Bhima Ram vs State
2021 Latest Caselaw 17790 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 182/2019

Bhima Ram S/o Asha Ram, Aged About 38 Years, By Caste
Meena, Resident Of Indra Colony, Falna, Ps Falna, District Pali
(Raj.) (At Present Lodged In Distric Jail Pali)
                                                                  ----Appellant
                                   Versus
State, Through PP
                                                                ----Respondent


For Appellant(s)         :     Mr. Kaushal Sharma
For Respondent(s)        :     Mr. B.R. Bishnoi, AGC



          HON'BLE MR. JUSTICE SANDEEP MEHTA
       HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

                               Judgment

Date of pronouncement : 26/11/2021

Judgment reserved on :           20/11/2021



BY THE COURT : PER HON'BLE ANOOP KUMAR DHAND, J.

The instant appeal has been preferred by the accused-

appellant Bhima Ram under Section 374 (2) Cr.P.C. against the

judgment dated 04.05.2019 passed by the learned Additional

Sessions Judge, Bali District Pali in Sessions Case No.10/2015

whereby, the appellant has been convicted for the offences under

Sections 302, 323 and 341 of the IPC and under Section 4/25 of

the Indian Arms Act and he has been sentenced as under:-

Conviction for         Sentence             Fine Amount         Default in
the     offence        awarded                                  payment of
under Section                                                   fine
302 IPC            Life                     Rs.15,000/-         2 Months'
                   Imprisonment                                 Simple


                                      (2 of 12)                 [CRLAD-182/2019]


                                                               Imprisonment
 323 IPC          Two month's                        -                -
                 Simple
                 Imprisonment
 341 IPC         11 days Simple                      -                -
                 Imprisonment
 4/25 of the     One Year's S.I.           Rs. 5,000/-
                                                   15 days'
 Arms Act                                          simple
                                                   imprisonment

The period spent in judicial custody shall be adjusted in the

original imprisonment.

The facts relevant and necessary for disposal of the appeal

are noted hereinbelow:-

Poona Ram (informant) (P.W.1) lodged a written report

(Ex.P/1) on 26.10.2014, at the Police Station Phalana, District Pali

alleging inter alia that on 25.10.2014 at about 9:00 P.M., his

nephew Ramesh S/o Sona Ram Bheel was returning from 'Dasha

Mata Temple' towards his house when he reached behind the

Sanskrit School, Bhima Ram S/o Asha Ram Meena stopped him

and told that why he is defaming him. Bhima Ram further told

him that, "what is your problem, if I sit inside the Temple". After

saying this, Bhima Ram inflicted 2-3 knife blows on the stomach

of Ramesh, resulting which, his bowels (intestine) came out. At

that time Kalu Ram @ Chhagan Bheel was passing by, rushed to

rescue Ramesh, on which, Bhima Ram inflicted knife injuries on

stomach of Kalu Ram also. After that, the informant tried to

intervene. At that time, Bhima Ram was standing there with knife

in his hand. On seeing Poona Ram, Bhima Ram ran away from the

place of occurrence. Asha, sister of Ramesh, Mangi Lal and Raju

(Poona Ram's brother and nephew) also reached at the place of

occurrence and they all tried to catch Bhima Ram but they failed

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to do so. Kurta, wife of Bhima Ram and Bhagwanaram, brother of

Bhima Ram, who were present at the time of occurrence, also

escaped along with Bhima Ram. Poona Ram further stated in his

report that he took Ramesh to the Government Hospital, Bali for

treatment, from where, the injured was referred to MDM Hospital,

Jodhpur, and after 14 days of the incident, he expired. Kalu Ram

was also admitted at Vyas Hospital for treatment. Bhima Ram

inflicted knife injuries on the vital body part of Ramesh, resulting

which he succumbed injuries and he expired.

On the basis of said report, an FIR No.169/2014(Ex.P/2) was

registered at the Police Station Falana for the offences punishable

under Sections 302, 323, 341 of the IPC. The investigation was

assigned to Anil Kumar, SI. P.S. Falna, District Pali. After

concluding the investigation, a charge sheet came to be filed

against the accused-appellant for the offences punishable under

Sections 302, 323, 341 of the IPC and Section 4/25 of the Arms

Act. As the case was Sessions triable, the same was committed

to the Court of Additional Sessions Judge, Bali, District Pali, for

trial. The trial court framed charges against the accused-

appellant for the offences under Sections 302, 323, 341 of the

IPC and Section 4/25 of the Arms Act. He pleaded not guilty and

claimed trial. The prosecution examined as many as 17 witnesses

and exhibited 24 documents to prove its case. Accused was

questioned under Section 313 Cr.P.C. and was confronted with the

circumstances appearing against him in the prosecution evidence,

which he denied and claimed to have falsely been implicated in

this case. After hearing the arguments advanced by the

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prosecution and the defence and appreciating the evidence

available on record, the trial court proceeded to convict and

sentence the appellant as above by the impugned judgment.

Hence this appeal.

Learned counsel for the appellant vehemently and fervently

urged that the entire prosecution case is false and fabricated. He

further urged that the prosecution failed to prove the motive

behind the crime. He further urged that primarily, the case of the

prosecution was that there were illicit relations between the

appellant Bhima Ram and one Indra. They usually sat together

inside the Temple, to which Ramesh (deceased) objected.

Nonetheless, the prosecution failed to prove the existence of

relationship in the nature of an affair between Bhima Ram and

Indra. He further argued that even the parents of girl (Indra)

were also not examined by the prosecution.

Learned counsel further urged that Anil Kumar (P.W. 14), the

Investigating Officer of the case, admitted in his statement that

he failed to collect any evidence regarding motive of the appellant

for assaulting the deceased Ramesh. He further argued that

witnesses P.W.1 Poona Ram, P.W.2 Asha, P.W. 6 Raju and P.W. 7

Mangi Lal projected themselves as eye-witnesses of the

occurrence but they actually did not see the incident as are not

the eye-witnesses of the occurrence as all of them reached the

spot after the incident was over. He further urged that injured

Kalu Ram (P.W.3) stated in his statement that 3-4 persons came

at the place of occurrence but he was unable to identify them. He

further argued that it is a clear cut case in which none of the

(5 of 12) [CRLAD-182/2019]

witness was present at the spot at the time of the incident.

Further more, the prosecution is also not sure about the exact

time of incident because there are different versions of different

witnesses about the time of incident. As Some of witnesses in

their statements stated that incident occurred at 8:00 P.M.

whereas, some of them stated that the incident took place either

at 8:30 P.M. or 9:00 P.M.

Learned counsel further urged that the trial court has not

appreciated the evidence led by the prosecution in the right

perspective. He further argued that there are material

contradictions, improvements and omissions in the statements of

the witnesses. Lastly, he submitted that the findings recorded by

the trial court for convicting the accused-appellant for the

offences under Sections 302, 323, 341 of the IPC & Section 4/25

of the Arms Act are not justified in the facts as well as in the eye

of law.

Per contra, learned Public Prosecutor vehemently and

fervently opposed the submissions advanced by learned counsel

for the appellant. Learned Public Prosecutor urged that Kalu Ram

(P.W.3) was the injured eye-witness of the incident and the other

witnesses Poona Ram (P.W.1), Asha (P.W.2), Raju (P.W. 6) and

Mangi Lal (P.W.7) reached at the spot on hearing hue and cry of

deceased Ramesh and found that Ramesh and Kalu Ram were

lying there bleeding heavily. On enquiry, Ramesh told that Bhima

Ram inflicted knife injuries to him and Kalu Ram. 14 days after

the incident, Ramesh expired. It was also urged by learned Public

Prosecutor that Kalu Ram (P.W.3) has been examined by the trial

(6 of 12) [CRLAD-182/2019]

court as an injured eye-witness, who categorically stated that

Bhima Ram caused injuries to Ramesh by knife and when he tried

to save Ramesh, then Bhima Ram inflicted knife blows on him

resulting which, he also received injuries.

Referred to the statement of Dr. M.P.Joshi, who was

examined as P.W. 15. He conducted postmortem upon the body of

Ramesh and prepared Post Mortem Report (Ex.P/22). He opined

the cause of death to be shock and hemorrhage due to sharp

weapon injury on the abdominal region of the victim.

Dr. Sanjay Bedi and Dr. P.C. Soni were examined as P.w. 9

and P.W. 10. They proved the injury report (Ex.P/11) and X-ray

report (Ex.P/13) of the injured Kalu Ram. As per the FSL report

(Ex.P/21), human blood group 'B' was found on the clothes and

the weapon of offence i.e. knife, which was recovered at the

instance of the appellant vide Seizure Memo Ex. P/18, which was

proved by the witnesses Shakti Singh (P.w.12) and Roop Singh

(P.W.16). Lastly, he argued that the prosecution has proved its

case beyond reasonable doubt and hence, the trial court has

rightly convicted and sentenced the accused-appellant, therefore,

no interference is called for in the impugned judgment

We have given our thoughtful consideration to the

submissions advanced by the learned counsel for the appellant as

well as learned Public Prosecutor for the State and perused the

impugned judgment and the material available on record.

The injured eye-witness Kalu Ram (P.W.3) is the star witness

of the occurrence. He specifically stated in his evidence that about

one and half year ago at about 8:30 P.M. when he was going to

(7 of 12) [CRLAD-182/2019]

purchase some goods from the grocery shop, and when he

reached near the Sanskrit School, he found that Ramesh and

Bhima Ram were quarreling and Bhima Ram was carrying a flick

knife of about 8-10 inches. When he tried to intervene to break

up the fight, then Bhima Ram inflicted three knife blows to

Ramesh resulting which, his guts spilled out. Bhima Ram also

inflicted knife injuries upon Kalu Ram. Thereafter, family members

of Ramesh came and took him to Bali Government Hospital for

treatment, from where, he was referred to MDM Hospital,

Jodhpur. He remained hospitalized for 14 days after the incident

at the MDM Hospital, Jodhpur and passed away while undergoing

treatment. The witness also stated that when Bhima Ram inflicted

knife injuries to Ramesh, 2-3 persons came there, but he (Kalu

Ram) did not know their names. He further stated that he was not

aware about the reason of quarrel between the appellant and the

deceased. After inflicting injuries by Knife, Bhima Ram escaped

from the place of occurrence.

Kalu Ram (P.W.3) was cross examined but his testimony

remained unshaken. His presence at the spot was also mentioned

in the FIR (Ex.P/2), which was lodged by Poona Ram (P.W.1). The

testimony of Kalu Ram (P.W.3) has been corroborated by the

statements of other witnesses viz. Poona Ram (P.W.1), Asha

(P.W.2), Raju (P.W. 6) and Mangi Lal (P.W.7), who categorically

stated that the appellant inflicted knife blow upon the deceased

Ramesh as a result, his guts came out. All these witnesses stated

in their testimony that Ramesh told them that Bhima Ram came

in front of him and asked him that why he is defaming him and

thereafter, he caused three injuries by knife to Ramesh upon

(8 of 12) [CRLAD-182/2019]

which, Kalu Ram tried to save him then Bhima Ram inflicted knife

blows on him (Kalu Ram) also. Bhima Ram used to sit inside the

temple with a girl and Ramesh objected to this conduct and that's

why, the incident occurred. Ramesh was priest in the said 'Dasa

Mata Temple'. After the said incident, Ramesh was taken to Vyas

Hospital, from where, he was referred to Bangad Hospital, Pali

and then to MDM Hospital, Jodhpur for treatment but he expired

before reaching Jodhpur. His postmortem was conducted at the

MDM Hospital, Jodhpur. The appellant was arrested and recovery

of knife was effected at his instance vide Memorandum Ex.P/18.

According to FSL report Ex.P/21, blood group 'B' was found on the

knife and the same was matched with the blood group of the

deceased.

Dr. M.P. Joshi (P.W.15) conducted postmortem upon the

dead body of Ramesh and prepared the postmortem report

(Ex.P/22) and found the following injuries:-

1. Stab incised wound 2.5 cm X 1.2m X cavity deep on the left side of abdomen near iliac crest obliquely and coercion is producing out from the wound;

2. Stab incised wound 2.0 cmX0.6cmX cavity deep on the left side of chest at upper V 3 obliquely;

3. Abrasion 0.5 cmX0.5 cm on the left eye-brow lower V3 obliquely;

4. Abrasion 1.0 cmX0.5 cm on the left side lower lip near its angle.

The above mentioned injuries are ante-mortem in nature.

(9 of 12) [CRLAD-182/2019]

The cause of death was opined to be hemorrhage due to

injuries.

Dr. Sunil Bedi (P.W.9) examined the injured Kalu Ram on

26.10.2021 and prepared the injury report (Ex.P/11).

Dr. P.c. Soni (P.W.10) conducted X-ray of the injured and

prepared X-ray report Ex.P/13. Both these doctors have proved

that the injured Kalu Ram had sustained four injuries.

