Janki Lal and Others vs State of Rajasthan

G.K. Sharma, J.—This appeal has been preferred against the judgment dated 31-3-1987 passed by the Additional Sessions Judge, Baran by which, the appellants were convicted and sentenced as under:

Janki Lal-Under Section 302, IPC and all others u/s 302/149, IPC and sentenced to life imprisonment and a fine of Rs. 500/- and in default of payment of fine three months rigorous imprisonment.

Heera Lal-Under Section 307, IPC and all others u/s 307/149, IPC and sentenced to ten years rigorous imprisonment and a fine of Rs. 300/- in default of payment of fine one month rigorous imprisonment. All the accused appellants u/s 148, IPC sentenced to one year RI; All the sentences were ordered to run concurrently.

Banshi Lal (PW 13) lodged a report on 22-10-1985 at 4 pm. at Police Station, Chhipa Badod alleging that in the day at 1 p.m. he and all the village people assembled at the Chabutra of Hanumanji for Pooja on the occasion of Vijay Dashmi. Previously some quarrel had taken place between him and Kishan Lal and his two sons and on account of that enmity Mathura Lal S/o Kishan Lal and Sri Lal S/o Manohar Lal started abusing them, He asked them not to abuse. Then Mathuralal, Heeralal, Srilal, Kanbaiyalal, Kishan Lal, Ram Ratan. Banshi, Ram Singh and Ram Dayal uttered the words while abusing that the should be finished today Heera Lal inflicted ballam blow on his buttock. Heera again inflicted another ballam blow on the left hand Ram Singh and Ram Dayal inflicted Lathi blows on his waist. Kanhaiya Lal inflicted Lathi blow on his right hand. His son Murli came to rescue him but Sri Lal inflicted Gandasi blow on his head, Heera Lal inflicted ballam blow on the left side of the body and Ram Ratan inflicted Gandasi blow on waist and right ribs. Thereafter, Sri Lal S/o Harlal Vyad also tried to rescue them but Banshi Lal and Sri La) gave Gandashi blow to him. On account of this beating all the three fell down Kedar S/o Prabhu Lal brought them to Chhipa Barod in a tractor. This incident was witnessed by Banshi S/o Onkar Banshi S/o Laxman and Nathu S/o Deo Lal. On this report a case under Sections 147, 148, 307, 323 and 149, IPC was registered. Murli later on died and the case was then converted into Section 302, IPC.

Dr. Laxman Singh (PW 6) examined the injuries of Sri Lal, Banshi Lal Kedar, Kajod and Murli. Dr. Deo Dutt Sharma (PW 15) conducted the post mortem on the dead body of Murli on 23-0 1985. The post mortem report is Ex P 57. According to this doctor be died due to haemorrhage and shock as a result of injury to right lung. During investigation the Police arrested the accused persons and recovered blood-stained clothes and weapons. The recovered articles were sent to Forensic Science Laboratory for examination and its report is Ex P 63 and Ex. P 64. After completing the usual investigation the Police submitted chellan against 14 accused persons under Sections 302, 307, 147, 148 & 149, IPC. The trial court framed charges against all the accused-persons under Sections 147, 148, 302, 302/149, 307 and 307/139 IPC. All the accused-persons have denied the charges and claimed trial.

The prosecution has examined 18 witnesses to establish its case. The version of accused is mere denial. No defence evidence has been laid by the accused persons. The trial Court found the appellant guilty of the charges and sentenced them as mentioned above.

The learned Counsel for the appellant argued that the learned trial Court has committed error in holding the accused appellant guilty. All the accused persons along with the villagers were present at the place due to festival of Dashers. This is an admitted position that the people bad collected on account of the festival armed with weapons. So occurrence took place suddenly without premeditation and no case is made out u/s 148, IPC. There is no evidence to prove that the accused-persons had common object to commit murder of Murli, Banshi Lal who is injured and who has lodged me report has named only 9 persons in the FIR and he did not mention the names Janki Lal, Dhanna Lal. Sheo Lal, Trilok Chand and Chanda alias Ram Chandra. It was also argued that the witnesses have changed their version intentionally and deliberately in the Court statement. The witnesses have also changed the sequence of beating. The witnesses have denied to have given certain portion of their statements in the Police. The oral evidence is not corroborated by medical evidence as after as Murli is concerned. The trial Court has committed error in believing the prosecution witnesses. It was further a argued that the conviction has been passed on the dying declaration of Murli which is Ex. P 8 The trial Court has placed much reliance on the dying declaration. The argument is that this dying declaration is not worth reliable and should not be believed.

The learned Public Prosecutor argued that the incident bad taken place at 2 p.m. on 22-10-1985 and the report was lodged at 4 p.m. So there was immediate report. It was argued that in FIR only 9 accused persons have been named but this FIR cannot be treated as conclusive and Banshi who was injured might have forgotten to name remaining 5 persons Regarding dying declaration it was argued that this dying declaration was recorded by Dr. Laxman Singh (PW 6) in presence of Madan Lal (PW 5) Gulab Chand (PW 1), Banshi (PW 9) and Iqbal Ahmed (PW 18), ASI. All these witnesses prove that Murli gave this dying declaration and the learned trial Court has not committed error in placing reliance of this dying declaration. Regarding contradictions are merits of the prosecution witnesses it was argued that the contradictions minor one and on such course their statements cannot be discarded. The accused persons formed an unlawful assembly and in furtherance of their common object they committed this offence. They were armed with deadly weapons hence, they were correctly found guilty.

We have considered the arguments at length and perused the statements of the prosecution witnesses minutely. Banshi Lal (PW 13) lodged the FIR Ex. P 17. In this FIR he has mentioned the names of 9 accused persons. He did not mentioned the names of Janki Lal, Danna Lal, Sheo Lal, Trilok Chand and Chandu. These 5 accused-persons were impleaded in the statements of the prosecution witnesses Banshi Lal gave a detailed report at the Police Station. In the report he has specifically mentioned about the individual act of the accused persons. Who inflicted injury to whom and with what type of weapon has been clearly mentioned in the report. It means that Banshi Lal was in full senses when this report was lodged. We see no reason that the person who gave such a detailed FIR, in which he named 9 accused persons and also mentioned the individual act of these persons will fail to mention the names of other persons. It means that these 5 persons were added in the Police statements recorded u/s 161, Cr.P.C. Even no specific overt-act has been assigned to these 5 accused-persons whose names were not mentioned in the FIR This shows that they have been falsely implicated in this incident. Janki Lal has been found guilty u/s 302, IPC while others have been found guilty u/s 302/149, IPC. The according to trial Court Janki Lal is the main accused who gave fatal blows to deceased Murli. We fail to understand that Banshi Lal would forget the names of Janki Lal who is the main assailant. Janki Lal is the person who inflicted fatal injuries to Murli which resulted in his death but he will not be named while the FIR was lodged. This clearly shows that Janki Lal has been impleaded later on, and a case has been concocted against him. Similarly, the remaining 4 persons whose names have not been mentioned in the FIR have been falsely implicated by the witnesses in their statements u/s 161, Cr.P.C.

The dying declaration Ex. P 8 is an important document, on which much stress has been laid by both the learned Counsel. We have perused the dying declaration Ex. P 8. This dying declaration was recorded by Dr. Laxman Singh PW 6. The Doctor has proved this document. In this statement Murli has stated that he was inflicted injuries by ballam by Heera. Shri Lal, Ratan and Janki Lal. It means that these 4 persons inflicted ballam injuries to Murli. So there are four injuries on the body of Murli by ballam. But when we see the medical report Ex. P 4, we find that there are only two incised wounds and one lacerated wound. So this statement is not corroborated by the injury report Ex. P 4. This shows that the statement of Murli is not correct because the names of Heera, Shri Lal and Ratan had been mentioned in the FIR but the name of Janki Lal was not mentioned in the FIR. Mentioning the name of Janki Lal in this dying declaration Ex. P 8 also indicates that be has been falsely implicated in this case. Janki Lal who inflicted ballam blow according to Murli, Banshi Lal must have noticed Janki Lal''s presence. Why his name was not mentioned? This indicates that Janki Lal has been falsely implicated in this case and has been found wrongly guilty u/s 302, ICP simpliciter. We fail to understand how Janki Lal was found guilty by she learned trial Judge.

In the dying declaration the names of the persons who were present when it was recorded, have been mentioned. Banshi S/o Onkar (PW 9 was present when the dying-declaration Ex. P 8 was written, but this witness Banshi has not stated in his statement that in his presence Murli gave the dying declaration Ex. P 8. This statement was recorded in the hospital. Other persons were also injured and their injuries were medically examined in the hospital but non of these injured has stated that dying declaration of Murli was recorded by Dr. Laxman Singh. When they were present in the hospital this dying declaration must have been recorded in their presence. Dr Laxman Singh has stated that he recorded this dying declaration at the request of Iqbal Ahmed, ASI. Murli was in a fit condition to give his statement and when his statement was recorded Sarpanch Manna Lal Banshi S/o Onkar, Gulab Chand S/o Harlal and Iqbal Ahmad were present The time has been mentioned in this dying declaration Ex. P 8 and according to this statement it was recorded at 7.30 p.m. on 22-10-1985. Banshi Lal PW 13 in his statement has stated that they came in the tractor to Chhipa Barod, Police Station and lodged the report and then they went to hospital. Murli''s injuries were also examined along with his own injuries. At that time the condition of Murli was very serious and at the end of the day they look Murli in the car to Kota It means that before setting the day Murli was taken to Kota hospital. The statement was recorded at 7.00 p.m. In the month of October the sun sets nearly about 6 pm. Murli was taken in the car to Kota. He could not be present in the hospital at 7.30 p.m. when the statement was recorded by the doctor. Banshi Lal PW 13 has not stated that the dying declaration of Murli wag recorded by the doctor. Banshi Lal was the informant and he accompanied Murli to Police Station as well as hospital. If the dying declaration Ex. P 8 was recorded in the hospital at 7.30 pm., then Banshi Lal PW 13 should have been present there. Another person Manna Lal PW 5 was present when Ex. P 8 was recorded. He has stated that as the condition of Murli was serious he was taken to Kota. He also accompanied him to Kota and after reaching Kota after 3-4 hours Murli died. He has not stated in his statement-in-chief that dying-declaration was recorded in his presence. In the cross-examination this question was asked and he has stated that the doctor recorded the statement of Murli. This witness has signed at portions C to D of Ex. P 8 but his signatures were not proved by him when he was in the witness box. All these discussions indicate that the dying declaration Ex. P 8 is a false document. It was not recorded as stated by Dr. Laxman Singh PW 6 or as stated by the prosecution witnesses. The learned trial Court has not understood properly this dying declaration and it failed to arrive at the correct conclusion about the genuineness of this document. We are of this opinion that Murli was not in a position to give any dying-declaration and this dying declaration could not be recorded by the doctor at 7.30 p.m. because Murli had already left that place prior to sun set So this dying declaration Ex. P 8 is a concocted document and the learned trial Court has committed error in placing reliance on this document and convicting the accused persons on this basis.

On minute scrutiny of the statements of the prosecution witnesses given in the court and the statements recorded u/s 161, Cr.P.C. we find that their are number of material contradictions in them. If we read the statement of the witnesses recorded u/s 16 Cr.P.C. we find that none of the witnesses has stated that Murli was beaten, but in the Court a statement they have stated like this. Banshi Lal PW 1 stated that Murli was inflicted barchhi below. His police statement was recorded on 25-10 85 but in this statement it is not stated that barchhi blow was given to Murli. Shri Lal PW 3 has stated that barchhi blow was inflicted by Janki Lal but in the Police statement Ex. D 2, he has not stated as such. He being relative to Banshi has given a false statement and tried to support the prosecution story, Kedar PW 4 stated that Janki gave gandasi blow on the chest of Murli. This is difference in the statements of other witnesses who have stated about barchhi blow, while this witness says about gandasi blow. Even in the Police Statement Ex. D 3 he has not stated as such. Banshi Lal PW 9 also stated that Janki inflicted barchhi blow to Murli but in the Police statement Ex D 5 he has not stated so. Banshi Lal PW 13 who is the inforcement of FIR Ex. P 17 has stated that Janki Lal inflicted barchhi blow, but has denied to have given the portions A to B in Ex. D 6 He has stated that in the report Ex. P 17 he had named 14 persons. This is a false statement. If he bad mentioned the names of 14 persons the SHO would have written those names. Why he will not write the names of 5 accused persons. Then in the report Ex. P 17 about the portions marked as E to F this witness has stated that this portion is incorrect. In portion C to D of Ex. P 17 be has stated that his son Murli came to rescue him and then he was also beaten. Thereafter Srilal came to rescue him and he was also beaten So the sequence was that first of all Banshi Lal was beaten and then Murli was beaten and thereafter Srilal was inflicted injuries. Banshilal has denied to have given this statement in the report Ex. P 17. How to believe such person. Similarly, Kajod PW 16 has stated that Janki Lal inflicted ballam blow to Murli, but in the Police statement Ex. D 7 he has not stated as such. So what we feel is that all these witnesses who were examined by the Police u/s 161 C PC have not stated a single word about Janki Lal. They have not stated that any ballam blow was inflicted to Murli. So they have developed their statements in order to implicate the accused-persons by giving false statements in the Court.

This is also an important aspect that the sequence of beating as shown in the FIR Ex. P 17 las also been totally changed by the witnesses in their Court statements. In the FIR Ex. P 17 the case was that the accused persons stated beating Banshi Lal with lathis and ballam. Nine persons inflicted blows by lathis & ballam to Banshi Lal & thereafter his son Murli intervened & tried to rescue him & at that time Murli was also given gandasi blow by Srilal. In the FIR Srilal gave gandasi blow but the witnesses have stated in their statement that barchhi was used Gandasi and barchhi are two different weapons. So the sequence of beating has been changed by the witnesses. This shows that the witnesses are unreliable one. Why this sequence was changed is clear from this fact that the prosecution wanted to implicate Janki Lal. According to prosecution witnesses Janki Lal inflicted barchhi blow to Murli and Murli was beaten first of all. To prove the case u/s 302 that Janki Lal had intention to commit murder of Murli, the witnesses have changed the sequence and stated that first of all Murli was beaten by Janki Lal. Otherwise, if the FIR revision is taken as correct, then Banshi Lal was beaten first and Murli intervened in the beating and then he was inflicted injuries. The case of the prosecution is that accused persons had common object of murdering Murli and with that object they formed an unlawful assembly and in furtherance of that common object Janki Lal inflicted ballam injury to Murli. But this is falsified by this fact that first of all Banshi Lal was beaten, So if accused had any common object, it was beating to Banshi Lal, It can be assumed that the accused persons had common intention to commit murder of Banshi Lal but it cannot be said that the accused persons had common object of killing Murli. Murli was not in the picture when the occurrence took place. Murli arrived at the spot when Banshi Lal was beaten by accused persons. Murli intervened to rescue his father and in that process he was also inflicted some injuries. So it is incorrect to say that the accused persons had any common object and that common object was to commit murder of Murli. This is the reason that in order to prove their common object because Murli bad died subsequently and prosecution in order to get conviction of the accused person changed the story and the witnesses stated that the common object of the accused persons was to commit murder of Murli. Had it been in the evidence that Murli intervened in the quarrel and during that intervention he was inflicted barchhi blow, then a case u/s 302 IPC would not have been established. The accused persons had no intention or common object before start the beating to commit murder of Murli. Therefore, the learned trial Court has also committed error in coming to this conclusion that the accused persons had formed an unlawful assembly and their common object was to commit murder of Murli. So no case is made out of unlawful assembly. Actually, the villagers including the accused persons had assembled at the Chabutra of Hanumanji on account of Dashera festival At that moment some dispute took place between both the parties on account of previous enmity and in that dispute on a sudden fight this incident had taken place. The accused persons had no pre-plan and non premeditation for inflicting any blow to Banshi Lal and Murli on other injured persons. They collected at the spot in a usual manner to perform the Pooja on account of Dashera festival. So in absence of any preplan it cannot be inferred that the accused persons had any common object & in furtherance of that common object they formed an unlawful assembly. But the prosecution tried to prove this fact by creating false evidence, by asking the prosecution witnesses to change the sequence of beating and also changing the statements in the Court from the statements in the Police u/s 161 Cr.P.C. This aspect has not been considered by the learned trial Court. He has failed to appreciate the case in a right perspective manner. He has wrongly assessed the statements of the prosecution "witnesses Even in the prosecution witnesses we find that there is no specific part played by Kanhaiya Lal accused, Then no specific part has been assigned by the witnesses of Kishan Lal, Mathura Lal, Dhanna Lal S/o Champa Lal, Ram Singh, Sheo Lal, Ram Dayal, Trilok Chand and Chandu@Ram Chandra. To oblige the prosecution and the complainant party these witnesses stated against some accused persons. This shows that the witnesses are liar The witnesses unreliable and unbelievable and it would be very unsafe to punish a person in the such a heinous on the testimony of such a liar and false witnesses. The story has been completely changed by the witnesses.

In view of our above discussion we are of this opinion that the learned trial Court has totally failed to appreciate the evidence and has not correctly assessed the testimony of the prosecution witnesses. He did not even understand properly the circumstances by which the sequence of the beating was changed and why the names of some of the accused-persons specially Janki Lal, has been changed in the FIR. We are unable to maintain the conviction of the appellants as held by the trial Court.

As a result, the appeal is accepted. The judgment and conviction of the trial Court are set aside. The accused-appellants are not found guilty of the offences as held by the learned Addl. Secessions Judge, Baran in the judgment dated 31-3-1988. All the appellants are, therefore, acquitted from all the offences. The appellants Janki Lal, Ram Ratan. Heera Lal and Trilok are in jail. They be released forthwith, if not required in any other case. The other appellants Kanhaiya Lal, Kishan Lal, Mathura Lal, Dhanna Lal, Banshi Lal, Ram Singh, Sheo Lal, Ram Dayal and Chandu @ Ram Chandra are not on bail. Their bail bonds are cancelled and the deed not surrender.

By typing mistake, the name of Trilok Chandra has bean mentioned in line 3 at page 14 of the judgment dated 21-9-1988, as in jail. He is on bail, while Srilal is in jail. So instead of name of Trilok Chandra, it should be read Srilal. Trilok Chandra is on bail, so on account of his acquittal, his bail bonds are cancelled and he need not surrender.

Additional Registrar (Judicial) is directed to inform the Central Jail, Jaipur, that Srilal who is in jail, has been acquitted and he should be released forth with, if not required in any other case.

Page 14 of the judgment dated 21-9-1988 as corrected, is being placed on record.