Rajasthan High Court - Jaipur
Roopi @ Roop Singh vs State on 31 August, 2012
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT D.B.CRIMINAL APPEAL NO.226/2004. Roopi alias Roop Singh. VERSUS The State of Rajasthan. D.B.CRIMINAL APPEAL UNDER SECTION 374(2) CR.P.C. AGAINST THE JUDGMENT DATED 30.01.2004 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK, LAXMANGARH, DISTRICT ALWAR IN SESSIONS CASE NO.36/2003. Date of Judgment. : August 31, 2012. PRESENT HON'BLE MR.JUSTICE DALIP SINGH HON'BLE DR.JUSTICE MRS.MEENA V.GOMBER Mr.Saurabh Arya along with Mr.A.K.Gupta, for the appellant. Mrs.Rekha Madnani, Public Prosecutor. ***** BY THE COURT (ORAL): Per Hon'ble Dalip Singh, J.
This appeal has been preferred by the appellant who has been convicted for the offence under Section 302 I.P.C. by the learned Additional District and Sessions Judge (Fast Track), Laxmangarh, District Alwar in Sessions Case No.36/2003 vide judgment dated 30.01.2004 and sentenced to life imprisonment with a fine of Rs.5,000/-; in default of payment of fine to further undergo six months rigorous imprisonment.
The brief facts, giving rise to this appeal are that one Girraj Prasad (PW-1), brother of the deceased, lodged a written report at Police Station Laxmangarh, District Alwar on 22.10.2002 at about 10:30 PM stating therein that he was sleeping in hise house when Kabul son of Jaggi Gurjar, Mitthan, Chetram and Ratiram Garjar who are the residents of his village came and informed him that his younger brother namely Shiv Charan who had been sleeping on a cot in the field for the purpose of watering the field had been murdered by the accused appellant Roopi @ Roop Singh son of Mangelal who was armed with an axe and had inflicted injuries to the deceased Shiv Charan with the said axe as a result of which Shiv Charan died on the spot. It was stated in the report that on hearing the noise and beating, Shishram son of Ramswaroop, Ramswaroop son of Jaggi and Phool Singh son of Arjun Meena who were fixing the pipes at the nearby well came running and on seeing them the appellant Roopi @ Roop Singh ran away. It was also stated in the report that in the evening there had been a quarrel between Ram Swaroop and Roop Singh accused as a result of which Roop Singh had threatened Ram Swaroop with his life. On the above report (Exhibit P-1) lodged by PW-1 Girraj Prasad at about 10:30 PM, the FIR No.284/2002 came to be recorded on 22.10.2002 at Police Station Laxmangarh, District Alwar at about 11:30 PM. The FIR is Exhibit P-2 on record. On the aforesaid FIR having been registered, the Investigating Officer PW-18 Narendra Singh made the Panchayat Nama of the dead body of the deceased Shiv Charan which is Exhibit P-3, the site plan of the field where the dead body was found is Exhibit P-5. Thereafter photography was conducted and the photographs are Exhibit P-16 to Exhibit P-19 on record. The post mortem of the deceased was also conducted on the spot by PW-12 Dr.Lalit Kumar Sharma and the Post Mortem Report of the deceased is Exhibit P-14 on record. PW-12 Dr.Lalit Kumar Sharma who conducted the post mortem of the deceased Shiv Charan found the following injuries on the deceased as described in the Post Mortem Report (Exhibit P-14):-
There is an extensive sharp wound of 20 cm width, 12 cm height nd brain deep wound on left fronto parieto-occipital region. Skull bones multiple fractures, exsanguination present over face, neck and back portion of skull, dura-mater open along with sharp cut of fronto-parieto-occipital left sided brain matter. Exsanguination inside skull present.
After examining the injury and having conducted the post mortem, the Doctor gave his opinion which is as follows:-
In my opinion, the cause of death seems to be cardio-pulmonary failure secondary to hypovolumic shock following traumatic head injury over left side of fronto-parieto-occipital region of skull.
The Investigating Officer handed over the body of the deceased to PW-1 Girraj Prasad Sharma. The clothes of the deceased were recovered. The cot and the mattress which was blood stained was also recovered. Portion of baan (strings) of charpai on which the deceased was sleeping which was stained with blood was recovered along with the sand under the bed. During the course of investigation, the Investigating Officer arrested the accused appellant and on his information he is said to have also recovered his shirt which is said to be stained with blood as well as the alleged weapon of offence, the axe which was recovered and the memo Exhibit P-11 prepared. The prosecution examined 18 witnesses and exhibited 23 documents. The statement of the accused appellant was recovered under Section 313 Cr.P.C. by the learned trial court and after hearing the prosecution and the defence, the learned trial court by the impugned judgment dated 30.01.2004 convicted and sentenced the accused appellant, as stated above.
Being aggrieved by the aforesaid judgment dated 30.01.2004, the accused appellant has preferred this appeal.
Learned counsel Mr.Saurabh Arya submitted that in the instant case so far as the FIR which is the first version is concerned that has been submitted by Girraj Prasad (PW-1) and he is not the eye witness and has made the aforesaid report on the basis of the information given by Kabul, Mitthan, Chetram and Ratiram who had gone to inform him at about 10:15 PM about his brother Shiv Charan having been murdered by the accused appellant Roop Singh @ Roopi. It was also submitted that so far as these four persons namely Kabul, Mitthan, Chetram and Ratiram are concerned, they too were not the eye witnesses to the occurrence nor did they see the accused appellant having murdered the deceased or having inflicted the injuries or running away from the spot. Their evidence is also based upon the version given by PW-2 Ram Swaroop son of Jaggi as well as PW-3 Shishram son of Ram Swaroop. Thus, so far as the FIR is concerned, not only the same is based upon the information given by third persons but all the more the said information was also given by persons who were not eye witnesses to the incident. He, therefore, submitted that so far as the report Exhibit P-1 is concerned that is not based upon the eye witness account.
Learned counsel further submitted that so far as PW-1 Girraj Prasad is concerned, though he had reached the spot where allegedly PW-2 Ramswaroop and PW-3 Shishram were present but as per the FIR, there is no mention that he made any attempt to inquire from them about the manner in which the incident occurred and whether in fact they had seen the accused appellant Roopi @ Roop Singh inflicting the injury to the deceased and running away from the spot. It was submitted that had PW-1 Girraj Prasad, who had reached the spot met PW-2 Ramswaroop and PW-3 Shishram on the spot, it would have been natural for him to have inquired from the actual eye witnesses about the manner in which the incident occurred and to have got the first hand information regarding the same and stated so in his report (Exhibit P-1). The very fact that there is no mention in the said written report (Exhibit P-1) about Girraj Prasad having inquired about the manner in which the incident occurred from PW-2 Ramswaroop and PW-3 Shishram makes the whole story about the presence of PW-2 Ramswaroop and PW-3 Shishram as being present on the spot at the time when Girraj Prasad reached the placed of incident becomes doubtful.
Learned counsel for the appellant Shri Saurabh Arya further submitted that so far as the two alleged eye witnesses PW-2 Ramswaroop and PW-3 Shishram are concerned, they have made considerable improvements in their testimony. So far as the first version regarding the presence of PW-2 Ramswaroop and PW-3 Shishram on the spot is concerned, in Exhibit P-1 the written report, it was stated by PW-1 Girraj Prasad that both PW-2 Ramswaroop and PW-3 Shishram were at the well trying to fix the pipes for the purpose of irrigating the fields and these two witnesses along with PW-4 Phool Singh reached the spot after hearing the noise of the blows which were said to have been inflicted by the accused appellant on the deceased with the axe. It was submitted that as per the report (Exhibit P-1) the two alleged eye witnesses namely PW-2 Ramswaroop and PW-3 Shishram having reached the spot saw the accused appellant Roop singh running away into the field with the crop of jowar. On the other hand, he drew the attention of the court to the specific averments in Exhibit P-1, the written report, wherein it has been stated as follows:-
.....???? ?? ?? ???? ????? ???? ????? ????, ??????, ?????? ? ?????? ???? s/o ???? ??????? ???? ?? ????? ???? ?? ?? ??? ? ????? ?? ???? ???? ??? ?????? ?? ?? ????????? ???? ?? ??? ?? ???? ??? ??? ???? ???? ?? ??? ???? ??? ??? ?????? ?? ?? ??? ??, ???? 10.15 P.M. ?? ??????? s/o ???? ???????? ???? ?????? ????? ??????? ???? ??? ??? ????????? ???? ??? ? ???? ??? (???? ???) ?? ??? ?? ??? ???? ?? ??????????? ?? ??? ??? ????? ?? ???? ?? ?? ????? ?? ??? | ????? ?? ???? ????? ??????, ????????? ???? ? ??? ???? ????? ?????? ???? ?? ??? ??? ?? ??? ?? ???? ??? ??? ??, ??? ?? ??, ?????? ????? ??????? ???? s/o ???? ???????? ???? ???? ??? ??? ??? |.....
The prosecution witnesses, it was submitted, had specifically improved upon the aforesaid story when PW-2 Ramswaroop stated as under:-
.....???? ?? ??? ???? 10 ??? ??? ?? ??? ?? ??? ?? | ?? ????? ??? ?? ?? ? ?????? ???? ????? ?? ??? ?? | ???? ???? ?????? ?????? ?? ????????? ?? ????? ???? ?? | ?????? ??? ?? ?? ??? ?? | ?????? ??? ?? ?????? ?? ?? ??? ?? | ????????? ?????? ?? ??? ??? ??? ?? |.....
PW-3 Shishram son of Ramswaroop also stated as follows:-
.....?? ??? ?? ??? ?? ?? ?? ?? ??? ?? ??? ?? ???? ?????? ?? ??? ??? ?? | ??? ?? ?? ???? ????? ?? ??? ??? ?? | ???? ????? ??? ?? ?????? ????? ?? ??? ?? ?? ??? ?? ?? ?? ??? ?? ????? ?? ??????? ?????? ????? ?? ?? ?? ??? ?? ?? ??? ?? ?? ????????? ?? ??? ??? ?? | ???? ????? ??????? ???? ?? ???? ??? ???? ?? ??? ???? ?? ??? ??? ??? |.....
