D.B. Criminal Appeal No. 818/2003 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Parsaram Versus State of Rajasthan D.B. CRIMINAL APPEAL NO. 818/2003 Date of Judgment : 26.08.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Mahaveer Bishnoi – Amicus Curiae for the appellant Mr. K.R. Bishnoi – Public Prosecutor BY THE COURT (PER HON'BLE JOSHI, J.) This appeal has been filed by accused appellant Parsaram S/o Nimbaram Jat, resident of Village Mornawada, Police Station Khedapa, District Jodhpur against the judgment and order dated 25.07.2003 passed by learned Additional Sessions Judge (Fast Track), Jodhpur in Sessions Case No. 76/2003, whereby the accused appellant was convicted for commission of offence under Section 302 IPC and sentenced to life imprisonment and fine of Rs.500/- and in the event of non- payment of fine, further to undergo one month's rigorous imprisonment. At the relevant time the accused appellant was serving life term sentence, therefore, the learned trial court further ordered that the life term sentence awarded in this case shall run consecutive to the earlier life term sentence. Page 1 of 11 D.B. Criminal Appeal No. 818/2003 The nub of the prosecution story as disclosed during the course of investigation and trial was that on 30.01.2003, Superintendent, Central Jail, Jodhpur forwarded a report to the District Magistrate, Jodhpur and its copy was endorsed to the Police Station Udaimandir stating that in the night at around 12.45 am. in barrack No. 3 of ward No. 7, the accused appellant Parsaram, serving the life sentence, caused injuries to Rikabchand S/o Chimnaram, who was also serving the life term imprisonment in the same barrack. The injuries were caused with an iron dolchi, weighing 2 kg., at the temple region of the injured. On hearing the loud cries, the other prisoners caught the accused appellant Parsaram, but till then he had given 3-4 blows to the deceased. In the night the injured was given treatment at the jail hospital, but looking to his serious condition, he was referred to Mathura Das Mathur Hospital, Jodhpur, where in the next morning he succumbed to the injuries. On this report a criminal case No. 43/2003 was registered at the Police Station Udaimandir under Section 303 IPC and the investigation commenced. During the course of investigation, site was inspected by the Investigating Officer, autopsy on the dead body of Page 2 of 11 D.B. Criminal Appeal No. 818/2003 deceased was conducted, statements of the witnesses were recorded, weapon of offence was recovered, the accused appellant was arrested and after usual investigation, a charge- sheet was filed in the Court of Judicial Magistrate (First Class) No. 3, Jodhpur, from where the case was committed to the Court of Sessions Judge for trial and ultimately the case was transferred to the Court of Additional District and Sessions Judge (Fast Track), Jodhpur. The accused appellant was charged for commission of offence under Section 302 IPC, to which he did not plead guilty and claimed to be tried. The prosecution examined as many as 21 witnesses, namely, P.W.1 Buddharam, P.W.2 Surjaram, P.W.3 Shivnarayan, P.W.4 Shyam Sundar Bissa, P.W.5 Futarmal, P.W.6 Chhaganlal, P.W.7 Hastimal, P.W.8 Gen Singh, P.W.9 Firoz Ahmed, P.W.10 Kojaram, P.W.11 Ramlal, P.W.12 Dr. Jagdish Jugtawat, P.W.13 Ghanshyam, P.W.14 Narpat Singh, P.W.15 Tej Singh, P.W.16 Sumer Singh, P.W.17 Narpat singh, P.W.18 Ramesh, P.W.19 Kishor Singh, P.W.20 Shokat Khan and P.W.21 Satyadev Ada. The incriminating evidence available on record against the accused was put to him for explanation under Section 313 CrPC. The accused appellant in his statement took a simple defence of his innocence and he adduced no evidence in his defence. Page 3 of 11 D.B. Criminal Appeal No. 818/2003 The learned trial court after conclusion of the trial held the accused appellant guilty for the commission of offence under Section 302 IPC and sentenced him as mentioned above. The learned trial court while relying upon the ocular evidence, the evidence of res gestae and the report of the Forensic Science Laboratory, convicted the accused appellant for commission of offence under Section 302 IPC. The autopsy on the body of the deceased was conducted by P.W.12 Dr. Jagdish Jugtawat and he noticed 6 external injuries on the body of the deceased. All the injuries were found to be ante-mortem in nature. The injuries noticed by the P.W.12 Dr. Jagdish Jugtawat are as follows :- (i) Stitched lacerated wound 4 cm. long on left side of fore-head. (ii) Stitched lacerated wound 3 cm. long on left parietal region. (iii) Stitched lacerated wound 2 cm. long on left eye brow. (iv) Stitched lacerated wound 2 cm. long on left pinna. (v) Abrasion 