Sadhu Ram Vs. State of Rajasthan - Court Judgment

Excerpt:
penal code, 1860 - section 302--murder--appreciation of evidence--deceased struck by 'bansiya' by the accused while asleeps in the night and died instantaneously--barking of deceased's pet dog resulted in awakening of deceased's son and a neighbour sleeping nearby--as nobody came forward in the night, fir lodged the next morning at 9.00 a.m.--delay in lodging fir thus well explained--non-examination of neighbour is not fatal as per the public prosecutor, he was not supporting the prosecution case--evidence of other solitary eye-witness not shaken in cross-examination and supported by medical evidence--extra-judicial confession also made by the accused to witnesses whose testimony could not be shaken in cross-examination--weapon of offence also recovered at the instance of the accused--motive of offence also proved--offence of murder proved beyond all reasonable doubt.;appeal dismissed - - 1 man singh and sadhu ram mistry but he made good his escape. 1 man singh, not only in his ocular testmony but in the trial court as well specifically stated that upon barking of the pet dog of deceased, he along with sadhu ram mistry woke up and found accused appellant assaulting his father. upon their raising hue and cry, accused took to his heels, who was followed by this witness and sadhu ram mistry but accused made his escape good. 14. a perusal of the file reveals that sadhu ram mistry was present in the trial court on 20.6.1997 but public prosecutor dropped him and did not like to examine him because he was not supporting the prosecution version. if the evidence is found wholly reliable then even if he was relative witness, his uncorroborated testimony will suffice to bring home the guilt. 15. both these witnesses have not been cross-examined much on this point and they have also rightly been held reliable by the trial court.jagat singh, j.1. these appeals have arisen out of judgment dated 04th november, 1997 delivered by learned addl. sessions judge, nohar district-hanumangarh in sessions case no. 9/96 whereby accused sadhu ram s/o kheta ram was convicted under section 302, i.p.c. and was sentenced to life imprisonment alongwith fine of rs. 1000/-.2. both these appeals have been filed against the common judgment dated 04th november, 1997 and there being common questions of facts and law involved in the matter and there being common arguments advanced before us, both these appeals are being disposed of by this common judgment, copy of which may be retained in each case file.3. brief facts of the case are that on 09th july, 1996 at about 11:30 in the night in village gandhibadi under police station, bhirani, district-hanumangarh, one ramji lal chamar, aged about 52 years, was beaten to death by his own cousin brother sadhu ram, appellant herein, when the deceased was sleeping in front of his shop. upon infliction of injury on ramji lal, pet dog of the deceased barked, resulting which p.w.1 man singh aged about 18 years, son of the deceased, sleeping nearby, as also one. sadhu misry, owner of neighbouring shop, who also was sleeping nearby, woke up and saw the accused appellant assaulting deceased by iron 'bansiya'. upon their raising hue and cry, accused ran away and was followed by p.w.1 man singh and sadhu ram mistry but he made good his escape.4. both these persons came back to the place of occurrence and found that due to injuries inflicted on head and vital parts of body, ramji lal breathed his last. p.w.1 man singh tried to inform his uncles. data ram and taru ram but they did not open their doors in the dead of night and therefore, he came back at the site and remained sitting by side of his deceased father along with sadhu ram mistry. in the morning, data ram and taru ram were informed about the occurrence, who advised man singh to inform their eldest brother ram kumar (p.w.2), who was residing in the neighbouring village nathursari. upon his coming at the site, man singh- p.w.1 went to police station, bhirani and lodged fir ex. p.1, at 9 am.5. autopsy on the dead body was conducted by p.w.