Kunan Ram v. State of Rajasthan — 1998 DIGILAW 221 (RAJ)

Honble PRASAD, J.–The two accused appellants were tried by the Court of learned Sessions Judge, Merta in Sessions Case No.55/1977 for offences under Section 302 I.P.C. and in the alternative under Section 302 read with Section 34 I.P.C. The learned Sessions Judge found that part played by the individual accused have been established by the prosecution, therefore, the offence punishable under Section 302 I.P.C. is made out against them. The accused were, therefore, convicted under Section 302 I.P.C. and sentenced to imprisonment for life and a fine of Rs.5,000/-. (2). Being aggrieved by the aforesaid conviction and sentence, both the accused appellants have filed the present appeal. (3). The prosecution is based on a report, lodged by Jora Ram, brother of the deceased Jeewan Ram, at Police Station, Makrana at 3.45 A.M. on 8.7.1977. Accord- ing to the prosecution case at about 11 A.M. on 7.7.1977 while the first informant Jora Ram and deceased Jeewan Ram were working in their fields, they saw Kishna, brother of accused Kunan and Kana performing field clearing operation. Jeewan Ram felt that they are not entitled to do so. Therefore, he exhorted them to desist from doing so. The said Kishna and Kana fled away from the field after jumping the Math and entered the field of Pusha. They were followed by Jeewan Ram. In that field the accused came out from their hiding in the bushes and assaulted the deceased. The deceased fell down and both the accused gave various lathi blows on different parts of the body of the deceased Jeewan Ram. The first informant claims that he had seen the incident from some distance and did not intervene as he was afraid that he will also suffer the consequences. The first informant claims that he thereafter went to the village and informed his uncle Lachhman, Puran, Daroga Hanuman Singh and Govind Singh and alongwith them returned to the scene of occurrence and found Jeewan Ram dead. (4). In the first information report, the possible motive was alleged. For the last 2 and 2 1/2 years a dispute was going on between the accused Kunan who is husband of Mangli whose father Bhaggu had died and Jeewan Ram in respect of a field of Bhaggu. On the land of Bhaggu, Jeewan Ram claimed right as he had been tied the turban on the death of Bhagwana (Bhaggu) father of Mangli. On the land of Bhaggu, Jeewan Ram claimed right as he had been tied the turban on the death of Bhagwana (Bhaggu) father of Mangli. Accused Kunan Ram was also claiming those lands as he was living as Ghar Janwai of Bha- ggu. The deceased also claimed himself to be adopted son of Bhaggu. After lodging of the first information report the Investigating Officer reached the scene of occurrence and remained there until 11.7.1977 and conducted the investigations. After the investigation, a charge-sheet was filed. The charges under Section 302 and in the alternative under Section 302 read with Section 34 I.P.C. were framed against the accused appellants. The accused denied the charges and claimed trial. (5). The prosecution examined 12 witnesses out of which 3 were examined as the direct witnesses of the occurrence. Apart from the direct evidence the prosecution also pressed into service the evidence of P.W.1 Baksu Singh, P.W.3 Umaid Singh and P.W.4 Sheokaran who alleged that the accused had made extra judicial confession before them. Recovery of blood stained articles was also relied. (6). The learned Sessions Judge after considering the evidence produced by the prosecution came to the conclusion that P.W.9 Jora Ram is an eye-witness of the occurrence. The other two alleged eye-witnesses P.W.10 Kishna Ram and P.W.11 Kana Ram have not supported the prosecution case. The learned Sessions Judge, therefore, discarded the evidence of P.W. 10 Kishna Ram and P.W.11 Kana Ram. The evidence of P.W.9 Jora Ram has been discussed in detail. Jora Ram being the real brother of deceased was found as natural. It was also held that he was present on the scene of the occurrence and was truthful. (7). The learned Sessions Judge has opined that once when he has accepted the evidence of P.W.9 Jora Ram as eye-witness, then turning of the other witnesses P.W.10 Kishna Ram and P.W.11 Kana Ram hostile, does not affect the prosecution case. It has also been observed that the evidence of Jora Ram P.W.9 is truthful, believable and dependable. (8). After finding P.W.9 Jora Ram the eye-witness to be reliable, the learned Sessions Judge discussed the evidence of three witnesses with regard to the extra judicial confession, made before them, by the accused. It has also been observed that the evidence of Jora Ram P.W.9 is truthful, believable and dependable. (8). After finding P.W.9 Jora Ram the eye-witness to be reliable, the learned Sessions Judge discussed the evidence of three witnesses with regard to the extra judicial confession, made before them, by the accused. The learned Sessions Judge accepted the testimony of Umaid Singh P.W.3 and P.W.4 Sheokaran, that the accused had admitted before them that the offence has been committed by them. As regards the evidence of third witness P.W.1 Bakshu Singh, the learned Sessions Judge found that this witness was not previously connected with the accused in any way and it was not possible that the accused will make a confession before a witness while they were on the way and, therefore, discarded the evidence of extra judicial confession made before the witness Bakshu Singh from consideration. (9). The learned Sessions Judge further found that blood found on the clothes of the accused persons also connected the accused with the crime. The learned Sessions Judge also considered the presence of a possible motive regarding claim over the land of Bhaggu father in-law of the accused Kunan Ram. Having relied upon the case of the prosecution the accused were convicted as aforesaid. (10). In appeal the learned counsel for the appellants has impugned the judgment on various counts. The learned counsel for the appellants has assailed the finding of the learned Sessions Judge before us and has urged that the findings recorded against the accused are not sustainable. According to the learned counsel the occurrence took place on 7.7.1977 at about 11 A.M. The Police Station is at about 13 miles from the scene of occurrence yet the first information report was lodged at 3.45 A.M. on 8.7.1997. There is no explanation given by the prosecution as to why they would not get the information recorded forth-with when the Police Station is situated at a distance of 13 miles from the place of the occurrence. (11). Expanding his argument, the learned counsel has further urged that the Police Station, Makrana and the Court of Judicial Magistrate Makrana are situated in the same town yet the copy of the first information report was not sent to the Court of Judicial Magistrate forth-with. (11). Expanding his argument, the learned counsel has further urged that the Police Station, Makrana and the Court of Judicial Magistrate Makrana are situated in the same town yet the copy of the first information report was not sent to the Court of Judicial Magistrate forth-with. The same was received by the learned Magistrate on 11.7.1977.According to the endorsement made in the first information report, the same was despatched from the Police Station on 8.7.1977 itself. If the despatch was made on 8.7.1977 then there was no reason as to why the first information report was not received by the learned Magistrate on that very day. (12). The argument of the learned counsel for the appellant is that the delay in recording the first information report and sending the report to the Court of the learned Magistrate is a strong ground which makes out a clear infringement of Sec- tion 157 Cr.P.C. This also established that the prosecution has utilised this period for concocting a case. In this regard, the learned counsel for the appellants has drawn the attention of the Court towards the statement of P.W.2 Pusha Ram in whose field the alleged occurrence has taken place. According to the learned counsel for the appellants, this witness has not stated that around the time of occu- rrence Jora Ram was any where near the scene of occurrence. This witness states that after he spotted the dead body, one hour there after he noticed certain persons on the scene of occurrence. They included Kishna Ram, Govind Singh and P.W.9 Jora Ram. Thus according to this witness Jora Ram was seen at the scene of occurrence only one hour after the occurrence. This witness further states that th- ese persons were talking amongst themselves as to who has committed this injustice. The interpretation given by the learned counsel for the appellant on the testimony of this witness is that at the time when the villagers were collected at the field of witness P.W.2 Pusha Ram they were not knowing about the accused persons. P.W.9 Jora Ram was also one of them. (13). To support his contention he placed reliance on the testimony of other witnesses. He quotes from the statement of P.W.6 Ramu Ram, that when he arrived in the field he saw Kishna Singh, Govind Singh, Jora P.W.9 and Ugam Singh etc. sitting there. P.W.9 Jora Ram was also one of them. (13). To support his contention he placed reliance on the testimony of other witnesses. He quotes from the statement of P.W.6 Ramu Ram, that when he arrived in the field he saw Kishna Singh, Govind Singh, Jora P.W.9 and Ugam Singh etc. sitting there. According to this witness they were saying at the beginning that as to who had committed this injustice. Later on when the foot prints were examined, they did guess work and on that, this was inferred that it were the accused persons who were responsible for it. In this context he also draws attention of the Court to the statement of P.W.7 Kana Ram. This witness had accompanied Jora Ram while he went to the Police Station for lodging the first information report. According to this witness he was informed by Jora Ram of his doubts, while they were going to Makrana for lodging the first information report. P.W.9 Jora Ram said that when he examined the foot prints he suspected that the two accused persons had killed his brother. Thus, according to this witness who accompanied the witness Jora Ram for lodging the first information report there was only a suspicion in the mind of Jora Ram that these accused persons have committed the crime. He was not certain about the identity of the killer until they arrived at the police station. (14). Learned counsel for the appellants has also drawn attention of the Court to the testimony of D.W.1 Govind Singh and D.W.4 Kishan Singh who were alleged to be present at the scene of occurrence. P.W.9 Jora admitted to have informed them about the incident after reaching the village. These witnesses have also stated that they were not informed by the witness Jora Ram that it is the accused persons who have committed the crime. In this back-ground, the learned counsel for the appellants urges that the testimony of the eye witness P.W.9 Jora Ram is not worth reliance because he has styled himself to be an eye-witness of the incident when he was not. The prosecution witnesses have stated that at the time when they arrived at the scene of occurrence, no body was knowing as to who was the culprit. The prosecution witnesses have stated that at the time when they arrived at the scene of occurrence, no body was knowing as to who was the culprit. Until witness P.W.9 Jora Ram and P.W.7 Kana Ram arrived at the police station, the accused were not supposed to be the persons seen by the witness P.W.9 assaulting the deceased. Jora Ram had a lurking doubt in his mind by observing the foot prints. On the cross checking with these witnesses the learned counsel for the appellants wants that the testimony of this witness should be discarded. (15). Further critism of this witness as made by the learned counsel for the appellants is that this witness is the real brother of the deceased. When the two accused persons were making assault on the deceased he should have come for- ward and intervened. That would make them two is to two and they could definitely negotiate the accused. He desisted himself from making an attempt to rescue his real brother, this conduct of the witness is quite unnatural. This witness has also resiled from his previous statement on material particulars and, therefore, he has a tendency of falsifying his own stand. He even excludes the presence of P.W.2 Pusha Ram in whose field the occurrence took place thereby elimination the chances of a witness whose presence the prosecution itself tried to establish by examining Pusha Ram as P.W.2. (16). Further criticism of P.W.9 Jora Ram made by the learned counsel for the appellant is that this witness says that when Jeewan Ram followed Kishna and Kana the accused came from the hiding. This is an unnatural explanation of this witness regarding the presence of the accused. By no stretch of imagination it can be accepted that the deceased would follow Kishna and Kana and the accused kept himself hiding in the field of Pusha. There is no reason to believe that there was previous knowledge to the accused that the deceased would follow Kishna and Kana and these accused will go in hiding. The story of hiding is per se only an imagination of this witness. Further this witness states that first he saw the accused giving beating to Jeewan and thereafter he went to the village and did not intervene and rescue his brother. The story of hiding is per se only an imagination of this witness. Further this witness states that first he saw the accused giving beating to Jeewan and thereafter he went to the village and did not intervene and rescue his brother. This conduct of the witness is also unnatural and thus, the learned counsel for the appellant urges that this witness is an unnatural witness and should not be believed. (17). As regards the witnesses of extra judicial confession the learned counsel for the appellant has urged that P.W.1 Baksu Singh has not even been relied upon by the learned Sessions Judge because it has been felt by the learned Sessions Judge that there is no reason why the extra judicial confession has been made by the accused before this witness. Regarding the two other witnesses of extra judicial confession P.W.3 Umaid Singh and P.W.4 Sheokaran the learned counsel for the appellant has urged that both these witnesses state that when they met the accused while the accused was detained by the villagers on 15.7.1977. The very fact that the accused have been detained by the villagers goes to show that they were not exercising their free will. Further there was no reason why these witnesses would be taken into confidence by the accused more particularly when Pusha Ram was one of those who kept the accused in detention and Pusha Ram has said nothing in his statement regarding such confinement by him and other villagers of the accu- sed. On the contrary Pusha Ram does not speak about the fact that he and other villagers detained the accused and the accused made the extra judicial confession. If Pusha Ram had not detained the accused in the morning of 15.7.1977 then there is no question of these witnesses asking the accused and the accused confessing the guilt before them. The first contingency being not established, the subsequent part cannot be said to be found proved. Another aspect is very material wherein this witness has said that they had handed over the accused to the police soon thereafter. The further criticism levelled against the statements of these witnesses is that their statements under Section 164 Cr.P.C. were of recorded by the police. The police had a basic suspicion about their veracity and, therefore, they should not be believed. (18). The further criticism levelled against the statements of these witnesses is that their statements under Section 164 Cr.P.C. were of recorded by the police. The police had a basic suspicion about their veracity and, therefore, they should not be believed. (18). Regarding the blood stained clothes, the learned counsel submitted that the accused were arrested on around 15.7.1977 whereas the occurrence had taken place on 7.7.1977. For all these days they would not have kept on wearing the same clothes. They have sufficient time to destroy their proof of culpability and, therefore, no reliance can be placed on the recovery of blood stained clothes. Further until evidence regarding the keeping of the seals of the samples intact is not coming force. (19). Learned counsel for the State urged that eye-witness P.W.9 has rightly been believed by the trial court. His evidence has been discussed by the learned trial Judge with precision and there has been nothing wrong in the appreciation of the evidence of P.W.9 Jora Ram. In presence of the testimony of an eye-witness the other pieces of evidence loose their importance. However, the evidence of extra judicial confession has also been proved by the evidence of P.W.3 Umaid Singh and P.W.4 Sheokaran so also the recovery of blood stained clothes supports the case of the prosecution. The criticism levelled by the learned counsel for the appellant is of no consequence and should not come in the way of the prosecution in establishing its case. (20). The foremost question in the present appeal which is to be decided by us is about the nature of evidence given by P.W.9 Jora Ram. Jora Ram who is the real brother of the deceased has claimed himself to be the eye-witness. He has not intervened at the time of occurrence. So much so he says that he saw the occurrence from a distance and then left for the village. This is an unnatural conduct on the part of a real brother who is watching the culprits assaulting his bother. The natural conduct of the witness could have been of even shouting for help. The time was such that the other villagers/farmers could have heard his shouts. The days were of agricultural operations and it could be presumed that the other agriculturists were in their field. All the circumstances show a kind of artificiality in the conduct of this witness. (21). The time was such that the other villagers/farmers could have heard his shouts. The days were of agricultural operations and it could be presumed that the other agriculturists were in their field. All the circumstances show a kind of artificiality in the conduct of this witness. (21). Further this witness states that soon after coming to the village he told to the villagers. Few of those villagers have been examined as prosecution witnesses, some of them as defence witnesses. It is expected that when a witness goes and tells another person and informs them about the occurrence then he would give up the whole account of it. These witnesses have stated that when they assembled at the scene of occurrence they were not sure as to who has killed Jeewan Ram. This witness also joined them in expressing the anguish as to who has committed this injustice. It was only after the scrutiny of the foot prints that a suspicion arose that it could be the accused persons. This has come in the statements of P.W.7 Kana Ram, P.W.6 Ramu Ram, D.W.1 Govind Singh and D.W.2 Birma Ram that when they assembled alongwith P.W.9 Jora Ram the name of the accused was not known with certainty. If they are believed then this can be a hazardous to accept the version of this witness that he has seen the occurrence as he has described. (22). Most important is the statement of P.W.7 Kana who had accompanied P.W.9 Jora Ram to lodge the first information report. While they were going to the police station during their travel to the police station. Only a doubt was expressed by P.W.9 Jora Ram that it could be the accused persons. This again dilutes the circumstance that this witness P.W.9 Jora Ram has seen the occurrence. (23). If the testimony of all witnesses to whom P.W.9 Jora Ram met after the occurrence and P.W.7 Kana Ram is examined in the light of the statement of P.W.2 Pusha Ram then there remains no doubt that at the time of occurrence no body was there and it was after an hour of the occurrence that the villagers arrived including P.W.9 Jora Ram. By this sequence of events the presence of Jora Ram is excluded from the scene of occurrence. By this sequence of events the presence of Jora Ram is excluded from the scene of occurrence. This coupled with the fact that his real bro- ther was being assaulted and he did not intervene also stands to reason that he was not present on the scene of occurrence. (24). The occurrence took place at about 11 A.M. on 7.7.1977, the first information report was lodged at about 3.45 A.M. on 8.7.1977. This delay speaks of the time required to arrive at a possible accusation. Since according to P.W.7 the first informant was not sure upto the time he arrived at the police station as to who were the assailants. Perhaps the first information report was not recorded at the alleged time because the recording date is 8.7.1977 in the morning at 3.45 A.M. and the S.H.O. remained in the village for two days after arriving there. He also fails to explain as to why the first information report was sent to the Magistrate late. It has also been brought on the record that after the Roznamcha report No.75 which is the report of the incident on 8.7.1977 the next report is of 11.7.1977 as report No.76. For almost 3 days the police station Roznamcha has not recorded anything but this incident. This creates a doubt about the correct time of the lodging of the first information report. (25). When the report lodged on 8.7.1977 reached the Magistrate on 11.7.1977 the suspicion becomes stronger. If we examine this in the light of the statement of P.W.7 Kana that at the time when he and P.W.9 Jora Ram were going to the police station to lodge the first information report they were not knowing about the actual assailants, then it could be said that the name of the accused as figured in the first information report was not on the saying of P.W.9 Jora Ram. The first information report was then a post investigation creature which was recorded some time on or before 11.7.1977 and thereafter the report was sent to the Magistrate. All this delay was utilised in creating Jora Ram as an eye-witness of the incident. (26). If Jora Ram is excluded from consideration then what remains in the pro- secution case is the evidence of extra judicial confession. One of the witnesses of extra judicial confession has already been disbelieved by the learned Sessions Judge. All this delay was utilised in creating Jora Ram as an eye-witness of the incident. (26). If Jora Ram is excluded from consideration then what remains in the pro- secution case is the evidence of extra judicial confession. One of the witnesses of extra judicial confession has already been disbelieved by the learned Sessions Judge. The other two witnesses state that they met the accused while he was in the custody of Pusha Ram and others on 15.7.1977. Pusha Ram has stated nothing about it. If the accused was not in the custody of Pusha Ram and others then there is no question of these witnesses meeting accused there. If the meeting point is not established then the factum of extra judicial confession made by these witnesses becomes a subject matter of doubt. The extra judicial confession by itself is a very weak type of evidence and the manner in which it has been alleged to be made does not inspire confidence. The same cannot be said to have been made as deposed by these witnesses. If it was made when these witnesses met the accused then they were in the custody of Pusha Ram then the statement of Pusha Ram would not have been silent on this part. Under these circumstances, the evidence of extra judicial confession is also ruled out from consideration. (27). This leaves us with the evidence of recovery of blood stained clothes from the accused. The occurrence took place on 7.7.1977. The accused were arrested on 15.7.1977. For all these days it cannot be accepted that the accused had kept on wondering with the same clothes and have, therefore, preserved this piece of evidence for being used against them. Further, the link evidence of keeping these articles in preserve condition has not been proved. When we have expressed our doubt about the recovery of blood stained clothes in the condition in which they were at the time of occurrence the subsequent recovery cannot make out a strong case in favour of the prosecution. Therefore, this is also excluded form consideration. (28). From the foregoing discussion the pieces of evidence relied upon by the prosecution has become subject to doubt and have been held to be not of worth consideration, this leaves the prosecution without any support and consequently it fails. (29). In the result, the appeal is allowed. Therefore, this is also excluded form consideration. (28). From the foregoing discussion the pieces of evidence relied upon by the prosecution has become subject to doubt and have been held to be not of worth consideration, this leaves the prosecution without any support and consequently it fails. (29). In the result, the appeal is allowed. The conviction and sentences recor- ded against the appellants are set aside. They are acquitted of the charges levelled against them. They are on bail, their bail bonds are cancelled.