Rajasthan High Court - Jaipur
Ramswaroop And Anr. vs State Of Rajasthan on 28 July, 2003
Equivalent citations: 2003CRILJ3960, RLW2004(1)RAJ109, 2003(4)WLC84
JUDGMENT S.K. Sharma, J.
1. This criminal appeal by accused appellants Ram Swaroop and Krishna Kumar arises out of the judgment and order dated 7,8.98 passed by the Additional Sessions Judge Jhunjhunu, thereby convicting them for offence under Section 302 read with Section 34 IPC and sentencing each of them to undergo life imprisonment and a fine of Rs. 1000/-, in default of payment of fine, each to further undergo 3 months simple imprisonment.
2. Succinctly stated that facts leading to this appeal are that on 7.9.97, PW 1 Suwa Puri lodged a written report at Police Station, Nawalgarh, alleging therein that on 7.9.97 at 4.30 PM his son Ramniwas was going for dinner in the 'Mel' of Keshar Bhat in the jeep of Sadhu Ram and one Lalu Ram was also accompanying them, since there was no way to cover further distance by Jeep, they left the jeep in Johdi and proceeded on feet, When they reached near the field of Sultanpuri, the accused appellants along with Fooldi and Bhanwari came there and stooped them As per the Report, Krishna, Ram Swaroop and Bhanwari had 'Dharias' in their hands, while Phuldi and a Gandasi, On the request with folded hands having been made by Sadhu Ram, the accused replied that they have no concern with him and that they will kill Ram Niwas. In the mean-time, Ram Niwas escaped from the seen. But the accused persons chased him and caught him and then belaboured him mercilessly. Having felt that Ram Niwas has died, the accused persons ran away. The complainant stated that after the accused left the place, his son went to the house of Chauth Puri which was situated nearby and then he was called upon. When the complainant reached the house of Chauthmal, he was informed of the incident by him son. The complainant took her son to the police station and lodged the report. At that time, has son was unconscious. On the above written report, police registered as case for offence under Sections 341, 307, 323 and 324 IPC wide FIR No. 282/97 (Ex.P2) and proceeded with the investigation. Injured Ram Niwas was medically examined in Government Hospital, Sikar by PW 17 Dr. Govind Ram Tanwar, who found as many as 19 injuries made Injury Report, Ex.P. 16 Out of 19 injuries, 10 were caused by sharp edged weapon, while rest were caused by blunt object. Having seen the condition of injured, he was referred to SMS Hospital, Jaipur for treatment, where he succumbed to injuries on 11.9.97. Thereafter, the police added Section 302 IPC. In the course of investigation the police prepared the site plan, Ex.P.3 and seized blood stained soil and controlled soil vide memos Ex. P34 and P5. The police also prepared the inquest report Ex.P. 14 and got conducted autopsy on the dead body by PW 18 Dr. M.D. Qureshi and collected post mortem report Ex.P17. Accused Ram Swaroop and Krishna Kumar were arrested vide memos Ex.P7 and P8. Accused Ram Swaroop and Krishna Kumar furnished information Exs.P18 and P19 respectively under Section 27 of the Evidence Act regarding recovery of Dharia. Pursuant to their information the police recovered 'dharia' from each of the accused vide recovery memos, Ex.P.11 and P12, respectively. The Police also recorded the statements of witnesses under Section 161 Cr.P.C.
3. Having completed investigation as against the present appellants the present appellants, the police submitted a charge sheet in the court of Additional Chief Judicial Magistrate, nawalgarh on 21.11.1997 and kept pending investigation against other accused persons as provided by Section 173(8) Cr.P.C. The learned Magistrate, having found the case exclusively triable by the court of Sessions, committed the case to the court of Sessions Judge. The case came to be tried by the Additional Sessions Judge, Jhunjhunu. The trial court on the basis of evidence and material collected during investigation and placed before it and after hearing arguments of counsel for the parties, framed charges against the appellants for offence under Section 302/34 IPC. The appellant denied the charges and claimed trial.
4. In the course of trial, the prosecution, in support of case examined as many as 20 witnesses and got exhibited numerous documents. After examining prosecution witnesses, the accused were examined under Section 313 Cr.P.C. The accused did not examine any witness in their defence. At the conclusion of trial, the learned trial court found the charge duly established against the appellants and accordingly convicted and sentenced them in the manner stated hereinabove. Hence this appeal against conviction and sentence.
5. We have heard learned counsel for the parties and have gone through the impugned judgment and the evidence and material on record. The prosecution has examined in all 20 witnesses, out of which 4 witnesses, namely PW 2 Sadhu Ram, PW 3 Lal Chand, PW 5 Arjun Puri and PW 15 Navrang Puri have claimed themselves to have witnessed the incident. Before proceeding further, we would like to have reappraisal of the evidence of the eye witnesses.
6. In his deposition Sadhu Ram (PW. 2) stated that while he was going in his jeep to attend the dinner in the 'Mel' hosted by Keshar Bhat, he gave lift to lalu Ram Jat and Ram Niwas. As jeep could go only till 'Johd' they got down from the jeep and proceeded on foot. When they reached near the filed of Ganesh Jat, they found Ram Swaroop, Krishna and Phooldi, telling as to where were they going with the thief. Ram Swaroop and Krishna were armed with 'Dharias' whereas Phooldi was having Gandasi. He requested them with folded hands not to do anything. In the meanwhile Ram Niwas started running but was caught and belaboured by the accused. Krishna inflicted Dharia blow on the head of Ram Niwas. On being threatened by the accused he and Lalu rushed towards he Jeep. On Bhanwari @ Sevli hit Gandasi on the Jeep.
7. Lal Chand (PW.3) deposed that while he and Ram Niwas were going to attend dinner organised by Keshar Bhat, Ram Swaroop, Krishna and Phooldi met them on the way. They were armed with Dharias and Gandasi. Krishna gave Dharia blow which hit the left hand of Ram Niwas. Ram Niwas started running but fell down and the accused belaboured him.
8. Arjun Puri (PW.5) stated the while he and Naurangpuri were returning after attending the feast of Keshar Bhat they saw Krishna Kumar, Ram Swaroop, Phooldi and Bhawri beating Ram Niwas. Krishna and Ram Swaroop were armed with Dharias whereas Phooldi and Bhanwari had Gandasis. He did not see as to on which part of the body the injury was caused and by whom. Naurangpuri (PW. 15) also deposed that on his return from 'Mel' of Keshar Bhat, he and Arjunpuri had seen Ram Swaroop, Krishna Kumar Phooldi and Bhanwari belaboring Ram Niwas with Dharias and Gandasis near the field of Polu Bhat.
9. Dr. M.D. Qureshi (PW.18) performed autopsy on the dead body of Ram Niwas on September 11, 1997 and as per the post mortem report, Ram Niwas sustained following antemortem injuries:
1. Laceration 1 1/2" x 1/2 cm. on beginning of nose and 1/2 x 1/2 cm. (torn) Rt. on nostral with blackish brownish in colour.
2. Missing of Rt. Canine and lateral incised tooth upper and Rt. Lower, central incised with corresponding contusion dark bluish colour to Rt. Lip.
3. Stitched wound obliquely on left frontal parietal region 8 cm. long and 4 cm. long stiched would over mid occipital region of skull. On further dissection there is sub scalp haernotoma left frontal region 7 x 1 1/2 cm. size with subdural haernotoma over left fronto parietal region and sub scalp haernotoma over mid occipital region. On further examination there is fracture of left fronto parietal lobe accumulated by dark red antimortem haemotoma over left frontal region.
4. Diffused swelling over left ankle joint area with pit's fracture ankle joint with antemortem haemotoma.
5. Diffused swelling over Rt. ankle joint with fracture of both mellular bones and fracture of fibula bone Rt. side 1.3 rd with antemortem haemotoma.
6. Two stitched wounds on dorsum of left hand 1 1/2 cm x 1 1/4 cm. with diffused swelling on dissection antemortem haemotoma found.
7. There stitched would 2 cm x 1/2 cm. x 1 cm. on proximal part of index, middle, and ring finger palmer aspect.
8. Stitched would 5 cm. obliquely pst aspect Rt. forearm 1/3 rd with dark black scab.
9. Stitched would 2 cm. long rt. forearm L. l/3rd portion.
10. Multiple lacertations 5 x 2 cm. to 1/4 x 1/4 cm. on Rt, shoulder, clavicular region Rt. arm and forearm and hand at places with bruised area 15 x 16 cm. on Rt, shoulder, Rt. Clavicular region and Rt. supra scapular region. On further dissection effusion and extranavation of dark red blood.
11. Stitched would 2 1/2 cm. long on upper lip mid part.
12. Stitched would 2 cm. long anterior aspect of left leg L 1/3 rd.
13. Multiple lacerations 4 x 1 cm. to 1/4 cm. over both knee and legs and both ankle (Torn) at places.
14. Laceration 5 cm. long on thorasic lumber region.
15. Bruise 10 x 8 cm. on upper part of buttock and sacro iliac region with effusion and extermination, of dark red blood on cut section.
16. Multiple lacerations 6 1/2 cm. x 1/2 cm to 1/2 cm. x 1/2 cm. on postero lateral aspect of left arm, forearm, elbow, left hand dorsatly top of left shoulder.
17. Bruise 21 cm. to 4 cm. on left arm upto left shoulder anteriorly 12 x 10 cm. on middle of left shoulder. On further dissection effusion and extermination of dark red blood found.
As per Dr. M.D. Qureshi cause of the death of Ram Niwas was coma brought about as a result of head injury.
10. Having scrutinsed the testimony of the prosecution witnesses we find the fact situation of the case as under:
(a) Information Suwapuri (PW. 1), the father of the deceased, in his deposition stated that he did not see the occurrence and he only put his thump impression on the report as it was written by some one else. In his cross examination he however deposed that his son Ram Niwas was involved in many criminal cases.
(b) Sadhu Ram used to appear as a witness in other cases and this fact was admitted by him in his cross examination.
(c) Lal Chand PW. 3 resided at a distance of three and half Kilometers from the place of incident. He admitted that at the place of occurrence crop of Gunwar about the height of six feet was standing and because of the crop nothing could be visible at a distance of 10 feet.
(d) Statements of Sadhu Ram (PW.2) and Lai Chand (PW. 3) are self contradictory in regard to causing the injury by Krishna Kumar and the place of incident. On stated that Krishan Kumar caused injury on head and incident occurred near the field of Ganesh Jat while other deposed that Krishna Kumar gave blow on the left hand near the field of Polu Bhat.
(e) Chothu Puri (PW.4) deposed that even after receiving severe injuries, Ram Niwas could manage to reach at his house but he did not see as to on which part of his body Ram Niwas received injuries. Arjunpuri (PW.5) and Naurangpuri (PW. 15) deposed that they did not see Sadhu Ram and Lal Chand near the place of incident.
11. It is thus evident that on their own showing Sadhu Ram (PW. 2), Lal Chand (PW. 3), Arjunpuri (PW. 5) and Naurangpuri (PW. 15) were mere chance witnesses. Sadhu Ram and Lal Chand did not see Arjunpuri and Naurangpuri near the place of occurrence whereas Arjun Puri and Naurangpuri did not find Sadhu Ram and Lal Chand in the vicinity at the time of incident. It is also established from record that all the four alleged eye witnesses did not reside any where near the place of Incident where 'Guvar' crop of the height of six feet was standing. It is well settled that the testimony of a chance witness, although not necessarily false, is proverbially unsafe. If by coincidence of chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. Such a piece of evidence is not necessarily incredible but does require cautions and close scrutiny. As already noticed by us that Sadhu Ram while deposed that Krishna Kumar inflicted Dharia-blow on the head of Ram Niwas, Lalchand stated that Dharia-blow was give by Krishna Kumar on the left hand. Such a material inconsistency in the statements of chance witnesses creates doubt about their presence at the time of occurrence. It is the admitted case of the prosecution that Sadhu Ram, his jeep driver and Lal Chand the three grown up persons were present, yet without intervention by any body, Ram Niwas, a known criminal, was belaboured by two men and tow women. It is inexplicable as to whether it was possible to see the incident while Guvar crop of the highs of six feet was standing there. Undoubtedly Ram Niwas had received severe injuries but in view of his criminal back ground it does not appear sound and reasonable that he would receive injuries without making any retaliation. This testimony of Chothpuri that Ram Niwas after receiving severe injuries could manage to cover the distance of five hundred feet and reach his house, does not appear to us trustworthy.
12. After having analysed the fact situation of the case of hand we find that the prosecution has withheld the origin and genesis of the Occurrence. In Assistant Collector vs. V.P. Sayed Mohammad (1), their Lordships of the Supreme Court indicated that onus of proving the facts essential to the establishment of the charge against an accused lies upon the prosecution and the evidence must be such as to exclude every reasonable doubt about the guilt of the accused. An accused cannot be convicted of an offence on the basis of conjectures or suspicions. If a reasonable doubt arises in the mind of the court, after taking into consideration the entire material before it regarding the complicity of the accused the benefit of such doubt should be given to the accused. On examining the evidence of Sadhu Ram, Lal Chand, Arjunpuri and Naurangpuri from the point of view of trustworthiness we find ourselves unable to place any reliance on it.
13. The learned trial Judge in our considered opinion, did not appreciate the evidence of these witnesses in a right perspective and committed illegality in convicting and sentencing the appellants.
14. As a result of the above discussions we allow the appeal and set aside the impugned judgment of the learned trial Judge. The appellants stand acquitted of the charge under Section 302 read with Section 34 IPC. The appellants are in jail. They shall be set at liberty forthwith, if not required in any other case.