Rajasthan High Court - Jaipur
Jagdish Prasad vs State And Ors on 12 April, 2012
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Criminal Appeal No.516/2003 Bherulal and Hemraj Vs. The State of Rajasthan through the Public Prosecutor
2. D.B. Criminal Revision Petition No.863/2003 Jagdish Prasad Vs. State of Rajasthan through the Public Prosecutor and Others Date of Order ::: 12th April, 2012 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mr. Justice S.S. Kothari Shri Biri Singh Sinsinwar, Senior Advocate with Shri Harendra Singh and Shri Rajesh Choudhary and Shri Dhruv Atre, for appellants Shri J.R. Bijarniya, Public Prosecutor for the State of Rajasthan Shri Sunil Tyagi, counsel for complainant #### //Reportable// By the Court (Per Justice Mohammad Rafiq):-
This judgment decides above referred to Criminal Appeal and Criminal Revision Petition. Criminal appeal has been preferred by accused-appellants, namely, Bherulal and Hemraj, against judgment dated 05.03.2003 of learned Additional Sessions Judge (Fast Track) No.1, Kota, whereby they have been convicted for offence under Section 302 IPC and sentenced to undergo life imprisonment with fine of Rs.2000/- each; in default of payment thereof, they were to further undergo imprisonment for one year. Complainant has preferred revision petition against acquittal of accused-respondent Purushottam and Kanhaiyalal vide aforesaid judgment.
Facts giving rise to criminal appeal are that a written report was submitted by one Jagdish Prasad on 21.12.1998 to Station House Officer, Police Station Railway Colony, Kota, alleging therein that his uncles, namely, Shrawanlal, Mahaveer, Jagdish, Pushpkant and Babulal were, at about 1-1 PM, standing on their agriculture field. Accused party, comprising of 10-12 males and 3-4 females came there armed with swords and 'gandasi' and they dared his uncles to leave at once stating that agriculture field belongs to them or else they would be cut into pieces. Accused Behrulal, who was armed with sword, inflicted a sword blow on head of his uncle Shrawanlal, as a result of which he fell down on the ground. Then, Behrulal caused some more blows by sword to him. Accused Hemraj inflicted 'gandasi' blows on person of Shrawanlal, while he (Shrawanlal) lay on the ground. Shrawanlal died on spot. Accused Purushottam had 'kulhari', who thereby caused injuries on person of informant Jagdish and Bherulal inflicted blows on his uncle. Deendayal also inflicted blows of stick ('lakdi') on head and other parts of his body. Kanhaiyalal had 'gandasi', and he inflicted injures from reverse side thereof. Nawal caused injuries by 'dharia' on the person of his uncle. Manju and Gulab, females members, pelted stones at his uncle. Blood was oozing out of body of his uncle, as a result of which he died. Three females, who were wives of accused, had muffled their faces with scarf, therefore, they could not be immediately identified. Hemraj caused a severe injury by use of 'gandasi' from its reverse side on leg of his uncle Mahaveer, leading to fracture of his leg and his head was also burst. Informant further alleged that while his one uncle died, another uncle fled from there to save his life. Bherulal, Hemraj, Purushottam and Kanhaiyalal were also named as accused and for two of accused, it was stated that they could not be identified. It was therefore prayed that action be taken against culprit.
Police after investigation filed challan against four accused, which included present appellants Behrulal and Hemraj and two co-accused, Purushottam and Kanhaiyalal, who have been acquitted. Learned Additional Sessions Judge framed charges against present accused-appellants and two co-accused for offence under Sections 302, 307, 325, 323 read with Section 34 of the IPC, to which they pleaded not guilty and claimed to be tried. Prosecution examined as many as 22 witnesses and got 40 documents exhibited, whereas defence did not examine any witness, though got five documents exhibited in defence. Learned trial court after completion of trial convicted and sentenced present accused-appellants as indicated above, and acquitted co-accused Purushottam and Kanhaiyalal. Hence, accused-appellants Bherulal and Hemraj have preferred appeal against their conviction and sentence and, complainant Jagdish Prasad has preferred revision against acquittal of co-accused Purushottam and Kanhaiyalal.
We have heard Shri Biri Singh Sinsinwar, learned Senior Counsel, appearing for accused-appellants, Shri J.R. Bijarniya, learned Public Prosecutor for State of Rajasthan and Shri Sunil Tyagi, learned counsel appearing on behalf of complainant-revisionist.
