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2017 DIGILAW 1523 (RAJ)

Nandoo @ Nand Kishore v. State of Rajasthan

2017-07-10

G.R.MOOLCHANDANI, KANWALJIT SINGH AHLUWALIA

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JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. Rajendra Puri (PW-1) on 21.3.1986 at 10:15 PM, presented a written report before Mr. Dinesh Kumar (PW-16), SHO, Police Station Beawar City. On the basis of said report, a formal FIR bearing No. 55/1986 (Exhibit-P/2) was registered at Police Station Beawar City for the offence under Section 302 read with Section 149 IPC. 2. The occurrence in the present case had taken place on 21.3.1986 at about 9:00 PM. As noted earlier, written report (Exhibit-P/1) was submitted at 10:15 PM and after registration of the case, special report reached Judicial Magistrate in the same small town i.e. Beawar on 22.3.1986 at 4:50 PM. In the context of delay in reaching of special report, we shall appreciate the case of the prosecution. 3. The above said FIR was investigated and a report under Section 173 Cr.P.C. 1973 was submitted against six accused, namely Nandoo @ Nand Kishore S/o Gopi Lal, Ashok son of Mohan Lal, Raju @ Rajendra S/o Madan Lal, Bhagwan Das S/o Gopi Lal, Sita Ram son of Hukmi Chand Soni and Munna @ Munna Lal S/o Nand Lal. The report of investigation along with the accused were committed to the court of Sessions. The court of Additional Session Judge, Beawar tried the appellants for the offences under Section 148, 302/149 IPC. 4. The first charge stated that the above six accused on 21.3.1986 at 9:00 PM, constituted unlawful assembly and near the Sattu Stall on the Chang Sittar Road, committed murder of Bhawanipuri, armed with lethal weapons like Talwar (Sword) and thus, committed offence punishable under Section 148 IPC. 5. The second charge stated that on the said date and time, the accused caused injuries with Sword and thus, committed murder of Bhawanipuri, punishable under Section 302/149 IPC. 6. The accused persons pleaded not guilty and claimed trial. The prosecution commenced its evidence and examined seventeen witnesses. Thereafter, the statements of accused were recorded under Section 313 Cr.P.C. 1973 and all incriminating evidence was put to them. The accused pleaded false implication. The court of Additional Sessions Judge, Beawar, vide impugned judgment dated 28.2.1987 recorded acquittal of accused Bhagwan Das, Sita Ram and Munna @ Munna Lal. The acquittal of above said persons has not been assailed by the State of Rajasthan and same has attained finality. The accused pleaded false implication. The court of Additional Sessions Judge, Beawar, vide impugned judgment dated 28.2.1987 recorded acquittal of accused Bhagwan Das, Sita Ram and Munna @ Munna Lal. The acquittal of above said persons has not been assailed by the State of Rajasthan and same has attained finality. However, the trial court convicted and sentenced the accused namely Nandoo @ Nand Kishore, Ashok and Raju @ Rajendra for the offences under Sections 148, 302/149 IPC. 7. Having convicted the appellants for the above said offences, the trial Judge vide a separate order of even date, sentenced the appellants as under:- Section 148 IPC To undergo one year RI. Section 302/149 IPC To undergo life imprisonment and to pay a fine of Rs. 250/- each. 8. Aggrieved against their conviction and sentence, Nandoo @ Nand Kishore, Ashok and Raju @ Rajendra have preferred the present appeal. During the pendency of the appeal, the appellant Ashok died and a Division Bench of this Court on 1.4.2010 ordered abatement of the appeal qua the appellant Ashok. 9. We have already noted that as per written report (Exhibit-P/1), on the basis of which, a formal FIR (Exhibit-P/2) was registered, time of the occurrence has been noted as 21.3.1986 at 9:00 PM. A perusal of the Post Mortem Report (Exhibit-P/9), reveals that Bhawanipuri had died within fifty minutes of the occurrence, as in the post mortem report, time of death is recorded as 21.3.1986 at 9:50 PM. 10. Dr. Kailash Chand Mathur (PW-8) on 22.3.1986 at 9:30 AM, had conducted autopsy on the dead body of Bhawanipuri. In the Post Mortem Report (Exhibit-P/9), he had noted injuries on the person of Bhawanipuri, as under:- "1. Incised wound bone deep 6" x 1" Right Side of scalp. 2. Transverse Incised wound 8" x 2" extending from Pre-auricular Region to occipital region dividing right ear in two parts, muscles, blood vessels and nerves crushed and cut in pieces. 3. Incised wound post auricular region 5" x ½" exposing bones. 4. Incised wound post auricular region just upper to injury No. 3. 5. V Shaped incised wound on the ventral surface of right forearm 12" x 5" exposing bone and muscles. 6. Transverse incised wound in middle of back 6" x 2½" exposing muscles." 11. Dr. Kailash Chand Mathur (PW-8) in his examination stated that from the nature of injuries, death will be instantaneous. 5. V Shaped incised wound on the ventral surface of right forearm 12" x 5" exposing bone and muscles. 6. Transverse incised wound in middle of back 6" x 2½" exposing muscles." 11. Dr. Kailash Chand Mathur (PW-8) in his examination stated that from the nature of injuries, death will be instantaneous. This witness in his examination-in-chief used the word immediate. 12. Rajendra Puri (PW-1) in the court deposed that on 21.3.1986 at 9:00 PM, he was sitting in his house. Hemant Kumar (PW-3) came at his house and informed that his brother Bhawanipuri in a pool of blood with injuries is lying in ground of Chonga Sittar Road opposite Sattu Tea Stall. Upon information, this witness reached at the place of occurrence. Bhawanipuri was semi conscious and on asking he informed that Nandoo @ Nand Kishore, Raju @ Rajendra and Ashok have caused him injuries with Dhariya and Talwar (Sword). This witness further stated that Bhawanipuri had left home after taking his bicycle and the said bicycle was lying at the spot near the dead body. This witness had also witnessed the preparation of various memos regarding recoveries effected from the spot. 13. Chhattu Mal (PW-2) in the court deposed that police in his presence had prepared the site plan (Exhibit-P/4). 14. Hemant Kumar (PW-3) is eyewitness of the occurrence. In the court, this witness deposed that on 21.3.1986, at 8:30 PM, from the house of Rajesh and Jagdish, he was going towards market (Bazar). When he reached near Chang Gate, he saw Nandoo @ Nand Kishore, Ashok Tak, Sita Ram and Munna were sitting together. From the side of Mateshwari Hostel Bhagwandas Kumawat and Rajendra Tak were coming. At 20 steps near the Ganga Hotel, Bhawanipuri met him on bicycle. He was going towards his house. This witness stated that he saw that all the six accused were causing injuries to Bhawanipuri with sword and dhariya and accused after causing injuries ran away from the spot. This witness further stated that he went to the house of Rajendra Puri (PW-1). Thereafter, this witness alongwith Rajendra Puri came at the place of occurrence. It was stated that accused Ashok was armed with Farsi and other accused were armed with sword. 15. Rajesh Kumar (PW-4) stated that on 21.3.1986, he had seen the fight and in the said fight sword was being used. Thereafter, this witness alongwith Rajendra Puri came at the place of occurrence. It was stated that accused Ashok was armed with Farsi and other accused were armed with sword. 15. Rajesh Kumar (PW-4) stated that on 21.3.1986, he had seen the fight and in the said fight sword was being used. This witness has not named any person as accrued. 16. Jagdish Chand (PW-5) in the court also stated that on 21.3.1986, a fight had taken place in front of tea shop. This witness stated that he had not seen as to who caused injuries to whom. 17. Radhey Shyam (PW-6) had attested memos Exhibit-P/5 and Exhibit-P/6, whereby cycle, slipper, lungi and blood stained clothes of the deceased were taken into possession, respectively. 18. Ganga Dhar (PW-7) also turned hostile to the prosecution and has not supported the case of the prosecution. 19. Dr. Kailash Chand Mathur (PW-8) as earlier stated conducted autopsy on the dead body of deceased Bhawanipuri. 20. Ramniwas (PW-9) stated that police prepared the site plan (Exhibit-P/4) of the spot in his presence. 21. Constable Mitha Lal (PW-10) carried sealed packets to the Forensic Science Laboratory. 22. Ramswaroop (PW-11), Om Prakash (PW-12) and Govind Ram (PW-13) have turned hostile to the prosecution and in no way have advanced the case of the prosecution. 23. Girdhari Singh (PW-14) in the court stated that he deposited the case property in the Forensic Science Laboratory on 22.3.1986. 24. Charanjeet Kaur (PW-15) has also turned hostile the prosecution. 25. Dinesh Kumar (PW-16) being Investigating Officer proved various facets of investigation. 26. Rameshwar Prasad (PW-17) in the court stated that in his presence, the police had taken into possession the clothes of the deceased. 27. From the perusal of the above evidence, it is apparent that Rajesh Kumar (PW-4) cited as eyewitness in the court has only stated that he had seen fight and injuries were caused to Bhawanipuri with sword. This witness has not named the assailants and the accused appellants. Jagdish Chand (PW-5) another eyewitness in the court also stated that he had seen a fight in which injuries were caused with sword. This witness has also not named the accused. 28. Number of witnesses, who had participated in the investigation have turned hostile to the prosecution. This witness has not named the assailants and the accused appellants. Jagdish Chand (PW-5) another eyewitness in the court also stated that he had seen a fight in which injuries were caused with sword. This witness has also not named the accused. 28. Number of witnesses, who had participated in the investigation have turned hostile to the prosecution. Thus, the case of the prosecution rests on oral dying declaration made by deceased Bhanwanipuri to his brother Rajendra Puri (PW-1) and the ocular account, given by Hemant Kumar (PW-3). Hemant Kumar (PW-3) in the court stated that on 21.3.1986, he had seen six accused causing injuries to the deceased Bhawanipuri. Thereafter, he went to the house of brother of the deceased Rajendra Puri (PW-1) and informed him about the occurrence. 29. We find merit in the arguments advanced by Mr. Vivek Sharma, the learned counsel for the appellants that Hemant Kumar (PW-3) is a made up witness, who was introduced later. It is contended that even though Hemant Kumar (PW-3) had witnessed the occurrence, and informed Rajendra Puri (PW-1), regarding the names of the assailants, his statement (Exhibit-D/2) under Section 161 Cr.P.C. 1973 was recorded on 1.4.1986 after eight days of the occurrence. 30. Mr. B.N. Sandhu, the learned Additional Advocate General could not explain, as to why the statement of Hemant Kumar (PW-3) was recorded under Section 161 Cr.P.C. 1973 at highly belated stage. 31. In this context, delay in reaching of special report assume importance. The dead body of deceased Bhawanipuri reached the hospital on 21.3.1986 at 9:50 PM, when he was declared dead. Even though the case FIR was registered in the night, the special report reached Illaqa Magistrate on 22.3.1986 at 4:50 PM. It is undeniable fact that Beawar is a small town and the distance between house of Magistrate and court is less than one kilometer. Thus, we find that in the FIR, Rajendra Puri (PW-1) had named Hemant Kumar (PW-3) as witness, but he was not available to the investigating agency. Therefore, delay of eight days, in recording the statement under Section 161 Cr.P.C. 1973 of Hemant Kumar (PW-3), to us, is vital, especially when Hemant Kumar (PW-3) had named six persons as accused, and he has not been believed qua three acquitted accused. 32. We are conscious that before us Hemant Kumar (PW-3) is solitary eyewitness. To us, he is wholly unreliable witness. 32. We are conscious that before us Hemant Kumar (PW-3) is solitary eyewitness. To us, he is wholly unreliable witness. We cannot term Hemant Kumar (PW-3) as partly reliable or partly unreliable witness, because he has not been believed qua three acquitted accused and his statement was recorded by the investigating agency after eight days, even though he was available. 33. Now, we are left with the dying declaration made by the deceased Bhawanipuri, to his brother Rajendra Puri (PW-1). 34. Rajendra Puri (PW-1) in the written report (Exhibit-P/1) has stated that Bhawanipuri deceased was semi conscious and he feebly uttered the names of the accused persons. 35. In the written report (Exhibit-P/1), Rajendra Puri (PW-1) has stated that the deceased Bhawanipuri informed him that he was caused injuries by Nandoo @ Nand Kishore, Raju @ Rajendra and Ashok with sword and Dhariya. Hemant Kumar (PW-3) inflated number of accused and in the court named six persons as accused, who participated in the fight. 36. Be that as it may, medical evidence belie the assertion of the witness Rajendra Puri (PW-1) that Bhawanipuri could make an oral dying declaration. A perusal of the injuries, especially injury no. 2 reveals that blood vessels and nerves were crushed and cut into pieces. Injury No. 2 is an incised injury on the occipital region dividing right ear into two parts. Crush and cut of blood vessels and nerves will cause an instant death. This view of our is fortified by opinion given by the Dr. Kailash Chand Mathur (PW-8) that in the present case, death after receipt of injury will be immediate. 37. Thus, to us, Rajendra Puri (PW-1) has falsely stated that the deceased Bhawanipuri had feebly uttered names of the accused. Hence, the oral dying declaration cannot be relied upon against the appellants. 38. Once we rule out the dying declaration from the consideration, and discard the testimony of Hemant Kumar (PW-3), nothing survives in the present case, thus the prosecution has miserably failed to connect the accused with the crime. 39. Consequently, the present appeal is allowed. The conviction recorded and sentence awarded by the trial court upon the appellants is set aside and the appellants are acquitted of all the charges, forthwith.