Bhoja Ram and Another vs State of Rajasthan

Sunil Kumar Garg, J.—This appeal has been preferred by the accused appellants against the judgment and order dated 13.1.1987 passed by learned Sessions Judge, Churu in Sessions Case No. 37/85 whereby the learned Sessions Judge, Churu while acquitting accused Bajrang Lai for offence u/s 302 read with Section 114 I.P.C. convicted accused appellants for offence u/s 304(II) read with Section 34 I.P.C. in place of Section 302 I.P.C. read with Section 34 I.P.C. and sentenced them as under:

Name of Offence Sentenced accused u/s awarded Bhoja Ram 304 (II) read with 5 years'' R.I. and a fine of Rs. Sarvan Ram Section 34 I.P.C. 3000/- in default to further undergo 1 year''s R.I.

It is stated here that accused appellant No. 2 Sarvan Ram has died, therefore, his appeal has been dismissed as abated by this Court vide order dated 30.8.2001. Hence, present appeal pertains to appellant No. 1 Bhoja Ram only.

This appeal arises in the following circumstances:

i) On 9.6.1985, at about 1 a.m., P.W.5 Bega Ram lodged an oral report Ex.P/3 with the Police Station Sardar Shahar, Churu before P.W.10 Jogendra Singh stating that in the night on 8.6.1985 at about 9-9.30 p.m. P.W. 5 Bega Ram along with P.W. 9 Bhera Ram were going towards the house of Soni for the purpose of satisfying natural call and as soon as they reached near the bus-stnad, near the house of P.W.4 Raju Ram, they heard cries and after hearing cries, P.W.5 Bega Ram and P.W.9 Bhera Ram rushed towards that place from where cries were coming and after reaching there they saw that the accused appellants were beating Amra Ram (hereinafter referred to as the deceased) and brother of P.W.5 and at that time, the accused appellant Bhoja Ram was armed with Gandasi and that of Sharwan was armed with Lathi arid both beat the deceased severely. The deceased tried to run away, but he fell down in the premises belonging to P.W. 4 Raju Ram and thereafter Raja Ram P.W.4 also came and when they made hue and cry, the accused appellants ran away, but they were saying that they had taken revenge. It was further stated in the report that the condition of the deceased was serious one as huge blood came out" from his body and P.W. 2 Kistara Ram and P.W. 3 Bhajna Ram were also called. It was further stated in the report that since two days earlier to this incident, the deceased entered the house of accused appellants and for that entry, this incident took place and accused appellants made murderous attack on the deceased.

On this report, P.W. 10 Jogendra Singh chalked out regular F.I.R. Ex. P/3 and registered a case for offence Under Sections 307 and 326/34 I.P.C. and since in the morning of 9.6.1985, at about 4.10 a.m. the deceased died, therefore, the case was converted u/s 302 I.P.C.

At about 3.45 a.m. on 9.6.1985 injuries of deceased were examined by P.W. 1 Dr. Sri Krishna Kaushik who gave his injury report Ex.P/1 which shows that the deceased received as many as 19 injuries both by blunt and sharp edged weapon. Since the deceased died on the very night, the post mortem of the body of the deceased was got conducted by P.W. 1 Sri krishna Kaushik and post mortem report is Ex. P/2 where the cause of death has been opined as profuse bleeding leading to shock. In the postmortem report Ex.P/2, four fractures have also been shown apart from the injuries mentioned in injury report Ex.P/1.

After usual investigation the police submitted challan against the three accused persons in the Court of Magistrate for offence u/s 304 I.P.C. from where it was committed to the Court of Sessions Judge, Churu.

That on 21.9.1995, the learned Sessions Judge framed charges for offence Under Sections 302, 302/34 and 302/114 I.P.C. against the accused appellants and one Banrang Lal the who pleaded not guilty and claimed trial.

During trial, 10 witnesses were produced by the prosecution and thereafter statements of accused u/s 313 Cr.P.C. were recorded and one witness was examined in defence.

After conclusion of the trial, the learned Sessions Judge vide his judgment and order dated 13.1.1987 convicted the accused appellants for offences Under Sections 304(II) read with Section 34 I.P.C. in place of Section 302 read with Section 34 I.P.C. and sentenced them as stated above inter alia holding that:

i) The prosecution has proved its case beyond reasonable doubt for offence u/s 304(II) read with Section 34 I.P.C.

ii) The learned Sessions Judge placed reliance on the statements of P.W.4 Raju Ram, P.W.5 Bega Ram and P.W. 9 Bhera Ram and treated them as eye witnesses.

iii) The fact that In the report Ex.P/3 it was stated that the accused appellant Bhoja Ram was armed with Lathi and Sarwan Ram was armed with Gandasi is correct one. Thus, he convicted and sentenced the accused appellants as stated above.

Aggrieved from the said judgment, this appeal has been filed by the accused appellants.

In this appeal, following submissions have been made on behalf of the accused appellants:

i) Since so called eye witnesses P.W.5 Bega Ram and P.W.9 Bhera Ram are interested witnesses and close relatives of the deceased, therefore, their evidence should not have been relied upon by the learned trial Judge and further more they are not the eye witnesses and had they been eye witnesses, they would not have asked from the deceased as to how he was beaten.

ii)Since the deceased was of bad character and therefore, he might have been murdered by some other persons and not by the accused appellants and the findings of conviction recorded against the accused appellants be set aside and they be acquitted.

iii)The accused appellant Bhoja Ram cannot be convicted with the aid of Section 34 I.P.C.

iv)If Court comes to the conclusion that accused appellant Bhoja Ram has committed the offence, he may be released on undergone.

NOTE: During the pendency of this appeal, accused appellant Sarwan Ram had died and, therefore, vide order dated 30.8.2001, it was ordered that appeal of accused Sarwan Ram is dismissed as abated. Now the appeal of accused appellant No. 1 Bhoja Ram is being decided.

On the contrary, the learned P.P. has opposed the submission made by the learned Counsel for the appellants and submits that the judgment and order passed by the learned trial Judge are based on proper appreciation of evidence and do not call for interference. Hence the appeal be dismissed.

I have heard both.

In this case, the incident took place on 8.6.1985 at about 9 p.m. and report Ex.P/3 was lodged by P.W.5 Bega Ram on the same night at about 1 a.m. meaning thereby just after few hours of the occurrence.

To appreciate the above contention raised by the learned Counsel for the appellant, first medical evidence in the present case has to be seen.

From the statement of P.W. 1 Dr. Shri Krishna Kaushik injury report Ex.P/1 stands proved which shows that the deceased received following injuries on his body:

i)incised wound-2"x3"x1" on left scapular region.

ii)Contusion red in colour-8"x 1" on right side back Vertically placed.

iii)Contusion red in colour - 6"x6" on left side back scapular region,

iv)Abrasion 2"x2" Rt. side back in region of 10th rib.

v)Incised wound 1"x2"x1" Rt. side back just above iliac clotted blood present.

vi)Incised wound-3"X4"x1" over scalp in midline clotted blood present.

vii)Incised wound -2"X5"x2" on occipital region Rt. side near midline clotted blood present (bone intact on palpation).

viii)Lacerated wound with contusion 20cmX8cm., lac, wound 2"x1"x1"Rt. leg lower 1/3rd.

ix)Incised wound 1"x2"x1"on middle of Rt. leg out aspect.

x)Incised wound - 1 "x3"x2" on Rt.leg medial side lower 1 /3rd clotted blood present.

xi)Incised wound -3"x6"x1" out aspect left knee clotted blood present.

xii)Two incised wound- 1"x2"x" and 1"x3"x1" on anteriorly middle of left leg.

xiii)Incised wound- 3"x2.5"x1" on anterior aspect left leg just above ankle.

Tibia and Fibula also cut along with tenderness and main vessels cut.

xiv)Incised wound 1.1"x2"x2" dorsum of left foot lower side clotted blood present.

xv)Left 5th toe completely cut of the metacarsopholaycal joint only attached with a portion of skin.

xvi)Lacerated wound 2"x3"x1" on dorsum of Rt. Hand.

xvii)Incised wound 1"x1"x1" 1st wetspace Rt. Hand

xvlii)Incised wound 1.2"x1"x1" 1st wetspace left hand.

xix)Nails of 2nd, 3rd, 4th finger of right hand cut and clotted blood present.

Since the deceased dies on the very night, post mortem of the body of the deceased was conducted by P.W. 1 Dr. Sri Krishna Kaushik and in the post mortem report, apart from the injuries mentioned in Ex.P/1 P.W. 1 Dr. Sri Krishna Kaushik also found four fractures on the body of the deceased and cause of death has been opined as profuse external bleeding leading to shock, coma and death.

Thus, from the statement of P.W. 1 Dr. Sri Krishna Kaushik the death of the deceased was homicidal one.

It may further be submitted that both the post mortem report Ex. P/2 and the injury report Ex. P/1 have been admitted by the learned Counsel appearing for the accused appellant in the trial Court.

In the cross-examination, P.W. 1 Dr. Sri Krishna Kaushik has admitted that the head injury was caused by sharp edged weapon and none of the injuries individually were sufficient in the ordinary course of nature to cause death and that is why the learned Sessions Judge has treated this case to be fallen u/s 304(II) I.P.C. and not u/s 302 I.P.C.

The next question is whether P.W. 5 Bega Ram can be regarded as eye witness or not.

In assessing the value of the evidence of the eye witnesses, two principal considerations are whether in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable, or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbablise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence.

There is no rule of law that evidence of partisan witnesses or interested witnesses cannot be accepted in absence of independent corroboration in material particulars. The only thing is that the Court should be careful and conscious in accepting that evidence and if after scrutiny, it is found that their evidence does not suffer from any infirmity, their evidence should be accepted.

F.I.R. Ex. P/3 was lodged by P.W. 5 Bega Ram, as stated above just after few hours after the alleged incident. In that F.I.R. Ex. P/3, P.W. 5 Bega Ram has clearly stated that P.W.9 Bhera Ram was also with him and they both saw the accused appellants beating the deceased and not only this, it was also written in the F.I.R. Ex. P/3 that they had taken revenge and it is also written in the F.I.R. Ex. P/3 that two days before, the deceased entered the house of accused appellants. Thus, motive to commit crime is also coming forward from perusing the F.I.R. Ex. P/3. Thus, names of P.W.9 Bhera Ram and P.W. 4 Raju Ram are mentioned in the report Ex.P/3 and when their names have mentioned in the FIR Ex.P/3, then possibility that their names have included later on is ruled out.

The main contention which has been raised by the learned Counsel for the appellants is that in the F.I.R. Ex.P/3, it is stated that the accused appellant Bhoja Ram was armed with axe and that of Sarvan Ram was with Lathi, but the eye witnesses P.W. 5 Bega Ram and P.W. 9 Bhera Ram in the Court statements state" otherwise and hence, they should not be treated as eye witness.

In my opinion, this argument has been dealt with by the learned Sessions Judge in his judgment at page No. 9 and it has been repelled by the learned Sessions Judge holding that since oral report was lodged by P.W. 5 Bega Ram and report was not written by him, therefore, possibility that, by inadvertence, writer of that report might have committed that mistake cannot be ruled out. The learned Sessions Judge has further come to the conclusion that there,is ample evidence that both the accused appellants beat the deceased, therefore, it becomes immaterial as to which weapon was being used by which accused appellants. In my opinion, this reasoning appears to be sound one and on the basis of that reasoning, he has rightly believed the statements of P.W.5 Bega Ram and P.W.9 Bhera Ram.

It is not a case where one or two injuries were caused, but the deceased had 19 injuries and out of 19 injuries some are caused by blunt object and some are by sharp edged weapon and when there is clear cut evidence that both the accused appellants caused these injuries which is found in the injury report Ex.P/1, it loses importance as to who was having what weapon and who caused a particular injury to the deceased. Therefore, from the evidence on record, the fact that injuries which were found on the body of the deceased were caused by the deceased is very well established and there is no suspicion on this point and motive is also there. Therefore, findings of conviction, recorded by the learned Sessions Judge for offence Under Sections 304(II) I.P.C. against both the accused appellants are liable to be confirmed one and the appeal of appellant Bhoja Ram is liable to be dismissed as another accused Sarvan Ram has died.

The argument that since the present accused appellant Bhoja Ram did not cause injury with axe and caused injuries with Lathi, therefore, his case should be treated as a case of lesser gravity, has no force as both the accused appellants have been convicted with the aid of Section 34 I.P.C. Not only this, the deceased had many injuries by blunt object also, therefore, it appears that this accused appellant Bhoja Ram also took active part in causing injuries to the deceased. That apart common intention has to be inferred from the circumstances particularly the part played by the accused and surrounding circumstances, namely nature of weapon used and injuries inflicted as well as meeting of mind amongst the accused. When common indention is established, it is irrelevant who gave fatal blow. Therefore, in the present case accused appellant Bhoja Ram has been rightly convicted with the aid of Section 34 I.P.C. and argument that Section 34 I.P.C. is not applicable in this case is totally baseless and the same is rejected.

ON THE POINT OF SENTENCE:

It has been argued that the accused appellant Bhoja Ram has remained in jail from 11.6.1985 to 11.5.1987 and in my opinion, this period of near about 2 years would not be sufficient to meet the ends of justice for offence u/s 304(II) I.P.C.

Before parting with the judgment, it may be stated that this Court does not want to comment on the point that whether the finding of learned Sessions Judge for coming to the conclusion that it was a case of culpable homicide not amounting to murder punishable u/s 304(II) I.P.C. are correct one or not as the deceased received 19 injuries by blunt as well as sharp edged weapon and died on the same night and injuries were also received on the head. From this point of view also, no further leniency is required in awarding the sentence as the learned Sessions Judge has already taken a lenient view by awarding sentence for a period of 5 years for offence u/s 304(II) I.P.C. Hence the argument raised by the learned Counsel for the appellant stands rejected.

The result of above discussion is that the appeal filed by the accused appellant Bhoja Ram is dismissed after confirming judgment and order dated 13.1.1987 passed by the learned Sessions Judge, Churu in Sessions Case No. 37/85.

Since, the accused appellant Bhoja Ram is on bail, he shall surrender before the learned Sessions Judge, Churu for serving out remaining period of sentence.