1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Jagdev @ Jagdish @ Jaggu Ram & Anr. vs. The State of Rajasthan 1. D.B. CRIMINAL APPEAL NO. 923/2004 State of Rajasthan vs. Rameshwar Lal & Ors. 2. D.B. CRIMINAL APPEAL NO. 1174/2004 under section 374 (2) Cr.P.C. Against the judgment and order passed by the Addl. Sessions Judge, (Fast Track), Nagaur dated 31.07.2004 in sessions case No. 38/2003. Date of Judgment : 2 November, 2010. PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. J.S.Choudhary ] for the appellants Mr. Pradeep Choudhary ] Mr. K.R. Bishnoi, Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.) By the common judgment dated 31.07.04 , passed in sessions Case No.38/2003, the learned Addl. 2 Sessions Judge (Fast Track) , Nagaur, acquitted the accused Rameshwar Lal, Sarwan Ram @ Sarwan Kumar and Parwati for the offences under section 302, 302/149, 324, 324/149, 323, and 341 IPC and convicted the present accused appellants Jagdev @ Jagdish @ Jaggu Ram and Shyam Lal for the offences under section 302 IPC and section 25 (1-B) (b) of Arms Act and punished each one of them by sentencing them to life imprisonment and a fine of Rs.1,000/- and further to serve sentence of two months' rigorous imprisonment in default of payment of fine for offence under section 302 IPC, to undergo sentence of three years' rigorous imprisonment and a fine of Rs.500/- and in default of payment of fine to further undergo one month's rigorous imprisonment under section 4/25 of the Arms Act. It was further ordered by the learned trial court to serve the above sentences concurrently. Aggrieved by the above judgment of conviction, the accused appellants Jagdev and Shyam Lal filed this DB Cri. Appeal No.923/2004 challenging the judgment of conviction and order of sentence and the State has filed DB Cri.Appeal No.1174/2004 against the judgment of acquittal of Rameshwar Lal, Sarwan Ram @ Sarwan Kumar and Parwati. We are deciding both these appeals by a common 3 judgment, because of the fact that both the appeals arise out of the same judgment. In order to dispose of both the appeals ' it would be proper to narrate the facts of the case in a nut shell. The nub of the prosecution story is that on 17.09.2002 at about 10.30 PM PW/3 Jugal Kishore submitted a written report Ex.P/25 at Govt. Hospital , Nagaur to PW/18 Ram Niwas, the Assistant Sub-Inspector of Police Station, Rol, stating that on 19.09.02 at about 08.30 PM his brother Prahlad Ram had gone to STD Booth, to have a talk with some one. While he was returning, accused Jagdev @ Jagdish @ Jaggu Ram s/o Shrawan Ram restrained him on the way and confronted him regarding the objections which the deceased was making for the engagement of his uncle's son. However, Prahlad denied the same. At the same time Jagdev @ Jagdish @ Jaggu Ram inflicted a knife blow to Prahlad and his nephew Shyam Lal. Rameshwar Lal, and Sarwan Ram also came to the spot with a 'sariya' and 'lathi' and started beating the deceased. Thereafter, Sarwan's wife , Gajju and Nena also joined them . Thereafter, Hari Ram and Kesar came to the spot and intervened. Finally, Prahlad and Shivraj succumbed to their injuries. On the basis of the above report, FIR No. 88/2002 dated 18.09.2002 was lodged against the accused persons and the investigation commenced. 4 During the course of investigation, a site memo was prepared statement of witnesses were recorded, and the accused were arrested. In pursuance of the information of the accused appellants, the weapons of offences were recovered and the same were sent to the Forensic Science Laboratory for chemical examination. After usual investigation, a charge sheet was filed against the four accused, namely, Rameshwar, Sarwan Kumar, Jaggu Ram and Shyam Lal. Later on, vide order dated 10.09.2003, after recording the evidence of some witnesses, while deciding the application under section 319 Cr.P.C., the learned trial court took the cognizance of two more persons, namely, Parvati and Nena. Out of which vide order dated 09.05.2003 , the case of Nena was referred to the Juvenile Justice Court as he was below 18 years of age. Thus, the trial of the offence took place against 5 accused persons in the court of Addl.District & Sessions , Nagaur. The accused Rameshwar, Srawan Ram and Parwati were charged for the offence under section 148, 341, 323, 324/149 and 302/149 and accused Jaggu Ram and Shyam Lal were charged for the offence under section 148, 341, 323, 324/149, and 302/149 IPC and under section 4/25 of the Arms Act , to 5 which accused did not plead guilty and claimed to be tried. The prosecution examined as many as 24 witnesses in support of the prosecution story , namely, PW/1 Ghanshyam, PW/2 Rameshwar, PW/3 Rameshwar Lal, PW/03 Jugal Kishore, PW/4 