Chandu and Others vs State of Rajasthan

Surendra Nath Bhargava, J.—These two appeals arise out of a common judgment dt. 28-7-1987 passed by Sessions Judge, Alwar in Sessions Case No. 99 of 1984 convicting the accused appellants Chandu, and Budh Singh (in appeal No. 389/87), u/s 302 I.P.C. and sentencing each of them to undergo life imprisonment and a fine of Rs. 1,000/-, in default of payment of fine, six month''s RI. and convicting accused appellant Jodh Singh u/s 307 I.P.C. and sentencing to 10 years'' RI and a fine of Rs. 500/-, in default of payment of fine, four months'' RI while acquitting Avaj, Jodh Singh s/o Avaj, Amar Singh, Shyam Singh, Roozdar, Asar Khan, Rahman, Heeralal, Smt. Mozabi and Smt. Bashiri (in appeal No. 125/1987).

Ayub Khan (PW 1) lodged a First Information Report (Ex-P 1) at about 3.30 p.m. on 20-1-1984 stating there in that at about 10 a.m. he along with others (named therein) had gone to his field ''CHIDIYA PEER WALA KHET'' for cutting mustard crop. At about 1.00 p.m. he along with others came home and after ''Jumma Ki Namaj'' when they reached the field at about 2.30 p.m. accused persons were putting the crop, which they had cut in the morning, into the tractor of Amar Singh and when they resented and asked them not to do so, Dalmod stated that he will not allow them to carry the crop, whereupon some altercation took place and accused Chandu fired on Dalmod. Amar Singh also fired a shot on Hakim. Jodh Singh fired at Sahid, Budha fired on Abdul and other accused persons inflicted injuries by Pharsi and Lathi, on the members of the complainant party.

On the aforesaid report, a case u/s 302 I.P.C. was registered. The police after usual investigation, submitted challan against sixteen persons out of whom thirteen were committed to the court of Sessions, where as three accused Batooni, Sher Khan and Gafoondi were ordered to be tried in the Children''s Court. Sher Khan died during trial and case is still pending against Batooni and Gafoondi, in the Children Court.

Sessions Judge, Alwar, after trial, convicted and sentenced accused Chandu, Budh Singh and Jodh Singh (in Appeal No. 389/87) as aforesaid and acquitted the ten accused respondents in Appeal No. 125/87, vide his judgment dated 28-7 1987. The three accused appellants viz., Chandu, Budh Singh and Jodh Singh have filed appeal No. 389/87, whereas the State of Rajasthan has filed appeal No. 125/87 against acquittal of ten accused persons.

We have heard learned Counsels for the accused appellants as also the Public Prosecutor and Shri Prabhat Kumar, for the complainant side, and have gone through the judgment of the trial court as also the voluminous record of the case.

Both accused party as well as complainant party belong to the same family, their family ancestor being Jagroop. Jagroop had two sons - (i) Aiwaj and (ii) Chhote. Sons and grand sons of accused Aiwaj belong to the accused party whereas Chhote, wife Chandi and Chhote''s children and grand children belong to the complainant party. It is an admitted fact that both the complainant party and the accused party were not keeping good relations and there were disputes between them with regard to their land and cultivatory rights over it. Litigation is still pending between the parties in that connection. Occurrence of incident has not been denied by the accused persons. Accused Chandu, Sheo Singh, Mauzbe, Banoo and Asar Khan received injuries during the course of occurrence. Their injury reports are Ex. D 25, Ex. D 26, Ex. D 27, Ex. D 28 and Ex. D 29 respectively and they have been duly proved by PW 4 Dr. Prabhu Dayal Saini and PW 13 Dr. R.K. Mishra. Later on Mst. Banoo, one of the members of the accused party died as a result of these injuries received by her, after nearly eight days of the incident.

