IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT 1. Dhuji Ram & 13 Others Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.213/2001) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 27-3-2001 in Sessions Case No.72/1999 passed by Shri M.L. Gaur, RHJS, Additional Sessions Judge Hindaun City. 2. Ravi @ Ravindra & 8 Others Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.1528/2007) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 31-7-2007 in Sessions Case No.221/2001 (63/2000) passed by Shri Ashok Kumar Sharma, RHJS, Additional Sessions Judge (Fast Track) Hindaun City, District Karauli. Date of Judgment: January 08, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Kamlakar Sharma] for the appellants. Mr. Biri Singh ] Mr. Kamlendra Sihag] Mr. Ashvini Kumar Sharma, Public Prosecutor for the State. Mr. Arvind Kumar Gupta, for the complainant. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Tara Chand Jain, aged 68 years, was brutally attacked at 6.30 AM on August 4, 1998 while he came out of the house of one Bane Singh Jat and was passing in front of Panchayat Bhawan. As many as 28 persons were named as assailants in the written report handed over by informant Rakesh Kumar Jain at Police Station Hindaun. Eighteen accused were nabbed and put to trial in Sessions Case No.72/1999. Four accused viz.Devi Singh, Bhagwat Singh, Maharaj Singh and Ramdev were acquitted and remaining fourteen were convicted and sentenced by learned Additional Sessions Judge Hindaun City vide judgment dated March 27, 2001 as under:- Appellant Mahesh u/s.302 and other appellants U/s.302/149 IPC: Each to suffer imprisonment for life and fine of Rs.1000/-, in default to further suffer simple imprisonment for three months. U/s.148 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs.1000/-, in default to further suffer simple imprisonment for three months. The substantive sentences were ordered to run concurrently. 2. During the pendency of Appeal No.213/2001 appellant Chandan Singh s/o Ram Prasad died and proceeding against him stands abated. Remaining ten accused were separately tried in Sessions case No.221/2001 (63/2000). Learned Additional Sessions Judge Hindaun City vide judgment dated July 31, 2007 convicted and sentenced nine accused persons thus:- U/s.302/149 IPC: Each to suffer imprisonment for life and fine of Rs.1000/-, in default to further suffer imprisonment for six months. U/s.148 IPC: Each to suffer rigorous imprisonment for two years and fine of Rs.200/-, in default to further suffer imprisonment for one month. The substantive sentences were ordered to run concurrently. Since accused Padam Singh did not appear on the date of pronouncement of judgment, order of sentence could not be passed against him. The nine convicted accused have filed Appeal No.1528/2007. Since both the appeals relate to one incident, we have heard both the appeals analogously and they are being decided by a common judgment. 3. The prosecution story is woven like this:- On August 4, 1998 at 1.30 PM Entry No.182 was made in Daily Diary of Police Station Hindaun City, pursuant to written report (Ex.P-1) submitted by Rakesh Kumar Jain (Pw.1) wherein it was stated that at 6.30 AM his father Tara Chand Jain had gone to the house of Bane Singh Jat for reminding him about payment of loan. As soon as he came out of the house, 28 persons (named in the report) who were armed with Dharia, Pharsa and lathis, surrounded his father, inflicted injuries on his person indiscriminately and killed him. The incident had been witnessed by Nevo Singh, Mahesh and Kanwar Singh. Mahesh came to his house and informed him about the incident. He then rushed to the spot and found his father dead. On that report case under sections 147, 148, 149 and 302 IPC was registered and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, 18 appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Hindaun City. Charges under section 148, 302 and 302/149 IPC were framed in Sessions Case No.72/1999 against 18 appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions, while acquitting four accused, convicted and sentenced fourteen appellants as indicated herein above. In Sessions Case No.221/2001 (63/2000) charge sheet was filed against ten accused and charges under sections 148 and 302/149 IPC were framed, which were denied by them. The prosecution examined as many as 16 witnesses. In the explanation under section 313 CrPC the accused claimed innocence. No defence witness was examined by them. Learned trial Judge vide judgment dated July 31, 2007 convicted and sentenced the appellants as stated above. 4. Learned counsel for the appellants while assailing the impugned judgment took us through the material on record. 