Rajasthan High Court - Jaipur
Pyare Lal And Ors. vs State Of Rajasthan on 19 August, 1987
Equivalent citations: 1987(2)WLN732
JUDGMENT Surendra Nath Bhargava, J.
1. This appeal has been directed against the judgment of Additional Sessions Judge, Gangapur City, passed on 12th June, 1986, convicting and sentencing the accused appellants as under:
Radhey Shyam Under Section 302, I.P.C. Life imprisonment and
a fine of Rs. 200/-, in
default of payment of
fine 2 months' further
RI;
Bharatlal, Shambudayal, Hari Under Section 302 Rule with Life imprisonment and
Ram, Ramesh Chand & Section 149, I.P.C. a fine of Rs. 200/-, in
Pyarelal default of payment
of fine, further RI for
2 months;
Radhey Shyam Under Section 326, I.P.C. 10 years' RI and a fine
of Rs. 200/- in default
of payment of fine,
further RI for 2 months
Bharat Lal, Shambhu Dayal, Under Section 326/149, I.P.C. 10 years R.I. and a fine
Hari Ram, Ramesh Chand, of Rs. 200/-, in default
Pyare Lal of payment of fine, 2
months R.I. each;
Shambhu alias Pappi, Under Section 326, I.P.C. -do-
Bharat Lal
Radhey Shyam, Hari Ram, Under Section 326/149, I.P.C. -do-
Ramesh Chand, Pyare Lal
Radhey Shyam, Bharat Lal, Under Section 148, I.P.C. 2 years R.I. each
Shambhu Dayal alias
Pappi
Hari Ram, Ramesh Chand, Under Section 147, I.P.C. 1 year R.I. each
Pyare Lal
Radhey Shyam, Shambhu Under Section 324, I.P.C. 3 years R.I. and a fine
Dayal alias Pappi, of Rs. 300/- in default,
Bharat Lal 3 months further R.I.
each
Hari Ram, Ramesh Chand, Under Section 324/149, I.P.C. -do-
Pyare Lal
Bharat Lal, Radhey Shyam, Under Section 323/149, I.P.C. 6 months R.I. each
Shambhu Dayal, Hari
Ram, Ramesh Chand,
Pyare Lal
2. Bal Krishan PW-3, submitted a written report on 28th June, 1984 before the Dy. Superintendent of Police, Bhagwan Singh PW 14, at 11.45 p.m. who was camping at Police Station Mahuwa.lt was mentioned there in that on that day, at about 9 p.m. Shabhu Dayal alias Pappi s/o Pyare Lal Sunar had come to his house and called his brother Radhey Shyam. Radhey Shyam thereupon left the house, and he was followed by his father Ram Swaroop and his brother Gopal and in the end he (Bal Krishan) also followed. On the way, they saw 8 to 10 persons, armed with various weapons who made an assault on his brother Radhey Shyam, as a result of which, he fell down on the ground and became unconscious. When his brother Gopal went to Radhey Shyam's rescue, he was also given beating by the accused party. At that time, Ghan Shyam and Prakash and 8 to 10 other persons of the Mohalla intervened and 50 to 60 persons collected there. Thereafter, he returned to his house and informed his relatives. Since Shri Hukam Singh is related to the accused, therefore, a report was being made to the Dy. S.P.
3. On this report, a First Information Report No. 72/84 was registered at 11.49 p.m.
4. After usual investigation, a challan was filed in the court of Magistrate, who committed the case to the court of Sessions Judge. The learned Additional Sessions Judge, Gangapur City, after trial, convicted the accused appellants as aforesaid. Hence, this appeal.
5. We have heard Mr. Dhankar, the learned Counsel for the accused appellants, Mr. A.K. Gupta, learned Counsel for the complainant party, and Mr. Rizwan Alvi, Public Prosecutor, on behalf of the State. We have also perused the judgment of the learned Additional Sessions Judge and voluminous record of the case.
