Rajasthan High Court - Jaipur
Dhirap Singh And Ors vs State on 20 March, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN 1. D.B. Criminal Appeal No.1032/2003 Parmal Singh Vs. The State of Rajasthan through Public Prosecutor 2. D.B. Criminal Appeal No.1380/2003 Dhirap Singh, Sagar Singh, Takhat Singh Vs. The State of Rajasthan through Public Prosecutor 3. D.B. Criminal Jail Appeal No.1381/2003 Gendalal, Sagar Singh, Takhat Singh, Dhirap Singh and Parmal Singh Vs. The State of Rajasthan through Public Prosecutor Date of Judgment ::: 20.03.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mr. Justice Jainendra Kumar Ranka Shri Biri Singh Sinsinwar, Senior Advocate, with Shri Rajesh Choudhary and Shri Dhruv Atrey, for accused-appellants Shri Javed Choudhary, Public Prosecutor #### //Reportable// By the Court:-
These three criminal appeals, which includes criminal jail appeal on behalf of the accused-appellants, are directed against judgment and order dated 11.07.2003 of learned Additional Sessions Judge (Fast Track) No.4, Jhalawar, Camp Aklera, in Sessions Case No.25/2003, whereby all accused-appellants were convicted for offence under Sections 148, 364 and 302/149 of the Indian Penal Code but accused-appellant Dhirap Singh was acquitted of the offence under Section 3/25 of the Indian Arms Act. All the accused-appellants have been sentenced for offence under Section 302/149 of the IPC to undergo life imprisonment with fine of Rs.1,000/- each and, in default of payment of fine, each was to further undergo one year rigorous imprisonment. For offence under Section 148 IPC, all accused-appellants have been sentenced to undergo six months rigorous imprisonment with fine of Rs.500/- and, in default of payment of fine, each was to further undergo three months rigorous imprisonment. For offence under Section 364 IPC, they have been sentenced to undergo three years rigorous imprisonment with fine of Rs.500/- and in default of payment of fine, each to further undergo six months rigorous imprisonment each. All the aforesaid three sentences were ordered to run concurrently. Appellants are in jail for last about eleven years and five months.
Factual matrix of the case giving rise to these appeals is that a written report (Exhibit P-1) was lodged by one Raghunath with Police Station Manohar Thana, District Jhalawar, at around 9.30 AM, alleging therein that at 5-6 AM that day, somebody came to his house and called his son Bhura outside. When Bhura went out of the house, Gendalal hit him with stone as a result of which Bhura fell down. Thereafter accused Dhirap, Sagar, Takhat Singh, Genda and Parmal bodily lifted Bhura and took him away. They were all armed with 'palsia' and 'kulhari'. They took Bhura to an agriculture field. They put heavy stone on his one hand and one leg and amputated them both. Bhura died due to excessive bleeding. The police on receipt of aforesaid written report, registered a regular First Information Report No.195/2001 for offence under Sections 147, 148, 149, 364 and 302 IPC. After investigation, charge-sheet against the accused was filed for those offences. Charges against all the accused-appellants for said offences were framed. Additional charge for offence under Section 3/25 of the Arms Act was also framed against accused Dhirap Singh. All the accused denied the charges and claimed to be tried.
Prosecution, in support of its case, produced as many as 19 witnesses and exhibited 34 documents. Defence, in support of its case, produced six witnesses and exhibited two documents. Learned trial court on conclusion of the trial and after hearing arguments of both the sides, convicted and sentenced the accused-appellants in the manner indicated above, though acquitted accused-appellant Dhirap Singh for offence under Section 3/25 of the Arms Act. Hence these appeals.
Shri Biri Singh Sinsinwar, learned Senior Advocate, appearing for the appellants, argued that the alleged guilt of the accused-appellants has not been proved by the prosecution evidence beyond reasonable doubt. The burden was on the prosecution to prove the guilt of accused-appellants by standard of proof beyond reasonable doubt, whereas accused have to prove their defence merely by preponderance of probabilities. Learned Senior Advocate has referred to the statement of Raghunath (PW-1), Ajab Bai (PW-7), Mohar Bai (PW-8), Hajra Bai (PW-9) and argued that only offence that is proved by their testimony is one under Section 364 IPC. Testimony of these witnesses does not inspire confidence to the extent of their statement that accused-appellants had amputated one hand and one leg of deceased and he died thereby. It is argued that Raghunath (PW-1), besides being father of deceased Bhura, is also father of accused-appellant Dhirap Singh, Sagar Singh and Takhat Singh and father-in-law of accused-appellant Parmal. Deceased Bhura was a man of bad character inasmuch as he was a history-sheeter of Police Station Manohar Thana. Gopichand (PW-15), the Investigating Officer, in his statement, has categorically stated that he was 'A' class history sheeter of his police station and that number of criminal cases of theft/dacoity were registered against him in Police Station, Manohar Thana and also at Guna in the State of Madhya Pradesh. His name was a terror in the area and he had enmity with several people. Learned Senior Advocate submitted that this statement of the Investigating Officer is sufficient to prove the fact that Bhura could have been murdered by any one because he had strained relations with large number of persons and had so many enemies. The evidence has come on record that Bhura and Jagdish (PW-19) were sitting outside the house of former. About 8-10 persons took away Bhura on account of previous enmity and amputated his hand and leg but the appellants have been falsely implicated on account of previous enmity.
