Rajasthan High Court - Jodhpur
Hari Ram And Ors vs State on 1 May, 2019
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
D.B. Criminal Appeal No. 130/1988
1. Hari Ram son of Uda Ram aged about 22 years.
2. Kishna son of Uda Ram aged about 20 years.
3. Mala Ram son of Uda Ram aged about 30 years.
All by caste Bishnoi, Resident of village Sankad, Tehsil
Sanchore, District Jalore.
----Appellants
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Pradeep Shah.
Mr. Ranjeet Singh.
For Respondent(s) : Mr. N.S. Bhati, Public Prosecutor.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
JUDGMENT
Date of Judgment: 01/05/2019
Judgment reserved on: 07/03/2019
(BY THE COURT: PER HON'BLE MEHTA, J.)
The instant appeal has come up for consideration of this Court in a very peculiar set of circumstances. The accused appellants herein and another set of accused namely Kishna Ram S/o Abbaji, Babulal S/o Kumbhaji, Karna Ram S/o Khinyaji and Dhuda Ram S/o Kumbhaji (since acquitted) were tried by the learned Sessions Judge, Jalore in Sessions Cases No.11/1987 and 15/1987 who, decided both the cases together by the Judgment dated 20.01.1988 and whilst, extending the benefit of doubt to the second set of accused viz. Kishna Ram S/o Abbaji, Babulal, (Downloaded on 28/06/2019 at 01:04:56 AM) (2 of 20) [CRLA-130/1988] Karna Ram and Dhuda Ram (Sessions Case No.15/1987), they were acquitted of the charges whereas, the accused appellants Hari Ram, Kishna and Mala Ram were convicted and sentenced as below:
Offences Sentences Fine Fine Default
sentences
Section Life Imprisonment Rs.100/ One Month's
302/34 IPC Rigorous
Imprisonment
The convicted accused preferred an Appeal No.130/1988 in this Court under Section 374(2) Cr.P.C. for assailing their conviction and the sentence awarded to them by the learned trial court whereas the State of Rajasthan approached this Court by filing Appeal No.266/1988 for challenging the acquittal of the accused Kishna, Babulal, Karna Ram, and Dhuda Ram recorded by the trial court by the very same judgment. Both the appeals were admitted way back in the year 1988 and the sentences awarded to the convicted accused were suspended.
The matters were listed on 02.01.2017, however, unfortunately, when the appeals were called out for hearing, the defence counsel appointed in the cases did not appear to argue the matters. Nevertheless, the Coordinate Bench of this Court before which, the case was listed, thought it fit to proceed with hearing of the appeals without; either notifying the accused or appointing any amicus curiae to represent them in both the matters. Accordingly, both the appeals were heard by this Court in absentia of defence counsel and were decided on the same day vide judgment dated 02.01.2017. The Court went on to dismiss both the appeals i.e. the appeal against conviction as well as the (Downloaded on 28/06/2019 at 01:04:56 AM) (3 of 20) [CRLA-130/1988] appeal against acquittal. As a consequence of the appeal No.130/1988 (against conviction) being dismissed, the convicted accused Hari Ram, Kishna son of Uda Ram and Mala Ram were taken into custody. They preferred a Special Leave Petition before the Hon'ble Supreme Court for assailing their conviction recorded by the trial court and affirmed by this Court vide Judgments dated 20.01.1988 and 02.01.2017 respectively. The petition came to be registered as Special Leave to Appeal (Criminal) No.481/2018. The matter was disposed of by Hon'ble the Supreme Court by order dated 09.02.2018 which is reproduced herein below for the sake of ready reference:-
"Upon hearing the counsel the Court made the following ORDER Heard.
Since it is stated that the High Court did not have the assistance of any amicus, we permit the petitioner to move the High Court upon which the High Court may consider the matter on merits.
The special leave petition is disposed of with the above observation.
Pending applications, if any, shall also stand disposed of."
