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2019 DIGILAW 2627 (RAJ)

Asha Ram v. State of Rajasthan

2019-10-01

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT 1. The appellant Asha Ram has been convicted and sentenced as below vide judgment dated 30.08.2017 passed by the learned Additional Sessions Judge, Parbatsar, District Nagaur in Sessions Case No.07/2013: Offences Sentences Fine Fine Default sentences Under Section 302/34 IPC Life Imprisonment Rs.20,000/ - 02 Months' Simple Imprisonment 2. Being aggrieved of his conviction and sentences, the 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 hereinbelow:- 4. The complainant Ram Chandra (PW-1) lodged a written report (Ex.P/1) at the Police Station Gachhipura on 27.10.2012 alleging inter alia that on 26.10.2012 at about 8 O' Clock in the evening, as usual, his father Shri Ram was sitting on the platform of the Shiv Temple in the public chowk of the village Paladi Raja. Shri Bhinv Singh Rajput was sitting besides his father. While both were sitting and talking to each other, Asha Ram (the accused appellant herein) and Rugharam (who absconded and was arrested later) came around armed with sharp weapons viz. axe and farsi and immediately launched an assault on his father's head. Bhinv Singh raised a hue and cry on which, the neighbours Mangilal and Chena Ram came around running. They also saw the accused assaulting his father by sharp weapons. His father received serious head injuries in the incident and was on the verge of death. The eye witnesses tried to save his father but could not succeed in their attempt. His father received numerous injuries on his head and also on the other parts of the body. He received information of the assault at his house on which, he too ran towards the place of the incident and saw the accused going away towards the house of Bheru Singh. The witnesses present at the spot namely Bhinv Singh, Mangilal and Chenaram told him of the events. As his father was in a precarious condition, they immediately took him to the Government Hospital, Gachhipura where no doctor was available. Thus, his father was taken to Degana. The doctor at Degana gave primary treatment and then, referred his father Shri Ram to Ajmer where, he was undergoing treatment in the Intensive Care Unit of the J.L.N. Hospital. The incident took place in the late hours of the night and his father was very serious. Thus, his father was taken to Degana. The doctor at Degana gave primary treatment and then, referred his father Shri Ram to Ajmer where, he was undergoing treatment in the Intensive Care Unit of the J.L.N. Hospital. The incident took place in the late hours of the night and his father was very serious. As he was engaged in treatment, the report was lodged with some delay. On the basis of this report, an FIR No.96/2012 (Ex.P/2) was registered at the Police Station Gachhipura for the offences under Sections 341, 323 and 307 read with Section 34 IPC and investigation was commenced. The injured Shri Ram expired on 06.11.2012 on which, the offence under Section 302 IPC was added to the case. 5. The investigating officer undertook the routine steps of investigation, arrested the accused Asha Ram. The accused Rugharam could not be apprehended and absconded. Thus, a charge-sheet was filed against the accused Asha Ram for the offence under Section 302 IPC read with Section 34 IPC whereas, the charge-sheet against Rugharam was filed under Section 299 Cr.P.C. showing him to be absconding. As the offence under Section 302 IPC was exclusively Sessions triable, the case was committed to the Court of the Additional Sessions Judge, Parbatsar who framed charge against the accused appellant for the offence under Section 302 IPC read with Section 34 IPC. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 13 witnesses and exhibited 24 documents to prove its case. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations but did not choose to lead any evidence in defence. After hearing the arguments advanced by the prosecution and the defence and appreciating and evaluating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellant as above. Hence this appeal. 6. Learned counsel Shri Sandhu representing the appellant, vehemently and fervently contended that the entire prosecution case is false and fabricated. The FIR was lodged after significant delay. The testimony of the so-called eye witness Bhinv Singh (PW-2) is contradicted by the medical evidence. The witness Chenaram did not support the prosecution case. Hence this appeal. 