D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Raja Ram @ Raju Ram Versus The State of Rajasthan D.B. CRIMINAL APPEAL NO. 163/2009 AND Dunga Ram Versus Bhagwana Ram & Anr. D.B. CRIMINAL REVISION PETITION NO. 633/2009 Date of Judgment : 20.08.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. D.S. Udawat for the appellant Mr. Rakesh Arora for the petitioner-complainant Mr. K.R. Bishnoi – Public Prosecutor BY THE COURT (PER HON'BLE JOSHI, J.) This judgment will decide D.B. Criminal Appeal No. 163/2009 preferred by accused appellant Raja Ram @ Raju Ram S/o Kishna Ram, by caste Jat, resident of Tarnau, Police Station Jayal, District Nagaur and D.B. Criminal Revision Petition No. 633/2009 preferred by petitioner-complainant Dunga Ram S/o Hanuman against the same judgment of the learned Additional District and Sessions Judge (Fast Track), Nagaur dated 18.02.2009 in Sessions Case No. 59/2007. Page 1 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 D.B. Criminal Appeal No. 163/2009 was preferred against the order of conviction of the accused appellant Raja Ram @ Raju Ram, whereas D.B. Criminal Revision Petition No. 633/2009 was preferred by the petitioner-complainant Dunga Ram S/o Hanuman against the State of Rajasthan as well as accused Bhagwana Ram S/o Kishna Ram, by caste Jat, who was acquitted by the judgment of the learned Additional District and Sessions Judge (Fast Track), Nagaur dated 18.02.2009 in Sessions Case No. 59/2007. Learned District and Sessions Judge (Fast Track), Nagaur while convicting the accused appellant Raja Ram @ Raju Ram, for commission of offence under Section 302 IPC, sentenced him with life imprisonment, alongwith a fine of Rs.15,000/- and further in lieu of default of payment of fine, to further undergo one year's rigorous imprisonment. Accused Bhagwana Ram was acquitted from the charge under Section 302/34 IPC. The nub of the prosecution story was that on 16.10.2007, the complainant Dunga Ram (P.W.7) lodged a written report at the Police Station Jayal alleging inter alia that he was residing at Nagaur for study and on receiving the Page 2 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 information about the murder of his father Hanuman, he reached his village. There his sister Munni told him that in the morning his father had gone to bring sugar and fertilizer. It was further told that Bhagwana, Megha Ram, Raju Ram, Jeetu Ram, Bhura Ram, Ganpat Ram and Ramniwas while passing in front of their house were talking about making arrangement for Hanuman, the deceased. When his father did not return for 2 hours, then his mother and sister went to search for him and they saw that the accused persons named above were beating his father with an axe and lathis, near Melar Nadi. When the mother and sister of the complainant tried to intervene, the accused persons ran away. It was further alleged in the report that 5 to 7 days before this incident, the accused persons Bhagwana, Megha, Jeetu and Raju had come to the sister of the complainant in the night with bad intentions, upon which his father had lodged a complaint. Therefore, the accused persons were annoyed and murdered Hanuman, the father of the complainant. On this report a Criminal Case No. 84/2007 under Section 147, 148, 149 and 302 IPC was registered in the Police Station Jayal and the investigation commenced. During the course of investigation, the statements of the witnesses were recorded and two persons, namely, Raja Ram, the accused appellant in D.B. Criminal Appeal No. 163/2009 and Bhagwana Page 3 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 Ram, the respondent in D.B. Criminal Revision Petition No. 633/2009, were arrested and after usual investigation a charge- sheet was filed against them in the Court of Judicial Magistrate (First Class), Jayal, from where the case was committed to the Court of Additional District and Sessions Judge, Nagaur and ultimately it was transferred to the Court of Additional District and Sessions Judge (Fast Track), Nagaur for trial. Both the accused were charged for commission of offence under Section 302 read with Section 34 IPC, to which they did not plead guilty and claimed to be tried. The prosecution in support of its case examined as many as 18 witnesses, namely, P.W.1 Chhagan @ Akbar, P.W.2 Loduram, P.W.3 Ramchandra, P.W.4 Deepak Yadav, P.W.5 Bastiram, P.W.6 Chandaram, P.W.7 Dungaram, P.W.8 Bhanwari Devi, P.W.9 Munni, P.W.10 Ramkishor, P.W.11 Hadman Khati, P.W.12 Ramkunwar, P.W.13 Dr. Ganpat Ram Kaler, P.W.14 Ramniwas, P.W.15 Virendra Singh, P.W.16 Prakash Chand, P.W.17 Prahlad and P.W.18 Shrawan Kumar. The incriminating evidence produced against the accused were put to them for explanation under Section 313 CrPC and the accused adduced