Rajasthan High Court - Jaipur
State Of Rajasthan vs Likhma Ram And Ors. on 20 July, 2001
Equivalent citations: 2002(4)WLN608
JUDGMENT Garg, J.
1. This appeal has been filed by the State of Rajasthan against the judgment and order of acquittal dated 28.1.1987 passed by the learned Addl. Sessions Judge, Nagaur in Sessions Case No. 21/85, by which he acquitted the accused respondents to the charges for the offence under Sec. 307/34 and 341/34 IPC.
2. The facts giving rise to this appeal, in short, are as follows:-
On 16.6.85 at about 12.30 PM, PW 10 Budharam gave statement to PW 9 Kishore Singh, which was recorded by him in Ex. P/15, staling inter-alia that on that day at about 10-11 AM he went to field for satisfying nature's call and at that time, accused respondents met there, who were having lathies in their hands and they started beating him and they beat him continuously, as a result of which, he fell down and since he was beaten so severely, he was not in a position to say which accused respondent caused which injury on his body and there was no enmity with them. He has further stated that he remained there is injured condition and, thereafter, he come to his house and then Gopal, PW 4 Shivji, PW 5 Chatraram, PW 6 Ratnaram, Tejaram and others came and they took him to the hospital of Nagaur in Jeep.
On this parcha-bayan, PW 13 Rampal, Incharge of the Police Station Khatu District Nagaur registered the case and chalked out regular FIR Ex. P/30 and started investigation and during investigation, PW 10 Budharam was got medically examined by Dr. Hansram Godara, PW 7 and his injury report is Ex. P/5, and X-ray was also got conducted for so many injuries and the X-ray report is Ex. P/13. The accused respondents were arrested on 25.6.1985 through arrest memos Ex. P/16 to Ex. P/19.
After usual investigation, police submitted challan against the accused respondents in the Court of Magistrate, from where the case was committed to the Court of Session.
On 26.7.1985, the learned Addl. Sessions Judge, Nagaur framed charges for the offence under Section 307/34 and 341/34 IPC against the accused respondents. The charges were read over and explained to the accused respondents. They denied the charges and claimed trial.
During trial, the prosecution in support of its case examined as many as 13 witnesses and got exhibited some documents. Thereafter, statements of the accused respondents under Section 313 Cr.P.C. were recorded. In defence, seven witnesses were produced by the accused respondents.
After conclusion of trial, the learned Addl. Sessions Judge, Nagaur through his judgment and order 28.1.1987 acquitted the accused respondents of the charges for the offence under sections 307/34 and 341/34 holding inter-alia:-
1. That PW 10 Budharam in his statement Ex.P/15 has stated that he has no enmity with the accused respondents, while PW 2 Durgaram stales that father of the accused respondent-Likmaram was beaten and compromise took place.
2. That PW 10 Budharam has stated in his statement Ex.P/15 that he was lying in injured condition on the spot for a sufficient time, though PW 2 Durgaram says that when he reached on the spot, he saw that the accused respondents were beating PW 10 Budharam.
3. That PW 10 Budharam has stated in his statement Ex.P/15 that all accused respondents were armed with lathies, while in Court statement he has stated that one accused respondent- Likmaram was armed with kulhari.
4. That PW 2 Durgaram does not say how many injuries of farsi were caused to PW 10 Budharam.
5. That prosecution has failed to produce independent witnesses, though there were so many persons where the incident took place.
6. That prosecution witnesses, namely, PW 4 Shivjiram, PW 2 Durgaram, PW 6 Ratnaram and PW 5 Chatraram are relatives and interested witnesses and, therefore, learned trial Judge did not believe their evidence.
7. That PW 10 Budharam has himself admitted that accused respondents ran away form the scene after beating him and, thereafter, PW 2 Durgaram, PW 4 Shivjiram and PW 5 Chatraram came there and therefore, they could not be described as eye witnesses, while PW 2 Durgaram says that he saw the accused respondents beating injured PW 10 Budharam and thus, there are material contradictions and creates doubt on the prosecution story.