Shri Biri Singh, learned Senior Counsel, appearing on behalf of accused-appellants, has argued that findings recorded by learned trial court are contrary to evidence available on record inasmuch as guilt of accused-appellants has not been proved beyond reasonable doubt. Same set of evidence having been relied for acquittal of co-accused Purushottam and Kanhaiyalal, accused -appellants ought to have been also acquitted by extending them benefit of doubt. It was argued that genesis of incident has been completely withheld from court and defence has tried to shift its stand from stage to stage. In the version originally disclosed in first information report, it was alleged that complainant party first reached agriculture field and accused objected to their presence. During trial, however, evidence that has been produced by prosecution is to effect that accused first reached agriculture field and started ploughing it. Members of complainant party came there and objected to ploughing of field by accused. Learned Senior Counsel argued that disputed agriculture field was in joint possession and khatedari of both parties and therefore accused cannot be held to be aggressors. Findings about accused being aggressor as recorded by learned trial court, are perverse and erroneous. It was argued that in fact members of complainant party, were aggressors. They took law in their own hands. A revenue suit at the instance of complainant party was pending between the parties in court of Assistant Collector (ACM), Kota, with regard to same land, wherein no stay order was passed in their favour or against accused-appellants. There was thus no restriction for accused party in ploughing agriculture field and they had every right to go there.
Shri Biri Singh Sinsinwar, learned Senior Counsel, argued that conviction of accused-appellants is based entirely on unreliable evidence, which has found no corroboration from any other quarter. Learned trial court itself has partly disbelieved prosecution evidence while acquitting two co-accused. Once prosecution witnesses were found to be untrustworthy, they should have been disbelieved in toto and their testimony ought to have been discarded. It was argued that first information report was originally filed against as many as 11 accused but police filed challan against only four of them. Yet prosecution witnesses in their statements have named some of those accused against whom challan was not filed by police and version of prosecution witnesses was not believed. PW-1 Jagdish Prasad has named six persons as assailants, in that he apart from present accused-appellants, also named Kanhaiyalal, Deendayal, Nawal, Purushottam, as those who inflicted injuries on the members of complainant party. PW-2, Mahaveer Prasad, has also similarly named present accused-appellants and also Kanhaiyalal, Nawal and Deendayal as other assailants. Similarly PW-3, Babulal, apart from naming accused appellants, also named Purushottam, Kanhaiyalal, Nawal Kishore, Deendayal, Dhanni Bai and Manju Bai as assailants with specific roles. PW-6 Pushpkant has also similarly named co-accused Kanhaiyalal and Purushottam with specific roles.
Shri Biri Singh Sinsinwar, learned senior counsel submitted that complainant moved an application under Section 319 Cr.P.C. for taking cognizance against accused Dhanni, Deendayal and Nawal but that was rejected by learned trial court. However, complainant did not challenge that order any further, thus said order has attained finality. That clearly shows that witnesses on account of their close relationship with deceased were making false statements and exaggerating their version. While two co-accused, Purushottam and Kanhaiyalal, have been acquitted, neither challan was filed nor cognizance was taken against remaining co-accused. Learned counsel argued that incident actually took place at place 'A', indicated in site-plan (Exhibit P-3), whereas in first information report, it was alleged that incident took place at agriculture field, which fact has thus not been proved. All witnesses are closely related to deceased but manner in which learned trial court has relied and sifted evidence, they can be divided into two parts; first category is of those who have been held to be entirely unbelievable and another category of witnesses is of those who have been accepted to be partly believable. But most of eye witnesses are naming all other co-accused, who have been left out by police from being proceeded against. Thus, those witnesses are not speaking truth and they cannot be believed. PW-1 Jagdish Prasad, informant, has completely changed his version in FIR wherein he stated that incident took place at agriculture field and they were already available at agriculture field and accused attacked them with arms. He, in his court statement, has stated that accused were ploughing agriculture field and incident took place when they objected to it. PW-2 Mahaveer Prasad has stated that he was at his residence which is about 1 kilometers from agriculture field and in cross-examination, he has stated that land was in their joint khatedari and that there was no injunction order but a suit was pending between the parties. In cross-examination, he also stated that Hemraj inflicted a 'dharia' blow on his head from behind, as a result of which he fell down on the ground and thereafter accused Hemraj inflicted another blow on his head and leg.
PW-3 Babulal stated that when incident took place he was at field of Chhitarlal and, Shrawanlal, Mahaveer and Jagdish were with him. He alleged that Bherulal inflicted a sword blow on head of Shrawanlal and his brother Hemraj inflicted a 'dharia' blow on hands and legs of Shrawanlal. Purushottam inflicted a 'kulhari' blow on person of Shrawan. Kanhaiyalal inflicted a 'gandasi' blow on person of Shrawan, and Nawal Kishore also inflicted a 'gandasi' blow on him. Deendayal inflicted a blow with iron rod ('saria') on the person of Shrawan. Dhanni Bai inflicted a 'kulhari' blow on his person. Manju Bai inflicted a stick ('lakdi') blow on his person. This witness is highly exaggerating the version. Number of injuries found on the body of deceased, were only ten and not so many, which does not tally with his version. In fact, in his cross-examination, he has admitted that in rural area, weapons 'dharia' and 'kulhari' are known as same weapon and therefore in his statement under Section 161 Cr.P.C. (Exhibit D-1) his contention that Purushottam had inflicted a 'dharia' blow and not 'kulhari' blow, which was now stated by him in court, might have been the result of that confusion but both are correct. Learned Senior Counsel argued that this witness in his cross-examination has further admitted that incident took place on government land, but he has given a totally false version because statement under Section 161 Cr.P.C. (Exhibit D-1) was recorded on 23.01.1999 whereas incident took place on 21.12.1998 i.e. after more than one month.
