Rajasthan High Court - Jaipur
Kalia And Anr. vs State Of Rajasthan on 23 January, 1995
Equivalent citations: 1995CRILJ2833
Author: P.P. Naolekar
Bench: P.P. Naolekar
JUDGMENT B.R. Arora, J.
1. This appeal is directed against the judgment dated 17-6-86, passed by the District and Sessions Judge, Udaipur, by which the learned Sessions Judge convicted appellant Kalia for the offence under Section 302 IPC and accused-appellant Hoorta for the offence under Section 302/34 IPC.
2. Appellants Kalia and Hoorta along with accused Odiya were tried by the learned Sessions Judge, Udaipur, for the offences under Sections 302 and 201 read with Section 34 IPC. The case of the prosecution is that on 25-3-85, at about 5.00/6.00 p.m., Reshma (PW1), his mother Smt. Naju (PW3) and father Poona, were coming from the jungle after grazing their she-goats and lambs. Reshma and his mother Smt. Naju were proceeding ahead while Poona was behind them. He heard the cries of his father "Maare Re Maare Re" and when he saw backward he saw that accused Kalia, Hoorta and Odiya were inflicting injuries to Poona. Odiya was armed with a bow and arrow while accused Kalia and Hoorta were armed with Kulharies. The first injury was inflicted by accsued Kalia with the Kulhari on the right temporal region of Poona and thereafter accused Hoorta inflicted three injuries by the Kulhari near the lungs and scapular region. Accused Odiya caused injury to Poona by an arrow on his back. PW1 Reshma tried to rescue his father but he was threatened of dire consequences by the accused. After inflicting the injuries, the accused ran away. The proseuction, in order to prove its case, examined six witnesses. PW 1 Reshma and PW 3 Smt. Naju are the two eye witnesses of the occurrence who were with the deceased when they were coming back after grazing their she-goats and lambs. PW2 Padma is a Motbir witness, in whose presence the site plan (Ex. P2) and the Panchnama (Ex. P3) were prepared. He is also, a witness to the various recoveries. PW4 Dr. Surendra Singh Zhala was the Medical Officer posted in the Government Hospital, Sayra, who conducted the post-mortem on the dead body of deceased Poona. PW5 Gokal Nath is the Police Constable who took the sealed articles from the Malkhana of Police Station, Sayra, obtained the forwarding letter from the office of the Superintendent of Police, Udaipure and thereafter deposited the sealed articles for FSL examination to the State Forensic Science Laboratory, Jaipur. He has stated that the articles remained in the same sealed condition in which they were taken by him from the Police Station till they were deposited in the aforesaid Laboratory. PW6 Mohan Singh was the Station House Officer, Police Station, Sayra, who conducted the investigation and submitted the challan against the accused. The accused, in their defence, examined DW1 Dr. N.S. Kothari. The case of the accused-appellant Kalia, in defence, was that he had gone to jungle in search of his mare and in the way Poona and Reshma attacked him. According to the defence story, Poona inflicted injury by an arrow while Reshma inflicted injury by Kulhari on the person of accused Kalia; he tried to ward-off the injuries and in that attempt his left-hand finger was injured. Thereafter he snatched the Kulhari from Reshma and in the right of private defence of his person when Poona tried to injure him by an arrow, he inflicted an injury to Poona by the Kulhari. Reshma pelted stones on him and thereafter he ran away. The learned Sessions Judge, after trial acquitted accused Odiya of the offence under Section 302 IPC as the deceased had no injury caused by any arrow on his person but he, however, found accused Kalia guilty of the offence under Section 302 IPC and convicted arid sentenced him to under go imprisonment for life and a fine of Rs. 50/- and in default of payment of fine further to undergo two month's rigorous imprisonment. Accused-appellant Hoorta was acquitted of the offence under Section 302 IPC but was convicted for the offence under Section 302/34 IPC and was sentenced to the imprisonment for life and a fine of Rs. 50/- and in default of payment of fine further to undergo two months' rigorous imprisonment. It is against this judgment dated 17-6-86, passed by the learned Sessions Judge, Udaipur, convicting and sentencing the accused-appellants that the appellants have preferred this appeal.
3. It is contended by the learned counsel for the appellants that the prosecution has failed to prove the case against the accused-appellants. According to him (i) there was no motive with the appellants to murder Poona. If at all there was any enmity then the enmity of Poona was with Heeriya and Kalia was a friend to Heeriya and he had no motive to commit the murder of Poona; (ii) there is an unexplained delay of thirteen hours in lodging the FIR and the proseuction case, therefore, deserves to be thrownaway on this count; (iii) accused Kalia had as many as five injuries on his person which have not been explained by the prosecution and Kalia, in exercise of his right or private defence of person, inflicted injury to Poona when he was trying to inflict injury to Kalia by an arrow; (iv) the prosecution evidence does not find support from the medical evidence as according to the ocular testimony of the witnesses, Poona, after receiving the head injury, fell on the ground with his back downwards and, therefore, the injuries on the scapula and back could not have been caused to him in that position; (v) the recovery of Kulhari alleged to have been made on the information and at the instance of the accused, does not connect the accused with the crime, firstly, because it was made from an open place accessible to all and secondly it was not found positive for human blood; and (vi) appellant Hoorta did not share any common intention with accused Kalia to cause murder of Poona. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that the accused have been rightly convicted and sentenced by the learned trial Court.
4. The first contention, raised by the learned counsel for the appellants is that there is no evidence available on record, produced by the prosecution, to connect the accused-appellants with the crime. The prosecution case mainly rests upon the statements of the two eye witnesses, viz., PW1 Reshma and PW3 Smt. Naju. PW1 Reshma has stated that he had gone to the jungle to graze the lambs while his father (Poona) had, gone to the hillock to graze the she-goats. Both of them were grazing the catties nearby. In the evening when they were returning to their house after grazing the cattles, he and his mother were proceeding ahead while his father was coming behind. He heard the cries of his father "Maare Re Maare Re" and when he turned backward, he saw accused Kalia, Odiya and Hoorta inflicting injuries to his father Poona. Odiya was armed with a bow and arrow while accused Kalia and Hoorta were armed with Kulharies. The first injury was inflicted by accused Kalia on the right temporal region of Poona. The second injury was inflicted by accused Hoorta with Kulhari on the right and left, side of the lungs and on the right side of the shoulder. Accused Odiya inflicted injury by an arrow on the back of Poona. When he ran towards his father to rescue him, the accused threatened him of the dire consequenes. They had seen the occurrence from the distance of ten or fifteen feet. The accused, after killing his father, ran away. When he reached near his father, he found him dead. He thereafter lodged the report Ex. P.1. The police came at the scene of the occurrence, made the recoveries and prepared the site-plan etc. He has, also, stated that one Heeriya had stolen their she-buffalo, which was recovered by the police from his house and accused Kalia was assisting Heeriya and that is the reason why accused Kalia has killed his father Poona. According to this witness, the other accused were assisting accused Kalia'. In the cross-examination, this witness has admitted that there was no enmity between his father and accused Kalia and his father used to ask accused Kalia why he was assisting Heeriya. In the cross-examination he has, however, denied that they gave beatings to Kalia and Hoorta. He has, also, denied the suggestion that he and Poona tried to inflict injuries by Kulhari and arrow but it was the accused-appellant, Kalia who caused injury by Kulhari on the head of Poona and on receiving that injury Poona fell down, A lengthy cross-examination has been conducted on this witness but nothing could be elicited to discredit his testimony. PW3 Smt. Naju has, also, corroborated the evidence of PW1 Reshma. Her statement is altogether the same. She has stated that she, along with Reshma and her husband Poona was coming from the jungle after grazing their catties. When she heard the cries of her husband, Poona 'Marre Re Maare Re", she turned backward and saw the three accused inflicting injuries to her husband. Accused Kalia inflicted injury by a Kulhari on the temporal region of Poona, Hoorta inflicted three injuries on the chest and, right shoulder of Poona and Odiya inflicted an arrow injury to Poona. The Kulhari, by which accused Kalia inflicted injury on the head of Poona, remained embedded on his head and accused Hoorta and Odiya ran away after taking their weapons. The motive disclosed by this witness for committing the murder of Poona by the accused was that Heeriya had stolen their she-buffalo and accused Kalia was assisting Heeriya because Heeriya used to give the stolen articles to accused Kalia. The case of theft was lodged by her husband against Heeriya, in which Heeriya was arrested and the she-buffalo was recovered from his house. A lengthy cross-examination has been conducted on this witness but their testimony remained unshaken. From the evidence of these two witnesses, the prosecution has beep able to. prove the case against the accused-appellants beyond reasonable manner of doubt and it has been established that these were the two accused who inflicted injuries to Poona.
5. Now, so far as the motive is concerned, of course it was with Heeriya but the absence of the motive cannot be a ground to discard the testimony of the prosecution witness if the same inspires confidence. The first contention, raised by the learned counsel for the appellant, has, therefore, no force.
6. The second contention, raised by the learned cousel for the appellants is that there is an unexplained delay of thirteen hours in lodging the FIR. The incident took-place at about 6.00 p.m. and the Police Station is situated at a distance of fifteen kilometres. The report of the incident was lodged on the next day at about 7.00 a.m. itself. Only the night intervened between the incident land the lodging of the FIR. The complainant party Had no conveyance available to them; they are poor Adiwashies and, therefore, it cannot be said that there is an unexplained delay in lodging the report. The contention, raised by the learned counsel for the appellants, is, therefore, devoid of any force.
7. The next contention, raised by the learned counsel for the appellants is that the injuries received by accused Kalia have not been explained by the prosecution/complainant party and, therefore, the appellants deserve to be acquitted. The further case of the appellants is that accused Kalia inflicted injury to Poona in the right of private defence of his person and as he inflicted only one injury to Poona, as per the case of the prosecution itself", therefore, he deserves to be acquitted. It is true that accused Kalia had five injuries on his person, as has been disclosed by DW1 Dr. N. S. Kothari, but the injuries received by him are superficial in nature and even the doctor has stated that two of his injuries can be self-inflicted. It has, also not been made clear from the statement of Dr: N.S. Kothari, that these injuries were caused to accused Kalia near about the time of this incident. PW1 Reshma and PW3 Smt. Naju have categorically stated that neither Poona nor Reshma inflicted any injury to accused Kalia. In these circumstances, it cannot be said that these injuries were caused to accused Kalia in the same incident and, therefore, the injuries found on the person of accused Kalia will not affect the prosecution case. From the evidence, produced by the prosecution, we are, therefore, of the opinion that neither Poona nor Reshma inflicted any injury to accused Kalia and, therefore, he had no right of private defence of person to cause injury to Poona.
8. The next contention, raised by the learned counsel for the appellants, is that the medical evidence does not corroborate the ocular testimony of the prosecution witnesses. PW1 Reshma and PW3 Smt. Naju have stated that the first injury to Poona was inflicted by accused Kaliya on his head while accused Hoorta inflicted two injuries by the Kulhari below the chest and one injury on the shoulder of Poona. As per the learned counsel for the appellants, as the deceased fell flat on the ground, therefore, no injury could have been inflicted on the scapular region. Of course these two witnesses have stated that the deceased fell flat on the ground after receiving the head injury but that does not mean that Poona remained in the same positition when the other injuries were inflicted to him by accused Hoorta. None of the two eye witnesses have stated that after falling-down on the ground after infliction of the injury on his head by Kalia, Poona remained in a same static position. In such circumstances it cannot be said that during the course of inflicting injuries by . accused Hoorta, deceased Poona was not in such a position that the injury could not have been caused to him on his scapular region. In such a situation the third injury inflicted by accused Hoorta to Poona might have landed on his scapular region. Even no question was put to the eye witnesses during their cross-examination: whether Poona remained in the same position when an injury was inflicted on his head by accused Kaliya when he fell down on the ground in flat postition. In these circumstances, it cannot be said that the ocular testimony of the eye witnesses does not find corroboration from the medical evidence. Three injuries were inflicted to deceased Poona by accused Hoorta by the Kulhari, out of which two were found below the chest and one on the scapular region of Poona. The contention, raised by the learned counsel for the appellants is, therefore, devoid of any force.
9. The next contention, raised by the learned counsel for the appellants is that the recovery of the Kulhari on the information and at the instance of accused Hoorta does not connect him with the crime. Though the recovery was made from the jungle but the Kulhari was found in a concealed position in a ditch covered by leaves and the accused got it recovered from the ditch after removing the leaves. The recovery was, therefore, made on the information and at the instance of accused Hoorta. Of course, the Kulhari was not found stained with human blood, but it has come in the information given by the accused under Section 27 of the Evidence Act that he concealed the Kulhari after washing it and, therefore, it was not found stained with blood.
10. The last contention, raised by the learned counsel for the appellants, is that accused Hoorta did not share any common intention with accused Kalia in committing the murder of Poona. The question, which requires consideration, therefore, is: whether accused Hoorta was eminated with any common intention with accused Kalia to murder Poona? Before convicting an accused with the aid of Section 34 IPC, it has to be proved that there was a prearranged plan to commit the murder of Poona. There must be material to show that the overt-acts, of both the accused-appellants were done in furtherance of the common intention of them. According to the prosecution case, accused Kalia inflicted only one injury on the temporal region of Poona and the Kulhari remained embedded on his head and could not come-out. Accused-appellant Hoorta inflicted three injuries by the Kulhari two near both the sides of lungs and one on the scapular region of Poona. This overt-act of accused Hoorta in inflicting the aforesaid three injuries shows the intention of accused Hoorta that he, also, shared the common intention of committing the murder of Poona, with accused Kalia. Both the accused-appellants participated in the incident and inflicted injuries by Kulharis on the vital parts of the body of Poona, which discloses that both of them shared the common intention. Accused-appellants Hoorta was, therefore, rightly convicted and sentenced by the learned Sessions Judge for the offence under Section 302/34 IPC.
11. In the result, we do not find any merit in this appeal and the same is hereby dismissed.