of Rs. 5000/-. The accused Anna Ram was however not convicted because the lathi recovered at his instance was not found to be blood stained. 5. Learned Counsel for the appellant arguing the case on behalf of the accused appellant submitted that only circumstance which is an addition to the acquitted accused Anna Ram is the recovery of lathi which has been found to be established as blood stained of blood group A of human origin which is a very weak proposition to sustain the conviction under Section 302, IPC otherwise, the case of Anna Ram is at per with the accused Thana Ram. Further, the learned Counsel has criticised the testimony of the witnesses who have given evidence regarding holding out of threat to the deceased. One of the witnesses in this regard had been PW. 3 Kala Ram. According to Kala Ram, when he was going to the well of Nain Singh. He saw the two accused persons drunk on the way. After his arrival, the accused also came there and stayed, there for about half an hour and at that time, it is said that Thana Ram said that he has to perform a job and on inquiry, he said that the work is to murder Deva Ram. In his police statement, he has stated that the accused accompanied him, to the well but this part of the statement was denied by him. According to him, the accused only stayed at the well for about half an hour whereas, in his police statement, he had given this time to be one hour. In his police statement, he has stated that the accused accompanied him, to the well but this part of the statement was denied by him. According to him, the accused only stayed at the well for about half an hour whereas, in his police statement, he had given this time to be one hour. In his police statement, he has also not stated that Thana Ram said that he has to perform a job and on their asking he informed it. This part of statement has not been given by him to police. This witness is the real nephew of the deceased. He was examined three days after the incident. 6. Another witness of the threat is PW. 5 Saka Ram. He states that at about 5:00 p.m. on the previous day of the incident, he was at his field where the accused came and started saying that they have to kill Deva Ram. He pacified the accused and sent them home. He admits that in the police statement (Exhibit D-3), he had not given the name of the accused Anna Ram. He is also the nephew of the deceased. He admits that he has not informed anybody that the accused had threatened to kill Deva Ram. 7. PW. 8 Nain Singh has turned hostile and without his supporting the testimony of witness that at his place, the threat was held out cannot be sustained. Thus, the learned Counsel for the appellant urged that fact of holding out threat has been tried to be established by the prosecution in a very fragile manner. Further mere holding out of threat is not enough to show that it was the accused alone who had committed the murder. The recovery of the lathi is doubtful proposition because both the witnesses have stated that the lathis were recovered from the same place but which lathi belongs to which accused is not a certainty. No distinct identifiable mark is available on the lathi to show that this lathi belonged to this accused only. Therefore, seeking corroboration from the lathi recovered is again a weak proposition. Support of a weak witness by another weak witness is a situation where requirement of criminal law is not met and where offence should be brought home to the accused without any suspicion or ambiguity. Therefore, no case can be said to be made out against the accused. 8. Support of a weak witness by another weak witness is a situation where requirement of criminal law is not met and where offence should be brought home to the accused without any suspicion or ambiguity. Therefore, no case can be said to be made out against the accused. 8. Per contra, learned Public Prosecutor submitted that the eye-witness PW. 1 Sheshnath having turned hostile, the prosecution was banking upon the testimony of the persons who have seen both the accused together in a drunken condition and holding out a threat and next morning, the deceased was found dead. Thus, within the permissible period of time of the accused holding out the threat and materialising it next morning. His weapon of offence, lathi being recovered blood stained with the blood of the blood group of deceased, the offence is proved and there is no ambiguity in the prosecution and the trial Court has rightly believed the prosecution case and convicted the accused appellant as aforesaid. 9. We have given our thoughtful consideration and have perused the record. The prosecution is based on two circumstances i.e., one holding out a threat to the deceased and the other is recovery of lathi which has been found to be blood stained with group A of human origin. The only eye-witness PW. 1 Sheshnath has turned hostile and has not supported the prosecution case. The trial Court has believed the circumstances of holding out of the threat. 10. Learned Counsel for the accused has stressed the worth of PW. 3 Kala Ram in detail and has stated that he is not a witness of any consequence. The threat is said to have been given at the well of Nain Singh PW. 8 Nain Singh has not supported the case. PW. 3 Kala Ram has not stated in terms of what he has already stated in the police statement. Thus, he has improved his version in the Court. According to this witness, the accused had first said that they had to accomplish a job. This part of the statement was not contained in the police statement of this witness. If a statement attributed to the deceased is not true or is not faithfully deposed by the witness in Court, then it becomes a very doubtful proposition. It is very easy to put words in the mouth of the accused but very difficult to rebut them. If a statement attributed to the deceased is not true or is not faithfully deposed by the witness in Court, then it becomes a very doubtful proposition. It is very easy to put words in the mouth of the accused but very difficult to rebut them. The accused has no means to attribute this witness than to cross-examine him in the cross-examination. This witness has admitted that in the police statement, he has not informed that the accused stated that he has a work to accomplish. If that part of the statement as attributed to him is not true, then rest of the statement cannot be considered to be of that important worth so as to carry it to the extent of treating as chain of circumstances which can be used to fasten the guilt on the accused. He is a relation witness. His statement was recorded three days after the incident. Thus, his late examination indicate that this could be an after thought. 11. Another witness speaking of this circumstance is PW. 5 Saka Ram. He is also the nephew of the deceased and, therefore, this causes a kind of suspicion in the mind of the Court that the prosecution has brought out a case where the accused is alleged to have first made a threat at Nain Singhs place and then, this accused is alleged to have heard the threat at 5:00 p.m. PW. 3 Kala Ram is alleged to have heard the threat at about 7:00 p.m., then there is another witness of this kind i.e., Jetha Ram who is alleged to be at Well of Nain Singh. He stated that the accused came and there was quarrelling in between them. Nain Singh came and exhorted two accused persons to get away. According to this witness, there was no threat held out by the accused persons. In the light of the statement of PW. 7 Jetha Ram and that of PW. 8 Nain Singh, it becomes doubtful that any threat was held out at the well of Nain Singh. 12. From the aforesaid discussion, we find that holding out threat by the accused appears to be weak proposition. This fact has further to be considered in the light that mere holding out of a threat is not by itself a circumstance which would indicate that the death was caused by the accused appellant alone. 12. From the aforesaid discussion, we find that holding out threat by the accused appears to be weak proposition. This fact has further to be considered in the light that mere holding out of a threat is not by itself a circumstance which would indicate that the death was caused by the accused appellant alone. A threat held out is not a circumstance which can be equated with that of an extra-judicial confession because extra-judicial confession comes out of remorse and threat is a pre-determination of a fact which may and may not occur. All threats which are held out are not accomplished and, therefore, the threat alone as held out cannot be considered to be a circumstance indicative of the implication of the accused. More particularly, when the trial Court itself has held out that this circumstance alone is not sufficient to convict the accused Anna Ram. The recovery of lathi, an un-identifiable weapon being blood stained would not be that strong corroboration which by itself would be able to sustain the finding that the accused alone was responsible for committing the murder. In that background, the findings arrived at by the trial Court that the accused is guilty of causing the death of the deceases is a proposition which is not acceptable to us. Most of the witnesses have only expressed doubt and doubt cannot take place of proof and in this background, we are of the considered opinion that the offence as made out against the accused is not sustainable and the same deserves to be set aside. 113. In the result, the appeal is allowed. The conviction and sentence as awarded to the accused appellant. Thana Ram are set aside. He is behind the bars. He should be released forthwith, if not required in any other case.