6. The prosecution has examined PW-2 Ram Swaroop, father of the deceased and PW-4 Gopal, brother of the deceased as the two injured eyewitnesses. They have also examined PW-3 Bal Krishan, brother of deceased, PW-3 Prakash Chand, PW-6 Hariram and PW-12 Ghanshyam as other eye-witnesses, out of whom, PW-5 Prakash Chand has been declared hostile as he has not supported the case of the prosecution.
7. The prosecution has also examined PW-1 Mst. Sampati, wife of PW-2 Ramswaroop, and mother of deceased Radhey Shyam, who is not an eye-witness. She has deposed the Pappi had come to her house and called her son Radhey Shyam, and Radhey Shyam left the house. He was followed by her other sons Gopal and Balkrishan and her husband Ramswaroop also followed. In her cross-examination, she had admitted that her husband had immediately followed Radhey Shyam and that Balkrishan was the last person to go. She has further stated that Hariram PW-6 was their tenant.
8. PW-2 Ramswaroop who is the father of the deceased, has stated that Radhey Shyam and Bharatlal were armed with knives and accused Pappi had a sword in his hand, while the other accused persons were armed with lathis. All of them attacked his son, and when he cried, Pappi inflicted a sword blow on his left hand and Radhey Shyam inflicted a knife blow on his right hand and right side of the chest, whereas the accused Bharat Lal also inflicted a knife blow on his right side of the chest. He became unconscious and regained consciousness at the hospital. He was unable to give reason as to why the accused persons had given beeting to the complainant party, though in his cross-examination he admitted that there had been some quarrel but that had been solved. In his cross-examination, he has further stated that he did not see his two sons, PW-3 Balkrishan and PW-4 Gopal, at the site, Surprisingly, he has not given the details with regard to the injuries received by his son Radhey Shyam as to which injury at what place, and with what weapon was inflicted. He also admitted in his cross-examination that it was a dark night, and there was no light at the spot. He was confronted with his statement under Section 161 Cr. P.C. (Ex. D.1) wherein he had stated that the accused Radhey Shyam had lathi in his hand.
9. PW-3 Bal Krishan is also the brother of the deceased who had lodged the FIR (Ex. P.2). He was not an injured person and his presence at the spot has not been admitted by PW-2 Ram Swaroop. He has given details about the injuries caused to his brother Radhey Shyam as well as his father Ram Swaroop. But he did not intervene in the dispute which was a very un natural conduct on his part. He has stated that he shouted for help, but nobody came. He has also established the presence of PW 5 Prakash Chand who had been declared hostile and who did not support the prosecution story. In cross-examination, he has stated that there was light at the place where the incident had taken place, which is contrary to the statement made by his father, PW.2 Ram Swaroop. He has also admitted that he was given beating at Dausa and, therefore, he had gone to the shop of the accused persons and reprimanded them. He was also confronted with his statement recorded under Section 161 Cr. P.C. (Ex. D. 3) wherein he had stated that when Pappi had come to call Radhey Shyam, he had asked that Radhey Shyam Sunar was calling his (Balkrishan's) brother Radhey Shyam for compromise. He has further stated in his cross-examination that none of the members of the complainant party had any arms with him and that none of the accused persons received any injury.
10. PW 4 Gopal Lal, brother of the deceased and who is an injured eye-witness, has also given details of the injuries received by the deceased, Radhey Shyam and his father PW 2 Ram Swaroop. His presence is also not admitted by his father PW 2. He has also admitted that Hari Ram PW 6 was their tenant. He has further stated that he does not know if the accused persons had received any injury.
11. PW 5 Prakash Chand who was examined by the prosecution as an eye-witness, and whose presence is admitted by PW 3 Bal Krishan, does not support the prosecution case and has been declared hostile.
12. PW 6 Hari Ram has also given details as to how Radhey Shyam (deceased) had received the injuries. He has further stated that Ram Swaroop PW 2 and Gopal PW 4 had also received injuries. He had seen the incident from a distance of about 15-20 feet but he did not try to intervene, save, or help the complainant party. He has also admitted presence of Prakash Chand at the time of incident. He had left the place after seeing horrible sight. He also submitted that persons were watching the whole incident from their houses. He also stated that there was street-light near the place of incident. He has strongly denied that he had seen Ghanshyam PW 12 at the spot. His statement was recorded by the Police under Section 161 Cr. P.C. on 4th July, 1984 i.e. after about 7 days.
