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Rajasthan High Court · body

2019 DIGILAW 241 (RAJ)

Arjun Ram v. State

2019-01-19

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT 1. Cr.Appeal No.797/2016 has been preferred by the accused Arjun Ram against the judgment dated 15.7.2016 passed by learned Additional Sessions Judge, Merta in Sessions Case No.102/2015 (27/2011) whereby, he was convicted for the offence under Section 302 I.P.C. and was sentenced to imprisonment for life with a fine of Rs.50,000/- and in default of payment of fine, to further undergo 6 months' additional imprisonment. 2. Cr.Appeal Nos.628/2016 and 569/2017 have been preferred respectively by the complainant Manak Ram and the State of Rajasthan for challenging the very same judgment whereby the learned trial court, whilst convicting Arjun Ram for the offence under Section 302 I.P.C. and Budha Ram for the offence under Section 323 I.P.C., acquitted Arjun Ram from the charges under Sections 148, 341, 323 I.P.C., Budha Ram from the charges under Sections 148, 341, 302/149 I.P.C. and the accused Sukha Ram, Buksa Ram, Smt.Kamodari and Smt.Suganai from the charges under Sections 148, 341, 323, 302/149 I.P.C. by giving them benefit of doubt. 3. The prosecution case emanates from the written report (Ex.P/5) submitted by Manak Ram to the SHO, Police Station Merta City on 20.07.2011 at 10:30 p.m. alleging inter alia that on the very same evening at about 7 o'clock, the informant's brother Ugma Ram was returning on his tractor after doing farming activities on his field. When he reached a little distance from the market, the accused party comprising of Arjun Ram and Sukha Ram (both sons of Buksa Ram), Budha Ram and Buksa Ram (both sons of Misa Ram), Ratna Ram S/o Dayal Ram, Kamodari W/o Arjun Ram and Suganai W/o Budha Ram, who were lying in wait from before, came across and obstructed Ugma Ram's tractor. Arjun Ram was having a knife in his hand whereas, the other accused persons were armed with lathis. Ugma Ram was pulled down from the tractor. The accused party surrounded Ugma Ram and started assaulting him indiscriminately with the weapons held by them. The informant (Manak Ram) and his brother Nema Ram were present in his shop and saw the incident. Ratna Ram caught hold of Ugma Rama and Arjun Ram inflicted numerous knife blows on his back. Budha Ram inflicted a lathi blow on the back of the deceased due to which, he fell down. Ratna Ram, gave a prod by lathi on the neck of Ugma Ram. Ratna Ram caught hold of Ugma Rama and Arjun Ram inflicted numerous knife blows on his back. Budha Ram inflicted a lathi blow on the back of the deceased due to which, he fell down. Ratna Ram, gave a prod by lathi on the neck of Ugma Ram. Sukha Ram, Buksa Ram, Kamodari and Suganai (accused) rained lathi, fist and kick blows on Ugma Ram. The informant Manak Ram and his brother Nema Ram tried their level best to intervene and save Ugma Ram from the assault upon which they too were beaten and received numerous injuries at the hands of the accused party. The informant was pushed aside and Arjun Ram stabbed his brother Ugma Ram by the knife on his abdomen. It was alleged that the accused party hatched a prior conspiracy owing to the long standing dispute pending between the parties over the boundary wall ( [1] ) of a field and with this objective, they collected together, attacked and killed the informant's brother Ugma Ram. On the basis of this report, a formal FIR No.199/2011 was chalked out at the Police Station Merta City and investigation was commenced. Manak Ram and Nema Ram were got examined for their injuries at the Primary Health Center, Merta City. Nema Ram was found having a skin deep abrasion on his left scapular region. Manak Ram was found having two trivial abrasions on the toe and index finger of his left hand. The dead body of Ugma Ram was subjected to postmortem. The Medical Board opined that cause of death of Ugma Ram was stab injuries on various vital organs of his body including ribs, lungs, liver and heart. While conducting investigation, the Investigating Officer came to a conclusion that Ratna Ram, named as an accused in the FIR, was not involved in the incident and thus, he was not charge-sheeted. It may be noted here that at the initial stage, the prosecution filed an application under Section 190 Cr.P.C. for summoning Ratna Ram as an additional accused in the case. The said application was dismissed by the trial Court and the matter was left at that resulting into the exoneration of Ratna Ram attaining finality. It may be noted here that at the initial stage, the prosecution filed an application under Section 190 Cr.P.C. for summoning Ratna Ram as an additional accused in the case. The said application was dismissed by the trial Court and the matter was left at that resulting into the exoneration of Ratna Ram attaining finality. After completion of investigation, the accused Arjun Ram, Sukh Ram, Budha Ram, Buksa Ram and Kamodari and Suganai were charge-sheeted in the Court of the ACJM, Merta for the offences under Sections 147, 148, 149, 341, 323 and 302 I.P.C. Since the offence under Section 302 I.P.C. was exclusively Sessions triable, the case was committed to the Sessions Judge, Merta, who framed charges against the accused persons for the above offences. The accused pleaded not guilty and claimed trial. After prosecution evidence had been commenced, the case was transferred for trial to the court of Additional Sessions Judge, Merta. The prosecution examined as many as 20 witnesses in support of its case. Upon being confronted with the prosecution evidence in their statements under Section 313 Cr.P.C., the accused denied the same and claimed that they had been falsely implicated in the case for oblique motive. 