Rajasthan High Court - Jodhpur
Mohan Lal vs State on 20 December, 2018
Equivalent citations: AIRONLINE 2018 RAJ 1305
Author: Sandeep Mehta
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 178/2018
1. Mohan Lal S/o Shri Aja Gamar, aged about 60 years
2. Hindura S/o Shri Rawata, aged about 40 years
3. Babu Lal S/o Aja Gamar, aged about 48 years
4. Modiya @ Moti S/o Shri Mohan Gamar, aged about 35 years
All R/o Bhuza, Police Station Mandwa, Tehsil Kotra, District
Udaipur.
----Appellants
Versus
State, Through PP
----Respondent
For Petitioner(s) : Mr. Deepak Menaria
For Respondent(s) : Mr.J.P.S. Choudhary, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
JUDGMENT
Per Hon'ble Mr.Sandeep Mehta, J.
DATE OF PRONOUNCEMENT: 20/12/2018 The instant criminal appeal under Section 374(2) Cr.P.C. has been preferred by the appellants-convict (1) Mohan Lal, (2) Hindura, (3) Babu Lal & (4) Modiya @ Moti being aggrieved of the judgment dated 18.08.2018 passed by learned Addl. Sessions Judge (Woman Atrocities Cases), Udaipur in Sessions Case No.56/2015 whereby the appellants were convicted and sentenced as below:-
(2 of 10) Section 147 IPC 1 Year S.I. with a fine of Rs.2000/-, in default of payment of fine to further undergo 2 months' SI.
Section 148 IPC 2 Years S.I. with a fine of Rs.3000/-, in default of payment of fine to further undergo 3 months' SI.
Section 452 IPC 5 Years S.I. with a fine of Rs.5000/-, in default of payment of fine to further undergo 6 months' SI.
Sec.323 R/W Sec.149 6 Months' S.I. with a fine of Rs.500/-, in default of payment of fine to further undergo 1 month's SI.
Sec.324 R/W Sec.149 IPC 2 Years' S.I. with a fine of Rs.3000/-, in default of payment of fine to further undergo 3 months' SI.
Sec.302R/W Sec.149 IPC Imprisonment of Life with a fine of Rs.50,000/-, in default of payment of fine to further undergo 2 years' SI.
(All the sentences were ordered to run concurrently) For assailing the conviction of the appellants and berating the impugned judgment to be perverse and grossly illegal, learned counsel Shri Deepak Menaria vehemently and fervently urged that there is no evidence worth the name on the record of the case so as to connect the appellants with the crime. The FIR (Exhibit-P/3) was lodged by the complainant Mujib Khan S/o Shri Rais Khan at the Police Station Kotda, District Udaipur on 26.03.2009 alleging inter alia that on 25.03.2009, a person named Naniya expired (3 of 10) because of an accident with a tractor. Owing to this incident, about 100-150 people of village Booza collected together at Gandhi Ground with the intention of collecting Motana (a tradition in the Aadiwasi communities to seek monetary compensation in lieu of death of one of their own). At about 11 O' Clock, (1) Kalu S/o Shri Laliya by caste Gamar, (2) Maka S/o Shri Hasiya by caste Gamar, (3) Shantilal S/o Laliya by caste Gamar, (4) Bhamaru S/o Shri Natha by caste Gamar, (5) Kehra S/o Shri Laliya by caste Gamar, (6) Sohan S/o Shri Laliya, by caste Gamar, (7) Lasiya S/o Shri Hasiya by caste Gamar, (8) Mashru S/o Shri Gopira by caste Gamar, (9) Ajit S/o Shri Mohana by caste Gamar, (10) Bhura S/o Shri Amiya by caste Gamar (11) Otaram Master By caste Gamar and four other male assailants and one woman (whom the complainant did not know) having knifes, swords, axes, bows and arrows, lathis, stones etc in their hands reached at the complainant's house. The complainant, his father Shri Rais Khan, mother Sayra Bano, Sohrab Khan, sister Rubnia Bano were present in the house. The accused secured entry into the house of the complainant by feigning that they wanted to get the woman treated. They surrounded the complainant's father Rais Khan from all sides. The accused Kalu inflicted a knife blow on his father's abdomen. Bhamaru inflicted an axe blow on the left hand of his father. Maka inflicted a sword blow on his left hand. Otaram inflicted lathi blow on his face. The first informant and Sohrab Khan started raising hue and cry for getting help. His mother Sayra Bano and sister Rubina intervened to save Shri Rais Khan but they too received injuries. The first informant Mujib Khan immediately took his father to the Police Station from there, he was taken to Hospital in the Police jeep. After primary treatment, (4 of 10) his father was taken to Gujarat for further treatment but he expired near Khed Brahma.
Shri Menaria submits that none of the appellants herein was named in the FIR (Exhibit-P/4) but the police filed charge sheet only against these appellants leaving out 11 assailants named in the FIR i.e., (1) Kalu S/o Shri Laliya, (2) Maka S/o Shri Hansiya, (3) Shanti S/o Shri Laliya, (4) Bhamaru S/io Shri Natha, (5) Kehra S/o Shri Laliya, (6) Sohan S/o Shri Lalilya, (7) Lasiya S/o Shri Hansiya (8) Masharu S/o Shri Gopira, (9) Ajit S/o Shri Mohna, (10) Bhura S/o Shri Amiya & (11) Otaram in the FIR whereas investigation was kept pending against a woman named Hangu under Section 173(8) Cr.P.C.
Drawing the Court's attention to the statement of star material prosecution witnesses viz. PW-2 (the first informant) Mujib Khan, learned Counsel Shri Menaria urged that the said witness, even in his examination in chief did not specifically name the appellants as the assailants but simply identified them as being the persons who allegedly assaulted his father. He drew the Court's attention to the cross examination conducted from this witness where upon being confronted with the FIR (Exhibit-P/3), the witness admitted that no accused other than those named by him in the FIR assaulted his father. He also drew the Court's attention to the concluding lines of the cross examination of this witness wherein he admitted that the actual assailants were Kalu, Maka, Shanti, Bhamaru, Kehra, Sohan, Lasiya, Masharu, Ajit, Bhura and Otaram Master whom the police did not arrest.
(5 of 10) He also drew the court's attention to the statement of the eye-witness PW-6 Ms. Rubina who did not name and identify any of the appellants and did not allege that the appellants were the assailants who inflicted injuries to her father.
He also took us through the statement of eye-witness PW-7 Sayra Bano who, in her examination in chief did not name the appellants as the assailants but simply stated that she later on came to know that the assailants were Mohan, Babu and Motiya etc and also identified them in the Court. He drew the Court's attention to the cross-examination conducted from this witness wherein she admitted that Mujib Khan drafted the FIR on her instructions and that she could not explain as to how the eleven accused were named by him in the FIR. He also drew Court's attention to the concluding lines of cross examination of this witness wherein she admitted that she did not know as to who had assaulted her husband.
He also referred to the statement of last remaining eye-witness namely Aslam Khan/PW-8 who being a child witness did not name and identify any of the assailants.
Shri Menaria submitted that the accused appellants were arrested on 29.11.2009 vide arrest memos Ex-P/22, Ex-P/23, Ex-P/24 & Ex-P/25 without there being any evidence whatsoever so as to connect them with the offences alleged. For the first time, Shri Dilawar Khan & Shri Sherdil Khan who were examined by the IO as late as on 06.09.2011 i.e., nearly after six months from the incident named the appellants alleging that they made an extra-
(6 of 10) judicial confession in their presence. Shri Menaria urged that these witnesses i.e., Shri Dilwar Khan/PW-15 & Shri Sherdil Khan/PW-16 did not identify the accused appellants when they were examined at the trial and were declared hostile by the prosecutor. Shri Menaria further urged that the recoveries which were made at the instance of the appellants are totally false and fabricated. He contended that neither did the prosecution lead any evidence to show that the weapons of offence allegedly recovered at the instance of accused were kept in the self same condition right from the time of the recovery till they were received by the FSL, nor does the FSL report indicate that these weapons were having blood group matching with the blood group of the deceased. Rather as per Shri Menaria, the FSL report (which was not even exhibited) mentions that the tests carried out on the recovered articles and weapons proved inconclusive. Thus, as per Shri Menaria, there is not even a shred of evidence on the record of the case so as to connect the appellants with the crime and the judgment passed by the learned trial court convicting and sentencing the appellants is perverse on the face of record. He craves acceptance of the appeal and urges the Court to acquit the appellants from the charges.
Learned Public Prosecutor on the other hand, vehemently and fervently opposed the submissions advanced by the appellants' Counsel. However, he too is not in a position to dispute the fact that the appellants were not named in the FIR. He further does not dispute that though PW-2 Mujib Khan identified the accused appellants during his sworn testimony (inspite of the fact that he did not name them in the FIR) but the fact remains (7 of 10) that the investigating officer never made any attempt to subject them to test identification at the hands of the prosecution witnesses after the accused were arrested in this case.
It may be stated here that the appellants were not named either in the FIR or in the statements of eye-witnesses Shri Mujib Khan, Sayra Bano & Ms. Rubina recorded during investigation under Section 161 Cr.P.C. It is indeed a big question mark on the conduct of the investigating officer as to how he managed to pin-point and arrest the accused appellants in this case even though they were not named by any witness.
Even assuming for a moment for the sake of argument, it, that the investigating officer had some information so to connect the accused with the crime then too, it was imperative for him to keep the accused baparda after their arrest and subject them to test identification at the hands of the eye-witnesses Mujib Khan, Sayra Bano and Ms. Rubina. In our firm opinion, the trial court seems to have bypassed and ignored the basic concepts of appreciation of evidence in an absolutely cavalier manner while placing reliance upon the statements of the eye-witnesses and the hostile witnesses PW-15 Dilwar Khan and PW-16 Sherdil Khan so as to hold the appellants guilty as above.
We are of the firm opinion that the witnesses Dilawar Khan and Sherdil Khan were created and cooked up by the IO and their statements under Section 161 Cr.P.C. were recorded as late as six months from the incident to somehow or the other create evidence against the accused appellants so as to justify their (8 of 10) indictment in the case at hand. Manifestly, since these witnesses did not support the prosecution story at the trial and were declared hostile in toto, the story as deposed by them to the IO during investigation could not have been relied upon or referred to by the trial court as a piece of incriminating evidence against the accused appellants. Otherwise also, these witnesses, in their investigational statements gave evidence of extra-judicial confession against the accused appellants. The evidence of extra-judicial confession that too allegedly blurted out by the accused before the witnesses after more than six months of the incident would have to be considered an absolutely flimsy piece of evidence. Even assuming for a moment that these witnesses had supported the prosecution story then too, by no stretch of imagination could the trial court have relied upon their testimony so as to convict the appellants. Their evidence would have to be discarded as being totally unreliable for any purpose whatsoever.
As stated above, the three eye-witnesses viz. Mujib Khan, Sayra Bano and Ms. Rubina did not name the accused appellants in their investigational statements. No identification parade was held to get the accused identified by these witnesses during investigation. Even in the Court, these eye-witnesses gave vacillating & wavering evidence when they were questioned on the aspect of identification of the accused during cross examination. Thus, the statements of these three eye-witnesses do not provide even a semblance of reliable evidence so as to connect the accused appellants with the crime.
(9 of 10) The other two circumstances which the trial court relied upon for convicting the accused appellants were that of recovery of the weapons of offence and alleged pointing out of the place of occurrence in furtherance of the information provided by the accused to the IO under Section 27 of Evidence Act. Needless to say that the circumstance of verification of place of occurrence could not have been read in evidence because it was a fact already known to the IO and could not have been re-discovered. Admittedly, the IO had visited the place of occurrence a number of occasions before the accused were arrested and thus, there was nothing for the IO to discover in the form of the place of occurrence and pointing out of the place of occurrence at the instance of the accused losses significance and cannot be treated to be a piece of admissible evidence so as to connect them with the alleged crime. From a threadbare perusal of the record, it is clear that original FSL report was never placed on record by the prosecutor nor was same put to the accused in their statements recorded under Section 313 Cr.P.C. There is available a photostat copy of the FSL report dated 31.12.2009 which was placed on record by the SHO PS Kotda as late as on 13.08.2018. However, manifestly, copy of this report was never provided to the accused. Furthermore, the chemical examiner opined in the report that the blood groups of the stains on the exhibits could not be determined and the results remained inconclusive. Thus, the recovery of the weapons allegedly made at the instance of the accused becomes inconsequential.
In view of the discussion made hereinabove, we are of the firm opinion that the conviction of the appellants as recorded by (10 of 10) the trial court by the impugned judgment dated 18.08.2018 (which is perverse and arbitrary on the face of it) cannot be sustained and the same is liable to be struck down. Accordingly, the appeal deserves acceptance and is hereby allowed. The impugned judgment dated 18.08.2018 passed by learned Addl. Sessions Judge (Women Atrocities Cases) Udaipur in Sessions Case No.56/2015 (CIS No.1345/2015) is hereby quashed and set aside. The appellants are acquitted of the charges. They are in custody and shall be set at liberty forthwith, if not required in any other case.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
Sudhir Asopa
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