Rajasthan High Court - Jodhpur
Dhanji vs State on 1 May, 2017
Author: G.R. Moolchandani
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 417 / 1988
Dhanjee s/o Shri Panna by caste Padore Meena, r/o Gahlia PS.
Dhambola District, Dungarpur.
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Mridul Jain & Mr. Bhagat Dadhich
For Respondent(s) : Mr. Vishnu Kachhwaha, PP
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Judgment Per Hon'ble G.R. Moolchandani, J 01/05/2017 The instant appeal is directed against the judgment dated 30/08/1988 passed by Sessions Judge, Dungarpur in Sessions Case No 4/88 by which the accused- appellant is convicted under Section 302 of IPC with life imprisonment and with a fine of Rs.2,000/- in default thereto further to undergo for six month simple imprisonment.
2. The contents of F.I.R. (Ex.P.20) reads as under :-
"lsokesa] Jheku Fkkusnkj lkgc Fkkuk /kEcksyk fo"k; %& eMj gksus ckcrA mijksDr fo"k; esa fuosnu gS fd xzke iapk;r ek.Myh xkao xksgfy;k esa Jh ukuk firk iUuk ikMksj dk eMZj gks x;k gSA ;g ckr eq>s vkt 8 cts mlds NksVs HkkbZ /kUuk firk iUuk us esjs ?kj vkdj crk;k fd esjs o ukuk ds (2 of 10) [CRLA-417/1988] vkil esa >xM+k gks x;k eSaus mls yB ls ekjk ftlls ukuk ej x;k gSA yk'k ukuk dh eks[ks ij [ksr esa iM+h gS Fkkus esa bÙkyk nsus ds fy, vkneh Hkst jgk gw¡ lkFk esa /kUuk firk iUuk ikMksj dks Hkh Hkst jgk gw¡A lks dk;Zokgh QjekosA Sd/-
(dp: yky ) ljiap ekaMyh
3. Heard rival submissions of both the parties, learned counsel for the appellant has contended that there are vital contradictions in the evidence of the prosecution and there are two FIRs Ex.P/20 and Ex.P/27, both have got distinct version. Ex.P/20 is incriminating solo accused, whereas Ex.P/27 has named three accused. All the eye-witnesses have not supported the story of the prosecution. Statement of Somli, widow of the deceased are highly doubtful, she has made several unbelievable statements. Recovery witnesses have also gone hostile. According to Ex.P/20, accused confessed the alleged crime before Sarpanch Kachru and he was sent with FIR and bearer of the FIR Ramji to police station on 03.11.1987, despite it, the arrest of the accused has wrongly been shown on 04.11.1987, the prosecution has manipulated fake documents, story of the prosecution is not proved at all, nevertheless the trial court has given a finding of guilt, which is not sustainable in the eye of law and is liable to be quashed, so appeal be allowed and findings be set aside.
Per contra, learned Public Prosecutor has said that Smt. Somli has correctly narrated the entire story, which is believable, the lath was also identified before Tehsildar, witnesses of the prosecution have supported the story of the prosecution, there is no infirmity in the findings of the trial court, the case of the prosecution is based on ocular evidence of Smt. Somli, before (3 of 10) [CRLA-417/1988] whom her husband was beaten to death, so, there is no scope of any interference in the finding of the trial court, the appeal does not bear any force, hence it be dismissed.
4. PW-1 Dhula is a hostile witness, he has denied his police statements and has said that he and Lachhman had gone to the house of Nana on Choudas of Diwali, kids of Nana were weeping, Nana was lying dead there, he did not witness anybody killing Nana, he has also said that Somli did not sustain any injury.
PW-2 Lachhman has also turned hostile, he too has denied his police statements and has said that he does not know, how Nana died nor he witnessed anybody killing him.
PW-3 Manilal has accepted his signatures on Ex.P/3 Panchnama, Ex.P/4 spot map and Ex.P/5 but he has said that none was arrested before him by the police, though he has accepted his signature on arrest memo Ex.P/6.
5. Perusal of Ex.P/6 shows that accused Dhanji was arrested on 04.11.1987 at 4.00 p.m., which collapses the story of the prosecution, because Ex.P/20, FIR, shows that it was registered on 03.11.1987 at 9.00 a.m. as FIR No.248/1987. Recital of this FIR shows that it was sent by Kachru Lal, Sarpanch of Mandli by a harbinger Ramji alongwith accused "Dhanna" and reverse (overleaf) side of this FIR has got an endorsement that it was sent through Ramji and accused Dhanna S/o Panna was accompanying him, which goes to reveal that while hand-written FIR Ex.P/20 was sent per Ramji by Sarpanch of Mandli, then accused also came as a token of surrender, who had allegedly (4 of 10) [CRLA-417/1988] admitted that he had killed his brother by lathi blow, during scuffle, whereas Ex.P/6 denotes that accused Dhanji was arrested on 04.11.1987 at 4.00 p.m. Ex.P/24 is a chalk FIR, which too confirms lodging of it on 03.11.1987 at 9.00 a.m., name of the accused under the column and description of accused persons in the FIR is candidly mentioned "Dhanna" S/o Panna Padole Meena, r/o Gohaliya.
So, preparation of Ex.P/6 or taking signature of this witness Manilal on the arrest memo is bogus and is nothing else but a sheer fabrication. Manilal has also denied recovery of any latth.
6. PW-5 Kachrulal is Sarpanch of Mandli, before whom accused Dhanna admittedly came and confessed his crime according to the version of prosecution as disclosed in Ex.P/20 and Ex.P/24, but this witness contradicted contentions of Ex.P/20 by saying that Ramji had come to him and he informed him that Nana was murdered by Dhanji and has said that Ex.P/20 dated 02.11.1987 is his hand-written, this too is not correct since Ex.P/20 is written on 03.11.1987 not on 02.11.1987.
7. This witness has also said that Dhanji was arrested vide Ex.P/6, which contains his signature and he was arrested at 4.00 p.m., as discussed earlier, Dhanji was sent vide Ex.P/20 alongwith Ramji to the Police Station and such an observation is mentioned, on the reverse side of Ex.P/20 as well as in chalk FIR Ex.P/24. So, veracity of Ex.P/6, arrest memo, becomes redundant, in his cross-examination, Kachru Lal has also denied recovery of any latth before him, which is a contradictory (5 of 10) [CRLA-417/1988] statement to the story of the prosecution, he has again said that the latth was already there at thana, as well as, Dhanji, he did not had any talk with Dhanji and has said that next day, thanedar sahab came alongwith latth and performed some act in writing.
8. PW-6 Bhurki has also turned hostile and has denied her police statements Ex.P/22. She has specifically said that deceased Nana was her "Jeth", he did not come to their house alongwith his wife nor Dhanji hit any latth to Nana.
9. PW-7 Hukli has also become hostile, this 14 year girl child is, daughter of deceased Nana, she has said that she did not witness Dhanji hitting latth to her father, having heard police statement Ex.P/3, she has refuted any such querry by the police, though a strange utterance has also emerged from her cross, since she has asserted that a settlement has taken place with Dhanji that he will feed them after release.
10. Appreciation of aforediscussed evidence, goes to show that prosecution has failed to establish any recovery because the recovery witnesses have become hostile and they have denied any such recovery, so, its seizure or transmission for FSL is apparently not desirous to be dealt with.
11. PW-11 Dr. Mukesh Khandelwal has said that Ex.P/29 relates to autopsy report conducted by him and he has further said that cause of death of Nana was head injury and resultant shock, he has further said that such an injury could occur if someone falls down on "running".
(6 of 10) [CRLA-417/1988]
12. PW-12 Somli, wife of deceased Nana, has said that she had performed her nata (second marriage) with Nana.
There is a typed FIR Ex.P/27, which has got a marginal noting of S.P., directing SHO, PS Dhambola, "Pl. register a case and investigate", this exhibit has been accepted by the Investigating Officer PW-9 Bheem Singh as well, by saying that Somli had given an application Ex.P/27, which was sent to him through S.P. Office. Contents of this FIR goes to reveal that complainant Smt. Somli W/o Nana Pandore has alleged that three persons, namely,
(i) Dhanji S/o Panna Pandore, (ii) Lachhman S/o Nana and
(iii) Dhula S/o Ratna were involved in killing of Nana, which falsifies the story of Ex.P/20 and makes testimony of this witness highly doubtful.
13. While cross-examined, "Somli" has said that Dhula, Lachhman and Dhanji were present in "baada" earlier at the time of killing but Dhula and Lachhman have been examined by the prosecution and both have turned hostile and have not supported the prosecution.
14. She has also contradicted her police statements since she has said that her husband did not follow her to the house of Dhanji but came later, contrary to the earlier versions, she too has said that Dhanji did not hit any stone to her deceased spouse and capsizing the earlier version, she has also said that she had hidden herself and went out because her daughter told her that quarrel was going on and her daughter said that her "sire" was being thrashed, so, she went rushingly (7 of 10) [CRLA-417/1988] but this kind of version is contrary to the disclosures of Ex.P/20 as well as of Ex.P/27, besides this, daughter of the deceased and Somli, PW-7 Hukli, has also become hostile and she has not ratified such a version, so, the entire testimony of this witness is highly dubious and not worthy to be believed and relied.
15. Testimony of PW-9 Bheem Singh, Investigating Officer is also of no worth since Ex.P/6, arrest memo, as discussed above, has already found to be a fake document, so far as narration of recovery of "latth" is concerned, that too has got no relevance because the recovery witnesses have not supported it, Bheem Singh, Investigating Officer, has also said that the said Ex.P/20 was presented before him on 03.11.1987 by Ramji and a case under Section 302, FIR No.248/1987 was registered and its chalk FIR is Ex.P/24, and both these papers have got an assertive mentioning that Ex.P/20 FIR was sent through Ramji along with accused Dhanji, so, his arrest on subsequent day becomes untrue.
16. Perusal and examination of entire aforediscussed story and evidence of the prosecution categorically reveals that the prosecution has failed to prove its case, all major witnesses of the prosecution have turned hostile, even the recovery witnesses have not supported the alleged recovery of "latth", likewise, there are vital and substantial contradictions in the testimony of "Somli", wife of deceased, there are two FIRs, Ex.P/20 as well as Ex.P/27 (typed one), both have got "distinct"
(8 of 10) [CRLA-417/1988] versions. Ex.P/27, which is a type-written application, reveals that three accused were involved in killing Nana, whereas Ex.P/20 incriminates solo accused. Eye-witnesses of the event have also not supported version of the prosecution. Doctor has also opined that the kind of injury found on the head, could result by a "running" fall, hence, the prosecution has miserably failed to establish and connect the accused with the alleged crime beyond confines of reasonable doubt.
17. In a recent law as laid down in H.D. Sikand (D) Thro's Lrs Vs. Central Bureau of Investigation & Anr. [2017 Cr.L.R. (SC) 58], Hon'ble the Supreme Court has held that if the offence is not established and the prosecution fails to prove the offence beyond reasonable doubt, then order of acquittal is justified.
18. In Narendra Singh & Anr. Vs. State of madhya Pradesh [(2004) 10 SCC 699], the Hon'ble Apex Court has recognized presumption of innocence as a human right and has gone on to say that:
"30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be''and 'must be'."
In Baijnath & Ors. vs. State of Madhya Pradesh, 2017 1 SCC 101, Hon'ble the Supreme Court has held that in the cases of deficiencies of proof, benefit would be available to the person charged and in Narendra Singh & Another v. State of M.P., (2004) 10 SCC 699, the Hon'ble (9 of 10) [CRLA-417/1988] Apex Court has also held that in event of there being two possible views, one supporting the accused should be upheld and Hon'ble the Supreme Court has recognized presumption of innocence as a human right.
19. In totality of aforediscussed evidence and material, we are of considered view that the trial court faulted in arriving at the findings of guilt and the accused-appellant is entitled to be acquitted on the basis of benefit of doubt.
Therefore, the appeal is allowed and the impugned judgment is quashed and set aside, resultantly appellant-accused stands acquitted. The appellant-accused is already on bail, so, he is not required to surrender, his bail bonds are discharged.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish a personal bond in the sum of Rs.50,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
Record of learned trial Court with copy of this judgment be returned forthwith.
(G.R. MOOLCHANDANI), J (GOPAL KRISHAN VYAS)J. /skm/ (10 of 10) [CRLA-417/1988]