Rajasthan High Court - Jaipur
Roopa Ram And Ors. vs State Of Rajasthan on 16 August, 1999
Equivalent citations: 2000CRILJ1031
JUDGMENT G.L. Gupta, J.
1. The judgment dt. 23-8-82 of the learned Sessions Judge, Jodhpur, convicting appellants Roopa Ram, Basti Ram and Sukh Ram Under Section 325 and 447, IPC and sentencing Roopa Ram to undergo two years R.I. and a fine of Rs. 500 under the first count, one month R.I. under the second count and releasing appellants Sukhram and Bastiram on probation, has given rise to this appeal.
2. The incident had taken place in the morning of 4-10-81 in village Pal Thoriyon Ki Dhani in which Girdhari (P.W. 3) and Bhera Ram (deceased) had sustained injuries. The prosecution case, as unfolded in the statement of Girdhari recorded by Khet Singh, A.S.I. at 10-15 a.m. on 4-10-81 was that Basti Ram had inflicted lathi blow to Bhera Ram and Rupa Ram had inflicted a 'farsi' blow on his head by sharp side. It was further stated that the assailants were five in numbers viz. Basti Ram, Rupa Ram, Chaina Ram, Sukhram and Gopa Ram. On this report, a case Under Section 147, 148, 149, 452 and 307, IPC was registered. The police inspected the site and interrogated the witnesses. The injuries of Bhera Ram were examined by Dr. Dharmendra Sharma, P.W. 16 who prepared the injury report Ex. P-16. Bhera Ram was admitted in the hospital for treatment but he expired on 11-10-81. Thereafter offence Under Section 302, IPC was added. The police after investigation challaned only three appellants Basti Ram, Rupa Ram and Sukh Ram.
3. Rupa Ram was charged with offence Under Section 302 and 447, IPC, Sukh Ram Under Section 447 and 302/34 and Basti Ram Under Section 302, 447 and in alternative 302/34, iPC. They pleaded not guilty. The prosecution examined P.W. 1 Jimani Ram, P.W. 2 Gopa Ram, P.W. 3 Girdhari, P.W. 4 Chuni, P.W. 5 Jhamku, P.W. 6 Pappu Rani, P.W. 7 Ghura Ram, P.W. 8 Heera Ram, P.W. 9 Khet Singh, P.W. 10 Barju, P.W. ] 1 Dilip Sankhla, P.W. 12 Jethmal, P.W. 13 Ramlal, P.W. 14 Dr. S. P. Mathur, P.W. 15 Hem Singh, P.W. 16 Dr. Dharmendra Sbarma, P.W. 17 Dr. Tej Singh Arcra and P.W. 18 Amar Singh. Accused in their statements Under Section 313, Cr. P.C. denied accusation. They examined two witnesses D.W. 1 Sima Ram and D.W. 2 Mohan Ram in defence. The learned Sessions Judge after hearing the counsel for the parties held that the prosecution failed to prove charges Under Section 302 and 302/34, IPC against any of the three accused persons. He further held that offences Under Section 325 and 447, IPC were proved against Rupa Ram, and offences Under Section 323 and 447, IPC were proved against Sukh Ram and Basti Ram. As already stated, he released the two accused on probation but sentenced Rupa Ram as stated above.
4. Mr. Boob, learned counsel for the appellant, pointing out that the trial Court has disbelieved the statements of all the eyewitnesses but for Pappu on whose testimony the conviction has been recorded, argued that Pappu who is child has given evidence under the influence of his elders. Pointing out the improvements made by the witness, he contended that there was no occasion for the witness to have seen the occurrence. He pointed out that his name was not disclosed as eye-witness in the FIR and that the witness admits that he was tutored before entering into the witness box. The contention of Mr. Boob was that the occurrence had taken place at the early hours of morning in which as a matter of fact Basti Ram was beaten for which a case was registered prior in time to the FIR lodged in this case. In this connection, he drew my attention to the fact that the FIR was not forwarded forthwith to the "Ilaka" Magistrate and was sent after 9 days.
5. The learned P.P. on the other hand, tried to support the judgment of the trial Court stating that the presence of Pappu was natural at the time and place of occurrence.
6. I have considered the above arguments. A perusal of the judgment of the trial Court shows that it found unworthy of credence the testimony of P.W. 4 Chunnilal, P.W. 5 Jimmku eye witnesses and even P.W. 3 Girdhari, the first informant. The conviction has been recorded on the basis of the testimony of Pappu, P.W. 6 who was of about 11 years of age at the time of occurrence. The question for consideration is-whether the testimony of Pappu is worthy of credence.
7. Pappu Ram deposes that he had seen accused Roopa Ram causing 'Kassi' blow on the head of his grand-father Bhera Ram and Surja Ram a lathi blow on his chest. The witness admits in his cross-examination that before he entered into the Court room his police statement was read over to him. Though in the next breath he changes the version, yet again in the cross- examination he admits that his advocate had read over the statement to him. There is thus evidence on record that he was tutored before he entered into the witness-box.
8. The witness has been confronted from his police statement Ex. D-5 as there are discrepancies in his Court statement and the statement recorded Under Section 161, Cr. P.C. In the statement Ex. D5 the witness had stated that it was Mohan (not challaned) who had inflicted an axe blow to his grand-father Bhera Ram, and that Kalu Ram and Simmi Ram had given lathi blows to his grandfather but in Court statement he makes Roopa Ram responsible for the head injury and does not name Kaluram and Simmi Ram. It is obvious that the medical evidence does not corroborate the testimony of Pappu Ram. It is also significant to point out that according to Ramlal, I.O. P.W. 13 this witness had been interrogated many a times but only his one statement recorded Under Section 161, Cr. P.C. has been produced in the Court. The withholding of these statements goes to show that in those statements the witness had not supported the prosecution story. It is therefore not safe to place reliance on the testimony of Pappu Ram.
9. Furthermore, the facts which have appeared in his Court statement show that Bhera Ram had suffered 'Kassi' injury by sharp side. The witness says in categorical terms that 'Kassi' had penetrated four 'Angul' (approximately 3 inches) in the head. At the same time, he says that Roopa Ram had inflicted "Kassi' blow from the reverse side. Thus the two portions of his statement do not reconcile. It is to be noticed that according to Dr. Sharma, P.W. 16 who had performed autopsy on the body of Bhera Ram, the injury which was found on the head of Bhorn Rani did not correspond to the measurement of the reverse side of 'kassi' shown to him.
10. It is relevant to point out that the name of this witness was not disclosed in the FIR as the person who had seen the occurrence. As a matter of fact the case at the initial stage was that the occurrence had occurred in early morning. The possibility that Pappu Ram who was child had not got up by that time, cannot be ruled out.
11. One fact which raises doubt in the correctness of the prosecution version is that the FIR was not sent to the Ilaka Magistrate forthwith. It was sent to the Magistrate on 13-10-81 i.e. 9 days after the alleged registration. A note appearing on the FIR Ex. P-19 indicates that it was sent by 'Dak' and reached the Court on 13-10-81, whereas the statement of Ramlal, S.H.O., P.W. 13 indicates that the same was sent through some constable and not by post. The attention of the witness was drawn to the fact that the FIR Ex. P-19 gave a look that it was never folded. Even today, it looks like that. The fact that the FIR Ex. P/9 reached the Court without any fold goes to show that it was never sent in the envelope and was not sent by post. No satisfactory explanation is coming forth for not sending the FIR promptly to the Magistrate. The defence is, therefore, justified in contending that the FIR was not registered on the date and the time recorded therein and it is a post investigation document.
12. As a result of the foregoing discussions, I am of opinion that having discarded the testimony of P.W. 4 Chunnilal, P.W. 3 Girdhari and P.W. 5 Jhamku, the trial Court was not justified in convicting the appellants on the basis of the testimony of P.W. 6 Pappu Ram which, as already stated, does not carry conviction. The appeal deserves to be allowed.
13. Consequently, the appeal succeeds. The conviction of the appellants is set aside and they are acquitted of the offences charged with. If the amount of fine has been realised from Roopa Ram, the same be refunded to him.