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2017 DIGILAW 1149 (RAJ)

MADAN v. STATE OF RAJASTHAN

2017-05-04

DEEPAK MAHESHWARI

body2017
JUDGMENT : Deepak Maheshwari, J. This criminal revision petition has been preferred on behalf of the accused petitioners Madan and Raju @ Chhoga against the judgment dated 11.2.2005 passed by learned Special Judge (Women Atrocities & Dowry Cases) Kota in criminal appeal No.114/03 whereby learned lower appellate Court has upheld the conviction for the offences under Sections 326/149, 325, 325/149, 324/149, 323 and 323/149 I.P.C. 2. Earlier, learned trial Court vide its judgment dated 21.10.2003 has convicted the accused persons as follows :- Name of Accused Section Sentence Kalu @ Kalar 326 IPC 3 years simple imprisonment with a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months simple imprisonment additionally. Ramlal 326/149 IPC 3 years simple imprisonment with a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months simple imprisonment additionally. Madan 326/149 IPC 3 years simple imprisonment with a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months simple imprisonment additionally. Kanhaiyalal 326/149 IPC 3 years simple imprisonment with a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months simple imprisonment additionally. Raju @ Chhoga 326/149 IPC 3 years simple imprisonment with a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months simple imprisonment additionally. Ramlal 325 IPC 2 years simple imprisonment with a fine of Rs. 2,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Kalu @ Kalar 325/149 IPC 2 years simple imprisonment with a fine of Rs. 2,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Madan 325/149 IPC 2 years simple imprisonment with a fine of Rs. 2,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Kanhaiyalal 325/149 IPC 2 years simple imprisonment with a fine of Rs. 2,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Raju @ Chhoga 325/149 IPC 2 years simple imprisonment with a fine of Rs. 2,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Kalu @ Kalar 324 IPC 1 year simple imprisonment with a fine of Rs. 2,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Raju @ Chhoga 325/149 IPC 2 years simple imprisonment with a fine of Rs. 2,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Kalu @ Kalar 324 IPC 1 year simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Madan 324 IPC 1 year simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Ramlal 324/149 IPC 1 year simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Kanhaiyalal 324/149 IPC 1 year simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo three months simple imprisonment additionally. Raju @ Chhoga 324/149 IPC 1 year simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Ramlal 323 IPC 1 month simple imprisonment. Kanhaiyalal 323 IPC 1 month simple imprisonment. Raju @ Chhoga 323 IPC 1 month simple imprisonment. Kalu @ Kalar 323/149 IPC 1 month simple imprisonment. Madan 323/149 IPC 1 month simple imprisonment. All Accused 148 IPC 6 months simple imprisonment 3. Learned appellate Court reduced the sentence awarded by the learned trial Court in the following manner :- Name of Accused Section Reduced Sentence Kalu @ Kalar Died during the pendency of appeal Ramlal 326/149 IPC 1 year simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Madan 326/149 IPC 1 year simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Kanhaiyalal 326/149 IPC 1 year simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Raju @ Chhoga 326/149 IPC 1 year simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Ramlal 325 IPC 6 months simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Raju @ Chhoga 326/149 IPC 1 year simple imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to further undergo two months simple imprisonment additionally. Ramlal 325 IPC 6 months simple imprisonment with a fine of Rs. 500/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Madan 325/149 IPC 6 months simple imprisonment with a fine of Rs. 500/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Kanhaiyalal 325/149 IPC 6 months simple imprisonment with a fine of Rs. 500/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Raju @ Chhoga 325/149 IPC 6 months simple imprisonment with a fine of Rs. 500/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Madan 324 IPC 6 months simple imprisonment with a fine of Rs. 500/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Ramlal 324/149 IPC 6 months simple imprisonment with a fine of Rs. 500/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Kanhaiyalal 324/149 IPC 6 months simple imprisonment with a fine of Rs. 500/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Raju @ Chhoga 324/149 IPC 6 months simple imprisonment with a fine of Rs. 500/- and in default of payment of fine to further undergo one month simple imprisonment additionally. Ramlal 323 IPC 1 month simple imprisonment. Kanhaiyalal 323 IPC 1 month simple imprisonment. Raju @ Chhoga 323 IPC 1 month simple imprisonment. Madan 323/149 IPC 1 month simple imprisonment. All Accused 148 IPC 6 months simple imprisonment. 4. Out of four accused only two namely Madan and Raju @ Choga have preferred this revision petition. Thus, the discussion of evidence in relation to only these two accused petitioners is required to be made. 5. Madan 323/149 IPC 1 month simple imprisonment. All Accused 148 IPC 6 months simple imprisonment. 4. Out of four accused only two namely Madan and Raju @ Choga have preferred this revision petition. Thus, the discussion of evidence in relation to only these two accused petitioners is required to be made. 5. Briefly stated facts giving rise to this revision petition are that on oral information given by Satya Narain, an FIR came to be registered by Police Station Kunhadi to the effect that brother of Satya Narain namely Jagdish along with one Sardar Kulveer Singh had gone to old house of the complainant. When complainant was also going behind him, he saw a crowd standing in front of the house of Kalu @ Kalar. As soon as he reached there, Madan gave a blow on his head by sword, Gopal Mali caused a blow by 'dhariya', Ram Lal Keer inflicted injury on his right hand by 'lath'. When his brother Suraj came to rescue him, all of them assaulted him also. Kalu @ Kalar inflicted injury by knife on his hip. Madan Lal inflicted injury by sword on his right hand and Gopal Mali inflicted injury by 'dhariya' on right leg. Ram Lal, Raju @ Choga and other also caused injuries by wooden sticks. Suraj became unconscious and the accused persons took him away to their house. This incident has been seen by Sheoji Gurjar and Ram Dayal Mali. 6. After investigating the matter, a charge-sheet came to be filed against accused persons for the offences mentioned above. Learned trial Court after hearing charge arguments framed charges against the accused persons for the above-said offences. After concluding trial, the accused persons were convicted and sentenced in the manner aforesaid. 7. On preferring appeal, learned appellate Court while upholding the conviction reduced the sentence awarded to the accused persons as stated above. 8. Challenging the judgment passed by appellate Court, learned counsel appearing for the accused petitioners has contended that no independent witness has been examined by the prosecution during trial whereas injured persons have admitted during their cross examination that many of the villagers were present on the scene of occurrence. PW-6 Sheoji Gurjar, who is stated to be eye witness in the FIR has turned hostile and has not supported the prosecution story. Another eye witness Ram Dayal Mali has not been examined. PW-6 Sheoji Gurjar, who is stated to be eye witness in the FIR has turned hostile and has not supported the prosecution story. Another eye witness Ram Dayal Mali has not been examined. Only complainant PW-2 Satya Narain, his real brothers PW-3 Jagdish and PW-4 Suraj Mal have supported the prosecution story. But there is material contradiction in their statements also. PW-1 Uda Lal, PW-6 Sheoji Gurjar and PW-8 Kalu Ram have turned completely hostile. Even the Investigating Officer of the case has not been examined. Deadly weapons namely sword, 'dhariya', knife and 'lath' have not been produced in evidence by the prosecution. Site plan of the scene of occurrence has also not been proved as PW-8 Kalu Ram has turned hostile. 9. Learned counsel for the petitioner has further stated that there is material contradiction between the witnesses on the nature of injuries and the weapons allegedly used in the occurrence. Complainant PW-2 Satya Narain himself has admitted in his cross-examination that he could not say that what weapons were used by the accused persons. PW-3 Jagdish has admitted that none of the weapons, which were reported to the police to have been used by the accused persons have been produced in the Court during trial. PW-4 Surajmal has admitted in the cross-examination that only 'lathies' were used as weapon of offence and no other weapon was used during the alleged incident. All these three witnesses have admitted that there is enmity between the two parties and also admitted that cross case was filed against them in which they were given the benefit of Probation of Offenders Act. Further, learned counsel has argued that in the face of the statements given by material prosecution witnesses i.e. PW-2, PW-3 and PW-4 that only 'lathies' were used in the incident and the weapons of offence have not been produced during trial, the statement of PW-5 Dr. M.M. Sharma, who prepared the MLRs of injured persons wherein injuries are reported to have been caused by sharp edged weapons, does not appear to be reliable. In view of above, learned counsel submitted that the prosecution has utterly failed to prove the occurrence as reported in the FIR but learned Courts below, without taking note of these contradictions, have convicted the accused petitioners. Thus, the judgment passed by learned Courts below are liable to be quashed and set aside. 10. In view of above, learned counsel submitted that the prosecution has utterly failed to prove the occurrence as reported in the FIR but learned Courts below, without taking note of these contradictions, have convicted the accused petitioners. Thus, the judgment passed by learned Courts below are liable to be quashed and set aside. 10. Learned Public Prosecutor has vehemently opposed the arguments advanced by learned counsel for the petitioners. He has stated that simply because the prosecution witnesses are related to each other, their testimony cannot be discarded. PW-2, PW-3 and PW-4 have supported the prosecution case without any doubts, which has been further corroborated by PW-5 Dr. M.M. Sharma. Thus, the conviction recorded and the sentence awarded by Courts below is proper and justified. The revision petition is, therefore, liable to be dismissed. 11. I have given thoughtful consideration to the arguments advanced by both the sides and perused the impugned judgments and the evidence available on record in light of the arguments. 12. PW-1 Uda Lal has completely turned hostile and denies to have seen any occurrence. Likewise, PW-6 Sheoji, who was stated to be an eye witness in the FIR Ex.1 has also completely turned hostile and says that he has not seen any incident having taken place with Satya Narain and Surajmal. Thus, so far as the eye witnesses are concerned, only complainant PW-2 Satya Narain and his brothers PW-3 Jagdish and PW-4 Surajmal are there to corroborate the prosecution story. Scribe of FIR, PW-2 Satya Narain has stated in his examination in chief that he lodged the report Ex.1 in the police Station. The police official wrote the report as dictated by him; but in the cross-examination, he has admitted that he has simply signed the FIR, which police personnel brought to him in the hospital, which had already been written. Thus, the whole genesis of this case comes under cloud of suspicion. It has also come on record by way of the cross-examination of these interested witnesses that there had been a prolonged rivalry between the two parties. It has been admitted by them that a trial for the offence under Section 307 I.P.C. was conducted against the accused persons on account of some earlier incident reported by the complainants, in which the accused persons were acquitted. The witnesses have clearly admitted that there is an old enmity between the two sides. It has been admitted by them that a trial for the offence under Section 307 I.P.C. was conducted against the accused persons on account of some earlier incident reported by the complainants, in which the accused persons were acquitted. The witnesses have clearly admitted that there is an old enmity between the two sides. This admitted fact poses a great mark of caution for which, the evidence adduced by prosecution is to be minutely scrutinized so as to arrive at the right conclusion. On perusal of the judgments passed by Courts below, it appears that this aspect has been completely ignored and conclusion has been drawn simply on the basis of the statements given by these witnesses. If the statements of these witnesses recorded during trial are scrutinized very cautiously and minutely in light of the admitted fact of long standing inimical relations between the two sides, the plausible conclusion ought to have been arrived at appears to be otherwise. 13. Firstly, the authenticity of the FIR is under cloud as discussed above. Secondly, PW-2 Satya Narain who has stated in his examination in chief that the accused persons were armed with sword, 'dhariya', 'lath' and knife but in his cross-examination, he has admitted that he could not tell that with what weapons the accused persons were armed with. In just contrast to the statements given by PW-2 in his examination in chief, his real brother PW-4 Surajmal has categorically stated in his cross-examination that only 'lathies' were used as a weapon of offence in the incident and no other weapon was used therein. It is also an important aspect to be noted that none of the weapons which were allegedly used in the incident have been produced by the prosecution during trial despite the fact that there were allegedly recovered at the instance of the accused persons during investigation. No motbir witness of the recoveries of any of these weapons has been examined. In light of this material contradiction, it was bounden duty upon the prosecution to get the investigating officer examined during trial so as to clarify the ambiguity but unfortunately investigating officer has also not been examined. Observation made by trail Court that since the eye witnesses of the incident have clearly stated about the incident and therefore, non-examination of the investigating officer does not adversely affect the prosecution case cannot be approved. Observation made by trail Court that since the eye witnesses of the incident have clearly stated about the incident and therefore, non-examination of the investigating officer does not adversely affect the prosecution case cannot be approved. Failure to examine the investigating officer, in the circumstances stated above becomes fatal to the prosecution and goes to the root of the case. 14. PW-2 Satya Narain has stated in his examination in chief that Sheoji and Ram Dayal were eye witnesses of the incident. This fact has also been stated in the FIR Ex.P/1. But Ram Dayal has not been examined and PW-6 Sheoji has completely turned hostile. PW-4 Surajmal has also stated in his cross-examination that almost 50 persons got collected at the scene of occurrence and they intervened also, but none of such persons has supported the prosecution story. Even the site plan has not been proved by the prosecution. Though PW-8 Kalu Ram, one of the motbirs of the site plan Ex.P/10 has been examined but he has categorically denied to have prepared the site plan Ex.P/10 in his presence. 15. The Courts below have heavily relied upon the statements of complainant and his brothers on the basis that their statements have been corroborated by PW-5 Dr. M.M. Sharma, who has medically examined the injured persons and has prepared their MLRs Ex.P/3 and P/5. If the statements of PW-5 and MLRs prepared by him are looked into, it is found that injury No.2 sustained by Satya Narain, as reported in MLR Ex.P/3, is stated to have been caused by sharp edged weapon. Similarly out of the five injuries sustained by Surajmal as reported in MLR Ex.P/5, injury No.1 and 2 are reported to have been caused by sharp edged weapons. But on the contrary, injured Surajmal himself has stated in his cross examination that only 'lathies' were used by the accused persons in the scuffle and no other weapon was used. Thus, there appears a material contradiction between these two prosecution witnesses which clearly shatters the prosecution story. Secondly, as per the statements of PW-5 Dr. M.M. Sharma, injury No.6 in MLR Ex.P/5 has been reported to be grievous in nature as per x-ray report Ex.P/6. But on perusal of Ex.P/5, there are only five visible injuries and injury No.6 is "c/o (complaint of) pain in back right side". Secondly, as per the statements of PW-5 Dr. M.M. Sharma, injury No.6 in MLR Ex.P/5 has been reported to be grievous in nature as per x-ray report Ex.P/6. But on perusal of Ex.P/5, there are only five visible injuries and injury No.6 is "c/o (complaint of) pain in back right side". Even if it is presumed that there is some typographical error in quoting the number of injury and in fact the injury which was found to be of grievous in nature was of grated rockenter (hip bone), which is mentioned at Sl.No.2, then also it has been reported to be simple in nature in Ex.P/5 itself. So there appears a vital controversy in regard to the fact that which of the injuries sustained by Surajmal has been found to be grievous in nature. 16. Learned counsel for the accused petitioners has relied upon the judgment in Ram Ashrit & Ors., v. State of Bihar, reported in AIR 1981 SC 942 , which was rendered in a murder case, the Hon'ble Apex Court has held therein that "in the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristles with improbable versions and material infirmities". In the case in hand also, it is apparently clear that there has been a long standing inimical relationship between the two parties. It is also an admitted fact that a cross case was also lodged against the complainant side for the same incident. In the said cross case, the complainant side was given the benefit of Probation of Offenders Act. It is also an admitted case that despite there was presence of many other independent witnesses but none has supported the prosecution story as regards the alleged incident. It is also admitted fact that none of the weapons, which were allegedly used in the incident have been produced during trial by the prosecution. There is material contradiction in regard to nature of injuries and the nature of weapons of offence, which were allegedly used during the incident. Investigating Officer has also not been examined to make an effort to clarify the ambiguities. There is material contradiction in regard to nature of injuries and the nature of weapons of offence, which were allegedly used during the incident. Investigating Officer has also not been examined to make an effort to clarify the ambiguities. In these circumstances, the caution given by Hon'ble Apex Court in the case of Ram Ashrit (supra) is required to be adopted scrupulously while analysing the testimony given by the complainant and his brothers on the touch stone of this established legal principles. On doing so, I feel constrained to agree with the conclusion arrived at by the Courts below. The prosecution evidence cannot be found trustworthy and reliable to record the conviction of the accused petitioners in light of above infirmities and lacunae. 17. Resultantly, the criminal revision petition is allowed and the judgments dated 21.10.2003 and 11.2.2005 passed by Courts below are quashed and set aside in regard to the accused petitioners Madan Lal and Raju @ Chhoga. Both the petitioners are on bail, their bail bonds stand cancelled.