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2012 DIGILAW 2252 (RAJ)

Prabhu Lal v. State of Rajasthan

2012-12-04

BELA M.TRIVEDI, NARENDRA KUMAR JAIN I

body2012
JUDGMENT 1. - The present appeal filed by the appellants-original accused namely, (1) Prabhu Lal son of Shri Dhuli Lal; (2) Biram son of Shri Dhuli Lal; (3) Ram Singh son of Shri Dhuli Lal and (4) Manohar son of Shri Duli Chand under Section 374(2) of Cr.P.C. arises out of the judgment and order dated 29.05.2003 passed by the Additional Sessions Judge (Fast Track) Court No.4, Jhalawar Camp At Aklera District Jhalwar (hereinafter referred to as 'the trial court') in Sessions Case No.49/2003, whereby the trial court has convicted the appellants-accused for the offence under Section 302 read with 34 of IPC and sentenced them to undergo life imprisonment and pay fine of Rs. 1,000/- each, in default thereof to undergo further imprisonment for a period of 1 year, and also convicted them for the offence under Section 324 read with 34 of IPC and undergo rigorous imprisonment for a period of 1 year and pay fine of Rs. 500/- each, in default thereof to further undergo imprisonment for a period of 3 months. 2. As per the case of the prosecution, an F.I.R. being No.130/02 (Exhibit P-3) came to be registered at Police Station Jhawar, District Jhalawar, against all the four appellants-accused for the offences under Sections 302, 323 read with 34 of IPC at about 09:30 p.m. on 22.09.2002, on the basis of the complaint lodged by the complainant Shri Parmal Singh son of Mathura Lal Bheel, for the incident said to have taken place at about 07:00 p.m. on the same day i.e. 22.09.2002. It was alleged by the complainant interalia that at about 07:00 p.m. his brother Mor Singh and his nephew Ram Vilas were going towards their field, and he and Bhuri Bai were also walking behind them for going to the field. When they crossed the bridge one Prabhu Lal, Ram Vilas, Biram and Manohar came running from their field on the road. Thereafter Prabhu Lal and Ram Singh caught hold of Mor Singh, and Manohar and Biram caught hold of Ram Vilas. Then they all the four took the said Mor Singh and Ram Vilas to their field, where Prabhu Lal and Ram Singh assaulted Mor Singh by giving a blow with 'gandasia' on his head and thereafter Manohar and Biram also started beating Mor Singh and Ram Vilas with 'gandasia'. Then they all the four took the said Mor Singh and Ram Vilas to their field, where Prabhu Lal and Ram Singh assaulted Mor Singh by giving a blow with 'gandasia' on his head and thereafter Manohar and Biram also started beating Mor Singh and Ram Vilas with 'gandasia'. When the complainant and Bhuri Bai went to rescue them, Ram Singh also gave him a blow with 'gandasi', and then all the four ran away from their field. 3. The Investigating Officer after carrying out the investigation, submitted the charge sheet against all the appellants-accused for the offences under Sections 307, 323, 324, 302 read with 34 of IPC in the Court of Judicial Magistrate Aklera, who committed the case to the trial court for trial. The trial court after framing the charge against all the accused, proceeded further with the trial, wherein the prosecution led oral evidence by examining as many as 12 witnesses and also adduced documentary evidence in support of its case. On the completion of the evidence of the prosecution, the statements of the appellants-accused were recorded under Section 313 of Cr.P.C., wherein they denied the allegations levelled against them and claimed to be innocent. The trial court after appreciating the evidence on record and hearing the learned counsels for the parties convicted and sentenced the appellants-accused by the impugned judgment as stated hereinabove. 4. Learned counsel for the appellants Mr. S.S. Hasan, taking the Court to the evidence adduced by the prosecution before the trial court, submitted that the prosecution had not come out with clean hands inasmuch as no such incident in the manner alleged by the prosecution had taken place. According to Mr. Hasan, it was the deceased Mor Singh and others, who had come to the field of the accused for raising a quarrel and there was no occasion for the accused to drag the deceased Mor Singh from the road to the field of the accused, which was at a quite distance. Mr. Hasan, relying upon the arrest memos at Exhibits P-20 to P-22 submitted that the accused had also sustained some injuries, which have not been explained by the prosecution. Mr. Hasan, relying upon the arrest memos at Exhibits P-20 to P-22 submitted that the accused had also sustained some injuries, which have not been explained by the prosecution. He further submitted that there were number of contradictions appearing in the versions of the so-called eyewitnesses examined by the prosecution and said versions of the eye-witnesses also did not corroborate the medical evidence, more particularly the injuries mentioned in the Post Mortem Report, Exhibit P-19. Lastly, Mr. Hasan submitted that the prosecution had also miserably failed to prove the motive of the accused to cause the murder of the deceased, and hence the appellants-accused deserve to be granted benefit of doubt. 