1 D.B.Criminal Appeal No.179/2004 Lal Chand v. The State of Rajasthan. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T LAL CHAND V. THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO. 179/2004 against the judgment dated 22.01.2004 passed by Shri Hemant Kumar Jain, RHJS, Additional Sessions Judge (Fast Track), Sri Ganganagar in Sessions Case No.75/2002. DATE OF JUDGMENT 16-2-2010 PRESENT HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE C. M. TOTLA Mr. Ram Rakh Vyas, for Appellant (s). Mr. K.R.Bishnoi, PP, for the State. BY THE COURT: (PER HON'BLE TOTLA, J.) Challenged is appellant's conviction for the offences of Section 302and 324 each read with S.34 IPC and respective awarded sentences of life imprisonment with fine of Rs.1,000/- and a year's rigorous imprisonment. According to prosecution, on July 8th, 2002, at about 8 a.m. sarpanch Takhrawali informed by telephone to police station, Lalgarh that in village Khichrawali 9 TKW killed is wife of Lalchand Nai. SHO PW 14 making entry of this information at Roznamcha entry No.414 Ex.P43 proceeded to village, where at about 9.15 a.m. Omprakash PW 2 handed over written report Ex.P2 narrating that he is eldest of four brothers and third one is Lalchand – who having serious doubts about character and activities of wife Smt. Bhagwanti is living separately from her at Suratgarh 2 D.B.Criminal Appeal No.179/2004 Lal Chand v. The State of Rajasthan. for last 15 years and son Vedprakash also a month earlier went to Lalchand – he (information lodger) to watch his crops remain in night at his agriculture field and comes back early morning and on that day at about 5.00 A.M. when he returned home, daughter of Lalchand Ms. Suman 10 years told him that father having a lathi and brother Vedprakash having a gandasi came in the night and beating mother severely injured her who is dead – Ms. Suman also stated that when she tried to intervene, Vedprakash inflicted injuries on her hands and then both ran away. PW 2 also mentions in FIR that he informing PW 3 sarpanch called him and dead body have large injuries on head and face. On this information, SHO making his endorsement, forwarded it to P.S. for registering case where incharge registered FIR Ex.P25 No.144/02 for the offences of Sections 302, 323 and 324 read with S.34 IPC. In course of investigation, (i) SHO PW 18 examining place of occurrence, prepared memo Ex.P5 and site plan Ex.P5A (ii) got the place photographed by PW 17 – positives Exs. P34 to P42 and the negatives are Exs.P34A to P42A, (iii) at the place of occurrence and below the cot on which dead body of Smt. Bhagwanti was a wooden rule (danda) of about 3 ft. with some blood which seized and sealed packed marked as C – memo Ex.P9, (iv) examining dead body prepared memos Exs. P6 and P7, (v) sample of blood lying on floor and also of plain dust collected and sealed – packets marked as A and B – memo Ex.P8, (vi) blood stained worn clothes of deceased - blouse, choli, petticoat and under wear seized and sealed packet marked A and memo Ex.P11, (vii) blood stained clothes salwar and jumpers of PW 1 Ms. Suman the daughter of deceased taken and sealed packet marked D – memo Ex.P10, (viii) post-mortem on dead body conducted and report Ex.P22 prepared by medical officer doctor PW 11 who also examining injuries of Ms. Suman PW 1 prepared report 3 D.B.Criminal Appeal No.179/2004 Lal Chand v. The State of Rajasthan. Ex.P19, (ix) appellant arrested on 9.7.02 and on his information and at his instance from his house, lying between wooden pieces, recovered were lathi and kamij payjma having blood like stains - respective memos are Exs. P44, P45, P23 and P24- keeping packets of articles safely, the same were delivered with forwarding letter to laboratory for examination. (x) On information of Vedprakash from a house gandasi, kamij and payjama recovered and sealed. FSL report received is Ex.P76. After usual investigation and recording statements of the witnesses, charge-sheet, against appellant Lalchand presented which mentions of separate charge sheet against Vedprakash before Juvenile Court. Appellant charged for the offence that he (accompanied with Vedprakash) on 8.7.02, at about 5 a.m. or early hours, in village 9 TKW with common intention of causing death of Smt. Bhagwanti, inflicting her injuries of gandasi and lathi caused her death and also caused hurt to Suman – claimed trial. Among the prosecution witnesses PW 1, daughter