Rajasthan High Court - Jaipur
Kajod vs State on 16 September, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR.
J U D G M E N T
(1) D. B. Cr. APPEAL NO. 1684/2003.
Kalu & ors. vs. State of Rajasthan
under Section 374 Cr.P.C. against the judgment dated 29.9.2003 passed by Additional Sessions Judge (Fast Track) Tonk in Sessions Case No. 46/2003
&
(2) D.B. Cr. APPEAL No. 1683/2003.
Kajod Vs State of Rajasthan
under Section 374 Cr.P.C. against the judgment dated 29.9.2003 passed by Additional Sessions Judge (Fast Track) Tonk in Sessions Case No. 46/2003
Date of Judgment: 16th September, 2013.
PRESENT
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MRS. JUSTICE NISHA GUPTA
Mr. Mohammad Rahil Kalam and Mr Nawab Ali Rathore, for the accused-appellants.
Mr Javed Choudhary, Public Prosecutor.
BY THE COURT (PER HON'BLE NISHA GUPTA, J):
REPORTABLE Both these appeals are related to same incident and are filed against a common judgment hence, they are being decided by this common judgment.
2. These appeals under Section 374 Cr.P.C., have been filed against the judgment passed by Additional Sessions Judge (Fast Track), Tonk in Sessions Case No. 46/2003 whereby the appellants have been convicted and sentenced as under:
Appellant Kalu Under Section 302 readwith 34 IPC:- to undergo life imprisonment and fine of Rs. 100. In default of payment of fine, he has to further undergo three simple imprisonment;
Appellant Kamlesh Under Section 302 readwith 34 IPC:- to undergo life imprisonment and fine of Rs. 100. In default of payment of fine, he has to further undergo three simple imprisonment;
Appellant Mukesh Under Section 302 readwith 34 IPC:- to undergo life imprisonment and fine of Rs. 100. In default of payment of fine, he has to further undergo three simple imprisonment;
Appellant Kajod Under Section 302:- to undergo life imprisonment and fine of Rs. 100. In default of payment of fine, he has to further undergo three simple imprisonment
3. The brief facts of the case giving rise to these appeals are that PW/11 Prabhulal has lodged a written report Ex.P/10 at Bhojpura where the incident has taken place and it has been alleged in the written report that on 25.2.2003 at about 10.00 AM his nephew Sheojilal has visited the place to see his Aunt, at that time, Kajod, Kalu, Mukesh and Kamlesh all having Axe and Phawara in their hands assaulted him and as a result of injuries, Sheojilal died. On this information, FIR No. 22/2003 has been registered for the offence under Section 302 IPC. After investigation charge sheet has been filed which was committed to the Court of Sessions and transferred to Additional Sessions Judge (Fast Track), Tonk.
4. After hearing the parties, the learned trial Court framed charges against the appellants for the offence under Section 302, 341 IPC in alternate under Section 302 readwith 34 IPC. The prosecution has examined PW.1 Shri Ghashi Lal, PW.2 Shri Sukhdev, PW.3 Shri Dharmendra Kumar Nayak, PW.4 Jagdish Prasad, PW.5 Vinod Kumar, PW.6 Smt. Pushma, PW.7 Smt. Pana, PW.8 Shri Moolchand, PW.9 Shri Ramswaroop, PW.10 Shri Ramesh Kumar, PW.11 Shri Prabhu Lal, PW.12 Shri Chhotu, PW.13 Shri Madan Lal, PW.14 Smt. Kali, PW.15 Smt. Badam, PW.16 Dr. Arvind Luniwal, PW.17 Shri Girjesh, PW.18 Shri Kamlesh, PW.19 Shri Ghashi Lal, PW.20 Shri Jabant, PW.21 Shri Bhanwar Singh, PW.22 Shri Gopal Lal, PW.23 Shri Mauzi Ram, PW.24 Shri Tulsi Ram to support his case and also relied on 34 documents whereas defence has also produced DW.1 Shri Ram Phool, DW.2 Shri Raju, DW.3 Shri Ram Niwas, DW.4 Shri Kalyan, DW.5 Shri Suraj, DW.6 Shri Babu Lal, DW.7 Shri Mauzi Ram, DW.8 Shri Sheoraj, DW.9 Shri Jagdish, DW.10 Shri Shiv Dayal, DW.11 Shri Ladu, DW.12 Smt. Saroopi, DW.13 Smt. Geeta, DW.14 Smt. Maina, DW.15 Smt. Kanta, DW.16 Shri Ramawatar, DW.17 Shri Ratan Lal, DW.18 Shri Kishan Lal, DW.19 Shri Ramawatar S/o Shri Nanu Lal, DW.20 Shri Hemraj, DW.21 Shri Kalu, DW.22 Shri Ram Kuwar and DW.23 Smt. Barji and also relied upon six documents. Statements of accused persons have been recorded under Section 313 Cr.P.C. After conclusion of trial, the present appellants have been convicted and sentenced, as referred above, hence these appeals.
