1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT 1. Raju alias Rajkumar Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.1124/2003 2. Sonu alias Sohan Lal Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.1148/2003 3. State of Rajasthan Vs. Raju alias Rajkumar & Ors. D.B.CRIMINAL APPEAL NO.82/2005 4. Jaynarayan Vs. State of Rajasthan & Ors. D.B.CR. REVISION PETITION NO.74/2004 Date of Judgment : 4th February 2009 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr.HSS Kharlia ] Mr.SS Dhillon ] for accused-appellant Raju @ Rajkumar Mr.M.K.Garg, ] Mr.Niranjan Singh ] for accused-appellant Sonu @ Sohan Lal Mr.JPS Choudhary, PP for State. Mr.R.K.Soni for Mr. IR Choudhary for complainant Jaynarayan BY THE COURT (PER HON'BLE CHAUDHARI,J.) REPORTABLE These appeals and revision petition have been filed against the judgment dated 12.9.2003 passed by Addl. 2 District Judge (Fast Track), Sriganganagar, by which he convicted accused Raju alias Raj Kumar s/o Mohan Lal under sections 449, 302 IPC and section 3/25, 27(2), Arms Act, and accused Sonu alias Sohan Lal s/o Sita Ram under sections 449, 302/114 IPC and sentenced each accused under section 449 IPC to undergo rigorous imprisonment for ten years and fine of Rs. 500/-, in default of payment of fine to further undergo six months' simple imprisonment and under sections 302, 302/114, sentenced to life imprisonment and fine of Rs.1000/-, in default of payment of fine to further undergo one year's simple imprisonment, and accused Raju was further sentenced under section 3/25, Arms Act to undergo three years' rigorous imprisonment and fine of Rs.300/- and in default of payment of fine to further undergo three months' simple imprisonment and under section 27(2), Arms Act, to undergo seven years' rigorous imprisonment and fine of Rs.300/-, in default of payment of fine to further undergo three months' simple imprisonment, however, acquitted accused Raju alias Lala alias Lalit s/o Brijlal, Sandeep s/o Shrawan Kumar and Ravi Kumar s/o Ram Gopal from the offences under sections 302/114, 302/109 and 120-B IPC. All these appeals and revision arise out of common judgment, hence, they are being decided by this common judgment. Brief facts of the prosecution case are that injured Anil gave dying declaration Ex.P/35 on 23.12.2001 at 6.40 p.m. to SHO PW.17 Arvind Kumar at Government Hospital, Gajsinghpur and alleged that on 23.12.2001 at 6.00 p.m., 3 accused Raju and Sonu came at Jat Hostel and told him that he (Anil) has threatened Ravi to not to go in a particular street, on which he told that he had not threatened Ravi, then both of them told that let us compromise and thereafter, accused Raju fired on him by country made pistol, which hit on his right side of neck. At that time, Rakesh, Satbir, Nemichand, Praveen and Daulat Ram were there and out of them, Satbir, Nemichand and Rakesh took him to hospital. On this dying declaration (Parcha Bayan), a case was registered under sections 452, 307, 336 read with section 34 IPC and as on the very day, injured Anil Kumar died at 9.30 p.m., offence under section 302 IPC was added and after completion of investigation, challan was filed against all the five accused persons under the aforesaid offences in the Court of Judicial Magistrate, Padampur. The case was committed to the Court of Additional Sessions Judge, Karanpur and charges were framed against accused Ravi Kumar under sections 120-B and 302/114 IPC, accused Sandeep Kumar and Raju alias Lala alias Lalit Kumar under sections 120-B, 302/109 and 302/114 IPC, accused Sonu alias Sohan Lal under sections 120-B, 449, 302/109 IPC and accused Raju alias Rajkumar s/o Mohan Lal under sections 302, 449, 120-B IPC and section 3/25, 27(2), Arms Act. After recording some evidence, the case was transferred to ADJ (Fast Track), Sriganganagar. Prosecution examined eighteen witnesses and defence has examined one witness. After hearing arguments, three accused-persons have been acquitted and two accused-appellants have been convicted and sentenced as aforesaid. 4 Learned counsel for the accused-appellants argued that so called dying declaration Ex.P/35 was neither made by deceased nor is in accordance with law and the statements of so called eye-witnesses are full of contradictions and improvements and cannot be believed, conduct of alleged eye-witnesses is unnatural and prosecution has intentionally suppressed FSL Report and prosecution has failed to prove any case against accused persons, even then the lower court has committed error in convicting two accused-appellants, hence, their appeal may be accepted and they may be acquitted of the charges. On the other hand, learned counsel for the complainant and the Public Prosecutor argued that the lower court has given cogent reasons for conviction, and judgment convicting two accused-appellants is in accordance with law and further argued that the prosecution has proved beyond reasonable doubt the case against rest of three accused persons but lower court has committed error in acquitting three accused-persons, hence, appeal of the accused-appellants be dismissed and rest of the three accused-persons may be convicted of the charges levelled against them. PW.17 Arvind Kumar has stated that he recorded “Parcha Bayan” Ex.P/35 of Anil Kumar, further he deposed that he prepared memo of dead body Ex.P/30 and “Panchayat Nama” of deceased Anil Kumar Ex.P/31. Other witnesses have also deposed that Anil Kumar sustained injury by 5 gunshot. PW.3 Dr. Kundan Lal has stated that on 23.12.2001, he examined injuries of Anil Kumar s/o Jai Narayan and found firearm wound on his body and prepared injury report Ex.P/5 and later on, he referred him to Civil Hospital, Sriganganagar. PW.6 Dr. Indrapal Singh has stated that on 24.12.2001, he was Medical Jurist in Government Hospital, Sriganganagar and he conducted post mortem of deceased Anil Kumar vide Ex.D/2 and found a pallet in his neck. Post Mortem Report Ex.D/2 reveals that there was lacerated wound on the neck of deceased and a pallet was found in his neck and his larynx and trachea contained blood. It was further opined, that cause of death was asphyxia. Oral as well as documentary evidence produced by the prosecution have proved beyond reasonable doubt, that death of deceased Anil Kumar was caused by gunshot injury. Now it is to be seen, whether accused Raju alias Raj Kumar s/o Mohan Lal with abetment of other accused- persons, caused death of Anil Kumar by gunshot. PW.17 Arvind Kumar has stated in his statement that on 23.12.2001, he was posted as SHO, Police Station, Gajsinghpur, on that day, at 6.15 p.m., he got information on telephone, that there was some scuffle in Jat Hostel, he made entry in Rojnamcha Ex.P/43 and went to Jat Hostel and from there, he reached to Government Hospital, Gajsinghpur. At 6.40 p.m., he recorded dying declaration Ex.P/35 of injured Anil Kumar, which was signed by Anil Kumar and three other witnesses, and he himself put his signature on Ex.P/35. According to other eye- 6 witnesses viz. PW.12 Rakesh, PW.13 Satbir, PW.14 Daulat Ram, PW.15 Sanjay Singh and PW.16 Pravin Kumar, accused Raju s/o Mohan Lal, on the instigation of accused Sonu, Sandeep and Raju s/o Brijlal fired by pistol on the neck of Anil kumar and then Anil Kumar was taken to hospital, where police came and Anil Kumar's statement was recorded by the police. Parcha Bayan Ex.P/35, which is said to be dying declaration is alleged to have been recorded by PW.17 Arvind Kumar at 6.40 p.m., in which Anil Kumar stated that on 23.12.2001 at 6.00 p.m., Raju and Sonu came to Jat Hostel and told him that he had threatened Ravi to not to come in a street, then he replied that he has not threatened and thereafter Raju fired on his neck in the presence of Rakesh, Satbir, Nemichand, Praveen, Daulat Ram etc. He further stated that Raju was armed with country made pistol. He further stated that Sabir, Nemichand and Rakesh brought him to hospital. This so called dying declaration does not contain name of rest of the three accused-persons Raju alias Lala alias Lalit, Sandeep and Ravi Kumar. All the eye-witnesses have stated in their statements that other accused-persons Lalit and Sandeep were present outside the room of Anil Kumar and they also instigated accused Raju to fire on deceased Anil Kumar, but their police statements Ex.D/3, Ex.D/4, Ex.D/5 and Ex.D/6 do not contain this fact that these two accused Lalit alias Raju and Sandeep were present outside the room of Anil Kumar. These statements reveal 7 that these two accused-persons were standing outside the hostel. Thus, it becomes clear that all the eye-witnesses have made improvement in their statements to falsely implicate rest of the three accused Raju alias Lala alias Lalit, Sandeep and Ravi Kumar. There is no iota of evidence to prove that accused Ravi was ever seen in the street of Girls Hostel and Anil Kumar asked him not to go in that street, which motive is said to be bone of contention. In such circumstances, the lower court has not committed any error in acquitting these three accused-persons of the charges levelled against them. As far as dying declaration Ex.P/35 is concerned, learned counsel for the accused-appellants argued that it is not in accordance with law. The statement admittedly was not recorded in the presence of Magistrate and PW.17 Arvind Kumar has stated in his cross-examination that delay could have been caused in calling Magistrate as condition of Anil Kumar was serious. He has admitted in his cross-examination that he has not recorded the statement of Anil Kumar in accordance with Rule 6.22 of Rajasthan Police Rules, 1965. (hereinafter referred to as 'the Rules of 1965'). Rule 6.22 of the Rules of 1965 is as follows: “Dying declarations.