Rajasthan High Court - Jaipur
Gopa Ram And Ors. vs State Of Rajasthan on 26 April, 1996
Equivalent citations: 1996(1)WLN122
Author: P.P. Naolekar
Bench: P.P. Naolekar
JUDGMENT P.P. Naolekar, J.
1. In village Doli, there were two factions one led by the deceased Chutara Ram, and another led by Chima, father of the accused-appellant Gapa Ram. Both factions were engaged in litigation and were inimicaly disposed. A day earlier to the incident i.e., on 23.5.77 one Surjan Ram called Chutara Ram and his brother Sajan Ram to attend the function organised by him. Both of them attended the function. Accused Gopa Ram also attended the function but had not taken the ceremonial-meals with Chutara Ram or his brother Sajan Ram. Both factions had ostracisedeach other from the community and exchanged hot words at the function also. Next day, i.e. on 25.5.77 at about 4.30 P.M., Chutara Ram and P.W.-5 Joga Ram left for their homes. At Hamir's field, accused Gopa Ram along-with other co-accused Uda Ram, Chhoga Ram, Dheema Ram, Gumana Ram and Pokar Ram came in a tractor. Gopa Ram was carrying a 'dhariya' while the other accused-appellants were armed with lathis. Gopa Ram got down from the tractor and assaulted the deceased Chutara Ram with the dhariya and the other accused persons used lathis to assault the deceased Chutara Ram. Joga Ram who was accompanying the deceased was also given beating by all the accused persons and accused Dheema snatched from him his watch. Thereafter, injured Chutara Ram was taken away in the tractor to Chima's dhani. On information being received, Bhera P.W.-7 reached Chima's dhani and there Chutara Ram informed him about the incident naming all the accused persons as assailants. After some time, Chutara Ram succumbed to the injuries.
2. Chutara Ram's brother P.W.-4 Sajan Ram lodged the first-information-report at about 8.45 P.M. that very day with Police Station Mandali and the police registered a case under Sections 147, 148, 149 and 302, I.P.C. The investigation commenced and the accused persons v/ere apprehended on 27.5.77. On information given under Section 27, Evidence Act by accused Dheema the watch was recovered from the factory of one Nathu Singh at. Jodhpur vide Ex.-P/ll. Autopsy was performed on the dead body of Chutara Ram by P.W.-3 Dr. Om Prakash on 25.5.77. The post mortem report is Ex.-P/3. Again a medical-board was constituted which performed second autopsy on 26.5.77. The report of the medical-board is Ex.-P/1 proved by P.W. 1 Dr. Madan Lal Calla.
3. Accused Gopa Ram was charged for offences under Sections 148,302/149 394/397 and 364, I.P.C. while the other accused persons were charged under Sections 147, 302/149, 394/397 and 364, I.P.C. As per the defence version, the accused were not present at the spot at the relevant time and were falsely implicated. The prosecution examined 12 witnesses to prove the charge. P.W.-4 Sajan Ram, P.W.-5 Joga Ram, P.W.-6 Jog Singh, and P.W.-8 Mena wer examined as eye-witnesses. P.W.-7 Bhera was examined to prove the dying- declaration made by the deceased Chutara Ram. 2 doctors, 2 motbir witnesses of the recovery and 1 witness to prove the identification of the articles were examined. The Court below acquitted one accused Pokar Ram and convicted all the remaining 5 accused for offences under Sections 302/149, I.P.C. and sentenced then to undergo imprisonment for life. Accused Gopa was also convicted under Sections 148 and 362, IPC and sentenced to undergo rigorous imprisonment for 6 months on each count. Accused Dhimiya, Udiya, Chhoga and Gumana were also convicted under Sections 147 and 362, I.P.C. and sentenced to suffer rigorous imprisonment for 3 months on each count. Accused Dhimiya was further convicted under Section 392, IPC and were sentenced to undergo rigorous imprisonment for 6 months. It was directed that their sentences shall run concurrently.
4. While discussing the evidence, the learned Sessions Judge disbelieved the statements of eye-witnesses P.W.-4 Sajan Ram and P.W.-6 Jog Singh on the ground that their presence at the place of incident is not proved. On minute scrutiny of the depositions of these witnesses we concur with the view taken by the Sessions Judge and do not think it appropriate to unsettle the reasoning given by him for disbelieving them. There is contradiction on material particulars and their presence at the spot is not free from doubt.
5. P.W.-7 Bhura was examined to prove the dying-declaration made by the deceased Chutara Ram. His statement is that he was informed by P.W.-8 Bena at about 5 in the evening that accused Gopa, Uda, Chhoga, Dheema, Gumana and Pokar have given beating to the deceased. On that he went to Gopa's dhani where he saw deceased Chutara Ram lying on the cot. When he reached near him he informed him that these persons gave him beating and named the above-mentioned accused persons as the assailants. He further informed that he will not survive long and, after sometime Chutara succumbed. The witness has stated that when he reached Gopa's dhani all these accused-persons were present there. In the cross-examination he said that when Chutara was narrating the incident to him all the accused-persons were present and were standing some 7-8 paces away. After Chutara Ram had breathed his last the accused persons ran away and he was the only person left. behind. The witness has deposed that Sarpanch Ganga Ram had reached Gopa's dhani when Chutara was alive but he had no conversation with the deceased. The witness was confronted with his police-diary statement that Sarpanch Ganga Ram talked to Chutara and the accused persons had left the place as soon as hereached there. The learned Sessions Judge disbelieved the dying declaration for the reasons that there is contradiction in his police-diary statement and his statement in the Court inasmuch as before the police he had said that Sarpanch Ganga Ram had talked with the deceased whereas in Court he denied this fact. Further, before the police the witness said that the accused persons left the place as soon as he reached the spot whereas in the Court the witness deposed that the accused persons were present when the dying-declaration was made. According to the learned Sessions Judge this amounts to improvement made by the witness. The witness has said that he was informed by the deceased that Pokar had given beating to him which is not true as all other witnesses have not named Pokar to be among the assailants and the witness tries to implicate him falsely. The witness's statement that Bena informed him about giving beating by the accused-persons to the deceased is not true as P.W.-8 Bena could not have seen the incident and, therefore, his information of the 'incident to Bhura and possibility of this witness at Gopa's dhani at the time of death of Chutara Ram could not be believed. According to learned Sessions Judge if the incident was not narrated to the witness then there was no reason for Bhura reaching Gopa's dhani.
6. We do not find that the approach of the, learned Sessions Judge in appreciating the evidence of the dying-declaration is appropriate. Corroboration cannot be rule of law before the dying-declaration can be relied upon by the Court. The necessity for corroboration arises not from any inherent weakness of the dying-declaration as a piece of evidence; but, for the fact that the Court in a given case has come to the conclusion that particular dying declaration is not free from infirmities, therefore, each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made Tara Chand Damu Sutar v. State of Maharashtra , Tapinder Singh v. State of Punjab , Jaswant Singh v. State (Delhi Administration) , and Kusa and Ors. v. State of Orissa .
7. The prosecution has examined P.W.-7 Bhura who has seen Chutara Ram being carried in the tractor by the accused-persons and heard him utter the words that he was given beating, and, that Gopa Ram accused asked him to exchange wishes with Chutara Ram. Thereafter, he went to the village and informed P.W.-8 Bena about the incident. It is clear from his statement that the deceased was alive and injured when carried in the tractor of Gopa Ram and that Gopa Ram took him away and that P.W.-8 Bena had informed this fact to Bhura uncle of the deceased. The learned Sessions Judge also believed this statement of P.W.-8 although he was disbelieved on the fact of seeking the actual incident. It is quite natural for Bhura who is uncle of the deceased to rush to the place where Chutara Ram was taken and narration of the incident by his nephew to him. We fail to understand as to why the reliability of the dying-declaration is affected by the presence or non-presence of the accused persons or whether Chutara had spoken with Sarpanch Ganga Ram or not. If any infirmity is found in the dying-declaration it would be at most one person Pokar who did not assault the deceased has also been named in the dying declaration and there is false implication of Poker. But for that, can the entire dying-declaration be discredited ? In AIR 1974 S.C. 2188, it is laid down by the apex Court that it is not correct to hold that if part of a dying- declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying-declaration. Thus rejecting the part where Pokar is also said to be the assailant alongwith the appellants, the dying-declaration so far it relates to the accused appellants is proved by the prosecution. We are satisfied that the dying-declaration presents truthful narration of the occurrence in which the deceased received injuries at the hands of the accused-appellants leading to his death. Besides this, if the corroboration is to be found it is fully corroborated by the medical evidence and the evidence of P.W.-5 Joga Ram who has said that deceased Chutara Ram was assaulted by the accused-appellants with a sharp-edged weapon and lathis. The post mortem report shows injuries on the dead-body inflicted by sharp-edged weapon and lathis.
8. P.W.-5 Joga Ram has stated that he accompanied the deceased Chutara Ram from the house of Surjan for their village and while they were near the field of Hamir, a tractor carrying the accused persons came from behind and Gopa who was carrying dhariya and other accused-appellants who were aimed with lathis attached the deceased and inflicted injuries. He was also given beating. He has received 6-7 lathi blows. In his statement he expressed his inability to say as to how many blows were inflicted by each of the assailants but deposed that Chutara Ram was badly injured and he had seen the appellants inflicting injuries to Chutara Ram deceased. Thereafter, he ran away from the place of occurrence and went to Surjan's house and then to his own house. He did not tell about the incident to anyone because by the time he reached his house the incident was known to everybody. He further said that P.W.-6 Jog Singh and P.W.-8 Bena saw the incident, but, was rightly disbelieved on this aspect as his police-diary statement did not contain the statement that these witnesses were present at the relevant time. He has further deposed that his watch was snatched by one of the accused (Dheemiya). He was medically examined and the medical report is Ex.-P/24. He has received 7 bruise-injuries on different pails of his body. The medical report is proved by P.W.-3 Dr. Om Prakash who examined him. The injuries sustained by this witness and the proof of the fact that his watch was snatched from him which was recovered on the information of accused Dheemiya under Section 27 proved by Motbir-witness P.W.-11 Deepa Ram prove beyond any reasonable doubt his presence at the spot at the time of the occurrence. He has named all the accused-appellants as assailants. It has to be the quality of the evidence and not the quantity thereof which will prove the fact. On consideration of the evidence of P.W.-5 Joga Ram and the statement of P.W.-7 Bhura it is proved beyond any reasonable doubt that the injuries were inflicted to Chutara Ram by the accused-appellants.
9. The prosecution has examined P.W.-3 Dr. Om Prakash who conducted the first post mortem examination on 25.5.77 His report is Ex.-P/3. The second post mortem was performed by the medical- board on 26.5.77, report whereof is Ex.-P/1 proved by Dr. Madan Lal Calla. As per post mortem report Ex.P/1, the following injuries were found:
1. Bruise on the left frontal region of the scalp 3" distant from left ear extending from front to back 3" x ¾"
2. Bruise on the left frontal region starting from the forehead to the above 3" x ¾"
3. Incised wound on the left fore-arm lower 1/3 medial side 5" x 2" BONE DEEP (FRACTURE of left ulna) wound was stitches & was reopened (Post mortem wound)
4. Bruise on the left pectoral region extending from intra-claricula region to the anterior axollary 5" x..2" skin dark-brown
5. Bruise below No.4 which 4" x 2.5" dark brown patch
6. 5" x 3" bruise on the left-arm lateral and front side dark-brown and black discoloration diffuse
7. Bruise dark-blue patch on the right palm above the ring and middle finger 2" x 1.5 " Dark blue patch 2.5" x 1.5" on the dorsal part of the wrist joint (whole right forearm and arm upto the deltoid is dark dis-coloured)
8. Bruise on the left thigh upper 1/3 of thigh 5" x 2" confluence dark brown in colour over it there are two cut wounds (1) 3" x ½" superficial (2) 3" x ¼ third on the lateral 2" x ¼ part of the thigh superficial
9. Bruise on the left thigh 6" x 2" transverse compound
10. Cut wound on the bruise above the knee left 3" above 5" ,x 2" and cut wound is 3" x 1" transverse superficial
11. Bruise on the left knee 2" x 1" dark-blue discolouration
12. Bruise on the left lateral part of the knee 3" x 3"
13. Lacerated wound on the left leg front part 3" below the patella obliquo
14. 3" x 3" dark blue bruise on the left leg lower 1/3 part
15. Whole left buttock and lateral part of the thigh violet dark-blue discoloured-confluent
16. Bruise 10" x 2" on the left lower abdominal wall extending from umbilical to the Ilial crest All the above mentioned injuries are ante mortem in nature except injury No.3 which is post mortem. All injuries have been caused with blunt weapon except injury No. 8 (1) and(2), and No. 10 which are caused by SHARP weapon superficially.
The doctors opined about the cause of death as follows:
In our opinion the cause of death is multiple injuries sustained on the body resulting in neurogenic shock and death. However, viscera have been preserved to be sent to chemical examiner to rule out evidence of any poison.
10. As per Dr. Madan Lal Calla the injuries on the head were simple. No fracture was found. Any of the injuries alone was not sufficient to cause death. Injury No. 3 was post mortem. All other injuries were ante mortem. Injuries No. 8 (1) and (2), and No. 10 were caused by sharp edged weapon and other injuries were caused by blunt object. As per the post mortem report, the cause of death is multiple injuries sustained on the body resulting in neurogenic shock and death. According to DR. Om Prakash P.W.-3 who conducted the first post mortem, single injury taken alone was not sufficient to cause death except injury No. 14 (in the first post mortem report Ex.-P/3) which is grievous and rest of the injuries are simple in nature. 4 injuries were caused by sharp-edged weapon. Injuries on the head were superficial. None of the injuries was inflicted on any vital part of the body.
11. Now, on the basis of the evidence on record and the evidence of P.W.-5 Joga Ram, P.W.-7 Bhura and P.W.-8 Bena as well as medical-evidence can it be said that the common object of the accused persons was to commit murder of Chutara Ram. It has come in evidence that accused Gopa after attending the feast at the house of Surjan left for his home on the same day while deceased Chutara Ram had stayed over till 24.5.77 and proceeded for his home in the evening. It is not the case of the prosecution that the accused persons knew before hand the time of departure of Chutara Ram so as to conspire before hand plot to deal with him. it appears from the evidence that it is by sheer chance that the accused persons met Chutara Ram while he was proceeding towards his village and on the spot decided to give him thrashing. The assembly of the accused appellants was not unlawful-assembly so far as they travelled in the tractor. It certainly became unlawful assembly when they decided on the spot to give thrashing to the deceased. Even where the common object is not developed at the initial stage it may develop at the spot to instanti. The common object of the unlawful-assembly of the accused appellants of giving thrashing was developed when they caught sight of the deceased going along the way. As per the medical report, the injuries sustained by the deceased were simple in nature and they were on non-vital parts of the body. The injuries on the head are superficial. All injuries are on the non-vital parts of the body and simple in nature although the appellants had ample opportunity and time to inflict serious injuries to the deceased. There is no evidence that the deceased was armed or was assisted by some other person to ward off the attack.. Thus the inference which could be drawn is only that the common object of the unlawful assembly was to give beating to the deceased and not to commit murder. The evidence led by the prosecution establishes that the common object of the unlawful assembly was developed at the spot and, that too, of giving beating to the deceased Chutara Ram.
12. Accused Gopa Ram was carrying sharp-edged weapon openly and all the accused-persons accompanying him on the tractor must have known about it. When the tractor reached the place of occurrence he challenged Chutara Ram and thereafter the assault began. it is the statement of P.W.-5 Joga Ram that Gopiya inflicted dhariya-blow and all other accused persons landed lathi-blows on the deceased. His statement is fully corroborated by the post mortem report to the effect that there were incised- wounds and other injuries caused by blunt and hard object such as lathi. It can be said with certainty that all the accused persons knew that the sharp-edged weapon carried by Gopiya would be used. The common object of unlawful assembly viz.,giving thrashing to the deceased had, therefore, clear-cut nexus to the commission of the crime and thus every member of the unlawful assembly would be liable for the offence committed by each and every member of such assembly with the aid of Section 149,1.P.C. We have reached the conclusion that accused-appellant Gopa Ram caused hurt to the deceased Chutara Ram with sharp-edged weapon 'dhariya' and, therefore, is guilty for offence punishable under Section 324 I.P.C. All the other accused-appellants namely, Uda Ram, Chhoga Ram, Dheema Ram and Gumana Ram are guilty for offence punishable under Section 324 read with Section 149, I.P.C. being the members of the unlawful-assembly with Gopa Ram.
13. P.W.-5 Joga Ram stated that Dheemiya snatched away his watch at the time of the incident. The watch has been recovered from P.W.-10 Nathu Singh on the information supplied by Dheemiya vide Ex.P/11. The prosecution has examined P.W.-ll Deepa Ram to prove the recoveiy from Nathu Singh. The watch was identified to be of P.W.-5 Joga Ram in the identification of the articles conducted by P.W.-2 Ram Chandra. The trial Court has convicted Dheema Ram under Section 392, I.P.C. and sentenced him on that count to 6 months' R.I. The material placed on record thus shows that Dheema snatched the watch belonging to Joga Ram at the place of the incident.
14. The accused-appellants were the members of the unlawful assembly and, therefore, responsible for each other's act. The member of this unlawful-assembly Gopa Ram caused hurt to the deceased by means of dhariya in furtherance of the common object of the assembly. All the accused-persons are found guilty under Section 324/149, I.P.C. As a result thereof, the sentence and conviction of the accused-appellants under Section 302/149, I.P.C. is set aside; and, instead, the appellants are convicted under Section 324 read with Section 149, I.P.C. and sentenced to undergo 3 years' rigorous imprisonment. The accused-appellant Gopa Ram was armed with dhariya at the time of the incident which is a deadly weapon and had caused injury to the deceased Chutara Ram, therefore, he is found guilty under Section 148, I.P.C. and, accordingly, we sentence him to pay fine of Rs. 1,000/- and, in default of payment of fine, to further undergo 2 months' R.I. Other 4 accused-appellants viz.,Uda Ram, Chhoga Ram, Dheema Ram and Gumana Ram were members of the unlawful assembly and in animation of the common object of that unlawful-assembly used force and caused injuries to the deceased. Accordingly, we find each of them guilty under Section 147 I.P.C. and sentence each of them to pay fine of Rs. 500/-and, in default of payment of fine, further undergo 1 month's R.I. The sentences shall run consequtively if the fine is not paid.
15. Section 362, I.P.C. is a section which defines abduction occuring in some of the sections of the Penal Code and is not a substantive offence. Therefore, the sentence awarded under Section 362, I.P.C. to the accused-appellants is set aside. We have found Dheema guilty under Section 362, I.P.C. and concur with the sentence awarded by the learned Sessions Judge of 6 months' R.I. This sentence shall run concurrently.
16. By virtue of order dated 20.7.78, the accused-appellants were released on bail. Since the appeal stands disposed of and the accused-appellants have been canvicted and sentenced as mentioned above, their bail bonds are cancelled. Each of them shall be taken into custody to serve out the sentences awarded to them setting off the period of imprisonment/custody already undergone.