1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR **** :JUDGMENT: Chaina Ram Vs. State of Rajasthan **** D.B. CR. JAIL APPEAL NO.619/2002 AGAISNT THE JUDGMENT AND ORDER DATED 24.7.2002 IN CR. CASE NO.52/2002 PASSED BY DISTRICT & SESSIONS JUDGE, (FAST TRACK), JODHPUR. <><><> Date of Order : 19 Feb., 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE BHANWAROO KHAN Mr.Bhawan Singh, for the appellant Mr. VR Mehta, Public Prosecutor. BY THE COURT: (Per Hon'ble Mr. Justice Prakash Tatia) This jail appeal has been preferred to challenge the judgment of the learned Addl. District & Sessions Judge (Fast Track) Jodhpur dated 24th July, 2002 by which the appellant Chaina Ram S/o Koja Ram, by caste Bishnoi, resident of Binayakpur Bhawad, Police Station Mathaniya, District Jodhpur has been convicted under Section 302, 2 325, and 232 IPC and sentenced to under to life imprisonment under Section 302 IPC with a fine of Rs.1000/- and in default to payment of fine to undergo three months RI, under Section 325 IPC three years RI with fine of Rs.500/- and in default thereof to undergo one month's RI and under Section 323 IPC sentenced for one year's RI. As per the prosecution case on 27th Oct., 2001 complainant Sukhram submitted a Tahrir report Ex.P/7 to the SHO, Police Station Mathaniya stating therein that yesterday night he went to house of his elder father's son's Jagram's home. When they were talking in the night at about 10.00 PM they saw some fire in the Dhani of accused Chaina Ram. They all ran to reach there. Jagram reached there first and after him he (Sukhram) and one Hukamaram rushed to spot. Jagram tried to control the fire then the accused Chaina Ram hit with the Kassi on the head of Jagram whose head broke down and he fell down there. Chainaram inflicted more injuries on the legs of Jagram by Kassi. By this time Hukmaram, Joraram, Bhakharram, Chainaram and Budharam reached near and tried to 3 intervene then the accused Chainaram ran after them. When they tried to brought Jagram at Jodhpur, he died in the way, therefore, they again went to the Dhani of Jagram. On the report of Sukhram (Ex.P/7), a case no.169/2001 under Section 436 and 302 IPC was registered and after investigation, the challan was submitted in the court. The charges under Section 323, 325 and 302 IPC were framed by the court, which were denied by the appellant and appellant sought trial. Prosecution produced as many as 18 witnesses and 29 documents during trial. The statements of accused-appellant were recorded under Section 313 Cr.P.C. wherein he denied the allegations. However, he did not produce any witness in defence. In his statements under Section 313 Cr.P.C. he stated that on 26th Oct., 2001 he went to Jodhpur and came in next morning at 12.00 AM and when he dropped down near the Gangaram Ki Pyou then one person told him that his Dhani has been burned and his brother Kishnaram has been beaten and is lying injured in the Dhani. When he reached to his Dhani, he found the same burned and Kishnaram lying there injured. Kishnaram told him that 4 Jagram fought with him and at that time Sukhram, Hukmaram, Joraram, Bhakharram, Chainaram, Bhudharam, Poonram, Bhinyaram and Devaram were also present. Joraram told him that Jagram has died and Kishnaram may also die, therefore, he be given treatment. He stated that thereafter, Kishnaram was taken by Sukhram etc and he could not know where Kishnaram was taken by them. However, after some time, Sukhram came with police at Kishnaram's Dhani and got appellant arrested. As per postmortem report Ex.P/12 the cause of death is coma due to head injury due to multiple fracture of scalp fracture. As per FSL report Ex.P/25 dated 31st Dec., 2005 the cloths of victim and Kassi – the weapon of offence were stained with human blood. In this case, PW-4 Sukhram, PW-5 Joraram, PW-6 Hukamaram, PW-8 Budharam, PW-9 Kishnaram and PW-11 Rajaram are the eye witnesses who fully supported the prosecution case. It is worthwhile to mention here that presence of all the prosecution witnesses who are witness as per prosecution has been admitted by the accused appellant in his statement recorded under Section 313 5 Cr.P.C. PW-5 Sukhram is the eye witness and submitted the report on the basis of which FIR was registered. He clearly state that when they rushed to control the fire in the Dhani of Chainaram, the appellant accused hit on the head of Jagram with Kassi and Jagram's head broke down instantaneously and Jagram fell down. The accused Chainaram thereafter inflicted more injuries on both the legs of Jagram by Kassi when Hukamaram, Joraram, Bhakharram, Buharam and Chianaram tried to intervene, the accused tried to ran after them. Jagram died in the way when he was taken to hospital and he also proved the site report Ex.P/2. The only contradiction shown by the defence is that in Ex.P/7 – the report, the witness Sukhram mentioned that Kassi was lying on the spot whereas in his statement he stated that Chianaram ran with the Kassi. That contradiction in totality of the evidence of Sukhram cannot destroy the creditability of the witness Sukhram. The prosecution witness PW-5, Joraram, PW-6 Hukmaram and PW-8 Budharam fully supported prosecution case in their statements and even after thorough cross- examination the defence could not demolish these 6 witnesses or could brought on record any inconsistency in the statements of these witnesses. Even PW-9 Kishnaram who is brother of appellant-accused stated that Chainaram burned the Dhani and when he tried to control the fire, Chainaram tried to hit him with Kassi and inflicted injuries on his back, head and left hand. He also supported the prosecution and stated that after that he went away from that place and Jagram and others reached there and tried to control the fire then he heard that Chainaram inflicted injury on the head of Jagram. The appellant in his statement recorded under Section 313 Cr.P.C. also admitted that Kishnaram suffered some injuries but according to appellant those injuries were caused Jagram deceased whereas the witnesses who were admittedly present on spot and their presence on spot at relevant time has been admitted by the accused appellant in his statement under Section 313 Cr.P.C. clearly stated that Chainaram himself inflicted fatal injury on the head of Jagram. The accused appellant's brother Kishnaram denied the suggestion of the appellant that he (Kishnaram) inflicted injury upon Jagram causing his death. 7 In view of the above evidence on record, the prosecution fully established the fact that appellant accused inflicted fatal injury on the head of Jagram and it will be further relevant that the accused appellant did not try to prove his defence that he left the village on 26.10.2001 for Jodhpur and came in the village in noon on next day on 12.00 AM and there he came to know about the incident. He further failed to prove that Jagram inflicted injury upon Kishnaram and, therefore, his plea of alibi is liable to be rejected. There is no merit in the appeal and the appeal of the appellant is dismissed. [BHANWAROO KHAN], J. [PRAKASH TATIA],J. c.p.goyal/-