DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Kamla. vs. State of Rajasthan. D.B.CRIMINAL APPEAL NO.1044/2003 UNDER SECTION 374 Cr.P.C. AGAINST THE JUDGMENT AND ORDER DATED 28.7.2003 PASSED BY SHRI MANOJ KUMAR VYAS, ADDITIONAL SESSIONS JUDGE (FAST TRACK), UDAIPUR IN SESSIONS CASE NO.23/2003. DATE OF JUDGMENT ::: September 11th, 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. C.M. TOTLA, J. Mr.Dhirendra Singh, for the appellant. Mr.VR Mehta, Public Prosecutor. - - - - - BY THE COURT (PER HON'BLE MR.PRAKASH TATIA, J.): Heard learned counsel for the parties. This appeal has been preferred by the appellant against his conviction for offence under Section 302 DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 2 IPC by the Court of learned Additional Sessions Judge (Fast Track), Udaipur in Sessions case no.23/2003 vide judgment dated 28.7.2003 and order of sentence by which the appellant has been sentenced to undergo life imprisonment and a fine of Rs.1,000/- has been imposed and in default of payment of fine, to further undergo three months rigorous imprisonment. As per the prosecution case, PW13 Ram Singh, S.H.O. of the Police Station, Dhariawad received a telephonic information at 11:15 PM on 6.10.2002 from unknown person that day before yesterday, (Mr.) Kamla has inflicted injury by sharp edged weapon upon his brother Hira Lal, upon which Hira Lal died yesterday. Today his body will be burnt (cremated). On receipt of this information, parcha kayami report Ex.P/3 was drawn and S.H.O. Ram Singh along with police staff Joravar Singh, Raghunath Singh and Mohan Singh started for the place of incident by Government jeep. In the village of deceased Hira Lal, they found deceased Hira Lal's father – Champa Lal along with other villagers. There PW1 complainant Champa Lal submitted oral report on the basis of which FIR Ex.P/51 was drawn and a case under Sections 302 and 201 IPC was registered. As per the oral report of the complainant, Champa Lal, he had five sons namely, Hira Lal, Banshi Lal, Laxman, Shanker and DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 3 Kamla out of whom, Banshi Lal and Kamla lived together whereas other three sons were living separately. Champa Lal stated that he was living with his son Laxman. Shanker was teacher and posted in different village. Banshi Lal and Laxman were at Udaipur. Only Hira Lal and Kamla were in the village. Hira Lal's wife Amba left Hira Lal two months ago and went to her parent's house along with her children. Champa Lal stated that day before yesterday at about 3:00 PM, he was sitting on the cot outside Laxman's house, at that time, Hira Lal also came there and accused appellant Kamla was present in the house. Hira Lal from the Aangan of Laxman's house told Kamla that this year there is famine and you have not given me a single agriculture field, therefore, I will also cultivate one agriculture field. Upon this, accused Kamla told Hira Lal that in case, he will try to do so, then the appellant will broke down his hands and legs. In this altercation, appellant Kamla took a knife from his house and went towards victim Hira Lal and inflicted 2-3 blows of knife in the stomach of deceased Hira Lal. Hira Lal holding his stomach sat down on the ground. The complainant Champa Lal shouted why (accused) is inflicting injuries. The complainant asked the accused appellant to leave Hira Lal upon which the appellant left the place. The complainant thereafter took some DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 4 leaves of plant Arandi and put those leaves on the wounds of Hira Lal and gave help to Hira Lal to go to his house. He was put on the cot from where the victim was shouting. In the evening, the complainant went to Sarpanch of the village Lalji and told him about the incident. Sarpanch helped the complainant to take the victim Hira Lal to Dhariawad Hospital. There victim was given injection and looking to the injuries, the doctor advised to take the victim at Udaipur. Since the complainant had no sufficient money, therefore, he came back to the house and after arranging money, on the next day, took the jeep on hire and started for Udaipur with victim along with one Chagan and another Khemraj @ Khemji. On the way to Udaipur at Aarampura Ghata, the victim died upon which they came back. Thereafter, Khemji and Santosh etc. were sent to the village of Hira Lal's wife who brought her to the house. The complainant mentioned in the report that they were thinking to inform the police but before they could inform the police, the police reached on the spot and Champa Lal submitted this oral report to police on the spot. During investigation, site inspection report Ex.P/8 was prepared and relevant blood stained and sample soils were taken and memo Ex.P/9 was prepared. From the cot of deceased, handkerchief and baniyan of DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 5 deceased with blood stains were seized and seizure memo Ex.P/10 was prepared upon which the appellant's thumb impression were also taken. On the same day, the statement of complainant Champa Lal under Section 161 Cr.P.C. were recorded. The statements of other witnesses Lalji, Amba, Poonam Chand, Khemji and Santosh were recorded. Accused appellant Kamla was arrested and his arrest memo Ex.P/15 was duly prepared. Accused appellant gave information about knife under Section 27 of the Evidence Act which was recorded vide Ex.P/16. The accused informed that he put the weapon of offence in his house. In pursuance of that information, the