Rajasthan High Court - Jaipur
Bhoma Ram vs State Of Rajasthan on 22 July, 1986
Equivalent citations: 1987WLN(UC)128
JUDGMENT S.S. Byas, J.
1. Since these two appeals are directed against one and the same judgment of the learned Additional Sessions Judse, Raisinghnagar dated November 13, 1981, they were heard together and are decided by a common judgment. By the judgment aforesaid, the learned Additional Sessions Judge convicted the accused Bhoma Ram under Section 302 and accused Ram Chandra and Laxmi Chand under Section 302 read with Sections 34 and 109, IPC and sentenced each of them to imprisonment for life and a fine of Rs. 1000/- in default of the payment of fine to further undergo six months' rigorous imprisonment. Accused Bhoma Ram was further convicted under Section 25 of the Arms Act, but no separate punishment was awarded to him for this offence.
2. The incident is alleged to have taken place at about 9.45 p.m. on July 10, 1980 at the bus stand, Suratgarh, in which one Madan Lal Jodhki, aged about 21 years, was shot dead by accused Bhoma Ram at the instigation of accused Ram Chandra and Laxmi Chand.
3. Briefly stated, the prosecution case, as stated during trial by the eye-witnesses Ved Prakash (PW 1), Kalu Ram (PW 2) and Om Prakash (PW 3) is that at about 9 45 p.m. they were standing on the public road running out side the main gate of the bus stand, Suratgarh. Ved Prakash and Kalu Ram had come there to board a bus to go to their village Manaksar while Om Prakash happened to be there to board a bus to go to village Kenchi. The deceased Madanlal came there on a bicycle and asked PW 1 Ved Prakash as how he was standing there and how he had failed in the examination While both of them were thus talking, the three accused Ram Chandra, Laxmi Chand and Bhoma Ram came there riding on a motorcycle. Accused Laxmi Chand alias Laxman was driving it while the remaining two Ram Chandra and Bhoma Ram were on the pillion. Ram Chandra being in between taxmi Chand and Bhoma Ram. Accused Laxmi Chand stopped the motor-cycle but kept its engine in start condition. Accused Bhoma Ram came towards Ved Prakash and Madan Lal. Accused Ram Chandra and Laxmi Chand, pointing towards Madan Lal, asked the accused Bhoma Ram to shoot Madan Lal. Accused Bhoma Ram fired the pistol at Madan Lal which hit him on the back and caused an entry wound there and the exit wound on the Sub-coastal region anteriorly on right side 2" from mid-sternal line. Madan Lal fell down with profuse bleeding from his wounds. Accused Bhoma Ram took to heels in the North side on the road while Ram Chandra and Laxmi Chand made good their escape in the South side of the road riding on the motor-cycle. There was a big commotion at the spot. The prosecution witnesses Ved Prakash, Kalu Ram and Om Prakash and some other persons ran after the accused Bhoma Ram to catch him. While running away, accused Bhoma Ram therw the pistol in a muddy pond. Those chasing him caught hold of him after some distance. They took him to the Police Station, Suratgarh, where a report Ex. P 1 of the occurrence was lodged by PW 1 Ved Prakash at about 1045 p.m. The police registered a case and arrested the accused Bhoma Ram. At the time of his arrest, four live-cartridges were recovered on his personal search concealing in the fold of his trousers. The motive alleged for the murder is that the deceased-victim Madan Lal was a servant of PW 10 Milak Ram. Accused Laxmi Chand and Ram Chandra were on inimical terms with Milak Raj and various cases were pending between them. It was due to these inimical terms that accused Ram Chandra and Laxmi Chand managed to kill Madan Lal with the aid of accused Bhoma Ram. The SHO Umed Singh (PW 11) arrived on the spot, inspected the site and prepared the site plan. He also prepared the inquest of the dead body of Madan Lal. He seized and sealed the blood-stained soil lying on the spot. The postmortem examination of the victim's dead body was conducted at about 9.00 a.m. on July 11, 1980 by PW 13 Dr. Jhanwar the then Medical Officer Incharge, Government Hospital, Suratgarh. The doctor noticed the following injuries on the victims dead body:
(1) There is a wound of entry on the IX left intercoastal space posteriorly 2-1/2" from raid line on left side of size 1 c.m. x 1 c.m., oval in shape inverted bruised margins, slight peripheral blackening was present. Direction of wound was forward, right oblique and slightly upwards.
