Veer Chand And Anr vs State Of Rajasthan
2022 Latest Caselaw 14906 Raj

                                           (1 of 16)               [CRLA-176/1992]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 176/1992

1.   Veer Chand son of Shri Ratan ji, by caste Mod Patel,
     resident of village Aasela, Police Station Sadar
     Doongarpur.
2.   Nan Chand, son of Shri Ratan ji, by caste Mod Patel,
     resident of village Aasela, Police Station Sadar
     Doongarpur.
                                                                  ----Appellants
                                   Versus
State Of Rajasthan
                                                                 ----Respondent


For Appellant(s)         :     Mr. Mridul Jain
For Respondent(s)        :     Mr. R.R. Chaparwal, P.P.


          HON'BLE MR. JUSTICE SANDEEP MEHTA
          HON'BLE MR. JUSTICE KULDEEP MATHUR
                               JUDGMENT
PRONOUNCED ON                          :                        19/12/2022
RESERVED ON                            :                        15/11/2022

By the Court:(per Hon'ble Mathur,J.)

1. By the jugdment dated 25.04.1992 passed in Sessions Case

No.25/1990, learned Sessions Judge, Dungarpur convicted and

sentenced appellants as under:-

 Name of       Offence for                         Sentence awarded
    the      which convicted
  accused
Veer Chand    Section 302 IPC Life imprisonment along with fine
                               of ₹5,000 and in default of
                               payment of fine, 5 months' R.I.

Section 201 IPC 2 Years' imprisonment along with fine of ₹1,000 and in default of payment of fine, 1 month R.I.

Nan Chand     Section 302 r/w Life imprisonment along with fine
                   34 IPC      of ₹2,000 and in default of
                               payment of fine, 2 months' R.I.

Section 201 IPC 2 Years' imprisonment along with fine of ₹1,000 and in default of payment of fine, 1 month R.I.

All the sentences were ordered to run concurrently.

(2 of 16) [CRLA-176/1992]

2. The appeal has been preferred by the appellants assailing

the judgment dated 25.04.1992. Bailable warrants issued by co-

ordinate Bench of this Court vide order dated 05.08.2022 for

summoning the appellants were received with the report that

appellant no.2 expired on 26.12.2020. This Court vide order dated

23.09.2022 held that the appeal stood abated to the extent of

appellant No.2 Nan Chand and ordered that a note to this effect

be appended in the cause title.

3. Brief facts relevant and necessary for disposal of the appeal

are noted hereinbelow:

4. Some time in the month of September 1989, Bhura Lal (PW-

1), while going to Yadav cremation ground, near VaaglaVaali Paal

noticed that as if some human/animal was buried there and foul

smell emanated therefrom. Bhura Lal also noticed few fragments

of human body and a swarm of flies around the area. Bhura Lal

informed his brother Shankar Lal, who then informed Punja

(P.W.9), Sarpanch of the village, whereupon, Punja (P.W.9)

reached to the area and verified the above information and lodged

a written report (Ex.P/14) on 29.09.1989 at Police Station, Sadar

Dungarpur, upon which unnatural death case No.9/89 under

Section 174 Cr.P.C. came to be registered. The enquiry in relation

to unnatural death case No.9/89 was handed over to Shri Keshar

Singh (P.W.10) Station Incharge under Section 174 Cr.P.C. who,

after inspecting the Yadav cremation ground, prepared the inquest

memo (Ex.P/15) recording a finding that human remains were

found inside a ditch, measuring 7 feet long and 3 feet wide.

Statements of Bhura Lal Yadav (Ex.D/1) and Shankarlal (Ex.D/4)

under Section 161, Cr.P.C. were also recorded by Shri Keshar

(3 of 16) [CRLA-176/1992]

Singh (P.W.10). Later on, Aziz Mohammad (P.W.14), Sub-

Inspector, P.S. Sadar Dungarpur took over the enquiry and

concluded in inquest report that the accused-appellants murdered

Khem Chand by inflicting lathi blows on his head and thereafter

buried the dead body. Aziz Mohammad forwarded this information

(Ex.P/46) to Superintendent of Police, Dungarpur whereupon, an

FIR No.7/90 (Ex.P/47) came to be registered at P.S., Sadar

Dungarpur on 11.01.1990 for offences punishable under Sections

302 and 201 IPC alleging inter alia that on 27.08.1989, at around

8-9 PM, the accused appellant Veer Chand visited house of Smt.

