Ramdas vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—The appellant Ramdas S/o. Brahmjeet, as per prosecution on 22.3.2007 at about 4:00 PM, in village Chandiyan Ka Pura, fired a shot from his licensed gun on Pappu which hit him below the left shoulder resulting into his death.

The court of Additional Sessions Judge (Fast Track) No. 2, Dholpur, vide impugned judgment dated 9.7.2008, held the appellant guilty of offence under Section 302 IPC. However, the trial court acquitted the appellant for the offence under Section 30 of Arms Act. Having convicted the appellant for the aforesaid offence, vide a separate order of even date sentenced him to undergo life imprisonment and to pay a fine of Rs. 5,000/-; in default of payment of fine, to further undergo six months additional imprisonment.

Aggrieved against his conviction and sentence, the appellant has instituted the present appeal to challenge his conviction and sentence.

The criminal proceedings in the present case were set into motion on the basis of written statement (Exhibit-P/11) presented by Pratap Singh (P.W.5) before Rajendra Kumar Sharma (P.W.16), who on the date of occurrence was posted as SHO, Police Station Diholi.

Rajendra Kumar Sharma (P.W.16) in the court deposed that on 22.3.2007, he was posted as SHO, Police Station Diholi. At 4:30 PM, he received a telephonic information that a shot has been fired from a gun in village Chandiyan Ka Pura. This witness proceeded with police party to the spot after making report in the daily diary (Exhibit-P/20A) in the register. On the way to the spot, at village Dabera, he found injured Pappu in a vehicle. He had suffered firearm injury on the shoulder and his condition was serious. He was sent to Sadar Hospital, Dholpur. The information to this effect through control room was relayed to SHO, Kotwali. This witness reached at the spot, where Pratap Singh (P.W.5) presented written report (Exhibit-P/11).

The written report (Exhibit-P/11) when translated into English reads as under:--

"To

SHO Saheb, Police Station Diholi.

Sub: Registration of case.

Sir,

It is submitted that today on 22.3.2007 at about 4:00 PM, my maternal uncle had gone to take a round of his field. The name of my maternal uncle is Pappu. In the field of my maternal uncle, cows of Ramdas were grazing. My maternal uncle had pushed cows out of the field. Then from the side of village, Ramdas Thakur came. My maternal uncle told Ramdas to take care of his cows. Upon which, Ramdas said that his cows will graze like this. On this issue, verbal altercation ensued between maternal uncle and Ramdas. Ramdas went to his house. As my maternal uncle along with the cows reached near the house of Ramdas, Ramdas fired a shot from his licensed gun at my maternal uncle with an intention to kill him. The shot hit my maternal uncle below the shoulder. The said occurrence was witnessed by me and Dharm Singh Thakur. Hearing the noise of shot fired, many people gathered at the spot. The villagers took my maternal uncle in an injured condition to the Sadar Hospital, Dholpur and he got admitted there. My maternal uncle has died. Before his death, statement of my uncle was recorded by police. The dead body of my maternal uncle is lying in the hospital. Legal action be taken.

Sd/-

Pratap Singh S/o. Mata Prasad b/c Thakur, R/o Chandiyan Ka Pura, Magra Andvapuraini, P.S. Diholi."

On the basis of above written report (Exhibit-P/11), a formal FIR (Exhibit-P/22) bearing No. 33/07 was registered at the Police Station Diholi, District Dholpur for the offence under Section 302 IPC.

Dr. Seema Garg (P.W.12) in the court deposed that on 22.3.2007, she was posted as Duty Doctor at General Hospital, Dholpur. Pappu was admitted in male Surgical Ward at Bed No. 6. In her presence, S.I. Shaukat Ali (P.W.11) had recorded statement of Pappu (Exhibit-P/15). This witness had attested the same.

Shaukat Ali (P.W.11) stated that on 22.3.2007 he was posted at Police Station Kotwali. He had gone to General Hospital, where Pappu was lying admitted. In the presence of Duty Doctor, he had recorded the statement of Pappu. This witness stated that the patient was fit to make statement and was speaking and he had recorded his statement (Exhibit-P/15).

The statement of Pappu (Exhibit-P/15) recorded under Section 161 Cr.P.C. by Shaukat Ali (P.W.11) in the presence of Dr. Seema Garg (P.W.12), has been termed as dying declaration.

In his statement (Exhibit-P/15), the deceased Pappu stated that on 22.3.2007, at about 4:00 PM, he had gone to take round of his fields. When cows of Ramdas started grazing in his field, he had restrained the cows. Meanwhile, Ramdas S/o. Brahmjeet by caste Thakur came. Pappu questioned Ramdas as to why he is not taking care of his cows, upon which Ramdas said that his cows will graze like this. Resultantly, a verbal duel had ensued. Ramdas went towards his house. When Pappu alongwith cows reached near the house of Ramdas, Ramdas brought his licensed gun and with an intention to kill fired a shot. At that time, Dharm Singh Thakur (P.W.4) S/o. Devi Ram Thakur and Pratap (P.W.5) S/o. Mata Prasad Thakur were also present at the spot. After hearing the noise of shot fired, people of the village had also gathered. The accused ran away from the spot. The family members and villagers brought Pappu to the hospital.

The said statement (Exhibit-P/15) was recorded on 22.3.2007 at 7:25 PM, and the same was verified by Dr. Seema Garg (P.W.12).

Dr. V.N. Singh Tomar (P.W.14) on 23.3.2007 at 10:00 AM, had conducted autopsy on the dead body of Pappu. As per Post Mortem Report (Exhibit-P/18.), Pappu had died in the male surgical ward of General Hospital, Dholpur on 22.03.2007 at 8:10 PM. In the said post mortem report, doctor had noted the following injuries on the person of the deceased Pappu:--

"(i) Gun shot injury 1/2 x 1/2 cm, with charring and immersion, margins at the wound were inverted over the left shoulder ant. towards entry with bleeding on squeezing."

On internal examination, doctor had noted that there was a fracture of 2nd, 3rd and 4th ribs of left side at axillary level. Pleura was lacerated and the cavity was full of blood. Left lung was also lacerated. As per opinion of the doctor, the cause of death was gun shot injury leading to damage/fracture of scapula and head of humerous and fracture of ribs No. 2nd, 3rd, and 4th accompanied by excessive bleeding leading to shock.

In the present case, the prosecution in all had examined sixteen witnesses. Dharm Singh (P.W.4), Pratap (P.W.5) and Bhura (P.W.9), brother of the deceased had stepped into witness box to depose as eyewitness of the occurrence.

Dharm Singh (P.W.4) in the court stated that about 5/6 months before his deposition, Ramdas had fired a shot at Pappu. Pappu was brought to Dholpur and got admitted in the Government Hospital. Shaukat Ali (P.W.11) came to the hospital. Pappu died in the hospital. This witness also attested the memos whereby the recoveries were effected from the spot. This witness stated that one empty cartridge blood and controlled soil were lifted. Police had prepared site plan (Exhibit-P/5), which he had attested. Blood stained soil and controlled soil were lifted vide memo Exhibit-P/6, whereas empty cartridge was lifted vide memo Exhibit-P/7. After post mortem, the police had taken clothes of the deceased into possession vide memo Exhibit-P/8. This witness had attested all the memos.

This witness (P.W.4) further deposed that three/four days after the occurrence, on the place pointed out by the accused Ramdas, police had recovered one licensed gun and one Patta containing nine live cartridges and three used cartridges. This witness also attested memo Exhibit-P/9, whereby weapon was taken into possession and memo Exhibit-P/10 whereby license was taken into possession.

Pratap Singh (P.W.5), the complainant, has reiterated as to what was stated by him in the written report (Exhibit-P/11). He testified regarding about what happened in the field and when his maternal uncle was returning from the field and further when his maternal uncle had reached near the house of accused Ramdas, Ramdas had fired as shot which hit below his left shoulder. This witness has also attested various memos.

Bhura (P.W.9) also stated in categoric terms that Ramdas had gone to the roof of his house and when his brother was returning with cows, Ramdas had fired a shot and the same hit on the chest of Pappu. Pappu due to receipt of fire arm injury fell at the spot.

Even though, we have read the testimony of other witnesses, we find that nothing hinges upon the testimony and the same is not required to be reproduced in the present judgment.

Remaining witnesses had attested the inquest proceedings, or have testified to the fact that they took the injured Pappu to the hospital. They also includes police officials who effected arrest, recovered gun and the cartridges and have deposited the same in Malkhana and subsequently to Forensic Science Laboratory, Jaipur.

Suffice it to say that Rajendra Kumar Sharma (P.W.16) being Investigating Officer in the court has proved various facets of investigation.

However, as a quick glance, we may say that Jagdish Prasad (P.W.1) and Bhondu (P.W.3) had attested the inquest proceedings, Hari Singh (P.W.2) turned hostile to the prosecution, Charan Singh (P.W.6) brother of the deceased Pappu on receipt of information had reached at the hospital, Smt. Ramsiya (P.W.7) being sister had taken the deceased Pappu to the hospital, Kishan Singh (P.W.8) Head Constable had arrested the accused, Ram Kishore (P.W.10) Constable had taken into possession sealed vial containing two pellets extracted from the body of Pappu, Kaptan Singh (P.W.13) had taken six sealed packets to Forensic Science Laboratory and Dinesh Kumar (P.W.15) Incharge of Malkhana had been examined to prove link evidence.

After the evidence of prosecution witnesses concluded the statement of accused under Section 313 Cr.P.C. was recorded and all incriminating circumstances were put to him, who denied the same and pleaded that he had not killed Pappu. His nephew had falsely lodged the FIR. His wife Shanti was alone in the house. She was raped by the deceased Pappu. He on hearing the information, left the field and reached at the house. At the spot, Bhura and Pappu both were armed with country made pistol. Bhura fired a shot, and same hit Pappu. The accused stated that he is innocent and has been falsely implicated.

Shanti (D.W.1) wife of the accused Ramdas stated that on 22.3.2007, she was present at the house. Her son Sonu aged 12/13 years was also with her. Her nephew Jitu and Ramdas were in the field. The fields are at a distance of 1/2 km. On 22.3.2007, Pappu came to her house and made an attempt to outrage her modesty. Her son Sonu started weeping, upon which Pappu slapped Sonu and thereafter, Sonu left for the fields. Then Pappu closed the doors of the house and had raped her. Ramdas, nephew Jitu and Sonu returned from the field. Pappu after committing rape with her, ran away from the spot. After sometime, Pappu and Bhura came. Bhuram was armed with country made pistol. Bhura had fired at Pappu.

Sonu (D.W.2) son of the appellant, had also corroborated the testimony of his mother Shanti (D.W.1). Jitu (D.W.3) also deposed that Sonu came and informed him and his father Ramdas that Pappu came to their house. He made an attempt to outrage the modesty of his mother Shanti, wife of the accused. Pappu had given slap to Sonu. Sonu ran towards the field. Thereafter, Pappu committed rape with Shanti. This witness further stated that Pappu was killed by Bhura (P.W.9).

We have heard Mr. Nikhlesh Katara, the learned counsel for the appellant and Mr. N.S. Dhakad, the learned Public Prosecutor.

Admittedly, the occurrence had taken place in front of the house of the accused. Three eyewitnesses, namely Dharm Singh (P.W.4), Pratap Singh (P.W.5) and Bhura (P.W.9) have stated in categoric terms that due to dispute regarding grazing of cows in the field, when the deceased, Pappu was passing in front of the house of the accused Ramdas. He had fired a shot, which hit below the left shoulder of Pappu.

Mr. Nikhlesh Katara, the learned counsel for the appellant unable to demolish the place of occurrence, very eloquently has propounded the defence version and in alternate has contended that we should convert the offence.

In the present case, no stand has been taken by the accused Ramdas that hearing his wife has been raped, under grave and sudden provocation, he had fired a shot, rather defence is that after Pappu had raped wife of Ramdas, Bhura was having country made pistol and he fired the shots and due to shot fired by Bhura, Pappu had died. The version given by the defence in no way advance the case of Ramdas, the present appellant. The accused-appellant Ramdas has not taken a stand that seeing his wife has been raped, he had fired a shot under the grave sudden provocation. We are not inclined to believe that Bhura (P.W.9) being real brother of Pappu, the deceased shall fire a shot at his brother. The prosecution has named the present appellant, Ramdas as the sole accused. It is not a case where by inflating number of accused, the appellant has been falsely implicated.

As per prosecution version, right from the beginning Ramdas is the sole accused, who had fired a shot at Pappu. Furthermore, we cannot discard the statement (Exhibit-P/15) made by Pappu under Section 161 Cr.P.C. recorded by Shaukat Ali (P.W.11) in presence of Dr. Seema Garg (P.W.12), which is to be treated as dying declaration. The statement (Exhibit-P/15) was recorded on 22.3.2007 at 7:25 PM and Pappu had died at 8:10 PM. The said dying declaration has been witnessed by the investigating officer.

The learned counsel for the appellant has further referred to the bed head ticket of Pappu (Exhibit-D/4) and certified copy of indoor ticket (Exhibit-D/5) to contend that the deceased Pappu was not in fit condition to make a statement.

We are afraid that such argument cannot be accepted at a belated stage as dying declaration was recorded in presence of Dr. Seema Garg (P.W.12), who is most independent witness.

Alternative argument regarding conversion of offence is also not tenable. The very fact that the appellant fired on the shoulder and pellets hit the chest, is itself sufficient to gather intention of the appellant to cause murder. Furthermore, neither plea of grave and sudden provocation has been raised nor is discernible from prosecution case.

Considering the testimony of eyewitnesses, dying declaration (Exhibit-P/15), we are of view that the defence has failed to cause any dent in the prosecution, as defence evidence being unreliable is to be discarded.

Taking totality of circumstances including the report of ballistic expert (Exhibit-P/26) we are of the view that there is no merit in the appeal and the same being devoid of merit is dismissed.