Rajasthan High Court - Jodhpur
Teja Ram vs State Of Rajasthan on 27 May, 2022
Bench: Sandeep Mehta, Vinod Kumar Bharwani
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 67/2019
1. Teja Ram S/o Sh. Surta Ram, Aged About 61 Years, B/c
Choudhary And R/o Village Elana , P.s. And Tehsil Jalore ,
Distt. Jalore (Raj) (Presently Lodged In Distt. Jail , Jalore)
2. Mangilal S/o Sh. Surta Ram, Aged About 36 Years, B/c
Choudhary And R/o Village Elana , P.s. And Tehsil Jalore ,
Distt. Jalore (Raj) (Presently Lodged In Distt. Jail , Jalore)
3. Venaram S/o Sh. Modaram, Aged About 37 Years, B/c
Choudhary And R/o Village Elana , P.s. And Tehsil Jalore ,
Distt. Jalore (Raj) (Presently Lodged In Distt. Jail , Jalore)
4. Smt. Sayati Devi W/o Sh. Teja Ram, Aged About 51
Years, B/c Choudhary And R/o Village Elana , P.s. And
Tehsil Jalore , Distt. Jalore (Raj) (Presently Lodged In
Distt. Jail , Jalore)
5. Smt Suwa D/o Sh. Teja Ram, Aged About 21 Years, B/c
Choudhary And R/o Village Elana , P.s. And Tehsil Jalore ,
Distt. Jalore (Raj) (Presently Lodged In Distt. Jail , Jalore)
----Appellants
Versus
State Of Rajasthan, Through Pp
----Respondent
For Appellant(s) : Mr. Sikander Khan
Mr. Shubham Chauhan
For Respondent(s) : Mr. R.R. Chhaparwal, P.P.
Mr. Pradeep Choudhary, for the
complainant
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
Judgment
Date of pronouncement : 27/05/2022
Judgment reserved on : 06/05/2022
BY THE COURT : PER HON'BLE MEHTA, J.
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The appellants Tejaram, Mangilal, Venaram, Smt.
Sayati and Smt. Suwa Devi have been convicted for the offences under Sections 148, 342/149, 323/149, 302/149 and 201/149 IPC and sentenced as below vide the judgment dated 25.02.2019 passed by the learned Sessions Judge, Jalore in Sessions Case No.15/2017 :-
Offence for which Sentences awarded convicted Section 148 IPC Three years' rigorous imprisonment and a fine of Rs.5,000/- and in default of payment fine, further to undergo three months' simple imprisonment Section 342/149 IPC One year's rigorous imprisonment and a fine of Rs.1,000/- and in default of payment fine, further to undergo one month's simple imprisonment Section 323/149 IPC One year's rigorous imprisonment and a fine of Rs.1,000/- and in default of payment fine, further to undergo one month's simple imprisonment Section 201 IPC Seven years' rigorous imprisonment and a fine of Rs.10,000/- and in default of payment fine, further to undergo six months' simple imprisonment Section 302 IPC Life imprisonment and a fine of Rs.20,000/- and in default of payment fine, further to undergo one year's simple imprisonment They have preferred the instant appeal under Section 374 (2) CrPC for assailing the impugned judgment of conviction and the sentences awarded to them by the trial court.
Briefly stated, the facts relevant and essential for disposal of the appeal are noted hereinbelow :-
The deceased Hanjaram was married to appellant Suwa Devi about 3 years before the incident. It was a marriage in exchange, wherein the above-mentioned union was requited with (Downloaded on 03/06/2022 at 07:58:01 PM) (3 of 26) [CRLAD-67/2019] Sayali Devi, sister of the deceased, being married off to Mangilal, paternal uncle of Suwa Devi. Hanjaram had been called by his in- laws and went to Tejaram's home on 13.04.2017 and did not return for a couple of days. Hanjaram's father Madaram made an enquiry from Tejaram, father of Suwa Devi and father-in-law of Hanjaram, regarding the whereabouts of Hanjaram, on which, he gave a reply that the couple had gone to Khetlaji Sonana for Darshan and would return in few days. Some influential villagers, namely, Sawaram, Babraji and Jodhaji, made stringent enquiry from the accused persons, on which, Tejaram and Mangilal allegedly confessed that they had eliminated Hanjaram for once and all and that his family members were free to proceed as they desired. Kisturaram (P.W.19), brother of the deceased Hanjaram lodged a written report (Ex.P/40) at the Police Station Jalore on 25.04.2017 at 09.46 p.m. incorporating the above facts and alleged inter alia that on the very day, his brother had gone to his matrimonial home, in the evening at about 6 to 7 o'clock, Kanaram Choudhary (PW.10) was passing from near the home of the accused persons, and that he saw that Hanjaram had been tied up and Tejaram, Mangilal, Venaram, Suwa Devi and Sayati Devi were launching a consorted attack on him with lathis.