4. After appreciating the submissions advanced by the defence and the prosecution and after evaluating the evidence available on record, the learned trial Judge proceeded to conclude that Manak Ram, the first informant was not present at the scene of the occurrence and did not see the incident. Reliance was placed by the trial court upon the testimony of P.W.4 Nema Ram and P.W.6 Shri Gheesa Ram as being the eye-witnesses to the incident. It was further held that the accused party, neither hatched any prior conspiracy nor had they collected at the scene of the occurrence in furtherance of common object of an unlawful assembly. This satisfaction was recorded by the trial court on the foundation that though the material prosecution witnesses alleged that Ratna Ram, Sukh Ram, Budha Ram, Buksa Ram and Kamodari and Suganai rained indiscriminate lathi blows upon the deceased. Upon postmortem being conducted, no corresponding injuries inflicted by lathis were noticed on the dead body of Ugma Ram. The trial court held that the participation of the accused except Arjun Ram for the fatal assault made upon Ugma Ram, was not established. Upon postmortem being conducted, no corresponding injuries inflicted by lathis were noticed on the dead body of Ugma Ram. The trial court held that the participation of the accused except Arjun Ram for the fatal assault made upon Ugma Ram, was not established. The highest case of the prosecution particularly, the statement of Nema Ram was considered sufficient to additionally implicate and connect the accused Budha Ram for causing a simple injury to this witness. Accordingly, after making entire evaluation and discussion, the Court below proceeded to decide the case in the above terms by the impugned judgment dated 15.07.2016. Being aggrieved of the said judgment, these three appeals have been preferred. 5. Shri J.S.Choudhary, Sr.Advocate assisted by Shri Amardeep Lamba representing the accused Arjun Ram in the appeal (CRLA No.797/2016) against conviction and the respondents-accused in the appeals against acquittal vehemently and fervently contended that the entire prosecution case is false and fabricated. The prosecution witnesses concealed the genesis of occurrence while lodging the FIR and while deposing in the court. The Court's attention was drawn towards the FIR (Ex.P/5); depositions of the material witnesses viz. Manak Ram P.W.3; Nema Ram P.W.4; Gheesa Ram P.W.6 and Smt.Jhankari P.W.8 and it was urged that from the testimony of these witnesses, it is manifest that the accused and the complainant parties are closely related to each other. The dispute of boundary wall was prevailing between the complainant party and only the accused Budha Ram. So far as the other accused are concerned, these witnesses categorically admitted that they had no involvement in the boundary dispute. Referring to the statements of P.W.4 Nema Ram and P.W.6 Gheesa Ram and the FIR, Shri Choudhary contended that it is manifest that the alleged assault by the accused on Ugma Ram was an incident in isolation and was not preceded by any other incident. However, drawing the Court's attention to the statements of P.W.3 Manak Ram and Jhankari P.W.8, Shri Choudhary pointed out that both these witnesses claimed that the assault made on Ugma Ram was preceded by a quarrel between Manak Ram the informant and the accused Buksa Ram, Arjun Ram and Ratna Ram. Shri Choudhary submitted that had any such quarrel taken place before the main incident, then Manak Ram would certainly have mentioned this fact in the FIR itself. Shri Choudhary submitted that had any such quarrel taken place before the main incident, then Manak Ram would certainly have mentioned this fact in the FIR itself. Shri Choudhary further pointed out that in the cross examination conducted from Smt. Jhankari P.W.8, being the mother of first informant Manak Ram and the deceased Ugma Ram, it has clearly been elicited that after the first quarrel took place between Manak Ram and the accused party, he immediately came home and that she did not allow him to go back to the shop thereafter. The witness emphatically stated that when Ugma Ram was assaulted, Manak Ram was at the house. Shri Choudhary urged that manifestly, the prosecution is guilty of concocting the evidence of Manak Ram so as to portray him to be an eye witness of the incident and thus, the First Information Report which was lodged by P.W.5 Manak Ram