Rajasthan High Court - Jaipur
State Of Rajasthan vs Mamraj And Ors. on 13 September, 1995
Equivalent citations: 1996(1)ALT(CRI)14, 1996CRILJ1823, 1996(1)WLC104
ORDER
1. As this DB Cr. Death Reference besides DB Cr. Jail Appeal No. 201/95 "Mam Raj v. State of Rajasthan", DB Cr. Appeal No. 169/95 "Mamraj v State of Rajasthan", and DB Cr. Appeal No. 146/95 "Rameshwar v. State of Rajasthan" arise out of the judgment dated 20-2-1995, passed by the learned Additional Sessions Judge, Kotputali, in Sessions Case No. 55/93 and DB Cr. Misc. Petition No. 453/95 "Mamraj v. State of Rajasthan" has been filed during the pendency of this reference, all these matters are being disposed of together by this judgment.
2. The four respondents of this death reference namely; Mamraj and Jairam sons of Bhagwana, residents of village Naurangpura, Rameshwar son of Gheesa, resident of village Kuhara and Bharta son of Sohanlal, resident of village Khatoti were prosecuted in case FIR No. 326/93 under Sections 302, 307 and 460, I.P.C. of Police Station, Kotputali in the Court of the learned Additional Sessions Judge, Kotputali, with the prosecution story, in short, being as under:-
3. Hansraj and his elder brother Gheesa sons of Dhonkal were residing in adjoining houses in village Banka Police Station, Kotputali. Hansraj was married to Mahadi, the sister of Surja (P.W. 34) and Rameshwar (P.W. 35). Hansaraj had no issue and as such adopted and had started keeping with him Hardan (P.W. 5), the son of his brother Gheesa. Hansraj, however, felt annoyed with Hardan and refused to keep him and started keeping Prithvi (P.W. 31), the son of his brother-in-law Surja (P.W. 34) and Lali, the daughter of his brother-in-law Rameshwar(P.W. 35). Respondents Mamraj, Jairam, Rameshwar and Bharta are closely related to Gheesa inasmuch as Mamraj and Jairam are the brothers of the wife of Gheesa, Rameshwar is the father-in-law of the younger brother of Hardan and Bharta is the son of the sister of Gheesa. Hansraj had agricultural land which he wanted to give to Prithvi in preference to Hardan and on this account Gheesa and the respondents were annoyed with him and some days prior to the date of the occurrence, had threatened him with serious consequences if he did not give his agricultural land to Hardan and did not turn out Prithvi and Lali, but Hansraj had not agreed to do so.
4. On the night between 14-15th August, 1993, while Hansraj and Prithvi were sleeping on the 'charpais' outside the house of Hansraj, and Mahadi and Lali were sleeping on the 'charpais' in the Court-yard inside his house, at about 12-1.00 a.m., the four respondents came to the spot with lathis in their hands and Rameshwar gave lathi blow on the head of Prithvi but since he was sleeping with his hand over his head, the lathi had hit his hand and he got up and saw respondents Mamraj, Jairam and Bharta giving lathi blows to Hansraj. Prithvi raised alarm, whereupon, all the four respondents started giving him lathi blows which he received at his head, eye, hand and other parts of his body. On Jairam's saying that all the four had died and they all should run away from the spot, the respondents ran away from there. Ganpat, the maternal uncle of Sona (P. W. 32) had his house by the side of the house of Hansraj and Sona was sleeping outside the house of Ganpat and he got up on hearing the barking noise of the dogs and when the four respondents passed running from near the 'charpai' he lighted the torch and had seen them running towards village Naurangpura. On hearing the noise, Bhagwan (P.W. 17), Birbal (P.W. 18) and Rameshwar (P.W. 19), who were sleeping outside their houses, came running to the house of Hansraj where they found him lying dead on the 'charpai' and Prithvi lying in an injured condition and weeping at the spot. On entering the house, they found Mahadi and Lali lying dead on their 'charpais' and having injuries on their person. Hemchander (P.W. 13), Gopiram (P.W. 24), Prahlad (P.W. 16) and Mahesh Kumar (P.W, 7) were sent to ring up the Police Station about the incident and some other persons accompanied them. On receipt of telephonic information, P.W. 36-Badri Prasad Sharma, who was the SHO of Police Station, Kotputali (the IO) reached the spot along with his staff at about 5.00 a.m. and P.W. 17-Bhagwan gave him written report (Ex. P. 8). The IO made endorsement at the foot thereof and sent it to Police Station, Kotputali for registration of a case and in the Police Station formal FIR No. 326/93. was recorded at about 6.00 a.m. Prithvi though conscious but was unable to speak. He was referred to BDM Hospital, Kotputali for treatment. The IO prepared the inquest reports in respect of Hansraj, Mahadi and Lali (Ex. P. 13, Ex. P. 11 and Ex. P. 12 respectively) and sent their dead bodies for post-mortem examination. In the hospital Prithvi was examined by Dr. Krishna Gopal Lakhera (P.W. 23) at about 7.40 a.m. and the doctor found the following injuries on his person:-
"1. Lacerated wound of 3 1/2 cm x 1/2 cm x scalp tissue deep on left parietal region of head.