5. However, the learned Public Prosecutor Smt. Rekha Madnani for the State vehemently submitted that there were four eye-witnesses to the incident who have been examined by the prosecution and they have fully supported the case of the prosecution. According to her, except minor discrepancies in their respective evidence, there was nothing on record to discard their testimonies or the case of the prosecution. Smt. Madnani has placed heavy reliance on the decision of the Apex Court in the case of Shivappa and Others v. State of Karnataka, (2008) 11 SCC 337 to submit that inadvertent statements of the witnesses could not be a ground to disbelieve their version and that minor discrepancies in the statements of the witnesses would also not justify rejection of the testimonies of the eye-witnesses, if they are otherwise found reliable. Relying upon the decision of the Apex Court in case of Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 , she submitted that when the witnesses to the occurrence themselves were injured in the incident, the testimonies would generally be considered very reliable. According to her, the accused neither during the course of cross-examination of witnesses nor in their respective further statements recorded under Section 313 of Cr.P.C. had come out with any defence that the deceased and others had gone to the field of the accused with the intention to fight with them, and on the contrary, the prosecution had proved by leading cogent evidence that the accused armed with the weapon 'gandasiya' had assaulted the deceased Mor Singh and other eyewitnesses and that Mor Singh succumbed to the injuries. She also submitted that the medical evidence of incised wound injuries found on the body of the deceased also corroborated the versions of the eye-witnesses. In short, she submitted that the trial court having rightly appreciated the evidence on record, the impugned judgment deserves to be confirmed. 6. In a instant case, there are certain undisputed facts which have come on record. It is not disputed that alleged incident had taken place at about 07:00 p.m. on 22.09.2002 and the F.I.R. was registered on the same day at about 09:30 p.m. on the basis of the complaint lodged by the complainant Parmal Singh. It is also not disputed that the alleged incident had taken place in the field of the accused. The presence of the all the four accused at the time of alleged incident has also not been disputed by them either during the course of cross examination of the eye-witnesses examined by the prosecution or in the statements recorded under Section 313 of Cr.P.C. On the contrary by relying upon the so-called minor injuries mentioned in the arrest memos, Exhibits P-20 to P-22, the learned counsel for the appellants had sought to submit that the accused were also injured in the alleged incident, meaning thereby they were present at the time of incident. 7. So far as the oral evidence adduced by the prosecution is concerned, the prosecution had examined as many as twelve witnesses, out of which four witnesses i.e. PW-1 to PW-4 were the eye-witnesses and they had fully supported the case of the prosecution as alleged in the complaint. The names of all the four eye-witnesses find place in the F.I.R. itself, which was registered within two hours of the alleged incident. Not only that, the complainant PW-2 Parmal Singh and PW-4 Ram Vilas had also sustained injuries and they were treated by the same Dr. Nitendra Kumar, PW-9 who had carried out Post Mortem of the deceased Mor Singh. The injuries certificates are on record at Exhibits P-17 to P-18. Under the circumstances, the Court has no reason to disbelieve their presence at the time of alleged incident. The defence has also not brought anything on record during the course of cross examination or otherwise to constrain the Court to disbelieve their versions, or to hold that the said eye-witnesses had falsely implicated the accused in the alleged incident. 8. Under the circumstances, the Court has no reason to disbelieve their presence at the time of alleged incident. The defence has also not brought anything on record during the course of cross examination or otherwise to constrain the Court to disbelieve their versions, or to hold that the said eye-witnesses had falsely implicated the accused in the alleged incident. 8. All the four eye-witnesses i.e. PW-1 Bhuri Bai; PW-2 Parmal Singh; PW-3 Laxmi Narayan and PW-4 Ram Vilas in the respective evidence before the court have stated in detail as to how the incident had taken place and corroborated the contents of the complaint which was registered within two hours of the incident. There are no major contradictions or discrepancies appearing in their respective evidence. As rightly submitted by the learned Public Prosecutor, relying upon the decision of the Apex Court in the case of Shivappa and Others v. State of Karnataka (supra), the minor discrepancies or inconsistencies could not be a ground to disbelieve the testimonies of the eye-witnesses, if they are otherwise found reliable. Some discrepancies are bound to occur because of sociological background of witnesses as also the time gap between the date of occurrence of incident and date on which they give their depositions in the court. 