Rajasthan High Court - Jaipur
Bhanwar Lal And Ors. vs State Of Rajasthan on 24 May, 2001
Equivalent citations: 2001(4)WLN596
JUDGMENT Sharma, J.
1. These two appeals, one through Superintendent Central Jail, Kota and another in representative capacity are directed against the judgment dated 25.1.97 passed by the Sessions Judge, Jhalawar, by which he has convicted accused appellant Bhanwar Lal under Section 302 IPC and sentenced him to life imprisonment.
2. Briefly stated the facts of the prosecution case are, that PW.9 Chhagan Lal, so called eye witness to the occurrence lodged an oral report at Police Station, Jhalawar on 18.1.95 at about 10.40 P.M. stating therein that on 18.1.95 at about 10.00 P.M. he was going to the house of Bhagwan Singh alongwith Kanchan Bai wife of Shri Bhagwan Singh. When he reached near the house of Master Jaffer Bhai situated in Nala-Mohalla, accused Bhanwar Lal all of a sudden appeared and inflicted a sword blow on the head of Kanchan Bai, as a result of which she fell down and blood oozed out, when he tried to save Kanchan Bai, accused Bhanwar Lal inflicted sword blow which hit in between his left thumb and finger. Accused also inflicted injury on his paw. He tried to catch hold of accused, but he failed in his efforts. Thereafter accused further inflicted 2-3 blows by sword on Kanchan Bai. Hearing cries, Bhagwan Singh, Mehar and Badan Singh, Constable came to the place of occurrence and cought hold of accused Bhanwar Lal with sword in his hand.
3. On the basis of the above oral report, police registered a case for offence under Section 307 IPC against the accused appellant vide FIR Ex.P.9 and proceeded to investigate the case. During investigation, PW.6 Manvendra Singh, SHO arrested the accused on 18.01.95 at 11.45 P.M. vide arrest memo Ex.P.16. At the time of arrest, one sword was also taken in possession vide Ex.P.3. The Investigating Officer also took in possession one pair of shoes and pajama of accused stained with blood vide Ex.P.4 dated 10.1.95. He visited the site and prepared site plan on 19.01.95 and took in possession blood smeared soil, control soil, one pair of ladies chappie, one pair of gents chappie, towel and blanket and prepared memos Ex.P.12, P.13, P.14 P.10 respectively. He also prepared inquest report Ex.P.15 on 19.1.95 at 10.00 A.M.
4. Injured Kanchan Bai was taken to the hospital where she scummed to her injuries. PW. 2 Ramesh Chand Dubey conducted post-mortem on the body of deceased and found following injuries on her person.
Verticle clear cut incised wound 4" x 1/2" Bone deep over left parietal bone.
Clear cut incised wound 3/4" x 1/8" x 1/8" over hid of pinnae of left ear.
5. The Dr. also found fracture of left parietal bone. According to him injury No. 1 was sufficient in the ordinary course of nature to cause death. He opined that the cause of death is comma due to intra cranniel haemmorhage due to head injury. He prepared his report Ex.P.2. He also examined the injuries of Chhagan Lal and found one incised wound and three abrasions and one bruise on his body and prepared injury report Ex.P.1.
6. After the post-mortem examination, the Investigating Officer took in possession the clothes of deceased stained with blood vide memo Ex.P.5. On 24.1.95 accused gave information Ex.P.17 for recovery of Myan (cover of sword) and consequent to the information police recovered 'Myan' vide memo Ex.P.18 and also prepared site plan Ex.P.19 of the place of recovery. The recovered articles were sent for chemical examination. The report of chemical examination Ex.P.20 indicates the presence of human blood on shoes, pajama, blood smeared soil, shawl, petticot, saree and blouse. The origin of stains on sword could not be determined because of its insufficiency for test. The Investigating 'Officer also recorded the statement of witnesses u/n 161 Cr. P.C.
7. On completion of investigation, the police submitted a charge sheet agains the accused appellant Under Sections 302, 307, 341, 324 and 323 IPC in the Court of Judicial Magistrate 1st Class, Jhalawar, who in turn committed the case to the Court of Sessions.
8. The learned trial Court after hearing counsel for both [he sides, framed charges against the appellant Under Sections 302 and 324 IPC, to which the accused denied and claimed trial.
9. During trial, the prosecution, to proves its case examined as many as 12 witnesses and exhibited some documents. Thereafter, the accused was examined Under Section 313 Cr.P.C. for the purposes of enabling him personally to explain the circumstances existing against him. He did not examine any witness in his defence. However, in his statement Under Section 313 Cr.P.C. he has taken the plea that while he was going alongwith his wife, some person attacked on his wife Kanchan Bai and inflicted injuries by sword, which resulted in her death.
