1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Kesra Ram & ors. Vs. State of Rajasthan (1)D.B.CRIMINAL APPEAL NO.64/2004 Kesra Ram Vs. State of Rajasthan (2)D.B.CRIMINAL APPEAL NO.93/2004 against the judgment dt.24.11.03 passed by the Sessions Judge, Jaisalmer, in Sessions Case No.20/2001. Date of Judgment: Sept.11, 2008 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.P.N.Mohanani, for appellants. Mr.J.P.S.Choudhary, Public Prosecutor. REPORTABLEBY THE COURT : (PER HON'BLE THANVI J.) 1. Both these Criminal Appeals including one sent through jail by accused Kesra Ram, are arising out of 2 the same incident, and, therefore, they are being disposed-of by this common judgment. 2. These appeals are directed against the judgment of learned Additional District & Sessions Judge, Jaisalmer dt.24.11.203, whereby he convicted accused appellants Uda Ram and Kesra Ram under sections 302 and 307 IPC and accused appellant Asu Ram under sections 302/34 and 307/34 IPC. For the offence u/s.302 IPC, accused Uda Ram and Kesra Ram were sentenced to undergo life imprisonment along with a fine of Rs.1000/- each and in default, to further undergo six months' R.I. and for the offence u/s.307 IPC, they were sentenced to undergo ten years' R.I. along with a fine of Rs.1000/- each and in default, to further undergo six months' R.I. So far as accused appellant Asu Ram is concerned, for the offences u/ss.302/34 & 307/34, he was sentenced to undergo life imprisonment along with a fine of Rs.1000/- and in default, to further undergo six months' R.I. and ten 3 years' R.I. along with a fine of Rs.1000/-and in default, to further undergo six months' R.I. respectively. All the substantive sentences were ordered to run concurrently. 3. In nutshell, the prosecution story is that on 25.4.01, Rai Saheb alias Hari Singh was sleeping on cot at his Murabba Chak No.72-73, CWB, Tawriwala, near him his daughter Gayatri Devi was on the second cot and his wife Kamla alongwith his son Ramgopal were sleeping on the third cot. In the mid night at 12.00, accused Uda Ram, Kesra Ram and Asu Ram came there. Accused Kesra was having axe in his hand, Uda Ram was having sword in his hand and Asu Ram was having `Angochha' (towel) and belt in his hand. Accused Uda Ram inflicted sword blow on the head of Hari Singh and Kesra Ram gave axe blow. On hearing the cries, his daughter Gayatri Devi, wife Kamla and his son Ramgopal woke up. Accused Asu Ram put `Angochha' (towel) on the mouth of Gayatri Devi, 4 accused Kesra Ram inflicted axe blow on the head of Kamla and Uda Ram cut her wrist and finger. Accused Kesra Ram and Uda Ram also inflicted axe and sword blows respectively on the person of Ramgopal. Hari Singh died on the spot and his wife became unconscious but later on, she also died. Upon hearing the cries of Gayatri Devi and Ramgopal, his brother Surendra Singh and one Balveer Singh came on the spot, who were sleeping nearby in the neighbouring field and on seeing them, all the three accused ran away. Accused Uda Ram took sword with him but he & other two accused left the sheath of sword, axe, `Angochha' (towel) and belt on the spot. Thereafter, other persons including Sher Singh and Budha Ram from the nearby `dhanis' also came on the spot. After conducting post mortem and usual investigation, all the three accused were chargesheeted u/ss.302, 307, 326, 324, 323 read with 34 IPC before the court of learned ACJM, Pokaran, who committed the case to the Sessions. After hearing the arguments on charge, the 5 learned Sessions Judge framed the charges against all the three accused u/ss.302, 307, 326 and 324 IPC, to which the accused pleaded not guilty. The prosecution examined 18 witnesses. The statements of the accused were recorded u/s.313 CrPC. They produced five witnesses in defence. After hearing the arguments, the learned trial Judge convicted the accused appellants as above. 4. While assailing the judgment of the learned trial Judge, it has been contended by Mr.P.N.Mohanani learned counsel for the appellants that firstly, there is no allegation of the prosecution against the accused appellant Asu Ram, who was having no weapon with him except `Angochha' (towel) and belt and he has not been attributed any injury on any person, except putting `Angochha' on the mouth of Gayatri Devi, which cannot be said to be sharing a common intention with other co-accused. According to him, the defence has fully established the plea of alibi of accused Asu 6 Ram, who was at Ganganagar on the date of incident. Further, the shirt Ex.P.23 is said to have been recovered from accused Asu Ram, but the blood stains on the shirt have not been detected in the FSL Report, Ex.P.40. There was no motive of the accused Asu Ram or of other accused to kill Hari Singh and his wife Kamla. The only suggestion about abducting Gayatri Devi by the accused persons has been brought on record from the mouth of investigating officer PW 17 Bagdawat Ram, who narrated it on the basis of interrogation from the accused, which is not admissible in evidence. With regard to accused Uda Ram, it is alleged that sword has been recovered from him in pursuance to the information furnished u/s.27 of the Evidence Act but in the original FIR, Ex.P.35, lodged by Sher Singh, the names of accused Uda Ram having sword in his hand or of other two accused, have not been mentioned. The second FIR Ex.P.1 lodged by Surendra Kumar, son of deceased, is improved version. Thus, the allegation against Uda Ram was omnibus 7 about cutting neck of Hari Singh, hands of Kamla and causing injuries on the person of Ramgopal. The allegation against the accused appellant Kesra Ram is about recovery of axe from the spot but there is no reliable evidence to implicate him for inflicting injuries on the person of Ramgopal. Further, according to the learned counsel, the testimony of Gayatri Devi is unreliable, as she did not receive any injury, which shows that she was not present on the spot. According to the learned counsel, in the absence of any motive or other incriminating circumstances, the act of accused cannot fall under the category of causing death, which can be termed as culpable homicide amounting to murder. In support of his contention, he has placed reliance on (i) Sohan Singh v. State of Uttaranchal reported in 2006 Cri.L.J. 316; (ii) Dharam v. State of Haryana reported in 2007 Cri.L.J. 791 and (iii) Shanta Bai v. State of Maharashtra reported in 2008 Cri.L.J.2048. 8 5. Per contra, learned Public Prosecutor has supported the judgment of the trial Court. 6. Having re-appreciated the evidence brought on record and from the post mortem reports Ex.P.17 of deceased Rai Saheb alias Hari Singh and Ex.P.18 of Smt.Kamla Devi, it appears that injuries on their examination were found to be ante mortem in nature, which were caused by sharp edged weapon and the cause of death has been opined to be haemorrhagic shock. The post mortem was conducted by Dr.Ramavatar Sharma, PW 7 on 26.4.2001. All the first three injuries on the skull and neck of deceased Hari Singh were caused by sharp weapon and they were sufficient in the ordinary course of nature to cause death. Likewise, all the nine injuries of deceased Kamla Devi on the skull i.e. on occipital and temporal region, as noted in the post mortem report Ex.P.18, were also sufficient in the ordinary course of nature to cause death. Injured Ramgopal was examined by 9 Dr.P.K.Saini, PW 6, vide Ex.P.30, who noticed six injuries on the person of Ramgopal, out of which injury No.1 was on the right parieto frontal region with 12 x 1.5cm x bone deep, which was dangerous to life, which could have been caused by sword `Article 9” and axe 'Article 2'. According to the doctor, had there been no proper treatment, injured could have died. Ofcourse, there is no injury report of Gayatri Devi on the record. 7. It is true that no motive has been attributed for killing Hari Singh and his wife Kamla Devi by the accused appellants but in every case, motive is not a relevant fact to arrive at the guilt of the accused. The motive becomes relevant, when a case is based on circumstantial evidence. The conduct of the accused and the part played by him in commission of crime is relevant. It is a settled principle of the Criminal Jurisprudence that motive alone is not a sine qua non for establishing the guilt of the accused. In the present case, the prosecution witnesses have not said anything 10 about the motive leading to murder of the two persons viz; Hari Singh and Smt.Kamla, husband and wife respectively, who were sleeping on the cot in the mid night with their daughter Gayatri and son Ramgopal but in this regard, the investigating officer Bagdawat Ram (PW 17) has stated in the last para of the examination in chief that during interrogation with the accused, it was revealed that accused appellants wanted to abduct daughter of deceased viz; Gayatri and thereby, they killed Hari Singh and his family and in the cross examination, he has denied that he found this motive at his own. 8. Upon perusal of the oral evidence brought on record, the important evidence is of Gayatri (PW 1) and injured Ramgopal (PW 3), who were sleeping on the cots nearby the deceased. Gayatri (PW 1) has stated that one person put a cloth into her mouth and when she woke up from the cot, she saw Asu Ram and rest two viz; Uda Ram and Kesra Ram attacking on her 11 father. Uda Ram with sword and Kesra Ram with axe gave blows on the neck and head respectively of deceased Hari Singh. When her mother intervened, she was fallen down by accused Asu Ram, who caught hold of her hair and Uda Ram cut both the hands of her mother and Kesra Ram inflicted injuries with axe on the head and other parts of her body. Uda Ram also inflicted 2-3 sword blows on her brother Ramgopal. She has further told that all the three accused killed her father and mother. Upon hearing her cries, Balveer Singh and Surendra Singh came and on seeing them, the accused ran away. The accused left `Angochha', belt, axe and sheath of sword. According to her, she knew all the accused previously, as they used to come towards their field for grazing cattle. Ramgopal (PW 3) has also supported the statement of Gayatri (PW 1) about putting cloth on her mouth. According to him, when he was hidden behind the wheat bags due to fear, accused Asu Ram caught hold of him and Uda Ram and Kesra Ram inflicted blows. They also killed his 12 mother and father with sword and axe. Surendra Kumar (PW 2) reached there immediately after the incident. He has also supported the prosecution version by naming all the three accused appellants including the articles, which they left on the spot. Balveer Singh (PW 9) has of course not identified the accused but he has corroborated the incident and also stated that the accused left the articles on the spot and Gayatri told him that accused Asu Ram and Uda Ram were having swords, while Kesra Ram was having axe in his hand but she did not tell him as to which accused inflicted injuries to which person. 