Ram Chandra vs State of Raj.

Gopal Krishan Vyas, J.—The instant criminal leave to appeal has been filed by the accused appellant Ram Chandra S/o. Ram Lal under Section 374(2) of Criminal Procedure Code against the judgment dated 21.12.2005 passed by Addl. Sessions Judge, Raisingh Nagar in Sessions Case No. 11/2005 by which the learned trial Court convicted the accused appellant for offence under Section 302 I.P.C. and passed sentence for live imprisonment along with fine of Rs. 2,000/- and in default of deposition of fine to further undergo six months'' RI.

As per facts of the case, on 28.3.2005 at about 4.30 a.m., the complainant Krishan Lal PW-6 lodged a first information report at Police Station Muklava, District Sriganganagar in which it was alleged that his brother Ram Kumar who was residing at Village 77 L.N.P. along with his family was cultivating the land of one Kashiram Vishnoi on share basis. Wife of Ram Kumar died before 4 - 5 months and Ram Chandra - his cousin who is residing along with his family at Village 28 M.L. ki Rohi is also cultivating land of Nakshatra Singh. It was stated in the FIR that on 27.3.2005, Ram Kumar and Ram Chandra (accused appellant) both cut mustered crop from the fields of Kashi Ram Vishnoi and in the night at about 8 - 9 pm., Ram Kumar went to Ram Chandra (accused appellant) for making ''doli'' in the agricultural land of Ram Chandra, from where both Ram Chandra (accused appellant) and Ram Kumar took bath at about 2 a.m. in the night, thereafter, Ram Chandra prepared tea at that time, deceased Ram Kumar came to sit near him but after some time Ram Chandra (accused appellant) went in the ''Kotha'' (room) and took weapon ''Kassi'' and inflicted injuries upon the head of Ram Kumar. Due to the injuries caused by Ram Chandra (accused appellant), Ram Kumar died on spot and after incident, Ram Chandra tried to kill his wife Sulochana and his son Sonu but they ran away from the place of occurrence. The complainant stated in the FIR that this fact was told to Maya wife of Indra Raj by Sulochana. Thereafter, Manphool Ram, Ram Swaroop, Harnek Singh and Kashi Ram went on spot and they saw that body of Ram Kumar was lying in the house of appellant. As per author of the FIR, said incident took place due to suspicion of accused appellant with regard to illicit relation of his wife Sulochana (PW-4) with deceased Ram Kumar.

After registration of FIR No. 36 dated 28.3.2005 upon aforesaid complaint, the investigating officer of Police Station Muklava District Sriganganagar proceeded for investigation and in the investigation, weapon ''kassi'' was recovered at the instance of accused appellant vide Ex. 3, which was sustained with blood. Likewise, pant and shirt of deceased Ram Kumar was also seized vide Ex. 7 and ''payjama'' of accused appellant was also recovered as per his information vide Ex. 16 on 31.3.2005. In the investigation, post-mortem of body of deceased Ram Kumar was also conducted by Medical Officer of Family Health Centre, Udsar and post-mortem report Ex. 23 was prepared in which seven wounds were found upon the body of deceased.

After recording the statement of all the witnesses under Section 161 Cr.P.C., the investigating officer filed charge-sheet against the accused appellant in the Court of Judicial Magistrate, First Class, Raisingh Nagar from where the case was committed to the Court of Addl. Sessions Judge, Raisingh Nagar where trail was commenced by the Addl. Sessions Judge, Raisingh Nagar.

In the trial, charge under Section 302 I.P.C. was framed by the trial Court, thereafter, oral statement of 13 prosecution witnesses were recorded including the statement of eye witnesses PW-4 Sulochana - wife of accused appellant and PW-8 Shailendra @ Sonu - son of accused appellant and statement of medical officer PW-11 Nirmal Saini. After recording evidence of prosecution, the statement of accused appellant under Section 313 Cr.P.C. were recorded and finally after providing opportunity of hearing to both the parties, the trial court convicted the accused appellant for offence under Section 302 I.P.C. vide judgment dated 21.12.2005 and sentenced him for life imprisonment along with fine of Rs. 2,000/-

In this appeal, the accused appellant has challenge the said judgment.

