Rajasthan High Court - Jaipur
Ajay Sharma @ Mitthu @ Pramendra vs State Of Rajasthan Through Pp on 14 December, 2017
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
(1) D.B. Criminal Appeal No. 885/2015
Kuldeep Singh Son of Shri Keshar Singh By Caste Rajput, Aged
about 27 Years, Resident of Jhajhar, Police Station Nawalgarh,
District Jhunjhunu at present lodged in the Central Jail. Bikaner.
Accused Appellant
Versus
State of Rajasthan through the Public Prosecutor.
Non Petitioner With (2) D.B. Criminal Leave to Appeal No. 409/2015 State of Rajasthan through Public Prosecutor.
Appellant Versus
1. Yogesh Kumar Son of Ratan Lal, By Caste Brahamin, Aged 20 Years, Resident of Sabalpur, Police Station Sadar, Sikar, District Sikar.
2. Bhawani Singh Son of Madan Singh, By Caste Rajput, Aged 19 years, Resident of Sewad Chhoti, P.S. Nechawa, District Sikar.
3. Hitesh Acharya @ Kanha Son of Lalit Mohan Acharya, By Caste Brahamin, Aged 20 Years, Resident of Saharan Ki Gali, Bawadi Gate, Sikar P.S. Kotwali Sikar, District Sikar.
4. Sudhir Singh Son of Sumer Singh, By Caste Rajput, Aged 22 Years, Resident of Karigaron Ka Mohalla Sikar, P.S. Kotwali, District Sikar.
5. Jitendera Singh Son of Vikram Singh, By Caste Rajput, Aged 23 Years, Resident of Pura Badi, District Sikar presently Behind Ram Lila Maidan, P.S. Kotwali, District Sikar.
6. Mukesh Pilania Son of Shiv Bhagwan Pilania, By Caste Jat, Aged 21 Years, Resident of Chanderpura, Police Station Sadar Sikar, District Sikar.
7. Lokesh Son of Virendera Singh, Aged 22 Years, By Caste Rajput, Resident of Hasanpura Sikar at present Residing at Behind Ram Lila Maidan, P.S. Kotwali, District Sikar.
8. Praveen Son of Omprakash, By Caste Brahamin, Aged 21 Years, Resident of Ward No. 30, Behind Railway Rest House, Sikar, P.S. Kotwali, Sikar, District Sikar.
Accused Respondents With (2 of 26) [CRLA-885/2015] (3) D. B. Criminal Appeal No. 1078/2015 Ajay Sharma @ Mitthu @ Pramendra Son of Shri Babulal, By Caste Brahmin, Aged 23 Years, Resident of Jhajhad, Police Station Nawalgarh, District Jhunjhunu (Rajasthan). (At present in District Jail, Jhunjhunu) Accused Appellant Versus State of Rajasthan through the Public Prosecutor.
Respondent _____________________________________________________ For Appellant(s) : Mr. Ashvin Garg with Mr. Ajay Pratap Singh (In Appeal No. 885/2015) For Appellants: Mr. Vinay Pal Yadav (In Appeal No. 1078/2015) For Respondent(s) : Mrs. Sonia Shandilya, Public Prosecutor-
State.
For Complainant: Mr. O.P. Jhajharia, for the complainant. _____________________________________________________ HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE KAILASH CHANDRA SHARMA Judgment 14/12/2017 (Per Hon'ble Mr. Justice Mohammad Rafiq) Criminal Appeal No. 885/2015 and 1078/2015 have been filed by accused-appellants Kuldeep Singh and Ajay Sharma @ Mitthu @ Pramendra respectively against judgment and order dated 13.08.2015 passed by Additional Sessions Judge No. 2, Jhunjhunu (for short 'the trial court') whereby they have been convicted and sentenced in the manner as indicated below:
(3 of 26) [CRLA-885/2015] Accused-appellants Sections Sentence
1. Kuldeep Singh 148 IPC One year's rigorous imprisonment and fine of Rs. 500/-, in default of payment
2. Ajay Sharma @ of fine to additionally undergo two Mitthu @ Pramendra months' imprisonment.
323/149 Six months' rigorous imprisonment and IPC fine of Rs. 200/-, in default of payment of fine to additionally undergo one month's imprisonment.
325/149 Three year's rigorous imprisonment and IPC fine of Rs. 1,000/-, in default of payment of fine to additionally undergo three months' imprisonment.
302/149 Rigorous life imprisonment and fine of IPC Rs. 5,000/-, in default of payment of fine to additionally undergo six months' imprisonment.
All the sentences were ordered to run concurrently. State of Rajasthan has also filed Criminal Leave to Appeal No. 409/2015 challenging the aforesaid judgment passed by the trial court to the extent of acquitting the accused- respondents No.1 to 8 from the charges framed against them.