9. The contention of the learned counsel for the appellants is that in the F.I.R. Ex.P.35, the names of accused have not been stated by Sher Singh, PW 5, who went to the Police Station, but this cannot be a ground to discard the main FIR, Ex.P.1 lodged by Surendra Kumar in the morning of 26.4.01 to SHO, Police Station Nokh, Camp Tawriwala, where the 13 incident took place. The report Ex.P.35 is the oral information given by Sher Singh to the Police Station about the incident that one person and his wife are lying on the field and lot of blood is oozing out from their bodies, therefore, action be taken. This report was lodged at 7.30 AM and thereafter the SHO left the Police Station at 8 AM and received FIR Ex.P.1 from Surendra Kumar son of deceased Hari Singh, PW 2. Merely because, there is no mention of names of assailants & deceased in the oral report made by Sher Singh, it cannot be said that the case has been concocted at a later stage. Sher Singh, PW 5 in his examination in chief has of course narrated the names but merely because of non-mentioning of names of the accused in the original oral report to the police Ex.P.35, it cannot be said to be such an omission or improvement, upon which the whole prosecution case may be thrown out. Especially in a case of direct evidence when an incident like double murder takes place in a field in the midnight and a person, who is not 14 an eye witness, goes to the police for reporting the matter, it is quite possible that either he himself may not give any name or the police may not record the names of culprits. F.I.R. is not a substantial piece of evidence in its true sense but it is the evidence of a fact of an incident, whereby the Criminal machinery is moved in motion. When the direct evidence is available, it is immaterial whether the names have been given in oral report, Ex.P.35, especially when the names of culprits are appearing in the FIR, Ex.P.1, which has been taken down by the SHO on the spot after receiving the original information of commission of crime. 10. There is other corroborative evidence connecting the accused appellants with the crime, in addition to the above direct evidence viz; recovery of weapons, clothes etc. in pursuance to the informations furnished by the accused vide Ex.P.36 to Ex.P.39. In the FSL Report, of course the nature of blood group has not 15 been given, but human blood was found on it. Non- detection of blood group in the FSL Report is relevant only when the case is based on circumstantial evidence. In a case of direct evidence, this corroborative evidence is of secondary level. 11. The decision of the Hon'ble Supreme Court in Shanta Bai's case (supra) cited by the learned counsel for appellants is of no use because the entire case was based on circumstantial evidence. In the cited case, the evidence of selective and interrogated witnesses was not held to be reliable, as other residents of the same village did not utter a word in that regard and the dead body was found in open space, which is a public road, which was not found to be sufficient to connect the accused with the commission of death of deceased. The cited case was purely based on circumstantial evidence and the Hon'ble Supreme Court disbelieved the recovery of weapons from the open place. 16 12. In Sohan Singh's case (supra), the Hon'ble Supreme Court acquitted the accused on the ground that none of the injured witnesses stated that the accused persons assaulted any of the three deceased persons. It was a case of dacoity, where possibility of dacoity by unknown persons cannot be said to be ruled out. More so, when there was no evidence that any of the accused persons assaulted the three deceased persons, especially when none of the three injured witnesses stated that the accused persons assaulted any of the three deceased persons. 