JUDGMENT
K.C. Sharma, J.
1. Above four criminal appeals arise out of the judgment and order dated 23.1.2001 passed by the Additional Sessions Judge No. 2, Ajmer, thereby holding the accused appellants guilty for offence under sections 302/149, 341 and 148 IPC for causing death of Manoj and accordingly convicting and sentencing the accused appellants in the manner stated below:
U/S. 302/149 IPC Life imprisonment and a fine of Rs. 5000/-
in default of payment of fine, each to
further undergo rigorous imprisonment
for one year.
U/S. 148 IPC Three years rigorous imprisonment with a fine
of Rs. 2000/- each, in default thereof, each to
further undergo simple imprisonment for one year.
U/S. 341 IPC One month's simple imprisonment with a fine
of Rs. 500/-, in default thereof, each to
further undergo simple imprisonment
for a week.
2. Since all the four appeals arise out of one and the same judgment in a Sessions Case No. 73/98, they are being decided by a common judgment.
3. According the prosecution, Parcha Bayan, Ex.P15 of PW4 Rajesh Sharma was recorded on 17.3.98 at 10.35 PM. In his Parcha Bayan, Rajesh stated that on the day of incident at 9.30 PM after taking milk at the shop of Madho Lal Mohan Lal, he along with Suraj Singh, his friends Madhu Sudan Bhati, Pawan Kumar and his brother-in-law Sushil Kumar Sharma was returning to his house. While on way, his brother Manoj met him at Naya Bazar Chopar, who told him that he was coming after parking the scooter. After some conversation, when he along with others were moving towards Ghee Mandi, his brother Manoj met him at the gate of Ghee Mandi. It was 9.45 PM. At that time, one auto rickshaw came from the side of Naya Bazar and stopped there. Accused Tarun, Sheru, Juli @ Pramod Singh, Hanuman, Dilip and Ramesh came down from the said Auto-rickshaw (bearing No. RJ 01/P-0543). All the accused persons encircled his brother Manoj and dragged and threw him in the auto-rickshaw and then started inflicting knife blows. Manoj raised an alarm and when they went near him, Manoj requested the accused not to inflict knife blows. Thereafter, Manoj with a view to save his life jumped from the auto-rickshaw. But still the accused Tarun and Sheru did not spare him and continued to stab. After Manoj fell down, the accused persons escaped from the scene in the auto-rickshaw. In the mean time, one police constable came there, with whose help he brought Manoj to the hospital. It was stated that he saw sever injuries on the buttock and thigh of Manoj. The doctor at the hospital made efforts to treat him, but Manoj succumbed to the injuries. As per parcha Bahayan of Rajesh, accused Tarun had abused and threatened to see him and his brother Manoj a day prior in the night at the Madar Gate as Manoj had refused to give him clothes on credit from his shop. Even just before the incident, accused Sheru and Tarun had threatened at 8.30 PM.
4. On the basis of aforesaid Parcha Bayan, police registered a case for offence under sections 302, 341, 147, 148 and 149 IPC vide FIR, Ex.P.40 and proceeded with the investigation. In the course of investigation, the police prepared the inquest report, Ex.P2, the site plan with its description, Ex.P.16 and seized the blood stained clothes of the deceased vide memo Ex.P.31. The negatives and photographs of the dead body are Exs.P.3 to P.13. The police also seized the blood stained and controlled pieces of road from the place of incident and prepared memo Ex.P.19.
5. Accused Dilip and Ramesh were arrested vide memos Ex.P.20, while accused Taru, Sheru Jully and Hanuman were arrested vide memos Exs.P21A and P22, 32 and 33 respectively. Auto-rickshaw No. RJ 01/P0543 was seized from the possession of accused Hanuman @ Vikram vide seizure memo Ex.P.24. Accused Ramesh, Sheru and Tarun furnished information under Section 27 of the Evidence Act as regards recovery of knives. Pursuant to their information, the police recovered three knives vide recovery memos Exs.P.26, 26 and 28, respectively. The seized items were sent to the Forensic Science Laboratory for examination. The report of FSL is Ex.P.4I.
