Chand Mal S/o Shankar Lalji Jat vs State of Rajasthan

The instant appeal has been filed against the

judgment dated 4.12.1989 passed by learned Sessions Judge,

Pratapgarh in Sessions Case No.73/1985 convicting and

sentencing appellant-accused Chand Mal as under:-

Under Section 302 I.P.C life imprisonment and a fine of

Rs.200/- and in default to pay fine, to undergo for four

months rigorous imprisonment.

Under Section 460 I.P.C Five years rigorous imprisonment

and a fine of Rs.200/- and in default to pay fine to undergo

for four months rigorous imprisonment.

Under Section 148 I.P.C One year rigorous imprisonment

and a fine of Rs.100/- and in default to pay fine to undergo

for two months rigorous imprisonment.

Under Section 323 / 149 I.P.C six months rigorous

imprisonment and a fine of Rs.100/- and in default to pay fine

to undergo for two months rigorous imprisonment.

The recitals of the F.I.R Ex.P22 reads as under :-

"VERNACULAR MATTER OMITTED"

Nine accused persons namely Jorawar Singh,

Madan Lal, Chandmal, Bhagwati Lal, Jagdish, Manohar, Ashok,

Gopal, Suresh were tried by the trial court, the prosecution

produced as many as nineteen witnesses and got exhibited fifty

nine documents defence has also produced one witness, while

arriving at the impugned findings, the learned trial court acquitted

eight accused persons and convicted accused-appellant Chandmal,

who is before us as an appellant.

Heard submission of both the sides, learned

counsel for the appellant-accused has argued that the trial Court

has disbelieved the story of the prosecution and eight out of the

nine accused were acquitted by the trial Court, it is an admitted

position that there was animosity between the family of the

Chandmal and that of complainant and criminal cases were

subjudice against complainant side, so he has falsely been

implicated in this case, there are vital contradictions in the

evidence of the prosecution, which goes to reveal that prosecution

has miserably failed to establish its case beyond reasonable doubt

against the appellant-accused. It has further been contended that

the trial Court has held, that the weapon of assault was Kulhari

(axe), which has been so said by several alleged eye witnesses,

whereas the said weapon has not been recovered, on the instance

of the accused-appellant Chandmal and the said Kulhari (axe) was

recovered on the information of another co-accused Jorawar, who

has already been acquitted by the trial court, notwithstanding the

trial Court has committed material illegality and irregularity in

accepting the evidence and basing the findings on the said set of

evidence, prosecution has failed to establish its case, so the

findings of the trial Court are not tenable and are liable to be

rejected, so appeal be allowed and the findings of guilt be set

aside.

On the contrary, learned public prosecutor has

contended that the case of the prosecution is totally proved on the

basis of the testimony of the several injured persons, who have

clearly indicated and have categorically said that accused Chand

Mal was liable for the alleged assault by giving Kulhari hit,

Maganiram was killed and several eye witnesses were injured in

the midnight, Chandmal was having ''hostility'' against the family

of the complainant, there were several cases subjudice between

both the sides , so to eliminate and to take avenge, family of the

complainant was assaulted after barging into the premises of the

complainant in odd night hours, injuries of the complainant side

have properly been explained by the medical evidence as well,

there is no alleged flaw in the findings of the trial Court, so appeal

be dismissed.

Examined the record and minutely gone through

the impugned findings.

Perusal of F.I.R, divulges that apart from

complainant Naraian Lal Jat, father of the complainant Shri

Magniram, Hajarilal and Kaluram allegedly sustained injuries and

Magniram later succumbed to his injuries. It is also mentioned

that owing to darkness the assailants (rascals) and their lathis and

Kulharis could not be identified since it is mentioned that "vU/ksjs ds

dkj.k cnek''kku o ykBh dqYgkMh igpkuus esa ugha vk;sA dsoy pkaney gh igpkuus esa vk;kA",

several witnesses of the prosecution have turned "hostile"

and they have not supported the version of the prosecution.

There are significant contradictions in the

testimony of almost all the eye-witnesses and they

have made several utterances in contradiction to their

earlier police statements.

PW.1 Hajari an injured witness, has said that

Chandmal had assaulted upon his father with '' Kulhari'',

whereas Ex.P.4 police statements of this witness, contains that

axe ''Kulhari'' was in the hand of Jorawar Singh Ex.P.4 police

statements have also got a recital that it was Chandni night and he

had identified ''Chandmal'' resident of Borkheri and Jorawar Singh,

Jagdish Kumawat and Suresh Kumawat, but contrary to this

version, Hajari had said that he did not identify others except

Chandmal, several aspects of his statements Ex.P.4 have been

discarded by this witness, since he has said that he did not

witness Jagdish, Jorawar Singh and Suresh at the place of

occurrence, while cross-examined he has totally collapsed the

story of the prosecution by saying that"VERNACULAR MATTER OMITTED" and he has specifically admitted

that after detention and confession of Chandmal, they could

know about his involvement, which makes the entire

testimony and contentions of Ex.P.22 F.I.R. false.

PW.2 Ambalal has gone contrary to the facts

on number of persons, allegedly involved in the incident,

because Ex.P.22 F.I.R discloses that there were six assailants,

whereas this witness has said that "nine assailants" were there,

this witness has also caused hostility to the version of the

prosecution, whereof the public prosecutor has requested for

cross-examining this witness, since such a note is there in the

statements of this witness. Unbelievable utterances of this witness

have also appeared, since he has said that "magniram ke alawa

baaki ke hum sabhi ke chote aai thi", this witness has also

contradicted several important versions of his police statements

Ex.P.5, since he has said that he too was injured and his mother

was also injured, but the F.I.R does not discloses anything alike,

likewise there is no injury report of Ambalal or his mother on the

record. Going contrary to the version of holding ''Kulhari'' by

Jorawar, as mentioned in police statements, he has said that

Chandmal was having ''Kulhari'', which also makes the testimony

of this witness non-trustworthy, he too has said that they were

having hostility with "Heera Das" and a case was also

subjudice against him, so they got suspicion against

"Heera Das", as well, as such, this witness does not help the

prosecution.

PW.3 Kishan Lal, PW.4 Ram Lal, P.W.5 Ram

Singh, PW.6 Om Prakash, P.W.7 Kalulal, PW.8 Laxmilal and

PW.9 Naraianlal have become "hostile" and vitals of their

police statements have been discarded by these witnesses.

PW.10 Naraian is author of the F.I.R, but several

important narrations of his police statements have been discarded

by this witness, he too has said that he could identify

Chandmal, but could not identify other accused, but has

specifically said that he did not mention several facts in

Ex.P.22 F.I.R. Ex.P.22 says that because of darkness,

accused persons, their lath''s and Kulhari could not be

identified, but this witness has said that he did not report

anything akin, Ex.P.22 discloses name of Chandmal

whereas this witness has said that apart from Chandmal

name of Jorawar Singh was also informed, which shrouds

contention of the F.I.R.

Contrary to the disclosure of Ex.P.22 FIR, he has said

that he did not report several such aspects, he has further

contradicted important narrations of Ex.D.1 police statements and

has also said that "Heera das" was having animosity with

them, he came in the night to kill them earlier, he had

beaten his father, he has further said that he is having

enmity with Chandmal for last 30 years, but he did not say it

in Ex.P.22 and has also said that Chandmal had lodged a

report against him regarding theft of wheat, in which his

bail was granted, he has also said that prior to this

incident, Chandmal had lodged a case of beating against

him, so it is clear that this witness has also made several

contradictory statements vis-a-vis to the F.I.R Ex.P.22 and

police statements. According to his testimony, he involves Jorawar

Singh apart from Chandmal, the alleged Ex.P.22 incriminates

Chandmal only, and there is an admitted position of animosity

between the rival sides.

PW.11 Dhapu wife of Naraian has said that she

did not sustain any injury and has also said that she is unaware

about any animosity with Chandmal because nothing of that kind

came before her, she too has said that she had identified

Chandmal, who was having ''Kulhari'' and hit Magniram and she

was witnessing while lying, she too has contradicted several parts

of her police statements. Contrary to her examination-in-chief, she

has said that it is correct that prior to this incident, Chandmal had

lodged cases of crop-theft and beatings, she has also said that in

Ex.D.2 police statements, she did not inform that Chandmal had

inflicted Kulhari injury upon Magniram. Vital contradictions, have

emerged in the testimony of this witness and she has contradicted

Ex.D.1 Police statements and at one point of time her

assertion that her family was not having any animosity

with Chandmal and contrary to that in her cross, her

assertion that criminal cases of Chandmal were there

against her family, makes the credentials of this witness

untrustworthy.

PW.12 Kaluram is an injured, but he has said

that he does not know as to who hit upon his grand-father

Magniram and who hit lathi on Magni is also not known to him, he

has said that Chandmal was having ''Kulhari'', but this witness

sustained injury of stone pelting and who caused it, is also not

known to him, in his cross-examination, he has said that he

was not interrogated by police and police did not ask anything

from him, he too has contradicted and disbelieved several

statements of Ex.D.3 police statements.

PW.13 Mangilal going contrary to the contents

of F.I.R, which contains that six persons were there, has named

nine persons as assailants, he has said that he could identify only

one person Chandmal and he does not know other accused

persons, he has also said that, prior to the arrival of villagers, the

accused persons fled away, he too has accepted that his family is

not having talking terms with Chandmal and cases are pending

between them, in his cross-examination, he has also said that

police did not interrogate him, contrary to the time of event,

which is of midnight, he has said that the quarrel, occurred in

the evening and at what time police came, he does not know,

he has further said that the quarrel took place in the

evening at 8 p.m., which makes the entire story doubtful. He

too has discarded several narrations of Ex.D.4 police statements.

Majority of the witnesses of the prosecution

have alleged that Chandmal was having an axe (Kulhari)

but contrary to it a "lathi" vide Ex.P.24A has been shown to

have been recovered from Chandmal, so it too is of no

credit.

PW.15 Shri Rajendra Kumar Gupta is a Doctor, who

conducted postmortem on the body of deceased Magniram on

07/04/1985, he has said that on 04/04/1985, Magniram was

admitted in comma condition because of head injury, he could not

regain consciousness and died on 06/04/1985, describing his

injuries, he has further said that according to his opinion,

Magnaram died of head injury and shock and the head injury was

sufficient to cause death in the normal course, he has further said

that he had examined Jhamkubai, Mangilal, Narain and Kalu on

04/04/1985 and had examined Hajarilal on 06/04/1985.

PW.18 Shri Rehmatulla has denied recovery of

''Kulhari'' and has become hostile, likewise PW.19

Mohammad Mian son of Shri Aman Khan has also denied

any recovery before him.

There were nine accused persons against whom

trial was conducted, but eight out of nine, have been

acquitted by the learned trial Court and the findings

suggest that the trial Court held that Kulhari was the

weapon of assault, but according to the statements of the

recovery witnesses, recovery of the said weapon Kulhari

(Ex.P.57) has not been established, because PW.18

Rehmatualla, recovery witness has become "hostile" and

another witness Nanakram has not been produced before

the trial Court and said ''Kulhari'' has been shown to be

recovered from "Jorawar Singh" and not from accused

Chandmal, who has been acquitted by the trial court.

Appellant-accused Chandmal was arrested vide Ex.P.3 on

10/04/1985 and according to his information Ex.P.51 a

"lathi" was recovered vide Ex.P.24A, which goes to say that

no such weapon Kulhari was recovered or attributed to

Chandmal.

Conviction U/s 460,148 and 149 denotes

collective culpability and these provisions are also attracted in

event of involvement of multiple accused persons but out of nine

accused persons, eight have already been acquitted by the trial

court, nevertheless solo accused appellant Chandmal has been

convicted under the said provisions of "collective culpability",

which too is unsustainable in the eye of law.

It is important that there is no State Appeal

against the acquittal of rest of the eight accused persons.

Prosecution has miserably failed to establish its

case on the basis of reliable and material evidence, which lacks in

this case, almost all the eye witnesses of the prosecution have

contradicted their police statements and contents of the F.I.R, as

well.

Kulhari has been shown to be recovered from one Jorawar

Singh, who has already been acquitted by the trial Court, whereas

in the testimony, ''Kulhari'' is attributed to the accused-appellant,

which has not been recovered at all from the instance or on the

information of the appellant-accused Chandmal, there is no

Kulhari injury on the body of the deceased.

Reliance has also been placed on the following authorities

Mahendra Singh Vs. State of Rajasthan, 1989 Supp (1) SCC

338, Ram Lakhan Singh & Others. Vs. State of Uttar

Pradesh, 1977 SCC (Cri) 474, Narainbhai Prajapati and

Others Vs. Chhatrasinh Kanji and Others, 1977 SCC

(Cri)284.

In catena of judgments including Kali Ram Vs.

State of Himachal Pradesh, (1973) 2 SCC 808; State of

Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa &

Ors. vs. State of Karnataka, (2007) 4 SCC 415; Upendra

Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and in

Golbar Hussain & Ors. Vs. State of Assam & Anr., (2015) 11

SCC 242, Hon''ble Supreme Court has observed that

"it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted"

Baijnath & Ors. vs. State of Madhya Pradesh,

2017 1 SCC 101, Hon''ble the Supreme Court has held that in the

cases of deficiencies of proof, benefit would be available to the

person charged and in Narendra Singh & Another v. State of

M.P ., (2004) 10 SCC 699, the Hon''ble Apex Court has also held

that in event of there being two possible views, one supporting

the accused should be upheld and Hon''ble the Supreme Court has

recognized presumption of innocence as a human right.

So, we feel that the findings of trial Court

deserves to be quashed because prosecution has failed to prove

its case beyond the confines of reasonable doubt and the

appellant-accused is entitled to get benefit of doubt.

We, therefore, allow the appeal, as such, the

impugned findings of learned trial Court are hereby

quashed, the appellant-accused is on bail, so he need not

to surrender, if such is not required in any other case, his

bail bonds are discharged.

Keeping in view, however, the provisions of

Section 437A Cr.P.C. the accused/appellant is directed to forthwith

furnish a personal bond in the sum of Rs.50,000/-(fifty thousand)

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 Special Leave Petition against

the judgment or for grant of leave, the appellant, on receipt of

notice thereof, shall appear before Hon''ble the Supreme Court.

Record of the lower Court be sent back, promptly with

a copy of the judgment.