9911796707
TMI Blog2002 (1) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... Case No. 80 of 1992 in which (1) Bhajan Lal (2) Rai Sahab, (3) Ram Singh and (4) Ram Kumar faced trial. All the accused faced charge under Section 302 IPC read with Section 201 IPC and the learned Additional Sessions Judge, Hissar by his Judgment dated 9th/10th August, 1995 convicted Bhajan Lal under Section 302 IPC and sentenced him to imprisonment for life, whereas the accused Rai Sahab, Ram Singh and Ram Kumar were convicted under Sections 302/ 149 IPC and sentenced in the manner alike. The learned Additional Sessions Judge did not convict any of the accused under Section 201 IPC by reason of the conviction under Section 302 IPC read with Section 149 IPC. The case of the prosecution however, runs as below:- 3. Complainant-Budh Ram is the brother of Manphool (deceased). They are residents of village Chinder. On 22.1.1992, Budh Ram and Manphool went to the temple at about 6 a.m. and returned at about 6.15 a.m. When Manphool was ahead of Budh Ram by about 10 paces and had reached near the house of Kishan Lal, a jeep RJI-3407 was there and Rich Pal, a resident of Chinder and Appellant Bhajan Lal were standing near it, armed with guns. Appellant Rai Sahab was sitting on the driver se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.1.92 I deposited the case property with the MHC. On 26.1.92 I along with Ranjit and Dholu Ram was going in search of the accused and dead body. At Chable minor (mori) Yad Ram met me and told me that he along with Atma Ram has recovered dead body of Manphool from the Chuli Bagrian minor near the field of Ram Pat. Then I reached there I held inquest proceedings on the dead body of Manphool and prepared inquest report Exs.PD/1. I recorded statements of Dholu, Ranjit, Yad Ram and Atma Ram in the inquest proceedings I hand over the dead body along with application for post-mortem examination Ex.PD to constable Sadhu Ram and HC Jagdish. 5. It is at this stage it would be convenient to note the postmortem report which reads as below:- It was a dead-body of a man, moderately built and nourished, necked without any belongings with mouth and eyes closed. Rigor mortis was absent in all the limbs. The body was wet and smeared with mud, crass and leaves. The skin of the hands was swollen and was sodden. The nails and the hair could be pulled out easily. A tattooed mark Manphool was present on the anterior aspect of the right fore-arm and also found the following injuries. The height of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imation. I stayed at the spot near the dead-body. Yad Ram brought the Police. Dholu and Ranjeet also accompanied the police. Police prepared the inquest report of the dead-body and then recorded my statement. On 13.2.91 I and Ranjeet were going to the P.S. Agroha to enquire if Singha alias Ram Singh had been arrested or not. Dead-body was found 18/19 days prior to our going to the police station. Thanedar had met us at the Bus Stand of village Khara Kheri. There a secret information was received by Sub Inspector (Thanedar) that accused Ram Singh was coming from the side of village Chinder. In the meantime of four-wheeler came there from which accused Ram Singh had alighted. On our pointing out SI apprehended Ram Singh now present in the court. Upon interrogation by the police he (Ram Singh) disclosed that 18/19 days ago he along with four other persons after committing the murder of Manphool Singh had thrown his dead-body in the canal and before throwing the same he had removed a golden ring from the finger of the dead-body of Manphool and the same was conceded by him at his house in the Niwar (strings) of the Palang (bed) and could get the same recovered. In this regard his statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l by the accused persons pertain thereto. The State Government, also however, being aggrieved by the Order of acquittal moved this Court in appeal. Since these appeals arise out of the same Judgment, appeals were consolidated and were heard together. 9. The principal contention raised in support of the appeal filed on behalf of the accused persons has been that medical evidence as is available on record completely demolished the prosecution case. Let us, therefore, have a look at the medical evidence as is available on record. The postmortem report has already been noticed above and as such we need not dilate on the injuries inflicted on the body of the deceased excepting what is required presently for our purpose herein. Dr. R.K. Kataria conducted the postmortem examination on the body of the deceased on 27.1.1992. In this evidence he has been rather specific that injuries No. 1, 2 and 3 were the result of three independent shots though, however, possibility of injury No. 1 being caused by some heavy weapon cannot be ruled out. As regards direction of injury No. 2, Dr. Kataria explained that the nature of the injury itself indicates that it was caused by weapon from above to downw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from the back - the eye-witnesses account does not, however, obtain any support from the medical evidence rather runs counter thereto. A definite evidence of availability of some bones at the place of occurrence was admittedly not shown to the postmortem doctor. Eye-witnesses account (PW-8) Budh Ram records that after giving the lalkara accused Bhajan Lal fired upon his brother Manphool and Rich Pal accused had fired one shot upon his brother. Rich Pal accused had since died and the brother on receiving the firearm injuries fell down on the spot. Immediately, thereafter an alarm was raised by the eye-witness upon which accused Bhajan Lal and Rich Pal threatened him that in case of any alarm they would also kill the PW-8 by reason wherefore the latter took the shelter by the side of the Mandir. The witness went on to record that after Manphool, his brother, fell down and all the accused except Rai Sahab wrapped him in a blanket and put in the jeep and the accused Rai Sahab then drove the jeep. The witness thereafter stated that:- ... We then i.e. Dholu Ram, Ranjit and myself followed the accused in a truck. We went to the canal of Badopal. We also saw the accused on the roads but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased. This failure of the prosecution, in our view, cannot be taken as a mere omission but a failure, which would go a long way in the matter of reposing confidence thereon. 13. While it is true that the law is well settled in regard to the issue that in an appeal against conviction for the offence of murder Supreme Court would be rather slow to intervene in the event of there being a concurrent finding of fact but it is equally settled that in the event the finding, which suffers from the vice of perversity of any fundamental rules or even a definite procedural injustice going to the root of the prosecution case question of the Apex Court being slow in intervention would not arise. In this context, reference may be made to the decision of this Court in Arjun Marik and Ors. v. State of Bihar MANU/SC/1037/1994MANU/SC/1037/1994 : [1994]2SCR265 wherein this Court in paragraph 15 stated as below:- 15. We are also aware of the fact that as a rule of practice, in appeal against conviction for offence of murder Supreme Court is slow to disturb a concurrent finding of fact unless it is shown that the finding is manifestly erroneous, clearly unreasonable, unjust or illegal or violative of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record of the information given by the accused in the case-diary in such a manner as to make it appear that it led to the discovery of some facts although the police might have made such discovery from other sources. When a fact is once discovered from information received from another source, there can be no discovery again even if any information relating thereto is subsequently extracted from the accused. A devise sometimes adopted by the police is to stage a scene and take the accused to the place where the things discovered lay buried or hidden and require him to make a search for them at the spot indicated to the accused, or sometimes the articles are first produced before the accused and thereafter statements purporting to have been made by him about the so-called discovery are recorded. Court should be watchful that the protection afforded by Sections 25 and 26 should not be dependent on the ingenuity of the police officer in composing the narrative conveying the information relating to the alleged recovery of a fact. 15. In Pulukuri Kotayya v. Emperor 741 Ind. APP 65: AIR 1947 PC 67, the Privy Council considered the provision of Section 27 of Evidence Act and observed:- I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement/memo of the accused Ram Singh: while in the process of throwing the dead body of Manphool in the canal, a golden ring was removed from his person and that ring has been kept concealed though led to the subsequent recovery of the same. This statement however stands witnessed by Ranjit and Atma Ram (PW-11). (vii) Recovery memo of golden ring in terms of the disclosure statement witnessed by Ranjit and Atma Ram (PW-11). Ranjit happens to be the brother of Manphool, the deceased: the memos mentioned in No. 1-5 are all dated 29.1.1992 whereas 6th and 7th memos are dated 13.2.1992. 18. Two of the recoveries, as noticed above, thus stood witnessed by Atma Ram: let us briefly, at this stage, refer to the deposition of Atma Ram noticed herein before to the extent that on 26/27.1.192 when Atma Ram was searching for the dead body of Manphool, he reached Chable more and saw a dead body floating -- the dead body was then lifted to the bank of the canal and whereas Atma Ram was keeping a watch, Yad Ram was sent to inform the police. The police came along with Dholu and Ranjit. On the second occasion again Atma Ram and Ranjit enquired, after having discovered that though the dead body wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be trustworthy or being capable of creating confidence, the Court has to be consider the same upon proper scrutiny. In our view, the High Court was wholly in error in nor considering the evidence available on record in its proper perspective. The other aspect of the matter is in regard to the defence contention that Manphool was missing from village for about 2/3 days and is murdered on 21.1.1992 itself. There is defence evidence on record by DW-3 Raja Ram that Manphool was murdered on 21.1.1992. The High Court rejected the defence contention by reason of the fact that it was not suggested to Budh Ram or Dholu Ram that the murder had taken place on 21.1.1992 itself and DW-3 Raja Ram had even come to attend the condolence and it is by reason therefore Raja Ram's evidence was not accepted. Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one -- the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. Rejection of the defence case on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
