Rajasthan High Court - Jodhpur
Ramsingh vs State Of Rajasthan on 17 December, 2021
Bench: Sandeep Mehta, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 134/2018
1. Ramsingh S/o Shri Richpal Singh, Aged About 50 Years,
B/c Rajput, R/o Parawa, Tehsil Sujangarh, District Churu,
Rajasthan,
2. Kailashdan @ K.D. Charan S/o Shri Swai Dan, Aged About
35 Years, B/c Charan, R/o Ladnu, District Churu,
Rajasthan.
3. Mahavir Singh S/o Shri Jeevraj Singh, Aged About 47
Years, B/c Rajput, R/o Parawa, Tehsil Bidasar, District
Churu, Rajasthan.
4. Chhotu Singh S/o Shri Narayan Singh, Aged About 36
Years, B/c Rajput, R/o Parawa, Tehsil Bidasar, District
Churu, Rajasthan.
(Presently Lodged In District Jail, Churu) (In process to
transfer to Central Jail Jodhpur).
----Appellants
Versus
State Of Rajasthan, Through P.P.
----Respondent
Connected With
D.B. Criminal Appeal No. 117/2018
1. Manjit Singh, S/o Shri Hukam Singh, B/c Ravna Rajput,
aged about 37 years, R/o Sanvrad, Tehsil Ladnun, Dist.
Nagaur.
2. Monti Singh @ Mahipal Singh, S/o Sh. Kiran Singh, B/c
Rajput, aged about 30 years, R/o Bichava, Tehsil-
Didwana, Khuhkhuna Police Station, Dist. Nagaur.
(Lodged in District Jail, Churu)
----Appellants
Versus
State Of Rajasthan, Through PP
----Respondent
For Appellant(s) : Mr. R.K. Charan.
Mr. Dhirendra Singh
Ms. Priyanka Borana.
For Respondent(s) : Mr. B.R. Bishnoi, AGC.
Mr. J.S. Choudhary, Sr. Advocate
assisted by Mr. Pradeep Choudhary
and Ms. Sampati Choudhary.
(Downloaded on 17/12/2021 at 08:59:15 PM)
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HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE RAMESHWAR VYAS
JUDGMENT
Judgment pronounced on ::: 17/12/2021
Judgment reserved on ::: 17/09/2021
Reportable
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellants herein have been convicted and sentenced as
below vide judgment dated 07.06.2018 passed by the learned
Additional Sessions Judge, Sujangarh, District Churu in Sessions
Case No.24/2011:
Offences Sentences Fine Fine Default
Under Section sentences
302/149 IPC Life Imprisonment Rs.10,000/ 6 Months'
- Additional
Imprisonment
148 IPC 3 Years' R.I.
All the substantive sentences were ordered to run concurrently.
2. Being aggrieved of their conviction and sentences, the
appellants have preferred these two appeals under Section 374(2)
Cr.P.C. Since both these appeals arise out of a common Judgment,
they have been heard and are being decided together.
3. Facts relevant and essential for disposal of the appeals are
noted hereinbelow:
The complainant Ramnarayan son of Rameshwar (PW-3)
presented a written report (Ex.P/17) to the SHO, Police Station
Sujangarh on 29.06.2011 at the Government Hospital, Sujangarh
alleging inter alia that he was working as a salesman at a country
(3 of 30) [CRLAD-134/2018]
liquor shop in the village Ganoda. On the same day i.e.
29.06.2011, at about 01.50 pm., he was sitting at the shop with
his brother Rakesh, Ramniwas Kothyari and Mobaram at which
point of time, two Scorpio vehicles, one having the number plate
No.RJ-27-UA-8553 and the other one being unnumbered, came
and stopped in front of the shop.
Ram Singh, Chhotu Singh, Mahavir Singh, Anand Pal Singh,
Manjit Singh, Vicky Singh, Bhawani Singh, Jeetu Singh, Bhagwan
Singh, K.D. Charan, Pratap Singh, Mahendra Singh, Datar Singh
and Narpat Singh Rajput, got down from the Scorpio vehicles and
immediately on getting down, they started indiscriminate firing in
which, one shot hit his brother Rakesh who died on the spot.
On the basis of this report, an FIR No.142/2011 (Ex.P/62)
came to be registered at the Police Station Sujangarh for the
offences punishable under Sections 302, 147, 148 and 149 IPC
and Sections 3/25 and 3/27 of the Arms Act. The accused persons
came to be arrested in the following sequence:
Name of the Accused Arrest Memo Date of Arrest
Ram Singh Ex.P/ 9 17/08/2011 at 05:30 PM
Kailash @ K.D. Charan ExP/12 06/01/2012 at 01:30 AM
Vicky Singh @ Rupendra Ex.P/23 05/06/2012 at 10:20 AM
Pal Singh
Monti Singh @ Mahipal Ex.P/28 06/06/2012 at 08:40 AM
Singh
Balbir Banuda @ Birbal Ex.P/37 18/06/2012 at 08.30 AM
Singh
Manjit Singh Ex.P/27 31/07/2012 at 05:30 PM
Anand Pal Singh Ex.P/20 11/07/2013 at 12:15 PM
Mahavir Singh ExP/31 07/06/2015 at 12:30 PM
Pratap Singh ExP/46 07/07/2015 at 01:10 PM
Chhotu Singh ExP/49 23/06/2016 at 03:05 PM
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4. Thorough investigation was undertaken. Bhawani Singh,
Jeetu Singh, Bhagwan Singh, Mahendra Singh, Datar Singh and
Narpat Singh, though named in the FIR, were not found involved
in the commission of the crime. Upon completing investigation,
charge-sheets came to be filed against the accused persons
(whose names are set out in the above chart) in the court of the
Chief Judicial Magistrate, Sujangarh. Three of the charge-sheeted
accused namely Balbir Banuda, Anand Pal Singh and Pratap Singh
passed away during pendency of the trial/appeal.
As the offence under Section 302 IPC was exclusively
Sessions triable, the case was committed to the court of Additional
Sessions Judge, Sujangarh, District Churu for trial where charges
were framed against the accused persons for the offences
punishable under Sections 148 and 302/149 IPC. The accused
Vicky Singh escaped from custody and thus, his trial was
separated vide order dated 14.11.2017. The remaining accused
denied the charges and claimed trial. The prosecution examined
as many as 36 witnesses and exhibited 63 documents to prove its
case. Upon being questioned under Section 313 Cr.P.C. and when
confronted with the allegations set out in the prosecution case, the
accused refuted the same and claimed to have been falsely
implicated. However, no oral evidence was led in defence.
After hearing the arguments advanced by the learned Public
Prosecutor and the defence counsel and, appreciating the
evidence available on record, the learned trial court proceeded to
convict and sentence the appellants as above. Hence this appeal.
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5. Sarva Shri Ravindra Charan and Shri Dhirendra Singh,
Advocates representing the appellants, vehemently and fervently
contended that the entire prosecution case is false and fabricated.
The incident neither happened at the place nor in the manner
alleged by the prosecution witnesses. As many as 14 persons were
named as accused in the FIR of which, 6 were exonerated by the
investigating agency concluding that they were not even present
at the spot during the incident. This conclusion of investigating
agency was never questioned. The accused Vicky Singh and Monti
Singh ere not named in the FIR yet they were charge-sheeted on
exaggerated allegations of the witnesses. The story set up by the
material prosecution witnesses, namely the first informant
Ramnarayan (PW-3) and Govind Ram (PW-6) that as many as 14
accused came to the spot in two Scorpio vehicles armed tooth and
nail and that they indiscriminately fired gunshots towards the
liquor shop, is totally false and fabricated because not a single
empty cartridge, wads of the fired cartridges or the bullets were
recovered from the place of the incident when the I.O. inspected
the same and prepared the site inspection plan (Ex.P/6). It was
further contended that Ramnarayan and Govind Ram claimed that
while the firing was going on, they escaped from the liquor shop
through a window and when they returned to the spot, they saw
the dead body of Rakesh lying on the platform outside the shop.
Shri Charan and Shri Dhirendra Singh contended that this story as
portrayed by the witnesses Ramnarayan and Govind Ram, in their
evidence, is patently false because when site inspection was
undertaken by the I.O., he did not notice the presence of any
window in the building where the country liquor shop was being
run. They further contended that if at all, the witnesses had made
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an attempt to run outside from the main gate of the shop while
the incident was going on, then they would have not escaped
unscathed and would have definitely got hit by the gunshots being
made by the assailants. It was further contended that the
evidence of the material eye-witnesses is contradicted by the
medical evidence because whilst the eye-witnesses claimed that
numerous accused were indiscriminately firing towards the liquor
shop and many of these shots hit Rakesh, but when the
postmortem was carried out, only a single wound caused by
gunshot was noticed by the Medical Jurist Dr. Dileep Soni (PW-19)
and thus, the theory of indiscriminate firing by multiple accused
persons, is falsified.
It was further contended that the prosecution witnesses tried
to portray at the trial that the fatal gunshot, which was fired at
Rakesh, was made from a distance of about 15-20 feet. However,
when the Medical Jurist conducted postmortem upon the dead
body, he noticed that the gunshot wound had blackened edges
which fact completely demolishes evidence of eye-witnesses
regarding the distance from where the shot was fired. The fact
that the exit wound was lower than the entry wound, also
discredits the claim of the witnesses that the fatal gunshot was
fired by the assailant while standing on the road.
Learned defence counsel further contended that as per the
statements of the eye-witnesses, the liquor shop was being
operated in the building owned by Narpat Singh who was named
as an accused in the FIR. However, while deposing in the Court,
the first informant Ramnarayan did not name Narpat Singh as
being one of the assailants. They urged that after Rakesh got
injured, he was taken to the Government Hospital by Narpat Singh
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in his own vehicle. As per them, Narpat Singh undoubtedly was
present at the spot well before the incident began and thus, he
was the only independent witness of the incident but he was
intentionally withheld by the prosecution and hence, an adverse
inference needs to be drawn in this regard. On these grounds, the
defence counsel implored the Court to accept the appeal, set aside
the impugned Judgment and acquit the accused appellants of the
charges.
6. Per contra, learned Public Prosecutor and Shri J.S.
Choudhary, learned Senior Counsel assisted by Shri Pradeep
Choudhary, Advocate representing the complainant, vehemently
and fervently opposed the submissions advanced by the
appellants' counsel. They urged that the appellants are hardened
criminals and had formed a gang which rampantly indulged in
extortion and blackmailing. On the fateful day, they had indulged
in an incident of firing at some other place and were trying to
escape. They reached the shop of the complainant and were
planning to indulge in some other nefarious activities. At this point
of time, victim Rakesh came out of the shop and on seeing him,
the accused persons, without any justification, started firing
gunshots towards him in an indiscriminate manner. One of the
gunshots hit the deceased Rakesh and proved fatal. Regarding the
so-called infirmities/ contradictions appearing in the evidence of
prosecution witnesses, the contention of learned Public Prosecutor
and the complainant's counsel was that trivial contradictions are
bound to appear in the testimony of truthful witnesses but their
evidence cannot be discarded merely because of such trivial
contradictions.
(8 of 30) [CRLAD-134/2018]
They contended that the incident had overtones of a terrorist
like attack and thus, the witnesses would naturally be terrified and
it is totally unnatural to expect that they could give a report in a
composed manner after having been traumatized by such an act.
They thus urged that the appellants do not deserve any
indulgence by this Court in appeals which are fit to be dismissed.
7. We have given our thoughtful consideration to the
submissions advanced at bar and have carefully gone through the
impugned Judgment as well as the record.
8. For appreciating the contentions advanced at bar, the
evidence of the material prosecution witnesses needs to be re-
appreciated.
It may be stated here that the statements of some of the
prosecution witnesses were recorded twice because the accused
Mahavir Singh, Pratap Singh and Chhotu Singh were arrested at a
later stage and the trial had to be conducted de-novo.
9. Firstly, we deliberate upon the allegations as levelled in the
written report (Ex.P/17) submitted by Ramnarayan (PW-3). In this
report, Ramnarayan alleged that as many as 14 accused came to
his shop in two vehicles and immediately on reaching there, they
started indiscriminate firing with their respective firearms and that
one of the gunshots hit Rakesh resulting in his death. After
investigation, as many as 6 of these accused persons including
Narpat Singh, were not found involved in the crime and were
exonerated. The prosecution made no attempt whatsoever to seek
addition of these persons as accused in the case by invoking
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Section 319 Cr.P.C. The accused appellant Monti Singh and the
absconding accused Vicky Singh were not named in the FIR.
Hence, apparently, the informant made a clear attempt to over-
implicate the names of accused persons in the FIR. Thus, without
any doubt, the prosecution case has lost a great deal of credibility
as there was a wholesale implication of the accused persons in the
FIR and this fact would have to be kept in mind when the evidence
of the witnesses is evaluated.
10. Now, we proceed to deliberate upon the evidence of
Ramnarayan (PW-3). While testifying on oath, Ramnarayan
alleged that he was engaged as a salesman at the Ganoda liquor
shop, the licence whereof was issued in the name of Govind Ram.
On the fateful day, he, his brother (the deceased Rakesh),
Ramniwas and Mobaram were sitting at the shop. The time was
between 01.30-02.00 pm. Two Scorpio vehicles came from the
direction of Sujangarh. Anand Pal Singh, Ram Singh, Vicky, Balbir
Banuda and 2-3 other men got down from the first vehicle. He
could identify the driver if he saw him. Anand Pal Singh was
having a double barrel gun. Balbir Banuda was having a weapon of
1½ feet length. Another man was having a Mauser gun. In the
second vehicle, which followed en suite Mahavir Singh, Chhotu
Singh, K.D. Charan, Pratap Singh, Bhawani Singh, Jeetu Singh,
Datar Singh, another Pratap Singh and Mahendra Singh were
present and so were 2-3 unknown men. Anand Pal Singh, Balbir
Banuda and the unknown man started firing with guns towards
the informant and his companions. One fire hit Rakesh who died at
the spot. The assailants escaped in their vehicles after firing the
gunshots. Then they took Rakesh to Sujangarh. No one other than
(10 of 30) [CRLAD-134/2018]
Rakesh got injured in the incident. Rakesh was declared dead at
the Sujangarh Hospital. He lodged the written report (Ex.P/17) at
the Police Station Sujangarh. He saw the dead body of his brother.
The bullet had passed through leaving a punctured wound on the
body.
In cross-examination, the witness stated that Narpat Singh
was not accompanying them when they took Rakesh to the
Sujangarh Hospital. He was confronted with his police statement
(Ex.D/1) wherein, it was noted that Narpat Singh was sitting on
the first floor at the time of the incident. He was called down and
then Rakesh was taken to the hospital in his Bolero vehicle. The
witness denied this part of his previous statement. He tried to
feign ignorance to the fact whether Narpat Singh was sitting on
the first floor or not. He stated that they took the vehicle of
Narpat Singh without asking him. The key was lying in the vehicle.
The witness was asked questions to controvert his claim of being
employed as salesman on the liquor shop. He was also confronted
with the significant improvements (regarding particulars of
weapons held by the accused which was introduced by the witness
for the first time in his sworn testimony) which he could not
reconcile. He stated that the accused started firing as soon as they
got down from the vehicles. They kept on firing with their
respective weapons for about 5-7 minutes. He, Ramniwas and
Mobaram were not in the liquor shop at the time when the
accused persons were firing, but they were present in the
adjoining shop. Rakesh was sitting besides them. He denied the
suggestion that other than the gate of the shop, there was no
aperture in the building. Some of the bullets landed in the shop as
well. He could not count as to how many bullets fell there. The
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police searched the place of incident carefully. He could not say
whether any empties/bullets were found at the spot.
He was confronted regarding the contradictions in his
testimony vis-a-vis the written report (Ex.P/17) to which he
offered an explanation that he might have written the Part 'C to D'
of Ex.P/17 "eSa ns"kh "kjkc Bsdk xzke xuksMk ij cSBk gqvk Fkk esjs ij esjk
HkkbZ jkds"k o jkefuokl dksfB;kjh fuoklh ewUnMk ,oa eksckjke tkV fu-
xuksMk esjs ikl Bsdk esa cSBs gq, FksA " because he was in a state of
panic. The accused got down from their vehicles and started
shooting indiscriminately. One bullet struck Rakesh from 20 feet
distance where the offenders were standing. He could not say as
to whether the bullet which hit Rakesh fell out after passing
through his body. Rakesh was standing outside the shop when the
bullet hit him. Significant quantity of blood spilled where Rakesh
had fallen down. When the vehicles stopped outside the shop,
Rakesh went out to have a look and indiscriminate gunshots were
fired at him. He stated that the blood fell on a big area on the
platform but the police lifted the blood only from one tile vide
recovery memo (Ex.P/7). The bullet, which hit Rakesh, passed
through his body but the police could not find the same. He could
not identify the weapon with which the shot was fired at Rakesh.
He tried to explain that Rakesh was standing just near the door of
the shop. The level of the road and the platform, where Rakesh
was standing, was almost equal. In the next breath, witness
stated that there were steps of 3 feet for climbing upto the shop.
He admitted that Mahavir Singh, Vicky Singh, Ram Singh, Chhotu
Singh, Pratap Singh and K.D. Charan did not fire gunshots, but
they were hurling exhortations to kill. When confronted with the
police statement (Ex.D/1), the witness admitted that he stated
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therein that only Anand Pal Singh, Balbir Banuda and the unknown
man fired the guns. A very significant suggestion in reference to
the police statement was given to the witness wherein, it is
recorded that he escaped from the window of the shop when the
accused opened the gunfires. This portion of the 161 Cr.P.C.
statement of Ramnarayan (Ex.D/1) was marked 'I to J' and reads
as below:
"......xksfy;ka pyus ds dkj.k ge Mj ds ekjs f[kM+dh esa ls fudy dj
ihNs dh rjQ Hkkx x;s ......"
The witness denied to have given this part of the statement
to the police. Suggestions were given to him that he was, as a
matter of fact, not employed as a salesman at the liquor shop;
that Rakesh did not get shot at the liquor shop; that no incident of
indiscriminate gunfire for a period of of 5-7 minutes took place at
the liquor shop and that he did not take Rakesh to the Hospital.
The witness offered bald denial to these suggestions. After the
appearance of the accused Monti Singh @ Mahipal Singh and
Chhotu Singh, the witness was again examined on oath. In cross-
examination, he admitted that in the previous deposition recorded
on 08.02.2016, he did not take the name of Manjit Singh as being
a participant in the crime. He was also confronted with the fact
that there was no allegation in the written report (Ex.P/17) that
Monti Singh @ Mahipal Singh was the driver of the vehicle in
which Anand Pal Singh was present. He could not explain the
omission of the name of Monti Singh in the written report and the
previous statement (Ex.D/1) wherein, it was categorically
recorded that he did not know the name of the driver of the
vehicle in which, Anand Pal Singh was present.
(13 of 30) [CRLAD-134/2018]
11. Ramniwas (PW-7) also claimed to be an eye-witness of the
incident. In his sworn testimony, he alleged that there were four
partners in the country liquor shop at Ganoda namely Bajrang,
Govindram, Nanuram and Sukhdev. The licence was issued in the
name of Govind Ram. An authorisation (Naukarnama) had been
issued in his name. Mobaram and Ramnarayan were employed as
salesmen in the shop which was located in the field of Narpat
Singh. On the fateful day, he, Ramnarayan, Rakesh, Govind Ram
and Mobaram were sitting in the shop adjoining the liquor shop.
The time was around 01.45-02.00 pm. Two Scorpio vehicles came
towards the shop from Sujangarh. One was having the number-
plate No.RJ-27-UA-8553 and the other was unnumbered. Ram
Singh, Anand Pal Singh, Manjit Singh, Vicky, Balbir Banuda and
two men whose names he did not know, were present in the first
vehicle. The other vehicle was being driven by Mahavir Singh,
Chhotu Singh, Pratap Singh, K.D. Charan and 2-3 unknown men
were present in that vehicle. Anand Pal Singh was having a 12
Bore double barrelled gun. Balbir Banuda was having a weapon of
1½ feet. One man was having a Mauser gun. They got down from
the vehicles. A signal was given by Ram Singh whereafter, the
assailants holding the weapons, started making indiscriminate
fires. Manjit Singh, Vicky Singh, Chhotu Singh, Mahavir Singh,
Pratap Singh and K.D. Charan were hurling exhortations to kill. At
that time, Rakesh got a call and therefore, he was moving out of
the shop when he got hit by the bullet. There was a partition near
the window of the shop where the witness claimed to have hidden
with his companions. The accused proceeded towards village
Sarodiya after firing the gunshots. They came outside and saw
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that Rakesh was lying on the parapet outside the shop. They
called out for Narpat Singh whose vehicle was parked outside.
Rakesh was boarded on to the vehicle and was taken to the
Government Hospital, Sujangarh where the doctors declared him
dead.
On being cross-examined, the witness was confronted with
his police statement (Ex.D/3) which was recorded as late as on
08.07.2011. The witness stated that he did not know why police
did not record his statement earlier. He was present in the hospital
and thereafter, he was in the village. He himself did not approach
the police officials to tell them that he had seen the incident with
his own eyes. The licence of the shop was issued in the name of
Govind Ram. A partnership document was prepared but he did not
give it to the police as they did not ask for it. The fact regarding
the partnership was not intimated to the Excise Department. This
agreement was private/informal. He did not give his authorisation
letter to the police. The authorisation of Ramnarayan as salesman
was issued by the Excise Department but the document was not
given to the police. Rakesh was neither a partner in the shop nor
was he employed as a servant thereupon. He had casually come to
the shop to meet them. The witness was confronted with his police
statement (Ex.D/3) regarding the omission of the date of the
incident. A question was put to the witness that Narpat Singh used
to reside on the first floor of the building, but he refuted it by
saying that Narpat did not live there permanently but came
occasionally. Extensive cross-examination was made from the
witness regarding the sequence in which, Rakesh received the
gunshot injury. The witness tried to evade the suggestion that
while giving the police statement, he had shown presence of
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partition in the shop. He explained that the platform tiles were
stained with the blood which spilled out from the gunshot wound
of Rakesh. The vehicles stopped at a distance of about 15 feet
from the shop and the shots were fired from a distance of about
10 feet. There was a small window in the shop where they were
sitting but they did not try to escape from the window. The liquor
shop was at a height of about 1 foot from the road. The bullet hit
Rakesh while he was standing. He denied the suggestion that he
was not present at the spot.
It may be stated here that the witness Ramniwas tried to
introduce Govind Ram as an eye-witness of the incident, but this
attempt of the witness brings his credibility under a grave cloud of
doubt because the first informant Ramnarayan did not utter a
word about the presence of Govind Ram at the shop when the
incident took place. Therefore, a serious doubt is created that the
witness Ramniwas was actually not present at the spot at the time
of the incident.
12. The third person claiming to be an eye-witness of the
incident, was Mobaram who was examined as PW-20. In his sworn
testimony, the witness stated that the incident took place between
01.30 to 02.00 pm. He, Narpat Singh and Chain Singh were on the
roof. A Scorpio vehicle came from Sujangarh and was parked near
the shop. Ramniwas, Ramnarayan and Govind Ram were sitting
inside. The occupants of the Scorpio vehicle got down and started
hurling abuses. At that time, Rakesh was standing outside the
shop. The assailants asked him as to whether he was involved in
the liquor shop incident of the previous day to which Rakesh
offered a denial. Balbir Banuda, Ramdhan Fauji and 2-3 unknown
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persons were sitting inside the vehicle. Ramdhan Fauji tried to
open fire with his gun at the shop but could not succeed. Then,
Balbir Banuda gave another weapon to Ramdhan Fauji. He fired
below the cooler and the shot hit the wall. The persons, who were
present in the shop, ran away towards the field. He was standing
in the liquor shop and thereafter closed the channel gate as well
as the iron gate of the shop and asked Rakesh to run away.
Rakesh tried to enter the other shop on which, Ramdhan Fauji
again fired his gun towards him. The bullet hit Rakesh. The
accused continued to fire gunshots. Rakesh fell down in the middle
of the gate of the shop. The witness refused to identify the
accused persons as being the assailants involved in the incident.
Even when cross-examined by the learned Public Prosecutor after
being declared hostile, he stuck to the version that Rakesh was
shot by Ramdhan Fauji.
Apparently, the witness was declared hostile by the learned
Public Prosecutor only on the aspect of the identification of some
of the assailants. However, the remaining part of his evidence
wherein, the witness described the incident, completely
contradicts the version as stated by the star prosecution witnesses
Ramnarayan (PW-3) and Ramniwas (PW-7).
13. Govind Ram (PW-6) was also portrayed to be an eye-witness
of the incident. However, he was discarded by the trial court after
discussing the evidence. After perusing the testimony of Govind
Ram, we are in conformity with the findings recorded by the trial
court that Govind Ram is a concocted witness and was not present
at the spot.
(17 of 30) [CRLAD-134/2018]
14. The witness Raghuveer Singh (PW-8) did not state anything
about the incident and was declared hostile by the learned Public
Prosecutor. Even upon cross-examination by the learned Public
Prosecutor, he did not agree to any of the suggestions. Hence, the
evidence of this witness is inconsequential so far as the
prosecution case is concerned.
15. Jaisingh Dhanak (PW-9) was posted as the Maalkhana
Incharge at the Police Station Sujangarh at the relevant point of
time. His evidence is more or less formal in nature.
16. Ranjeet Singh (PW-10), who was posted as ASI at the Police
Sujangarh, gave formal evidence regarding the arrest of accused
Vicky Singh @ Rupendra Pal Singh from the court premises at
Sunjangarh.
17. Sultan Singh (PW-11), Constable, gave evidence regarding
transmission of sample bags of the case at hand from the Police
Station Sujangarh to the FSL, Jodhpur. The evidence of this
witness is also, more or less, formal in nature because on going
through the entire prosecution case regarding recoveries,
apparently, the articles, which were carried by this witness, do not
connect the accused with the alleged incident in any manner
whatsoever.
(18 of 30) [CRLAD-134/2018]
18. Sheeshpal (PW-12) was associated in the arrest of the
accused Vicky Singh @ Rupendra Pal Singh vide arrest memo
(Ex.P/23) and his evidence is also formal.
19. Kan Singh (PW-13) was posted at the Police Station
Sujangarh on 31.07.2012. He gave formal evidence regarding the
arrest of the accused Manjit Singh vide arrest memo (Ex.P/27)
and the accused Monti Singh @ Mahipal Singh on 06.06.2012 vide
arrest memo (Ex.P/28).
20. Kailashdan (PW-14) was associated as a witness in the arrest
memo of accused Monti Singh @ Mahipal Singh (Ex.P/28).
21. Madan Beniwal (PW-15) was posted as SHO at Police Station
Dangiyawas on 30.05.2012. He gave evidence regarding
submission of written report by Ranjeet Singh, S.I.P. with a
revolver allegedly seized from the accused Mahipal Singh and an
Alto Car bearing registration No.RJ-01-CA-8533. He registered the
FIR No.84/2012 on the basis of the report given by Ranjeet Singh.
The evidence of this witness is also formal in nature and almost
inconsequential, so far as the case at hand is concerned.
22. Chhotelal (PW-16) was posted as Maalkhana Incharge in the
SOG, Jaipur. He gave evidence that on 15.02.2012, some mobile
phones, cash amount of rupees 7 lacs and a black bag were
deposited in the Maalkhana by the Additional Superintendent of
Police Shri Piyush Dixit. However, the evidence of this witness is
also inconsequential because these seizures were allegedly made
from the accused Anandpal Singh who has passed away.
(19 of 30) [CRLAD-134/2018]
23. Pannalal (PW-17) was associated in the arrest of the accused
Mahavir Singh vide arrest memo (Ex.P/31). The evidence of this
witness is also formal in nature.
24. Dr. Dileep Soni (PW-19) was one of the members of the
Medical Board, which conducted autopsy upon the dead body of
Rakesh. The witness stated that the Board, upon conducting
autopsy, noticed a circular wound admeasuring 1.5 X 1.5 inch
below the naval of the deceased. The margins of the wound were
inverted. The direction of the wound was descending and upon
opening the abdominal cavity, excessive bleeding was noticed
therein. Almost three liters of blood was found in the cavity. The
small intestine was perforated at number of places. An exit wound
admeasuring 2.5 X 2.5 inches with lacerated averted margins was
noticed just beside the vertebrae. There was a perforation of 1 X 1
inch in the main blood vessel near the abdomen. Neither any
bullet nor any pellet was recovered from the abdominal cavity. An
X-ray examination was undertaken to confirm this fact. The injury
was caused by a firearm and was sufficient in the ordinary course
of nature to cause death.
In cross-examination, the following significant facts were
admitted by the Medical Jurist:
(i) the entry wound was having slight blackening which indicated
infliction of firearm injury from a close range. He, on his own,
explained that the injury, which was caused to the deceased, could
have been received by a gunshot fired from a distance of 15 feet.
(20 of 30) [CRLAD-134/2018]
(ii) A pertinent suggestion was given by the defence that the
gunshot causing the fatal wound to the injured was caused from a
distance of 1½ feet which the witness denied.
(iii) The witness admitted that the direction of the wound was not
horizontal but was descending inwards. There was a difference of
1½ inch in the levels of the entry wound and the exit wound.
From a perusal of the testimony of this witness, it can be
easily inferred that firstly, the entry wound, which was noticed on
the abdominal area of the deceased, was having blackened edges.
Neither any bullet nor any pellet was recovered from inside the
body. The bullet/ projectile travelled downwards from the entry to
the exit.
We would be discussing the effect of testimony of this
witness in detail after appreciation of I.O.'s testimony.
25. The initial investigation of the case, which was the most
important part, was undertaken by Shri Jagdish Bohra (PW-34)
who was posted as SHO of the Police Station Sujangarh on the
date of the incident i.e. 29.06.2011. While deposing on oath,
Jagdish Bohra stated that at about 01.40 PM, he got telephonic
information. from an unknown man who told that gunshots had
been fired at Bhojlai Bas in which, three persons had been injured
and were taken to the Government Hospital Sujangarh. The
witness constituted a team of police officials and immediately
rushed to the Government Hospital Sujangarh. First Information
Report was submitted to him on 29.06.2011 at 03.15 PM
(Ex.P/62). There, the witness seized the blood stained clothes and
other articles of the victim Rakesh vide memo (Ex.P/2). The Fard
Surathaal Lash (Ex.P/4) was prepared. The dead body was handed
(21 of 30) [CRLAD-134/2018]
over to the relatives vide memo (Ex.P/5). After completing the
formalities at the hospital, the witness proceeded to the place of
incident and prepared the Site Inspection Plan (Ex.P/6) and the
site description (Ex.P/6A). He seized a blood stained marble tile
vide memo (Ex.P/7) and a plain marble tile vide memo (Ex.P/8).
He proved the Rojnamcha entry (Ex.P/58) pertaining to the
departure of the police team to the hospital at Sujangarh and the
return of the team after conducting the essential steps of
investigation. In the Rojnamcha entry made at 11.45 pm., it is
mentioned that injured persons had been referred to Sikar and
Jaipur and thus, Iliyas Khan ASI was dispatched to Jaipur for
recording their statements. It is also recorded that the same set of
assailants, who had previously fired gunshots near the petrol
pump, also fired at the Ganoda liquor shop in which one person
expired. The relatives of the deceased refused to accept the dead
body, etc. The witness proved the seized articles viz. clothes of the
deceased, his personal articles i.e. driving licence, identity card,
credit card, photographs, purse, etc. and the pieces of the marble
tiles on which articles were marked.
In cross-examination, the witness was asked as to where the
report (Ex.P/17) was written. He was confronted with the
omissions and the contradictions in the FIR which we have
discussed while elaborating upon the testimony of Ramnarayan
(PW-3). The witness admitted that he did not collect any
document pertaining to the licence of the liquor vend. He admitted
that the names of the accused Balbir Banuda and Monti Singh @
Mahipal Singh were not mentioned in the report (Ex.P/17).
Likewise, there was an omission in the report (Ex.P/17) regarding
the weapons held by Anandpal Singh and Balbir Banuda. It was
(22 of 30) [CRLAD-134/2018]
also not mentioned in the report that Anandpal Singh, Balbir
Banuda and one more person, started firing after coming at the
liquor shop. The witness was also asked questions regarding
omissions in the police statement of Ramnarayan (Ex.D/1).
Extensive cross-examination was made from the witness
regarding the observations noted in the Site Inspection Plan
(Ex.P/6). He admitted that it was not recorded in the Site
Inspection Plan (Ex.P/6) and the site description memo (Ex.P/6A)
as to the exact position from where, the accused fired gunshots at
the victim. The most important fact which the witness admitted in
reference to Site Inspection Plan (Ex.P/6) was that while
conducting the site inspection, he did not notice any marks of
gunfires on the walls, the door frame and the door of the premises
in question. Neither pellets nor bullets were found lying at
the crime scene. No window was available in the liquor
shop as per the Site Inspection Plan (Ex.P/6). The witness
admitted that had any window existed, he would have definitely
mentioned it in the map (Ex.P/6). When he reached the spot, the
shop was open and the complainant was present there. A specific
suggestion was given to the witness that he did not notice any
marks of violence and that is why, he did not depute any
policeman to secure the crime scene. He also admitted that as per
the Site Inspection Plan (Ex.P/6), no partition wall was noticeable
between the rooms marked as 'B and C'. He did not find marks of
multiple gunshots having been fired nearly the liquor shop.
The witness admitted that he was informed during
investigation that Rakesh had been taken to the hospital in the
vehicle of Narpat Singh. However, he did not inspect the said
vehicle. Ramnarayan did not meet him before the site inspection
(23 of 30) [CRLAD-134/2018]
memo was prepared. He did not make any investigation or inquiry
from Narpat Singh or from people of the neighbouring area. It was
not mentioned in memorandum Ex.P/1 (seizure memo of the
clothes of the deceased) that two holes were noticed in either the
vest, trousers or the shirt worn by the deceased at the time of the
incident. The witness admitted that no foreign bodies i.e. pellets
or bullets were found in the body of the deceased when
postmortem was undertaken. The witness was given suggestions
regarding unfair investigation which he denied. The witness also
proved the FSL report (Ex.P/63), however, as no incriminating
recovery allegedly effected from the accused was sent to the FSL,
the same is more or less academic in nature.
26. The investigation was subsequently handed over to Nitesh
Arya (PW-22) who was posted as C.O. Police Station Sujangarh on
30.06.2011. This witness recorded the statements of the
witnesses, arrested the accused Ram Singh on 17.08.2011 vide
arrest memo (Ex.P/9) and recovered number plates bearing
fabricated numbers of one of the vehicles allegedly used in the
incident. The accused Kailash @ K.D. Charan was arrested vide
arrest memo (Ex.P/12) on 06.01.2012 and at his instance, the
place of incident was verified. The exercise of verification of place
of incident was undertaken at the instance of the accused Monti
Singh @ Mahipal Singh. The accused Balbir Banuda was arrested
on 18.06.2012 and the place of incident was verified at his
instance. The accused Anandpal Singh was arrested on
11.07.2013 vide arrest memo (Ex.P/20) and on his information, it
was found that the pistol used in firing at the Ganoda liquor shop
(24 of 30) [CRLAD-134/2018]
had been seized by the SOG and the record of the SOG was
exhibited by the witness.
Upon an overall appreciation of the evidence of this witness
as well, it becomes clear that his evidence is also formal in nature
as no incriminating fact was collected by the I.O. which can
connect the accused persons with the crime. The witness admitted
that he did not recover any firearm or bullets, etc. from the
accused during investigation. Neither he nor the previous I.O.
found any pellets or bullets or empty cartridges, etc. at the place
of incident. On conducting investigation, he did not find Narpat
Singh involved in the crime and stated that his name had been
falsely introduced in the FIR. He also did not find the accused
Bhawani Singh, Jeetu Singh, Bhagwan Singh, Mahendra Singh and
Datar Singh involved in the incident and stated that these persons
were falsely portrayed as accused in the FIR. The witness
admitted that number plates which he claimed to have seized from
the accused Ram Singh were not exhibited in his evidence.
From the evidence of this witness, it can be concluded
beyond all manner of doubt that:-
(i) there has been a wholesale implication of the names of
the accused in the FIR and in the statements of the material
prosecution witnesses;
(ii) that the witness did not notice bullet marks at the place
of incident.
(iii) no fired bullets/pellets or empty cartridges were
recovered from the place of incident;
The fact that neither Jagdish Bohra (PW-34) nor Nitesh Arya
(PW-22), the two investigating officers, could find a single of
bullets/ pellets or empty cartridges allegedly fired by the
(25 of 30) [CRLAD-134/2018]
assailants at the place of incident, gives rise to a strong indication
that the incident did not take place in the manner and at the place
as alleged by the eye witnesses.
27. For the sake of repetition, it may be noted that the Medical
Jurist Dr. Dileep Soni (PW-19), referred to supra, clearly admitted
in his testimony that the bullet which hit the deceased Rakesh,
entered from his abdominal area and exited from near the
vertebrae. Since the projectile passed through the body of the
deceased, manifestly it must have fallen down at the crime scene.
As claimed by the alleged eye-witnesses Ramnarayan (PW-3) and
Ramniwas (PW-7), Rakesh was standing on the platform outside
the liquor shop facing the road from where, the gunshots were
fired towards him. As per the positions marked in the Site
Inspection Plan (Ex.P/6), Rakesh was shown standing at mark 'X'
which is outside the room mark 'B'. It is only at that place, the
I.O. claimed to have found blood on the floor tiles. This mark 'X' is
approachable from the road by climbing a few stairs. In the Site
Inspection Plan, there is no mention of the place from where, the
accused allegedly fired the gunshots. Since the Site Inspection
Plan (Ex.P/6) bears the signatures of the star prosecution witness
Ramnarayan (PW-3), manifestly, the witness must have pointed
out to the I.O. the place from where the accused persons fired the
gunshots. However, there is complete absence of this description
in the Site Inspection Plan (Ex.P/6) and the site description memo
(Ex.P/6A). Furthermore, if the gunshots had been fired from the
direction of the road and, as the entry wound was found on the
abdominal area of Rakesh, manifestly, he must be facing the road
when he got hit by the gunshot. In that event, as the bullet/pellet
(26 of 30) [CRLAD-134/2018]
exited from the body of Rakesh, the projectiles were bound to
have fallen nearby the place where the deceased was standing or
even might have travelled into the room because a gate is shown
just behind the mark in the Site Inspection Plan (Ex.P/6). Thus, a
serious doubt is created that the deceased Rakesh did not receive
the firearm injury at the place and in the manner as alleged by the
prosecution witnesses Ramnarayan (PW-3) and Ramniwas (PW-7).
28. In addition thereto, we may take note of the fact that the
witness Ramniwas (PW-7) admitted that the accused were
standing at a distance of 10 feet while making the gunfires. The
shop is at a height of 1 foot from the road. Rakesh, received the
firearm injury in a standing position. The witness Ramnarayan
(PW-3) stated in his evidence that the gunshot which hit Rakesh
was fired from a distance of 20 feet. In reference to the evidence
of these witnesses, when we analyse the evidence of the Medical
Jurist Dr. Dileep Soni (PW-19), it becomes clear that there is a
grave contradiction in the ocular testimony vis-a-vis the medical
testimony. The Medical Jurist Dr. Dileep Soni (PW-19), while
conducting postmortem, noticed that the entry wound was having
blackened edges. As per the principles of medical jurisprudence
elaborated in celebrated text book "Modi's Medical
Jurisprudence and Toxicology", if blackening is noticed in a
firearm wound, it can be safely deduced that the muzzle of the
firearm would be at a distance of within 3-4 feet from the body of
the victim. The entry wound which was noticed on the body of the
deceased, was higher than the exit wound. The doctor clearly
stated that the projectile travelled downwards. Thus apparently,
the assailant must have fired the gunshot at the deceased from a
(27 of 30) [CRLAD-134/2018]
greater altitude. However, as per the statements of the eye
witnesses and the Site Inspection Plan (Ex.P/6), the victim was
standing on the platform of the shop which was at a height of
about 1 foot from the road whereas, the accused were standing on
the ground. Therefore, there was not even a faintest possibility of
the trajectory of the wound going downwards, had the fatal
gunshot been fired in the manner alleged by the prosecution
witnesses.
29. As a consequence and after appreciating the evidence of the
material prosecution witnesses, we are of the firm view that:
(i) the first informant and the material prosecution witnesses
intentionally tried to over-implicate a large number of persons as
accused in this case by naming them in the FIR and in their sworn
testimony;
(ii) As per the witnesses, the incident took place in the premises
which was owned by Narpat Singh. It was his vehicle which was
used to take Rakesh to the hospital. The witness Mobaram stated
that Narpat Singh was also one amongst those who took Rakesh
to the hospital. Despite that, Narpat Singh was named as an
accused in the FIR. But when the informant Ramnarayan (PW-3)
was examined on oath, he did not allege that Narpat Singh was
also one amongst the assailants;
(iii) Even though Narpat Singh was not found involved in the
crime, the investigating officer made no attempt whatsoever to
record his statement. Narpat Singh's evidence have been very
vital to reveal the true story;
(iv) there are grave contradictions in the statements of the
prosecution witnesses Ramnarayan and Mobaram as to how they
(28 of 30) [CRLAD-134/2018]
managed to escape from the shop in question because there was
no exit other than the gate outside which, Rakesh was allegedly
standing when the gunshots were fired at him. If the witnesses
had tried to escape from the same opening, they too would have
been hit. Some of the witnesses claimed that they escaped from a
window whereas, no such opening was seen in the building when
site was inspected. Thus, the very presence of the alleged eye-
witnesses at the place of incident becomes doubtful;
(v) the fact that the blackening was noticed on the entry wound of
the dead body of Rakesh when postmortem was conducted, clearly
indicates that the gunshot must have been fired from a distance of
not more than 3-4 feet. However, the witnesses Ramnarayan (PW-
3) and Ramniwas (PW-7) have clearly stated that the gunshots
were fired from a distance of 10-20 feet. Therefore, the testimony
of the material prosecution witnesses is totally contradicted by the
medical evidence;
(vi) In continuation, the fact that Rakesh was standing just
outside the shop on a platform at a height of about 1 foot from
the road level and as the assailants fired the gunshots while
standing on the ground, there was no possibility whatsoever that
the trajectory of the wound would be going downwards. However,
this fact was conclusively stated by the medical jurist in the sworn
testimony and was also noted in the postmortem report (Ex.P/32)
which again brings the credibility of the prosecution case under
doubt.
(vii) The projectile which hit Rakesh entered from the abdomen
and exited from the back. As per the prosecution story, Rakesh
was standing in front of the shop and was facing the road. In that
event, the projectile/projectiles which hit Rakesh and exited
(29 of 30) [CRLAD-134/2018]
through the wound and would definitely be found lying just
outside the shop or inside the room. However, both the
investigating officers admitted that they did not see any trace of
projectiles, be it the fired bullets or the empties, etc. at the place
of the incident. None of the prosecution witnesses gave any
reliable evidence regarding the motive behind the incident.
30. In wake of the discussion made herein above, we are in
agreement with the contention of the learned defence counsel that
the incident did not take place at the liquor shop and that Rakesh
might have received the gunshot injury at some other place. This
material lacuna in the prosecution case completely discredits the
testimony of the prosecution eye-witnesses. As many as 6 out of
the total 14 named accused persons, were exonerated by the I.O.
finding that they had been falsely implicated. As per the
prosecution witnesses, more than one assailants fired multiple
gunshots towards Rakesh and in the general direction of the liquor
shop. However, only one gunshot injury was found on body of
Rakesh and not a trace of bullets, pellets or empty cartridges,
wads, etc. were found at the crime scene. These aspects
completely destroy the credibility of evidence of the material
prosecution witnesses.
31. As an upshot and after analysing the entire record, we are of
the view that the prosecution has failed to lead convincing
evidence so as to seek affirmation of guilt of the accused persons
in this case. The prosecution story suffers from huge lacunas and
loopholes which are impossible to reconcile. The trial court
committed grave error of facts while appreciating the evidence
and recording the questioned findings for convicting the accused
(30 of 30) [CRLAD-134/2018]
appellants in the manner stated above. Hence, the impugned
Judgment cannot be sustained.
32. As a consequence, the impugned Judgment dated
07.06.2018 passed by the learned Additional Sessions Judge,
Sujangarh, District Churu in Sessions Case No.24/2011, is hereby
quashed and set aside. The appellants are acquitted of the
charges. The accused appellants Ramsingh and Manjit Singh
are in custody. They shall be released from prison forthwith if not
wanted in any other case. The accused appellants Kailashdan @
K.D. Charan, Mahvir Singh, Chhotu Singh and Monti Singh @
Mahipal Singh are on bail. They need not surrender and their
bail bonds are discharged
The appeals are allowed accordingly.
33. However, keeping in view the provisions of Section 437-A
Cr.P.C., each of the appellants is directed to furnish a personal
bond in the sum of Rs.40,000/- and a surety bond in the like
amount before the learned trial court, which shall be effective for
a period of six months to the effect that in the event of filing of a
Special Leave Petition against the present judgment on receipt of
notice thereof, the appellants shall appear before the Supreme
Court.
34. Record be returned to the trial court forthwith. A copy of this
order be placed in each file.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
1-Tikam Daiya/-
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