In pursuance of this order, the accused appointed counsel Shri Pradeep Shah to represent them and the appeal No.130/1988 came to be listed by the registry in the hearing category. At this stage, it will be worthwhile to mention that the State of Rajasthan did not challenge the acquittal of the accused Kishna, Babulal, Karna Ram, and Dhuda Ram recorded by the trial court and affirmed by the Division Bench of this Court vide Judgment dated 02.01.2017 passed in Criminal Appeal No.266/1988 and thus, the acquittal of these accused has attained finality. (Downloaded on 28/06/2019 at 01:04:56 AM)
(4 of 20) [CRLA-130/1988] Learned Public Prosecutor Shri N.S. Bhati has raised a preliminary objection regarding the maintainability of the instant appeal and so also, about the jurisdiction of this Court to reconsider/ rehear the case on merits. He fervently urged that Hon'ble the Supreme Court, whilst deciding the Special Leave to Appeal, has not set aside the judgment dated 02.01.2017 passed by the Division Bench of this Court and that the Code of Criminal Procedure does not confer jurisdiction upon a criminal court to review its own Judgment and therefore, the appeal No.130/1988 ought not to have been restored to its original number and that this Court has no option but to reaffirm the judgment dated 02.01.2017 by formally marking the appearance of the defence counsel.
Per contra, learned counsel Shri Pradeep Shah representing the accused appellants, vehemently and fervently urged that the purport of the Hon'ble Supreme Court's order dated 09.02.2018 is writ large on the face of the record. As per him, since the accused appellants were not represented in the first round when their appeal against conviction was heard and decided without providing any legal assistance to them, manifestly, the judgment dated 02.01.2017 suffers from the vice of having been rendered in gross violation of the Principles of Natural Justice and so also being in contravention of the mandate of Articles 20 and 22 of the Constitution of India. He thus urged that the appeal requires to be reheard and decided afresh on merits.
We have considered the rival submissions on the preliminary objection raised by the learned Public Prosecutor and the learned defence counsel. We are of the firm view that the clear mandate of the Hon'ble Supreme Court's order dated 09.02.2018 passed in (Downloaded on 28/06/2019 at 01:04:56 AM) (5 of 20) [CRLA-130/1988] the Special Leave to Appeal (Criminal) No.481/2018 is that the appeal against conviction should be re-heard and decided afresh on merits. The words 'may consider' used by their Lordships in the order have to be construed as 'shall' considering the fact that the accused were not heard when their appeal against conviction was decided. The appeal was listed after a long time as on 02.01.2017. Since the counsel representing the accused did not appear to argue the appeals, it was imperative for the Court before which the case was listed to either notify the accused of the same or to appoint an amicus curiae on their behalf to argue the appeal. Since neither of these steps mandated by law were followed, the words 'may consider' referred to supra in the order dated 09.02.2018 passed by Hon'ble the Supreme Court have to be construed as 'shall'. Thus, the preliminary objection raised by the learned Public Prosecutor regarding maintainability of the instant appeal and the jurisdiction of the Court to rehear and decide the same afresh on merits is overruled. Having held so, we now proceed to consider the case on merits.
