1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
J U D G M E N T
Vinod Kumar vs. State of Rajasthan
(1)DBCriminal Appeal No.589/2003
Pahar Singh vs. State of Rajasthan
(2)DBCriminal Appeal No.549/2003
Against the judgment dated
1.5.2003 passed by Additional
Sessions Judge (Fast Track),
Churu in Sessions Case No.31/2002
(22/2002).
Date of Judgment :: 26th February, 2010
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE C.M.TOTLA
Mr. Mridul Jain]
Mr. DL Rawla ] for the appellants.
Mr. KR Bishnoi, PP, for the State.
Mr. MK Garg, for the complainant.
....
BY THE COURT : (PER HON'BLE MATHUR,J.)
These two appeals are preferred to challenge
the judgment and order dated 1.5.2003 passed by
learned Additional Sessions Judge (Fast Track), Churu
2
convicting the accused appellants for the offence
punishable under Section 302/34 IPC. The trial court
after recording the conviction aforesaid, sentenced
the appellants to undergo rigorous imprisonment for
life term with a fine of Rs.500/- and in default to
payment of the same further to undergo three months’
simple imprisonment.
As per the prosecution, on 13.6.2002 at
11:30 PM, the Station House Officer of Police Station
Kotwali, Churu recorded ‘parcha bayan’ (Ex.P/12) of
Shri Noratmal son of Ramlal stating therein that at
about 10:00 PM of the same day when he alongwith
Salim, resident of Rajaldesar was sitting at the
stairs of Shyam Hall, Vinod son of Surajbhan Brahman
and Paharia son of Dungar Bhaat came with knives and
then Vinod put him down and gave a knife blow on his
chest. Paharia gave a knife blow at the thigh of his
left leg. A knife blow was again given by Vinod at his
back. On gathering of nearby persons, including the
cinema employees, the assailants ran away from the
spot. Noratmal further stated that Vinod quarreled
with him two days earlier too on the issue of his
coming to the colony and only for that reason he and
Paharia assaulted him with an intention to kill. As
per the statement of Noratmal, after some time his
maternal uncle Vinod etc. came to the spot and brought
him to the hospital.
3
On basis of the statements aforesaid, a case
was lodged for commission of offences under Sections
307, 324 IPC and regular investigation was initiated.
On 14.6.2002 Noratmal was referred to Sawai Maan Singh
Hospital, Jaipur for further treatment but in transit
he succumbed to the injuries, therefore, investigation
was made for the offences punishable under Section
302/34 IPC.
After regular investigation, charge sheet
was filed and charges were framed for commission of
offences under Sections 302 and 302/34 IPC. On denial
of the same, trial was conducted and during the course
of trial ten witnesses were examined in support of the
prosecution and 29 documents were exhibited. The
accused persons were also put forth for examination as
per provisions of Section 313 Cr.P.C., wherein they
denied entire case of the prosecution and they also
produced two documents in defence.
Learned trial court, while relying upon
witnesses PW-6 Asharam; PW-9 Goruram; PW-7 Vinod; PW-
10 Fariyad Khan, the Investigating Officer, and also
the prosecution documents, convicted the accused
appellants. While challenging the same, it is
contended by Shri Mridul Jain, learned counsel for
appellant Vinod that two eye witnesses viz. PW-6
Asharam and PW-9 Goruram are not at all eye witnesses
and they were introduced with the prosecution case as
4
an after thought. Learned counsel specifically pointed
out that in ‘parcha bayan’ Ex.P/12, Noratmal nowhere
referred presence of Asharam and Goruram though both
the persons were known to him. It is further pointed
out that Goruram in his statements in quite specific
terms stated that Asharam was accompanying him while
carrying Noratmal to the hospital, whereas PW-6
Asharam stated that Noratmal was taken to the
hospital, whereas by Vinod and Goruram only. It is
also urged that Noratmal in ‘parcha bayan’ Ex.P/12
stated about presence of Salim with him but
prosecution failed to produce him in evidence and as
such entire story is concocted one with support of PW-
6 Asharam and PW-9 Goruram who happen to be the
persons belonging to the caste of deceased Noratmal.
The next argument advanced by counsel for
the appellants is that the recovery of knives on basis
of disclosure statements is not at all in accordance
with law. It is urged that Ex.P/24 is the report
relating to disclosure statements made by accused
Vinod Kumar as per provisions of Section 27 of the
Indian Evidence Act, wherein he has said that “व च क
मन अपन मक न र ह यश क मन गट स द ख ल ह त ह ब ई त फ बन क ठ
म” क न म” पड प$ न कपड% क न च छ’प क ह$आ ह, ज म चलक बत
द* ग ।” As per counsel for the appellants the information
said to be given is ambiguous as it nowhere mentions
about the incident in that the knife concern was said
5
to be used. Same is the position with the disclosure
statement made by accused Pahar Singh under Ex.P/22.
While challenging the worth of the evidence relating
to recovery of weapon, it is also stated that as a
matter of fact the knife was not even marked at the
time of recovery as that is apparent from Ex.P/10 and
Ex.P/16, but as per Ex.P/9-A while sending them for
forensic examination to the Forensic Science
Laboratory, those were shown to be marked and, that
creates doubt about bonafides of the prosecution, as
such the court should not have relied upon recovery of
these articles. It is also urged that Ex.P/19 i.e. the
letter dated 13.6.2002 seeking necessary information
regarding fitness of Noratmal for getting his
statement recorded which also bears a note of the
doctor about fitness of Noratmal to give statement,
was not a part of charge sheet and that was placed on
record first time on 21.1.2003. Being submitted at a
later stage, it was not possible for the defence to
cross examine the doctor in this regard and as such
the trial court erroneously considered the contents of
the document Ex.P/20 dated 14.6.2002. At last and in
alternative, learned counsel for the appellants urged
that no motive is shown by the prosecution for
assaulting deceased Noratmal by the accused persons
and the intention to kill him is also conspicuously
absent, therefore, even by accepting prosecution
story, case against the appellants does not travel
beyond an offence under Section 304 part-II IPC.
