Rajasthan High Court - Jodhpur
Ugma & Anr vs State on 24 November, 2016
Bench: Chief Justice, Vinit Kumar Mathur
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
D.B.CRIMINAL APPEAL NO. 232 / 1989
1. Ugma S/o Shri Suraj Mal
2. Amba S/o Suraj Mal
both by caste Gujar, residents of Aahiron ka
Khera, Police Station Asind.
----Appellants
Versus
The State of Rajasthan
----Respondent
__________________________________________
For Appellants : Mr. Doongar Singh
For Respondent : Mr. JPS Choudhary, PP
__________________________________________
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment on Board 24/11/2016 The two appellants stand convicted under Section 302/34 IPC to life imprisonment with fine on 31.05.1989 by the Sessions Judge, Bhilwara in Sessions Trial No.12/1988. Appellant No.2 has been deceased during the pendency of the appeal and it has stood abated against him by order dated 24.04.2000.
The prosecution case according to the police report (Exhibit P/1) dated 08.10.1997 lodged at 10.30 pm by Bakhtawar Singh father of the deceased formally registered as FIR (Exhibit P/2) the same day (2 of 9) [CRLA-232/1989] after it was brought to the police station by Man Singh (PW-1) states that at about 4.00 pm the deceased was assaulted by the Appellant witnessed by PW-6, Smt. Kamli and PW-7, Anopi the wife and mother respectively of the deceased after which he was thrown in the well. The post mortem of the deceased was done the next morning at 9.45 am (Exhibit P/12) by PW-11,Dr. Prabhat Kumar who noticed 13 injuries with two incised wounds over the right frontal bone just above the eye-brow 1½" X ½" X ½" and on the right elbow 1" X 1" X ½"; three lacerated wounds just interior to the right gleuteal muscles, right knee, below the right knee and just below the right knee as also six abrasions on the chest, scapular region, right thigh, left knee and the right frontal parietal region. Internal examination revealed visible haemotema of 6 X 5 cm on right frontal region running backward. Death was opined as antemortem in nature due to head injuries revealing pressure signs on the brain. The injuries were found to be fresh in origin.
Learned Counsel for the Appellant submitted that DW-1, Nanda DW-2, Khema had deposed that the deceased jumped into the well because of a dispute with his brothers and had attempted to do so earlier also when he was extricated as the water level was low. This defence has not been considered properly. It (3 of 9) [CRLA-232/1989] was next submitted that according to the prosecution case the assault took place at 4.00 pm on 08.10.1987 but the doctor who conducted post mortem the next morning at 9.45 a.m. deposed in cross-examination that death had taken place 2-4 hours earlier only. This discrepancy in time raises serious doubts about the possibility that the deceased may have been killed by some other at another location in some other manner at a different time. The benefit of doubt must be given to the Appellant.
There are no independent eye-witnesses. The two eye witnesses are interested and related to the deceased. It was lastly submitted that Bakhtawar Singh, who lodged the FIR, has not been examined and also the Investigating Officer did not appear for deposition and cross-examination. If there is evidence to suggest that the deceased may have jumped into well himself, again benefit of doubt must be given to the appellant.
Counsel for the State submitted that the presence of PW-6, Smt. Kamli and PW-7, Anopi has been mentioned in the FIR itself. There is no reason why they should be stating falsehood to save the real assailants seen by them and falsely implicate the Appellant especially when there existed no enmity and the parties were known to each other. The failure to (4 of 9) [CRLA-232/1989] examine Bakhtawar Singh cannot discredit the FIR, as PW-1, Man Singh has deposed that it was given to him by the former and that he took it to the police station and which was signed by him also. He also proved the Inquest report Exhibit P/3 signed by him. The narration in the FIR is consistent with the deposition of the two eye witnesses. There is nothing in the evidence of the two eye witnesses to doubt their credibility or reliability or even look for corroboration because they were related to the deceased.
The opinion of the doctor with regard to time elapsed since death, is a casual estimation which must be understood in the background of the report that the injuries were fresh in origin. Mere error in mentioning the time will not invalidate the credible eye-witnesses account of PW-6,Kamli PW-7, Anopi especially when the doctor was deposing on 03.02.1989 with regard to an incident on 08.10.1987 as in the interval he may have conducted numerous other post mortems. Some leeway has to be given for human errors. If there is any conflict between the medical evidence and the eye-witness account the latter will prevail. The FIR was registered with promptness the same night. It was next submitted that PW-2, Heera has confirmed the skirmish with the deceased when the goat of the witness entered the (5 of 9) [CRLA-232/1989] fields of the deceased.
We have considered the submissions on behalf of the parties.
The written report was drawn up by Bakhtawar Singh with regard to the assault by the Appellant and the deceased Appellant. The origin of which lay in the goat of PW-3, Heera having strayed into the fields of the deceased. The FIR is only information with regard to a cognizable offence. The details emerge during investigation. PW-1, Man Singh has proved having submitted it before the police and his signature upon the same. The witness has also signed the inquest report. No prejudice has been caused to the Appellant because of the non-examination of Bakhtawar Singh as the manner of occurrence has also been proved by PW-6, Kamli and PW-7, Anopi named in the FIR as present at the time of the assault. They have not been introduced at a subsequent point of time. Being relatives of the deceased there is no reason why these witnesses would be lying to shield the real assailants seen by them especially when there existed no enmity for false implication. On the contrary they would be the most interested to ensure that the real culprits are dealt with by the law. They have both stated of assault by the Appellant and the co-accused upon the deceased. Similarly, no prejudice can be said to have (6 of 9) [CRLA-232/1989] been caused to the Appellant because of the failure to examine and the opportunity to cross-examine the Investigating Officer and neither does the FIR stand falsified for that reason. Not a word has been asked to the two eye witnesses in cross-examination to suggest that either they were not present or that the Appellant was not the assailant and was being falsely implicated for any specified reason.
In (2012) 8 SCC 365 (Subhash Krishnan v. State of Goa) considering the submission for non-examina- tion of the complainant in view of the entirety of the evidence it was observed as follows :-
"15....Therefore, taking the totality of the above facts, it will be futile on the part of the appellant to contend that PW 2 did not offer himself for cross-examination and, therefore, the whole genesis of the case should be thrown out of board...."
Similarly non-examination of the Investigating officer will not weaken the prosecution case in ab- sence of prejudice caused and demonstrated was con- sidered in (2013) 6 SCC 417 (Lahu Kamlakar Patil v. State of Maharashtra) observing as follows :-
"8...... It is an accepted principle that non-ex- amination of the investigating officer is not fa- tal to the prosecution case. In Behari Prasad v. State of Bihar, this Court has stated that non- examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the ac- cused. In Bahadur Naik v. State of Bihar, it has been opined that when no material contradic-
(7 of 9) [CRLA-232/1989] tions have been brought out, then non-exami- nation of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused...." .
PW-11, Dr. Prabhat Kumar who conducted the postmortem has stated that the injuries were fresh in origin. If the eye-witness account of the assault by the two witnesses is considered credible, any error by the doctor in mentioning the time elapsed since death at the time of post mortem cannot lead to any doubt that the occurrence had not taken place in the manner alleged. The original post mortem does not mention the time elapsed since death. The occurrence had taken place on 08.10.1987, the doctor gave his deposition in court on 25.04.1989. The passage of time, the weakness of human memory on such trivial aspects especially by a professional who may have conducted several post mortems everyday, does not raise any doubt in our minds to hold that the occurrence may have taken place in some other manner and assailants may have been some other so as to give benefit of doubt to the Appellant.
The doctor has also stated that there was no water in lungs and the chest. The clothes were wet. In his cross-examination he has also explained that in situations like the present by reason of assault the (8 of 9) [CRLA-232/1989] deceased was rendered deeply unconscious, breathing may stop and if he drowns at such a time, water may not necessarily be found in his lungs. Being an expert opinion, we have no reason to doubt the same and nothing has been demonstrated before us from medical jurisprudence to the contrary.
In his defence under Section 313 Cr.P.C. the Appellant stated that he wanted to lead evidence. The two defence witnesses acknowledged that the deceased was not insane. Significantly they have acknowledged that the origin of the incident lay in a dispute with regard to the goat of PW-2, Heera having strayed into the fields of the deceased. PW-2, Heera has also confirmed the same. The defence that the deceased may have jumped into the well on his own volition because of the assault made by the Appellant has to be disbelieved because according to the doctor having been rendered deeply unconscious because of the assault by the two appellants with lathis, the question of the deceased jumping into the well in an unconscious condition does not arise. In the entirety of the evidence and consideration of the same, we find no reason to interfere with the conviction of the Appellant. His bail bonds are cancelled and he is directed to surrender and or be taken in custody forthwith for serving out the remaining period of (9 of 9) [CRLA-232/1989] sentence.
The appeal is dismissed.
(VINIT KUMAR MATHUR)J. (NAVIN SINHA)C.J. /skm/