Bhinva Ram vs State of Rajasthan

The Appeal is dismissed in terms of the signed order.

None appeared for the State of Rajasthan. Heard learned Counsel for the Appellant-accused. Accused Bhinva Ram son of Dasu Ram was charged for an offence punishable under Sections 302, 323 and 325 Indian Penal Code. Upon trial, vide its judgment dated 06th September, 2001, the trial Court convicted the accused of all the offences and awarded him sentence for life imprisonment u/s 302, one year simple imprisonment u/s 323 Indian Penal Code and three years rigorous imprisonment u/s 325 Indian Penal Code. All the sentences were directed to run concurrently. It was further directed to pay a fine of Rs. 1000/- u/s 302, in default, to further undergo one year rigorous imprisonment, Rs. 400/- u/s 323 Indian Penal Code, in default, to further undergo one month simple imprisonment and Rs. 1000/-under Section 325 Indian Penal Code, in default to further undergo six months rigorous imprisonment.

Correctness of this judgment was questioned by the accused before the High Court, which vide its judgment dated 11th August, 2004 upheld the findings recorded of guilt as well as award of sentence by the trial Court. This has resulted in filing of the present appeal through jail. Learned Counsel appearing for the Appellant has, primarily, contended/raised the following submissions:

(i) Statement of PW10 u/s 161 Code of Criminal Procedure was never recorded by the police, thus, he could not be a prosecution witness in the court. In any case, the statement of the said witness as an eye witness cannot be relied upon;

(ii) Allegedly the injuries inflicted upon the body of the deceased do not satisfy the ingredients of Section 302 Indian Penal Code, as there was no intention to kill on the part of the Appellant. In any case, it lacks motive. He has relied upon the medical evidence of the doctor as stated in paragraph 13 of the High Court judgment.

We do not find any merit in either of these contentions. Firstly, they are based upon misreading of the record. It is only an argument (referred to para 28 of the impugned judgment) raised before us as well as before the High Court that statement of PW10 Sukharam was never recorded u/s 161 Code of Criminal Procedure This argument was rightly rejected by the High Court and we see no reason to interfere with the said finding as it is clear from the record that the first investigating officer Sandeep Sharma, PW14 did not record the statement of PW10 Sukharam but the investigating officer who took over the investigation at a later stage PW12 Tara Chand recorded the statement of PW10 Sukharam.

This fact is clear and is incapable of being disputed before us in view of the finding recorded in paragraph 47 to 49 of the judgment of the High Court in question. There may be some delay in recording the statement of Sukharam PW10 but that per se will not render that statement inadmissible or cast a doubt on the veracity of PW10 as an eye witness and it has rightly been believed by the trial Court as well as the High Court.

Coming to the second submission of the learned Counsel for the Appellant, para 13 of the judgment deals with the injuries described upon the medical examination of the deceased while Dr. O.P. Saini, PW15 had conducted the post mortem upon the dead body of the deceased and as many as ten injuries were found on the person of the deceased. The injuries described by the doctor included injuries which had been caused by a sharp weapon. There were wounds resulting from cuts, and the said wounds had been stitched by the doctors prior to post mortem. In this regard particular reference can be made to injury Nos. 1 and 4. There was an injury caused on the neck of the deceased. According to PW15, the cause of death of the deceased was coma, due to head injury, which was sufficient to cause death in the ordinary course of nature. The cross-examination of the witnesses including of PW15 clearly shows that the defence was not able to demolish any aspect of the case of the prosecution. The cumulative effect of all the injuries was that the deceased died as a result of shock of these injuries. The medical evidence fully supports the case of the prosecution.

For the foregoing reasons, the appeal is dismissed.