6. PW9 Dr. R.K. Mathur conducted autopsy on the dead body and prepared the post mortem report, Ex.P.18. He found following injuries on the person of deceased :
1. Incised wound on the right middle and right ring finger on the palmer aspect measuring 2 x 0.5cm skin deep each.
2. Stitched wound 2cm in length on left thigh medially.
3. Stitched wound 3cm on left thigh laterally upper 1/2, oblique.
4. Stitched wound 3cm on left buttock, obliquely placed.
5. Stitched wound 2cm on left thigh, post lower l/3rd.
6. Stitched wound 1cm medial to injury No. 5.
7. Stitched wound on right thigh inner side upper 1/2 part, 2cm in length.
7. On dissection of wounds, the doctor noticed:
Ext. Injury No. 2 is cut open, shows an stab wound 2cm x 1cm x ? on the left thigh in middle 1/3rd situated medially obliquely placed, direction is downwards and medially going up to the depth of 5cm, cutting the muscles and the femoral artery and femoral vein staining the whole track.
On dissection of injury No. 3: there is incised wound 3cm x 1cm muscle deep on left thigh laterally, obliquely placed,
On dissection of Injury No. 4: there is incised wound 3cm on left buttock, going up to the depth of 4cm cutting the muscles @ small vessels. Direction is down word medially.
On dissection of Injury No. 5: there is stab wound 2 x m x 1cm on left thigh. Post lower l/3rd part going up to the depth of 5cm direction is downwards and medially, cutting the popliteal artery muscles and small vessels.
On dissection of Injury No. 6: Incised wound 1cm x 0.5cm skin deep only.
On dissection of Injury No. 7: there is an incised wound on right thigh innder side upper 1/2 part 2cm x 1cm x muscle deep.
8. In the opinion of doctor the cause of death of deceased Manoj was shock as a result of ante-mortem injuries to the major vessels of left thigh. The doctor further opinioned that injuries No. 2 and 5 collectively and individually were sufficient to cause death in the ordinary course of nature. All injuries were found to be antemortem in nature and were caused by sharp weapon freshly before the time of death.
9. After completion of entire formalities as to the investigation, the police submitted the Charge Sheet against the accused appellants in the court of learned Additional Chief Judicial Magistrate No. 1, Ajmer. The learned Magistrate, having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions Judge.
10. The case came to be tried by the learned Additional Sessions Judge No. 2, Ajmer. The learned trial court, on the basis of evidence and material collected during investigation and placed before it and after hearing arguments of counsel for the parties, framed charges against the appellants. The appellants denied the charged and claimed trial.
11. In the course of trial, in order to prove its case, the prosecution examined as many as 16 witnesses and got exhibited numerous documents. Thereafter, the accused appellants were examined under Section 313 Cr.P.C. In their explanation, the appellants stated the prosecution witnesses to be false. They did not examine any witnesses in their defence.
12. At the conclusion of trial, the learned trial Judge found the prosecution case, as alleged, proved and having held the appellants guilty for causing death of Manoj, convicted and sentenced the appellants in the manner stated hereinabove. Being dissatisfied with conviction, the appellants have preferred the present appeals.
13. We have heard Mr. Ravi Kasliwal, learned Advocate appearing for appellants Tarun Sharma, Juli @ Pramod and Ramesh @ Doctor, Mr. R.S. Rathore, appearing for appellant Sheru, Mr. Rajesh Kapoor appearing for Dilip Bheel and Mr. M.M. Ranjan, learned Advocate appearing for accused Hanuman and the learned Public Prosecutor. We have also gone through the impugned judgment and have minutely scanned the evidence oral as well as documentary.
