JUDGMENT
Khem Chand Sharma, J.
1. Above titled two criminal appeals by three accused appellants arise out of the judgment and order dated 6.3.1999 passed by the Additional Sessions Judge, Kotputali (Jaipur) convicting and sentencing the appellants in the manner stated below:
Appellants Kalu Ram
Under Section 302 IPC Life imprisonment with a fine of Rs.
500/- in default of payment of fine,
to undergo further 3 months
rigorous imprisonment
Under Section 307/149 IPC Seven years rigorous imprisonment
with a fine of Rs. 500/- in default of
payment of fine, to undergo further
3 months rigorous imprisonment
Under Section 147 IPC rigorous imprisonment for one year
Appellant Chhotu
Under Section 302/149 IPC Life imprisonment with a fine of Rs.
500/- in default of payment of fine,
to undergo further 3 months
rigorous imprisonment.
Under Section 307/149 IPC Seven years rigorous imprisonment
with a fine of Rs. 500/-, in default
thereof, to further undergo three
months rigorous imprisonment
Under Section 147 IPC Rigorous imprisonment for one
year
Appellant Ashok
Under Section 302/149 IPC Life imprisonment with a fine of Rs.
500A in default of payment of fine,
to undergo further 3 months
rigorous imprisonment
Under Section 307/149 IPC Seven years rigorous imprisonment
with a fine of Rs. 500/-, in default
thereof, to further undergo three
months rigorous imprisonment.
Under Section 147 IPC Rigorous imprisonment for one
Year
2. All the sentences were ordered to run concurrently.
3. These two appeals arise out of the same judgment in Sessions Case No. 42/96, therefore, they are being disposed of by a common judgment.
4. According to the prosecution case, PW 3 Prahlad Sahai Khatik, a resident of village Kariri lodged a report Ex. P/1 at Police Station Shahpura on 14.7.96 at 7.30 p.m. alleging therein that his elder brother Nand Kishore had a grocer stall near the temple of Ramdeoji. Some dispute with accused Kalu Ram and Raju was going on in the matter of stall. At about 5.30 p.m. all the four accused, namely, Kalu Ram, Chhotu, Raju and Ashok came at their stall and asked Nand Kishore as to why he had installed the stall. Nand Kishore, in turn, replied that it was installed at his own land. In the mean time, accused Raju threatened to teach him lesson. Thereafter, appellants Kalu Ram and Ashok caught hold of Nand Kishore, while accused Raju inflicted knife blow on the back of his brother with intent to kill him. Appellant Chhotu gave leg and fist blows. The hue and cries of complainant Prahlad and Jagdish attracted the attention of Arjun, who reached at the spot. Having seen Arjun, the accused ran away. Since the condition of injured Nand Kishore was serious, he was sent to the hospital at Shahpura for treatment in a Jeep, along with Arjun, while complainant Prahlad and Jagdish stayed there. In the mean- time, Bhagirath Mal Khatik, father of the complainant reached there and asked as to what had happened. It was then alleged by the complainant that having seen his father, accused Kalu Ram, Raju Meena, Ashok Meena and Chhotu Khatik started belabouring him. Accused Raju, Chhotu and Ashok caught hold of his father and Katu Ram Khatik inflicted knife blows on the person of his father, which resulted into his death and the dead body was lying on the spot. The complainant further alleged that the family members of the accused, namely, Prabhati, Bhima, Kailash, Madan and Gajanand had also come at the spot with an intention to assault.
5. On the basis of above report, PW 17 Sita Ram Sharma, Station House Officer of Police Station Shahpura registered a case for offence under Sections 302, 307, 323 and 147 IPC vide FIR No. 263/96 and proceeded with the investigation. In the course of investigation, he rushed to the place of incident and prepared site plan, Ex. P/2 and the Inquest report, Ex. P/3. He seized the blood stained cloths of the deceased vide Ex. P/7 and collected blood smeared and controlled soil from the place of incident vide Ex.P/6. The SHO then got conducted autopsy on the dead body by PW 13 Dr. Chan-drakant Paliwal and collected the post mortem report Ex. P12. He got the injuries of injured Nand Kishore examined and collected injury report Ex. P13. Accused Kalu Ram was arrested vide memo Ex.P.12/A. On the information, Ex.P.15 having been furnished by accused Kalu Ram, a knife was recovered at his instance vide memo Ex.P.8. Accused Chhotu Ram was arrested vide memo Ex.P.10. On completion of usual investigation, the Investigating Officer submitted a charge sheet against the accused in the court of learned Additional Chief Judicial Magistrate, Shahpura, who in turn, committed the case to the court of Sessions.
