Rajasthan High Court - Jodhpur
Ram Gopal & Anr vs State on 7 March, 2013
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:JUDGMENT:
Ram Gopal & Another Vs. State of Rajasthan
(D.B. Criminal Appeal No. 452/1988)
Date of Judgment : March 7th, 2013
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
_________________________________________
Mr. Vineet Jain for the appellants.
Mr. O.P. Singharia, P.P.
Mr. Manish Shishodia for the complainant.
BY THE COURT : (Per Hon'ble Mr. Vyas, J.)
Instant criminal appeal has been filed by the accused- appellants under Section 374, Cr.P.C. against the judgment passed by the Addl. Sessions Judge, Nagaur (Camp Deedwana) dated 30.11.1988 passed in Sessions Case No.65/1987, by which, learned trial Court convicted both the accused-appellants for offence under Section 302, read with Section 34, I.P.C. and sentenced each to undergo life imprisonment and pay fine of Rs.100/-, in default of payment of fine, to further undergo 7 days' simple imprisonment. The trial Court further convicted both the appellants for offence under Section 447, I.P.C. and passed sentence of 1 month's rigorous imprisonment and ordered that both the substantive sentences shall run concurrently.
As per facts of the case, a first information report was 2 lodged by Kanhaiya Lal Patwari, P.W.-5 on 08.08.1986 at Police Station Jaswantgarh at about 3.15 P.M., in which, it is alleged that khasra No.192 is situated at village Mithari, in which, khatedari land of one Madan Lal is situated and Kanhaiya Lal was having general power of attorney in his favour under which he was in possession and cultivating the said land.
The informant further alleged that one Ram Singh was deputed by him as Chowkidar to look after and take care of the crop and land. According to the complainant, in the western side of khasra No.192, khasra No.191 is situated which is khatedari land of one Hari Prasad and complainant was having general power of attorney for and on his behalf also, however, the said land was in possession of one Ghanshyam Brahmin and his family members as trespassers; meaning thereby, some dispute took place with regard to land in question for which some cases were also going on in between the first informant Kanhaiya Lal and Ghanshyam Brahmin.
It is alleged that on the date of occurrence i.e., 08.08.1986 at about 1 P.M., Kanhaiya Lal came to know from Chaman Ram Jat that as per information conveyed by Birma Ram his chowkidar Ram Singh has been murdered in khasra No.192. The complainant stated in the FIR that he went to the place of occurrence with Tejraj Mahajan, Madanlal Gaur, Gopal Singh, Prithvi Singh Rajput, Hajari Ram Daroga and others went to the field and found Ram Singh lying dead and his clothes were smeared with blood. Therefore, he lodged FIR, in which, he alleged that some body has committed murder of Ram Singh and 3 further stated that there is enmity in between Ghanshyam Brahmin and his family members and Ghanshyam's son Lal Chand and one Ganpat Ram s/o Moti Ram Jat gave threatening to Ram Singh 4 - 5 days ago that they will kill him, at that time, Gopal s/o Ghanshyam was also with them.
Upon the first information, Ex.-P/3, Police Station Jaswantgarh registered FIR No.42 for offences under Sections 302 and 447, I.P.C. and commenced investigation. The Station House Officer Mohan Singh, P.W.-16 made investigation and inspected the site and prepared Ex.-P/6 site plan in which the place where the body was lying was shown and other papers were prepared for usual investigation of the case.
The body of deceased Ram Singh was brought to the hospital where postmortem was conducted by Dr. Bhom Singh, P.W.-18 and, according to the postmortem report, Ex.-P/27, 3 injuries were found upon the body of deceased Ram Singh, out of which, injury No.1 was swelling on the left arm over the elbow which was lacerated wound measuring 2 cm X 1 cm, injury No.2 was contusion 4 cm X 2 cm on the left arm rear side and, injury No.3 was lacerated wound 2 cm X 2 cm bone deep on the left parietal region and below the wound it was found that the bone was fractured and, in the opinion of the doctor, injury No.3 was cause of death of late Ram Singh.
The accused-appellants along with their wives Smt. Tara and Smt. Sundar were arrested by the police as per the suspicion mentioned in the FIR and, thereafter, in the investigation, both the accused-appellants gave information that 4 they used lathi in the incident which can be got recovered by him and vide Ex.-12 and Ex.-22 the lathis were recovered as per information given by the accused-appellants. The investigating officer sent lathis and all other articles recovered from the place of occurrence and clothes of deceased for chemical examination and the examiner sent report Ex.-P/3 and opined that lathis recovered as per information of the accused and clothes of the deceased were smeared with common "O" group blood. After completion of investigation, the police filed challan against the accused in the Court of Munsiff & Judl. Magistrate (First Class), Ladnun from where the case was committed to the Court of Addl. Sessions Judge, Nagaur (Camp Deedwana) for trial.
The trial Court after framing charge against 4 persons viz., Ram Gopal, Lal Chand, Smt. Tara and Smt. Sundar for offence under Section 302, read with Section 34, I.P.C. and Section 447, I.P.C. commenced the trial.
The prosecution led evidence before the trial Court in support of its case and, in all, 20 prosecution witnesses were produced before the Court including so called eye-witness P.W.-8 Mohan Singh. After recording statements of the witnesses produced by the prosecution, statements of the accused under Section 313, Cr.P.C. were recorded and, from the defence side, two witnesses namely, D.W.-1 Jeevan Ram and D.W.-2 Likhma Ram were examined. Thereafter, the case was finally heard by the trial Court and trial Court vide judgment dated 30.11.1988 while acquitting accused Smt. Tara and Smt. Sundar from all charges convicted both the present appellants for offences under 5 Section 302, read with Section 34, I.P.C. and offence under Section 447, I.P.C. and sentenced them as noted hereinabove.
In this appeal, the appellants are challenging the validity of above judgment dated 30.11.1988.
Learned counsel for the appellants vehemently argued that the trial Court decided this case point-wise and, in para 21, the trial Court after considering the facts of the case and statement of P.W.-9 Mohan Singh held that testimony of this eye-witness is not trustworthy and trial Court gave finding that evidence of eye- witness P.W.-9 Mohan Singh is concocted. The trial Court further gave finding that P.W.-8 Magan Singh and P.W.-11 Bhagirath Singh are close relatives of the deceased and they were residents of different villages, therefore, their testimony is not trustworthy for the purpose of having seen the accused while going from the site of the occurrence. The trial Court discredited the evidence with regard to extra-judicial confession and held that ground of extra-judicial confession of the prosecution deserves to be rejected.
Learned counsel for the appellants vehemently argued that the finding given by the trial Court with regard to motive is totally erroneous because admittedly criminal cases are pending in between the author of the FIR and accused party and deceased Ram Singh was Chowkidar upon the land of complainant Kanhaiya Lal situated in khasra No.192, therefore, the finding of the trial Court on the basis of Kanhaiya Lal's statement for motive deserves to be discredited because if the accused-party was having any enmity or quarrel with Kanhaiya 6 Lal, then, they would have aimed the alleged assault upon Kanhaiya Lal who alleged that there was enmity going on in between him and accused party. As per counsel for the appellants, on the basis of presumption that deceased Ram Singh was Chowkidar upon the land in question and he was protecting Kanhaiya Lal, therefore, he was killed by the accused party is not acceptable because for the purpose of getting fruits of the agricultural land it can be presumed that accused could have intention to kill Kanhaiya Lal but it is not proper in law to adjudicate that deceased Ram Singh was protecting Kanhaiya Lal, therefore, it is to be presumed that accused-appellants killed him. Therefore, for the above reason, it is argued that the finding given by the trial Court with regard to motive is not sustainable in law because any prudent man can understand the fact that one party who have quarrel with another party will launch assault upon the party concerned but, here, in this case, the complainant alleged that his chowkidar Ram Singh has been murdered because criminal cases are going on in between him and accused-party, therefore, the finding with regard to motive deserves to be quashed.
Learned counsel for the accused-appellants vehemently argued that the trial Court accepted the dying declaration which is also grossly erroneous because in the FIR the only assertion has been made by the complainant Kanhaiya Lal that deceased Ram Singh informed him that 4 - 5 days ago Lal Chand, son of Ghanshyam and Ganpat Ram s/o Moti Ram Jat gave threatening to him that they will kill him and, at that time, Gopal was also 7 with them which is said to be made by deceased to Kanhaiya Lal. It is contended by learned counsel for the appellants that such statement cannot be relied upon as dying declaration in view of Section 32 of the Evidence Act. P.W.-5 Kanhaiya Lal, author of FIR, categorically stated in his statement that there is enmity in between him and accused party with regard to land of khasra No.191 and 192, upon which, accused-appellants and their family members are in possession, therefore, a serious error has been committed by the trial Court while accepting such type of statement made by the complainant in the FIR as the dying declaration of the deceased.
Learned counsel for the appellants submits that the finding with regard to recovery of lathis from the accused-appellants is also erroneous because there is major contradiction in the statements of motbir witnesses P.W.-12 Surjan Singh and P.W.- 14 Prithvi Singh. While inviting attention of the Court towards statements of both these witnesses, it is submitted that a bare perusal of the statements of these witnesses will reveal that both are making statements differently, therefore, it cannot be said that the prosecution has proved its case beyond reasonable doubt with regard to recovery of lathis at the instance of accused-appellants.
Further, it is argued that if recovery of lathis is not proved beyond reasonable doubt by the prosecution, then, obviously the opinion of the FSL with regard to blood group upon the clothes of the deceased and alleged lathis becomes redundant, therefore, the conviction which is based upon erroneous finding is not 8 sustainable in law.
Lastly learned counsel for the appellants submits that the finding given by the trial Court for the purpose of motive/dying declaration and with regard to "opportunity to murder" are totally baseless because as per evidence on record it cannot be said that the prosecution has proved its case with regard to motive or dying declaration, therefore, the judgment impugned may be quashed.
It is vehemently urged by both the learned Public Prosecutor and learned counsel for the complainant that in this case admittedly there was land dispute in between the author of the FIR, P.W.-5 Kanhaiya Lal and accused party. In the FIR, at the initial stage, the complainant raised suspicion upon the family of Ghanshyam Brahmin and appellants who were in possession of the land situated in khasra No.191 where the complainant's guard Ram Singh was deputed to protect the crop and land, therefore, obviously only to remove deceased Ram Singh from the land in question the accused-appellants were having enmity with him (author of the FIR). Therefore, the trial Court relied upon the testimony of P.W.-5 Kanhaiya Lal and gave finding that the prosecution has proved its case with regard to the dying declaration, so also, for motive. As per counsel for the complainant and Public Prosecutor, no error has been committed by the trial Court in concluding the case against the appellants-accused while holding them guilty for offence under Section 302, read with Section 34, I.P.C.
From the prosecution side, 4 judgments have been cited to 9 prove the case of prosecution with regard to dying declaration submitting that the prosecution case has rightly been treated to have been proved by the trial Court and conclusion of the trial Court is supported by the judgments reported in, - (1) AIR 1939 Privy Council 47, Pakala Narayan Swami Vs. Emperor (2) AIR 1979 SC 1347, Tehal Singh & Others Vs. State of Punjab (3) AIR 1984 SC 1622, Sharad Birdhichand Sarda Vs. State of Maharashtra, and (4) AIR 1998 SC 682, Najjam Faraghi @ Najjam Faruqui Vs. State of West Bengal. While relying upon the above judgments, it is submitted that no error has been committed by the trial Court in convicting the accused-appellants for committing offence under Section 302, read with Section 34, I.P.C.
With regard to the question of recovery of lathis and FSL report, it is submitted that lathis which were used in the incident by the accused were recovered at the instance of the accused- appellants in the presence of independent witnesses, therefore, the question of mere contradiction will not come in way of the finding that blood-stained lathis were recovered from the accused-appellants. Therefore, on this count also, no interference is called for with the conviction of the accused- appellants for committing murder of deceased Ram Singh.
Lastly it is argued that blood group "O" was found upon the lathis recovered at the instance of the appellants and clothes of the deceased as per the FSL report, therefore, in view of the fact that lathis were recovered at the instance of the accused- appellants which were stained with "O" group blood found upon 10 the clothes of the deceased, therefore, it is a case in which the trial Court has rightly arrived at the finding that accused- appellants are guilty of committing offence under Section 302, read with Section 34, I.P.C. On the basis of the above submissions, learned counsel for the complainant and learned Public Prosecutor opposed the grounds taken by the appellants for their acquittal and against the finding of guilt arrived at by the trial Court and submit that the judgment rendered by the trial Court deserves to be upheld and appeal filed by the accused-appellants may be dismissed.
After hearing learned counsel for the parties, we have carefully perused the impugned judgment and scanned the evidence on record.
It may be observed that the trial Court decided the case point-wise as follows :
(1) पत कदर स क क दष क ण स । (2) घटन स ल स अभ कगण क ल टन क! पर$सस त' ।
(3) न त कत$ स*स+,क-त' (Extra Judicial Confession) । (4) ह' {म टट+}।
(5) अभ कगण क भलए $ मभस*ह क! हत क अ+स$।
(6) $ मभस*ह क मत- क न {ड इ*ग डडकल$रन}।
(7) $क $* स6' ल ट7 8 क! ब$ मदग,।
On the first point, पत कदर स क क दष क ण स, learned trial Court gave finding that the testimony of the eye-witness Mohan Singh, P.W.-9 deserves to be discredited because it is concocted. With regard to second point, घटन स ल स अभ कगण क ल टन क! पर$सस त' , after discussing entire evidence the trial Court gave 11 finding that the evidence of last-seen is also not trustworthy, therefore, decided the said point against the prosecution. With regard to the third point, न त कत$ स*स+,क-त' (Extra Judicial Confession), the trial Court while taking into consideration the entire evidence and the judgment cited by learned counsel for the accused, before this Court also, gave finding that the prosecution has failed to prove its case on the ground of extra- judicial confession.
With regard to the point of "motive", the trial Court gave finding that the said fact has been proved by the prosecution upon which the trial Court based the conviction of the accused- appellants.
We have examined the question of "motive". It appears from the evidence relied upon by the trial Court that deceased Ram Singh was appointed guard by the author of the FIR, P.W.-5 Kanhaiya Lal on the land situated at khasra No.192 and accused- appellants were in possession of the adjoining land situated in khasra No.191 and there was quarrel in between Kanhaiya Lal (P.W.-5) and accused-party, therefore, as per finding of the trial Court, the presence of Ram Singh (deceased) became "आ;ख क! कक$कक$> औ$ कब ब म@ हडड," for the accused because deceased Ram Singh was protecting complainant Kanhaiya Lal, therefore, there was motive for the accused to commit murder of deceased Ram Singh with a view to remove Ram Singh the accused-appellants committed the offence.
Upon reappreciation of the evidence and facts, the above finding is baseless because there is no foundation in the eye of 12 law to presume that Ram Singh was hurdle. If quarrel and enmity with Kanhaiya Lal was persisting in between the parties, then, the accused-appellants would have aimed the aggression against Kanhaiya Lal himself and done away with him and, according to the author of the FIR himself, the accused- appellants were fostering enmity against him and not directly against deceased Ram Singh, therefore, by killing Ram Singh the accused-appellants were not be benefited in any manner because Kanhaiya Lal would still remain in possession of the property and dispute of possession of land and quarrel would still persist. Therefore, in our opinion, the finding of the trial Court with regard to motive is based upon presumption and superficial appreciation of evidence which cannot be sustained in the eye of law. In view of the aforesaid, the finding given by the trial Court with regard to motive is hereby rejected.
With regard to the finding that the accused-appellants were having opportunity to kill Ram Singh no discussion of evidence has been made by the trial Court to give finding that accused-appellants were having opportunity to kill deceased Ram Singh. In the impugned judgment there is assertion only in the finding that deceased Ram Singh alone was guarding the agriculture land of complainant Kanhaiya Lal and found dead at the place of occurrence as per Ex.-P/6 and on the basis of apprehension that accused-appellants are in possession of the land situated in khasra No.191 the trial Court gave finding that the accused-appellants were having opportunity to kill him because he was alone in the night. The following finding is 13 given by the trial Court :
"59. अभ कगण क भलए $ मभस*ह क! हत क अ+स$ :
घटन क! $ ' $ मभस*ह अकल ख० न*० 192 प$ $ख+ ल> क$ $ह । म क र$प टC दखन + स6स पक $ $ मभस*ह क! ल र प ई गई, उसक अन'गC' ह सप स षप' ह ' हF, कक पदरC प, 6 म म कC "ए" स न क प स $ मभस*ह प$ हमल कक ग औ$ उसक पश ' H घ ल अ+स म@ $ मभस*ह म कC "ब," प$ च $प ई क प स आक$ पड ग औ$ मत- क प प हआ ।
60. ह 'थ ए+* पर$सस त' इस ब ' क स*क' द', हF, कक अभ कगण क $ मभस*ह क! मत- क र$' क$न क पM$ अ+स$ प प ।"
In our opinion, the above finding is totally non-convincing; more so, the term used in the finding itself is sufficient that the finding is based upon presumption which is not sustainable in law. The judgment against the accused-appellants is based upon evidence of dying declaration, mentioned by the author of the FIR P.W.-5 Kanhaiya Lal, and in the statement made by him before the Court during trial which reads as under :
"इस + क स 3-4 टदन पहल $ मभस*ह न कह , कक ग प ल, ल लच*द + गणप'$ म 6 ट ख' प$ ग + धमक! द>, कक 'म चह * स चल 6 ओ, नह>* ' 6 न स म $ द@ ग ।"
The above statement made in the FIR and before the Court can be treated as "dying declaration" or not, we have examined the judgments cited by the prosecution.
In the case of AIR 1939 Privy Council 47, Pakala Narayan Swami Vs. Emperor, the facts of that case were altogether different because in that case the body of the deceased man was found in a steel trunk in a railway third class compartment at Puri, the terminus of the branch line on the Bengal Nagpur railway where the trunk had been left unclaimed. 14 The body had been cut into seven portions and the medical evidence left no doubt that the man had been murdered. A few lays elapsed before identification but eventually the body of the deceased was identified by his widow. He was a man of about 40 and had been married about 22 years. He had been a peon in the service of the Dewan of Pithapur one of whose daughters was the wife of the accused. It was suggested by the prosecution that before her marriage and about 19 years before the events in question the wife of the accused then a girl of about 13 had had an intrigue with the deceased. Four letters were produced by the deceased's widow purporting to be signed by the girl bearing date 1918 supporting this suggestion.
Upon the aforesaid facts, the Privy Council held that if any statement is made as stated by the widow it was admitted as falling under the provisions of Section 32 of the evidence Act. Upon perusal of the finding of the Privy Council it will reveal that the finding for accepting dying declaration was based upon entirely different facts which are not identical to the facts of the present case.
Similarly, in the case reported in AIR 1979 SC 1347, Tehal Singh & Others Vs. State of Punjab, in para 4 of the judgment, the question of dying declaration was considered which reads as under :
"4. The dying declaration was re corded by the Head Constable Kulwant Singh at the Hospital in the presence of the Medical Officer Dr. Pasricha. We were taken through the evidence of Kulwant Singh and we are unable to find any reason for not acting upon the evidence of Kulwant Singh.15
Dr. Pasri cha who was examined by the prosecution as P.W. 2 stated in his evidence that Harmel Singh was brought to the Hospital at about 10.15 P.M. and that he sent a report Exh. P.W. to the Police and outpost at 10.20 p. m. The Head Constable came to the Hospital and recorded the statement of Harmel Singh, in his presence. On his advice Harmel Singh was taken to the Bhatinda Hospital at 11.15 p.m. In cross-examination he made a clear attempt to help the defence by stating that when Harmel Singh arrived in the Hospital his pulse was weak and imperceptible, suggesting thereby that Harmel Singh was not in a position to make a statement. He also stated that while the statement was recorded by the Head Constable he went to his office for 10 or 15 minutes in order to prepare some papers. The statements made by him are contradicted by the certificate appended by him at the foot of Harmel Singh's statement that the statement was recorded in his presence and that Harmel Singh remained in full possession of senses throughout. Dr. Pasricha also went to the extent of deposing that Sub-Inspector Baldev Singh and Assistant Sub Inspector Daulat Ram were both present when the statement of Harmel Singh was recorded. This statement of Dr. Pasricha is obviously false since Daulat Ram was not in Giddarbaha at all at that time and Baldev Singh came to the Hospital after Harmel Singh had been removed to Bhatinda. The attempt of Dr. Pasricha to help the defence was castigated by the learned Sessions Judge and the High Court and we entirely agree with the learned Sessions Judge and the High Court in the remarks which they made about Dr. Pasricha. From the certificates appended at the foot of the statement of Harmel Singh and from the evidence of Kul want Singh we do not have the slightest hesitation in holding that Harmel Singh was in a position to make the statement attributed to him. We do not also see any force in the suggestion of Dr. Chitaley that the statement of Harmel Singh was not made in expectation of death and was, therefore, not entitled to weight. Apart from the fact that Section 32 of the Evidence Act does not require that a 16 statement should be made in expectation of death, it is clear from the evidence that the condition of Harmel Singh was serious at that time. In the requisition made by the Medical Officer to the Police it has been clearly mentioned that the condition of Harmel Singh was serious. The very circumstance that Dr. Pasricha advised that Harmel Singh should be removed to Bhatinda Hospital for better treatment clearly indicates that the condition of Harmel Singh was serious. Kulwant Singh stated in his evidence that he put questions to Harmel Singh and recorded the answers of Harmel Singh. No doubt he stated that he recorded what Harmel Singh stated 'in his own way'. It does not mean that he recorded something other than what Harmel Singh stated. All that it means is that the language was his but the substance was what Harmel Singh stated. We do not think that any infirmity is attached to the dying declaration on this account. The dying declaration undoubtedly contains a wealth of detail as argued by Dr. Chitaley. The details contained in any statement, depend upon the capacity for observation of the person making the statement, the condition of the per son at the time of making the statement his anxiety to mention details and the manner in which questions are put and answers elicited. It may be that in certain situations the very wealth of detail in a statement attributed to a dying man may arouse suspicion. On the other hand the circumstance that a statement contains a wealth of detail cannot necessarily lead to the inference that the statement is a fabricated one. In the present case we are unable to say from the mere wealth of detail contained in the statement that it must have been fabricated. As already stated by us there was no reason for Kulwant Singh to involve himself by fabricating a false dying declaration. There is also the very important circumstance that the First Information Report containing the statement of Harmel Singh was received by the Magistrate by 6.45 a.m. It could hardly be said that there was time for fabricating a statement like the one in question. One of the comments of 17 Dr. Chitaley was that if the dying declaration was recorded as stated by Kulwant Singh, he would have straightway examined Hardip Singh and Chhota Singh. Admittedly Hardip Singh and Chhota Singh were examined next morning. But that is easily explained. Harmel Singh was taken to Bhatinda Hospital at 11 p.m. i.e. immediately after the statement was recorded. Among the persons who went to Bhatinda with Harmel Singh were Hardip Singh and Chhota Singh. They were, therefore not available for examination by the Head Constable. They returned next morning. When they returned, the Sub-
Inspector was busy preparing Panchanamas etc. and as soon as he finished preparation of Panchanamas he examined the two witnesses. It cannot, therefore, be said that there was any delay in the examination of Hardip Singh and Chhota Singh by the Police. We agree with the lower Courts that the dying declaration was recorded by Kulwant Singh at the time when it purports to have been recorded.
We also find that there is no basis for the allegation that Baldev Singh was responsible for fabricating the dying declaration. Though it was suggested to Baldev Singh that he was closely related to the deceased he did not admit the relationship. It was elicited from Chhota Singh that Baldev Singh was related to Chhota Singh and that Chhota Singh's great grand-father and the grand-father of Pirthi Singh were brothers. The alleged relationship of Baldev Singh to the deceased appears to be far too remote."
Upon perusal of the adjudication made by the Hon'ble Supreme Court, again, it is revealed that facts are entirely different because the judgment was based upon entirely different facts than the facts of the present case. Here, in the case on hand, there is no evidence on record with regard to direct dying declaration by deceased Ram Singh. The only assertion is made in the FIR by the complainant Kanhaiya Lal, P.W.-5 that 3 - 4 18 days before it was said by the deceased that he had been given threatening by the accused-appellants.
Likewise, in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in AIR 1984 SC 1622, and, in the case of Najjam Faraghi @ Najjam Faruqui Vs. State of West Bengal, reported in AIR 1998 SC 682, the facts are replete with corroborating circumstances to rely upon the dying declaration as falling under Section 32 of the Evidence Act.
Therefore, after perusing all the above judgments we are of the opinion that facts of the present case are altogether different. It is true that if anything disclosed by the deceased within short time of his death that he has been given threatening by some person, then, it is relevant for the purpose of accepting the dying declaration.
Here, in this case, the author of the FIR, P.W.-5 Kanhaiya Lal raised suspicion in the FIR but, only assertion was made by him with regard to so called threat given by the accused- appellants 3 - 4 days before the death of the deceased. Therefore, in our opinion, on the basis of said statement, it cannot be said that finding of dying declaration given by the trial Court is sustainable in law. But, it can be said that this fact is established by the prosecution that 3 - 4 days before some quarrel took place in between accused-appellants and the deceased. Therefore, while observing disinclination for acceptance of the finding of dying declaration in the impugned judgment given by the learned trial Court, it is however accepted that some quarrel took place 3 - 4 days 19 before the occurrence in between deceased Ram Singh, Guard and the accused-appellants.
With regard to recovery of blood-stained lathis and FSL report, we are of the opinion that cogent evidence is on record to prove the fact that the blood-stained lathis were recovered from the accused-appellants. It emerges from the evidence that the prosecution has established by evidence the recovery of the blood-stained lathis and the fact that there was quarrel in between the complainant party and accused party.
In the light of the above discussion, we have examined the injuries found upon the body of the deceased at the time of postmortem which are as under :
"(1) Swelling of lt. Upper arm just above elbow more on antero lateral side over which is situated a lacerated wound 2 cm X 1 cm X bone deep there (अप) under lying compound open fracture of humerus bone and arm is twisted at this side.
(2) Bruise - 4 cm X 2 cm with marked swelling of lt hand dorsal side, more on ulnar side.
(3) Lacerated wound - 6 cm X 2 cm X bone deep on scalp on lt side 5 cm from midline on the anterior parithera is dipressed fracture of underlying frontal purietal and temporal bones under lying this injury."
Upon perusal of the above injuries, it is revealed that the first injury is swelling upon left upper arm and second is bruise, 4 cm X 2 cm and third injury is a lacerated wound 6 cm X 2 cm X bone deep on scalp; meaning thereby, there is no repeated 20 blows and, in fact, as per postmortem, there is only one fatal injury found upon the body of deceased which can be caused by lathi. Therefore, it emerges from the evidence on record that the occurrence took place in the night intervening 7th and 8th of August, 1986, in which, deceased Ram Singh received three injuries out of which one was upon the scalp and dimension of that injury was 6 cm X 2 cm X bone deep which is cause of death. We have applied our mind towards the evidence and nature of injuries. In our opinion, it can be said that there was no intention of the accused-appellants to kill deceased Ram Singh obviously for the reason that he was only guard of Kanhaiya Lal, P.W.-5 with whom the accused-appellants were having enmity and due to death of the guard there was no question of any gain, therefore, in this case, after appreciation of the evidence on record, we are of the opinion that ingredients of Section 302, I.P.C. are totally absent.
We have already discussed the question of motive and discredited the finding arrived at by the trial Court with regard to motive. Therefore, we are of the opinion that on the basis of recovery of blood-stained lathis at the instance of the accused- appellants vide Ex.-P/21 and Ex.-P/22, it can be said that those lathis were used at the time of the occurrence. However, essence of the evidence is that there was no intention to commit murder of deceased Ram Singh but injury No.3 was so severe that it resulted into death of Ram Singh. In view of above it is a case of culpable homicide not amounting to murder. Therefore, the accused-appellants are not liable to be convicted for offence 21 under Section 302/34, I.P.C. In our considered opinion, the offence cannot travel beyond Section 304 Part-II, I.P.C.
In view of above discussion, this appeal is partly allowed. The finding given by the trial Court of conviction against the accused-appellants for offence under Section 302 read with Section 34, I.P.C. is hereby quashed and set aside but the accused-appellants are held guilty for committing offence under Section 304 Part II, I.P.C. We have given our thoughtful consideration for the purpose of quantum of punishment. In our opinion, the offence is of the year 1986 and accused-appellants remained in judicial custody from 13.08.1986 to 30.11.1988 during trial and their sentence was suspended by this Court vide order dated 11.01.1989; meaning thereby they remained in jail from 13.08.1986 to 11.01.1989. Therefore, each of them is punished for offence under Section 304 Pt.-II, I.P.C. with the sentence of imprisonment already undergone along with fine of Rs.20,000/- each which shall be payable to the legal heirs of late Ram Singh.
The accused-appellants are on bail, therefore, their bail bonds and sureties are hereby discharged. The amount of fine shall be deposited by each accused-appellant within a period of two months.
(Prashant Kumar Agarwal) J. (Gopal Krishan Vyas) J. Ojha, a.
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Certified that all corrections, as per instruction, have been duly incorporated.
(Arun Ojha) Private Secretary