losses all significance and hence, cannot be read in evidence. As per Shri Choudhary once the veracity of the First Information Report itself comes under a cloud of doubt, the testimony of other witnesses who are closely related to each other becomes doubtful and cannot be relied upon. He further submitted that the witness Nema Ram P.W.4 and Geesha Ram P.W.6 admitted in their cross examination that their statements were recorded by the Police after four days of the incident. He contended that no explanation is forthcoming for this significant delay in recording statements of the so called eye-witnesses and thus, their evidence too deserves to be discarded. Shri Choudhary further submitted that the recovery of knife made in furtherance of information allegedly supplied by Arjun Ram is unbelievable for the reason that the recovery was made from an open place accessible to all & sundry thus, recovery of the weapon deserves to be discarded. Shri Choudhary further submitted that the incident took place in the heart of the village market place but despite that, not even a single independent witness was examined by the prosecution so as to unfold the true story and the prosecution case, which is founded on the tainted and partisan evidence of close relatives of the deceased, deserves to be discarded in toto. On these grounds, he implored the court to accept the appeal filed on behalf of convict Arjun Ram and to dismiss the appeals against acquittal. 6. On these grounds, he implored the court to accept the appeal filed on behalf of convict Arjun Ram and to dismiss the appeals against acquittal. 6. Per contra, learned Public Prosecutor and Shri Kartik Singh Lodha, Advocate appearing on behalf of Shri Vineet Jain, Advocate for the complainant vehemently and fervently opposed the submissions advanced by the learned defence counsel. They urged that testimony of the first informant Manak Ram and the injured witnesses Nema Ram and Buksa Ram is natural and reliable, and does not suffer from any significant contradictions, omissions or infirmities which may persuade the Court to cast a doubt thereupon. Their evidence is amply corroborated by the medical evidence. They submitted that the witnesses affirmatively and in unflinching terms stated that the accused waylaid Ugma Ram who was returning from his field; pulled him down from the tractor assaulted him indiscriminately by lathis, fists, kicks and a knife. Large number of stab injuries were inflicted to Ugma Ram which proved instantaneously fatal. The injuries were so forceful and were inflicted in such a brutal manner that the liver, lungs and the heart of the deceased were cut leading to excessive bleeding followed by instantaneous death. They thus submitted that minor contradictions in the statements of the prosecution witnesses whose presence at the spot was absolutely natural, deserve to be ignored and sought dismissal of the appeal against conviction filed by Arjun Ram and acceptance of the appeals against acquittal of the accused Sukha Ram, Buksa Ram, Smt.Kamodari and Smt.Suganai. 7. We have appreciated the submissions advanced by the learned defence counsel, learned Public Prosecutor and the learned counsel representing the complainant and have threadbare sifted the evidence available on record. Even though the trial court disbelieved and discarded the statement of Manak Ram first informant, we still propose to consider the First Information Report (Ex.P/5) and the testimony of Manak Ram to examine the credibility thereof. The most significant circumstance which is apparent from a bare reading of the FIR is that the first informant did not disclose that he has assaulted by some members of the accused party before the fateful incident in which, Ugma Ram was assaulted and killed. The first informant alleged in the F.I.R. that the accused waylaid and accosted Ugma Ram some distance before he reached the market. The first informant alleged in the F.I.R. that the accused waylaid and accosted Ugma Ram some distance before he reached the market. However, as per the site plan (Ex.P/9), the incident took place right in front of the shop where, the complainant used to work. Thus, there is a grave and irreconcilable contradiction in the story as set out in the F.I.R. and the evidence of Manak Ram vis-a-vis the observations noted by the Investigating Officer in the site inspection plan and so also the testimony of the eye-witness Nema Ram P.W.4 and Gheesa Ram P.W.6, who also alleged that the incident took place right in front of Manak Ram's shop. In such a situation, had Manak Ram seen the incident involving murder of Ugma Ram, then there was no occasion for him not to have mentioned in the written report that the assault took place in front of his shop. Thus, the evidence of Manak Ram suffers from grave contradiction in this regard. Though Manak Ram, while drafting the FIR as well as while testifying in the Court, claimed that he was present at the scene of the occurrence and allegedly saw the accused party assaulting Ugma Ram, but when Jankhari P.W.8, his mother was cross-examined by the defence, she admitted that a quarrel between Manak Ram and Buksa Ram preceded the main incident (in which Ugma Ram was killed). Thereafter, Manak Ram returned home. Smt.Jhankari P.W.8 emphatically stated in her cross-examination that she did not allow Manak Ram to return to the scene of occurrence and that he did not see the assault made on Ugma Ram with his own eyes. In this background, we are of the view that the finding recorded by the trial court in the impugned judgment that Manak Ram did not see the incident and that he was concocted and created to be an eye-witness is based on just and apropos appreciation of evidence available on record. We firmly concur with this finding. 