Bhojraj Singh v. State of Rajasthan — 1988 DIGILAW 639 (RAJ)

JASRAJ CHOPRA, J.—This appeal has been filed against the Judgment of the learned Addl. Sessions Judge, Barmer dated 28.4.1988 whereby the learned Additional Sessions Judge has held the accused-appellant Bhojrajsingh guilty of the offences under Ss. 304 Part II, I.P.C. and s. 447 I.P.C. and has sentenced him to 10 years rigorous imprisonment and to pay a fine of Rs. 10,000/- and in default to undergo 2 years rigorous imprisonment on the first count and to one months rigorous imprisonment together with a fine of Rs. 1000/- and in default to undergo 15 days rigorous imprisonment on the second count. It was further ordered that in case, the fine is recovered, its 75% of the amount will be given to the wife and children of deceased Vasudeo. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are: that PW 18 Chananmal, who is the real maternal uncle of deceased Vasudeo lodged a written report to S.H.O. Police Station, Girab on 17 8 1987, which has been marked Ex. p. 21 stating therein that his nephew (sisters son) Vasudeo was sent by him to his field in village Bandhra for supervision He was assisted by PW. 8 Sahabdan Singh, a child aged about 10 years. It is alleged that Sahabdansingh came and informed him that two persons came to the field and they inflicted injuries to Vasudeo with an axe and lathi, by which, Vasudeo fell down and became unconscious. Thereafter, the accused-persons ran away from the field. It is further alleged that Sahabdan Singh further informed him that he could not identify these persons. On this, Chananmal accompanied by Kukamsingh, Chamar Singh, Jabarsingh, Chaturbhuj and Padamchand went to the field and found Vasudeo lying injured and unconscious. They also saw the foot prints of two persons and on scrutiny, it was found that foot-prints of two persons were going towards village Kundal. Thereafter, they put Vasudeo on a Charpai and brought him to village Jandhra. Later, they brought him to village Girab in a bus. According to Chananram, there were three big wounds on the head of Vasudeo inflicted by axe and lathies and some other injuries were also present on the person of Vasudeo. On this report, a case under s. 307 I.P.C. was registered. The formal FIR was drawn. The site was inspected. Later, they brought him to village Girab in a bus. According to Chananram, there were three big wounds on the head of Vasudeo inflicted by axe and lathies and some other injuries were also present on the person of Vasudeo. On this report, a case under s. 307 I.P.C. was registered. The formal FIR was drawn. The site was inspected. Five foot prints were detacted and protected when they were seen with the help of foot-print experts. Accused Bhojrajsingh was arrested and a lathi was recovered from him but it was not found to be blood stained. Vasudeo was sent for medical examination, vide memo Ex. P. 13, which shows that he has received 6 injuries on his person. Vasudeo died on 18.8.1987 at about 9.15 A.M. and so, his postmortem examination was got conducted. His postmortem examination report Ex.P. 20 shows that Vasudeo had only one leacrated wound over his scalp on the left side and as per the opinion of the Doctor, the cause of death was head injury and intracranial bleedings. The S.H.O. prepared the site plan and Panchnama Lash and found three injuries on the head and one injury on the left temperal region. The Inquest memo was prepared and it was found that three injuries were existing on the head and one was existing on the left temporal region. The moulds of the foot-prints were not taken and they were not sent for any experts opinion. The lathi recovered was not found blood stained. The accused Bhojrajsingh who was arrested was got identified in an identification parade by witness Sahabdansingh vide Identification memo Ex. P. 18, which has been proved by the concerned Judicial Magistrate. 3. After usual investigation, the case against the accused-appellant Bhojrajsingh was challaned in the court of learned Judicial Magistrate, Banner, from where, it was committed to the court of Additional Sessions Judge, Barmer for trial. During investigation, it. was found that the occurrence has been witnessed not only by P.W. 8 Sahabdansingh but also by P.W. 9 Bhanwarsingh, P.W. 10 Nimosingh, P.W. 11 Gopalsingh and P.W. 13 Bheemsmgh, who all were examined during trial.. P.W. 12 Gopalsingh, the Investigating Officer has also been examined and he has stated that he went for the arrest of the accused with the help of foot-print expert Pagi Sajjan Khan. P.W. 12 Gopalsingh, the Investigating Officer has also been examined and he has stated that he went for the arrest of the accused with the help of foot-print expert Pagi Sajjan Khan. The statement of the accused was recorded under S. 313 Cr.P.C. He has stated that he was shown to the witnesses when he was arrested. He did not produce any defence and, therefore, the learned lower court after hearing both the parties decided the case as aforesaid. Hence this appeal. 4. I have heard Mr. Doongarsingh, the learned counsel for the accused-appellant and Mrs. Chandralekha, the learned Public Prosecutor for the State. I have carefully gone through the record of the case. 5. Mr. Doongarsingh, the learned counsel appearing for the accused-appellant has submitted that" this case has falsely been lodged against the accused-appellant. Fictitious witnesses have been created. False record has been prepared and the entire story of the prosecution has been changed so as to bring it in accordance with the medical evidence. As per him, nobody has seen the occurrence. He has further submitted that according to the prosecution, an attempt has been made to trace the accused on the basis of the foot prints with the help of foot-print expert Pagi Sajjan Khan but Pagi Sajjan Khan has not been examined and no moulds of the foot prints have been taken. The site inspection memo Ex.P. 2 shows that three foot prints of three persons were existing at the spot. 6. Mr. Doongarsingh has submitted that initially, the case of the prosecution as set up in the F.I.R. on the information given by Sahabdansingh was that two persons one armed with an axe and the other armed with a lathi came there and inflicted injuries to Vasudeo, by which, he fell down and thereafter, the accused-persons ran away from the place of the occurrence. It is alleged that Sahabdansingh has seen the occurrence and thereafter, he went to village and informed Chananmal about this occurrence. In this F.I.R., Chananmal has not disclosed the names of other eye witnesses, who it is alleged have seen the occurrence and have talked with Sahabdansingh. It has been mentioned in the F.I.R. that Sahabdansingh was not able to identify the persons who were two in number one armed with an axe and the other armed with a lathi and they have inflicted three injuries on his head. It has been mentioned in the F.I.R. that Sahabdansingh was not able to identify the persons who were two in number one armed with an axe and the other armed with a lathi and they have inflicted three injuries on his head. But now, it is alleged that only one person was there who was armed with a lathi and he has inflicted three injuries on the head of Vasudeo. The alleged eye witnesses of the occurrence i.e. P.W. 9 Bhanwarsingh, P.W. 10 Nimosingh and P.W. 11 Gopalsingh have stated that they went near the place of the occurrence and. have a talk with Sahabdansingh and told him that Bhojrajsingh has inflicted injuries to Vasudeo. If that was so, the names of these witnesses could have been disclosed by Sahabdansingh to Chananram and he would have further disclosed this fact in the F.I.R. that it was accused Bhojrajsingh Who has inflicted these injuries to Vasudeo. In these circumstances, Sahabdansingh would not have informed Chananram that two persons have inflicted injuries to Vasudeo and they were armed with lathi and axe. If such number of persons were there, they would have caught hold of accused Bhojrajsingh. If accused Bhojrajsingh was actually seen by these witnesses and has been identified, there was no reason for the prosecution to protect the foot prints and to go in search of the accused on the basis of the foot prints with the help of foot prints expert Pagi Sajjan Khan. This clearly shows that accused Bhojrajsingh was not seen by anybody, otherwise there was no necessity to track the foot prints to arrest the accused. They would have straight way gone to village Gujangarh because they knew that it was accused Bhojraj Singh who has committed this crime. 7. Miss Sumitra Sankhla, the learned Public Prosecutor appearing for the State has, however, submitted that in this case not only the accused has been identified by the eye witnesses and has been named but he was put for identification in the Jail to witness Sahabdansingh and he has identified him and, therefore, this supports the testimony of Sahabdansingh that this was accused Bhojrajsingh who has taken part in this incident. 8. I have considered the rival submission made at the bar and I feel inclined to agree with the submissions made by Mr. Doongarsingh, the learned counsel appearing for the accused appellant. 9. 8. I have considered the rival submission made at the bar and I feel inclined to agree with the submissions made by Mr. Doongarsingh, the learned counsel appearing for the accused appellant. 