evidence of one witness, namely, D.W.1 Narpat Singh in their defence. P.W.13, Dr. Ganpat Ram Kaler conducted the Page 4 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 autopsy of the body of the deceased Hanuman on 16.10.2007 and he proved the postmortem report Ex.P.16 and as per his opinion, the cause of death of the deceased was injury to right temporal region which caused depressed fracture of underlying bones and excessive bleeding leading to shock and death, i.e. hemorrhagic shock. On examination he found the following 9 external injuries on the body of the deceased :- (i)Lacerated wound over right temporal aspect from anterior to right ear and underlying depressed fracture of temporal and frontal bone oblique 6cm x 2 ½ cm x bone deep. Ante- mortem in nature. Blood also coming out of right ear. (ii)Lacerated wound over right fore-arm- 3 ½ cm x 2 ½ cm x 3/4 cm. Ante-mortem in nature. (iii)Contusion over left scapular aspect of back oblique 8cm x 2 ½ cm. Ante-mortem in nature. (iv)2 parallel contusion over right scapular aspect of back oblique 6 ½ cm x 2 ½ cm. each. Ante-mortem in nature. (v)Abrasion over back 3 ½ cm x 3 cm – 2 in number – one below to upper back. Ante-mortem in nature. (vi)Contusion right hip lat and perterum aspect – 3 in number – each 6 ½ cm x 2 ½ cm in dimension – Ante-mortem. (vii)Abrasion left knee 4 ½ cm x 3 ½ cm. - Ante-mortem. (viii)Left eye ball swollen and due to intracranial hemorrhage eye ball is reddish and swollen. (ix)Contusion right chest wall lat aspect 8 cm x 3 ½ cm – Ante- mortem in nature. Thus, in view of the cause given in the postmortem report Ex.P.16, homicidal death of the deceased Hanuman was established beyond any shadow of doubt. Page 5 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 P.W.15, Virendra Singh was examined as the Investigating Officer of this criminal case and he deposed about all the steps taken during the course of investigation. The learned trial court vide the judgment dated 18.02.2009 relied upon the statements of the eye-witnesses adduced during the course of trial as P.W.4 Deepak Yadav, P.W.8 Bhanwari Devi and P.W.9 Munni and also relied upon the circumstantial evidence regarding the recovery of lathi at the instance of the accused appellant Raja Ram as per information recorded under Section 27 of the Indian Evidence Act and further finding of the Forensic Science Laboratory report regarding the presence of 'A' blood group on the lathi recovered at the instance of the accused appellant Raja Ram. The learned counsel for the accused appellant contended that the statements of 3 eye-witnesses P.W.4 Deepak Yadav, P.W.8 Bhanwari Devi and P.W.9 Munni could not be relied upon and the reliance placed upon the evidence of above 3 witnesses suffered from infirmity and illegality and the appreciation of the evidence of these 3 witnesses by the trial court was not proper. Learned counsel for the accused appellant further argued that the First Information Report Ex.P.12 was Page 6 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 presented by P.W.7 Dunga Ram, the son of the deceased, who was not an eye-witness of the incident and as per the contents of the First Information Report, it bears the names of 7 persons as assailants as disclosed by the mother and sister of the complainant. There are inherent contradictions in the statements of P.W.4 Deepak Yadav, P.W.8 Bhanwari Devi and P.W.9 Munni. P.W.4 Deepak Yadav deposed that there were only 2 accused persons Raja Ram and Bhagwana Ram who caused injuries to the deceased. He further deposed that he asked both the accused about the reason for beating, then both of them told him that he had nothing to do with that, then he returned back to his home with tractor. Whereas P.W.8 Bhanwari Devi and P.W.9 Munni, both eye-witnesses deposed that when they reached Melar Nadi, they saw the accused alongwith some more persons. P.W.8 Bhanwari Devi deposed that in addition to Bhagwana Ram and Raju Ram, there were Megharam, Ganpatram, Jeeturam, Bhuraram and Ramniwas, whereas P.W.9 Munni deposed names of only 4 persons, namely, Jeeturam, Ganpat, Megharam and Bhuraram. Learned counsel for the accused appellant also argued that the conduct of P.W.4 Deepak Yadav was not in accordance with the normal human conduct and behaviour and further the conduct of P.W.8 Bhanwari Devi and P.W.9 Munni was also not according to human conduct and behaviour because none of these 3 eye-witnesses tried to rescue Page 7 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 the deceased Hanuman and just after the incident P.W.8 Bhanwari Devi and P.W.9 Munni came to their house and P.W.4 Deepak Yadav went to his own house. The contention of the learned counsel for the accused appellant is that the statements