-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: (1) S.B. CRIMINAL APPEAL NO.1259/2003 (Mangla Ram Vs. State of Rajasthan) (2) S.B. CRIMINAL APPEAL NO.1300/2003 (Lekh Ram & Anr. Vs. State of Rajasthan) (3) S.B. CRIMINAL APPEAL NO.224/2004 (State of Rajasthan Vs. Anwar Hussain & Ors.) S.B. CRIMINAL APPEALS AGAINST THE JUDGMENT DATED 25.11.2003 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE (FAST TRACK), PARBATSAR IN SESSIONS CASE NO.13/2002 (58/98). DATE OF JUDGMENT : 03rd April, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Sandeep Metha, for the appellants. Mr. O. P. Rathi, Public Prosecutor for the State. BY THE COURT : These three appeals arising out of the same judgment of the learned Additional Sessions Judge (Fast Track), Parbatsar dated 25.11.2003, relaing to FIR No.34/96, Police Station -2- Makrana in Sessions Case No.13/2002 (58/98), therefore, they are being disposed of by this common judgment. The facts leading to this appeal are that one Jitendra Singh lodged a FIR at police station Makrana on 26.1.96 at 10 p.m. that he and Dalveer Singh both went at the hotel situated near the petrol pump for taking food, where, three persons came down from the car and started beating Dalveer Singh. Out of these three one was Anwar Ahmed S/o Mia Mahmood and another was Anwar Ahmed, whose father's name he does not know and one more person gave beating with fists and legs. The persons standing in the hotel intervened and then they ran towards the police station. Meanwhile, two police constables came and they also started beating. At police station, one ASI Pratap Ram and three more constables were there. They all also gave beating to Dalveer Singh. Dalveer Singh asked for water but it was not provided to him and for 1½ hour beating continued at the police station, whereby, Dalveer Singh became unconscious. The C.I. of the police station also came out from the room and on seeing the condition of Dalveer Singh, he was taken to hospital by Mahaveer Singh, but by the time they reached to the hospital, Dalveer Singh died. Upon this report, a case for offence under Sections 341, -3- 323, 342 and 302 IPC was registered. After investigation, six persons were challaned, out of which three persons were police constables appellants. The learned trial Judge framed the charges against accused Anwar Hussain S/o Gulabnabi, Anwar Hussain S/o Hajimia and Mohd. Yusuf S/o Ramjan Kureshi for offence under Section 308, in alternative under Section 308/34, 341 and 323 IPC and the police constables appellants were charged for offence under Section 304 IPC and in alternative 304/34, 342, 323 IPC, to which they pleaded not guilty. Prosecution examined 21 witnesses. Statements of the accused were recorded under Section 313 Cr.P.C. No defence was led. After hearing the arguments, the learned trial Judge acquitted accused respondents Anwar Hussain S/o Gulabnabi, Anwar Hussain S/o Hajimia and Mohd. Yusuf S/o Ramjan Kureshi for the charges levelled against them but convicted present police constable appellants, who were posted at the police station under Section 304, 342 and 323 IPC. They were sentenced to ten years rigorous imprisonment for offence under Section 304 IPC, one year's rigorous imprisonment for offence under Section 342 IPC and six months imprisonment for offence under Section 323 IPC. All the sentences were ordered to run concurrently. The State has filed appeal against the order of acquittal of accused respondents Anwar Hussain S/o Gulabnabi, -4- Anwar Hussain S/o Hajimia and Mohd. Yusuf S/o Ramjan Kureshi, whereas the present appellants have appealed against their conviction. In the present case, it was contended by the learned counsel for the accused appellants that while acquitting the private persons, the learned trial Judge has convicted the present accused appellant, who were police personnels merely on the basis of deceased being found at the police station, specially when the entire staff of the police station was transferred after the incident. There is no legal evidence to connect these accused appellants either with direct or circumstantial link despite having came to the conclusion that there is no direct evidence including the medical evidence and the learned trial Judge has recorded the finding of conviction. Per contra, learned Public Prosecutor has supported the judgment of the learned trial court with regard to the conviction of the present accused appellants and also submitted that the State appeal be also allowed as on the same footing, the role of the private persons, who are respondents in the State appeal is equal to the present accused appellants. Having bestowed my considerations on the arguments put -5- forth and the record of the case, the most important feature of the case is that the person who lodged the FIR Ex.P-25 namely Jitendra Singh has not been produced by the prosecution, who accompanied deceased at the hotel and witnessed the crime. The witnesses who have been examined by the prosecution are Satish Kumar PW-1, Rameshwar Lal PW-2, Rajkumar PW-3, Ramdev Singh PW-5, Raniya Ram PW-10, Shanker Singh PW- 15, and Umesh Joshi PW-16 are police personnels, who participated in the investigation. Dr. Ramesh Mammani PW-4, Dr. Jagdish Bhansali PW-6 and Dr. Chandra Prakash Mathur PW- 21 are the members of the medical board, who conducted the post mortem of deceased Dalveer Singh and rest of the witnesses are said to be the persons, on whose circumstantial evidence, the conviction has been recorded. In this regard, Shahbaz Khan PW-7, who was posted as constable is not a witness of beating. He has simple said that he came out from his quarter after sleeping at about 11.30 pm. He has not seen giving beating to the deceased. Hanuman Singh PW-8, Shakur Mohd PW-9 are hostile witnesses. Constable Ratiram PW-11 has also stated that he came on the next day of the incident and heard from the Munshi that the fighting took place between the liquor man and the muslims. Ram Singh PW- 12, who was on the shop where the first incident took place has -6- stated that two persons came to his shop for taking food, thereafter, three persons came in the Maruti car and they started fighting but he did not know who were those people in the maruti car. Thereafter, they went towards the police station. Allahnoor PW-13 who sold his car RJ 14C to Yusuf, who has been acquitted by the learned trial court and his vehicle was seized by the police. Constable Chaina Ram PW-14 has stated that on the intervening night, he was sleeping and on the next day, Harji Ram said that fight took place between two sales man and the muslims. Next day, he was transferred to the police line, Nagaur. Constable Ramkaran PW-17 has also stated that in the intervening night, he was sleeping and on the next day, the incident was told to him by constable Bhanwaroo Khan and Laxman Ram. Mahaveer Singh PW-18 had of course supported the case of the prosecution and stated that on 26.1.96, one constable Shahbaz Khan came to him and told that his two salesman are unconscious at the police station, therefore, he was called by the C.I. When he went to the police station, he saw Dalveer Singh and Jitendra Singh. He was told by Jitendra Singh that on the liquor shop, three persons namely two Anwars and one Yusuf came in Maruti car and started beating and they took him to the police station where constables Pratap Ram and Lekhram gave bittings to him along with two other constables. He took Dalveer Singh to the hospital with the help of two -7- constables and Jitendra Singh. According to him, he was told by the SHO to lodge the FIR but he refused and told that he will file the report after arrival of Dilip Singh and Surendra Singh. He has proved the signature of Jitendra Singh on the FIR Ex. P.25. The evidence of this witness namely Mahaveer Singh is totally based on the testimony of Jitendra Singh. This evidence cannot be recorded as a sufficient proof to connect the accused with the commission of crime. The best witness in this regard would have been of Jitendra Singh himself, but he has not been produced for the reasons best known to the prosecution. Surendra Singh PW- 19 is the witness of the seizure memo of shawl Ex. P.21, which Dalveer Singh was wearing on the body. In this way, there is no direct or circumstantial evidence to connect the accused with the commission of crime. So far as the medical evidence is concerned, the post mortem report is Ex.P-10, in which all the three Doctors i.e. PW-4, PW-6 and PW-21 have stated that the cause of death is Asphyxia as a result of aspiration of water/liquid vomittus in semiconscious shock state which might be due to blunt blows over abdomen and head, but who gave these blows on the head and abdomen is not clear. The learned trial Judge has recorded the finding of conviction merely on the basis of surmises and conjectures. The finding of the learned trial Judge that though it is not proved that -8- the accused 4 to 6 namely the present appellants caused the death of Dalveer Singh but at the same time, he has given the finding that it is also not proved that they have not caused the death. This approach of the learned trial court is contrary to the established principle of criminal jurisprudence. The finding of the learned trial Judge that the medical board has also confused and complicated the story with regard to cause of death, therefore, it creates suspicion. Since the deceased died at the police station, therefore, the police people tried to turn the case in their favour is such a finding which is not based on any cogent reasons. Merely because the deceased died at the police station, it cannot be said that the death was due to the blows given by the persent appellants. It is the cardinal principle of circumstantial evidence as well as of common intention that there must be some premeditation of point to establish some motive. Why the three acquitted respondents in the State appeal, who were the private persons took the deceased to the police station and why the police personnels gave blows to the deceased is absent in the prosecution story. Had there been a slightest possibility of any ordinary motive, then it could have been gathered that the death might have been caused due to the blows given by the accused appellants. When the motive is absent, injuries are not sufficient in the ordinary course of nature to cause death and they are not on the vital part of the body, the possibility of natural death -9- might be due to some fear or hidden ailment cannot be ruled out. In criminal trial especially when the onus is on the prosecution to establish the guilt beyond reasonable of doubt, conviction cannot be recorded on the basis of conjectures and hypothecacy. The present case has been dealt with by the learned trial Judge in the same fashion, which cannot be upheld with any stage of imagination. Consequently, the appeals filed on behalf of accused appellants Mangla Ram S/o Tilok Ram, Lekh Ram S/o Nanu Ram and Pratap Ram S/o Sohan Lal are allowed. The conviction recorded by the learned trial court for offences under Sections 304, 342 and 323 IPC against them is set aside. Accused appellants Mangla Ram S/o Tilok Ram, Lekh Ram S/o Nanu Ram and Pratap Ram S/o Sohan Lal are acquitted for the charges levelled against them. They are on bail, their bail bonds stand cancelled. The appeal filed on behalf of the State against respondents Anwar Hussain S/o Gulabnabi, Anwar Hussain S/o Hajimia and Mohd. Yusuf S/o Ramjan Kureshi is also dismissed. (DEO NARAYAN THANVI), J. ms rathore