1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Vass Dev Vs. State of Rajasthan. DB CRIMINAL APPEAL NO.1075/2003. DATE OF ORDER: 4th May, 2010. HON'BLE MR.JUSTICE S.P.PATHAK HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr. D.G. Chaturvedi for the appellant. Mr. G.S. Fauzdar, PP for the State. BY THE COURT (PER HON'BLE PATHAK,J): This criminal appeal under section 374 Cr.P.C. has been filed by the accused-appellant Vass Dev against the judgment of conviction and order of sentence dated 23rd June, 2003 passed by the learned Additional Sessions Judge (Fast Track) No.2, Dholpur in Sessions case No.34/2002 whereby the accused-appellant has been convicted for the offence under section 302/34 IPC and sentenced to imprisonment for life and a fine of Rs.500/-, in default of payment of fine to further undergo 15 days imprisonment. 2. Briefly stated the facts giving rise to the present appeal are that a first information report (Ex.P-2) was submitted at spot before Bhagwan Singh, SHO Police station Kanchanpur (PW-21) on 7.2.2002 by Ram Kumar (PW-10) stating, inter-alia, therein that his brother Satish was seen by him in the evening of 6.2.2002 in the company of Prakash and 2 Lajjo. All of them had consumed liquor. It was also stated that on the next day i.e. on 7.2.2002 when he opened the shop, Prakash came there and told him that his brother Satish (since deceased) was lying in front of the house of Rajendra Thakur and there were several injuries on his neck, head and hand. Hearing this, Ram Kumar (PW-10) accompanied by his brother Ashok (PW-1) reached at the place where the dead-body was lying. It was found that golden chain and ring which the deceased used to wear were not on his person and a wrist watch was lying near the dead-body. It was also stated that there was reasonable apprehension in his mind that his brother has been murdered by Amar Singh, Dev Hans and Udaibhan. It was also stated that in the murder of his brother Nemi, Feran and Ramlakhan have also helped them. The above report Ex.P-2 was handed over at the spot by Bhanwar Singh, investigating officer (PW-21) to Raj Kumar, constable (PW-20) who took the FIR to the police station and on that formal FIR, case no.41/2002 was registered under section 147, 148, 149, 302, 379 IPC and investigation commenced. 3. During the course of investigation, necessary memos were prepared, post-mortem on the dead-body of the deceased was conducted by Dr. Gopal Goyal (PW-13) on the request of the police, post-mortem report was prepared by him in the capacity of member of the board constituted for the purpose of conducting post-mortem on the dead-body. The 3 post-mortem report is Ex.P-14. The accused was arrested on 21.2.2002 vide memo Ex.P-23. In the custody of police on 27.2.2007, disclosure statement was made by the accused in presence of Amar Singh and Vidya Ram PW-16 and PW-22 respectively in relation to a jersy. The jersy having some blood spots was recovered and was sealed and thereafter sent for chemical examination to the Forensic Science Laboratory, Jaipur. The FSL report is Ex.P-25, which discloses that the blood group was 'AB' which was of the deceased. 4. After completion of investigation, charge-sheet was filed on 2.8.2002 against the accused for the offence under section 341, 302, 379, 34 IPC before the learned Magistrate and in relation to other accused as they were absconding, the matter was kept pending under section 173(8) Cr.P.C. The learned Magistrate committed the case to the court of Sessions and from there it came for trial before the Additional Sessions Judge (Fast Track) No.2, Dholpur. 5. After hearing submissions of both sides, charge was framed against the accused-appellant under section 341, 302/34 and 379/34 IPC to which the accused denied and claimed trial. In support of its case, the prosecution examined as many as 22 witnesses and tendered 25 documents in evidence. On behalf of defence, some documents were exhibited. After close of the prosecution evidence, in the explanation sought of the accused-appellant under section 313 4 Cr.P.C., it has been stated by him that he has been falsely implicated in the case and the witnesses being of one family having enmity with him falsely involved him in the case. Babu Singh (DW-1) has been produced to show that Raj Bahadur (PW-5) did not disclose the name of the accused either to him or to anybody else. 6. The learned trial court after hearing final submissions acquitted the accused of the charge under sections 341 and 379/34 IPC and convicted and sentenced the accused as indicated here-in-above. 7. We have heard learned counsel for the appellant as well as learned public prosecutor for the State. 