Hemraj and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—The present appellants viz., Hemraj and Gyarsi Ram, along with co-accused, namely Radheyshyam, Rishiraj @ Rubia, Sitaram @ Ruggha, Chhitar, and Ramchandra @ Chandriya were named as accused in a case arising out of First Information Report (Exhibit-P/6), bearing No. 240/2004, registered at Police Station, Sarolakalan, District Jhalawar for offences punishable under Secs. 147, 148, 149, 341, 307 and 323 of Indian Penal Code. During the course of investigation, accused, namely Hemraj and Gyarsi Ram were not apprehended and the charge-sheet was submitted against them under Sec. 299 of Code of Criminal Procedure, however, later they were arrested and sent for trial.

The Court of Additional District & Sessions Judge (Fast Track), Jhalawar, by impugned judgment dt. 09.03.2006 convicted the present appellants, namely (i) Gyarsi Ram and Hemraj for offences punishable under Secs. 148, 341, 302/149 and 323/149 of Indian Penal Code.

Having held the appellants guilty of above said offences, the trial Judge, vide a separate order of even date, sentenced them as under:-

"For offence under Sec. 148 I.P.C. the appellants were sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 500/- each, in default of payment of fine to further undergo one months'' simple imprisonment.

For offence under Sec. 341 I.P.C. the appellants were sentenced to undergo one month''s rigorous imprisonment.

For offence under Sec. 302/149 I.P.C. the appellants were sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/- each, in default of payment of fine to further undergo three months'' simple imprisonment.

For offence under Sec. 323/149 I.P.C. the appellants were sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs. 500/- each, in default of payment of fine to further undergo one months'' simple imprisonment."

All the sentences were ordered to run concurrently.

It will be pertinent to note here that the trial against five co-accused of the appellants had proceeded and when the same was at the fag-end, the prosecution agency submitted charge-sheet against the present appellants, namely Hemraj and Gyarsi Ram on 20.07.2005.

The five co-accused of the appellants, namely, (i) Radheyshyam, (ii) Rishiraj @ Rubia, (iii) Sitaram @ Ruggha, (iv) Chhitar, and (v) Ramchandra @ Chandriya were separately tried by the Court of Additional District & Sessions Judge (Fast Track), Jhalawar and were convicted and sentenced vide judgment dt. 18.10.2005.

To assail their conviction and sentence, accused- Hemraj and Gyarsi Ram have preferred two separate appeals, i.e. D.B. Criminal Appeal No. 314/2006 and D.B. Criminal Appeal No. 485/2006 respectively.

D.B. Criminal Appeal No. 1011/2005 was preferred by five co-accused of the appellants, namely (i) Radheyshyam, (ii) Rishiraj @ Rubia, (iii) Sitaram @ Ruggha, (iv) Chhitar, and (v) Ramchandra @ Chandriya and, vide a separate order of even date, we have acquitted five co-accused of the appellants

So far as the present two appellants are concerned, solitary injured eye-witness-Devkaran (PW-7) has deposed against these two appellants. Even though against five co-accused he had turned hostile and stated that he is not in a position to identify the assailants.

Case of the prosecution rests upon ''parchabayan'' (Exhibit-P/16-A) made by deceased Rampal which has been treated as dying declaration and the oral dying declaration made by the deceased Rampal to his brother Jagannath (PW-2), Ram Singh (PW-5), Mouzi Ram (PW-8), Babulal (PW-1) and Naina Ram (PW-3) respectively.

We have been called upon to determine the authenticity and veracity of the dying declaration (Exhibit-P/16-A) made by Rampal, deceased to Nandkishore (PW-20) and also the oral dying declaration made by above named five persons i.e. Jagannath (PW-2), Ram Singh (PW-5), Mouzi Ram (PW-8), Babulal (PW-1) and Naina Ram (PW-3) respectively.

We shall determine the veracity of Parchabayan/dying declaration (Exhibit-P/16-A), in view of the medical evidence led by the prosecution and the determine, whether deceased Rampal was in a fit condition to make the dying declaration or not?

We shall also, in view of evidence of the Investigating Officer, Nandkishore (PW-20) examine, whether deceased Rampal had made oral dying declaration to the five witnesses or not? And whether it is safe to place implicit reliance to uphold conviction of five persons based on the testimonies of five witnesses examined regarding oral dying declaration.

In the present case, occurrence had taken place on 15.12.2004 at 07:00 A.M.

Nandkishore (PW-20) in Court had stated that on the day of occurrence i.e. on 15.12.2004 he was posted as Station House Officer, Police Station, Sarolakalan. At about 12:30 P.M. Jagannath (PW-2), brother of deceased arrived at the Police Station and orally informed that his brother Rampal has been injured and they are carrying him to the Hospital, Khanpur. After relaying above information, Jagannath (PW-2) left the Police Station.

Nandkishore (PW-20), being Station House Officer recorded this fact in "Rojnamcha" and the same has been proved on record as Exhibit-P/15-A. After Jagannath (PW-2) had given the above information, Nandkishore (PW-20) reached at hospital, and recorded statement of deceased (Exhibit-P/16).

The statement of deceased, (Exhibit-P/16-A), so recorded, when translated into English reads as under:-

"Statement of Rampal s/o Kanwar Lal, by caste Gurjar, aged about thirty-years, resident of Kherkheda, under treatment, CHC Khanpur, dt. 15.12.2004, time 01:30 P.M. Police Station, Sarolakalan.

"Stated that today at about 07:00 A.M. after taking a bull from Pipliya, I was going to Kherkheda. Near the bank of river between Hatoli and Akavad close to the big lake, Radheyshyam, Hemraj, Rishia, Ramchandra, Sitaram and Chhitar met me. They were armed with gandasi. They stopped me and gave beating to me with gandasis, due to which, I sustained injuries on the various parts of body and I became unconscious there and later-on become conscious at the hospital. Gyarsi was also accompanying them. I was staying with Mandu. Accused had a dispute with Mandu and for this reason, they have caused me and Devkaran s/o Radhakrishan injuries. Due to injuries sustained, I am not able to bear pain. Parcha-bayan has been read, heard and the same is correct.

LTI Rampal"

On the basis of above statement at 02:15 P.M. a criminal case, bearing F.I.R. No. 240/2004 was registered at Police Station, Sarolakalan for offences under Secs. 147, 148, 149, 341, 323 and 307 I.P.C.

It is to be noted here that Dr. R.C. Pankaj (PW-16) in Court had stated that since the condition of Rampal was precarious, he was not medico-legally examined, and was immediately referred to the hospital at Jhalawar.

We shall further notice that immediately at around 01:30 P.M. when deceased was referred to the hospital at Jhalawar, on the way, he died at 02:20 P.M This fact is borne from the copy of report bearing No. 493, dt. 15.12.2004, noted in the "Rojnamcha" (Exhibit-P/18-A). Thus, after recording of statement (parcha-bayan) at 01:30 P.M., deceased died after fifty minutes.

Dr. R.C. Pankaj (PW-16) (herein after called "the Doctor") in Court further stated that on 15.12.2004, he was posted as Medical Officer at Community Health Centre, Khanpur. He had conducted an autopsy on the dead-body of Rampal on the same day at 03:00 P.M.

The Doctor had found the following eight injuries on the person of deceased Rampal:-

Lacerated wound 1x0.5 cm x skin deep - vertex.

Abrasion left frontal area - 1 x 0.5 cm.

Abrasion outer part of left eye brow 0.5 x 0.5 cm.

Incised wound 2.5x1 cm x muscle deep outer part of middle of right arm. Horizontal

Lacerated wound right elbow outer aspect 5x2.5 cm muscle deep.

Incised wound 1 x 0.5 cm x muscle deep left - front side of leg

Abrasion outer part of left knee joint 0.5 cm x 0.5 cm.

Lacerated wound 0.5 cm x 1 cm muscle deep left ankle joint.