(2) Wound of exit present on Sub-costal region anteriorly on right side 2" from missternal line, margin of wound everted bruised. Exit wound is slightly bigger in size than entry wound.
Both these wounds were communicating to each other. The doctor also noticed massive injury to right side of the liver on lower part. The doctor was of the opinion that the cause of death was injury to liver due to fire-arm leading to shock and death. The injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. The postmortem examination report prepared by him is Ex. P. 38. In consequence of the information furnished by accused Bhoma Ram one S.B.B.L. country made pistol was recovered from the muddly pond near the pump house The blood-stained clothes of the deceased were seized and sealed. Accused Laxmi Chand and Ramchandra were also arrested and the motor-cycle, on which they were riding at the time of the incident, was seized. The clothes of the deceased as well as the pistol recovered were sent to the Rajasthan State Forensic Science Laboratory, Jaipur and to the Serologist, Calcutta for examination. Human blood was found on the clothes of the deceased. One empty fire-cartridge was found in the chamber of the pistol. As per report Ex. P 43 of the State Forensic Science Laboratory, the pistol was found in working order and the empty cartridge case fired through it. On the completion of investigation, the police submitted a challan against accused Bhoma Ram, Laxmi Chand and Ram Chandra in the court of Munsifcum Judicial Magistrate, Suratgarh, who, in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed charges under Section 302 IPC and 25 of the Arms Act against accused Bhoma Ram and under Sections 302/109 and 302/34, IPC against accused Ram Chandra and Laxmi Chand. All of them pleaded not guilty and demanded trial. In support of its case the prosecution examined 14 witnesses and filed some documents. In defence, the accused adduced no evidence. Accused Laxmi Chand and Ram Chandra, who are brothers inter se, denied their presence on the spot and stated that they have been falsely implicated as they were on inimical terms with PW 10 Milak Raj. Accused Bhoma Ram, in his statement under Section 313, Cr. PC admitted his presence on the spot, but denied that he had fired the shot at the victim Madan Lal. According to him, he and the accused Ram Chandra and Laxmi Chand went to the bus stand to kill Milak Ram (PW 10). Accused Laxmi Chand fired shot at Milak Raj and gave the pistol to him. As per understanding between them, he ran away with that pistol in his hand. While running away, he threw it in the muddy pond, which he got recovered later on. On the conclusion of the trial, the learned Additional Sessions Judge found the charge duly brought home to the accused persons. The accused were consequently convicted and sentenced as mentioned at the very out-set.
4. We have heard the learned amicus curiae and Mr Doongar Singh for the appellants and the learned Public Prosecutor for the State. We have also gone through the case file carefully.
5. Before proceeding further, it may be stated that Mr. Doongar Singh and the learned amicus curiae did not challenge the opinion of Dr Jhanwar (PW 13) relating to the cause of death of the deceased-victim Madan Lal. We have also gone through his testimony carefully and find no reasons to distrust his opinion about the cause of death of the victim Madan Lal. The death of Madal Lal was, thus, not natural but homicidal.
6. During crial, the prosecution examined three eye witnesses, viz , PW 1 Ved Prakash, PW 2 Kalu Ram and PW 3 Om Prakash, each of whom has claimed to have seen the incident from the commencement to the end. The learned Sessions Judge treated them as witnesses of truth and accepted their testimony credit-worthy. On the basis of what they deposed, the learned Sessions Judge held that at the investigation, exhortation and encouragement of accused Laxmi Chand and Ram Chandra, accused Bhoma Ram fired the pistol at Madan Lal and thereby killed him. The murder was thus committed in furtherance of the common intention of all the 3 accused persons and further at the instigation of accused Ram Chandra and Laxmi Chand.
7. Mr. Doongar Singh and the learned amicus curiae addressed common arguments 'o impeach the direct testimony of the ocular witnesses. It was argued by them that none was present when the incident took place. It was further argued that even if the presence of accused Bhoma Ram is accepted on the spot, the evidence relating to exhortation and instigation against accused Ram Chandra and Laxmi Chand was falsely invented. The conviction of accused Ram Chandra and Laxmi Chand was wholly uncalled for. It was, on the other hand, contended by the learned Public Prosecutor that the trial Court was perfectly justified in treating PW 1 Ved Prakash, PW 2 Kalu Ram and PW 3 Om Prakash as witnesses of truth. The FIR was lodged promptly without any delay within an hour of the incident. A complete narration of the occurrence against all the accused persons was given in it. There was direct and positive evidence of all the three witnesses to establish that it was on the directions of the accused Ram Chandra and Laxmi Chand that accused Bhoma Ram fired the shot at Madan Lal. The murder of Madan Lal was, thus, committed at the instigation and on the exhortation of accused Ram Chandra and Laxmi Chand. We have given our anxious consideration to the rival submissions.
8. The three eye witnesses PW 1 Ved Prakash, PW2 Kalu Ram and PW 3 Om Prakash were cross examined, but their testimony remained un-shattered and unshaken on the main essentials and the role assigned to the accused persons. The three eye witnesses bear no enmity against the accused and have no soft corner for the deceased-victim. Accused Bhoma Ram has admitted his presence on the spot, though he denied that he had fired the shot at Madan Lal. It is difficult to conceive that the eve witnesses would leave the real culprit and substitute accused Bhoma Ram as the person who had fired the shot at Madan Lal. Accused Bhoma Ram has stated in his statement under Section 313, Cr. PC that it was accused Laxmi Chand who had fired the shot and after firing the shot, accused Laxmi Chand gave him the pistol. The three eye witnesses were not at all cross examined in the light of the defence raised by accused Bhoma Ram in his aforesaid statement under Section 313 Cr.PC. No suggestion was made to the eye witnesses that it was accused Laxmi Chand who had fired the shot. On a careful scrutiny of the testimony of the three eyewitnesses, there is no room for doubt that it was the accused Bhoma Ram who had fired the shot of pistol at Madan Lal and thereby killed him. The conviction of accused Bhoma Ram under Section 302, IPC is based on the formidable evidence of the three witnesses, who have unanimously stated that it was he who had fired the shot at the victim Madan Lal. His conviction remains unassailed.
9. The remaining two accused Ram Chandra and Laxmi Chand were convicted under Section 302 with the aid of and applicability of sections 34 and 109, IPC. The evidence of the three eye witnesses establishes that the three accused Bhoma Ram, Ram Chandra and Laxmi Chand came on a motor cycle. Accused Laxmi Chand was driving it while accused Ram Chandra and Bhoma Ram were on the pillion, Ram Chandra being in between Laxmi Chand and Bhoma Ram. The motor-cycle was stopped at the place where PW 1 Ved Prakash and the deceased-victim Madan Lal were standing. The other two witnesses PW 2 Kalu Ram and PW 3 Om Prakash were standing nearby them. Accused Bhoma Ram got down from the motor-cycle and went towards Madan Lal. When Bhoma Ram remained only two feet away from Madan Lal, accused Laxmi Chand and Ram Chandra said, "Here is Milki's servant Madan. Shoot him." On this command given by accused Laxmi Chand and Ram Chandra, accused Bhoma Ram fired the pistol at Madan Lal, which hit him on the back. Madan Lal fell down. All these eye witnesses were cross-examined at length, but nothing could be elicited from them which may cast any doubt on the command given by the accused Laxmi Chand and Ram Chandra to accused Bhoma Ram to shoot Madan Lal. This fact that the command was given by accused Laxmi Chand and Ram Chandra to accused Bhoma Ram to shoot Madan Lal has been mentioned in the FIR Ex.P 1 lodged hardly within an hour of the incident. Mr. Doongar Singh could not canvass any ground before us as to why these three witnesses should not be believed on this essential part of the story relating to the role assigned to accused Laxmi Chand and Ram Chandra. The circumstances also point out that accused Laxmi Chand and Ram Chandra must have accompanied the accused Bhoma Ram and brought him at the spot of the occurrence. Accused Lal Chand and Ram Chandra were on inimical terms with the deceased-victim's employer Milak Raj (PW 10). Accused Bhoma Ram had no bias or grudge against the deceased-victim. Unless he was given a command or order to kill him, he would have not committed his murder.
10. Accused Laxmi Chand and Ram Chandra were convicted with the aid of Sections 34 and 109. IPC Section 34, IPC does not create a distinct offence. It only lays down the principle of joint criminal liability on the ground that where two or more persons intentionally commit an offence jointly, it is just the same thing as if each of them had done it individually, The existence of common intention is largely inferential. Surrounding circumstances, conduct of the culprits preceding the commission of the offence during its commission and subsequent to commission furnish the materials from which inference is to be drawn as to whether the offence was committed in furtherance of the common intention of the culprits. The words spoken by the culprits, the instigation, exhortation and encouragement given by them before and during the commission of the crime are the usual factors from which the inference is to be drawn whether the crime was the out-come of the common intention of the all and the common intention of one was shared by the others. For the applicability of Section 34 IPC, the intention to commit the offence must be common to all the culprits and it must be shared by each of them. In Jai Narain v. State of Bihar ), it was observed by their Lordships in para 10 of the judgment that where an offence is committed on the instigation of one of the culprits, that culprit giving the instigation can be safely convicted for the main offence with the aid of Section 34, IPC.
11. Section 109, IPC defines abetment. Among other things, it speaks that a person abets the doing of a thing, who instigates any person to do that thing. Instigation in law, thus, indicates some active suggestion such as command, order exhortation etc. to the commission of the offence. It is a direct incitement by one to the other to commit the crime. Exhortation by one culprit to the other to commit the offence, constitutes abetment.
12. In the instant case, the evidence of the eye witnesses establishes that accused Laxmi Chand and Ram Chandra said to accused Bhoma Ram, "Here is Milki's servant Madan. Shoot him." The words "shoot him" are clearly indicative that they wanted the deceased to be killed and finished for ever. The pistol was fired by accused Bhoma Ram only after the aforesaid direction, order command or exhortation was given to him by accused Laxmi Chand and Ram Chandra.
13. It was argued by Mr. Doongarsingh that the evidence as regard to the verbal exhortation should not be readily believed. Oral evidence relating to exhortation is of weak type and the Court should be reluctant to accept that evidence. In support of his contention, Mr. Doongar Singh placed reliance on Jainual Haque v. State of Bihar . It was observed by their Lordships that the evidence of exhortation is by nature weak and conviction for abetment should not be recorded without clear, cogent and reliable evidence in this respect.
14. Here in the instant case, as discussed above, there is the direct and positive evidence of the three eye witnesses that accused Laxmi Chand and Ram Chandra gave command to accused Bhoma Ram to shoot Madan Lal. It was in pursuance to this command that accused Bhoma Ram fired fired the shot at Madan Lal. In view of the unanimous and categoric statements of the three eye witnesses, we are unable to accept the contention of Mr. Doongar Singh. The evidence of the three eye witnesses relating to exhortation is clear, cogent and reliable. The conviction of the accused Ram Chandra and Laxmi Chand under Section 302 with the aid and applicability of Sections 34 and 109, IPC is justified.
15. The appellants were rightly convicted and sentenced. No interference is called for.
16. In the result, we maintain the conviction and sentence of the appellants and dismiss their appeals.