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2017 DIGILAW 2259 (RAJ)

Ramnarayan S/o Champa Lal v. State of Rajasthan

2017-10-27

KAILASH CHANDRA SHARMA, MOHAMMAD RAFIQ

body2017
JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal is directed against the judgement of the learned Additional District Sessions Judge, Jhalawar dated 15.11.2003, who thereby convicted nine accused namely; Ram Narayan, Shiv Lal, Bal Chand, Champa Lal, Jagannath, Sujan, Badri Lal, Kanhi Ram and Onkar for offence u/s.302/149 IPC and sentenced each of them to life imprisonment with fine of Rs.1,000, in default of which, they were to further undergo rigorous imprisonment of one year. Each of them was also convicted them for offence u/s.147 and sentenced to rigorous imprisonment of one year with fine of Rs.200, in default of which, to further undergo rigorous imprisonment of three months each and also for offence u/s.148 IPC and sentenced each of them to rigorous imprisonment of two years each with fine of Rs.300, in default of which, to further undergo rigorous imprisonment of three months each. In the self same judgement, three of the accused namely; Amar Lal, Pani Bai and Shanti Bai were acquitted of the charges. One of the accused Laxmi Narayan died during trial and therefore the proceedings against him were dropped. Those nine convicted accused originally filed the instant appeal before this Court in the year 2003. The appeal was earlier decided vide judgement dated 31.7.2007 by a coordinate bench of this Court whereunder conviction and sentence awarded to accused Ram Narayan, Shiv Lal, Bal Chand, Sujan and Badri Lal was maintained. However, conviction and sentence awarded to accused-appellant Champa Lal, Jagannath, Kanhi Ram and Onkar Lal was set aside and consequently, they were acquitted of all the charges. The State Government preferred appeal against the aforesaid judgement on grant of leave, being D.B. Criminal Appeal No.543/2008, which was decided by the Supreme Court by judgement dated 13.5.2015 in the following terms: “Having perused the impugned judgment, passed by the High Court of Judicature for Rajasthan at Jaipur, dated 31.07.2007, we are of the view, that even though the statements of Poori Bai, PW1 and Geeta Bai, PW7, i.e., two principal witnesses, were discussed summarily, the conclusion draw with reference to their cross-examination has not been based on any discussion. With reference to cross-examination, the High Court had observed, that these two witnesses had made improvements, exaggerations and embellishments in cross-examination. The details of the same do not emerge from the discussion in the impugned judgment. With reference to cross-examination, the High Court had observed, that these two witnesses had made improvements, exaggerations and embellishments in cross-examination. The details of the same do not emerge from the discussion in the impugned judgment. Insofar as the reasons for recording the conviction of the appellants and the acquittal of some of the accused are concerned, the same is discussed in paragraph 7 of the impugned judgment. Paragraph 7 of the impugned judgment is reproduced hereunder: ‘On analysing the testimony of Poori Bai and Geeta Bai from the point of trustworthiness we find that it is consistent so far as the allegations against appellants Ram Narayan, Shiv Lal, Badra Lal, Bal Chand and Sujan are concerned. Participation of appellants Champa Lal, Jagan Nath, Kanhi Ram and Onkar Lal however could not be established beyond reasonable doubt. In the FIR, it was stated by Poori Bai that they inflicted lathi blows on the person of Narain whereas at the trial injuries with Ballam and Pharsi were attributed to lacchu and Onkar. Having separated chaff from the grain in the prosecution evidence, we do not find it reliable and creditworthy against appellants Champa lal, Jagan Nath, Kanhi Ram and Onkar Lal. Possibility of their over implication in the case, cannot be ruled out.’ We find no justification whatsoever for the conclusions draw, as the same are sketchy, and do not rely on the particulars of the evidence taken into consideration. For the above reasons, we are satisfied that the judgment rendered by the High Court deserves to be set aside, with reference to the appellants before this Court. Ordered accordingly. The matter needs to be remanded back to the High Court for re-examination, in consonance with the principles laid down for the disposal of first appeals. Accordingly, the case before the High Court is ordered to be restored to its original number. The High Court shall discuss the evidence, and adjudicate upon the controversy as a first appeal. The instant appeal is disposed of in the aforesaid terms.” 