8. It has been the contention of the learned counsel for the appellant that in this case it is only Raj Bahadur (PW-5) whose testimony has been relied upon by the trial court for convicting the accused-appellant. According to the learned counsel, his testimony is not worth credence for the reason that on 7.2.2002 when police came at the spot and made investigation, the dead-body was handed over to the complainant for cremation after post-mortem, he never disclosed that he had seen the incident, the accused along with others assaulted the deceased by an axe on different parts of his body as a result of which deceased died. It is contended that had there been involvement of accused-appellant in the incident then there was no reason for Raj Bahadur (PW-5) not 5 to disclose this important fact that he had witnessed the incident. It has further been contended that on reading the statement of Raj Bahadur (PW-5) as a whole, it would appear that he has concealed the fact that he was in near relation to the deceased to project himself as an independent witness. It is also contended that the trial court has based conviction only on the testimony of this witness coupled with the recovery of jersy. It is contended that the accused was arrested on 21.2.2002 and remained in custody of the police for several days and on 27.2.2007, disclosure statement was made by the accused and alleged recovery of jersy was effected vide Ex.P- 16. According to the learned counsel, the witnesses of recovery Anar Singh (PW-16) and Vidya Ram (PW-22) have not supported the case of prosecution and further in the absence of any blood test of the accused-appellant, it cannot be presumed that the accused had either worn jersy at the time of incident or participated in the incident. It is also contended that the alleged recovery of jersy has been made from open place as has been admitted by the witnesses including investigating officer of the case. It is contended that except the alleged recovery of jersy and the statement of Raj Bahadur (PW-5), there is no evidence to connect the accused with the crime. According to learned counsel the statement of Raj Bahadur (PW-5) is not at all reliable in view of the un- natural conduct of the witness and the recovery made in the 6 case is also doubtful. 9. On the other hand, learned public prosecutor has contended that the evidence led by the prosecution in this case has established completely that it was the accused who was responsible for causing death of the deceased as at the time of incident he was having a gun in his hand and other absconding accused in the case were armed with axe in their hands and they inflicted several axe blows on the person of the deceased, as a result of which he died. 10. We have considered the submissions made before us. 11. It is to be seen that in the instant case, Raj Bahadur (PW-5) in his statement has stated that on 6.2.2002 at about 9.00 p.m. in the night when he reached near the door of the house of one Nathi Nai, he saw that Faren son of Nekram, his brother Vishambher, Faren's brother-in-law Banwari and Vasudev (present appellant) having gun in his hand surrounded the deceased Satish and they assaulted the deceased by the axe which they were having in their hands except Vasudeo and thereafter he was thrown near a chabutra adjacent to the house of Rajendra Singh. He also stated that the accused-appellant gave kicks to the deceased while he was lying on the earth. He has further stated that when accused came to know about his presence at the spot, Faren and Vasudev threatened him not to disclose about the incident 7 and part taken by them in the incident to anybody else, his family members would also meet the same fate. He has stated that for this reason he did not disclose about the incident to anybody in the night and he went home and slept there. In the morning when he woke-up, the news about the murder of Satish had already spread in the village and he also reached at the spot. At that time, Om Prakash was also there. He has also stated that police took the dead-body with them, after some- time 'Thanedar' came in the village then he and Om Prakash disclosed the name of the accused persons including the appellant to him. He has also stated that the entire incident was narrated to Ashok (PW-1), the brother of the deceased. He has also stated that Faren one of the accused had doubt about Satish's (deceased) illicit relations with his brother's daughter and was also warned to mend his behaviour. In the cross- examination, he has stated that on 7.2.2002, police came in the village and at that time, he was near the dead-body and he was also roaming with the police here and there. He has stated that on the next day of cremation, the entire incident was told by him to the deceased's brother Ashok. In the last line of the cross-examination, he has stated that regarding incident, the day on which he informed the police they did not record his statement. 8 12. A perusal of the statement of Raj Bahadur (PW-5) shows that the cross-examination could not be completed for the reason that one application was filed by the prosecution and it was deferred. Order-sheet dated 18.6.2003 in this regard is relevant. It is mentioned in the order-sheet that the counsel for the appellant requested the court that Raj Bahadur (PW-5) was not required to be summoned for further cross- examination as there was no need to further cross-examine him. Thus, the statement can be read and his statement is complete. 13. A perusal of the statement indicates that he had seen the incident but he did not disclose it to others as he was under fear. From 6.2.2002 to 8.2.2002 he kept silence and was also with the police. There does not appear any circumstance to show that this witness along with one Om Prakash were under fear, therefore, they did not tell about the incident to anybody. It is also important to mention here that Raj Bahadur (PW-5) says that he was not in near relation to the deceased whereas Desh Raj (PW-2), Gulab Singh (PW-3), Ram Kumar (PW-10), Smt. Guddi (PW-15), Anar Singh (PW-16) and Lal Pat (PW-19) have either in their examination-in-chief or in cross-examination stated that deceased was in their relation and Raj Bahadur (PW-5) was also their relative. It appears that he has concealed this fact to project himself as independent eye witness of the incident. Be that as it may, the witness Om 9 Prakash has not supported the case of the prosecution at all and has been declared hostile. Raj Bahadur (PW-5) stated that he disclosed about the incident and name of the accused on the next day of cremation and this date comes to 8.2.2002. As per the statement of Ram Kumar (PW-10), he says that he had a talk with Raj Bahadur (PW-5) at his house when cremation was over. Raj Bahadur (PW-5) disclosed the name of the accused-appellant and others to him. Thus, it appears that up to 8.2.2002 Raj Bahadur (PW-5) did not disclose about the incident to anybody and the names of the accused who participated in the crime. It is also relevant to notice that Lal Pat (PW-19) says that police arrested Charan Singh and Udai Bhan whose names find place in Ex.P-2, written report, were subsequently after 3-4 days left by the police. This fact has also been admitted by Bhanwar Singh investigating officer (PW-21) that in the FIR, the names of above persons appeared as accused but they were not found involved in the incident. It also appears that suddenly on 8.2.2002, statement of Raj Bahadur (PW-5) was recorded and in that statement accused appellant has been named having a gun in his hand and participated in the crime as he gave beating by kicks to the deceased lying on the ground. This important piece of evidence is missing in the police statement of the witnesses. 10 14. In the case of State of Orissa Vs. Mr. Brahmananda Nanda- AIR 1976 SC 2488, the Hon'ble Apex Court while considering the reliability of the eye witnesses who did not disclose the name of the assailants for a day and half, the explanation of delay was of fear and threatening to the eye witnesses. The trial court on the fact found that the witnesses were reliable. The High Court of Orissa finding that there was no proper explanation for the delay caused in disclosing the name of the assailants acquitted the accused. The State of Orissa took up the matter in appeal to Apex Court. The Hon'ble Apex Court while dismissing the State appeal in para 2 observed as under: “The entire prosecution case against the respondent rests on the oral evidence of Chanchala (PW 6) who claimed to be an eye- witness to the murder of Hrudananda, one of the six persons alleged to have been killed by the respondent. The learned Additional Sessions Judge believed her evidence, but the High Court found it difficult to accept her testimony. The High Court has given cogent reasons for rejecting her evidence and we find ourselves completely in agreement with those reasons. We have carefully gone through the evidence of this witness, but we do not think we can place any reliance on it for the purpose of founding the conviction of the respondent. The evidence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest 11 of the murders were comitted, she did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of 13th June, 1969 and yet she did not come out with the name of the respondent until the morning of 15th June, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than 15th June, 1969 on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the Club House which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on 14th June, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the morning of 15th June, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case.” 15. In the case of State of Tamil Nadu represented by Secretary to Government Vs. Zubair @ Mohamed Zubair and others- (2008) 16 SCC 319, in relation to unnatural conduct of eyewitnesses where the witnesses Pws 1 and 2 left the injured in lurch and dis-appeared from the place of occurrence and they also did not inform about the occurrence till they were 12 asked by the police in the mid-night of the date of occurrence, their presence to witness the incident was held to be doubtful. The Hon'ble Apex Court, thus, observed that the High Court has rightly discarded the testimony of the above witnesses and rightly acquitted the accused in the case and dismissed the State appeal. 16. In view of fore-going discussion in relation to reliability of the statement of Raj Bahadur (PW-5), we are of the opinion that he is not the reliable witness and his evidence does not inspire confidence so as to hold the accused- appellant guilty for committing murder of the deceased Satish on the basis of his sole statement. 17. Now, the only incriminating evidence which remains in this case is of recovery of blood stained jersy. It is pertinent to point out here that the witnesses in relation to recovery of jersy are Anar Singh (PW-16) and Vidya Ram (PW-22). These two witnesses have not supported the prosecution case. Anar Singh (PW-16) has been declared hostile on the request of the prosecution. A reading of his entire statement shows that Raj Bahadur (PW-5) is his cousin brother and the deceased is also in his relation. Vidya Ram (PW-22), another witness in relation to recovery of jersy, has not been declared hostile. He has stated that he knew the deceased who was resident of his village. The police came to his village and asked him to accompany the police. The accused Vasudev went in a 13 thatched hut and brought a jacket which was shown by the police to the villagers and thereafter the same was sealed. In the cross-examination, he has stated that on the next day of recovery of the dead-body, he along with police and accused- appellant went to the 'adda' of Vasudev and jersy (Article-3) was recovered. This suggestion was declined that jersy (Article-3) in fact was given to the police by the family members of the deceased. A perusal of his statement indicates that either on 8th or 9th February, 2002 he accompanied the police and recovery of jersy (Article-3) was made from a thatched hut. Ex.P-23 is the arrest memo of accused Vasudev. It is dated 21.2.2002. Thus, it appears that after nearly six days of the arrest of the accused-appellant, the recovery of jersy has been made. If the jersy was recovered on 7th or 8th February, 2002 as stated by Vidhya Ram (PW-22) then the recovery memo (Ex.P- 16) which is dated 27.2.2002 creates doubt about its correctness and it appears that this document has been prepared subsequently in view of the statement of Vidhya Ram (PW-22). One of the witness of recovery has completely denied the prosecution case and another witness stated that on 8.2.2002 the recovery of jersy (Article-3) was made whereas the document of recovery (Ex.P-16) is dated 27.2.2002 and arrest memo (Ex.P-23) is dated 21.2.2002. The investigating officer of the case, Bhanwar Singh (PW-21) in his cross- examination has stated that accused did not make any 14 disclosure statement after his arrest up to 26.2.2002 though the accused was interrogated regularly after his arrest which was made on 21.2.2002. In the last line of the cross- examination, he has stated that from the thatched hut which was having no gate and was open, recovery of jersy was made. At that time there was nobody in the thatched hut but family members of the accused used to reside in that thatched hut. 18. Even the statement of Bhanwar Singh (PW-21), the investigating officer reveals that the place from where the recovery is made, a thatched hut, is said to be of accused- appellant was open and without any door and no person was there at that time. There does not appear any proof that the thatched hut was of accused-appellant in the absence of any material placed on record. Even if it is presumed that the thatched hut was of accused-appellant then it cannot be expected from the accused that he will preserve incriminating evidence to show his involvement in the case when arrested by the police subsequently after his arrest by police. It also appears that regularly from 21.2.2002 to 27.2.2002 interrogation was made from the accused but police could not extract any disclosure statement up to 26.2.2002, that also creates doubt about making of disclosure statement by the accused on 27.2.2002 in relation to the jersy. The witnesses of recovery i.e. Anar Singh (PW-16) and Vidhya Ram (PW-22) 15 have not supported the case of prosecution as discussed here- in-above. 19. After careful examination of the evidence of Raj Bahadur (PW-5) and Bhanwar Singh (PW-21), we are of the opinion that the evidence which has been brought in this case and particularly the statement of Raj Bahadur (PW-5) does not inspires confidence and the trial court has not properly appreciated the evidence of Raj Bahadur (PW-5) while holding the accused-appellant guilty on the basis of his statement and recovery of jersy made on the basis of disclosure statement of the accused, therefore, the judgment of conviction and order of sentence dated 23rd June, 2003 passed by the learned trial court requires to be set aside and the accused-appellant is liable to be acquitted of the charge framed against him. 20. In the result, this appeal is allowed. The judgment of conviction and order of sentence dated 23rd June 2003 passed by the learned trial court is set aside. The accused- appellant is acquitted of the charge under section 302/34 IPC framed against him. The accused appellant is in jail. He be released forth-with if not required in any other case. (K.S. CHAUDHARI), J. (S.P.PATHAK) J. BBLM