Rajasthan High Court - Jodhpur
Hakam Singh & Ors vs State on 30 March, 2017
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 465 / 2008
1. Hakam Singh S/o Harnek Singh, b/c Ramdasia, R/o Jandawali
2. Goga Singh s/o Harnek Singh, b/c Ramdasia, R/o Jandawali
3. Pappa Singh s/o Hakam Singh, b/c Ramdasia, R/o Jandawali
4. Gurpreet Singh S/o Hakam Singh, b/c Ramdasia, R/o
Jandawali, District Hanumangarh (Raj.)
----Appellants
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. R.S. Gill
For Respondent(s) : Mr. C.S. Ojha, Public Prosecutor
For complainant : Mr. Pankaj Sharma
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Judgment (per Hon'ble Moolchandani,J.) 30/03/2017 Reportable Validity of the judgment dated 17.6.2008 passed by learned Additional Sessions Judge (Fast Track) No.3, Hanumangarh in Sessions Case No.52/2007 (74/2006) (114/05) has been assailed, by which the accused-appellants have been convicted under Section 302/34 of IPC with life imprisonment with fine of Rs.5000/- each and in default of payment of fine to further undergo 3 months' rigorous imprisonment.
(2 of 20) [CRLA-465/2008]
2. The contents of F.I.R. No.568 (Ex.P/3) of Police Station Hanumangarh Junction reads as under :-
"vkt fnukad 27-09-2005 ds oDr 5-15 AM ij Jh thrk s/o gjusdflag tkfr jkenkfl;k mez 45 lky] fuoklh tk.kkokyh us gkftj Fkkuk vkdj tqckuh bryk nh fd eSa cqVkflag] gkdeflag o xksxk pkj HkkbZ gSA pkjksa HkkbZ vyx&vyx edkuksa esa ikl&ikl esa jgrs gSA gekjk firk gjusdflag gekjs ls FkksM+h nwjh ij vyx edku esa jgrk gSa dy 'kke dks djhc 8] 8 1@2 cts eSa o esjk HkkbZ cqVkflag rFkk firk gjusdflag rhuksa [ksr ls vius & vius ?kj vk;s rks eSa o cqVkflag us ns[kk fd esjs HkkbZ gkdefalg o xksxk rFkk gkdeflag ds yM+ds xqjizhr o iIik gkdeflag ds ?kj ls gesa xkfy;k fudky jgs FksA gkdeflag dk ?kj esjs iM+kSl esa gSA mu }kjk xkfy;k fudkyus ds dkj.k esjk yM+dk fjdw mQZ lrjkt esjs firk gjusdflag dks cqykdj yk;k fd budks le>k nks xkfy;ka er fudkys rc esjk firk gjusdflag djhc 9 cts jkf= esjs ?kj vk;k eq>s iwNk rks eSaus mudks xkfy;ka gkdeflag oxSjgk }kjk fudkyus dh ckr crkbZ rc mlus dgk rqe pqidj ?kj esa cSBks eSa mudks le>krk gwa rc esjk firk gkdefalg ?kj esa f[kM+dh [kqyh Fkh ftlds vUnj ls x;k gkdeflag ds ?kj esa gkdefalg] xksxk o gkdefalg ds yM+ds xqjizhr o iIik Fks ftUgksaus esjs firk gjusdfalg ds gkdeflag ds ?kj esa tkrs gh xsV dh f[kM+dh vUnj ls cUn dj nhA lHkh dgus yxs fd cw<sa dks Hkh vkt lcd fl[kkrs gSA ;g dgrs dh ykfB;k o yksgs dh xUnkyh ls lHkh us ,d jk; gksdj pksVs ekjuh 'kq: dj nh gesas yydkjk fd gekjs ?kj esa vk;s rks tku ls ekj nsaxs rc eSaus o cqVkfalag us esjs edku dh Nr ij p<+dj ns[kk rks esjs firk gjusdflag dks gkdeflag] xksxk] xqjizhrflag] iIik ykfB;k o xUnkfy;ksa ls pksVs ekj jgs Fks fQj eSaus nyhifalg o xqajnsoflag dks cqyk;k ftuds vkus ij geus gekjs edku dh Nr ij nqckjk p<+dj gkdeflag ds ?kj esa ns[kk rks esjk firk pksVs yxus ds dkj.k gkdeflag ds ck[ky esa ejk iM+k Fkk gkdeflag ikl esa [kM+k Fkk] xksxk] xqjizhr o iIik b/kj&m/kj gks x;s Fks gkdefalg oxSjk us esjs firk gjusdflag dks xkfy;ka fudkyus ls euk djus ij ykfB;k o yksgs dh xUnkyh ls pksVs ekj dj tku ls ekj fn;k gS bryk nsrk gwa dk;Zokgh dh tkosA "
3. Post investigation charge sheet was filed and the case was committed to learned trial Court, which after framing of charges, conducted trial, prosecution produced ten witnesses and also got documentary evidence exhibited, and after examination of the accused persons under Section 313 of CrPC, trial Court concluded the trial with aforesaid verdict by convicting all the accused persons under Section 302/34 of IPC.
