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2015 DIGILAW 1774 (RAJ)

State of Rajasthan v. Bhanwar Nath

2015-10-09

GOPAL KRISHAN VYAS, VIJAY BISHNOI

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JUDGMENT : Vijay Bishnoi, J. This Appeal has been filed by the State against the Judgment dated 26.6.1992 passed by Additional Sessions Judge, Nagaur (for short 'the Trial Court' hereinafter) in Sessions Case No. 47/1989, whereby the Trial Court has acquitted the accused-respondents from the offences punishable under Sections 147, 148, 450, 302 or 302/149, 404/149 I.P.C. by extending the benefit of doubt. 2. Brief facts, necessary for disposal of this Appeal, are that on 12.8.1989 at about 10.30 P.M. PW-1-Kishan Nath S/o Sawant Nath had submitted a written report at Police Station, Panchodi, inter alia, alleging therein that he and his two brothers are having 50 bighas of agricultural land, where a hut belonging to them is situated. On that day at about 12.00 in the noon, Kishan Nath S/o Ramsukh Nath (for short 'the deceased' hereinafter) came to his field and told him that accused-respondents made a plan to kill him, then PW-1-Kishan Nath assured him that nobody would kill him. At that time, accused-respondents having lathis in their hands came there and started beating with the deceased with lathis. PW-1-Kishan Nath tried to intervene but in vain, therefore, he made hue and cries but nobody came there and the accused-respondents fled away from the scene of once. PW-1-Kishan Nath narrated the incident to PW-2-Pema Ram and one Moola Ram, who had stated that they would not go to the scene of occurrence without Sarpanch, thereafter, he took PW-9-Teja Ram, the then Sarpanch of village Guda Bhagwandas and PW-12-Idan Ram, by that time, the sun was set. PW-6-Shiv Nath S/o Gomad Nath was sent by PW-9-Teja Ram to the Police Station to report the matter. 3. On receiving the said report (Ex. P-1), F.I.R. No. 39/89 (Ex. P-21) was registered at Police Station, Panchodi against the accused-respondents for the offence punichable under Sections 147, 148, 149, 447, 302 I.P.C. The police had commenced the investigation and after investigation, filed the charge-sheet against the accused-respondents for the offence punishable under Sections 147, 148, 450, 302 or 302/149 I.P.C. On 16.12.1989, the charges were read over to the accused-respondents, which they denied and claimed for trial. 4. During the course of trial, the prosecution, in support of its case, got examined as many as 16 witnesses and also exhibited several documents. 4. During the course of trial, the prosecution, in support of its case, got examined as many as 16 witnesses and also exhibited several documents. Statements of accused-respondents were recorded under Section 313 Cr.P.C. and they had produced two witnesses in defence and also exhibited several documents. After hearing the Counsels for the parties, learned Trial Court has acquitted the accused-respondents from the offences punishable under sections 147, 148, 450, 302 or 302/149 and 404/149 I.P.C. by extending the benefit of doubt. 5. Assailing the impugned Judgment dated 26.6.1992, learned Public Prosecutor has argued that learned Trial Court has grossly erred in acquitting the accused-respondents for the offences punishable under Sections 147, 148, 450 and 302 or 302/149 and 404/149 I.P.C. It is submitted that the prosecution has fully proved that on 12.8.1989, the accused-respondents had brutally assaulted deceased Kishan Nath S/o Ramsukh Nath. It is contended that the prosecution witnesses viz. PW-1-Kishan Nath, PW-5-Khem Nath S/o Ramsukh Nath, PW-7-Adu Nath S/o Ramsukh Nath are the eye-witnesses of the incident and have proved the prosecution story, however, the Trial Court has wrongly disbelieved their testimonies solely on the basis of minor contradictions in their depositions. Learned Public Prosecutor has further argued that the recovery of lathis, at the instance of the accused-respondents, is fully proved by the prosecution, however, the learned Trial Court has illegally disbelieved the same without giving any cogent reason. It is also argued that the other witnesses viz. PW-12-Idan Ram, PW-6-Shiv Nath and PW-9-Teja Ram have also corroborated the testimonies of the eye-witnesses, however, the Trial Court has disbelieved their testimonies in illegal manner. 