8. Having held so, we now proceed to discuss the evidence of the two remaining eye-witnesses Nema Ram P.W.4 and Gheesa Ram P.W.6 whose testimony was assailed primarily on the ground that their statements were recorded by the Investigating Officer after undue delay of four days. We firmly concur with this finding. 8. Having held so, we now proceed to discuss the evidence of the two remaining eye-witnesses Nema Ram P.W.4 and Gheesa Ram P.W.6 whose testimony was assailed primarily on the ground that their statements were recorded by the Investigating Officer after undue delay of four days. However, on a perusal of the record, we find that the witness Nema Ram received an injury in the very same incident and his medical examination was got conducted at the hands of the Medical Officer, Primary Health Center, Merta City on 21.07.2011 at 10:15 a.m. on a police requisition. Apparently, Nema Ram was subjected to medical examination for the reason that he claimed to have been injured in the very same incident involving murder of Ugma Ram. Though, his injury was simple in nature but the fact that an injury was found on person of Nema Ram as deposed by him, corroborates his version that he was present at the spot and received the injury while trying to save the deceased. Nema Ram P.W.4 also stated about the presence of Gheesa Ram P.W.6 at the scene of occurrence. Gheesa Ram too, gave convincing and unflinching evidence about the assault made by Arjun Ram upon Ugma Ram with a knife. On a perusal of the statements of these two witnesses, we find that both did not state about any quarrel which may have taken place between Manak Ram and Arjun Ram, Ratna Ram and Buksa Ram before the assault made on Ugma Ram. Thus, to this extent, testimony of these two witnesses is inconsistent with that of Manak Ram. Both the witnesses further alleged that Ugma Ram brought his tractor in front of Manak Ram's shop, where accused accosted him. On a perusal of the site inspection plan (Ex.P/9), it is clear that the shop of Manak Ram is located in a 20 ft. wide lane, and in a thickly populated area. Thus, there was no possibility that the accused could have concealed their presence in this congested location. Hence, there is a grave contradiction in the story as set up in the F.I.R. and the evidence of these two witnesses regarding the place, where Ugma Ram was allegedly pulled down from the tractor by the accused party. Thus, there was no possibility that the accused could have concealed their presence in this congested location. Hence, there is a grave contradiction in the story as set up in the F.I.R. and the evidence of these two witnesses regarding the place, where Ugma Ram was allegedly pulled down from the tractor by the accused party. We feel that the version of these witnesses that the quarrel took place right in front of the shop of Manak Ram is more plausible and probable. During the cross-examination conducted from Gheesa Ram P.W.6, he was confronted with his police statement Ex.D/4 wherein, there is no allegation that Ratna Ram, Sugnai and Kamodari also participated in the assault made upon Ugma Ram. As per the prosecution case, as regards the first incident involving quarrel between the accused and the Manak Ram, it is alleged that Buksa Ram, Arjun Ram and Ratna Ram came to the shop and gave him a threat that they would demolish the boundary wall of the agricultural field. Ratna Ram was not charge-sheeted and hence, we are of the firm opinion that names of the accused other than Budha Ram and Arjun Ram were involved in the case by the interested and partisan prosecution witnesses by way of sheer over implication. 9. After making a threadbare evaluation of the statements of the two material prosecution witnesses Nema Ram and Buksa Ram, we are of the view that the actual genesis of the incident has been suppressed by these two witnesses and the quarrel appears to have taken place only between Ugma Ram on the one hand and the accused Arjun Ram and Budha Ram on the other hand and that too at the spur of the moment without any premeditation. So far as the other accused are concerned, their names have ex-facie been involved in the case in an attempt of pure over implication. So far as the other accused are concerned, their names have ex-facie been involved in the case in an attempt of pure over implication. Considering the fact that all the fatal injuries on the person of the deceased Ugma Ram were stab/incised wounds caused by a knife and are specifically attributed to the accused Arjun Ram and since the prosecution failed to examine even a single independent witness person from the locality, where the incident took place, we feel that it would be totally unsafe to rely upon the testimony of Nema Ram P.W.4 and Gheesa Ram P.W.6 so as to unsettle the acquittal of the accused-respondents Sukha Ram, Buksa Ram, Smt.Kamodari and Smt.Suganai as recorded by the trial court. 