D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1) D.B.Criminal Jail Appeal No.967/2001 Govind Ram & anr. vs. The State of Raj. (2) D.B. Criminal Appeal NO.307/2002 Teja Ram vs. The State of Raj. against the judgment dated 22.2.2001 passed by the learned Additional Sessions Judge, Raisinghnagar (Sri Ganganagar) passed in Sessions Case No.6/2000. Date of Judgment: July 15th, 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA,J. Mr. R.S. Gill for the appellants. Mr. J.P.S. Choudharry, P.P. for the State. BY THE COURT ( Per Hon'ble Mr. Tatia, J): Two jail appeals were received from convicts Govind Ram and Teja Raj but convict Teja Ram preferred represented appeal No.307/2002 also. The two jail appeals, since were against the same judgment and order of the trial court and D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 2 were sent together, therefore, one appeal, i.e. Jail Appeal No.967/2001 one was registered. The appeals have been preferred to challenge the judgment and order dated 22.2.2001 passed by the learned Addl. Sessions Judge, Raisinghnagar (Sri Ganganaganar) in Sessions Case No.6/2002, by which the learned trial judge has convicted the appellant Govind Ram under Sections 302 and 341, IPC, whereas the appellant Teja Ram has been convicted under Sections 341 and 302 read with Section 34, IPC and sentenced them to undergo life imprisonment under Section 302 and 302/34, IPC respectively to the above accused. A fine of Rs.5000/- has been imposed upon accused Govind Ram and a fine of Rs.4000/- has been imposed upon accused Teja Ram. In default, Govind Ram has to undergo one year's rigorous imprisonment and in default by Teja Ram, he has to undergo six months rigorous imprisonment. The accused Govind Ram and Teja Ram both have been sentenced to undergo one month's rigorous imprisonment under Section 341, IPC with fine of Rs.500/- to each and in default thereof, to undergo 15 D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 3 days' rigorous imprisonment. Brief facts of the case are that complainant Jagdish on 6.11.1999 at 8 p.m. submitted FIR Ex.P.5 that he along with his nephew Om Prakash s/o Gopi Ram went to the village Bilochiya. They were returning from said village at about 6.30 p.m. and when they reached near the bus stand, they found accused Govind Ram and Teja Ram sitting on a liquor theka shop. Govind Ram had one knife in his hand. Immediately after seeing Om Prakash, Teja Ram and Govind Ram challenged Om Prakash that he (Om Prakash) did not come to give evidence on their (Teja Raj and Govind Ram's) saying, therefore, we will not leave you and we will kill you. Teja Ram ran towards Om Prakash and caught him and Govind Ram inflicted a blow on the chest of Om Prakash by the knife which went in the right side of the chest of Om Prakash. Om Prakash fell down there on the spot itself. One Setu Ram (PW- 1) also reached on the spot and some villagers also reached there. Setu Ram and complainant Jagdish (PW-7) challenged Govind Ram and Teja Raj, upon which both the accused D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 4 persons ran away. The victim Om Prakash was taken to the Government Hospital, Sri Vijainagar for treatment, where he was admitted. The complainant stated that Govind Ram and Teja Raj, with common intention to kill Om Prakash, inflicted the injuries. On the basis of above report, FIR Ex.P.5 was registered under Sections 341 and 302, IPC. During investigation, site map (Ex.P.1) and site report (Ex.P.1A), seizure memo of blood (Ex.P.2), seizure memo for the knife (Ex.P.3) were prepared in the presence of the witnesses. Injury report(Ex.P.9) was obtained. The recovered and seized articles were deposited in the Malkhana, which is entered in register Ex.P.10A. The articles were sent to FSL along with forwarding letter Ex.P.13. The post-mortem report (Ex.P.15) was obtained. The accused Govind Ram was arrested vide arrest memo Ex.P.17 and Teja Ram was arrested vide arrest memo Ex.P.18. FSL report Ex.P.21 was obtained and the accused gave information under Section 27 Evidence Act which was recorded as Ex.P.19. The prosecution produced all the above documents along with D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 5 other relevant documents and examined as many as 14 witnesses. The accused were examined under Section 313, Cr.P.C. wherein they stated that they have been falsely implicated. After trial, Govind Ram was convicted for offence under Sections 302 and 341, IPC and sentenced as mentioned above, whereas accused Teja Raj was convicted for the offence under Sections 341 and 302 read with Section 34, IPC and was sentenced as referred above. Hence these appeals have been preferred by these two accused persons. The learned counsel for the appellants vehemently submitted that the appellant Teja Raj has wrongly been implicated in the absolutely false case. According to the learned counsel for the appellants, it appears that all of sudden, some quarrel took place in which the victim suffered injury, that too one blow by knife and Teja Ram and Govind Ram both have been involved in a false case. PW-7 Jagdish, uncle of deceased Om Prakash, in his cross-examination clearly stated that before this incident, there was no dispute between the accused and the victim except that the accused D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 6 persons were asking the victim to give evidence obviously in their favour in some case. This vague statement is absolutely unbelievable because of the reason that the prosecution failed to prove that evidence of victim OM Prakash was necessary in any case in which the accused were involved. PW-7 Jagidish in his cross-examination, admitted that he had no knowledge for which case the accused were saying for the evidence of the victim. According to the learned counsel for the appellants, that was a day of festival, i.e. that was a day of Deepawali and Om Prakash was taking liquor and at the liquor shop, some one might have inflicted injuries upon Om Prakash. The learned counsel for the appellants also submitted that in fact Jagdish was not present there otherwise he would have tried to save the victim and in that he might have suffered injuries or at least blood stains but admittedly, as admitted by PW-7 Jagdish in his cross- examination, he did not intervene nor he suffered any injury. It is also submitted that the independent witnesses were not produced inspite of the fact that PW-7 Jagdish stated that D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 7 about 10-12 persons also reached on the spot at the relevant time. In cross-examination, PW-7 Jagdish admitted that his clothes also had blood of deceased Om Prakash but neither he gave his clothes to the police nor those clothes were recovered by the police and were sent to the FSL. That also proves that he was not present at the spot nor he took the victim to the hospital. It is also submitted that the prosecution tried to concoct a piece of document as deceased Om Prakash's dying declaration but ultimately they did not produce that dying declaration as evidence nor that was exhibited even when prosecution produced said document in trial court. That clearly shows that the complainant tried to fabricate evidence unsuccessfully to implicate the accused. The learned counsel for the appellants also referred the statement of PW-1 Setu Ram, PW-2 Nathu Ram and vehemently submitted that PW-1 Setu Ram, who according to the prosecution itself, was the eye-witness, clearly stated that Om Prakash was all alone when he suffered injuries. He also did not said any word against accused Teja Raj. PW-1 D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 8 Setu Ram contradicted his own earlier statement on material part. Therefore, it appears that true story has been suppressed by the prosecution. It is also submitted that in fact PW-1 Setu Ram was also not the eye-witness and he has been planted by the complainant. The statement of PW-2 Nathu Ram cannot be believed because of the simple reason that there was no reason for Govind Ram and Teja Ram to talk about victim Om Prakash while taking liquor at the relevant time nor they had any knowledge that Om Prakash will be coming and will be passing through this way, where the accused were sitting and taking liquor. Lastly, the learned counsel for the appellants submitted that no case is made out against appellant Teja Ram of committing any offence by him and even if any case is made out against accused Govind Ram then that appears to be a case of sudden fight while taking liquor in which Govind Ram, unintentionally might have inflicted injury by knife and that injury became fatal injury. Govind Ram did not repeat the blow and that clearly shows that he never intended to kill D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 9 victim Om Prakash. Therefore, it is apparent that there was no intention of Govind Ram to kill Om Prakash. It is also submitted that the motive is also absolutely weak, therefore, Govind Ram could have been convicted only under Section 304 Part II, IPC. It is also submitted that the accused have already suffered sentence of almost nine years by this time. The learned public prosecutor vehemently submitted that so far as death of Om Prakash by injury by knife is concerned, this fact is fully proved by the ocular evidence and finds full support from the medical evidence as well as from the post-mortem report. It is submitted that when the eye- witnesses proved inflicting of injuries by Govind Ram upon Om Prakash, who was helped by Teja Raj then the charges against both the accused are fully proved. It is also submitted that both were prepared and had common intention and, therefore, they were waiting for Om Prakash. Govind Ram and Teja Ram both actively took part in killing Om Prakash. It is also submitted that in fact there are no contradictions in the statements of the witnesses. Mere raising a doubt that some D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 10 other person may have killed Om Prakash, cannot destroy the trustworthy ocular evidence supported by medical evidence. Therefore, the trial court rightly convicted the appellants. We considered the submissions of the learned counsel for the appellants and the learned public prosecutor and perused the record. From the statement of PW-7 Jagdish, it is clear that he lodged the FIR (Ex.P.5) and in said report he stated that he along with Om Prakash when he reached near the bus-stand of village Bilochiya, Govind Ram and Teja Ram challenged Om Prakash and said that he (Om Prakash) is not giving evidence and, therefore, they will not leave him and they will kill him. He stated that Govind Ram inflicted injury by knife on the right side of chest of deceased Om Prakash. Om Prakash fell down on the spot. At that time, the witness PW-1 Setu Ram reached there. The witness PW-7 Jagdish also stated that some villagers were also reached there. The complainant Jagdish and Setu Ram along with some villagers took the deceased in the Government Hospital, Sri Vijaynagar. PW-9 D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 11 Dr. Devi Lal stated that the victim Om Prakash was brought in the hospital at 7.45 p.m. in injured condition. He examined the victim and found one incised wound 1”x1/2” in the right side of chest of the deceased. Dr. Devi Lal (PW-9) stated that at that time, the blood-pressure was not measurable nor pulse were recordable. The victim was given life saving medicines and was sent to Bikaner Hospital. He proved the injury report (Ex.P.9). As per injury report (Ex.P.9), the victim Om Prakash had one injury on his chest. In cross-examination, PW-9 Dr. Devi Lal stated that he found only one injury which was on the chest of the deceased. From the post-mortem report also, it is proved that the victim had one injury and that was incised wound in the chest. The case of death is shock, haemorrhage and peritonitis and that was due to injury no. 1 and 8. It will be worthwhile to mention here that injury no.1 is the injury which was suffered by the victim by knife. It appears from the post-mortem report that one injury on chest has been numbered as injury no.8 under the heading “description of injury”, whereas under the heading of “description of injury”, D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 12 there is mention of some marks of injury which were in fact not the injuries but cuts etc. due to the surgery performed on the body of the deceased. In the post-mortem report, therefore, one injury has been described as injury no. 1 and 8, which should have been made clear by the doctor to avoid confusion. Otherwise also, it is the prosecution's case that only one injury was inflicted upon the deceased. From the evidence referred above, it is fully proved that the victim Om Prakash died due to injury inflicted on him by knife. So far as Govind Ram is concerned, PW-1 Setu Ram, who appears to be an independent witness and trustworthy witness, clearly stated that in his presence, Govind Ram inflicted injury by knife upon Om Prakash and that too on Om Prakash's chest. His cross-examination has not effected his credibility, rather from cross-examination of PW-1 Setu Ram, his credibility sounds more. His statement is supported by medical evidence and there is no reason for him to give any false statement against Govind Ram. The presence of Jagdish on the spot also cannot be denied, merely because of the D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 13 reason that PW-1 Setu Ram has not stated anything against co- accused Teja Raj and he stated that Om Prakash was all alone. Therefore, it is clear that incident took place in a very short period and in that period, it is difficult to notice who was with the victim when the victim has already suffered injury in the chest by knife and, therefore, Setu Ram might not have noticed presence of complainant Jagdish along with Om Prakash. PW-7 Jagdish, who lodged the FIR just after the incident, stated that Govind Ram inflicted injury by knife in his presence. He went along with the victim to the hospital and thereafter lodged the report to the police. It is true that his statement that Teja Ram caught Om Prakash, has not been supported by the witness PW-1 Setu Ram but that has not affected the credibility of the witness PW-7 Jagdish about involving the accused Govind Ram. PW-2 Nathu Ram, though not eye-witness to the incident but stated that he saw Govind Ram and Teja Ram appellants taking liquor and talking that they will kill Om Prakash. He tried to make for understand D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 14 and thereafter left for his house. Since he is witness to the incident, therefore, from the evidence it cannot be inferred that Teja Ram caught victim Om Prakash before Govind Ram inflicted injury. In totality, total evidence against accused Teja Ram is oral evidence of PW-7 Jagdish and circumstantial evidence which is coming from the statement of PW-2 Nathu Ram and none else. PW-2 Nathu Ram is not eye-witness to the incident whereas PW-1 Setu Ram is eye-witness to the incident. He did not support the statement of PW-7 Jagdish. According to PW-1 Setu Ram, Om Prakash was going to his house and Govind Ram was coming from opposite side and inflicted injury upon Om Prakash by knife. Therefore, it is unsafe to rely upon the statement of PW-7 Jagdish for holding Teja Ram guilty for forming common intention for killing Om Prakash and it appears that suddenly Govind Ram inflicted injury upon Om Prakash. There is no evidence produced by which it can be gathered that Govind Ram was knowing it that Om Prakash will be coming through the way so that he may wait for Om Prakash for injuring him. The prosecution did not D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 15 produce evidence to show that in fact there was any case pending against Govind Ram or in any case in which Govind Ram was interested that evidence of Om Prakash was necessary and that could have been a reason for having so strong enmity of Govind Ram against Om Prakash so as to eliminate Om Prakash and there was no other way left for Govind for obtaining the evidence of Om Prakash. From the totality of the facts, it appears that on the day of Deepawali, near liquor shop, this incident occurred wherein Govind Ram inflicted injury without premeditation and all of sudden, he inflicted one injury only and did not repeat blow. Therefore, it appears that in sudden fight, accused Govind Ram might have used knife and because of that the victim Om Prakash died. At this juncture it will be worthwhile to mention here that one more Dr. P.N. Mathur (PW-3) who conducted the post-mortem, explained all incisions on the body of the deceased and in cross-examination stated that the victim Om Prakash's body had infection in peritoneal membrane and because of that infection, the death is possible. In view of the D.B.Criminal Jail Appeal NO.967/2001 Govind Ram & anr. vs. The State and connected appeal. 16 above reasons, the conviction of the appellant Teja Ram for the offence under Sections 341 and 304/34, IPC cannot be sustained and, therefore, is set aside. The conviction of appellant Govind Ram under Section 302 also cannot be sustained and the conviction of the appellant Govind Ram is altered from Section 302, IPC to one under Section 304 Part I, IPC. In view of the above, the D.B.Cr. Appeal No.307/2002 of appellant Teja Ram is allowed and his conviction and sentence for the charge under Sections 341, 302/34, IPC is set aside. He be released forthwith if not required in any other case. The D.B.Cr. Jail Appeal No.967/2001 of appellant Govind Ram is partly allowed and his conviction is altered from charge under Section 302, IPC to Section 304 Part I, IPC and he is sentenced to undergo ten year's imprisonment with fine of Rs.5000/-, in default thereof, to undergo one year's rigorous imprisonment. ( CHAND MAL TOTLA) ,J. (PRAKASH TATIA),J. mlt