The brief facts of the case are that on 13.10.2010 complainant Gopal Singh (P.W.3) submitted written report (Exhibit P-1) to Shri Deepak Kumar, S.l. (P.W.14) at S.K. Hospital, Sikar inter-alia alleging that he along with Sultan (P.W.1) and his cousin Virendra Singh were going on 12.10.2010 at 9.00 P.M. from their shop to house. On the way, just ahead of Sati Mata Mandir, Jhajar, accused Pramendra alias Mithu, Shiv Pratap Singh and their companions attacked his cousin Virendra Singh. He and Sultan tried to intervene, but since the (4 of 26) [CRLA-885/2015] accused persons were having iron rods and 'danda', they could not save him. Accused made assault from iron rod on the head of Virendra Singh, due to which smeared with blood he fell down on the road and died. These persons assaulted him and Sultan from 'dandas' due to which Sultan received injury on leg. These persons came from a Maruti car and after killing Virendra, they ran away in the same car. On the basis of this report, the police registered F.I.R. No. 287/2010 (Exhibit P-23) for offence under Sections 302 read with 34 IPC at Police Station Nawalgarh and started investigation. During the course of investigation, site was inspected, site plan was prepared, post mortem of the dead body was got conducted, statements of witnesses were recorded, the accused persons were arrested. On conclusion of investigation, the police submitted charge-sheet against accused-appellants Kuldeep Singh and Ajay Sharma, Yogesh Kumar, Bhawani Singh, Hitesh Acharya, Sudhir Singh, Jitendra Singh, Mukesh Pilaniya, Lokesh, Praveen and juvenile offender Biju alias Vijay Kumar for offences under sections 148, 323/149, 325/149 and 302/149 lPC. Co- accused Biju alias Vijay Kumar was separately tried by the Juvenile Justice Board. Accused-appellants herein, with remaining accused persons were tried by the Additional Sessions Judge No.2, Jhunjhunu. Charges for above-mentioned offences were framed by the trial court against accused-appellants and other accused- persons, which they denied and claimed trial. The prosecution examined 17 witnesses and got exhibited 43 documents. Thereafter, the accused-appellants along with other accused persons were examined under Section 313 Cr.P.C. wherein they (5 of 26) [CRLA-885/2015] pleaded innocence. In defence, no evidence was produced, however, five documents were got exhibited. On conclusion of trial, the trial court vide judgment and order dated 13.08.2015, while acquitting accused-respondents No. 1 to 8 (in Criminal Leave to Appeal No. 409/2015), convicted and sentenced the accused-appellants in the manner as indicated above. Hence, these two appeals and criminal leave to appeal.
Mr. Ashvin Garg, learned counsel appearing on behalf of accused-appellant Kuldeep Singh in Criminal Appeal No. 885/2015 argued that the appellant was not named in the FIR which was registered on the basis of written report (Exhibit P-1) submitted by Gopal Singh (P.W.3), who had stated therein that he was in the company of the deceased Virendra when he was assaulted. He also admitted in the Court that Kuldeep is resident of his own village and that he was known to him from before. Therefore, there was no reason for him for not naming the accused-appellant in the written report if he actually participated in the incident. It is for the first time that he named the accused-appellant in his police statement recorded under Section 161 Cr.P.C. (Exhibit D-1). Even in the police statement, he has not assigned any role to the accused-appellant. While in the written report, he mentioned name of one Shiv Pratap Singh son of Narendra Singh, but in police statement, he omitted his name and mentioned name of accused-appellant. This was done by him after due deliberations and consultations. Learned trial court failed to appreciate that there were lot of exaggerations and improvements in the statements of alleged eye witnesses namely Sultan (P.W.1);
(6 of 26) [CRLA-885/2015] Dharamveer (P.W.2); Gopal Singh (P.W.3); Nathmal (P.W.4) and Vikram (P.W.5). Therefore, the evidence qua accused-appellant is not cogent and credible and suffers from numerous contradictions. Learned trial court itself has not believed testimony of these eye witnesses and acquitted eight co-accused. Therefore, conviction of the accused-appellant on the same set of evidence is bad in law.
Learned counsel argued that Gopal Singh (P.W.3) in his examination in chief stated that Kuldeep Singh was having hockey and when Virendra fell on the ground, Kuldeep Singh had hit on his ribs by hockey and then also inflicted a hockey blow on leg of Sultan. This kind of allegation does not find place in the written report and even in his police statement of (Exhibit D-1). In his police statement, Gopal Singh alleged that Kuldeep was having hockey stick with him but did not allege that Kuldeep inflicted blows of hockey stick on ribs of the deceased and legs of Sultan. In court statement, Gopal Singh (P.W.3) alleged that accused- appellant along with Mitthu ran away on motor cycle towards Nawalgarh whereas this was not alleged by him in his police statement. Learned counsel argued that Gopal Singh in cross- examination stated that he himself authored written report but in later part of his cross-examination he alleged that he himself did not write the written report but got the same written from someone, to whom he disclosed the name of Kuldeep Singh as assailant but he could not explain why he had not mentioned name of Kuldeep Singh therein. Conduct of this witness shows that he was not an eye witness and has concocted the entire story.
(7 of 26) [CRLA-885/2015] In cross-examination, this witness admitted that house of Virendra was situated near by, but he did not go to inform any of his family members. Referring to statement of Sultan (P.W.1), learned counsel argued that Sultan stated that he waited for a jeep for ten minutes. If that was so, then they had ample time to inform family members of the deceased. Sultan in examination in chief stated that he was assaulted by Kuldeep Singh as a result of which he fell on one side but in cross-examination he submitted that he did not receive any injury. Learned counsel for the appellant argued that when Gopal Singh (P.W.3) was confronted with his police statement and written report, he failed to give any explanation.
It is argued that conduct of Sultan (P.W.1) is also unnatural. While he stated that he took the deceased to hospital at Nawalgarh and Nathmal, Vikram and Raghuji also accompanied him but Gopal Singh (P.W.3) had not named Raghuji as the one accompanying the deceased to hospital. As per the prosecution case, Sultan (P.W.1) also sustained injury and this witness did not show his injury to any doctor at any hospital either at Nawalgarh or Sikar till the post mortem of the deceased was conducted. In cross-examination he admitted that he spent whole night in the hospital at Sikar but did not inform the police about his injuries and did not inform anybody thereabout. Learned counsel for the appellant argued that if statement of Sultan (P.W.1) is read with statement of Nathmal (P.W.4), it would be evident that both are not speaking truth and their testimony do not find corroboration. In cross-examination, Nathmal (P.W.4) stated that Sultan due to 'navratra' had gone to his house around 5-6 P.M. but in (8 of 26) [CRLA-885/2015] examination in chief, Sultan had stated that immediately after the incident, when he reached near the deceased, Nathmal, Raghu and Vikram were also following him. Vikram had not supported this version of Sultan because he has stated that while he was taking meals in his house, he heard sound of hue and cry and then reached the place of incident.
Learned counsel argued that Dharamveer (P.W.2) is also not a reliable witness. Tone and tenor of his statement shows that he has cooked up a false story which does not find corroboration from the statements of Sultan (P.W.1) and Gopal Singh (P.W.3). He did not talk to anyone of them at the place of incident. He also did not accompany the deceased to hospital and rather returned back. He did not give any information to the police. His name does not find place in the FIR as eye witness. Dharamveer rather stated in cross examination that he did not go to the house of Virendra or Sultan to inform about the incident. Nathmal (P.W.4) and Vikram (P.W.5) are also not eye witnesses and are planted witnesses. Learned trial court failed to scrutinize their testimony. Nathmal (P.W.4) has claimed that he and Vikram were coming together but this fact has not been corroborated by Vikram Singh (P.W.5). They were examined by the police as late as 22.10.2010. Vikram Singh has stated that Sultan left Nawalgarh and did not accompany them at Jaipur. This statement is not corroborated. Learned counsel submitted that Deepak Kumar (P.W.14), the Investigating Officer in cross examination stated that no other name except that of Sultan has been mentioned as eye witness in the report. Presence of Nathmal and (9 of 26) [CRLA-885/2015] Sultan was not shown at the place of occurrence. Thus, a false story of motor cycle and Ajay Sharma and Kuldeep fleeing from the place of incident has been cooked up whereas there is no mention thereabout either in the written report or FIR. It is only in police statement of Sultan (P.W.1) who stated that one motor cycle was lying there. He rather stated that all the accused fled away from there in Maruti Van.
Learned counsel argued that recovery of hockey stick (Exhibit P-13) from accused-appellant Kuldeep Singh has not been proved beyond reasonable doubt as no independent eye witness has been produced in support thereof. Both the attesting witnesses were police constables who were subordinate to investigating officer. Mulayam Singh (P.W.8), the attesting witness has admitted in cross-examination that at the time of recovery there were only police personnel. The recovery was made from the house where joint family was residing. None of the members of the house has been made attesting witness. Deepak Kumar (P.W.14), investigating officer has stated that hockey stick did not contain any name. Sultan in his police statement has not made specific allegation of causing injury by hockey stick on the person of deceased. Similarly, Dharamveer (P.W.2) has also not made such allegation. Recovery of hockey has thus been made falsely. Although, hockey recovered vide Exhibit P-13 was found positive for presence of human blood but its group could not be determined. Therefore, it cannot be ruled out that blood on the hockey could not be that of the deceased.
(10 of 26) [CRLA-885/2015] It is argued that there was inordinate delay in filing FIR. The incident took place in the night and police reached the place of occurrence immediately thereafter. Deepak Kumar (P.W.14) has stated that Narain Singh, In-charge of the police station and he himself went to the place of incident, but did not record any statement. Alleged FIR was registered on 13.10.2010 whereas it was sent to Magistrate on the next day, i.e. 14.10.2010 whereas distance between the police station and the Court is hardly one kilometer. Therefore, the FIR was result of fabrication. Learned counsel in support of his arguments relied upon the judgments of the Supreme Court in Mallanna Vs. State of Karnataka, (2007) 8 SCC 523 and Sajjan Sharma Vs. State of Bihar, AIR 2011 SC 632; State Vs. Kriparam, (2003) 12 SCC 675; Kansa Vs. State of Orrisa, AIR 1987 SC 1507; Mst. Dalbir Kaur & Others Vs. State of Punjab, AIR 1977 SC 472 and Bakshish Singh Vs. The State of Punjab, AIR 1971 SC 2016.
Mr. Vinay Pal Yadav, learned counsel appearing on behalf of the accused-appellant Ajay Sharma @ Mitthu @ Pramendra in Appeal No. 1078/2015 argued that the impugned Judgment & order dated 13.08.2015 passed by learned trial court is legally not sustainable being contrary to the provisions of law as also the facts of the present case. The learned trial court has committed serious error of law as well as fact in convicting and sentencing the accused-appellant for offence under Sections 148, 323/149, 325/149, 302/149 IPC. No such alleged offence is made out and proved against the accused-appellant from the bare (11 of 26) [CRLA-885/2015] perusal of the evidence which came on record during investigation and produced by the prosecution. It is submitted that the prosecution has completely failed to prove the guilt of the accused-appellant beyond all reasonable doubt. The learned trial court has further failed to consider that while appreciating the evidence in a criminal case, the Court should keep in view the two cardinal principles that the guilt against the accused must be proved beyond reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by him as it lay on the prosecution. The burden can be discharged by the accused merely by showing the preponderance of probability in favour of the plea taken by him. There are several infirmities and contradictions in the statements of the prosecution witnesses and therefore no reliance can be placed upon the testimony of such witnesses. The conviction based on such evidence is not sustainable and the same is liable to be quashed and set aside. It is argued that statements of the prosecution witnesses are inconsistent, contradictory and also suffer from infirmities. The witnesses of the prosecution have suppressed the genesis of the occurrence and have not corroborated the story of the prosecution. Therefore, the prosecution witnesses cannot be treated as credible and reliable witnesses. In such circumstances the conviction, on the basis of statements of such witnesses, is not sustainable in the eyes of law and same is liable to be quashed and set aside. The learned trial court has failed to consider that in this case the report was submitted by the complainant after considerable delay of 10 hours and in the said report, 04 accused (12 of 26) [CRLA-885/2015] persons were shown involved in the alleged crime. The accused- appellant has not been named in the FIR as an accused. He has no concern with the alleged crime and there is no evidence available on record to connect him with the alleged crime but during investigation the police has falsely implicated the accused- appellant without any connecting or corroborating evidence.
Learned counsel argued that the trial court has further failed to consider that as per F.I.R., the actual accused was Shiv Pratap Singh Son of Nagendra Singh but against the said accused no charge sheet has been filed by the police, thus the entire prosecution story becomes doubtful. The learned trial court has further failed to consider that in the F.I.R. there is no mention regarding the number of Maruti Car and the entire investigation was done before registration of the F.I.R. The learned Trial Court has further failed to consider that there are serious contradictions in the statements of the witnesses regarding the light at the place of alleged incident. Moreover, there is no mention regarding motor cycle in the first information report and further the police has not conducted identification parade. Thus, conviction of the accused appellant is bad in law. The learned trial court has erred in not considering that the prosecution has completely failed to prove motive of the accused for committing murder of deceased Virendra Singh. In the facts and circumstances of the case and from a bare perusal of the material and evidence available on record and from a bare perusal of the impugned Judgment, it is clear that the learned trial court has neither properly considered nor critically examined the statements of the prosecution (13 of 26) [CRLA-885/2015] witnesses and discussed the same in a general and routine manner and has after taking into consideration the few words from their statements, has passed the impugned judgment of conviction. This method of the learned trial court is against the criminal jurisprudence. Thus, conviction of the accused appellant is bad in law. It is argued that the learned trial court has not properly appreciated the material and evidence available on record in its true sense and has passed the impugned judgment of conviction and sentence in a cursory manner, which is liable to be quashed and set aside. The findings arrived at by the learned trial court are vitiated due to misreading/non reading of the material evidence in support of the appellant as well as on mere surmises and conjectures. It is submitted that the findings arrived at by the learned trial court are further vitiated as no critical appreciation and analysis has been made by the learned trial court.