2 cm. x ½ cm. on right ring finger dorsally. (vi) Abrasion 2 cm. x ½ cm. on right middle finger dorsally. In the opinion of the P.W.12 Dr. Jagdish Jugtawat, the cause of death was internal head injury. He also deposed that he prepared the post-mortem report Ex.P.20. Thus, in view of the statement of P.W.12 Dr. Jagdish Jugtawat, the death of deceased Rikabchand was established to be homicidal in nature. Page 4 of 11 D.B. Criminal Appeal No. 818/2003 The other incriminating evidence relied upon by the learned trial court was that of co-convicts who were also serving sentences in the same barrack and further the report of the Forensic Science Laboratory adduced in the evidence by the prosecution. The main contention of the learned Amicus Curiae appearing for the accused appellant was that the learned trial court erred in relying upon the evidence of P.W.8 Gen Singh, P.W.9 Firoz Ahmed, P.W.10 Kojaram, P.W.11 Ramlal, P.W.13 Ghanshyam and on the report of the Forensic Science Laboratory (Ex.P.30). The learned Amicus curiae further argued that all the alleged eye-witnesses resiled from their previous versions and were declared hostile still the evidence of those witnesses were relied upon by the learned trial court which suffered from infirmity and illegality and on the basis of above evidence, the order of conviction against the accused appellant could not be passed. Per contra, learned Public Prosecutor defended the impugned judgment vehemently and submitted that testimony of hostile witnesses cannot be discarded altogether. These witnesses clearly, unequivocally and unanimously stated that Page 5 of 11 D.B. Criminal Appeal No. 818/2003 they saw a dolchi in the hands of the accused who put it near the gate of the barrack. This conduct of the accused being relevant as res gestae was put to accused but he had not furnished any explanation to it. This dolchi was found stained with blood of the deceased as per Forensic Science Laboratory Report (Ex.P.30). Hence, circumstances unfailing indicates only and only the guilt of the accused. We have considered the rival contentions of both the parties and also perused, evaluated and scanned the evidence on record. As per Section 6 of the Indian Evidence Act, facts which though not in issue are so connected with the fact in issue as to form part of the same transaction are relevant whether they occoured at the same time and place or at different times and places. Illustration (a) appended to Section 6 of the Indian Evidence Act reads as under :- “(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, it is relevant fact.” Conduct of the accused appellant in putting blood stained dolchi near the gate of the barrack is thus relevant and has been proved beyond doubt. In addition to it, there was Page 6 of 11 D.B. Criminal Appeal No. 818/2003 evidence of extra judicial confession as P.W.8 Gen Singh in his examination in chief deposed that accused Parsaram had confessed before him about the mistake committed by him and further Parsaram had told him that he had beaten Rikabchand. This find corroboration by the statements of P.W.9 Firoz Ahmed, P.W.10 Kojaram and P.W.13 Ghanshyam who deposed about the same fact. There was no evidence regarding their enimical relations with the accused or friendly relations with the deceased. P.W.9 Firoz Ahmed also deposed the same evidence. Further P.W.10 Kojaram who was also a co-prisoner serving the sentence of life term deposed that when he woke up, blood was oozing from the head of Rikabchand and Parsaram was placing the iron dolchi near the gate of the barrack. He saw parsaram while placing the iron dolchi on the floor and injuries on the head of Rikabchand. P.W.11 Ramlal deposed that on hearing loud cries he woke up and saw in the barrack that blood was oozing from the head of Rikabchand. P.W.13 Ghanshyam also deposed about the extra-judicial confession made by the accused appellant before him and he deposed that Parsaram had told him that Rikabchand prevented him to wear the shoes and for that displeasure he had caused injury by dolchi to Rikabchand. The above witnesses, those who had deposed about the extra judicial confession made by the accused appellant as well as about laying the dolchi on the floor by the accused Page 7 of 11 D.B. Criminal Appeal No. 818/2003 appellant just after the incident, did not depose anything even in the cross-examination so that the statements of these witnesses could not be relied upon. Their presence at the place of occurrence was natural. Some of them were co-prisoners serving life imprisonment residing in the same barrack and so far as the extra judicial confession is concerned, all the witnesses who had deposed about that fact were public