Rajasthan High Court - Jodhpur
Teja Ram vs State Of Rajasthan on 27 May, 2022
Bench: Sandeep Mehta, Vinod Kumar Bharwani
(1 of 26) [CRLAD-67/2019]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 67/2019
1. Teja Ram S/o Sh. Surta Ram, Aged About 61 Years, B/c
Choudhary And R/o Village Elana , P.s. And Tehsil Jalore ,
Distt. Jalore (Raj) (Presently Lodged In Distt. Jail , Jalore)
2. Mangilal S/o Sh. Surta Ram, Aged About 36 Years, B/c
Choudhary And R/o Village Elana , P.s. And Tehsil Jalore ,
Distt. Jalore (Raj) (Presently Lodged In Distt. Jail , Jalore)
3. Venaram S/o Sh. Modaram, Aged About 37 Years, B/c
Choudhary And R/o Village Elana , P.s. And Tehsil Jalore ,
Distt. Jalore (Raj) (Presently Lodged In Distt. Jail , Jalore)
4. Smt. Sayati Devi W/o Sh. Teja Ram, Aged About 51
Years, B/c Choudhary And R/o Village Elana , P.s. And
Tehsil Jalore , Distt. Jalore (Raj) (Presently Lodged In
Distt. Jail , Jalore)
5. Smt Suwa D/o Sh. Teja Ram, Aged About 21 Years, B/c
Choudhary And R/o Village Elana , P.s. And Tehsil Jalore ,
Distt. Jalore (Raj) (Presently Lodged In Distt. Jail , Jalore)
----Appellants
Versus
State Of Rajasthan, Through Pp
----Respondent
For Appellant(s) : Mr. Sikander Khan
Mr. Shubham Chauhan
For Respondent(s) : Mr. R.R. Chhaparwal, P.P.
Mr. Pradeep Choudhary, for the
complainant
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
Judgment
Date of pronouncement : 27/05/2022
Judgment reserved on : 06/05/2022
BY THE COURT : PER HON'BLE MEHTA, J.
(2 of 26) [CRLAD-67/2019]
The appellants Tejaram, Mangilal, Venaram, Smt.
Sayati and Smt. Suwa Devi have been convicted for the offences
under Sections 148, 342/149, 323/149, 302/149 and 201/149 IPC
and sentenced as below vide the judgment dated 25.02.2019
passed by the learned Sessions Judge, Jalore in Sessions Case
No.15/2017 :-
Offence for which Sentences awarded
convicted
Section 148 IPC Three years' rigorous imprisonment and a
fine of Rs.5,000/- and in default of
payment fine, further to undergo three
months' simple imprisonment
Section 342/149 IPC One year's rigorous imprisonment and a
fine of Rs.1,000/- and in default of
payment fine, further to undergo one
month's simple imprisonment
Section 323/149 IPC One year's rigorous imprisonment and a
fine of Rs.1,000/- and in default of
payment fine, further to undergo one
month's simple imprisonment
Section 201 IPC Seven years' rigorous imprisonment and
a fine of Rs.10,000/- and in default of
payment fine, further to undergo six
months' simple imprisonment
Section 302 IPC Life imprisonment and a fine of
Rs.20,000/- and in default of payment
fine, further to undergo one year's simple
imprisonment
They have preferred the instant appeal under Section
374 (2) CrPC 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 appeal are noted hereinbelow :-
The deceased Hanjaram was married to appellant Suwa
Devi about 3 years before the incident. It was a marriage in
exchange, wherein the above-mentioned union was requited with
(3 of 26) [CRLAD-67/2019]
Sayali Devi, sister of the deceased, being married off to Mangilal,
paternal uncle of Suwa Devi. Hanjaram had been called by his in-
laws and went to Tejaram's home on 13.04.2017 and did not
return for a couple of days. Hanjaram's father Madaram made an
enquiry from Tejaram, father of Suwa Devi and father-in-law of
Hanjaram, regarding the whereabouts of Hanjaram, on which, he
gave a reply that the couple had gone to Khetlaji Sonana for
Darshan and would return in few days. Some influential villagers,
namely, Sawaram, Babraji and Jodhaji, made stringent enquiry
from the accused persons, on which, Tejaram and Mangilal
allegedly confessed that they had eliminated Hanjaram for once
and all and that his family members were free to proceed as they
desired. Kisturaram (P.W.19), brother of the deceased Hanjaram
lodged a written report (Ex.P/40) at the Police Station Jalore on
25.04.2017 at 09.46 p.m. incorporating the above facts and
alleged inter alia that on the very day, his brother had gone to his
matrimonial home, in the evening at about 6 to 7 o'clock,
Kanaram Choudhary (PW.10) was passing from near the home of
the accused persons, and that he saw that Hanjaram had been
tied up and Tejaram, Mangilal, Venaram, Suwa Devi and Sayati
Devi were launching a consorted attack on him with lathis.
