Hanuman vs The State of Rajasthan

N.N. Mathur, J.—This appeal is directed against the judgment dated 7.8.1980 passed by the Sessions Judge, Sri Ganganagar convicting the appellant Hanuman of offence u/s 302 I.P.C. and sentenced him to imprisonment for life and to pay a fine of Rs. 200/-and in default of payment to further undergo two months rigorous imprisonment.

The prosecution case in brief is as follows:

On 18.11.1979 at about 3.00 P.M.P.W. 1 Om Prakash and deceased Lalchand went to the field of deceased Lalchand to see the cotton crop. They stayed for half an hour at the Dhani of Ram Pratap Bishnoi where accused Hanuman was also sitting. After some time both of them went to the field and returned back to Dhani. At that time also Hanuman was sitting there. They were sitting in front of the house of Tiku Ram, Lalchand asked Tiku Ram to bring radish. It was tied on the carrier of the cycle. From the house of Tiku Ram, they proceeded on cycle towards their village. Accused Hanuman also followed them. At that time P.W. 2 Patram and P.W. 3 Brijlal were also at the Dhani of Ram Pratap. They were followed by accused Hanuman. When P.W. 1 Om Prakash and deceased Lalchand had gone, just about one Bigha from the Dhani accused Hanuman challenged Lalchand saying (SIC) Lal Chand turned back to look at the accused, accused Hanuman fired the pistol at him which hit below the left side of the ribs. The accused after firing ran away. Lalchand fell down. Om Prakash made a cry saying "Lalchand has been killed". The further case of the prosecution is that the accused Hanuman ran through the Dhani of Ram Pratap which was witnessed by P.W. 2 Patram and P.W. 3 Brijlal. At that time the pistol was in the hand of the accused. P.W. 1 Om Prakash went to the village and informed his brother P.W. 6 Vishnu of the incident. P.W. 6 Vishnu immediately rushed to the place of incident. Om Prakash thereafter informed the wife of Lalchand. Thereafter he went to the village 3Y and arranged a tractor of Nakshetra Singh. Number of villagers had assembled at the place of occurrence by that time. P.W. 6 Vishnu seeing the Lalchand told Om Prakash that he has died. Leaving one Sahiram and P.W. 6 Vishnu on the spot, Om Prakash approached P.W. 5 Ramchandra. The entire incident was narrated to him and thereafter P.W. 5 Ramchandra and P.W. 1 Om Prakash went to the Police Station for lodging the First Information Report. The police report was registered as Ex. P1 at Police Station, Ganganagar at 11.45 P.M.P.W. 15 Gopal Ram, S.H.O., Police Station, Ganganagar informed P.W. 13 Bhopal Singh, Dy. S.P. and proceeded to the place of incident. He prepared the inquest. The dead body was sent for the post-mortem. The accused was arrested on 22.11.1979. The Pistol was recovered in pursuance of the information given by the accused. After usual investigation the police laid a chargesheet against the accused appellant for offence u/s 302 I P.C.

The accused appellant denied the charge and claimed trial. The prosecution in support of the case examined 15 witnesses. The prosecution relied on the direct evidence of P.W. 1 Om Prakash corroborated by the testimony of P.W. 2 Patram and P.W. 3 Brijlal, P.W. 5 Ramchandra and P.W. 6 Vishnu. The prosecution also relied on the recovery of the pistol. In statement u/s 313 of the Criminal Procedure Code the accused stated that all the evidence appearing against him is false and fabricated. The trial court rejected the evidence of recovery of pistol. However, relying on the testimony of eye witnesses P.W. 1 Om Prakash corroborated by evidence of P.W. 2 Patram and P.W. 3 Brijilal and the medical evidence held that the prosecution succeeded in establishing the case against the accused appellant and accordingly convicted him of offence u/s 302 I.P.C. and sentenced as noticed above.

Mr. B.D. Swami learned Counsel appearing for the appellant has assailed the conviction of the appellant on various grounds. It is contended that a proper scrutiny of the evidence would show that the incident had taken place not at the time of sun set but some time later on. It was a dark night and as such the eye-witnesses and other witnesses could not have witnessed the incident. The learned Counsel has also read the evidence and invited our attention to certain omissions and improvement in the statements of P.W. 1 Om Prakash and the other witnesses namely P.W. 2 Patram and P.W. 3 Brijlal. It is also submitted that there is a delay in submitting the First Information Report. It is emphasized that there is inconsistency in the ocular and medical evidence. It is also pointed out that there was no motive for the accused to commit the murder. It is lastly contended that the link evidence in the case is missing. The learned Counsel has supported the finding of the trial court with respect to the recovery of pistol. On the other hand, the learned Public Prosecutor assisted by Shri P.N. Mohanani counsel for the complainant has submitted that there is no reason to disbelieve the testimony of P.W. 1 Om Prakash, which is corroborated by the medical evidence and other witnesses. The learned Counsel also submitted that the learned Judge committee an error in rejecting the evidence of recovery. The learned Counsel has supported the judgment of the trial court on all other counts.

