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2022 DIGILAW 2320 (RAJ)

Jagdish v. State Of Rajasthan

2022-08-29

PANKAJ BHANDARI, SAMEER JAIN

body2022
JUDGMENT Pankaj Bhandari, J. - The appellants have preferred this appeal aggrieved by the judgment and order of conviction dated 28.11.1989 whereby the appellants have been convicted for offences under Section 302 read with Section 34 and Section 323 of the Indian Penal Code (hereinafter referred to as "the IPC") and have been sentenced to undergo life imprisonment and a fine of Rs.5,000/- each. On non- payment of fine, to further undergo three months simple imprisonment for offence under Section 302/34 IPC and appellants have been sentenced to one month simple imprisonment for offence under Section 323 IPC. 2. Succinctly stated the facts of the case are that an FIR was lodged on 16.06.1986 by Malaram at 1.00 a.m. at Police Station, Khatu Shyamji wherein it was mentioned that at about 4.00 p.m., the appellants and four other co-accused assaulted Ganpat Ram near the well and then assaulted Ganpat Ram's wife - Smt. Jadavali. After giving beating and on shouting of co-accused Rameshwar, present appellants threw Smt. Jadavali into the well. Thereafter, the informant climbed down into the well and held Jadavali in his lap for about one hour and then she was exhumed from the well. The police registered a case under Section 302 IPC against the present appellants and four others and after investigation, filed charge-sheet against six persons including the present appellants. The appellants and the other charge-sheeted accused denied the charges and sought trial, upon which, as many as 14 witnesses were examined on behalf of the prosecution, explanations of the accused were recorded under Section 313 Cr.P.C. and six witnesses were examined in defence. After hearing the arguments, the trial Court acquitted four of the accused and convicted the present appellants, aggrieved by the judgment of conviction and the sentence, the appellants have preferred this appeal. 3. It is contended by Mr. V.R. Bajwa, Senior Advocate appearing for the accused appellants that the case of the present appellants is akin to that of the other four charge-sheeted accused. In the initial FIR lodged by Malaram, it was mentioned that all the six persons gave beating to the deceased - Jadavali and thereafter, five of them threw her into the well. It is further argued that learned trial Court has observed that the witnesses Malaram (PW-6) and Ganpat (PW-7) are not fully reliable and on the said basis, has acquitted four of the co-accused. It is further argued that learned trial Court has observed that the witnesses Malaram (PW-6) and Ganpat (PW-7) are not fully reliable and on the said basis, has acquitted four of the co-accused. It is also contended that Padmaram (PW-1), Dhapli (PW-2), Balu (PW-3) and Mangla (PW-4), who were the so-called eye witnesses, have not supported the case of the prosecution and have turned hostile. It is further contended that in the FIR and the statements recorded under Section 161 Cr.P.C. of Malaram (PW-6) and Ganpat (PW-7) allegation of giving beating to the deceased was on all the accused and the allegation of throwing her in the well was on five of the accused, however, later on, the witnesses have changed their version and have levelled the allegation with regard to throwing the deceased in the well against the present appellants only. 4. It is contended that the statements of Malaram (PW-6) and Ganpat (PW-7) do not find support with the postmortem report of the deceased. As per the doctor, the deceased did not have any injuries on her back and the story as narrated by the prosecution is untrue. It is also contended that Ganpat (PW-7), who happens to be husband of the deceased, does not appear to be a trustworthy witness for the very reason that he has sustained two bruises, a superficial abrasion and a lacerated wound of the size two and a half centimeter on his right lower leg and he was in prefect condition and there is no reason stated as to why he did not call for help to exhume his wife, then Malaram (PW-6) went inside the well and stayed in the well for one hour. 5. It is contended by learned Senior Advocate that the presence of Ganpat at the place of occurrence is doubtful for the very reason that he had stated that after his wife fell in the well, Malaram went down and stayed in the well for one hour and there is no version of husband - Ganpat (PW-7) as to what he did for one hour when his wife was inside the well. Learned Senior Counsel for the appellants has placed reliance on Balaka Singh & Ors. v. The State of Punjab: AIR 1975 SC 1962 , Jodhraj & Ors. Learned Senior Counsel for the appellants has placed reliance on Balaka Singh & Ors. v. The State of Punjab: AIR 1975 SC 1962 , Jodhraj & Ors. v. State of Rajasthan: (2020) 14 SCC 205 , Malleshappa v. State of Karnataka: JT 2007 (11) SC 234, State of U.P. v. Bhagwant & Ors.: JT 2003 (4) SC 131 and Kanakarajan Alias Kanakan v. State of Kerala: (2017) 13 SCC 597 . 6. Learned Additional Government Advocate appearing for the State has opposed the appeal, however, he has fairly admitted that the evidence against the present appellants is similar to that which was against the co-accused, who have been acquitted by the trial Court and there was improvement in the statement, which was recorded by the police under Section 161 Cr.P.C. and the statement, which was recorded before the Court below. His contention further is that the allegation that the present appellants gave beating to Ganpat (PW-7) is established from the statement of Ganpat (PW-7) and the conviction under Section 323 IPC of the appellants does not call for any interference by this Court. 7. We have considered the contentions and have carefully perused the material on record. 8. In the FIR, which was registered by Malaram (PW-6), it is specifically mentioned that Gopal and Jagdish came with sticks and started beating Ganpat and to save him, his wife Smt. Jadavali, who had come to fill water from the well, covered Ganpat and thereafter, all the accused gave beating to her. Thereafter, Rameshwar asked other co-accused to throw Smt. Jadavali in the well and all the accused pulled Smt. Jadavali towards the well and threw her in the well. Similar is the statement given to the police by Malaram (PW-6) and Ganpat (PW-7). Both these witnesses were not found to be fully trustworthy by the trial Court. Four of the alleged eye-witnesses have turned hostile and the only witnesses on the basis of which the present conviction has been arrived at by the Court below are Malaram (PW-6) and Ganpat (PW-7). We deem it proper to elaborately deal with the evidence of Malaram (PW-6) and Ganpat (PW-7). 9. Four of the alleged eye-witnesses have turned hostile and the only witnesses on the basis of which the present conviction has been arrived at by the Court below are Malaram (PW-6) and Ganpat (PW-7). We deem it proper to elaborately deal with the evidence of Malaram (PW-6) and Ganpat (PW-7). 9. Malaram (PW-6) and Ganpat (PW-7) in their statements recorded under Section 161 Cr.P.C. narrated the incident and have stated that beating was given to the deceased by all the accused and thereafter, she was thrown in the well by all the accused except Rameshwar. However, before the Court below, they have changed their version and have stated that all the accused gave beating to the deceased and thereafter, Rameshwar asked the accused to throw her in the well. Gopal, Jagdish, Rameshwar, Chhotudi with Chandri dragged her towards the well and the present appellants threw her in the well. Similar is the version given by Ganpat (PW-7). The trial Court has disbelieved the statements of the witnesses and has acquitted four of the co- accused and has come to the conclusion that deceased was not dragged by the accused and was not given beating by the accused. The Court below had only relied on that part of the statements wherein witnesses have said that the present appellants threw her in the well on the saying of Rameshwar. 10. The evidence of Malaram (PW-6) turns out to be completely untrustworthy as he has stated that when the deceased was exhumed from the well, she was alive. This statement is also negated by the evidence given by the Doctor, who conducted the postmortem report and has stated that the injury, which was caused to the deceased, would have resulted in instant death. Evidence of Malaram (PW-6) and Ganpat (PW-7) both become untrustworthy as they have stated that the accused appellants and the other co-accused gave beating to the deceased and considering her to be on the verge of death, threw her inside the well, however, there were no injuries on the back of the deceased to support the evidence given by Malaram (PW-6) and Ganpat (PW-7). The trial Court has come to the conclusion that the evidence of Malaram (PW-6) and Ganpat (PW-7) is not trustworthy and on that basis, has acquitted four out of the six accused. The trial Court has come to the conclusion that the evidence of Malaram (PW-6) and Ganpat (PW-7) is not trustworthy and on that basis, has acquitted four out of the six accused. The case of the present appellants is not severable from that of the acquitted accused as initially in the FIR, the allegations of beating the deceased and throwing her inside the well was on all the accused. 11. In Balaka Singh & Ors. v. The State of Punjab (supra), four persons were acquitted out of nine. The court held that the case of the convicted accused was not severable from that of acquitted accused and the entire prosecution case was discarded. In Jodhraj & Ors. v. State of Rajasthan (supra), the Apex Court held that if some accused are acquitted based on unreliability of particular witnesses or evidence, then that benefit must extend to all accused who are implicated based on testimony of those same unreliable witnesses. In Malleshappa v. State of Karnataka (supra), there was no reliable and trustworthy evidence, but there were many conjectures and surmises. In such circumstances, it was highly dangerous to convict any accused. In State of U.P. v. Bhagwant & Ors. (supra), the Court held that the witnesses were highly interested and partisan witnesses and the prosecution case was highly doubtful and even the presence of the witnesses have also found to be doubtful and the acquittal order was confirmed. In Kanakarajan Alias Kanakan v. State of Kerala (supra), the Apex Court held that if the testimony of the witnesses is not cogent and trustworthy, the benefit of doubt should go to the accused. 12. In the present case in hand, the testimony of Malaram (PW-6) and Ganpat (PW-7) was not found to be trustworthy by the trial Court, however, it has convicted the accused appellants only on the basis of the evidence that the present appellants were the persons who threw the deceased in the well. Though the theory of "falsus in uno, falsus in omnibus" does not apply in Indian Law, but when the material witnesses are over-implicating the accused and are later on changing their version before the Court below to implicate particular two accused, their story has to be disbelieved in toto. There is no reason whatsoever to treat the present appellants on a different footing than those who have been acquitted by the trial Court. 13. There is no reason whatsoever to treat the present appellants on a different footing than those who have been acquitted by the trial Court. 13. The evidence of Ganpat (PW-7) that the appellants gave beating to him, to that extent his statement can only considered to be true, however, the latter version which he has developed cannot be believed. Since the deceased has not sustained any injuries, the possibility that she slipped into the well cannot be ruled out. We therefore deem it proper to partly allow the present appeal and acquit the accused appellants for the offence under Section 302/34 IPC, however, the conviction and sentence of one month of the accused appellants under Section 323 IPC is upheld. 14 Bail bonds submitted by the appellants are cancelled. Appellants are directed to furnish personal bond in the sum of Rs.20,000/- each 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 appellants 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.