Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 1079 (RAJ)

Birbal Ram v. State of Rajasthan

2011-05-19

GOVIND MATHUR, NARENDRA KUMAR JAIN

body2011
Hon'ble JAIN, J.—Heard the learned counsel for the parties, for final disposal of the appeal itself. 2. This appeal is preferred to question the correctness of the judgment dated 4th August 2006 passed by the learned Additional Sessions Judge, Rajgarh, District-Churu in Sessions Case No. 08/2005- State vs. Birbal Ram & another, convicting the appellant-accused Birbal Ram s/o Chuni Ram, by caste-Kumhar, r/o Dhani Kumharan, Tehsil-Taranagar, District- Churu; for the offence punishable under Sec. 302 IPC and sentenced him to undergo life imprisonment along with fine of Rs. 5000/-, in default of payment whereof to further undergo 10 months' rigorous imprisonment. 3. In brief, the facts of the case are that Chuni Ram (PW.1) submitted a written report (Ex. P.1) at Police Station Taranagar, inter alia, alleging that a dispute has been going on between his sons-Birbal Ram and Hasta Ram regarding agriculture land. On 8th March 2005 at about 7 PM a quarrel took place between appellant-Birbal Ram, his wife and his son with wife of Hasta Ram. When Hasta Ram came home in the evening, at that time appellant Birbal Ram, his wife Bhanwari Devi and his son Kalu started beating Hasta Ram with lathis. After some time, Hasta Ram died due to injuries caused by them. It is further alleged that upon hue & cry, the complainant himself and Kesra & Ram Niwas-sons of Hasta Ram had reached there. 4. On the basis of this report, an FIR No. 34/2005 (Ex. P2) was lodged under Sec. 302/34 IPC. After due investigation, in view of death of Hasta Ram, Police filed challan against the appellant and his wife Bhanwari Devi before the competent court of Judicial Magistrate, Taranagar (Churu) for offence punishable under Sec. 302/34 IPC. The case was then committed to the court of Sessions. The matter was ultimately assigned to the court of Additional Sessions Judge, Rajgarh. 5. During the trial, the prosecution supported its case with the aid of 13 witnesses and 41 documents. Out of 13 witnesses, three witnesses PW1 Chuni Ram, who lodged the First Information Report and his two sons- PW2 Kesra Ram and PW.3 Ram Niwas, were examined as eye-witnesses. PW.5 Goran Devi w/o deceased Hasta Ram is also cited as prosecution witness for this incident. PW.4 Dr. Jai Narain Khatri was examined to prove the postmortem report of the deceased (Ex. P5). PW.5 Goran Devi w/o deceased Hasta Ram is also cited as prosecution witness for this incident. PW.4 Dr. Jai Narain Khatri was examined to prove the postmortem report of the deceased (Ex. P5). PW.11 Vikram Singh was examined as Investigating Officer and other witnesses- PW.6 to PW. 10 were examined to prove the documents produced by the prosecution in support of their case. PW.13 Shishpal has turned hostile. 6. An opportunity was given to the accused-appellant as per provisions of Sec. 313 Cr.P.C. to explain his conduct with regard to adverse material available in the evidence adduced by the prosecution, whereupon the accused-appellant stated that the witnesses who were his near relatives have alleged false implication. Chuni Ram (PW.1) is his father and after the death of his mother, he married again. Hasta Ram (deceased) was his real brother and the appellant-accused and Kesra Ram (PW.2) & Ram Niwas (PW. 3) are also brothers in relation. He tried to clarify that, in fact, the murder was not committed by him but by Chuni Ram and his second wife's two sons-Kesra Ram and Ram Niwas. 7. In defence, the statements of 4 witnesses- DW1 Jagdish Kumar, DW2 Norang Ram, DW3 Gheesa Ram and DW4 Sanwarmal were recorded and documents D1 to D4 were exhibited. 8. The learned trial Court, while relying upon testimony of the prosecution witnesses, convicted the accused-appellant, in the terms mentioned herein above. 9. In the appeal, it is submitted by the learned counsel for the appellant that the trial Court has erred in relying upon statements of the prosecution witnesses and that the prosecution has failed to prove its case beyond reasonable doubts. It is further submitted that the appellant is innocent and has been falsely implicated in this case. No case for alleged offence has been made out against the accused-appellant. The impugned judgment dated 4 August 2006 is incorrect, unjust, improper and not sustainable in the eye of law. The findings arrived at by the learned trial Court are illegal. There are material contradictions and improvements in the statements of the prosecution witnesses. The prosecution story has been extended at each and every step of investigation as well as during the trial. The link chain of the prosecution story stands demolished. 