14. In assailing the conviction, the main thrust of the arguments advanced by the learned counsel appearing on behalf of respective accused appellants is that the learned trial Judge has committed serious error in holding the appellants guilty only on the solitary evidence of PW4 Rajesh Kumar, brother of the deceased, considering Rajesh to be an eye witness of the incident. Referring to the statement of PW1 Mangoo Singh, Police Constable, who came to the place of incident and took injured Manoj to the hospital, learned counsel argued that PW4 Rajesh was not present at the time and place of incident, inasmuch as PW1 Mangoo Singh has categorically deposed in his statement that the alone took the injured to hospital and the relatives of Manoj were informed after he brought Manoj to the hospital. Therefore, PW4 Rajesh cannot at all be said to be an eye witness of the incident. Even the Investigating Officer has not indicated in the site plan the place where PW4 Rajesh was standing at the time of incident. That apart, learned counsel for the appellants have argued that the persons present along with PW4 Rajesh are named in the Parcha Bayan, but still none of them have supported the prosecution version. On the above strength, it was stressed that the learned trial Judge was wrong in believing the testimony of PW4 Rajesh. The conviction based on the testimony of such an untrustworthy and made up witness deserves to be set aside and the appellants are entitled to acquittal.
15. Per contra, learned Public Prosecutor while supporting the finding arrived at by the trial court has contended that the prosecution has been successful in proving guilt against the appellants beyond doubt. He argued that there was nothing on record to doubt the testimony of PW4 Rajesh. His testimony stands in corroboration with the attaining circumstances.
16. We have given our thoughtful consideration to the rival submissions. Before we advert to the merits of the respective arguments we deem it appropriate to carefully scrutinize the evidence of PW4 Rajesh.
17. PW4 Rajesh in his examination in chief has deposed that on the day of incident, at 9.30 PM, he along with Madhusudan Bhati, Suraj Singh and Sushil Kumar had gone to have milk at the shop of one Madholal. In the meantime, his brother came on a scooter, parked it and said that he will be coming back. Thereafter, he along with others turned towards Ghee Mandi. Mean-while he saw his brother coming from the gate of Ghee Mandi. At that time, a tempo No. RJ.01/P 543 stopped near his brother and accused Sheru, Juli, Hanuman, Ramesh and one Dilip (whose name was not known to him) and one Tarun were there in the tempo. Tarun and Sheru caught his brother and made him to fall in the tempo and other accused started stabbing his brother. His brother managed to come out of the tempo and fell down. Accused Tarun, Sheru and Ramesh continued to stab his brother even after he fell down. According to this witness, till they could reach there, accused persons ran away. His brother raised an alarm to save him. In the mean-time, one police constable arrived at the scene and took the injured to the hospital. The witness and others followed the injured and reached hospital.
18. In cross examination, the witness stated that two accused threw his brother in the tempo, while three were standing nearby. After his brother fell down from the tempo, three accused inflicted knife blows and others remained stayed at some distance. According to the witness first of all the constable lifted the injured. The witness and others had also reached the hospital immediately thereafter. On being asked by the constable, the witness informed him that injured was his brother. The witness explained that he did not accompany his brother in the tempo as he had to inform his family members. As regards accused Juli, the witness stated in his cross examination that accused Juli never purchased cloth from his shop either cash or on credit. The witness does not know whether he was Juli by name. As regards accused Dilip, the witness categorically stated that on the day of incident accused Dilip was not known to him either by name or by face. He further stated that Dilip was never subjected to be identified by him at any point of time. He never saw him and therefore, he was not able to state his appearance or colour. The witness clarified that he had seen accused Dilip only once in the court. As regards accused Hanuman, the witness in his cross examination has stated that since Hanuman was known to him, therefore, he had disclosed his name. He had not disclosed the where-abouts of accused Hanuman to the Police. According to the witness, accused Hanuman used to have his sitting in their area and therefore Hanuman is known to him.
19. PW4 Rajesh was cross examined at length, but nothing could be elicited so as to doubt his credibility. His testimony stands in corroboration with the evidence of PW1 Mangoo Singh Constable, PW7 Hameed Khan, Parcha Bayan, Ex.P.15, the medical evidence and the recoveries effected by the investigating agency. PW1 Mangoo Singh although has deposed that on information by a boy he rushed to the spot and found one boy lying on the road with profused bleeding and 4-5 persons were also standing nearby. With the assistance of these persons, he brought the injured in an auto- rickshaw to the hospital. He further deposed that relatives of the injured reached the hospital. In his cross examination, the witness clarified that he was not knowing the names and addresses of the persons standing nearby the injured. The relatives of the injured reached the hospital within 10-15 minutes of his arrival to the hospital. To the same effect is the statement of PW4 Rajesh, brother of the deceased. Rajesh has also deposed that he followed the auto-rickshaw in which the Constable took his injured brother to the hospital. His presence is further certified by PW7 Hamir Khan, who reached the hospital and found him present and recorded his Parcha Bayan. The incident occurred at about 9.45 PM and Parcha Bayan of Rajesh was recorded by Hamir Khan at 10.35 PM. Therefore, the presence of PW4 Rajesh at the time and place of incident stands well established. The trial court has relied upon the sole testimony of an eye witness PW4 Rajesh and the conviction of the appellants is based on the evidence of solitary eye witness, which was found to be corroborated with attaining circumstances. The trial court has thus regarded this witness as honest and truthful. After carefully analysing the evidence of PW4 Rajesh, we are also of the considered view that he is a witness of sterling worth and his testimony is worthy of credence. Now the question that emerges for our consideration is whether conviction of the appellants can be based on the testimony of solitary witness?
20. There cannot be any dispute that conviction can be based on the testimony of solitary witness. It is enough to sustain conviction on the basis of sterling testimony of a competent, honest and truthful witness. It is well settled that witnesses have to be weighed and not counted, inasmuch as quality matters more than quantity in human affairs. However, prudence requires that some corroboration should be sought from other prosecution evidence in support of the testimony of a solitary witness, particularly where such witness happens to be closely related to the deceased. Reference may be made to a decision of the Apex Court in Slate of M.P. v. Direndra Kumar (1). In this case, one Munibai was sought dead and the incident was witnessed by a solitary witness, namely, sister of deceased’s husband deposing about firing of shots by the accused at the house in which deceased was living. The trial court relying upon the testimony of PW held the accused guilty of murder. On appeal, the High Court, after reappraisal of evidence of PW1 Radhabai, did not find her testimony worthy of credence and accordingly acquitted the accused. On appeal by the State, their Lordships of the Apex Court on analysing the evidence of PW1 in the light of recovery and medical evidence, observed as under:
“PW1 was thus not a witness to have been disbelieved on the two aforesaid grounds. Her evidence finds corroboration, as already mentioned, from the findings of the autopsy surgeon. This part, her evidence that the respondent had killed Munibai by Firing has also received corroboration from the recovery of a revolver from the possession of the respondent, to which aspect we shall advert later, supplemented by ballistic expert’s report that that very revolver had been used in firing at Munibai.”
21. It is true that PW4 Rajesh, a solitary witness to the incident is a real brother of the deceased. Therefore, keeping in mind the above principles, we have to see whether his evidence finds corroboration with other incriminating circumstances. The incident happened in between 9.30 PM and 10.00 PM. His parcha bayan, Ex.P.15, which mentions the vehicle number in which the accused came on the spot, was recorded at 10.35 PM, upon which a regular FIR, Ex.P.40 was registered. Thus the possibility of there being any manipulation or concoction stands ruled out as the police was informed of the incident immediately after the incident occurred. The infliction of knife blows, thereby causing injuries on the person of deceased stands corroborated by the findings of the autopsy surgeon. This apart, his evidence that three accused stabbed his brother Manoj by knives has also received corroboration from the recovery of knives on the information and at the instance of three accused persons, which were found to be stained with blood as per the FSL report. The FSL report, Ex.P.41 indicates the presence of human blood of Group ‘B’ on the clothes of deceased which he was wearing at the time of incident, the blood stained ‘Damar’ collected from the spot and the knives recovered in pursuance of the information of 3 accused appellants, namely Sheru, Ramesh and Tarun from their possession. In our view, this is one of the strong circumstances against these appellants. In this view of the matter, as already observed above, it must be concluded that PW4 Rajesh, a solitary witness is a witness of sterling worth.
22. Now what is required to be adjudicated upon is whether the trial court was right in convicting the appellants under Section 302 with the aid of Section 149 IPC.
23. Learned counsel for the appellants contended that the trial court has seriously erred in facts and in law in convicting and sentencing the appellants under Section 302 read with Section 149 IPC. There is neither any evidence available on record nor there is any finding of the court below that there was an unlawful assembly muchless that there was any common object of killing the deceased. Learned counsel stressed that the facts and circumstances of the case does not unequivocally prove the existence of common object of such persons forming the unlawful assembly who had come on the spot and attacked the deceased, in consequence of which deceased lost his life.
24. We have considered the above argument. From a close scrutiny of the evidence of PW4 Rajesh, it becomes abundantly clear that he could not identify accused Juli, Hanuman and Dilip, which could lead us to draw an inference that they actively participated in the commission of offence. What stands proved from the evidence of this solitary witness is that appellants Ramesh, Sheru @ Jitendra and Tarun along with three others, whom this witness could not identify, came at the place of incident and appellants Ramesh, Sheru and Tarun took out knives and caused as many as 7 injuries on the person of Manoj, thereby causing his death. It appears to us that 3 more persons had accompanied appellants Tarun, Sheru and Ramesh, but as per the evidence of PW4 Rajesh, those three accused remained stayed at some distance at the time when Tarun, Sheru and Ramesh were stabbing Manoj. Having gone through the evidence on record, we find that nothing could be recovered from appellants Juli, Hanuman and Dilip. Therefore, the presence and participation of appellants .lull, Hanuman and Dilip at the time and place of incident has not been established from the evidence of PW4 Rajesh. Hence appellants. Juli, Hanuman and Dilip deserves to be extended the benefit of doubt.
25. However, from the prosecution evidence it appears that appellants Ramesh, Sheru and Tarun formed a common intention to commit an offence, in furtherance of which they came together, used knives and inflicted injuries simultaneously on the person of deceased and left the place of occurrence together. The prosecution has established that these three accused persons joined in the actual doing of the act which resulted in the death of Manoj. The existence of the common intention amongst the aforesaid accused has been established from the evidence of PW4 and other surrounding circumstances. The absence of the charge under Section 34 1PC would not make any difference because on the proved facts and the evidence available on record, their intention to commit an offence has been established. In this view of the matter, appellants Ramesh, Sheru and Tarun can, therefore, be convicted for the major offence read with Section 34 IPC.
26. Lastly, it has been strenuously contended by the learned counsel for the appellants that appellants Ramesh, Sheru and Tarun had no intention to cause death of the deceased, inasmuch as none of the accused caused injuries on any vital part of the body of deceased. Referring to the post mortem report, learned counsel stressed that all the injuries caused were on the buttock and thigh and therefore, the case does not fall within the purview of Section 300 IPC and that the accused, at the most, can be held liable for causing grevious hurts to the deceased with no intention to commit murder.
27. We have considered the above argument. In our considered view, the injury to a vital part of the body is not necessarily an ingredient to determine whether the case falls under Section 300 IPC or not. In the present case, the injuries on non vital parts were collectively and individually sufficient to cause death in the ordinary course of nature. The beating was premeditated and calculated. The aim of the assailants was to cut the vital artery and veins of the legs of the deceased and they succeeded in their design, causing as many as 7 injuries (incised wounds) including injury No. 2 of the length of 2 cm on left thigh medially and injury No. 5 i.e. incised wound of the length of 2 cm on left thigh post lower of l/3rd which resulted in cutting muscles, femoral artery and femoral vein of left thigh of the deceased and injury No. 5 2cm x 1cm on left thigh going up to the depth of 5cm in downward direction and medially cutting the popliteal artery, muscles and small vessels and both these injuries, as per the medical opinion, were collectively and individually sufficient in the ordinary course of nature to cause death’. The accused duly armed with knives mercilessly belaboured the deceased and caused 7 injuries on the person of deceased. The injuries were on the buttock and thigh. Any one who causes injuries with the weapons of the kind that the appellants used must be fixed with the intention of causing such bodily injury or injuries as would fall within the ambit of Clause Thirdly of Section 300 IPC. The assault by the accused can be said to be murderous and it must have been apparent to the assailants that the injuries they were inflicting in furtherance of the common intention of all were sufficient in the ordinary course of nature to cause death. Therefore, in our view it cannot be said that the offence was not murder but only culpable homicide not amounting to murder. We are fortified in our view by a decision of the Apex Court in the case of Anda v. State of Rajasthan (2), wherein their Lordships of the Supreme Court have held as under:
“In this case the accused beat Bherun inside a house after dragging him there. The number of injuries shows that all took part. His arms and legs were smashed and many bruises and lacerated wounds were caused on his person. The injuries intended to be caused were a sufficient in the ordinary course of nature to cause death. The assault was thus murderous and it must have been apparent to all the assailants that the injuries they were inflicting in furtherance of the common intention of all were sufficient in the ordinary course of nature to cause death. In these circumstances it cannot be said that the offence was not murder but only culpable homicide not amounting to murder”.
