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Ram Singh Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 7/1974
Judge
Reported in1983WLN(UC)554
AppellantRam Singh
RespondentThe State of Rajasthan
Excerpt:
.....& not under section 302.;no 'kalpewali' lathi was recovered from the appellant or any other accused persons. from the evidence on record it is not clear as to what the witnesses mean by 'kalpewali' lathi and as to whether it is a lathi with a sharp cutting metal attached to it. further more, it is not established from the evidence of prosecution witnesses 1, 2, 3 and 4 as to which particular part of the body of deceased was hit by the appellant. on the basis of the evidence of the aforesaid witnesses it is not possible to hold that it was the appellant who had inflicted injuries on the head of the deceased. in the circumstances it can not be held that the prosecution has succeeded in establishing beyond reasonable doubt that it was the appellant who had inflicted an, injury with a..........had been snatched by them. her husband expressed his ignorance about the opium. there upon all the accused persons started assaulting her husband and herself with fists and kicks and also forced him to take liquor and thereafter they tied her husband with a rope to the branch of a banyan tree and they assaulted him with 'gandasi' and lathis. in the said report smt. khawasi further stated that she raised an alarm and thereafter all the five accused persons assaulted her with 'gandasi' and lathis and threw her at a distance in the field. in the meanwhile her daughter chameli (pw 2), her son shantilal (pw 3), and nathia kanjar pw 4) reached there and any took her to harnikhera and brought her to the police station. according to the said report kalu singh, dulesingh and amarsingh, who are.....
Judgment:

S.C. Agrawal, J.

1. This appeal has been filed by appellant Ramsingh against his conviction for the offence Under Section 302 IPC and the sentence of imprisonment for life and a fine of Rs. 100/- imposed on him for the said offence by the Additional Sessions judge, Jhalawar in his judgment dated November 30, 1973 in Sessions Case No. 40/1973. In the Sessions case aforesaid five persons, including the appellant were prosecuted in respect of charge Under Sections 148/302/149 and 323/149 IPC. The charge Under Section 302/149 IPC related to the murder of one Sultan Kanjar and the charge under Section 323/149 related to the injuries inflicted on the person of Smt. Khawasi (PW 1) wife of Sultan deceased. The Addl. Sessions Judge acquitted the other four co-accused, viz,, Bheru Singh, Mangilal, Motisingh and Nathu Singh of all the charges. The Additional Sessions Judge acquitted the appellant also of the charges Under Sections 148 and 323/149 IPC and while acquitting the appellant of the offence Under Section 302/149 IPC, he held that the appellant guilty for the offence Under Section 302 IPC.

