1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Pokar Ram & Anr. vs. The State of Rajasthan. D.B.Cri. Appeal No.394/2005 Under Section 374 (2) Cr.P.C. against the judgment and conviction dated 23.04.05 passed by the Addl.Sessions Judge (Fast Track) No.1, Pali, Headquarter at Jaitaran, in Sessions Case No.91/2004. ....... Date of Order: 09th July, 2007. PRESENT HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR.JUSTICE RAGHUVENDRA S. RATHORE Mr.M.K.Garg ] for the appellants. Mr.Niranjan Singh ] Mr.JPS.Choudhary, Public Prosecutor. BY THE COURT :(PER HON.MR.BHAGWATI PRASAD,J.)- The accused appellants Pokar Ram and Mana Ram have filed the present appeal being aggrieved by the decision of the learned 2 Additional Sessions Judge, (Fast Track) No.1, Pali, Headquarter at Jaitaran,in Sessions case No.91/2004/2001 dated 23.04.05 whereby the accused appellant Pokar Ram has been convicted under Section 302, 307, 324, and 326 IPC and accused Mana Ram has been convicted with the aforesaid offences read with Section 34 IPC and has been sentenced to life imprisonment and fine, apart from other sentences and fine. The prosecution was launched on the basis of a report lodged at Police Station, Sojat City, Ex.P/1. In Ex.P/1 Bora Ram stated that apart from himself, Sohan Lal and Chhaga Ram are the other two brothers. They had some kind of dispute with Master Pokar Ram and Mana Ram who were brothers in relation. About ten years before, there was some dispute about a platform being constructed by them in front of their house. The objection of the complainant was that this would cause obstruction in the way of carts etc. The accused party did not heed to their request. They constructed the platform and stopped keeping relationship with them. Few months before the incident there was a dispute in between the two parties which related to the distribution of wheat and there was certain litigations pursued in that connection and there 3 was a certain animosity in between the parties. It was further stated in the report that on the fateful day at about 5.30 PM, Mahesh, s/o Chhaga Ram came weeping and informed him that Chhaga Ram was coming from his Govt.duty and while he arrived at the Temple of Mahadevji, accused Pokar Ram, Master armed with a sword and accused Mana Ram armed with a stick came hurling abuses from their house and caused injuries by sword and stick. At that time Sugani was drawing water from the hand pump. She tried to intervene. She was also inflicted injuries. While all this was going on , deceased Sohan Lal came running and tried to intervene and tried to rescue the injured. Accused Pokar Ram and Mana Ram caused injuries to him. Sohanlal sustained fatal injury and fell there and succumbed to his injuries. After that the accused ran away towards their house. Pokar Ram and Mana Ram had their clothes stained with blood. At that time Jankilal, witnessed the occurrence. He asked them to stay but the accused made their escape good. Janki Lal made a telephonic contact with the police. Police arrived and on arrival started enquiring about the incident. They were given a report which was registered as First Information Report and a case under Section 302, 307 IPC was registered as FIR No.265/1999. After usual investigations, charge sheet was filed against the accused. The case was committed and on 01.11.2000 charges were framed against the 4 accused persons. Against accused Pokar Ram charges were framed under section 302 , 307, 326 and 324 IPC and against Mana Ram the same offence were added with the aid of Section 34 IPC. Accused denied the charges and claimed trial. At the trial prosecution examined 22 witnesses and exhibited 48 documents. The accused was examined under Section 313 Cr.P.C. Three defence witnesses were examined and 11 documents were exhibited in defence. The trial court on 01.08.2002 added Mohini Devi in the array of accused. However, her name was struck off by the orders of the High Court and thus the trial proceeded against accused Pokar Ram and Mana Ram. The trial court, after considering the case of the prosecution and defence came to the conclusion that PW/1 Janki Lal Vyas is an independent witness who is neither related nor interested in either of the parties. His deposition is of correct nature. Whatever discrepancies have come in his statement are of the nature which do not in any way effect the substratum of the case of the prosecution and thus, the trial court with the aid of the injured eye witnesses PW/8 Chhaganlal and PW/16 Sugani, placed implicit reliance on the prosecution story and convicted the accused appellant for the 5 following offences and sentenced them accordingly:- 1 Pokar Ram U/s 302 IPC Life imprisonment and to pay a fine of Rs.15000/- and in default of payment of fine to further undergo one year R.I. U/s 307 IPC Life imprisonment and to pay a fine of Rs.15,000/- and in default of payment of fine to further undergo one year R.I. U/s 326 IPC Ten years' R.I. And to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo six months' R.I. U/s 324 IPC Two years' R.I. And to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo three months' R.I. All the sentences were ordered to run concurrently. 2 Mana Ram U/s 302/34 IPC Life imprisonment and to pay a fine of rs.15,000/- and in default of payment of fine to further undergo one year R.I. U/s 307/34 IPC Life Imprisonment and to pay a fine of Rs.15,000/- and in default of payment of fine to further undergo one year R.I. 6 1 Pokar Ram U/s 302 IPC Life imprisonment and to pay a fine of Rs.15000/- and in default of payment of fine to further undergo one year R.I. U/s 326/34 IPC Ten years' R.I. and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo six months' R.I. U/s 324/34 IPC Two years' R.I. And to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo three months' R.I. All the sentences have been ordered to run concurrently. The learned counsel for the appellants , challenging the conviction of the accused appellant, stressed that FIR was placed before the Magistrate after 11 hours after the same was lodged and thus there is inordinate delay in sending the FIR before the Magistrate. While the learned counsel for the defence urged that FIR which is treated as FIR is not the first report. The police had received a telephonic report as lodged by PW/1 Janki Lal which is recorded as Ex.P/43 and that is though without naming the accused persons but is an information regarding the commission of crime and, therefore, FIR is a post investigation document. This has adversely effected the defence case. 7 The learned counsel for the appellant further urged that the accused Mohini has been sought to be implicated by the prosecution witnesses falsely, as has been held by the orders of the High Court, and her name has been struck off from the array of the accused persons. Thus, as and when the prosecution tries to implicate an accused it stands self condemned. Thus no implicit reliance should be placed on the statement of the prosecution witnesses. It was further claimed by the defence that there was no blunt weapon injury on the person of the two injured persons and the deceased. Thus, implication of Manak Ram has been wrongly stated. Thus, if an innocent person to whom injuries are assigned in the prosecution case , have not been found on the victim then the prosecution case should not be believed. The learned counsel for the appellants has further tried to impeach the prosecution case on the ground that the prosecution has not come out clearly as to how the incident started. As an when origin of the fight is not disclosed then it cannot be expected that the prosecution case can be accepted to be truthful. Because there is 8 always a point which defines as to how the occurrence started. If the prosecution withholds the beginning of the prosecution story then the theory of the prosecution becomes unworthy of credit. The learned counsel for the defence has also challenged that the recovered article cannot be read against the accused persons and has rightly not been read against them by the trial court because the blood found on the person of the accused and the recovered articles is not matched. The prosecution is further being condemned by the learned counsel for the appellants by stating that there is over writing on the investigation documents and that establishes unfairness of the investigation and that knocks out the bottom of the prosecution case. Per contra , the learned counsel for the State stated that the case of the prosecution is clearly made out by the statement of PW/1 Master Janki Lal. He is an independent witness unconnected with either of the parties. His name has been mentioned in the First Information Report. His presence has been accepted by the defence witnesses DW/1Pokar Ram and DW/2 Hazari Ram. When the presence of the prosecution witness is supported by the defence witnesses then this presence becomes natural and it cannot be stated that he was not present at the time when the occurrence took place. If this witnesses PW/1 Jankilal was present at the time of 9 occurrence then unless his statement is improbable or suffers from such serious infirmity and if it cannot be reconcealed then only it is to be discarded, otherwise it has to be believed. The trial court has believed that he is a natural witness. He is not a relative of witnesses. Nothing has come on record to show that there is any animosity in between the defence and the accused persons. No interest has been shown subsisting with the complainant party and therefore, he is an independent witness and whatever discrepancy has come in his statement that only show that after a considerable time when a witnesses is examined he may state certain things which are not in conformity with the prosecution case. But such infirmities do not dilute the prosecution case then such witness cannot be discarded. Thus, the trial court has accepted the testimony of PW/1 Janki Lal. Apart from Janki Lal there were two injured witnesses. It cannot be expected that they will spare the accused assailants and implicate a false person. There are checks available on record and in that light Mohini has been excluded by the court. The learned counsel for the prosecution has further stated that the delay in sending FIR to the court have not caused any prejudice to the defence. The accused has been assigned 10 participation in the crime. The allegation against the investigation that it was not fair is not founded on appreciation of the factual situation. Over-writing found in the police documents is only blown out of proportion. When there was animosity in between the parties there was a strong motive and thus, any specific inducement or immediate provocation was not necessary to be assigned. The accused had clearly made a mind to cause the occurrence, as has been narrated. They had come prepared from their house armed. We have considered the rival submissions and have given our thoughtful consideration to the material on record. The most important witness in this case is PW/1 Janki Lal. He is an independent witness, a literate citizen who discharges his duties as a teacher and no bias or grudge has been made out against him. He narrates the prosecution story as he saw and in that background the participation of accused Pokar Ram is corroborated from the fact of the injury found on the person of the deceased and the injured. As regards Mana Ram, he has been alleged to have caused lathi injuries. Lathi injury is not present because may be 11 while the sword was being used lathi was not considered to be an effective weapon and, therefore, the injury has no clear dimension as it could in absence of a sword. In that view of the matter, participation of Pokar Ram stands corroborated by the testimony of eye witnesses and the injured. The two injured eye witnesses cannot be considered to be one who would spare the actual assailant and in that view of the matter, the case against Pokar Ram stands amply proved. The criticism of the FIR being delayed has caused no prejudice to defence. It has not been shown that it has caused any prejudice to the defence. The report to the police, recored as Ex.P/43, was not a comprehensive and complete information and such an information cannot be treated to be one to give it a colour of first Information Report and because it discloses a very perfunctory information. Thus the arguments of the defence , in this connection , is of no consequence. The recoveries have already been discarded by the learned trial court and we do not think that we have to disturb that finding, in the light of direct evidence. As regards participation of accused Mana Ram is concerned his weapon has been said to be lathi. 12 There being no specific injuries of lathi on the person of the injured and the deceased, it would not be safe to ascribe him to have common intention with Pokar Ram. If he caused certain injuries which have not been noticed by the doctor then his conviction with the aid of Section 304, 302, 307, 326 and 324 IPC is not liable to be sustained. However, for minor infliction he can be convicted under section 323 IPC, instead of the other offences. In that light his conviction deserves to be interfered with as he deserves to be given benefit of doubt. Thus for a minor offence under Section 323 IPC he stands convicted and his conviction is accordingly altered from the charged Section to a minor offence. In the result , the appeal of Mana Ram is accepted. Because his participation is in a way at par with Mohini Devi . His participation is of minor character and in that view of the matter he is only convicted under Section 323 IPC and the sentence already undergone is considered sufficient so far as he is concerned. As regards the appeal of Pokar Ram, he has been assigned major role of causing injuries by sword. The neck of Sohan Lal has been cut. The injury is so severe that the deceased has succumbed to his injury immediately. Therefore, his conviction 13 under Section 302 IPC is maintained. The injuries sustained by the two injured were also caused by Pokar Ram. Therefore, his conviction under section 327, 326 and 324 is also sustained. His appeal fails. In the result, the appeal of Pokar Ram fails and the appeal of Mana Ram is partly allowed. He is convicted under Section 323 IPC and is acquitted of the charged Section. Mana Ram is sentenced to the already undergone sentence. He is on bail, his bail bonds are cancelled. As regards Pokar Ram, his conviction and sentence is maintained. He should serve out the remaining sentence. Compensation as imposed is maintained. (RAGHUVENDRA S.RATHORE),J. (BHAGWATI PRASAD), J. L.George