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CASE NO.: Appeal (crl.)  656 of 1997

PETITIONER: Hem Raj, etc.                                                    

RESPONDENT: Raja Ram & Ors.                                                  

DATE OF JUDGMENT: 22/01/2004

BENCH: K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NO. 657 OF 1997

K.G. BALAKRISHNAN, J.

       Both these appeals arise from the common Judgment passed by the High  Court of Rajasthan on 24.9.1996 in D.B. Criminal No. 353 of 1990, whereby the  acquittal of three accused persons was confirmed.  Criminal Appeal No. 656 of  1997 is filed by the de-facto complainant and the Criminal Appeal No. 657 of  1997 is by the State.

       The respondents Raja Ram, Hari Padam and Pappu @ Raj Kumar were  charged under Section 302 read with Section 114 I.P.C.  and Sections 25 & 27 of  the Indian Arms Act.  The case against these respondents is that they caused the  death of one Mota Ram son of Dana Ram at about 5.30 p.m. on 3.1.1985.   PW 1  Hem Raj, the appellant in Criminal Appeal No. 656 of 1997 preferred the First  Information statement before the Police on 3.1.1985   itself   at about 9.00 p.m.   In the F.I. Statement, he stated that he alongwith deceased Mota Ram was  proceeding to their field and Mota Ram was walking about 15-20 steps ahead of  him.  The accused respondents suddenly emerged from the neighbouring field  and accused Hari Padam shouted that enemy had come and that he had to be  finished.  Thereupon Raja Ram and Pappu @ Raj Kumar took out their pistols  and fired at Mota Ram.  On receiving the bullet injuries, Mota Ram fell on the  ground.  Immediately,   Gangajal, brother of Mota Ram and one Hans Raj came  there and all of them took the injured Mota Ram in a jeep to the hospital at Sri  Ganganagar where Mota Ram was examined by a doctor who declared him  dead.  PW 1  then  came to the Ghamudwali Police Station where he filed  the  F.I. Statement.

       The police took up the investigation and held inquest over the dead body.   Two shoes were recovered from the place of occurrence.  Blood smeared soil  was collected and an empty  "khokha" was recovered from the place of incident.   The accused Raja Ram was arrested on 13.1.1985 and at his instance, a pistol  was recovered.     Pappu @ Raj  Kumar was arrested on 14.1.1985 and another  pistol was recovered from him.     Both the pistols along with the empty  "khokha"  were sent to Forensic Science Laboratory and Exh. 21 was submitted by the  expert.

PW 4 conducted post-mortem examination of the dead body of deceased  Mota Ram.   The deceased Mota Ram had sustained four lacerated injuries and  there were injuries to so many internal organs.  The ribs were broken, the left  side diaphragm was punctured, the peretonium above the liver was lacerated  and the liver was punctured.  The Doctor opined that the death of the deceased

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Mota Ram occurred due to the injuries caused by firearms on the liver and  stomach.

       The learned Sessions Judge after elaborately considering the evidences  on record held that the prosecution succeeded in proving the guilt of the accused  and convicted Raja Ram and Pappu @ Raj Kumar for the offence under Section  302 read with Section 34 I.P.C.  Hari Padam was convicted for the offence under  Section 302 read with Section 114 I.P.C.  No separate conviction and sentence  was entered against the respondents by the Sessions Court for the offences  under the Arms Act.  The   Sessions Court  relied on  the evidence of PW 1 to  PW 3, recovery of the pistols at the instance of the accused persons and the  report given by the Forensic Science Laboratory.  The Sessions Court was of the  opinion that prosecution had clearly proved that the accused were responsible for  causing the death of Mota Ram.

       The above finding of the Sessions Court was reversed by the High Court  for the reasons recorded by the High Court in its judgment.

       We have carefully considered the Judgment of the High Court and in our  view the reasons given by the High Court to reverse the conviction and sentence  are flimsy, untenable and bordering  on  perverse appreciation of evidence.  The  High Court was of the opinion that these three eyewitnesses were related to the  deceased,  and as there was enmity between the accused persons and the  deceased Mota Ram,  had these witnesses been present at the place of  occurrence,   the   accused would  have killed them also.  Evidence of PW 1 to  PW 3 was thus completely discarded on the ground that they were related to the  deceased and were interested witnesses and they would not have been present  at the scene of occurrence.    It is true that PW 1 Hem Raj and PW 3 Gangajal  were related to the deceased.    But the presence of PW 1 at the time of  occurrence could not be doubted for any reason.   The other two witnesses came  immediately after the occurrence.   From the statement of PW 1, it is clear that  the house of the deceased Mota Ram was closeby,  and about 2 to 3 minutes  would alone be sufficient to reach the place of incident from the house; therefore,  it is quite possible that PW 2 and PW 3 must have come immediately after the  occurrence.   There is no improbability in the evidences of PW 2 and PW 3 who  deposed that they had seen the accused at the place of incident.  These three  witnesses took the injured Mota Ram to the hospital in a jeep.

