Rajasthan High Court - Jaipur
Sawai Singh And Anr. vs State Of Rajasthan on 12 May, 1994
Equivalent citations: 1994(1)WLN614
JUDGMENT Rajendra Saxena, J.
1. This appeal has been preferred against the judgment dated 28.9.85 passed by the learned Sessions Judge, Jodhpur, whereby he convicted appellant Sawai Singh for the offence Under Section 302 IPC and sentenced him imprisonment for life and imposed a fine of Rs. 1000/- and in default to further undergo one year's R.I. and appellant Pratap Singh Under Section 302/34 IPC and sentenced him to life imprisonment and a fine of Rs. 500/- and in default to further undergo R.I. for six months.
2. Briefly the prosecution case is that on 16.6.83 at about 5.45 PM, PW 1 Suja Ram Darji was working on his shop. He heard cries to the effect, ^^vkneh ekjs js vkneh ekjs js^^ coming from the side of Ganesh temple. Thereupon, he came running and found that deceased Deepa Ram Darji, who was working on his shop, situated in the Sadar bazar of Pokran, was being dragged away by appellant Sawai Singh. Appellant Sawai Singh was accompanied with two more persons, which were later on identified as appellant Pratap Singh & absconding accused Narpat Singh. Pratap Singh had a lathi, while Narpat Singh carried a hockey stick. Appellant Sawai Singh pulled down Deepa Ram and felled him on the road. Appellant Sawai Singh dealt many blows by his sword on Deepa Ram and chopped off his head. Appellant Pratap and Narpat Singh, who had come with the appellant Sawai Singh, positioned themselves on his both sides and did not permit any person to come near them. Thereafter, appellant Sawai Singh caught hold of the severed head of deceased Deepa Ram from his hair and all the there assailants hastily proceeded towards Kumharon Ki Pol. When they reached near. Kumharaon Ki Pol, they alighted in a Jonga Jeep bearing No. RSN 4811 which was being driven by co-accused Rajendra Singh and went away. It is alleged that the said incident was witnessed by many persons in the market including PW 14 Bhagwanji Pan Wala, PW 12 Loonji and one Mohammedan lady PW 4 Smt. Jallu. It is alleged that PW 4 Smt. Jallu intervened to rescue Deepa Ram, but one of the companions of appellant Sawai Singh dealt a lathi blow on her. It is the case of the prosecution that the assailants, while making good their escape left the sheath of that sword (Article 6) and a pair of shoes on the place of occurrence. It is further the case of the prosecution that the motive for the murder was that the deceased Deepa and his cousin PW 1 Suja Ram had inflicted injuries and cut the nose of appellant Sawai Singh's father Ran Singh for which the police, after investigation, had filed a chargesheet against the deceased and Suja Ram and after trial, the deceased was found guilty & sentenced by the court. Hence, the appellant Sawai Singh avenged that act of the deceased.
3. PW1 Suja Ram immediately went to Police station, Pokaran, where he submitted written report Ex.P. 1 on the same day at 6 PM before PW 22 Lal Singh, SHO, who drew the formal FIR Ex.P. 32 and registered a case under Section 302 IPC. Lal Singh informed the S.P., Jaisalmer on phone about the said incident and rushed to the place of occurrence. There, he found the beheaded body or deceased Deepa Ram and trial of blood stains leading towards Kumharon Ki Pol. The persons, who had assembled here, informed Lal Singh that the assailants had made good their escape in a Jonga Jeep. Lal Singh, therefore, directed Head Constable Sabai Singh to make necessary arrangements for protection of the place of occurrence and told him that as he was going in hot pursuit of the assailants and if there was any delay in his return then some other Investigating Officer should be called. PW 22 Lal Singh S.H.O. alongwith police party went in search of assailants, tracking the Jonga tyre marks in the police jeep to various villages namely Sankara, That, Bhiyad, Undu, Phalsund etc. It is the case of the prosecution that on 17.6.83 at about 1.45 A.M., Lal Singh found a Jonga Jeep bearing No. RSN 4811 lying concealed in bushes at a distance of about one kilometer away from village Dantal. He seized that jeep vide seizure memo Ex.P. 25.
4. It is further the case of the prosecution that on the wireless message sent by the Dy. S.P., Jaisalmer, PW 21 Jai Singh, S.I. Police Station Nachna reached Police Station, Pokran on 17.6.83 at 2.30 A.M. He was directed to conduct the investigation in this case. Thereupon, he rushed to he place of the occurrence, where he found the beheaded body of the deceased lying on the road in the market in front of Mohanlal Bissa's godown. On the platform outside the said godown, deceased Deepa Rani's sewing machine and stitched garments were lying. On the said platform, a pair, of shoes (Article 4) was also found lying. He also found a blood stained sheath (Article 6), a pair of shoes and a blood stained lathi (Article 10) alleged to have been left by the assailants, lying near the dead boy. An empty cloth bag (Article 9) and a packet containing lady garments were also found lying there. Pw 21 Jai Singh also noticed a trial of blood stains on the southern side of the dead body upto a distance of about 20 feet on the road. He inspect the site, prepared site plan Ex.P. 31 and is memo Ex.P.2. He held the inquest of the dead boy vide inquest memo Ex.P. 7, seized and sealed the blood stained soil and the control sample, blood stained hair of he deceased, blood stained sheath and the blood stained lathi vide seizure memo Ex.P. 28, empty cloth bag, packet containing garments, pair of shoes of the deceased and another pair of shoes left by the assailants vide seizure memo Ex.P. 29. He also sent the beheaded body of deceased to the Medical Officer, Primary Health Center, Pokaran.
