1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T, CRIMINAL APPEAL No. 41 of 1985 STATE V/S HAKMA RAM & ORS. Date of judgment : 8.12.2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. Mr. AR NIKUB, PP, for the appellant / petitioner Mr. DOONGAR SINGH ] for the respondents Mr. BN KALLA, ] BY THE COURT : (PER HON'BLE GUPTA,J.) This appeal filed by the State seeks to challenge the judgement of the learned Additional Sessions Judge, Sriganganagar dated 31.8.1984 passed in Sessions Case No.7/84 acquitting all five accused-persons of all the charges. Necessary facts are that on 22/23.10.1982 at about 12.45 in night, the statements of Balveer (injured) P.W.-3 were recorded by Incharge, Police Station, Sadulsahar at the hospital wherein Balveer deposed that some 18-20 days ago he had purchased one plot from Gram Panchayat, Maniyawali, which is situated adjacent to plot of Chuni Ram Nayak and he was dumping garbage at that plot for the last three days. However, Chunni Ram used to take away that garbage and mixed with his own one, on the pretext that the plot belongs to him. It is further deposed that on that day he came to learn that Chuni 2 Ram is grabbing possession over the plot by dumping bricks, whereupon in the evening at about 7.00 p.m., he alongwith his brother Balram and his father Jangeer Ram went on the plot and found Hakam S/o Mani Ram armed with 'gandasi' and Hakam's sons armed with 'kasiya', who were by caste Yadav, Chuni Ram S/o Boga Ram and Sahab Ram S/o Chuni Ram were armed with 'lathies' and one camel cart full of bricks was there, whereupon Chuni Ram and Hakam were asked to desist, by claiming the plot to be belonging to him, but Chuni Ram asserted to be in possession and started hurling abuses, whereupon good counselling was advanced that let Sarpanch come and matter would be sorted out, but all of them started giving beating, and in that process Hakam inflicted 'gandasi' blow on his head with the intention to kill and also inflicted another blow on the head of his brother Balram also with intention to kill, as a result of which, they fell down. Still the accused-persons continued to shower blow with 'kassis' and 'lathies'. He and his father raised hue and cry which attracted his nephew Anil Kumar (P.W.-4), Prabhati Ram (P.W.-2) and various other villagers, who intervened them. They carried Balram to house, called Government Vaidh Brijmohan administered first aid, then the witness and Balram were carried in a jeep to Mandi Sadulsahar, and got admitted in the hospital. On this statement, FIR Ex.-P/9 was registered. The ASI recording statement noticed injury on the head of Balveer, other injury on the wrist with clotted blood and other injuries also. After registering the FIR, usual investigations were undertaken, the injured Balveer and Anil Kumar were got medically examined. While undergoing treatment Balram died on 6.11.1982 whereupon the case was converted into one under 3 Section 302 also. After completing the investigation, charge- sheet was submitted before the learned Magistrate, who committed the case to the court of Additional Sessions Judge, Sriganganagar where the case was transferred to the learned trial court. Learned trial court framed charges against the accused-persons for the offences under Section 302, in alternative 302/149, 307/149, 148 IPC. During trial, the prosecution examined seven witnesses. In the statement under Section 313 Cr.P.C., accused Chuni Ram stated that plot in question belongs to him, and was in his possession where he was storing cow dung cakes, and had erected one kotha also, however, after sun set (अनर पड), the complainant tried to forcibly take possession whereupon he raised cries which attracted various persons and there was some beating between them. Other accused-persons adopted the stand of complete denial and ignorance. The prosecution also produced in evidence some 29 documents, while the defence produced in evidence 5 documents, though no oral evidence was led by the defence. Learned trial court framed three points of determination, narrated in para No.4 of the judgement, however, proceeded to discuss the matter collectively on all the points, and proceeded to disbelieve all three eye- witnesses being PW-2, PW-3 and PW-4, and also noticed that investigation in this case has not been conducted with any sense of responsibility, and thus proceeded to acquit all accused-persons from all the charges. Aggrieved therefrom, 4 State had filed leave to appeal, which was granted. Arguing the appeal it was contended by the learned Public Prosecutor that the judgment of the learned trial court is simply nothing less than perverse, inasmuch as, on wholly irrelevant and in single aspect much stress has been made and on that count has proceeded to even conclude that the prosecution has gone to the extent of even changing the time of incident and the sequence of events as are related to the prosecution, it was found that there has been 6½ hours lodging the report and on the basis of the number of injury found in injury report, by examining them from the stand point of mathematically number of injuries which might have been received according to the statement of eye-witnesses have proceeded to disbelieve the eye-witness and has recorded the acquittal which is wholly bad. The learned trial court was required to look into the substratum and intrinsic value of the evidence. More particularly, when as appears from the statement of Chuni Ram recorded under Section 313 Cr.P.C., happening of the incident and place of incident was not disputed rather happening of the incident was admitted then in that event, the learned trial court could at best have examined the material from the stand point about identity of persons involved, the sequence how the incident occurred, responsibility of each or any of the accused is established, and then to find out as to what offence has been made out. As against this, the learned trial court has proceeded in a single track manner and recorded acquittal which is required to be set aside. With this the learned Public Prosecutor took us 5 through the entire record and laid much stress on the statement of injured Balveer PW-3, his police statement Ex.- P/1, injury reports of Balveer and Balram being Ex.-P/4 and P/6, the post-mortem report Ex.-P/5, and various other documents and submitted that from the entire evidence if properly read and appreciated, it clearly established that all the accused-persons are guilty of the offences charged against them and are liable to be convicted. On the other hand, Shri Doongar Singh, learned counsel for the respondents No.1, 2 and 3 while supporting the judgment of the learned trial court, alike various contradictions appearing in the prosecution evidence, laid much stress on the aspect of non-production of material witnesses including Jangeer Ram, who even according to Balveer was present on the spot, apart from the fact that according to prosecution evidence, hue and cry attracted various persons from the village and by referring to the site plan Ex.-P/10 and site inspection note Ex.-P/10A submitted that there are houses in the vicinity, but none of them has been produced. It was also submitted that even according to Balram there was no previous enmity between injured and Hakam Ram. Even if there was any dispute, that was with Chuni Ram and while Chuni Ram and Saheb Ram are Nayak by caste while Hakam Ram is Yadav, and he and his sons Hari Ram and Lachhi Ram have been falsely implicated for no rhyme or reason. It was also submitted that Hakam Ram is attributed 'gandasi' which is alleged to have been recovered from Hakam Ram, but then a bare look at its recovery memo Ex.-P/24 would show that it is clearly mentioned therein that it was a rusted article, and there was no blood stain on it. Then referring to statement of PW-6 Bhan Singh, 6 the Investigating Officer, it was submitted, that he has categorically admitted that none of the weapons recovered were stained with blood, which shows that entirely a false story has been prepared. Then by referring to the statement of PW-6 in conjunction with the statement of Dr. Srinath Goyal PW-5 and Ex.-D/4, it was contended that the deceased had died after 15 days, and during this intervening period his condition had substantially improved, rather had become normal. In that view of the matter, the Investigating Officer should have recorded his statement, which he had not recorded, and while in the witness-box had advanced the excuse about doctor having not certified him to be a fit to give statement, which fact is negatived by statement of PW-5 and bed head ticket Ex.-P/4. Another submission was made to the effect that Balveer PW-3 at the end of his cross-examination had clearly admitted that he did not give out the parentage of accused-persons in the statement recorded by the police. According to the learned counsel, this cast a serious doubt about reliability of Ex.- P/1 and in any case about identity of the accused-persons and in any case creates a serious doubt about involvement of any of the accused-persons. This last submission made was that since admittedly the dispute was about title in possession over the plot, inasmuch as, Chuni Ram was claiming the plot belonging to him, and to be in his possession while prosecution party was claiming it to be belonging to them, and the occurrence is alleged to have occurred only on account of claiming possession and therefore, the common object of either side could only be projected to be procuring possession, but there could be no common object of causing death, or causing any attempt to murder of Balram or Balveer, or for that matter anybody else. That being the position the liability under 7 Section 149 cannot be attracted, resultantly, each of the accused-persons, could at best be held to be liable for the injury which might be proved by the prosecution to have been caused by him, to any of the individual victim, and if the material on record is examined from that point, any of the injuries found on the person of any of the victims, is not proved, by any of the eye-witnesses, to have been caused by any individual accused. Rather omnibus statement has been made about all the accused-persons giving beating. It was also submitted that in this background significantly in the injury report Ex.-P/4 and P/6 no injury is found, which could have been caused by 'kassi', attributed to Hari Ram and Lachhiya, thus, omnibus attributing of injuries to all accused-persons, on the face of it, cannot be believed. Then regarding Hakam Ram learned counsel tried to spell out certain contradiction in the evidence of the eye-witnesses, and alternatively submitted, that in any case only one injury has been attributed to Hakam Ram, to have been caused to the deceased, though that injury is on the head, but then he died as late as on 6.11.1982 i.e. after 15 days and according to PW-5, the condition of the victim had become normal and he had died on account of respiratory failure, which would not be, and is not shown to have been caused by injury No.1, attributed to Hakam Ram, and therefore, even this Court would believe Hakam Ram to have caused injury No.1 to Balveer and Balram, still the offence does not travel beyond Section 325 IPC, and since Hakam Ram has remained in custody for a period of more than one year and ten months i.e. from 23.10.1982 to 31.8.1984, and as appears from the statement recorded under Section 313 Cr.P.C., that at that time he was 55 years of age, with the result that by now, if alive, he would be more than 80 years 8 of age, and since more than 25 years have lapsed since passing of the impugned judgment, the interest of justice would be served if Hakam Ram is sentenced to the period of imprisonment already undergone. We have considered the submissions and have gone through the record very carefully. First of all we take up the judgment of the learned trial court. A look at the judgment shows, that the learned Judge has noticed the contention, that the prosecution has changed the time of incident, and that from the statements of eye-witnesses, read with their cross-examination, it cannot be said that either of them was there on the spot. The contention was raised that FIR has been lodged with a delay of 6½ hours even though police station is at the distance of 10 miles only for which no reasonable explanation has been given; And the learned Judge has proceeded to accept the contention, by observing, that when immediately after the incident Balram was being taken to home, any of the three eye-witnesses, or anybody else, by any means of any conveyance could go to the police station to lodge the report; then the explanation given about the priority given to the treatment of the victim was also disbelieved, on the ground that the witnesses gave priority for making arrangement of a jeep and in calling local physician (Vaidh). Then it has been considered that according to physician PW-1, Anil Kumar came to his house at about 9.00 in night, while his house is at the distance of 1/2 murabba, where according to the learned Judge, Anil Kumar could reach, at the most within 10 to 15 minutes, thus, it is not clear as to why did he reach there at 9.00 p.m. According to physician, 9 he reached at the place of victim at 10.30, while according to Anil Kumar PW-4, when he went to physician, who had gone out to attend other patient, and had returned after about 1½ hours, which is not the statement of PW-1. Rather PW-1 has stated that he sleeps down at 8.30 and he was made to wake up. From this it was concluded, that it creates a serious doubt about the incident having occurred at around 7.00 p.m., or at around 9.00 p.m., as is contended by the accused. Learned Judge has then proceeded to observe, that none of the witnesses have deposed about the time consumed for making arrangement of the jeep, nor any evidence in this regard has been produced. The jeepwala has not been produced in evidence, however, according to PW-3 immediately after bringing Balram to home somebody fetched the jeep, but his name has not been disclosed, however, Anil Kumar has admitted in cross-examination that the jeep could not be arranged before arrival of the physician. Thus, it was found, that there is material contradiction in the evidence of Anil Kumar and Balveer about the time consumed in making arrangement of the jeep. Then the learned Judge has considered, that according to the prosecution victim was taken from the village at about 11.30 in night, and reached hospital at about 12.30, which shows that arrangement of jeep was made after 9.30, and therefore, if occurrence had occurred at 7.00, expeditious arrangement would have been made for procuring jeep. Then the learned Judge has proceeded to rely upon these circumstances for the purpose, that according to PW-2 10 occurrence occurred at the time of dusk, and he did not see the injuries in the light, and that, though it was time of dusk there was enough light, while according to the learned Judge, on the date of incident, time of sun set was 5.45 and therefore, it cannot be believed that at about 7.00 there was enough light. Thus, according to the statement of Prabhati Ram occurrence might have occurred at about 6.00, while according to PW-4 also, the occurrence took place at the time of dusk, and thus, it was concluded that all three eye-witnesses have tried to change the time of incident. Then the learned Judge has proceeded to examine the reliability of the eye-witnesses, and in that process has noticed, that according to PW-2 he reached on the spot on hearing cries, and found that Balram was lying bleeding from the head, and also found five accused-persons, out of which, Hari Ram and Lachhi Ram were having 'Kassis', Hakam Ram was having 'Gandasi' and remaining two were having 'lathies', who were beating Balram. Then he intervened, Anil Kumar had already reached, who also intervened and had also received injuries. Then in cross-examination he has admitted that before his arrival Balram had already received injuries, however, he has not been able to show as to how many injuries were caused by Lachhi Ram and Hari Ram to Balram after his arrival so also by Chuni Ram and Saheb Ram. From this, it is concluded that if the witnesses were present on the spot there was no reason as to why the witnesses could not give detailed description. Then learned Judge proceeded further to conclude that according to calculation to be arrived at on the basis of 11 the statement of this witness Prabhati Ram, he should have received 10 to 15 injuries and to have received 6 to 9 sharp edged weapon injuries, while this is not the thing appearing from the medical report. Inter alia with this, it was found, that his presence on the spot is seriously doubtful. Then the learned Judge has proceeded to examine other eye-witness, Balveer, and has proceeded to observe, that in examination chief he could only gave out that Hakam Ram inflicted one injury on the head of Balram and could not state as to which of the accused-persons inflicted other injuries on other person. Likewise, though he has deposed that Anil Kumar received injuries in the process of intervention, but could not clarify as to which accused caused how many injuries, with what weapons, to Anil Kumar. Likewise, it was also noticed that in Ex-P/1, it is not mentioned that when Anil Kumar tried to intervene, injuries were inflicted on him also. Then it is observed that the witness is Chacha of Anil Kumar, Balveer, Anil Kumar and Prabhati Ram, all three had brought Balram to home and remained with Balram at home, still omission about receiving injury by Anil Kumar in Ex.-P/1, creates a serious doubt as to whether Balveer was on the spot or not, thus with this discussion, the presence of Balveer has been discarded. Then learned Judge has discussed the evidence of PW-1 Anil Kumar, who has deposed that when he reached on the spot, his father was lying unconscious, Hakam Ram was armed with 'Gandasi', Hari Ram and Lachhi Ram were armed with 'Kasiya' and Chuni Ram and Saheb Ram were armed with 'lathi', then he intervened to get released his father and uncle. While in earlier part, he has stated that when he heard cries and went on the spot, he saw that all five accused-persons were 12 giving beating to his father and uncle, but he could not depose as to which accused caused injury on which of the victim, what part of the body, and with which weapon, in his presence. Then the learned Judge has also proceeded to consider that though he has deposed that when he tried to intervene, injuries were caused on him also, but could not give out as to which accused inflicted how many injuries, with what weapon, and on what part of his body. Then the learned Judge has also proceeded to consider that according to statements of this witness, Balveer and Balram should each have 15 injuries, including 6 to 9 injuries of sharp edged weapon, which is not shown to be there in the medical report. With this reasoning, the learned Judge has doubted the presence of this witness on the spot. This is how the evidence of all three eye-witnesses have been discarded by the learned Judge. In our view, the whole approach is basically contrary to the established principles of appreciation of evidence. The Hon'ble Supreme Court has umpteen number of times held that in such a mally, where number of accused-persons are indiscriminately showering blows on the victims with different weapons, it would be too much to expect the victims or the eye-witnesses to give a photographic account of the incident, in order to earn credibility for recording conviction. All said and done, when happening of the incident, and at the place of incident, is not in dispute, then it is required to be comprehended, that before the commencement of the incident, the victims were in senses, and the assault was opened by Hakam Ram by inflicting 'Gandasi' blow, one on the head of each of two victims Balram and Balveer. Looking to the nature of injury of Balram, as appearing in the injury report 13 Ex.-P/4, and even post-mortem report Ex.-P/5, that he sustained fracture of both parietals, and brain tissues came out. Obviously, he could not be expected to be in senses, to notice the details of the subsequent continuance of the incidence. Then so far Balveer is concerned, he too had received incised wound of the length of 1¾” on the left parietal region, apart from other incised wound received, but then depth of the wound only report to be 1/4”, he could very well notice the other persons inflicting injuries to him, and to other victims Balram and Anil Kumar, and looking to the totality of circumstances, Balveer is rightly expected to raise hue and cry, then as appears from Ex.-P/10, that locality is thickly populated, it can rightly be believed, that their cry must have attracted some persons, and Anil Kumar being a son and nephew, was reasonably expected to intervene, though others may be only spectators. If this situation is comprehended in proper manner, obvious conclusion is, that two witnesses PW-2 and PW-4 could see inflicting all injuries, only to the extent that they were inflicted after they reached on the spot. In such circumstances, it was too much on the part of the learned Judge to expect photographic reproduction of the incident by three eye-witnesses, and to cross tally the number of injuries, with mathematical precision, from the statement of witnesses and medical reports. The approach completely eliminated human element. Thus, we are constrained to observe that the appreciation of evidence of three eye-witnesses, as made by the learned trial court cannot be sustained, and is set aside. So far as, the observation made by the learned Judge 14 about the prosecution changing the time of incident is concerned, even Chuni Ram in his statement recorded under Section 313 Cr.P.C. has not stated, that the incident took place at any other time, likewise to the witnesses also it was not suggested, that the time of incident is different than one deposed by the witnesses. In cross-examination directed to Balveer PW-3 in this regard was only in the direction of assailing the reliability of the explanation given for delay in lodging the report, and not in the direction of making any attempt, to make out a ground, that the prosecution is changing the time of incident, thus it can very safely be said, that the learned Judge has proceeded on irrelevant consideration as well. Then coming to the aspect of delay in lodging the report, in our view, looking to the totality of circumstances, nature of injuries received by the victims, their gravity, and location of police station being about 15 kms., at that hour of night in cold season of October, it cannot be said, that there was any unreasonable delay, or unexplained delay, in lodging the report. It is also significant to note, that this is not even the suggestion, that the FIR was delayed so as to consume the time for manipulations, manoeuvring or making embroideries in the prosecution story. Thus, this ground, considered by the learned judge, also cannot be sustained. Then we straightway come to the evidence, and in our view, to use the expression of Hon'ble Supreme Court, Balveer PW-3 is clearly a branded