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2019 DIGILAW 2008 (RAJ)

Veer Mal v. State of Rajasthan

2019-07-19

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The appellant herein has been convicted and sentenced as below by the learned Additional District & Sessions Judge, Sagwada, District Dungarpur vide the judgment dated 31.07.2015 passed in Sessions Case No.58/2015:- Conviction for offence under Section Sentences & fine Fine Default Sentence 302 I.P.C. Life Imprisonment, with a fine of Rs.10,000/- 2 years S.I. 2. Upon amount of fine being deposited, the same was directed to be disbursed to the legal heirs of the deceased Kalu. 3. Being aggrieved of his conviction and sentence, the appellant herein has preferred the instant appeal under Section 374(2) Cr.P.C. 4. Brief facts relevant and essential for disposal of the present appeal are noted hereinbelow. 5. On 07.03.2012, one Shri Hakarchand (P.W.1) presented a written report Ex.P1, to the SHO P.S. Varda, District Dungarpur alleging inter alia that in the previous night, at about 10 PM, he was at his house. At that time, Thawri (P.W.3) D/o Premchand Rot came to his house and stated that Devi Lal, Veermal, Ram Lal (Sons of Phoola) and Lalji S/o Savji Rot had beaten her father Kalu S/o Savji Rot with lathis and iron rods near the school hostel; and that her father was lying injured and bleeding in the middle of the road. On this, the first informant, alongwith his neighbors Bhera, Shantu, Ramesh, Dhanraj, Gattu and Pankaj rushed to the place of incident and upon reaching there, they saw that his brother Kalu was having injuries on his head and had passed away. It was also alleged in the said report that owing to a prior enmity, the four assailants had assaulted and killed Kalu. Upon this report an FIR No.25/2012 (Ex.P-27) came to be registered against the accused for the offences under Sections 341, 302/34 IPC and investigation was commenced. 6. During investigation, the Investigating Officer P.W.12 Ved Prakash prepared the formal documents pertaining to the site inspection, panchnama-lash and collected the blood stained samples etc. Statements of the material witnesses were recorded. The accused-appellant Veermal and the co-accused Devi Lal, Ram Lal and Lalji were arrested. 6. During investigation, the Investigating Officer P.W.12 Ved Prakash prepared the formal documents pertaining to the site inspection, panchnama-lash and collected the blood stained samples etc. Statements of the material witnesses were recorded. The accused-appellant Veermal and the co-accused Devi Lal, Ram Lal and Lalji were arrested. The Investigating Officer effected incriminating recoveries from the accused and thereafter, proceeded to file a charge sheet against the four apprehended accused in the Court of Magistrate concerned for the offences under Sections 341 and 302/34 I.P.C. Since the offences were Sessions triable, the case was initially transferred to the Court of learned Additional Sessions Judge, Fast Track, Udaipur for trial. With the abolition of the Fast Track Courts, the case was transferred to the Court of learned Additional District & Sessions Judge, Sagwara, District Dungarpur who framed charges against the accused for the above offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 13 witnesses and exhibited 39 documents to prove its case. The accused, when questioned under Section 313 Cr.P.C. and confronted with the circumstances appearing against them in the prosecution evidence, denied the same and claimed to have been falsely implicated because of a land dispute. However, no oral evidence was led in defence. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and after appreciating the evidence adduced on record, the learned trial Court proceeded to hold the testimony of P.W.3 Thawri to be reliable to the extent she claimed to have seen the assault taking place in her presence. Corroboration was sought for the evidence of Thawri from the evidence of P.W.10 Dr. Saifuddin, P.W.11 Heera Lal, P.W.12 Ved Prakash and P.W. 13 Dev Chand. With these conclusions, learned trial Court proceeded to acquit all the accused of the charges under Sections 341/34 and 302/34 I.P.C. However, the accused-appellant Veermal was convicted and sentenced as above, for the offence under Section 302 I.P.C. simplicitor. Hence this appeal. 7. Shri Vikram Singh appearing for Shri Shamboo Singh, Advocate representing the accused-appellant urged that admittedly Hakarchand (P.W.1), the first informant did not see the incident happening with his own eyes and his testimony is based on hear-say evidence. Hence this appeal. 7. Shri Vikram Singh appearing for Shri Shamboo Singh, Advocate representing the accused-appellant urged that admittedly Hakarchand (P.W.1), the first informant did not see the incident happening with his own eyes and his testimony is based on hear-say evidence. He urged that the claim of Thawri P.W.3 being the daughter of the deceased Kalu that she saw the assault happening with her own eyes is totally belied by the surrounding circumstances and the evidence of the other independent witnesses viz. Gattu P.W.4, Bhera P.W.5, Dhanraj P.W.6 and Devi Lal P.W.7. He further contended that the recoveries effected by the Investigating Officer are totally falsified in light of the statement of Devi Lal P.W.7 who stood as a Motbir in the recovery proceedings. Even in his examination-in-chief, Devi Lal stated that the police arrested the accused on the very day of the incident and recovered the pipes and lathis lying in their houses. He was thereafter made to sign the memorandums. Learned Defence counsel thus submitted that the recoveries of weapons which were shown to have been effected by the Investigating Officer on the day next to the occurrence are falsified ipso-facto. He further contended that the allegation levelled by Thawri in her evidence that Veermal gave a pipe blow on the head of Kalu, is not corroborated by the medical evidence. In this regard, he referred to the statement of Dr. Saifuddin P.W. 10 and urged that the dimensions of the injury which the doctor has noted existing on the head of the deceased, could not have been caused by the blow of an iron pipe. He further submitted that the three coaccused who too were named by Thawri in her statement, have been acquitted by the trial court and thus, the accused-appellant also deserves acquittal by giving him the benefit of doubt. 