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2012 DIGILAW 1937 (RAJ)

Ram Lal v. State of Rajasthan

2012-09-12

GOVIND MATHUR, R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—Although this case has been listed on the second bail application of Ram Lal, but with the consent of both the parties this appeal is being decided finally. 2. The appellants, Ram Lal and Bhuvan, are aggrieved by the judgment dated 21.6.2010 passed by the Additional Sessions Judge, Pratapgarh whereby the learned Judge has convicted both the appellants for offences under Sections 341 and 302 read with Section 34 IPC. For the former offence, the learned Judge has sentenced them to one month of simple imprisonment; for the latter offence the learned Judge has sentenced them to life imprisonment and has imposed them with a fine of Rs.2,000/- each, and has further directed them to undergo one year of rigorous imprisonment in default thereof. 3. In brief the facts of the case are that on 15.04.2008, Ghanshyam (P.W.5) submitted an oral information to the police at the Pratapgarh Hospital, wherein he claimed that in the day time he had gone to village Jathiyakher. In the evening around 6:00 PM he had gone to village Mowai. Around 7:30 PM, he and Suresh were going on a motorcycle from village Mowai to village Diwala. While they were going to Diwala, one Dinesh was going on a bicycle in front of them. As soon as they turned on the road towards Diwala, Bhuvan and Ram Lal (the appellants), suddenly came on the road and stopped them. Both of them were carrying lathi (bamboo sticks) in their hands. According to him, he was driving the motorcycle and Suresh was sitting as a pillion rider. The moment he saw the appellants, he jumped from the motorcycle and ran away. Bhuvan hit Suresh on his head with the lathi, thereby, grievously injuring him. He further claimed that since he was scared, he ran away. Although he raised some hue and cry, but nobody came to their rescue. Dinesh, who was going on bicycle, was also hit by the appellants. Subsequently, Satyanarayan called Suresh's brother, Gopal, on the phone. Gopal and Satyanarayan took Suresh, on the motorcycle, to the Pratapgarh Hospital. He further claimed that four to five months ago, he and Bhuvan had fought with each other. Ever since then, Bhuvan had an animosity against him. It is due to this animosity that they were attacked and Suresh was seriously injured. Gopal and Satyanarayan took Suresh, on the motorcycle, to the Pratapgarh Hospital. He further claimed that four to five months ago, he and Bhuvan had fought with each other. Ever since then, Bhuvan had an animosity against him. It is due to this animosity that they were attacked and Suresh was seriously injured. On the basis of this oral information, a formal FIR, FIR No.92/2008 (Ex.P.16), was chalked out for offences under Section 341, 323, 307/34 IPC. However, after four days i.e. on 18.04.2008, Suresh expired. With his death, the offence under Section 302 IPC was added. Subsequently, a charge-sheet was submitted against the appellants for offences under Section 341, 302/34 IPC. 4. In order to buttress its case, the prosecution examined fifteen witnesses, and submitted twenty-three documents. Although the defence did not examine any witness, it did submit twenty-three documents. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellants as aforementioned. Hence, this appeal before this Court. 5. Mr. Kaluram Bhati, the learned counsel for the appellants, has vehemently contended that the learned Judge has overlooked the fact that the FIR was lodged after an inordinate delay. Therefore, the case of the prosecution is suspect. Secondly, Ghanshyam (P.W.5) admitted the fact that there is animosity between him and the appellants. Therefore, he an inimicable witness. Hence, the possibility of false implication cannot be ruled out. Thirdly, if the testimony of Ghanshyam (P.W.5) is to be believed, then the animosity was between him and Bhuvan. However, Bhuvan is said to have assaulted Suresh on his head with a lathi. But, there is no motive for Bhuvan to have assaulted Suresh, instead of chasing Ghanshyam. Fourthly, according to the witnesses, the road which turned from Mowai towards village Diwala was a rough one. The possibility that the motorcycle slipped thereby causing injury to Suresh on his head cannot be ruled out. Lastly, even if the prosecution case were taken to be true, even then it is a case of single injury on the head. Therefore, the case does not travel beyond Section 304 Part II IPC. Hence, their conviction should be reduced from Section 302 IPC to Section 304 Part II IPC. Consequently, their sentence should be reduced. 6. On the other hand, Mr. K.R. Bishnoi, the learned Public Prosecutor, has vehemently contended that the FIR does not suffer from any inordinate delay. Therefore, the case does not travel beyond Section 304 Part II IPC. Hence, their conviction should be reduced from Section 302 IPC to Section 304 Part II IPC. Consequently, their sentence should be reduced. 6. On the other hand, Mr. K.R. Bishnoi, the learned Public Prosecutor, has vehemently contended that the FIR does not suffer from any inordinate delay. The alleged incident occurred at 7:30 PM and the FIR was lodged at 11:30 PM. Thus, there is only a delay of only four and a half hours. Considering the fact that Gopal and Satyanarayan had taken the injured to two different hospitals, considering the fact that they informed the police and were told by the police to get the injured admitted in hospital, the delay of four and a half hours is clearly explained. Hence, the delay is not fatal to the prosecution case. Secondly, in the present case, Dinesh (P.W.3) and Ghanshyam (P.W.5) are eye-witnesses of the alleged incident. Thus, it is the case of direct evidence. In case of direct evidence, motive loses its relevance.. Thirdly, even if Ghanshyam (P.W.5) has an animosity with the appellants, even if he is inimicable witness, but he has been corroborated both by Dinesh (P.W.3) who happens to be an independent witness, and by the medical evidence. Since there is sufficient corroboration of his testimony, he is trustworthy witness. Hence, his testimony should not be discarded. Fourthly, there is no indication either in the testimony of the witnesses or in the site plan (Ex.P.2) that the place of incident was rough and uneven. Moreover, according to Dr. Akhilesh (P.W.8) in case the motorcycle had slipped on a rough surface of the road, Sureseh would have suffered other injuries. However, the other injuries are missing. Thus, Suresh did not sustain injuries due to the slipping of the motorcycle. Lastly, even the single injury caused on Suresh's head was sufficient in the ordinary course of nature to cause his death. Therefore, the intention and the knowledge to kill Suresh is writ large. Hence, the learned Public Prosecutor has supported the impugned judgment. 