2. The case of the prosecution is that on 20th April, 1973. at about 1.30 p.m. Smt. Khawasi, wife of Sultan (deceased) (PW 1) lodged an oral report (Ex. P 1) at police station Gangdhar in district Jhalawar, wherein it was stated that on the morning of 20th April, 1974 the appellant came to her house in village Harnikheda and asked her husband to accompany him to receive the grain in lieu of the wages for working as Chowkidar and thereupon she and her husband went along with the appellant to Bharkhedi and reached there at about 8 a.m.. The appellant took them first to the well. The other four co-accused were present there from before. They were armed with 'Kalpewali' Lathis and were taking liquor. As soon as she (complainant) and her husband reached there accused Mangilal asked them to sit down and asked for the return of the opium which had been snatched by them. Her husband expressed his ignorance about the opium. There upon all the accused persons started assaulting her husband and herself with fists and kicks and also forced him to take liquor and thereafter they tied her husband with a rope to the branch of a banyan tree and they assaulted him with 'Gandasi' and Lathis. In the said report Smt. Khawasi further stated that she raised an alarm and thereafter all the five accused persons assaulted her with 'Gandasi' and Lathis and threw her at a distance in the field. In the meanwhile her daughter Chameli (PW 2), her son Shantilal (PW 3), and Nathia Kanjar PW 4) reached there and any took her to Harnikhera and brought her to the police station. According to the said report Kalu Singh, Dulesingh and Amarsingh, who are related to the accused person, were present at their wells at that time and they had asked the accused persons not to assault her husband and herself and the accused persons did not pay any heed to that also. In the report it was also stated that her husband is laying tied to the branch of the banyan tree and that he may be killed. On the basis of the aforesaid report a case Under Sections 148, 342, 325, 330 and 307 IPC was registered and investigation was commerced. The investigation was conducted by Vijay Bahadur (PW 13) who was the SHO, Police Station Gangdhar on 20th April, 1973. The Investigating Officer reached the scene of the occurrence on 2nd April, 1973 and prepared the site plan (Ex. P 15). He also siezed the blood smeared earth from the field of Kalusingh vide memo (Ex P 19), a rope from the banyan tree vide memo (Ex. P 20) and two empty bottles of liquor and other articles vide memo (Ex. P 21). On 24th April, 1973, on the basis of information given by Chameli a dead body (skeleton) was found in the field of Raghunathsingh and it was seized vide recovery memo (Ex. P 24). After the recovery of the dead body, the memo of description of the dead body (Ex. P 18), the site plan of the place of the recovery of the dead body (Ex. P 16) were prepared. The clothes found on the dead body were seized vide memo (Ex. P 17) On the basis of the clothes found on the dead body it was identified as that of Sultan deceased and then inquest report (Ex. P 25) of the dead body was also prepared. The post mortem examination of the dead body was conducted by Dr. R.C. Dube, Medical Officer Incharge hospital, Gangdhar on 25th April, at 8 a m. According to the post mortem report (Ex. P 9) there was a transverse cut by a sharp cutting weapon about 2 ' in length over the right parietal bone of the head, a fracture of the mastoid bone of right side, transeverse cut by sharp cutting weapon about 1 1/2' over the lateral tubercity of the tibia bone, transverse cut about 1' by sharp cutting weapon over the mid of shine of tibia, a piece of fibula was attached at the lower l/3rd of tibia whose upper end was cut by sharp cutting weapon, on the right side, the second rib was cut by sharp cutting weapon, and on the left side the second and fourth ribs were broken and whole foot was absent from ankle joint. According to the opinion of the medical officer the cause of death was intra cranial heamorrhage due to head injuries or shock due to multiple injuries caused by sharp weapon. Dr. R.C. Dube bad also examined the injuries of Smt. Khawasi on 20th April, 1973 at 2 p.m. and had prepared the injury report (Ex. P 10). According to the said injury report Smt. Khawasi had a lacerated wound 2 1/2'x1/4'x1/4' over upper 1/3rd of the left forearm, a bruise 2' x 1/2' over right shoulder and swelling 1' x I' one inch below the little finger of right hand. The appellant was arrested on 1st May, 1973 & the other accused persons were arrested on various dates from 1st May, 1973 to 16 May, l973. On the basis of information given by accused Nathusingh, Motisingh & Mangilal, two 'Gandasis' and a Lathi were recovered. After completing the investigation the police filed a charge sheet against all the five accused persons in the court of Munsif Magistrate Bhawani Mandi, who, after holding an enquiry, committed them for trial to the court of Sessions after framing charges Under Sections 148, 302/149& 323/144 IPC. The said charges were read over to the accused persons by the Addl. Sessions Judge, Jhalawar. The accused persons pleaded not guilty and claimed to be tried.

3. The prosecution, in support of its case, examined 13 witnesses out of whom Smt. Khawasi (PW 1), Smt. Chameli (PW 2), Shantilal (PW 3), Nathia (PW 4), Amarsingh (PW 5). Kalusingh (PW 6), Kana (PW 7), Kesar Singh (PW 8), Dulehsingh (PW 9) and Heerka (PW 10) have been examined as the eye witnesses of the occurrence. Out of them however PW 4 to 10 did not support the prosecution case and they were declared hostile. Bhagwan Singh (PW 11) has been examined to prove the involvement of the accused persons in transactions relating to opium but he also did not support the prosecution case and was declared hostile. Bhawanisingh (PW 12) is the attesting witness of memos Ex. P 15 to P 24. Vijay Bahadur (PW 13) is the Investigating Officer. Dr. R.C. Dube was not produced before the trial court but his statement (Ex. P 37) recorded before the committal court was brought on record. The accused persons in their statements recorded Under Section 342 Cr. P.G. denied the prosecution case. The appellant has stated that the witnesses were deposing against him on account of enmity and under pressure of the police. The appellant did not adduce any evidence in support of his defence.

