IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Padam Singh Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.285/2008) 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: July 02, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Biri Singh ] for the appellant. Mr. Kamlendra Sihag] Mr. Ashvini Kumar Sharma, Public Prosecutor for the State. 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 under sections 302/149 and 148 IPC by learned Additional Sessions Judge Hindaun City vide judgment dated March 27, 2001. 2. Remaining ten accused were separately tried in Sessions case No.221/2001 (63/2000). Learned Additional Sessions Judge Hindaun City. But since the appellant Padam Singh was not present on July 31, 2007 before the trial court the sentence could not be awarded to him. Appellant Padam Singh appeared before the trial court on February 4, 2008 and he was convicted and sentenced as under:- U/s.302/149 IPC: To suffer imprisonment for life and fine of Rs.1000/-, in default to further suffer imprisonment for six months. U/s.148 IPC: 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. 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 appellant 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 on the other hand supported the impugned finding and urged that the appellant was 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). 10. DB Criminal Appeal No.213/2001 and DB Criminal Appeal No.1528/2007 were decided by this court on January 8, 2008. This court considered the evidence of star witness Mahesh Chand Jain (Pw.6) and found that although he named 28 persons as assailants but he attributed specific overt act only to Mahesh, Darab Singh, Dhuji, Bachchu Singh, Bhulli and Dinesh. We, therefore, convicted and sentenced the appellants Mahesh, Darab Singh, Dhuji, Bhulli, Dinesh Chand and Bachchu Singh and acquitted other appellants 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. 11. The case of appellant Padam Singh is not distinguishable with that of co-accused Lachchi Ram @ Laxman and others and he is entitled to be acquitted. 12. For these reasons, we allow the appeal of appellant Padam Singh and acquit him of all the offences for which he was charged. Appellant Padam Singh, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. The impugned judgment of learned trial court stands modified as indicated above. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/