OM PRAKASH DHANAK Vs. STATE

JUDGEMENT

(1.) D .P. Criminal Appeal No.390/75 filed by Om Prakash Dhanak and D.B Criminal Jail Appeal No.*779 of 1975 filed by this very appellant arise out of one and the same judgment of the Additional Sessions Judge, Shri Ganganagar, dated 8th April, 1975 by which the appellant was convicted under Section 302 IPC and sentenced to undergo imprisonment for life and Liluram co -accused was acquitted of the offence of murder.

(2.) THE prosecution case against Om Prakash appellant was as follows: -At about 7 30 P.M. on 28th March, 1973 Hansraj deceased was sitting inside his house situated in ward No.*15 of the city of Shri Ganganagar. His father Kaluram and his brother -in -law the gainer Shri Managalchand also were present inside the house at that time. The appellant visited the house of the deceased and called him to come out Hansraj accordingly came out of his house and went away along with the appellant After half an hour or so Kaluram' father of the deceased, heard noise of a quarrel that ensued between the appellant and the deceased. On hearing the noise Kaluram and Mangalchand went out of the house and reached infront of the house of Mohanlal which was situated at a distance of about 150 paundas from the house of the deceased. Both of them saw the appellant standing there having a naked sword in his hand and the deceased also was seen standing there by the side of the appellant. The appellant was asking Hansraj to beat him, but Hansraj was telling why he should beat the appellant Kaluram and Mangalchand inter vened and brought Hansraj from there along with them, Om Prakash followed the deceased having a naked sword in his hand. In the way when Kaluram, Mangalchand and the deceased were passing by the side of the house of Liluram co -accused, they saw Liluram standing outside his house At their sight, Liluram abused and cried 'Bhenchodo ko mardo katal kar do'. Thereupon at his instigation Om Prakash appellant thrusted his naked sword into the left side of the chest of Hansraj as a result of which the latter fell down and lost his senses. The wound on the chest of Hansraj began to bleed profusely with the result that the clothes worn by im were wet with blood The appellant after striking the fatal below disappeared from there. The occurrence was eyewitnessed by Sesaram P.W.3 also who had come out of his house on hearing the noise. Kaluram, Mongal Chand, Sesaram and some other persons made Hansraj to lie on a cot and took him to the police station where Kaluram father of Hansraj made a verbal report of the incident to the police the very day at 8.30 P.M. The police registered a criminal case under Section 307 and 449 IPC on the basis of the verbal report and took up the usual investigation into the matter. Hansraj died at about 9 15 P.M on 28th March, 1973 and so the case was altered from under Section 307 IPC to one under Section 302/34 IPC Shri S.L. Surolia Dy. S.P., Ganganagar ruahed to the spot and deputed a Head Constable to guard the place of occurrence. Then he arrested the appellant the very day at about 11.15 P.M. After his arrest Om Prakash gave the Dy.S.P. an information whele in the police custody that he had concealed one sword having a black -sheath and a wooden 'moot' inside the beddings of one Prahlad Dhanak which were lying in his Kotari. He further informed the Dy.S.P. that he had concealed his pentaloon of blue colour and his bush shirt in an iron box lying in the Kota of his residential house and that he was prepared to get the sword and his clothes recovered at his instance. The Dy.S.P. got the above information recorded in a memo Ex. P.7 by Shri Bhanwarsingh A.S.I. at his dictation and recovered the sword and the clothes from the place mentioned by the appellant in his information. The sword and the clothes were suspected to have stains of blood on them and so they were seized and sealed immediately after their recovery. Later on the sword and the clothes of the appellant were sent to Assistant Director Biology Police forensic Science Laboratory Jaipur for analysis who detected blood on the sword and the clothes. The sword and the clothes were forwarded to the Serologist for further analysis but it appears that the report of the Serologist was not produced by the prosecution for reasons best known to it. The Dy.S -P. sent the dead body of Hansraj to the General Hospital Sri Ganganagar for post mortem examination. Dr M.P. Agarwal Medical Jurist conducted an autopsy over the dead body on the next day of the occurrence i.e. on 29th March, 19 79 and found the following injuries: Incised wound 1 -1/8' x 3/8''x chest cavity deep 3 1/2' below and medial to the left nipple (obliquely verticle) 1' lateral to the mid line. The shirt which the deceased was wearing on his body was found vertically cut over the region of the injury on front of left side near buttons; the size of cut was 1 3/8' in length. The doctor further detected that the left fourth rib was cut completely under the external injury. There was an obliquely vertical wound involving this rib. Size of the wound was 1 1/2' x 1/2' x chest cavity deep. Left pluera was cut under the wound. Thorasic cavity was full of dark fluid and clotted blood. Left lung covering the heart on anterior aspect was cut under the injury. Pericardium was cut over the left atrioventricular junction. Paricardial cavity was full of blood Left strium was punctured near its junction to the right strium. Larynx and trachea and both the lungs were congested. In his opinion the cause of death of the deceased was injury to chest causing puncture of left lung and puncture of heart with intrathorasic haemorrhage and shock. The external injury in the opinion of the doctor was ante mortem in nature and was sufficient in the ordinary course of nature to cause death. It could be caused by sharp end of sword having a blade of the breadth of not more than one and a half inch within four inches of its end. The Dy. S.P. collected ether evidence in the case and eventually filed a charge sheet against Om Prakash & Liluram co -accused under Section 302/34 IPC in the court of Munsif Magistrate Sri Ganganagar. The learned Munsif Magistrate held an inquiry preparatory to committment and upon finding a prima facie case exclusively triable by the court of Sessions committed the appellant and Liluram co -accused to the court of Sessions Judge, Sri Ganganagar for trial under Sections 302 and 302 read with Section 114 IPC respectively. The learned Additional Sessions Judge, Sri Ganganagar tried the appellant and the co -accused for the aforasaid offences and convicted and sentenced the appellant alone under Section 302 IPC as stated earlier. Liluram co -accused was acquitted of the charge framed against him. Aggrieved by his conviction and sentence the appellant has preferred these appeals to this Court,

(3.) FIRSTLY it has been contended on behalf of the appellant that the oral testimonies of she so called eye -witnesses, namely, Kaluram PW 1, Mangalchand PW 2 and Sesaram PW 3 are not free from infirmities and it is highly doubtful whether these persons were present at the time when assault was made on the deceased. It was fu;ther averred that the eye witnesses were not independent witnesses as Kaluram PW 1 and Mangalchand PW 2 were closely related to the deceased while the name of Sesaram PW 3 did not find mention in the first information report made by Kaulram father of the deceased soon after the occurrence. According to the submission of the learned Counsel for the appellant, the trial Judge committed an error in placing reliance on the testimony of the witnesses in the absence of any corroboration from some independent source. The learned Public Prosecutor on the other hand urged that the evidence of the eye witnesses clearly established the guilt of the appellant beyond reasonable doubt and the trial Judge was justified in basing conviction of the appellant on it.