of P.W.8 Bhanwari Devi and P.W.9 Munni regarding the fact that both the accused alongwith 4-5 other persons while going towards Nadi were slogging in loud words that they would have to finish Hanuman, could not be relied. The another argument advanced by the learned counsel for the accused appellant is that as per the statement of P.W.8 Bhanwari Devi and P.W.9 Munni, deceased Hanuman started with Rs.15,000/- for purchasing some domestic goods from the market and just after 2 hours when he did not return back, they started to look for Hanuman, this statement of P.W.8 Bhanwari Devi and P.W.9 Munni also did not inspire confidence and faith. Learned counsel for the accused appellant also argued that P.W.4 Deepak Yadav did not depose that when he was witnessing the incident, he saw P.W.8 Bhanwari Devi and P.W.9 Munni at the place of occurrence and neither both these witnesses deposed about the presence of P.W.4 Deepak Yadav at the place of occurrence, thus, there were inherent infirmities and contradictions in the statements of thees 3 witnesses and Page 8 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 therefore, reliance placed by the learned trial Judge on the statements of thees 3 witnesses was not proper. Regarding the circumstantial evidence of recovery of lathi and further presence of blood stains on the lathi as well as clothes of the accused and the deceased, the learned counsel for the accused appellant argued that P.W.3 Ramchandra deposed in his statement that lathi was recovered at the instance of Raju Ram from the trolley of a tractor, whereas another witness P.W.5 Bastiram, who was also the motbir of memo Ex.P.8 Fard, did not depose anything about the place of recovery and he simply deposed that Ex.P.8 was signed by him. As per Ex.P.8 the memo of recovery of lathi, it was recovered from the Guwadi of the accused Raju Ram from the Tudi (grass). Thus, there was a material contradiction in the statement of P.W.3 Ramchandra, P.W.5 Bastiram and the recovery memo Ex.P.8. The learned counsel for the accused appellant further contended that P.W.3 Ramchandra was the interested witness as in his cross-examination he deposed that he reached the place of occurrence on the basis of the information received from some boys and the First Information Report was handed over to the Investigating Officer at 11.35 a.m. and Fard Panchnama Lash was prepared at 11.30 a.m. in which P.W.3 Ramchandra was Page 9 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 also a witness, thus, the presence of Ramchandra at the time of preparation of Panchnama Lash (Ex.P.3) was doubtful and it created further doubts about the prosecution story. Per contra, learned Public Prosecutor vehemently defended the judgment of the learned trial court and argued that the contradictions as referred by the learned counsel for the accused appellant were of minor nature and they were natural consequence of the presence of the witnesses at the site and it could not be expected from the eye-witnesses to state photographic picture of the incident in the court after lapse of six month of the incident. We have given our thoughtful consideration to the rival contentions of learned counsel of the parties and evaluated and scanned the evidence of eye-witnesses P.W.4 Deepak Yadav, P.W.8 Bhanwari Devi and P.W.9 Munni and also the circumstantial evidence regarding the recovery of lathi and presence of blood stains on the lathi as well as clothes of the deceased and the accused. There was a lacerated wound on the temporal region with consequential fracture of right temporal bone with no other injuries on the skull. In addition to it other injuries were found Page 10 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 on the body of the deceased which were superficial. Deceased sustained the fracture of right frontal bone also. Reverting to the appreciation of the evidence regarding the incident, we do not find any credence in the statement of P.W.4 Deepak Yadav, P.W.8 Bhanwari Devi and P.W.9 Munni which suffered from sharp contradictions and were mutually destructive to each other. Firstly it is unbelievable that P.W.8 Bhanwari Devi and P.W.9 Munni could get worried on account of non-returning of the deceased after two hours from the time of his departure from the residence. It was alleged that the deceased went to purchase some seeds and other items at 7.00 am. And both these witnesses started to search his whereabouts at 9.00 a.m. Looking to the considerable distance from the dhani of the deceased, a period of two hours could not be unusual so as to cause any concern. Both the witnesses P.W.8 Bhanwari Devi and P.W.9 Munni deposed that while they were searching the deceased, they saw the incident at Melar Nadi. This did not