Rajasthan High Court - Jodhpur
Ratan Singh And Ors vs State Of Rajasthan on 17 October, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:40787-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 237/1993
1. Ratan Singh S/o Nand Singh, by caste Rajput, R/o Khaida,
Distt. Bhilwara.
2. Siya Ram S/o Daryavdas, by caste Vaishnav, R/o Khaida,
Distt. Bhilwara.
3. Bhagwat Singh S/o Sobhag Singh, by caste Rajput, R/o
Khaida, Distt. Bhilwara.
4. Narayan S/o Kishan Mali, R/o Khaida, Distt. Bhilwara.
5. Bhanwar Singh S/o Narayan Singh, by caste Rajput, R/o
Khaida, Distt. Bhilwara.
6. Ladu Lal S/o Bansi Das Vaishnav, R/o Khaida, Distt.
Bhilwara.
7. Bhanwar Singh S/o Sobhag Singh, by caste Rajput, R/o
Khaida, Distt. Bhilwara.
(All at present lodged in Central Jail at Ajmer)
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr.Praveen Vyas, Amicus Curiae.
For Respondent(s) : Mr.C.S.Ojha, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN Judgment Judgment Reserved on : 18.09.2024 Judgment Pronounced on : 17.10.2024 <><><> [Per Hon'ble Mr. Justice Munnuri Laxman] :
1) The present appeal is directed against the judgment dated 30.06.1993 passed by the learned Additional Sessions Judge, Bhilwara on the file of Sessions Case No.110/1991, whereby the appellants were convicted for the offences under Sections 147, 302 read with Section 149 of IPC and sentenced to undergo (Downloaded on 19/10/2024 at 10:55:40 PM) [2024:RJ-JD:40787-DB] (2 of 11) [CRLA-237/1993] rigorous imprisonment for life and to pay a fine of Rs.200/- each;
in default of payment of fine, to further undergo 3 months' simple imprisonment for offence u/Sec. 302 read with Sec.149 of IPC, and to undergo 1 year's simple imprisonment for offence under Section 147 of IPC. The appellants were acquitted of the charge under Section 148 of IPC.
2) The present appeal is at the instance of the accused- appellants.
3) The sum and substance of the prosecution case is that there was a way dispute in between the accused and the deceased-party. Accused were also convicted on the complaints made by the deceased-party with regard to such a way dispute. On 08.09.1991 at about 10:00 a.m., the deceased-Bhopal Singh, Mahendra Singh (maternal grandson of the deceased) and Virendra Singh (paternal grandson of the deceased) were standing on the roadside of village Khaida to board the bus. Accused Ratan Singh (A-1) and Siyaram (A-2) with lathis in their hands were also standing there. The complainant-Laxman Singh, who is son of the deceased-Bhopal Singh, was coming from the field along with oxen to go back to his home. At that time, accused-Bhagwat Singh (A-3), Narayan Mali (A-4), Bhanwar Singh S/o Narayan Singh (A-5), Ladulal (A-6) and Bhanwar Singh S/o Shaubhag Singh (A-7) suddenly came from the field of Kalu Nayak armed with lathis and provoked A-1 and A-2 to kill Bhopal Singh. All the accused allegedly started beating the deceased-Bhopal Singh with the lathis with intention to kill him. They inflicted injuries on the head, hands and neck of the deceased and there was a profuse bleeding from the head, hands and neck of the deceased. When (Downloaded on 19/10/2024 at 10:55:40 PM) [2024:RJ-JD:40787-DB] (3 of 11) [CRLA-237/1993] Laxman Singh, Mahendra Singh and Virendra Singh tried to rescue the deceased, they were threatened to meet the same fate, which the deceased met. Therefore, they could not go to rescue the deceased. After the incident immediately, the deceased was shifted to hospital and an FIR was lodged at Police Station Banera, District Bhilwara for offences under Sections 147, 148, 149, 307 of IPC.
4) The police during the course of investigation recorded the statement of Bhopal Singh (deceased) and also visited the scene of offence, prepared the scene of panchnama and recovered the incriminating material found at the scene of offence. On 09.09.1991, the deceased while undergoing treatment succumbed to his injuries and therefore, the offence was altered. The inquest was conducted over the body of the deceased and body was subjected to postmortem examination. On arrest, accused made disclosure statements under Section 27 of the Evidence Act under Exhibit-P/15 to P/21 and basing on such disclosure statements, the lathies (sticks) from each of the accused were recovered under Exhibit-P/22 to P/28. After investigation, the police found no role of Narayan Singh and for the remaining accused i.e. A-1 to A-7, the chargesheet was filed for offence under Section 147, 148, 149 and 302 of IPC.
5) Initially, the cognizance was taken against A-1 to A-7. Subsequently, basing on the evidence of PW-1 Laxman Singh, accused-Narayan Singh S/o Udai Singh (A-8) was summoned to face the trial. The prosecution in support of its case examined PW- 1 to PW-12 and relied upon the documents Exhibit-P/1 to P/29. (Downloaded on 19/10/2024 at 10:55:40 PM) [2024:RJ-JD:40787-DB] (4 of 11) [CRLA-237/1993] Accused in support of their case examined DW-1 and DW-2 and relied upon the documents Exhibit-D/1 to D/7.