-- (1) A dying declaration shall, whenever possible, be recorded by a Magistrate. (2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. 8 (3) If no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. (4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers. (5) A dying declaration made to a police officer should, under Section 162, Code of Criminal Procedure, be signed by the person making it.” According to this Rule, as far as possible, dying declaration is to be recorded by a Magistrate after getting opinion of the Medical Officer that person, making declaration is in a position to make lucid statement. PW.17 Arvind Kumar admits in his cross-examination that Ex.P/35 neither bears signature of Doctor nor there is any note regarding condition of deponent, but he further stated that on requisition Ex.P/5, Doctor opined that patient was fit for statement. PW.3 Dr. Kundan Lal, who gave opinion on Ex.P/5 received requisition Ex.P/5 at 6.30 p.m. and opined that patient was fit for statement. He has admitted in his cross-examination that dying declaration Ex.P/35 was not recorded in his presence, but he further deposed that he was present in the room at that time. None of the other witnesses has corroborated this fact that PW.3 Dr.Kundan Lal was present in the room of injured when statement Ex.P/35 was recorded by PW.17 Arvind Kumar. Thus, it cannot be believed that statement 9 Ex.P/35 was recorded by Arvind Kumar in the presence of PW.3 Dr. Kundan Lal, otherwise, his signatures would have been obtained on Ex.P/35. Absence of any note of Doctor regarding condition of patient in Ex.P/35 makes it suspicious that Anil Kumar was in a fit condition to make statement particularly when PW.3 Dr. Kundan Lal has denied his presence while recording statement of Anil Kumar. According to Rule 6.22 of the Rules of 1965, if Magistrate cannot be obtained and a gazetted police officer is not present, statement is to be recorded in the presence of two or more reliable witnesses unconnected with the police department and the parties concerned in the case. Admittedly, Ex.P/35 was not recorded by a gazetted police officer. PW.17 Arvind Kumar has stated that Ex.P/35 bears signatures of Rakesh, Satbir and Nemichand. PW.12 Rakesh and PW.13 Satbir have stated in their statements that police recorded Anil Kumar's statement Ex.P/35, which bears their signatures. Perusal of dying declaration Ex.P/35 reveals that it bears only signature of Anil Kumar and after police note on the back of Ex.P/35, Rakesh, Satbir, Nemichand and Anil Kumar have put their signatures and it has also been signed by PW.17 Arvind Kumar. Nemichand has not been examined by prosecution and thus, it cannot be said that Anil Kumar's dying declaration was recorded in the presence of Nemichand. As far Satbir's signatures are concerned, prosecution has examined PW.10 Satbir s/o Bhup Singh, who has stated that he has not seen any occurrence, but he heard that Anil Kumar 10 has been murdered. He does not know, who caused murder. He was declared hostile and has denied the prosecution story. Another Satbir s/o Durga Prasad has been examined by the prosecution as PW.13 and he has stated that he has signed Ex.P/35. He has denied that his signatures were obtained on Ex.P/35 in police station on next day. Signatures of PW.13 Satbir on his Court statement and Ex.P/35 does not tally at all. As a Court witness, wherever he put his signature, he wrote word “सन" with his name, whereas Ex.P/35 does not contain word “ ” सन Ex.P/35 contains a line on the head of alphabet “ ” सतवर whereas signatures of Satbir on his statement recorded in the Court does not contain any line on the head of letters There is complete variance in angle, alignment and formation of every alphabet. Thus, it cannot be believed that PW.13 Satbir was present in the hospital and the dying declaration Ex.P/35 was recorded in his presence. PW.12 Rakesh has stated in his statement that Ex.P/35 bears his signature. He has admitted in his cross- examination that Anil Kumar while giving statement, disclosed names of all the five accused-persons and he cannot say the cause of omission of names of three accused-persons in statement Ex.P/35. If Rakesh's statement is taken to be correct, it would reveal that Ex.P/35 was not given by injured Anil Kumar, otherwise, it would have contained names of all the accused-persons