Rajasthan High Court - Jodhpur
Chand Mal vs State on 24 April, 2017
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 501/1989
Chand Mal S/o Shankar Lalji Jat, Resident of Borkheri, P.S.
Nimbahera, District Chittorgarh.
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Vineet Jain and Mr. K.S. Lodha
For Respondent(s) : Mr. C.S. Ojha, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Judgment 24/04/2017 (PER HON'BLE MR. JUSTICE G.R. MOOLCHANDANI) REPORTABLE:-
The instant appeal has been filed against the judgment dated 4.12.1989 passed by learned Sessions Judge, Pratapgarh in Sessions Case No.73/1985 convicting and sentencing appellant-accused Chand Mal as under:-
Under Section 302 I.P.C life imprisonment and a fine of Rs.200/- and in default to pay fine, to undergo for four months rigorous imprisonment.
(2 of 13) [CRLA-124/2007] Under Section 460 I.P.C Five years rigorous imprisonment and a fine of Rs.200/- and in default to pay fine to undergo for four months rigorous imprisonment. Under Section 148 I.P.C One year rigorous imprisonment and a fine of Rs.100/- and in default to pay fine to undergo for two months rigorous imprisonment. Under Section 323/149 I.P.C six months rigorous imprisonment and a fine of Rs.100/- and in default to pay fine to undergo for two months rigorous imprisonment.
2. The recitals of the F.I.R Ex.P22 reads as under :-
lsokesa] Jheku S.H.O. lk-
iqfyl Fkkuk] fuEckgSM+k egksn;th] uez fuosnu gS fd izkFkhZ Jh ukjk;.k yky firk exuh jke tkV fuoklh cksj[ksM+h dk gwaA esjs firk exuhjke] HkkbZ gtkjhyky o yM+dk dkyqjke lfgr iqjk ifjokj ,d gh edku esa jgrs gSA xr jk=h dks djhc 2 cts tc ge lc lks;s gq, Fks rc cnek'kku can <kfy;s esa ge lks;s gq, ij lkeqfgd rkSj ij geyk dj ekjihV djus yxsA ns[kk rks dqy 6 O;fDr FksA ftlesa ls ,d vkneh Jh pkaney firk Jh 'kadj tkV fuoklh cksj[ksM+h igpkuus esa vk;k ckdh ugha ge fpYyk;s rks gesa cpkus ds fy;s xokg Jh jkeflag] Jh cnzhyky jkor] Jh eksrhyky jkor oxSjkg us ekSds ij vk x;sA xokgksa ds vk tkus ls ij cnek'kku viuh lkbZfdys 5 o ,d cSVjh 3 lsy dh ogh NksM+dj Hkkx x;sA ekjihV ls esjs firkth Jh exuhjke ds flj esa pksV yxh gSA rFkk esjs Lo;a ds] Jh gtkjhyky rFkk Jh dkywjke ds Hkh pksVs vkbZ gSA cnek'kksa ds ikl dqYgkfM;ka o ykfB;ka FkhA vU/ksjs ds dkj.k cnek'kku o ykBh dqYgkMh igpkuus esa ugha vk;sA dsoy pkaney gh igpkuus esa vk;kA vr% Jheku ls fuosnu gS fd cnek'kku ds f[kykQ dk;Zokgh fd;s tkus dk d"V djkosA izkFkhZ Sd/-
fnukad 4-4-85 ¼ukjk;.k yky tkV½
3. Nine accused persons namely Jorawar Singh, Madan Lal, Chandmal, Bhagwati Lal, Jagdish, Manohar, Ashok, Gopal, Suresh were tried by the trial court, the prosecution (3 of 13) [CRLA-124/2007] produced as many as nineteen witnesses and got exhibited fifty nine documents defence has also produced one witness, while arriving at the impugned findings, the learned trial court acquitted eight accused persons and convicted accused-appellant Chandmal, who is before us as an appellant.
4. Heard submission of both the sides, learned counsel for the appellant-accused has argued that the trial Court has disbelieved the story of the prosecution and eight out of the nine accused were acquitted by the trial Court, it is an admitted position that there was animosity between the family of the Chandmal and that of complainant and criminal cases were subjudice against complainant side, so he has falsely been implicated in this case, there are vital contradictions in the evidence of the prosecution, which goes to reveal that prosecution has miserably failed to establish its case beyond reasonable doubt against the appellant-accused. It has further been contended that the trial Court has held, that the weapon of assault was Kulhari (axe), which has been so said by several alleged eye witnesses, whereas the said weapon has not been recovered, on the instance of the accused-appellant Chandmal and the said Kulhari (axe) was recovered on the information of another co-accused Jorawar, who has already been acquitted by the trial court, notwithstanding the trial Court has committed material illegality and irregularity in accepting the evidence and basing the findings on the said set of evidence, prosecution has failed to establish its case, so the findings of the trial Court are not tenable and are liable to be rejected, so appeal be allowed and the findings of guilt be set (4 of 13) [CRLA-124/2007] aside.
On the contrary, learned public prosecutor has contended that the case of the prosecution is totally proved on the basis of the testimony of the several injured persons, who have clearly indicated and have categorically said that accused Chand Mal was liable for the alleged assault by giving Kulhari hit, Maganiram was killed and several eye witnesses were injured in the midnight, Chandmal was having 'hostility' against the family of the complainant, there were several cases subjudice between both the sides , so to eliminate and to take avenge, family of the complainant was assaulted after barging into the premises of the complainant in odd night hours, injuries of the complainant side have properly been explained by the medical evidence as well, there is no alleged flaw in the findings of the trial Court, so appeal be dismissed.
5. Examined the record and minutely gone through the impugned findings.
6. Perusal of F.I.R, divulges that apart from complainant Naraian Lal Jat, father of the complainant Shri Magniram, Hajarilal and Kaluram allegedly sustained injuries and Magniram later succumbed to his injuries. It is also mentioned that owing to darkness the assailants (rascals) and their lathis and Kulharis could not be identified since it is mentioned that "vU/ksjs ds dkj.k cnek'kku o ykBh dqYgkMh igpkuus esa ugha vk;sA dsoy pkaney gh igpkuus esa vk;kA", several witnesses of the prosecution have turned "hostile" and they have not supported the version of the prosecution.
(5 of 13) [CRLA-124/2007] There are significant contradictions in the testimony of almost all the eye-witnesses and they have made several utterances in contradiction to their earlier police statements.
7. PW.1 Hajari an injured witness, has said that Chandmal had assaulted upon his father with ' Kulhari', whereas Ex.P.4 police statements of this witness, contains that axe 'Kulhari' was in the hand of Jorawar Singh Ex.P.4 police statements have also got a recital that it was Chandni night and he had identified 'Chandmal' resident of Borkheri and Jorawar Singh, Jagdish Kumawat and Suresh Kumawat, but contrary to this version, Hajari had said that he did not identify others except Chandmal, several aspects of his statements Ex.P.4 have been discarded by this witness, since he has said that he did not witness Jagdish, Jorawar Singh and Suresh at the place of occurrence, while cross-examined he has totally collapsed the story of the prosecution by saying that gfjnkl lk/kw ls Hkh gekjh nq"euh py jgh gSA gesa vkx yxkus o ekjihV ds ckcr~ igys gfjnkl ij gh "kadk FkhA pkUney dks iqfyl us idM+k vkSj pkUney us bdcky fd;k rc gesa pkUney dk irk pyk, and he has specifically admitted that after detention and confession of Chandmal, they could know about his involvement, which makes the entire testimony and contentions of Ex.P.22 F.I.R. false.
8. PW.2 Ambalal has gone contrary to the facts on number of persons, allegedly involved in the incident, because Ex.P.22 F.I.R discloses that there were six assailants, whereas this witness has said that "nine assailants" were there, this witness has also caused hostility to the version of the (6 of 13) [CRLA-124/2007] prosecution, whereof the public prosecutor has requested for cross-examining this witness, since such a note is there in the statements of this witness. Unbelievable utterances of this witness have also appeared, since he has said that "magniram ke alawa baaki ke hum sabhi ke chote aai thi", this witness has also contradicted several important versions of his police statements Ex.P.5, since he has said that he too was injured and his mother was also injured, but the F.I.R does not discloses anything alike, likewise there is no injury report of Ambalal or his mother on the record. Going contrary to the version of holding 'Kulhari' by Jorawar, as mentioned in police statements, he has said that Chandmal was having 'Kulhari', which also makes the testimony of this witness non-trustworthy, he too has said that they were having hostility with "Heera Das" and a case was also subjudice against him, so they got suspicion against "Heera Das", as well, as such, this witness does not help the prosecution.
9. PW.3 Kishan Lal, PW.4 Ram Lal, P.W.5 Ram Singh, PW.6 Om Prakash, P.W.7 Kalulal, PW.8 Laxmilal and PW.9 Naraianlal have become "hostile" and vitals of their police statements have been discarded by these witnesses.
9. PW.10 Naraian is author of the F.I.R, but several important narrations of his police statements have been discarded by this witness, he too has said that he could identify Chandmal, but could not identify other accused, but has specifically said that he did not mention several facts in Ex.P.22 F.I.R. Ex.P.22 says that because of darkness, (7 of 13) [CRLA-124/2007] accused persons, their lathís and Kulhari could not be identified, but this witness has said that he did not report anything akin, Ex.P.22 discloses name of Chandmal whereas this witness has said that apart from Chandmal name of Jorawar Singh was also informed, which shrouds contention of the F.I.R.
Contrary to the disclosure of Ex.P.22 FIR, he has said that he did not report several such aspects, he has further contradicted important narrations of Ex.D.1 police statements and has also said that "Heera das" was having animosity with them, he came in the night to kill them earlier, he had beaten his father, he has further said that he is having enmity with Chandmal for last 30 years, but he did not say it in Ex.P.22 and has also said that Chandmal had lodged a report against him regarding theft of wheat, in which his bail was granted, he has also said that prior to this incident, Chandmal had lodged a case of beating against him, so it is clear that this witness has also made several contradictory statements vis-a-vis to the F.I.R Ex.P.22 and police statements. According to his testimony, he involves Jorawar Singh apart from Chandmal, the alleged Ex.P.22 incriminates Chandmal only, and there is an admitted position of animosity between the rival sides.
10. PW.11 Dhapu wife of Naraian has said that she did not sustain any injury and has also said that she is unaware about any animosity with Chandmal because nothing of that kind came before her, she too has said that she had identified (8 of 13) [CRLA-124/2007] Chandmal, who was having 'Kulhari' and hit Magniram and she was witnessing while lying, she too has contradicted several parts of her police statements. Contrary to her examination-in-chief, she has said that it is correct that prior to this incident, Chandmal had lodged cases of crop-theft and beatings, she has also said that in Ex.D.2 police statements, she did not inform that Chandmal had inflicted Kulhari injury upon Magniram. Vital contradictions, have emerged in the testimony of this witness and she has contradicted Ex.D.1 Police statements and at one point of time her assertion that her family was not having any animosity with Chandmal and contrary to that in her cross, her assertion that criminal cases of Chandmal were there against her family, makes the credentials of this witness untrustworthy.
11. PW.12 Kaluram is an injured, but he has said that he does not know as to who hit upon his grand-father Magniram and who hit lathi on Magni is also not known to him, he has said that Chandmal was having 'Kulhari', but this witness sustained injury of stone pelting and who caused it, is also not known to him, in his cross-examination, he has said that he was not interrogated by police and police did not ask anything from him, he too has contradicted and disbelieved several statements of Ex.D.3 police statements.
12. PW.13 Mangilal going contrary to the contents of F.I.R, which contains that six persons were there, has named nine persons as assailants, he has said that he could identify only one person Chandmal and he does not know other accused (9 of 13) [CRLA-124/2007] persons, he has also said that, prior to the arrival of villagers, the accused persons fled away, he too has accepted that his family is not having talking terms with Chandmal and cases are pending between them, in his cross-examination, he has also said that police did not interrogate him, contrary to the time of event, which is of midnight, he has said that the quarrel, occurred in the evening and at what time police came, he does not know, he has further said that the quarrel took place in the evening at 8 p.m., which makes the entire story doubtful. He too has discarded several narrations of Ex.D.4 police statements.
13. Majority of the witnesses of the prosecution have alleged that Chandmal was having an axe (Kulhari) but contrary to it a "lathi" vide Ex.P.24A has been shown to have been recovered from Chandmal, so it too is of no credit.
14. PW.15 Shri Rajendra Kumar Gupta is a Doctor, who conducted postmortem on the body of deceased Magniram on 07/04/1985, he has said that on 04/04/1985, Magniram was admitted in comma condition because of head injury, he could not regain consciousness and died on 06/04/1985, describing his injuries, he has further said that according to his opinion, Magnaram died of head injury and shock and the head injury was sufficient to cause death in the normal course, he has further said that he had examined Jhamkubai, Mangilal, Narain and Kalu on 04/04/1985 and had examined Hajarilal on 06/04/1985.
PW.18 Shri Rehmatulla has denied recovery of 'Kulhari' and has become hostile, likewise PW.19 (10 of 13) [CRLA-124/2007] Mohammad Mian son of Shri Aman Khan has also denied any recovery before him.
15. There were nine accused persons against whom trial was conducted, but eight out of nine, have been acquitted by the learned trial Court and the findings suggest that the trial Court held that Kulhari was the weapon of assault, but according to the statements of the recovery witnesses, recovery of the said weapon Kulhari (Ex.P.57) has not been established, because PW.18 Rehmatualla, recovery witness has become "hostile" and another witness Nanakram has not been produced before the trial Court and said 'Kulhari' has been shown to be recovered from "Jorawar Singh" and not from accused Chandmal, who has been acquitted by the trial court. Appellant-accused Chandmal was arrested vide Ex.P.3 on 10/04/1985 and according to his information Ex.P.51 a "lathi" was recovered vide Ex.P.24A, which goes to say that no such weapon Kulhari was recovered or attributed to Chandmal.
16. Conviction U/s 460,148 and 149 denotes collective culpability and these provisions are also attracted in event of involvement of multiple accused persons but out of nine accused persons, eight have already been acquitted by the trial court, nevertheless solo accused appellant Chandmal has been convicted under the said provisions of "collective culpability", which too is unsustainable in the eye of law.
(11 of 13) [CRLA-124/2007]
17. It is important that there is no State Appeal against the acquittal of rest of the eight accused persons.
18. Prosecution has miserably failed to establish its case on the basis of reliable and material evidence, which lacks in this case, almost all the eye witnesses of the prosecution have contradicted their police statements and contents of the F.I.R, as well.
Kulhari has been shown to be recovered from one Jorawar Singh, who has already been acquitted by the trial Court, whereas in the testimony, 'Kulhari' is attributed to the accused-appellant, which has not been recovered at all from the instance or on the information of the appellant-accused Chandmal, there is no Kulhari injury on the body of the deceased.
Reliance has also been placed on the following authorities Mahendra Singh Vs. State of Rajasthan, 1989 Supp (1) SCC 338, Ram Lakhan Singh & Others. Vs. State of Uttar Pradesh, 1977 SCC (Cri) 474, Narainbhai Prajapati and Others Vs. Chhatrasinh Kanji and Others, 1977 SCC (Cri)284.
19. In catena of judgments including Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and in Golbar Hussain & Ors. Vs. State of Assam & Anr., (2015) 11 (12 of 13) [CRLA-124/2007] SCC 242, Hon'ble Supreme Court has observed that "it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted"
20. Baijnath & Ors. vs. State of Madhya Pradesh, 2017 1 SCC 101, Hon'ble the Supreme Court has held that in the cases of deficiencies of proof, benefit would be available to the person charged and in Narendra Singh & Another v. State of M.P., (2004) 10 SCC 699, the Hon'ble Apex Court has also held that in event of there being two possible views, one supporting the accused should be upheld and Hon'ble the Supreme Court has recognized presumption of innocence as a human right.
So, we feel that the findings of trial Court deserves to be quashed because prosecution has failed to prove its case beyond the confines of reasonable doubt and the appellant-accused is entitled to get benefit of doubt.
We, therefore, allow the appeal, as such, the impugned findings of learned trial Court are hereby quashed, the appellant-accused is on bail, so he need not to surrender, if such is not required in any other case, his bail bonds are discharged.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused/appellant is directed to forthwith furnish a personal bond in the sum of Rs.50,000/-(fifty thousand) (13 of 13) [CRLA-124/2007] and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
Record of the lower Court be sent back, promptly with a copy of the judgment.
(G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J. Sanjay/T. N. kushwaha