Rajasthan High Court - Jodhpur
Phoosa Ram vs State on 20 January, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 688 / 2008
Phoosa Ram S/o Sh. Surjaram, aged 41 years, by caste
Meghwal, Resident of Amarsar, Police Station Sandawa,
Tehsil Sujangarh, District Churu (Raj.)
[At presently lodged in District Jail, Churu]
----Appellant
Versus
State of Rajasthan
----Respondent
______________________________________________
For Appellant(s) : Mr. N.L. Joshi.
For Respondent(s) : Mr. Vishnu Kachhawaha, PP.
______________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
JUDGMENT
Date of Judgment ::: 20th, January, 2017 [Per Hon'ble Mr. G.K. Vyas, J.] In this criminal appeal filed by the accused appellant, Phoosa Ram, u/s 374 (2) Cr.P.C., the judgment dated 27th of June, 2008 passed by Addl. Sessions Judge, Sujangarh, District Churu (for brevity, hereinafter referred to as „Trial Court‟) in Session Case No.2/2008 is under challenge, whereby the trial court convicted the accused (2 of 10) [CRLA-688/2008] appellant for offences under Sections 302 and 341 of IPC and sentenced him as infra:
302 of IPC: Life Imprisonment and fine of Rs.100/- and in default of payment of fine, to further undergo one month‟s simple imprisonment.
341 of IPC: One month‟s simple imprisonment.
As per facts of case, complainant PW.1 Jassa Ram, submitted a written report (Ex.P/1) on 20.12.2007 at about 04.30 PM before the S.H.O., Police Station Sandwa, alleging therein that his son, namely, Bhura Ram went to village to get his mobile charged. When he was returning from the village, the accused appellant, Phoosa Ram, way laid him and took in the courtyard, where he inflicted injuries on his son by a „Gandasi‟ on his head. At that time, Laluram and Nanuram and some other persons came there and saw the incident. Due to injuries, Bhura Ram succumbed.
Upon the aforesaid written complaint, FIR was registered and after completion of investigation, the Police filed charge sheet against the accused appellant under Sections 302, 341 & 342 of IPC in the court of learned Judicial Magistrate No.2, Sujangarh, from where the case was committed for trial to the court of Addl. Sessions Judge, Sujangarh, District Churu.
(3 of 10) [CRLA-688/2008] For framing charges against the accused appellant, an opportunity was granted to the accused as well as learned APP to advance their arguments and after hearing both of them, the trial court framed charges against the accused appellant for the offence u/s 302, 341 and 342 of IPC, which the accused appellant denied and prayed for trial.
In the trial, statements of 9 prosecution witnesses were recorded and 28 documents were exhibited in support of prosecution case.
After recording the statements of prosecution witnesses, statements of accused appellant were recorded u/s 313 Cr.P.C., in which he gave reply and accepted the incident while giving reasons for committing such offence. However, no oral or documentary evidence was produced by the accused appellant in his defence.
The learned trial court thereafter finally heard the arguments and vide judgment dated 27th of June, 2008 convicted the accused appellant for the offence u/s 302 and 341 of IPC and sentenced him, referred above. The judgment impugned is under challenged in this appeal.
At the threshold, learned counsel for the accused appellant submitted that in view of explanation given by the accused appellant in his statements recorded u/s 313 Cr.P.C., the incident in which Bhura Ram (deceased) died, it not disputed, however, it is argued that upon the reasons stated in the explanation furnished by the (4 of 10) [CRLA-688/2008] accused appellant in reply to the question put to him u/s 313 Cr.P.C., even if the entire evidence is accepted, then also, it is a case in which due to illicit relations of the deceased with the wife of accused appellant, the injuries were inflicted by the accused appellant to the deceased when he entered into his house. Therefore, on the ground of right of private defence, the conviction recorded by the learned trial court u/s 302 of IPC may be altered to 304 Part I of IPC because as per allegations of the prosecution only one injury was caused by the accused appellant to the deceased by "Gandasi". Therefore, obviously it cannot be said that there was any intention of the accused appellant to cause death of deceased. It is also argued that in the postmortem report (Ex.P/28) the opinion of the doctor is that death was caused due to coma as a result of head injury.
Learned counsel for the appellant submitted that although accused appellant has not denied the incident in his statements recorded u/s 313 Cr.P.C. but explained why occurrence took place, therefore, while taking a lenient view the conviction of the accused appellant for offence under Section 302 of IPC may kindly be set aside and the same may be altered to Section 304 Part I of IPC and sentence awarded to the accused appellant may be reduced to the period already undergone by him as he is behind the bars since 20.12.2007.
