Rajasthan High Court - Jaipur
Saleem And Ors. vs State Of Rajasthan on 27 July, 1998
Equivalent citations: 1999CRILJ1419, 1997(3)WLC364
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. This appeal is preferred by the accused appellants against the judgment dated 14-1-1993 passed by the learned Addl. Sessions Judge, Chittorgarh in Sessions Case No. 12/91, whereby he convicted and sentenced them under Section 302 read with Section 34, I.P.C. with imprisonment for life and a fine of Rs. 200/- in default of payment of fine to further undergo two months rigorous imprisonment, under Section 326 read with Section 34, I.P.C. each of the accused appellant is sentenced with three years rigorous imprisonment and fine of Rs. 100/ -, in default of payment whereof to further undergo one month's rigorous imprisonment. All the accused appellants are also convicted and sentenced under Section 324 read with Section 34, I.P.C. for one year's rigorous imprisonment. Accused appellants Saleem and Chand Khan are convicted under Section 323 read with Section 34, I.P.C. whereas accused appellant Ikhlaq is convicted for offence under Section 323, I.P.C. simpliciter and all of them are sentenced for 3 months rigorous imprisonment. All the aforesaid sentences are ordered by the learned Addl. Sessions Judge to run concurrently.
2. From the perusal of the FIR, it is revealed that on 19-10-1990 wife of first informant PW-4 Babu Mohammed, namely, Ruksana (PW-7) had gone to fetch water from well, where accused appellant Saleem came and made an attempt to outrage her modesty. When accused Saleem made an attempt to outrage her modesty, she ran from there towards her home and informed her mother-in-law Fatima(PW-6). On 21-10-1990 the mother of the first informant Mst. Fatima made complaint to the accused appellant Chand Khan relating to aforesaid misdeed of his son accused appellant Saleem, making an attempt to outrage the modesty of her daughter-in-law Rukhsana at the well. It is alleged that thereupon accused appellant Chand Khan went to his house and came with other accused appellants, namely, Saleem and Ikhlaq along with his wife Smt. Mumtaz at the field of first informant where he, his father Abdul Rehman (PW-5), his deceased brother Qadir and his mother Fatima (PW-6) and other witnesses were uprooting groundnut crop. Chand Khan was armed with axe, Saleem with knife and accused appellant Ikhlaq was armed with lathi. All of the accused appellants assaulted deceased Qadir, his father Abdul Rehman (PW-5) his mother Fatima (PW-6) and him. It is alleged in the FIR that Smt. Mumtaz was present on the scene of occurrence but he did not see her doing any mischief. In the FIR Chandi Bai (PW-12), Raj Bai (PW-2), Bheru Dass (PW-9), Gowardhan Puri (PW-10) and Babu Puri (PW-11) were also cited as witnesses, who had seen the occurrence and helped them to sit in bullock-cart. The first informant and injured persons came in their village by bullock-cart, from where brother of the first informant Saddiq (PW-15) arranged matador, in which all of them proceeded to Chittorgarh hospital. In the way, brother of the first informant Qadir expired.
3. In support of the prosecution story, the prosecution has examined PW-1 to PW-30 and also produced documents Exs P1 to Ex. P33.
4. The learned Additional Sessions Judge framed charges against accused appellants, who denied those charges and claimed trial. In their statements under Section 313, Cr. P.C. all the accused appellants pleaded that they have been falsely implicated in the case. They claimed themselves to be innocent.
5. We have heard learned counsel for the appellants Shri Moinuddin and learned Public Prosecutor at length. We have also gone through the evidence and judgment given by the learned Addl. Sessions Judge, with the assistance of the learned counsel for the parties.
6. It is contended by the learned counsel for the appellants Shri Moinuddin that the learned Addl. Sessions Judge had not evaluated correctly the evidence on record. According to the learned counsel for the appellants, injured witnesses examined in the case are near relations of the deceased who have supported the prosecution story whereas independent witnesses, namely, Gowardhan Puri (PW-10), Babupuri (PW-11) and Bheron (PW-19) have been declared hostile by the prosecution.
7. The aforesaid contention raised by the learned counsel for the appellants is strenuously opposed by the learned Public Prosecutor. It is urged by the learned Public Prosecutor that the fact that the injured witnesses are related to the deceased victim cannot reduce the testimonial value of their depositions, having regard to the fact that their presence at the scene of occurrence was natural.
8. We have given our anxious and thoughtful consideration to the rival contentions raised at the Bar. We are of the opinion that in the present case, prosecution has successfully established the presence of these injured eye-witnesses beyond pale of doubt, by reason of the fact that they themselves had sustained injuries attributable to the arms with which the accused appellants were armed on the spot at the time of 'marpeet'. It is held that since these injured eye witnesses, namely, Babu Mohammed (PW-4), Abdul Rehman (PW-5) and Smt. Fatima (PW-6) are closely related to the deceased, therefore, it is not expected from them that they will falsely implicate the innocent accused appellants, who belong to their pedigree and will allow the real culprit(s) to escape punishment in an occurrence which took place in broad day-light.
9. A close scrutiny of the injury report Ex. P. 8 leads towards an irresistible conclusion that Babu Mohammed (PW-4) sustained two injuries one by blunt weapon and another by a sharp edged weapon. Similarly, from injury report Ex. P16 it is revealed that Abdul Rehman (PW-5) sustained 3 injuries - all of them were caused by sharp edged weapon. Injury No. 1 caused to him was found by the Medical Jurist to be grievous. Similarly, from injury report Ex. P17 of Smt. Fatima (PW-6), it is revealed that she received one injury by sharp edged weapon. These injury reports of PW-4 Babu Mohammed (Ex. P8), PW-5 Abdul Rehman (Ex. P16) and PW-6- Smt. Fatima (Ex. P17), are duly proved by Medical Jurist Dr. Subhash Jain (PW-21). We found that except minor discrepancies of inconsequential nature, regarding who caused which injury to whom, at which part of the body, by which weapon; there are no contradictions, going to the root of the case, in the sworn testimony of these injured witnesses. The sworn testimony of these injured witnesses are corroborated from other eye witnesses, namely, PW-7 Rukhsana, PW-8 -Lal, PW-12- Chandi Bai, PW-13- Raju Bai, PW-14 Amna and PW-29 Mehroon Bai.
10. It is urged by the learned counsel for the appellants Shri Moinuddin that these witnesses named above are relative of deceased and as such, they are interested and partisan witnesses, therefore, their sworn testimony is not reliable. Suffice is to say in this regard that evidence of interested or partisan witness or witnesses, as the case may be, should be subjected to careful scrutiny before accepting it. If on such scrutiny the sworn testimony of interested witness is found to be reliable or inherently probable, it may by itself would be sufficient in the facts and circumstances of the particular case to base a conviction. In such cases, before evaluating the sworn testimony of such interested or partisan witnesses, presence of each witness must be ascertained with caution.
11. In the present case, it is apparent from the perusal of site plan (Ex. P7) that the fields of the accused appellants and deceased are adjacent to each other. It is evident from perusal of Ex. P7-site plan and description note prepared by the Investigating Officer that groundnut crop sown in the field of accused appellants had already been uprooted by them whereas ground-not crop of the field of the deceased was uprooted only up to half extent and remaining half of it was in process of being uprooted when occurrence took place. Investigating Officer at the time of preparation of site plan Ex. P7 found half of ground not crop belonging to deceased Qadir was standing in his field. The field of Chand Bai is also adjacent to the field of the accused appellants. It is evident from perusal of the site plan Ex. P7 that groundnut crop was also sown in the plot of Chand Bai and its uprooting was in progress when occurrence took place. As the uprooting of groundnut crop in the field of Chand Bai which is adjacent to field of accused appellants, was in progress at the time of occurrence, therefore, presence of eye-witness Chand Bai (PW-12) and presence of her sister Raju Bai (PW-13) is beyond question.
12. It is borne out from the statement of Investigating Officer and site plan Ex. P7 that the uprooting of groundnut crop in the field of deceased was in progress at the time of 'marpeet,' therefore, the presence of Lali (PW-8) and Rukhsana (PW-7) who belong to the family of deceased is also beyond all pale of doubt at the place of occurrence. Remaining eye witnesses examined by the prosecution stated that they were working in the field of Chandi Bai, therefore, their presence is also established by the prosecution beyond all shadow of doubt.
13. The prosecution has also examined Sajjan Singh (PW-20) - Patwari of the village, who was present at the time of preparation of site plan (Ex. P7) by the Investigating Officer. He is also examined by the prosecution agency before the learned Addl. Sessions Judge. He has categorically stated on oath that the field of deceased where he along with his other family members was uprooting groundnut crop is part and parcel of Plot No. 23, in which he is co-sharer along with Mst. Chandi- widow of Akbar Khan and accused appellants. It is categorically stated on oath by Sajjan Singh (PW-20) that on the spot all the co-sharers of Plot No. 23 had partitioned their share according to their pedigree. From the statement of Sajjan Singh (PW-20), it is clear that the accused appellants, the deceased and Mst. Chandi Bai (PW-2) and Raju Bai (PW-3) belong to the same pedigree. All these eye witnesses examined by the prosecution are related to each other except Gowardhan Puri (PW-10), Babu Puri (PW-11) and Bheron (PW-9) who have been declared hostile. We see no reason as to why these eye witnesses who are supporting prosecution version shall mischievously depose against the accused appellants, who arc related with them.
14. The learned counsel for the appellants Shri Moinuddin has pointed out some contradictions in the statements of aforesaid eye wit-nesses. These contradictions were also brought to the notice of learned trial Court by the learned counsel for the appellants engaged by them at trial stage during the course of his argument. The learned trial Court has rejected the plea raised before it regarding these contradictions after giving cogent and convincing reasons. We are at one with the reasons given by the learned Addl. Sessions Judge, ignoring the minor contradictions of inconsequential nature in the statements of aforesaid eye witnesses, produced by the prosecution.
15. We are of the opinion that no criminal case is free from shortcomings or discrepancies. The main thing to be seen in each criminal case by a criminal Court of judicial conscience would be that the contradictions or discrepancies brought to its notice must prick its judicial conscience. In every criminal case where such shortcomings or discrepancies are brought to the notice of a Court exercising criminal jurisdiction by defence, it must pose a question to itself; Does such shortcoming or discrepancy go to the root of the case or pertains to an inconsequential aspect of the case having no bearing on the merits of the case? In the former case, the defence may be justified in claiming advantage of the discrepancies and the shortcomings in the evidence adduced by the prosecution but in the latter case, no such benefit can be claimed by the defence and cannot be allowed by a criminal Court.
16. In the present case the learned trial Court has committed no error in denying advantage claimed by the defence showing inconsequential contradictions in the statements of eye witnesses named above. The learned trial Court has given cogent and convincing reasons in ignoring contradictions, pointed out before it by defence with which we are in full agreement.
17. We have examined the post mortem report (Ex. P1 8) prepared by Dr. Subhash Jain (PW-21) available on record. From the perusal of Ex. P1 8, it is established that deceased Qadir received one stab wound 1" x 0.5" x 2.5" on left side of abdomen, 1.5" below costal margin and 2" away from midline with clean cut margin. Aforesaid Ex. P18 autopsy report further reveals that deceased sustained on his person an incised wound 1" x0.25" x 1 / 10", on left side on neck, 3" below ear, oblique in direction, running from above downward and outward and, one abrasion- 1" x 1/10" on left side of chest, at anterior auxiliary line, 4" below and away from nipple. According to the Medical Jurist PW-21 Dr. Subhash Jain the cause of death of Quadir Mohammed was shock caused by profuse internal and external haemorrhage, caused by stab wound No. 1 pertaining to stomach.
18. The prosecution had examined Medical Jurist Dr. Subhash Jain (PW-21) who proved these three ante-mortem injuries on the person of deceased Qadir Mohammed, The learned counsel for the appellants had given much emphasis on the statement of PW-21 - Dr. Subhash Jain, who opined during the course of his statement on oath before the learned Addl. Sessions Judge that injury No. 1 was not sufficient in the ordinary course of nature to cause death of qadir Mohammed deceased.
19. The aforesaid statement of Medical Jurist PW-21 Dr. Subhas Jain is only an expert opinion and its testimonial value is subject to scrutiny of his Court, as envisaged under Section 45 read with Section 51 of the Indian Evidence Act. Section 51 of the Indian Evidence Act clearly provides that whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant which means an expert opinion is merely an inference which he draws from certain facts and its testimonial value depends on the grounds on which his opinion is based. In the present case, the Medical Jurist PW-21 was required to disclose ground which introduced him to come to his conclusion that injury No. 1 caused to deceased was not sufficient in ordinary course of nature to cause death of deceased although stab wound was caused on vital part of the body of deceased by knife. In absence any of reason given by PW-21 Medical Jurist Dr. Subhash Jain in support of his aforesaid opinion, it is not acceptable to us and it is held to be inconclusive.
20. We have closely examined Ex. P18, post mortem report prepared by PW-21. In our considered opinion, if a stabbed wound of the size noted by the Medical Jurist in post mortem report Ex. P1 8 is caused on the left side of abdomen, which is a vital part of human body then it must be held to be sufficient in ordinary course of nature to cause death of the victim in the present case. An opinion contrary to it given by the Medical Jurist (PW-21) is not acceptable to us.
21. There is yet another reason to arrive at the aforesaid conclusion. It is to be noticed that Clauses (1), (2), (3) and (4) of Section 300, I.P.C. defines culpable homicide amounting to murder. In our opinion, an offence will amount to murder if any one of condition enumerated under Section 300, I.P.C. is satisfied. All the four conditions precedent, enumerated under Section 300, I.P.C. are not necessary to co-exist for an offence of murder. It would be sufficient for the prosecution to establish any one of the condition enumerated under Section 300, I.P.C. against an offender or offenders, as the case may be, for punishing him or them for an offence of murder. In considering whether the offence is murder or culpable homicide not amounting to murder, the manner of causing injuries to the victim by accused persons as deposed by the prosecution witnesses, nature of injuries caused to the victim, part of the body where accused person(s) caused injuries to the victim, the weapon(s) used in the commission of crime conduct of the offender(s) charged with an offence of murder, are to be taken into account, not only expert opinion of Medical Jurist that too bereft of reason without disclosing ground on basis of which he was induced to give his opinion that injury No. 1 was not sufficient in ordinary course of nature to cause death of deceased Qadir Mohammed.
22. In the present case, number of injuries caused by the accused appellants by sharp edged weapons to the deceased as well as injured witnesses PW-4, PW-5 and PW-6 indicate their intention to commit murder. The acts of the accused appellants in the present case fall within the meaning of causing homicidal death amounting to murder of deceased Qadir Mohammed within the meaning of Clause (3) of Section 300, I.P.C. and an argument contrary to it is not acceptable. From the various acts of the accused appellants deposed by eye-witnesses in detail after coming prepared from their home armed with deadly sharp edged weapons, it is easily deducible that all the accused persons knew that their act of causing injuries to the deceased and other eye witnesses with deadly sharp edged weapons is so imminently dangerous that it must in all probability may cause death of victims. The accused appellants have committed assaults on the victim Qadir, intentionally, without any excuse. The findings of guilt recorded by the learned trial Court against accused appellants is eminently just and proper and as such, it deserves to be affirmed.
23. It is next contended by the learned counsel for the appellants Shri Moinuddin that the injured and, deceased went to field of accused appellant Chand Khan and all the accused appellants assaulted them in exercise of their right of private defence of person and property. The aforesaid argument raised by the learned counsel for the appellants is devoid of merit and substance. A close scrutiny of the evidence on record disclose that accused appellants have not received a single injury on their person, therefore, the question of right of private defence of their persons does not arise. Similarly, it is evident from Ex. P7 site plan that the crop of groundnut sown by accused appellants in their field was already uprooted, therefore, the question of right of private defence of their property also docs not arise in the present case. Thus, the argument rasied by the learned counsel regarding right of private defence to person and property, has been raised merely to be rejected and therefore, it is hereby rejected.
24. Lastly it is contended by the learned counsel for the appellants that there was delay in lodging of FIR in the present case. According to Shri Moinuddin, there was 3 days delay in lodging the FIR at Police Station Sambhupura. Suffice is to say in this regard that we are not satisfied with the aforesaid argument inasmuch as earlier the report was lodged on the date of incident i.e. 21-10-1990 at 11:30 a.m. at Police Station Bhadesar. The Investigating Officer (PW-30) Man Singh has clearly stated that after lodging of the FIR investigation commenced at Police Station Bhadesar. At the time of preparation of site plan, the statement of Patwari (PW-20) Sajjan Singh was recorded by the Investigating Officer and from his statement, it came to his knowledge that incident has taken place within the territorial jurisdiction of Police Station Sambhupura and not within the territorial jurisdiction of Bhadesar. Therefore, with the approval of Superintendent of Police, Chittorgarh, the matter was transmitted to Police Station- Sambhupura for investigation. PW-30 Man Singh has given complete explanation about 3 days delay in lodging FIR at Sambhupura. Thus, there is no delay of 3 days in lodging the FIR, as argued by the learned counsel for the appellants. We are satisfied that the FIR was lodged by PW-4 Babu Mohammed with promptitude and an argument contrary to it, is devoid of substance and merit, hence, it is repelled.
The upshot of the aforesaid discussion is that the present appeal lacks merit and it is hereby dismissed. The findings of guilt recorded and sentence awarded to the accused appellants by the learned Addl. Sessions Judge, Chittorgarh by his impugned judgment dated 14-1 -1993 is hereby affirmed. The accused appellant Saleem is in jail, therefore, we order him to serve out his remaining sentences awarded to him by the learned Addl. Sessions Judge. Accused appellants Chand Khan and Ikhlaq are on bail. Their bail bonds are hereby cancelled. They are directed to surrender before trial judge to serve out their remaining part of sentences, failing which trial Court shall issue warrant of arrest against them.