6) The trial court on the basis of evidence on record found that no case was made out against accused-Narayan Singh S/o Udai Singh (A-8) and accordingly, acquitted him of all the charges. Accused No.1 to 7 were also acquitted of the offence under Section 148 of IPC. However, accused No.1 to 7 were convicted for offences under Sections 147, 302 read with Section 149 of IPC and sentenced them as indicated herein-above. Hence, the present appeal.
7) Heard the learned counsel for the appellants-accused and the learned Public Prosecutor appearing of the State.
8) The learned counsel appearing for the appellants-accused has contended that the entire case of the prosecution rests upon related witnesses of PW-1 and PW-2, who are no other than own son and grandson of the deceased. PW-3 Mahendra Singh, who is other grandson of the deceased, has not supported the prosecution case. According to learned counsel, the evidence of such related witnesses are suffering from various inconsistencies and the conduct of these witnesses in not intervening the attack to rescue the deceased, rules out their presence at the scene of offence. The statements of these witnesses show that accused Nos.1 to 8, who were holding the lathies, attacked on the deceased. Each one of them inflicted the injuries. Whereas, the postmortem report reveals that only 4 injuries were found on the body of the deceased. Out of them 3 injuries were fatal in nature and another injury was lacerated wound, which resulted in fractures. The absence of multiple injuries rules out the theory set (Downloaded on 19/10/2024 at 10:55:40 PM) [2024:RJ-JD:40787-DB] (5 of 11) [CRLA-237/1993] up by the witnesses that 8 persons attacked on the deceased with lathies. This creates doubt over the presence of the witnesses at the time of the incident.
9) The learned counsel for the appellants-accused also contended that the statements made before the police relating to investigation in the present case clearly disclose that 7 persons involved in the incident. Whereas, the statement made by PW-1 Laxman Singh before other Investigating Officer in the proceedings under Section 107 of Cr.P.C. shows that 34 persons participated in the attack on the deceased. These inconsistencies have been clearly established from the evidence relied upon by the prosecution and produced by the accused. These material discrepancies were not properly appreciated by the trial court.
10) The learned counsel for the appellants-accused also contended that the prosecution claimed to have recorded the statement of Bhopal Singh (deceased) and such a statement become oral dying declaration of the deceased. It was recorded into writing by Nazir Mohammad, A.S.I. (PW-10). This important piece of evidence was withheld by the prosecution. No reasons have been assigned for withholding such evidence and according to learned counsel, withholding such important piece of evidence suggest case set up by the prosecution is false. Suppression of this crucial dying declaration of the deceased coupled with absence of multiple injuries on the deceased when the specific evidence of witnesses that all the accused attacked on the deceased, clearly create a doubt over the prosecution case. Such evidence of related witnesses requires to be scrutinized closely. On close scrutiny, their evidence found to be doubtful. The evidence (Downloaded on 19/10/2024 at 10:55:40 PM) [2024:RJ-JD:40787-DB] (6 of 11) [CRLA-237/1993] of PWs-1 & 2 require corroboration, which is lacking in the present case.
11) Lastly, the learned counsel for the appellants-accused has submitted that in spite of seizure of such lathis (sticks), the prosecution failed to produce the same in the court. Had these sticks have been produced, it would have been made out whether the injuries with such sticks are possible on the deceased. Non- production of such an important material objects in spite of seizure of them creates doubt over the prosecution case. Therefore, the accused should be given the benefit of doubt.
12) The learned Public Prosecutor has submitted that eyewitnesses' evidence cannot be discarded merely because they are closely related to the deceased. The eyewitnesses examined by the prosecution have categorically stated the role of the accused. Merely because some discrepancies exist in their evidence, such discrepancies cannot be treated as a circumstance to discredit the evidence of the eyewitnesses. According to learned Public Prosecutor, the trial court has rightly relied upon the evidence of PWs 1 and 2 and rightly convicted the appellants, which does not require any interference.
13) The learned Public Prosecutor also contended that the participation of 34 witnesses was made in the proceedings under Section 107 of Cr.P.C. based on threat perception and the statement cannot be taken to mean that 34 persons have participated in the attack. The statements allegedly made before the Investigating Officer in the proceedings under Section 107 of Cr.P.C. cannot be taken to discredit the evidence of witnesses. The learned Public Prosecutor also submitted that there is lapse on the (Downloaded on 19/10/2024 at 10:55:40 PM) [2024:RJ-JD:40787-DB] (7 of 11) [CRLA-237/1993] part of the prosecution in not producing the dying declaration and the material objects seized at the instances of the accused, but such a lapse cannot go for the benefit of the accused when there is convincing eyewitness account before the court below. Therefore, such a lapse cannot go to the disadvantage of the prosecution and he prayed for dismissal of the appeal.
14) We have carefully considered the rival contentions and perused the impugned judgment and other materials on record.
15) The evidence of PW-1 and the First Information Report show that the offence occurred at the bus-stop, which is a public place. In the initial report, the complainant referred participation of 7 persons i.e. A-1 to A-7. The same is the case of the complainant in his statement u/Sec. 161 Cr.P.C. also. However, in the evidence before the court, PW-1 Laxman Singh has attributed the role to accused-Narayan Singh (A-8). According to him, accused No.8 instigated the other accused to murder the deceased. Whereas, in the First Information Report, A-3 to A-7 who came from the Kalu Nayak field armed with lathis provoked A- 1 and A-2 to kill the deceased.
16) The evidence of PWs-1 and 2 show that 8 accused were holding lathis and all of them attacked on the deceased with them. The postmortem report shows that there were 4 lacerated wounds found on the body of the deceased. One is on the top of the head and others are on parietal region and frontal bone and right arm. When all the eight persons had participated and inflicted lathis blows, there must be more than 4 injuries. The absence of multiple injuries other than 4 injuries suggests non-participation of some members of the unlawful assembly. Even though their (Downloaded on 19/10/2024 at 10:55:40 PM) [2024:RJ-JD:40787-DB] (8 of 11) [CRLA-237/1993] presence was there, they were not involved in infliction of the injuries. The postmortem report do not indicate the presence of any injuries on the legs. Whereas, the evidence of these two witnesses show that accused also inflicted injuries on the leg of the deceased. This lapse is one of the circumstance to discredit the witnesses' testimony.
17) The evidence of PWs-1 and 2 show that they were only mute spectators. They claimed that they could not make effort to rescue the deceased as they were threatened. PW-3 Mahendra Singh do not support the prosecution story and he has turned hostile. The trial court has rightly discarded the evidence of PW-3. The incident occurred on the day light. There is no specific overt act attributed to each of the accused. The general and omnibus statements have been made that all the accused had attacked on the deceased. If multiple injuries were present then the participating of all the accused can be inferred and absence of specific overt act in the group attack can be ignored. The ocular evidence with regard to attack by all the accused are also not supporting with the medical evidence. There is no rule that the evidence of related witnesses require any corroboration and such evidence should be discredited on account of relation. The only rule is that such an evidence has to be carefully and cautiously scrutinized. If such evidence is sterling in nature, it does not require any corroboration unlike interested witnesses. PWs-1 and 2 are not interested witnesses. There was no motive attributed to them to speak against the accused so as to gain any interest in the litigation.
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18) The statement of PW-1 Laxman Singh under Exhibit-D/1, which was made to the Police Officer in order to initiate proceedings under Section 107 of Cr.P.C. shows that 34 persons involved in the attack on the deceased and most of the names were provided by him. It is also stated that the police could only involve 7 persons and other accused were not chargesheeted. This specific statement is going against the First Information Report and the statement made to the police and also the evidence in the Court. PW-1 Laxman Singh and PW-2 Virendra Singh attributed role to A/8, which the court below did not accept. The statement of participation of more accused than actual accused clearly shows that there is motive to falsely implicate more person than actual participants in the incident. The participation of the accused with reference to injuries shows that the testimony of PWs-1 and 2 is exaggerated one and they tried to implicate more and more persons. Such evidence requires corroboration and it cannot be said to be sterling in character.
19) The other lacuna on the part of the prosecution is that the lathis recovered at the instance of the accused were not produced before the Court. There is no reason for non-production of such material objects and it is not known whether it is possible to inflict such injuries with the alleged sticks/lathis to the deceased. The other lapse on the part of the prosecution case is suppression of oral dying declaration of the deceased, which was recorded by the A.S.I. and such dying declaration is crucial material in this case. There is no proper explanation for not bringing such an important piece of evidence on record. Perhaps, such suppression gives inference that it is against the prosecution (Downloaded on 19/10/2024 at 10:55:40 PM) [2024:RJ-JD:40787-DB] (10 of 11) [CRLA-237/1993] case and the non-production of such a crucial piece of evidence raises doubts about the prosecution's assertion regarding the number of accused involved in this case.
20) Examining the above perspective of the evidence carefully, this Court feels that it is unsafe to rely upon those two eyewitnesses, who are closely related to the deceased unless some corroboration gets from the other evidence. Such corroboration is lacking in this case. This Court is not inclined to sustain the conviction of the appellants on the basis of above two eyewitnesses, more particularly suppression with regard to dying declaration of the deceased. Therefore, the benefit of doubt is to be extended to the accused-appellants.
21) In the result, the criminal appeal is allowed. The conviction and sentence imposed by the trial court vide impugned judgment dated 30.06.1993 is set aside and the appellants are acquitted of the charges under Section 147, 302 read with Section 149 of IPC. The appellants are on bail, their bail bonds shall continue for 3 months and thereafter, stand discharged.
22) Keeping in view the provision of Section 437-A Cr.P.C., appellants are directed to furnish a personal bond in a sum of Rs.40,000/- each and a surety bond in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, appellants, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court as soon as he would be called upon to do so.
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23) This Court is thankful to Mr.Praveen Vyas, who has rendered his assistance as Amicus Curiae on behalf of the accused-appellant, in the present adjudication. (MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J 185-NK/-
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