servants serving in the Central Jail, Jodhpur and these witnesses could not be termed as interested witnesses or having any enmity with the accused appellant, therefore, in our view the learned trial court committed no error in relying upon the statements of these witnesses. Now coming to the Forensic Science Laboratory report Ex.P.30, there was ample evidence on record that the blood stained iron dolchi and blood stained clothes Kurta, Baniyan and Pajama of the deceased were seized by the Investigating Officer during the investigation and they were kept in sealed condition in Udaimandir Police Station and during the course of investigation these articles alongwith other articles were sent to the Forensic Science Laboratory for identifying the blood group on the iron dolchi as well as the blood stained clothes of the deceased. There was ample evidence showing that the seal on all the aritcles remained intact throughout and the report of the Forensic Science Laboratory further had Page 8 of 11 D.B. Criminal Appeal No. 818/2003 disclosed that iron doli and Kurta and Pajama of the deceased were found to be stained with 'A' group blood, thus, there was no reason to disbelieve this corroborative piece of evidence. The next argument of the learned Amicus Curiae for the accused appellant was that the dolchi was not recovered at the instance of the accused appellant as per the information recorded under Section 27 of the Indian Evidence Act, therefore, the recovery of the iron dolchi could not be relied upon, but the argument advanced by the learned Amicus Curiae was baseless because of the fact that when there was ample evidence regarding the fact that just after the incident, the accused appellant put down the iron dolchi on the floor of the barrack, then there was no question of any recovery at the instance of the accused appellant. The learned trial Judge appreciated the evidence of each witness in detail and we have also perused the statements of all the witnesses. The evidence produced by the prosecution had proved it beyond reasonable doubt that it was the accused appellant who had caused injuries on the head of the deceased Rikabchand by iron dolchi and further as per the evidence of P.W.12 Dr. Jagdish Jugtawat, there were fractures of left temporal bone, parietal bone and occipital bone. Further P.W.12 Dr. Jagdish Jugtawat had deposed that the injuries caused on the Page 9 of 11 D.B. Criminal Appeal No. 818/2003 head of the deceased were sufficient in the ordinary course of nature to cause death, thus, the death of the deceased was caused due to the injuries inflicted by the accused appellant on his head, thus, there was intention on the part of the accused appellant to cause the death of the deceased Rikabchand and therefore, he was guilty for the commission of offence under Section 302 IPC and thus, the order of conviction passed by the learned trial Judge does not require any interference and deserves to be affirmed. Accordingly, the judgment of conviction against the accused appellant Parsaram dated 25.07.2003 passed by learned Additional Sessions Judge (Fast Track), Jodhpur in Sessions Case No. 76/2003 is affirmed. Now coming to the point of sentence, the learned Amicus Curiae argued that the learned trial court ordered that the life term sentence passed in this case would be served after the completion of the earlier life term sentence, i.e. the life term sentence in this case would be served consecutive to the earlier life term sentence. The contention of the learned Amicus Curiae is that as per Section 427 of the CrPC, this order could not be passed and this sentence could only be ordered to be served concurrently. We have given our thoughtful consideration and persused Section 427 of the CrPC. As per Section 427 of the Page 10 of 11 D.B. Criminal Appeal No. 818/2003 CrPC, the sentence could be ordered to be served concurrently to the earlier life term sentence, therefore, while maintaining the sentence awarded to the accused appellant as life term imprisonment alongwith fine of Rs.500/- and in default of payment of fine, to further undergo one month's rigorous imprisonment, we modify the order of sentence to the effect that the life term sentence awarded in this case shall run concurrently to the earlier life term sentence which the accused appellant was serving. Resultantly, this appeal is partly allowed and while affirming the judgment of conviction and sentence passed against the accused appellant Parsaram dated 25.07.2003 in Sessions Case No. 76/2003, we modify it to the extent that this sentence shall run concurrent with the term of earlier life imprisonment. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. Pramod Page 11 of 11