10. It is further contended that PW.1 Chuni Ram, PW.2 Kesra and PW3 Ram Niwas are close relatives of the deceased. The prosecution story has been extended at each and every step of investigation as well as during the trial. The link chain of the prosecution story stands demolished. 10. It is further contended that PW.1 Chuni Ram, PW.2 Kesra and PW3 Ram Niwas are close relatives of the deceased. There are material contradictions and improvements in their statements. There is no independent witness to link the appellant with the offence and presence of eye-witnesses is not proved beyond reasonable doubts. Therefore, the conviction of the appellant is not sustainable and the same is liable to be set aside. 11. Learned counsel for the appellant further submitted that the recoveries have also not been established beyond reasonable doubts. There is no motive to kill deceased-Hasta Ram. The injuries found on the body of deceased are also not sufficient to link the appellant, therefore, the ingredients of offence under Sec. 302 IPC are not proved beyond scope of reasonable doubt. In view of this, the prosecution story does not stand on its own legs and hence, the impugned judgment of conviction and order of sentence is not sustainable. 12. The learned counsel for the appellant further submitted that substantial witnesses of the prosecution turned hostile and only interested witnesses supported the prosecution story. The complainant tried his best to falsely implicate the appellant. The documentary evidence were fabricated and collected during the course of investigation by the investigating authorities, which indicates innocence of the appellant. Further, the defence witness has not been taken into consideration by the learned trial Court. The trial court wrongly came to the conclusion that some explanation should be established by the appellant. Therefore, the impugned judgment is liable to quashed and set aside. 13. The learned counsel for the appellant further contended that the prosecution has failed to prove the intention of the appellant-accused for committing the alleged offence, therefore, the impugned conviction of the appellant is liable to be set aside. The appellant has no motive or knowledge for causing the injuries to the deceased and at the highest, act of the accused-appellant does not travel beyond the scope of offence under Sec. 304 Part-II IPC. The appellant has no motive or knowledge for causing the injuries to the deceased and at the highest, act of the accused-appellant does not travel beyond the scope of offence under Sec. 304 Part-II IPC. He placed reliance upon decisions of Hon'ble Supreme Court in Jagrup Singh vs. State of Haryana, AIR 1981 SC 1552 , Jagtar Singh vs. State of Punjab, AIR 1983 SC 463 as well as judgments delivered by this Court in Surja Ram & Ors. vs. State of Rajasthan etc., 2010(1) CrLR (Raj.) 188 and Heera vs. State of Rajasthan, 2010 (1) CrLR (Raj.) 411. 14. While opposing the appeal, it is submitted by the learned Public Prosecutor that there is no reason to disbelieve the prosecution evidence PW1 Chuni Ram, PW.2 Kesra Ram, PW3 Ram Niwas and PW 5 Goran Devi, evidence of recovery and the evidence of the Investigating Officer and also that the prosecution has proved its case beyond doubt, so as to establish that it was accused-appellant who committed the instant crime. He further submitted that the report Ex. P. 1 was promptly lodged and Ex. P2 FIR was registered at Police Station Taranagar district Churu and the police investigation commenced immediately thereafter. He further submitted that the statements of the prosecution witnesses clearly proved the prosecution case. Learned Public Prosecutor supported the judgment of the trial Court and submitted that when there are trustworthy evidence and all the witnesses are family members of the accused then there is no reason to discard their evidence merely on the ground that they are family members of the accused-appellant himself. It is submitted that, in fact, in view of relation of the witnesses it can be presumed that they will not implicate their family man in false case and such witnesses will leave the real culprit. In the facts and circumstances of the case, minor contradictions in the statement of the witnesses, who are villagers, can not be a ground to doubt their credibility. It is also submitted that the defence version is not true and natural in the facts and circumstances of the case. 15. The medical evidence of PW.4 Dr. Jai Narain Khatri and the post-mortem report (Ex.P/5) on record fully established that the deceased Hasta Ram died on account of injuries caused by the accused-appellant and as such, the accused-appellant has been rightly convicted by the trial court. 