Pooranmal and Others vs State of Rajasthan

Mohammad Rafiq, J.—This appeal is directed against the judgment dated 9/7/2003 passed by learned Additional District and Sessions Judge (Fast Track) Sikar in Sessions Case No. 16/2003 whereby, the accused-appellants were and sentenced in the following manner:-

� accused-appellant No. 1-Pooranmal convicted for offence u/S. 302 IPC and sentenced to life imprisonment with fine of Rs. 1,000/- and in default of payment of fine, sentenced to further undergo imprisonment of three months, convicted for offence u/S. 302/34 IPC and sentenced to life imprisonment with fine of Rs. 1,000/- and in default of payment of fine, sentenced to further undergo imprisonment of three months, convicted for offence u/S. 447 IPC and sentenced to imprisonment of one month with fine of Rs. 100/- and in default of payment of fine, sentenced to further undergo imprisonment of seven days and convicted for offence u/S. 324 IPC and sentenced to rigorous imprisonment of one year with fine of Rs. 500/- and in default of payment of fine, sentenced to further undergo imprisonment of one month.

� accused-appellant No. 2-Hariram @ Hariprasad convicted for offence u/S. 302 IPC and sentenced to life imprisonment with fine of Rs. 1,000/- and in default of payment of fine, sentenced to further undergo imprisonment of three months, convicted for offence u/S. 302/34 IPC and sentenced to life imprisonment with fine of Rs. 1,000/- and in default of payment of fine, sentenced to further undergo imprisonment of three months, convicted for offence u/S. 447 IPC and sentenced to imprisonment of one month with fine of Rs. 100/- and in default of payment of fine, sentenced to further undergo imprisonment of seven days and convicted for offence u/S. 324/34 IPC and sentenced to rigorous imprisonment of one year with fine of Rs. 500/- and in default of payment of fine, sentenced to further undergo imprisonment of one month.

� accused-appellant No. 3-Prakash convicted for offence u/S. 302/34 IPC and sentenced to life imprisonment with fine of Rs. 1,000/- and in default of payment of fine, sentenced to further undergo imprisonment of three months, convicted for offence u/S. 447 IPC and sentenced to imprisonment of one month with fine of Rs. 100/- and in default of payment of fine, sentenced to further undergo imprisonment of seven days and convicted for offence u/S. 324 IPC and sentenced to rigorous imprisonment of one year with fine of Rs. 500/- and in default of payment of fine, sentenced to further undergo imprisonment of one month.

� All the sentences were ordered to run concurrently.

Brief facts of the case are that on the basis of a ''parcha bayan'' (Exb. P/8) of Sultana Ram, first information report being FIR No. 29/2003 was registered against the accused-appellants at Police Station Sadar, Sikar on 6/2/2003 at 8.30 p.m. in regard to the incident, which took place at 10.00 p.m. on 5/2/2003. It was alleged in the written report that at about 10.00 p.m. on 5/2/2003, his wife Geeta and sons Boduram and Kurdaram were in their house. At that time, accused Pooranmal, Munshi, Ramkunwar, Prakash, Hariram and Smt. Mali armed with lathis and knives, came there. Pooranmal inflicted a knife blow on the vagina of Geeta. When Boduram and Kurdaram tried to save her, Pooranmal inflicted another knife blow on the stomach of the complainant-Sultanaram. Hariram inflicted knife blow on Kurdaram, due to which, he died on the spot. The neighbours saved them. Dead-body of Kurdaram was lying on the place of occurrence. There was dispute between the parties about a residential house. Action be taken against culprits. After usual investigation, challan was filed against as many as six accused. Charges were framed against them for the aforesaid offences, which they denied and claimed to be tried. Prosecution produced seventeen witnesses and exhibited 46 documents. Defence produced one witness Kajod as DW1, however did not exhibit any document. Learned trial court upon conclusion of the trial, acquitted the accused Munshilal, Smt. Malidevi and Ramkumar of charges of offence u/Ss. 148, 449, 450, 452, 302/149, 307/149, 323, 324, 324/149 and 323/149 IPC and also acquitted the present accused-appellants of the charge of offence u/Ss. 148, 449, 450, 452, 323 and 323/149 IPC, giving them benefit of doubt for the said offences. Trial court however convicted and sentenced the present accused-appellants for the offences u/Ss. 302, 302/34, 447, 324 and 324/34 IPC and sentenced them for the said offences in the manner indicated above.