Bhuri Devi (P.W.2) and sat on a cot leaving his slippers at the

entrance door. At the same time, Khem Chand also arrived at

Smt. Bhuri Devi's House to purchase milk, who while returning

back accidentally stepped on the slippers of accused appellant

Veer Chand. This incident led to an altercation between Veer

Chand and Khem Chand, upon which Khem Chand called his

brother/co-accused appellant Nan Chand to bring a lathi. Veer

Chand gave 2-3 lathi blows on the head of Khem Chand. Nan

Chand caught hold Khem Chand, while Veer Chand gave lathi

blows to him, as a result of which Khem Chand fell on the ground.

The whole incident was witnessed by Smt. Bhuri Devi (P.W.2),

Ratan Lal (P.W.6), Bhuralal Yadav (P.W.1) and Ratan Ji (P.W.4),

none of them intervened in between to save Khem Chand due to

fear of life and limb as both the accused were known to be of

quarrelsome nature, as recorded in the statements of the eye-

witnesses. After Khem Chand fell on the ground, his body was

moved by the accused appellants-Veer Chand and Nan Chand

from the place of incident to Vaagla Taalab near cremation ground

(4 of 16) [CRLA-176/1992]

of Yadav community, where the clothes worn by the deceased

were removed and the dead body was buried by accused

appellants. The clothes of the deceased along with some stones

were put in a sack, which was thrown in the well of one Premji.

After few days, Dhavarchand Vidhyarthi (P.W.16) was asked by

the accused Veer Chand that his lota accidentally fell in the well of

Premji and if he would get it out, in return, he will give him ₹5.

Dhavarchand though not able to find the lota in the well, found a

sack containing clothes of the deceased which was taken by

accused appellant-Veer Chand to nearby culvert and buried after

tearing the clothes. Accused appellant-Veer Chand threatened

Smt. Bhuri Devi (P.W.2), Ratan Lal (P.W.6), Bhuralal Yadav

(P.W.1) and Ratan Ji (P.W.4) and other witnesses that if they

divulged any details of the incident, he will kill their family

members and because of fear, the witnesses remained silent for

so many days.

Upon conclusion of investigation, the I.O. proceeded to file

charge-sheet against the accused-appellants for offences

punishable under 302 and 201 IPC. Since the offences were

exclusively triable by Sessions Judge, the case was committed to

Sessions Court, Dungarpur, where charges were framed against

the accused for the above offences. The accused-appellants

pleaded not guilty and claimed trial. The prosecution examined as

many as 17 witnesses and exhibited 55 documents to prove its

case. Upon being questioned under Section 313 CrPC, the accused

denied the same, claimed to be innocent and claimed trial.

Learned trial court, heard and considered the arguments advanced

by the learned Public Prosecutor and the learned defence counsel;

(5 of 16) [CRLA-176/1992]

appreciated the material evidence available on record and

proceeded to convict and sentence the accused appellant as above

vide judgment dated 25.04.1992 which is assailed in this appeal.

5. Learned counsel Shri Mridul Jain representing the appellant

vehemently and fervently contended that the entire prosecution

case is false and fabricated. The story as propounded by the

prosecution is based on evidence of untrustworthy and unreliable

partisan eye-witnesses whose testimonies are doubtful as they

kept silence for more than a month. Bhuralal (P.W.1), who claims

to have witnessed the alleged incident, went to his maternal uncle

post the incident and after coming back to village Aasela, he

noticed the foul smell and informed his brother Shankar Lal about

the same, who in turn informed Punja (P.W.9), who thereupon

lodged a written report (Ex.P/14). Upon this, the S.H.O, Shri

Keshar Singh (P.W.10) came to the house of Shankar Lal, where

Bhura Lal was also present but not a single word regarding the

incident was uttered by him in presence of the police officer. It

was vehemently submitted that other eye-witness also neither

informed Shri Keshar Singh nor anyone else about the incident at

the relevant time as would be expected in natural course of

events. Learned counsel emphatically submitted that all the eye-

witnesses in their statements narrated different versions of

incident inasmuch as Ratan Ji (P.W.4) and Ratanlal (P.W.6) even

failed to mention about the presence and participation of Nan

Chand (co-accused) at the place of incident, who brought the

lathi, used by Veer Chand to cause death of Khem Chand and also

caught hold of Khem Chand while Veer Chand gave blows of lathi

to the deceased. Ratanlal (P.W.6) in his statements stated that he

(6 of 16) [CRLA-176/1992]

did not see any other person witnessing the incident which further

makes the version of other eye-witnesses including Ratanlal

(P.W.6) to be unreliable. He further submitted that the FIR (Ex.P/

47) of the incident was registered at P.S. Sadar, Dungarpur on

11.01.1990, after a delay of more than 4 months and this huge

delay completely tarnishes the prosecution theory that the

incident was witnessed by Smt. Bhuri Devi (P.W.2), Ratan Lal

(P.W.6), Bhuralal Yadav (P.W.1) and Ratan Ji (P.W.4). The rank

silence of these witnesses for such a long duration demolishes

their claim of having seen the incident.

On the basis of these submissions, learned counsel

vehemently and fervently urged that the findings recorded by the

trial court in the impugned judgment that the prosecution has

succeeded in bringing home the charges by cogent and convincing

evidence, are totally unsubstantiated, perverse and conjectural in

nature and hence, the impugned judgment deserves to be

quashed and set aside; the appeal preferred against the impugned

judgment deserves to be accepted and appellants are entitled to

be acquitted.

6. Per contra, learned Public Prosecutor, vehemently and

fervently opposed the submissions advanced by the learned

defence counsel. He urged that the eye-witnesses to the incident

were threatened by the accused-appellant Veer Chand with dire

consequences if they dared to spill the beans. Thus, fearing for

their lives they did not lodge any written report/FIR against the

accused. The delay in disclosure by the eye-witnesses is well

explained for the fact that they were warned by accused-appellant

Veer Chand and solely on this reason, their statements cannot be

(7 of 16) [CRLA-176/1992]

discarded. The evidence of material eye-witnesses do not suffer

from any significant infirmities or contradictions so as to held

them unreliable.

On these submissions, learned Public Prosecutor implored

the Court to dismiss the appeal preferred by the accused-appellant

against confirming the findings by the trial court in the judgment

dated 25.04.1992.

7. We have given our thoughtful consideration to the

submissions advanced at Bar and have carefully examined the

evidence available on record.

8. The prosecution came out with a story that accused Veer

Chand on 27.08.1989, around 8-9 pm, came to the house of Bhuri

Devi (P.W.2) and sat on a cot. Khem Chand at the same time

came to Bhuri Devi's house to purchase milk and while returning,

he accidentally stepped on the slippers of Veer Chand, who started

hurling abuses at Khem Chand, leading to an altercation between

them. Veer Chand on getting enraged called upon his brother, Nan

Chand(co-accused) to bring a lathi using which he gave blows to

Khem Chand, who succumbed to the blows and expired. The body

of the deceased was then carried away by Veer Chand and his

brother Nan Chand from the crime scene to some place near the

Yadav community cremation ground. The very act of giving lathi

blows and then taking of the body from the place of incident to

place near Yadav community cremation ground, according to the

prosecution story had witnessed by four eye witnesses viz. Smt.

Bhuri Devi (P.W.2), Ratan Lal (P.W.6), Bhuralal Yadav (P.W.1) and

Ratan Ji (P.W.4). It is apposite to note that none of them neither

intervened nor tried to save Khem Chand from the blows which

(8 of 16) [CRLA-176/1992]

were being given by the accused-appellant. The reason advanced

by the said eye-witnesses for their object silence and non-protest

was that the accused-appellants were known to be of quarrelsome

nature and thus, they remained mere spectators of the alleged

incident. They claimed that the accused warned them of dire

consequences and they, out of fear did not report the matter to

police or any other person.

9. At this stage, it would be fruitful to reproduce relevant parts

of the statements made by eye-witnesses of the incident:- Smt.

Bhuri Devi (P.W.2), Ratan Lal (P.W.6), Bhuralal Yadav (P.W.1) and

Ratan Ji (P.W.4).

"(I) Bhuralal Yadav (P.W.1):-

--Chief Examination-

"[ksepan dk edku eqyfteku ds edku ls ikl gh gSa nksuksa ds njoktksa esa djhc 10&15 QwV dh nwjh le>ksaA [ksepan fojpan vkSj ukupan nksuks HkkbZ;ksa dk lxk dkdk gksrk FkkA fojpan vkSj ukupan ds firk ljd.k dksIpk esa nqdku djrs gSa vkSj ogha jgrs gSa tks ljd.k dksIpk xkao ls dHkh dHkh vklsyk vkrs gSaA vklsyk xkao esa ?kj ij nksuks eqyfteku vkSj mudh ekrk vkSj buds ,d NksVk HkkbZ nsopan vkSj ,d NksVh cgu jgrs gSaA fojpan ds ,d nwljk dkdk oyeth vkSj gSa tks fgjkrk esa jgrk gSaA mDr ?kVuk ds chl&iPphl fnu ckn Mwaxjiqj lnj Fkkus dh iqfyl vkbZ Fkh xkao esaA ml le; eSa rks dke ij x;k Fkk vkSj eSa 'kke dks ?kj ij dke ls ykSVdj vk;kA rc iqfyl gekjs ?kj ij ;kfu esjs cM+s HkkbZ 'kadjyky ds ?kj ij gh Bgjh gq;h FkhA jkr dks esjs HkkbZ 'kadj yky ds ?

kj iqfyl Bgj dj vxys fnu iqfyl pyh xbZ FkhA bl ?kVuk ds ;kfu [ksepan ejk mlds ,d nks fnu ckn fojpan eqy- eq>s feyk vkSj blus eq>s dgk fd vxj rw ;g ckr fdlh dks dgsxk rks eSa rsjs dks ekj Mkywaxk vkSj rsjs lkjs [kkunku dks [kRe dj nwaxkA vkSj rw bl xkao ls dgha ckgj pyk tk ugha rks rw fdlh dks ckr crk nsxkA fQj eSa esjs ekek ds ;gka [kseiqj pyk x;k tks fd x.ks'kiqj ds ikl gSaA ogka nl iUnzg fnu eSa Bgjk fQj okil vk;kA okil vkrs le; eSa euiqj cl LVs.M ij mrjk vkSj iSny esjs xkao esa vk jgk Fkk eks ukMk uke dh exjh ds ikl eq>s fojpan eq>s feykA rc mlus eq>s dgk fd vxj rw ;g ckr fdlh dks crk;sxk rks eS rsjs [kkunku dks [kRe dj nwaxkA vkSj eSus jruth firk

(9 of 16) [CRLA-176/1992]

xyrh] jruyky firk eksxth vkSj Hkjh ckbZ dks le>k fn;k gSa vkSj rw Hkh ;g jkt fdlh dks ugha crkukA blfy;s eSus mDr ?kVuk okyh ckr fdlh ugha crk;h FkhA mlds ckn lnj Fkkus dh iqfyl vk;h FkhA iqfyl vkdj esjs HkkbZ ds ;gka Bgj dj pyh tkus ds efguk nks efguk fcr x;k Fkk rc Hkh fojpan us esjs dks dgk Fkk fd] gj ges'kk dgrk Fkk fd rw ckr fdlh dks crk nsxk rks rsjs [kkunku ifjokj dk uk'k dj nwaxkA blds ckn eSa ,d fnu lqcg ysVªhu djus ?kj ls fudyk FkkA ge gekjs xkao esa gekjs lekt dk tks 'e'kku ?kkV gS m/kj ge ysVªhu djus tkrs gS] m/kj eSa lqcg lkr lk<s lkr cts x;kA m/kj gekjs 'e'kku ?kkV ds ikl [kq'kcw ekj jgh Fkh balku tSlhA mlds ckn eSa ysVªhu djds ?kj okil vk;kA gekjs 'e'kku ?kkV ds ikl ogka fQj dgk 'ke'kku ?kkV gh gSa ogka ekal ds ls yksFkMs feV~Vh ds mij iM+s Fks vkSj balku fd lh [kq'kcw vk jgh Fkh] [kjkc&[kjkcA eSa ogka ls okil ?kj vk jgk Fkk rc jkLrs esa eq>s fojpan feyk Fkk vkSj mlus eq>s dgk Fkk b/kj dgka ls vk jgk gSa rks eSus mls dgk Fkk fd eSa ysVªhu tk dj vk jgk FkkA bl ij D;k ekywe D;k 'kadk gks x;h og esjs ij vk iM+k eq>s ekjus ds fy;sA mlds ckn eSus ,l-ih- lk- dks fjiksVZ dhA og fjiksVZ iz-ih-A gSa ftl ij , ls ch esjs gLrk{kj gSaA esjh mDr fjiksVZ nsus ds ckn vkliqj dh iqfyl xkao esa vkbZ FkhA"

(II) Smt. Bhuri Devi (P.W.2):-

-Cross Examination-

"eSus tks jruth firk xyth ds edku esa iNhr esa tkyh ;kfu ckjh gksuk mij ckrk;h gSa og ckjh jruth ds edku dh iNhr ds yadkm dksus esa gks ;wa eq>s [kcj ugha iMrhA ;g lgh gS fd og ckjh iNhr ds dksus ij gSaA jruyky firk eksxth dk edku gekjs edku ls vkre.kh esa iM+rk gSaA jruyky firk eksxth ds edku dk ckj.k mxe.kk gSaA ;g lgh gS fd pksekls ds fnu Fks blfy;s ?kVuk okyh jkr vkdk'k esa ckny gks jgs FksA ;g lgh gS fd ftl le; ;g ekjdwV gq;h ml le; Hkh vkdk'k esa ckny FksA 'kadjyky ;kno vkSj Hkwjkyky ;kno HkkbZ HkkbZ gSa vkil esa] mu nksuksa dks eSa igpkurh gwa] efgiky uke dk vkneh Hkh mudk HkkbZ gks rks eSa ugha tkurhA 'kadjyky gfjtu ;kfu 'kadjyky ;kno dk edku esjs edku ls FkksM+h nwj gSa T;knk nwj ugha gSaA esjs ?kj ls mldk ?kj fn[kkbZ nsrk gSaA 'kadjyky ds ?kj iqfyl vkbZ gks rks mldh eq>s [kcj ughaA iqfyl 'kadjyky ds ?kj vkbZ gks vkSj rc og okxsyk rkykc dh iky ij xbZ gks vkSj ogka iqfyl us gkMds fudkys gks vkSj ekal ds yksFkMs iqfyl dks feys gks] ml ckr dk eq>s irk ugha] u rc iqfyl us eq>ls dqN iwNkA gekjs vkax.ks eud ej x;k ;kfu [ksepan ej x;k mldk [kwu vkax.ks esa ls eSus lkQ fd;k Fkk lqcg esaA eSus mDr ckr dh [kcj ljiap dks ;k fdlh ljdkjh vkneh dks ;k iqfyl dks ugha nh D;ksafd eq>s

(10 of 16) [CRLA-176/1992]

eqyfte us /kedh nh FkhA eSa vkt c;ku nsus vkbZ gwW mlls igys Hkh eSus bl ?kVuk ds ckjs esa fdlh vkneh ls ckr ugha djh gSaA esjk vkneh vk x;k mlds ckn Hkh eSaus mDr ?kVuk ckcr fdlh dks ugha crk;kA dksbZ iqfyl ds vQlj eq>ls iwNrkN ;k tkap djus ugha vk;sA ;g lgha gS fd 'kadjyky vkSj Hkwjkyky vkt esjs lkFk vk;s gSa vkSj vnkyr ds ckgj cSBs gSaA ;g xyr gS fd 'kadjyky o Hkwjkyky us eq>s ;g dgk gks fd rw ,sls ,sls c;ku nsuk] fdlh us ckr u dhA iz- %& vkids iqfyl }kjk fy[ks gqos c;ku iz- Mh- 2 esa fojpan }kjk lqcg vkdj vkidks /kedh nh tkuk mlesa vafdr ugha gSa] D;k vkius iqfyl dks fy[kk;k Fkk\ m- %& ugha] iqfyl us iqNk ugha blfy;s eSus dqN crk;k ughaA ;g lgh gS fd vkliqj okyh iqfyl vkbZ Fkh vkSj mlus esjk vaxwBk djok;k Fkk vkSj esjk c;ku fy;k FkkA"

(III) Ratan Ji (P.W.4):-

-Chief Examination-

"eSa ukupan vkSj fojpan eqyfteku gkftj vnkyr dks tkurk gwWA eSa [kse pan dks tkurk Fkk tks ej x;kA 27-8-89 dks mldh e`R;q gq;hA [ksepan vkSj fojpan nksuksa >xM+ jgs Fks tks eSus ns[kkA rk- 27-8-89 dh jkr ds vkB&ukS cts dh ;g ckr gSaA esjs ?kj es fiNs cktw esa ,d nwljk edku gSa iseth iq= jketh dk] mlds vkxkMh ,d dksB gS vkSj mlds vkxs ,d jkLrk gS] og dksV vkaxu dks gSa tks vkaxu iseth iq= jketh dk gSaA iseth dk ,d vkaxu FkksM+k mapk gS nwljk vkaxu FkksM+k uhpk gS tks nksuksa ikl&ikl gS vkSj vkaxu ds ckn dksV gS vkSj dksV ds ckn lM+d gS ml vkaxu esa tks vkaxu FkksM+k lk mwapk gSa ogka [ksepan vkSj fojpan >xM+ jgs FksA os vkeus lkeus xkfy;ka cd jgs Fks >xM+rs gqosA vkxs edku gS ,d rktsax iq= iseth dk vkSj nwljk eketh firk iseth dkA iseth ds edku esa vkaxu esa ykbZV ty jgh FkhA yM+rs yM+rs fojpan us ykBh ekjh [ksepan dks tks ykBh [ksepan ds ;gka dgha ij ¼ uksV %& xokg us vius flj ds fiNs duiVh ds ikl o xnZu ds ihNs dh vksj gkFk yxkdj b'kkjk djrs gq, crk;kA ½ blds ckn [ksepan uhps okys vkaxu esa fxj x;kA eSaus rks bruk gh ns[kkA eSaus esjs ?kj esa fiNs okyh nhokj esa tkyh gS] ml tkyh es ls esus ;s ns[kkA eSaus dqN ugh fd;k] eS ogkW ij muds ikl ugha x;kA eSaus ogkW >xM+s esa vkSj fdlh dks ugh ns[kkA eSa rks mij tks eSus ckr crkbZ gS og ns[kdj esjs ?kj esa pyk x;k] vkSj ml tkyh ls gV x;k] eSausa vkSj ugh ns[kkA ogkW vkSj dksbZ yksx ugh Fks] ml ?kj dh ekfyd Hkwjh Fkh og ogkW ckj.ks esa ekStqn FkhA vkWxu ds iklA eSus mDr crkbZ fLFkfr ns[kus ds ckn esjs tkyh ds fdokM vanj ls can dj fn;s Fks ftlls mlds ckn eq>s irk ugha fd ogkW iseth ds vkWxu esa fQj D;k

(11 of 16) [CRLA-176/1992]

gqvkA ml ?kVuk ds chl iPphl fnu ckn xkWo esa ml ?kVuk ds ckjs esa D;k ckr pyh Fkh eq>s irk ugha] eSaus dqN ugha lqukA iqfyl xkWo esa vkbZ gks esjs dks /;ku ugha gSA eSa vkSj dksbZ ckr bl ekeys es ugha tkurkA mDr ?kVuk ds ckn eSaus [kseapn dks thfor ugha ns[kkA"

(IV) Ratan Lal (P.W.6):-

-Chief Examination-

"eSa ukupan vkSj fojpan eqfYteku gkftj vnkyr dks tkurk gwWA eSa [ksepan dks Hkh tkurk gwW tks ej x;kA 27 vxLr] 89 dh ckr gS] jkr dk yxHkx lk<s vkB ukS cts dk le; FkkA rc eSaus ;g ns[kk fd [ksepan vkSj fojpan nksuksa >xM+ jgs FksA ;s iseth iq= jketh ds vkaxu esa >xM+ jgs FksA fojpan us rc [ksepan dks ekjk] ykBh ls ekjkA esjs lkeus fojpan us [ksepan dks ,d ykBh ekjh tks mlus [ksepan ds flj esa ekjh ¼uksV%& xokg us gkFk flj ds fiNs dh vksj ys tkdj b'kkjs ls crk;k½A ykBh yxus ij [ksepan uhps fxj x;kA eSa esjh nqdku can djds ysVªhu tk jgk Fkk rc eSaus mDr ?kVuk ns[kh FkhA eSaus mDr ?kVuk ysVªhu esa tc tk jgk Fkk rc jkLrs esa tkrs tkrs le; mDr ?kVuk ns[khA esjh nqdku ijpwuh dh gS tks iseth iq= jketh ds vkaxu ls djhc rhl&pkyhl QwV dh nwjh ij gSA esjs vykok ogka mDr ?kVuk ns[kus okyk vkSj dksbZ O;fDr eq>s ogka fn[kkbZ ugha fn;kA eSa esjh nqdku esa jkr ds ukS cts rd nqdkunkjh djrk gWw vkSj ukS cts ds ckn nqdku can dj nsrk gwWA esjh nqdku ij fctyh dk cYc ty jgk FkkA eSa og cYc can djds ysVªhu tk jgk FkkA iseth iq= jketh ds vkaxu ml le; ykbZV ty jgh FkhA eSaus muds >xM+us dh vkokt Hkh ml le; lquh FkhA ml >xM+us dh vkokt lqudj nwljs dksbZ yksx ogka ugha vk;s FksA esjh nqdku ds ,dne ikl vkSj dksbZ nqdku ugha gS] iwatk iq= Hkk.kth dh nqdku esjh nqdku ls dqN nwjh ij gSA iseth ds edku ds if'pe esa mlds edku dk fiNokM+k gS tgka ij ckal yxs gqos gS ;kfu mxs gq, gSA eSa mDr ?kVuk ns[kdj ysVªhu x;k vkSj ogka ls okil vkdj nqdku can djds vkSj ?kj can djds lks x;kA esjh nqdku esa vkxs okys fgLls esa gS vkSj nqdku ds fiNokM+s esa esjk fjgk;'kh ?kj gSA"

10. On an analysis of the testimonies of the eye-witnesses, it

becomes clear that they made the disclosure of having witnessed

the incident at a highly belated stage, without explaining the same

which impeded the witnesses from making a complaint regarding

the offence committed by the accused appellants other than the

feeble exercise of having been threatened by Veer Chand. The

(12 of 16) [CRLA-176/1992]

eye-witnesses despite several opportunities neither informed the

police/any other person nor narrated the incident to S.H.O Shri

Keshar Singh (P.W.10), who initiated enquiry into the unnatural

death case No.9/89. This fact raises serious doubts about the

reliability of their claim to be eye-witnesses. The contradictions as

noticed above in the statements of the witnesses makes their

testimonies totally doubtful and unacceptable. The very fact that

all the witnesses remained silent about the incident and none of

them came forward to inform the authorities or any other person

for almost a month renders the statements of these witnesses

unreliable.

11. Bhuralal (P.W.1) claimed that soon after the incident he left

for his maternal uncle's house and came back after 15 days. Five

days after returning, he noticed foul smell emanating near Yadav

community cremation ground. He informed about the same to his

brother, Shankar Lal but did not refer to the incident which

transpired on 27.08.1989. Further, when Punja (P.W.9), Sarpanch

informed police about the foul smell and when Keshar Singh

(P.W.10), I.O. came to visit Shankar Lal's house, then also Bhura

Lal (P.W.1) did not utter a single word to Shri Keshar Singh about

the altercation which happened between accused-appellant Veer

Chand and Khem Chand on 27.08.1989.

12. Bhuri Devi (P.W.2) in her statement admitted that she did

not disclose about the incident to anyone prior to giving statement

in the trial court on 28.11.1990 because she had been threatened

by the accused-appellant Veer Chand of dire consequences, if she

opened her mouth. Although, in her cross examination, she

admitted that she did not mention in her police statement inform

(13 of 16) [CRLA-176/1992]

the police about the warning received from Veer Chand which

impeded her from lodging an FIR or informing anyone else about

the incident. She explained the omission saying that she was not

asked about it by the police.

13. Ratan Ji (P.W.4) and Ratan Lal (P.W.6), claim themselves to

be eye-witnesses to the alleged incident which transpired around

8-9 pm on 27.08.1989 at Village Aasela, as narrated by the

prosecution. However, in their testimony, the witnesses did not

mention anything about co-accused/brother of Veer Chand, Nan

Chand. According to the theory of the prosecution, after an

altercation with Khem Chand, accused Veer Chand angrily called

upon his brother Nan Chand to bring lathi, using which Khem

Chand was done to death by accused Veer Chand. The two

witnesses in their statements failed to mention about presence of

Nan Chand, which makes it clear that their version is totally

contradictory to the evidence of the other so called eye-witnesses.

14. Ratanlal (P.W.6) in his statement states that he did not see

anyone around the area who could be viewing the incident,

essentially indicating that he was the only eye-witness and he did

not notice the presence of the so called eye-witnesses {Smt. Bhuri

Devi (P.W.2), Bhuralal Yadav (P.W.1) and Ratan Ji (P.W.4)}

present at the place of alleged incident, creating further doubts

about the reliability of the self proclaimed eye-witnesses.

