Rajasthan High Court - Jaipur
Narendra vs State Of Rajasthan Through Pp on 10 April, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 1565/2016
Narendra S/o Chittar Lal B/c Meena, R/o Pachelkalan, Police
Station Anta, Distt. Baran (Rajasthan)
----Accused-Appellant
Versus
State of Rajasthan Through PP
----Respondent
_____________________________________________________
For Appellant : Mr.Rakesh Kumar with
Mr.Desh Raj & Ms.Priyanka Chouhan.
For State : Mr.R.R.Gurjar, Public Prosecutor.
_____________________________________________________
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Judgment
10.04.2017
BY THE COURT:-
The accused-appellant by way of this Criminal Appeal under Section 374 Cr.P.C. has challenged the judgment of conviction and order of sentence dated 29.11.2016 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Baran in Sessions Case No.133/2016 whereby the learned trial Court after holding the appellant guilty for offence under Section 323 IPC sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.500/- and in default thereof to further undergo simple imprisonment for one month and also convicting him for offence under Section 307 IPC sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.50,500/- and in default thereof to further suffer simple imprisonment for six months. It was also ordered (2 of 16) [CRLA-1565/2016] that if the amount of fine is deposited by the appellant, an amount of Rs.50,000/- would be paid to the victim Shri Manak Chand as compensation under Section 357 Cr.P.C. and the remaining amount of Rs.500/- would be deposited in exchequer. It was further directed that both the substantive sentences would run concurrently.
Brief relevant facts for the disposal of this appeal are that Shri Satyanarayan (PW1), brother of injured victim-Shri Manak Chand (PW3) on 31.3.2013 at 11.25 p.m. submitted a written report (Ex.P1) before Police Station Anta (District Baran) alleging therein that on 21.3.2013 at 10.15 p.m. when his brother Shri Manak Chand Meena alongwith Shri Pradeep, Shri Pappu and Shri Lekhraj was watching TV at the shop of Shri Nand Kishore Meena, appellant came there on a motorcycle and with intention to cause death of his brother inflicted four injuries on his head with an axe and them he fled away from the place of incident on his motorcycle. It was further averred in the report that his father, uncle-Shri Chaturbhuj, Shri Vidyaratan, Shri Lekhraj etc. brought his brother in the jeep of Shri Bharat Prakash Galav to CHC Anta and the doctor finding the condition of brother serious referred him for further treatment to Kota. On the basis of this report, FIR No.91/2013 was registered for offences under Sections 307 and 323 IPC at Police Station Anta (Baran) and investigation was undertaken. During the course of investigation injured-Shri Manak Chand was medically examined, statements of witnesses were recorded under Section 161 Cr.P.C., appellant was arrested and at his instance an axe allegedly used in the incident was recovered and after (3 of 16) [CRLA-1565/2016] usual investigation charge-sheet for offences under Sections 307, 323 and 325 IPCF was filed against the appellant. Charge for aforesaid offences was accordingly framed against the appellant and in order to prove the same, prosecution produced oral as well as documentary evidence. Appellant in his statement recorded under Section 313 Cr.P.C. denied the evidence produced on behalf of the prosecution and specifically stated that due to previous enmity he has falsely been implicated but in defence no evidence was produced. Learned trial Court after considering the submissions made on behalf of the respective parties and the evidence made available on record convicted and sentenced the appellant as already stated. It is to be noted that he was acquitted for offence under Section 325 IPC.
In support of the appeal, learned counsel for the appellant raised the following grounds:-
(1) It is an admitted fact that complainant-informer-PW1-Shri Satyanarayan, brother of injured Shri Manak Chand, is not an eye-
witness of the incident and he lodged the written report either on the basis of information furnished to him by wife of Shri Hariom or by Shri Vidyaratan, but during trial neither of them was produced as witness and in absence thereof it cannot be said that report was lodged by Shri Satyanarayan on the basis of information received from either of them and when the source on the basis of which the report was lodged is not clear, by raising adverse inference against the prosecution it must be held that the entire prosecution case has become suspect and doubtful. It is well settled legal position that in a (4 of 16) [CRLA-1565/2016] criminal case the first information report is an important and relevant document on which the entire edifice of prosecution case stands and when such edifice is missing, the entire prosecution case is doubtful and suspect.