Brief facts relevant and essential for disposal of the appeal are noted hereinbelow:
The prosecution case originates from the written report (Ex.P/1) filed by Babulal (PW-1) to the SHO, Police Station Sanchore, District Jalore on 05.10.1986 at 10.00 am. alleging inter alia that the accused Karna Ram S/o Khinya Ram, Hari Ram S/o Udaram, Kishna S/o Udaram, Kishnaram S/o Abba, Dhuda S/o Kumbha, Babulal S/o Kumbha and Mala Ram S/o Udaram, residents of Sankad were out to forcibly grab the share of his father in the field named 'Aankadiya', which is situated in the outskirts of the village Sankad. These people had stolen Bajra crop (Downloaded on 28/06/2019 at 01:04:56 AM) (6 of 20) [CRLA-130/1988] of their uncle seven days ago of which, his father Shri Harchand was a witness. Proceedings under Section 107 Cr.P.C. had been registered against the accused in this regard. On the night preceding the incident, his mother Smt. Chouthi took dinner and went to the Aankadiya field for guarding the crops. The first informant and his brother Thakra Ram went to another field of their's called Panchkhadiya for guarding and other farming related jobs. In the middle of the night, they heard the fervent cries of their mother on which, they ran towards Aankadiya. They were having a torch with them which they switched on and saw that all the seven accused named above, were indiscriminately assaulting their mother with lathis. The informant and his brother raised a hue and cry on which, the accused made an aggressive move towards them as well. They became frightened and retraced their steps. Their mother was belaboured by lathis and thereafter, the accused Dhuda son of Kumbha and Karna Ram S/o Khinyaji exhorted loudly that she should be thrown in the well. The accused allegedly lifted the lady and threw her into the well in the field before the eyes of the first informant and his brother. The first informant and his brother ran towards their house raising cries for help. His uncles were not at home. He searched for them and told them of the incident and then came to the police station with Rama Ram to lodge the report. It was further alleged that the accused were intending to forcibly take away the Bajra crop from their field. Their mother resisted on which, the accused belaboured her with lathis, and threw her in the well. On the basis of this report, an FIR No.165/1986 was registered at the Police Station Sanchore for the offences under Sections 147, 149, 447, 323, 342 and 302 IPC and investigation was commenced. During (Downloaded on 28/06/2019 at 01:04:56 AM) (7 of 20) [CRLA-130/1988] the course of investigation, the accused Hari Ram, Kishna and Mala Ram were arrested and lathis were recovered in furtherance of the information provided by them to the I.O. under Section 27 of the Evidence Act.
After concluding the investigation, the police filed two separate charge-sheets. Initially the charge-sheet was filed against Kishna and Mala Ram. Thereafter, another charge-sheet came to be filed against Hari Ram. These three accused were charged for the offences mentioned above. They pleaded not guilty and claimed trial. Their trial was commenced. After evidence of four prosecution witnesses had been recorded, the Public Prosecutor filed an application under Section 319 Cr.P.C. whereafter, the four left out persons namely Kishnaram S/o Abba, Babulal, Karna Ram and Dhuda Ram were also summoned to face trial as additional accused alongwith the previously charge- sheeted accused. Charges were framed against the freshly summoned accused in the same terms. They too pleaded not guilty and claimed trial. The prosecution examined a total of six witnesses and exhibited 15 documents to prove its case.
Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations and claimed to have been falsely implicated. No oral evidence was led by the accused, however, 10 documents were exhibited in defence. Upon hearing and considering the submissions advanced by the prosecution and the defence and, after appreciating the evidence available on record, the trial court, proceeded to pass a common judgment dated 20.01.1988, convicting the accused appellants Hari Ram, Kishna and Mala Ram and acquitting the accused Kishnaram S/o Abba, Babulal, Karna Ram and Dhuda Ram of the charges. The (Downloaded on 28/06/2019 at 01:04:56 AM) (8 of 20) [CRLA-130/1988] sequence of events that transpired subsequently has already been narrated herein above.
