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Dhanna Ram and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 99 of 1979
Judge
Reported in1984WLN(UC)123
AppellantDhanna Ram and ors.
RespondentState of Rajasthan
Excerpt:
criminal trial - reliability of--witness gives statement on oath--not shattered in cross examination--held, sessions judge was justified to rely on his evidence.;the presumption is then when a witness givee a statement on oath it true unless it stands shattered and shaken in cross-examination. as stated above, there is nothing in the cross-examination of these three eye witnesses to put their testimonies at a discount. we are of the view that the learned sessions judge was perfectly justified in putting reliance on their evidence.;(b) criminal procedure code - fir 3 miles distance between place of incident and police station--fir lodged within 2-3 hours--narration of incident and names of accused and witness given held it was not fabricated.;the first information report ex. p.7 was lodged.....s.s. byas, j.1. by his judgment dated january 29, 1979 the learned sessions judge, merta convicted and sentenced the appellants as under:_______________________________________________________________________________sr. no. name of accused offence u/s sentence awarded 1 2 3 4_______________________________________________________________________________(1) dhanna ram (i) 302, ipc imprisonment for life with a fine of rs. 1000/-in default of the payment of fine to further undergo six months rigorous imprisonment. (ii) 148, ipc one year's r-i. with a fine of rs. 500/-, in default of payment of fine to further undergo three months rigorous imprisonment. (iii) 325, ipc one year's rigorous imprisonment with a fine of rs. 500/- in default of the payment of fine to farther undergo three.....
Judgment:

S.S. Byas, J.

1. By his judgment dated January 29, 1979 the learned Sessions Judge, Merta convicted and sentenced the appellants as under:

_______________________________________________________________________________

Sr. No. Name of accused Offence u/s Sentence awarded

1 2 3 4

_______________________________________________________________________________

(1) Dhanna Ram (i) 302, IPC Imprisonment for life

with a fine of Rs. 1000/-in

default of the payment of fine

to further undergo six months

rigorous imprisonment.

(ii) 148, IPC One year's r-i. with a fine of

Rs. 500/-, in default of payment

of fine to further undergo three

months rigorous imprisonment.

(iii) 325, IPC One year's rigorous imprisonment

with a fine of Rs. 500/- in default

of the payment of fine to farther

undergo three months rigorous

imprisonment.

(iv) 324/149 IPC Six months rigorous imprisonment wit

a fine of Rs. 200/-, in default of

the payment of fine to further

undergo one month's rigorous

imprisonment.

(v) 323/149, IPC One month's simple imprisonment.

(2) Durga Ram (i) 302/149, IPC Imprisonment for life

with a fine of Rs. 1000/- Bf in

default of the payment B of fine

to further undergo B six months r.i.

(ii) 148, IPC One year's rigorous imprisonment

with a fine of

Rs. 500/-, in default of B the

payment of fine to B further undergo

three B months' r.i.

(iii) 325/149 IPC One year's rigorous imprisonment with

a fine of Rs. 500/-, in default of B

the payment of fine to further undergo

three month's B rigorous imprisonment.

(iv) 324/149, IPC Six month's rigorous imprisonment

with a fine of Rs. 200/- in default

of payment of fine to

B further undergo one month's rigorous

imprisonment

(v) 323/149, IPC One month's simple imprisonment.

(3) Smt. Kesuri (i) 302/149, IPC Imprisonment for life

with a fine of Rs. 1000/ B in default

of payment of fine to further undergo

six months r.i.

(ii) 148, IPC One year's rigorous imprisonment with

a fine of Rs. 500/-, in default of

the payment of fine to further undergo

three months' r.i.

(iii) 325/149, One year's rigorous imprisonment with

a fine of Rs. 500/-, in default of

die payment of fine to further undergo

three month's rigorous imprisonment.

(iv) 324/149, Six months rigorous imprisonment with

a fine of Rs.. 00/- in default of the

payment of fine to further undergo one

month's r.i.