-3 dr. subhash rajput, who found 5 blunt injuries on the skull, on temporal, zygometic and maxila bones, which according to him were sufficient in the ordinary course of nature to cause death. accused appellant was also apprehended and arrested on next day at about 5 pm vide arrest memo ex.p5. his blood-stained worn clothes were also seized and sealed on the succeeding day vide memo ex.p/24. accused appellant gave voluntary disclosure statement ex.p.21 under section 27 of the evidence act and wanted to get iron bansiya, the weapon of offence which was got recovered by the accused appellant in the presence of attesting witnesses bhim singh and leelu ram vide ex.p/22 from his resiential house which was also seized and sealed then and there.6. after usual investigation, accused was challaned and charged by the trial court for offence under section 302, i.p.c. upon his denying the charge and claiming trial, the prosecution examind 7 wtnesses and exhibited 20 documents. in the statement given under section 313, cr.p.c., accused appellant denied all incriminating evidence appearing against him and made specific plea that he has been falsely roped in due to animosity. he was given a beating by his brother-in-law and therefore, he went to police station, bhirani to lodged report but instead of registering his report, he was arrested in this offence. no defence witness was produced in support of above contentions.7. learned trial court after a careful scrutiny of the evidence led by the prosecution, held the accused appellant guilty for offence under section 302, i.p.c. and awarded punishment as afore stated.8. we have heard at length mr. singh learned counsel for accused appellant as also learned public prosecutor and have carefully scanned and scrutinized the evidence available on the file.9. submissions of the learned counsel for accused appellant are that conviction has been based on the solitary testimony of p.w.1 man singh, who is son of the deceased and other eye-witness sadhu ram mistry, named in the f.i.r., has not been produced by the prosecution. the f.i.r. was delayed and the delay has not been explained reasonably. the extra-judicial confession allegedly made before three brothers of the deceased has not been proved verbatim and that same has wrongly been relied upon by the trial court. so-called recovery of 'bansiya', weapon of offence has not been proved by producing attesting wtnesses bhim singh and leelu ram and that the blood-stained clothes of the accused, so seized and sealed, though were found stained with human blood yet were not sufficient to ncriminate the accused appellant in the crime because admittedly, immediately before the occurrence, accused was given beating by his own brother-in-law as also by the deceased and human blood foun on torn clothes of the accused would have been his own blood. on the contrary, learned p.p. has supported the impugned judgment and conviction delivered by the trial court.10. we have carefully considered the rival contentions and have minutely scanned and scrutinized, analyzed and assessed the ocular and documentary evidence available on the file, in the facts and circumstances available on the file, following points emerge for determination and reappreciation of evidence:(1) whether the f.i.r. was delayed one and there was no reasonable explanation available for the delay?(2) whether there was justification for withholing sadhu ram mistry, alleged eye-witness as per f.i.r.?(3) whether conviction can be based on solitary, uncorroborated testimony of p.w.-1 man singh?(4) whether extra-judicial confession was made before three brothers of the deceased? and its evidenciary value.11. since the learned counsel has submitted before us that the occurrence allegedly took place at about 11:30 p.m. in the night whereas f.i.r. ex.p.1 was lodged at 9 a.m. on the succeeding day and the cause of delay has not been mentioned in the f.i.r., though p.w.1 man singh tried to explain the same in his ocular testimony before the trial court, same could not have been reasonable cause of delay yet the trial court has ignored this important aspect. on the contrary, learned p.p. has justified the conclusion drawn by the trial court because p.w.1 man singh, not only in his ocular testmony but in the trial court as well specifically stated that upon barking of the pet dog of deceased, he along with sadhu ram mistry woke up and found accused appellant assaulting his father. upon their raising hue and cry, accused took to his heels, who was followed by this witness and sadhu ram mistry but accused made his escape good. thereafter, both of them came back to the place of occurrence and found ramji lal died due to injuries on vital parts of his head. man singh, p.w.1 deposed that immediately he went to house of his uncles data ram but the latter was not at his house and was at his agriculture farm, therefore, he came back at the site and remaind sitting throughout night by the side of dead body of his father. in the morning, at about 6 a.m. he again went to the house of his uncle data ram. thereafter, both his uncles, data ram and taru ram, came to site and saw the dead body and advised him to inform the eldest brother ram kumar. datta ram accordingly went to nathusari and informed ram kumar. thereafter, man sngh went to p.s. bhirani and lodged f.i.r. ex.p.1. the cause of delay has also been specified at the bottom of f.i.r. ex.p.1 wherein it has been specifically mentioned that after the occurrence, p.w.1 went to house of his uncles data ram and taru ram to inform that sadhu ram has caused injuries on the head on the deceased.12. it has not been mentioned in the f.i.r. that immediately after the occurrence, data ram, taru ram were informed about it or in the morning at 6 a.m. they were informed about the occurrence. even if it is presumed that immediately after occurrence data ram and taru ram were informed about it even then it would not have made any diffrence because data ram and taru ram were not able to take any decision as they advised man singh to inform the eldest brother ram kumar (p.w.2) from his village nathusari. upon his coming 18 years boy p.w.1 man singh, who was not able to take decision himself was advised to lodged report in the police station which was immediately done by him. ex.p.1 itself indicates that distane of the police station from the site was 30 kms. needless to mention that accused sadhu ram was one of the uncles of p.w.1 man singh. that fact itself was mentioned in the f.i.r. ex.p.1 when a collateral uncle was accused for offence under section 302, i.p.c. and informant p.w.1 man singh himself was 18 years old rustic boy, it was not possible for him to take a drastic decision of lodging the f.i.r. the so-called delay in lodging the f.i.r. has been reasonably explained not only by p.w.1 man singh but this fact also finds mention to some extent in the f.i.r. ex.p.1. had there been number of accused persons implicated, possibility of embellishment and exaggeration could have been suspected. there was no likelihood of embellishment and exaggeration in the f.i.r. ex.p.1 and trial court has rightly arrived at the conclusion that so-called delay in lodging the f.i.r. has been reasonably explained. the apex court in a spate of judgments has held that even long delay may be condoned if no motive for false implication is found. explanation of delay, if found not very satisfactory, that by itself is not a ground for disbelieving prosecution evidence. ram jog v. state of u.p. air 1974 sc 607; rammurthi v. state of haryana : 1976crilj1888 and apren joseph v. state of kerala air 1973 sc 01, among others can be referred to. therefore, first submission of the learned counsel has rightly been dismissed by the trial court and we uphold the same.13. learned counsel next contended before us that in the f.i.r. ex.p.1 sadhu ram mistry was mentioned as another eye-witness, who has his shop adjoining to shop of the deceased and on the day of occurrence, was sleeping before his shop and happend to awoke upon barking of pet dog of deceased and saw the occurrence as much it was seen by p.w.1 man singh yet that independent witness has been withheld by the prosecution for which adverse inference should be drawn that had he been examined, he would have spoken the truth exonerating the accused.14. a perusal of the file reveals that sadhu ram mistry was present in the trial court on 20.6.1997 but public prosecutor dropped him and did not like to examine him because he was not supporting the prosecution version. a written application to above effect was also filed before the trial court by the public proseuctor, whereupon this witness was dropped from examiantion. he was present in the court on 20.6.1997 and was dropped by the prosecution yet the defence counsel did not press for his examination or atleast for cross-examination. when upon interrogation by the p.p. a particular prosecution witness is found to be not supporting the prosecution case, p.p. has every right not to examine him. if such a procedure was adopted, it can not be said that prosecution has wilfully withheld an important eye-witness. it seems that by the time sadhu ram mistry was summoned for examination in the court, he was motivated by the defence side and was not ready to support the prosecution case. in such circumstances, if sadhu ram mistry was not examined and dropped by the public prosecutor, by no stretch of imagination it can be presumed that the prosecution has withheld an important eye-witness. it seems that even the defence was not also ready to place implicit reliance upon him and therefore, did not examine him on their behalf also. be that as it may, non-examination of sadhu ram mistry by itself does not damage the testimony of p.w.1 man singh, who has been extensively cross-examined by the defence counsel. therefore, trial court has rightly rejected his submission of the learned counsel for defence.15. so far as third contention of mr. singh that solitary and uncorroborated testimony of p.w.1 man singh is not sufficient to hold the appellant guilty for offence of murder, in this respect hon'ble apex court held that evidence is to be weighed and not to be counted. similarly, a relative and interested witness can not be equated with that of an approver so as to require corroboration as a matter of necessity. if the evidence is found wholly reliable then even if he was relative witness, his uncorroborated testimony will suffice to bring home the guilt. the apex court right from masalti v. state of u.p. : [1964]8scr133 to hukam singh v. state of rajasthan : 2001crilj511 , held that unless there are material discrepancies in the ocular testimony of a witness, the genuineness of the testimony of a relative or interested witness can not be discarded. therefore, it is probative value of a particular witness which is to be looked into in order to access whether the testimony is sterling worth to base conviction.16. therefore, we carefully analyse and assess with close scrutiny the testimonial value of evidence of p.w.1 man singh.17. p.w.1 man singh has lodged f.i.r. ex.p.1 in which detaild version of the prosecution case has been written. similarly, he has deposed on oath before the trial court that immediately prior to the occurrence, wife of the accused came to deceased and requested him to call her brother brij lal as her husband has been maltreating her. upon this, firstly, the deceased refused to comply because who will bear the expenses for bringing brij lal from his village. when wife of accused agreed to hand over some money to the deceased, then he agreed, went to the village and brought brij lal. brij lal, along with the deceased, tried to give a piece of advice to the accused but upon his not coming to the terms, accused was given some slaps not only by brij lal but also by deceased. man singh further deposed that at that time, accused gave threat to ramji lal (decease) that he wll not be spared. thereafter, when deceased was sleeping in front of her shop in the dead of night, accused came armed with an iron 'bansiya' and gave fatal blows, resulting into death of ramji lal.18. p.w.1 man singh has been cross-examined at length but could not be contradicted either by the f.i.r. ex.p.1 lodged by him or by his statements given under section 161, cr.p.c. this witness has been suggested in the cross-examination that police came on the site on a phone call made by bheem to dy. s.p., for which he pleaded ignorance. had it been so, at least some suggestion to the above effect should have been put to p.w.7 abdul qayyum, sho or p.w.4 ram kishan, asi or at least accused may also have stated so in his statement under section 313 cr.p.c. or some oral or documentary evidence to the effect may have been produced in the defence. p.w.4 ram kishan has been given a suggestion in the cross-xamination that he had been informed through wireless by the dy. s.p. which he has denied. no such suggestion has been put to p.w.7 abdul qayyum. had dy. s.p. informed the sho about the occurrence, at least some entry in the roznamcha or the police station must have been made. therefore, plea of the accused appellant that police came on the site of its own, is not tenable.19. except the above suggestion to p.w.1 man singh in the cross-examination, nothing was suggested to him affecting veracity of his testimony. this witness has withstood the test of cross-examination and has been consistent throughout in his statements as he has neither given any exaggerated version nor anything has been found affecting his veracity. therefore, trial court has rightly held him to be of sterling worth.20. the oral testimony of p.w.1 man singh has been supported by medical evidence of p.w.3 dr. subhash rajput, who conducted autopsy on the dead body of the deceased and has proved post mortem report ex.p.11. he deposed in the trial court that 5 ante- mortem lacerated wounds were found on the dead body which were caused by a blunt weapon and the cause of death was neurogenic shock due to laceration of brain. according to this witness, all the injuries are result of a single blow as they were connected with each other. there were fracture of maxila and zygometic and temporal bones. pieces of these bones were found in the brain.21. this doctor has also examined injuries of accused appellant and prepared injury memo ex.p.12 and found 4 bruises on his person, which support the prosecution story that prior to the occurrence, in the evening, decesed and brij lal gave some beating to the accused because he used to maltreat his wife, sister of brij lal.22. so far as blood-stained clothes recovered from the person of the accused are concerned, p.w.7 abdul qayyum has deposed that the accused was put under arrest vide ex.p.9 and 10.7.1996 at 5 p.m. but worn clothes, found to be blood-stained, were seized and sealed on 11.7.1996 vide ex.p.24. similarly, accused gave a disclosure statement under section 27 of the evidence act on 11.7.1996, which is ex.p.21 and got the iron 'bansya' recovered from residential house in the presence of bhim singh and lilu ram vide ex.p.22, which was also seized and sealed then and there. though bhim singh and lilu ram have not been examined in the trial court yet that by itself will not damage the testimony of pw 7 abdul qayyum, who has not been cross-examined on this point and has withstood the test of cross-examination and has proved the recovery of not only 'bansiya' article -1 but also 'kamij' article-4 and 'matmela paijama' article-5, which were sent to fsl in sealed condition. p.w.5 mahaveer prasad, incharge of the malkhana deposed that aforesaid-packets were received by him in sealed condition and he handed over those packets to p.w.6, sajjan singh for depositing in the fsl, who did the same and brought receipt ex.p.15. both these witnesses have not been cross-examined much on this point and they have also rightly been held reliable by the trial court.23. the fsl report ex. p.16 proves that all these articles were stained with human blood. not a bald suggestion was made to p.w.3 dr. subhash rajput that injuries which were found on person of the accused were of a nature, causing blood stains on clothes of the accused. even in statements under section 313 cr.p.c., accused has not stated that blood oozed from the injuries caused to him prior to the occurence. no such suggestion was made to any of the prosecution witness during the cross-examination that prior to the occurrence when accused was thrashed by his own brother-in-law and deceased, there were some sort of bleeding from those injuries. therefore, this submission of the learned counsel that blood found on worn clothes of the accused, may be his own, is not sustainable. the human blood found on the worn clothes of the accused as also on the iron 'bansiya, weapon of offence, immediately after the occurrence, also supports the prosecution story and has rightly been held so by the trial court; which we also uphold.24. the extra judicial confession so made by the accused appellant after the occurrence at the site, before ram kumar and his two brothers, has also been relied upon by the trial court while holding the accused appellant guilty. out of three brothers of the deceased, pw.2 ram kumar was produced as witness by the prosecution. he has deposed that in the very morning, all the three brothers were sitting at the site when sadhu ram came to them and admitted his mistake that he has killed ramji lal. in spite of extra judicial confession so deposed by this witness, no cross-examination was made on it. even in the statement given under section 161, cr.p.c. this fact found mention and it can be safely relied upon because this witness has not made any exaggeration in the court with regard to factum of extra judicial confession.25. the submissions of the learned counsel were that where was necessity for the accused to confess the guilt, coming on the site and not only before three brothers but many other persons assembled there. we are not convinced with this logic also because where was necessity for p.w.2 ram kumar to have alsely stated about the extra judicial confession had it been not made before him. when admittedly sadhu ram was also one of the cousin brother of the deceased and this witness and when in the morning he realised the mistake committed by him, it was not unnatural for him to go on the site and confess the guilt. when no cross-exaination was made on this point to p.w.2 ram kumar and his deposition has remained intact and unrebutted, why shall the trial court not believe it, nowhere it has been indicated that said extra judicial confession was not made voluntarily or that it has not been reproduced in the court in exact words. the probative value of extra judicial confession depends on veracity of the witness to whom it was made and if there is some assuring material or circumstances also, supporting the factum of extra judicial confession, court must believe it. in this respect, kavita v. state of tamil nadu 1986(6) scc 108; state of punjab v. gurdeep singh 1997(7) scc 714 and off late, state of anhra pradesh v. seikh majhar : 2001crilj3287 can be referred to. therefore, extra judicial confession so made by the accused appellant before p.w.2 ram kumar also strengthens the prosecution case and has been rightly relied upon by the trial court.26. the motive of the crime has been mentioned in the f.i.r. itself and has been so proved by p.w.1 man singh and prosecution evidence is also throughout consistent, cogent and convincing, as stated above. hence, the trial court has rightly held the accused appellant guilty.27. no other point was canvassed before us by learned counsel for the appellant.28. for the above close scrutiny and reappreciation of evidence of the prosecution, referred above, we do not find any merit in this appeal and dismiss the same. accused appellant is in custody. he shall serve out remaining part of sentence.