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2022 DIGILAW 2001 (RAJ)

Shivshankar v. State Of Rajasthan

2022-07-12

PANKAJ BHANDARI, SAMEER JAIN

body2022
JUDGMENT Pankaj Bhandari, J. - Though the matter has come up before the Court on the miscellaneous application for suspension of sentence No. 556/2022, but with the consent of learned counsel for the parties, the matter is heard finally at this stage. 2. The appellant has preferred the instant appeal aggrieved by the judgment and order of sentence dated 16.01.2016 passed by the learned Additional Sessions Judge No. 1, Bundi whereby the appellant has been convicted for offence under Section 302 of the Indian Penal Code (hereinafter referred to as "the IPC") and has been sentenced to life imprisonment and fine of Rs. 5,000/- and on non-payment of the fine, to further undergo six months simple imprisonment. 3. Briefly stated the facts of the case are that on 27.02.2014, complainant - Om Prakash lodged an FIR that on 21.02.2014 his mentally retarded brother Shivshankar hit his brother Murlidhar with an axe on his head at 11.00 a.m. and that Murlidhar expired on 27.03.2014 during treatment. The police after due investigation submitted a charge-sheet against the accused appellant. The appellant denied the charges levelled against him and sought trial. As many as 14 witnesses were examined on behalf of the prosecution and as many as 21 documents were exhibited. Explanation of the accused appellant was recorded under Section 313 Cr.P.C. and after hearing final arguments, the trial Court has convicted the accused appellant for offence under Section 302 IPC and sentenced him as hereinabove mentioned. 4. It is contended by learned Amicus Curiae appearing on behalf of the appellant that there is no eyewitness to the incident as such and all the alleged eyewitnesses have turned hostile. The recovery of the axe is doubtful as it was recovered from the place where the police had already visited and prepared the site plan. It is also contended that as per the FSL report, the axe was not found with stains of human blood and therefore, recovery cannot be used as an evidence against the accused. It is further contended that the Court below has convicted the appellant only on the ground of recovery and the statement of Gopal Mewara (PW-2), who has stated that he has seen the appellant standing near the place of occurrence with an axe in his hands. It is further contended that the Court below has convicted the appellant only on the ground of recovery and the statement of Gopal Mewara (PW-2), who has stated that he has seen the appellant standing near the place of occurrence with an axe in his hands. In support of his contentions, learned counsel for the appellant has placed reliance on the judgments in Musheer Khan Alias Badshah Khan & Anr. v. State of Madhya Pradesh (2010) 2 SCC 748 and Trilok Chand & Ors. v. State of Rajasthan: D.B. Criminal Appeal No. 785/2003 & one connected matter passed by this Court on 13.09.2013. 5. Learned Additional Government Advocate has opposed the appeal. It is argued that the Court below has passed the impugned judgment and order on the facts and circumstances of the case. The witnesses, who are related to the appellant, have turned hostile and merely because they have turned hostile, it cannot be inferred that the appellant is innocent. The fact is that the brother of the appellant has lodged the FIR wherein he has specifically alleged that the appellant had given blow of axe on the head of the deceased, this was an important piece of evidence. 6. It is also argued that the fact that the appellant was armed with an axe is established from the statement of Gopal Mewara (PW-2) and the recovery was also effected from him. It is further contended that it is not a case of single injury and the appellant purposely knowing pretty well that the blow of axe will result in death of the deceased gave multiple blows on his person. Hence, the impugned judgment of conviction of the accused has rightly been passed by the Court below. 7. We have considered the contentions and have gone through the material on record. 8. It is evident that as per the first information report, the incident took place on 21.02.2014 at 11.00 a.m. As per the FIR, the allegation was only of causing one injury on the head of the deceased by an axe, however, as per the postmortem report (Ex. P-19), the deceased died due to coma brought about as a result of multiple head and facial injuries. On perusal of the postmortem report (Ex. P-19), the deceased died due to coma brought about as a result of multiple head and facial injuries. On perusal of the postmortem report (Ex. P-19), it is evident that the deceased had sustained as many as seven injuries, which were on the frontal region of the head, on the nose and left eye. It is indeed strange that no FIR was lodged even when a person, who has sustained several sharp injuries on the vital part of the body was admitted in SMS Hospital Jaipur and no information was even sent by the hospital to the police and the FIR was lodged after an inordinate delay of six days. 9. Though plea of insanity has not been taken as a defence by the appellant, but from perusal of the statement of Gopal Mewara (PW-2) and also the FIR (Ex. P-9), it is evident that the complainant has mentioned that his brother, the present appellant, is mentally unsound for last 17 years. Gopal Mewara (PW-2) in his cross-examination had admitted that the accused suffered from bouts of insanity and he is undergoing treatment at Kota. On re-examination by the Public Prosecutor, the witness has stated that if the appellant was suffering from insanity, the same would be within the knowledge of his family members. 10. Omprakash (PW-4), who is brother of the deceased and also the complainant, who has lodged the FIR, in his examination-in-chief has stated that when he reached the place of occurrence, Murlidhar was lying on the ground and Shivshankar was standing in the nearby room. He has also stated that Shivshankar was not carrying any weapon. This witness has turned hostile and in his cross-examination, he has stated that he has not seen the appellant hitting the deceased. Prem Narain (PW-5), who is also brother of the deceased, is a hearsay witness, who has stated that villagers told him that his brother, the present appellant, has hit his other brother Murlidhar. This witness was also declared hostile and he has stated that he was not present at the place of occurrence. Ramdev (PW-6) has also turned hostile and he has stated that when he reached the place of occurrence, Murlidhar was lying on the ground and Shivshankar was not present. Radhey Shyam (PW-7) has denied going to the place of occurrence and he has been declared hostile. Ramdev (PW-6) has also turned hostile and he has stated that when he reached the place of occurrence, Murlidhar was lying on the ground and Shivshankar was not present. Radhey Shyam (PW-7) has denied going to the place of occurrence and he has been declared hostile. Consequently, all the alleged eyewitnesses have turned hostile and only witness on the basis of whose evidence, the appellant has been convicted, is Gopal Mewara (PW-2). 11. Gopal Mewara (PW-2) in his examination-in-chief, has stated that when he reached the place of occurrence, Murlidhar was lying on the ground and Shivshankar was standing near him and was having an axe in his hands. However, in the later part of his examination-in-chief, he has stated that when he reached, Shivshankar had already left the place of occurrence. He has also stated that Shivshankar was not mentally sound. In his cross-examination, he has stated that when he saw Shivshankar from a distance of 50 feet and at that time, he was having an axe. He has admitted that other than axe, if Shivshankar was carrying something else, he does not know. This witness, in his cross-examination, has also admitted that Shivshankar has bouts of insanity for which he is undergoing treatment at Kota. Admittedly, from the evidence of Gopal Mewara (PW-2), it is clear that he is not an eyewitness to the incident and when he reached at the place of occurrence, the appellant was not present there. 12. Other evidence on the basis of which the trial Court has come to the conclusion that the appellant has committed the alleged offence is the recovery of the axe. The site plan of the place of incident (Ex. P-3) was prepared on 01.03.2014 at 11.15 a.m. and Mark "G" is stated to be a Kutcha House. Exhibit P-16 is the site plan pertaining to the recovery of the axe. The axe is said to be recovered from the portion Mark "X", which is the same portion, which has been marked as "G" in Exhibit P-3. The recovery has been effected on 02.03.2014 from the same place which the police had visited a day before. In Exhibit-P-16, it is mentioned that the axe was lying behind the door. The recovery of the axe from the place, which was already seen by the police a day before thus creates doubt. The recovery has been effected on 02.03.2014 from the same place which the police had visited a day before. In Exhibit-P-16, it is mentioned that the axe was lying behind the door. The recovery of the axe from the place, which was already seen by the police a day before thus creates doubt. In addition to the above, from the FSL Report, it is clear that no human blood was detected from the axe. 13. Since there is no eyewitness to the incident and the recovery of axe is doubtful, further axe not being found stained with blood clearly goes to show that the trial Court was not justified in convicting the appellant for offence under Section 302 IPC. The trial Court has further erred in convicting the accused on the ground that the witnesses being relatives have turned hostile. Delay in lodging the FIR, evidence of the witnesses that the appellant was undergoing treatment for insanity are additional grounds, which were not considered by the Court below. We are thus of the considered view that the impugned judgment and order of conviction and sentence cannot be sustained. 14. In the result, appeal filed by the appellant is allowed. The impugned judgment and order of sentence dated 16.01.2016 passed by trial Court is set aside. The appellant is acquitted of the charges levelled against him. The appellant being in jail be set at liberty forthwith, if not required in any other cases or for any other purpose. 15. Appellant is directed to furnish personal bond in the sum of Rs. 50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months. 16. In view of disposal of the appeal, miscellaneous application for suspension of sentence is also disposed of.