5. Dr. Gajesh Bhargava conducted the post mortem examination of the dead body at 8 AM on 17.6.83. He found that the neck of decapitated body of Deepa Ram was totally cut. The decapitation appeared to have been done in two planes. Anteriorly at the level of C7 vertebra, all large vessels, trachea, oesophagus and soft tissues were cut in one plane. The C7 verterba was also cut half way. Posteriorly, skin, muscles, vertebral column and trachea were cut at C 6 level. Soft tissues and skin were seen coming out at different planes by ragged incisions. In all five cut ends of skin edges were found. All soft tissues were seen retracted. The vertebral column was chopped at C 6 level. The spinal cord was retracted inside, All vessels were cut and seen protruding. A piece of trachea 3cm in size, was seen hanging just attached with distal part at the level of C7. On compression, the trachea was found full with blood. The wounds were wet with serum. He noticed an incised wound 20 cm X 6 cm X thoracic cage deep at the level of fourth rib and sternum and costal cartilage at the level of third rib right side. The underlying right lung tissue was found cut. Another incised wound measuring 18 X 10cm was on the right shoulder. The underlying muscles, head of humerus, acronial end of clavical and scapula were found chopped off. The chopped pieces of bone attached with muscle tissue were cut. The hired incidsed wound 8cm X 3cm X bone deep was on the right shoulder, here was an incised wound 8 cm X 3 cm X bone deep on the right forearm with underlying feature of radius. All muscles and vessels were cut. There was an incised wound 15cm X 10cm starting from right arm to the middle of the forearm cutting all muscles vertically alongwith lamellar, chopping off head of radius and upper on third of radius laterally. Another incised wound was on the left forearm 6cm long transverse into bone deep cutting the ulna. There was an incised wound with multiple ragged edges starting from junction of upper one third and middle one third left forearm posteriorly direct downwards, forwards & medially cutting all underlying muscles and ulna vertically down upto the lower end. There medial carpols were seen cut vertically. The palm was cut vertically; metacarpals of ring & little finger were cut vertically. He also found incised wound 2.5cm X 2cm on left thumb cutting the nail bone; an incised wound 3cm X 5cm posteriorly on the left index finger in proximal phalanx and yet another incised wound 15cm X 7 cm X scapula deep on the left shoulder.
6. Dr. Bhargava opined that the cause of death was due to massive hemorrhage and suffocation as a result of decapitation and aforesaid multiple injuries as per post mortem report Ex.P. 8.
7. After the post mortem examination, Jai Singh seized and sealed the blood stained shirt (Article 2), blood stained dhoti (Article 1) and blood stained 'angochha' (towel)_ (Article 3), which were taken out from the dead body of deceased vide seizure memo Ex.P. 30.
8. PW 22 Lal Singh returned to Police Station, Pokaran on 17.6.83 at about 10 A.M. and thereafter the investigation in the ease was conducted by him. he recorded the statements of various witnesses. Appellant Sawai Singh was arrested on 21.6.83 vide arrest memo Ex.P. 17. On the same day, he made a disclosure statement Ex.P. 34 and in pursuance thereof got recovered blood stained sword (Article 14), his blood stained pant (Article 15) and blood stained shirt (Article 16), which were lying concealed under a 'ker' bush from the bed of Modna river near village Tejmalta. All those articles were seized and sealed in various packets vide recovery memo Ex. P. 18.
9. it is alleged that on 21.6.83, PW 7 Jagdish Chandra, SHO, P.S., Sankara was informed by a villager that a decomposed head of a male person alongwith blood stained dhoti were lying in the field of one Nakhat Singh near Village Betina. since Jagdish Chandra had the information that one person was beheaded ill; the main market of Pokran a few days ago, he therefore immediately informed the SHO, P.S. Pokran. Thereupon PW 15 Joga Ram A.S.I. alongwith informant PW 1 Surja Ram went to Police Station, Sankhara. From there, they accompanied PW 7 Jagdish Chandra and went to village Betina. There, in the field of Nakhat Singh, one skull of a male person alongwith skin, hair and two blood stained dhoties were recovered, which were seized and sealed vide seizure memo Ex.P. 13. The blood stained soil and the control sample from the place of recovery were also sealed in different packets. PW 1 Suja Ram identified the said head as that of deceased Deepa Ram.
10. Appellant Pratap Singh was arrested on 13.7.83. He was sent to the judicial lock up on 18.7.83. On 25.7.83, PW 2 M.L. Gaur Judicial Magistrate Pokran conducted his identification parade, wherein PW 1 Surja Ram correctly identified him vide identification parade memo Ex.P. 5.
11. During investigation, it transpired that at the time of the incident appellant Pratap and one narpat; who absconded and could not be arrested, had accompanied appellant Sawai Sigh armed with lathi & hockey; that the assailants had come in a Jonga Jeep and also made good their escape in the said Jonga Jeep, which belonged to co-accused Rajendra Singh who had driven the said vehicle. After investigation, the police submitted a chargesheet against the present appellants, co-accused Rajendra Singh and absconding accused Narpat Singh in the court of MJM, Pokaran, who committed the case to the learned Sessions Judge.
12. Accused Sawai Singh was charged with the offence Under Section 302, 302/34 and 120B IPC, while appellant Pratap Singh and co accused Rajendra Singh were charged with the offences u/.ss. 302/34 and 120-B IPC. The appellants pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as twenty three witnesses. Appellant Sawai Singh in his plea recorded Under Section 313 Cr.PC specifically admitted that the deceased Deepa Ram, PW 1 Surja Ram and Khushala Ram had chopped off the nose of his father Ran Singh and for that, he had animosity with them and that after that incident, deceased Deepa Ram and Suja Ram had shifted to Pokaran, where they started residing and carried-on their tailoring business. He also claimed that PW 1 Surja Ram knew him as well as appellant Pratap Singh and that Pw 20 Taju Khan did not know him. He asserted that recover pair of shoes from the place of occurrence did not belong to him. He admitted that he was arrested by the police but claimed that at the time of his arrest, he was not bare footed. He denied to have given any information as also the recovery of the sword (Article 14) and the blood stained clothes. He, however, admitted his signatures on information memo Ex.P. 34 and recovery memo Ex.P. 18 but claimed that those were procured by the police under duress. He asserted that the prosecution witnesses deposed against him due to animosity.; Appellant Pratap Singh has stated that PW 1 Surja Ram knew him previously and that police had also shown him to the prosecution witnesses. He admitted that he is the nephew of Ran Singh, father of appellant Sawai Singh. He asserted that PW 20 Taju Khan did not know him, but admitted that Pw 1 Suja had identified him during the test parade. He urged that since he is the relative of appellant Sawai Singh, the prosecution witnesses have deposed against him.
