D.B. Criminal Appeal No. 44/2004 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Khima Ram @ Khema Versus State of Rajasthan D.B. CRIMINAL APPEAL NO. 44/2004 Date of Judgment : 28.10.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Pradeep Shah for the appellants Mr. K.R. Bishnoi – Public Prosecutor BY THE COURT (PER HON'BLE JOSHI, J.) This judgment will decide the challenge made by two appellants Khima Ram @ Khema S/o Bhagga and Kana Ram @ Kishan S/o Teja, both by caste Gameti (Bhil) and residents of Upali-Barind, Police Station Kelwara, District Rajsamand against the judgment dated 29.11.2003 passed by the Additional District and Sessions Judge (Fast Track), Rajsamand in Sessions Case No. 44/2003, by which the learned trial court convicted both the accused appellants for the offence under Section 302/34, 397/34, 307/34 IPC and further accused appellant Khima Ram was also convicted under Section 4/25 of the Arms Act and they were sentenced as under :- (i) For the commission of offence under Section 302/34 IPC, Page 1 of 22 D.B. Criminal Appeal No. 44/2004 each of the accused appellant was sentenced to undergo life imprisonment alongwith a fine of Rs.1000/- and in default of payment of fine to further undergo three months' simple imprisonment. (ii) For the commission of offence under Section 397/34 IPC, each of the accused appellant was sentenced to undergo seven years' rigorous imprisonment alongwith a fine of Rs.1000/- and in default of payment of fine to further undergo three months' simple imprisonment. (iii) For the commission of offence under Section 307/34 IPC, each of the accused appellant was sentenced to undergo seven years' rigorous imprisonment alongwith a fine of Rs.1000/- and in default of payment of fine to further undergo three months' simple imprisonment. (iv) For the commission of offence under Section 4/25 of the Arms Act, accused appellant Khima Ram was sentenced to undergo six months' rigorous imprisonment alongwith a fine of Rs.500/- and in default of payment of fine to further undergo one month's simple imprisonment. Further all the sentences were ordered to run concurrently. Page 2 of 22 D.B. Criminal Appeal No. 44/2004 To decide the above challenge, it would be proper to narrate the facts of the prosecution story which may be summarized as under :- On 19.03.2003 at about 6.00 a.m., Narpat Singh, Sub-Inspector of the Police Station Rajnagar while holding his camp at Hospital Rajsamand recorded the statement (Ex.P.1) of Trivenidas Guru Ram Narayan Das, aged 27 years, resident of Bardal Ki Nal, Dhuni Ghata Thoriya, Police Station Kelwara, District Rajsamand, in which Trivenidas stated that in the previous night, i.e. in the intervening night of 18.03.2003 and 19.03.2003, at about 12.30-12.45 a.m., someone started throwing stones on the Dhuni, then he alongwith Ganeshdas woke up and went in the room adjacent to the Dhuni and closed the door from inside. Two persons broke up the door with Kulhari and entered the room and started beating both of them with a stick and a sword. He identified both the persons, out of which one was Khema Gameti resident of Barind having a sword in his hand and the second person was identified by his face, but he did not know the name of that person. Khema caused the injury on his left hand with the sword and the another person caused injuries to them with the stick. Ganeshdas died on the spot due to those injuries. Thereafter both the persons started to beat Bhanwardas. Laxman Bheel ran from the scene of Page 3 of 22 D.B. Criminal Appeal No. 44/2004 occurrence to the village. After that some persons came from the village and they managed to open the door of the room. Bhanwardas also succmbed to the injuries on the spot. The persons who caused the injuries and death of deceased Ganeshdas and Bhanwardas also took with them a Kamandal and Rs.700-800 from the Jholi. Kamandal bears the name of Ganeshdas. On the basis of the aforesaid statement, a Criminal Case No.33/2003 under Section 396, 307, 460, 450, 341, 323 IPC was registered and the investigation commenced. During the course of investigation, the injuries of Trivenidas were examined by the Medical Jurist, General Hospital, Rajsamand and the autopsy was conducted on the bodies of deceased Ganeshdas and Bhanwardas. Statements of the witnesses were recorded. Both the accused appellants were arrested and in consequence of the information recorded under Section 27 of the Indian Evidence Act, recoveries were made and blood stained clothes alongwith lathi and sword were sent to the Forensic Science Laboratory, Udaipur and the Forensic Science Laboratory report was obtained during the course of investigation. After conclusion of the investigation, charge-sheet was presented in the court of Judicial Magistrate, Kumbhalgarh, from where the case was committed to the court of Sessions Judge, Rajsamand and further the case was transferred to the court of Additional Page 4 of 22 D.B. Criminal Appeal No. 44/2004 District and Sessions Judge (Fast Track), Rajsamand for trial. The learned trial court charged the accused appellant Khima Ram @ Khema for the offence under Section 392, 302/34, 397/34, 307/34 IPC and 4/25 of the Arms Act and the accused appellant Kana @ Kishan was charged for the offence under Section 392, 302/34, 397/34 and 307/34 IPC, to which both the accused appellants did not plead guilty and claimed to be tried. The prosecution examined as many as 20 witnesses, namely, P.W.1 Trivenidas, P.W.2 Lachchharam @ Laxman, P.W.3 Bhima, P.W.4 Mod Singh, P.W.5 Mangu, P.W.6 Magna, P.W.7 Mohan Singh, P.W.8 Dr. Ramesh Chandra, P.W.9 Manohar Singh, P.W.10 Dinesh, P.W.11 Satya Narayan, P.W.12 Shel Singh, P.W.13 Narpat Singh, P.W.16 Niranjan Prasad, P.W.17 Dr. Narendra Kadam, P.W.18 Dr. Ravi Baya, P.W.19 Dr. L.N. Sen and P.W.20 Kishan Singh in support of its story. The incriminating evidence adduced against the accused appellants was put to them for their explanation under Section 313 CrPC and the accused appellants examined one witness, namely, D.W.1 Vakta, in their defence. The learned Additional District and Sessions Judge (Fast Track), Rajsamand vide judgment dated 29.11.2003 held the accused appellants guilty for the offences and punished them as narrated in the earlier paras. Page 5 of 22 D.B. Criminal Appeal No. 44/2004 Learned counsel for the accused appellants contended that the conviction of the accused appellant Khima Ram under Section 4/25 of the Arms Act cannot be sjustained because of the fact that no sanction for prosecution under the relevant provision of the Arms Act had been obtained from a competent authority, i.e. the District Magistrate, under Section 39 of the Arms Act, 1959 and in the absence of such sanction, the prosecution of the accused appellant Khima Ram under Section 4/25 of the Arms Act is bad in the eye of law, therefore, he should be acquitted from the charge under Section 4/25 of the Arms Act. We have considered the argument advanced by the learned counsel for the appellants and perused the relevant provisions of the Arms Act, 1959. Section 39 of the Arms Act is reproduced hereunder for ready reference :- “39. Previous sanction of the district magistrate necessary in certain cases.- No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate.” Under this provision only the prosecution in respect of the offence under Section 3 is prohibited and under Section 3 of the Arms Act only licence is required for acquisition and possession of firearms and ammunitions. In this particular case, the accused appellant Khima Ram was charged for possessing a Page 6 of 22 D.B. Criminal Appeal No. 44/2004 sword having the length of 2’6”, therefore, in our view, the provisions of Section 39 of the Arms Act are not applicable to the present case and further Government of Rajasthan by notification No. 11821Grah–9/92 dated 29.01.2000 has prohibited the possession of the sword having length of more than 10.16 cm., therefore, in our considered view, the argument advanced by the learned counsel for the appellants is not tenable. The learned counsel for the accused appellant further contended that the First Information Report Ex.P.1, which is a statement recorded by Narpat Singh, Sub-Inspector of the Police Station Rajnagar while holding his campt at the Government Hospital, Rajnagar, which does not disclose the name of accused appellant Kana and in this statement, complainant Trivenidas has disclosed that one person having sword in his hand was Khema and so far as the second person is concerned, he only knows him by face and since after the arrest of the accused appellant Kana, identification parade was not conducted and during the course of the trial only Trivenidas identified the accused appellant Kana, therefore, the learned trial Judge committed serious illegality and erred in convicting the accused appellant for the offences charged. The learned counsel for the accused appellants Page 7 of 22 D.B. Criminal Appeal No. 44/2004 argued that the learned trial court was remissed in appreciating the evidence of the eye witnesses and also of the recovery of articles and thereby recording the judgment of conviction. The learned counsel for the accused appellants further argued that P.W.8 Dr. Ramesh Chandra deposed in his cross-examination that the life of both the deceased could be saved, had the medical aid been provided to them at time. In the light of the above statement of P.W.8 Dr. Ramesh Chandra, the accused appellant Khima Ram also cannot be punished for the offences charged and therefore, argued that the judgment of conviction and order of sentence passed by the learned trial court is not sustainable and requires to be reversed. Per contra, learned Public Prosecutor while defending the judgment of the learned trial court vehemently argued that from the statements of P.W.1 Trivenidas and P.W.2 Lachchharam @ Laxman, the offence charged against both the accused appellants is proved beyond reasonable doubt and he further argued that both the witnesses are eye-witnesses and their presence at the scene of occurrence was natural and further there is no contradiction in the statements of these two eye- witnesses and the First Information Report was lodged without any delay. He also argued that P.W.1 while lodging the First Informaton Report although did not disclose the name of accused Page 8 of 22 D.B. Criminal Appeal No. 44/2004 appellant Kana in Ex.P.1, but on the same day the Investigating Officer recorded the statement of P.W.2 Lachchharam (Ex.D.2) and in that statement Lachchharam stated the name of Kana as the second assailant, therefore, the judgment of conviction and order of sentence passed by the learned trial court require to be affirmed and does not suffer from any illegality or infirmity. We have considered the rival arguments and perused the statements of the witnesses recording during the course of the trial. In this case the prosecution examined P.W.1 Trivenidas and P.W.2 Lachchharam @ Laxman as the eye-witnesses because as per the prosecution version there were four persons present at the scene of occurrence, out of which two persons, namely Ganeshdas and Bhanwardas died at the spot due to the injuries caused by both the accused appellants and Trivenidas sustained 6 injuries caused by both the accused appellants and the fourth person present at the scene of occurrence was Lachchharam @ Laxman, who immediately ran away from the scene of occurrence and informed the villagers about the incident and brought some villagers with him to the place of incident. P.W.1 Trivenidas deposed that on the relevant date in the midnight at about 12.00-12.30 a.m. he alongwith Maharaj Ganeshdas, Bhanwardas and one Lachchhiram were in the temple of Badrinarayan situated at Gameti Ghata Thoriya. He Page 9 of 22 D.B. Criminal Appeal No. 44/2004 alongwith Ganeshdas and Bhanwardas were sleeping on the Dhuni and Lachchhiram was sleeping in the room. At about 12.00-12.30 a.m. in the midnight, stones were thrown from upper side. He, Bhanwardas and Geneshdas woke up and all the three persons went inside the room. Thereafter Khima and Kana came there. Khima was armed with a sword and Kana was having a stick (lathi). There was light of lantern at the place of occurrence. Both the accused started to beat Bhanwardas. Then both the accused broke the door of the room and entered and started to beat Ganeshdas and himself. Ganeshdas succumbed to the injuries at the spot and he sustained injuries on hand, head, leg and lips. Accused Khima attacked him with sword and caused injuries on the hand and leg. Laxman Gameti, who was sleeping on upstairs in the room, woke up by the loud cries and came to the place of the incident and after identifying both the accused appellants, he immediately rushed to the village and brought some villagers with him. Bhanwardas also succumbed to the injuries at the place of occurrence. The accused took away with them a Kamandal and 700-800 Rupees. The accused attacked them with an intention to commit robbery. The Kamandal which was taken away by the accused appellants was bearing the name of Ganeshdas. This witness further identified the Kamandal as well the as the clothes recovered by the police so also the rupees. This witness further deposed that the statement, Ex.P.1, bears his signature from ‘A’ to ‘B’. Page 10 of 22 D.B. Criminal Appeal No. 44/2004 P.W.2 Lachchharam @ Laxman while corroborating the evidence of P.W.1 Trivenidas also deposed that when he woke up and rushed to the place of the incident, he saw Khima and Kana who were beating Ganeshdas, Trivenidas and Bhanwardas. Kana was having a lathi in his hand and Khima was armed with a sword. Both the accused wanted to take away the money with them, therefore, they casued injuries to all the three persons. Both Ganeshdas and Bhanwardas succumbed to the injuries at the spot. The witness also identified the Kamandal and other articles. This witness also deposed that police inspected the scene of occurrence and prepared the site memo Ex.P.3. He also admitted his signature on Panchayatnama Lash (Ex.P.4 and Ex.P.5), seizure memo (Ex.P.6 and Ex.P.7) and other documents Ex.P.8 and Ex.P.9. P.W.3 Bhima is a witness who reached the place of occurrence with Lachchha when Lachchha called the villagers to the place of occurrence. He deposed that he asked Lachchha whether he could identify the assailants, then Lachchha stated that he identified the assailants as Khema and Kana residents of Barind. P.W.4 Mod Singh deposed that the Investigating Officer inspected the place of the incident and prepared the site Page 11 of 22 D.B. Criminal Appeal No. 44/2004 memo (Ex.P.3). Police also seized blood stained Dhoti, Gudri and stick and also prepared other relevant documents. He admitted his signature on the memos. He further identified in the court all the articles seized by the police. P.W.5 Mangu and P.W.6 Magna did not corroborate the prosecution story and both the witnesses denied the fact of arrest of the accused appellants in their presence. P.W.7 Mohan Singh while corroborating the evidence of P.W.4 Mod Singh deposed that the police seized the clothes of Kana, Kamandal, lathi, blood stained pant and stick and 300 rupees from the pocket of the pant of Kana. Police also recovered a Kulhari (axe). He also deposed that the Investigating Officer recovered a sword from the residence of Khema so also blood stained clothes. He also identified in the court the articles recovered in his presence and also admitted his signatures on the documents. P.W.8 Dr. Ramesh Chandra deposed that on 19.03.2003, he was posted as Medical Officer at Primary Health Center, Gajpur and on that day on the request of the Police Station Kelwara, he conducted the autopsy on the body of deceased Bhanwardas and he observed the following external injuries on the body of the deceased Bhanwardas :- Page 12 of 22 D.B. Criminal Appeal No. 44/2004 (i) Fracture mandible left ramus (ii) Fracture ribs left side 4 and 5, right side 3, 4, 5, 6 and 7 (iii) Lacerated wound 2 x 1 cm left eye-brow (iv) Contusion 7 x 3 cm. on back 4 x 3 cm on lid (v) Contusion 7 x 6 cm. on left on left arm (vi) Incised wound 3 x 1 x 2 cm. deep on left thigh The cause of the death of deceased Bhanwardas was injuries on the vital parts of the body. He further conducted the autopsy on the body of deceased Ganeshdas and he observed the following external injuries on the body of deceased Ganeshdas :- (i) Fracture right forearm bones (ii) Fracture both legs bones (iii) Fracture neck femur left (iv) Fracture ribs right 3 and 4 and left 3, 6, 7 (v) Lacerated wound – 6 x 2 cm on left frontal 3 x 1 cm. on right eye upper lid The cause of death of deceased Ganeshdas was Hypovolumic shock. Further he admitted his signature on both the postmortem reports Ex.P.20 and Ex.P.21. P.W.9 Manohar Singh deposed about keeping the Malkhana articles in the sealed packets in the Malkhana of the Police Station Kelwara. P.W.10 Dinesh is the photographer who snatched the photographs of the deceased and the scene of occurrence and proved the negatives as Ex.P.25 to Ex.P.35 and photos as Page 13 of 22 D.B. Criminal Appeal No. 44/2004 Ex.P.25A to Ex.P.35A. P.W.11 Satya Narayan is the witness who reached the place of the incident to take the injured to the hospital. He deposed that when he reached the place of occurrence, he saw the dead bodies of Bhanwardas and Ganeshdas and Trivenidas was injured. P.W.12 Shel Singh is the witness who deposed that on 17.04.2003 he carried the sealed Malkhana articles to the Forensic Science Laboratory, Udaipur after obtaining a forwarding letter from the office of the Superintendent of Police, Udaipur. P.W.13 Narpat Singh deposed that on 19.03.2003, he was posted as Sub-Inspector at the Police Station Rajnagar. On that day he received a telephonic information that Trivenidas is seriously injured and admitted in the hospital. On that day at 5.30 a.m., he alongwith Head Constable Sajjan Singh reached the District Hospital, Rajsamand and recorded the statement of Trivenidas as Ex.P.1 and further forwarded the statement (Ex.P.1) to the Police Station Kelwara for the registration of the criminal case. P.W.14 Sajjan Singh corroborated the evidence of Page 14 of 22 D.B. Criminal Appeal No. 44/2004 P.W.13 Narpat Singh. P.W.15 Devkaran Singh deposed that on 19.03.2003 he received Ex.P.1 statement at 8.15 a.m. brought by Head Constable Sajjan Singh and he registered the case No. 33/2003 on the basis of the statement of Trivenids (Ex.P.1). P.W.16 Niranjan Prasad deposed that on 18.04.2003 he was posted as Station House Officer at Police Station Kelwara. He filed charge-sheet against the accused appellants Khima and Kana. P.W.17 Dr. Narendra Kadam deposed that on 19.03.2003 he was posted as Medical Jurist in Maharaja Bhoopal Hospital, Udaipur. On that day on his direction x-ray of Trivenidas was conducted and as per the x-ray film, he prepared the x-ray report Ex.P.36 and further he admitted his signature from 'A' to 'B' on Ex.P.36. He also admitted x-ray film as Ex.P.37. P.W.18 Dr. Ravi Baya corroborated the evidence of P.W.8 Dr. Ramesh Chandra because he was a member of the Medical Board. P.W.19 Dr. L.N. Sen is the Medical Jurist who Page 15 of 22 D.B. Criminal Appeal No. 44/2004 examined the injuries on the body of injured Trivenidas and deposed that on 19.03.2003 while working as Medical Jurist at General Hospital, Rajsamand, he examined the injuries on the body of Trivenidas and observed the following 6 injuries on his body, out of which 5 injuries were simple in nature caused by a blunt weapon and injury No. 4 was grievous in nature because it was a fracture of ulna bone of the left hand :- (i) Abrasion - 8 x 3 cm. - back of thigh – simple – blunt (ii) Abrasion – 3 x 2 cm. - left forearm – simple – blunt (iii) Swelling 4 x 3 cm. - Right parietal region – simple – blunt (iv) Lacerated wound swelling – 6 x 4 cm. muscle deep – left forearm (v) Swelling 2 x 2 cm. left eye-brow – simple – blunt (vi) Swelling – 2 x 1 cm. lower lip – simple - blunt P.W.20 Kishan Singh is the Investigating Officer who deposed about the registration of the case and the various steps taken during the course of the investigation by him including the arrest of the accused appellants and the recoveries made in consequence of the information recorded under Section 27 of the Indian Evidence Act. Both the accused appellants in their statements under Section 313 CrPC stated that they have been falsely implicated for the reason that they took part in the election campaign against P.W.7 Mohan Singh and they further took the specific plea of alibi by stating that on the relevant date they Page 16 of 22 D.B. Criminal Appeal No. 44/2004 were at their residence. The defence witness D.W.1 Vagata deposed that deceased Ganeshdas had illicit relations with some lady and he further deposed that on the relevant date of incident, both the accused appellants were at their residences. The prosecution, in support of its case, relied primarily on the evidence of eye-witnesses P.W.1 Trivenidas and P.W.2 Lachchharam. In addition, the prosecution relied on the recoveries made, pursuant to the disclosure statements of the accused. The trial court recorded a comprehensive judgment and discussed the evidence under two broad heads :- (i) the eye-witnesses' evidence of P.W.1 Trivenidas and P.W.2 Lachchharam and (ii) the circumstantial evidence, which included the motive behind the incident and the recoveries of the weapons of offence along with blood stained clothes of the accused as well as the deceased. The learned trial court examined the evidence of two eyewitnesses and recorded a positive finding regarding trustworthiness of two eye witnesses and also the recovery of weapons and other articles. Page 17 of 22 D.B. Criminal Appeal No. 44/2004 As regards conviction under section 4/25 of the Arms Act against appellant Khima Ram, we have dealt with the arguments advanced by the learned counsel for the appellant in earlier paras. Now, we would like to discuss the other evidence in the light of arguments advanced by both the parties, along with the entire evidence available on record. As per the deposition made by P.W.8 Dr. Ramesh Chandra and P.W.18 Dr. Ravi Baya, the cause of death of deceased Bhanwardas was injuries on the vital parts of the body and the cause of death of deceased Geneshdas was due to hypovolumic shock due to multiple injuries. The evidence of both the witnesses could not be shattered even in cross examination. Thus, the death of both the deceased was homicidal, is proved beyond reasonable doubt. Now, we are coming to the statement of eye witnesses. Trivenidas (P.W.1) although had not mentioned the name of the accused appellant Kana in his statement Ex.P.1, which was primarily a document on the basis of which criminal case was registered. This First Information Report was submitted before Narpat Singh (P.W.13), Sub-Inspector of Police Station Rajnagar on 19.03.2003 at 5.30 a.m. and on the same day P.W.2 Lachchharam was examined by the Investigating Officer Page 18 of 22 D.B. Criminal Appeal No. 44/2004 who in turn disclosed the names of both the accused appellants. P.W.2 Lachchharam during the course of trial also deposed that he saw both the accused appellants at the scene of occurrence and Khima Ram was armed with a sword and Kana was having a lathi in his hand. The presence of both the eye-witnesses had been proved by other witnesses who deposed that P.W.2 Lachchharam came to the village to call other persons who reached the place of incident just after the occurrence. Thus, the evidence of P.W.1 Trivenidas cannot be disbelieved simply on the ground that he did not disclose the name of one accused appellant Kana in his First Information Report (Ex.P.1). Learned trial court