4. The Additional Sessions Judge held that the skeleton that was recovered on 24th April, 1973 was that of Sultania and that there were sharp cuts indicating that the deceased must have been hit by sharp weapon for causing his death. The Addl. Sessions Judge, also held that from the evidence of Smt Khawasi (PW 1), Chameli (PW 2) and Shantilal (PW 3) it was established that the appellant had come to call the deceased and that the deceased as well as Smt. Khawasi had accompanied the appellant to his field for the purpose of collecting grain in lieu of wages for working as chowkidar. The Addl. Sessions Judge was also of the view that from the evidence of prosecution witnesses 1, 2, 3 and 4 it was established that the appellant had assaulted the deceased. The Additional Sessions Judge was however, of the view that the participation of the other co-accused in the occurrence had not been established beyond doubt. The Addl. Sessions Judge also disbelieved the evidence with regard to the recovery of the two 'Gandasis' and the Lathi at the instance of some of other co-accused parsons on the view that Bhawanisingh (PW 12), who was attesting witness of the recovery memos, has stated, during the course of cross examination, that no recovery was made in his presence. In view of the findings aforesaid the Addl. Sessions Judge acquitted all the accused persons of the charges levelled against them. The Addl. Sessions Judge also acquitted the appellant of the charges Under Sections 148, 302/149 and 323/149 IPC. The Addl. Sessions Judge however, convicted the appellant of the offence Under Section 302 IPC on the view that from the evidence of prosecution witnesses 1, 2, 3 and 4 it was established that the deceased had died on account of injuries inflicted by the appellant. The Additional Sessions Junge has, however, held that the weapon by which the injuries Were caused was either 'Pharsi' or Lathi and that it is not established as to what was the weapon in the hand of the appellant at the time of the incident. Feeling aggrieved by the aforesaid conviction and sentence, the appellant has filed this appeal.

5. We have heard Shri M.M. Singhvi, the learned Counsel for the appellant and Shri R.C. Maheshwari learned Public Prosecutor for the State.

6. Shri Singhvi has submitted that the conviction of the appellant for the offence Under Section 302 IPC and the sentence imposed on him for the said offence cannot be sustained in as much as no reliance can be placed on the testimony of prosecution witnesses 1, 2, 3 and 4. In this regard Shri Singhvi has invited our attention to the statement of Smt. Khawasi (PW 1) and has pointed out that Smt. Khawasi has admitted during the course of cross examination that before the incident she did not know any of the accused persons except the appellant but in the FIR Smt. Khawasi has mentioned the names of the other four co-accused which means that Smt. Khawasi while lodging the FIR had given the names of those four accused persons at the instance of some other person. Shri Singhvi has also submitted that the testimony of Smt. Khawasi that she was assaulted and after the assault she was dragged and thrown in another field as belied by medical evidence in as much as no injury to show dragging was found on Smt. Khawasi. Similarly with regard to the testimony of Smt. Chameli (PW 2) and Shantilal (PW 3) Shri Singhvi has submitted that they happen to be the daughter and the son of the deceased and Smt. Khawasi and their testimony also suffers from serious infirmities and that they have also named the other four accused persons without knowing them. With regard to the testimony of Shantilal (PW 3) Shri Singhvi has also submitted that during the course of his examination before the committal court he did not support the case of the prosecution and he was declared hostile. As regards Nathia (PW 4) Shri Singhvi has submitted that he happens to be the nephew of the deceased and further more he has been declared hostile because he did not support the prosecution case during his examination before the trial court. The submission of Shri Singhvi was that the testimony of the aforesaid witness does not inspire confidence and, therefore, reliance cannot be placed on their evidence to hold that it was the appellant who had taken the deceased and Smt Khawasi with him to collect the grain in lieu of the wages for working as chowkidar and that Smt. Khawasi and the deceased had accompanied the appellant to his field where he was assaulted by the appellant and others.

7. We have carefully perused the evidence of Smt. Khawasi (PW 1), Smt. Chameli (PW 2), Shantilal (PW 3) and Nathia (PW 4). It is true that there are certain infirmities in the evidence of Smt. Khawasi (PW 1). But the aforesaid infirmities relate to the participation of the other co-accused in the incident. In so far as the role of the appellant is concerned the testimony of Smt. Khawasi is consistent that it was the appellant who had come to the field of the deceased to call him to receive grain in lieu of wages and there upon the deceased along with Smt. Khawasi had accompanied Ram Singh to his field and there he was assaulted by Ram Singh and others. The testimony of Smt. Khawasi finds corroboration from the evidence of Smt. Chameli (PW 2) and Shantilal (PW 3). It is true that Shantilal (PW 3), during the course of his examination before the committal court, was declared hostile but the point on which he had departed from his previous police statement before the committal court was with regard to the complicity of the other co-accused. In so far as the appellant is concerned the statement of Shantilal, both in the committal court as well as during the course of trial has been consistent and he has stated that the appellant had come to the house of the deceased and that the deceased along with Smt. Khawasi bad gone with the appellant to his field and subsequently when they reached the field of the appellant they found that the deceased was being assaulted by the appellant and others. Nathia (PW 4) has also supported this part of the prosecution case but did not support the prosecution case as against the four accused persons and, therefore, he was declared hostile. In our opinion on the basis of the evidence of prosecution witnesses 1, 2, 3 and 4 it can be held that the prosecution has succeeded in establishing, beyond reasonable doubt, that the appellant had come to the house of deceased and had asked him to come and collect the grain in lieu of the wages and thereupon the deceased along with Smt. Khawasi had gone with the appellant to his field and after reaching there the deceased was assaulted by the appellant and certain other persons,

