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2018 DIGILAW 1047 (RAJ)

Pooran Mal Son of Hanuman v. State of Rajasthan

2018-04-23

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT : Mohammad Rafiq, J. At the outset, it may be noted that out of the four accused-appellants, who have been convicted, three namely; Mala Ram S/o Babu Ram, Mala Ram S/o Birdha Ram (appeal no.461/1988) and Kalu Ram S/o Sheokaran (appeal no.458/1988) have already died during the pendency of the appeals. The appeal no.458/1988 filed by Kaluram was dismissed as having abated by this Court vide order dated 1st April, 2010. The appeal no.461/1988 qua the appellants Mala Ram S/o Babu Ram and Mala Ram S/o Birdha Ram is therefore also taken to have abated. Appeal now survives in respect of accused-appellant Pooran Mal. 2. This appeal is directed against the judgement dated 30.11.1988 passed by Additional Sessions Judge, Neem Ka Thana in Sessions Case No.15/1986, whereby accused-appellants have been convicted for offence u/s.302/34 IPC and sentenced to imprisonment of life with fine of Rs.100 and also for offence u/s.323/34 IPC sentenced to three months rigorous imprisonment. All the sentences were ordered to run concurrently. 3. Brief facts giving rise to this appeal are that an FIR was lodged by the complainant Nahar Mal Meena Son of Shri Parta Ram Meena on 08.02.1986 at 7:15 AM in Police Station, Patan (Sikar) regarding an incident, which took place on 07.02.1986 at about 8-9 PM. It was alleged in the report that when in the morning, he was passing by the house of Malaram and Kanaram Sons of Hanuman Meena, he listened the sound of weeping (‘barghora’) from the house of the said Shri Malaram and Kanaram. Thereupon, he went inside the house where the mother of the said Malaram and Kanaram told him that two persons namely; Kailash Ahir and Girdhari Ahir came to their house to call Malaram and Kanaram to Raipur mode. When they reached there, they found the accused appellants sitting there with one other accused Kaluram Keer also and all of them gave beating to Malaram and Kanaram with ‘lathis’ and ‘kulhari’, as a result of which Malaram died on the spot. 4. On receipt of the report aforementioned case, FIR No.8/1986 for offence under Sections 302 and 307 IPC was registered against the accused-appellants at Police Station Patan, Sikar and investigation commenced. During the course of investigation, on the same day the accused appellants were arrested by the police. 4. On receipt of the report aforementioned case, FIR No.8/1986 for offence under Sections 302 and 307 IPC was registered against the accused-appellants at Police Station Patan, Sikar and investigation commenced. During the course of investigation, on the same day the accused appellants were arrested by the police. At the time of arrest of the accused appellants, police prepared panchnama under Section 174 Cr.P.C. and the injured as well as the deceased was taken to hospital and started the proceedings of investigation into the matter. After completion of the investigation, the police submitted challan in the court of the learned Munsiff-cum-Judicial Magistrate, 1st Class, Neem-ka-thana (Sikar) under Sections 302/34 and 307/34 IPC in the names of the accused appellants and after taking cognizance, the learned Munsiff-cum-Judicial Magistrate, Neem-ka-thana committed the case to the Court of Sessions, Sikar for trial wherefrom, it was transferred to the court of Additional Sessions Judge, Neem-Ka-Thana. Charges were framed against the accused-appellants, who denied the charges and claimed to be tried. During the trial from the side of the prosecution, 17 witnesses were examined. The accused appellants were examined under Section 313 Cr.P.C. After hearing arguments on both the sides, the learned trial court vide impugned judgment and order dated 30.11.1988, convicted the accused-appellants for offence under Section 302/34 IPC and sentenced them to life imprisonment with a fine of Rs. 100/-; and for offence under Section 323/34 IPC, the accused-appellants were sentenced to 3 months rigorous imprisonment. Hence this appeal. 5. Shri Vidhyut Gupta, learned counsel for the accused-appellants has argued that the findings arrived at by the learned trial court are contrary to the law, facts and material on record thus, the conviction and sentence awarded to the accused appellants is patently illegal and perverse and therefore, the judgment and order of the trial court is liable to be quashed and set aside by this court. 6. It is contended that the trial court grossly erred in awarding the sentence to the accused-appellants while not taking into consideration pertinently the statements of the prosecution witnesses. There are numerous contradictions in the statements of the prosecution witnesses which were recorded under Section 161 Cr.P.C. as well as before the court during the trial. 