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2014 DIGILAW 470 (RAJ)

Jagdeva v. State of Rajasthan

2014-02-12

NARENDRA KUMAR JAIN, RAGHUVENDRA S.RATHORE

body2014
JUDGMENT 1. This appeal has been preferred by the accused-appellants under Section 374(2) Cr. P.C. challenging the judgment and order dated 10.08.2005 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Sawaimadhopur (hereinafter referred to as the Trial Court) in Sessions Case No. 12 of 2004 whereby the learned Trial Court, while acquitting the accused-appellants for the offence under Section 3 (2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, convicted and sentenced each one of them as under:– NAMES OF ACCUSED SECTION SENTENCE (1) Jagdeva S/o Rama (2) Harnarayan S/o Rama (3) Kamlesh S/o Harnarayan 302/34 IPC To life imprisonment with fine of Rs. 500/-in default of payment of fine to further undergo three months simple imprisonment. 447 IPC To undergo three months simple imprisonment. All the sentenced were to run concurrently. 2. The case of the prosecution is that a written report (Exhibit P-1) was submitted by one Ram Lakhan (P.W.2) which came to be registered at Police Station Ravanjana Doongar, District Sawaimadhopur at 4.00 A.M. on 30th September, 2003. The report was submitted by Ram Lakhan to the police at the place of incident at 4.00 A.M. when they reached the village on having received an information through control room. According to the report, it was at about 11.30 P.M. on 29th September, 2003, his brother Kamlesh was sleeping on a cot in front of his house. The accused persons Prahlad, Jagdeva and Harnarayan and Kamlesh had suddenly come to his place and committed murder by pressing his neck with a lathi. When Dwarka (P.W.1) mother of the deceased raised a cry, then Prahlad had threatened her on a gun point. Further, it was mentioned in the report that informant Ram Lakhan was sleeping in a nearby field and on hearing the hue and cry, he came to the place of incident and saw the accused-persons running away. Thereafter, he found that his brother Kamlesh could not speak and as such, he gave a call to the persons living in the neighbourhood. The persons of neighbourhood collected at the place of incident and after examination, they declared that Kamlesh was dead. Accordingly, it was requested in the report that appropriate action be taken and the guilty persons be punished. 3. The persons of neighbourhood collected at the place of incident and after examination, they declared that Kamlesh was dead. Accordingly, it was requested in the report that appropriate action be taken and the guilty persons be punished. 3. On the aforesaid written report, regular First Information Report No. 121 of 2003 (Exhibit P-2) was registered at Police Station Ravanjana Doongar, District Sawaimadhopur at 7.30 A.M. on 30th September, 2003 for the offences under Sections 448 and 302 IPC and under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Upon registration of the case, the investigation commenced during which the police had drawn the site plan, inquest report, got the postmortem conducted and recorded the statements of the prosecution witnesses. After arrest of the accused persons and on their information and instance weapon of offence was recovered. On conclusion of the investigation, police filed challan against the present appellants and had dropped Prahlad from the accused before the concerned Magistrate. Then, the case was committed to the Court of Sessions, Sawaimadhopur from where it came to be transferred to the learned Trial Court. Learned Trial Court framed charges against the accused-appellants for the offence under Section 447 and 302/34 IPC and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities)Act. The accused-appellant denied charges and claimed for trial. The prosecution, in support of its case, had produced 22 witnesses and got 21 documents exhibited. Later on statements of accused-appellants were recorded under Section 313 Cr. P.C. wherein they had denied the allegations and mentioned that they have been falsely implicated due to enmity. In their defence, accused-appellants had produced 6 witnesses and got 16 documents exhibited. Learned Trial Court after recording the evidence of both the parties and finally hearing them, passed the judgment and order dated 10.08.2005, whereby it had acquitted the accused-appellants for the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. However, learned Trial Court convicted and sentenced them for the offences aforementioned. Hence, present appeal is before us. 4. Learned counsel for the accused-appellants has vehemently argued the case and submitted that the learned Trial Court has committed illegalities and grossly erred in passing the impugned judgment dated 10.08.2005 and awarding the conviction and sentence to the accused-appellants. However, learned Trial Court convicted and sentenced them for the offences aforementioned. Hence, present appeal is before us. 4. Learned counsel for the accused-appellants has vehemently argued the case and submitted that the learned Trial Court has committed illegalities and grossly erred in passing the impugned judgment dated 10.08.2005 and awarding the conviction and sentence to the accused-appellants. Further, he has submitted that the prosecution has utterly failed to prove its case beyond reasonable doubt. According to him, the entire prosecution case hinges on the statement of Dwarka (P.W.1) which is neither trustworthy, nor reliable. Learned counsel for the accused-appellants has submitted that the prosecution has substituted report which was first in time (Exhibit P-11) with another one which was placed on record as Exhibit P-1. It is submitted that the report submitted at first point of time was received by the police at 1.40 A.M. on 30.09.2003 wherein the present accused-appellants had not been implicated and later on a fresh report (Exhibit P-1) had been taken on record which was submitted at 4.00 A.M. on 30.09.2003 to the police, at the place of incident and the intervening time has been taken for deliberations as well as concoction and thereafter, the accused-appellants had been specifically named therein. It has also been submitted by the learned counsel for the accused-appellants that there is inordinate delay in sending the first information report before the concerned Magistrate. Even the report which has been taken on record as first information report (Exhibit P-1) was registered at 7.30 A.M. on 30.09.2003 and the same was received by the Halka Magistrate at 10.30 A.M. on 01.10.2003. Learned counsel for the accused-appellants has, thus, submitted that delay in sending the report is wholly in contravention with the settled principle of law that a report should be sent to the Halka Magistrate concerned immediately and in the present case there is no just reason available with the prosecution for not sending the report on 30.09.2003 itself when it was already registered in the morning at 7.30 A.M. on that day. 5. Learned counsel for the accused-appellants has emphatically submitted, after inviting attention of this Court to various prosecution evidence on record, that solitary witness of the prosecution namely Dwarka (P.W.1) is neither truthful, nor worthy reliance. 5. Learned counsel for the accused-appellants has emphatically submitted, after inviting attention of this Court to various prosecution evidence on record, that solitary witness of the prosecution namely Dwarka (P.W.1) is neither truthful, nor worthy reliance. It has been submitted that her conduct since the time of incident had been doubtful and she has later on made changes in the version with which she had come in the beginning. None of the accused-appellants were named in the report given to the police (Exhibit P-11) and their participation has not been spelt out even in the instant report (Exhibit P-1). Above all, the solitary witness of prosecution Dwarka (P.W1) had been stating through out i.e. from the first information report as well as during the course of trial that Prahlad was one of the persons who had been involved in commission of the offence whereas the police had after investigation come to the conclusion that he was not connected with the incident. This further goes to show, according to the learned counsel for the accused-appellants, that testimony of Dwarka (P.W.1), solitary witness of the prosecution is not worth reliance and in no case the conviction of the accused-appellants could be based upon the evidence of such witness. Further, learned counsel for the accused-appellants has submitted that even if the case of the prosecution is taken at it is, there is no involvement of the accused Kamlesh, nor he can be connected with committing the murder of Kamlesh S/o Brijmohan. There is no evidence worthy of the name of accused Kamlesh, much less to say, that the prosecution has not proved its case beyond reasonable doubt against him. Therefore, learned Trial Court has erred in convicting and awarding the sentence to the accused-appellants vide impugned judgment. Learned counsel for the accused-appellants therefore submitted that the present appeal may be allowed, the impugned judgment and order passed by the learned Trial Court may be quashed and set aside and the accused-appellants may be acquitted of all the charges levelled against them. 6. Learned Public Prosecutor while supporting the impugned judgment passed by the Trial Court has submitted that their case is based on legal evidence and the findings have been recorded by the learned Trial Court on the basis of cogent reasons. 6. Learned Public Prosecutor while supporting the impugned judgment passed by the Trial Court has submitted that their case is based on legal evidence and the findings have been recorded by the learned Trial Court on the basis of cogent reasons. Learned Public Prosecutor has submitted that the very fact that in the instant case, offence of murder has been committed in a heinous manner, that is to say that pressing the neck of the deceased with the blunt object resulting in his death and there being no external injury to give any clue about the cause of death and it was prosecution witness Dwarka (P.W.1) alone who was knowing this fact and had been disclosing it since beginning which itself shows that there is no reason to disbelieve the prosecution that she was an eye witness to the incident. Otherwise also, the cause of death of the deceased was known to all other only on receipt of the postmortem report which came much later. Learned Public Prosecutor further submitted that in so far as the sending of report to the concerned Halka Magistrate is concerned, the delay is natural and of couple of hours, that is to say that the same was sent within 27 hours from the time of its registration. Therefore, it has been submitted that delay in sending the report to the concerned Magistrate is not of such a nature, so as to throw out the entire prosecution case on this ground alone. It has also been submitted by learned Public Prosecutor that so far as motive of the case for committing murder is concerned it is very much born from the statements of prosecution witnesses that the complainant party was aggrieved of alleged rape, which is said to have been committed by the deceased Kamlesh on member of the complainant party. In the last, it has been submitted by learned Public Prosecutor that a careful and proper scrutiny of the statement of prosecution witness Dwarka (P.W.1) in the entirety of the prosecution evidence goes to show that she is an eye witness of the case and her testimony is truthful and inspires confidence. Therefore, learned Public Prosecutor has submitted that the appeal filed by the accused-appellants deserves to be dismissed by affirming the judgment and order passed by the learned Trial Court. 7. Therefore, learned Public Prosecutor has submitted that the appeal filed by the accused-appellants deserves to be dismissed by affirming the judgment and order passed by the learned Trial Court. 7. On perusal of the material on record of the trial Court, the case of the prosecution unfolded therefrom is that the incident took place on 30th September, 2003 at mid night when the deceased Kamlesh was sleeping on a cot in front of his house. The accused-persons came and pressed the neck with a lathi, resulting in the death of Kamlesh. When the deceased had raised a cry, his mother Dwarka who was sleeping at a little distance woke up and saw the accused putting lathi on the neck of her son Kamlesh and pressing it from both the sides. As she started shouting, Prahlad Gurjar had threatened her on gun point. On hearing the hue and cry at the place of occurrence, the informant Ram Lakhan also woke up and saw the accused running away. Thereafter, he called the persons from the neighbourhood. But, by that time, Kamlesh had died. The incident was witnessed by Smt. Dwarka. The other witnesses Ram Lakhan (informant), Hans Raj and Moti Lal had reached the place of incident at a little later and at different times. They have deposed before the Trial Court about the events which they had actually seen after reaching the place of incident. Therefore, the testimony of Smt. Dwarka, which is corroborated from different circumstances deposed by Ram Lakhan, Hans Raj and Moti Lal, do establish the case of the prosecution as narrated by this sole eye witness. Smt. Dwarka (P.W.1), who is the mother of the deceased, has deposed that in the night at about 11.00-12.00, the accused Jagdeva and Harnarayan came to her Gwadi and kept a lathi on the neck of his son Kamlesh who was also sleeping there. The accused Kamlesh had stuffed a cloth in the mouth of the deceased. On hearing the cry of her son Kamlesh, she had woke up, but Prahlad had pointed a gun on her chest and threatened to kill her, if she does not keep quite. Further she has deposed that on her cry, Lakhan who was sleeping in the Gwadi came rushing to the place of incident. On hearing the cry of her son Kamlesh, she had woke up, but Prahlad had pointed a gun on her chest and threatened to kill her, if she does not keep quite. Further she has deposed that on her cry, Lakhan who was sleeping in the Gwadi came rushing to the place of incident. Thereafter, Hans Raj, Moti Lal who were in the neighbourhood also heard the hue and cry and came to the site. According to the statement of Smt. Dwarka, her son was murdered by the accused-appellants. Subsequently, the deceased Kamlesh was taken down from the cot and made to lie on Chabutara, which followed by crying of the family members after having seen the dead body. 8. The prosecution witness Ram Lakhan (P.W.2) the informant, has deposed that he along with his uncle's son namely Hans Raj were sleeping in the field where Bajra crop was standing and her mother was sleeping in the Gwadi. When her mother raised the cry, he had gone to the place of incident and saw that Harnarayan, Jagdeva and Kamlesh, all armed with lathi, were running away from the place where his brother Kamlesh was lying on the cot. It is said that it was full moon night on that day and, therefore, the informant could easily see the accused persons. Further, Ram Lakhan has stated that he ran behind the accused for some distance. He has deposed that the accused-persons had fled away after committing murder of Kamlesh. He also deposed that he had only seen accused running from the place of incident and it was his mother, who had told him that accused Jagdeva and Harnarayan had murdered Kamlesh by pressing lathi on his neck. The accused Kamlesh is said to have put cloth in the mouth of the deceased. Ram Lakhan had immediately called Moti Lal. Both of them had looked at the deceased Kamlesh and then had put some water in his mouth, but the same did not go down the throat. Hans Raj (P.W.3) was also sleeping in the field in which Bajra crop was standing, along with the informant Ram Lakhan. He has deposed that about 11.30 in the night he heard the cry of his Bua (Father's sister) and Lakhan. Thereafter, he got up and came to the place of incident and saw that Kamlesh had died and was lying there. He has deposed that about 11.30 in the night he heard the cry of his Bua (Father's sister) and Lakhan. Thereafter, he got up and came to the place of incident and saw that Kamlesh had died and was lying there. His Bua, Smt. Dwarka had told him the names of the accused-persons and also stated that they had murdered Kamlesh by putting lathi on his neck. The witness Hans Raj had also seen the injuries sustained by Kamlesh. Later on, he and Ram Lakhan had put down the deceased from the cot. Moti Lal (P.W.14), another important prosecution witness has similarly deposed that at about 11-12 in the night, he heard a hue and cry which was coming from the house of Kamlesh and when he went there, he found that Kamlesh was dead. The cry had been raised by the mother of the deceased Kamlesh and his brother Lakhan. Moti Lal further deposed that when he asked as to who had committed the murder, he was informed by the aforesaid prosecution witnesses present there that it was the accused appellants and then fled away from the spot. According to this witness, he had not seen any injury on the body of the deceased Kamlesh, but his neck was leaning towards one side. 9. After perusal of the statements of the aforesaid four prosecution witnesses it is established that the offence had been committed by the accused persons. A look to the testimony of these witnesses clearly reveals that they are reliable and telling the truth. The informant Ram Lakhan has clearly deposed that he had seen the accused running away and he can not say any thing as to the manner in which the incident had taken place. Similarly Smt. Dwarka, the mother of the deceased has made a truthful narration of the incident and there is no iota of doubt in it. She has deposed that the accused were standing near the deceased and amongst them Jagdeva and Harnarayan had put lathi on the neck of the deceased and pressed it, resulting in his death. Her statement cannot be, in any manner, doubted. All the accused persons were seen, by the aforesaid witnesses, running away from the place of incident. Their names were disclosed by Smt. Dwarka as soon as her son Ram Lakhan reached the spot. Her statement cannot be, in any manner, doubted. All the accused persons were seen, by the aforesaid witnesses, running away from the place of incident. Their names were disclosed by Smt. Dwarka as soon as her son Ram Lakhan reached the spot. Thereafter, when Hans Raj and Moti Lal had come to the place of incident, they were also informed by Smt. Dwarka with regard to the accused persons. Therefore, the presence of the witness Smt. Dwarka and the other witnesses having reached the place of incident one by one thereafter does prove the prosecution case beyond reasonable doubt. It is to be noted that the deposition made by Smt. Dwarka before the Trial Court is fully corroborated by the medical evidence on record. As a matter of fact, the testimony of Smt. Dwarka before the Trial Court, narrating the peculiar manner in which her son Kamlesh was murdered by the accused Jagdeva and Harnarayan, also proves that she had actually seen the occurrence. Subsequently, when the postmortem of the deceased was conducted, the statement of Smt. Dwarka stood fully established because as per the report the death of the deceased was caused by putting a hard substance on his neck. The manner in which the murder of Kamlesh had been committed is not a usual one and the fact regarding the manner in which it was committed was only in the knowledge of Smt. Dwarka which she had disclosed in the beginning when Ram Lakhan had reached the spot, itself establishes beyond any doubt that she had really seen the occurrence. In such circumstances, there is no reason to disbelieve that Smt. Dwarka is not an eye witnesses. Her statement with regard to the narration of facts; the manner in which the incident took place and that she was the only one who had disclosed the names of the accused at the very initial stage when Ram Lakhan had first reached the place of incident definitely shows that her testimony is trustworthy and she is a witness of sterling worth. 10. The prosecution case further discloses the motive behind the incident. It is revealed from the record that wife of the accused Kamlesh was teased by the deceased Kamlesh which developed animosity between the parties and present incident had taken place. 10. The prosecution case further discloses the motive behind the incident. It is revealed from the record that wife of the accused Kamlesh was teased by the deceased Kamlesh which developed animosity between the parties and present incident had taken place. As regards the submission made by the counsel for the accused that first information report (Exhibit P-1) is not the first version because the police was informed earlier on the basis of which it had come to the place of incident, in our opinion, does not have any force. It is well explained by the prosecution witnesses that the said information was vague and it also did not disclose the names of the accused and as such it was not recorded as first information report. It was soon after the police having come to the spot that a report was taken from Ram Lakhan and sent to the police station for registration. 11. However on careful perusal of the prosecution case, as revealed from the evidence on record, there is doubt in so far as the case of accused Kamlesh is concerned. The prosecution had come with a specific case that it was Jagdeva and Harnarayan who had committed the offence of murder by pressing a lathi on the neck of the deceased. Though it is alleged that Kamlesh had stuffed a cloth in the mouth of the deceased, but there is lack of corroborative evidence on record. As for instance, the investigation officer Kailash Bhagwati (P.W.22) had on the information of the accused Kamlesh, recovered a stick (Exhibit P-9). The incident had taken place in the night of 29-30th September, 2003, the accused Kamlesh was arrested only on 4th October, 2003 and the said stick was recovered on 6th October, 2003. Furthermore, there was no blood stains on the stick which was an ordinary one which can be available at the residence of every farmer. Apart from it, perusal of the prosecution evidence prima facie shows that the case of the accused Kamlesh is somewhat like that of the accused Prahlad, who was also named but had been left out by the police at the stage of investigation. Apart from it, perusal of the prosecution evidence prima facie shows that the case of the accused Kamlesh is somewhat like that of the accused Prahlad, who was also named but had been left out by the police at the stage of investigation. Therefore, taking into consideration overall facts and circumstances of the case and the prosecution evidence on record, we have no hesitation in holding that the prosecution case, as against accused Kamlesh, is doubtful and benefit of the same should be given to him. 12. For the aforesaid reasons, we are of the considered opinion that the prosecution has succeeded in proving its case beyond reasonable doubt as against the accused Jagdeva and Harnarayan. Their presence and participation in the incident is well established from the testimony of the eye witness Smt. Dwarka, who has given a truthful narration of the events and is a witness of sterling worth. The circumstances given out by Smt. Dwarka are corroborated from the statements of other witnesses like Ram Lakhan, Hans Raj and Moti Lal by discloser of circumstances which each of them had really seen. The medical evidence on record, particularly the statement of Dr. Shailendra Choudhary (P.W.6) and Dr. M.L. Kanwat (P.W.9) who had opined that the cause of death was by pressing the neck fully corroborates the prosecution case, as established by the eye witness Smt. Dwarka. The prosecution case against the accused-appellant Kamlesh is doubtful and the benefit deserves to be given to him. Therefore, the finding of guilt and conviction awarded by the learned Trial Court to the accused-appellants Jagdeva and Harnarayan, deserves to be affirmed. But the case of accused-appellant Kamlesh has not been proved beyond reasonable doubt by the prosecution and the learned Trial Court has erred in awarding conviction to him. 13. Consequently, the appeal is partly allowed. The conviction and sentence awarded to the accused appellant Kamlesh son of Harnarayan is set aside and the impugned judgment dated 10.08.2005 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Sawai Madhopur in Sessions Case No. 12 of 2004, qua the appellant Kamlesh, is quashed and set aside. He is on bail and need not surrender. His bail bonds stand discharged. He is on bail and need not surrender. His bail bonds stand discharged. The conviction and sentence awarded to the accused appellants Jagdeva son of Rama and Harnarayan son of Rama is maintained and the impugned judgment dated 10.08.2005 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Sawai Madhopur in Sessions Case No. 12 of 2004, qua them, is affirmed. The appeal of accused appellants Jagdeva and Harnarayan is dismissed.