Shri Pradeep Shah, learned counsel representing the appellants, vehemently and fervently urged that the entire prosecution case is false and fabricated. The deceased Smt. Chouthi fell into the well accidentally while she was trying to draw water during the night. He referred to the Site Inspection Memo (Ex.P/3) and the Site Inspection Plan (Ex.P/6) and urged that the footwear of the deceased and an earthen pitcher full of water were seen lying near the well when the I.O. conducted the site inspection. He urged that if at all, the accused had killed Smt. Chouthi at a different location and carried the deadbody and threw the same in the well, the footwear (jutis) of Chouthi would not have been found systematically arranged near the well. He urged that the villagers inculcate a habit of taking their footwear off when they draw water from a well as a mark of respect towards the water body. He fervently submitted that there was an engine installed inside the well and all the injuries noticed by the Medical Jurist PW-6) on the deadbody of Smt. Chouthi were caused by falling on the engine and by collision with the profusions in the well. As per Shri Shah, if at all, had there been any truth in the allegation of the prosecution eye witnesses that the deceased was first killed by the accused by inflicting lathi blows and the deadbody was then lifted and thrown into the well, manifestly and without doubt, the doctor conducting the postmortem would have noticed postmortem wounds on the deadbody and it is quite impossible to believe that all the wounds found on the body of the deceased would be ante-mortem in nature. He further contended that the factum of enmity existing inter-se between the parties is (Downloaded on 28/06/2019 at 01:04:56 AM) (9 of 20) [CRLA-130/1988] unequivocally attributed to all the seven accused named in the FIR as well as in the evidence of the prosecution witnesses and that no distinction can be drawn on the ground that only the sons of Udaram were having strained relations with the family of the deceased. He contended that there is a specific allegation in the FIR that after all the accused had assaulted the deceased by lathis, the accused Dhuda exhorted that the woman should be thrown in the well. He submitted that it is the consistent version of Babulal (PW-1) and Thakra Ram (PW-2), the only two prosecution eye witnesses, that they saw all the seven accused inflicting indiscriminate blows to their mother with the lathis held by them. Thereafter, Karna Ram and Dhuda Ram shouted that the woman had passed away and the deadbody should be thrown in the well. He urged that Karna Ram and Dhuda Ram who were pertinently named in the evidence of the witnesses, were not charge-sheeted by the investigating officer; they were acquitted by the trial court and the appeal against their acquittal stands rejected by the Judgment dated 02.01.2017 and hence, as per him, there being no apparent distinction in the prosecution allegations against all the seven accused named in the FIR and the statements of the eye-witnesses, the conviction of the accused appellants cannot be sustained as there is no material to segregate their case from that of the acquitted accused. He further submitted that the evidence of the prosecution eye-witnesses is full of embellishments and exaggerations. As per him, had there been an iota of truth in the statements of the prosecution witnesses that as many as seven accused assaulted the deceased Smt. Chouthi by lathis and that the body was thereafter thrown into the well in which, a motor pump was installed, then, not only the number of injuries would (Downloaded on 28/06/2019 at 01:04:56 AM) (10 of 20) [CRLA-130/1988] have been greater but, postmortem wounds were bound to show owing to collision of the deadbody with the engine and other protruding objects. In this regard, Shri Shah drew the Court's attention to the statement of the Medical Jurist Dr. Mohan Lal Doshi (PW-6) who categorically stated in his examination-in-chief that the comminuted fractures noticed on the skull of the deceased could not have been caused by lathi blows and that these injuries could certainly result if the deceased woman was thrown or fell into a well. He also referred to the cross- examination conducted from the doctor wherein, he admitted that the fractures noticed by him while conducting postmortem upon the deadbody of Chauthi Devi were all in the nature of crush wounds and could be caused by fall on blunt object from a height. He urged that as the two prosecution eye witnesses gave unequivocal evidence that the deceased was first murdered by multiple blows of lathis and thereafter, her deadbody was thrown into the well, manifestly, their evidence is totally contradicted by the medical evidence and thus, the eye-witnesses account becomes totally unreliable. He drew the Court's attention to the document (Ex.D/10) which is the opinion sought by the I.O. from the Medical Officer during investigation and urged that the investigating officer was carrying a grave doubt in his mind regarding the truthfulness of the eye witnesses account of the alleged assault and thus, he took a pertinent opinion from the doctor about the nature of the injuries noticed on the deadbody of Chouthi in order to resolve the issue as to whether the injuries were caused