Both these witnesses were confronted with their statements under Section 161 Cr.P.C. which have been exhibited as Exhibit D-1 and Exhibit D-2. In the exhibited portion marked as 'A' to 'B' which was recorded during the course of investigation on 23.10.2002 all that was stated by PW-2 Ramswaroop is as follows:-
A???? ????? ??? ??? ?? ???? ?? ??? ?? ??? ????? ??? ?? ????? ?? 200 ??? ?? ????? ?? ????? ??? ????? ???? |B It was submitted that in the aforesaid statement under Section 161 Cr.P.C. which was the earliest version given by PW-2 Ramswaroop there was no mention that he had in fact seen the accused Roop Singh inflicting the blow with the axe upon the deceased Shiv Charan. Similarly PW-3 Shishram was also confronted with his statement under Section 161 Cr.P.C. which was exhibit as Exhibit D-2 wherein the portion 'A' to 'B' the said witness PW-3 Shishram, who was interrogated by the Investigating Officer on 23.10.2002 had stated only with regard to the accused appellant allegedly running away from the site. It was submitted that there was no mention that these two witnesses PW-2 Ramswaroop and PW-3 Shishram had in fact seen the accused appellant inflicting the blows with axe to the deceased Shiv Charan. Thus, there is considerable improvement in their statement in court from the first version given by them during investigation.
It was, therefore, submitted by learned counsel for the accused appellant that entire prosecution case hinges upon the testimony of these two alleged eye witnesses namely PW-2 Ramswaroop and PW-3 Shishram. It was submitted that right from the initial stage of Exhibit P-1 lodged by PW-1 Girraj Prasad upon the information given by Kabul, Mitthan, Chetram and Ratiram wherein it was alleged that two eye witnesses along with Phool Singh reached the place on hearing the sound of beatings being given to the deceased and then they say the accused appellant running away in the field which was improved upon by PW-2 Ramswaroop and PW-3 Shishram in their statements in the court where they alleged that they in fact saw the accused appellant inflicting the injury with an axe to the deceased Shiv Charan. Learned counsel, therefore, submitted that these two eye witnesses cannot be said to be wholly reliable witnesses and they have made improvements in their statements in court from the version given in the written report by PW-1 Girraj Prasad (Exhibit P-1) and their statements recorded during the course of investigation by the police which have been exhibited as Exhibits D-1 and D-2 of only having seen the accused running from the spot.
Learned counsel for the appellant took pains to point out that so far as all the other witnesses are concerned PW-1 Girraj Prasad in his statement has clearly stated as follows:-
.....?? ??? ??? ?? ?? ????? ?? ?????????, ?????? ?? ???? ????? ?? ???? ?? ?? ??????? ????? ?? | ?? ??? ??? ?? ?? ?????? ?? ????????? ?? ?????? ?? ?????? ????? ?? |.....
He, therefore, submitted that so far as PW-1 Girraj Prasad is concerned, he has specifically admitted that so far as the report is concerned which was lodged by PW-1 Girraj Prasad, the same was on the basis of the alleged information given by PW-2 Ramswaroop and PW-3 Shishram who have old animosity with the accused appellant. Learned counsel further reiterated that so far as this fact that PW-2 Ramswaroop and PW-3 Shishram gave any information to PW-1 Girraj Prasad is concerned that is not corroborated from the report Exhibit P-1. Learned counsel further pointed out that PW-1 Girraj Prasad frankly admitted while being confronted with the fact that accused appellant could have been falsely implicated in the matter by PW-2 Ramswaroop and PW-3 Shishram as well as PW-4 Phool Singh, as PW-1 Girraj Prasad stated as follows:-
.....?????????, ??????? ?? ?????? ?? ?????? ?? ????? ?? ??????? ?? ?? ??? ?? ???? ??? ??? ???? ????|.....
Thus, it was submitted that this fact that the accused appellant could have been falsely implicated by PW-2 Ramswaroop and PW-3 Shishram who are the alleged eye witnesses and who have made considerable improvements in their statements cannot be ruled out in the present case and this theory has not been denied by PW-1 Girraj Prasad.
Learned counsel further pointed out that the entire village had in fact turned up on the spot after the dead body of Shiv Charan deceased was found and this fact is specifically stated by all the witnesses. In this respect the statement of PW-1 was pointed out wherein it is stated as under:-
.....???? ?? ?? ???? ?? ??? ??? ???? ??? ???? ???| ???? ???? ???? ???? ?? ???? ???? ?? ????? ???? ??|.....
Similarly, the other witness PW-2 Ramswaroop has stated as follows:-
.....???? ????? ?? ?????? ?????? ?? ?? ??? ???? ???| ????? ???? ???? ?? ?????? ??? ???? ?? ?? ???? ???? ??? ??? | ???? ??? ?? ?? ??? ??? ??? ??? ??? ????? ?? ??? ?? |.....
Similar statement has been made by PW-3 Shishram who has also admitted to other villagers having reached the spot after hearing the cries raised by PW-2 Ramswaroop and himself. PW-4 Phool Singh has also stated that when he reached the spot the persons from the village had already reached the spot. The relevant portion of the statement of PW-4 Phool Singh reads as follows:-
.....??? ???? ?? ?? ??? ?? | ??? ?????? ?? ?? ???? ???? ???? ???? ?? ? ??? ?? |.....
