Hari Ram v. State of Rajasthan — 1997 DIGILAW 698 (RAJ)

Honble SINGH, J.–Heard the learned counsel for the appellants and the learned Public Prosecutor. (2). This appeal is directed against the judgment dated 12th April, 1984 passed by the Additional Sessions Judge No.2, Hanumangarh in Sessions Case No. 2/83 State vs. Hari Ram and Others. By the aforesaid judgment accused Hari Ram was convicted under Section 302 of the Indian Penal Code and was sentenced to imprisonment for life and fine of Rs. 500/- and to undergo further rigorous imprisonment for three months for default in payment of fine. Accused Sohan Lal and Bagdawat were convicted under Section 323 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 323 of the Indian Penal Code. (3). The facts of the case may be briefly summarised as below: On 19th September, 1982 at 5.00 P.M. accused Hari Ram gave an oral information about the alleged offences. The information given by him in the Police Station was to the effect that Smt. Para W/o Munshi Ram owned land measuring three squares. She had given her land to Ram Pratap on the basis of an agreement. Ram Pratap is the brother of the accused. Ram Pratap and the accused were cultivating the land of Smt. Para for last three years. Smt. Para formerly lived in Nihalpura but about 5 days before the date on which oral information about the offences was given by Hari Ram, she went to Village Miyawala. On 17th September, 1982 Rupa Ram who is the brother of Smt. Para went to village Nihalpura and met the accused Hari Ram. At that time Bagdawat and Sohan Lal were sitting with Hari Ram as they used to live with him. Rupa Ram complained to Hari Ram that the later had taken the land from Smt. Para by mis-leading her and that he would take back the land and would not allow Hari Ram to cultivate the land. This lead to heated exchange of words and after sometime Rupa Ram got up and went away. Rupa Ram complained to Hari Ram that the later had taken the land from Smt. Para by mis-leading her and that he would take back the land and would not allow Hari Ram to cultivate the land. This lead to heated exchange of words and after sometime Rupa Ram got up and went away. In the First Information Report Ex.P-23 given by Hari Ram it was further stated that Hari Ram, Bagdawat and Sohan Lal pondered over the matter and they thought that Rupa Ram might create difficulty for them, therefore, all three of them ran after Rupa Ram with lathis in their hands.They caught Rupa Ram at ``Pule which was near the house of Sahab- ram Meghwal and Hari Ram inflicted a lathi blow on the head of Rupa Ram, Bagdawat and Sohanlal inflicted lathi blows on his legs. Injuries were also caused on his chest and after that Rupa Ram was forcibly taken to the house of Hari Ram where he was confined in a `Kotha after giving him a beating. Sohan, Jail Singh, Sahab Ram, Gurdayal Singh and some other persons had witnessed the incident but they did not intervene. It was also stated in the First Information Report Ex.P-23 that Rupa Ram remained in agony for sometime and early in the morning he expired. His dead body remained lying in the house of the accused Hari Ram. They desired to dispose of the dead body but it could not be carried out. In the morning of 19th September, 1982 Sohan Lal and Bagdawat went away from the house of Hari Ram and thereafter Hari Ram alone remained with the dead body. In the First Information Report Ex.P-23 it was also stated by Hari Ram that when the dead body started decaying the thought that it was not possible to conceal the dead body any more, therefore, he reported the matter to the Police. (4). On the basis of the First Information Report Ex.P-23 given by the accused Hari Ram the Police registered a case under Section 302 of the Indian Penal Code and commenced investigation. During investigation the dead body of Rupa Ram was recovered from the house alleged to have been in the possession of the accused Hari Ram. Post-Mortem examination of the dead body was conducted. It was found that he died on account of several injuries found on the body. During investigation the dead body of Rupa Ram was recovered from the house alleged to have been in the possession of the accused Hari Ram. Post-Mortem examination of the dead body was conducted. It was found that he died on account of several injuries found on the body. After com- pleting investigation the Police submitted a charge-sheet in the Court of learned Munsif and Judicial Magistrate, Suratgarh who committed the case to the Court of learned Additional District and Sessions Judge No.2 Hanumangarh (camped at Suratgarh). (5). The learned Additional Sessions Judge No.2, Hanumangarh framed char- ge under Section 302 read with Section 34 of the Indian Penal Code against Hari Ram, Sohan Lal and Bagdawat. All the three accused persons pleaded not guilty to the charge. The prosecution examined Jail Singh (PW-1), Sahab Ram (PW-2), Imarta (PW-3), Gurdayal Singh (PW-4), Dr. Gangaram (PW-5), Hari Ram (PW- 6), Sohan Lal (PW-7), Bhagwan Das (PW-8), Kedar Nath (PW-9) and Sunder Lal (PW-10) in support of the prosecution case. The accused persons were examined under Section 313 of the Criminal Procedure Code. They did not examine any witness in defence. (6). After hearing the arguments of both the parties and taking into consideration the evidence produced by the prosecution the learned Additional Sessions Judge convicted Hari Ram under Section 302 of the Indian Penal Code and convicted Sohan Lal and Bagdawat under Section 323 of the Indian Penal Code. The accused persons were sentenced as mentioned above. (7). The learned counsel for the appellant has submitted that in this case there is no reliable evidence to connect the accused persons with the alleged crime. Re- garding the First Information Report Ex.P-23 lodged by Hari Ram, it has been submitted that the First Information Report Ex.P-23 is not admissible in evidence against the accused Hari Ram because it is hit by Section 25 of the Evidence Act and this report cannot be used as evidence against Sohan Lal and Bagdawat because it is not a substantive piece of evidence. Regarding the recovery of dead body from the house of the accused Hari Ram it has been submitted by the learned counsel for the accused appellant that it has come on record that the room from which dead body was recovered was used for the purpose of keeping animals in it and had no door in it and, therefore, it should be held that the room from which the body was recovered was accessible to every person and the dead body of Rupa Ram might have been placed there by some unknown persons who had assaulted him. Regarding the evidence of Sohan Lal (PW-7) the learned counsel for the appellants has submitted that Sohan Lal (PW-7) is an unreliable witness, his litiga- tion against Smt. Para was pending. Besides he was interested in taking the land belonging to Smt. Para and, therefore, he was not happy with the accused Hari Ram because Smt. Para had given his land to Ram Pratap who is the brother of the accused. The testimony of Sohan Lal (PW-7) has been challenged on one other ground, namely, that he did not report about the incident to the Police or to any other person soon after the occurrence. (8). The submission made by the learned counsel for the appellant is that the testimony of Sohan Lal (PW-7) is unreliable; the First Information Report Ex.P-23 cannot be used against the accused persons and the recovery of the dead body from the room belonging to the accused Hari Ram does not justify the inference that Hari Ram had caused injuries to the deceased and placed the dead body in his house. It is, therefore, prayed that the appeal be allowed and the appellants should be acquitted of the charges for which they have been convicted and sentenced. The learned Public Prosecutor has supported the conviction as well as sentence ordered by the learned Additional Sessions Judge. (9). We have carefully considered the rival arguments and the evidence produced by the prosecution in this case. The prosecution has examined 10 witnesses to support its case. (10). Jail Singh (PW-1) has not supported the prosecution story. He has been declared hostile. He was confronted with portions A- B, C-D and E-F of the state- ment Ex.P-1 recorded by the Police under Section 161 of the Criminal Procedure Code. The prosecution has examined 10 witnesses to support its case. (10). Jail Singh (PW-1) has not supported the prosecution story. He has been declared hostile. He was confronted with portions A- B, C-D and E-F of the state- ment Ex.P-1 recorded by the Police under Section 161 of the Criminal Procedure Code. He has denied above mentioned portions of the Police statement in which he had stated that he had witnessed the incident. His statement does not support the prosecution in any manner. (11). Sahab Ram (PW-2) has stated that he did not witnessed the alleged inci- dent. Sahab Ram was declared hostile by the prosecution. He was confronted with portions A-B and C-D of his police statement Ex.P-2. He has denied portions A-B and C-D of his Police Statement. His statement does not support the prosecution in any manner. (12). Imarta Ram (PW-3) has stated that he did not see the accused persons inflicting injuries to Rupa Ram. Imarta Ram was declared hostile and he was confronted with portions A-B and C-D of his police statement Ex.P-3. He denied above mentioned portions of his police statement Ex.P-3. His statement does not support the prosecution in any manner. (13). Gurdayal Singh (PW-4) has stated that he did not see the accused persons inflicting injuries to Rupa Ram. He was declared hostile and he was confronted with portions A-B and C-D of his police statement Ex.P-4. His statement does not help the prosecution in proving the case against the accused persons. (14). Dr. Gangaram (PW-5) conducted the Post-mortem examination of the dead body of Rupa Ram on 20th September, 1982. He has proved the Post-mortem examination report Ex.P-5 and stated that injuries No 1-21 were found on the dead body of Rupa Ram. All the injuries were caused with blunt weapon and death has been caused on account of multiple injuries, laceration of right lung, haemorrhage and shock. The evidence of Gangaram (PW-5) proves that Rupa Ram had received as many as 21 injuries and he died on account of haemorrhage and shock. (15). Hari Ram (PW-6) has stated that in his presence the police prepared the site plan Ex.P-6 and recovered the dead body of a man from the house of Hari Ram and prepared the memo Ex.P-7. (15). Hari Ram (PW-6) has stated that in his presence the police prepared the site plan Ex.P-6 and recovered the dead body of a man from the house of Hari Ram and prepared the memo Ex.P-7. However, he has added that he did not enter the house and, therefore, he did not see the dead body with his eyes. This witness was declared hostile by the prosecution. He admitted his signatures from Ex.P-6 to Ex.P-15. In his cross-examination he has stated that the place from which dead body had been recovered was a `thatch without any doors and at the time of recovery of the dead body no person was living in the room which was adjoining to the thatch. (16). Sohan Lal (PW-7) is the solitary eye witness of the occurrence. We will consider his evidence later on. (17). Bhagwan Das (PW-8) is the Police Officer who conducted investigation in this case. He arrested the accused persons and recovered lathis in consequence of the information given by the accused. He has proved signatures of Sher Singh on Ex.P-1 to Ex.P-4. (18). Kedar Nath (PW-9) is the constable who carried eight sealed packets to the Forensic Science Laboratory, Jaipur and deposited them there and obtained the receipt Ex.P-25. (19). Sunder Lal (PW-10) is the Police Constable who had scribed the First Information Report Ex.P-23 and in whose presence Sher Singh A.S.I. had recovered the dead body from inside the house of the accused Hari Ram. Sunder Lal has stated that Ex.P-11, Ex.P-6, Ex.P-24, Ex.P-12, Ex.P-7, Ex.P-8 and Ex.P-9 had been scribed by him. Sher Singh A.S.I. before whom accused Hari Ram gave oral information which was recorded on Ex.P-23 could not be examined by the trial Court because he had expired. (20). We have carefully considered the evidence given by the prosecution witnesses. Sohan Lal (PW-7) is the only witness who has supported the prosecution case by stating that the deceased Rupa Ram was given a beating by the accused Hari Ram, Sohan Lal and Bagdawat. It is also stated by Sohan Lal (PW-7) that after giving a beating to Rupa Ram the accused persons dragged him towards their house which was at a distance of one square from the place where he was beaten. It is also stated by Sohan lal (PW.7) that the dead body of Rupa Ram had been recovered from a room belonging to Hari Ram. It is also stated by Sohan lal (PW.7) that the dead body of Rupa Ram had been recovered from a room belonging to Hari Ram. Regarding the motive Sohan lal (PW-7) has deposed that accused persons wanted to occupy the land belonging to Smt. Paro by use of force. And that Smt. Paro had went away from the village four days before the incident and Rupa Ram (deceased), who was the resident of Punjab had visited the village with a view to assist Smt. Paro. Sohan Lal (PW-7) was asked why he did not report the matter to the Police and he replied that he did not report the matter to the Police because he had no enimity against the accused. In his cross-examination he denied his suggestion that he wanted to occupy the land of Smt. Paro. He was confronted with his Police statement Ex.D-1 from portions A-B and C-D. In portion A-B of Ex.D-1 Sohan Lal (PW-7) had stated before the Police Officer that Smt. Paro had executed an agreement in favour of Ram Pratap Jat resi- dent of Ratanpura. In portion C-D of Ex.D-1 it was stated that when Hari Ram started cultivating the land of Smt. Para, a case was started and thereafter several cases were instituted. In view of the statement contained in portion C-D of Ex.D-1 it is proper to infer that Sohan Lal (PW-7) was not happy with the accused Hari Ram who had started cultivating the land of Smt. Para. In his cross-examination Sohan Lal (PW-7) revealed that he did not tell about having witnessed the incident to any person in the village. He has further admitted that the `Kotha from which the dead body of Rupa Ram had been recovered was used for keeping animals and there is no doors on the entrance of the `Kotha. (21). We have carefully considered the evidence of Sohan Lal (PW- 7), who is the solitary eye witness in this case. The incident is alleged to have occurred at 10.00 P.M. at the Puly. There is no evidence to show that there was any source of light at the place of incident so as to enable Sohan Lal (PW-7) to have recognised the assailants and the victims of assault. The incident is alleged to have occurred at 10.00 P.M. at the Puly. There is no evidence to show that there was any source of light at the place of incident so as to enable Sohan Lal (PW-7) to have recognised the assailants and the victims of assault. In the absence of evidence to show that there was any source of light, it is difficult to infer that Sohan Lal (PW 7) had recognised the victim and the assailants. His conduct in not telling about the incident to any other person in the village and not reporting the matter to the Police makes his testimony doubtful and we find force in this submission of the learned counsel for the appellant that if Sohan Lal (PW-7) was an eye witness of the occurrence, he ought to have told about the incident to the other villagers and reported the matter to the Police because Rupa Ram (deceased) who is alleged to have been assaulted by the appellants is the real brother of Smt. Para and being relative of Smt. Para was related to the witness Sohan Lal (PW-7). (22). The place from where the dead body of Rupa Ram was recovered was an open thatch on which there was no doors and on the date of recovery of the dead body Hari Ram and the members of his family were not living in that room. This shows that the room was accessible to all, and the dead body of Rupa Ram might have been placed there by some other person or persons. Recovery of dead body of Rupa Ram from that room does not lead to the inference that it was Hari Ram who had placed the dead body there. (23). There is another circumstance which exposes the prosecution version as contained in the First Information Report Ex. P-23 to serious doubts. In the First Information Report Ex. P.-23 it is stated that Sohan Lal, Jail Singh, Sahab Ram, Gur- dayal Singh and other persons were witnessing the occurrence (when the deceased Rupa Ram was being assaulted). It is also stated in the First Information Report Ex.P.-23 that the lathi of accused Hari Ram was lying in the room in which the dead body of Rupa Ram was lying. It is also stated in the First Information Report Ex.P.-23 that the lathi of accused Hari Ram was lying in the room in which the dead body of Rupa Ram was lying. Since the room from which the dead body of Rupa Ram had been recovered had no doors on it and it was in the possession of Hari Ram, there was nothing to prevent Hari Ram to remove his own lathi from the room. We fail to understand the reason why he allowed his lathi to remain lying in that room. The names of the eye witnesses, namely, Sohan Lal and others in the First Information Report Ex. P-23 lodged by Hari Ram makes the version given in Ex.P.23 highly doubtful. The incident occurred as alleged to have taken place at 10.00 P.M. at Puly wher there was no source of light. It was not possible for the assailants to have recognised the persons who were witnessing the incident and it was quite unnatural on the part of the accused Hari Ram to have given the names of the persons who witnessed the incident without any asking by the Station House Officer who recorded Ex. P-23. In our opinion the prosecution story that Ex.P.-23 had been recorded at the instance of Hari Ram is highly doubtful. Sher Singh A.S.I. who got Ex.P-23 recorded has not been examined in the trial Court because he expired. But his death does not prevent this Court from finding out whether the document Ex. P-23 contains a true version of the incident or contains a doubtful version of the incident. In our opinion it was quite unnatural for Hari Ram to have given the names of the eye witnesses of the occurrence in the First Information Report Ex.P.-23 and it was also highly unnatural for him to have left his lathi in the room where the dead body of Rupa Ram was lying where he could have easily removed his lathi from the room and, therefore, we come to the conclusion that the First Information Report Ex. P.-23 does not contain any true record of informa- tion given by Hari Ram at the Police Station. P.-23 does not contain any true record of informa- tion given by Hari Ram at the Police Station. It is quite possible that the real assailants who committed the murder of Rupa Ram placed the dead body of Rupa Ram in the room belonging to Hari Ram the accused- appellant with a view to falsely implicate him and that they manipulated the recording of the First Information Report Ex.P.23 which contains the names of the eye witnesses of the incident. It may also be pointed out that almost all the eye witnesses except Sohan Lal (PW 7) have turned hostile and they have not supported the prosecution case. (24). For reasons mentioned above and having regard to all the facts and circumstances of the case, particularly the fact that the incident occurred at 10.00 P.M. at Puly and there was no source of light, we hold that it was not possible for anyone to have recognised the assailants and the victims and the witesses standing at considerable distance from the scene of occurrence. We further hold that Sohan Lal (PW-7) who is the solitary eye witness of the occurrence is a chance withness because at 10.00 P.M., it was not usual for him to be present at the Puly where the incident is alleged to have taken place. We are further of the opinion that the conduct of Sohan Lal (PW 7) in not reporting the matter to the Police and the omission on his part to tell other villagers about the incident, makes his testimony doubtful and in view of the fact that he was a person interested in the land of Smt. Para and was, therefore, not happily disposed towards the accused Hari Ram who was cultivating the land of Smt. Para, it is highly unsafe to rely upon his statement. In fact we have doubt in it whether he was present at the spot as he had stated. The evidence of Sohan Lal (PW 7), therefore, does not assist the prosecution in establishing charges against the accused persons. (25). The First Information Report Ex. P-23 is open to serious doubts and it is inadmissible against the accused. In fact we have doubt in it whether he was present at the spot as he had stated. The evidence of Sohan Lal (PW 7), therefore, does not assist the prosecution in establishing charges against the accused persons. (25). The First Information Report Ex. P-23 is open to serious doubts and it is inadmissible against the accused. The recovery of the dead body from the room belonging to Hari Ram is the solitary circumstance and in our opinion this circumstance is not sufficient to reach the conclusion that the accused persons gave beating to Rupa Ram and forcibly brought him to the room and committed his murder because it is quite possible that the real assailants of Rupa Ram might have placed his dead body in the room belonging to Hari Ram with a view to falsely implicate him in this case. (26). For reasons mentioned above the conviction as well as sentence ordered by the learned Additional District and Sessions Judge cannot be maintained. We, therefore, allow the appeal. Conviction as well as sentence ordered by the learned Additional District and Sessions Judge No. 2 Hanumangarh vide judgment dated 12th April, 1984 are hereby set aside and quashed. Appellant Hari Ram is hereby acquitted of the charge punishable under Section 302 of the Indian Penal Code and accused Sohan Lal and Bagdawat are hereby acquitted of the charge punishable under Section 323 of the Indian Penal Code. The accused-appellants are on bail. Their bail bonds are hereby cancelled. They need not surrender.