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2002 DIGILAW 1190 (RAJ)

BHERU v. STATE OF RAJASTHAN

2002-07-09

B.PRASAD, N.P.GUPTA

body2002
Judgment N. P. GUPTA, J. ( 1 ) THIS appeal has been filed by appellants Balu and Bheru, convicted by the learned Additional Sessions Judge No. 1 Bhilwara, vide judgment dated 17-11-1999 in Sessions Case No. 19/96. The appellant Balu has been convicted for the offence under Sections 302/34, 323 IPC and sentenced to undergo imprisonment for life and fine of Rs. 100/-, in default, to undergo one month simple imprisonment for the offence under Section 302/34, and for the offence under Section 323, has been sentenced to undergo six months simple imprisonment. The appellant Bheru has been convicted for the offence under Sections 302, 323, 325 and 324 IPC, and for the offence under Section 302 sentenced to undergo imprisonment for life and fine of Rs. 100/-, in default to undergo one month simple imprisonment, for offence under Section 325 to undergo three years simple imprisonment and a fine of Rs. 500/- in default to undergo one month simple imprisonment, for the offence under Section 324 IPC, to undergo one year simple imprisonment and fine of Rs. 100/-, in default to undergo 15 days simple imprisonment, for the offence under Section 323 IPC to undergo six months simple imprisonment. ( 2 ) THE brief facts of the case, as appearing from the record, are that on 27-11-1995, on receipt of an information from the Control Room, Bhilwara, the Assistant Sub Inspector, Police Station Kotdi with requisite force, went on the site Holirada of village Aakola at about 11 A. M. and found Laxman lying in injured condition, so also found the deceased Ramchandra lying nearby him. Thereupon, he recorded the statement of Laxman (Ex. P/2), wherein Laxman gave out that at about 4 AM, he and Ramchandra were sleeping after irrigating their filed, Badri and Prabhu were also sleeping under a Neem tree. At that time, he heard some noise of somebody coming from towards the well with a walking stick, thereupon he got up and found that his eldest brother Balu and Balus son Bheru (the two appellants) had come. Bheru was armed with an Axe (Kuihadi) and Balu was having stick. According to Laxman immediately, Balu is said to have given out that Gawan Aagala field is his, and why he (Laxman) is irrigating it. With telling this, both the accused persons caused injuries to him. Thereupon he raised a cry and fell down. Bheru was armed with an Axe (Kuihadi) and Balu was having stick. According to Laxman immediately, Balu is said to have given out that Gawan Aagala field is his, and why he (Laxman) is irrigating it. With telling this, both the accused persons caused injuries to him. Thereupon he raised a cry and fell down. Then his brother, the deceased, shouted as to who is there? whereupon the two appellants are said to have attacked him (Ramchandra ). Bheru caused injuries with Axe on the head of Ramchandra, and Balu gave 4-5 indiscriminate blows with Lathi to Ramchandra. Ramchandra is alleged to have got up from the cot to save himself, but only after travelling a short distance, fell down. Bheru and Balu being frightened are said to have run away towards the village. Amraram Jat and Fatta Gurjar, who were irrigating the neighbouring field, also came and shouted as to what is the matter, and who are the miscreants? Whereupon, the accused persons took to heels. It was also given out that in an injured condition, he somehow dragged himself to Ramchandra and found him dead. This statement was sent to the Police Station Kotdi for registering a case, thereupon a case under Section 30 2/34 IPC was registered and investigation was undertaken. ( 3 ) AFTER completing the investigation, challan was filed, against accused appellant Bheru for the offence under Sections 302, 325, 324, 323 IPC, while against accused Balu, for the offence under Sections 302/34, 325, 324, 323 IPC. The accused appellants pleaded not guilty, and claimed trial. ( 4 ) DURING trial, the prosecution examined 23 witnesses and tendered 38 documents in evidence. The accused persons in their statement under Section 313 Cr. P. C. took the stand of denial, and contended that the witnesses are telling lie, and that they have been falsely implicated, and that they did not commit any offence. Two documents ofcourse were tendered in defence evidence. ( 5 ) THE learned trial court. after completing the trial, convicted and sentenced the two accused persons as above. ( 6 ) ASSAILING the impugned judgment, it is contended by the learned counsel for the appellants that the court below has committed error in recording conviction of the