13. PW 12 Ghanshyam has also stated that Pappi had a sword in his hand. Seeing that Ram Swaroop and Gopal were also inflicted injuries, Ghanshyam left the place. In his cross-examination, he has stated that he did not see any other person at the site nor did he see any arm or weapon in the hands of the members of the complainant party. He has further stated that his neighbours were seeing the incident from the roof of their houses, and that one of them was a Brahmin teacher.
14. PW 14 Bhagwan Singh, Dy. S.P. has stated that a written report was presented to him on 28-6-1984 on which regular FIR (Ex. P. 2A) was registered and that he had prepared the site-plan (Ex. P 4). During the course of cross-examination, he has admitted that there was blood lying outside the gate of the house of the accused, which he had not collected for examination. He has further stated that there was human blood right from in front of the house of the accused to the place of incident. He has admitted that Bharat accused had lodged a cross FIR No. 73/84. He has further admitted that at the time when the accused were arrested they had injuries on their persons and that they were examined by the doctor. As per the investigation, he found that the accused persons had received injuries during the same incident and he submitted the final report in the case, which was lodged by the accused party, as according to him, the complainant party in this case had a right of private defence. He has further stated he had interrogated several persons during the investigation, as according to him, they were present at the place of incident. But none of them was willing to appear as a witness. He has further stated that he did not find any blood on the weapons recovered. He has further admitted that the house of the complainant party was at a distance of about 2-1/2 furlong from the place of occurrence. Blood was found right from the house of the accused upto the place of incident.
15. The accused persons have claimed their right of private defence and they have examined DW 1 Kastoori wife of accused Pyarelal who has narrated the defence version and deposed that members of the complainant party had also received injuries during the incident. The accused persons have also got produced, their injury reports Ex. D 5 to Ex. D. 14 and Ex. D 16 which show that accused Pyarelal, Bharatlal s/o Pyarelal, Shambhu Dayal alias Pappi s/o Pyarelal, Radhey Shyam s/o Pyarelal and Hari Ram and Ramesh Chand accused persons along with Mst. Shanti Bai wife of Bharat Lal, Mst. Kastoori wife of Pyarelal, Gopal s/o Radhey Shyam and Dharmender s/o Bharatlal had also received injuries. The accused Bharat Lal had received one hematoma on his left hand palm. Ramesh Chand had received two incised wounds and one hamatoma on his left hand palm, by sharp edged weapon. The accused Pyarelal had received one lacerated wound on the parietal region. Shambhu Dayal had received one incised wound on his left hand and two hamatoma, abrasions and one incised respectively on right parietal region. Hari Ram had received 3 incised wounds, one of them being on the occipital region and another abrasion. Radhey Shyam had received 2 incised wounds, out of which one was on the middle part of the scalp. Mst. Shanti had received one haematoma and 2 injuries below the right side of her chest. Dharmender had received one hamatoma and 2 bruises. Gopal had received one bruise and one hamatoma on the occipital region at his scalp. Kastoori had received' one bruise on the left side of the chest. Accused Radhey Shyam had to be admitted in the hospital who remained there for about 18 days, and his medical treatment had continued for some more time thereafter.
16. Having examined the evidence on the record, we find that the prosecution has miserably failed to explain the injuries received by the accused persons, which have been duly proved by Dr. Bhagwan Singh PW 9 by the statement of PW 14 Bhagwan Singh, Dy. S.P. and DW 1 Kastoori.
17. The learned Counsel for the accused appellants has placed reliance on the case of Lakshmi Singh v. State of Bihar and also on the cases of Kadar Khan v. State of Rajasthan 1977 Cr. LR (Raj.) 83, Manna and Ors v. State of Rajasthan 1978 WLN 109, Guljar Singh v. State of Rajasthan 1971 Cr. LR (Raj.) 68 and Balak Singh v. State of Punjab .