6
While supporting the conviction recorded and
the sentence awarded, learned Public Prosecutor
pointed out that PW-9 Goruram and PW-6 Asharam in
quite unambiguous terms narrated the entire incident
and no reason is available to disbelieve their
testimony. As per learned Public Prosecutor the
grievous injuries given by the accused persons at the
vital parts of the body of deceased Noratmal clearly
establishes that the accused persons were intending to
give such blows those may cause death.
Considered the arguments advanced by learned
counsels and also examined the record.
As per the ‘parcha bayan’ Ex.P/12, Noratmal
stated that Vinod gave him a knife blow at first
instance on his chest and then at his back and in the
meanwhile one knife blow was given at the thigh of his
left leg by accused Paharia. At the time of incident
as per the Ex.P/12 Salim was with Noratmal and
subsequently his maternal uncle Vinod etc. came and
brought him to hospital. The term used “etc.” in
Ex.P/12 is quite important. Learned counsel for the
appellants during the course of arguments, much
emphasised on the fact that Noratmal in his ‘parcha
bayan’ Ex.P/12 nowhere referred presence of Asharam
and Goruram though they were known to him, thus, they
in fact were not eye witnesses of the occurrence. On
7
consideration of the entire material available on
record, we are of the view that such omission is not
much relevant in present case. As a matter of fact
Noratmal in Ex.P/12 stated that his maternal uncle
Vinod etc. came and this “etc.” includes other persons
who took him to the hospital. Expectation from a
person seriously injured as a consequent to stabbing
for giving each and every details immediately after
the incident is too high. A person suffering from such
grievous injuries at that stage could have given broad
outlines relating to the crime occurred, making the
investigating agency able to make further probe in the
matter. In the instant matter all necessary
preliminary informations to make further investigation
with the entire incident are available in Ex.P/12. As
such, non-reference of Goruram and Asharam with
‘parcha bayan’ is not material or to say enough to
demolish the prosecution case, specially looking to
the fact that the term “etc.” was used by Noratmal
while referring other persons present with his
maternal uncle Vinod.
PW-6 Asharam, in his statements, stated that
he was watching a film in Shyam Cinema and being
thirsty he came out and saw two persons assaulting one
person with knives. At that time Goruram too came.
This witness identified these two persons as Vinod and
Pahar Singh. He also stated that Noratmal was taken to
hospital in tempo by his maternal uncle and Goruram.
8
In his entire statement, there is nothing on basis of
which it can be said that he was not a person
trustworthy. True it is, that he was not having any
memory of film’s name that he was watching, but that
is of no consequence in view of the fact that after
the incident he did not choose to continue to watch
the film.
Similarly, PW-9 Goruram also stated that on
the fateful day he was standing outside the picture
hall with his tempo and was waiting for passengers and
at that time he saw Vinod Kumar and Pahar Singh
stabbing Noratmal. He also stated about presence of
Asharam at the spot and further presence of Vinod
(maternal uncle of deceased) at the spot on calling.
He also stated that he accompanied Vinod and Asharam
in carrying Noratmal to hospital. True it is, PW-6
Asharam in his statement did not stated that he also
accompanied to Vinod and Goruram while carrying
Noratmal to Hospital, but merely on that count
testimony of Goruram or Asharam cannot be disbelieved.
There is no contradiction of such a nature in
statements of both the eye witnesses that may warrant
their total ignorance in evidence.
The another argument of counsel for the
appellants that the recovery made on basis of
disclosure statements made by the accused appellant is
not reliable being having no reference of the incident
9
in which the knives recovered were used. This argument
is also of no consequence, as no explanation is
available for having human blood stains on the knife
recovered from accused Vinod. Beside this, after
holding the evidence given by eye witnesses absolutely
trustworthy, the other arguments are not at all of the
nature on basis of which the case of the prosecution
could be dismentaled, thus, certain irregularities
pointed out by counsel for the appellants deserves to
be avoided.
Now the important question that requires
consideration is that whether the trial court rightly
convicted the accused appellants for offence
punishable under Section 302 IPC?
From examination of entire evidence, we find
that the accused persons specially accused Vinod may
be having the knowledge that causing injury with knife
on chest or back may cause death, but no sufficient
evidence is available to establish that the accused
persons were having any intention to cause death or to
cause such bodily injury that may cause death. True it
is, a minor reference is given in ‘parcha bayan’
Ex.P/12 that some quarrel occurred between Vinod and
deceased Noratmal 2-3 days back, but merely on that
basis intention for killing cannot be established. The
occurrence of quarrel few days back may had been a
motive for committing the crime, but in no way an
10
inference can be drawn on that basis regarding
intention to cause death. We are of the opinion that
the case of present accused appellants in such
circumstances does not travel beyond offence provided
under Section 304 part-II IPC.
For the reasons, we dispose of instant appeals in the terms that the appeals are partly
allowed and the accused persons viz. Vinod Kumar son
of Shri Surajbhan and Pahar Singh son of Dungar Ram
Rao, are convicted under Section 304 part-II IPC
instead of Section 302 IPC. For the conviction under
the provision aforesaid they are sentenced to suffer
rigorous imprisonment of eight years with fine of
Rs.5000/- each and in default to further suffer one
month’s simple imprisonment. The impugned judgment of
learned trial court stands modified as indicated
above.
( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.