2. Lacerated wound of 3 cm x 14 cm x bone deep on post aspect of left parietal region of head.
3. Lacerated wound of 1 1/2 cm x 1/4 cm x skin deep on left eye-brow with swelling and blackening of left eye.
4. Lacerated wound of 1/2 cm x 1/2 cm on the bridge of nose.
5. Diffuse swelling over right forearm near the wrist joint."
5. Injury No. 4 was found to be simple in nature but for determination of the nature of injuries No. 1, 2, 3 and 5, Prithvi was referred for X-ray examination and after the X-ray report (Ex. P. 29) from Dr. Satya Narayan Kulwal, Dr. Lakhera opined that injuries No. 1, 2, 3 and 5 were grievous in nature and Prithvi was referred to SMS Hospital, Jaipur. The post-mortem examination on the dead body of Mahadi was conducted on 15-8-1993 at 2.0-0 p.m. by Dr. Krishna Gopal Lakhera(P.W. 23), who found the following external injuries on her person :-
"1. Bruise 5 x 2 cm on left temporal region.
2. Lacerated wound 2 x 1/2 cm x bone deep on dorsam of left index finger."
6. On internal examination the doctor found haematQma 4x4 cm left temporal region and opening of the skull he found blood clotted in all the three fosses and fracture on cribiform plate longitudinally and tear of durs matter along with the said fracture. He also found the blood present in subdural space. The doctor opined that the cause of death was cardio respiratory arrest due to intracronical haemorrhage and prepared post mortem report (Ex. P. 27). The post mortem examination on the dead bodies of Hansraj (at 2.00 p.m. on 15-8-1993) and Lali (at 4.00 p.m. on 15-8-1993) were conducted by Dr. Birbal Yadav (PW 22), who found the following external injuries on the person of Hansraj:-
" 1. Lacerated wound 4 x 1/2 cm x full thickness of pinna of left ear.
2. Bruise 5 x 2 cm on left masloid region beneath the injury of pinna.
7. On internal examination the doctor found haematoma 6 x 3 cm over left masloid region, Skull bones and membrances to be intact and clotted blood present in interior middle and posterior cranical fona of bone of skull in subdural space. The doctor found the following external injury on the person of Lali :-
"Lacerated wound 2 x 1 1/2 cm x bone deep on left xygomelis region which continue pisten in bruise 4 x 2 cm."
8. On internal examination the doctor found the skull bones and membrances to be intact, but found that clotted blood was present in the interior middle and posterior cronical fona of bones of skull in subdural space. The doctor opined that the cause of death of Hansraj and Lali was cardio respiratory arrest due to intracronical haemorrhage. The doctor prepared post mortem report (Ex. P. 25) in respect of Hansraj and post mortem report (Ex. P. 26) in respect of Lali. At the sport, the IO prepared the site plan (Ex. P. 34). He picked up blood stained earth and took into possession the blood stained clothes of the deceased persons and blood stained bed-sheets etc lying on the 'charpais' of the deceased persons and the injured. The statements of the witnessses found present at the spot including Sona (PW 32) were recorded by the IO. The dog-squad was summoned from Jaipur and PW-26-Ram Sahai, Head Constable accompanied by some other staff came with two dogs and under the directions of the IO the investigation was conducted with the help of the dogs on the basis of foot impressions found on the southern-eastern part of the house of Gheesa.
9. After Prithvi was discharged from the hospital, he went to his father's house in village Khiwari and the IO recorded his statement there on 29-8- 1993. The IO arrested the respondents Rameshwar, Bharta and Mamraj on 30-8-1993 and after their arrest they got recovered lathis. The IO arrested Jairam on 28-10-1993 and after his arrest he got recovered the lathi. After completing the investigation, the challan was filed in the court of the learned Judicial Magistrate, who committed the case to the Court of Sessions and the learned Additional Sessions Judge, Kotputali, vide the impugned judgment dated 20-2-1995, convicted respondent Mamraj under Sections 302 read with Section 34 IPC, 307 read with Section 34 IPC and 460 IPC and sentenced him to death under Section 302 read with Section 34 IPC, to undergo 7 years rigorous imprisonment with fine of Rs. 1000/- and in default of payment of fine to further undergo two months rigorous imprisonment under Section 307 read with Section 34 IPC and 7 years rigorous imprisonment with a fine of Rs. 1000/- and, in default of payment of fine, to further undergo 2 months rigorous imprisonment under Section 460 IPC. The remaining three respondents were also convicted under the above said sections, but each one of them was awarded sentence for life imprisonment with a fine of Rs. 2000/- and, in default of payment of fine, to further undergo four months rigorous imprisonment under Section 302 read with Section 34 IPC, but was awarded same sentences as were awarded to respondent Mamraj under Section 307 read with Section 34 IPC and under Section 460 IPC. Since the death sentence imposed by the learned trial court could not be executed without it being confirmed by this court, this reference has been sent by the learned trial court. Mamraj filed one appeal in this court through the Superintendent of Jail and it was registered as DB Cr Jail Appeal No. 201/95. He, Jairam and Bharta filed an appeal through their learned counsel and it was registered as DB Cr Appeal No. 169/95. Rameshwar filed an appeal through his learned counsel which was registered as DB Cr Appeal No. 146/95. During the pendency of this reference and all the abovesaid appeals, DB Cr Misc Petition No. 453/95, under Section 482 of the Code of Criminal Procedure (the Code) was also filed by Mamraj, Jairam and Bharta with a prayer to remand the case for further hearing of the matter on the question of sentences and also for taking into consideration other material.
10. We have heard the learned counsel for the parties and have also perused the record of the case.
11. From the record, we find that in support of their case prosecution had produced on record the ocular as well as circumstantial evidence. The ocular evidence consists of the only eye-witness of the occurrence namely Prithvi (PW 31). The circumstantial evidence relied upon by the prosecution is the four assailants having been seen running from near the spot soon after the occurrence by Sona (PW 32) and the four respondents having been seen by Gheesa son of Salla (PW 27) with lathis in their hands at the turning of Gopalpura, Delhi-Jaipur Road on 14-8-1993. The prosecution also relied on the circumstantial evidence of there being heart burning between deceased Hansraj and his elder brother Gheesa due to Hansraj having decided to give his agricultural land to Prithvi in preference to Hardan (PW 5) whom the deceased had earlier adopted and kept with him and the respondents being annoyed with the deceased on that account.
12. The learned counsel for the respondents- appellants have contended that the learned trial court erred in believing the statements of Prithvi and Sona and also in coming to the conclusion that there was any enmity between the respondents and Hansraj on one side and his other family members on the other side on account of which the respondents could have committed the murder of the three deceased persons. It has been contended that the learned trial court has relied on the statements of Prithvi and Sona without noticing the improbabilities therein and also ignoring the fact that the statement of Prithvi was admittedly recorded on 29-8-1993 and, according to Sona, although he had seen the assailants running from near the spot during night, he learnt about the occurrence only at about 7.00 a.m. on the morning of 15-8-1993 and when he went to the spot, he had found the police party present, but although the villagers were present there and were asking as to who could have committed the murders, he didnot tell either to the police or to any one else that he had seen the assailants running during the night and going towards village Naurangpura and that, according to him, his statement was recorded by the police after 4 to 5 days after the occurrence after calling him in the police station.
13. It has not been disputed before us that Prithvi (PW 31) received injuries in the occurrence and his presence at the spot would be natural in the circumstances. The only question which has been raised and which requires examination is as to whether he can be believed about having seen the assailants- appellants at the time of the occurrence. In his statement on oath Prithvi has deposed that he was sleeping when Rameshwar had given him a lathi blow which hit him on his hand which he was keeping over his head and when he got up and sat on cot he saw Mamraj, Jairam and Bharta giving lathi blows to Hansraj and on his raising alarm all the four appellants gave him 8-10 lathi blows and, thereafter, the appellants ran away from the spot considering him also to have died. In his cross-examination he deposed that he was in senses when the police came to the spot and further that the police had taken him to the hospital where he had told the doctor that he had received lathi blows on his head, eye and hand and the same evening he was taken to Jaipur by a car where he was admitted in hospital where he remained admitted for 13-14 days and after being discharged from the hospital he came to his father in his village Khiwari and after 2 or 3 days of his coming to the said village he regained his speech and earlier thereto although he could move about, take food, he could not speak. He deposed that he studied upto 6th class and could write and read Hindi and even in the hospital in Jaipur the doctor had not enquired from him as to how did he receive injuries and it was only after 13-14 days of the date of the occurrence that the police had made enquiry from him. He admitted that it was a dark night, but stated that he could see the assailants because there was light on the spot coming from the bulb at the electric pole fixed near the well of Birbal situated at a distance of 15 paces from the place of the occurrence. He also admitted that the entire land owned by Hansraj had been sold by him.
14. As noted above, Prithvi was examined in the BDM Hospital, Kotputali at about 7.40 a.m. by Dr. Krishna Gopal Lakhera (PW 23) who had found the injuries mentioned above on his person. In the cross-examination the doctor deposed that Prithvi was in a position to write, and if he was literate, he could explain the things by writing and that all questions asked from him were replied by Prithvi by giving signals. The IO-Badri Prasad Sharma, while appearing as PW-36, has stated that when he had reached the spot on the morning of the occurrence, he had found Prithvi in injured and in semi-conscious condition and unable to speak and had sent him to Kotputali hospital where he could not record his statement because he became unconscious and when he reached the Kotputali hospital in the evening, Prithvi had already been removed to Jaipur and that he had been visiting SMS Hospital, Jaipur where Prithvi was admitted, but the doctor had told him that he was unable to make a statement and a certificate in this respect was also given to him by the doctor. When asked to explain as to which doctor had told him that Prithvi had become unconscious in the hospital at Kotputali, his reply was that the doctor concerned told him so but he had not made any note in this regard in the case diary. When questioned about the dates when he visited the SMS Hospital, Jaipur, his answer was that he was not in possession of the case diary and, as such, could not give the dates and further stated that the certificate issued by the doctor of SMS Hospital, Jaipur had also not been produced by him in the court. He further stated that he recorded the statement of Prithvi on 29-8-1993 as on the earlier date he had sent a constable, whose name he did not remember, and had learnt that Prithvi had been discharged from the hospital. When asked if there was any electric pole at the well of Birbal, his reply was that he did not remember anything about it, but admitted that no such electric pole has been shown in the site plan (Ex. P. 34) prepared by him at the spot.
15. It may also be noticed that in his cross- examination Dr. Gopal Krishna Lakhera (PW 23) has admitted that all the three deceased persons (Hansraj, Mahadi and Lali) had injury at same spot at their bodies and same method and same arm was used for causing the said injury on the person of all the three deceased persons. It may also be noticed that besides an injury on the parietal region of Mahadi, there was an injury measuring 2 x 1/2 c.m. on the first finger of her left hand and there was one external injury on the body of Hansraj and one external injury on the body of Lali. If, in fact, all the four appellants had given lathi blows to Hansraj, as has been deposed by Prithvi, there ought to have been many injures on the person of Hansraj and if the appellants had given fatal injuries on the person of Mahadi and Lali with the help of lathis, there would have been many injuries on their person. It is difficult to imagine how the injury on the finger of Mahadi, who was sleeping at the relevant time, was caused by lathi unless it is taken that she was keeping her left hand over or near her head while sleeping and injury on the finger was also caused by the same blow which caused injury on the temporal region of her body. The fact that the injuries were on the same portion of the body of each of the three deceased persons and the same mode had been used by the assailants for causing the said injuries, as has been deposed by Dr. Lakhera (PW 23), it is not possible to believe that injuries could have been caused by the lathis used by the respondents.
16. As noted above, Dr. Lakhera has deposed that Prithvi was in a position to write and explain in writing if he was literate and Prithvi has admitted that he can write and read Hindi language having studied upto 6th class. The explanation of the 10 that he could not record the statement of Prithvi in Kotputali hospital because he had become unconscious is not finding support from the statement of Dr. Lakhera. No evidence in the form of record of SMS Hospital, Jaipur has been produced before the court to show that Prithvi was unable to make statement or was unable to write during the time that he remained admitted in the hospital and even the certificate stated to have been obtained by the IO from the Medical Officer of the SMS Hospital, Jaipur in this regard has also been kept back. Non- production of the record from the SMS Hospital, Jaipur in this respect leads us to draw inference adverse to the prosecution and to hold that if produced it would have not supported the case of the prosecution, but would have shown that Prithvi was in a position to talk and give a statement, during the time that he remained admitted in the hospital and the non-recording of his statement prior to 29-8- 1993 was because of the fact that the names of the assailants were not known to the police before that date.
17. There is another aspect of the matter. According to Prithvi, he had received injuries on his person with the lathis in the hands of the respondents. It is not disputed by the learned PP that the injuries on the nose bridge and eye-brow could not have been caused independently with the lathis and they appear to have been caused by the first blow which fell on the hand, which, according to Prithvi, he was keeping over his head while sleeping. If Prithvi got up on receipt of the lathi blow on his hand, which has been found to have been fractured, he would have been in pain and agony when he suddenly got up from sleep and there being only one injury on the person of Hansraj there would not have been any time for Prithvi to have seen the assailants. Moreover, the explanation coming forward in his statement that he had seen the respondents in the light coming from a bulb fitted in a electric pole on the well of Birbal, does not find support from the statement of any other witness and even the I0, when questioned about it, has stated that he did not remember anything about it, but admitted that no such electric pole has been shown in the site plan. These reasons coupled with the fact that statement of Prithvi has been recorded quite late makes his statement unreliable.
18. As noted above, the circumstantial evidence is about Sona (PW 32) having seen the respondents running towards Naurangpura with lathis in their hands and having seen them when they passed from near his cot where he was sleeping. According to Sona, he had got up on hearing the barkings of the dogs and had heard some people running and, thereupon, had lighted the torch and seen the faces of the respondents, but although the entire village pupulation had got collected at the scene of occurrence, he learnt about the occurrence only at about 7.00 a.m. when the police had already reached the spot although he was sleeping at a short distance from the spot. It is difficult to believe that if Sona had in fact seen the respondents running and on going to the spot had heard the people taking as to who could have murdered Hansraj and others, he would have kept quite for all the period and would not have told the police that he had seen the respondents running during night from near his cot and would not have talked to any one about this either on the date of the occurrence or till his statement was recorded by the police, as stated by him, after 4 to 5 days of the date of the occurrence.
19. According to the I0, he had recorded the statement of Sona on the date of the occurrence itself and in his statement he had given the names of the four respondents. The I0 was confronted with the statement of this witness recorded under Section 161 of the Code of Criminal Procedure and it was found to be bearing no date and explanation of the I0 was that he forgot to mention the date. He admittedly did not show the place, where this witness was sleeping, in the site plan. Moreover, it is not the case of the prosecution that the respondents were absconding and could not be traced earlier than 30-8- 1993 and there is thus no reason as to why the respondents were not arrested prior to that date if their names were in fact known to the police on the date of the occurrence itself. For these reasons, we feel that the statement of this witness can also not be relied upon.
20. The other circumstantial evidence is about PW-27-Gheesa having seen the four respondents at about 11.00 p.m. on 14-8-1993 at the turning of Gopalpura on Delhi-Jaipur road in Kotputali.
21. In his cross-examination, Gheesa has deposed that his nephew Rameshwar resident of village Chironi was lying admitted in the hospital in Kotputali for 10-15 days and he had gone to see him and was returning from the hospital when he saw the respondents standing at the turning of Gopalpura. The respondents, in their defence, have examined Dr. Pramod Kumar Purohit as DW-1 and this witness, on the basis of the record, has deposed that no Rameshwar resident of village Chironi was admitted in the hospital during that lime and that one Rameshwar son of Mamraj was admitted there only on 15-8-1993 with the kidney pain. The presence of Gheesa in Kotputali at the relevant time is also not believable. Even if it be taken that the respondents were seen at Gopalpura turning of Kotputali, there appears to be no reason to take this evidence against them for the simple reason that admittedly Gheesa, the brother of Hansraj, was lying admitted in the hospital and, according to the case of the prosecution itself, they are related to Gheesa and this circumstance cannot be taken against them.
22. The motive of the crime is also not clear, Gheesa, according to the case of the prosecution itself, was lying admitted in the hospital for quite number of days and if Hansraj wanted to give the land to Prithvi in preference to Hardan, who has been examined by the prosecution as PW-5, the main grievance, if any, would be to Gheesa and Hardan and it is not explained as to why the respondents would be so concerned about it specially when Bharta is the son of the sister of Hansraj and Gheesa and his relationship with both is same i.e. of nephew and Rameshwar is the father-in-law of younger brother of Hardan. The motive is also thus not satisfying.
23. For all these reasons, we are of the view that the learned trial court erred in believing the case of the prosecution and convicting the respondents by holding that the prosecution had proved its case against the respondents beyond doubt.
24. Consequently, we decline this death reference, accept the abovesaid appeals and acquit the four respondents-appellants, who are in custody, and direct that each one of them should be released forthwith unless wanted in some other case.
25. In view of our judgment declining the reference and accepting the appeals, the misc. petition filed under Section 482 of the Code has become infructuous and is dismissed as such.