inspire confidence and their presence at the scene of occurrence was seriously doubtful. Assuming that threats might have persuaded them Page 11 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 from intervening, still they could have raised shouting so as to attract others to extend help. Their conduct is also not natural. To create the evidence of res gestae, P.W.8 Bhanwari Devi and P.W.9 Munni both had deposed that a tractor passed on the road at about 8 a.m. Seven persons named in the First Information Report were on the tractor who were saying that the score against Hanuman would be settled on that day itself. There was no reason for the accused persons to make such statement nor anybody will make his enemy alert by making such statements well in advance and will create unnecessary evidence against themselves. It was not possible to hear such statements by a person sitting in the dhani, especially because engine of the tractor generates loud noise. Thus, untrustworty statement further raised doubt towards their regard for truth. According to P.W.4 Deepak Yadav, there were only two assailants, namely, Raju Ram and Bhagwana Ram. To the contrary seven persons had been named in the First Information Report which was lodged by son of the deceased, who was at Nagaur at the time of the incident. P.W.8 Bhanwari Devi and P.W.9 Munni also tried to implicate seven persons in their statements recorded under Section 161 CrPC, but charge-sheet was filed only against two persons. An unsuccessful challenge by Page 12 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 way of revision was made against order of taking cognizance against two persons only. Again in the court evidence P.W.8 Bhanwari Devi and P.W.9 Munni implicated seven persons. Learned trial court concluded trial against two persons and while acquitting Bhagwana Ram, recorded conviction of accused Raja Ram @ Raju Ram on the basis of recovery of lathi coupled with ocular evidence. As per the ocular evidence of P.W.8 Bhanwari Devi and P.W.9 Munni, seven persons were actively involved in beating deceased Hanuman. P.W.4 Deepak Yadav deposed that besides Raju Ram, Bhagwana Ram was also beating the deceased. According to the conclusion drawn by the learned trial court, the murder was committed by single person. Therefore, a reasonable doubt arises whether that single person was the accused appellant or the other accused named by P.W.4 Deepak Yadav or yet another person from amongst those who were named by P.W.8 Bhanwari Devi and P.W.9 Munni. If there was unquestionable proof of recovery of lathi at the instance of the accused appellant Raju Ram as also about its use in causing death of the deceased, a reasonable inference could be drawn about the guilt of the accused. But looking to the contradictions available on record in the statements of motbirs of Page 13 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 recovery memo Ex.P.8 of lathi, there is no unimpeachable evidence against the accused appellant. It was also not proved beyond doubt that this lathi was stained with blood of deceased Hanuman and there were infirmities in recovery evidence also. As a result of discussion made hereinabove, it cannot be said that prosecution has proved its case beyond doubt, which incline us to extend the benefit of doubt to the accused appellant Raja Ram @ Raju Ram and the appeal filed by him deserves to be allowed. Now coming to D.B. Criminal Revision Petition No. 633/2009, in the light of the discussion made above, the appreciation of the evidence made by learned trial court against respondent Bhagwana Ram could not be said to be suffering from any infirmity because against him there was not even any evidence of recovery of weapon except tractor. Therefore, the finding of the learned trial court regarding respondent Bhagwana Ram does not require any interference and accordingly affirmed and the revision petition filed by petitioner-complainant Dunga Ram deserves to be rejected. Resultantly, D.B. Criminal Appeal No. 163/2009 filed by appellant Raja Ram @ Raju Ram is allowed and the judgment Page 14 of 15 D.B. Criminal Appeal No. 163/2009 D.B. Criminal Revision Petition No. 633/2009 of conviction and order of sentence dated 18.02.2009 passed by the learned Additional District and Sessions Judge (Fast Track), Nagaur in Sessions Case No. 59/2007 is set aside and the accused appellant Raja Ram @ Raju Ram is acquitted of the charges levelled against him. He be set at liberty forthwith, if not required in any other case. D.B. Criminal Revision Petition No. 633/2009 filed by petitioner-complainant Dunga Ram against acquittal of accused-respondent Bhagwana Ram is rejected. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. Pramod Page 15 of 15