Rajasthan High Court - Jodhpur
Sonu And Ors vs State on 1 June, 2019
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
D.B. Criminal Appeal No. 688/2011
1. Sonu son of Prem Das, by caste Valmiki, resident of nearby
Beriwalla Nalka, Kumahar Mohalla, Sri Ganganagar.
2. Sonu son of Mamchand, by caste Valmiki, resident of Ward
No.40, Bapu Nagar, Sri Ganganagar.
3. Raju @ Khoti son of Mamchand, by caste Valmiki, resident of
Ward No.40, Bapu Nagar, Sri Ganganagar.
4. Veeru son of Lalchand, by caste Valmiki, resident of nearby
Beriwalla Nalka, Kumahar Mohalla, Sri Ganganagar.
----Appellants
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. T.C. Sharma.
For Respondent(s) : Mr. Anil Joshi, PP.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
JUDGMENT
Date of Judgment: 01/06/2019
Judgment reserved on: 15/04/2019
(BY THE COURT: PER HON'BLE MEHTA, J.)
The appellants herein have been convicted and sentenced as below vide judgment dated 10.05.2011 passed by the learned Additional Sessions Judge, No.1, Sri Ganganagar in Sessions Case No.48/2007:
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(2 of 13) [CRLA-688/2011] Sonu S/o Mamchand Offences Sentences Fine Fine Default Under Section sentences 302 IPC Life Imprisonment Rs.5,000/ 3 Months' R.I.
Sonu S/o Prem Das, Raju @ Khoti S/o Mamchand and Veeru S/o Lalchand Offences Sentences Fine Fine Default Under Section sentences 302/34 IPC Life Imprisonment Rs.5,000/ 3 Months' R.I. Being aggrieved of their conviction and sentence, the accused appellants have preferred the instant appeal under Section 374(2) Cr.P.C.
Brief facts relevant and essential for disposal of the appeal are noted herein below:
One Premdas (PW-1) lodged a written report (Ex.P/1) to the SHO, Police Station Jawahar Nagar, District Sri Ganganagar on 17.10.2007 alleging inter alia that on the same evening, his brother Bhagwandas had gone out of the house for some work. He reached near the shop of Raju Naai which is located just ahead of the cross roads where, Sonu son of Mamchand, Raju @ Khoti son of Mamchand and Sonu son of Premdas Valmiki pursued and stopped him. Sonu son of Mamchand was having a knife with him, Sonu son of Premdas was having a sword and Raju @ Khoti was armed with an axe. The informant was allegedly walking a little behind his brother. In his view, Sonu son of Premdas and Sonu son of Mamchand inflicted sword and knife blows respectively on the chest of Bhagwandas whereas Raju @ Khoti inflicted an axe (Downloaded on 26/06/2019 at 11:05:24 PM) (3 of 13) [CRLA-688/2011] blow on his head. On receiving the injuries, Bhagwandas fell on the ground, profusely bleeding. The complainant lifted Bhagwandas with the aid of Ashok Kumar and boarded him on to a tempo so that he could be taken to the hospital. However, his brother expired on the way. The complainant alleged that the three assailants, inflicted indiscriminate blows to his brother by sharp weapons resulting into his instantaneous death. On the basis of this report, an FIR No.379/2007 was registered against the accused persons for the offence under Section 302/34 of the IPC. The investigation was undertaken by Bhomaram, SHO, Police Station Jawahar Nagar who initially recorded the statements of Premdas and Ashok Kumar. Thereafter, the site was inspected and the site inspection plan (Ex.P/3) was prepared on 18.10.2007 with the aid and assistance of the first informant. Blood stained and control soil samples were collected from the place of occurrence.
Inquest proceedings were conducted at the hospital. The dead body of Bhagwandas was subjected to postmortem by the doctors at the Government Hospital, Sri Ganganagar. The clothes worn by the deceased were taken into possession. The dead body was handed over to the relatives for cremation. The accused Sonu son of Premdas, Sonu son of Mamchand, Raju @ Khoti son of Mamchand and Veeru son of Lalchand were arrested on 18.10.2007 vide arrest memos Ex.P/30, Ex.P/31, Ex.P/32 and Ex.P/33 respectively. The accused allegedly gave informations to the I.O. under Section 27 of the Evidence Act regarding their having concealed the blood stained weapons used for committing the offence and their blood stained clothes in the following order: (Downloaded on 26/06/2019 at 11:05:24 PM)
(4 of 13) [CRLA-688/2011] Ex.P/34- Information provided by Sonu son of Premdas regarding the concealment of sword, Ex.P/35- Information provided by Sonu son of Mamchand regarding the concealment of an iron chhura, Ex.P/36- Information provided by Sonu son of Mamchand regarding the concealment of blood stained pants, Ex.P/37- Information provided by Veeru regarding the concealment of handle of wooden chair, Ex.P/38- Information provided by Veeru son of Lalchand regarding the concealment of the shirt worn by him at the time of the incident, Ex.P/39- Information provided by Raju @ Khoti regarding the concealment of an axe in his house.
In furtherance of these informations, the I.O. claims to have effected recoveries in the following order:
Ex.P/4- Seizure memo of blood stained sword recovered at the instance of the accused Sonu son of Premdas, Ex.P/6- Seizure memo of a blood stained iron knife recovered at the instance of the accused Sonu son of Mamchand, Ex.P/12- Seizure memo of the blood stained pant recovered at the instance of the accused Sonu son of Mamchand, Ex.P/8- Seizure memo of a blood stained axe recovered at the instance of Raju @ Khoti, Ex.P/10- Seizure Memo of the wooden chair handle recovered at the instance of the accused Veeru.
Ex.P/14- Seizure Memo of shirt recovered at the instance of accused Veeru.
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(5 of 13) [CRLA-688/2011] All these recoveries were effected on 19.10.2017. The I.O. stated that the seized articles were deposited with the Maalkhana Incharge of the Police Station and finally, they were forwarded to the FSL for serological and chemical analysis from where the FSL report (Ex.P/42) was received as per which, the blood stained soil, the shirt and Baniyan of the deceased, the sword, the Chhura, the wooden chair handle and the axe recovered from the accused tested positive for the presence of AB+ Group Blood. After concluding investigation, the investigating officer, filed a charge- sheet against the accused for the offence under Section 302/34 IPC.
Since the offence was Sessions triable, the case was committed and transferred to the Court of the Additional Sessions Judge, No.1, Sri Ganganagar for trial. The learned Trial Judge, framed charge against the accused for the offences under Sections 302 and 302/34 IPC who pleaded not guilty and claimed trial. The prosecution examined as many as 7 witnesses and exhibited 43 documents in support of its case. The accused, when questioned under Section 313 Cr.P.C. and upon being confronted with the circumstances appearing against them in the prosecution evidence, controverted the same and claimed to have been falsely implicated in the case for oblique motive. Three documents were exhibited but no oral evidence was led in defence.
At the conclusion of the trial, the learned Trial Judge, proceeded to convict and sentence the accused appellants as above vide impugned Judgment dated 10.05.2011 which is assailed in this appeal.
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Shri T.C. Sharma, learned counsel representing the
appellants vehemently and fervently urged that the entire
prosecution case is false and fabricated. He contended that the incident did not take place at the time mentioned in the FIR and in the statements of the eye-witnesses. He urged that the names of the so-called eye witnesses viz. Ashok Kumar and Vinod Kumar are not mentioned in the FIR. As per him, Ashok Kumar is the real brother of the first informant and thus, it is impossible to believe that he would have approved omission of his name as an eye witness in the FIR lodged by Premdas (PW-1). He further urged that the accused Veeru is not named in the FIR and thus, manifestly, his implication in the case is based on totally false, fabricated and improved version of the alleged eye witnesses. He further contended that as a matter of fact, Premdas was also not an eye witness of the incident. He drew the Court's attention to the statement of Ashok Kumar (PW-2) who admitted in his cross- examination that his brother Premdas used to work at Suratgarh and had returned home after completing his duty. However, Premdas (PW-1), claimed in his evidence that he was on leave on the fateful date and thus, Shri Sharma contended that Premdas has set up a totally concocted story in the FIR as well as in his sworn testimony regarding having seen the incident with his own eyes. He urged that as the witnesses have given contradictory evidence regarding the on duty status of Premdas on the relevant date, their testimony deserves to be discarded. As per Shri Sharma, Premdas was on duty at Suratgarh and has been created to be an eye witness of the incident. He further contended that the (Downloaded on 26/06/2019 at 11:05:24 PM) (7 of 13) [CRLA-688/2011] Police Station Jawahar Nagar is located at stone's throw away from the place where Bhagwandas was assaulted. Premdas admitted in his cross-examination that he told of the incident to the police officials who arrived at the spot within no time. However, no prompt FIR was lodged by the complainant which taints the truthfulness of the prosecution story. The witness even admitted that when the police reached the spot in the night time, his statement was recorded and his signatures were taken thereupon. However, no such written statement has been produced on record and thus, it has to be presumed that the FIR is a post investigation document. He also drew the Court's attention to the admission appearing in the statement of Premdas wherein, he stated that the Police prepared the site inspection plan on the morning next to the incident and that he submitted the FIR at that point of time. He also contended that Premdas admitted in the cross-examination that the police had read over the FIR (Ex.P/2) to him after he presented the same. But despite that, he did not tell the police that Veeru was also one of the assailants. He also urged that the specific role allegedly played by the accused in the incident is not described in the written report (Ex.P/1) as well as in the police statement of Premdas (Ex.D/1) and the material improvements made by the witnesses in their sworn testimony go to the root of the matter and destroy the evidentiary worth of the prosecution witnesses. He urged that while Ashok Kumar (PW-2) who is not named in the FIR as an eye- witness, contradicts the claim made by Premchand that he was on leave. The other eye-witness Vinod Kumar (PW-3) did not support (Downloaded on 26/06/2019 at 11:05:24 PM) (8 of 13) [CRLA-688/2011] the prosecution story and was declared hostile. He further urged that Dr. B.M. Sharma (PW-4), who carried out postmortem on the body of the deceased Bhagwandas, stated that he noticed semi- digested food in the stomach of the deceased. As per learned counsel Shri Sharma, this observation of the doctor, completely contradicts the account of the eye witnesses that the deceased had consumed food a little time before he was assaulted. He further urged that the recoveries made from the accused are false and fabricated. He drew the Court's attention to the statement of the I.O. and various recovery memos and urged that the accused Sonu son of Mamchand is in a habit of appending signatures whereas, while preparing the seizure memo of Chhura (Ex.P/6), the I.O. initially put the mark 'I to J' as LTI of Sonu, and thereafter his signatures were taken on the document. He urged that this conduct of the I.O. shows that the entire process of effecting recoveries, etc. is fabricated. He thus implored the Court to accept the appeal; set aside the impugned judgment and acquit the appellants of the charges.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants' counsel. He urged that the first informant Premdas (PW-1) and Ashok Kumar (PW-2) had no occasion to falsely implicate the accused appellants for the murder of Bhagwandas. He contended that the witnesses Premdas (PW-1) and Ashok Kumar (PW-2) have given minute details of the incident and their version is corroborated in material particulars by the medical evidence. As per him, the trivial discrepancies in the statements of the eye- (Downloaded on 26/06/2019 at 11:05:24 PM)
(9 of 13) [CRLA-688/2011] witnesses have to be ignored considering the fact they both are not highly educated persons and hail from rustic background. He urged that the fact appearing in the statement of Premdas that he gave the report after the site inspection memo had been prepared on 17.10.2007 has to be ignored considering the fact that the formal FIR (Ex.P/2) had reached to the Court of the concerned Magistrate on 18.10.2007 at 10.25 am. He contended that if the FIR had been registered post investigation on 18.10.2007 then, it could not have reached the Court of the concerned Magistrate in the early hours of the same day. He contended that no significant shortcomings are noticeable in the evidence relating to the incriminating recoveries made from the accused. The faithful evidence of the I.O. regarding the recoveries coupled with the fact that the weapons and the clothes recovered at the instance of the accused tested positive for human blood Group AB+ as per the FSL report Ex.P/42, corroborate the evidence of the eye-witnesses and establish the guilt of the accused comprehensively and hence as per him, there is no merit in the appeal which should be dismissed.
We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned Judgment and threadbare sifted the record.
Firstly, we proceed to consider the case of the accused Veeru. It is clear as day light that he has been falsely implicated by the complainant party by involving his name in the incident at a much later stage after the FIR had been registered. If at all, the accused Veeru had participated in the incident and if, Premdas and (Downloaded on 26/06/2019 at 11:05:24 PM) (10 of 13) [CRLA-688/2011] Ashok had both witnessed his involvement, manifestly, there was no reason as to why, they would spare the said accused and not name him in the FIR. Thus, we are duly satisfied that omission of the name of Veeru in the FIR goes to the root of the matter and his late introduction by the witnesses at the investigation stage taints the credibility of the prosecution case regarding his involvement in the case as a 'particeps criminis'. Both these witnesses alleged that Veeru was armed with the handle of a wooden chair. If this was so, while lodging the FIR, the witnesses could not have missed out from narrating this fact because three named accused were allegedly armed with sharp weapons and this fact is clearly stated in the FIR. Thus, the one holding a blunt weapon would definitely stand out and by no chance, could his name be missed when the FIR was being chalked out. In this background, we are of the opinion that the non-inclusion of name of the accused Veeru in the FIR is fatal to the prosecution case to his extent.
At the same time, we are of the firm opinion that the insignificant omissions and contradictions pointed out by learned counsel Shri Sharma in the prosecution evidence during the course of his arguments for questioning the veracity of the evidence of the eye-witnesses Premdas (PW-1) and Ashok Kumar (PW-2) are far too trivial so as to attach much importance. We have to keep in mind that the witnesses hail from downtrodden section of the society and are not highly educated and thus, trivial omissions in their statements regarding Premdas being on leave or being on duty, non-naming of Ashok Kumar as an eye-witness in (Downloaded on 26/06/2019 at 11:05:24 PM) (11 of 13) [CRLA-688/2011] the FIR have to be ignored because we find that the evidence of both these witnesses regarding the manner in which the incident took place, is natural and convincing and they could not be shaken when they were cross-examined by the defence.
In view of the discussion made herein above, we are inclined to rely upon the testimony of these witnesses regarding involvement and participation of the three accused Sonu son of Mamchand, Raju @ Khoti son of Mamchand and Sonu son of Premdas Valmiki, more particularly, as the role attributed to them by the witnesses in the incident matches with the description of injuries given by Dr. B.M. Sharma (PW-4) and the fact that the weapons recovered from all the three accused tested positive for blood group AB+ve which matches with the blood group of the deceased. The Medical Jurist (PW-4) Dr. B.M. Sharma, conducted the postmortem upon the body of Bhagwandas, issued the postmortem report (Ex.P/23) noting the presence of two cut wounds on the parietal and occipital area, a cut wound on the right supraclavicular area, a cut wound on the left scapular region and a cut wound on the left side of chest. The sixth injury was an abrasion on the face. The injury located on the chest penetrated the surface and the pericardium was cut on the left side. The injuries were undoubtedly sufficient in the ordinary course of nature to cause death. From the evidence of doctor as well, apparently the participation of more than one assailants holding sharp weapons is well established and the use of a blunt weapon in the assault is ruled.
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(12 of 13) [CRLA-688/2011] In wake of the above discussion, we are inclined to partly accept the appeal and acquit the accused Veeru son of Lalchand of the charges. At the same time, we are of the view that the learned Trial Judge, committed no error whatsoever while convicting the other three accused appellants namely Sonu son of Mamchand, Raju @ Khoti and Sonu son of Premdas Valmiki for the murder of Bhagwandas.
Accordingly, the appeal deserves to be and is hereby accepted in part. The impugned Judgment dated 10.05.2011 passed by the learned Additional Sessions Judge, No.1, Sri Ganganagar in Sessions Case No.48/2007 is quashed and set aside to the extent of the accused Veeru son of Lalchand, who is acquitted while giving him the benefit of doubt. The appeal preferred on behalf of Sonu son of Mamchand, Raju @ Khoti son of Mamchand and Sonu son of Premdas Valmiki fails and is hereby dismissed.
The accused Veeru son of Lalchand, Sonu son of Premdas and Raju @ Khoti are on bail. The bail bonds of accused Veeru are discharged whereas, the bail bonds of Sonu son of Premdas and Raju @ Khoti are cancelled. They shall be taken back into custody for serving out the remainder of the sentence awarded to them by the trial court.
However, keeping in view the provisions of Section 437-A Cr.P.C., the acquitted appellant Veeru is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of (Downloaded on 26/06/2019 at 11:05:24 PM) (13 of 13) [CRLA-688/2011] a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
37-Tikam/-
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