Rajasthan High Court - Jaipur
Ram Karan And 2 Ors. vs State Of Rajasthan on 24 March, 1987
Equivalent citations: 1987WLN(UC)415
JUDGMENT
1. These three appeals: one filed by accused Ramkaran the other filed by accused Jawana, Mangla, Padma and Sobha Ram and the third filed by accused Jagannath through jail are directed against the judgment of the learned Additional Sessions Judge, Merta dated 26-2-1976 whereby the learned lower court has acquitted Imarta of all the charges framed against him whereas the accused-appellants have been held guilty of the offence under Section 302/149 and 148 IPC. However, the accused-appellants have been acquitted of all the rest of the charges framed against them. For the offence under Section 302/149, the accused appellants have been sentenced to imprisonment for life together with a fine of Rs. 100/ each and in default to undergo, 6 months rigorous imprisonment each. They have, however, been sentenced to 6 months rigorous imprisonment for the offence under Section 148 IPC. Both the substantive sentences have been ordered to run concurrently.
2. The facts necessary to be noticed for the disposal of this appeal briefly stated are: that one Bhuraram resident of Farrod was killed and it was suspected by accused Jagannath Mangla, Jawana etc that deceased Nathu and his companions etc. were responsible for his murder. That murder case was investigated by Shri Narain Singh, Inspector, CID, Jodhpur. It is alleged that Shri Narain Singh called Nathu and Hanuta for interrogation on 10-7 74. Pemaram was also interrogated by him on that day. PW 1 Chandra Singh who belongs to village Bugarda also came to Nagore on that day PW 3 Hanuta belongs to village Bugarda and deceased Nathu and PW 2 Pemaram belong to village Chhawata. It is alleged that deceased Nathu. Hanuta and Pemaram were sitting outside tractor workshop. Nathu and Pemaram planned to go by the motor cycle of Nathu. PW 1 Chandra Singh missed the bus and so, he also came to that workshop and there, he found these three persons sitting outside Delhi Gate. It is alleged that thereafter, they went to ease themselves towards the jungle. When they were returning back after easing themselves, Nathu was 15 Pawandas ahead of them. It is alleged that at about 7 p.m. accused Jawana mm, Manglaram, Sobharam; Padma, Jagannath add Ramkaran came from the eastern side. Accused Jagannath was armed with a double barrel gun. Accused Jawana and Sobharam were armed with Pharsies. Accused Mangla was armed with Kulhara and accused Padmaram and Ramkaran were armed with swords. As soon as Nathu saw them, he tried to run away whereupon accused Jagmnath who was armed with a double barrel gun fired a shot from his gun towards Nathu but that did not hit Nathu. He then took to his heels. While he was jumping over a ditch near the tractor workshop, he fell down. As soon as he fell down, he was immediately availed by these accused persons. The accused appellants encircled him. They immediately started beating him. Chandra Singh, Hanuta and Pemaram ran towards the hutments of Nayaks situated at a distance of about 20-25 pawandas from the place of the occurrence and started shouting 'Mare re Mare re.' It is alleged that accused Jagannath put his gun on the stomach of Nathu and fired the gun and after that, the accused persons left him and went away from the place of the occurrence. As soon as these witnesses reached near Nathu, they found him dead. On this PW 1 Chandra Singh asked Hanuta and Pemaram to take care of the dead body and then he went inside the tractor workshop, scribed a written report, which has been marked Ex. P 1 and presented it at P.S., Nagore at 7.30 p.m. On the basis of this report Ex. P. 1, a case under Sections 147, 148, 149 and 302 IPC was registered against the accused-appellants: The police immediately came into action. The site was inspected and the site plan Ex. P 3, site inspection memo Ex P 2 the inquest memo Ex. P 4 and Panchnama of the dead body Ex. P 5 were prepared. It is alleged that the SHO sent Hanuta and Pemaram to the Police Station and he went in search of the accused-persons but the accused-persons could not be arrested. It is alleged that four of these accused persons went in the same night to the Dhani of Ghasi. They were accused Mangla, Imarta, Sobharam and Jagannath. Accused Imarta and Jagannath were carrying guns and the rest were carrying pharsies and Kulhari There, these accused-persons were observed PW 4 Girdhari Singh, Constable who was sent for the service of some warrants to village Amarpura. He was sitting at the Dhani of Ghasi However, the accused persons could not be arrested. The photographs of the dead body of Nathu lying at the place of occurrence were also taken. The post mortem on the dead body of Nathu was conducted by Dr. P.R. Joshi on 11-7-1974. However, the accused persons could not be arrested. The Investigating Officer then informed the Dy. Superintendent of police PW 13 Khem Singh about this occurrence at about 11 p.m. and then, the Dy. S.P. too went in search of the accused-persons along with the SHO but in the night, the where abouts could not be traced On the next day, two eye witnesses were examined, by the Dy. S.P. However, the accused Jagannath was arrested on 22-8-1974 where as accused Padma, Mangla, Sobharam, Jawanaram and Imarta were arrested on 27-8-1974 and accused Ramkaran was arrested on 30-8-1974 On the information of accused Jagannath, one gun was recovered from Partap Sagar Tank of Nagore One of its barrel was also found loaded at the time of the recovery. The remaining accused also gave information about the recovery of their respective weapons and they were recovered vide Ex. P. 12 so Ex. P 20.
3. After usual investigation, the case against the accused persons was challaned in the court of learned Chief Judicial Magistrate, Nagore, from where, it was committed to the court of learned Sessions Judge, Merta for trial and ultimately the trial was held in tie court of learned Sessions Judge, Merta.
4. The accused-persons were charged with the offence under Sections 120B, 148, 302, 302/149 302/149 and 302/109 and 302/34, IPC. They did not plead guilty to the charges where upon, the prosecution examined in all 15 witnesses in support of its case. The statements of the accused persons were recorded under Section 313 Cr. PC. They have taken a plea of denial The accused Jagannath has claimed that he was a witness in the murder case of Bhura and he gave evidence against Nathu and others and so, he has been falsely implicated. Accused Mangla and Jawana are the real brothers of deceased Bhura. Accused Pad ma has stated that Bhura was his real nephew who has been killed and these three witnesses who killed him have stated against him because he was taking interest in the prosecution of that murder case. He has also stated that he filed a complaint under Section 107 Cr. PC against Pemaram, Hanuta and Nathu and. therefore, they are aggrieved against him. Accused Sobharam has also stated that he also filed a complaint under Section 107 Cr. PC against accused Nathu, Pemaram and Hanuta and so, he has been falsely implicated. Accused Jagannath has filed his written submissions also, in which, he has stated that Bhura's father and Nathu's father both are moneyed persons. Bhura and Nathu were on good terms and were going business together. It is alleged that Bhura and Nathu were indulged smuggling activities as well as in theft of idols. Before some days of the occurrence, they went together to sell some idols at Bombay. After the sale of these articles, Bhura came to Nagore and it is alleged that they went to the house of Nathu and in the night, he committed rape with the wife of Nathu. Nathu and his father were not there. When in the morning Nathu's father and Nathu came there, she told them that she will drown herself in the well for this serious misconduct of Bhoora whereupon, he assured her that he i.e. Nathu will take the revenge of this. Thereafter, in view of that assurance, Nathu and his companion Hanuta, Pema and others killed Bhura, about which, a case was registered and in that case, all these witnesses except Chandra Singh were the accused-persons along with deceased Nathu. Accused Jagannath has stated that he was approached by Tulchha, father of Nathu, to hush up the matter of Bhura's murder. He has further alleged that he was approached by the Dy S.P Nagore who himself was a Jat to help him in the investigation of this crime and on his great persuasion, he disclosed all these facts to him i.e. the Dy. S.P. Nagore. Tulchha came to know about it and, therefore, in order to take the revenge he has been falsely implicated at his instance. He has stated that on that day, he was at Padampur. The accused-persons examined in all 9 witnesses in their defence. The learned lower court after hearing the parties, decided the case as aforesaid and hence these appeals.
5. We have heard Mr. D.K. Purohit and Mr. Doongar Singh, learned Counsel for the accused-appellants, Mr. N. Khan, learned Public Prosecutor for the State and Mr. MM. Singhvi and Mr. S.K. Mathur, learned Counsel for the complainant.
6. The learned lower court has held that in this case, the FIR has been lodged promptly. According to the learned lower court, the names of the witnesses were disclosed in the FIR and, therefore, the examination of the two eye witnesses on the next day hardly matters It has further held that all these witnesses have unanimously stated that these six accused-persons came there armed with weapons and they inflicted injuries to Nathu while Nathu was returning towards the tractor workshop after easing himself. The learned lower court felt that although these three witnesses may be interested and inimical towards the accused-persons but they have withstood the test of long cross-examination and their testimony is supported by the medical evidence and hence, it is highly reliable. Their presence in the town of Nagore has been fully explained and, therefore, they cannot be termed to be chance witnesses According to the learned lower court, the injuries inflicted to the deceased were sufficient in the ordinary course of nature to cause the death. Injury No. 4 was individually sufficient whereas the other injuries were collectively sufficient to cause the murder in the ordinary course of nature according to Dr. P.R. Joshi and hence, it has held that it was not essential to mention the names of the accused-persons in the inquest memo. Specification of the injuries in the facts and circumstances of this case was not possible. It has further held that the defence evidence is procured one and it can be created at any moment. The court further held that testimony regarding the payment made by Jagannath at Anoopgarh is a tainted piece of evidence which can be created at any moment and, therefore, it has placed no reliance on the defence evidence regarding the plea of alibi. Relying on the testimony of the eye witnesses supported by the testimony of the Doctor and other witnesses, it has held the accused-appellants guilty as aforesaid and hence these appeals.
7. The learned Counsel appearing for the accused-appellants have not challenged before us this fact that Nathu was killed near the tractor workshop at Nagore at about 7 p.m. It has further not been disputed before us that he received all these injuries. The conclusion of the learned lower court that injury No. 4 was individually and the other injuries were collectively sufficient in the ordinary course of nature to cause the death of Nathu has also not been challenged before us. It was also not disputed that Nathu received 18 sharp weapon injuries and one gun shot wound. Learned Counsel appearing for the accused-appellants have only challenged the conclusion of the learned lower court regarding the participation of these accused persons in the crime. Their case is that three persons from Bharatpur side armed with guns came there. Nathu owned some money to them, which was not paid by him and, therefore, they killed him near the workshop and the accused persons have been falsely implicated because they stated against them before the police in the murder case of Bhura. So far as this story of the defence, that three persons armed with fire arms came to Nagore and killed Nathu, is concerned it is not believable. The learned Counsel for the accused-appellants have submitted that the place of the occurrence is situated just behind a number of shops and the workshop and all these shops were opened and some of back doors of the shops were open towards the place of the incident. In has been stated by the owner of the workshop as also by Abdul Gaffar, Yusuf, Hukmichand and many others that they have seen such unknown persons who fired three four rounds from their fire-arms and they have killed Nathu. This story of the defence as said above is unbelievable: firstly because Nathu has received as many as 18 sharp weapon injuries on all the vital parts of the body. He has only received one gun-shot injury in his abdomen and, therefore, this story that three or four persons killed him by their fire-arms becomes unbelievable on account of the presence of 18 sharp weapon injuries on his person. More over, if these witnesses have stated that they have seen such a thing, then they could have been examined by the defence because this was the defence theory from the very beginning. PW 13 Khem Singh, Dy. S P. has been examined in this case and he has stated that he has made enquiries from all the neighboured of the place of the occurrence but they pleaded ignorance about the occurrence. Some of them have stated that as soon as they heard the noise of gun shot, they closed their shops and ran away from there and others have stated that it was Wednesday and, therefore, they have closed their shops. Some of the neighbourers of the place of the occurrence have stated that by that time, they have already left their shops by closing them It has come in his evidence that he has examined Mohd. Yusuf, Shanker Mistry, Hukmichand and Ramkaran son of Jainarayan but none of them have stated that they have seen the occurrence as narrated by the defence. A suggestion was made to him that he has recorded their statements wrongly but he has denied their suggestion. In the view of the matter, we are convinced that the occurrence has not taken place in the manner suggested by the accused person.
8. The prosecution has examined three eye witnesses of occurrence, i.e., PW 1 Chandra Singh, PW 2 Pema Ram and PW 3 Hanuta. These witnesses have stated that they have been the occurrence as they went together with Nathu to ease themselves and while returning back, Nathu was 15 Pawandas ahead of them. They have further stated that these accused persons came from the eastern side of the tractor workshop of Shanker Mistry. These witnesses have further stated that accused Jagannath was armed with a double barrel gun, accused Mangla was armed with a Kulhari and accused Jawana and Sobha Ram were armed with Pharsis and accused Padma and Ramkaran were armed with swords. There is no difference in their testimoney regarding the weapons with which they were armed. It has been stated by these witnesses that as soon as Nathu saw the accused-persons coming towards him, he started running whereupon accused Jagannath fired from his gun but it did not hit Nathu. Nathu then ran towards the workshop. There was a ditch situated near the tractor workshop. As soon as Nathu tried to jump over that ditch, he fell down. No sooner he fell down, he was encircled by these accused-persons who started inflicting blows to him from their weapons. These witnesses ran towards the hutments and Dhani of Nayakas which was situated at a distance of 25 Pawandas from the place of occurrence and from there, they shouted 'MARE RE MARE RE'. According to these witnesses more than 40-50 persons came there but none of them came forward to rescue Nathu. It has been stated by them that the last act was performed by accused Jagannath. He put his barrel of the gun on the stomach of deceased Nathu and fired from it and thereafter, the accused-persons left the place of the occurrence. Thereafter, these witnesses came towards Nathu and found him dead. PW 1 Chandra Singh scribed a report and went to the police station and asked PW 2 Pemaram and PW 3 Hanuta to guard the dead body. The written FIR was lodged at the Police Station at 7.30 p.m.
9. Learned Counsel appearing for the accused-appellants have submitted that PW 1 Chandra Singh and PW 3 Hanuta belong to village Bugarda and PW 2 Pemaram and deceased Nathu belonged to village Chhawata and so, there is no possibility at all that all these four persons could have assembled there According to the learned Counsel, these witnesses are chance witnesses and, therefore, much reliance could not be placed on their testimony. The learned lower court has observed that these witnesses are not chance witnesses. They may be inimical and interested witnesses but rot chance witnesses. In this respect, the learned lower court has noticed the evidence of Prosecution witness 9 Narayan Singh. Prosecution witness 9 Narayansingh has stated that on that day, i.e. 10-7-1974 he called Rekharam. Nathu, Hanuta and Pemaram because in the murder case of Bhuraram, it was suspected that they were involved. On that day, he interrogated Nathu and Hanuta. He has further stated that Pemaram was also interrogated by him although he did not call him It is therefore, clear that these persons were there because they were called by the Dy. S. P. for interrogation in the murder case of Bhuraram It has been stated by PW 2 Pemaram that he belongs to village Chhawata. He wanted to go to his village on the motor cycle of Nathu and, they stayed there, because PW 3 Hanuta was waiting for the arrival of his tractor from Jodhpur. Thus, the presence of these witnesses at that place is most natural PW 1 Chandrasingh has stated that he came there to purchase certain things but he missed the bus and, therefore, he went towards the tractor workshop and there he met these three persons i.e. PW 2 Pemaram PW 3 Hanuta and deceased Nathu. They were known to him earlier. They went to ease themselves and while they were returning back after casing themselves this incident happened and he has lodged its written report in the Police. He is a person who signed all the memos; i.e. site inspection memo, site plan, inquest memo and the Panchnama Nash. Thus, his presence at Nagore cannot be ruled out.
10. Learned Counsel appearing for the accused-appellants have next submitted that FIR in this case is a suspicious piece of document. It was not lodged at the time when it is alleged to have been lodged. According to them, these witnesses were called at Nagore by sending them a jeep. They reached there at 4 a.m., and before that, it was not known who has killed Nathu and this intervening time was used to invent a story to implicate these accused-persons In this case, it has not been suggested as to why the police was interested in falsely implicating these accused-persons. Not a single question was asked to PW 9 Narayansingh and PW 14 Indersingh as to how they were intersted in falsely implicating these accused-persons. The FIR of this case is a written document which has been lodged by PW 1 Chandrasingh. PW 1 Chandrasingh was not at all involved in the murder of Bhuraram. He was neither a witness in that case nor he had to do anything in that case. What has been suggested in his cross-examination is that he is Nathu's real maternal aunt's son but that fact has been falsified by him because Chandra Singh's maternals and Nathu's maternals belong to two different castes. It was also suggested in his cross-examination that he is the real nephew of Hanuta but he has denied that fact also Even Hanuta has also denied that fact. Thus, PW 1 Chandrasingh is an independent witness and he has nothing to do with the murder of Bhurarm and, therefore, his services could not have been procured to foist a false case on the accused-persons. For the FIR it has been said that it is a suspicious document on account of the fact that at page No. 47 of the Rojnamcha, it has been recorded that that page has been pasted in the Rojnamcha. That page has been marked Ex. D 7, PW 14 Inder Singh gave a very valid explanation of this fact. He has stated that although, the report was written on page No. 47 on that day but on the next day L.C. Padamsingh who wrote that report in the Rojnamcha told him that that while taking out the signatures on the second copy of the Rojnamcha, the original copy has been torn and he had to paste it. How far this explanation stands the test of scrutiny has to be examined. We have perused the original Rojnamcha. Page No. 47 starts from the part of the report of item No. 315. Some of that report has been written on the back of page No. 46 and the remaining portion has been written on page No. 47. Thus, it is clear that this very page was existing in the Rojnamcha and it has not been changed The FIR has been recorded in report (Rapat) No. 315 and the proceedings taken thereafter have been recorded in Rapats No. 322. 323 and 323 and 324. Rapats No. 322. 323 and 324 contain consequential proceedings taken in pursuance of Rapat No. 321. The pages No. 46, 47 disclose one continuous process and. therefore, substitution of page is ruled out. More over pages No. 46, 47 and 48 form part of the same print as on the top of all these papers following the words and figures have been printed in lh-lq-cq--55-5-73-2.000x 200" Thus, they were printed at the same time and so, if any page was to be substituted, it could not have borne the same words and figures on the top. I, therefore, feel that this argument of the learned Counsel appearing for the accused-appellants that this page has been substituted has no legs to stand.
11. In this respect, one more argument was raised by the learned Counsel for the accused-appellants. They have submitted that the FIR reached the court on 12-7-1974. The Police Station is situated at a distance of 500 Pawandas from the Court, and how one and half day was taken in sending this report to the Court and, therefore, it was submitted that this FIR is a tainted document. In this connection, reliance on placed was Falaqsher and Anr. v. The State of Rajasthan(1978 Cr. LR (Raj) 613) where in it has been held:
It is beyond doubt that the FIR in respect of a cognizable offence should be lodged as soon as possible and in cases where the lodging of the report is delayed the said report not only gets benefit of its consultation but danger also creeps in of introduction of coloured versions, thought out stories and twists to actual facts in as much as during the time lag interested parties can be sounded and some of them can be shown as false witnesses and some innocent persons can be roped in and named as culprits as a result of deliberation. That is the reason why Courts have always insisted upon the prompt lodging of the report with the police and the immediate despatch of the copy of the report to the nearest Magistrate.
We have already held that the FIR was promptly lodged. In this case, it was argued by the learned Counsel for the appellants that these three witnesses were called at about 4 a.m. and then this FIR was lodged. We have already held that these witnesses were not sent for to falsely implicate these accused persons. Moreover, the Police also had no interest in falsely implicating them. The argument that can be advanced in this respect is that the FIR should be sent forthwith to the court so that the prosecution case does not become doubtful. In this respect, reliance has been placed on Palasingh and Anr. v. State of Punjab wherein it has been observed:
But we find in this case that the FIR was actually recorded without delay and the investigation started on the basis of the FIR and there is no other infirmity brought to our notice, then however, improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.
Reliance has also been placed on Thulia Kali v. The State Tamilnadu , Batarsingh v. The State of Punjab AIR 1976 SC 2421 and Balka Singh v. State of Punjab ) There is no doubt that the FIR should be sent forthwith to the court but mere non-sending of the FIR forthwith to the court concerned does not mean that the FIR is a tainted document.
12. It has also been held by a Division Bench of this Court in Yogendra Singh v. State of Rajasthan (1979 Cr. LR (Raj.) 443), it has been held:
From the authorities cited above, it can be said that under Section 157 Cr PC, on receipt of a report of a cognizable offence, the Incharge of the Police Station must 'forthwith' send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and if it is not done, then it is a serious infirmity in the prosecution case. But if in a given case on the evidence on record the Court comes to the conclusion that the FIR was actually recorded without delay and the investigation started on its basis and no other infirmity is brought to the notice of the Court, then however, improper or objectionable the delayed receipt of the report by the Magistrate concerned may be, it will not necessarily justify the conclusion that the entire case of the prosecution is false. It will depend on the facts and circumstances of each case as to what is the effect of delayed despatch of the FIR by the Officer Incharge of the Police Station and delayed receipt of the same by the Magistrate competent to take cognizance upon a police report.
It is, therefore, clear that the late sending of the FIR to the court concerned by itself is not sufficient to discredit the prosecution case. In this case, the investigation started immediately. We have already held that page 47 of the Rapat is a genuine document and the case number which is assigned to this case in Rapat No 321 is 79 of 10-6-1974 finds mention in the site inspection memo, site plan, the inquest memo, Panchnama Nash and other documents prepared at the spot. That clearly shows shows that the FIR was immediately recorded and the investigation was started on that basis and so, it cannot be said that simply because the FIR was sent late to the court concerned, it becomes a tainted document.
13. The only other circumstance which was pleaded for disbelieving this report was pasting of page No. 47 and was have already dealt with that aspect of the matter and have held that the page No. 47 of the Rojnamcha is a genuine document. We, therefore, hold that the late sending of the FIR to the court does not in any way adversely affect the merits of this case.
14. In this respect, one more argument was advanced that had the FIR been a genuine document, the names of the accused-persons should have been mentioned in the inquest memo which was prepared soon after the occurrence by PW 14 Inder Singh. The very fact that the names of the accused persons have not been mentioned in the Inquest memo clearly shows that the FIR is an after thought document which was prepared later in the early hours of the morning of 11-7-1974. A similar argument was advanced before the learned lower court also and the learned lower court while relying on a decision of their Lordships of the Supreme Court in Podda Narayana and Ors. v. State of Andhra Pradesh ) held that this argument has no legs to stand. In this respect, we cannot do better than to quote the observations of their Lordships of the Supreme Court in Podda Narayana and Others case (supra), which are as follows:
The proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to bow the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceeding under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report.
It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court.
In this case, it is not so that the names of certain accused persons and certain witnesses have been mentioned and others have been left out while preparing the inquest memo. The inquest memo contains only facts concerning the injuries received by the victim and what has been the cause of his death and, therefore, the non-mention of the names of the accused-persons cannot give rise to the conclusion that the FIR is a tained document or an after-thought document.
15. It was argued by Mr. D.K. Purohit, learned Counsel appearing for the accused-appellants that the occurrence took place at about 7 p.m. and the witnesses have stated that they saw the occurrence from a distance of about 24-25 Pawandas and it was, therefore, difficult for them to see the occurrence in the dim light because the sun sets on 10th July at 6.30 p.m. We are unable to accept this contention. In the month of July, the sun sets after 7.30 p.m. and not at 6.30 p.m. and, therefore, this argument has hardly any legs to stared. In summer season, at about 7 p m. a lot of sun light is available and the occurrence can safely be witnessed from a distance of about 20-25 Pawandas.
16. An ancillary argument connected with this argument was further advanced by Mr. D.K. Purohit where in he has submitted that if actually, the witnesses could see the occurrence, they must have disclosed the acts of each accused. We are afraid, we cannot accept this argument. When 5-6 persons encircled a man, gave beating to him and caused 18 sharp weapon injures, it is difficult for any person from a distance of 20-25 Pawandas to assign each particular injury to each particular accused, If such attempt is made, that may be a ground for discrediting the testimony of the witnesses. The evidence of the witnesses is very natural when they say that they could not observe as to which particular injury was inflicted by which particular accused. The injured fell down as soon as he jumped the ditch and he was availed at that moment and, therefore, a man who is encircled by 5-6 accused persons and is availed for inflicting injuries indiscriminately, it is difficult for a man to observe which particular injury was caused by which particular person.
17. Connected with this argument, one more argument was advanced i.e. that according to the site plan, when Nathu jumped the ditch and fell down his head should have been towards the south but when the site plan was prepared, his head was found towards the south. The injuries have been inflicted to Nathu in a lying condition and when such severe blows are inflicted to a person it is but natural the movement of his body must take place and therefore, when the deceased Nathu was found with his head towards the south, it does not mean that the story put forth by the prosecution is false.
18. It was also argued that according to the Doctor, injury No. 4 was sufficient in the ordinary course of nature to cause the death of deceased Nathu. It has further been stated by the Doctor that some of the injuries could have been received by the injured after he has breathed his last. The case of the prosecution is that after encircling the deceased, indiscriminate blows were given. Whether any blow was given to him after he breathed his last hardly matters. It only shows that the accused-parsons had a common intention to kill victim Nathu and, therefore, they have inflicted such a number of injuries to him. So much so, that a double barrel gun was also used and it was put on his stomach and was fired That was the last act. This only shows as to what was the intention of the accused persons. In order to take the revenge of Bhuraram's murder, they were determined to kill Nathu, who according to them was the breath and strength behind the plot to kill Bhura. Their intention is further char from the fact that they came armed with such deadly weapons and those deadly weapons were actually used in the occurrence. Despite a long and through cross-examination it has not been put to any of the eye witnesses that some of the accused-persons did not participate in the occurrence. The eye witness have categorically stated that all these accused-persons have taken part in the occurrence. It is true that these witnesses are inimical to the accused and they may be interested in the case but that is not enough ground to discredit their testimony. They only put the court on caution i.e. to examine their testimony with greater scrutiny and circumspection They have been thoroughly cross-examined and they have withstood the test of cross-examination where by their testimony given in the examination in chief could not be shattered in any way. Their version about the time, place and manner of the occurrence is consistent with the time the FIR was lodged till the time they were examined by the trial court. This type of consistency is only possible in true eye witnesses otherwise they may be faulter here and there. The tendency of the interested witnesses is to scribe or attribute particular acts to the particular accused-persons but those witnesses have not indulged in that. They have faithfully stated that the victim was encircled by the group of accused persons and they inflicted injuries and the witnesses were unable to observe which particular injury was inflicted by whom and thus, they have not tried to state the facts falsely which could have been done by them as is usually the tendency of the inimical witnesses. We, therefore, agree with the learned lower court that the testimony of these witnesses is totally credible and reliable. The report of the incident was lodged promptly and the names of the witnesses were disclosed in that report. It is true that PW 2 Pema Ram and PW 3 Hanuta were examined on the next day by the Dy. S.P. but that hardly matters because when their names were disclosed in the FIR, the late examination of the witnesses on account of the fact that the Investigating Officer was busy in conducting the spot investigation and he went in search of the accused-persons does not affect the reability of witnesses. In this respect, the learned lower court has placed reliance on a decision of their Lordships of the Supreme Court in Ram Prasad v. State of UP AIR 1973 SC 2573) where in there was a delay of 25 days in recording the statement of an eye witness by the Police. In the FIR which was lodged within three hours of the occurrence, the name of the witness, was mentioned as an eye witness of the occurrence. It was held that in these circumstances, the delay in recording the police statement of the witness by the Investigating Officer would not justify rejection of his testimony. In this case, the FIR has been lodged within half an hour of the occurrence and in the FIR, the name of the witnesses were mentioned and as such, the late examination of the witnesses would not affect the reliability of these witnesses.
19. It was also submitted that PW 1 Chandra Singh has stated that fee left PW 2 Pemaram and PW 3 Hanuta to guard the dead body and when the police arrived at the place of the occurrence, they were present there PW 2 Pema Ram and PW 3 Hanuta have also stated that when the Police arrived the spot, they were near the dead body. However, PW 14 Inder Singh has stated that when he reached the place of the occurrence, they were not there. They arrived there after about 10 15 minutes of his arrival at the place of the occurrence. It is quite possible that PW 14 Inder Singh might not have observed their presence. Even the Motbir PW 10 Deva Ram has stated that the site plan and site inspection memo were prepared in the presence of PW 2 Pema Ram and PW 3 Hanuta and they were present near the dead body when the police arrived at the place of the occurrence. PW 14 Inder Singh has stated that PW 2 Pema Ram and PW 3 Hanuta were sent to the police station because he was busy in spot investigation and, therefore, he could not record their statements then and there. Tint was quite natural in the facts and circumstances of this case. PW 2 Pema Ram and PW 3 Hanuta have also stated that they were sent to the police station where they waited upto 10-11 p.m. but the S.H.O. did not arrive and so, they went to the station and there they slept PW 14 Inder Singh has stated that he informed Dy. S. P. at 11 p.m. that such an occurrence has taken place. PW 13 Khem Singh, Dy. S.P. then accompanied Indersingh in search of the accused and he came back at 1 a.m. but the accused persons could not be found and the SHO was again deputed to search the accused and, therefore, he could not record the statements of the witnesses. They were ultimately recorded by the Dy. S.P. on the next day. Thus the late examination of the witness does no affect the reliability of then testimony. Reliance was also placed on a decision of this Court in Som Singh v. The State of Rajasthan 184 Cr. LR (Raj) 181 wherein it has been held that if the alleged eye witnesses did not come forward before the Investigating Officer at the time of preparing the inquest report to Mate that they had seen the accused appellant with the gun in his hand at the time of the incident, the conduct on the part of the alleged eye witness is highly reprehensible and destroys their very claim to have seen the incident. In the case in hand, the eye witnesses have stated that they were very much present at the time of the occurrence and their names are mentioned in the FIR and the SHO had stated that he could not record their statements because he was busy otherwise and so, he sent them to the police station. However, their statements were recorded on the next day by the Dy. S.P. Thus, this decision has no bearing on the facts and circumstances of the present case.
