Rajasthan High Court - Jodhpur
Rakesh Kumar @ Rocky vs State on 19 November, 2018
Author: Vinit Kumar Mathur
Bench: Sandeep Mehta, Vinit Kumar Mathur
(1 of 14) [CRLA-1005/2012]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1005/2012
Mahaveer Prasad S/o Jeet Ram, by caste Raigar, resident of
Ward No.19, Sadulshahar, District Sri Ganganagar.
(At present confined in Central Jail Sri Ganganagar).
----Appellant
Versus
The State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 972/2012
Rakesh Kumar @ Rocky son of Shri Gurdayal Ram, by caste
Meghwal, resident of Ward No. 8, Sadulshahar, District Sri
Ganganagar
(Lodged in Central Jail, Sri Ganganagar).
----Appellant
Versus
The State of Rajasthan.
----Respondent
For Appellants : Mr. Ram Rakh Vyas & Mr. Mridul Jain
For Respondent : Mr. C.S. Ojha, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Per Hon'ble Mr. Vinit Kumar Mathur, J.
19/11/2018 Both the appeals arise out of a common judgment dated 17/10/2012, therefore, the same are being heard together and decided by this common judgment.
(2 of 14) [CRLA-1005/2012] The instant criminal appeals have been filed by the appellants to challenge the judgment dated 17/10/2012 passed by the Additional Sessions Judge No.2, Sri Ganganagar in Sessions Case No. 01/2012, whereby the appellants have been convicted for the offence under Section 302 read with Section 34 of IPC and sentenced for life imprisonment with a fine of Rs.5,000/- each in default of payment of fine, to further undergo six months simple imprisonment.
The case of the prosecution emanates from the complaint (Ex.P.14) lodged by Vimla Devi (PW.9) on 27/10/2011, wherein she stated that her son Kanwar Singh Rana was alighting fire crackers in front of their house and at around 11 p.m., while she was sitting with her sister and brother-in-law Jagdish Prasad, they heard hue and cry. When they ran outside their house, they saw Rakesh S/o Guru Dayal restraining Kanwar Singh with his arms and Mahaveer Raigar was giving knife blow on the left side of his chest. On raising alarm by her sister and brother-in-law, the accused ran away from the spot. Kanwar Singh was taken to the hospital with the help of neighbours on a motorcycle. Kanwar Singh succumbed to the injuries in the hospital. The accused persons were keeping the enmity with the deceased Kanwar Singh as they had a heated altercation earlier in the day and for this reason, her son was killed by the accused persons by stabbing.
On this information, police lodged a formal F.I.R and the matter was investigated and challan was filed under Section 302/34 IPC against the accused appellant.
(3 of 14) [CRLA-1005/2012] Learned trial Court framed charges against the accused appellant for the offence under Section 302/34. The accused denied the same and preferred trial in the matter.
During the trial, as many as 11 prosecution witnesses were examined and in all 33 documents were exhibited and 8 documents were got exhibited in defence side.
Thereafter, accused appellants were examined under Section 313 Cr.P.C. and were confronted with the evidence adduced during trial to which they denied and submitted that they were innocent and had been falsely implicated in the matter.
Learned trial Court, after hearing the arguments advanced on both the sides and after taking into consideration the statements of witnesses and the documents exhibited, convicted and sentenced the accused appellants for offence under Section 302/34 IPC and sentenced them as above. Hence, these appeals.
Heard learned counsel for the appellants and learned public prosecutor.
Learned counsel for the appellants Mr. Ram Rakh Vyas & Mr. Mridul Jain have vehemently argued that present is a case in which the appellants are being falsely implicated and instead the real culprits Sharanjeet Singh and Robin Vadhawa have been let out and the correct version of the incident has not been brought on record. They further submit that eye witness to the incident i.e. PW.5 Jagdish Prasad is a planted witness and since he is a close relative of the deceased, he has appeared in the witness box and narrated the story which is totally incorrect and the statement of (4 of 14) [CRLA-1005/2012] this witness is wholly unreliable. It was further submitted that PW.5 Jagdish Prasad was not even present on the site and has not taken the injured to the hospital as there is nothing on record of the hospital to show that the injured was brought by PW.5 Jagdish Prasad. There is no memo/fard prior to the postmortem of the deceased on which PW.5 Jagdish Prasad has ever affixed his signatures.
