1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T (1) BABULAL V. THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO.621/2005. (2) RAM CHANDRA @ CHANDRA RAM V. THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO.416/2005. (3) BHAGA RAM & PUKH RAJ V. THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO.714/2005. Against the judgment dated 15.4.2005, passed by Shri Praveen Bhatnagar, RHJS, Additional Sessions Judge, (Fast Track) No.1, Jodhpur, in Sessions Case Nos. 06/2003 & 129/2003. DATE OF JUDGMENT APRIL 15, 2010. PRESENT. HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE C. M. TOTLA Mr. Amitabh Achalrya ) Mr. P.R.Choudhary ) for Appellants. Mr.Shambhoo Singh ) Mr.K.R.Bishnoi, PP, for the State. Mr.J.S.Choudhary) Mr. Pradeep ) for Complainant. BY THE COURT: (PER HON'BLE TOTLA, J.) 2 Appellants (i) Ram Chandra @ Chandra Ram s/o. Magni Ram in appeal No.416/05, (ii) Babulal s/o. Prabhu Ram in appeal No.621/05 and (iii) Bhaga Ram s/o. Magna Ram & (iv) Pukh Raj sons of Manga Ram in appeal No.714/05, have challenged their conviction and sentence for the offence of (a) S.302 read with S.149 IPC – life imprisonment with fine Rs.5,000/-, failing to pay three years imprisonment, (b) S.307 read with S.149 IPC – life imprisonment with fine Rs.3,000/-, in default two years, (c) S.364 IPC – five years rigorous imprisonment and fine Rs.2,000/-, in default one year, (d) S. 454 IPC – one year rigorous imprisonment with fine Rs.500/-, in default one month, (e) S. 201 IPC – three years' rigorous imprisonment with fine Rs.1,000/-, in default on year, (f) S.148 IPC – one year simple imprisonment, (g) S.323 – one month simple imprisonment, (h) S.341 IPC – one month simple imprisonment, recorded and directed vide judgment dated 15.4.05 before the Court of Additional Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case Nos. 6/03 and 129/03. All the substantive sentences are ordered to run concurrently. Incident and sequence of events allegedly, per prosecution are that on 19.9.02 at about 7.00 p.m. Mehra Ram PW 1, reaching police station, Kherapa, submitted written report Ex.P2 to the then incharge ASI PW 16, informing that on that day in evening at about 6.30 p.m., when he, mother Jhamku and sister Sua were sitting in dhani came in a jeep No.RJ 21 C 4304 Chandra Ram s/o. Magna Ram, Pukhraj s/o. Magna Ram, Bhaga Ram s/o. Magna Ram, Magla Ram s/lo. Ruga Ram, Durga Ram s/o. 3 Puna Ram, Kharta Ram s/o. Puna Ram, Babulal s/o. Prabhu Ram, Prakash s/o. Mangna Ram, Ramaram s/o. Durga Ram and others, totaling 15 who all Jats of Chataliya and others of Nagaur - came armed with lathi, dhariya, sword, revolver and they entering dhani, did beat them – and while beating by them continued, arrived his sister's husband Mohan Ram so all these persons observing Mohan Ram and to assault him apprehendingly following him tried to detain him and, as Mohan Ram to protect self ran away on motor cycle – these persons following him in jeep, and stopping him inflicted injuries to him – informer PW 1 runningly went and intervening tried to protect but these persons picking up Mohan Ram, and to kill him, have taken him in jeep so, and he (PW 1) at P.S. to report. ASI PW 16, making own endorsement and also mentioning (to him) of PW 1, that incident, happened because of land partition dispute between them and elder father Magna Ram s/o. Rama Ram, registered FIR No.139/02 Ex.P41 for the offences of Ss. 147, 148, 149, 452, 364, 323, 341 and 379 IPC. Regarding FIR, PW 16 also mentioned that injured are being got medically examined. SHO PW/26 commencing investigation per him (i) in morning of September 20th, on receiving information by some informer reached Khadepa Melana road milestone of Khedapa 2 km and finding there near Goshala dead body of Mohan Ram – prepared memos and sketch of the place Ex.P/19 and 22 – collecting samples of spread blood and plain soil was sealed and packets marked as S1, S2 - there in pocket of pant on the person of Mohan Ram was also a live cartridge of 12 bore (ii) place of 4 dead body photographed by PW/15 positives P/44 to 50 and negatives, 44A to 50A, (iii) Examining body, prepared memos P16 and 17, describing injuries which included that of head (iv) directed for postmortem which performed by Medical officer PW/27 proving memo P/17 - shirt pant and underclothes of Mohan Ram taken and sealed preparing memo P/20 packet marked A. SHO PW/16 in course of investigation also inspecting place of beginning of occurrence, the dhani, which also was place where deceased Mohan Ram was beaten and now where kidnapped - and there found (a) toy pistol, (b) a dhariya, (c) bamboo peel (chhal) pieces with blood like stains (d) shoe and handkerchief said to be of deceased, (e) broken glass pieces of light of motor cycle taken preparing memo and sketch Ex.P/3 . PW 26 arresting appellant Bhaga on 20.09.02 at 11:35 PM and per his disclosure recorded as P/74 on 22.09.02 and at his instance from his room recovered a Zai preparing memo Ex. P/31 and site plan Ex.P/35 - appellant Pukhraj was also arrested on 22.09.02 and per his disclosure Ex.P/73 on 22.09.02 from his room recovered a lathi vide memos P/32 and 33-appellant Babu arrested on 21.09.02 vide memo Ex.P/28 and per his disclosure Ex.P/72 on 23.09.02, a lathi recovered from his house memo Ex.P/30 and site plan Ex.P/31. Motor cycle No. RJ-19 13M 2755 with broken headlight and damaged mudguard etc found near stone quarries on 20.09.02 at 9:15 PM taken vide memo Ex.P/21. Information regarding registered owner of jeep was obtained from Transport Officer vide letter Ex.P/75 and then notice under Section 133 of 5 M.V. Act given to owner PW/27 who informed that driverwas Sikander Khan who arrested on 21.09.02 vide memo Ex.P/27 and jeep RJ 21 C 4304 taken preparing memo Ex.P/29. Subsequently, Bablu @ Raju was arrested in July,03 and per his disclosures, place of occurrence are said to have been verified and related memos prepared are Ex.P/55, 71, 56, 77. Appellant Ram Chand @ Chandra Ram S/o Magna Ram was arrested on 17.06.03 and Pukhraj S/o Magna Ram on 22.10.02 and place of occurrence etc also verified at their instance. It also appear that prior to above information on 19.9.02 itself, PW 1 purpotedly also presented a written report Ex.P1 at 4.50 p.m., stating that litigation and consequential enmity is between them and Chandra Ram, Pukh Raj, Bhaga Ram, all sons of Mangna Ram, Mangla Ram s/o. Ruga Ram, Prakash s/o. Mangna Ram and Pukh Raj s/o. Durga Ram, so these persons often quarrelled and abuseds and on that day also at about 4 afternoon some persons coming to their (PW 1's) house with lathis, abused and threatened them. Smt. Jhamku PW 2 injured was admitted in hospital on very day for treatment and medical jurist PW 12, examining her and getting her x- rayed, prepared report Ex.P38 – injury report of first informer PW 1 and of his sister PW 3 respectively are Exs. P78 and 77 who were examined by doctor PW 27. Post-mortem on body of Moham Ram conducted by Board which included medical jurist PW 27 and report prepared is Ex/P79. After other investigation and delivering packets of collected and 6 recovered articles intact, with forwarding letter, to FSL initially charge- sheet was submitted against four. Then after supplementary charge- sheet against two and then against one. Per charge-sheet proceedings for some continued under Section 173 (8) Cr.P.C. Appellants and two others Sikander, Bablu @ Raju, all charged for the offences of Sections 148, 302 or 302/149, 307 or 307/149, 364, 454, 323, 341 and 209 IPC, claimed trial. Appellants are held guilty as above while other two are acquitted and one is absconding. Among the 28 prosecution witnesses examined, PW 1 is first informer, PW 2 is mother of PW 1 and PW 3. PW 3 is also wife of deceased Mohan Ram who all received injuries. PW 10 and PW 11, witnesses of incident, are declared hostile. PW 4, 5, 6, 7, 8, 9 and 24 are motbirs of different proceedings, who all except PWs 4 and 6 are declared hostile. Constables PWs 17 and 18 are motbirs of verification of place of occurrences. Head constable PW 13, constable PW 14, constable PW 21 pertain to safe keeping of and delivering of different packets at FSL. PW 15 is photographer. ASI PW 16 registered FIR and SHO PW 26 did most of the investigation and Sub-Inspector PW 20, ASI PW 23 and after posted SHO PW 25 also investigated at different stages. Nemi Chand PW 28 is jeep owner. PWs 12, 22 and 27 are medical officers, whereas before Judicial Magistrate Mahendra Singh PW 19 was conducted identification parade for accused Bablu @ Babliya @ Raju s/o. Shri Parsa Ram, who proves memos of identification Exs. P13 and 14. Appellant Pukhraj expressing of his false implication, asserted that 7 on that whole day, he was on job as supervisor in Hari Industries belonging to Vasudeo DW 6, from where he was arrested on 20.9.02 – also explains that complainants intending to grab land of his share, tried for forceful possession and this false case. Appellant Ram Chandra explains that he with family since seven years living at Nagaur in rented house of Prem Singh and employed at shop of Prem Prakash – on that day, was at Nagaur who picked from Tonk on 11.6.03 where he was for sale of business material and he falsely implicated for grabbing land. Per appellant Babulal, he falsely implicated because he 107 Cr.P.C. proceedings cited as a witness for opposite party. Bhaga explains that PWs 1, 2, 3 and Mohan Ram did quarrel and beat him so he went to report at 12.30 noon that day to police station, but constable Mohan Ram, a relative of deceased, detaining him falsely implicated him. Also explains that dispute for partition of land was and complainant intended to grab his land. Among nine defence witnesses, DW 1 is in relation to acquitted accused Bablu-DW 2 and DW 3 state of Ram Chandra living at Nagaur. Dws 4, 5, 6 and owner of the factory DW 7 tell of appellant Pukhraj working at factory on 19.9.02 and taken from thereby place on 20.9.02. Defence witness Mota Ram DW 8-husband of PW 2 and father of PWs 1 and 3, say of living separate to wife since 25 years and that after a fortnight of marriage he was handicapped as a result of accident with a tractor. Deva Ram DW 9 do also depose in this regard. 8 Learned Judge, while acquitting two, arriving conclusions for guilt of appellants, convicted and sentenced them as above. Learned counsel for the appellants extensively describing statements of witnesses argued that on fact, the case is not proved and at least reasonably substantial doubt regarding truthfulness created. For Bhaga Ram argued is that for him specifically stated is of having dhariya, but no injury to any of any sharp object is and witness admit of not truly narrating in course of investigation. Regarding sword and dhariya, emphatically argued for appellant Pukh Raj s/o. Magni Ram that he on 19.9.02 hold a working at a factory in Jodhpur which firmly established by defence witness which include owner of the factory DW 7. Similarly, for Ram Chandra, urged that he happen to be at Nagaur. On behalf of the appellant, thrustly submitted that no dhani of theirs was and they not were in possession. Learned Public Prosecutor contends that provenly Mohan Ram forcibly picked up and taken from there by persons, including appellant and, thereafter, Mohan Ram found dead next morning. Hearing arguments of the learned counsel for the appellant and learned Public Prosecutor, we have carefully gone through the record, evidence produced, documents, judgment assailed and also memo of appeal. Having a look at the deposition of medical jurist doctor PW 27, is proved that post-mortem on the body of Mohan Ram s/o. Sanwata Ram, 45 years, conducted at 2.35 p.m. on 20.9.02 who had sustained following 9 injuries (A) Abrasions (i) 2 x 2 right forehead, (ii) 3 x 0.5 left temporal, (iii) 6 x 25 cm right cheek, (iv) 2 x ½ cm on chin, (v) 5 x ½ cm on left chin, (vi) 2 x 1 cm on left cheek, (vii) 8 x 4 cm on right shoulder and right chest middle, (viii) 2 x 0.5 cm right knee, 5 x 1 cm on right knee, 5 x 2 cm on left leg, 7 x 3 cm on left knee, 16 x 11 cm below chest – above abdomen, 2 x 0.5 cm on left thigh, 22 x 7 cm on right back and 12 x 2 cm above right buttock. (B) Bruises (i) 6 x 2 cm on left thigh,(ii) 12 x 2 cm on left shoulder,(iii) 10 x 2 cm on lower left back, (iv) 9 x 2 cm on left back, (v) 12 x 2 cm and 10 x 2 cm on left buttock, 5 x 1.5 cm on left thigh, 3 x 2 cm on left thigh middle, 12 x 2 cm right upper buttock.(C)Haematoma on right left and mid parietal region and sub-dural, haematoma left pareital to temporal area, (D) Fractures of 3rd, 4th and 5th right ribs with one torn and with 600 cc of blood, and fracture of left elbow. (E) Lacerated wound with bruises and abrasion 2 x 1 left upper arm. All injuries were ante-mortem and death due to head and lung injuries which sufficient in normal course of nature to cause death. Postmortem report Ex.P79 bears signatures of three members constituting board and death within past 24 hours, that is after afternoon of 19.9.02. Cumulatively taken with other evidence is proved that Ram Chandra died after about 5 p.m. of 19.9.02 and prior to early of 20.9.02. Considering deposition of doctor PW 27, is proved that on 21.9.02 noon, following were the injuries to Smt.Suwa PW 3 (A) Bruises (i) 13 x 7 cm overlapping on thigh outer side with swelling, 4 x 2 cm left lower outer side of thigh, 3 x 3 cm on left knee, 6 x 3 cm on left leg, 7 x 3 cm 10 and 3 x 3 cm on left arm,8 x 5 cm on outer of right thigh and of 11 x 6 cm at back,1.5 x 1 and 1 x 1 cm on right leg. (B) Bruise 0.5 x 0.5 cm on left knee. Injury report Ex.P30 and injuries simple of blunt of 1 to 2 days duration. Mehra Ram PW 1 examined by medical jurist PW 27 at 12.30 noon of 21.9.02 and on his person, were (i) Abrasions 3.5 x 4 cm on lower left arm and of 8 cm on left posterior of left arm;(ii) Abrasions near each other respectively of 5, 4 and 3 cm left arm front; (iii) Abrasion 1 x 05 left ankle and of 5 & 3 cms crossing each other on lower part of chest – all of blunt object of between 1 and 2 days duration and report Ex.P78. Dr. Joshi PW 12 medical jurist, hospital Jodhpur, depose that Smt. Jhamku PW 2, admitted in orthopedic ward on 20.9.02 was examined by him on 25.9.02 and found following injuries :- (i) Stitched lacerated wound of 2 x 2 cms forehead;(ii) Plaster on left leg from toe to upper knee; (iii) Abrasion 5 x 1 cm left scapula, 5 x 2 cm left back, 6 x 2 cm right chest, 5.8 x 3 cm mid of back.(iv) Bruises 5 x 1 cm left scapula. Her chest and left knee were x-rayed before doctor Radiologist PW 22, (plates Ex.P66 to 70) and found were (i) Fractures of 8th, 9th and 10th ribs; (ii) Fractures of left tibia upper 1/4th - all of blunt object. Injury report Ex.P38, x-ray report Ex.P39 and x-rays 66 to 70. Prior to appreciation and evaluation of evidence for the incident, appropriate is to mention that some dispute regarding partition and 11 possession of agriculture land existed prior to incident. PW 2 is wife, whereas PW 1 and PW 3 among four issues of Mota Ram DW 8. Mehra Ram PW 1, 21 years and first informer, accepts that he, brother, sister and mother filed a civil revenue suit Ex.P4 against father and brothers of father and Ex.D2 is copy of written statement filed by Mota Ram and others. PW 1 categorically admits that father did attempt to relinquish and release his share of agriculture land in 2002, executing a registered deed. Filing of revenue suit Ex.P4, written statement Ex.D2 and also proceeding before Family Court Ex.D3 are admitted one. Going through Ex.P5 and D2, appears that Mota Ram, Mangla Ram, Magni Ram and one Shri Koja Ram real brothers are sons of Shri Goga Ram. Ex.P4 was filed on May 1, 02, claiming 5/24 of the total and out of 1/4th share of Mota Ram of the 152.03 bigha of land situated in village Chataliya. Thus, complainants claimed share, partition and possession of 5/6th of belonging to Mota Ram. In written statement Ex.D2, Mota Ram and others mentioned that Mota Ram executed relinquishment and release deed and got it registered on 5.1.02 and total land in possession of Mota Ram and brothers. Ex.D3 is copy of application under Section 125 Cr.P.C. filed on 29.5.02 by Smt. Jhamku, claiming maintenance of her and a 16 years son from Mota Ram and in paras 4 and 6, specifically averred and PW 2 categorically admits that since 1992 Mota Ram abandoning and deserting family, is living with his brothers. As shall be observed that sufficient probabilities (as far as, and limitedly concerned for this case) exists that perhaps Mota Ram living 12 separately for last 20 – 25 years. Stands firmly established that since 1992 at least Mota Ram not living with complainant and further established is serious dispute regarding possession, partition of agriculture land and proceedings under Section 107 Cr.P.C. also initiated in April, 02, copies of which are Exs. P7, 8, 9 and 10. It is to be noted that three appellants are sons of Magna Ram – among the ten persons named in FIR Ex.P2, four are sons of Magna Ram and one Mangla Ram, both brothers of Mota Ram and cause of the incident was land dispute – ancestral one. PWs 1, 2 and 3, all very straightly admit that Mota Ram is handicapped. Mehra Ram PW 1, then 20 years, says that he last saw parents living together 12-13 years ago and father living with his brothers for 10-15 years, father handicapped prior to his remembrances and PW 1 strangely states ignorance of which leg father is handicapped, as such safely can be inferred that Mota Ram handicapped, did not live with complainant for 15 years. For Mota Ram being handicapped since long, is also unambiguous admission by PWs 2 and 3. Mota Ram DW 3 in written statement Ex.D2 in May, 02, asserting of living separate to PW 2 since last 30 years and soon after marriage, vehemently questions also about children. Mota Ram DW 8 himself deposes that he now 55 years, was married when 20 years and wife lived with him for 15 days and then after never since 25 years – DW 8 further says that he handicapped, as a result of striking by a tractor and questions about children. A close perusal of the evidence also discloses that per PWs 1, 2 and 13 3, maternals of PW 1 also live in village Chataliya and dhani of maternal uncle Labu Ram is at a distance of about half km from dhani of complainant but no where appears any description of residential house of PWs 1 & 2 in the village. As such established is that Mota Ram was not living with wife and children since 15 years and perhaps since 20-25 years. With above also is fact that PWs 2 and 1 do say that for 10-11 years, they resided at Jodhpur and prior to it, for 2-3 years, at Gotan, all these may be relevant to determine genesis of the incident. For the dhani where and from where incident began, PW 2 says that they built a room like only a month ago by stone slabs and inserting slabs in earth. From the evidence of PWs 1 and 3, also appears that dhani or substantial change made only a month or two ago. Here, it is worth to take note that memo of site inspection Ex.P3 prepared by SHO before PW 1 and as is deposed and admitted by them fields around the dhani are described to be those in possession of Magna Ram etc. and for the field of dhani itself also is mentioned that now in possession of complainant and earlier was possession of Magna Ram s/o. Ruga Ram. Appellants Ram Chandra @ Chanra Ram s/o. Magni Ram and also Pukhraj s/o. Magna Ram have pleaded alibi. Appellant Ram Chandra claims to be at Nagaur. Principles for proving and effect of alibi are well settled and also are elaborated in Hon'ble Apex judgment in (i) AIR 2009 SC 1866, State of Kerala v. Anilachandran @ Madhu & Othes;, (ii) (2009) 6 SCC 308 State of H.P. v. Rakesh Kumar; (iii) (2009) 7 SCC 415, Akbar 14 Sheikh & Others v. State of West Bengal; and (iv) (2005) 12 SCC 267, Gayadin v. State of M. P. The alibi is to be established by the person claiming it – alibi, if proved, may also a little adversely affect prosecution (in relation to other accused, if any, and depending upon various other factors, facts and circumstances of that case) and incident – alibi specifically pleaded and found untrue, still onus on prosecution to prove its case remains intact and only the other defence if specifically taken by the accused is perhaps to be examined carefully. Therefore, in this particular case, failure to establish alibi pleaded does not adversely affect any appellant. Considering alibi, Ram Chand @ Chandra Ram S/o Magna Ram claims to be at Nagaur. His landlord at Nagaur Prem singh DW/2 say of he living with family in his house since last 7-8 years and employed at the shop of the trader who also keep buffalo and sell milk in morning and evening. DW/2 further say that on 19.09.02 Ram Chandra was very much there and police personnel inquiring about him on 19.09.02 also some days after who told by him (DW 2) of Ramchandra being there on 19.09.02. Prem Prakash DW/3 say of Ramchandra working at his shop since 2002 duty hours being 9 morning to 7.30 evening who also used to go out in relation to business and sell milk in morning and evening. DW/2 also say that either on June 9th, 10th or 15th, policemen inquired about Ram Chandra who was out to Tonk since June 10th where sent for business work. The testimony of these witnesses is not worth of establishing presence of appellant at Nagaur. 15 Appellant Pukhraj S/o Magna asserts of being at Jodhpur and working at factory Hari Industries owned by Vasudev DW/7 who state that Pukhraj and other five were employed in his factory who used to come at 9 and work till 7.30 evening and that he himself remains at factory during day. Per DW/7 appellant Pukhraj was employed since last 10-11 months and very much at factory on 19.11.02 from morning to evening and when he (DW/7) came to factory at 9 AM on 20.09.02 Pukhraj was not and other employees told of coming of police personels so the witness inquired on phone from P.S. Basni and informed of Pukhraj having been called in regard to some quarrel of 19.09.02 in