Bhojraj Singh vs State of Rajasthan

Jasraj Chopra, J.—This is appeal has been filed against the judgment of the learned Additional Sessions Judge, Barmer dated 28-4-1988 whereby the learned Additional Sessions Judge has held the accused-appellant Bhojraj Singh guilty of the u/s 304 Part If, IPC and Section 447 IPC and has sentenced him to 10 years rigorous imprisonment and to pay a fine of Rs. 10,000/- and in default to undergo 2 years rigorous imprisonment on the first court and to one month''s rigorous imprisonment together with a fine of Rs. 1,000/- and in default to undergo 15 days rigorous imprisonment on the second count. It was further ordered that in case, the fine is recovered, its 75%of the amount will be given to the wife and children of deceased Vasudeo.

The facts necessary to be noticed for the disposal of this appeal briefly stated are: that PW 18 Chananmal, who is the real maternal uncle of deceased Vasudeo lodged a written report to SHO, Police Station, Girab on 17-8-1987, which has marked Ex. P. 21 stating therein that his nephew (sister''s son) Vasudeo was sent by him to his filed in village Bandhra for supervision. He was assisted by PW 8 Sahabdansingh, child aged about 10 years. It is alleged that Sahabdansingh came and informed him that two persons came to the filed and they inflicted injuries to Vasudeo with an axe and lathi, by which, Vasudeo fell down and became unconscious. Thereafter, the accused persons ran away from the filed, It is further alleged that Sahabdansingh further informed him that he could not identify these persons On this, Chananmal accompanied by Hukamsingh Ghemarsingh, Jabar Singh, Chaturbhuj and Padamchand went to the filed and found Vasudeo lying injured and unconscious. The also saw the foot prints of two persons and on scrutiny, it was found two foot prints of two persons were going towards village Kundal. Thereafter, they put Vasudeo on a Charpai and brought him to village Bandhra. Later, they brought him to village Girab in a bus. According to Chananram, there were three big wounds on the head of Vasudeo inflicted by axe and lathies and some other injuries were also present on the person of Vasudeo. On this report, a case u/s 307 IPC was registered, The formal FIR was drawn. The site was inspected. Five foot prints were detected and protected when they were seen with the help of footprint experts. Accused Bhojrajsingh was arrested and a lathi was recovered from him but it was not found blood stained. Vasudeo was seat for medical examination, vide memo Ex. P. 13, which shows that he has received 6 injuries on his person. Vasudeo died on 18.-8-1987 at about 9.15 A.M. and so, his postmortem examination was got conducted. His postmortem examination report Ex. P. 20 shows that Vasudeo had only one lacerated wound over his scalp on the left side and as per the opinion of the Doctor, the cause of death was head injury and intracranial bleedings. The SHO prepared the site plan and Panchnama Lash and found three injuries on the head and one injury on the left temporal region. The Inquest memo was prepared and it was found that three injuries were existing on the bead and was existing on the left temporal region. The moulds of the foot-prints were not taken and they were not sent for any expert''s opinion. The lathi recovered was not found blood stained. The accused Bhojrajsingh who was arrested was get identified in an Identification Parade by witness Sahabdan Singh vide Identification Memo Ex. P. 18, which has been proved by the concerned Judicial Magistrate.

After usual investigation, the case against the accused-appellant Bhojrajsingh was challaned in the court of learned Judicial Magistrates. Banmer, from where, it was committed to the court of Additional Sessions Judge, Banner for trial. During investigation, it was found that the occurrence has been witnessed not only by PW 8 Sababdansingh but also by PW 9 Bhanwarsingh, PW 10 Nimbsingh, PW 11 Gopalsing and PW 15 Bheemsingh, who all were examined during trial, PW 19 Gopalsingh the Investigating Officer has also been examined and he has stated that he went for the arrest of the accused with the help of foot print expert Pagi Sajjan Khan. The statement of the accused was recorded u/s 312 Cr.P.C. He has stated that he was shown to the witnesses when be was arrested. He did not produce any defence and, therefore, the learned lower court after hearing both the parties decided the case as aforesaid. Hence this appeal.

I have heard Mr. Doorgarsingh, the learned Counsel for the accused-appellant and Mrs. Chandralekha, the learned Public Prosecutor for the State. I have carefully gone through the record of the case.

Mr. Doongarsing the learned Counsel appearing for the accused-appellant has submitted that this case falsely lodged against the accused-appellant. Fictitious witnesses have been created. False record has been prepared and the entire story of the prosecution has been changed so as to bring it in accordance with the medical evidence. As per him, nobody has seen the occurrence. He has further submitted that according to the prosecution; an attempt has been made to trace the accused on the basis of the foot prints with the help of foot-print expert Pagi Sajjan Khan but Pagi Sajjan Khan. has not been examined and no moulds of the foot prints have been taken. The site inspection memo Ex. P. 2 shows that three foot prints of three persons were existing at the spot.