8. Learned Public Prosecutor on the other hand opposed the submissions advanced by the learned defence counsel and urged that the learned trial court rightly relied upon the evidence of Thawri PW-3, and the medical officer Dr. Saifuddin PW-10 for holding the appellant guilty of the charge and thus, committed no error or infirmity while convicting and sentencing the appellant as above. He thus implored the court to dismiss the appeal. 9. Saifuddin PW-10 for holding the appellant guilty of the charge and thus, committed no error or infirmity while convicting and sentencing the appellant as above. He thus implored the court to dismiss the appeal. 9. We have given our thoughtful consideration to the statements advanced at the Bar and have gone through the impugned judgment and have minutely re-appreciated the evidence available on record. 10. On a threadbare evaluation of the evidence available on record, it is clear that Thawri P.W. 3 is the sole eye-witness to the incident. Even in the FIR Ex.P-27, lodged by Hakarchand P.W.1, brother of the deceased, it is clearly mentioned that he was present at his house when Thawri came running and told him that her father was being assaulted by the four accused. The witness rushed to the place of occurrence and saw Kalu's dead body lying in the middle of the road in a profusely bleeding condition. Thus, Hakarchand did not try to portray himself as an eye-witness of the incident and genuinely mentioned that it was Thawri, who saw the incident and told him the details thereof. Thawri in her evidence stated as below:- 11. Learned Defence counsel tried to harp upon the following lines in the cross-examination where the witness stated as below:- 12. However, this part of the cross-examination has to be read with the remaining deposition of the witnesses wherein she categorically stated that when she reached at the place of the incident, Veermal was present there. She saw the assault and then rushed to inform her uncle Hakarchand and by the time, they reached back at the place of the incident, Veermal and others had gone away. The witness categorically denied the defence suggestion that she could not identify the accused in the darkness. Not even a whisper of suggestion was given to the witness that she had any motive or cause to falsely implicate appellant herein. In this background, we feel that Thawri is a wholly reliable witness and her evidence is of sterling worth. It may be stated here that she did not try to exaggerate and honestly stated that she only saw the accused Veermal inflicting an iron pipe blow on the head of her father. In this background, we feel that Thawri is a wholly reliable witness and her evidence is of sterling worth. It may be stated here that she did not try to exaggerate and honestly stated that she only saw the accused Veermal inflicting an iron pipe blow on the head of her father. If she had any intention of over-implication or false implication, she could easily have attributed specific blows to the other accused, because as many as four blunt weapon injuries were noticed on the dead body of Kalu, when it was subjected to postmortem at the hands of Dr. Saifuddin P.W.10, who was one of the members of the Medical Board which conducted postmortem upon the body of the deceased Kalu and issued the postmortem report Ex.P-25. The first injury noticed by the Board was located on the parietal region ad-measuring 15cmX2cmXbone deep. Left side of the upper part of occipital bone was fractured and 100CC 150CC of blood was collected underneath. This injury was opined to be sufficient in the ordinary course of nature to cause death. Thawri has specifically attributed this blow to the accusedappellant Veermal in her evidence. We do find favour with the contention of defence counsel that the procedure whereby the weapons were allegedly recovered at the instance of the accused is dubitable because the Motbir witness Devi Lal, without being declared hostile, stated in his evidence that the accused were arrested on the very day of the incident and that the recoveries were also effected on the same day. On the contrary, as per the Investigating Officer's version, the accused were arrested on the day next to the incident i.e. on 7.3.2012 and the recoveries were also effected on that day. Since this allegation is belied by the testimony of the panch witness Devi Lal, we are not agreeable with the findings of the trial court that recoveries of the weapons effected by the Investigating Officer from the accused are reliable. As the recovery of weapons itself is doubtful, the FSL report loses its significance. The principle of criminal jurisprudence is well settled that where the ocular testimony is wholly reliable, the Court would not be required to look for corroboration thereof in the form of recoveries of weapons etc. As the recovery of weapons itself is doubtful, the FSL report loses its significance. The principle of criminal jurisprudence is well settled that where the ocular testimony is wholly reliable, the Court would not be required to look for corroboration thereof in the form of recoveries of weapons etc. As we have conclusively held that the evidence of Thawri P.W.3 is wholly reliable and as the same gets significant corroboration from the postmortem report Ex.P25 and the evidence of Medical Officer Dr.Saifuddin and since there was no occasion for Thawri to falsely implicate the accused and as, no such suggestion was given to her by the defence, we have no hesitation in holding that from her evidence, it is duly established that the accused-appellant Veermal inflicted the fatal head injury to the deceased by an iron pipe. So far as the contention of the learned defence counsel that as, the three coaccused have been acquitted, the appellant too deserves the same treatment is concerned, the same is meritless. As stated above, the sole prosecution eye-witness, did not attribute any role to the three acquitted accused and hence their acquittal was absolutely justified and the appellant cannot take any advantage thereof. 13. As a consequence of the above discussion, we are of the firm view that the impugned judgment dated 31.07.2015 passed by the learned Additional Sessions Judge, Sagwara, District Dungarpur does not suffer from any illegality and infirmity whatsoever, warranting interference therein. 14. Hence, the appeal fails and is hereby dismissed as being devoid of merit. 15. Record be returned to the trial court forthwith.