DHAN RAJ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been filed by the accused appellant against the judgment and order dated 28-8-1999 passed by the learned Addl. Sessions Judge No. 1. Hanumangarh in Sessions Case No. 15/1999 (26/98} by which he convicted the accused appellant for the offence under Sections 302 and 341 IPC and sentenced him in the following manner : Name of appellant convicted u/S. sentence awarded Dhan Raj 302, IPC 341. IPC Imprisonment for life & to pay a fine of Rs. 1000 in default of payment of fine, to further undergo six months RI. One month SI. Both the substantive sentences were ordered to run concurrently.

(2.) It may be stated here that by the same judgment and order, the learned trialJudge has acquitted three accused, namely, Rajkumar, Kalawati and Sarika of all the charges framed against them i.e. for the offence under Sections 34.1, 302 .alternatively 302/34 IPC. However, the State has not filed any appeal against their acquittal.

(3.) The facts giving rise to this appeal, in short, are as follows : On 9-4-1997 at about 6.15 PM, one Brijlal (since he died during the pendency of the trial, therefore, he was not produced by the prosecution) lodged a written report . Ex. P/19 before the police Station Goluwala District Hanumangarh stating inter-alia that at about 5 or 5 P.M. when he was in his house.he heard cries that near the house of Jugal, fight had taken place with Om Vishnu (hereinafter referred to as "the deceased") son of Brijlal and upon this, he rushed towards the house of Jugal and found that the deceased was lying near the gate of the house of the accused appellant and blood was coming out from his head and at that time, he also found that PW 11 Naraini Devi , wife of Jugal, PW12 Asha, daughter of Jugal and PW 10 Richhpal were also standing there. It was further stated in the report Ex. P/19 by Brijlal that PW 11 Naraini Devi had put the cloth on the head of the deceased and at that time, deceased was unconscious and he enquired from PW 10 Richhpal as to who had caused injuries to his son deceased and upon this, PW10 Richhpal told him that deceased and he (PW10 Richhpal) came by road and he (PW10 Richhpal) was going towards his dhani and deceased was going towards his house and as soon as deceased reached near the lane in front of the house of the accused appellant, the accused appellant along with other three accused, namely, Rajkumar, son of accused appellant, Sarika daughter of accused appellant and Kalawati wife of accused appellant (who have been acquitted by the learned trial Judge) appeared on the scene and they stopped the deceased and at that time, the accused appellant was armed with Gandasi and he gave Gandasi blow on the head of the deceased, as a result of which, deceased fell down on the ground and became unconscious and further, the accused Rajkumar (who has been acquitted by the learned trial Judge) was armed with lathi and he gave lathi blow to the deceased and other two accused, namely, Sarika and Kalawati (who have been acquitted by the learned trial Judge) also beat deceased and thereafter, they had run away from the scene treating the deceased as dead. It was further stated in the report Ex. P/19 by Brijlal that thereafter, he, PW 10 Richhpal and PW1 Richhpal son of Laluram took the deceased to the Government Hospital, Goluwala In a Jeep where the doctor told that deceased had died. It was further stated in the report Ex. P/19 by Brijlal that the accused appellant was having dispute over some land and cases were pending in the Court, therefore, be-cause of that enmity, deceased was mur dered by the accused appellant and his family members. On this report Ex. P/19, police registered the case and chalked out regular FIR Ex. P/20 and started investigation. During investigation, post mortem of the dead body of the deceased was got conducted by PW3 Dr. S. P. Singh and the post mortem report is Ex. P/2 where it was opined that the deceased died due to head injuries, haemorrhage and shock leading to cardio respirators arrest. The accused appellant was got arrested by PW15 Mahesh Gopal on 9-7-1997 through arrest memo Ex. P/24 and he gave information Ex. P/26 that he could get recovered a gandasi and in pursuance of that information, a gandasi stained with blood was got recovered and seized through fard Ex. P/11 in presence of PW7 Babulal and Jagdev Singh. The site plan Ex. P/15 and site description memo Ex. P/15A were also got prepared by PW13 Tara Chand and through fard Ex. P/18 one blood stained chaddar, by which the head of the deceased was tied, was also seized by PW13 Tara Chand and all the seized articles were sent to FSL and the FSL report is Ex. P/28. After usual investigation, police submitted challan against the accused appellant and three other accused, namely, Rajkumar, Kalawati and Sarika (who have been acquitted by the learned trial Judge) in the Court of Magistrate and from where the case was committed to the Court of Session. On 16-4-1998, the learned Sessions Judge Hanumangarh framed charges for the offence under Sections 341, 302 or alternatively 302/34 IPC against the accused appellant and other three accused Rajkumar, Kalawati and Sarika (who were acquitted by the learned trial Judge). The charges were read over and explained to the accused persons. They denied the charges and claimed trial. During the course of trial, the prosecution got examined as many as 15 witnesses and exhibited several documents. Thereafter, statements of the accused persons under Section 313 Cr. P. C. were recovered. No evidence was led in defence by the accused persons. After conclusion of trial, the learned Addl. Sessions Judge No.l, Hanumangarh through impugned judgment and order dated 28-8-1999 while acquitting three accused Rajkumar, Kalawati and Sarika, convicted the present accused appellant for the offence under Sections 302 and 341 IPC and sentenced him in the manner as indicated above holding inter alia: (i) That deceased died because of two sharp edged injuries, which he received on his head. (ii) That author of the report Ex. P/19, namely, BriJIal was not produced because he had died, but from the statement of PW13 Tarachand, who was at that time SHO, Police Station Goluwala, the fact that Brijlal submitted the report Ex. P/19 in the Police Station Goluwala before PW 13 Tarachand, is established. (iii) That there were three eye witnesses of the alleged incident, namely, PW 10 Richhpal, PW 11 Naraini Devi and PW 12 Asha. (iv) That the principle "Falsus in uno Falsus in Omnibus" is not applicable in India and therefore, the statements of the aforesaid three eyewitnesses, namely, PW10 Richhpal, PW 11 Naraini Devi and PW 12 Asha were not accepted by the learned trial Judge so far as the other three accused Rajkumar, Kalawati and Sarika were concerned, but their statements were accepted so far as the present accused appellant was concerned. (v) That he believed the statements of the aforesaid three eye witnesses PW 10 Richhpal, PW 11 Naraini Devi and PW12 Asha on the point that a gandasi blow was given by the accused appellant on the head of the deceased. (vi) That no doubt PW 3 Dr. S. P. Singh has observed that the injuries No.l and 2 mentioned in the post mortem report Ex. P/ 2 of deceased were sufficient in the ordinary course of nature to cause death and no doubt, in his cross-examination, he had admitted that there two injuries on the head of the deceased should have been caused by different weapons, but the fact that these two injuries could have been caused by Gandasi could not be ruled out. (vii) That the fact that there was enmity between the complainant party and the accused party is well established and thus, there was motive on the part of the accused appellant to cause murder of the deceased. (viii) That he sought corroboration from the so called recovery of Gandasi at the Instance of accused appellant, as human blood was found on it, which is evident from the FSL report Ex. P/28. (ix) That so far as the case of the prosecution as is evident in the statements of PW 10 Richhpal, PW 11 Naraini Devi and PW12 Asha that another accused Rajkumar also gave a kasia blow on the head of the deceased was not found proved by the learned trial Judge as in the report Ex. P/19, it was categorically mentioned that the accused Rajkumar was having lathi in his hand and even in the police statements, the aforesaid three eye witnesses have stated that the accused Rajkumar was having lathi in his hand, but in Court statements, the learned trial Judge found that these three eye witnesses had improved their statements by stating that the accused Rajkumar was having kasia and therefore, in view of these contradictions, the learned trial Judge came to the conclusion that the prosecution has failed to prove beyond reasonable doubt that another sharp edged injury on the head of the deceased was caused by accused Rajkumar as on the head of the deceased there was no injury of lathi. (x) That so far as three eye witnesses PW 10 Richhpal, PW 11 Naraini Devi and PW 12 Asha are concerned, they are not witnesses of sterling worth in relation to accused Rajkumar. (xi) That similarly, the case of the prosecution in respect of accused Sarika and Kalawati was not found proved by the learned trial Judge. Aggrieved from the said judgment and order dated 28-8-1999 passed by the learned Addl. Sessions Judge No. I, Hanumangarh, the accused appellant has preferred this appeal.