Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 975 (RAJ)

Gaja Ram alias Gajiya v. State of Rajasthan

2014-04-21

ATUL KUMAR JAIN, GOVIND MATHUR

body2014
JUDGMENT : Atul Kumar Jain, J. FIR No. 111/2004 was registered at Police Station, Kotwali, Barmer under Section 302 of Indian Penal Code and after investigation, the charge-sheet was submitted in the trial court and Addl.Sessions Judge (Fast Track) camp Barmer had framed a charge under Section 302 of Indian Penal Code against accused Gaja Ram alias Gajendra Jat for causing murder of two persons, namely, Upendra Prasad and Ashok Prasad on 1.5.2004 at 10.30 p.m. at Marudhar Hotel, Barmer. The accused denied the charge and after conducting the trial, Additional Sessions Judge(Fast Track), Balotra camp Barmer in Sessions Case No. 124/2004 (old No. 55/2004) by its judgment dated 27.2.2007 had convicted the accused Gaja Ram alias Gajiya alias Gajendra under Section 302 of Indian Penal Code for causing murder of two persons as mentioned in the charge and he was sentenced to rigorous life imprisonment with a fine of rupees five thousand and in default of payment of fine, he was further ordered to undergo six months rigorous imprisonment. In this case, accused was arrested on 2.5.2004 and since then he is continuously in custody because his prayer for suspension of sentence was not accepted during the hearing of this appeal. 2. Against the judgment dated 22.7.2007 passed by the trial court, the accused-appellant Gaja Ram has filed this appeal and it has been argued on his behalf that the case was not proved against him beyond reasonable doubt and still the trial court has convicted him on the basis of conjectures and surmises, though there was material improvement in the statements of the witnesses and the identification parade of accused was also not conducted as per law and procedure. It has also been argued that he was arrested from the room and his coloured photograph was also obtained from the room and by showing that coloured photograph, the witnesses were told to identify him under the wrong impression that he has committed murder of two persons, though he was not involved in the offences at all. It has also been argued that he was arrested from the room and his coloured photograph was also obtained from the room and by showing that coloured photograph, the witnesses were told to identify him under the wrong impression that he has committed murder of two persons, though he was not involved in the offences at all. Similarly, it has also been argued that the recovery of a push button knife at the instance of the accused-appellant was not proved but still on the basis of alleged recovery of blood stained knife and blood stained clothes, the accused-appellant has been found guilty under Section 302 of Indian Penal Code and, in the alternative, it has also been argued that since the accused-appellant was not proved to have any previous enmity with the deceased persons and he is in jail since the date of his arrest, so it has been prayed that he should be released on undergone sentence after converting his conviction under Section 304 Part I of Indian Penal Code. 3. On the other hand, the learned Public Prosecutor has strongly opposed the prayer of accused-appellant. It has been argued by him that clear cut statements of eye-witnesses PW-24 Raj Kumar Mahto and PW-25 Suresh Mahto cannot be ignored, who have fully supported the prosecution case. It has also been argued that soon after the judgment was pronounced by the trial court, the Presiding Officer was attacked upon the dais itself by a sharp edged stone by the accused-appellant, though no injury could have been caused to the Presiding Officer because of his alertness and the accused-appellant was convicted for the contempt of the Court on 27.2.2007 by the trial court itself in separate proceedings. This fact was mentioned by the Presiding Officer of the trial court in the impugned judgment itself at page 33 and 34. It has also been argued by the learned Public Prosecutor that the statement of PW-24 had to be kept reserved on 24.3.2005 at the request of the defence counsel on some lame excuse and then his cross-examination could have been completed only after one year,viz., on 17.4.2006 and still the witness could not be won over by the accused. 4. It has also been argued by the learned Public Prosecutor that the statement of PW-24 had to be kept reserved on 24.3.2005 at the request of the defence counsel on some lame excuse and then his cross-examination could have been completed only after one year,viz., on 17.4.2006 and still the witness could not be won over by the accused. 4. In the aforesaid background, it can be said that even if some of the prosecution witnesses have turned hostile in the case, it will not materially affect the result of the case because the star witnesses, PW-24 Raj Kumar Mahto and PW-25 Suresh Mahto have fully proved the prosecution story and on their statements alone, the accused-appellant appears to be guilty of causing murder of two persons during ordinary scuffle regarding supply of food in a hotel on priority basis. There was no previous enmity of both the deceased persons with the accused-appellant but still both of them were brutally and repeatedly stabbed by a push button knife which the accused-appellant was carrying in his pocket. 5. PW-24 Raj Kumar Mahto states that along with both the deceased persons (Upendra Prasad and Ashok Prasad ), he and Suresh Mahto had gone to take their dinner at Marudhar Hotel that night where the accused-appellant started un-necessary quarrel with Upendra Prasad regarding priority in supply of food and then the accused-appellant took Ashok Prasad (deceased) by grabbing his collar and then he attacked on Ashok Prasad repeatedly three or four times by knife on his heart and stomach and when Upendra Prasad (deceased) tried to save his friend Ashok Prasad, then Upendra Prasad was also attacked by knife by accused-appellant in his heart and stomach and then the accused-appellant ran away from the spot. The police took both the injured persons to the hospital where both of them were declared dead. Witness Raj Kumar also got injured on his right ear in the process of rescuing his friend. 6. PW-24 Raj Kumar further states that the accused-appellant was being addressed by the hotel boys as Gaja Ram Jat, so he wrote down the name of the accused-appellant on a paper in his diary to remember his name. He states that Ex. Witness Raj Kumar also got injured on his right ear in the process of rescuing his friend. 6. PW-24 Raj Kumar further states that the accused-appellant was being addressed by the hotel boys as Gaja Ram Jat, so he wrote down the name of the accused-appellant on a paper in his diary to remember his name. He states that Ex. P. 39 was lodged by him with the police and he had given the paper to the police on which he had written the name of the accused-appellant with another paper which had fallen from the pocket of the accused-appellant while he was running away and he says that on the paper which had fallen from the pocket of the accused-appellant, there was a coloured photo of accused-appellant which was matching with the accused-appellant. He further states that during the investigation, the Magistrate had asked him to identify the culprit in jail and he says that he was able to correctly identify Gaja Ram Jat before the Magistrate also. He says that memo of identification is Ex.P.31 which carries his signatures. 7. PW-24 Raj Kumar has identified the accused-appellant in the trial court also during his statement and even after long cross-examination, there appears no contradiction in the statement of this witness. He has bluntly refused that the photograph of the accused-appellant might have been recovered from the room of the accused-appellant. The statement of this witness is perfectly natural and reliable. He appears to be a trustworthy witness. No doubt he was friend of both the deceased persons but only because of this reason, his statement cannot be disbelieved. He appears to be a truly innocent and perfectly reliable witness. He has narrated the story without any manipulation. 8. Then comes the statement of PW-25 Suresh Mahto. He also states that it was only the accused-appellant who had repeatedly stabbed Ashok Prasad and Upendra Prasad causing their instantaneous death. He has fully supported the statement of Raj Kumar. He also states that the accused-appellant was being addressed by the hotel boys by name and so he came to know the name of the accused-appellant at the time of the incident itself. No infirmity has been found in the statement of this witness also. He has also proved that the identification parade of Gaja Ram by Raj Kumar Mahto was perfectly as per the rules. 9. No infirmity has been found in the statement of this witness also. He has also proved that the identification parade of Gaja Ram by Raj Kumar Mahto was perfectly as per the rules. 9. Presence of Raj Kumar Mahto and Suresh Mahto on the spot is not doubtful. The cumulative effect of the statements of these two witnesses has ruled out any doubt in the prosecution story. On the other hand, the accused-appellant has come with no defence. Even in his statement under Section 313 of Code of Criminal Procedure, he has stated that his coloured photo was taken from his room by the police and then he was introduced along with his photo at the police station itself to both the witnesses and thus he was implicated for no reason in the matter. We have no hesitation to say that infirmities in the identification parade as alleged by the accused-appellant do not exist. 10. PW-12 Shri Buddhi Prakash Chhangani, the then Additional Chief Judicial Magistrate, Balotra has stated that Ex.P.31 (memo of identification parade) was prepared by him and he states that he had also issued summons to the witnesses Raj Kumar alias Raju and Raj Kumar had correctly identified accused-appellant Gajendra in jail. He states that after the identification parade was conducted, the accused-appellant was apprehensive that his photo must have been shown to witness Raju but by his apprehension only, the accused-appellant cannot say that Raju was not able to identify him otherwise. We find no infirmity in the identification parade. No doubt, Suresh Mahto was not called for identification of the accused-appellant during the investigation, but during the court statement, he has also correctly identified the accused-appellant. Of course, the court identification usually is not a strong evidence but in the circumstances of the present case and looking to the correct identification of the accused-appellant by one of the eye-witnesses during the investigation also, it can be said that court identification done by other eye-witness Suresh Mahto is also reliable. Furthermore, a paper having photo of accused-appellant had fallen from the pocket of the accused-appellant at the time of the incident, so the defence of irregularity in this regard alleged in the identification parade becomes meaningless. 11. Another important witness is PW-11 Dr. Mangi Lal Bohra. Furthermore, a paper having photo of accused-appellant had fallen from the pocket of the accused-appellant at the time of the incident, so the defence of irregularity in this regard alleged in the identification parade becomes meaningless. 11. Another important witness is PW-11 Dr. Mangi Lal Bohra. He was a member of the Medical Board which had conducted the post-mortem of the dead bodies of Ashok Prasad and Upendra Prasad. The post-mortem report of Ashok Prasad is Ex.P.28 and he is said to have died because of haemorrhagic shock due to injury to heart. Similarly, the post-mortem report of Upendra Prasad is Ex. P. 27 and he is also said to have died because of haemorrhagic shock due to injury to heart. Details of the injuries caused to Ashok Prasad are as follows:- (Vernacular matter omitted..........Ed.) Details of injuries caused to Upendra Prasad given in the post-mortem report are as follows:- (Vernacular matter omitted..........Ed.) 12. In his cross-examination, Dr. Mangi Lal Bohra has clarified that even if the quick medical relief would have been given to Ashok Prasad or Upendra Prasad, they could not have been saved. No other important question has been asked in the cross-examination of Dr. Bohra and thus, both the post-mortem reports are duly proved by this witness and he has been able to prove that repeated fatal stab injuries were caused to both persons and they had died due to fatal injuries caused to their heart. 13. Photos of dead-bodies of both the deceased depicting their injured conditions have also been exhibited by the prosecution as Ex.P.49 to Ex. P. 55. 14. Leaving aside the witnesses, who may have become hostile, the offensive nature of accused-appellant, who had attacked even the Presiding Officer of the trial court, if we summarily go through the statements of some other witnesses, then we may say that PW-8 Bhera Ram proves the fact that the seized articles were kept 'seal intact uptill they were delivered to the Forensic Science Laboratory. PW-18 Mohan Lal, LC and PW-20 Mahipal Singh, FC also prove this fact. Forensic Science Laboratory Report Ex. P. 45 proves that the pant (patlun), soil taken from the spot, shirt, baniyan and half-pant of deceased-persons, another shirt, baniyan and pant as well as Chaku recovered at the instance of the accused-appellant, all 'seal intact were found to be having blood stains of human origin. Forensic Science Laboratory Report Ex. P. 45 proves that the pant (patlun), soil taken from the spot, shirt, baniyan and half-pant of deceased-persons, another shirt, baniyan and pant as well as Chaku recovered at the instance of the accused-appellant, all 'seal intact were found to be having blood stains of human origin. No doubt, the prosecution has not tried to prove that the blood stains were of the blood group of the deceased persons but it is also on record that the accused-appellant has also given no explanation that how the articles above mentioned were found blood stained. 15. In the above background, next important witness in the case is PW-15 Gopal Singh Bhati, the then S.H.O. of Police Station, Kotwali, Barmer. He proves that the FIR No. 111/2004 was registered on the basis of the written report (Ex.P.9) submitted by the witness Raj Kumar. He states that both the dead bodies were examined during the post-mortem by the Medical Board. He states that shirt, baniyan and half-pant worn by deceased Upendra were seized by him and the seizure-memo Ex.P.8 was prepared in this regard. Similarly, he states that Ex.P.9 is seizure memo of blood-stained clothes of deceased Ashok Prasad. He further states that the information recorded in Ex.P.41 was given to him by accused-appellant and on the basis of that information, he had recovered one blood stained push button knife from a place near the gate of Shiv Mandir where it was found buried underneath the soil at the instance of accused-appellant. He further states that accused Gaja Ram was kept ' baparda during investigation and then he was sent to the jail also while being ' baparda where he was identified by the prosecution witness Raj Kumar. He states that the prosecution witness Raj Kumar had also been injured and he was also medically examined by Dr. Bohra. The injury report of Raj Kumar has also been exhibited by him as well as by Dr. Bohra, which is Ex.P.29, wherein two abrasions were found on ear and hand of witness Raj Kumar. So presence of Raj Kumar on the spot is beyond doubt. The Investigating Officer has specifically denied the suggestion that the witness had seen the accused-appellant at the police station before conduct of the identification parade. 16. Thus, in this case, the prosecution had proved its case beyond doubt. So presence of Raj Kumar on the spot is beyond doubt. The Investigating Officer has specifically denied the suggestion that the witness had seen the accused-appellant at the police station before conduct of the identification parade. 16. Thus, in this case, the prosecution had proved its case beyond doubt. Some of the prosecution witnesses have been found hostile in the case but they may have been terrified by the act and conduct of the accused-appellant so even if they are hostile, it will not materially affect the result of the case. The seizure memo of push-button knife Ex.P.24 proves that the knife was recovered by the Investigation Officer in presence of two motbirs PW-19 Nisar Khan and PW-9 Bheru Singh. PW-9 Bheru Singh has been declared hostile but he admits to have signed Ex.P.24 voluntarily. Similarly, PW-19 Nisar Khan has also been declared hostile but he also admits that he had signed the seizure memo Ex.P.24 voluntarily and without any pressure of police. In the circumstances of the case, this Court places reliance on the statement of the Investigating Officer and it can be said that blood-stained knife was recovered on the information and at the instance of the accused-appellant. 17. DW-1 Narendra Kumar and DW-2 Shera Ram apparently appear to be false witnesses. Narendra Kumar states that the Investigating Officer had recovered a coloured photo of Gaja Ram from the room of the accused-appellant, but his statement is not reliable at all in the circumstances of the case. Similarly, DW-2 Shera Ram was said to be detained in a case of Section 302 of Indian Penal Code in Sub-Jail, Balotra, who states that Gopal Singh, C.I. had entered the jail and told the witness Raj Kumar to correctly identified the accused-appellant who was shown to the witness by the Investigating Officer in the jail itself. This statement of Shera Ram (DW-2) is also apparently false because it is nowhere the defence of the accused-appellant that he was shown to the witness Raj Kumar in the jail by the Investigating Officer. Furthermore, when the accused-appellant says that his coloured photo was shown to witness Raj Kumar, then there was no need for the Investigating Officer to enter the jail to show the accused-appellant to the witness Raj Kumar and thus, the statement of DW-2 Shera Ram is totally false and unreliable. 18. Thus, there is no substance in this appeal. Furthermore, when the accused-appellant says that his coloured photo was shown to witness Raj Kumar, then there was no need for the Investigating Officer to enter the jail to show the accused-appellant to the witness Raj Kumar and thus, the statement of DW-2 Shera Ram is totally false and unreliable. 18. Thus, there is no substance in this appeal. This is a clear cut case of murder of two innocent persons by the accused-appellant for no substantive reasons. For two murders, the murderer has been sentenced at one place only and that too by life imprisonment only. In this case, the conviction of accused-appellant under section 302 of Indian Penal Code is maintained. There is no scope for the reduction of the sentence also of the accused-appellant and so the sentence passed against him by the trial court is also upheld as such and hence the appeal of the accused-appellant Gaja Ram alias Gajiya is bereft of any force and deserves to be dismissed, which is hereby dismissed. Two copies of this judgment be sent to the concerned jail where the accused-appellant is undergoing sentence; one copy for the accused-appellant and one copy for the Jail Superintendent. The record of the trial court be sent back along with a copy of this judgment. Appeal dismissed.