DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Chetan Lal. vs. State of Rajasthan. D.B.CRIMINAL APPEAL NO.288/2005 UNDER SECTION 374 Cr.P.C. AGAINST THE JUDGMENT AND ORDER DATED 5.2.2005 PASSED BY SHRI AJAY KUMAR OJHA, ADDITIONAL SESSIONS JUDGE (FAST TRACK) NO.1, PALI HEADQUARTER JAITARAN IN SESSIONS CASE NO.98/2004. DATE OF JUDGMENT ::: September 4th, 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. C.M. TOTLA, J. Mr.DS Udawat, for the appellant. Mr.VR Mehta, Public Prosecutor. Mr.KS Rathore, for the complainant. - - - - - BY THE COURT (PER HON'BLE MR.PRAKASH TATIA, J.): REPORTABLE Heard learned counsel for the parties. This appeal is against the judgment and order of DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 2 conviction and sentence dated 5.2.2005 passed by the Court of learned Additional Sessions Judge (Fast Track) No.1, Pali Headquarter Jaitaran in Sessions case no.98/2004 whereby the appellant Chetan Lal has been convicted for offence under Section 302 read with Section 34 IPC and in alternative under Section 149 IPC and sentenced him to undergo life imprisonment and a fine of Rs.2,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. Hence, this appeal has been preferred by the sole convict appellant Chetan Lal. The entire case of the prosecution as set up is that complainant Bhanwar Lal, Ramsukh along with Madan Ram on 29.1.2001 at 2:30 AM gave parcha bayan Ex.P/1 at Police Station, Raipur (Camp) alleging that he along with his maternal uncle's grandson – Jagdish were going on a scooter and when they reached near Paladiya well, a truck Tata 407 came from behind and hit the scooter because of which, the complainant and victim Jagdish both fell down. Victim Jagdish immediately ran from the spot. From the said truck Tata 407, 4-5 persons dropped down and hit on the head of the complainant by lathi. The complainant stated that he saw two persons in Dhoti and faces of both were covered. From there, the complainant ran towards the Police Chowki, Bar and told DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 3 about the incident to the Munshi of the Police Station upon which, Munshi took the complainant to the hospital and obtained first aid for him. Thereafter, some police constables and complainant's brother Ramsukh and his cousin Madan came there and told him that victim Jagdish has been murdered and his dead body has been thrown in an Anicut near Navora Bera and the scooter is yet lying on the road. In the FIR, he stated that because of land of Bera Navora, there is dispute and because of that dispute, about 6 months ago, Bhika s/o Changa Ji was murdered and to take revenge, Shaitan, Sohan Lal, Ganpat, Anda, Manak etc. are having rivalry with them and Ganpat has truck Tata 407 of ash colour, therefore, the above persons by criminal conspiracy with common object tried to kill the complainant and killed victim Jagdish in the manner referred above. On the basis of said report Ex.P/1, a case under Sections 302, 147, 148, 149, 323 and 120B IPC was registered and investigation started. It will be worthwhile to mention here that before the said parcha bayan report dated 29.1.2001 (Ex.P/1), the S.H.O., Police Station Raipur in the night at 12:30 PM of 28.1.2001, received an information on telephone from Head Constable of Police Chowki, Bar that one Jabar Singh on telephone informed that near the boundary of Village Dholodher, two persons were going DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 4 on scooter and they were hit by one Tata 407 (small truck) of ash colour in which one Bhanwaru Mali suffered injuries. One Jagdish was with said Bhanwaru Mali but he is not found on the scene of accident. Said information was registered in Rojnamcha and the S.H.O, PW18 Duda Ram along with Head Constable Amar Singh, Sipahi Kana Ram, Raghunath Singh and driver Mahesh Kumar started in Government jeep for Bar. They reached their at 1:40 AM i.e. in the morning of 29.1.2001 and there, in the police chowki, they found Jabar Singh Head Constable who told that Bhanwaru suffered injury who has been sent to Hospital with Sipahi. Some Sipahies have been sent to find out other victim Jagdish. After getting this information, the S.H.O. Duda Ram leaving other police persons at Bar, came back to Raipur Police Station and thereafter, on 29.1.2001 at 2:30 AM, said Parcha Bayan Ex.1 dated 29.1.2001 was given to Duda Ram and that Parcha Bayan was recorded by SHO PW18 Duda Ram himself in his own handwriting. During investigation, site report Ex.P/2 and site map Ex.P/3 were prepared, foot mould was taken vide Ex.P/5, panchnama of body of deceased Ex.P/7 and site report where the body was found Ex.P/6 were prepared. The relevant blood stained and sample soils were taken. Accused Chetan, Sohan, Manak, Anda Ram and Ganpat were arrested and their arrest memos Ex.P/11 to Ex.P/15 were DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 5 duly prepared. The iron pipe, blood stain bolt and blood stained shirt were recovered and their memos were prepared. One iron knife was recovered and recovery memo Ex.P/30 and report about the place where the knife was recovered Ex.P/31 was prepared. The information given by the accused under Section 27 of the Evidence Act were recorded before effecting the recoveries. The articles were sent for chemical examination to the Forensic Science Laboratory from where the FSL reports were obtained. After completion of investigation, challan was filed against all above 5 accused and charges referred above were framed against the accused appellants which were denied by the accused appellants and they sought trial. At the trial, the prosecution examined in total 19 witnesses and exhibited as many as 108 documents and 31 articles. The accused were examined under Section 313 Cr.P.C. Appellant Chetan stated that Bhanwar Lal committed murder of uncle of co-accused Sohan, who was also father of another co-accused Manak, because of that and because of the dispute between him (Chetan) and family of Jagdish with respect to some land, the appellant has been falsely implicated. The appellant produced 6 witnesses in defence and accused Manak himself gave his statement on oath as DW7. From defence side, 16 documents were produced. DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 6 The trial court acquitted all accused except appellant Chetan and convicted appellant Chetan under Section 302 read with Section 34 and in alternative under Section 149 IPC and has sentenced him as aforesaid. In sum and substance, the arguments of learned counsel for the appellant are that complainant Bhanwar Lal is neither a trustworthy witness nor he has been found trustworthy even by the prosecution and he has been declared hostile. Therefore, the testimony of this important hostile witness is liable to be rejected. Complainant Bhanwar Lal was not present at the time of any of the incident either accident of scooter by the truck or at the time when deceased Jagdish left the place of accident. Since he was not present at any point of time, therefore, he introduced two witnesses Madan Lal PW3 and Ramswaroop @ Ramsukh PW4. These two witnesses never met with complainant Bhanwar Lal before Bhanwar Lal reached to the police station. These two witnesses may have reached to the police station only because they came to know that the scooter of victim Jagdish was lying on road and he was found dead. These two witnesses PW3 Madan Lal and PW4 Ramsukh also did not disclose in Parcha Bayan Ex.P/1 that how they came to know about the position of the scooter and murder of DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 7 Jagdish inspite of the fact that they signed Parcha Bayan Ex.P/1. These two witnesses have been planted as the witnesses as to whom story was told by the complainant Bhanwar Lal just after the accident and to make their evidence admissible in evidence as narration of incident by the witness to others immediately after the incident. The prosecution for the reasons best known to them took one mould of one foot from the spot where according to the prosecution, six (6) persons were there and they moved freely here and there on loose soil. The investigating agency obtained the foot mould of only appellant out of five (5) accused as though the investigating agency had full knowledge that foot impression found on the spot was of one person and that was of appellant only and, therefore, the investigating officers did not took the foot moulds of other accused. Such evidence of foot moulds is liable to be rejected as it is a created evidence. The prosecution tried to involve five (5) persons out of which four (4) have been acquitted yet the trial court illegally convicted the appellant for the offence under Section 302 read with Section 34 and in alternative under Section 149 IPC and, therefore, the conviction of the appellant is contrary to the law laid down by the Hon'ble Apex Court in the case of Krishna Govind Patel vs. State of Maharastra reported in AIR 1963 SC 1412. DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 8 Learned counsel for the appellant also submitted that the recovery of knife was from an open place i.e. agricultural field and the alleged blood found outside the room of the appellant and near the well etc. are not sufficient evidence to connect the appellant with that blood because other accused were also living in the same building where the appellant was residing at the relevant time and other accused have been acquitted by the trial court. There is no explanation why the other accused cannot be connected with this evidence which in fact is neither evidence nor circumstance to connect anybody. The trial court also committed grave error of fact and law while considering the evidence of Shawl and Muffler recovered from the place where the scooter was hit by the truck as per the prosecution case and without coming to the conclusion whose Shawl and Muffler was, declared that circumstance against the appellant. The trial court easily discarded the evidence of PW15 Sher Singh who proved that the alleged blood on the clothes of the appellant may be even of animal. It is also submitted that the complainant himself not support the prosecution case and the prosecution planted witnesses and created false evidence and according to the prosecution itself, there was serious enmity between the accused party and the complainants, DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 9 then that enmity itself was ground for falsely implicating the appellant in the crime. Learned Public Prosecutor as well as learned counsel for the complainant vehemently submitted that in fact, one of the member of the accused party was killed and a criminal case was pending wherein the accused were released on bail on 23.1.2001 and the present incident occurred in the night of 28.1.2001. All the 5 accused well planned to kill the victim Jagdish and by hatching criminal conspiracy with common object and common intention carefully planned to kill the victim by hitting the victim by truck so as to convert murder in accident case. The victim did not die, then they all chased the victim. They took their truck away from the road towards the running victim Jagdish. The tyre marks were found on the spot which is proved by the prosecution by photographs and by truck tyre mould comparison by expert evidence. When accused could not kill by running the truck over the victim Jagdish, the victim Jagdish was killed by inflicting several injuries by knife and the appellant was the person who inflicted the injuries by knife. This fact