(v) 323/149 One month's simple imprisonment

(4) Ishra (i) 302/140 IPC Imprisonment for life with

a fine of Rs. 1000/-, in default of

the payment of fine to further undergo

six month's rigorous imprisonment

(ii) 148, IPC One year's rigorous imprisonment with

a fine of Rs. 500/-, in default of the

payment of fine to further undergo three

months' rigorous imprisonment

(iii) 325/149, One year's rigorous imprisonment with

IPC a fine of Rs. 500/-in default of the

payment of fine to further undergo one

month's rigorous imprisonment

(iv) 324/149 IPC Six month's rigorous imprisonment

with a fine of Rs. 200/- in default

of the payment of fine to further

undergo one month's rigorous imprisonment

(v) 323, IPC One month's simple imprisonment.

2. The substantive sentences were directed to run concurrently while those in default of the payment of fine consecutively. The appellants have comeup in appeal to challenge their conviction and sentence.

3. Briefly stated, the case set-up by the prosecution is that PW. 1 Mst. Dhulki and PW. 3 Adu Ram are residents of village Chandaroon Tehsil Degana district Nagaur. The deceased-victim Megha Ram Jat was also a resident of this village. PW. 2 Chotha Ram Brahmin is a resident of village Meediyan and was a Hali (hired-servant) of PW 1 Mst. Dhulki and was living in her Dhani in village Chandaroon at the relevant time. PW. 3 Adu Ram and the deceased-victim Megha Ram were tending their live-stock (Aver) in 1 the field of Smt. Dhulki (PW. 1), a few steps away from her Dhani. In the I night between June 11 and 12, 1977, PW. 3 Adu Ram and the deceased-vic-tim Megha Ram were sleeping near their live-stock. PW 2 Chotha Ram and I PW 1 Dhulki were sleeping in ber Dhani. In the mid-night the appellants | accompanied with Har Karan (died during trial) and Mangu Ram (acquitted I by the trial court) came there where Aduram and Megha Ram were sleeping. Accused Isher Ram had a knife while the other miscreants had Lathies. They I made an on-slaught on Megha Ram and started jointly lending blows to him. Adu Ram raised cries. PW 1 Dhulki and PW. 2 Chotha Ram, hearing his cries, came there on the spot. The miscreants continued to strike blows to Megha Ram. The blows were hit on Megha Ram's head, feet, thigh and other parts. PW. 3 Aduram tried to intervene but was threatened to remain away otherwise he too would not be spared. After giving a severe beating to Megha Ram, the miscreants went away Megha Ram sustained multiple injuries. There was profuse bleeding from his wounds and the clothes he was t wearing got drenched with it. PW. 3 Aduram went to the victim's brother Prema Ram apprised him of the incident. Prema Ram immediately left for I Police Station, Degana and presjnted written report Ex. P.7 of the occurrence at about 5.00 A.M. on June 12,1977. The police registered a case under Sections 147, 307, 323, IPC and took-up the investigation. PW. 8 Bhanwar Bharti, the Head Constable of Police, who was Incharge of the Police Station arrived on the spot, inspected the site and prepared the site memo. The injuries of Megha Ram were examined at about 7.00 A.M. on June 12, 1977 by PW 5 Dr. Mohammed Niyaz, the then Medical Officer Incharge, Primary Health Centre, Degana, He noticed the following injuries f on the body of Megha Ram:

(1) Lacerated wound 1/2' x 1/6' x 1/2' deep oblique on the outer side of left eye brow.

(2) Abrasion with bruise 3' x 1' horizontal 1-1/2' away from ala of the nose to tragus of left side

(3) Abrasion 3'xl' horizontal 1-1/2' below the injury No. 2 swelling extending from temporal region to mandibular region on the left side

(4) Lacerated wound 1' x 1/6' x 1/4' deep on the upper part and frontal aspect of the left ear

(5) Incised wound 3/4' x 1/6 x 3/4' deep vertical on the lateral aspect of lower 1/3' of the left arm 2' above the lateral epicondyl.

(6) Bruise 4' x 1/2' horizontal 4' above the lateral epicondyl on left arm

(7) Bruise 3-1/2' x 1' oblique 5' above the bead of febula on the lateral aspect of left side

(8) Bruise 3-1/2' x 1' oblique 2' below the head of febula on the lateral aspect of left side

(9) Bruise 5' x 3' oblique 5' below the head of febula left side

(10) Bruise 4-1/2' x 3/4' oblique just below paand parallel to injury No. 9

(11) Lacerated wound 1' x 1/2' x 1/2' deep vertical on the left lower limb 5' below the tibial tuberosity

(12) Lacerated wound with bruise 1' x 1/2' x 1/4' deep vertical 2-1/2' below left tuberosity of leg.

(13) Lacerated wound with bruise 1' x 1/2' x 1/4' deep oblique 9-1/2' below tibial tuberosity on chin of tibia on medial aspect left side.

(14) Lacerated wound with bruise l'xl/2'x 1/4' deep vertical inner side of the leg along with the above injury '

(15) Bruise S-l/2' x 3/4 horizontal 4' above the knee joint.

4. The injury report issued by him is Ex. P.2. All the injuries were designated as simple. Injury No. 5 was opined to have been caused by some sharp-dged-weapon while the remaining by some blunt object. Since the condition of Megha Ram was found serious, Dr. Mohammed Niyaz advised to take the injured to Ajmer for treatment. Megha Ram was taken to Ajmer and and was got admitted in J.L. Nehru Hospital, Ajmer, Despite the treatment, Megha Ram did not survive and passed away at about 1.50 A.M. on June 18,1977. The police added Section 302, I.P.C, during investigation. The post mortem examination of the victim's dead body was conducted at about 11.40 A.M. On June 18,1977 by Medical Jurist Dr. S.C. Nama (PW. 4). He noticed the following injuries on the victim's dead body:

(1) Both the eye blackened

(2) Swelling on left side of face

(3) Stitched wound on the right leg on the upper one third of leg 1 size 1' long.

(4) Stitched wound on the middle of right leg 1' long.

(5) Stitched wound lower one third right leg at the upper border 1' long.

(6) Stitched wound on right mecburney points 2/1-2' a long with cathether at right ilise fossa.

(7) There was fracture of neck of left humerous.

(8) Stitched wound 1/1-2' on the left eye brow.

(9) There was fracture of mandible at both ramus.

On scalp examiuation there was blood clots on the left side of occipital, temporal and frontal regions. There was horizontal fracture secrebur of skull to the left ear involving left frontal, parietal and temporal bones. There was extra-dural haemorrhage with blood clots and subdural haemotoma was present.

5. In the opinion of Dr. Nama, the cause of death of the victim was head injury, though he resrved his opinion till the receipt of the report from the Chemical Examiner. On the receipt of the report Ex.P 3 from the Chemical Examiner, Dr. Nama confirmed the opinion that the death of the victim had taken place due to head injury. According to him, all the injuries were collectively sufficient in the ordinary course of nature to cause the death. He was also of the opinion that injuries No. 1 and 2 were also individually sufficient in the ordinary course of nature to cause the death. The post-mortem examination report issued by him is Ex. P.1. The inquest report of the victim's dead body was prepared. The accused persons were arrested and in consequence of the information furnished by them, Lathies and sickle were recovered. The blood-stained clothes of the victim were also seized and sealed. On Chemical Examination they were found stained with human blood. On the completion of investigation the police submitted a challan against the appellants and two others viz. Har Karao and Mangu Ram in the Court of Additional Munsif and Judicial Magistrate, Merta, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under various sections of the Penal Code against the appellants and the two others, to which they pleaded not guilty and faced the trial. In defence, the accused took the plea that accused Dhanna Ram was adopted by the husband of Smt. Dhulki (PW 1). PW 1 Smt. Dhulki, on the death of her husband did not recognise this adoption. Litigation between accused Dhanna Ram and Smt. Dhulki ensued. As such they have been falsely implicated. During trial, the prosecution examined nine witnesses and filed some documents. In defence the accused examined two witnesses. Accused Har Karan passed away during trial. On the conclusion of trial the learned Sessions Judge found no incriminating material against accused Mangu Ram. He was consequently acquitted. The learned Sessions Judge found the various offences duly proved against the appellants. They were, therefore, convicted and sentenced as mentioned at the very out-set. Aggrieved against their conviction and sentence, the appellants have taken this appeal.

6. We have heard the learned Counsel for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully.

7. Before proceeding further we may point out that the cause of death of the victim was not assailed before us by the learned Counsel for the appellants. We have gone through the testimony of Dr. Nama (PW 4) who conducted the post-mortem examination. We find no good and convincing reasons to distrust what he stated about the case of the victim's death. It, therefore, stands proved that the death of victim Megha Ram was not natural but homicidal.

8. In assailing the conviction, the first contention raised by the learned Counsel is that the appellants were convicted on wholly insufficient and unreliable evidence. It was argued that PW. 1 Smt. Dhulki, PW. 2 Chotha Ram and PW. 3 Adu Ram were not independent witnesses. Admittedly, there was litigation between accused Dlunna Ram and PW 1 Smt. Dhulki. PW. 2 Chotha Ram was in the service of PW. 1 Smt. Dhulki PW. 3 Adu Ram was a cousin of the deceased victim. It was argued that the occurrence is alleged to have taken place in the mid night. The witnesses were not in a position to correctly identify the miscreants. Since no independent witness was examined, the conviction is not free from risk In reply, the learned Public Prosecutor submitted that since the occurrence took place in the field near the Dhani, the only witnesses who could see the occurrence were PW. 1 Smt. Dhulki, PW. 2 Chotha Ram and PW. 3 Adu Ram. It was argued that their presence on the spot was quite natural. PW. 3 Adu Ram had no enmity with the appellants. The First Information Report was lodged promptly without any delay. The names of the accused persons were mentioned therein and the whole narration of the incident was also describe d in it. The testimony of a witness cannot be disbelieved simply because he happens to be a near relative of the deceased-victim. It was argued that in these circumstances the Court below was perfectly justified in accepting the testimony of these three witnesses as true. We have taken the respective submissions into consideration.

9. PW. 1 Smt. Dhulki, PW. 2 Chotha Ram and PW. 5 Adu Ram are the ocular witnesses of the occurrence. PW. 3 Adu Ram was sleeping near the deceased-victim to keep a watch on their live-stock. He stated that in the mid-night the appellants accompanied with two others came there on the spot where he and Megha Ram were sleeping. Accused Ishera Ram had a knife while the remaining had Lathies. They started striking blows to Megha Ram in quick succession. The blows were hit on the head, feet thighs and other parts of Megha Ram. There was profuse bleeding from his wounds. He tried no intervene but was threatened to remain away otherwise he too would meet the same fate. The same narration of the incident was given by PW 1 Smt. Dhulki and PW. 2 Chotha Ram. They deposed that on hearing the cries, they got up and rushed to the spot where they found the appellants and two other persons striking blows to Megha Ram. Accused Isher Ram had a knife while the others bad lathies. They further deposed that they also asked the appellants and the two others not to beat Megha Ram but their request fell on deaf's ears and the miscraents continued to lend blows to the victim. There was profuse bleeding from the victim's wounds and the clothes he was wearing got drenched with it.

10. All these three witnesses were cross examined at length but nothing helpful to the accused could be elicited from them PW. 3 Adu Ram has no enmity with the appellants. So also, PW. 2 Chotha Ram who is a Brahmin by caste, has no strained relations with the appellants. It is true that PW 1 Smt. Dhulki is in litigation with accused Dhanna Ram but that alone is not sufficient to discard to that she testified on oath. Her presence her own field on the spot is quite natural because the occurrence took place in where she resides in a Dhani.

11. Learned Counsel appearing for the appellants could not subscribe any cogent reason as to why the testimony of these three ocular witnesses of the occurrence should not be accepted as reliable and true. The presumption is that when a witness gives a statement on oath, it is true unless it stands shattered and shaken in cross-examination. As stated above, there is nothing in the cross-examination of these three eye witnesses to put their testimonies at a discount. We are of the view that the learned Sessions Judge was perfectly justified in putting reliance on their evidence. On a careful scrutiny of what they stated, we are unable to take a view different from that taken by him we therefore, hold that the six culprist including the four appellants went to the Dhani of PW. 1 Smt. Dhulki where Megha Ram was sleeping in the field near his live-stock. They made an on-slaught and struck blows to him with their weapans. Accused Ishera Ram had then a knife and the rest had lathies.

12. We may also mention that the First Information Report Ex. P.7 was lodged promptly within 2 to 3 hours of the occurrence. In this FIR Ex. P.7 the whole narration of the incident has been given including the names of all the appellants. The names of the witnesses have also been lodged at about 5.11 A.M. on June 12, 1977 whereas the occurrence had taken place about two three hours before. The distance between the place of occurrence and the Police Station, Degna is three miles.

13. It was next argued that the offence made out is not that of murder under Section 302, IPC. It was submitted that admittedly there was no bad blood between the appellants and the deceased-victim Megha Ram. No intention, therefore, can be attributed to them that they intended to cause his murder. It was also argued that the beating took place between the night of June 11 and 12, 1977 whereas the victim died at about 11.40A.M. On june 18, 1977 i.e. nearly after six days of the incident. Only one injury was found on the head of the victim. In these circumstances the offence made out is that of culpable homicide not amounting to murder punishable under Section 304 Part II, IPC Reliance in support of the contention was placed on Inder Singh and Ors. v. The State of Punjab AIR 1955 SC 439 William v. the State of Madhya Pradesh AIR 1956 SC 116, Chand and Ors. v. State of Uttar Pradesh AIR 1972 SC 955, Hardeosingh and Ors. v. State of Punjab 1975 Cr. LR SC 95, Kishore Singh and Ors. v. state of Madhya Pradesh 1977 Cr. LR SC 436 and Randheer Singh v. State of Punjab 1981 SCC (Criminal) 856.

14. In reply, it was contended by the learned Public Prosecutor that the offence was committed during night. The head injury was found sufficient by the doctor in the ordinary course of nature to cause the death. As such the offence is squarely covered by Clause 3rdly of Section 300, IPC. Reliance was placed on Bakatawar and Ors. v. state of Haryana AIR 1979 SC 1006 and Tahal Singh and Ors. v. state of Panjab AIR 1979 SC 1347. We have taken the respective submissions into consideration.

15. Admittedly there was no bad blood between the appellants and the deceased-victim Megha Ram. There is nothing on record form which we may infer that the appellants had any grudge or axe to grind against the deceased-victim. The injury on the head was caused by an ordinary lathi having no iron rod. The victim died nearly after six days of the occurrence. In view of these facts and circumstances, we are unable to arrive at a conclusion that the appellants had an intention to cause death of the victim.

16. In Indersigh's case, though the injury was found sufficient in the ordinary course of nature to cause the death and yet as the intention to cause the death was missing, the offence was held to be that under Section 304 Part II IPC. Their Lordships observed as under:

While agreeing with both the Court below that it was the appellant who was responsible for inflicting the injuries which ultimately resulted in the death of the deceased we are, however, of the opinion that even though even though the blows were inflicted by the appellant on the head of the deceased with force, the lathi not being iron shod and the deceased being a young man and strongly built the appellant could not under the circumstances be held to have been actuated with the intension of causing the death of the deceased, nor do we think despite the medical evidence, that the injury was sufficient in the ordinary course of nature to cause death, seeing that he survived for three weeks and seeing on the doctor's examination that an injury of that kind is not incurable. But he no doubt knew that be would be causing such injury as was bodily likely to cause death and the offence committed by him would fall under Section 304 Part I and not under Section 302, Penal Code.

17. In William's case, it was observed:

The doctor thought that it was only likely to cause death. The appellant is only 22 years old and not a doctor and can hardly be presumed to have had this special knowledge at the time he struck the blow. All blows on the head do not necessarily cause death, and as the deceased lived for ten days, we are unable to deduce' from the nature of the injury and from the mere fact of death that the appellant had, or should have had, the special knowledge that Section 300 of the Indian Penal Code requires.

It was further observed in this very case that:

This by itself is not enough to bring the case within the scope of Section 300. There is nothing to warrant us to attribute to the appellant knowledge that the injury was liable to cause death or that it was so imminently dangerous that it must in all probability cause death. The fact that Donala lived for ten days after wards shows that it was not sufficient in the ordinary course of nature to cause the death.

