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2015 DIGILAW 1722 (RAJ)

Daulat Ram v. State of Raj.

2015-09-29

GOVIND MATHUR, JAISHREE THAKUR

body2015
JUDGMENT : Jaishree Thakur, J. The present D.B. Criminal Appeal has been filed against the judgment dated 27.3.2010 passed by the learned Sessions Judge, Chittorgarh sentencing the appellant to life imprisonment under Section 302 Indian Penal Code along with a fine of Rs. 5000/- and, in default of payment of fine, to further undergo one month's simple imprisonment. 2. Brief facts of the case are that a report was lodged by Bal Chand at Police Station, Rawatbhata to the effect that on the night of 23.5.2009 at about 9.30 p.m., the deceased Kalu Lal and he were returning at night after having dinner at the house of Ram Ratan Meena. Kalu Lal was ten steps ahead of him. As they approached the house of Daulat Ram Meena, Daulat Ram came out with an axe and hit Kalu Lal on his head two to three times, with the result his brother Kalu Lal fell down. At the same time, Gopal and Bhairu Lal who were walking behind them reached the spot. Kalu Lal was taken to the RAPP Hospital, Rawatbhata, where he died. It was stated in the report that Kalu Lal was demanding money from Daulat Ram and there had been altercation between both during the day. On the basis of this complaint, an FIR was lodged against appellant Daulat Ram. After investigation, charge-sheet was submitted and the case was committed to the court of Sessions. The appellant was charged for the offence under Section 302 of Indian Penal Code. 3. In support of its case the prosecution examined PW-1 Bal Chand, PW-2 Gopal, PW-3 Kailash, PW-4 Vijay Singh, PW-5 Kamal Singh, PW-6 Usman Gani, PW-7 Deravar Singh, PW-8 Prem Singh, PW-9 Shiv Raj Singh, PW-10 Dan Singh and PW-11 Dr. Ummaid Singh. The appellant was charged for the offence under Section 302 of Indian Penal Code. 3. In support of its case the prosecution examined PW-1 Bal Chand, PW-2 Gopal, PW-3 Kailash, PW-4 Vijay Singh, PW-5 Kamal Singh, PW-6 Usman Gani, PW-7 Deravar Singh, PW-8 Prem Singh, PW-9 Shiv Raj Singh, PW-10 Dan Singh and PW-11 Dr. Ummaid Singh. Exhibit P1 is written complaint, Exhibit P 2 FIR, Exhibit P3 Fard Surathal Lash, Exhibit P 4 Crime Details Form, Exhibit P 5 Fard Panchnama Lash, Ex.P.6, Ex.P. 7, Ex.P. 9 and Ex.P. 10 forms of property search and seizure, Ex.P. 8 recovery memo of axe, Ex.P. 11 and Ex.P. 12 letters of S.P. sent to FSL for examinations of various articles, Ex.P.13 memo regarding handing over the dead body, Ex.P. 14 arrest memo of accused Daulat Ram, Ex.P. 15 memo of information given by accused u/s 27 of the Evidence Act, Ex.P. 16 FSL Receipt, Ex.P. 17 and Ex.P. 18 letters of Gram Panchayat, Badodiya, Ex.P. 19 Post-mortem Report, Ex.P. 21 Register of seized stolen property and Ex.P. 21 FSL Report. 4. Statement of appellant was recorded under Section 313 of the Code of Criminal Procedure. In defense, no evidence was produced by the appellant. 5. PW-1 Bal Chand, brother of the deceased Kalu Lal has stated that his brother Kalu Lal was demanding a sum of Rs. 5,000/- for a tractor from the appellant. Bal Chand further stated that there was an altercation between his brother and the appellant regarding the amount during the day and it was on this count that the appellant attacked and killed his brother. Bal Chand is an eye-witness to the occurrence that took place on the night of 23.5.2009. He has confirmed the report Ex.P.1 as bearing his signature as well as Ex.P.2 FIR bearing his signature. He has also confirmed Ex.P.3 Fard Surat-lash as bearing his signature as well as Ex. P. 4 form of crime details. 6. PW-2 Gopal is also an eye-witness to the occurrence and has stated that he along with Bhairu Lal, Kalu Lal and Bal Chand were returning from the house of Ram Ratan Meena after taking a meal around 9.30 p.m. Daulat Ram who was standing at the door outside his house and when they approached the house of appellant, the appellant hit Kalu Lal three times on the head with an axe. On receiving the axe blows, Kalu Lal, deceased fell on the ground. It is further stated by witness PW-2 Gopal that he along with Bal Chand, Bhairu Lal picked up Kalu Lal and took him to the RAPP Hospital, Rawatbhata in a bus belonging to Mansuri. It is further stated that he had knowledge of the fact that the deceased Kalu Lal was demanding a sum of Rs. 5000/- from the appellant and it is on this account that the incident occurred. 