Chhotu Ram v. State of Rajasthan — 1997 DIGILAW 1185 (RAJ)

Honble GUPTA, J.–Through this appeal appellants Chhotu Ram and Dhanna Ram have assailed the judgment passed by Additional Sessions Judge, Ratangarh in Sessions Case No. 57/94 delivered on 15.7.95 whereby they have been convicted under Section 302 read with Sec. 34 IPC and sentenced to imprisonment for life and a fine of Rs. 100/-. (2). The case relates to the murder of Mangilal committed on 6.6.93 in his field situate in the outskirts of village Chapar. The F.I.R. Ex. P. 1 lodged by Sohanlal (P.W. 1) indicated that Mangilal lived in `Dhani along with his family and that Chhotu Ram brother-in-law of Mangilal and Dhanna Ram r/o Kodasar were seen sitting in the `Dhani in the evening and after some time there was outcry which attracted the attention of Sohanlal and his brothers Dalu and Surja. When they went to the `Dhani of Mangilal they found Mangilal in injured condition and accused Chhotu Ram and Dhanna Ram having lathis in their hands running from that place. Mangilal told them that Chhotu Ram and Dhanna Ram had given beatings to him by lathis. Mangilal was take to the hospital but he was declared dead by the medical officer. On this report a case under Section 302 IPC was registered. After the completion of the investigation, the police submitted challan against both the accused persons. (3). To a charge under Section 302 read with Section 34 IPC both the accused persons pleaded not guilty. The prosecution examined 10 witnesses. Out of them; P.W. 1 Sohan Lal, P.W. 2 Surja Ram and P.W. 3 Dalu Ram are the persons who de- pose to have gone to the place of occurrence on hearing the outcries of Mangilal and there the deceased told them that he was given beatings by his brothers-in-law Chhotu Ram and Dhanna. P.W. 4 Dr. D.D. Channa had held autopsy on the body of Mangilal and had prepared the post- mortem report Ex. P-15. P.W. 5 Abdul Majid and P.W. 6 Surendra Singh are the police officials who kept the `Malkhana articles in safe custody or had taken them to the Forensic Science Laboratory, Jaipur. P.W. 7 Mst. Meera is the wife of the deceased and P.W. 8 Mst. Maina is the daughter of the deceased. P-15. P.W. 5 Abdul Majid and P.W. 6 Surendra Singh are the police officials who kept the `Malkhana articles in safe custody or had taken them to the Forensic Science Laboratory, Jaipur. P.W. 7 Mst. Meera is the wife of the deceased and P.W. 8 Mst. Maina is the daughter of the deceased. Both of them have been declared hostile as they have resiled from their earlier version that they had seen the accused persons causing injuries to Mangilal. P.W. 9 Mohan was associated as `motbir by the police during investiga- tion. P.W. 10 Ganesh Nath is the Investigating Officer. Accused in their statement under Section 313 Cr.P.C. denied accusation. They did not examine any witness in defence. The learned Sessions Judge held that the death of Mangilal was homicidal. He further held that on the basis of dying declaration of Mangilal and the recovery of blood stained lathi at the instance of the accused persons, charge of murder of Mangilal against both the accused persons stand proved. He, therefore, convicted and sentenced them as above. (4). Mr. Choudhary contended that the trial court has erred in relying the oral dying declaration. He pointed out that there are discrepancies in the statements of the three witnesses on the dying declaration which according to him render the evidence of dying declaration doubtful. He relied on the case of Darshan Devi vs. State of Punjab (1). He also pointed out discrepancies appearing in the evidence of recovery of lathis at the instance of the accused and submitted that the Investigating Officer has introduced this evidence falsely in order to make out a charge against the accused. (5). The learned Public Prosecutor on the other hand supported the judgment of the trial court. His contention was that Maina and Meera have suppressed the truth obviously to help the accused persons who are none-else than the brothers of Meera. He submitted that there could not be any reason for Sohan Lal to have falsely implicated the accused persons. (6). We have given the matter our thoughtful consideration. (7). The items of evidence on which the prosecution had relied on are : (a) dying declaration; (b) the direct evidence; and (c) recovery of blood stained lathis at the instance of the accused. (8). (6). We have given the matter our thoughtful consideration. (7). The items of evidence on which the prosecution had relied on are : (a) dying declaration; (b) the direct evidence; and (c) recovery of blood stained lathis at the instance of the accused. (8). The dying declaration was sought to be proved by the statements of PW1 Sohan Ram PW 2, Surja Ram and PW 3 Dalu Ram. PW 1 Sohan Ram deposes that having heard the outcries of Mangilal, he alongwith his brothers Dalu Ram and Surja Ram went to the `Dhani of the deceased, where on his asking the deceased told that his brothers-in-law Chhotu Ram and Dhanna Ram had given beatings to him. PW 2 Surja Ram deposes that after they reached the `Dhani of Mangilal, they asked Mangilal who told them that Chhotu and Dhanna had given beatings to him by lathis and thereafter they made him to drink water. PW 3 Dalu Ram deposes that when they reached the `Dhani of Mangilal, Mangilal told him that his brother-in-law Chhotu and Dhanna had given beatings to him. (9). The contention of Mr. Choudhary was that the trial Court has erred in be- lieving the oral dying declaration. He pointed out the discrepancies appearing in the statements of the three witnesses and relying on the case Darshana Devi vs. State of Punjab (supra) urged that the dying declaration could not be made basis of conviction. (10). In the case of Darshana Devi (supra) their Lordships observed that though an oral dying declaration can form basis of conviction but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. It was further held that the reproduction of the exact words of the oral dying declaration in such a case is very important and that difference in the exact words of the dying declaration detracts materially from the value of the oral dying declaration. (11). In that case the difference in the words used by the two witnesses, through whom the dying declaration sought to be proved, was to this effect. One witness had stated that the deceased had told that the accused had sprinkled kerosene oil on him when he was lying asleep and burnt him whereas the other witness had stated that the deceased had told that he had been burnt by the accu- sed by sprinkling kerosene oil. One witness had stated that the deceased had told that the accused had sprinkled kerosene oil on him when he was lying asleep and burnt him whereas the other witness had stated that the deceased had told that he had been burnt by the accu- sed by sprinkling kerosene oil. Noting that there was variance in the statements of the two witnesses with regard to the exact words allegedly used by the deceased, the dying declaration was held to be unbelievable. In the instant case also, there is obvious variance in the statements of the three witnesses. According to Sohan Ram (PW 1) the deceased had told that his brothers-in-law Chhotu Ram and Dhanna Ram had given beatings and they had run away, whereas the statement of Surja Ram (PW 2) indicates that the deceased had even told that he was beaten by lathis. This witness does not say that the deceased had identified Chhotu and Dhanna as his brother-in-laws which fact is disclosed by Sohan Ram (PW 1) in his statement. According to Dalu Ram (PW 3) the accused had only told that his brothers-in-law Chhotu and Dhanna had given beatings to him. The witness has categorically stated that the deceased had not disclosed as to by which weapon he was given beatings. There are, thus, discrepancies in the statements of the three witnesses with regard to the exact words allegedly used by the deceased. In such circumstances, following the dictum of the case of Darshana Devi (supra) it is not possible to place reliance on the oral dying declaration. (12). There is also no evidence on record to believe that Mangilal could be in a position to give dying declaration after sustaining 23 injuries on his person. It is significant to point out that he had suffered 5 lacerated wounds and his both the parietal bones, radius and ulna of the right arm and both the bones of the right leg, humerous bone of the left arm and the fingers had fractured. It could not be possible for the deceased having sustained such injuries to utter some words. It was the duty of the prosecution to have proved that the deceased could be in a position to speak after the occurrence. The prosecution did not put any question to Dr. It could not be possible for the deceased having sustained such injuries to utter some words. It was the duty of the prosecution to have proved that the deceased could be in a position to speak after the occurrence. The prosecution did not put any question to Dr. Chawla when he was in the witness box as to whether the deceased could be in a position to speak having sustained such injuries. Dr. Chawla states that the condition of the deceased was serious and he was gasping when he was taken to the hospital. He does not say that the deceased uttered any word. Keeping in view the number of lacerated wounds and the grievous hurts suffered by Mangilal, it can- not be accepted that he might have given dying declaration to the three witnesses. (13). The prosecution tired to prove one more oral dying declaration through the statement of Mohan (PW 9). He deposes that at the police station the deceased had told the SHO that he was given beatings by his brothers-in-law Chhotu and Dhaniya. Ganeshnath (PW 10), SHO, however does not say about this dying decla- ration. It is, obvious that Mohan has given false statement. (14). Coming to the direct evidence the prosecution examined PW 7 Smt. Meera and PW 8 Smt. Maina to give the eye-witnesses account of the occurrence. Both the witnesses have however turned hostile and they do not state that they had seen the accused persons causing injuries to the deceased. Both these witnesses even deny the presence of the accused persons at Chhapar on that day. It cannot be believed that Meera and Maina wife and daughter of the deceased would help the culprits who had killed the bread winner of the family, even when the accused are brothers of Meera and maternal uncles of Maina. Atleast, Maina could not forgive the murderers of her father. (15). Meera (PW 7) states that she had seen her husband, Dalu and Sohanlal taking liquor and thereafter she had gone to collect the she-goats and when she returned, she saw her husband in injured condition and on her asking Dalu told that Sohan and Mangilal had quarrelled after taking liquor and therefore, he was being taken to the hospital. (15). Meera (PW 7) states that she had seen her husband, Dalu and Sohanlal taking liquor and thereafter she had gone to collect the she-goats and when she returned, she saw her husband in injured condition and on her asking Dalu told that Sohan and Mangilal had quarrelled after taking liquor and therefore, he was being taken to the hospital. It is, thus, obvious that Meera herself had not seen Dalu and Sohan quarrelling with the deceased, and in her presence the injuries were not caused to him, therefore, on the ground that Meera did not lodge report against Dalu and Sohanlal, it cannot be inferred that Sohan and Dalu had not caused injuries to the deceased and the accused had caused those injuries. (16). There could not be any motive for the accused persons to have caused the death of Mangilal who was none else than their brother-in-law (`Bahnoi). There is no evidence on record worth the name to say that the relations of the deceased and the two accused persons were strained. The only fact which has appeared on record is that the marriage of Maina was performed at Sujangarh in the house of the accused persons. However, Meera (PW7) emphatically denies that her husband was against that marriage. There is no evidence on record on which it can be found that the deceased had not attended the marriage of Maina at Sujangarh. Moreover, it has come in the statement of meera that she had brought Maina 15 days before the date of occurrence from village Jogaliya where the in-laws of Maina resided. Maina also deposes that she had gone to Chhapar 15 days before the occurrence. There is no evidence on record to this effect that the deceased had objected to the going of Maina to his house. As such there could not be any occasion for the two accused to be on inimical terms with the deceased. (17). On this fact that the two accused persons had gone to Chhapar on that evening, there is only the statement of Sohan Ram (PW 1) who says that he and Mangilal had gone from village Chhapar to the Dhani of Mangilal and there they had smoked and at that time the accused persons were also sitting there. (17). On this fact that the two accused persons had gone to Chhapar on that evening, there is only the statement of Sohan Ram (PW 1) who says that he and Mangilal had gone from village Chhapar to the Dhani of Mangilal and there they had smoked and at that time the accused persons were also sitting there. In his cross-examination, Sohan Ram clearly says that during the period he stayed at the Dhani for 10 minutes, he had no talk with the accused persons. It cannot be believed that there would be no talk with the persons who had gone to the Dhani from different village and that too when they had smoked in the company of Sohan Ram (PW 1) for 10 minutes. This very fact indicates that whatever Sohanram states in this regard is not correct. It seems that when Mangilal sustained injuries in the scuffle, which the witnesses had with him while taking liquor, Sohan and his two brothers thought that they should implicate the accused persons in this case, obviously because they knew that the marriage of Maina was performed by her maternal uncles (accused). (18). The last item of evidence is the recovery of lathis at the instance of the accused. PW 10 Ganeshnath, SHO, deposes that he arrested the accused persons vide arrest memos Ex. P/8 and P/9 and thereafter accused Chhotu Ram gave information Ex. P/22 and Dhanna gave information Ex. P/23 and in consequence of the information given by them, two lathis were recovered from the fields of Jugal Kishore and Sanwara Mali. He proves the recovery memos Ex. P/10 and P/11. The accused have denied the recovery of lathis at their instance. The `Motbirs of the recovery memos Ex. P/10 & P/11 are Sohan Ram (PW 1) and Mohanlal (PW 9). According to Mohan (PW 9) lathis were recovered at about 10 or 10.30 a.m. whereas the recovery memos indicate that the recovery was made at 5.45 p.m. and 6.15 p.m. Similarly, Mohan (PW 9) deposes that both the lathis were lying at one and the same place in the field whereas according to the Investigating Officer, two lathis were recovered from two different fields of different persons. Mohan Ram further states that the lathis were recovered on the same day on which the site inspection memo was prepared. The site inspection memo Ex. Mohan Ram further states that the lathis were recovered on the same day on which the site inspection memo was prepared. The site inspection memo Ex. P/2 was prepared on 7.6.93 as per the date recorded on the document. If Mohans statement is accepted, it means that lathis were also recovered on 7th of June, 1993 whereas the recovery memos mention the date 13.6.93 as the date of recovery. In view of the statement of Mohan (PW 9), it is difficult to believe the recovery of lathis at the instance of the accused persons. (19). It is also significant to point out that according to Sohan Ram (PW 1) (first informant) also the lathis were recovered on the very day the accused were arrested. The accused were arrested on 9.6.93 as per the documents Ex. P/8 & P/9. It is obvious that there is great variance with regard to the date on which the recovery was made in the documentary evidence and the oral evidence produced. In our opinion, in the circumstances,, the trial Court has erred in placing reliance on the recovery of the lathis at the instance of the accused. (20). As already stated, there could not be any motive for the accused to have caused the death of their brother-in-law. It is true that Meera, widow of the deceased did not go to the hospital alongwith Mangilal, but by that it cannot be inferred that she did not go because her brothers had caused the death of the decea- sed. It has come in the statement of Meera that her husband used to live in the company of Sohan Ram and Dalu Ram and they were taking liquor together for the last 4 days. Therefore, there were reasons to believe for Smt. Meera to trust Sohan when he informed her that Mangilal had sustained injuries in the quarrel while taking liquor. Meera could not anticipate that her neighbours would falsely impli- cate her brothers in a case. She might not have gone to the hospital under the bonafide belief that her neighbours who used to drink with her husband would take care of her husband. It may also be the reason for her not going that she could not leave her young daughter alone at the `Dhani. (21). She might not have gone to the hospital under the bonafide belief that her neighbours who used to drink with her husband would take care of her husband. It may also be the reason for her not going that she could not leave her young daughter alone at the `Dhani. (21). As a result of the foregoing discussions, we are constrained to remark that the trial Court has committed grave error in convicting the accused persons in this case. The conviction is liable to be set aside. (22). Consequently, we accept appeal set aside the judgment of the trial Court and acquit the appellants of the charges under Sec. 302 read with Sec. 34 IPC. They are in custody. They shall be released forthwith if not required in any other case.