[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CRIMINAL APPEAL No. 775 of 2004 MOONGLA & ANR. V/S STATE Date of Judgment : 24.11.2009 P R E S E N T HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. Mr. Dhirendra Singh, for appellants Mr. K.R. Bishnoi, Public Prosecutor. JUDGMENT ----- BY THE COURT (PER HON'BLE MR. A.M. KAPADIA, J.) 1.Challenge in this appeal filed under Sec.374 of the Code of Criminal Procedure ('the Code', for short) is to the correctness of the judgment and order dated 26.07.2004 rendered in Sessions Case No.72/2003 by the learned Addl. Sessions Judge(Fast Track), Bali, District Pali, by which both the appellants viz., Moongla and Waga ('accused' for short) have been convicted for the offence under Sec.302 read with Sec.34 of the Indian Penal Code ('IPC', for short) and they have been sentenced to [2] undergo imprisonment for life with fine of Rs.1,000/- and in default of payment of fine to further undergo one year's rigorous imprisonment. 2.The prosecution case, as disclosed from the FIR and unfolded during trial is that PW10 Smt. Sami (wife of the deceased Babu) lodged a written report Ex.P/9 on 05.05.2003 at Police Station Singta Bhata stating inter- alia therein that she, her husband and her mother-in-law were living together and one day before in the morning her husband Babu had gone out for earning wages at Khera mines taking with him his lunch and was returning back home in the evening usually. At that time, she heard shouting of beating near the house of Hima Garasiya and on hearing the same she and her mother- in-law came out of house and saw her husband Babu running crying for help and after him were Waga Ram and Moongla carrying lathis in their hands. She shouted as to why they were beating her husband and by that time Waga and Moongla intercepted her husband and after that Waga gave lathi blow on the head of her husband who fell down and thereafter both the accused gave blows of lathis to him one after another and Waga told for killing her husband. She stated that due to fear [3] she and her mother-in-law did not went near them and after some time when the crying of her husband stopped and both the accused went away from spot she and her mother-in-law went near her husband who was in full of blood and had died. 3.On the aforesaid report, police registered FIR Ex.P/10 against both the accused for the offence under Section 302 read with Section 34 IPC and commenced investigation. 4. During investigation, inquest was held on the dead body of deceased Babu and thereafter the dead body was sent for autopsy. Site plan of the place of occurrence was prepared and statements of witnesses were recorded. On the basis of information supplied by the accused, Muddamal articles lathis were recovered from the accused after drawing Panchnama. The Muddamal articles were sent to FSL for chemical examination and on receipt of the FSL Report as well as Postmortem Report, as sufficient incriminating evidence was found against the accused persons, they were chargesheeted in the Court of learned Judicial Magistrate, Desuri, District Pali, who committed the case to the Court of Sessions [4] Pali as the offence punishable under Sec.302 IPC is exclusively triable by the Court of Sessions. 5.The learned Addl. Sessions Judge (Fast Track), Bali, District Pali (trial Court, for short), to whom the case was made over for trial, framed charge against the accused appellants for commission of offence punishable under Sec.302 read with Sec. 34 IPC. 6.The charge was read over and explained to the accused persons, who pleaded not guilty to the charge and claimed themselves to be innocence, therefore, they were put to trial. 7.To prove the culpability of the accused, the prosecution examined as many as 12 witnesses and relied upon their oral testimony. The prosecution also produced number of documents which were relied upon during the course of trial and therefore they were exhibited and read in evidence. 8.The trial Court, thereafter, recorded statements of accused under Sec.313 of the Code, wherein also both the accused pleaded innocence and stated that a false [5] case has been filed against them. They examined two witnesses DW1 Tarachand and DW2 Ganesh Ram in support of their case. 9.On appreciation, analysis and scrutiny of the evidence on record, trial Court came to the conclusion that homicidal death of the deceased is proved and it is also proved that the accused are the authors the injuries caused to the deceased. On the aforesaid finding, the trial Court convicted and sentenced him as stated above, which has given rise to the instant appeal by the accused. 