1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Manroop and others. vs. State of Rajasthan. D.B.CRIMINAL APPEAL NO.310/1989 UNDER SECTION 374 CrPC AGAINST THE JUDGMENT AND ORDER DATED 25.7.1989 PASSED BY SHRI SUALAL SIRWA, ADDITIONAL SESSIONS JUDGE, BHILWARA IN SESSIONS CASE NO.40/1987. DATE OF JUDGMENT ::: 27 February, 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN, J. Mr.Sandeep Mehta a/w Mr.Vineet Jain, for appellants. Mr.VR Mehta, Public Prosecutor. - - - - - BY THE COURT (PER HON'BLE MR.PRAKASH TATIA, J.): REPORTABLE Heard learned counsel for the parties. This appeal has been preferred to challenge the 2 judgment and order dated 25.7.1989 passed by learned Additional Sessions Judge, Bhilwara in Sessions Case No.40/1987 by which the learned trial court convicted all the appellants as under :- Offence Punishment Section 302 IPC To undergo imprisonment for life with r/w 149 IPC a fine of Rs.50/- and in default to further undergo 15 days imprisonment. Section 148 IPC To undergo 3 years RI with a fine of Rs.50/- and in default to further undergo 15 days imprisonment. Section 324 IPC To undergo 2 years RI with a fine of r/w 149 IPC Rs.50/- and in default to further undergo 15 days imprisonment. Section 323 IPC To undergo 1 years RI with a fine of r/w 149 IPC Rs.50/- and in default to further undergo 15 days imprisonment. As per the prosecution case, a written report Ex.P/1 was submitted by one Hukma Ram PW1 in Police Station Kareda. This report was signed by PW2 Kalu Ram, Sarpanch of the Village. As per the FIR dated 2.4.1987 (Ex.P/1), PW2 Kalu Ram, Sarpanch of the Village, when returned to his Village at 8:00 PM from Camp Gyan Garh and came to know that Lachu and his family members were assaulted by accused Nanda, Balu and 8-10 other 3 persons. He immediately went to the house of Lachu and found Lachu, his wife Sarju and his son Balu outside the room in injured condition and they had numerous injuries on their body. In the report Ex.P/1, some injuries have also been mentioned which were inflicted on Lachu and he was alive at that time but died after 1 hour. Injured Balu and Sarju were unconscious at that time but subsequently, they came to senses and on asking by the informant Kalu Ram, he was told that they were returning from the field with grass and fire wood and when they reached near the gate of Bhola Gujar, then Nanda with knife, Mangu with an axe and Gordhan, Shrawan, Balu, Hardeo, Manroop and Jalu came with lathies and after shouting, they started beating them. After beating Smt. Sarju and Balu, the assailants ran towards the house of Lachu saying that today Lachu is to be finished. At that time, Lachu was coming with his bullocks and the assailants started attack on Lachu. Raji and Shiva, daughter and son of Lachu respectively, came out of Guwadi and saw all the 8 accused assaulting Lachu and heard accused appellants shouting. Out of fear, both Raji and Shiva ran away. Meanwhile, witnesses Mangu and Harji came on the seen and brought all the three injured to their house. The accused persons also took away silver and gold ornaments from the person of Sarju. On the above report, a case under Sections 302, 4 147, 148, 149, 379 and 323 IPC was registered. During investigation, knife, axe and lathies were recovered after arrest of the appellants. The bodies of Lachu and Balu were taken for post mortem and their post mortem reports are Ex.P/20 and Ex.P/21 respectively. As per the post mortem report Ex.P/20, Lachu received in all 9 injuries and all caused by blunt weapons. Balu's body had 27 injuries out of which injury no.3, 19, 20 and 23 were incised wounds and rest were caused by the blunt weapons. Smt. Sarju in all had 7 injuries and as per her injury report Ex.P/22, injury no.1 and 4 were caused by sharp edged weapon and rest by blunt weapons. Appellant accused Mangu also received injuries and as per his injury report Ex.P/23, he had 2 injuries and both were incised wounds. After investigation, the police filed challan against the appellants and the Sessions Court framed charges against the accused appellants under Sections 148, 302, 302/149, 324, 323 and 396 IPC. The appellants denied the charges and sought trial. At the trial, the prosecution produced PW1 Hukma, PW2 Kalu Singh, PW3 Balu, PW4 Gopi, PW5 Shiva, PW6 Mst. Raji, PW7 Mst.Sarju, PW8 Gopi, PW9 Harji, PW10 Dr.Satish Kumar, PW11 Hansu, PW12 Gopi, PW13 Anand Wardhan, PW14 Shanti Lal, PW15 Abhay Singh, PW16 Ishwar Lal and PW17 Gopal Singh. 