Rajasthan High Court - Jodhpur
Rajveer Singh And Ors vs State on 21 October, 2019
Bench: Sandeep Mehta, Abhay Chaturvedi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1080/2015
1. Rajveer Singh @ Raju S/o Banveer Singh, by caste Rajput,
2. Ajayveer Singh S/o Vikram Singh, by caste Rajput,
3. Kuldeep Singh @ Lalya S/o Shailander Singh, by caste Rajput,
All residents of Kachhola, P.S. Kachhola, District Bhilwara.
(All at present lodged in District Jail, Bhilwara.).
----Appellant
Versus
The State of Rajasthan.
----Respondent
For Appellant(s) : Mr. R.K. Charan.
For Respondent(s) : Mr. Anil Joshi, PP.
Mr. Ramesh Purohit.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE ABHAY CHATURVEDI
JUDGMENT
Date of Reserve ::: 08/08/2019
Date of Pronouncement ::: 21/10/2019
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellants herein have been convicted and sentenced as below vide judgment dated 08.10.2015 passed by the learned Additional Sessions Judge No.2, Bhilwara in Sessions Case No.01/2012:
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Rajveer Singh @ Raju
Offences Sentences Fine Fine Default
sentences
Section 302 IPC Life Imprisonment Rs.3,000/- 3 Years' R.I. Section 307/34 7 Years' R.I. Rs.1,000/ 1 Year's R.I. IPC Section 452 IPC 5 Years' R.I. Rs.500/- 3 Months' R.I. Section 326/34 7 Years' R.I. Rs.1,000/ 1 Year's R.I. Section 341 IPC 1 Month's R.I. Section 323 IPC 1 Year's R.I. Section 4/25 of 1 Year's R.I. Rs.500/- 3 Months' R.I. the Arms Act All the substantive sentences were ordered to run concurrently.
Ajayveer Singh and Kuldeep Singh @ Lalya
Offences Sentences Fine Fine Default
sentences
Section 302/34 Life Imprisonment Rs.3,000/- 3 Years' R.I. IPC Section 307/34 7 Years' R.I. Rs.1,000/ 1 Year's R.I. IPC Section 452 IPC 5 Years' R.I. Rs.500/- 3 Months' R.I. Section 326/34 7 Years' R.I. Rs.1,000/ 1 Year's R.I. Section 341 IPC 1 Month's R.I. Section 323 IPC 1 Year's R.I. All the substantive sentences were ordered to run concurrently. (Downloaded on 21/10/2019 at 09:02:58 PM)
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2. Brief facts relevant and essential for disposal of the appeal are noted herein below:
3. Krishan Gopal (PW-3), the complainant of the case herein, was admitted to the Mahatma Gandhi Hospital, Bhilwara on 23.06.2012. His Parcha Bayan (Ex.P/37) was recorded by Navratan Singh, ASI of the Police Station Kachhola at 06.40 pm., wherein, Krishan Gopal alleged that he and his brother Satyanarayan were sitting at their shop located beside the park near the Kachhola circle on 23.06.2012 at about 3 O' Clock in the afternoon. At that time, Rajveer Singh son of Banveer Singh, Ajayveer Singh son of Vikram Singh, Karan Singh son of Banveer Singh, Banveer Singh son of Fauj Singh, Dharamveer Singh son of Banveer Singh, Yudhveer Singh son of Banveer Singh and 2-3 other unknown persons came there. They entered the shop, pulled Satyanarayan out and assaulted him by knives, guptis and sticks. Multiple blows were landed on the person of Satyanarayan. The complainant rushed out and tried to save his brother on which, he too was assaulted and in the process, he got injuries on his legs, head and other parts of his body. Santosh Devi Khatik, a vegetable vendor, who was sitting outside their shop, also tried to intervene on which, she too was beaten. The bystanders came around to save the victim upon which, the assailants ran away wielding their weapons and threatening that any person, who bore enmity with them, would meet the same fate. The complainant further alleged that the assailants were bearing an ill-will with his family because some time earlier, Rajveer had indulged in eve- teasing his niece Mamta to which, they protested and because of that enmity, the incident was perpetrated. Satyanarayan expired (Downloaded on 21/10/2019 at 09:02:58 PM) (4 of 22) [CRLA-1080/2015] while being taken to the hospital owing to the injuries. He and Santosh were admitted to the Mahatma Gandhi Hospital in an injured condition.
