Harbhan and Others vs State of Rajasthan and Others

Gopal Krishna Sharma, J.—D.B. Criminal Appeal No. 447/83 has been preferred by Harbhan against his conviction u/s 302, I.P.C. He was found guilty u/s 302, I.P.C. vide judgment dated 11-8-1983 by Additional Sessions Judge, Deeg and sentenced for life imprisonment and a fine of Rs. 100/-, in default of payment of fine, to further undergo 6 months rigorous imprisonment.

Against the judgment of Additional Sessions Judge dated 11 8-1983 the State has also preferred an appeal. In all 15 persons were challenged. The learned Additional Sessions Judge found the accused Harbhan only guilty of the offence u/s 302, I.P.C. and acquitted rest of the accused-persons. Against the acquittal, the State has preferred this appeal. Leave to appeal was granted to the State with regard to accused Sarvan, Kajali, Lal Chand, Data Ram, Kallu, Kanhaiya and Bhagwan Singh only.

Against that very judgment of the Additional Sessions Judge, by which he acquitted other accused persons except Harbhan, the complainant Bhagwan Singh also filed a Criminal Revision Petition No. 109/84

As all these appeals and the Criminal Revision arises out of the same judgment of Additional Sessions Judge. Deeg dated 11-8-1983, they are disposed of by this common judgment.

According to the prosecution story a written report was lodged by Bhagwan Singh on 7-7-1982 at Police Station, Deeg. It was alleged that there was enmity in between the deceased Jasmat and the accused persons. On 7-7-1982 when deceased Jasmat was going to take his bath at the well at about 6 a.m., accused Kanhaiya was sitting in front of the temple He after seeing Jasmat, called other accused persons who came armed with Lathis, Farsas and Ballams. They took the deceased Jasmat aside and gave blows with Farsa and Lathies. Some of the accused persons surrounded Bhagwan Singh and Leela and also inflicted blows to Leela. After hearing the cries, Rajo came at the spot. Bhagwan Singh inflicted a Farsa blow on Rajo and other accused gave Lathi blows. When Bhagwan Singh tried to save, accused chased him. They found Prahalad, Dharampal, Nannu and Brij Lal sitting in ''Nohra'' and inflicted Farsa blows to them The accused persons caught hold of Jasmat and dragged him to the Bungalow of Lallu. Harbhan inflicted farsa blow on the head of Jasmat and other accused persons also inflicted farsa and lathi blows. The accused persons surrounded all of them and they were uttering words that all be killed, none be saved. On this allegation a case under Sections 147, 148, 149, 323, 307 and 452. I.P.C. was registered and started investigation. The injured were medically examined. Jasmat lateron succumbed to the injuries. His post mortem was conducted and according to doctor the cause of death was head injury. After completing the investigation, the Police submitted challan against 28 persons.

The accused-persons denied the charge and claimed trial. The prosecution has examined 11 witnesses to establish its case. No defence witness was produced by the accused-persons. The learned Addl. Sessions Judge after completing trial and hearing both the parties came to the conclusion that no case is made out against accused persons except Harbhan s/o Prasadi. This accused Harbhan was found guilty of the offence u/s 302, I.P.C. and was convicted and sentenced as mentioned above.

The learned Counsel for the appellant Harbhan has argued that the original report has been suppressed by the Police. The FIR Ex. P 1 submitted by Bhagwan Singh is not the original report but it was subsequently prepared as an after thought. Bhagwan Singh who alleges himself to be an eye witness is not an eye witness but is a concocted witness. It was also argued that prior to filing this report Ex. P 1, two reports were submitted to the Police but the they have been suppressed and not produced in the Court Therefore, on account of suppression of the original report the prosecution story becomes doubtful.

It was also argued that there is no genesis for this incident and the Police has changed the place of incident The prosecution has not examined some of the injured persons. Their statements were very important. They were injured persons and they would have given the correct story as to what had happened at that time. Non-production of these material witnesses throws doubt on the correctness of the prosecution story. It was also argued that the other injured persons were examined by the prosecution and their statements have been discussed in detail by the learned Addl. Sessions Judge in the judgment and he found them unreliable. Their statements were discarded by learned trial Court. There is no reason to disagree with the conclusion arrived at by the learned Addl. Sessions Judge with regard to those injured persons who have been disbelieved by him. Regarding accused Harbhan it has been argued that he was convicted on the statement of those persons who have been disbelieved by the trial Court. Therefore, the conviction of Harbhan on the basis of unreliable and untrustworthy witnesses is bad.

The learned Public Prosecutor in support of the State appeal No. 175/74 argued that the learned Sessions Judge has committed error in disbelieving the injured witnesses and has committed error in acquitting the accused persons for whom leave to appeal has been granted. According to learned Public Prosecutor the case is completely made out against these accused-persons. The witness Bhagwan Singh has been rightly believed by the trial Court and the conviction of Harbhan is correct.

In the criminal revision petition the learned Counsel on behalf of the complainant argued that the learned Sessions Judge has committed error in acquitting the other accused persons The case is clearly made out against all the accused persons and they should be convicted. So the judgment of the learned Addl. Sessions Judge is liable to be set aside.

We have considered the arguments advanced by all the learned Counsel, we have minutely perused the statements recorded by the trial Court and the relevant document and also perused the judgment of the Addl. Sessions Judge.

12 According to prosecution Bhagwan Singh PW 1, who is informant in this case, is the main witness. Much reliance has been placed on the statement of this witness by the learned Public Prosecutor. The learned Addl. Sessions Judge also believed the testimony of this witness and on the basis of the testimony of this witness, the appellant Harbhan Singh has been found guilty of the offence u/s 302, I.P.C. we have gone through the statement of this witness. Bhgwan Singh PW 1 has, in his examination in-chief, repeated the story mentioned in the report Ex. P 1. He has stated in detail about each accused who inflicted injury at the time of incident. He has stated that after hearing cry and when the accused persons found that Jasmat and Leela had died they ran away and at that very moment Police people had arrived there. Mst. Rajo bad gone running to Police Station and along with Mst. Rajo the Police people arrived at the spot He then went to the Police Station and submitted the report. When he submitted the written report the Police people told him that there is some lacuna in this report, so he came to Court and got another report written in the Court and then he submitted that second report at the Police Station which is Ex. P 1. So this witness Bhagwan Singh has proved the report Ex. P 1. He has also stated that prior to this report Ex. P 1. Mst. Rajo had gone to the Police Station and the Police-people came along with her at the spot. It means that Mst. Rajo has lodged a report at the Police Station and that is why the Police-people came with Mst. Rajo. So the report of Mst. Rajo was the first report. Then, according to Bhagwan Singh be submitted a written report and it was returned to him saying that there is lacuna in it. Bhagwan Singh then went to Court and got another report scribed by some persons and then submitted at the Police Station which is Ex. P 1. This second report of Bhagwan Singh has also not been produced and this Ex. P 1 is the third report. There is no explanation for not producing by the learned Public Prosecutor, the first report lodged by Mst. Rajo and the second report submitted by Bhagwan Singh. Why the first and second reports were suppressed and not produced in the Court is best known to the prosecution. The third report Ex. P 1 is a very detailed report, which shows that after due consideration and thought it has been drafted. What was the lacuna in the second report is not known to us but seems that the second report which was submitted by Bhagwan Singh was not sufficient to make out a case and the Police wanted to have a full-proof case and they wanted to implicate quite a large number of persons, hence a detailed report was got written by Bhagwan Singh PW 1. This aspect about FIR has been discussed by the learned Additional Sessions Judge in his judgment and he has also come to this conclusion that this report Ex. P 1 is a well-thought report which was prepared subsequently after due consideration. Inspite of this impression, in the mind of trial Court, the learned Additional Sessions Judge still believed the report Ex. P 1. This is not a correct appreciation. Bhagwan Singh in the cross-examination has admitted that Rajo met him in the way while going to Thana. He has further stated that he did not submit any report at the Police Station except report Ex. P 1. He has further stated that when he reached at the Police Station, Mst. Rajo was with him at the Police Station. He got the first report written and the Police-people told him that this report is not clearly readable and asked him to bring another report. That first report was written by him while sitting at the Police Station. He took about half an hour to write that first report. When Police arrived at the spot he also accompanied the Police and when Police returned from the spot to the Police Station then he submitted the report which is Ex. P 1. According to him he got this report written at 10-11 O''clock. One Goswami wrote this report. The statement, of Bhagwan Singh SHOWS that he is most unreliable person and who has given self-contradictory statement. According to him, one report was submitted when Police returned from the spot to Thana. This shows that report Ex. P 1 is a manipulated one and prepared after due consideration. In the cross-examination Bhagwan Singh has given a very strange answer. He has stated that when his statement was recorded by the Thanedar, he (Thanedar) told him that he did not know that these persons will murder. He has further stated that "Yeh Bhagwan Janta Hai Ki Thanedar Ke Kahne Se Katal Hua He". In Ex. P I it has been mentioned that the condition of Jasmat is very serious but in the cross-examination in the last line the witness Bhagwan Singh PW 1 has stated that when he was getting the report Ex. P 1, written, he had come to know that Jasmat has died. When he was informed at the time of scribing Ex. P 1 that Jasmat had expired, why he did not mention this fact in the report Ex. P 1 and why he mentioned that the condition of Jasmat is serious. This shows that Bhagwan Singh is most unreliable person. He is not at all an eye-witness. He has contradicted his own statement and also contradicted the report Ex. P 1. The suppression of first and second reports also shows that Bhagwan Singh is an unreliable witness and no reliance can be placed on his testimony. The learned trial Court has committed error in believing the testimony of Bhagwan Singh PW 1.

Nannu PW 2 is another eye-witness who has in the examination-in-chief supported the prosecution story but he has contradicted his own Police statement Ex. D 1. He is an injured person. His statement was recorded in the hospital and when the statement was recorded he know that Jasmat had died still in the statement Ex. D 1 he had stated that the condition of Leela and Jasmat was serious. He has denied to have given this statement. He has also stated that he had not seen any-body inflicting Lathi blow so this witness is also not a reliable witness.

