Allowed

Mohan Ram v. State of Rajasthan

Rajasthan HC14 Nov 2022CRLA/210/1990

Case brief

AI extract

What is this about?

Appeal against conviction under Section 302 IPC for a fatal head injury caused by a stick blow. The court found the prosecution case doubtful: the FIR was delayed and its date of incident contradicted by the medical evidence, the dead body's injuries were about 24 hours old at postmortem, and the witnesses' account of the victim remaining conscious for days was impossible. Conviction reversed and

What did the court decide?

Impugned judgment of conviction and sentence quashed and set aside; appellant acquitted of the charge; bail bonds discharged; personal and surety bonds directed under Section 437-A Cr.P.C.

Mohan Ram Vs State of Rajasthan — Murder and Culpable Homicide | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Criminal Appeal No. 210/1990

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Mohan Ram S/o Shri Chuna Ram, by caste Jat, R/o Village Geengala, Tehsil Osian, District Jodhpur.

----Appellant

Versus

State of Rajasthan

----Respondent

For Appellant(s) : Mr. J.S. Choudhary, Sr. Advocate assisted by Ms. Sampatti Choudhary For Respondent(s) : Mr. B.R. Bishnoi, AGC

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HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE FARJAND ALI

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J U D G M E N T

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Judgment pronounced on ::: 14/11/2022 Judgment reserved on ::: 02/08/2022

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BY THE COURT : (PER HON’BLE MEHTA, J.)

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The appellant herein has been convicted and sentenced as below vide judgment dated 20.06.1990 passed by learned District & Sessions Judge, Jodhpur in Sessions Case No.23/89:-

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Offence	Sentences	Fine	Sentence in lieu of
under			default of payment of
Section			fine
302 IPC	Life Imprisonment	Rs.50/-	1 month’s Additional RI

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He has preferred the instant appeal under Section 374(2) Cr.P.C. for assailing the impugned judgment of conviction and the sentences awarded to him by the trial court.

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(2 of 21)

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[CRLA-210/1990]

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Briefly stated the facts relevant and essential for disposal of the instant appeal are noted hereinbelow:-

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Lumbaram (PW.5) lodged a written report (Ex.P/4) at the Police Station Khedapa on 30.11.1988 at 11:15 AM alleging inter alia that his uncle (Phupa) Shri Pemaram had collected wheat from the ration shop at the village Hatundi and was proceeding towards his house. Pattu, daughter of Shri Pemaram was accompanying him. Both had reached near the dhani of Motaram, where Mohanram came around with a wooden stick and gave the blow thereof above the neck of Pemaram with the intention of killing him. He inflicted another blow of the stick on the left elbow due to which, Pemaram fell down on the ground. On seeing that Pemaram had become unconscious, Mohanram ran away with the weapon. Thereafter, Pemaram and his daughter proceeded to their home. The witness went to meet Pemaram who disclosed the entire sequence of events and requested Shri Lumbaram to lodge a report with the police. Pemaram also told that he was not having any means of transportation and thus, he could neither approach the police nor had he gone to any doctor for treatment. It was also alleged in the report that Pemaram and Mohanram had quarrelled with each other about ten days ago over the issue of cattle grazing.

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On the basis of this report, an FIR No.67/88 (Ex.P/13) came to be registered at the Police Station Khedapa on 30.11.1988 for the offences punishable under Sections 341, 307 & 323 IPC. Shri Pemaram was being taken to the hospital on 30.11.1988 but he

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(3 of 21)

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passed away before reaching there. The investigation was undertaken by SHO Babulal Joshi (PW.14). The dead body of Shri Pemaram was subjected to autopsy at the Mahatma Gandhi Hospital, Jodhupr on 01.12.1988 by Dr. Gulam Rakbani (PW.9) who took note of following three injuries on the body of the deceased:-

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(1) Swelling 6 cm x 4 cm on the left side temporoparietal region

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(2) Lacerated wound 3 cm x 1.5 cm facia deep on the left elbow

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(3) Abrasion 3 cm x 1 cm on the left knee

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On opening the scalp, extradural and subdural haematoma associated with fracture of left side temporoparietal bones were noticed. The brain matter was coming out from the site of the injury. The bones were shattered and blood was collected underneath the wound. The medical jurist noted that the deceased must have expired about 24 hours before autopsy was conducted. The injury No.1 was opined to be sufficient in the ordinary course of nature to cause death. The medical jurist issued the postmortem report (Ex.P/8). The accused appellant was arrested on 03.12.1988 vide arrest memo (Ex.P/3). Site inspection was conducted. Statements of the witnesses were recorded. The wooden stick used by the accused for assaulting the deceased was recovered. After concluding investigation, a charge-sheet, was filed against the appellant herein for the offence punishable under Section 302 IPC which was exclusively triable by the Court of Sessions and thus, the case was committed to the Courts of Sessions Judge, Jodhpur. Charge was framed against the accused for the above offence. He pleaded not guilty and claimed trial. The

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(4 of 21)

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prosecution examined 14 witnesses and exhibited 16 documents to prove its case. The accused was confronted with the prosecution allegations in his statement under Section 313 Cr.P.C. He denied the same, claimed to have been falsely implicated and alleged that Pemaram had been hit by a bull and he was not present at the spot. One witness was examined in defence. After hearing the arguments advanced by the public prosecutor and the defence counsel and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above by the impugned judgment dated 22.06.1990, which is assailed in this appeal.

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Shri J.S. Choudhary, learned Senior Counsel assisted by Ms. Sampatti Choudhary, Advocate vehemently and fervently urged that the entire prosecution case is false and fabricated. The FIR (Ex.P/4) was lodged after gross and unexplained delay of more than 36 hours of the alleged incident. The formal FIR which was registered on 30.11.1988 was forwarded to the Magistrate as late as on 01.12.1988 i.e., after more than 48 hours. The prosecution has offered no explanation whatsoever for this gross and undue delay in forwarding the report to the Magistrate. The prosecution has claimed that the deceased Pemaram was assaulted and received the fatal head injury on 28.11.1988 in the evening at about 6 O’ Clock. He urged that looking to the nature of injury, as described by the medical jurist, there was no possibility that the deceased could have walked home without any assistance and thus, the statement of the child witness Pattu (PW.7) wherein she made such assertion is absolutely unbelievable and demolishes her evidentiary worth. He urged that

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(5 of 21)

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the evidence of medical jurist clearly establishes that the deceased could not have survived for more than two days after receiving the severe head injury. He further contended that the star prosecution witness Sushri Pattu has alleged that the accused gave blow of a thick wooden stick on the head of the deceased. As per Shri Choudhary, if any injury had been inflicted by a thick stick on the head of the victim, it would have resulted into a lacerated wound. However, the medical jurist Dr.Gulam Rakbani noted presence of only a swelling on the temporoparietal region of the deceased. Thus apparently, the injury was not received by the deceased in the manner alleged by the prosecution. He further contended that looking to the gravity of the injury suffered by the deceased, there was no possibility of him having survived for almost 48 hours as is alleged by the prosecution witnesses. He thus, urged that the prosecution case deserves to be discarded and the accused is entitled to be acquitted.

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Without prejudice to the above submissions, Shri Choudhary urged that if at all the accused is held responsible for causing the solitary head injury to the deceased then too, the offence would not travel to beyond Section 304 Part II IPC. He submitted that the accused has remained in custody for a significant duration and thus while toning down the offence, the accused deserves to be sentenced to the period already undergone by him looking to the fact that the incident took place almost 34 years ago.