Kanaram tried to intervene and save Hanjaram, on which, he was threatened to go away or to face the same consequences. Kanaram was all alone and it was late in the day and since, he had been threatened, he went away from the place of incident. The complainant further alleged that previously also, Hanjaram was beaten by the accused persons, but they did not report the matter so as not to expose the family relations in the society. On (Downloaded on 03/06/2022 at 07:58:01 PM) (4 of 26) [CRLAD-67/2019] receiving this report at the Police Station, supplementary statement of Kisturaram was recorded, wherein he stated that Hanjaram was married to Suwa Devi about 3 years back. He was a simpleton. He had gone to his in-laws house on 13.04.2017 all alone and did not return home. They made enquiry from Tejaram, Mangilal and Venaram, on which, they replied that Hanjaram would be sent back. The complainant feared that Tejaram, Venaram, Mangilal, Sayati Devi and Suwa Devi might have beaten up and either confined or killed Hanjaram.
On the basis of this report, FIR No.117/2017 (Ex.P/53) came to be registered for the offences punishable under Sections 342, 323 and 143 IPC and investigation was assigned to Champaram (P.W.18), SHO, Police Station Kotwali, Jalore. The prosecution claims that Sahiram, ASI (P.W.5) apprehended accused Tejaram and recorded an information (Ex.P/14) under Section 27 of the Evidence Act at his instance on 26.04.2017 at 03.00 p.m., wherein the accused allegedly divulged that he had buried the body of his son-in-law Hanjaram S/o Madaji Choudhary, R/o Elana in a water channel at a distance of about 1 km. from their agricultural field and that he could disclose the place where the body was buried. The dead body of Hanjaram was recovered buried under sand vide memo Ex.P/4 dated 26.04.2017, which neither bears any time nor the same was signed by the accused. The document memorandum (Ex.P/4) was attested by Pragaram (P.W.17) and Sawaram (P.W.4) and there is no reference in the document that the body was being recovered in furtherance of the information provided by the accused Tejaram under Section 27 of (Downloaded on 03/06/2022 at 07:58:01 PM) (5 of 26) [CRLAD-67/2019] the Evidence Act. The SDM, Jalore was also present at the spot. The memorandum clearly indicated that the face of the body was unidentifiable. The body was totally covered in sand. However, Kisturaram on observing the dead body stated that he could identify the body to be of his brother Hanjaram. After the dead body had been dug out, autopsy was conducted through a medical board, which issued postmortem report Ex.P/3 dated 26.04.2017 taking note of fractures on the face and head area. The viceras were preserved for serological examination so that the cause of death could be ascertained. The details of the arrest of the accused appellants, informations provided by them under Section 27 of the Evidence Act and the recoveries made in furtherance thereof are reproduced herein hereinbelow in a tabular form :-
S. Name of Arrest Memo of Recovered
No. the memo information under articles and
arrested Section 27 of the seizure memo
accused Evidence Act
1. Teja Ram Ex. P15 Ex. P14 pertaining to
the location of the
body of the deceased
Ex. P46 pertaining to Stick (lathi)
the place where stick recovered and
(lathi) was hidden marked as Ex. P6
Ex. P49 pertaining to Tractor recovered
parking of tractor and marked as Ex.
with trolley P12
2. Mangilal Ex. P16 Ex. P47 pertaining to Stick (lathi)
the place where stick recovered and
(lathi) was hidden marked as Ex. P8
3. Vena Ram Ex. P17 Ex. P48 pertaining to Stick (lathi)
the place where stick recovered and
(lathi) was hidden marked as Ex. P10
4. Sayti Devi Ex. P42 Ex. P44 pertaining to
the place of incident
5. Suwa Devi Ex. P43 Ex. P45 pertaining to
the place of incident
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The statement of Kanaram was recorded on
26.04.2017, wherein he claims to have seen the accused appellants assaulting Hanjaram, who was tied up and confined. After the accused had been arrested, lathis were recovered at the instance of Tajeram, Mangilal and Venaram. The serological report (Ex.P/51) dated 05.09.2017, issued after conducting tests on the articles forwarded by the investigating agency, concluded that the lathi recovered at the instance of accused Tejaram gave positive test for presence of "AB" group human blood. However, all other articles including the soil adhered to the dead body gave negative test for presence of human blood. Thus, the blood group of the deceased could not be ascertained. Charge-sheet was filed against the accused appellants and the case was committed to the Court of Sessions Judge, Jalore, where charges were framed against them for the offences punishable under Sections 302 IPC in the alternative 302/149 IPC, 201 IPC in the alternative 201/149 IPC, 148 IPC; 323 IPC in the alternative 323/149 IPC; 342 in the alternative 342/149 IPC. The accused pleaded not guilty and claimed trial. The prosecution examined 20 witnesses and exhibited 54 documents to prove its case. The accused were questioned under Section 313 CrPC and were confronted with the circumstances appearing against them in the prosecution evidence, which they denied and claimed to have been falsely implicated. The trial court, proceeded to hear the arguments advanced by the learned Public Prosecutor, learned counsel representing the complainant and the defence counsel, appreciated the evidence and thereafter proceeeded to convict (Downloaded on 03/06/2022 at 07:58:01 PM) (7 of 26) [CRLAD-67/2019] and sentence the appellants as above vide the impugned judgment dated 25.02.2019, which is assailed in this appeal.
