Rajasthan High Court - Jodhpur
Malta Ram & Ors vs State on 14 September, 2016
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
[1 of 27]
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
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CRIMINAL APPEAL (CRLA) No. 716 of 2006
1. Malta Ram S/o Sh. Jogendra Ram, by caste
Chajgaria, Resident of Ward No.38, Ashok Nagar-
B, Chajgariyo-Ka-Mohalla, Sri Ganganagar.
2. Ranjeet @ Jeete S/o Jagram, by caste Chajgariya,
Resident of Ward No.38, Ashok Nagar-B,
Chajgariyo-Ka-Mohalla, Sri Ganganagar.
V/S
STATE OF RAJASTHAN
Date of Judgment: 14th September, 2016
HON'BLE MR. GOPAL KRISHAN VYAS,J.
HON'BLE MR. G.R. MOOLCHANDANI,J.
MR. M.K. Garg ]
Mr. Rajesh Saharan ]- for the appellants.
Mr. H.K. Jain ]
MR. C.S. OJHA, PP for the State.
JUDGMENT
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BY THE COURT (Per Hon'ble Mr. Justice G.K. Vyas):
The instant criminal appeal has been filed by three appellants, namely, Maltaram, Ranjeet @ Jeete and Pyara Singh, against the judgment dated 31st July, 2006, passed by Additional Sessions Judge No.1, Sri [2 of 27] Ganganagar, in Session Case No.8/2005, by which the learned trial court convicted all the accused appellants for committing offence under Section 302, 302/149, 148, 323/149 and 327 of IPC and Section 4/25 (1) (B) (6) of the Indian Arms Act, and sentenced them as infra: -
Appellant No.1- Maltaram Under Section 302/149 IPC Imprisonment for Life and fine of Rs.1,000/-. In default of payment of fine to further undergo one month‟s S.I. Under Section 148 IPC Imprisonment for one year S.I. and fine of Rs.500/- in default of payment of fine, to further undergo one month‟s S.I. Under Section 323/149 IPC Imprisonment for six months and fine of Rs.200/-
and in default of payment of fine, to further undergo 15 days‟ S.I. Under Section 327 IPC Imprisonment for one year S.I. and fine of Rs.200/-
and in default of payment of fine, to further undergo 15 days‟ S.I. Appellant No.2- Ranjeet @ Jeete Under Section 302 IPC Imprisonment for Life and fine of Rs.1,000/-. In default of payment of fine to further undergo one month‟s S.I. [3 of 27] Under Section 148 IPC Imprisonment for one year S.I. and fine of Rs.500/- in default of payment of fine, to further undergo one month‟s S.I. Under Section 323/149 IPC Imprisonment for six months and fine of Rs.200/-
and in default of payment of fine, to further undergo 15 days‟ S.I. Under Section 327 IPC Imprisonment for one year S.I. and fine of Rs.200/-
and in default of payment of fine, to further undergo 15 days‟ S.I. Under Section 4/25 (1) (B) (6) of Arms Act Imprisonment for one year S.I. and fine of Rs.500/-
and in default of payment of fine, to further undergo 15 days‟ S.I. This criminal appeal was filed against the judgment dated 31.07.2006 by three appellants, Maltaram, Ranjeet @ Jeete and Pyara Singh, but during pendency of this appeal, appellant No.3, Pyara Singh S/o Jogendra Ram, expired, therefore, vide order dated 07.09.2016, the present appeal qua appellant No.3, Pyara Singh, was dismissed as abated, and final arguments for other two accused appellants, Maltaram and Ranjeet @ Jeete, were heard.
[4 of 27] It emerges from the facts of the case that statements (Exhibit-P/5) of injured complainant, Subhash Khichi (PW.4) were recorded at Orthopedics Ward of Govt. Hospital, Sri Ganganagar at 09.15 PM on 08.01.2005 by the S.H.O., Police Station- Jawahar Nagar, Sri Ganganagar, he was under treatment, in which it was alleged by him that today in the evening at 5‟O clock, I was sitting at the shop of Ramlal, owner of M/s Fauji Hair Dresser, situated at SSD Road, the accused, Ranjeet @ Jeete and Radheyshyam @ Kaliya came there and made demand of money from Ramlal, which he (Ramlal) refused. Upon refusal, both the persons went back while giving threat that wait we are coming back. After some time, Ranjeet @ Jeete, Radheyshyam @ Kaliya, Maltaram, Pyara Singh, Sikandar, Sunny and some 2-3 other persons, belonging to "Chhajgariya" community, having sword and Lathi(s) in their hands came there and they caught hold of Ramlal and while causing injury, tried to lift him, at that time, complainant, Subhash Khichi and his brother, Naresh, came there and made efforts to save him. As per allegation, the accused Pyara Singh inflicted injury by „Lathi‟ upon the hand of complainant and accused Maltaram, gave a Lathi blow upon the leg [5 of 27] of his brother, Naresh, so also, accused Ranjeet @ Jeete having sword in his hand, inflicted injury upon the chest of deceased, Ramlal. Other persons also assaulted them on the spot. On hearing the hue and cry, witnesses, Bansilal and Sohanlal, came there and intervened, thereafter all the accused persons ran away from the place of occurrence.
As per complainant, Subhash Khichi, police also came on the brought and send him, Naresh and Ramlal to Govt. Hospital in injured condition. In the hospital, after examination, doctors declared Ramlal dead and the complainant and his brother were admitted in the hospital for treatment. According to complainant/injured, Subhash Khichi, all the accused persons came on the spot to assault them and due to injuries caused to Ramlal, he died and they received injuries. The complainant prayed that action may be taken against the accused persons.
Upon the aforesaid statement recorded by the SHO, Police Station- Jawahar Nagar, Sri Ganganagar, at Govt. Hospital, Sri Ganganagar, a formal F.I.R. No.14/2005 (Ex.P/34) was registered on [6 of 27] 08.01.2015 under Sections 302, 323, 327, 147, 148, 149 IPC against the accused persons at 10.15 PM.
After registration of the FIR, the police commenced investigation and after completion of investigation, filed charge sheet against the accused appellants, Maltaram, Pyara Singh (died during the pendency of the present appeal), and juvenile, Sunny, Sikandar and Radheyshyam, u/s 302, 327, 323, 148, 147 and 149 of IPC and filed charge sheet against accused appellant, Ranjeet @ Jeete for the offence u/s 302, 327, 147, 148, 149 IPC and Section 4/25 (1) (B) (6) of the Indian Arms Act. The charge sheet against juvenile Radhey Shyam @ Kaliya, Sikandar and Sunny was filed before the Juvenile Justice Board, Bikaner and against remaining persons, Maltaram, Ranjeet @ Jeete and Pyara Singh, the charge sheet was in the court of Judicial Magistrate, Sri Ganganagar.
The learned Magistrate committed the case for trial to the court of Sessions Judge, Sri Ganganagar, from where it was transferred for trial to the court of Addl. Sessions Judge No.1, Sri Ganganagar. The learned trial court after hearing arguments framed charges against the accused appellant, Maltaram, for [7 of 27] offences u/s 148, 302/149, 327 and 323/149 of IPC and against appellant, Ranjeet @ Jeete u/s 148, 302, 327, 323 read with Section 149 of IPC and Section 4/25 (1) (B) (6) of the Arms Act. Against Paraya Singh, died during the pendency of the present appeal framed charges of the offences u/s 148, 302/149, 327, 323/149 of IPC. All the accused appellants denied charges levelled against them and claimed for trial.
Accused appellant, Pyara Singh died, therefore, by this judgment, we are deciding the appeal of remaining two accused appellants, Maltaram and Ranjeet @ Jeete Singh.
In the trial, to prove the charges against the appellant, statements of 16 prosecution witnesses were recorded. Thereafter statements of all the accused appellants were recorded u/s 313 Cr.P.C., in which they denied the allegations levelled by the prosecution witnesses and gave their explanation. Accused appellant, Maltaram, gave following explanation in his statements recorded u/s 313 Cr.P.C.-
**iz'u & D;k vki vkSj dqN dguk pkgrs gS\ mRrj & 'kgj ds yksx o gekjs Nktxfj;k ekSgYys ds yksxks dk vyx&vyx xqV gS ftlds dkj.k nks fnu naxs gq, Fks ftlesa 'kgj okyks us gekjs [kks[ks tyk, Fks ml dkj.k d¶;wZ yxk Fkk 'kgj ds [8 of 27] yksxks us e`r i'kq o cncw ds dkj.k ls gekjs eksgYys ds yksxks dks fo'ks'k dj Nktxfj;k tkfr ds yksxksa dks 'kgj ds ckgj fudkyus ds fy, geyk fd;k Fkk bUgha naxksa ds 'kd ds vk/kkj ij esjs dks fxj¶rkj fd;k o eq>s pkyku fd;kA** Similarly, accused appellant, Ranjeet @ Jeete, denied all the allegations levelled by the prosecution and gave following statement, which reads as under: -
**iz'u & D;k vki vkSj dqN dguk pkgrs gS\ mRrj & 'kgj ds yksx e`r i"kqvksa dh cncq ds dkj.k ge Nktxfj;k tkr ds yksxks dks 'kgj ls fudkyuk pkgrs gSA bl dkj.k ge ij geyk fd;kA d¶;wZ yxk bUgha naxksa ds 'kd ds vk/kkj ij eq>s fxj¶rkj fd;k o eq> pkyku fd;kA** After recording the statements of appellants u/s 313 Cr.P.C., statement of one defence witness DW.1, Lunaram, Sub Inspector who was posted in the Police Station, Jawahar Nagar, were recorded and thereafter final arguments on behalf of accused appellant were heard by the trial court.
The learned trial court after hearing arguments finally convicted the appellants vide its judgment dated 31.07.2006 and passed sentence for the offences mentioned herein above. In this appeal, the appellants are challenging the validity of the judgment dated 31.07.2006 on various grounds.
[9 of 27] Learned counsel for the appellants submitted that in this case prosecution has miserably failed to prove its case beyond reasonable doubt, which is evident from the fact that there is no evidence of motive on record for committing alleged offence u/s 302 or 302/149 of IPC and other offences viz. 148, 323/149, 327 of IPC and u/s 4/25 of the Arms Act.
According to learned counsel for the appellants the nature of injuries, found upon the body of injured eye- witness, Subhash Khichi, and his brother, Naresh, and even to the person of deceased, loudly speaks that there was no intention of the accused appellants to cause death, therefore, the findings of trial court so as to hold accused appellants guilty for the offence under Section 302, 302/149 and other offences, are not sustainable in law.
As per arguments of the learned counsel for the appellants, it is the duty of the prosecution to prove its case beyond reasonable doubt by leading trustworthy evidence, but in the instant case, as per the explanation given by the appellants in their statements recorded u/s 313 Cr.P.C., they were falsely implicated by the prosecution. As per appellants, an attack was made upon them because they belong to [10 of 27] "Chhajgariya" community and the people of city, wants to send/oust the members of "Chhajgariya" community and due to said attack, whole atmosphere of the city became tensfull and curfew was also imposed from Meera Chowk to Chhajgariya Mohalla and Ashok Nagar-B area of Police Station Jawahar Nagar, Sri Ganganagar, because tense situation occurred due to quarrel between two groups. An FIR No.15/2005 was also registered against injured Subhash Khichi and number of persons upon a complaint made by Sub- Inspector, of Police Station- Jawahar Nagar, Sri Ganganagar, under Section 147, 148, 149, 332, 353, 435 and 336 IPC, in which 15 persons were named including complainant, Subhash Khichi, and against 400-500 persons. To prove the aforesaid fact, in defence, evidence of Lunaram (DW.1) who was working as S.I. of Police Station- Jawahar Nagar, the said defence witness specifically stated before the court that attack was made by the complainant party and a mob of 400-500 persons, upon "Chhajgariya Mohalla" and the complainant, Subhash Khichi was leading the aforesaid group of persons and who were making demand that "Chhajgariya Mohalla" in which the [11 of 27] members of Chhajgariya community are residing, may be removed immediately.
The said witness DW.1- Lunaram, categorically stated on oath that complainant, Subhash Khichi was given warning as per order of Magistrate that if he will not stop agitation and not stop stone pelting, then action will be taken against them. In the said incident, near about 12 police officials received injuries due to stone pelting by the complainant party, to whom, complainant was leading.
Learned counsel for the appellants submits that the appellants are belonging to "Chhajgariya" community and as per evidence on record, that due to an attack made by the complainant party, the occurrence took place, in which injuries were caused not only to the complainant, Subhash Khichi and his brother, Naresh and deceased Ramlal but also to the accused appellants, but not even explained by the prosecution. Learned counsel for the appellants further submits that the complainant, Subhash Khichi, concocted a false story so as to connect the appellants with the alleged crime of murder but in fact the complainant party under the leadership of complainant [12 of 27] was agitating their demand to remove the members of "Chhajgariya" community from the area before the administrator and they were aggressive and created law and order situation while pelting stones and not only attached on the members of Chhajgariya community but also attacked upon police personnel also, therefore, probably in the quarrel some injuries were caused to complainant and deceased Ramlal, therefore, it cannot be said that occurrence took place with intention or there was any motive of the accused party to cause death of Ramlal.
The crux of the arguments of learned counsel for the appellants is that in the alleged incident took place upon agitation for demand of complainant party, and number of persons including the complainant party and accused party sustained injuries, which is evident from the fact that injuries were caused to the complainant party as well as to the accused party but after investigation, Challan was filed against appellants and three minor persons before Juvenile Justice Board for the alleged offence of murder and to cause injuries to the injured witnesses, therefore, even if the entire prosecution case is accepted, then also, no offence under Section 302 IPC against the appellants is made [13 of 27] out because it has not been proved against appellants. The occurrence has not been disputed by the learned counsel for the appellants but disputes the manner in which prosecution has demonstrated before the court. While inviting attention towards the statement of DW.1, Lunaram (the then S.I. of Police Station- Jawahar Nagar), who was posted in the area on 08.01.2005, when occurrence took place due to agitation being called by the complainant party, it is submitted that erroneous finding has been given by the learned trial court so as to hold accused appellants guilty for the offence under Sections 302, 302/149, 148, 323/149 and 327 of IPC and Section 4/25 of the Arms Act.
Lastly, it is argued that as per prosecution case, one injury was caused by accused appellant, Ranjeet @ Jeete by sword to the deceased and there is no allegation to cause repeated injuries and the injury which is said to be caused, though not proved, was not of the nature to cause death, so also, as per the statement of doctor, the sword, which was alleged to be recovered upon the information furnished by the accused appellant, Ranjeet @ Jeete, no injury could be caused by said weapon i.e. the sword. Therefore, it is a case in which the prosecution has fabricated a false [14 of 27] story so as to involve the accused appellants falsely for the alleged crime of murder and assault. According to appellant, even if the entire evidence is accepted, then also, offence cannot travel beyond offence under Section 304 Part II of IPC against the appellant, Ranjeet @ Jeete and no offence under Section 302/149 of IPC is made out against the appellant, Maltaram, therefore, the findings of guilt for the offence under Section 302/149 of IPC may kindly be altered to the offence under Section 304 Part II of IPC against appellant, Ranjeet @ Jeete; and the finding for committing offence u/s 302/149 IPC by the appellant, Maltaram, may kindly be set aside because there is no allegation against him by any of the prosecution witness for inflicting any injury to deceased by Malta Ram, the only allegation against appellant, Maltaram is that one injury was inflicted by him upon Naresh, by "Lathi" brother of complainant and that injury was simple in nature.
Per contra, learned Public Prosecutor submitted that no person/citizen can be permitted to disturb the law and order situation so as to commit offence of murder. In this case, the prosecution has proved its case on the basis of eye-witnesses beyond [15 of 27] reasonable doubt against the accused appellants for the offence u/s 302, 302/149, 327, 323/149 of IPC and so also in addition to the aforesaid offences, appellant, Ranjeet @ Jeete for committing offence u/s 4/25 of Arms Act. Therefore, no interference is called for in this appeal. It is further argued that the prosecution while leading trustworthy and reliable evidence has proved the case to hold the appellants guilty of the offence for which after proper assessment findings are given by the learned trial court, therefore, the present appeal may kindly be dismissed.
After hearing learned counsel for the parties, we have perused the findings based upon entire evidence in the light of arguments advanced by the learned counsel for the parties. Undoubtedly, to prove the prosecution case, statements of 16 witnesses were recorded. PW.4, Subhash Khichi, upon whose statement, the FIR was registered. It is evident from the statement of DW.1, Lunaram, that he was working as S.I. at Police Station- Jawahar Nagar, on 08.01.2005 on that date, bad law and order situation took place due to agitation of the complainant party under the leadership of Subhash Khichi, complainant of this case. The following statement is given on oath by DW.1 [16 of 27] Lunaram, with regard to incident took place on 08.01.2005 at 05.00 PM in the area, which reads as under: -
**eSa fn- 8-1-2005 dks iqfyl Fkkuk tokgj uxj Jhxaxkuxj esa ,l-vkbZ- ds in ij rSukr Fkk ml fnu esjh jokuh rk- 8-1-05 dks djhc lk<s 5 cts ,l ,p vks lkgc ds lkFk gqbZ FkhA ;g lgh gS fd esjh jokuh ds vykok iqfyl dk dkQh tkCrk ml bykds esa yxk;k x;k Fkk! esjkpkSd ls Ntxfj;k ekSgYyk o v'kksd uxj ch esa iqfyl tkIrk rSukr fd;k x;k FkkA D;ksfa d ekSgYykokfl;ksa o 'kgj okfl;ksa esa ruko FkkA D;ksfa d nksuksa xqV vkil esa fHkM+us ds fy, rS;kj FksA ekgkSy cgqr rukoiw.kZ gksus dh otg ls d¶;Zw Hkh yxk;k x;k Fkk D;ksfa d nksuksa xsV igys vkil esa ,d ckj fHkM+ pqds Fks vkSj nqckjk ,slk u gks blfy, 'kkfUr O;oLFkk dk;e djus ds fy, iqfyl tkIrk iwjh rjg ls ml bykds esa dk;e fd;k x;k FkkA ;g lgh gS fd eSaus izFke lwpuk la-15@2005 iqfyl Fkkuk tokgj uxj vUrxZr /kkjk 147] 148] 149] 332] 353] 435] 336 Hkk- na-la- dh Fkh ftlesa eSa ifjoknh gwAa ;g lgh gS fd ;g izFke lwpuk eSaus lqHkk'k [khph oxSjk 15 vkneh uketn o 400&500 vkneh vU; f[kykQ ntZ djokbZ FkhA ;g izFke lwpuk ntZ Hkh eSaus dh FkhA ;g lgh gS fd ml fnu eSa ,l Mh ,e lkgc oxSjk ds lkFk M~;wVh ij Fkk rc izFke lwpuk la- 15 esa uketn eqyftekuksa ds vykok 4&5 lkS vknfe;ksa dh HkhM+ cM+h mxz voLFkk esa gkFkksa esa ykfB;k o iRFkj ysdj Ntxfj;k ekSgYyk ij geyk djus ds fy, iz;kljr Fks o iRFkj ykBh ysdj lM+d ij vk x;sA nksuksa gh i{k vkeus lkeus dh fLFkfr esa FksA bl HkhM+ dk usr`Ro lqHkk'k [khph oxSjk dj jgs FksA bl HkhM+ dh ekax Fkh fd Ntxfj;k ekSgYyk dks ;gka ls gVk;k tkosA iqfyl dh le>kbZl ds ckotwn lqHkk'k [khph oxSjk yksxks dks mdlk jgs FksA eftLVªsV lkgc ds vkns'k ls mUgsa psrkouh nh xbZ ysfdu mUgksua s iRFkj Qsd a s o [kks[ks tyk fn;sA psrkouh ds ckn vklq xSl NksM+h xbZA bl lc ds ckotwn Hkh lqHkk"k [khph us HkhM+ dks mdlkuk o iFkjko tkjh j[kkA blls iqfyl tkIrk ds 12 [17 of 27] vknfe;ksa dks pksVs vkbZA budks frrj fcrj djus ds fy, iqfyl dks etcwj gksdj vf/kdkfj;ksa o eftLVªsV lkgc ds vkns'k ls gYdk cy iz;ksx Hkh djuk iM+kA ,slk gh ekgkSy 8-1-2005 dks 'kke o jkf= ,oa 9 ,oa 10 dks iwjk fnu jgkA iqfyl tkIrk vxj bu yksxksa dks dUVªksy ugh djrk rks yksxks dks tku eky dh Hkkjh gkfu gks ldrh FkhA izFke lwpuk la- 15@05 dh r¶rh'k esa lqHkk'k [khph oxSjk eqyfte gS r¶rh'ku vHkh isafMax gSA blh eqdnek 15@05 esa lqHkk'k [khph blh bykds dh ik'kZn gSaA ehjk pkSd lq Hkk'k [khph ds firk y{e.k[khph ds uke ij cuk gqvk gS ftUgksus dysDVªsV ifjlj esa vkRenkg fd;k Fkk ml le; Hkh iqfyl dh ftIlh tykbZ xbZ Fkh o d¶;wZ yxk FkkA ftjg }kjk vij yksd vfHk;kstd& ;g lgh gS fd Ntxfj;k ekSgYys esa ruko dh fLFkfr 8-1-05 dks jkeyky dk dRy gksus ds i'pkr gh gqbZ FkhA eSa 8 rkjh[k dks dRy gksus ds i'pkr ekSds ij igqapk Fkk mlls igys dh fLFkfr eq>s /;ku ugha D;ksfa d eSa M~;wVh ij ugha FkkA izFke lwpuk la- 15@05 fn- 9-1-05 dks djhc 4 ih- ,e- ij ntZ gqbZA eSaus ;g izFke lwpuk okfil vkdj 4 ih-,e- ij ntZ dh Fkh ftldk jkstukepk esa bUnzkt fd;k x;k gSA ;g dguk xyr gS fd izFke lwpuk la-15@05 dk izFke lwpuk la-14@05 ls dksbZ lEcU/k u gksAa vt [kqn dgk fd mlh ?kVuk dks ysdj ;g ?kVuk gqbZ FkhA eq>s irk ughas fd izFke lwpuk la-14@05 g¶rk olwyh ds dkj.k ls ?kVuk dkfjr gqbZ gksA ;g lgh gS fd ekYVk o I;kjk Fkkus dh fgLVªhlhVj gSA ekSgYys esa Ntxfj;ks }kjk gM+~Mh Mkyus ls gksus okyh cncq ds dkj.k vkl&ikl ekSgYys okys ijs'kku Fks blh dkj.k Ntxfj;ksa dks ogka ls [knsMu+ k pkgrs FksA ;g lgh gS fd izFke lwpuk 15@05 dh r¶rh'k iSfMax gS tks esjs ikl vc ugha gS D;ksfa d eSa vuwix<+ esa inLFkkfir gwa bldh r¶rh'k 'kq: eSaus dh Fkh ijUrq vc esjs ikl ugha gSA ;g ckr lgh gS fd ruko tc cM+k Fkk tc Ntxfj;ksa us ,d vke vkneh jkeyky dk dRy dj fn;k FkkA** Upon perusal of the statement of Lunaram, the then Sub-Inspector of the area in defence, it is obvious that story narrated by PW.4, Subhash Khichi [18 of 27] (complainant) become doubtful. The so-called eye-
witness (PW.4) Subhash Khichi categorically stated that at the time of occurrence, Bansilal and Sohanlal came on the spot to save them, and said Banshilal is none other than the real brother of deceased, Ramlal, therefore, his statement cannot be treated to be trustworthy because he is interested witness and as per the statement of DW.1- Lunaram (the then S.I.), the occurrence took place due to agitation and demonstration of the complainant party, headed by complainant, Subhash Khichi, in which injuries were caused to the deceased and so many persons. As per prosecution case, the weapon of offence i.e. the sword was recovered vide Ex.P/7, upon the information given by the appellant, Ranjeet @ Jeete, and the "Lathi" was recovered vide Ex.P/11 as per information given by accused, Maltaram. According to prosecution, blood was found upon the sword recovered vide Ex.P/7, and the said recovery was made in the presence of PW.6, Subhash S/o Ramkishan and Om Prakash, residents of the area but this Court cannot loose the sight upon the statement of doctors in which it is categorically stated that the injury found upon the body of deceased, [19 of 27] Ramlal, cannot be caused by the sword recovered as per information of accused, Ranjeet @ Jeete.
Although, the then S.I. of Police Station-
Jawahar Nagar, Sri Ganganagar, appeared as defence witness as DW.1 (Lunaram), this Court cannot ignore the fact that no independent witness produced by the prosecution to prove its case beyond reasonable doubt.
If the quarrel took place on public way, then obviously, other independent witnesses were required to be produced before the court to prove the allegation.
Therefore, there is no question of disbelieving the testimony of DW.1- Lunaram, who is police official and categorically gave statement on oath before the court.
We have perused the statements of Dr. B.M. Sharma (PW.10) and Dr. Ramesh Sharma (PW.11), who were the Board who conducted the postmortem and gave the postmortem report (Ex.P/26). Both these witnesses have stated that upon the body of deceased, Ramlal, there were two injuries, the description of the injuries reads thus:
**pksV la-1 & rst /kkjnkj dVk gqvk ?kko 3@4 bap X 1@2 bap X dsohVh dh xgjkbZ rd e/; ykbZu ls 3 bap nwj ckgj dh rjQ cka;s fuiy ls 2 bap uhps Nkrh ij 2& jxM+ 1 lsUVh- X 1@4 lsUVh- cka;h dksguh ij** [20 of 27] Both these witnesses stated before the Court that above injuries cannot be caused by sword, which is said to be recovered at the instance of accused appellant. A specific question was put by the Court to Dr. Ramesh Sharma (PW.11) who was the member of the Board conducted the postmortem of deceased, whether the injury found upon the body of deceased, Ramlal, can be caused by sword which is said to be recovered upon the information given by appellant, Ranjeet @ Jeete, the said witness after examining the sword (Article-1) categorically stated that injury which is found upon the deceased, cannot be caused by this weapon.
The following question was put to the said witness PW.11 while showing sword (Article-1), which was answered by him in the following manner: -
iz'u & D;k vkfVZdy ua-1 ryokj ls iksLV ekVZe fjiksVZ izn'kZ ih&26 esa crkbZ xbZ pksV la-1 dVk gqvk ?kko 3@4 bap X 1@2 bap X dsohVh dh xgjkbZ rd e/; ykbZu ls 3 bap nwj ckgj dh rjQ cka;s fuiy ls 2 bap uhps Nkrh ij crk;h xbZ tSlh pksV vkfVZdy ua-1 ryokj dks ?kksia us ls vk ldrh gS ;k ugha\ bl iz'u ij vfHk;qDr ds ;ksX; vf/koDrk }kjk vkifRr dh xbZ fd vkfVZdy ua-&1 ryokj ls pksV vkus ds ckjs es fpfdRld }kjk jk; nsus ds fy, iz'u ugh fd;k tk ldrk D;ksfa d ;s p{kq lk{kh ugha gksrs gSa vkifRr vLohdkj dh xbZA [21 of 27] mRrj esa rst /kkjnkj gfFk;kj dks fcuk ikus ;g ugha crk ldrk fd ;s pksV ua-1 mDr gfFk;kj ls vk ldrh gS ;k ughaA bl gfFk;kj ls ;g pksV ugha vk ldrhA xokg us Ldsy ls vkfVZdy ua-1 dh pksV dh yEckbZ pkSM+kbZ vkfVZdy ua-1 ryokj ls vkus ds ckjs es ryokj dh yEckbZ pkSM+kbZ uki dj ;g jk; nh fd vkfVZdy ua-1 ls iksLV ekVZe fjiksVZ esa crkbZ xbZ pksV la-1 ugha vk ldrhA** PW.10, Dr. B.M. Sharma, who was also one of the member of the Medical Board, also stated that the injury found upon the chest of deceased, cannot be caused by sword having dimension of 1 x 22 cm. Meaning thereby even if it is presumed that recovery of sword is prove by the prosecution, then also, it cannot be said that the prosecution has proved its case beyond reasonable doubt that the accused appellants inflicted injury upon the person of deceased by sword recovered upon the information of accused appellant, Ranjeet @ Jeete. Admittedly only one incised wound was found upon the body of deceased, but it cannot be presume that the prosecution has proved that author of that injury was appellant, Ranjeet @ Jeete.
It is also very important aspect of the matter that the accused appellants are not disputing the incident which had taken place on 08.01.2005 because in their statements recorded under Section 313 Cr.P.C. and in the statement of witness DW.1 Lunaram, the [22 of 27] then S.I. of Police Station- Jawahar Nagar, who was posted in the area concerned, it has categorically proved before the court that on 08.01.2005 there was agitation of the complainant party under the leadership of complainant, Subhash Khichi, to remove the people of "Chhajgariya community" from "Chhajgariya Mohalla". Meaning thereby, the incident took place due to agitation of complainant party in which injuries were caused to the complainant party as well as accused party. It is also evident from the evidence on record that the injuries were also found upon the body of Ranjeet @ Jeete, for which Injury Report (Ex.D/6) is on record, though said injury was simple in nature, but it proves the presence of appellant on the spot.
After assessing the entire evidence, we are of the view that for the incident took place on 08.01.2005 in Jawahar Nagar area, reported by the complainant PW.4, Subhash Khichi occurred due to agitation and demonstration made by the complainant party in which the peace of the entire area was disturbed, injuries were caused to many persons including accused party and police personnel as well. However, upon assessment of the allegations of complainant, Subhash Khichi, injured eye-witness, and complainant‟s brother, [23 of 27] Naresh, coupled with medical evidence, we are not satisfied that the prosecution has proved its case under Section 302 or 302/149 of IPC against the appellants.
In order to prove its case beyond all shadows of reasonable doubt, the prosecution has to prove the criminal conspiracy, which is evident from the entire evidence. The Hon‟ble Supreme Court in number of cases held that proseuction has to prove its case beyond reasonable doubt for the allegation of criminal conspiracy for murder. In the case of State (Government of NCT of Delhi) Vs. Om Prakash Srivastava @ Babloo reporetd in 2015 Cri.L.J. 4759 the Hon‟ble Apex Court gave following verdict with regard to existence of criminal conspiracy, which reads as under: -
"16. The prosecution relies upon the existence of criminal conspiracy, which resulted into the death of Lalit Suneja.
This Court has time and again laid down the ingredients to be made out by the prosecution to prove criminal conspiracy. It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The Court for the purpose of arriving at a finding as to whether the said offence has been [24 of 27] committed or not may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that meeting of mind is essential; more knowledge or discussion would not be sufficient. Yet, the prosecution has failed to prove the evidence which establishes any prior meeting of mind of the accused. The prosecution merely proved that all the accused were present in Delhi on the date of occurrence, and that the alleged motor-bike and the car used in incident belongs to respondent No.2, Om Prakash Srivastava alias Babloo. The High Court rightly dismissed this argument, as the involvement of the said vehicle in commission of the crime were never proved. Neither any prior meeting of mind of the accused was proved, nor any action, individually or in concert, was proved against any of the accused.
Needless to say that the entire foundation of the prosecution story was never established."
Here in the instant case, although incident is proved with regard to injuries caused to the complainant party as well as to the accused party, but the prosecution has failed to prove its case against the appellants for the death of Ramlal as a result of injuries [25 of 27] caused by appellant, Ranjeet @ Jeete because it has not been medically proved that the injury found upon the body of deceased, was caused by sword which is said to be recovered as per information given by the appellant, Ranjeet @ Jeete.
Upon consideration of the entire evidence, we are of the opinion that there is strength in the argument of the learned counsel for the appellant that finding given by the learned trial court for offence under Section 302 IPC is not sustainable in law, but at the same time, upon overall assessment of evidence, more particularly, the statement of accused appellants himself recorded under Section 313 Cr.P.C. coupled with the finding of the evidence on record, the complainant party was aggressor, therefore, we are of the opinion that the finding for conviction of the accused appellant for offence under Section 302 and Section 302/149 of IPC given by the learned trial court is not sustainable in the eye of law.
The Hon'ble Supreme Court in a catena of judgments held that "intention" should be gathered upon proper assessment of entire evidence and if evidence of intention/motive for commission of offence [26 of 27] of murder is absent then it cannot be said that offence under Section 302 IPC is made out.
In view of above discussion, we are of the opinion that the findings of guilt arrived at by the learned trial court against the appellants for the offences u/s 302, 302/149 IPC, has not been proved by the prosecution beyond reasonable doubt but their participation is proved.
Consequently, on the basis of above discussions, the instant appeal is partly allowed. The conviction and sentence passed by the learned Addl. Sessions Judge No.1, Sri Ganganagar, in Session Case No. 8/2005 vide judgment dated 31.07.2006 against the accused appellant, Ranjeet @ Jeete u/s 302 IPC, and so also, the conviction and sentence awarded to accused appellant, Maltaram for the offence under Section 302/149 IPC, is hereby quashed and set aside. However, the conviction and sentence for other offences imposed against the accused appellants by the learned trial court i.e. for the offences under Sections 148, 323/149 and 327 of IPC and Section 4/25 (1) (B) (6) of the Indian Arms Act, are hereby maintained and the sentence awarded to the appellants, Maltaram and [27 of 27] Ranjeet @ Jeete, by the trial court for aforesaid offences, is reduced to the sentence already undergone by them. The sentence awarded to the appellant No.1, Maltaram was suspended vide order dated 01.112006, thus he is on bail, therefore, his bail bonds are hereby discharged.
As far as appellant, Ranjeet @ Jeete is concerned, he is behind the bars, therefore, he may be set at liberty, unless required in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, 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 Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(G.R. MOOLCHANDANI),J. (GOPAL KRISHAN VYAS),J. DJ/-