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2020 DIGILAW 606 (RAJ)

Rajiya v. State of Rajasthan

2020-08-21

KUMARI PRABHA SHARMA, SANDEEP MEHTA

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JUDGMENT Prabha Sharma, J. - Instant criminal appeal has been preferred by the accused appellants under Section 374(2) Cr.P.C. being aggrieved of the judgment dated 23.07.2012 passed by learned Additional Sessions Judge (Fast Track) No.1, Udaipur in Sessions Case No.10/2009 by which, they were convicted and sentenced as below :- Accused Rajiya Conviction for offences under Sections Sentences Default Sentence 302/34 IPC Life Imprisonment with a fine of Rs.1,000/- 1 months S.I. 4/25 Arms Act 1 years R.I. with a fine of Rs.500/- 15 days S.I. Accused Shankar Conviction for offences under Sections Sentences Default Sentence 302/34 IPC Life Imprisonment with a fine of Rs.1,000/- 1 months S.I. 323 IPC Six months R.I. 2. Succinctly stated the facts of the case are that on 08.10.2008, complainant Bhana (PW-5) lodged a written report with the SHO, Police Station Lasadia (Ex.P/3) alleging, inter alia, that his elder brother Rajiya and his son Shankar, whose land and house are situated adjacent to his house. They left their cattle to graze in the fields of the complainant and his brother Mohan. Upon complaining, they threatened to kill them. On 07.10.2008 around 04:00 pm, when he and Mohan went to Madawata Bus Stand on account of some urgent work, on seeing that cattle belonging to Rajiya were grazing in their field, his wife Dhulki asked Rajiya and Shankar to tie their cattle, whereupon they quarreled with his wife and pelted stones upon her. On seeing this, her uncle Anda and Kalki rescued her. The complainant's daughter and son told him about the said incident. He rushed to the house of Rajiya and Shanker and asked them about the said incident. On this, they threatened that they would kill him. Thereafter, at about 07:30 pm in the evening, when Mohan came to his house and heard about the incident, he also talked with Rajiya and Shankar regarding the grazing of the field by their cattle and beating his bhabhi. Being annoyed with this, Rajiya armed with sword and Shankar armed with lathi, came to his house in the night at about 09.00 p.m. and took Mohan with them to the field and started assaulting him. His wife Dhulki, Mohan's wife Delki, Uncle Anda and cousin Kalki tried to rescue Mohan. On their intervening, the accused run away. Being annoyed with this, Rajiya armed with sword and Shankar armed with lathi, came to his house in the night at about 09.00 p.m. and took Mohan with them to the field and started assaulting him. His wife Dhulki, Mohan's wife Delki, Uncle Anda and cousin Kalki tried to rescue Mohan. On their intervening, the accused run away. Due to non-availability of conveyance and since it was late night, they could not inform the police about the incident and on account of grievous injuries sustained by Mohan, he died. 3. On the basis of this written report, FIR No.88/2008 was registered at Police Station Lasadia, Udaipur for the offences under Sections 302, 323/34 IPC and Section 4/25 of Arms Act and the investigation was commenced. After investigation, a charge sheet came to be filed against accused appellant Rajiya for the offences under Sections 302, 323/34 IPC and Section 4/25 of the Arms Act and against accused appellant Shankar Meena for the offence under Sections 302, 323/34 IPC. 4. Since the offence under Section 302 IPC was sessions triable, the case was committed to the court of the Additional Sessions Judge (Fast Track) No.1, Udaipur for trial. Charges were framed against the appellants for the above offences, who pleaded not guilty and claimed trial. 5. The prosecution examined as many as 12 witnesses and got exhibited 25 documents in order to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing in the prosecution evidence, both the accused denied the same and claimed to be innocent. No evidence was led in defence. 6. After hearing the arguments advanced by the prosecution and the defence and appreciating the evidence available on record, the learned trial Judge, proceeded to convict and sentence the appellants as above. 7. Mr. Shambhoo Singh, learned counsel representing the appellants, vehemently and fervently contended that there was no motive or intention of causing injury because due to sudden trifling dispute regarding entering the cattle in the fields of the deceased, the quarrel had taken place. There was no evidence whatsoever on the record of the case so as to connect the appellants with the crime. There was no evidence whatsoever on the record of the case so as to connect the appellants with the crime. The prosecution has not proved the case beyond the reasonable doubt against the appellants as most of the witnesses are close relatives of complainant Bhana and Dhulki, the wife of the deceased and hence, they are interested witnesses. The independent eye witnesses PW-11 Anda and PW12 Kalki have not supported the prosecution story. It is further stated that from a perusal of the statements of the witnesses, the appellants cannot be held liable for committing murder of deceased Mohan. A sword was allegedly recovered for connecting the appellant Rajiya with the crime but there was no blood stain on the said recovered article. Lastly, it was argued that as per Post Mortem Report (Ex.P/8), there are four injuries on the body of the deceased, out of which, two injuries are incised wounds and two are abrasions and lacerated wounds and as per the statement of Dr. Digvijay Singh (PW-6), the cause of death was head injury and the Injury Nos. 2 and 4 could have been received by a fall and thus, the offence, if any, would not travel to beyond Section 304 II IPC. 8. In support of the contentions, learned counsel for the appellants has placed reliance on the following judgments of the Apex Court : (1) Arjun & anr. vs. State of Chattisgarh,2017 CrLR 183. (2) Surain Singh vs. State of Punjab, (2017) CrLR 386 . 9. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Mr. Shambhoo Singh and stated that the conclusion of guilt recorded against the appellants by the trial court is justified and the impugned judgment does not warrant any interference whatsoever. 10. We have given our thoughtful consideration to the submissions advanced at the bar, minutely perused the impugned judgment and thoroughly re-appreciated the evidence available on record. 11. According to the prosecution case, two occurrences took place on 07.10.2008. Firstly, the accused-appellants left their cattle free to graze in the fields of the complainant and the deceased, as a result of which, the cattle grazed their maize crop. Complainant's wife Dulki asked Rajiya and Shankar to take away their cattle and tie them. On account of this, both accusedappellants began to quarrel with her and pelted stones upon and injured her. Complainant's wife Dulki asked Rajiya and Shankar to take away their cattle and tie them. On account of this, both accusedappellants began to quarrel with her and pelted stones upon and injured her. The said incident pertaining to offence under Section 323 I.P.C. was proved by the evidence of witness PW-1 Dhulki herself and the medical evidence Ex.P/18. The second incident took place in the evening when Mohan (the deceased) came to his house and heard about the incident which occurred in the morning. He remonstrated with Rajiya and Shankar regarding the grazing of the field by their cattle and also about beating his Bhabi with stones. Thereafter, he came to his house. While Mohan was having his meal, Rajiya armed with sword and Shankar armed with lathi, came to his house, took Mohan with them outside and started beating him with sword and lathi. His wife Dhulki, Mohan's wife Delki, Uncle Anda and cousin Kalki tried to rescue Mohan and on their intervention, the accused rushed away. For this occurrence, the appellants were tried for the offences under Sections 302, 323/34 I.P.C. and under Section 4/25 of the Arms Act. 12. Pw-5 Bhana, the complainant appeared in the witness box and proved the FIR. No discrepancy was found in his statement. According to the FIR, eye witness was Delki, who was got examined in the court as PW-2 and stated that in the evening while her husband was having his meals, Shankar came and caught hold of his hand and took him outside and Rajiya inflicted injury on Mohan's head by sword. Shankar inflicted injuries by lathi. In cross-examination she admitted that when the first occurrence(incident with Dhulki) took place, she was not there but clearly stated that at the time of second occurrence, when Mohan was taking his meal, she was also taking meal nearby and she went to the spot on hearing Mohan's cries. No suggestion was given for this second incident that she had not seen the incident. Though she is the wife of deceased Mohan, but her presence at the scene of crime is natural and her credibility cannot be said to be suspicious only because she is wife of deceased Mohan. Other witnesses viz. PW-1 Dhulki, PW-3 Logar, PW-5 Bhana supported the prosecution story and stated on oath that Mohan died in the said incident on account of injuries inflicted by the appellants. Other witnesses viz. PW-1 Dhulki, PW-3 Logar, PW-5 Bhana supported the prosecution story and stated on oath that Mohan died in the said incident on account of injuries inflicted by the appellants. Thus, the argument of the learned counsel for the appellants that it is a case of sudden fight which took place between the parties is devoid of any substance. The accused came to the house of the deceased in a pre-planned manner with a common intention to kill him and that is why they were carrying weapons with them. The next contention of learned counsel for the appellants that most of the witnesses are close relatives and are interested witnesses, it is true that Delki (PW-2) is the wife of the deceased; but she cannot be called an 'interested' witness only because she is related (wife) to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in ensuring that an accused person is punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.-2 Delki had no interest in protecting the real culprit, and falsely implicating the appellants. The principles that have been stated in number of decisions are to the effect that evidence of a related witness can be relied upon if it is found to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be rejected. That apart, when a witness has a motive or makes false implication, the Court, before relying upon his testimony should seek corroboration in regard to material particulars. In the instant case, though the witnesses who have deposed against the accused persons are close relatives, but one of them Dhulki too had suffered injuries in the occurrence. Their version is consistent and nothing has been elicited in the crossexamination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the same as improbable or untrustworthy. Their version is consistent and nothing has been elicited in the crossexamination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the same as improbable or untrustworthy. Thus, the contention of the learned counsel for the appellants that the witnesses are close relatives and interested witnesses is also not tenable. 13. Pw-6 Dr. Digvijay Singh was also got examined by the trial court, who supported the injury report (Ex.P/7) of the complainant Dhulki and Post Mortem Report (Ex.P/8) of deceased Mohan and opined that the cause of death was the injuries to the brain. Thus, it is clear that the death of Mohan was due to the head injury caused by the accused-appellants by Rajiya and Shankar by sword and lathi. 14. Pw-10, Mohan Singh, the Investigating Officer, on the basis of the information furnished by the accused appellant Shankar Lal got recovered the lathi vide Seizure Memo (A-44) and on the basis of the information of the accused appellant Rajiya, got recovered the sword vide A-45. The Investigating Officer duly proved the factum of seizure of recovery of lathi and sword recovered at the instance of the accused. The accused appellants surrendered themselves on 21.10.2008 and on the same day, they gave the voluntary informations under Section 27 of the Evidence Act to the Investigating Officer, which led to the incriminating recoveries. As per the FSL Report (Ex.P/23), the sword recovered from the accused Rajiya was found stained with 'AB' group blood. We find that the defence failed to even suggest foul play in the manner of investigation while conducting crossexamination. Thus, there is nothing on record, which can persuade this Court to hold that the Investigating Officer had any occasion to falsely implicate the accused. 15. So far as the judgments cited by learned counsel for the appellants, we find that they are not applicable in the facts of the present case as every case depends upon facts of each case. In the case in hand, neither there was sudden fight without premeditation nor the occurrence took place suddenly, rather it was a pre-meditated crime, whereas the cases cited by the learned counsel for the appellants are with respect to sudden fight. 16. In the case in hand, neither there was sudden fight without premeditation nor the occurrence took place suddenly, rather it was a pre-meditated crime, whereas the cases cited by the learned counsel for the appellants are with respect to sudden fight. 16. The repetition of blows and the seat of injuries, completely negates the contention of Shri Rathore that the offence should be toned down from the charge under Section 302 IPC to a lesser degree. 17. In light of the discussion made hereinabove, we are of the firm opinion that the trial court was absolutely justified in appreciating the evidence and coming to a conclusion that the prosecution has been able to prove the guilt of the accused appellants leading evidence beyond all manner of doubt. We find no reason to interfere in the impugned judgment dated 23.07.2012 passed by the learned Additional Sessions Judge (Fast Track) No.1, Udaipur in Sessions Case No.10/2009, which is based on a thorough and apropos discussion of the evidence available on record. Accordingly, the same is affirmed. 18. The appeal, thus, fails and is hereby dismissed being devoid of merit. The record of the trial court be sent forthwith.