Learned counsel for the appellant vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt as no reliable evidence is produced by the prosecution to prove the allegation of murder of deceased Ram Kumar against the accused appellant, therefore, the judgment impugned deserves to be quashed.

Learned counsel for the appellant argued that the trial Court has illegally relied upon the statement of PW-4 Sulochana - wife of accused appellant because she was having illicit relation with deceased Ram Kumar, therefore, false story was concocted by her and statement was given by her against him, therefore, only on this ground, the statement of PW-4 Sulochana deserves to be rejected for the purpose of conviction of accused appellant but the trial Court completely ignored this fact. While inviting attention towards the statement of PW-4 Sulochana, it is submitted that upon perusal of her statement, the said witness cannot be treated to be eye witness of the incident. Further the statement of PW-8 Shailendra @ Sonu is also not treated to be a reliable evidence because in the cross examination, PW-8 Shailendra stated that he had not seen any fighting with the accused appellant and the deceased Ram Kumar, therefore, the judgment rendered by trial Court is based upon the testimony of PW-4 Sulochana and PW-8 Shailendra @ Sonu deserves to be quashed.

Learned counsel for the appellant further argued that there is no evidence of motive of the accused appellant for killing deceased Ram Kumar so also recovery of weapon ''kassi'' is also not proved beyond reasonable doubt because as per the statements of witnesses of recovery, ''kassi'' was taken by the Investigating Officer on the date of occurrence itself but in the investigation, Investigating Officer wrongly shown that said ''kassi'' was recovered on 31.3.2005 as per the information given by the accused appellant, therefore, the whole case is based upon untrustworthy evidence of the prosecution, therefore, the judgment impugned dated 21.12.2005 may be quashed and accused appellant may be acquitted from the charges levelled against him.

Lastly in the alternative, it is argued that even if the whole prosecution case is accepted then also, it can be said that the incident took place all of sudden when appellant saw his wife and deceased Ram Kumar in objectionable condition as per his statement made under Section 313 Cr.P.C., therefore, the case cannot travel beyond Section 304 Part-I I.P.C. and the accused appellant is behind the bars since March, 2005, therefore, the sentence awarded to the accused appellant under Section 302 I.P.C. may be altered to Section 304 part-I I.P.C. and sentence of life imprisonment may be reduced to already undergone.

Per contra, learned Public Prosecutor submits that prosecution has proved its case by leading evidence of eye witnesses - PW-4 Sulochana - wife of accused appellant and PW-8 Shailendra @ Sonu - son of accused appellant, therefore, the trial Court has rightly relied upon the testimony of both these witnesses for the purpose of holding the accused appellant guilty for offence under Section 302 I.P.C. Learned Public Prosecutor submits that there is no strength in the argument of learned counsel for the appellant that the prosecution has not proved the recovery of weapon ''kassi'' and clothes beyond reasonable doubt because all the witnesses have categorically stated in their statements that weapon ''kassi'' and clothes was recovered in from of them, therefore, this appeal deserves to be dismissed.

After hearing learned counsel for the appellant as well as learned Public Prosecutor, we have perused the entire evidence and considered the arguments and grounds raised by the learned counsel for the accused appellant.

It emerges from the judgment that the conviction of appellant under Section 302 I.P.C. is based upon the testimony of two eye witnesses namely PW-4 Sulochana (wife of accused appellant) and PW-8 Shailendra @ Sonu (son of accused appellant). Wife of appellant PW-4 Sulochana has categorically gave following statement that:

In the cross-examination, the following reply is given by PW-4 Sulochana for the allegation of illicit relation with the deceased, which reads as under:--

Likewise, in the statement of PW-8 Shailendra @ Sonu - son of accused appellant, the following statement is made in the trial Court, which reads as under:--

In the cross-examination, no question was put to this witness with regard to illicit relation of his mother with deceased but in the statement recorded under Section 313 Cr.P.C., the accused appellant himself gave reply to the question No. 18 put to him by the trial Court, which reads as under:--

Meaning thereby, for taking defence, the accused appellant made allegations against his own wife that she was having illicit relation with deceased, therefore, quarrel took place but it is nowhere accepted by him in his statement recorded under Section 313 Cr.P.C. that due to illicit relation he has inflicted injuries by ''kassi'' to the deceased Ram Kumar. In our opinion, the defence taken by the accused appellant is not trustworthy nor it can be accepted because as per the postmortem report, seven incised injuries by sharp edged weapon were found upon the head and other part of the body of deceased. Meaning thereby, one after another, injuries were inflicted by the accused appellant to the deceased which is corroborated from the post-mortem report and the opinion given by the medical officer PW-11 Nirmal Saini that "patient died due to combined effect of coma and shock due to injury of brain and spinal cord and hemorrhage". Upon perusal of the post-mortem report, Ex. 23, it is revealed that seven incised injuries were caused by sharp edged weapon, out of which three grievous injuries were found upon the occipital bone of head. Meaning thereby, prosecution has proved the fact that injuries were caused by the accused appellant by ''kassi'', which is recovered at his instance, therefore, it is a case in which the prosecution has proved its case beyond reasonable doubt by leading reliable and trustworthy evidence.

We have considered the arguments of learned counsel for the appellant that the prosecution has not proved its case beyond reasonable doubt but in our opinion, the said argument deserves to be rejected solely on the ground that the case is based upon the statement of two eye witnesses who are family member of the accused appellant PW-4 Sulochana his wife and PW-8 - Shailendra @ Sonu - his son and both these eye witnesses categorically stated in their statement that the accused appellant inflicted repeated injuries to the deceased Ram Kumar in front of them by ''kassi'' and said ''kassi'' was recovered at the instance of accused appellant.

We have also perused the statement of witnesses of recovery PW-6 Krishan Lal, PW-7 Harnek Singh and Investigating Officer PW-9 Arvind Bishnoi. All these witnesses have categorically stated that weapon ''kassi'' was recovered as per the information of the accused appellant on 31.03.2005 at 4 p.m. The recovered articles, which are ''kassi'' and pant and shirt of deceased, payajama of appellant and the blood soil and controlled soil of the place of occurrence were sent to the FSL, Rajasthan, Jaipur and vide Ex. P21, the FSL, Rajasthan, Jaipur gave following report:--

"1. On serological examinations, the blood stains on the following exhibits were found to be of HUMAN Origin:--

2(from-B), 3,4(from-C) 5 (from-D) and 6 (from-E) 2. Blood could not be detected in the following exhibits:--

xxxxx 3. The origin of the stains on exhibits noted below could not be determined for the reason stated:--

xxx." 20. Meaning thereby, as per the report of FSL, the human blood was found upon the weapon ''kassi'', payajama of accused and pant and shirt of deceased, therefore, in our opinion, the prosecution has proved its case beyond reasonable doubt by leading trustworthy evidence, therefore, the argument of learned counsel for the appellant that the recovery of weapon ''kassi'' and clothes are not proved is not acceptable. In view of above, it can be said that the prosecution has proved its case beyond reasonable doubt against the accused appellant for commission of offence under Section 302 I.P.C.

We have also considered the argument of learned counsel for the appellant that the offence under Section 302 I.P.C. is not made out against the accused appellant because incident took place in the spur of moment but as per the statement of accused appellant under Section 313 Cr.P.C., he is not accepting the fact that he has inflicted the injuries due to sudden provocation, therefore, the alternative prayer made by the accused appellant is also hereby rejected.

In view of above discussions, no case is made out for interference because the prosecution has proved its case beyond reasonable doubt against the accused appellant, therefore, the instant criminal appeal is hereby dismissed.