Rajasthan High Court - Jodhpur
Dilip Aahari Meena And Ors vs State on 30 June, 2022
Bench: Sandeep Mehta, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 520/2017
1. Dilip Aahari Meena S/o Sh. Deeta Aahari Meena, B/c
Meena, R/o Bilakh Kikawat Phalasiyat, Police Staiton
Rishabhdeo, District Udaipur.
2. Prakash Aahari Meena S/o Nana @ Nanuram, B/c Meena,
R/o Bilakh Kikawat Phalasiyat, Police Staiton Rishabhdeo,
District Udaipur.
3. Shankar Aahari Meena S/o Sh. Vesa Aahari Meena, B/c
Meena, R/o Bilakh Kikawat Phalasiyat, Police Staiton
Rishabhdeo, District Udaipur. Presently Lodged In Central
Jail, Udaipur
----Appellants
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Deepak Menaria assisted by
Mr. Mohd. Rashid
For Respondent(s) : Mr. B.R. Bishnoi, AGC
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
JUDGMENT
Date of Pronouncement :- 30/06/2022
Judgment Reserved on :- 20/05/2022
BY THE COURT : PER HON'BLE MEHTA, J.
The appellants herein have been convicted and sentenced as
below vide judgment dated 01.03.2017 passed by learned Addl.
Sessions Judge, Kherwada, District Udaipur in Sessions Case
No.22/2016:-
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Offence Sentences Fine Sentence in lieu of
under default of payment
Section of fine
302/34 Life Imprisonment Rs.5,000/- 3 months' Additional
IPC RI
324 IPC 3 Years' SI Rs.1,000/- 1 Month's Additional
SI
323 IPC 1 Year's SI Rs.1,000/- 1 Month's Additional
SI
341 IPC 1 Month's SI Rs.500/- 5 Days' SI
All the sentences were ordered to run concurrently.
They have preferred the instant appeal under Section 374(2)
Cr.P.C. for assailing the impugned judgment of conviction and the
sentences awarded to them by the trial court.
Briefly stated the facts relevant and essential for disposal of
the instant appeal are noted hereinbelow:-
Smt. Sharda (PW.1) lodged a written report (Ex.P/1) to the
SHO Police Station Rishabhdeo, District Udaipur on 10.02.2014
alleging inter alia that her husband Ramesh Meena used to work
at marble mines. Further it was stated that on 08.02.2014 at
about 8:30 PM, she along with her father-in-law Megha, mother-
in-law Smt. Champa and brother-in-law Babulal Meena were
present at their house. Suddenly they heard cries of her husband
Ramesh Meena from towards the bridge located at a little distance
from their house upon which all of them rushed towards that
direction and saw that her husband was being assaulted by Dilip
S/o Deeta, Prakash S/o Shri Nana, Hurma S/o Shri Lala, Rakesh
S/o Shri Hurma, Smt. Kanta W/o Shri Hurma and Megha S/o Shri
Dilip Meena, all residents of Bilakh Phala Siyar by lathis and axes.
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The informant got terrified and watched the incident from a little
distance. Her father-in-law, mother-in-law and brother-in-law tried
to intervene for saving Shri Ramesh on which, the assailants also
assaulted with lathis and axes. On hearing the noise of
commotion, people from neighborhood gathered around on which,
the assailants ran away from the place of the incident. Her
husband Ramesh received injury on the head because of the axe
blow and various other injuries on other body parts due to which
he was bleeding excessively and was badly injured. Her father-in-
law Meghaji, mother-in-law Smt. Champa and brother-in-law Babu
also received injuries in the assault. Her husband's condition was
serious and thus, he along with her father-in-law, mother-in-law
and brother-in-law were taken to Udaipur for providing treatment.