28. Reference may also be made to a decision of the Apex Court in the case of State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (3), wherein their Lordships considered the above cited case of Anda v. State of Rajasthan (supra), and held as under:
“The ratio of Anda v. State of Rajasthan (AIR 1966 SC 148) (supra), applies in full force to the facts of the present case. Here, a direct casual connection between the act of the accused and the death was established. The injuries were the direct cause of the death. No secondary factor such as gangrene, tentanus etc. supervened. There was no doubt whatever that the beating was premeditated and calculated. Just as in Anda’s case, here also, the aim of the assailants was to smash the arms and legs of the deceased, and they succeeded in design, causing no less than 19 injuries, including fractures of most of the bones of the legs and the arms. While in Anda’s case, the sticks used by the assailants were not specifically dangerous, in the instant case, they were unusually heavy lethal weapons. All these acts of the accused were pre-planned and intentional, which considered objectively in the light of the medical evidence, were sufficient in the ordinary course of nature to cause death. The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of Clause 3rdly of Section 300. The expression “bodily injury” in Clause 3rdly includes also its plural so that the clause would cover a cause where all the injuries intentionally caused by the accused are cumulatively sufficient to cause death in the ordinary course of nature, even if none of those injuries individually measures up to such sufficiency. The ‘sufficiency’ spoken of in this clause as already noticed is the high probability of death in ordinary course of nature and if such sufficiency exists and death is caused and the injury causing it is intentional the case would fall under Clause 3rdly of Section 300. All the conditions which are a prerequisition for the applicability of this clause have been established and the offence committed by the accused in the instant case was ‘murder’.
29. As regards conviction under Section 341 IPC, it is evident from the prosecution evidence that appellants Sheru, Ramesh and Tarun voluntarily obstructed deceased Manoj from proceeding in the direction in which he had a right to proceed. Therefore, these three accused appellants are guilty of wrongfully restraining Manoj. The trial court has rightly found the accused appellants Sheru, Ramesh and Tarun guilty of having committed offence under Section 341 1PC.
30. The net result of our above discussion is that:
1. The conviction of appellants (1) Juli (a) Pramod Singh (appellant No. 2 in appeal No. 85/2001), (2) Hanuman @ Vikram (appellant in appeal No. 139/2001) and (3) Dilip Bheel (appellant in Appeal No. 417/2001) is set aside and are acquitted of the offences charged with.
2. The conviction of appellants Tarun Sharma and Ramesh (appellants No. 1 and 3 in appeal No. 85/2001) and Sheru (a) Jitendra (appellant in appeal No. 138/2001) under Section 302 read with Section 149 1PC is set aside. Instead, each of them is convicted under Section 302/34 1PC and is sentenced to life imprisonment with a fine of Rs. 5000/-. In default of payment of fine, each shall have to further undergo one year’s rigorous imprisonment.
3. The conviction of appellants Tarun, Ramesh and Sheru under Section 341 1PC and the sentence awarded thereunder by the trial court is maintained.
4. The conviction of appellants Tarun Sharma, Ramesh and Sheru @ Jitendra under Section 148 and the sentence awarded thereunder is set aside.
5. The sentences of appellants Tarun, Ramesh and Sheru shall run concurrently.
31. Accused Juli, Hanuman and Dilip are in jail. They be released forthwith, if not required in any other case.
32. The appeals stand disposed of in the manner aforesaid.