7. Learned counsel submits that the trial court has committed an illegality in convicting the accused-appellants on the basis of common intention of the accused appellants. There are numerous contradictions in the statements of the prosecution witnesses which were recorded under Section 161 Cr.P.C. as well as before the court during the trial. 7. Learned counsel submits that the trial court has committed an illegality in convicting the accused-appellants on the basis of common intention of the accused appellants. The trial court did not apply its mind in arriving at that findings and not taking into consideration that not even a single prosecution witness has stated in their statement that there was a common intention on the part of the accused appellants. Even the incident took place all of a sudden and on the spur of moment without any premeditation or pre-plan on the part of accused appellants. When the incident had happened all of a sudden, common intention cannot be attributed to the accused appellants. 8. It is contended that not a single witness has followed the doctrine of res-gestae or part of transaction which is necessary to implicate and connect all the accused appellants on the same facts and grounds and it has not been considered by the trial court while passing the judgment, therefore, the findings arrived at the learned trial court are totally baseless. 9. Learned counsel contended that the trial court has grossly erred in considering the statements of the prosecution witnesses and awarding the sentence to the accused appellants on the basis of such statements particularly two prosecution witnesses namely; Nahar Mal Meena (PW1) and Nathu Kumhar (PW2). These were the only eye witnesses amongst all the prosecution witnesses who could have told the whole story of the quarrel, which took place between the deceased, Malaram and the injured Kanaram whereas even in the statements of these two eye witnesses, there is no corroboration to each other at all and both of them narrated different stories. On the basis of statements of such so called eye witnesses, who are not at all reliable, the findings cannot be based. The trial court has grossly erred in relying upon the statements of these two so called eye witnesses only, which are full of contradictions and has erred in awarding sentence to the accused appellants. 10. It is contended that the FIR was lodged by Nahar Mal Meena whose position in this whole case has been only of a hearsay. He is in close relation of the deceased Malaram and the injured Kanaram. 10. It is contended that the FIR was lodged by Nahar Mal Meena whose position in this whole case has been only of a hearsay. He is in close relation of the deceased Malaram and the injured Kanaram. There are contradictions in the statement of Kanaram and Nathuram, who are the attesting witnesses to site plan, seizure memo, recovery memo arrest memo and the postmortem also injury reports of the deceased as well as of injured. The injury report and the postmortem report of the deceased do not at all corroborate each other as well as the prosecution story and the statement of the prosecution witnesses. Even the injury which was caused to the deceased and the injured by weapons, do not at all corroborate the story of the prosecution witnesses. 11. It is contended that it is proved beyond all reasonable doubts that 20 bags of one Girdhari Ahir had been taken away by theft by someone and in search of these bags, prosecution witnesses Girdhari Ahir and Kailash Ahir came at the house of the deceased and injured and sudden provocation would have happened between both the parties on the issue of theft of 20 bags and they might have inflicted injuries on the person of Malaram and Kanaram and while their presence is proved by all the witnesses, but this consideration has been totally ignored by the learned trial court. The learned trial court has erred in considering the blood examination report as well as the report of Forensic Science Laboratory. It cannot be clarified by these reports that the blood which was seized by the investigation agency, was the blood of the deceased or of the injured only and none else and other technicalities wherein there is no corroboration with the expertise statements as well as the statements of the prosecution witnesses have been absolutely ignored by the court. It is therefore prayed that the impugned judgment be set aside. 12. Smt. Sonia Shandilya, learned Public Prosecutor opposed the appeal and supported the impugned judgment. She submitted that there is ample evidence against the accused-appellants to convict them for the alleged offence. No interference ought to be made in the impugned judgment. The appeal be therefore dismissed. 