IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T Dwarkilal son of Shri Keshrilal by caste Mali, Resident of Barod P.S.Budadeet, District Kota. Vs. State of Rajasthan through its Public Prosecutor. D.B. Criminal Appeal No. 1399/2002 against the judgment & order dated 5.10.2002 passed by the Additional Sessions Judge (Fast Track) No.1, Kota in Sessions Case No. 30/2002. Date of Judgment 9th February, 2010 PRESENT HON'BLE MR. JUSTICE S.P.PATHAK HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr. Sanjay Meharishi ) Mr. Tarun Jain ) for the appellant. Mrs. Rekha Madnani PP for the State. **** BY THE COURT: (Per Hon'ble Mr. Chaudhari,J.) This appeal has been filed against judgment dated 5.10.2002 passed by Additional Sessions Judge (Fast Track) No.1, Kota in Sessions Case No.30/2002 by which he convicted accused-appellant-Dwarikalal under Section 302 IPC and sentenced him to undergo life imprisonment and fine of Rs.2,000/-, in default of payment of fine to further undergo six months simple imprisonment. Brief facts of the prosecution case are that PW3-Munir Khan lodged FIR Ex.P/1 on 1.1.2002 at 4.45 p.m. and alleged that he was sitting at 11.00 a.m. on his liquor shop, accused-Dwarikalal and deceased-Babulal came to his shop and purchased three pouches of liquor and went back side of his shop towards forest area. At 2.30 p.m. both of them again came to his shop and purchased one pouch of liquor and payment was made by Babulal. Again at 3.00 p.m. both of them came to his shop and purchased two pouches of liquor and payment was made by Babulal and went back side of his shop. At 3.30 p.m. accused-Dwarikalal came to his shop and while running revealed him that he has murdered Babulal, then he went back side of his shop and saw that Bubalal was lying on the sand and his head and ear were bleeding. He enquired from Babulal, who revealed him that Dwarika had hit him by stone. He returned back and asked Munna Bhai-Conductor to intimate this fact at Babulal's residence. He again went on the spot and found that Bubulal had died. He came to know that there was enmity between them. On this report case under Section 302 IPC read with Section 3 of the SC/ST (Prevention of Atrocities) Act (hereinafter to be referred as “the Act”) was registered and after completion of investigation challan under Section 302 IPC read with Section 3 of the Act was filed in the Court of Judicial Magistrate Deegod. The case was committed to the Court of Special Judge, SC/ST (Prevention of Atrocities) Court, Kota but by order dated 8.3.2002 the Atrocities Court returned back file to the Court of Judicial Magistrate after discharging the accused under Section 3 of the Act. The Judicial Magistrate, Deegod again committed the case to the Court of Sessions Judge, Kota from where case was transferred to the Additional Sessions Judge (Fast Track) No.1, Kota. Charge was framed under Section 302 IPC against accused-appellant to which he denied. During trial prosecution examined 17 witnesses. After recording statement of accused under Section 313 Cr.P.C. defence examined two witnesses. After hearing arguments, the accused-appellant was convicted and sentenced as aforesaid. Heard learned counsel for the parties and perused the record. Learned counsel for the appellant argued that the trial Court has committed error in placing reliance on the evidence of Danmal and Dharamveer, who had enmity with the accused and further submitted that the deceased died on account of fall on the stone after consuming heavy alcohal, hence the appeal of the appellant may be accepted and he may be acquitted of the charges levelled against him. On the other hand, learned Public Prosecutor submitted that the prosecution has proved beyond reasonable doubt the charge against the accused- appellant and the trial Court has given cogent reasons for conviction, hence, the appeal of the accused-appellant may be dismissed. It is amply proved by the prosecution witnesses, postmortem report Ex.P/7, statement of PW4- Dr.Alok Sharma that deceased-Babulal died on account of head injury due to fractures of temporal bone, frontal parietal bone and occipital bone. Now the question to be decided by this Court is whether the accused caused head injury to the deceased by stone. PW3-Munir Khan, who had lodged report Ex.P/1, has stated that accused came to his shop at 11.00 a.m. and after purchasing liquor pouch went back side of his shop. After half an hour deceased Babulal came to his shop purchased two pouches of liquor and went back side of his shop. Again after one hour deceased-Babulal came and purchased two pouches and returned back. He further stated that at 3.30 p.m. when he went back side of his shop for natural call he saw that Bubulal was lying on the stone and was bleeding. He did not go near Babulal but returned back and asked Munna Bhai-Conductor to intimate at Babulal's residence. He further stated that when he returned back to his shop Danmal, brother of deceased-Babulal, had come there. He admitted in his examination in chief that he has not seen any person inflicting injury on the body of deceased-Babulal. He cannot say how injury was sustained by Babulal. He further stated that he did not see accused near Babulal. In his cross examination he admitted that Babulal did not reveal to him that accused inflicted injury on his body. He had no conversation with Babulal after sustaining injury till his death. He further admitted that he has not seen accused inflicting injury by stone. Though he lodged report Ex.P/1 but he further stated that this report has not been scribed by him and he has merely put his signature as directed by the SHO and he is illiterate. He has also denied this fact that accused came to his shop and confessed that he has committed murder of Babulal. PW5-Munna Bhai, whose reference has been made in report Ex.P/1, has stated that Munir Khan told him that Babulal is lying behind his shop, but he is not aware whether he is alive or dead. He further revealed that Munir Khan asked him to intimate at Babulal's residence, but he had no time to intimate at Babulal's residence, so in-turn he asked Narottam to intimate this fact at Babulal's residence. He further stated that on that day he did not see accused. The prosecution has not examined Narottam for the reasons best known to it. The prosecution has not declared Munir Khan and Munna Bhai hostile for the reasons best known to it. In 2005 SCC (Cri) 1050, Raja Ram vs. State of Rajasthan it was held that if a prosecution witness does not support prosecution case and is not declared hostile and if evidence of such witness is relied upon by the defence, it would bind the prosecution. The accused has stated in his statement under Section 313 Cr.P.C. that on account of enmity he has been falsely implicated. It is also admitted case that deceased-Babulal purchased liquor pouches and consumed liquor in back side the shop of PW3-Munir Khan and died there, on account of injury on his head. Though PW3-Munir Khan has stated that he cannot say whether Babulal sustained injury on account of fall on stone after consuming liquor, but circumstance reveals that after consuming heavy dose of liquor Babulal might have fallen on the stone and sustained injuries. PW4-Dr.Alok Sharma has also admitted that possibility of sustaining injury on head on account of fall after consuming liquor cannot be ruled out though both injuries cannot come in one fall. Looking to the circumstances of the case coupled with the fact that main witness, to whom deceased disclosed fact of causing injury by accused or accused making confession before him, has not been declared hostile, it can be inferred that accused did not inflict injury with stone on the head of deceased-Babulal, but deceased-Babulal sustained injury on account of fall in drunken state on the stone. As per report Ex.P/1 accused made extra judicial confession before Munir Khan about murder of deceased and deceased also made dying declaration about the cause of his death. PW3-Munir Khan has not supported report Ex.P/1 and specifically admitted that accused neither came to his shop nor confessed his guilt. In such circumstances it cannot be inferred that accused made extra judicial confession before Munir Khan about his guilt. Statement of Munir Khan also reveals that he did not go near Babulal and had no conversation with Babulal after sustaining injury, till his death. In such circumstancese, it cannot be inferred that deceased made dying declaration before Munir Khan about his cause of death. Thus accused cannot be connected with the crime on account of extra judicial confession and dying declaration. Learned trial Court has placed reliance on the statements of two witnesses namely; PW6-Dan Mal and PW11-Dharamveer. PW11-Dharamveer is 14 years old boy and he is son of PW6-Dan Mal. PW6-Dan Mal is brother of deceased-Babulal. PW11-Dharamveer has stated that he saw quarreling accused and deceased in back of the house of Heeralal. He further stated that accused hit Babulal by a stone on account of which Babulal fell on sand. He further stated that accused hit two to three times by stone and on account of fear he ran away from the spot and revealed this fact to his family members at his home. Lateron he alongwith his father went on the spot, by that time, Babulal had died. He further admitted that when they came back on the spot accused was not present there. In his cross examination he stated that his aunty wife of Babulal asked him to make search of Babulal. He further admitted that he did not ask on the liquor shop about whereabouts of Babulal. He further admitted that when accused was hitting Babulal neither he tried to rescue him nor he cried. He further admitted that when deceased and accused were quarreling, accused was not armed with stone. He further admitted that while running from the spot he did not cry and further stated that why should he have cried? He further admitted that while running from the spot and reaching to the home no one met him. He further admitted that Narottam did not meet them. He further admitted that his father and deceased- Babulal were convicted in murder case on the evidence of accused. PW6-Dan Mal has stated that Roopnarain has not been examined by the prosecution. He has also stated that Narottam told him that he saw accused running from the spot after inflicting injury on the body of Babulal. On the contrary, PW11-Dharamveer has admitted that Narottam did not meet them. PW14- Narottam has stated that Munna Bhai informed him that Babulal is lying behind liquor shop, but he is not aware with whom he quarreled. He further stated that Munna Bhai asked him to intimate at Babulal's residence, but he did not go there. He was declared hostile and he denied his police statement Ex.P/22. Thus, it becomes clear that Dan Mal falsely stated this fact that Narottam has seen the incident and intimated this fact to him. Dharamveer has stated that he revealed whole incident to family members at his home whereas Dan Mal has stated that near liquor shop Dharamveer met him and informed about the incident. Dan Mal has further stated in his statement that before one week of the occurrence accused armed with Gandasa went to the house of Babulal and at that time he was returned back, but he admitted in his cross examination that no report was lodged at police station. This fact does not find place in his police statement Ex.D/1 though according to him he narrated this fact in his police statement. By evidence of DW1-Ram Pratap and admission of PW11-Dharamveer coupled with copy of judgment Ex.D/1 it becomes clear that on the evidence of accused, deceased-Babu Lal and PW6-Dan Mal were convicted under Section 302 IPC by judgment dated 6.10.94. In such circumstances this possibility cannot be ruled out that on account of this enmity Dan Mal and Dharamveer are implicating accused. Prosecution has tried to introduce Dharamveer as eye witness in the case, but looking to his conduct no reliance can be placed on his statement. Firstly, there was no ocassion for Dharamveer to go on the spot and see the occurrence because he was only 14 years old boy and was not supposed to make search of his uncle-deceased-Babulal in forest area when his father Dan Mal was very well in the house. Secondly, Dharamveer has admitted in his statement that when accused was hitting Babulal, neither he tried to rescue nor he cried and while running from the spot he did not cry and further stated that why should he have cried ? This is unnatural conduct because had his uncle been hit by accused by stone either he should have cried on the spot or after running from the spot atleast he should have revealed this fact on the liquor shop or to other persons near the spot. It cannot be believed that no one met him in the way till he reached home. Had Dharamveer seen the occurrence, his statement would have been recorded on the same day, whereas his statement under Section 161 Cr.P.C. was recorded on 6.1.2002. This fact alone indicates that Dharamveer had not seen the occurrence and he has not revealed any fact to Dan Mal about the occurrence. In Ganesh Bhawan Patel & another vs. State of Maharashtra reported AIR 1979 SC, 135 statements of witnesses were recorded on next day, though they were or could be available when Investigating Officer visited scene of occurrence and on account of delay in recording statements accused-persons were acquitted under Section 302 IPC. In the present case recording of statement of Dharamveer on 6.1.2002 belies his statement and it cannot be believed that he was eye witness to the occurrence, particularly, when his name as witness to the occurrence has not been shown in report Ex.P/1 though as per PW6-Dan Mal report Ex.P/1 was lodged by PW3-Munir Khan in his presence. Dan Mal's presence on the spot just after occurrence is also doubtful because had he been there, report Ex.P/1 must have been lodged by him instead of Munir Khan and he must have narrated all facts including fact of witnessessing occurrence by Dharamveer. No reliance can be placed on the evidence of Dan Mal and Dharamveer on account of previous enmity and the learned trial Court has committed error in placing reliance on the evidence of these two witnesses and convicting the accused-appellant. In the light of the above discussions, it becomes clear that the prosecution has failed to prove offence against the accused-appellant beyond reasonable doubt and accused is entitled to acquittal. Consequently, DB Criminal Appeal No.1399/2002 is accepted and the judgment of the trial Court dated 5.10.2002 is set aside and the accused- appellant Dwarkilal son of Shri Keshrilal is acquitted of the offence under Section 302 IPC. The accused- appellant is in judicial custody and he shall be released forthwith, if not wanted in any other criminal case. (K.S.CHAUDHARI) J (S.P.PATHAK) J teekam