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2013 DIGILAW 429 (RAJ)

State of Rajasthan v. Sher Singh

2013-02-20

DINESH MAHESHWARI, VIJAY BISHNOI

body2013
JUDGMENT 1. - This appeal is directed against the judgment and order dated 18.8.86 passed by Addl. District & Sessions Judge, Nagaur in Sessions Case No. 29/84 whereby the learned trial court acquitted the accused-respondents from the charges punishable for offence under Sections 148, 302 read with Section 149 I.P.C. while giving benefit of doubt. 2. The brief facts of the case are that on 28.4.1983 at about 8:35 AM, Sukhdev Singh (PW 15), the S.H.O., Police Station Khunkhuna received a telephonic message from the Post Master Tej Singh of Village Toshina wherein Tej Singh, Post Master has informed that one Hema Ram has given him information that his brother Prabhu Ram has been murdered and his dead body is lying near Athuna Bera of village Thebri. On receiving this information, Sukhdev Singh (PW 15), the S.H.O., Police Station Khunkhuna put a report to this effect in the daily diary (Rojnamcha) Exhibit D/10 and sent some police personnels at the spot of village Thebri and he himself proceeded to Deedwana to give information to the higher official about the incident. When Sukhdev (PW 15) reached at the spot at village Thebri, some 70 to 80 persons were gathered on the spot and asked him that they will not allow to do any proceeding till Hema Ram, brother of the deceased Prabhu Ram will not come. At about 4:30 PM, Hema Ram reached at the spot and submitted a written report to the effect that yesterday i.e. on 27.4.1983 at about 7:30 PM Devender S/o Roop Singh, Bhanwar Singh S/o Sugan Singh, Sher Singh S/o Mool Singh and Pappu S/o Mool Singh residents of village Thebri have murdered his brother. It is also stated in the report that these five persons have killed his brother when Rang Lal S/o Shiv Lal, Gumana Ram S/o Shiv Lal, Bheru Ram S/o Ramu Lal and Nunda Ram S/o Dunga Ram were going with his brother to see him off to his Dhani. It is stated that 5 persons namely Devenera Singh, Roop Singh, Bhanwar Singh, Sher Singn and Pappu have attacked on Prabhu Ram in the way and killed him and four Bawaries, who tried to save Prabhu Ram were assaulted. 3. It is stated that 5 persons namely Devenera Singh, Roop Singh, Bhanwar Singh, Sher Singn and Pappu have attacked on Prabhu Ram in the way and killed him and four Bawaries, who tried to save Prabhu Ram were assaulted. 3. On receiving the handwritten report Exhibit P/17 at the spot from Hema Ram, the S.H.O. Police Station Khunkhuna, Sukhdev Singh (PW 15) after reaching at the Police Station, lodged an FIR No. 22/1983 (Exhibit 19) against the accused-respondents and one Devendera Singh for the offence under Section 302 I.P.C. It appears that on 29.4.1983, investigation was transferred to Karan Raj (PW 18) holding the charge of C.O. Deedwana and thereafter he has investigated the case and ultimately the police filed a charge sheet against the accused-respondents for the offence under Section 148, 302/149 I.P.C. However, since one accused Devendra Singh could not be arrested, challan under Section 299 Cr.P.C. was filed against him. The matter was committed to the Additional Sessions Judge, Nagaur and the learned trial court framed charges against the accused-respondents for the offence punishable under Sections 148, 302 read with Section 149 I.P.C. The accused-respondents denied the charges and claimed trial. 4. During the course of trial, the prosecution got examined as many as 18 witnesses and also got exhibited 26 documents and also produced three articles. The statements of the accused-respondents were recorded under Section 313 Cr.P.C. and 3 witnesses were produced in defence and 17 documents were also produced in defence. 5. Learned trial court after conclusion of the trial, vide order dated 18.8.1986, acquitted all the accused-respondents from the charges for the offence punishable under Sections 148, 302 read with Section 149. 6. Being aggrieved with the aforesaid order dated 18.8.1986, the State has preferred this appeal. 7. It is submitted by the counsel for the accused-respondents, Mr. Dunger Singh that one of the accused Devender Singh was later on apprehended and put to trial for committing murder of deceased Prabhu Ram on 27.4.1983 and the Additional Sessions Judge Nagaur, Camp Deedwana vide his judgment dated 25.9.1990 passed in Sessions Case No. 24/1987 has acquitted Devendra Singh for the offence under Section 148, 302/34 I.P.C. and no appeal against the said judgment dated 25.9.1990 has been preferred by the State. Learned Public Prosecutor has not disputed the above facts. 8. Learned Public Prosecutor has not disputed the above facts. 8. Learned Public Prosecutor assailed the judgment dated 18.8.1986 and has claimed that the learned trial court has committed gross illegality in acquitting the accused-respondents from the charge of committing murder of deceased Prabhu Ram. It is contended by learned Public Prosecutor that the learned trial court has committed an error in not placing reliance over the statements of eye-witnesses namely Gumana Ram (PW 1), Nunda Ram (PW 2), Bheru Ram (PW 3) and Rang Lal (PW 4) and also erred in disbelieving the statements of PW 5 Ramu Ram, PW 6 Chhoga Ram, PW 13 Dunga Ram and PW 14 Hema Ram. It is further contended by the learned Public Prosecutor that the prosecution has sufficiently proved the guilt of the accused-respondents by producing evidence of eye witnesses and other corroborating evidence which indicate that on 27.4.1983 at about 7 PM, the accused-respondents along with Devendra Singh had committed murder of Prabhu Ram by assaulting him with the aid of lathies. 9. Learned Public Prosecutor has claimed that the recovery of the lathies at the instances of accused-respondents is proved and it is also proved that the deceased has received as many as 12 injuries on account of assault by the accused-respondents. The deceased Prabhu Ram died due to multiple injuries. 10. Learned Public Prosecutor has contended that the trial court has disbelieved the prosecution witnesses on the basis of surmises and conjectures and the evidence of eye witnesses has wrongly been disbelieved by the trial court. It is contended by the learned Public Prosecutor that the delay in lodging FIR cannot be said to be fatal as the S.H.O., PW-15 Sukh Dev Singh himself has recorded reasons in Exhibit D/11 for delay in lodging FIR. Learned Public Prosecutor, therefore, argued that from the evidence as well as the material available on record, it is clear that the accused-respondents along with Devendra Singh committed murder of Prabhu Ram in the evening of 27.4.1983 and the prosecution has placed enough evidence for the conviction of the accused-respondents for the offence for which they were charged and as such the judgment passed by the learned Additional Sessions Judge, Nagaur is liable to be quashed and set aside. 11. 11. Per contra, learned counsel for the accused-respondents Shri Dungar Singh argued that sufficient evidence is not available on record to prove the charge of murdering Prabhu Ram by the accused-respondents and, therefore, the learned Additional Sessions Judge, Nagaur has not committed any illegality in acquitting the accused-respondents for the offence punishable under Section 148, 302 read with Section 149 I.P.C. It is contended by learned counsel for the respondents that the evidence of eye witnesses namely Gumana Ram (PW 1), Nunda Ram (PW 2), Bheru Ram (PW 3), Rang Lal (PW 4) is not reliable as they have failed to give information to the police immediately after the alleged incident and on the next day when the S.H.O., Police Station Khukhuna reached the spot. It is stated that the conduct of the alleged eye witnesses of not informing the police about the names of accused-appellants despite being present on the spot when the police first reached at the spot is a fact sufficient to discard the evidence of the eye witnesses. It is further argued by the learned counsel for the respondents that the conduct of PW 14 Hema Ram is also highly doubtful and, therefore, the learned trial court has rightly disbelieved the evidence of PW 14 Hema Ram. 12. Learned counsel for the accused-respondents has stated that the prosecution has failed to prove beyond doubt that the accused-respondents have committed murder of Prabhu Ram in the evening of 27.4.1983 and, therefore, the learned trial court has rightly acquitted the accused-respondents while giving benefit of doubt for the offence punishable under Sections 148, 302 read with Section 149 I.P.C. 13. We have heard the arguments of both the parties. Now we have to examine whether trial court has committed any illegality in acquitting the accused-respondent from the charge of murdering deceased Prabhu Ram on 27.4.1983. 14. The learned trial court has disbelieved the evidence of eye-witnesses for the reason that the statements of eye-witnesses namely Gumana Ram (PW 1), Nunda Ram (PW 2), Bheru Ram (PW 3), Rang Lal (PW 4) were recorded by the police for the first time on 29.4.1983 in the evening though the eye-witnesses were very much present on the spot on 28.4.1983 when S.H.O. (PW 15) Sukhdev reached the spot for the first time. Learned trial court has also observed that the conduct of the eye-witness was unnatural as from their evidence, it is clear that though they have accompanied deceased Prabhu Ram to see him off to his Dhani but at the time of assault on Prabhu Ram they have not tried to save him and even after the alleged incident, they went to their house and has not informed at Prabhu Ram's house about the incident. Learned trial court has observed that there are great contradictions in the statements of eye-witnesses and they have tried to improve a lot in their court statements. It is specifically observed by the learned trial court that though Sukhdev Singh (PW 15) has specifically asked the four eye witnesses about the names of the persons, who have murdered Prabhu Ram but the eye witnesses namely (PW 1) Gumana Ram, (PW 2) Nunda Ram, (PW 3) Bheru Ram, (PW 4) Rang Lal have not disclosed the identity of the assailants before the S.H.O. on 28.4.1983 and have first time disclosed the identity of the alleged assailants on 29.4.1983 at Deedwana while recording their statements under Section 161 Cr.P.C. before PW 18 Karan Raj. The learned trial court has also observed that in facts and circumstances of the case, it is possible that the alleged eye witnesses were planted after the incident on account of their proximity with the deceased Prabhu Ram. The learned trial court has also taken into consideration that the alleged eye witnesses namely Gumana Ram (PW 1), Nunda Ram (PW 2), Bheru Ram (PW 3), Rang Lal (PW 4) are having some inimical relations with the accused Bhanwar Singh as he was one of the witnesses against them in a criminal case. The learned trial court has throughly appreciated the statements of eye witnesses and after taking into consideration all the facts and circumstances, has held that the evidence of eye witnesses namely Gumana Ram (PW 1), Nunda Ram (PW 2), Bheru Ram (PW 3), Rang Lal (PW 4) is not believable and cannot be relied for convicting the accused-respondents. The learned trial court has also taken into consideration the evidence of PW 5 Ramu Ram and PW 6 Chhoga Ram, PW 13 Dunga Ram and PW 14 Hema Ram and found that their evidence is also not reliable. 15. The learned trial court has also taken into consideration the evidence of PW 5 Ramu Ram and PW 6 Chhoga Ram, PW 13 Dunga Ram and PW 14 Hema Ram and found that their evidence is also not reliable. 15. The possibility of false implication of the accused-respondents is not ruled out looking to the fact that PW 1 to PW 6 were at the spot when PW 15 Sukhdev Singh visited the Village Thepri on 28.4.1983 but has not disclosed the identity of the assailants and only disclosed it when the police has recorded their statements on the next day. From their own version, it is clear that the alleged eye witnesses namely Gumana Ram (PW 1), Nunda Ram (PW 2), Bheru Ram (PW 3), Rang Lal (PW 4) were known about the assailants from the date of incident. Ramu Ram (PW 5) also knew about the identity of the assailants just after the incident. Chhoga Ram (PW 6) and Hema Ram (PW 14) were informed about the assailants in the morning of 28.4.1983. However, Hema Ram (PW 14) disclosed the identity of the assailants only in the evening while submitting the written report whereas PW 1 to PW 6 had disclosed the identity of the assailants only when the police recorded their statements on 29.4.1983. 16. It is pertinent to note here that the conduct of the witness PW 13 Dunga Ram and PW 6 Chhoga Ram and PW 14 Hema Ram, who happened to be the brothers of deceased Prabhu Ram is also very unnatural. As per the statement of PW 14 Hema Ram, he was informed about the incident in the morning at about 8:30 PM but despite going to the Police Station Khunkhuna, he went to Deedwana and from there, he got the Exhibit 17 prepared by one Deep Chand and thereafter again submitted it to PW 15 Sukhdev Singh at village Thebri. The reason for not going to the Police Station Khunkhuna on 28.4.1983 is very strange that while sitting in bus he has not seen anybody in the Police Station and, therefore, he has not visited Police Station Khunkhuna and straightway went to Deedwana. The reason for not going to the Police Station Khunkhuna on 28.4.1983 is very strange that while sitting in bus he has not seen anybody in the Police Station and, therefore, he has not visited Police Station Khunkhuna and straightway went to Deedwana. The conduct of PW 16 Chhoga Ram is also very strange that despite receiving information about the murder of his brother Prabhu Ram, he has not taken any step and when PW 15 Sukhdev Singh reached the spot, while stopping him from doing anything, stated him that he should proceed only in the presence of Hema Ram. 17. The statement of Hema Ram (PW 14) was not corroborated with the statement of Ramu Ram (PW 5). In the written report Exhibit 17, Hema Ram (PW 14) has not disclosed that he was informed about the identity of the assailants by Ramu Ram (PW 5). Ramu Ram (PW 5) in his statement has not mentioned that he has informed Hema Ram about the identity of the assailants but has simply said that he has disclosed the identity of the assailants to Chhoga Ram, and Hema Ram was standing there. 18. Be that as it may, from the overall circumstances emerged, it is clear that Hema Ram (PW 14) has not reported about the incident immediately to the police but after knowing about the incident, he straightway went to Deedwana and after deliberations he has submitted the report to Sukhdev Singh (PW 15) without mentioning that from whom he has got the information about the identity of the accused-respondents. The conduct of the alleged eye witnesses namely Gumana Ram (PW 1), Nunda Ram (PW 2), Bheru Ram (PW 3), Rang Lal (PW 4) are also very doubtful as despite having opportunity of disclosing about the identity of the assailants, they have not disclosed it without any valid reason and all these circumstances clearly show that the names of the accused-respondents were mentioned after deliberations. It is also to be noted that in Exhibit P/17 Hema Ram has specifically stated that assailants have also assaulted the Bawaris i.e. the alleged eye witnesses namely Gumana Ram (PW 1), Nunda Ram (PW 2), Bheru Ram (PW 3), Rang Lal (PW 4) but the alleged eye witnesses have not stated in their statements that they were also the assaulted by assailants. 19. 19. In all these above circumstances, we are satisfied that the prosecution has failed to prove the guilt of accused-respondents beyond doubt and, therefore, the learned trial court has not committed any illegality in acquitting the accused-respondents from the charges of offence punishable under Sections 148, 302 read with Section 149 I.P.C. 20. Apart from that it is also to be noted that as per the evidence of the eye witnesses i.e. Gumana Ram (PW 1), Nunda Ram (PW 2), Bheru Ram (PW 3), Rang Lal (PW 4) and the evidence of PW 6 Chhoga Ram and PW 14 Hema Ram, the main assailants, who has inflicted lathi blows on Prabhu Ram due to which Prabhu Ram died, was Devender S/o Magan Singh, the former Sarpanch, however, at the time of trial of the accused-respondents, Devendra Singh was absconding and later on he was apprehended and put to trial but was acquitted by the learned Sessions Judge, Nagaur, Camp Deedwana vide judgment dated 25.9.1990 in Sessions Case No. 24/87 then in such circumstances, when the main accused was not found guilty of murdering Prabhu Ram, the accused-respondents against whom there are no specific allegations of inflicting injury on the body of Prabhu Ram, then they cannot be held guilty for committing murder of Prabhu Ram.In all the above mentioned circumstances, the appeal filed by the State is having no force and, therefore, is hereby dismissed.Appeal dismissed. *******