knife was recovered and for that recovery memo Ex.P/3 was prepared which was signed by the appellant. The knife was sealed on the spot itself and seals impression were taken on the seizure memo. Articles were deposited in the Malkhana and ultimately, sent for chemical examination to FSL from where report Ex.P/17 was obtained. After investigation, challan was filed against the accused appellant and charges referred above were framed against the accused appellant which were denied by the accused appellant and he sought trial. At the trial, the prosecution examined in total 14 witnesses namely, PW1 Champa Lal, PW2 Amba, PW3 Nar Singh, PW4 Dinesh, PW5 Kajodi Mal, PW6 Khemji, PW7 DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 6 Chagan Lal, PW8 Poonam Chand, PW9 Amrit Lal, PW10 Ram Chandra, PW11 Dr.Ashok Gupta, PW12 Santosh, PW13 Ram Singh and PW14 Lalji. The accused appellant was examined under Section 313 Cr.P.C. Appellant Kamla denied the allegations and stated that he is innocent. After trial, the trial court convicted appellant Kamla under Section 302 IPC and has sentenced him as aforesaid. Learned counsel for the appellant vehemently submitted that complainant Champa Lal who was the only eye witness as per the prosecution, did not support the prosecution case and was declared hostile. Therefore, there is no eye witness to the incident. The appellant has been convicted by the trial court only on the ground of alleged dying declaration. According to learned counsel for the appellant, it is the case of no evidence against the appellant and alleged dying declaration has not been proved and from the evidence produced by the prosecution itself, it is clear that the prosecution failed to establish the dying declaration. It is also submitted that the weapon of offence was not recovered from the appellant. It is also submitted that the knife which was produced by the appellant had no blood stains and, therefore, the knife produced by the prosecution is not the article by which DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 7 the offence was committed by anybody. Learned Public Prosecutor submitted that complainant Champa Lal is father of appellant and his one son Hira Lal died in the incident and, therefore, if Champa Lal has not supported the prosecution case, then it was due to obvious reason to save his second son – appellant. Even if Champa Lal did not support the prosecution case totally but from the evidence of Champa Lal, it is fully established that the appellant committed the murder of his own brother Hira Lal. It is also submitted that there is no reason to disbelieve the dying declaration made by the victim before the independent persons. We considered the submissions of learned counsel for the appellant and learned public prosecutor and perused the record and the reasons given by the trial court in the impugned judgment. As per the prosecution case itself, no formal report was lodged by complainant Champa Lal about the alleged murder of his son Hira Lal for two days. The police was given information by unknown person on telephone on third day after the death of Hira Lal. According to the oral report submitted by Champa Lal in DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 8 the village itself, it is clear that several persons were present with Champa Lal and the dead body was lying there. On the day when the victim was injured, the Sarpanch of the village was informed by complainant Champa Lal as per the case of prosecution itself. The Sarpanch of village – Lalji did not lodge any FIR nor informed the police about the incident for two days. The only eye witness is Champa Lal and none else. He did not support the prosecution and became hostile. The statement of Champa Lal cannot be rejected totally merely because he turned hostile. However, his statement needs corroboration and if we consider the evidence of other witnesses also, then the entire village has not informed the police about the incident for such a long period of three days. Neither the Sarpanch of the village – PW14 Lalji nor deceased Hira Lal's wife Amba PW2 nor any of the brother of deceased Hira Lal gave information to the police. As per PW1 Champa Lal, Hira Lal's wife Amba was called from her parent's house and she saw victim Hira Lal with injuries yet she did not report the amtter to the police. Champa Lal stated that he informed PW14 Lalji. However, Lalji stated that he has no knowledge how Hira Lal died. According to PW1 Champa Lal, Lalji was the first person to whom he contacted, then he did not tell Lalji about inflicting injury by the DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 9 appellant. Witness Lalji (PW4) is also hostile witness and did not support the prosecution. Witness PW2 Amba, wife of Hira Lal, had some dispute with her husband or with other family members of her husband as she herself stated that her husband's family members compelled her to go to her parent's house. She also admitted that she left Hira Lal's house with all her baggages. Her reaction after seeing dead body of her husband is unnatural. She had no good relations with the appellant, therefore, in all probability, she would have informed the police that her husband was killed by the appellant by lodging FIR but that was not done. The trial court convicted the appellant on the basis of the alleged dying declaration for which there are witnesses PW6 Khemji and PW7 Chagan Lal. PW6 Khemji in his examination in chief stated that the complainant Champa Lal came to his house and told