Govind S/o Sh. Shankar vs State of Rajasthan

In this criminal appeal filed by the appellants, Govind, Amritlal and Raju @ Raj Kumar under Section 374 (2) Cr.P.C ., the judgment dated 26th of September, 2008 passed by learned Addl.

Sessions Judge (FT) No.3, Udaipur, Camp Salumber, in Session Case No.87/2007 is under challenge, whereby the learned trial court convicted the accused appellants for offence u/s 302 read with Section 34 of IPC and passed sentenced for life imprisonment against all the appellants along with fine of Rs.1000/- each, with default stipulation to undergo three months' imprisonment.

As per facts of the case, telephonic information was received at Police Station- Jawar Mines, District Udaipur, from one Narendra Kharadi, Ex-Pradhan, at 10.15 PM in the night on 11.08.2007 to the effect that one Manoharlal Meena has been murdered at Kalapayra-Sarada Road, and accused while throwing his dead body in a jeep, ran away from the place of occurrence.

Upon receiving such information, the SHO, Police Station- Jawar Mines, immediately went on the spot where complainant, Kanklal Meena S/o Manglaji, resident of Sarsiya, submitted a written report (Ex.P/1), in which following allegations were levelled by him, which reads as under:

"VERNACULAR MATTER OMITTED"

Upon aforesaid written report (Ex.P/1) submitted at 11.30 PM on 11.08.2007 formal F.I.R. No.84/2007 (Ex.P/18) was registered on 12.08.2007 at Police Station Jawar Mines against appellants for commission of offence u/s 302 of IPC .

After registration of the FIR, usual investigation was commenced. The dead body of deceased, Manoharlal, was subjected to postmortem at Primary Health Centre, Devpura, Udaipur by the Medical Board consisting of Dr. Suresh Mandovara and Dr. Kailash Chandra Meena, and postmortem report (Ex.P/7) was obtained on 12.08.2007 itself. The dead body of the deceased was handed over to the family members for cremation. The accused appellants were arrested and upon their information (six in number) given under Section 27 of the Evidence Act, the place of occurrence was identified, knife and blood stained clothes were also recovered as per information of the appellants. The site plan (Ex.P/3) was prepared and "Panchnama" (Ex.P/4) of the dead body was prepared for the purposes of investigation. The vehicle jeep was also inspected vide Ex.P/4 and other articles were taken in possession for the purpose of investigation from the place of occurrence, so also, recoveries were made as per information given by the accused appellants.

The SHO, Police Station Jawar Mines, submitted a charge sheet against the accused appellants after completion of investigation in the court of Judicial Magistrate, First Class, Sarada, District Udaipur from where the case was committed to the court of learned Sessions Judge, Udaipur, but later on, it was transferred to the court of Addl. Sessions Judge (FT) No.3, Udaipur Camp Salumber, for trial.

On the basis of evidence on record and after providing opportunity of hearing for framing charge, charge under Section 302 r/w Section 34 of IPC was framed against all the three accused appellant, but they denied the charges levelled against them and prayed for trial.

In the trial, statements of 27 witnesses were recorded and 65 documents were exhibited from the prosecution side. After recording the evidence of prosecution, the learned trial court proceeded to record the statements of the accused appellants u/s

313 Cr.P.C ., in which they denied all the allegations of the prosecution witnesses and said that they are falsely implicated in this case. In defence, 3 witnesses viz. DW.1 Bhera, DW.2 Gebilal and DW.3 Arjun, were produced and examined in the trial.

The learned trial court after recording evidence of both the sides finally heard arguments of both the parties and convicted all the three accused appellants for offence u/s 302 read with 34 IPC in Session Case No.87/2007 vide judgment dated 26.09.2008. In this appeal, the appellants are challenging the aforesaid judgment on various grounds.

Learned counsel for the appellants vehemently argued that finding of guilt recorded by the learned trial court is totally contrary to the definite evidence available on record and thus grossly erred in not considering the inconsistent evidence of PW.3- Ambalal and PW.4- Bhanwarlal, who were examined as eyewitnesses of the incident. Learned counsel for the appellants pointed out that on the date of incident i.e. on 11.08.2007 these witnesses were not existing, and for the first time they were introduced as eyewitness on 26.08.2007. The incident occurred on 11.08.2007 and the FIR (Ex.P/18) was lodged by the complainant PW.1- Kanaklal, father of deceased Manoharlal Meena on 12.08.2007 at Police Station Jawar Mines, in which names of two eyewitnesses, Devilal and Manoharlal S/o Bada, were disclosed and names of witnesses PW.3 and PW.4, Ambalal and Bhanwarlal, were not disclosed in the FIR.

While inviting our attention towards FIR, it is submitted that FIR was lodged on the basis of information furnished by the witnesses PW.12- Devilal and PW.23- Manoharlal to the complainant PW.1 Kanaklal, both these witnesses were examined by the prosecution as eyewitness, did not support the prosecution case and turned hostile. Learned counsel for the appellants submit that both above eyewitnesses, mentioned in FIR, neither disclosed the presence of other eyewitnesses, namely, PW.3, Ambalal and PW.4, Bhanwarlal in their statements recorded u/s 161 Cr.P.C . nor in the statements given on oath in the court, therefore, story of the prosecution become doubtful, so far as presence of aforesaid two witnesses at the place of occurrence is concerned. Learned trial court erroneously held the accused appellants guilty while relying upon testimony of PW.3- Ambalal and PW.4- Bhanwarlal, inspite of the fact that they were not present at the place of occurrence.

Learned counsel for the appellants argued that there is no allegation against other accused appellants, namely, Amrit Lal and Raju @ Raj Kumar for causing any injury or any weapon having being recovered from them. Learned counsel for the accused appellants submit that there are two information(s) given by the accused appellant, Govind. The information was given on 13.08.2007 at 04.15 PM for verification of place of occurrence, and another information was given for recovery of knife vide Ex.P/51 on 18.08.2007 at 09.00 PM and knife was recovered at the instance of appellant-Govind vide Ex.P/26 on 19.08.2007 at 09.15 PM, is seriously doubtful. It is submitted that as per statement of Dr. Kailash Meena (PW.2) although eight injuries mentioned in the postmortem report (Ex.P/7) were found upon the body of the deceased, however, only one injury was opined to be serious in nature. Therefore, it cannot be said that the prosecution has proved its case beyond reasonable doubt for committing offence u/s 302/34 of IPC .

Learned counsel for the accused appellants argued that a perusal of entire evidence will reveal that occurrence took place on the way when the appellants were going on motorcycle and deceased, Manoharlal was coming from opposite side in a jeep, and the appellants way laid him and thereafter quarrel took place in between them. Therefore, it is a case in which Section 34 of IPC will not be attracted because as per prosecution in past some quarrel took place some days before the incident in question in between the accused, Govind and deceased, Manoharlal, when deceased did not stop the jeep upon asking by accused, Govind, therefore, the finding of conviction recorded by the trial court under Section 302 / 34 of IPC is also not sustainable in law.

Learned counsel for the appellants invited our attention towards the fact that statements of prosecution witnesses under Section 161 Cr.P.C. were recorded after long delay, therefore, in view of judgment of Hon'ble Apex Court in the case of Harbir Singh Vs. Shishpal & Ors., reported in 2016 (4) CCSC 1792 (SC), judgment of this Court in the case of State of Rajasthan

Vs. Champa Ram @ Champa Lal, reported in 2015 (3) CJ (Cri.) (Raj.) 1271, and in the case of Anil Kumar Vs. State of Rajasthan reported in 2015 (3) Cr.L.R. (Raj.) 1099, the statements of those witnesses cannot be relied upon so as to convict the accused appellants for the alleged offence of murder.

Lastly, learned counsel for the appellants submit that the weapon of offence i.e. knife has not been produced in the court as article, though in the FSL report (Ex.P/16) dated 07.09.2007, human blood of "A" group was found upon the recovered clothes and knife but recovery of knife has not been proved, therefore, on this ground also, the finding of learned trial court for conviction is not sustainable in law. Two eyewitnesses viz. Manohar (PW.23), Devilal (PW.22), named in the FIR, turned hostile and did not support the prosecution case, so also, other witness viz. Gangaram (PW.13) also turned hostile and did not support the prosecution case. Another two witnesses, viz. PW.3- Ambalal and PW.4- Bhanwarlal, were planted by the prosecution subsequently to support the prosecution case. The learned trial court has erred in relying upon the testimony of these witnesses so as to hold appellants guilty but in view of the fact their names were disclosed in the FIR by the complainant, nor their presence was disclosed by the witnesses, Gangaram (PW.13), Devilal (PW.22) and Manoharlal (PW.23), therefore, it is obvious that these two eyewitnesses were planted by the prosecution so as to involve the appellants falsely in this case. He, thus prayed that instant appeal may kindly be allowed and the judgment impugned may kindly be quashed and the appellants be acquitted from the offence.

Per contra, learned Public Prosecutor, vehemently argued that there is no dispute with regard to fact that three witnesses

viz. PW.13- Ganga Ram, PW.22- Devilal and PW.23- Manoharlal, who was said to be eyewitnesses, turned hostile and did not support the prosecution case. But, it is an admitted position of the case that two other witnesses viz. PW.3- Amba Lal and PW.4- Bhanwarlal and PW.9- Bhagwanlal, categorically stated in their statements that in the incident accused appellant, Govind, inflicted injury by knife to the deceased and other two accused persons were present and they participated in the crime. Therefore, it cannot be said that any error has been committed by the trial court in holding the accused appellants guilty for the offence u/s 302/34 of IPC .

Learned Public Prosecutor further argued that it is not necessary to disclose names of all the eyewitnesses in the FIR.

During investigation, it if is found by the investigating officer that there are other eyewitnesses of the case, then, investigating officer can record the statements of those witnesses so as to prove the case of prosecution. Although named eyewitnesses turned hostile, but other three witnesses viz. PW.3- Ambalal and PW.4- Bhanarlal and PW.9 Bhagwanlal, categorically proved the incident and made an allegation that accused appellant, Govind, inflicted injury by knife to the deceased and other two witnesses participated in the crime, therefore, the trial court has rightly arrived at the finding that accused appellants are guilty for committing offence u/s 302/34 of IPC . In view of above arguments, it is submitted that the appeal filed by the appellants may kindly be dismissed.

After hearing the learned counsel for the parties, first of all we are examining the question as to whether offence u/s 302/34 IPC is made out or not.

The witness PW.3- Ambalal gave following statement on oath before the court, which reads thus:

"VERNACULAR MATTER OMITTED"

The witness PW.4- Bhanwarlal, gave following statement, which reads thus:

"VERNACULAR MATTER OMITTED"

Another witness, PW.12- Roopa Meena, was examined during trial, and he gave following statement before the trial court, which reads as under: -

"VERNACULAR MATTER OMITTED"

Learned trial court while considering the statements of these witnesses proceeded hold all the three accused appellants guilty for the offence under Section 302 / 34 of IPC, but upon perusal of the statement of Roopa Meena (PW.12), who is independent witness, would reveal that before present incident, upon asking by the accused appellant, Govind, deceased did not stop his vehicle, therefore, the accused appellant Govind was annoyed with the deceased, therefore, on the date of occurrence while using filthy language, made quarrel with the deceased; and at that time, PW.12 Roopa Meena and PW.9 Bhagwan Lal, raised objection to stop the quarrel and further stated that accused appellant, Govind was having knife in his hand and in the investigation, one knife was recovered as per information given by accused appellant, Govind and as per FSL report dated 07.09.2007 upon the knife, blood group of "A" ground was found.

Upon consideration of entire evidence, it is obvious that before the date of incident, a quarrel took placed in between the accused, Govind and deceased, Manoharlal because he (deceased) did not stop his vehicle when accused, Govind asked him to stop the vehicle. We have considered facts emerges from the evidence that on the date of incident when all the three appellants were coming on motorcycle from opposite side and going towards their house, the deceased was asked to stop the vehicle and thereafter accused appellant, Govind used filthy words and inflicted injury by knife, that knife was recovered as per his information from his house vide Ex.P/26. Therefore, we are of the opinion that the finding of learned trial court for offence u/s 302 with the aid of Section 34 IPC, is erroneous so as to hold accused appellants, namely, Amrit Lal and Raju @ Raj Kumar. There is no evidence of recovery against other appellants except appellant, Govind and there is no other evidence on record to prove motive qua other two accused appellants, Amrit Lal and Raju @ Raj Kumar.

Therefore, we are of the firm opinion that as per evidence on record, the finding of guilt recorded by the learned trial court u/s 302/34 of IPC qua the appellants, Amirit Lal and Raju @ Raj Kumar is not sustainable, more so, it is a case in which participation of these two appellants (Amrit Lal and Raju @ Raj

Kumar) is seriously doubtful and they cannot be held guilty for offence u/s 302/34 of IPC .

We have perused the judgments cited at bar by learned counsel for the appellants and also considered the fact that although names of two eyewitnesses were mentioned in the FIR, however, those witnesses turned hostile. But, their testimony was subsequently corroborated by other witnesses whose statements were recorded after some delay. It is also very important to mention that only one knife was recovered that too from accused appellant Govind. The injuries upon the body of the deceased were said to be caused by a sharp edged weapon, therefore, we are of the opinion that prosecution has proved its case beyond reasonable doubt against appellant-Govind because as per facts in the FIR, earlier some quarrel took place between Govind and Manoharlal and that quarrel as the reason to cause injury by the accused, Govind.

In our opinion, the allegation made against accused appellant, Govind are proved, whereas allegation against appellants No.2 and 3, Amrit Lal and Raju @ Raj Kumar, for their participation has not been proved beyond reasonable doubt. The learned trial court has committed an error while convicting appellants, Amrit Lal and Raju @ Raj Kumar for offence u/s 302/34 of IPC because there is no evidence of motive and there is no evidence that any weapon was recovered as per their information.

Accordingly and in view of above, we are of the opinion that it is a case in which prosecution has failed to prove its case beyond reasonable doubt for offence u/s 302/34 IPC qua appellants, Amrit Lal and Raju @ Raj Kumar, but succeeded to prove the case u/s 302 IPC simpliciter against accused appellant, Govind. Therefore, the judgment impugned deserves to be modified.

Consequently, this appeal is partly allowed. The judgment impugned dated 26th of September, 2008 passed by learned Addl.

Sessions Judge (FT) No.3, Udaipur, Camp Salumber, in Session Case No.87/2007 is hereby modified and the appellant, Govind is hereby convicted for offence u/s 302 of IPC and the sentence awarded by the trial court for life imprisonment with fine of Rs.1000/- with default stipulation to further undergo three months' imprisonment, is hereby maintained.

The accused appellants, namely, Amrit Lal and Raju @ Raj Kumar, are hereby acquitted from the charges under Section 302 / 34 IPC while giving them benefit of doubt and the judgment impugned, qua them, is hereby quashed and set aside. Appellants, Amrit Lal and Raju @ Raj Kumar are on bail, their bail bonds are hereby discharged.

Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants, Amrit Lal and Raju @ Raj Kumar, are directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, 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 appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.