4. While submitting oral arguments, it has been contended by the learned counsel for the appellant that almost all the witnesses of the prosecution have turned hostile. Even complainant has also not supported story of the FIR and he too (3 of 20) [CRLA-465/2008] has turned hostile, recovery of the alleged weapon is also not substantiated because one of the recovery witness has not been produced and nothing concrete has been uttered by another witness. Spot map (Ex.P/6) of the place of occurrence is suggestive that the alleged incident took place inside the tenement of a walled premises, which was not visible at all from outside and Buta Singh PW-5 has asserted that he witnessed the incident from roof top of the house of Jeeta Singh, but perusal of the spot map indicates that nothing could be observed from the terrace of Jeeta Singh's house into the adjacent house of Hakam Singh, so story of observing something factual becomes futile.
PW-4 Kaddu Singh is not an independent witness, who too has asserted in his cross-examination that a criminal case was tried against him pertaining to Hakam Singh's family member's kidnapping, so he was obviously nurturing animosity against appellant-accused Hakam Singh, so he has willfully uttered incorrect recovery against the appellant-accused.
There is no witness other than Buta Singh, evidence of whom also becomes useless, if appreciated in proper perspective because he himself has said that he too was out of the house of Hakam Singh, had he been there and would have seen something untoward, perpetrated upon his own father by his own brothers and their sons, then Buta Singh would have certainly interfered and spared his father from the alleged assault of other family members but he did not enter in the premises, where the alleged assault taken place.
So far as, injuries are concerned, those are also (4 of 20) [CRLA-465/2008] bit dubious, since doctor has opined certain internal organs having been effected sustaining grievous injuries but no penetrative and perforating nature wounds were found on the body of the deceased, which might have caused rapturing of spleen.
Testimony of Buta Singh, PW-5 is also not trustworthy because it has willfully been uttered to detriment interest of his brother in order to grab his share of property, despite being all the important witnesses of the prosecution hostile, the trial court has committed grave mistake in convicting the accused persons and the judgment impugned is not sustainable in the eye of law, so it be set aside and after allowing the appeal, appellants-accused be acquitted. Reliance has been placed on the judgment delivered in the case of Raju alias Rajaram & Anr. Vs. State of Rajasthan [2005(8) RDD 3156 (Raj.)(DB)].
The learned Public Prosecutor, per contra, rebutting the submissions made by the learned counsel for the appellants, has contended that there is no impact of hostile evidence on the merit of the story of the prosecution because conviction can be sustained even on the testimony of solo witness and Buta Singh, who is none else but brother of appellants- accused Hakam Singh and Goga Singh, has narrated everything ocular and has corroborated the incident by actual delineation of injury caused by all the appellants-accused to the deceased Harnek Singh. Recovery witness Kaddu Singh has also confirmed recovery of the assault weapons, which is duly corroborated by medical evidence, so there is no flaw in the impugned judgment (5 of 20) [CRLA-465/2008] and learned trial court has correctly passed the said judgment by convicting the appellants-accused, who assassinated Harnek Singh deliberately by causing grievous injuries. Hence, the appeal lacks merit and is liable to be rejected, so it be rejected. Reliance has been placed on the judgments delivered in the cases of Kartik Malhar Vs. State of Bihar [(1996) 1 SCC 614], Koli Lakhmanbhai Chanabhai Vs. State of Gujarat [AIR 2000 SC 210] and Vijay Pal Singh Vs. State, NCT of Delhi [(2001) 10 SCC 45].
5. Perused the record and examined the evidence, analysis of the evidence and material available on the record, discloses that prosecution has relied upon the testimony of Buta Singh (PW-5). Rest of the eye witnesses have not supported, version of the prosecution, even Jeeta Singh (PW-3), author of the FIR has turned hostile and has not supported prosecution.
6. Ex.P/3, FIR has been lodged by Jeeta Singh S/o Harnek Singh on 27.02.2005 as FIR No.568 under Sections 302 and 34 IPC and complainant-author of the FIR Jeeta Singh S/o Harnek Singh has named his two brothers Hakam Singh and Goga Singh and sons of Harnek Singh and Pappa Singh coupled with Gurpreet Singh sons of Hakam Singh, both Hakam Singh and Goga Singh are real brothers of complainant Jeeta Singh, whereas Pappa Singh and Gurpreet Singh are his nephews, being sons of Hakam Singh.
If we weigh and analyse testimony, then we find that PW-3 Jeeta Singh @ Jeet has turned hostile and he manifestly did not support version of the FIR and he has (6 of 20) [CRLA-465/2008] contradicted almost all the say of police statement recorded under Section 161 Cr.P.C., altogether, he has refuted important recitals of Ex.P/3 FIR, as well and has narrated that on the instance and say of neighbours and people present, he got lodged the FIR of their version and has even said that he is ignorant regarding getting access of his father from the window situated between the houses. He has further said that he is illiterate, so unable to know as to what papers were prepared by the police and has refuted any compromise with the accused persons and has further denied certain seizures therefrom, in cross-examination, he has also said that 7-8 people were there at Thana for lodging Ex.P/3, he does not know as to what was being lodged and he was asked to put his thumb impression, so he put it. It is also said that his vision is impaired and he so ails of night blindness and has also said that he could know facts mentioned in the FIR Ex.P/3 for the first time in the court and he never registered any say akin to that.
PW-1 Rinku @ Satraj Singh has also turned hostile and has expressed his ignorance about the alleged incident and has said that he was not there at his residence, on the day of alleged occurrence, while cross-examination, he has said that he did not convey alike to police and has refuted Ex.P/1, version of police statements.
PW-2 Gurdev Singh too has turned hostile and has said that he did not convey anything akin to Ex.P/2 to police authorities.
PW-4 Dalip Singh has also not supported the (7 of 20) [CRLA-465/2008] prosecution and has turned hostile and has refuted Ex.P/5, police statements and has explicitly denied death of Harnek Singh by alleged beating by accused persons.
PW-6 Dr. Jaspal who conducted postmortem has said that on 27.09.2015, he was posted at Government Hospital as a Medical Jurist and had conducted autopsy on the body of Harnek Singh, aged about 72 years, and following injuries were there on the corpse:-
(i) Lacerated wound 4" X ½" into bone deep on the left front parietal region
(ii) Bleeding from the left ear
(iii) Swelling 2"X 2" on the left cheek and fracture in mandible bone.
(iv) Lacerated wound 1"X ½"into bone deep on left parietal region.
(v) Lacerated wound 1"x ¼"cut through left pinna lower part
(vi) Incised wound 5"x ½" into muscle deep on the lower part of occipitial region of skull.
(vii) Swelling and lacerated would 2" X 2" and ½" X ¼" on the lower ½ part of right arm anteriorly.
(viii) Bruise 2" X ½" size on the left arm upper ½ part anteriorly.
(ix) Multiple bruise and multiple abrasions 13" X 7" size at the lower ½ part of chest, left side postirolaterally and upper part of abdomen.
(x) Bruise 6" X 4" on left gluteal region.
(xi) Abrasion 3" X 1" on left iliac crest region pasterolaterally.
(xii) Bruise 6" X 3" size on the left thigh laterally.
(xiii) Bruise 2" X ½" size on left shoulder joint Superingly eyes were closed, pupil dilated and fixed.
He has further said that ribs were found broken in chest, peritonitious membrane of stomach was ruptured and blood was there in the stomach and lacerations were there on the spleen and has said that an abrasion of 1" X ½" X ½" anterio lateraal part of the spleen was also found.
(8 of 20) [CRLA-465/2008] Expressing his opinion on cause of death, he has said that the cause of death was due to injury on vital parts in left lung and spleen and drain of blood from these organs coupled with shock and these injuries were antemortem. He has also said that Ex.P.12 is the postmortem report, which was prepared by him, which contains his signatures, in his cross-examination he has said that, "it is correct that according to him, the cause of death was injury No.9. On a query that whether that could be caused owing to laceration on spleen, he has replied that in event of hoemorrhage due to laceration, death could occur and has also said that he had seen spleen and found blood on opening the body.
7. PW-5 Buta Singh is the sole eye-witness, who has supported ocular version, he too is son of Harnek Singh deceased and real brother of appellants-accused Hakam Singh and Goga Singh and according to version of FIR, it is disclosed that he as well as Jeeta were abused by Hakam Singh, Goga Singh and sons of Hakam Singh Gurpreet and Pappa. So, his son Rinku @ Satpal went and brought his father Harnek Singh to check and pursuade them not to hurl abuses, then Harnek Singh came at about 9.00 p.m. and asked them to maintain peace and said that he was going to make them understand, then his father went inside the house of Hakam Singh from open window and just after entry of Harnek Singh, it was latched from inside and Hakam Singh, Goga Singh, sons of Hakam Singh, Gurpreet and Pappa, were there and all started beating Harnek Singh with the say that let he be taught lesson, they daunted that in case, if anybody (9 of 20) [CRLA-465/2008] came in their house he too will be killed, then he and Jeeta Singh went up side on the roof of the house to witness the event and found that Harnek Singh was being beaten by Hakam Singh, Goga Singh, Gurpreet and Pappa with lathis and gandaliyas, but, in his testimony, nothing akin to entry of Harnek Singh from window is stated and that they went to call Gurdev Singh and Dalip Singh, then again came to their terrace and found his father dead and Hakam Singh had given a sabbal stroke to his father, when Dalip Singh and Gurdev Singh challenged them, then they fled away from the window after opening it, then all descended down into the house of Hakam Singh, where they found his father lying there as dead, then they all returned back to their houses silently, and at about 4-4.30 a.m., Jeeta came to him and asked to go to Thana for lodging FIR and they lodged the report, in his cross- examination, he has said that there was no animosity of anybody with his deceased father, besides issue of partition of land, house of his father is about 1 murabba away from the house of Hakam Singh, he has further said that he did not apprise anybody of village or Sarpanch with respect to the incident.
8. According to the prosecution version, incident occurred at around 8-8.30 p.m. or 9.00 p.m., whereas FIR has been lodged on next day morning at 5.15 p.m., despite the police station being 8 kms. away from the place of incident. Even after such a killing tragedy, Buta Singh has said that all silently went away to their home and they went to thana next morning, makes the story bit unnatural and the delay too appears to be astonishing, in a situation, when all other witnesses have turned (10 of 20) [CRLA-465/2008] hostile and have not supported the prosecution version.
9. Ex.P/6, spot map, is also an important document to ascertain truth, which shows that house of Buta Singh is adjacent to the house of Hakam Singh in western side and house of Jeeta Singh @ Jeet is situated adjacent to the house of Hakam Singh in northern side and main door of the house of Hakam Singh is situated towards galli, which is in the eastern side and there is a public lane on the side of south from house of Hakam Singh and in the house of Hakam Singh, at place "X", body of deceased Harnek Singh has been shown to have been lying. Entry of the house of Jeeta Singh is from eastern side galli, whereas entry of house of Buta Singh is from public lane situated in south direction, so to rush to the house of Jeeta or to rush to the house of Buta Singh, after getting entry from their gates, is bit away and no "connecting window", has been shown between the houses of Hakam Singh and Jeeta or Hakam Singh and Buta Singh, in his cross-examination, Buta Singh has said that he apprised the police that he was standing near the window, but no such window has been shown in the spot map as delineated in Ex.P/6. Perusal of the spot map also shows that peeping into the house of Harnek Singh is not feasible from the house of Buta Singh because adjacent to the house of Buta Singh, there are constructed rooms of Hakam Singh so observing anything from the roof of Buta Singh appears to be untrustworthy unless one get access upon the roof terrace of Hakam Singh, where the alleged offence is said to have been committed, it was not possible to look inside or observe anything from there, whereas in his cross-examination, he has (11 of 20) [CRLA-465/2008] said that there was an access "mori" between the house of Hakam Singh and Jeet Singh, which was being used by both the brothers for entry and exit and an individual could get access bowingly through that "mori access" but no such "mori" is shown, between the two houses of Hakam Singh and Jeeta Singh in Ex.P/6.
10. Kaddu Singh (PW-9) is a witness of recovery but this witness does not appear to be "indifferent" since Buta Singh has himself said that Kaddu Singh and wife of this witness lodged an FIR in Thana that Buta Singh was kidnapped and has also said that police had inquired him.
11. Occurrence of the offence has been shown to be of around 9.00 p.m. and police station being 8 kms. away from there, but surprisingly, the incident has been reported to the police station on the next day morning at 5.15 a.m. and both the brothers, whose "father" was allegedly killed in the premises of Hakam Singh, which is stated to be a dense living mohalla, nobody came there for help nor anybody went to the police station to inform tragic and they sat idly with complete silence overnight, without "crying" or informing to the police authorities, does also go to suggest that the story of the prosecution is not trustworthy with respect to the place of occurrence and manner in which the offence is alleged to have been committed. True version has deliberately been withheld for the reasons better known to the prosecution, which obviously makes the story of the prosecution rather unbelievable.
(12 of 20) [CRLA-465/2008] Buta Singh (PW-9) asserts that there was a window, which was being used for entry to and fro between the houses of Hakam Singh and Jeeta Singh from where one could have got access in a bowing position but the spot map Ex.P/6 does also not show existence of such window, which too makes the things obscured.
12. Cross-examination version of Buta Singh reveals that he did not try to spare his father allegedly because the accused persons had daunted and challenged him and also no neighbour couraged to go inside but no such neighbour witness has been produced by the prosecution, whereas testimony of such neighbour and independent witness could have been of vital help to arrive at a logical conclusion and since Buta Singh has himself accepted that neighbours were there who also could not muster courage to spare the fight.
13. Buta Singh has said that after the demise of his father, rest of the 24 bighas of land was with his mother but surprisingly this mother witness too, has not been produced by the prosecution, which also makes the prosecution version bit dubious.
14. Buta Singh has asserted that Dalip Singh and Gurdev Singh also came there and witnessed everything but Dalip Singh (PW-4) and Gurdev Singh (PW-2) have also come in the witness-box but they have not supported the prosecution story and have become hostile, which too impinges upon the veracity and makes it unreliable.
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15. PW-9 Kaddu Singh is a witness of recovery and he has just narrated the recoveries in a way of narration but the documentary evidence, which ought to have been proved in consonance with the provisions of Evidence Act has not been proved and no documentary evidence pertaining to recovery has been exhibited through this witness, the day when his testimony has been recorded on 22.05.2007. Sheer say that a chronology and sequence of recovery took place before him, save, referring the documents and getting them exhibited, makes the testimony fragile and the exhibits become unacceptable to be relied, in his cross-examination, he has said that near the house of accused persons, there are several houses of others, as well, he has asserted that he too was interrogated in respect of disappearance of Buta Singh, which is enough to say that this witness is not indifferent and is an interested witness, his testimony becomes less reliable altogether, when he says that there had been a clamour and acrimony in the night but in what respect the chaos occurred, is not known to him, which too makes the testimony bit doubtful. He has also said that he knows all the accused persons very well and was not in vogue to visit their houses for last 30 years and has said that police had come at 4-4.30 a.m., when Sarpanch and many people were there, he too was there but if we scan Ex.P/3, then it emerges that it was lodged in the morning at 5.15 a.m. a place which was situated 8 kms. away from the place of incident, how the police party and people along with this testimony gathered there at 4 or 4.30 a.m. does also go to say that something material has been concealed and truth has (14 of 20) [CRLA-465/2008] illogically been kept latent. Moreover, this say is also surprising that at the time when police came, the said house is stated to be lying locked and their locks were opened by the police after obtaining keys from accused persons, because it becomes improbable that the houses would be locked and keys retained after leaving "dead-body" inside and remaining present there with keys to be rendered to police for the trace of dead body. It is vitally important that testimony of this witness, is of trite worth because the documentary evidence has not been proved per exhibiting them and sheer a say has got narrated like a story.
16. PW-7 Sunil is a police cop depositing the sample in FSL, who has proved Ex.P/13, 14 and 15 and has also said that the samples were returned to by the FSL with objections being Ex.P/15, so the same could not be deposited. He has further proved Ex.P/16, 17, 18, 18A, 19 and 19A. He has further ratified Ex.P/20 and 21 and its copies but in his cross-examination, he has said that at the time of getting forwarding letter issued, whether samples were rendered in the S.P. Office is not clear to him, earlier he has said that the samples were not given in the S.P. Office and taking a contrary view he has again said that the same were given in the S.P. Office. What kind of objection was raised by the FSL has also not been made explicit by this witness.
PW-8 Mangat Ram is a malkhana incharge who has said that he got the samples relating to case No.568/2005 and deposited them at S.No.285 vide Ex.P/22. Again on 30.09.2005 and 1.10.2005 samples were given for depositing, which were got deposited vide Ex.P/22 and Ex.P/23, which were given to F.C. (15 of 20) [CRLA-465/2008] Constable Sunil on 17.10.2005 for depositing in fSL and Sunil has deposited its receipt. He has also said that the samples sent on 17.10.2005 were returned with the objections but Ex.P/23 does not mention entry of re-issue but has said that the said entry was made in Ex.P/22.
17. PW-10 Virendra Jhakhar is the Investigating Officer of the Incident and he has said that on 27.09.2005, he was SHO, P.S. Hanumangarh and on that day Jeeta S/o Harnek Singh came to Thana and gave oral version of the incident on the basis on which, FIR was lodged, but if we weigh statements of Jeeta Singh (PW-3), then he does not support this aspect but has said that he is an illiterate and did not submit the said FIR. Perusal of statements of Jeeta Singh (PW-3) also shows that there are thumb impressions of Jeeta on the FIR which goes to indicate that he is not literate. He has further said that on arriving at the place, he prepared spot map, which is Ex.P/6. Appreciation of this document also goes to suggest that it is not delineating the factual aspect as narrated by the witnesses, since the "window" stated to be existing between the houses of Jeeta Singh and Hakam Singh has also not been shown, as such, the say of this witness mars existence of vital facts.
Statements of this witness has been recorded on 16.02.2008 and documents relating to information of Section 27 (Ex.P/19) and recovery thereafter as per Ex.P/20 and spot map (Ex.P/21) have been proved on 16.02.2008 by this witness, who is a police witness and these documents, which are of great importance, has not been proved by the recovery witnesses and (16 of 20) [CRLA-465/2008] has not been got exhibited as discussed earlier. This witness has narrated sequence of investigation conducted by him but Lalchand, who has been said to be another witness of recovery, has not been produced by the prosecution and testimony of other recovery witness Kaddu Singh (PW-9) has been found to be not of an independent witness, who too has not proved the documents by referring and exhibiting them as per the provisions of the Evidence Act.
18. Cross-examination of this witness enlightens enough, as he too has said that from Jhandawali to Hanumangarh Junction, modes of conveyance are available throughout the night and three-wheeler ply till night, he too has said that Jhandawali is 8 kms. away from Hanumangarh and there is a concrete road, he has also said that at the place of occurrence, he could not heed the source of light, so it was not mentioned in Ex.P/6. He has also said that he tried to take evidence of Bhagiram, Rajkumar, Kishore Chandra, Sultan Ram, neighbours of the event place, but they did not choose to testify, which goes to show that evidence of independent witnesses lacks.
This witness has also admitted that he found that there was animosity between accused and Buta Singh because of land dispute. Several witnesses, to whom this investigating officer has relied that they were consulted and their signatures were taken on certain documents also falsifies, when they go against the story of the prosecution by being hostile.
19. Under the provisions of Section 313 Cr.P.C., the accused persons have advanced a defence that Buta Singh was (17 of 20) [CRLA-465/2008] nurturing hostility against them, owing to land dispute and had forged a will to grab land and they withhold the testimony of mother in order to shun disclosure of truth, though no evidence is there on the record with respect to alleged "testament", but it is true that mother of accused Hakam Singh and Goga Singh, who is wife of deceased Harnek Singh and mother of witness Buta Singh has not come forward for evidence, which makes the version bit away from verity being unnatural as well.
20. Upon appraisal of whole of the testimony of the prosecution as scanned above, it emerges that several important witnesses of the prosecution have turned hostile, even the author of the FIR has not supported it, who is none else but real son of deceased Harnek Singh. Witnesses shown to have gathered on happening of unfortunate, namely, Gurdev Singh and Dalip Singh, have also turned hostile. One of recovery witness Lalchand has not been produced by the prosecution, another one Kaddu Singh (PW-9) appears to be not indifferent because of having history of involvement in certain criminal case pertaining to abduction of an individual of the victim/complainant family. Memos of recovery pertaining to Section 27 of the Evidence Act, its spot map and recovery thereto have also not been proved by marking them exhibits according to the provisions of the Evidence Act and they have sheerly been narrated in a 'story say, way" on the day when the testimony of this witness has been recorded and have subsequently been exhibited by the Investigating Officer, who is not an independent testimony to prove documents relating to recovery.
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21. Significant factual aspects have also been concealed. Existence of "window" which stated to be there between the houses of Buta Singh and Hakam Singh through which, usual access is stated to be in vogue has also not been shown in the spot map.
22. Timings of the alleged offence also mismatches because it has been told that incident occurred around 9.00 p.m. but lodging of the FIR is one day ahead of the incident, which is belated and no reason of delay is explained but unnatural have been narrated as after the unfortunate, Buta Singh and Jeeta went to their houses silently and in the morning Jeeta Singh and Buta Singh decided to proceed to the police station. The place of occurrence being occupied by so many neighbours but they too did not raise any alarm, whereas their presence has been quoted at the time of the incident, since they have allegedly been told to be given ultimatum by the accused persons that if they tried to spare, unpleasant will also be done with them, but none approached to the concerned police station, which was well connected with concrete road and availability of conveyance throughout the night and it was merely 8 kms. away from the place of occurrence to inform police authorities and to lodge FIR, which too makes the story of the prosecution highly doubtful, under the circumstances, when family relatives and son of the deceased, even complainant making the story of the prosecution capsized by denying it and being hostile.
(19 of 20) [CRLA-465/2008] As such, it is clear that prosecution has failed to establish its case beyond the realms of reasonable doubt.
23. True it is that conviction could sustain upon testimony of a solitary witness and relevants of hostile witnesses could also be appreciated but in case under hand, significant witnesses of the prosecution have turned hostile, even author and son of the deceased has not supported prosecution version, there is a delay of about one day in registering the FIR and conduct of the witnesses Buta Singh and Jeeta Singh, rather reflects unnatural their being slept silently overnight without informing to the police and lodging the FIR. Author of the FIR refuting his version and other independent witnesses too choosing speaking against the prosecution story, are such unnatural and unreliable reasons, which weakens the story of the prosecution, hence, the authorities relied by the prosecution do not support.
24. In Baijnath & Ors. vs. State of Madhya Pradesh, (2017) 1 SCC 101, Hon'ble the Apex 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, Hon'ble the 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.
For the reasons discussed above, we are of the view that the learned trial court faulted in arriving at the finding of (20 of 20) [CRLA-465/2008] guilt and we feel that prosecution has failed to prove its case beyond the realms of reasonable doubtfulness, therefore, benefit of doubt goes in favour of the appellants-accused.
In the result, we allow this appeal, set aside the judgment of the trial court and acquit all the appellants-accused persons from the charges of Sections 302 and 34 IPC.
Apart from appellant-accused Hakam Singh, rest of the appellants-accused are on bail, so they are not required to surrender, their bail bonds are cancelled and appellant-accused Hakam Singh be released forthwith, if his custody is not required in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C., the appellants-accused are directed to forthwith furnish a person bond in the sum of Rs.30,000/- and a surety bond in the like amount, respectively, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court. (G.R. MOOLCHANDANI) (GOPAL KRISHAN VYAS)J. /skm/