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2019 DIGILAW 2593 (RAJ)

Kailash v. State of Rajasthan

2019-09-25

ABHAY CHATURVEDI, SANDEEP MEHTA

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JUDGMENT : Sandeep Mehta, J. 1. The appellants herein have been convicted and sentenced as below vide judgment dated 17.03.2016 passed by the learned Additional Sessions Judge, Banswara in Sessions Case No. 80/2011 : Offences Sentences Fine Fine Default sentences Under Section 436/34 IPC 05 Years R.I. Rs.1,000/- 15 Days' Simple Imprisonment Under Section 302/34 IPC Life Imprisonment Rs.10,000/- 03 Months' Simple Imprisonment All the sentences were ordered to run concurrently. 2. Being aggrieved of their conviction and sentences, the appellants have preferred the instant appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted hereinbelow:- The complainant Hakru (P.W.-1) submitted an oral report (Ex. P/1) to the SHO, Police Station Ambapura, District Banswara at the place of occurrence i.e. Village Relbari alleging inter alia that his younger brother Sarma son of Jeevna, by caste Ninama Adiwasi aged 30 years, used to reside in a hut constructed near the main road and was indulged in the business of selling grocery items from the hut. On the day of the occurrence i.e. on 21.05.2010 at about 05.30 pm., the informant and his brother were both sitting at the shop. At that time, Rama son of Hardu, Kailash son of Kanji, Dungariya @ Narayan son of Kanji, Hariya @ Harish son of Kanji, and Kanji son of Hemla, by caste Dindor Adiwasi, residents of Bhurisagaderi came there after forming an unlawful assembly. They were carrying a bottles filled with petrol with them. On arrival, they insinuated that the shop had been put up on their land. Saying so in threatening tones, the accused surrounded Sarma and exhorted that he would be killed today. Sarma was tied by a wire. Kailash poured petrol on the body of Sarma and Dungariya @ Narayan set him to fire by a matchstick. Rama and Harish set fire to the hut due to which, a blaze flared up. The informant shouted on which, Dinesh son of Gautam, Jeevna son of Deepa, Kailash son of Gautam, Prabhu son of Gautiya, Narayan son of Puna Kharadi, came around running. By that time, the accused had escaped from the scene of occurrence after indulging in the offence. Sarma died on the spot due to burn injuries. Thereafter, numerous other people came there. The household and the grocery articles lying in the hut were destroyed in the fire. By that time, the accused had escaped from the scene of occurrence after indulging in the offence. Sarma died on the spot due to burn injuries. Thereafter, numerous other people came there. The household and the grocery articles lying in the hut were destroyed in the fire. The total loss due to fire was estimated at about 25-30 thousand rupees. On the basis of the report aforesaid, an FIR No. 112/2010 (Ex. P/3) came to be registered at the Police Station Ambapura for the offences under Sections 147, 148, 302 and 436 IPC. Shri Hakru submitted another report (Ex. P/2) to the Dy. S.P., Banswara on 22.05.2010 in which, five more persons in addition to those named in the FIR No. 112/2010 were also alleged to be indulged in the arson and murder. 4. The investigation was undertaken by the SHO, Ambapura (P.W.-19) Shri Narendra Singh. He proceeded to prepare the site inspection plan. An iron wire and ashes lying at the spot were taken into possession and sealed. The dead body of Sarma was forwarded to the Mahatma Gandhi Hospital, Banswara for postmortem examination. The Panchayatnama Lash of the body (Ex. P/4) was prepared. The body was handed over to the relatives for cremation. The I.O. proceeded to record the statements of various witnesses under Section 161 Cr.P.C. The five accused named in the FIR were arrested. In furtherance of the information (Ex. P/23) provided by the accused Dungariya @ Narayan to the I.O. under Section 27 of the Evidence Act, an empty bottle in which, the petrol was allegedly carried, was recovered. The revenue record was collected. The five accused persons named in the subsequent report were also arrested. Finally, the investigating officer proceeded to submit a charge-sheet against 10 persons in the court of the Magistrate concerned for the offences under Sections 147, 148, 149, 302, 436 and 120B IPC. As the offences were triable by Court of Sessions, the case was committed and transferred to the court of Additional Sessions Judge, Banswara for trial. The trial court framed charges against all the accused for the above offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 19 witnesses and exhibited 30 documents to prove its case. The accused Kanji expired during the course of trial and accordingly, proceedings as against him were dropped. The trial court framed charges against all the accused for the above offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 19 witnesses and exhibited 30 documents to prove its case. The accused Kanji expired during the course of trial and accordingly, proceedings as against him were dropped. The accused were questioned under Section 313 Cr.P.C. and were confronted with the allegations appearing against them in the prosecution evidence which they denied and claimed to have been falsely implicated. Three witnesses were examined in defence. 5. After hearing the arguments advanced by the prosecution and the defence and, upon evaluating and appreciating the evidence available on record, the learned Trial Judge, proceeded to acquit the accused appellants from the charge under Section 120B IPC. The accused Lalu @ Laliya, Paliya @ Bhalji, Rajeng, Roopji and Kantilal, who were named in the subsequent report (Ex. P/2) were acquitted of all the charges by extending the benefit of doubt to them. However, the appellants Rama, Kailash, Dungariya @ Narayan and Hariya @ Harish were convicted and sentenced as above by the impugned judgment dated 17.03.2016. Being aggrieved thereof, the instant appeal has been preferred. The accused Rama expired during pendency of the instant appeal and hence, the appeal was disposed as having abated to his extent. 6. Learned counsel Shri K.R. Bhati representing the appellants, vehemently and fervently urged that the entire prosecution case is false and fabricated. The deceased was involved in the illegal business of selling fuels from the hut. He used to store petrol and diesel in plastic bottles and sold them to customers. On the day of incident, unfortunately a spark led to the blaze in which, the hut was destroyed and Sarma was burnt to death. He urged that all the eye-witnesses portrayed by the prosecution were as a matter of fact not even present at the spot when the incident took place and arrived at a much later stage. He drew the Court's attention to the statement of the Medical Jurist (P.W.-13) Dr. S.K. Bhatnagar, who was one of the Members of the Medical Board, which conducted postmortem upon the body of the deceased and issued the postmortem report (Ex. He drew the Court's attention to the statement of the Medical Jurist (P.W.-13) Dr. S.K. Bhatnagar, who was one of the Members of the Medical Board, which conducted postmortem upon the body of the deceased and issued the postmortem report (Ex. P/15) as well as that of the I.O. (P.W.-19) Shri Narendra Singh, and urged that the evidence of both these witnesses completely destroys the theory put-forth in the evidence of the first informant and the other witnesses that the deceased was first bound by a wire and then he was set to fire. He urged that the I.O. admitted in his cross-examination that no wire was seen tied to the body of Sarma when it was taken out from the burnt hut. Likewise, the Medical Officer also admitted that no marks of any wire being tied to the body of the deceased were visible when postmortem was carried out and that the appearance of the binding marks in case, the deceased had been tied with a wire before setting him to fire, was imperative. He further submitted that the conduct of the eye witnesses in not making any attempt to save the deceased despite being aware that the accused were setting him to fire, also casts a grave doubt on the truthfulness of their claim that they saw the incident with their own eyes. Shri Bhati further submitted that the complainant made an apparent attempt of falsely implicating five more accused in the subsequent report (Ex. P/2) and this conduct is depictive of the fact that he was trying to rope in as many accused as possible in this falsely foisted case. He thus implored the Court to accept the appeal, set aside the impugned judgment and acquit the appellants of the charges. 7. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellants' counsel and urged that the version of the eye-witnesses is absolutely truthful and natural. The murder took place in broad light and thus, it is impossible to believe that nobody would have seen the incident happening. He submitted that the accused were bearing an enmity with the deceased who had constructed the hut on their land. The incident was perpetrated after extending a threat to the deceased as to why he had trespassed on their land. The eye-witnesses had no occasion to falsely implicate the accused in the case. He submitted that the accused were bearing an enmity with the deceased who had constructed the hut on their land. The incident was perpetrated after extending a threat to the deceased as to why he had trespassed on their land. The eye-witnesses had no occasion to falsely implicate the accused in the case. As per the learned Public Prosecutor, there is no truth in the defence theory that the fire was accidental. He urged that if at all, the blaze had erupted accidentally then, Sarma would definitely have rushed out of the hut to save himself. He thus craved dismissal of the appeal and sought affirmation of the impugned judgment. 8. We have given our thoughtful consideration to the submissions advanced at the bar; perused the impugned judgment and minutely re-appreciated the evidence available on record. 9. Before proceeding to discuss and evaluate the testimony of the eye-witnesses, we would like to make a reference of the medical evidence and the evidence of the investigating officer. 10. Dr. S.K. Bhatnagar (P.W.-13), who was one of the Members of the Medical Board which conducted postmortem upon the body of the deceased and issued the postmortem report (Ex. P/15), stated in his examination-in-chief that the cause of death of the deceased Sarma was antemortem burns. The Doctor opined that owing to the burns, the abdomen of the deceased was burst open and his intestines spilled out. In cross-examination, the Doctor admitted that the extent of burns which were seen on the body of the deceased indicated that the exposure to flames must have been of between one to one and half hours because the possibility of the abdomen bursting would arise only if the body remained exposed to fire for such a long duration. The Doctor categorically admitted that no marks of the deceased being bound by wire were noticed when postmortem was carried out and that in case a wire had been tied to the deceased before setting him to fire, such marks were bound to appear on the dead body. 11. The I.O. (P.W.-19) Shri Narendra Singh also admitted in his cross-examination that when he reached the place of the incident, the fire had been put out or had extinguished on its own. He did not make any investigation as to how the fire was doused. 11. The I.O. (P.W.-19) Shri Narendra Singh also admitted in his cross-examination that when he reached the place of the incident, the fire had been put out or had extinguished on its own. He did not make any investigation as to how the fire was doused. The I.O. further admitted that when the body was taken out from the hut, neither did he remove any wire from the body of the deceased nor any marks of binding by wire were visible thereupon. The witness also admitted in his cross-examination that the initial information regarding the incident was received by him through a telephonic message forwarded by the Police Outpost Padla. Some constable at the Outpost received the information. The I.O. admitted that neither any investigation was made from the Constable nor did he file the corresponding Rojnamcha entry on the record. The I.O. further admitted that he reached the place of the incident after about 45 minutes and that the oral information (Ex. P/1) was submitted to him by the complainant. He feigned ignorance and rather denied that the Constable at the Outpost received some written information. About 50-100 people were present at the spot when he reached there. He specifically admitted that at the time of incident, only Hakru was present at the spot and the other people came later and that is why the victim could not be saved. He feigned ignorance whether the shop-keepers who were doing business on the Ratlam Road, were selling petrol and diesel stored in bottles. The dead body was sent to the hospital and the Panchayatnama was prepared there. The wire was seized on the day next to the incident as the same was recovered from the ashes. He admitted that he did not find any evidence whatsoever against five accused persons against whom Hakru submitted the second report (Ex. P/2) on 22.05.2010. 12. Upon an overview of the evidence of the Medical Officer and the investigating officer, it is clear that the theory put-forth in the written report submitted by Hakru (Ex. P/1) and in his sworn testimony that Sarma was bound by a wire and was then set to fire, is totally falsified. Furthermore, the time of incident portrayed in the FIR (05.30 pm.) also appears to be incorrect inasmuch as the Medical Officer Dr. P/1) and in his sworn testimony that Sarma was bound by a wire and was then set to fire, is totally falsified. Furthermore, the time of incident portrayed in the FIR (05.30 pm.) also appears to be incorrect inasmuch as the Medical Officer Dr. S.K. Bhatnagar (P.W.-13) who conducted postmortem upon the body of the deceased categorically stated that the situation of the abdomen bursting could only arise if the body kept burning for about 1-1 1/2 hour in a very hot blaze. From a perusal of the written report (Ex. P/1), it is clear that the informant alleged that the incident took place at 05.30 pm.; the SHO reached the place of the incident at 06.15 pm. at which point of time, the written report came to be lodged before him. Manifestly, the handwritten report which runs into a full page would also have taken some time to draft and thus, the theory put-forth in the FIR that the accused came to the spot at about 05.30 pm. and then indulged in the arson, is also not palpable. The I.O. categorically stated that only Hakru (P.W.-1) was present at the spot when the incident took place. Hakru tried to portray in the FIR and in his sworn testimony that Dinesh, Jeevna, Kailash, Prabhu, etc. also reached the spot and tried to dissuade the accused from killing the deceased but the accused did not relent. Thus, the first informant seems to be highly interested in increasing the number of eye witnesses so as to substantiate his story. The fact that Hakru was out and out to falsely implicate as many accused as possible is writ large on the face of the record because he did not rest satisfied by naming the five accused in the written report (Ex. P/1) and lodged yet another report (Ex. P/2) to the Dy. S.P. on the day next to the incident in which, five more accused were named who were allegedly exhorting the main assailants to commit the offence. The prosecution has examined Hakru (P.W.-1), Prabhu (P.W.-2), Dinesh (P.W.-4), Jeevna (P.W.-5), Kailash (P.W.-6), Narayan (PW-7) to be the eye-witnesses who claimed to be present at the spot right from the time, the accused came there, tied Sarma with a wire and poured kerosene on his body and set him as well as the hut to fire. The prosecution has examined Hakru (P.W.-1), Prabhu (P.W.-2), Dinesh (P.W.-4), Jeevna (P.W.-5), Kailash (P.W.-6), Narayan (PW-7) to be the eye-witnesses who claimed to be present at the spot right from the time, the accused came there, tied Sarma with a wire and poured kerosene on his body and set him as well as the hut to fire. None of these witnesses alleged that the accused were armed. Thus, the utter failure of these witnesses in making any attempt of saving the victim from the clutches of the accused, brings their testimony under a grave cloud of doubt. Their indifferent conduct is totally unnatural and creates a genuine doubt that they must have reached at the place of occurrence after the blaze went up. 13. We have minutely examined the testimony of these witnesses. All the eye-witnesses other than Hakru (P.W.-1) pertinently denied that the accused named in the report (Ex. P/2) were present at the spot. 14. P.W.-2 Prabhu, in his cross-examination, stated that Hakru did not make any effort to save Sarma. He explained that fire erupted suddenly and thus, no attempt could be made to douse the same. 15. P.W.-4 Dinesh admitted in his cross-examination that by the time they reached the place of the incident, Sarma had fallen down and Hakru also reached the place of incident with them. 16. P.W.-5 Jeevna being the father of the deceased and Hakru also admitted in his cross-examination that except Sarma, all the persons ran to the spot from their house at a later point of time. 17. P.W.-6 Kailash admitted in his cross-examination that the assailants were in five in number whereas, the alleged eyewitnesses were six in number. 18. Thus, there is a serious discrepancy in the statements of the prosecution witness regarding the time of their arrival at the spot. Furthermore, the evidence of the medical jurist and the investigating officer regarding the absence of wire marks on the dead body; the duration for which, Sarma's body would have kept burning for it to present the signs which were noticed in the postmortem report also belies the claim of the eye-witnesses that the incident was perpetrated at 05.30 in the evening. This significant contradiction in the time of incident also goes to the root of the matter. This significant contradiction in the time of incident also goes to the root of the matter. The fact that none of the alleged eye-witnesses made any attempt to save the victim even though they outnumbered the accused, creates a grave doubt regarding their presence at the spot when the incident took place. Thus, we are convinced that the eye-witnesses have not given a truthful account of the incident. The motive which has been attributed to the accused by the prosecution is said to be the fact that Hakru allegedly put-up the hut on the land owned by the accused. However, there is no evidence to this effect on the entire record and rather, the investigating officer's statement indicates that Hakru had set up the shop on government land adjacent to the highway. 19. In wake of the discussion made herein above, we are not convinced that the evidence of the so-called eye-witnesses is reliable enough so as to uphold the conviction of the accused. We may note here that the trial court drew much water out of the fact that when the accused Dungaria @ Narayan was arrested, he was having some marks of singeing on his head and hair and that he did not give any explanation for the same and thus, his involvement in the case was corroborated. In this regard, we may simply observe that the fact that the accused Dungaria was having some burn marks on his person at the time of his arrest may give rise to a strong suspicion against him but in absence of any positive evidence to establish his culpability for the murder of Sarma, the accused cannot be held guilty for the charges. 20. As a result, we are of the opinion that the findings recorded by the trial court while arriving at a finding of guilt against the accused appellant are not fortified from any conclusive or reliable evidence. 21. As we have held that the testimony of the so-called eyewitnesses is not reliable and as there exists no other evidence whatsoever on the record of the case so as to affirm the guilt of the accused, we hereby set aside the impugned judgment dated 17.03.2016 passed by the learned Additional Sessions Judge, Banswara and acquit the appellants of all the charges by giving them the benefit of the doubt. The appellants are in custody. The appellants are in custody. They shall be released from prison forthwith if not wanted in any other case. 22. However, keeping in view the provisions of Section 437-A Cr.P.C., each of the appellants shall furnish a personal bond in the sum of Rs. 40,000/- and a surety bond in the like amount before the learned Trial Court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, they shall appear before the Supreme Court. 23. The appeal is allowed in these terms. 24. Record be returned to the trial court forthwith.