Shri Biri Singh Sinsinwwar, learned Senior Advocate referred to statement of Raghunath (PW-1) and submitted that this witness alleged that Bhura was kidnapped by all accused-appellants, who took him to an agriculture field of Bhanwarji and by placing heavy stones on his hand and leg, and amputated his right hand and leg. The distance of the place of incident from their house was approximately 200 meters. Accused were armed with 'palsia' and 'kulhari', but then this witness, in examination-in-chief, also stated that he did not see any accused inflicting blows on the hand and leg of the deceased but he heard deceased Bhura crying. When these people were beating Bhura they did not go further to save him for the fear for their own lives. He has also stated in the cross-examination that they made hue and cry, and that the villagers heard the same but none of the villagers came forward to give any evidence. This witness also stated that Jagdish had seen the incident which took place between 12Hrs and 1Hrs in mid night. This witness also stated in the cross-examination that it was a dark night but there was a lantern burning in their house. In cross-examination, this witness stated that he did not see the accused amputating the hand and leg of deceased Bhura and only saw them dragging him from his house. He went to the Police Station for registering the case the following morning. He stated that report was written by the Head Constable posted in the police outpost in their village. No such Head Constable of the police station has been produced in the witness box.
Shri Biri Singh, learned Senior Advocate argued that statement of Ajab Bai (PW-7), mother of deceased also cannot be believed in so far as the allegation of amputation of hand and leg of the deceased by accused-appellants is concerned. She has stated that Bhura was abducted by the accused-appellants, who were armed with gun, sward, 'palsia', 'gandasi'. Accused took Bhura to the agriculture field of Devilal and amputated his one hand and one leg, which could not be recovered. The incident took place during the night and it was a very dark night. This witness stated that accused Parmal used to maltreat their daughter Hajra Bai (PW-9) therefore she was residing with them. She further stated that the accused used to allege that deceased Bhura was keeping Hajra Bai as his mistress. Such suggestion was denied by her but she (PW-9) in the cross-examination stated that she did not see accused beating Bhura. This witness stated that she watched the incident of beating from a Neem tree situated approximately 50 feet away. This witness in the cross-examination stated that she saw accused-appellants beating Bhura and her husband also witnessed such beating, whereas Raghunath (PW-1) denied to have seen the beating. Ajab Bai (PW-7) in cross-examination alleged that it was accused-appellants Takhat Singh and Gendalal, who amputated the hand and leg of the deceased, which cannot be believed because there is no other witness to support this. Mohar Bai has although similarly alleged that accused-appellants abducted Bhura from their house. Accused were armed with sword, 'kulhari' and gun. Mohar Bai (PW-8) is wife of deceased. She alleged that they took him to the agriculture field of Bhanwarlal and then amputated his hand and leg which could not be recovered. She saw the incident from Neem tree which is situated 50 feet away from the place of incident. Gendalal had hit his leg by heavy stone. Accused were annoyed with the deceased because he committed theft in village Amasar. This witness has contrarily stated to what has been stated by Raghunath (PW-1), that it was moonlit night that day and that her father-in-law, mother-in-law and sister-in-law and she watched the incident from the same place. Gendalal first of all hit the deceased with a stone and when deceased resisted, Gendalal amputated his hand and leg by use of 'kulhari'. Hajrabai (PW-9), sister of deceased, also is a witness of the incident of abduction and falsely stated that accused-appellants amputated his hand and leg and the agriculture field of Devilal. She also exaggerated when she states that she watched the incident from close distance of 15 feet. She has also falsely stated that Gendalal and Takhat Singh amputated the hand and leg and other three accused caught hold of the deceased. When confronted with her statement under Section 161 Cr.P.C. (Exhibit D-2), she denied having stated that the incident took place at mid night. She stated that though it was a dark night but it was the time of dawn. There was movement of the villagers on the public path. This witness however exaggerated when she stated that right hand of his brother was amputated by accused-appellant Dhirap Singh and Takhat Singh and his right leg was amputated by Takhat Singh and Gendalal. Learned Senior Advocate argued that only independent eye witness is Jagdish (PW-19), who has not supported the prosecution case and has been declared hostile. Mohanlal (PW-6) and Babulal (PW-16) were motbir witnesses to the recovery of 'gandasi' vide Exhibit P-9, at the instance of accused-appellant Dhirap Singh, have turned hostile. Recovery of gun was also shown at the instance of Dhirap Singh vide Exhibit P-11 and recovery of 'gandasi' was shown at the instance of accused Sagar Singh vide Exhibit P-10. Recovery of 'kulhari' was shown vide Exhibit P-13 at the instance of accused Takhat Singh. However, no recovery was shown at the instance of accused-appellant Parmal.