5 The statements of accused appellants were recorded under Section 313 CrPC and they produce DW1 Mst. Kamla in defence. As per the prosecution case, Hira s/o Lachu wanted to keep Mst. Kamla D/o accused Mangu as her wife but the family members of Mangu were not agreeable to it because of some caste reasons as both the families were of different Gotras. There was some litigation also pending between two families and, therefore, the accused persons killed Lachu and Balu and injured Smt. Sarju. The defence version was that at the time of incident, deceased Balu tried to drag Mst. Kamla upon which Mst. Kamla shouted, then accused Mangu ran to Balu and caught Balu. At this time, Lachu came with an axe to hit Mangu and in this way, the total incident took place. The trial court held that in view of the oral as well as documentary evidence, it is fully proved that DW1 Kamla is sister of accused Mangu and there was dispute in relation to her Nata marriage and because of that rivalry, on 1.4.1987, the abovenamed accused with common object of eliminating Balu and Lachu formed an unlawful assembly and to fulfill the common object, they inflicted the injuries on the person of Balu, Lachu and Smt. Sarju wherein Balu and Lachu died and Smt. Sarju suffered injuries. For this purpose, they 6 used sharp edged weapons as well as blunt weapons. The trial court also held that because of fear of accused, Hira who wanted to keep Mst. Kamla ran away and in the family of Hira, there were only Lachu and Balu to whom the aggressors have eliminated. They also inflicted simple and grave injuries and, therefore, the trial court, by the impugned judgment held the appellants guilty of committing offence under Sections 302/149, 148, 323/149 and 324/149IPC and sentenced them as above. However, all the accused have been acquitted from the charge under Section 396 IPC. This appeal was heard on 9.1.1992 and the matter was kept for further arguments on 13.1.1992. On that day, the Division Bench of this Court was of the view that the prosecution witnesses PW5 Shiva, PW6 Raju and PW7 Sarju were not confronted with their police statements when they were examined before the trial court. In their police statements, they definitely said that lathies were used in inflicting the injuries to deceased Lachu and Balu. In view of the above, this Court held that it is necessary to re-examine these prosecution witnesses. By order dated 13.1.1992 itself, the witnesses were ordered to be summoned and ultimately, their statements were recorded in High Court on 19.10.1992. 7 It will be worthwhile to recapitulate here that all the eye witnesses PW5 Shiva, PW6 Raju and PW7 Sarju in their statements before the trial court clearly stated that all the accused inflicted injuries by sharp edged weapons and they did not state that any injury was inflicted by any of the accused appellants by any blunt object like lathi or from reverse side of axe or sharp weapon. The Hon'ble Supreme Court in the case of Hallu and others vs. State of Madhya Pradesh reported in AIR 1974 SC 1936 held that normally when a witness says that an axe or a spear is used, there is no warrant of supposing that what the witness means is that the blunt side of the weapon was used. The Hon'ble Supreme Court further held that if that be the implication, it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon. All these three witnesses PW5 Shiva, PW6 Raju and PW7 Smt. Sarju in their statements before this Court very specifically stated that all the accused were armed with axes and knifes only. None of the accused had lathi with them. They even denied their earlier statement recorded by the police (Ex.D/1, Ex.D/2 and Ex.P/3) under Section 161 CrPC during investigation with respect to the fact of inflicting injuries by the accused by any blunt weapon. Witnesses' statements were 8 only to the effect that all accused inflicted injuries by sharp weapons. As per medical evidence, Lachu (deceased) the injuries on the body of Lachu which are 9 in number, all are by blunt weapons/object ; Balu (deceased) injuries on the body of Balu which are 27 in number, only 3, 9, 20 and 23 are incised wounds but injuries are simple and out of 27, 24 injuries on the body of Balu are from blunt weapons ; and Mst.Sarju (injured) injuries on the body of Sarju which are 7 in number, out of which injury no.1 and 4 are from sharp- edged weapon which are simple in nature and rest are from blunt object. In view of the ocular evidence of PW5, PW6 and PW7, the injuries on the body of Lachu which have been shown in the post mortem report Ex.P/20, have not been proved to have been caused by any of the accused becaused deceased Lachu suffered as many as 9 injuries and as per the post mortem report, all are lacerated wounds, bruises and abrasions and caused by the blunt object only. All the alleged eye witnesses stated that all the accused had sharp edged weapons with them and they did not inflict any injury on any of the victim by 9 lathi or blunt object. All the prosecution witnesses even denied their earlier statement wherein they stated that the accused had lathies with them. At this place, it will be worthwhile to mention here that only witness PW7 Mst. Sarju in her statement recorded in the trial court on 4.7.1988, though stated, that accused Nanda in the end threw a stone on the head of Lachu and by that, Lachu's head broke down. In support of this evidence, there is no other evidence. Support to this evidence of PW7 Mst. Sarju is needed in view of the fact that her statement of inflicting injuries by all the accused persons by sharp edged weapon is found to be absolutely false. PW7 Sarju's statement that Nanda inflicted injury with knife in right hand i.e. between thumb and finger. She also stated that one injury was inflicted by Manroop by knife. She also stated that accused Manroop inflicted injury on her legs but it is not clear by which weapon, Manroop inflicted injuries on the legs of Smt. Sarju and as per her own statement, Manroop was carrying knife. This statement is not supported by medical evidence as per injury report Ex.P/22. She did not suffer injury on legs. So far as other injuries i.e. 5 injuries, which could not have been from sharp edged weapon, are concerned, how those injuries came on the body of Sarju, remained unexplained and have been proved to be not inflicted by accused appellants. When Mst. Sarju was confronted with 10 her statement recorded under Section 161 CrPC, she could not explain why she did not gave her statement to the police during investigation about role of individual accused in inflicting specific injury on the bodies of the victims and on herself and particularly, why she did not disclose the name of the person who inflicted injury on her. The improvements in the statement of Mst. Sarju is substantial and it is unsafe to rely on the statement of PW7 Mst. Sarju implicating accused Nanda and Manroop as well as other accused for inflicting the injuries on her and on other two victims. Victim Balu who suffered as many as 27 injuries, but out of 27, 24 injuries on the body of Balu are from blunt weapons and 3 injuries are from sharp-edged weapon which are on his legs. Unexplained 24 injuries on the body of Balu makes the entire case of the prosecution suspicious because of the reason that there are total 43 injuries on the body of three persons including 7 injuries on the body of injured Mst. Sarju. The death of two persons was caused by injuries suffered by the victims by blunt weapon/object. Despite death of two and injury to one person and total 43 injuries are on the bodies of above three, if the prosecution evidence try to connect accused with only 4 injuries on non-vital part of the victims when accused are 8 in number and there are incised wounds on non- 11 vital part of victim and accused did not inflict a single injury by sharp edged weapon on the body of one person who died, and could not inflict any injury on any vital part of two victims and inflicted injury on legs only, then how there could have been any common object to form an unlawful assembly to commit an offence and in this case, to eliminate any of the victim ? The credibility of eye witnesses is shattered in view of their improvements in their statements from their earlier statements as well as in view of the fact that they in their statements before this Court contradicted their own earlier statements that the accused were also carrying lathies with them. The improvements and contradictions are very material and makes the entire case of the prosecution doubtful against the accused persons. Not only in view of the evidence as brought on record by the prosecution, accused cannot be connected with the injuries and at the same time, the prosecution story is highly improbable that the 8 accused formed unlawful assembly and had common object of committing offence and they came with sharp-edged weapons and attacked the victims with the clear object to eliminate all victims or any of the victim and they had not used the sharp edged side of the weapons and if they inflicted the injuries which are by sharp weapons, 12 then, will inflict injury only on non-vital parts and will cause simple injuries only. At this juncture, it will be worthwhile to mention again here that the total injuries on the body of 3 persons are 43 and as per the prosecution, the assailants were 8 in number and if the eye witnesses are believed, then none of the accused had any blunt weapon/object with them and none of the accused inflicted injury on the body of the victim with other blunt object, then the prosecution failed to explain 38 injuries suffered by 3 persons and the most important is that the prosecution failed to establish that who inflicted the fatal injury on the body of Lachu and Balu. 8 assailants coming with the sharp edged weapon with common object will not inflict any injury on any of the vital part of the three persons cannot be believed and will inflict only 3 injuries on the body of one person Balu and 2 injuries on the body of Smt.Sarju by sharp-edged weapons and that too causing simple injuries only shows that true facts have been suppressed about the culprits and commission of offence. The eye witnesses are not supporting the medical report and the medical report of 3 injured fully contradict the prosecution version and the statements of witnesses PW5 Shiva, PW6 Raju and PW7 Sarju. PW1 Hukma, who submitted the written FIR signed by PW2 Sarpanch Kalu Singh, is only career of the FIR and 13 he only stated that he was called by Sarpanch by sending one man to call him and he was given written report Ex.P/1 for its delivery to the Police station. He stated in his cross examination that report Ex.P/1 was not written before him and he does not know what is written in this report. PW2 Kalu Singh, who was Sarpanch of the village and whose report was treated as FIR, was declared hostile. He stated that he wrote the report Ex.P/1 as he was told to do so by the teacher Sita Ram who said that some quarrel took place and, therefore, make report. However, PW2 Kalu Singh admitted his signatures on the report but he stated that he did not read the report and he merely signed the report. He also stated that he saw Lachu lying dead and there were injuries on his body. Lachu's wife was lying unconscious but no blood was coming from her body. He remained on the spot for 1 hour and at that time, nobody came to senses. He did not talk to Lachu's wife. He stated that he does not know who inflicted injuries. He denied his earlier statement recorded under Section 161 CrPC. In cross examination, the Court put a note that witness Kalu Singh is stating that the incident took place wherein all the villagers were involved but the witness is not telling the names of these villagers, obviously, who committed the crime. The FIR is not the substantive piece of evidence and it can be used to confront the 14 witness and in this case, the fact mentioned in Ex.P/1 of involvement of Nanda and Balu looses its significance in the light of evidence produced in court by prosecution as discussed above. PW9 Harji also did not support the prosecution case and was declared hostile. He denied that he saw the accused persons beating the victims. In view of the above discussions, it is clear that the prosecution evidence cannot be relied upon and appears to be false evidence with respect to the accused persons having deadly weapons with them or any weapon and failed to prove that the accused persons or any of the member of the accused with common object assembled and any of the accused has committed any offence in view of the fact that the statements of the prosecution witnesses with respect to their presence on the spot of crime are totally unreliable and, therefore, the accused appellants are entitled to be acquitted. Consequently, this appeal of the appellants is allowed, the judgment of the trial court dated 25.7.1989 is set aside and the appellants are acquitted from the charge of commission of offence under Section 302/149, 148, 324/149 and 323/149 IPC. 15 All the accused were already enlarged on bail as per the order of this Court dated 1.2.1993, therefore, their bail bonds stand cancelled. They need not to surrender. (BHANWAROO KHAN), J. (PRAKASH TATIA), J. S.Phophaliya