Rajasthan High Court - Jaipur
Khera And Ors. vs State Of Rajasthan on 8 August, 1990
Equivalent citations: 1990(2)WLN60
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT B.R. Arora, J.
1. These two appeals are directed against the judgment dated 29th of November, 1976 passed by the Additional Sessions Judge, Ajmer, Camp Jalore, convicting the appellant, Under Section 302, IPC.
2. The appellants were tried by the learned Additional Sessions Judge, Jalorc, Under Section 302/34, IPC, who after trial, convicted the appellants Kana, Khora and Chena, for the offences Under Section 302, IPC and awarded sentence of life imprisonment and a fine of Rs. 2000/- each and in default of payment of fine, the accused-appellants were further to undergo six months RI.
3. The prosecution case, as put up in the FIR which was lodged by Khian at Police Station, Sanchore, on 1st March, 1976, is that the informant Khian was informed by his son Ramlal that he along with his uncle Sajan were coming to their Dhani after taking their meals at the residence of Chana. When they reached near the field of Kishna; the three accused persons who were hiding themselves behind the Akra bus has came out and inflicted injuries on the head of Sajan Khera was armed with lathi, Chena was armed with Table and Kana was armed with Gupto. After receiving these injuries Sajan fell down and Ramlal than ran away and came to the Dhani of his father Khian and informed his about the incident. Ramlal identified these accused persons as he was carrying a torch with him. On receiving this information, Khianram, Fuaram, Homaram, Ramlal son of Khianram and Ramlal son of Bhianram went towards the scene of the occurrence. Ramlal, Khian and Fua reached the scene of the occurrence first and the remaining persons reached afterwards. On enquiry, Sajan told that Khera, Chena and Kana inflicted injuries to him. On the basis of this report case Under Section 302 IPC was registered against them (accused). The police, after necessary investi-gation presented the challan and the accused-appellants were tried for offence Under Section 302 IPC.
4. The prosecution ia support of its case examined 11 witnesses. P.W. 1 Khian is the informant who lodged the First Information Report after receiving information of the incident from his son. P.W. 2 Ramlal, who was with the deceased at the time when the incident took place P.W. 1 is also witness to the dying declaration. P.W. 2 Ramlal is the only eyewitness in the case and he is also a witness to the dying declaration. P.W. 3 is Dr NT. Hirani who conducted the post mortem examination of the deceased. P.W. 4 is Bhima who went to the scene of the occurrence along with P.W. 1 Khian. P.W. 5 is Fuva who is witness to the dying declaration. P.W. 6 is Idansingh who went to the scene of the occurrence in a carnal cart, after the incident had taken place and saw injured Sajan lying on the ground crying. P.W. 7 is Mohansingh who was ASI posted at police Station, Sanchore, at the relevant time. P.W. 8 is Mohanlal, SHO, who conducted the investigation. P.W. 5 is Constable Jalam Singh are the two motbir witnesses. The accused examined 2 witnesses in defence, P.W. 1Kishnaram and P.W. 2 Trjaram.
5. The learned Additional Sessions Judge relied upon the testimony of eye witnesses P.W. 2 Ramlal, the dying declaration made by the deceased score P.W. 1 Khianram P.W. 2 Ramlal and P.W. 5 Fuaram. The learned Additional Sessions Judge also relied upon the recoveries of the weapon of offence, which also contained human blood. The weapons of offence were recovered at the instance of the accused persons. The learned trial court disbelieved the defence version and by its judgment dated 29th of November, 1976, convicted and santenced the appellants as mentioned above
6. Agrrieved with the judgment dated 29th of November, 1976 passed by the learned Sessions Judge, Ajmer (Camp Jalore) the appellants preferred these two appeals, D.B. Cr. Appeal No. 20A/77 was preferred by the appellants though their Advocate Shri B.R. Purohit. The appellants also preferred an appeal against their conviction and sentence passed by the learned Additional Sessions Judge through jail which was numbered as D.B. Cr Appeal No 76/77. As both these appeals arise out of the same judgment, therefore, we have taken up both these appeals together.