13. In defence, appellant examined DW 1 Gopal Singh. After trial, he learned Sessions Judge acquitted co-accused Rajendra Singh. However, he could that appellants guilty and sentenced them in the manner detailed ad ultra. Hence this appeal.
14. We have heard Mr. NN Mathur, the. learned Senior Counsel for the appellants and Mr. S.K. Vyas learned Public Prosecutor at length and meticulously gone through the record of the lower court.
15. Mr. NN Mathur has strenuously contended that the learned Sessions Judge was too much swayed by the tender feeling of the ghastly murder of the deceased, which was so inherent in the situation and that this approach has vitiated his objectivity of the judgment. According to him, the learned trial Judge has analysed the evidence in this case in a cursory & mechanical manner and conveniently skipped over that part of the evidence, which supported the defence case. According, to him, PW 1 Surja Ram is a highly interested witness, because he was also tried for the offence of cutting the nose of appellant Sawai Singh's father Ran Singh; that he was also the cousin of the deceased and that his statement suffers from material contradictions, inconsistencies and infirmities and, as such, he is a wholly unreliable witness. Mr. Mathur has submitted that PW 20 Taju Khan is a mere chance witness. He is also a nighly interested witness, because he got deceased Deep Ram's land transferred in favour of his wife through a registered sale deed Ex.D. 1. He has further submitted that the learned Sessions Judge has committed a grave error in relying on the testimony of Taju Khan. Mr. Mathur has urged that in this case, the FIR is a fabricated and post investigation document, because according to the prosecution version, it was immediately lodged at the police station within fifteen minutes of the alleged crime still then it is neatly written and contains detailed version of the incident, which was not possible. Pw1 Suja Ram is an illiterate person. He has stated that he had not given the number of Jonga Jeep in his report, but still then the number of Jonga Jeep finds mention in written report Ex.P.1. The FIR Ex.P. 32 reached the Magistrate, Pokaran on 18.6.83 at 11 A.M. and this inordinate delay in despatch of the FIR has not been explained, which firmly establishes that the FIR was drawn later on and that the same is a fabricated and post investigation document, which creates strong suspicion against the prosecution case. Mr. Mathur's another argument is that the alleged recovery of sword (Article 14) and blood stained pant (Article 15) and shirt (Article 16) was made from an open place near the bed of a river which was accessible to one and sundry and that there is no convincing evidence that those aritcles were sealed by the Investigating Officer on the spot. Therefore, the said recovery does not implicate the appellant Sawai Singh with the crime. As regards appellant Pratap Singh, Mr. Mathur has urged that his name does not find mention in the FIR; that he was arrested on 15.7.83 but his identification parade was conducted as late as on 25.7.83 and that this delay is fatal to the prosecution case. Besides this, there is no convincing evidence that Pratap Singh was kept 'baparda'. Mr. Mathur has lastly argued that the alleged incident took place in the main market of Pokaran, which was witnessed by numberous persons, but besides Suja Ram and Kheta Ram, all other witnesses, whose shops are situated near the place of the incident have not supported the proseuction version and identified the appellants. In such circumstances, the learned Sessions Judge has misread the evidence, ignored material facts and committed a serious error in holding appellants guilty.
16. On the other hand, Mr. SK Vyas learned P.P. has strenuously argued that PW 1 Surja Ram and PW 20 Taju Khan are reliable winesses, who have withstood the test of cross examination valiantly. According to him, there is no material or significant inconsistency or infirmity in their sworn testimony. The prosecution has examined all the available neighbours and other persons, who were present at the time of the alleged occurrence and that they have substantially proved the incident. However, due to fear of the appellants, they did not have the courage to name them before the Investigating Officer as also during trial. Mr. Vyas has, therefore, submitted that the learned trial Judge has not committed any illegality in placing reliance on the statements of Suja Ram and Taju Khan, who have proved the prosecution case beyond reasonable doubt. He has asserted that in this case, the FIR was promptly lodged and there was no question of making any embellishment specially when the initial investigation was conducted by PW 21 Jai Singh of Police Station Nachna, who was directed by the Dy. S.P., Jaisalmer to go to Police Station, Pokaran, in absence of PW 22 Lal Singh, SHO, P.S., Pokaran, who had gone in hot pursuit of the assailants. Mr. Vyas has further asserted that the recovery of the sword ,and the blood stained pant and shirt at. the instance of appellant Swai Singh, is not at all doubtful, that those recovered articles were sealed on the spot and that their seals remained intact till those articles were received in the office of the Director, State FSL, Rajasthan, Jaipur. Thus, the recovery of blood stained sword and blood stained pant and shirt incriminates appellant Sawai Singh with the crime. He has submitted that there was no delay in getting the test parade conducted in respect of appellant Pratap Singh and that whatever delay was occasioned has been satisfactorily explained by the prosecution. He has also reiterated the reasonings given by the learned trial Judge and supported the impugned judgment.
17. We have given our most anxious and careful consideration to the rival submissions made before us. The homicidal death of Deepa Ram stands firmly established by the statement of PW 3 Dr. Ganesh Bhargava, who has proved the post mortem report Ex.P. 8. He has deposed that the death of Deepa Ram was caused due to massive haemorrhage and suffocation as a result of decapitation and multiple injuries inflicted on his body. During trial, the learned Counsel for the appellants had also admitted the post mortem report Ex.P. 8 Under Section 294 Cr. PC PW 7 Jagdish Chandra, SHO, P.S., Sankhara has deposed that he had recovered a severed head of a male person, which was tied in a blood stained 'dhoti' in the presence of Pw 1 Suja Ram and PW 15 Jodha Ram A.S.I, vide recovery memo Ex.P. 13. Suja Ram identified that head as that of deceased Deepa Ram. Thus, the homicidal death of deceased Deepa Ram has been firmly established.
18. The alleged incident look place at about 5.45 P.M. on 16.6.83 in the Sadar Bazar of Pokaran and was witnesses by number of persons. The prosecution has examined PW 1 Suja Ram, Pw 4 Smt. Jallu, PW 5 Anna Raj.PW 6 Ram Chandra, PW 11 Kheta Ram, PW 12 Loonkaran. PW 13 Ramu Ram and PW 14 Narsingh Das. PW 1 Surja Ram and PW 20 Taju Khan have fully supported the prosecution case. However, aforementioned other witnesses have stated that Deepa Ram was beheaded by a persons, who inflicted sword blows to the former and that two other persons had also accompanied him. However, they have neither identified the appellants nor named those assailants. Therefore, those witnesses have been declared hostile.
19. PW 1 Suja Ram is the cousin of the deceased. He is also the informant in this case. His shop is situated just ten-twelve paces away from the shop of the deceased situated in the Sadar Bazar of Pokaran. Surja Ram has stated that about twenty years prior to this incident, he and his cousin brother deceased Deepa Ram used to reside in Sardar Singh's dhani; that deceased Deepa Ram had chopped off the nose of Ran Singh, the father of appellant Sawai Singh and for that, the police filed a challan against them and after trial, deceased Deepa Ram and Khushala Ram were convicted while he was acquitted. He has deposed that due to that incident, appellant's family bore enmity with them and, therefore they shifted from Sardar Singh's dhani and started living in Pokaran. It may be mentioned here that appellant Sawai Singh in his plea recorded Under Section 313 Cr. PC has clearly admitted these facts and stated that due to that incident, he bore animosity with the deceased. It may also be mentioned here that in western Rajasthan, cutting the nose of a person is regarded as a great insult and it is not uncommon that people take vengeance for such an insult for generations. Hence, in this case, the motive for the crime is well proved.
20. PW 1 Surja Ram has stated that on the ill fated day, he heard the cries raise by Deepa Ram to the effect ^^vkneh ekjs js vkneh ekjs js^^; that thereupon he rushed to the shop of the deceased, where he saw appellant Sawai Singh inflicting sword blows to Deepa Ram. At that time, two other persons were also there with appellant Sawai Singh; one of them had a lathi while the other was armed with a hockey. He has further deposed that he did not know those two persons previously. However, he knew appellant Sawai Singh. He has stated that Deepa Ram had fallen down on the street below his shop and that appellant Sawai Singh dealt several blows by the sword and chopped off the head of Deepa Ram in his presence. He has deposed that one of those assailants was appellant Pratap Singh, to whom he had identified during the identification parade before the Magistrate. He has stated that at that time, many persons including Loonkaran tea vender, Bhagwanji and Anna Raj had assembled there and witnessed the said ocurrence. He has further stated that thereafter appellant Sawai Singh lifted the severed head of deceased Deepa Ram in his hand and hastily went away with his sword alongwith appellant Pratap Singh and the other assailant, whom he could not identify, towards Kumharon Ki Pol. The beheaded body of Deepa Ram was bleeding. A blood stained sheath of the sword and a pair of shoes (Article 5) belonging to appellant Swai Singh and pool of blood were lying near the dead . body. Thereafter, he went to police station and submitted report Ex.P. 1 to PW 22 Lal Singh, SHO. In his cross examination, he has stated that in between the shop of the deceased and his shop, there were four-five shops; that the shop of deceased was situated in front of the road; that he reached the place of occurrence after hearing the alarm raised by deceased, and that he had seen appellant Sawai Singh inflicting sword blows to the deceased from a distance of 5-7 paces. He has stated that in his presence, appellant Sawai Singh had dealt three-four sword blows to he deceased. He has deposed that by the sword blows dealt by the appellant Sawai Singh, the head of Deepa Ram was completely severed and that after beheading the deceased, appellants Sawai Singh, Pratap Singh and the other assailant had run away towards Kumharon Ki Pol and that at that time, appellant Sawai Singh was holding the chopped off head of Deepa Ram in his band. He has specifically stated that he had given the detailed account of the incident to the police immediately after the occurrence. He has further stated that while he was going to police station, in the way some kids had informed him that the assailants had come in a Jonga Jeep, which was parked near Kumharon Ki Pol. He refuted the suggestion that he did not see the alleged occurrence and that when he reached the place of occurrence, he had found the deceased Deepa Ram having multiple injuries. He emphatically deposed that he had himself seen the said incident. He has also identified the blood stained 'dhoti. (Article 1), blood stained shirt (Article 2), blood stained 'angochha' (Article 3) and pair of shores belonging to the deceased and a pair of shoes (Article 5), blood stained sheath (Article 6), 'odhna' (Article 7), printed cloth (Aricle 8) and an empty bag (Article 9) and blood stained lathi (Article 10), which were found lying near the dead body of the deceased and were subsequently seized and sealed by the Investigating Officer. He has further deposed that pair of shoes (Article 5) belonged to appellant Sawai Singh and that after beheading the deceased, the former had fled away from the place of the occurrence bare footed. He has admitted that he knew appellant Sawai Singh prior to the incident and used to see him in the market, though he did not have any conversation with him due to animosity. He has stated that when he reached the place of occurrence, PW 5 Anna Raj was standing on the 'chabutara' of his shop, which is situated at about 4-5 paces from the place of the incident, while PW 12 Loon Karan and PW 14 Bhagwanji were standing at a distance of 4-5 paces from the shop of deceased. PW 1 Surja Ram has been cross examined at lengh. In our considered opinion, his testimony has remained unshaken and unshattered. We also do not find any material inconsistency or improvement in his statement. He is the cousin of deceased Deepa Ram. Simply because he had also faced the trial of the offence of cutting the nose of appellant Sawai Singh's father Ran Singh, it cannot be held that his testimony is tainted and not worthy of credence. The presence of PW 1 Suja Ram on the scene of the occurrence is quite natural and has been firmly established. The learned trial Judge has closely scanned his evidence and committed no illegality in relying on his sworn testimony.
21. PW 20 Taju Khan has deposed that one of his fields is situated near Sardar Singh's 'dhani', where appellant Sawai Singh resides and thus he knows him since long. He has further deposed that appellant Pratap Singh and absconding accused Narpat Singh are relative of Sawai Singh; that they often used to come to the house of Sawai Singh and that, as such, he also knew them previously. He has further deposed that on the ill fated day at about 5.30 or 6 P.M., he had gone to Sadar Bazar of Pokaran; that he was purchasing article from the shop of PW 6 Ram Chandra and that at that time, appellant Sawai Singh with a sword in his hand, appellant Pratap Singh armed with a lathi and accused Narpat Singh having a hockey had come there. He has deposed that appellant Sawai Singh went near the 'chabutari' of Deepa Ram, where the latter was operating his sewing machine and that at that time, appellant Pratap Singh was standing on his northern side, while accused Narpat Singh was standing towards the southern side. He has further deposed that appellant Sawai Singh pulled down Deepa Ram and started inflicting sword blows to him; that thereupon the deceased cried ^^ekjs js ekjs js^^ and that thereafter the appellant Sawai Singh severed Deepa Ram's head by the sword. He has stated that thereafter appellant Sawai Singh lifted the head of deceased by catching hold of his hair; that thereafter all the three assailants went away towards Kumharon Ki Pol and that at that time, appellant Sawai Singh was bare footed. He has deposed that blood oozed out from the severed head leaving trails of blood on the road leading towards Kumharon Ki Pol. He has stated that neither he nor any other person dared to rescue the deceased, however, one lady putting on veil had come near the assailants. He has stated that shop of Ram Chandra was at a distance of about ten twelve paces from the place of occurrence; and that after the assailants had gone away, he had gone near the place of occurrence and found one sheath, a pair of shoes, a bag and some garments lying near the dead body of Deepa Ram on the road. The statement of this witness was recorded on 19.3.85 in two sessions. In the next session, PW 20 Taju Khan complained the learned trial Judge that during the lunch break, one boy had come inside the Court room and threatened him with he dire consequences. This shows as to how the accused persons had terrorised the witnesses. In his cross examination, he has categorically stated that his agricultural lands are situated at two places. His one field is near Pokran, while his other agricultural land is situated near Sardar Singh's dhani and that he resides at both the places. He has admitted that some fifteen- twenty years ago, a case was filed against him for killing a bullock but he was acquitted. He has denied the suggestion that after the said case, he had left residing in Sardar Singh's dhani. He has also denied the suggestion that case was launched against him by persons of Rajput community, but was filed by one brahmin. He has also refuted the suggestion that he is the local guardian of the widow of the deceased and that he has purchased agricultural land from the deceased and has still to pay an amount of Rs. Seven thousand against the price of that land. He has also categorically denied the suggestion that deceased's brother Khushala Ram has assured him that in case he deposed in favour of the prosecution, the unpaid amount of Rs. 7000/- will not be realised from him. He has deposed that he has seen the appellant Pratap Singh at the house of appellant Sawai Singh many a times and that for the last time, he has been him about two- three years ago. He has deposed that he had purchased articles from the shop of Ram Chandra on many occassions. He has further deposed that the assailants had seen him at the time of the incident but neither they had wished him nor he greeted them. He has stated that when he heard the alarm raised by the deceased ^^ekjs js ekjs js^^ then his attention was diverted towards him and that during the incident he kept standing near the shop of Ram Chandra. He has deposed that at hat time, Anna Raj was standing on his shop while Suja Ram was standing outside the shop and that he had no conversation with Ram Chandra about the alleged incident. He has stated that thereafter, he went to his 'dhani' and that in the way, nobody met him and that his statement was recorded by the police after two three days of the incident. He had come to his house. He has deposed that appellant Sawai Singh had dealt five seven blows by sword to he deceased, who had fallen down after receiving one or two blows. Taju Khan has been cross-examined at length, but he has valiantly withstood the test of cross examination. The learned trial Judge has discussed, analysed and evaluated the testimony of this witness and rightly held that he is a reliable witness.
22. Mr. N.N. Mathur has submitted that the name of Taju Khan does not appear in the FIR, that he is a chance witness; that he also bore the enmity with the appellants and that in such circumstances, his statement does not inspire confidence. He has relied on the case of Bahal Singh v. State of Haryana , wherein it has been observed that if by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness and that if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused, then his being a chance witness is viewed with suspicion. Their lordships have further held that such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny. We have respectfully followed this principle of law while, assessing the testimony of PW 20 Taju Khan.
23. The appellants in their defence have simply filed a true copy of the registered sale deed dt. 28.12.83 alleged to have been executed by Smt. Indra widow of Deepa Ram in favour of Smt. Hafizo w/o Taju Khan Musalman, whereby the former has sold 75 bighas of barani land to he latter for a consideration of Rs. 50000/-. However, the sale deed Ex. D. 1 has not been got proved by the appellants. On the other hand, a bare perusal of saledeed Ex.D.1 reveals hat it has been specifically mentioned therein that vendor had received the full payment of Rs. 50000/- while handing over the actual physical position of the land to vendee. This fact was admitted by the vendor before the Sub Registrar at the time of registration of the sale deed. In such circumstances, the suggestion that Rs. 7000/- were due and that Khushala Ram, brother of deceased, had promised Taju Khan to treat the said amount as paid, in case he deposed in favour of the prosecution, appears to be a mere figment of imagination. Such a suggestion also runs counter to the contents of the sale deed Ex.D.1. We have closely scrutinised the statement of Taju Khan. In our considered opinion, he has successfully withstood the test of searching cross examination. We also do not find any material discrepancy, contradiction or significant infirmity in the statements of PW1 Surja Ram & PW 20 Taju Khan, who have fully supported the prosecution case.
24. Mr. Mathur has also placed reliance on the case of Pyaralal and Ors. v. State of Rajasthan 1987 Cr. LR (Raj.) 676. In that case, the statement of the prosecution witness was contradictory and untrustworthy. Independent witnesses though present at the place of occurrence were not examined. Injuries on the body of accused were also not explained by the prosecution. There was inordinate delay in recording the statement of the material witnesses by the I.O. In such circumstances, the accused persons were given the benefit of reasonable doubt. Admittedly, such are not the facts of the case in hand. Therefore, Pyarelal's case (supra) does not come to the rescue of the appellant.
25. Mr. Mathur has then cited the case of Hasan Ahmad Mai Isha and Ors. etc. v. State of Gujarat . In that case, during trial for he offence of murder, one of the two eye witnesses categorically stated that accused No. 1 had fired his gun at the victim and that the gun shot injured the victim in his abdomen. However, the medical evidence did not disclose any gunshot injury on victim's body. The eye witnesses also did not explain how they knew the names of the accused persons when they were not personally acquainted with hem. The wife of the victim deposed that the eye witness did not tell her as to who had murdered her husband. In such circumstances, the learned trial Judge was not satisfied with the veracity of the evidence given by the two eye witnesses and, therefore, gave benefit of doubt to the accused. In appeal against acquittal, the High Court took a different view and convicted the accused persons. On special appeal, the Hon'ble Supreme Court held that the assessment of the evidence and conclusions drawn by Sessions Judge were not so unreasonable as to warrant interference by the High Court in an appeal against the order of acquittal and accepted the Special appeal. Evidently, such are not the facts of the case in hand. Here, the incident look place in road day light in the Sadar Bazar of Pokran, which was witnessed by number of persons. The eye witness PW 1 Surja Ram and PW 20 Taju Khan have specifically proved the prosecution case. There is no variance between the ocular testimony and the medical evidence. The learned Sessions Judge has found he appellants guilty and his assessment is neither faulty nor perverse nor against the evidence recorded in this case. Therefore, this case also does not help the appellant.
26. Mr. Mathur has then cited the case of Ram Pukar Thakur v. State of Bihar . In that case, the prosecution case rested on the sole testimony of one eye witness and the learned Sessions Judge and the High Court concurrently relied upon his testimony. After a careful examination of the statement, the Apex Court held that his statement suffered from a serious infirmity; that admittedly several people from the neighbourhood met him at his house after the murder of his brother but he did not disclose the names of the assailants to anyone whosever. The other members of his family also did not mention the names of the assailants to anyone. Nakuldeo was aged 24 years and was employed at the Air Force Station, Agra. Their lordships held that it was impossible to accept his claim that he was so overwhelmed by grief that he could not even mention the names of the assailants to anyone. The incident had taken place on a dark night and there was no light either in the courtyard or in the house with the help of which assailants could be seen and identified. Their lordships of the Apex Court, therefore, held that it was not safe to place reliance on the testimony of such a witness in the instant case, a ghastly and gruesome murder was committed by severing the head of deceased inflicting sword blows by appellant Sawai Singh in broad day light in the main market. He was accompanied by appellant Pratap Singh and another absconding accused, who were also armed with a lathi and hockey and had not permitted others to come near the place of occurrence. The FIR was promptly lodged, wherein the name of appellant Sawai Singh finds mention. Therefore, the facts of R.P. Thakur's case (supra) are diametrically opposite to the facts of the case in hand and, as such, this case also does not assist the appellants.
27. Mr. Mathur has then relied on the case of Pancha Ram and Ors. v. State of Rajasthan 1985 WLN (UC) 582. It was a murder case, wherein independent witnesses, who had been named, were not produced by the prosecution. The occurrence took place before many a persons and only inimical and interested witnesses were produced. It was held that non-production of the independent witnesses gave rise to an inference that the case was concocted.
28. In the instant case, all the alleged eye witnesses viz; PW 4 Smt. Jallu, PW 5 Anna Raj. PW 6 Ram Chandra, PW 11 Kheta Ram, PW 12 Loonkaran, PW 13 Shambhu Ram and PW 15 Bhagwanji have been examined by the prosecution. However, they have turned hostile and not identified the appellants. PW 4 Smt. Jallur aged 50 years has stated that at the time of the incident, she was sitting on the shop of Parma Sunar; that two persons armed with lathies had come to the shop of deceased. She has also stated that she had told to the police that one of the assailants had beheaded Deepa Ram by sword and took away his head. However, she could not identify the accused persons. Thus, she has also deposed that in fact the alleged, incident had taken place but she did not identify the assailants.
29. PW 5 Anna Raj Vaidy has stated that at the time of the alleged incident, he was seeing a patient in his 'Aushdhalaya'; that he noticed three persons going away; that two had lathies while one person a sword in one hand and a chopped off head in his another hand and that the blade of his sword was stained with blood; and that those assailants were going towards Kumharon Ki Pol. He, thereafter, came out side his 'Aushdhayala' and saw the beheaded dead body of the deceased lying on the road. He also did into identify the appellants. He has further stated that he had seen a sheath lying near the dead body. This witness was declared hostile. Though he has not identified the appellants, still then he has proved the factum of the incident.
30. PW 6 Ram Chandra has stated that he is running a 'Kirana' shop in Sadar Bazar of Pokaran; that he knew Deepa Ram Darji; that at the time of the incident, he heard the cries ^^ekjs js ekjs js^^ that thereupon he came outside his shop and saw three persons, one of them had a sword, while other two persons were armed with lathi and hockey; that the person having the sword was inflicting sword blows on Deepa Ram, who fell down on the road and that the said assailant severed the head of the deceased by his sword and thereafter wen away along with he head of the deceased. He has further stated that other two persons also went away with him. He has deposed that he had seen the whole occurrence but he was so much frightened that he went inside his shop and closed the door from inside. He has stated that he could not identify those assailants. Thus, this witness has also proved the alleged incident but did not identify the assailants. It is abundantly apparent that due to fear, this witness has suppressed the truth and not disclosed the identity of the assailants. However, his statement fully corroborates the sworn testimony of PW 1 Surja Ram and Taju Khan as to how the incident had taken place.
31. PW 10 Mohan Lal, who had permitted the deceased Deepa Ram to run his tailoring shop on the 'Chabutara' just infront of his godown, has stated that Deepa Ram was murdered and that he had seen his beheaded dead body.
32. PW 11 Kheta Ram Soni, who was also running a tailoring shop in that 'bazar', has stated that on hearing the noise, he saw towards the shop of Deepa Ram and found him lying on the road. He has deposed that he had seen one person cutting the head of Deepa Ram by inflicting sword blows and that on seeing that occurrence, he was so much frightened that he went inside his shop and could not identify the assailants. This witness was also declared hostile.
33. PW 12 Loon Karan, who was running a tea stall near the shop of deceased, has stated that at the time of the incident, he was at his house because he was suffering from diarrhoea. This witness has been declared hostile and he does not heop the prosecution. Similar is the testimony of PW 13 Shambhu Ram, who has stated that on the day of occurrence, he had gone to some other village and was not present there. He was also declared hostile. PW 14 Narsinghdas alias Bhagwanji has stated that at the time of the alleged occurrence, he was not present on his shop but was at his house due to fever. This witness was also declared hostile. The learned trial Judge has also given his impression about this witness and mentioned in his statement that this witness was to the question put by the court, replied that he did not want to give evidence in this case, because he was suffering from ailment and was also much frightened. This fact also shows that the witnesses were frightened and terrified.
34. The prosecution has thus examined almost all the independent witnesses. Therefore, it is not a case of withholding of material and independent witnesses by the prosecution. In such circumstances, the facts of the Pancha Rain's case (supra) arc clearly distinguishable and the appellants cannot derive any benefit therefrom.
35. In our considered opinion, the learned trial Judge was neither swayed by sentiments or tender feelings nor his approach in assessing the evidence recorded in this case has affected his objectives of judgment. To our mind, he scanned and evaluated the statement of PW 1 Surju Ram and PW 20 Taju Khun and other eye witnesses in a right perspective and not committed any error in relying on the testimony of Surja Ram and Taju Khan.
36. In this case, the incident took place at 5.45 p.m. on 16.683 and the written report Ex.P. 1 was lodged by PW 1 Suja Ram on the same day at 6.00 p.m. at Police Station, Pokran. Suja Ram has stated that while he was going to he Police Station, some kids had informed him that the assailants had come in a Jonga Jeep, which was parked near Kumharon Ki Pol. He has, however, stated that he did not remember the number of Jonga Jeep and that he had also no given the colour and number of the said Jonga Jeep in the report Ex. P.1. However, the colour and number of Jonga Jeep finds mention in written report Ex.P.1, on the other hand, Lal Singh has deposed that Suja Ram had filed written report Ex.P. 1 before him. Hence, it cannot be held that the FIR is a fabricated or post investigation document. Firstly, in this case, after registering the case on the basis of Ex.P.l, PW 22 Lal Singh had gone in hot pursuit of assailants in the police jeep following the tyre marks of the Jonga Jeep and the initial investigation was conducted by PW 21 Jai Singh, who was posted at Police Station, Nachna. Jai Singh has deposed that on receiving a wireless message from Dy. S.P., Jaisalmer, he reported at Police Station, Pokaran on 17.6.83 at about 2.45 A.M. where he was directed to inspect the place of occurrence and conduct investigation. He has stated that he rushed to the place of occurrence, inspected the site in the morning and prepared the site plan Ex.P. 31 and memo thereof Ex.P. 2., He also prepared the autopsy report of the beheaded body of the deceased and seized and sealed the blood stained soil, sample of soil, blood stained hair, blood stained sheath, blood stained lathi from the place where the dead body of deceased was lying on the road vide seizure memo Ex.P. 28. He also seized and sealed the packet empty bag of cloth, a pair of shoes (Article 5) and another pair of shoes of the deceased vide seizure memo Ex.P. 29. He also got the post mortem examination of the dead body of deceased conducted by doctor and thereafter seized and sealed the blood stained shirt, dhoti and 'angochha' taken out from the dead body of deceased vide seizure memo Ex.P. 30. In all these memos, the FIR number finds mention. Jai Singh has stated that he conducted the investigation in this case on 17.6.83 till 10 A.M. and that thereafter when PW 22 Lal Singh came back, he handed over the case diary to him.
37. Mr. Mathur has urged that written report Ex.P.1 has been neatly written having all the details, which was not possible within such a short span of period of fifteen minutes. According to him, this fact reflects hat report Ex.P.1 was written later on. He has placed reliance on the case of Datar Singh v. State of Punjab . In that case, the FIR was very neatly written at Police Station in which the time of the occurrence was given as 9 P.M. It was stated by the eye witness Balbir Singh that the police came with Joginder Singh only 20 or 30 minutesd after Joginder Singh had gone to the Police Station and that it must have been 10 P.M. by that time, it was held that it was difficult to believe that so neatly written and detailed a FIR could have been written up so soon and that it was more likely that if Joginder Singh returned so soon with the Police, the FIR was drafted and written up carefully afterwards. In the FIR, the time and date of despatch to the Magistrate were also not mentioned. In such circumstnaces, it was held that the FIR was drafted later on. The Apex Court also held that two eye witnesses on which the persecution wanted, to rely, were unreliable and their very poresence at the scene of murder by shooting was doubtful and that their statements about the time of incident were contradictory and irreconcilable. It was also held that the prosecution cannot derive benefit from merely suspicious circumstances that the accused did not surrender or was not traceable for nearly one year. In such circumstances, the appeal was allowed. In the case in hand, we do not find any material inconsistency in the statements of Suja Ram and Lal Singh. The report Ex.P. 1 was lodged promptly and the case was registered and the FIR was sent on 18.6.83 which was received by the Magistrate on the same day at 11 A.M. because those days, the courts were observing morning hours. Thus, the delay in despatch of the FIR has also been satisfactorily explained. In such circumstances, it cannot be held that the FIR Ex.P. 1 is fabricated and post investigation document.
38. Mr. Mathur has cited the case of Bandi Mallaiah and Ors. v. State of Andhra Pradesh 1980 SCC (Cri) 672. In that case, the time of giving FIR was doubtful and names of accused were deliberately introduced at a later stage. In view of the discrepancy in the FIR and other evidence, it was held that the High Court was not justified in reversing the order of acquittal of the trial court and convicting the appellants Under Section 302/34 IPC. The facts of this case are clearly distinguishable. Had the FIR in this case been fabricated and post investigation document, then the names of appellant Pratap Singh and absconding accused Narpat Singh would have also been incorporated. Moreover, this is not an appeal against acquittal. Hence, Bandi. Mallaiah's case (supra) renders little assistance to the appellants.
39. Another case cited by Mr. Mathur is Sevi and Anr. v. State of Tamil Nadu and Anr. . In that case, there was an allegation by the accused that original FIR was suppressed by police officer and was substituted by another. Despite the direction of the court, the police officer failed to produce the FIR book in the court. General dairy at police station was also not produced. Therefore, it was held that an inference could be drawn, that original FIR was suppressed, which made the prosecution case suspicious. Apparently, the facts of this case are distinguishable.
40. We have meticulously examined the original FIR Ex.P.1 and various memos prepared by PW 21 Jai Singh ad also the statements of Suja Ram and Lal Singh and not an iota of doubt lurks into our mind to hold that FIR in this case is a fabricated or post investigation document. On the other hand, it stands well established that the FIR was lodged promptly and there was no occasion for making any embellishment or improvement in the prosecution story.
41. Appellant Sawai Singh was arrested on 21.6.83 by PW 22 Lal Singh vide arrest memo Ex.P. 17. Lal Singh deposed that on the sameday, Sawai Singh voluntarily made a disclosure statement Ex.P. 34 and in pursuance thereof got blood stained sword (Article 14) and the blood stained pant ant shirt (Articles 15 and 16) recovered vide recovery memo Ex.P. 18, which were lying concealed under neath a bush of 'ker' tree. PW 8 Abhay Singh has fully corroborated the statement of Lal Singh. Those articles were lying concealed under a 'ker' tree. Therefore, recovery of those articles was not from an open place. As a matter of fact, appellant Sawai Singh had the knowledge that those articles were lying concealed and he got the same recovered in pursuance to his voluntary information. Lal Singh and Abhay Singh have also deposed that the above mentioned articles were sealed on the spot in different packets. Therefore, it stands well proved that those articles were scaled on the spot after recovery.
42. Mr. Mathur has relied on the case of Lakhma v. State of Rajasthan 1983 Cr. LR (Raj.) 536. It was a case under Sections 302 and 201 IPC and based on circumstantial evidence. Th deceased was last seen with the accused and there was recovery of silver bottons and watch of the deceased, but the witnesses did not identify those articles and were uncertain about the place of recovery. The also did not say that the said watch belonged to deceased. In such circumstances, the appellant was acquitted. Evidently, such are not he facts of the case in hand.
43. The prosecution has adduced clear and cogent evidence to prove that all the sealed packets of the various articles seized/recovered by the Investigating Officers in this case were kept in safe custody in the malkhana of the police station and were handed-over in the office of the State FSL, Rajasthan, Jaipur intact. The Serologist in his report Ex.P. 52 found that the sword, pant and shirt recovered at the instance of appellant Sawai Singh were stained with human blood. Therefore, the recovery of aforesaid articles incriminates the appellant Sawai Singh with the crime. In our considered opinion, the learned trial Judge has not committed any illegality either of fact or of law in convicting appellant Sawai Singh for the offence under Section 302 IPC.
44. As regards accused Pratap Singh, it is true hat his name does not find mention in the FIR because PW 1 Surja Raj did not know him previously. He was arrested on 13.7.83 vide arrest memo Ex.P. 16 and was admitted in jail on 18.7.83 as per col. 5 of identification parade memo Ex.P. 5. On 21.7.83, PW 22 before the learned MJM, Pokran requesting for conducting the test parade of Pratap Singh. The Magistrate sent for the report of the criminal clerk as to whether any particular Magistrate had been appointed by the learned Sessions Judge for conducting the identification parade. The Criminal clerk reported on 23.7.83 that no other Magistrate had been authorised specially for that purpose. Thereupon, PW 2 M.L. Gaur, MJM, Pokran sent the letter dt. 23.7.83 Ex.P. 24 to the Incharge, Sub-jail, Pokran intimating that identification parade will be conducted on 25.7.83 at 4.00 P.M. and to make necessary arrangements. Thereupon, on 25.7.83, ten under trials were mixed with appellant Pratap Singh and a test identification parade was conducted by the Magistrate, wherein PW 13 Shambhu Ram did not identify appellant Pratap Singh but PW 1 Suja Ram correctly identified him as per col. 10 of the identification memo Ex. P.5. Appellant Pratap Singh had also told the Magistrate that he was not earlier known to Suja Ram but the latter knew him previously. However, no such question has been put to Suja Ram in his cross examination that he knew Pratap Singh previously. Moreover, had Suja Ram known appellant Pratap Singh previously then definitely he must have mentioned his name in written report Ex.P-1. This fact itself shows that Suja Ram was not known to Pratap Singh Previously. Therefore, the delay in conducting the test parade has been very well explained in this case.
45. Mr. Mathur has placed reliance on the case of Pritam Singh v. State of Rajasthan AIR 1971 Raj. 184, wherein it has been held that identification parade after inordinate delay is not proper in absence of any canvassing explanation for delay. We respectfully agree with this proposition of law but in the case in hand, the delay has been well explained. In Pritam Singh's case, the Magistrate, who conducted the test parade was not even examined. Therefore, Pritam Singh's case (supra) is clearly distinguishable.
46. PW 20 Taju Khan has deposed that appellant Pratap Singh had accompanied Sawai Singh at the time of the incident and that he was armed with a lathi. PW 1 Suja Ram and Taju Khan have also deposed that all the assailants had come together and after committing the murder of deceased had gone together. This amply proves that appellant Pratap Singh and Sawai Singh and absconding accused Narpat Singh had common intention to commit the murder of deceased and in furtherance of that common intention appellant Sawai Singh had inflicted numerous sword blows and beheaded the deceased Deepa Ram and committed his murder, while appellant Pratap Singh and absconding accused vicariously were standing by his both sides to ensure that persons who had assembled there may not come near them. This clearly proves the common intention of appellant Pratap Singh and he is vicariously liable for the act of appellant Sawai Singh. In our considered opinion, the learned Sessions Judge has neither misread the evidence nor ignored material facts nor committed any grave error in holding appellant Pratap Singh guilty of the offence under Section 302 read with 34 IPC.
47. No other point was pressed before us.
48. In the premise of the above detailed discussion, we dismiss this appeal and uphold the conviction and sentences passed against the appellants by the learned Sessions Judge, Jodhpur.