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2005 DIGILAW 1494 (RAJ)

Heera v. State of Rajasthan

2005-05-18

S.P.PATHAK

body2005
Judgment 1. The present appeal is filed by the two accused persons Heera and Shankar lal being convicted by the Judgment of the Court of Additional Sessions Judge No. 1, Chittorgarh in Sessions Case No. 51/99 dated 28.08.2001. 2. The prosecution was initiated on the basis of the first information report lodged on 30.04.1999 by Gordhan Bheel at Police Station Kapasan. According to the facts stated in the first information report, there was a Prasadi at the house of Ratna Bheel, the complainant and his brother Devkishan, Bhuvana, Bhagwana and Sobha had gone there for taking meals. While they were sitting to take their meals, at that time, the accused Heera, Shankar and acquitted accused Madhu, Chhitar, Bhagwana and Sohan Bheel, not an accused alongwith others were taking liquor. the bottle of liquor was placed near accused Heera and Shankar. There was an axe also lying there. No sooner, Heera saw Devkishan, he got angry and inflicted a blow by the bottle on the neck of Devkishan. The other accused persons namely, Shankar, Madhu, Chhitar, Bhagwana and Sohan who has not been prosecuted also started beating Dev Kishan. It was alleged that Heera also inflicted an axe blow on the person of Dev Kishan. He alongwith his associates, intervened and got Dev Kishan freed. A cloth was tied to the neck of Dev Kishan to stop bleeding. Dev Kishan was carried to Kapasan Hospital on cot but he succumbed to his injured on the cot. 3. On the basis of such allegations, F.I.R. came to be filed. After usual investigation, charge-sheet was filed and the accused Heera was charged under Sections 147, 148, 323 or 323/149, 324/149, 341, 302, IPC and other accused were charged under Sections 147, 148, 323 or 323/149, 324 or 324/149, 341 and 302 or 302/149, IPC. 4. The accused denied the charges and claimed trial. At the trial the prosecution examined 27 witnesses and tendered 43 documents in evidence. The accused were examined under Section 313 CrPC, and claimed that they were not present on the scene of occurrence. They have stated that they have heard that Dev Kishan and his relatives were drinking liquor. They entered into quarrel with Heera. The bottle having been damaged, Dev Kishan fell on the bottle and sustained injuries. Three defence witnesses were examined in support of defence and two documents were produced in evidence. They have stated that they have heard that Dev Kishan and his relatives were drinking liquor. They entered into quarrel with Heera. The bottle having been damaged, Dev Kishan fell on the bottle and sustained injuries. Three defence witnesses were examined in support of defence and two documents were produced in evidence. The trial Court after considering the case of the prosecution and examining the statement of the witnesses and record o the case, came to the conclusion that the death of the deceased Dev Kishan was homicidal. The trial Court also came to the conclusion that the prosecution has failed to establish that the accused Madhu, Bhagwana and Chhitar were responsible for causing any injury to the deceased and, therefore , acquitted these accused persons of the offences alleged against them. 5. The trial court considering the evidence of the witnesses came to the conclusion that Heera inflicted injuries by bottle and Shankar inflicted injuries by axe. Testimony of PW. 5 Bhuwana that earlier Heera who had the axe inflicted the blow by axe and thereafter Shankar gave blow by broken bottle was believed. The trial Court rejected the defence of the accused person that it was in a quarrel in between the associates of the deceased which resulted into his death. The defence witness DW. 1 Pema Bheel, DW/2 Chhoga Bheel and DW/3 Narayan Gameti have in their cross-examination deviated from their versions in chief , therefore, the defence version has not been believed. 6. Three accused persons were acquitted by the trial Court, offences under Sections 147, 148 with the aid of 149, IPC were not held proved. Believing the testimony of PW/8 Kali, PW/5 Bhuwana, PW. 7 Balu and PW. 9 Gordhan, the trial Court came to the conclusion that deceased Dev Kishan was hit by Heera with axe and Shankar by bottle. It was also held that these accused persons were sharing common intention. Instead of convicting them of the charges of offence under Section 302/149, IPC, which was the framed charge, converted the same under Section 302/34, IPC and held them guilty of same. It was further held that by altering the charge of 302 read with 149, IPC to charge under Section 302 read with 34, IPC, no prejudice has been caused. Trial Court convicted both the accused appellants with aid of Section 34, IPC for causing simple injury to Bhagwana. It was further held that by altering the charge of 302 read with 149, IPC to charge under Section 302 read with 34, IPC, no prejudice has been caused. Trial Court convicted both the accused appellants with aid of Section 34, IPC for causing simple injury to Bhagwana. The accused have also been convicted under Sections 323 and 324 IPC along with Section 302/34, IPC. The details of the conviction and sentence of the accused is given below : Accused appellant Heera :- Offence Sentence Section 302/34, IPC Section 323, IPC Life imprisonment and a fine of Rs. 2,000/-and in default of payment of fine, six months S.I. Six months S.I. Accused appellant Shanker:-Offence Sentence Section 302/34, IPC Section 324, IPC Imprisonment for life and fine of Rs. 2,000/-and in default of payment of fine, six months S.I. One years S.I. 7. Being aggrieved by these findings, the present appeal has been filed by the accused. It has been argued on behalf of the accused appellant that case as set up in the first information report is to the extent that while the complainant party and the accused party were taking liquor, at that time Heera first struck the bottle on ground and then hit Dev Kishan on neck. The other accused person also joined him and at that time, Heera also wanted to hit the deceased by axe. At that time, the witnesses intervened and rescued Dev Kishan. In this process, Shankar hit the first informant Gordhan on his head and Bhagwana was also hit. Thus, according to the allegations in the first information report, first of all Shankar hit the deceased by the broken bottle. 8. As regards participation of Heera is concerned, it is argued by defence said that after Shankar had hit by the bottle, Heera tried to hit by axe. There is no positive mention in the first information report that Heera has in fact caused any injury by axe. In the background of the facts given in the first information report, if we see the testimony of the eye-witnesses, we find that statement of Dr. Bhupesh Partani, PW/1 only speaks of three lacerated injuries to the deceased. None of the injuries sustained by the deceased were deposed by doctor to be by any sharp edged weapon. In the background of the facts given in the first information report, if we see the testimony of the eye-witnesses, we find that statement of Dr. Bhupesh Partani, PW/1 only speaks of three lacerated injuries to the deceased. None of the injuries sustained by the deceased were deposed by doctor to be by any sharp edged weapon. No attempt has been made by the prosecution to get it established that any injuries inflicted could be designated to have been caused by the axe blow. Thus, from the medical evidence, the only inference which can be drawn is that the deceased has sustained injuries by the weapon which could be in the nature of broken bottle. 9. It has further been argued that PW/2 has not supported the prosecution. PW/3 is a formal witness who has got the site plan prepared. PW/4 is also a formal witness. PW/5 Bhuwana is the most important witness. He has in his Court statement stated that while the deceased and the accused were sitting. Heera had an axe in his hand and he inflicted the axe blow on Dev Kishan. Shankar was having a bottle in his hand and from the broken bottle, he hit his neck. This witness in his cross-examination has admitted that he has not given the police statement Ex.D/1 to the police. Learned Counsel for the defence has urged that once the witness admits that the statement given to the police was not a statement given by him, then the whole statement has to be considered to be an omission. He has stated in his statement that police examined him but he has dis-owned Ex.D/1 and there is no other statement of this witness on record, therefore, this witness has no legs to stand because he is a witness who has not accepted his police statement as given i.e. Ex.D1. No other statement is coming forward, then it will be deemed that this witness was not examined by police. If the witness was not examined by the police, he cannot be relied. 10. PW/6 is a formal witness. PW. 7 Balu Bheel is another witness who states that when he heard the cries, he went inside and he saw that the deceased has been cut by axe and a bottle has been inserted. He does not assign any injury to any of the accused person. PW. 10. PW/6 is a formal witness. PW. 7 Balu Bheel is another witness who states that when he heard the cries, he went inside and he saw that the deceased has been cut by axe and a bottle has been inserted. He does not assign any injury to any of the accused person. PW. 8 Smt. Kali W/o deceased Dev Kishan has turned hostile and she has named none other but Heera and Shankar only and in her statement, she has stated that she has seen Heera hitting by axe and Shankar by bottle but in her police statement Ex.P/9 Heera is alleged to have used bottle and there is no allegation that Heera gave axe blow before Shankar gave an axe blow. There is only omnibus allegation. Therefore, statement of this witness does not fit with the narration given by other witnesses and therefore, she was declared hostile. 11. PW. 9 is another witness who is the first informant has stated that Heera inflicted axe blow on Dev Kishan and thereafter Shankar inflicted injuries by the broken bottle. In the police version, he has not given such statement that Heera gave axe blow and Shankar intervened. According to medical evidence, there is no cut injury on the neck of the deceased. Thus, learned Counsel for the accused urged that this witness has also not supported the prosecution case as set up by himself in the first information report. Therefore, this witness is not reliable. PW. 10 has turn hostile to the prosecution and he speaks nothing to corroborate the incident. PW. 11 so also PW. 12, PW. 13, PW. 14, PW. 15, PW. 16, PW. 17, PW. 18, PW. 19 have turned hostile. PW. 20, PW. 21, PW. 22 are the witnesses who speaks of the details of the investigation PW. 23 is also a witness who is a false witness. PW. 24 has turned hostile. PW. 25 is the investigating officer who has spoken about the details of the investigation. PW/26 and PW. 27 are police witnesses and have only spoken about the stages of investigation. Therefore, the learned Counsel for the appellants claims that evidence whatever has been produced is not sufficient to sustain the conviction of the accused person. No FSL report connecting the recoveries made from the scene of occurrence or otherwise have been produced, therefore, there is no corroborative evidence available on record. 12. Therefore, the learned Counsel for the appellants claims that evidence whatever has been produced is not sufficient to sustain the conviction of the accused person. No FSL report connecting the recoveries made from the scene of occurrence or otherwise have been produced, therefore, there is no corroborative evidence available on record. 12. Per Contra, learned Public Prosecutor has submitted that there is testimony of eye-witness supported by other witnesses who has seen the occurrence. Therefore, there is ample evidence to sustain the conviction. There are eye-witnesses. Eye-witnesses have given correct account of the incident. In this background, the defence version cannot be accepted. 13. We have given our thoughtful consideration and have perused the record. The most important aspect of the case is the medical opinion. According to the doctor, there were three lacerated wounds and in all of them, doctor has found broken glass pieces. The prosecution in its first version in the first information report, which is relevant under Section 8 of the Indian Evidence Act being res geste, has not stated that there was any injury caused to the deceased by axe. The version given in the first information report only speaks of infliction of injury by a broken bottle. 14. The case of the prosecution wherein, the axe blow has been stated to have been inflicted only signifies that prosecution has tried to improve the case which it has not already set up. The medical report is not in consonance with the causing of injury by axe. There are no injuries available on the person of the deceased showing axe infliction. No attempt has been made on behalf of the prosecution to clarify the position as to whether any of the injuries sustained by the deceased had the character of being a sharp edged injury. Thus, there is an inherent weakness in the prosecution case about the manner of occurrence. 15. The witnesses in their statement in Court have stated that the first injury was inflicted by accused Heera with an axe and thereafter Shankar gave blow by broken bottle whereas, in the first information report, the first injury has been assigned to Heera by broken bottle. It has been subsequently altered to an axe blow and a subsequent blow by broken bottle has been assigned to Shankar. It has been subsequently altered to an axe blow and a subsequent blow by broken bottle has been assigned to Shankar. This is a deviation in story and such deviation has the character of knocking down the substratum of prosecution story. If the prosecution witnesses take liberty of altering the substratum of the prosecution story as given in the first information report while giving their statement in Court, then we have to closely examine whether the prosecution as established is trustworthy or not. In the instant case, the injury assigned to Heera by axe is found missing by medical evidence. This has been not stated in the first information report as well. Thus, a fact which does not find mention in the first information report and is not supported by medical evidence, cannot be believed. Participation of Heera by infliction of injury by axe, therefore, becomes doubtful proposition. When the participation of Heera becomes doubtful, then he deserves the benefit of doubt because there is pre-varication in the story of prosecution as far as his participation is concerned. 16. Now we are left with the case of Shankar. In the first information report, the injury by bottle was assigned to Heera and in Court statement, bottle injury has been assigned to Shankar. This is not a minor detail but it is a significant departure from the basic case of the prosecution. If the part played by Shankar is altered to the extent noticed by us, then we are left with no option than to doubt whether at all Shankar was the person involved in inflicting blow as stated by the prosecution witnesses. When there is a doubt about participation of this witness also, then doubt looms large on the whole prosecution case and, therefore, basic case of the prosecution being not trustworthy, the conviction based on evidence adduced in respect of such a case is not liable to be sustained and this accused is also entitled to benefit of doubt. 17. Having considered the facts of the case and considering the arguments of the learned Counsel for the parties, we are of the opinion that an entirely new case has been put forward by the prosecution witnesses at the trial than the one which was set in the first version. 17. Having considered the facts of the case and considering the arguments of the learned Counsel for the parties, we are of the opinion that an entirely new case has been put forward by the prosecution witnesses at the trial than the one which was set in the first version. It is not permissible to make out an entirely different case that the one which was set up by the prosecution in the first information report. That being the position, the accused are entitled to benefit of doubt. The trial Court has already acquitted three of the five named accused. That being the position, the remaining accused persons also deserve the same treatment There being no convincing evidence available on record, we are constrained to observe that it is not possible to sustain the conviction of the accused as ordered by the trial Court. The conviction is required to be set aside. Consequently, the sentences are also set aside. The accused are behind the bars. They be released forthwith if not required in any other case.