Kanaram tried to intervene and save Hanjaram, on which, he was
threatened to go away or to face the same consequences.
Kanaram was all alone and it was late in the day and since, he had
been threatened, he went away from the place of incident. The
complainant further alleged that previously also, Hanjaram was
beaten by the accused persons, but they did not report the matter
so as not to expose the family relations in the society. On
(4 of 26) [CRLAD-67/2019]
receiving this report at the Police Station, supplementary
statement of Kisturaram was recorded, wherein he stated that
Hanjaram was married to Suwa Devi about 3 years back. He was
a simpleton. He had gone to his in-laws house on 13.04.2017 all
alone and did not return home. They made enquiry from Tejaram,
Mangilal and Venaram, on which, they replied that Hanjaram
would be sent back. The complainant feared that Tejaram,
Venaram, Mangilal, Sayati Devi and Suwa Devi might have beaten
up and either confined or killed Hanjaram.
On the basis of this report, FIR No.117/2017 (Ex.P/53)
came to be registered for the offences punishable under Sections
342, 323 and 143 IPC and investigation was assigned to
Champaram (P.W.18), SHO, Police Station Kotwali, Jalore. The
prosecution claims that Sahiram, ASI (P.W.5) apprehended
accused Tejaram and recorded an information (Ex.P/14) under
Section 27 of the Evidence Act at his instance on 26.04.2017 at
03.00 p.m., wherein the accused allegedly divulged that he had
buried the body of his son-in-law Hanjaram S/o Madaji Choudhary,
R/o Elana in a water channel at a distance of about 1 km. from
their agricultural field and that he could disclose the place where
the body was buried. The dead body of Hanjaram was recovered
buried under sand vide memo Ex.P/4 dated 26.04.2017, which
neither bears any time nor the same was signed by the accused.
The document memorandum (Ex.P/4) was attested by Pragaram
(P.W.17) and Sawaram (P.W.4) and there is no reference in the
document that the body was being recovered in furtherance of the
information provided by the accused Tejaram under Section 27 of
(5 of 26) [CRLAD-67/2019]
the Evidence Act. The SDM, Jalore was also present at the spot.
The memorandum clearly indicated that the face of the body was
unidentifiable. The body was totally covered in sand. However,
Kisturaram on observing the dead body stated that he could
identify the body to be of his brother Hanjaram. After the dead
body had been dug out, autopsy was conducted through a medical
board, which issued postmortem report Ex.P/3 dated 26.04.2017
taking note of fractures on the face and head area. The viceras
were preserved for serological examination so that the cause of
death could be ascertained. The details of the arrest of the
accused appellants, informations provided by them under Section
27 of the Evidence Act and the recoveries made in furtherance
thereof are reproduced herein hereinbelow in a tabular form :-
S. Name of Arrest Memo of Recovered
No. the memo information under articles and
arrested Section 27 of the seizure memo
accused Evidence Act
1. Teja Ram Ex. P15 Ex. P14 pertaining to
the location of the
body of the deceased
Ex. P46 pertaining to Stick (lathi)
the place where stick recovered and
(lathi) was hidden marked as Ex. P6
Ex. P49 pertaining to Tractor recovered
parking of tractor and marked as Ex.
with trolley P12
2. Mangilal Ex. P16 Ex. P47 pertaining to Stick (lathi)
the place where stick recovered and
(lathi) was hidden marked as Ex. P8
3. Vena Ram Ex. P17 Ex. P48 pertaining to Stick (lathi)
the place where stick recovered and
(lathi) was hidden marked as Ex. P10
4. Sayti Devi Ex. P42 Ex. P44 pertaining to
the place of incident
5. Suwa Devi Ex. P43 Ex. P45 pertaining to
the place of incident
(6 of 26) [CRLAD-67/2019]
The statement of Kanaram was recorded on
26.04.2017, wherein he claims to have seen the accused
appellants assaulting Hanjaram, who was tied up and confined.
After the accused had been arrested, lathis were recovered at the
instance of Tajeram, Mangilal and Venaram. The serological report
(Ex.P/51) dated 05.09.2017, issued after conducting tests on the
articles forwarded by the investigating agency, concluded that the
lathi recovered at the instance of accused Tejaram gave positive
test for presence of "AB" group human blood. However, all other
articles including the soil adhered to the dead body gave negative
test for presence of human blood. Thus, the blood group of the
deceased could not be ascertained. Charge-sheet was filed
against the accused appellants and the case was committed to the
Court of Sessions Judge, Jalore, where charges were framed
against them for the offences punishable under Sections 302 IPC
in the alternative 302/149 IPC, 201 IPC in the alternative 201/149
IPC, 148 IPC; 323 IPC in the alternative 323/149 IPC; 342 in the
alternative 342/149 IPC. The accused pleaded not guilty and
claimed trial. The prosecution examined 20 witnesses and
exhibited 54 documents to prove its case. The accused were
questioned under Section 313 CrPC and were confronted with the
circumstances appearing against them in the prosecution
evidence, which they denied and claimed to have been falsely
implicated. The trial court, proceeded to hear the arguments
advanced by the learned Public Prosecutor, learned counsel
representing the complainant and the defence counsel,
appreciated the evidence and thereafter proceeeded to convict
(7 of 26) [CRLAD-67/2019]
and sentence the appellants as above vide the impugned
judgment dated 25.02.2019, which is assailed in this appeal.