Similar statement has been given by PW-14 Mitthan who has admitted to the presence of the other villagers on the spot. On the basis of the above, it was submitted that the prosecution and the investigating agency made no attempt to examine any independent witnesses or the persons whose fields were adjacent and were living close-by namely Radhey Shyam, Ganga Lahri or any other villagers who were present on the spot to corroborate the fact which PW-2 Ramswaroop and PW-3 Shishram, the two eye witnesses, had stated and told the gathering that the accused appellant had inflicted the injury and they had seen him doing so and had seen him running away in the jowar field of Radhey Shyam. On the contrary, it is submitted that the investigating agency and the prosecution have only examined PW-8 Rati Ram who is a cousin brother of PW-2 Ramswaroop being the son of the elder brother of Ramswaroop which is corroborated from the statement of PW-4 Phool Singh. The other witness who has been examined is PW-10 Jeetram who is also a family member of Ramswaroop. Thus all the material witnesses who have been examined by the prosecution are the family members and relatives of PW-2 Ramswaroop, whereas, as admitted by PW-14 Mitthan, examined by the prosecution in this behalf, has admitted being nephew of Ramswaroop, Natthi and Kabul. Thus, so far as the corroboration of testimony of PW-2 Ramswaroop and PW-3 Shishram is concerned, the prosecution witnesses PW-8 Rattiram, PW-10 Jeetram and PW-14 Mitthan are all family members of PW-2 Ramswaroop and PW-3 Shishram. All these witnesses claim that though they did not see the actual incident but were informed by PW-2 Ramswaroop and PW-3 Shishram that Roop Singh, the accused appellant, had murdered the deceased Shiv Charan and on that basis they are stating so. Learned counsel for the appellant pointed out that the prosecution has come with the case to show the genesis of the incident on account of the alleged altercation said to have taken place between Mitthan and the accused appellant arising because of the motorcycle of one Ram Charan Master having first being parked in front of the house of Ram Swaroop which was later on removed by Mitthan and it was snatched by the accused Roop Singh from Mitthan and later PW-2 Ramswaroop and PW-3 Shishram having forcibly taken the same from Roop Singh. As per the prosecution case, that the accused appellant Roop Singh threatened PW-2 Ramswaroop as well as PW-3 Shishram that he would kill them for this. In this behalf it was submitted that to prove the aforesaid incident the prosecution has failed to examine Ram Charan Master, the owner of the motorcycle, the use of which is said to have been the genesis of the incident and because of which the accused threatened that he would settle the score by killing PW-3 Shishram. It is submitted that for the aforesaid incident there is no independent witness to prove the same more particularly Master Ram Charan who was the owner of the motorcycle. It was further submitted that it was highly unnatural that the incident involving a motorcycle of third party would become the cause for such an altercation between PW-3 Shishram on the one hand and the accused appellant Roop Singh on the other hand have no interest in the motorcycle belonging to Ram Charan. It was pointed out by way of clarification that the witness Ram Charan who has been examined in the present case as PW-17 is a Police Constable and should not be mistaken with Master Ram Charan whose motorcycle has lead to the genesis of occurrence as per the prosecution. It was further submitted that as per the prosecution the accused appellant Roop Singh, as a result of the aforesaid altercation between Shishram and him involving the motorcycle, wanted to take revenge and came to the field of Radheyshyam for the aforesaid purpose to murder either PW-2 Ramswaroop or his son PW-3 Shishram. This has been stated by PW-2 Ramswaroop who has stated as under:-
.....???? ?? ?????? ?????? ?? ??? ?? ?????? ????? ??? ????|.....
It was submitted that the motive was to take revenge with Ramswaroop/Shishram as a result of the quarrel pertaining to the motorcycle of Ram Charan Master and in fact the accused appellant wanted to take revenge with Ramswaroop/Shishram and by mistake murdered Shiv Charan. It was also submitted that if on account of the fact that it was dark and it was a case of mistaken identity then the very theory of PW-2 Ramswaroop and PW-3 Shishram, the alleged two eye witnesses, having seen the accused appellant inflicting the blows with axe to the deceased Shiv Charan and running away and his being identified by PW-2 Ramswaroop and PW-3 Shishram is improbable and falsified. It is submitted that if the face could not be recognized at a close distance when the accused appellant was at a striking distance from the deceased then for the two eye witnesses to have identified the accused from a distance and while he was running away was all the more impossible. He, therefore, submitted that the aforesaid testimony of the genesis of the offence actually leads to the conclusion that on account of the earlier animosity between the accused Roop Singh and PW-2 Ramswaroop's family on the one hand and the deceased Shiv Charan and PW-4 Phool Singh on the other hand has in fact led to the accused appellant being falsely implicated at the instance of PW-2 Ramswaroop and PW-3 Shishram. It was further pointed out that this suggestion had been put to the prosecution witnesses and PW-3 Shishram has denied the aforesaid fact in his statement. The relevant portion of the statement of PW-3 Shishram is as under:-
?? ??? ?? ?? ???? ?????? ?? ????? ??? ??????? ?? ???????? ???? ????? ?? ?? ??? ??? ?? ?? ???? ???? ?? ???? ?? ???? ?? ???? ?? | ?? ??? ?? ?? ???? ?????? ?? ??? ?????? ???? ?????? ?? ????? ??????? ?? ????? ??????? ???? ???? ?? | Learned counsel pointed out that the aforesaid suggestion was based upon the fact that at the one hand there was old animosity between PW-2 Ramswaroop and his family members with the accused appellant Roop Singh, as admitted by PW-1 Girraj Prasad and on the other hand there was animosity between PW-4 Phool Singh and Shiv Charan, the deceased, as was admitted by PW-4 Phool Singh. So far as the animosity between Phool Singh and the deceased is concerned, PW-4 Phool Singh has admitted that he had purchased a piece of land 20 years ago from Shiv Charan, the deceased but Shiv Charan had not executed the registered sale-deed in his favour. The relevant portion of the statement of PW-4 Phool Singh reads as follows:-
"?????? ?? ?? ???? ???? ???? ?? ?? 20 ??? ???? ????? ?? ?? ????? ??? ???? ?? ??? ??? ???, ?? ??? ?? ?? ???? ?? ???????? ???? ??? ???? ???| On the basis of the above it was submitted that there was ample evidence to show that even PW-4 Phool Singh had a grudge against Shiv Charan, the deceased and there was a motive for him to have also committed the murder of Shiv Charan who was not executing the sale-deed for the land sold 20 years ago to him.