10. After completion of trial, the learned trial Court convicted and sentenced the appellant as aforementioned. Hence, these appeals.
11. We have heard learned counsel for the accused appellant and the learned Public Prosecutor and perused the judgment under challenge and the record of the case.
12. The trial Court while convicting the appellant has mainly relied upon the evidence of so called eye witnesses PW. 1 Badan Singh. PW. 9 Chagan Lal so called informant and eye witness has not supported the prosecution version and has been declared hostile. Another eye witness of occurrence Bhagwan Singh could not be examined since he was not traceable at the given address as is evident from a perusal of the order sheet drawn by the trial Court on 4.11.96. The trial Court has also relied upon the evidence of PW.2 Dr. Ramesh Chand Dubey.
(13. Having gone through the evidence and judgment of the trial Court, we find that the finding arrived at by the learned trial court in believing the evidence of so called eye witness appears to be unreasonable. PW. 1 Badan Singh, so called first eye witness has simply stated that he saw accused Bhanwar Lal standing with a sword in his hand and Kanchan Bai was lying injured on ground. In cross-examination, he has specifically stated that he did not see the accused appellant inflicting injuries on the person of deceased Kanchan Bai. Another so called eye witness PW.9 Chhagan Lal who is also the author of oral report about the incident has not supported the prosecution version. This witness has even denied to have lodged the oral report, which is the earliest version of the prosecution case and the entire investigation proceeds on the basis of that document. However, this witness admits that he rushed to the place of incident on hearing cries of a woman and saw a person running from the scene of occurrence and the woman lying on the ground, blood oozing out from her head. He further stated in his cross-examination that he had seen the face of the person who inflicted injuries by sword on the person of deceased and the accused appellant was not that person who struck blows and caused injuries by sword. Thus, on reappreciation of evidence, we are of the view that it would not be safe to rely on the evidence of two so called eye witnesses. The suspicion however strong enough, cannot lake place of proof.
14. Now coming to the question of recovery of 'Myan', suffice it to observe that the recovery of 'myan' is doubtful. On perusal of record, we find that the recovery of 'myan' has been made from a house, which belonged to one Jodhraj Singh. That apart, the prosecution has failed to connect the recovered 'mayn' with the sword, alleged to have been used in the commission of offence. Thus, the recovery of 'myan' is also of no help to the prosecution case.
15. Admittedly, the deceased succumbed to injuries on her person. The evidence of PW 2 Dr. Ramesh Chand Dubey makes it clear that Kanchan Bai died of head injury. Thus, there is no reason to disbelieve the evidence of PW 2 Dr. Ramesh Chand Dubey. However, the cause of death having proved on the basis of medical evidence alone is not sufficient to connect the accused with the commission of offence. The question that arose for consideration is whether the accused appellant was responsible for causing such injury which proved fatal and ultimately resulted in death of deceased Kanchan bai.
16. On a perusal of the record, we find that the prosecution has not led any evidence, except the so called eye witnesses, to establish beyond reasonable doubt the infliction of injuries on the person of Kanchan bai, deceased by the accused appellant with sword so as to hold him guilty for offence under Section 302 IPC. What stands proved from the prosecution evidence is that accused appellant was found present on the spot having blood stains on his cloths and sword in his hand and Smt. Kanchan Bai lying in injured condition on the ground. Mere presence at the scene of occurrence, though proved, is not sufficient to connect a person with the commission of offence unless it is established that he participated in the commission of offence, particularly, in the present case, the defence of the appellant from very beginning has been that he along with his wife was going home from the market. He was little behind as His wife had proceeded ahead. All of a sudden, hearing her cries, he rushed to her and found her lying on the road and blood was oozing out and a sword lying. He had seen Bhagwan Singh running. He followed Bhagwan Singh but the persons present there asked him not to follow, otherwise he will also kill him. From a perusal of his statement under Section 313 Cr. P.C. we also find that suggestions to this effect were made and he replied about his presence on the place of occurrence as stated above. When accused was present on the spot, his wife was lying in a badly injured condition, presence of blood stains on his cloths is obvious, which in our opinion, cannot be termed to be proof against him.
17. Judged thus, we are of the opinion that the prosecution has not been able to establish beyond reasonable doubt that it was accused appellant Bhanwar Lal who is responsible for the commission of murder of his wife and the trial court has seriously erred in recording findings of guilt against the accused appellant believing the prosecution evidence.
18. Consequently, both the appeals stand allowed. The conviction of the appellant under Section 302 IPC and the sentence awarded by the trial court is set aside. The appellant is in Jail and he be released forthwith, if not required in any other case.