1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CRIMINAL APPEAL No. 278 of 2002 OM PRAKASH & ORS V/S STATE Date of Judgment : 09th April, 2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI C M TOTLA,J. Mr. BHAGAT DADHICH for Mr.MRIDUL JAIN & Mr. MK GARG, for the appellants. Mr. AR NIKUB, Public Prosecutor, for the State. BY THE COURT: (PER HON'BLE GUPTA,J.) By this appeal the accused appellants seek to challenge the judgment of the learned Additional Sessions Judge (Fast Track), Ratangarh District Churu dated 8.3.2002, convicting all the appellants for the offences under Sections 148, 341, 302, 149 and 323/149 IPC and sentencing each of them, under Section 148 with three years rigorous imprisonment, and fine of Rs.100/- in default to undergo further rigorous imprisonment for one month, under Section 341 sentencing to three months' simple imprisonment with fine of Rs.100/- in default to undergo 7 days' simple imprisonment, under Section 323/149, one year's simple imprisonment with fine of Rs.200/- in default to undergo one month's simple imprisonment and under Section 302/149 sentenced to 2 rigorous imprisonment for life with fine of Rs.1000/- in default to undergo one year's rigorous imprisonment, and also directing all substantive sentences to run concurrently. The brief facts of the case are, that at about 8.30 AM on 31.5.99, police recorded the statements of Sita Ram P.W.1 at Government Hospital, Sridungargarh, wherein Sita Ram had stated that Budha Ram son of Bhanwar Lal Harijan is his maternal uncle son, and thus is a cousin. With this it was stated that at about 12.30, last night, there was some altercation between Omprakash and Budha Ram in connection with the branch of liquor contract. Then it is stated that on that day i.e. 30.5.99 at about quarter to 7, Budha Ram Harijan resident of Momasar Bas was returning after defecating, and when Budha Ram reached near house of Raju Ram Harijan, the 7 accused persons being residents of Momasar Bas, Sridungargarh in a body came armed with Lathis, Sariya, Chosangi and Chain, and obstructed Budha Ram, and started giving beating to him. Omprakash was armed with iron Sariya, who thrust it into abdomen of Budha Ram, Rijiya @ Shravan Ram was armed with Lathi, with which he had given blow on the head of Budha Ram. Babu Lal was also armed with Lathi, who inflicted injury on the back of Budha Ram. Mala Ram was armed with Zai, with which he inflicted injuries on the back of Budha Ram. Renu Ram @ Surja Ram, Sundar @ Sundariya were also armed with Lathis, who also inflicted injuries on the head and back of Budha Ram. Mukesh was armed with Chain with which injuries were inflicted on Budha Ram. Then Budha Ram raised a hue and cry, whereupon Sanjay son of Ruga Ram 3 rushed to intervene, whereupon Mukesh inflicted injuries to Sanjay with chain, and on hearing his cries also, the deponent, along with Kalu Ram and Jaikaran, and other inhabitants of the locality rushed on the spot. Thereupon the accused persons ran away. The two injured received serious injuries, therefore, the deponent and Ruga Ram brought them to hospital in a tempo, where Budha Ram died, and Sanjay being serious, has been referred to P.B.M. Hospital, Bikaner. From this statement, commission of offences under Sections 302, 147, 148, 149, 341 and 323 was disclosed, therefore, it was forwarded to the Police Station for registering a case. Accordingly, an FIR was registered being FIR No.122/99, and investigation was commenced. After completing necessary investigations, charge sheet was filed against all the accused persons. The case was then committed, and ultimately transferred to the learned trial Court. Learned trial Court framed charges for offences under Section 148, 341, 302/149 and 323/149 against each of the appellants, who obviously denied the charges. During trial the prosecution examined 12 witnesses, and tendered in evidence some 47 documents. The accused persons in their statement under Section 313 adopted a stand of denial, and stated that the witnesses are falsely deposing. It was also given out that Sanjay and Budha Ram were having dispute on some domestic issue, and it was Sanjay, who gave beating to Budha Ram, and they have been falsely implicated. No evidence was led in defence, however, the police statement of Ruga Ram was 4 tendered in evidence as Ex.D/1. Learned trial Court after so completing the trial and hearing the parties convicted and sentenced the appellants as above. Assailing the impugned judgment, it is contended that all the prosecution witnesses are close relations of the deceased, and inter-se also, and notwithstanding this, most of the witnesses have not supported the prosecution case, inasmuch as, the informant P.W.1, witnesses produced as eye-witness, being P.W.2 Raju Ram, P.W.3 Jaikaran, and P.W.4 Kalu Ram, have not supported the prosecution, and have turned hostile. Then it was submitted, that there are material contradictions appearing in the evidence of P.W.5 Ruga Ram and P.W.12, the injured Sanjay, which contradictions have the effect of each demolishing the evidence of other. Likewise, it was also submitted, that the prosecution has resorted to prevarications and has manipulated the things at every stage. Thus, the learned trial Court was in error in convicting the appellants as above. It was also sought to be contended, that none of the witnesses, who have come-forward as eye-witnesses, had at all seen the incident, inasmuch as by the time, Ruga Ram claims to have reached, Sanjay had already reached, rather according to him, Sita Ram, Raju Ram, Kalu Ram and Jaikaran had already reached when he reached the spot, and that, when this witness reached on the spot, Budha Ram was lying unconscious. It is submitted, that thus it cannot be said that he is an eye-witness of the incident. Likewise, regarding P.W.12 also it is contended, firstly that he is the son of the brother of the deceased, and he was having illicit relations with the wife of the deceased, on that 5 count there was dispute between the deceased and the witness. With this it is submitted, that as a matter of fact, it was this witness, who inflicted injuries on the deceased, and the accused persons have been falsely implicated. Secondly, it was submitted, that even if the things were to be taken on the basis of what has been purportedly deposed by this witness, still it is clear, that he has made improvements from his earlier version, inasmuch as, he claims to have gone on the site on hearing the hue and cry of the fight, while standing on his roof, but this is not so mentioned in his police statement Ex.P/39, and on being confronted, he deposed that he had so stated therein, and does not know as to why it is not so mentioned therein. Likewise in Ex.P/39 it is not mentioned that Mala Ram was inflicting injury with Zai, of course it is mentioned that Zai was with Mala Ram, who was beating to Budha Ram. Then he was also confronted with Ex.P/39, by pointing out, that it is not mentioned therein, that all the accused persons inflicted injuries with Lathis to Budha Ram, to which the witness deposed, that of course it is not so mentioned therein, but he did state so. Likewise he was also confronted with Ex.P/39 by pointing out, that it is not mentioned therein that Omprakash inflicted a piercing blow with Sariya on the witness, and to that also the witness deposed, that of course it is not so mentioned but he did depose. Then it was contended, that in cross-examination the witness has categorically admitted, that when he reached on the spot, Budha Ram was lying flat. It was also submitted, that the witness has exaggerated the things out of all proportions, inasmuch as, he has stated to have been inflicted 10 to 15 6 injuries, while according to his injury report Ex.P/32 there are only two injuries on his person. Likewise regarding deceased also he has stated that some 25-26 injuries were caused to him, while according to the post mortem report Ex.P/31, there are only 19 injuries on his person. Then he has stated that Sariya was measuring around 5 ½ feet, while as would be clear from a look at Ex.P/6, the recovery memo of Sariya, that it is only 2½ feet long. Thus it is submitted, that no reliance can be placed on his evidence either. Learned Public Prosecutor on the other hand supported the impugned judgment and submitted, that the defence is seeking to magnify some insignificance and minor contradictions here and there, out of all proportions. While on the basis of such insignificant contradictions the basic substratum of the prosecution case cannot be thrown away. We have heard learned counsel, and have considered the submissions, and have gone through the entire record very closely. A perusal of the record shows, that it is true, that the material witnesses including the informant P.W.1 Sita Ram, P.W.2 Raju Ram, P.W.3 Jaikaran and P.W.4 Kalu Ram have turned hostile, but then what is significant to note is, that Sita Ram in the examination-in-chief has clearly stated, that he had seen 6 of the accused persons at the time of incident, i.e. he did not see Mala Ram there. Then he has stated, that on the previous night 7 there was a dispute between the deceased and Omprakash, and in the morning when Budha Ram was returning after defecating he saw him just behind his house. It was also stated, that Mukesh was armed with Chain, and has attributed other weapons to other accused persons. It is after so stating that he has turned around, and stated, that he did not see actual injuries being inflicted, but had seen after the injuries had been caused. It is on this count, that the witness was declared hostile, and was confronted with the FIR, his previous statements, and various recovery memos, and other memos prepared in the investigation. It is also significant to note, that even this witness on being cross-examined by the accused persons, did not state, that P.W.12 Sanjay is having any illicit relations with the wife of deceased Budha Ram, or that it was this witness P.W.12, Sanjay, who had caused injuries to Budha Ram, and killed him. His statements were recorded on 25.3.2000, and continued to the next day. Then the statements of P.W.2 were recorded on 29.4.2000 on which date the examination-in-chief of P.W.3 Jaikaran was also recorded, and he was cross-examined on 11.5.2001, i.e. after more than a year, on that day P.W.4 was also examined. Things can better be comprehended than described, that it is during this interregnum period, that the witnesses were won over, and Jaikaran was also won over also during this period of one year. It may also be noticed, that from 29.4.2000 the accused persons had been getting the case adjourned. The witness did not turn up on 1.6.2000. Then he was summoned by bailable warrant. Then on 25.8.2000 other two witnesses Ruga Ram and Sanjay were present, on account of strike of lawyers their statements 8 could not be recorded. Then on still next day being 26.8.2000 also adjournment was sought on behalf of the accused persons, and P.W.3 was summoned by bailable warrant. Then on 17.10.2000 again witnesses Ruga Ram and Sanjay were present, but again adjournment was sought on behalf of the accused persons. Then some time Presiding Officer was not there, and it is in this sequence that on 11.5.2001, the statements were completed. This does clearly show, that the accused were trying hard to win over the witnesses and in that process, even the witnesses, who appeared in the Court on good number of hearings, were also not allowed to be examined. In such circumstances, in our view, nothing turns on the fact, that the first four witnesses have not supported the prosecution case. Then evidence of the two important eye- witnesses, being P.W.5 Ruga Ram and P.W.12 Sanjay is very much there on record, and they have fully supported the prosecution case. According to P.W.5 the deceased was returning after defecating, and when he reached near the Bheruji temple, 6 named accused persons and one more accused, whose name he does not remember; then said Sundariya, gave beating to the deceased. On hearing the cries he went on the spot, and found Sita Ram, Raju Ram, Kalu Ram and Jaikaran (P.W.1 to 4) were already there, and the accuseds were giving beating to the deceased. Then he has deposed, that Omprakash was armed with iron Sariya, Mala Ram was having Zai, Mukesh was having chain, and others were having Lathis. He has also stated that accused persons were also giving beating to Sanjay, who is his son. He has identified accused persons, and stated, that seeing them the accuseds went away. Then the deceased was 9 brought to hospital, where Budha Ram died, and Sanjay was sent for treatment to Bikaner. It was also stated, that the occurrence occurred on account of dispute between the deceased on one hand and accused persons on other hand, with relation to the branch of liquor shop. Then this witness has proved various memos. This time again on the request of the learned counsel for the accused, the cross- examination of this witness was reserved on 12.7.2001, however, on the very next date of hearing, being 30.8.2001, his cross-examination was completed. It appears that this witness could not be won over. In cross- examination he has stated, that Budha Ram was his step brother, being the son of his junior mother, while Sita Ram is his cousin, being his father's sister's son, while Ruga Ram is his nephew, being his sister's son, and Jaikaran is also cousin uncle. Then Kalu Ram is also a cousin, being father's sister's son, and Sanjay is the son. He has admitted, that there is no enmity with these 5 witnesses, whether of the deceased or of the witness. Then he was cross-examined on the aspect of his being employed in Sridungargarh Municipality, and to be on duty on the date of incident, to which he denied. He has also denied the suggestion, about he is being on duty and to have subsequently sent application for leave. Then he has stated, that Sita Ram, Ruga Ram, Kalu Ram and Jaikaran being the four witnesses P.W. 1 to 4 were there on the spot before he reached, and he has stated that the house of Sita Ram and Ruga Ram is at a distance of 10 Paces from the temple, while the houses of Jaikaran and Kalu Ram are bit away, as Kalu Ram's house is at a distance of 150 paces. Then he has named the persons living around the 10 temple, none of which came on the spot. Then he has stated that his house is at a distance of 1-1½ furlong, and has to come through another lane, as there is no straight passage. He has stated that after the beating, locality persons raised a cry, hearing that, he reached, at which time Budha Ram was lying unconscious, and except the 5 witnesses P.W.1, 2, 3, 4 and 5 there was nobody. Then Sita Ram and the witness took the deceased to hospital, and in that process his cloths were stained with blood, blood was lying there. Then he was cross-examined on the aspect of recovery and other memos. He was confronted with the portion E to F of Ex.D/1, which he said to be wrongly recorded and has stated, that Sanjay had reached the spot even before the occurrence of Rola. Then we come to the evidence of P.W.12 Sanjay. He is 23 years old, and has stated, that on the fateful day, in the morning, he was standing on his roof, at that time he heard a hue and cry towards the Bheruji temple. Thereupon he rushed there and found the 7 accused persons to be giving beating to Budha Ram. Omprakash was armed with Sariya, Mala Ram was having a double horn Zai, Mukesh was armed with chain and all others were armed with Lathis. Omprakash pierced the Sariya in the abdomen of Budha Ram. Then pierced the Sariya on the left arm of the witness. Budha Ram fell down, and all persons started giving beating to the witness, whereupon he fell unconscious. He has then stated, that by the time he gained conscious, he was told that Kalu Ram, Sita Ram and Ruga Ram have brought him from spot to Bikaner hospital, and was also told that Budha Ram has died on account of 11 Sariya injuries. In cross-examination he has stated, that the 5 witnesses P.W.1, 2, 3, 4, and 5 had reached on the spot after this witness, which fact was told to him by all persons after the witness got conscious. Then he has stated, that after infliction of injuries with Sariya, Chain and Zai, all accused persons inflicted injuries with Lathis, and that he was inflicted injuries after Budha Ram was inflicted injuries with Sariya, Zai etc. Then he has stated that he fell unconscious after receiving 5 injuries and also received Lathi injuries. Sariya was pierced into his left arm, and after giving beating to him all the accused persons ran away. He has stated that till he gained conscious he was not aware as to who brought Budha Ram to hospital. He has stated that Budha Ram was his uncle (कक) and other witnesses are also his uncles, however, Rugha Ram is his father. Then he has stated that from the roof, incident was not visible, only he could hear the cries. Then he was confronted with his police statement Ex.P/39, to the effect that it is not mentioned therein that he heard the cry on the roof, to which the witness deposed that he did state so, and does not know as to why it is not mentioned here. Likewise, he was also confronted about absence of injuries being caused with zai by Mala Ram, to which he replied, that it is mentioned that Mala Ram was armed with Zai and was giving beating. Then he was confronted with the Ex. 39, about absence of the statement, about all the accused persons giving beating with Lathis, to which again he stated that it is not so written, but he did state. Then he was confronted with the portion E to F of Ex.39, about his father and Sita Ram to have carried them in tempo to government 12 hospital, which he disowned. Then he has stated that the temple has the gate towards the east, and the occurrence occurred in front of the temple, there is Abadi there, and that on the place of incident one Lota was lying, and that his house is at a distance of 10 to 20 paces from the temple. He has stated that some 10 to 15 injuries were caused to him, while 25 to 26 injuries were caused to the deceased. Then he was confronted with the police statement Ex.P/39, about absence of the allegation of Omprakash having pierced Sariya in his left arm, to which again he deposed, that it is of course not there, but he did state so. Then he was suggested, that he is having illicit relations with the wife of the deceased, and that is the cause of trouble, to which he denied. He was also suggested, that on the spot there was a fight between deceased and this witness, wherein deceased died, which was also denied by him, and then he has stated that when he reached on the spot, Budha Ram was lying flat (चत पड ह आ थ). He has then deposed that Sariya was about 5½ feet long. This is the whole evidence of the two witnesses. We have gone through the appreciation of evidence made by the learned trial Court, and have also considered the comments made on their testimony by the learned counsel for the accused. It is true, that the two witnesses are related to the deceased, but then, that by itself is not a ground to discard their evidence, if they had seen the incident. Significantly Sanjay has received injuries in this very incident, and thus, to borrow the expression frequently used by Hon'ble the Supreme Court, 13 P.W.12 is “branded witness”. So far as the sequence of P.W.12 and P.W. 5 reaching on the spot is concerned, the witnesses are rustic villagers, Harijan by caste, and are labour-class persons, from whom it is too much to expect to depose a picturesque sequence of events. It is required to be comprehended that the deceased did not know that such incident would happen, so as to enable him to go even to ease himself by being accompanied by requisite number of witnesses, to testify the incident, in the event of it happening. Obviously the locality, as has come in the statement of other witnesses, is a Harijan Basti, obviously in such a small community, all inhabitants must be in close -knit relationship. From a look at site plan, Ex.P/5 it is clear, that outside the temple there is a Chowk, and it is in this Chowk that the incident occurred, obviously therefore, it is only after the commencement of the incident that a hue and cry is supposed to be raised, and it is that cry which attracted the witnesses, and since such huge number of injuries are caused, obviously the two witnesses can reasonably be believed to have reached the place of incident, and to have seen at least some part of the incident. Then if such number of accuseds are standing near the victim, duly armed with the weapons, and injureds are lying, having received fresh injuries, it can reasonably be believed, that the accused person did cause the injuries. This hypothesis is clearly applicable qua P.W.5 Ruga Ram, but so far as P.W.12 Sanjay is concerned, he did receive injuries in this very incident. In that view of the matter, it is not possible to disbelieve the two witnesses, to be the eyewitnesses. 14 The question then still survives, that these two witnesses are relatives inter-se, and are relatives of the deceased, and their evidence is required to be considered and appreciated with care and caution. From a reading of the statements of P.W.12 it is clear, that he has exaggerated the things, including number of injuries received by him, number of injuries received by the deceased, and the size of the weapon being Sariya. However, “falsus in uno falsus in omnibus” is not the principle or rule of evidence, applicable in India, and therefore, we are required to ignore the exaggeration part of the evidence, and find the reliable substratum, which may be truthful. If we consider the matter from that stand point, it does appear, that P.W.12 has made improvements from his previous statement, recorded by the police, being Ex.P/39, inasmuch as, in that statement he did not give out that all the accused persons inflicted injuries with Lathis to the deceased, nor did he state, that Sariya was pierced in his left arm. From a look at Ex.P/32, being the injury report of P.W.12, (though Ex.P/32 has been marked on two documents, the other one being a receipt of the Forensic Science Laboratory) it is clear, that he had sustained a penetrating wound on the left upper arm, in the depth of 1.5 cm. Thus, this omission is not of any consequence. Then so far as his evidence about Mala Ram causing injury with Zai is concerned, Zai is said to be a weapon having two horns of iron. Obviously if piercing injury were to be caused by Zai, the victim should have received two piercing wounds at a distance, corresponding to the 15 distance between the two horns of the Zai, while from a look at the