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2023 DIGILAW 455 (RAJ)

State of Rajasthan v. Megharam s/o Udaram Meghwal

2023-02-08

PRAVEER BHATNAGAR, VIJAY BISHNOI

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JUDGMENT : Bhatnagar, J. 1. The appellant State has filed an appeal under Section 378(iii) & (i) of the Cr.P.C. against the judgment dated 18.07.1991 passed by the District & Sessions Judge, Bikaner (for short 'the trial court') in Sessions Case No.46/89, whereby respondent Megharam was acquitted for the offences under Sections 147, 148, 302 and 323/149 IPC and other respondents Ladhuram, Babulal, Munaram, Himmataram, Gangaram, Bhojaram, Kojaram, Bhomaram, Panaram and Magnaram were acquitted for the offences under Sections 147, 148, 302/149 & 323/149 IPC. 2. Brief facts of the case are that one Bhikharam lodged a report (Exhibit-P/1) dated 20.03.1989 at Police Station Kolayat stating therein that on 21.03.1989 marriage of Govindram's son was going to be solemnized; however, on account of the enmity between Megharam's party and the complainant, he was forbidden to attend the marriage and the villagers called both the parties near the well on 20.03.1989 for settling their disputes. When the complainant's party, including Bhikharam Muknaram, Savantaram, Urjaram, Utmaram, Deeparam, Mohanram etc., reached the well, members of the accused party, namely Megharam, Bhomaram, Gangaram, Munaram, Babulal, Kojaram, Ladhuram, Magnaram, Bhojaram, Himmataram and Panaram were already standing there having Lathi, Bachiyan and Axe in their hands and attacked the complainant's party. Babulal inflicted an axe blow on the head of Bhikahram, and Megharam inflicted a lathi blow on the head of Sanvantaram. As a result, Savantaram became unconscious, and Deeparam, Urjaram, Muknaram, Utmaram and Mohanram also got injured in the incident. 3. On receiving the report (Exhibit-P/1), the police registered a case under Sections 341, 323, 147, 148 and 149 I.P.C. and started investigation. 4. Savantaram succumbed to his injuries, and his postmortem (Exhibit-P/12) was done on 22.03.1989, and other persons, namely Muknaram, Deeparam, Urjaram, Tanaram, Bhikharam, Mohanram & Utmaram, suffered injuries. 5. After a thorough investigation, the police filed a challan against the accused before the Addl. Munsif and Judicial Magistrate No.1, Bikaner, after that, the case was committed to the trial court. 6. The accused persons were read over the charges on 22.5.1989; however, they denied the same and claimed trial. In support of its case, the prosecution has produced as many as thirteen witnesses and got the statements of accused respondents recorded under Section 313 Cr.P.C.; however, they did not examine any witness. 7. 6. The accused persons were read over the charges on 22.5.1989; however, they denied the same and claimed trial. In support of its case, the prosecution has produced as many as thirteen witnesses and got the statements of accused respondents recorded under Section 313 Cr.P.C.; however, they did not examine any witness. 7. After hearing arguments advanced by learned counsel for the parties and scrutinizing the evidence available on record, the trial court acquitted the accused-respondents for the offences punishable under Sections 147, 148, 302, 302/149 & 323/149 IPC. 8. Assailing the judgment dated 18.07.1991 passed by the trial court, the learned Public Prosecutor submitted that the trial court has grossly erred in acquitting the respondent Megharam for the offences under Sections 147, 148, 302 and 323/149 IPC and other respondents Ladhuram, Babulal, Munaram, Himmataram, Gangaram, Bhojaram, Kojaram, Bhomaram, Panaram & Magnaram for the offences under Sections 147, 148, 302/149 & 323/149 IPC. 9. The counsel argued that though the eyewitnesses have supported the prosecution case, yet the trial court illegally disbelieved their testimonies and erred in acquitting the accused respondents. Furthermore, it is contended that the learned trial court has also erred in not considering the statements of PW-9 Dr R.K. Gehlot and PW-12 Dr Nar Singh Bittu. 10. The learned counsel argued that the statements of prosecution witnesses reveal that the accused party attacked the complainant's party when they assembled for compromise. He further argued that the learned trial court has erred in recording the finding that the prosecution needs to explain the injuries sustained by the accused respondents. He further argued that the prosecution need not to explain the injuries, which are simple in nature and in the present case injuries sustained by the accused respondents were simple in nature. Therefore, the appellant prays for setting aside the impugned judgment and conviction of the respondents for the offences under Sections 147, 148, 302 and 323/149 of the Indian Penal Code. 11. Per contra learned counsel for the respondents argued that the impugned judgment does not suffer from any infirmity. It is contended that the learned trial court has meticulously considered every aspect regarding the credibility of all the material eyewitnesses. 12. Learned counsel further argued that the learned trial court had rightly noticed the discrepancies in the statements of prosecution witnesses, and the learned trial court was correct in not relying upon the evidence of the eyewitnesses. It is contended that the learned trial court has meticulously considered every aspect regarding the credibility of all the material eyewitnesses. 12. Learned counsel further argued that the learned trial court had rightly noticed the discrepancies in the statements of prosecution witnesses, and the learned trial court was correct in not relying upon the evidence of the eyewitnesses. The learned counsel contended that the prosecution has suppressed the material facts regarding injuries caused to the accused respondents, and its version is inconsistent. 13. It is asserted that in the F.I.R., it has been stated that all the assailants were armed with weapons, and when the complainant's party reached the scene of offence, they attacked them. In contrast, the witnesses have deposed different versions before the trial court, and the learned trial court rightly disbelieved their testimonies. 14. It is also pleaded that the independent eyewitnesses PW-7 Hari Singh and PW-8 Ranulal have not supported the prosecution story and have been declared hostile. After a lengthy cross-examination by the learned Public Prosecutor, they denied the prosecution story. 15. The counsel further argues that no case for interference in the impugned judgment passed by the learned trial court is warranted and prays for dismissal of the present appeal. 16. Heard learned counsel for the parties and perused the material available on record. 17. During the pendency of the present appeal, respondent No. 11 – Magnaram and respondent No. 2 – Laduram have died, and the appeal against them stands abated by this Court vide orders dated 24.01.2022 and 25.08.2022, respectively. 18. The first question that arises for consideration would be whether the death of the deceased Savantaram was homicidal? Regarding which the trial court has answered in the affirmative, holding the death to be homicidal, after relying on the statement of PW-9 Dr R.K Gehlot, who has proved the postmortem report (Exhibit-P/12). In our considered opinion, the finding of homicidal death recorded by the trial court, based upon the medical evidence, is neither perverse nor contrary to the record. Even otherwise, the cause of the deceased’s death remains unquestioned by the appellant or the respondents; therefore, this Court affirms the finding recorded by the learned trial court that the deceased Savantaram's death was homicidal. 19. Even otherwise, the cause of the deceased’s death remains unquestioned by the appellant or the respondents; therefore, this Court affirms the finding recorded by the learned trial court that the deceased Savantaram's death was homicidal. 19. The prosecution case rests on the following eyewitnesses to prove its case under Sections 147, 148, 323 and 302 of the Indian Penal Code:- PW-1 - Khiyan Ram PW-2 - Champaram PW-3 - Bhikharam (scriber of F.I.R. Exhibit-P/1) PW-4 - Deeparam PW-5 - Utmaram PW-6 - Tanaram PW-7 - Harisingh PW-8 - Ranulal. 20. As per the prosecution version, the accused respondents, armed with deadly weapons, assembled near the well for compromise, purposely for attending the marriage of Govindram’s son in the presence of PW-7 Harisingh and PW-8 Ranulal and, after the arrival of the complainant's party, attacked them with the lathi, axe and Barchis, resulting in injuries to Savantaram, who died later, and to Muknaram, Deeparam, Urjaram, Tanaram, Bhikharam, Mohanram & Utmaram. 21. The respondents deny the prosecution's story, allege suppressing the genesis, and have provided a specific defence concerning injuries sustained during the occurrence to Megharam, Bhomaram, Gangaram and Pemaram. 22. PW-7 Harisingh is the person in whose presence the entire occurrence occurred; he has deposed that the accused and complainant's party assembled near the well and were ready for the compromise. He also stated that the accused party left for their home after entering a settlement and did not see respondents causing the injuries with lathi and axe to Savantaram, Muknaram, Deeparam, Urjaram, Tanaram, Bhikharam, Mohanram & Utmaram. 23. Thus, PW-7 Harisingh denied the prosecution story and stated that the accused party left the place of occurrence and did not see respondents causing injuries with a lathi, axe and Barchi to Savantaram, Muknaram, Deeparam, Urjaram, Tanaram, Bhikharam, Mohanram & Utmaram. Instead, in his examination chief alleged Muknaram and Deeparam for having lathis and barchi. 24. After a lengthy cross-examination by the learned Public Prosecutor, PW-7 Harisingh repudiated the entire prosecution story. In his cross-examination by learned counsel for the accused respondents, the witness told a different story and stated that the complainant's party had arms in their hands and saw Meghram having injuries on his body. 25. The deposition of PW-7 Harisingh does not reveal the true story and avoids the actual genesis. However, he admits that in his presence, both parties agreed to participate in Govindram son's marriage. 25. The deposition of PW-7 Harisingh does not reveal the true story and avoids the actual genesis. However, he admits that in his presence, both parties agreed to participate in Govindram son's marriage. He also acknowledges the existence of both parties at the place of occurrence. However, he denies any injuries caused by the respondents to Savantaram, Muknaram, Deeparam, Urjaram, Tanaram, Bhikharam, Mohanram & Utmaram. Thus, his evidence partially supports the defence version that the complainant's party had arms with them, and he saw injuries to accused Megharam. Hence his statement is not helping the prosecution's version. 26. Similarly, PW-8 Ranulal has also not supported the prosecution story and denied any injuries caused by the respondents to Savantaram, Muknaram, Deeparam, Urjaram, Tanaram, Bhikharam, Mohanram & Utmaram. On cross-examination by the learned Public Prosecutor, he refuted the prosecution story. 27. Thus, both the above referred material eye witnesses have deposed nothing against the accused respondents. 28. Before appreciating and analyzing the evidence of other eyewitnesses, PW-1 Khiyanram, PW-2 Champaram, PW-3 Bhikharam, PW-4 Deeparam, PW-5 Utmaram and PW-6 Tanaram, it would be appropriate to mention the statements of PW-12 Dr Nar Singh Bittu and Investigating Officer PW-13 Sahiram. 29. PW-12 Dr Nar Singh Bittu, in his cross-examination, discloses that he also examined the injuries sustained by accused respondents Baburam, Megharam, Bhomaram, Gangaram and Panaram. Accordingly, he accepts the preparation of their injury reports as Exhibit D/17 and Exhibit D/21. 30. Upon perusal, it is evident from the injury reports Exhibits-D/17 to D/21 that accused Baburam suffered four injuries, accused Megharam suffered 11 injuries, accused Bhomaram suffered one injury, accused Gangaram suffered six injuries and accused Panaram complained of pain on his left shoulder. Thus, it is the admitted position that the accused respondents Baburam, Megharam, Bhomaram and Gangaram suffered injuries. 31. PW-13 Sahiram in his cross-examination, insofar as relevant on page four, has admitted that the accused respondents also suffered injuries on their bodies. The arrest memo mentions the same, and the concerned doctor also examined the accused respondents. He has also admitted that the injuries sustained by the accused, Megharam, are mentioned in Exhibit D/3. 32. PW-1 Khiyanram, in his examination-in-chief, has narrated that accused Laduram abused the deceased Savantaram, and afterwards, the altercation occurred. Savantaram was struck on his head by accused Megharam, and other accused also inflicted various injuries on Deeparam and Bhikharam. He has also admitted that the injuries sustained by the accused, Megharam, are mentioned in Exhibit D/3. 32. PW-1 Khiyanram, in his examination-in-chief, has narrated that accused Laduram abused the deceased Savantaram, and afterwards, the altercation occurred. Savantaram was struck on his head by accused Megharam, and other accused also inflicted various injuries on Deeparam and Bhikharam. In his cross- examination, insofar as relevant, he has denied any previous disputes between the accused party and the complainant's party. He has only stated that there was a dispute between the deceased Savantaram and Megharam. In his cross-examination, he denied the presence of eyewitnesses PW-7 Harisingh and PW-8 Ranulal. He has also denied that he gave the statement (Exhibit-D/1) stating the existence of Harisingh and Ranulal at the place of occurrence and denied any injuries caused to Megharam, Baburam, Gangaram and Panaram. It is also pertinent to mention here that Exhibit-P/1 says that when the complainant's party reached the well, accused Megharam, Bhomaram, Gangaram, Munaram, Baburam, Kojaram, Laduram, Manganram, Bhomaram, Himtaram and Pannaram were present with the arms in their hands and they attacked the complainant's party, however, in his court statement PW-1 Khiyanram expressed that the altercation occurred due to abuse by Laduram to the deceased Savantaram. In contrast, in the F.I.R., it has been stated that when the complainant's party reached the well, the accused Megharam, Bhomaram, Gangaram, Munaram, Baburam, Kojaram, Laduram, Manganram, Bhomaram, Himtaram and Pannaram were present with the arms in their hands. They suddenly attacked the complainant's party. 