7. Heard the learned counsel for the parties, examined the record, and perused the impugned judgment. 8. The prompt lodging of the FIR strengthens the case of the prosecution as it eliminates the possibility of exaggeration and false implication of the accused person. Hence, the learned Public Prosecutor has supported the impugned judgment. 7. Heard the learned counsel for the parties, examined the record, and perused the impugned judgment. 8. The prompt lodging of the FIR strengthens the case of the prosecution as it eliminates the possibility of exaggeration and false implication of the accused person. On the other hand, the delay in lodging of the FIR weakens the case of the prosecution; if unexplained, the delay can be fatal to it. In the present case, the alleged incident occurred at 7:30 PM and Ghanshyam (P.W.5) gave his statement in Hospital at 11:15 PM. Thus, there is delay of four and a half hours. However, Gopal (P.W.4) has explained the delay in his cross-examination : after reaching the place where Suresh was lying, initially he took Suresh to the Police Station at Nogaon. However, there was no one at the Police Station. Therefore, they proceeded to the Arnod Police Station. The police personnel at Arnod Police Station told him to immediately rush the injured to the hospital and they will follow the injured. Therefore, he took his injured brother, Suresh, to the Pratapgarh Hospital. Thus, it is obvious that while taking Suresh to Pratapgarh Hospital, they had visited both the police stations which were on the way. Moreover, it is only at the behest of the police that they first took the injured to the hospital and only subsequently gave the statement to the police at the hospital. Hence, the delay has been explained satisfactorily by Gopal (P.W.4). Since the delay has been explained, the delay is not fatal to the case of the prosecution. 9. Although, it is true that according to Ghanshyam (P.W.5) animosity existed between him and Bhuvan, however, the testimony of Ghanshyam (P.W.5) cannot be discarded by terming it to be a testimony of an inimicable witness. It is, indeed, a settled principle of law that the testimony of an inimicable witness can be relied upon provided it is corroborated by other evidence. In the present case, the testimony of Ghanshyam (P.W.5) is supported by the testimony of Dinesh (P.W.3), an independent witness Moreover, his testimony is further corroborated by medical evidence. Hence, there is no reason for distrusting his testimony. 10. Ghanshyam's testimony consists of the facts which he had narrated in his oral information to the police mentioned above. Therefore, it need not be repeated. Hence, there is no reason for distrusting his testimony. 10. Ghanshyam's testimony consists of the facts which he had narrated in his oral information to the police mentioned above. Therefore, it need not be repeated. According to Dinesh (P.W.3), Karulal (P.W.6) and he were going from village Mowai to village Diwala. According to him, they were overtaken by Ghanshyam, who was driving the motorcycle and Surersh was sitting as a pillion rider. After some time, he heard some hue and cry. Therefore, he rushed to the place of the incident. He saw that both the accused-appellants were hitting Suresh. When he intervened to rescue Suresh, he too was hit by them. He further claims that Suresh was initially taken to the Pratapgarh Hospital and subsequently referred to Udaipur Hospital. However, during his treatment, he expired. Therefore, Dinesh (P.W.3), an independent witness, corroborates the testimony of Ghanshyam (P.W.5). Furthermore, according to Dr. Akhilesh (P.W.8), Suresh had suffered a single injury by a blunt weapon on his head. Thus, his testimony corroborates Ghanshyam's testimony. Further, Dr. Akhilesh (P.W.8) belies the defence version. For, according to him, in case the motorcycle had slipped, then Suresh would have sustained more injuries than one on his body. Since Ghanshyam's testimony is corroborated by independent evidence, he is a reliable witness. Thus, the prosecution has succeeded in proving that the accused appellants had assaulted Suresh and caused injuries to him. 11. The only issue is whether a single injury caused by Bhuvan would tantamount to murder or would it tantamount to culpable homicide not amounting to murder? According to Ghanshyam (P.W.5) there was no animosity between the accused appellants and Suresh. In fact, the animosity existed between him and the appellants. If the appellants had intention to kill, obviously it would be an intention to kill Ghanshyam. However, they neither chased him, nor assaulted him. Instead, they caused a single injury on Suresh's head. Therefore, their intention could not be to kill him. Moreover, by giving a single lathi blow on his head, they could not have the knowledge that the injury is so imminently dangerous that in all probability it would cause his death. Hence, the ingredients of Section 300 IPC are conspicuously missing. Therefore, in the opinion of this Court the offence does not travel beyond Section 304 Part II IPC. 12. Hence, the ingredients of Section 300 IPC are conspicuously missing. Therefore, in the opinion of this Court the offence does not travel beyond Section 304 Part II IPC. 12. Thus, the appeal is partly allowed: the conviction is reduced from the offence under Section 302/34 IPC to Sections 304 Part II IPC read with Section 34 IPC. The sentence is reduced from life imprisonment to five years of rigorous imprisonment. The fine imposed by the learned trial court is maintained. In case the appellants fail to deposit the fine amount, the appellants shall further undergo a term of one year of rigorous imprisonment. 13. The second bail application of Ram Lal has become infructous in the light of the judgment passed in the appeal.