Rajasthan High Court - Jaipur
Abhay Singh And Ors. vs State Of Rajasthan on 17 July, 1987
Equivalent citations: 1987WLN(UC)489
JUDGMENT Gopal Krishna Sharma, J.
1. This appeal is directed against the judgment dated 19-10-1984 passed by the Addl. Sessions Judge, Kishangarhbas convicting and sentencing the appellants under Section 302/34, IPC and sentenced each appellant for life imprisonment and a fine of Rs. 100/-, in default of payment of fine, to undergo 3 months' R.I.
2. According to the prosecution story Kishan Lal lodged a report on 6-9-1983 at 11.00 a.m. at Police Station, Mandawar alleging that on 6-9-1983 in the morning at 5.00 a.m. he went to his field to bring grass and when he was returning with the bundle of grass to his house after crossing two fields from his field at 6.00 a.m., all of a sudden Abhay Singh, Gabdu, Srichand, Mst. Chidiya and one more person attacked him. Abhay Singh was armed with 'Farsa' and he gave Farsa blow on his left leg. The other persons also inflicted injuries with lathis on him. Abhay Singh gave another Farsa blow on the right hand. Kishan Lal raised hue and cry and by that cry Mittal and Ram Kumar were attracted and came to the spot. The assailants ran away from the spot. Mittal and Ram Kumar went to the village and his wife, Sarpanch and other persons came to the spot and he was taken away in the camel-cart by his wife and Mittal. The allegation is that on account of old enmity he was beaten by the accused-persons.
3. On this report a case under Sections 147, 148, 149, 324 and 323, IPC was registered. Later on Kishan Lal succumbed to his injuries and the case was converted under Section 302, IPC.
4. The Police after due investigation submitted a challan against the present appellants and one Shyama under Sections 147, 148, 302 & 149, IPC.
5. The trial Court framed charge against Abhay Singh under Sections 148, 302/149, IPC while framed charge against other accused-persons under Sections 147 & 302, IPC. The accused-persons pleaded not guilty and claimed trial.
6. The prosecution has examined 14 witnesses to establish its case. The appellants denied all the allegations made against them. The appellant Abhay Singh took the plea of alibi and his contention was that at the relevant time he was at Maheshwari Metal Works. Rewari. It was also contended that the report Ex.P 6 is forged document as this report bears the thumb-impression of Kishanlal deceased though he was a literate person and knew reading and writting. He always put his signature.
7. After concluding trial the learned Additional Sessions Judge found that no case is made out against Shyama and he acquitted him. He, however, found the appellants guilty of the offence under Section 302/34 IPC and sentenced them as mentioned above.
8. The learned Counsel for the appellants argued that the statements of Kaushalya PW 1, Ramkumar PW 4 and Mittal PW 8 are material and on the basis of these statements the trial court has found the appellants guilty. The statements of all these witnesses are unreliable statements, contradictory and no case is made out on their testimony. It was also argued that Bhawani Singh PW 5 who is the Sarpanch and Mukhram PW 6 are the material witnesses. They have been examined by the prosecution but they have not supported the prosecution story. From the perusal of the statements of the witnesses on record, it is clear that the entire case is made out and the learned Sessions has committed error in finding the appellants guilty.
9. The learned Public Prosecutor has supported the judgment of the learned trial Court and argued that the prosecution evidence is reliable and the learned trial Court has correctly believed the statements and there is no substance in this appeal.
10. We have considered the arguments of both the learned Counsels and minutely perused the statements of the prosecution witnesses.
11. Kaushalya PW 1 is the wife of the deceased Kishan Lal. She has stated that her husband had gone to the field to bring grass in the early morning. When her husband did not come back, she enquired about him and she herself to went the field and at the spot where her husband Kishan Lal was lying injured. She enquired from her husband as to who had inflicted injuries to him and he told her that Gabdu, Srichand, Mst. Chidiya, Brother-in-law of Gabdu and one more person resident of Bhojawas gave this beating to him. We have gone through the cross-examination of this witness and she had denied the statement given by her during investigation which is Ex.D 2. In this statement Ex.D 2 at portion 'A' to 'B' she has stated that when she enquired from her husband, he told her that enemies had beaten him. She has denied to have given this statement. In the Police statement she has not stated that her husband has named to her the assailants. The only information given to her by her husband is that enemies had beaten. In the Court statement she had improved and gave the names of the assailants. This shows that she had made considerable improvement in the Court statement. She has also stated that when she reached at the field where her husband was lying, there was nobody else except her. This statement indicates that the other eye-witnesses produced by the prosecution are made out witnesses. Had they been present at the spot, Mst. Kaushalya PW 1 would have given their names. Then she has stated that when her husband was being brought in the cart, he did not name the appellants as the assailants. A suggestion was given in the cross-examination that when she had been to bring grass, Gabdu and his wife beat her. This statement she gave in the Police and the relevant portion is 'C to 'D' in Ex.D 2. About this statement when confronted Kaushalya denied to have given this statement. The suggestion was that on account of this enmity she was beaten by Gabdu and his wife. Thus by reading the statement of Mst. Kaushalya PW 1, we are of this opinion that she is most unreliable witness. She contradicts the other eye-witnesses Ram Kumar PW 4 and Mittal PW 8.
12. Ram Kumar PW 4 has slated that he was going to his field in the morning at 8 a.m. when he heard some voice of one person calling him by name to come to him. He could not identify the voice and he asked the name. Then he came to the field of Sriram and he saw Kishan Lal lying there. The distance where he was in the field and where Kishan Lal was lying is about 250 yards. It means that he heard the voice of Kishan Lal from this long distance. He enquired from Kishan Lal as to what had happened to him. Kishan Lal told him to go immediately to his house and informed there. He ran away to the village and told the members of Kishan Lal's family that Kishan Lal had been beaten by somebody. According to him Kishan Lal's wife met him at the house and Mittal met him at the house of Sarpanch. He also informed the Sarpanch about this fact.
13. The statement of Ramkumar PW 4 is conteradicted by PW 1 Mst. Kaushalya. She has not stated that Ram Kumar PW 4 came to her and informed that her husband has been beaten by somebody. According to Mst. Kaushalya, she herself went to the field to search her husband. In the Police statement Ex. D1 he has stated that he enquired from Kishan Lal who told that he will disclose later on as to who had beaten him. He has denied this portion in Ex. D1. But from the entire statement, it is clear that he had been at the spot and enquired from Kishan Lal as to who had beaten him but he did not give the names of the assailants. So this witness is of no help to the prosecution. He has not stated anything against the appellants. On the other hand the difference in the statements of this witness and Kaushalya PW 1 shows that Ram Kumar PW 4 is a made out witness. He had gone to the Sarpanch also but he did not tell to the Sarpanch that somebody had beaten Kishan Lal who is lying in the field of Shriram. Thus the statement of this witness is also unreliable and no conviction can be based on his testimony.
14. The third witness is Mittal PW 8, who according to the FIR is also an eye witness along with Ram Kumar PW 4. Mittal PW 8 h e stated that he was going to his field when he met Kishan Lal who was coming with the bundle of grass. Kishan Lal crossed him and just after five minutes he heard the cry "Marlo-Marlo". Hearing this cry he came back and when he was at a distance of 30 paces from Kishanlal he saw that Gabdu, Abhaysingh, Sriya and Shyam were beating Kishan Lal. Abhaysingh was having Farsa and other persons were armed with lathis. Seeing the beating he ran towards village and in front of the house of the Sarpanch he met with Patwari and Sarpanch. He told the Sarpanch that his uncle Kishan Lal has been beaten by the accused-persons. He and Sarpanch then went to Mukhram where Sarpanch told Mukh Ram that Kishan Lal has been beaten, and asked to go there and bring him. At this he (Mittal), Mukhram and other villagers took camel-cart and came to the field to Ratiram where Kishan Lal was lying. Kishan was brought to his house. He has also stated that at the house of Kishan Lal number of villagers had collected and they enquired from Kishan Lal as to who had beaten him and then Kishan Lal named the accused-persons and stated that they had beaten him. Thus he has not stated that Ramkumar PW 4 was also present at the house of Sarpanch. He has also contradicted the statement of Kaushalya PW I. He was confronted with the police statement Ex. D3 and the portions 'A to B' were read over to him and he has denied to have given this statement. He has also denied the portions 'C to D' in Ex. D3. We have perused the statement Ex. D3 and we find that Mittal has denied the entire statement given in the Police. He had invented a new story in the Court statement. He has not stated that Kaushalya PW 1 also came to the field. Kaushalya has not stated that when she reached the field her husband was lying. Mittal PW 8 and Ramkumar PW 4 were also present. So after minutely going through the Court statement and the Police statement Ex. D3, we are of this opinion that this witness Mittal is also a made out witness. He is a liar and most unreliable witness. His testimony is to be discarded completely.
15. Bhanwani Singh PW 5 is an important witness. He is Sarpanch of the village and an independent witness. He has stated that in the morning at 8 a.m. Mukh Ram, Mittal and Omprakash Patwari were sitting at the house. Ramkumar came to him and told that Kishan Lal is lying near his field so information be sent to his house. Bhawani Singh told Mukhram and Mittal to bring Kishan Lal and they brought him to his house. This witness has been declared hostile. He has denied to have given the Police statement Ex.P 5. Thus, he has not supported the prosecution story and on the other hand contradicted the statements of eye-witnesses.
16. Mukhram PW 6 is another important witness who has stated that he was with Khayali when Sarpanch Bhawani Singh came with Mittal. Sarpanch told him that Kishan Lal has been beaten but does not know as to who had beaten him. He told that Kishan Lal is lying in the field of Shriram. He and Mittal went to bring Kishan Lal and brought him to the village. In the cross-examination he has stated that Kishan Lal did not disclose the names of the persons who had beaten him. Kaushalya and Mittal also did not name the assailants. Thus this witness Mukhram has not supported the story.
17. After scrutinising is the statements of the prosecution witnesses, we are of this opinion that Kaushalya PW 1, Ramkumar PW 4 and Mittal PW 8 are the most unreliable witnesses. They are made out witnesses. Actually they were not present when this occurrence took place. They must have brought Kishan Lal from the field if they were present there. These witnesses were made to speak the names of the accused-appellants. No reliance can be placed on the evidence of such persons. The learned trial Judge has not appreciated the evidence of the prosecution correctly and he has arrived at an incorrect conclusion. We are not in agreement with the finding of the learned trial Court.
18. It was also argued that Ex,P 6 is the FIR alleged to have been lodged by Kishan Lal deceased and it bears his thumb-impression. Kishanlal was a literate man and he used to sign, so this FIR is a made-up document. In this regard the statement of Amar Singh DW 1 who is the SHO was read over to us and the documents Ex.D 5, Ex.D6 and Ex.D7 were also referred. All these documents have been proved by Amarsingh DW 1 and these documents have the signature of deceased Kishan Lal. While arguing on this point it was stated that these documents and the statement of Amarsingh DW 1 proves that deceased Kishan Lal was a literate man who used to sign and as such, the FIR Ex.P 6 which bears the thumb-impression of Kishan Lal is a made-up document. Thus this argument has substance. The learned Public Prosecutor gave no explanation or reply to this argument.
19. In view of our above discussion, we are of the opinion that the prosecution witnesses Kaushalya, Ram Kumar and Mittal are most unreliable witnesses and the learned trial Court has committed error in believing these witnesses. The judgment of the learned Sessions Judge is not correct and cannot be maintained. The prosecution has failed to prove its case against the appellants.
20. As a result, the appeal is allowed. The appellants are not found guilty of the offence under Section 302/34, IPC and their conviction and sentence are set aside. All the appellants are, therefore, acquitted. Appellants Abhay Singh and Gabdu are in jail and they be released immediately, if not required in any other case. Appellants Srichand and Mst. Chidiya are on bail. Their bail bonds are discharged and they need not surrender.