1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Hapu Ram & ors. vs. The State of Raj. D.B. Criminal Appeal No. 490/2004 against the judgment dated 30.4.2004 passed by the learned Addl. Sessions Judge ,Bali District Pali in Sessions Case 34/1991. Date of Judgment : 27th Sept 2010 PRESENT HON'BLE MR. PRAKASH TATIA,J. HON'BLE MR. KAILASH CHANDRA JOSHI,J. Mr. B.S. Rathore, Mr. J.S. Choudhary & Mr. Pradeep Choudhary for the appellants. Mr. K.R. Bishnoi, Public Prosecutor for the State. Mr. Pradeep Shah for the complainant. BY THE COURT: (Per Hon'ble Tatia,J.) This Appeal is against the judgment and order dated 30.4.2004 passed by the court of Addl. Sessions Judge Bali, District Pali whereby the appellants have been convicted for the offences and have been sentenced accordingly. (1) The accused appellants Hapu Ram, Manohar Singh, Sukh Ram, Shyam Lal, Prakash Kumar, Jagdish and Ram Swaroop all have been convicted under Section 148, IPC and sentenced to undergo two years' R.I. with fine of Rs.1000/- and in default of payment of fine, to under go one month's R.I. 2 (2) Accused Hapu Ram has been convicted under Section 302 whereas accused Manohar Singh, Sukh Ram, Shyam Lal, Prakash Kumar, Jagdish and Ram Swaroop have been conficted for the charge under Section 302/149, IPC and each has been sentenced to life imprisonment with a fine of Rs.5000/- for each and in default thereof, to undergo three months R.I. (3) The accused Hapu Ram, Manohar Singh, Sukh Ram, Shyam Lal, Prakash Kumar, Jagdish and Ram Swaroop have been convicted for offence under Section 325/149, IPC and have been sentenced to undergo three years' R.I. with fine of Rs.1000/- for each and in default thereof, to udnergo one months R.I. (4) Hapu Ram, Manohar Singh, Sukh Ram, Shyam Lal, Prakash Kumar, Jagdish and Ram Swaroop have been convicted for offence under Section 323/149, IPC and have been sentenced to undergo one year's imprisonment with a fine of Rs. 500/- each and in default thereof to under go 15 days' R.I. All the sentences to run concurrently. Being aggrieved against the judgment and order of conviction and sentence dated 30.4.2004, the appellants have preferred this appeal. 3 The facts of the case are that on 5.7.1991 at 9.30 p.m., Deepak s/0 Shanker Lal gave Parcha Bayan (Ex.P.12 report) to the SHO PW-25 Ghewar Chand in a private hospital of Dr. Mewara at Seoganj and the SHO obtained signature Deepak on said Parcha Bayan. As per the Parcha Bayan, the complainant Deepak (PW-5) stated that about 8.45 p.m. he with victim deceased Vijay Mewara were sitting out side liquor shop no.2 of Vijay Mewara and at that time, no body was there nearby to them and at that time one person of the age of 35 to 40 years in pent-shirt, who was having brown eyes and brown mustache, having one lathi in his hand came and with him, about 15-20 persons were also came with having lathis. They came from the side of Gandhi Chowk and said brown eyes and brown mustache person inflicted one lathi blow on the had of his brother Vijay Mewara and thereafter all other persons started beating said Vijay Mewara and the complainant Deepak by lathis by inflicting repeated blows. He further stated that he is not knowing any of the persons by name, however, he can identify those assailants by face. In Parcha Bayan (Ex.P.12), he further stated that an hour before the incident, said brown eyes and brown mustache person came to the shop and asked the complainant Deepak about his name which he told to him, upon which said brown eyes and brown mustache person told him that he already committed murder in the State of Punjab and then he came to Nagaur 4 and from Nagour he came here to join as guard in Mahaveer Cinema. In the Parcha Bayan itself, he stated that in this incident he suffered injuries on the head and hands and due to injuries suffered by Vijay Mewara, he died. On this Parcha Bayan, case under Sections 302, 147, 148, 149, 307 and 323 IPC was registered and formal FIR(Ex.P.52) was registered. During investigation, statements of the witnesses were recorded and post-mortem of the body of Vijay Mewara was got conducted and post-mortem report Ex.P.54 was obtained . The site report (Ex.P.6) was prepared. The sample soil and blood soil were also recovered from the place of incident and report Ex.P.7 was prepared. The report about the dead body of deceased Vijay Mewara was prepared which is Ex.P.9 which was prepared in the Mewara Hospital of Seoganj. Weapons of offences were recovered from the accused persons and their memos are Ex.P.15 to Ex.P.21. Injured complainant Deepak's medical report was obtained which is Ex.P.14. The victim Vijay Mewara's clothes were recovered and for that memo Ex.P.10 was prepared, whereas blood stained shirt of Deepak was taken for sending for FSL report vide Ex.P.13. The relevant x-ray reports are Ex.P. 50 and Ex.P.51. The photos were taken which have exhibited as Ex.P.56 to Ex.P.62. The arrest memos for the accused were produced and exhibited as Ex.P.64 to Ex.P.72. The information under Section 27 of the 5 Evidence Act and in furtherance thereof, the recoveries were effected and recorded articles were exhibited in the court. In total, the prosecution produced 91 documents, whereas the defence produced and got exhibited 11 documents including the statement of the prosecution witness Deepak recorded twice under Section 161, Cr.P.C. which were marked as Ex.D.1 and Ex.D.2. In defence, identification memos of accused Manohar Singh, Jagdish, Shyam Lal and Jaswant Singh were got exhibited as Ex.3.3 to Ex.P. 6 respectively and the statements of Vijay Sharma, Behari Lal , Ganga Singh and Dr. Om Prakash were also got exhibited as Ex.D.7 to Ex.D.10. During trial, the prosecution produced 35 witnesses. The statement of all the accused were recorded under Section 313, Cr.P.C. The accused stated they have been falsely implicated in the false case, however, they did not produce any defence witness. The trial court relied upon the statement of the alleged witness PW-5 Deepak, PW-6 Jaswant Singh and PW-8 Vijay Sharma and rejected the defence of the accused-appellants that the complainant Deepak had no knowledge of the incident nor he was present on the spot, the witness PW-6 and PW-6 Jaswant Singh and PW-8 Vijay Sharma were also not the eye-witnesses nor they were present on the spot, 6 the said PW-6 Jaswant Singh and PW-8 Vijay Sharma were planted subsequently. The trial court also rejected the defence contention that none of the witness identified any of the accused during investigation and none of the witness was knowing the assailants. The trial court held that in view of the statement of eye-witness PW-5 Deepak, PW-6 Jaswant Singh and PW-8 Vijay Sharma corroborated by the post-mortem report (Ex.P.54) and injury report of the complainant Deepak (Ex.P.14) and further corroborated by Deepak's X-ray report (Ex.P.50) substantially proved the guilt of accused persons and held that on5.7.1991 at about 8.30 p.m., they by forming unlawful assembly with intention to murder Vijay attacked and made attempt to kill Deepak and this is further corroborated by the recoveries affected from them for which the prosecution produced reports Ex.P.15 to Ex.P.21 which finds support from the FSL report Ex.P.91. The trial court, therefore, convicted the appellants as mentioned above and sentenced them accordingly. The learned counsel for the appellants Shri J.S. Choudhary and the learned counsel Shri B.S. Rathore vehemently submitted that the witness PW-5 Deepak, PW- 6 Jaswant Singh and PW-8 Vijay Sharma are not only unreliable witnesses but witness PW-5 Deepak has concocted the story and tried to improve the story 7 subsequently and planted two witnesses PW-6 jaswant Singh and PW-8 Vijay Sharma who were not present at the time of incident. The learned counsel for the appellants further vehemently submitted that from the evidence placed on record it is clear that till all the accused-appellants were arrested, i.e., by 1 p.m. on 6.7.1991, there was no material before the investigating agency/officer on the basis of which they could have apprehended and arrested the accused persons. Admittedly and as stated by the complainant PW-5 Deepak himself in his Parcha Bayan (Ex.P.12) and in his statement in court, he and his brother deceased Vijay Mewara were sitting alone out side Vijay Mewara's shop no.2. He admitted in his statement that an hour before the incident, accused Hapu Ram came to his shop and on his enquiry, Hapu Ram told him his name also. Therefore, there was no reason for the complainant for not disclosing the name of Hapu Ram in Parcha Bayan(Ex.P.12). The complainant PW-5 Deepak further stated that the alleged two eye-witnesses who are relatives of the complainant and deceased, both saw the incident and not only that they saw the incident but the witness PW-6 Jaswant Singh took the victim deceased Vijay Mewara on his motor cycle to the hospital at Seoganj and the complainant Deepak was also on the same motor cycle. Meaning thereby both the victims- complainant Deepak and Vijay Mewara and Jaswant Singh were on the same motor cycle immediately after the 8 incident and reached to the hospital. In these circumstances, non-mentioning of name of Jaswant Singh and Vijay Sharma in Parcha Bayan(Ex.P.12) falsifies the prosecution case that Jaswant Singh and Vijay Sharma were the eye-witnesses and were present on the spot. Statements of Jaswant Singh and Vijay Sharma were recorded by the police in the evening of 6.7.1991 and before that the investigating officer