Shri Biri Singh Sinsinwar, learned senior counsel for the accused-appellants while assailing the judgment impugned in the appeal argued that trial court has failed to take into consideration the testimony of prosecution witnesses in its true perspective. Statement of most of the prosecution witnesses are full of contradictions. The accused-appellants thus are entitled to the benefit of doubt. Trial court failed to take into consideration that the medical report of the injured and the deceased, which clearly shows that only one weapon was used in the commission of crime. Deceased-Kurdaram received one incised wound. Sultanaram also received number of injuries. Post mortem of the body of the deceased Kurdaram was conducted on 6/2/2003 vide Exb. P/4, according to which, he received one incised wound. Geeta received three incised wounds. Learned senior counsel argued that, which one of the two knife blows by similar weapon by the same accused at the stomach, proved cause of death, is not clear from the evidence of the prosecution. As per the prosecution story, Pooranmal and Kurdaram both on the fateful day were in the marriage ceremony and after taking liquor, Kurdaram tried to snatch the drum from the ladies and beat it. When villagers objected to it, he started abusing them. The incident thus took place on the spur of the moment. This aspect of the story has been completely overlooked by the trial court. Learned senior counsel further argued that as per the prosecution case, the accused-appellants were armed with knife having button but no such knife was recovered from any one of the accused. The trial court has erred in law in not appreciating the statement of Kajod (DW1), cousin of deceased-Kurdaram and Sultanaram. The said witness was cited as defence-witness because prosecution deliberately did not produce him despite mentioning his name in the calendar of witnesses. This witness has categorically stated that there was a marriage in the house of Kurdaram. Kurdaram was heavily drunk and was under the state of intoxication. He snatched the drum for beating from the ladies. Kurdaram and Sultanaram both were grappling with each other. Wife of Sultanaram, Geeta also asked him as to why he was quarreling with people after consuming liquor. Evidence of this witness has received corroboration from other circumstances.

It is argued that when the co-accused have been acquitted on the same set of evidence, accused-appellants could not have been convicted. Trial court has erred in law in not even considering that first information report lodged on the basis of ''parcha bayan'' of Sultanaram (Exb. P/8) bears his thumb impression. The ''parcha bayan'' is highly doubtful because deceased-Sultanaram was a literate person. Boduram (PW6) S/o deceased-Sultanaram has proved that Sultanaram knew how to make signature. He has also stated that when he reached hospital, his condition was serious and he was unconscious. Since the incident had taken place in the night, prosecution witnesses could not with certainty name the accused with the specific overt act particularly when both Kurdaram and Sultanaram received one knife injury each, but one injury appears to have been caused by one single weapon and by one accused. Therefore, conviction of accused-appellants and acquittal of the co-accused on the same set of evidence is highly illegal. The accused-appellants are thus entitled to the benefit of doubt. The appeal be therefore allowed and they be acquitted.

Shri Javed Choudhary, learned Public Prosecutor has opposed the appeal and argued that apart from Kurdaram and Sultanaram, Geeta and Bodu Ram have also sustained injuries in the same incident. Geeta has been examined as PW4 and Boduram, who happens to be son of deceased-Sultanaram has been examined as PW6. These two witnesses have in their deposition specifically proved the overt act in so far as deceased Sultanaram is concerned against Pooranmal and for deceased Kurdaram, against Hariram. Learned Public Prosecutor argued that Prakash was having one knife and one lathi. The witnesses have proved that Prakash initially inflicted a knife blow on the left thigh of Boduram (PW6) and then he delivered a lathi blow on his body. The recovery of knife has been made at the instance of accused-appellant Hari Ram @Hari Prasad vide Exb. P/36, recovery of lathi at the instance of accused-appellant Prakash vide Exb. P/38 and recovery of one iron dagger (knife) has been made at the instance of accused-appellant Pooranmal vide Exb. P/40. Injury reports of deceased-Sultana Ram, Smt. Geeta and Bodu Ram have been proved by Dr. G.R. Tanwar (PW1) vide Exb. P/1, Exb. P/2 and Exb. P/3. This witness (PW1) has also proved the post-mortem report of deceased-Kurdaram vide Exb. P.4. Dr. S.S. Sharma (PW2) has proved the post-mortem report of Sultanaram vide Exb. P.5. The trial court has to the extent of over implication acquitted three of the accused. The finding of the trial court in convicting the accused-appellants finds corroboration from the direct incriminating evidence proved against the accused-appellants. The appeal therefore be dismissed.

We have given our anxious consideration to the rival submissions and perused the material available on record.

Dr. G.R. Tanwar (PW1) has proved the injury reports of Sultana Ram, Smt. Geeta and Boduram vide Exb. P/1, Exb. P/2 and Exb. P/3. Similarly, he has also proved the post-mortem report of deceased-Kurdaram vide Exb. P/4. According to the post-mortem report (Exb. P/4), deceased-Kurdaram received the following injuries:-

Incised wound 3x2cm muscle deep chest and between the fifth and sixth ribs.

Abrasion 2x2cm on right side of the face.

Abrasion 1x1cm on forehead.

Dr. G.R. Tanwar (PW1) has also proved the injuries of Geeta (PW4). She received the following injuries:-

Incised wound 4x1x1cm on backside of the chest.

Incised wound 6x3x1cm on right hip.

Incised wound 1x1cmxmuscle deep below urethral region.

Incised wound 1x1cmxmuscle deep below urethral region.

Dr. G.R. Tanwar (PW1) has proved her injuries to be simple in nature. This witness has also proved one injury of Boduram (PW6) to be incised wound 2x1x1/2cm though opined to be simple in nature.

Dr. S.S. Sharma (PW2) has proved the postmortem report of deceased-Sultanaram vide Exb. P/5, according to which, following injuries were found on his body:-

Incised wound 6cmx4cmxintestines were coming out from left side of stomach.

Dr. S.S. Sharma (PW2) has also opined the cause of death to be hemorrhagic shock due to oozing blood from small intestine, which was sufficient to cause death.

It is thus evident that two deceased and two injured have all sustained incised wounds by a sharp edged weapons and recovery of knife has been made at the instance of accused-appellant Hari Ram @Hari Prasad vide Exb. P/36, recovery of lathi at the instance of accused-appellant Prakash vide Exb. P/38 and recovery of one iron dagger (knife) has been made at the instance of accused-appellant Pooranmal vide Exb. P/40. Geeta (PW4) has stated that when her husband Sultanaram, Taramani, her sons Boduram and Kurdaram were sleeping in their house, Munshiram, Pooranmal, Mali, Hari, Prakash and Ramkunwar suddenly came. Pooranmal and Hariram were having knives and Prakash was having lathi and knife. Pooranmal inflicted knife blow on the left armpit of her husband Sultanaram, Hariram inflicted knife blow on the chest of Kurdaram, Prakash inflicted knife blow on the left thigh of Boduram and then lathi blow on his body, Munshi, Mali and Ramkuwar also inflicted lathi blows on all of them. Pooranmal inflicted knife blow on her vagina. Kurdaram died on the spot. Boduram (PW6) in his statement has substantially corroborated the version of Geeta (PW4) stating that Pooranmal inflicted knife blow on the vagina of his mother (Geeta). When her mother tried to save his father (Sultanaram), Pooranmal inflicted a knife blow on the left armpit of Sultanaram. Hariram immediately on reaching the place of occurrence, started abusing filthy language. When his mother came out, Hariram inflicted a knife blow on the chest of deceased-Kurdaram. Prakash was having a knife and lathi. He inflicted knife as well as lathi blow on his body.

Geeta (PW4) was confronted with her statement recorded by the police u/s 161 Cr.P.C. but she could not give any explanation. In that statement, she had stated that Pooranmal, on reaching the place of incident, inflicted a knife blow over her vagina. When her husband and son came to save her, Pooranmal inflicted a knife blow on the left armpit of her husband. Hariram also had a knife, who inflicted a blow on the chest of his son Kurdaram. Prakash, who had a lathi, delivered a lathi blow on the body of her son Boduram. Boduram (PW6) has stated that Prakash initially inflicted a knife blow on his left thigh and then delivered a lathi blow on his body. In cross-examination, he has stated that he (Prakash) inflicted knife blow on him and when he tried to run away, Prakash then inflicted a lathi blow while he was running. ''Parcha bayan'' of deceased-Sultanaram (Exb. P/8) though has attributed the injuries of Geeta (PW4) by knife to accused-appellant Pooranmal but he has further stated that when he and his sons Boduram and Kurdaram were trying to save Geeta, Pooranmal inflicted a knife blow on his stomach and Hariram inflicted a knife blow on the body of his son Kurdaram and also gave beating to Boduram. But there is no such specific allegation against accused appellant-Prakash. Geeta (PW4) in her statement (Exb. D/1) recorded u/s 161 Cr.P.C. has alleged that he (Prakash) inflicted a lathi blow on the person of Boduram (PW6). Injury report of Boduram (PW6) Exb. P/3 proved that he sustained only one incised wound in the size of 2x1x1/2cm at left thigh, which was opined to be simple. The allegation against accused Prakash therefore does not find corroboration not only from the ocular evidence but also from the recovery of weapon. While recovery of knife has been made at the instance of accused-appellant Hari Ram @Hari Prasad vide Exb. P/36, recovery of lathi has been made at the instance of accused-appellant Prakash vide Exb. P/38 and recovery of one iron dagger (knife) has been made at the instance of accused-appellant Pooranmal vide Exb. P/40.

Boduram (PW6) has not received any injury by lathi. It is therefore clearly brings out that knife injury to Boduram on his left thigh must have been caused either by Pooranmal or Hariram, who both had knives and not Prakash. Even otherwise, version of Boduram (PW6) that accused Prakash inflicted knife blow on his thigh and then also inflicted a lathi blow on his body, does not inspire confidence for three reasons; firstly; accused Prakash could not be expected to simultaneously carry and use two weapons; secondly; Geeta in earlier version to police u/S. 161 Cr.P.C. alleged that he inflicted a lathi blow on Boduram and not by knife, yet no corresponding injury by lathi has been found on the person of Boduram and thirdly; only lathi and not the knife, has been recovered at the instance of accused Prakash. The guilt of the accused appellant Prakash cannot therefore be held to have been proved beyond reasonable doubt. We therefore hold accused-appellant Prakash entitled to the benefit of doubt.

So far as accused-appellants Pooranmal and Hariram @Hariprasad are concerned, their offence is fully proved from the evidence on record, which finds sufficient corroboration in the light of material evidence available on record against them.

In view of aforesaid discussion, while guilt of the accused-appellants Pooranmal and Hariram @Hariprasad is proved beyond all reasonable doubt, whereas charge for the alleged offence against accused-appellant Prakash is not found proved beyond all reasonable doubt. Accused-appellant Prakash therefore deserves to be given the benefit of doubt.

In the result, this appeal so far as accused-appellant No. 1-Pooranmal S/o Khetaram and accused-appellant No. 2-Hariram @Hariprasad S/o Munshilal is concerned, the same is dismissed but so far as accused-appellant No. 3-Prakash S/o Banshilal is concerned, it is allowed. Accused-appellant Prakash S/o Banshilal thus is acquitted of the charge of offence u/Ss. 302/34, 447 and 324 IPC. He is already on bail, hence he need not to surrender. His bail bonds and surety bonds are accordingly discharged. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused-appellant No. 3-Prakash S/o Banshilal is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of SLP against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.