1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT GANGA RAM vs. STATE OF RAJASTHAN. D.B. Criminal Appeal No.1053/2002 under section 374(2) Cr.P.C. against the judgment and order dated 28.10.2002 passed by the Additional Sessions Judge, (Fast Track), Dungarpur in Sessions Case No.85/2002. Date of Judgment: 8 July, 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. G.R.Bhari on behlaf of Mr.Sanjay Mathur for the appellant. Mr. A.R.Nikub, Public Prosecutor for the State. BY THE COURT (PER HON'BLE JOSHI, J.): This appeal has been preferred by accused appellant Ganga Ram s/o Babu Aahari r/o Manipur Falan Aahari against the judgment and order dated 28.10.02 passed by the learned Addl. District and Sessions Judge ( Fast Track) Dungarpur in Sessions Case No.85/2002. The brief facts of the case, as unfolded by the prosecution story, is that the Station House Officer of the Police Station Bichhiwara, District Dungarpur received an information 2 through wireless message from Police Chowki Mewara, falling under the jurisdiction of that Police Station, to the effect that on the previous night, a murder had been committed at the village Manipur Aahari Falan. On receiving this information, Station House Officer, Bichhiwara, PW/15 Fateh Singh proceeded to the place of incident, where about 40 to 50 persons were already present. On the place of incident, Shri Mohan, s/o deceased Babu Aahari informed the Station House Officer that deceased Babu Aahari had 2 wives and his first wife namely Moki died leaving behind two sons , namely Mohan and Mani Lal and the second wife of the deceased, namely Punji had two children, one daughter Savita and a son Ganga Ram. In the common premises he, along with his wife, were living in the back portion of the house of deceased father . Deceased Babu Aahari used to reside along with his second wife , Ganga Ram, Mani Lal and Savita. As per oral report submitted by Mohan Lal, after the festival of holi, he along with his wife Vali, Ganga Ram, and Savita, went to Himmat Nagar (Gujarat) to earn their livelihood. His father , mother and Mani Lal were at their native place. On the Saturday before the date of incident, his brother Mani Lal came to Himmat Nagar and informed that mother had been beaten by their father. On being informed that mother was serious, he and his wife reached the village on Sunday and as the condition of mother was very serious, she was admitted in Govt. Hospital , Dungarpur on 17.05.02 and when he himself, his wife and Manilal were at their residence, Ganga Ram and Savita were at the hospital . In the evening at 07.30 PM Ganga Ram came from Dungarpur while wife of Mohan Lal 3 was preparing food at 08.30 PM his father, deceased Babu Aahari came from outside and sat on the stone in the court- yard. At that time he heard the noise of his father and soon after that he rushed to the court-yard and he saw that his brother Ganga Ram, with an axe in his hand, was beating his father and due to these injuries both his hands and one leg were fractured and his father fell down. He tried to intervene and rescue his father and Ganga Ram went away from the place. At that time, Mohan Lal's wife Vali also came on the spot and she went to call the villagers. When she came back with the neighbours Babu had succumbed to death due to the injuries caused by accused appellant Ganga Ram. On the basis of that information, Station House Officer of Police Station Bichhiwara, registered FIR No.103/2002 under section 302 of the Indian Penal Code and investigation was commenced. 4 During the course of investigation, accused Ganga Ram was arrested vide memo of arrest Ex.P/14. Information under section 27 of the Indian Evidence Act was recorded and in pursuance of that information blood stained weapon of offence was recovered vide memo Ex.P/11. After usual investigation, a chargesheet under section 302 of the Indian Penal Code was submitted in the court of Addl.Chief Judicial Magistrate, Dungarpur, from where the case was committed to the court of Sessions Judge, Dungarpur and in turn he transferred the case to the court of Addl.District & Sessions Judge ( Fast Track), Dungarpur. The accused appellant Ganga Ram was charged for the offence under section 302 of the Indian Penal Code. Prosecution examined 15 witnesses to prove the alleged charge against the accused appellant. Evidence available against the accused appellant, was put to give explanation under section 313 Cr.P.C and the accused appellant examined no witness in defence. The learned trial Judge convicted the accused appellant Ganga Ram for the offence under section 302 of the Indian Penal Code and convicted him for life term imprisonment and a fine of Rs.2000/- and further to undergo one year's simple imprisonment in lieu of non-payment of fine. Out of the 15 witnesses examined by the prosecution ,PW/4 Mohan Lal and PW/5 Vali were cited as eye 5 witnesses and PW/15 Fateh Singh appeared in witness box being the Investigating Officer of the case. This witness narrated all the facts regarding the registration of the first information report and arrest of the accused and further the recovery of blood stained weapon of offence in pursuance of the information recorded under section 27 of the Indian Evidence Act and also regarding the recording of statements of witnesses under section 161 Cr.P.C. PW/1 Dr. Manish conducted the autopsy on the body of the deceased Babu and he proved the postmortem report as Ex.P/1. In his statement he deposed that the cause of death of deceased Babu was due to haemorrhagic shock due to injury on the left lung and due to vasovagor peflex due to injury of left lung . As per his statement, the left lung was punctured and the membrane was found teared. He found external injuries on the body of deceased Babu as per report Ex.P/1. In appeal, the main argument of the learned counsel for the appellant is that as per statement of PW/4 Mohan Lal no motive can be inferred for causing the death of deceased Babu by the present accused appellant . In his cross-examination PW/4 Mohan Lal, admitted this fact that there was no dispute regarding any fact in between the accused appellant Ganga Ram and his father and they both had cordial relations. In the absence of any motive adduced in the prosecution story, the guilt of the accused cannot be proved. The next argument of the learned counsel for the appellant is that the Investigating 6 Officer PW/15 Fateh Singh deposed that in pursuance of the information recorded under section 27 of the Indian Evidence Act, vide memo Ex.P/11, blood stained weapon was recovered whereas PW/11 Natwar and PW /6 Raman who had been shown as motbirs of the memo Ex.P/11, had not corroborated the fact of the recovery of blood stained weapon and they had been declared hostile by the prosecution during the course of trial. Next contention of the learned counsel for the accused appellant is that the incident occurred on 17.05.02 at 08.30 PM and the first information report was received in the police chowki Mewara on 18.05.02 at 06.00AM and that information was lodged by Shankar Aahari orally. Thus there was inordinate delay in lodging the first information report. On the other hand, learned Public Prosecutor vehemently controverted the arguments of the learned counsel for the appellant and supported the conviction and sentence strenuously. The learned Public Prosecutor argued that accused appellant Ganga Ram came to the spot of the occurrence with deadly weapon axe to cause grievous injuries to deceased Babu, consequent to which he died. The intention of causing the death, as per the learned Public Prosecutor, can very well be inferred as the appellant was carrying a deadly weapon. It is also argued by the learned Public Prosecutor that the crime in question was not an outcome of some spontaneous act or some heat of the moment but it was a pre-planned attack by the accused appellant on deceased Babu Aahari. He further 7 argued that accused appellant inflicted grievous injuries , like incised lacerated wound on the right leg, left leg and incised wound on right hand so as to cause the fracture of the humerus bone. There was also incised lacerated wound on elbow of left hand. On internal examination the left lung was found punctured. We have considered the rival arguments as advanced by the learned counsel for the parties and have carefully scanned the evidence available on record. PW/4 Mohan Lal and PW/5 Vali have been cited as eye witnesses in the first information report and Ex.P/6 which bears the name of these two eye witnesses. As per the evidence available on record, there was no reason to name the accused appellant falsely by PW/4 Mohan Lal because there there was no enmity on record between these two persons. So far as the lack of motive in the instant case is concerned, it is a settled position of law that lack of motive may weaken the prosecution story but the entire prosecution story cannot be thrown out only on this count. PW/4 Mohan Lal and PW/5 Vali are the trust worthy witnesses and neither there is any contradiction nor any infirmity in the statement of these two witnesses. The evidence of the two eye witnesses with minor contradictions having been there, has withstood the fact of cross examination. Therefore, the case of prosecution is not fit to be thrown out on the grounds of delay in lodging the FIR or non corroboration by motbirs of recovery of weapon of offence. Even after 8 considering this aspect of non corroboration of recovery of weapon of offence by independent witnesses, on the basis of aforesaid discussion, the testimony of PW 4 Mohan Lal and PW/5 Vali cannot be thrown away as their presence on the spot is natural and there are no inherent contradiction or infirmities in their statement so as to make it untrustworthy. The weapon of offence i.e. 'axe' is certainly a deadly weapon and, therefore, accused appellant Ganga Ram must be knowing the consequences of giving bodily injury by such a deadly weapon, particularly, injury on the chest of the deceased, which caused a deep wound causing puncture of left lung of the deceased , clearly establish intention to cause death of deceased Babu, on the part of accused appellant Ganga Ram. The testimony of the eye witnesses coupled with post mortem report and the evidence of PW/1 Dr.Manish, clearly establish the fact that accused has certainly given bodily injury, which caused death of Babu and accused had knowledge that such bodily injury was eminently dangerous and in all probability, may cause death and the intention to do so, is also well established by the above facts. We have also considered the next argument contended by the learned counsel for the appellant regarding the delay in lodging the first information report. Admittedly, the incident occurred on 17.05.02 at 07.30 PM and Mohanlal, just after the incident, rushed to his neighbours and called them and after the lapse of night, in the morning at 06.00 AM he 9 informed the fact of the incident in the police chowki Mewara, falling in the jurisdiction of police Station Bichhiwara. FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits, and the parts played by them, the weapons, if any, used as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment which is a creature of an after thought. On account of delay, the FIR not only gets benefit of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. As per the version of the witnesses available on record, there is no material on record to show any enmity between the accused appellant and the FIR lodger Mohan Lal. Even the suggestion was made to PW/4 Mohan Lal regarding he fact of intention of the complainant to keep all the properties with him but that was denied and no substantial evidence could be produced by the accused appellant regarding such motive or intention of complainant. 10 Looking to the entire facts and evidence on record, it cannot be said that there is an inordinate delay in lodging the FIR. In view of the aforesaid discussion made,we are of the view that accused appellant Ganga Ram intentionally inflicted the injuries on the vital parts of deceased Babu by deadly weapon, with the intention to cause death and this fact is corroborated by the oral testimony of PW/4 Mohan Lal and PW/5 Vali. The learned trial court, while appreciating the evidence of these two witnesses , has held the accused appellant guilty under section 302 of the Indian Penal Code and we find no reason to interfere with the judgment of conviction of trial court. In view of the discussions aforesaid, this appeal deserves to be rejected. Accordingly, the judgment and order dated 28.10.02 passed by the learned Addl.District & Sessions Judge ( Fast Track), Dungarpur in Sessions Case No.85/2002 is confirmed and the conviction and sentence of accused appellant Ganga Ram for the offence punishable under section 302 of the Indian Penal Code is upheld. Accordingly , this appeal deserves rejection and the judgment and sentence dated 28.10.02 is confirmed. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george