Shri Biri Singh, learned Senior Advocate argued that even if it is accepted that one hand and one leg of the deceased were amputated by the accused-appellants, their amputation was not the cause of his death. In this connection, learned Senior Advocate referred to the postmortem-report (Exhibit P-17) and also the statement of Dr.Ram Niwas Meena (PW-14) and argued that neither the postmortem report nor statement of this witness has proved the fact that Bhura died as a result of aforesaid injuries. In fact, the postmortem report does not prove the fact that injuries sustained by deceased were sufficient in the ordinary course of nature to cause his death. The cause of death as given in the postmortem report was hematoma after hemorrhagic shock, due to loss of blood from the injuries of left forearm and right leg and manner of death is syncope, which means unconsciousness resulting from insufficient blood flow to the brain. This proves that had timely treatment been provided to Bhura Singh, his life could have been saved. This fact has been admitted by Dr.Ram Niwas Meena (PW-14) that deceased died because his large vessels was cut, but if timely treatment was provided, his life could have been saved. It was argued that at the maximum, it can be taken that the accused wanted to teach him a lesson. Injuries were not on the vital part of the body of deceased, which is sufficient to gather that accused did not have any intention to murder the deceased. Learned Senior Advocate therefore argued that the offence cannot in any manner travel beyond the scope of Section 304-I of the I.P.C., and the conviction therefore should be altered from Section 302 IPC to one under Section 304-I IPC and considering that appellants are behind bars for last more than eleven years, sentence may be awarded for the period already undergone by them. In support of this argument, learned Senior Advocate has placed reliance on the judgments of the Supreme Court in Subran @ Subramanian and Others vs State Of Kerala (1993) 3 SCC 32 and Rattan Singh Vs. State of Punjab 1988 (Supp) SCC 456. Learned Senior Advocate, in support of his arguments, has also relied on the judgments of the Supreme Court in Narayan Manikrao Salgar Vs. State of Maharashtra JT 2012 (8) SC 363, Somon Vs. State of Kerala JT 2008 (11) SC 579 and of this court in Fateh Singh and Another Vs. State of Rajasthan 1989 (2) Crimes 249.
Shri Biri Singh, learned Senior Advocate further argued that there was a police outpost in village Maharajpura where the incident took place. Yet it is claimed that the written report was given by Raghunath (PW-1) when the Station House Officer came to the Police Station at 9.30 AM on 10.10.2004. In this connection, learned Senior Advocate invited attention of the court towards copy of 'rojnamcha' (Exhibit P-17), and argued that according to the entry made therein, information about the incident was received by wireless in the police station at 7.40 am from Kanhaiyalal, Head Constable posted at Maharajpura police outpost. This fact has been admitted by Investigating Officer Gopichand (PW-15), that the police outpost is situated about two kilometers away from the place of incident. This was the information received earliest in point of time but nevertheless police did not register the first information report on that basis. The police also did not record the statement of Kanhaiyalal, Head Constable, posted at the police outpost. He was not produced as a witness in the court. Informant Raghunath (PW-1) has stated that he went to the police outpost at Maharajpura at the dawn and gave the written report but this is not found true in view of the aforesaid. Statement of informant is rather disputed by Gopichand (PW-15), who has stated that neither any report was received in the police outpost nor any police employee brought the report, whereas Raghunath (PW-1) in his cross-examination stated that the report (Exhibit P-1) was written by the Constable of the police outpost. The first information report registered subsequently would be hit by Section 162 of the Cr.P.C. Learned Senior Advocate therefore argued that the written report (Exhibit P-1) has to be simply treated as the statement of informant recorded under Section 161 Cr.P.C. because investigation had already started on receiving the oral information.
Shri Biri Singh Sinsinwar, learned Senior Advocate, argued that it was a case of blind murder in which the prosecution has completely suppressed the genesis of incident. There is no explanation why Kanhaiyalal, the Head Constable posted at the Maharajpura police outpost, was not produced because he alone could have proved whether Exhibit P-16 was the same report, which Raghunath (PW-1) gave to him. Kanhaiyalal, Head Constable No.349, who accompanied Raghunath (PW-1) from the Police Station to the place of incident, was a different Kanhaiyalal and not the Head Constable posted at the police outpost of Maharajpura. It was argued that there are lot of contradictions in the statements of Raghunath (PW-1), Ajab Bai (PW-7), Mohar Bai (PW-8), Hajra Bai (PW-9). While in the written report it is alleged that somebody called deceased Bhura outside the house but in his court statement, informant Raghunath (PW-1) has stated that accused abducted Bhura after putting a clothe around his neck. No one was named as eye witness in the first information report whereas subsequently several persons have been cited as eye-witnesses. Lot of improvements have been made in their court statements by these witnesses. Bhagwan and Jagdish could only be the two independent witnesses. While Bhagwan has not been produced and Jagdish (PW-19) has turned hostile. Even this witness is speaking truth that the incident took place in the mid night which is corroborated from the statement of Dhuli Lal (DW-1) and Isar Lal (DW-2) that the incident took place at 12 hrs in the mid night. Raghunath (PW-1) has also stated that the incident took place between 12 hrs and 1 hrs in the mid night. He also admitted presence of Jagdish (PW-19). Raghunath (PW-1) in his statement has to be believed because he has not been declared hostile by the prosecution. His statement probabilized the version of the defence that all these witnesses are not the eye-witnesses.
