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2004 DIGILAW 835 (RAJ)

Lekha Ram v. State of Rajasthan

2004-05-25

O.P.BISHNOI, RAJESH BALIA

body2004
JUDGMENT 1. - This appeal has been filed by the accused Lekha Ram against a judgment dated 18.3.2000 by the learned Additional Sessions Judge, Barmer whereby the appellant has been found guilty for an offence punishable under Section 302 of the Indian Penal Code Life imprisonment and a fine of Rs. 1000/- has been awarded. Rigorous Imprisonment for three months has been ordered in lieu of fine. 2. On 11.8.1998 at 7. 00 A. M., PW/6 Bhanwara Ram S/o Kherajram Meghwal, resident of Village Bayatu reached the Police Station, Bayatu and lodged a written FIR Ex. P/10 before the SHO. According to the FIR, the accused Lekhram was the brother of PW/6 Bhanwara Ram. At about 4. 00 A. M. on that day Bhanwara Ram heard the cries of children emanating from the `Dhani' of the accused. Bhanwara Ram rushed to the house of the accused and found that the wife of the accused was lying dead. Further it was stated that the accused had murdered his wife Smt. Nainu by inflicting injury to her head by a `hammer'. On further enquiry by the SHO the lodger of the FIR PW/6 Bhanwara Ram disclosed that when he reached the house of the appellant, the appellant was found standing with a `hammer' in his hand and the daughter of the appellant PW/2 Sunita @ Suki disclosed to Bhanwara Ram that it was the appellant Leklia Ram, who had murdered Smt. Nainu by inflicting the injuries from the `hammer'. The motive forthe crime according to Bhanwara Ram was that the appellant suspected that the deceased was having some extra-marital affair. A case under Section 302 of the Indian Penal Code was registered and after investigation, the appellant was put to trial for the said offence. The accused pleaded not guilty of the charge. Seventeen witnesses were examined by the prosecution. None was examined in defence and in his statement recorded under Section 313 Criminal Procedure Code the accused denied that he was present in village Bayatu at the relevant time. According to him, he was in village Sewau at the relevant time from where he was picked up by the police. The learned trial court then heard the arguments and delivered the judgment on 18.3.2000 as stated supra. 3. According to him, he was in village Sewau at the relevant time from where he was picked up by the police. The learned trial court then heard the arguments and delivered the judgment on 18.3.2000 as stated supra. 3. We have heard the learned Amicus Curiae for the appellant and the learned Public Prosecutor for the State and have gone through the record of the trial Court. We find that the conclusions drawn by the learned trial court against the appellant are unsustainable and the appeal deserves to be allowed. 4. According to the prosecution story, the three kids of the deceased were the eye-witnesses of the occurrence and PW/1 Kheraj (father of the accused), PW/6 Bhanwara Ram (brother of the accused) and P W/3 Thakara Ram, a neighbour, reached the place of occurrence after the incident and they found the appellant standing near the dead-body with a `hammer' in his hand. According to the prosecution story, the three were further informed by PW/2 Sunita that it was her father, who had murdered her mother. However, none of the six said witnesses have supported the prosecution version and all the six have been declared hostile witnesses. 5. PW/2 Kumari Sunita is a 13 years old daughter of the deceased. In her examination-in-chief, she stated that during the night preceding the incident, her father (the appellant) was at the resident and in the morning she found her mother dead. However, she did not corroborate the version that she saw the appellant inflicting the injuries to her mother and was declared hostile. Thereafter in answer to the leading questions by Addl. Public Prosecutor she stated that the statement Ex. P/2 was got recorded by her to the police. However, she stated that she was very much afraid by the police and out of fear she stated the incriminating part of the statement to the police. She further stated that she did not see the accused inflicting any injuries to her mother.During cross-examination of behalf of the accused, she admitted that the accused was not at the residence at the relevant time as he was in another village `Sawau Padam Singh' in connection with his employment. She further admitted that in her examination-in-chief her deposition to the effect that her father was present in the house was not voluntary but was recorded out of fear. 6. She further admitted that in her examination-in-chief her deposition to the effect that her father was present in the house was not voluntary but was recorded out of fear. 6. PW/4 Bharta is 10 years old son of the deceased. In his examination-in-chief, he stated that the appellant was present in the house during the previous evening but in the morning, he was not there. He has stated that in the morning when he was to go to school, he found his mother dead with injuries on her head. He was declared hostile and in answer to leading questions he stated that the incriminating part of the statement Ex. P/8 recorded under Section 161 of the Criminal Procedure Code was recorded by him which was true. However, during cross-examination on behalf of the accused, the witness stated that the incriminating part of the statement Ex. P/8 was not voluntary and was recorded under fear. He further stated that his father was employed in the water-works department and was not present in the house and was present at the place of his posting. 7. PW/5 Kishna is 8 years old son of the deceased. In his examination-in-chief, he stated that the appellant was not in the house and he was at village Sawau. After he was declared hostile, in answer to leading questions, he admitted that the incriminating part of the statement Ex. P/9 was recorded by him wherein he had stated that the appellant inflicted injuries to the deceased. However, during cross-examination by the accused, the witness admitted that actually he did not see anybody causing injuries to her mother. He further stated that since 15-20 days prior to the incident his father (the appellant) was away in village Sawau and thereafter, he was brought to village `Bayatu' by the police after the murder. For the statement Ex. P/9, the witness stated that the incriminating part of the statement was not voluntary but was recorded by him under the fear of the police. 8. In this way, we find that none of the three alleged eye-witnesses had withstood the cross-examination and admitted that so far as the appellant is concerned, he was not present in the house at the relevant time as he was away in village `Sawau' where he was posted as a Government servant. 8. In this way, we find that none of the three alleged eye-witnesses had withstood the cross-examination and admitted that so far as the appellant is concerned, he was not present in the house at the relevant time as he was away in village `Sawau' where he was posted as a Government servant. The three witnesses have further denied the suggestion that they saw the appellant inflicted injuries to the deceased. The learned trial court has believed the witnesses in respect of whatever they started in response to the questions and suggestions made by the learned Addl. Public Prosecutor but disbelieved that part of the statement which was recorded during cross-examination on behalf of the accused. Needless to say that this approach on the part of the learned trial court is unacceptable. As pointed out earlier, all the witnesses could not support the prosecution story and were declared hostile. Thereafter, in answer to leading questions even if they admitted the suggestions put forwarded by the prosecution, the relevant deposition during cross-examination on behalf of the accused cannot be discarded a witness cannot be trusted unless he is able to with-stand the cross-examination on behalf of the accused. Even according to the prosecution, there three witnesses were not of sterling worth and all these three were declared hostile. 9. PW 1 Kheraj, PW/3 Thakara Ram and P/6 Bhanwara Ram were examined by the prosecution to prove that when thy reached the place of occurrence, they found the accused standing with a `hammer' in his hand near the dead-body and were informed by Sunita that it was the appellant, who had murdered the deceased. However, all the three have denied this aspect of the prosecution story. 10. PW/l Kheraj in his examination-in-chief makes a statement to the effect that in the morning when he reached the place of occurrence, the appellant was found sitting inside the hut. However, during cross-examination by the accused he made it clear that neither in the morning nor in the previous evening he saw the appellant in his house. Regarding the said deposition in his examination-in-chief he explained that as he could not understand the question, hence, the admission that the appellant was present in the house. 11. PW/3 Thakara Ram does not say that the appellant was seen by him when he reached the place of occurrence. Regarding the said deposition in his examination-in-chief he explained that as he could not understand the question, hence, the admission that the appellant was present in the house. 11. PW/3 Thakara Ram does not say that the appellant was seen by him when he reached the place of occurrence. Nor does he say that the appellant was seen in his house on the previous evening. He has further stated that it was the police which had brought the appellant from village Sawau. 12. PW/6 Bhanwara Ram is the lodger of the FIR. He has stated that when he reached the house of the appellant, he found that PW/I Kheraj and PW/3 Thakara Ram were already there. He further stated that he never saw the appellant in the house. He has stated that he was informed by Kheraj and Thakara Ram about the murder of Smt. Naini and straight away he proceeded to the police station and lodged the FIR. He denied that the incriminating part of the FIR Ex. P/10 was dictated by him. He further denied that the appellant was seen present in the house. He further stated that when he reached the police station, the SHO directed him to get the report scribed by a person. According to the witness, the SHO instructed the scribe of the FIR to write the FIR in the manner suggested by the SHO. 13. In this way the deposition of P W/1 Kheraj, P/3 Thakara Ram and P/6 Bhanwara Ram is also of no consequence to the prosecution and we find that there is no acceptable evidence to draw a conclusion to the effect that the appellant was present in the house on the evening of 10.8.1998 nor there is any evidence to suggest that he was seen inflicted injuries to the deceased by the `hammer'. According to the FIR Ex. P/10 the sole motive for the accused to murder his wife was that he doubted her fidelity. However, no witness has corroborated the prosecution story in respect of the alleged motive. 14. It is not in dispute that the accused was employed during the relevant time and was posted in the water-works department in village `Sawau Padam Singh'. P/10 the sole motive for the accused to murder his wife was that he doubted her fidelity. However, no witness has corroborated the prosecution story in respect of the alleged motive. 14. It is not in dispute that the accused was employed during the relevant time and was posted in the water-works department in village `Sawau Padam Singh'. In these circumstances, it was incumbent upon the Investigating Officer to investigate and find out as to whether the appellant was not present at the place of his posting and had gone elsewhere at the relevant time. However, no investigation in this direction was carried out. 15. The learned Public Prosecutor has argued that the weapon of offence the `hammer' was got recovered at the instance of the accused by the police and as per the FSL report Ex. P/25 it contained human blood on it. We find that the said contention is of no consequence and the accused cannot be connected with the crime in the light of the evidence which has come on record. The alleged recovery of the 'hammer' according the prosecution story was made in the presence of two independent witnesses PW/12 Kumbha Ram and P/13 Ram Lal. However, both denied that any such recovery was effected in their presence. Both have been declared hostile. Moreover, the `hammer' has been recovered from an open place which was accessible to all and it cannot be said that the recovery was made from the exclusive possession of the accused. Apart from this, we find that the FSL report Ex. P/25 was not tendered in evidence by any witness and the exhibit number has been marked by the learned trial Judge `suo-moto'. In these circumstances, a finding of guilt cannot be recorded on the basis of the alleged recovery against the appellant in such a serious case: 16. In the result, the appeal is allowed. The impugned judgment dated 18.3.2000 is set aside. The appellant is acquitted of the charge. He shall be released forthwith if not needed in connection with any other case.Appeal allowed. *******