The prosecution story is that all three PW-2 Ramswaroop, PW-3 Shishram and PW-4 Phool Singh were present on the field, as stated in Exhibit P-1, the written report and were fixing pipes for irrigating their field during the night which goes to show that initially the prosecution case as set out at the very first instance was that all the three persons were present at the place of occurrence and that none other than these three were present on the spot. It is submitted that since all three persons had some interest in either eliminating Shiv Charan or taking revenge against Roop Singh, it cannot be ruled out that these three persons PW-2 Ramswaroop, PW-3 Shishram and PW-4 Phool Singh collaborated in preparing this false case and told the persons in the village that it was Roop Singh who had inflicted blows to the deceased and they joined hands in making out a false case against Roop Singh, the present appellant. Thus, PW-4 Phool Singh got his revenge with the deceased Shiv Charan who was not transferring the land and with the help of PW-2 Ramswaroop and PW-3 Shishram falsely implicated the accused Roop Singh with whom they had animosity. It was further submitted that even the prosecution case with regard to PW-2 Ramswaroop and PW-3 Shishram being eye witnesses is not corroborated by the testimony of PW-4 Phool Singh who has contradicted their testimony by stating as follows:-
??? ??? ?? ?????? ?? ????????? ?? ??? ?? ?? ???? ??? ?? ??-?? ?? ???? ???? ??, ????????? ? ?????? ?? ??? ????? ??? ??? ??, ?????? ????????? ????? ??? ?? ??? ?? | ?????? ?? ??? ?????? ???? ???? ???? ?? ????? ???? ???? ??? ???? ??| On the basis of the above, it was pointed out that as per the testimony of PW-4 Phool Singh, PW-2 Ramswaroop, PW-3 Shishram and PW-4 Phool Singh on hearing the sound, reached the spot and by the time they reached the spot, the person who has allegedly inflicted the blows had already run away from the spot. On the basis of the above, it was submitted that the prosecution case that PW-2 Ramswaroop and PW-3 Shishram had in fact seen the occurrence of the accused appellant inflicting the blow and then running away from the spot is falsified by PW-4 Phool Singh who has stated that the person who inflicted the blow on deceased Shiv Charan had fled the scene before they reached. On the basis of the above, it was submitted that in fact the prosecution case that PW-2 Ramswaroop and PW-3 Shishram were the eye witnesses is falsified by the above testimony of PW-4 Phool Singh.
Based on the above, learned counsel for the appellant pointed out that in fact PW-2 Ramswaroop and PW-3 Shishram cannot be said to be the eye witnesses and have been subsequently introduced by the prosecution and these persons were highly interested in falsely implicating the accused appellant as they had reasons of their own to do so. It was submitted that from the prosecution evidence itself it is borne out that the possibility of PW-4 Phool Singh having conspired with PW-2 Ramswaroop and his son PW-3 Shishram in committing the murder of Shiv Charan and falsely naming accused appellant Roop Singh is probabilised.
Learned counsel then pointed out that the only other piece of evidence in the instant case which could be relied upon by the prosecution is that of alleged recovery of the shirt which is said to have been worn by the accused and which was blood stained as well as the alleged recovery of the axe which was also blood stained based upon the information given by the accused appellant. Learned counsel for the appellant submitted that in the instant case the recovery memo is Exhibit P-12 pertaining to the shirt and Exhibit P-11 pertianing to the axe. Both these recoveries are said to have been made on 25.10.2002 after the arrest of the accused appellant. In order to prove the aforesaid recoveries, the prosecution has examined two witnesses namely PW-11 Dhani Ram and PW-5 Brijlal. It was submitted that so far as both these witnesses are concerned, PW-11 Dhani Ram is the real brother of the deceased and being a relative was an interested witness. It has been admitted by PW-5 Brijlal in his statement that at the time when police went to recover the axe and the shirt, there were other independent witnesses present and not only that there were lot of other independent persons who had collected on the spot. PW-5 Brijlal has stated in his statement as follows:-
.....?????? ???? ????? ??? ??? ???? ??| ?????? (PW-11 who is another witness of the recovery) ?????? ?? ??? ???? ??? ??| ????? ?? ???? ?? ????? ?? ?? ??? ???? ?? ??? ??| ????? ??????? ??? ??, ?? ??? ?? ?? ??????? ??????? ????, ?? ?? ??? ???? ??? ??.....??????? ?? ????? ???? ?? ???? ???? ????? ?? ?? ?? ??? ???? ???? ????? ???? ??| On the basis of the above, it was pointed out that this witness has admitted that there were several persons who had collected on the spot at the time when the investigating officer went inside the house of the accused appellant to effect the alleged recovery. It was also pointed out that this witness has admitted to be a relative of the deceased. It was also pointed out that this witness has clearly stated that the other witness to the alleged recovery PW-11 Dhaniram is the real brother of Shiv Charan. More importantly it was pointed out that this witness did not enter the house from where the recovery was made as such he is not proving the recovery at the instance of the accused. This witness has also stated that before entering the house the Investigating Officer did not give any search of his person before entering the house of the accused. He has also stated that the Investigating Officer went inside the house alone. Learned counsel pointed out from the above that there is no corroboration of the fact that PW-11 Dhaniram the other witness to the recovery, accompanied the Investigating Officer inside the house to make the alleged recovery. It was also pointed out that this witness did not accompany the Investigating Officer inside the house at the time recovery. As such the testimony of this witness does not help the prosecution story leading to the alleged recovery.
