Poonma Ram and Others vs State of Rajasthan

B.R. Arora, J.—This appeal is directed against the judgment dated 26-8-93, passed by the Additional Sessions Judge, Barmer, by which the learned Additional Sessions Judge convicted the accused-appellants for the offences under Sections 147 and 304 Part II, I.P.C. and sentenced each of them to undergo one year''s rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo two months'' simple imprisonment for the offence u/s 147 I.P.C. and seven years'' rigorous imprisonment and a fine of Rs. 1000/- each and in default of payment of fine further to undergo three months'' simple imprisonment for the offence u/s 304 Part II, I.P.C. Both the sentences were directed to run concurrently.

The appellants were tried by the learned Additional Sessions Judge, Barmer, for the offences under Sections 147, 302 and 302 read with Section 149 I.P.C. The case of the prosecution, in nut shell, is that on 15-5-92, at about 5.00 p.m., Paru Ram and his daughter Kehri were going to fetch water from the well of Swamiji. When they reached near the well and were at a distance of about fifty-sixty Paundas, accused Poonma Ram and his four sons, viz., Bhura Ram, Ridmal Ram, Pata Ram and Gokla Ram, armed with Lathis, came there and started beating Paru Ram. Dharma, Likhma and Gehru, who were present there, requested the accused not to kill Paru Ram but the accused did not acceed to their request and continued to beat Paru Ram. Paru Ram succumbed to the injuries. The accused took his deadbody to a Khejri tree and left it there. Thereafter they took away the Pakhal, two pitchers, Randu and Charsi. The prosecution, in support of its case examined twelve witnesses. The accused, in their defence, examined one witness. The learned Additional Sessions Judge, after trial, by his judgment dated 26-8-93, acquitted the accused of the offences u/s 302 and 302/149 I.P.C. but convicted and sentenced them for the offences under Sections 147 and 304 Part II, I.P.C, as stated at the very out-set. It is against this judgment dated 26-8-93, convicting and sentencing the appellants that they have preferred this appeal.

It is contended by the learned Counsel for the appellants that the witnesses produced by the prosecution are not reliable and they are merely the chance witnesses. They have not seen the occurrence and the learned trial Court, therefore, committed an error in placing reliance over the statements of these witnesses. It has, also, been contended by the learned Counsel for the appellants that the alleged recoveries also, do not connect the accused-appellants with the crime as they cannot be said to have been made on the information and at the instance of the appellants and further-more, the recoveries have been made from an open place accessible to all and even the result of the F.S.L. Examination has not been placed on record and, therefore, the recoveries of the articles, also, are of no assistance to the prosecution. Lastly, it is contended by the leanred counsel for the appellants that even if the prosecution case is taken to be true still the case of the prosecution does not travel beyond Section 325 I.P.C. The learned public Prosecutor, on the other hand, has supported the judgment passed by the learned lower Court.

4.1 have considered the submissions made by the learned Counsel for the parties.

The learned lower Court convicted the accused-appellants on the basis of the statements of the four eye witnesses, viz., PW3 Lakhma, PW 6 Smt. Gairo, PW 7 Kehri and PW 8 Dharma, which, according to the learned trial Court, stood corroborated from the evidence of PW 4 Dr. M.M. Purohit. The learned trial Court, also, placed reliance on the alleged recoveries made on the basis of the information and at the instance of the accused-appellants.

The nature of the evidence, produced by the prosecution, consists of the statements of four eye witnesses, viz., PW 3 Lakhma, PW 6 Gehru, PW 7 Kehri and PW 8 Dharma, which is sought to be corroborated by the evidence of PW 1 Kheta Ram -the son of deceased Paru Ram, PW 2 Dhanno and PW 5 Bhagji - the two Motbir witnesses, in whose presence all the five accused were arrested, the recoveries of the various articles were made on the information and at the instance of the accused; PW 6 Dr. M.M. Purohit, who conducted the post-mortem on the deadbody of Paru Ram and PW 9 Prema Ram, F.C., who took the sealed packets for F.S.L examination first to the Office of the Superintendent of Police and thereafter to the State Forensic Science Laboratory, Jaipur and handed-over the same at the Laboratory; PW 10 Shyam Lal, who was the Constable in the Crime Branch of the Office of the Superintendent of Office, who received the packets from Prema Ram and after entering the same in the record with the forwarding letter to the F.S.L Jaipur, again handed-over the packets to Prema Ram, who deposited the same in the Laboratory; PW 11 Bhoor Singh, who was the Head Constable, Incharge, Malkhana, Police Station, Sadar, Barmer, with whom the three packets in sealed conditions were deposited by the Investigating Officer and who, out of the three packets, gave two packets to grema Ram for taking the same to the Laboratory and PW 12 Hasam Khan, who investigated the matter and presented the challan.

The prosecution case, thus, rests upon the statements of the four eye witnesses and the recoveries of the articles made from the accused.

PW 3 Lakhma Ram has stated that about four-five months before, at about 5.00 p.m., he, alongwith his grand-mother Smt. Gehri, was at some distance from Swamiji''s well and they heard the screms. When they reached near the place of the occurrence, they saw the accused beating Paru Ram. Dharma and Kehri Alias Kesri were, also, present there. Kehri was raising alarm and after sometime, she went towards her house. He, Gehri and Dharma requested the accused not to give beatings to Paru Ram but accused Poonma Ram asked them not to proceed further. Thereafter all the five accused took-away Paru Ram towards the Khejri tree. He, thereafter, informed Nathu Singh about the incident and went to his house. Faru Ram succumbed to the injuries. In the cross-examination, this witness has stated that in the evening he went to his Dhani and there he heard that Paru Ram had died. He has, also, stated that Bhura, Pata and Gokla dragged Paru Ram towards the Khejri tree as Paru Ram was not in a position to walk. Paru Ram did not raise any alarm. He, also, did not raise any alarm, of course, his grand-mother raised alarm once but he stepped her, also. He, also, admitted in the cross-examination that nobody raised any alarm and only Dharma was there and none else was present there. He, also, admitted in the cross-examination that he, alongwith his grand-mother, immediately left the place of the occurrence and did not return to the place of the occurrence thereafter. He has, also, stated that at that time certain other persons were, also, present at the well and they, also, reached at the place of the occurrence. He has, also, admitted in the cross-examination that he and his grand-mother had seen the accused from some distance and at that time only minor injuries were inflicted by the accused to Paru Ram and he cannot say how much injuries were inflicted by the accused. He has, also, admitted that before he could see the incident, Kehri had left the place of the occurrence. This witness neither raised any alarm nor he tried to rescue Paru Ram. After the incident, he left the place of the occurrence and did not inform the incident to any person in the village nor collected any person for rescuing Paru Ram. It is, of course, true that different persons re-act differently in different situation and no hard and fast rule can be laid down as to their behaviour but the conduct of this witness in neither raising any alarm to attract other persons nor taking any steps after the incident like taking the injured to the hospital or not informing any other persons, raise a doubt about the presence of this witness at the place of the occurrence. His Dhani is situated at a distance of about three kilometres from the place of the occurrence and he had no purpose, at that time, to come to that place. He neither came to fetch water nor had he any object to come there and he is merely a chance witness and, therefore, his presence at the scene of the occurrence becomes doubtful in view of his conduct at the time of the incident and even thereafter. This witness, though alleges to have seen the occurrence and his name finds mention in the F.I.R., also, but his statement u/s 161 Cr.P.C. was recorded by the police after three days of the occurrence though he was present in the village through-out and the police had come on the next date of the incident and inspected the site, prepared various Memos and recorded the statements of the witnesses. If this witness would have seen the occurrence then his statement would have been recorded immediately. The evidence of this witness was wrongly believed by the trial Court. The conduct of this witness, at the time of the occurrence and thereafter, makes the presence of this witness doubtful.

The next eye witness of the occurrence is PW 6 Smt. Gehri - the grand-mother of PW 3 Lakhma. She, in her statement before the court, has stated that bout five months before, at about 5.00 p.m., she and Lakhma were going to Swamiji''s well for fetching water. Accused Poonma, Bhura, Ridmal, Patta and Gokla were giving beatings to Paru Ram. Dharma Ram, also, came there. Kehri was, also, present there though at the time when the beating started, Kehri left the place of the occurrence. All the five accused, after giving beatings to Paru Ram, dragged him to the Khejri tree. After the ''Maarpeet'' was over, Kehri, alongwith her brother, came there. Thereafter Baghji came. Paru Ram succumbed to injuries. In the cross-examination, this witness has stated that the accused dragged Paru Ram to the Khejri tree as he was not in a position to walk: She has, also, stated that there was a dust-storm and, therefore, she was not in a position to see anything and when she went to take water, neither she heard any voice of screaming nor any alarm and she did not see the ''Maarpeet''. She had merely seen the deadbody of Paru Ram. She had seen all the five accused dragging the deadbody of Paru Ram and did not see any incident. When this witness has admitted in the cross-examination that she had not seen the accused inflicting injuries and neither she heard any scream or the alarm nor was she in a position to see due to dust-storm then in the light of her admission, the learned trial Court was not justified in treating this witness as an eye witness and placing reliance over her statement. The pitchers which they are alleged carring, were not found at the place of the incident. Even after the incident, she did not fetch water from the well. Her Dhani is situated at a distance of three Kilometres from the place of the occurrence and she was, therefore, only a chance witness and had not seen the incident as has been admitted by her. No reliance can be placed on the statement of this witness in convicting and sentencing the appellants.

The next eye witness is PW 8 Dharma. He has stated that about five months before, he had gone to Swamiji''s well to graze his she-goats. He heard the cries and when he proceeded towards the place wherefrom the cries were coming, he saw the accused-appellants inflicting injuries to Paru Ram by Lathis. When he reached the place of the occurrence. Gehru, Lakhu and Kehri were, also, present there. He requested accused Poonma Ram not to give beatings to Paru Ram but the accused warned him to keep himself at a distance otherwise he would be done to death. Thereafter Kehri went to the village and called her brother. Paru Ram succumbed to the injuries. The accused, thereafter, put Paru Ram under the Khejri tree. This witness left the place and informed Nathu and Baghji. In the cross-examination, he has admitted that his Dhani is situated at a distance of three kilometres from the place of the occurrence but he had come to the place of the incident to graze his she-goats. He was coming from Swamiji''s well and in the way he heard the screams. He was, at that time, on the way which leads to Gomani. He has, also, admitted that on the day of the incident there was a dust-storm and he could not see the incident for sometime on account of it. He guessed that the cries were coming from the side of Swamiji''s well and, therefore, he went towards that well and saw the accused. He heard the cries from a distance of about sixty-seventy Paundas. He has, also, admitted that after the incident he left the place of the occurrence and went towards his house and did not see the accused dragging the deceased towards the Khejri tree. According to him, he has, also, not seen the accused hanging the deadbody of Paru Ram with the Khejri tree. He has, also, admitted that after the incident was over he went to his house and did not return to the place of the occurrence. He has, also, admitted that he did not raise any alarm nor he tried to rescue nor he take care of Paru Ram after the incident was over. This witness is a chance witness. His Dhani is situated at a distance of three kilometres from the place of the occurrence. He has stated that he came from the village to graze his she-goats. The incident took-place in the evening at about 5.00 p.m. At that time, normally the she-goats are taken to the house for milking and not taken for grazing. The conduct of this witness in not taking any steps to save Paru Ram and not raising any alarm and leaving the place of the incident and further not informing any person about the incident, raise a suspicion on the presence of this witness. The statement of this witness was not recorded u/s 161 Cr.P.C. and his statement, for the first time, was recorded u/s 164 Cr.P.C. after about fifteen days of the occurrence. All these raise a suspicion regarding the presence of this witness at the scene of the occurrence. This witness was, therefore, wrongly believed by the learned trial Court. His presence at the scene of the occurrence was most doubtful. The evidence of this witness, therefore, does not inspire confidence.

The last eye witness to the incident is PW 7 Kehri - the daughter of deceased Paru Ram. She has stated that she, alongwith her father Paru Ram, had gone to fetch water from Swamiji''s well. When they reached near the Seda of Poonma Ram and Dharma, all the five accused, who were armed with Lathis, came there and started beating her father Paru Ram. When the accused were giving beatings to Paru Ram, at that time Gehru, Likhma and Dharma, also, came there. After their coming at the place of the occurrence, she left the place of the occurrence and went to her house to call her brother. When she returned she saw the deadbody of her father lying there and all the accused were standing there. Thereafter all the five accused took the deadbody of her father under a Khejri tree. The accused murdered her father on account of previous enmity. In the cross-examination, she has stated that her brother Kheta Ram had gone to jungle to bring fire-wood and returned to the house in the night and when she and her brother Kheta Ram reached the place of the incident, the accused were there and Dhunki, pitcher, Pakhal etc. were, also, lying there. The accused were, also, present there, who left the place of the occurrence after taking the articles aforesaid. Dharma, Gehru and Likhma remained present at the place of the occurrence in the night and she left the place of the occurrence. Dharma, Likhma and Gehru did not state that they remained present at the place of the occurrence. As per their statements, they left the place of the incident even before Kehri along with Khete Ram came at the place of the occurrence. A lengthy cross-examination was conducted with this witness but nothing could be elicited from her which could discredit her testimony. Her accompanying her father for fetching water is most natural. Her conduct at the time of the incident and immediately thereafter is, also, most natural. As soon as the accused started beatings to Paru Ram, she left the place of the occurrence and ran towards her village to call her brother to rescue her father and her leaving the place of the occurrence is, therefore, most natural. This witness is, therefore, a reliable witness and had seen the occurrence. The learned trial Court was, therefore, justified in placing reliance over the statement of this witness.

Thus, there remains the evidence of only one eye witness, i.e., PW 7 Kehri, which is corroborated by the medical evidence of PW 4 Dr. M.M. Purohit, who conducted the autopsy on the deadbody of Paru Ram and found eleven injuries on his person. The learned trial Court, while convicting the accused-appellants, placed reliance on various recoveries made on the information and at the instance of the accused. The alleged recoveries, which were made on the information and at the instance of the accused are that of Charas, Bharat, Pakhal and the ear-rings (Laung) of Paru Ram. The recoveries of these articles as well as the other articles were alleged to be made from the house of the accused on the information given by them u/s 27 of the Evidence Act or at their instance. Admittedly, the accused left their Dhani and the police raided their Dhani on the next date of the incident. As per the prosecution witnesses themselves, the family members of the accused, also, left the Dhani and their Dhani was not inhabitated and every body-had left the Dhani. PW 1 Kheta had specifically stated that the accused''s huts were barren. His statement read as under:--

^^eqfYteku ds QSlys lc lwus Fks**

PW 2 Dharma -- a Motbir witness -- has stated that next day the police came and searched the Dhani of the accused but did not find any person there. The family members of the accused, also, left the Dhani and returned to the Dhani only after the accused were arrested. His statements reads as under:

^^nwljs fnu tc iqfyl vk;h rc iqfyl us eqfYteku dh Bk.kh dh ryk''kh yh A iqfyl ds ml fnu ryk''kh esa dqN ugh feyk A Bk.kh ls yqaxkbZ Vkoj Hkkx x;s A dksbZ Hkh yqaxkbZ Vkoj ugha Fks A Bk.kh lwuh gks x;h Fkh A ml fnu Bk.kh esa ls dqN ugha feyk A**

When the accused had already left the Dhani and none of their family members was in the dhani, the Dhani was un-locked and the police searched the Dhani but could not recover anything from the Dhani then how, when the accused were arrested, these articles were found in the Dhani? The circumstances so suggest that all these articles were planted after the accused or their family members left the Dhani. Even some of the articles were recovered from behind a temple in an open place. These recoveries, therefore, cannot be said to have been made on the information and at the instance of the accused. These recoveries, therefore, neither inspire confidence nor they connect the accused-appellants with the crime.

Even the report of the F.S.L. examination has not been produced by the prosecution. These recoveries, also, therefore, does not inspire confidence and they cannot be read against the accused-appellants. The learned lower Court committed an error in placing reliance over these recoveries and convicting the accused-appellants on the basis of such recoveries.

The learned lower Court believed the incident but was of the view that the accused had no intention to kill Paru Ram and the totality of the established facts and circumstances showed to him that the accused caused the injuries to Paru Ram which could not be imputed with the intention or knowledge to cause death of Paru Ram. He, therefore, rightly acquitted the accused of the offence u/s 302 or 302/35 I.P.C. In the absence of any positive proof that the appellants caused the injuries with an intention to cause such injuries which were likely to cause death in the ordinary course of nature, neither Clause I nor Clause III of Section 300 I.P.C. is attracted in this case and the appellants have been rightly convicted for the offence u/s 304 Part II, I.P.C.

The accused-appellants were the members of an unlawful assembly, used the violence and inflicted injuries to deceased Paru Ram with Lathis, which stand proved from the statement of PW 7 Kehri. The appellants were, therefore, rightly convicted for the offence u/s 147 I.P.C.

The next question, which requires consideration in the present case, is: what would be the adequate sentence which should be passed against the appellants? So far as the sentence u/s 147 I.P.C. is concerned, the substantive sentence does not require any interference but the sentence of fine is reduced to Rs. 100/- and in default of payment of fine the appellants shall further undergo fifteen days rigorous imprisonment for this offence. So far as the sentence, passed by the learned trial Court for the offence u/s 304 Part II, I.P.C. is concerned, that appears to be somewhat excessive, which, I think it proper, to reduce from seven years'' rigorous imprisonment to four years'' rigorous imprisonment and the sentence of fine is, also, reduced from Rs. 1000/- to Rs. 200/- and in default of payment of fine, the appellants shall further undergo one month''s rigorous imprisonment.

In the result, the appeal, filed by the accused-appellants is partly allowed. The conviction of the accused for the offences u/s 147 and 304 Part II, I.P.C. is maintained. While maintaining the substantive sentence passed by the learned trial Court for the offence u/s 147 I.P.C, the sentence of fine for this offence is reduced to Rs. 100/- and in default of payment of fine the appellants shall further undergo fifteen days'' rigorous imprisonment. The substantive sentence for the offence u/s 304 Part II, I.P.C. is reduced from seven years'' rigorous imprisonment to four years'' rigorous imprisonment and the sentence of fine is, also, reduced from Rs. 1000/- to Rs. 200/- and in default of payment of fine the appellants shall further undergo one month''s rigorous imprisonment for the offence u/s 304 Part II, I.P.C. The period of imprisonment undergone by the appellants during investigation, enquiry and trial shall be set-off against the term of the sentence awarded to the appellants for the aforesaid offences.