Jodhraj and Others vs State of Rajasthan and Others

Kanwaljit Singh Ahluwalia, J.—1. The case of the prosecution is that on 22.5.2005 in the night at 9:30 PM, in the revenue estate of village Kadaiyavan, fourteen persons namely Jodhraj S/o. Mathura Lal, Hemraj S/o. Birdhi Lal, Bhanwar Lal S/o. Mathura Lal, Mathura Lal S/o. Baldev, Dwarka Lal S/o. Ram Narayan, Dev Kishan S/o. Ram Narayan, Prakash @ Om Prakash S/o. Birdhi Lal, Naval @ Naval Kishore S/o. Birdhi Lal, Badri Lal S/o. Kanwar Lal, Ram Prasad S/o. Narayan @ Ram Narayan, Prabhu Lal S/o. Birdhi Lal, Jagdish Prasad S/o. Mathura Lal, Ram Dayal S/o. Ram Narayan and Pooran Mal S/o. Ram Narayan, constituted unlawful assembly and caused injuries to Hariram, as a result of which, in the intervening night of 22nd May and 23rd May of 2005, Hariram died.

A perusal of the injury report (Exhibit-P/16) reveals that Hariram was examined on 22.5.2005 at 10:45 PM and in the injury report (Exhibit-P/16) prepared by Dr. Rajeev Soni (P.W.14), following three injuries were noticed:--

"(i) Abrasion 1cm x 1cm, right side of forehead, simple, blunt.

(ii) Incised wound, 7cm x 1cm, muscle deep, right side of neck, obliquely, simple, sharp.

(iii) Incised wound, 20cm x 7cm, intestine coming out, anterior on abdomen, longitudinal, grievous and dangerous to life, sharp."

Hariram died on the intervening night of 22nd May and 23rd May of 2005, therefore, on the very next morning i.e. 23.5.2005 at 8:15 AM, vide Post Mortem Report (Exhibit-P/17), Dr. Rajeev Soni (P.W.14) had conducted post mortem. In the Post Mortem Report, above three injuries noticed in the injury report (Exhibit-P/16) have also been mentioned and in the Post Mortem Report (Exhibit-P/17) also site and dimensions noted are the same. A perusal of the injuries, reveals that injury No. 1 is abrasion measuring 1cm x 1cm, injury No. 2 is incised injury measuring 7cm x 1cm on the neck. The said injury was declared simple in nature. As per opinion on the Dr. Rajeev Soni (P.W.14) cause of death was shock due to excessive hemorrhage from abdominal wound. Thus, injury No. 3 had proved fatal.

Except, the deceased Hariram, nobody else received injuries in the occurrence. For the above three injuries, investigating agency had sent fourteen persons namely Jodhraj, Hemraj, Bhanwar Lal, Mathura Lal, Dwarka Lal, Dev Kishan, Prakash @ Om Prakash, Naval @ Naval Kishore, Badri Lal, Ram Prasad, Prabhu Lal, Jagdish Prasad, Ram Dayal and Pooran Mal, for the trial. One of the accused Mathura Lal died during the trial. The court of Additional Sessions Judge, Chhabra, District Baran vide impugned judgment dated 11.5.2012 acquitted Hemraj, Dev Kishan, Prakash @ Om Prakash, Naval @ Naval Kishore, Badri Lal, Ram Prasad, Prabhu Lal and Ram Dayal by extending benefit of doubt. However, the court convicted Jodhraj, Bhanwar Lal, Dwarka Lal, Jagdish Prasad, Pooran Mal for the offences under Sections 148, 302/149 and 379 IPC. Having convicted the abovementioned appellants for the aforesaid offences, the trial court vide a separate order of even date sentenced them as under:--

"U/s. 148 IPC- to undergo two years R.I. and to pay a fine of Rs. 500/- each, in default of payment of fine to further undergo additional ten days S.I. each.

U/s. 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs. 10,000/- each, in default of payment of fine to further undergo additional six months R.I. each.

U/s. 379 IPC- to undergo two years R.I. and to pay a fine of Rs. 500/- each, in default of payment of fine to further undergo additional ten days S.I. each."

Aggrieved against their conviction and sentence, Jodhraj, Bhanwar Lal and Jagdish all three brothers have preferred D.B. Criminal Appeal No. 549/2012. Dwarka Lal and his brother Pooran Mal have instituted D.B. Criminal Appeal No. 435/2012. Son of deceased Ram Gopal Nagar to assail the acquittal of Hemraj, Devkishan, Prakash @ Om Prakash, Naval @ Naval Kishore, Badri Lal, Ram Prasad, Prabhhu Lal and Ram Dayal, has preferred D.B. Criminal Appeal No. 824/2012. Since all the three appeals are directed against the same judgment, all the three appeals shall be decided together.

The sole question raised before this Court is whether the prosecution was justified to implicate fourteen persons for three injuries out of which one injury was abrasion and could be result of fall. Hence, this Court considering that the dying declaration (Exhibit-P/13) recorded by S.I. Riyasat Ali (P.W.12) and testimony of eyewitnesses namely, Ram Gopal (P.W.1), Om Prakash (P.W.2), Ram Dayal (P.W.3) and Nanhe Miya (P.W.4) has to opine whether for inflating number of accused, the entire prosecution case is to be thrown or by noticing that maxim falsus uno falsus omnibus is not available to Indian courts it has to sift grain from the chaff.

The prosecution case for the first time emerged in the statement made by Hariram son of Kashiram caste Nagar Dhakad, aged 70 years, resident of Kadaiyavan. Hariram made the statement before S.I. Riyasat Ali (P.W.12) on 22.5.2005 at 10:30 PM. The said statement recorded by SI when translated into English reads as under:--

"Today on 22.5.2005 in the night at 9:30 PM, from village I was going to my house. Near Mosque, Jodhraj S/o. Mathura Lal, Bhanwar Lal S/o. Mathura Lal, Jagdish S/o. Mathura Lal, Dwarka Lal S/o. Ram Narayan, Puran S/o. Ram Narayan, Dev Kishan S/o. Ram Narayan, Mathura Lal S/o. Baldev, Ram Prasad S/o. Ram Narayan, Hemraj, Prakash, Prabhu, Naval, sons of Birdhi Lal, Akwan Dhakdon and Badri Lal Mali resident of Kadaiyavan, encircled me. Jodhraj caused knife blow on my neck. Dwarki and Jagdish gave a knife blow in my abdomen due to which my intestines protruded out. The above said persons with an intention to kill, gave beating to me and they also snatched and took away my gun. The above said occurrence was seen by Ram Dayal Dhakad and Nanhe Musalman and my son Om Prakash.

LTI Hariram.

Note: Injured due to the injuries received was unable to append signatures."

The statement of Hariram recorded by Riyasat Ali (P.W.12), after death of Hariram has been termed as dying declaration (Exhibit-P/13). It is to be noted that the said statement is not attested by any doctor. Riyasat Ali (P.W.12) has also not obtained any opinion from the doctor regarding competence and fitness of Hariram to make statement. In the last line of cross-examination of S.I. Riyasat Ali (P.W.12) has stated that he never entered a suspicion that deceased will die and therefore, he had not sought the presence of the Magistrate for recording dying declaration. It will be appropriate to reproduce the last line of cross-examination of Riyasat Ali (P.W.12) as under:--

Injury No. 3, which has been declared as fatal injury, in the dying declaration is attributed to two persons namely Dwarka Lal and Jagdish. In the present case, the prosecution in all had examined twenty-seven witnesses and has produced and proved on record documents Exhibit-P/1 to Exhibit-P/43.

Nanhe Miya (P.W.4), an independent eyewitness of the occurrence has turned hostile to the prosecution and has not supported its case. Nanhe has stated in the court that on 22.5.2005 at about 9:15 PM, he was in Mosque and was offering Namaj, there he heard noise but he could not see the persons who had participated in the occurrence.

Ram Gopal (P.W.1) a son of the deceased Hariram, has not been named as an eyewitness in the statement (Exhibit-P/13) made by Hariram. In cross-examination this witness also stated that he had not witnessed the occurrence but had made the statement as the same was told to him by his father.

Thus, the case of the prosecution primarily rests on the testimony of Om Prakash (P.W.2) and Ram Dayal (P.W.3), besides dying declaration (Exhibit-P/13) and oral dying declaration made by deceased to his son Ram Gopal (P.W.1).

Om Prakash (P.W.2) in the court stated that they owned 90 bighas of land and the said land was looked after by his father Hariram. He used to stay with his father. This witness has studied upto IXth Class. On the day of occurrence i.e. on 22.5.2005 at about 9:30 PM, he was present in his house and his father had gone to village along with 12 bore gun. A day before the occurrence, his father had a quarrel with Jodhraj and Jagdish. Jodhraj and Jagdish had given threat to his father to finish him. Therefore, he had taken his gun along with him. Regarding the incident which had taken place a day before the occurrence, his brother Ram Dayal (P.W.3) had lodged the report. On the night of occurrence, his father was returning to house. His brother Ram Dayal called him from near the Mosque. This witness went running to the spot. This witness saw that all the accused who are present in the court except Ram Dayal, who is not present in the court, encircled his father. All accused were armed with weapons. Bhanwar Lal was armed with knife, Pooran was armed with knife, Jagdish was also armed with knife. Jagdish gave a knife blow in the abdomen of his father. Jodhraj gave a knife blow on the neck of his father. Other accused gave beating to his father with fist blows. Gun of father was snatched by Pooran. Pooran after showing the gun had put them under fear.

Ram Dayal (P.W.3) stated that the deceased Hariram was his father. This witness was born from the loins of Hariram, but he was given in adoption to his uncle Narayan Lal. On the day of occurrence, his father was returning from village. When his father reached near mosque, Ram Prasad, Mothpuria, Badri Lal Mali took his father in their grip. Mathura Lal and his sons namely Bhanwar Lal, Jodhraj, Jagdish and sons of Narayan namely Puran, Dev Kishan, Dwarka Lal and sons of Birdhi Lal namely Prakash, Naval, Hemraj, Prabhu Lal, all encircled his father. Jodhraj gave injury to his father on the neck. Bhanwar Lal and Pooran Mal were armed with knife, Jagdish and Dwarka Lal were armed with knife. Jagdish, Bhanwar Lal and Dwarka Lal gave injury in abdomen of his father. Other accused also caused fist blows.

However, Ram Dayal (P.W.3) very categorically admitted in cross-examination that he was not caused any injury by the accused.

We need not refer to the testimony of other witnesses. Suffice it say that accused in the statement under Section 313 Cr.P.C. have denied the occurrence. They have examined Ram Dayal (D.W.1) in defence.

Ram Dayal (D.W.1) accused has stated in the court that he had not participated in the occurrence and has been falsely implicated.

Heard the learned counsel for the parties.

Mr. Amarjit Singh Narang appearing for the appellants Jodhraj, Bhanwar Lal and Jagdish Prasad, Mr. Govind Choudhary appearing for the appellants Dwarka Lal and Pooran Mal have assailed the dying declaration (Exhibit-P/13). It is contended by the learned counsel for the appellants that dying declaration (Exhibit-P/13) is not witnessed by any doctor. It is not attested by any doctor and no opinion was sought from the doctor regarding fitness of Hariram to make statement. It is stated that as per injury report (Exhibit-P/16), intestines of Hariram were protruding out, hence, it is to be assumed that his health was precarious and he could not make the dying declaration. Thus, it is contended that dying declaration along with oral dying declaration made by Hariram to his son Om Prakash (P.W.2) should be excluded from the consideration.

As reproduced earlier, S.I. Riyasat Ali (P.W.12) stated that when he recorded the statement of Hariram, he never entertained suspicion that Hari Ram will die and therefore, his dying declaration is required to be recorded by the Magistrate. It is true that Riyasat Ali (P.W.12) has admitted that before recording dying declaration (Exhibit-P/13), he has not taken any opinion from the doctor regarding fitness of Hariram. Riyasat Ali (P.W.12)explained that when he recorded the statement (Exhibit-P/13), Hariram was sitting on bed and he was talking with everybody. However, Riyasat Ali (P.W.12) admitted that he has not noted this important feature under the heading ''action taken by the police'' below the FIR. Thus, the fact that Hariram was talking has not been recorded in any document. This assertion was made by the witness for the first time in the court. We will reproduce the following lines from the cross-examination of Riyasat Ali (P.W.12) as under:--

Considering that no opinion was sought from the doctor regarding the fitness of Hariram, especially when his intestines were protruding out, and he died within 6-8 hours of the occurrence, without doubting the dying declaration (Exhibit-P/13), we are of the view that it is not safe to rely upon the same. Thus, we exclude the evidence of dying declaration from our consideration by treading on a very cautious path.

We have already reproduced injuries on the person of the deceased Hariram. Injury No. 1 is an abrasion, which in our view can be result of fall. All the witnesses categorically have attributed simple injury on neck of Hariram to accused appellant Jodhraj. So far injury No. 3, which proved to be fatal, is concerned, Om Prakash (P.W.2) who is an eyewitness of the occurrence has attributed the same to Jagdish. It is also case of the prosecution that a day before the occurrence, Jodhraj and Jagdish had threatened Hariram and they told him that he will be liquidated. Om Prakash (P.W.2) categorically stated as under:--

Ram Dayal (P.W.3) has attributed injury No. 3 to three persons namely Jagdish, Bhanwar Lal and Dwarka Lal. We find that to this extent, the statement made by Ram Dayal (P.W.3) is an exaggeration. We intend to place implicit reliance on testimony of Om Prakash (P.W.2) as he has attributed injury No. 2 on the neck of deceased Hariram to Jodhraj and injury No. 3 to Jagdish. The role assigned to two appellants also find corroboration from the fact that a day before the occurrence, they had fight with Hariram and had extended a threat. Therefore, we are of the firm view that in the occurrence, only two injuries were caused and they are attributed to Jodhraj and Jagdish and they only had participated in the occurrence. The witnesses later due to consultations and deliberations have inflated the number of accused. We have already excluded dying declaration (Exhibit-P/13) from consideration. Our inference that the witnesses Om Prakash (P.W.2) and Ram Dayal (P.W.3) have widen the net, and over implicated the accused, is also borne from the fact that their statements under Section 161 Cr.P.C. were recorded on 10.6.2005. Thus, there is delay of more than eighteen days to record the statement of the witnesses under Section 161 Cr.P.C. by the police. Though, these statements have been termed as supplementary statements, we find that their statement initially recorded under Section 161 Cr.P.C. are not on record.

Investigating Officer Pradhuman Singh (P.W.18) in the court has admitted that even though he had recorded the statement of Ram Dayal (P.W.3) on 23.5.2005, but the same is not part of the case file. In cross-examination, this witness admitted as under:--

Therefore, delay in recording of statement under Section 161 Cr.P.C. of Om Prakash (P.W.2) and Ramdayal (P.W.3), leave us with no doubt that both the witnesses took benefit of delay and for the three injuries on the person of deceased Hariram out of which one was abrasion, the witnesses had resorted to implicate fourteen accused. Thus, this blemish on the part of the witnesses, call upon us to sift grain from the chaff.

Thus, in these circumstances, we only uphold the conviction of appellant Jagdish for offence under Section 302 IPC and accused appellant Jodhraj for offence under Section 302/34 IPC. As a matter of abundant caution, we extend benefit of doubt to appellant Bhanwar Lal, Dwarka Lal, and Pooran Mal.

Now, we examine the allegation of theft of gun and conviction of the appellants for offence under Section 379 IPC.

Mr. Rohan Jain, counsel for the son of the deceased has laid much emphasis on the fact that Pooran Mal accused, suffered a disclosure statement (Exhibit-P/42) to the effect that he has kept concealed double barrel gun of Hariram along with belt in a pit in his field. It is contended that in pursuance of disclosure statement (Exhibit-P/42), Pooran Mal vide memo Exhibit-P/37 in presence of Jagdish (P.W.5) son of Gowardhan Lal and Shri Lal (P.W.24) got recovered double barrel gun from his field. We find that the disclosure statement (Exhibit-P/42) is not attested by any witness. The same has only been prepared by the Investigating Officer.

A Division Bench of this Court of which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member relying upon the judgment of the Hon''ble Apex Court in Harjit Singh v. State of Punjab, , A.I.R. 2002 Supreme Court 3040, held in the case of Rameshwar and Dinesh @ Pillu v. State of Rajasthan, D.B. Criminal Appeal No. 158/2010, decided on 10.11.2014, as under:--

"Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex. P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh & Ors. v. State of Punjab , AIR 2002 Supreme Court 3040 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses."

Even otherwise, we find that Shri Lal (P.W.24) in the court has stated that memo regarding recovery of gun contain his signatures and the said memo was prepared at police station. We will reproduce the following lines from examination-in-chief from Shri Lal (P.W.24) as under:--

Jagdish (P.W.5) who was also numbered as P.W.4 in his statement recorded on 30.3.2010 has admitted that gun was recovered in his presence from the field at the instance of accused Pooran Mal, but in view of the contradictory statement made by Shri Lal (P.W.24), and the fact that the disclosure statement is not attested by any independent witness, we are not inclined to rely upon the recovery of gun at the instance of appellant Pooran Mal. Therefore, to us, recovery of gun is a padding and hence, all the accused appellants are acquitted of offence under Section 379 IPC.

Consequently, D.B. Criminal Appeal No. 549/2012 is dismissed qua Jodhraj and Jagdish Prasad, the appellant Nos. 1 and 3. However, D.B. Criminal Appeal No. 549/2012 is accepted qua Bhanwar Lal, appellant No. 2 and he is acquitted by extending benefit of doubt.

Similarly, D.B. Criminal Appeal No. 435/2012 preferred by Dwarka Lal and his brother Pooran Mal is accepted and they are also acquitted of all the charges by extending benefit of doubt. The judgment and conviction of sentence qua Bhanwar Lal, Dwarka Lal and Pooran Mal is set aside.

We also dismiss D.B. Criminal Appeal No. 824/2012 by upholding the acquittal of respondents Hemraj, Devkishan, Prakash @ Om Prakash, Naval @ Naval Kishore, Badri Lal, Ram Prasad, Prabhu Lal and Ram Dayal, recorded by the trial court by holding that the acquitted accused along with Bhanwar Lal, Dwarka Lal and Pooran Mal were victims of over implications at the instance of Om Prakash (P.W.2) and Ram Dayal (P.W.3).