by the lathi blows or that the same were caused by her falling into the well. Shri Shah further urged that the statements of the first informant Babulal (PW-1) and Thakra Ram (Downloaded on 28/06/2019 at 01:04:56 AM) (11 of 20) [CRLA-130/1988] (PW-2) are full of contradictions and infirmities. He further submitted that the grounds of distinction sought to be drawn by the prosecution inter-se between the acquitted accused and the convicted accused are virtually non-existent because the witness Babulal (PW-1) categorically stated in his examination-in-chief that all the accused wanted to snatch their two agricultural fields namely Panchkhadiya and Ankadiya and with this objective, they murdered Smt. Chouthi. The witness also stated that his uncle Rama Ram lodged proceedings under Section 107 Cr.P.C. against Hari Ram, Karna Ram, Kishna, Mala Ram and Udaram and thus, as per Shri Shah, the grounds assigned by the trial court for accepting the evidence of the eye-witnesses qua the convicted accused (appellants herein) and for discarding the same qua the acquitted accused are virtually non-existent and purely conjectural. He further submitted that the incident took place in the middle of the night. The distance of the police station from the place of the incident is merely 25 kms. and thus, significant delay in lodging of the FIR which was presented to the SHO, Police Station Sanchore at 10.00 am. on the next morning is totally unexplained and creates a great deal of doubt on the veracity of the prosecution case. He drew the Court's attention to the cross- examination conducted from PW-1 Babulal wherein, he admitted that his father (Harchand) was immediately informed of the incident but, he did not react and casually continued to guard the crops. None of the family members cried in grief during the night and that nobody went back to the field to try and check the well where the lady had been thrown. He urged that this admission reflects totally unnatural conduct of the eye witnesses who, despite claiming to be aware that their mother had been thrown (Downloaded on 28/06/2019 at 01:04:56 AM) (12 of 20) [CRLA-130/1988] by the accused in the well, made no efforts whatsoever to collect their relatives and make an attempt of saving her of at least to ascertain her fate. He urged that the witnesses could not have known with any degree of certainty that Smt. Chouthi had really passed away and thus, in the expectation of natural human behaviour, had the sons witnessed the incident, they would definitely have made efforts to save their mother deceased or at least to retrieve the deadbody from the well. The witness Babulal stated that the distance between the Aakadiya and Panchkhadiya fields is 100 paavandas (which would work out to 500 ft.). In the site inspection plan (Ex.P/6), the Panchkhadiya field is nowhere to be seen. Therefore, there is a serious doubt as to whether the witnesses could have heard and identified the cries allegedly made by their mother from this significant distance. He thus contended that the evidence of the eye-witnesses is unreliable. Their conduct post the incident bellies their claim that they had seen the assault with their own eyes. As per Shri Shah, when the deceased did not return in the morning, a search must have been made and the deadbody was seen lying in the well. Thereafter, owing to the prior enmity between the parties, a concocted theory of assault by lathis was cooked up and the accused were roped into the case. As per Shri Shah, a simple case of accidental death by fall in the well in the darkness, has been given a colour of murder for wreaking vengeance against the accused appellants owing to prior enmity. He further submitted that the evidence of the eye-witnesses is absolutely contradicted by the medical evidence as deposed by the Medical Jurist (PW-6) and the attending circumstances as available on record, which completely destroys the credibility of the eye- witnesses' account and thus, as per him, the accused appellants (Downloaded on 28/06/2019 at 01:04:56 AM) (13 of 20) [CRLA-130/1988] are entitled to be acquitted by extending them the benefit of doubt. He thus implored the Court to accept the appeal and set aside the impugned Judgment.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Shah. He urged that the eye-witnesses had no occasion to falsely implicate accused appellants for the murder of their own mother. He contended that the fact that the parties were having inimical relations is writ large on the face of the record because the complainant party had registered proceedings under Section 107 Cr.P.C. against the accused just a few days before the incident. He urged that the accused were having an evil eye on the lands of the complainant party and had indulged in offensive activities previously as well for which, the proceedings under Section 107 Cr.P.C. had been instituted. Thus, as per him, the accused had a strong motive to murder the complainant's family members. He further urged that the evidence of the eye-witnesses is thoroughly corroborated by the surrounding circumstances i.e. the medical evidence and the evidence of motive and hence, as per him, no interference is called for in the well reasoned judgment rendered by the trial court.
We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record.