(2) As per prosecution case at the time of alleged incident Shri Pradeep , Shri Lekhraj, Shri Chandra Prakash, Shri Pappu and Shri Nand Kishore were present and it was claimed that they are eye- witnesses of the incident but during trial they did not support the prosecution case and were declared hostile and accordingly it was not safe to convict the appellant for such a serious offence solely on the basis of statement of injured-Shri Manak Chand more particularly looking to the previous enmity between them and also looking to the fact that there are several material and important improvements, contradictions and inconsistencies in the statement of the injured but learned trial Court did not consider this aspect of the matter in a right perspective.
(3) Injured PW3-Shri Manak Chand in clear words has claimed that injuries were caused to him by using sharp side of the axe whereas as per the injury report all the injuries on his head were found to be caused by a blunt weapon and this fact alone is sufficient to doubt his sole evidence. Material contradiction is also in the statement of the injured about the fact whether blow was made on his head from behind or from front side. The injured in the initial part of his statement has stated that blow was made from behind whereas in the later part of the statement it was said by him that injury was caused (5 of 16) [CRLA-1565/2016] to him from front side.
(4) As blood was not found on the axe recovered at the instance of appellant during investigation, it cannot be said that the recovered axe was used by him to cause injuries to injured and in absence of connection between the recovered axe and the injury found on the body of the injured, the prosecution story becomes more suspect and doubtful. Possibility cannot be ruled out that appellant was falsely implicated in the case by the reason that prior to the present incident a case for offence under Section 307 IPC was registered against injured-Shri Manak Chand at the instance of appellant and in order to pressurise the appellant and to save himself the injured falsely implicated the appellant leaving out the actual offender.
(5) In absence of evidence of Dr.Ramesh Malav (Radiologist), who prepared the x-ray and CT-Scan report of injured, only on the basis of statement of PW9-Dr.Vijayendra Nath Tiwari, Medical Officer, CHC Anta, injury Nos.2 and 3 cannot be held to be grievous in nature and dangerous to life. Although, Dr.Tiwari has opined that the aforesaid injuries were grievous in nature and dangerous to life but it was Dr. Ramesh Malav who undertook CT-Scan and x-ray of the injured and it was necessary for the prosecution to produce him as witness during trial more particularly in view of the admission made by Dr. Tiwari in his cross-examination that as all four injuries were already stitched, he is not in a position to state about the nature of these injuries. PW9-Dr.Tiwari was not having first hand knowledge of the (6 of 16) [CRLA-1565/2016] injuries found on the head of the injured as it is an admitted fact that immediately after the incident he was admitted for his treatment in Sudha Hospital, Kota and none from that hospital also was produced as witness during trial. Incident is of 21.3.2013 whereas injured was examined by Dr. Tiwari first time on 30.3.2013 and, therefore, in absence of nature of treatment meanwhile given to injured and the reports prepared in this regard, opinion of Dr. Tiwari has no evidenciary value.
In support of his submissions learned counsel for the appellant relied upon the cases of RamzanVs. State of Rajasthan reported in 1991 (2) RLW 85 and Rameshwar Lal & Ors. Vs. The State of Rajasthan reported in 1984 WLN (UC) 399.
On the other hand, learned Public Prosecutor supporting the findings of the trial Court, submitted that there is no illegality, perversity or infirmity in the impugned judgment and order requiring interference by this Court. It was further submitted that although the eye-witnesses have not supported the prosecution case but from the sole statement of injured-Shri Manak Chand it is more than clear that it was appellant who caused injuries to his head by an axe and there are no material contradictions, improvements, inconsistencies or infirmities in his statement so as to not rely him. It was also submitted that his statement is supported by medical evidence also .
The submissions made on behalf of the respective parties were considered in the light of evidence available on record and the case law relied upon on behalf of the appellant but I do not (7 of 16) [CRLA-1565/2016] found any illegality, perversity or infirmity in the impugned judgment requiring interference by this Court.
