1987 Supreme(Raj) 808
RAJASTHAN HIGH COURT AT JAIPUR BENCH
S.N.Bhargava, G.K.Sharma, JJ.
State of Rajasthan - Appellant
Versus
Binno and Another - Respondent
D.B. Cr. Appeal No. 392 of 1980.
Decided On : 15-09-1987
In order to convict an accused person under section 302/34 IPC, the prosecution must prove that the accused person had the intention to cause death or bodily injury to the deceased.
Headnote:
CRIMINAL LAW - SECTION 302 IPC - DYING DECLARATION - EVIDENCE - SUFFICIENCY - ACQUITTAL OF CO-ACCUSED - SECTION 34 IPC - APPLICABILITY - INTENTION TO CAUSE DEATH OR BODILY INJURY - ESSENTIAL INGREDIENT.
Fact of the Case:
The case involved the death of Bhagwan Das, who was allegedly stabbed by the accused persons. The prosecution relied on the testimony of three eyewitnesses, but two of them turned hostile. The third eyewitness, Prabhu Singh, stated that he saw the accused persons surrounding Bhagwan Das and inflicting blows on him, but he did not see any of them using a knife. The prosecution also relied on the dying declaration allegedly made by Bhagwan Das, but there were several contradictions and omissions in the evidence of the witnesses who deposed about it.
Finding of the Court:
The court found that the prosecution had failed to prove the guilt of the accused persons beyond a reasonable doubt. It noted that the two other accused persons had been acquitted, and that there was no evidence that Dharma had used the hockey stick in his hand to inflict any blow on the deceased. The court also found that the dying declaration was unreliable due to the contradictions and omissions in the evidence of the witnesses who deposed about it.
Issues: 1. Whether the prosecution had proved the guilt of the accused persons beyond a reasonable doubt. 2. Whether the acquittal of the co-accused barred the conviction of Dharma under section 302/34 IPC. 3. Whether Dharma had the intention to cause death or bodily injury to the deceased.
Ratio Decidendi: 1. The court held that the prosecution had failed to prove the guilt of the accused persons beyond a reasonable doubt. It noted that the two other accused persons had been acquitted, and that there was no evidence that Dharma had used the hockey stick in his hand to inflict any blow on the deceased. The court also found that the dying declaration was unreliable due to the contradictions and omissions in the evidence of the witnesses who deposed about it. 2. The court held that the acquittal of the co-accused did not bar the conviction of Dharma under section 302/34 IPC, but that the prosecution had to prove that Dharma had the intention to cause death or bodily injury to the deceased. 3. The court held that the prosecution had failed to prove that Dharma had the intention to cause death or bodily injury to the deceased. It noted that Prabhu Singh had not seen any of the accused persons using a knife, and that the third companion who had not been named was not apprehended.
Final Decision: The court acquitted Dharma of the offences levelled against him and dismissed the State's appeal.
JUDGMENT
1. - These two appeals arise out of the judgment of Sessions Judge, Jaipur City, Jaipur, acquitting accused Binno, Vinay Kumar, Ballu and Sushil of the offence under section 302 and 302 r/w 34 IPC, and convicting accused Dharma @ Dharam Chand under section 302 r/w 34 IPC and sentencing him to imprisonment for life and a fine of Rs. 500/-, in default of payment of fine, to further undergo six months simple imprisonment. Hence, these appeals are being disposed of by this common judgment.
2. On the basis of Parcha Bayan (Ex. P. 1) recorded on 9-5-1978 at 1.40 AM of Kundu Mal (PW 1), FIR (Ex- P. 22) was registered at 2.15 AM on 9-5-1978. In the Parcha Bayan it had been mentioned that nephew of Kundu Mal(PWl), namely Bhagwan Das, was inflicted a knife blow by accused Dharma, Binno and Ballu and one more person near the shop of Prabhu Pan Wala Bhagwan Das was taken to the Hospital where he died and his dead body was kept in mortuary.
3. The police registered a case against the accused persons under section 302 read with Section 34 IPC. The Parcha Bayan was sent to the Police Station through Shri Ram, Head Constable and a report (Ex. P. 22) was chalked out at 2.15 AM.
4. After usual investigation, the police submitted challan against the accused persons in the court of Magistrate. The fourth accused un-named, could not be apprehended. The Magistrate committed the case to the court of Sessions Judge after trial, convicted and sentenced accused appellant Dharma as aforesaid, whereas acquitted Binno and Ballu.
5. Dharma accused has preferred Appeal No. 466/79, whereas State of Rajasthan has filed appeal against acquittal, being appeal No. 392/1980, against accused Binno and Ballu.
6. We have heard Mr N.L. Tibrewal, learned counsel for the appellant Dharma and Shri H.M.K. Wali, on behalf of accused Ballu; Shri Z. Naqvi, on behalf of Binno and learned Public Prosecutor. We have gone through the judgment of the trial court as also record of the case.
7. Prosecution has placed reliance on three eye witnesses viz., Prabbu Singh (PW-4), Raghuveer Vijay (PW-5) and Jasveer Singh (PW-6). Out of them, PW-5 Raghuveer Vijay and PW-6 Jasveer have not supported the prosecution evidence and they have been declared hostile.
8. Prabhu Singh (PW-4) stated on oath that PW-5 Raghuveer Vijay was employed at his betel shop and PW-6 Jasveer Singh used to reside close to his shop Accused Dharma came to his shop at about 1115 PM when he and his servant Raghuveer Vijay were sitting at the shop, while Jasveer was standing near the shop Accused Dharma and three others came to his shop. Accused Dharma had a hockey stick in his hand. He (Prabhu Singh) could not see anything in the hands of other three accused persons He identified the two boys who had come with Dharma to be Ballu and Binnu. The four accused persons surrounded Bhagwan Das and inflicted blows by fists and kicks. Dharma put the hockey-stick under the chin of Bhagwan Das. Bhagwan Das cried and went away The accused persons also went away. Prabhu was unable to say as to how deceased Bhagwan Das got injury on his left side. He has been cross-examined at great length, and he has stated that he had seen accused Dharma only putting the hockey stick under the chin of the deceased and did not see His statement was recorded in the same night at about 2:30 A.M. by the Police.
9. Prosecution has placed reliance on the evidence of dying declaration alleged to have been made by the deceased Bhagwandas in the presence of PW-11 Kundu Mal, PW-2 Ashok Kumar, PW-7 Ishwar Das and PW-8 Vanajmal.
10. In this regard PW-l Kundumal has stated that he was at his house and after hearing the cries of his brother Vanajmal. he came down and saw his nephew Bhagwan Das lying unconscious on the ground He was complete unconscious. He could speak and he told Kundu Mal and other persons present that he had been inflated knife blow by Dharma and h.s three companions Binno and Ballu Sindh, were his two companions and he did no disclose th
Click Here to Read the rest of this document
Back