9. In this case, it appears that no body has seen the incident. The report of the incident has been lodged by P.W. 18 Chananmal on the basis of the information supplied to him by P.W. 8 Sahabdansingh. In this report, he got it recorded that at the time of the incident, two persons came in the field and they inflicted injuries to Vesudeo with axe and lathi. So much so, Vasudeo became unconscious on account of the injuries received by him. When Sahabdan Singh found that Vasudeo has become unconscious, he went to village and informed Chananmal that Vasudeo has been severely beaten. Thereafter, Chananmal accompanied by other persons went to the field and found that three injuries were existing on his head inflicted by lathi and axe. P.W. 17 Dr. Ramakishan who has conducted the postmortem examination of accused Vasudeo has found only one injury on his head, which was a lacerated wound of the size of 6 cm x 2 cm. He has categorically stated that on other injury was found on his person. On opening the skull, he found that there was fracture on the left side of the parietal bone which was found fractured. There was clotting of the blood, which clearly shows that Vasudeo received only one injury on his head. The injured Vasudeo was sent for medical examination vide memo Ex.2. 13 which shows that he received 6 injuries on his person. Later, after the death of injured Vasudeo, when Panchnama Lash and Inquest memo were prepared, the police found four injuries on his person. It appears that this evidence has been created to involve number of persons for inflicting number of injuries and all these documents prepared by the police can safely be hold to be false documents when they are compared with the postmortem report as well as the medical evidence. 10. P.W. 8 Sahabdan Singh himself had stated that on the day of the occurrence, when certain news entered into the field of Chananram, he and Vasudeo went to drive out the cows from the field and to take them to the cattle pond. 10. P.W. 8 Sahabdan Singh himself had stated that on the day of the occurrence, when certain news entered into the field of Chananram, he and Vasudeo went to drive out the cows from the field and to take them to the cattle pond. Bhojraj Singh asked them not to do so and when Vasudeo refused, it is alleged by Sahabdan Singh that accused Bhojraj Singh inflicted three lathi-blows on his head by which he fell down. Thereafter, P.W. 9 Bhanwar Singh, P.W. 10 Nimb Singh and P.W. 12 Gopal Singh came there and on seeing them, the accused ran away from the place of the occurrence. Now, he does not state that they were all present but he has stated that accused Bhojraj Singh was the only person who was present. He has stated that he has identified the accused before the Magistrate. When cross-examined, he has stated that there was only one person present in the field and it was he (accused Bhojraj Singh) alone, who inflicted three injuries on the head of Vasudeo. He has also stated that Bhanwar Singh, Nimb Singh and Gopal Singh told that Bhojraj Singh inflicted these injuries. He was confronted with his earlier statement- that he has informed Chananmal that two persons armed with axe and lathi came there and inflicted injuries to Vasudeo but he has stated that he did not state any such thing to Chananmal. He was also examined by the police but in that statement too, he did not name the accused. He has stated as under .................................................From the above statement, it is clear that neither Gopal Singh nor Nimb Singh identified the accused nor they have seen the occurrence. They came to the place of the occurrence after it was over and, therefore, the attempt of the alleged eye witnesses P.W. 9 Bhanwar Singh, PW 10 Nimb Singh and P.W. 12 Gopal Singh to prove that they have seen the occurrence and have informed the name of the accused to Sahabdan Singh appears to be on attempt to indulge in falsehood. If Sahabdan Singh has seen only one person armed with a lathi and he could not identify him, he would have disclosed Chananmal that only one man came there and he was armed with a lathi. He could not have informed him that two persons came there armed with lathi and axe. If Sahabdan Singh has seen only one person armed with a lathi and he could not identify him, he would have disclosed Chananmal that only one man came there and he was armed with a lathi. He could not have informed him that two persons came there armed with lathi and axe. Now Chananmal has stated that he was informed about the occurrence by Savdhan Singh which actually might be a wrong name for Sahabdansingh because in the report, he has stated that he was informed about the occurrence by Sahabdan Singh. According to him, Sahabdansingh has disclosed him that he has identified the accused. If that was so, he must have named that man in his report which was lodged by him. He is up-Sarpanch of the village Panchayat. When his nephew has been seriously injured, he would not have mentioned in the F.I.R. that Sahabdansingh has informed him that two persons armed with lathi and axe came there and inflicted injuries to Vasudeo and he could not identify them. He was confronted with portion J to K of Ex. P. 21 wherein he has stated that Sahabdan Singh has informed him that two persons armed with lathi and axe came there and inflicted injuries to Vasudeo and he could not identify them, he has stated that he got this thing written in Ex. P. 21 and that was correctly written therein, which clearly means that till he lodged the F.I.R., he did not know who were the assailants and this is what he has admitted in his statement in cross-examination. This F.I.R. was lodged by Chananmal after he visited the field. If P.W. 9 Bhanwar Singh, P.W. 10 Nimbsingh and P.W. 12 Gopalsingh have actually seen the occurrence, they would certainly have met Chananmal in the field to tell him that they have witnessed the beating of Vasudeo by Bhojrajsingh armed with a lathi. Even Sahabdansingh if he had met these eye witnesses before he went to the village, he must have disclosed the names of these eye witnesses to Chananmal and must have further told him that the assailants of Vasudeo was Bhojraj Singh. The absence of all these facts in the F.I.R. clearly goes to prove that none of them has seen the occurrence and they are all planted witnesses. The absence of all these facts in the F.I.R. clearly goes to prove that none of them has seen the occurrence and they are all planted witnesses. Such discrepancies can never crop up in the statements of the eye witnesses, who have seen the occurrence. More-over, if the accused was identified and his name was disclosed to Sahabdansingh by the other eye witnesses and to Chananmal by Sahabdansingh where was the necessity to protect the foot prints and to secure the help of a Pagi to arrest the accused. If the occurrence was witnessed by so many persons, neither there could have been as such of differences about number of injuries inflicted to Vasudeo nor the eye witnesses could have allowed Bhojrajsingh to run away from the spot. If accused was known to Sahabdansingh and was named by him, where was the necessity for the Investigating Officer to put Bhojrajsingh accused for identification of Sahabdansingh. It is, therefore, clear that P.W. 8 Sahabdansingh, P.W. 9 Bhanwarsingh, P.W. 10 Nimbsingh and P.W. 12 Gopalsingh have not seen the occurrence. 11. P.W. 13 Bheemsingh has categorically stated that after Vasudeo was injured, he went there and asked him as to what has happened to him upon which he told him that cow hurd men have beaten him but he did not see anybody there. It is true that P.W. 9 Bhanwarsingh, P.W. 10 Nimbsingh and P.W. 12 Gopalsingh have stated that they have seen the assailants. According to these witnesses, accused Bhojrajsingh inflicted three injuries on the head of Vasudeo. This also shows that they have not seen the occurrence because only one lacerated wound injury was found existing on his head by P.W. 17 Dr. Ramkishan. They have stated that they told Sahabdansingh to inform the villagers that Bhojrajsingh has given beating to Vasudeo. If that was so, there was no reason for Sahabdansingh to withhold the name of Bhojrajsingh from Chananmal. I am, therefore, definitely of the view that these persons have not seen the occurrence. Simply because Sahabdansingh has identified Bhojrajsingh In the identification parade, it does not mean that he has seen Bhojrajsingh inflicting injuries to Vasudeo. If he had seen him and identified him, he would never have informed Chananmal that there were two persons armed with lathi and axe and they have inflicted number of injuries to him with lathi and axe. Simply because Sahabdansingh has identified Bhojrajsingh In the identification parade, it does not mean that he has seen Bhojrajsingh inflicting injuries to Vasudeo. If he had seen him and identified him, he would never have informed Chananmal that there were two persons armed with lathi and axe and they have inflicted number of injuries to him with lathi and axe. I, therefore, hold that identification of the accused is not established on the strength of the testimony of these eye witnesses and on the basis of other material on record, accused-appellant Bhojrajsingh could not have been held guilty of the offence under Ss.304 Part II and 447 I.P.C. 12. I, therefore accept this appeal, set aside the conviction and sentence of the accused-appellant Bhojrajsingh recorded under ss. 304 Part II and 447 IPC and acquit him of both these offences. Accused Bhojrajsingh is in custody. He be set at liberty forthwith, if he is not required in any other case. 13. Let the record of the case be sent to the learned lower court forthwith.