6. The learned Additional Sessions Judge, Kotputali, on the basis of evidence and material collected during investigation and placed before it, framed charges against the accused. The accused denied the charges and claimed to be tried.
7. In the course of trial, the prosecution in support of its case examined as many as 18 witnesses and exhibited some documents. Thereafter, the accused were examined under Section 313 Cr.P.C. In defence, the accused examined three witnesses.
8. At the conclusion of trial and after hearing counsel for the parties, the learned trial court found the accused appellants guilty for causing the death of Bhagirath and injuries to Nand Kishore and accordingly, convicted and sentenced them in the manner indicated above. Hence these two appeals.
9. We have heard learned counsel for the accused appellants and the learned Public Prosecutor and have minutely gone through the evidence and material on record.
10. In assailing the findings of guilt arrived at by the trial court, the first ground canvased by the learned counsel for the appellants before us was that a supplementary charge sheet was submitted against accused Raju @ Rajesh and the learned Additional Sessions Judge, Kotputali while delivering judgment in Sessions Case No. 42/96 took cognizance against accused Gajju @ Gajanand for offence under Sections 307, 302, 147 read with Section 149 IPC. Accused Raju and Gajanand both were subjected to trial in Sessions Case No. 10/99 in the court of Additional Sessions Judge, Shahpura and after conclusion of trial in the above Sessions case, the learned trial court concluded that the prosecution has not been able to bring home guilt against the accused and accordingly acquitted accused Raju and Gajanand of me offence under Sections 147, 307 and 302 read with Section 149 IPC. However, accused Raju was convicted for offence under Section 324 IPC for the knife injury caused by him on the back of injured Nand Kishore. In support of the above submission, learned counsel has placed before us a certified copy of the judgment in Sessions Case No. 10/99, which may be kept on record. In this back-ground, learned counsel contended with vehemence that conviction of appellants Ashok and Chhotu under Sections 302/149,307/149 and 147 IPC and Kalu Ram under Sections 307/149 and 147 IPC cannot be sustained in the eye of law.
11. We have considered the above argument and have perused the judgment of the court below in Sessions Case No. 10/99. We find merit in the above argument advanced by the learned counsel for the appellants. It may be stated that where five or more persons are put on their trial for rioting and some of them are acquitted, reducing the number to less than five, the latter cannot be convicted for rioting as there can be no unlawful assembly of less than five persons. Therefore, conviction of accused Ashok and Chhotu for offence under Sections 302/149, 307/149 and 147 IPC and conviction of accused Kalu Ram for offence under Sections 307/149 and 147 IPC is not sustainable in the eye of law and these three accused deserve to be acquitted of the above charges.
12. It was next contended by the learned counsel for the appellants that the report, Ex. P. 1 lodged by PW 3 Prahlad Sahay came into existence subsequently. According to the learned counsel, prior to lodging the report Ex. P. 1, PW 17 Sita Ram Sharma, SHO had already received information regarding the incident. Therefore, Ex. P.1 cannot be treated as an FIR of the incident as it would in effect be a second FIR and can be termed merely as a statement falling under Section 162 Cr.P.C.
13. We have considered the above argument- PW 17 Sita Ram Sharma, SHO in his cross examination has categoricaly stated that prior to lodging of FIR, Ex. P. 1 he received the information only to the effect that some injured was admitted in the hospital. In this view of the matter, it is crystal clear that the information received by PW 17 Sita Ram Sharma was only an information without any details of the incident and hence it cannot be termed as an FIR. While dealing with similar facts situation, the Apex Court in the case of Ramsingh Bavaji Jadeja v. State of Gujrat (1), held as under:
“From time to time, controversy has been raised, as to at what stage the investigation commences. That has to be considered and examined on the facts of each case, specially, when the information of a cognizable offence has been given on telephone. If the telephonic message is cryptic in nature and the Officer- in-charge, proceeds to the place of occurrence on the basis of that information to find out the details of the nature of the offence itself, then it cannot be said that the information, which has been received by him on telephone, shall be deemed to be First Information Report. The object and purpose of giving such telephonic message is not to lodge the First Information Report, but to request the Officer in charge of the Police station to reach the place of occurrence. On the other hand, if the information given on telephone is not cryptic and on the basis of that information, the officer in charge, is prima facie satisfied about the commission of a cognizable offence and he proceeds from the police station after recording such information, to investigate such offence then any statement made by any person in respect of the said offence including about the participants, shall be deemed to be a statement made by a person to the police officer “in the course of investigation”, covered by Section 162 of the Code. That statement cannot be treated as First Information Report. But any telephonic information about commission of a cognizable offence irrespective of the nature and details to such information cannot be treated as First information Report. This can be illustrated. In a busy market place, a murder, is committed. Any person in the market including one of the shop owners, telephones to the nearest police station, informing the officer in charge, about the murder, without knowing the details of the murder, the accused or the victim. On the basis of that information, the officer in charge reaches the place where the offence is alleged to have been committed. Can it be said that before leaving the police station, he has recorded the First Information Report? In some cases the information given may be that a person has been shot at or stabbed. It cannot be said that in such a situation, the moment the officer in charge leaves the police station, the investigation has commenced. In normal course, he has first to find out the person who can give the details of the offence, before such officer is expected to collect the evidence in respect of the said offence”.