5. Death of Tara Chand Jain was undeniably homicidal. As per Post Mortem report (Ex.P-7) following ante mortem injuries were found on the dead body:- 1. Incised wound of 10cm x 1cm x bony deep on the Rt. parietal region of head on posterior part. Bleeding present clotted blood present in and around the wound. On dissection there is fracture of Rt. parietal bone under the wound. Fracture fragment directing inside skull cavity underlying membranes cut & torn underlying bruise matter cut & lacerated. Blood clott present in the membranes on the surface of brain. 2. Incised wound of 7cm x 1cm bony deep on Lt. leg anteriorly in middle part. No fracture of tibia & fibula seen. 3. Incised wound of 6cm x 1cm x bony deep on lt. ankle region on medial no fracture. 4. Three incised wound crossing each other on posterior aspect of Rt.leg (calf)in middle 2/3 part. The area of centre at which three wounds crossing each the muscles & tenderness are absent making a large wound of 9cm x 6cm bony deep at its periphari ends of incised wounds clearly visible. On dissection there is linear oblique cut on the posterior of tibia. 5. Superficial linear cut of 16cm x 1/8 cm on Rt.scapular region extending downwards upto infra scapular region. 6. Ten bruises on Rt.thigh antero lateral aspect in upper part measuring: 1. Size of Ist bruise which is lower most in 7cm x 2cm. 2. Size of Iind bruise 9cm x 1.5 cm just above bruise No.1. 3. Size of IIIrd bruise 12cm x 2 cm just above bruise No.2. 4. Size of Ivth bruise 10cm x 1.5 cm just above bruise No.3. 5. Size of Vth bruise 9cm x 1.5 cm just above bruise No.4. 6. Size of Vith bruise 8cm x 1.5 cm just above and crossing bruise. 7. Size of VIIth bruise 13cm x 2 cm just above bruise No.5. 8. Size of VIIIth bruise 12cm x 2cm crossing above bruises No.2,3,4,5. 9. Size of Ixth bruise 7cm x 1.5 cm just parallel to bruise No.8. 10. Size of Xth bruise 10cm x 1.5 cm just posterior to bruise No.9. 7. Seven bruises on Rt. hips gluteal region: 1. Size of Ist bruise in the lower part of Rt.hip 8cm x 1.5 cm. 2. Size of Iind bruise 10cm x 1.5 cm just above bruise No.1. 3. Size of IIIrd bruise 12cm x 2cm just above bruise No.2. 4. Size of IV bruise 13cm x 2 cm just above bruise No.3. 5. Size of Vth bruise 15cm x 1.5 cm just above bruise No.4. 6. Size of Vith bruise 11cm x 2cm just above bruise No.5. 7. Size of VIIth bruise 16cm x 2cm just above bruise No.6. 8. 4 (Four) bruises on Rt.lumber region posteriorly: 1. Size of Ist bruise 8cm x 2cm. 2. Size of Iind bruise 6cm x 2cm just above Ist. 3. Size of IIIrd bruise 5cm x 1.5 cm just above Iind. 4. Size of Ivth bruise 8cm x 1.5 cm just above 3rd. 9. 3 (Three) bruises on Rt. Infra scapular region of back. 1. Size of lower bruise 14cm x 1.5cm. 2. Size of 2nd bruise 14cm x 1.5 cm just above Ist bruise. 3. Size of 3rd bruise 16cm x 2cm just above Iind bruise. 10. Bruise of 6cm x 3cm on dorsal aspect of Rt.hand just below the right thumb. In the opinion of Dr. Ram Lal Meena (Pw.7) the cause of death was head injury caused by injury No.1 and hemorrhagic shock resulting from cummulative effect of other injuries. 6. Learned counsel for the appellant contended that all the alleged eye witnesses were closely related to deceased and they were highly interested in prosecution. The witnesses namely Nabo Singh (Pw.2), Badan Singh (Pw.3), Shiv Charan (Pw.4), Kamar Singh (Pw.5), Mahesh Chand Jain (Pw.6) and Vidhya Devi (Pw.10) were chance witnesses whose presence was highly doubtful. The alleged eye witnesses failed to respond to the impugned assault in a natural and probable manner, their presence becomes highly suspicious. According to medical evidence the deceased died at around in mid-night, as such none of the eye witnesses could be present on the spot. It was further contended that learned Judge lightly brushed aside the significant aspect reflected from medical evidence and failed to find out the alleged common object of the so-called unlawful assembly. He did not care to discuss the evidence in order to discern the formation of unlawful assembly as to why was it formed? According to learned counsel testimony of witnesses bristles with numerous contradictions. 7. Learned Public Prosecutor and learned counsel counsel for the complainant on the other hand supported the impugned finding and urged that the appellants were rightly convicted and sentenced. 8. Having closely scrutinised the material on record we notice that the prosecution case is founded on the testimony of Naivo Singh (Pw.2), Badan singh (Pw.3), Shiv Charan (Pw.4), Kamar Singh (Pw.5) Mahesh Chand Jain (Pw.6) and Smt.Vidya Devi (Pw.10), who have been examined as eye witnesses of the occurrence. From the cross examination of witnesses it appears that there was bitter enmity between the prosecution party and the accused party. Group of persons surrounded deceased and inflicted injuries. Since learned counsel for the appellants termed the eye witnesses as interested and chance witnesses their evidence is subjected to greater scrutiny. While separating chaff from the grain we have to choose only those accused to whom specific overt acts have been attributed consistently by all witnesses. 