Rajasthan High Court - Jaipur
Mool Chand And Ors. vs State Of Rajasthan on 18 March, 2005
Equivalent citations: RLW2005(2)RAJ1183, 2005(3)WLC164
JUDGMENT F.C. Bansal, J.
1. The instant appeal is directed against the Judgment dated 24.3.2001 passed by the learned Additional Sessions Judge, Neem-Ka-Thana, District Sikar whereby accused appellants Mool Chand, Phool Chand, Munga Ram, Narayan and Shrawan Kumar have been convicted for the offences under Sections 304 Part-1/149 and 148 IPC and sentenced to suffer S.I. for seven years and a fine of Rs. 10,000/-, in default to further suffer S.I. for ten months and to suffer S.I for one year and a fine of Rs. 1,000/-, in default to further suffer S.I. for one month each respectively.
2. Both the substantive sentences were Ordered to run concurrently.
3. Briefly stated the prosecution case is that on 29.06.99 at about 11.00 p.m. accused appellants Mungaram, Moolchand, Narayan, Phoolchand and Shrawan assaulted Kailash S/o Geegaram, by caste Saini, R/o-Dhani Bhatali, Village Chokdi and caused injuries on his person resulting in his death instantaneously. The incident is alleged to have taken place in the said Dhani in front of the house of Banwari S/o Dholuram and near the tree shown in Site Plan Ex.P2. Having caused the death of Kailash his dead body was put in the chowk (courtyard) of his house by the appellants. PW1 Smt. Jamna, PW2 Smt. Aanchi, PW4 Moolchand, PW6 Subhash, PW7 Tarachand and PW8 Vasudev had seen the occurrence and because of the threatening given by the appellants then did not intervene to rescue the deceased. Next morning the matter was reported to the police by PW6 Subhash who is brother of the deceased at 10.20 a.m. In his written report Ex.P4 it was also alleged by PW6 Subhash that Raju and Kishan Lal had also assaulted the deceased. It was further stated that on account of enmity the accused appellants had caused the death of his brother Kailash. On the basis of the written report Ex.P4, formal, FIR Ex.15 was registered and investigation commenced. Post-mortem on the dead body of the deceased was conducted by the Medical Board consisting of PW11 Dr. B.P. Agarwal, Post-mortem Report is Ex.P22. In the opinion of the medical board the cause of death was haemorrhagic shock due to injury to right lung. On completion of investigation a charge-sheet was filed against the accused appellants in the competent Court. Charge against Raju and Kishanlal were found false and groundless and, therefore, charge- sheet was not filed against them. The learned Magistrate committed the case to the Court of the learned Additional Sessions Judge, Neem-Ka-Thana who framed charges under Sections 148 and 302/149 IPC against the appellants. The accused- appellants pleaded not guilty and claimed trial. To prove the charges the prosecution examined as many as 16 witnesses. In their examination under Section 313 Cr.P.C. the accused appellants pleaded innocence. In defence DW1 Bhagoti W/o Banwari and DW2 Banshi were examined.
4. The learned trial Judge on hearing the final submissions made by both the parties, convicted and sentenced the accused appellants as indicated here-in-above.
5. I have heard the learned counsel for the accused appellants, learned Public Prosecutor for the State and have also perused the impugned Judgment as also the evidence on record.
6. There is no dispute that the deceased met with homicidal death and this fact is established by the medical evidence on record. PW11 Dr. B.P. Agarwal stated that on 10.06.1999 he was posted as Medical Jurist, Government Hospital, Khandela and on the request of P.S. Khandela he along with two other members of the Medical Board conducted post-mortem examination of deceased Kailash S/o Geegaram, aged 35 years, by caste-Saini, R/o-Dhani Bhatta-Ki-Tan Chokdi and found the following injuries on the dead body:-
EXTERNAL INJURIES (1) Abrasion with clotted blood, 0.5 x 2. x skin deep, right cheek. (2) Abrasion with clotted blood 2 x 2cm. x skin, deep, left elbow dorsal. (3) Abrasion with clotted blood 1 x 0.2 x skin deep, left leg. (4) Abrasion with clotted blood 1 x 0.2 x skin deep, left thigh. (5) Abrasion with clotted blood 0,7 x 0.2 x skin deep, right leg. (6) Swelling with abrasion and contusion 3 x 3cm., right leg. (7) Swelling with contusion 8 x 6cm., left upper arm, blood infiltrated to muscles. (8) Bruise ill defined 12 x 12cm. on back in both scapular region extended up to lower & upper region of scapula. Blood infiltrated to subcutaneous & muscle on dissection.
EXTERNAL INJURIES Brain-Normal Walls, Ribs and Cartilages-Normal, multiple bruise present on back-On dissection there Was infiltration of blood up to muscular level..
Pleurae-Normal, fracture of 5th, 6th, 7th and 8th rib right side Tear 8 x 5 cm. on right side. 200 ml blood present on thoracic cavity Right Lung-A laceration 3.5 x 2.5 cm on the posterior aspect of right lung corresponding to the fractured rib.
7. Dr. Agarwal either stated that all the injuries were ante- mortem in nature and were sufficient in the ordinary course of nature to cause death In the opinion of the Medical Board, the cause of death was haemorrhagic shock due to injury to right lung. The post-mortem report Ex P22 was prepared and signed by the members of the Medical Board.
8. Learned counsel appearing for the accused-appellants contended that the learned Trial Court did not at all meticulously scan and scrutinize the evidence on record and has committed a manifest error in coming to the finding of the guilt of the appellants. AH the alleged eye-witnesses are related to me deceased. PW4 Moolchand, PW6 Subhash and PW8 Vasudev are real brothers of the deceased. PW2 Aanchi is the mother of the deceased. PW1 Jamna W/o PW4 Moolchand and PW7 Tarachand S/o Moolchand are Bhabhi and nephew of the deceased respectively. Being highly interested witnesses and in absence of corroboration by the independent witnesses, their testimony is not credible and on close and careful scrutiny it is clear that they had not witnessed the incident. Learned counsel further submitted that the place the incident has been changed as it was not stated in written report Ex.P4 that the incident took place near the tree and in front of the house of Banwari but in their deposition these witnesses have stated that the deceased was assaulted by the appellants near the tree (show in Site Plan Ex.P2) and in front of the house belonging to Banwari. It was alleged in the written report Ex.p4 that on last night at about 11.00 p.m. the appellants accompanied by Raju and Kishanlal assaulted the deceased Kailash and caused his death. When informant Subhash and his mother went to the spot they were threatened and, therefore, they came back at their house. The dead body of the deceased is lying at the spot. It was not stated in Ex.P4 that the deceased was dragged from his house and taken to a nearby tree and assaulted by the appellants. Thereafter his dead body was brought to his house by the appellants and put in the chowk (courtyard). It was also submitted by the learned counsel that all the eye- witnesses are near relations of the deceased. They were six in number but they did not make efforts to rescue the deceased. Their unnatural conduct creates suspicion in the veracity of their testimony. It was also submitted by the learned counsel that in written report Ex.P4 Raju and Kishanlal were also named as the assailants but they were not chargesheeted by the police. Even in her statement PW2 Aanchi (mother of the deceased and also named as eye-witness in the written report Ex.P4) has stated that Deva, Surja and Raju also had assaulted the deceased. It would be pertinent to mention here that Deva and Surja were not named as assailants in the written report Ex,P4. In his deposition PW6 Subhash has stated that Kishan and Raju also had assaulted the deceased Kailash. PW7 Tarachand and PW8 Vasudev have named Raju as one of the assailants. These facts prove that some innocent persons also have falsely been implicated in the case. All the alleged eye-witnesses have not assigned specific act to any of the appellants. On post-mortem examination only eight injuries caused by the blunt Weapon were found, out of which five were abrasions, one was bruise and at two place there was swelling. In the written report Ex.P4 seven accused were alleged to have caused injuries with lathies on the person of the deceased. Number of injuries also prove that some innocent persons have been implicated falsely in the case. Learned counsel further submitted that in the instant case it is not feasible to separate the truth from falsehood to come to the conclusion that who are the innocent and who are the real culprit. In such a situation all the appellants are entitled to acquittal.
9. Learned Public Prosecutor appearing for the State as well as learned counsel for the complainant has supported the impugned Judgment.
10. I have considered the rival submissions and have also gone through the entire prosecution evidence as also the defence evidence.
11. As stated above, all the alleged eye-witnesses are related to the deceased and, therefore, their testimony has to be critically analysed with caution to come to a conclusion whether the same is credible and cogent. PWl Jamna, PW2 Aanchi, PW4 Moolchand, PW6 Subhash, PW7 Tarachand and PW8 Vasudev have deposed before the Trial Court that on the fateful night they were sleeping at their respective houses. Having taken meals at the house of his father, the deceased went to his house. They further stated that at about 11.00 p.m. all the appellants came to the house of the deceased, pulled him out of the house and took him to a nearby tree and thereafter assaulted him with lathies. On hearing outcry of deceased Kailash they came out of their houses and saw the appellants causing injuries with lathies to Kailash. While they were proceeding towards the place of occurrence the appellants threatened and forced them to enter their houses. PW4 Moolchand has stated that the appellants pushed them into their houses and did not allow to intervene. It has also been stated by some of these witnesses that Kailash died on the spot and his dead body was taken to his house and put in the chowk by the appellants. As the appellants, armed with lathies were patrolling around their houses till morning, they (the witnesses) did not go to the house of the deceased. As per their testimony these witnesses went to the house of the deceased in the morning and found him dead and thereafter written report Ex.P4 was lodged by PW6 Subhash at 10.20 a.m. at P.S. Khandela.
12. PW6 Subhash, who claims himself to be the eye-witness of the occurrence, is the real brother of the deceased. Written report Ex.P4 was not lodged promptly but it was submitted next day at 10.20a.m., 11-1/2 hours after the incident. PW1 Jamna is the Bhabhi, PW4 Moolchand and PW8 Vasudev are the real brothers of PW6 Subhash and the deceased and PW7 Tarachand is the son of PW4 Moolchand but Jamna, Moolchand, Tarachand and Vasudev were not named as eye-witnesses in the written report Ex.P4. The prosecution has not assigned any reason as to why the names of these witnesses do not find place in Ex.P4. As per the prosecution case, five appellants had caused the death of Kailash. They were not armed with deadly weapons but were having lathies. The alleged eye-witnesses were six in number out of which four were males. They are closely related to the deceased. Every male member of the family residing in a village keeps lathi at his house. These alleged eye-witnesses did not make efforts to save the deceased. Even they did not go to the house of the deceased after his dead body was allegedly taken from the place of occurrence and put in the chowk of the deceased's house by the appellants till next morning. These facts show their unnatural conduct which creates doubt in the veracity of their statements. That apart, as per the prosecution case put before the Trial Court, five appellants had caused injuries with lathies on the person of the deceased. In the written report Ex.P4 all the five appellants and Raju and Kishanlal were alleged to have caused injuries to the deceased which resulted in his death instantaneously on the spot. As stated above, in her statement PW2 Aanchi, who was named as eye-witness in Ex.P4, has stated that seven assailants including four appellants had caused injuries. on the person of Kaiash. She has named Deva, Surja and Raju assailants in her statement. She has not named appellant Narayan as one of the assailants. As per the testimony of PW4 Moolchand, Raju had also assaulted the deceased. PW6 Subhash has deposed that Kishan and Raju also had caused the death of Kailash. PW8 Vasudev has named Raju as one of the assailants. At the time of the post-mortem examination, only eight simple external injuries were found on the dead body of Kailash. The cause of death was haemorrhagic shock due to injury to right lung. In view of the number of injuries and contradictory statements of the alleged eye-witnesses regarding number of assailants, 1 have come to the conclusion that some innocent persons have falsely been implicated in this case. This fact also creates doubt about the truthfulness of the testimony of the alleged eye-witnesses. It was not stated in the written report Ex.P4 that the incident took place near the tree and in front of the house of Banwari. It was also not mentioned in it that the dead body of Kailash was taken to his house and put in the chowk by the appellants. But as per the testimony of the alleged eye- witnesses, on the fateful night the appellants came to the house of deceased Kailash and forcibly took him to a nearby tree and caused him injuries which resulted in his death on the spot and thereafter the appellants took the dead body and put it in the chowk of the deceased's house. Why the accused who were armed with lathies did not assault the deceased at the house itself still remains a mystery and why the dead body was taken from the alleged place of occurrence to the house of the deceased by the appellants also remains mystery. When the Investigating Officer visited the spot he did not find blood and any other symptom of the occurrence on the alleged place of occurrence. Even in the chowk no blood was found by the I.O. As per the statement of PW14, Ramsingh, I.O., when he visited the house of the deceased he found his dead body in the chowk. PW7 Tarachand has stated before the Trial Court that the dead body of Kailash was taken by the appellants from the place of occurrence and put it in one of the rooms of the deceased's house. He has further stated that there was blood inside the room. The testimony of Tarachand proves that the dead body of Kailash was shifted to the chowk from the room. From this fact it appears that the incident took place inside the room of the deceased's house and not outside the house, near the tree and in front of the house of Banwari.
13. On close and careful scrutiny of the testimony of the alleged eye-witnesses, I have come to the conclusion that they did not see the incident which in my opinion, took place inside the room of the deceased's house. Apart from that, the incident took place at night in the 'Dhani' (small village) where other independent witnesses also are residing but none of them has been examined as eye-witness by the prosecution. As per the prosecution case the deceased alone was residing in his house. In my considered view, the aforementioned alleged eye-witnesses found Kailash dead in his house in the morning. As per the testimony of PW1 Jamna, prior to this incident there was enmity between the family of these witnesses and the family of five appellants, out of which four are real brothers. Looking to the previous enmity between the parties, possibility of false implication cannot be Ruled out.
14. It is true that there are as many as six witnesses who are alleged to have seen the occurrence and they have given a parrot- like version of the entire case regarding the assault on the deceased by the appellants. No specific act has been assigned to any of the appellants by any of these alleged eye-witnesses. Even Raju and Kishanlal who were not chargesheeted by the police were named as assailants in the FIR (written report Ex.P4). PW2 Aanchi has stated before the Trial Court that Deva, Surja and Raju also had caused injuries to Kailash. PW4 Moolchand has named Raju and PW6 Subhash has named Raju and Kishanlal as assailants in addition to the five appellants- A perusal of the evidence of the prosecution witnesses would show that the prosecution case against the appellants and Raju, Kishanlal, Deva and Surja is so inextricably mixed up that it is not possible to sever one from the other. It is true that the Court must make an attempt to separate the grain from the chaff, the truth-from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where it is not feasible to separate the truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. In the present case it is impossible to separate the grain from the chaff to come to the conclusion as to who is the real culprit and who has been falsely implicated in this case. As stated above, only eight external injuries which were simple in nature were found on the dead body of Kailash on post-mortern examination. As per the ocular evidence of the prosecution all the five appellants assaulted the deceased with lathies indiscriminately which resulted in his death instantaneously on the spot. Looking to the number of injuries and appellants, false implication of some of the appellants cannot be Ruled out. Out of five appellants one or two appellants may be the real culprit but as stated above, it is not possible to separate the grain from the chaff for coming to the conclusion as to who is the real. culprit. In these circumstances, the benefit of doubt must go to all the appellants and they are entitled to be acquitted from the charges for which they have been convicted and sentenced by the Trial Court.
15. For the aforesaid reasons, the appeal of accused-appellants Mool Chand, Phool Chand, Munga Ram, Narayan and Shrawan Kumar is allowed. While setting-aside the impugned Judgment dated 24.3.2001 passed by the learned Additional Sessions Judge, Neem- Ka-Thana, District Sikar, all the appellants are acquitted of the charges under Sections 148 and 304 Part-I/149 IPC. They are in jail. They shall be released forthwith, if not wanted in any other case.