him that two brothers fought and we have to take Hira Lal to Udaipur. PW6 Khemji, therefore, boarded the vehicle in which Hira Lal was there and in the jeep Hira Lal told him that the appellant Kamla pierced knife in his body. In the cross examination, he stated that Hira Lal told this fact to him at his (Khemji's) shop. When he was confronted with his earlier statement, Ex.D/1, then he denied that he gave statement to the police that he DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 10 went to the house of Hira Lal and there, Hira Lal told him that the appellant inflicted the injury. In the cross examination, he again reiterated that Hira Lal told this fact to the witness Khemji at his shop and he did not go to the house of Hira Lal. Therefore, as per the statement of PW6 Khemji, Hira Lal gave dying declaration firstly at Hira Lal's house, secondly in the vehicle in which Hira Lal was taken to the Udaipur and thirdly at his own shop. In cross examination, he tried to stick upon his stand that the dying declaration was made at his shop. There is no evidence how and when Heera Lal was taken to witness Khemji's shop. Therefore, from PW14, Khemji's statement – dying declaration is not proved. Another witness of this dying declaration is PW7 Chagan Lal. He did not support the prosecution and was declared hostile and denied his earlier statement Ex.P/6 wherein he mentioned that Hira Lal told him that appellant Kamla pierced knife in his stomach. The dying declaration is important piece of evidence and the accused cannot get opportunity to cross examine the person who made the statement but here in this case, there is no trustworthy evidence for the alleged dying declaration of Hira Lal. The trial court committed serious error in relying upon the alleged dying declaration on the basis of evidence of only witness DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 11 supporting prosecution PW6 with the help of hostile witness PW7. Apart from above evidence, there is evidence of deceased Hira Lal's wife Amba PW2 who also stated that the appellant Kamla himself told her that he killed the victim Hira Lal. This statement is also not corroborated by any other evidence. She did not disclose when and under what circumstance, the appellant told her this fact. Admittedly, at the time of incident, she was not present in the village. She because of the dispute with her husband left her husband and started living at her parent's house as she stated so in her first line of examination in chief. She was called at his husband's house only after the death of her husband and she found her husband dead when she reached to her husband's house. In cross examination, she stated that 3-4 persons inflicted injuries upon the deceased and she saw injuries on the stomach, one on hand, one on leg and one on neck etc. That was not the case of prosecution and not supported by medical evidence. Her relation was so strained that even when she reached to her husband's house, after death of her husband, the villagers told her that for what, she came there. Therefore, the evidence of PW2 Amba do not connect the accused with crime. Another circumstance which is relevant for DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 12 consideration is alleged recovery of knife at the instance of the accused appellant. As per the information under Section 27 of the Evidence Act given by the appellant Ex.P/16, the appellant gave information that he put the knife which had blood stains over it in his house and that too in the Kotah which he can get recovered. In pursuance of this, the knife was recovered and recovery memo is Ex.P/3. As per the recovery memo Ex.P/3, the knife was recovered from the Kotah in the house of the appellant. The witness to this recovery is PW3 Nar Singh who admitted his signature on the recovery memo Ex.P/3, in cross examination, stated that knife was recovered from near a bush and it was taken out from the bush by the appellant's brother Laxman's wife. The knife was not sealed in his presence. The same is the statement of another witness to recovery namely, PW4 Dinesh who also stated that the appellant's brother's wife took out the knife from the bush and the knife was not sealed on the spot and was taken from there as open article. PW4 Dinesh in addition to above in cross examination clearly stated that they all tried to search the knife and ultimately, the appellant's brother's wife Jamna could trace the knife. In view of the above evidence of the prosecution, the knife was not recovered at the instance and in furtherance to the information of the DB Criminal Appeal No.1044/2003 (Kamla. vs. State) 13 accused appellant given under Section 27 of the Evidence Act. From all above evidence, it is clear that there is no trustworthy ocular evidence from any witness connecting the appellant with the crime. The alleged dying declaration is highly improbable and unbelievable. The weapon of offence has not been recovered at the instance and in furtherance of the information given by the appellant. The weapon of offence produced by the prosecution had no blood over it. In view of the above discussion, this appeal of the appellant Kamla is allowed, the judgment and order of the trial court of conviction and sentence dated 28.7.2003 passed in Sessions Case No.23/2003 is set aside and the appellant is acquitted for the charge under Section 302 IPC. The appellant is in jail, he be released forthwith, if not needed in any other case. (C.M. TOTLA), J. (PRAKASH TATIA), J. S.Phophaliya