14. The Apex Court has reiterated the same legal position in a recent case in T.T. Antony v. State of Kerala and Ors. (2), with Damodaran P. and Ors. v. State of Kerala and Ors. (3), and in State of Kerla and Ors. v. Revada Chandrasekhar and Ors. (4), and held that apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer incharge of a police station is the first information report.
15. In the case at hand, as stated above, the only information that was received by the Station House Officer was that some injured was admitted in the hospital and therefore, in view of the legal position propounded by the Apex Court in the cases referred to above it cannot be said that the information received by the Station House Officer was an FIR of the incident. Thus, the second argument being devoid of merits stands rejected.
16. The third argument advanced by the learned counsel for the appellant was that the learned trial Judge has fallen into error in relying upon the evidence of PW 3 Prahlad, PW 14 Jagdish and PW 15 Sheru treating them to be the witnesses of incident. Learned counsel argued that these 3 witnesses are not the eye witnesses of the incident in which Bhagirath sustained fatal injury. Their conduct is highly unnatural, inasmuch as none of them tried to come forward to save the life of the deceased. According to the learned counsel, the testimony of these three so-called eye witnesses cannot be relied upon as they being related and partison witnesses. In support of his argument, learned counsel for the appellants have relied upon Davinder v. Ramdutta and Anr. (5), Nain Singh and Anr. v. State of U.P. (6), and Deenu @ Deen Mohammed & six Ors. v. State of Rajasthan (7).
17. We have given our thoughtful consideration to the above argument and have gone through the case laws cited at the bar. PW 3 Prahlad and PW 15 Sheru in their cross examination have categorically stated that they tried to save Bhagirath but the accused persons did not allow any body to come near Bhagirath, therefore, despite their efforts they failed to save the life of Bhagirath. In these circumstances, we cannot say that the conduct of these two witnesses was not natural. So long as action or reaction of a witness is concerned, it depends upon individuals and individuals and different witnesses react differently in different situations. In Leela Ram v. State of Haryana and Anr. (8), their Lordships of the Supreme Court have propounded that there cannot be any set pattern or uniform rule of human re- action and to discard a piece of evidence on the ground of his reaction not fallingwith a set pattern is unproductive and pedantic exercise. Their Lordships remarked that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others runaway from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals.
18. In Harisingh M. Vasava v. State of Gujrat (9), the Apex Court, in similar circumstances, held as under:
“Merely because PW 2 did not intervene at the time when the appellant was inflicting knife blows on the person of the deceased cannot be ground to discard his testimony. Only because the eye witness fails to intervene to save the deceased, cannot be made a ground to reject his testimony particularly when he is not asked as to what retrained or refrained him from intervening and saving the deceased. In the instant case, the nature of injuries inflicted on the person of the deceased and the weapon of offence he was having in his hand, is indicative of the state of mind of PW 2 which obviously prevented him from intervening.
19. Similar view has been expressed by the Apex Court in Kannusami v. State of Tamil Nadu (10). Reference is made to the observations in para 7 of the judgment:
“At the first blush we felt that Ms. Mohana had a strong point on the first aspect of absence of blood on the clothes but the details of evidence showed that neither PW 1 nor PW 2 moved forward to catch hold of their son. Ms. Mohana contained that the above is not a natural conduct of any parent when seeing their son in such a situation. True, in such a situation some parents might fall on the injured son. But to say that such a conduct should necessarily have been exhibited by all the parents as a natural conduct, is not a correct proposition. What is first pattern of natural conduct in a situation like this. It is equally possible that the parents who saw their son being butchered by cutting the neck would have become startled, benumbed and dumb founded. Their mobility would have been very much impaired and hence they would not have moved forward to hold their son. We cannot rule out the above possibility and therefore we cannot now say that the conduct of the parents was not natural”.
20. Thus keeping in view the above analogy, we are of the firm opinion that in the case at hand the statements of above named two witnesses cannot be discarded on the ground of their reaction not falling with a set pattern.
