Rajasthan High Court
Bherulal And Anr vs State Of Rajasthan Through Pp on 31 January, 2023
Bench: Pankaj Bhandari, Ashutosh Kumar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 1145/2016
1. Bherulal, S/o Bhanwarlal, R/o Mali Mohalla, Ramganj Mandi,
District Kota.
2. Pooran @ Rajesh, S/o Bherulal, R/o Mali Mohalla, Ramganj
Mandi, District Kota. (Both at present in Central Jail, Kota)
----Accused Appellants
Versus
State Of Rajasthan through PP
----Respondent
Connected With
D.B. Criminal Appeal No. 1086/2016
Jaheer Mohammad, S/o Subhan Khan, R/o Miyana Police Station
Kotwali, Baran, AT present Aapa ka Makaan, Cement Road, Near
Pani Ke Tanki, Ramganjmandi District Kota. (At present in
Judicial custody at Distt Jail, Kota)
----Accused-Appellant
Versus
State Of Rajasthan through PP
----Respondent
D.B. Criminal Appeal No. 1525/2016
1. Tarun @ Tejmal S/o Ram Lal, R/o Kundaliya, Police Station
Jirapur, Madhya Pradesh, At Present Bazar No.3, Near
Sharab Theka, Ramganjmandi, District Kota. At Present
Accused Appellant Is Confined In Central Jail, Kota.
2. Ram Lal, S/o Bhanwar Lal, R/o Kundaliya, Police Station
Jirapur, Madhya Pradesh, At present Bazar No.3, Near
Sharab Theka, Ramganjmandi, District Kota.
(At present accused appellants are confined in Central Jail,
Kota)
----Accused-Appellants
Versus
State Of Rajasthan through PP.
----Respondent
(Downloaded on 02/02/2023 at 11:44:25 PM)
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For Appellant(s) : Mr. Govind Prasad Rawat
Mr. Dhananjay Sharma for Sudarshan
Laddha
Mr. Manish Sharma
For Complainant(s) : Mr. Sajid Ali
For State : Mr. Javed Choudhary, Addl. GA
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
Judgment
Judgment reserved on :: 18/01/2023
Judgment pronounced on :: 31/01/2023
By the Court::(Per Hon'ble Pankaj Bhandari, J)
1. Appellants have preferred these appeals aggrieved by
judgment of conviction and sentence dated 11.08.2016 passed by
Addl. Sessions Judge, Ramganj Mandi, District Kota whereby
appellants have been convicted for offence under Sections
302/149, 147, 148, 341 IPC. For under Section 302 IPC to suffer
life imprisonment and to pay fine of Rs.5,000/-. In default of
payment of fine, to further suffer rigorous imprisonment for two
months. Under Section 147 IPC, to suffer simple imprisonment for
two years. Under Section 148 IPC, to suffer simple imprisonment
for three years. Under Section 341 IPC, to suffer simple
imprisonment for one month. All the substantive sentences have
been ordered to run concurrently.
2. Briefly stated the facts of the case are that the incident
took place on 30.09.2012 at 9:45 -10:00 pm. On 01.10.2012 at
07.30 am, PW-11 (Ashok Kumar) submitted a written report at
Government Hospital, Jhalawar. Police on the basis of this
information registered the case under Sections 147, 341, 302/149
IPC against the appellants and other co-accused and arrested the
accused appellants. Police after due investigation, submitted
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challan against the accused appellants and other co-accused under
Sections 147, 148, 341, 302/149 IPC. Learned trial Court framed
charges against the accused appellants and other co-accused
under Sections 147/148, 341 and 302 or 302/149 IPC. Appellants
denied the charges, on which prosecution examined as many as
23 witnesses and 51 documents were exhibited. Accused-
appellants were examined under section 313 Crpc wherein they
denied the prosecution case. On behalf of defence, one witness -
DW-1 Gaurav Rai was examined and 3 documents were exhibited.
Trial Court after hearing both the parties, convicted the accused
appellants and other co-accused under Sections 147, 148, 341,
302/149 of IPC. Aggrieved by which, present appeals have been
filed.
3. It is contended by counsel for the appellants that there
is delay of about ten hours in lodging of FIR which has not been
explained by the prosecution, even though police station was at a
distance of mere 150 meters from the place of occurrence. It is
also contended that there is delay of more than one day in the
receipt of FIR by the Magistrate, which further creates a doubt on
the authenticity of FIR. It is further contended that the written
report (EX.P-16) has been received at 07:30 am on 01.10.2012.
The FIR was registered at 01.30 pm on the same day but, the
copy of FIR was received by the Magistrate at 03.00 pm on
02.10.2012 which creates a doubt on the authenticity of the FIR.
It is also contended that even though on the date of occurrence,
there was a Kavi Sammellan in the market place near the alleged
place of occurrence wherein many people were present yet none
of them were produced as independent witnesses.
(4 of 11) [CRLA-1145/2016]
4. It is contended by counsel for the appellant-Jaheer that
PW-7 (Parwez Alam) has specifically stated in his examination-in-
chief that Jaheer was not involved in the incident and he was not a
member of the unlawful assembly. He was only an employee in
the shop of Bherulal Tailor. It is also contended that it is not
established that the shirt which was recovered at the instance of
Jaheer belonged to Jaheer as he was not asked to wear the same.
It is also contended that the scissor is said to have been recovered
from Jaheer having human blood but the blood group was
inconclusive.
5. It is contended by counsel for the appellant-Tarun that
no recovery has been effected from Tarun. There is no overt act
assigned to him. It is also contended that in the FIR, name of four
persons-Bherulal, Ramlal, Pooran and Jaheer is mentioned. Name
of Tarun is not mentioned in the FIR. Hence, he has been falsely
implicated in this case.
6. It is contended by counsel for the appellant-Ram Lal
that there is no allegation against Ram Lal of causing injury with a
hockey stick, whereas a hockey stick is said to have been
recovered at his instance. At the time of recovery of the hockey
stick, it was mentioned by the investigating officer that there was
no blood stains on the hockey stick. However, in Ex.P-20, human
blood is said to be found on the hockey stick of group-AB. It is
also contended that no overt act is assigned to Ram Lal.
7. It is contended by counsel for the appellant-Bherulal
that there is no recovery from Bherulal. It is contended that there
is allegation against Bherulal of causing injury with a scissor.
However, no scissor has been recovered at his instance.
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8. It is contended by counsel for the appellant-Pooran that
a scissor has been recovered at his instance but no blood was
detected from scissor as per FSL report (Ex.P-21).
9. It is also contended by counsel for the appellants that
eye witness-Parwez Alam (PW-7) has turned hostile. Similarly,
Rambabu Gupta (PW-9) who is said to have been the first person
to reach the place has also turned hostile. It is further contended
that PW-10 (Abhay Jain) is also not a reliable witness as he has
not mentioned of having witnessed the incident. With regard to
complainant-Ashok Kumar (PW-11), it is contended that he has
reached the place of occurrence after the incident had taken place
and thus, he can also not be considered as an eye witness. It is
further contended that in the FIR, there is mention of two
unknown persons. In that case, it was the duty of prosecution to
conduct test identification parade. Not holding a test identification
parade is a serious lapse on the part of the prosecution. Reliance
in this regard placed on Lakhwinder Singh vs. State of Punjab
AIR 2003 SC 2577.
10. It is also contended by counsel for the appellant that
one of the scissors was recovered from an open place and such
recovery cannot implicate the accused. Reliance in this regard
placed on Salim Akhtar @ Mota vs. State of U.P. (2003) 5
SCC 499.
11. Learned counsel for the complainant has opposed these
appeals. It is contended that PW-7 (Parwez Alam) has not
completely turned hostile. He has simply stated that Jaheer was
not involved in the beating. As far as other accused are
concerned, he has specifically stated that Pooran was having a
scissor and Bherulal was armed with a hockey stick. Thus, the
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presence of Pooran and Bherulal as assailant is made out by the
statement of this witness. It is also contended that PW-10 (Abhay
Jain) is an independent witness who resided near the place of
occurrence and as per his statement, all the accused-Bherulal,
Pooran, Jaheer, Tarun and Ram Lal were involved in beating the
deceased. The car which was parked near the place of incident of
occurrence also belonged to this witness. It is argued that he is an
independent and natural witness who immediately came out of his
house and saw the incident. It is also contended that the deceased
has sustained as many as 12 sharp injuries and 18 abrasions. It is
argued that out of these injuries, internal injuries A,B,C which
were under injury No.1, 2 & 3 were of the depth of 8.8 cm, 10 cm
& 8 cm and as per the evidence of PW-21 (Dr. Anil Goyal), these
three injuries alongwith internal injuries were sufficient in the
ordinary course of nature to cause death.
12. We have considered the contentions and have carefully
perused the record as well as judgment passed by the Trial Court.
13. The FIR in this case was lodged at 7:30 am on
01.10.2012. The incident took place around 9:45 -10:00 pm on
the preceding night i.e. 30.09.2012. It is evident that a written
report of this incident was given by PW-11 (Ashok Kumar) at
Jhalawar Government Hospital. From the evidence, it is revealed
that the injured was taken to Ramganj Mandi hospital and from
there, he was referred to Jhalawar Hospital and when he reached
there, he was declared dead. The delay in lodging of FIR is thus
properly explained. It is also evident from the record that
information about the incident was given to the police immediately
after the incident and police also reached the spot. Investigating
Officer-Ghanshyam (PW-22) when he reached the spot, was
(7 of 11) [CRLA-1145/2016]
informed that the injured has been taken to the hospital. The
contention of counsel for the appellants that there is delay in the
FIR cannot thus be sustained.
14. As far as evidence is concerned, the incident took place
between at around 10:00 pm and PW-10 (Abhay Jain) whose
house overlooks the place where the occurrence took place, has
said in the evidence that around 10:00 pm, he was watching TV
when he heard a hue and cry. He came out from his house and he
saw the assailants hitting the deceased with hockey stick and
scissor type object. He has specifically stated that the persons
who were hitting the deceased were Bherulal, Pooran, Jaheer,
Tarun and Ram Lal. As far as veracity of this witness is concerned,
this witness is a very natural witness who is not related to either
side and he is the one who came out after hearing a hue and cry.
The incident took place near his own car just adjacent to his house
and there is no cross-examination to the effect that the incident
could not be seen by him.
15. Yet another witness PW-7(Parwez Alam) who was
declared hostile by the prosecution clearly states that Pooran,
Bherulal were having scissors with which they were beating the
deceased. He has stated that Bherulal was having a hockey stick
and he was hitting with that. He has also stated that Ram Lal and
his son were also there. However, he deposed that Jaheer was not
involved in the beating and for that reason, he was declared
hostile. As far as presence of Pooran, Bherulal, Ram Lal and his
son-Tarun is concerned, witness (PW-7) has deposed before the
court with regard to their presence. He has also said that Jaheer
was also present. So the presence of all five accused in this case is
also made out from evidence of Parwez Alam (PW-7). PW-16
(8 of 11) [CRLA-1145/2016]
(Shubham Porwal) is another witness who has witnessed the
incident. He has stated that he was going to see the Kavi
Sammelan and was sitting at a general store when five persons
gave beating to Dilip Porwal and the incident took place in front of
Prince Ladies Tailor and that he also recognised Bherulal, Pooran
and Tarun. He has also stated that he recognised the others by
face but did not knew their names.
16. PW-11 (Ashok Kumar) is yet another witness, who is
the complainant of this case and who is the elder brother of the
deceased. He has also stated that Bherulal, Pooran, Ram Lal,
Jaheer and Tarun were involved in beating the deceased. As per
the cross-examination of this witness, he has admitted that when
he reached the place of occurrence, the incident had taken place
and he has only seen the accused running from the place of
occurrence. PW-11 cannot be thus considered as an eye witness to
the incident. The fact that Ashok Kumar (PW-11) reached the
place of occurrence, appears to be correct as he is the person who
alongwith Ankit Shah took the injured to Ramganj Mandi Hospital
and from there, took him to Jhalawar Hospital and he is the one
who gave the written report at Jhalawar Hospital to the police. In
his examination-in-chief, he has named all the persons as
assailants. It is true that in the FIR, he has mentioned name of
Bherulal, Pooran, Ram Lal and Jaheer and two to three unknown
persons. However, in his examination-in-chief before the Court, he
has mentioned the name of all five persons.
17. We are of the considered view that PW-10 (Abhay Jain)
is an independent and a natural witness and nothing has been put
to him to doubt his veracity. He has specifically named all the five
appellants as persons who were involved in beating the deceased.
(9 of 11) [CRLA-1145/2016]
As far as recovery is concerned, the shirt recovered at the
instance of Jaheer was found stained with human blood of group-
AB. Blood group-AB was also found in the clothes belonging to the
deceased. Thus, the involvement of Jaheer in the incident is made
out. The contention of counsel for the appellant-Jaheer that it is
not established that the shirt belonged to him as he was not asked
to wear the shirt, has no significance as there is no requirement
under the Law to ask the accused to wear the clothes in order to
come to the conclusion that the clothes belong to him.
18. It is also evident that a scissor was also recovered at
the instance of Jaheer which was having human blood on it. The
shirt was recovered vide Ex.P-21 on the basis of information given
under Section 27 of Indian Evidence Act and the shirt was
recovered from a room that was in possession of Jaheer. Thus, the
recovery of shirt and scissor from Jaheer and the fact that they
were stained with human blood, as also the fact that shirt was
stained with human blood of group-AB which is the same as blood
group of the deceased, clearly connects him with the alleged
incident. The other recovery in this case is a hockey stick which
was recovered at the instance of Ram Lal. Ex.P-20 (hockey stick)
was recovered from the house of Bherulal, brother of accused-
Ram Lal. As per the FSL report, this hockey stick is also found to
be having human blood as was detected vide FSL report P-40.
Though PW-7 (Parwez Alam) has tried to save Jaheer by stating
that he was not involved in the incident but he has given evidence
to the fact that Jaheer was also present. The presence of Jaheer at
the place of incident is thus not denied by this eye witness. A
cumulative reading of statement of eye witnesses reveal that all
five persons were assailants in this case and with an object to get
(10 of 11) [CRLA-1145/2016]
rid of the deceased, they caused as many as 12 sharp injuries to
the deceased with scissors.
19. With regard to the motive for commission of the said
offence, PW-22 (Ghanshyam-I.O.) has exhibited Ex.P-42 to Ex.P-
58 regarding the monetary transactions between the deceased
and accused-Bherulal. It is also the case of PW-11 (Ashok Kumar)
that accused-Bherual was owing some money to the deceased and
he had promised to pay the money on the first of October but a
day prior to first of October, appellants eliminated the deceased.
From the photographs Ex.P-3 to P-6, it is evident that the incident
took place on the road, near a parked car and blood stains can be
seen on the car also. From the crime details form (Ex.P-11), it is
evident that incident took place at point-X and in the shop
belonging to appellant-Bherulal, there were blood stains found on
the floor. From the photographs of the shop also Ex.P-7 and P-8,
blood stains can be seen in the shop of the accused appellant-
Bherulal. From the site plan, it is also evident that house of
Prakash Jain is just adjacent to the place of occurrence. Abhay
Jain (PW-10) is the son of Prakash Jain. Thus, from the entire
evidence which is before the Court, it is evident that all the
accused-appellants were involved in the commission of offence
and have rightly been convicted for offence under Section 302 IPC
with aid of Section 149 of IPC.
20. Learned Trial Court has considered the entire evidence
and has not committed any illegality in convicting the accused-
appellants for the aforesaid offence. We are thus, not inclined to
entertain the present appeals and the same are accordingly
dismissed.
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21. Judgment of conviction and sentence dated 11.08.2016
passed by Addl. Sessions Judge, Ramganj Mandi, District Kota is
affirmed.
22. Accused-appellant-Tarun @ Tejmal S/o Ram Lal is on
bail. The bail bonds earlier furnished by the appellant-Tarun @
Tejmal S/o Ram Lal stands cancelled and the learned trial Court is
directed to take necessary steps for taking the accused appellant-
Tarun @ Tejmal S/o Ram Lal in custody for serving the remaining
sentence.
(ASHUTOSH KUMAR),J (PANKAJ BHANDARI),J
CHANDAN /
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