10.While assailing the judgment of the trial Court it has been contended by Mr. Dhirendra Singh, learned counsel for the accused appellants that conviction of both the accused has been recorded on the testimony of PW10 Smt. Sami, who is the wife of deceased Babu and is also the author of the FIR so also on the testimony of PW11 Smt. Deepi, mother of deceased Babu, who are said to be the eye witnesses to the occurrence but these eye witnesses have not seen the incident and their presence at the place of occurrence is doubtful which can be gathered from their own oral testimony. Learned counsel submitted that PW10 Smt. Sami, in her cross [6] examination has admitted that she went at the place of occurrence next day on being informed by children, therefore, it is proved from her cross examination that she has not seen the incident, however, the trial Court has relied upon the version given by her in examination- in-chief. Learned counsel further submitted that similarly PW11 Smt. Deepi, the mother of deceased, has come out with the case that she was working in the field when she heard the cries of Babu. This fact is not recorded in her statement recorded under Sec.161 of the Code by the police. Moreover, she has stated that she alongwith PW10 Sami had gone to the place of occurrence and found there Babu lying dead while as per the statement of PW10 Smt. Sami when she herself had gone to the place of occurrence next day then it was not possible for PW11 Smt. Deepi to reach there earlier because she has admitted that she alongwith PW10 Smt. Sami had gone to the place of incident. Therefore, according to the learned counsel, it is apparent that they are got up witnesses and they have not seen the occurrence, however, the trial Court on surmises and conjectures has convicted the appellants. It is also submitted that the Panch witnesses to the recovery of lathis recovered on the basis of the information supplied [7] by the accused have not supported the prosecution case and moreover, PW10 Smt. Sami & PW11 Smt. Deepi have admitted that at the place of occurrence three lathis were lying there, therefore, there is reason to believe that the lathis shown to be recovered at the instance of the accused were implanted especially when the Investigating Officer PW12 Niranjan Pratap Singh has admitted that the lathis were recovered from a place which was not in conscious and exclusive possession of the accused appellants. 11.On the aforesaid premises, according to the learned counsel for the accused appellants, judgment and order of conviction and sentence is not based on correct appreciation of evidence, therefore the same deserves to be quashed and set aside and thereby allowing this appeal accused be acquitted of the offence with which they are were charged. 12.Per contra, learned Public Prosecutor has supported the judgment and order of conviction and sentence recorded against the accused appellant. 13.We have considered the submissions advanced by [8] learned counsel for the parties. We have also perused the impugned judgment and order and the record of the case. 14.So far as homicidal death of deceased Babu is concerned, there is no dispute to the fact that the deceased died a homicidal death. To prove this fact, the prosecution has examined and relied upon the oral testimony of PW7 Dr. Mahendra Dabi, who has performed the postmortem on the dead body of the deceased and issued the postmortem report Ex.P/20. 15.On conjoint reading of oral testimony of PW7 Dr. Mahendra Dabi and Postmortem Report Ex.P/20, homicidal death of deceased is proved because deceased sustained numerous injuries on his person and according to the opinion of the doctor he died of shock due to head injury. 16.Now the question which is required to be answered by us is whether the accused appellants were the authors of the injuries caused to the deceased. So far as present case is concerned, prosecution has mainly relied on the oral testimony of PW10 Smt. Sami, who is the wife of [9] deceased Babu and also the author of the FIR Ex.P/10 and also PW11 Smt. Deepi, the mother of deceased Babu, who are claiming themselves to be the eye witnesses to the occurrence. 17.PW10 Smt. Sami in her examination-in-chief has testified that she was residing with Babu at Chingata Bhata where Babu was doing labour work at Kheda mines. She stated that Babu was murdered 12 months ago, when he was coming from Kheda and to whom Waga and Moongla killed by inflicting lathi blows. Waga inflicted head injury and thereafter Moongla also inflicted head injury to Babu and they after having murdered the Babu ran away from the spot. The dead body of Babu remained whole night in the Nibor river and the police came second day of the incident and then report was submitted which is Ex.P/9. In her cross examination PW10 Smt. Sami stated that 10-12 persons used to go with her husband for labour and they used to come back together. The distance between her house and the house of Hema's is 200 meters and Nimbor (river) is situated half kilometer from her house which is not visible from her house. She [10] also stated that when the incident took place nobody came to inform her and she reached at the place of occurrence second day of the incident after having been told by the children that Bapa was murdered. She further stated that at the place of occurrence she and her mother-in-law reached second day of the incident and the report Ex.P/9 was written by Sarpanch Bhana and same was also submitted by him to the police on which she had given her thumb impression only. She stated that when she and her mother-in-law reached the place of incident, Babu had already died. She accepted that there was enmity between them and the accused and there was litigation also. She admitted that in their presence the accused had not caused injuries to Babu. She said that police had not come to her house and then stated that police had come to the place of occurrence and after coming of the police she and her mother-in-law were called at the spot and prior to that she had no information about the death of her husband. She agreed that Babu and Hema were not in terms of visiting the house of each other. She stated that police had inspected the site and completed the proceedings at the spot but what was written was not read over to her but only her thumb impression was taken. She stated that [11] on that day her statement was recorded at the police station. 18.On re-appraisal of the evidence of PW10 Smt. Sami it is seen that in her cross examination she has admitted that in her presence the accused had not caused injuries to Babu. She said that police had not come to her house and then herself stated that police had come to the place of occurrence and after coming of the police there she and her mother-in-law were called at the spot and prior to that she had no information about the death of her husband. There are material contradictions in the versions of her examination-in-chief and the cross examination and therefore it is doubtful that she is really an eye witness to the occurrence and has seen the incident. In view of her evidence, it is unsafe to record conviction against the accused persons especially when her presence itself is doubtful at the scene of occurrence. 19.Now the next witness is PW11 Smt. Deepi, who is mother of the deceased and is said to be the eye witness. She in her examination-in-chief has stated that she lived with her son Babu at Chingta Bhata who was [12] murdered 12 month ago. Babu had gone for work in the morning and after completion of the work was coming to house then in the way Waga inflicted lathi blow on the head of Babu who shouted “Douro re, Douro re, Mare re, Mare re”. At that time, she was collecting straw in the field and on hearing the shouts went at the spot where she saw Waga beating her son Babu. Moongla was also with Waga and was also beating Babu. Babu fell down and died. Babu received injury on his chest, head, teeth and other parts of the body and his teeth were broken. She and her son's wife PW 10 Smt. Sami reached at the spot. She stated that Waga and Moongla had killed the bullock of his son for which his son was demanding money in consideration thereof, therefore, they killed her son. In her cross examination, this witness PW11 Smt. Deepi stated that her son used to leave the house for labour after sunrise and 15-16 other person of the village were used to go for labour and they used to return back together. The distance between her house and the house of Hema is two pawanda and there is no house in between. In Chingta Bhata there are 40-50 houses and she heard the shouts at 6 O’ Clock when she was collecting straw. At that time the wife of Babu was [13] in the house. She stated that she reached at 6 O’ Clock at the place of occurrence where Babu was killed. The beating took place at 6 O’ Clock and the dead body of Babu remained lying there whole night. All the people of the village had gone to Sumerpur for labour work on account of draught and when she reached at the spot she found Babu lying there. She and her daughter-in-law had gone there to save her son but when she and her son’s wife reached at the spot, Babu had died. The distance between they were doing work and Babu was murdered is two pawandas. She stated that she told the police that she was doing work at the field but why the police has not recorded in her statement D-1 is not known to her. The police might not have written so. She further stated that the report of the incident was lodged by Hema and stated that the persons of neighbourhood and the villagers had not gone to the Police Station for reporting the matter. She stated that all the villagers had gone for labour therefore nobody came. She also stated that there was litigation between her family and the family of Hema and therefore her son Babu was having enmity with the accused persons families. Bhangari Wala is 2-3 pawandas away from the place of occurrence. She heard the shouts from the house of [14] Hema Grasiya’s house. She said that when she heard the shouts, she and her daughter-in-law were at house and thereafter said that she was in field. She said that she had got written in her police statement that she and her daughter-in-law were in the field but why it was so not written by the police she does not know. It was night time when the incident took place and at the place of incident 3 sticks were lying there, one Tiffin was also there. Due to night she and her daughter-in-law went to house and next day in the morning police came. Her statement was recorded at the police Station. Her statement was recorded one day after the incident, Except Hema nobody had gone to lodge the report at police station. In Chingta Bhata their agriculture land is situated two pawandas from her house and the land of Hema and her land is combined. She further stated that she got written in her police statement about breaking teeth of Deva but why the police not written is not known to her. 20.On reappraisal of the evidence of PW11 Smt. Deepi it is seen that her statement is contrary to the statement of PW10 Smt. Sami, the wife of the deceased and also contrary to the Site Plan Ex.P/3. She made improvement [15] in her statement recorded before the Court than what was stated by her in statement Ex.D/1 which was recorded by the investigation agency in which she stated that at the relevant time she was working in the field which fact does not find mention in her statement Ex.D/1. She has also made an improvement regarding her going for the rescue of his son so as to show her presence at the time of occurrence though infact she was not there at the relevant time. In the site plan Ex.P/3 her house as well as field or the place from where she saw the incident has not been mentioned but the investigating officer I.O. Nirangan Pratap Singh has made it clear in his statement that the distance between the place of incident and house of the deceased was almost 200-500 meters, wherefrom it was very difficult for her to see the incident. 21. In aforesaid view of the matter, according to us, presence of these witnesses is doubtful at the time of incident. They have made contrary versions in their examination-in-chief and the cross examinations. When PW10 has stated in her cross examination that she went to the place of occurrence next day then how this witness PW11 could reach earlier when she herself has [16] admitted that she and PW10 Smt. Sami both had gone to the place of occurrence immediately. 22.From the testimony of above referred two witnesses it is doubtful that they have seen the incident rather it is doubtful that they are eye witnesses to the occurrence and therefore in view of their contradictory versions, their oral evidence is unreliable and untrustworthy on which no reliance can be placed to base conviction of the accused persons. 23.To prove the case against the accused, the prosecution has also relied upon the recovery of the lathis on the basis of information supplied by the accused. In this connection, the prosecution has relied upon oral testimony of two witnesses i.e. PW8 Natha Ram and PW9 Durga Ram, who have turned hostile and have not supported the prosecution case. Therefore, according to us, the recovery is also not found proved. PW11 as well PW10 has admitted that at the scene of occurrence 2/3 lathis were lying there, therefore, according to us, the recovery is also not found proved. 24.Rest of the witnesses are formal witnesses, therefore, [17] their evidence is not required to be scrutinized. 25.In view of the above discussion, when the case is based on inconsistent and incredible evidence of the two so called eye witnesses and the recovery is also not proved, we are of the opinion that the trial Cout has not correctly appreciated the evidence of so called eye witnesses and the prosecution case suffers from infirmities which is not free from doubt, therefore, we are unable to persuade ourselves to accept the finding of guilt of the accused for the offence under Sec.302 read with Sec.34 of IPC recorded by trial Court against the accused. 26.Seen in the above context, the judgment and order of conviction recorded by the trial Court against the accused deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offence with which they were charged. 27.Consequently, the appeal succeeds and accordingly it is allowed. Resultantly, the impugned judgment and order of conviction and sentence recorded against accused appellants Moongla and Waga for the offence under Sec. [18] 302 IPC read with Sec. 34 IPC is quashed and set aside and the accused appellants are acquitted of the offence with which they were charged. 28.Accused appellants are in jail, they shall be released forthwith, if not required in any other case. ( DEO NARAYAN THANVI ),J. ( AM KAPADIA ),J. jpa/