2. The perusal of the aforequoted judgement of the Supreme Court indicates that appeal was preferred by accused Ram Narayan, Shiv Lal, Bal Chand and Badri Lal. There is no reference to the fact whether the appeal was also preferred by accused Sujan. The instant appeal is disposed of in the aforesaid terms.” 2. The perusal of the aforequoted judgement of the Supreme Court indicates that appeal was preferred by accused Ram Narayan, Shiv Lal, Bal Chand and Badri Lal. There is no reference to the fact whether the appeal was also preferred by accused Sujan. But admittedly the State did not file any appeal against the earlier judgement of this Court whereby the accused Champa Lal, Jagannath, Kanhi Ram and Onkar Lal were acquitted. Therefore, the Supreme Court has not disturbed the earlier judgment of this court qua them. It is in this background that we have to consider the present appeal again in so far as the accused-appellant Ram Narayan, Shiv Lal and Bal Chand are concerned because it is borne out from the copy of the judgment of the Supreme Court that name of appellant Badri Lal was deleted from the array of parties vide order dated 14.12.2012 as he died during the pendency of the appeal. The conviction and sentence awarded to Sujan, having not been challenged by him, thus would remain undisturbed. 3. The facts essential for deciding the present appeal need to be noticed first of all. The first information report in the present case was registered on the basis of parcha bayan (Ex.P1) of Smt. Puri Bai, wife of deceased Narayan Tanwar, resident of Village Kushalpura, Police Station Bakani, which was recorded by the SHO at 9.30 PM on 28.4.2001 in the Government Hospital, Bakani wherein she alleged that she had gone to market of Bakani village at 6.00 pm on that day. Her husband Narayan had gone to the shop of Ram Niwas Brahmin for buying tea dust. Suddenly, Ram Narayan S/o Champa Lal, Sarpanch of the Gram Panchayat came there with his relatives, who were all armed with different kind of weapons. Ram Narayan inflicted a ‘farsi’ blow from the sharp side on the head of her husband with intention to commit his murder. On receiving such injury, her husband fell on the ground. Shiv Lal S/o Bhawani Singh Tanwar then inflicted a ‘farsi’ blow on his legs. Badri Lal son of Bhenru Tanwar inflicted a sword blow. Bal Chand S/o Heera Lal Tanwar and Sujan S/o Amar Tanwar inflicted ‘farsi’ blow on his legs. Her husband started bleeding from different parts of the body. Shiv Lal S/o Bhawani Singh Tanwar then inflicted a ‘farsi’ blow on his legs. Badri Lal son of Bhenru Tanwar inflicted a sword blow. Bal Chand S/o Heera Lal Tanwar and Sujan S/o Amar Tanwar inflicted ‘farsi’ blow on his legs. Her husband started bleeding from different parts of the body. Champa Lal, Bhawani Singh, Onkar, Mangi Lal and Jagannath gave him beating by ‘lakris’. Amar Lal Tanwar, who was present there, was instigating all the accused to kill Narayan. Smt. Puri Bai then stated in the parcha bayan that she and her sister in law (elder sister of deceased) rushed for rescue of Narayan and both of them fell on the body of Narayan and they too were subjected to beatings by ‘lakris’. Then Ram Narayan, Sarpanch and other accused fled away in their tractor. Bal Mukund, her son-Sanwariya, daughter-Mangi Bai and sister-in-law Geeta Bai have seen this incident. Nanu Ram and Kanwar Lal were also at that time present there. Smt. Puri Bai further alleged that the accused have murdered her husband because they doubted that he was responsible for burning of the fodder in their agriculture field. On informing the police, the SHO brought her husband in seriously injured condition to the hospital where he was declared brought dead. 4. On the basis of aforesaid parcha bayan, police chalked out regular first information report no.128/2001 (Ex.P18) at 10.15 pm for offence u/ss. 147, 148, 323, 341 and 302/149 IPC and commenced investigation. Police after completion of the investigation, filed charge sheet against as many as 13 accused under the aforesaid offences in the Court of Additional Chief Judicial Magistrate, Jhalawar wherefrom the case was committed to the Court of Sessions, who made over the same for trial to the Court of Additional District and Sessions Judge (Fast Track) No.4, Jhalawar. Charges for the offences under Sections 147, 148, 323/149, 341 and 302/149 IPC were framed against the accused, which they denied and claimed trial. Prosecution has in order to prove its case produced 24 witnesses and exhibited 71 documents. The accused in their examination under Section 313 Cr.P.C. alleged false implication and set up a plea of alibi alleging that some other accused have murdered the deceased Narayan. Defence examined 2 witnesses and exhibited 6 documents. On conclusion of the trial, the learned trial court has convicted and sentenced the accused-appellants as already indicated above. The accused in their examination under Section 313 Cr.P.C. alleged false implication and set up a plea of alibi alleging that some other accused have murdered the deceased Narayan. Defence examined 2 witnesses and exhibited 6 documents. On conclusion of the trial, the learned trial court has convicted and sentenced the accused-appellants as already indicated above. Hence this appeal. 5. Shri Prithviraj Singh Rajawat, learned counsel for the accused-appellants has submitted that the independent eye witnesses namely; Kanwar Lal (PW13) and Nanu Ram (PW18), who were named in the parcha bayan by Puri Bai (PW1) have both turned hostile and not supported the case of the prosecution so much so that Bal Mukund (PW8) son-in-law of the deceased has also not supported the case of the prosecution and turned hostile. The learned trial court was wholly unjustified in relying on the testimony of interested witnesses for recording conviction of the accused-appellants. The learned trial court, apart from relying Puri Bai (PW1), has also relied on statements of Mangi Bai (PW2), daughter of the deceased, Geeta Bai (PW7), sister of the deceased and Sanwariya (PW14), son of the deceased. All these witnesses have made lot of improvement on their original version inasmuch as they have made exaggeration in their statement with the sole purpose of implicating as many accused as possible. Charge sheet was filed as against 13 accused, whereas as per the postmortem report, the deceased sustained only four injuries and thus apparently, it is a case of false as well as over implication. This is evident from the statement of Smt. Puri Bai (PW1), who despite mentioning names of Bhawani Singh and Mangi Lal in the parcha bayan, has in her Court statement stated that their names were mentioned by mistake. Even her son Sanwariya (PW14) stated that names of these two accused were mentioned by mistake. This fortifies the argument of the defence that the accused have been falsely implicated. 6. Learned counsel argued that, in any case, the prosecution witnesses, especially those related to deceased, have admitted that there was political rivalry between the accused Ram Narayan and deceased Narayan as at one point of time, both contested the elections for the office of Sarpanch, Gram Panchayat, which the deceased lost to Ram Narayan. 6. Learned counsel argued that, in any case, the prosecution witnesses, especially those related to deceased, have admitted that there was political rivalry between the accused Ram Narayan and deceased Narayan as at one point of time, both contested the elections for the office of Sarpanch, Gram Panchayat, which the deceased lost to Ram Narayan. The false implication of Ram Narayan is also substantiated from the fact that the marriage of his son as well as daughter was scheduled on the day of incident, a fact admitted by Mangi Bai (PW2), Geeta Bai (PW7) and Sanwariya (PW14). It is highly improbable that a person would indulge himself in such a heinous crime on the day on which marriage of his son and daughter was scheduled to take place. 7. Shri Prithviraj Singh Rajawat, learned counsel for the accused-appellants has argued that Smt. Puri Bai in the Court statement has stated that not only her clothes but also the clothes of Geeta Bai (PW7) were soaked in the blood when they fell on the body of deceased as he was bleeding from different parts and that she told this fact to the police, yet the police did not seize their blood stained clothes. This fact speaks volumes on the conduct of the police and an advantage of this, should go to the defence. It is argued that Ram Niwas Brahmin, from whose shop the deceased Narayan was allegedly buying the tea dust, could have been the best independent witness. Therefore, an adverse inference should be drawn against the prosecution for withholding such an important witness. 