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2017 DIGILAW 12 (RAJ)

Pat Ram v. State of Rajasthan

2017-01-02

GOVERDHAN BARDHAR, NAVIN SINHA

body2017
JUDGMENT : GOVERDHAN BARDHAR, J. 1. The appellants who are father and the sons respectively stand convicted under Section 302/34 I.P.C. to life imprisonment with fine and default stipulation by the Additional Sessions Judge No. 2, Hanumangarh in Sessions Trial No. 64/1986 dated 26.9.1989. 2. The deceased Vidya Devi while returning to her own village on 11.8.1986 accompanied by her minor son PW-1, Lalchand aged about 13 years, after attending a condolence meeting for the death of a relative is alleged to have been dragged by the Appellants to their fields about 2.30 pm. The witness ran home to inform his father PW-2, Jagram who came to the place of occurrence accompanied by PW-3, Gangaram, uncle of the deceased. The dead body lay in the fields of the Appellants. F.I.R. Exhibit P-l was then lodged by PW-2, Jagram at 8.15 pm that Appellant No. 1 assaulted with a 'sabal' while other two had kassiya' in their hands. The third son Puran Ram had a lathi whose trial came to be separated as a juvenile. The postmortem of the deceased, Exhibit P-13 was conducted on 12.8.1986 by PW-6, Dr. Sahi Ram who found four stab wounds of the varying sizes on the back, lower left thigh, below the left knee and middle of the left leg. There were also about 12 incised wounds of varying sizes on different parts of the body coupled with abrasions and lacerated wounds opining that death occurred due to as physic caused by compression of neck due to throttling associated with shock due to external hemorrhage caused by multiple injuries and fractures. 3. Learned Counsel for the Appellants submitted that they are not the assailants and have been falsely implicated only because the dead body was found in their fields. There is no eye-witness to the assault. PW-1, Lalchand is a child witness not reliable at all as he has made conflicting statements. In any event he was only witness to the deceased having been dragged into the fields but not to any assault. The witness has further admitted that there was no pre-existing enmity between the parties. There was thus no motive for the assault. The Trial Judge has disbelieved that PW-2, Jagram and PW-3, Gangaram were eye-witnesses to the assault holding that a minimum traveling time up and down from the place of assault to the house of the witness was 40-45 minutes. There was thus no motive for the assault. The Trial Judge has disbelieved that PW-2, Jagram and PW-3, Gangaram were eye-witnesses to the assault holding that a minimum traveling time up and down from the place of assault to the house of the witness was 40-45 minutes. the assault could not have continued that long since PW-1, Lalchand went home in formed PW-2, Jagram who then came accompanied by PW-3, Gangaram. Yet without any material in support of the same, it has been held that nonetheless the Appellants kept standing near the body for 45 minutes after they had fatally vaulted the deceased till the two witnesses came, which is a highly unnatural conduct. The Trial Judge has erred in relying upon the same witnesses whom he simultaneously held to be unreliable. 4. Neither in the F.I.R. nor in the police statement recorded the very same day, PW-2, Jagram made any statement that Appellant No.l had his eyes for the wife of the witness and this story was sought to be introduced belatedly for the first time in the Court without any evidence in support of the same. It is highly unlikely that the Appellant No. 1 would have indulged in any murderous assault along with his minor son aged about 10-11 years. If the occurrence took place in the fields at 2.30 pm in the afternoon, there could have been independent witnesses available also and the reasoning of the Trial Judge that independent evidence was not required is not sustainable. 5. Learned Counsel for the State and the informant supported the conviction and urged that it stands established from the evidence of PW-1, Lalchand that the appellants dragged the deceased to their fields after which the dead body was found there. There is nothing to show any intervening circumstances or that the assailant could have been any other. Even if the Trial Judge has disbelieved 86 the former two as eye-witnesses to the assault, there is nothing wrong in the conclusion that the Appellants were the assailants because they were standing near the dead body with weapons of assault in their hands when the witnesses arrived. Even if the Trial Judge has disbelieved 86 the former two as eye-witnesses to the assault, there is nothing wrong in the conclusion that the Appellants were the assailants because they were standing near the dead body with weapons of assault in their hands when the witnesses arrived. The onus lies on the Appellants under Section 106 of the Evidence Act to demonstrate how the deceased came to be killed in their fields in the background of the fact that they were seen dragging the deceased into their fields by PW-1, Lalchand. It is therefore not a case of suspicion but an aggressive assault made by the Appellants who were defiant in nature and kept standing near the dead body. 6. We have considered the submissions on behalf of the parties and perused the evidence on record. 7. In a criminal trial, the charge has to be established beyond all reasonable doubt by the prosecution to sustain conviction. Suspicion howsoever strong cannot take place of proof. If there is any doubt that the occurrence may have taken place in some other manner of even that two views are possible, the benefit undoubtedly has to be given to the accused. The fact that PW-1, lalchand may have seen the Appellants dragging the deceased to their fields does not lead to an automatic conclusion that they alone were the assailants. It raises a suspicion only. PW-1, Lalchand is a child witness and stated he was walking ahead of his mother. The witness is alleged to have gone home and informed his father after which the two other prosecution witnesses returned The finding of the Trial Judge is that a minimum commuting time on foot by running up and down from their house to the place of occurrence was 40-45 minutes. It has rightly been disbelieved that the assault continued for forty five minutes till the two witnesses arrived to conclude that they were in fact not eye-witnesses to the assault. But having disbelieved the two witnesses on this material aspect, the Trial Judge has come to the conclusion that when the witnesses returned to the lands, the Appellants were standing there with weapons in their hands. If the assailants were father and sons respectively, it is difficult to accept going by normal human behaviour that they would have continued to stand near the dead body for long 45 minutes. If the assailants were father and sons respectively, it is difficult to accept going by normal human behaviour that they would have continued to stand near the dead body for long 45 minutes. The assault may have continued for 5-7 minutes but after that the normal human behaviour would have been to run away rather than to keep standing near the dead body and create evidence against themselves. This conclusion of the Trial Judge and on which basis alone the Appellants have been held to be the assailants is completely unfounded and devoid of any reasoning to establish the continues presence of the Appellants from the time of assault till the arrival of the witnesses. The two conclusions of the Trial Judge that these two witnesses were not reliable to the extent of their being eye-witnesses but were reliable for establishing that the Appellants kept standing near the body for 45 minutes awaiting the arrival of the two witnesses, is contradictory and unacceptable. The two witnesses clearly fell in the category of wholly unreliable witnesses and not partly reliable and partly unreliable. 8. Before the presumption under Section 106 of the Evidence Act can be invoked, the prosecution has to establish and prima facie case only after which the onus shifts to the accused. If the prosecution has not been able to establish and satisfy regarding the unnatural conduct of the Appellants in standing near the fields for 45 minutes after having fatally assaulted the deceased and there is no eye-witness to the assault the onus does not shift to the Appellants under Section 106 of the Evidence Act. The fact that the dead body may have been found in the fields of the Appellants may raise suspicion against them but which cannot amount to proof of their being the assailants. If the assault took place in the afternoon the prosecution has not led any evidence why independent evidence of assault by way of co-villagers was not available. 9. PW-1, Lalchand in his police statement recorded the next day has clearly admitted that there was no previous enmity. If the assault took place in the afternoon the prosecution has not led any evidence why independent evidence of assault by way of co-villagers was not available. 9. PW-1, Lalchand in his police statement recorded the next day has clearly admitted that there was no previous enmity. The enmity sought to be proved by PW-2, Jagram because of Appellant No. 1 having purchased lands from the daughter of PW-3, Gangaram merits no consideration because if the Appellants had already acquired title and possession to the lands much to the dislike of PW-3, Gangaram and there was no interference in their enjoyment and possession of the lands there was no occasion for them to assault. PW-1, Lalchand in his court statement has denied having told that the Appellants were carrying 'sabal' and' kassiya' and assaulting with the same. 10. In the entirety of the evidence, it is difficult to hold that the prosecution has been able to establish beyond all reasonable doubts that the Appellants alone were the assailants and that the assault may not have taken place in any other manner given the long gap of time, cannot be ruled out completely. In the circumstances, the benefit of doubt has to be given to the Appellants. The appeal is allowed. The appellants are acquitted but subject to their executing the bail bonds of Rs. 20,000/- with two sureties of like amount to the satisfaction of the Trial Judge under Section 437 A of the Code of Criminal Procedure.