7 Mr. Doongar Singh, learned Counsel for the appellants has submitted that the lower court was not justified in convicting and sentencing the appellants on the basis of the testimony of P.W. 2 Ramlal, who is a chance witness and whose presence at the scene of occurrence is doubtful). His further submission is that witness Ramlal is son of Khianram and nephew of Sajan and thus he is an interested witness and his testimony also does not find support from the medical evidence. Mr. Doongar Singh further submitted that though according to Ramlal, the accused had taken meals with him but the stomach was found empty. His other contention is that as the incident was taken place in the night, therefore, at that time there was no possibility of identifying the assailants and to over-come with this difficulty the torch has been introduced; otherwise, if the witness Ramlal had gone to Chaina Ram's house in the morning for labour, there was no question of taking the torch with him.
8 The learned Counsel for the appellants has also challenged the veracity of the dying declaration on various grounds, as according to him, the deceased/after receiving the injuries, was not in a position to make any statement. P.W. 3 Dr. N T. Hirani has specifically mentioned that after receiving these injuries, the deceased would have gone into come within 2 or 3 minutes and he would have survived only for 5 to 10 minutes. On the basis of the statement of the doctor, the contention of the learned Counsel for the appellants is that when Ramlal, along with some other persons, come to the scene of the occurrence, at that time Sajan had died and there was no possibility of paking the statement by Sajan.
9. The learned Public Prosecutor on (he other hand has supported the judgment passed by the Additional Sessions Judge. According to him, P.W. 2 Ramlal is a reliable witness who accompanied the deceased from the house of Chanaram and while coming from the house of Chanaram, when they reached near the field of Kishna, the deceased was assaulted by the accused persons and on receiving the injuries, he fall on the ground and after some time broathed his last. According to the Public Prosecutor, P.W. 2 Ramlal is supported by P.W. 1 Khian and P.W. 5 Fuaram. The learned Public Prosecutor argued that there is a dying declaration made by the decceased before P.W. 1 Khianram, P.W. 2 Ramlal and P.W. 5 Fuaram The dying declaration made by the deceased Sajanram coupled with the statement of PW 2 Ramlal, P.W. 2 Khian and P.W. 5 Fuaram, the prosecution case stands proved beyond reasonable doubt.
10. In the present case, there is only one eyewitness of the incident i.e. P.W. 2 Ramlal P.W. 2 Ramlal was coming with deceased Sajanram from the house of Ghana Ram. According to Ramlal, he had gone to Chanaram's house of labour and in the evening Sajan also came there who had gone there to give chillies to Chanarm and both of them were returning to their Dhani from house of Chanaram, in the statement before the Court, P.W. 2 Ramlal has mentioned that he alone had taken the meals at the residence of Sajan, while in the earlier version given, to which he was confronted, he has stated that deceased Sajanram had also taken meals at the house of Chanaram. When the post mortem of the dead body of the deceased has conducted by Dr. N T. Hirani the stomach of deceased was found empty. The story of taking meals thus does not find support from the medical evidence of P.W. 3 Dr. NT. Hirani It also appears some what doubtful that when a person goes for labour in the morning he will take torch with him. The crop of Bajrt also conies in the market in the month of November itself and, therefore, the presence of Lata of Bajra in the month of February also does not appear to be probable. It also appears some what doubtful that for the purpose of taking those 'Latas', P.W. 2 Ramlal bad gone there. If the Witness P.W. 2 Ram-lal had not gone to the house of Chanaram, then the presence of this witness at the time of occurrence appears to be doubtful. More over Chanaram would have been the witness, who could have deposed that P.W. 2 Ramlal and deceased Sajanram left his house together, but this Chanaram though he Was cited as a witness in the calendar of witnesses add for his production, the learned Public Prosecutor has also taken time but this witness was not produced by the Public Prosecutor. If the witness P.W. 2 Ramlal would have been present at the scene of the occurrence along with the deceased Sajanram', than he would not have been spared by the assailant, because they came Out from their hidden place all of a suddan and took Sajan and Ramlal unaware. In this view of the matter, we are of the opinion, that the presence of P.W. 2 Ramlal, at the time of incident, at the scene of the occurrence, is doubtful.
