Allowed

Dhanna Ram and Anr. v. State of Rajasthan

Rajasthan HC1 May 2017CRLA/231/1993

Case brief

AI extract

What is this about?

The High Court allowed the appeal against conviction under Section 304 Part-II read with Section 34 IPC. The court held that the prosecution failed to prove involvement of co-accused Nimba Ram as eyewitnesses did not identify him initially. Consequently, holding the appellant Dhanna Ram liable jointly under Section 34 IPC was not sustainable, necessitating acquittal for both.

What did the court decide?

Impugned judgment set aside, appellants acquitted, bail bonds discharged, record sent back.

Dhanna Ram and Anr. Vs State of Rajasthan — Murder and Culpable Homicide | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Criminal Appeal No. 231 / 1993

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Dhanna Ram S/o Mangla Ram, by caste Matora, Tehsil Osian District Jodhpur

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Nimba Ram S/o Moola Ram, by caste Jat, R/o Sathika, District Nagaur

----Appellant Versus

State Of Rajasthan

----Respondent

For Appellant(s) : Mr B.S.Rathore

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For Respondent(s) : Mr O.P.Rathi - PP

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HON'BLE MR. JUSTICE VIJAY BISHNOI

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Judgment

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01/05/2017

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This appeal has been filed by the appellants against the judgment dated 24.06.1993 passed by the Additional Sessions Judge No.1, Jodhpur (for short ‘the trial court’ hereinafter) in Sessions Case Nos.32/1988 and 42/1991, whereby the trial court has convicted the appellants for the offences punishable under section 304 Part-II read with section 34 IPC and sentenced them to 7 years’ rigorous imprisonment.

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Brief facts of the case are that appellant-Dhanna Ram lodged an oral report at Police Station, Osian on 18.06.1987 stating therein that in the boundary of village Matoda, Tehsil Osian, agricultural fields of him and his brother are situated,

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(2 of 12)

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[CRLA-231/1993]

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wherein two huts are also existing. In the said agricultural fields on around 16 bighas of land he sown Bajra, however, around 20 days before, in his absence, Chhoga Ram and his sons forcibly took possession of the said land and then he informed about the same to Head of village - Bhom Singh, Sang Singh and Ramchandra, who assured him that they would settle the dispute in Panchayat, however, no settlement was arrived. He has alleged that in the previous night, Chhoga Ram and his sons had also sown another agricultural field of him and he came to know about this in the morning at 8:00 A.M. when he visited his agricultural fields along with his mother. It is stated that his mother abused Chhoga Ram and others for sowing their agricultural field and thereafter she proceeded to the police station to lodge a report, then he stopped her and brought her to his house then Chhoga Ram and his son Mehraj, Kheraj and Mukna Ram and one another person came from behind and chased him to beat, then he ran away from there leaving his mother in the field of Puna Ram. When the above named persons failed to catch him, they returned back, then his mother again abused them and asked them why they are trying to kill her son, then all the five persons started beating his mother. Mehraj was armed with a Farsi, Kheraj with Dharia and other persons were having lathis. After beating his mother, all the accused persons returned to their Dhani and when he and Kheraj Ram went to his mother they found that she had received injuries on her face and the blood was oozing out from the injuries and his mother succumbed to the injuries. It is further stated that after leaving his mother on the spot, he went to village

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(3 of 12)

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[CRLA-231/1993]

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and narrated the incident to Mohan Lal, Sarpanch, Ramchandra, Bhom Singh and Sangsingh.

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On receiving the oral report, the Police Station, Osian registered the FIR (Ex.P/12) and started investigation. After investigation, the police came to the conclusion that appellant No.1 Dhanna Ram with the intention to grab the agricultural filed of Khasra No.316, had hatched a conspiracy with appellant No.2 Nimba Ram, who is a near relative and killed his mother by beating with lathis. After investigation, the police had filed chargesheet against the accused-appellants. Appellant – Dhanna Ram was arrested on 15.02.1988, however, appellant – Nimba Ram could not be arrested during the course of investigation, however, the police had filed charge-sheet against both the appellants for the offence punishable under section 302/34 IPC. During the course of trial, appellant Nimba Ram surrendered before the court and was tried with appellant – Dhanna Ram.

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To prove the charge against the accused-appellants, the prosecution had produced 15 witnesses and got exhibited several documents. Statements of the accused-appellants were recorded under section 313 CrPC, however, no witness was produced in defence but several documents were exhibited in defence.

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The trial court after pondering over the evidence available on record and after hearing Public Prosecutor and the counsel for the accused-appellants has convicted the accusedappellants for the offence punishable under section 304 Part-II read with section 34 IPC and sentenced them as indicated above vide impugned judgment. Being aggrieved with the same, the

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(4 of 12)

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[CRLA-231/1993]

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appellants have preferred this appeal.

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Learned counsel for the appellant has argued that both the appellants have falsely been implicated in this case. It is submitted that as a matter of fact the FIR (Ex.P/12) was registered at the instance of the appellant – Dhanna Ram, wherein he has specifically alleged that Chhoga Ram and his sons killed his mother, however, the police has conducted the investigation in partition manner and falsely implicated the accused-appellants. It is contended that it cannot be believed that appellant - Dhanna Ram had hatched a conspiracy with appellant - Nimba Ram and killed his mother.

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Learned counsel for the appellants has further argued that all the alleged eye-witnesses viz. PW.2 Kheraj Ram, PW.3 Chhoga Ram, PW.6 Mehraj, PW.7 Ramu Ram and PW.12 Jagdish are the near relatives and are interested witnesses and, therefore, their testimonies cannot be believed. It is further argued that appellant Dhanna Ram was arrested on 15.02.1988, whereas the incident took place on 18.06.1987 and looking to this fact itself, recovery of lathi at the instance of Dhanna Ram cannot be believed.

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In the alternative, learned counsel for the appellants has argued that the alleged eye-witnesses PW.2 Kheraj Ram, PW.3 Chhoga Ram, PW.6 Mehraj, PW.7 Ramu Ram and PW.12 Jagdish in their police statements did not name the appellant Nimba Ram and simply said that appellant-Dhanna was accompanied by one Sathi-ke-wala Jaat, who had inflicted first injury on the head of Gavri and thereafter appellant-Dhanna Ram

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(5 of 12)

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[CRLA-231/1993]

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had inflicted injuries on her. Learned counsel for the appellants has argued that the presence of appellant-Nimba Ram on the spot is not established as none of the eye-witnesses has named him in his police statement and in the court statement they have admitted that they came to know about the identity of the accused-appellant Nimba Ram later on. It is also argued that no recovery of any weapon has been effected from the accusedappellant – Nimba Ram and as such the prosecution has failed to produce any cogent or reliable evidence to connect the appellantNimba Ram with the commission of crime.

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Learned counsel for the appellants has further argued that as the prosecution has failed to prove the involvement of the appellant Nimba Ram in commission of crime, the conviction of the appellant-Dhanna Ram for the offence punishable under section 304 Part-II read with section 34 IPC cannot be maintained. In support of the above argument, learned counsel for the appellants has placed reliance on decisions of Hon’ble Supreme Court rendered in Sukhram vs. State of Madhya Pradesh, AIR 1989 SC 772, Madan Pal vs. State of Haryana, (2004) 13 SCC 508 and in Koppula Jagdish alias Jagdish vs. State of A.P., (2005) 12 SCC 425.

¶35

Per contra, learned Public Prosecutor has vehemently argued that the prosecution has proved the charges against the appellants for the offence punishable under section 304 Part-II read with section 34 IPC by producing cogent and reliable evidence and, therefore, the impugned judgment passed by the trial court convicting the accused-appellants for the aforesaid

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(6 of 12)

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[CRLA-231/1993]

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offence is not liable to be interfered with.

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Heard learned counsels for rival parties, perused the impugned judgment and carefully scrutinized the record of the case.

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So far as unnatural death of Gavri wife of Mangla Ram, resident of village Matoda is concerned, the same is not in dispute. As per the Post Mortem Report (Ex.P/3) 8 ante mortem injuries were found on the body of the deceased. All the injuries were lacerated wounds and out of them, injury No.1 was on the left side of forehead, injury No.2 was on the nose, injury No.3 was on left cheek, injury No.4 was on upper lip below nose, injury No.5 was on left cheek in middle, injury No.6 was on left ring finger, injury No.7 was swelling around right eye and injury No.8 was on the mid parietal region. Injury Nos. 1 to 4 and 8 were bone deep. In the Post Mortem Report, the cause of death is mentioned as head injury and PW.4 Dr. Dharmendra Sharma has verified the Post Mortem Report.

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Now the question comes whether the prosecution has produced cogent and reliable evidence to connect the appellants with the commission of crime. First I propose to discuss the evidence available on record against the appellant - Nimba Ram.

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In the FIR (Ex.P/12) lodged on the basis of the oral report, appellant – Dhanna Ram has not disclosed the presence of appellant – Nimba Ram and has stated that at the time of incident, only he and his mother deceased Gavri were present in the agricultural field and no other person was there. The FIR is dated 18.06.1997 and on the very next day i.e. 19.06.1997 the

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(7 of 12)

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[CRLA-231/1993]

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police recorded the statements of PW.2 Kheraj Ram, PW.3 Chhoga Ram, PW.6 Mehraj Ram under section 161 CrPC vide Ex.D/1 to Ex.D/3. In their statements, the above named witnesses specifically stated that at the time of incident, appellant-Dhanna Ram was accompanied by Sathi-ke-wala Jaat and they did not name the appellant-Nimba Ram. In the cross-examination, PW.2 Kheraj Ram has stated as under:

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^^;g lgh gS fd c;ku b ,Dl Mh nsrs le; eSaus fuEck jke

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dk uke ugha fy[kk;k Fkk D;ksafd ml fnu rd mldk uke eq>s /;ku ugha FkkA ml fnu eSa fuEck jke dks 'kDy ls tkurk FkkA fuEck jke dks iqfyl okys idM+ dj yk;s o pkj ikap vkneh dks [kM+k dj ds iwNk fd buesa ls dkSu lk vkneh gS rks eSaus fuEck jke dks igpku dj mldk crk;k rHkh mlds uke dk irk pykA**

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PW.2 has not clarified that when he came to know

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about the name of appellant-Nimba Ram.

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PW.3 Chhoga Ram in his cross-examination has stated that though in his police statement (Ex.D/2), he had disclosed the name of appellant -Nimba Ram but why police did not write that he does not know.

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PW.6 Mehraj Ram in his cross-examination has stated

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as under:

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^^;g lgh gS fd okds okys fnu eSa uhack jke dks mlds uke ls ugha tkurk Fkk cfYd ;g lkBh ds okyk tkV ds uke ls tkurk FkkA**

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It is also to be noticed that police statements of PW.12 Jagdish (Ex.D/4) were recorded for the first time on 29.08.1987 in which he had claimed that he was present at the time of incident and also witnessed the incident but he had not named the

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(8 of 12)

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[CRLA-231/1993]

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appellant – Nimba Ram and simply stated that the person accompanied with appellant-Dhanna Ram had inflicted injury on the head of the deceased by lathi. Even in his cross-examination, PW.12 did not name appellant-Nimba Ram and simply said that one person Sathi-ke-wala Jaat, was accompanying the appellantDhanna Ram at the time of incident and he had inflicted the injury. First blow on the head of the deceased was by lathi.

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PW.7 Ramu Ram has stated as under:

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^^uhack jke dks okdk ls igys uke ls ugha tkurk Fkk lkBh ds xkao dk tkV gSa o cDrk dk lkyk gS ;gh tkurk FkkA 10&12 fnu ckn esa uke dk irk pyk FkkA**

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From the above, it is clear that PW.7 was not knowing about Nimba Ram at the time of incident and he came to know about him after 10-12 days of the incident.

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From the above piece of evidence, it is clear that the eye-witnesses viz. PW.2 Kheraj Ram, PW.3 Chhoga Ram, PW.6 Mehraj, PW.7 Ramu Ram and PW.12 Jagdish have not named the accused-appellant Nimba Ram in their police statements, however, later on in their court statements, they had named him but failed to clarify that when they came to know about Nimba Ram.

¶62

Though the appellant Nimba Ram could not be arrested by the police during the course of investigation and charge-sheet has been filed against him under section 299 CrPC, however, after his surrender before the trial court on 10.07.1991, it appears that the said appellant was sent to police custody by AMJM Court, Osian, however, during the police custody, no recovery of any lathi or weapon was effected from him.

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(9 of 12)

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[CRLA-231/1993]

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Having considered the above referred evidence, I am have no hesitation in holding that the prosecution has failed to prove the involvement of accused-appellant – Nimba Ram in commission of crime beyond reasonable doubt. Hence, the trial court is not justified in convicting him for the offence punishable under section 304 Part-II read with section 34 IPC.

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There is force in the argument of the learned counsel for the appellants that if the prosecution has failed to prove the case against the appellant – Nimba Ram, then the conviction of the appellant – Dhanna Ram for the offence punishable under section 304/34 IPC also cannot be maintained.

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It is noticed that the trial court has framed charges against the accused-appellant Dhanna Ram for the offence punishable under section 302/34 IPC and he was not charged individually for the offence punishable under section 302 IPC or 304 IPC.

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The Hon’ble Supreme Court in Sukhram vs. State of Madhya Pradesh (supra), has held as under:

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“10.There is another aspect of the matter which has also escaped the notice of the High Court when it sustained the conviction of the appellant under Section 302 read with Section 34 and Section 436 read with Section 34 I.P.C. while acquitting accused Gokul of those charges. Though the accused Gokul and the appellant were individually charged under Sections 302 and 436 I.P.C., they were convicted only under the alternative charges under Section 302 read with Section 34 and Section 436 read with Section 34 I.P.C. by the Sessions Judge. Consequently, the

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(10 of 12)

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[CRLA-231/1993]

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appellant's convictions can be sustained only if the High Court had sustained the convictions awarded to accused Gokul also. Inasmuch as the High Court has given the benefit of doubt to accused Gokul and acquitted him, it follows that the appellant's convictions for the two substantive offences read with Section 34 I.P.C. cannot be sustained because this is a case where the coaccused is a named person and he has been acquitted and by reason of it the appellant cannot be held to have acted conjointly with anyone in the commission of the offences. This position of law is well settled by this Court and we may only refer to a few decisions in this behalf vide Prabhu Babaji v. State of Bombay AIR 1956 SC 51 , Krishna Govind Patil v. State of Maharashtra [1964] 1 SCR 678 and Baul v. State of U.P. (AIR 1968 SC 728).

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It, therefore, follows that even if the evidence of the prosecution witnesses did not suffer from any infirmity, the acquittal of the other named accused Gokul would stand in the way of the appellant being convicted constructively under Section 34 I.P.C. for the substantive offences under Section 302 and Section 436 I.P.C.

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It is no doubt true that on account of the fire 14 sheds had been burnt and an old woman Gangabai and Mukesh an young boy of seven years had lost their lives. However, on account of the infirmities and contradictions noticed in the prosecution evidence and the legal impediment resulting from the acquittal of Gokul, who was a named accused person, the convictions and sentences awarded to the appellant cannot be sustained.”

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In Madan Pal vs. State of Haryana (supra), the

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Hon’ble Supreme Court has held as under:

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(11 of 12)

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[CRLA-231/1993]

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“2. On appeal before the High Court against the order of conviction and sentence, both the appellant herein and Kanta Devi denied their involvement in the murder. The High Court, however, thought it fit to pass an order of acquittal as regards Kanta Devi but ordered the conviction and sentence against the appellant herein, and hence the further appeal before this Court upon grant of leave under Article 136 of the of the Constitution.

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Significantly, however, the High Court has not delved into the issue as to the circumstances under which Section 34 I.P.C. was said to be invoked. Both the charges and also questions put on Section 313 Cr. P.C. depict that it is not an individual act but the joint effort of both the persons but there is neither any evidence available on record to that effect.

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In the wake of the aforesaid view and the factum of Section 34 IPC being also involved, the High Court convicted the accused under Section 302 IPC read with Section 34 IPC. In our view, there is a manifest error in maintaining the conviction and sentence. In the absence of any other accused person, question of applicability of Section 34 IPC would not arise.”

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In Koppula Jagdish alias Jagdish vs. State of

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A.P. (supra), the Hon’ble Supreme Court has held as under:

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“3. Undisputedly, all the three accused persons were charged u/s. 302 read with Sec. 34 of the Indian Penal Code for sharing common intention to commit murder of the victim. The other two accused persons as stated above, have been already acquitted by the High Court. There is neither any allegation nor evidence that the appellant alone inflicted all the injuries or the fatal one. This being the position, the appellant could not have been convicted u/s. 302 simpliciter but could have been convicted only with the aid of Sec. 34

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(12 of 12)

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[CRLA-231/1993]

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Indian Penal Code, which also is not possible in the case in hand as the other two accused persons with whom he could have shared the common intention have been already acquitted by the High Court. In our view, the High Court was not justified in convicting the appellant u/s. 302 of the Indian Penal Code.”

¶88

In view of the above settled principles of law laid down by the Hon’ble Apex Court, when this Court has found that the conviction of the appellant – Nimba Ram under section 304 Part-II read with section 34 IPC is not sustainable as the prosecution has failed to prove the charge against him beyond reasonable doubt, the conviction of appellant – Dhanna Ram for the offence punishable under section 304 Part II read with section 34 IPC also cannot be sustained as the appellant – Dhanna Ram cannot be held conjointly with any one in the commission of offence.

¶89

In view of the above discussions, this appeal succeeds and is allowed. The impugned judgment dated 24.06.1993 passed by the Additional Sessions Judge No.1, Jodhpur in Sessions Case Nos.32/1988 and 42/1991 is set aside. The appellants are on bail, their bail bonds stand discharged.

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Record be sent back forthwith.

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(VIJAY BISHNOI)J.

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m.asif/PS

Dhanna Ram and Anr. v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Dhanna Ram and Anr. v. State of Rajasthan

Case brief

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What did the court decide?

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