Prosecution examined as many as 19 witnesses. Accused persons, in their statements recorded u/s 313 Gr. PC have denied the allegations. Accused Sheo Singh and Amar Singh have filed their separate written statements in which they have stated that they were in possession of the land in dispute and had cultivated mustard (Sarson), and the complainant party wanted to take possession of the land. It was also stated by them that litigation is pending but so far, they have not been successful. The complainant party wanted to cut their crop and take it forcibly from the field. When the accused persons resented and objected to it, the complainant party gave beating to the members of the accused party and also opened fire. As a result of this, Banno, who was pregnant, died along with her child in the womb. The accused persons did not examine any defence witness. Prosecution examined as many as | eye witnesses namely FW 1 Ayub, PW 2 Shafi. alias Shappi, PW 3 Saddique, PW 4 Zuhru, PW 5 Gafoondi, PW 6 Jaitooni, PW 7 Saida, PW 8 Deen Mohammed. PW 9 Yakub, PW 10 Hazra and PW 11 Batooni, who are all injured and related. Prosecution has not examined even a single independent eye witness. None of the aforesaid eye witnesses have explained the injuries received by the accused persons. All the eye-witnesses have given a graphic description, a parrot like evidence. We do not find any material contradiction which is almost impossible unless they are all tutored. If the accused persons were having any fire arms with them, and if they actually fired, as deposed by the prosecution witnesses, in that position, the accused persons would not have suffered injuries.

The cross-case filed by the accused persons by way of private complaint, since the police had given Final Report in that case, is still pending. The statements of eye-witnesses PW 2 Shafi, PW 3 Saddique, PW 4 Juhroo PW 6 Mst. Jaituni, PW 8 Deen Mohammed and PW 9 Yakub were recorded after two days i.e. on 22-1-1984 and those of PW 5 Gafoondi, PW 7 Saida w/o Sappi and PW 10 Hajra after four days i.e. on 24 1-1984, and that of PW 11 Batooni on 5-3-1984. The explanation given by these witnesses and that given by the Investigating Officers viz., PW 15 Gajraj Singh and PW 19 Bhagwati Prasad is contradictory and, therefore, cannot be believed and does not inspire confidence as has been observed by the trial court itself. According to the prosecution case, the place of incident was ''CHIDIYA PEER KA KHET'' but strangely enough, ''CHIDIYA PEER KA KHET'' has not been shown in the site plan (Ex. D 1) nor is there any reference to it in the statements of witnesses recorded u/s 161 Cr. P.C.

The prosecution case further is that there were two tractors - one belonging to the complainant party and the other belonging to the accused party but there are no marks of tractor on the field and, therefore, the story of tractor also became very doubtful, as to whether the complainant party had a tractor or the accused party had the tractor and as to who was trying to take away the crop. The story that the complainant party had gone in the morning to the field for cutting the crop, that the men-folk had come for the ''Jumme-ki-Namaj'', and had gone back to the field at 230 when the incident happened, also does not even find support from the prosecution evidence and there are several contradictions and omissions in the statements of the prosecution witnesses, recorded before the police u/s 161 Cr. P.C. as also in the court. Therefore, the prosecution has not come out with a true genesis of the occurrence and it remains shrouded in the mystery. Even the Sessions Judge, who has given a very detailed judgment, has found that the prosecution witnesses are not reliable and has discarded their evidence and has not believed their statements with regard to ten accused persons whom he has acquitted. In the judgment, Sessions Judge has observed at a number of places that their evidence is not reliable and they are not truthful witnesses, and have not spoken truth.

Learned counsel for the appellants has submitted that evidence of such witnesses who are all injured, related, belongs to the same family and are inimical towards the, accused persons, should not be believed, specially when they have been disbelieved qua other ten accused persons who have been acquitted by the trial court and the entire prosecution case must be discarded since it is not possible to separate grain from the chaff, and their evidence should be discarded as a whole and should not be believed even against the accused appellants Chandu, Budh Singh and Jodh Singh. In this connection, he has placed reliance on Balaka Singh and Others Vs. The State of Punjab, , Lakshmi Singh and Others Vs. State of Bihar, and Fatya alias Fateh Lal and Others Vs. State of Rajasthan, for the proposition that since the prosecution has not explained the injuries to the accused persons, the whole prosecution case should be rejected.

Reliance has also been placed on Gafoor v. The State of Rajasthan 1983 RLW 656 where their Lordships have observed that if the evidence given by the injured witnesses who are closely related and are highly interested, uniformly gives the sequence of events which took place during the occurrence and further gives graphic description, their evidence seems to be tutored and, therefore, no reliance can be placed on such witnesses.

Learned counsel for the appellants has also placed reliance on Ganesh Bhavan Patel and Another Vs. State of Maharashtra, where their Lordships have observed that the delay in recording the statements of the eye-witnesses u/s 161 Cr. P.C. by the police amounts to serious infirmity in the prosecution case and it casts a clouds of suspicion on the credibility of the entire warp and woof of the prosecution story. For the same proposition, he has also placed reliance on Babu Maulana and Others Vs. State of Rajasthan, and Mahaveer and Ors. v. State of Rajsathan 1986 CLR 750.

Learned trial court itself after analysing the voluminous prosecution evidence, has come to the conclusion that charge u/ss 148 and 149, 1PC framed against the accused persons has not been proved and, therefore, it has not recorded conviction of the accused persons, under Sections 147, 148 & 149 I.P.C. and that implies that the prosecution has failed to prove that the accused persons in pursuance of an unlawful object had conspired to give beating and the unlawful assembly has not been proved. Learned Sessions Judge, having discarded and not believed the statements of the injured eye-witnesses with regard to the other accused persons (in appeal No. 125/87) who have been acquitted by the trial court, has placed reliance on their evidence with regard to the conviction of appellants in Appeal No. 389/87. Evidence of all these eye-witnesses is so intermixed that it is not possible to sort out as to which portion of their statement is truthful which could be relied and, therefore, conviction of the accused appellants cannot be maintained and no reliance should be placed on the testimony of interested, relative, injured and tutored eye-witnesses.

Learned counsel for the appellants has also submitted that since the accused party had also received injuries, and ultimately; one of them Smt. Binno died along with her child in womb, shows that they had a right of private defence and in this connection, he has placed reliance on Munshi Ram and Ors. v. Delhi Administration AIR 1968 SC 702 and Gyarsaya and Ors. v. State of Rajasthan 1985 RCC 172.

Learned counsel for the appellants has also submitted that the prosecution has failed to examine any of the independent witnesses who were available at the site, even according to the prosecution, and, therefore, an adverse inference should be drawn against the prosecution for not examining those witnesses. Prosecution, in the present case, has examined only interested witnesses who were their relatives and also injured at the time of the incident. Litigation was also pending between the parties and there was old enmity between the parties. In this connection, reliance has been placed on Bir Singh and Others Vs. State of Uttar Pradesh, , Harbhan and Ors. v. State of Rajasthan and Ors. 198 7(2 WLN 350 and Pyare Lal and Others Vs. State of Rajasthan,

On the other hand, the learned Public Prosecutor and the complainant''s counsel have submitted that the accused persons were aggressors and they were taking away the crop which was sown and cut by the complainant party and when this was objected to, the accused party inflicted severe injuries and also made gun fire with the result that several persons from the side of the complainant party died. The accused persons had made indiscriminate firing and merely because the prosecution has not been able to explain the injuries sustained by the accused persons, the whole prosecution case cannot be discarded, and merely because some of the accused persons have been acquitted by the trial court, no inference could be drawn that the evidence against the accused appellants is also not reliable. In the present case, the State Government has filed an appeal against acquittal of the ten accused persons and it is the duty of the Court to separate grain from the chaff and to disengage the truth from the falsehood and to accept the truth and to reject the falsehood. The trial court was perfectly justified in convicting the accused appellants. The evidence of the witnesses who were admittedly present at the place of occurrence, will not implicate accused persons falsely and their evidence should not be discarded merely because they are related or are injured. The court should examine their evidence with caution and should scrutinise to find out the genesis of the occurrence and the substratum of the prosecution story. In this connection, reliance has been placed on Ram Lakhan and Others etc. Vs. State, Taga and Lakha v. State of Rajasthan 1976 RLW 589, Jairam v. State of Rajasthan 1985 RLW 490, Hare Krishna Singh and Ors. & Ram Kumar Upadhya v. State of Bihar AlR 1988 SC 883 and Mahendra Singh v. State of Rajasthan 1974 WLN 94.

