Rajasthan High Court - Jodhpur
Suresh Kumar & Anr vs State on 31 May, 2011
Author: Govind Mathur
Bench: Govind Mathur
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
J U D G M E N T
Suresh Kumar & Anr. vs. State of Rajasthan
(1)DBCr.Appeal No.697/2003
Prabhu Ram vs. State of Rajasthan
(2)DBCr.Appeal No.927/2003
Against the judgment dated
9.5.2003 passed by Additional
Sessions Judge (Fast Track),
Sirohi, in Sessions Case
No.131/2001 (48/2001).
Date of Judgment :: 31st May, 2011
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE NARENDRA KUMAR JAIN
Mr. Ashok Upadhyay)
Mr. S.D.Purohit ) for the appellants.
Mr. KR Bishnoi, Public Prosecutor, for the State.
....
BY THE COURT : (PER HON'BLE MATHUR,J.)
These appeals are directed against the judgment dated 9.5.2003 passed by learned Additional Sessions Judge (Fast Track) Sirohi in Sessions Case No.131/2001. The trial court by accepting the 2 prosecution case convicted appellant Suresh for the offence punishable under Section 302 Indian Penal Code and appellant Prabhu Ram for the offence punishable under Section 302/34 Indian Penal Code. Both the appellants are sentenced to undergo life term imprisonment with a fine of Rs.5000/- and further to undergo one year more rigorous imprisonment in default to pay fine.
The facts necessary to be noticed for adjudication of these appeals are that on basis of a telephonic message given by Juharmal (PW-15) on 3.6.2001 at 06:15 PM an entry was recorded in the daily diary at Police Station Sheoganj. As per the information (Ex.D/1) recorded, Juharmal while undergoing to Badla from Dhubana saw a car being No.RJ-19-T-1015 going towards Badla in high speed. Suresh, Ramesh and one more person were sitting in that car, beside the driver. Suresh and others after giving stab wounds to Ramesh threw him out of the car in a pit on road side. The car then proceeded in high speed towards Dhubana. A telephonic information of the incident was also given to father of Ramesh.
After drawing the information, the Station House Officer Jairam Parihar (PW-19) reached at the spot of occurrence. A written report Ex.P/38 was submitted by Shri Shankarlal, and that was registered as first information report of the incident. On basis 3 of the written report an FIR of the incident mentioned above was registered. As per the report Ramesh (deceased) son of Shankarlal and his employee Suresh went to Guda Balotan on 3.6.2001 by motorcycle for recovery. Shankarlal (PW-18) received a telephonic information at home from Juharmal that he saw Suresh, Ramesh and one other person in car wherefrom Ramesh was thrown out in a pit close to road side. Juharmal also saw Suresh giving knife blows to Ramesh. It was specifically stated that due to some money transaction Suresh, Prakash and Prabhu Ram conspired and killed Ramesh.
After regular investigation police submitted its report before the court competent charging Suresh, Prakash and Prabhu Ram for the offence punishable under Section 302 and in alternative 302/34 Indian Penal Code. On denial of charge regular trial was conducted.
During the course of trial prosecution supported its case with the aid of 19 witnesses and by exhibiting documents Ex.P/1 to Ex.P/69. As per provisions of Section 313 Cr.P.C. the accused appellants were made enable to explain the circumstances appearing against them in the prosecution evidence. The appellant Suresh termed the entire evidence against him as false, and the appellant Prabhu Ram while refuting the adverse 4 circumstances tried to explain those with assertion that he was falsely implicated in the case due to his money outstanding against Anop Singh (PW-11). Documents Ex.D/1 to Ex.D/4 were produced by the accused appellants in their defence.
The trial court after considering the evidence available acquitted Prakash, but convicted
the present appellants. The conviction of appellant Suresh is based on the evidence given by eye witness PW-15 Juharmal, PW-19 Jairam (the investigating officer), motive gathered on basis of the evidence given by PW-18 Shankarlal, recovery of weapon of offence and other articles, serological examination and the medical evidence adduced. So far as appellant Prabhu Ram is concerned, he was convicted with the aid of Section 34 Indian Penal Code on basis of the evidence given by Juharmal, Jairam Parihar, recovery of currency notes amounting to Rs.1500/- (blood stained) and other articles those are the car used in the crime and matting of the car.
In appeal, the argument advanced by counsel for appellant Suresh is that the evidence given by witness Juharmal is not at all trustworthy and reliable as he saw the incident from the distance of 300 ft. i.e. practicably impossible. It is asserted that the conduct of this witness was also not normal and that creates a doubt to the extent that he was 5 implanted as eye witness in the matter. According to counsel for appellant Suresh this witness at the first informed police and also to Shankarlal (father of deceased) but no effort was made by him to save Ramesh and also that this witness even not thought it proper to stay at the spot till coming of police or relatives of deceased. In alternative an effort is also made to bring the offence committed by appellant Suresh within the purview of the IVth exception of Section 300 Indian Penal Code to place the same as an offence punishable under Section 304 part-I Indian Penal Code.
On examination of record, we do not find any force in the appeal so far as that relates to this accused. The death of Ramesh was certainly homicidal one, as his person as per medical evidence was having 24 injuries including several incised stab wounds. The cause of death given was injuries to head, abdomen (perforated stab wounds) causing haemorrhage, shock and death.
The eye witness Juharmal (PW-15) in quite definite terms stated that Suresh and Prakash came down from rear door of the car and he saw them stabbing deceased Ramesh and throwing him to road side pit. He then saw the body in the pit from the distance of about five feet. Immediately subsequent thereto he informed to police telephonically and also to father of the deceased. The deceased and his father were 6 known to this witness but he was not having any relation with them. The little acquaintance was because of business activities. True it is, this witness did not make effort to provide further aid to the victim but that in no manner effect the prosecution case adversely. This witness was quite confident about the fact that the body thrown from car was having no life, thus, he informed the police about lying of a dead body in a pit. As such, no occasion was there for him to call medical aid. The fact that this witness did not stay at the spot till coming of police is also not of such nature that may be sufficient to hold him unbelievable or untrustworthy or in any manner his conduct may be termed as highly unnatural to the human behaviour. We do not find any reason to disbelieve narration of specific facts made by this witness on oath.
In addition to the statements of eye witness the recovery of blood stained knife, blood stained clothes of the accused and also the currency notes (blood stained) on basis of the information given by accused Suresh and further matching of blood groups of blood stains available on all the recovered articles with the blood stains available on clothes of the deceased leaves no doubt about his involvement in the crime. The findings of trial court, thus, suffers from no error, to the extent that held involvement of accused Suresh in the crime concerned.
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The nature and the number of injuries, the weapon used in causing injury and further throwing of dead body on road side are the facts sufficient to say that the instant one is not a case touching exceptions carved out under Section 300 Indian Penal Code. The premeditation is apparent. There was no sudden provocation and the number of injuries clearly establish undue advantage taken and the cruelty adopted. The trial court, therefore, rightly held the accused appellant Suresh guilty for commission of an offence punishable under Section 302 Indian Penal Code.
The other accused appellant Prabhu Ram as per prosecution was driving the car. The car, as per witness Anop Singh (PW-11) was originally under the ownership of accused Prabhu Ram and that was subsequently sold to him. Accused appellant Prabhu Ram after selling the car was working with this witness as driver of the same car. The eye witness Juharmal (PW-
15) was not knowing this accused and for this reason only his name was not disclosed in the information given to the police on basis of which entry (Ex.P/38) was made in daily diary at police station Sheoganj. As stated by PW-15 Juharmal and PW-19 Jairam (the investigating officer), no identification of this accused was made during the course of investigation. PW-15 Juharmal also stated that some villagers told 8 him the name of driver as Prabhu Ram, but this witness failed to answer the name of that villager. The possibility of seeing accused Prabhu Ram by this witness at some occasion subsequent to the occurrence, may that be the day of evidence, any other day in court or at police station or even during the judicial custody cannot be overruled in absolute.
The other evidence available against this witness is recovery of currency notes having blood stains, the car and its matting having blood stains. The car was recovered on 4.6.2001, the day on which appellant Prabhu Ram was arrested. As a matter of fact the arrest was made by tracing the car, on basis of the number given in telephonic information and the first information report. The car was recovered from the town Sheoganj at 06:30 PM and by a separate report accused appellant Prabhu Ram was also arrested. From the car a matting was also recovered and that was having blood stains. As per Forensic Science Laboratory report (Ex.P/65) the blood stains available on matting ('dari') was having blood group "A" matching with the blood group of the stains found on knife (weapon of offence), clothes of the deceased and the clothes of accused persons. However, this evidence is not conclusive to establish involvement of Prabhu Ram, though it certainly indicate the use of car in crime. Suffice it to note that witness Anop Singh (PW-
11) categorically accepted that he was owner of the 9 car and that was driven by Prabhu Ram, but Prabhu Ram extended explanation for his false implication by Anop Singh, due to some money outstanding.
The evidence now available against accused Prabhu Ram is of the recovery of currency notes having blood stains. This recovery was made on 10.6.2001 on basis of the information said to be given by accused in presence of independent persons viz. Jagdish son of Manaram and Mohanlal son of Ramlal. However, these two independent persons were not produced in evidence. We failed to understand that when the recovery was made at the instance of accused Prabhu Ram in presence of two independent persons viz. Jagdish and Mohanlal then what prevented the prosecution from producing those persons in witness box. It is pertinent to note that Mohanlal and Jagdish were cited as witnesses in the list of witnesses but they were not called for in witness box at the instance of the prosecution itself. The recovery of the currency notes is supported with the aid of evidence adduced by PW-12 Rajesh Bafna. PW- 12 Rajesh Bafna, an Assistant Sub Inspector at Police Station Sheoganj stated that he recovered the sum of Rs.1500/- from an 'atechi' kept in a room at the house of accused Prabhu Ram at village Chuli on 10.6.2001. This witness also states that the room wherefrom currency notes were recovered was open and the entire house was also open. As such the recovery of the currency notes was admittedly made from the open place 10 and that appears to be lying abandoned at least from the date of arrest of accused Prabhu Ram. The recovery of the currency notes in a tune of Rs.1500/-, thus, is not sufficient upto the required degrees to convict appellant Prabhu Ram. The case of the prosecution, thus, suffers from a reasonable doubt to the extent it involves accused appellant Prabhu Ram with the crime in question. The doubt existing demands acquittal of this accused.
Accordingly, the appeal preferred by accused Suresh is dismissed. His conviction and sentence as awarded by the trial court are affirmed.
The appeal preferred by accused appellant Prabhu Ram is allowed. The judgment impugned is set aside to the extent it relates to conviction of accused appellant Prabhu Ram. Accordingly, he is acquitted from the charge i.e. of Section 302/34 Indian Penal Code. Accused appellant Prabhu Ram be released from judicial custody forthwith, if he is not otherwise required in any other case.
( NARENDRA KUMAR JAIN ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.