       The witnesses were asked whether their clothes were stained with blood  while the injured Mota Ram was being taken to the hospital and one of the  witnesses stated that his clothes were not stained with blood.  This was taken as  a ground to doubt his evidence and to show that he was not at all present at the  place of the incident.  Deceased Mota Ram was wearing clothes when he  sustained bullet injuries.  One injury was on his stomach and the other injury was  above posterial 8th inter coastal space.  There is no case that the deceased had  profuse bleeding and even if there was bleeding, the blood may not have been  splashed to stain the clothes of PW 1 to PW 3 especially when deceased himself  was wearing clothes.  Moreover, the clothes worn by these witnesses were not  recovered by the police as it would be an irrelevant piece of evidence.  The High  Court should not have appreciated the evidence on these wrong premises.

       Another reason given by the High Court to acquit the accused is that the  F.I. Statement must not have been given at the time and place stated therein.   Two reasons have been attributed to this assumption.  PW 1 deposed that he left  the hospital at Sri Ganganagar and came to Ghamudwali Police Station and gave  the F.I. Statement at about 9.00 p.m.  This, according to the High Court is highly  improbable,  PW-1 being a close relative would not have left the dead body in the  hospital, whereas   PW-1 deposed that many other relatives had  come to the  hospital, thereafter, he left for the Police Station to give the F.I. Statement.   The  F.I. Statement reached the Court on the next day at 1.30 p.m.  This also was  adversely commented upon by the High Court.  We do not think that there was  any delay either in recording the F.I.   Statement or sending the challan to the  Court.  The absence of the name of the accused in the Inquest Report was also  adversely commented upon by High Court and it was stated that the F.I.  Statement must have been prepared thereafter.  In the Inquest Report, there is

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no specific column to mention the names of the accused and that may be the  reason that names of the accused are not mentioned and the FIR number is  not  given.   It   is  pertinent    to  note  that  neither  investigating  officer   nor the  officer who conducted the inquest was  questioned on this aspect.  

The reasons given by the High Court in reversing the conviction are not  tenable or justifiable.  This is a case where the PW 1 had given a convincing  evidence as to how the incident happened and it is proved that Raja Ram and  Pappu @ Raj Kumar used their pistols and injured Mota Ram.  It is important to  note that an empty "khokha" was recovered from the place of the incident.  The  pistol recovered from accused Pappu @ Raj Kumar and the bullet found therein  tallied with empty "Khokha" recovered from the place of occurrence. The pistol  recovered at the instance of Raja Ram was also in working condition and the  report of the forensic laboratory shows that the same was used for firing.  The  recovery of the bullet from the empty "khokha" from the place of incident was not  believed by the High Court for the reason that PW 2 did not see that such an  article was lying there on the ground at that time.   A strange way of appreciation  of evidence has been adopted by the High court and we are of the view that the  High Court flawed seriously and it caused miscarriage of justice warranting  interference by this Court.    

Keeping in mind fully that this being an appeal against acquittal, this Court  ought to be slow in reversing the same, we considered the evidence of the  witnesses and the other relevant facts of the case.  We are of the view that the  prosecution successfully proved that the accused Raja Ram and Pappu @ Raj  Kumar fired bullets at Mota Ram and caused his death.  As regards the  involvement of Hari Padam, we have serious doubts.     Exhortation made to kill  the deceased Mota Ram is attributed to him and that by itself is not a strong  evidence to prove his complicity.  He has to be given the benefit of doubt and we  accordingly do so.  Though a charge was framed against the accused persons  under Sections 25 & 27 of the Indian Arms Act, no conviction was entered  against them despite recovery of weapons from them and the proved fact that  these weapons were used for the commission of the offence.   The evidence on  record was not discussed in detail and no conviction was entered against them  for that offence.  So we do not want to express any opinion on that count.  

       In the result, accused Raja Ram and Pappu @ Raj Kumar are convicted  for the offence under Section 302 read with Section 34 I.P.C. and each of them is  sentenced to undergo imprisonment for life.  The accused Hari Padam is  acquitted of all the charges framed against him.  The accused Raja Ram and  Pappu @ Raj Kumar are directed to surrender to their bail bonds to serve out  their sentence.   On their failure to surrender within two weeks, the Additional  Sessions Court, Sri Ganganagar shall take further steps in the matter.

       The appeals are disposed of accordingly.