S.S.KOTHARI, J. - (1.) THE judgment dated 21.01.03 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Sawai Madhopur in Sessions Case No.39/02 (36/02) State v. Dinesh and another whereby the appellants have been convicted and sentenced as under is in challenge in this appeal :- Appellant No.1 Dinesh 1. For offence 302 IPC - Life imprisonment and fine of Rs. 10,000/-. In default of payment 3 months further imprisonment. 2.For offence under section 324 - One year rigorous imprisonment and fine of Rs.3,000/-. In default of payment 15 days further imprisonment. Appellant No.2 Mahesh 1. For offence under section 302/34 IPC - Life imprisonment and fine of Rs. 10,000/-. In default of payment further imprisonment of three months. 2.For offence under section 324/34 IPC - One year rigorous imprisonment and fine of Rs. 1,000/-. In default of payment further imprisonment of 15 days.
(2.) BRIEFLY stated, the facts of the case are that Mohan Lal, son of Gendaram, submitted written report Ext.P6 before Ramsharan Lal, SHO Police Station, Bonli on 28.04.2002 alleging therein that while he and his family members were sleeping in his house, Dinesh and Mahesh, sons of Gopal, came to the residence of Teacher Hemraj at about 11.00 p.m. in the night and started banging on the doors, that on hearing the noise, Hemraj and his brother, Shanker, woke up and when Hemraj opened (he door, they pulled him outside, where Mahesh caught hold of him, and Dinesh inflicted knife blows on the stomach and chest of Hemraj, and that when Prithviraj came out of his house, he was also caught hold of by Mahesh, and Dinesh tried to inflict a knife blow on his stomach, but Prithviraj managed to avoid it, as a result he received the knife blow on his left forearm, that other villagers also reached the spot, at which the accused persons ran away towards their houses, and that later on Gopal also reached there with other persons of the village. On the receipt of the above report, FIR No.60/02 for offences under sections 302, 307 and 341.P.C. was registered and investigation commenced. During the investigation, the police arrested the appellants and recorded their statements under section 27 Evidence Act leading to recovery of Lathi and Knife from them. The police also got injury and postmortem report Ext.P5 of deceased Hemraj and injury report of Prithviraj Ext.P4 prepared from the concerned Medical Officers. The police also recorded the statements of eye witnesses and other witnesses. Site plan was prepared and the sample of soil, knife recovered from accused Dinesh and clothes of the deceased were sent for chemical examination. On conclusion of the investigation, report under section 173 Cr.P.C. was submitted in the court of the Judicial Magistrate, Bonli who committed the appellants for standing trial before the Court of the Sessions, Sawai Madhopur. The case was transferred by the learned Sessions Judge, Sawai Madhopur for trial to the learned Special Judge Schedule Caste / Schedule Tribe (Prevention of Atrocities) Cases, Sawai Madhopur. Charges were framed against the appellants and they pleaded not guilty. The prosecution produced 20 witnesses and documents Ext.Pl to P33. The statements of the appellants, under section 313 Cr.P.C. were recorded. They did not produce any witness in defence but documents Ext.D1 to D14 were exhibited. After hearing the parties, the learned Trial Court convicted the appellants as detailed above. We have heard the learned Senior Advocate of the appellants as well as the Public Prosecutor carefully at great length and gone through the record of the case thoroughly. Learned Senior Counsel for the appellant has submitted that there are many contradictions in the statements of the prosecution witnesses; the witnesses have made improvements in their statements; the appellant, Mahesh has not caused any injury to anybody and the recovery witnesses of knife and lathi have not supported recovery and no blood stains were found on the spot, hence, the appellants are entitled for acquittal. The learned Public Prosecutor has opposed the above submissions. We have considered the above submissions carefully. We were taken through the statements of the eye witnesses namely, Mohan Lal PW5, Kamla PW6, Ravindra PW7, Shanker PW8, Prithviraj PW9 and Ramdayal PW14, but we find that there are no material contradictions in their statements so as to make them unreliable. A close scrutiny of the statements of the above witnesses shows that they have not improved their version from the one given by them in their statements recorded u/S.161 Cr.P.C. So far as the contention relates to the statements of Purshottam PW16 and Prahlad PW17, witnesses of recovery, is concerned, it will suffice to mention that though they have been declared hostile, yet they have admitted their signatures on seizure memo Ext.P19 and P20. The Investigating Officer Ram Sharan Lal PW12 has proved the above recovery memos which were prepared by him in pursuance of the information given to the Police u/S.27 of Indian Evidence Act in Ext.P31 and P32. A perusal of the recovery memos Ext.Pl9 and P20 coupled with the report of FSL Ext.P33 proves that human blood was found on the knife recovered from the accused, Dinesh, soil taken from the spot and clothes of the deceased, Hemraj. Learned trial court has considered the evidence of the prosecution in detail as is clear from its judgment and we do not find any reason to disagree with its assessment. In the alternative learned Senior Counsel of the appellants has submitted that as the brother of the appellants, Kamlesh, was murdered by Ram Khiladi, they went in search of him to the house of Hemraj. They had no intention of murdering or causing injuries to Hemraj, but due to sudden provocation they lost self control. Hence, their action will amount only to culpable homicide and their case falls within Exception 1 of Section 3001.P.C. He has vehemently argued that the learned Trial Court has illegally convicted the appellants for offence under section 302 I.P.C. He has relied on the cases of Gurdip Singh and another v. State of Punjab AIR 1987 Supreme Court 1151; Arvind Kumar v. State of Uttar Pradesh 1988 Supreme Court Cases (Cri.) 132; Takhaji Hiraji v. Thakore Kubersing Chamansingh and others AIR 2001 Supreme Court 2328; Krishna Tiwari and another v. State of Bihar JT 2001 (3) SC 331: AIR 2001 SC 2410.
(3.) THE learned Public Prosecutor has submitted that the prosecution has by cogent evidence established that the appellants committed murder of Hemraj. We have considered the aforesaid submissions carefully. In order to correctly appreciate the above contention, it is necessary to examine the evidence produced in the case. The story of the prosecution, as revealed in written report Ext.P6, is that the appellants banged on the door of Hemraj and when he opened the door, they pulled him out. The appellant Mahesh caught hold of him and the appellant Dinesh inflicted knife blows on his stomach and chest. Mohan Lal, PW5, has given eye witness account of the incident. According to him Mahesh and Dinesh banged upon the door of the house of Hemraj and, when Hemraj opened the door, Mahesh caught hold of him. Dinesh inflicted knife blows in his stomach and chest. He has also stated that Prithviraj came there and tried to intervene, but a knife injury was caused in his left hand. He has also given the names of other persons who were present there and who saw the incident. Smt. Kamla PW6, the wife of the deceased, has also stated that knife injuries were inflicted in the stomach and chest of her husband. Ravindra PW7, the minor son of the deceased, has stated that knife injuries in chest and stomach of his father were caused by the appellants. Shanker PW8 has also supported the above version. Prithviraj PW9 has stated that when he tried to save Hemraj, Dinesh tried to inflict knife blow on his stomach but as he tried to save himself, the knife injury was caused in his left elbow. All the aforesaid witnesses were cross-examined on behalf of the appellants but their statements could not be shattered. The aforesaid ocular evidence of the prosecution is supported by medical evidence. Dr. Ram Phool Meena PW4 has proved injury report of Prithviraj Ext.P4 and postmortem report of Hemraj Ext.P5. A perusal of Ext.P5 shows that Hemraj had following injuries:- "Wounds & Injs. (1) Incised wounds 10 x 5 cm e whole thickness of chest below the Rt. neeple e redness. Including rupture of peritoneal cavity and diaphragm Involving Antera superior lobe Rt side of liver. Liver having Incised wound 3 x 1/2 x 2 1/2 cm. depth, Rt. lateral & Peritoneal cavity having excessive collection of dark red blood beneath the liver and lungs. (2) Incised wound 2 x 1 x 2/3rd thickness of abd. wall on the Ant and lower part of abd left side." Dr. Ram Phool Meena PW4 has given following opinion about the cause of death of Hemraj: "After having Postmortem exam. In our opinion the cause of death is due to syncope resulting from excessive loss of blood from liver." ;