Learned counsel argued that when the eye witnesses were also attesting witnesses to inquest report (Exhibit P-2), there was no reason why they did not mention therein that accused- appellant was one of the assailants. It clearly shows that story involving the appellant was subsequently concocted. Deepak Kumar (P.W.14), Investigating Officer stated that he received information about the incident and if it was so, why entry was not made in the rojnamcha which clearly shows that genesis of the incident has been suppressed. Sultan (P.W.1) stated that Ambulance 108 was called, therefore, there was no reason why the police could not be called. Injury report of Sultan is highly (14 of 26) [CRLA-885/2015] doubtful as it is not clear as to on which part of the body, he sustained injuries. In the written report, Gopal Singh (P.W.3) alleged that Pramendra @ Mitthu and Shiv Pratap Singh and two others attacked Virendra Singh and they could not save him because these people had iron rods and other weapons. They caused injuries on the head of the deceased and he started profusely bleeding and fell on the ground. Learned counsel argued that conduct of Gopal Singh (P.W.3) is highly unnatural because he did not give the information about the incident to the police till next day in the morning. The trial court has therefore rightly disbelieved him in respect of many of the accused. It is argued that motive of the accused-appellant has not been established. In the post mortem report, dimension of head injury has been shown as 5x4 cm bone deep with width of 4 cm whereas as per seizure memo of iron rod (Exhibit P-11), width of the iron rod was only 2 cm. It was therefore not possibly to cause injury in the width of 4 cm on the head of the deceased. It is argued that trial court could not have convicted two accused-appellants with the aid of Section 149 IPC which requires that there should be minimum five accused for forming unlawful assembly. The trial court has found that as many as eight were falsely implicated that would leave only two accused and they could hardly constitute an unlawful assembly for justifying their conviction with the aid of Section 149 IPC.
Learned counsel for the accused-appellants argued that Sultan (P.W.1); Dharamveer (P.W.2) and Nathmal (P.W.4) have admitted that the incident took place suddenly, therefore, present (15 of 26) [CRLA-885/2015] case would fall in Exception 4 to Section 300 IPC and offence of the accused-appellants would not travel beyond scope of Section 304 Part II IPC.
Mrs. Sonia Shandilya, learned Public Prosecutor and Mr. O.P. Jhajharia, learned counsel for the complainant opposed the appeals filed by the accused-applicant. Learned Public Prosecutor while arguing in criminal leave to appeal filed by the State argued that the judgment and order dated 13.08.2015 passed by the learned trial court is contrary to law and against the facts on record to the extent of acquittal of the accused respondents as such the same is liable to be quashed and set aside. From the bare perusal of the statements of prosecution witnesses the charges levelled against the accused respondents are well proved, hence the accused respondents are also liable to be convicted for the charges levelled against them. The learned trial court has not considered the judgments which were cited by the prosecution and the same are completely applicable in the facts and circumstances of the case in hand, hence the judgment and order passed by the learned trial court is contrary to law and against the facts on record to the extent of acquittal of the accused respondents, as such the same is liable to be quashed and set aside. From the bare perusal of the documents which were exhibited by the prosecution the charges levelled against the accused respondents are well proved, hence the judgment and order passed by the learned trial court is liable to be set aside to that extent. The learned trial court has not properly considered the facts and circumstances of the case and the material available (16 of 26) [CRLA-885/2015] on record which is clear from the impugned judgment. Thus, the judgment of the learned trial court is illegal and perverse. From a bare perusal of the impugned judgment, it is clear that the learned trial court has not properly considered the statements of prosecution witnesses. Without examining the statements of these witnesses, the learned trial court acquitted the accused respondents. The impugned judgment shows that the learned trial court took few lines of the statements of these witnesses from here and there and afterwards, on superficial grounds acquitted the accused respondents. Thus the impugned judgment of acquittal of the accused respondents is illegal and perverse.
It is argued that from the impugned judgment it seems that the learned trial court discussed the short comings of the investigating agency and on the basis of that acquitted the accused respondents. Thus, in these circumstances, acquittal of the accused respondents is illegal and perverse. The investigating officer has left so many lacunas in the investigation. It is well settled law that due to some lacunas on the part of the investigating Officer no accused can be acquitted on this ground. Thus in these circumstances, acquittal of the accused respondents is illegal and perverse. There are circumstantial evidences also to show that the accused respondents were the persons who committed the offence. Thus in these circumstances, the learned trial court has committed an illegality in acquitting the accused respondents. The learned trial court has adopted wrong procedure in appreciating the evidence of the prosecution witnesses due to which the ease of the accused has not been properly considered.
(17 of 26) [CRLA-885/2015] Thus in these circumstances the acquittal of the accused respondents by the learned trial court is illegal and perverse. The learned trial court has neither discussed the statements of the prosecution witnesses nor discussed the material available on record. Thus the learned trial court took some portion of the statements of the prosecution witnesses and without considering even those portions, acquitted the accused respondents. Thus in these circumstances, the acquittal of the accused respondents is illegal and liable to be set aside. The learned trial court has not properly considered the relevant facts and circumstances of the case and has erred in acquitting the accused respondents from all the charges. The learned trial court has not properly considered this aspect of the case that the valid procedure as prescribed under the law has not been followed by it and thus acquittal of the accused respondents is bad in law. It is therefore prayed that leave may be granted to the State to file appeal against acquittal of the accused-respondents and appeals filed by the accused appellants namely Kuldeep Singh and Ajay Sharma @ Mitthu @ Pramendra be dismissed.
We have bestowed our anxious consideration to rival submissions and carefully examined the material on record of the case.
We may at the outset record that thorough analysis of the evidence does not in any manner show any infirmity in the impugned judgment in so far as trial court has recorded finding of acquittal of accused-respondents. The trial court while applying the rule of separating grain from chaff acquitted eight accused (18 of 26) [CRLA-885/2015] with respect to whom it found version of the prosecution witness being exaggerated one and recorded finding of their false implication and involvement. We are, therefore, not inclined to grant leave to State so far their acquittal is concerned. However, what we have to find on scrutiny of the findings recorded by the trial court is that whether or not it was justified in recording conviction of the accused-appellants for the offence of murder. It is trite that even if part deposition of a witness, which appears to be exaggerated and does not inspire confidence, but if remaining part inspires confidence, it can be believed to that extent or at least could be taken into consideration for the purpose of corroboration. It is also settled principle of law that part testimony of even hostile witness can be believed. Though, in the present case witnesses have not turned hostile. Five witnesses have been believed to be eye witnesses in the present case, one of whom, Sultan (P.W.1) happens to be injured eye witness. His medical report is Exhibit P-21 which indicates that he received two injuries, out of which one was diffused swelling in the size of 15 cm x 10 cm on right foot and second was diffused swelling in the size of 10 cm x 8 cm on right ankle joint. When he was subjected to X-ray examination, it was found that there was fracture of calcaneus of ankle of his right feet. He has clearly stated that after seeking the condition of Virendra Singh who, was hit by iron rod on his head by Mitthu and thereafter hockey sticks on his ribs by Kuldeep Singh, he was so perturbed and terrified that he did not bother for his own injuries though he was present in the hospital at Sikar in the whole night. His medical examination took (19 of 26) [CRLA-885/2015] place on the following day at 4-4.30 P.M. at Nawalgarh. This explanation of the witness appears to be quite natural and it cannot be said that he was not speaking truth and his conduct was so unnatural that he could not be accepted as an eye witness and for that reason he should be disbelieved.
Sultan Singh (P.W.1) was named by informant Gopal Singh (P.W.3) as an eye witness, in his written report (Exhibit P-
1), who categorically stated that he along with Raghunath Singh, Sultan, deceased Virendra Singh was coming from his shop at 9.00 P.M. on 12.10.2010 when the accused Ajay Sharma @ Mitthu, Ship Pratap and two others attacked Virendra Singh. Gopal Singh also stated that he as well as Sultan both tried to save Virendra Singh, who was beaten by iron rod and dandas. Accused inflicted iron rod blow on his hand as a result of which he fell on the road and immediately died. Accused also hit him, i.e. Gopal Singh and Sultan by danda. Sultan sustained injuries on his legs. Sultan Singh was medically examined on 13.10.2010 at 4.00 P.M. and his X-ray examination was conducted on 14.10.2010, which indicates that he sustained fracture of calcaneus bone of ankle of right leg. This provides corroboration in the written report that Sultan Singh was also hit on the leg by accused. Therefore, there can be no question of not believing him. Although it is another issue that his testimony has to be subjected to due circumspection considering that the trial court has partly disbelieved him. Sultan Singh (P.W.1) in his statement has alleged that Mitthu, i.e. Ajay Sharma @ Mitthu inflicted blow of iron rod on the head of Virendra and Kuldeep inflicted two blows (20 of 26) [CRLA-885/2015] of hockey stick on his ribs. When he tried to intervene and save Virendra, Kuldeep inflicted a stick blow on his right leg. In cross- examination also, he has repeated same allegation. When he was confronted with his police statement (Exhibit D-2) as to why no specific allegation was made therein and as to why he did not allege that Mitthu had iron rod and Kuldeep had hockey stick, he stated that he told the police about this fact but why the police had not mentioned so, he could not say. When we see his police statement, we find that his police statement was recorded on 13.10.2010, i.e. on the same day in which he stated that 8-10 persons alighted from Maruti Car, who had iron rod, lathi and hockey and encircled Virendra Singh. Mitthu @ Pramendra @ Ajay stated that Virendra had slapped him and then all of them started attacking Virendra Singh. Virendra Singh fell on the road after receiving injury by lathi on his head. Then, all started kicking him. He identified Kuldeep, friend of Mitthu in the head light of car. Kuldeep inflicted a lathi blow on his leg. He fell on the side of road. On hearing hue and cry, several passersby came there.
Dharamveer (P.W.2) has alleged that accused had encircled the deceased. Mitthu had iron rod and Kuldeep had a stick. Mitthu inflicted iron rod blow on the head of the deceased and Kuldeep inflicted 2-3 blows of stick on his ribs. This witness was confronted with his police statement (Exhibit D-3) as to why he did not say so therein, he stated that he told this fact to the police but he could not say, why they did not mention so. Sultan (P.W.1) was also confronted with his police statement (Exhibit D-
2) and was required to explain in his cross-examination as to why (21 of 26) [CRLA-885/2015] he did not mention that Mitthu inflicted iron rod blow on the head of the deceased and Kuldeep inflicted stick blow on his ribs, all that he has stated that he mentioned this fact to the police but he could not say why the police did not mention so in his police statement (Exhibit D-2). Gopal Singh (P.W.3), informant has supported the written report submitted by him and also additionally named many other accused and stated that Mitthu inflicted iron rod blow on the head of the deceased Virendra Singh, as a result of which he fell on the ground and thereafter, Kuldeep inflicted hockey blow on his ribs. Even this witness was confronted with his written report (Exhibit P-1), but he could not explain as to why he did not specifically name Kuldeep on allegation of causing injury on ribs of the deceased Virendra Singh and leg of Sultan, he rather stated that he himself did not scribe the written report, but got the same written by someone else and he disclosed all this to him but, he could not explain, why he did not mention the same in the report. Even when he was confronted with his police statement (Exhibit D-1), he could not explain as to why therein he did not mention that Kuldeep inflicted hockey blows on the ribs of the deceased when he fell on the ground.
Nathmal (P.W.4) has stated that Ajay @ Mitthu inflicted iron rod blow on the head of the deceased and Kuldeep inflicted stick blow on his ribs. Thereafter all started beating him by sticks and dandas. Sultan tried to mediate but Kuldeep inflicted stick blow on his leg. His version is consistent with what he told to the police in his statement (Exhibit D-4) recorded under Section 161 (22 of 26) [CRLA-885/2015] Cr.P.C. Though his police statement was recorded on 22.10.2010, but for this delay he explained in his cross-examination that he had gone out of his native place for earning his livelihood and when he returned back on 20.10.2010, his family members informed him that police personnel had called him for recording statement. Thereafter, he went to police station on his own. Vikram Singh (P.W.5), whose police statement (Exhibit D-5) was recorded on 22.10.2010 has also made similar allegations against Ajay @ Mitthu of causing blow by iron rod on the head of the deceased and hockey blows on the ribs of the deceased by Kuldeep. Even this witness stated that his police statement was recorded on 22.10.2010. Mulayam Singh (P.W.8) has proved recovery of hockey stick at the instance of accused-appellant Kuldeep vide memo (Exhibit P-13) and site plan of place of recovery was Exhibit P-14. Dr. Shaukat Ali (P.W.9) has proved post mortem report (Exhibit P-17) according to which cause of death was due to shock and subdural hematoma and brain injury. Mahesh Kumar (P.W.10), Radiographer has proved X-ray Plate of injured Sultan (Exhibit P-18). Daud Khan (P.W.11) has proved deposit of five sealed packet with State Forensic Laboratory against receipt (Exhibit P-20), which were obtained from the Malkhana. Dr. Suresh Kumar (P.W.12) has proved report of injury report of Sultan (Exhibit P-21), according to which injury no. 1 was of grievous nature. Deepak Kumar (P.W.14), Investigating Officer has proved various stages of the investigation. He has admitted in the cross examination that apart from Sultan, no other name was mentioned in the written report (Exhibit P-1) as (23 of 26) [CRLA-885/2015] eye witness, but in later part of his cross examination he stated that Gopal Singh did not show presence of any other person at the place of occurrence, except presence of Nathmal and Sultan.
Analysis of evidence aforesaid thus clearly shows that while allegation against Ajay Sharma @ Mitthu @ Pramendra is consistent right from the stage of lodging of first information report and thereafter in police statements and court statements of various witnesses and initial police statements recorded on 13.10.2010, but name of accused-appellant Kuldeep Singh had figured for the first time during the course of investigation when police statements of two witnesses, namely Nathmal (P.W.4) and Vikram Singh (P.W.5), i.e. Exhibit D-4 and Exhibit D-5 respectively were belatedly recorded on 22.10.010, i.e. ten days after the incident. At the earliest stage when statements of Gopal Singh (Exhibit D-1); Sultan (Exhibit D-2) and Dharamveer (Exhibit D-3) were recorded on 13.10.2010, therein allegation against Kuldeep was only of causing injury to Sultan on his leg. And this also remains the fact that informant Gopal Singh (P.W.3) and other witnesses have admitted that Kuldeep was resident of their own village and was known to them before. If this was the fact, there was no reason why Kuldeep should not have been named in the written report about causing injury on the ribs of the deceased and on the leg of Sultan Singh. Though, Gopal Singh (P.W.3) in his written report alleged that accused were armed with iron rod and dandas and that accused inflicted blow of iron rod on the head of the deceased as a result of which he fell on the road and died. The accused also inflicted danda blows on him and Sultan, as a (24 of 26) [CRLA-885/2015] result of which he sustained injury on his leg. Therefore, so far as accused-appellant Ajay Sharma @ Mitthu @ Pramendra is concerned, statements of prosecution witnesses qua him are found to be substantially consistent in the earliest stage when police statements of Gopal Singh (P.W.3), Sultan (P.W.1) and Dharamveer (P.W.2) were recorded, but the same cannot be said about accused-appellant Kuldeep with respect to whom allegations are found exaggerated at much later stage of the investigation. He has, therefore, in our considered opinion, made out a case for grant of benefit of doubt to him, although, conviction of the accused-appellant Ajay Sharma @ Mitthu @ Pramendra deserves to be sustained.
Contention that Pramendra @ Mitthu was not named as Ajay Sharma in the written report (Exhibit P-1), but only named as Premendra @ Mitthu, therefore, could be a case of misidentity, is liable to be rejected because Ajay Sharma was also known as Mitthu, a fact mentioned by all the prosecution witnesses. Besides, his identity has also been fixed in the written report (Exhibit P-1) by the informant Gopal Singh (P.W.3) by mentioning name of his father Babu Lal. There is no doubt that it is the same Ajay Sharma. Moreover, mere non mention of the names of the assailants in the inquest report by the attesting witnesses, who were also eye witnesses to the incident would not be fatal to the prosecution case as the purpose of inquest report is entirely different. Law does not require that eye witnesses account with reference to role of different accused should also be recorded in the inquest report.
(25 of 26) [CRLA-885/2015] Coming now to alternative argument, Exception 4 to Section 300 IPC shows that not only the incident should take place in a sudden fight but it should also happen in the heat of passion where the accused must have caused the fatal injury at the spur of the moment. For a situation like this, there should be active participation of both the parties. Facts of the present case are not like that. There was one sided attack by the accused on the deceased in the present case and no active role was played by the deceased or any of his companions, which is not even the case of the defence. Thus, the evidence of the present case does not attract ingredients of Exception 4 to Section 300 IPC. Besides, even otherwise, the deceased sustained multiple injuries and therefore, it cannot be held that accused-appellants did not take undue advantage of the situation.
In view of above discussion, Criminal Appeal No. 885/2015 filed by accused-appellant Kuldeep Singh is allowed. He is acquitted of the charges framed against him. He is in jail and be set at liberty forthwith, if not required to be detained in any other case. Criminal Appeal No. 1078/2015 filed by accused- appellant Ajay Sharma @ Mitthu @ Pramendra is dismissed. His conviction and sentence awarded by the trial court is affirmed. Criminal Leave to Appeal No. 409/2015 filed by the State of Rajasthan is dismissed.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Kuldeep Singh is directed to forthwith furnish a personal bond in the sum of (26 of 26) [CRLA-885/2015] Rs.20,000/-, 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 Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
Registry is directed to place a copy of this judgment on record of connected files.
(KAILASH CHANDRA SHARMA)J. (MOHAMMAD RAFIQ)J. Manoj