15. Aziz Mohammad (P.W.14) sent information (Ex.P/46) to

Superintendent, Dungarpur of investigation conducted pursuant to

unnatural death case No.9/89, stating inter alia that on

08.01.1990 and 10.01.1990, he recorded the statements of Smt.

Bhuri Devi (P.W.2), Bhuralal Yadav (P.W.1), Ratanlal (P.W.6) and

(14 of 16) [CRLA-176/1992]

Ratan Ji (P.W.4) under Section 161 Cr.P.C. The statements of the

eye-witnesses were recorded by the I.O. after almost 4 months,

which in itself makes the statements of the witnesses suspicious.

16. Hon'ble the Supreme Court in the case of State of Orrisa

vs. Mr. Brahmananda Nanda, reported in AIR 1976 SC 2488,

held as under:-

"2. The entire prosecution case against the respondent rests on the oral evidence of Chanchala (PW. 6) who claimed to be an eye-witness to the murder of Hrudananda, one of the six persons alleged to have been killed by the respondent. The learned Additional Sessions Judge believed her evidence, but the High Court found it difficult to accept her testimony. The High Court has given cogent reasons for rejecting her evidence and we find out selves completely in agreement with those reasons. We have carefully gone through the evidence of this witness, but we do not think we can place any reliance on it for the purpose of founding the conviction of the respondent. The evidence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of 13th June, 1969 and yet she did not come out with the name of the respondent until the morning of 15th June, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than 15th June, 1969 on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the Club House which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on 14th June, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the rooming of 15th June, 1969 for giving out the name of the respondent. This is a very serious infirmity which

(15 of 16) [CRLA-176/1992]

destroys the credibility of the evidence of witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case."

17. A co-ordinate Bench of this Court in the case of Ghewar

Singh & Ors. vs, State of Rajasthan in D.B. Crl. Appeal

No.167/2018, decided on 22.11.2021, while dealing with

reliability and trust worthiness of witness in the facts and

circumstances of the case, held as under:-

"...The testimony of the sole prosecution eye witness the complainant Smt. Deu (PW-6) is not trustworthy. The report (Ex.P/31) was manifestly not her creation because the witness was not familiar with the words 'अनाधिकृत, गंग रे प', etc. which were used in the written report. The witness admitted that she was not familiar with these words. For the sake of repetition, it may be mentioned that the conduct of Smt. Deu (PW-6) in not informing anyone of the incident immediately or within a reasonable time after the victim had been allegedly kidnapped and the gross delay in lodging of the FIR, makes her testimony doubtful and unreliable. Other than her testimony, there is nothing on record which can connect the appellants with the alleged crime. The regimented improvements in the prosecution case which are manifested from the testimony of the prosecution witnesses completely demolish the creditworthiness of the entire case. The theory that the accused persons kidnapped the girl on the night intervening 29.03.2013 and 30.03.2013; subjected her to gang rape at the under-construction hospital and then threw her down from the hills thereby killing her, is totally conjectural and untenable on the face of the record."

18. After perusing the impugned judgment threadbare and,

analyzing the evidence and the findings recorded by the trial

court, we find that the incident allegedly had taken place on

27.08.1989 but the FIR was lodged with gross delay on

11.01.1990 that is almost 5 months without explaining the

reasons for the delay. Further, the trial court fell in a grave error

in accepting the evidence of the prosecution witnesses to be a

(16 of 16) [CRLA-176/1992]

gospel truth and in recording the adverse findings against the

accused on the basis of such suspicious testimonies. To a great

extent, the findings which have been recorded by the trial court in

the impugned judgment, are conjectural on the face of the record.

19. In wake of the discussion made herein above, we are of the

firm view that the conviction of the appellant as recorded by the

trial court for the offences mentioned above cannot be sustained.

20. As a consequence, the appeal deserves to be and is hereby

allowed. The impugned judgment dated 25.04.1992 passed in

Sessions Case No.25/1990 by learned Sessions Judge, Dungarpur

is hereby set aside. The accused appellant is acquitted of all the

charges. The appellant is on bail. The appellant need not

surrender and his bail bonds are discharged.

21. However, keeping in view the provisions of Section 437-A

Cr.P.C., the appellant 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 appellant shall appear before the Supreme Court.

22. Record be returned to the trial court forthwith.

                                   (KULDEEP MATHUR),J                                     (SANDEEP MEHTA),J


                                    KshamaD/skm-









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