This was the cause of delay in lodging the FIR. The said report was
submitted by Smt. Sharda to the SHO Police Station Rishabhdeo
on 10.02.2014 at 11:15 pm whereupon FIR No.59/2014 came to
be registered for the offences punishable under Sections 143, 341,
323 and 307 IPC and investigation was commenced. It may be
mentioned here that before being taken to Udaipur, the injured
persons had been taken to Primary Health Centre, Rishabhdeo
where Dr. Mukesh Kumar Bhagwat (PW.18) provided primary
treatment and also prepared the injury reports of Smt. Champa
(Ex.P/7), Megha (Ex.P/16), Babulal (Ex.P/17), and Ramesh
(Ex.P/29) between 2:40 AM to 3:30 AM.
Ramesh expired on 14.02.2014 as a result of the injuries and
his dead body was subjected to postmortem by Dr. Akhilesh
Sharma (PW.19) posted as medical jurist at Maharana Bhupal
Government Hospital, Udaipur. He carried out autopsy taking note
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of four injuries on the body of the deceased which are described
hereinbelow:-
(1) Stitched wound 3 cm long on the left eyebrow with brownish
scab.
(2) Stitched wound 5 cm long on middle part of the head with
brownish scab.
(3) Bruise 5 cm x 1 cm on the abdomen.
(4) Swelling on the left elbow.
When the head injury was opened, extradural hematoma ad-
measuring 5 cm x 5 cm was seen between the skull bone and the
brain membrane. Subdural hematoma was also noticed inside the
brain membrane. The age of injuries was opined to be between 4-
6 days old. Before being brought to M.B.G.H. Hospital, the victim
was admitted in a private facility named Kanak Hospital. The
medical jurist opined that the head injury was sufficient to cause
death in the ordinary course of nature because the victim went
into coma after receiving the blow. Initial investigation was
undertaken by Narayan Singh, ASI, Police Station Rishabhdeo.
However, after the death of Shri Ramesh, offence under Section
302 IPC was added to the case and the investigation was then,
assigned to SHO Govind Singh (PW.23). The three accused
appellants were arrested. As is usual, the informations provided
by the accused were recorded under Section 27 of the Evidence
Act and recoveries were effected in furtherance thereof.
Investigation was concluded and charge-sheet came to be filed
against the appellants herein for the offences punishable under
Sections 341, 323, 324, 307 and 302/34 IPC. Since the offence
under Section 302 IPC was exclusively triable by Court of Sessions
(5 of 19) [CRLA-520/2017]
Judge, the case was committed to the Court of Addl. Sessions
Judge, Salumbar District Udaipur for trial where charges for the
offences punishable under Sections 341, 323, 324 and 302/34 IPC
were framed against the appellants. They pleaded not guilty and
claimed trial. The prosecution examined as many as 24 witnesses
and exhibited 42 documents to prove its case. The accused were
questioned under Section 313 Cr.P.C. and upon being confronted
with the allegations appearing in the prosecution case, they
denied the same, claimed to be innocent but did not lead any oral
evidence in defence. Upon hearing the arguments advanced by
learned Public Prosecutor and the defence counsel and after
appreciating the evidence available on record, learned trial court
proceeded to convict and sentence the accused appellants as
above by the impugned judgment dated 01.03.2017, which is
assailed in this appeal.
Shri Deepak Menaria, Advocate representing the appellants
vehemently and fervently urged that the entire prosecution case is
false and fabricated. The FIR was lodged after significant delay of
more than 36 hours of the alleged incident. As many as six
persons were arraigned as accused in this FIR with no particular
role being assigned to any of them. The appellant Shankar Aahari
was not even named in the FIR. Hurma S/o Shri Lal, Rakesh S/o
Shri Hurma and Kanta W/o Shri Hurma who were pertinently
named as assailants in the FIR were not found involved in the
incident and were exonerated by the IO. The eyewitnesses also
stated on oath that the true assailants had not been
charge-sheeted by the police, who took bribe, and exonerated
them. Hence, the case of the appellants herein cannot be
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distinguished and they too deserve to be exonerated of the
charges on the same footing.
He urged that the informant Smt. Sharda, upon being
examined as PW.1 alleged that Dilip, Prakash, Rakesh, Shankar,
Kanta and Hurma were hiding behind the bridge. Her husband
Ramesh was returning home after working in the marble mines.
These accused accosted him and gave him axe blows on head,
forehead and hands. Ramesh shouted on which, the witness,
along with Champa, Megha and Babu ran towards the direction
from where they heard the commotion. Champa tried to save
Ramesh upon which, the accused turned their attention to her.
Dilip gave an axe blow on the head of Champa. Prakash outraged
her modesty. Babu ran towards the assailants on which, Prakash
gave him an axe blow on the head and as a result, he fell down.
Shankar inflicted a blow on the back of her father-in-law. Ramesh
was taken to Udaipur and thereafter, the report came to be lodged
at Police Station Rishabhdeo. Shri Menaria urged that when the
witness was cross-examined, she admitted that she was present in
her house at the time of the incident. The villagers came and told
her that Ramesh had been beaten on which, she proceeded to the
place of incident which is at a significant distance from her house.
Shri Menaria thus, urged that Smt. Sharda was definitely not
present at the spot and has been created to be an eyewitness of
the incident at a highly belated stage.
He also referred to the statement of Champa (PW.4) and
urged that she was declared hostile by Public Prosecutor. She did
not utter a single word regarding the assault made on Ramesh
(7 of 19) [CRLA-520/2017]
and rather stated that she was hit by Prakash with an axe and
Shankar and Babu who were armed with lathis. In her cross-
examination, the witness admitted that the investigating agency
took bribe and removed the names of main assailants Hurma,
Kanta, and Rakesh from the case. Shri Menaria took the Court
through the statement of Megha (PW.6), father of the deceased
who stated that the incident took place on 08.02.2014 in the
evening at 5 o' clock. His son Ramesh used to work on the mines
and was returning home with Rama. On the way, they were
accosted by Hurma, Kanta and Rakesh and both ran towards their
house. The witness alleged that Ramesh was beaten by Hurma
S/o Shri Lala, Rakesh S/o Shri Hurma, Kanta W/o Shri Hurma and
Mewa W/o Dilip. He pertinently stated that Hurma gave an axe
blow on the head of his son Ramesh due to which, he died. Shri
Menaria urged that the witness was not declared hostile and thus,
his evidence completely contradicts the testimony of Sharda
(PW.1).
He urged that the name of Rama was not mentioned in the
FIR as a companion of Shri Ramesh and he has been posteriorly
created to be an eyewitness of the incident. Rama (PW.7) stated in
his evidence that he and Ramesh were returning home after
working in the marble mines and were waylaid by Prakash, Dilip
and Shankar. Prakash was armed with an axe. Dilip and Shankar
were armed with lathis. Fearing for their lives, both ran towards
the old house of Ramesh and told his parents that these three
were trying to assault them. The witness stated that he came to
know on the next day that Ramesh had been beaten by the three
accused Prakash, Dilip and Shankar and expired. In cross-
(8 of 19) [CRLA-520/2017]
examination, the witness admitted that the incident took place in
the night time and he did not see anything. Shri Menaria pointed
out the admission made by Shri Ramesh that he was informed
about the death of Ramesh by his neighbor Heerabhai on the next
day at about 11 o' clock. Thus, his submission was that Rama did
not see Ramesh being assaulted.
Shri Menaria also referred to the statement of the witness
Babulal (PW.8), brother of the deceased who stated that the
incident took place on 08.02.2014 between 8-9 in the night. He
was returning home after doing his work. He heard cries of a
brawl on which, he proceeded towards the said direction. Three
assailants Dilip S/o Shri Deeta, Shankar S/o Shri Wesa and
Prakash S/o Shri Nana who were hiding near fence of the field of
Shankar S/o Shri Dhula Meena, assaulted his brother Ramesh and
his mother Smt. Champa. Prakash was armed with an axe. Dilip
and Shankar were armed with lathis. His brother received an axe
blow on the head and his mother also received injuries on the
forehead and chest. The witness intervened on which, he too was
beaten and received injuries on his left elbow, left thigh, head and
eye. On hearing the commotion, the villagers gathered around on
which the accused ran away. Ramesh and his mother who were
seriously injured were lifted by the villagers and were taken to
their home. On checking Ramesh, it came to light that he was
having a deep wound of an axe on his head and eye and his
mother was also having large number of injuries. The witness,
along with his family members and neighbors took both the
injured to Rishabhdeo Hospital from where they were referred to
Udaipur where his brother expired while undergoing treatment.
(9 of 19) [CRLA-520/2017]
The witness alleged that his brother-in-law had eloped with the
daughter of Kalu Meena. Shri Menaria pointed out that in cross-
examination, the witness admitted that Sharda came to the spot
after the accused had gone away. He too was present at the
hospital in Udaipur where his brother was admitted. He gave a
report of the incident at the Police Station Kesariyaji but could not
explain as to why the police did not register the case on his
report. The witness admitted that in the report which was lodged
by him and his parents they had incorporated the names of Hurma
S/o Shri Lala, Rakesh S/o Rakesh S/o Shri Hurma, Smt. Kanta
W/o Shri Hurma, Megha S/o Shri Dilip and Jeewa S/o Shri Deeta.
The police initially apprehended these persons but then
exonerated them. His sister-in-law lodged the report much after
the death of his brother. The witness admitted that those accused
who were named in the report lodged by him and his parents were
not in jail. Shri Menaria referred to the Part A to B of the police
statement (Ex.D/2) of the witness with which he was confronted
and which reads as below:
"esjs HkkbZ jes'k o eka dks ?kk;y voLFkk esa xkao ds yksx ckx ekSds
ls mBkdj ?kj ij ysdj vk;s rks ns[kk fd esjs HkkbZ ds flj o
vka[k ij dqYgkM+h dh xgjh pksVs gksdj [kwu fudy jgs Fks o esjh
eka ds yykV ij dqYgkMh fd xgjh pksV gksdj [kwu fudy jgs Fks
o ekjihV ls esjh eka ds Lru ij eksjksa esa o vU; txg 'kjhj ij
dkQh pksVs FkhA"
and urged that on a bare perusal of the said portion of the
previous statement of the witness, it becomes clear that he was
not present at the spot and was created to be an eyewitness
subsequently. For criticizing the evidence of the witness, Shri
Menaria also referred to the admission made by him that his
brother remained admitted in the private hospital for ten days and
(10 of 19) [CRLA-520/2017]
thereafter he died in the same hospital. He also pointed out that
the witness categorically admitted that he reached the place of the
incident five minutes after his brother and others had been
beaten. Shri Menaria thus urged that Babulal also did not see the
incident and he too has been created to be an eyewitness of the
incident just in order to somehow or the other substantiate the
fabricated prosecution story.
He argued that even if the flimsy and highly contradictory
testimony of the eyewitnesses was to be believed, conviction of
the accused appellants for the offence punishable under Section
302 IPC cannot be sustained. He urged that the incident took
place on 08.02.2014 at 08:30 PM. Initial medical aid was provided
to Shri Ramesh at the Primary Health Centre, Rishabhdeo in the
early hours of 09.02.2014. He submitted that the police had
already been given information of the incident because in the four
injury reports Ex.P/7 of Smt. Champa, Ex.P/16 of Megha, Ex.P/17
of Babu and Ex.P/29 of Ramesh, the Medical Jurist PW.18 Dr.
Mukesh Kumar Bhagwat noted that the injured were being
examined on police request. He referred to the injury report
(Ex.P/29) of Ramesh wherein, the injuries on the head and above
the left eye were noted as lacerated wounds. Shri Menaria urged
that lacerated wounds obviously would be caused by a blunt
weapon and cannot be the result of blows given by an axe. He
submitted that Dr. Mukesh Kumar Bhagwat did not depose that he
referred Shri Ramesh to a higher centre for treatment and thus,
there is a serious gap in the prosecution story as to where the
injured remained after being medically examined at the
Rishabhdeo hospital. In this regard, he drew the Court's attention
(11 of 19) [CRLA-520/2017]
to the statement of Dr. Amit Kumar (PW.24) who was posted at
the Kanak Hospital and deposed that Ramesh got admitted in the
said hospital in a serious condition on the night of 10.02.2014 at
about 2:00 AM and expired on 13.02.2014 at 4:30 PM. Shri
Menaria urged that the gap of almost 24 hours regarding the
status of Shri Ramesh and the condition in which he was kept in
the intervening period after examination at the Primary Health
Centre, Rishabhdeo and before admission into the Kanak Hospital
has not been explained by the prosecution. It cannot be ruled out
that the injury suffered by Ramesh may have worsened during this
period due to lack of medical assistance or other extraneous
reasons. Shri Menaria further urged that the recoveries effected at
the instance of the accused cannot be relied upon because the
Investigating Officer Shri Govind Singh (PW.23) did not prove the
informations allegedly provided by the accused under Section 27
of the Evidence Act as per law and made a cursory effort by just
marking exhibits on the information memos without stating the
contents thereof during his sworn testimony and hence, the
informations and the recoveries allegedly effected in furtherance
thereof can not be read in evidence. Shri Menaria urged that
though the evidence of the eyewitnesses is highly flimsy and self-
contradictory but even if for the sake of arguments, their
testimony is to be believed then also, the charge under Section
302 IPC cannot be sustained because the medical jurist Dr.
Akhilesh Sharma (PW.19), while proving the postmortem report
(Ex.P/31) did not utter a single word that the head injury caused
to Shri Ramesh was grievous in nature. He urged that extradural
and subdural hamatomas were noted by the doctor at the site of
the head injury but there was no fracture of the skull bone and
(12 of 19) [CRLA-520/2017]
hence, the injury has to be treated as being simple in nature.
Hence, as per Shri Menaria the offence, if any, attributable to the
accused appellants cannot exceed Section 323 IPC or at best
Section 304 Part II IPC. On these submissions, Shri Menaria
implored the Court to accept the instant appeal, set aside the
impugned judgment and acquit the accused appellants or in the
alternative, suitably tone down the rigour of the charges with
consequential reduction in sentence.
Learned Public Prosecutor, on the other hand, vehemently
and fervently opposed the submissions advanced by the
appellants' counsel. He contended that the eyewitnesses are hail
from tribal background and thus trivial contradictions are bound to
occur in their evidence. However, the testimony of the witness
Babulal (PW.8) who was himself injured in the incident, is clinching
and convincing. The witness affirmed on oath that the three
accused appellants waylaid the deceased and brutally assaulted
him by axes and lathis. His evidence does not suffer from any
material infirmities and is fully corroborated by the medical
testimony. On these submissions, the learned Public Prosecutor,
implored the Court to affirm the impugned judgment and reject
the appeal.
We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the
impugned judgment and have minutely re-appreciated the
evidence available on record.
(13 of 19) [CRLA-520/2017]
At the first instance, we would like to discuss the medical
evidence available on record. It is an admitted position that
Ramesh and the other injured persons were assaulted in late
evening hours of 08.02.2014. The Charge No.1 framed by the trial
court reads that the assault was made on 08.02.2014 at about
7:30 PM.
Ramesh, Megha, Babu and Champa were taken to the
Primary Health Centre, Rishabhdeo in an injured condition where
they were examined by Dr. Mukesh Kumar Bhagwat (PW.18) who
issued the injury reports Ex.P/7 (Champa), Ex.P/16 (Megha),
Ex.P/17 (Babu) and Ex.P/29 (Ramesh). A significant feature of
these medical reports is that it is clearly noted therein that the
medical examination was being undertaken on police request
(Police Station Rishabhdeo). Thus unquestionably, before the
injured were brought to the hospital, the police had been informed
of the incident. The medical jurist, Dr. Mukesh Kumar Bhagwat
simply stated about the examination of the injured and proved
their injury reports. He did not give any opinion regarding the
nature of injuries suffered by the injured persons. In the injury
report (Ex.P/29) of Ramesh, the medical jurist noted presence of
two lacerated wounds, a bruise and a diffused swelling. Shri
Ramesh was taken to and got admitted at the Kanak Hospital,
Udaipur. Dr. Amit Dhing (PW.24) from Kanak hospital, appeared in
the witness box and stated that the injured Ramesh was brought
to the hospital on 10.02.2014 at 2:00 AM. Dr. Dhing proved the
patient admission form (Ex.P/36) wherein the date and time of the
admission of Ramesh is mentioned as 10.02.2014 at 2:00 AM. The
medical jurist did not state that he got x-ray/any other
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investigation conducted of the head injury suffered by Ramesh
during the entire treatment procedure which was spread over a
period of almost three days. Dr.Amit stated that the condition of
the patient was serious but he did not give any opinion regarding
the nature of the injuries suffered by Shri Ramesh. In cross-
examination, the doctor admitted that the head injury was not
caused by a sharp weapon. On a comparative analysis of the
evidence of Dr. Mukesh Kumar (PW.18) posted at the Primary
Health Centre, Rishabhdeo and Dr. Amit Dhing (PW.24), it comes
out that there is a clear gap of almost 24 hours regarding the
position of the injured Ramesh because none of the prosecution
witnesses stated as to where Ramesh was kept during the period
after which, he was examined at the Primary Health Centre,
Rishabhdeo and till he was admitted in the Kanak Hospital.
Dr. Akhilesh Sharma (PW.19) who conducted postmortem
upon the dead body of Shri Ramesh took note of four injuries on
the body of the deceased on which, scabs had developed. The
doctor stated that he noticed subdural as well as extradural
hematomas underneath the head injury. However, the doctor,
neither gave opinion regarding the nature of weapon nor did he
state that he noticed any fracture on the site of the head injury.
Thus, we are of the view that the prosecution has not led
convincing evidence to show that the injuries suffered by Ramesh
on 08.02.2014 were having direct nexus with his death.
Now we proceed to briefly discuss the evidence of the four
eyewitnesses on whose testimony the entire prosecution case
hinges. Sharda (PW.1), wife of the deceased submitted the written
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report (Ex.P/1) which we have noted to be highly belated as the
same was filed after more than 36 hours of the incident. As has
been noted above, four injured persons Ramesh, Champa, Megha
and Babu were taken to the Rishabhdeo hospital. Their medical
examination was conducted on police request as is reflected from
the injury reports. Manifestly thus, the police had been informed
of the incident well before the written report (Ex.P/1) came to be
filed.
The star prosecution witness Babulal (PW.8) categorically
stated that he and his parents had submitted an FIR to the police
much before the report lodged by Smt. Sharda. However, the said
report did not see the light of the day. It may be reiterated that
the FIR (Ex.P/1) submitted by Smt. Sharda came to be registered
36 hours after the occurrence of incident even though the police
was immediately informed about the incident as is apparent from
the noting of police request made in the injury reports Ex.P/7
(Champa), Ex.P/16 (Megha), Ex.P/17 (Babu) and Ex.P/29
(Ramesh). Hence, there is strong indication from the record of the
case to satisfy the Court that the prosecution has concealed the
original FIR and hence, adverse inference deserves to be drawn in
this regard.
Smt. Sharda (PW.1) admitted in her cross-examination that
she was at her house at the time of the incident and the villagers
told her that Ramesh had been beaten. Hence, she cannot be
accepted to be an eyewitness of the incident and her testimony is
more in the nature of hearsay.
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Champa (PW.4) stated that Dilip, Shankar, Prakash, Rakesh
and Hurma pursued Ramesh who came home and told her about
the incident. Later Dilip, Shankar, Hurma, Rakesh, Kanta and
Dilip's wife came to her house. She was inflicted a blow with an
axe by Prakash. Shankar gave her a lathi blow. Apparently thus,
the witness did not see the assault being made on Ramesh. In
cross-examination, Smt. Champa admitted that when Ramesh was
taken to Rishabhdeo hospital, the police had come there. They
gave out the details of the incident to the police. However, the
police took money and exonerated Hurma, Kanta and Rakesh who
were the actual assailants of her son. The evidence of this witness
also convinces us that the FIR actually lodged on the very day of
the incident has been concealed by the investigation agency for
oblique motives.
Megha (PW.6) also claimed to be an eyewitness of the
incident. In cross-examination, he admitted that at the time of the
incident, he was at his house. Upon hearing the cries of Ramesh,
he rushed to the spot on which, he and his wife were also beaten
by the assailants. Ramesh was taken to the Rishabhdeo hospital
where officers from the Police Station Rishabhdeo came. When the
police was in the hospital, a report was given to them. The witness
admitted that the police did not register the case on the initial
report given by them regarding the assault made on Ramesh even
though this report was given to the police well before the report
submitted by Sharda. The witness admitted that Hurma S/o Lala,
Kanta W/o Shri Hurma and Mewa S/o Shri Dilip were named in the
first report but the Sarpanch, villagers and those accused persons
conspired and got the second report filed in order to save
themselves.
(17 of 19) [CRLA-520/2017]
Babulal (PW.8) named the three appellants as being the
assailants in his examination-in-chief. In cross-examination, he
too admitted that he had given a report at the Kesariyaji police
station. However, the police did not register the same. This report
was given on the very same day of the incident. Sharda (PW.1)
gave the report (Ex.P/1) after the death of Ramesh. Babulal also
admitted that in the report, which he had lodged along with his
parents on the very day of the incident, Hurma, Rakesh, Kanta,
Megha and Jeeva were named as the assailants. However, the
police removed their names from the case. The witness was
confronted with his police statement (Ex.D/2) the Part A to B
whereof has been extracted above. On a pertinent question put to
Babulal in cross-examination, he admitted that he reached the
place of incident after his brother and others had been beaten.
When he reached the spot, he too was assaulted. He reached the
place of incident five minutes after the initial incident. Apparently
thus, there is a grave contradiction in the evidence of this witness
on the aspect as to whether he had actually seen Ramesh being
assaulted by the accused. A threadbare analysis of the material
available the incident of assault on Ramesh happening. The entire
material available on record, clearly reflects of gravely tainted and
arbitrary action by the investigation agency. The first report of the
incident has definitely been concealed. A critical analysis and
evaluation of the statements of the four eyewitnesses supra
convinces us that their testimony is highly contradictory and
hence, they cannot be held to be reliable witnesses.
Considering the fact that the initial report has been withheld;
the significant delay of 36 hours in lodging of the report Ex.P/1;
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the grave discrepancies in the names of the assailants as disclosed
by the four eyewitnesses, the significant time gap regarding the
condition of Shri Ramesh from 9th February to 10th February, 2014
creates a great doubt in the mind of the Court as to the reliability
of the entire prosecution case. Consequently, we are of the
opinion that it would not be safe to place reliance on such flimsy
evidence of unreliable eyewitnesses and the tainted investigation
conducted by the police so as to affirm conviction of the appellants
as recorded by the trial court. The discussion of the evidence
which was undertaken by the trial court at para No.34 of the
impugned judgment reveals an absolutely cursory and
lackadaisical exercise without considering the import of the
important loopholes, contradictions and shortcomings in the
prosecution story which we have discussed above. Hence, the
impugned judgment dated 01.03.2017 does not stand to scrutiny
and cannot be sustained. The same is thus, reversed and set
aside. The appellants are acquitted of the charges. The appellants
Dilip Aahari and Shankar Aahari Meena are on bail. Their bail
bonds are discharged. The appellant Shankar Aahari was granted
bail by this Court by order dated 13.11.2017 but was unable to
furnish bail bonds on account of his indigent condition. He shall
be released from prison forthwith, if not, wanted in any other
case.
The appeal is allowed in these terms.
However, keeping in view the provisions of Section 437-A
Cr.P.C. the accused appellants are directed to furnish personal
bond in the sum of Rs.15,000/- each before the learned trial
(19 of 19) [CRLA-520/2017]
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.
Record be returned to the trial court forthwith.
(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J
Sudhir Asopa/-
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