8. Shri Singhvi has next submitted that even if it be held that the appellant had come to the house of the deceased and that the deceased had accompanied the appellant to his field it cannot be said that the appellant had inflicted injuries on the person of the deceased which, resulted in his death and that in the circumstances the appellant cannot be held guilty for the murder of the deceased and the conviction of the appellant and the sentence imposed on him for the offence Under Section 302 IPC cannot be sustained. We find considerable force in the aforesaid contention of Shri Singhvi. According to the post mortem report (Ex. P. 9) the death of the deceased was caused by intra cranial haemorrhage due to head injuries or shock due to multiple injuries caused by sharp weapon over the body. Dr. R.C. Dube who had conducted the post mortem examination of the deceased, in his statement (Ex.P. 37) has stated that apart from the head injury no other injury was independently sufficient to cause death. This would show that the death of Sultania was caused by the injury caused with sharp cutting weapon on the head of the deceased.

9. In order that the appellant may be held guilty of the offence of murder Under Section 302 IPC it will be necessary for the prosecution to show that the appellant was armed with a sharp cutting weapon and that he had inflicted an injury with a sharp cutting weapon on the head of the deceased. We, however, find that as regard the weapon which was used by the appellant for the purpose of assaulting the deceased the evidence of the prosecution witnesses is not consistent. In the FIR no particular weapon has been assigned by Smt. Khawasi to the appellant. She has only stated that the other four accused were having 'Kalpewali' Lathis. In her statement in the trial court Smt. Khawasi has however, stated that Nathusingh accused was having a plain Lathi and the other accused persons were having 'Kalpewali' Lathis. To the same effect is the evidence of Smt. Chameli and Shantilal. Nathia (PW 4) does not mention the weapons of the accused persons and has stated that be was not able to see what was in the hands of the accused persons as they were standing near the deceased. In her statement before the committal court Smt. Chameli (PW 2) had, however, stated that appellant and accused Moti Singh were having Lathis. She has disowned the a foresaid statement when she was confronted with it during the course of cross examination in the trial court. It would thus be seen that in their statements before the trial court Smt. Khawasi (PW 1), Smt. Chameli (PW 2) and Shantilal (PW 3) have deposed that the appellant was armed with a 'Kalpewali' Lathi but in her previous statement before the committal court Smt. Chameli (PW 2) had stated that the appellant was armed with a plain Lathi and in the FIR Smt. Khawasi (PW 1) did not state that the appellant was armed with a 'Kalpeweli' Lathi. No 'Kalpewali' Lathi was recovered from the apoellant or any other accused persons. From the evidence on record it is not clear as to what the witnesses mean by 'Kalpewali' Lathi and as to whether it is a Lathi with a sharp cutting metal attached to it. Further more, it is not established from evidence of prosecution witnesses 1, 2, 3 and 4 as to which particular part of the body of deceased was hit by the appellant. On the basis of the evidence of the aforesaid witnesses it is not possible to hold that it was the appellant who had inflicted injuries on the head of the deceased. In the circumstances it cannot be held that the prosecution has succeeded in establishing beyond reasonable doubt that it was the appellant who had inflicted an injury with a sharp edged weapon on the head of the deceased which resulted in his death. In our opinion, therefore, the appellant cannot be held responsible for causing the death of deceased Sultan and the conviction of the appellant for the offence Under Section 302 IPC and the sentence imposed upon him for the said offence cannot be sustained. On the basis of the evidence on record the appellant can be held guilty only for the offence of causing simple hurt punishable Under Section 323 IPC.

10. The appellant was arrested on 1st May, 1973 and he has remained in custody during the course of investigation enquiry and trial and after conviction also he remained in jail till his sentence was suspended and he was ordered to be released on bail by this court on 27th February, 1974 He has thus remained in custody for a period of nearly ten months. Taking into consideration the facts and circumstances of the case we are of the opinion that the ends of justice would be served if the sentence for the period of imprisonment already undergone by him is imposed on the appellant for the offence Under Section 323 IPC.

11. In the result the appeal is partly allowed. The conviction and sentence of the appellant for the offence Under Section 302 IPC is set aside. The appellant is convicted for the offence Under Section 323 IPC and is sentenced to the period of imprisonment already undergone by him. The appellant is on bail. He need not surrender. His bail bonds shall stand discharged.


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