8. Allegations made by the eye witnesses that all the accused caused injuries to the deceased by sharp edged weapons does not find corroboration from the medical evidence. Learned counsel in this respect referred to the statement of Dr. Radhey Shyam Mehar (PW11) and submitted that according to him, all the injuries were sustained by blunt weapon. He also stated that injury no.1 alone was sufficient in the ordinary course of nature to cause death. It is therefore argued that if one injury was responsible for the death of Narayan, it cannot be said that other accused were members of unlawful assembly and shared the common object with the principal accused, who allegedly caused the first fatal injury on the head of the deceased. It is therefore argued that if one injury was responsible for the death of Narayan, it cannot be said that other accused were members of unlawful assembly and shared the common object with the principal accused, who allegedly caused the first fatal injury on the head of the deceased. Learned counsel therefore alternatively argued that the accused-appellants could at best be taken as member of the unlawful assembly for giving thrashing/beating to deceased and if one of them has exceeded the common object, others cannot be held responsible for the same. Ram Narayan alone may be, for that purpose, held guilty since the manner in which the incident had taken place and consequential injury was found responsible for his death. Even accused-appellant Ram Narayan cannot be said to have taken undue advantage by repeating the blow and therefore his act can be at best come within the ambit of Section 304 Part-I IPC. 9. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and submitted that the learned trial court has passed a perfectly just and reasoned order. The trial court has thoroughly examined the statement of prosecution witnesses, especially the eye witnesses and rightly believed them to convict the accused-appellants. The learned trial court has made serious observations against Dr. Radhey Shyam Mehar (PW11) that he fabricated the postmortem report to indicate that not only there were four injuries sustained by him, but also the injuries sustained by him was caused by blunt weapon, whereas in the panchnama (Ex.P7), ten injuries were indicated on his one leg and five injuries were indicated in another leg and there were other contusions. There were thus total twenty injuries. Photographs of the dead body of Narayan (Ex.P20 to Ex.P24) apparently show incised wounds/cuts on the head as also in both his legs by sharp edged weapon. Dr. Radhey Shyam Mehar fraudulently prepared the postmortem report (Ex.P17) with a view to give undue advantage/benefit to the accused and, therefore, the learned trial court has directed to initiate proceedings under Section 218 of the Indian Penal Code against him and for that purpose, forwarded all the documents to the Director, Medical Health and Services for getting the sanction of the State Government under Section 197 Cr.P.C. under intimation to the Court. 10. 10. Learned Public Prosecutor has referred to the statement of Puri Bai (PW1), Mangi Bai (PW2), Geeta Bai (PW7) and Sanwariya (PW14), all the eye witnesses who have supported the prosecution case. It is also submitted that the sharp edged weapons have been recovered from accused-appellant Shiv Lal, Bal Chand and Badri Lal, but wooden sticks have been shown recovered from Ram Narayan and Sujan, apart from recoveries of other weapons from different accused, who have either been acquitted by this Court or not charge sheeted by the police. Learned Public Prosecutor therefore submitted that appeal deserves to be dismissed. 11. We have given our anxious consideration to the rival submissions and perused the material on record. 12. Smt. Puri Bai (PW1) in her parcha bayan (Ex.P1) had made categorical allegation against Ram Narayan that he inflicted a ‘farsi’ blow on the head of her husband Narayan and when he fell on the ground, Shiv Lal inflicted a ‘farsi’ blow on his legs. Thereafter, Badri inflicted a sword blow and Bal Chand and Sujan inflicted ‘farsi’ blows, on his legs. She has made allegations against Champa Lal, Bhawani Singh, Onkar, Mangi Lal and Jagannath of causing injuries by sticks (‘lakris’). When appearing as PW1 in court, Smt. Puri Bai made similar allegations against all the five accused namely; Ram Narayan, Shvi Lal, Sujan, Bal Chand and Badri Lal. She made allegations against others as well. She alleged that Ram Narayan inflicted a ‘farsi’ blow on the head of her husband and when he fell on the ground, Shiv Lal and Bal Chand also inflicted a ‘farsi’ blow on his legs. Badri Lal has inflicted a sword blow on his legs. Thereafter, Sujan inflicted a ‘farsi’ blow on his leg. Allegations were also made against Kanhi Ram of causing blow by ‘farsi’, Lacchu by ‘ballam’ on his legs, Onkar by ‘farsi’ and also that Amar Lal was instigating all these accused to commit murder of Narayan. 13. Mangi Bai (PW2), daughter of the deceased and Geeta Bai (PW7), sister-in-law of the deceased, have also made similar statement with regard to fatal injuries by sharp edged weapons against Ram Narayan on the head and Shiv Lal, Bal Chand, Badri Lal and Sujan on legs of deceased. 13. Mangi Bai (PW2), daughter of the deceased and Geeta Bai (PW7), sister-in-law of the deceased, have also made similar statement with regard to fatal injuries by sharp edged weapons against Ram Narayan on the head and Shiv Lal, Bal Chand, Badri Lal and Sujan on legs of deceased. Not only this, Sanwariya, (PW14), son of the deceased aged 10 years has also made a firm statement on the same lines as stated by his mother that first of all, Ram Narayan inflicted a ‘farsi’ blow on the head of his father and thereafter when he fell on the ground, Shiv Lal and Bal Chand inflicted a ‘farsi’ blow on his legs, Badri inflicted a sword blow and then Sujan inflicted a ‘farsi’ blow. 14. We are astonished to notice that though in the inquest memo as many as 20 injuries were shown on the body of deceased and Smt. Puri Bai (PW1), the informant-widow of the deceased has also stated that her husband sustained total 19 injuries, but apparently the Medical Officer in connivance with the accused tried to spoil this case by fabricating the postmortem report (Ex.P17), in which an incised wound 20 x ½ x 6 cm deep along the parietal surface bone on head, was shown column no.5. In column no.6 pertaining to bones and joints, fracture of left tibia upper 1/3, fracture of right leg below knee bone and fracture of left leg above knee bone was shown. Despite first injury in the column no.5 being an incised wound, Dr. Radhey Shyam Mehar made a palpably false statement in the Court that all the injuries could have been caused by blunt weapon. In the postmortem report, the cause of death was opined to be hemorrhagic shock by excessive bleeding due to multiple deep injuries on vital parts of the body (brain) (extremities), but in his statement before the Court, Dr. Radhey Shyam Mehar (PW11), though initially stated that in his opinion the cause of death was hemorrhagic shock due to various injuries sustained by the deceased, but in later part of the statement, he stated that it was hemorrhagic shock due to injury no.1 to brain, which in the ordinary course of nature was by itself sufficient to cause death. 15. 15. We are not inclined to accept the alternative argument of the defence that accused Ram Narayan alone exceeded the common object by causing fatal injury and that the other injuries are not fatal because having seen Ex.P20 to 24, photographs of the deceased, we are fully satisfied that all the injuries sustained by deceased were by sharp edged weapons as apparently cut marks are visible on the head and both legs of the deceased with clear depth and margins. Not only, therefore, the first head injury, but the other injuries by sharp edged weapon, which are quite deep and wide, were responsible for the profuse bleeding and injuries were apparently such, which could have drained the blood out of body of the deceased in a very short time. 16. We find no substance in the argument that Ram Narayan could have been falsely implicated only because marriage of his daughter and son were fixed on the day of incident. Police in the present case has shown recovery of one ‘farsi’ each vide Ex.P8 at the instance of Shiv Lal and Bal Chand vide Ex.P12 and ‘kulhari’ at the instance of Badri Lal vide Ex.P39, but we are not in the least surprised why only one ‘bans’ has been shown recovered at the instance of Jagannath vide Ex.P41 and one stick from Sujan vide Ex.P43 because in this case when Ram Narayan, who was Sarpanch of the Gram Panchayat and other accused, could manipulate the evidence in such a manner that apparently the incised wounds which are visible on the body of the deceased in the photographs, were yet shown as injuries by blunt weapon in the postmortem report and despite the fact that there were as many as 20 injuries in the panchnama, still only four injuries were shown in the postmortem report. We are not inclined to disbelieve the consistent statement of all the four eye witnesses that it was Ram Narayan, who had initiated the quarrel by first inflicting a ‘farsi’ blow on the head of deceased. We are not inclined to disbelieve the consistent statement of all the four eye witnesses that it was Ram Narayan, who had initiated the quarrel by first inflicting a ‘farsi’ blow on the head of deceased. The fact that the deceased had at one point of time contested the election against Ram Narayan, therefore, they had political rivalry, may not be proved as motive on his