Shri Biri Singh Sinsinwar, learned Senior Counsel, appearing on behalf of appellants, referring to statement of PW-7 Dr. Ashok Mundra and postmortem report Exhibit P-18, argued that therein, it was opined by Dr. Ashok Mundra that death took place due to coma on account of ante-mortem head injury, which was sufficient to cause death. Doctor thus in postmortem report referred to 'head injury' and not 'head injuries', thus it was singular injury i.e. injury no.1, which was responsible for death of Shrawanlal. This has been succinctly clarified by PW-7, Dr. Ashok Mundra, in his statement that as a result of injury no.1 parietal bone was cut and subdural haematoma was present inside membrane of brain below injury no.1. There was contusion in size of 3x3 cm on right parietal bone. Brain had swelling and there was collection of blood. Learned counsel therefore argued that this single injury was responsible for death of deceased Shrawanlal and this injury, as per first version given in FIR, was assigned to accused-appellant Bherulal. PW-1 Jagdish Prasad, informant, PW-2 Mahaveer and PW-3 Babulal, in their statements, have also assigned this injury to accused Bherulal.
In this connection, Shri Biri Singh Sinsinwawr, learned Senior Counsel referred to statement of PW-2, Mahaveer Prasad, who merely assigned head injury to accused-appellant Hemraj and not any specific injury on person of deceased Shrawanlal. Learned counsel also referred to statement of PW-3 Babulal, who has though assigned head injury on person of deceased Shrawanlal to co-accused Bherulal, stating that Hemraj caused injuries by use of 'dharia' on hands and legs of deceased Shrawanlal but he has also made similar allegation against co-accused Purushottam, Kanhaiyalal, Nawal Kishore, Deendayal, Dhanni Bai and Manju Bai, two of whom have been acquitted by learned trial court and challan was not filed against remaining four. Statement of this witness cannot be therefore believed because he is making exaggeration and false implication and his version is not substantially corroborated by medical evidence. Learned counsel referred to statement of PW-15 Gulab Singh and submitted that this witness in cross-examination stated that both parties are closely related to each other and incident took place suddenly. It was argued that PW-1 Jagdish Prasad and PW-2 Mahaveer Prasad have both stated that initially female accused approached them when they were standing near canal on government land and physically assaulted them, which means that complainant party had initially started quarrel with female members of accused-party and thus male members being provoked by this, retaliated in defence. Learned senior counsel argued that recovery made vide Exhibit P-30 is not of a sword but an object which looks like sword. Evidence of these witnesses showed that it was having rot and there were no blood stains on it. In FSL report (Exhibit P-35A), blood was found only on the own cloth of deceased and on no other object. As per another FSL report, Exhibit P-36, none of weapons, namely, 'dharia', 'gandasi' and 'kulhari' were found containing any blood stains. Learned counsel submitted that neither of weapons of offence were produced before court nor were numbered as articles nor were they even shown to medical officer during his court statement. This cannot be used against the accused. In support of this argument, learned counsel relied on judgment of the Supreme Court in Ram Lal Vs. Delhi Administration AIR 1972 SC 226.
Shri Biri Singh Sinsinwar, learned senior counsel, referred to statement of PW-21 Nashimullah Khan, In-charge of 'maalkhana', who stated that he cannot say with certainty whether or not sword was received back from FSL. Learned counsel also referred to recovery memo Exhibit P-20, with regard to recovery of 'dharia' at instance of accused appellant Hemraj and argued that allegation against him in first information report is of use of 'gandasi', therefore, fact about recovery of 'dharia' cannot be used against them. This weapon too was having rot. It was alleged that recovery of 'dharia' was made by digging the earth, yet it did not contain sand on it. Learned counsel argued that neither accused appellant Bherulal in his information given under Section 27 of the Evidence Act (Exhibit P-35) nor accused-appellant Hemraj in his memo of information under Section 27 of the Evidence Act, (Exhibit P-26) stated that they could get sword and 'dharia' respectively recovered, which weapons they used in commission of crime. All what they stated is that they can get such weapons recovered. Unless that statement was made, factum about recovery of weapons in abstract cannot be used against them. Learned counsel in this connection relied on judgments of the Supreme Court in (1976) 1 SCC 828, AIR 1962 SC 11162 and (2004) 10 SCC 657 Anter Singh Vs. State of Rajasthan.
Shri Biri Singh Sinsinwar, learned senior counsel, further argued that trial court in present case has been unduly influenced by evidence recorded in cross-case against complainant party lodged by accused-party herein, which has vitiated trial against accused-appellants. Learned counsel has relied on judgment of the Supreme Court in Buta Singh Vs. State of Punjab (1991) 2 SCC 612, wherein it was held that when two versions are before the court, the version which is supported by objective evidence cannot be brushed aside lightly unless it has been properly explained. Where defence version surfaces as a more probable one in the facts and circumstances of case, appellant must be held entitled to benefit of doubt.
Allegation against accused Bherulal in FIR is not of causing injury on head by use of sword but prosecution witnesses in their statements before the court stated against him that he caused injury by sword on person of Shrawanlal, and therefore, he should be held entitled to benefit of doubt. So far as accused-appellant Hemraj is concerned, he has not been assigned this injury but a general allegation has been made against him in first information report that he too caused injury after Shrawanlal fell down. Thus allegation against him is similar to that against other co-accused, who have either been acquitted or against whom charge-sheet was not filed, therefore, accused-appellant Hemraj should also be acquitted by extending them benefit of doubt.
Shri Biri Singh Sinsinwar, learned Senior Counsel for appellants, argued that learned trial court has committed an error of law in convicting both accused appellants for offence under Section 302 IPC simplicitor for murder of one person. This is also a serious illegality. At most, therefore, death being result of single injury, this can be said to be a case of culpable homicide not amounting to murder falling within purview of Section 304 Part I of the IPC, and sentence of accused-appellants be reduced to the period already undergone by them, which, in the case of both appellants, is more than nine years.
Shri J.R. Bijarniya, learned Public Prosecutor, and Shri Sunil Tyagi, learned counsel for complainant have opposed appeal and argued that there is clinching evidence against accused-appellant Bherulal and Hemraj to sustain their conviction. PW-1 Jagdish Prasad, PW-2 Mahaveer Prasad and PW-3 Babulal are consistent in attributing injuries on person of deceased. Learned counsel denied suggestion that PW-1 Jagdish Prasad, in written report, did not assign head injury to accused appellant Bherulal. He has categorically stated that Bherulal immediately on arriving at the scene of occurrence, hit his uncle Shrawanlal as a result of which he fell down on the ground and then Bherulal started causing more injuries by sword. Co-accused Hemraj also caused injuries on his person by use of 'gandasi' on different parts of his body. Learned counsel argued that PW-1 Jagdish Prasad, in his court statement, has repeated same version by stating that Bherulal inflicted a blow of sword on head of Shrawanlal. PW-2 Mahaveer Prasad has categorically stated that accused Bherulal inflicted a blow of sword on head and legs of Shrawanlal. Hemraj inflicted a blow of 'dharia' on head and stomach of Shrawanlal. PW-3 Babulal has also categorically stated that Bherulal inflicted a sword blow on head of Shrawanlal and his brother Hemraj inflicted a 'dharia' blow on hands and legs of deceased Shrawanlal. These witnesses may have made some allegations against some other accused but even if police did not file challan against them or learned trial court did not take any cognizance against them, that was because of their satisfaction that allegations against them were not prima facie proved and therefore not worth sending trial. That however does not disprove allegations against present accused-appellants, whose case has been segregated by learned trial court and their guilt has been found to have been proved beyond reasonable doubt. Merely because witnesses are related to deceased, their testimony cannot entirely be discarded. In this connection, learned counsel has relied on judgment of the Supreme Court in Barati v. State of U.P. - AIR 1974 SC 839.
It was further argued that first information report is not a substantive piece of evidence. It is only an information to police to set the law into motion and therefore for minor variations in statements of prosecution witnesses from version in FIR, entire prosecution case cannot be thrown out. Prosecution witness cannot be expected to state with graphic accuracy the manner in which incident took place. If statement substantially proves charge and there is otherwise sufficient corroboration for that statement, accused can be safely convicted. Allegation of false or over implication was denied and it was argued that acquittal of two accused and non-filing of challan against other four, does not afford any basis to say that present two accused-appellants are not guilty. They have rightly been convicted by learned trial court. It was argued that PW-1 Jagdish Prasad and PW-2 Mahaveer Prasad are both injured witnesses and their presence cannot be doubted. Recovery was made two months after incident. Accused Hemraj, in his information under Section 27 of the Evidence Act, has stated that he had concealed 'dharia' after washing same with water and therefore there was hardly any possibility of blood stains. Charge-sheet against members of complainant party was filed under Section 323 IPC in which they were acquitted. It was denied that any influence was taken from evidence of cross-case. All witnesses were separately examined in two different trial proceedings. Incident was started by accused party when appellants were standing near water canal adjoining field and therefrom asked complainant party not to plough agriculture field. It was thereupon that accused first sent female members of their family to engage in quarrel with complainant and then followed them to subject complainant party with severe beating. It was argued that deceased Shrawanlal sustained ten injuries out of which nine were by sharp edged weapons, being incised wounds. Mahaveer sustained eight injuries, out of which four were fractures. According to PW-7 Dr. Ashok Mundra, injured Jagdish sustained three injuries, one of which is incised wound on his parietal bone. Learned counsel argued that evidence has clearly proved that not only Bherulal but Hemraj also inflicted injuries on person of deceased and also on person of other injured. They thus shared common intention with each other, which is evident from use of criminal force by them in subjecting deceased and other injured to repeated injuries so much so that PW-2 Mahaveer received eight injuries, four of which were fractures and PW-1 Jagdish received three injuries, one of which was on left parietal bone. Their case cannot be segregated. They have been rightly held guilty of committing offence of culpable homicide amounting to murder. Learned counsel further argued that mere fact that they were both convicted for offence under Section 302 simplicitor, does not cause any prejudice to them. It is therefore prayed that appeal be dismissed.
We have given our thoughtful consideration to rival submissions and perused material on record.
Entire prosecution case hinges on testimony of three eye witnesses, namely, PW-1 Jagdish Prasad, PW-2 Mahaveer Prasad and PW-3 Babu Lal and recovery of weapons at instance of accused-appellants. These two factors have weighed with learned trial court in recording finding of conviction against them. What has to be therefore seen is whether learned trial court has erred in convicting accused-appellants, which, in turn, would lead to examination of evidence from the standpoint whether allegations against present accused appellants have been proved beyond reasonable doubt. Before however we proceed to undertake that survey, we must observe that mere fact that those witnesses happen to be closely related to deceased, would not be a reason to entirely discard their testimony, although it is true that court has to minutely scrutinize their statements on the principle 'falsus in uno falsus in omnibus', which means that that part of threir statements has to be discarded, which does not find any corroboration. Keeping this guiding principle in mind, we have to analyze statements of eye witnesses.
According to first version given in first information report, accused-appellant Bherulal was not attributed injury on person of Shrawanlal by use of sword. First information report further stated that as a result of said injury, he fell down on the ground and Bherulal then again inflicted more injuries by sword on his person followed by Hemraj, who inflected injuries by 'gandasi' on his head and other parts of body. These two accused thus from inception have been shown playing greater role as compared to other accused against whom sundry allegation of inflicting injuries on person of Shrawanlal is made in later part of first information report and they are Purushottam, who allegedly inflicted injury by 'kulhari', Deendayal by 'lakdi' and Kanhaiyalal by 'gandasi', Nawal by 'dharia', Manju and Gulab by pelting stones. In first information report, complainant has thus named as many as 11 accused and this precisely was number of injuries received by deceased Shrawanlal. Besides, in first information report, informant Jagdish Prasad stated that complainant party had already reached disputed agriculture field before arrival of accused but in court statement, he has stated that accused had first reached agriculture field and started cultivating the same. But according to site plan Exhibit P-3, location of incident is near canal adjoining disputed agriculture field, which is a government land.
Having noticed so, we now proceed to examine statements of prosecution witnesses. PW-1 Jagdish Prasad, in his statement before court, has substantially reiterated same allegation, which he made in first information report about actual role played by accused-appellants. He has stated that accused-appellant Bherulal was armed with sword and Hemraj had a 'gandasi'. Bherulal inflicted a blow of sword on head of Shrawanlal and also on hands and legs of injured Mahendra. Then all started beating deceased Shrawanlal and this witness Jagdish Prasad, by use of 'dharia', 'gandasi', 'kulhari' etc. This witness also named Kanhaiyalal as an accused with 'gandasi', Deendayal with 'lakdi', Nawal with 'dharia', Purushottam with 'kulhari'. He has been subjected to searching cross-examination and has remained unshaken as far as role assigned to accused-appellants of causing injuries on person of deceased Shrawanlal is concerned. He has also stated that disputed land was in joint khatedari of both parties and partition suit was pending thereabout.
Coming now to statement of PW-2 Mahaveer Prasad, we find that this witness has also reiterated same allegation as made by PW-1 Jagdish Prasad that Bherulal inflicted a blow of sword on head of deceased Shrawanlal followed by another sword blow on his leg. Kanhaiyalal inflicted a blow by use of 'gandasi' on Shrawanlal and Hemraj inflicted a 'dharia' blow on head and stomach of deceased Shrawanlal. He further alleged that Hemraj inflicted a blow by 'dharia' on this witness. Thereafter when he fell down on the ground, Hemraj inflicted another blow. He too, in cross-examination, has stated that agriculture land was cause of dispute between parties with regard to which a partition suit was pending.
PW-3 Babulal has also similarly stated that Bherulal inflicted a blow of sword on head of Shrawanlal, followed by Hemraj, who inflicted a blow of 'dharia' on legs of deceased Shrawanlal. Purushottam then inflicted a blow by 'kulhari' on deceased Shrawanlal. Accused Kanhaiyalal and Nawal Kishore also similarly inflicted 'gandasi' blows and Deendayal inflicted a blow by 'saria' on his person and Dhanni inflicted a 'kulhari' blow and Manju inflicted a 'lathi' blow. In this latter part of statement he has assigned specific role to various other accused, which neither investigating agency accepted nor learned trial court believed while rejecting application filed by complainant under Section 319 Cr.P.C. This is because there was no corroboration from medical evidence about alleged injuries on person of deceased inflicted by co-accused Purushottam, Kanhaiyalal, Nawal Kishore, Deendayal, Dhanni and Manju.
The Supreme court in Ganesh Vs. State of Karnataka (2008) 17 SCC 152, held that it cannot be said as a rule of universal application that when a portion of prosecution evidence is discarded as unworthy of credence, there cannot be any conviction. It is always open to the court to differentiate between an accused, who has been convicted, and those, who have been acquitted. The maxim 'falsus in uno, falsus in omnibus', is merely a rule of caution. An attempt has to be made to separate the grain from the chaff, truth from falsehood. When prosecution is able to establish its case by acceptable evidence, though in part, accused can be convicted even if co-accused have been acquitted on the ground that evidence led was not sufficient to fasten guilt on them. But where position is such that evidence is totally unreliable, and it will be impossible to separate the truth from falsehood to an extent that they are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by prosecution completely from the context and background against which they are made, conviction cannot be recorded.
Applying aforesaid dictum, we find that main role has been assigned to accused-appellant Bherulal of causing injuries by sword and to accused-appellant Hemraj of causing injuries by use of 'gandasi' as per first information report registered by PW-1 Jagdish Prasad but, as per statements of PW-2 Mahaveer Prasad and PW-3 Babulal, he caused injuries by use of 'dharia'. There is thus a minor discrepancy about weapon assigned to accused-appellant Hemraj, but that is not very significant considering that ultimately recovery of 'dharia' has been made at instance of accused-appellant Hemraj as per memo of information under Section 27 of the Evidence Act, Exhibit P-26, and recovery vide Exhibit P-20. Much emphasis has been laid by learned Senior Counsel appearing for appellants on argument that same set of evidence has been disbelieved by police in not filing challan against remaining four co-accused, namely, Nawal Kishore, Deendayal, Dhanni Bai and Manju Bai, and thereafter court rejected application filed by complainant under Section 319 Cr.P.C. against accused Dhanni, Deendayal and Nawal Kishore and again while acquitting co-accused Purushottam and Kanhaiyalal. Evidence adduced by aforesaid witnesses has thus been rendered untrustworthy and appellants ought to be therefore extended benefit of doubt because their guilt cannot be held to be proved beyond reasonable doubt. We are not prepared to countenance this argument because mere fact that two co-accused have been acquitted and other co-accused named by prosecution witnesses have not been proceeded against by investigating agency or by trial court, does not per-se entitle accused-appellants also to acquittal. It is duty of court in such cases to separate grain from chaff, and truth from falsehood. If after sieving untruth or unacceptable portion of evidence, residue is sufficient to prove guilt of some accused, they can be convicted on evidence disbelieved vis-a-vis other accused because other accused may have been acquitted or not proceeded against because despite certain overt-act attributed to them, no corroboration about their alleged role was found and therefore same treatment can not be meted out to accused-appellants whose complicity and specific role in commission of offence is firmly established by evidence. We may in this connection refer to version in first information report, which can be divided into two parts, one part relating to allegation against accused-appellants Bherulal and Hemraj, and second part relating to allegation against rest of accused, namely, Purushottam, Kanhaiyalal, Nawal Kishore, Manju and Gulab. Except Purushottam, other accused have been assigned role of inflicting injuries on person of deceased Shrawanlal by use of various weapons but it has not been stated as to on which part of body of deceased they caused such injuries. PW-1 Jagdish Prasad, in his statement, after making initial allegation against Bherulal of causing a blow on head of deceased Shrawanlal, has alleged that Bherulal inflicted a sword blow on hand and legs of injured Mahaveer and then all other accused inflicted injuries on person of deceased Shrawanlal by use of weapons such as 'dharia', 'gandasi' and 'kulhari'. But then, PW-2 Mahaveer after making allegation of causing severe blow by sword on head and legs of deceased Shrawanlal against accused-appellant Bherulal, has stated that Kanhaiyalal inflicted a 'gandasi' blow and assigned specific overt act to accused-appellant Hemraj that he inflicted a blow by 'dharia' on head and stomach of deceased Shrawanlal, and has further alleged that Kanhaiyalal and Nawal also inflicted blows by 'gandasi' and Deendayal inflicted a blow by 'lakdi' on person of deceased Shrawanlal but with regard to these three accused, it has not been stated as to on which part of body of deceased, such injuries were caused by them. Moreover, those injuries have not been corroborated by medical evidence or otherwise from any other evidence. PW-3 Babulal has also similarly named accused-appellant Bherulal as one, who caused first injury on head of deceased Shrawanlal by use of sword and accused-appellant Hemraj on allegation of causing injuries on head and legs of deceased Shrawanlal by use of 'dharia'. It is thereafter that PW-3 Babulal has stated that Purushottam inflicted a 'kulhari' blow on person of deceased Shrawanlal. Kanhaiyalal also inflicted a 'gandasi' blow on person of deceased Shrawanlal and Nawal Kishore inflicted a 'gandasi' blow on person of Shrawanlal. Deendayal inflicted a blow by 'saria' and Dhanni Bai inflicted a 'kulhari' and Manju Bai inflicted a blow by 'lakdi'. It is this latter part of evidence in statement of all witnesses, which amounted to exaggeration, having not found any corroboration from medical evidence or otherwise, which has to be subjected to great circumspection and scrutiny. This exercise has been undertaken by learned trial court to cull out truth from their statements and that truth as to role actually played in murdering deceased Shrawanlal, pointed to present two accused-appellants and was not convincingly acceptable as against remaining accused persons.
Contention that recovery of sword vide Exhibit P-30 at instance of accused-appellant Bherulal and recovery of 'dharia' vide Exhibit P-20 at instance of accused-appellant Hemraj, could not be used against them because such recovery was based on a defective information procured under Section 27 of the Evidence Act, has to be rejected for reasons to be stated herein. Reference in this connection has been made to memo of information given by accused Bherulal in Exhibit P-35 and accused-appellant Hemraj in Exhibit P-26. It is argued that Investigating Officer in those memos has simply noted information that accused told him that they can get sword and 'dharia' respectively, recovered without recording further information that those weapons were used by accused in commission of alleged offence. Learned Senior Counsel, in support of his argumnts, cited judgmnet of Mohmed Inayatullah v. State of Maharashtra (1976) 1 SCC 828.
In our considered view, non recording of that part of information to the effect that accused used weapon in commission of offence or that accused used said weapons for committing murder of deceased, could not even otherwise possibly be used against accused because recording of information to that extent would be inadmissible in evidence being hit by Section 25 of the Evidence Act. This is precisely the ratio of cited judgment of the Supreme Court in Mohmed Inayatullah, supra. In Para 11 and 12 of the report of that judgment, it was held that expression "fact discovered" includes not only physical object produced, but also place from which it is produced and knowledge of accused as to this. In fact, in Mohmed Inayatullah, supra, first part of memo of information prpeared by police under Section 27 of the Evidence Act, which stated that "I will tell the place of deposit of the three chemical drums" was held to be the immediate and direct cause of the fact discovered and therefore admissible under Section 27 of the Act and second part of the statement given by the accused "which I took out from the Haji Bunder on first August" was held to be not distinct and proximate cause of discovery and was held liable to be ruled out of evidence altogether being inadmissible in evidence.
In another cited case of Anter Singh v. State of Rajasthan (2004) 10 SCC 656, also same view has been reiterated by the Supreme Court. Although in that case, Investigating Officer in memo of information did not specifically record information at the instance of accused that pistol recovered was the one which was used for commission of offence and Investigating Officer when appeared as a witness (PW-16), did not indicate that gun to which reference was allegedly made was weapon of assault. What therefore was held by the Supreme Court was that Investigating Officer was required to show the stage when he is making a statement in the court. In that case, question that was before the Supreme Court was "whether evidence relating to recovery is accpetable, did not support the recovery and made departure from the statements made during investigation." The Supreme Court relied on its earlier judgment in Modan Singh v. State of Rajsathan (1978 (4) SCC 435), in which it was observed that where evidence of Investigating Officer, who recovered material objects is convincing, evidence as to recovery need not be rejected on the ground that seizure witnesses did not support prosecution version. Similar view was taken in Mohd. Aslam v. State of Maharashtra 2001 (9) SCC 362, to which also reference was made. Since in Anter Singh, supra, witnesses of recovery had turned hostile, question was whether still recovery could be accepted. It was in that context that the Supreme Court observed that when even Investigating Officer did not indicate that the gun to which reference was made, was the weapon of assault, this would be a circumstnaces affecting credibility of prosecution version. In present case, however, there is no such position. Recovery of object, which looked like sword, was made at instance of accused-appellant Bherulal vide Exhibit P-30. Though PW-17 Lal Chand one of wintesses to recovery of sword has turned hostile but another witness PW-18 Govind Sing has fully proved recovery of sword. PW-21 Nasimullah Khan, Incharge of 'maalkhala', has also supported recovery of swrod. As regard recovery of 'dharia', it may be noted that PW-12 Shankar Lal, witness of recovery thereto, has supported such recovery, though another witness of recovery of 'dharia', PW-10 Ramlal, has also turned hostile. PW-15 Gulab Singh, yet another witness, has also proved Exhibit P-26, memo containing information of recovery given by accused Hemraj.
In view of these facts, if Investigating Officer has himself taken precausion of not mentioning inculpatory part of information given by accused, which would be inadmissible in evidence, being hit by Section 25 of the Evidence Act, such an omission would be inconsequential and would not be fatal to prosecution case, because recovery is otherwise proved.
We are unable to countenance the contention that learned trial court has taken into consideration evidence recorded in cross-case and therefore trial in present case was vitiated. We have carefully scanned entire judgment and found that learned trial court has discussed in detail evidence of witnesses recorded during trial of present case. Even if what is discussed by trial court in Para 15 and 16 of impugned judgment is ignored, judgment can yet stand independently because those paras are not integral part of judgment. Besides, PW-21 Nashimullah Khan, In-charge of 'maalkhana' has not stated that articles were not received back from FSL but what he stated in cross-examination was that he could not say so with certainty because he had stayed in that office for three months only and was already transferred elsewhere. This cannot therefore be deduced therefrom that articles were not received back from FSL. Once recovery of weapons has been proved and it has also been proved that they were sent to FSL for examination and FSL reports are available on record, wherein categorical reference to those weapons has been made, mere fact that they were not shown to medical officer PW-7 Dr. Ashok Mundra while recording his statement, does not cause any prejudice to accused particularly when medical officer himself has stated that even if weapons were to be produced before him, he would not be able to say as to which injury has been caused by which weapon.
Argument that appellants, having been punished for offence under Section 302 read with Section 34 of IPC, could not have been charged for offence under Section 302 simplicitor, would not make any difference because that conviction can be altered as we are inclined to alter conviction of appellants from Section 302 simplicitor to one under Section 302 read with Section 34 IPC.
In view of what has been discussed above, we are not persuaded to uphold the argument that charges against accused-appellants have not been proved beyond reasonable doubt, therefore, benefit of doubt should be extended to them. What degree of probability would amount to proof beyond reasonable doubt would be peculiar to each case. In order to hold that guilt of accused has not been proved beyond reasonable doubt, the doubt has to be reasonable. Such doubt must be actual and substantial and not vague, fenciful and imaginary. Doubt should be free from a zest for abstract speculation. If a reasonable person of ordinary prudence accepts degree of probability of evidence on record reasonably proving guilt of the accused, failure to record conviction would result in miscarriage of justice.
We may in this context refer to following observations made by their Lordships of the Supreme Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793:-
6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are. always good regardless of justice to the victim and .,the community,' demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author(1) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say', with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the ,guilty no less than from the conviction of the innocent......" In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents. We have adopted these cautious in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago.
In State of U.P. v. Krishna Gopal (1988) 4 SCC 302, it was held by the Supreme Court that though standard of proof beyond reasonable doubt is higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exericse particular to each case. Following useful observations were made by their Lordships in Para 24 to 26 of Judgment:-
"24. It is trite that where the eye-witnesses' account is found credible and trustworthy, medical-opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the orality of the trial-process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical-evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amount to 'proof' is an exercise particular to each case. Referring to the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See: "The Mathematics of Proof-II": Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342).
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it is must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused-person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense. It must grow out of the evidence in the case.
26. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common-sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused-persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.
The Supreme Court in Gangadhar Behera and Others v. State of Orissa (2002) 8 SCC 381, relied on its earlier judgment in Gurbachan Singh v. Satpa Singh and Others (1990) 1 SCC 445, wherein their Lordships held that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law.
The Supreme Court in State of U.P. v. Ashok Kumar Srivastava (1992 (2) SCC 86, held that prosecution is not required to meet any and every hypothesis put forward by accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of evidence in the case. One wonders whether in meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape.
The Supreme Court in Inder Singh and Another Vs. State of Delhi Adminisration AIR 1978 SC 1091, held that proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take place of judicial evaluation. The Supreme Court further held that "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
Considering that appellants were charged for offence under Section 302 read with Section 34 IPC, they could not be convicted for offence under Section 302 IPC simplicitor. While therefore upholding their conviction, we direct that appellants shall rather now be convicted for offence under Section 302 read with Section 34 IPC and, sentence awarded to them by learned trial court is however maintained.
In view of above discussion, we do not find any infirmity in impugned judgment of learned trial court except afore-stated. The appeal, being devoid of any merit, is, therefore, dismissed, however, with aforesaid alteration in regard to their conviction.
In the light of the view that we have taken of the matter, we are not inclined to interfere with the acquittal of co-accused. The revision petition is therefore also dismissed.
(S.S. Kothari) J. (Mohammad Rafiq) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW