Rajasthan High Court - Jaipur
Chet Ram And Anr vs State Of Rajasthan Through Pp on 25 August, 2020
Bench: Goverdhan Bardhar, Manoj Kumar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 949/2015
1. Chet Ram
2. Shiv Ram
Both sons of Kirodi, R/o Nithar, Police Station Bhusawar, District
Bharatpur (Rajasthan)
(Appellant Chet Ram is confined at Sub Jail Bayana, District
Bharatpur.
Sentence of appellant Shiv Ram has been suspended and
enlarged on bail by this Court till disposal of this appeal vide
order dt 04.11.2015)
----Appellants
Versus
State Of Rajasthan Through PP
----Respondent
For Appellant(s) : Mr. D.G. Chaturvedi, assisted by Mr. Anurodh Chaturvedi For Respondent(s) : Mr. N.S. Gurjar, PP HON'BLE MR. JUSTICE GOVERDHAN BARDHAR HON'BLE MR. JUSTICE MANOJ KUMAR VYAS Judgment Order reserved on : 10.08.2020 Date of Pronouncement : 25.08.2020 [Per : Manoj Kumar Vyas, J.]
1. This appeal has been filed under Section 374 of CrPC assailing the judgment dated 09.09.2015 passed by Additional Sessions Judge No.1, Bayana District Bharatpur, in Session Case Nos. 26/2014 (03/2014), whereby appellant Chet Ram has been held guilty for offence u/s 302 of IPC and sentenced life imprisonment with a fine ₹ 10,000/- in default whereof, further to undergo one year simple imprisonment and appellant Shiv Ram has been held guilty for offence u/s 325 of IPC and sentenced (Downloaded on 26/08/2020 at 09:06:17 PM) (2 of 20) [CRLA-949/2015] seven years rigorous imprisonment with a fine of ₹ 10,000/- in default whereof, further to undergo one year simple imprisonment.
2. Briefly stated, according to the facts of the case, written report Exhibit-P.1 was submitted on 24.09.2013 in Police Station Bhusawar District Bharatpur by complainant Girdhari Lal son of Ram Phool. Complainant stated in the report that in the evening of 23.09.2013 at around 07:00, Churaman had gone to the house of Chet Ram, where a quarrel ensued between them. Chet Ram assaulted Churaman causing injuries as a result of which Churaman succumbed to those injuries while he was being taken to the hospital. He further mentioned that detailed information regarding the incident can be given by wife of deceased Churaman and his children.
3. On the basis of this written report Exhibit-P.1, FIR Exhibit-P.33 was registered under Section 302 of IPC and investigation was commenced. After investigation, charge-sheet was filed in learned trial court against the accused appellants, which was committed to the court of sessions. The matter was transferred to the court of Additional Sessions Judge No.1, Bayana District Bharatpur for trial. Charges were framed against accused appellants under Section 302 in alternative 302/34 of IPC, 304 in alternative 304/34 of IPC, 307 in the alternative 307/34 of IPC, 325 in the alternative 325/34 of IPC.
4. The accused appellants denied charges and claimed trial. Prosecution got examined as many as twenty-three witnesses and produced documentary evidence Exhibits-P.1 to P.27. Thereafter accused appellants were examined under Section (Downloaded on 26/08/2020 at 09:06:17 PM) (3 of 20) [CRLA-949/2015] 313 of CrPC, in which they pleaded that they have been falsely implicated due to enmity and deceased Churaman was a habitual drunkard. On the fateful day, he was highly intoxicated and due to intoxication he fell upon stones and got injured. Serious injuries were caused on his head due to this fall and he died. Total five witnesses were examined for defence.
5. After hearing both the parties, learned trial court passed the impugned judgment whereby accused Chet Ram was convicted under Section 302 of IPC and accused Shiv Ram was convicted under Section 325 of IPC. They were acquitted of rest of the charges and sentenced as indicated hereinbefore.
6. Aggrieved by this judgment of conviction and sentence, this appeal has been preferred.
7. It has been contended on behalf of the appellants that learned trial court has committed error by convicting and sentencing the accused appellants without any sufficient evidence. Learned trial court has also ignored grave contradictions, which have appeared in the prosecution evidence. Injury report of Rohit was prepared on 23.12.2013, after a lapse of three months as the alleged occurrence took place on 23.09.2013. In the FIR it is not mentioned that any of the injuries found during postmortem examination was inflicted by accused appellant Chet Ram. PW.1 Girdhari Lal was declared hostile and did not support the prosecution story. Other important witnesses have also turned hostile including material eye-witnesses of the incident. Even mother of the deceased Churaman, PW.9 Jalbai, has turned hostile and has deposed that Churaman was addicted to alcohol and he fell down. She also deposed that Churaman inflicted sword blow (Downloaded on 26/08/2020 at 09:06:17 PM) (4 of 20) [CRLA-949/2015] on her, as a result she sustained injuries. She further stated that Churaman expired as a result of the fall. She has specifically said that no injury was caused to deceased by appellants nor any injury was caused to Rohit. PW.10 Ramkesh has also not supported the prosecution story. PW.11 Amar Singh and PW.12 Mukesh were also declared hostile and did not support the prosecution story and have stated that no assault was inflicted by accused appellant Chet Ram on the deceased. Witnesses of alleged recovery have also not supported the prosecution story. As per medical evidence, doctors have deposed that injury no. 1 was not caused by pati and this injury could have been caused due to fall on pointed stones. PW.14 Dr. Hari Mohan has also stated that the deceased might have sustained injuries as a result of a fall. PW.15 Dr. Gopal Krishna Mehta has proved old injuries of Rohit. The evidence of PW.15 is based upon old reports and his injuries were noted on the basis of report of S.M.S. Hospital. Other independent witnesses have not supported the prosecution story. It has also been argued that in the initial report Exhibit-P.1, names of Shiv Ram appellant and injured Rohit were not mentioned. Appellant Shiv Ram has been implicated later-on after consultation. Investigating Officer has recorded statements of eye-witnesses after an unexplained delay of 1-1½ months. Recovery of the alleged weapon of assault is suspicious. Clinical notes of S.M.S. Hospital have not been produced during course of trial, nor the treating doctor has been examined who prepared the clinical notes. More so, Dr. Gopal Krishna Mehta PW.15, has stated that he could not say about the weapon causing injuries to Rohit and the duration of injuries could be more than six months. (Downloaded on 26/08/2020 at 09:06:17 PM)
(5 of 20) [CRLA-949/2015] Although accused appellant Shiv Ram was charged for offence punishable under Section 302/34 of IPC, but PW.5 Guddi and PW.6 Rohit exonerated Shiv Ram for causing injuries to the deceased and the reason appears to be that PW.5 Guddi, elder sister, is married to Shiv Ram, accused appellant and both the witnesses did not implicate Shiv Ram for causing injuries to the deceased and for this reason, the trial court acquitted Shiv Ram for the offence punishable under Section 302/34 of IPC. So, both these witnesses are of obliging nature and in such circumstances accused appellant Chet Ram cannot be convicted alone for the offence punishable under Section 302 of IPC simpliciter.
8. It has been further argued that learned trial court has committed grave error in holding that Chet Ram inflicted injury no. 1, which was in the nature of incised wound, elliptical shaped, having regular margins 8cmx2.5cm on left fronto lateral aspect of skull by inflicting pati blow. Both the doctors, PW.13 and PW.14 have stated this injury cannot be caused by wooden pati, as the injury found by them was caused by sharp cutting weapon thereby, there has been direct conflict between ocular evidence and medical evidence. The recovered pati has not been produced in the court and no reliance can be placed on the recovery memo Exhibit-P.7 not supported by motvir witnesses, PW.7 Harkesh and PW.8 Prithvi. No inference can be drawn against the accused if there is no evidence connecting the weapon with the crime alleged to have been committed by the accused. Burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. It is the duty of the prosecution and no less of the court to see that the (Downloaded on 26/08/2020 at 09:06:17 PM) (6 of 20) [CRLA-949/2015] alleged weapon of offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon and failure to do so may sometimes cause aberration in course of justice. There is omission to state in the FIR regarding infliction of pati blow by accused appellant Chet Ram on the body of the deceased. On the day of occurrence deceased Churaman had consumed alcohol and armed with sword came to the place of occurrence and inflicted sword blow on the body of his mother PW.9 Jalbai.
9. PW.5 Guddi has stated on oath before the court that police did not record any statement under Section 161 of Cr.P.C., meaning thereby that her statement was recorded for the first time in court, which would rob her of evidentiary value in this case.
10. Late recording of statement under Section 161 of Cr.P.C is fatal to the prosecution case, and in this case statements of important witnesses were recorded after a delay of almost 1 and 1½ months after the incident by Investigating Officer, which creates serious doubt on the prosecution case thereby rendering the prosecution evidence totally unreliable. FSL report is also inconclusive. Investigating Officer has not offered any explanation for delayed examination of material witnesses. Entire investigation conducted is tainted, motivated and not trustworthy and defective, which goes to the root of the case. Further it was submitted that cumulative effect of all the aforesaid circumstances goes to show that presumption of innocence of the accused appellants has not be rebutted by the prosecution by cogent, (Downloaded on 26/08/2020 at 09:06:17 PM) (7 of 20) [CRLA-949/2015] reliable and trustworthy evidence and both the accused appellants are entitled to be acquitted and judgment of conviction and sentence is liable to be quashed and set aside.
11. In support of his arguments reliance has been placed on the following judgments :-
(i) Sangam Lal v. State of U.P. 2005(2) Acquittal 647 (ii) Govind Tiriya & Anr. v. State of Jharkhand 2015(2) Acquittal 280 (Jhar.) (iii) Niranjan Panja v. State of West Bangal 2010 AIAR (Criminal) 655 (iv) Sk. Yusuf v. State of West Bengal 2011 Cri.L.R. (SC) 600 (v) Mustkeem @ Sirajudeen v. State of Rajasthan (2011) 11 SCC 724 (vi) Kartarey & Anr v. State of Uttar Pradesh AIR 1976 SC 76 (vii) Ram Kumar Pandey v. State of M.P. 1975 Cri.L.J. 870 (viii) Baldeo Singh & Anr Vs. State of Bihar 1972 SC.C.R 117 (ix) Gurdeep Singh Vs. State of Rajasthan 2012(2) CJ Cri(Raj)435 (x) State of Uttar Pradesh Vs. Wasif Haider & Anr (2019)2 SCC 303
12. It has been argued on behalf of the prosecution that the judgment of learned trial court is based upon proper appreciation of evidence available on record. The prosecution evidence is consistent, reliable and without any material contradictions. The case has been supported by Eye-witnesses, medical evidence and other evidence connecting accused- appellants to the crime. The defence of accused-appellants is not tenable and appeal is liable to be dismissed for want of merit.
13. The prosecution case mainly rests on following set of evidence :-
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(i) Eye-witness account
(ii) Medical evidence
(iii) Recovery of weapon of assault
Eye-witness Account
14. The written report Exhibit-P.1 in this case was lodged by Girdhari Lal son of Ramphool, in which he stated that on 23.09.2013 at about 07:00 P.M. Churaman had gone to the house of Chet Ram and at that place a quarrel ensued between them. Chet Ram assaulted Churaman, resultantly on the account of the injuries caused to Churaman, he died.
15. Complainant Girdhari Lal was examined as PW.1. He has turned hostile. He deposed that no quarrel took place in his presence. He reached the place of occurrence after few hours. He also stated that between whom the quarrel ensued, is not in his knowledge. The report was written by some other person and he was only made to sign it. Panchayatnama was not prepared in his presence. In cross-examination he resiled from his police statement Exhibit-P.5 and stated that he has not given any such statement to the police during investigation. He also denied the fact that FIR was written by him and he read the written report before signing it. Seizure memo was not signed by him. He signed on blank papers. No clothe was recovered in his presence. Thus, PW.1, who is the complainant, has not supported the prosecution.
16. Other important eye-witnesses, who were examined by the prosecution during trial are PW.5 Guddi, PW.6 Rohit, who is the injured person, PW.9 Jalbai, PW.10 Ramkesh, PW.11 Amar (Downloaded on 26/08/2020 at 09:06:17 PM) (9 of 20) [CRLA-949/2015] Singh and PW.12 Mukesh Kumar Meena. Out of these eye- witnesses, PW.9, PW.10, PW.11 and PW.12 have not supported the prosecution story and they have turned hostile. PW.9 Jalbai, who is mother of the deceased Churaman, has stated in her statement that Churaman was in the habit of taking liquor and he was used to quarreling after getting intoxicated. He died as a result of fall in an inebriated condition. He fell upon a patia and got hurt and resultantly died. He also assaulted me (Jalbai) by sword. She has denied her police statement. In cross-examination she has stated that Churaman was in the habit of consuming liquor and he was a habitual offender and used to create nuisance in the Village. On the fateful day he was in intoxicated condition and was not able to control himself physically. In that condition he started fighting with us. She has stated that she pleaded with him but he did not relent. In the sequence of events he fell upon stones and due to head injury, died.
17. PW.10 Ramkesh has also been declared hostile and he has resiled from his police statement Exhibit-P.12. He also deposed that no assault was caused to Churaman by accused- appellants Chet Ram and Shiv Ram rather Churaman was in highly intoxicated state and in that condition he fell down and got hurt, resulting in his death.
18. Similar statements have been given by PW.11 Amar Singh. He deposed that Churaman was abusing accused- appellants Chet Ram and Shiv Ram. Ramkesh, Mukesh, Jalbai, Churaman were present there. Churaman assaulted his mother by sword and in the incident Churaman fell upon patia and got (Downloaded on 26/08/2020 at 09:06:17 PM) (10 of 20) [CRLA-949/2015] himself hurt, thereby his death ensued. This witness also resiled from his police statement Exhibit-P.13.
19. Thus, PW.10 Ramkesh and PW.11 Amar Singh both have laid the blame on deceased and have stated that deceased was under the influence of liquor and he started assaulting other persons including his mother by a sword. He was not in a position to control his body, thereby falling down upon stones and got himself hurt. Due to those injuries his death was caused.
20. Similarly, PW.12 Mukesh has given statement and has also resiled from his police statement Exhibit-P.14. Thus, in this case PW.1 Girdhari Lal, who is the complainant, PW.9 Jalbai, PW.10 Ramkesh, PW.11 Amar Singh and PW.12 Mukesh, who were cited as eye-witnesses by the prosecution, have totally resiled from their police statements and have not supported the prosecution case. Instead, they have stated that deceased Churaman died because he fell upon stones as a result of his being in a state of intoxication. They have also claimed that assault was caused by deceased Churaman. Even his mother has stated that she was assaulted with sword by the deceased.
21. PW.5 Guddi, widow of Churaman, has stated that she was cooking at her house. Her husband was demanding money from Chet Ram and Bhupendra. Chet Ram assaulted him with lathi and Bhupendra also assaulted him. Shiv Ram, Bhupendra and Chet Ram all came there. Chet Ram was having pati and Bhupendra was armed with lathi and both Chet Ram and Bhupendra assaulted Churaman, due to which he suffered serious injuries. He was taken to Mahuwa where the doctors declared him dead. Rohit was assaulted by Shiv Ram by a faoda (shovel), who (Downloaded on 26/08/2020 at 09:06:17 PM) (11 of 20) [CRLA-949/2015] also received serious injuries and was referred to Jaipur. Thus, in her statement PW.5 Guddi has implicated another person Bhupendra along with accused appellant Chet Ram and she has stated that Bhupendra also hit her husband with a lathi and Chet Ram hit him with a pati but Bhupendra has not been charge sheeted in this case. In the FIR, name of Bhupendra and Shiv Ram does not appear. They have been roped in thereafter. In cross-examination she has denied her police statement Exhibit-D1 part "A" to "B" and has also stated that Shiv Ram did not assault Churaman. Thus, she has exonerated in her statement accused appellant Shiv Ram and has assigned injuries to Chet Ram and Bhupendra, but no charge-sheet has been filed against Bhupendra but only against Chet Ram and Shiv Ram. As far as Shiv Ram is concerned, she has categorically stated that no injury was caused by Shiv Ram to Churaman. He only assaulted Rohit, who suffered serious injuries and was referred to Jaipur for treatment.
22. PW.6 Rohit has stated in his statement that his father was assaulted by Chet Ram and Bhupendra, and Shiv Ram caused injuries to him by faoda (shovel). This witness has also stated that no injury was caused by Shiv Ram to his father, but he has also assigned injuries of his father to Chet Ram and Bhupendra but no charge-sheet has been filed against Bhupendra and FIR also does not name Bhupendra and Shiv Ram. Thus, creating a doubt in the prosecution story.
23. Another important factor in this case is that the Investigating Officer did not record statements of eye-witnesses under Section 161 of Cr.P.C. immediately. Statements of (Downloaded on 26/08/2020 at 09:06:17 PM) (12 of 20) [CRLA-949/2015] important eye-witnesses were recorded after extraordinary delay and no plausible explanation has been given by the prosecution in this regard.