(5 of 10) [CRLA-688/2008] Per contra, learned Public Prosecutor vehemently argued that no lenient view is required to be taken in this case because as per explanation given by the accused in his statements u/s 313 Cr.P.C., is not corroborated by any of the witnesses nor any question with regard to illicit relations of the deceased with the wife of accused appellant, were put to the witness during trial. It is also argued by learned Public Prosecutor that as per prosecution case, a doubt crept in the mind of accused appellant that deceased has done some black magic upon him and his family, therefore, obviously there was motive left with the accused appellant to cause death of deceased, therefore, the learned trial court while relying upon the evidence of motive for committing murder, has rightly convicted the accused appellant for the alleged offence. The appellant has not denied the incident, however, he gave false explanation with regard to deceased was having illicit relations with his wife. He thus argued that the judgment impugned passed by the learned trial court is well reasoned order and, therefore, no interference is called for in this appeal so as to alter the finding of guilt from the offence u/s 302 of IPC to Section 304 Part I of IPC and to reduce the sentence.
Learned Public Prosecutor further submitted that it is a heinous offence because the deceased was a disabled person and injury was caused by the accused appellant when he was passing in front of appellant‟s house, from (6 of 10) [CRLA-688/2008] where the accused appellant forcibly took deceased in his courtyard where he inflicted injuries on the person of deceased by a „Gandasi‟ on his head and said fact has been proved by the evidence of trustworthy evidence before the trial court. Therefore, there is no merit in this appeal and hence this appeal may kindly be dismissed.
After hearing the learned counsel for the parties, first of all we have perused the explanation given by the accused appellant in his statements recorded under Section 313 Cr.P.C., which reads as infra:
"ejs s xq: us dgk gS fd dqN Hkh gks tkos rqe >Bw er c kys ukrks eSa lp gh dgxaw kA ejs h iRuh ls Hkjw kjke ds voS/k lca /a k FkAs eSua s viuh vk[a kkas ls mUgas ,l s k n[s k fy;kA euaS s iRuh dks dgk fd ejs s ls ,ls k n[s kk ugha tkrk] rqe pkgks rks eq>s NkMs d + j fdlh vkjS ls "kknh dj yk]s pyh tkvkAs euaS s vius ?kj okykas dks Hkh ckr crkbZ fd vkjS r vxj xyr jkLrs tkrh gS rks tkr ih<h u'V gks tkrh gSA euaS s viuh ekl S h /kMw k+ nos h dks Hkh crk;kA ejs s cVs s dk [kuw feyk ykAs og vkSykn ejs h ugha gSA fdlh vkjS ls lca /a k ls iSnk gbq Z gSA eaS t;iqj efa nj eas lks jgk FkkA rc liuk vk;k fd rqe rqEgkjs ?kj tkvkas ogka vU;k; gks jgk gSA jkr dks gh eaS ?kj igp aq k rks eSua s iRuh dks euk dj j[kk Fkk fd ihgj er tkukA ?kj vk;k rks n[s kk fd iRuh tk pqdh gAS eaS Hk[w kk I;kl rhu ekg rd etnjw h djrk jgkA fQj lljq ky tkdj iRuh dks pyus dks dgk ogka jkr dks :drk rks [kes kjke e=a h dk ih , lkoa jey tkV] nl w jk jkedj.k ekpuk nkus kas jkr dks ejs h vkjS r ds ikl vk;s o mls eq>s [kRe djus ds fy, cky s k eq>s ekyew py x;kA jkedj.k ekpjk us eq>s iVas o cq"kVZ iguus dks fn;As tks igurs gh ejs k fnekx pd x;kA tc Hkh eSa ?kj ls ckgj gkrs k rks Hkjw kjke ejs h vkSjr ls xyr lca /a k cukrkA og rkfa =d Hkh FkkA ejs h tehu dkbs Z nl w jk cp s ugha ld]s bldk izc/a k gkus k pkfg;As ?kVuk ds jkt s eSa rks v"kkd s czkã.k dh nqdku is vk;k] pk; phuh yd s j jkVs h [kkdj eSa dejs eas lk;s k FkkA brus eas Hkjw kjke ejs s ?kj dh Hkkdy ls vk x;k o eq>s dgk fd rw (7 of 10) [CRLA-688/2008] rjs s lkljs x;k ugha D;k\ ejs h vkSjr rc ihgj /ku: s FkhA Hkjw kjke T;knkrj /ku: s viuh ekek dh <k.kh o Mkmjke exs oky dh <k.kh eas jgrk tks ejs h iRuh ls voS/k lca /a k ds dkj.k jgrk FkkA Hkjw kjke }kjk rkfa =d djus ls ejs s ek]a cki] vkjS r nkLs r jkedj.k lc ejs s f[kykQ gks x;As rFkk lHkh e> q s ihVus yx x;As eq>s ekjus dk Iyku cuk fn;k ?kVuk ds jkt s lqcg tYnh og ejs h Hkk[ky eas vk;k] e=a djuk pkgrk FkkA ?kVuk ds le; Hkh e=a dj jgk FkkA euaS s lhls ls mldh "kDy Hkk[ky eas [kMs+ dh n[s khA og dkd a jh Qd as uk pkgrk FkkA eaS mlls ijw k rxa vk pqdk Fkk fQj e> q s dNq /;ku ugha jgk fd og dl S s dke gks x;k eSua as ejuk Hkh pkgk ijrq vkRegR;k iki gS ,l s k xq: us dg j[kk FkkA blfy, vkRegR;k ugha dhA xq:
us dgk vU;k; djus okys ls lgu djus okyk T;knk ikih gkrs k gSA ujd eas tk;xs kA eSa vc Hkh viuh iRuh dks ekQ djnrs kijUrq v cog Hkh ugha eku jgh gS blfy, eq>s lgh c;ku djus iMAs+ eSua s rks dgk Fkk eq>s lca /a k Hkys gh er j[k ij xkoa eas vk tk ugha ekuhA eSua s tks Hkh fd;k Hkjw kjke o vkSjr ls ijw k rxa gkd s j fd;k gSA ejs k U;k; rks mij gkxs kA eSa rks vdy s k jguk pkgrk gAaw Kku dh fdrkc i<us dks pkfg, nks oDr dh jkVs h] vkSj dN q ugha pkfg,A"
After considering above explanation given by the accused appellant, we have perused the statements of author of FIR i.e. PW.1, Jassa Ram, father of the deceased, PW.2 Lalu Ram, PW.3 Nanu Ram, and PW.4 Maina Devi. All these witnesses categorically proved the incident and said that accused appellant inflicted injuries upon the head of the deceased by „Gandasi‟ which resulted into his death. Although a lengthy cross- examination was made on behalf of accused appellant but no question was put to the witnesses with regard to story put forth by the accused that deceased was having illicit relations with his wife.