of the deceased, is eye witness injured. PW 11 medical officer conducted post-mortem examination and examined injuries of PW 1. PW 2 Omprakash first informer, sarpanch PW 3 and also witnesses PWs 4, 5, 6, 8, 9 and 10 are declared hostile. PWs 7, 12 and 13 who are motbirs of recovery etc. also are declared hostile PW 17 is photographer-PWs 14, 15 and 16 police personnels pertain to registering of FIR and delivering articles at FSL whereas PW 18 SHO is investigating officer. Appellant accused explains and asserts that witness Ms. Suman PW 1 is deposing false, who did not view incident and is telling lie under coercion of his maternal uncle. Appellant further explains that he innocent is being falsely implicated. No defence evidence led. 4 D.B.Criminal Appeal No.179/2004 Lal Chand v. The State of Rajasthan. Learned Sessions Judge inferred that appellant (with other) with common intention of causing death of Smt. Bhagwanti, inflicted several injuries sufficient to cause death and thus appellant committed offence of S.302 read with S.34 IPC. Also convicted for causing injuries to PW 1 for the offence of S.324 read with S.34 IPC. Learned counsel for the appellant extensively drawing attention of court towards testimony of PW 1 and comparing it in relation to other circumstances and the description given by other witnesses thrustly submitted that statement of PW 1 cannot be given credence. . Argued that in immediate neighborhood reside real brother-in-law of deceased (brother of appellant) but in early hours, i.e. 3-4 A.M., PW 1 instead of seeking help or at least informing her uncle, per her, went to Kashiram who resides at far distance and this conduct of 9-10 years girl, cannot be probable. Vehemently submitted that no one of the neighbours or the vicinity in any way neither support prosecution nor say of any cries or beating. Learned counsel further submits that almost every material witness stated that deceased having immoral character was living life with objectionable activities. Submitted that appellant for last 15 years was residing at a far distant place – had no relations or contact whatsoever with the deceased – no quarrel or any dispute in last 15 years so – no reason to come on that day or to do any such act. Learned counsel submits that neither any motive surfaces nor can be attributed to appellant and beneficiary of such an act could have been any other but, in any case not the appellant. Submits that PW 1 a child witness, is under coercive influence of her maternal uncle and aunt. Argued that PW 1 categorically states that her father is living separately for last 15 years, whereas PW 1 herself was not more than 10 years of age and then she herself admitted in evidence as to having come with her maternal uncle 5 D.B.Criminal Appeal No.179/2004 Lal Chand v. The State of Rajasthan. and aunt. Thus, witness is tutored one. Argued that PW 1 is not corroborated by any other evidence or circumstance. Lastly submitted that even per prosecution, appellant inflicted blows of lathi and injuries of sharp weapon including fatal one are attributed to other (Vedprakash) who is acquitted by Juvenile Court then only on the basis of statement of PW 1 and without any corroboration the conviction cannot stand. Submits that application for recalling or further recording of evidence of PW 1 presented on behalf of the appellant is on record. Lastly submitted that appellant is convicted for the offence of S.302 read with S.34 IPC but no one in any prosecution is convicted for the substantive offence. Learned Public Prosecutor Submits that PW 1 is daughter of deceased and appellant who was also injured and no reason to disbelieve any part of her testimony. Argues that no reason for any witness much less for PW 1 is to tell untrue and absence of motive cannot adversely affect prosecution. Submits that looking to nature and number of injuries, intention of cause death is proved. Thoughtfully considering arguments, we have carefully gone through the evidence, the judgment assailed and record. From the evidence of Dr. Indrapal Singh PW 11 and post-mortem report Ex.P20, stands proved that Smt. Bhagwanti died in early hours of the day between 3.30 to 5.00 A.M. because of many injuries inflicted by sharp weapon on her upper part and many injuries of blunt object on other parts. Injuries resulted in several fractures at occipital and facial area. Looking to injuries, safely can be said that whoever inflicted injuries did knew of certain death because of the injuries being inflicted. Also stands proved that in early hours of the day, Ms. Suman had injuries (i) lacerated wound on forehead 2.5 cm x 0.5 cm, (ii) incised would 6 x 8 cm on palm of left hand, (iii) incised wound 8 x 0.5 cm on left palm and (liv) 6 D.B.Criminal Appeal No.179/2004 Lal Chand v. The State of Rajasthan. incised wound 6 x 8 cm on left index finger. All witnesses other than PW 1, investigating officer, police personnels, photographer and medical officer have been declared hostile by the prosecution, still it will be worthwhile to mention a little about what they say. PW 2 is real brother of appellant who lodged first information but he asserts that he did put in his thumb only because of telling of police and in presence of sarpanch. PW 2 further says that his brother the appellant for last fifteen years and because of objectionable activities of deceased was living separately, with no relations whatsoever with deceased. PW 2 further says that in morning he coming from agriculture field, observed that door of deceased's house was open so he called them and than as no one responded, went inside where Smt. Bhagwanti was lying dead. According to PW 2, he informed Shivchand who in turn informed on telephone to sarpanch and called him. PW 2 states that entire village knew about activities of the deceased and to her many persons even in night used to come. Indraj PW 3 appears to be sarpanch and per him, Shiv Chand informed him, on phone, of quarrel in houses of Nai so he reached there where Smt. Bhagwanti was lying and Suman was not there. PW 3 says that police personnels came – did needful - and memos Ex.P5 to Ex.P12 bear his signature. Shiv Chand PW 4 states that Omprakash coming to him in morning stated of some one killing Smt. Bhagwanti. Kashiram PW 6 to whom, per Suman PW 1, she went, states that Suman or any did neither come nor inform him. Hariram PW 8 says that just adjacent to the house of PW 2, is his house and he does not know of the incident. 7 D.B.Criminal Appeal No.179/2004 Lal Chand v. The State of Rajasthan. Alka PW 5 is elder sister of PW 1 says that she never received any such information from PW 1. Khem Chand PW 9 and Nand Ram PW 10 state that either Suman or any else did not tell them of any incident. Per site plan Ex.P5, house of Omprakash PW 1 is adjacent to house of Smt. Bhagwanti and just opposite to their houses are houses of PW 9, PW 8 and others. According to Suman PW 1, her two elder sisters are married and elder brother Vedprakash used to live with them but left house about 1-2 month earlier was brought back by mother but again went away a month earlier. PW 1 further says that for reasons not known to her father, the appellant is living separately for last 15 years who in every 3-4 months used to come to village to see his mother (grand- mother of witness) but not to their house. PW 1 also, per her, not used to go to grand-mother. Thus reasonably stands established is that there were no contacts or relations between appellant and the deceased for last 10-15 years. Further stands established that grand-mother of PW 1 in village and also the uncle of PW 1 witness resided in village. PW 1 deposes that she and mother were sleeping on a coat and sister Manisha (daughter of a sister) on a separate cot, she on hearing loud cries of mother, woke up and saw that father with a lathi and brother with a gandasi were beating to mother who continued beating so and as she intervened, inflicted to her by brother was injury of gandasi so she opening door, went to house of Kashiram and narrated incident. Then father (appellant) coming to house of Kashiram, soon went away with brother. PW 1 says that when she returned from house of Kashiram mother was dead so she phoned her sister Alka on No. 436463. In cross- examination, PW 1 categorically says that she has come for deposition with maternal uncle and aunt (maama-maami). PW 1 states ignorance of 8 D.B.Criminal Appeal No.179/2004 Lal Chand v. The State of Rajasthan. any time or ever beating of mother by villagers. As above, PW 1 is a child witness who per her and soon after the incident, and per her, as beating to mother continued and she also injured, went to the house of Kashi Ram. Kashi Ram is neither neighbour nor seems to be any relative and lives at a distant place. A girl of nine and half to ten years in early hours rather in night at 4.00 - 4.30 a.m. and that too, in a injured state not going to just adjacent living real uncle but to Kashiram raises many doubts. Certainly does not seem that relations between uncle Omprakash PW 2 and deceased were cordial but simultaneously is nothing to suggest enmity or like. Even if some indifferences existed than also, in normal course, and as natural spontaneous, reaction and behaviour she first would have gone to/or and informed or sought help from the uncle. Even by cries and shouts seeking help on raising alarm could have been. Further PW 1 did not go or inform to her grand-mother. This conduct and reaction of PW 1 seems highly unnatural. Further, this is also to be noted that she came for deposing with her maternal uncle and aunt and possibilities of she being tutored and other factors cannot be totally ruled out. As above, neither Kashiram, nor Omprakash or Shivchand do support any part of testimony of PW 1. Argument is advanced that appellant is found guilty only on the testimony of PW 1 whereas other (Ved Prakash) is not found guilty which disclose influence over PW 1and for other assailant (Vedprakash) who allegedly inflicted many injuries of sharp weapon (gandasi) is acquitted and for V. was also the evidence of PW 1. PW 1 specifically in her deposition says that it was only the brother who inflicted many severe injuries of sharp weapon on upper part of the deceased and that version of PW 1 remaining so, Vedprakash is not held guilty so evidence of PW 1 9 D.B.Criminal Appeal No.179/2004 Lal Chand v. The State of Rajasthan. cannot be. Looking to this fact, only on the testimony of PW 1, it is highly unsafe to hold appellant responsible. No motive for the incident has appeared. Definitely, absence of motive itself cannot adversely affect prosecution or benefit the accused but existence or otherwise of motive – may be relevant. According to evidence produced on wooden rule found lying below the cot and also on some clothes of deceased was blood of A group. On clothes of PW 1 and other kamij payjama is blood of different group which gives inference that perhaps more than one were the assailant. Conviction can be based solely on the evidence of child witness but only if it is cogent, worthy of total credence and repose belief which cannot be doubted or any reasonable basis. Evidence of child,particularly when sole is the evidence, then it is to be very carefully evaluated and adequate corroboration, if necessary, is to be looked upon. In cases of solitary child witness, conduct and behaviour soon after the incident also becomes more significant. Child witness could often be expected to give a true version of the incident but also vulnerable to be tutored or induced and influenced to tell some which not true. No part of testimony of PW 1 finds corroboration from any other evidence or established circumstance. Appellant the father of the witness was living at distant place for many years, with no contact with them. In early night hours of the day a ten year child, in injured state when mother being beaten or seriously injured not taking any assistance from very near living uncle and others, nor informs them and goes to a distant living person, leaves room for doubts. PW 2, Kashiram PW 3, PW 4 and other witnesses or any other witness do not support prosecution version. As above mentioned some other questions and aspects also are, including acquittal of other person – witness being same the PW 1. 10 D.B.Criminal Appeal No.179/2004 Lal Chand v. The State of Rajasthan. These factors taken cumulatively certainly for convicting the appellant corroboration of evidence and version of PW 1 is desired and in absence of any such, it is not safe to completely rely on it. Testimony of PW 1 is not worth that credit and inspiring confidence enough to sustain conviction of appellant. Resultantly, giving benefit of doubt, conviction of the appellant for the offence of Sections 302 and 324 each read with S.34 IPC and sentence awarded is set aside. Therefore, giving benefit of doubt, appellant is to be acquitted. Allowing the appeal, judgment dated 22.1.04 is quashed and set aside. Conviction and sentence awarded to appellant for the offence of Sections 302 and 324 each read with S.34 IPC is set aside and he is acquitted of the offences charged. The appellant be released forthwith, if not required in any other case. Accordingly, appeal is allowed. (C. M. TOTLA), J. (GOVIND MATHUR), J. scd