POOSA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) S. B. Criminal Appeal No. 698 of 1975, filed by Poosa Ram and S. B. Criminal Appeal No. 749 of 1975, filed by Amia alias Amrit Lal arise out of one and the same judgment of the Additional Sessions Judge, Jodhpur, dated 25th October, 1975, by which Poosa Ram was convicted under section 307, I. P. C. and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1000/-, in default of payment of fine to further suffer eight months rigorous imprisonment and Amia appellant was convicted under S. 326/34, I. P. C. and was awarded sentence of two years' rigorous imprisonment and a fine of Rs. 400/-, and in default of payment of fine rigorous imprisonment for four months. By this very judgment another co-accused Ghanshyam was convicted under S. 32/34, I. P. C. and was released after admonition under S. 3 of the Probation of Offenders Act. Ghanshyam, however, did not file an appeal against his conviction and sentence.

(2.) THE prosecution case against both the appellants may be stated, in brief, as follows: - On the intervening night of 11th and 12th June, 1973, Laxmi Narayan son of Motilal Ghanchi was sleeping inside his house at about 11. 30 p. m. His brother Madan Lal also was sleeping in the house. At that time somebody called for Madan Lal from outside. On hearing the call,, Laxmi Narayan got up from his bed and saw one tempo-rickshaw standing outside his house. He saw one Gal Madan Lal did not come out of the house.

(3.) IN his examination in chief, Laxmi Narayan claimed to be an eye-witness to the actual assault made upon his brother by Poosa Ram with a knife but in his cross-examination he changed his version and admitted that when he reached near Balaji-ka-temple, on hearing voice, he saw his brother Madan Lal lying on the ground and the two appellants being carried away by the police. He was confronted with and contradicted by his first information report Ex. P. 1 and his subsequent statement before the Police Ex. D. 3, wherein he did not state that he had seen Poosa Ram causing a blow to the person of his brother with a knife. When confronted with his previous report and. his statement, he merely deposed that being in a perturbed and terrified state of mind he could not state before the police that he had seen Poosa Ram giving a knife-blow to Madan Lal. Again, he further stands discredited on a material point. IN his deposition at the trial Laxmi Narayan stated that first Ghanshyam had come to his house to call for Madan and thereafter a gap of half an hour the two appellants visited his house in a tempo rickshaw and Poosa Ram called Madan by his name and on hearing the call he (Laxmi Narayan) got up and looked at them from his balcony. Thereupon, both the appellants asked Laxmi Narayan where his brother Madan was. Laxmi Narayan gave them a reply that Madan Lal was lying asleep and then according to him the appellants knocked at the door of his house and went away from there. Curiously enough, Laxmi Narayan omitted to state in his report or subsequent statement that Poosa Ram had called his brother and that some talks took place between him and appellants about Madan Lal. Laxmi Narayan's evidence, therefore, does not inspire confidence. His version that Ghanshyam asked Madan Lal, when the latter came out of his house at the former's call to accompany him to the market for chewing betel leaves appears market to be wholly unreliable. The reason is that at first he claimed to have seen the two talking to each other outside his house, but in the next breath he repudiated his above version and stated that when the talks were going on between Ghanshyam and Madan Lal outside his house, he was lying throughout on his bed. No reliance can be placed on the testimoney of such a witness who has no respect for truth. It was highly probable that Laxmi Narayan did not hear the talks that took place between his brother and Ghanshyam outside his house, because, if he had heard the talks, he would have asked his younger brother not to go to the market in the odd hours of night for the purpose of chewing betel leaves alongwith a person with whom their relations were strained. Consequently, I have no hesitation in believing the statement of Madanlal injured that he was called out and taken by Ghanshyam to the place of occurrence on the pretext that his brother Bhanwar Lal had met an accident. The learned counsel appearing for Poosa Ram vehemently contended before me that the earliest version given out by Laxmi Narayan in the first information report and in his subsequent state ments relating to the pretext on which Madanlal was taken away by Ghanshyam from his house should be given due weight. According to him, Madan Lal was examined after 24 days by the police and had ample time to tell a different tale about the pretext on which he was taken by Ghanshyam to the place of occurrence. The learned counsel argued that Madan Lal did not adhere to the version given out by his brother Laxmi Narayan because he knew it well that no prudent man would believe that he had accompanied his enemy Ghanshyam to the market for chewing betel leaves at odd hours in the night without wearing shoes and full clothes on his person. The above contention has no force, because Madan Lal could not be examined by the police earlier than 6th June, 1973, as Madan Lal's physical condition was serious and he was not in a position to give out any statement before the police. There is no material on the record to suggest or show that he concocted a different story relating to the pretext on which he was taken away by Ghanshyam to the place of occurrence from his house merely because the version given out by his brother Madan Lal on this point was unconvincing.