D.B. Criminal Appeal No. 151/1988 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Padamji Versus State of Rajasthan D.B. CRIMINAL APPEAL NO. 151/1988 Date of Judgment : 27.09.2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Mridul Jain ] Mr. Bhagat Dadhich ] Mr. Shaitan Singh Badgujar ] Mr. K.C. Sharma ] for the appellant Mr. K.R. Bishnoi – Public Prosecutor BY THE COURT (PER HON'BLE JOSHI, J.) By this judgment we propose to dispose of the appeal preferred by appellant Padamji S/o Kamalji by caste Patel, resident of Village Padla Jani, Police Station Aspur, District Dungarpur who has been convicted and sentenced by the learned District and Sessions Judge, Dungarpur vide judgment dated 19.02.1988 in Sessions Case No. 27/1986, whereby the accused appellant Padamji was held guilty for the commission of offence under Section 302 IPC and punished with life imprisonment and a fine of Rs.200/- and in default of payment of fine further to undergo one month's rigorous imprisonment. The learned trial court convicted one more accused Page 1 of 18 D.B. Criminal Appeal No. 151/1988 Kodar S/o Rupeng Patel resident of Village Padla Jani, Police Station Aspur, District Dungarpur for the commission of offence under Section 302 and 404 IPC and he had also preferred appeal, but during the pendency of the appeal, accused Kodar had died and this court vide order dated 10.07.2000 ordered to abate the appeal filed by Kodar, therefore, now we have to adjudicate the matter regarding the appeal filed by Padamji. Here it would be appropriate to narrate the facts of the case in nutshell and as per the facts disclosed during the investigation and trial, the prosecution story was that on 28.04.1986 at 5.00 p.m. Manji S/o Gangji (P.W.2) lodged an oral report at the Police Station Aspur that on 21.04.1986 he alongwith his wife went to Village Katri in connection with the marriage of his relative and his son Dungar and daughter Smt. Pema remained at his residence in the village. On 21.04.1986 in the afternoon, Dhanji and Nathu came in a jeep and took him and his wife back to his village. When he reached his residence, he saw crowd outside his house and his daughter Pema was crying while his son Dungar was lying on a cot. He saw his face, but his son Dungar was dead. At that stage he alongwith his wife became unconscious and later on after regaining the consciousness, he inquired about the incident occurred, then the persons present at the site alongwith both the accused informed that Dungar had fallen from Mauha tree. Both the accused Page 2 of 18 D.B. Criminal Appeal No. 151/1988 alongwith Nathuji, Rupeng, Kamalji, Kewalji took Dungar to the funeral place and cremated the dead body and burnt the clothes which were worn by the deceased at the time of death. At that time Parthi (P.w.10) and Nathu objected that they should inform the police, but nobody paid heed to them. On the next day Mst. Pema told him that on the day of incident early in the morning Dungar went to collect Mauha and Mst. Pema after completing her work also went there and saw that her brother Dungar was lying in injured condition below a Mauha tree. She ran immediately and called Parthi, Kheemji, Nathu and Bhanji and all these persons carried Dungar and while going to the hospital Dungar died at the Raykee Bus Stand. Dungar narrated the names of the accused Kodar and Padamji as the assailants. The First Information Report also contained this fact that Kachru S/o Nathuji saw both the accused armed with Kulharis. Nanji S/o Dungar also saw them. In the First Information Report it had also been stated that the earings and towel of the deceased Dungar were missing. On this report FIR No. 51/1986 under Section 302 and 201 read with Section 34 IPC was registered in Police Station Aspur and the investigation commenced. During the course of investigation, after inspection of the site of occurrence, site memo was prepared, the statements Page 3 of 18 D.B. Criminal Appeal No. 151/1988 of the witnesses were recorded, both the accused were arrested on 05.05.1986 and on the basis of the information recorded under Section 27 of the Indian Evidence Act, articles were recovered from them. Some of the articles recovered from the accused were sent to the Forensic Science Laboratory and after receiving the report and after usual investigation, the Investigating Officer submitted challan against the accused persons in the court of Judicial Magistrate (First Class), Dungarpur from where the case was committed to the Court of District and Sessions Judge, Dungarpur as the offences were exlusively triable by the court of Sessions. The accused appellant Padamji was charged for the commission of