Dhani Ram vs State Of Rajasthan Through P P
2023 Latest Caselaw 102 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

             D.B. Criminal Appeal No. 1174/2017

1.     Bhagwati S/o Keshav Singh, R/o Abdulpur, Police Station
       Kanchanpur, District Dholpur Rajasthan.
       (At Present in District Jail, Dholpur)
2.     Rameshwar S/o Keshav Singh, R/o Abdulpur, Police
       Station Kanchanpur, District Dholpur Rajasthan.
       (At Present in District Jail, Dholpur)
3.     Pappu @ Ramsewak S/o Keshav Singh, R/o Abdulpur,
       Police Station Kanchanpur, District Dholpur Rajasthan.
       (At Present in District Jail, Dholpur)
                                                                  ----Appellants
                                   Versus
State Of Rajasthan Through PP
                                                                 ----Respondent

Connected With D.B. Criminal Appeal No. 1175/2017 Dhani Ram S/o Keshav Singh, R/o Abdulpur, Police Station Kanchanpur, District Dholpur Rajasthan.

(At Present In District Jail, Dholpur)

----Appellant Versus State Of Rajasthan Through PP

----Respondent

For Appellant(s) : Mr. Suresh Kumar Sahni, Adv.

Mr. Ram Mohan Sharma, Adv.

Mr. M.S. Solanki, Adv.

For Respondent(s) : Mr. Javed Choudhary, Addl. G.A.

Mr. Govind Prasad Rawat, Adv.

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BIRENDRA KUMAR

JUDGMENT RESERVED ON : 15.12.2022 DATE OF PRONOUNCEMENT : 04.01.2023

(PER HON. BIRENDRA KUMAR, J.)

(2 of 11) [CRLA-1174/2017]

1. The appellants above named faced trial in Sessions Case

No.07/2015 arising out of FIR No.406/2014 registered with Police

Station Kanchanpur. The learned trial Judge found appellant

Bhagwati guilty under Section 302 of IPC. Other appellants were

found guilty under Section 302/34 of IPC and all the appellants

were further found guilty under Sections 336/34 and 307/34 of

IPC. Imprisonment for life was awarded to all the appellants for

offences under Sections 302/34 and 307/34 of IPC. Fine of

Rs.1,000/- and in default of payment of fine, two months simple

imprisonment was also ordered. For the offence under Section

336/34 of IPC, one month simple imprisonment was awarded.

2. On the date of judgment by the learned trial Judge, appellant

Dhani Ram was not present hence, by the impugned judgment

dated 03.06.2017, rest three were found guilty and sentenced as

above, whereas appellant Dhani Ram was convicted by the

impugned judgment dated 05.06.2017 and was sentenced on the

same day. Hence the two appeals aforesaid.

3. The prosecution case as disclosed in the FIR is that on

12.12.2014 at about 07:30 A.M., informant (PW.1) along with his

cousin brother Komal Singh (PW.8) was going through the

newspaper near his house. The brother of the informant namely

Bablu (deceased) and Kamal Singh (PW.7), Nawal Singh (PW.3),

Vivek Singh @ Bantu (PW.6) were also reading the news papers.

At the time, appellants Rameshwar, Bhagwati, Pappu @ Ramsewak

and Dhani Ram armed with Katta (short gun), gun and Lathi came

out of their house and stated that they would kill the informant.

The accused persons initially started hurling stones, the

prosecution side also started retaliating to save themselves.

(3 of 11) [CRLA-1174/2017]

Thereafter, the accused persons returned and attacked again.

Accused Rameshwar fired with his 12 bore gun, however the shot

crossed above the head of the informant. Thereafter, the accused

Bhagwati fired with his 315 bore Indian gun, which hit at the chest

of Bablu and Bablu fell down. The accused Pappu and Dhani Ram

made several fire at the informant but the informant escaped. In

the meantime, villagers assembled there, then the accused

persons fled away from the site. The police came and took the

injured to Dholpur Hospital and the injured died as soon as he

reached the hospital.