part for committing such offence, but the allegation of prosecution witnesses that Ram Narayan doubted that deceased was responsible for putting the fodder in their agriculture field to fire, could certainly have been the motive for the incident. Be that as it may, even otherwise, motive in a case of eye witness account looses significance. Moreover, two out of four eye witnesses namely; Puri Bai (PW1) and Geeta Bai (PW7) are injured eye witnesses, whose injuries have been proved by none other than Radhey Shyam Mehar (PW11). Smt. Puri Bai, as per her injury report (Ex.P15), has sustained five injuries and Mangi Bai, as per her injury report (Ex.P16), sustained three injuries. The fact that they were simple injuries does not in any manner dislodge the fact that they were actually and physically present at the time of incident. 17. The testimony of these two and the other two witnesses namely; Geeta Bai (PW7) and Sanwariya (PW14) cannot be discarded only because they happen to be close relatives of the deceased. Actually, the manner in which the present incident took place where the deceased was murdered in bright day light does explain why two of the witnesses namely; Kanwar Lal (PW13) and Nanu Ram (PW18) have turned hostile. Therefore, mere non (production of Ram Niwas Brahmin, the shop keeper cannot afford a basis to draw an adverse inference against the prosecution. For the same reason, if some of the accused have been acquitted or with regard to some of them, the allegations were not maintained by the prosecution witnesses in the Court, no benefit can be given to the accused against whom there is direct and specific evidence, fully corroborated by other attending circumstances. 18. We, therefore, do not find any merit in this appeal and therefore the same deserves to be dismissed. However, while concluding, we may observe that we inquired from the learned Public Prosecutor as to what action has been taken against Dr. 18. We, therefore, do not find any merit in this appeal and therefore the same deserves to be dismissed. However, while concluding, we may observe that we inquired from the learned Public Prosecutor as to what action has been taken against Dr. Radhey Shyam Mehar, on the basis of direction given by the learned trial court whereby the learned trial Judge by his letter dated 15.12.2003 while forwarding copy of the judgement along with relevant documents namely; copy of the postmortem report (Ex.P17), parcha bayan (Ex.P1), panchname (Ex.P7), photographs of dead body (Ex.P20 to 24), the statement of Dr. Radhey Shyam Mehar (PW11), the statement of eye witnesses, drew his attention towards para 22 and 23 of the judgement and requested for sanction of prosecution against him for offence u/s.218 of the Indian Penal Code. Director Medical and Health Services, Rajasthan, Jaipur by his letter dated 28.6.2004 required the Additional District Judge (Fast Track) No.4, Jhalawar to submit a format of the order of prosecution sanction along with the prosecution file and the copy of the FIR through C.M.H.O. Jhalawar. Nothing appears to have taken place thereafter. It is only recently on 21.02.2017 that the Director Medical and Health Services, Rajasthan, Jaipur has again addressed a letter to Additional District Judge (Fast Track) No.4, Jhalawar with reference to the earlier letter dated 28.06.2004 for sending the prosecution file and also a proforma of prosecution sanction order along with copy of the first information report through C.M.H.O. so that action may be taken for issuance of sanction. It is really shocking to notice the total lack of sensitivity on the part of the State authorities in taking action against the dishonest officer, who tried to subvert the course of justice for their foul designed. This Court, therefore, directs that a copy of the FIR along with copy of this order be immediately forwarded to the Principal Secretary/Secretary, Department of Personnel and the Principal Secretary/Secretary, Medical and Health Services with a further direction to them to immediately take steps for issuance of the prosecution sanction order without insisting on the proforma of the same being forwarded by the learned trial court, which in any case could not come from the Additional Sessions Judge (Fast Track) No.4, Jhalawar as the fast track courts in the State of Rajasthan stood abolished long back. Compliance report with regard to the same be filed before this Court. A copy of this order be also forwarded to District and Sessions Judge, Jhalawar for action as may be deemed necessary on his part. 19. List the matter after two months for seeing compliance.