Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 287 (RAJ)

Gehrilal v. State

2019-01-23

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2019
JUDGMENT : Sandeep Mehta, J. The appellant Gehrilal stands convicted vide judgment dated 21.02.2013 passed by the Sessions Judge, Pratapgarh in Sessions Case No.21/2010 for the offence under Section 302 IPC and sentenced to undergo life term imprisonment for life alongwith a fine of Rs. 5000/- and in default of payment of fine, further to undergo three month's rigorous imprisonment. 2. Being aggrieved of his conviction and sentence, the convict has preferred the instant appeal, through jail. The appeal was delayed. The delay was condoned and Mr. Ashok Kumar, Advocate, was appointed as Amicus Curiae to argue to the case on behalf of the convict. 3. Brief facts of the case are that P.W.1 Vikram S/o Radheyshyam Meena submitted a written report (Ex.P/1) to the Station House Officer, Police Station Chhoti Sadari, Camp Achalpura on 07.10.2009 at about 12.30 a.m. alleging inter alia that on 06.10.2009, Devi Lal S/o Unkarlal Meena came around at about 11 o'clock and informed him that Gehrilal was assaulting the informant's father Shri Radheyshyam by lathis and stones at the Mahadev Chauraha, Achalpura. On receiving this information, four persons including the first informant and Devilal rushed towards the Mahadev Chauraha and saw Gehrilal inflicting a lathi blow on the head of Radheyshyam due to which, he fell down. While Radheyshyam was lying down, the accused crushed the head of Radheyshyam, by a stone due to which he became unconscious and blood started oozing out of his wounds. The informant and his companions tried to catch hold of Gehrilal, but he escaped. It was further stated that Nandlal S/o Prabhulal and Bherulal S/o Nathuji Meena were sitting nearby and they also witnessed the incident. It was also alleged in the written report that the informant's father and the deceased Gehrilal were having a longstanding property dispute with each other and due to this enmity, Gehrilal fatally assaulted his father leading to his instantaneous death. The informant categorically mentioned in the report that he alongwith Ratan, Devilal, Babulal and Jeevan put the dead body of his father on a cot and carried it to their house. The informant contacted the Sarpanch Chainram, who called police police. The SHO, Police Station Chhoti Sadari reached the scene of occurrence, upon which, the FIR was submitted to him. On the basis of this report, FIR No.216/2009 was registered at the Police Station Chhoti Sadari and investigation was commenced. 4. The informant contacted the Sarpanch Chainram, who called police police. The SHO, Police Station Chhoti Sadari reached the scene of occurrence, upon which, the FIR was submitted to him. On the basis of this report, FIR No.216/2009 was registered at the Police Station Chhoti Sadari and investigation was commenced. 4. The dead body of Shri Radheyshyam was subjected to postmortem and as per the medical expert's opinion, the cause of death was opined to be the multiple fractures to frontal bone, orbital bone and mandible bones of the deceased. The blood stained clothes etc. of the deceased were seized. The blood stained stones allegedly used by the accused to assault and kill the deceased were seized lying nearby the place of occurrence. The lathi allegedly used by the accused to assail the deceased was recovered from his house in furtherance of the information provided by him to the Investigating Officer under Section 27 of the Evidence Act. After concluding investigation, a charge-sheet was filed against the accused appellant in the court concerned for the offence under Section 302 IPC. The offence being exclusively Sessions triable, the case was committed to the Sessions Judge, Pratapgrah for trial. Learned Sessions Judge framed charge against the accused for the said offence, who pleaded not guilty and claimed trial. The prosecution examined as many as 17 witnesses in support of its case. The circumstances appearing in the prosecution evidence were put to the accused in his statement recorded under Section 313 CrPC. who denied the same and claimed to have been falsely implicated in the case. Upon conclusion of the trial, the trial court proceeded to convict and sentence the appellant as above vide the impugned judgment. Hence this appeal. 5. Mr. Ashok Kumar, learned Amicus Curiae, representing the appellant, vehemently and fervently contended that the two independent prosecution witnesses Nandlal (P.W.3) and Bherulal (P.W.4) whose presence at the spot is absolutely natural did not support the prosecution story and were declared hostile. Devilal (P.W.10), who allegedly saw the accused appellant assaulting Shri Radheyshyam and went to call the first informant Vikram (P.W.1), admitted in his cross-examination that by the time, he, Jeevan and Vikram reached the scene of occurrence, the accused had ran away. Devilal (P.W.10), who allegedly saw the accused appellant assaulting Shri Radheyshyam and went to call the first informant Vikram (P.W.1), admitted in his cross-examination that by the time, he, Jeevan and Vikram reached the scene of occurrence, the accused had ran away. He vehemently submitted that Devilal is a chance witness and hence, his presence at the scene of occurrence is doubtful and his evidence as an eye-witness of the incident deserves to be discarded. He further contended that from the statement of Jani Bai (P.W.2), it is manifest that the house of the deceased is located at a distance of 200 feet from the Mahadev Chauraha and thus, it cannot be believed that the accused would still be available and waiting at the scene of occurrence when Vikram reached the place of incident after being sounded by Devilal about the assault. He, thus, urges that ex facie Devilal and Vikram have been cooked up as eye-witnesses of the incident and as a matter of fact, the case is of a blind murder, which has been fastened upon the accused for oblique motives. He further stressed upon the fact mentioned in the FIR as well as in the statement of Vikram (P.W.1) and Devilal (P.W.10) that they carried the dead body of Shri Radheyshyam to their house on a cot. He referred to the statement of the Investigating Officer Surendra Singh (P.W.12), who admitted in his cross-examination that he reached the place of occurrence about half an hour after the incident and that the dead body of the deceased Radheyshyam was lying at the spot when he arrived. He, thus, urges that the story put forth in the FIR that the first informant and his companions took away the dead body of Radheyshyam to their house is totally contradicted by the evidence of the Investigating Officer and hence, it has to be presumed and concluded that the entire story of prosecution is false and fabricated. He further urged that there were no means of illumination at the scene of occurrence and that the incident took place late in the night and hence, it was not possible for the eye-witnesses to have seen the incident. He further urged that there were no means of illumination at the scene of occurrence and that the incident took place late in the night and hence, it was not possible for the eye-witnesses to have seen the incident. He further submitted that the statements of the eye-witnesses are not reliable and the recovery of the lathi made at the instance of the accused after nearly 12 days of the incident is also a planted one. He further urged that the material prosecution witnesses have come out with a theory that the accused and the deceased were having a previous property dispute, but no document pertaining to any such dispute were collected by the Investigating Officer nor were exhibited during trial. Thus, the evidence of motive put forth by the prosecution so as to bring home the charges against the accused is not established. 6. In support of his contentions, learned Amicus Curiae relied upon the following judgments of Hon'ble Supreme Court :- (1) Jarnain Singh Vs. State of Punjab, (2009) 2 SCC(Cri) 115 (2) Shankarlal Vs. State of Rajasthan, (2005) SCC(Cri) 579 and he implored the court to accept the appeal and acquit the appellant while setting aside the impugned judgment. 7. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel and urged that Devilal is an independent witness. He had no animosity whatsoever against the appellant so as to make an endeavour to falsely implicate him for the murder of Radheyshyam. His evidence is absolutely natural and without any contradictions. He further submitted that even the hostile witnesses Nandlal (P.W.3) and Bherulal (P.W.4) stated in their examination-in-chief that they saw Gehrilal and Radheyshaym fighting with each other at the Mahadev Chauraha. Thus, as per the learned Public Prosecutor, the fact regarding presence of the accused appellant at the scene of occurrence is established even by the evidence of the hostile eye-witnesses. He vehemently and fervently contented that the evidence of eye-witnesses Devilal is corroborated by various other circumstances, viz. testimony of the hostile witnesses and the recovery of the blood stained lathi at the instance of the accused-appellant. He further submitted that the accused was having a longstanding property dispute with the deceased and thus, he had a strong motive so as to commit his murder. testimony of the hostile witnesses and the recovery of the blood stained lathi at the instance of the accused-appellant. He further submitted that the accused was having a longstanding property dispute with the deceased and thus, he had a strong motive so as to commit his murder. He, thus, urged that the findings recorded by the learned trial court in the impugned judgment for convicting the appellant are based on just, fair and apropos appreciation of the evidence and no interference is warranted therein. Learned Public Prosecutor further urged that the so-called contradiction pointed out by the defence counsel in the prosecution case from the FIR and the evidence of Vikram (P.W.1) and Devilal (P.W.10) that the dead body of Shri Radheyshyam was taken away to the house and the variance in this regard in the testimony of the Investigating Officer that he saw the dead body at the scene of occurrence, can very well be explained inasmuch as, the witnesses must have taken the dead body to the house of the deceased after the SHO had arrived. He submitted that it is absolutely impossible to believe that the family members with a rural background having strong moral values would allow the dead body to lie unattended in open for the whole night. Thus, as per learned Public Prosecutor, this so called contradiction in the prosecution evidence stands duly explained. With these contentions, he sought dismissal of the appeal. 8. We have considered the submissions advanced at bar and have threadbare evaluated and re-appreciated the evidence of the material prosecution witnesses. 9. Firstly, we propose to consider the issue as to whether the prosecution has been able to establish presence of the appellant at the scene of occurrence by cogent convincing evidence. Even the two hostile witnesses Nandlal (P.W.3) and Bherulal (P.W.4) stated that at about 10 o'clock in the night, they were sitting at the Mahadev Chauraha and saw Gehrilal and Radheyshyam quarreling and hurling abuses at each other. Manifestly, thus, the presence of Gehrilal at the Mahadev Chauraha and his engaging in a quarrel with the deceased is proved even from the evidence of the hostile eye-witness because no cross-examination whatsoever was made from these two witnesses on this aspect. The prosecution case principally hinges on the evidence of Jeevanlal (P.W.9) and Devilal (P.W.10). Manifestly, thus, the presence of Gehrilal at the Mahadev Chauraha and his engaging in a quarrel with the deceased is proved even from the evidence of the hostile eye-witness because no cross-examination whatsoever was made from these two witnesses on this aspect. The prosecution case principally hinges on the evidence of Jeevanlal (P.W.9) and Devilal (P.W.10). The names of both these witnesses are mentioned as eye-witnesses in the written report (Ex.P/13) submitted by Vikram Singh. So far as Jeevanlal is concerned, while deposing on oath, he stated that the incident took place at about 9 to 9.30 p.m. in the night. Ex facie, the version of this witness is totally contradicted from the evidence of Devilal and the narration of events in the FIR (Ex.P/13) lodged by Vikram, wherein, the time of the incident is stated to be about 11 o'clock. Thus, evidence of Jeevan suffers from a material contradiction regarding the time of incident and he does not appear to be an eye-witness of the incident and his evidence deserves to be discarded. Devilal (P.W.10) stated that he was going towards his house after completing his work. When he reached Mahadev Chauraha, he saw Gehrilal assaulting Radheyshyam by a lathi. Immediately on seeing the assault, the witness rushed to call Vikram S/o Radheyshyam. He did not state about the presence of Jeevan at the scene of occurrence when he saw Gehrilal assaulting Radheyshyam. In cross-examination, no suggestion whatsoever was given to the witness that he was having any enmity with accused Gehrilal so as to inspire him to falsely implicate the accused for the serious charge of murder of Radheyshyam. Devilal in his cross-examination further stated that by the time he, Vikram, Jeevan and others returned to the scene of occurrence, the accused had ran away. In this background, this court is duly satisfied that only Devilal, Bherulal and Nandlal were eye-witnesses of the incident. Devilal saw the accused appellant assaulting the deceased and went to call Vikram from his house, which is at a distance of about 200 feet and went back to the scene of occurrence. The total number of injuries caused to the deceased Radheyshyam, as per the postmortem report, is 6 and hence, the assult must have concluded within a matter of moments. The total number of injuries caused to the deceased Radheyshyam, as per the postmortem report, is 6 and hence, the assult must have concluded within a matter of moments. Thus, it is not possible to believe that the accused would still be waiting at the spot for the arrival of these witnesses. Hence, this court is inclined to accept the contention of the learned Amicus Curiae that Vikram could not have seen the appellant assaulting the deceased because by the time he reached the scene of occurrence with Devilal, the assailant must have gone away. Dr. Arun Mathur (P.W.8), who conducted postmortem upon the body of the deceased affirmatively stated in his evidence that the Radheyshyam expired as a result of large number of traumatic blunt weapon injuries caused on his head, face etc. which were sufficient in the ordinary course of nature to cause death. So far as the fervent submission of Mr. Ashok Kumar, learned Amicus Curiae that the narration made in the FIR and the statements of Vikram (P.W.1) and Devilal (P.W.10) regarding them having removed the dead body being contradicted by the evidence of the SHO is concerned, we are of of the opinion that this contradiction, though superficially attractive, does not impact the prosecution case very significantly so as to discredit unimpeachable testimony of the eye-witness Devilal. In all probability, the dead body must have been removed from the scene of occurrence after the SHO (P.W.12) had arrived there. In normal course of human conduct, it is not possible to believe that the family members would leave the dead body of a near one unattended for whole of the night. Thus, in all likelihood, the dead body of Shri Radheyshyam must have been removed from the scene of occurrence after arrival of the SHO and the minor contradiction in this regard in the evidence of Devi Lal and Vikram, vis-a-vis that of the SHO Surender Singh (P.W.12) can be overlooked. The contention of Mr. Ashok Kumar that Devilal is a chance witness and as such, his evidence is not worthy of reliance, does not convince us even for a moment. The submission so advanced by Mr. Ashok Kumar is based on the aspersion that there was no possibility of Devilal being present at the scene of occurrence in the normal course of events. We are least impressed by the said argument. The submission so advanced by Mr. Ashok Kumar is based on the aspersion that there was no possibility of Devilal being present at the scene of occurrence in the normal course of events. We are least impressed by the said argument. Devilal in a very natural flow and in convincing terms stated that he was returning home after having completed his work, when he saw the appellant assaulting the deceased at the Mahadev Chauraha. His conduct in immediately rushing to the house of the deceased for informing his son Vikram is absolutely natural. The witness also stated about presence of Nandlal and Bherulal nearby the place of incident and thus, the evidence of this witness gets strong corroboration from numerous circumstances apart from the fact that the conduct of the witness is very natural and that he had no occasion whatsoever to falsely implicate the accused in this case. The witness is not related to the family of the deceased in any manner and therefore, there was no occasion for him to falsely implicate the accused for the murder of Shri Radheyshyam. 10. So far as the recovery of lathi is concerned, we are of the opinion that as the same was made after 105 days of the incident, the same cannot be relied upon as an incriminating circumstance against the appellant. It is absolutely impossible to believe that the accused would retain and preserve the worthless broken pieces of lathi so that the same could be recovered and used in evidence against him at a subsequent stage. 11. The Supreme Court judgments in the cases of Jarnail Singh (supra) and Shankarlal (supra) relied upon by learned Amicus Curiae for discarding the testimony of a chance witness are totally distinguishable on facts because in both these cases, the Hon'ble Supreme Court held that the conduct post the incident of the sole eye-witness, who being a chance witness post the incident was unnatural. As we have discussed above, conduct of Devilal after witnessing the incident was absolutely natural meeting the expectations of natural human behaviour. As a result, we are of the view that the evidence of Devilal cannot be discarded on the strength of ratio of these two judgments as the same are distinguishable on facts. 12. As we have discussed above, conduct of Devilal after witnessing the incident was absolutely natural meeting the expectations of natural human behaviour. As a result, we are of the view that the evidence of Devilal cannot be discarded on the strength of ratio of these two judgments as the same are distinguishable on facts. 12. As an upshot of the above discussion, we hereby hold that the learned trial court appreciated the evidence available on record in just, fair and apropos manner while recording the guilt of the appellant vide the impugned judgment dated 21.02.2013 which does not suffer from any illegality or infirmity whatsoever warranting interference by this court in the exercise of its appellate jurisdiction. The conviction of the appellant as for the offences under Section 302 IPC vide impugned judgment dated 21.02.2013 passed by the Sessions Judge, Pratapgarh in Sessions Case No.21/2010 is based on sound, unimpeachable, cogent and convincing evidence. Thus, we find no merit in the instant appeal, which is hereby dismissed.