is corroborated by the recovery of knife from the appellant which had blood stains over it. The appellant's clothes also had blood stains over them DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 10 which were recovered at the instance of the appellant himself. The appellant could not furnish any explanation about the blood over his clothes nor could explain how he came to know about knife if he himself had not thrown the knife in the agricultural field which had a big boundary wall and any man could not have seen the field or knife from outside. It is also submitted that in the site map Ex.P/3, every minute details have been shown and a large number of articles were seized from the spot which clearly proves the fact that the scooter was hit by the truck and the truck was taken away from the main road after the deceased towards the open field. The blood was found at several places. Since there were only one clear impression of foot, therefore, only one foot mould was taken and that foot mould resembled with the sample foot mould of the appellant and expert has given report that the foot impression found on the scene of incident was of appellant and not of any other person. According to learned counsel for the complainant, when there is strong motive for committing the offence, then the improvements made by the witnesses in their statements can be ignored and truth can be separated and the testimony of the witnesses as a whole cannot be rejected. It is further submitted that the accused appellant himself pointed out towards the knife which DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 11 was in the agricultural field having the crop of wheat and that knife had blood stains over it. The recovery of knife at the instance of the appellant is also an important circumstance against the appellant coupled with his enmity and having motive for committing the offence of killing the victim. Further, the appellant himself identified and pointed towards and showed the blood spots to the investigation officer. According to learned counsel for the complainant, on the rim of Stepiny of the scooter, the colour of truck was found and this circumstance clearly shows that the victim was hit from behind by the truck seized in this case. The Muffler and Shawl were found on spot with blood and the blood of the same blood group was found on the Pant and Shirt of the appellant. Learned counsel for the appellant even went to the extent that the complainant Bhanwar Lal in his report Ex.P/1 for the reasons best known to him did not clearly mention that he identified the persons on the spot but even then there are sufficient material facts narrated by the complainant to witnesses Madan and his brother Ramsukh, then to the police in his report and that is done without any delay, then that evidence is admissible in evidence. It is further submitted that vehicle truck Tata 407 by which the offence was committee, an application DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 12 was submitted by accused Ganpat's father namely, Bhanwar s/o Chogaji (PW19) and he got the truck released. He produced the registration certificate of the truck. He admitted that accused Ganpat was knowing driving of the truck and he admitted that this very truck was seized in the present case. Therefore, the truck was belonging to the family of the accused party and had evidence of hitting scooter by this truck, and this fact is also sufficient circumstantial evidence against the appellant. We considered the submissions of learned counsel for the appellant and learned public prosecutor as well as learned counsel for the complainant and perused the record and the reasons given by the trial court in the impugned judgment. At the outset, we may observe that the prosecution witnesses including the complainant materially changed the prosecution's original case. Same was the view of the trial court. The complainant also was declared hostile by the trial court at the request of special public prosecutor. It is clear from the facts mentioned above that on the written complaint Ex.P/1 dated 29.1.2001, the case for offences under Sections 302, 147,m 148, 149, 323 DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 13 and 120B IPC was registered and investigation started after recording FIR. The allegations of the complainant Bhanwar Lal in the report were only to the effect that the complainant and his cousin brother Jagdish were going on a scooter and when they reached near Palada well, a truck Tata 407 came from behind and hit the scooter because of which, the complainant and victim Jagdish both both fell down. Victim Jagdish ran from the spot. From the said truck Tata 407, 4-5 persons dropped down and hit the complainant by lathi on head. All the persons who dropped down from truck were wearing Dhoti and Shirts and their faces were covered. Therefore, the complainant had no knowledge that who were the persons who dropped down from the truck. He could note the model of the truck but could not note the number of truck. The complainant was knowing the accused persons and if he would have identified the persons who dropped down from the truck, he would have mentioned this fact in the report Ex.P/1 itself. He came to know about the death of victim Jagdish only from Ramsukh and his nephew Madan who came to the police station and told him that Jagdish has been murdered and his body has been thrown in an Anicut near Navora Bera and the scooter was lying on the road. In the report, it is clearly mentioned that “seeing above (body of deceased, and scooter lying on the road), they DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 14 (PW3 Madan and PW4 Ramsukh) came to the police station”. In Ex.P/1, it has not been mentioned that Ramsukh and Madan met with the complainant after the incident and before the complainant reached to the police station. From the report Ex.P/1, at the most, it appears that Ramsukh and Madan got the knowledge of incident and death of Jagdish and they came to the police station and found the complainant there. How they came to know about the accident of scooter of Jagdish and his murder is not mentioned in the Parcha Bayan Ex.P/1. The improvements made by the complainant in the statement in Court are material and may be to implant witnesses Madan and Ramsukh as witnesses to strengthen his story with the help of statement of these two witnesses. In view of the enmity between the victim party and the accused, the evidence of the witnesses is required to be considered very cautiously. The complainant who did not name the accused in Ex.P/1, in Court stated that he saw accused Sohan, Chetan, Manak and Anda Ram coming out from the truck and further stated that Ganpat was driving the truck and also stated from which side which accused came down from the truck, which are material improvements which cast doubt on the credibility of the witness PW1. He also narrated more facts relating to the incident and how it occurred which also contradicts fact mentioned DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 15 in Ex.P/1. PW3 Madan and PW4 Ramsukh are the witnesses whose names are mentioned in Ex.P/1 itself and they signed Ex.P/1 but from Ex.P/1 itself, it is clear that complainant Bhanwar Lal reached to the police chowki directly from the place of incident without meeting witnesses Ramsukh and Madan, and Ramsukh and Madan came there only when they saw the body of Jagdish lying near the Navora Bera near Anicut and his scooter was found lying on the road. However, the complainant in his statement in Court contradicting the fact stated in Ex.P/1 stated that from the scene of occurrence, he went to the shop of his nephew Madan which was at bus stand and Madan went and called Ramsukh and Ramsukh in turn came to the shop of Madan and they both took the complainant to the police chowki. This improvement, as held above, is for introducing PW3 Madan and PW4 Ramsukh as witnesses. Be it as it may be, Madan and Ramsukh are not the witnesses to the alleged accident of the truck with scooter or are witness to the killing of victim Jagdish. It may be true that a fact told by the witness immediately after the incident to another may be relevant fact and may be admissible in evidence but in this case from the evidence of PW1 Bhanwar Lal, PW3 Madan and PW4 Ramsukh, we do not find any reason to accept the statement of PW1 Bhanwar Lal that he went DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 16 from the place of incident to the shop of Madan and told the incident to Madan and his brother Ramsukh in the manner stated above. Further reason for not believing the statement of PW1 Bhanwar Lal is that the complainant Bhanwar Lal immediately after saying that all the four persons were wearing Dhoti and Shirt and had covered faces, named the accused in the same report Ex.P/1 and if the complainant had reason to know and identify the accused on the spot itself, then he would have mentioned the fact in the FIR from his personal knowledge whereas in the FIR, he has shown his doubt about involvement of the accused persons because according to him, the accused persons had enmity with deceased Jagdish as well as complainant. In Ex.P/1, complaint lodged by Bhanwar Lal and signed by Madan and Ramsukh also, only it has been disclosed that the complainant was told by Ramsukh and Madan that victim Jagdish has been murdered and his dead body has been thrown in an Anicut near Navora Bera. Therefore, from reading of report Ex.P/1, it is clear that till that report was lodged, the complainant Bhanwar Lal was not sure who were in the truck nor he told these two witnesses that the appellant and other accused came in truck and hit the scooter and thereafter, ran after Jagdish (deceased). Witnesses PW3 Madan and PW4 Ramsukh changed the DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 17 prosecution story in the same line in which complainant PW1 Bhanwar Lal changed. PW3 Madan stated that in the night of 28.1.2001 (winter season) at 11:30 PM, he was sitting on his shop and his uncle Bhanwar Lal came injured on his shop. He had injuries on head, back, knee and elbow. He asked the complainant how he was injured, then the complainant told that after taking meals, he and Jagdish went to the Bar Bus Stand for taking beetle and thereafter started on a scooter for going to Navora Bera via Jaitaran Road. Near Palaydiyon Ka Bera, they were hit by truck Tata 407 which was of ash colour. Complainant Bhanwar Lal saw the truck coming towards them and told Jagdish to go down from the road. Even when they took their scooter on the side of the road, the truck hit them and both fell down. PW3 Madan further stated that the complainant told him how these all accused to whom he identified drop from the truck, then he telephoned PW4 Ramsukh and called him on his shop and Ramsukh is brother of complainant Bhanwar Lal. Complainant Bhanwar Lal again told the entire story to his brother Ramsukh and they took complainant to the police chowki. According to PW3, thereafter, he along with complainant and Ramsukh and Munshi of the police station went to the house of Dr.Suresh Yadav and got treatment for complainant. Thereafter, he with Ramsukh and Munshi took car from the bus stand and DB Criminal Appeal No.288/2005 (Chetan Lal. vs. State) 18 started for searching Jagdish and found dead body of Jagdish with full of blood and at the residence of Dr.Suresh Yadav, they told the complainant that Jagdish had died. He stated that the S.H.O. Duda Ram came to the house of Dr.Suresh Yadav and enquired about