Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 2416 (RAJ)

Ram Chandra @ Ramu Jat v. State of Rajasthan

2017-11-03

GOPAL KRISHAN VYAS, MANOJ KUMAR GARG

body2017
JUDGMENT : Gopal Krishan Vyas, J. The instant criminal appeal has been filed by the appellants under Section 374 (2) Cr.P.C., 1973 assailing the validity of judgment dated 17th of May, 2008 passed by learned Addl. Sessions Judge (FT) No. 2, Jodhpur (for brevity, hereinafter referred to as 'Trial Court') in Session Case No. 21/2005 (State of Rajasthan v. Ramchandra @ Ramu & Anr.), whereby the learned trial court convicted the accused appellants for the offences under Sections 302 and 449 of IPC and passed following sentence: 302 of IPC : Imprisonment for life along with fine of Rs. 1,000/-. In default of payment of fine, to further undergo three months' simple imprisonment. 449 of IPC : 10 years' rigorous imprisonment along with fine of Rs. 1,000/-. In default of payment of fine, to further undergo three months' simple imprisonment. 2. As per facts of the case, one Dalpat Vaishnav (PW.1) son of deceased Sh. Mangilal and Smt. Chhota Devi, submitted a written report (Ex.P/1) on 21.07.2005 at 10.45 AM at M.D.M. Hospital, Jodhpur before the LS.H.O., Police Station-Pratap Nagar, who was present in the hospital. 1,000/-. In default of payment of fine, to further undergo three months' simple imprisonment. 2. As per facts of the case, one Dalpat Vaishnav (PW.1) son of deceased Sh. Mangilal and Smt. Chhota Devi, submitted a written report (Ex.P/1) on 21.07.2005 at 10.45 AM at M.D.M. Hospital, Jodhpur before the LS.H.O., Police Station-Pratap Nagar, who was present in the hospital. In the written report (Ex.P./1) following allegations were levelled, which reads as infra: ^^lsok esa Jheku~ Fkkukf/kdkjh th] iqfyl Fkkuk izrkiuxj tks/kiqjA fo"k;% esjs eka] cki ij ryokjksa ls geyk dj tku ls ekj nsus ckcr~A egksn; th] fuosnu gS fd eSa nyir oS".ko iq= Jh ekaxhyky th fuoklh v[ksjkth dk rkykc esjs firkth Jh ekaxhyky th ,oa esjh eka Jherh NksVk nsoh ;s j?kqukFk] th dk efUnj v[ksjkt th ds rkykc ij jgrs gS esjs iM+ksl esa gh jgus okys jkew pkS/kjh] jktsUnz pkS/kjh] cnzhjke] ckcqyky] iadt ,oa xksj/ku pkS/kjh ls gekjh iqjkuh ukjktxh py jgh gSA esjs Hkrhts izeksn oS".ko us jktsUnz pkS/kjh dh yM+dh lksuw ls 'kknh dh gS ftlls os yksx vkSj T;kn ukjktxh j[kus yxs gSA vkt fnuakd 21-07-2005 dks lqcg 8-00 cts j?kqukFk efUnj esa jkew pkS/kjh] jktsUnz pkS/kjh] cnzhjke] ckcqyky] iadt ,oa xksj/ku jke] lHkh ,d jk; gksdj gkFkks esa ryokj dqYgkM+h] ydfM+;ka bR;kfn gfFk;kj ysdj tku ls ekjus ds mn~ns'; ls efUnj esa vk, tgka ij esjs firkth Jh ekaxhyky th ,oa ekrkth Jherh NksVk nsoh ds lkFk ekjihV dh ekSds ij gks gYyk lqudj yfyr] iznhi] lqjs'k ,oa uohu] lanhi tSu bR;kfn ekSds ij x;s ftUgksaus iwjh ?kVuk ns[kh gSA eqfYteku esjs firkth ,oa ekrkth dks ejk gqvk le> dj ;s yksx gfFk;kj lkFk ysdj Qjkj gks x, lwpuk feyus ij eSa ekSds ij igaqpk ogkWa iqfyl Hkh vk xbZ ekrkth o firkth ds 'kjhj ij txg txg pksVsa yxh gSa flj esa Hkh dkQh pksVsa yxh gaSA ftlls [kwc [kqu fudy dj ekSds ij iM+k gSA eSa vU; yksxksa o iqfyl ds lg;ksx ls ekrkth firkth dks eFkqjknkl ekFkqj vLirky ysdj x;k tgka ij esjs ekrk th dk nsgkUr gks x;k gS vkSj firkth xaHkhj gkyr esa gS vLirky esa HkrhZ gSaA sd/- nyir oS".ko** 3. Upon the aforesaid written report (Ex.P/1), an F.I.R. No. 337/2005 (Ex.P/27) was registered by the S.H.O., Police Station Pratap Nagar under Sections 147, 148, 149, 452, 302 and 307 of IPC and commenced the investigation. 4. Upon the aforesaid written report (Ex.P/1), an F.I.R. No. 337/2005 (Ex.P/27) was registered by the S.H.O., Police Station Pratap Nagar under Sections 147, 148, 149, 452, 302 and 307 of IPC and commenced the investigation. 4. In the hospital, postmortem of both the dead bodies of the deceased Sh. Mangilal and Smt. Chhota Devi, were conducted by the medical jurist and postmortem reports (Ex.P/28 and Ex.P/29 respectively) were prepared and given to the investigating officer for further investigation. 5. The investigating office inspected the site and prepared site inspection memo/map vide Ex.P/2. The inquest report of Smt. Chhota Devi and Sh. Mangilal (deceased) were also prepared. The 'Panchnama' of both the dead bodies were prepared vide Ex.P/5 and Ex.P/7. The clothes of the both the deceased were taken in possession vide Ex.P/8 and Ex.P/9, and thereafter, the statements of prosecution witnesses were recorded under Sections 161 Cr.P.C., 1973 6. The accused appellant, Ramchandra @ Ramu was arrested vide Ex.P/13 on 21.07.2005 and accused appellant, Babulal was arrested vide Ex.P/26 on 25.07.2005. After arrest, upon information given by accused appellant, Ramchandra @ Ramu one axe was recovered vide Ex.P/4 on 27.07.2005 and upon information given by accused appellant Babulal on 26.07.2005 one "Lathi" was recovered vide Ex.P/16. The map of place of recovery of axe was prepared vide Ex.P/15 and map of place of recovery of "Lathi" was prepared vide Ex.P/17, photographs were also taken for the purposes investigation vide Ex.P/18 to P/25. 7. The recovered articles including weapon axe and "Lathi", clothes of the deceased were sent for chemical analysis vide forwarding letter (Ex.P/30) to the FSL and in turn report (Ex.P/31) was received from the FSL. 8. On completion of investigation, the police filed charge sheet against accused appellants, Ramchanda @ Ramu and Babulal, in the court of learned Addl. Chief Judicial Magistrate No. 2, Jodhpur from where the case was committed to the court of Sessions Judge, Jodhpur for trial, but later on the case was transferred to the court of learned Addl. Sessions Judge (FT) No. 2, Jodhpur for trial. 9. Although in the written report (Ex.P/1) names of Ramchandra, Rajendra Choudhary, Badri Ram, Babulal, Pankaj and Gordhan Choudhary were mentioned and allegations were levelled against them, however, after investigation police filed charge sheet against appellants Ramchandra @ Ramu and Babulal in the court of ACJM No. 2, Jodhpur. Sessions Judge (FT) No. 2, Jodhpur for trial. 9. Although in the written report (Ex.P/1) names of Ramchandra, Rajendra Choudhary, Badri Ram, Babulal, Pankaj and Gordhan Choudhary were mentioned and allegations were levelled against them, however, after investigation police filed charge sheet against appellants Ramchandra @ Ramu and Babulal in the court of ACJM No. 2, Jodhpur. Charge against one Pankaj, was filed before the Juvenile Justice Board, as he was minor at the time of incident and no charge sheet was filed against named accused persons, viz. Rajendra Choudhary, Badri Ram and Gordhan Choudhary because as per investigating officer, no evidence came on record to implicate them with the crime. 