The prosecution case revolves around the testimony of the two eye witnesses, PW-1 Babulal and PW-2 Thakra Ram. Both the witnesses, stated in one breath that after having dinner on 04.10.1986, their mother went to the Aakadiya field for guarding the same. The brothers went to the Panchkhadiya field for (Downloaded on 28/06/2019 at 01:04:56 AM) (14 of 20) [CRLA-130/1988] guarding it. In middle of the night, they heard their mother crying in the Aakadiya field on which, both of them ran there. Both of them were having torches with them. They reached the Aakadiya field and were at some distance from the place from where, their mother's cries were emanating. They lit the torches and saw the accused Hari Ram, Kishna and Mala Ram sons of Uda Ram, Dhuda Ram and Babulal sons of Kumbhaji, Karna Ram son of Khinyaji and Kishna Ram son of Abbaji assaulting their mother and raining indiscriminate blows of lathi upon her at a distance of 10 paavandas from the well constructed in the field. The witnesses further stated that all the accused want to snatch their fields. No discerning factor is available in the entire statements of these two witnesses by which, the role assigned to the accused can be distinguished. In all probability, the deceased did not return from the field in the morning on which, a search must have been conducted.
Now, we proceed to discuss the medical evidence so as to discern as to whether the deceased was actually killed by lathi blows. The Medical Jurist Dr. Mohan Lal Doshi (PW-6) categorically stated in his examination-in-chief that he noticed seven external injuries on the body of the deceased of which, the abrasions and the bruises could be caused by lathis but the comminuted fractures noticed on the skull and other body parts of the deceased could not be the result of lathi blows. The doctor stated that if the deceased had been thrown in the well after assaulting her, the comminuted fractures and the other fractures could be caused. As per the postmortem report (Ex.P/5), the following comminuted fractures were found on the body of the deceased: (Downloaded on 28/06/2019 at 01:04:56 AM)
(15 of 20) [CRLA-130/1988] "(1) comminuted fracture of scalp and skull involving left frontal, parietal, temporal, occipital and maxoid bones. (2) comminuted fracture of left tibia and fibula at lower ends. (3) comminuted fracture of right ulna in the middle region (4) comminuted fracture of right radius and ulna in elbow joint. (5) dislocation of head of right bone.
(6) comminuted fracture of head of humerus at left shoulder joint (7) fracture of left clavicle at both ends present (steinal & shoulder join ends) (8) comminuted fracture of left humerus bone in the middle region."
Manifestly thus, all the significant injuries noticed by Dr. Mohan Lal Doshi on the deadbody of Smt. Chouthi were caused by the fall into the well.
If the testimony of the eye-witnesses is believed, the accused were seven in number and they had the lady at their mercy. However, despite that, not a single one of the fatal injuries caused to the deceased appears to be the result of a lathi blow. This again creates a strong doubt in the mind of the Court that as a matter of fact, the theory put-forth by the prosecution witnesses regarding the accused having rained indiscriminate blows by the lathis on Smt. Chouthi is totally false and fabricated. No blood stains or other significant marks of violence were noticed anywhere in the field where the deceased was allegedly assaulted. The I.O. Ranjeet Singh (PW-5) admitted in his cross-examination that he could not pin-point or locate the exact place where the deceased was assaulted by the accused. If the two eye-witnesses had indeed given a truthful account of the incident, they definitely would have been able to pin-point and identify the spot where the assault was made and where they were standing. As per the site inspection memo, the footwear of the deceased (jutis) were seen (Downloaded on 28/06/2019 at 01:04:56 AM) (16 of 20) [CRLA-130/1988] lying arranged near the parapet of the well. An engine for drawing water was installed therein. Thus, in all probability, it appears that the deceased must have tried to draw water in the darkness of the night and must have lost her footing and fell in the well. Resultantly, she received various injuries due to impact of collision with the engine installed in the well and the other protruding objects. When the lady did not return home in the morning, family members must have made a search and would have seen the deadbody lying inside the well in the day light.