appellants. Two documents ofcourse were tendered in defence evidence. ( 5 ) THE learned trial court. after completing the trial, convicted and sentenced the two accused persons as above. ( 6 ) ASSAILING the impugned judgment, it is contended by the learned counsel for the appellants that the court below has committed error in recording conviction of the appellants. According to the learned counsel a proper analysis of record would show that there is absolutely no evidence against the appellants so as to hold them guilty of the offence. It is contended that though the four witnesses PW-10 Amra, PW-11 Fatehlal Gurjar PW-12 Prabhu and PW-16 Badrilal have been examined purportedly as eyewitnesses, while a bare reading of their statements would show that they are not at all eyewitnesses. That apart, Prabhu PW-12 had already turned hostile as he has not supported the prosecution story. So far as the other situation deposed by the three purported eyewitnesses PW-10, PW-11 and PW-16 are concerned, they are contradicted either by themselves interse, or by what has been deposed by the other witnesses including PW-5 Rambux, PW-14 Badam, PW-13 Chandu, PW-22 Devi Singh, so also by the statement of PW-18 Dr. Avdhesh, and thus, this part of the evidence also is of no help to the prosecution against the appellants. ( 7 ) IT is then contended that, it is clear from the statements of various witnesses that the witnesses have motive to depose against the appellants, and therefore also, their evidence is required to be looked with circumspection. Regarding other circumstances relied upon by the learned trial court, it is contended that mere recovery of Axe or lathi or clothes of the accused persons is not sufficient circumstance to convict the appellants for the offence. It is contended that Lathi is not shown to be stained with blood, while the Axe has not been shown to be stained with blood of the victim. Likewise, on the clothes of the accused also, the blood of the group of deceased (victim) has not been found, therefore, these recoveries are of no adverse consequences, so as convict the appellants. ( 8 ) THE next contention is that the victim Laxman has not been examined in the Court, and his statement recorded by the Police being Ex. P/2 does not corroborate, rather contradicts the evidence of PW-10, PW-11, and PW-16 in many respects. ( 8 ) THE next contention is that the victim Laxman has not been examined in the Court, and his statement recorded by the Police being Ex. P/2 does not corroborate, rather contradicts the evidence of PW-10, PW-11, and PW-16 in many respects. ( 9 ) THE next contention raised is, that it is admitted by PW-13 Chandu that the two victims were having dispute on the question of irrigation. Likewise, it has also come on record that this witness PW-13 Chandu was married to Ramchandra, but for some-time, she lived with Laxman. Thus, according to the learned counsel there was a bad blood between the two brothers and, therefore, the possibilities are not ruled out about the two victims having fought within themselves, and in that process received injuries, and thereafter taking advantage of the existing disputes with the appellants, who happened to be brother and nephew of the victims, they have been impleaded, by cooking up eyewitnesses, and then as a necessary embroidery, other circumstances have been simulated, which are simply required to be brushed aside in view of the testimony of PW-10, PW-11, PW-13, PW-14, PW-16, PW-18, PW-5 and PW-22 read with Ex. P/2, and the appellants are required to be acquitted. ( 10 ) ON the other hand, learned Public Prosecutor has supported the impugned judgment, and contended that the findings recorded by the learned trial court are fully supported by the material on record, and the prosecution case is supported by as many as three eye witnesses, coupled with recovery of articles, motive is also there to support the incident, and it is contended that the contradictions pointed out by the learned counsel for the appellants are wholly insignificant, rather they are natural contradictions which may appear in the evidence of truthful rustic villagers, and, there-fore, their evidence cannot be claimed to be discarded. The learned Public Prosecutor, therefore, contends that the convictions and sentences are required to be maintained. ( 11 ) WE have heard the learned counsel for the appellants, learned Public Prosecutor, and have examined the record very carefully. ( 12 ) AT the outset, it may be observed that present is a case wherein the prosecution seeks to be supported by oral evidence. ( 11 ) WE have heard the learned counsel for the appellants, learned