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2018 DIGILAW 138 (RAJ)

Shersingh v. State of Rajasthan

2018-01-10

SANGEET LODHA, VIRENDRA KUMAR MATHUR

body2018
JUDGMENT : Sangeet Lodha, J. This appeal is directed against judgment dated 17.7.92 passed by Sessions Judge, Churu in sessions case No. 105/92 (96/91), whereby the appellant was convicted for offence u/s. 302 IPC and sentenced to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer one month imprisonment. 2. Precisely, the prosecution case is that on 24.6.92 at 2.30 a.m. informant Ramjilal made an oral report at Police Station, Siddhmukh to the effect that in the night he was sleeping in the chowk of his house, his neighbour Dharuram was sleeping on chabutari in front of his house and Shri Dulichand was sleeping on yet another chabutari in front of Dharuram's house. At about 12.30 a.m. he heard Dulichand shouting that Sher Singh has killed Dharuram by axe. According to the informant Ramjilal, he saw Shersingh running from by the side of the cot of Dharuram towards the east of the village saying that he has killed Dharuram. On Ramjilal and Dulichand raising the voice, Chhabilal and Hari Singh also came at the place of occurrence and saw that the blood was oozing out from the mouth, jaw, lips etc. of Dharuram. He was giving respiratory sound, which stopped in a short while and he died. He further stated that Dharuram who was elder brother of Sher Singh's father Juglal, was having huge property which he intended to invest in the temple and since Juglal etc. wanted to grab the property, out of enmity Shersingh has murdered Dharuram. 3. On the basis of the information received as aforesaid, the police registered the case for offence under Section 302 IPC and the investigation commenced. During the investigation, the police prepared the site plan, took possession of blood stained earth and cloth & shoes of the deceased. After inquest proceedings, the dead body of Dharuram was subjected to autopsy, necessary memos were drawn and statements of the witnesses were recorded. At the instance of the accused, axe, the weapon of offence, was recovered. Blood stained earth and cloths sealed in different packets were sent to Forensic Science Laboratory, Jaipur. 4. After completion of the investigation, the police filed charge sheet against the appellant for offence under Section 302 IPC before the Judicial Magistrate, First Class, Rajgarh. At the instance of the accused, axe, the weapon of offence, was recovered. Blood stained earth and cloths sealed in different packets were sent to Forensic Science Laboratory, Jaipur. 4. After completion of the investigation, the police filed charge sheet against the appellant for offence under Section 302 IPC before the Judicial Magistrate, First Class, Rajgarh. The matter was committed to Sessions Court, Churu, which was later transferred to the court of Additional Sessions Judge, Churu for trial. The trial court framed the charge for offence under Section 302 IPC against the appellant, who denied the charge and claimed trial. 5. The prosecution in support of the case examined as many as 12 witnesses including eye witness Dulichand (PW 4) and also produced documentary evidence (Ex. PW1 to PW 32). The appellant did not lead any evidence in defence. 6. In examination under Section 313 Cr.P.C., the appellant denied his involvement in the commission of the offence rather, claimed that Dulichand and Ramjilal wanted to grab the property of Dharuram and therefore, they have killed Dharuram and falsely implicated him in the case for offence of murder. The appellant claimed that he had no occasion to kill his tau Dharuram inasmuch as, on his natural death, he and his father would have inherited his property. He further alleged that Dulichand is cultivating the land of Dharuram and had also taken possession of his house and grabbed the cash and ornaments as well. 7. The trial court after due consideration of the evidence available on record and rival submissions, convicted and sentenced the appellant as indicated above. Hence, this appeal. 