21. Learned counsel for the appellants have strenuously contended that in the particular facts and circumstances of the case, it was not open to the learned trial Judge to rely upon the testimony of PW 3 Prahlad, and PW 14 Jagdish so as to convict the appellants for the murder of Bhagirath as none of the these witnesses had witnessed the incident. It is contended that as per the prosecution version, injured Nand Kishore was taken to the hospital in the Jeep of one Ummed Ram Meena, but he was not cited in the calendar of witnesses. According to the learned counsel, Ummed Meena who took injured Nand Kishore to the hospital at Shahpura was examined on behalf of defence as DW 3. He has categorically deposed that he had taken injured Nand Kishore to the Hospital at Shahpura in his Jeep No. RJ 14-1C 1699 and at that time PW 3 Prahlad, PW 5 Arjun and PW 14 Jagdish had accompanied him to the hospital. Therefore, PWs 3 and 14 cannot be termed to be the witnesses of the incident. It was further argued that the prosecution has failed to examine any independent witness despite the independent witness present at the scene and had witnessed the incident.
22. We have given our anxious consideration to the above argument and scanned the relevant evidence. PW 3 Prahlad, author of the FIR has stated in his cross examination that Arjun (PW 5) had taken Nand Kishore to the hospital in a Jeep. The owner of said Jeep was Ummed Ram Meena. He further stated that he had straight away left for the Police Station after about 1-1.30 hours of the incident. The information as to his brother getting injured had already been received at the police station before he reached there. PW 4 Nand Kishore injured himself has stated in his examination in chief that Prahlad and Arjun caught hold of him and put him in a Jeep. He further stated that Prahlad stayed at the place of incident. Similarly, PW 5 Arunj has categorically deposed that he had taken Nand Kishore to the Hospital in the jeep owned by Ummed Ram Meena. He further clarified that he alone had taken Nand Kishore to the Hospital and Prahlad and Jagdish did not accompany him. PW 14 Jagdish has deposed in his examination in chief that Arjun (PW 5) had brought Nand Kishore to Shahpura. In cross examination this witness has specifically stated that he had not visited Shahpura Hospital alongwith injured Nand Kishore. According to this witness, he was not aware as to who was the owner of the jeep, in which Nand Kishore was taken to the hospital. PW 15 Sheru, who happens to be son of injured Nand Kishore has deposed that Arjun arrived at the scene of occurrence and took his father in a vehicle to Shahpura.
23. From the evidence discussed above, it stands proved that it was PW 5 Arjun alone who took injured Nand Kishore to the Hospital at Shahpura for treatment and PW 3 Prahlad and PW 14 Jagdish remained present at the place of incident and witnessed the incident that happened with deceased Bhagirath. The presence of PWs 3 and 14 at the place of incident and their witnessing the incident happened with Bhagirath further finds support from the FIR. A glance at the FIR, which is the first version of the prosecution case, makes it abdundantly clear that it was PW 5 Arjun alone who took injured Nand Kishore to the Hospital at Shahpura. The FIR was lodged by PW 3 Prahlad Sahay; son of the deceased. It also bears the signature of PW 14 Jagdish. It would be profitable to quote the relevant portion appearing in the FIR so as to make it more clear that PW 3 Prahlad and PW 14 Jagdish had witnessed the incident and PW 5 Arjun alone had taken injured Nand Kishore to the Hospital at Shahpura:
“MERE BHAI NAND KISHORE KI HALAT SERIOUS HONE KE KARAN EK JEEP LAKAR MERE BHAI ARJUN KE SATH SHAHPURA KE LIVE ILAJ HETU BHEJ DIYA. MEIN VA JAGDISH VAHIN PER RAH GAVE”
24. Apart from what has been stated above, the basic foundation of argument of learned counsel for the appellants becomes unfounded not only from the evidence of prosecution witnesses discussed above but from the cross examination of DW 3 Ummed Ram himself, inasmuch as Ummeda Ram has deposed in his cross examination that he cannot say about the presence of Jagdish, Arjun and Prahald at the place and time of incident of inflicting knife blows on the person of deceased Bhagirath. The witness further stated that he cannot say whether these witnesses had seen the accused inflicting knife blows on the person of deceased.