There was no possibility that the prosecution witnesses would be dead sure that Smt. Chauthi had actually died after being thrown into the well. As per the eye-witnesses, they told their father Shri Harchand of the incident in the night time itself but, he did not react. No one in the family expressed their grief on the loss of a near one in the night. In this background, the total lack of interest /rank indifference of the family members in trying to make an effort to go to the well and to search for signs of life in the deceased, again brings the testimony of the prosecution eye- witnesses under a severe cloud of doubt and thus, it can be safely concluded that the witnesses did not actually see the assault in the night time and came to know that the body of Chouthi was lying in the well only in the morning when she did not return and a search was made. The place of incident is 25 kms. away from the police station. Yet the FIR was lodged as late as at 10 am. on the next morning. There is yet another circumstance which creates a doubt on the truthfulness of the eye-witnesses account. The I.O. Ranjeet Singh (PW-5) admitted that the complainant came to the Police Station in the morning for lodging the FIR and was accompanied by a lawyer named Ganga Ram. Thus, clearly, the (Downloaded on 28/06/2019 at 01:04:56 AM) (17 of 20) [CRLA-130/1988] lawyer must have been consulted and the report came to be lodged by falsely implicating the seven accused with whom the complainant party is at inimical terms.
We are also of the view that as evidence of these two prosecution eye-witnesses Babulal (PW-1) and Thakra Ram (PW-2) has been disbelieved by the trial court as well as by this Court while acquitting the accused Kishna, Babulal, Karna Ram, and Dhuda Ram and as the acquittal of these accused has attained finality with the dismissal of the appeal against acquittal No.266/1988, it would be totally unsafe for us to place reliance on the testimony of such unreliable eye witnesses who have indulged in whole scale over-implication and uphold conviction of the accused appellants Hari Ram, Kishna and Mala Ram.
Since the above discussion was drawn on the strength of motive, we propose to deal with the prosecution case regarding the motive attributed to the accused for committing the offence. While dealing with the cases of the convicted accused and the acquitted accused, the trial court drew a distinction holding that only the sons of Uda Ram were inimical to the complainant party and that they exclusively were having an evil eye over the lands of the complainant party. In this context, it would be fruitful to reproduce in vernacular, the relevant allegations set out in the FIR and the statements of the two eye-witnesses Babulal (PW-1) and Thakra Ram (PW-2):-
FIR:
"eqyfteku djuk iq= f[ka;k] gfjjke iq= mnk] fdluk iq= mnk] fd'kukjke iq= vCck] /kqM+k iq= dqaHkk] ckcq iq= daqHkk o eyk iq= mnk dkSe fc"uksbZ lkfdu lkadM+ esjs firk dh ikafr dk [ksr ukeh vkadfM+;k** tks lkadM+ dh lhao esa vk;k gqvk gSA tcju Nhuuk pkgrs gSaA bu yksxks us lkr jkst iwoZ esjs dkdk dh cktjh dh Qly dh pksjh dh fd ftlds eqdnesa esa esjs firk Hkh xokg FksA eqyfteku ls ge lc dks (Downloaded on 28/06/2019 at 01:04:56 AM) (18 of 20) [CRLA-130/1988] lifjokj iwjk [krjk Fkk rFkk geus buds f[kykQ /kkjk 107 vkbZ-ih-lh- dh dk;Zokgh Hkh dj j[kh FkhA"
State of Babulal (PW-1) "vfHk;qDrx.k gekjk [ksr iap[kkMh;k o vkdMh;k nksuksa [ksr fNuuk pkgrs ftldh otg ls esjh eka dh gR;k dhA bl ?kVuk ls nks efgus iwoZ eqyfteku fd"kuk] djuk] gjhjke o eyk us esjs dkdk lksuk o jk.kk dh ekjihV dh Fkh ftldk eqdnek Hkh esjs dkdk us fd;k FkkA jkuk us eqyfteku gjhjke] djuk] dh"ku] eyk o mnk vkfn ds f[kykQ 107 dh dk;Zokgh ?kVuk ls 7 fnu igys dh Fkh o eqyfteku us ?kVuk ls igys iap[kkMh;k [ksr ls gekjh cks;h gqbZ cktjh dkVdj pqjk;h Fkh ftldk Hkh eqdnek muds fo:) fd;k gqvk gSA ftlesa xokg esjs firk gSA "
Statement of Thakra Ram (PW-2) "eqyfteku gekjs ls [ksrksa ds caVokM+s ds ckjs esa vnkorh djrs gS o esjs dkdk lksuk o jkek gekjs lkfey jgrs gS mudk [ksr Hkh tcju ysuk pkgrs gS bl jaft"k ds dkj.k esjh eka dks ekjkA"