9. Mahesh Chand Jain (Pw.6) although named 28 persons as assailants he attributed specific overt act to appellants Mahesh, Darab Singh, Dhuji, Bachchu Singh, Bhulli and Dinesh. According to Mahesh Chand Jain, while he was coming from well after easing himself he saw 28 assailants armed with Pharsa, Dhariya, sword and Lathis. They surrounded Tara Chand Jain and thereafter Mahesh inflicted blow with Pharsa on his head, Darab Singh gave Pharsa blow on the shoulder, Dhuji and Bachchu Singh inflicted blows with Pharsa on the legs, Bhulli gave blow with sword on the legs, whereas Dinesh inflicted Dharia blow on the legs. Testimony of Mahesh Chand Jain gets corroboration from the evidence of Nevo Singh Jat (Pw.2), Badan Singh (Pw.3), Shiv Charan (Pw.4) and Kamar Singh (Pw.5). 9. Learned counsel for the appellants canvassed that as per post mortem report since semi digested food was found in the small intestines of the deceased the incident could not have happened in the morning at 6.30 AM. Refuting the contention learned Public Prosecutor urged that liquid food material was found in the stomach of deceased, therefore the possibility cannot be ruled out that before proceeding to the house of Bane Singh deceased had consumed some liquid and food. Learned counsel for the appellants next contended that the alleged eye witnesses examined by the prosecution are chance witnesses and had interest in the success of prosecution, hence their testimony ought to have been discarded in toto. 10. We find ourselves unable to accept this submission. It is well settled that though the chance witness is not necessarily a false witness, is proverbially rash to act upon such evidence. In the case of a chance witness, if that witness gives sufficient reasons for his presence, that evidence can be accepted. 11. Even truthful version of occurrence given by kith and kin of the deceased may be relied upon as was held in Krishna Ram Vs. State of Rajasthan (AIR 1993 SC 1386) by the Hon'ble Supreme Court:- (Para 4) “We have gone through the evidence of the eye witnesses. No doubt Pws 1,2,3 and 6 are kith and kin of the deceased but they have given a truthful version of the whole occurrence. Even Ex.P-1 all the material particulars are mentioned particularly the fact that the deceased was dragged to the house of A-1 and that there he was tied and beaten. As noted already even A-1 admitted that the deceased was tied in his house but added that because of the scuffle between PW.6 and the deceased, latter was tied. Immediately after registering the crime, the SHO went to the house of A-1 and found the deceased tied and he was having bleeding injuries. Thus the time, place of occurrence and the cause of death are established beyond doubt. So far as the presence and participation of the appellants are concerned there are statements of the eye-witnesses consistently to this effect. Both the Courts below have given cogent and convincing reasons for accepting the evidence of the eye witnesses. The evidence adduced in defence is not at all material and the courts below have rightly rejected the same. The trial court acquitted Keshra Ram A-6 giving the benefit of doubt. In our view the same in any manner does not affect the evidence of eye witnesses who are the most natural witnesses. We see absolutely no merits in these appeals. The appeals are dismissed accordingly.” 12. In Ram Lakhan Vs. State of UP (AIR 1996 SC 3429) held that the evidence of close relatives of deceased is not liable to be rejected on ground of interested witnesses. What is necessary is that Court should scrutinize evidence of such witness carefully. 13. In Baitullah Vs. State of UP (AIR 1997 SC 3946) Hon'ble Supreme Court held that evidence of interested witness cannot be discarded merely on ground that he is interested. It is normally expected that witness would not leave out real culprits and rope in innocent persons. 14. In Tapubha Bhagwanji Vs. State of Gujarat (AIR 2002 SC 2794) the Apex Court held as under:- (Para 12) “The witnesses examined on behalf of the prosecution are witnesses who in normal course of event are expected to know about the incident. Their deposition do not reveal any good reason for rejecting their evidence as untrustworthy or unreliable. Nothing has been brought on record either in cross examination of the witnesses concerned or in any other evidence to show any good reason as to why they should falsely implicate the accused in the case. Thus rejection of their testimony on ground that they are interested witnesses being in relation of deceased, not proper.” (Emphasis supplied) 15. In Angnoo Vs. State of UP (AIR 1971 SC 296) the Apex court held that the fact of relationship would add to value of his evidence because he would be interested in getting the real culprit, rather than innocent persons, punished. 16. In Bolineedi Venkataramaiah Vs. State of Andhra Pradesh (AIR 1994 SC 76) the Apex Court considered the case where there was bitter enmity between prosecution party and accused party, group of persons chased deceased and inflicted injuries. The presence of witnesses at place of occurrence was not found doubtful. It was held that being interested witnesses their evidence was subjected to greater scrutiny. Specific overt acts attributed to accused. Corroboration of overt acts by medical and circumstantial evidence was found. Only those accused to whom specific overt acts had been attributed consistently by all witnesses were convicted. The plea that some of the accused were acquitted, the same evidence cannot be accepted against other accused, was not found tenable. 17. In Suraj Pal Vs. State of UP (AIR 1994 SC 748) the Apex court found that the medical evidence fully establish the injury to eye witnesses, eye witnesses gave consistent version and it was held that their evidence cannot be discarded on ground that they were interested witnesses or that co- accused was acquitted on self-same evidence or that there were minor variations. 18. In Kartik Malhar Vs. State of Bihar (1995) 8 JT (SC) 425, the Apex Court held that “we may also observe that the ground that the witness being a close relative and consequently being partisan witness should not be relied upon, has no substance. This theory was repelled by this court as early as in Dalip Singh's case (AIR 1953 SC 364) in which this court expressed its surprise over the impression which prevailed in the minds of the members of the bar that relatives were not independent witness Speaking through VIVIAN BOSE J., the Court observed para 25 of AIR 1953 SC 364): “We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the facts of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur.” 19. In Thangaiya Vs. State of Tamil Nadu (2005 Cri.L.J. 684) the Apex Court indicated as under:- “In a murder trial by describing the independent witnesses as `chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere `chance witnesses'. The expression `chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. In instant case, the plea of the accused that PW-3 was chance witness' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. Therefore, there is no substance in the plea that evidence of independent witness which is clear and cogent is to be discarded.” 20. It is no doubt true that there are infirmities in the prosecution case but this fact itself does not falsify the entire prosecution story. The evidence of prosecution is consistent qua appellants Mahesh, Darab Singh, Bhulli, Dhuji, Bachchu Singh and Dinesh Chand. Specific over acts have been attributed consistently to them. The ocular version narrated by these witnesses gets corroboration from the post mortem report of the deceased. 21. Having gone through the testimony of Vidya Devi (Pw.10) we find that on the day of incident she was alone in the house and her husband was away. Possibly Darab Singh Sarpanch and his followers did not relish the visit of Tara Chand Jain to the house of Vidya Devi and when Tara Chand was returning back from the house of Vidya Devi, Darab Singh and his colleagues who were assembled in Panchayat Bhawan, belaboured Tara Chand and inflicted injuries on his person. Rajendra Singh Gogawat (Pw.16), who initially investigated the case reluctantly accepted the report at 1.30 PM. Rakesh Kumar Jain (Pw.1) deposed that Rajendra Singh refused to accept the report and on the intervention of Sub Divisional Officer the report could be lodged. The Investigating Officer was changed and another IO viz.Bhawani Singh (Pw.18) was handed over the investigation. Under these circumstances possibility of over implication of the accused cannot be ruled out. There is no positive evidence that they had shared common object with co-accused Mahesh, Darab Singh, Bhulli, Dinesh Chand and Bachchu singh and it will be highly unsafe to connect them with the aid of section 149 IPC and they are entitled to benefit of doubt. 22. In view of discussion made herein above, we dispose of the instant appeals in the following terms:- (i) We find appellants Mahesh, Darab Singh, Dhuji, Bhulli, Dinesh Chand and Bachchu Singh guilty of offences for which they were charged and upheld the finding of the learned trial Judge qua these appellants. We dismiss their appeals being devoid of merit. Their bail bonds stand cancelled and they shall be taken in custody forthwith. (ii) We allow appeals of Lachchi Ram @ Laxman, Ishwar Singh, Paras, Gudda @ Surendra, Data Ram, Lala Ram, Karan Singh, Binda @ Arvind, Nazim, Ravi @ Ravindra, Raghuveer Singh, Man Singh, Mukesh Kumar, Rajesh Kumar, Upendra Singh and Manoj Kumar and acquit them of all offences for which they were charged. They are on bail, they need not surrender and their bail bonds stand discharged. (iii) Since appellant Chandan Singh died during trial, his appeal stands abated. (iv) Impugned judgments of learned trial Judge stand modified as indicated herein above. (Mahesh Chandra Sharma),J.(Shiv Kumar Sharma)J. arn/