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2024 DIGILAW 820 (RAJ)

Nathu @ Nathia S/o Ramu v. State of Rajasthan

2024-05-22

DINESH MEHTA, RAJENDRA PRAKASH SONI

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JUDGMENT : Mehta, J. 1. The present criminal appeal under section 374(2) of Code of Criminal Procedure has been filed challenging the judgment dated 22.01.1997, whereby the learned Sessions Judge, Merta City in Sessions Case No.10/95 has convicted and sentenced the appellant as under:- Offences Sentence Fine Under Section 302 of IPC Imprisonment for life Rs.500/- in default of payment of fine further to undergo 3 months R.I. 2. Mr. Kumbhat, learned counsel for the appellant firstly read the FIR that was registered pursuant to written report lodged by Babuda (PW-11) and apprised the Court about the case projected by the prosecution. Having read the FIR, learned counsel submitted that the appellant has been convicted essentially on the basis of testimony of Babuda (PW-11) and the fact that an axe was recovered from possession of appellant. 3. Inviting Court’s attention towards FSL report, learned counsel underscored that though human blood was found on the axe but said report remained inconclusive so far as blood group is concerned. According to him, human blood of any person can be applied on the axe at any time. 4. Learned counsel submitted that Babuda (PW-11) was not present on the spot or at the time of occurrence of the alleged offence as is evident from his deposition more particularly the part ^^eS ogka ij vk;k ftlls igys ukFkks dks idM+ pqds FksA (People had caught Natho before I could reach the scene of occurrence). 5. Learned counsel argued that all the eye witnesses including the injured eye-witness, Baksharam (PW-2) had turned hostile and completely denied the prosecution story. Hence, it is clear that the appellant’s conviction is based on improper appreciation of evidence of a person, who deposed altogether different from the deposition of all other persons available in the ‘Dera’. 6. It was also argued by Mr. Kumbhat that the FIR in question came to be registered after a delay of two days and if that the overall facts and circumstances of the case and testimony of all witnesses are considered, it would be clear that the story which the prosecution had portrayed, has totally failed, which does not inspire confidence. 7. Kumbhat that the FIR in question came to be registered after a delay of two days and if that the overall facts and circumstances of the case and testimony of all witnesses are considered, it would be clear that the story which the prosecution had portrayed, has totally failed, which does not inspire confidence. 7. He alternatively argued that even if the prosecution story is believed to be true, no motive of the appellant was proved to murder the deceased (Ghirkiya) and also that the axe blow was inflicted on spur of moment, as the incident arose suddenly from a trivial dispute, hence his conviction under Section 302 of IPC cannot be maintained. 8. Learned Public Prosecutor vehemently argued that the appellant had committed murder in broad daylight and in front of so many people and eyewitnesses and other prosecution witnesses have aptly proved his guilt. He added that the testimony of eyewitness Babuda (PW-11) cannot be ignored, who has completely supported the prosecution story. 9. Learned Public Prosecutor submitted that Babuda (PW-11) was also an eye-witness and, therefore, if the prosecution story is supported by even one witness, it is enough and in case of an eye-witness, the prosecution is not required to establish motive. 10. Heard learned counsel for the parties and perused the record. 11. Before adverting to the contention of rival parties, it would be appropriate to perceive the facts of the case projected by the prosecution in mind. According to the prosecution, a written report came to be lodged by complainant Babuda (PW-11), after 2 days of the death of deceased Ghirkiya that he has been murdered in broad daylight in ‘Dera’ at around 2-2:30 p.m.. According to the written report, a mutual scuffle between Baksharam (PW-2) and deceased Girkiya, took place for the custody of their mother’s box, during which Nathu (present appellant), interjected and inflicted one axe blow on the head of the deceased and the other blow hit Baksaram on his arm. 12. The weapon of offence, the axe was recovered in furtherance of disclosure statement dated 23.04.1995 given by the appellant under section 27 of the Indian Evidence Act (Ex.P/8). The recovery was made in presence of two witnesses, namely Babuda (PW-11) and Pancharam (PW-4). Said axe was sent to Forensic Laboratory, which reported (Ex.P/26) presence of human blood on the axe. 13. The recovery was made in presence of two witnesses, namely Babuda (PW-11) and Pancharam (PW-4). Said axe was sent to Forensic Laboratory, which reported (Ex.P/26) presence of human blood on the axe. 13. On completion of investigation, a charge-sheet came to be filed whereafter charges for offence punishable under section 302 (for murdering Ghirkiya) and section 326 (for inflicting injury to Baksharam) were framed. The appellant denied all the charges and claimed for trial. 14. To prove the case, the prosecution brought a number of persons in the witness box namely, Baldevram (PW-1); Baksharam (PW-2); Hemaram (PW-3); Pancharam (PW-4); Ganpatram (PW-6); Maadhu (PW-10) and Babuda (PW-11), projecting them as present at the scene or eye-witnesses. It is intriguing that out of them, all the witnesses except Babuda (PW-11) had turned hostile. They had not only turned hostile but also came with an entirely different story that the deceased died because of the injuries sustained as a result of falling from a camel (locally known as ‘Sand’). 15. Dr. Mangilal Meena (PW-13) and Dr. R. K. Mathur (PW-14) appeared to testify the injuries and post-mortem respectively, while Ganesharam (PW-7), Ratnaram, Constable (PW-8) being police personnel came as witness in support of the investigation. Various reports and articles were exhibited, including the alleged weapon of offence. 16. Having heard rival counsel and waded through the record, we weighed the evidence in light of the arguments advanced only to find that it was only the informant – Babuda (PW-11), who supported the prosecution story. And even his testimony (PW-11) creates a doubt about his presence on the spot or near the place of occurrence - because of use of expression “when I came there, the people had already caught hold of the appellant - Nathu @ Nathia.” 17. But if such expression is read with the entire deposition, then his presence near the sight looks plausible, because of his opening statement that he was present in the ‘Dera’. But then, the crucial question which comes for consideration is that “he had seen the incident himself or he was present in or around the ‘Dera’.” 18. But if such expression is read with the entire deposition, then his presence near the sight looks plausible, because of his opening statement that he was present in the ‘Dera’. But then, the crucial question which comes for consideration is that “he had seen the incident himself or he was present in or around the ‘Dera’.” 18. According to us, when the prosecution has set up a story in which, 8-10 persons were present at the place of occurrence and saw Baksaram and deceased grappled with each other so also when the appellant gave the deadly blow of the axe and all of them when brought to the witness box, have turned hostile, then, an accused cannot be convicted solely on the testimony of one of them, particularly when others have come up with a completely different story – the evidence calls for careful scrutiny. 19. It is to be seen that most of the witnesses who were portrayed as eye-witnesses have not only turned hostile, they testified that the deceased (Ghirkiya) died of injuries he sustained due to falling off the camel. Though these witnesses had been declared hostile but even during their cross-examination, they stuck firm on their stand. 20. So far as recovery of the axe is concerned, we find that the recovery memo (Ex.P/8) shows Pancharam (PW-4) and Babuda (PW-11) to be the witnesses of the recovery; but their testimony does not properly prove the recovery. Pancharam (PW-4) though has been declared hostile, but his cross-examination in this regard is more interesting, in which, he clearly stated that he had not seen the accused handing over the axe to the police and even denied the suggestion that Police had read over the contents to him, before getting his thumb impression. Babuda (PW-11) also did not aver anything about the recovery of the axe and during cross-examination, not even a single question was asked to him by the Public Prosecutor. 21. As already noticed, the FSL report (Ex.P/26) has remained inconclusive about the blood group and the same only reports presence of human blood on the axe. Mere presence of human blood on the axe does not establish that the axe was used to attack the deceased only. 22. 21. As already noticed, the FSL report (Ex.P/26) has remained inconclusive about the blood group and the same only reports presence of human blood on the axe. Mere presence of human blood on the axe does not establish that the axe was used to attack the deceased only. 22. On appraisal of entire material and analysis of evidence on record, we find that the prosecution which had come up with a case that the appellant-accused hit the deceased on forehead with axe, while the deceased and Baksharam were entangled and Baksharam got injured with the another blow of axe, which the appellant gave in presence of many people, has utterly failed to bring the charge against the appellant-accused home. 23. The injured person Baksharam (PW-2), who was none other than the real brother of the deceased had offered a completely different story in the witness box and except the other brother of the deceased i.e. Babuda (PW-11) almost all the witnesses (PW-2, PW-3 and PW-4) echoed the story as narrated by Baksharam (PW-2) that the deceased fell from the camel. 24. Such being the position, we are of the view that it will be too perilous and injudicious to believe one witness (to be an eye-witness) and ignore the testimony of all other witnesses, who too were present on the very spot, as per the complainant (PW-11) himself and believed by the prosecution. 25. It is pertinent to note that in his explanatory statement given under section 313 of the Code of Criminal Procedure, the appellant had asserted that the deceased died due to fall from camel and made a reference of the application dated 06.06.1995 (Ex.D/2) in which he had written to the Court that despite request, the Investigating Officer had not taken the correct facts on record and did not examine the saddle of the camel and stains of the blood present on its blades, which blades got blood stains due to profuse bleeding from the injury, which the deceased suffered while/after falling from the camel. Though the application dated 06.06.1995 was tendered in evidence (Ex.D/2) by the accused, but the trial court did not dilate upon the same. 26. Though the application dated 06.06.1995 was tendered in evidence (Ex.D/2) by the accused, but the trial court did not dilate upon the same. 26. It is to be noted that said application was submitted before the learned Additional Chief Judicial Magistrate even before the charge-sheet was filed (06.06.1995) and the story given or the reason of the death of the deceased given by the accused has been reiterated by at least three witnesses, who had been brought by none other than the prosecution itself, as eye-witnesses to support its cause. 27. The trial Court discarded the defense of the accused and the assertions made by Baksharam (PW-2); Hemaram (PW-3) and Pancharam (PW-4), simply because the defense counsel had not asked the Medical Jurist (PW-13) a question as to whether such injuries could be caused, if the deceased fell from a camel. While finding fault with the prudence of defense counsel, the trial court completely over looked the fact that said Medical Jurist - Dr. R.K. Mathur (PW-14) had not even deposed about the probable cause of the injury, namely, infliction by sharp weapon. 28. In our view, when the Medical Jurist himself did not suggest the injury to have been caused by axe or other sharp edged weapon, it was not required of the defense counsel to give a suggestion that whether such injury could be caused, if some one fell from the camel. That apart, the offence cannot be held proved, simply because of the purported lapse on the part of defense counsel. 29. It is to be borne in mind that built of the saddle of camel is different than saddle of other animals such as horse & elephant etc. Because of the hump of the camel, special type of saddle is prepared which is made of iron strips and rod. And the possibility of getting injured while falling from the camel cannot be completely denied. 30. As per the testimony of the star witness Babuda (PW-11) - after the incident, Ghirkiya - the deceased was firstly taken to nearby village (Bagad), where they did not find doctor and thus, contacted Vaidya (Ayurvedic Doctor) and then the injured was brought back to ‘dera’ (home) and it was only on the next day, he was taken to Ajmer Hospital and until such time deceased was alive and he died the next day in the hospital at Ajmer. 31. 31. According to PW-11, the police came to him the next day; which means two days after the incident (on 17.04.1995 at 5:45 P.M.). The fact that the incident was not reported to the police for more than 48 hours by anyone out of so many persons raises a doubt; particularly when the alleged offence of murder was committed in broad day light in presence of many persons. The delay of more than 48 hours in a serious case like this, cannot be taken lightly and the same gives rise to suspicion, more particularly in the face of the hypothesis suggested by the accused appellant duly corroborated by the eye-witnesses (PW-2, PW-3 and PW-4). 32. We are of the view that when many persons who were present have been produced as eyewitnesses and have not corroborated the testimony of the complainant (PW-11), it will not be safe to accept the hypothesis suggested by the prosecution and discard or reject the one that was placed for consideration by the defense and got support from the prosecution witnesses. 33. The trial court has convicted the appellant on the basis of testimony of Babuda (PW-11), whose version is not supported by any other witness. The other incriminating evidence was the recovery of the axe, which has not been properly proved by the independent witness. Hence, it will not be safe to maintain the conviction of the appellant on the basis of uncorroborated testimony of the eye-witness Babuda (PW-11). 34. All the prosecution witnesses (except the complainant) present at the site having turned hostile; the case can no longer be decided on the basis of direct evidence. This leaves the court to ponder, whether guilt can be attributed and proved on the basis of residuary evidence, that is, circumstantial evidence. 35. It is to be noted that saddle of camel is predominantly made of Iron. The possibility that if a person falls from the camel and gets injured cannot be completely overruled. Though in case of eye-witness, motive becomes irrelevant but without there being any previous animosity, why would the appellant interject and hit the deceased Nathu with axe on the head when his brother in law (Baksaram) was entangled with the deceased, is beyond anybodies comprehension. 36. Though in case of eye-witness, motive becomes irrelevant but without there being any previous animosity, why would the appellant interject and hit the deceased Nathu with axe on the head when his brother in law (Baksaram) was entangled with the deceased, is beyond anybodies comprehension. 36. While appreciating the evidence & material, the Court has to bear in mind social & financial background of the appellant and the deceased who hail from Bagariya (Banjara) community. All the persons involved including the witnesses were illiterate and all of them when came in the Court have completely negated the story of the prosecution. Even while preparing panchnama (Ex.P/4) on 17.04.1995, the police in presence of motbirs had recorded that the deceased died of severe injury on the forehead. The panchas being Panchoram & Baldevram who according to the police were eyewitnesses, till such time did not disclose that he was killed / hit by the appellant with an axe. 37. In the present case the prosecution has failed to prove beyond reasonable doubt the commission of offence by the appellant – There are a number of lacunae - (i) the prosecution has failed to prove that the complainant was an eye-witness yet the trial court has believed his statements as a gospel truth; (ii) the prosecution has failed to complete the chain of links, as report of blood group remained inconclusive; (iii) though the recovery is, otherwise, a weak piece of evidence, the trial court has mechanically relied upon recovery memo though it was not properly proved; (iv) The trial court has not taken into account the effect of failure to investigate pursuant to letter dated 06.06.1995 (Ex.D/2); (v) The statement of PW-11 were not corroborated by any other witness. 38. As a result of the discussion foregoing, we unhesitantly hold that the prosecution has failed to prove the case against the present appellant beyond all reasonable doubts and establish that on the basis of material on record only one conclusion could be drawn, that the deceased died because of the axe blow given by the appellant or in other words, it cannot be said with certitude that it was the appellant and appellant alone, who was the culprit behind the death of the deceased. 39. 39. The appeal filed by the appellant Nathu @ Nathia is, thus, allowed; his conviction and sentence for the offence under Section 302 of IPC in Sessions Case No.10/1995: State V/s Nathu per-viam judgment and order dated 22.01.1997 is quashed and set aside and he is acquitted of all the charges. As, the appellant is on bail, the bail bonds furnished by him stands discharged. 40. However, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant - Nathu @ Nathia is directed to furnish a personal bond in the sum of Rs. 50,000/- and a surety bond in the like amount, before the trial court by 30th June 2024. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.