We were elaborately taken through the statement of Jagdish Prasad and it was urged that there are material contradictions in the statement which banish the fact of this witness being present on the spot and, therefore, his testimony as an eye witness is required to be disbelieved and discarded.
They submit that there is no statement of the persons living in the neighbourhood although the house is located in a thickly populated area which creates doubt in the entire story of prosecution. They further submit that when the injured Kanwar Singh was allegedly taken to the hospital on motorcycle by PW.5 Jagdish Prasad and one more person and the injured was profusely bleeding but neither the blood stains were seen on the clothes of PW.5 Jagdish Prasad nor the person who accompanied him on the motorcycle much less no blood stains were also seen on the motorcycle on which the injured was carried to the hospital.
They have further submitted that the Investigating Officer has also not found any left overs of crackers from the place of incident, therefore, it can safely be presumed that the statements of the eye witnesses are of no worth and the place of incident is (5 of 14) [CRLA-1005/2012] not the same which is being said to have been stated in the site plan as well as in the statement of these witnesses. They have further submitted that there are three daughters in the family of the deceased and PW.5 Jagdish Prasad, their presence is conspicuously absent and none of them has been produced in the witness box. They further argue that in the statements of witnesses, it has come on record that after stabbing the deceased, the accused persons ran away from the place of incident on foot then the recovery of motorcycle is of no consequence. He has further submitted that in the statements of doctor, nothing has come on record that the as to who brought the deceased to the hospital or at what time. He has further submitted that the recovery of knife is from an open place and the same has been effected after a period of five days which creates doubt in the prosecution story that a person will not allow the weapon of offence to remain blood stained for five days.
Sharan Jeet Singh who accompanied PW.5 Jagdish Prasad on motorcycle while taking the deceased to the hospital has not been produced in the witness box. They further submit that Vimla who is the mother of the deceased who was present at the time of incident was not taken to the hospital but went to the police station for lodging the F.I.R. which reflects unnatural conduct. He vehemently argues that there are material contradictions in the statements of prosecution witnesses. The recovery being highly doubtful and the chain of circumstances being not so complete only indicates that the appellants are not the only persons who have committed the offence alleged against them. Therefore, the (6 of 14) [CRLA-1005/2012] counsel submit that learned trial Court has committed an error while convicting the appellants vide judgment dated 17/10/2012 for the offence under Section 302/34 IPC and, therefore, he prays that the appeals deserve acceptance by this Court by setting aside the judgment dated 17/10/2012.
On the other hand, learned public prosecutor has supported the judgment dated 17/10/2012 passed by learned trial Court and submitted that three eye witnesses, namely, PW.5 Jagdish Prasad, PW.8 Sulochana Devi and PW.9 Vimla Devi have categorically stated in their statements that the appellants were the assailants them. He has further submitted that there is no deviation and contradictions in the statements of the prosecution witnesses. The recovery of the blood stained weapon of offence on the information given by the accused under Section 27 of the Evidence Act coupled with the postmortem report and the statement of Dr. PW.2 Mahesh Gupta conclusively proves that the appellants have committed murder of the deceased and the learned trial Court after appreciating the evidence on record has correctly held the appellants guilty of committing the offence under Section 302/34 of IPC and, therefore, learned trial Court was right in convicting the appellants for the offence alleged and no interference in the judgment dated 17/10/2012 is warranted by this Court.
We have considered the submissions made at the bar and have closely scrutinized the record of the trial Court.