Similarly, so far as the other witness PW-11 Dhaniram is concerned, it was pointed out that this witness has clearly admitted as follows:-
.....?? ??? ?? ?? ??? ???? ?? ??? ???|.....
Thus, this witness is a highly interested witness and he has also admitted that there were several independent witnesses who were present on the spot. The relevant statement of this witness PW-11 Dhaniram is as follows:-
.....???? ?? ???? ?? ?? ?? |.....
On the basis of the above, it was pointed out that both the witnesses to recovery are highly interested witnesses and cannot be said to be independent witnesses and when independent witnesses were available the Investigating Officer has failed to get the recovery made in the presence of the independent witnesses which makes the recovery doubtful in the facts and circumstances of the case and against the settled position of law relating to recovery.
Learned counsel for the appellant, therefore, submitted that in the light of the above, the judgment of the learned trial court dated 30.01.2004 convicting and sentencing the accused appellant cannot be sustained and is liable to be set aside and the accused appellant be acquitted of the offence and released forthwith as he is serving his sentence in jail.
Learned Public Prosecutor, on the other hand, supported the judgment of the learned trial court and pointed out that the present one is a case based upon direct evidence of the eye witnesses PW-2 Ramswaroop and PW-3 Shishram who have distinctly seen the accused inflicting the blows with the axe on the head of the deceased and thereafter running away from the spot into the field where the crop of jowar was standing. Learned Public Prosecutor further submitted that the evidence of both these witnesses PW-2 Ramswaroop and PW-3 Shishram has remained unshaken and merely because there may be some minor contradiction their evidence cannot be discarded. Learned Public Prosecutor further submitted that in the facts and circumstances of the case, there is the recovery of the weapon of offence, an axe which was blood stained as well as the recovery of the shirt of the accused appellant at the instance of accused appellant based upon the information given by him under Section 27 of the Indian Evidence Act and both these articles were sent to the Forensic Science Laboratory and the blood which was found on the shirt as well as on the weapon of offence match with the blood on the shirt which the deceased was wearing, the gudri on the cot on which the deceased was sleeping, the strings of the charpai (cot) over which the deceased was lying and the blood smeared soil which was collected from the spot. Learned Public Prosecutor, therefore, submitted that in the facts and circumstances of the present case, no interference in the judgment of the learned trial court is called for and the said judgment deserves to be upheld and confirmed and the appeal preferred by the accused appellant dismissed.
We have given our thoughtful consideration to the rival submissions and perused the record.
Having considered the submissions in the light of the evidence which have been recorded in the instant case we are of the view that so far as the case of the prosecution based upon the evidence of two alleged eye witnesses viz. PW-2 Ramswaroop and PW-3 Shishram who are father and son respectively is concerned, it is a case of improvement from the original testimony given by them while being interrogated during investigation in the form of Exhibit D-1 and Exhibit D-2 where they had only disclosed that they had seen the accused running from the place of occurrence to their statement recorded in the court where they stated that they actually saw the accused inflicting the injury to the deceased with the weapon of offence viz. the axe. This is a major improvement and not merely a case of minor improvement in the testimony of the eye witnesses. It would have been reasonable to expect that the eye witnesses PW-2 Ramswaroop and PW-3 Shishram who alleged that they saw the occurrence to have told PW-1 Girraj Prasad that they actually saw the accused inflicting the injury to the deceased but that was not the case, as stated in the written report (Exhibit P-1) and the FIR (Exhibit P-2) which was lodged at 11:30 PM i.e. within one hour of the incident by PW-1 Girraj Prasad. The absence of the aforesaid averment of the eye witnesses actually having seen the accused inflicting the injury is significant in the facts and circumstances of the case. Thus, so far as the submission of learned counsel for the appellant that these two eye witnesses had made considerable improvement in their statements and, therefore, there is a reasonable amount of doubt whether they are wholly reliable witnesses cannot be ruled out. If the testimony of these two witnesses PW-2 Ramswaroop and PW-3 Shishram with regard to their having seen the accused appellant running away from the spot soon after the incident when weighed in the light of the testimony of PW-4 Phool Singh is considered even that is doubtful as PW-4 Phool Singh has clearly deposed as under:-
.....?????? ????????? ????? ??? ?? ??? ?? | ?????? ?? ??? ?????? ???? ???? ???? ?? ????? ???? ???? ??? ???? ??| If the testimony of PW-4 Phool Singh is to be accepted then PW-2 Ramswaroop and PW-3 Shishram had accompanied PW-4 Phool Singh to the spot and when these persons reached the spot the person who had actually inflicted the injury to the deceased Shiv Charan had already run away from the spot. Accordingly, there would have been no occasion for the eye witness PW-2 Ramswaroop or PW-3 Shishram to have actually seen the accused appellant even running away from the spot, as PW-4 Phool Singh has clearly stated that the said person having inflicted the injury had already run away from the spot when they reached. In the light of the statement of PW-4 Phool Singh, the testimony of PW-2 Ramswaroop and PW-3 Shishram son of Ramswaroop becomes highly doubtful.
