Rajasthan High Court - Jaipur
Ishwar Lal @ Mukesh @ Pappu vs State Of Rajasthan on 9 March, 2004
Equivalent citations: RLW2004(3)RAJ2024, 2004(3)WLC257
JUDGMENT F.C. Bansal, J.
1. The instant appeal is directed by the appellant Inshawr Lal @ Mukesh @ Pappu against the judgment dated November 16, 1998, whereby learned Additional sessions Judge, No. 1, Jaipur City convicted the appellant Under Section. 302 read with 34 IPC an sentenced him to suffer imprisonment for life and fine of Rs. 5000/- in default to further suffer simple imprisonment for six months.
2. Briefly stated, the prosecution case is that on August 2, 1997 at 2.45 AM Om Prakash PW 12 (Home guard) S/o Jeevan Ram by caste Raigar aged 18 years resident of Nindad, Police Station Harmada (District Jaipur) submitted a written report (Ex.P.14) to SHO PS Shastri Nagar, Jaipur City at the place of incident wherein it was inter-alia stated that today in the night he and Ram Ratan (Home Guard) were on their patrolling duty. At about 1.15 A.M. they were coming from Mochion Ki Chhabil to Rashtrapati Park. When they reached near the gate of the said park they saw that three persons were beating a person at the circle situated at some distance. When they reached on the spot two assailants ran away and they caught hold of the third assailant named Ishwar lal. On being asked the person who was being beaten by the assailants said that his name is Moti Ram. Thereafter he took Ishwar Lal to the police station. On they way, on being asked Ishwar Lal told that the name of two assailants who had fled away was Suresh and Salim. It was also stated that injured Moti Ram was taken to hospital by SHO in police jeep to SMS Hospital, Jaipur, he also accompanied the SHO. Moti Ram succumbed to his injuries on the way. He had sustained four injuries on his chest which were caused by sharp weapon. On the basis of Ex. P14 a case Under Section. 302 read with 34 IPC was registered by SHO, Shastri Nagar at 3.00 AM and investigation commenced. The formal FIR is Ex.P.21. The investigating Officer prepared the inquest report (Ex.P3) of the dead body of Moti Ram. Site plan (Ex.P10) was also prepared. Blood smeared soil and control soil was seized and sealed vide seizure memo Ex .P11. Two scooters were also seized from the spot vide seizure memos Ex.P12 and Ex.P13. Kurta, pant, baniyan and chaddi which the deceased was wearing at the time of the incident were seized and sealed vide seizure memo Ex.P.1. Post mortem examination was conducted by Dr. P.C. Vyas (PW.10) Medical Jurist, SMS Hospital Jaipur at 10.000 AM on 2.8.97 and he prepared post mortem report Ex.P.4. The appellant was arrested at 12.15 PM on the same day vide arrest memo Ex.P16. Accused Suresh Singh and Salim were also arrested vide Ex.P. 17 and Ex.P 18. On the disclosure statement of Ishwar Lal and at his instance Katar was recovered from the place situated behind the wooden cabin. It was sealed and the investigating officer prepared recovery memo Ex.P.20. statements of the witnesses were recorded Under Section. 161 Cr.P.C. On completion of investigation charge sheet was laid against the appellant Ishwar lal, Suresh Singh and Salim in the Court of Judicial Magistrate No. 7 Jaipur City, who committed the case for trial to the Court of learned Sessions Judge, Jaipur City. In due course the case was received by learned Additional sessions Judge, No. 1, Jaipur City for trial.
3. Learned Additional Sessions Judge framed charge Under Section. 302, in the alternate Under Section. 302/34 IPC against all the accused who pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution examined as many as 17 witnesses. In their statements Under Section. 313 Cr.P.C. accused persons pleaded innocence and false implications. It was also stated by appellant Ishwar Lal that he was brought by the police from his house at about 1.00 AM on the pretext that he was to be interrogated in regard to the verbal altercations which took place in the evening on 1.8.1997, and thereafter falsely implicated in the present case. In defence Mithun (DW1) was examined.
5. Learned Additional Sessions Judge on hearing final submissions, convicted arid sentenced the appellant as indicated hereinabove. The remaining accused were acquitted of the charge.
6. We have heard learned counsel for the appellant, learned Public Prosecutor and have also gone through the material on record.
7. It is not in dispute that deceased Moti Ram met with the homicidal death. PW. 10 Dr. P.C. Vyas Medical Jurist, SMS Hospital Jaipur deposed that at 10.00 AM on 2.8.97 he conducted post-mortem examination on the dead body of Moti Ram s/o Rajhumal aged 48 years by caste Sindhi r/o Shastri Nagar, Jaipur and found the following injuries:
(i) incised stab wound 3.5 x 1.5 cm x chest cavity deep with dried clotted blood present on right side front of chest middle 1/3 vertically and obliquely placed in 5th intercostal space, near right border of sternum, 9 cm medial to right nipple. Would is wedge shaped with broader end of the would on lower side. Margins of the wound are clean cut, regular and well defined, but the lower broader end of the wound is irregular and illdefined. On further dissection, would track going downwards and slightly medially after piercing intercostal muscles. There are fractures (cutting) of right 5th and 6th ribs anteriorly near costo-chondral junction. Wound track extending further downwards and piercing right side pericardium and reaching to right atrium and piecing it through and through. Pericardial cavity contains about 500 cc partially clotted blood and right side chest cavity contains about 300 CC blood, would track further going downwards and medially piercing right side diaphragm and reaching to right lobe of lower superiorly near its junction with left lobe, where an incised would of size 3 x 1/2 x 2 cm present. About 900 cc blood present in peritoneal cavity.
(ii) incised would 1/2 x 1/4 cm x sub cutaneous tissue deep with fresh clotted blood, medial to injury No. 1. Margins of the wound are cleancut, regular and well defined.
8. Dr. Vyas further stated that all the injuries were ante mortem in nature and caused by sharp weapon like knife and katar. Injuries were sufficient in the ordinary course of nature to cause death. In his opinion the cause of death was Syncope as a result of ante mortem injuries to hurt diaphragm and liver with excessive haemorrhage. He prepared the post mortem report (Ex.P.4).
9. Learned counsel for the appellant did not challenge the veracity of Dr. Vyas. We see no grounds to disbelieve his testimony. Therefore it has been established beyond reasonable doubt by the prosecution that deceased Moti Ram sustained the aforesaid injuries caused by sharp weapon in the alleged incident which resulted in his death.
10. Now we come to the ocular testimony of the prosecution. As per the statements of PW 11 Ram Ratan and PW 12 Om Prakash (Home Guard personnels), on the fateful night, when they were on patrolling near Rashtrapati park they saw the appellant and two other assailants causing injuries with knife on the person of the deceased. On seeing them two assailants ray away from the spot. They reached at the place .of incident and caught the appellant told his name. Satya Narain (PW-3) also came on the spot. Ram Ratan and Om Prakash further stated that thereafter the appellant was taken to the police station by PW-12 Om Prakash and PW 11 Ram Ratan remained with the deceased on the spot. Om Prakash also stated that the appellant told him that the assailants who had ran away were Suresh and Salim. He reported the matter to Bajrang Singh (PW 7) Duty Officer at Police Station, Shastri Nagar, whereupon Bajrang Singh came with him in police jeep at the place of occurrence. Thereafter the deceased was first taken to Kanwatia hospital where first aid was given. From Kanwatia hospital the deceased was taken to SMS Hospital but on the way he succumbed to his injuries. It was further stated by Om Prakash that from SMS Hospital he returned to the place of incident where he submitted written report (Ex.P.14) to SHO, Police Station, Shastri Nagar. PW 3 Satya Narain Jain stated in his deposition that on the fateful night at about 1.30 AM when he came out of his house to urinate he heard outcry of one person and saw 2-3 persons running. Satya Narain further stated that two police constables came there and caught hold of one of the assailants who was taken to the police station by one of the constables. Satya narain also stated that the injured told his name and asked for taking him to the hospital. After 10-15 munites the injured became unconscious.
11. PW-6 Mahipal Singh L.C. (Literate Constable) stated that on 2.8.1997 he was posted at police station Shastri Nagar. At around 1.30 AM Om Prakash came at the police station alongwith the appellant Ishwar Lal and informed that one person was lying at the circle of Bajoria School smeared with blood, it was also informed by Om Prakash that the injured had sustained injuries with knife. PW-6 Mahipal Singh further stated that on being informed by Om Prakash about the incident bajrang Singh in-charge Police Station, Dull Chand (PW 14) and he reached on the spot where they found Moti Lal lying who asked them to take him to the hospital. Moti Lal @ Moti Ram was taken to the Kanwatia Hospital where he was declared dead by the doctors. As per the statement of Mahipal Singh when Om Prakash reached at the police station PW 13 Chaggan Singh SHO Police Station, Shastri Nagar was not there. He was called thereafter by Bajrang Singh.
12. Learned counsel for the appellant contended that the testimony of Ram Ratan (PW 11), Om Prakash (PW-12), Satya Narain (PW-3) and Mahipal Singh (PW-6) is not credible and trustworthy as it was not corroborated by Bajrang Singh (PW-7) and Dulichand (PW-14). As per the contention of learned counsel the appellant was not caught red-handed on the spot by Om Prakash and Ram Ratan but he was brought by police to the police station from his house on the pretext that he was to be interrogated in regard to the verbal altercations which took place in the evening on 1.8.1997. It was submitted by the learned counsel appearing for the appellant that as per the statement of Chaggan Singh, SHO, written report (Ex.P-14) was submitted to him by Om Prakash at the place of incident. It is also clear from the statement of om Prakash that the written report was submitted on return from SMS Hospital. The appellant was arrested at 12.15 PM on. 2.8.97. these facts prove that the appellant was not caught red-handed by Om Prakash and Ram Ratan on the scene but he was brought by the police from his house on suspicion because of verbal altercations allegedly taken place in the evening on 1.8.97 between the assailants and the deceased, therefore, the appeal of the appellant be allowed. Learned Public Prosecutor has supported the impugned judgment.
13. We have given our thoughtful consideration to the aforesaid submissions made by learned counsel.
14. PW-7 Bajrang Singh, Sub Inspector was on duty when Om Prakash came at the police station. Shastri Nagar from the place of incident. He did not state that the appellant was brought to the police station by Om Prakash. PW-14 Duli Chand was the driver of the police jeep. He categorically stated in his deposition that Om Prakash came at the police station and informed about the incident, whereupon Bajrang Singh accompanied by him and Om Prakash reached the spot by police jeep and found Moti Ram in injured condition. Ram Ratan was also standing there. It was further stated by Duli Chand that thereafter they brought the appellant. In his cross-examination Duly Chand admitted that Om Prakash alone came at the police station. It is also clear from his statement that they did not find the appellant on the spot. It was stated by Duli Chand that from the place of incident Bajrang Singh went and brought the appellant with him. In view of the testimony of Bajrang Singh and Duli Chand who were not declared hostile by the prosecution, we are of the considered view that the appellant was neither seen by Om Prakash, Ram Ratan and Satya Narain causing injuries to the deceased nor caught red- handed by Om Prakash and Ram Ratan but he was brought to the police station from his house.
15. In his examination-in-chief Chaggan Singh did not state that when Om Prakash came at the police station he was accompanied by the appellant. Though in his cross-examination he stated that the appellant was brought to the police station by Om Prakash. In his cross-examination Chaggan Singh deposed that the verbal information given by Om Prakash at the police station was vague, therefore, he did not register the case and went to the place of occurrence for it's verification. PW6 Mahipal Singh, Constable, did not state that when Om Prakash came at the police station alongwith the appellant and informed about the incident he (Om Prakash) also informed that Ishwar Lal was one of the assailants who had caused injuries to the person lying at the place of incident and he was caught by them on the spot or when he was running from the scene. The appellant was arrested at 12.15 PM on 2.8.1997 vide Arrest Memo (Ex.P16). These facts also prove that the testimony of Om Prakash, Ram Rafan, Satya Narain and Mahipal Singh qua the appellant is not reliable and does not inspire confidence in our mind.
16. So far as the recovery of 'katar' on the disclosure statement of the appellant, is concerned learned Additional Sessions Judge has not held it proved and in his opinion also the recovery of 'katar' does not connect the appellant with the alleged crime.
17. Thus, we have come to the conclusion that the prosecution has failed to prove its case against the appellant and learned Additional Sessions Judge has erred in convicting him for the offence Under Section. 302 read with 34 IPC.
18. As a result of the above discussion, we allow the appeal and set aside the impugned Judgment dated November 16, 1998 of learned Additional Sessions Judge, No. 1, Jaipur City, Jaipur. We acquit appellant Ishwar Lal @ Mukesh @ Pappu of the charge under Section,302 read with 34 of the Indian Penal Code. The appellant who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.