Shri Biri Singh Sinsinwar, learned Senior Advocate argued that Raghunath (PW-1), Ajab Bai (PW-7), Mohar Bai (PW-8), Hajra Bai (PW-9), are close relatives of the deceased and therefore their testimony ought not to be relied unless finds corroboration from the independent source. If at all the accused-appellants had the intention to murder Bhura, nothing prevented them to hit him on vital part or use the firearm because witnesses alleged that accused Dhirap Singh was having a gun. Allegation that accused Gendalal hit the deceased Bhura with stone is falsified from the fact that no such injury was found on his body. Allegation of these witnesses that all accused were armed with sharp edged weapons, cannot be believed becaused deceased had blunt injuries? Learned Senior Advocate citing judgment of the Supreme Court in Bhim Singh Vs. State of Haryana AIR 2003 SC 693 and argued that if a prosecution witness (PW-1 Raghunath in this case) is not declared hostile, then his statement is to be believed. The prosecution has not been able to discredit the testimony of Dhuli Lal (DW-1) and Isar Lal (DW-2) in the cross-examination and therefore they will have to be believed. Lastly, it was argued that learned trial court itself has not believed the statement of all the eye-witnesses including Devilal (PW-4) in respect of their version that they were eye-witnesses. Learned trial court recorded this finding in the light of the site plan (Exhibit P-3) and has observed that there was distance of 130 meters between two. House of Bhura is situated at the height of 25 feet. The incident has taken place in the night but despite claim by the witnesses, Raghunath (PW-1) and Moharbai (PW-8), perusal of site-plan (Exhibit P-3) proves that these witnesses could not have seen the place of incident from their own eyes. But the learned trial court has convicted the accused-appellants only because it found proved that Raghunath (PW-1), Ajab Bai (PW-7), Mohar Bai (PW-8), Hajra Bai (PW-9), have proved that it were the accused-appellants, who had abducted deceased Bhura. It is thus proved that they formed an unlawful assembly and had a common object, in furtherance of which they have abducted deceased Bhura. Therefore, while it is proved that which of the accused amputated his hand and leg, it will be deemed that each one of the accused of such unlawful assembly is vicariously responsible for such act. Learned Senior Advocate therefore submitted that presumption of Section 106 of the Evidence Act cannot be drawn against accused-appellants because prosecution has come out with as many as four eye-witnesses, Appellants could not be convicted on such presumption. In this connection, reliance can be placed on the judgment of the Supreme Court in Murlidhar and others Vs. State of Rajasthan : AIR 2005 SC 2345.
Shri Biri Singh Sinsinwar, learned Senior Advocate for the accused-appellants also cited the judgments of the Supreme Court in Faizan Ahmad @ Kalu Vs. State of Bihar 2013 IAD (S.C.) 269, and argued that the Supreme Court held therein that the criminal court recognize only legally admissible evidence and not far-fetched conjectures and surmises. If a criminal court allows its mind to be swayed by the gravity of the offence and proceeds to hand out punishment on that basis, in the absence of any credible evidence, it would be doing great violence to the basic tenets of criminal jurisprudence.
Per contra, Shri Javed Choudhary, learned Public Prosecutor, while supporting judgment of the learned trial court, argued that accused-appellants have rightly been convicted because there is overwhelming evidence that it were the accused-appellants and none else, who abducted Bhura (deceased) and took him to the agriculture field of Bhanwarji and put heavy stones over his right hand and leg and thereafter amputated the hand and leg with the help of 'kulhari' and sword. Learned Public Prosecutor has in this behalf referred to statement of Raghunath (PW-1), Ajab Bai (PW-7), Mohar Bai (PW-8) and Hajra Bai (PW-9).
Learned Public Prosecutor argued that although Raghunath (PW-1), in cross-examination, made slight deviation but he has fully supported the prosecution case in the examination-in-chief. This witness categorically stated that they followed the accused till some distance when the deceased was subjected to beating by them but did not go further to save him because of fear of life. This proved that Raghunath (PW-1) and other three eye-witnesses, namely, Ajab Bai (PW-7), Mohar Bai (PW-8) and Hajra Bai (PW-9) were in the vicinity. It was moonlit night and therefore the witnesses could have seen the accused taking the deceased to the agriculture field. It was argued that mere non-production of Head Constable Kanhaiyalal, who was scribe of the first information report, would not be fatal because the first information report has been otherwise proved by its lodger. This witness has stated that distance between the house from where deceased was abducted and the place where he was murdered, is not more than 150 meters. It was therefore quite natural for this witness and other three eye-witnesses, who are close relatives of deceased to follow the accused. Learned Public Prosecutor referred to statement of Ajab Bai (PW-7), mother of deceased Bhura, who stated that it was a dark night but she witnessed the incident from a distance of 50 feet. Moharbai (PW-8) and Hajrabai (PW-9) have also proved the prosecution case. It is submitted that while Moharbai (PW-8) is widow, Raghunath (PW-1) is father, Ajab Bai (PW-7) is mother and Hajrabai (PW-9) is sister of deceased Bhura, but at the same time Raghunath (PW-1), Ajab Bai (PW-7) and Hajra Bai (PW-9) are respectively father, mother and sister of accused Dhirap, Sagar and Takhat as well as father-in-law, mother-in-law or wife of accused Parmal. It cannot therefore be accepted that these witnesses, who are so close relative of both, the deceased and the accused, would make false statement against their sons/son-in-law/husband.