13. In Dharam's case (supra), the case was rested on the exercise of right of private defence, while rejecting the plea of right of private defence and affirming the finding of the trial court as well as the High Court that the accused were the aggressors. In this case, the only single injury was on left parietal bone, which was fractured. The Hon'ble Supreme Court converted it to be a case u/s.304 Part II IPC keeping in view the 17 peculiar facts & circumstances of the case, where both the deceased and accused were in blood relations. Whereas in the present case, all the three accused, as discussed above, went in the midnight with an ulterior design probably to abduct the daughter of deceased Hari Singh viz; Gayatri, who knew them before and the manner in which they inflicted injuries on the fatal part of the bodies of deceased with sword and axe resulting into double murder, it seems that it is a fit case, where they have been rightly held guilty under Sec.302 IPC. 14. Upon evidence, as discussed above, as rightly appreciated by the trial Court, we are convinced that it was accused Uda Ram and Kesra Ram, who inflicted blows with sword and axe respectively on the persons of deceased Hari Singh and his wife Kamla, resulting in their death and also inflicted multiple injuries, which were dangerous to life, on the person of Ramgopal. 15. Coming to the act of Kesra Ram, who, according 18 to the learned counsel, was not present on the spot and if at all, his presence is established, there was no common intention, it also finds no force in view of the finding recorded by the trial Court. Firstly not receiving any injury by Gayatri, it cannot be taken that she was telling lie. Gayatri, PW 1 and Ramgopal, PW 3, who is injured, have categorically stated that accused Asu Ram put `Angochha' (towel) into the mouth of Gayatri, which alongwith belt have been recovered from the spot. Likewise, PW 3 Ramgopal, who is the injured witness, has also said that when he hid behind the wheat bags, Asu Ram caught hold of him and rest of the two viz; Uda Ram and Kesra Ram started beating. In addition to this, Surendra Kumar, PW 2 has also stated that he saw all the three persons on the spot near the cot of his father and on seeing them, they all ran away. Entering into the house at midnight with hidden motive, which according to the investigating officer seems to be abduction of daughter of deceased Hari Singh viz; Gayatri, can safely be termed as an 19 intention of all the three accused, who committed the crime of murder with a common design. 16. Common intention is a relative term and it denotes the state of mind of an accused, which can be inferred from the conduct displayed by him in the commission of crime. Though, it is difficult to collect the direct evidence of common intention but in Criminal Jurisprudence, this principle is based on the doctrine of vicarious liability, where two ingredients are essential, firstly the act should have been done by more than one person and secondly, the act of any one of them cumulatively results in the commission of crime though it is not necessary that every member of the common intention must have participated in the act. The common intention is gathered from the pre-arranged or pre-meeting of the mind, which can be established from the conduct or from incriminating circumstances. Even in furtherance of common intention if the act is committed and the accused is either spectating it or 20 standing at a distant place, is immaterial. 17. In the present case, as discussed above, all the three accused shared the common intention to kill both the deceased, else they would not have gone on the field in the midnight, where the girl was sleeping with her parents and brother and she was known to them previously as told by Gayatri, PW 1 that the accused appellants used to graze their cattle nearby their field. The above factors lead to an irresistible conclusion that the common intention of all the three accused was to kill deceased Hari Singh and his wife Kamla with sword and axe by putting `Angochha' into the mouth of Gayatri, PW 1 and inflicting injuries on the person of Ramgopal, PW 3, which were dangerous to life, for which the learned trial Judge has rightly held them guilty u/ss.302 and 307 IPC. Such acts can safely be termed as an intentional act of causing bodily injuries as the offender knows it that it will cause death, punishable under the caption “culpable homicide 21 amounting to murder”. In these circumstances, we are left with no other alternative except to confirm the finding of guilt, arrived at by the learned trial Judge. 18. Consequently, we dismiss both the appeals and confirm the judgment of the learned Sessions Judge, Jaisalmer dated 24.11.03 convicting accused appellants Uda Ram and Kesra Ram under sections 302 and 307 IPC and sentencing each of them to undergo life imprisonment along with a fine of Rs.1000/- & in default, to further undergo six months' R.I. for offence u/s.302 IPC and ten years' R.I. along with a fine of Rs.1000/- and in default, to further undergo six months' R.I. for offence u/s.307 IPC and also accused appellant Asu Ram under sections 302/34 and 307/34 IPC & sentencing him to undergo life imprisonment along with a fine of Rs.1000/- and in default, to further undergo six months' R.I. for offence u/s.302 read with section 34 IPC and ten years' R.I. along with a fine of Rs.1000/-and in default, to further undergo six months' 22 R.I. for offence u/s.307 read with section 34 IPC The accused appellants are in jail, they will serve out the remaining part of their sentences as awarded. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS