Rekha @ Anmoland Anr vs State
2022 Latest Caselaw 6867 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR


                 D.B. Criminal Appeal No. 878/2017

1.        Rekha @ Anmol D/o Amarchand
2.        Meena @ Neena W/o Amarchand, Both B/c Oad Rajput,

          R/o Ward No. 4, Indra Colony Chhatargarh, Bikaner.
                                                                    ----Appellants
                                    Versus
State Of Rajasthan
                                                                  ----Respondent


For Appellant(s)          :     Mr. Bhagirath Ray Bishnoi.
For Respondent(s)         :     Mr. B.R. Bishnoi, AGC.



             HON'BLE MR. JUSTICE SANDEEP MEHTA
              HON'BLE MS. JUSTICE REKHA BORANA

                              JUDGMENT

Date of Judgment :              09/05/2022


BY THE COURT : (PER HON'BLE MEHTA, J.)

1. The appellants herein have been convicted and sentenced as

below vide judgment dated 08.03.2017 passed by the learned

Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Bikaner

in Sessions Case No.77/2013:

Offences      Sentences                       Fine               Fine     Default
Under Section                                                    sentences


342 IPC           6          Months' Rs.500/-                    7 Days' S.I.
                  Imprisonment
302/34 IPC        Life Imprisonment           Rs.10,000/ 6 Months' S.I
                                              -

All the substantive sentences were ordered to run concurrently.

2. Being aggrieved of their conviction and sentences, the

appellants have preferred this appeal under Section 374(2) Cr.P.C.

(2 of 14) [CRLA-878/2017]

3. Facts relevant and essential for disposal of the appeal are

noted hereinbelow:

One Shri Omi Lal (PW-8) lodged a written report (EX.P/20) at

the Police Station Chhattargarh, District Bikaner on 08.10.2013 at

05.00 PM alleging inter alia that he and his brother Bhawani

Shankar both resided in the same house in Ward No.4,

Chhattargarh, District Bikaner. His brother was coming back after

making purchases from the market. Neena @ Meena, her

daughter and 3-4 persons were standing outside the house of

Neena. While his brother was passing from the front of house of

Neena, these persons attacked him, tied him with a rope and

dragged him inside the house of Neena where he was assaulted by

lathis and sticks and was gravely wounded. Neena had made an

illegal encroachment in Ward No.4 and was indulged in

prostitution activities. The residents of the locality were opposed

to this activity and thus, Neena started bearing a grudge and

owing to this animosity, his brother had been beaten. The

neighbours Ramlal, Jaitaram and the informant heard the cries of

Shri Bhawani Shankar on which, they ran towards the house of

the accused and realised that he had been dragged inside. They

immediately rushed to the Police Station and gave information

regarding the incident. The police reached the spot. An ambulance

was called and Bhawani Shankar was taken to the local hospital

from where, he was referred to Bikaner. On reaching Bikaner, the

doctors declared Bhawani Shankar to be dead. His brother was

having a sum of rupees 10,200/- with him which was snatched

away by Neena, her daughter Rekha @ Anmol and their

companions. He asserted in the FIR that call details of Neena and

(3 of 14) [CRLA-878/2017]

Rekha should be procured and proper inquiry be made regarding

their conduct.

On the basis of the report aforestated, FIR No.227/2013

(Ex.P/22) came to be registered at the Police Station Chhatargarh

for the offences punishable under Sections 302 & 143 of the IPC

and Section 3(2)(V) of the SC/ST Act and investigation was

commenced. Statements of material witnesses were recorded

under Section 161 Cr.P.C. Site inspection was carried out. Dead

body of Shri Bhawani Shankar was subjected to autopsy by a

Medical Board constituted at the PBM Hospital, Bikaner which

issued a postmortem report (Ex.P/15) taking note of 23 injuries

on the body of the deceased most of which were bruises and

abrasions. The only fracture was noted on the right wrist joint.