Shri Javed Choudhary, learned Public Prosecutor in support of his arguments cited judgments of the Supreme Court in Ramesh Harijan Vs. State of U.P. - AIR 2012 SC 1979, State of M.P. Vs. Lattora (2003) 11 SCC 761, Sucha Singh Vs. State of Punjab (2001) 4 SCC 375, State of W.B. vs. Mir Mohammad Omar and others (2000) 8 SCC 382, Sucha Singh Vs. State of Punjab (2003) 7 SCC 643, Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681, and judgment of the Calcutta High Court in State of West Bengal Vs. Shyamal Saha and Prosanta @ Kabu Kabiraj, G.A. No.9/2000, decided on 11.03.2008, and argued that since the evidence of four witnesses, namely, Raghunath (PW-1), Ajab Bai (PW-7), Mohar Bai (PW-8), Hajra Bai (PW-9), categorically proves the fact that it were the accused-appellants, who abducted the deceased and took him to the agriculture field of Bhanwarji where his dead-body was found, it was for the accused-appellants to explain as to what had happened to the victim after he was abducted by them, this fact being especially within the knowledge of accused-persons alone. Presumption of Section 106 of the Evidence Act was therefore rightly raised against accused-appellants because the prosecution, in the present case, has succeeded in establishing the other circumstances connecting the accused with the crime. It is trite law that the court can presume existence of a fact from the set of other proved facts, which, it considers, were likely to have happened.
Relying on the judgment of the Supreme Court in Ramesh Harijan, supra, learned Public Prosecutor argued that even if some of the eye-witnesses have slightly exaggerated in their statements or made some contradictions from each other, that cannot be a reason to entirely discard their testimony. Some exaggeration or embellishment by the witnesses is quite possible as it happened in their over anxiety to do so. It is therefore prayed that the appeal be dismissed.
We have given our thoughtful consideration to rival submissions, carefully studied the cited case law and perused the material on record.
As far as the evidence of all four witnesses, namely, Raghunath (PW-1), Ajab Bai (PW-7), Mohar Bai (PW-8), Hajra Bai (PW-9), are concerned, there is consistency with regard to the allegation that accused-appellants had forcibly abducted the deceased. The witnesses do not support each other on the question whether they were eye-witnesses to the incident or they had seen the accused amputating the hand and leg of the deceased. Raghunath (PW-1) has stated that he did not see the accused amputating hand and leg of deceased though he heard the deceased cry. While in the examination-in-chief, he has stated that the incident had taken place in the night before dawn but in cross-examination he has stated that the incident took place between 12 Hrs to 1 Hrs in the mid night. Jagdish (PW-19) was the witnesses to the incident, who was sitting on the platform ('chabutra') outside the house of deceased. He has stated that it was a dark night. He has also stated that he had not seen the accused-appellants amputating the hand and leg of the deceased but saw the accused abducting the deceased. Ajab Bai (PW-7), mother of deceased, has, however, stated that the incident took place in the night and the accused had taken the deceased Bhura to agriculture field of Devilal and amputated his one hand and leg, which could not be found. She claimed that she followed the accused and witnessed the incident from a distance of about 50 feet. She had seen them beating the accused. In cross-examination, she stated that it was a dark night. When they tried to stop accused from abducting Bhura (deceased), they pushed them aside. Her husband had also witnessed the incident of beating of deceased by accused, though her husband Raghunath (PW-1) denies this. Moharbai (PW-8), widow of deceased Bhura, has stated that accused abducted Bhura and took him to the agriculture field of Bhanwar. They amputated his one hand one leg, which could not be traced out. She witnessed the incident from distance of about 50 feet. Gendalal has pressed his leg with heavy stone. It was a moonlit night. This witness stated that when the accused abducted the deceased, all the witnesses made hue and cry but no villager came forward to help them because everybody was afraid of the accused. Gendalal had amputated the hand of the deceased by use of 'kulhari'. His leg was also amputated by Gendalal by use of sword. Hajra Bai (PW-9), sister of the deceased, has, however, stated that she witnessed the incident from a close distance of 15 feet. Accused Gendalal and Takhat Singh amputated his hand and leg by sword. In cross-examination, she stated that the incident took place at the dawn and not much time was left before sun rise. Movement of the people had already started. In cross-examination, she has changed the version made in the chief and stated that hand of the deceased was amputated by accused Dhirap and Takhat Singh and his leg was amputated by Takhat Singh and Gendalal.