8. That there is evidence that when PW 10 Budharam went to satisfy nature's call, he was having a lotta, but no lotta was recovered and this also creates doubt on the prosecution story.
9. For the aforesaid reasons, the learned Addl. Sessions Judge, Nagaur acquitted the accused respondents of the charges framed against them.
Aggrieved from the said judgment and order dated 28.1.1987 passed by the learned Addl. Sessions Judge, nagaur, this appeal has been filed by the State of Rajasthan.
3. In this appeal, the main contention of the learned Public Prosecutor for the Slate is that the whole order of acquittal passed by the learned Addl. Sessions Judge is based on flimsy grounds as there is sufficient evidence to connect the accused respondents with the commission of crime and the statement of PW 10 Budharam is fully supported by medical evidence and the most important aspect as put by the learned Public Prosecutor is that incident took place on 16.6.1985 at about 10-11 Am and statement Ex.P/15 was given by PW 10 Budharam to PW 9 Kishore Singh in the noon i.e. just after few hours of occurrence and thus, there is no reason to hold that PW 10 Budharam is falsely implicating the accused respondents. Hence, it was prayed that this appeal be allowed and the impugned judgment and order of acquittal passed by the learned Addl. Sessions Judge be set aside and the accused respondents be convicted and sentenced for the offence under Section 307/34 and 341/34 IPC.
4. On the other hand, the learned counsel appearing for the accused respondents has argued that the findings of acquittal recorded by the learned Addl. Sessions Judge, Nagaur are based on correct appreciating of evidence and thus, no interference is called for and this appeal filed by the State of Rajasthan be dismissed.
5. I have heard the learned Public Prosecutor and the learned counsel for the accused respondents and perused the record of the case.
6. Before proceeding further, first medical evidence of this case has to be discussed here.
7. Dr. Hansram Godara, PW 7 has been examined to prove the injury report Ex.P/5 and x-ray report Ex. P/13 of injured Budharam, PW 10.
8. PW 7 Dr. Hansram Godara states that on 16.6.1985 he was Medical Jurist in the Government Hospital, Nagaur and on that day he examined Budharam, PW 10 and found the following injuries:-
1. Contusion 4"x1 1/2" on anterolateral aspect of right arm in middle 1/3. Simple by blunt object.
2. Contusion 2"x1 1/2" on lateral aspect of middle 1/3 of right arm. Simple by blunt object. ,
3. Contusion 5"x1" on posterior aspect of open part of right forearm. By blunt object.
4. Contusion 2"x1" with l/2"x/2" abrasion over it placed transversely on posterior aspect of right forearm middle 1/3. By blunt object.
5. Contusion 1 1/2"x1" with irregular abrasion over it transversely placed on right forearm posteriosly in distal 1/3. By blunt object.
6. Contusion 2"1 "with abrasion over it on diffuse swelling of posterior aspect of right hand. By blunt object.
7. An abrasion 1/4"x 1/4" on posterior aspect of proximal phalanx of right middle finger. By blunt object.
8. An incised would of 1"x1/4" x bone deep vertically placed on posterolaleral aspect of right arm about 3" above the lateral condyle of humerous. By sharp edged weapon.
9. Contusion 2"x1" transversely placed on right arm 2" anterior to injury No. 8. By blunt object.
10. Contusion 2"x1" on posterior medial aspect of left forearm with diffuse swelling of the part in lower 1/3. By blunt object.
11. Swelling of 3"x 1 1/2" size on posterior aspect of left hand. By blunt object.
12. Abrasion 1/2" x 1/4"on antero lateral aspect of proximal phalanx of ring finger in left hand. By blunt object.
13. Abrasion 1/2"x 1/4" on posterior aspect of proximal phalanx of middle finger in left hand. By blunt object.
14. An incised would of 1/2"x 1/6"x bone deep transversely placed on distal phalanx of middle finger of left hand cutting and missing the distal half of the nail. By sharp edged weapon.
15. Six contusions of different lengths in different directions about 1"to 1 1/2" width present on right buttock in an area of 10" x 10". Simple by blunt object.
16. Contusion of 8"x1"on anterolateral aspect of right thigh in middle part. Simple by blunt object.
17. A contusion 2"x1" with abrasion on right knee laterally. Simple by blunt object.
18. A contusion 2"x1" with diffuse swelling of the anterolateral aspect of right leg in upper 1/3. By blunt object.
19. A lacerated would 3"x 3/4"x bone deep on anterior aspect of middle 1/3 of right leg by blunt object.
20. Incised would of 1/2" x 1/4" muscle deep 1" below the lower end of injury No. 19. Simple by sharp edged weapon.
21. Incised would 1/2" x 1/4" muscle deep 2" below the injury No. 20.
Simple by sharp edged weapon.
22. Incised would 1/2"x 1/4" muscle deep 6" above the lateral malleolus. Simple by sharp edged weapon.
23. Contusion 2"x 1" on lateral aspect of right leg just below the injury No. 22 with diffuse swelling. By blunt object.
24. A lacerated would 4" x 3/4"x bone deep on skin of tibia left side in middle 1/3. By blunt object.
He has further stated that out of the above 24 injuries, injuries No. 8, 14, 20, 21 and 22 were caused by sharp edged weapon. He has further stated that he advised X-ray for so many injuries and since he was also Incharge of Radiology, therefore, he got done the X-ray of injuries of PW 10 Budharam and the X-ray report is Ex. P/13 and according to him, injuries No. 3,4,5,6,7,10,11,12,13,14,18 and 20 were grievous in nature. He has further staled that looking to the cumulative effect of all these injuries, the condition of the injured PW 10 Budharam was not good one and had he been not given proper and timely treatment, these injuries would have been fatal.
9. Thus, from the statement of PW 7 Dr. Hansram Godara, it is very well proved that PW 10 Budharam received as many as 24 injuries and out of these 24 injuries, five injuries were caused by sharp edged weapon and on x-ray of his injuries, as many as 12 fractures were found.
10. The next question that arises for consideration is whether accused respondents have caused these injuries to PW 10 Budharam or not.
11. PW 9 Kishore Singh states that on 16.6.1985 he was in the Police Station Nagaur and at about 12.05 (noon) he received a message from the doctor of Government Hospital, Nagaur that a person, namely, Budharam has been admitted in the hospital in injured condition and, thereafter, he went there and recorded the statement Ex. P/15 of PW 10 Budharam. He has further stated that statement Ex. P/15 of PW 10 Budharam bears the endorsement of Dr. Hansram Godara, PW 7.
12. Thus, it has been proved by the prosecution that statement Ex. P/12 of PW 10 Budharam was recorded by PW 9 Kishore Singh, while PW 10 Budharam was in hospital and the same was recorded in the presence of Dr. Hansram Godara, PW 7.
13. In his statement Ex. P/15, PW 10 Budharam has clearly stated that all accused respondents were armed with lathies and he was beaten by them so severely that he received so many injuries and he fell down on the ground and remained there for some time in injured condition and, thereafter, he went to home and called upon other persons.
14. From the statement Ex.P/15 of PW 10 Budharam, it appears that at the time when he was beaten by the accused respondents, nobody was there. Therefore, PW 2 Durgaram, PW 4 Shivjiram, PW 5 Chatraram and PW 6 Ratnaram in the present case cannot be regarded as eye witnesses though they may be regarded witnesses of just after occurrence to narrate the incident as disclosed to them by PW 10 Budharam.
15. Thus, in the present case, there remains the solitary statement of PW 10 Budharam involving the accused respondents that he was beaten by them.
16. Before examining the statement of PW 10 Budharam, it is to be seen whether a conviction can take place on the solitary statement of a witness or not.
