1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State of Rajasthan Vs. Omprakash (1) D.B.CRIMINAL APPEAL NO.42/1984 Ladu Ram Vs. State of Rajasthan (2) D.B.CRIMINAL APPEAL NO.264/1983 against the judgment dt.27.7.83 passed by the Sessions Judge, Sri Ganganagar, in Sessions Case No.91/82. Date of Judgment: 6th August, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.K.R.Bishnoi, Public Prosecutor. Mr.S.G.Ojha ) Mr.Ashok Upadhyaya) for accused. Mr. M.K.Garg, for complainant. BY THE COURT : (PER THANVI J.) 1. These are the two appeals against the judgment of learned Sessions Judge, Sri Ganganagar dt.27.7.83, whereby he convicted accused Ladu Ram of the offence u/s.302 IPC and sentenced him to undergo life 2 imprisonment alongwith a fine of Rs.1000/- and in default, to further undergo six months' R.I. and at the same time, acquitted accused Omprakash of the offence u/s.302. The State has filed appeal against the judgment of acquittal of accused respondent Omprakash and accused appellant Ladu Ram has filed appeal against his conviction, therefore, both are being disposed-of by this common judgment, as they relate to the same incident. 2. Facts leading to these appeals are that on 26.8.82, oral FIR, Ex.P.2, was lodged at 9.15 PM at Police Station Kotwali, Ganganagar by Omprakash son of Ram Rakh by caste Swamy r/o Gurunanak Basti, Sri Ganganagar in which it was stated that at about 8.30 PM, when he went to old Sabji Mandi, he saw some milkmen including brother-in-law Jagdish and nephew Kishanlal standing there. Ramchandra and Birja Jat were also present there. In the meantime, the accused Ladu Ram came and started fighting with his brother in law and in exchange of hot words, accused Ladu Ram caught hold the neck of Jagdish and told his brother Raju to bring more persons from canteen, as Jagdish will not mend his attitude. Thereupon, Raju went away 3 and he alongwith other witnesses and deceased Jagdish proceeded towards Hanumangarh road on their bicycles. At about 9.15 PM, when they reached near the house of Dr.Ludhianawala, the accused persons came from the back side & pushed his brother in law, whereby he fell down. Accused Omprakash caught hold of Jagdish and accused Ladu Ram inflicted knife injury on the back of deceased Jagdish and fled away by taking out knife from the person of Jagdish. On account of the said injury, Jagdish died on the spot. The police on the basis of this information, registered a case u/ss.302 r/w 34 IPC and commenced investigation. The post mortem of the dead body of Jagdish was conducted. The site was inspected. The weapon of offence i.e. knife was recovered at the instance of accused Ladu Ram and sent for serological examination. After completing investigation, the police filed chargehseet against both the accused in the court of learned Addl.Judicial Magistrate, Ganganagar u/ss.302 r/w 34 IPC, who committed the case to the Court of Sessions. After hearing the arguments on charge, the learned Sessions Judge framed charges u/s.302 IPC against accused Ladu Ram and u/s.302/34 and 302/114 IPC against accused Omprakash. Both the accused pleaded not guilty and 4 claimed trial. The prosecution examined 10 witnesses. The statements of the accused were recorded u/s.313 CrPC. They led no defence. After hearing the arguments, the learned Sessions Judge acquitted accused Omprakash but convicted & sentenced the accused Ladu Ram as above, against which, accused Ladu Ram has filed the appeal and State has filed appeal against acquittal of accused Omprakash. 3. We have heard learned Public Prosecutor as well as learned counsel for the accused. 4. It has been argued by the learned Public Prosecutor that accused Ladu Ram and Omprakash both were jointly responsible for the act of causing death of deceased Jagdish, who was a milkman alongwith the accused and on account of this, both started fighting because of dispute in milk selling. According to the learned Public Prosecutor, there was a common intention on the part of the accused Omprakash as well in inflicting injury by accused Ladu Ram with the weapon like knife of the size of five inches, which according to the doctor was sufficient in the ordinary course of nature to cause death but the learned trial 5 Court has wrongly acquitted the accused Omprakash. However, the learned Public Prosecutor has supported the judgment of conviction so far as accused Ladu Ram is concerned. 5. Per contra, learned counsel for the accused has vehemently argued that it is a fabricated case of inflicting injury with the help of knife. According to him, the knife was recovered vide Ex.P.11 on 29.8.82 by SHO Bhanwarlal but it reached in the Malkhana on 27.8.82 i.e. two days prior to the recovery. The Malkhana Incharge Sheopat Ram, PW 6 has clearly stated in his statement that Malkhana of the present case i.e. knife in a sealed condition was received in the Malkhana on 27.8.82 and was deposited in the Malkhana on 28.8.82. According to the learned counsel, the learned trial Court has disbelieved the statement of Sheopat Ram, PW 6 on the ground that this witness has not kept the register properly. According to the learned counsel, the learned trial Court, on one hand, has disbelieved the eye witnesses viz; Omprakash PW 2, Ramchandra PW 3 and Kishanlal PW 4 but on the other hand, merely on the basis of recovery, the conviction has been recorded, which is of no consequence. 6 6. We have re-appreciated the evidence in the light of the submissions made by the learned Public Prosecutor and learned counsel for the accused. 7. The recovery of weapon used in commission of the offence is undoubtedly a corroborative piece of evidence and can be used as a strong circumstance to connect the accused with the commission of crime but such recovery must be trustworthy. However, if there is direct evidence of the witnesses who have seen the crime, then mere recovery is of no consequence, it can be used only as a corroborative evidence. In the present case, the learned trial Judge, on one hand, has not placed reliance on the testimony of eye witnesses viz; Omprakash PW 2, Ramchandra PW 3 and Kishanlal PW 4 son of deceased Jagdish in paras 38, 39 and 40 of his judgment but on the other hand, by disbelieving the testimony of Malkhana Incharge Sheopat Ram, PW 6 and relying upon the testimony of Bhanwarlal, SHO, PW 10, he convicted accused Ladu Ram u/s.302 IPC on the basis of recovery of knife, said to have been made vide Ex.P.11. In our view, this approach of the learned Sessions Judge is contrary to the established principles 7 of Criminal Jurisprudence. When the eye witnesses are not believed and conviction is based on the recovery of such a weapon, which has been deposited in the Malkhana of the concerned Police Station two days prior to its recovery, to base any conviction upon such recovery cannot inspire confidence and it can be termed as a fake recovery. Learned trial Judge has rightly disbelieved the evidence of three eye witnesses because Omprakash, PW 2, who is brother in law of deceased Jagdish posed himself as an eye witness and stated in the cross examination at para 13 that when he saw from the back side, deceased Jagdish was falling down of the bicycle, whereas in examination in chief, he stated that he himself saw the accused Omprakash, who caught hold of deceased Jagdish and accused Ladu Ram inflicted knife blow. Ramchandra, PW 3 has said nothing about accused Omprakash but deposed that accused Ladu inflicted knife blow on deceased Jagdish but in the cross examination, he said that he did not see collusion of the bicycle of the deceased Jagdish and that of the accused and he turned back on hearing the noise of fall of bicycle of Jagdish. Likewise Kishanlal son of deceased Jagdish has said that on the spot, there were 20-30 persons, but none of them has been examined by the 8 police. He has also stated in para 8 of the cross examination that with his eyes, he did not see anyone hitting bicycle of his father, though he has named both Omprakash and Ladu Ram as the main culprits. From the statements of these three eye witnesses, which are not only un-corroborative but also contradictory, the learned trial Court has rightly disbelieved their testimony. 8. The finding of the learned trial Court with regard to reliability of recovery of knife is totally based on conjectures. The knife has been recovered by Bhanwarlal, PW 10 on 29.8.82 but Sheopat Ram, who is Malkhana Incharge, PW 6 has stated that the knife was deposited at the Police Station on 27.8.82 and entry to this effect was made in the Malkhana Register on 28.8.82. According to this Sheopat Ram, PW 6, the knife was brought in a sealed condition by one Richhpal Singh, Sub Inspector. This Richhpal Singh has not been produced by the prosecution and the testimony of Sheopat Ram, PW 6 and of Bhanwarlal, PW 10 is uncorroborative with regard to the date of depositing the Malkhana article and recovery of Malkhana i.e. knife. The learned Sessions Judge has totally ignored 9 this important lapse on the part of the prosecution and based the conviction on the sole testimony of such fake recovery, especially when the statements of the eye witnesses are uncorroborative and contradictory. 9. In a Criminal trial, basing conviction on such untrustworthy & uncorroborative evidence, cannot be termed as sound appreciation of law & facts. Learned trial Judge should not have merely convicted the accused by relying on the evidence of Malkhana Incharge viz; Sheopat Ram, PW 6 and ought to have treated such evidence as unreliable. In Criminal trial, it is the duty of the Court to rely on such evidence, which leads to no other conclusion except the guilt of the accused and if there is any discrepancy or infirmity in the prosecution case, the benefit always goes to the accused. The general principle of the Criminal Jurisprudence is that the accused is presumed to be innocent until it is proved beyond reasonable doubt. The present case is not only based on doubt but can be termed as suffering from numerous infirmities including the fake recovery, for which the accused are entitled to be benefitted. 10 10. In view of the aforesaid, we are unable to subscribe to the view expressed by the learned Sessions Judge with regard to guilt of the accused appellant Ladu Ram. 11. Consequently, we dismiss the State Appeal filed against acquittal of accused Omprakash and allow the appeal filed by accused appellant Ladu Ram by setting aside the judgment of the learned Sessions Judge, Sri Ganganagar dt.27.7.83 convicting him of the offence u/s.302 IPC and sentencing to undergo life imprisonment alongwith a fine of Rs.1000/- and in default, to further undergo six months' R.I. and acquit him of the said charge. He is on bail, his bail bonds stand cancelled. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS