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.