Analysis of evidence, thus, clearly shows that out of four eye-witnesses produced by the prosecution, three witnesses, namely, Ajab Bai (PW-7), Mohar Bai (PW-8) and Hajra Bai (PW-9), claimed that they have seen the incident right from the time when deceased Bhura was abducted from the house and taken to the agriculture field. But here, Ajab Bai (PW-7) and Hajra Bai (PW-9) differ with other witnesses and stated the deceased was taken to agriculture field of Devilal, whereas Raghunath (PW-1) and Mohar Bai (PW-8) stated deceased was taken to agriculture field of Bhanwarji. In cross-examination Raghunath (PW-1) stated that he did not see the accused amputating the hand and leg of deceased, while other three eye-witnesses claim that they saw accused-appellants amputating his right hand and leg. This is serious contradcition in the statements of the eye-witnesses. Raghunath (PW-1), the informant, has stated that he partly witnessed the incident only till deceased Bhura was forcibly abducted by accused-appellants but this witness also stated that when the accused-appellants came to his house for abducting Bhura, they were armed with 'palsia' and 'kulhari', and soon after Bhura was abducted, he heard his cry. He did not move forward for fear of his life. This witness stated that he cannot say as to what was the exact cause for which the accused and deceased were fighting but they had been having some dispute with each other for last 12 months. This witness also stated that accused Dhirap and deceased Bhura had an old enmity. The incident had taken place between 12 Hrs and 1 Hrs in the mid night and that it was a dark night. Ajab Bai (PW-7), who is mother of deceased and accused-appellants Dhirap, Sagar and Takhat Singh, stated that accused forcibly abducted deceased Bhura and took him to the agriculture field of Devilal. They amputated his one hand and one leg. She followed them for quite some distance and watched the incident from a 'neem' tree situated 50 feet away from the place of incident. Statement of this witness suggests that the incident had taken place some time in the mid night. This witness stated that she did not move forward to save the deceased because the accused might have beaten her as well. She named Takhat Singh and Genda as the one who amputated the hand and leg of the deceased. She has further stated that the incident had taken place in the complete dark night. Mohar Bai (PW-8), the widow of deceased Bhura, has also named all accused-appellants on allegation of abduction of her husband forcibly and then taking him to the field of Bhanwarji and amputating his one hand and leg. She has alleged that Gendalal put a heavy stone on his leg. She and other witnesses saw the incident from a 'neem' tree merely 50 feet away from the place of incident. Gendalal put a heavy stone on his leg. His hand and leg were amputated. In cross-examination also, she named Gendalal as the one, who amputated his hand by 'kulhari' and leg by sword. This witness stated that her father-in-law and mother-in-law and sister, apart from herself, witnessed the incident. This witness has given a different version while stating that the incident took place at about 5-6 A.M. Hajra Bai (PW-9), sister of deceased and appellants Dhirap, Takhat Singh and Sagar, has also similarly stated that she saw the accused abducting the deceased forcibly from his house and that they took the deceased to the agriculture field of Devilal. She saw the incident from a distance of 50 feet. Gendalal and Takhat Singh amputated his hand and leg by sword. Takhat Singh put heavy stones on his hand and then amputated the same by sword. The other three accused caught hold of him. Her mother, father and sister-in-law ('bhabhi') also saw the incident. This witness stated that though it was a night but the sun had started rising and it was dawning daybreak. There was movement of the villagers on the way. This witness stated that she was also beaten by Dhirap and her mother was beaten by accused Parmal. Her sister-in-law ('bhabhi') was beaten by Takhat Singh. She alleged that it was Dhirap and Takhat Singh, who amputated the hand of the deceased and accused Takhat Singh and Gendalal had amputated the right leg of the deceased. This witness has admitted in the cross-examination that it was a dark night but the sun had started rising.
Reliance for the argument that presumption of Section 106 of the Evidence Act cannot be raised, is placed on the judgment of the Supreme Court in Murlidhar, supra, because in the present case if not four, at-least three eye-witnesses claimed that they had seen the incident and, therefore, the present one cannot be accepted to be a case where it can be said that facts were especially within the knowledge of abductors (accused-appellants) and they failed to extend the explanation as to what happened to Bhura after his abduction. This is because the prosecution did not proceed on the footings that the facts were especially within the knowledge of the accused. Prosecution rather took upon itself the burden of examining four eye-witnesses, although one of the eye witness Raghunath (PW-1) has partly supported the prosecution case, claiming to have witnessed the incident of abduction only and not of the amputation of hand and leg of the deceased. Despite number of judgments cited by the learned Public Prosecutor to the contrary, we are persuaded to hold that the legal principle of shifting the burden of proof as per Section 106 of the Evidence Act onto the accused, would not apply to the present case. Learned Public Prosecutor has relied on the judgment of the Supreme Court in State of W.B. vs. Mir Mohammad Omar and others, supra, to argue that since the accused abducted the deceased and took him to the agriculture field of Bhanwarji situated at a distance of 150 meters away from the house of deceased and on the following day his dead-body was found with amputation of right hand and leg, what happened to him is a fact especially within the knowledge of the accused-appellants and, therefore, by virtue of Section 106 of the Evidence Act, the burden would shift onto them to show as to what happened to the victim after he was abducted by them.
The Supreme Court in State of W.B. vs. Mir Mohammad Omar and others, supra, held that presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule of law of evidence that a fact, otherwise doubtful, may be inferred from certain other proved facts. While inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches to a logical conclusion as the most probable position. The above principle has gained legislative recognition in India, when Section 114 was incorporated in the Evidence Act. It empowers the court to presume the existence of any fact, which it thinks likely to have happened. In that process, the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. Our this view finds support from the law laid down by the Supreme Court in Murlidhar, supra. In that case, the prosecution sought to prove its case by producing eye-witnesses. When eye-witnesses were not believed, the prosecution sought to invoke Section 106 of the Evidence Act and argued that it was for accused to prove the facts especially within their knowledge. Rejecting such argument, the Supreme Court in Para 22 of the judgment, observed as under:-
In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are "especially within the knowledge of the accused" and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, "especially within the knowledge of the accused." In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eye witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW-5) as eye witness. Testimony of Ram Ratan (PW-7) and Isro (PW-10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW-10), the father of Ramlal. The evidence of Govind (PW-13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW-5), Ram Ratan (PW-7), Isro (PW-10) and Govind (PW-13) are wholly unreliable as their evidence is replete with contradiction and inherent improbabilities.
Perusal of the impugned judgment indicates that learned trial court has also raised presumption with reference to Section 106 of the Evidence Act. But it has also analyzed the evidence of the eye-witnesses in the light of the site-plan (Exhibit P-3) and held that the distance between the place where the dead-body of the deceased was found and the place where from he was abducted, is 130 feet. The house of deceased was situated at a height of 25 feet. The incident had taken place in the night, but learned trial court has held that since the witnesses have mostly stated that it was a dark night and incident took place in the mid of the night and Raghunath (PW-1) has also stated that he did not see the complete incident, the other prosecution witnesses, namely, Ajab Bai (PW-7), Mohar Bai (PW-8) and Hajra Bai (PW-9), did not actually see the incident of amputation of one hand and leg of the deceased. Their assertion to the contrary could not be accepted in view of the site-plan, and they could not be accepted as eye-witnesses of the latter part of the incident.
Raghunath (PW-1) has also stated that the incident was witnessed by Jagdish S/o Phulia, who was sitting outside his house at the time when the incident took place at about 12 Hrs - 1 Hrs in the night. Jagdish has been examined as PW-19, who has stated that around 1 O' clock in the night of that day, deceased Bhura came to him and took him towards 'palli' in the village and there they were seated on a 'chabutra' for about half-an-hour, but he has denied to have seen the incident of beating, though he admitted that he knew all the accused-appellants and has categorically stated that none of them subjected deceased Bhura to beating. This witness has been declared hostile. In the F.I.R., informant Raghunath (PW-1) stated that when accused-appellants abducted Bhura, his brother-in-law Bhagwan Singh was present in the house but in the cross-examination before the court he stated that Bhagwan Singh was not present in the house, so the prosecution has withheld Bhagwan Singh and has not produced him as a witness. Raghunath (PW-1) has stated that the report was written by the Head Constable deputed at Maharajpura police outpost. It may be noted that this police outpost is only two kilometers away from the place of incident. The identity of the Head Constable deputed at Maharajpura police outpost was disclosed to be Kanhaiyalal but he has not been produced by the prosecution as witness. Another Head Constable Kanhaiyalal (PW-12), who accompanied the Station House Officer from the Police Station to the place of incident, has been produced. Had Kanhaiyalal, the Head Constable, been produced as a witness, he could have verified the fact whether the written-report was actually authored by him because Gopichand (PW-15), the Investigating Officer, has stated that Kanhaiyalal sent the information by wireless but no written-report was submitted by the information in the police outpost, rather the report was given to him on the place of incident when he visited there. This creates doubt about the version given in the first information report as to the role assigned to the different accused because the informant Raghunath when examined as PW-1 in the court has denied having seen the accused abducting the deceased after he was abducted by them and taken to the agriculture field of Bhanwarji. In the first information report the allegation is of amputating hand made against accused Dhirap, and as also against accused Gendalal, Parmar, Sagar. The allegation of amputating the leg by use of 'kulhari' has been made against Gendalal, Parmar, Sagar and Dhirap, but the informant has not supported this allegation in his court statement, whereas the other witnesses have given a different version, as discussed above.
In a case where there are eye-witnesses, everything would depend on the fact whether or not, version of such eye-witnesses is believed? The prosecution having produced the eye-witnesses, cannot then fall back upon the principles embodied in Section 106 of the Evidence Act or otherwise on circumstantial evidence. The principles of law embodied in Section 106 of the Evidence Act have been applied in a catena of decisions, cited by learned Public Prosecutor in Ramesh Harijan, State of M.P. Vs. Lattora, State of West Bengal Vs. Mir Mohammad Omar, Sucha Singh Vs. State of Punjab, Trimukh Maroti Kirkan Vs. State of Maharashtra and State of West Bengal Vs. Shyamal Saha & Prosanta @ Kabu Kabiraj. But conviction in all those cases was based on circumstantial evidence.
In our considered view, the learned trial court has rightly not considered Raghunath (PW-1), Ajab Bai (PW-7), Mohar Bai (PW-8), Hajra Bai (PW-9), as eye-witnesses at-least to the part of the incident, in which the allegation of amputation of one hand and leg is made against the accused-appellants. Contention that presumption of Section 106 of the Indian Evidence Act, 1872, cannot be raised in a case where the prosecution comes out with eye-witnesses, deserves to be accepted.
