IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR CRIMINAL APPEAL No. 404 of 1984 STATE V/S RAM CHANDRA & ORS. Date of Judgment : 24.4.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. Mr. K.R. BISHNOI PP, for the appellant Mr. DOONGAR SINGH, for the respondent JUDGMENT BY THE COURT (PER HON'BLE MR. A.M. KAPADIA, J.): 1. By means of filing instant appeal under Sec. 374 of the Code of Criminal Procedure ('the Code' for short), the appellant State of Rajasthan has called in question the legality and validity of the judgment and order dated 30.07.1984 rendered in Sessions Case No.42 of 1981 (96/81) by the Addl. Sessions Judge, Bhilwara, acquitting the respondents-accused (A-1 to 1 A-6, for short) of the offence under Sec. 147, 148, 302/149, 325/149 & 323/149 of the Indian Penal Code ('IPC', for short). 2. The facts of the case have been detailed in the judgment of the learned Addl. Sessions Judge, Bhilwara, therefore, it is not necessary for us to repeat the same in verbatim and detail, however, the basic facts which are necessary for discussion in this appeal are as under: 2.1. As per the prosecution case, on 29.06.1991 complainant PW4 Bhanwar Lal lodged a written report before the SHO, Police Station Kotwali, Bhilwara to the effect that one day before the occurrence, in the evening, when he and his brother Jagdish had gone to Bhilwara on cycle then Ram Chandra Daroga was found sitting on a Barber shop, who took the cycle saying that he would return soon and went to village on the cycle but did not return, therefore, complainant Bhanwar Lal alongwith Bheru Daroga went to bring his cycle from Ram Chandra to his village Harni but he was not available at his house so they went to forest and searched for him and there they found Ram 2 Chandra. Ram Chandra took both of them i.e. Bhanwar Lal and Bheru for taking tea to the tea stall situated near Mahadevji temple at about 3-4 PM and when all the three were taking tea, at that time, Bhanwar Lal son of Ram Chandra Daroga brought his cycle from village Harni at the Hotel and after him all the six accused Ram Chandra Jat, Hajari Jat, Baxu Jat, Bheru Jat, Fattiya and Barda came armed with lathies and Iron bar and assaulted Ram Chandra and Bhanwar Lal Daroga in order to kill them. It was alleged that accused Ram Chandra was having iron bar in his hand, with which he gave blow on the head of Bhanwar Daroga, due to which he fell down and blood oozed out and all other accused beaten Ram Chandra by lathis. When complainant Bhanwarlal tried to intervene then he was also abused and Ram Chandra and Bheru gave three lathi blows on his back, left hand and right leg. It was also got mentioned in the FIR that there was an old enmity between accused and PW 12 Ram Chandra Daroga in respect of a woman and due to which all the accused assaulted Ram Chandra and his son Bhanwar Lal Daroga. 3. On receipt of this FIR, SHO, Police Station, Sadar 3 Kotwali, Bhilwara registered a case and commenced investigation. During the course of investigation, statements of the eye witnesses were recorded, Panchayatnama of the place of occurrence was prepared and recovery of the clothes worn by accused was made. Inquest on the dead body of the deceased was held and thereafter the dead body was sent for postmortem. PW12 Ram Chandra Daroga, who was also injured, was sent to hospital for treatment. Muddamal articles recovered were sent to the FSL for chemical examination. At the end of the investigation, as sufficient incriminating evidence was found against the accused, they were chargesheeted for the offence under Sec. 147, 148, 302/149, 325/149 and 323/149 IPC in the Court of Munsif & Judicial Magistrate, Bhilwara. As the offence under Sec.302 is exclusively triable by the Court of Sessions, the learned Munsif & Judicial Magistrate, Bhilwara committed the case to the Court of Sessions, Bhilwara. 4. The learned Addl. Sessions Judge, Bhilwara ('trial Court', for short), to whom the case was made over for trial, framed charge against accused for offence under Sec.147, 148, 302/149, 325/149 and 323/149 4 IPC. The charge was read over and explained to all the accused, who pleaded not guilty and claimed to be tried, therefore, they were put to trial. 5. In order to bring home the charge levelled against the accused, the prosecution has examined in all 23 witnesses and relied upon their oral testimony. The prosecution has also proved number of documents and relied upon the contents of the same. 6. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against them and recorded the statements of accused under Sec.313 of the Code. In their further statements, accused denied the case of the prosecution in toto. 7. Ram Chandra respondent No.1 (A-1), in his statement has admitted giving beating to the complainant party and has stated that Balu Jat had lured Sayari to flee away, who met him in the way and he brought them to his house from where Sayari was taken away by Bhanwar Jat, Bhanwar Daroga and Balu Jat and they attempted to sell her at Mataji-Ka-Kheda to which Sayari not agreed. He further stated that a report of 5 this incident was lodged at Police Station and as Bhanwar Daroga, Ram Chandra Daroga, Bhanwar Jat, Bheru Daroga and their companions wanted to get the statement of Sayari recorded in their favour, they forcibly took her away. Ram Chandra stated that he was working near that place and on hearing the cries of Sayari D.W.5, he went to rescue Sayari, so in order to get rid of him, the accused-respondents Bhanwar Daroga, Bhanwar Jat, Ram Chandra Daroga and others beaten him due to which he fell down on ground and thereafter Sayari was taken away by Ram Chandra Daroga and Bhanwar Daroga. At that time, Teachers of school and students were also there and the matter was reported by him in Police Station but he was followed by Bhanwar Jat and Bheru, who also reached Police Station and got the case registered there and he (Ram Chandra accused-respondent) was detained by the police. According to him, due to this old enmity Bhanwar and Ram Chandra wrongly and falsely implicated him in this case. 8. After completion of trial, the trial Court acquitted all the accused-respondents for the charge levelled against them by judgment and order dated 30.07.1984, which has given rise to the instant 6 appeal. 9. Mr. K.R. Bishnoi, learned Public Prosecutor, while assailing the judgment of the trial Court, submitted that the trial Court has not appreciated the evidence of the four eye witnesses PW4 Bhanwarlal, PW12 Ramchandra Daroga, PW15 Chhoga and PW16 Pushpa in true perspective. He submitted that in the instant case, eye witness PW4 Bhanwarlal has lodged the FIR, which is on record as Ex.P/8, and according to him, though PW4 has subsequently resiled from the statements made in the FIR, however, FIR Ex.P/8 has been accepted, therefore, the trial Court ought to have relied upon the FIR. He further submitted that PW12 Ramchandra Daroga is injured witness, whose injury report is on record as Ex.P/3, which shows that he received five injuries out of which one was fracture, however, the trial Court has disbelieved his evidence only on the ground that there are material contradictions in his statements and also that he has not been named in the FIR. He further submitted that PW14 Shyam Sunder and PW15 Chhoga, who are also the eye witnesses, have supported the prosecution case to a certain extent, however, the trial Court has committed error of law in not relying 7 upon their oral testimony. He contended that the finding given by the trial Court acquitting all the accused is perverse and the trial Court has taken very unreasonable view of the matter. In view of the aforesaid submissions, according to him the impugned judgment and order deserves to be quashed and set aside by allowing this appeal and thereby convicting the accused of the offence with which they were charged. He, therefore, urged to allow this appeal. 10.Per contra, Mr. Doongar Singh learned counsel for the accused has supported the impugned judgment and order as according to him there is no infirmity or illegality committed by the trial Court in acquitting the accused. He submitted that there is only solitary eye witness PW12 Ramchandra Daroga whose name has not been given in the FIR and whose evidence contradicts the evidence of others who have been declared hostile, therefore, the trial Court has rightly disbelieved his evidence. According to him, the impugned judgment and order does not call for interference of this Court while exercising appellate jurisdiction under Sec.378 of the Code. Besides this, 8 it is also contended by the learned counsel that this is an acquittal appeal and the principles governing the acquittal appeals are settled by catena of judgments of Supreme Court and as per the view expressed by the Supreme Court even if two views are possible, in that case also, in acquittal appeal, appellate Court cannot substitute its views by substituting other than the view expressed by the trial Court. According to him, appeal lacks merit and deserves to be dismissed. He, therefore, prayed to dismiss the appeal. 11.We have considered the submissions advanced by Mr. K.R. Bishnoi, learned Public Prosecutor for the appellant State of Rajasthan as well as Mr. Doongar Singh, learned counsel for accused-respondents and also perused the impugned judgment and order. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record, which has been referred to by the trial Court in its judgment with reference to broader and reasonable probabilities of the case. 12.So far as homicidal death of deceased Bhanwarlal is concerned, there is no dispute as per the medical evidence of PW7 Dr. D.R. Sharma. To prove the 9 homicidal death, the prosecution has examined and relied upon the evidence of Dr. Sharma, who has prepared the Postmortem report Ex.P/12. On a conjoint reading of oral testimony of PW7 Dr. D.R. Sharma and the Postmortem Report Ex.P/12, we have noticed that deceased Bhanwarlal Daroga had sustained incised wound 2” x 1/4” on his right parieto- occipital area of scalp and there was subdural haematoma of fronto parietal region of brain measuring about 4”x3” with clotted blood reaching upto the saggital suture. The cause of death of the deceased in the opinion of Dr. D.R. Sharma was head injury following subdural haematoma. Therefore, the deceased died a homicidal death. 12. 1 So far as injury report of PW12 Ramchandra Daroga is concerned, PW7 Dr. D.R. Sharma has issued Injury Report, which is on record as Ex.P/13, according to which Ramchandra received five injuries. Therefore, it is also proved that PW12 has received five injuries. 13.Now, the question which falls for consideration of this Court is as to whether the evidence produced by the prosecution is reliable and the prosecution has successfully established the charge leveled against 10 accused persons. 14.In this connection, the prosecution has relied upon the oral testimony of four witnesses claiming to be the eye witnesses; they are PW4, PW12, PW15 & PW16. 15.First of all, we shall discuss the evidence of PW4 Bhanwarlal, who has lodged the FIR which is on record as Ex.P/8. It may be noted that he has neither supported the prosecution case nor lodging of the FIR by him, therefore, he was declared hostile. He has given statements contrary to the facts given in the FIR Ex.P/8. He has stated that when he reached the forest near Ramchandra Daroga, then he found Ramchandra Daroga and his son Bhanwarlal there and he carried both of them with him to Harni and from there when they came to Mahadev Temple, Harni, a girl named Sayari was found there to whom Bhanwar and Ramchandra both were forcibly carrying, then on making hue and cry by Sayari, accused Ramchandra came so also other persons of the village came and thereafter a quarrel took place and deceased Bhanwar Daroga and his father Ramchandra Daroga made an attack on accused Ramchandra but it has been stated by him that Bheru 11 Daroga was present with him. In this manner, this witness has given contrary statement to the story of the prosecution and has corroborated the story of defence. 15.1In our opinion, on reappraisal of his evidence, the statements of this witness are not at all reliable because he has denied the facts stated in the FIR Ex.P/8 and his police statement Ex.P/9 and besides that, it has also been stated by him that FIR Ex.P/8 and Police statement Ex.P/9 were not made by him. During the course of cross examination, this witness has reiterated all those facts which the accused persons wanted but no reliance can be placed on such a witness because he has given contrary statement to his previous statements. 16.PW15 Chhoga, who is also produced as an eye witness, has stated in his statement that on the day of incident, he after taking bath in the morning was sitting in the hotel of Suresh Chandra Chhipa for taking tea then Bhanwar Daroga came running there from Harni and behind him accused persons Ramchandra Jat, Bheru Jat, Bahru Jat, Fattu Jat and Bardichand came and out of them Ramchandra Jat 12 inflicted leaf of the tractor on Bhanwar Daroga on his scalp and thereafter all the remaining accused persons, who were armed with lathis, started beating Ramchandra Daroga. It has been further stated by him that at the relevant time Ramchandra Daroga came from field and the accused persons broke his legs so Ramchandra fell down. But this witness, in his examination in chief has stated that he cannot state that which of the accused inflicted which injury with which weapon and that due to fear he had not gone to rescue Ramchandra and remained standing at distance. During the course of cross examination, it has been stated by this witness that the injury of the leaf was sustained on the left leg of Ramchandra Daroga and not of lathi. It has been further stated by him that accused Ramchandra, made Ramchandra Daroga to fall down and thereafter putting his leg on the neck inflicted leaf blows on Ramchandra Daroga. This fact is not mentioned in his police statement Ex.D/2 and besides it has also not been stated by PW12 Ramchandra Daroga in his statement that accused Ramchandra Jat had inflicted injury on his legs with the iron tie when he was standing. Besides, one such more fact has also been stated by this witness in his statement from which it becomes clear 13 that this witness was not present on the site. It has been stated by this witness in his statement that during the course of beating, in the first instance the accused persons had given beating to Bhanwar Jat only and Ramchandra Daroga and Bhanwar Daroga had gone for the rescue of Bhanwar Jat. When this witness was interrogated as to why the accused persons started giving beating to Bhanwar Jat then he stated that he did not know anything. It has also been stated by him that after starting beating to Bhanwar Jat, half an hour thereafter Bhanwar Daroga and Ramchandra Daroga came on the site. In this manner, this witness has changed the sequence of whole story of the prosecution side. According to prosecution story, at the first instance, beating was given by accused persons to deceased Bhanwar Daroga and thereafter to Ramchandra Daroga and after them to Bhanwar Jat. This sequence of the beating has also been stated by PW12 Ramchandra Daroga in his statement. 17.That apart, this witness, in his previous police statement Ex.D/2 at portion ‘A’ to ‘B’ has stated that enmity was going on between Bhanwar Daroga and Ramchandra Jat but this fact has been denied by him 14 before the Court. It has been stated by him in his police statement Ex.D/2 at portion ‘C’ to ‘D’ that Ramchandra Daroga, Bhanwar Jat and Bheru Daroga were sitting in the hotel of Suresh but in his statement before the Court he has denied this fact and it has been stated by him that two persons named Ganesh and Nanda were also present with him on the site but this fact was not stated by him in his police station. It has been stated by this witness in his police statement Ex.D/2 at portion ‘E’ to ‘F’ that beating was given by Ramchandra Jat with stick whereas before the Court he has denied this fact. As per his police statement Ex.D/2 at portion ‘G’ to ‘H’ and ‘I’ to ‘J’, Ramchandra came running and his legs were broken because of injuries caused by accused Ramchandra and that he intervened in the beating but in the statement before the Court he has denied to have stated those facts. This fact has to be noticed that the name of this witness is not mentioned in FIR Ex.P/8 and PW12 Ramchandra has also not disclosed the name of this witness in his statement. In view of the contradictory statements made by this witness, his evidence cannot be termed as reliable and trustworthy. 15 18.Now, we shall discuss the evidence of PW16 Pushpa, a girl of about 10 years of age, who according to the story of prosecution was preparing tea on the hotel of his father at the place of incident. Though she has stated in her examination in chief that Ramchandra Daroga and his son Bhanwarlal had come to the hotel for taking tea but Ramchandra Jat inflicted iron leaf on Ramchandra Daroga, as a result of which he fell down and Ramchandra Jat also inflicted iron leaf on Bhanwar but during the course of cross examination it is stated by this witness that she did not see beatings with her own eyes and that Ramandra and Bhanwar Daroga both went away after drinking water and thereafter she did not see them. In respect of interrogation conducted by the police, she has stated that the police had not interrogated her. It is mentioned in her police statement Ex.D/4 that Bhanwar Daroga reached the place of incident afterwards and in this respect it has been stated by her that the said fact was not stated by her. It has also been stated by her that on the site, nearby hotel of Ghasi was open and Ghasi was sitting there, and at the time of incident 5-7 persons were present in the said hotel and in her hotel 5-6 persons were drinking tea. Looking to the nature of such type of statements, 16 the statement of PW16 Pushpa is of no assistance and helpful to prove the guilt of the accused. 19.Now, the only eye witness, who has supported the case of the prosecution is PW12 Ramchandra Daroga, who is injured and father of deceased Bhanwarlal. It has been stated by this witness in his examination-in- chief that Bhanwarlal Jat and Bheru Daroga had come to him in the forest to take bicycle and he informed them that his son had carried the bicycle and he might have stayed at Harni Mahadev and therefore he asked both of them to go to Harni and after half an hour he also reached at Harni Mahadev. It would be relevant to mention here that he has sated in his police statement Ex.D/2 at portion ‘E’ to ‘F’ that they all the three had gone to Mahadevji for taking tea, however, in the statement before the Court he has stated that the above portion of his statement is incorrect. Likewise, it has been stated by this witness in his police statement Ex.D/2 at portion ‘A’ to ‘B’ that there was enmity between his son Bhanwar Daroga and accused Ramchandra Jat on account of a girl but before the Court he stated that he had not stated the said fact and no such enmity was existing between them. It is mentioned at portion ‘C’ to ‘D’ of Ex.D/2 17 that he, Bhanwar Jat and Bheru Daroga after drinking water were waiting for tea and after 10-15 minutes his son Bhanwar came with bicycle from the side of Harni. This witness has accepted the above facts being stated by him. It is relevant to take notice of the fact that this witness has stated that portion ‘C’ to ‘D’ of Ex.D/2 is correct but the same is in contradiction with this fact that he, Bhanwar Jat and Bheru Daroga together came from forest to the hotel. It has also been stated by this witness in his examination-in-chief that when he reached the site then at the relevant time his son Bhanwar was already present and there the accused persons were giving beating to him. It has been further stated by him in the cross examination that Ramchandra Jat inflicted injury to Bhanwar with an iron tie, as a result of which Bhanwar fell on the ground, and thereafter all the persons started giving beatings with sticks to Bhanwar. It has been stated by him in his police statement at portion ‘G’ to ‘H’ that all the accused persons gave beatings to Bhanwar together. Though it is not a material contradiction because in the said portion of the police statement this fact is mentioned that accused persons gave beatings to Bhanwar with iron tie and sticks and here also he has stated the same fact. The only 18 contradiction is that who inflicted the first injury and who inflicted afterwards. But this witness in his cross examination has shown ignorance about this fact and it has also been stated by him that he had seen the injury inflicted on the scalp of his son but afterwards he does not know and cannot say on which parts the injuries sustained. In this manner, except the above, Ramchandra has not been able to state that the accused persons inflicted the injuries on Bhanwar on which part and by which weapon. Besides the above, one more fatal fact, which has been stated by him during the cross examination is that it has been stated by him that before his reaching the place of incident, the accused persons were already giving beating to his son. It has been further stated by him that it is true that after his reaching, they left his son and started beating him and when he reached there then Bhanwar was lying on the ground. In this manner, it is not borne out from his statement that accused Ramchandra Jat had inflicted injury on the scalp of Bhanwar in his presence whereas in the examination in chief and in other statements it has been stated by him that accused Ramchandra Jat inflicted iron tie on the scalp of Bhanwar in his presence. It has been stated by him in his police statement Ex.D/2 at portion 19 ‘M’ to ‘N’ that Ramchandra Jat and Bheru inflicted tie and stick on his leg but in his statement before the Court he has stated that Ramchandra Jat had inflicted tie on his leg and he denied the portion ‘M’ to ‘N’. It has been stated by this witness in his police statement Ex.D/2 at portion ‘O’ to’P’ that Bhanwar Jat and Bheru Daroga ran away from there and the accused persons went away towards Harni thinking that they had died but he has stated in his statement in the Court that Bhanwar Jat and Bheru Daroga had already ran away before his sustaining injury on leg and from his said statement it is borne out that Bhanwar Jat and Bheru Daroga had not seen the injuries sustained by him. It has also been stated by him in his