18. In the case of Hardeosingh an injury was caused to the deceased-victim by a Kripan on the head. But since the intention to cause that particular injury was found missing, the offence was taken to be that under Section 304, IPC. So, also, in the case of Kishoresingh and others the injury was caused on the vital part but the victim died many days after the occurrence. It was held that this was not sufficient to bring the case within the four corners of Section 300. Clause 3rdly, IPC. In the case of Randhirsingh, their Lordships of the Supreme Court held that in order to attract Clause 3rdly of Section 300, IPC the intention to inflict a particular injury which in the ordinary course of nature was sufficient to cause the death, must be present. The injury was caused on the head of the victim and yet the offence was taken to be under Section 302 Part II, IPC because the intention to inflict the fatal injury was not infereble from the facts and circumstances of the case.

19. In the case of Baktawarsingh and others relied upon by the learned Public Prosecutor, the weapon used was a Gandasi and the victim had died due to the infliction of the injury just after his admission in the hospital. As such the offence was taken to have been covered by Clause 3rdly of Section 300, IPC. In the instant case it is not the situation. In the case of Baktawarsingh, there was motive for the con mission of the crime which is missing in the instant case. Apart from that, Gandasi was used and the deceased succumbed to the injuries just after his admission in the hospital. In the instant case, only one injury has been inflicted on the vital part of the body i.e. head and the other injuries were inflicted on non-vital parts. There is no motive at all for the commission of the crime. The deceased victim away nearly after six days of the occurrence. The case of Tehal Singh is an authority only for applying Section 34, IPC.

20. Reverting to the case in hand, the weapon used was only ordinary Lathies having no iron-shod. There was no bad blood between the deceased and the appellants. The victim died nearly after six days of the occurrence. In the circumstances we are unable to hold that the offence made out is that of murder punishable under Section 302 IPC. In as much as the death has been caused, the knowledge can be attributed to the appellants that they did an act which was likely to cause the death. The offence made out is therefore, covered by Section 304 Part II, and not under Section 302 IPC.

21. Accused Mst. Kesuri was below 21 years of age at the time of her conviction. Her arrest memo shows her age to be 18 years at that time. So also accused Durga Ram, according to his arrest memo, was 11 years of age and a little more when he was convicted Since both these accused persons were below 21 years of age at the time of their conviction, they should not be sentenced to any punishment in absence of any adequate and special reasons in view of the mandatory provisions of Sections 360 and 361, Cr. PC. No previous conviction stands at their discredit. One of them is a women while the other is a minor boy. We found no reason as to why the benefit of probation should not be extended to them. It would be, therefore, proper to release them on the probation of good conduct.

22. In the result, we partly allow the appeal of accused (I) Dhanna Ram, (2) Durgaram, (3) Mst. Kesuii and (4) Isher Ram. Their conviction and sentence under Sections 302 and 302/149, IPC are set aside and instead accused Dhanna Ram is convicted under Section 304 Part II while the remaining are convicted under Section 304 Part II read with Section 149, IPC. Accused Dhanna Ram and Isher Ram are sentenced to eight years rigorous imprisonment with a fine of Rs. 500/-, in default of the payment of the fine to further undergo six months rigorous imprisonment under Section 304 Part II and 304 Part II read with Section 149, IPC respectively. 23. The conviction of the appellants for the remaining offences are maintained. The sentences awarded to accused Dhanna Ram and Isher Ram for the remaining offences are maintained. Substantive sentences of accused Dhanna Ram and Isher Ram will run concurrently while those in default of the payment of fine consequtively.

24. As regards accused Mst. Kesuri and Durga Ram, instead of sentencing then at once to any punishment for any offence, it is hereby directed that they shall be released on their entering into a personal bond in the sum of Rs. 5000/- together with one surety in the like amount to the satisfaction of the learned Sessions Judge, Merta to appear and receive sentence when called upon during a period of two years and in the mean time to keep the ' peace and be of good behaviour. They are allowed one month's time to submit the aforesaid bonds.

25. In case the amount of fine is realised, a sum of Rs. 1500/- will be paid as compensation to the widow of the deceased-victim. If the appellants want to deposit the fine ni jail, they are allowed to do so.


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