Apart from the above, in the written report (Exhibit P-1) it was stated that PW-2 Ramswaroop, PW-3 Shishram and PW-4 Phool Singh were fixing the pipes when they heard the noise and saw Roop Singh, the accused appellant running away from the spot. The Investigating Officer PW-18 Narendra Singh was specifically asked with regard to any pipes being found on the spot and the Investigating Officer PW-18 Narendra Singh denied the existence of the pipes and specifically stated in his statement in court as under:-
???? ?? ??? ???? ?????? ??? ?? ???? ??? ???? ???? ??| This is further corroborated from the site plan (Exhibit P-5) which was prepared by the Investigating Officer in the morning on 23.10.2002 where in the description that was given about the site which was inspected in the morning though the Investigating Officer had reached the spot at night itself and he has stated that no such pipes as were being fixed by the three witnesses PW-2 Ramswaroop, PW-3 Shishram and PW-4 Phool Singh as stated by PW-1 Girraj Prasad in his written report (Exhibit P-1) and they were not found on the spot. Thus, the very reason for these three witnesses to be present on the spot, as stated in the written report (Exhibit P-1) by PW-1 Girraj Prasad is found missing and is not corroborated by the testimony of the Investigating Officer PW-18 Narendra Singh and which does not even find corroboration in the form of any mention of the existence of pipes on spot in Exhibit P-5, the site plan. Based on the above, we are of the view that it would be reasonable to conclude that the testimony of PW-2 Ramswaroop and PW-3 Shishram who claim in their statements in court that both of them actually saw the accused appellant inflicting injury and then running away from the spot becomes highly doubtful and even the absence of any pipes being found falsifies the reason for their presence on the spot at that time. The testimony of the above two eye witnesses in the light of the above discussion is highly doubtful as to whether they saw the accused appellant inflicting the injury and thereafter even saw the accused running away from the spot. Even so far as the question of having seen the accused appellant running away from the spot is concerned, as per the testimony of PW-2 Ramswaroop, he claims that he saw the accused in fact inflicting the injury from a distance of about 20 to 25 feet. Time of the incident was between 10:00 PM to 10:30 PM in the night and the possibility of the witnesses having actually identified the accused appellant inflicting the injury and running away from the spot is also highly doubtful. The prosecution has tried to come with the case that a bulb of 200W was present on the spot. However, so far as the site plan is concerned, we find that no distances have been recorded in the site plan (Exhibit P-5) which mentions the place from where the witnesses PW-2 Ramswaroop and PW-3 Shishram saw the accused appellant allegedly inflicting the injury or the distance between the charpai on which the deceased was lying and the field of Radheyshyam in which the crop of jowar was standing into which the accused is said to have run away from the spot. If a person was running away in the field of Radheyshyam then as per the site plan he would have been facing the direction in which he was running. As such, for the alleged eye witnesses to have seen the accused running and identified him is highly doubtful as his face could not have been visible to the witnesses. As we have held above these two witnesses reached the spot along with PW-4 Phool Singh who has clearly stated that the person who had inflicted the blow to the deceased had already gone when he (PW-4) reached the spot with PW-2 Ramswaroop and PW-3 Shishram. We find it difficult in the light of the testimony of PW-4 Phool Singh to hold that PW-2 Ramswaroop and PW-3 Shishram could have seen the accused appellant running away from the spot. In the light of the above, the testimony of PW-2 Ramswroop and PW-3 Shishram who have admittedly made improvements from their original versions given in Exhibits D-1 and D-2 is highly improbable and doubtful and they both cannot be said to be wholly reliable witnesses.
We may also add that the prosecution case by way of testimony of PW-2 Ramswaroop and PW-3 Shishram and the family members who are other witnesses produced by the prosecution namely PW-8 Ratiram and PW-10 Jeetram who are all members of the same family being brothers as well as PW-14 Mitthan, tried to bring about a case of motive on the basis of the genesis which was introduced by way of a quarrel arising out of the use of Motorcycle belonging to one Ram Charan Master by the accused. The best person who could have corroborated the aforesaid fact was Ram Charan Master himself but the prosecution has failed to examine Ram Charan Master and no plausible reason has been given for the same. On the contrary, the Investigating Officer PW-18 Narendra Singh has specifically stated that he did not interrogated Ram Charan Master inasmuch as he has stated as under:-
.....?????? ?? ????? ??? ?????? ???? ?? | Even with regard to the motorcycle he has stated as follows:-
?? ????? ?????? ?? ????? ?? ??? ???? ?? ?? ???? ????? ?? ????? ??? ?? ??? ????| ???? ????? ?? ???? ??? ????? ??? ??? ???? ?? ??? ???? ??| Thus, the genesis of the offence which is said to have occurred as a result of the dispute over the motorcycle belonging to Ram Charan Master has not at all been found to be true by the Investigating Officer in the course of his investigation and no investigation in that light was at all found to be necessary or relevant by him. Thus, the motive that was sought to be introduced for the accused appellant to have come to the spot for committing the murder and taking revenge either from Ramswaroop or his son Shishram and on account of a case of mistaken identity, he committed the murder of Shiv Charan who was sleeping there is falsified. On the contrary, from the prosecution evidence itself we find that if at all there could have been a motive the same could have been attributed to PW-4 Phool Singh who had a dispute with regard to the purchase of land on account of the fact that for the last 20 years after having paid the price for the purchase of the land the deceased Shiv Charan was not executing the sale-deed in his favour and he along with PW-2 Ramswaroop and PW-3 Shishram could have conspired to murder Shiv Charan and they falsely implicated the accused appellant with whom admittedly PW-2 Ramswaroop and PW-3 Shishram had an old enmity. There is, therefore, reasonable amount of doubt on the prosecution case so far as the involvement of accused appellant in the murder of deceased Shiv Charan is concerned based upon the prosecution evidence which has come on record.
As far as the submission of the learned Public Prosecutor that there is evidence of recovery of blood stained clothes of the accused appellant as well as of the alleged weapon of offence at the instance of the accused appellant from his house based upon the information furnished by the accused appellant, we may state that said set of evidence also does not cut much ice. Admittedly, there were several independent persons present on the spot when the Investigating Officer went to recover the articles from the house of the accused appellant. Both the alleged witnesses of the recovery namely PW-5 Brijlal and PW11 Dhaniram have both admitted to the presence of independent witnesses of the village being there when they state that ".....?? ?? ??? ???? ??? ??....." and .....???? ?? ???? ?? ?? ?? |...... For the Investigating Officer to have only taken PW-11 Dhaniram as the witness to the recovery who is the brother of the deceased in the facts and circumstances of the present case is enough to cast a doubt as to why the Investigating Officer could not have sought the presence of independent witnesses who were present on the spot and were the residents of the village to become witness to the recovery in place of highly interested and relatives as witness. Moreover, so far as PW-5 Brijlal is concerned, he has clearly stated that the recovery was not made in his presence and further that when the Investigating Officer went inside the house for carrying out the recovery he remained outside. He has further stated that recovery was made by the Investigating Officer himself who brought the articles from inside, as opposed to the articles having been brought out by the accused himself. The portion of the statement of PW-5 Brijlal is relevant for the aforesaid purpose when he states as follows:-
"......????? ?? ???? ?? ????? ?? ?? ??? ???? ?? ??? ?? | ????? ??????? ??? ??, ?? ??? ?? ?? ??????? ??????? ????, ?? ?? ??? ???? ??? ?? ..... ??????? ?? ????? ???? ?? ???? ???? ????? ?? ?? ?? ??? ???? ???? ????? ???? ?? | This witness PW-5 Brijlal has also admitted that he is a relative of the deceased Shiv Charan and in that view of the matter not only in the light of the above testimony which casts a serious doubt the manner in which the alleged recovery was made and the fact that he is relative of the deceased the recovery in the presence of both these witnesses namely PW-5 Brijlal and PW-11 Dhaniram becomes doubtful.
We may also add that so far as the submission of learned Public Prosecutor that articles namely axe as well as the shirt said to have been worn by the accused appellant were blood stained and were found to be of the same group as of the deceased, so far as the above is concerned, the Investigating Officer has clearly admitted that he never took any blood sample of the deceased or of the accused appellant. He has clearly stated as under:-
.....?? ??? ??? ?? ?? ????? ???? ?? ??? ???? ????? ???? ???? | In the light of the above, it would be difficult to conclude merely upon a prosecution evidence that Forensic Science Laboratory has found the same blood group on the articles which were recovered allegedly at the instance of the accused appellant to be sufficient for bringing home the conviction against the accused appellant particularly when we have held above that the recovery itself was doubtful.
On the basis of our above conclusion we are of the view that the judgment of the learned trial court dated 30.01.2004 convicting and sentencing the accused appellant to life imprisonment on account of offence under Section 302 I.P.C. for the murder of Shiv Charan deserves to be set aside. It cannot be held in the facts and circumstances of the present case, that the prosecution has been able to prove its case against the accused appellant beyond reasonable doubt. We would accordingly grant the benefit of doubt to the accused appellant and allow this appeal.
The accused appellant is in jail and would be entitled to be released forthwith, if not required in any other case. However, on being released, the accused appellant, within a period of two weeks of his release, shall furnish a personal bond in the sum of Rs.50,000/- with two sureties in the sum of Rs.25,000/- each, as required by Section 437-A Cr.P.C. to the satisfaction of the learned trial court for his appearance before the appellate court in case any appeal is preferred by the State against this judgment.
(DR.MEENA V.GOMBER),J. (DALIP SINGH),J. Certificate: All corrections made in judgment/order have been incorporated in the judgment/order being emailed. Solanki DS, P.A