13. We have given our anxious consideration to the rival submissions and perused the material on record. 14. She submitted that there is ample evidence against the accused-appellants to convict them for the alleged offence. No interference ought to be made in the impugned judgment. The appeal be therefore dismissed. 13. We have given our anxious consideration to the rival submissions and perused the material on record. 14. As far as informant Nahar Mal is concerned, he as per his own showing, was not an eye witness because he has stated that he on hearing the sound of hue and cry from the house of the deceased, went to the place of incident and found that Mala Ram had already died and that on enquiry, his mother informed him as to who caused the injuries and then he had mentioned the name of the accused as the assailants. However, Kanaram (PW2) and Nathu (PW3) have appeared as eye witnesses, apart from Girdhari (PW4) and Kailash Ahir, who were said to be present in the earlier part of the incident, but it is alleged that they fled away from the scene of occurrence when the incident started. We have to therefore scrutinise the testimony of these witnesses to find out whether the conviction of the accused-appellant for offence u/s.302 /34 IPC can be upheld and if not so, for what offence, he ought to be convicted. 15. The trial court in para 30 of the judgement has discussed the genesis of the incident and also held that the common intention to commit murder of the deceased-Mala Ram was developed amongst the accused at the spot itself. As regards the motive, the learned trial court has observed that there is absolutely no evidence on record to suggest as to what was the motive of the accused to commit murder of Malaram and to also caused injuries to Kanaram Meena. There was no previous enmity between the parties. The reason that was extended by the prosecution that one day before the incident 20 empty gunny bags (‘Bori’) and one blanket (‘kambal’) of Kailash and Girdhari were misplaced or were stolen by someone, which has nothing to do with the accused, but the trial court held that mere absence of motive does not in the face of the eye witnesses account entitle the accused to claim any benefit of doubt. The trial court has noted that since the gunny bags and the blanket of Kailash and Girdhari were stolen and in search of that, they came to Raipur mode where Mala Gujar met them, but he denied having stolen the articles, but he mentioned Mala Ram and Kana Ram Meena as the possible thieves. On a doubt being expressed by him, Kailash and Girdhari went to the house of injured Kanaram and deceased Malaram Meena and taken them to Raipur mode and it is on that place that certain altercation took place between the accused-appellants on the one hand and the deceased and injured on the other. The trial court held that it is at that stage that the accused suddenly developed common intention to commit murder of deceased. 16. When we examine the statement of eye witnesses, we find that Kana Ram (PW2) has also admitted that Girdhari and Kailash came to their house and told them that doubt was being expressed by certain people that they could have committed theft of the gunny bags and the blanket and for that reason they were being summoned by some persons at Raipur Mode, therefore, he along with Mala Ram Meena went to the Raipur Mode. Mala Ram Gujar, Langda, Pooran Keer (present appellant), Kalu Keer and Mala Keer were present there in the hotel of Nathu Kumhar. This witness has stated that he and his brother denied having committed any theft. Thereupon, Mala Gujar and Pooran Keer, the present appellant, started abusing them. Mala Ram Gujar inflicted a ‘kulhari’ blow on the head of his brother-Mala Ram S/o Hanuman. Pooran, Kalu and Mala Keer inflicted ‘lathi’ blows on the body of the brother of this witness. Then this witness stated that the accused inflicted 3-4 injuries on his head by ‘kulhari’ and thereafter gave him beatings by ‘lathis’. He also stated that immediately after the incident started, Kailash and Girdhari fled away from the scene of occurrence. His brother fell on the ground and died on the spot. The accused dragged his dead body and threw the same near the main road. On hearing their hue and cry, his mother and wife also arrived at the place of occurrence and they had seen the incident. Then they took him to their house. This witness has stated that he narrated the entire story to his mother and wife. The accused dragged his dead body and threw the same near the main road. On hearing their hue and cry, his mother and wife also arrived at the place of occurrence and they had seen the incident. Then they took him to their house. This witness has stated