Although, it is an admitted fact that complainant- informer-PW1-Shri Satyanarayan is not an eye-witness of the incident and he lodged the written report Ex.P1 on the basis of information furnished to him either by wife of his younger brother Shri Hariom or by one Shri Vidyaratan and both of them have not been produced as witness during trial but merely by that reason it cannot be said that the written report was submitted by Shri Satyanarayan at his own without getting knowledge of the incident from them falsely implicating the appellant in the incident due to previous enmity between the parties. It is well settled legal position that it is not necessary in each and every case that first information report is lodged by a victim or eye-witness of the incident and it can be lodged even by such a person who has received information about the incident from any other person. In his examination-in- chief PW1-Shri Satyanarayan has said that on the date of incident when he was sleeping at his house, wife of his brother came there to call him and she informed him that injuries have been caused to Shri Manak Chand. He has further stated that on information being gathered by him he found that the appellant has inflicted injury by an axe to his brother. In his cross-examination at one place he stated that he was informed by Hariom's wife that injury has been inflicted to Shri Manak Chand. He further stated that on the information given by Shri Vidyaratan report was lodged by him. In (8 of 16) [CRLA-1565/2016] view of the explanation given by the witness, prosecution story cannot be doubted and rejected merely by the reason that brother's wife and Shri Vidyaratan were not produced as witness during trial.
Similarly, prosecution case cannot be suspected by the reason that all the eye-witnesses did not support the prosecution story during trial. It is well settled legal position that if the Court finds the sole statement of a witness to be fully reliable, the incident can be held to be proved and the accused can be held guilty on the basis of statement of such a witness. PW3-Shri Manak Chand in his examination-in-chief has said that on the date of incident i.e. on 21.3.2013 at about 10.15 a.m. when he was watching TV at the shop of Shri Nand Kishore Meena, appellant came there on a motorcycle and with intention to cause his death inflicted 3-4 blows on his hand from the sharp side of an axe which was lying there. He has further said that the appellant caused injury to him due to previous enmity. In his cross-examination he has said that he was sitting on a cot which was lying outside the shop of Shri Nand Kishore Meena. He has further said that although there was no Road Light nearby but bulbs were burning inside and outside of that shop. He has also said that appellant came from behind and without having any talk with him caused injuries and as a result thereof he fell on the ground. He has admitted that it is only after blow was made he noticed that injuries have been caused on his head. In his further cross-examination the injured has said that prior to the present incident a case was registered against him for causing (9 of 16) [CRLA-1565/2016] injuries to appellant and this case is still pending. He has also said that injuries were caused to him from front side. He has further admitted that when appellant picked-up the axe he neither made noise nor tried to run away and the person present at the place of incident did not try to save him. He expressed ignorance about the fact whether appellant brought any weapon with him or not but at the same time he clearly said that the axe which was used by the appellant was lying near the cot upon which he was sitting. He denied the suggestion that some unknown person inflicted injury to him from behind and appellant has falsely been implicated in the incident due to previous enmity.
From a close look at the statement of injured it is clear that on the date of the incident when injured-Shri Manak Chand was sitting on a cot outside the shop of Shri Nand Kishore Meena and was watching TV, appellant came there on a motorcycle and after picking-up an axe which was lying nearby inflicted blows from front side on the head of the injured. Nothing has come out in his lengthy cross-examination so as to doubt his statement give on oath. Although, in his cross-examination he at one place has stated that appellant came from behind and at another place he has said that injury was caused to him from front side but merely by that reason it cannot be said that there is material contradiction in his statement as he never said that injury was caused to him by appellant from behind. A person initially may come from behind but thereafter he may cause injury from front side. Statement of injured can not also (10 of 16) [CRLA-1565/2016] be suspected by the reason that according to him injuries were caused by sharp side of the axe whereas as per medical evidence injuries were found to have been caused by a blunt weapon. In the opinion of this Court it is not necessary in each and every case that when blow is made by sharp side of a weapon incised wounds would always be caused. A blow given by an axe with its sharp side pointing towards the victim may not always result in causing incised wound. What type of injury it will cause would depend upon various factors like the position of the assailant and the victim, angle at which it hits the body, the part of the body where it lands, the force with which it hits the body etc. Otherwise also, generally the injured person are in a habit to exaggerate about side of the weapon which was used to inflict the injury but merely by that reason his entire statement cannot discarded and, therefore, in the present case if for the sake of arguments it is accepted that injured has wrongly said that sharp side of the axe was used by the appellant to cause injuries to him even then his whole statement cannot be held to be unreliable.