PW.5 Jagdish Prasad has stated that on 26/10/2011 at around 11 p.m., he with his wife Sulochana Devi had gone to his brother's house and they were talking with the sister-in-law Vimla (7 of 14) [CRLA-1005/2012] Devi. His nephew Kanwar Singh was firing crackers out side. They heard hue and cry and when all three of them ran out and they saw that Rakesh was restraining Kanwar Singh with his arms and while he was trying to get free from him, Mahaveer stabbed him on the left side of the chest. They raised an alarm, both the accused persons fled from the spot after pushing Kanwar Singh. Kanwar Singh fell on the ground and with the help of neighbours, he was taken to the hospital where he died after some time. He telephoned his uncle and after leaving his uncle at the hospital, he went back home. Thereafter, he took Vimla Devi PW.9 to the police station and lodged the report-Ex.P.14. While the police was investigating the matter, certain memos were prepared during the course of investigation on which he affixed the signatures. Detailed cross-examination was done of this witness but nothing contrary was stated by the witness.
PW.6 Laxman Ram who is the distant relative of the deceased and he has stated in his statement that he affixed the signatures on the memos prepared by the police during the course of investigation. He further stated that on receiving the call from PW.5 Jagdish Prasad, he went to the hospital where four or five persons were present and he has not seen Kanwar Singh after reaching the hospital. He was present when police came to the hospital but Jagdish Prasad PW.5 was not present.
PW.8 Sulochana Devi is the wife of PW.5 Jagdish Prasad. She has stated almost on the same lines as submitted by PW.5 Jagdish Prasad. She stated that while they were sitting in the house of Vimla Devi. On hearing the noise, they went out and saw (8 of 14) [CRLA-1005/2012] that Rakesh had held the deceased and Mahaveer was stabbed a blow on the chest. In the cross-examination, nothing contrary has been stated by this witness.
PW.9 Vimla Devi who is the mother of the deceased has also stated the version of the incident similar to the one which has been stated by PW.5 Jagdish Prasad and PW.8 Sulochana Devi. She has stated that because of the scuffle which took place between his son and the accused persons, the accused were keeping enmity and in order to settle the score, they stabbed her son to death. In the cross-examination of this witness, nothing contrary has come on record.
PW.11 Sunil Kumar is the Investigating Officer who investigated the matter. During the course of investigation, he recorded statements of witnesses, collected samples, prepared memos in accordance with the provisions of law and has submitted the charge sheet before the Court of competent jurisdiction.
PW.2 Dr. Mahesh Gupta while posted as Government Doctor Sadulsahar conducted the postmortem of the deceased and in his statement, he has stated that there were two injuries, one on the left side of the chest over the nipple of a dimension of 2x.7x7 cm pierce into the chest and another was bruises of 3x2 cm on the left shoulder. The cause of death was also shock and excessive bleeding due to the injury.
Ex.P.3 is postmortem report wherein the injury of incised wound of 2x0.7x7 cm has been shown on the left side of the chest and the cause of death is opined to be as haemorrhage (9 of 14) [CRLA-1005/2012] shock due to incised wound.
Ex.P.22 is the recovery memo of motorcycle and Ex.P.23 is the recovery memo of weapon of offence knife on the information given by Mahaveer Prasad under Section 27 of the Evidence Act.
Ex.P.32 is the report of the Forensic Science Laboratory as per which blood of human origin was found on the articles sent for FSL.
A close reading of the entire discussions made hereinabove takes us to the fact that PW.5 Jagdish Prasad, PW.8 Sulochana Devi and PW.9 Vimla Devi are the close relatives of the deceased and their presence on the spot is natural. Since PW.5 and PW.8 reside next door to the house of the deceased, their presence in his house is quite natural more particularly when the occasion is of Deewali. Therefore, there is no reason to disbelieve their version as eye witnesses to the incident. In the statements of PW.5 Jagdish Prasad, PW.8 Sulochana Devi and PW.9 Vimla Devi, they have stated that Rakesh had restrained the deceased with his arms and Mahaveer stabbed on the left side of his chest and when they shouted, the accused left the deceased and ran away from the spot. Therefore, in the circumstances, Kanwar Singh was taken to the hospital where he died within ten minutes as it has come on record that he was brought to the hospital at 11.10 and he died at 11.20. Therefore, there was very little scope with the doctor who attended him to perform any operation etc. as he was brought in the hospital in a very critical condition. It is a settled proposition of law that ocular evidence in a criminal case is the best evidence if it is credible and without any infirmity or (10 of 14) [CRLA-1005/2012] deviation. In the present case, we find that three eye witnesses, who have narrated the incident without any infirmity and their statements are consistent on the point of seeing the incident. Therefore, there is no reason for us to disbelieve the testimony of these three witnesses i.e. PW.5 Jagdish Prasad, PW.8 Sulochana Devi and PW.9 Vimla Devi. The testimony of these witnesses cannot be discarded only on the ground that they are close relatives of the deceased as in para Nos.24 to 28 in the case of Yogesh Singh vs. Mahabeer Singh reported in AIR 2016 SC 5160, the Hon'ble Supreme Court has held as under:-
"24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 = 1954 SCR 145, is one of the earliest cases on the point. In that case, it was held as follows:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 = (1977) 4 SCC 452, this Court held:
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
(11 of 14) [CRLA-1005/2012]
26. In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:
".. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
27. Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by this Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy (12 of 14) [CRLA-1005/2012] & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52)".