20. An ancillary argument advanced in this respect was that the record of the investigation prepared by the police is tainted. It was submitted that these witnesses who allege themselves as eye witnesses were not examined immediately and the FIR was sent late to the court. We have already dealt with the submission regarding the late sending of the FIR to the court and we have just dealt with the fact that non-examination of these witnesses at the spot dots not affect their reliability and, therefore, the decision of their Lordships of the Supreme Court in Baladin v. State of UP. has no application to the facts of the present case. We do not feel that she record of the police prepared in this respect is tainted in any manner.
21. Learned Counsel appearing for the accused Jagannath has submitted that one of the barrels of the gun recovered at the instance of accused Jagannath on his information was found loaded. He has submitted that according to the case of the prosecution, one shot was fired by accused Jagannath on seeing Nathu and the other shot was fired by him in his stomach then how this gun was found loaded in one barrel. It was further submitted that PW 4 Girdhari Singh has stated that accused Jagannath came to the Dhani of Ghasi armed with a gun and if that was so, then how the gun was found thrown in Pratapsagar situated in the town of Nagaur. All these facts are not very difficult to explain and on account of these facts, no adverse inference is called for against the prosecution. The incident took place on 10-7-74 where as the accused Jagannath was arrested on 22-8-74 i.e. one month and 12 days after the incident and so, how the gun was used by him in the intervening period and when was it thrown in Pratapsagar are facts which are better known to accused Jagannath and none else, it is clear from the testimony of PW 14 Inder Singh that the gun was recovered from Pratapsagar on the information and at the instance of accused Jagannath and that gun was found loaded in the barrel. If any false recovery was to be shown against the accused, there was no necessity for showing it loaded in one barrel. It is true that this gun was not sent for ballistic examination and therefore, in cannot be held that this gun was used in this very incident. In this respect, reliance is place 1 on Som Singh's case(supra).
22. It was next contended that the pellets found inside the body were not sent for expert's opinion whether they could be fired from this gun It is clear from the testimony of the Doctor that deceased Nathu received one gun shot injury. Two pellets were found inside the dead body at the time of the post mortem examination and they were seized and sealed. It has come in she evidence of the witnesses that accused Jagannath was armed with a gun and was he who put the barrel of the gun on the stomach of the deceased and then fired. Thus, this much is clear that the gun shot injury received by the deceased was the result of the gun shot fired by accused Jagannath, and hence it is fully proved that the gun was fired by Jagannath which caused the gun shot injury to deceased Nathu. It is not a case where the medical testimony is at variance to the testimony of the eye witnesses and, therefore, the decision of this Court in Kalia v. State of Rajasthan (1975 RLW 152) has no application to the facts and circumstances of this case.
23. It was also argued that when Nathu jumped the ditch and fell down, he must have received certain abrasions and bruises. Their absence categorically shows that the eye witnesses are not reliable. It has not been put in the cross-examination of the witnesses that the land was hard stony or sandy and so, it cannot be said that the injured must have received some abrasions and bruises and as such the absence of abrasions and bruises is no ground to discredit the testing of the witnesses.
24. It was next submitted that the accused-persons suspected that even PW 2 Pema Ram and PW 3 Hanuta have taken part in the murder of Bhura Ram and when they were also present there at the place of the occurrence then how the accused-persons have not availed them. We have already held above that the accused persons suspected that Nathu was king-pin in the matter and Bhura Ram has been killed on account of the suspicion that he has raped the wife of Nathu, PW 2 Pema Ram and PW 3 Hanuta are only alleged to as have supported Nathu. It is, therefore, clear that the accused persons wanted to kill Nathu. Their entire wrath fell on Nathu and this is why they inflicted severe blows to him and caused such grave injuries in such large number to him. When they saw that Nathu has been killed, they left the place of the occurrence. It does not mean that as they have not availed Hanuta and Puna on that day the testimony of these witnesses becomes unreliable in any way.
25. It was also argued that the place from where the witnesses have seen the occurrence has not been pointed out in the site plan. Actually pointing out of that place on the basis of the statements given by the eye witnesses is hit by Section 161, Cr. PC. The very fact that Dhani of Nayakas was shown in this site plan which otherwise has no connection with the place of the occurrence clearly points out that it was shown only to point out the distance between the place of the occurrence and the Dhani of Nayakas so that the court may be able to assess the evidence of the witnesses whether they could see the place of the occurrence or not from that place. We, therefore, found no force in this argument.
26. It was lastly argued that the occurrence took place all of a sudden. No exhortation was given & therefore, it cannot be held the accused-appellants formed any common object to kill Nathu. In this respect, reliance was placed on State of U.P. v. Jashoda Nandan Gupta (1973 CAR 155 SC), and Maina Singh v. State of Rajasthan (1976 SCC (Cr.) 332) Maina Singh's case (supra) has no application to the facts and circumstances of the present case. In that case, five accused were facing trial and four of them have been acquitted and, therefore, the accused-appellant could not have been convicted under Section 302/34 IPC. In the present case, all the accused have been convicted and therefore, this ruling has no application.
27. In State of U.P.'s case (supra), the meeting of the accused-persons was unexpected and the altercation that took place between the parties was sudden and in the heat of the moment, certain assaults were given but that is not the case here. Here, it appears that the accused persons knew that Nathu has been called for interrogation by the Investigating Officer in the murder case of Bhura Ram and so, they were in search of Nathu. They were armed with Pharsis, swords, gun and Kulharis. They came there in a group and availed the deceased as soon as they spotted him. Here, even no verbal altercation took place between the parties. As soon as the accused persons saw Nathu, they fired at him and as soon as the fell down while jumping the ditch, he was conjointly availed of by them and that shows their common object and thus, this ruling has no application to the facts and circumstances of this case. In this case, the use of the weapons by the accused-persons clearly indicated their intention and they could have very well known that what would be the effect of this assault. It is not the case of inflicting 1-2 injuries but 18 injuries have been inflicted with great force which is clear from the dimensions of the injuries as also the parts of the body availed. So much so, the accused persons wanted to ensure that Nathu may not remain alive and so, inspite of the fact that they cut his neck, which was by it self sufficient to cause his death, they fired from the gun to ensure his death. The weapons with which they were armed, their conjointly going to the place of the occurrence and their concerted attack on the victim clearly establish their common object to kill Nathu. Reliance in this connection may be placed on V.B. Koli v. State of Maharashtra (1983 SCC (Cr.) 219) where in the accused-persons had apparently split themselves into smaller groups so that they might not attract attention. There was no appreciable interval of time between the various stages of the attack It was a continuous process, and even if there was any interval of time and the accused persons had come to the scene of offence separately and without any prior arrangement, there was a point of time in which all of them took part in the assault simultaneously and they also took away the body together. On the facts of the case, it was held that they had become members of an unlawful assembly when they joined together to assault the deceased and the common object could and did develop instantaneously. In the case in hand it appears that the accused persons have formed the common object and came in search of the victims and as soon as they saw Nathu, they availed him and, therefore, in our opinion, the learned lower court was perfectly justified in applying the provisions of Sections 148 and 149 IPC to the facts of this case Nothing was said about the plea of alibi of the other accused-persons but it was said that on the day, accused Ramkaran was at Anoopgarh and this fact is proved by the testimony of DW 1 Mahendra Singh and DW 2 Satayan Singh. We have carefully, gone through these statements and we are of the opinion that the teamed lower court was perfectly justified in holding that such witnesses can be procured and created at any moment. Even the alleged Khata was not found in the regularly kept account books of DW 1 Mahendrasingh Khata on a piece of paper can be prepared at any time to save the accused from the charge of murder. If the amount was due for some quite some time, to recover that amount. Mahendra Singh could have written a letter to the accused Ram Karan but not a single letter has been written to him and how could he send a wire to Ramkaran when he had no knowledge about the fact as to whether there exists any Telegraph Office or Post Office in the village of Ramkaran or not. It has also not been disclosed that for that period this amount was due. DW 1 Mahendra Singh is an agriculturist living in village 56 G.P. in Tehsil Anoopgarh and so, how could a man living in the village Bugarda in district Nagore would go to Anoopgarh to obtain the loan of Rs. 10,000/-. Moreover, Mahendra Singh has stated that he obtained this amount of Rs. 10,000/- from one Banwarilal and then gave it to Ram Karan. What were such compelling reasons with him to have obtained a loan from Banwari Lal to advance it to Ramkaran. He even does not know on which date and in which month the loan was advanced. Thus, the entire evidence about this Khata appeared to be unreliable Such evidence can be created at any moment. We therefore agree with the learned lower court that the testimony of alibi put forth by accused Ram Karan is not at all reliable.
28. No other argument was advanced by the learned Counsel appearing for the accused-appellants in these appeals.
29. In the result, we find no force in these appeals and they are, hereby, dismissed. The accused-appellants are on bail. Their bail bonds are hereby cancelled. The learned Sessions Judge, Merta is directed to effect that arrest of the accused-appellants to undergo the sentence imposed against them by the learned Addl. Sessions Judge, Nagore vide his judgment dated 25-2-1976.