(8 of 10) [CRLA-688/2008] In view of the fact that no such defence was taken by the accused appellant at the time of cross-examination of the witnesses, the explanation furnished by him in his statement recorded u/s 313 Cr.P.C. with regard to illicit relations of the wife of the accused appellant with the deceased, cannot be accepted so as to disbelieve the prosecution case. In the opinion of this Court, a dishonest plea was taken by the accused appellant in his statement recorded under Section 313 of Cr.P.C. so as to mislead the court that there was reason to cause injury to the deceased in anger or in sudden provocation.
We have perused the statements of Dr. Jagdishchandra Kukna (PW.8), who conducted the
postmortem of the deceased on 20.12.2007 and prepared postmortem report (Ex.P/28). In the postmortem report (Ex.P/28), there is mention of two incised wounds, which reads as under:
" 1- 1 cm incised wound č fracture of skull bone and superior Ramos of mandible 4 cm deep (brain deep) extravasated clotted blood.
2- 12 cm long incised wound 5 cm deep č fracture of skull bone in occipital region ă extravasated."
In the postmortem report (Ex.P/28) following opinion is given by the doctor for the cause of death of deceased who was disabled person.
(9 of 10) [CRLA-688/2008] "In my opinion the death is due to coma caused by head injury."
It is also very important to observe that after registration of the FIR (Ex.P/25) on 20.12.2007, the accused appellant was arrested by the S.H.O., Police Station Sandwa on 20.12.2007 itself at 08.30 PM in the presence of two witnesses, namely, Devkaran and Kundanmal and after his arrest, upon information given by the accused appellant u/s 27 of the Evidence Act, weapon of offence i.e. „Gandasi‟ was recovered from the house of the accused appellant vide recovery memo (Ex.P/13) on 22.12.2007 at 12.40 PM. The said recovery was made in the presence of two witnesses, Lala Ram and Nanu Ram and recovery of „Gandasi‟ the same was kept in sealed covered and marked as Article "E". In the recovery memo, it has further been observed that there is blood upon the „Gandasi‟.
From the place of occurrence, blood stained soil and simple soil along with blood stained shirt of the deceased, Bhura Ram were also taken in possession vide Ex.P/10, Ex.P/11 and Ex.P/12 respectively and all the seized articles were sent for chemical examination to the FSL, Jodhpur.
The FSL report was issued on 31.01.2008 after examination of the blood smeared soil, control soil, „Gandasi‟ and shirt of the deceased, in which it is specifically mentioned that human blood of „A‟ Group was (10 of 10) [CRLA-688/2008] there on these articles. Meaning thereby, the prosecution has proved the recovery of weapon and blood group of „A‟ was found upon the same. Therefore, in our opinion it cannot be said that the prosecution has failed to prove its case beyond reasonable doubt. The learned trial court has relied upon trustworthy evidence. It will be worthwhile to observe that there is complete and specific evidence of motive with regard to suspicion in the mind of accused appellant that the deceased had done some black magic upon accused appellant and his family as well.
In view of above, we are of the opinion that it is a case in which a disabled person was brutally murdered by the accused appellant having intention to kill on suspicion. In the statements recorded u/s 313 Cr.P.C., a dishonest plea was taken by the accused appellant so as to create a false defence.
Accordingly and in view of discussion, this Court is of the opinion that finding of guilt arrived at against the accused appellant by the learned Addl. Sessions Judge, Sujangarh, District Churu vide judgment impugned dated 27th of June, 2008 is, based upon sound appreciation of evidence and statements of accused appellant himself u/s 313 Cr.P.C., therefore, no interference is called for.
Resultantly, the present criminal appeal filed by the accused appellant is hereby dismissed. (GOVERDHAN BARDHAR)J. (GOPAL KRISHAN VYAS)J. DJ/-