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Judgment
The instant appeal is directed against the
judgment dated 23/12/1988 passed by Additional District and
Sessions Judge, Rajsamand in Cr. Case No 13/87 by which the two
accused-appellants are convicted under Section 302 of IPC for life
imprisonment with a fine of Rs.100/- in default thereto to undergo
for four months simple imprisonment and under Section 325, the
accused appellants are convicted for two years'' rigorous
imprisonment with a fine of Rs.100/- in default thereto to undergo
four months'' simple imprisonment and under Section 323, the
accused appellants are convicted for six months simple
imprisonment and one of the co-accused Champa has been
acquitted by extending the benefit of doubt.
The contents of Ex.P.4 F.I.R. No.122/1986 reads
as under :-
"VERNACULAR MATTER OMITTED"
This F.I.R was lodged on 24/04/1986 at 9-9.30 AM as F.I.R
No.122/1986 at Police Station Delwara by complainant Laala.
While submitting final submissions, learned
counsel for the appellant has contended that there is no positive
evidence despite learned trial Court has passed an erroneous
judgment by convicting the accused persons, one of the accused
Champa has been acquitted, which falsifies entire version of the
prosecution, allegedly there was incriminating evidence against
Champalal regarding his alleged active participation in the offence,
when his guilt is not proved, then how the other co-accused could
be held responsible for the alleged offence, testimony of injured
witness is also mysterious since he has not uttered anything
regarding the injury caused to his deceased father, obviously
injured Hakma was not having amicable relations with his
deceased father and he could have been an actual culprit in
inflicting injuries upon his father, some of the witnesses of the
prosecution have turned hostile, nothing concrete is there on the
record to substantiate the offence, notwithstanding a wrong
finding has emerged, which is not tenable and sustainable, so it be
quashed and appeal be allowed.
Per contra, learned public prosecutor has
contended that case of the prosecution is based on material,
ocular, substantive and reliable evidence, injured properly
recognized and identified his brother, who was nurturing animosity
with entire family owing to property dispute, which promoted him
to execute brutal incident, in which late Jeta sustained fatal
injuries and injured Hakma suffered grievous injuries, who has
narrated actual version of the incident, which is well supported by
the medical evidence, there is no infirmity or perversity in the
impugned judgment, which is worthy to be upheld, appeal lacks
merit, so it be dismissed.
Heard both the sides and perused evidence and the
record, which emanates and establishes guilt of both the appellant-
accused, on adverting and examining upon the evidence of the
prosecution, it becomes apparent that the case of the prosecution is
based on reliable, ocular testimony, which is supported by medical
evidence alongwith other trustworthy evidence, establishing the
version of the prosecution beyond the realms of reasonable doubt.
Complainant Laala, who is none-else but actual real
brother of accused Thaku, has specifically said that he was told and
narrated by his injured brother regarding the brutal assault, which
was impinged upon by his accused brother Thaku, who came in the
odd hours of night alongwith co-accused Mangilal being his brother-
in-law and another one Champa albeit not known to him by face, but
he could further be recognized per call of his name by other co-
accused.
Injured Hakma PW.5 has also narrated the whole
story by narrating ocular say as inflicted by the accused persons, it is
worthy to be observed that Hakma has specifically said that though
Champa; was accompanying with rest of the two accused namely, his
brother Thaku and Thaku''s brother-in-law Mangilal, but he did not
inflict injury upon him and he merely remained stood there.
Testimony of this witness is very much of importance, which goes to
say:-
"VERNACULAR MATTER OMITTED"
and it has also observed by this witness that his
accused brother Thaku was not having good relations with his father
since a "discontent" was there in his mind owing to the land and it
has also been said by this witness in his cross-examination:-
"VERNACULAR MATTER OMITTED"
PW.3 Laala complainant and real brother of
accused Thaku, as well as, brother of injured Hakma has also
narrated that:-
"VERNACULAR MATTER OMITTED"
he has also narrated in his cross-examination that when he reached
there, position of Hakma was serious and he was not able to utter
much, so he could speak only for two minutes with Hakma, then
Hakma became unconscious.
Testimony of two of the witnesses, namely PW.10
Ganesh Lal and PW.1 Bhera is also of vital significance since Bhera
has candidly said that PW.10 "Ganesh Lal" had seen all the three
accused persons in the night near the spot in the Village in odd hours
and witness Ganesh Lal PW.10 spotted them and querried them.
PW.1 Bhera has said that:-
"VERNACULAR MATTER OMITTED"
and PW.10 Ganesh Lal, while saying about witnessing all the three
accused persons near the place of incident, in the village in odd
hours and has specifically said that :-
"VERNACULAR MATTER OMITTED"
PW.11 Dr.K.L. Porwal is a doctor cum radiologist
and while ratifying Ex.P.17, 19 and 20 he has explicitly confirmed
the injuries and nature thereof and has said that :-
"VERNACULAR MATTER OMITTED"
in his cross-examination, he has also observed that
on falling upon hard stones, the kind of fracture may not result,
likewise this, Dr. N.S. Kothari PW.6, who conducted postmortem
on the body of the deceased has opined that "the cause of death
of deceased was asphyxia and breakage of hyoid bone
associated with other bodily injuries", he has also said that
deceased would have been died soon after breakage of the neck
bone, describing the injuries found on the body of the deceased, he
has further narrated that he found following injuries on the body of
the deceased :-
"1. Lacerated wound measuring 3"x3/4" x deep to into bone on front right leg just 8" below from right knee vertical in direction. 2. Incised wound measuring 3/4"x1/2"x deep to bone on front of right leg just 1 1/4" above from injury No.1 vertical in direction. 3. Incised wound measuring 3/8"x1/4"x deep to bone just 2 1/4" above from injury No.2 on front of right leg vertical in direction. 4. Lacerated wound measuring 1 1/2"x 3/4"x deep to bone on front side of left leg just 7 1/2" below from left leg. Vertical in direction. 5. Lacerated wound measuring 1 1/2"x 3/4"x deep to bone on front of left leg just above the injury No.4 vertical in direction. Injury No.4 and 5 seems to be Incised wound but wounds widened due to fracture of left tibia and looks like lacerated wound. 6. Incised wound measuring 7/8"x 1/2"x 3/8" just left side of injury No.5 vertical in direction on front of left leg. 7. There is complete transverse and oblique fracture of left tibia and fibula in 4-5 pieces of left leg in corresponding to injury No.4, 5 and 6. 8. An incised wound measuring 3/4"x1/8"x deep to bone on front of left leg just 8 1/4" above from base of left heel of left leg vertical in direction. 9. Bruises abrasion measuring 5/8"x1/2" on front side of left leg just 4" below from left knee oblique in direction. 10. There is complete fracture of both the arms of hyoid bone as well as cartilages of lyranex and tracheal rings, there is hoemorrhagic patches under sub cutaneous tissues around the hyoid bone".
Evidence of recovery witnesses and that of
witnesses of depositing of samples and incidental thereto has
remained properly linked, all the recovery witnesses and
Investigating Officer has also narrated the chronology and sequence
of recovery of samples and cloths of accused persons with that of the
assault weapons and the investigating Officer has also narrated and
proved "Ex.P.23 FSL report" and this aspect of the prosecution
story has also remained proven. 11. A vital corroborating evidence is "Ex.P.23 FSL
report", which apparently connects both the accused persons with
the crime since apparels of the accused persons and that of deceased
besides the recovered weapon of assault have been found tainted
with "A" group human blood.
The conclusion of Ex.P.23, which is result of the
examination, goes to show that internal Ex.1 from packet marked "A"
and internal Ex.3, 4 and 5 from "C" and internal Ex. 6 from "D",
likewise internal Ex.7 from "E" and internal Ex.8 from packet "F"
besides internal Ex.9 from "C" have been found stained with
"human blood" besides this internal Ex.1 from "A", internal
Ex.3, 4 and 5 from "C" and internal Ex.6 from "D" have been
found stained with "A" group blood, which corroborates the
story of the prosecution beyond realms of doubt.
Injured Hakma has admittedly said that accused
Champa, who has been acquitted by learned trial Court, did not
participate in the beatings and merely stood there.
In catena of judgments, Hon''ble Supreme Court has
observed that F.I.R is not a encyclopedia to describe everything.
Evidence of the prosecution as well as, the spot
map reveals that both the places where injured and his father were
sleeping were away to each other and were also not visible to each
other as well, so the testimony of the injured Hakma, which divulges
his injuries only and not of his deceased father is rather natural and
trifle contradictions, which have emerged are of insignificance and
story of the prosecution is well established.
Entirety and totality of the aforesaid deliberations
and evaluation of the evidence establishes the story of the
prosecution and it whole goes to suggest that the version of the
prosecution is based on ocular, reliable and trustworthy evidence.
Evident enough that accused Thaku was
having animosity with his father and other family members,
so he was staying away in another village with his in-laws
family and few days back to the event, he had a heated
wordly altercation with his father and brother, owing to the
property/land, therefore with such a manifest motive, he
came there alongwith his brother-in-law accused Mangi, in
the odd hours and after inflicting horrible and brutal injuries
upon his injured brother, accused persons eliminated Jeta.
They were spotted by PW.10 witness Ganeshlal, near the
premises of the victims in odd hours with deadly weapons
and were querried by PW.10 Ganeshlal, it is well established
by testimony of this witness, as well as by corroborative
testimony of PW.1 Bhera.
Case of the prosecution is well corroborated by
medical evidence altogether, there is no breakage in the link
evidence as well, as such, prosecution has established its case and
nothing is there to suggest that learned trial Court did commit any
infirmity of wrong in arriving at the conclusion impugned.
Hon''ble Supreme Court in a recent judgment in
State of Himachal Pradesh vs. Nirmala Devi, 2017(4) Scale
442 has observed that undue sympathy to impose inadequate
sentence would do more harm to the justice system to undermine
the public confidence in the efficacy of law. It is the duty of every
court to award proper sentence having regard to the nature of the
offence and the manner in which, it was executed or committed.
The court must not only keep in view the rights of the victim of
the crime but also the society at large, while considering the
imposition of appropriate punishment and in Gopal Singh v.
State of Uttarakhand, (2013) 7 SCC 545 held as under: (SCC
p. 551, para 18)
Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence.
Hon''ble Supreme Court has also observed in Abdul
Waheed vs. State of Uttar Pradesh, 2015 Supp AIR (SC) 2154
that undue sympathy will do harm to criminal justice system.
In Purushottam Dashrath Borate & Anr vs.
State of Maharastra, 2015 0 AIR (SC) 2170, Hon''ble the
Supreme Court has again observed that sentencing policy should aim
to protect the society and stamp out criminal proclivity and Court
should remain stern, where required.
In view of the aforesaid, we do not find any frailty
in the findings of learned trial Court and resolve to upheld the
same.
Consequently, appeal lacks merit and is dismissed.
Record of the lower Court be sent back promptly with a
copy of the judgment.