Mr. Doongarsingh has submitted that initially, the case of the prosecution as set up in the FIR on the information of given by Subabdan Singh was that two persons one armed with an axe and the other armed with a lathi came there and inflicted injuries to Vasudeo. by which, he fell down and thereafter, the accused-persons ran away from the place of the occurrence. It is alleged that Sahabdansingh has seen the occurrence and thereafter, he went to village and informed Chananmal about this occurrence. In this FIR Chananmal has not disclosed the names of other eye witnesses, who it is alleged have seen the occurrence & have talked with Sahabdansingh. It has been mentioned in the FIR that Sababdansingh was not able identify the persons who were two in number one armed with an axe and the other armed with a lathi and they have inflicted three injuries on his head. But now, it is alleged that only one parson was there who was armed with a lathi and he has inflicted three injuries on the head of Vasudeo. The alleged eye witnesses of the occurrence i.e. PW 9 Bhanwarsingh, PW 10 Nimbsingh and PW 11 Gopal Singh have stated that they went near the place of the occurrence and have a talk with Sahabdansingh and told him that Bhojrajsnigh has inflicted injuries to Vasudeo. If that was as, the names of these witnesses could have been disclosed by Sahbadansingh to Chananram and he would have further disclosed this fact in the FIR that it was accused Bhojrajsingh who has inflicted these injuries to Vasudeo. In these circumstances, Sahabdansingh would not have informed Chananram that two persons have inflicted injuries to Vasudeo & they were armed with lathi & axe. if such number of persons were there, would have caught hold of accused Bhojrajsingh. If accused Bhojraj Singh was actually seen by these witnesses and has been identified there was no reason for the prosecution to protect the foot prints and to go in search of the accused on the basis of the foot prints with the help of foot prints expert Pagi Sajjan Khan. This clearly shows that Bhojrajsingh was not seen by any body, otherwise there was no necessity to track the foot prints to arrest the accused. They would have straight away gone to village Gujangarh because they know that it was accused Bhojrajsingh who has committed this crime.

Mis Sumitra Sankhla, the learned Public Prosecutor appearing for the State has, how ever, submitted that in this case not only the accused has been identified by the eye witnesses and has been named but he was put for identified in the Jail to witness Sahabdansingh and he has identified him and therefore, this link supports the testimony of Sahabdansingh that this was accused Bhojrajsingh who has taken part in this incident.

I have considered the rival submission made at the bar and I feel inclined to agree with the submissions made by Mr. Doongarsingh, the learned Counsel appearing for the accused-appellant.

In this case, it appears that no body has seen the incident. The report of the incident has been lodged by PW 18 Chananmal on the basis of the information supplied to him by PW 8 Sahabdansingh. In this report, he get it recorded that at the time of the incident, two persons came in the field and they inflicted injuries to Vasudeo with axe and lathi. So much so, Vasudeo become unconscious on account of the injuries received by him When Sababdan Singh found that Vasudeo has become unconscious, he went to village and informed Chananmal that Vasudeo has been severely beaten. Thereafter, Chananmal accompanied by other parsons went to the field and found that three injuries were existing on his head inflicted by lathi and axe. PW 17 Dr. Ramakishan, who has conducted the post-mortem examination of deceased Vasudeo has found only one injury on his head, which was a lecerated wound of the size of 6 c.m. x 2 c.m. He has categorically stated that no other injury was found on his person On opening the skull, he found that there was pressure on the left side of the parietal bone which was found fractured. There was clotting of the blood, which clearly shows that Vasudeo received only one injury on his head. The injured Vasudeo was sent for medical examination vide memo Ex. P 13 which shows that he received 6 injuries on his person. Later, after the death of injured Vasudeo, when Panchnama Lash and Inquest memo were prepared, the police found four injuries on his person. It appears that this evidence has been created to involve number of persons for inflicting number of injuries and all these documents prepared by the police can safely be held to be false documents when they are compared with the postmortem report as well as the medical evidence.

PW 8 Sahabdansingh himself has stated that on the day of the occurrence, when certain cows entered into the field of Chananram, he and Vasudeo went to drive out the cows from the field and to take them to the cattle pound. Bhojrajsingh asked them not to do so and when Vasudeo refused, it is alleged by Sahabdansingh that accused Bhojrajsingh inflicted three lathi-blows on his head by which he fell down. Thereafter, PW 9 Bhanwarsingh, PW 10 Nimbsingh and PW 11 Gopalsingh came there and on seeing them the accused ran away from the place of the occurrence. Now, he does not state that they were all present but he has stated that accused Bhojrajsingh was the only person who was present. He has stated that he has identified the accused before the Magistrate. When cross-examined, he has stated that there was only one person present in the filed and it was he (accused Bhojrajsingh) alone, who inflicted three injuries on the head of Vasudeo. He has also stated that Bhanwarsingh, Nimbsingh and Gopal Singh told that Bhojrajsingh has inflicted these injuries. He was confronted with his earlier statement that he has informed Chananmal that two persona armed with axe and lathi came there and inflicted injuries to Vasudeo but he has stated that he did not state any such thing to Chananmal. He was also examined by the Police but in that statement too, he did not name the accused. He has stated as under:

gdhdr es xksikyflag o uhcflag us dgk fd u ekywe bldks dkSu ekj dj x;k rw xkao tkdj bfRryk dj ns fd oklqnso dh ekjihV dh gSA

From the above statement, it clear that neither Gopalsingh nor Nimbsingh identified the accused nor they have seen the occurrence. They came to the place of the occurrence after it was over and, therefore, the attempt of the alleged eye witnesses PW 9 Bhanwarsingh, PW 10 Nimbsingh and PW 11 Gopalsingh to prove that they have seen the occurrence and have informed the name of the accused to Sahabdansingh appears to be an attempt to indulge in falsehood. If Sahabdansingh has seen only one person armed with a lathi and he could not identify him, he would have disclosed Chanan Mal that only one man came there and he was armed with a lathi. He could not have informed him that two persons came there armed with lathi and axe. Now Chananmal has stated that he was informed about the occurrence by Savdhan Singh which actually might be a wrong name for Sahabdansingh because in the report, he has stated that he was informed about the occurrence by Sahabdansingh. According to him, Sahabdansingh has disclosed him that he has identified the accused If that was so, he must have named that man in his report which was lodged by him. He is Up-Sarpanch of the village Panchayat. When his nephew has been seriously injured, he would not have mentioned in the FIR that Sahabdansingh has informed him that two persons armed with lathi and axe came there and inflicted injuries to Vasudeo and he could not identify them He was confronted with portion J to K of Ex. P 21 where in he has stated that Sahabdansingh has informed him that two persons armed with lathi & axe came there & inflicted injuries to Vasudeo and he could not identify them, he has stated that he get this thing written in Ex. P 21 and that was correctly written there in, which clearly means that till he lodged the FIR, he did not knew who were the assailants and this is what he has admitted in his statement in cross-examination. This FIR was lodged by Chananmal after he visited the field. If PW 9 Bhanwarsingh, PW 10 Bhojrajsingh and PW 11 Gopalsingh have actually seen the occurrence they would certainly have met Chananmal in the field to tell him that they have witnessed the beating of Vasudeo by Bhojrajsingh armed with a lathi. Even Sahabdansingh if he had met these eye witnesses before he want to the village, he must have disclosed the names of these eye witnesses to Chananmal and must have further told him that the assailants of Vasudeo was Bhojrajsingh. The absence of all these facts in the F I R clearly goes to prove that none of them has seen the occurrence and they are all planted witnesses Such discrepancies can never crop up in the statements of the eye witnesses, who have seen the occurrence, More over, if the accused was identified and his name was disclosed to Sahabdensingh by the other eye witnesses and to Chananmal by Sahabdansingh where was the necessity to protect the foot prints and to secure the help of a Pagi to arrest the accused If the occurrence was witnessed by so many persons, neither there could have been so much of difference about number of injuries inflicted to Vasudeo nor the eye witnesses could have allowed Bhojrajsingh to run away from the spot. If accused was known to Sahabdansingh and was named by him, where was the necessity for the Investigating Officer to put Bhojrajsingh accused for identification of Sahabdansingh. It is, therefore, clear that PW 8 Sahabdansingh, PW 9 Bharwarsingh, PW 10 Nimbsingh and PW 11 Gopalsingh have not seen the occurrence.

PW 13 Bheemsingh has categorically states that after Vasudeo was injured, he went there and asked him as to what has happened to him upon which he told him that cow.hure man have beaten him but he did not see anybody there. It is true that PW 9 Bhanwarsingh, PW 10 Nimbsingh and PW 12 Gopalsingh have stated that they have seen the assailants. According so these witnesses, accused Bhojrajsingh inflicted three injuries on the head of Vasudeo, This also shows that they have not seen the occurrence because only one lacerated wound injury was found existing on his head by PW 17 Dr. Ramkishan. They have stated that they told Sahabdansingh to inform the villagers that Bhojrajsingh has given beating to Vasudeo. If that was so, there was no reason for Sahabdansingh to withhold the name of Bhojrajsingh from Chanaumal. I am, therefore, definitely of the view that these persons have not seen the occurrence. Simply because Sahabdansingh has identified Bhojrejsingh in the identification parade, it does not mean that be has seen Bbojrajsingh inflicting injuries to Vasudeo. If he had seen him and identified him, he would never have informed Chananmal that there were two persons armed with lathi and axe and they have inflected number injuries to him with lathi and axe. I therefore, hold that identification of the accused is not established on the strength of the testimony of these eye witnesses and on the basis of other material in record accused-appellant Bhojraj Singh could not have been held guilty of the offence under Sections 304 Part-1 and 447, IPC.

I, therefore, accept this appeal-sat aside the conviction and sentence of the accused-appellant Bhojrajsingh recorded under Sections 304 Part-II and 447 IPC and acquit him of both these offences. Accused Bhojrajsingh is in custody. He be set at liberty forthwith, if he is not required in any other case.

Let the record of the case be sent to the learned lower court forthwith.