Shakti Singh and Roop Singh (P.W.15 & P.W.16) are the eye-

witnesses of the recovery of knife at the instance of the appellant.

They stated that knife was recovered at the instance o the

appellant from his residence.

After carefully scrutinizing the entire record of the case, this

Court does find any substance in the arguments advanced by the

counsel for the appellant that there was no motive of the

appellant to commit murder of deceased Ramesh and for inflicting

injuries to the injured Kalu Ram. It is well settled position of law

that for committing an offence motive is not sine-qua-non,

where the ocular evidence is very clear and convincing and the

role of the accused person in committing the crime is established

beyond all manner of doubt. Hence, the establishment of motive

is not a sine-qua-non for proving the prosecution case. The

Hon'ble Apex Court in the judgment of Yunis @ Kariya Vs. State

of Madhya Pradesh reported in AIR 2003 SC 539 held that

where the direct evidence regarding the assault is worthy of

credence and can be believed, the question of motive becomes

more or less academic. If the evidence of witness is credit worthy

then the question whether there is any motive or not becomes

wholly irrelevant. Motive is a thing primarily known to the accused

(10 of 12) [CRLAD-182/2019]

himself and it may not be possible for the prosecution in each and

every case to find out the real motive behind the crime.

Here in the present case, there is ample evidence on record

to establish that the appellant was having a flick knife with him at

the time of occurrence. He caused repeated knife blows in the

stomach of the deceased Ramesh and when the injured Kalu Ram

tried to intervene to save the deceased, then the appellant

inflicted four injuries on the person of the injured Kalu Ram. Such

act of the appellant clearly proves his intention and knowledge to

commit murder of deceased Ramesh.

The Hon'ble Apex Court considered this aspect in the case of

Pruthiviraj Jayantibhai Vanol vs Dinesh Dayabhai Vala

others passed in Criminal Appeal No.177/2014 decided on

26.07.2001 and held as under:-

"17. Ocular evidence is considered the best evidence unless there are reasons to doubt it.

The evidence of PW2 and PW10 is unimpeachable. It is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved. In the present case, we find no inconsistency between the ocular and medical evidence. The High Court grossly erred in appreciation of evidence by holding that muddamal no.5 was a simple iron rod without noticing the evidence that it had a sharp turn edge.

18. The aforesaid discussion leads us to the conclusion that the acquittal by the High Court

(11 of 12) [CRLAD-182/2019]

is based on misappreciation of the evidence and the overlooking of relevant evidence thereby arriving at a wrong conclusion. It is not a case where two views are possible or the credibility of the witnesses is in doubt. Neither is it a case of a solitary uncorroborated witness. The conclusion of the High Court is therefore held to be perverse and irrational. The acquittal is therefore held to be unsustainable and is set aside. In the nature of the assault, Section 304 Part II IPC as no application. The conviction of respondent nos. 1 to 4 by the Trial Court is restored."

Upon through appreciation of evidence, we are duly satisfied

that it has been proved by the prosecution that the written report

of the incident was lodged without any delay. The evidence of the

injured eye-witness Kalu Ram (P.W.3) clearly indicates the

intention and knowledge of the appellant to cause death of the

deceased. The other witnesses Poona Ram (P.W.1), Asha (P.W.2),

Raju (P.W. 6) and Mangi Lal (P.W.7) supported the prosecution

story to the hilt. Evidence of the eye-witness Kalu is fully

corroborated by the evidence of Dr. M.P. Joshi (P.W.15), the

postmortem report (Ex.P/22) and the FSL report (Ex.P/21). The

injuries caused by the appellant to the injured Kalu Ram were also

proved by Dr. Sunil Bedi (P.W.9) and Dr. P.C. Soni (P.W.10) and

the injury report Ex.P/11.

Thus, the medical opinion and the ocular testimony wholly

corroborate by each other. The minor contradictions and absence

of motive does not effect the prosecution case.

(12 of 12) [CRLAD-182/2019]

In view of the discussion made hereinabove, this Court is of

the opinion that the trial Court has not committed any error in

convicting and sentencing the appellant as above. The impugned

judgment dated 04.05.2019 passed in Sessions Case No.10/2014

does not suffer from any illegality, infirmity so as to warrant any

interference by this Court. Hence, there is no merit in the

criminal appeal and the same is hereby dismissed.

Record of the trial court be returned back forthwith.

                                   (ANOOP KUMAR DHAND),J                                (SANDEEP MEHTA),J

                                    4-Mamta/-









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