Public Prosecutor, and have examined the record very carefully. ( 12 ) AT the outset, it may be observed that present is a case wherein the prosecution seeks to be supported by oral evidence. True it is that in order to seek strength to the ocular testimony of witnesses, the prosecution has placed some additional material in the form of circumstantial evidence, but then predominantly, here is a case which is sought to be supported on the strength of ocular testimony, as contra distinguished from the case sought to be rested on circumstantial evidence. In this view of the matter, we may first examine and appreciate the oral evidence produced by the prosecution consisting of eyewitnesses. Then other witnesses produced by the prosecution to prove circumstances to support the reliability of the eyewitnesses. ( 13 ) SUFFICE it to say even at the cost of repetition that PW-12 Prabhu has turned hostile and has not supported the prosecution case, inasmuch as all that he has deposed is that while he was sleeping the two accused persons came armed with Lathis and started wielding Lathis , and seeing Lathis he went away to the House of Devbux, and told that the two appellants are fighting with the two victims, thereafter it was only at 8-9 A. M. , when other villagers had assembled, he also went and saw Ramchandra lying dead and Laxman lying injured. He has clearly disowned to have given the statement before the police as contradicted to him by the learned Public Prosecutor. Thus, this witness is of no help to the prosecution. ( 14 ) THE star witness for the prosecution is PW-16 Badri. Thus PW-16 Badri along with Prabhu PW-12 is said to have been available at the field, having gone there to irrigate the field of Laxman at his request. According to this witness, after the water pump was set on, the pump stopped due to deficit water in the well, thereupon both these persons slept down below Neemdi, while Laxman was sleeping on the cot, and Ramchandra was sleeping under Neemdi. According to this witness, after the water pump was set on, the pump stopped due to deficit water in the well, thereupon both these persons slept down below Neemdi, while Laxman was sleeping on the cot, and Ramchandra was sleeping under Neemdi. It was at about 4 A. M. , that he woke up, hearing the hue and cry of Laxman, and saw that Balu gave lathi blow to Laxman on his back, while Bheru gave Kuihadi blow on the right leg and right hand of Laxman. According to this witness on account of increase in the hue and cry, Ramchandra also woke up, and asked as to who is there, whereupon, Bheru inflicted blow with Axe on the head of Ramchandra, whereby Ramchandra fell down, then Balu gave blows to Ramchandra. It is then deposed that after this beating, they felt afraid and, therefore, they ran away towards the village, and told other persons about the two appellants having given beating to the two victims. Then along with other persons, the witness alleges to have returned and found that Laxman was shrieking, while Ramchandra was dead, and blood was oozing out of their injuries. In the last sentence, the witness further states that motor was available on the well, and bulb was on at that time. Be that as it may, in cross-examination, the witness has deposed that the Well is situate at the distance of half kilometer from the village. He asserts that in his previous statement, he had given out about Laxman sleeping on the Kot, though this is not mentioned in the police statement being Ex. D/2. He admitted the night to be a dark night, and that he and Prabhulal had together run away from the scene. According to him, the well is located at the distance of about 20 feet from the place where he was sleeping, and that there are 2-3 Neem trees in between the place where he was sleeping and the well. Regarding the electric bulb being on, he stated to have deposed in the police statement Ex. D/2 though it is not mentioned therein. The most significant admission made in the cross-examination is as under: ghatna KE SAMAY MUJHE GEHIRI NEEND AA GYI THI. YAH GALAT HAI KI NIND KIND KHULTE HI MAI DARKAR BHAG GYA THA. LAXMAN SE AUR RAMCHANDARA SE MAI KAREEB 10ft. DURSO RAHATHA. D/2 though it is not mentioned therein. The most significant admission made in the cross-examination is as under: ghatna KE SAMAY MUJHE GEHIRI NEEND AA GYI THI. YAH GALAT HAI KI NIND KIND KHULTE HI MAI DARKAR BHAG GYA THA. LAXMAN SE AUR RAMCHANDARA SE MAI KAREEB 10ft. DURSO RAHATHA. XAT NIND SE JGA UR DEKHA TAB RAMCHANDARA KHAT SE NEECHE PADA HUA THA AUR SIR PHUTA AUR VEH KIS DISHA MEI USKA SIR PDA HUA THA ISK MUJHE PATA NAHIN. ( 15 ) REGARDING enmity he denied the suggestion that his father was indulged in selling stolen wires which was noticed by the appellant Balu, and therefore, he is giving a false statement. ( 16 ) THUS, a complete reading of the statement of this witness PW-16, makes it clear that he was sleeping at the distance from the victims, he was dead asleep. This is obviously natural, inasmuch as incident relates to late November (27-11-1995) and the time of occurrence is said to be of 4 a. m. In this sequence though he has denied the suggestion about having run away immediately on his waking up, but then significantly, he admits that by the time he woke up, he found Ramchandra lying below the cot with injuries. Suffice it to say that even according to Ex. P/2, the incident commenced with causing injuries to Laxman which attracted the attention of Ramchandra, and then injuries were caused to Ramchandra. Admittedly, after causing injuries to Ramchandra, no injuries were caused to anybody else, and accused persons are said to have run away. In this view of the matter, if the witness finds the victim lying injured, when he gets up, at the aforesaid odd hour in the night, the irresistible conclusion is that the witness did not see the incident of causing injuries to the victims by the accused persons. Thus, this witness even according to his own version does not remain an eyewitness. That apart, this witness has depicted a very suspicious conduct, inasmuch as, immediately after the incident, he ran away to village, but then as appears from the record that the persons of the village had appeared at the time around 11 A. M. , and Ex. Thus, this witness even according to his own version does not remain an eyewitness. That apart, this witness has depicted a very suspicious conduct, inasmuch as, immediately after the incident, he ran away to village, but then as appears from the record that the persons of the village had appeared at the time around 11 A. M. , and Ex. 11 has been prepared at 11 A. M. , then at this very place, a look at the statement of PW-13 Chandu, the widow of the deceased, makes it clear that this witness Badri went to the house of Chandu to call her sons Debi and Bheru. According to Chandu her son Ladu had gone to the field to find out as to what has happened, and on his return, she will tell as to what happened. Then Ladu returned from the field and narrated what he saw. Significantly, this lady Chandu is very categoric when she states BADRI NE MUJHE LADKO KO BULANE KE ALAVA AUR KOIBIAT NAHI BATAYI Thus, the witness has shown very unnatural conduct in, not narrating the things to the widow of the victim, despite his claiming to have rushed to her house immediately after the incident, and consequently this witness does not at all inspire any confidence. ( 17 ) COMING to the evidence of PWs-10 and 11, according to PW-10 Amra, at the relevant time he was irrigating his own field along with Fatehlal PW-11. On hearing the cries of Laxman and Ramchandra, he along with Fatehlal went on the site, and claimed to have seen the two appellants inflicting injuries to the victims with axe and Lathi. He further deposed that he asked the accused as to why they are beating, thereupon they went away. They claimed to have seen the assailants in the light of bulb at 4 A. M. Then he deposed LAXMAN SE MERI BAAT HUI MANE PUCHA KI KASI HUA TO USNE KHAHA KI MERA BHAI AUR BATIJA JO BHERU AND BANU HAI VO MAR GAYE HAI Then he, along with Fateh lal are said to have returned to the field where they were irrigating. There-after when the people came from Kotdi in Motor, they were again called. In cross-examination he was suggested that Balu lodged a complaint against him about theft of electricity, and on that count he nurses grudge against Balu. There-after when the people came from Kotdi in Motor, they were again called. In cross-examination he was suggested that Balu lodged a complaint against him about theft of electricity, and on that count he nurses grudge against Balu. Coming to distance, he claimed his field to be at a distance of 800 to 1200 hands from the place of incident. However, he is categoric that the field of Fatehlal and the witness is adjacent having one common boundary though having separate well. According to him, it takes about five minutes to walk from his field to the place of incident, and has denied the suggestion of this requiring 20-25 minutes. He admits that he did not intervene to disentangle the accused from the victims, rather he told the accused persons from a distance of around 15 feet and did not make any efforts to apprehend them, as he had no reason or purpose to apprehend them. The other material regarding the animosity of the witnesses were also suggested to him. ( 18 ) COMING to PW-11 Fatehlal, he and Amra PW-10, were irrigating on the well of Amra, while according to Amra, both the persons have different fields, and different wells, and were irrigating their respective fields, according to him, Amra was going ahead of him shouting to run as somebody has been killed, thereupon he went on that site, and was told to follow as beating is being given, then the witness and Amra, both went at the place of incident, and found Ramchandra lying dead, and by the time they reached the well, Balu and Bheru had already took to heels. According to this witness, it was Laxman who told him that his brother and nephew have caused injuries to him and to his brother Ramchandra, as a result of which, Ramchandra had expired. Then this witness had said that Bheru is nephew of Laxman, while Balu is brother. Then in cross-examination, he has admitted that the place where they were irrigating, is at a distance of half a kilometer from the place of incident, and that it takes 15 minutes to walk to cover the distance. Apart form the fact that even from the statement of this witness it is clear that before they reached, the injuries have been inflicted, and the accused had gone away. Apart form the fact that even from the statement of this witness it is clear that before they reached, the injuries have been inflicted, and the accused had gone away. It is also clear that it was Laxman who had told them that his brother and nephew have caused injuries. ( 19 ) WHAT is still more significant to note is that a look at the statement of Rambux PW-5 would show that according to him he was working on his well, and he heard the cries of the victim on their receiving injuries, and thereupon, he asked Amra (PW-10) to go and rescue his brother-in-law. On this aspect, no cross-examination has been directed to this witness. Then a look at Ex. P12, further makes it clear that though therein the deponent has alleged Amra and Fatehlal to have come, and on their challenging as to who is the assailant and what is the matter, the accused persons went away. Significantly, Laxman in this statement Ex. P/2, does not even allege to have narrated anything to PW-10 and PW-11. In this very sequence, a look at the statement of PW-14 Badam, clearly shown that she in her examination-in-chief has clearly stated. LAXMAN NE JAB HAM KUA PAR GAYE US VAKT TO KUCH NAHI BATAYA MAGAR ASPATAL JANEKE BAD VAPAS AYA SAPAT AYA YANI HOS AYA TAB BATAYA KI BALU KE PAAS TO LAKADI AUR BHERU KE PAS KULHADI THI Thus, according to this witness, who is none else than a daughter of victim Laxman, may be that Laxman was not unconscious, but he was not in his senses capable of narrating things to anybody, till after he had returned from the Hospital. In this sequence, a look at the injury report of Laxman being Ex. 17, shows that Laxman was medically examined at 1 PM. ( 20 ) THUS, the obvious outcome of the sequence of things as is emerging, if collectively appreciated, is that PW-16 Badri did not see anybody causing injuries, as by the time he woke up, the accused persons had run away. In view of the statements of PW-14, the victim Laxman was not in a proper mental frame so as to tell anybody as to who is the assailant and what the weapons they were carrying, muchless the details of the incident. In view of the statements of PW-14, the victim Laxman was not in a proper mental frame so as to tell anybody as to who is the assailant and what the weapons they were carrying, muchless the details of the incident. This, coupled with the fact that according to PW-5 Rambux, PW-10 Amra has gone to the field at his request, while PW-11 had gone to the field on being asked by PW-10, and according to PW-11, it takes 15 minutes to reach the place of incident, from the place where they were irrigating, with the obvious result that by the time these persons reached the accused persons had already gone away, and apart from the statement of PW14, since even in Ex. P/2, Laxman does not allege to have narrated the incident to these persons PW-10 and PW-11, these witnesses PW-10 and PW-11 can, from no stand point, be taken to be the witnesses who may have seen the incident being committed by the appellants. Regarding Laxman, admittedly he has not been examined in the trial court and the reasons as appears from the record is that after framing of the charge, and before he could be examined in the Court, unfortunately he expired, therefore, the prosecution seeks to invoke his statement Ex. P/2, and therefore, I propose to examine the reliability of Ex. P. 2 also. ( 21 ) IT may be recapitulated that Ex. P. 2 purparts