Mukesh, PW/5 Radha Kishan, PW/6 Dr. Ramvilas, PW/7 Hariram, PW/8 Pukhraj, PW/9 Maniram, PW/10 Radha Kishan , PW/11 Dr.R.K.Agrawal, PW/12 Maniram s/o Radha Kishan PW/13 Ramchandra, PW/14 Chhotu Ram, PW/15 Dinesh, PW/16 Muknaram, PW/17 Indra, PW/18 Ramniwas, PW/19 Sohan Lal, PW/20 Kesar, PW/21 Gyanendra Singh, PW/22 Andaram, PW/23 Rajesh Kumar Choudhary and PW/24 Ramkumar. The accused were asked to explain the incriminating evidence adduced against them during the course of trial under section 313 Cr.P.C. and the accused did not produce any evidence in their defence. The learned trial court, vide judgment datd 31.07.04, recorded the judgment of conviction and sentence, as narrated above. PW/6 Dr.Ram Vilas Choudhary who was posted on 18.09.2002 as Medical Jurist of Govt. Hospital , Nagaur, 6 conducted the autopsy along with other Board members, Dr. R.K.Agrawal and Dr.Rajesh Yadav, of the body of deceased Prahlad Ram and observed the following external injuries :- Stab wound 01 cm x 0.5 cm, situated over Rt.side of chest in lower part about 3” away from mid- line. Wound is obliquely placed. The wound has pierced into the liver after fracture of 9th and 10th ribs on Rt.side. Wound is antemortem.” As per the opinion of the doctor, the cause of the death of the deceased was a stab wound which ruptured the liver and caused internal haemorrhage leading to shock. The injuries were all antemortem in nature. He admitted his signature on Ex.P/3 post mortem report of Prahlad, along with signatures of other members of the Board. This witness further deposed that on the same day, at about 11.55 AM the Board conducted the autopsy of Shivraj and they observed the following injuries :- (i)Stab wound 1 cm x 0.5 cm x upto bone deep situated over the chin just below lower lip. (ii)Incised wound 3 cm x 1 cm x muscles deep piercing the wound into Trachea on right side. Wound situated on right side of neck, below the thyroid near the mid line. (iii)Stab wound 1 cm x 0.5 cm over Lt. side of chin wound upto bone deep. (iv)Stab wound 1 cm x 0.5 cm over Rt. side of 7 chest 3” away from mid line between I and II rib piercing muscles and enter into Rt. lung puncturing the lung (v)Stab wound 1 cm x 0.5 cm over Rt. side of chest 1” away from mid line, piercing chest wall between II and III ribs and entering into the Rt. lung surface. (vi)Stab wound 1 cm x 0.5 cm situated on Lt. side of chest 1 cm away from mid line piercing chest wall at the level of III and IV ribs entered into the heart from Rt. Atrium and pierced whole heart and came out from Lt. ventricle oblique from above downwards towards Lt. side. Same size wound, i.e. 1 cm x 0.5 cm present over the heart on both anterior and posterior surfaces. Heart is punctured blood came out collected into thorax cavity. (vii)Abrasion 2” over lower part of chest on Rt. side.” All the injuries were antemortem in nature. And the cause of death of the deceased was due to puncture of the heart and shock. He deposed that he had prepared the postmortem report of Shivraj Ex.P/14 and admitted the signatures of all the members of the Board. PW/11, Dr.R.K.Agrawal, corroborated the evidence of PW/6 Dr.Ram Vilas Choudhary . Thus , by the statements of 8 both these witnesses ,it is proved beyond reason that the deaths of both the deceased Prahlad and Shivraj was homicidal in nature. The prosecution examined PW/1 Ghanshyam, PW/3 Jugal Koshore, PW/7 Hari Ram , PW/17 Indra and PW/20 Kesar as eye witnesses. All these witnesses deposed about the fact of witnessing the incident and the learned trial court, while holding the conviction of these two accused appellants, appreciated the evidence of all the above eye witnesses and disbelieved the statement of PW/1 Ghanshyam for the reason that his presence at the scene of occurrence was considered doubtful . But the learned trial court believed the evidence of PW/3 Jugal Kishore, PW/7 Hari Ram, PW/17 Indra and PW/20 Kesar for convicting the present accused appellants. The learned counsel for the accused appellants while impeaching the order of conviction , argued that FIR Ex.P/25 had been lodged by PW/3 Jugal Kishore, who was also an eye witness but the names of PW/1 Ghanshyam and PW/17 Indra Devi did not find place in the first information report and further argued that the statement of PW/1 Ghanshyam had been disbelieved by the learned trial court. Further, the statement of Indra Devi must also be 9 disbelieved on the same ground because these witnesses have been subsequently introduced by the complainant party. The learned counsel for the accused appellants further argued that from the statement of PW/3 Jugal Kishore, PW/7 Hari ram , PW/17 Indra and PW/20 Kesar it appears that all these witnesses reached the place of incident after commission of