Rajasthan High Court - Jodhpur
Hukma Ram vs State on 19 April, 2022
Bench: Sandeep Mehta, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 298/2019
Hukma Ram S/o Rawat Ram, Aged About 55 Years, By Caste
Sirvi, R/o Bera Hadman Singh, Village Hanbawas Kalla, Jaitaran
Police Station, District Pali. (Lodged In Central Jail Jodhpur).
----Appellant
Versus
State of Rajasthan.
----Respondent
Connected With
D.B. Criminal Appeal No. 223/2019
1. Jai Ram S/o Rawat Ram, Aged About 52 Years,
2. Mangla Ram S/o Jassa Ram, Aged About 50 Years,
Both by Caste Sirvi, R/o Hunawas Kalla, Jaitaran Police
Station, District Pali.
3. Madan Lal S/o Moan Lal, Aged About 54 Years,
4. Banshi Lal S/o Ganesh Ram, Aged About 64 Years,
5. Bagduri W/o Madan Lal, Aged About 52 Years,
6. Narbada W/o Banshi Lal, Aged About 62 Years,
No.3 to 6 by Caste Baori, R/o Hunawas Kalla, Jaitaran
Police Station, District Pali.
7. Budha Ram S/o Poona Ram, Aged About 40 Years, By
Caste Sirvi, R/o Sandiya, District Pali.
(Lodged In Central Jail, Jodhpur).
----Appellants
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Vinod Sharma.
Mr. D.S. Udawat.
For Respondent(s) : Mr. R.R. Chhaparwal, PP.
Mr. B. Ray Bishnoi.
Mr. Tanay Jain.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
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JUDGMENT
Judgment pronounced on ::: 19/04/2022
Judgment reserved on ::: 21/02/2022
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellants herein have been convicted and sentenced as below vide judgment dated 05.08.2019 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Pali in Sessions Case No.32/2014 (C.I.S. No.815/2014):
Offences Sentences Fine Fine Default
sentences
Section 147 IPC 2 Years' R.I.
Section 148/120B IPC 3 Years' R.I.
Section 449/120B IPC 7 Years' R.I. Rs.10,000/- 2 Months'
Addl. R.I.
Section 302/149 R/w Life Rs.50,000/- 5 Months'
120B IPC Imprisonment Addl. R.I.
All the substantive sentences were ordered to run concurrently.
2. Being aggrieved of their conviction and sentences, the appellants have preferred these appeals under Section 374(2) Cr.P.C.
3. Since both these appeals arise out of a common Judgment, they have been heard and are being decided together.
4. Facts relevant and essential for disposal of the appeals are noted hereinbelow:
5. A written report (Ex.P/9) was submitted by Mahendra Singh (PW-4) to the SHO, Police Station Jaitaran, District Pali on 15.05.2012 at 09.00 am. at the place of incident in the village Hunawas Kalan alleging inter alia that his mother Smt. Sukhi Devi (Downloaded on 19/04/2022 at 08:24:08 PM) (3 of 23) [CRLAD-298/2019] was residing in the village Hunawas Kalan for the last 20-25 years. Hukma Ram was embroiled in a criminal case regarding assault on his wife Harkudi, who came to the house of Sukhi Devi seeking help. About 3-4 days ago, Hukma Ram, his son Dharma Ram, Jairam and Mangla Ram came to their house and insinuated as to how the members of the complainant party, who belong to a lower caste (Baori), had dared to offer food and shelter to a woman of Seervi community. They pledged revenge saying that the members of the complainant party would face dire consequences. On the night intervening 14/15.05.2012, as per usual practice, his mother Sukhi Devi and sister Ramkanya were sleeping on separate cots in the Bada (courtyard) when some assailants broke into the house. They discretely shifted the cot of Ramkanya to some distance and killed Sukhi Devi by inflicting blows of sharp weapons on her jaw, neck, hand and chest. On 15.05.2012, the informant went to his mother's house in the morning to collect milk on which, he saw that his mother had been murdered. He alleged that Madanlal, Madanlal's wife, Banshilal, Banshilal's wife and Dhagla Ram Bawri, residents of Hunawas Kalan were embroiled in land disputes with his mother Sukhi Devi and many cases had been registered between them. He expressed a suspicion that these persons might have conspired to get his mother murdered.
On the basis of this report, an FIR No.155/2012 (Ex.P/33) came to be registered at the Police Station Jaitaran, District Pali for the offences punishable under Sections 302 and 120B IPC and Section 3(2)(v) of the SC/ST Act. The usual investigation was (Downloaded on 19/04/2022 at 08:24:08 PM) (4 of 23) [CRLAD-298/2019] undertaken. The dead body of Smt. Sukhi Devi was subjected to autopsy through a Medical Board constituted at the Community Health Center, Jaitaran which issued the postmortem report (Ex.P/31) taking note of four sharp weapon injuries on the body of the deceased associated with fractures and excessive bleeding which led to her death. The crime scene was inspected. The police arrested the accused Hukma Ram and effected recoveries as usual. Statements of relevant witnesses were recorded under Section 161 Cr.P.C. Investigation was concluded and a charge- sheet was filed only against Hukma Ram for the offences punishable under Section 302 of the IPC and Section 3(2)(v) of the SC/ST Act. The learned Additional Chief Judicial Magistrate, Jaitaran, did not accept the police report and exercised powers under Section 190 Cr.P.C. to summon the accused Madanlal, Bagduri, Budha Ram, Banshilal, Narbada, Mangla Ram and Jairam as additional accused and also took cognizance for the offences punishable under Sections 450, 302, 147, 148 and 120B IPC and Section 3(2)(v) of the SC/ST Act vide order dated 05.06.2013. As the offence under Section 3(2)(v) of the SC/ST Act had been applied, the case was committed to the court of the Special Judge, SC/ST Act Cases, Pali for trial where charges were framed against the accused persons as below:
"3- cgl pktZ lquh tkdj i=koyh ij miyC/k lk{; ds vk/kkj ij vfHk;qDrx.k gqdekjke] t;jke] eaxykjke] cq)kjke dks /kkjk 147] 148 lifBr /kkjk 120 ch] 449 lifBr /kkjk 120 ch] 302@149 lifBr /kkjk 120 ch Hkkjrh; n.M lafgrk o lifBr /kkjk 3 ¼2½ ¼5½ vuqlwfpr tkfr@tutkfr ¼vR;kpkj fuokj.k½ vf/kfu;e ds vijk/k ds vkjksi ls vkjksfir fd;k x;k ,oa vU; vfHk;qDrx.k enuyky] ca"khyky] cxnqM+h] ucZnk dks /kkjk 147] 148 lifBr /kkjk 120 ch] 449 lifBr /kkjk 120 ch] 302@149 lifBr /kkjk 120 ch Hkkjrh; n.M lafgrk vfHk;qDrx.k us vkjksiksa ls badkj dj vUoh{kk pkghA " (Downloaded on 19/04/2022 at 08:24:08 PM)
(5 of 23) [CRLAD-298/2019] The prosecution examined as many as 22 witnesses and exhibited 37 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against them in the prosecution evidence, the accused denied the same and claimed to be innocent. Two witnesses were examined and 12 documents witnesses were exhibited in defence.
6. After hearing the arguments advanced by the learned Public Prosecutor and the learned defence counsel and appreciating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellants as above. These two appeals have been preferred by the accused appellants for assailing the impugned Judgment of conviction and the sentences awarded to them by the learned trial court.
7. Shri Vinod Sharma, learned counsel representing the appellant Hukma Ram in D.B. Criminal Appeal No. 298/2019 and Shri D.S. Udawat, learned counsel representing the appellants Jai Ram and others in D.B. Criminal Appeal No.223/2019, vehemently and fervently contended that the entire prosecution case is false and fabricated. The trial court has primarily relied upon the testimony of Ramkanya (PW-3) for holding the appellants guilty of the charges. However, as per the defence counsel, the testimony of Ramkanya is totally unreliable. She was allegedly sleeping on a cot besides the deceased Smt. Sukhi Devi on the fateful night and claimed in her evidence that the assailants, shifted her cot to some distance and then, inflicted the fatal injuries to Smt. Sukhi Devi. Learned defence counsel contended that it is impossible to (Downloaded on 19/04/2022 at 08:24:08 PM) (6 of 23) [CRLAD-298/2019] believe that Ramkanya would have continued to remain in slumber and would not have woken up even though the cot, on which she was sleeping, was shifted by the accused persons. They further urged that Ramkanya alleged in her evidence that Smt. Sukhi Devi raised an alarm when the assailants started to beat her and on hearing the noise, the witness too woke up and was threatened to keep quite. They contended that had Ramkanya seen the assault being made and the assailants were aware of this fact then, they would not have spared Ramkanya and she too would have been killed because there was no reason as to why, they would leave a witness alive to tell the story. They urged that it is crystal clear that Ramkanya was not present at the spot and her name was introduced in the written report (Ex.P/9) so as to create an eye- witness of the incident. They further urged that the first informant Shri Mahendra Singh (PW-4) submitted the written report (Ex.P/9) to the police officials at the place of incident on 15.05.2012 at 09.00 AM. Before that, he and Ramkanya had admittedly conversed with each other and the girl had allegedly shared the details of incident with her brother. In such a situation, there was no rhyme or reason whatsoever to omit details of the assailants; the weapons held by them and the manner in which the assault was made, in the written report (Ex.P/9). They urged that the complainant Shri Mahendra Singh levelled totally frivolous allegations against the investigating officers alleging that they acted in a partisan manner for favouring the accused. However, the fact remains that Mahendra Singh himself did not name anyone as the assailant when he submitted the written report (Ex.P/9). The 161 Cr.P.C. statement of Ramkanya (Ex.D/1), the so-called eye-witness, was recorded by the I.O. as late as on (Downloaded on 19/04/2022 at 08:24:08 PM) (7 of 23) [CRLAD-298/2019] 20.05.2012 (Ex.D/1). Even in this statement, Ramkanya named only Hukma Ram as the assailant. Even in the investigational statement of Mahendra Singh (Ex.D/3), wherein he, for the first time, narrated the details of conversation allegedly held between him and Ramkanya after the incident, only Hukma Ram was named as the assailant. The other accused persons have been implicated in this case simply on assumptions and conjectures raised on the ground that land disputes were going on between the parties. Attention of the Court was drawn to the complaint (Ex.D/4) lodged by Shri Mahendra in the court of the ACJM, Jaitaran wherein, an entirely new story has been set up by impleading Dharma Ram, Jasaram, Mangla Ram, Madanlal, Bagduri, Banshilal, Narbada, Shrawan son of Banshilal, Dhagla Ram, Shrawan son of Ganpatlal, Ugma Ram and Budha Ram as the assailants who had assaulted Smt. Sukhi Devi. Learned counsel Shri Vinod Sharma and Shri Udawat urged that it was alleged in the complaint (Ex.D/4) that Ramkanya was petrified and was not in a position to speak out on 15.05.2012 and that is why, the name of these accused persons had not been mentioned by the first informant in the written report (Ex.P/9). However, when Ramkanya mustered up the courage, she shared these details with the informant upon which, he filed the complaint in the court. Learned counsel Shri Sharma and Shri Udawat submitted that Hukma Ram is not named as an assailant in the complaint (Ex.D/4). They further urged that the finding recorded by the trial court in the impugned Judgment that Ramkanya is a reliable witness, is absolutely flimsy and baseless. They further contended that as per the version of the first informant, the accused Hukma Ram was bearing an enmity with Smt. Sukhi Devi on the premise (Downloaded on 19/04/2022 at 08:24:08 PM) (8 of 23) [CRLAD-298/2019] that his wife had been provided food and shelter by the deceased. However, neither Hukma Ram's wife Smt. Harkudi nor any other witness was examined by the prosecution during the trial and hence, this fictional theory of motive was not substantiated. The complainant also made a vague allegations of conspiracy against the accused Madanlal, Madanlal's wife, Banshilal, Banshilal's wife and Dhagla Ram owing to land disputes. However, when Ramkanya was examined on oath, she exaggerated and named as many as 14 persons as actual assailants who launched the attack on her mother.
8. Learned counsel Shri Sharma and Shri Udawat drew the Court's attention to the following parts of cross-examination conducted from Sushri Ramkanya (PW-3):
";g lgh gS fd iqfyl dks eSaus tSls2 c;ku cksys oSls fy[krs x;sA tks eSa vkt c;ku ns jgh gq¡ oSls gh eSaus cksykA iqfyl c;ku EXD-1 esa C to D Hkkx egsUnz } kjk eq>s 6 cts vkdj txk;k xyr fy[kk gS eq>s rks egsUnz 5 cts txk;k Fkk tks lgh gSA EXD-1 esa E to F Hkkx xyr fy[kk gSA
----------------------------------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------- EXD-1 esa gqdekjke }kjk dwV ls okj djus dh ckr ugha fy[kh gS eSua s rks fy[kkbZ Fkh D;ksa ugha fy[kh eq>s irk ughaA --------------------------------------------------------------------------------------------------
iz"u %& ;fn vkius jkr dks ?kVuk ns[kh gksrh rks mlh le; ikl esa gh vius ukuk ds ?kj esa ekStwn HkkbZ egsUnz o vU; ifjokj okyksa dks crkrhA mÙkj %& eq>s /kekZjke] enuyky] calhyky us eq>s tku ls ekjus dh /kedh nh Fkh fd ;gka ls mB xbZ rks rsjs dks Hkh ekj nsxsA pkSng tus }kjk ?kVuk esa djhc vk/kk ?kUVk yxkA vk/ks ?kUVs ckn lHkh pys x;sA ;g lgh gS fd vk/ks ?kUVs ckn Hkh eSa vius ukuk ds ?kj ?kVuk crkus ugha x;hA xokg vt[kqn dgk fd D;ksafd eq>s tku ls ekjus dh /kedh nh Fkh blfy;s ugha x;h FkhA ;g lgh gS fd mu yksxksa } kjk eq>s /kedkus ds dkj.k eSua s esjs ukuk ds ?kj tkdj bryk ugha nhA esjs iqfyl c;ku EXD-1 o EXD-2 eas ugha fy[kh gS ysfdu eSua s iqfyl dks crk nh FkhA
------------------------------------------------------- lqcg 5 cts egsUnz us eq>s uhan ls txk;k rks eSaus bl ?kVuk ckcr dksbZ tkudkjh ugh nh FkhA ml le; 5&6 cts egsUnz us Hkh ml ? kVuk ckcr esjs ls dksbZ iwNrkN ugha dh FkhA mlh le; egsUnz us esjs ekek euksgj] tksjkjke] lhrkjke] esjs ukuk ,oa esjs ?kj ds yksxksa dks cqyk;k FkkA fQj vkl&iMkSl (Downloaded on 19/04/2022 at 08:24:08 PM) (9 of 23) [CRLAD-298/2019] okys Hkh vk x;s FksA ;g lgh gS fd losjs 6&7 cts rd lHkh yksx vk x;s FksA ml le; Hkh eSua s fdlh ls Hkh ?kVuk ckcr ftØ ugha fd;kA lqcg 8&9 cts iqfyl vk x;h FkhA vkt eSua s tks c;ku fn;s oks lkjh ckr eSaus esjs HkkbZ egsUnz dks iqfyl vkus ls igys crk nh FkhA mlds ckotwn Hkh esjs HkkbZ egsUnz flag us pkSng O;fDr;ksa ds uke fjiksVZ esa D;ksa ugha fy[kk;k eq>s /;ku ughaA esjs HkkbZ us oks gh ckr fjiksVZ esa fy[kh Fkh tks eSua s esjs HkkbZ dks crkbZ FkhA ml fjiksVZ ntZ gksus ls igys eSus iwjh ckr HkkbZ dks crkbZ Fkh dksbZ rF; ugha NksMs FksA ---------------------------- ;g dguk xyr gS fd ml le; eSaus gqdekjke ds vykok lHkh O;fDr;ksa ds uke vkjksfir x.k esa ugha crk;s gksA ;g dguk xyr gS fd vkjksih t;jke] /kekZjke] eaxykjke] enuyky] cq/kkjke] cxnwMh] calhyky] Jo.k] ucZnk nsoh] <xykjke] nwljk Jo.k] mxekjke ds vkfn ds uke eSaus esjs ekek o ukuk ds f"kdkok esa vkdj vkt >wBs crk;s gksA
-------------------------------------------------------------------------- tc egsUnz lqcg 5&6 cts vk;k rc eSa tkx jgh FkhA og Mjh gqbZ FkhA"
and urged that the witness admitted that the statement (Ex.D/1) was written faithfully as narrated by her to the police. However, she resiled from numerous parts of her police statement (Ex.D/1) with which she was confronted in cross-examination. In the highlighted portions of her statement (supra), the witness admitted that when her brother Mahendra Singh woke her up in the morning, neither did she tell him about the incident nor he made any inquiry from her in this regard. Mahendra Singh then called their maternal uncle Manohar, Joraram, Sitaram and maternal grandfather. Persons from neighbourhood and many other people had collected at their house by 6-7 O' Clock in the morning, however, she did not tell anyone about the incident even then. She admitted that she divulged the entire gory details of the incident including names of 14 assailants to her brother Mahendra Singh before the police arrived at the village but she could not explain as to why Mahendra Singh did not mention these names in the written report lodged before the police. In the next breath, the witness admitted that the FIR contained all details which she had divulged to Mahendra Singh. It was contended that these grave and significant omissions and lacuna completely destroy the evidentiary worth of Ramkanya (PW-3) and Mahendra Singh (PW- (Downloaded on 19/04/2022 at 08:24:08 PM)
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4). It was further submitted that the allegations, which have been levelled by Ramkanya in her sworn testimony, are totally contradicted by the medical evidence and hence also, her testimony is unreliable.
9. Referring to the statement of Mahendra Singh (PW-4), learned counsel Shri Sharma and Shri Udawat pointed out that the witness stated that when he reached the place of incident, he saw his mother lying in a pool of blood whereas Ramkanya was lying in an unconscious condition on the nearby cot. They urged that since, as per Mahendra Singh, Ramkanya's cot had been shifted to some distance by the assailants in a very discrete manner so as to avoid alarming her, there was no reason as to why, she would loose consciousness. Ramkanya herself did not state that she lost consciousness after the incident. Thus, the conduct of Ramkanya as well as Mahendra Singh is unnatural. Attention of the Court was drawn to the following extracts from the cross-examination carried out from Mahendra Singh (PW-4):-
"....eSaus esjh cgu jkedU;k ls izdj.k ckcr iwNrkN esjs ufugky vkSj xkao okyksa ds vkus ds ckn lcds lkeus dh FkhA ml le; yxHkx 20&30 vkneh bdV~Bs gks x;s ftl le; eSaus jkedU;k ls iwNrkN dh Fkh rFkk le; lqcg 5%00 ;k 6%00 cts FksA mlh le; esjs s ekek euksgj us ?kVuk ckcr iqfyl Fkkuk tSrkj.k dks Qksu dj fn;kA tSrkj.k dLcs ls esjk xkao 3 fdeh nwj gSA Qksu lqcg 5%30&6%00 cts gh dj fn;k Fkk rc yxHkx 1&1%30 ?k.Vs ckn iqfyl ekSds ij vk x;h FkhA iqfyl vk;h Fkh rc iqfyl ds lkeus gh o lHkh yksxksa ds lkeus geus jkedU;k ls iwNrkN dh rc jkedU;k gks"k esa vk x;h FkhA mDr okjnkr vkSj gks"k esa vkus dh ckr lqcg ds 7%30&8%00 cts dh gS] tks vkjke ls cksy jgh FkhA ;g ckr lgh gS fd jkedU;k us eq>s tks ?kVuk crk;h Fkh] mlds crk;s vuqlkj izFke lwpuk fjiksVZ izn"kZ& P-9 eSua s ugha fy[kh FkhA izn"kZ P-9 eSua s cksydj vius ekek euksgj ls fy[kok;h FkhA esjs euksgj ekek }kjk iwjh fjiksVZ fy[kus ds ckn eSua s fjiksVZ i<+ dj gLrk{kj fd;s FksA esjk euksgj ekek iqfyl foHkkx esa ukSdjh djrk gSA ;g lgh gS fd jkedU;k us (Downloaded on 19/04/2022 at 08:24:08 PM) (11 of 23) [CRLAD-298/2019] foLr`r ?kVuk eq>s crk;h Fkh ml le; esjs euksgj ekek Hkh ikl gh FksA ;g lgh gS fd esjh ekrk ds "kjhj ij vk;h laiw.kZ pksVsa eSaus] esjs ekek euksgj us vkSj lHkh yksxksa us esjh ekrkth ds "kjhj ij vk;h lHkh pksVsa ns[kus ds mijkar fjiksVZ izn"kZ& P-9 esa fy[kh FkhA --------------------------------------------------------------------------------- esjs euksgj ekek iqfylokyksa us Hkh mDr ckr fy[kokus gsrq ugha dgk FkkA izn"kZ P-9 esa ?kVuk ls 3&4 fnu igys /kedh nsus dh ckr o igys ls gekjs chp eqdnek pyus dh ckr esjs ekek euksgj iqfyl dkWLVscy vkSj eSus gekjh tkudkjh ds fglkc ls fy[kk;h gSA izn"kZ P-9 dk iSjk la[;k 2] 4 o 5 eSus vkSj esjs euksgj ekek iqfyl dkWLVscy us gekjh futh tkudkjh ds fglkc ls fy[kk;sA"
It was submitted that the witness admitted having collected all minute details of the incident from Ramkanya and that the written (Ex.P/9) was drafted by incorporating all available details with inputs from his uncle Manoharlal who is a Police Constable. Despite that, significant omissions regarding the names of the alleged assailants and the manner in which the incident took place in the FIR (Ex.P/33) makes the entire prosecution case doubtful. It was not even mentioned in the report that Ramkanya was awake at the time of incident or that she had seen the assault being carried out with her own eyes. Learned defence counsel submitted that as a matter of fact, it seems that Ramkanya was not present at the spot and she was planted as an eye-witness to fill up the lacuna in a case of blind murder. The prosecution story was exaggerated from time to time because the complainant party had a strong motive for implicating the accused other than Hukma Ram with whom they were embroiled in relation to land disputes. The entire business of making improvements and exaggerations in the case was stage-managed by Manoharlal. It was contended that Manohar was not examined as a witness during investigation or the trial and thus, adverse inference deserves to be drawn against the prosecution.
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10. Learned defence counsel drew the Court's attention to the statement of Jetha Ram (PW-18), posted as Sub-Inspector at Police Station Jaitaran on the day of the incident who the first police officer who reached the place of incident. The witness admitted in his cross-examination that the complainant did not convey to him that Ramkanya was an eye-witness of the incident.
11. Shri Vinod Sharma, learned counsel representing the accused Hukma Ram, submitted that Krishna Chand Yadav, C.O. (PW-21) did not prove the informations under Section 27 of the Indian Evidence Act allegedly supplied by the accused Hukma Ram leading to the recovery of the Koont (Ex.P/34) and his clothes (Ex.P/35) in a legal way and thus, these recoveries loose significance. He thus urged that the FSL report (Ex.P/37) is of no avail to the prosecution.
On these grounds, learned counsel Shri Sharma and Shri Udawat implored the Court to accept the appeal, set aside the impugned Judgment and acquit the accused appellants of the charges.
12. Per contra, learned Public Prosecutor and Shri Bhagirath Bishnoi, learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by the learned defence counsel and, urged that the testimony of Ramkanya (PW-3) is absolutely natural and she is a wholly reliable witness. They urged that the young girl, who was just around 16 years of age on the day of incident, was terrified by the gruesome assault made on her mother in the dead of the night. She became (Downloaded on 19/04/2022 at 08:24:08 PM) (13 of 23) [CRLAD-298/2019] terrified and went into a shock after seeing the brutal assault made by multiple accused persons on her mother and thus, she lost the ability to raise a hue and cry or to call the neighbours. Even after she was woken up by her brother in the morning, she was in a state of shock and reacted as if she herself was being assaulted. It was only after being consoled by her brother Mahendra Singh and upon arrival of other relatives, Ramkanya mustered the courage to speak out regarding the brutal assault. Both, Mahendra Singh as well as Ramkanya, were so perturbed by the brutal killing of their mother that trivial omissions were bound to occur in the written report (Ex.P/9). They thus urged that the trivial omissions and minor discrepancies in the written report and the evidence of the witnesses deserve to be ignored. Ramkanya, the sole eye-witness, gave unwavering and clinching testimony regarding participation in the assault against the accused appellants and thus, their conviction as recorded by the trial court is absolutely justified. They further urged that the police officials had also taken sides of the accused who belong to an elite community as compared to the complainant party and the intentional lacuna left by the investigating officers cannot be used as a ground to discredit the evidence of otherwise reliable prosecution witnesses. On these submissions, learned Public Prosecutor and counsel representing the complainant, implored the Court to dismiss the appeal and affirm the impugned Judgment.
13. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned Judgment and the record.
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14. At the outset, we may note here that the prosecution case as against the accused Hukma Ram is based on ocular testimony as well as recoveries whereas no recoveries could be made from the remaining accused because they were not charge-sheeted by the police. It is a well settled principle of Criminal Jurisprudence that an FIR is not required to set out the graphic details of the incident and it need not be an encyclopedia but we have to remain cognizant of the fact that in the present case, the written report (Ex.P/9) was drafted with the active participation and guidance of Police Constable Shri Manohar Lal, who is maternal uncle of the first informant Mahendra Singh and the so-called eye-witness Ramkanya and thus, while appreciating the veracity thereof, the same standards cannot be applied where the FIR is lodged by a layman, not conversant with the procedure. The presence of Manohar Lal a Police Constable at the crime scene and his admitted association in the drafting of the report would necessarily imply that all care and caution was taken and the First Information Report was drafted meticulously by incorporating all necessary details which would have been dvulged by the so-called eye-witness Sushri Ramkanya. In this background, omissions and those too glaring ones would be of tremendous significance while adjudging the veracity of the prosecution case. It is evident that the written report (Ex.P/9), which came to be submitted by the informant Mahendra Singh, lacks in material details regarding the manner in which the incident took place or the specific role of the so-called assailants in making the assault. During sworn testimony, blatant improvements were made by the prosecution witnesses to be specific Ramkanya (PW-3) and Mahendra (PW-4) (Downloaded on 19/04/2022 at 08:24:08 PM) (15 of 23) [CRLAD-298/2019] by attributing specific roles to the accused Hukma Ram but significantly, even this allegation is missing in the written report (Ex.P/9) and the previous police statement (Ex.D/1) of Ramkanya. From the highlighted portions of statement of Mahendra Singh and Ramkanya, it is clear that both these witnesses had consulted with each other before the written report (Ex.P/9) came to be drafted and submitted. It is true that the FIR need not be an encyclopedia but since, the informant Shri Mahendra Singh and the sole prosecution eye-witness Ramkanya had admittedly consulted with each other prior to lodging of the written report (Ex.P/9), it can safely be presumed that Mahendra Singh would not omit to incorporate the basic details of the incident in the written report. However, on a perusal of the written report (Ex.P/9), it is manifest that it lacks details as to the weapon/s with which, the so-called assailants were armed and even the number of assailants or the manner in which Smt. Sukhi Devi was belaboured. Jai Ram, Mangla Ram, Madan Lal, Banshi Lal, Bagduri, Narbada and Budha Ram were not named in the written report. So far as the accused Madanlal, his wife Smt. Bagduri, Banshilal, his wife Smt. Narbada and Dhagla Ram, are concerned, they have been impleaded in the written report as conspirators and there is not even a whisper of suggestion that they too were present at the spot when the alleged assault was made. The written report is totally silent regarding the presence or specific participation of any of the assailants including Hukma Ram in the assault made on Smt. Sukhi Devi. The entire set of allegations in the FIR seems to be nothing but a fanciful figment of imagination and nothing beyond that. Ramkanya (PW-3) narrated the minute details of the incident in her sworn statement. However, she did not utter a single word (Downloaded on 19/04/2022 at 08:24:08 PM) (16 of 23) [CRLAD-298/2019] in her examination-in-chief as to how she fared after the incident; whether or not her brother came to the spot in the morning or what happened thereafter. In cross-examination, Ramkanya was confronted with her police statement (Ex.D/1) and the material improvements and omissions occurring therein vis-a-vis her sworn testimony. In this statement (Ex.D/1), Ramkanya (PW-3) only named Hukma Ram as being the assailant and not even a bald reference was made to the role of any of the other so-called assailants. However, while deposing on oath, she made wholesale improvements and plicated 14 persons directly for the assault.
15. The first informant Mahendra Singh (PW-4) lodged a complaint against the I.O. Shri Krishan Chand Yadav (PW-21) wherein, wild allegations were made against the investigating agency and the police officer without any foundation whatsoever. Mahendra Singh also filed a complaint (Ex.D/4) in the court of the Magistrate concerned on 13.08.2012 in which, he tried to improve upon the earlier theory claiming that when he filed the written report against the accused on 15.05.2012, at that time, his sister Ramkanya was terrified and was not in a position to speak and hence, he did not mention the names of the other accused persons in the report. Significantly, Hukma Ram is not named as an assailant in the complaint (Ex.D/4). He made exaggerated allegations in this report by involving as many as 12 persons in the incident. Shri Mahendra Singh was confronted with the complaint (Ex.D/4) during his cross-examination and he stated as below:
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(17 of 23) [CRLAD-298/2019] "izn"kZ D-4 eSaus Lo;a us U;k;ky; esa iS"k fd;k Fkk] u gh odhy lkgc esjs lkFk FksA izn"kZ D-4 eSaus vius ?kj ij gh rS;kj fd;k FkkA ;g ;kn ugha fd ?kVuk ds fdrus fnu o eghus ckn ;g rS;kj fd;k FkkA ?kVuk ds 1&2 fnu ckn eSaus mDr ifjokn&i= U;k;ky; esa ys tkdj is"k fd;k FkkA fdl O;fDr us fdl lk/ku ls esjh eka ds lkFk ekjihV dh Fkh] eq>s ;kn ugha gSA izn"kZ D-4 eSaus viuh loksZÙke tkudkjh ds vuqlkj iw.kZ :i ls rS;kj fd;k FkkA ml le; rd eSaus viuh tkudkjh ds vuqlkj dksbZ rF; ckdh ugha NksM+k FkkA izn"kZ D-4 esa tks uke fy[ks gq, gS muds vykok 2&3 vkneh vkSj Fks ysfdu oks dkSu&dkSu Fks] mlds ckcr dksbZ tkudkjh ugha gSA izn"kZ D-4 U;k;ky; esa is"k djus ij eftLVªsV lkgc us iwNk rks mudks Hkh eSaus blesa fy[kh ckrs gh crk;h Fkh] vU; dksbZ ckr ugha crk;h FkhA "
The witness admitted that he had written the report (Ex.D/4) to the best of his knowledge and by incorporating all material facts as were known to him. In this background, omission of the name of Hukma Ram in this complaint, completely destroys the gravamen of the prosecution case regarding participation of the said accused in the incident. Shri Mahendra Singh (PW-4) also made an allegation in the report (Ex.D/4) that the female assailants Bagduri, Narbada and Madanlal Chowkidar chopped off his mother's nose, ears, lips and fingers. However, as is apparent from a perusal of the postmortem report (Ex.P/31) and the evidence of the Medical Jurist Dr. Devendra Solanki (PW-16), apart from the fact that large number of lacerated wounds were noticed on the body of the deceased, there was no observation regarding any body parts missing corresponding to the allegations made in the complaint (Ex.D/4). Thus, the fact regarding the complainant Mahendra Singh having made baseless and unsubstantiated exaggerations by over-implicating the accused persons in the case, is writ large on the face of the record. For the sake of repetition, it may be mentioned here that Manohar Lal, being the maternal uncle of Ramkanya and Mahendra Singh, is a police constable and was present at the spot when Shri Mahendra Singh (Downloaded on 19/04/2022 at 08:24:08 PM) (18 of 23) [CRLAD-298/2019] drafted and presented the report. As admitted by Shri Mahendra, Shri Manoharlal even provided his inputs while the report was being prepared. In this background, omission of material facts viz. names/ participation/ specific role of the accused in the written report (Ex.P/9) goes to the root of the matter and discredits the entire prosecution case. Since Shri Mahendra Singh and Sushri Ramkanya had consulted with each other before lodging of the written report (Ex.P/9), significant omissions therein would also affect the credibility of the prosecution case.
16. We are of the view that omission of material facts viz. names of the accused persons and the role assigned to them in the FIR (Ex.P/33), is fatal to the prosecution. The alleged eye-witness Ramkanya was, for the first time, examined under Section 161 Cr.P.C. as late as on 20.05.2012 (Ex.D/1) i.e. after five days of the incident. No justification has been offered by the prosecution for this significant delay in examining her during investigation. For the sake of repetition, it may be mentioned here that even in this delayed statement (Ex.D/1) with which she was extensively confronted, Ramkanya (PW-3) did not name anyone other than Hukma Ram as the assailant. However, when deposing on oath, she made blatant improvements and exaggerated the story by involving as many as 14 persons including Hukma Ram who allegedly assaulted and killed her mother while moving her cot aside. As per Ramkanya, 14 persons launched the assault on her mother while she was sleeping besides her. She woke up on hearing the commotion. The accused threatened her to keep quiet. Manifestly thus, Ramkanya was at the mercy of the accused and there was no rhyme or reason as to why they would spare the (Downloaded on 19/04/2022 at 08:24:08 PM) (19 of 23) [CRLAD-298/2019] girl and leave behind an eye-witness who could implicate them at a later stage. The conduct of Ramkanya in casually going back to sleep after having watched the assailants brutally assaulting and killing her mother and in making no effort whatsoever to alert her relatives who lived nearby, is yet another circumstance which convinces us that she is a created witness and as a matter of fact, did not see the incident with her own eyes. Once, the evidence of Ramkanya is discarded, there remains no evidence worth the name of the record of the case so as to connect the appellants with the crime.
17. The aspect regarding omission of important facts in the FIR was considered by Hon'ble the Supreme Court in the case of Ram Kumar Pandey vs. The State of Madhya Pradesh reported in AIR 1975 SC 1026 and held as below:
"8. The above mentioned First Information Report was lodged at Police Station Ganj on 23-3-1970 at 9.15 p.m. The time of this incident is stated to be 5 p.m. The only person mentioned as an eye witness to the murder of Harbinder Singh is Joginder Singh. The two daughters Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6, are mentioned in the F.I.R. only as persons who saw the wrapping of the chadar on the wound of Harbinder Singh, What is most significant is that it is nowhere mentioned in the F.I.R. that the appellant had stabbed Harbinder Singh at all. It seems inconceivable that by 9.15 p.m. it would not be known to Uttam Singh, the father of Harbinder Singh, that the appellant had inflicted one of the two stab wounds on the body of Harbinder Singh.
9. No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in (Downloaded on 19/04/2022 at 08:24:08 PM) (20 of 23) [CRLAD-298/2019] the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.
10. Even Joginder Singh, PW 8, was not an eye witness of the occurrence. He merely proves an alleged dying declaration. He stated that Harbinder Singh (described by his pet name as "Pappi") rushed out of his house by opening its door, and held his hand on his chest with blood flowing down from it. He deposed that, when he asked Pappi what had happened, Pappi had stated that Suresh and Pandey had injured him. It is clear from the F.I.R. that Joginder Singh had met Uttam Singh before the F.I.R. was made. Uttam Singh did not mention there that any dying declaration, indicating that the appellant had also injured Harbinder Singh, was made by Harbinder Singh. The omission to mention any injury inflicted on Harbinder Singh by the appellant in the F.I.R. seems very significant in the circumstances of this case. Indeed, according to the version in the F.I.R., Joginder Singh, who was in the lane, is said to have arrived while Harbinder Singh was being injured. Therefore, if this was correct, the two injuries on Harbinder Singh must also have been inflicted in the lane outside.
(Emphasis supplied)"
18. The above observations in the case of Ram Kumar (supra) were followed in the case of Sujit Biswas vs. State of Assam, reported in AIR 2013 SC 3817 wherein Hon'ble Supreme Court observed as below:
"16. Undoubtedly, the FIR lodged has disclosed the previous statement of the informant which can only be used to other corroborate or contradict the maker of such statement. However, in the event that the informant is a person who claims to know the facts, and is also closely related to the victim, it is expected that he would have certainly mentioned in the FIR, all such relevant facts. The omission of important facts affecting the probability of the case, is a relevant factor under Section 11 of the Evidence Act to judge the veracity of the case of the prosecution."
19. The prosecution tried to seek corroboration for the ocular testimony against Hukma Ram by recovery of the weapon of (Downloaded on 19/04/2022 at 08:24:08 PM) (21 of 23) [CRLAD-298/2019] offence i.e. Koont. However, perusal of the statement of the investigating officer Krishan Chand Yadav (PW-21) would indicate that he gave absolutely perfunctory and unacceptable evidence regarding the information provided by the accused and the consequent recovery made in furtherance thereof. The witness stated as below:
"esjs vuqla/kku ds nkSjku vuqla/kku eqyfte gqdekjke ds fo:) tqeZ lkfcr ik;s tkus ij eSaus :c: ekSrfcjku~ tfj;s QnZ izn"kZ ih 13 ds fxj¶rkj fd;k FkkA izn"kZ ih 13 ij bZ ls ,Q esjs] , ls ch x.kiryky] lh ls Mh jkeiky ds gLrk{kj gS rFkk ,Dl LFkku ij gqdekjke dk vaxq'B fu"kku gSA ckn fxj¶rkjh ds eqyfte gqdekjke us LosPNk ls dwV o ?kVuk ds oDr igus gq;s diM+s cjken djokus dh bRryk nhA dwV dh bRryk] izn"kZ ih 34 o diM+s dh bRryk izn"kZ ih 35 gS bu nksuksa QnksZ ij , ls ch esjs o ,Dl LFkku ij gqdekjke dk vaxq'B fu"kku gSA dwV cjkenxh ckcr~ ,d lwpuk vksj nh Fkh tks izn"kZ ih 36 gS ftl ij , ls ch esjs o ,Dl LFkku ij gqdekjke dk vaxq'B fu"kku gSA ekfQd bRryk vuqlkj eqyfte gqdekjke us vius ?kj ls yksgs dh dwV vkxs vkxs pydj :c: ekSrfcjku~ ds yksgs dh dwV cjken djok;h Fkh tks eSaus otg lcwr dCtk iqfyl ysdj lhyeksgj dj QnZ cuk;h tks izn"kZ ih 23 gS o mldk uD"kk izn"kZ ih 24 gS bu nksukas QnksZ ij lh ls Mh esjs] , ls ch ekSrchj jkeiky o tsM LFkku ij nsokjke dk vaxq'B fu"kku gS rFkk ,Dl LFkku ij eqyfte gqdekjke dk vaxq'B fu"kku o okbZ LFkku ij uewuk lhy vafdr gSA"
Manifestly, the information under Section 27 of the Indian Evidence Act was not proved by narrating the exact words or even the summary thereof as spoken by the accused to the I.O. and hence, the same cannot be read in evidence as held by this Court in the case of Daau Ram vs. State of Rajasthan (D.B. Criminal Appeal No.87/2019), decided on 27.05.2019. Thus, the recovery of the Koont, allegedly made at the instance of the accused Hukma Ram, is of no avail to the prosecution and consequently, the FSL report (Ex.P/37) cannot be read in evidence.
20. As an upshot of the above discussion, we are of the firm view that the trial court committed grave error while appreciating (Downloaded on 19/04/2022 at 08:24:08 PM) (22 of 23) [CRLAD-298/2019] the evidence and accepting Ramkanya to be a reliable witness. The finding recorded by the trial court that the FIR (Ex.P/33) is a reliable document, is also unsustainable on the facts and circumstances narrated above. There is no other evidence on the record of the case so as to hold the appellant guilty for the offences alleged. Hence, the impugned Judgment does not stand to scrutiny and deserves to be reversed.
21. As a consequence, the impugned Judgment dated 05.08.2019 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Pali in Sessions Case No.32/2014 (C.I.S. No.815/2014), is hereby quashed and set aside. The appellants are acquitted of the charges. The accused appellants Hukma Ram, Mangla Ram and Madan Lal are in custody. They shall be released from prison forthwith if not wanted in any other case. The accused appellants Jai Ram, Banshi Lal, Bagduri, Narbada and Budha Ram are on bail. They need not surrender and their bail bonds are discharged.
The appeals are allowed accordingly.
22. However, keeping in view the provisions of Section 437-A Cr.P.C., each of the appellants is directed to furnish a personal bond in the sum of Rs.40,000/- 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 appellants shall appear before the Supreme Court.
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23. Record be returned to the trial court forthwith.
24. A copy of this order be placed in each file.
(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J
Tikam Daiya/-
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