We have scanned the prosecution evidence carefully. We shall deal with each contention in seriatum.

The learned Counsel has emphasized with respect to the timing of incident in order to show that the incident occurred at the time when the sun had disappeared and it was not possible for the alleged witnesses to witness the incident. It is submitted that P.W. 1 Om Prakash has stated that at about 3.00 P.M. he had gone to the field alongwith deceased Lalchand. In the cross-examination, he has stated that he reached to the Maliyon Ki Dhani (place of incident) at about quarter to four or four. Before going to see the crop he was talking with deceased Lalchand and Hanuman for about an hour. Thereafter they stayed in the Maliyon Ki Dhani for about half an hour after taking round. Thereafter they stayed for about half to quarter an hour there. Thereafter they left towards the place of incident. Even according to this calculation, the incident must have taken place latest by 6.30 P.M. The contention of learned Counsel is that it is admitted that the time of sun set was 5.30 P.M. The trial court has found that it may be difficult to fix the exact time of incident but the incident has taken place at a time when there was sufficient visibility. P.W. 1 Om Prakash was alongwith the deceased and therefore, even if the incident had taken place at 6.30 P.M. it was not difficult for him to see the accused Hanuman. It is submitted by the learned Counsel that P.W. 2 Patram and P.W. 3 Brijlal could not have seen the incident. In fact these two witnesses are not the eye witnesses. Thus, we are not impressed with the contention raised by the learned Counsel that it was a dark night and it was not possible for P.W. 1 Om Prakash to see the incident.

P.W. 1 Om Prakash has narrated the incident as given in the First Information Report. There is a lengthy cross-examination, but nothing has been elucidated to discredit the testimony of this witness.

P.W. 2 Patram has stated that in village Chak 2Y he had gone to Brijlal P.W. 3 for taking medicine as he was suffering from fever. He also stated that Brijlal used to give treatment for petty diseases. The house of Brijlal is near to the house of Tikuram. When he reached there in the afternoon near the house of Tikuram, deceased Lalchand, Om Prakash and accused Hanuman were standing. Lalchand has asked Tikuram to bring radish, which were later on tied on the carrier of the cycle. Lalchand and Om Prakash left towards their Dhani on a bicycle. They were followed by accused Hanuman. They had just travelled just for about 1 Bigha or 1-1/2 Bigha, he heard of the pistol fire. He also heard the shouting of Om Prakash saying that Lalchand has been killed. He saw Hanuman running away from their side a pistol in his hand. He tried to inquire from him but he did not respond.

P.W. 3 Brijlal has stated that he has been living in Chak 2Y on the Dhani of Ram Pratap for the last 20 to 22 years. He has stated that that Dhani is also known as Maliyon Ki Dhani. He also stated that by profession he is a farmer but he also gives treatment for petty diseases. On 18.11.1979 witness Patram had come to him for taking treatment of fever. While he was talking with Patram and Tikuram, P.W. 1 Om Prakash, deceased Lalchand and accused Hanuman proceeded towards the canal. They had just moved for about 1 Bigha or 1-1/2 Bigha, he heard of a pistol fire. He also heard the shout of Om Prakash saying that Lalchand has been killed. Om Prakash ran towards the canal. He also saw accused Hanuman running from that side. A pistol was in his hand. In the night at about 8.00 P.M. on the arrival of Sahiram and Vishnu he went near the dead body. Inspite of the lengthy cross-examination, nothing has been elucidated to discredit the testimony of this witness.

P.W. 5 Ramchandra has stated that P.W. 1 Om Prakash had come to him at about 8 or 9 in the night and informed that the Lalchand has been killed by Hanuman. He also asked Om Prakash to accompany him to the Police Station. He went to the Police Station alongwith P.W. 1 Om Prakash and lodged the First Information Report. He also stated that 10 to 11 days prior to the date of incident the accused Hanuman had visited him and complained that Lalchand and promised to lease the land to him but he has leased the same to Ram Pratap. He also stated that he is a poor man and if Lalchand does not lease the land to him, his children will starve. As per the saying of P.W. 5 Ramchandra the accused Hanuman was unhappy on this count with Lalchand.

P.W. 6 Vishnu has stated that in the evening at about 6, P.W. 1 Om Prakash came to him and informed that Lalchand has been killed by Hanuman. He also stated that he has been killed by gun shot in the Maliyon Ki Dhani. He asked him to proceed to the place of incident as he is going to arrange a tractor. On the advice of Om Prakash, he went to the place of incident and found the dead body of Lalchand lying. A cycle was lying near the dead body. Sahi Ram and Om Prakash arrived at the spot at about 8.00 P.M. It is clear from the evidence that P.W. 1 Om Prakash was very close to deceased Lalchand and therefore, he could see the actual firing by Hanuman. Similarly the evidence of P.W. 2 Patram and P.W. 3 Brijlal is relevant to the extent that they had seen the accused Hanuman following the deceased Lalchand and P.W. 1 Om Prakash. Both the witnesses have heard the pistol fire and the shout of P.W. .1 Om Prakash that the Lalchand has been killed. The accused ran from the place of incident towards the north to Ram Pratap''s Dhani where P.W. 2 Patram and P.W. 3 Brijlal were standing. P.W. 2 Patram has categorically stated that he inquired from the accused about the firing but he did not respond. Thus there is evidence to show that both the witnesses had seen the accused running away from the place of incident armed with pistol. The testimony of P.W. 1 Om Prakash is corroborated by the testimony of P.W. 2 Patram and P.W. 3 Brijlal.

P.W. 7 Dr. Rajendra Kumar Gupta stated that he conducted the post-mortem of the dead body of Lalchand vide Ex. P3 and found the following injuries on his body:

Lacerated wound 1/2"x 1/4"x Abdominal cauly deep on the left 10th I.C. space medial to ante axillary line. oval shape. Margins are inverted.

Lacerated wound 1-1/4" x 1"x Abdominal cauly deep on the right lumbar region lead to 1st & 2nd Lumbar tibra Margins are inverted an oval shape.

Abrasion 1/2" x 1/4" on the right knee joint.

He also arrived at the following conclusion:

Injury No. 1 is wound of entry. Injury No. 2 is wound of exit. No blackening or scorching present.

Direction of the firearm is from left to right side above downward.

In the opinion of the doctor the cause of death was shock due to fire arm injury. It is not in dispute that deceased Lalchand died of homicidal death.

A criticism has been levelled by the learned Counsel that as per the statement of P.W. 1 Om Prakash the deceased could not have sustained injury on the front side when the fire was from the back side. We find no substance in the contention. P.W. 1 Om Prakash has categorically stated that accused gave challenge by saying ^^ewNksa ds rko yxk ys^^ which attracted the attention of the deceased. When he twisted the body to look back, the pistol fired by the accused hit front part of the body. It is significant to notice that the entry wound is on the left tenth intropostal space medial to the ante axillary region in an oval shape. In fact this entry would clearly supports the version given by P.W. 1 Om Prakash. It is also submitted by the learned Counsel that a pistol cannot be shot without stretching the arm straight and that obviously the nozzle of the pistol and the entry wound should have been hardly 2 to 3 feet. This being so, there should have been blackening and scorching at the entry wound. It may be stated that P.W. 7 Dr. R.K. Gupta has stated that blackening and scorching is not necessary if the fire is from a distance of 3-4 feet. In view of this, we find no infirmity in the ocular and the medical evidence.

It is also contended by the learned Counsel that the material witnesses have not been produced by the prosecution. According to the learned Counsel, it is only the partisan witnesses who have been produced. Great emphasize has been laid on the fact that Tikuram who was present at the Maliyon Ki Dhani has not been produced. It is also submitted that Nakshetra Singh and Sahiram have also not been produced. P.W. 2 Patram has only stated that he used to work as a ''Hali'' on the field of deceased Lalchand. It does not appear that he was permanently working with the deceased. P.W. 3 Brijlal is not relative of the deceased. He is by caste Mali. In view of this, both the witnesses cannot be said to be interested witnesses. Therefore, non-production of Tiku Ram is not of much consequence. Similarly Nakshetra Singh and Sahiram have reached on the spot after the incident had taken place. In view of this, they can also not be said to be material witnesses.

It is also contended that there is a delay in lodging the First Information Report. According to the prosecution the incident had taken place just after the sun set. According to the learned Counsel it must have taken place at about 8.00 P.M. The F.I.R. has been lodged at about 11.45 P.M.P.W. 1 Om Prakash has stated that he went to the village and informed his brother Vishnu. Thereafter he went to inform P.W. 5 Ram Chandra. He also arranged for the tractor and persons to guard the dead body. It appears that P.W. 1 Om Prakash went to the Police Station alongwith Ramchandra. The tractor gave some trouble and it took some time for its repair. When the tractor could not be repaired, they went to the Police Station on foot. In view of the above facts, it cannot be said that there is a delay in filing the First Information Report. The contention is accordingly rejected.

It is also contended that there was no motive for the accused to commit the murder for a petty reason that the land was not given to him on lease by the deceased Lalchand. In this regard, suffice to say that when there is a direct evidence available on the record, therefore, the absence of motive even if any will have no effect on the credibility of the prosecution case.

It is submitted that there is no finger prints found on the pistol so as to connect the accused with guilt. It is also contended that no foot prints at the site of occurrence were taken by the investigating agency. It is not necessary to deal with this contention as any lapse on the part of the investigation does not affect the credibility of the prosecution, if it is otherwise established.

The learned Judge has discarded the evidence of recovery of pistol on the ground that it is improbable that after committing the offence like murder the accused instead of throwing away a pistol of low price of Rs. 500/- or 600/- will keep in the house which may be used as evidence against him. The learned Judge also found some discrepancies in the Register maintained by Malkhana Incharge. We are unable to agree with the view taken by the learned trial Judge. It is well established that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. Reference to be made to the decision of the Apex Court in State of Himachal Pradesh v. Jeet Singh reported in 1999 Cr. L.J. Page 2025. In the instant case the accused while in police custody gave information vide Ex. P 17 and in pursuance thereof the pistol was recovered vide Ex. P4. The pistol was sent to the Forensic Science Laboratory. The ballistic expert vide Ex. P 24 opined as follows:

The 303 country made pistol (marked W/1) contained in packet ''D'' is serviceable.

one .303 cartridge case (marked C/1) found loaded in the chamber of pistol (marked W/1) has been fired from the pistol under reference.

The .303 bullet contained in packet ''B'' could have come out of the cartridge case (marked C/1) which is also a .303 cartridge case.

The caliber of the bullet contained in packet ''B'' is .303 inch.

Thus it is proved that the recovered pistol is a serviceable pistol. The cartridge which was recovered from the place of incident was placed in Packet B. Packet D contained one .303 country made pistol marked W/1 and one .303 KF-69 cartridge case (marked C/1) found loaded in the chamber of pistol marked W/1. The expert opined that .303 bullet is contained in packet B could have come out of the cartridge case marked C/1, which is also a .303 cartridge case. There is a definite opinion that .303 cartridge case loaded in the pistol has been fired from the pistol recovered. It may also be noticed that blood has also been found on the .303 bullet taken from the packet marked B. The expert vide Ex. P 25 has opined that blood was detected in Ex. 1 from the packet marked ''B''. He has also stated that the quantity of blood in Ex. No. 1 (from packet marked ''B'') was considered too small to be forwarded to the serologist for serological examination. However, the fact remains that there was blood on the bullet. It is contended by the learned Counsel that there is no evidence to show that there was human blood on the bullet. Recently the Apex Court recently in State of Rajasthan Vs. Teja Ram and Others, has taken the view that failure of Serologist to detect origin of blood on the axe due to disintegration of serum does not mean that blood stuck on the weapon would not have been of human being. The court observed in Para 25 as follows:

Failure of the Serologist to detect the origin of the blood, due to disintegrated of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a Serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such a guess work that blood on the other axe would have been animal blood is unrealistic and farfetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity no benefit can be claimed by the accused.

Thus, we of the view that the statement of P.W. 1 Om Prakash is also corroborated by the evidence of recovery of the pistol. In view of the aforesaid discussion, we hold that the prosecution has succeeded in bringing home the guilt of the accused.

In view of the above discussion, we find no merit in this appeal and the same is dismissed. The accused is on bail. His bill bonds stand cancelled. The accused will surrender to judicial custody to undergo the remaining part of the sentence. The Chief Judicial Magistrate, Sri Ganganagar is directed to get the accused appellant arrested and send the accused appellant to jail to serve out remaining part of the sentence.