Therefore, solely on this ground that they are interested witnesses, their testimony cannot be discarded.
We are also not impressed by the argument of learned counsel for the appellants that the presence of PW.5 Jagdish Prasad on the spot is doubtful as the presence of Jagdish Prasad is very much stated in the statements of PW.8 Sulochana Devi and PW.9 Vimla Devi and nothing adverse has come on record in the cross-examination regarding the presence of PW.5. As far as the presence of Jagdish Prasad in the hospital is concerned, it has come on record that after calling the grandfather-PW.6 Shri Laxman Ram to the hospital, he went home and took Vimla to the Police Station for lodging the F.I.R. Besides this, minor deviations which have been pointed out in the statements by learned counsel for the appellants are not very material as the sequence of events shows that the statements of the eye witnesses are quite natural and without any deviation. Merely because the blood stains were not found on the persons who carried the deceased to the hospital and on the motorcycle will also have no adverse effect on the prosecution story as it was open for the appellants to produce them in defence if they were of any help to them. Mere factum of the witnesses from the neighbourhood not being produced in evidence will not in any manner discredit the prosecution story as the ocular evidence coupled with the fact of medical evidence and postmortem report clearly establishes the fact that the present appellants were the only persons who have committed the offence alleged against them. The non-production of two persons in the (13 of 14) [CRLA-1005/2012] witness box, namely, Sharanjeet Singh and Robin Wadhawa is also of no consequence as it was very well open for the appellants to produce them from the defense side if they were so material to the incident. Therefore, non-production of these witnesses in the witness box will not be fatal to the prosecution story. As far as the recovery of the weapon of offence is concerned, the same has been made at the instance of the information given by accused Mahaveer Singh under Section 27 of the Evidence Act is only the corroboration of the statement of the eye witnesses and the medical evidence and FSL report showing the blood of human origin which complete the chain of events. In the statements of PW.5 Jagdish Prasad and PW.9 Vimla Devi, it has also come on record that there was a heated altercation between the deceased and the accused persons earlier in the day and to settle the score, the accused persons came to the house of deceased and gave the stab wound to the deceased which ultimately proved fatal.
In our view, the prosecution has completed the chain of events and the statements of the prosecution witnesses are very well corroborated from the postmortem report, FSL and the recovery of the blood stained articles which clearly establishes the fact that the present appellants were the only persons who committed the offence alleged against them.
We fail to understand that there is neither enmity of the family members of the deceased to falsely implicate the present appellants nor there is any material available on record which suggests or points towards the fact that the present appellants are being falsely implicated in the present case.
(14 of 14) [CRLA-1005/2012] As far as the place of occurrence is concerned, there is no doubt that it was in front of the house of the deceased as merely the absence of the traces of fire crackers will not be the ground to disbelieve the fact that the place of incident was not in front of the house of the deceased.
In view of whatever stated above, we do not find any infirmity in the impugned judgment dated 17/10/2012 passed by trial Court and the same is affirmed.
Resultantly, the appeals fail and the same are hereby dismissed.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
Sanjaysolanki, srpa
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