10. Law is well settled that the maxim "falsus in uno, falsus in omnibus" cannot be applied to Indian scenario and thus the Courts are required to sift and separate the chaff from the grain for reaching to the correct conclusion. Having appreciated the evidence available on record in light of the above principle, we feel that the trial court reached to the only just and proper conclusion based on apropos apprehension of evidence that the accused Arjun Ram assaulted the deceased Ugma Ram by repeated blows of knife causing him grievous injuries and seriously damaging his vital organs leading to instantaneous death. This finding and the conclusion that accused Budha Ram inflicted a simple injury to Nema Ram is also corroborated by evidence of the Medical Officer. This finding and the conclusion that accused Budha Ram inflicted a simple injury to Nema Ram is also corroborated by evidence of the Medical Officer. So far as the submission advanced by Senior Counsel Shri Choudhary that the statements of Nema Ram P.W.4 and Gheesa Ram P.W.6 should be discarded as their police statements were recorded after significant delay and that they did not divulge about the incident to the Investigating Officer for about four days from the incident, is concerned, we are of the view that as the names of these two persons were mentioned as eye-witnesses in the F.I.R. and since Nema Ram had already been medically examined for his injuries on the very next day of the murder, it was the prerogative of Investigating Officer when to record the statements of these witnesses under Section 161 Cr.P.C. No significant cross-examination was made by the defence from the Investigating Officer so as to seek an explanation regarding the delay occasioned in recording the statements of these two witnesses under Section 161 Cr.P.C. Thus, we feel that the evidence of these two eye-witnesses cannot be discarded in toto and has to be accepted to the extent they implicated the accused Arjun Ram for the murder of Shri Ugma Ram. Non-examination of the independent witnesses from the locality can in certain circumstances be a ground to discard the evidence of related witnesses and extend the benefit of doubt to the accused but in the facts of the present case, we feel that since the parties are closely related to each other and since the incident took place in a small village, it is quite likely that the villagers would prefer not to take a particular side by standing as witnesses in the case and thus their hesitation in coming forward to stand as witnesses to the incident can be understood. Hence, not much significance can be attached to the fact that the independent witnesses were not examined by the prosecution in support of its case. The Investigating Officer P.W.20 recorded the disclosure statement of Arjun Ram on 29.7.2011 (Ex.P/39) under Section 27 of the Evidence Act and recovered a blood stained knife in furtherance of such information vide recovery memo Ex.P/13 on the very same day. The Investigating Officer P.W.20 recorded the disclosure statement of Arjun Ram on 29.7.2011 (Ex.P/39) under Section 27 of the Evidence Act and recovered a blood stained knife in furtherance of such information vide recovery memo Ex.P/13 on the very same day. The knife as well as the blood stained clothes of the deceased were forwarded to the FSL for chemical and serological examination from where a report Ex.P/44 was received with the information that all the articles were stained with Blood Group 'O'. Thus, the blood group found on the knife recovered at the instance of the accused, tested positive and matched with the blood group of the deceased, lending credence, corroboration and assurance to the testimony of the two prosecution witnesses viz. Nema Ram and Gheesa Ram and the Medical Officer that the accused appellant Arjun Ram inflicted repeated knife injuries to the deceased Ugma ram resulting into his death. 11. In wake of the discussion made herein above, we are of the opinion that the learned trial judge appreciated the evidence available on record in a just and apropos manner for reaching to the only logical conclusion that the incident was not premeditated; that the fatal injuries to Ugma Ram were caused by Arjun Ram; that Budha Ram caused a simple injury to the deceased and that remaining accused had no role to play therein. Having tested the impugned judgment dated 15.7.2016 on the anvil of legality, rationality and just and fair appreciation of evidence, we find no infirmity therein warranting interference. Thus, the appeals fail and are hereby dismissed. 12. Record be sent back forthwith.