Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 946 (RAJ)

Ram Karan v. State of Rajasthan

2016-07-06

NAVIN SINHA, PANKAJ BHANDARI

body2016
JUDGMENT : The appellant stands convicted under Section 302 I.P.C. to life imprisonment with fine of Rs. 100/-, in the event of failure to pay which he was required to undergo one month's further simple imprisonment as ordered on 28.1.1988 by the Addl. District and Sessions Judge No. 1 Hanumangarh (Camp Sangeria) in Sessions Trial No. 21/1984. 2. The deceased Balhar Singh was the brother of PW-6 Darshan Singh. Having finished attending to their fields by the end of the day on 13.2.1984, they are stated to have gone to the adjacent fields of the Appellant who also ran a hooch stall. While they were consuming alcohol an altercation ensued when the appellant is alleged to have pressed the neck of the deceased with the lathi causing death by asphyxia. 3. F.I.R. Exhibit P-4 was lodged on 14.2.1984 by PW-6 Darshan Singh. The post mortem of the deceased Exhibit P-3 was done by PW-5 Dr. Shrinath and PW-8 Mr. K.L. Batia. The viscera Exhibit P-19 confirmed the presence of alcohol. The appellant was arrested on 24.2.1984. 4. Learned Counsel for the appellant submitted that PW-6, Darshan Singh was a completely unreliable witness spinning stories evident from a conjoint reading of the F.I.R., his police statement under Section 161 Cr.P.C. and his deposition in Court. He was not an eye-witness according to his own statements and reached the place of occurrence after the assault was over. There are material contradictions and omissions in his evidence making him completely unreliable and it would be unsafe to base conviction on the same. In the F.I.R. he stated that three persons were sitting on the chest of the deceased assaulting him. This was a physical impossibility. At the end of the F I.R. he also stated that it was read over and explained to him only where after he signed it. The witness as not stated that the F.I.R. was not correctly recorded. The injuries found on tie person of the deceased were five in number simple in nature. Even if death as been caused by asphyxia unless there is direct and cogent evidence with regard to which one of the three was sitting on the chest of the deceased and pressed the neck with lathi benefit of doubt has to be given to the Appellant. 5. The police statement of PW-6 Darshan Singh was recorded on the same day. 5. The police statement of PW-6 Darshan Singh was recorded on the same day. In that also reiterating the F.I.R. he did not mention which one of the three assailants was sitting on the chest and pressing the neck with lathi. True in his Court statement he did say that it was the appellant who was pressing the neck of the deceased with lathi. But there is material contradiction during cross-examination when he states having told the police both at the time of the F.I.R. and in his police statement that it was the Appellant alone who was pressing the neck of the deceased with lathi. The witness further states that he was not present when the assault started but came on hearing the shouts. This is a material omission in the F.I.R. and police statement. The witness stated in Court be the first time that the other two persons were from village Harpur and were standing and watching but did not assault. The other two persons were never large-sheeted and did not face trial. The possibility that one of other two may nave pressed the neck of the deceased with lathi causing death and the appellant may have caused simple or no injury cannot be ruled out. If that be plausible, the appellant is entitled to the benefit of doubt. It was next submitted that if the Appellant was alone there is no reason why the deceased and PW-6 Darshan Singh together could not have overpowered the Appellant. It leads to be inescapable conclusion for the presence of three persons. 6. With reference to the evidence of PW-2 Sukhchain Singh and PW-3 Balbir Singh, it was submitted that they were not present when the altercation ensued and the assault started, but reached later. The conviction cannot be based on their statement as they have not spoken of the presence of the other two persons. All these facts created severe doubt with regard to the manner and nature of the occurrence including due to whose act death took place. The appellant is therefore entitled to benefit of doubt. 7. Learned Counsel for the State opposing the appeal submitted that PW-6 Darshan Singh in his Court statement has specifically named the present appellant as the person sitting astride the chest pressing the neck. The appellant is therefore entitled to benefit of doubt. 7. Learned Counsel for the State opposing the appeal submitted that PW-6 Darshan Singh in his Court statement has specifically named the present appellant as the person sitting astride the chest pressing the neck. There is no reason why he would falsely implicate the appellant especially when he knew the other two assailants also by referring to their village. 8. There existed no motive for false implication. The fact that the other two persons may not have been charge sheeted is not relevant in view of the nature of evidence available against the appellant. In the F.I.R. and the police statement, it has been mentioned also that the person was astride on the chest of the deceased and assaulted. There is no contradiction between the police statement and Court deposition to doubt credibility of the evidence. The principle of falsus in uno, falsus in omnibus will apply and only because part of the evidence of PW-6 Darshan Singh may be doubtful his entire evidence cannot be rejected if it was sufficient to base conviction. 9. We have considered the submissions made on behalf of the parties and perused the evidence on record also. 10. The basic facts of the case and the cause of death are not in dispute. The presence of three persons is a serious possibility contrary to the attempt of the prosecution to establish the presence of the appellant alone or that the other two were by-standers. It is difficult to accept that though present the other two were by standers as according to normal human behaviour they would have stepped forward at some point of time during the assault to stop the appellant from further pressing the neck of the deceased with lathi. The only question for our consideration is that who was the actual assailant of the deceased by pressing the neck and which one of them caused simple injury and which amongst them may not have assaulted at all. Can it be said with certainty that it was the appellant alone who sat on the chest of the deceased and pressed his neck with the lathi leading to death by asphyxia. Was it possible that though present, the appellant may not have caused any injury and was only involved in verbal altercation after which the other two assaulted. Can it be said with certainty that it was the appellant alone who sat on the chest of the deceased and pressed his neck with the lathi leading to death by asphyxia. Was it possible that though present, the appellant may not have caused any injury and was only involved in verbal altercation after which the other two assaulted. If there be any doubt with regard to the same, the benefit will have to go to the appellant. 11. If the Court arrives at the conclusion that the appellant was alone, the conviction will have to be upheld. But if the possibility cannot be ruled out regarding the presence of two others along-with the appellant, and if there be no direct evidence as to which one of them sat on the chest and pressed the neck or which one of them caused simple injuries and who assaulted on which part of the body and which one of them was a by-stander the submission on part of the appellant will have to be accepted. 12. We find substance in the submission that if PW-6 Darshan Singh was the brother of the deceased and the appellant was the lone assailant, the two brothers could certainly have overpowered him. Conversely, if there were three persons assaulting the deceased the prosecution has to establish which one of them assaulted the deceased causing fatal injuries. It was not a case of a premeditated assault having common intention. Each of the assailants will therefore be answerable for their individual acts. 13. We also find substance in the submission on behalf of the appellant that PW-6 Darshan Singh was not an eye-witness and that his evidence suffers from material contradictions and omissions. The witness has not stated that the F.I.R, and his police statement has not been correctly recorded except for stating that he had told the police. No question in this regard was put to the Investigating Officer. Initially he spoke of omnibus assault by three persons. Subsequently he speaks of assault by one only. There is no explanation who caused the five simple injuries. Despite knowing the identity of the other two from their village he did not disclose this fact earlier and stated that they were by standers. He does not appear to be a reliable and credible witness. Subsequently he speaks of assault by one only. There is no explanation who caused the five simple injuries. Despite knowing the identity of the other two from their village he did not disclose this fact earlier and stated that they were by standers. He does not appear to be a reliable and credible witness. True the principle of falus in uno, falsus in omnibus has been held to have no application in India, yet if the Court is unable to separate the grain from the chaff to find sufficient surviving evidence for conviction, the principle will have no application and acquittal shall follow. In our conclusion it cannot be said conclusively that the appellant was the sole assailant and there were no other assailants or that he was the one alone who had pressed the neck. Once the possibility of presence of other assailants is established and the allegations are found to be omnibus with no common intention each will be liable for his own acts. It was the duty of the prosecution to establish which one of them sat on the chest and pressed the neck, who used the simple injuries. The possibility of one of them not having assaulted at all being a distinct possibility in view of the other two not having been charge sheeted, benefit of doubt has to be given to the appellant. 14. The appeal is allowed but subject to compliance of conditions of Section 437A of Cr.P.C. The appellant shall furnish a personal bond of Rs. 20,000/- with two sureties of like amount within two months.