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Rajasthan High Court · body

2019 DIGILAW 1249 (RAJ)

Alkaram v. State of Rajasthan

2019-04-26

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT : SANDEEP MEHTA, J. 1. The accused appellant stands convicted and sentenced as below vide judgment dated 16.01.2016 passed by the learned District and Sessions Judge, Pratapgarh, in Sessions Case No. 11/2012: Offence Sentence Fine Fine Default sentence Section 447 IPC 1 Month’s S.I. Rs.250/- 2 Days’ Simple Imprisonment. Section 302/34 IPC Life Imprisonment Rs.5,000/- 1 Year’s Simple Imprisonment. 2. Being aggrieved of his conviction and sentence, the accused appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted herein below: 4. Virendra (PW-1) lodged a written report (Ex. P/1) to the SHO, Peepalkhunt, District Pratapgarh on 07.12.2011 at 09.15 p.m. alleging inter alia that his elder brother Baneshwar had entered into a naata with a woman named Asha wife of Sattu resident of Lank Tukda, P.S. Deogarh. The jhagda money traditionally required to be paid in lieu of the naata relationship was due. For claiming this amount, Sattu often used to visit the complainant’s house with his companions and would quarrel with them. On the previous day i.e. 06.12.2011, at about 12 o’ clock, Sattu came to the informant’s house with 2-3 other persons and went back after hurling insinuations and a threat that if the Jhagda money was not paid, they would be killed. In the morning at about 8 o’ clock, the informant alongwith his father Narayan and brother Kailash were at their house when Sattu came there with three more persons having lathis and axes in their hands and exhorted that Narayan’s son had brought a woman of their family in naata and thus, the complainant’s family party would not be left alive. Saying so, Sattu gave an axe blow on the head of the informant’s father Narayan and the others started beating him by sticks. The informant’s brothers Vijaypal and Kailash intervened on which, they too were beaten. Because of the injuries received in the assault, the informant’s father fell down unconscious whereafter, the assailants ran away. Shri Narayan was taken to the hospital on a motorcycle where he passed away while undergoing treatment. On the basis of this report, an FIR No. 316/2011 was registered at the Police Station Peepalkhunt, District Pratapgarh for the offences under Sections 302, 323, 447 and 448 IPC and the investigation was commenced. The investigating officer conducted the usual investigation. Shri Narayan was taken to the hospital on a motorcycle where he passed away while undergoing treatment. On the basis of this report, an FIR No. 316/2011 was registered at the Police Station Peepalkhunt, District Pratapgarh for the offences under Sections 302, 323, 447 and 448 IPC and the investigation was commenced. The investigating officer conducted the usual investigation. The dead body of Shri Narayan was subjected to autopsy at the hands of the Medical Jurist Dr. Ramniwas (PW-16) at the Government Hospital Peepalkhunt who issued the postmortem report (Ex. P/15) in which, as many as four lacerated wounds were noticed, the location whereof was on the head of the deceased. The injury reports of the two injured witnesses viz. Vijaypal (Ex. P/8) and Kailash (Ex. P/9) were also prepared. The statements of the injured witnesses were recorded by the I.O. under Section 161 Cr.P.C. on 07.12.2011 itself. Both of them named the appellant as one of the assailants. Accordingly, the appellant and the co-accused Sattu @ Satyanarayan were arrested. Satyanarayan was found to be less than 18 years of age on the date of the incident. The appellant herein and Satyanarayan were chargesheeted in the Court of the Magistrate concerned for the offences under Sections 302, 323 and 447 IPC. Since the offences were Sessions triable, the case was committed to the Court of the Sessions Judge, Pratapgarh. An application came to be filed on behalf of the accused Satyanarayan for treating him to be a juvenile which was allowed by the trial court vide order dated 23.02.2012 and it was directed that his case be sent to the Principal Magistrate, Juvenile Justice, Pratapgarh for inquiry. The trial court framed charges against the appellant herein for the above offences. He pleaded not guilty and claimed trial. The prosecution examined as many as 18 witnesses and exhibited 25 documents in support of its case. Upon being questioned and when confronted with the circumstances appearing against him in the prosecution evidence, the appellant denied the same and claimed that he had been falsely implicated and was not present at the spot. However, no evidence was led in defence. 5. After hearing the arguments advanced by the prosecution and the defence and, upon appreciating the entire material available on record, the trial court proceeded to convict and sentence the accused appellant as above. Hence, this appeal. 6. However, no evidence was led in defence. 5. After hearing the arguments advanced by the prosecution and the defence and, upon appreciating the entire material available on record, the trial court proceeded to convict and sentence the accused appellant as above. Hence, this appeal. 6. Shri S.S. Sisodia, learned counsel representing the appellant put-forth the following contentions for assailing the appellant’s conviction as recorded by the trial court: (i) that the appellant is not named in the FIR; (ii) that the injured eye witnesses viz. Vijaypal (PW-2) and Kailash (PW-4) have specifically alleged that co-accused Satyanarayan gave the axe blow on the head of their father Narayan the deceased and thus, as per him, the participation of the accused appellant in the assault is not established; (iii) that another accused namely Prakash who too was assigned a specific role in the incident, was not charge-sheeted and thus, as per Shri Sisodia, the conviction of the appellant cannot sustained; and (iv) that the recovery of the lathi made at the instance of the appellant has been rendered otiose in view of the fact that no FSL report was produced by the prosecution to establish the fact that the weapon bore any blood stains. 7. On these grounds, he implored the Court that the appellant herein is entitled to be acquitted by giving him the benefit of doubt and the impugned judgment should to be set aside. 8. Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the learned defence counsel and contended that the omission of the appellant’s name in the FIR is immaterial in view of the fact that no cross-examination whatsoever was made from the first informant in this regard. He further submits that the injured eyewitnesses Vijaypal (PW-2) and Kailash (PW-4) named the appellant as an assailant when examined under Section 161 Cr.P.C. on the very day of the incident and they have attributed specific role to him in their evidence as well and thus, no inference can be drawn against the prosecution simply because the appellant was not named in the FIR. He urged that there is no animosity whatsoever between the witnesses and the appellant and thus, there was no reason for them to have roped him falsely in the case. He urged that there is no animosity whatsoever between the witnesses and the appellant and thus, there was no reason for them to have roped him falsely in the case. He further urged that the fact that the co-accused Satyanarayan has been attributed an axe blow on the head of the deceased would not take anything away from the evidence of the eye-witness regarding the role played by the accused appellant because multiple injures by blunt weapon were noticed on the skull region of the deceased when the body was subjected to autopsy. He thus implored the Court to affirm the impugned judgment while dismissing the appeal. 9. We have give our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record. 10. The material prosecution witnesses viz. PW-1 Virendra, PW-2 Vijaypal (injured) and PW-4 Kailash (injured) being the sons of the deceased Narayan, have specifically named the appellant as an assailant in their sworn statements and assigned them a specific role of giving lathi blows on the head of the deceased. They also alleged that Satyanarayan was armed with an axe and he too inflicted blows thereof on the head of the deceased. The witnesses also categorically stated that Baneshwar, their elder brother, had brought the wife of the co-accused Sattu @ Satyanarayan in naata and the jhagda money thereof was due. On this count, Satyanarayan was threatening them of dire consequences every other day. No significant cross-examination was made from these witnesses on these material aspects of their testimony. So far as the fact regarding the omission of the name of the first informant in the FIR is concerned, the same loses significance when we consider the aspect that not a single word was put to Virendra in this regard when he was subjected to cross-examination. Unless an explanation is sought from a particular witness regarding the omission/contradiction appearing in his sworn testimony vis-a-vis the previous statement/the written report, the testimony of the witness cannot be criticized on that aspect. Thus, the omission of the appellant’s name in the FIR harped upon by the appellant’s counsel Shri Sisodia loses steam and is of no consequence whatsoever. Unless an explanation is sought from a particular witness regarding the omission/contradiction appearing in his sworn testimony vis-a-vis the previous statement/the written report, the testimony of the witness cannot be criticized on that aspect. Thus, the omission of the appellant’s name in the FIR harped upon by the appellant’s counsel Shri Sisodia loses steam and is of no consequence whatsoever. That apart, the two injured eye witnesses namely Vijaypal (PW-2) and Kailash (PW-4) have categorically taken the name of the appellant as an assailant who inflicted injuries to them as well as their father by the lathi held by him. Both the witnesses could not be shaken in cross-examination. The allegation so made is corroborated by the medical evidence in form of the postmortem report of the deceased (Ex. P/15), injury report of Vijaypal (Ex. P/8) and that of Kailash (Ex. P/9) as well as the evidence of the Medical Officer Dr. Ramniwas (PW-16). The contention of Shri Sisodia that the allegation of inflicting the lathi blow attributed to the appellant by the eye witnesses is not corroborated by the medical evidence, lacks merit because not only have the witnesses attributed specific role in the assault to Satyanarayan and the appellant, they have assigned specific blows by lathi to the appellant herein which allegation is thoroughly corroborated by the medical evidence, referred to supra. The medical officer noted a total of four lacerated wounds on the head of the deceased which are described herein below for ready reference: (1) Laceration - 3 cm. X 1 1/2 cm. Bone fracture Rt. Parietal Bone, Brain Material Rupture. (2) Laceration - 3 cm. X 1 1/2 Com. Frontal bone fracture Brain Material oozing out. (3) Laceration - 4 cm. X 2 cm. Left Parietal Bone with Brain Material Rupture. (4) Laceration - 15 cm. X 2 cm. Left lateral side and fragile bone. 11. The large number of injuries noticed on the head of the injured thoroughly corroborates the allegation of the eye witnesses that multiple blows by lathi and axe were rained on the deceased which proved instantaneously fatal. The fact that the lathi recovered from the appellant was not sent to the FSL is immaterial because the evidence of recovery and the FSL report would only be required to corroborate the evidence of the eye witnesses in case we find them not to be wholly reliable. The fact that the lathi recovered from the appellant was not sent to the FSL is immaterial because the evidence of recovery and the FSL report would only be required to corroborate the evidence of the eye witnesses in case we find them not to be wholly reliable. However, as we have conclusively held that the testimony of the three eye witnesses, discussed supra, is wholly reliable, the same would not require any corroboration whatsoever. 12. In view of the discussion made herein above, we are of the firm opinion that the trial court appreciated the evidence available on record in an absolutely just and apropos manner and correctly recorded the finding of guilt against the appellant by the impugned judgment dated 16.01.2016 which does not suffer from any infirmity, illegality or shortcoming whatsoever warranting interference. 13. As a consequence, the appeal is devoid of merit and is dismissed as such. 14. Record be returned to the trial court.