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2014 DIGILAW 141 (RAJ)

Jagdish v. State of Rajasthan

2014-01-09

NARENDRA KUMAR JAIN, RAGHUVENDRA S.RATHORE

body2014
JUDGMENT By the Court: (Per Hon'ble Rathore, J.) All the aforesaid appeals arises out of the judgment dated 17.07.2003 passed by the learned Additional Sessions Judge (Fast Track), Bandikui in Sessions Case No.35/2001 and as such they are being decided by this common order. 2. These appeals have been filed by the accused appellants under Section 374(2) Cr.P.C. challenging the judgment passed by the learned trial court on 17.07.2003, whereby they have been convicted and sentenced as under:- “For the offence under Section 302/149 IPC each to undergo sentence of Life Imprisonment and to pay a fine of Rs.100/- each, in default of which each to further undergo 15 days further Simple Imprisonment. For the offence under Section 148 IPC each to undergo 2 years Simple Imprisonment. For the offence under Section 325/149 IPC, each to undergo 3 years Simple Imprisonment and to pay a fine of Rs.50/- each, in default of which each to further undergo 7 days Simple Imprisonment. For the offence under Section 324/149, 323/149, 426/149 IPC to undergo 2 years, 1 year and 2 months Simple Imprisonment respectively awarded to the each appellants.” 3. Instant criminal proceedings were initiated on a Parcha Bayan of Arjun (PW-1) which was recorded at Government Hospital Bandikui by the SHO, Police Station Bandikui on 04.10.1998. As per the Parcha Bayan, at about 02.00-03.00 pm. in the afternoon, Arjun, his wife Kamod, brother Raghuveer and other members of the family were having conversation in nearby Dhani Haripura. Jairam, Bhinwa, Mohar and Pawan were also sitting there. All of a sudden, Nathu son of Bardya Maimber, Kishore son of Ranjeet, Jagdish son of Dhoklya, Jagdish son of Moolya Chaprasi, Ramkishore, Adisaal son of Jainya, Lallu Mali, Harlal son of Lallu, Kishore brother of Lallu, Girraj son of Bachcha, Sarli Chaudhary, Babu son of Rewad, Chetram and Kalyan Bairwa son of Poonya came in a tractor which was being driven by Khili Saini. All these persons are said to have been armed with various weapons like lathi, kharwari, barchhi and Hardayal was having a katta. On having seen the accused persons coming towards the informant and all other persons sitting, they went inside patol and closed it. But the aforesaid accused persons, with the intention of murder, broke open the doors, wall and slabs of patol. Thereafter on having entered the patol, they started beating all the members of the complainant party. On having seen the accused persons coming towards the informant and all other persons sitting, they went inside patol and closed it. But the aforesaid accused persons, with the intention of murder, broke open the doors, wall and slabs of patol. Thereafter on having entered the patol, they started beating all the members of the complainant party. It is alleged that Khili son of Bhanwrya Mali inflicted injury to informant Arjun; Hardayal opened fire with his katta and the accused persons broke the locks of the box and took away jewellery and currency notes. Subsequently, Arjun and Raghuveer were dragged first to the house of Ranjeeta Gurjar and thereafter, on having thrown them in the tractor, they were taken to the house of Chander Mali and Lallu Mali. The informant was beaten by lathi. It is stated in the report that a dispute was already going on between the parties and the accused persons had declared that they would not permit them to cultivate the land. It is also mentioned that the police had brought the injured Arjun to the hospital. 4. On the aforesaid complaint, a first information report (595/1998) came to be registered at Police Station Bandikui for the offences under Section 147, 148, 149, 452, 325, 427, 308 and 309 IPC. Thereafter, the investigation commenced and on conclusion of the same, challan came to be filed for the offences under Section 147, 148, 323, 307, 302, 407, 452 and 379 read with Section 149 IPC. The investigation as against the accused Ramesh and Jagdish was kept pending under Section 173(8) Cr.P.C. Subsequently, supplement charge-sheet came to be filed. The case being triable by Court of Sessions, the concerning Magistrate committed the same to the learned Sessions Judge, who had thereafter transferred it on 19.06.2001 to the Additional District & Sessions Judge (Fast Track), Bandikui for trial. The case relating to the supplement charge sheet was tagged with the main case on 12.11.2001. The trial commenced with framing of charge on 26.07.2002, against 26 accused persons. The accused persons denied the charges and claimed for trial. The prosecution had, in support of its case, produced 23 witnesses and filed 125 documents which were duly exhibited by the learned trial court. Subsequently, the statement of the accused persons were recorded under Section 313 Cr.P.C. They did not produce any evidence in their defence. The accused persons denied the charges and claimed for trial. The prosecution had, in support of its case, produced 23 witnesses and filed 125 documents which were duly exhibited by the learned trial court. Subsequently, the statement of the accused persons were recorded under Section 313 Cr.P.C. They did not produce any evidence in their defence. It may be noted that the accused Ramjilal son of Pooniram Bairwa, Rewad son of Budha Mali had expired during the trial and as such, the proceedings against them were dropped. The learned trial court, after concluding the trial and hearing both the sides, pronounced the judgment on 17.07.2003 whereby it had convicted and sentenced the accused appellants for the offences, aforementioned, after acquitting 10 other persons from all the charges levelled against them. The accused Harlal son of Lallu was acquitted for the offences under Section 307, 449 and 380/149 IPC and Section 3/25 of the Arms Act, after giving the benefit of doubt. The present accused appellants were also acquitted for the offences under Section 380/149, 307/149 and 449 IPC. 5. Learned counsels for the accused appellants have submitted that the impugned judgment passed by the learned trial court deserves to be quashed and set aside as it has not taken into consideration the facts and circumstances of the case in its totality and has also not carefully considered the evidence produced before it by the prosecution. Further, he has submitted that though the prosecution had come with a case against 26 persons, the learned trial court itself had come to the conclusion that no case against 10 persons had been made out and therefore, they were acquitted of all the charges levelled against them. However, present accused appellants, 16 in number, have been convicted and sentenced by the learned trial court on the basis of the same set of evidence for giving beating, attempt to murder and murder with the aid of Section 149 IPC. The prosecution had also come with a case of house trespassing and for taking away jewellery after breaking the locks of the boxes. But the learned trial court has held that neither the offence under Section 307 nor under Section 449 or 380 IPC have been proved by the prosecution and as such, all the accused persons have been acquitted in respect of the said offences. But the learned trial court has held that neither the offence under Section 307 nor under Section 449 or 380 IPC have been proved by the prosecution and as such, all the accused persons have been acquitted in respect of the said offences. It has also been submitted by the learned counsels for the accused appellants that the learned trial court has given a finding that all prosecution witnesses were either relatives or interested and it is a fact that the only independent eye-witness, namely Sultan did not support the prosecution story and had been declared hostile. In such a situation, the prosecution case is based on no evidence but even then the trial court has convicted and sentenced the present accused appellants. So far as the informant Arjun is concerned, learned counsels for the accused appellants have submitted that on reading of his Parcha Bayan; statements given during the course of investigation and deposition made by him before the court below, leaves no room of doubt that he is not a witness of sterling worth. For all these reasons, the learned counsels for the appellants have submitted that the prosecution has failed to prove its case beyond reasonable doubt and as such, the impugned judgment deserves to be quashed and set aside. 6. The learned Public Prosecutor has submitted that the learned trial court has rightly convicted and sentenced the present accused appellants, after thoroughly and properly considering the evidence on record. Further, it has been submitted that the learned trial court has acquitted the accused persons against whom there was no evidence and also of the charges under Section 449, 380 and 307 IPC in respect of which there was lack of evidence. According to him, this itself shows that the learned trial court has rightly considered the prosecution case and the evidence produced by it and had convicted and sentenced only those against whom the case have been proved beyond reasonable doubt. He has also submitted that the prosecution witness Arjun is not only the informant but he had also been injured in the same incident. The said witness has proved the version of the prosecution case as regard the incident and the beating given by the accused persons to Raghuveer, who had later succumbed to his injury and died. He has also submitted that the prosecution witness Arjun is not only the informant but he had also been injured in the same incident. The said witness has proved the version of the prosecution case as regard the incident and the beating given by the accused persons to Raghuveer, who had later succumbed to his injury and died. The learned Public Prosecutor has submitted that the learned trial court had, after thorough consideration of the case as well as the evidence produced by the prosecution, convicted only those against whom the case had been proved. Therefore, the finding arrived at by the learned trial court, as against the present accused, does not suffer from any illegality or infirmity nor it calls for any interference by this Court. As a matter fact, the learned Public Prosecutor has submitted that the judgment passed by the learned trial court deserves to be affirmed in this appeal. 7. We have given out thoughtful and anxious consideration to the submissions made by the learned counsels for the rival parties and have carefully considered the material on record of the trial court. The prosecution case, as unfolded from the evidence, is that on 04.10.1998, the members of the complainant party were sitting in Dhani Haripura. The accused party had, all of a sudden, come to the place in a tractor, fully armed. When the complainant party, feeling scared of them took shelter in the patol, the accused party had broken the doors; removed the slabs of patol and entered in it. Further, the case of the prosecution is that the accused party inflicted injuries on the member of the complainant party with various weapons and had also taken jewellery and cash by breaking the locks of the boxes. At the initial stage, the prospection case, as per the Parcha Bayan/ first information report was against named 16 persons. 8. During the course of investigation, the prosecution came with the case that there were in all 26 persons who had come to the place of complainant party and had attacked them. It is also the case of the prosecution that injuries were caused to the members of complainant party by blunt as well as sharp edged weapon and also by gun fire. It is also the case of the prosecution that injuries were caused to the members of complainant party by blunt as well as sharp edged weapon and also by gun fire. After conclusion of the investigation and when the matter was before learned trial court, the prosecution had come with the case, by way of an application under Section 319 Cr.P.C., that one another person, namely Banna son of Jainarayan was also involved in the commission of the crime and as such, cognizance be taken against him. 9. When the trial commenced and charges came to be framed against the accused persons, on the basis of the evidence on record, the case of the prosecution as against the accused Ramkishore and Adisaal was for the offences under Section 302 IPC. Besides they were charged for the offences like Section 449, 427 and 380 IPC, etc. The accused Harlal was charged for the offences, amongst others, under Section 307 IPC. All the accused persons were charged for the offence under Section 449 IPC to have entered the patol after breaking the doors, etc. and also for the offence under Section 380 IPC for taking jewellery and cash after breaking the locks of the boxes. The prosecution had then produced, in support of its case, 23 witnesses and filed 125 documents and got them exhibited. On conclusion of the trial and after considering the material on record, the learned court below had given the finding, in para 30 of the judgment, that there was only one independent witness Sultan (PW-16), whereas all other witnesses were relatives or interested. The prosecution had produced four eye-witnesses, namely Bhimaram (PW-3), Jairam (PW-6), Pawan (PW-8) and Mohar Singh (PW-13). However, the learned trial court, after considering the testimony of the said witnesses, gave a finding that they are not to be believed. Another witness, namely Nathu Singh (PW-2) was also produced as eye-witness. But again the learned trial court had, after considering his testimony and the fact that he was the real brother of the deceased Raghuveer, come to the conclusion that his statement is not worthy of reliance. Another witness, namely Nathu Singh (PW-2) was also produced as eye-witness. But again the learned trial court had, after considering his testimony and the fact that he was the real brother of the deceased Raghuveer, come to the conclusion that his statement is not worthy of reliance. Furthermore, the learned trial court had considered some more prosecution witnesses, namely Smt. Sona (PW-4) wife of the prosecution witness Bhimaram, Smt. Poonam (PW-9), who was the wife of the younger brother of Arjun and elder brother of the deceased Raghuveer, Smt. Madhu (PW-10), who was the wife of the prosecution witness Jairam, Smt. Kamod (PW-11), wife of the injured prosecution witness Arjun and Smt. Triveni (PW-12), wife of the prosecution witness Mohar Singh. The learned trial court, after considering the statements of these witnesses, who were also the relatives of the complainant party, had discarded their testimony as being not reliable. 10. The learned trial court had also considered the prosecution case in respect of the offences under Section 449 IPC and gave a finding that the prosecution had failed to prove said charges against the accused persons and as such, all the accused persons (26 in number) were acquitted from the same. Similarly, the learned trial court, after considering the evidence of the prosecution with regard to the offence under Section 380 IPC, also gave a finding that the same is not made out. Accordingly, all the accused persons were acquitted of the charges for the offence under Section 380 IPC. The accused Harlal, who was specifically charged, alongwith other charges, for the offence under Section 307 IPC, and the learned trial court gave the finding that the prosecution has failed to prove the said charge against him and as such, he was acquitted for the same. 11. From the aforesaid facts and circumstance, it is born out that the prosecution had come with the case of Marpeet; entering patol after breaking the doors and taking away jewellery by 27 accused persons. 11. From the aforesaid facts and circumstance, it is born out that the prosecution had come with the case of Marpeet; entering patol after breaking the doors and taking away jewellery by 27 accused persons. As a matter of fact, the case of the prosecution was thereafter improved by the informant himself when he had named 26 persons to have been involved in the commission of the crime at the time of recording of his statement by the police during the course of investigation whereas in his own Parcha Bayan given to the police, case was only against 16 persons for being involved in the incident. But it appears that the prosecution was not satisfied by increasing the number of accused persons from 16 in the Parcha Bayan to 26 during the course of investigation and therefore, an application under Section 319 Cr.P.C. was filed during the trial so as to add one more accused. Of course, the learned trial court did not find any case worth taking cognizance against him and had declined the request of the prosecution by rejecting the said application. 12. There is yet another aspect of the prosecution case that at the initial stage it had come with a version, so as to increase the gravity of the case, by including the offences under Section 307, 380 and 449 IPC. Ultimately, the prosecution case as regards the number of persons involved in the commission of the crime and the nature of offences committed by the accused were found to be incorrect by the learned trial court and as a result of it, some of the accused persons have been acquitted and all the accused persons were acquitted of some of the charges initially levelled against them by the prosecution. Furthermore, the testimony of prosecution witnesses is not free from suspicion as apart from the fact that they were relatives and interested person and therefore their testimony was not accepted by the learned trial court, to a large extent. 13. The only prosecution witness on which the entire case of the prosecution hinges is that of Arjun (PW-1). He had himself got the Parcha Bayan recorded on the basis of which the first information report was registered. But later on when his statement under Section 161 Cr.P.C. was recorded by the learned trial court, he had changed his version to a large extent. He had himself got the Parcha Bayan recorded on the basis of which the first information report was registered. But later on when his statement under Section 161 Cr.P.C. was recorded by the learned trial court, he had changed his version to a large extent. It is to be noted that the said statement, during the course of investigation, was recorded on 25.10.1998, that is to say after 20 days of the incident. The explanation sought to be given by the prosecution was that it was due to his serious condition after having sustained injuries at the hands of the accused that his statement could not be recorded by the police, at earlier point of time. But on consideration of the relevant circumstances and material on record, the learned trial court had disbelieved the said explanation given by the prosecution as there was no material in support of it. The initial version of the prosecution, on the basis of Parcha Bayan of the informant Arjun, was clearly for crime having been committed by the accused in respect of different offences but the learned trial court has disbelieved the same in respect of the offences under Section 449 and 380 IPC. It is to be noted that the informant had made improvements in respect of number of accused persons even at the stage of investigation itself, this fact has not been accepted by the learned trial court by holding that all the 26 persons were not involved in the commission of the crime. 14. Ultimately, the question remains as to whether the prosecution has been able to prove its case beyond reasonable doubt on the basis of the sole testimony of Arjun (PW-1). In other words, can the testimony of Arjun be said to be of sterling worth on the basis of which the learned trial court has convicted and sentenced the present accused appellants. As mentioned above, the so called eye-witnesses of the prosecution, namely Bhimaram (PW3), Jairam (PW-6), Pawan (PW-8) and Mohar Singh (PW-13) and other witnesses of the family who were said to be present at the time of incident, namely Smt. Sona (PW-4), Smt. Poonam (PW-9), Smt. Madhu (PW-10), Smt. Kamod (PW-11) and Smt. Triveni (PW12) have been totally discarded by the learned trial court as it did not find their testimony worthy of reliance. As a matter of fact, the learned trial court had given the finding that the said witnesses were neither the eye-witnesses nor present at the time of incident and they have so deposed only because they happened to be the relatives of the deceased and interested persons, as being member of the complainant family. A careful perusal of the statement of Arjun (PW-1) goes to show that a major part of his version, such as, implication of other persons and some other offences alleged to have been committed by the accused appellants have been found to be untrue and a finding in this respect has been given by the learned trial court. The remaining part of the testimony of the witness Arjun (PW-1) is to be accepted or not is the moot question in the present case. If one looks at the prosecution story, it is revealed that the accused persons had come to the place of complainant party and when the complainant party took shelter inside the patol, they had broken the doors and removed the slabs of the patol so as to make a forced entry. Thereafter, they gave beating to the accused persons. It is also the case of the prosecution that the accused persons had broken the locks of the boxes and taken away the jewellery and cash. So far as the two parts of the prosecution version, namely breaking the doors for entering the patol forcefully and taking away jewellery after breaking the locks of the boxes is concerned, the same has held to be false by the court below. As regards the accused persons, who have given beating the member of the complainant party, again it has been found after trial that 10 