Mr. Sikandar Khan, learned counsel representing the
appellants, advanced the following arguments to assail the
impugned judgment seeking acquittal for the appellants :-
1. That the appellants had no plausible motive whatsoever for
murdering the deceased Hanjaram;
2. That the written report (Ex.P/40) came to be registered after
gross delay of 12 days because the deceased allegedly left for his
matrimonial home on 13.04.2017, whereas the FIR came to be
lodged on 25.04.2017 and that there is no justification for this
gross delay in lodging of the report.
3. That the so-called witnesses of alleged extrajudicial confession,
namely, Bawara Ji and Jodha Ji were not examined by the
prosecution. The witness Sawa Ji (P.W.4) did not state in his
evidence that the accused made any extrajudicial confession in his
presence;
4. That the prosecution could not lead plausible evidence to show
that the body, which was recovered vide memo Ex.P/4 was of
Hanjaram because when the body was dug out, it was in a totally
degenerated condition and was not fit for identification. He drew
the court' attention to the photographs Ex.P/26 to Ex.P/31,
wherein the dead body is visible as a hunched figure and is totally
covered in sand and there is no possibility that any identification
thereof could be made by the human eye. He, thus, urged that
the prosecution should have availed the procedure of DNA
(8 of 26) [CRLAD-67/2019]
comparison for establishing that the body was of Hanjaram. He
also referred to the statement of the medical jurist Dr.
Rameshchandra Chauhan (P.W.3), who admitted that the dead
body was not fit for identification.
5. That the statement of the so called sole eye-witness Kanaram
(P.W.10) is totally unbelievable. The written report (Ex.P/40)
refers to the fact that Kanaram saw Hanjaram being assaulted on
the very same day, he had gone to his matrimonial home.
However, in the written report, which came to be lodged after
nearly 12 days of the incident, there is no explanation as to why
Kanaram did not timely convey the fact of having seen the assault
to the family members of the deceased. Learned counsel for the
appellants urged that the witness Kanaram, upon being examined
on oath as P.W.10, tried to give an explanation that after he had
seen the incident, he proceeded to Jodhpur for personal household
work and when he came back to the village about 12-13 days
later, he came to know that Hanjaram was missing and his family
members were searching for him. In cross-examination, the
witness admitted that his house is at a distance of 6-7 kms. from
the place of incident. The witness could not explain as to why he
went to the place of incident even though he had no connection
whatsoever with the accused persons. The witness admitted that
Hanjaram, was earlier on also beaten by his in-laws and that is
why, he did not report the incident to the police or to anyone else.
The witness was confronted with his police statement (Ex.D/1),
wherein there is a total omission of the fact that he proceeded to
Jodhpur after the incident and that is why he could not give a
(9 of 26) [CRLAD-67/2019]
timely information to the family members of Hanjaram or to the
police. Mr. Khan, thus, urged that Shri Kanaram is purely a
chance witness and his presence at the spot at the time of the
incident is neither explainable nor believable. The gross delay on
part of the witness in disclosing the factum of assault to the family
members of the deceased or to the police brings his conduct under
grave suspicion and hence, the evidence of Kanaram is not
reliable.
In support of his contentions, Mr. Sikandar Khan,
learned counsel for the appellants placed reliance on the Supreme
Court judgment in the case of Harbeer Singh vs. Sheeshpal
and others [(2016) 16 SCC 418 ] and implored the court to
accept the appeal, set aside the impugned judgment and acquit
the accused appellants of the charges.
Per contra, learned Public Prosecutor and Mr. Pradeep
Choudhary, learned counsel representing the complainant,
vehemently and fervently opposed the submissions advanced by
the learned counsel for the appellants. They urged that the
prosecution has proved its case as against the appellants by
clinching direct evidence of Kanaram (P.W.10) and grave
incriminating circumstances of recovery of the dead body at the
instance of the accused Tejaram and the recoveries of lathis at the
instance of Tejaram, Mangilal and Venaram vide seizure memos
Ex.P/6, Ex.P/8 and Ex.P/10. They, thus, implored the court to
uphold the impugned judgment and dismiss the appeal.
(10 of 26) [CRLAD-67/2019]
We have given our thoughtful consideration to the
submissions advanced at bar and have thoroughly re-appreciated
the evidence available on record.
The prosecution case is primarily based on the direct
evidence of Kanaram (P.W.10) and the circumstantial evidence in
the form of motive and recoveries. It was alleged in the written
report (Ex.P/40), that Hanjaram, who was married to appellant
Suwa Devi about 3 years before the incident, was called to his
matrimonial home and left his own house and proceeded there on
13.04.2017. Kisturaram (P.W.19), the first informant alleged in
his evidence that he received a call from his father that Hanjaram
had proceeded for his in-laws house, but did not return. His
father asked the accused Tejaram, who replied that Hanjaram and
his wife had gone to Khetlaji Sonana for Darshan. Kanaram met
him and informed that he had seen Hanjaram being assaulted by
Tejaram and his family members in the agricultural field of
Purohits. On receiving this information, Kisturaram filed the
report Ex.P/40. In cross-examination, the witness admitted
that he had got the report drafted about 2 to 3 hours before
the dead body was recovered. However, either this assertion
of the witness is incorrect or the memorandum Ex.P/4 dated
26.04.2017 is a fabricated document. The reason for reaching to
this conclusion is that the FIR was received by the SHO, Police
Station Kotwali, Jalore on 25.04.2017 at 09.46 p.m., whereas the
dead body was shown to have been recovered on 26.04.2017. Be
that as it may. In the written report Ex.P/40, there is a very
important circumstance, which creates a grave doubt on the
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truthfulness of the entire prosecution story because there is no
reference in the report as to when Kanaram told the witness that
he had seen the accused appellant assaulting Hanjaram.
Now we proceed to briefly summarize and critically
analyze evidence of the witnesses examined by the prosecution.
Vardaram (P.W.1) is a formal witness of site inspection
plan (Ex.P/1) and Panchnama Lash (Ex.P/2).
Nainaram (P.W.2) is also a formal witness, who proved
the Panchnama Lash (Ex.P/2). In cross-examination, the witness
admitted that the entire body was decomposed and was not fit to
be identified.
Dr. Rameshchandra Chauhan (P.W.3) was a member of
the medical board, which conducted autopsy on the dead body.
He stated that the exhumed body was fully covered in sand. Its
face and head were totally crushed and that is why the Board
withheld the final opinion regarding the cause of death awaiting
the forensic reports. In cross-examination, the doctor admitted
that the face of the dead body was crushed to such an extent that
it could not be identified. The doctor further admitted in cross-
examination that at the time of postmortem, the teeth were
preserved from the dead body for conducting DNA examination.
Sawaram (P.W.4), who, as per the FIR was a witness of
extrajudicial confession, did not state so when examined on oath.
He proved various formal documents, viz. Panchnama Lash
(Ex.P/2), Surat Haal Lash (Ex.P/4), Supurdginama Lash (Ex.P/5),
site inspection plan (Ex.P/1), seizure memos of lathis recovered at
(12 of 26) [CRLAD-67/2019]
the instance of accused Tejaram (Ex.P/6), Mangilal (Ex.P/8) and
Venaram (Ex.P/10). In cross-examination, the witness stated that
the dead body was decomposed, but he could identify the same by
its face. He admitted that the entire body was covered in sand.
When the dead body was dug out, the accused was not present at
the spot. Kisturaram, brother of the deceased identified the dead
body after it was dug out.
Sahiram (P.W.5) stated that he was posted as ASI at
the Police Station Kotwali, Jalore. On 26.04.2017, Tejaram, who
was in custody, gave him information (Ex.P/14) regarding
concealment of the dead body underneath the ground in
Khodawala at a distance of 1 km. from their agricultural filed. In
cross-examination, the witness admitted that he did not know as
to when Tejaram was arrested. The information was given by
Tejaram at the police station. He did not go to the spot.
Tejaram gave the information on 26.04.2017 at 3 o'clock in the
afternoon.
Ukaram (P.W.6) was yet another formal witness of
Panchnama Lash (Ex.P/2).
Bhagaram (P.W.7) was associated in recovery of tractor
trolley from the field of Tejaram vide memorandum Ex.P/12.
Choparam (P.W.8) gave evidence stating that Tejaram
had gone to meet his wife, who had gone to her parental home.
He did not return. They waited for two to three days and then
they approached Tejaram and made an enquiry from him.
Tejaram gave evasive replies. Finally he stated that he did not
have any idea as to the whereabouts of Hanjaram. The police dug
(13 of 26) [CRLAD-67/2019]
out the dead body from the ground. Hanjaram was a simpleton
and his wife did not like him. Thus, she mostly stayed at her
father's house.
Ramchandra (P.W.9) was posted as a Constable at the
Police Station Kotwali, District Jalore. He was associated in the
arrest of appellants Tejaram, Mangilal and Venaram vide memos
Ex.P/15 to Ex.P/17 respectively and identification of the place of
incident by the accused Sayati Devi and Suwa Devi.
Kanaram (P.W.10), resident of Village Elana, is the star
prosecution witness, on whose direct testimony the entire case
hinges. He stated on oath that he was a LIC agent. On
13.04.2017 in the evening at about 6-7 o'clock, he had gone to
Village Elana in relation to LIC business with Bhuraram. While
returning, his bike got punctured. He contemplated leaving the
bike at the field of Tejaram and thus, he proceeded in that
direction. When he reached near the field of Tejaram, he heard
distressed cries of a man and saw that Hanjaram had been tied up
to a tree and was being assaulted by Tejaram, Mangilal, Venaram,
Tejaram's wife Sayati Devi and Hanjaram's wife Suwa Devi, who is
daugther of Tejaram, all of whom were armed with lathis. The
witness claimed that he requested the assailants to refrain from
beating Hanjaram, on which, he was theatened that he should go
away or else he would meet the same fate. On being threatened,
the witness allegedly proceeded to Jodhpur for his domestic work
on the very same day and returned to the village about 12-13
days later, on which he heard that Hanjaram was not traceable
and his family members were looking out for him, upon this, he
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approached Kisturaram, brother of deceased Hanjaram, and told
him about the incident of assault on Hanjaram, which he had
witnessed. On the next day, the dead body of Hanjaram was
recovered buried underneath the ground near the field of Tejaram.
He heard the villagers talking that Hanjaram was a simpleton and
his wife disliked him and wanted to go in Nata and that is why,
Suwa and her family members had killed Hanjaram so as to
eliminate him from the fray and clear her way. The witness stated
that he was associated in the site inspection, which was carried
out by the police and verified the memorandum Ex.P/1. In cross-
examination, the witness admitted that his house was at a
distance of 6-7 kms. away from the place of incident. The
distance between his house and the well of Bhura Ji is 6-7 kms.
The witness further stated that Bhuraram's well is closer to his
house as compared to Tejaram's well. Later on the witness
changed the version and stated that Bhuraram's well is further
ahead from his house as compared to Tejaram's well. He stated
that his bike got punctured about half a km. ahead of field of
Tejaram and the place was equidistant from the well of Bhuraram.
He did not place his motorcycle at the field of Tejaram and instead
dragged it back to his own house. He stated that the police
station is located at a distance of 7 kms. from his house.
Hanjaram's matrimonial relatives had beaten him up earlier also.
The deceased was not related to him, but was of the same caste.
He stated that he gave information at the police station 13 days
after the incident. However, in the next breath, he stated that he
did not inform the police and rather told the brother of the
deceased regarding the assault. He stayed at Jodhpur for 13 days
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and returned to his village on the evening of 24th. The police
recorded his statement after the dead body had been recovered.
The witness was confronted with his police statement (Ex.D/1)
regarding the omission of the fact that he told Kisturaram
regarding the incident, but the witness could not explain the
same. On a perusal of the police statement (Ex.D/1) of the
witness, it becomes evident that there is a total omission of the
fact that after allegedly having seen the incident, the witness
proceeded to Jodhpur and returned to th village 13 days later. He
did not utter a single word as to where he stayed from the date he
allegedly saw the incident till his police statement (Ex.D/1) was
recorded on 26.04.2017. Apparently, thus, there is a total lack of
explanation on part of Shri Kana Ram as to why he kept silent for
almost 13 days after having seen the alleged assault being made
on Hanjaram. It is an admitted position that the place of incident
is 6-7 kms. away from the house of the accused. Thus, very
presence of Kana Ram at the place of incident when the alleged
assault was going on is doubtful. While trying to explain as to
why he was going towards the field of the accused, the witness
claimed that his motorcycle got punctured and thus, he wanted to
leave it at the field of Tejaram. However, after being threatened,
he decided not to do so and proceeded to his own house with the
punctured motorcycle. This circumstance also creats a doubt on
the truthfulness of Kanaram's testimony. He had allegedly gone to
meet Bhuraram for some LIC business and claimed that his
motorcycle got punctured at a distance of half a km, equidistant
from the field of Bhuraram and the field of the accused. Thus,
there was no rhyme or reason as to why the witness would choose
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the field of Tejaram for parking his motorcycle rather than going to
the field of Bhuraram, with whom he was engaged in LIC business.
Furthermore, there was no possibility that the witness, who is a
handicapped man, as per the police statement Ex.D/1, could have
dragged his punctured motorcycle for a distance of almost 6 to 7
kms. after he decided not to park the same at the field of the
accused. In natural course of events, the witness would have
chosen to park the punctured motorcycle at the field of Bhuraram.
Thus, the important circumstances (a) gross delay in disclosing
the factum of having seen the alleged assault having been made
on Hanjaram to the relatives; (b) a remote chance of the witness
being present at the place of the incident at the relevant point of
time; (c) his unnatural conduct after the incident and (d) the
grave contradictions inter se beteen the sworn statement and 161
CrPC statement (Ex.D/1), make the testimony of Kana Ram totally
doubtful. Even if the flimsy explanation of the witness that he had
proceeded to Jodhpur soon after having seen the incident is
accepted, then too, he admitted that he returned to the village on
24.04.2017. If that was so, then the witness would definitely be
expected to immediately share the vital information, which he
claimed to be possessing with the family members of Hanjaram, if
not with the police. Thus, we have no hesitation in concluding
that the evidence of Kanaram (P.W.10), who claims to be eye-
witness of the incident, is totally unreliable for the following
reasons :-
1. His silence and non-disclosure of the incident to either the
family members of the victim or to the police for almost 13 days.
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2. He being purely a chance witness and there being hardly any
possibility of his presence at the place of incident at the relevant
point of time.
3. The flimsy explanation given by the witness for proceeding to
the field of the accused in a purported attempt to park his
punctured motorcycle; not doing so and then allegedly dragging
the motorcycle for a distance of almost 6 to 7 kms. in a punctured
state.
4. His flimsy belated explanation that he was not present at the
village for almost 14 days having left for Jodhpur immediately
after seeing the alleged assault.
Hon'ble the Supreme Court considered the aspect of
reliability of evidence of a chance witness in the case of
Shankarlal Vs. State of Rajasthan, reported in 2004 AIR SC
3559 and considering the delay in disclosure of the incident
attributed to the witness, Hon'ble the Supreme Court held that the
evidence of a chance witness whose presence at the place of
incident is doubtful, would have to be discarded. Hon'ble the
Supreme Court held as below :-
"5. Even according to the prosecution the only
witness to the incident in question is PW-6
therefore as contended by learned counsel for the
appellant we will have to examine his evidence
carefully. If we do so then we notice that on the
date of incident he had gone to a village Upli for
some work. From there he came back by bus at
about 11'O clock. He then allegedly went to the
village to meet Ram Rakh where he was told by
his wife that the latter had gone to the field. It is
the prosecution case itself that the distance
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between the field of Ram Rakh and the village is
about 4-5 miles and PW-6 covered that distance
on foot and when he reached near the field of
Ram Rakh he heard a quarrel and when he went
towards the place of quarrel he saw the appellant
attack the deceased with an axe. It is his further
case that when he reached near the deceased the
appellant ran away. It is at this point of time he
states that he got scared and he took a different
route than the one he took on the way and
reached the village at about 4 or 4.15 p.m. It is
his case that when he went to the house of Ram
Rakh he could not find him therefore he came
near the village square where he met PW-2 Khyali
Ram. From the above evidence of PW-6 it is
apparent that though there were persons
available on his way back, he did not inform
anybody about the incident. Even when he
reached the village and met Ram Rakh's wife he
did not inform her about the incident and it is for
the first time he informs about this incident to
PW-2 at the village square at about 4.15 p.m.
Contrary to what he stated in the examination in
chief that he saw only one assault on the
deceased, in the cross examination he stated that
he saw the appellant attack the deceased twice
and both the injuries were caused in his
presence. It is also to be noticed from his cross
examination that when he met PW-2 Khyali Ram
and told him about the incident in question but
PW-2 supposedly told him that he had already
come to know of the incident from PW-14. The
prosecution has not found how PW-14 came to
know of the incident. In this background if we
appreciate the evidence of PW-6 we notice
the fact that he is purely a chance witness
whose presence at the place of the incident
(19 of 26) [CRLAD-67/2019]
is highly doubtful. His conduct too seems to
be unnatural in not informing anyone else in
the village until he met Khyali Ram at the
village square. We also notice that there is
unexplained delay in filing the complaint
inasmuch as according to the prosecution the
incident in question took place at about 1.30 p.m.
and a complaint was lodged only at 3.15 a.m. on
5.4.1980. Though the distance is about 30 miles
from theplace of incident, the complainant had
the facility of using the tractors available in the
village and they did use the same for travelling to
the Police Station. In such circumstances this
unexplained long delay also creates a doubt in
our mind as to the genuineness of the
prosecution case. Once we are not convinced with
the evidence of PW-6 then there is no other
material to base a conviction on the appellant
hence we are of the opinion that the appellant is
entitled to the benefit of doubt therefore this
appeal succeeds and is allowed. The judgment
and order of conviction of the 2 courts below are
set aside. The appellant is acquitted of the charge
framed against him. From the records we notice
that the appellant is on bail. If so his bailbonds
shall stand discharged."
[Emphasis supplied]
Thus, the evidence of Kana Ram (P.W.10) is fit to be
discarded.
Ashok Kumar (P.W.11) was the photographer, who took
the photographs (Ex.P/19 to Ex.P/33) of the dead body and the
place of recovery.
(20 of 26) [CRLAD-67/2019]
Bagduram (P.W.12) was posted as ASI at the Police
Station Kotwali on the relevant date and was associated in the
arrest of the accused Tejaram, Mangilal and Venaram and
identification of the place of assault by Sayati Devi and Suwa Devi.
Rajendra Singh (P.W.13) was the SDM, who claims to
be present in the process of digging out of the dead body.
Birbalram (P.W.14) was the Malkhana Incharge of the
Police Station Kotwali, Jalore at the relevant time and gave out
details regarding the deposit and transit of Muddamal articles in
and through the Malkhana.
Mewaram (P.W.15) was the carrier Constable, who
carried the Mudda Maal articles to FSL.
Devaram (P.W.16) was a Constable posted at the S.P.
Office, Jodhpur, who prepared the forwarding documents of the
Mudda Maal articles.
Pragaram (P.W.17) was associated in the recovery
proceedings of the dead body and preparation of Panchnama Lash.
He was declared hostile by the Public Prosecutor.
Champaram (P.W.18) was the SHO, Police Station
Kotwali, Jalore, who registered the FIR and conducted
investigation of the case. The witness stated that while he was
undertaking investigation, the Constables Naarayan Lal and
Dharmpal called him on mobile and shared an information that
during the course of searching the fields in and around Elana, they
reached an area near the field of Tejaram and saw freshly dug up
soil and suspected that the dead body of Hanjaram could be
(21 of 26) [CRLAD-67/2019]
buried there. On this information, the SHO informed the S.P.,
Additional S.P. and C.O. Jalore and proceeded to the spot with
Bagduram, ASI and the Circle Officer. The S.P., Jalore, Additional
S.P., Jalore and the S.D.M. also came there. The land was dug up
with the aid of a JCB. Some skin of feet and human hair showed
up during the process of digging. Sahiram, A.S.I., was making an
enquiry from the accused Tejaram, who had been brought to the
police station for questioning. Tejaram gave an information to
Sahiram that he and his family members had killed Hanjaram and
buried the dead body. Sahiram allegedly brought Tejaram to the
place of incident. The place pointed out by Tejaram was dug up
with the aid of JCB and the dead body of Hanjaram was recovered.
Formal steps of investigation were undertaken; the accused
persons were arrested, recoveries were effected and thereafter
charge-sheet came to be filed in the court concerned. In cross-
examination, the witness admitted that the body was totally
decomposed, but the brother Kisturaram identified it. The face
was totally beyond recognition. The Investigating Officer claimed
that Hanjaram was a simpleton and that he was killed so as to
open way of re-marriage for his wife Suwa Devi. The assertion
of the witness that Tejaram pointed out the place from where the
dead body was dug out is totally false for the simple reason that
the memorandum Ex.P/4 neither refers to the presence of Tejaram
at the spot nor the same bears his signatures. The Investigating
Officer claimed that Sahiram brought Tejaram to the place of
incident. However, as has been noted above, Sahiram
categorically stated that he did not proceed to the place, from
where the dead body was recovered.
(22 of 26) [CRLAD-67/2019]
Kisturaram (P.W.19) was the first informant. He stated
that Hanjaram was a simpleton and that is why his wife Suwa Devi
and his in-laws did not like him. About a year before the incident,
the in-laws had beaten up Hanjaram. The witness stated that he
was not at his home. His father called and told him that Hanjaram
had left the house saying that he was going to his in-laws' place,
but was not traceable for the last 3 to 4 days. His father also told
him that he had made an enquiry from Tejaram, who gave evasive
replies regarding the whereabouts of Hanjaram. The witness
came back to his village about 12 days after disappearance of
Hanjaram. On the very same evening, Kanaram told him that he
had seen the accused persons assaulting Hanjaram at their field.
He got the report (Ex.P/40) drafted and submitted the same to the
police. The police officers got the body recovered the day after
the report was submitted. Heel of the dead body was split and
that is why he could identify the same. Hanjaram's in-laws
wanted to re-marry Suwa to some other man and that is why,
they eliminated Hanjaram. In cross-examination, the witness
admitted that the ground from where the dead body was
recovered appeared to be freshly dug up and that is why they,
suggested to the police that the body could be buried at that
place. He agreed to the narration made in the Surat haal Lash
Ex.P/4 that the facial features of the body were not recognizable.
Madaram (P.W.20) was the father of deceased
Hanjaram. He stated that Hanjaram was a simpleton and that is
why his wife did not like him. She would rarely stay at the
matrimonial home and would often go away to her father's house.
(23 of 26) [CRLAD-67/2019]
About 16 months ago, in-laws of Hanjaram called him on a false
pretext that he should come and take Suwa with him. Hanjaram
proceeded at 5 p.m. and did not return home for 4 days, on
which, the witness asked Tejaram, who replied that Hanjaram had
gone to Sonana Khetlaji for Darshans. Hanjaram did not return
for many days, on which he called his other son Kisturaram. After
Kisturaram came, Kanaram told him about the incident. The
evidence of this witness is also hardly relevant except to the
extent that he claimed that Suwa did not like Hanjaram.
After considering the entirety of evidence as above, it
becomes clear that the theory of motive, which has been
portrayed by the prosecution witnesses, is basically founded on an
assumption that Hanjaram was a simpleton and thus, his wife, the
accused Suwa Devi, did not like him. The family members of
Suwa Devi wanted to re-marry her and that is why Hanjaram was
called by the accused persons and was killed. However, the
circumstance of motive in itself would not be sufficient to prove
the case setup by the prosecution. Even if it is assumed that
Suwa Devi did not have great liking for her husband, then too, it
cannot be presumed that this fact by itself would give her a
motive to kill Hanjaram. It is an admitted position that the
families were involved in a cross relationship and hence, this
vague theory of motive setup by the prosecution witnesses cannot
be considered sufficient to hold that the accused had a cause to
murder Hanja Ram.
Motive, in isolation cannot constitute evidence sufficient
enough to bring home the charge of murder. For proving this
(24 of 26) [CRLAD-67/2019]
charge, the prosecution would have to lead clinching direct/
circumstantial evidence which could then be corroborated by
evidence of motive.
It may be stated here that the prosecution tried to pin
the important circumstance of recovery of Hanjaram's dead body
on to the accused Tejaram. In this regard, it was claimed that
Tejaram gave information (Ex.P/14) to the ASI Sahiram (P.W.5)
and in furtherance thereof, the dead body was recovered.
However, this theory of prosecution is totally falsified when we
consider the document (Ex.P/4) i.e. the Surat Haal Lash which is
the only memorandum pertaining to the recovery of the dead
body. This document, neither refers to presence of the accused
Teja Ram at the place of incident, nor does it bear his signature
for other identifying mark. Thus, without any question, the
recovery of the dead body cannot be held to have been effected in
furtherance of the information allegedly provided by the accused
Tejaram under Section 27 of the Evidence Act. It was claimed in
the written report (Ex.P/40) that the accused made an
extrajudicial confession in presence of Sawaji, Bawaraji and
Jodhaji. As has been narrated above, Sawaji (P.W.4) did not utter
a single word in his evidence that the accused made any
extrajudicial confession before him. Bawaraji and Jodhaji were
not examined in evidence. Thus, not an iota of evidence was led
to substantiate the allegation of extrajudicial confession.
So far as the recoveries of lathis effected at the
instance of the accused are concerned, suffice it to say that a bare
perusal of the FSL reports (Ex.P/50, 51 and 52) makes it clear
(25 of 26) [CRLAD-67/2019]
that the prosecution could not lead evidence to establish the blood
group of the deceased. Thus, the recovery of lathis also loses
significance.
The most significant piece of evidence on which the
prosecution relied upon was the testimony of the so called eye-
witness Kanaram (P.W.10). We have thoroughly discussed his
evidence (supra) and have found him to be a totally unreliable
made up chance witness and hence his evidence deserves to be
discarded. Once the evidence of Kanaram is excluded from
consideration, apart from the theory of motive, there remains
nothing on the record of the case so as to affirm the guilt of the
accused. For the sake of repetition, it may be stated here that the
circumstance of motive in isolation cannot be considered sufficient
to affirm the guilt of the accused for the charge of murder.
Resultantly, we are of the firm view that the
prosecution could not lead a reliable evidence to bring home the
charges against the accused appellants and they are entitled to be
acquitted by giving them the benefit of doubt. Thus, the
impugned Judgment dated 25.02.2019 passed by the learned
Sessions Judge, Jalore in Sessions Case No.15/2017, whereby the
accused appellants Tejaram, Mangilal, Venaram, Smt. Sayati and
Smt. Suwa Devi have been convicted and sentenced for the
offences under Sections 148, 342/149, 323/149, 302 and 201 IPC
is quashed and set aside. The appellants are acquitted of all the
charges. They shall be released from prison forthwith, if not
wanted in any other case.
The appeal is allowed accordingly.
(26 of 26) [CRLAD-67/2019]
However, keeping in view the provisions of Section
437-A CrPC, each of the appellants shall furnish a personal bond
in the sum of Rs.40,000/- and a surety bond in the like amount
before the learned trial court, which shall be effective for a period
of six months to the effect that in the event of filing of a Special
Leave Petition against the present judgment, on receipt of notice
thereof, the appellants shall appear before the Supreme Court.
(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J
Pramod/-
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