Harchand, being the husband of the deceased Smt. Chouthi, Udaram, Sonaram and Rama Ram were real brothers. Sonaram and Rama Ram were unmarried and used to reside with Harchand whereas Udaram was living separately. All brothers owned a significant chunk of joint agricultural land. The eye witnesses emphatically stated in their evidence that all the seven accused had an evil eye on the shares of Sonaram and Rama Ram from the joint holding. Sona Ram was not examined in evidence. Rama Ram, in his testimony, did not allege that any of the accused were bearing inimical terms with him or with Sona Ram. He claimed that the accused Hari Ram, Kishna and Mala Ram had beaten him two months earlier for which, he had lodged a criminal case. However, no corresponding document was proved on record by the prosecution to substantiate this allegation. These significant circumstances create a strong suspicion in the mind of the Court that Babulal (PW-1) and Thakra Ram (PW-2), as a matter of fact, did not see the incident. While drawing distinction between the acquitted accused and the appellants herein, the learned trial court held that the acquitted accused were never charge-sheeted, (Downloaded on 28/06/2019 at 01:04:56 AM) (19 of 20) [CRLA-130/1988] the allegations against them were omnibus, the land dispute existed only between the convicted accused and the complainant party and therefore, the possibility of their having been falsely implicated in the case could not be completely ruled out. However, as we have discussed above, the prosecution witnesses have unanimously and in unequivocal terms, attributed the enmity and motive to all the seven accused uniformly. The role assigned to each accused in the assault is also identical and thus, there is no material on the basis whereof, the Court can segregate the case of the convicted accused from that of the acquitted accused. Since the acquittal of the co-accused Kishna, Babulal, Karna Ram, and Dhuda Ram has attained finality, manifestly, the appellants too deserve the same treatment on parity.
It is true that the concept of "Falsus in uno, falsus in omnibus" is not applicable in the Indian scenario and the Courts are required to separate the grain from the chaff. However, having appreciated and evaluated the entire material available on record, we feel that it would not be possible to segregate the case of the convicted accused from that of the acquitted accused. In addition to the above and at the cost of repetition, it is reiterated that the evidence of the prosecution eye-witnesses suffers from material infirmities and embellishments and, is totally contradicted by the medical evidence. Our view is fortified from the following observations made by Hon'ble the Supreme Court in the case of Kripal Singh vs. State of Rajasthan, reported in AIR 2019 SC 947:
"... Where it is not feasible to separate 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 essential details presented by the prosecution completely from the context and the (Downloaded on 28/06/2019 at 01:04:56 AM) (20 of 20) [CRLA-130/1988] background against which they are made, the only available course to be made is to discard the evidence in toto..."
For the reasons aforestated and the discussion made herein above, we are of the view that it would be totally unsafe to uphold the conviction of the appellants as recorded by the trial court and they deserve to be acquitted by extending the benefit of doubt.
Accordingly, the appeal deserves to be and is hereby allowed. The impugned judgment dated 20.01.1988 passed by the Sessions Judge, Jalore in Sessions Case No.11/1987 and Sessions Case No.15/1987 (so far as appellant Hari Ram is concerned) is hereby quashed and set aside. The appellants Hari Ram S/o Uda Ram, Kishna S/o Uda Ram and Mala Ram S/o Uda Ram are acquitted of the charges. The appellants are in custody and shall be released from prison forthwith if not wanted in any other case.
However, keeping in view the provisions of Section 437-A Cr.P.C., each of the accused appellants is directed to furnish a personal bond in the sum of Rs.15,000/- 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 a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
1-Tikam/
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