6. Learned counsel Shri Sandhu representing the appellant, vehemently and fervently contended that the entire prosecution case is false and fabricated. The FIR was lodged after significant delay. The testimony of the so-called eye witness Bhinv Singh (PW-2) is contradicted by the medical evidence. The witness Chenaram did not support the prosecution case. As per the evidence of Bhinv Singh (PW-2) and Mangilal (PW-3), both the accused were allegedly armed with sharp weapons but, not a single incised wound was noticed on the person of the deceased Shri Ram when postmortem was carried out and thus, the entire prosecution case is falsified. That, even if the highest allegation of the prosecution set out by the eye witnesses Bhinv Singh and Mangilal is accepted, manifestly, the accused appellant inflicted a single blow on the hand of the deceased and thus, his conviction for the offence under Section 302 IPC read with Section 34 IPC is not sustainable and instead, the accused deserves to be convicted for the offence under Section 323 IPC only. He further submitted that as per the evidence of Dr. Satyanarayan Maheshwari (PW-5) who initially examined Bhinv Singh at the Degana Hospital, only two injuries were noticed, one on his left hand and the other on his head. Thus, as per Shri Sandhu, the larger number of injuries depicted in the postmortem report (Ex.P/15) proved by Dr. Sumer Singh (PW-13), must have been caused while the deceased was being transported to the hospital. In the alternative, his submission was that these injuries have been falsely shown in the postmortem report so as to aggravate the case of the prosecution against the accused. Shri Sandhu further submitted that the deceased was sitting on a platform and thus, the possibility of the head injury having been received by a fall from the platform cannot be ruled out. On these grounds, he implored the Court to set aside the impugned judgment and accept the appeal. 7. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He contended that the deceased was an old man of 60 years. He was simply talking to Bhinv Singh while sitting on the platform outside the Shiv Temple. Both the accused came around armed with dangerous weapons like Farsi and axe. 7. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He contended that the deceased was an old man of 60 years. He was simply talking to Bhinv Singh while sitting on the platform outside the Shiv Temple. Both the accused came around armed with dangerous weapons like Farsi and axe. Without any rhyme or reason, they accosted the deceased and inflicted repeated blows on his person. The appellant aimed the blow on the head of Shri Ram, however, in order to avoid the injury, Shri Ram raised his hand and the resultant blow landed on his hand. Learned Public Prosecutor further submitted that the incident took place at 8 O' Clock in the evening and thus, it must have fallen quite dark by that time. Thus, it would not have been possible for the witnesses to notice the exact side with which, the weapons were used on the deceased and hence, as per the learned Public Prosecutor, merely because, no sharp weapon injury was noticed on the body of Shri Ram, that by itself, would not discredit the evidentiary worth of the eye witnesses. He contended that the eye witnesses Bhinv Singh and Mangilal are independent persons having no connection with the deceased nor were they inimical to the accused in any manner. Thus, they had no cause or reason to falsely implicate the accused in this case. They gave truthful testimony regarding the assault and thus, their evidence was rightly relied upon by the trial court. He further submitted that the discrepancy in the number of injuries noticed by Dr. Satyanarayan Maheshwari (PW-5) while preparing the injury report (Ex.P/9) and Dr. Sumer Singh (PW-13) while preparing the postmortem report (Ex.P/15), is explicable inasmuch as, Dr. Satyanarayan Maheshwari just provided primary treatment to patient whose condition was quite precarious. Thus, the doctor as well as the attendants would be in a hurry to ensure that the victim was taken to the higher center. Thus, the medical officer who was acting in haste, might have failed to notice the presence of the non-prominent injuries on the body of the deceased. This discrepancy, cannot prejudice the evidence of the doctor who conducted postmortem upon the deadbody of Shri Ram at the J.L.N. Hospital, Ajmer. Thus, the medical officer who was acting in haste, might have failed to notice the presence of the non-prominent injuries on the body of the deceased. This discrepancy, cannot prejudice the evidence of the doctor who conducted postmortem upon the deadbody of Shri Ram at the J.L.N. Hospital, Ajmer. Learned Public Prosecutor submitted that it is not a case of repeated blows being inflicted to the victim because as per the postmortem report, four injuries on the hand and four injuries were noticed on the head of the deceased when the postmortem was carried out. Injury No.7 was the post operative wound and thus, even if the same is excluded, multiple injuries were present on the body of the deceased which were inflicted by the two assailants. The head injuries were so forceful that the right side temporal bone and both fronto-parietal bones were shattered into pieces. The left posterior middle wall of left orbital was also fractured. Thus, as per the learned Public Prosecutor, the assault was perpetrated in a highly cruel manner which shows that the intention of the accused was nothing other than committing the murder of Shri Ram. He further urged that merely because one of the eye-witnesses, Chena Ram did not support the prosecution story and was declared hostile, that by itself, would not discredit the evidentiary value of witness Bhinv Singh (PW-2) and Mangilal (PW-3) who have given unflinching testimony establishing the active participation of the accused in the assault. He further submitted that the incident took place on 26.10.2012. The injured was initially taken to Gacchipura Hospital and then he was taken to the Degana Hospital from where, he was referred to the J.L.N. Hospital, Ajmer. He was got admitted in the Hospital at Ajmer where he was provided treatment. Thereafter, the first informant returned to the Police Station Gachhipura and lodged the report as early as on 27.10.2012 at 8.00 am. in the morning and thus, there is no delay in lodging the FIR which can create any doubt on the genuineness of the prosecution case. Learned Public Prosecutor further submitted that the victim was casually sitting on the platform outside the Shiv Temple and was talking to Bhinv Singh. The accused came there fully prepared to kill the deceased. They were armed tooth and nail having an axe and Farsi in their hand. Learned Public Prosecutor further submitted that the victim was casually sitting on the platform outside the Shiv Temple and was talking to Bhinv Singh. The accused came there fully prepared to kill the deceased. They were armed tooth and nail having an axe and Farsi in their hand. Immediately on reaching the place of incident, they launched the pre-meditated assault on the victim and belaboured him by the weapons in their hand. He thus urges that even if the weapons were sharp, the possibility of the same having been used by reverse side cannot be ruled out and thus, the discrepancy in the medical evidence and the ocular testimony is well explained. On these ground, he implored the Court to dismiss the appeal and affirm the conviction of the appellant. 8. I have given my thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have minutely re-appreciated the evidence available on record. 9. We are satisfied with the contention of the learned Public Prosecutor that there was no delay in lodging of the FIR whatsoever. As is evident from the material available on record, the incident took place on 26.10.2012 at 8 O' Clock in the evening. The assault made by the accused on the victim resulted into multiple injuries being caused to him. The victim's condition was critical and he was immediately taken to the hospital at Gachhipura. Owing to non-availability of doctor, he was taken to Degana Hospital. The Medical Officer at Degana Hospital provided him primary treatment and then considering his critical condition, the victim was referred to Ajmer. He was admitted to the Intensive Care Unit of the J.L.N. Hospital, Ajmer. Manifestly, the doctor at Degana must have been anxious to ensure that the victim received prompt treatment and that is why, just after providing primary treatment, he referred the victim to the J.L.N. Hospital, Ajmer. Considering the serious condition of the victim, it could not be expected of the doctor to make a very minute examination of the victim and therefore, the omission to notice the total number of injuries present on his person is very well explainable. The doctor at Ajmer Hospital who conducted the postmortem upon the deadbody had no animosity or prejudice against the accused or in favour of the victim that he would indulge in exaggerating the number of injuries noticed on the deadbody. The doctor at Ajmer Hospital who conducted the postmortem upon the deadbody had no animosity or prejudice against the accused or in favour of the victim that he would indulge in exaggerating the number of injuries noticed on the deadbody. There was no cause whatsoever which could have persuaded the doctor to amplify the number of injuries found on his person. Manifestly, the examination of the deadbody would be more meticulous than that could be expected of the doctor who gave primary treatment to the victim while he was alive. Therefore, we have no hesitation in holding that the discrepancy in the number of injuries noticeable from the medical report (Ex.P/9) and the postmortem report (Ex.P/15) is well explained and precedence has to be given to the injuries noticed by the medical officer who carried out postmortem on the deadbody at Ajmer hospital. As per the postmortem report (Ex.P/15), four lacerated wounds were noticed on the left hand of the deceased whereas four lacerated wounds were noticed on his head when postmortem was carried out. Apparently thus, the accused must have used the weapons from the reverse side and inflicted repeated injuries thereof to the victim. Hence, there is no hesitation for this Court to hold that while inflicting the injuries to the victim, the common intention of the assailants was to commit his murder and nothing else. 10. The prosecution case is founded on the testimony of two eye witnesses Bhinv Singh (PW-2) and Mangilal (PW-3). Both of them, while deposing, categorically mentioned that the deceased Shri Ram was sitting on the platform of the temple in the public chowk of village Paladi Raja. The accused came there in the evening at about 8 O' Clock. Both were armed with sharp weapons viz. axe and Farsi. Without any rhyme or reason, and without any provocation, they launched an assault on the victim. Repeated blows were given on his head and hands as a result whereof, the victim fell down. A hue and cry was raised by the witnesses on which, numerous persons collected and the accused ran away. On a perusal of the cross-examination conducted from Bhinv Singh, it does not come out that as per him, Mangilal came to the spot after he raised a hue and cry. A hue and cry was raised by the witnesses on which, numerous persons collected and the accused ran away. On a perusal of the cross-examination conducted from Bhinv Singh, it does not come out that as per him, Mangilal came to the spot after he raised a hue and cry. Therefore, the possibility of Mangilal having seen the entire incident is negated and it is quite likely that he must have seen only the last part of the assault. 11. Be that as it may. Mangilal too identified the two accused as the assailants and thus, to this extent, his evidence is relevant and provides significant corroboration to the unimpeachable testimony of Bhinv Singh. We are duly satisfied that from the evidence of Bhinv Singh alone, the participation of the accused in the incident is well established. Though, it is also true that Bhinv Singh made a slight exaggeration while deposing in the Court in context to his 161 Cr.P.C. statement (Ex.D/2) regarding the part of the body where Asha Ram inflicted the blow but the fact remains that despite this contradiction, the evidentiary worth of Bhinv Singh's statement is not significantly impeached. As a consequence, we have no hesitation in holding that from evidence of Bhinv Singh, the active participation of the accused appellant in the incident is well established. 12. Having held that the accused assaulted the deceased by the reverse side of a sharp weapon, we now proceed to consider the submission of Shri Sandhu that the accused appellant was wrongly held liable for the offence under Section 302 IPC with the aid of Section 34 IPC. In this regard, on going through the evidence of Bhinv Singh, it is clear that he and the deceased were casually sitting on the platform, talking to each other, at which point of time, without any rhyme or reason, the accused came to the place of incident armed tooth and nail and launched the unprovoked attack on Shri Ram who was 60 years old man. He was belaboured and repeated blows were inflicted to him by the reverse side of the sharp weapons carried by the accused. The fact that the blows were repeated is duly established from the evidence of Bhinv Singh and the medical evidence as deposed by Dr. Sumer Singh (PW-13). He was belaboured and repeated blows were inflicted to him by the reverse side of the sharp weapons carried by the accused. The fact that the blows were repeated is duly established from the evidence of Bhinv Singh and the medical evidence as deposed by Dr. Sumer Singh (PW-13). Thus, it can be safely inferred that by launching the assault on Shri Ram in the manner stated by prosecution witness Bhinv Singh, the intention of the accused was to kill the victim and nothing else. The blows were repeated till the deceased fell down on the ground as a result of the injuries which landed on his head. The head blows were very forceful as noticed in the postmortem report (Ex.P/15). The number, dimension and location of the injuries totally nullified the defence theory that the head injuries were caused in a fall. The circumstances noticeable above, lead to the irrefutable conclusion that it was the accused who came to the place of incident purely with the common intention to kill the deceased and no longer, had they succeeded in inflicting the blows and falling him down, they went away from the place of the incident. Therefore, the accused were undoubtedly clothed with the common intention of committing murder. The trial court, in our opinion, rightly convicted the accused appellant for the offence under Section 302 IPC with the aid of Section 34 IPC. 13. It is our firm opinion that the impugned judgment dated 30.08.2017 was passed by the learned trial court after thorough and apropos appreciation of the evidence available on record and the same does not suffer from any illegality, infirmity or error whatsoever warranting interference. 14. Hence, the appeal fails as being devoid of merit and is hereby dismissed as such. 15. Record be returned to the trial court forthwith.