Rajasthan High Court - Jaipur
Kalu Ram And Anr. vs State Of Rajasthan on 9 January, 1987
Equivalent citations: 1987(1)WLN438
Author: Ashok Kumar Mathur
Bench: Ashok Kumar Mathur
JUDGMENT Shyam Sunder Byas, J.
1. Accused Kaluram and Dilip Kumar were convicted under Section 302/34, I.P.C. and each was sentenced to imprisonment for life with a fine of Rs. 2000/- in default of the payment of fine to further undergo two years rigorous imprisonment by the Additional Sessions Judge (2), Hanumangarh, vide his judgment dated September 23, 1981. They have come-up in appeal to challenge their conviction.
2. Briefly stated, the prosecution case is that the deceased Harisingh resided in Tandurwali PS Tibi district Sri Ganganagar. The appellants are also residents of the same village. The relations between the deceased and the appellants were not happy. At about 5.30 p.m. on November 16, 1979 Harisingh and his brother-in-law Kartarsingh (PW 6) were returning from the deceased's field to his house in a carnal cart. When they happened to pass in the field of one Khurshid, the appellants accompanied with one Hanuman came from the opposite side, Kaluram told the deceased that the accounts would be settled. On his saying so, the two appellants and Hanuman proceeded towards the deceased. Apprehending the danger to his life, the deceased jumped down from the camel cart and started running. The appellants and Hanuman followed him and felled him down. Kaluram had a Gandasi while Dilipkumar had an axe and Hanuman had a lathi. They made an assault on the deceased and struck blows to him with their weapons. As a result of the beating. Harisingh sustained multiple injuries on his hands and feet, Kartarsirigh (PW 6). Seeing the incident, raised the cries. The miscreants thereafter fled away towards the village. Kartarsingh and the deceased came to the village and went to Up-Sarpanch Pw 8 Hanuman Prasad. The deceased narrated the incident to him. He advised the deceased to go to the police station and lodge a report there, Harisingh accordingly went to the police station, Tibi and verbally lodged report Ex P 15 at about 8 p.m. on the same day. The report was recorded in the Rojnamcha on the police station. Since the nature of the injuries sustained by him could not be ascertained by the Police Officer on duty, he advised Harisingh to get his injuries medically examined. Meanwhile. Up-Sarpanch Hanuman Prasad also reached there. Hanuman Prasad arranged a jeep and took Harisingh to Government Dispensary, Hanumangarh. PW 4 Dr. Narendra Godara examined Harisingh and declared him dead The police was apprised of his death. The Investigating Officer registered a case under Section 302, 1PC and took up the investigation. The investigation was conducted by the Assistant sub-Inspector Ghanshyam Das. He and PW 11 Bhagwen Das, who was posted as the Station House Officer P.S. Hanumangarh went to the hospital and prepared the inquest report of the victim's dead body. The medico-legal autopsy of the victim was conducted on November 17, 1/79 by Dr. Godara. He found as many as 42 injuries on the different parts of the deceased's body The injuries were abrasions, bruises, lacerated wounds and swellings. Fractures of humerous and ulna bones were also detected. In the opinion of Dr. Godara, the cause of death was shock due to combined effect of the multiple injuries. The post mortem report prepared by him is Ex.P 5. During investigation, Bacchansingh and Latu were also found to have assaulted the deceased along with the appellants. The appellants as well as Bacchansingh and Latu were arrested. In consequence of the informations furnished by them, weapon, with which the offence was committed, were recovered. The blood stained clothes of the victim were also seized and sealed. On the completion of investigation, the police presented a challan against four persons, viz., Kalu, Dilip Kumar, Bacchansingh and Latu in the Court of the Judicial Magistrate, Hanumangarh, who in his turn, committed the case for trial to the Court of Sessions. The Sessions judge framed a charge under Section 302/34, I.P.C. against all of them to which they pleaded not guilty and claimed to be tried. The appellants denied their complicity in the commission of the crime and claimed absolute innocence. In support of. its case, the prosecution examined eleven witnesses and filed some documents. In defence the accused examined the Additional Superintendent of police Mr. Firoz Khan (DW 1). On the conclusion of the trial the learned Sessions judge found no incriminating material against accused Bachansingh and Latu. They were consequently acquitted of the offence they were charged with. The Sessions Judge, however, held the charge duly proved against the appellants Kalu and Dilip. They were, therefore, convicted and sentenced as mentioned at the very out-set. Aggrieved against their conviction they have taken this appeal.
3. We have heard Mr. S.K. Mathur learned Counsel for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully.
4. Before proceeding further, it may be pointed out that Mr. Mathur learned Counsel for the appellants did not challenge the opinion of Dr. Godara about the cause of death of the deceased Harisingh; We have also gone through his testimony and find no reasons to district his opinion. We, therefore, need not discuss the evidence of Dr. Godara. Suffice is to say that the injuries found on the victim's dead body ware sufficient in the ordinary course of nature to cause death. The death of Harisingh was, thus, not natural but homicidal.