Raghunath (PW-1) has stated that there were disputes between the accused and deceased and they were fighting with each other for last about a year. Accused Dhirap had an old enmity with deceased Bhura. Mohar Bai (PW-8), widow of deceased, has stated that accused had old enmity with deceased since the time they committed the theft in the village Amasar. In the first information report, informant Raghunath alleged that some time in the past, Bhura had amputated the hand and leg of accused Dhirap and it was owing to this enmity that the accused abducted him. Gopichand (PW-15), the Investigating Officer, has stated that the deceased was 'A' class history-sheeter of their police station and several criminal cases of theft and dacoity were registered against him with their police station and also with the police station at Guna in the State of Madhya Pradesh. In his cross-examination, this witness admitted that name of deceased was synonym of terror in the area and several persons had enmity with him. This witness also admitted the fact that accused Takhat Singh on 15th October, 2001, gave an information under Section 27 of the Evidence Act, vide Exhibit P-24 that he had concealed the amputated hand and leg of the deceased in the forest of village Maharajpura. Similar information was also given by accused Dhirap Singh vide Exhibit P-25. But the police, despite search of the indicated place, could not recover the amputated hand and leg of the deceased. Though, the recovery of 'gandasi' ('phalsi') was shown at the instance of accused Dhirap Singh vide Exhibit P-9, and at the instance of accused Sagar vide Exhibit P-10 and also at the instance of accused Gendalal vide Exhibit P-12. 'Kulhari' was recovered at the instance of accused Takhat Singh vide Exhibit P-13. But both 'motbir' witnesses of recovery, namely, Mohan Lal (PW-6) and Bapu Lal (PW-16), have turned hostile and not supported any of the recoveries. No recovery has been shown at the instance of accused Parmal. The fact is that deceased himself was 'A' class history-sheeter of Maharajpura Police Station. Besides, he had several other criminal cases registered against him not only with Police Station Maharajpura and other Police Stations in Rajasthan, but also at Police Station Guna in the State of Madhya Pradesh. Considering that there is the admission of the Investigating Officer that the deceased had enmity with several persons, the possibility of his being attacked by any other person cannot be ruled out. This becomes all the more possible because there are two versions in the statements of prosecution witnesses. While Raghunath (PW-1) has stated that the incident took place between 12 Hrs and 1 Hrs and Ajab Bai (PW-7) has stated that it was completely a dark night when the incident took place and it dawned quite some time thereafter, thus indicating that the time of mid night. Mohar Bai (PW-8) has stated that the incident took place around 5 Hrs and 6 Hrs in the morning and Hajra Bai (PW-9) has also supported by stating that the incident took place when day was about to break. Then they are equally divided as to the place of incident.
It is trite that an accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty is always on the prosecution. The prosecution has to establish its case beyond all reasonable doubt. Innocence of the accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubt on the basis of evidence. The learned Additional Sessions Judge in the present case had disbelieved the eye-witnesses. But then, it proceeded to convict the accused-appellants on the basis of presumption, which presumption would not be available in the facts of the present case because the prosecution has come with specific case that there were eye-witnesses to the incident. Once the prosecution had come out with such a case, as already discussed above, Section 106 of the Evidence Act could not be invoked because then such facts were not especially within the knowledge of the accused in the meaning of Section 106 of the Evidence Act. What is proved by legally admissible evidence of the prosecution is the fact of abduction of the deceased but not of his murder or for that matter, amputation of his hand and leg. Mere fact that the accused-appellants had abducted the deceased in the mid night and following morning he was found dead, would not be a reason to call them guilty of his murder. An accused is presumed innocent and cannot be held guilty on the basis of suspicion however strong it may be, for suspicion cannot substitute proof.
The Supreme Court in Faizan Ahmed @ Kalu, supra, held that the High Court should not be carried away by the heinous nature of the crime and, in that, it should not lose sight of the basic principle underlying criminal jurisprudence that suspicion, however grave, cannot take the place of proof. If a criminal court allows its mind to be swayed by the gravity of the offence and proceeds to hand out punishment on that basis, in the absence of any credible evidence, it would be doing great violence to the basic tenets of criminal jurisprudence. There is thus scope of reasonable doubt in the facts of the present case extending in favour of accused-appellant in so far as their conviction for offence under Section 302/149 IPC is concerned and therefore to that extent they are entitled to benefit of doubt.
In view of the above discussion, the prosecution, in our considered view, has failed to prove the charge against accused-appellants for offence under Section 302/149 of the IPC and to that extent all three appeals of the accused-appellants deserve to succeed. Their convictions for offence under Sections 364 IPC as also under Section 148 IPC are maintained. Consequent upon their conviction under Sections 364 I.P.C., though the accused-appellants were sentenced to undergo rigorous imprisonment for three years, but they have already served the sentence for the period of about 11 years and 5 months. Their appeals to the extent they seek to challenge the convictions under Sections 364 and 148 IPC are dismissed. The accused-appellants may be set at liberty forthwith, if they are not required to be detained further in connection with any other criminal case. Their bail bonds and sureties stand discharged. All the three appeals, including the jail appeal, are accordingly partly allowed.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely, Dhirap Singh, Sagar Singh, Gendalal, Takhat Singh and Parmal, are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.
(Jainendra Kumar Ranka) J. (Mohammad Rafiq) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW