D.B. Criminal (Jail) Appeal No.1343/2003 (Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Bhanwar Singh alias Versus State of Rajasthan. Bhanwariya. D.B. Criminal (Jail) Appeal No.1343/2003 against the judgment and order dated 06-11-2003 passed by the Sessions Judge, Jodhpur in Sessions Case No.12/2003. Date of Judgment: May 27, 2010 PRESENT HON'BLE MR. JUSTICE GOVIND MATHUR. HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI. Mr. Vijay Vyas, for the appellant. Mr. K.R. Bishnoi, Public Prosecutor for the State. BY THE COURT (Per Hon'ble Joshi, J.) Vide impugned judgment and order dated November 06, 2003, the learned Sessions Judge, Jodhpur, in Sessions Case No. 72/2003, convicted appellant Bhanwar Sigh alias Bhanwariya by caste Rajput R/o village Newara, Police Station, Mathaniya, district Jodhpur, for the offence under Section 302 of the Indian Penal Code and awarded sentence of life imprisonment with a fine of Rs.500/- and in default of payment of fine further to undergo rigorous imprisonment for one month. The appellant- accused, by way of this jail appeal, has challenged the conviction recorded and sentence awarded by the learned Sessions Judge in the aforesaid Sessions Case. The facts of the case, in succinct, are that on 03.3.2003, at 8:14 AM, one Mahendra Singh (PW 14) lodged an FIR with the Police Station, Mathaniya, district Jodhpur, stating therein that in Gram Panchayat, Newara, about 25 to 30 years D.B. Criminal (Jail) Appeal No.1343/2003 (Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan) 2 ago, one person named as Sumera Ram came and started residing there. He was getting disablement pension from the State Government and also used to beg breads and other eatable items from the villagers. A night before lodging of the FIR, one unknown person caused death of Sumera Ram by causing injuries to him. Deceased Sumera Ram 60 years old and was dump. On the aforesaid report, a criminal case under Section 302 IPC was registered as FIR No.29 dated 10.3.2003 and the investigation ensued. During the course of investigation, the investigating officer recorded the statements of witnesses, arrested the appellant-accused and in pursuance of the information furnished by the appellant under Section 27 of the Indian Evidence Act and at the instance of the appellant, a stone was recovered; the post-mortem on the dead-body of Sumera Ram was conducted and after investigation, the police filed Challan in the Court of the learned Sessions Judge. The learned Sessions Judge, after trial, recorded the conviction of the appellant-accused under Section 302 IPC and awarded him the sentence as afore-stated. We have heard learned counsel for the appellant- accused and the learned Public Prosecutor for the State. The counsel for the appellant urges that the prosecution story hinges on threee sets of evidence against the appellant: firstly, the evidence regarding last seen of the appellant with the deceased is led by the prosecution is that of Smt. Radha, who saw appellant with deceased Sumera Ram in the Guwadi near his residence in the night; secondly is D.B. Criminal (Jail) Appeal No.1343/2003 (Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan) 3 regarding extra-judicial confession made by the appellant before PW 6 Chain Singh; and the third set of evidence is regarding recovery of Rs.37/- from the appellant in pursuance to information recorded under Section 27 of the Indian Evidence Act. According to him, so far as PW 3 Smt. Radha is concerned, she has only stated that she had seen appellant- accused Bhanwar Singh in the night before the date of occurrence of the offence while he was running near the “Patwar Bhawan.” Learned counsel for the appellant urged that PW 3 Smt. Radha is not an eye witness of the occurrence of the offence and as per her statement, she had only seen the appellant-accused while he was running near the “Patwar Bhawan.” Regarding the second set of evidence, the main contention of the learned counsel for the appellant is that as per the cross-examination of PW 6 Chain Singh, he informed to the police regarding the extra-judicial confession made by the appellant before him one day after the date of making such confession. He further contends that the conduct of this witness , viz. PW 6 Chain Singh, cannot be said to be normal in as much as that no such undue delay can be caused in normal course. Regarding the third set of evidence, the contention of the learned counsel for the appellant is that no good and sufficient motive has been established by the prosecution regarding commission of offence by the appellant and there is no D.B. Criminal (Jail) Appeal No.1343/2003 (Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan) 4 evidence on record to establish this fact that the appellant has committed this offence to grab Rs.200/- from the deceased. Per contra, the learned Public Prosecutor urged that the conviction recorded and the sentence awarded by the learned Sessions Judge is based on cogent reasons and is established on sound appreciation, scanning and evaluation of the evidence on record. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and scanned, evaluated and analysed the evidence on record. PW 3 Smt. Radha, who is said to be an witness, who claims to have seen the appellant running near the “Patwar Bhawan”, does not connect the appellant with the crime alleged to have been committed by him. She has stated only to this effect that she had seen the appellant in the cote (Gawadi), while he was running from alleged place of incident. So far as the statement of PW 6 Chain Singh is concerned, in his cross-examination, he has stated that after making the extra-judicial confession by the appellant before him, he kept mum for a day and on the second day, he informed to the police regarding the same. This statement of PW 6 Chain Singh is wholly contrary to the natural human conduct because there was no reason for him to keep mum for a day for such a heinous offence and that too when the offence was committed in his village. More so, generally the extra-judicial confession is made by an accused before a person, with whom he reposes utmost faith or expects some benefit by making such statement, D.B. Criminal (Jail) Appeal No.1343/2003 (Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan) 5 but in the instant case, there is no such evidence in this regard. Thus, the statement of PW 6 Chain Singh cannot be relied on. So far as the third set of evidence regarding grabbing of Rs.200/- by the appellant from the deceased is concerned, there is not even an iota of evidence on record regarding any such motive; on the other hand, there is evidence on record that the amount of pension being kept with some other person of the village. The learned Sessions Judge, Jodhpur, while relying on the evidence of the aforesaid two witnesses, viz. PW 3 Smt. Radha and PW 6 Chain Singh, as also the evidence of the investigating officer regarding the recovery of money received through pension remaining with some other person in the village. Apart from this, the learned Sessions Judge has not appreciated cross-examination of PW 10 Dr. Raja Ram Sharma, wherein he stated that while conducting the autopsy on the corps of the deceased, he recorded the details of the injuries on the dead-body of the deceased on a separate paper and after preparation of the post-mortem report, he destroyed that paper. This part of the conduct of PW 10 Dr. Raja Ram Sharma is very important and on the basis of this evidence, the cause of death of the deceased due to injuries caused on the head by a stone, cannot be regarded as reliable as the entire post-mortem report becomes doubtful. Resultantly, on the basis of the discussions made here-in-above, we are of the considered view that the conviction recorded and the sentence awarded by the learned Sessions D.B. Criminal (Jail) Appeal No.1343/2003 (Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan) 6 Judge, Jodhpur against the appellant-accused, vide impugned judgment and order dated 06.11.2003 passed in Sessions Case No.72/2003, cannot be sustained and deserve to be quashed and set aside. Hence, the impugned judgment and order dated November 06, 2003 passed by the learned Sessions Judge, Jodhpur in Sessions Case No. 72/2003, are set aside and appellant-accused Bhanwar Singh alias Bhanwariya S/o Rewant Singh Rajput R/o Newara, Police Station, Mathaniya, district Jodhpur, is acquitted of the charges levelled against him. He is in jail and be set at liberty if not required in any other case. (KAILASH CHANDRA JOSHI),J. (GOVIND MATHUR), J. mcs