They have further submitted that merely because statements of the eye-witnesses were recorded late, or that the police was not so vigilant during investigation, the whole prosecution case cannot be dis-believed and the evidence of the witnesses should not be rejected. In this connection, reliance has been placed on Baladin and Others Vs. State of Uttar Pradesh,

We have given our thoughtful consideration to the various submissions made at the bar and have carefully gone through the evidence and the other record of the case.

It is an admitted fact that the complainant and the accused party both are very closely related and they are the descendants and have common ancestor Jagroop. There was a dispute regarding possession of the land as also about the cultivatory rights and litigation was going on between them when the incident took place. It is also not denied that the incident happened at the relevant time and members of both accused and the complainant party received injuries in the said incident. Prosecution has failed to explain the injuries received by the accused persons and all the eye-witnesses are wholly silent regarding the injuries received by the accused persons, and they have, in fact denied that the accused persons received any injury at the time of the occurrence. Mst. Banno, from the side of the accused party, died along with her child in the womb, as a result of the injuries received by her and six persons from the complainant side died. It is really very unfortunate. Trial court has not placed reliance on the evidence of eye-witnesses qua the ten accused persons who have been acquitted by it. Trial court further found that the prosecution had failed to prove that there was any unlawful assembly or that the accused party had an unlawful common intention/object in furtherance of which they had attacked the complainant party. Therefore, the trial court acquitted the accused persons of the offences under Sections 147, 148 & 149 I.P.C. All the eye witnesses are interested. Qrelatives and also inimical against the accused persons because of prior litigation going on between the parties relating to cultivatory possession of the land. The prosecution has failed to adduce any independent witness. The evidence of the eye-witnesses has been disbelieved qua the ten accused persons and the trial court has found at number of places in the judgment that the eye-witnesses have belied themselves on several points.

In the present case, the falsehood and the truth, if any, is so intermingled that it is not possible to separate truth from the falsehood or the grain from the chaff and it will be unsafe to rely on such evidence to convict the accused appellants for an offence u/s 302 I.P.C. It is not a case where there was only one accused person but in the present case, there are number of accused persons. Accused persons have claimed both right of private defence with regard to property as also person and it is very difficult to ascertain as to which accused person is responsible for the death of the deceased persons, and, therefore, none of the accused appellants could be convicted u/s 302 I.P.C. or u/s 302/34 I.P.C., as has been observed in State of Bihar Vs. Nathu Pandey and Others, . It is just possible that some of the accused persons may be responsible for the death of the six persons from the side of the complainant party but it is not safe to act on surmises and conjectures so as to believe the prosecution case against each of the accused person beyond reasonable doubt, and if there is any doubt benefit of doubt is to be given to the accused persons. It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go un-punished. There may also be an element of truth in the prosecution story against the accused persons. The prosecution story may be true; but between ''may be true'' and ''must be true'', there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal reliable and unimpeachable evidence before an accused can be convicted, as has been held by their Lordships of the Supreme Court in Sarwan Singh Vs. The State of Punjab, . In the present case, we do not find the prosecution evidence as reliable and unimpeachable, and, therefore, the accused appellants are entitled to benefit of doubt.

In the result, Appeal No. 389/1987 Chandu and Ors. v. State of Rajasthan is allowed, the judgment passed by the Sessions Judge, Alwar, convicting and sentencing the appellants under Sections 302 and 307 I.P.C. is set aside. The accused appellants Chandu, Budh Singh and Jodh Singh are in jail, they should be released immediately, if not required in any other case.

Consequently, Appeal No. 125/1987 State of Rajasthan v. Avaz and Ors. fails and is hereby dismissed.