persons were not even present and they have been falsely implicated. That being the situation of the testimony of the solitary witness of the prosecution, it is required that his statement should be carefully and cautiously considered. Moreover, the prosecution witness Arjun had not struck to the version given by him in the Parcha Bayan. In fact he had rather tried to make improvements during the course of investigation, by increasing the number of accused persons. Moreover, the prosecution witness Arjun had not struck to the version given by him in the Parcha Bayan. In fact he had rather tried to make improvements during the course of investigation, by increasing the number of accused persons. Therefore, taking into consideration the facts and circumstances of the case in totality and the evidence produced on record, particularly the statement of Arjun (PW-1), this Court is of the view that there is a doubt in the truthfulness in the statement of such a witness. As said earlier, it is not only in respect of a number of persons involved in the crime but also the manner in which the incident had taken place which has been discarded, to a large extent, by the learned trial court. The statement of Arjun (PW-1) do cast a shadow of doubt and the settled principle of law is that where there is a doubt in the prosecution case, the benefit should be given to the accused. Therefore, we are also of the considered opinion that the present case is a one where such benefit should be given to the present accused appellants. 15. It may also be mentioned here that the prosecution had initially come with the case that it was Ramkishore and Adisaal who had committed the offence of murder and accordingly they were charged for the offences, inter alia under Section 302 simplicitor. We are afraid that we are unable to accept the finding given by the learned trial court that it was in furtherance of common object and by forming unlawful assembly that all the accused persons had committed the offence, with the aid of Section 149 IPC. A bare perusal of the Parcha Bayan and the statements of other witnesses of the prosecution goes to show that it is their own case that the incident had taken place all of a sudden. There is no iota of evidence on record to show the formation of unlawful assembly and for that matter, it was in furtherance of it that the accused had reached the place of incident and committed the offence. There is no iota of evidence on record to show the formation of unlawful assembly and for that matter, it was in furtherance of it that the accused had reached the place of incident and committed the offence. Merely saying that all the accused persons and the complainant party had enmity on account of a dispute of a way that the accused had gone to the place of complainant party and committed the offence, is neither substantiated from the material on record nor can be accepted by a prudent man and it does not stand the test of logic. The dispute with regard to a way would not lead so many accused persons to form an unlawful assembly; coming to the place of complainant party and to have committed the offence of breaking the doors of patol; to make a forceful entry in it and to give severe beating resulting in death of one person. Even if it is assumed, for the sake of argument, that the accused party had gone to the place of complainant party on account of grudge with regard to a way, the manner of incident would only have been of Marpeet and not breaking of locks of the boxes and taking away jewellery and cash. Even the incident of Marpeet, as given out by the prosecution, is improbable that the accused persons would break the doors and removed the stone slabs of the patol and make a forceful entry only to give them beating. 16. For the aforesaid reasons, we are of the considered opinion that the prosecution has, in the present case, failed to prove its case beyond reasonable doubt. It is not only a case of over-implication but also of exaggeration in respect of the manner in which the incident had taken place and it appears that the prosecution has rather concealed the true facts with regard to the manner in which the incident had taken place. Having considered the facts and circumstances of the case, in its totality, on carefully considering the prosecution evidence on record and the finding arrived at by the learned trial court in respect of some of major points of the prosecution case, we do not have any hesitation in holding that the benefit of doubt should be given to the accused persons. Accordingly, the impugned judgment deserves to be quashed and set aside and the accused persons be discharged of all the charges levelled against them. 17. Consequently, all these appeals are allowed. The impugned judgment and order dated 17.07.2003 passed by the Additional District and Sessions Judge (Fast Track), Bandikui, District Dausa in Sessions Case No.35/2001 is quashed and set aside. The accused appellants are acquitted of all the charges levelled against them. The accused appellants Ramkishore S/o Moolchand Chaprasi, Adisaal S/o Jainarayan and Ramesh S/o Nonda Ram are in jail and they shall be released forthwith, if not required in any other case. As the accused appellants Lallu Ram S/o Shri Chandar and Kalyan S/o Shri Pooniram have died during the pendency of the appeal, the appeal filed by them stands abetted. The remaining accused appellants are on bail and they need not surrender. Their bail bonds stand discharged.