10. The learned trial court after providing opportunity of hearing framed charges against the accused appellants under Sections 449 and 302 of IPC, but they denied the allegations levelled by the prosecution against them and prayed for trial. 11. In the trial, statements of 20 prosecution witnesses were recorded including five eyewitnesses viz. Lalit, Pradeep, Suresh, Naveen and Sandeep Jain in the FIR, but out of five eyewitnesses, three eyewitnesses viz. Sandeep Deora (PW.3), Suresh Mehta (PW.4) and Naveen Vaishnav (PW.6) turned hostile and did not support the prosecution story, whereas two eyewitnesses, namely, Lalit @ Pintu (PW.2) and Pradeep (PW.5), both grandson of the deceased, Mangilal supported the prosecution case. The statements of both these witnesses PW.2-Lalit @ Pintu and PW.5-Pradeep, under Section 161 Cr.P.C., 1973 were recorded on 24.07.2005, and prior to that, appellant Ramchandra was already arrested, but Babulal was arrested subsequently on 25.07.2005. During trial, 31 documents were exhibited to prove prosecution case. 12. The statements of both these witnesses PW.2-Lalit @ Pintu and PW.5-Pradeep, under Section 161 Cr.P.C., 1973 were recorded on 24.07.2005, and prior to that, appellant Ramchandra was already arrested, but Babulal was arrested subsequently on 25.07.2005. During trial, 31 documents were exhibited to prove prosecution case. 12. After recording evidence of prosecution witnesses, statements of both the accused appellants were recorded under Section 313 Cr.P.C., 1973 in which they denied the allegations and gave following explanation, which reads as infra: Explanation of Appellant-Ramchandra @ Ramu ^^esjs f[kykQ ifjoknh nyir oS".ko us vkilh ukjktxh dk >wBk eqdnek fd;k gSA eSaus] e`Rrdx.k ekaxhyky o NksVk nsoh ds lkFk dksbZ ekjihV ugha dh rFkk u gh mudh gR;k dhA rFkkdfFkr ?kVuk okys fnu lqcg 7-30 cts eSa] jes'k iq= ca'khyky ekyh ds lkFk viuh eksVj lkbZfdy ij cSBdj dke ij pyk x;kA bl ?kVuk dh tkudkjh nksigj 3-00 cts gqbZ Fkh fd fdlh us ekaxhyky o NksVk nsoh dh gR;k dh gSA xokgku iznhi o yfyr e`Rrdx.k ds iksrs gSa tks >wBs xokg cuk;s x;s gSa tcfd eq>s Kkr gqvk fd ;s ekSds ij ugha FksA eq>s >wBk Qalk;k gSA eSa funksZ"k gwaA Explanation of Appellant - Babulal ^^esjs f[kykQ ifjoknh i{k us vkilh ukjktxh ds dkj.k >wBk eqdnek cuk;k gSA eSaus] e`Rrdx.k ekaxhyky o NksVk nsoh ds lkFk ekjihV dj mudh gR;k ugha dhA rFkkdfFkr ?kVuk ds fnu o le; eSa ?kVuk LFky ij ekStwn ugha FkkA ml fnu lqcg djhc 7-15 cts lkbZfdy ysdj dke ij tkus gsrq ges'kk ds ekfQd 5oha jksM+ pkSjkgs ij Bsdsnkj v0 oghn ds ikl vk x;k fQj ;gka ls dke ij pyk x;kA iznhi o yfyr e`Rrd ds iksrs gS tks >wBs xokg cusA eq>s >wBk Qalk;k x;k gS] eSaus dksbZ ?kVuk dkfjr ugha dhA eSa funksZ"k gwaA** 13. In defence, the accused appellants examined five defence witnesses viz. DW.1-Ramesh, DW.2-Abdul Wahid, DW.3-Rajendra Mathur, DW.4-Shashikant and DW.5 Ganpatlal Dave and got exhibited 16 documents in their defence. 14. The learned trial court after recording evidence of both the sides finally heard the arguments and held the accused appellants guilty for offence under Sections 302 and 449 of IPC vide impugned judgment dated 17.05.2008. In this appeal both the appellants are assailing the judgment impugned on various grounds. 15. 14. The learned trial court after recording evidence of both the sides finally heard the arguments and held the accused appellants guilty for offence under Sections 302 and 449 of IPC vide impugned judgment dated 17.05.2008. In this appeal both the appellants are assailing the judgment impugned on various grounds. 15. Learned counsel for the appellants vehemently argued that entire prosecution case is based upon the oral evidence of 20 prosecution witnesses, in which five witnesses are the eyewitnesses, three witnesses turned hostile and out of five eyewitnesses, only two eyewitnesses viz. PW.2 Lalit @ Pintu and PW.5-Pradeep, supported the prosecution case but presence of both these eyewitnesses is seriously doubtful because both are interested witness being grandsons of deceased and not residing with the deceased. It is also argued that in the FIR, allegations were levelled against six persons, whereas after investigation charge sheet was filed only against three accused persons, viz. appellants Ramchandra @ Ramu, Babulal in the court of learned ACJM No. 2, Jodhpur and another charge sheet against juvenile Pankaj before the Juvenile Justice Board, as he was minor at the time of incident. 16. The argument of the learned counsel for the appellants is that the FIR was filed by the son of the deceased found to be false against three persons, therefore, it is obvious that the entire prosecution story is fabricated story based upon planted witnesses viz. PW.2 Lalit @ Pintu and PW.5-Pradeep. It is further submitted that as per FIR, a dispute arose in between the parties because Ms. Sonu (PW.14) the daughter of Rajendra Choudhary fallen in love with PW.12-Pramod Vaishnav (grandson of the deceased) and got married with him five months prior to the date of incident, therefore, it was strong motive in between the parties. It is further submitted that as per FIR, a dispute arose in between the parties because Ms. Sonu (PW.14) the daughter of Rajendra Choudhary fallen in love with PW.12-Pramod Vaishnav (grandson of the deceased) and got married with him five months prior to the date of incident, therefore, it was strong motive in between the parties. It is further argued that prosecution led evidence with regard to land dispute in between the parties, but it is very strange that Sonu (PW.14) daughter of Rajendra Choudhary, specifically made allegations against her father, Rajendra Choudhary, who gave threat to her and her in-laws family but during investigation police found the said allegations to be false against the father, Rajendra Choudhary and thus exonerated him and filed charge sheet only against accused appellants Ramchandra @ Ramu, Babulal (uncle of Sonu) and Pankaj (cousin brother of Sonu) only admittedly they are residing separately, therefore, the allegation of motive has not been proved by the prosecution beyond reasonable doubt, but error has been committed by the evidence of trial court to accept the said evidence of motive without any corroboration. 17. With regard to other motive of land dispute, it is argued that there is no documentary or oral evidence on record to prove the enmity in between the parties relating to any land dispute. In fact, civil and criminal were instituted against deceased Sh. Mangilal and his other family members by the members of "Oswal" community because they wanted to dispossess him from the temple. It is also argued that owner and hotel of Lake Palace View was also having ill will against the deceased, therefore, it is obvious that it was a blind murder case but without making any investigation from other persons with whom the land dispute of deceased Sh. Mangilal, was going on and falsely implicated the appellants with the crime only on the basis of statements of PW.14-Sonu, who allegedly solemnized love marriage with Pramod Vaishnav (PW.12) grandson of the deceased, therefore, the finding of learned trial court so as to accept the evidence of motive of love marriage of Sonu with Pramod, the grandson of deceased, therefore, a totally false case was registered without any trustworthy or reliable evidence. 18. Learned counsel for the appellants, Mr. J.S. Choudhary, Sr. 18. Learned counsel for the appellants, Mr. J.S. Choudhary, Sr. Advocate vehemently submitted that as per prosecution story in the morning of 21.07.2005, there was some small ceremony for newly purchased motorcycle at the house of Kishan Vaishnav (PW.13) and both the deceased went there to participate in the said ceremony and as per prosecution case, PW.2-Lalit @ Pintu took both the deceased on his motorcycle and went to drop them at their residence. In view of the specific fact of family function, it was the duty of the prosecution to prove the fact whether on that date i.e. on 21.07.2005 any family function as solemnized purchasing new motorcycle. According to learned counsel for the appellants, motorcycle was purchased by Pramod (PW.12) on 22.07.2005 i.e. after next date of the incident. In support of above fact, it is argued that a Bill of purchasing motorcycle is placed on record in defence before the trial court, however, learned trial court did not consider the said document and erroneously held the accused appellants guilty for the offence of murder. Therefore, it is a case in which the prosecution has fabricated a concocted story so as to implicate the appellants falsely with the crime without making proper investigation from other persons with whom there was land dispute and litigation was going on. 19. Learned counsel for the appellants further invited our attention towards the fact that as per statements of PW.13-Kishan Vaishnav, a family function was organized at his house on 21.07.2005 in the morning but as per statements of DW.3-Rajendra Mathur, Lower Division Clerk, working in the office of R.T.O., Jodhpur and deposed in his statement that motorcycle bearing registration number RJ-19-SB-5209 was purchased by Pramod Vaishnav S/o Kishan Vaishnav, vide Bill (Ex.D/17) dated 22.07.2005 and proved the document sales certificate Ex.D/18, insurance cover note Ex.D/19 and registration certificate Ex.D/20. As per defence counsel, a false story was concocted by the prosecution so as to implicate the appellants with the crime. As per defence counsel, a false story was concocted by the prosecution so as to implicate the appellants with the crime. It is argued that although PW.14-Sonu, niece of accused appellant Ramchandra @ Ramu got married with Pramod (PW.12) grandson of the deceased, but there was no question of any enmity with appellant Ramchandra because allegations were levelled by Sonu in her statements against her father Rajendra Choudhary, and no allegation was levelled against accused appellants Ramchandra or Babulal, therefore, it is a case in which the prosecution has concocted a false story and after planting close relatives as eyewitnesses of the incident, filed charge sheet against the accused appellants but the learned trial court completely failed to consider the aforesaid evidence and erroneously held the accused appellants guilty on the basis of testimony of planted eyewitnesses PW.2 Lalit @ Pintu and PW.5-Pradeep. Therefore, there is no doubt that the prosecution has failed to prove any motive. The learned counsel for the appellants submits that as per site plan of the place of occurrence, and as per statements of both these eyewitnesses PW.2-Lalit @ Pintu, and PW.5 Pradeep, it was not possible for them to see the incident from the place where they were standing. It is thus submitted that presence of both these eyewitnesses is seriously doubtful but both these witnesses are treated as star witness to prove the prosecution case by the learned trial court. In fact, they were not eyewitnesses nor they can be termed as eyewitnesses because their presence was not shown in the site plan or in any other documents prepared at the place of occurrence. 20. The statements of both the witnesses were recorded under Section 161 Cr.P.C., 1973 on 24.07.2005 but prior to that, there was no eyewitness of the incident and, therefore, the entire prosecution case based upon testimony of two eyewitnesses i.e. PW.2 Lalit @ Pintu and PW.5 Pradeep cannot be treated to be trustworthy or reliable because there are major contradiction and omissions, therefore, on this ground alone the finding arrived at by the learned trial court deserves to be quashed. 21. 21. Learned counsel for the appellants invited our attention towards the fact that statements of PW.2-Lalit @ Pintu and PW.5-Pradeep under Section 161 Cr.P.C., 1973 were recorded on 24.07.2005, wherein both the witnesses stated that before recording their statements, the incident was not reported by them to any person except family members. Even the incident was not reported to the investigating officer. It is further argued that if PW.2 Lalit @ Pintu and PW.5 Pradeep were present at the place of occurrence, then why they did not make any cry because as per their statements, appellants were resorting their grandfather and grandmother and both young person neither intervened nor called any neighbour for help and keep mum while standing behind the "Chhatri" No. 3 of the temple. The witness PW.5-Pradeep stated that he did not enter in the premises and while throwing sweet packet on the gate, ran away from the place of occurrence, therefore, the conduct of both these witnesses, is seriously doubtful and as a result of which their presence is also seriously doubt. 22. With regard to recovery of weapon, it is submitted that as per prosecution case, accused appellant Ramchandra @ Ramu was arrested vide Ex.P/13 and accused appellant Babulal was arrested vide Ex.P/26. The SHO, Police Station Pratap Nagar, PW.19-Murlidhar Kiradu, recorded information under Section 27 of the Evidence Act of the accused appellant Ramchandra with regard to recovery of axe vide Ex.P/28 and in pursuance of that information, recovered axe vide Ex.P/14 from open place. Similarly, witness PW.19-Murlidhar Kiradu, S.H.O. of Police Station-Pratap Nagar, recorded the information of accused appellant Babulal under Section 27 of the Evidence Act vide Ex.P/29 and in pursuance of that information recovered one "Lathi" vide Ex.P/16 from open place. The Motbir witnesses of recovery viz. PW.8-Sandeep Deora did not support the prosecution case and he was declared hostile. 23. Both the weapons viz. axe and 'Lathi' were recovered as per information given by the accused appellants and the same were sent to FSL for chemical analysis but as per FSL report (Ex.P/31) though human blood was found but the blood ground was not matched, therefore, recovery of axe and "Lathi" cannot be used as evidence to connect the accused appellants with the crime. 24. Lastly, it is argued that FIR was registered upon written report furnished by PW.1-Dalpat Vaishnav. He is son of both the deceased. 24. Lastly, it is argued that FIR was registered upon written report furnished by PW.1-Dalpat Vaishnav. He is son of both the deceased. PW.-13 Kishan Vaishnav is also son of deceased. PW.2 Lalit @ Pintu and PW.5-Pradeep, PW.12 Pramod Vaishnav, PW.7-Gajendra Vaishnav are also close relatives of the deceased, therefore, it is obvious that the entire prosecution case accepted by the trial court is based upon testimony of closely relative and interested witnesses, therefore, their testimonies cannot be believed so as to connect the accused appellants with the crime. 25. As per argument of the learned counsel for the appellants, the place of occurrence is situated in urban area where so many temples are also situated. The place where the occurrence had taken place is temple, where number of persons visit for worship and this fact is accepted by the witnesses. The temple in which occurrence took place, is situated at the corner of "Akhedraj Ji-Ka-Talab", where number of persons are coming in the morning for walking but the prosecution has not produced any independent witness to be support the prosecution case. Rather it is a case in which the prosecution has not only suppressed or hide the actual incident but also crated as false evidence, which is seriously doubtful and, therefore, the judgment impugned deserves to be quashed. In support of his arguments, learned counsel for the appellants invited our attention towards following judgments: 1. Badam Singh v. State of M.P. reported in 2005 SCC (Cri.) 861. 2. State of Punjab v. Sucha Singh reported in 2003 SCC (Cri.) 856. 3. Danmal v. State reported in 1992 (1) RLW 250 4. Bapu v. State of Rajasthan reported in 2010 (2) Cr.L.R. (Raj.) 1229. 5. Hansiya v. State of Rajasthan reported in 1984 RLW 731. 6. Banwari Lal v. State of Rajasthan reported in 1992 Cr.L.R. (Raj.) 92. 7. Jalal v. State reported in 1984 RCC 274. 8. Peerulal v. State of Rajasthan reported in 1987 Cr.L.R. (Raj.) 183. 9. Meharaj Singh v. State of U.P. reported in 1995 Cr.L.J. 457 10. Hakumat Rai v. State reported in 1987 Cr.L.R. (Raj.) 718. 11. Ram Kumar v. State reported in 1988 RCC 65. 26. Per contra, learned Public Prosecutor and learned counsel for the complainant vehemently opposed the submissions made by the learned counsel for the appellants. 9. Meharaj Singh v. State of U.P. reported in 1995 Cr.L.J. 457 10. Hakumat Rai v. State reported in 1987 Cr.L.R. (Raj.) 718. 11. Ram Kumar v. State reported in 1988 RCC 65. 26. Per contra, learned Public Prosecutor and learned counsel for the complainant vehemently opposed the submissions made by the learned counsel for the appellants. Learned Public Prosecutor submits that it is a case in which the whole incident has been proved by the two eyewitnesses, who were very much present at the time when incident took place. 27. As per evidence on record, on 21.07.2005 in the morning, there was a family function at the residence of PW.-12 Kishan Vaishnav as a motorcycle was purchased by his son, Pramod, and in that family function, both the deceased, namely, Mangilal and Smt. Chhota Devi, went there; and after function witness PW.2-Lalit @ Pintu, upon his motorcycle took Mangilal, his grandfather and Smt. Chhota Devi, his grandmother to drop them at Raghunath temple, where they were residing. The said witness categorically stated that when they entered inside the house and opened the lock, at that time, noise of filthy word were heard by them and he saw that on street where accused Ramchandra @ Ramu, Babulal and Pankaj armed with weapon viz. "Lathi" and axe were coming. All the three persons entered into the house and assaulted both the deceased, Mangilal and Smt. Chhota Devi. It is specifically stated by the said witness on oath that accused appellants Ramchandra @ Ramu, and Babulal both gave beatings to his grandmother and grandfather. Other accused Pankaj also gave beating to them, who was present in the court. According to said witness due to fear, he hide himself in the nearby area into the premises known as old "Chhatri" of the temple. After sometime, said witness came out from the "Chhatri" and immediately went to call his father and mother. It is specifically stated by this witness that all these persons first killed his grandmother in the centre of the Chowk and thereafter forcibly took his grandmother towards temple of Balaji, at that time the said witness left the place to call his father and mother. According to this witness, the incident was reported by him to his father and his father gave information to police. According to this witness, the incident was reported by him to his father and his father gave information to police. Likewise, gave information to his elder father Dalpat Ji, who also came on the spot when all of them came there. At that time, they found number of injuries upon the body of deceased Mangilal and Smt. Chhota Devi and blood was oozing out from the injuries caused to both of them and both were unconscious. Mangilal and Smt. Chhota Devi were taken to hospital, where they died. 28. Learned Public Prosecutor submitted that argument of learned counsel for the appellants that this witness is planted witness, has no strength because the incident was reported by him to the complainant, Dalpat (PW.1) promptly (his elder father) PW.1 and the FIR was also submitted by him in the hospital, in which the aforesaid facts were disclosed upon information given by him. Therefore, the presence of witness PW.2-Lalit @ Pintu cannot be disbelieved solely on the ground that there is some contradiction in the statements of PW.1-Dalpat and PW.2-Lalit @ Pintu. 29. While inviting our attention towards the statements of PW.5-Pradeep, another eyewitness, it is submitted that testimony of this witness who has proved the fact that after completion of family function in the morning at the house of Shrikishan Vaishnav, father of PW.2 Lalit @ Pintu, this witness went to the residence of his grandfather because his uncle Shrikishan Vaishnav asked him to take sweets and bring that sweet to the house of his grandfather. Upon above instructions this witness went to the residence of the deceased at Raghunath temple, when PW.5-Pradeep reached outside the house of deceased Mangilal, the accused appellants Ramchandra @ Ramu and Babulal were beating his grandfather and grandmother by "Lathi" and axe. At that time though he was standing outside the house, but at the time of incident he was present at the place of incident. Therefore, presence of this witness has been proved by the prosecution, therefore, the learned trial court relied upon the testimony of this witness so as to convict the accused appellants for the alleged crime of murder. Both the witnesses and PW.1 author of FIR, categorically prove the fact that on 21.07.2005 in the morning accused appellants caused serious injuries to the deceased Mangilal and Smt. Chhota Devi and due to number of injuries both died in the hospital. Both the witnesses and PW.1 author of FIR, categorically prove the fact that on 21.07.2005 in the morning accused appellants caused serious injuries to the deceased Mangilal and Smt. Chhota Devi and due to number of injuries both died in the hospital. The witness PW.1-Dalpat Vaishnav (author of the FIR), PW.2-Lalit @ Pintu S/o Shrikishan Vaishnav, PW.5- Pradeep S/o Dalpat, PW.12-Pramod Vaishnav S/o Shrikishan Vaishnav, PW.13-Shrikishan Vaishnav, son of both the deceased and PW.14-Sonu W/o Pramod, categorically proved the incident and motive for causing death of both the deceased persons. Thus, the trial court while relying upon statements of these witnesses including eyewitness came to the conclusion that prosecution has proved its case beyond reasonable doubt on the basis of testimony of two eyewitness viz. PW.2-Lalit @ Pintu and PW.5-Pradeep, which is further corroborated by medical evidence and investigation. Therefore, all the arguments advanced by the learned counsel for the appellants that prosecution has failed to prove its case beyond reasonable doubt because the entire prosecution case is based upon planted eyewitnesses, has no strength so as to disturb the finding of conviction recorded by learned trial court. 30. With regard to motive, it is submitted that PW.14- Sonu, is the daughter of Rajendra Choudhary, real brother of accused appellant Ramchandra @ Ramu, fall in love with Pramod (PW.12) S/o Shrikishan Vaishnav. According to prosecution, Pramod is grandson of deceased Mangilal and Smt. Chhota Devi, and since Sonu (PW.14) solemnized marriage with Pramod, and both belongs to different cases, therefore, there was enmity between the parties, and it was the motive for the appellants and their family to cause death of Mangilal and Smt. Chhota Devi. It is also argued that as per statements of all the witnesses, there was a land dispute in between family of the appellants and the deceased Mangilal, situated near the pond (Akheraj Ji Ka Talab), where number of temples are also in existence. It is also argued that as per statements of all the witnesses, there was a land dispute in between family of the appellants and the deceased Mangilal, situated near the pond (Akheraj Ji Ka Talab), where number of temples are also in existence. While inviting our attention towards statements of PW.14-Sonu, daughter of Rajendra Choudhary, brother of appellant Ramchandra @ Ramu, it is submitted that Sonu being family member of accused party, stated on oath before the court that after her love marriage with Pramod, the relationship of both the families become inimical and both the parties become enemy of each other, which resulted into the incident, which occurred on 21.07.2005 in the morning in which the accused appellants inflicted injuries and caused death of deceased, Mangilal and Smt. Chhota Devi, grandfather and grandmother of Pramod. Therefore, it is obvious that the prosecution has led evidence to prove motive of accused party and this fact is established from the statements of PW.14-Sonu W/o Pramoad, daughter of Rajendra Choudhary, brother of accused appellant Ramchandra @ Ramu. 31. Learned Public Prosecutor further argued that family of appellants is belonging to Choudhary community, whereas the family of complainant and deceased belongs to Vaishnav caste, which is altogether different but the due to love marriage of Sonu and Pramod (PW.12), a motive arose for conflict and due to said reason, soon after the love marriage in the month of April, 2005, the accused party killed two old family members of Pramod and after investigation, the police filed charge sheet and prosecution proved its case beyond reasonable doubt so as to connect the appellants with the crime. Therefore, there is no question to disbelieve the testimonies of two eyewitnesses as well as other witnesses of prosecution. Learned Public Prosecutor further argued that although the place where incident took place is a public place and many temples are situated in the area, where number of persons are visiting for worship in the morning, but it is usual practice that nobody come out to give statements but other three witnesses who were named as an eyewitness in the charge sheet PW.3-Sandeep, PW.4-Suresh Mehta, & PW.6-Naveen Vaishnav though turned hostile, but all these witnesses accepted the fact that they are knowing deceased, Mangilal and Smt. Chhota Devi, who were "Pujari" of Raghunathji temple. All these witnesses accepted the incident occurred on 21.07.2005 in the morning at 8'O Clock, but they saw that 3-4 persons were there to whom they did not identify. Meaning thereby, the independent witnesses are proving the incident. At the place of occurrence on 21.07.2005, in which two persons viz. deceased, Mangilal and Smt. Chhota Devi were assaulted but they are not identifying the accused appellants due to fear. Therefore, the argument of the learned counsel for the appellants that these independent witnesses turned hostile, is not relevant so as to accept the prosecution case based upon testimonies of two eyewitnesses. 32. Learned Public Prosecutor while attacking upon the argument that statements of eyewitnesses were recorded late on, it is submitted that all the incident was reported by the author of FIR, in his written complaint and subsequently some time consumed for investigation of spot, but just after three days of the incident, statements of the eyewitnesses were recorded, therefore, it cannot be said that the whole prosecution case is upon concocted story. 33. With regard to argument of learned counsel for the appellants that presence of eyewitness is not shown in the site plan by the investigating agency, it is submitted that statements of eyewitnesses were recorded on 24.07.2005 and before that site plan was already prepared on the spot and other documents like 'Panchnama' and details of place of occurrence was already prepared. Therefore, it was not possible for the investigating officer to record the details of the incident in those documents because statements of both the eyewitnesses under section 161 Cr.P.C., 1973 were recorded after preparation of site plan and other documents of place of incident. The argument of the learned Public Prosecutor as well as counsel for the complainant is that no benefit or advantage can be given to the defence for the reason that statements of eyewitness were recorded after three days and presence of the eyewitnesses on the placed of occurrence was not disclosed in the site plan. 34. The crux of argument of learned Public Prosecutor and learned counsel for the complainant is that two old persons were killed with motive by the appellants, therefore, the finding of conviction recorded by the trial court deserves to be upheld because the prosecution has proved its case beyond reasonable doubt on the basis reliable and trustworthy evidence. Therefore, this appeal may kindly be dismissed. 35. Therefore, this appeal may kindly be dismissed. 35. After hearing the learned counsel for the parties, we have perused and considered the entire evidence, so also, considered the arguments of both the parties. 36. In this case, following points/questions emerges for consideration: 1. Whether the finding of conviction recorded by the trial court upon the testimony of two eyewitnesses viz. PW.2 Lalit @ Pintu and PW.5-Pradeep, as eyewitness, has rightly been accepted/relied upon by the trial court. 2. Whether motive is proved. 3. Whether any evidence is on record to prove enmity between the parties. 4. Whether any ceremony was organized for purchasing motorcycle in the morning of 21.07.2005. 5. Whether on the basis of contradictions, omissions and conduct of the witnesses, story of prosecution can be disbelieved. 6. Whether recovery of weapon is proved. 37. Upon perusal and consideration of entire evidence, it is revealed that a written report (Ex.P/1) was submitted by the witness PW.1-Dalpat Vaishnav in the morning at 10.45 AM against six accused persons, namely, Ramu Choudhary, Rajendra Choudhary, Bardi Ram, Babulal, Pankaj and Gordhan Choudhary and made allegations that his father and mother, Sh. Mangilal and Smt. Chhota Devi were brutally murdered. The incident was occurred on account of previous enmity and also on account of the fact that daughter of Rajendra Choudhary, solemnized inter-caste marriage with Pramod, grandson of the deceased Sh. Mangilal and Smt. Chhota Devi, which was not agreeable to the family members of the accused persons. All the accused persons were armed with dead weapon viz. sword, axe and "Lathi/s" killed Sh. Mangilal and Smt. Chhota Devi (deceased). On hearing the commotion, Lalit, Pradeep, Suresh, Naveen and Sandeep Jain also came on the spot. The accused persons after inflicting injuries on the person of deceased Sh. Mangilal and Smt. Chhota Devi, ran away from the spot while believing that Mangilal and Smt. Chhota Devi are died. It was further averred that on receiving the information, he (complainant) reached on the place of incident and police also came there. Various injuries were there on the person of Sh. Mangilal and Smt. Chhota Devi, who were taken to hospital (M.D.M, Hospital Jodhpur) with the help of police, where his mother expired and condition of his father was very critical. 38. Various injuries were there on the person of Sh. Mangilal and Smt. Chhota Devi, who were taken to hospital (M.D.M, Hospital Jodhpur) with the help of police, where his mother expired and condition of his father was very critical. 38. Upon perusal of aforesaid written complaint, it is obvious that the complainant gave report on the basis of information given to him by PW.2-Lalit @ Pintu, PW.4-Suresh, PW.6-Naveen and PW.3-Sandeep Jain. The witness was not present at the time of incident, but he has specifically named those persons who were present at the time when occurrence took place. During trial, statements of Lalit @ Pintu (PW.2), Pradeep (PW.5), Suresh Mehta (PW.4), Naveen Vaishnav (PW.6) and Sandeep Jain (PW.3) were recorded as eyewitness but PW.3-Sandeep Jain, Suresh Mehta (PW.4), Naveen Vaishnav (PW.6) turned hostile but those witnesses categorically stated that some incident took place on 21.07.2005 at Raghunathji temple situated upon the bank of Akheraj Ji Ka Talab, wherein deceased, Mangilal and Smt. Chhota Devi were assaulted by some persons and due to those injuries, they were lying in the temple in unconscious state. The family members came on the spot and bring them to hospital for treatment, but eyewitness viz. PW.2-Lalit @ Pintu specifically stated in his statements that on the date of incident i.e. 21.07.2005, after completion of small function at his residence for purchasing motorcycle, he went on the motorcycle to drop his grandfather Mangilal and grandmother Smt. Chhota to their residence at Raghunathji temple at Akheraj Ji Ka Talab; and when they reached Raghunathji temple, they saw that from the street side, accused appellant Ramchandra @ Ramu, Babulal and Pankaj were coming having "Lathi" and axe and inflicted injuries to his grandfather and grandmother in the Chowk of the temple and due to fear he hide himself in "Chhatri" of the temple and saw the incident. No doubt that statements of this witness were recorded under Section 161 Cr.P.C., 1973 on 24.07.2005 vide Ex.D/10. 39. In his statements, it specifically stated by him that accused appellants, Ramchandra @ Ramu, Babulal and one Pankaj, who were residing near the temple, came there having "Lathi" and axe in their hands and entered into the temple and inflicted injuries to the deceased. 39. In his statements, it specifically stated by him that accused appellants, Ramchandra @ Ramu, Babulal and one Pankaj, who were residing near the temple, came there having "Lathi" and axe in their hands and entered into the temple and inflicted injuries to the deceased. The said witness has categorically reiterated his statements in the court also and made same allegations which were levelled by him in his statements recorded under section 161 Cr.P.C., 1973 It is true that statements of this witnesses were recorded after three days from the date of incident, though they were present for the purpose of investigation. The presence of this witness cannot be questioned solely on the ground that some documents are produced in defence by the appellants to show that motorcycle was purchased by Pramod on 22.07.2005, whereas function was organized on 21.07.2005 that too not in the presence of Pramod. In our opinion, the presence of this witness cannot be question because relationship of this witness with deceased Mangilal and Smt. Chhota Devi as grandson, is proved and not in dispute. It is also obvious that a grandson can go for to drop his grandfather and grandmother after function being organized in his house. 40. Learned counsel for the appellants has tried to demonstrate before us that on the date of incident, no such function was organized but we are not inclined to accept the said argument of learned counsel for the appellants that bill of purchasing motorcycle is of dated 22.07.2005 because is possible for the purchaser to organize a function before purchasing a new motorcycle at a particular "Muhurt" and to obtain bill on the next date. 41. On the basis of above discussion, it emerges from the evidence that counsel for the appellants has tried to demonstrate before us that on the date of incident, no such function or ceremony was organized, but we are not inclined to accept the said argument of the learned counsel for the appellants on the ground that bill/invoice of the purchasing motorcycle was in the name of Pramoad, that too, was on 22.07.2005 as it is usual practice that prevailing in the purchasing of motorcycle that purchaser can take motorcycle first and obtain bill on next date or other day. Here in this case, purchasing of motorcycle is not disputed but the only contention is that as per photostat copy of bill/invoice (Ex.D/17) produced in defence, the motorcycle was purchased on 22.07.2005 from Raja Motors, Jodhpur but we cannot lose sight of the fact that there is document Ex.P/34, which is delivery Challan issued by Raja Motors, Jodhpur whereby delivery of motorcycle was given on 20.07.2015, the date before the incident took place. Therefore, we are not inclined to accept the arguments of learned counsel for the appellants that prosecution case is false for the reason that the motorcycle was purchased on 22.07.2005 and as per prosecution case a function/ceremony was organized on 21.07.2005. 42. Now, we are examining the contention of learned senior advocate whether the presence of eyewitness viz. Lalit @ Pintu (PW.2) and Pradeep (PW.5) is doubtful. It is true that as per charge sheet, five persons were shown as eyewitness of the incident, namely, Lalit, Pradeep, Suresh, Naveen and Sandeep Jain, but out of these five witnesses, only two witnesses, namely, Lalit @ Pintu (PW.2) and Pradeep (PW.5), both grandsons of the deceased supported the prosecution case. While giving demonstration with the support of model of the temple (Raghunathji Ka Mandir), learned counsel for the appellants has tried to convince this Court that the place where the witness PW.2 Lalit @ Pintu was standing it was not possible for him to see the incident but he has narrated complete incident as if he saw the accused appellants causing injuries on the person of both the deceased. 43. Upon consideration of documents and model, so also, site plan coupled with the statements of PW.2-Lalit @ Pintu, no doubt it cannot be correctly ascertain whether the incident was actually seen by this witness or not, but we cannot lose sight of the fact that on 21.07.2005 after completion of ceremony, in the house of Kishan Vaishnav (son of deceased), witness PW.2 took his grandparents on motorcycle to drop them at their residence, where the occurrence took place. PW.2-Lalit @ Pintu, categorically stated in his statements that, ^^esjs nknk nknh dks j?kqukFk eafnj esa jgrs gS ogka ?kj ds vUnj ?kqlk vkSj vUnj x, vkSj ykWd [kksykA ml le; {kf=;ksa ds ikl ls gks gYyk lqukbZ fn;k o xkfy;ksa dh vkokt vk jgh FkhA eSaus Nr ij vkbZ Nrfj;ksa ds ikl ls eSaus xyh dh vkSj ns[kk rks ml le; jkepUnz] ckcqyky o iadt gkFkksa esa ykfB;ka o dqYgkM+h ysdj vk jgs FksA vkSj rhuksa gh gekjs ?kj ds vUnj izos'k fd;kA rhuksa us vkdj esjs nknk o nknh ds lkFk ekjihV 'kq: dj nh tks pkSd esa FksA** 44. Meaning thereby, as per statements of this eyewitness, presence of accused appellants is proved, therefore, even if the argument of learned counsel for the accused appellants is accepted that it was not possible for this witness to see the actual incident from the place where he hide himself, but on this ground the whole prosecution story cannot be disbelieved and it cannot be presumed that eyewitness PW.2 Lalit @ Pintu, was not present when incident took place. 45. We have perused the statements of another eyewitness PW.5-Pradeep, the said witness nowhere said in his statements recorded under Section 161 Cr.P.C., 1973 that he has seen the occurrence and he has stated before the court that he went to the house of his grandparents to bring sweets packet. It is true that this witness has improved his statement from the statement recorded under Section 161 Cr.P.C., 1973 but his presence can also not be questioned/doubted because he has categorically proved the motive and dispute in between the appellants and his grandparents. The following statement is given by him on oath to prove the motive, which reads thus: ^^esjs nknk nknh ds lkFk ckcqyky] iadt o jkepUnz us iqjkuh jaft'k dh otg ls ekjihV dh FkhA eafnj ds uhps IyksV gS ftldh jaft'k FkhA iqjkuh jaft'k py jgh gS vkSj ,d 'kknh dh otg ls ekjihV dh FkhA eqyfteku dks eSa 'kq: ls gh tkurk gwaA** 46. In the cross-examination also, the witness, PW.5-Pradeep categorically stated that he went on the spot with sweets, therefore, there is no question to disbelieve his testimony with regard to his presence. In the cross-examination also, the witness, PW.5-Pradeep categorically stated that he went on the spot with sweets, therefore, there is no question to disbelieve his testimony with regard to his presence. It is also required to be observed that in the aforesaid statement, this witness has categorically proved the motive of the incident that due to inter-case marriage of PW.14-Sonu (niece of accused appellant Ramchandra @ Ramu) with Pramod (PW.12), enmity developed in between the families. Similarly, the other witness Sonu (PW.14), niece of the accused appellant, Ramchandra @ Ramu, further corroborates in her statements that there was threat from the family of parents due to her love marriage with Pramod, grandson of deceased, against the wishes of her parents and family. 47. Upon consideration of entire evidence, we are of the opinion that prosecution has established the case that there was land dispute between the parties, which further aggravated due to love marriage of Sonu, real niece of accused appellant Ramchandra @ Ramu with Pramod, grandson of both the deceased. 48. We have also considered the argument of learned counsel for the appellants that no investigation was conducted with regard to other land dispute with other persons including the owner of the hotel of Lake view. In our opinion, once real niece of the accused appellant, Ramchandra @ Ramu specifically stated in her statements that due to her love marriage with Pramod, her parents and other relatives gave beatings to grandparents of Pramod on 21.07.2005. There is no reason to disbelieve the testimony of PW.-14 Sonu, because it was the genesis of immediate quarrel between both the families, in which two old persons were assaulted by the appellants and due to injuries caused to them, they loss their life. It also emerges from the facts that allegation of prosecution for planting eyewitness has not been proved, more so, two witnesses viz. PW.2-Lalit @ Pintu and PW.5-Pradeep, and PW.14-Sonu categorically supported the prosecution case. 49. It is also true that it was not possible for PW.2-Lalit @ Pintu to narrate the whole incident because he was standing behind the "Chhatri", from that place it was not possible to see how the injuries were inflicted but this fact is established that appellants were very much present and caused injuries to the person of deceased because witness PW.2 heard the noise when they reached the house of their grandparents. 50. 50. The judgment cited by the learned counsel for the appellants with regard to not recording the presence of the eyewitnesses at the place of occurrence, is now not relevant because all the eyewitnesses gave statements on oath to prove the incident. With regard to judgments in the case of Badam Singh v. State of M.P. reported in 2005 SCC (Cri.) 861, State of Punjab v. Sucha Singh reported in 2003 SCC (Cri.) 856, and Bapu v. State of Rajasthan reported in 2010 (2) Cr.L.R. (Raj.) 1229, we are of the opinion that conduct of two eyewitnesses cannot be treated to unnatural because being grandsons, it was their duty to take grandparents from the house to the place where they were residing. It is true that there are some minor contradictions in the statements of both the eyewitnesses, but for the said reason it cannot be said that prosecution has failed to prove its case beyond reasonable doubt. 51. With regard to judgment in the case of Peerulal v. State of Rajasthan reported in 1987 Cr.L.R. (Raj.) 183 and Meharaj Singh v. State of U.P. reported in 1995 Cr.L.J. 457, cited by learned senior advocate point out that fact of incident not recorded nor recorded inquest report, we are of the opinion that even if the said argument is accepted, then also, it cannot be said that such discrepancy can disturb the finding of learned trial court so as to convict the accused appellants for the crime of murder of two persons. 52. To consider the argument of learned counsel for the appellants that in the site plan, presence of witnesses is not mentioned, we are of the opinion that even if the said contention is accepted, then also, we cannot lose sight of the fact that both the eyewitnesses gave statements on oath before the court to prove the incident occurred at Raghunath Mandir, near Akheraj Ji-Ka-Talab, in which appellants assaulted both the deceased Mangilal and Smt. Chhota Devi, in which they died, therefore, there is no question to disbelieve their testimony. 53. Upon overall assessment of the evidence, coupled with finding of learned trial court, we are of the opinion that prosecution has proved its case beyond doubt that on 21.07.2005 the appellants gave beatings by deadly weapons to both the deceased, with intention to kill them. 54. 53. Upon overall assessment of the evidence, coupled with finding of learned trial court, we are of the opinion that prosecution has proved its case beyond doubt that on 21.07.2005 the appellants gave beatings by deadly weapons to both the deceased, with intention to kill them. 54. In view of above discussion, there is no reason to disturb the finding of learned trial court whereby the accused appellants were found guilty for committing offence under Section 302 and 449 of IPC. 55. Resultantly, the present criminal appeal is hereby dismissed.