There was a lacerated wound admeasuring 2.5X1.5X1 cms. on the

liver underneath the injury on costal area which led to excessive

bleeding. 1.5 liters blood was found in abdominal cavity. It was

opined that injuries were caused by blunt weapon and were

antemortem in nature. The Board gave an opinion that the cause

of death of Shri Bhawani Shankar was cumulative effect of

multiple injuries leading to loss of blood and hypovolumic shock.

It may be stated here that the unknown assailants, referred

to in the FIR, were not identified during investigation. The accused

appellants were arrested on 08.10.2013 and the usual recoveries

were effected at their instance.

Investigation was concluded and charge sheet was filed

against the appellants herein for the offences punishable under

Sections 302/34 & 342 IPC and Section 3(2)(V) of the SC/ST Act.

The case was committed to the Court of the Special Judge, SC/ST

Act cases, Bikaner where charges were framed against the

(4 of 14) [CRLA-878/2017]

appellants for these offences. They pleaded not guilty and claimed

trial. The prosecution examined as many as 11 witnesses and

exhibited 25 documents in support of its case. The accused were

questioned under Section 313 Cr.P.C and upon being confronted

with allegations appearing against them in the prosecution

evidence, they denied the same and claim to have been falsely

implicated. After hearing the arguments advanced by learned

Public Prosecutor and the defence counsel and upon appreciating

the evidence available on record, the learned trial court acquitted

the appellants from the charge under Section 3(2)(V) of the SC/ST

Act but convicted and sentenced them as above. Hence this

appeal.

4. Shri Bhagirath Bishnoi, learned counsel representing the

appellants, advanced the following submissions for assailing the

impugned Judgment:

(i) that the written report (Ex.P/20) is highly belated;

(ii) that time of incident was not mentioned in the FIR and the

very presence of the first informant at the place of incident is

doubtful. On the other hand, while deposing on oath, the first

informant alleged that the incident took place on 07.10.2013 in

the evening. Thus, the gross delay of nearly 20 hours in lodging

the FIR brings the entire prosecution case under a grave doubt;

(iii) that while deposing on oath, Omilal (PW-8) and the eye-

witnesses Ramlal (PW-4) and Jaitaram (PW-7) did not attribute

any motive for the incident to the appellants herein;

(iv) The conduct of the first informant and the two eye-witnesses

in not making any effort whatsoever to save the victim, clearly

shows that they were not present on the spot.

(5 of 14) [CRLA-878/2017]

(v) that as the witnesses have not levelled any allegation

regarding the appellants having a motive to assault Shri Bhawani

Shankar, there was no reason as to why, they would randomly

catch hold of the victim, drag him inside their own house and

assault him;

(v) His last submission was that even if the prosecution case is

to be believed then also, apparently the only grievous injury found

on the body of the deceased was on his wrist. None of the other

vital organs except for liver was found damaged. No grievous

injury was noticed on the head or any other vital body part.

Hence, as per Shri Bhagirath Bishnoi, conviction of the

appellants herein for the offence under Section 302 IPC is

unwarranted and the same deserves to be toned down to Section

304 Part II IPC.

On these submissions, he implored the Court to accept the

appeal; acquit the accused appellants or in the alternative tone

down the offence from Section 302 to one under Section 304 Part

II and reduce the sentence awarded to the appellants to the

period already undergone by them which is nearly eight and half

years.

5. Learned Public Prosecutor, on the other hand, vehemently

and fervently opposed the submissions advanced by the

appellants' counsel. He contended that the first informant and the

two eye-witnesses Ramlal (PW-4) and Jaitaram (PW-7) had no

reason whatsoever to falsely implicate the appellants in this case.

They gave categoric evidence to the effect that they were

proceeding to see 'Ramleela' on 07.10.2013 in the evening at

about 9-10 O' Clock. They were passing by the house of Meena

(6 of 14) [CRLA-878/2017]

Devi when they heard fervent cries coming from the said direction.

On proceeding there, they saw that the appellants herein were

dragging Bhawani Shankar into their house. The witnesses were

also threatened and hence, they rushed to the police station and

gave information of the incident to the police. The police personnel

came to the spot, picked up Bhawani Shankar who was lying

injured in the house of Meena Devi and took him to the hospital.

He was referred to Bikaner where he was declared dead. Learned

Public Prosecutor urged that the appellants inflicted more than 23

stick blows all over the body of the victim. One of the blows

landed on the costal area which resulted into laceration of the liver

leading to excessive bleeding and thus, death of Shri Bhawani

Shankar was inevitable. He thus urged that conviction of the

appellants recorded by the trial court for the offences mentioned

above is justified and that the impugned Judgment does not

warrant any interference whatsoever. On these submissions, he

implored the Court to dismiss the appeal.

6. 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.

7. At the outset, we may note that the prosecution case suffers

from material infirmities and is full of loopholes, the first and

foremost being the gross delay in lodging of the FIR. It is relevant

to note that the written report (Ex.P/20) lacks material particulars

viz. date and time of the incident. Shri Omilal lodged the report at

the Police Station Chhatargarh on 08.10.2013 at 05.00 PM., but it

(7 of 14) [CRLA-878/2017]

was not mentioned therein that the incident took place on the

previous day i.e. on 07.10.2013. However, while deposing on

oath, the first informant Omilal (PW-8) as well as the eye-

witnesses Ramlal (PW-4) and Jaitaram (PW-7) stated that the

incident took place on 07.10.2013 at about 09.00 PM. Thus, this

important omission in the FIR regarding the date and time of the

incident, brings the entire prosecution story under a grave cloud of

doubt. The informant alleged in the report that the accused

appellants were indulged in prostitution activities and when they

tried to stop them, the appellants started bearing an ill-will

against them and that the incident was fueled with this motive.

However, while deposing on oath, none of these three eye

witnesses made any utterance as to the motive behind the

incident. Ramlal (PW-4) stated that the incident took place on

07.10.2013 at 09.00 PM. They were proceeding to watch

'Ramleela' and saw that Meena and Rekha had trussed Bhawani

Shankar with a rope and were dragging him into their house.

These two women assaulted Bhawani Shankar in their viewing.

The witnesses tried to intervene but the assailants made an

aggressive overture towards them on which, they rushed to the

Police Station and made a complaint. This conduct of the three

witnesses is totally unnatural. The assailants were two women

whereas the witnesses Ramlal (aged 30 years), Jaitaram (aged 42

years) and Omilal (aged 30 years) were young able-bodied men.

There was no reason as to why three grown up male witnesses

one of them being the brother of the victim, did not put up any

resistance and mutely allowed two women to tie up Bhawani

Shankar, drag him into their house and assault him in the manner

alleged. As per the site inspection report (Ex.P.3), the incident

(8 of 14) [CRLA-878/2017]

took place in the heavily populated area of Chhatargarh town.

Thus, if at all the witnesses had seen the incident as they claimed,

they could have raised a hue and cry and the neighbouring people

would have collected to save the victim from the assailants. All the

three witnesses claimed that when they tried to save Bhawani

Shankar, the accused ran behind them with sticks on which, they

went to the police station and made a complaint. Thereafter, the

ambulance came and the victim was taken to the hospital.

However, if there had been any iota of truth in this allegation of

the witnesses then, the complaint so lodged at the police station

would immediately have been registered in the Rojnamcha of the

Police Station Chhatargarh. It may be stated here that the place of

incident is at a distance of mere 1 Km. from the police station.

The witnesses further claimed that after they had submitted the

complaint at the police station, a team of the police officials came

with ambulance and picked up Shri Bhawani Shankar from the

house of the accused and took him to the hospital. However, no

officer from the Police Station Chhatargarh was examined to prove

this fact. Thus, conduct of the three so-called eye-witnesses

Ramlal, Jaitaram and Omilal in making no effort whatsoever to

save the deceased from the assault allegedly being made by the

appellants herein; in not filing an immediate report at the Police

Station Chhatargarh and the absence of the material particulars

regarding date and time of the incident in the written report

(Ex.P/20), makes the testimony of the three alleged eye-witnesses

(supra) doubtful and they fall clearly in the category of wholly

unreliable witnesses and no credence can be given to their

testimony.

                                          (9 of 14)                   [CRLA-878/2017]



       We    now   proceed      to    appreciate          the    evidence   of   the

prosecution witnesses other than the three alleged eye-witnesses:

PW-1 Karan Singh was the Maalkhana Incharge of the Police

Station Chhatargarh and he gave evidence regarding deposition of

the Maalkhana articles by the investigating officer.

PW-2 Prabhu Dayal was associated as a witness in the Fard

Supurdagi of the dead body of Bhawani Shankar (Ex.P/2).

PW-5 Dr. Sanjeev Buri conducted postmortem on the dead

body of Bhawani Shankar and his evidence has already been

discussed above.

PW-6 Devilal was posted as a Constable at the Police Station

Chhatargarh who carried the Maalkhana articles to the Forensic

Science Laboratory.

PW-9 Dileep Kumar is the brother of Bhawani Shankar who

used to stay at Jhunjhunu and after receiving an information

regarding the death of Bhawani Shankar, came down to Bikaner

and was associated as a witness in the Fard Surathaal/

Panchayatnama Lash of Bhawani Shankar (Ex.P/21).

PW-10 Bholaram was also associated as a witness in the

Fard Surathaal/ Panchayatnama Lash of Bhawani Shankar

(Ex.P/21).

PW-11 Amit Alha was posted as a Circle Officer in the Police

Station Khajuwala at the relevant point of time. He received the

file of FIR No.227/2013 for investigation because offence under

the SC/ST Act had also been applied in the case.

Manifestly thus, no witness from Police Station Chhatargarh,

who had allegedly proceeded to the place of incident and lifted

Shri Bhawani Shankar in an injured condition from the crime

scene, was examined in support of the prosecution case.

(10 of 14) [CRLA-878/2017]

8. Now, we proceed to discuss the evidence of the investigating

officer Shri Amit Alha (PW-11). He stated that he received the file

for investigation on 08.10.2013 and prepared the following

documents:

(i) Site Inspection Memo (Ex.P/3),

(ii) Seizure memo of blood stained soil (Ex.P/4),

(iii) Seizure memo of control soil (Ex.P/5),

(iv) Seizure memo of a pair of slippers, a cloth (Gamchha) and a

mobile alleged to be of Bhawani Shankar (Ex.P/6),

(v) Fard Surathaal Lash Panchayatnama (Ex.P/21),

(vi) Memo of handing over of dead body (Ex.P/2)

(vii) Seizure memo of blood stained clothes of the deceased

(Ex.P/7),

(viii) Arrest memo of accused Meena (Ex.P/8),

(ix) Arrest memo of accused Rekha @ Anmol (Ex.P/9),

(x) Information provided by Meena under Section 27 of the

Evidence Act (Ex.P/23),

(xi) Seizure memo of a wooden stick at the instance of the

accused Meena (Ex.P/10),

(xii) Information provided by accused Rekha @ Anmol under

Section 27 of the Evidence Act (Ex.P/24),

(xiii) Recovery memo of stick at the instance of Rekha (Ex.P/12),

(xiv) Seizure memo of a rope at the instance of the accused

Meena (Ex.P/11), and

(xv) Site inspection plan of the house of the accused (Ex.P/13).

In cross-examination, the witness admitted that the date and

time of the incident were not mentioned in the written report

(Ex.P/20). He did not make any investigation from the witnesses

(11 of 14) [CRLA-878/2017]

other than those named by the complainant in the written report.

He did not measure the distance between the place of incident and

the house of the accused. The incident took place at a spot located

at some distance from the main road. The SHO, Police Station

Chhattargarh reached the place of incident on receiving

information of the assault and authorised Phoolchand, ASI to take

the injured to the hospital. The witness could not say as to how

Phoolchand carried the injured to the hospital. The FIR came to be

registered after postmortem examination had been carried out on

the body of the deceased. The SHO told him orally that the

condition of the victim was precarious and thus, he had been sent

to the Bikaner hospital. However, neither the SHO nor Phoolchand,

ASI was examined during investigation or trial. The allegation

made in the FIR that 4-5 other persons were indulged in the

assault, was found to be false. The allegation made in the FIR that

these 4-5 persons tied the victim up by a rope and dragged him

inside the house of Meena and there, he was assaulted by lathis

and stick was also not substantiated. The I.O. agreed that the

incident did not take place inside the house of Neena. He did not

make any investigation regarding the angle of enmity between the

deceased, the complainant and the accused persons.

9. On a thorough consideration of the statement of the

Investigating Officer, we are of the firm view that the investigation

of the case was conducted in an absolutely slipshod manner. The

grave infirmities in the story set out in the written report were

ignored and were not enquired into. The Investigating Officer did

not make any effort to collect evidence on the important aspect as

to who picked up Bhawani Shankar from the crime scene and took

(12 of 14) [CRLA-878/2017]

him to the hospital after the alleged assault and as to the location

from where he was picked up. This was a most important facet of

the case which required proper investigation but the I.O.

hopelessly failed to discharge this duty as per law. As per the

statement of the first informant, Bhawani Shankar was initially

taken to the local hospital at Chhatargarh from where he was

referred to Bikaner hospital. Neither any doctor nor other medical

staff from the Chhatargarh Hospital was examined nor was any

document collected from the said hospital in support of this

apparently fictional story.

Had there been an iota of truth in the case of the

complainant that he and the two alleged eye-witnesses felt

threatened by the two women assailants and rushed to the police

station and made a complaint then, if not an FIR, at least an entry

would have been made in the Daily Diary. It was absolutely

essential for the investigating officer to have collected the relevant

Rojnamcha entries from the Police Station Chhatargarh so as to

substantiate this theory. As no such evidence was collected by the

I.O., the only presumption, which can be drawn, is that the

prosecution has completely concealed the evidence regarding the

time and place of the alleged assault made on Shri Bhawani

Shankar. A clear inference can thus be drawn that the alleged eye-

witnesses never saw the incident. Non-production of the relevant

medical record from the Chhatargarh Hospital and non-

examination of the witness/witnesses, who allegedly picked up

Bhawani Shankar from the place of incident and carried him to the

hospital, leads to an irrefutable conclusion of the entire

prosecution case being fabricated. Absence of date and time of the

assault made on Shri Bhawani Shankar and the theory put-forth in

(13 of 14) [CRLA-878/2017]

the written report (Ex.P/20) that the appellants herein were the

assailants, is unworthy of belief.

10. Once the evidence of the three so-called eye-witnesses is

discarded and there being total lack of evidence to show that the

deceased was found lying injured in the premises owned by or in

possession of the accused appellants, manifestly, no conclusion

can be drawn regarding they having assaulted Shri Bhawani

Shankar. The trial court failed to appreciate the evidence available

on record in an apropos manner and committed gross error in

placing reliance on the testimony of Omilal (PW-8), Ramlal (PW-4)

and Jaitaram (PW-7) who are totally unreliable witnesses. Their

evidence is full of infirmities and falsehood and as such, their

presence at the scene of occurrence is unbelievable.

11. As an upshot of the above discussion, conviction of the

appellants as recorded by the trial court vide impugned Judgment

dated 08.03.2017 is grossly illegal and is based on no evidence

whatsoever and hence, the same cannot be sustained.

12. Accordingly, the appeal succeeds and is hereby allowed. The

impugned Judgment dated 08.03.2017 passed by the learned

Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Bikaner

in Sessions Case No.77/2013 is hereby quashed and set aside.

The appellants (1) Rekha @ Anmol and (2) Meena @ Neena are

acquitted of the charges. The appellants are in custody and shall

be released from prison forthwith if not wanted in any other case.

(14 of 14) [CRLA-878/2017]

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

Cr.P.C., each appellant is directed to furnish a personal bond in the

sum of Rs.15,000/- 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.

14. Record be returned to the trial court.

                                   (REKHA BORANA),J                                       (SANDEEP MEHTA),J


                                    2-Tikam/Divya/-









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