Mr. Sikandar Khan, learned counsel representing the appellants, advanced the following arguments to assail the impugned judgment seeking acquittal for the appellants :-
1. That the appellants had no plausible motive whatsoever for murdering the deceased Hanjaram;
2. That the written report (Ex.P/40) came to be registered after gross delay of 12 days because the deceased allegedly left for his matrimonial home on 13.04.2017, whereas the FIR came to be lodged on 25.04.2017 and that there is no justification for this gross delay in lodging of the report.
3. That the so-called witnesses of alleged extrajudicial confession, namely, Bawara Ji and Jodha Ji were not examined by the prosecution. The witness Sawa Ji (P.W.4) did not state in his evidence that the accused made any extrajudicial confession in his presence;
4. That the prosecution could not lead plausible evidence to show that the body, which was recovered vide memo Ex.P/4 was of Hanjaram because when the body was dug out, it was in a totally degenerated condition and was not fit for identification. He drew the court' attention to the photographs Ex.P/26 to Ex.P/31, wherein the dead body is visible as a hunched figure and is totally covered in sand and there is no possibility that any identification thereof could be made by the human eye. He, thus, urged that the prosecution should have availed the procedure of DNA (Downloaded on 03/06/2022 at 07:58:01 PM) (8 of 26) [CRLAD-67/2019] comparison for establishing that the body was of Hanjaram. He also referred to the statement of the medical jurist Dr. Rameshchandra Chauhan (P.W.3), who admitted that the dead body was not fit for identification.
5. That the statement of the so called sole eye-witness Kanaram (P.W.10) is totally unbelievable. The written report (Ex.P/40) refers to the fact that Kanaram saw Hanjaram being assaulted on the very same day, he had gone to his matrimonial home.
However, in the written report, which came to be lodged after nearly 12 days of the incident, there is no explanation as to why Kanaram did not timely convey the fact of having seen the assault to the family members of the deceased. Learned counsel for the appellants urged that the witness Kanaram, upon being examined on oath as P.W.10, tried to give an explanation that after he had seen the incident, he proceeded to Jodhpur for personal household work and when he came back to the village about 12-13 days later, he came to know that Hanjaram was missing and his family members were searching for him. In cross-examination, the witness admitted that his house is at a distance of 6-7 kms. from the place of incident. The witness could not explain as to why he went to the place of incident even though he had no connection whatsoever with the accused persons. The witness admitted that Hanjaram, was earlier on also beaten by his in-laws and that is why, he did not report the incident to the police or to anyone else. The witness was confronted with his police statement (Ex.D/1), wherein there is a total omission of the fact that he proceeded to Jodhpur after the incident and that is why he could not give a (Downloaded on 03/06/2022 at 07:58:01 PM) (9 of 26) [CRLAD-67/2019] timely information to the family members of Hanjaram or to the police. Mr. Khan, thus, urged that Shri Kanaram is purely a chance witness and his presence at the spot at the time of the incident is neither explainable nor believable. The gross delay on part of the witness in disclosing the factum of assault to the family members of the deceased or to the police brings his conduct under grave suspicion and hence, the evidence of Kanaram is not reliable.
In support of his contentions, Mr. Sikandar Khan, learned counsel for the appellants placed reliance on the Supreme Court judgment in the case of Harbeer Singh vs. Sheeshpal and others [(2016) 16 SCC 418 ] and implored the court to accept the appeal, set aside the impugned judgment and acquit the accused appellants of the charges.
Per contra, learned Public Prosecutor and Mr. Pradeep Choudhary, learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by the learned counsel for the appellants. They urged that the prosecution has proved its case as against the appellants by clinching direct evidence of Kanaram (P.W.10) and grave incriminating circumstances of recovery of the dead body at the instance of the accused Tejaram and the recoveries of lathis at the instance of Tejaram, Mangilal and Venaram vide seizure memos Ex.P/6, Ex.P/8 and Ex.P/10. They, thus, implored the court to uphold the impugned judgment and dismiss the appeal. (Downloaded on 03/06/2022 at 07:58:01 PM)
(10 of 26) [CRLAD-67/2019] We have given our thoughtful consideration to the submissions advanced at bar and have thoroughly re-appreciated the evidence available on record.
The prosecution case is primarily based on the direct evidence of Kanaram (P.W.10) and the circumstantial evidence in the form of motive and recoveries. It was alleged in the written report (Ex.P/40), that Hanjaram, who was married to appellant Suwa Devi about 3 years before the incident, was called to his matrimonial home and left his own house and proceeded there on 13.04.2017. Kisturaram (P.W.19), the first informant alleged in his evidence that he received a call from his father that Hanjaram had proceeded for his in-laws house, but did not return. His father asked the accused Tejaram, who replied that Hanjaram and his wife had gone to Khetlaji Sonana for Darshan. Kanaram met him and informed that he had seen Hanjaram being assaulted by Tejaram and his family members in the agricultural field of Purohits. On receiving this information, Kisturaram filed the report Ex.P/40. In cross-examination, the witness admitted that he had got the report drafted about 2 to 3 hours before the dead body was recovered. However, either this assertion of the witness is incorrect or the memorandum Ex.P/4 dated 26.04.2017 is a fabricated document. The reason for reaching to this conclusion is that the FIR was received by the SHO, Police Station Kotwali, Jalore on 25.04.2017 at 09.46 p.m., whereas the dead body was shown to have been recovered on 26.04.2017. Be that as it may. In the written report Ex.P/40, there is a very important circumstance, which creates a grave doubt on the (Downloaded on 03/06/2022 at 07:58:01 PM) (11 of 26) [CRLAD-67/2019] truthfulness of the entire prosecution story because there is no reference in the report as to when Kanaram told the witness that he had seen the accused appellant assaulting Hanjaram.
Now we proceed to briefly summarize and critically analyze evidence of the witnesses examined by the prosecution.
Vardaram (P.W.1) is a formal witness of site inspection plan (Ex.P/1) and Panchnama Lash (Ex.P/2).
Nainaram (P.W.2) is also a formal witness, who proved the Panchnama Lash (Ex.P/2). In cross-examination, the witness admitted that the entire body was decomposed and was not fit to be identified.
Dr. Rameshchandra Chauhan (P.W.3) was a member of the medical board, which conducted autopsy on the dead body. He stated that the exhumed body was fully covered in sand. Its face and head were totally crushed and that is why the Board withheld the final opinion regarding the cause of death awaiting the forensic reports. In cross-examination, the doctor admitted that the face of the dead body was crushed to such an extent that it could not be identified. The doctor further admitted in cross- examination that at the time of postmortem, the teeth were preserved from the dead body for conducting DNA examination.
Sawaram (P.W.4), who, as per the FIR was a witness of extrajudicial confession, did not state so when examined on oath. He proved various formal documents, viz. Panchnama Lash (Ex.P/2), Surat Haal Lash (Ex.P/4), Supurdginama Lash (Ex.P/5), site inspection plan (Ex.P/1), seizure memos of lathis recovered at (Downloaded on 03/06/2022 at 07:58:01 PM) (12 of 26) [CRLAD-67/2019] the instance of accused Tejaram (Ex.P/6), Mangilal (Ex.P/8) and Venaram (Ex.P/10). In cross-examination, the witness stated that the dead body was decomposed, but he could identify the same by its face. He admitted that the entire body was covered in sand. When the dead body was dug out, the accused was not present at the spot. Kisturaram, brother of the deceased identified the dead body after it was dug out.
Sahiram (P.W.5) stated that he was posted as ASI at the Police Station Kotwali, Jalore. On 26.04.2017, Tejaram, who was in custody, gave him information (Ex.P/14) regarding concealment of the dead body underneath the ground in Khodawala at a distance of 1 km. from their agricultural filed. In cross-examination, the witness admitted that he did not know as to when Tejaram was arrested. The information was given by Tejaram at the police station. He did not go to the spot. Tejaram gave the information on 26.04.2017 at 3 o'clock in the afternoon.
Ukaram (P.W.6) was yet another formal witness of Panchnama Lash (Ex.P/2).
Bhagaram (P.W.7) was associated in recovery of tractor trolley from the field of Tejaram vide memorandum Ex.P/12.
Choparam (P.W.8) gave evidence stating that Tejaram had gone to meet his wife, who had gone to her parental home. He did not return. They waited for two to three days and then they approached Tejaram and made an enquiry from him. Tejaram gave evasive replies. Finally he stated that he did not have any idea as to the whereabouts of Hanjaram. The police dug (Downloaded on 03/06/2022 at 07:58:01 PM) (13 of 26) [CRLAD-67/2019] out the dead body from the ground. Hanjaram was a simpleton and his wife did not like him. Thus, she mostly stayed at her father's house.
Ramchandra (P.W.9) was posted as a Constable at the Police Station Kotwali, District Jalore. He was associated in the arrest of appellants Tejaram, Mangilal and Venaram vide memos Ex.P/15 to Ex.P/17 respectively and identification of the place of incident by the accused Sayati Devi and Suwa Devi.
Kanaram (P.W.10), resident of Village Elana, is the star prosecution witness, on whose direct testimony the entire case hinges. He stated on oath that he was a LIC agent. On 13.04.2017 in the evening at about 6-7 o'clock, he had gone to Village Elana in relation to LIC business with Bhuraram. While returning, his bike got punctured. He contemplated leaving the bike at the field of Tejaram and thus, he proceeded in that direction. When he reached near the field of Tejaram, he heard distressed cries of a man and saw that Hanjaram had been tied up to a tree and was being assaulted by Tejaram, Mangilal, Venaram, Tejaram's wife Sayati Devi and Hanjaram's wife Suwa Devi, who is daugther of Tejaram, all of whom were armed with lathis. The witness claimed that he requested the assailants to refrain from beating Hanjaram, on which, he was theatened that he should go away or else he would meet the same fate. On being threatened, the witness allegedly proceeded to Jodhpur for his domestic work on the very same day and returned to the village about 12-13 days later, on which he heard that Hanjaram was not traceable and his family members were looking out for him, upon this, he (Downloaded on 03/06/2022 at 07:58:01 PM) (14 of 26) [CRLAD-67/2019] approached Kisturaram, brother of deceased Hanjaram, and told him about the incident of assault on Hanjaram, which he had witnessed. On the next day, the dead body of Hanjaram was recovered buried underneath the ground near the field of Tejaram. He heard the villagers talking that Hanjaram was a simpleton and his wife disliked him and wanted to go in Nata and that is why, Suwa and her family members had killed Hanjaram so as to eliminate him from the fray and clear her way. The witness stated that he was associated in the site inspection, which was carried out by the police and verified the memorandum Ex.P/1. In cross- examination, the witness admitted that his house was at a distance of 6-7 kms. away from the place of incident. The distance between his house and the well of Bhura Ji is 6-7 kms. The witness further stated that Bhuraram's well is closer to his house as compared to Tejaram's well. Later on the witness changed the version and stated that Bhuraram's well is further ahead from his house as compared to Tejaram's well. He stated that his bike got punctured about half a km. ahead of field of Tejaram and the place was equidistant from the well of Bhuraram. He did not place his motorcycle at the field of Tejaram and instead dragged it back to his own house. He stated that the police station is located at a distance of 7 kms. from his house. Hanjaram's matrimonial relatives had beaten him up earlier also. The deceased was not related to him, but was of the same caste. He stated that he gave information at the police station 13 days after the incident. However, in the next breath, he stated that he did not inform the police and rather told the brother of the deceased regarding the assault. He stayed at Jodhpur for 13 days (Downloaded on 03/06/2022 at 07:58:01 PM) (15 of 26) [CRLAD-67/2019] and returned to his village on the evening of 24th. The police recorded his statement after the dead body had been recovered. The witness was confronted with his police statement (Ex.D/1) regarding the omission of the fact that he told Kisturaram regarding the incident, but the witness could not explain the same. On a perusal of the police statement (Ex.D/1) of the witness, it becomes evident that there is a total omission of the fact that after allegedly having seen the incident, the witness proceeded to Jodhpur and returned to th village 13 days later. He did not utter a single word as to where he stayed from the date he allegedly saw the incident till his police statement (Ex.D/1) was recorded on 26.04.2017. Apparently, thus, there is a total lack of explanation on part of Shri Kana Ram as to why he kept silent for almost 13 days after having seen the alleged assault being made on Hanjaram. It is an admitted position that the place of incident is 6-7 kms. away from the house of the accused. Thus, very presence of Kana Ram at the place of incident when the alleged assault was going on is doubtful. While trying to explain as to why he was going towards the field of the accused, the witness claimed that his motorcycle got punctured and thus, he wanted to leave it at the field of Tejaram. However, after being threatened, he decided not to do so and proceeded to his own house with the punctured motorcycle. This circumstance also creats a doubt on the truthfulness of Kanaram's testimony. He had allegedly gone to meet Bhuraram for some LIC business