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2019 DIGILAW 1431 (RAJ)

Hari Ram @ Haru Ram v. State

2019-05-09

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT Vinit Kumar Mathur, J. - The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 26.11.2014 passed by the learned Sessions Judge, Jodhpur District Jodhpur in Sessions Case No.92/2011 whereby the appellant has been convicted and sentenced as under:- Offence Sentence Fine In Default 302 IPC Life imprisonment Rs.10000/- Six months additional rigorous imprisonment 307 IPC Life Imprisonment Rs.10,000/- Six months Addl. rigorous imprisonment 326 IPC Seven years Rigorous imprisonment Rs.1000/- Three Months Add. Rigorous imprisonment 325 IPC Three years Rigorous imprisonment Rs.1000/- Three months Add. Rigorous imprisonment. 323 IPC Six months Rigorous imprisonment Rs.1000/- One month Add. Rigorous imprisonment. 460 IPC Seven years rigorous imprisonment Rs.1000/- Three months Add. Rigorous imprisonment. 2. Brief facts necessary to be noted for disposal of the appeal are that a written report (Ex.P/1) was filed by Hari Ram (PW1) on 12.12.2010 to the Station House Officer, Police Station, Osian District Jodhpur stating inter-alia that his sister Smt. Pappu Devi was married to Ladhu Ram of village Nosar who died 6-7 years ago. Shyam Lal is his elder nephew, Vikas is his younger nephew and Kavita is his niece. His sister was residing in a separate house constructed in the portion of land falling in her share. On 10.12.2010, he came back to his house after harvesting crop of Millet grown on his sister's share of land. His nephew Shyam Lal used to reside with his uncle Hari Ram @ Haru Ram S/o Mana Ram. On 11.12.2010 at around 1:00 am, Achla Ram Meghwal, resident of Nosar informed him on telephone that Shyam Lal had been assaulted by Hari Ram @ Haru Ram and was lying unconscious and that he had somehow rescued Shyam Lal. Shyam Lal spoke to the informant on phone and requested him to come over. At around 2-2:30 am, the informant along with his father Chautha Ram, Surta Ram, Bhikha Ram, Bhagirath Ram and neighbor Ajij Khan and Danu Ram proceeded towards the house of Jeewan Ram Panwar in the Jeep of Danu Ram and reached there at around 6:00 am. He again spoke to Achla Ram on telephone who informed that Hari Ram @ Haru Ram told him that he had murdered the mother, brother and sister of Shyama (Shyam Lal). Achala Ram also told him to go and see his sister Pappu Devi. He again spoke to Achla Ram on telephone who informed that Hari Ram @ Haru Ram told him that he had murdered the mother, brother and sister of Shyama (Shyam Lal). Achala Ram also told him to go and see his sister Pappu Devi. They all went to the house of his sister and he saw her dead body lying in a pool of blood in the courtyard of the house. Blood was scattered all around the place. The Sarpanch was informed about the incident who in turn contacted the police. They went inside the house and saw his niece Kavita and nephew Vikas lying on the bed in the room. They were profusely bleeding & gravely injured. He suspected that Hari Ram @ Haru Ram, brother in law (Devar) of his sister had murdered his sister and also tried to kill his nephews and niece (PW5 Kavita, PW6 Vikas & PW.7 Shyamlal). He was not aware of the reason of the assault. 3. On this written report, a formal F.I.R. No.275/2010 was registered at Police Station- Osian District Jodhpur Rural for the offences under Sections 302, 307 & 458 IPC against the accused-appellant. The accused-appellant was arrested on 13.12.2010 vide arrest memo (Ex.P/39). 4. After conclusion of investigation, the police filed charge-sheet against the accused-appellant arraigning him for the offences under Sections 302, 307, 459, 323, 324, 325 & 326 IPC 5. Learned trial court framed, read over and explained the charges for the offences under Section 302, 326, 307, 460, 323 & 325 IPC to the accused appellant who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 27 witnesses and exhibited documents Ex.P/1 to Ex.P/72. In defence, document Ex.D/1 (statement of Tilok Ram) was exhibited. 7. The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he expressed denial and stated that Hari Ram wanted to grab the land falling in the share of his brother, therefore, he had been falsely implicated by hatching conspiracy. 8. Learned trial Court, after hearing the arguments of both the sides, convicted and sentenced the accused-appellant for the offences under sections 302, 307, 326, 325, 323, 460 IPC vide judgment dated 26.11.2014. Hence this appeal. 9. 8. Learned trial Court, after hearing the arguments of both the sides, convicted and sentenced the accused-appellant for the offences under sections 302, 307, 326, 325, 323, 460 IPC vide judgment dated 26.11.2014. Hence this appeal. 9. We have heard learned counsel appearing for the accused-appellant and the learned Public Prosecutor. 10. Learned counsel for the appellant vehemently submitted that in the present case the appellant has been falsely implicated. He submits that the prosecution has failed to bring on record sufficient evidence to prove the allegations levelled against the appellant beyond all reasonable doubt. He contended that statements of PW5 Kavita and PW6 Vikas were recorded by the Investigating Officer after a considerable delay. There is no explanation for the delay occasioned, therefore, it can safely be inferred that PW5 Kavita and PW6 Vikas have been tutored to give evidence against the appellant. He further contended that in the statement of PW26 Dr. C.P. Mathur, it has come on record that when the injured were brought to the Community Health Center, Osian, they were conscious. They were given primary treatment and referred to Jodhpur. The learned defence counsel contended that as per the statement of PW26 Dr. C.P. Mathur, when PW5 Kavita and PW6 Vikas were conscious, there was no reason for the Investigation Officer not to have recorded their statements without any loss of time. 11. The counsel also took us to the testimony of PW27 Lakha Ram, the investigating officer and submitted that nothing has come on record during the course of his investigation that when their mother Smt. Pappu Devi was being assaulted, Kavita (PW5) and Vikas (PW6) had tried to intervene. The counsel urges that entire story set up in the prosecution case is based on eye witness account is false and unreliable, therefore, the same is required to be discarded. The Rojnamcha report (Ex.P/45) dated 12.12.2010 clearly shows that the information with respect to the present incident was already recorded in the Rojnamcha. The same does not disclose the name of the present appellant. Therefore, the written report on the basis of which, the matter was investigated was framed to falsely implicate the appellant. 12. Learned counsel took us to the testimony of PW4 Achla Ram and submitted that the relationship between Shyam Lal and his mother was strained. The same does not disclose the name of the present appellant. Therefore, the written report on the basis of which, the matter was investigated was framed to falsely implicate the appellant. 12. Learned counsel took us to the testimony of PW4 Achla Ram and submitted that the relationship between Shyam Lal and his mother was strained. Further, the factum of extrajudicial confession allegedly made by Hari Ram @ Haru Ram is conspicuously missing from the written report (Ex.P/1). Further, the fact mentioned in the FIR that Hari Ram @ Haru Ram conveyed to the witness that he had murdered Shyama's mother, brother and sister was not stated by him in his sworn testimony. 13. Learned counsel further contended that the testimony of PW5 Kavita and PW6 Vikas should be discarded on the count of their being child witnesses as they are susceptible to tutoring. They are also interested witnesses being daughter and son of the deceased Pappu Devi. On the strength of the arguments noted above, the counsel prayed that the appellant should be acquitted from the charges levelled against him by setting aside the judgment dated 26.11.2014. 14. Per contra, learned Public Prosecutor supported the impugned judgment dated 26.11.2014 passed by the learned trial court and contended that there is no reason to disbelieve the testimony of injured eye witnesses PW5 Kavita and PW6 Vikas, being the daughter and son of the deceased as they were sleeping in their house when the accused appellant assaulted their mother. Upon hearing the cries of their mother, they woke up and saw the appellant inflicting injuries to their mother. In the same sequence, grievous injuries were inflicted by the appellant to PW5 Kavita and PW6 Vikas as noted by PW26 Dr. C.P. Mathur in the injury reports (Ex.P/42 & Ex.P/43). It can very well be inferred from the circumstances of the present case that PW5 Kavita, PW6 Vikas being daughter and son of the deceased Smt. Pappu Devi intervened to rescue their mother and, they also received injuries in this process. 15. Learned Public Prosecutor further contended that in the light of clear and ocular evidence corroborated by the medical evidence as deposed by PW10 Dr. Rajesh Bishnoi and postmortem report (Ex.P/24), it is proved beyond reasonable doubt that the appellant murdered Smt. Papu Devi. 16. 15. Learned Public Prosecutor further contended that in the light of clear and ocular evidence corroborated by the medical evidence as deposed by PW10 Dr. Rajesh Bishnoi and postmortem report (Ex.P/24), it is proved beyond reasonable doubt that the appellant murdered Smt. Papu Devi. 16. Recovery of Axe (Ex.P/17) on the information given by the accused-appellant under section 27 of the Indian Evidence Act (Ex.P/70) for recovery of weapon of offence and the FSL report (Ex.P/72) reports presence of 'B' blood group on the weapon of offence i.e. Axe matching with the blood stained clothes of the deceased sent for examination to the FSL completes the chain of circumstances indicating that it was the appellant alone and none else who was involved in the commission of the offences alleged in the present case. Learned Public prosecutor submits that the judgment dated 26.11.2014 passed by the trial court calls for no interference by this court. 17. We have considered the submissions made at bar and have gone through the record of the learned trial court as well as impugned judgment dated 26.11.2014. 18. Pw1 Hari Ram who is brother of the deceased and the first informant stated before the trial court on the same lines as stated by him in the written report (Ex.P/1). He deposed that his sister Pappu Devi was staying in the village Nosar. Her husband died 6-7 years ago. She had three kids namely Shyam Lal, Vikas and Kavita. On getting the telephonic information, he, along with his father and other persons went to the house of his sister and saw Pappu Devi lying dead in the pool of blood and his niece Kavita (PW5) and nephew Vikas (PW6) were lying on the cot in an injured condition. The First Information Report was promptly lodged at the police station. During the cross examination of this witness, nothing significant was elicited which may create any doubt upon his testimony. 19. Pw4 Achala Ram deposed that his house was situated in close proximity to the house of accused-appellant. At night, he heard some hue and cry from the house of accused-appellant. When he went to the house of accused-appellant, accused Hari Ram @ Haru Ram came to him and said that a mishap had happened as Shyam Lal died after consuming liquor. At night, he heard some hue and cry from the house of accused-appellant. When he went to the house of accused-appellant, accused Hari Ram @ Haru Ram came to him and said that a mishap had happened as Shyam Lal died after consuming liquor. When he went to the Dhani of the accused, he saw Shyam Lal lying unconscious on the road. He tried to revive him by pressing his chest on which Shyam Lal regained consciousness and was murmuring that his uncle should not assault him. The accused-appellant who was standing nearby tried to assault Shyam Lal but he rescued Shyam Lal by threatening the accused-appellant with an Iron angle, therefore, the accused appellant ran away. He took Shyam Lal who was bleeding from his mouth to his house. The accused-appellant Hari Ram @ Haru Ram came to his house and tried to take away Shyam Lal with him on which he protested and told the accused-appellant that he would not send Shyam Lal with him unless the villagers and neighbours are called & the police is informed about the incident as he had assaulted Shyam Lal. He informed Bhagirath on phone and thereafter Hari Ram was also informed about the condition of Shyam Lal. Hari Ram (PW1) came to the village and saw that his sister had been murdered and his niece Kavita (PW5) and nephew Vikas (PW6) were injured. A report was filed at the police station. During the cross examination of this witness, nothing significant was elicited which may create any doubt upon his testimony. 20. Pw5 Kavita who is the daughter of the deceased while identifying the appellant stated that he was her uncle Hari Ram @ Haru Ram. She and her brother Vikas were sleeping. Both heard the hue and cry of their mother, upon which, they woke up and saw that their mother was being assaulted by the accused-appellant with an axe. Her mother was inflicted axe blows on her head. When she and her brother tried to intervene, they too were assaulted by the appellant. Her mother died of axe blows on her head. She and other brother Vikas (PW6) got injured. In the cross examination, this witness stated that after the incident, she and her brother Vikas (PW5) became unconscious. The police officials recorded her statement after 6-7 days. When she and her brother tried to intervene, they too were assaulted by the appellant. Her mother died of axe blows on her head. She and other brother Vikas (PW6) got injured. In the cross examination, this witness stated that after the incident, she and her brother Vikas (PW5) became unconscious. The police officials recorded her statement after 6-7 days. Nothing contrary was elicited during the cross examination of this witness so as to doubt the credibility or veracity of the deposition made by her in the examination-in-chief. 21. Pw6 Vikas who is the son of the deceased deposed almost on the same lines as deposed by his sister Kavita (PW5). Nothing contrary was elicited during the cross examination of this witness so as to doubt the credibility or veracity of the deposition made by him in the examination-in-chief. 22. Pw27 Lakharam was the investigating Officer who conducted the investigation of the matter and stated that he prepared the site plan, recorded the statements of the witnesses, effected the recoveries, collected the samples. He further stated that after conducting the investigation as prescribed by law, he filed charge sheet in the court. 23. Pw26 Dr. C.P. Mathur, Junior Specialist at Community Health Center, Osian District Jodhpur who examined PW5 Kavita, PW6 Vikas and PW7 Shyam Lal and described the injuries as under:- Kavita (PW5) was having one injury i.e. incised wound of 6x1.5x1cm in the center of the head caused by a sharp edged weapon. 24. There were three injuries on the body of Vikas (PW6) i.e. three incised wounds of 2.5x1x1cm on the left side of the head; 1.5x1x1 cm on the center of the head and 1.5 x1 x1 cm. Incised wound on left side of head caused by sharp edged weapon. 25. There were three injuries on the body of Shyam Lal (PW7). The injury No.1 & 2 being bruises on left side of neck and forehead were simple in nature and injury No.3 was grievous being absence of two teeth from lower jaw. 26. Due to the injuries sustained by PW5 Kavita and PW6 Vikas, they were advised for X-Ray. He stated that at the time of their examination, they were conscious and were given primary treatment and thereafter, referred to Jodhpur. 27. Pw10 Dr. 26. Due to the injuries sustained by PW5 Kavita and PW6 Vikas, they were advised for X-Ray. He stated that at the time of their examination, they were conscious and were given primary treatment and thereafter, referred to Jodhpur. 27. Pw10 Dr. Rajan Bishnoi who was posted as Medical Officer, at Community Health Center, Osian District Jodhpur conducted autopsy upon the body of the deceased Smt. Pappu Devi described the injuries sustained by her and opined the cause of death to be the head injury. 28. Ex.P/24 is the postmortem report wherein the cause of death of deceased is mentioned as shock due to head injury. 29. The testimony of PW5 Kavita and PW6 Vikas is specific, clear and reliable. They being daughter and son of the deceased clearly deposed that while they were sleeping with their mother, they heard cries of their mother and saw that the appellant being their uncle assaulting their mother. They also sustained injuries at the hands of the appellant as is evident from their injury reports (Ex.P/42 & Ex.P/43). When there is ocular evidence clearly specifying the name of the assailant and the sequence of events, there is no iota of doubt in our mind that it was none other than the appellant who was involved in the commission of the crime in question. 30. There cannot be any doubt so far as identification of the appellant is concerned because the appellant was none other than uncle of PW5 Kavita and PW6 Vikas. The testimony of PW5 Kavita and PW6 Vikas is getting complete corroboration from the testimony of PW10 Dr. Rajendra Bishnoi who conducted autopsy upon the body of the deceased and PW26 Dr. C.P.Mathur who examined them medically, prepared their injury reports and gave primary treatment and referred them to Jodhpur. 31. The argument of learned counsel for the appellant with respect to the delay occasioned in recording statement of PW5 Kavita and PW6 Vikas is self explained as after witnessing the ghastly assault in which, their mother being killed before their own eyes, & they themselves were brutally assaulted, the children were bound to be traumatized & shocked since they were only aged 10-12 years. Besides, they themselves were grievously injured and remained admitted in the hospital for quite some time, therefore, the delay caused in the circumstances of this case is well explained. 32. Besides, they themselves were grievously injured and remained admitted in the hospital for quite some time, therefore, the delay caused in the circumstances of this case is well explained. 32. They are absolutely reliable and credible witnesses in the present case. Merely because, they were interested and child witnesses, their testimony cannot be discarded. 33. We also note that there is no evidence on record which shows that these two witnesses i.e. PW5 Kavita and PW6 Vikas were tutored to give false evidence so as to falsely implicate the appellant. No questions were asked on the point of delay and tutoring from the defence side in the cross examination of PW5 Kavita and PW6 Vikas. 34. We further note that the chain of circumstances is complete by recovery of blood stained weapon of offence (Axe) at the instance of the accused-appellant and FSL report showing presence of the same blood group on the weapon of offence and on the blood stained clothes of the deceased sent to FSL for examination. 35. Thus, we are of the firm opinion that the trial court has appreciated the evidence available on record in an absolutely apropos manner while recording the finding of guilt against the accused by the impugned judgment which does not suffer from any illegality or infirmity whatsoever. 36. In the wake of the above discussion, we do not find any merit in the present appeal and thus, the same fails and is hereby rejected. The judgment dated 26.11.2014 passed by learned Sessions Judge, Jodhpur District Jodhpur is upheld. The record be returned forthwith. 37. The brutal act of the accused-appellant has resulted in numerous grievous injuries being inflicted to the three children namely Kavita, Vikas and Shyam Lal and in addition thereto, their mother was done to death. The three children had already lost their father earlier & thus they were orphaned because of the brutal acts of the accused. Thus, in order to alleviate their suffering to some extent, we propose to award them compensation under the Victims Compensation Scheme promulgated by the State Government while exercising powers under section 357-A Cr.PC. 38. Section 357-A CrPC was inserted in the statute on 31.12.2009. It may be noted here for the sake of reference that the Rajasthan Victim Compensation Scheme was enacted in the year 2012. 38. Section 357-A CrPC was inserted in the statute on 31.12.2009. It may be noted here for the sake of reference that the Rajasthan Victim Compensation Scheme was enacted in the year 2012. The judgment of the case at hand was rendered by the trial court in the year 2010. However, the law is well settled that appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose, the appeal is deemed to be a continuance of trial. Reference in this regard may be made to Smt. Akhtari Bi Vs. State of M.P., 2001 AIR(SC) 1528 . When the appeal is decided, the judgment of the trial court merges into the appellate judgment. 39. The accused is said to be a very poor man and thus, there would be no point in considering grant of compensation to the three victims at the cost of the accused by imposing fine under Section 357 CrPC. However, the Victim Compensation Scheme introduced in the State of Rajasthan, in light of Section 357-A CrPC can be applied to take care of this aspect. The judgment of the case at hand was delivered by the trial court on 26.11.2014 but as an appeal is continuance of trial, the case of the three injured can definitely be considered for grant of compensation under the Victim Compensation Scheme even at the appellate stage. Hon'ble the Allahabad High Court in the case of Mohd. Kaleem Vs. State of U.P. (Criminal Appeal No.1726/2012 decided on 24.11.2015) considered the sphere of operation of Victim Compensation Scheme and held at para 31 of its judgment that the court referred to in Section 357-A (2) includes the remand magistrate, trial court, appellate court or the revisional court. Hon'ble the Allahabad High Court further went out to observe in para 36 of its judgment that Section 357-A CrPC is retrospective in effect. 40. In this view of the matter, we are of the considered opinion that on account of death of Smt. Pappu Devi, mother of PW5 Kavita and PW6 Vikas and Shyam Lal (PW7), they are entitled to be compensated by a sum Rs. 2,50,000/- (Two Lac Fifty Thousand Rupees Only) as per schedule appended to the Rajasthan Victims Compensation Scheme, 2011. 41. The amount shall be equally distributed amongst the three children namely Kavita, Vikas and Shyam Lal. 42. 2,50,000/- (Two Lac Fifty Thousand Rupees Only) as per schedule appended to the Rajasthan Victims Compensation Scheme, 2011. 41. The amount shall be equally distributed amongst the three children namely Kavita, Vikas and Shyam Lal. 42. As far as, compensation under the head of extent of disability suffered by PW5 Kavita, PW6 Vikas & PW 7 Shyam Lal is concerned, as the matter pertains to Police Station Osian, District Jodhpur, we direct the Full Time Secretary, District Legal Service Authority, Jodhpur to make a thorough enquiry regarding the present status of the victims named hereinabove; the extent of disability suffered by them, if any, because of the injuries sustained in the incident. For making assessment, the Full Time Secretary shall be at liberty to take opinion of the Medical Board, if so required. The report of Full Time Secretary shall be placed for perusal of the Court for considering grant of compensation to the victims under the scheme above stated. The victims PW5 Kavita, PW6 Vikas & PW7 Shyam Lal shall be kept present in the Court on the next date fixed for compliance of this order. A copy of this order shall be forwarded to the Full Time Secretary, District Legal Service Authority, Jodhpur. 43. List on 24.05.2019 for receiving report of Full Time Secretary.