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2019 DIGILAW 2540 (RAJ)

Subhash v. State of Rajasthan Through PP

2019-09-19

NARENDRA SINGH DHADDHA, SABINA

body2019
JUDGMENT Narendra Singh Dhaddha, J. - Appellant has filed this appeal challenging the conviction and sentence as ordered by the learned Trial Court vide judgment & order dated 07.10.2016 for offence u/s 302 IPC. 2. Prosecution case was set in motion on the basis of report (Ex.P-1) lodged by complainant Shankar Lal. On the basis of the said report (Ex.P-1), a formal FIR No.426/2012 dated 27.11.2012 was registered at Police Station Sri Madhopur, District Sikar for offence punishable under Section 302 IPC. 3. Prosecution story, in brief, was that on 27.11.2012 at about 8.00 AM, deceased Girdhari had gone to answer the call of nature in Johda (Grass land). At that time, Chhoturam S/o Shri Manglaram, Murliram S/o Manglaram, Jhabar, Dholuram @ Daulatram, Sohanlal, Subhash sons of Shri Chhoturam, Sumitra W/o Jhabar Mal, Santoshi W/o Dholuram @ Daulat Ram, Gulabi Devi W/o Chhoturam and Subhash, Santosh Sons of Chhoturam and wives of both - all by caste, Sumitra D/o Chhoturam wife of Devilal and Devilal (son-law of Chhoturam) etc. came with stick and axe in their hands. They surrounded deceased Girdhari and inflicted injuries on his body with the weapons which were in their hands. As a result, deceased Girdhari received grievous injuries on his skull and other parts of the body. Deceased Girdhari was taken to the hospital at Sri Madhopur. Condition of the deceased was serious, so he was referred to SMS Hospital, Jaipur where he was admitted. Ultimately, he was died due to grievous injuries caused by the above named persons. 4. After completion of investigation and necessary formalities, challan was presented against the appellant and charge under Section 302 IPC was framed against him. The appellant did not plead guilt to the charge framed against him and claimed trial. 5. In order to prove its case, prosecution examined 20 witnesses during trial. Appellant when examined under Section 313 Cr.P.C. prayed that he was innocent and falsely involved in this case. The appellant examined two witnesses in defence. 6. Shri Biri Singh Sinsinwar, learned Senior Counsel for the appellant has submitted that the prosecution had miserably failed to prove its case. The incident had taken place in the morning on 27.11.2012 at about 8:00 AM. Typed report was submitted at 10:45 P.M. after more than 15 hours. There is no explanation about delay. 6. Shri Biri Singh Sinsinwar, learned Senior Counsel for the appellant has submitted that the prosecution had miserably failed to prove its case. The incident had taken place in the morning on 27.11.2012 at about 8:00 AM. Typed report was submitted at 10:45 P.M. after more than 15 hours. There is no explanation about delay. He also submitted that the said report reached in the Court on 29.11.2012 at about 10:30 AM. The prosecution had not explained inordinate delay in sending the report to the Court. He also submitted that in the police proceedings, FIR number was previously mentioned as 427/2012 but later on, it was corrected as 426/2012. There is no explanation of over writing in the police proceedings. He also submitted that Sub-Inspector Pawan Kumar (PW-20) had prepared inquest report of dead body (Ex.P-3), recovery memo of dead body (Ex.P-4) and seizure memo of clothes (Ex.P-19) on 28.11.2012. These documents did not bear FIR number. He also admitted in his cross-examination that at the time of preparing these documents, FIR was not lodged. So, it is crystal clear that FIR was not lodged on 27.11.2012. It was lodged after manipulation. So, the FIR is suspicious. Therefore, whole prosecution story is not believable. 7. Learned Senior Counsel appearing for the appellant submitted that no motive has been mentioned in the FIR about the crime and there was no specific allegation against the accused appellant to inflict injury to the deceased. FIR is exaggerated and it reveals general allegation against 12 persons including the appellant. Names of the eye witnesses were not mentioned in the FIR. Witnesses Rudmal (PW-2), Suman (PW-4) and Bodu Ram (PW-6) were later on introduced as eye witnesses. They were relatives of the complainant. Therefore, they were interested witnesses and no credibility could be attached to them. He also submitted that independent witnesses - Jaman Lal (PW-7) Kesar Mal (PW-8) did not support the prosecution story. 8. Learned Senior Counsel Shri Biri Singh Sinsinwar also submitted that the Investigating Officer Samuder Singh (PW-18), in his cross-examination, admitted that recovery of axe at the instance of appellant was made from open place. At the time of information and recovery, he had not joined any independent witness. He also admitted that the appellant had given information under Section 27 of the Evidence Act on 01.12.2012,02.12.2012 and 04.12.2012. But axe was not recovered from the information. At the time of information and recovery, he had not joined any independent witness. He also admitted that the appellant had given information under Section 27 of the Evidence Act on 01.12.2012,02.12.2012 and 04.12.2012. But axe was not recovered from the information. After that, on information dated 06.12.2012, he had recovered the axe from the open place. 9. Shri Biri Singh Sinsinwar, learned Senior Counsel also submitted that the whole prosecution story is manipulated. Deceased Girdhari and Suman D/o of Prabhu had illicit relations. Prabhu had seen them in a compromising position. Prabhu had killed the deceased after manipulation and consultation with Shanker. False report was lodged against the appellant and others. To prove these facts, appellant had produced Thawar Singh (DW1) and Manoj (DW-2) as defence witnesses. 10. Learned Senior Counsel Mr. Biri Singh Sinsinwar also submitted that from the postmortem report (Ex.P-20), it reveals that only one injury was inflicted to the deceased Girdhari which is incised wound 15cm x 1.5cm x brain matter deep vertically oblique extending from parietal to occipital region crossing mid line. All tissues were cut through from skin to brain. The part of brain matter was coming out. For this injury, Dr. Parmod Garg (PW-3) had specifically stated in his statement that this injury could be caused by a weapon like Chandarkar and cannot be caused by Axe. So, the prosecution failed to prove its case and the appellant be acquitted. 11. Learned State Counsel and the learned counsel for the complainant, both opposed the appeal. Learned counsel submitted that the accused appellant inflicted injury to the deceased on parietal region and due to this grievous injury, Girdhari died. Eye witnesses Witnesses Rudmal (PW-2), Suman (PW-4) and Bodu Ram (PW-6) had supported the prosecution story. 12. We have heard the learned counsel for he parties, gone through the impugned judgment and order and perused the available record. 13. Shankar Lal (PW-1) submitted a report on 27.11.2012 at Police Station Sri Madhopur in which he stated that at about 8:00 A.M. deceased Girdhari had gone to answer the call of nature in Johda (Grass land). 12. We have heard the learned counsel for he parties, gone through the impugned judgment and order and perused the available record. 13. Shankar Lal (PW-1) submitted a report on 27.11.2012 at Police Station Sri Madhopur in which he stated that at about 8:00 A.M. deceased Girdhari had gone to answer the call of nature in Johda (Grass land). At that time, Chhoturam S/o Shri Manglaram, Murliram S/o Manglaram, Jhabar, Dholuram @ Daulatram, Sohanlal, Subhash sons of Shri Chhoturam, Sumitra W/o Jhabar Mal, Santoshi W/o Dholuram @ Daulat Ram, Gulabi Devi W/o Chhoturam and Subhash, Santosh Sons of Chhoturam and wives of both - all by caste, Sumitra D/o Chhoturam wife of Devilal and Devilal (son-law of Chhoturam) etc. came with stick and axe in their hands. They surrounded deceased Girdhari and inflicted injuries on his body with the weapons which were in their hands. On this report an FIR was lodged. In the FIR Shankar Lal exaggerated the story. Accordingly to him, the incident occurred at about 8:00 A.M. and he had lodged FIR after fifteen hours at 10:30 P.M. He had not explained the delay in lodging the FIR. The FIR was sent to the concerned Magistrate with inordinate delay on 29.11.2012. In FIR, the complainant alleged that deceased Girdhari was beaten with lathies and axe by twelve persons along with appellant but it reveals from the postmortem report (Ex.P20) that only one injury was caused on the body of deceased. So, the averments of the FIR do not match with the postmortem report. Investigating Officer had not found other persons guilty after investigation. In FIR, the appellant had not stated any motive regarding crime and he had also not specifically alleged the accused appellant for inflicting injury. The complainant had not mentioned names of the eye witnesses in the FIR. Prosecution witnesses Rudmal (PW-2), Suman (PW-4), Bodhuram (PW-6) and Prabhuram (PW-19) were introduced later as eye witnesses. They were relatives of the complainant. Therefore, they were interested witnesses and no reliance can be placed on their evidence. Independent witness Jaman Lal (PW-7) and Kesarmal (PW-8) did not support the prosecution story. The recovery of axe at the instance of the appellant was made from open place. Investigating Officer Samuder Singh (PW-18), in his cross-examination, admitted that he had not joined any independent witnesses during recovery. Independent witness Jaman Lal (PW-7) and Kesarmal (PW-8) did not support the prosecution story. The recovery of axe at the instance of the appellant was made from open place. Investigating Officer Samuder Singh (PW-18), in his cross-examination, admitted that he had not joined any independent witnesses during recovery. Sub-inspector Pawan Kumar (PW-20) had prepared the inquest report of the dead body, recovery memo of dead body and seizure memo of clothes as Ex.3, Ex.4 and Ex.19 on 28.11.2012. These documents did not bear FIR number. Sub-inspector Pawan Kumar (PW-20) admitted in cross-examination that at the time of preparing these documents, FIR was not lodged. So, it is evident from the record that the FIR was not lodged on 27.11.2012. There was overwriting in the police proceedings of the FIR number. It shows that after manipulation, the said FIR was lodged and ante- dated. So, the FIR becomes suspicious and whole story of the prosecution became doubtful. 14. The appeal preferred by the appellant is allowed. The conviction and sentence of the appellant as ordered by the trial court is quashed and set aside. The appellant is acquitted of the charge framed against him. Appellant who is in custody, be set at liberty forthwith, if not required in any other case. 15. In view of the provisions of Section 437-A Code of Criminal Procedure,1973, appellant Subhash S/o Shri Chhoturam is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.