and claimed that his motorcycle got punctured at a distance of half a km, equidistant from the field of Bhuraram and the field of the accused. Thus, there was no rhyme or reason as to why the witness would choose (Downloaded on 03/06/2022 at 07:58:01 PM) (16 of 26) [CRLAD-67/2019] the field of Tejaram for parking his motorcycle rather than going to the field of Bhuraram, with whom he was engaged in LIC business. Furthermore, there was no possibility that the witness, who is a handicapped man, as per the police statement Ex.D/1, could have dragged his punctured motorcycle for a distance of almost 6 to 7 kms. after he decided not to park the same at the field of the accused. In natural course of events, the witness would have chosen to park the punctured motorcycle at the field of Bhuraram. Thus, the important circumstances (a) gross delay in disclosing the factum of having seen the alleged assault having been made on Hanjaram to the relatives; (b) a remote chance of the witness being present at the place of the incident at the relevant point of time; (c) his unnatural conduct after the incident and (d) the grave contradictions inter se beteen the sworn statement and 161 CrPC statement (Ex.D/1), make the testimony of Kana Ram totally doubtful. Even if the flimsy explanation of the witness that he had proceeded to Jodhpur soon after having seen the incident is accepted, then too, he admitted that he returned to the village on 24.04.2017. If that was so, then the witness would definitely be expected to immediately share the vital information, which he claimed to be possessing with the family members of Hanjaram, if not with the police. Thus, we have no hesitation in concluding that the evidence of Kanaram (P.W.10), who claims to be eye- witness of the incident, is totally unreliable for the following reasons :-
1. His silence and non-disclosure of the incident to either the family members of the victim or to the police for almost 13 days. (Downloaded on 03/06/2022 at 07:58:01 PM)
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2. He being purely a chance witness and there being hardly any possibility of his presence at the place of incident at the relevant point of time.
3. The flimsy explanation given by the witness for proceeding to the field of the accused in a purported attempt to park his punctured motorcycle; not doing so and then allegedly dragging the motorcycle for a distance of almost 6 to 7 kms. in a punctured state.
4. His flimsy belated explanation that he was not present at the village for almost 14 days having left for Jodhpur immediately after seeing the alleged assault.
Hon'ble the Supreme Court considered the aspect of reliability of evidence of a chance witness in the case of Shankarlal Vs. State of Rajasthan, reported in 2004 AIR SC 3559 and considering the delay in disclosure of the incident attributed to the witness, Hon'ble the Supreme Court held that the evidence of a chance witness whose presence at the place of incident is doubtful, would have to be discarded. Hon'ble the Supreme Court held as below :-
"5. Even according to the prosecution the only witness to the incident in question is PW-6 therefore as contended by learned counsel for the appellant we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to a village Upli for some work. From there he came back by bus at about 11'O clock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance (Downloaded on 03/06/2022 at 07:58:01 PM) (18 of 26) [CRLAD-67/2019] between the field of Ram Rakh and the village is about 4-5 miles and PW-6 covered that distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 or 4.15 p.m. It is his case that when he went to the house of Ram Rakh he could not find him therefore he came near the village square where he met PW-2 Khyali Ram. From the above evidence of PW-6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he reached the village and met Ram Rakh's wife he did not inform her about the incident and it is for the first time he informs about this incident to PW-2 at the village square at about 4.15 p.m. Contrary to what he stated in the examination in chief that he saw only one assault on the deceased, in the cross examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross examination that when he met PW-2 Khyali Ram and told him about the incident in question but PW-2 supposedly told him that he had already come to know of the incident from PW-14. The prosecution has not found how PW-14 came to know of the incident. In this background if we appreciate the evidence of PW-6 we notice the fact that he is purely a chance witness whose presence at the place of the incident (Downloaded on 03/06/2022 at 07:58:01 PM) (19 of 26) [CRLAD-67/2019] is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. on 5.4.1980. Though the distance is about 30 miles from theplace of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the Police Station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW-6 then there is no other material to base a conviction on the appellant hence we are of the opinion that the appellant is entitled to the benefit of doubt therefore this appeal succeeds and is allowed. The judgment and order of conviction of the 2 courts below are set aside. The appellant is acquitted of the charge framed against him. From the records we notice that the appellant is on bail. If so his bailbonds shall stand discharged."
[Emphasis supplied] Thus, the evidence of Kana Ram (P.W.10) is fit to be discarded.
Ashok Kumar (P.W.11) was the photographer, who took the photographs (Ex.P/19 to Ex.P/33) of the dead body and the place of recovery.
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(20 of 26) [CRLAD-67/2019] Bagduram (P.W.12) was posted as ASI at the Police Station Kotwali on the relevant date and was associated in the arrest of the accused Tejaram, Mangilal and Venaram and identification of the place of assault by Sayati Devi and Suwa Devi.
Rajendra Singh (P.W.13) was the SDM, who claims to be present in the process of digging out of the dead body.
Birbalram (P.W.14) was the Malkhana Incharge of the Police Station Kotwali, Jalore at the relevant time and gave out details regarding the deposit and transit of Muddamal articles in and through the Malkhana.
Mewaram (P.W.15) was the carrier Constable, who carried the Mudda Maal articles to FSL.
Devaram (P.W.16) was a Constable posted at the S.P. Office, Jodhpur, who prepared the forwarding documents of the Mudda Maal articles.
Pragaram (P.W.17) was associated in the recovery proceedings of the dead body and preparation of Panchnama Lash. He was declared hostile by the Public Prosecutor.
Champaram (P.W.18) was the SHO, Police Station Kotwali, Jalore, who registered the FIR and conducted investigation of the case. The witness stated that while he was undertaking investigation, the Constables Naarayan Lal and Dharmpal called him on mobile and shared an information that during the course of searching the fields in and around Elana, they reached an area near the field of Tejaram and saw freshly dug up soil and suspected that the dead body of Hanjaram could be (Downloaded on 03/06/2022 at 07:58:01 PM) (21 of 26) [CRLAD-67/2019] buried there. On this information, the SHO informed the S.P., Additional S.P. and C.O. Jalore and proceeded to the spot with Bagduram, ASI and the Circle Officer. The S.P., Jalore, Additional S.P., Jalore and the S.D.M. also came there. The land was dug up with the aid of a JCB. Some skin of feet and human hair showed up during the process of digging. Sahiram, A.S.I., was making an enquiry from the accused Tejaram, who had been brought to the police station for questioning. Tejaram gave an information to Sahiram that he and his family members had killed Hanjaram and buried the dead body. Sahiram allegedly brought Tejaram to the place of incident. The place pointed out by Tejaram was dug up with the aid of JCB and the dead body of Hanjaram was recovered. Formal steps of investigation were undertaken; the accused persons were arrested, recoveries were effected and thereafter charge-sheet came to be filed in the court concerned. In cross- examination, the witness admitted that the body was totally decomposed, but the brother Kisturaram identified it. The face was totally beyond recognition. The Investigating Officer claimed that Hanjaram was a simpleton and that he was killed so as to open way of re-marriage for his wife Suwa Devi. The assertion of the witness that Tejaram pointed out the place from where the dead body was dug out is totally false for the simple reason that the memorandum Ex.P/4 neither refers to the presence of Tejaram at the spot nor the same bears his signatures. The Investigating Officer claimed that Sahiram brought Tejaram to the place of incident. However, as has been noted above, Sahiram categorically stated that he did not proceed to the place, from where the dead body was recovered.
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(22 of 26) [CRLAD-67/2019] Kisturaram (P.W.19) was the first informant. He stated that Hanjaram was a simpleton and that is why his wife Suwa Devi and his in-laws did not like him. About a year before the incident, the in-laws had beaten up Hanjaram. The witness stated that he was not at his home. His father called and told him that Hanjaram had left the house saying that he was going to his in-laws' place, but was not traceable for the last 3 to 4 days. His father also told him that he had made an enquiry from Tejaram, who gave evasive replies regarding the whereabouts of Hanjaram. The witness came back to his village about 12 days after disappearance of Hanjaram. On the very same evening, Kanaram told him that he had seen the accused persons assaulting Hanjaram at their field. He got the report (Ex.P/40) drafted and submitted the same to the police. The police officers got the body recovered the day after the report was submitted. Heel of the dead body was split and that is why he could identify the same. Hanjaram's in-laws wanted to re-marry Suwa to some other man and that is why, they eliminated Hanjaram. In cross-examination, the witness admitted that the ground from where the dead body was recovered appeared to be freshly dug up and that is why they, suggested to the police that the body could be buried at that place. He agreed to the narration made in the Surat haal Lash Ex.P/4 that the facial features of the body were not recognizable.
Madaram (P.W.20) was the father of deceased Hanjaram. He stated that Hanjaram was a simpleton and that is why his wife did not like him. She would rarely stay at the matrimonial home and would often go away to her father's house. (Downloaded on 03/06/2022 at 07:58:01 PM)
(23 of 26) [CRLAD-67/2019] About 16 months ago, in-laws of Hanjaram called him on a false pretext that he should come and take Suwa with him. Hanjaram proceeded at 5 p.m. and did not return home for 4 days, on which, the witness asked Tejaram, who replied that Hanjaram had gone to Sonana Khetlaji for Darshans. Hanjaram did not return for many days, on which he called his other son Kisturaram. After Kisturaram came, Kanaram told him about the incident. The evidence of this witness is also hardly relevant except to the extent that he claimed that Suwa did not like Hanjaram.
After considering the entirety of evidence as above, it becomes clear that the theory of motive, which has been portrayed by the prosecution witnesses, is basically founded on an assumption that Hanjaram was a simpleton and thus, his wife, the accused Suwa Devi, did not like him. The family members of Suwa Devi wanted to re-marry her and that is why Hanjaram was called by the accused persons and was killed. However, the circumstance of motive in itself would not be sufficient to prove the case setup by the prosecution. Even if it is assumed that Suwa Devi did not have great liking for her husband, then too, it cannot be presumed that this fact by itself would give her a motive to kill Hanjaram. It is an admitted position that the families were involved in a cross relationship and hence, this vague theory of motive setup by the prosecution witnesses cannot be considered sufficient to hold that the accused had a cause to murder Hanja Ram.
Motive, in isolation cannot constitute evidence sufficient enough to bring home the charge of murder. For proving this (Downloaded on 03/06/2022 at 07:58:01 PM) (24 of 26) [CRLAD-67/2019] charge, the prosecution would have to lead clinching direct/ circumstantial evidence which could then be corroborated by evidence of motive.
It may be stated here that the prosecution tried to pin the important circumstance of recovery of Hanjaram's dead body on to the accused Tejaram. In this regard, it was claimed that Tejaram gave information (Ex.P/14) to the ASI Sahiram (P.W.5) and in furtherance thereof, the dead body was recovered. However, this theory of prosecution is totally falsified when we consider the document (Ex.P/4) i.e. the Surat Haal Lash which is the only memorandum pertaining to the recovery of the dead body. This document, neither refers to presence of the accused Teja Ram at the place of incident, nor does it bear his signature for other identifying mark. Thus, without any question, the recovery of the dead body cannot be held to have been effected in furtherance of the information allegedly provided by the accused Tejaram under Section 27 of the Evidence Act. It was claimed in the written report (Ex.P/40) that the accused made an extrajudicial confession in presence of Sawaji, Bawaraji and Jodhaji. As has been narrated above, Sawaji (P.W.4) did not utter a single word in his evidence that the accused made any extrajudicial confession before him. Bawaraji and Jodhaji were not examined in evidence. Thus, not an iota of evidence was led to substantiate the allegation of extrajudicial confession.
So far as the recoveries of lathis effected at the instance of the accused are concerned, suffice it to say that a bare perusal of the FSL reports (Ex.P/50, 51 and 52) makes it clear (Downloaded on 03/06/2022 at 07:58:01 PM) (25 of 26) [CRLAD-67/2019] that the prosecution could not lead evidence to establish the blood group of the deceased. Thus, the recovery of lathis also loses significance.
The most significant piece of evidence on which the prosecution relied upon was the testimony of the so called eye- witness Kanaram (P.W.10). We have thoroughly discussed his evidence (supra) and have found him to be a totally unreliable made up chance witness and hence his evidence deserves to be discarded. Once the evidence of Kanaram is excluded from consideration, apart from the theory of motive, there remains nothing on the record of the case so as to affirm the guilt of the accused. For the sake of repetition, it may be stated here that the circumstance of motive in isolation cannot be considered sufficient to affirm the guilt of the accused for the charge of murder.
Resultantly, we are of the firm view that the prosecution could not lead a reliable evidence to bring home the charges against the accused appellants and they are entitled to be acquitted by giving them the benefit of doubt. Thus, the impugned Judgment dated 25.02.2019 passed by the learned Sessions Judge, Jalore in Sessions Case No.15/2017, whereby the accused appellants Tejaram, Mangilal, Venaram, Smt. Sayati and Smt. Suwa Devi have been convicted and sentenced for the offences under Sections 148, 342/149, 323/149, 302 and 201 IPC is quashed and set aside. The appellants are acquitted of all the charges. They shall be released from prison forthwith, if not wanted in any other case.
The appeal is allowed accordingly.
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(26 of 26) [CRLAD-67/2019] However, keeping in view the provisions of Section 437-A CrPC, each of the appellants shall furnish a personal bond in the sum of Rs.40,000/- 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. (VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J Pramod/-
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