25. It may also be noted that at the first instance the incident of causing injuries to Nand Kishore took place at about 5.30 PM on 14.7.1996. Immediately after Nand Kishore was removed to hospital, deceased Bhagirath arrived at the place of incident and asked as to what has happened. In the mean-time the accused opened attack on Bhagirath, who scummed to injuries on the spot. It seems that all happened within a short span of an hour and the report of the incident was lodged without any lose of time i.e., at 7.30 PM at Police Station Shahpura which is at a distance of about 27 klmtrs. from the place of incident. Thus, lodging the FIR at 7.30 PM on 14.7.96 is indicative of the fact that Arjun PW 5 alone had taken injured Nand Kishore to the Hospital and witnesses Prahald and Jagdish were very much present at the time and place of incident and both of them are the eye witnesses of the incident which happened with Bhagirath, deceased.
26. In this view of the matter, the above argument of the counsel for the appellants as regards failure on the part of the trial court in relying upon the testimony of PW 3 Prahlad, and PW 14 Jagdish so as to convict the appellants for the murder of Bhagirath, as none of the them had witnessed the incident, has no legs to stands and is accordingly rejected.
27. We shall now deal with the contention regarding interestedness of the witnesses for furthering prosecution version. According to the learned counsel for the appellants, PW 3 Prahlad, PW 5 Arjun are the sons of deceased Bhagirath while PW 15 Sheru is the grand son of deceased Bhagirath and were, therefore, highly interested witnesses and their statements must be discarded. Undisputedly, the above referred 3 witnesses are close relations of deceased Bhagirath. However, in our considered view, relationship is not a factor to affect credibility of a witness. The ground urged by the counsel for the appellants that the above named witnesses being close relatives of the deceased and consequently being a partisan witness should not be relied upon, in our view, has no merit. Recently in Gangadhar Behera v. State of Orissa (11), their Lordships of the Supreme Court have observed that relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. The Apex Court further observed:
“We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon has no substance. This theory was repelled by this court as early as in Dalip Singh case (AIR 1953 SC 364) in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:
“We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this court endeavoured to dispel in Rameshwar v. State of Rajasthan (AIR 1952 SC 54). We find, however, that it unfortunately still persists, if not in the judgment of the courts, at any rate in the argument of the counsel.”
28. In State of Rajasthan v. Hanuman (12), their Lordships have observed in para 7 of the judgment that “The position is well settled that evidence of eyewitnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism.”
29. Again in Kartik Malhar v. State of Bihar (13), their Lordships of the Supreme Court observed as under:
“As to the contention raised on behalf of the appellant that the witness was the widow of the deceased and was, therefore, highly interested and her statement be discarded, we may observe that a close relative who is a natural witness cannot be regarded as an interested witness. The term ‘interested’ postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason”.
30. Coming to the argument of the learned counsel for the appellants that non-examination of independent witnesses is fatal to the prosecution case, we may observe that since the evidence of eye witnesses examined in the case has been found to be trustworthy and worth being relied on, the non examination of yet another witness would not cause any dent or infirmity in the prosecution case because had the another witness been examined, he would have repeated the same story as has already been narrated by other reliable witnesses.
31. In the case at hand, there is no evidence to suggest that any independent witness was present at the place and had witnessed the incident. PW 14 Jagdish an eye witness of the incident admits that the place of incident is a cross road (Chauraha) and about 400-500 inhabitants are residing nearby. The witness further admits that at the time of incident some village persons were present there, but they escaped from the scene as soon as the incident started. According to this witness, there is one shop nearby the place of incident and the customers used to sit on that shop. PW 15 Sheru has deposed that at the time of incident none of the residents of the village came on the spot. PW 17 Sita Ram Sharma, SHO admits that inhabitants are residing in the locality near the place of incident. It appears that no question was put to the Investigating Officer (PW 17) suggesting the name of the persons who were present at the time and place of incident. In Gopi Nath @ Jhallar v. State of U.P. (14), their Lordships of the Supreme Court while dealing with similarly situation observed that “apart from this aspect of the matter, when the Investigation Officer (PW 6) was in the box nothing appears to have been said or even suggested to him about non- examination of the owner of the shop”.
32. Even for the sake of argument, if it is admitted that some persons were present at the time of incident, mere non- examination of so called independent eye witnesses would not cause any infirmity in the prosecution case as the testimony of the witnesses examined on behalf of the prosecution is trust worthy.
33. Reference in this regard may be made to a decision of the Apex Court in Babu Ram and Anr. v. State of U.P. and Ors. (15), wherein their Lordships have observed as under:
“. . . It is settled law that non-examination of an eye witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of the eye witnesses examined in the case if found to be trustworthy and worth being relied on so as to form safe basis for recording a finding of guilt of the accused persons then non-examination of yet another witness who would have merely prepeated the same story as has already been narrated by other reliable witnesses would not cause any dent or informity in the prosecution case.”
34. Thus, from the evidence discussed above it becomes clear that neither it is proved that some independent persons had also witnessed the incident nor any suggestion was put to the investigating officer that some named persons were present at the time of incident. For the reasons therefore, the argument of the learned counsel has no substance and stands rejected.
35. Lastly, it has been contended by the counsel for the appellants that recovery of knife alleged to be used in the commission of offence is doubtful and therefore, the entire prosecution case should be disbelieved. It is contended that one of the Motbir PW 7 Sayar Singh has not supported the recovery of knife and another Motbir PW 6 Surajbhan has not deposed a single word regarding recovery of knife in his presence.
36. We have given our anxious consideration to the above argument. It is true that motbirs of recovery have not supported the recovery of knife. However, PW 17 Sita Ram Sharma, Investigating Officer has categorically deposed that accused appellant Kalu gave information (Ex.P.15) for recovery of knife and persuant to his information knife was recovered from his possession vide memo Ex.P.8. In this view of the matter, there appears to be no reason to disbelieve the testimony of PW 17 Sita Ram Sharma. Even if for the sake of argument it is admitted that recovery of knife is doubtful, then too merely on this ground the entire prosecution case cannot be disbelieved. In Sewaka alias Ramsewak v. State of M.P. and Anr. (16), their Lordships of the Supreme Court have held:
“. .Be that as it may, in view of apparent and irreconcilable contradiction between the testimony of the investigating officer and Attar Singh we are not inclined to believe that the appellant was arrested and the seized Katta recovered from his possession in the manner as alleged by the prosecution. However, disbelieving the recovery of Katta does not cause any dent in the prosecution case which, we find agreeing with the High Court, is amply made out from the testimony of the eye witnesses. Gangashri corroborated by other evidence as stated hereinabove”.
37. Again in Krishna Mochi and Ors. v. State of Bihar (17), one of the Hon’ble Judges of the Supreme Court observed as under:
“In my view recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, moreso when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found by me to be unimpeachable.”
38. In Gurjant Singh v. State of Punjab (18), their Lordships of the Apex Court have observed as under:
” . .It is well settled that from the mere non-recovery of the weapone alone the case against the accused concerned cannot be held to be not substantiated when there is otherwise positive, convincing and credible ocular evidence to prove the presence of the said accused and his participation in the crime, as in this case corroborated also by medical so far as the appellant is concerned”.
39. In the case at hand, as stated above, the only fact that recovery of knife has not been proved by the prosecution cannot be said to be fatal to the prosecution case, as the case against accused appellant Kalu Ram cannot be held to be not substantiated because the prosecution has been able to lead otherwise positive, convicting and credible ocular evidence, which has proved beyond doubt the presence of appellant Kalu Ram and his participation in the commission of crime, duly supported by medical evidence.
40. Having gone through the judgment under appeal it appears that the trial court has not relied upon the statements of PW 1 Shivpal and PW 2 Ishwar considering them to be the chance witnesses, whose names also do not appear in the FIR, Ex.P 1. We have also considered the evidence of these two witnesses and in our considered view the reasons assigned by the trial judge for discarding the evidence of PWs 1 and 2 cannot be said to be erroneous. The other eye witnesses of the incident, namely, PW 4 Nand Kishore injured, PW 3 Prahlad, PW 5 Arjun, PW 14 Jagdish and PW 15 Sheru have categorically deposed that on the day of incident at about 5-6 PM accused Raju inflicted knife blows on the bank of Nand Kishore. Thereafter, Arjun accompanied Nand Kishore and brought him to the hospital at Shahpura. PW 3 Prahlad, PW 14 Jagdish and PW 15 Sheru have further deposed that after 4-5 minutes of causing injuries to Nand Kishore, deceased Bhagirath arrived at the scene of occurrence. Immediately on his arrival, accused appellant Kalu Ram and others came out from the house of Kalu Ram and Kalu Ram inflicted knife blows on the chest of Bhagirath. As a consequence of chest injury, Bhagirath fell down and died at the spot. PW 6 Dr. Chandrakant Paliwal who conducted autopsy on the dead body, found following injuries:
1. Breuise on left chest wall 10 cm x 5 cm
2. Incised wound 3 cm x 2 cm placed oblique vertically and depth extending up to right lung and heart on right side of chest at 3rd and 4th Intercostal space.
3. Punctured wound 1 cm x 1 cm present at right verticle with large blood clot.
4. Right lung functured and pale.
41. The above referred witnesses were subjected to lengthy cross examination and nothing could be elicited from them so as to cast any doubt on the genesis of the prosecution case or to doubt credibility of the evidence of eye witnesses. In our view, the evidence of above referred eye witnesses stands fully corroborated by medical evidence. That apart, the report of the incident was lodged promptly without lose of any time so as to rule out the possibility of concoction of false implication of the accused, the learned trial judge was correct in holding appellant Kalu Ram responsible for causing death of Bhagirath.