to be recorded at 11 A. M. , while the incident is said to have taken place at 4 A. M. , and the wireless message at the police station was received at 9 A. M. A look at the statement of PW-22, the Investigating Officer shows that on reaching the spot, he recorded the statement of Laxman, and did other investigation regarding Ramchandra, and sent a Tahrir for postmortem examination of Ramchandra, and also alleges to have immediately forwarded the victim Laxman to Hospital. As against this, according to PW-14, the victim Laxman was not in a proper mental frame even to narrate the incident, or rather it was only after returning from the Hospital that he gained senses, and told the appellant Balu to be armed with Lakdi (lathi) and Bheru with Kulhadi (axe ). In that view of the matter, it cannot be accepted that at 11 AM, Laxman would have given this detailed statement as Ex. In that view of the matter, it cannot be accepted that at 11 AM, Laxman would have given this detailed statement as Ex. P/2 purports to be. Similarly, according to this witness, after the victim had fallen down, Badri and Prabhu ran away to the village and it was Amra and Fatta who scared away the assailant, while as found above, Amra and Fatta has reached the place of incident after the accused persons had already left the place. Then, Ex. P/2 does not contain any averment about Laxman having narrated the incident to Amra and Fatta as deposed by Fatta PW-11. In this very sequence, it is significant to note that this FIR has been received by the Magistrate as late as on 29-11-1995 at 3. 10 PM. 27-11-1995 is Monday, and no satisfactory explanation is forthcoming from the side of the prosecution as to how all this time was consumed, inasmuch as, all that has been explained by the 1. 0. PW-22 is that he cannot explain any reason for the delay as it is for the Munshi to explain, and no such Munshi has been examined. In this view of the matter, this document Ex. P/2 cannot be taken to be as sacrosanct as is desired by the prosecution. 1. 0. was rather clearly suggested that all papers were subsequently prepared and day and time were put arbitrarily as may have suited the convenience, and therefore, it was in this process that in the site inspection note, Ex. P/4, the time was not mentioned and the column remained blank. Of course, the 1. 0. had denied the suggestion, but then, the fact remains that in Ex. P/4, the column is blank. Thus, in the totality of circumstances, I am not inclined to rely upon Ex. P/2 also as a version of victim Laxman, for the purpose and in the manner intended by the prosecution. ( 22 ) THE obvious consequence of the whole discussion is that none of the witnesses or the material produced by the prosecution to make the court believe it to be a case resting on ocular evidence, is either ocular evidence or inspires any confidence. ( 23 ) THE submission of the learned Public Prosecutor in this regard about the contradictions appearing in the evidence being normal, natural and insignificant, cannot be accepted in view of the detailed discussions made above. ( 23 ) THE submission of the learned Public Prosecutor in this regard about the contradictions appearing in the evidence being normal, natural and insignificant, cannot be accepted in view of the detailed discussions made above. ( 24 ) THEN coming to the question of other circumstances produced on record to connect the appellants with the alleged crime, suffice it to say that a look at the Forensic Science Laboratory Report, shows that the lathi has not been found to be stained with blood, the axe has not been found to be stained with blood of the deceased, and so far as the clothes of the accused persons are concerned, are also not shown to be stained with the blood of victims. In that view of the matter, the recoveries also do not even safely connect the accused persons with the crime, muchless can they be said to be sufficient to hold them guilty, when the basic evidence of the eyewitnesses has not been accepted. ( 25 ) THUS, on a close appreciation of the entire evidence, rather entire material available on record, in our view, the prosecution has not succeeded in bringing home the guilt to the accused persons, and the learned trial court has not rightly appreciated the evidence of the aforesaid witnesses while holding them to be reliable and/or eyewitnesses. ( 26 ) CONSEQUENTLY, the appeal is allowed, the impugned judgment is set aside, the appellants are acquitted of all the charges, they be released forthwith if not required in any other case. The material exhibits be disposed of in accordance with law i. e. destruction! sale. Appeal allowed.