Rajasthan High Court - Jaipur
Narendra Kumar @ Nagin vs State Of Rajasthan on 6 July, 2005
Equivalent citations: RLW2005(4)RAJ2580, 2005(4)WLC337
Author: Vineet Kothari
Bench: Vineet Kothari
JUDGMENT V.K. Bali, J.
1. In this appeal, that has been filed by Narendra Kumar @ Nagin who was tried with his co-accused Shankarlal & Rajesh, since acquitted, two fold contentions that have been raised by the learned Counsel for the appellant are that no reliance can at all be placed upon the alleged eye- witnesses and therefore, Narendra Kumar @ Nagin like his co- accused named above ought to have been acquitted. If however, this Court might find statements made by eye-witnesses to be inspiring confidence then Narendra Kumar @ Nagin could at the most be convicted under Section 304 Part II IPC.
2. With a view to appreciate the contention of the learned Counsel as noted above it will be necessary to take into consideration back drop of the events leading to death of... murder Narendra Kumar @ Nagin, after trial was held guilty for offence under Section 302 IPC and sentenced to undergo Rigorous Imprisonment for Life as also to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo Simple Imprisonment for three months. The appellant has also been convicted under Section 323 IPC and sentenced to undergo Simple Imprisonment for a period of one year. The order of conviction and sentence as mentioned above was passed against the appellant by the learned Addl. Sessions Judge (Fast Track), Ajmer on 25.7.2001.
3. The prosecution version was unfolded by Sunderlal Khatri PW1. While lodging FIR on 28.9.99 at 11.00 AM in the hospital itself he stated that he was residing in Ram Nagar. Yesterday on 27.9.99 at night he was at his home. His brother Mukesh Kumar @ Munna was also residing with him in the home. His elder brother Thakur Das came to his home at 10:00 PM at night. He was bleeding from mouth. He told him that 4-5 persons had given beating to him. On hearing him, he alongwith his brother Thakurdas, another brother Mukesh went to Siv Nagar, Shakti Colony. They were told on the way that Shankar, Nagin & Rajesh had given beating to Thakurdas. All three brothers had gone to counsel upon Shankar and others at the house of Nagin. When they had reached at the house of Ramesh the lights went off all of a sudden. His son Vivekanand @ Manoj had also come behind them. Because of darkness Nagin gave a blow with an iron rod (Sariya) because of which his head was torn. When he had just regained his balance Nagin gave an iron rod blow on the head of his brother Mukesh, because of which he became unconscious at the spot. Before they could defend themselves Shankar & Rajesh together caught hold of them. At that time Laxminarain, Rajesh S/o Kashisha and other persons of community had also come there. These people, lifted his brother Mukesh to the house of Laxminarain. When, however, he did not regain consciousness he was taken to hospital where his medical treatment was continuing. His brother died today on 28.9.99 at 11.00 AM. He further stated that he had not got his statement recorded earlier being a person of the community.
4. The facts brought on record reveal that the occurrence leading to death of Mukesh had taken place on 27.9.99 at 10: P.M. whereas the FIR as mentioned above was lodged by his brother Sunderlal PW1 at 11:00 AM on 28.9.99. The statement was recorded by Nirmal Sharma PW9 SHO of the Police Station. The special report (Ex.P13) with regard to the incident reached the concerned authorities on 28.9.99.
5. With a view to bring home the offence against the appellant and his co-accused Shankarlal & Rajesh, since acquitted, prosecution examined Sunder Lal Khatri as PW1, Laxmi Narayan as PW2, Thakur Das as PW3 and Manoj Kumar as PW4. All these witnesses claimed to have seen the occurrence themselves. Pooran Singh examined as PW5, had only carried articles to the Forensic Science Laboratory. Dr. Nand Lal Hiranandani examined as PW6, had conducted post-mortem on the dead body of Mukesh. Bhawani Singh Rathore examined as PW7, had registered an FIR against the appellant and two others named above. Dr. R.N. Mathur examined as PW8, deposed with regard to the injuries sustained by Sunderlal. Nirmal Sharma examined as PW9 deposed with regard to the steps taken by him while investigating the case. The prosecution also relied upon the written report lodged by Sunderlal PW1. Panchayat Nama of deceased Mukesh Kumar Exhibit P2. Description memo of dead body of deceased Mukesh Kumar Ex.P3. Site Plan with its description is Ex.P5. Injury report of Mukesh Kumar is Ex.P9. Post Mortem Report of deceased Mukesh Kumar is Ex.P10. Injury report of Thakur Das is Ex.P11. FIR No. 260/99 registered at Police Station Christian Ganj, Ajmer is Ex.P11 and the report of FSL is Ex.P18.
6. The appellant when examined under Section 313 Cr.P.C. besides denying the incriminating material put to him pleaded that he has been falsely involved in the case. In is defence, he proved written report lodged by Sunderlal as Ex.D1 and the statements of Sunderlal and Manoj recorded under Section 161 Cr.P.C. as Ex.D2 and D3 respectively.
7. Post Mortem Report Ex.P10 reveals following injuries that were sustained by deceased Mukesh Kumar.
"1. Heamotoma 4 cm. x 3 cm. (Rt.) side parito occipital region.
2. Contused swelling, 64 cm. over left temple.
3. stitched wound 4 cm. long inner side of left ear lobe.
4. Bruise 5 x 4-1/2 cm. over left arm on middle 1/3 antero laterally.
5. Abrasions (two) 2 x 1/2 cm. each on (Rt.) leg middle 1/3 antero medially."
8. The cause of death in the Post Mortem Report has been stated to be Coma as a result of ante mortem head injuries.
9. While appearing as a witness Dr. Nandlal Heeranandani PW6, who conducted Post Mortem on the dead body of Mukesh on 28.9.99 stated that the deceased Mukesh died at 11:30 AM on the said date. He had not found any injury on the thorax part of his body. He made a mention of the same injuries having found on the dead body of Mukesh that were mentioned by him in the Post Mortem Report Ex.P10. On dissection of the dead body he found a fissure fracture measuring 14 cm. lying on left temporal part going towards left parietal bone. He also found Heamotoma with injury No. 2. He also stated that on 28.9.99 he had medico legally examined Thakur Das and found following injuries on his person.
" 1. Lacerated wound 1 cm.x 1/4 cm. skin deep inner surface of lower lip with swelling over left side of lower lip with C/o loosing of teeth.
2. Contusion 1 x 1/2 cm. upper lip inner surface.
3. C/o Pain over left buttock and chest.
4. Contused swelling Nose-X ray Nosal Gns. Adv."
10. In his cross-examination he stated that all the injuries found in post-mortem report like Heamotoma, Swelling and lacerated wound could have been sustained on account of falling on a rock. The fractures on the head could also be caused because of falling on a rock. He stated that in the Post Mortem Report it was mentioned that death was because of Heamotoma which had developed and resulted into Coma and if by treatment Heamotoma was removed by the concerned doctor in time, deceased Mukesh Kumar could survive. On a question put to him as to whether in the Photograph where a water pipe is protruding from the surface of the land and where there is an iron pipe and a pole and where rocks are also there and if a person is to fall on the said site on a pipe of water, could be sustained fracture on the head and if right side of his head was to strike could he sustain fractures on the right side. The doctor replied by saying that such a possibility could not be ruled out. It is significant to mention at this stage itself that neither in the post-mortem report nor even in his examination in chief when Dr. Nandlal appeared it was stated that the injuries sustained by the deceased Mukesh Kumar were sufficient in the ordinary course of nature to cause death.
11. Sunderlal appearing as PW1, deposed in tune with the FIR lodged by him. While giving narration of the events, he stated that Nagin had given a blow on his head and before he could balance himself Nagin caused injury to Mukesh with an iron rod on the left side on his ear (Kanpati). He further stated that Rajesh caught hold of him whereas Shankar had caught hold of Thakur Das and before they could get themselves free Nagin gave 2-3 blows to Mukesh and as soon as Mukesh fell on the spot all three Shankar, Rajesh and Nagin ran away from the spot. He further stated in examination-in-chief that at 1.15 AM Police came in the hospital and enquired from him as to how and why the dispute had taken place and asked him to lodge the report but he told the police that as his mental condition was not stable and he had also sustained injuries on his head and his brother was lying unconscious, he would give his report in the morning at the Police Post. He further stated that he had given his report at 1.30-2 AM to the Police by writing on a paper. He had lodged the FIR after the death of his brother outside Post Mortem Room. In his cross-examination he stated that the Police Post falls on the way if one is to go to the hospital from the house and all persons at the spot belonged to their community and were related to him. He did not tell those 20-30 persons collected there to lodge the report. About 7 to 10 persons were available at the house of Laxminarayan. He did not send any of those persons to the Police Station. He further stated that on an inquiry made by the doctor as to how Mukesh had received injuries he had told about the occurrence to him. It was told by him to the doctor at 11-11.15 PM in the night. He further stated that the Police had stayed in the hospital at night for 1-1/2 hours and 15 minutes and before the Police had gone from there he had given the report on a piece of paper. He admitted that before he had given report at night to the Police he had orally narrated the incident to the Police. He admitted that he had lodged the FIR at 11.00 PM and before that Thakurdas and Manoj had not narrated the occurrence to the police. He further stated that he had told the police at 11:00 PM at night that Nagin had given an injury to Mukesh with an iron rod on his head. He admitted having lodged report Ex.D1 at night. He further admitted that in the report Ex.D1 he had not mentioned that Thakur Das had come to their house and told him that 3-4 persons had given beating to him. He also stated that he had forgotten to mention the same in Ex.D1. With regard to the other matters he also stated that he had forgotten to mention the same in the FIR Ex.Dl. He admitted that in front of the house of Nagin there were some rocks but the same were smaller in size. He admitted that Mukesh had fallen on the rocks. Laxmi Narayan examined as PW2 supported the prosecution case. He, however, stated in examination-in-chief that when he went to the spot he saw that Sunder was bleeding from his head. Sunder had caught hold of Thakurdas, whereas Rajesh had caught hold of Sunder. He again stated that actually Shankar had caught hold of Thakurdas whereas Rajesh and caught hold of Sunder. Mukesh was lying on the ground. He also stated that before he reached there people from locality had already collected. Mukesh was lying on the ground unconscious. In his cross-examination he admitted that Mukesh was his brother-in-law and Sunder was elder son of his brother-in- law. He also admitted that Mukesh had fallen on rocks and that portion is rocky. Thakurdas examined as PW3 who is brother of Sunder first informant and Mukesh-the deceased, supported the prosecution case. He stated in examination-in-chief that he had a dispute with regard to electricity bill with his tenant Shankarlal. He demanded electricity bill from Shankarlal and asked him to vacate the house if he was not to pay the electricity bill. Shankarlal replied that he would neither pay the rent nor would vacate the house and he would neither pay the rent nor would vacate the house and he could do whatever he thought fit. Meanwhile, Rajesh and Nagin also came there. They all started beating him. Thereafter, he came to the house. He narrated the incident to his brother Sunderlal. His brother Shankarlal told him to follow and also told that Shankarlal was a tenant and he could not have given him beating. He alongwith Sunder and Mukesh then went to the house of Narendra, where Narendra, Shankarlal and Rajesh were sitting ready and the moment he reached Narendra gave a blow with iron rod on the head of Sunderlal. Before Sunderlal could regain balance Narendra gave 3-4 blows to Mukesh with an iron rod. In his cross-examination he stated that the house of Narendra was at a distance of less than 5 km. from his house. He admitted that he had not told the Police that the Nagin had given 3-4 injuries to Mukesh.
12. Mr. Bajwa, learned Counsel representing the appellant vehemently contends that once, Sunderlal had lodged the report Ex.D1 at night itself in which Mukesh was stated to have become unconscious and there was mention of dispute between the parties, Ex.P1 could not partake the character of an FIR and the same would be rather hit by the provisions contained in Section 162 of the Cr.P.C. Ex.Dl alone in the circumstances could be read and treated as FIR which did disclose commission of an offence by the appellant. He further contends that Sunderlal PW1 cannot be termed as a truthful witness. Infact he is wholly unreliable witness and no conviction upon his testimony can be recorded. He further contends that in so far as the alleged eye-witnesses are concerned they had not seen occurrence. The learned Counsel also contends that if this court might come to the conclusion that Sunderlal, and other alleged eye-witnesses are to be believed then the appellant cannot be said to have committed an offence under Section 302 IPC. His offence would not go beyond section 304 Part II IPC, further contends the learned Counsel.
13. We have heard the learned Counsel appearing for the parties and with their assistance examined the records of the case. We do not find any merit in the contention of the learned Counsel that once Sunderlal had lodged report Ex.D1 at night the same had necessarily to be treated as an FIR and further that Ex.P1 taken as an FIR would be hit by the provisions contained in Section 162 Cr.P.C. It is significant to mention that the learned Counsel does not dispute that Ex.Dl does not disclose commission of a cognizable offence. He however, insists upon that once, mention of dispute was made in Ex.Dl the same ought to be treated as an FIR and the Police ought to have started investigation on lodging of report Ex.Dl. We are of the considered view that Ex.Dl had not disclosed commission of any cognizable offence. The observation made above, would be fortified from reading of Ex.Dl which when translated into English reads thus :
"It is prayed that I am Sunderlal s/o Ramkishan Khatri, by caste Khatri (Madrasi), resident of Ramnagar Pushkar Marg, Ajmer, opposite to Bharat Bhawan, Addhat Asharam.
Alongwith me my brother Mukesh Kumar Khatri is also residing. Today at night at about 10:00 PM my elder brother Thakurdas Khatri, who is also residing in Shivshakti Colony (Shivnagar) came to our house and stated that there has been a dispute between him and his tenant Shankarlal on account of electricity bill. After hearing this, I alongwith my brother Thakurdas and Mukesh went to Shivnagar. Vivekanand (Manoj) also came behind us. Shankarlal belongs to our community and for that reason we had gone to counsel both at the house of Shankarlal but Shankar was not at his house as he has gone to his inlaws. His inlaws were residing at a short distance. We, however, went towards his inlaws house where Shankar and his two brother-in-laws Narendra (Nagin) and Rajesh met us. There was a fight at that place but since we both the sides belong to same community and my mental condition was not proper at that time and my brother was unconscious and who cannot give statement at this time, I would go to the Police Station or Post in the morning and whatever we might report I shall state the same. This time at night I do not want to do any proceedings."
14. Reading of FIR produced above, in our considered view, as mentioned above, would not disclose any cognizable offence. There was no mention in the report aforesaid as to who caused injuries, what was the nature of injuries and the result thereof. The interse dispute between two groups had resulted into one person becoming unconscious at the most. By no stretch of imagination this report would partake the character of an FIR under the provisions of Section 154 Cr.P.C. It is not in dispute that FIR is only an information to the Police of such an offence which may enjoin upon the Police to carry out the investigation. The Police, once again it is not in dispute, would carry out investigation only with regard to cognizable offence so specified in the Cr.P.C. All offences under IPC are not cognizable. Report Ex.Dl had not disclosed commission of any cognizable offence so specified in the Cr.P.C. As mentioned above, the disclosure was only with regard to a dispute having been taken between two parties resulting into unconsciousness of one person. There was no mention of any injuries having been caused to the said injured person. Mere unconsciousness of a person would disclose no cognizable offence. Relevant part of Section 154 Cr.P.C. reads as follows:
"Section 154-Information in cognizable cases-(l) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf."
15. Perusal of provisions of Section 154 Cr.P.C. reproduced above would also reveal that the FIR which may lead to the investigation has to pertain cognizable offences. FIR, in other words, is an information which sets the Investigating Agency into motion. In the context of what has been observed above, Ex.Dl could not partake the character of an FIR. As a necessary corollary to the observation made above it has to be held that Ex.Dl was not the FIR in the present case. It has further to be held that Ex.P1 which we have held to be an FIR would not be hit by the provisions contained in Section 162 Cr.P.C. as the same was not the statement made to the Police in the course of an investigation. It is only those statements which are made in the course of investigation that would be covered under Section 162 Cr.P.C. Once, Ex.P1 alone had set the Investigating Agency into motion all subsequent statements made thereafter may be covered under Section 162 Cr.P.C. but not Ex.Dl. The first contention of the learned Counsel as noted above is thus repelled.
16. The second contention of the learned Counsel that Sunderlal cannot be termed as a truthful witness and infact he is wholly unreliable witness, also cannot be accepted. Sunderlal is an injured witness. It was not even the suggestion made by the appellant that injuries found on his person were self sustained or could have been caused by friendly hand. The injuries sustained by his coincide with the time Mukesh received injuries at hands of the appellant. Sunder in our view is a stamped witness and his presence is established at the seen of occurrence because of injuries sustained by him. In the context of the facts and circumstances of this case, presence of Thakurdas, who received injuries immediately preceding injuries sustained by Mukesh, also cannot be doubted. The whole prosecution version is based upon the injuries received by him. After having received injuries at the hands of the appellant and his co-accused, it was natural for him to have reported the matter to his brother who in turn decided to counsel upon the appellant and his co-accused. In so far as the presence of third eye-witness namely Laxminarayan is concerned, the same though appears to be doubtful but that in our considered view would not make the least difference in the case. It has further to be held that in as much as all the witnesses are closely related to deceased Mukesh, their evidence has to be scrutinized with great deal of care and caution. Sunderlal-the first informant and the deceased Mukesh are real brothers. Thakurdas is also brother of Sunderlal. Laxminarayan PW2 as per his own showing is related to Sunderlal. Sunderlal is the elder son of his brother-in-law, as stated by him in the cross-examination. All the witnesses are thus inter-se related. The first informant Sunderdas, it may be recalled, had not lodged the FIR in the first instance on the plea that they and the accused party belong to the same community. He was preplexed because of the injuries sustained by him and his brother was lying unconscious. He admits arrival of the Police in the hospital and his making statement in writing to the Police at 1- 1.30 at night. It is this writing which in all probability was recorded as Ex.Dl at night. The very fact that Sunderlal in the first instance while making report Ex.Dl did not blame anyone, would suggest that he had something to conceal.
17. In the facts and circumstances of this case it appears that seeing his brother Thakurdas bleeding he thought of teaching a lesson to the tenant of his brothers and others who had beaten Thakurdas. The version in the FIR Ex.Dl that he had only gone to counsel upon Shankarlal and others does not appear to be correct. Further, statement made by him and another witnesses that when they reached the house of the appellant and others they were sitting ready to cause the injuries, does not appear to be correct. This part of the case, it appears has been disbelieved even by the Trial Court, as it is for that reason only that the co-accused of the appellant have not been held guilty. The applicability of Section 34 of the IPC has been ruled out. There is no appeal against the acquittal of the co-accused of the appellant. From the totality of the facts and circumstances of this case, it rather appears that the first informant and his companions after Thakurdas had received injuries, had gone to remonstrate with the appellant and his co-accused. In the very facts of the case, there ought to have been some altercation preceding attack of the appellant and his co-accused.
18. In view of facts and circumstances of the case as fully narrated above, there appears to be considerable merit in the contention of the learned Counsel for the appellant that the offence in this case would be at the most covered under section 304 Part II IPC. Coupled with the observations made above it has further to be held that it appears to be a case of single injury having been caused by the appellant. In the FIR which has since been reproduced above, Sunderlal has not made a mention of repeated blows on the head of deceased. Reading of the FIR rather gives an impression that the appellant had caused one injury on the head of Mukesh with an iron rod, on receipt of which he fell on the rocks. The learned trial Judge while framing the charge against the appellant and his co-accused on 21.4.2000 also made a mention that the appellant Nagin gave a blow with an iron rod. There is no mention of his repeating the blows on the head of Mukesh. The first informant appears to have improved upon the version of the incident given by him in the FIR when he appeared in the witness box. Even though he stated in the examination-in-chief that the appellant had repeated blows with an iron rod after giving first injury to him, he admitted in the cross-examination that he told the Police at 11:00 PM in the night that the appellant had given injury to Mukesh with an iron rod on his head. That apart, PW2 Laxminarayan did not make a mention of any injury given by the appellant to Mukesh in his presence. He rather stated that when he came out he saw Sunder bleeding from his head. In so far as, Thakurdas PW3 is concerned, even though he stated in the examination-in-chief that the appellant had given 3-4 blows with an iron rod to the deceased, he admitted in the cross-examination that he had not told the Police that the appellant had given 3, 4 blows to Mukesh. Reference at this stage be made to the statement of the doctor who did not rule out the possibility of injuries sustained by the deceased because of his falling on a rock. Both the material witnesses, as mentioned above, have candidly admitted that on receipt of injuries Mukesh had fallen on a rock. The presence of rocks where fight had taken place is admitted by all the witnesses. Injuries found on the person of the deceased as per medical evidence were caused by a blunt weapon. Injuries No. 3, 4 and 5 were simple in nature. The doctor advised X-ray for injuries No. 1 and 2. Injury No. 1 which is Heamotoma of the dimensions of 4 x 3 cms., it appears to us was result of deceased falling on a rock. In any case the said injury having been caused in the manner aforesaid cannot be ruled out. It is only injury No. 1 which appears to have been caused by the appellant. The other three injuries which are simple in nature could have been caused on account of fight that had taken place.
19. In totality of the facts and circumstances of this case and in particular that it is not a case where the appellant and his co-accused were awaiting arrival of the deceased and his companions, the first informant and his companions going to the house of appellant where alone the fight had taken place, some altercation preceding the actual fight, one injury having been caused to the deceased Mukesh, the other serious injury in all probability the result of the deceased falling on the rock would surely attract the provisions of Section 304 Part II of the IPC only particularly when none of the injuries sustained by the deceased have been described to be sufficient to cause death in the ordinary course of nature. The appellant is said to have already undergone sentence for over a period of six years.
20. This appeal is partly allowed. The order of conviction and sentence recorded by the learned Trial Judge dated 25.7.2001 is set-aside. The appellant, however, is held guilty for the offence under Section 304 Part II IPC and sentenced to undergo imprisonment for the period already undergone by him.