offence under Section 302, 202 read with Section 109 and 201 read with Section 109 IPC, to which he did not plead guilty and claimed to be tried. The prosecution examined as many as 14 witnesses, namely, P.W.1 Mahendra Singh, P.W.2 Manji, P.W.3 Tajeng, P.W.4 Bhanji, P.W.5 Nanji, P.W.6 Kanhaiya Lal, P.W.7 Babulal, P.W.8 Pema, P.W.9 Lal Singh, P.W.10 Parthi, P.W.11 Vallabhram, P.W.12 Amanullah Khan, P.W.13 Hem Singh and P.W.14 Ajeej Mohd. The incriminating evidence adduced against the accused appellant by the prosecution was put to him for explanation under Section 313 CrPC and the accused appellant examined D.W.1 Pemji as the defence witness. Page 4 of 18 D.B. Criminal Appeal No. 151/1988 The learned District and Sessions Judge, Dungarpur vide the above judgment convicted the accused appellant Padamji for the commission of offence under Section 302 IPC and sentenced him as mentioned above. The prosecution adduced 4 circumstantial evidence against the accused appellant which were as under :- (i)The prosecution examined P.W.5 Nanji as the witness who saw the accused appellant while returning from the place of incident alongwith Kodar and at that time Kodar was having Kulhari in his possession and Padamji and Kodar were wearing blood stained clothes. (ii)The second circumstance adduced by the prosecution against the accused appellant was regarding oral dying declaration made by deceased Dungar before P.W.4 Bhanji, P.W.8 Pema and P.W.10 Parthi. (iii)The third circumstance adduced by the prosecution against the accused appellant was regarding extra judicial confession made by both the accused before P.W.1 Mahendra Singh. (iv)The fourth circumstance adduced by the prosecution against the accused appellant was regarding the recovery of the blood Page 5 of 18 D.B. Criminal Appeal No. 151/1988 stained clothes of the accused recovered at their instance as per the information recorded under Section 27 of the Indian Evidence Act and which were further found to be stained with 'B' group of blood on examination by the Forensic Science Laboratory. One more circumstance which was adduced by the prosecution was regarding the motive for commission of the offence and there are two sets of motive adduced by the prosecution; one was the dispute regaining mauha tree and the second motive was regarding the dispute between the complainant party and the accused regarding possession of land. Now if we come to the evidence produced by the prosecution, P.W.1 Mahendra Singh deposed that on the relevant date he was Sarpanch of the Village Nandli Ahada and the Village Padla Jani was within the jurisdiction of that Panchayat circle. In the 4th month he went to the Village Padla Jani to supervise the construction work of a well, then villagers informed him about the death of Dungar, then he went to the residence of Dungar where he met Manji, father of the deceased. On seeing him, Manji and Pema, sister of the deceased, started to cry loudly and then Manji told him that Kodar and Padamji caused the death of his son Dungar and also cremated the body of the deceased. He inquired from them whether a police report was filed or not, then Page 6 of 18 D.B. Criminal Appeal No. 151/1988 Manji informed him that his brother and Kodarji and Padamji did not allow him to file the First Information Report. Pema informed him that on the date of the incident in the morning when she brought tea and breakfast for Dungar at the scene of occurence, then Dungar was lying below the tree of Mauha and his Dhoti was lying at some distant place and there were injuries on the body of Dungar and blood was oozing from his head, face and thigh. She also asked Dungar about the incident and Dungar told her that Kodar and Padamji caused injuries to him. He told Manji to come to him to lodge the FIR on the next day and Manji came to him on the next day and lodged the First Information Report in the Police Station Aspur. On the day when he went to the residence of Manji, he also asked both Kodar and Padamji why they had caused death of Dungar, then Kodar told him that Dungar restrained them to collect Mauha, therefore, they caused death of Dungar. Padamji did not tell anything. There was a dispute between Kodar, Padamji and Manji regarding the possession of certain land and Panchayat proceedings were pending for that land. Further P.W.1 Mahendra deposed that police inspected the place of occurrence and prepared the site memo Ex.P.5 and the map of the scene of occurrence as Ex.P.6. The police seized the blood stained Goodri vide memo Ex.P.7. On 29th date police came with both the accused and at the information of Kodar police recovered blood stained Dhoti, Baniyan, towel and two gold earings and blood Page 7 of 18 D.B. Criminal Appeal No. 151/1988 stained Kulhari vide memo Ex.P.8. This witness also deposed that at the instance of Padamji police recovered blood stained Dhoti and Bandi of the said accused vide memo Ex.P.9. He admitted his signature on these documents and further identified all the articles in the court. P.W.2 Manji deposed that on the relevant date he alongwith his wife were at Village Katri and Nathu and Dhanji came there and informed that his son Dungar had died as he fell down from Mauha tree, then he returned to his residence and saw the face of Dungar. Dungar was dead. Pema was there. After two days Pema informed him that Dungar had told her that Padamji and Kodar caused his death. Kodar and Padamji threatened him and brought the dead body of Dungar to cremation place and cremated it. This witness further deposed that there was a dispute of land between Kodar and him. He later on filed the report Ex.P.10 in the Police Station Aspur and further this witness identified the articles recovered at the instance of the accused appellant in the court. P.W.3 Tajeng was the witness of site inspection memo and he deposed that the Investigating Officer inspected the place of occurrence and prepared the site inspection memo and map of the site. Page 8 of 18 D.B. Criminal Appeal No. 151/1988 P.W.4 Bhanji did not corroborate the prosecution story, therefore, he was declared hostile by the prosecution. P.W.5 Nanji deposed that on the relevant date he went to the handpump and washed his hands and mouth. At that time Kodar and Padamji were coming from the side of pond. Kodar was having Kulhari and Padamji was empty hand. They were wearing blood stained clothes. On the same day at about 6-7 a.m. he heard loud cries that Dungar was lying below Mauha tree. Then he went to the house of Manji where he saw injured Dungar. Blood was oozing from the body of Dungar. He was brought to the hospital, but he succumbed to the injuries on the way to the hospital. P.W.6 Kanhaiya Lal did not corroborate the prosecution story, therefore, he was declared hostile by the prosecution. P.W.7 Babulal is the witness of bringing the blood stained articles to the Forensic Science Laboratory, Jaipur. P.W.8 Pema deposed that on the relevant date Dungar went to collect Mauha and later on she brought tea for him and then she saw that he was lying below a Mauha tree and there were injuries on the head, neck, right thigh and left foot of Page 9 of 18 D.B. Criminal Appeal No. 151/1988 Dungar. When she reached the place of occurrence, Dungar was lying and he told that Kodariya and Padiya caused injuries to him. The dhoti of Dungar was lying on the tree and he was naked with only a Baniyan on his body and gold earings of Dungar were missing at that time. Nathu and Khema brought Dungar to their residence and while taking him to the hospital, he succumbed to the injuries. P.W.9 Lal Singh deposed that on 05.05.1986 he was posted as Constable at the Police Station Aspur and he went with the Investigating Officer Ajeej Mohd. to recover the articles at the instance of the information recorded under Section 27 of the Indian Evidence Act and further deposed about the recovery of the blood stained clothes of the accused, blood stained Kulhari and the earings of the deceased Dungar and further admitted his signature on the recovery memoes. P.W.10 Parthi did not corroborate the prosecution story, therefore, he was declared hostile by the prosecution. P.W.11 Vallabhram was examined as the Patwari and he deposed that in 1982 he was Patwari of Village Nandli Ahada and he deposed about the dispute regarding land between the complainant party and the accused. Page 10 of 18 D.B. Criminal Appeal No. 151/1988 P.W.13 Hem Singh deposed that on 27.05.1986 he was Tehsildar, Aspur. On that day on the request of the S.H.O. Police Station Aspur he conducted the identification parade of gold earings and he mixed 5 sets of other earings and identification was done by Manji and Dallu. Both these witnesses identified the recovered earings as correct. He prepared the memo of identification parade as Ex.P.24. P.W.14 Ajeej Mohd. was examined as the Investigating Officer and he deposed about lodging of the First Information Report and usual investigation conducted by him including the recovery of the blood stained clothes, Kulhari and earings of the deceased at the instance of the accused appellant and Kodar. The accused appellant denied the evidence of the prosecution in his statement under Section 313 CrPC and produced D.W.1 Pemji as defence witness, who deposed that 2 years before the recording of the evidence in the court, he went to Padla Janta Village in the search of his horse. He heard cries from the chowk of Manji. Dungar was lying there and there were earings in the ears of Dungar and a handkerchief was lying on his head. Padamji and Kodar were also present there. Learned counsel for the accused appellant after Page 11 of 18 D.B. Criminal Appeal No. 151/1988 taking us through all the relevant material available on record contended that the evidence adduced by the prosecution regarding each circumstance could not be believed by the learned trial court and the learned trial court erred in relying upon the evidence of P.W.5 Nanji who saw the accused appellant while returning from the place of incident. In the similar way, the learned trial court erred in relying upon the evidence of P.W.4 Bhanji, P.W.8 Pema and P.W.10 Parthi regarding the fact of oral dying declaration made by the deceased Dungar as well as the evidence of P.W.1 Mahendra Singh regarding the extra judicial confession made by the accused appellant, connecting the accused with the recovery of blood stained clothes of the accused appellant and lastly regarding the motive as proved by the prosecution during the trial. The contention of the learned counsel for the accused appellant is that the learned trial court disbelieved the evidence of P.W.5 Nanji regarding seeing the accused appellant with blood stained clothes. Learned counsel for the accused appellant while drawing our attention towards para 8 of the judgment contended that P.W.5 Nanji deposed in the examination-in-chief that there was some darkness, therefore, he could not depose whether Kodar was wearing the Baniyan or the shirt and only on this basis the statement of P.W.5 Nanji was disbelieved by the learned trial court, therefore, on this ground the statement of Page 12 of 18 D.B. Criminal Appeal No. 151/1988 P.W.5 could not inspire faith and the same could not be termed as reliable. Regarding the second circumstance adduced by the prosecution, the contention of the learned counsel for the accused appellant was that the fact of oral dying declaration made by the deceased Dungar before P.W.4 Bhanji and P.W.10 Parthi had not been proved because both these witnesses had not supported the prosecution story and had been declared hostile by the prosecution and so far as the statement of P.W.8 Pema is concerned, learned counsel for the accused appellant contended that the conduct of P.W.8 Pema was not as per the normal human behaviour because had she been the witness of this fact, she would have disclosed this fact to her father immediately after the incident when her father reached his village, whereas the disclosure of this fact by P.W.8 Pema to her father after 2-3 days of the incident could not inspire faith and the learned trial court erred in relying upon the evidence of P.W.8 Pema. Regarding the third circumstance the learned counsel for the accused appellant contended that P.W.1 Mahendra Singh deposed that Kodar made the extra judicial confession and told him that they had committed the mistake, but regarding the present accused appellant, there was no evidence of extra Page 13 of 18 D.B. Criminal Appeal No. 151/1988 judicial confession, moresoever P.W.1 Mahendra Singh deposed that at the relevant time Padamji remained silent when Kodar made the extra judicial confession for the commission of the offence. Regarding the fourth circumstance, the learned counsel for the accused appellant contended that the recovery of the blood stained clothes was made at the instance of the information recorded under Section 27 of the present accused appellant after 14 days of the incident and it was most unbelievable that the accused would have kept the blood stained clothes for such a long time at his residence and therefore, the learned trial court erred in relying upon this evidence also. Further regarding the motive for commission of the offence, the learned counsel for the accused appellant contended that the evidence adduced by the prosecution regarding the motive as the dispute regarding Mauha tree and dispute regarding the possession of the land was such a weak type of evidence that it could not be relied that due to this motive the offence under Section 302 IPC could have been committed. Moresoever the evidence adduced by the prosecution in this regard was of very weak nature and not reliable one. Per contra, learned Public Prosecutor defended the Page 14 of 18 D.B. Criminal Appeal No. 151/1988 judgment of the learned trial court and further argued that the judgment of the learned trial court does not suffer from any infirmity or illegality and it could not be said that the learned trial court earred in relying upon the evidence adduced by the prosecution regarding the facts as narrated above. The learned counsel for the accused appellant relied upon 3 judgments of this court, namely, (i) 2010(2) Cr.L.R. (Raj.) 997 Gopal Lal Vs. State of Rajasthan (ii) 2009(1) Cr.L.R. (Raj.) 56 Bhanwara Ram Vs. State of Rajasthan (iii) 2007(4) CJ (Raj) Cr. 1436 Khurshid @ Khurshed Vs. State of Rajasthan We have considered the rival contentions advanced by both the parties and evaluated and scanned the evidence available on record and also perused the judgments cited by learned counsel for the accused appellant. As regards the first circumstance of evidence is concerned, we have perused the statement of P.W.5 Nanji who deposed in examination-in-chief that there was some darkness, therefore, he could not say whether Kodar was wearing a Baniyan or a shirt. In the light of the above statement of P.W.5 Page 15 of 18 D.B. Criminal Appeal No. 151/1988 Nanji, the entire evidence regarding the fact that he saw the accused appellant with blood stained clothes could not be relied upon by the learned trial court because he was not in the position even to see whether the accused Kodar (now deceased) was wearing a Baniyan or a shirt. In these circumstances, it was not possible for him to see the blood stains on the clothes worn by accused appellant and in our view, the learned trial court erred in relying upon the evidence of P.W.5 Nanji. So far as the evidence of oral dying declaration made by deceased Dungar before P.W.4 Bhanji and P.W.10 Parthi was concerned, both these witnesses did not corroborate the story of the prosecution and were declared hostile and so far as the statement of P.W.8 Pema was concerned, it was admitted fact that Pema is the real sister of deceased Dungar and she did not disclose this fact of oral dying declaration for two days before anyone and after two days of the incident, she disclosed this fact to her father. This behaviour of P.W.8 Pema is against the normal human behaviour because had any dying declaration been made before her, she would have disclosed this fact immediately to his father or near relatives and moreover this witness is interested witness, therefore, her statement regarding oral dying declaration could not be relied. So far as the evidence of extra judicial confession is Page 16 of 18 D.B. Criminal Appeal No. 151/1988 concerned, P.W.1 Mahendra Singh only deposed regarding the fact of extra judicial confession made by accused Kodar and not by accused appellant Padamji, therefore, his statement regarding extra judicial confession made by Kodar is not relevant so far as accused appellant Padamji is concerned. The next evidence available against the accused appellant Padamji relied upon by the learned trial Judge was regarding the recovery of blood stained clothes at the instance of the accused appellant in pursuance of the information recorded under Section 27 of the Indian Evidence Act. The contention of the learned counsel for the accused appellant in this regard seems to be of force because it was unbelievable to keep the blood stained clothes by the accused appellant for 14 days in his house, therefore, the recovery of the blood stained clothes at the instance of Padamji in pursuance to the information recorded under Section 27 of the Indian Evidence Act could not be relied upon. As Regards the motive of the incident is concerned, the evidence produced by the prosecution is too weak and not reliable one because two sets of evidence regarding the motive were adduced by the prosecution, but the fact which came into evidence that just after the incident when P.W.8 Pema reached the place of incident, Dhoti of the deceased Dungar was found Page 17 of 18 D.B. Criminal Appeal No. 151/1988 hanging on the Mauha tree, itself creats doubts regarding the commission of offence by Padamji. In view of the discussion made above, the learned trial court has erred in relying upon the evidence of P.W.1 Mahendra Singh, P.W.5 Nanji and P.W.8 Pema and the evidence regarding the circumstances as adduced by the prosecution during the trial, therefore, the judgment of conviction and order of sentence passed against the accused appellant Padamji deserves to be set aside. Accordingly, the appeal filed by accused appellant Padamji S/o Kamalji is allowed and the judgment of conviction and order of sentence dated 19.02.1988 passed against him by the learned District and Sessions Judge, Dungarpur in Sessions Case No. 27/1986 is set aside and he is acquitted of the charges levelled against him. The appellant Padamji S/o Kamalji is on bail. His bail bonds are hereby discharged and he need not surrender. [KAILASH CHANDRA JOSHI],J. [PRAKASH TATIA],J. Pramod Page 18 of 18