Rajasthan High Court - Jaipur
Pema Ram And Anr. vs The State Of Rajasthan on 14 May, 2001
Equivalent citations: 2007(3)WLN255
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT N.N. Mathur, J.
1. This appeal is directed against the judgment dated 28.1.1997 passed by the learned Additional Sessions Judge No. 1, Udaipur, convicting the appellant Prma Ram and Dhula of the offence Under Sections 302 and 302/34 IPC and sentenced to undergo imprisonment for life and to pay\a fine of Rs. 200/- and in default of payment of fine, to further undergo three months' rigorous imprisonment. Both the appellants have also been convicted of the offence Under Section 364 IPC:
2. Briefly stated the prosecution case is that P.W. 1. Khuma Ram lodged an F.I.R. Ex.P.1/Ex.P.16 on 17.3.1995 at 9.15 A.M. at Police Station, Bekariya stating inter alia that after the Holi function, his brother Manna Ram in the night at about 2.30 reached at the house of his uncle P.W. 7 Natha. While he was sleeping, appellants Pema Ram and Dhula armed with a gun and arrow & bow arrived. They asked them to come out of the house. They dragged them to the house of Dhula. Natha somehow succeeded in escaping. It is alleged that Pema fired the gun at Manna Ram on account of which he died on the spot. The reason of murder was old enmity. He also stated that he received information of murder from his cousin brother Roopa Ram in the night itself. On this information, police registered a case for the offence Under Sections 364, 302, 302/34 IPC and proceeded with investigation. P.W. 11 Shivlal, in charge of the Police Station, Bekariya reached on the spot. He prepared the inquest report and sent the dead body for post mortem. The appellants were arrested on 18.3.1995. A gun was recovered in pursuance of the information of the first appellant Pema Ram. After usual investigation, police Laid chargesheet against both the appellants for the offence Under Sections 364, 302, 302/34 and 323 IPC.
3. The appellants denied the charge levelled against them and claimed trial. The prosecution in support of the case, examined 12 witnesses and produced certain documents. The appellants in their statements Under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against them and claimed trial. The trial court relying on the testimony of two eye witnesses namely P.W. 4 Roopa Ram and P.W. 8 Mst. Odi supported by other evidence, found the charges levelled against them proved. Accordingly, the trial court convicted and sentenced them as noticed above.
4. It is contended by Mr. M.L. Garg, learned Counsel for the appellants that the alleged eye witnesses i.e. P.W. 4 Roopa Ram and P.W. 8 Odi are highly interested and partisan witnesses. Learned Counsel has read the entire evidence and pointed out number of discrepancies in the statements of the said witnesses. According to the learned Counsel, both the witnesses have been planted later-on. It is also submitted that the F.I.R. is ante timed. It is further submitted by the learned Counsel that even the prosecution witnesses have admitted that at the time of the incident, second appellant Dhula was standing at his house and he did not participate. It is also submitted that there are no injuries of arrow on the person of deceased. On the other hand, learned Public Prosecutor has supported the judgment of the trial Court.
5. We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions. The defence has not disputed homicidal death of deceased Manna Ram. P.W. 3 Dr. Rakesh Porwal has stated that he performed the autopsy on the dead body of deceased Manna Ram on 17.3.1995 and prepared the post mortem report Ex.P.8. He noticed fire arm ante mortem injuries on the person of deceased as follows:
1. Fire arm wound of 1.5 cm x 1.5 cm x thorasic cavity deep over II intercostal space;
2. Fire arm wound of 1cm x 1cm x S.C. deep over III ICS Front of Rt. side of chest wall in middle part;
3. Fife arm wound of 1cm x 1cm x bone deep over Rt-side of chest wall anteriorly at nipple;
4. Fire arm wound of 1cm x 1cm x S.C. deep over V ICS Rt. side of chest wall anterior medially;
5. Fire arm wound 1cm x 1cm x thorasic cavity deep over Rt. side of chest wall medially;
6. Fire arm wound of 1cm x 1cm x thorasic cavity deep over VI ICS Rt. side of chest in middle part anteriorly;
7. Fire arm wound of 1cm x 1cm x S.C. deep over VI ICS ner sternum Rt. side of chest wall;
8. Fire arm wound of 3.5 cm x 3.5 cm x bone deep over Rt. hand posteriorly at base of index finger;
9. Fire arm wound of 1cm x 1cm x S.C. Deep over RT. hand posteriorly in middle part.
In his opinion, the cause of death was shock due to excessive internal haemorrhage from lung and heart.
6. P.W. 1 Khuma Ram is the real brother of deceased Manna Ram and the eye witness P.W. 8 Odi. He deposed that on 17.3.1995, P.W. 7 Natha came to his house and stated that after the Holi function in the late night, Manna Ram came to his house at 2.30. Both of them went to sleep. After sometime, the appellants visited his house and dragged them. He also stated that on his intervention, Pema Ram struck the butt of gun on his head. He somehow succeeded in escaping. The witness Khuma Ram further stated that after sometime. P.W. 4 Roopa Ram and P.W. 8 Odi arrived and narrated the incident. Roopa Ram told him that he was going to the house to drop P.W. 8 Mst. Odi. On the way infront of house of Dhula, he heard high raised voice of verbal altercation. He alongwith Mst. Odi entered in the 'bada' and witnessed that Pema Ram was standing armed with a gun and Dhula with arrow and bow. Pema Ram asked them to leave the place immediately. Out of fear, they slipped away. They also stated that Pema Ram fired the gun at Manna Ram on account of which he fell on the ground. Thereafter, Pema and Dhula escaped. However, he did not go to the Police Station to lodge the report of the incident during night out of fear. In the morning, he alongwith P.W. 4 Roopa Ram went to the Police Outpost, Devla. They were advised to lodge the report at the Police Station. They got the report Ex.P.1 written from the Sarpanch. In the cross-examination, he admitted that he did not witness the incident. He also admitted that police visited the spot on the day he lodged the F.I.R. and after post mortem, delivered the "dead body to them. He also stated that on the next day, they were called at the Police Station. He also admitted that all the witnesses were taken by Roopa Ram to the Police Station.
7. P.W. 2 Siga Ram deposed that he was called as a motbir when police inspected the site. In the cross-examination, he admitted that the police arrived to enquirers to who had the fired the gun. He also admitted that police enquired from 10 to 15 persons as to who had fired the gun shot. All the villagers pleaded ignorance about the real assailant. He further admitted that the enquiry was made by the police in the presence of P.W. 1 Khuma Ram, P.W. 4 Roopa Ram and P.W. 7 Natha. They also stated that they were not aware as to who fired the gun.
8. P.W. 4 Roopa Ram deposed that after the Holi was put to flames, he proceeded alongwith his sister P.W. 8 Mst. Odi to his house. When they were passing through the back side of the house of appellant Dhula, he heard high raised voice of verbal altercation. He entered in the house of Dhula and witnessed that a quarrel was going on between Pema & Dhula on one side and Manna Ram on the other side. He tried to intervene on which he was asked to run away, else he would face the serious consequences. He also stated that Pema Ram aimed the gun at him and fired, which hit Manna Ram on account of which he fell down. Thereafter, he ran away from the spot. He also stated that the accused persons also fled away from the spot. He narrated the entire incident to Manna Ram's younger brother P.W. 1 Khuma Ram. Because of night, they did not proceed to Police Station immediately. In the morning, first they went to Police Outpost and thereafter the Police Station and lodged the F.I.R. The S.H.O. asked them to take the dead body to Gogunda and get the post mortem conducted. In the cross-examination, he admitted that there was enmity between Khuma Ram and Prem Ram for last 4-5 years. He also admitted that on the same day, police did not visit the spot. On the next day 10 to 15 people had assembled. He also admitted that Dhula was standing at a distance and he had not participated in the incident. He also admitted that Dhula did not utter a single word.
9. P.W. 5 Hamira S/o Bhera, P.W. 6 Hamira S/o Mana, P.W. 9 Man Singh, P.W. 10 Mohan Singh and P.W. 12 Rama are the formal witnesses. P.W. 7 Natha is the uncle of deceased Manna Ram. He deposed that in the night of Holi festival at about 2.30, appellants Pema and Dhula came to his house armed with a gun and arrow & bow and tried to belabour Manna Ram but on his saying that police will harass him, they dragged Manna towards Dhula's house. They warned him not to tell anybody about the incident. They also gave threat to his life. Soon thereafter, he went to the house of Khuma Ram, brother of Manna and apprised him about the incident. He slept at his house. Khuma went to the house of Dhula. After sometime, he heard the sound of gun fire. In the cross- examination, he admitted that there was only one gun fire. He also admitted that in the entire 'Aadivasi' area, there is no gun in any house.
10. P.W. 8 Mst. Odi claims to be an eye witness of the incident. She deposed that while she was on her way to the house alongwith the cousin brother Roopa Ram, she heard the high raised voice from the house of her uncle i.e. Dhula. She alongwith Roopa Ram went inside the courtyard of the house of Dhula. It was moonlight. She witnessed that appellant Pema fired the gun shot at manna. Appellant Pema asked to run away otherwise they will also face the same consequences. Thereafter, she alongwith Roopa went to the house of Khuma and narrated the incident. In the cross-examination, she admitted that Dhula was standing at a distance and he did not participate in the incident. Initially, she avoided to admit that deceased was his real brother but on further cross-examination, she came round and admitted that deceased Manna Ram was his real brother.
11. P.W. 11 Shivlal, S.H.O., Police Station, Bekariya is the Investigating Officer. He has given the details of investigation.
12. It is argued by Mr. M.L. Garg, learned Counsel for the appellants, that till 18th March, the police was not aware of the name of person, who fired the gun on deceased Manna Ram. The entire case rests on the testimony of the two alleged eye witnesses viz; P.W. 4 Roopa Ram and P.W. 8 Odi, as the other evidence of recovery is of no significance for the reason that the Ballistic expert's report has not been placed on record by the prosecution. It is significant to notice that all the witnesses have tried to avoid to disclose that they are closely related to the deceased. The family pedigree is given as follows:
Binda
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| | |
Sawa Vira Natha
| (PW 7)
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| | | |
Manna Khuma Odi Rupa
(deceased) (PW1) (PW 8) (PW 4)
13. The pedigree shows that P.W. 1 Khuma and P.W. 8 Odi are the real brother and sister of deceased Manna. P.W. 7 Natha is the real uncle and P.W. 4 Roopa is the real cousin of deceased Manna, Still, P.W. 1 Khuma Ram pleaded ignorance that Vira is the son of Binda. P.W. 8 Mst. Odi stated that deceased Manna was his brother in distant relation. On further cross-examination, she admitted her father's name Sawa. Thereafter, she admitted deceased Manna Ram's father as Sawa. Thereafter, she comes round and says that deceased Manna Ram was his real brother. She also admitted that P.W. 4 Roopa Ram is the son of his real uncle Vira. The part of the statement of this witness is extracted as follows:
eUuk esjs dkdk ckck esa HkkbZ yxrk gSA esjs firk dk uke lok gS] eUukjke ds firk dk uke Hkh lok gS] eUuk esjs lxk HkkbZ yxrk gS] mij tks eSaus eUuk ds dkdk ckck ds HkkbZ gksus dh ckr xyr fy[kokbZ gS cfYd eUuk esjs lxk HkkbZ yxrk gSA
14. P.W. 4 Roopa Ram also initially denied, if he has any relation with P.W. 1 Khuma Ram. He has stated that Khuma Ram is a distant relative. Later, on further cross-examination, he comes round and admits that Khuma Ram is his real cousin brother, being son of his real uncle. Thus, the alleged eye witnesses are undoubtedly deeply interested in the prosecution but that by itself, cannot be a ground to discredit their testimony. It, however, certainly puts this court on its guard to scrutinise their evidence more carefully keeping in view that they have not hesitated in telling lie on the admitted facts about their close relations. P.W. 4 Roopa Ram has admitted that Pema Ram at the first instance aimed the gun at him but on his slightly moving, the fire hit Manna Ram. P.W. 8 Mst. Odi does not say so. She has stated that when she entered in the compound of the house of Dhula Ram, Pema fired at Manna. If the admission of P.W. 4 Roopa Ram in the cross-examination is true, the entire prosecution case collapses. In case the appellant Pema Ram aimed at P.W. 4 Roopa Ram, there was no reason for him to drag deceased Manna Ram to the house of Dhula Ram. It is admitted by the investigating officer that distance between the house of Dhula and P.W. 7 Natha is about 600 ft. It is also admitted that house of P.W. 7 Natha is downhill. If it is so, it is difficult to comprehend that the appellant will take Manna Ram uphill upto 600 ft. to shoot him.
15. P.W. 2 Siga Ram has admitted that on the next day of the incident, police collected 10 to 15 persons of the village and enquired as to who fired the gun shot at Manna Ram. He also admitted that at the time of the said enquiry, P.W. 1 Khuma Ram, P.W. 4 Roopa Ram and P.W. 7 Natha were also present. It has also been admitted by the prosecution witnesses that all the witnesses were taken by Roopa Ram to the Police Station. Thus, the statements have not been recorded on the spot. This also creates a doubt, if the F.I.R. was lodged on 17.3.1995 at 9.15 A.M. The report Ex. P.I contains the names of the accused persons as well as all the eye witnesses. If it was so, there was no question of enquiry on this aspect on the next day i.e. on 18th March.
16. There is yet another factor, which is very relevant. The prosecution led no evidence to show that when did the copy of the F.I.R., which was required to be despatched under the statutory provisions of Section 154 read with Section 157 Cr PC promptly to the Magistrate, was actually despatched. There is an endorsement in the F.I.R. Ex. P. 16 of the Magistrate that it was received on 22.3.1995 at 10.45 A.M. The F.I.R. in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon the prompt lodging of the F.I.R. is to obtain the earliest information regarding the circumstances in which the crime was committed including the names of the actual culprits and part played by them, the weapons, if any, used as also the names of the witnesses, if any. It is well established that the delay is lodging the F.I.R. often results in embellshment, which is a creature of an after thought. It is held by the Apex Court in catena of cases that on account of delay, the F.I.R. not only gets bereft of the advantage of spontaneity but danger also creeps-in of the introduction of a common version or exaggerated story. In the instant case, it clearly appears that the F.I.R. is ante timed and ante dated particularly in view of the admission of P.W. 2 Siga Ram, the relevant portion of his statement in extracted as follows:
;g lgh gS fd iqfyl okys ekSds ij tkap djus vk;s fd cUnwd fdlus pykbZ FkhA ;g lgh gS fd iqfyl us ogka xkao ds djhcu 10&15 yksxksa dks bdV~Bk fd;k Fkk o lHkh dks iwNk fd xksyh fdlus pykbZ gS rks xkao okys yksxksa us dgk fd vHkh rd cUnwd pykus okys dk irk ugha pyk gSA ml oDr [kqekjke] :ikjke firk chjk] ukFkk firk cnk Hkh ogha ekStwn Fks] mUgksaus Hkh ;gh dgk fd vHkh rd xksyh pykus okys dk irk ugha pyk gSA
17. It appears that it was a blind murder and none of the eye witnesses were actually present at the scene. The ante timing of the F.I.R. was obviously made to introduce the eye witnesses to support the prosecution case. Our independent analysis of the evidence on record, coupled with infirmities, which we have noticed above, has created an impression in our mind that the prosecution has not been able to bring home the guilt of the appellants beyond a reasonable doubt. As regards the second appellant Dhula, there is no evidence worth the name. It has been admitted by the eye witnesses that he was standing at a distance. What to talk of participation, he did not utter even a single word. As a result of our above discussion, We hold that the case against both the appellants has not been proved beyond a reasonable doubt and they are entitled to benefit of doubt.
18. Consequently, this appeal is allowed. The conviction and sentence recorded by the trial court is set aside. They are acquitted of the offence charged. The appellant-Pema shall be set at liberty forthwith, if not required in any other case. Bail bonds of Dhula stands discharged.