Jagdish And Ors vs State
2022 Latest Caselaw 5973 Raj/2

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                    D.B. Criminal Appeal No. 428/1989

 1. Jagdish son of Rameshwar
 2. Gopal son of Rameshwar
 both residents of Niyan Ki Dhani, P.S. Khatu Shyamji, District
 Sikar.
                                                            ----Accused-Appellant(s)
                                           Versus
 The State of Rajasthan
                                                                        ----Respondent(s)

For Appellant(s) : Mr. V.R. Bajwa, Senior Advocate, assisted by Mr. Amar Kumar and Mr. Manish Parmar For Respondent(s) : Mr. Javed Choudhary, A.G.A.

            HON'BLE MR. JUSTICE PANKAJ BHANDARI
                 HON'BLE MR. JUSTICE SAMEER JAIN

                                        Judgment

RESERVED ON                                    ::                           23/08/2022
PRONOUNCED ON                                  ::                           29/08/2022

(Per Pankaj Bhandari, J.)

1. The appellants have preferred this appeal aggrieved by the

judgment and order of conviction dated 28.11.1989 whereby the

appellants have been convicted for offences under Section 302

read with Section 34 and Section 323 of the Indian Penal Code

(hereinafter referred to as "the IPC") and have been sentenced to

undergo life imprisonment and a fine of Rs.5,000/- each. On non-

payment of fine, to further undergo three months simple

imprisonment for offence under Section 302/34 IPC and appellants

have been sentenced to one month simple imprisonment for

offence under Section 323 IPC.

(2 of 8) [CRLA-428/1989]

2. Succinctly stated the facts of the case are that an FIR was

lodged on 16.06.1986 by Malaram at 1.00 a.m. at Police Station,

Khatu Shyamji wherein it was mentioned that at about 4.00 p.m.,

the appellants and four other co-accused assaulted Ganpat Ram

near the well and then assaulted Ganpat Ram's wife - Smt.

Jadavali. After giving beating and on shouting of co-accused

Rameshwar, present appellants threw Smt. Jadavali into the well.

Thereafter, the informant climbed down into the well and held

Jadavali in his lap for about one hour and then she was exhumed

from the well. The police registered a case under Section 302 IPC

against the present appellants and four others and after

investigation, filed charge-sheet against six persons including the

present appellants. The appellants and the other charge-sheeted

accused denied the charges and sought trial, upon which, as many

as 14 witnesses were examined on behalf of the prosecution,

explanations of the accused were recorded under Section 313

Cr.P.C. and six witnesses were examined in defence. After hearing

the arguments, the trial Court acquitted four of the accused and

convicted the present appellants, aggrieved by the judgment of

conviction and the sentence, the appellants have preferred this

appeal.

3. It is contended by Mr. V.R. Bajwa, Senior Advocate appearing

for the accused appellants that the case of the present appellants

is akin to that of the other four charge-sheeted accused. In the

initial FIR lodged by Malaram, it was mentioned that all the six

persons gave beating to the deceased - Jadavali and thereafter,

five of them threw her into the well. It is further argued that

learned trial Court has observed that the witnesses Malaram (PW-

6) and Ganpat (PW-7) are not fully reliable and on the said basis,

(3 of 8) [CRLA-428/1989]

has acquitted four of the co-accused. It is also contended that

Padmaram (PW-1), Dhapli (PW-2), Balu (PW-3) and Mangla (PW-

4), who were the so-called eye witnesses, have not supported the

case of the prosecution and have turned hostile. It is further

contended that in the FIR and the statements recorded under

Section 161 Cr.P.C. of Malaram (PW-6) and Ganpat (PW-7)

allegation of giving beating to the deceased was on all the accused

and the allegation of throwing her in the well was on five of the

accused, however, later on, the witnesses have changed their

version and have levelled the allegation with regard to throwing

the deceased in the well against the present appellants only.

4. It is contended that the statements of Malaram (PW-6) and

Ganpat (PW-7) do not find support with the postmortem report of

the deceased. As per the doctor, the deceased did not have any

injuries on her back and the story as narrated by the prosecution

is untrue. It is also contended that Ganpat (PW-7), who happens

to be husband of the deceased, does not appear to be a

trustworthy witness for the very reason that he has sustained two

bruises, a superficial abrasion and a lacerated wound of the size

two and a half centimeter on his right lower leg and he was in

prefect condition and there is no reason stated as to why he did

not call for help to exhume his wife, then Malaram (PW-6) went

inside the well and stayed in the well for one hour.

5. It is contended by learned Senior Advocate that the presence

of Ganpat at the place of occurrence is doubtful for the very

reason that he had stated that after his wife fell in the well,

Malaram went down and stayed in the well for one hour and there

is no version of husband - Ganpat (PW-7) as to what he did for

one hour when his wife was inside the well. Learned Senior

(4 of 8) [CRLA-428/1989]

Counsel for the appellants has placed reliance on Balaka Singh &

Ors. Versus The State of Punjab: AIR 1975 SC 1962, Jodhraj &

Ors. Versus State of Rajasthan: (2020) 14 SCC 205,

Malleshappa Versus State of Karnataka: JT 2007 (11) SC 234,

State of U.P. Versus Bhagwant & Ors.: JT 2003 (4) SC 131 and

Kanakarajan Alias Kanakan Versus State of Kerala: (2017) 13

SCC 597.

6. Learned Additional Government Advocate appearing for the

State has opposed the appeal, however, he has fairly admitted

that the evidence against the present appellants is similar to that

which was against the co-accused, who have been acquitted by

the trial Court and there was improvement in the statement,

which was recorded by the police under Section 161 Cr.P.C. and

the statement, which was recorded before the Court below. His

contention further is that the allegation that the present

appellants gave beating to Ganpat (PW-7) is established from the

statement of Ganpat (PW-7) and the conviction under Section 323

IPC of the appellants does not call for any interference by this

Court.

7. We have considered the contentions and have carefully

perused the material on record.

8. In the FIR, which was registered by Malaram (PW-6), it is

specifically mentioned that Gopal and Jagdish came with sticks

and started beating Ganpat and to save him, his wife Smt.

Jadavali, who had come to fill water from the well, covered Ganpat

and thereafter, all the accused gave beating to her. Thereafter,

Rameshwar asked other co-accused to throw Smt. Jadavali in the

well and all the accused pulled Smt. Jadavali towards the well and

threw her in the well. Similar is the statement given to the police

(5 of 8) [CRLA-428/1989]

by Malaram (PW-6) and Ganpat (PW-7). Both these witnesses

were not found to be fully trustworthy by the trial Court. Four of

the alleged eye-witnesses have turned hostile and the only

witnesses on the basis of which the present conviction has been

arrived at by the Court below are Malaram (PW-6) and Ganpat

(PW-7). We deem it proper to elaborately deal with the evidence

of Malaram (PW-6) and Ganpat (PW-7).

9. Malaram (PW-6) and Ganpat (PW-7) in their statements

recorded under Section 161 Cr.P.C. narrated the incident and have

stated that beating was given to the deceased by all the accused

and thereafter, she was thrown in the well by all the accused

except Rameshwar. However, before the Court below, they have

changed their version and have stated that all the accused gave

beating to the deceased and thereafter, Rameshwar asked the

accused to throw her in the well. Gopal, Jagdish, Rameshwar,

Chhotudi with Chandri dragged her towards the well and the

present appellants threw her in the well. Similar is the version

given by Ganpat (PW-7). The trial Court has disbelieved the

statements of the witnesses and has acquitted four of the co-

accused and has come to the conclusion that deceased was not

dragged by the accused and was not given beating by the

accused. The Court below had only relied on that part of the

statements wherein witnesses have said that the present

appellants threw her in the well on the saying of Rameshwar.

10. The evidence of Malaram (PW-6) turns out to be completely

untrustworthy as he has stated that when the deceased was

exhumed from the well, she was alive. This statement is also

negated by the evidence given by the Doctor, who conducted the

postmortem report and has stated that the injury, which was

(6 of 8) [CRLA-428/1989]

caused to the deceased, would have resulted in instant death.

Evidence of Malaram (PW-6) and Ganpat (PW-7) both become

untrustworthy as they have stated that the accused appellants and

the other co-accused gave beating to the deceased and

considering her to be on the verge of death, threw her inside the

well, however, there were no injuries on the back of the deceased

to support the evidence given by Malaram (PW-6) and Ganpat

(PW-7). The trial Court has come to the conclusion that the

evidence of Malaram (PW-6) and Ganpat (PW-7) is not trustworthy

and on that basis, has acquitted four out of the six accused. The

case of the present appellants is not severable from that of the

acquitted accused as initially in the FIR, the allegations of beating

the deceased and throwing her inside the well was on all the

accused.

11. In Balaka Singh & Ors. Versus The State of Punjab (supra),

four persons were acquitted out of nine. The court held that the

case of the convicted accused was not severable from that of

acquitted accused and the entire prosecution case was discarded.

In Jodhraj & Ors. Versus State of Rajasthan (supra), the Apex

Court held that if some accused are acquitted based on

unreliability of particular witnesses or evidence, then that benefit

must extend to all accused who are implicated based on testimony

of those same unreliable witnesses. In Malleshappa Versus State

of Karnataka (supra), there was no reliable and trustworthy

evidence, but there were many conjectures and surmises. In such

circumstances, it was highly dangerous to convict any accused. In

State of U.P. Versus Bhagwant & Ors. (supra), the Court held that

the witnesses were highly interested and partisan witnesses and

the prosecution case was highly doubtful and even the presence of

(7 of 8) [CRLA-428/1989]

the witnesses have also found to be doubtful and the acquittal

order was confirmed. In Kanakarajan Alias Kanakan Versus State

of Kerala (supra), the Apex Court held that if the testimony of the

witnesses is not cogent and trustworthy, the benefit of doubt

should go to the accused.

12. In the present case in hand, the testimony of Malaram (PW-

6) and Ganpat (PW-7) was not found to be trustworthy by the trial

Court, however, it has convicted the accused appellants only on

the basis of the evidence that the present appellants were the

persons who threw the deceased in the well. Though the theory of

"falsus in uno, falsus in omnibus" does not apply in Indian Law,

but when the material witnesses are over-implicating the accused

and are later on changing their version before the Court below to

implicate particular two accused, their story has to be disbelieved

in toto. There is no reason whatsoever to treat the present

appellants on a different footing than those who have been

acquitted by the trial Court.

13. The evidence of Ganpat (PW-7) that the appellants gave

beating to him, to that extent his statement can only considered

to be true, however, the latter version which he has developed

cannot be believed. Since the deceased has not sustained any

injuries, the possibility that she slipped into the well cannot be

ruled out. We therefore deem it proper to partly allow the present

appeal and acquit the accused appellants for the offence under

Section 302/34 IPC, however, the conviction and sentence of one

month of the accused appellants under Section 323 IPC is upheld.

14 Bail bonds submitted by the appellants are cancelled.

Appellants are directed to furnish personal bond in the sum of

Rs.20,000/- each and a surety bond in the like amount in

(8 of 8) [CRLA-428/1989]

accordance with Section 437-A of Cr.P.C. before the Deputy

Registrar (Judicial) within two weeks from the date of release to

the effect that in the event of filing of Special Leave Petition

against this judgment or on grant of leave, the appellants on

receipt of notice thereof, shall appear before the Hon'ble Apex

Court. The bail bond will be effective for a period of six months.

                                   (SAMEER JAIN),J                                           (PANKAJ BHANDARI),J

                                   SUNIL SOLANKI /PS









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