had no evidence on the basis of which he could have arrested the accused persons at 1 p.m. on 6.7.1991. Further more, in court when the accused-appellant Hapu Ram was brought before the complainant PW-5 Deepak, he(Deepak) admitted that Hapu Ram accused neither has brown mustache nor brown eyes. Therefore, if facts stated in Parcha Bayan are correct then the person who inflicted injuries upon the victim Vijay Mewara is some other person who may have brown eyes and brown mustache and necessarily not the accused Hapu Ram. The learned counsel for the appellants also submitted that the complainant, in his evidence in court, admitted in cross-examination that Government Hospital of Sumerpur, with all facilities, was just half kilometer from the place of incident where the victim could have been taken within less than five minutes' time. The complainant PW-5 Deepak further admitted that even one private Nursing Home was just near to the hospital where they could have reached 9 within less than five minutes but they did not go to to the Government Hospital or private hospital whre they could have reached within five minutes from the place of incident, the deceased was taken by the victim himself to a private Nursing Home of their own relative which according to the learned counsel for the appellants was situated in a different town Sheoganj about 6 k.m. away from the place of incident at Sumerpur. The witness PW-5 further specifically admitted that the Government Hospital had all required facilities and near that Government Hospital, the houses of all the relatives of the appellants are there. Therefore, it is clear that even at the cost of risk of life of the deceased, he was not taken to the nearest Government Hospital where they could have reached within less than five minutes and were went to a private Nursing Home which was far away. That admission of the witnesses clearly cast serious doubt about the occurrence incident as stated by the prosecution, as in such a serious event, no one could have taken risk of not getting the medical aid instantly from nearest Government or even nearest private hospital. Therefore, the entire story presented by the prosecution is highly improbable and unbelievable. The learned counsel for the appellants further submitted that though identification parade was got conducted but it is clear from the remand order (Ex.D.11) 10 that there is no mention in remand order that the accused were produced fully covered so that no one can see them. Not only this, even in identification parade conducted in jail, complainant Deepak identified Manohar Singh as Ganesh, Jagdish as Dhula Ram and could not identify Shyam lal and for principal accused Hapu Ram, no identification parade was conducted and any identification parade report of any other accused was put in the evidence before the witness PW-5 Deepak and, therefore, the complainant Deepak has not stated that he identified any of the accused in identification parade. No other evidence like of Magistrate before whom identification parade might have been conducted, has been produced by the prosecution. The learned counsel for the appellants further submitted that apart from several other serious contradictions and improvements in the statements of the witnesses and apart from the highly improbable concoction of story by the complainant and the witnesses and apart from the fact that they are related and interested witnesses, the investigating officer Ghewar Chand in his cross- examination, clearly admitted that in the night of 5.7.1991 at about 9 p.m., telephonic information received in the Police Station, Sumerpur that at shop no.2( the place where the incident alleged to have been occurred), some unknown persons attacked with lathis upon deceased Vijay and the 11 complainant Deepak and suffered injuries and that information was recorded in Roznamcha and the police was sent on spot and the investigating officer Ghewar Chand himself was in that police team with whom another police constable Man Singh was also with the said SHO. He admitted that when he reached on site, there was huge crowd and when he enquired from the persons present there, then they told him that one marriage procession came from Nagaur and the members of the marriage procession started quarrellings and those members of the marriage procession, after inflicting injuries, ran away in their bus. After getting this information, the investigating officer PW-25 Ghewar Chand himself sent the police party after the members of the marriage procession and the bus but they could not caught them. He also stated that as he remembers, information of this incident was given by wireless to the police station falling in the route Jodhpur- Nagaur. According to the learned counsel for the appellants, therefore, in fact there was some dispute with the marriage party which came from Nagaur and in the same incident, deceased and victim suffered injuries. The statement of PW- 25 Ghewar Chand clearly destroys the prosecution case. With the help of statement of the complainant PW-25 Deepak, the learned counsel for the appellants submitted that the witnesses clearly admitted that shop no.2 where 12 the incident alleged to have been occurred is situated on the National High-way and also is situated in a fully developed locality and near shop no.2, there are several shops in front of shop no.2 and there were some liquor shops near the shop in dispute and behind those shops also there is thickly populated area. He admitted that these shops remain open till 9 p.m. In view of the above reasons, it was incumbent upon the prosecution to investigate the matter from independent witnesses, who admittedly were present at the time of incident, because not only that place of incident was on highway but is situated within the thickly populated area and the complainant himself admitted that at the time of incident about 30 persons came there. In spite of availability of several independent witnesses, two witnesses have been picked up who were known to the complainant but their names were not disclosed by the complainant immediately nor their statements were recorded immediately after the incident in spite of the fact that one of the alleged eye-witnesses Jaswant Singh was made witness to the Panchnama of the body of the deceased which was prepared just after the incident and said Jaswant Singh, in his cross-examination, admitted that he is resident of Mahamandir area of Jodhpur which is far away from Sumerpur. The learned counsel for the appellants vehemently 13 disputed the credibility of the alleged recoveries and drew our attention to the reasons given by the learned trial court for rejecting the defence of the accused-appellants and submitted that the co-accused Dayal Singh and Bhanwar Singh, who have been charged for offences under Sections 120-B, 302 and 307/109 have been acquitted and submitted that the reasons given by the trial court are no reasons in the eye of law for rejecting the appellants' objection against the credibility of the witnesses as well as falsity in the case of the prosecution. The learned Public Prosecution assisted by learned counsel Shri Pradeep Shah on behalf of the complainant, supported the judgment of the trial court and the learned counsel Shri Shah submitted that the trial court has carefully considered the evidence and the evidence of the witnesses cannot be discarded only on the ground that they happen to be relatives of the deceased and particularly when one of the eye-witness has suffered several injuries which have been fully proved by the prosecution. The learned counsel for the complainant submitted that it is true that in Parcha Bayan (Ex.P.12), the name of witnesses Jaswant Singh and Vijay Sharma is not mention but that is of no consequence nor it can create any doubt on presence of said Jaswant Singh and Vijay Sharma on the spot as from cross-examination of these witnesses, the appellants could 14 not bring out any fact on record which may create doubt on the credibility of these witnesses. The learned counsel for the complainant also vehemently submitted that the defence version that in some other quarrel with marriage procession, this incident occurred and deceased and victim suffered injuries, is not corroborated by the medical evidence in the light of the timings of the injuries. We considered the submissions of the learned counsel for the parties and perused the record. We may recapitulate the facts in brief, that as per the statement of the complainant PW-5 Deepak himself, who alleged that he himself suffered injuries in the incident, the place of incident is surrounded by thickly populated area, residential as well as abadi area. The incident occurred when all other shops were open. Before the incident occurred, he was knowing the name of principal accused Hapu Ram as Hapu Ram came on the shop an hour before the incident and asked for his name as well as of his brother's Vijay Sharma name and in turn, complainant Deepak (PW-5) himself inquired for the name of accused Hapu Ram and Hapu Ram told him his name, yet in Parcha Bayan (Ex.P.12), the complainant did not disclose the name of the alleged principal assailant and gave his description only which one can in all probabilities can be given when 15 one was not knowing the name of such person. It is absolutely unnatural that a person knowing the name of the person will instead of disclosing of the name, will give description of the person in a case when such person has inflicted fatal injuries upon his own brother and also caused injuries to himself. Further, if we look into the Parcha Bayan(Ex.P.12) of the complainant Deepak, then in court when said Hapu Ram was brought before him then he admitted that Hapu Ram produced in court, neither has brown eyes nor brown mustache. Therefore, the person who inflicted injuries was not the accused Hapu Ram. Not only this, PW-5 Deepak, after finding that accused Hapu Ram has no brown eyes and mustache, yet he stated that at the time of incident, this person's eyes and mustache were brown. The colour of mustache was changed by appellant Hapu Ram, is not the case of the prosecution and even if is is so, colour of eyes cannot change. Above two facts clearly cast serious doubt upon the credibility of the evidence of PW-5 Deepak. Further more, there is no explanation for name shake even why the name of two well known persons who alleged to be present at the time of incident and one of which is Jaswant Singh, took victim and deceased to the hospital, was not disclosed by the complainant Deepak in Parcha Bayan and that is certainly an unusual conduct of the 16 witnesses and the peculiar fact is that said Jaswant Singh is, admittedly, relative of the complainant and deceased. The witness PW-5 Deepak in cross-examination, in cross- examination, stated that he with the help of Vijay Sharma he put victim Vijay Mewara on Jaswant Singh's motor cycle and Vijay Sharma, who appeared in the witness-box as PW- 8 stated that when he was passing through the liquor shop no.2, obviously of the deceased, then the deceased Vijay Mewara called him to bring cigarate and at that time, about 7-8 persons came with lathis and pipes, in a three-wheeler and immediately accused Hapu Ram inflicted injuries on the head of deceased Vijay Mewara. Rest of the persons encircled Vijay Mewara and Deepak and started beating and they were shouting that we should kill them. He even stated that Jagdish had knife in his hand. He stated that he with the help of injured Deepak put the victim Vijay Mewara on the motor cycle of Jaswant Singh. Therefore, Vijay Sharma was also well known person to the complainant, yet his name was not given in Parcha Bayan (Ex.P.12) by the complainant Deepak and there is no explanation for not giving his name in the Parcha Bayan. Apart from above, if we examine the statement of alleged witness PW-6 Jaswant Singh, then he is admittedly, the relative of both the victims and in cross-examination, he stated that he is resident of Jodhpur and not of the town 17 Sumerpur or Sheoganj. He stated that about a month ago only, he got the service in another liquor shop which is near to the shop in dispute. However, when he was asked to show his appointment letter or appointment slip, he stated that he did not bring that slip. He stated that he took the complainant and the deceased on his motor cycle but in cross-examination he stated that he do not remember number of the motor cycle though the motor cycle was registered in his own name and he admitted that the registration of that motor cycle was obtained from Jodhpur office of registration and he stated that then he sold this motor cycle. In cross-examination, he admitted that while taking deceased Vijay Mewara on his motor cycle, who was badly bleeding and his blood spread over his clothes but he did not gave his blood stained clothes to the police nor shown his hands with blood stains to the police. Then he stated that on next day, i.e., on 6.7.1991, his statement was recorded in the evening at 6-7 p.m. and till that time, i.e., for 24 hours, he did not tell anything about the incident to any body. That is also an unusual behaviour of the witness because of the reason that he is relative of the victim and deceased both. Admittedly, this witness was not knowing the accused-persons nor he was knowing that accused-persons were residents of which of the villages nor he was knowing the names of father of these accused- persons. In cross-examination, he gave details of the 18 incident but admitted that all those details of the events have not been mentioned in his statement recorded under Section 161, Cr.P.C.(Ex.D.6). The improvements in the statement in court are material on important point, therefore, his statement, without corroboration, cannot be believed and in this light also, absence of his name in the Parcha Bayan(Ex.P.12) cast serious doubt about his presence on the spot at the time of incident. Another witness PW-8 Vijay Sharma after giving statement in support of the prosecution, in cross- examination, stated that he was employee of Gajendra Diesels and owner of Gajendra Diesels is Gajandra Singh, elder brother of PW-5 Deepak and Gajendra Diesels is running in the house of PW-5 Deepak and Gajendra