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Learned Public Prosecutor on the other hand, vehemently and fervently opposed the submissions advanced by Shri Choudhary. He submitted that the prosecution witnesses hail from

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(6 of 21)

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a poor rural background and had no means of transportation. Thus, the delay in lodging the FIR is well-explained. The family members of Pemaram did not understand the gravity of the injury suffered by him and thus, he was not taken to the hospital immediately. The victim was of stout composition and thus, he could survive for such a long duration despite being severely injured. However, the fact that the blow on the head of the deceased was inflicted with great force was duly proved by the medical jurist. The impact of the blow was so forceful that it shattered the temporoparietal bone of the deceased and the brain matter came out from the wound and thus apparently, the accused inflicted the head injury to the deceased with the intention as well as knowledge of killing him. Learned Public Prosecutor further submitted that the evidence of child witness Pattu (PW.7) is absolutely trustworthy and reliable. She had no motive whatsoever to falsely implicate the accused appellant for the assault made on her father. Merely because, the FIR was lodged with some delay, that cannot be a reason to discard the testimony of a reliable eyewitness. On these grounds, learned Public Prosecutor implored the Court to dismiss the appeal and affirm the conviction of the appellant as recorded by the trial court.

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We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have minutely re-appreciated the evidence available on record.

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(7 of 21)

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Before appreciating the evidence of the material prosecution witnesses i.e,. the first informant Lumbaram (PW.5), the child eyewitness Pattu (PW.7) and Smt.Meera (PW.8), wife of the deceased, we would like to advert to the statement of the medical jurist Dr. Gulam Rakbani (PW.9) who was a member of the Medical Board which conducted autopsy upon the dead body of Shri Pemaram at the Mahatma Gandhi Hospital, Jodhpur on 01.12.1988. The doctor stated that the procedure commenced at 12:45 PM. The Board noticed a swelling admeasuring 6 cm x 4 cm on the left temporoparietal region of the head. There was a lacerated wound on the left elbow and an abrasion on the left knee. When the site of the injury was opened, sub-scalp haematoma was noticed on the left temporoparietal region. Left side parietal bones were shattered into pieces. The size of the fracture was 6 cm x 5 cm. Subdural haematoma was present beneath the fracture. Brain matter was coming out. The doctor opined that Pemaram must have expired about 24 hours before the postmortem examination was undertaken. Even if the opinion of the doctor regarding time of death is considered to be an estimate, apparently Shri Pemaram must have passed away some time on 30.11.1988. In cross-examination, the doctor stated that the injury no.1 was a swelling and there was no noticeable bleeding on the wound. The doctor clearly stated that even if Pemaram had been provided immediate treatment, he would not have survived. The doctor also stated that the injuries suffered by the victim must have been caused about 24 hours before the postmortem examination was carried out.

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Though it is true that the medical jurist cannot give precise opinion regarding the time of injuries but the estimated time of injury can vary a few hours on either side and not more. In the present case, the medical jurist stated that the injuries suffered by the victim must have been caused about 24 hours before the postmortem was conducted. Thus, even believing that time of injuries was given as an estimate, there is no doubt in our mind that the incident could not have taken place on 28.11.1988 as alleged by the first informant Shri Lumbaram and the witnesses Pattu and Meera. There is a strong reason for drawing this conclusion. We are of the firm view that looking to the nature of head injury suffered by Shri Pemaram, there was no possibility that he could have regained senses immediately after receiving the blow. Furthermore, the very possibility of his surviving for almost 36 hours despite the grave head injury was next to impossible. The medical jurist also opined so.

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Having held so, we now proceed to discuss the evidence of material prosecution witnesses. The incident was allegedly witnessed by child witness Pattu (PW.7). She stated that she and her father were returning home after collecting wheat from the Village Hatundi. When they reached near the dhani of Motaram, accused Mohanram came with a thick wooden stick and exhorted that he would beat Pemaram. She and her father proceeded towards the dhani of Motaram. Mohanram followed them and gave a stick blow on her father’s left hand. Her father entered into the dhani of Motaram. However, Mohanram pursued him there and gave a stick blow on the head of Shri Pemaram who fell down. Even while her father was lying down, the accused Mohanram

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(9 of 21)

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gave another blow of the stick on his right hand. No one was present in the dhani. She and her father raised a hue and cry upon which Mohanram ran away with the weapon. A woman named Noji was sitting in the nearby dhani who did not come there. She left her father in the dhani of Motaram and went to her house for calling her mother. She told her mother of the incident and both rushed to the place of incident. Her mother massaged her father on which, he regained senses and started complaining that he had been beaten badly. She and her mother picked up her father and brought him back home. Then, she went back to the dhani of Motaram to collect the wheat. She further alleged that ten days before the incident, Mohanram had caused his goats to trespass into their field. She opposed his attempt upon which, Mohanram tried to hit her with a kassi but she snatched it and took it to their home. She told about this incident to her father on which, he went to the house of Mohanram and rebuked him.

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In cross-examination, the witness stated that they went to village Hatudi and collected the wheat. Half of the wheat was carried by her father and she carried the remaining half. They did not stop anywhere. The incident took place on the way from village Hatudi to their dhani. The dhani of Motaram was at a distance of 200 pavandas from the road. Dhanis of Jetharam, Durgaram, Anaram, Motiram and Bheraram were located nearby the dhani of Motaram and the owners of these dhanis resided therein. Their dhani was at a distance of about 200-300 pavandas from the dhani of Motaram. Mohanram’s field was located just near the road. He had planted Bajri in the field. When Mohanram approached them on the road, they immediately diverted towards

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(10 of 21)

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the dhani of Motaram. She tried to intervene when the accused launched the assault on her father and in this process, she too received an injury on her head. Her father fell down on receiving the injury but he was talking. When she left her father and proceeded to her dhani, it was still day light. No one was present in the nearby dhanis and thus, she did not go there to get help or make a complaint regarding the assault made on her father. She told Noji of the incident but she refused to come to their aid. She and her mother lifted/provided support to her father and brought him back to their dhani. At that time, her father was speaking slowly. About 2-4 people in the village own tractor. Two are with Rajput’s families, one is with Vishnoi family and one is owned by a Jat who is related to the accused. After her farther had been brought back, he told that he should be taken to the hospital. The tractor owned by Rajput was at Phalodi. Dhanis of Megharam and Motiram are at a distance of about 5 Kms from their dhani. Megharam was her Mama and Lumbaram was her Mama’s son and both had appeared as witnesses in the case. Lumbaram, Kishan Singh, Bheraram and two-three more persons had come to their dhani to have a look at her father and she requested them that her father should be taken to the hospital. Her father kept on speaking throughout the night. She could not say as to what was the frequency of buses which used to come to their village. Her Mama Megharam came to their house at about 8 O’ Clock. They made efforts to search for means of transportation but could not succeed. Her father was taken to the hospital after eight quarters. He was not present at the home for whole of Tuesday and was taken to the hospital in the early hours. The tractor owned by a Vishnoi was arranged and her father was taken to the hospital

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(11 of 21)

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therein. The most pertinent admission as appearing in the evidence of Pattu (PW.7) is that after the incident her father remained at their dhani only for one night. She refuted the defence suggestion that her father was kept in the dhani for two nights and one day. She was confronted with her police statement regarding numerous contradictions and omissions. A specific suggestion was given to the witness that as a matter of fact, her father had been hit by a bull which she denied.

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PW.8 Meera, being the wife of the deceased stated on oath that the incident took place about a month ago. She was working in her field. Her husband (the deceased Pemaram) and her daughter Pattu had gone to fetch wheat from the ration shop. There was still an hour to go for sunset when her daughter came back running and stated that Shri Pemaram had been beaten in the dhani of Motaram. She, along with her daughter rushed there and saw her husband lying down on the ground. Injuries were noticeable on both his hands and head. She massaged her husband for a while and asked him as to who had beaten him on which, he stated that Mohanram had beaten him by a wooden club. She and her daughter Pattu, lifted Pemaram and brought him back to their dhani. No one was available in the dhani of Motaram. She gave hot fomentation to her husband whereby, he recovered and started speaking. She sent her other daughter to summon her nephew Lumbaram who came on the next morning whereas her brother Megharam arrived on the next evening. Even when her nephew Lumbaram and her brother Megharam came, her husband was speaking. Her husband was taken to the hospital on the morning of the third day after the incident as his condition had

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(12 of 21)

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deteriorated. She stated that the motive for assault was an incident which took place a few days earlier when Mohanram put his goats for grazing in their field and her daughter Pattu disallowed him from doing so. In this process, an altercation took place between her husband Pemaram and the accused Mohanram. Her husband expired at the hospital. She stated that when her husband was brought home, Kishan Singh and few other people came there.

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In cross-examination, the witness stated that after her husband was brought back to the dhani, Lumbaram Jat, Kishan Singh and Bheraram came there. She requested these people to arrange for transportation. Whether these people tried to procure transportation or not, she could not say. She did not tell these people that they should call her nephew and brother. Lumbaram came to her dhani even before her daughter was sent to fetch him. Lumbaram went to the police station on the very same day he had come to her dhani. At that time, her husband was speaking. After Lumbaram left, her husband vomited blood and stopped talking. This event took place on the very day her husband had been assaulted. She then modified her stand and stated that her husband continued to speak till he was taken to the hospital. Only swelling was visible and there was no bleeding from the head injury suffered by her husband. When she went to the dhani of Motaram, she could see blood lying there. She denied the defence suggestion that when she went to the dhani of Motaram, her husband was lying unconscious. The police recorded her statement four days after the incident. She did not tell the police that her husband was lying unconscious when they reached

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there. She denied the portion d to [k of her police statement (Ex.D/4) wherein it is pertinently recorded that when she and Pattu reached dhani of Motaram, her husband was lying unconscious. A suggestion was given to the witness that as a matter of fact, her husband received injuries as a result of being hit by a bull. However, she denied the suggestion. She also denied the suggestion that her husband never spoke after receiving the injuries.

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Lumbaram was examined as PW.5. He stated that Pemaram was his uncle (Phupha). He went to the house of Pemaram on 29.11.1988 to meet him. When he reached there, Pemaram was injured and complained that he had gone to fetch ration and was coming back after picking up 50 Kgs of wheat. He reached near the dhani of Motaram at which point of time, Mohanram came there and hit him with a thick wooden club. He fell down as a result of the blow. Even thereafter, the accused continued to assault him. Pemaram also told that his daughter Pattu was accompanying him at the time of the incident. He and Pattu shouted on which, the accused ran away from the place of incident. Pattu and his wife Meera came and took him home. Pemaram requested that he did not have the means to go the hospital and the matter should also be reported to the police. On this, Lumbaram proceeded to the police station and lodged the FIR (Ex.P/4). His uncle Megharam took Pemaram to hospital on the evening of 29^th November. The witness then moulded his version and stated that Pemaram was taken to the hospital on 30^th November. Three brothers of Pemaram are alive of them, two are Gokalram and Amararam. The dhanis of Pemaram’s brothers are

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located nearby his dhani and they live in these dhanis with their families. When he reached the house of Pemaram on 29.11.1988, Pattu and four other daughters of Pemaram were present at his house. When the witness reached there, two more persons were sitting there whom he could not identify. A little later, Bheraram Vishnoi and Kishan Singh Rajput came there. He stayed in the house of Pemaram till 11 O’ clock on the next morning. Jetharam owns a tractor and his dhani is located just near to the dhani of Pemaram. Three-four other persons own tractors in the village but none was available on that day. He and his uncle also own tractors. However, these were also not available as they had been sent out for farming operations. Camel carts are available in the village of Pemaram. The witness denied the suggestion that he made no effort whatsoever to take Pemaram to the hospital. He stated that he went to the nearby dhani for bringing a tractor but nobody was prepared to assist him. They did not have money and thus, camel cart could not be engaged. He did not take Pemaram to Jodhpur by availing the bus services because he did not have money to do so. He went to the police station on a bicycle. The witness was confronted with some contradictions/omissions viz-aviz his sworn testimony and the previous statements as well as the FIR.

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PW.6 Megharam stated that Pemaram’s daughter came to call him. He reached the house of Pemaram on 29^th in the night at about 2 O’ Clock. Pemaram was lying down at that time and Lumbaram was sitting besides him. Three-four other people from the village were also sitting there. At that time, the condition of Pemaram was normal. He was speaking. He narrated the manner

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in which the incident happened. Pemaram requested that he should be taken to the hospital and the matter should be reported to the police. Lumbaram proceeded to the police station on the morning of 30^th . Pemaram was boarded on to the afternoon bus which reaches Khedapa at about 1 O’ clock. However, Lumbaram and police party met them on the way and thus, Pemaram was shifted into the police jeep and was being taken to the hospital but, he expired on the way. In cross-examination, the witness stated that Lumbaram was his nephew. Lumbaram’s father had gone to some other village on the day of the incident. Lumbaram casually went to the village of Pemaram for collecting some articles and proceeded to the house of Pemaram upon hearing about the incident. Pemaram’s daughter approached him at about 12 O’ Clock in the afternoon. He was in his field at that time. He reached home late in the evening. Till then, the child was sitting there. It takes about an hour in reaching Pemaram’s dhani from his dhani. When he reached the dhani of Pemaram, Kishan Singh Rajput and Bheraram were present there. Lumbaram, Pemaram’s wife and Pemaram’s daughters were also present there. The witness denied the suggestion that Lumbaram told him regarding the assault made on Pemaram. He also denied the suggestion that he reached the house of Pemaram on 30^th morning and suggested that the condition of Pemaram was precarious and he should be immediately taken to the hospital. The witness was extensively confronted with his previous police statement (Ex.D/2) regarding omissions/contradictions.

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PW.1 Kishan Singh stated on oath that on 01.12.1988, the police inspected the place where the incident took place in his

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presence. Motaram and Pattu, daughter of Shri Pemaram were also present at the time of site inspection. Pattu was assisting the police in the spot inspection. They did not go inside the house and undertook the spot inspection of the outer areas. In crossexamination, the witness stated that no marks of violence were visible where the police undertook the spot inspection. Wheat was not scattered at the place of incident.

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PW.2. Gularam did not support the prosecution case and was declared hostile.

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PW.3 Karnaram, PW.4 Omprakash, PW.10 Sohanlal and PW.13 Chandan Singh are all police witnesses and their evidence is formal in nature.

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PW.11 Bheraram being a Panch witness, did not support the prosecution case and was declared hostile.

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PW.12 Bhinyaram also did not support the prosecution case and was declared hostile.

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PW.14 Babulal Joshi was posted as SHO Police Station Khedapa at the relevant point of time. He stated that Lumbaram (PW.5) submitted the written report (Ex.P/4) before him on 30.11.1988 on the basis whereof the formal FIR (Ex.P/13) was registered. After registering the FIR, he along with other members of the police team started for the place of incident. On the way, he noticed Shri Pemaram being taken in a bus. The condition of Shri Pemaram seem to be precarious and he was unconscious. He

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was boarded on to the police jeep and was taken to the Baori Hospital where the doctor examined and noted that Shri Pemaram had expired. The dead body of Shri Pemaram was taken to Jodhpur and was kept in the mortuary of Mahatma Gandhi Hospital. Thereafter, formal investigation was undertaken. No signs of violence were noticeable at the place of incident because it happened three days ago.

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The witness was cross-examined in relation to delay in dispatch of the formal FIR but he could not explain the same. He admitted that numerous dhanis including those of the brothers of the deceased were located nearby the place of incident. When he reached the place of incident, Motaram was present there. He did not go inside the dhani of Motaram. He made enquiries from the residents of the nearby dhanis but no one was prepared to give a statement. The remaining evidence of the witness is more or less formal in nature.

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Having considered the tenor of the statements of the witnesses, we now proceed to draw the following conclusions therefrom:-

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(i). that as per the FIR (lodged on 30.11.1988), the incident took place on 28.11.1988. However, the child witness Sushri Pattu (PW.7) admitted in her testimony that her father was kept at home only for one night after the incident. She further stated that her younger sister was sent to fetch Lumbaram who reached their house on the very day of the incident. Lumbaram (PW.5) stated that he reached the house

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of Shri Pemaram on 29.11.1988. These grave contradictions regarding the date of the incident go to the root of the matter and create a grave doubt upon the credibility of the prosecution case.

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(ii). We have carefully considered the evidence of medical jurist Dr. Gulam Rakbani (PW.9). Considering the nature of injuries as noticed by the doctor while preparing the postmortem report (Ex.P/8) wherein, it is clearly mentioned that the temporoparietal bones of the deceased were crushed into pieces and the brain matter was coming out from the membrane, we are of the firm view that there was no possibility of Shri Pemaram having remained conscious or having survived for two days despite receiving such a serious head injury. The doctor categorically stated that the age of the injuries which were noticed in the postmortem report was about 24 hours. As the postmortem was carried out on 01.12.1988, apparently, the injuries must have been received on 30.11.1988 or 29.11.1988 at best. Hence, there is an absolute falsehood in the claim of the witness Pattu (PW.7), Lumbaram (PW.5) and Meera (PW.8) that Pemaram was assaulted on 28.11.1988. Apparently, Pemaram must have received the injuries some time in the late hours of 29.11.1988 whereafter, the family members were called.

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(iii). It has come in the evidence of the eyewitnesses that the dhanis of Pemaram’s three brothers are located just near to his dhani. Thus, there was no rhyme or reason as to why none of these near relatives were called immediately after

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the incident. This significant omission creates a further doubt on the veracity of allegations set out in evidence of Pattu (PW.7) and Meera (PW.8). It is not the case of prosecution that Pemaram and his brothers were not on good terms and thus, instead of going to the distant dhanis of Lumbaram (PW.5) and Megharam (PW.6), the wife of the deceased, in the natural course of events, would be expected to approach the brothers of Pemaram who live nearby so that medical care be provided to him at the earliest.

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(iv). From the tenor of the evidence of Lumbaram (PW.5) and Magharam (PW.6), we are of the firm view that the gross delay in lodging of the FIR has not been explained. In addition thereto, we may state that the formal FIR (Ex.P/13) which was registered on 30.11.1988 reached the Court of the concerned Magistrate on 01.12.1988 which is again after a significant delay. Though, under ordinary circumstances, the delay in forwarding the formal FIR to the Court is not fatal but in the present set of facts which we have narrated above, this delay assumes great significance and creates a doubt on the genuineness of the entire prosecution case.

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(v). The material prosecution witnesses persistently tried to claim that Pemaram was conscious and was speaking for almost 48 hours after receiving the injuries. However, considering the nature of the injuries suffered by him and the evidence of the medical jurist, we are of the firm view that there was no possibility whatsoever that the deceased would have been conscious or remained in a position to speak even

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immediately after the incident what to say of 48 hours thereafter. We feel that this story has been created by the prosecution in order to somehow or the other fortify the flimsy theory that Shri Pemaram made an oral dying declaration before the witnesses. This is yet another circumstance which creates a grave doubt on the genuineness of the prosecution case.

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(vi). The FIR has been lodged after significant unexplained delay and we are of the firm view that the date and time of the incident was intentionally concealed by the prosecution. The presence of the child witness Pattu at the place of the incident is doubtful. The very fact that Shri Pemaram could have suffered the injury as described in the postmortem report (Ex.P/8) by the blow of a wooden stick is doubtful in view of the fact that the medical jurist did not notice any laceration at the site of the head injury.

¶103

In wake of the discussion made hereinabove, we are of the firm view that the evidence of the material prosecution witnesses suffers from significant infirmities, is full of loopholes and doubtful circumstances which makes it difficult for this Court to place implicit reliance thereupon. The entire prosecution case, in our opinion is made up and concocted and the accused seems to have been framed for the crime owing to prior enmity.

¶104

Resultantly, we are inclined to reverse the impugned judgment and acquit the accused by giving him the benefit of doubt. Consequently, the impugned judgment dated 20.06.1990

¶105

(21 of 21)

¶106

[CRLA-210/1990]

¶107

passed by learned District & Sessions Judge, Jodhpur in Sessions Case No.23/89 is hereby quashed and set aside. The accused appellant is acquitted of the charge. He is on bail. He need not surrender. His bail bonds are discharged.

¶108

However, keeping in view the provisions of Section 437-A Cr.P.C., the accused appellant is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.

¶109

Record be returned to the trial court forthwith.

¶110

(FARJAND ALI),J

¶111

(SANDEEP MEHTA),J

¶112

Sudhir Asopa/-

Mohan Ram v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Mohan Ram v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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Coram

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