Rajasthan High Court
Kripal Singh vs State (2024:Rj-Jp:10907-Db) on 23 February, 2024
Bench: Pankaj Bhandari, Bhuwan Goyal
[2024:RJ-JP:10907-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 375/2000
1. Dashrath Singh son of Shri Mal Singh, resident of Baraniya,
police Station Fatehpur, District Sikar.
2. Mahavir Singh son of Shri Narain Singh, resident of Chandoli,
P.S. Gachhipura, District Nagaur.
Both at present confined to Central Jail, Jaipur.
----Appellants
Versus
State of Rajasthan through P.P.
----Respondent
Connected With
D.B. Criminal Appeal No. 331/2004
Kripal Singh son of Jagdish Singh, resident of Village Khudi,
Police Station Laxmangarh, District Sikar, Rajasthan.(Presently
he is behind the bars in Central-Jail, Jaipur)
----Appellant
Versus
The State of Rajasthan through Public Prosecutor.
----Respondent
For Appellant(s) : Mr. V.R. Bajwa, Sr. Adv. assisted by
Ms. Savita Nathawat &
Mr. Rajendra Singh Rajawat, (for
Accused-Dashrath Singh) in CRLA
: Mr. Pankaj Gupta with
Mr. Naman Yadav, (for accused-
Mahaveer), in CRLA No.375/2000
: Mr. V.R. Bajwa, Sr. Adv. assisted by
Ms. Savita Nathawat, (for accused-
Kirpal Singh), in CRLA No.331/2004
For State : Mr. Javed Choudhary, Addl. G.A.
For Complainant(s) : Mr. Poonam Chand Bhandari with
Mr. Abhinav Bhandari,
Mr. Rakesh Chandel,
Ms. Pratibha Baresa,
Mr. Krishna Singh Jadoun &
Mr. Dinesh Pareek
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
[2024:RJ-JP:10907-DB] (2 of 28) [CRLA-375/2000]
Judgment
RESERVED ON :: 25/01/2024
PRONOUNCED ON :: 23/02/2024
(Per Hon'ble Pankaj Bhandari,J)
REPORTABLE
1. Present D.B. Criminal Appeal No.375/2000 titled as Dashrath
Singh & Anr. Versus State of Rajasthan has come up before this
Court for hearing in pursuance of the remand order dated
03.08.2011 passed by the Apex Court in Criminal Appeal No.352
of 2008 & remand order dated 23.01.2012 passed by the Apex
Court in Crimial Appeal No.1550 of 2009 whereby the Apex Court
has allowed the appeals filed by Dashrath Singh and Mahavir
Singh and has set aside the order of the Division Bench of the
Rajasthan High Court dated 18.07.2006 and has remanded the
case back to this Court for re-decision qua the appellants herein.
The appeal was filed by the appellants - Dashrath Singh and
Mahavir Singh aggreived by the judgment and sentence dated
18.05.2000 passed by the learned Judge, Special Court, Jaipur in
Sessions Case No.01/1998, whereby appellant-Dashrath Singh
was convicted for offence under Section 148 IPC and Section 302
and 302/149 IPC. For offence under Section 148 IPC, he has been
sentenced for two years rigorous imprisonment and for offence
under Section 302 and 302/149 IPC, he has been sentenced for
life imprisonment and a fine of Rs.3,000/-, in default of payment
of fine, to further undergo three months rigorous imprisonment.
Appellant-Mahavir Singh was convicted for offence under Section
147 IPC and Section 302/149 IPC. For offence under Section 147
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IPC, he has been sentenced for one year rigorous imprisonment
and for offence under Section 302/149 IPC, he has been
sentenced for life imprisonment and a fine of Rs.3,000/-, in
default of payment of fine, to further undergo three months
rigorous imprisonment.
2. D.B. Criminal Appeal No.331/2004 titled as Kripal Singh
Versus State of Rajasthan has been filed by appellant - Kripal
Singh aggreived by the judgment and sentence dated 28.01.2004
passed by the Additional Sessions Judge (Fast Track) No.1, Jaipur
City, Jaipur in Sessions Case No.127/2001 whereby appellant -
Kripal Singh has been convicted for offence under Section
302/120-B of IPC and sentenced to rigorous life imprisonment and
a fine of Rs.2,000/-, in default of payment of fine, to further
undergo six months imprisonment.
3. Succinctly stated the facts of the case are that on
29.12.1997 complainant - Raju Nayak submitted a written report
at Police Station Jhotwara wherein he has stated that today at
08:15 AM Rajendra Grover came to his home by motor-cycle and
they were discussing about the cricket match. In the meantime, a
cream coloured jeep came from Adarsh Vidya Mandir side and hit
the motor-cycle, due to which, complainant and Rajendra Grover
fell down. They immediately ran away from there, but Dilip Singh,
Dashrath Singh, Mahavir and Sunil Bihari and 5-6 other persons
came out from the jeep. They were carrying weapons like lathi,
sword, pharsi and pistol and they ran after Rajendra and started
beating Rajendra Grover. On the said report, FIR bearing
No.563/1997 was lodged for offences under Sections 147, 148,
[2024:RJ-JP:10907-DB] (4 of 28) [CRLA-375/2000]
149, 307, 324, 323 and 341 of IPC and investigation was initiated.
During investigation, Rajendra Grover died at the hospital.
4. The police after completion of the investigation has filed
challan against accused - Dilip Singh, Dashrath Singh, Mahavir
Singh, Sudepal Singh, Dewan Singh, Khem Singh, Ravindra Singh,
Rajveer Singh, Damodar, Kripal Singh and Santu Sharma. Trial
Court framed charges against 10 accused persons. Accused denied
the charges and claimed trial. Out of the 10 accused persons, one
Santu Sharma, against whom challan has been filed under the
provisions of Section 299 Cr.P.C. for offence under Sections 147,
148, 149, 302/34 and 120-B of IPC, was acquitted by giving
benefit of doubt and the other nine accused were convicted by the
learned Trial Court.
5. D.B. Criminal Appeal was preferred by nine accused persons.
Division Bench of the High Court acquitted six accused - Khem
Singh, Sudepal, Diwan Singh, Rajveer Singh, Ravindra Singh and
Damodar Singh and convicted 3 accused namely; Dilip Singh,
Dashrath Singh and Mahavir Singh. The conviction order was then
challenged by Dilip Singh and the acquittal order was challenged
by complainant side. Supreme Court dismissed both the SLPs; one
filed by Dilip Singh and the other SLP filed by complainant, as a
consequence of which, conviction of accused - Dilip Singh was
upheld and acquittal of Khem Singh, Sudepal Singh, Diwan Singh,
Rajveer Singh, Ravindra Singh and Damodar was upheld vide
judgment/order dated 05.02.2007. In the SLP preferred by
accused - Dashrath Singh, the Apex Court vide order dated
03.08.2011 has set aside the order dated 18.07.2006 and has
[2024:RJ-JP:10907-DB] (5 of 28) [CRLA-375/2000]
remanded the case for hearing the appellant afresh. In the SLP
preferred by accused - Mahavir Singh, the Apex Court vide order
dated 23.01.2012 has disposed of the appeal in terms of the order
dated 03.08.2011 and has remanded the case back to this Court
for deciding the matter afresh after affording opportunity of
hearing to the appellant.
6. D.B Criminal Appeal No.375/2000 now survives only qua
accused- Dashrath Singh and Mahavir Singh. Learned Trial Court
vide its judgment dated 18.05.2000 has convicted and sentenced
the accused-appellants - Dashrath Singh & Mahavir Singh as
mentioned above.
7. D.B. Criminal Appeal No.331/2004 has been preferred by
appellant - Kripal Singh against the judgment of conviction and
order of sentence dated 28.01.2004, whereby he has been
convicted and sentenced for offence under Section 302 read with
Section 120-B of IPC.
8. It is contended by learned counsel for the appellants-
Dashrath Singh and Mahavir Singh that an FIR is said to have
been lodged at 10:00 AM on 29.12.1997. The same was not
forwarded to the Magistrate within 24 hours and was sent after a
delay of 5 days to the Magistrate. Thus, the FIR itself comes under
a cloud of doubt. It is also contended that Raju Nayak (PW-2),
who is a star witness of the prosecution, is not a reliable witness
as immediately after the incident, when the police reached the
spot neither he informed the police about the incident nor
travelled with the police in the jeep in sending the deceased to the
hospital. It is also contended that as per prosecution story, clothes
[2024:RJ-JP:10907-DB] (6 of 28) [CRLA-375/2000]
of Raju Nayak soaked blood due to incident, however, there was
no seizure memo of his blood stained clothes. It is further
contended that the dying declaration (Exhibit-P/1) recorded
enroute the hospital in a running jeep, is a doubtful document for
the very reason that if it was recorded enroute, there would have
been jerks while writing the dying declaration. It is also contended
that there is no signature of the deceased on the dying declaration
(Exhibit-P/1) and that as per the prosecution case, the absence of
signature of the deceased was due to injury on both his hands,
however, there is nothing on the post mortem report (Exhibit-
P/50) of the deceased to show that his fingers or thumbs were
injured so as to unable him to make a thumb impression. It is
further contended that the above dying declaration has also been
disbelieved by this High Court in its earlier judgment.
9. It is contended that as per the prosecution case, deceased
went to Raju Nayak's place and when he was sitting on the motor-
cycle, a cream colour jeep came and hit the motor-cycle, on which
both Raju Nayak and deceased fell down. Deceased ran from that
place and Raju Nayak also ran in the opposite direction from the
place of incident. It is also contended that there is no possibility of
the deceased noting the jeep number when the jeep came all of a
sudden and hit the motor-cycle from the back and also because,
as per the dying declaration, he immediately ran away from the
place. It is further contended that the colour of the jeep
mentioned in the report and that which has been seized are
different, which also raises suspicious about version of deceased.
[2024:RJ-JP:10907-DB] (7 of 28) [CRLA-375/2000]
10. It is further contended that Shankar (PW-1) is a chance
witness and his statement is also not reliable for the very reason
that if he would have carried the deceased in the jeep, then his
clothes ought to be blood soaked, but there is no recovery of his
blood soaked clothes.
11. It is contended that the deceased was never in his senses
and immediately after the incident, he was rushed to the hospital,
but there is no entry record of his reaching the hospital; the
treatment that was given to him; no bed head ticket has been
produced nor any doctor has been examined to establish that he
was conscious and in a fit position to give statement. It is also
contended that out of 10 persons, who were tried, 1 was acquitted
by the trial Court, 6 have been acquitted by the Division Bench of
this Court and their acquittal has been upheld by the Supreme
Court. Thus, the entire story of the prosecution is false.
12. It is contended that a crescent shaped axe was recovered
from Dashrath Singh, whereas, doctors have given statements
that the injuries caused to the deceased could not have been
caused by crescent shaped axe as the injuries sustained by the
deceased are not crescent shaped. It is also contended that an
iron pipe is said to have been recovered from Mahavir, but as per
the FSL report (Exhibit-P/75), no blood was detected on the same.
It is also contended that 1 empty cartridge and 1 live cartridge of
12 bore gun were recovered from the site. There is no
investigation as to from where the live and empty cartridges came
at the place of occurrence. It is further contended that neither the
malkhana register has been produced nor Malkhana Incharge has
[2024:RJ-JP:10907-DB] (8 of 28) [CRLA-375/2000]
been examined to establish deposit of the seized articles at the
malkhana.
13. Per Contra, with regard to appellants - Dashrath Singh and
Mahavir Singh, it is contended by counsel for the complainant that
the FIR was lodged without delay and names of accused
appellants - Dashrath Singh and Mahavir Singh are appearing in
the FIR. It is also contended that the accused appellants -
Dashrath Singh and Mahavir Singh were arrested on the same
day. There are witnesses, who have deposed against the
appellants. It is contended by learned Counsel for the complainant
that since the conviction of three of the accused was upheld by
this Court and SLP preferred by Dilip Singh was dismissed by the
Supreme Court, in terms of the dismissal of the SLP by the
Supreme Court, the same fate should be of the appeals preferred
by Dashrath Singh and Mahaveer Singh. Per Contra, learned
Counsel for the appellants contended that the said SLP was
dismissed in limine and the judgment cannot be said to be on
merits.
14. It is contended by learned counsel for accused-appellant-
Kripal Singh that the informer of the police and the person, who
talked with Kripal Singh from telephone of S.P. North, were not
produced before the Court. It is further contended that no call
recording has been produced to establish the telephonic
communication and the telephonic communication is said to have
taken place when the phone was not on speaker. It is also
contended that there is no evidence to the effect that the phone
was being used by appellant - Kripal Singh at the time when the
[2024:RJ-JP:10907-DB] (9 of 28) [CRLA-375/2000]
communication is said to have taken place. The fact that the
accused were arrested from Dudu is also not established as no
arrest memo was prepared at Dudu. The person, who posed as
Dashrath Singh, has not been produced in evidence. The S.P.
North has not been produced to establish that he gave his mobile
for contacting with Kripal Singh. It is also contended that there is
no evidence with regard to conspiracy between the parties. It is
further contended that since no element of conspiracy has been
established, there is no meeting of mind prior to the alleged
incident. It is contended that it is hard to believe that someone
could pose himself as Dashrath Singh and talk to the appellant -
Kripal Singh. Even if, it is believed that he talked with Kripal
Singh, that would not lead to the conclusion that Kripal Singh was
the main accused and that he planned the incident.
15. Per Contra, learned counsel appearing for the complainant
contends that Kripal Singh was the mastermind. He had planned
the incident and a telephonic communication took place between
the informer and Kripal Singh, wherein Kripal Singh informed the
informer that work has been accomplished and that all the other
accused are waiting at Dudu and that he should also reach Bannaji
mid-way at Dudu.
16. We have considered the contentions of learned counsel for
the parties and have carefully scanned through the evidence and
the judgments cited before us.
17. D.B. Criminal Appeal No.375/2000 titled as Dashrath Singh &
Anr. Versus State of Rajasthan has very peculiar facts and
circumstances. As many as ten accused persons were made
[2024:RJ-JP:10907-DB] (10 of 28) [CRLA-375/2000]
accused in trial, out of which, one accused was acquitted and nine
accused were convicted by learned Trial Court. In the appeal
preferred before this Court by the nine convicts, six accused were
acquitted and three accused were convicted. The acquittal of six
accused was challenged before the Apex Court by the complainant
and one of the convict - Dilip Singh also filed SLP before the
Supreme Court. The Supreme Court vide order dated 05.02.2007
gave permission to file both the SLPs and the same were also
dismissed by the same order, which reads as under:-
"Permission to file the Special Leave Petition is
granted.
The Special Leave Petitions are dismissed."
18. The remaining two convicts whose appeal was dismissed by
this Court also preferred SLP before the Apex Court. Dashrath
Singh's Criminal Appeal No.352/2008 was decided by the Apex
Court on 03.08.2011, the operative portion of which reads as
under:-
"We accordingly allow the appeal set aside the
order of the Division Bench dated 18 th July, 2006 and
remand the case for re-decision qua the appellant
herein. We are also told that the appellant has been in
custody for about 8 years. We suspend his sentence
and direct that he be released on bail to the
satisfaction of the Trial Court pending the hearing of
the appeal.
We also request the High Court to dispose of the
appeal within six months from today.
The appellant is also directed to engage a
counsel of his choice within two months from the date
of the receipt of a copy of this order failing which, it
will be open to the High Court to appoint an amicus
curiae."
[2024:RJ-JP:10907-DB] (11 of 28) [CRLA-375/2000]
Mahavir Singh's Criminal Appeal No.1550/2009 was also
disposed off by the Apex Court on 23.01.2012 and the order was
passed in terms of the order passed in Dashrath Singh's case.
19. The Apex Court in Shivappa Etc. Etc. versus The Chief
Engineer & Ors.: 2023 LiveLaw (SC) 312 has held that dismissal
of the special leave petition in limine does not amount to
affirmation of the view taken by the High Court. Unless the
judgment of the High Court is affirmed, at least, with short
reasoning, the same should not amount to binding precedent.
Thus, in light of the said judgment, we are of the considered view
that dismissal of the appeal preferred by Dilip Singh in limine
would not have any bearing on the present appeal of Dashrath
Singh and Mahavir Singh. Furthermore, there is a specific direction
of the Apex Court wherein the Apex Court has set aside the order
passed by the Division Bench of this Court and has remanded the
case for re-decision qua the appellants. It is pertinent to note here
that neither the complainant nor the appellants have filed any
review petition before the Hon'ble Supreme Court against the
remand order in spite of having knowledge of the fact that
conviction of one of the accused i.e., Dilip Singh was upheld by the
High Court, we, therefore, deem it proper to decide the present
appeals on the facts and merits of the case.
20. Now, before entering into the merits of the case, it will be
appropriate to first refer to the judgments on which reliance has
been placed upon by the counsel for the parties. With regard to
delay in sending the report to the Magistrate, counsel for the
appellant has placed reliance on Pappu @ Ramlal Versus State of
[2024:RJ-JP:10907-DB] (12 of 28) [CRLA-375/2000]
Rajasthan: (2017) 2 RLW 1466, Mushtaq & Ors. Versus State of
Rajasthan: 2015 SCC OnLine Raj 10215, Umar s/o Kamal Khan
Versus State of Rajasthan: (2014) 4 RLW 3685, Jang Singh &
Ors. Versus State of Rajasthan: (2001) 9 SCC 704 and Chotkau
Versus State of U.P.: (2023) 6 SCC 742. It is argued by counsel
for the appellant that the basic purpose behind Section 157 of
Cr.P.C. was to ensure that nothing new creeps in after institution
of first information report, therefore, it was provided that the first
information report should be sent to the Magistrate immediately.
21. On unnatural conduct of witness, reliance has been placed by
counsel for the appellant on Lahu Kamlakar Patil & Anr. Versus
State of Maharashtra: JT 2012 (12) SC 607, Kanakarajan @
Kanakan Versus State of Kerela: JT 2017 (4) SC 407, B.
Virupakshaiah Versus State of Karnataka & Ors.: JT 2016 (2) SC
239, State of Uttar Pradesh Versus Om Pal & Ors.: JT 2018 (6)
SC 97 and Bhaskarrao & Ors. Versus State of Maharashtra: JT
2018 (6) SC 153. Reliance is also placed on Jitendra Kumar
Mishra @ Jittu Versus The State of Madhya Pradesh: Criminal
Appeal No. 1348 of 2011 with Criminal Appeal No. 1347 of
2011 decided by the Apex Court on 05.01.2024 wherein it was
observed that a relative of the deceased cannot be considered to
be free and independent witness and there is every likelihood that
he is an interested witness. If such person is having criminal
background, conviction cannot be based on his sole testimony. The
Apex Court also observed that the Appellate court should not shy
away in giving benefit of doubt to accused persons.
[2024:RJ-JP:10907-DB] (13 of 28) [CRLA-375/2000]
22. As far as facts of the case are concerned, prosecution case
rests mainly on the parchabayan of the deceased, which is said to
be his dying declaration (Exhibit-P/1) and on the statements of
Raju Nayak (PW-2), Pankaj Sharma (PW-7) & Shankar (PW-1),
and statements of Surendra Grover (PW-5) and Mahendra Kumar
Grover (PW-6), brothers of the deceased, who have stated that
the deceased had made an oral dying declaration in their
presence.
23. As far as dying declaration (Exhibit-P/1) of the deceased is
concerned, the same is said to have been recorded while the
deceased was being transported in a jeep from the place of
occurrence to the SMS Hospital. In the said dying declaration,
Jeep No.RJ-14-2C-1919 and a cream coloured jeep are mentioned.
As per Shankar (PW-1) and Bhim Singh (PW-14), when the
deceased was being shifted from the place of occurrence to the
hospital, on way, he gave his dying declaration. After reaching the
hospital, as the deceased was not in a position to sign on the
statement, signature of Shankar (PW-1) was obtained on the
dying declaration (Exhibit-P/1). Shankar (PW-1) in his statement
has deposed that when he went to collect prasad in the morning,
he saw that there was crowd gathering at a place and when he
reached there, he found a person lying in injured condition. After
sometime, the police came and one of the policemen called him to
lift the injured. He along with 2-4 persons lifted the injured and
placed him in the police jeep. He has further deposed that the
Police Personnel asked him to sit in the jeep. After sometime, one
of the policemen asked the injured his name and what happened
[2024:RJ-JP:10907-DB] (14 of 28) [CRLA-375/2000]
to him, on which, the injured person told his name as Rajendra
Grover and stated that he had gone to the house of Raju Nayak at
8:15 AM in connection with some cricket match. The injured
person also stated that a cream coloured jeep accidented him,
upon which, he fell down and then he started to run. Dilip Singh,
Mahavir Singh, Khem Singh, Diwan Singh, Dashrath Singh and
other persons also ran after him and attacked him with sword,
pharsa, rods, sticks etc.
24. Shankar (PW-1) has further stated that one Police Personnel
was recording the statement of the injured in the jeep. This
witness has also stated that the persons who placed the injured in
the jeep included one Police Personnel and Raju Nayak. As per this
witness, the statement was recorded in a running jeep enroute the
hospital and he signed after reaching the SMS Hospital. He has
denied giving statement to the Police on 29.12.1997 and has
specifically stated that Exhibit-D/1 - statement under Section 161
Cr.P.C. was recorded when the vehicle was seized. On perusal of
the seizure memo of the jeep (Exhibit-P/39), the time of seizure
mentioned in the seizure memo is 7:30 PM on 30.12.1997. As per
Shankar (PW-1), the Police asked the injured his name, to which,
he replied that his name was Rajendra Grover and that he has
gone to the house of Raju Nayak at 8:15 AM. This witness has not
stated that the Police Personnel had asked the father's name, age
and address of the injured whereas in the dying declaration
(Exhibit-P/1), father's name, age and address of the injured are
also mentioned. Bhim Singh (PW-14), Sub-Inspector, has also not
stated that he asked the father's name, age and address of the
[2024:RJ-JP:10907-DB] (15 of 28) [CRLA-375/2000]
injured. Yet another thing, which is important to note is that there
are no signatures on the first page of dying declaration (Exhibit-
P/1), either of Shankar (PW-1) or of Bhim Singh (PW-14). That
the deceased gave statement enroute the hospital is not
believable for the very reason that number of the jeep is
mentioned and it is also mentioned that it was a cream coloured
jeep whereas the jeep, that has been recovered, is a gray
coloured jeep. As per the case of the prosecution, a jeep banged
the motor-cycle from the backside and the deceased fell down and
started running at the same time. There was no time for him to
remember the registration number of the jeep. Shankar (PW-1)
has also not stated that the deceased, while his statement was
being recorded in the running jeep, narrated the registration
number of the jeep. Furthermore, there is no signature of the
deceased on the dying declaration and as per the prosecution
story the same could not be taken as both hands of the deceased
were injured, however, as per the post mortem report (Exhibt-
P/50), there is no injury on the fingers or thumb of the deceased
so as to unable him to give a thumb impression. Thus, recording
of dying declaration enroute hospital is not established beyond
reasonable doubt.
25. Surendra Grover (PW-5) and Mahendra Kumar Grover (PW-
6) are brothers of the deceased, who have deposed that the
deceased while in the hospital narrated the incident to them. In
this regard, if we peruse the statement of Surendra Grover (PW-
5), he has mentioned that when Rajendra Grover was being
shifted to the ward, then on way, Mahendra Kumar Grover (PW-6)
[2024:RJ-JP:10907-DB] (16 of 28) [CRLA-375/2000]
asked him as to what happened, to which, Rajendra Grover replied
that the persons, who gave beating to him in Brahampuri, the
same persons came in a jeep and have beaten him due to enmity.
He has also deposed that Rajendra named 7-8 persons, namely;
Dilip Singh, Dashrath Singh, Khem Singh, Mahavir Singh, Sudepal
Singh, Diwan Singh, Ravindra Singh and 3-4 other persons. He
also gave statement that Dilip Singh was having sword, Dashrath
Singh was having a pharsi and others were having sticks, pipes
and iron rods. He also stated that these persons came in a jeep
and accidented his motor-cycle, upon which, he fell down and
started running, thereafter all the persons, who alighted from the
jeep, ran after him, caught him and mercilessly gave beating to
him. Surendra Grover (PW-5) has deposed that when Rajendra
was telling the story to Mahendra Kumar Grover (PW-6), he also
heard him. In the cross-examination, this witness has stated that
Rajendra was shifted to the north wing ward and when he was
being shifted, there was no Police Personnel or hospital staff with
them and there was a drip bottle, which was held by Mahendra
and he was pushing the trolley. He has also stated that what
Rajendra narrated, the same was not noted down.
26. Mahendra Kumar Grover (PW-6) has stated that when he
reached the hospital, on his asking, Rajendra narrated the incident
and informed the names of the persons, who had attacked him. In
the cross-examination, he has admitted that Rajendra was carried
on a stretcher to the ward. He has also stated that he was holding
a glucose bottle in one hand and from his other hand, he was
holding the stretcher and his brother - Surendra Grover was trying
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to push the stretcher from back. He has clearly stated that there
was no hospital staff, doctor or Police Personnel at the time when
the deceased was being shifted to the ward. This witness has
narrated the oral dying declaration as narrated by the deceased to
him and has stated that the deceased informed the names of the
assailants as Dilip Singh, Khem Singh, Dashrath Singh, Mahavir
Singh, Sudepal Singh, Rajveer Singh, Ravindra Singh, Diwan
Singh and two other persons, whose names, he was not knowing;
that they came in a cream coloured jeep bearing Registration
No.RJ-14-2C-1919; that he was sitting on a motor-cycle when the
jeep hit the motor-cycle, thereafter he ran and the accused ran
after him, caught him and gave beating to him and; that Dilip
Singh was having a sword, Dashrath Singh was having a pharsa
and others were having sticks, pipes and iron rods.
27. The oral dying declaration made before these two brothers
cannot be believed for the very reason that there is no evidence of
any doctor with regard to the condition of the deceased at the
time when he was admitted in the hospital. No bed head ticket or
admission ticket has been produced before the Court to establish
that the victim was conscious and was in a fit position to give
statement. As per both Surendra Grover (PW-5) and Mahendra
Kumar Grover (PW-6), who are brothers of the deceased, they
were pushing the stretcher through a ramp towards the ward,
when one of the brother, who was carrying the glucose bottle,
asked the injured about the incident and at that time, he narrated
the incident including the registration number of the jeep. Both
these witnesses have stated that no staff, doctor or Police
[2024:RJ-JP:10907-DB] (18 of 28) [CRLA-375/2000]
Personnel were with them when they were shifting the injured to
the General Ward. It is also not believable that an injured, who
was admitted in hospital by Police, will be shifted in the absence of
police or doctor.
28. The entire story of the prosecution appears to be a made up
story for the very reason that at the time when the injured is said
to be sitting on the motor-cycle, a jeep came and hit the motor-
cycle, upon which, the injured fell down on one side and started
running. At the relevant time, his noting the number of the jeep
and then remembering it after having sustained 27 injuries cannot
be believed, as he has stated in the dying declaration that as soon
as he fell down, he started running as many persons were
alighting from the jeep and were running towards him. Surendra
Grover (PW-5) has also not mentioned that the deceased uttered
the registration number. Mahendra Kumar Grover (PW-6) was not
recording what was being stated by the deceased. Thus, it cannot
be believed that at such a moment when one is fighting for his
life, he could remember the registration number of the jeep. At
the same time, it cannot be believed that injured would remember
the registration number of the jeep and could narrate the same to
his brother. Since there is no medical record of the hospital
produced before the Court below to establish that the injured was
conscious and in a fit condition to record his statement, the oral
dying declaration made to Surendra Grover (PW-5) and Mahendra
Kumar Grover (PW-6) cannot be believed and cannot be thus
made a ground for convicting the accused appellants. Learned
Court below has clearly erred in placing reliance on the oral dying
[2024:RJ-JP:10907-DB] (19 of 28) [CRLA-375/2000]
declaration made by the deceased to Surendra Grover (PW-5) and
Mahendra Kumar Grover (PW-6).
29. It is pertinent to note at this stage that the deceased was
having many cases of murder registered against him. Mahendra
Kumar Grover (PW-6) has denied that the deceased was having
seven cases of murder registered against him and has stated that
as per his information, four cases of murder were registered
against him. Other than this, statements of Surendra Grover (PW-
5) and Mahendra Kumar Grover (PW-6), who are brothers of the
deceased, are even otherwise not reliable for the very reason that
one, they are related to him and second, they are having criminal
antecedents and many cases of murder, extortion etc. have been
registered against them as has been admitted by them in their
cross-examination. Since the deceased, as admitted by Mahendra
Kumar Grover (PW-6), was having as many as four cases of
murder registered against him, both Surendra Grover (PW-5) and
Mahendra Kumar Grover (PW-6) also having many cases
registered against them, chances of Surendra Grover (PW-5) and
Mahendra Kumar Grover (PW-6) framing the accused-appellants
cannot be ruled out.
30. The document-dying declaration (Exhibit-P/1), which is
stated to have been recorded enroute the hospital in a running
jeep, does not bear any signature on the first page and on the
second page, there is signature of Shankar (PW-1) in hindi
language. On the same day, Shankar was also a witness to the
recovery of motor-cycle, wherein he has signed in English
language at place A to B. Shankar (PW-1) having signed on the
[2024:RJ-JP:10907-DB] (20 of 28) [CRLA-375/2000]
same day in both Hindi and English language, an attempt was
made on behalf of the prosecution to make him sign on all the
pages of his court statement in both languages. A bare perusal of
the signatures of Shankar (PW-1), one which is appearing in the
court statement and the other, appearing in the alleged dying
declaration of the deceased recorded enroute the hospital by the
police and on which, as per Shankar (PW-1), he signed after
reaching the hospital, there are marked difference and it is
apparent that the signatures appearing in dying declaration
(Exhibit-P/1) has no resemblance, as far as words 'ka' and 'ra' are
concerned. Even the word 'sha' is not tallying with the signatures
made in the court statement. Apparently, this witness has been
created by the prosecution in document (Exhibit-P/1). The dying
declaration (Exhibit-P/1) is further not reliable as the Police
Personnel, who has recorded the statement, did not make any
effort to obtain a certificate from the doctor with regard to the fit
condition of the deceased so as to give dying declaration. From
Rojnamcha (Exhibit-P/64) also, it is revealed that the statement of
the deceased was recorded during his treatment. As to what was
recorded during his treatment has not seen the light of the day. As
to why the prosecution has withheld the statement, which was
recorded during the treatment, is also not explained by the
prosecution and thus, it creates doubt with regard to the veracity
of dying declaration (Exhibit-P/1), which is said to have been
recorded enroute the hospital.
31. From perusal of Rojnamcha (Exhibit-P/69A) dated
29.12.1997, it appears that dying declaration was recorded while
[2024:RJ-JP:10907-DB] (21 of 28) [CRLA-375/2000]
the deceased was undergoing treatment. The language used in the
Rojnamcha (Exhibit-P/69A) reads as under:-
",l,e,l gkWLihVy igqap dj et:c dk bZykt djk;k] nkSjkus bZykt
C;ku utjh et:c fy;s o okMZ N.S.W.1 esa HkrhZ djok;k x;kA** "
As per Rojnamcha (Exhibit-P/69A), statement of the
deceased was recorded while he was undergoing treatment at the
hospital. The recording of the dying declaration in a running jeep,
thus appears to be a concocted story and cannot be relied upon by
the Court.
32. The other evidence against the appellants is of Raju Nayak
(PW-2), who has been produced before the Court as an eye-
witness. He has stated in his statement that on 29.12.1997 at
around 8:15 AM, Rajendra Grover came to his place on a motor-
cycle. The witness came out of the house, at that time, three
persons, namely, Virendra Sharma, Raju Sharma and Pankaj
Sharma came. As Rajendra was talking to this witness, he asked
Virendra, Raju and Pankaj to sit at the tea kiosk, thereafter all
these three persons left. After talking with deceased for sometime
about the cricket match, a cream coloured jeep came from the
side of Adarsh Mandir and hit the motor-cycle from the back.
Rajendra Grover, who was sitting on the motor-cycle, fell down on
the floor and this witness fell in his boundary inside the house.
This witness has deposed that when he turned and looked back,
from the jeep alighted Mahavir Singh @ Sunil Bihari, Dilip Singh,
Dashrath Singh and 5-6 other persons, who were carrying sword,
pharsa, pipe and iron rods. This witness has also deposed that
after seeing them, he jumped into the premises of his neighbour's
[2024:RJ-JP:10907-DB] (22 of 28) [CRLA-375/2000]
house Bhanwar Singh and Rajendra started running. He has
further deposed that all the persons, who alighted from the jeep,
ran towards the side on which Rajendra Grover had fled. It is
pertinent to note that this witness in his cross-examination has
admitted that from the place where the jeep collided with the
motorcycle, the place where the incident took place, is not visible.
He has also stated that the place from where he was hiding, the
place of occurrence was not visible.
33. As far as criminal background of Raju Nayak (PW-2) is
concerned, he has admitted that a case was registered against
him under Section 302 of IPC and that the case is pending since
1989. Statement of this witness was recorded in 1998. This
witness has stated that other than the murder case, there are two
other cases also registered against him. He has also admitted that
when the police vehicle came, he did not go to the Police to
narrate the incident. The conduct of this witness is unnatural for
the very reason that he himself is a criminal, facing charge for
offence under Section 302 of IPC and other than that, he has two
other cases registered against him. He has not informed the Police
about the incident at the time when the Police reached the place
of occurrence, which creates doubt on the veracity of this witness.
Furthermore, this witness is said to have fallen down after being
hit by the jeep, however, no injury has been sustained by him
which also creates doubt about the prosecution story. As per this
witness, Dilip Singh hit Rajendra Grover with a sword and
Dashrath Singh hit Rajendra with an axe. Thereafter, all the
persons gave beating to the deceased.
[2024:RJ-JP:10907-DB] (23 of 28) [CRLA-375/2000]
34. Dr. S.K. Pathak (PW-22) in his cross-examination has
admitted that injury No.1 and injury No.26 were not crescent
shaped, however, the axe, which has been recovered from
Dashrath Singh, is crescent shaped. Dr. H.L. Bairwa (PW-26) also
in his cross-examination has admitted that it is not mentioned in
the postmortem report that injury No.1 was sufficient to cause
death and in the same way, injury No.26 was also not reported to
be dangerous to life. This witness has also stated that the injuries
were not crescent shaped, however, the axe, which has been
recovered at the instance of Dashrath Singh, is crescent shaped.
The injury caused to the deceased also does not coincide with the
axe, which has been recovered at the instance of Dashrath Singh,
as it has come in evidence that the injuries were caused by a
crescent shaped axe. Furthermore, no blood group of the
deceased has been produced before the Court by the prosecution
in order to establish a match with the blood on axe recovered.
Thus, in entirety, Raju Nayak (PW-2), who himself happens to be a
person having criminal antecedents and having not narrated the
incident to the Police immediately after the incident when the
Police reached the spot, makes him an unreliable witness.
35. Pankaj Sharma (PW-7) is yet another witness, relying on
whose statement, learned Trial Court has convicted the accused
appellants. As far as the statement of this witness is concerned,
he was near the place of occurrence, at the time when the Police
came. He also did not inform the police about the incident. As per
this witness, he along with Raju Sharma and Virendra Sharma was
waiting at a betel shop near the house of Raju Nayak and at that
[2024:RJ-JP:10907-DB] (24 of 28) [CRLA-375/2000]
time, Rajendra Grover came and told them to wait there and left
for the house of Raju Nayak. This witness has also narrated the
registration number of jeep as RJ-14-2C-1919 and has stated that
a jeep came and hit the motor-cycle of the deceased. As per this
witness, when they reached the place where the incident had
taken place, the Police had already arrived. As per this witness,
the accused ran after the injured for around 60-70 steps. Though
this witness has mentioned that they were standing in an empty
plot near the place of occurrence, his admission that when they
reached the place where Rajendra Grover was lying, the Police had
already reached, clearly goes to show that this witness was not
actually present at the time of occurrence and reached after the
arrival of police, thus this witness is not reliable. The other two
persons i.e. Raju Sharma and Virendra Sharma with whom this
witness has stated that he was present, have not been produced
by the prosecution as witnesses. Pankaj Sharma (PW-7) has
admitted that he is having criminal antecedents. Moreover, witness
of the site plans have not been examined by the prosecution.
36. Witness - Pankaj Sharma (PW-7) has stated before the Court
that he has identified the accused persons in jail; Dashrath Singh
vide Exhibit-P/12 and Mahavir Singh vide Exhibit-P/15. With
regard to test identification parade, Gopal Singh (PW-23), Circle
Officer, in his cross-examination, has admitted that when the
accused were produced before him, they were not masked. He has
also admitted that on 30.12.1997 accused were produced for
police remand and in Exhibit-D/7, there is no mention that the
accused were masked and produced before the Court. In the
[2024:RJ-JP:10907-DB] (25 of 28) [CRLA-375/2000]
remand order also, it was not mentioned that face of the accused
was covered when they were produced before the Court. It is also
admitted that in Exhibit-D/9 & D/10, in the orders of the
Magistrate, it is not mentioned that the accused have been
produced with their faces covered. Thus, the test identification
parade looses its significance. As admitted by Ganpat Singh
(PW-15), Investigating Officer, in the site plan (Exhibit-P/5), the
portion marked as '11' is the tea kiosk where witness-Pankaj
Sharma (PW-7) and two other persons were standing. From that
place, the place marked as 'X' where the injured was lying, is not
visible. The possibility of Pankaj Sharma witnessing the incident is
thus not possible. This witness is also having criminal antecedents
and he is a chance witness.
37. As per the prosecution case, the deceased had gone to the
house of Raju Nayak to talk about some cricket match, however,
all the Investigating Officers have deposed before the Court that
they were not aware of any cricket match, as to amongst whom it
was to be played and as to who was the umpire. It is further
important to note that Raju Nayak (PW-2), who has lodged the
report (Exhibit-P/3) does not mention about Pankaj Sharma (PW-
7) in the FIR. Thus, basing conviction on the statements of Raju
Nayak and Pankaj Sharma was not appropriate. One of the
accused was acquitted by the learned Trial Court, six accused were
acquitted by the this Court and complainant's SLP against
acquittal stands dismissed, thus the prosecution case as made out
in the FIR is not established.
[2024:RJ-JP:10907-DB] (26 of 28) [CRLA-375/2000]
38. As far as the present two appellants- Dashrath Singh and
Mahaveer Singh are concerned, they are said to be armed with an
axe and an iron pipe respectively. The axe recovered from
Dashrath Singh was crescent shaped, whereas as per the doctors,
the injuries caused to the deceased cannot be sustained by a
crescent shaped axe. From Mahavir Singh, an iron pipe has been
recovered, but the same was not found to be bloodstained. The
dying declaration recorded enroute the hospital and the oral dying
declaration made by the deceased to his brothers are not reliable
as discussed by us in the preceding paragraphs. The statements of
Raju Nayak (PW-2), Surendra Grover (PW-5), Mahendra Kumar
Grover (PW-6) and Pankaj Sharma (PW-7) do not inspire
confidence, as all of them have criminal antecedents and these
witnesses are not of sterling-worth so as to base the conviction on
their evidence. We, therefore, deem it proper to allow the Criminal
Appeal No.375/2000 preferred by accused appellants - Dashrath
Singh and Mahavir Singh and quash & set aside the judgment
dated 18.05.2000 qua the present accused-appellants.
39. D.B. Criminal Appeal No.331/2004 titled as Kripal Singh
Versus State of Rajasthan also has very peculiar facts. Kripal
Singh has been tried separately and has been convicted and
sentenced vide judgment dated 28.01.2004. The facts in Kripal
Singh's case are that after the occurrence, police through its
informer got information that Kripal Singh is the main accused,
who has designed this incident and if any information is required,
the same can be obtained from Kripal Singh. As per the
prosecution case, on 29.12.1997 a team was made to arrest the
[2024:RJ-JP:10907-DB] (27 of 28) [CRLA-375/2000]
accused. An informer of the Police called up Kripal Singh from the
mobile of S.P. North and whatever communication took place
between Kripal Singh and the Mukhbeer was recorded. S.P. North
has not been produced before the Court to prove that his mobile
set was used by the Mukhbeer. Moreover, possession of the mobile
phone has not been established as there is no recovery of mobile
phone from Kirpal Singh. Further, no call details have been
produced to establish that a telephonic communication took place.
The transcript of the call has been prepared from memory and the
same had not been sealed. The informer has also not been
produced, who posed himself as Dashrath Singh when he called
Kripal Singh. It is also evident that Kripal Singh was being called
at 2:49 PM on 29.12.1997, however, arrest of the accused took
place after almost six hours. Since, Dudu is at a distance of just
60 kms from Jaipur, there is no reason as to why the Police did not
raid the place of hiding of the accused, when they had information
of the same at 2:50 PM. It is also important to note that no arrest
memo was made at Bannaji mid-way at Dudu and the arrest was
made at Jaipur. Even assuming that Kripal Singh informed the
informer about the place of hiding of the accused, the same would
not implicate the accused of having been involved in the
commission of the offence. There is not an iota of evidence to
establish that Kripal Singh was a member of the accused group or
that he was involved in the conspiracy. Merely because Kripal
Singh had informed that all the accused are at Dudu, at mid-way
of Bannaji, police has filed charge-sheet against Kripal Singh for
being a conspirator in the offence of murder of Rajendra Grover.
[2024:RJ-JP:10907-DB] (28 of 28) [CRLA-375/2000]
40. Learned Trial Court has clearly erred in convicting the
accused for offence under Section 302 read with Section 120-B of
IPC as there was no evidence to connect the accused with the
alleged offence. We are of the considered view that conviction of
the accused - Kripal Singh cannot be sustained on this evidence.
We, therefore, deem it proper to allow the Criminal Appeal
No.331/2004 preferred by accused appellant - Kripal Singh and
quash & set aside the judgment dated 28.01.2004.
41. As a consequence of the above, both the appeals are
allowed. The conviction and sentence of the accused appellants
are set aside. They are acquitted of all the charges levelled
against them. The accused appellants - Dashrath Singh, Mahaveer
Singh and Kripal Singh are on bail during the pendency of these
appeals, their bail bonds are forfeited.
42. Appellants are directed to furnish personal bond in the sum
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 Registrar
(Judicial) within two weeks from today 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.
43. A copy of this order along with record of the learned Trial
Court be sent forthwith.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
SUNILSOLANKI/PS
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