42. Learned counsel for the accused appellants have alternatively contended that in the facts and circumstances of the case, there was no premeditation and the incident took place with deceased Bhagirath all of a sudden and at the spur of moment. It is submitted that a single injury by knife blow was caused to the deceased and there was no further repetition of blows. In this background it is contended that in a single injury case, accused appellant Kalu Ram could not have been convicted under Section 302 IPC.
43. We would first discuss the case laws on the point in question. The Apex Court while dealing with a case of single injury in Jagrup Singh v. State of Haryana (19), observed that there is no justification for the assertion that giving of a solitary blows on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304 Part II of the Code. Their Lordships further observed that if a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause death of the victim. The whole thing depends upon the intention to cause death, and the case may be covered by either Clause Firstly or Clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.
44. The Apex Court again had an opportunity to examine the issue in the case of State of Karnataka v. Vedanayagam (20), and observed that it is fallacious to contend that wherever there is a single injury only a case of culpable homicide is made out, irrespective of other circumstances.
45. It is thus well settled proposition of law that in a single injury case also accused can be convicted under Section 302 IPC, if from the prosecution evidence it is provided that intention is to cause death or to cause a particular injury which is sufficient in the ordinary course of nature to cause death. We shall now examine the relevant evidence to find out the intention of the accused to cause death in the light of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death of deceased. PW 3 Prahaid has stated that on 14.7.96 at about 5-6 PM, the accused duly armed with knife, farshi and lathis came at the spot, pulled out Nand Kishore who was sitting at his stall (Thadi) and struck him with knife at his back. Thereafter, the accused left the place and entered in the house of Kalu Ram, appellant. He further stated that after about 5 minutes of the incident, deceased Bhagirath arrived at the scene. Having seen deceased Bhagirath at the place of incident, the accused came out of Kalu’s house. The witness stated that appellant Kalu inflicted a knife blow on the chest of his father, while other three accused had caught hold of his father. Soon after infliction of knife blow, his father fell down and succumbed to the injury. PW 14 Jagdish, another eye witness of the incident has fully supported the statement of PW 3 Prahlad. He has categorically deposed that the accused first caused injuries to Nand Kishore. After Nand Kishore was taken to the Hospital at Shahpura, deceased Bhagirath came to the spot. Soon after Bhagirath arrived at the scene, accused appellant Kalu inflicted a knife blow on his chest, as a result thereof Bhagirath fell down and died on the spot. PW 15 Sheru, grant son of the deceased is also an eye witness of the incident. He has also supported the statements of PW 3 Prahlad and PW 14 Jagdish. A look at the site plan, Ex.P.2 makes it clear that the house of accused appellants Kalu and Chhotu is situated just near the place of incident.
46. From the evidence of PW 3 Prahlad, PW 14 Jagdish and PW 15 Sheru it is established that the accused appellants, at about 5.30 PM on the day of incident came at the place of occurrence duly armed with weapons and first caused knife blows on the back of injured Nand Kishore, son of the deceased. After causing injuries to Nand Kishore, the accused appellants entered in the house of appellant Kalu Ram, which is situated just near near the place of incident. Soon the accused appellants saw Bhagirath at the place of occurrence, they came there and appellant Kalu Ram inflicted knife blow on the chest of the deceased which pierced through the heart, causing his death on the spot. The amount of force the accused employed can be visualized by the fact that deceased Bhagirath sustained incised wound 3cm x 2cm placed oblique vertically and the depth extending upto right lung and heart on right side of chest at 3rd and 4th intercostal space. The scope of Clause Thirdly of Section 300 IPC had been subject matter of decisions of the Apex Court in Virsa Singh v. State of Punjab (21), and on analysing clause thirdly, it was held in the case as under:
“First, it must establish, quite objectively, that a bodily injury is present;
Secondly, nature of the injury must be proved; these are purely objective investigations,
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender”.
As to how the intention is to be inferred even in a case of single injury, it was further held as under:-
“The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicated it, the only possible inference is that he intended to inflict it. Whether he know of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or it inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question”.
47. Reference may also be made to a decision of their Lordships of the Supreme Court in Mahesh Balmiki v. State of M.P. (22), wherein their Lordships of the Apex Court have held as under:
“Adverting to the contention of a single blow, it may be pointed out that there is no principle that in cases of a single blow Section 302 IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some other cases under Section 326 IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him”.