as stated by PW.12 Rakesh. Ex.P/35 bears signatures of Anil Kumar in front as well back page. These signatures inter-se also do not tally and there is 11 complete variance in the angle, alignment and formation of letters, which makes it doubtful that statement Ex.P/35 was given and signed by Anil Kumar. This suspicion gets strength from the fact that injury report Ex.P/5 which was admittedly prepared earlier to statement Ex.P/35, was not get signed by Anil Kunmar, which was necessary. Thus, it becomes clear that statement Ex.P/35, if at all, was given by Anil Kumar and recorded by PW.17 Arvind Kumar, it was recorded in the presence of only PW.12 Rakesh, who is inmate of same hostel and interested witness, though Rakesh himself has denied this statement of Anil Kumar. Thus, it becomes clear that this dying declaration was not recorded in the presence of two or more reliable witnesses, who are unconnected with deceased Anil Kumar. Rule 6.22 of the Rules of 1965 further provides that if such witnesses cannot be obtained, it must be recorded in the presence of two or more police officers. Admittedly, Ex.P/35 has not been recorded in the presence of any other police officer. Thus statement Ex.P/35 as alleged to have been given by injured Anil Kumar is doubtful and is not in accordance with Rules and does not inspire confidence and on the basis of this dying declaration, accused-persons cannot be convicted. PW.17 Arvind Kumar has stated that Ex.P/35 bears signature of Nemichand and the statement was recorded inside the hospital. None of the prosecution witnesses has stated that Nemichand accompanied Anil Kumar inside the hospital. PW.12 Rakesh has stated in his 12 examination-in-chief that he along with Satbir went inside the hospital. He has not admitted presence of Nemichand at all in or near the hospital. He has admitted in his cross-examination that military personnels did not allow other persons except himself and Satbir to go in the hospital with Anil Kumar. PW.13 has stated that he along with Rakesh, Nemichand and Praveen took Anil Kumar to hospital. In his cross- examination, he admitted that he along with Nemichand went to the hospital on foot, whereas Anil Kumar was brought to the hospital by Rakesh. In cross-examination, he has not shown presence of Praveen outside hospital. When Rakesh had already taken injured Anil Kumar inside the hospital and military personnels did not allow any other person to enter into the hospital, then there was no occasion for Satbir and Nemichand to go inside the hospital at the time of recording statement Ex.P/35. PW.14 Daulat Ram has stated that he along with other witnesses took injured Anil Kumar to hospital, but admitted in cross-examination that he was not allowed to go inside the hospital. He has also admitted that military personnels were present in the Government Hospital, so he along with other persons was not allowed to go inside the hospital. PW.15 Sanjay Singh admitted in his cross- examination that Rakesh and Satbir took Anil Kumar inside the hospital. He further admitted in his cross-examination that military guard was present outside the hospital and on quarry, he replied that only two persons can enter into the hospital and, therefore, Rakesh and Satbir went inside the hospital. PW.16 Praveen Kumar has also admitted in his 13 cross-examination that he was not allowed to go inside the hospital and only Rakesh and Satbir went inside the hospital with Anil Kumar. Statements of these witnesses clearly reveal that only Rakesh and Satbir went inside the hospital with Anil Kumar, and Nemichand did not go inside the hospital and thus, dying declaration Ex.P/35 was not recorded in the presence of Nemichand and alleged dying declaration if at all was given by Anil Kumar, it was signed by Nemichand afterwards and thus, this dying declaration is hit by Rule 6.22 of the Rules of 1965. AND in any case by getting it singed by nemichand subsequently, it can very well be said to be an interpolated document, and cannot be used against the accused as an incriminating circumstance. It has been held in 1994 CRI.L.J. 691, Smt. Kalawati vs. State of Rajasthan that where dying declaration has been recorded by police officer not in accordance with provisions of Rule 6.22 of the Rules of 1965, such dying declaration recorded by the police officer is unreliable. PW.17 Arvind Kumar has stated that after recording telephonic message in Rojnamcha, he proceeded to hostel and after some enquiry, he reached to hospital and recorded the dying declaration of Anil Kumar. PW.12 Rakesh and PW.13 Satbir have also stated that Anil Kumar's Parcha Bayan Ex.P/35 was recorded. PW.3 Dr. Kundan Lal has stated that Anil Kumar