Ghanshyam vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Dhanna Lal S/o. Narayan, his two sons Prabhu Lal, and Jamna Lal, and three sons of Prabhu Lal namely Chironji Lal, Dhanna, and Dhuli Lal have been tried by the Court of Additional Sessions Judge, Aklera, Distt. Jhalawar for causing murder of Heera Lal S/o. Parmanand (P.W.11) first informant, complainant.

The case of the prosecution is that the due to gun shot fired by Chironji Lal, Heera Lal had died, and thus, trial Court had substantively convicted Chironji Lal for offence under Section 302 IPC, and Section 3/25 of the Arms Act. Remaining five accused namely Dhanna, Dhuli Lal, Prabhu Lal, Dhanna Lal, and Jamna Lal were convicted for offence of murder with aid of Section 149 IPC. All the six appellants were also convicted for offence under Section 148 IPC, for having formulated unlawful assembly to cause murder of Heera Lal.

Vide a separate order of even date, appellants were sentenced as under:--

"Accused appellant Chironji Lal

For offence under Section 302 IPC: to undergo life imprisonment, and to pay a fine of Rs. 1000/-, and in default thereto, to further undergo one month''s rigorous imprisonment.

For offence under Section 148 IPC : to undergo one year rigorous imprisonment.

For offence under Section 3/25 of the Arms Act : to undergo six months rigorous imprisonment, and to pay a fine of Rs. 1000/-, and in default thereto, to further undergo one month''s rigorous imprisonment.

Accused appellants Dhanna, Dhuli Lal, Prabhu Lal, Dhanna Lal, and Jamna Lal :

For offence under Section 302/149 IPC : to undergo life imprisonment, and to pay a fine of Rs. 1000/-, and in default thereto, to further undergo one month''s rigorous imprisonment

For offence under Section 148 IPC : to undergo one year rigorous imprisonment."

The substantive sentences were ordered to run concurrently.

The twin question raised before us.

"Whether Chironji Lal has been falsely implicated or not ?, and whether other appellants, except Chironji Lal who have played no overt role in the occurrence, whether their conviction can be sustained with aid of Section 149 IPC?"

Heera Lal, as per testimony of Parmanand (P.W.11) in the Court, died at the spot.

The occurrence in the present case, has taken place on 25th January, 2005 in the afternoon at 2.15 P.M. The case was registered at Police Station, Jawar Distt. Jhalawar on 25th January, 2005 at 2.45 P.M. Special Report reached Illakha Magistrate at Aklera, Distt. Jhalawar on 26th January, 2005 in the day time, as perusal of the FIR, reveals that the Special Report was sent to the Illakha Magistrate on 26th January, 2005 at 10.00 A.M.

Dr. Malkhan Singh, (P.W.8) on 25th January, 2005 at 3.15 P.M. had conducted autopsy on the dead body of Heera Lal. As per Post-Mortem Report (Ex. P/17), he had found following injuries on the dead body of Heera Lal:--

"To be typed later"

A perusal of the injuries reveals that all injuries have been caused with a fire-arm. As per opinion of the doctor, cause of death was due to hemorrhagic shock, due to gun shot injuries. Injuries were ante mortem in nature, and duration between calling of injuries, and death was within six hours.

However, in the examination-in-chief, Dr. Malkhan Singh (P.W.8) stated that as per internal examination, the gun shot injury after making entry in the right lung, had made an exit through left lung. Considering the damage caused to lung, he can reasonably infer that death in the present case is strenuous.

Parmanand (P.W.11), had appeared at the police station, and reported that he is having inimical relations with Prabhu Lal Lodha, as land dispute was pending between them. Chironji Lal having earlier caused injuries to his son Ghanshyam (P.W.15), is facing prosecution in the Court. On the day of occurrence i.e. 25th January, 2005 at about 1.30 P.M., Chironji Lal, Dhanna, and Dhuli Lal sons of Prabhu Lal had quarreled with Ghanshyam (P.W.15), son of complainant Parmanand (P.W.11). After Ghanshyam (P.W.15), was started giving beating by the accused, he came running to his house, and informed about the incident to me. Thereafter, after leaving Ghanshyam (P.W.15), in his house, he was going to his fields alongwith his son Heera Lal, then Chironji, Dhanna, Dhuli sons of Prabhu Lal, Prabhu Lal S/o. Nanda, Jamna Lal S/o. Dhanna Lal, Dhanna Lal S/o. Narayan, and Ramnath S/o. Heeralal after seeing them exhorted their co-accused Chironji Lal who was armed with gun that they all be killed. Chironji Lal fired a shot, which hit Heera Lal in the chest, due to which, Heera Lal fell on the spot. Occurrence was witnessed by Harak chand (P.W.10), and Ghanshyam (P.W.15).

The above said FIR was investigated. Report of investigation under Section 173(3) Cr.P.C. was submitted. After following necessary formalities, trial was entrusted to the Court of Additional Sessions Judge, Aklera Distt. Jhalawar.

The appellants were charged for various offences, they pleaded not guilty, and claimed trial.

Parmanand, first informant, complainant appeared as P.W.11. He improved the case of prosecution by attributing specific exhortation to Ramnath. He further stated that Dhulia and Jamna had given him kick blows.

It will be apposite here to reproduce true translation of examination-in-chief of Parmanand (P.W.11):--

"On 25th January, 2005 at 12.00 noon, I was going to well with Heera Lal. Heera Lal was ahead of me. Chironji, Prabhu, Dhuliya, Dhano, Jamno, Dhanno and Ramnath were sitting in the way. On seeing Heera Lal, they said, he be killed. Ramnath said fire, at a time, Chironji Lal fired a shot, which hit on the chest of Heera Lal. I raised noise, they ran after me to fire a shot. Dhuliya and Jamna caused me kick blows. Harak Chand and Ghanshyam came forward to save, due to which, accused ray away from the spot. I had lodged the report (Ex. P/18) regarding the occurrence, same bears my signature from C to D. On receipt of gun shot injury, Heera Lal died. Police had taken into possession blood stained, and simple soil. They have prepared memo (Ex. P/20) which bears my signature. Police had also made recovery memo of the vest and pent, same is (Ex. P/21), and same bears my signature. Police had also prepared (Ex. P/22), site plan of the spot, same contains my signature at point C to D. They have murdered Heera Lal due to grudge. Earlier thereto, they had given beating to Ghanshyam, for which, I had lodged report (Ex. P/33). They had also given beating to me earlier. True copy is (Ex. P/34). They have murdered my kaka (uncle) Mathuralal. Report is (Ex. P/35). I know the accused, they are present in the Court."

On the question asked by the Court, the witness stated that Chironji Lal had fired a shot, at that time, Dhuliya was armed with gandasi, Dhanna was armed with kulhari, Prabhu was armed with kulhari, Jamna was armed with lathi, another Dhanna was armed with stick and Ramnath was armed with stick. He further stated that accused was sitting on a way, and on seeing Heera Lal, Ramnath had exhorted Chironji to fire a shot. Everybody said that shot be fired. Do not leave them. From where Chiranji was sitting, he had fired a shot.

Ghanshyam (P.W.15), son of Parmanand (P.W.11), and brother of deceased, in the Court stated that 14-15 months ago, at about 1.30 P.M. fight took place between accused, and me. Chironji Lal, Dhanna Lal, another Dhanna Lal, Dhuli Lal and Jamna Lal had abused him. They had thrown stones at him. He ran away to his house, and told everything to his father Parmanand (P.W.11). Thereafter, his father Parmanand and brother Heera Lal, were going to field to start the engine. Near the well, Chironji Lal had fired a shot from his gun at Heera Lal. The shot hit in the chest of Heera Lal. Chironji Lal was armed with gun, Dhanna Lal, Dhulilal and Jamnalal were armed with gandasi, Jamna and Prabhu were armed with kulhari. All accused said to their co-accused Chiranji Lal that Heera Lal be murdered. On their asking, Chiranji Lal had fired a shot at Heera Lal. I and, my father had seen the occurrence. We brought injured Heera Lal to Javar Police Station. Parmanand has lodged the report.

Rakesh (P.W.1), had attested panchayatnama (Ex. P/1) of dead body. He further stated that how the occurrence took place, he is not aware, he has not seen the occurrence.

Constable Ratan Lal (P.W.2), stated that he had carried the gun to the Armour Branch.

Prem Narayan (P.W.3), stated that on 25th January, 2005, accused Prabhulal, Dhannalal, Dhulilal, Dhannalal S/o. Narayan, Jamna Lal and Chironji Lal were arrested.

Jagannath (P.W.4), stated that in his presence no gun was recovered. This witness was declared hostile, having not supported the prosecution.

Mannalal (P.W.5), stated that he was posted as Armour in the police line, and on 22nd February, 2005, Constable Ratan Lal (P.W.2), had presented one gun before him.

Mohd. Mobin (P.W.6) being in charge of the Malkhana, he alongwith Kailash Chand (P.W.7), who carried the case properly for examination to the Forensic Science Laboratory were examined to prove link evidence.

Kailash Giri (P.W.9) posted as S.H.O. He conducted the investigation, and prove various facet of investigation.

Harak Chand, another eye witness appeared as P.W.10, and he stated in categoric terms that he had not seen the occurrence. He was declared hostile.

Sampatlal (P.W.12) had attested panchayatnama (Ex. P/1) of the dead body.

Begaram (P.W.13), and Girdhari lal (P.W.14), had carried the sealed packets to the Forensic Science Laboratory.

Champalal (P.W.16), and Bheru lal (P.W.17), had attested site plan of the spot, and stated that site plan had made at their instance.

Prem Singh (P.W.18), was posted as Constable. He stated that he had made site plan of the spot from where injuries were caused.

Thereafter, prosecution closed its evidence.

Thereafter, statement of the accused under Section 313 Cr.P.C. were recorded. All incriminating evidence was put to them, they pleaded false implication.

Shri A.K. Gupta, learned counsel for the appellants has stated that relations between the parties were inimical. At the instance of the complainant-party, accused are also facing prosecution for having caused injuries to Ghanshyam (P.W.15), Parmanand (complainant), and they have committed murder of their uncle Mathuralal.

Counsel for the appellants has submitted that it is a case of blind murder and, therefore, to settle enmity, witnesses have falsely named Chiranji Lal, present appellant. Shri A.K. Gupta, advocate has submitted that in the Court Parmanand (P.W.11), has stated that Dhuliya and Jamna had given him kick blows, but no such injuries have been found in the medical evidence. Shri A.K. Gupta, advocate has submitted that it is case of the prosecution that earlier thereto, accused had given injuries to Ghanshyam (P.W.15), but same has not been medico-legally examined, and no injuries have been found present.

The learned Public Prosecutor Shri N.S. Dhakad, has supported the case of the prosecution.

Having given our thoughtful consideration to the rival submissions of the parties, we are of the view that enmity is a double edged weapon, it can be a ground for false implication but at the same time, it may be motive to commit the offence.

Considering the relations between the parties are inimical and Parmanand (P.W.11) being father, and Ghanshyam (P.W.15) being brother are interested witnesses, and have allegedly received injuries earlier at the hands of the accused, we have no hesitation to hold that both the witnesses belong to tainted source. Harak Chand (P.W.10), independent witness has not supported the prosecution case. In these circumstances, the Court is put at guard, and has to be circumspect to rule out over implication of the accused. In the present case, there is a delay of one day in reaching of the special report.

In Bijoy Singh and Another Vs. State of Bihar, AIR 2002 SC 1949 : (2002) CriLJ 2623 : (2002) 2 Crimes 437 : (2002) 1 JT 372 Supp : (2002) 3 SCALE 592 : (2002) 9 SCC 147 : (2002) 3 SCR 179 : (2002) 1 UJ 749 : (2002) AIRSCW 1873 : (2002) 4 Supreme 362 , the Hon''ble Supreme Court has held as under:

"6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.

Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it."

In the instant case, the copy of the report referred to in Section 157 CrPC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be" and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said reprt in terms of Section 157 CrPC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission."

Taking into account the inimical relations between the parties, and the fact that independent witness has not supported the prosecution case, and special report reached Illakha Magistrate after one day, this Court is of the view that except Chiranji Lal, other accused namely Dhanna S/o. Prabhu Lal, Dhuli Lal S/o. Prabhu Lal, Prabhu Lal S/o. Nanda, Dhanna Lal S/o. Narayan, and Jamna Lal S/o. Dhanna Lal, are entitled to benefit of doubt. As per the fir, Dhanna S/o. Prabhu Lal, Dhuli Lal S/o. Prabhu Lal, Prabhu Lal S/o. Nanda, Dhanna Lal S/o. Narayan, and Jamna Lal S/o. Dhanna Lal, have played no overt role. In the Court, Parmanand (P.W.11), stated that Dhuliya and Jamna had given him kick blows, but no such injuries have been found in the medical evidence. In the occurrence, only one shot has been fired. In the fir, all accused have been said exhortation, while in the Court specific exhortation was assigned to Ramnath. Since the witnesses are emerged from a tainted source, there is every possibility that by assigning exhortation, they are widen the net too far, and have involved five other male members of the family.

Another feature of the case which we cannot ignore is that after Ghanshyam (P.W.15), was allegedly given injuries, he had returned to his house, it was not known to the accused that Parmanand (P.W.11), and Heera Lal, will go to his fields to irrigate them by starting engine. Therefore, it seems probable that Chiranjilal who saw the Heera Lal and Parmanand (P.W.11) coming towards the field being armed with gun had fired a solitary shot. Since the parties have suddenly met on the way, and accused were not knowing that deceased, and his father will be going to his fields, we cannot held that there was any pre-concern or pre-arrange plan on the part of the accused to commit offence of the murder.

Hon''ble Apex court in Idrish Bhai Daudbhai Vs. State of Gujarat, (2005) CriLJ 1422 : (2005) 2 JT 411 : (2005) 3 SCC 277 : (2005) 1 SCR 885 : (2005) 2 UJ 1163 has held as under:--

(sic)

We are of the view that Chiranji Lal, has been rightly convicted for offence under Section 302 IPC, and no ground is made to cause interference so far conviction and sentence awarded upon Chiranji Lal is concerned.

Resultantly, appeal filed by Chiranji Lal is dismissed. However, for the reasons spelt out by us above, as a matter of abundant caution, we shall extend benefit of doubt to appellants Dhanna S/o. Prabhu Lal, Dhuli Lal S/o. Prabhu Lal, Prabhu Lal S/o. Nanda, Dhanna Lal S/o. Narayan, and Jamna Lal S/o. Dhanna Lal by setting aside their conviction and sentence awarded upon them by the trial Court.

Hence, the appeal preferred by Dhanna S/o. Prabhu Lal, Dhuli Lal S/o. Prabhu Lal, Prabhu Lal S/o. Nanda, Dhanna Lal S/o. Narayan, and Jamna Lal S/o. Dhanna Lal is accepted, and they are acquitted of the charges.