4. On the basis of Parcha Bayan aforestated, an FIR No.49/2012 (Ex.P/40) came to be registered at the Police Station Kachhola, District Bhilwara for the offences under Sections 143, 302, 307, 323, 341 and 452 IPC. Shri Navratan Singh, ASI prepared the Panchnama Lash of Satyanarayan and seized the blood stained clothes removed from his body. The deadbody was subjected to postmortem examination by a Medical Board constituted at Mahatma Gandhi Hospital which issued the postmortem report (Ex.P/26) noticing the presence of as many as 13 stab wounds on the person of Satyanarayan. The multiple stab wounds on the chest punctured the pleural cavity and led to collection of the blood on the right side. Cumulative effect of the injuries led to excessive bleeding causing haemorrhagic shock which proved fatal. The doctor also examined the eye-witness Santosh and issued her injury report (Ex.P/27). Krishan Gopal was also medically examined and the doctor issued his injury report (Ex.P/29). Further investigation was assigned to Chainaram (PW-
1) SHO, Police Station Bigod who carried out the requisite steps of investigation. He inspected the place of incident and prepared the site inspection plan (Ex.P/1). The blood stains seen at the place of incident were collected in cotton swabs and were taken into possession vide recovery memo (Ex.P/2). The blood stained clothes of the injured Santosh were taken into possession vide recovery memo (Ex.P/3). The accused Rajveer Singh @ Raju was arrested on 24.06.2012 at 03.00 pm. (Ex.P/4). The clothes worn (Downloaded on 21/10/2019 at 09:02:58 PM) (5 of 22) [CRLA-1080/2015] by the accused at the time of his arrest, bore blood stains and hence were seized vide seizure memo (Ex.P/5). Rajveer Singh gave an information to the I.O. on 30.06.2012 under Section 27 of the Evidence Act stating that he had concealed the knife used to stab Satyanarayan, in a drum lying under the tin-shed situated at the backyard of his house. The said information was recorded in memorandum (Ex.P/6). In furtherance of this information, the accused took the I.O. to the place stated by him and got recovered a retractable knife with torch admeasuring 24 cm. in all with a 10 cm. blade of which the tip was slightly bent. The blade was partially sharp and partially toothed. The knife was bearing blood stains and was seized vide memorandum (Ex.P/7). The I.O.
also recovered a motorcycle allegedly used by the accused persons for going to the place of incident in furtherance of an information (Ex.P/9) provided by the accused Rajveer Singh under Section 27 of the Evidence Act vide seizure memo (Ex.P/10). The accused Ajayveer Singh was arrested on 24.06.2012 vide arrest memo (Ex.P/14). The clothes worn by him at the time of arrest were also bearing blood stains and were seized vide seizure memo (Ex.P/15). Ajayveer Singh gave an information to the I.O. under Section 27 of the Evidence Act on 30.06.2012 at about 08.15 am. disclosing that the baseball bat used to assault Satyanarayan and Kuldeep had been concealed by him in a shelf above the gallery of his house. This information was taken down in memorandum (Ex.P/16) and acting in furtherance thereof, Ajayveer Singh took the I.O. to the said place and got recovered a baseball bat bearing blood stains which was seized vide memorandum (Ex.P/17). The accused Kuldeep @ Lalya was arrested on 24.06.2012 at 03.30 pm. vide arrest memo (Ex.P/20). Clothes worn by him at the time (Downloaded on 21/10/2019 at 09:02:58 PM) (6 of 22) [CRLA-1080/2015] of arrest were also bearing blood stains and were seized vide seizure memo (Ex.P/21). Kuldeep gave an information under Section 27 of the Evidence Act to the I.O. on 30.06.2012 at 08.30 am. regarding he having concealed an iron pipe used to assault Satyanarayan and Krishan Gopal in his Kaccha house. The said information was taken down in the memorandum (Ex.P/22) and acting in furtherance thereof, Krishan Gopal took the I.O. to the place and got recovered an iron pipe admeasuring 3 ft. 16 cm. having blood stains which was seized vide seizure memo (Ex.P/23). The I.O. recorded informations given by all the three accused and verified the place of incident. The seized articles were deposited with the Maalkhana Incharge and were later on forwarded to the FSL for analysis.
5. The investigation was concluded and a charge-sheet came to be filed against all the accused appellants for the offences under Sections 302, 307, 452, 341, 323, 324, 326/34 of the IPC and in addition to that, for the offence under Section 4/25 of the Arms Act against the accused Rajveer Singh. As the offence under Section 302 IPC was exclusively Sessions triable, the case was committed and transferred to the court of Additional Sessions Judge No.2, Bhilwara for trial. By the order dated 05.01.2013, the accused appellants were discharged from the offence under Section 324 IPC and were charged with the remaining offences. They pleaded not guilty and claimed trial.
6. The prosecution examined as many as 22 witnesses and exhibited 57 documents and 11 Articles to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted (Downloaded on 21/10/2019 at 09:02:58 PM) (7 of 22) [CRLA-1080/2015] with the circumstances appearing against them in the prosecution evidence, the accused denied the same and claimed to have been falsely implicated owing to a monetary dispute. After hearing the arguments advanced by the prosecution and the defence and evaluating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellants as above. Hence this appeal.
7. Shri R.K. Charan, learned counsel representing the appellants vehemently and fervently urged that the entire prosecution case is false and fabricated. The very foundation of the case i.e. the Parcha Bayan which was treated to be the FIR was as a matter of fact, nothing but a signed statement under Section 161 Cr.P.C. which would be hit by Section 162 Cr.P.C. because Navratan Singh (PW-15) had already recorded the Panchnama Lash (Ex.P/34) at 06.00 pm. on 23.06.2012 wherein, all the facts i.e. description of the entire incident, names of the accused, use of sharp edged weapons and names of the victims are mentioned. Thus, as per Shri Charan, the Parcha Bayan is a manipulated/ fabricated document. His further submission was that the entire prosecution case is falsified because numerous persons were named as assailants in the Panchnama Lash (Ex.P/34) as well as in the Parcha Bayan (Ex.P/37). However, the charge-sheet was filed against only three appellants without assigning any reason as to why the other accused persons who were named in both these inceptional documents as well as in the investigational statements of the eye-witnesses were being left out. He further contended that there is no allegation in the Parcha Bayan (Ex.P/37) as well as in the Panchnama Lash (Ex.P/34) (Downloaded on 21/10/2019 at 09:02:58 PM) (8 of 22) [CRLA-1080/2015] (containing detailed description of the incident) regarding use of any blunt weapons by the assailants and all of them have been assigned sharp edged weapons. Even the names of the appellant Ajayveer Singh and Kuldeep Singh were not mentioned in the Parcha Bayan (Ex.P/37) but still, they were arrested, charge- sheeted and convicted without there being any plausible evidence on record of the case so as to connect them with the offences alleged. Shri Charan further submitted that the statements of the prosecution witnesses are fraught with material contradictions, inconsistencies and vacillations. Both the alleged eye-witnesses have made major improvements/ omissions from their previous statements and as such, their evidence is not reliable. The statement of Krishan Gopal (PW-3) is belied and contradicted by his own version as set out in the Parcha Bayan. Santosh (PW-6) firmly denied that she was ever examined by the police during investigation and thus, her evidence becomes doubtful. He further urged that the allegations levelled by these witnesses regarding the participation of the accused who have been attributed blunt weapons are clearly falsified by the medical evidence because not even a single blunt weapon injury was found on the person of the deceased as per the postmortem report (Ex.P/26). Smt. Santosh was undoubtedly present in the hospital yet, her investigational statement was recorded much later. Most of the witnesses examined by the prosecution are closely related to the deceased and thus, their evidence is partisan in nature. The entire investigation was manipulated by Vinod Kumar brother of the deceased who is an Advocate. No significant evidence was given by the prosecution for attributing motive of the incident to the accused appellants. The evidence of recoveries of weapons is (Downloaded on 21/10/2019 at 09:02:58 PM) (9 of 22) [CRLA-1080/2015] totally concocted because the accused were arrested on 24.06.2012 and were sent to judicial custody on 25.06.2012. Till that date, there was no information of the accused regarding concealment of the weapons. Later on, the State filed a revision wherein, police custody remand was granted and the recoveries were effected as late as on 30.06.2012. The prosecution did not lead proper link evidence so as to establish the fact that the weapons and other articles allegedly recovered at the instance of the accused were kept in the self same sealed condition right from the time of seizure till they reached the FSL for analysis. The evidence of the witnesses who proved the link evidence i.e. Ramkumar (PW-7), Mahaveer Prasad (PW-8), Gopal Lal (PW-13) and Laluram (PW-22) is inconsistent. No entries were made in the Maalkhana registers (Ex.P/38 and Ex.P/38A) regarding transmission of these articles from the Maalkhana. Shri Charan submitted that there is a grave discrepancy regarding the name and identity of the accused Ajayveer Singh which is evident from the statements of the material witnesses examined by the prosecution.
8. In support of his contentions, Shri Charan placed reliance on the Supreme Court Judgments rendered in the cases of Abdul Sayeed vs. State of Madhya Pradesh, reported in (2011) AIR (SC) Cri 964 and Tahsildar Singh & Anr. vs. The State of Uttar Pradesh, reported in AIR 1959 SC 1012 and implored the Court to accept the appeal; set aside the impugned judgment and acquit the accused appellants of the charges.
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9. Per contra, learned Public Prosecutor as well as the learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by the appellant's counsel. They urged that the prosecution has proved the involvement of the accused appellants in the crime by leading cogent, clinching and convincing evidence. The FIR was registered promptly on the basis of the Parcha Bayan of the injured witness Krishan Gopal who was admitted in the hospital undergoing treatment. As per the learned Public Prosecutor, the minor discrepancy in the prosecution case regarding the details of the incident having been incorporated in the Panchnama Lash (Ex.P/34) can be attributed to the lack of experience on the part of the ASI Shri Navratan Singh. It was contended that in all probability, the ASI must have made the requisite inquiries from Krishan Gopal and thus, he unknowingly proceeded to first prepare the Panchnama Lash with all details and the Parcha Bayan was unintentionally recorded at a later point of time. As per them, this discrepancy is totally trivial and would not effect the credibility of the prosecution case as the same is based on cogent, clinching and convincing evidence of the injured witness Krishan Gopal (PW-3) and the independent injured witness Smt. Santosh (PW-6) the vegetable vendor. They further urged that when the accused were arrested, their clothes were blood stained and they failed to explain this seriously incriminating circumstance. Initially, the learned Magistrate, did not grant the police custody remand of the accused upon which, the prosecution was compelled to approach the Sessions Court through a revision petition wherein, the police custody remand was granted. Since the accused had already been arrested, they had no opportunity to change the place of concealment of the weapons which they (Downloaded on 21/10/2019 at 09:02:58 PM) (11 of 22) [CRLA-1080/2015] had secreted prior to their arrest. These weapons were recovered in a natural sequence of events in furtherance of the voluntary informations supplied by the accused to the I.O. under Section 27 of the Evidence Act. The weapons recovered at the instance of the accused, the blood stained clothes worn by the accused at the time of their arrest, the blood stained clothes of Santosh and the other blood stained articles were forwarded to the FSL from where a report (Ex.P/57) was received concluding the presence of B- Group blood on most of these articles which corroborates the testimony of the eye-witnesses and points unfailingly towards the guilt of the accused. On these grounds, learned Public Prosecutor and the learned counsel for the complainant implored the Court to dismiss the appeal and affirm the impugned judgment.
10. We have given our thoughtful consideration to the submissions advanced at Bar, perused the impugned judgment as well as the original record and have thoroughly re-appreciated the evidence led by the parties.
11. The first document which came to be prepared in this case was undoubtedly the Panchnama Lash (Ex.P/34) which was drawn up by Navratan Singh, ASI at the Mahatma Gandhi Mortuary, Bhilwara on 23.06.2012 at 06.00 pm. It was clearly mentioned in this Panchnama Lash that a telephonic information was received at the Police Station Kachhola that Satyanarayan and Krishan Gopal had been assaulted at their shop by Banveer Singh, Karan Singh, Dharamveer Singh, Rajveer Singh, Yudhveer Singh, Ajayveer Singh and 2-3 other persons by knives. Satyanarayan, Krishan Gopal and Santosh had received grievous injuries in the incident (Downloaded on 21/10/2019 at 09:02:58 PM) (12 of 22) [CRLA-1080/2015] and were being taken to Mahatma Gandhi Hospital, Bhilwara. The ASI proceeded to Mahatma Gandhi Hospital, Bhilwara on receiving this information and found that Satyanarayan had passed away whereas, Krishan Gopal and Santosh were admitted for treatment.
12. Shri Navratan Singh stated in his evidence that he immediately proceeded to the mortuary for preparing the Panchnama Lash. Vinod Kumar Acharya, (brother of the deceased and an Advocate) is a signatory of the Panchnama Lash (Ex.P/34) as an attesting witness. It may be mentioned here that the telephonic information which was received at the Police Station Kachhola was entered in the Rojnamcha Register and was proved by the prosecution as (Ex.P/55). In this Rojnamcha Entry, all that is mentioned is that two males and a woman had received injuries in an assault and had been taken to the hospital. Neither the names of the accused nor the weapons used by them are mentioned in this Rojnamcha entry. Thus, the fact recorded in the Panchnama Lash (Ex.P/34) that the person who gave the information on telephone disclosed the details of the incident including the names of the accused and the weapons used by them, is a total misstatement. On going through the injury report of Krishan Gopal (Ex.P/29), it is apparent that he received superficial blunt weapon injuries in the assault and as such, he definitely would have been in a position to speak. Vinod Kumar Acharya (PW-2), being the brother of Satyanarayan and Krishan Gopal Acharya, stood as an attesting witness to the Panchnama Lash. It can be expected that he must have taken first hand information of the incident from Shri Satyanarayan and as such, it can be inferred that the Panchnama Lash (Ex.P/34) was prepared (Downloaded on 21/10/2019 at 09:02:58 PM) (13 of 22) [CRLA-1080/2015] on the basis of information supplied by Vinod Kumar to the ASI Navratan Singh. It appears that the ASI unknowingly and inadvertmently prepared the Panchanama Lash before recording the Parcha Bayan of the injured Krishan Gopal Acharya. In any event, we do not feel that this trivial flaw in the procedure of investigation can be considered as being grossly fatal to the entire prosecution case and the Parcha Bayan (Ex.P/37), in our opinion, would not be hit by Section 162 Cr.P.C. as the same is a first hand account of the incident as deposed by an injured eye witness.
13. Before dealing with the evidence of the eye-witnesses, we would first like to advert to the prosecution case regarding the recoveries effected by the I.O. at the instance of the accused. The incident took place on 23.06.2012. The accused were arrested on 24.06.2012. The prosecution claims that in this interregnum, the accused appellants took the opportunity, went to their respective houses and concealed the weapons which were recovered later. In this background, it does not stand to reason that the accused would continue to wear the same clothes which they were wearing at the time of the incident and which allegedly got stained by blood during the assault. Thus, the exercise of the recovery of the blood stained clothes of the accused as undertaken by the I.O. Chainaram (PW-1) is not convincing and it appears to be a sheer fabrication. However, the recovery of the weapons effected at the instance of the accused appears to be convincing because it is natural human conduct that an offender would try to conceal weapons used by him at the safest possible place like his own house after committing a crime. The accused concealed the weapons in their respective houses and the same were recovered (Downloaded on 21/10/2019 at 09:02:58 PM) (14 of 22) [CRLA-1080/2015] faithfully after the police custody remand was provided to the I.O. in furtherance of the order passed by the revisional court. Upon a thorough appreciation and evaluation of the evidence of the I.O. Chenaram (PW-1) and the Panch Witness Dinesh Kumar Acharya (PW-10), we are duly satisfied that the recoveries of weapons effected by the I.O. in furtherance of the information provided by the accused under Section 27 of the Indian Evident Act was made in a faithful manner and the evidence led by the prosecution is convincing. Hence, these recoveries was held to be reliable.
14. The prosecution case rests principally on the direct evidence of Krishan Gopal Acharya (PW-3) and Smt. Santosh (PW-6) both injured eye-witnesses. As many as six assailants were named in the Parcha Bayan (Ex.P/37) and in the FIR (Ex.P/40). Shri Charan raised a big issue regarding the identity of the accused Ajayveer Singh urging that his name was not mentioned as such in the Parcha Bayan (Ex.P/37) and instead, the name is mentioned as Ajay Singh. However, we find that this discrepancy is far too trivial and insignificant so as to be given much credence. The name Ajay Singh son of Balveer Singh is clearly mentioned in the Parcha Bayan as one of the assailants and as such, the slight discrepancy in the name Ajay Singh/ Ajayveer Singh is hardly of much relevance as the name of the father is common and correct in both these versions. Thus, the contention of Shri Charan regarding omission of the name of the accused Ajayveer in the FIR / Parcha Bayan is not tenable and does not hold water.
15. Shri Krishan Gopal (PW-3), while deposing on oath, alleged that he and his brother Satyanarayan were sitting inside their (Downloaded on 21/10/2019 at 09:02:58 PM) (15 of 22) [CRLA-1080/2015] shop located near the bye-pass at Kachhola. While he was sitting beside the cash box, Satyanarayan was sitting near the weighing scale. It was 3 O' Clock in the afternoon. At that time, Banveer Singh was standing with a motorcycle on the opposite side of the road across the divider. Rajveer Singh, Ajayveer Singh, Kuldeep @ Lallu Singh, Karanveer Singh, Dharam Singh and Yudhveer Singh came from towards the Mandi Road. All the six assailants trespassed into his shop, dragged Satyanarayan out and threw him down on the ground. Rajveer Singh started assaulting his brother by knife, Ajayveer Singh by a baseball bat and Kuldeep Singh by an iron pipe. Thereafter, the assailants dragged the witness out and he too was beaten on his head and legs by Ajayveer Singh and Kuldeep Singh with their respective weapons. He further alleged that Rajveer Singh gave him a knife blow which landed on his left shoulder. Smt. Santosh wife of Mahendra Khatik, who sells vegetables outside their shop, came to intervene on which, Rajveer Singh gave her a knife blow which landed on her right palm. The witness elaborated that Rajveer Singh gave 12-13 knife blows to Satyanarayan who started bleeding profusely from the resultant wounds. Thereafter, the accused ran away with their weapons. While going away, Rajveer Singh threatened them. The witness, alongwith Satyanarayan and Smt. Santosh were boarded on to a van and were taken to the Kachhola Government Hospital. Considering the grave condition, they were referred to MGH, Bhilwara. Satyanarayan was talking on the way but he went silent just before reaching hospital at Bhilwara. They reached Bhilwara Hospital at about 05.00-05.15 pm. The police officials of the Police Station Kachhola came there between 06.30 to 07.00 pm. and recorded his Parcha Bayan (Ex.P/37). He further alleged that (Downloaded on 21/10/2019 at 09:02:58 PM) (16 of 22) [CRLA-1080/2015] Rajveer Singh had indulged in eve-teasing Mamta, daughter of Satyanarayan. He was reprimanded and chastised and his father was told about his misdeeds. Rajveer Singh became annoyed and had hurled an insinuation that he would eliminate the members of the complainant party one by one. The witness alleged that only three out of all the accused who participated in the incident, were present in the court.
16. In cross-examination, the witness admitted that the name of Kuldeep Singh was not mentioned in his Parcha Bayan (Ex.P/37). He tried to explain that he had divulged the names of all the accused to the ASI but could not say as to why Kuldeep Singh's name was not mentioned in the report. He further admitted that the name of Ajayveer Singh was not mentioned in the Parcha Bayan as it is. He was further confronted with his Parcha Bayan (Ex.P/37) regarding omission of the weapons assigned by him to the three appellants (knife to Rajveer Singh, baseball bat to the accused Ajayveer Singh and iron pipe to Kuldeep Singh). He stated that he had told these facts to the Police Officer but could not explain as to why these details were lacking in his Parcha Bayan (Ex.P/37). He also could not explain the omission in the Parcha Bayan regarding the specific injuries attributed by him to the accused in his sworn testimony. He was also confronted with his police statement (Ex.D/2) regarding these very omissions and contradictions but other than offering a general denial, he could not explain the same.
17. From an overall appreciation of the evidence of this witness, we are duly satisfied that he has made wholesome improvements (Downloaded on 21/10/2019 at 09:02:58 PM) (17 of 22) [CRLA-1080/2015] while naming the accused Kuldeep as an assailant and assigning blunt weapons to him and Ajayveer Singh. Neither the name of Kuldeep was mentioned by the witness nor was any blunt weapon assigned to any of the assailants in the Parcha Bayan (Ex.P/37). These omissions are very significant and would have a material bearing on the fate of the case.
18. Smt. Santosh (PW-6) is an independent injured witness. In her evidence, she alleged that she and her husband were sitting outside the shop of Krishan Gopal and Satyanarayan Acharya with their vegetable cart on 23.06.2012. Both the brothers were talking to each other in their shop. At that time, Rajveer Singh, Kuldeep and Ajayveer Singh came from towards the Mandi, dragged Satyanarayan out of the shop and started assaulting him. Rajveer Singh was armed with a knife whereas Ajayveer Singh was having a baseball bat and Kuldeep Singh was having an iron pipe. All the three accused assaulted Satyanarayan with their respective weapons. When Krishan Gopal tried to intervene and save Satyanarayan, he too was beaten. She somehow mustered courage and tried to intervene on which, Rajveer Singh gave her a knife blow which pierced her right palm. While going away, Rajveer Singh exhorted that they had killed one and on coming out of the jail, the others would also be eliminated. Thereafter, the villagers reached there and they were boarded on the vehicle of Rajesh Laddha and were taken to Kachhola Hospital. Primary treatment was provided but, considering their serious condition, they were referred to Bhilwara Hospital and were taken there in the Bolero vehicle of Raju Mochi. On the way, Satyanarayan's mother called on his mobile phone and talked to him. Before they (Downloaded on 21/10/2019 at 09:02:58 PM) (18 of 22) [CRLA-1080/2015] reached Kotri, Vinod Kumar also talked to Krishan Gopal as well as Satyanarayan. Satyanarayan breathed his last between Kotri and Kodukota. Smt. Santosh was discharged from the hospital and went back to Kachhola. The SHO, collected her blood stained clothes on 24.06.2012. In cross-examination, the witness emphatically denied that the police ever made any investigation from her or that her statement was recorded by the I.O. She further stated that she did not tell the police about the sequence of events which were being narrated by her in the court. She was confronted with her previous statement (Ex.D/3) the portion whereof she refuted and persisted that her police statement was never recorded and that the improvements/ contradictions being elicited were frivolous.
19. It may be stated here that though the witness denied having given any statement to the police, her 161 Cr.P.C. statement which the prosecution filed alongwith the challan was purportedly recorded on 24.06.2012 and in this statement, all the three appellants are named as the assailants. A specific suggestion was given to this witness that Vinod Kumar Acharya, Advocate approached her and tutored her to give the statement which she denied.
20. Upon appreciating the evidence of Santosh (PW-6), we are duly satisfied that a reasonable doubt is created that she might have been prompted by Shri Vinod Kumar (Advocate) PW-2 to give the statement implicating the accused appellants. Our conclusion is fortified by the important circumstance that the accused Kuldeep Singh was neither named in the Parcha Bayan (Downloaded on 21/10/2019 at 09:02:58 PM) (19 of 22) [CRLA-1080/2015] (Ex.P/37) nor in the Panchnama Lash (Ex.P/34) prepared in presence of Vinod Kumar on 23.06.2012 but on the very next day, i.e. 24.06.2012, the prosecution story was twisted and when statements of both the eye-witnesses (Krishan Gopal and Smt. Santosh) were recorded under Section 161 Cr.P.C., their version was moulded to introduce the name of Kuldeep Singh and blunt weapons were attributed to Kuldeep as well as Ajayveer Singh. Therefore, we are of the view that the introduction of the name of Kuldeep Singh as an assailant in the evidence of this witness and the assigning of blunt weapons to the said Kuldeep Singh and Ajayveer Singh is an afterthought which appears to have been created and managed at the instance of Vinod Kumar Acharya (the Advocate brother of the deceased Satyanarayan). Her testimony is thus reliable only to the extent of implication of the accused Rajveer Singh.
21. We have carefully perused the evidence of Dr. Gyanprakash Maheshwari (PW-16) who, being a member of the duly constituted Medical Board at the Mahatma Gandhi Hospital, Bhilwara, carried out postmortem upon the body of Satyanarayan and issued the postmortem report (Ex.P/26). All the 13 external wounds noticed on the deadbody were opined to have been caused by a sharp weapon. Even, Shri Krishan Gopal (PW-3) while deposing on oath, specifically alleged that Rajveer Singh alone inflicted these sharp blows to Satyanarayan by a knife. This aspect of the evidence of Krishan Gopal is at gross variance from the allegations levelled in his Parcha Bayan (Ex.P/37) wherein, an omnibus allegation is levelled that the six assailants namely Shri Rajveer Singh, Ajayveer Singh, Karan Singh, Banveer Singh, Dharamveer Singh (Downloaded on 21/10/2019 at 09:02:58 PM) (20 of 22) [CRLA-1080/2015] and Yudhveer Singh alongwith 2-3 other persons came into their shop, dragged Satyanarayan out and assaulted him by knives, guptis and sticks. This sheer contradiction in the 161 Cr.P.C. statements and the sworn testimony of Krishan Gopal and Smt. Santosh appears to have been instigated by Shri Vinod Kumar Acharya who must have advised these changes after getting a stock of the medical opinion because no blunt weapon injury was observed by the Medical Board which issued the postmortem report (Ex.P/26).
22. That apart, there is a grave discrepancy inter-se between the statement of Krishan Gopal and Santosh regarding the number of assailants. Whilst, Krishan Gopal alleged in his sworn testimony that seven assailants including the appellants herein, entered the shop and participated in the assault, the witness Smt. Santosh did not fortify this allegation and named only three appellants as the assailants. This discrepancy too, goes to the root of the matter.
23. Even if the prosecution allegations regarding motive are considered, manifestly, the same are limited to Rajveer Singh alone.
24. From an overall appreciation and evaluation of the material available on record, we are of the view that it would be safe to rely upon the evidence of eye-witnesses Krishan Gopal and Smt. Santosh only to the extent, they implicated the accused Rajveer Singh. As the name of Kuldeep Singh is not mentioned in the Parcha Bayan on the basis whereof, the FIR came to be registered and since, the allegations set out in the FIR regarding (Downloaded on 21/10/2019 at 09:02:58 PM) (21 of 22) [CRLA-1080/2015] indiscriminate assault made on Satyanarayan by knives, guptis and sticks is unsupported and rather contradicted by the medical evidence which does not indicate presence of even a single blunt weapon injury on the deadbody, we are not in conformity with the findings recorded by the trial court in the impugned Judgment while convicting the appellants Kuldeep Singh and Ajayveer Singh. However, the findings of guilt recorded by the learned trial court against the accused Rajveer Singh are based on a proper and thorough appreciation of evidence available on record and are supported by the medical evidence as well. Thus, his appeal lacks merit. However, the appeal filed on behalf of the appellants Ajayveer Singh and Kuldeep Singh @ Lalya deserves to succeed.
25. In this background, while affirming the impugned Judgment dated 08.10.2015 passed by the learned Additional Sessions Judge No.2, Bhilwara in Sessions Case No.01/2012 on the finding of conviction of the appellant No.1 Rajveer Singh @ Raju, we hereby quash and set the same aside qua the appellants Ajayveer Singh and Kuldeep Singh @ Lalya and acquit them of all the charges by giving them the benefit of doubt. The appellants Ajayveer Singh S/o Vikram Singh and Kuldeep Singh @ Lalya S/o Shailander Singh are in custody. They shall be released from prison forthwith if not wanted in any other case.
26. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellants Ajayveer Singh and Kuldeep Singh @ Lalya are directed to furnish a personal bond in the sum of Rs.15,000/- each and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the (Downloaded on 21/10/2019 at 09:02:58 PM) (22 of 22) [CRLA-1080/2015] effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.
27. The appeal is partly allowed in these terms.
28. Record be returned to the trial court.
(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J
52-Tikam/-
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