Karan PW 3 is another eye-witness and in the examination-in-chief he has supported the prosecution story, but the cross-examination shows that he was also an unreliable witness. He has not stated in Police statement that the accused persons dragged Jasmat to the ''Nohra'' of Lallu. He had not stated in the Police statement that Jasmat was beaten at the Nohra. He has denied his Police statement Ex D 1.

Rajo PW 4 has tried to corroborate the prosecution story but has contradicted the statement of Karan Singh PW 3. According to her, Jasmat and Leela were beaten at the well which is not according to Karan Singh. Kallo PW 6 also gave contradictory statement and denied his own statement EX.D 5 recorded by Police. PW 11 Ganda Singh is the SHO who has stated that Bhagwan Singh submitted the written report Ex. P 1 at the spot. That report was sent to the Police Station for registering the case through Rajkumar Constable. This is a contradictory statement to Bhagwan Singh PW 1. According to Bhagwan Singh the report Ex. P 1 was submitted by him at the Police Station. He got it written in the Court and then went to Thana and submitted the report, while according to Ganda Singh PW 11 this was submitted at the spot. In the cross-examination the SHO has categorically stated that it is incorrect that report Ex. P 1 was submitted by Bhagwan Singh at Thana He has also stated that it is not correct that Bhagwan Singh submitted first report and this second report was taken from him According to the SHO Ex P 1 was submitted at 8 am. at the spot and at 11 a.m. Raj Kumar Constable came back from the Thana after registering the case. But this statement is falsified by Bhagwan Singh PW 1 who has stated that he reached at the Police Station and submitted the report Ex. P 1 which was got written at 10-11 am.

So this is the position of the prosecution witnesses. The learned Sessions Judge has thoroughly discussed the evidence of the prosecution witnesses in the judgment and has observed that statements of the witnesses are contradictory to the report Ex. P 1. Leela, Prahlad, Dhapal and Brij Lal who are injured persons and whose medical reports have not been submitted, have not been examined. In Para 17 of the judgment after discussing the statement of the prosecution witnesses the learned trial Court has observed that the prosecution witnesses are unreliable witnesses The Investigating Officer should have examined independent witnesses but he has not examined any independent witness. On account of old enmity and old litigation pending between the parties the witnesses tried not to speak truth and they tried to implicate as many accused persons as they could implicate in this matter. From the statement of the SHO Ganda Singh he inferred that the SHO did not try to get the correct picture and intentionally brought a false story before the Court. Mst. Rajo who had arrived at the Police Station at 7.30 a.m. and her report was got written in the Rojanamcha, but that Rojnamcha was not produced. That report has been suppressed by the Investigating Officer. The learned Sessions Judge in his judgment has remarked that the SHO Ganda Singh had deliberately given a false statement that Bhagwan Singh submitted a report at the spot. The remark is that the conduct of Ganda Singh PW 11 was not independent and honest conduct. It was also observed that it seems that the Police to implicate as many persons in this matter as they could. Even after giving this remark the learned Additional Sessions Judge found that the case is made out against Harbhan We fail to understand on what basis the learned trial Court found Harbhan guilty of the Offence u/s 302 1 PC. On the one hand the learned trial Court disbelieved the prosecution story, observed that the entire story has been concocted and the report Ex. P 1 has been prepared subsequently, and that the SHO Ganda Singh PW 11 has implicated 28 persons and has not correctly and honestly investigated the matter, the inspite of this the learned trial Court believed that case is made out against Harbhan. We are of the opinion that the approach of the learned trial Court against accused Harbhan is incorrect. The entire Police case is a concocted one. The Police has not submitted the correct picture before the Court and tried to suppress the true facts. Absolutely case is not made out against Harbhan appellant beyond reasonable doubt. it is unfortunate that Jasmat had died in this incident but it does not mean that somebody should be punished for his death. If a case is proved beyond reasonable doubt then certainly Harbhan can be held liable for this murder, hut the case is not made out beyond reasonable doubt. The prosecution witnesses have been disbelieved by the learned trial Court for the accused persons except Harbhan Singh and he believed the same prosecution witnesses against Harbhan Singh. This not a correct approach.

In view of our above discussion, we find that no case is made out against Harbhan and prosecution has failed to prove the case beyond reasonable doubt. The benefit of doubt must go to the accused. Similarly, there is no substance in the State Appeal against the acquittal order. Similarly there is no substance in the revision petition filed by the complainant.

As a result, the appeal No. 447/83 of Harbhan Singh is accepted. He is not found guilty of the offence u/s 302, I.P.C. and is acquitted. Harbhan is in jail and he be released forthwith, if not needed in any other case.

D.B. Cr. Appeal No. 175/84 State of Rajasthan v. Sarvan and Ors. having no substance, is hereby dismissed.

The D.B. Cr. Revision No. 109/84 Bhagwan Singh and Ors. v. The State of Rajasthan and Kajali is also dismissed.