that he narrated the entire story to his mother and wife. The mother of this witness Sarli has appeared as PW9 and his wife Durgi has appeared as PW6. They tried to name all the accused, but in view of the statement of injured Kana Ram (PW2), they cannot be accepted as eye witness. They are essentially the witnesses of hearsay. In cross examination when it was put to Kana Ram (PW2) that whether the injuries were caused to him and his brother from sharp side of ‘kulhari’, his affirmative reply was that such injury was caused by sharp side of the ‘kulhari’. Obviously, this witness is exaggerating his statement and not speaking complete truth. Not only that, he did not receive any injury by sharp edged weapon as none of his 15 injuries were incised wound and all injuries are either lacerations or contusions or abrasions. Besides, none of the nine injuries sustained by the deceased was caused by sharp edged weapon. The injury report of Kana Ram (Ex.P24) and the postmortem report of Mala Ram (Ex.P25) have been proved by Dr. Mohan Lal Gilowa (PW16), who in cross examination has stated that neither of them sustained any injury by sharp edged weapon. 17. In the normal course testimony of witnesses cannot be discarded only because he happens to be related to the deceased, but in a case where he is proved to be exaggerating or making a false statement, his statement is required to be subjected to greatest amount of scrutiny to cull the truth out of the falsehood by applying the principle of separating grain from the chaff. 18. In the above context, the statement of Nathu (PW3), who was the hotel owner where the incident took place assumes significance. In the facts of the case, this witness has to be accepted as an independent witness. Nathu (PW3) has stated that when the accused and other persons demanded from the deceased and injured the explanation about the theft, they denied having committed any theft. In the facts of the case, this witness has to be accepted as an independent witness. Nathu (PW3) has stated that when the accused and other persons demanded from the deceased and injured the explanation about the theft, they denied having committed any theft. Mala Ram Gujar, Pooran Keer, Kalu and Mala Ram Keer then subjected the deceased Mala Ram and injured Kana Ram to beating. Mala Ram had ‘kulhari’ and Mala Ram Keer and Kaluram Keer had ‘lathis’. They subjected both the injured and deceased to ‘lathis’ and Pooran did not have any weapon. Then this witness has stated that Pooran was empty handed and he did not give any beating to either deceased or injured. The trial court in para 35 of the judgment has however not relied on this part of the statement of Nathu by observing that eventually in his statement Nathu has stated that Pooran picked up a ‘chhadi’ (thin dry wood of a tree) and therefore it cannot be said that he did not participate in the incident. No doubt Nathu (PW3) at the bottom of his examination in chief has stated that after Mala Ram Meena fell near the ‘chhapar’ of his hotel, Mala Ram Gujar and Pooran Keer then dragged his body and threw it slightly away from the hotel. When the accused fled away from there, the mother and wife of Kana Ram came there and they took Kana Ram to their house and thereafter the mother of Kana Ram came back to the place of occurrence with Banwari and Leelaram and take away the dead body of Mala Ram Meena. Then this witness by way of after thought further stated that Pooran Keer also fled away with the other accused. Though Pooran was empty handed, but after the incident of ‘marpeet’, he picked up a ‘chhadi’ and with the help of it, he too subjected the deceased beatings. This witness has even stated that Mala Ram Gujar inflicted injuries to the deceased by ‘kulhari’, but he could not say whether its injury was caused to him by sharp side or by the blunt side of the ‘kulhari’. Then ‘chhadi’ cannot be strictly speaking considered to be a weapon of any consequence, not even equivalent to a ‘lathi’. 19. This witness has even stated that Mala Ram Gujar inflicted injuries to the deceased by ‘kulhari’, but he could not say whether its injury was caused to him by sharp side or by the blunt side of the ‘kulhari’. Then ‘chhadi’ cannot be strictly speaking considered to be a weapon of any consequence, not even equivalent to a ‘lathi’. 