RAJA RAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal arises out of the following facts : On 20th May, 1992, Hanuman (the first informant) and Ram Niwas (since deceased), started from Railway Station Hisar at 7 p.m. after loading coal in a truck belonging to Ram Niwas for carrying it to Dabwali, Uggar Sain P.W. 7 was the truck driver. They reached near petrol pump of village Panjuana on the national highway between Sirsa and Dabwali at about 11 p.m. and after parking the truck on the road side had their dinner at the local restaurant. Hanuman thereafter went to sleep in the truck whereas Ram Niwas and Uggar Sain P.W. 7 lay down to sleep on a cot lying near the truck. On hearing the sound of a shot having been fired, Hanuman and Uggar Sain woke up and found the two accused (Subhash armed with a double barrel 12 bore gun and Raja Ram unarmed, both sons of Kheru Ram Bishnoi) standing there. Thereupon Subhash fired one shot at Ram Niwas from a close range. Uggar Sain fled from the spot and hid in the restaurant, while the two accused carrying their gun got in their jeep bearing No. HR 20 537 (later on corrected as HR 20 0547) which was parked close by and drove off toward Sirsa. Hanuman then got down from the truck and saw that Ram Niwas had received injuries on the left side of the forehead and the chest and that he had died meanwhile. Hanuman then made his way to the Police Station Baragudha and made a report to Sub Inspector Het Ram, P.W. 10 who recorded the same at 2.15 a.m. on 21st May, 1992; the special report being delivered at Sirsa at 9.15 a.m. Sub Inspector Het Ram accompanied by other policemen then went to the place of the incident and prepared the inquest proceedings and also recorded the statement Exhibit PL of Uggar Sain. The two pellets found on the cot near the dead body as also a blood stained Gadda, strings and a blanket were taken into possession. The accused were arrested on 28th May, 1992, by Sub Inspector Raghbir Singh P.W. 8 and the Jeep in which they had absconded, the gun and two live cartridges were also taken into possession. Raja Ram accused also produced Exhibit P1, the gun licence, whereas Kheru Ram son of Subhash, produced the registration certificate, Exhibit P2, pertaining to the Jeep showing that it had been transferred to Subhash accused on 9.10.1991. On the completion of the investigation, the accused were duly arraigned and, whereas Subhash accused was charged substantively for the offence punishable under Section 302 of the Indian Penal Code. Raja Ram accused was sought to be roped in with the aid of section 34 thereof. Subhash accused was also challaned for an offence punishable under section 27 of the Arms Act. As the accused pleaded not guilty to the charge, they were brought to trial.

(2.) IN order to prove its case, the prosecution examined, inter alia, Sewa Ram P.W. 1 who proved the licence Exhibit P1 pertaining to the D.B.B.L. gun allegedly used in the attack; Surinder Kumar P.W. 2 a clerk from the S.D.M. Office, Hisar, who proved the registration certificate of the Jeep in question and deposed that on the day of the murder it stood in the name of Subhash accused; Sant Lal, Ahlmad, P.W.3 who proved the file pertaining to the divorce that had been granted to Ram Niwas against his wife Dholi, a cousin of the accused and the alleged motive for the murder; Head Constable Bhagwan Dass P.W. 4 who stated that he had been posted at the Truck Union Barrier at the Dabwali Road, Sirsa, on 20th May, 1992, when a Jeep bearing registration No. HR 20 0547 had passed by at 11.50 p.m. and the two accused were in the Jeep at that time; P.W. 7 Uggar Sain who made a complete volte face with respect to the prosecution case and was declared hostile as he deposed that the murder had been committed by five Sikh boys and that Hanuman had not even been present at the spot; Sub Inspector Raghbir Singh P.W. 8 who had arrested the accused, taken the gun, the two live cartridges and the jeep into possession and had also seized the documents pertaining to these two items on the next day; Dr. Narinder Chaudhary P.W. 9 who had conducted the post mortem examination on the dead body and had noticed three gun shot injuries - two of entry and one of exit; Sub Inspector Het Ram P.W. 10 the investigating officer and Rameshwar Dass P.W. 11 who was witness of the arrest and the recovery of the jeep and the cartridges on 28th May, 1992.

(3.) THE trial Court noted that Hanuman, the first informant, had died before he could be examined as a prosecution witness and therefore the matter would have to be examined in that background. The Court accordingly noted that the FIR had been recorded at the instance of Hanuman and the defence had not even suggested that he had not signed the same. The court ruled that the FIR recorded by Hanuman could not be held to be a dying declaration as per the provisions of Section 32(1) of the Indian Evidence Act (hereinafter referred to as the 'Act') as it did not relate to the cause of his own death but the contents of the FIR were admissible under Section 6 read with illustration (a) thereof, as it was a relevant fact in terms of that section. In coming to this conclusion, the Court relied upon a Division Bench judgment of Andhra Pradesh High Court reported in Bandela Nagaraju and others v. State of Andhra Pradesh, 1984(2) Recent Criminal Reports 114. The Judgment cited by the defence counsel that the FIR was not a substantive piece of evidence and could be used only to corroborate or to contradict the maker were distinguished by stating that the maker of the FIR in that case was not dead. The Court accordingly came to the conclusion that as the FIR was admissible in evidence, the contents could, therefore, be proved and the fact that Uggar Sain, the other eye-witness, did not support the prosecution case was of little consequence. The Court also found that the motive stood proved and the fact that Head Constable Bhagwan Dass P.W. 4 had noticed the Jeep passing by the check post at 11.50 p.m. on the fateful night i.e. shortly after the incident, was a clinching circumstance against the accused. The defence version which had been projected by the witnesses was rejected as being un-worthy of credence. The Court accordingly convicted and sentenced the two accused as under : Raja Ram to undergo life imprisonment and to the payment of fine of Rs. 500/- and in default of payment thereof, to further undergo R.I. for three months for offences under Section 302 read with section 34 of the Indian Penal Code; Subhash to undergo life imprisonment and to the payment of fine of Rs. 1,000/- and in default of payment thereof, to further undergo RI for six months for offences under Section 302 IPC and to also undergo imprisonment for two years under Section 27 of the Arms Act. Both the substantive sentences to run concurrently. Hence this appeal at the instance of the accused.