Rajasthan High Court - Jodhpur
Ratan Singh And Ors vs State Of Rajasthan on 17 October, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:40787-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 237/1993
1. Ratan Singh S/o Nand Singh, by caste Rajput, R/o Khaida,
Distt. Bhilwara.
2. Siya Ram S/o Daryavdas, by caste Vaishnav, R/o Khaida,
Distt. Bhilwara.
3. Bhagwat Singh S/o Sobhag Singh, by caste Rajput, R/o
Khaida, Distt. Bhilwara.
4. Narayan S/o Kishan Mali, R/o Khaida, Distt. Bhilwara.
5. Bhanwar Singh S/o Narayan Singh, by caste Rajput, R/o
Khaida, Distt. Bhilwara.
6. Ladu Lal S/o Bansi Das Vaishnav, R/o Khaida, Distt.
Bhilwara.
7. Bhanwar Singh S/o Sobhag Singh, by caste Rajput, R/o
Khaida, Distt. Bhilwara.
(All at present lodged in Central Jail at Ajmer)
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr.Praveen Vyas, Amicus Curiae.
For Respondent(s) : Mr.C.S.Ojha, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Judgment Reserved on : 18.09.2024
Judgment Pronounced on : 17.10.2024
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[Per Hon'ble Mr. Justice Munnuri Laxman] :
1) The present appeal is directed against the judgment dated
30.06.1993 passed by the learned Additional Sessions Judge,
Bhilwara on the file of Sessions Case No.110/1991, whereby the
appellants were convicted for the offences under Sections 147,
302 read with Section 149 of IPC and sentenced to undergo
[2024:RJ-JD:40787-DB] (2 of 11) [CRLA-237/1993]
rigorous imprisonment for life and to pay a fine of Rs.200/- each;
in default of payment of fine, to further undergo 3 months' simple
imprisonment for offence u/Sec. 302 read with Sec.149 of IPC,
and to undergo 1 year's simple imprisonment for offence under
Section 147 of IPC. The appellants were acquitted of the charge
under Section 148 of IPC.
2) The present appeal is at the instance of the accused-
appellants.
3) The sum and substance of the prosecution case is that
there was a way dispute in between the accused and the
deceased-party. Accused were also convicted on the complaints
made by the deceased-party with regard to such a way dispute.
On 08.09.1991 at about 10:00 a.m., the deceased-Bhopal Singh,
Mahendra Singh (maternal grandson of the deceased) and
Virendra Singh (paternal grandson of the deceased) were standing
on the roadside of village Khaida to board the bus. Accused Ratan
Singh (A-1) and Siyaram (A-2) with lathis in their hands were also
standing there. The complainant-Laxman Singh, who is son of the
deceased-Bhopal Singh, was coming from the field along with
oxen to go back to his home. At that time, accused-Bhagwat
Singh (A-3), Narayan Mali (A-4), Bhanwar Singh S/o Narayan
Singh (A-5), Ladulal (A-6) and Bhanwar Singh S/o Shaubhag
Singh (A-7) suddenly came from the field of Kalu Nayak armed
with lathis and provoked A-1 and A-2 to kill Bhopal Singh. All the
accused allegedly started beating the deceased-Bhopal Singh with
the lathis with intention to kill him. They inflicted injuries on the
head, hands and neck of the deceased and there was a profuse
bleeding from the head, hands and neck of the deceased. When
[2024:RJ-JD:40787-DB] (3 of 11) [CRLA-237/1993]
Laxman Singh, Mahendra Singh and Virendra Singh tried to rescue
the deceased, they were threatened to meet the same fate, which
the deceased met. Therefore, they could not go to rescue the
deceased. After the incident immediately, the deceased was
shifted to hospital and an FIR was lodged at Police Station Banera,
District Bhilwara for offences under Sections 147, 148, 149, 307 of
IPC.
4) The police during the course of investigation recorded the
statement of Bhopal Singh (deceased) and also visited the scene
of offence, prepared the scene of panchnama and recovered the
incriminating material found at the scene of offence. On
09.09.1991, the deceased while undergoing treatment succumbed
to his injuries and therefore, the offence was altered. The inquest
was conducted over the body of the deceased and body was
subjected to postmortem examination. On arrest, accused made
disclosure statements under Section 27 of the Evidence Act under
Exhibit-P/15 to P/21 and basing on such disclosure statements,
the lathies (sticks) from each of the accused were recovered under
Exhibit-P/22 to P/28. After investigation, the police found no role
of Narayan Singh and for the remaining accused i.e. A-1 to A-7,
the chargesheet was filed for offence under Section 147, 148, 149
and 302 of IPC.
5) Initially, the cognizance was taken against A-1 to A-7.
Subsequently, basing on the evidence of PW-1 Laxman Singh,
accused-Narayan Singh S/o Udai Singh (A-8) was summoned to
face the trial. The prosecution in support of its case examined PW-
1 to PW-12 and relied upon the documents Exhibit-P/1 to P/29.
[2024:RJ-JD:40787-DB] (4 of 11) [CRLA-237/1993]
Accused in support of their case examined DW-1 and DW-2 and
relied upon the documents Exhibit-D/1 to D/7.
6) The trial court on the basis of evidence on record found
that no case was made out against accused-Narayan Singh S/o
Udai Singh (A-8) and accordingly, acquitted him of all the charges.
Accused No.1 to 7 were also acquitted of the offence under
Section 148 of IPC. However, accused No.1 to 7 were convicted for
offences under Sections 147, 302 read with Section 149 of IPC
and sentenced them as indicated herein-above. Hence, the
present appeal.
7) Heard the learned counsel for the appellants-accused and
the learned Public Prosecutor appearing of the State.
8) The learned counsel appearing for the appellants-accused
has contended that the entire case of the prosecution rests upon
related witnesses of PW-1 and PW-2, who are no other than own
son and grandson of the deceased. PW-3 Mahendra Singh, who is
other grandson of the deceased, has not supported the
prosecution case. According to learned counsel, the evidence of
such related witnesses are suffering from various inconsistencies
and the conduct of these witnesses in not intervening the attack to
rescue the deceased, rules out their presence at the scene of
offence. The statements of these witnesses show that accused
Nos.1 to 8, who were holding the lathies, attacked on the
deceased. Each one of them inflicted the injuries. Whereas, the
postmortem report reveals that only 4 injuries were found on the
body of the deceased. Out of them 3 injuries were fatal in nature
and another injury was lacerated wound, which resulted in
fractures. The absence of multiple injuries rules out the theory set
[2024:RJ-JD:40787-DB] (5 of 11) [CRLA-237/1993]
up by the witnesses that 8 persons attacked on the deceased with
lathies. This creates doubt over the presence of the witnesses at
the time of the incident.
9) The learned counsel for the appellants-accused also
contended that the statements made before the police relating to
investigation in the present case clearly disclose that 7 persons
involved in the incident. Whereas, the statement made by PW-1
Laxman Singh before other Investigating Officer in the
proceedings under Section 107 of Cr.P.C. shows that 34 persons
participated in the attack on the deceased. These inconsistencies
have been clearly established from the evidence relied upon by
the prosecution and produced by the accused. These material
discrepancies were not properly appreciated by the trial court.
10) The learned counsel for the appellants-accused also
contended that the prosecution claimed to have recorded the
statement of Bhopal Singh (deceased) and such a statement
become oral dying declaration of the deceased. It was recorded
into writing by Nazir Mohammad, A.S.I. (PW-10). This important
piece of evidence was withheld by the prosecution. No reasons
have been assigned for withholding such evidence and according
to learned counsel, withholding such important piece of evidence
suggest case set up by the prosecution is false. Suppression of
this crucial dying declaration of the deceased coupled with
absence of multiple injuries on the deceased when the specific
evidence of witnesses that all the accused attacked on the
deceased, clearly create a doubt over the prosecution case. Such
evidence of related witnesses requires to be scrutinized closely. On
close scrutiny, their evidence found to be doubtful. The evidence
[2024:RJ-JD:40787-DB] (6 of 11) [CRLA-237/1993]
of PWs-1 & 2 require corroboration, which is lacking in the present
case.
11) Lastly, the learned counsel for the appellants-accused has
submitted that in spite of seizure of such lathis (sticks), the
prosecution failed to produce the same in the court. Had these
sticks have been produced, it would have been made out whether
the injuries with such sticks are possible on the deceased. Non-
production of such an important material objects in spite of
seizure of them creates doubt over the prosecution case.
Therefore, the accused should be given the benefit of doubt.
12) The learned Public Prosecutor has submitted that
eyewitnesses' evidence cannot be discarded merely because they
are closely related to the deceased. The eyewitnesses examined
by the prosecution have categorically stated the role of the
accused. Merely because some discrepancies exist in their
evidence, such discrepancies cannot be treated as a circumstance
to discredit the evidence of the eyewitnesses. According to learned
Public Prosecutor, the trial court has rightly relied upon the
evidence of PWs 1 and 2 and rightly convicted the appellants,
which does not require any interference.
13) The learned Public Prosecutor also contended that the
participation of 34 witnesses was made in the proceedings under
Section 107 of Cr.P.C. based on threat perception and the
statement cannot be taken to mean that 34 persons have
participated in the attack. The statements allegedly made before
the Investigating Officer in the proceedings under Section 107 of
Cr.P.C. cannot be taken to discredit the evidence of witnesses. The
learned Public Prosecutor also submitted that there is lapse on the
[2024:RJ-JD:40787-DB] (7 of 11) [CRLA-237/1993]
part of the prosecution in not producing the dying declaration and
the material objects seized at the instances of the accused, but
such a lapse cannot go for the benefit of the accused when there
is convincing eyewitness account before the court below.
Therefore, such a lapse cannot go to the disadvantage of the
prosecution and he prayed for dismissal of the appeal.
14) We have carefully considered the rival contentions and
perused the impugned judgment and other materials on record.
15) The evidence of PW-1 and the First Information Report
show that the offence occurred at the bus-stop, which is a public
place. In the initial report, the complainant referred participation
of 7 persons i.e. A-1 to A-7. The same is the case of the
complainant in his statement u/Sec. 161 Cr.P.C. also. However, in
the evidence before the court, PW-1 Laxman Singh has attributed
the role to accused-Narayan Singh (A-8). According to him,
accused No.8 instigated the other accused to murder the
deceased. Whereas, in the First Information Report, A-3 to A-7
who came from the Kalu Nayak field armed with lathis provoked A-
1 and A-2 to kill the deceased.
16) The evidence of PWs-1 and 2 show that 8 accused were
holding lathis and all of them attacked on the deceased with them.
The postmortem report shows that there were 4 lacerated wounds
found on the body of the deceased. One is on the top of the head
and others are on parietal region and frontal bone and right arm.
When all the eight persons had participated and inflicted lathis
blows, there must be more than 4 injuries. The absence of
multiple injuries other than 4 injuries suggests non-participation of
some members of the unlawful assembly. Even though their
[2024:RJ-JD:40787-DB] (8 of 11) [CRLA-237/1993]
presence was there, they were not involved in infliction of the
injuries. The postmortem report do not indicate the presence of
any injuries on the legs. Whereas, the evidence of these two
witnesses show that accused also inflicted injuries on the leg of
the deceased. This lapse is one of the circumstance to discredit
the witnesses' testimony.
17) The evidence of PWs-1 and 2 show that they were only
mute spectators. They claimed that they could not make effort to
rescue the deceased as they were threatened. PW-3 Mahendra
Singh do not support the prosecution story and he has turned
hostile. The trial court has rightly discarded the evidence of PW-3.
The incident occurred on the day light. There is no specific overt
act attributed to each of the accused. The general and omnibus
statements have been made that all the accused had attacked on
the deceased. If multiple injuries were present then the
participating of all the accused can be inferred and absence of
specific overt act in the group attack can be ignored. The ocular
evidence with regard to attack by all the accused are also not
supporting with the medical evidence. There is no rule that the
evidence of related witnesses require any corroboration and such
evidence should be discredited on account of relation. The only
rule is that such an evidence has to be carefully and cautiously
scrutinized. If such evidence is sterling in nature, it does not
require any corroboration unlike interested witnesses. PWs-1 and
2 are not interested witnesses. There was no motive attributed to
them to speak against the accused so as to gain any interest in
the litigation.
[2024:RJ-JD:40787-DB] (9 of 11) [CRLA-237/1993]
18) The statement of PW-1 Laxman Singh under Exhibit-D/1,
which was made to the Police Officer in order to initiate
proceedings under Section 107 of Cr.P.C. shows that 34 persons
involved in the attack on the deceased and most of the names
were provided by him. It is also stated that the police could only
involve 7 persons and other accused were not chargesheeted. This
specific statement is going against the First Information Report
and the statement made to the police and also the evidence in the
Court. PW-1 Laxman Singh and PW-2 Virendra Singh attributed
role to A/8, which the court below did not accept. The statement
of participation of more accused than actual accused clearly shows
that there is motive to falsely implicate more person than actual
participants in the incident. The participation of the accused with
reference to injuries shows that the testimony of PWs-1 and 2 is
exaggerated one and they tried to implicate more and more
persons. Such evidence requires corroboration and it cannot be
said to be sterling in character.
19) The other lacuna on the part of the prosecution is that
the lathis recovered at the instance of the accused were not
produced before the Court. There is no reason for non-production
of such material objects and it is not known whether it is possible
to inflict such injuries with the alleged sticks/lathis to the
deceased. The other lapse on the part of the prosecution case is
suppression of oral dying declaration of the deceased, which was
recorded by the A.S.I. and such dying declaration is crucial
material in this case. There is no proper explanation for not
bringing such an important piece of evidence on record. Perhaps,
such suppression gives inference that it is against the prosecution
[2024:RJ-JD:40787-DB] (10 of 11) [CRLA-237/1993]
case and the non-production of such a crucial piece of evidence
raises doubts about the prosecution's assertion regarding the
number of accused involved in this case.
20) Examining the above perspective of the evidence carefully,
this Court feels that it is unsafe to rely upon those two
eyewitnesses, who are closely related to the deceased unless
some corroboration gets from the other evidence. Such
corroboration is lacking in this case. This Court is not inclined to
sustain the conviction of the appellants on the basis of above two
eyewitnesses, more particularly suppression with regard to dying
declaration of the deceased. Therefore, the benefit of doubt is to
be extended to the accused-appellants.
21) In the result, the criminal appeal is allowed. The conviction
and sentence imposed by the trial court vide impugned judgment
dated 30.06.1993 is set aside and the appellants are acquitted of
the charges under Section 147, 302 read with Section 149 of IPC.
The appellants are on bail, their bail bonds shall continue for 3
months and thereafter, stand discharged.
22) Keeping in view the provision of Section 437-A Cr.P.C.,
appellants are directed to furnish a personal bond in a sum of
Rs.40,000/- each and a surety bond in the like amount, before the
learned Trial Court, which shall be made effective for a period of
six months, to the effect that in the event of filing of Special Leave
Petition against this judgment or for grant of leave, appellants, on
receipt of notice thereof, shall appear before the Hon'ble Supreme
Court as soon as he would be called upon to do so.
[2024:RJ-JD:40787-DB] (11 of 11) [CRLA-237/1993]
23) This Court is thankful to Mr.Praveen Vyas, who has
rendered his assistance as Amicus Curiae on behalf of the
accused-appellant, in the present adjudication.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J
185-NK/-
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