7. PW-3 Kailash is a witness to Ex.P.5-Panchnama Lash and has identified his signatures on it and Ex.P.6-seizure memo of blood stained clothes. He has also stated that the axe was recovered from the house of the appellant. PW-4 Vijay Singh is also a witness to Ex.P.5, Ex.P6, Ex.P.7 and Ex.P.8. PW-5 Kamal is witness to Ex.P.4 and ExP.10. 8. PW-7 Deravar Singh is the Investigating Officer, who has stated that Bal Chand came to the Police Station to lodge the report which is Ex.P.1, on the basis of which an FIR Ex.P.2 was lodged. He has further stated that he prepared Ex.P.3-Fard Surathal Lash, Ex.P.5-Panchnama Lash, which bear his signatures. He has also prepared site plan Ex.P.4. The clothes of the appellant were removed and sealed in presence of motbir witnesses and memo Ex.P. 6 was prepared. He has further stated that from the site, blood stained soil and controlled soil were taken and sealed and Ex.P. 10 was prepared. Packet of blood soil was marked as 'B', packet of controlled soil was marked as 'C' and packet of safi was marked as 'D' and packet of clothes of deceased was marked as 'A'. The blood stained axe was sealed in a packet and marked as exhibit E and blood stained vest of the accused was sealed in a packet and marked as exhibit X. It is further stated that sealed packets were sent to the FSL for serological examination. In all six packets were sent. 9. PW-11 Dr. Ummaid Singh has stated that on 24.5.2009 he was on duty in the Hospital at Rawatbhata and he conducted the post-mortem on the body of deceased Kalu Lal. The description of the injuries caused was given in the post-mortem report, which is Ex.P.19. The cause of death was due to multiple head injuries and cerebral hemorrhage. 10. 9. PW-11 Dr. Ummaid Singh has stated that on 24.5.2009 he was on duty in the Hospital at Rawatbhata and he conducted the post-mortem on the body of deceased Kalu Lal. The description of the injuries caused was given in the post-mortem report, which is Ex.P.19. The cause of death was due to multiple head injuries and cerebral hemorrhage. 10. The statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure wherein he denied the charges and claimed trial. The appellant though given opportunity to produce his defense did not choose to do so. 11. The learned trial court after appreciating the evidence on record convicted and sentenced the appellant under Section 302 of the Indian Penal Code as aforesaid. 12. The appeal has been filed challenging the order passed by the learned Sessions Judge on the ground that there is a discrepancy in the statements of the eye-witnesses. It is contended that the eye-witness Bal Chand has stated that Kalu Lal was attacked from behind by appellant Daulat Ram, whereas the second eye-witness Gopal has stated that appellant Daulat Ram attacked the deceased from front. It is further argued that there is nothing on record to prove the fact that there was any enmity between the parties concerned or that an altercation had taken place between the deceased Kalu Lal and the appellant herein for a sum of Rs. 5000/-. It is further argued that the incident alleged to have occurred on the night of 23.5.2009 at 9.30 at night and the eye-witnesses were at a distance of 20 ft., so they were not in position to identify who the assailant was. 13. Per contra, the counsel appearing for the State has argued that the judgment and conviction of the appellant should be upheld since the whole attack has been witnessed by two witnesses and it is on account of fatal head injuries received on account axe blows that Kalu Lal succumbed to injuries. 14. We have heard the learned counsel for the parties and have perused the entire record and are unable to agree with the contentions raised by the learned counsel for the appellant. 15. 14. We have heard the learned counsel for the parties and have perused the entire record and are unable to agree with the contentions raised by the learned counsel for the appellant. 15. The investigating office PW-7 Deravar Singh has followed a correct and detailed procedure while collecting evidence such as blood stained soil, control soil, blood stained clothes of the deceased as well as the blood stained clothes of the appellant while putting them in separate sealed packets and has also associated independent witness who have stepped into the witness box to identify their signatures on recovery and seizure memos. 16. PW-11 Dr. Ummaid Singh has conducted the post-mortem and proved the postmortem report which is as Ex.P.19 on record. The post mortem report shows that the death of Kalu Lal was "due to ante-mortem head injury, which injury to vital organ brain which is sufficient to cause death in its natural course." The injuries as received by the deceased are:- "(1) 5X1½x bone deep Rt. temporal parietal region with Rt temporal bone with cerebral Haemorrhage. (2) 6X1½xbone deep Central Franto Parietal region with of Franto Parietal bone in middle, with cerebral haemorrhage. (3) 4x1 cm x muscle deep left mandibular region." 17. There are two eye-witnesses to the occurrence, namely, PW-1 Bal chand and PW-2 Gopal, who have in categorical terms, stated that Daulat Ram attacked Kalu Lal with an axe and inflicted three injuries on his head. The injuries inflicted were of such a grievous nature which resulted in the immediate collapse of Kalu Lal who was taken immediately to the hospital where he was declared dead. The counsel for the appellant has not been able to show the discrepancy in the statements of the eye witnesses. Merely on account of the fact that one witness has stated that Kalu Lal was attacked from behind and the other has stated that he was attacked from front, will have no material bearing specially when in no uncertain terms it has been stated that Kalu Lal was attacked by Daulat Ram with an axe and hit on the head. Merely on account of the fact that one witness has stated that Kalu Lal was attacked from behind and the other has stated that he was attacked from front, will have no material bearing specially when in no uncertain terms it has been stated that Kalu Lal was attacked by Daulat Ram with an axe and hit on the head. The other argument raised by the counsel for the appellant that it was 9.30 at night and it would not be possible at that time to identify the assailant is also not tenable on account of the fact that the distance between the witnesses and attack was not more than 20 feet. At such a short distance it is not possible to mistake the identity of the assailant. 18. The serological report Ex.P.21 confirms the blood stains of blood Group-'B' on the soil, on shirt, baniyan belonging to the deceased, as well on the blood stained axe recovered from the house of the appellant, and the baniyan of the appellant. A blood stained axe was recovered from the house of the appellant matching the blood group found on the blood stained clothes of the deceased. Even the blood found on the baniyan/vest of the appellant matched blood group of the deceased. The appellant has not been able to explain as to how blood of the deceased was on his clothes which also links the appellant to the death of the deceased. 19. There is positive evidence adduced by the prosecution to establish the commission of the crime by the appellant. Two eye witnesses have stepped into the witness box and there is nothing to show that they are not reliable witnesses. Apart from the two eye witnesses the prosecution has also lead sufficient evidence to link the appellant to the crime by recovering blood stained clothes and an axe from his residence which have the same blood group of the deceased. 20. In our considered opinion, therefore, it would be safe to hold that the prosecution has established its case against the appellant accused beyond a reasonable doubt. 21. Resultantly the appeal which is devoid of merit is hereby dismissed. Conviction and sentence for the offence under Section 302 IPC is hereby affirmed and maintained.