19. Girdhari (PW4) and Kailash (PW10) do not throw any light on the incident except particularly corroborating the manner in which the incident took place. Girdhari has stated that when enquiry was made from Mala Ram and Kana Ram about the theft, they denied having committed any theft and rather demanded explanation from the accused as to why they named these persons (Mala Ram and Kana Ram) as thieves. Pooran Mal at that stage picked up a ‘lathi’ and started beating these persons. At that stage, he as well as Girdhari ran away from there. This witness has then stated that Mala Ram Gujar had a ‘kulhari’ and Kalu Keer and Mala Ram Keer had ‘lathis’. Kailash (PW10) has stated that when they along with accused enquired from Mala Ram and Kana Ram Meena about the theft, saying that doubt was being expressed by people that they might have committed this theft, Kana Ram Meena and Mala Ram Meena demanded explanation from Mala Ram Gujar as to why they have been named them as thieves. Then an alteration between them followed by exchange of abuses between each other and they suddenly started quarreling with each other. Mala Gujar had a ‘kulhari’ and other three accused had ‘lathis’. They started beating Mala Meena and Kana Ram Meena. He along with Girdhari fled away from there towards Patan. 20. As far as other three accused are concerned, who are no longer alive, the evidence is quite consistent and categorical as to their role except that the assertion by Kana Ram (PW2) as also Nathu (PW3) that Mala Ram Gujar had a ‘kulhari’ and he inflicted the ‘kulhari’ blows on the deceased Mala Ram Meena and injured Kana Ram Meena has been falsified in view of the medical evidence to the effect that there is no corresponding injury by sharp edged weapon. Thus the role of the other three accused except present appellant Pooran Mal is quite consistent in the statement of the prosecution witnesses. Thus the role of the other three accused except present appellant Pooran Mal is quite consistent in the statement of the prosecution witnesses. However, as regards Pooran Mal, the evidence is quite sketchy. Nathu (PW3), the hotel owner, who is independent witness has not once, but thrice in his statement has said that Pooran Mal was empty handed and did not wield any weapon. While other accused caused injuries to Mala Ram Meena and Kana Ram Meena, but Pooran Mal did not cause any injury to him. However, at the bottom of cross examination, again he has made a statement that all the accused fled away from the place of occurrence and present appellant Pooran also fled away with them. Though Pooran was empty handed, but after the incident of ‘marpeet’, he picked up a ‘chhadi’, he too then gave a beating to the deceased and the injured. At three places in the statement having stated that Pooran was empty handed and did not have any weapon, his version in the last of the examination in chief that while fleeing away after the incident, he picked up a ‘chhadi’ and also gave beating to the deceased and the injured with that ‘chhadi’, hardly inspires confidence. In the first place, ‘chhadi’ cannot be said to be a deadly weapon or for that matter any weapon of significance, at least not such as the ‘lathi’ is. ‘Chhadi’ is a dried piece of branch of the tree, which hardly can cause any fatal injury. In any case, the testimony of Girdhari (PW4) and Kailash (PW10) in this behalf is again contradictory and not consistent. While Girdhari (PW4) has stated that Pooran Mal gave beating to the deceased and injured by ‘lathi’ and when incident started, they ran away, Kailash is not supporting him in this behalf. He has not alleged that before they ran away from the place of occurrence, he saw Pooran Mal caused any injury to the injured and deceased, but rather stated that after the incident started, both of them fled away from the place of occurrence. Then what has been recovered at the instance of Pooran is not ‘chhadi’ but ‘lathi’. He has not alleged that before they ran away from the place of occurrence, he saw Pooran Mal caused any injury to the injured and deceased, but rather stated that after the incident started, both of them fled away from the place of occurrence. Then what has been recovered at the instance of Pooran is not ‘chhadi’ but ‘lathi’. Notwithstanding therefore, recovery of a ‘lathi’ at the instance of accused-appellant, we find that the evidence against him does not stand on the firm foundation as it is against the three other accused, all of whom have died and appeal filed qua them has abated. 21. In view of the above discussion, we find that the accused-appellant Pooran Mal has made out a case of extending him benefit of doubt, the charges against him having not been proved beyond reasonable doubt. 22. In the result, the appeal deserves to succeed and is accordingly allowed. The impugned judgment of conviction and sentence of accused-appellants dated 30.11.1988 is set aside. The accused-appellant Pooran Mal is acquitted of the charges for offence u/s.302/34 and 323/34 IPC. He is on bail, therefore, his bail bonds and sureties are discharged. He need not surrender. 23. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Pooran Mal is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.