9. In the instant case, the cause of death of the deceased Mor Singh as mentioned in the Post-Mortem Report, Exhibit P-19 was, as a result of brain injury. There were four incised wound injuries mentioned in column 5 of the said report. The incised wound injury on the head of the deceased was found to be fatal. It is pertinent to note that as such PW-9 the doctor who had treated the witnesses Shri Parmal Singh and Shri Ram Vilas, and who had carried out the Post-Mortem of the deceased Mor Singh, was not cross examined by the defence in the cross examination, as regards the injuries sustained by them and the medical certificates issued by the said witnesses. Hence the medical evidence in the form of injuries certificates of the eye-witnesses and the Post-Mortem Report of the deceased have remained practically unchallenged at the instance of the accused before the trial court. 10. Hence the medical evidence in the form of injuries certificates of the eye-witnesses and the Post-Mortem Report of the deceased have remained practically unchallenged at the instance of the accused before the trial court. 10. The alleged weapons i.e. gandasias were also recovered during the course of investigation from the field and house of the accused as per the information disclosed by accused under Section 27 of the Evidence Act. The evidence of the Investigating Officer in this regard has also remained unchallenged at the instance of the accused. 11. Though it was sought to be submitted by the learned counsel for the appellants Mr. S.S. Hasan, that there were some minor injuries found on the person of the three accused i.e. Prabhu Lal, Biram and Ram Singh, which have remained unexplained at the instance of the prosecution, the Court does not find any substance in the said submission. As mentioned here in above, no such defence was put forth by the accused in the cross-examination of the prosecution witnesses or in their statements recorded under Section 313 of Cr.P.C. to the effect that the deceased along with the complainant and others had come to the field of the accused and assaulted the accused. It is needless to say that as per the settled legal position, the prosecution is not obliged to explain such injuries found on the person of the accused more particularly when there were no questions put by the defence in the cross-examination of the prosecution witnesses regarding such injuries. The Apex Court in the case of Ram Pyare Mishra v. Prem Shankar and Others, (2008) 14 SCC 614 has considered the law with regard to the non-explanation of the superficial injuries on the person of the accused persons and in para 18 of the said judgment, it has been observed as under:- "18. So far as non-explanation of superficial injuries on the accused persons is concerned, in Anil Kumar v. State of U.P., ( 2004 (13) SCC 257 ) , it was held as follows: "Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh and Ors. v. State of Bihar ( AIR 1972 SC 2593 ) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh and Ors. v. State of Bihar ( AIR 1988 SC 863 ) , it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of prosecution case. (See Surendra Paswan v. State of Jharkhand (2003) 8 Supreme 476 )." 12. Though it was sought to be submitted by learned counsel for the appellants Mr. Hasan that the aspect of motive of the accused was not proved by the prosecution, the Court also does not find any merit in the said submission. As per the settled legal position, the proof of motive recedes into the background in cases where the prosecution relies upon the eye-witnesses who were found to be present at the time of occurrence of the incident in question. As per the settled legal position, the proof of motive recedes into the background in cases where the prosecution relies upon the eye-witnesses who were found to be present at the time of occurrence of the incident in question. A beneficial reference of the decisions of the Apex Court in the cases of Sheo Shankar Singh v. State of Jharkhand and Anr., (2011) 3 SCC 654 ; Shivaji Genu Mohite v. The State of Maharashtra, (1973) 3 SCC 219 ; and State of Uttar Pradesh v. Kishanpal and Others, (2008) 16 SCC 73 deserves to be made in this regard. In the instant case, the prosecution relying upon the evidence of eye witnesses coupled with medical evidence had duly proved the charges levelled against them before the trial court. The involvement of all the four appellants in the incident in question and their common intention to commit the alleged offences having been duly proved by the prosecution, they have been rightly held guilty by the trial court for the offences under Section 302 read with Section 34 and Section 324 read with Section 34 of IPC. 13. In view of the aforesaid discussed evidence and legal position, we are of the view that the trial court has rightly appreciated the evidence on record for convicting of the appellants-accused for the alleged offences and learned counsel for the appellants has failed to point out any illegality or perversity in the impugned judgment. The appeal, therefore, being devoid of merits deserves to be dismissed and the same is accordingly dismissed. 14. Since the appellants-accused Biram son of Shri Dhuli Lal and Manohar son of Shri Duli Chand were enlarged on bail during the pendency of this appeal, their bail bonds are cancelled and they are directed to surrender before the trial court and trial court is directed to take necessary steps for their custody, in case they do not surrender and to send them in jail for undergoing their remaining sentence.Appeal dismissed. *******