offence. Therefore, the learned trial court erred on relying upon the evidence of these four witnesses. Further, he argued that PW/3 Jugal Koshore and PW/7 Hari Ram are the brothers of the deceased Shiv Raj and PW/17 Indra is the wife of the deceased Shirvraj. All the witnesses are interested witnesses, therefore, their evidence could not be believed for holding the conviction. We have perused the statement of these eye witnesses. All the eye witnesses categorically deposed about the incident and from the statement of these eye witnesses, it cannot be inferred that the witnesses reached the place of incident after the commission of the offence. They have stated the vivid description of each incident and the nature in which the injuries were caused by both these accused appellants. The learned counsel for the accused appellants drew our attention towards the minor contradictions in the first 10 information report and the statement of these witnesses regarding the fact that in the FIR the weapon of offence is named as 'sariya' whereas in the deposition in the court it has been deposed by all the witnesses that Shyam Lal caused injuries with 'guptii' to Prahlad. But we do not think that this contradiction is not of such a nature that only on the basis of this contradiction the evidence of all the eye witnesses can be thrown out as false. Further, such minor contradictions further establishes the fact that the witnesses did not depose in the tutored way. It was just not possible for the witnesses to observe the kind of the weapon because there is a very vast difference between 'gupti' and 'sariya'. Therefore, the arguments advanced by the learned counsel for the accused appellant does not contain any force. Now we come to the point of statement of interested witnesses. The incident took place in front of the old Police Station, Rol and the presence of these witnesses was further proved by the statement of PW/23 Dr. Ram Vilas Choudhary because he deposed that on 17.09.2002 , while examining the injuries of Jugal Kishore and Hari Ram he observed the injuries on the 11 body of Jugal Kishore as narrated in the injury report Ex.P/47 and on the body of Hari Ram as narrated in the injury report Ex.P/ 48. The injury report itself proved their presence at the scene of occurrence and further the offence is committed in the near vicinity of the house of the deceased it was but natural that the family members would be the first person to rescue the injured or the deceased. Therefore, simply on this ground that the witnesses are relatives of the deceased or the injured, cannot be a ground for disbelieving their statement. The Hon'ble Supreme Court has ruled that the evidence of an interested witness is the kind of evidence of which the source is likely to be tainted. The evidence of an interested witness requires careful scrutiny to discover the false embellishment or exaggeration which must be achieved. Keeping in view the above principle pronounced by the Hon'ble Supreme Court, if we analyse the evidence of all the witnesses, their statements cannot be said to be untrustworthy and in the absence of any material contradiction or omission it inspires complete faith because they deposed the substratum of the prosecution story in a consistent way with other evidence , natural course of events, surrounding circumstances and inherent probabilities of the case. 12 We have perused the statements. The cross examination of each eye witnesses was made at length but no major contradiction was found by the learned trial court also. So far as the motive is concerned, the first information report itself contains the motive that there was an intervention or objection by one of the deceased on the point of engagement of some relatives of the accused. The learned trial court relied on the evidence of eye witnesses, except PW/1 Ghanshyam and on the statement of PW/3 Jugal Kishore , PW/7 Hari Ram , PW/17 Indra and PW/20 Kesar, recorded the judgment of conviction . In our view also the statements of these witnesses inspire faith and confidence and their presence at the scene of occurrence is also well established by the corroboration of each witness to the incident and by injury reports of PW/7 Hari Ram and PW/3 Jugal Kishore. The learned counsel for the accused appellants further contended that Ex.P/25 , the first information report, was registered on 18.09.2002 at 01.00 AM i.e. in the intervening night of 17.09.2002 and 18.09.2002, whereas copy of the first information report Ex.P/23 was received in the office of the Civil Judge Jr. Division and Judicial Magistrate First Class , Jayal on 13 18.09.2002 at 02.20 PM . Therefore, the report of the commission of the offence was not sent forthwith to the concerned court and thus the compliance of section 157 Cr.P.C. was not made by the concerned Station House Officer of the Police Statiaon, Jayal, thus, the first information report Ex.P/25 was ante timed by the police. The effect of delay in sending the FIR to court has to be judged , keeping in mind the creditworthiness or otherwise of the ocular evidence. The Hon'ble Supreme Court has held in Sahdev vs. State of U.P. [ AIR 2004 SC, 3508] and Sunil Kumar vs. State of Rajasthan [ AIR 2005 SC 1096] that the delay in sending the FIR to court was not to enable the prosecution to concoct a false case against the accused. Since the FIR contained only a brief statement of events the court opined that if the FIR had been prepared after the inquest and autopsy were over, more matters could have been incorporated in it. Such delay cannot, by itself , throw out the prosecution case in its entirety. In the present case, even the time taken by the Station House Officer in sending the FIR to the concerned court, does not provide basis for even suspicion that the FIR was recorded much later to set up a distorted version. 14 We have perused both these documents and also pondered over the arguments advanced by the learned counsel for the accused appellants and as per the statement of the witnesses the distance of the court from the place of incident to Jayal Police Station was about 40-42 Kms. Therefore, looking to the fact of the Headquarter of the court situated at another place , the time consumed in sending the copy of the report to the concerned court, cannot be termed as a delayed one or as sent by inordinate delay. Therefore, the arguments advanced by the learned counsel for the accused appellants is devoid of merit. Learned counsel for the accused appellants argued that the offence committed by both the accused cannot travel beyond the offence punishable under section 304 Part-I and 304 Part -II IPC because there was only a single blow inflicted by accused Jagdev @ Jagdish @ Jaggu Ram to deceased Prahlad. Therefore, there could not be any intention to cause death and the knowledge may be inferred on the part of Jagdev for causing the death. We have perused the post mortem report as well as the statement of PW/6 Dr.Ram Vilas Choudhary and PW/11 Dr.R.K. Agrawal who conducted the autopsy on the body of both the deceased and as the injury observed on the body of 15 Prahlad was a stab wound on the chest which was oblique one , causing the fracture of the 9th and 10th rib and the blow reached up to liver itself shows that even without the repetition of the second blow , the intention on the part of the accused appellant Jagdev to cause the death of deceased Prahlad may be well inferred and thus this argument also does not contain any force. So far as the appeal filed by the State against the three respondents Rameshwarlal, Sarwan Ram @ Sarwan Kumar and Parwati is concerned, we have heard both the parties on the appeal and also perused the judgment of the learned trial court. The learned trial court rightly appreciated the evidence that all the three persons came later on on the spot and they were not knowing and they never knew about the intention of Jagdev and Shyam Lal to cause the death of deceased Prahlad and Shivraj, therefore, the learned trial court found the conspicuous absence of common object and formation of unlawful assembly and, acquitted the three persons Rameshwar Lal, Sarwan @ Sarwan Kumar and Parwati of the offence charged and we find no infirmity , illegality , or irregularity in the judgment of the learned trial court in this regard. In view of the aforementioned discussions, we are of the 16 view that on the basis of the evidence available on record, the learned trial court , in convicting the accused appellants Jagdev @ Jagdish @ Jaggu Ram and Shyam Lal , committed no error and further the acquittal of three persons , namely, Rameshwar Lal, Sarwan @ Sarwan Kumar and Parwati is also justified. Accordingly, the conviction of accused appellants Jagdev @ Jagdish @ Jaggu Ram and Shyam Lal requires to be affirmed and the acquittal of Rameshwar Lal, Sarwan @ Sarwan Kumar and Parwati also requires to be affirmed. In the result, the judgment of conviction and order of sentence dated 31.07.2004 passed by the learned Addl. Sessions Judge, ( Fast Track), Nagaur, in Sessions Case No. 38/2003, of accused appellants @ Jagdish @ Jaggu Ram and Shyam Lal is maintained and the appeal filed by both these accused appellants, is dismissed. At the same time, the appeal filed by the State, against respondents Rameshwar Lal, Sarwan @ Sarwan Kumar and Parwati is also dismissed and the order of acquittal passed in Sessions Case No.38/2003 by the learned trial court is maintained. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. l.george