was in a fit condition to give statement. He has admitted in his cross-examination that if pallet hits larynx 14 below vocal cord and causes perforation, a person can speak till air passes out of perforation. He has further deposed that Anil Kumar was speaking before him. PW.6 Dr. Indrapal Singh, who conducted post mortem of the body of deceased Anil Kumar, deposed that on dissection of neck, he found hole through and through larynx and larynx and windpipe were full of blood. He has admitted in his cross-examination that if a pallet goes through and through larynx, air is bound to leak, which affects voice and there is possibility that one cannot speak. He has further admitted that if larynx and trachea is filled with blood, one cannot speak and there was blood in larynx and trachea of deceased Anil Kumar. He has further deposed that he cannot say after gunshot injury, for how much time, Anil Kumar was in a position to speak. Looking to the nature of the injury and blood in larynx and trachea, it cannot be believed that Anil Kumar was in a fit condition to give statement at 6.40 p.m. PW.17 Arvind Kumar has admitted in his cross-examination that Anil Kumar took near about thirty minutes in giving statement Ex.P/35. Statement Ex.P/35 is of near about 130 words and if half an hour time is taken in deposing 130 words, it can be presumed that Anil Kumar was either not in a fit condition to give statement or his voice was not clear and thus, certificate Ex.P/5 given by PW.3 Dr. Kundan Lal becomes suspicious and in such circumstances, it is doubtful that statement Ex.P/35 was at all given by injured Anil Kumar when he was not in a condition to speak. 15 All the eye-witnesses deposed that two of them admitted Anil Kumar in hospital. PW.17 Arvind Kumar deposed that when he went to the hospital, he enquired from the witnesses present with Anil Kumar and then took opinion of Doctor on Ex.P/5, then recorded statement Ex.P/35. According to the prosecution story, Anil Kumar was admitted in hospital by eye-witnesses before police reached to the hospital. On the contrary, injury report Ex.P/4 reveals that Anil Kumar's injury report was prepared at 6.30 p.m. on the request of police. Ex.P/7 letter for referring Anil Kumar to Civil Hospital, Sriganganagar contains note that Anil Kumar was brought to the hospital by local police. These documents clearly prove that Anil Kumar was brought to the hospital by the police and not by the so called eye-witnesses. In such circumstances, statement of PW.17 Arvind Kumar and other eye-witnesses cannot be believed. According to Arvind Kumar, he got telephonic message at 6.15 p.m., then he entered it in Rojnamcha and proceeded to Jat Hostel. He admitted in his cross-examination that he reached to Jat Hostel at 6.20 p.m. He stayed there for 5 to 7 minutes and then reached to hospital at 6.30 p.m. PW.13 Satbir stated that he reached to hospital at 6.30 p.m. and at the same time, police also came. These, statements and documents prove that Anil Kumar was admitted in the hospital by police authorities and not by alleged eye-witnesses. If Arvind Kumar reached to hospital at 6.30 p.m. and on his request, Anil Kumar was admitted in hospital and his injury report Ex.P/4 was prepared at 6.30 p.m., then requisition Ex.P/5 16 could not have been prepared by Arvind Kumar before 6.30 p.m. to be given to Dr. Kundan Lal at 6.30 p.m. because some time must have been taken in writing the document Ex.P/5, and Ex.P/5 must have been written only after preparation of injury report and starting treatment of injured Anil Kumar. PW.13 Satbir has stated in his statement that first his statement under section 161 Cr.P.C. was recorded and thereafter dying declaration Ex.P/35 of Anil was recorded. If this statement is taken to be true, certainly statement Ex.P/35 cannot be recorded by PW.17 Arvind Kumar at 6.40 p.m. Thus, it becomes suspicious that Anil Kumar was admitted to hospital by alleged eye-witnesses at 6.30 p.m., opinion on Ex.P/5 was given by Doctor and statement Ex.P/35 was recorded by Arvind Kumar at 6.40 p.m. Learned counsel for the appellants submitted that all the eye-witnesses have improved their statements under section 161 Cr.P.C. and there are major contradictions in their statements recorded before the court, hence, they cannot be believed. Perusal of statements of all the eye-witnesses PW.12 Rakesh, PW.14 Daulat Ram, PW.15 Sanjay and PW.16 Praveen Kumar reveals that they have denied almost every material portion of their police statements Ex.D/3 to Ex.D/6 and have given different and improved version before the Court. PW.12 Rakesh has stated in his statement that four accused-persons except Ravi came in the hostel, whereas in