5. In order to substantiate the charge against the culprits the prosecution adduced direct as well as circumstantial evidence. The direct evidence is of the three eye witnesses PW 1 Surjaram, PW 2 Darshansingh and PW 6 Kartarsingh. The circumstantial evidence is that of the report Ex.P 15 lodged by the deceased Hari Singh and which was entered in the Rojnamcha of the police station. This report Ex.P 15 was treated to be a dying declaration of the deceased. Out of the three ocular witnesses, PW 1 Surjan Ram and PW 2 Darshan Singh lent no support to the prosecution. They were declared hostile. According to them, the appellants made no assault on Harisingh and gave him no beating. Though both of them stated that Harisingh was assaulted and beaten by some persons, but they could not identify these miscreants. PW 6 Kartarsingh, of course, supported the prosecution and claimed to have seen the entire incident. The learned Sessions Judge accepted him as a truthful witness. The Sessions Judge further relied upon the dying declaration Ex.P 15. Taking these two sets of evidence into consideration, he held the charge duly brought at the doorsteps of the appellants.
6. In assailing the conviction, Mr. Mathur vehemently contended that neither PW 6 Kartarsingh is a witness of truth nor was the dying declaration Ex. P. 15 faithfully and correctly recorded. It was argued that the dying declaration Ex. P 15 is a fabricated document as per the evidence of the Additional Superintendent of Police Mr. Firozkhan DW 1, PW 6 Kartarsingh was falsely introduced as an ocular witness. It would be proper to deal with these contentions at seriatim. We shall take the contention relating to the dying declaration to start with.
7. It was vehemently contended by Mr. Mathur to that dying declaration Ex.P 15 is not the correct and faithful re-production of what the deceased Harising stated at the police station.It was argued that Ex. P 15 was recorded in the Rojnamcha of the police station by the Station Writer Umaidsingh PW 10 in the presence ASF Police Ghanshyam Das, Umaidsingh has stated that Harisingh was speaking in Punjabi & Ghanshyamdass translating it in Hindi. It was at the dictation of Ghanshyam Das that he wrote Ex. P 15 is Hindi. Umaidsingh did not state that he knew and understood Punjabi. Ghanshyam Das ASI Police, was not produced in evidence to state that what he translated was the correct and accurate re-production of the statement given by the deceased Harisingh in Punjabi. It cannot be, therefore, said that what has been written in Ex. P 15 is the accurate and correct re-production of the declaration made by the deceased. It was further argued that according to the Additional Superintendent of Police, Firoz Khan DW 1 what was written in Ex.P 15 was not 'he correct and faithful re-production of what was stated by the deceased Harisingh. It was on the other hand, contended by the learned Public Prosecutor that despite the best efforts, Ghanshyam Das could not be produced in evidence. There is no reason to disbelieve the testimony of PW 10 Umaidsingh. The Dying Declaration Ex P 15 was read over to Harisingh and he admitted its correctness. It was thereafter that he appended his thumbs impression on it. We have taken the respective submissions into consideration and find much such substance in the contentions of Mr. Mathur.
8. The dying declaration may be oral or written. It is also immaterial as to whom it was made. If the dying declaration has been reduced into writing needless to say that it must contain a correct and accurate reproduction of what the deceased stated. The recording of dying declaration is a solemn act and should therefore be faithfully discharged. The law treats it dying declaration if the declarant were a sworn witness. It is, therefore, all the more required that what the deceased actually spoke about the death should be correctly, accurately and faithfully reproduced in the Court. We are quite aware that the dying declaration need not be reduced into writing in the actual words spoken by the deceased. It is the substance and not the mere form which should be taken into consideration. Dying declarations correctly, accurately & faithfully recorded are among the effectual proof in law and de serve utmost credit if the court is satisfied that the declaration is the correct accurate and faithful reproduction of what the deceased spoke, this declaration in itself is sufficient to base the conviction even without any corroboration. The dying declaration, thus, plays a very vital and important role in assessing the guilt of the accused.
9. Unfortunately, here in the instant case, there are various circum stances which do not permit us to treat Ex P 15 as a correct and faithful reproduction of what the deceased Harisingh stated. PW 10 Urnaidsingh is the Station Writer, who took down Ex.P. 15 in the Rojnamcha. In his cross-examination be stated that the deceased Harisingh was speaking in Punjabi to ASI Police Ghanshyam Das and that Ghanshyam Das was dictating him (witness) in Hindi. The witness did not state that he knew and understood Punjabi. In other words, he could not follow and understand what was actually spoken by the deceased in Punjabi. Ex P. 15 is, thus, a reproduction of what was dictated to the Station Writer by the ASI Police Ghanshyam Das. If the witness (Umaidsingh) knew and understood Punjabi and if he stated that what was translated to him by the ASI Police Ghanshyam Das was correct and true, the matter would have been some what different. But as he (Umaidsingh) did not follow and understand Punjabi, what has been taken down in Ex.P 15 by him was the reproduction of the dictation given to him in Hindi by the ASI Police Ghanshyam Das. Various opportunities were afforded to the prosecution to produce ASI Gbanshyam Das in evidence, but he was not examined.The actual declaration & statement of the deceased Hari Singh was that which he spoke in Punjabi to ASI Ghanshyamdas. Ghanshyam Das was, thus, the most important person to state that what he dictated in Hindi to the Station Writer Umaidsingh was a correct, accurate & faithful repreduction or translation of what was stated to him by the deceased Harisingh. Since Ghanshyam Das has not been examined as a witness by the prosecution, we cannot say that Ex.P. 15 is a correct, accurate and faithful reproduction of what was stated by the deceased Harisingh.
10. Apart from that, there is a direct conflict between the nature of the injuries and weapons stated in Ex.P 15 and the medical opinion. In Ex.P 15 it was stated that the appellants Kaluram and Dilip were armed with Gandasi and axe and that they inflicted injuries 10 Harisihgh with these weapons. Unfortunately, no injuries caused by the sharp-edged weapon was found on the victim's dead body. All the injuries found on his dead body were either lacerated wound or abrasions or contusion. According to Dr. Narendra Godara, all the injuries found on the dead body were caused by blunt object. There is. thus, a discordance between the nature of the injuries caused to Harisingh as stated in Ex.P 15 and the medical evidence of Dr. Godara. This conflict persists and cannot be resolved.
11. The investigation was carried out at different stages by different police officers. The Additional Superintendent of Police Mr. Firoz Khan (DW 1) was also connected with the investigation. From the investigation made by him, he found that Ex. P 15 was not correctly and accurately recorded. To quote his words.
esjs }kjk dh x;h tkap ls eSus ik;k fd bl eqdnes dh ?kVuk loZizFke gfjflag }kjk jkstukepk Fkkuk Vhoh es fnukad 16&11&1979 dks ntZ djokbzZ xbZ Fkh A ;g lR;rk dks rksM+ ejksM+ dj ntZ djkbZ xbZ Fkh A He further admitted that departmental action was initiated against the ASI Ghanshyam Das for not correctly recording the dying declaration Ex P. 15. Thus, even according to the Senior Police Officer Mr. Firoz Khan (DW 1) Ex. P 15 is not the correct, accurate and faithful reproduction of what was stated by the deceased Harisingh.
12. We are quite aware that there is no presumption that dying declaration is false or that it is unworthy of belief. It is not to be treated or presumed as a piece of tainted evidence. But before the dying declaration is accepted and acted upon, the Court should be satisfied that the dying declaration was recorded correctly, accurately and faithfully and reproduces what was stated by the dead. Since Ex.P 15, for the reasons discussed above, is not a correct and accurate reproduction of what was stated by the deceased Harisingh we are unable to attach any evidentiary value to it. The Court below failed to take all these aspects of the matter into consideration and abruptly accepted it as a genuine document. The dying declaration Ex.P 15, thus, renders no help to the prosecution. We have no hesitation in rejecting this piece of tained evidence.
13. Turning to the direct evidence, the prosecution examined three ocular witnesses viz. PW 1 Surja Ram PW 2 Darshansingh and PW 6 Kartar Singh, each of whom has claimed to have seen the incident. PW 1 Surja Ram and PW 1 Darshan Singh however, rendered no assistance to the prosecution and they were declared hostile. Both of them deposed that two persons made an assault on the deceased Harisingh and inflicted injuries to him. They could not identify those two assailants. They further deposed that the appellants were not those two assailants who had assaulted on and belaboured Harisingh. They were confronted with reference to their police statements recorded under Section 164, Cr. P.C. Despite cross-examination, nothing could be elicited from them which may be helpful to the prosecution.
14. PW 6 Kartarsingh of course, helped the prosecution. It was on the strength of his testimony that the Court below held the charge duly established against the appellants. The deceased Harisingh was his brother-in-law being the son of the brother of his father-in-law. He is a resident of village Meni Dheerawali district Amritsar (Punjab). He deposed that he went to village Tandoorwali to see his in laws. At about 5.00 p.m. on the day of the incident he and Harisingh were, returning in the camel cart from the deceased's field when they happened to pass the field of one Khurshid the appellants and Hanuman (Hanuman being the son of appellant Kaluram) came from the opposite direction. Accused Kaluram had a Gandasi while Dilip Kumar had an axe and Hanuman had a Lathi. They shouted that the enemy was in sight and they would settle accounts with him. Harisingh, apprehending danger, jumped down from the camel cart and took to heels. The three miscreants followed him. The appellants and Hanuman struck blows to him with their weapons. Harisingh fell down. The miscreants continued to strike blows to him. The witness further added that he raised the cries but non came to help. He proceeded further to intervene and he was threatened by the-miscreants that in case he dared to come forward, he would also be killed. After landing numerous blows to Harisingh, the miscreants fled away. The witness further stated that he lifted Harisingh and placed him in the camel cart. He took him to the Up-Sarpanch Hanuman Prasad (PW 8) and narrated him the incident. He told him that the appellants and Hanuman had belaboured Harisingh. Hanuman Prasad (PW 8) took Harisingh in a jeep to police station, Tibi. The witness went to the deceased's house. After sometime, Hanuman Prasad (PW 8) came back to him. Both of them arranged a tractor and went to Tibi Police Station. From there, they took Harisingh with them and went to the hospital, Hanumangarh. Before they reached the hospital, Harisingh passed away. Normally the sworn testimony of a witness is taken as true unless and until the witness is shown to be untruthful and unreliable.
15. In the instant case, there are numerous striking features in the statement of PW 6 Kartarsingh which make him wholly unreliable. PW 8 Up-Sarpanch Hanuman Prasad does not support him that he took Harisingh to him. According to PW 8 Hanuman Prasad only Harisingh came to him and nobody was with him. Kartarsingh denied that he went to the police station, Tibi with the deceased Harisingh But he could not maintain this stand and in cross-examination he admitted that the dying declaration Ex.P 15 was recorded in his presence. When the investigation changed hands he was summoned by the Additional Superintendent of Police Mr. Firoz Khan (DW 1) for interrogation, he intentionally avoided appearing before him. He went to the deceased's house and met his wife Smt. Joginder Kaur (PW 5). He did not state to her the names of the assailants who had assaulted her husband Harisingh and landed blows to him. The witness stated that accused Kalu Ram had a Gandasi and Dilip Kumar had an axe and that they landed blows with these weapons to Harisingh. The medical evidence, as discussed earlier does not show that any of the injuries caused to Harisingh was inflicted with a sharp-edged weapon. In Hallu and Ors. v. State of Madhya Pradesh , it was observed by their Lordships in para 11 of the judgment:
Normally when a witness says that an axe or a spear is used there is no warrant for supporting that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon.
16. Kartarsingh (PW 6) did not state that the blows to Harisingh were inflicted by the appellants with the blunt or reverse side of their weapon Gandasi or axe. This discrepancy in itself is sufficient to disbelieve PW 6 Kartarsingh. This discrepancy shows that he had not seen the incident and has falsely introduced himself as an ocular witness of the incident. Needless to say that the evidence of a witness must be tested on the anvil of objective circumstances in a case. The aforesaid discordance between the testimony of this witness and the medical evidence cannot be lost sight of while assessing and evaluating his credibility. The testimony, of this witness, thus, inspires no confidence.
17. We may add here that the conviction of the culprits can be safely made on the testimony of single witness. But in that case, the witness must be of sterling worth and his testimony should be free from suspicion and beyond reproach which can be safely accepted without reservations. The testimony of PW 6 Kartarsingh certainly does not belong to this category. The Court below crept into an error in accepting the testimony of this witness at its face value.
18. There are then some other striking features in the prosecution case. PW 8 Hanuman Prasad is the Up-Sarpanch. He deposed that at about 5.00 p.m. the deceased Harisingh came to him and told him that he was assaulted and belaboured by four/five persons in his field and that he could not identify them. He advised him to go to the police station and lodge a report there. He also advised him that as he could not identify the assailants, he should not falsely implicate any person in the report. PW 5 Smt. Joginder Kaur is the widow of the deceased-victim. According to PW 6 Kartarsingh he went to the deceased's house. PW 5 Smt. Joginder Kaur stated that no body disclosed the names of the assailants to her. This strengthens the defence that some persons, who could not be identified, made an assault on Harising and belaboured him.
19. A few words may also be added about investigation. The investigation was conducted in a perfunctory manner. It changed hands from time to time. The dying declaration was not correctly and accurately recorded, The entire Investigation got spoiled, as it was carried out in different directions by the Investigating Officers. Too many cooks spoil the food. Here the chariot of investigation had many horses and each was pulling it in a direction different from the other. The result in that no clear picture of the incident could be placed before the Court by the Investigating Agency.
20. As a result of the aforesaid discussions, we are unable to maintain the conviction of the appellants. They were wrongly convicted.
21. The appeal of accused Kaluram and Dilip Kumar is allowed. Their conviction and sentence under Section 302/34, I.P.C. are set aside and they are acquitted. They are already on bail and need not surrender. Their bail bonds shall stand cancelled.