- (1.) THE appellants, six in number, were indicted before learned Additional Sessions Judge (Fast Track) No. 2, Bundi in Sessions Case No. 10/2001 for having committed murder of Sukhdev. Learned trial Judge vide judgment dated September 22, 2001 convicted and sentenced the appellants as under:- U/s. 302/149 IPC To suffer Imprisonment for life and fine of Rs. 500/-, in default to further suffer three Months Imprisonment. U/s. 147 IPC To suffer One Year Rigorous Imprisonment and fine of Rs. 100/-, in default to further suffer One Month Imprisonment. U/s. 148 IPC To suffer Two Years Rigorous Imprisonment and fine of Rs. 100/-, in default to further suffer Two Months Imprisonment. All sentences were ordered to run concurrently., +
(2.) BRIEFLY stated the prosecution case is that Hemraj (PW. 6) submitted a written report to the SHO Police Station Dablana (Bundi) on August 2, 1997 with the averments that in the morning at about 7.30 AM on the said day he and his maternal uncle Sukhdev were going from Keshavpura to Bundi on cycles for selling the milk. Sukhdev was just ahead of him. On the route around 8.00 AM when they reached near Bindayka Doongri they found appellants hiding there with deadly weapons. All of them surrounded Sukhdev and started inflicting injuries by raising the voice to kill Sukhdev at the spot. Dayala inflicted gandasi-blow on the head of Sukhdev, as a result of which he fell down, then other persons inflicted injuries indiscriminately with sticks and gandasis. Ramlal also reached at the place of incident and he had witnessed the incident. The informant ran towards his village and narrated the incident to the wife of Sukhdev. Finding Sukhdev injured one Kishan took him to the hospital for treatment. Thereafter the informant also reached at the hospital in tractor trolley and on reaching there he found Sukhdev dead. On the basis of said report the Police Station Dablana registered a case under Sections 147, 148, 302 and 302/149 IPC and the investigation commenced. On completion of the investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bundi, Charges under Sections 302/149, 147 and 148 IPC were framed. The appellants denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 25 witnesses. In their explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. The case primary hinges on the sole testimony of informant Hemraj (PW. 6) which finds corroboration form the statement of Dr. Trilok Chand Mahawar (PW. 21), who performed autopsy on the dead body of Sukhdev. Then comes the evidence of Girraj Singh (PW. 24), who conducted investigation of the case and got recovered the weapons at the instance of the appellants. Mr. Kamlakar Sharma, learned counsel for the appellants, canvassed that it was virtually impossible that while Sukhdev was given beatings his near relative Hemraj stood there as silent spectator. Conduct of Hemraj was highly unnatural and his presence at the time of incident is not established. Ram Lal (PW. 10) another eye witness examined by the prosecution did not corroborate the prosecution story. The manner in which the FIR was registered creates doubt in regard to the truthfulness of the prosecution case. The prosecution has also not been able to prove the site-plan and recovery of weapons allegedly involved in the instant case. It has not been established that the appellants had formed unlawful assembly in furtherance to commit murder of Sukhdev. Reliance is placed on Anil Phunka vs. State of Assam (1), Papaliya @ Om Prakash vs. State of Raj. (2), Sukhwant Singh vs. State of Punjab (3), Surjeet Singh vs. State of Punjab (4), Deen Dayal vs. Raj Kumar @ Raju & Ors. (5), State of U.P. vs. Bhagwant & Ors. (6), Chandan Singh vs. State of Haryana (7), Suresh Chaudhary vs. State of Bihar (8), Joseph vs. State of Kerala (9), Satpal vs. State of Raj. (10), Nathya & Ors. vs. State of Raj. (11), Ramanuj vs. State of Raj. (12), Bharat Singh vs. State (13), and Sevi vs. State of Tamilnadu (14). Per contra, Mr. B.M. Sharma, learned Public Prosecutor supported the impugned judgment and canvassed that the testimony of Hemraj is consistent and could not be shattered in the cross examination. The improvements, inconsistencies and embellishments shown in the statement of Hemraj are not material. Hemraj was a boy of 18 years, therefore his conduct in leaving his cycle at the spot and rushing to the wife of deceased to inform her about the incident was quite natural. The guilt against the appellants is established and they have been rightly convicted and sentenced. With the assistance of the learned counsel, we have scrutinised the material on record. Turning to the testimony of Dr. Trilok Chand Mahavar (PW. 21) we find that the death of Sukhdev was homicidal and as per Post Mortem Report (Ex.P-29) Sukhdev sustained following injuries:- 1. Incised wound 4" x 2" x 3" on outer (Radial) side of Rt. hand. Wound become through & through all muscle and tendon are mixed in the same direction. The middle metacorpal bone of thumb cutting present also cutting of Proximal end of Ist metacorpal bone of index finger and small bone of Hand also cut along with Dislocation of wrist joint, blood stained colour present. 2. Incised wound 2, 3/4" x 1/2" x 1/2" on outer surface of Rt. hand, Muscle tendon also cut blood stained present. 3. Incised wound 1, 1/2" x 1/2" x 1/2" on the left upper third of arm. 4. Lacerated wound 1" 1/3" 1/3" on outer surface of left elbow. 5. Incised wound 5" x 1" x 1" on left lower third of forearm wound triangular shaped. 6. Incised wound 3" x 1" x 2" on fronto parietal region of scalp. Scalp bone also cut along the direction of wound and meanings also cut blood oozing present Red colour. 7. Lacerated wound 2" x 3/4" x 1/2" on the middle part of Rt. leg. 8. Lacerated wound 1/2 x 1/2 x bone deep with compound fracture tibia fibula bone on upper third of Rt. leg. 9. Lacerated wound 1" x 1/2" 1/2" on the upper third of left leg. 10. Lacerated wound 1" x 1/2" x 1/2" on the lower third of Lt. leg. 11. Fracture of middle part of left arm. 12. Fracture of Radiums and ulna bone on junction of lower and middle third part of left fore arm. The cause of death of deceased is haemorrhagic shock and injury to cerebrum.
(3.) HEMRAJ (PW. 6) in his deposition stated that Sukhdev was his maternal uncle. On the fateful day he and Sukhdev both were coming on cycles with milk-containers. At Bindayaka doongri Dayala, Bihari Lal, Hazari, Kishna, Dhanraj and Goverdhan along with Ramdev and Jawahra got themselves hiding. Ramdev was armed with axe, Hazari was having lathi whereas Dayala Jawahara, Hazari, Behari, Dhanraj and Goverdhan were having gandasis. Dayala after exhorting others to kill Sukhdev inflicted gandasi- blow on the head of Sukhdev. Bihari then inflicted blow on his rib, Goverdhan and Dhanraj gave blows with gandasi on his hands, Ramdev and Hazari gave blows again on his hands. Hazari also inflicted axe-blow and Kishna gave lathi-blow on his neck. At that time HEMRAJ was two steps away from the appellants. Ramlal also came there on cycle and saw the incident. HEMRAJ ran for his life and went straight to the village to inform about the incident to his Mami (maternal aunt) Smt. Nandu. Thereafter he along with Deva, Hardeva, Kunwara and his maternal uncles reached at the place of incident on a tractor trolley but they did not find Sukhdev there. Only on reaching hospital that they came to know about the death of Sukhdev. He then got written the report (Ex. P-1) by Raja Ram at the Hospital. Ram Lal (PW. 10) deposed that he was coming from Keshavpura on cycle and Sukhdev and Hemraj were also accompanying him. He had seen Hazara, Ramdeva and Dayala running. He did not get down from the cycle but saw them, picking the fight. Sukhdev had sustained cut injuries. He (Ramlal) put bandages on the injuries. Dayala, Hazara and Ramdeva might have possessed axe, lathi and gandasi. When Kishan arrived on motorcycle, they took Sukhdev to the hospital where Sukhdev was declared dead. The quarrel had been picked up on the way near Bindayka Doongri. Sukhdev had sustained injuries on hands and feet. Ramlal was declared hostile. The Apex Court indicated guidelines in regard to reliability of the evidence of hostile witness. In Balu Sonha Shinde vs. State of Maharashtra (15), it was observed that declaration of a witness to be hostile does not ipsofacto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance. In the case on hand as already noticed, Ram Lal was named as eye witness in the FIR and we have to analyse his testimony cautiously. ;