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2005 DIGILAW 2048 (RAJ)

Raju alias Rajaram v. State of Rajasthan

2005-08-04

B.PRASAD, GOPAL KRISHAN VYAS

body2005
Judgment B. Prasad, J.-These two appeals have been filed by the two accused appellants against the decision of the learned Additional Sessions Judge, Fast Track, Anoopgarh against their conviction under Section 302, IPC and sentence of life and a fine or Rs. 1,000/-being awarded against them in Sessions Case No. 20/2002 dated 12th November, 2002. 2. The prosecution was initiated on the basis of a First Information Report lodged by one complainant Shivlal, Exhibit P/15 on 15.04.2001. According to the report on 14.04.2001 about 7.00 p.m., Mahendra, brother of the complainant Shivlal, came to him. His brother Mahendra was accompanied by Raju and Moduram. All the three persons had drunk liquor. They stayed for half an hour. After that all the three went together saying that they will have more liquor. When until late in the night, brother of the complainant, Mahendra, did not return the complainant went at about 2-3.00 a.m. to the Dhani of Raju. He saw that Mahendra was being belaboured by the two accused appellants. The complainant then alleges that he shouted from a distance as to why are they giving beating. The accused told him that if he would come he would also be dealt with similarly. He came back, being frightened, and slept at his own house. At about 6.00 a.m. in the morning PW. 6 Jagdish Pandit came and informed him that sometime before, Raju, accused came to him and called him to his Dhani. Moduram was also there. Both of them informed him that during the night they consumed liquor. They had a quarrel with Mahendra and Mahendra had died and his dead body is lying outside. This information was communicated by Jagdish Pandit to the complainant who then informed the police. The police registered FIR No. 56/2001. On the basis of Exhibit P/15, a written report, a formal FIR was recorded which is Exhibit P/29. After investigation, the charge-sheet was filed which came up for trial before the trial Judge. 3. At the trial, the prosecution examined 12 witnesses and produced 43 documents. Accused were examined under Section 313, CrPC, and four documents were exhibited in defence. 4. The trial Court, believed the testimony of PW. After investigation, the charge-sheet was filed which came up for trial before the trial Judge. 3. At the trial, the prosecution examined 12 witnesses and produced 43 documents. Accused were examined under Section 313, CrPC, and four documents were exhibited in defence. 4. The trial Court, believed the testimony of PW. 5 Shivlal, complainant, that he had seen the accused and the deceased together and then in the night, he had gone to the place where the accused and the deceased were to take liquor and there he saw that the accused were giving beating to the deceased. He exhorted, on which he was threatened. On the testimony of Shivlal, implicit reliance has been placed by the learned trial Judge and conviction has been recorded. The circumstantial evidence of recovery has not been pressed into service because there was no sufficient material to link the accused with the crime. 5. The learned Counsel appearing the accused submitted that PW. 5 Shivlal who has been relied on by the trial Court is not a witness worth relying. If his statement is taken on its face value he alleges that at about 2-3.00 a.m. in the morning, when his brother had not come home, he had gone to the Dhani of Raju, where, from 15-20 panvdas he saw that the two accused were inflicting injuries to the deceased. Thereafter, he came home and slept. According to the learned Counsel, this kind of conduct is unbecoming of a brother and it cannot be expected that when a real brother is being belaboured in the dead of the night, real brother would not make an attempt to rescue his brother. 6. Further this witness, in his examination, states that at about 5-6.00 a.m. in the morning Jagdish Pandit, PW. 6 came and informed him that Raju came to him and took him to his Dhani. There Moduram was also there. They informed him that they gave beating to Mahendra who has died. Jagdish Pandit then went to the Dhani of Raju and saw that Mahendra was lying dead. Then this witness states that he informed the Police. According to the learned Counsel, the conduct of this witness is so unbecoming that it cannot be expected that he slept after seeing his brother being beaten up and did not react. Jagdish Pandit then went to the Dhani of Raju and saw that Mahendra was lying dead. Then this witness states that he informed the Police. According to the learned Counsel, the conduct of this witness is so unbecoming that it cannot be expected that he slept after seeing his brother being beaten up and did not react. His claim is that he was frightened and, therefore, came back and slept at his house and did not inform his brother or wife who were at home and, therefore, he is an unnatural witness. 7. Further, the case set up by this witness is not supported by medical evidence because according to this witness all the three persons, i.e., the two accused and the deceased were drunk. Medical evidence is positive on the point that no traces of alcohol were found in the abdomen of the deceased. Therefore, the above story given by him is not probable. This witness was positive on the point that he has not informed his wife or brother. But these two witnesses, PW. 11 Bhaguram and PW. 12 Smt. Sayara, says that PW. 5 Shivlal informed them about the beating. This contrary stand of PW. 5 Shivlal and the testimony of PW. 11 Bhaguram shows that the prosecution is trying to make up the deficiency in the prosecution case. The learned Counsel then submitted that PW. 5 Shivlal is a witness who deserves to be discarded in its entirety. PW. 6 Jagdish Pandit is not a witness of any consequence because be says that the accused have not informed him as to how Mahendra die. 8. Except PW. 5 Shivlal, PW. 6 Jagdish Pandit, PW. 11 Bhaguram and PW. 12 Smt. Sayara all the witnesses do not speak about the facts of the case. There is no circumstantial evidence to link the accused. Thus, there is no evidence by virtue of which the learned trial Court could have convicted the accused and in this light, the learned trial Court has erred in convicting the accused appellant. 9. Per contra, the learned Public Prosecutor submitted that the trial Court has rightly appreciated the evidence on record. The accused was in the company of the deceased. The deceased has been found dead at the Dhani of Raju and, therefore, the conviction has been rightly recorded. 10. 9. Per contra, the learned Public Prosecutor submitted that the trial Court has rightly appreciated the evidence on record. The accused was in the company of the deceased. The deceased has been found dead at the Dhani of Raju and, therefore, the conviction has been rightly recorded. 10. We have perused the record and have given our thoughtful consideration to the prosecution case. 11. The trial Court has charged the accused under Section 302 simplicitor. The deceased had died due to the injuries sustained by the deceased. Each of the injury was inflicted by which accused, and who was responsible for causing death is not clear from the record. Thus, it is not clear as to which out of the two accused persons could be held responsible for causing the fatal injury. In this view of the matter, the charge of Section 302, IPC simplicitor cannot be said to be made out. 12. The trial Court has placed reliance on the testimony of PW . 5 Shivlal who is not a witness, who inspires confidence for more than one reason. His first case is that he saw the accused and the deceased drunk. Medical evidence states that deceased had no traces of alcohol. Thus, it cannot be said that the case as set up by the witness that the deceased had consumed alcohol was a truthful proposition. Further, if the deceased was not under intoxication when the accused and the deceased are alleged to have met this witness at about 7.00 p.m. in the evening then their cause of going together is also unconvincing because the reason for going together was consumption of liquor. These circumstances also go against the truthfulness of this witness. 13. This witness further claims that in the dead of the night he had gone to the Dhani of Raju. There he saw the accused inflicting injuries to the deceased. He is alleged to have seen the incident from a distance of about 20 panvdas which is around 100 ft. In the dead of the night it was not possible to observe in fact whether all the three persons were there. Therefore, the claim of this witness that he saw the accused causing injuries to the deceased is not trustworthy. 14. Further he states that then he went home and slept and PW . 11 Bhaguram and PW . 12 Smt. Sayara states that PW . Therefore, the claim of this witness that he saw the accused causing injuries to the deceased is not trustworthy. 14. Further he states that then he went home and slept and PW . 11 Bhaguram and PW . 12 Smt. Sayara states that PW . 5 Shivlal informed them about the incident. The situation is very complex. When these persons had known that a member of the family is being belaboured, in the night and they did not react is unacceptable and the claim of Shivlal PW . 5 that he had gone in the night is not a sustainable claim. If Shivlal had not gone in the night then it is not possible to place reliance on the statement given by him that he came and slept without reacting or informing family members. If his statement is not believed then testimony of PW . 11 Bhaguram and PW . 12 Smt. Sayara is also not liable to be accepted for any purpose. Because they are only witnesses of hearsay. 15. PW. 6 Jagdish Pandit speaks nothing. The circumstantial evidence, in the form of recoveries of articles and report of Forensic Science Laboratory, is of no consequence as it does not link the accused with the crime. In these circumstances, what remains to be noticed is that the dead body was found in front of the house of Raju. But this circumstances is two weak to place the liability of the offence under Section 302, IPC singularly. In view of the aforesaid, we are persuaded that the accused are entitled to the benefit of doubt. 10.16. In the result, the appeal of both the accused appellants, Raju alias Rajaram s/o Narayan Ram, Modu Ram s/o Shri Nathu Ram deserves to be allowed. Their conviction under Section 302, IPC, as awarded by the trial Court, deserves to be set aside. Consequently, their sentences are also set aside. They are said to be behind the bars. They should be released forthwith if not required in any other case.