24. Perusal of record reveals that statement of Jalbai (PW.9) was recorded on 11.11.2013. Statement of Ramkesh (PW.10) was recorded on 31.10.2013. Statement of Amar Singh (PW.11) was also recorded on 31.10.2013. Statement of Mukesh (PW.12) was recorded on 15.11.2013. Statement of Guddi (PW.5) was recorded on 25.10.2013 and statement of Rohit (PW.6) was recorded on 23.12.2013. Indisputably, the incident is of 23.09.2013. Statement of Guddi, who is widow of the deceased Churaman, was also recorded after more than one month, on 25.10.2013. Statement of injured Rohit was recorded on 23.12.2013, after almost three months of the incident. Other prosecution witnesses cited as eye-witnesses by the prosecution, namely Jalbai (PW.9), Ramkesh (PW.10), Amar Singh (PW.11) and Mukesh (PW.12) were also examined by the Investigating Officer on 11.11.2013, 31.10.2013, 31.10.2013 and 15.11.2013, thus, after inordinate delay regarding which no plausible or reasonable explanation has been given by the Investigating Officer in his deposition before the trial court. The Investigating Officer Mr. Nemi Chand was examined as PW.21, in which he has stated in cross-examination that site-plan was prepared after one month of the incident. He did not take effective steps for one month in the matter of investigation of the case except taking statements of the complainant Girdhari Lal, who was declared hostile during the trial. Other steps were taken by him after expiry of one month from the incident. He has tried to explain that widow of deceased (Downloaded on 26/08/2020 at 09:06:17 PM) (13 of 20) [CRLA-949/2015] had gone to her parental house and he summoned her for statement, but further he has stated that he did not go to her parental place to record her statement and it has also been stated by him that he met witness Guddi before 25.10.2013 but as she was in a sorrowful condition, he did not record her statement. This clarification is totally untenable, particularly in a matter of investigation of such heinous offence. Recording of statement of main eye-witnesses after lapse of one month's period, creates serious doubt in the prosecution story. There is no justification for recording of statements of those eye-witnesses after lapse of about 1½ months. For reasons best known to the Investigating Officer, he did not bother to proceed further in the matter of investigation and kept silent for one month. This creates serious doubts on the trustworthiness of prosecution witnesses. Moreso, in this case many prosecution witnesses have turned hostile during their deposition in the trial court, and PW.5 and PW.6 Guddi and Rohit, were also examined in the trial court but their statements also reveal material contradictions as discussed above. Thus in view thereof, ocular evidence in this case is not consistent and does not inspire confidence.
Medical Evidence
25. Prosecution has examined PW.13 Dr. Subodh Kumar, who has conducted postmortem (Exhibit-P.15) of Churaman. He was one of the members of the board. Other members were Dr. Rakesh Kumar and Dr. Hari Mohan. He has stated that following injuries were found on the body of deceased Churaman :- (Downloaded on 26/08/2020 at 09:06:17 PM)
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(i) Incised wound elliptical shaped having regular
margin 8cmx2.5cm(avg.) depth bone and brain deep with clotted and blood coming out on left frontolateral aspect of skull just lateral to mid line.
(ii) Lacerated wound with irregular magin 6cmx3cmxbrain deep and clotted and blood coming out on right temporal region just above to Rt pinna.
(iii) Swelling 10x8cm on Lt zygomatico temporal region Cause of death has been opined_"due to fracture of skull bones with damage foreskin tissue leading to excessive bleeding leading to hemorrhagic and neurological shock which was sufficient for death".
26. In his cross-examination PW.13 Dr. Subodh Kumar has stated that it is true that injury no. 1 can be caused by a sharp weapon. Injury no. 1 cannot be caused by assault of pati. This injury is also possible as a result of fall on sharp stones. It is true that death of deceased was caused due to excessive hemorrhage and injury of the brain. Lacerated wound cannot be caused by a sharp weapon.
27. PW.14 Dr. Hari Mohan has also been examined. He has stated in his cross-examination that Exhibit-P.15 postmortem report has been written by him. Final opinion was given by all the three members of the board. It is true that injury no.1 cannot be caused by a pati, but it can be caused by fall upon sharp stones. Injury no. 1 was sufficient to cause death.
28. It has been contended by counsel for the accused appellants that there is contradiction between ocular evidence and medical evidence.
29. PW.13 and PW.14, who conducted postmortem of Churaman, have clearly stated in their cross-examination that injury no. 1 was sufficient to cause death but this injury could not have been caused by pati. Rather, it could have been caused by a sharp weapon only. The prosecution case is that the accused (Downloaded on 26/08/2020 at 09:06:17 PM) (15 of 20) [CRLA-949/2015] appellant Chet Ram assaulted Churaman with a pati on his head, thereby causing injuries which led to his death, but as per the evidence of PW.13 and PW.14, injury no. 1 has been ruled out by assault of pati and admittedly there is no allegation of causing injury by any sharp weapon by accused appellants. Recovery has also been alleged to be made from accused appellant of pati, which is not a sharp weapon. Hon'ble Supreme Court in Kartarey v. State of Uttar Pradesh AIR 1976 SC 76, has observed as under :-
Criminal P.C. (1898), Section 509 - Medical witness
- Whether injuries could be caused by particular weapon - Opinion of such witness - Necessity - Duty of prosecution and Court.
Where injuries found are forensically of the same species, e.g. stab wounds, and the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon, it is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in course of justice.
30. In this case, eye-witnesses PW.5 Guddi and PW.6 Rohit have claimed that deceased Churaman was assaulted by accused appellant Chet Ram with a pati and due to this assault, serious injuries were caused to Churaman on his head, which resulted in his death. The weapon of assault has also been recovered in this case i.e. pati, but PW.13 Dr. Subodh Kumar and PW.14 Dr. Hari Mohan have categorically stated that injury no. 1 of Churaman can only be caused by a sharp weapon and cannot be caused by a pati, which is not a sharp weapon. Thus, there is a direct conflict between ocular evidence and medical evidence, which goes to the root of the prosecution case. Weapon of assault has not been shown to PW.13 and PW.14 during their examination in the trial (Downloaded on 26/08/2020 at 09:06:17 PM) (16 of 20) [CRLA-949/2015] court and they have not been asked whether the injuries found on the body of deceased Churaman could have been caused by the recovered weapon (pati). Thus, this contradiction between ocular evidence and medical evidence creates serious dent in the prosecution case.
31. As far as medical evidence regarding injured Rohit is concerned, PW.15 Dr. Gopal Krishna Mehta has been examined, who has stated that on 23.12.2013 on the request of SHO Police Station Bhusawar, he examined injuries of Rohit son of Churaman, and found injury nos. 1, 2 and 3 to be grievous and injury no. 4 to be simple. In his cross-examination he has stated that injuries of the injured were old injuries and they were not new. It is true that I prepared Exhibit-P.16 on the basis of documents of treatment prepared in Jaipur but those documents were not prepared by me. Thus, he has stated that he prepared the injury report Exhibit-P.16 on the basis of documents which were prepared during treatment of injured in Jaipur Hospital but clinical documents have not been produced on file. Witness PW.15 stated that Exhibit-P.17 is his opinion, which was given on the basis of clinical notes of S.M.S. Hospital, but he has admitted that clinical notes were not on file. In addition to it, prosecution has not examined the treating doctor, under whose treatment injured was admitted in S.M.S. Hospital at Jaipur. Rather, the report was prepared by Dr. Gopal Krishna Mehta, MO CHC Bhusawar, who had not treated the injured, Rohit. PW.15 prepared the injury report on the basis of documents of S.M.S. Hospital, but clinical notes have not been exhibited in the evidence and the documents on which PW.15 relied, have not been prepared by him and the (Downloaded on 26/08/2020 at 09:06:17 PM) (17 of 20) [CRLA-949/2015] doctors who prepared those documents, have not been examined in the course of prosecution evidence.
32. Thus, the medical evidence produced by the prosecution is not adequate enough to connect accused appellants with the charges.
Recovery of Weapon of Assault
33. PW.7 Harkesh and PW.8 Prithvi have been examined by the prosecution for proving the fact of recovery of weapons of assault from the accused appellants. PW.7 has been declared hostile. He has stated that no faoda (shovel) was recovered in his presence. He has admitted his signatures in Exhibits-P.7 and P.8 but has denied that any faoda or wooden pati was recovered in his presence from the accused appellants. In cross-examination he has categorically stated that no pati was recovered from possession of Chet Ram in his presence and no faoda (shovel) was recovered from the possession of accused appellant Shiv Ram in his presence. He was made to sign on blank papers.
34. Similarly, PW.8 has also been declared hostile and he has not supported Exhibits-P.7 to P.10. He has denied the fact that any wooden pati or faoda was recovered from the possession of accused appellants in his presence.
35. Thus, the independent witnesses of recovery of weapon of assault have not supported the prosecution case.
36. Exhibit-P.7 was prepared on 21.12.2013 and Exhibit-P.9 was also prepared on 21.12.2013. Exhibit-P.9 is the seizure memo of wooden pati on the basis of information received from accused appellant Chet Ram under Section 27 of the Evidence Act. (Downloaded on 26/08/2020 at 09:06:17 PM)
(18 of 20) [CRLA-949/2015] As per Exhibit-P.9, this pati was recovered from the room of accused appellant Chet Ram in his residential house. PW.21, who is the Investigating Officer of the case, has stated that accused appellant Chet Ram gave an information under Section 27 of the Evidence Act that he has concealed one pati in his room below his cot, which was recovered from that room in pursuance of information given under Section 27 of the Evidence Act. Exhibit- P.9 was prepared on 21.12.2013, while the incident is of 23.09.2013. Thus, the recovery was made after three months of the incident and it is not natural that the accused appellant would have kept the weapon of assault in his own room for almost three months after the incident. Further, the attesting witnesses of the seizure memo have turned hostile. Thus, the recovery of weapon of assault is doubtful and prosecution has failed to prove the recovery of weapon of assault from the accused appellants. Further, the weapon of assault, which was recovered from accused appellant Chet Ram, has not been connected with the fatal injury caused to the deceased Churaman. Thus, the recovery of weapons of assault does not support the prosecution case. FIR
37. Written report was given by complainant Girdhari Lal on 24.09.2013 regarding the incident which took place in the evening of 23.09.2013. PW.5 Guddi has stated in her deposition that she has given a written report in police station Bhusawar, but that report has not been placed on file. Apart from this, PW.21 Investigating Officer Mr. Nemi Chand has stated that he received the information about the incident on the night of 23.09.2013 on (Downloaded on 26/08/2020 at 09:06:17 PM) (19 of 20) [CRLA-949/2015] telephone and he immediately reached the place of occurrence on the same evening at 8:00 or 9:00 P.M. Injured had been taken to the hospital by the time he reached the place of occurrence, but surprisingly this information which was received by the Investigating Office on 23.09.2013, as per his own statement, has not been exhibited in the prosecution evidence and if the Investigating Officer received the information on 23.09.2013 itself and he reached on the spot, then why it was not reduced to writing and why no document has been prepared regarding this information, has not been clarified by the Investigating Officer. Rather, in contradictory statement he stated that the report was received by him on 24.09.2013, which was submitted by complainant Girdhari Lal. Thus, there are contradictory statements regarding the receiving of information by the police, which also adversely affects the prosecution case and creates doubt in the prosecution story. Prosecution has also failed to clarify the inordinate delay in the conduct of investigation by the Investigating Officer. Even the statements of prime eye-witnesses were recorded after lapse of 1½ months. It is not the case of the prosecution that those eye-witnesses were not traceable. The failure of investigating agency to act promptly and record the statements of Eye-witnesses without any unreasonable delay, casts doubt on the veracity of the prosecution and seriously affects the credibility of the Eye-witnesses.
38. In view of above discussion, we are of the opinion that the prosecution case suffers from number of infirmities and contradictions. Ocular evidence is not consistent and inspiring. There is contradiction between ocular evidence and medical (Downloaded on 26/08/2020 at 09:06:17 PM) (20 of 20) [CRLA-949/2015] evidence. Recovery of weapon of assault is doubtful and it has not been proved that the weapon of assault, which has been recovered was used for the commission of the offence by the accused appellants. Apart from this, there other major contradictions in the prosecution evidence as discussed above. Hence, prosecution has failed to establish the charge/s against the appellants beyond reasonable doubt and accordingly the instant appeal deserves to be allowed.
39. Resultantly the appeal is allowed and the conviction and sentence passed against the appellants by learned Additional Sessions Judge No.1, Bayana District Bharatpur, are set aside. Accused appellant Chet Ram shall be released forthwith, if he is not required in any other case. Accused appellant Shiv Ram is already on bail, so, he need not surrender and his bail bond is cancelled and sureties are discharged. However, the accused appellants are directed to comply with the provisions of sec 437A of CrPC.
40. Let record of the learned trial Court be sent back expeditiously with a copy of this judgment. Learned trial Court is also directed to ensure compliance of sec. 437A of CrPC. (MANOJ KUMAR VYAS),J (GOVERDHAN BARDHAR),J .db/..
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