8. Learned Amicus Curiae contended that the prosecution has projected Dulichand (PW 4) as eye witness of the incident, however, a reading of his statement alongwith the statements of Ramjilal (PW 5) and Chhabila Ram (PW 6), indicates that he has been planted as eye witness of the incident. Dulichand (PW 4) has deposed that on his raising the alarm, Ramjilal (PW 5), Bhagga Ram, Hari Singh (PW 1) and Chhabila Ram (PW 6) came to the place of occurrence whereas, Chhabila Ram (PW 6) has deposed that hearing the rattling, he came out of the house and having seen that Dharuram lying dead on the cot, had given a call to Ramjilal, Jugatiram, Dulichand, Hari Singh and Bhhaga Ram. Learned Amicus Curiae contended that though Chhabila Ram has turned hostile, the prosecution while cross examining him, did not put any question so as to clarify the position in this regard and thus, as per his deposition, Dulichand (PW 4) and Ramjilal (PW 5) had reached the place of occurrence after him. Learned Amicus Curiae submitted that the statements of the eye witness Dulichand (PW 4), Ramjilal (PW 5) and Chhabila Ram (PW 6) regarding the incident occurred are contradictory. As a matter of fact, they were not eye witnesses but have been so projected to create false evidence against the appellant and therefore, their testimony cannot be relied upon. It is submitted that the conduct of Dulichand (PW 4) alleged to be present at the time of occurrence in not making any attempt to save the deceased Dharuram, is unnatural, which creates a doubt about his presence at the time of occurrence. Learned Amicus Curiae submitted that there was no corroborative evidence available inasmuch as, even the weapon of offence and the FSL report were not exhibited in evidence. Learned Amicus Curiae submitted that there was no cogent evidence brought on record to establish the motive as projected that Dharuram intended to give his land for temple and therefore, the appellant, the son of elder brother of Dharuram, who was heir apparent after the death of Dharuram, killed him. Accordingly, learned Amicus Curiae submitted that the prosecution having failed to prove the guilt of the appellant beyond reasonable doubt, he deserves to be acquitted. 9. On the other hand, the learned Public Prosecutor submitted that the charge against the accused stands proved on the basis of testimony of independent eye witnesses; the FIR was lodged without any delay and the weapon of offence was recovered at the instance of the appellant, which stands proved on the basis of the testimony of the witness Jugata Ram (PW 8). It is submitted that the recovery of the weapon of offence at the instance of appellant having proved, nothing turns on the question that the weapon of the offence and the FSL report were not exhibited in evidence. Learned Public Prosecutor submitted that the testimony of the witnesses who had reached immediately after the incident cannot be discarded and thus, the guilt of the appellant stands established beyond reasonable doubt. Learned Public Prosecutor submitted that the testimony of the witnesses who had reached immediately after the incident cannot be discarded and thus, the guilt of the appellant stands established beyond reasonable doubt. In support of the contention, learned Public Prosecutor has relied upon a decision of the Hon'ble Supreme Court in the matter of "Ramashray Yadav & Ors. v. State of Bihar", 2006 Cr.L.J. 133. 10. We have considered the submissions of the learned Amicus Curiae and the learned Public Prosecutor and scanned the evidence on record thoroughly. 11. Dr. Ramjilal Bansal (PW 11), who was posted as Medical Officer at Government Hospital, Sidhmukh at the relevant time, conducted autopsy over the dead body of Dharuram. As per the post mortem report (Ex.P/27), following ante mortem injuries were found on the person of the deceased: "1. Vertical incised wound 3"x1/2" above Lt.eye on forehead. Clotted blood is there. Margin clean cut & sharp. Gapping at wound. 2. Incised wound 2"x1" over Rt. eye. Clotted blood is there. 3. 4"x1"x1" on face incised wound extending from Rt. Eye to Rt. Ear, pinna of Rt. Ear also cut. Malar bone is also cut. 4. Incised wound 3"x1"x1" from Rt. Side nose to extending on Rt. Cheek with cut fractured upper jaw. 5. Incised wound 3"x1" through & through mouth cavity ext. from Rt. Angle of mouth to Rt. Side of cheek teeth & tongue also cut. Clotted blood in buccal cavity is there. 6. 6"x1/2" through & through in buccal cavity incised wound between lower lip & chin extending from Lt. angle of mouth to Rt. side of cheek lower jaw cut fracture." It is opined that cause of death is haemorrhage & shock as a result of multiple injuries which are ante mortem in nature. Dr. Ramjilal Bansal (PW 11) has deposed that the Post Mortem report is his hand written. Thus, on the basis of medical evidence on record, it is established beyond doubt that the death of deceased Dharuram was homicidal in nature. 12. The prosecution case is founded on inter alia the testimony of eye witness Dulichand (PW 4) and Ramjilal (PW 5). According to the Amicus Curiae appearing on behalf of the appellant these witnesses examined were not the eye witnesses of the incident, however, they have been super imposed as such so as to create false evidence against the appellant. 12. The prosecution case is founded on inter alia the testimony of eye witness Dulichand (PW 4) and Ramjilal (PW 5). According to the Amicus Curiae appearing on behalf of the appellant these witnesses examined were not the eye witnesses of the incident, however, they have been super imposed as such so as to create false evidence against the appellant. We have to adjudge as to whether the testimony of eye witness is reliable and with the corroboration of other evidence on record, it conclusively establishes the guilt of the appellant. 13. It is to be noticed that Ramjilal (PW 5), who is alleged to have reached the place of occurrence on alarm being raised by Dulichand, by way of his oral report made at Police Station, Sidhmukh, informed that he saw Sher Singh running from the cot of Dharuram towards the east of the village saying that he has killed Dharuram and further that on Dulichand raising the voice, Chhabila Ram (PW 6) and Hari Singh (PW 1) also came at the place of occurrence. 14. Dulichand (PW 4) has deposed that on the date of occurrence in the night he was sleeping on chabutari outside the house of Dharuram and Ramjilal was sleeping outside the door of his house. At about 12 o'clock, seeing Sher Singh inflicting injuries on the person of Dharuram, on his making noise, Ramjilal came to the place of occurrence. He recognized Sher Singh while he was fleeing away from the place of occurrence saying that he has killed Dharuram. In cross examination, he further stated that while fleeing away, he saw Sher Singh from about 10 steps distance. He further deposed that he neither intervened nor attempted to save Dharuram as Sher Singh was having axe in his hands. Contrary to the statement made in examination-in-chief as aforesaid, in the cross examination he stated that Sher Singh said that he has killed Dharuram at the time when he had already gone 50-60 steps away from house of Dharuram. 15. As noticed hereinabove, as per deposition of Dulichand (PW 4), at about 12 o'clock when he awakened, he saw Sher Singh inflicting injuries on the person of the deceased Dharuram but at the same time, in examination-in-chief as also in the cross examination, he has stated that he had recognized Sher Singh while he was fleeing away from the place of occurrence. Thus, apparently the statements of eye witness Dulichand are self contradictory. It is not understandable that if in the moonlight night, he could not recognize Sher Singh from a shorter distance while he was inflicting injuries upon Dharuram, how he could have recognized him from comparatively a longer distance when he was fleeing away from the place of occurrence. 16. At this stage, it is pertinent to note that Dulichand (PW 4) was also examined under Section 164 Cr.P.C. before the Judicial Magistrate, First Class, Taranagar on 15.7.91 wherein he has nowhere stated that he had seen Sher Singh inflicting injuries on the person of deceased Dharuram rather, he stated that hearing the rattling he raised the noise that 'who is there' and then saw Sher Singh running with axe in his hands. He further stated that hearing the noise, Ramjilal, Hari Singh and Chhabila Nai as also other villagers reached there. Thus, besides the statement of Dulichand (PW 4) before the trial court being self contradictory, the same is found to be contradictory vis-a-vis his statement before the Judicial Magistrate recorded under Section 164 Cr.P.C. just after a few days of the incident occurred as well. 17. Ramjilal (PW 5), who as per the prosecution story had arrived at the place of occurrence on Dulichand (PW 4) making the noise, has stated that hearing the noise, he awakened all of a sudden and saw Sher Singh jumping from the boundary and stating that he has killed Dhara. He further deposed that while he was proceeding near Dhara, Sher Singh went on declaring that he has killed Dhara. In cross examination, he has stated that while standing on chabutari, Sher Singh stated that he has killed Dhararam. 18. The conjoint reading of the statement of Dulichand (PW 4) and Ramjilal (PW 5) creates doubt about the prosecution story inasmuch as, if Ramjilal who had reached the place of occurrence hearing the noise of Dulichand, had seen the appellant while standing on the chabutari and declaring that he has killed Dhararam then why Dulichand (PW 4) who was sleeping on chabutari nearby, according to Ramjilal (PW 5) only at the distance of 8-10 fts. from the chabutari, could not recognize him while he was inflicting injuries on the person of the deceased Dhararam. 19. from the chabutari, could not recognize him while he was inflicting injuries on the person of the deceased Dhararam. 19. Chhabila Ram (PW 6), who turned hostile, has deposed that hearing the rattling he reached the place of occurrence where Dhararam was lying dead on the cot and he had given call to Ramjilal, Jugatiram, Dulichand, Hari Singh and Bhagaram. In cross examination, he has stated in unequivocal terms that Ramjilal and Dulichand had arrived the place of occurrence after him. 20. It is well settled that the evidence of the hostile witness could not be totally rejected if spoken in favour of the prosecution or the accused but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. (vide State of U.P. v. Ramesh Mishra & Anr., AIR 1996 SC 2766 ). It cannot be ignored that sometimes the witness become hostile because the police record of his/her earlier testimony is incorrect. 21. Thus, on the facts and in the circumstances of the case, where the statements of eye witness Dulichand (PW 4) and Ramjilal (PW 5) suffer from apparent contradictions, the testimony of the witness Chhabila Ram (PW 6) turned hostile, creating doubt regarding the presence of the said witnesses at the time of occurrence of the incident or immediately thereafter, cannot be overlooked. 22. There is yet another aspect of the matter. If Dulichand (PW 4) was sleeping only at the distance of 8-10 fts. from deceased Dharuram then obviously, he must have awakened hearing the cry of the deceased just after a first blow by the accused. It would be against the normal human behaviour that seeing a person being attacked by deadly weapon, the person witnessing the incident shall not raise hue and cry immediately and shall wait till the culprit finishes the job and run away from place of the occurrence. Further, if Dulichand (PW 4) and Ramjilal (PW 5) and others reached the place of occurrence immediately after the incident, their conduct in not attempting to catch hold of the culprit also appears to be unnatural. 23. Apart from the testimony of the witnesses discussed above, only corroborative evidence brought on record by the prosecution is that blood stained axe was recovered at the instance of the appellant. 23. Apart from the testimony of the witnesses discussed above, only corroborative evidence brought on record by the prosecution is that blood stained axe was recovered at the instance of the appellant. It is a matter of record that the weapon of the offence blood stained axe is alleged to have been recovered on the information supplied by the appellant after a lapse of 7 days from an open field. Neither the axe recovered nor the FSL report regarding blood stain was exhibited in evidence. In this view of the matter, keeping in view the fact that direct evidence i.e. the depositions of the eye witnesses is found unworthy of credence, on the basis of the alleged recovery, no inference regarding the guilt of the accused can be drawn. 24. For the aforementioned reasons, we are firmly of the opinion that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt and thus, the trial court has erred in convicting and sentencing the appellant as indicated above. The appellant deserves to be acquitted of the charges giving the benefit of doubt. 25. In the result, the appeal succeeds, it is hereby allowed. The impugned judgment of the court below convicting and sentencing the appellant for offence under Section 302 IPC is set aside. The appellant is acquitted of the charge. The appellant is already on bail and therefore, his bail bonds are ordered to be discharged.