15. The medical evidence of PW.4 Dr. Jai Narain Khatri and the post-mortem report (Ex.P/5) on record fully established that the deceased Hasta Ram died on account of injuries caused by the accused-appellant and as such, the accused-appellant has been rightly convicted by the trial court. So, the appeal of the accused-appellant lacks merit and is liable to be dismissed. 16. We have given our thoughtful consideration to the submissions made by the learned counsel for rival parties and have carefully perused the evidence on record available before us. 17. In view of postmortem report Ex. P.5 and statement of Dr. Jai Narain Khatri (PW.4), following injuries were found on the body of the deceased Hasta Ram: (1) A through and through penetrating wound of 1-3/4 cm x 6 mm size with clear margins present in 5th (It) inter-coastal space, just lateral of (Lt) Nipple. (2) Contusion 6" x 2" over anterior adjunct of lower parts of chest at xiphil stoni, lying horizontally. (3) Contusion lying obliquely of 3" x 2" size at anterior part of (Lt) chest and middle part of sternum. 18. Thus, the nomicidal death of Hasta Ram is undisputed. The act of the accused-appellant is established on the basis of facts stated by the witnesses PW.1 Chuni Ram, PW.2 Kesra Ram and PW.3 Ram Niwas, who stated that the accused-appellant stabbed Jeyi to Hasta Ram, who ultimately died on the spot due to above injuries, which is sufficient to cause death in the ordinary course of nature. Undoubtedly, the injuries had been caused by the accused-appellant on vital parts of deceased Hasta Ram. 19. Each case is to be considered on its own facts. However, taking holistic view of the matter, in such a case entire attending circumstances must be taken into consideration in order to find out the nature of the actual offence committed. 20. In such circumstances, we do not find anything wrong in the findings given by the trial Court to the extent of involvement of the accused-appellant in the crime. The only question requiring consideration is that whether the act of the accused-appellant amounts to murder, punishable under Sec. 302 IPC or it constitutes an offence other than that. 20. In such circumstances, we do not find anything wrong in the findings given by the trial Court to the extent of involvement of the accused-appellant in the crime. The only question requiring consideration is that whether the act of the accused-appellant amounts to murder, punishable under Sec. 302 IPC or it constitutes an offence other than that. From the facts and evidence available on the record we are of the view that death of the deceased due to injuries caused by the accused-appellant constitutes culpable homicide, not amounting to murder and punishable under Sec. 304. 21. For the evidence available on record we find that it is only a case of assault in heat of the moment, without premeditation or preplan. The accused-appellant inflicted bodily injuries upon deceased Hasta Ram, which were of such nature that they were likely to cause death. There can be no doubt that the accused-appellant intended to cause and did cause the injuries and therefore, he is liable to be punished under Part-I of the Sec. 304 IPC. 22. For this purpose, the principles is enunciated by Hon'ble Apex Court in Jagriti Devi vs. State of H.P., AIR 2009 SC 2869 , that Sec. 300 IPC provides for the exception, which will constitute culpable homicide, not amounting to murder and punishable under Sec. 304. When and if there is intend and knowledge then the same would be a case of Sec. 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Sec. 304 Part II of the Indian Penal Code. The act of the accused falls within the purview of offence punishable under Sec. 304 Part I IPC, looking to the facts & circumstances of this case. The judgments cited by learned counsel for the accused-appellant does not help him, being clearly distinguished on facts and circumstances. 23. In view of the above, while disposing of this appeal, we modify conviction of the accused-appellant Birbal Ram s/o Chuni Ram to be under Sec. 304 Part I IPC instead of Sec. 302 IPC and consequently, the sentence awarded to the accused-appellant is also modified to 7 years rigorous imprisonment along with fine of Rs. 5000/-, in default of payment whereof to undergo further imprisonment for period of 3 months.' 24. 5000/-, in default of payment whereof to undergo further imprisonment for period of 3 months.' 24. The Second Application for Suspension of Sentence of the accused-appellant also stands disposed of accordingly.