4. The prosecution examined altogether 12 witnesses. The

defense also produced four witnesses. Several documents have

been exhibited in this case.

5. We have thoroughly gone through the oral and documentary

evidences on the record.

6. Learned counsel for the appellants contends that the

testimony of eye-witnesses PW.1 Krishna Singh, PW.3 Nawal

Singh, PW.6 Vivek Kumar, PW.7 Kamal Singh, PW.8 Komal Singh

and PW.10 Mohar Singh would reveal that they have deposed in a

parrot like manner to support the FIR. All these witnesses are

family members of the deceased. They have admitted long

political rivalry with the family of the appellants. The candidate

from the appellants' family was defeating the candidate coming

from the prosecution family in Sarpanch election since last several

years and the prosecution was keeping a grudge against the

appellants that is why the false implication is there. Learned

counsel contends that it is consistent defense of the appellants

that murder of Bablu was committed somewhere else and the

(4 of 11) [CRLA-1174/2017]

dead body was brought on the alleged place of incident to falsely

implicate the appellants as there was political rivalry with the

prosecutors and several criminal cases were going between the

parties since long. Learned counsel submits that this is the reason

for not instituting the FIR till post-mortem and cremation of the

dead body though the police was already there at the place of

incident since the time of recovery of dead body till its post-

mortem examination. Learned counsel submits that no blood

stained soil was seized by the police on the date of incident,

evidently, for the reason that no blood was found on the place

where dead body was kept and only a fictitious seizure was said to

be effected on the day following the incident. Likewise, the police

has not recorded statement of the witnesses of the vicinity rather

those witnesses appeared as defense witnesses and stated that no

such incident had taken place there.

Learned counsel contends that there are several

contradictions and conflicts in the testimony of these witnesses

which creates serious doubt on their trustworthiness and presence

at the P.O.

Learned counsel contends that the FIR was lodged only after

cremation of the dead body and after due deliberation. Therefore,

the prosecution case cannot be accepted as presented by the

prosecution witnesses.

7. Learned Government Advocate for the State contends that

the eye-witnesses are wholly reliable and have consistently

supported the prosecution case. They are natural witnesses of the

incident as they were sitting in front of their house therefore, their

testimony cannot be discarded only for the reason that they

(5 of 11) [CRLA-1174/2017]

belong to the same family. Minor discrepancies in the prosecution

evidence would not make the otherwise acceptable evidence of

eye-witnesses as unreliable.

Learned counsel contends that the medical evidence

corroborates the ocular testimony of prosecution witnesses.

8. The law is well settled that plurality of witness is not the

requirement to record conviction. Even a single eye-witness, who

is wholly reliable, would be enough to record a conviction.

Likewise, merely for the witnesses being relatives would not make

their testimony unworthy of credence rather evidence of such

witnesses requires scrutiny with greater care and caution. If the

Court does not find such witnesses wholly reliable, the Court may

seek for corroboration.

9. Now the questions posed before us are whether the eye-

witnesses produced in the case are wholly reliable or the attending

circumstances create doubt on their trustworthiness specially

about their presence at the time of incident?

Whether the infirmities in the prosecution evidence raised go

to the root of the prosecution case. Since enmity cuts both ways

the question would be whether a case of murder due to enmity is

made out or a case of false implication due to enmity is probable?

10. The eye-witnesses of the case referred above have

supported the prosecution allegations disclosed in the FIR.

However, the record reveals that the incident took place at 07:30

A.M. on 12.12.2014. The inquest report was prepared at 10:00

A.M. On the same day, the post-mortem examination was done at

10:20 A.M. Thereafter, FIR was registered at 13:15 hours after

cremation of the dead body. It is evident from the prosecution

(6 of 11) [CRLA-1174/2017]

evidence that the police had reached at the place of incident and

took the injured to the hospital where the injured died and inquest

report was prepared. Krishan Singh, the informant of the case has

specifically admitted that after post-mortem, the police had

handed over the dead body at 11:00 A.M. The witnesses have

admitted that in fact no case was instituted till then. The

witnesses have further admitted that the case was lodged with the

police only after cremation of the dead body. PW.1 further stated

that his brother Komal Singh had written the first report submitted

to the police. However, PW.8 Komal Singh has not stated anything

like that.

PW.10 Mohar Singh is nephew of the informant. This witness

has deposed that after cremation of the dead body, all the family

members sat together to decide about the institution of the FIR.

PW.11. Ajay Singh Meena, the Investigating Officer of the

case has also admitted that no FIR was lodged till cremation of the

dead body. Other eye-witnesses deposed that through they were

present at the place of occurrence all along with the police but

they did not disclose the names of the assailants to the police.

11. The aforesaid evidence clearly indicates that the delayed FIR

was for the reason that all the family members of the prosecution

side sat together to discuss about the institution of FIR. In the

circumstance, the chances of false implication after deliberation

cannot be completely ruled out specially considering the old and

continuing enmities between the parties.

12. DW.2 Ramakant son of Nathilal is resident of the nearby

place of incident. This witness has deposed that in the morning,

no such incident as alleged by the prosecution had taken place

(7 of 11) [CRLA-1174/2017]

rather, at about 07:00 A.M. on a tractor, dead body of Bablu was

brought there and was kept near his shop. The informant Krishna

and Komal Singh, the family members of Bablu made alarm that

Bablu had been murdered but no incident had taken place

including of firing there. The witness specifically stated that he

had made statement to the police but the police did not record it.

DW.3 Dansingh and DW.4 Manoj have deposed that on 12.12.2014

at about 06:15 A.M., they were going to field side to attend the

call of nature. They saw that Bablu was lying unconscious in

between the house of Mohanlal Kathera and Ramesh Thakur. The

witnesses went to the house of the informant and reported about

the fact that Bablu is lying there. The informant came and carried

Bablu on a tractor and put the dead body near the shop of Nathi

Lal (DW.2 is son). These witnesses have also specifically stated

that no such incident of firing had taken place at Abdulpur

Chauraha, which is the place of incident according to the

prosecution.

13. PW.3 Nawal Singh, specifically admitted that no blood was

there where the dead body of Bablu was lying. Identical is the

statement of DW.4 Manoj. Non-seizure of blood smeared soil from

the spot, on the date of incident, by the police though police was

there, fortifies the claim of the defense witnesses who are not

hostile to the prosecution that in fact, the incident did not take

place as alleged by the prosecution. These materials add to the

doubt on the prosecution case as stated above.

14. The police claims to have seized three fire Arms. One was a

12 bore katta produced by appellant Rameshwar to the police vide

exhibit-P21, another was 315 bore gun produced by appellant

(8 of 11) [CRLA-1174/2017]

Bhagwati vide exhibit-P20 and third was a katta of 315 bore

produced by appellant Dhani Ram to the police. All the seizure

lists are signed by police constables as witnesses and not by

independent and respectable inhabitants of the locality as required

under Section 100 (4) of Cr.P.C.

Sub Section 100(4) of Cr.P.C. says that if no such inhabitants

of the said locality are available or are willing to be witness to the

search, the authority may issue an order in writing to them or any

of them to do so.

15. There is no evidence that no independent witnesses of the

locality were available or were not ready to witness the seizure.

16. In Pradeep Narayan Madgaonkar and Others vs. State

of Maharashtra reported in (1995) 4 SCC 255, the Hon'ble

Supreme Court said that the police did not make any serious

attempt to join independent and respectable inhabitants, the

Panch witnesses are not reliable.

17. In the case on hand, none of the Panch witnesses of the

seizure appeared before the Court.

18. PW.9 Prem Singh had examined the effectiveness of seized

fire Arms and submitted his report at exhibit-P11. The witness has

admitted that he had not recorded whether "breaching part" of the

fire Arms was functional or not. If the "breaching part" is not in

order, the fire Arms would not fire. The witness further stated that

he had not fired any of the fire Arms to ascertain its effectiveness.

The fire Arms produced before him were not containing any

identification mark, nor those fire Arms were there before him

while he was deposing before the Court.

(9 of 11) [CRLA-1174/2017]

19. Thus the seizure of the fire Arms said to be used in the crime

as well as its effectiveness are not proved by the prosecution

beyond doubt. This one is very serious lapse on the part of the

prosecution to prove the charge of guilt beyond all reasonable

doubt.

20. According to PW.1 only he had accompanied injured Bablu to

the hospital along with the police, whereas according to (PW.3),

Vivek (PW.6), Deshraj (PW.2) and Devendra Singh (PW.4) had

gone to the hospital along with injured Bablu.

PW.2 and PW.4 had not stated that they had gone along with

Bablu to the hospital. PW.6 is specific that he could not remember

who had accompanied when PW.6 was going along with Bablu to

the hospital. PW.7 deposed that at the time of incident, Devendra

Singh (PW.4) and Deshraj (PW.2) were not at the house. Devendra

Singh was living at Gwalior. Both had come after two hours of the

incident. The aforesaid contradictory statements of the eye-

witnesses creates doubt on their presence at the place and time of

incident.

PW.8, who is full brother of the deceased has deposed that

he saw that Bablu received fire Arm injury, fell down and died at

the spot. This statement contradicts the entire prosecution case

that Bablu died on way to the hospital and Panchnama was

prepared at the hospital.

21. Though the plea of alibi is very weak defense specially when

based on oral testimony; DW.1 has deposed that on the date and

the time of incident, appellant Bhagwati had gone to village

Nagladulhekhan to see the progress of soiling of road under

Narega Scheme. It does not appear that the witness had any

(10 of 11) [CRLA-1174/2017]

motive to give any false statement like aforesaid. The evidence of

DW.1 assumes importance due to lack of credibility of the eye-

witnesses of the case, coupled with delayed FIR which was lodged

after due deliberation as referred above.

22. To sum up, (a) though several eye-witnesses of the incident

claim to be present at the time of arrival of the police at the place

of incident, none disclosed the name of the assailants or manner

of incident to the police till before written information to the police

by the first informant, which was done only after due deliberation

and cremation of the dead body. The aforesaid infirmity creates

serious doubt on the trustworthiness of the prosecution case.

(b) Eye-witnesses are not wholly reliable due to serious

contradictions in their testimony on material particulars as

discussed above.

(c) Three used cartridges of 315 bore gun were recovered from

the place of incident by the police and allegations of firing of single

shot from that gun is against appellant Bhagwati. The conflict is

not explained, hence it is doubtful whether eye-witnesses had

seen the occurrence.

(d) The prosecution failed to prove and establish that the seized

fire Arms were used in the occurrence and the fire Arms were

active to be used.

(e) The defense evidence probabilizes a case of murder in some

other incident not witnessed by anyone that is why blood stained

soil etc. were not seized on the date of incident itself though the

police team was there at the place of incident for the whole day.

23. Learned trial Judge has not considered the aforesaid

infirmities in the prosecution case, therefore, in our view, due to

(11 of 11) [CRLA-1174/2017]

infirmities aforesaid, the prosecution case appears to be doubtful

and the benefit whereof must go to the appellants.

24. In the result, the impugned judgments and orders of

sentence are hereby set aside and the appeals are allowed. The

appellants are acquitted of the charges levelled against them. Let

the appellants who are in custody be released at once in this case.

Appellant Pappu @ Ramsewak in criminal appeal No. 1174/2017

is on bail. Bail bonds earlier furnished by appellant Pappu @

Ramsewak in criminal appeal No. 1174/2017 be treated cancelled.

25. Appellants are directed to furnish a personal bond of Rs.

50,000/- each and a surety bond in the like amount in accordance

with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial)

within two weeks from the date of release to the effect that in the

event of filing of Special Leave Petition against this judgment or

on grant of leave, the appellants on receipt of notice thereof, shall

appear before the Hon'ble Apex Court. The bail bond will be

effective for a period of six months. Let the appellants be released

once in this case

(BIRENDRA KUMAR),J (PANKAJ BHANDARI),J

Ashwani/-54-55

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