33. In such circumstances, the testimony of this witness is not reliable and the learned trial court has rightly disbelieved his testimony. 34. Similarly, PW-2 Champaram has also stated that the altercation took place due to abusing by Laduram to Savantaram, and this version is not consistent with the prosecution story. Moreover, PW-2 Champaram, PW-3 Bhikharam, PW-4 Deeparam, PW-5 Utmaram and PW-6 Tanaram belong to the same family, to which, Savantaram is related, therefore, their version is also unsafe to rely upon. 35. Similarly, PW-3 – Bhikharam, PW-4 -Deeparam, PW-5 – Utmaram and PW-6 – Tanaram also deny causing injuries to the accused respondents Baburam, Megharam, Bhomaram, Gangaram and Panaram, however, all the above witnesses support the prosecution's version about causing injury to the deceased Savantaram by accused Megharam by Lathi and by accused Baburam, Bhomaram to Muknaram, Deeparam, Urjaram, Tanaram, Bhikharam, Mohanram & Utmaram. 36. 36. It is a settled law that in a murder case, non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of the altercation is a significant circumstance from which the Court can draw the following inferences:- (1) The prosecution has suppressed the occurrence's genesis and origin and still needs to present the accurate version. (2) The witnesses, who have denied the presence of the injuries on the person of the accused, are lying on the most material point and, therefore, their evidence is unreliable. (3) That in case there is a defence version, which explains the injuries on the person of the accused, it is rendered probable to throw doubt on the prosecution case. 37. It is clear from the record that relations between the parties were not cordial. The injuries sustained by the accused respondents were not minor and cannot be brushed aside only because of their nature. Accused Megharam has suffered at least ten injuries on various body parts, and similarly, accused Bohmaram and Gangaram have suffered multiple injuries on their body parts. The denial of the eyewitnesses regarding the injuries caused to the accused respondents is suggestive that the witnesses are concealing the actual genesis, and it is unsafe to rely upon the testimonies of the so-called eyewitnesses. The evidence of the Eyewitnesses PW-1 Khiyaram, PW-Champaram, PW-3 Bhikharam, PW-4 Deeparam, PW-5 Uttamaram PW-6 Tanaram is unreliable and it does not encourage the belief of the Court as such to prove the guilt of the accused beyond a reasonable doubt. 38. It is true that the testimony of interested witnesses is not a sole criterion to disbelieve their versions, however, in this case, material eyewitnesses are concealing the factual aspects. 39. Further, if witnesses endeavour to disguise or obscure the facts and deviate from their versions, it's easier to infer the chances of implication and exaggeration of the story. 40. Saddling the defence to explain all facts is not the spirit of criminal jurisprudence; instead, it's the liability of the prosecution to put forth and elucidate the material elements concerning the advent and commission of the crime. It's not desired from the defence to fetch for every glaring fact and then carry it before the Court. 41. 40. Saddling the defence to explain all facts is not the spirit of criminal jurisprudence; instead, it's the liability of the prosecution to put forth and elucidate the material elements concerning the advent and commission of the crime. It's not desired from the defence to fetch for every glaring fact and then carry it before the Court. 41. From the version of material eyewitnesses, it is explicit that the conflict emerged due to the impulsive vitriol of Ladhram to Savantaram and, as such, the prosecution's story of forming unlawful assembly in furtherance of the common object to cause injuries to the injured is not digestible. Further, the unexplained injuries to the accused persons demonstrate that both parties were involved in the sudden fighting, hence prosecution's narration of forming the unlawful assembly by the accused-appellants seems to be an afterthought and orchestrated. Albeit the learned trial court did not scrutinize the case deeming the analogy of the free fight, even assuming that analogy the evidence brought forth does not transpire truthfulness and its unsafe to trust upon the inconsistent depositions of all the eyewitnesses, therefore, the learned trial court has rightly disbelieved the testimony of all the witnesses and acquitted the respondents for the offences under Sections 147, 148, 302 and 323/149 IPC. 42. In view of the above, we don’t find any merit in this criminal appeal preferred by the appellant-State and the same is, therefore, dismissed. 43. Record of the trial court be sent back immediately.