48. If we consider the present case in the light of the observations of the Apex Court quoted above, we are of the firm opinion that in the facts and circumstances of the present case, it stands established beyond any shadow of doubt that accused Kalu Ram inflicted knife injury on the vital part i.e. chest piercing heart of the deceased. The injuries cannot be said to be either accidental or unintentional. Once the existence of injuries on the person of deceased is proved, the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. There is no evidence or circumstances to draw some other conclusion except that the appellant Kalu intended to inflict injuries resulting in death of the deceased.
49. It may further be observed that the incident with regard to Bhagirath was an off-shoot of the incident with regard to injured Nand Kishore being a consequence of latter incident and the offences had been committed in the course of one transaction. When PW 5 Arjun left the place of incident accompanying injured Nand Kishore to the Hospital at Shahpura, as stated above accused appellants Kalu and others went inside the house of Kalu, but as soon as Bhagirath came at the place of incident just after 4-5 minutes of previous incident Kalu and others came out from the house and without any rhyme or reason appellant Kalu inflicted knife blow on the chest of Bhagirath, which proved fatal. The scenario in which appellant Kalu Ram has been stated by the eye witnesses to have given one blow on deceased Bhagirath, it cannot be said that fatal injury was inflicted without premeditation. From the totality of the circumstances, the only inference that can be drawn by us is that appellant Kalu Ram caused bodily injury with an intention to cause death. Whether appellant Kalu Ram repeated the knife blow is of no consequence. He inflicted such injury at the vital part of the body which was sufficient in the ordinary course of nature to cause death. As regards the argument of the learned counsel for the appellants that appellant Kalu Ram inflicted a single blow and he did not repeat the blow any further, suffice it to say that the only blow struck by accused Kalu Ram was with such a force, which proved fatal and the deceased deceased fell on the earth immediately after he was struck on his chest with knife and therefore, accused appellant Kalu Ram had no occasion to repeat the blow.
50. We have also gone through the cases laws cited by the counsel for the appellants. Much emphasis was led on a decision of the Apex Court in Hem Raj v. State (Delhi Administration) (23), wherein it was held as under:
“The question is whether the appellant could be said to have caused that particular injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without pre-meditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury, but he could be impugned with the knowledge that he was likely to … an injury ….. death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will be attracted.”
51. The facts involved in the present case are entirely different that those involved in the case referred to above. In the case at hand, there was some dispute between the parties. The accused, as stated above went to the place of incident and, in the first instance, caused injuries to Nand Kishore and then left the place and went inside the house of appellant Kalu which was situated near the place of incident. After a few while, having seen the deceased, accused came out of the house and appellant Kalu Ram struck blow on the chest of Bhagirath with sufficient force, which pierced through the heart, resulting into his death instantaneously. Therefore, it cannot be said that the incident happened unexpectedly in a sudden quarrel and without pre- meditation. In this view of the matter, the authority cited by the counsel for the appellants is of no help to the appellants.
52. In Jagtar Singh v. State of Punjab (24), their Lordships of the Apex Court considering the evidence on record did not find premeditation or malice or intention to cause that particular injury which proved fatal and accordingly held that conviction under Section 302 IPC was not proper. In the case at hand, as stated above, the facts being totally distinguished with those involved in the case cited before us, the appellants cannot take advantage of it.
53. In the totality of the circumstances, it cannot be said that the occurrence had happened unexpectedly in a sudden quarrel and without pre-meditation. The accused came on the spot and in the first instance caused injuries to Nand Kishore and entered into the house of appellant Kalu Ram. After about 4-5 minutes of this incident, having seen Bhagirath the accused again came on the spot and appellant Kalu Ram inflicted knife blow on the chest of deceased with intention to cause death or with intention to cause that particular fatal injury. The prosecution has been able to prove beyond doubt that appellant Kalu Ram caused fatal injury to deceased Bhagirath. Therefore, it must be held that the occurrence had happened in a well calculated manner with pre- meditation, during course of which appellant Kalu Ram caused a solitary injury, which proved fatal and Bhagirath lost his life on the spot. The judgment of the trial court as regards conviction of appellant under Section 302 IPC simplicitor and the sentence awarded thereunder calls for no interference.
54. Resultantly, these appeals are partly allowed. While maintaining conviction of accused appellant Kalu Ram for offence under Section 302 IPC and the sentence awarded to him thereunder, other appellants Chhotu and Ashok are acquitted of the offences charged with. Appellant Kalu Ram is also acquitted of the remaining charges. Accused appellants Chhotu and Ashok are in jail. They be set at liberty if not required in any other case.