18. A Division Bench of this High Court in Fatya alias Fateh Lal and Ors. v. The State of Rajasthan and Ors 1987(2) WLN 166 has considered all the above authorities and observed as under:
That the prosecution has not explained the injuries of the accused persons, it appears that the prosecution has suppressed the genesis of the origin of the occurrence, and has thus not presented the true version before the court, and the witnesses who have denied the presence of injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable. The defence story seems to be more probable than the prosecution case.
19. The Court in the above cases, further observed as under:
The prosecution case has to stand on its own legs and cannot seek strength from the weakness of the defence.
20. The prosecution in the present case, has not been fair in as much as it has not cared to examine any independent witnesses who were admittedly present at the spot at the time of the alleged occurrence. As per the statements of prosecution witnesses, the neighbours had seen the incident from the roof of their houses and Prakash was playing cards along with three other persons. In this connection, the learned Counsel for the appellants has drawn our attention to a recent decision of this Court in D.B. Criminal Appeal No. 292/1986 (Ramesh v. The State of Rajasthan) decided on 23rd February, 1987. The prosecution has not examined the material witnesses who were admittedly present at the spot, as per the FIR (Ex. P 2), wherein it is mentioned that 8 to 10 persons of the Mohalla had intervened and about 50 to 60 persons had collected at that time. PW 3 Bal Krishan stated that Prakash was playing cards along with 3 other persons. PW 12 Ghanshyam has stated that the neighbours were watching the incident from the roof of their houses including one Brahmin teacher. PW 14 Bhagwan Singh has stated that during the investigation many persons who were present at the time of incident were interrogated, but none of them came forward to give evidence. In this connection, learned Counsel for the appellants has placed reliance on Ram Lakhan Singh and Ors. v. The State of UP AIR 1977 SC 1936. He has also drawn our attention to the case of Ganesh Bhavan Patel and Anr. v. State of Maharashtra wherein their Lordships have observed that delay in recording the statements of the material witnesses casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. In the present case, the police recorded the statement of Hari Ram after 7 days, though he was available in the village and was attending on the complainant party.
21. Thus, looking to the evidence produced by the prosecution, we are of the opinion that the accused appellants cannot be convicted under Section 302 read with Section 149 I.P.C. The accused Hari Ram and Ramesh Chand were young boys below 21 years of age and the only overt act assigned to them was that they had inflicted lathi blows to the complainant party, for which there is no evidence. Therefore, they are entitled to be acquitted of all the charges levelled against them. Similarly, accused Pyare Lal, aged 74 years, is also entitled to be acquitted of all the charges because there is no reliable or cogent evidence against him to the effect that he had either thrown stones or inflicted injuries to the complainant party. Accused Radhey Shyam is 45 years of age who himself had received very serious injuries, and so also Bharat Lal. Accused Radhey Shyam on account of serious injuries on his person had to be admitted to hospital where he remained for 18 days. Accused Bharat Lal had also received one injury on his left hand palm. And accused Shambhu Dayal alias Pappi also had received 2 incised wound on right parietal region, in addition to 4 bruises are per Ex. D. 8.
22. But, as discussed above, we are of the opinion that the prosecution witnesses are unreliable and not trustworthy. The prosecution in this case, has completely failed to prove its case beyond reasonable doubt. On account of the infirmities pointed out above, we find that the prosecution has not been able to prove the case against the accused appellants, beyond reasonable doubt. All the accused appellants are entitled to the benefit of doubt. We do not agree with the conclusions arrived at by the Sessions Judge.
23. In the result, this appeal is allowed, the judgment of the learned Sessions Judge Gangapur City dated 12-6-1986 convicting and sentencing the accused appellants, is set aside. The appellants are' acquitted of all the charges levelled against them.
24. Before parting with the case, we would like to observe that out findings and conclusions are based on appreciation of evidence, produced in the case and this will not affect or influence while deciding the counter case which will have to be decided on appreciation of evidence produced in that case.
25. It would be pertinent to mention here that several cases have come before us wherein cross cases registered with regard to the same incident are not disposed of simultaneously by the same Court. We would, therefore, like to observe that as far as possible and practicable, trial in two cross cases arising out of one and the same incident should be held and conclude together and be disposed of on the same day though by separate judgment based on evidence recorded in those cases.