11. Now so far as the testimony of P.W. 1 Khianram, P.W. 4 Bhima and P.W. S Fuaram is concerned, they are the witnesses to whom P.W. 2 Ramlal had narrated this whole incident at the Dhani of Khianram. When we are not inclined to accept and believe the testimony of P.W. 2 Ramlal, then the evidence of these three witnesses and narration of the incident by Ramlal to them, and their coming to know of this incident, goes away. So far as the testimony of P.W. 6 Idansingh is concerned, that leads to nowhere. According to Idansingh, when he reached at the scene of the occurrence, be found Sajanram lying on the ground and at that time he was crying and was not speaking and from that place, the witness went to the Dhani and informed Khianram, Fuaram & Ramlal. When he informed Khianram, then Khianram told him that Ramlal had already informed him regarding the incident. He is neither a witness to the incident, nor a witness to the dying declaration.
12. The next ground of attach of the learned Counsel for the appellants is that the dying declaration relied upon by the learned lower Court is not true and, as such, it cannot be relied upon P.W. 1 Khianram has stated that after receiving the information from Ramlal, they went to the scene of the occurrence. He along with his son Ramlal and law, were ahead, while Bhimaram P.W. 4 and Ramlal P.W. 2 were coming behind, when they reached near Sajanram, where he was lying injured, they enquired from him what has happened than Sajanram told them that Khera, Kania and Chena had inflict-ed injuries upon him- After stating so Sajanaram died, P.W. 2 Ramlal has stated that he, his father Khian, Fua, Bhima and Ramlal went towards Sajan, where he was found dead P.W. 2 Ramlal, Khian and Fua were ahead, while Bhima and Ramlal were at a distance of 2 pawandas, They made enquiry from Sajan that what has happened and no inquiry Sajan Ram told that the accused Chena, Kania and Khera had inflicted injuries upon him. After stating this Sajan died. In the first breath, P.W. 2 Ramlal has stated that Sajanram was lying dead, when they reached there. When Sajanaram had already breathed his last, than there was no question of making any statement by him before these witnesses. P.W. 5 Fuaram has also stated that when they reached near Sajan, he was in injured condition add, on inquiry, he told that Kania, Chena and Khera bad inflicted injuries upon him P.W. 3 Br N.T. Hirani, who conducted the post mortem of deceased Sijanram. in his exami nation-in-chief, has stuted that.after receiving the injuries, the deceased could have survived for 5 to 10 minutes. In his cross-examination, Doctor Hirani, has stated that after receiving the injuries, the injured must have entered into come within 2 to 3 minutes and even during that time he could not be able to speak. IF we look to theevidence of P.W. 3 Dr. NT. Hirani, then it becomes very fear that the deceased after receiving the injuries, could not have survived more than 18 minutes and was not able to speak and as such it does not appear probable that he was in a condition to speak, when the witnesses P.W. 1 Khian, P.W. 2 Ramlal, P.W. 5 Fua and other witnesses reached at the scene of the occurrence. The evidence of the dying declaration produced by the proseqution, thus, does not inspire confidence. In this view of the matter, we are not inclined to rely upon the testimony of the prosecution witnesses as well as the dying declaration.
13. The result of the above discussion is that both the appeals filed by the appellants are allowed. The judgment passed by the learned Additional Sessions Judge, Ajmer Camp Jalore convicting and sentencing the appellants is but aside and the accused appellants are acquitted of the charges levelled against them. The accused-appellants are on bail. They need not surrender and their bail bonds are cancelled.