Quality not quantity of evidence material
17. Section 143 of the Indian Evidence Act enshrines the well recognised maxim that "Evidence has to be weighed not counted". The matte thus depends upon the circumstances of each case and the quality of evidence even of a single witness whose testimony has either to be accepted or rejected. If such a testimony is found by the Court to be entirely reliable there is no legal impediment to the conviction of the accused person on such proof. Even, as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of the accused may be established by the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. In this respect, the decisions of the Hon'ble Supreme Court in Vadivalu Thevar v. State of Madras , Maqsoodan vs. State of U.P., Kartik Malhar v. State of Bihar , Praveen v. State of Haryana and Balo Yadav v. State of Bihar , may be referred to.
18. In State of U.P. v. Hakim Singh , it has been held by the Hon'ble Supreme Court that law does not require a plurality of witnesses. Conviction can be based on the testimony of a single witness, provided the evidence of the witness is trustworthy. No particular number of witnesses is required to prove a fact.
19. The Hon'ble Supreme Court in Jagdish Prasad vs. State of M.P. (7), has held that testimony of a solitary witness can be acted upon, if entirely reliable and corroboration is required only in case of doubt or suspicion.
20. It is settled law that corroboration is not rule of law, but one of caution as an assurance. The conviction could be made on the basis of the testimony of solitary witness. The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness to the victim, his predisposition towards the accused, are some of the circumstances to be kept in view to weight and accept the ocular evidence of a witness. It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the Court for acceptance. For that the decision of the Hon'ble Supreme Court in Mikiyath Singh vs. State of Punjab (8) may be referred to.
21. Thus, it can be concluded that:-
(1) As a general rule, a court can and may act on the testimony if a single witness, though uncorroborated. One credible witness out-weight the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, the corroboration should be insisted upon, for example in the case of a child witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of single witness is or is not necessary, must depend upon fact and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
22. Keeping the above principles in mind, the solitary statement of PW 10 Budharam is being critically examined.
23. In court statement, PW 10 Budharam states that all accused respondents were armed with lathies, but on the instructions of the counsel for complainant, he said that accused respondent Likmaram was armed with farsi and he was beaten by all of them and then he fell down and PW 2 Durgaram, PW 4 Shivjiram, PW 5 Chatraram and PW 6 Ratnaram reached there, but at that time accused respondents had gone after beating him. From the statement of PW 10 Budharam, it appears that there witnesses reached on the spot just after the occurrence. This witness has been cross examined at length, but nothing has come out which affects his testimony except one point that in his statement Ex.P/15 given before PW 9 Kishore Singh, he has not mentioned that accused respondent Likmaram was armed with farsi, though in court statement he said that accused respondent Likmaram was armed with farsi.
24. So far as the injuries of PW 10 Budharam is concerned, his injury report is Ex. P/5, which shows that that he received as many as 24 injuries and out of these injuries, five injuries were caused by sharp edged weapon and thus, if PW 10 Budharam has not mentioned in his statement ex. P/15 that accused respondent Likmaram was armed with farsi, it would not affect the prosecution case, as the statement, which was given by him in court, gets corroboration from medical evidence.
25. Thus, the statement of PW 10 Budharam is fully corroborated by the medical evidence and there is no delay in recording his statement. In these circumstances it cannot be inferred or presumed that PW 10 Budharam is telling lie or falsely implicating the accused respondents. His statement appears to be straight forward and does not suffer from material infirmity and the minor contradictions found in his statement are of trivial nature. PW10 Budharam has clearly stated in his statement Ex.P/15 that accused respondents have no enmity with him, though PW 2 Durgaram says otherwise, but this fact would not affect the testimony of PW 10 Budharam.
26. Thus, it is concluded that statement of PW 10 Budharam is reliable and trustworthy and reliance can be placed on his testimony. From his statement, it is well well proved that the injuries, which were received by PW 10 Budharam, were caused by the accused respondents.
27. For the reasons stated above, it is held that the accused respondents have caused injuries to injured Budharam, PW 10 and the findings of the learned Addl. Sessions Judge by which he has not accepted the statement of PW 10 Budharam and acquitted the accused respondents of all the charges framed against them, are liable to be set aside, as they are perverse and against the weight of the evidence on record and there is manifest error and the learned Addl. Sessions Judge misread the evidence and indulged in conjectural to ferences and surmises.
28. The next question that arises for consideration is whether the injuries, which were received by PW 10 Budharam, are sufficient to make out a case for the offence under Section 307/34 IPC or not.
29. To prove the charge for the offence under Section 307 IPC, the prosecution has to prove:-
1. That the accused did an act.
2. That is was done
(i) with the intention, or
(ii) with the knowledge-
(a) of causing death;
(b) of causing such bodily injury as the accused knew to be likely to cause the death of the person to whom the harm was attempted to be caused; or
(c) of causing bodily injury to a person and the bodily injury intended to be inflicted would have been sufficient in the ordinary course of nature to cause death; or
(d) that the act if completed would have been so imminently dangerous that it would have in all probability caused death or such bodily injury as is likely to cause death; and the act attempted was committed without any excuse for incurring the risk of causing death or such injury as aforesaid.
30. In order to attract the penalty under Section 307 IPC, the murderous intent is an essential element. That intention can be gathered from the nature of weapon, the parts of the body where injury is inflicted, nature of injuries inflicted and the opportunity available which the accused gets.
31. It may also be pointed out there that in coming to the conclusion, the act of the accused should be kept in mind and not the result. In other words, the angle of guilty has to be viewed from the point of intention and not from the result achieved.
32. Looking to the entire facts an circumstances of the case and the fact that accused respondents caused 24 injuries to P.W.10 Budharam and out of these 24 injuries, some of them were caused by sharp edged weapon and 12 fractures were found on the body of injured PW 10 Budharam, intention of the accused respondents to murder P.W.10 Budharam can be gathered. The injuries received by PW 10 Budharam itself go to show that accused respondents had only one intention and that was to murder P.W. 10 Budharam and that is why, they after severely beating him ran away and left him in injured condition. Since all accused respondents have assembled with lathies and out of four one with farsi etc. and, thereafter, they all started beating PW 10 Budharam, therefore, it is a fit case where it can be said that there was common intention among all four accused respondents and that common intention was to murder PW 10 Budharam and in furtherance of the common intention they all caused injuries to PW 10 Budharam. Where common intention is established it is irrelevant as to who gave the fatal blow and each accused would be liable with the aid of Section 34 IPC and for the State of Maharashtra v. Kalu Shivram Jagtap , may be referred to.
33. Thus, a case for the offence under Sections 307/34 and 341/34 IPC is clearly made out against the accused respondents and the learned trial Judge was not right in acquitting the accused respondents of the said offences.
34. The argument that prosecution has not been able t prove that which injury was caused by which accused, therefore, offence under Sections 307/34 and 341/34 IPC should not be held to be proved against the accused respondents, is not at all appreciable one, in view of the fact that when Section 34 IPC is applicable, the question which accused caused which particular injury is not material. As already stated above, there was common intention among all accused respondents to murder PW 10 Budharam and in furtherance of that common intention they caused injuries to PW 10 Budharam.
35. The finding of the learned Addl. Sessions Judge that since no independent witness of the locality was produced, therefore, statement of PW 10 Budharam cannot be accepted, is erroneous one in the manner that when he was beaten by the accused respondents, nobody was there. Therefore, non-production of independent witness is not fatal one.
36. The finding of the learned Addl. Sessions Judge that lotta was not recovered and produced is very insignificant and especially when there is direct evidence which is found in the statement of PW 10 Budharam and the same is being corroborated by medical evidence and also from the statement of PW 9 Kishore Singh, who recorded his statement.
37. The finding of the learned Addl. Sessions Judge that since PW 2 Durgaram, PW 4 Shivjiram, PW 5 Chatraram and PW 6 Ratnaram are interested and related witnesses, therefore, their evidence cannot be believed, is not to be appreciated in view of the fact that these witnesses have not been treated as eye witnesses by this Court.
38. So far as the finding of the learned Addl. Sessions Judge the solitary statement of PW 10 Budharam is no sufficient to connect the accused respondents with the commission of crime is concerned, this aspect has been dealt with above and the statement of PW 10 Budharam has been found by this Court reliable, which is fully supported by the medical evidence.
39. The finding of the learned Addl. Sessions Judge that since it has not been mentioned by PW 10 Budharam in his statement Ex. P/15 that accused respondent Likmaram was having farsi, therefore, his subsequent statement in court that accused respondent Likmaram was having farsi, affects his testimony, is not to be appreciated for the simple reason that FIR is not an Encycopaedia and when a person is beaten by four persons severely it was not necessary that he could have judged that this accused respondent Likmaram was having a farsi though he has mentioned that he was having lathi in his hand and his name is found in the Parcha Bayan. Had name of this accused respondent would have not been found in Parcha Bayan, the position would have been different.
40. For the reasons stated above, it is held that the prosecution has proved its case beyond all reasonable doubts for the offence under Section 307/34 and 341/34 IPC against the accused respondents and thus, the findings of the learned Addl. Sessions Judge, Nagaur by which he acquitted the accused respondents of the said defances, are liable to be set aside as they are perverse and there is manifest error and the accused respondent are liable to be convicted for the offence under sections 307/34 and 341/34 IPC.
41. The Hon'ble Supreme Court in Hari Ram vs. State of Rajasthan , has held that power of the High Court while hearing an appeal against the order of acquittal is as wide as an appeal against conviction.
42. The Court is cautious of the principles governing and regulating the hearing of appeal by the High Court against an order of acquittal passed by the trial court, as laid down by the Hon'ble Supreme Court in Ajit Savant Majagavi v. State of Karnataka, and keeping these principles in mind, the findings of the learned Addl. Sessions Judge, Nagaur are being reversed and set aside as they are perverse and erroneous and there is manifest error and the learned trial Judge misread the evidence and indulged in conjectual inferences and surmises.
On point of sentence
43. The accused respondents are going to be convicted for the offence under Section 307/34 and 341/34.
44. Looking to the entire facts and circumstances of the case and the fact that injured PW 10 Budharam received so many injuries including fractures and that incident took place in the year 1985 and about 16 years have elapsed, if each of the accused respondent is sentenced to three years R1 and to pay fine of Rs. 1,000/- in default of payment of fine, to further undergo three months R1 for the offence under Section 307/34 IPC, it would meet the ends of justice.
45. Since the accused respondents have been awarded punishment in the major offence under Section 307/34 IPC, there is no need to award separate sentence for minor offence Under Section341/34 IPC.
In the result, this appeal filed by the State of Rajasthan is allowed and the impugned judgment and order of acquittal dated 28.1.1987 passed by the learned Addl. Sessions Judge, Nagaur in Sessions Case No. 21/85 are set aside and the accused respondents (1) Likhma Ram (2) Baldev Ram (3) Murli @ Murlia and (4) Gopa Ram @ Shri Ram are convicted for the offence under Sections 307/34 and 341/34 IPC and for the offence under Section 307/34 IPC, each accused respondent is sentenced to undergo three years rigorous imprisonment and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo, three months R1. As per the provisions of Section 428 Cr.P.C. the period of detention, if any, undergone by each of them during the investigation of Trial shall be set off from there years' R1.
Since the accused respondents have been awarded punishment in major offence Under Section 307/34 IPC, No separate sentence for the minor offence Under Section 341/34 IPC is is being awarded to them.
Since the accused respondents are on bail, they shall surrender before the trial court immediately and in case they do not surrender before the trial court, the trial court shall take necessary steps for arresting them and sending them to jail to serve out the remaining period of sentence.