5. The contention of the present appellants is that the whole story is concocted one. In fact, Sheoji and others came there forming unlawful assembly and they assaulted Kajod and in the assault, Sheoji has suffered injuries and to verify this fact number of witnesses have been produced. There was no common object of the appellants to kill the deceased, none of the witnesses are eye-witnesses of the incident as they have alleged to be reached on the place of incident, after hearing cries so it was not possible for them to saw the occurrence, all are chance witnesses and near relatives. The house of Prabhulal (PW/11) is far away from the scene of occurrence and it was not possible to see the occurrence or to hear the cries. The incident has taken place in day light but no independent witness of the village came forward to give evidence, the whole prosecution story is doubtful, hence the appellants be acquitted of the charges and furthermore, it has been submitted that for accused appellant- Mukesh, deceased stated that he was carrying lathi and deceased has not suffered any blunt-weapon injury, hence his presence is doubtful and he cannot be attributed common intention.
Per contra, the contention of the learned Public Prosecutor is that PW/14 Smt. Kali, PW/6 Smt. Pushma are the eye-witnesses of the incident and PW/7 Smt. Pana and PW/15 Smt. Badam has also corroborated the story. Weapon of offence have also been recovered from the possession of the appellants which found to be blood stained. The cause of death of the deceased is injuries caused by sharp edged weapon on the neck and court below has rightly appreciated the evidence. There is no need to interfere in the reasoning and conclusion arrived at by the court below.
6. Heard the learned counsel for the appellants and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case.
7. PW/11 Prabhu Lal has lodged the report stating therein that all the appellants were having weapons in their hands, they assaulted Sheojiram who scummed to death. Prabhu Lal has been examined as PW/11. He has stated that he saw Shejoram left dead near the Neem Tree and appellants were there. Kajod was having sword. Kalu was having Axe and Kamlesh was having Phavara whereas Mukesh was having stick in his hand and his further contention is that his mother and sister Kali were also there. He has also testified the injuries of the deceased that he has suffered injuries on head, face and legs and his neck was cut. His further contention is that he went to report the matter and immediately Ex.P/10 report has been lodged.
8. The contention of the appellants is that no overact has been narrated in Ex.P/10 and even the presence of eye-witnesses has not been narrated. In this regard, the contention of the learned Public Prosecutor is that immediately after the occurrence when Prabhulal has saw the deceased lying in a pool of blood, he rushed to report the matter and if overact has not been narrated in FIR, it could not be looked with suspicious eyes and presence of eye-witnesses has been narrated in proceedings before the police that Kali and Pushma were there and immediately after presenting the FIR, the names of eye-witnesses have been disclosed which also forms the part of First Information Report and only on this fact that overact has not been narrated in the FIR, the whole prosecution case could not be thrown out as First Information Report is not the encyclopedia of the incident and court cannot shut the eyes on the fact that immediately after seeing the Shejoiram lying dead, Prabhulal rushed for presenting the First Information Report and at that time, it could not be expected from a person to give comprehensive or composite details.
9. PW/14 Kali has stated that Sheojiram came to Bhojpura to see his Bhuaa and at about 10.30 in the morning he was returning back to his village and she and her mother were also going to her brother's place when they reached near the house of the appellant Kajod they saw that Kajod has inflicted sword blow on the neck of Sheojiram and Kalu has inflicted Axe blow on the head and Mukesh and Kamlesh have also inflicted injuries to him. PW/6 Pushma who is the mother of PW/14 Kali has also stated the same story that all the appellants have inflicted injuries to Sheojiram and Sheojiram died on the spot.
10. The contention of the appellants is that Kali PW/14 and Pushma PW/6 cannot be said to be eye-witnesses as in the cross-examination, she has admitted the fact that house of Kajod is one Km. away from their house and it was not possible for them to hear the voice or to see the occurrence from their house and Pushma (PW/6) is lady of aged 70 years. She herself admits that she could not walk properly and her eye-sight is also weak. Hence both these witnesses are planted witnesses and that is why they have not been named in the FIR. As stated earlier in proceedings before the police which is after presenting the FIR, names of both these witnesses have been mentioned, hence without delay the name of eye-witnesses have been disclosed and furthermore, both these two witnesses have stated that they have scene the occurrence. It is true that PW/14 Smt. Kali has stated in her cross-examination that appellant Kajod's house is one Km. away and Pushma, PW/6 has also admitted the fact but both these witnesses are illiterate witnesses and whether they can understand the measurements has not been shown. PW/21 Shri Bhanwar Singh, the Investigating Officer has been cross-examined on the point of distance of Prabhulal's house from that of scene of occurrence and he has categorically stated that house of Prabhulal is only 60 steps away from the scene of occurrence and he has further deposed that he himself has visited the house of Prabhulal and know the distance and further he has stated that in Ex.P/2, site plan at `F' place, the locality of Nayak's has been shown and Prabhulal and others are also living in the same locality which clearly undo the objection raised by the counsel for the appellants and it can safely be concluded that it was possible for PW/14 Kali and PW/6 Pushma to see the occurrence. The statements of these witnesses have been recorded on the day of incident without any delay in which it has been stated that they saw the occurrence.
11. PW/6 Pushma has stated that she could not walk easily and her eye-sight is also weak but inspite of the fact she has stated that she saw the occurrence. PW/7 Pana who is daughter-in-law of PW/6 Pushma has stated that at the time of incident she was finishing the floor of his house and Pushma (PW/6) and Kali (PW/14) were in the (pole) entrance gate and Kali was taking Pushma outside which also corroborates the statement of Kali that they were going to their brothers place. Other witnesses has also stated that between them and Kajod's house there are only 2-5 houses. PW/6 Pushma has also stated that from scene of occurrence their house is at a distance of 2-3 houses which nullifies the objection of counsel for the appellants that it was not possible for Kali and Pushma to hear the cries of Sheojiram or to see the occurrence.
12. PW/7 Pana who is aunt of Sheojiram and Sheojiram came there to meet her has also stated that when after hearing the cries, she reached at the spot, she saw that Sheojiram was lying there and his neck was cut-off and Kajod, Kalu, Kamlesh and Mukesh were there. With weapons in their hands, she admits that she has not scene the occurrence of inflicting the injuries but she has narrated the fact that appellants were there and having weapons in their hands and Sheojiram was lying there in pool of blood and she has also stated that Pushma (PW/6) and Kali (PW/14) were there before her and Badam (PW/15) also reached there.
13. PW/15 Badam has stated that at about 10.00 AM, he was going to have water and on hearing the cries and seeing that Pushma (PW/6) and Kali (PW/14) are running, he saw that Kajod inflicted sword blow on the neck of Sheojiram and Sheojiram has also suffered injuries on his hand, head and legs. He has also categorically stated in his cross-examination that Kali (PW/14) reached the place of occurrence as she ran away leaving behind Pushma (PW/14) thereafter she reached at the spot and hence, these four witnesses have categorically stated that Kajod has inflicted sword blow on the neck of the deceased and others have also inflicted injuries having weapons in their hands.
14. The contention of the counsel for the appellants is that PW/7 Pana and PW/15 Badam are not the eye-witnesses, they are relative witnesses and chance witnesses, hence their testimony could not be relied. It is true that both these witnesses are relative witnesses, but their testimony cannot be discarded only on this count that they are related to the deceased. It has also been submitted that PW/7 Pana is not the eye-witness as she has stated that no injury was caused to Sheojiram in her presence but she has categorically stated that when she reached at the spot, she saw that Sheojiram lying dead in pool of blood. His neck has been cut and accused appellants were there. The contention of the prosecution is that evidence is part of res gestae and his contention is that it is an exception to general rule wherein hearsay evidence became admissible. PW/7 Pana has reached the place of occurrence just after the incident she has scene the deceased lying and accused are standing with weapons and reliance has been placed on Krishan Kumar Malik Vs. State of Haryana (2011) 7 SCC 130 wherein it has been held as under:
Section 6 of the Act has an exception to the general rule where-under, hearsay evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter.
Further reliance has been placed on State of Maharashtra Vs. Kamal Ahmed Mohammed Vakil Ansari & ors., AIR 2013 SC 1441 wherein in Para 29 it has been held:
In our considered view, the test to determine admissibility under the rule of res gestae is embodied in words are so connected with a fact in issue as to form a part of the same transaction. It is therefore, that for describing the concept of res gestae, one would need to examine, whether the fact is such as can be described by use of words/phrases such as, contemporaneously arising out of the occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like. It is difficult for us to describe illustration (a) under Section 6 of the Evidence Act, specially in conjunction with the words are so connected with a fact in issue as to form a part of the same transaction, in a manner differently from the approach characterized above.
15. Here in the present case PW/7 Pana has reached the place of occurrence just after the incident, she has seen the deceased lying. She has also testified his injuries and presence of the appellants, hence her spontaneous reaction to a fact is admissible as per Section 6 of the Evidence Act and evidence of PW/7 Smt. Pana also corroborates the evidence of eye-witnesses PW/14 Kali, PW/6 Pushma and PW/15 Smt. Badam. The presence of PW/15 Badam is natural as she is residing in the same locality and came out from her house to have the water and her statement under Section 161 Cr.P.C., has been recorded on the same day and there was no room for any concoction.
In defence 23 witnesses have been produced and it has been stated that deceased with other members after forming unlawful assembly assaulted Kajod but this defence has no legs as Kajod has not suffered any injury and if the deceased was the attacker, how he has suffered a number of injuries, has not been stated, hence story of defence is totally improbable and baseless.
16. The contention of the counsel for the appellants is that site-plan (Ex.P/2) has been prepared at the instance of PW/11 Prabhulal but presence of eye-witnesses have not been shown in it and it has not been prepared at the instance of eye-witnesses. Prabhulal was there who has presented the First Information Report and on his instance, site plan has been prepared. There was no need to prepare it in presence of the eye-witnesses. Narration as regards to presence of eye-witnesses could not be shown in the site-plan as site-plan is the narration of the facts which have been observed by the Investigating Officer. Any narration of facts on the basis of statements of witnesses is not an admissible evidence and reliance has been placed on Tori Singh & Anr. Vs. State of Uttar Pradesh, AIR 1962 SC 399 wherein it has been held as under:-
A rough sketch map prepared by the sub-inspector on the basis of statements made to him by witnesses during the course of investigation and showing the place where the deceased was hit and also the places where the witnesses were at the time of the incident would not be admissible in evidence in view of the provisions of S.162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot but any mark put on the sketch map based on the statements made by the witnesses to the sub-inspector would be inadmissible in view of the clear provisions of S. 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. Therefore, such marks on the map cannot be used to found any argument as to be improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketch-map.
17. In the light of the above any narration of the facts based on the statement of witnesses is inadmissible and argument of the counsel for the appellants in this regard does not seem sound.
18. The other evidence against the appellants is that of recovery of weapon. PW/21 Bhanwar Singh, Investigation Officer has testified that at the instance of Kajod, sword, at the instance of Kalu, Axe and at the instance of Kamlesh, Phavara and at the instance of Mukesh, stick have been recovered and all these weapons have been sent for State Forensic Laboratory. Ex.P/38 has been placed on record which clearly exhibits that in Sword, Phavara and stick, human blood has been found which also connects the appellants with the crime.
19. PW/16 Dr. Arvind Luniwal has conducted the post mortem of the deceased and it was found that deceased has suffered 10 injures out of which injury No.8 on neck was sufficient in the ordinary course of nature to commit death and it has been opined by the Board that cause of death is hemorrhage due to excessive bleeding including cutting of both jugular bones and carotid arterials and injury was sufficient to cause death in its ordinary course of nature and deceased has also suffered two contusions on his left thigh which were of blunt weapon and on the stick recovered at the instance of Mukesh, human blood has been found.
20. The contention of the counsel for the appellants is that the prosecution witnesses has stated that when police reached the spot, accused persons were present there with weapons and they have been arrested on the spot and recoveries has been made after two to three days which caste a shadow on the evidence of recovery. It is true that some of the witnesses have stated that when police reached at the spot, the accused were present there but PW/21 Bhanwar Singh has stated that on anonymous phone-call, he reached at the spot where Ex.P/10 -written report has been presented by PW/11 Prabhu Lal and he has started the investigation, he has denied the fact that accused were there at that time and in FIR (Ex.P/10), it has also been specifically stated that after the incident, the accused ran away and it is also a natural course of conduct. The further contention of the Investigation Officer is that he arrested the accused and on their information and instance, weapons have been recovered, hence the statement of some of the witnesses that accused were present at the spot when police arrived could not be accepted and it does not caste any suspicious on the evidence of recovery.
21. The contention of the counsel for the appellants is that alleged incident has taken place in day light in the middle of the village, but no independent witnesses have been produced. The explanation has been given by the Investigating Officer himself that none was ready to give statement as they were scared of the appellants and it is not uncommon that common man does not want to indulge themselves in court proceedings. The explanation of the witnesses seems to be sound and absence of eye-witnesses does not caste any shadow on the veracity of the prosecution.
22. The cloths of the deceased and that of appellants have also been seized vide Ex.P/12 and P/13 and they have also been sent for chemical examination and human blood has been detected and furthermore on sword, Blood Group `A' has been detected which is also the blood group found on the cloths of deceased as well as on the cloths of Kajod, blood Group `A' has been found which also corroborates the ocular evidence presented by the prosecution.
In the light of the above, eye-witnesses have categorically supports the prosecution evidence, First Information Report has been lodged instantaneously, other neighboring witnesses PW/15 Badam and PW/7 Smt. Pana has also supported the story, evidence of Pana (PW/7) is relevant in the light of principle of res gestea, ocular evidence has been corroborated by the medical evidence, recovery of weapon and with the report of Forensic Science Laboratory.
23. The court below has rightly came to the conclusion that the prosecution has proved the offence against the appellants beyond reasonable doubt.
Consequently, both these appeals are dismissed.
(NISHA GUPTA),J. (MOHAMMAD RAFIQ),J. gandhi/ All corrections made in the judgment/ order have been incorporated in the judgment/ order being e-mailed. BM GANDHI Personal Assistant