6. On the strength of the above arguments, learned Public Prosecutor has prayed that this Appeal may be allowed and the impugned Judgment dated 26.6.1992 may be set aside and the accused-respondents may be convicted for the offences punishable under Sections 147, 148, 450 and 302 or 302/149 and 404/149 I.P.C. 7. Per contra, learned Counsel for the accused-respondents has argued that the learned Trial Court has rightly disbelieved the testimonies of the alleged eyewitnesses viz. PW-1-Kishan Nath S/o Sawant Nath, PW-5-Khem Nath S/o Ramsukh Nath, PW-7-Adu Nath S/o Ramsukh Nath because the said witnesses did not see the incident and they were planted by the prosecution only with intention to implicate the accused-respondents in the commission of murder of Kishan Nath S/o Ramsukh Nath. PW-1-Kishan Nath S/o Sawant Nath, PW-5-Khem Nath S/o Ramsukh Nath, PW-7-Adu Nath S/o Ramsukh Nath because the said witnesses did not see the incident and they were planted by the prosecution only with intention to implicate the accused-respondents in the commission of murder of Kishan Nath S/o Ramsukh Nath. It is submitted that the version of the alleged eye-witnesses has not been corroborated by the testimonies of the other witnesses viz. PW-12-Idan Ram, PW-6-Shiv Nath and PW-9-Teja Ram and, therefore, the Trial Court has rightly disbelieved the testimonies of the said witnesses. It is also argued that the witnesses of the recovery of the lathis have not supported the prosecution case and they were declared hostile and as no blood was found on the lathis recovered, the Trial Court has rightly held that the recovery of the lathis at the instance of the accused-respondents is not believable. It is also argued that the prosecution has failed to prove any motive of the accused-respondents to kill the deceased Kishan Nath and, therefore, the learned Trial Court has rightly held that the prosecution has failed to prove beyond reasonable doubt that the accused-respondents have committed the murder of Kishan Nath S/o Ramsukh Nath. 8. On the strength of the above arguments, learned Counsel for the accused-respondents has argued that the Appeal preferred on behalf of tine State may be dismissed and the Judgment dated 26.6.1992 may be affirmed. 9. Heard learned Counsel for the rival parties and perused the impugned judgment and carefully scrutinized the record of the case. 10. The prosecution has started investigation in connection with the murder of deceased Kishan Nath on the basis of the written report (Ex. P-1) submitted by PW-1-Kishan Nath S/o Sawant Nath at 10.30 P.M. on 12.8.1989 in his agricultural field situated at village Galni, where the dead body of the deceased was lying. However, PW-9-Teja Ram and PW-6-Shiv Nath have stated in their statements that in the evening at about 4.00 P.M. PW-1-Kishan Nath had informed PW-9-Teja Ram about the incident, then PW-6-Shivnath went to the Police Station, Panchodi on the instructions of PW-9-Teja Ram to lodge the First Information Report, which was written by PW-9-Teja Ram. However, PW-9-Teja Ram and PW-6-Shiv Nath have stated in their statements that in the evening at about 4.00 P.M. PW-1-Kishan Nath had informed PW-9-Teja Ram about the incident, then PW-6-Shivnath went to the Police Station, Panchodi on the instructions of PW-9-Teja Ram to lodge the First Information Report, which was written by PW-9-Teja Ram. PW-6-Shiv Nath in his statement has stated that he had submitted the report to the Police Station in the evening of 12.8.1989, however, PW-10-Ghewar Ram, Head Constable of Police Station, Panchodi has denied that any such First Information Report was submitted before him by PW-6-Shiv Nath. From the above facts, it is clear that the prosecution has not come up with the clear case that when the police had received the First Information Report regarding the incident. 11. In the present case, the prosecution has produced three witnesses viz. PW-1-Kishan Nath, PW-5-Khem Nath and PW-7-Adu Nath posing them as eyewitnesses, however, the statements under Section 161 Cr.P.C. of two alleged eye-witnesses PW-5-Khem Nath and PW-7-Adu Nath were recorded by the police for the first time on 19.8.1989. From the prosecution evidence, it emerges that when the police visited the place of incident on 13.8.1989, both the witnesses PW-5-Khem Nath and PW-7-Adu Nath, who were the real brothers of the deceased Kishan Nath were present there and remained there till the dead body of the deceased was handed over to them on 14.8.1989 after post mortem. It is very strange that though the above named two witnesses PW-5-Khem Nath and PW-7-Adu Nath were the eye-witnesses and were very much present at the scene of occurrence, then whey did the police not record their statements under Section 161 Cr.P.C. till 19.8.1989. 12. It is also noticed that none of the witnesses has verified the presence of PW-5-Khem Nath and PW-7-Adu Nath at the place of incident. Their conduct is also very unnatural because though they have stated that they witnessed the assault upon their brother deceased Kishan Nath but they neither intervened nor tried to rescue their brother from the assailants and even after when the assailants left the place of incident, they had not taken care of their brother and went to their house. 13. Their conduct is also very unnatural because though they have stated that they witnessed the assault upon their brother deceased Kishan Nath but they neither intervened nor tried to rescue their brother from the assailants and even after when the assailants left the place of incident, they had not taken care of their brother and went to their house. 13. Looking to the above circumstances, we are of the opinion that the testimonies of PW-5-Khem Nath and PW-7-Adu Nath are not reliable and the learned Trial Court has rightly disbelieved the said witnesses. 14. So far as PW-1-Kishan Nath is concerned, though in his statement before the Court, he alleged that all the accused-respondents had assaulted the deceased in the hut and when he tried to intervene, they threatened him and, therefore, he ran away from the scene of crime. He has stated that he immediately informed the PW-2-Pema Ram that the accused-respondents assaulted the deceased in his hut. PW-2-Pema Ram has not supported the prosecution story and was declared hostile. However, during the course of cross-examination, he had submitted that Kishan Nath informed him about the incident but he did not name any accused-person and informed that somebody was assaulted Kishan Nath. 15. Similarly, PW-13-Jornath S/o Resham Nath has stated in his statement that when he reached the spot, PW-7-Adu Nath and PW-5-Khem Nath were sitting there, however, PW-1-Kishan Nath was not there and the wife and son of PW-1-Kishan Nath were present. PW-13-Jornath has further stated that when he asked about the assailants from the wife of PW-1-Kishan Nath, she informed that some 2-3 persons have assaulted the deceased but she does know their names because she was in the agricultural field at that time. PW-13-Jornath has also stated that in the late night, PW-1-Kishan Nath also reached the spot and when he asked about the assailants to him, he informed that he does not know about their names because he was not present at the site. PW-12-Idan Ram in his statement has stated that he was present at the house of PW-9-Teja Ram when Kishan Nath came there and informed them about the incident and named Heer Nath, Hardev Nath and Nenu Ram as assailants. From the above analysis, it is clear that the witnesses viz. PW-2-Pema Ram, PW-13-Jornath and PW-12-Idan Ram have not corroborated the testimony of PW-1-Kishan Nath. From the above analysis, it is clear that the witnesses viz. PW-2-Pema Ram, PW-13-Jornath and PW-12-Idan Ram have not corroborated the testimony of PW-1-Kishan Nath. It is also noticed that in his statement PW-1 has stated that just after seen the incident, he immediately rushed to the house of PW-2-Pema Ram and Moola Ram and informed them about the incident. It is very strange that though the house of the deceased was situated near to the house of PW-1-Kishan Nath but instead of informing to the family members of the deceased, the complainant had approached the PW-2-Pema Ram and Moola Ram and thereafter to the Sarpanch PW-9-Teja Ram. The conduct of PW-1-Kishan Nath, therefore, cannot be said to be natural. 16. The Trial Court after taking into consideration the above facts and circumstances of the case and other circumstances, has disbelieved the testimony of PW-1-Kishan Nath and in our opinion the Trial Court has not committed any illegality in doing the same. 17. So far as the recovery of lathis, at the instance of the accused-respondents is concerned, the independent witnesses have not supported that recovery and the recovered lathis were also not blood stained. Hence, we are of the opinion that the Trial Court has not committed any illegality in not placing any reliance upon the said recovery. 18. In view of the above discussions, we do not find any merit in this Appeal and the same is hereby dismissed. Appeal dismissed.