DAMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the ORDER dated November 7, 1984, passed by the Sessions Judge Balotra (Camp Barmer), by which the learned Session Judge convicted and sentenced the accused-appellant for the offences under Sections 302 and 323 I.P.C.

(2.) Accused-appellant Dama was tried under Section 302 I.P.C. by the learned Sessions Judge, Balotra, for committing the murder of one Perna Ram in the Dhani of the accused situated in village Madawa, as well as for the offences under Sections 323 and 379 I.P.C. The prosecution case, as unfolded in the FIR, which was lodged by one Hema Ramn (PW 6) at Police Station, bakhasar, on August 10, 1983 at 3.00 p.m., is that he and his brother Perna Ram were cultivating the land of Burand or the last two years. They have, also, cultivated the land on partnership basis of one Gawardan this year. Yesterday, in the evening, after taking their meals, they slept in the filed of Gawardan. Today, in the early morning, Gawardan got them up. In the meanwhile, Dama Sb Megha (the accused -appellant) came there and took Perna along with him on the pretext that he has some urgent work at his house. After about one hour, they heard the cries from the side of Damas Dhani. He and Gawardan went towards Damas Dhani and saw accused Dama. Mehra and Surta giving beatings to his brother Perna Ram. Mehra was armed with Kuihari, Dama with Dukki and Surta was armed with Hammer (Hamamdasta). On enquiry, Perna told him that Dama has inflicted injury with Dukki on his parietal region. Damas wife was inside the room, who also, informed them that Dama, Mehra and Surta were giving beatings to Perna and when she tried to intervene, her husband Dama inflicted injury with a lathi of her, also. She also, informed them that while going away, Dama took away the turban (Safa) of Perna as well as her silver ornament namely bangles and kadiyas. In the FIR, though the name of three accused were mentioned, who inflicted injuries to Perna, but the police presented the challan only against Dama - the present cused-appellant - and produced the other two accused, viz, Mehra and Surta as prosecution witnesses. Later on, an improvement was made by the prosecution that it was only the accused appellant Dama who inflicted injuries to Perna andT on receiving those injuries, Pema died. The prosecution, in support of its case, examined thirteen witnesses. PW 3 Smt. Urn a, P.WA Tagi, PM 5 Gabbardan and PW 6 Hema are the four eye witnesses of the occurrence, out of whom, PW 5 Gabbar Dan has not, supported the prosecution case. PW 7 Natha Ram is the Motbir witness to Furd Surat Haal Lash. Sita Plan Ex. P. 8 recovery of the clothes of the deceased vide Ex. P. 11 the recovery of the sample soil as well as the blood smeared soil vide Ex. P.12 and the recovery of the clothes of Smt, Umi vide Ex. P. 3 P.W. 1 Kala Ram, P.W. 10 Sawai Singh, S.I., P.W. 12 Bhanwar Singh H.C. and P.W. 13 Han Singh S.H.O., are the four police witnesses. PW 1 Kala Ram was the Constable Police, who took the sealed sample packets for FSL examination to the State Forensic Science Laboratory, Jaipur, in the sealed condition and handed them over to the Laboratory in the same condition. P.W. 12 Bhanwar Singh, Head Constable Police, was the Malkhana Incharge at Police Station, Bakhasar, with whom the articles remained in the sealed condition since the time they were deposited in the Police Station till they were sent with Kala Ram for FSL examination to the State Forensic Science Laboratory, Jaipur. P.W. 10 Sawai Singh was the Sub-Inspector, who was initially connected with the investigation. The FIR Ex. P. 7 was written in his presence. After the registration of the report, he went at the place of the occurrence, prepared furd Surat Haal Lash site inspection memo Ex. P. 8 Mazari Naksha Ex. P. 9 Panchnama Lash Ex. P. 10, made recoveries of the clothes of the deceased vide Ex. P. 11, got prepared the injury report, recovered the sliver ornaments belonging to Smt. Umi (P.W. 3) vide Ex. P. 3 record the statement Ex. P. 13 got the statements of PW 5 Gawardan recorded under Section 164 Cr. P.C. marked as Ex. P. 5 P.W. 13 Han Singh was the Station House Officer, who took the investigation from Sawai Sing, Sub- Inspector Police, and after completion of the investigation, presented the challan. He arrested the accused on May 6, 1984, vide Ex. P. 14, recovered the Dukhi - the weapon of offence from accused Dama on 9.5.1984, vide recovery memo Ex. P. 16, in the instance and on the information Ex. P. 15 supplied by the accused. P.W. 11 Mr. Prakash Kumar, Munsif and Judicial Magistrate, recorded the statement of the witness Gawardan under Section 164 Cr. P.C. P.W. 8 Mehra Ram the father of the accused has stated that Perna (deceased) had illicit relations with P.W. 3 Smt. Umi. On the date of the incident, he had gone to his field and Surta was with him. On day, the Police came there and they were informed that Perna has been murdered in the Dhani of Dama. P.W. 9 Surta has stated that he does not know anything about the murder of Perna. These two witnesses are not the witnesses of the occurrence and their evidence is of not much consequence. P.W. 2. Dr. Ram Chandra conducted the autopsy on the dead body of Perna. He, also, examined the injuries on the person of P.W. 3 Smt. Umi.

(3.) The case of the prosecution mainly rests upon the evidence of three eye witnesses, namely P.W. 3, Smt. Umi, P.W. 4 Miss Taggi and P.W. 6 Hema, which is sought to be corroborated by the recovery of the Dukki the weapon of offence as well as the statement of PW 2 Dr. Ram Chandra. P.W. 3 Smt. Umi has stated that Perna died in her Bakhal, who was murdered by her husband Dama. Her husband inflicted injury on the head Perna by a Lathi in the morning. At the time of incident, the Sun was about to rise. Perna was called in her husband Dama and the he gave a cot to him. Perna set on the cot. The accused asked her to prepare tea. After asking her to prepare tea, her husband went out of the house and returned armed with a Dukki and inflicted injury with it on the head of Perna. Perna fell down on the ground and cried. She heard the cries and came there. The accused also, inflicted injury two-three injuries on her left hand by the lathi due to which her bangles broke. He also inflicted injury by the lathi on her right leg. On hearing the cries, her daughter P.W. 4 Taggi also get-up. The accused brought her and her daughter in the Jhumpa and ran away after taking the turban of the deceased Hema and Gabbar Dan also, came there after hearing her dies and they had, also seen the accused running away. She was rescued by Hema and Gabbar Dan. Perna died at the spot. Regarding the theft of silver Kadiyas etc., she, however, admitted that the accused had not taken away these silver ornaments, which she herself got recovered vide Ex. p. 13. In the cross-examination she has admitted that in her statement before the police she had stated that her father-in-law Mehra, Surta and accused appellant Dama were the persons who inflicted injuries to Perna, but this was stated on account of the fear of the police and actually Mehra Surta were not involved in the crime. She has, also, admitted in the cross-examination that it was she who went to Chhama s Dhani and asked him to go to the village and inform the villagers that her husband has killed Perna. Chhama, thereafter, went to the village and informed all the villagers. From the close reading of the statement of this witness, it cannot be said that it was the accused, who inflicted injuries to the deceased Perna. This witness has tried to falsely implicate two innocent persons, namely Mehra and Surta in such a heinous crime. She has admitted that she gave this statement to the police involving Mehra and Surta on the asking of the police, wheres actually they were not involved in the crime. She has, also, at the initial stage, came with the story that the accused took away her silver ornaments, which were not actually taken away by the accused. This witness has stated that she was put in the Jhumpa and the doors were closed from outside by the accused, while in the cross-examination she stated that she went to the Dhani of Chhama and informed him that her husband has killed Perna and asked him to inform this fact to the villagers whereupon Chhama went to the village and informed the villagers, while later on she came with the story that she was locked in the Jhumpa by the accused and was rescued by PW 5 Gabbar Dan and PW 5 Hema. These contradictions in the statements of the witnesses and the improvement made by her, coupled with the circumstances of the case, suggest that she is not a lady of sound character and had illicit relations with the deceased, who has been allegedly killer by her husband. The evidence of this witness, in these circumstances, does not inspire confidence and cannot be made a ground for convicting the accused-appellant for such a heinous crime.