Rajasthan High Court - Jaipur
Shimbhu Ram And Anr vs State Of Rajasthan Through Pp on 28 September, 2022
Author: Sameer Jain
Bench: Pankaj Bhandari, Sameer Jain
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 730/2013
1. Shimbhu Ram S/o Sheodan
2. Sheodan Ram S/o Balu Ram
Resident of Dhani Lamba Ki Tan Kurbada, Police Station Neem
Ka Thana, District Sikar
(At present in Central Jail, Bikaner)
----Accused-Appellants
Versus
State of Rajasthan through PP
----Respondent
For Appellant(s) : Mr. Arvind Kumar Gupta, Sr. Adv.
assisted by Mr. Anurag Pareek, Mr. Saurabh Pratap Singh Chauhan, Ms. Savita Nathawat, Mr. Tanay Jain, Mr. Kapil Bhardwaj, Mr. Kuldeep Yadav For Respondent(s) : Mr. Dheeraj Singhal Mr. Javed Choudhary, AGA HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE SAMEER JAIN Judgment PER SAMEER JAIN, J.
Reserved on 24/08/2022 Pronounced on 28 /09/2022
1. The appellants have preferred this appeal aggrieved by the judgment and order of conviction dated 28.09.2013 passed by Additional Sessions Judge, Neem Ka Thana, District Sikar for offences under Sections 302/34 and Section 436 of the Indian Penal Code (hereinafter 'IPC') whereby for offence under Section 302/34 they were sentenced to life imprisonment with fine of Rs.10,000/- and in default of fine simple imprisonment of three months and for offence under Section 436 they were sentenced to 10 years of rigorous imprisonment with fine of Rs.5,000/- and in default of fine two months simple imprisonment. Both the sentences were ordered to be (Downloaded run concurrently.
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2. It is informed by the counsel for the appellants that appellant No.2-Sheodan Ram has expired on 13.05.2021. A death certificate in this regard is produced before this Court. Considering the same, the present appeal qua the appellant No.2-Sheodan Ram stands abated.
3. Succinctly stated, the case of the prosecution-respondent as per Written Report (Ex. P3) is as follows:
(i) That, the complainant Nanchi wife of the deceased Ashok is resident of Lamba Ki Dhani Tan Kurbada. At around 7-8 PM all of them after taking meals slept after locking door of the house. The complainant Nanchi, her daughter Ritu and sons Vikas and Deepak slept in one house and her husband/deceased Ashok as usual slept in 'kaccha' house near domestic animals.
(ii) At about 12.00 in night on 14.02.2010, suddenly, she woke up upon hearing noises of her husband due to suffocation and fight. She inquired as to who was there whereafter, she heard the voice of her father-in-law Sheodan, Jeth Jhabar and Dewar Shimbhu claiming to finish her husband Ashok. Then she tried to open the door but it was locked from the outside. Deceased Ashok screamed that he was being killed by them. Then those three persons shouted that they have not yet killed him but they will kill him soon.
(iii) Nanchi witnessed the same from the crack (darar) in door and she saw that the above referred persons were dragging her husband outside the house. Due to fear, she broke open the Jali fixed on the house and took her children to the near-by house of her neighbour Gyarsi Lal. (Downloaded on 25/12/2022 at 09:46:13 AM)
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(iv) From there, the police was informed on telephone that these persons after killing her husband, put him in the house and after sprinkling petrol put the house on fire, as a result of which her husband died inside the house due to burns and roof of the house was also broken on account of fire. It was also mentioned by her that there existed a dispute in connection with a plot, situated in Budoli and due to that the three accused-persons had enmity with her husband.
4. An FIR regarding the same was registered by Nanchi on 15.02.2010 at 00:07 a.m. at Police Station, Neem Ka Thana, District Sikar. That, after investigation, the police arrested three accused persons and challan was filed against all of them. The learned trial Court framed the charges against the accused- appellants but they denied the charges and pleaded not guilty. As many as 21 prosecution witnesses and 10 defence witnesses were examined along with many documents as exhibits.
5. After prolonged trial and hearing both the sides, the trial Court acquitted co-accused Jhabarmal from all the charges on the plea of alibi on the ground that at the time of commission of alleged offences he was at Faridkot and was therefore wrongly implicated. It is submitted by the appellants that the false implication of Jhabarmal clearly indicates that the entire prosecution story has collapsed but despite that Sheodan and Shimbhu were convicted and were sentenced. Hence, being aggrieved by the judgment dated 28.09.2013 the present appeal was filed. It is informed to the Court that no appeal has been filed by the complainant or State against the acquittal order of Jhabarmal and on 13.05.2021 one of the co-accused Sheodan has also died and as a result request for abatement of appeal was made.
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6. It is contended by learned Senior Advocate Shri A.K. Gupta appearing for the accused-appellants that the conviction of accused-appellants is against the facts and circumstances of the case, the material and evidences available on record and also the law applicable, hence the same is bad-in-law. In support of his contention he has submitted that though the police reached the spot at 2.30 AM on 14.02.2010 and Nanchi (PW-2) clearly indicated that she was fit for giving report, despite that the FIR was registered at a belated stage which is evident from Roznamcha entry 494 dated 15.02.2010 and Ex.D-9. It is also submitted that Gyarsi Lal was very important witness in the case as he was the first person who was approached by Nanchi and was also named in the FIR but he was not produced and a concocted story was made out by the prosecution and the FIR was registered after long lapse of time implicating the accused persons, therefore, the case of prosecution totally demolishes. It is also submitted that the FIR which was alleged to be registered on 15.02.2010 was received by Elaka Magistrate on 16.02.2010 and there was no justified reason given by the police/investigation authority as to why the report was not sent immediately. Further, SHO Gokul Singh (PW21) has also failed to give any explanation for the same. Hence, the counsel submits that the FIR is antedated and antetimed.
7. It was further submitted that Entry 470 of (Ex.P-62A) Nakal Report Roznamcha Aam (Majmun Report) clearly goes to show that the names of the accused persons have not been mentioned in the same. The report was registered in Roznamcha at 3.00 AM. Though Nanchi (PW2) says that police reached on spot at 2.00 to 2.30 AM. Thus, in these circumstances examination of Gyarsi Lal was vital to explain all these aspects of the case. In view of non- (Downloaded on 25/12/2022 at 09:46:13 AM)
(5 of 13) [CRLA-730/2013] examination of Gyarsi Lal, an adverse inference can be drawn against the prosecution under Section 114 illustration (g) of Indian Evidence Act.
8. Learned Senior counsel further argued that one of the co- accused Jhabarmal who was implicated as the main accused and was alleged to have given lathi blows was exonerated as upon hearing the parties and perusing the material the learned trial Court came to the conclusion that he was posted at Faridkot in BSF and was not present in the village at the time of commission of crime. The said acquittal has neither been appealed by the State nor by the complainant which reflects that the FIR was concocted and tutored story more so when at a belated stage Nanchi (PW2) on 13.02.2012 had filed another FIR under Section 447, 379 and 34 IPC against Hari Ram (PW3) and Krishna Ram (PW8) of torturing and misusing her. The same document was brought on record as Ex.D-10 by the appellants-defence and was supressed by the prosecution and not produced before the learned trial Court.
9. It is also submitted that the first FIR (Ex.P-56) is hit by Section 162 of Cr.P.C. as investigation was initiated before lodging of the FIR and Gokul Singh (PW21) has admitted in his statement that Ex.P2 and Ex.P5 to Ex.P19 were prepared before lodging of the FIR. Learned counsel has submitted that Nanchi (PW2) has made improvements, contradictions and omissions in her testimony and if critically examined, her statement is not corroborated by site plan, Post-mortem Report (Ex.P33) and further non production of Gyarsi Lal as a witness confirms the same.
10. As per the medical report and statements of Doctor Sunil Kumar Singh (PW19) and Doctor Ashok Lakwani (PW14) the (Downloaded on 25/12/2022 at 09:46:13 AM) (6 of 13) [CRLA-730/2013] injuries and fractures were caused after the death on account of burns. The evidence on record and statements of witnesses show that Nanchi (PW2) was not at all an eye witness and her own conduct of belated registering of FIR and filing of FIR against Hari Ram goes to strengthen the same. He has submitted that acquittal of Jhabarmal and non consideration of the fact that Sheodan was handicapped person and old aged and none of them were present in the village for last 8-9 months has been ignored, which was supported by statements of defence and even prosecution witnesses.
11. On grounds of aforementioned reasons and placing reliance upon judgments of various Courts in his written submissions learned Senior counsel has requested for setting aside of the conviction order dated 28.09.2013.
12. Per contra, learned Additional Government Advocate appearing for the State has opposed the appeal but has admitted the fact of non filing of appeal and acceptance of order qua Jhabarmal and the validity of death certificate of Sheodan. He has submitted that FIR is not an encyclopedia and non-mentioning of names of the accused persons in written report (Ex.P3) is of no significance. He further submits that on account of 100% burns the injuries were not rightly evaluated by medical evidence, there was an existence of motive to murder in the case which is duly supported by the FSL report and recovery of clothes. Relying upon statements of Nanchi (PW2) and the investigation supports the conviction order dated 28.09.2013 and submits that it does not call for any interference of this Court.
13. We have considered the contentions and have carefully perused the materials on record. At the outset, it is an admitted fact that Jhabarmal has been acquitted by the trial Court and no (Downloaded on 25/12/2022 at 09:46:13 AM) (7 of 13) [CRLA-730/2013] appeal against the same has been filed either by the State or by the complainant. Secondly, appeal qua Sheodan abates on account of his death on 13.05.2021. The present appeal survives only qua Shimbhu who is younger brother of the deceased Ashok and was working in Army at Sikanderabad. In the case in hand certain material facts need consideration.
14. At the very outset, there are major discrepancies in the case of the prosecution. As per the FIR, the time of lodging of the FIR is 00:07 am on 15.02.2010 and the time of offence is 14.02.2010 at 12 am. The entry on basis of which the FIR has been lodged is mentioned as 476. According to the defence exhibit D10 the roznamcha entry 476 is recorded after 6 am on 15.02.2010 which is the time of the preceeding Roznamcha entry 475. It is also the case of prosecution that the written report (Ex P3) was lodged on 15.02.2010 at 6 am. This goes to show that the lodging of FIR is prior to both the written report (Ex P3) as well as Roznamcha entry 476, both of which are the basis of the FIR. This clearly points to the FIR being ante-timed. According to the statement of Gokul Singh (PW21), the fact of entry no.494 in Roznamcha which was made on 15.02.2010 at 5:55 pm, wherein he accepts that till 5:55 pm, FIR was not registered. Thus, there seems to be an attempt by the investigating authorities to portray that FIR was lodged immediately without delay, when on basis of the above mentioned facts, there have been lapses in immediately recording the information pertaining to the offence despite receiving it.
15. The report of commission of cognizable offence was sent to Elaka Magistrate on 16.02.2010 at 10:40 am after considerable delay. There is no explanation as to why the report was not sent on 15.02.2010 even though it was a Monday. Section 157 of (Downloaded on 25/12/2022 at 09:46:13 AM) (8 of 13) [CRLA-730/2013] Cr.P.C. mandates the Officer Incharge of a police station to send report of commission of offence to Elaka Magistrate, forthwith.
16. It is also established, on perusal of the materials, that the investigation in the present case started before the registration of FIR which is revealed by statement of Gokul Singh (PW21) and statement of Doctor Sunil Kumar Singh (PW19) who conducted the Post-mortem (Ex.P33) on 15.02.2010 wherein it was reported that the request for it was made in early morning of 15.02.2010. It is apparent that prosecution suppressed the information that was sent first in time before registering of Ex.P62A and did not produce Mahendra Singh, SI, Ashok Kumar, Constable FC 416 and Gyarsi Lal as witnesses.
17. The material witnesses namely Gyarsi Lal, to whose house, as per written report (Ex.P3), Nanchi (PW2) went immediately after the offence had taken place and from where she informed the police on telephone of the commission of the offence, has not been produced. Also, Ashok Kumar FC 416 who took written report (Ex.P3) to Manohar Lal SI to further register the same on 15.02.2010, both were not produced as witnesses. Mahendra Singh SI who received the information, while on patrolling duty, on the date of the incident regarding death of deceased-Ashok Kumar was also not produced for examination. Had all these witnesses been examined, the story of telephonic communication, registration of Ex.P62A and further discrepancies in registration of FIR and other facts and circumstances of the case could have been explained. Therefore, in our opinion an adverse inference can be drawn against the prosecution on the grounds of non production of material witnesses as illustrated under Section 114, illustration (g) of the Indian Evidence Act.
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18. This Court also finds the conduct of Nanchi (PW2) doubtful on the following grounds:
(i) Nanchi (PW2) had stated that there was no electricity in the place of occurrence though investigating officer (PW
21) has stated that there was electricity, but no mention of electricity, pole or light is there in the site plan of the place of occurrence. She tried to implicate the accused persons based on voice identification when all three of them were speaking simultaneously at the same time as per written report (Ex.P3). This story cannot be believed especially when Jhabarmal, whose case is also based on same evidence, has been acquitted on plea of alibi. Hence, the entire story of the prosecution collapses as Jhabarmal was allegedly reported as the main accused.
(ii) Nanchi (PW2) cannot be believed to be an eye witness as firstly, neither the written report (Ex.P3) nor the FIR (Ex.P56) mentions of the same.
(iii) The material witnesses Gyarsi Lal, Ashok Kumar FC 416, Mahendra Singh SI, Manohar Lal SI have not been produced. Further, Mukesh S/o Hari Ram who had scribed the written report (Ex.P3) was also not examined.
iv) In the Court statement Nanchi (PW 2) has stated that she immediately went to Hari Ram (PW 3) for help and that he made the call to the police whereas in the written report (Ex P3) she has stated that she went to Gyarsi Lal and thereafter the call was made to the police.
v) (Ex.D9) shows that she went to the house of Hari Ram before submitting the written report (Ex.P3). She later on, on 13.02.2012 filed another FIR (Ex.D10) against Hari Ram and Krishna Ram stating that her husband died in an (Downloaded on 25/12/2022 at 09:46:13 AM) (10 of 13) [CRLA-730/2013] accident and she is a helpless and uneducated widow and Hari Ram and Krishna Ram taking advantage of this fact and due to rivalry with her father-in-law have misused her situation. The FIR (Exhibit D10) therefore clearly demolishes the case of the prosecution that her father-in-law alogwith two other co-accused persons murdered her husband and also makes the testimony of Nanchi (PW 2) unreliable.
19. Hariram who claims to be an eye witness to the incident is totally untrustworthy as Nanchi has deposed that Hariram simply called the police and did not went to the place of occurrence, whereas Hariram states that he went to the place of occurrence and witnessed the incident in the light and later in the flames, he has also named Jhabharmal, present appellant and Sheodan as the assailants. Jhabarmal's plea of alibi was accepted by the Courts thus statement of this witness also comes under cloud of suspicion, more particularly when Nanchi, wife of the deceased has not stated that Hariram went to the place of occurrence.
20. The medical report, evidences and statements of Doctor Ashok Lakwani (PW14) and Doctor Sunil Kumar Singh (PW19) goes to show that the story of Nanchi (PW2) that the accused persons gave beating by lathi to the deceased Ashok and then put the house on fire is incorrect and medically wrong as all the injuries and fractures were caused after the death on account of burns. Doctor Sunil Kumar Singh (PW19) has categorically submitted as under:
^^lj dk vfLr Hkax ,oe i ls j esa of.kZr vU; vfLr Hkax e`R;q gksus ds ckn ds gSaA**
21. Further, it has also come on record that the presence of accused persons has not been shown. The information of commission of offence given from the house of Gyarsi Lal has also not been brought on record. Further, Nanchi (PW2) in her cross (Downloaded on 25/12/2022 at 09:46:13 AM) (11 of 13) [CRLA-730/2013] examination stated that Jhabarmal had taken Sheodan and his kids to Faridkot 8-9 months prior to the commission of the offence. She has also stated in the cross examination that when police came to the house of Shimbhu and Jhabarmal, their house were locked. Hari Ram (PW3) has also stated that the appellants were not seen since past 8 to 9 months before the commission of the offence. The above fact is supported by the statements of Vikas (PW6), Surgayan (PW7), Kishna Ram (PW8), Ritu Lamba (PW10) and Gokul Singh (PW21). The arrest memo of Shimbhu and Sheodan goes to show that Shimbhu was arrested on 27.02.2010 from Sikanderabad and Sheodan was a handicapped person who was living with Jhabarmal. He was arrested on 05.03.2010 from Neem Ka Thana. These persons were not seen in the village since past 8-9 months prior to the commission of the offence or after the occurrence of the offence by any persons. Further, two attesting witnesses related to the arrest of Sheodan Singh were not produced and Manohar Lal SI who arrested him was also not produced.
22. The Court below has erred in coming to the conclusion that the deceased had illicit relationship with the wife of appellant and this is the reason that he along with his father and Jhabharmal committed the offence. In Anil Rai vs. State of Bihar: (2001) 7 SCC 318, the Apex Court held that the admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. Motive according to Section 8 of Indian Evidence Act is a relevant fact and may be used to cement the case of prosecution , but it cannot be a sole ground for conviction. Thus , the Court below has erred in drawing an inference of guilt on basis of motive alone.
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23. Therefore, considering the medical report that the fractures and injuries were caused after the death due to burns; FIR was lodged at a belated stage with improvements and consultations whereas, offence was committed on 14.02.2010 at 12.00 AM and investigation had begun before the registration of FIR, FIR loses its authenticity being hit by Section 162 CrPC; the report to Elaka Magistrate was sent on 16.02.2010 at 10.40 AM after great delay, which was not explained by the police officials, which is contrary to Sec. 157 of CrPC; the entries in Roznamcha Reports are mismatched; the non production of material witnesses by the prosecution leads to drawing of adverse inference against the prosecution; the fact that the information given first in time to the police officials and the lodging of FIR by Nanchi (PW2) against Hari Ram in 13.02.2012 has been suppressed and withheld by the prosecution; no recovery of any incriminating material was made from the appellant to show his presence in the place of occurrence, the presence of accused persons at the place of incident has not been shown which gains strength from the acquittal of main accused Jhabarmal; the testimony of Nanchi (PW2), who claims herself to be an eye-witness, falls on many grounds as aforementioned, this court is inclined to allow the present appeal.
24. Therefore, the present appeal is allowed. The judgment of conviction and sentence dated 28.09.2013 passed by Additional Sessions Judge, Neem Ka Thana, District Sikar in Session Case No. 14/2010 qua appellant No.1-Shimbhu Ram is set aside and he is acquitted of offences under Sections 302/34 and 436 of IPC.
25. Appellant No.1-Shimbhu Ram is in jail, he be released forthwith, if not required in any other case.
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26. Keeping in view, the provisions of Section 437A Cr.P.C., the accused-appellant No.1 is directed to forthwith furnish a personal bond in the sum of Rs.50,000/- and a surety bond in the like amount, before the 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 No.1, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
(SAMEER JAIN),J (PANKAJ BHANDARI),J
Arun/44
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