So far as recovery of axe at the instance of appellant during investigation is concerned, although due to absence of blood on it it can not safely be held that it was the same axe which was used by the appellant in the incident but merely by that reason also the otherwise reliable statement of injured cannot be doubted. Recovery evidence of a weapon at the instance of an accused during investigation is admissible in evidence under Section 27 of the (11 of 16) [CRLA-1565/2016] Evidence Act but it is only a corroborative piece of evidence and it cannot override the direct evidence of a victim or eye-witness. In the present case, if for the aforesaid reason the evidence to the extent of recovery of the axe is excluded even then the prosecution case is not adversely affected.
The prosecution case cannot also be suspected by the reason that there was previous enmity between injured and appellant as a criminal case was registered against the injured at the instance of appellant and same was pending when the present incident occurred. There is nothing on record to show that the injured left the real offender and falsely implicated the appellant in the case. In his cross-examination the injured has denied the suggestion that some unknown person inflicted injuries to him from behind and in order to save him from previous case he has falsely named the appellant as a person who inflicted injury to him. Although, the eye-witnesses did not support the prosecution case and they were declared hostile but suggestion was not made to any of them in cross-examination that injury to Shri Manak Chand was inflicted by some unknown person. It is well settled legal position that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused. Where enmity is proved to be the motive for the crime, the accused cannot urge that despite proof of the motive for the crime, the witness proved to be inimical should not be relied upon. Testimony of an eye-witnesses or victim, which is otherwise convincing and (12 of 16) [CRLA-1565/2016] consistent, cannot be discarded simply on the ground that previously there was some dispute between the accused and the witness. In the present case testimony of injured inspire confidence of the Court ruling out possibility of false implication of appellant.
Although, in the present case Dr.Ramesh Malav (Radiologist) who prepared the x-ray and CT-Scan reports and any doctor from Sudha Hospital, Kota, where the injured in fact underwent his treatment, were not produced as witness but in the overall facts and circumstances of the case merely by that reason it cannot be held that opinion given by Dr. Tiwari is not be acceptable. Dr. Vijyendra Tiwari (PW9) in his examination-in-chief has said that while posted as Medical Officer at CHC Anta he on 30.3.2013 on the requisition of Police Station Anta examined injured Shri Manak Chand and found four injuries on his body. He has further said that x-ray was advised for injury No.1 and CT Scan for injury Nos.2,3 and 4 and as per the report of Dr.Ramesh Malav (Radiologist) of MBS Hospital, Kota fracture of head bone and injuries inside the head were found and, therefore, injury Nos.2 and 3 were grievous in nature and dangerous to life. He has also said in his examination-in- chief that from x-ray of injury No.1 fracture of bone of right eye and right cheek was found and this injury was also grievous in nature. The witness has opined that all the injuries were by a blunt weapon and were of the duration of one to two weaks. The witness not only proved injury report Ex.P9 but also x-ray plate Ex.P10, covering letter Ex.P11 and letters Ex.P12 and P13 written by him. In his (13 of 16) [CRLA-1565/2016] cross-examination the witness has admitted that he is not in a position to opine about the nature of injuries as they were stitched and he has expressed his opinion on the basis of report prepared by Dr. Ramesh Malav but at the same time he in his cross-examination has also said that record about treatment previously given to the injured was brought by the police before him. In his cross- examination the witness has further said that the injured was initially treated at Sudha Hospital by a Neurosurgeon Dr. Kaushal Hari Sharma and he was discharged from that hospital on 28.3.2013. Although, any doctor including Dr.Kaushal Hari Sharma from Sudha Hospital was not produced as witness by prosecution and the treatment papers prepared at this hospital were also not got exhibited but looking to the fact that as per the cross-examination of Dr.Tiwari it is an admitted fact even by appellant that injured Shri Manak Chand underwent treatment for his injuries at Sudha Hospital, in the opinion of this Court the copies of papers of Sudha Hospital, which are available on record, can be looked into to determine the nature of injuries found on the body of injured-Shri Manak Chand. One of the papers of Sudha Hospital, Kota shows that injured-Shri Manak Chand was admitted in the hospital on 22.3.2013 and he was operated upon on 28.3.2013. According to this document head injury was found and there was fracture of maxilla. As per the another document of Sudha Hospital dated 22.3.2013 on CT Scan being done evidence of depressed and communited fractures of frontal bone associated with small contusions in (14 of 16) [CRLA-1565/2016] underlying areas were seen. As per the report dated 25.3.2013 evidence of depressed fracture of frontal bone associated with fractures of roof of left orbit, bilateral ethmoid bones, lateral wall of right orbit, anterior medial as well as postero-lateral walls of bilateral maxillary sinuses and left side of maxillary body were seen. It is thus clear that immediately after the incident Shri Manak Chand was admitted in a private hospital at Kota in the Neurosurgery Ward and head injury was found and he also underwent operation and depressed fractures of frontal bone were seen. Similarly as per report dated 1.4.2013 prepared by Dr. Ramesh Malav (Department of Radio Diagonosis & Modern Imaging, Govt. Medical College and Associated Group of Hospitals, Nayapura, Kota) Segmental displaced fracture of frontal bone, small contusions with surrounding oedema were seen in left frontal region of Shri Manak Chand. As per this report Minimally depressed fracture of right parietal bone was also found and blood was seen in para nasal sinuses. Although, these documents were not exhibited during trial but looking to the admitted position on the part of the appellant that injured Shri Manak Chand received treatment at Sudha Hospital, I am of the opinion that all these documents can be considered to determine the nature of injuries caused to him and undue advantage cannot be given to appellant merely due to failure on the part of the prosecution to get these documents exhibited during trial. Dr. Tiwari has given his opinion on the basis of x-ray and CT Scan report and he has clearly said in his cross-examination that papers relating to (15 of 16) [CRLA-1565/2016] treatment of Shri Manak Chand were produced by police before him. I do not find any reason to discard the opinion given by Dr. Tiwari regarding injury Nos. 2 and 3 that they were grievous in nature and dangerous to life.
From the evidence available on record it is clear that appellant came at the place of incident on a motorcycle and he picked up an axe lying there and suddenly inflicted injuries on the head of injured and it can be inferred that appellant caused injuries with a knowledge that as a result his act the injured may die. Merely because he reached at the place of incident without a weapon, it cannot be held that offence under Section 307 IPC is not made out. I am of the view that the learned trial Court has rightly convicted the appellant for offence under Section 307 IPC but so far as offence under Section 323 IPC is concerned, as appellant was convicted for a major offence under Section 307 IPC he was not required to be separately convicted for offence under Section 323 IPC also which is a minor offence and no person other than injured-Shri Manak Chand was injured in the incident.
So far as sentence awarded to the appellant is concerned, looking to the nature of injuries caused, the weapon used, the part of the body where injuries were caused and the manner in which the whole incident occurred, the same cannot be said to be excessive and unreasonable. Looking to the overall facts of the case the amount of fine imposed can not also be said to be unreasonable and excessive more particularly in view of the fact that (16 of 16) [CRLA-1565/2016] almost whole of the fine has been ordered to be paid as compensation to the injured as per the requirement under Section 357 Cr.P.C.
Consequently, the appeal is partly allowed and the impugned judgment and order dated dated 29.11.2016 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Baran in Sessions Case No.133/2016 to the extent of offence under Section 323 IPC is quashed and set aside but the conviction and sentence of the appellant for offence under Section 307 IPC is upheld and affirmed and to that extent the appeal is dismissed.
(PRASHANT KUMAR AGARWAL)J. teekam Reserved Judgement