On internal examination, the Doctor opined that scalp was intact. There was haematoma of size 5x3 cm on left frontal bone. There was another haematoma of size 10x5 cm at middle of scalp (vertex). There was fracture of left frontal bone. There was a fracture of middle of scalp (vertex).

The Doctor further opined that membrane and brain were congested. Pleurae, Larynx, Trachea and Bronchi were also congested.

According to this witness, cause of death was injuries caused on head and other parts of the body, which led to hemorrhage shock and excessive bleeding.

The medical condition of Rampal, deceased was precarious and he had suffered extensive damage to his brain. There were two haematoma present. There was fracture of left frontal bone and middle of scalp (vertex).

Furthermore, the Doctor has specifically said that the deceased was not fit to make a statement. The Doctor went to the extent of saying that for recording the statement of Rampal, the deceased, Investigating Officer had sought his opinion on an application (Exhibit-D/3-A) and the application (Exhibit-D/3-A) at point C to D contains his signature. He had written there that "the injured was in semi-coma and was not capable to make statement". He had referred him to Jhalawar Hospital.

Being important feature of the case to be precise, we will produce exact portion of the cross-examination of statement of Doctor, R.C. Pankaj (PW-16) in vernacular:-

Nandkishore (PW-20), S.I./S.H.O., Police Station, Sarolakalan, in his cross-examination admitted that "he had presented application (Exhibit-D/3) and the note of the Doctor thereupon is marked at point A to B."

We will reproduce here a part of the cross-examination from the statement made by Nandkishore (PW-20), being Investigating Officer as under:-

A perusal of Exhibit-D/3-A clearly reveals that on 15.12.2004 at 01:30 P.M. at the time when statement (Exhibit-P/16-A) was recorded, the Doctor has specifically opined that Rampal was not in fit condition to make statement.

Further a perusal of the opinion, Exhibit-D/3-A clearly reveals that the Doctor opined that both the patients were serious (semi-coma) and, therefore, he is unable to give consent. In view of medical condition of deceased Rampal, opinion of the Doctor that he is unable to make statement and document (Exhibit-D/3-A), we have no hesitation to hold that Exhibit-P/16-A is a concocted document by the Investigating Officer.

Furthermore, it stand concluded by the medical evidence that Rampal, the deceased, was not in a position to speak. Therefore, a false document was created by Nandkishore (PW-20). Hence, we shall exclude, Exhibit-P/16-A, the dying declaration, from consideration.

Jagannath (PW-2) in Court stated that about five months ago, he had left his Village along with milk for Sarolakalan. After delivery of milk when he was returning from Sarolakalan, Ram Singh (PW-5) met him and he informed him that his brother has been injured by Sitaram, Gyarsi Ram, Chhitar, Rishiraj, Radheyshyam and Ramchandra @ Chandria. Then the witness went to the Police Station and lodged report. Thereafter, he was informed by his brother that all the seven accused caused injuries to him and Devkaran.

So far as first part regarding information given by Ram Singh is concerned, it is a hearsay evidence.

So far as second part that the deceased, Rampal had informed the witness (Jagannath-PW-1) that injuries were caused to him by the accused is concerned, the prosecution has placed reliance upon this fact to urge that same is oral dying declaration.

Ramsingh (PW-5) also stated in the Court that he heard cries of Rampal, the deceased and went to the spot there the deceased informed that all seven accused caused injuries to him.

To the similar effect is the statement of Mauzi Ram (PW-8), Babulal (PW-1) and Naina Ram (PW-3) respectively.

We may notice here that in the dying declaration (Exhibit-P/16-A), which we have disbelieved, it is stated by the deceased that after sustaining injuries, he became unconscious and regained consciousness at the hospital. If that is so, there was no occasion for the deceased to make an oral dying declaration to these witnesses.

Since we have disbelieved the dying declaration (Exhibit-P/16-A), we ignore this fact at this stage and shall test sterling quality of the deposition of the witness by referring to the various documents on record.

Exhibit-P/15-A is a true copy of the Daily Diary Report, bearing No. 489, dt. 15.12.2004 as noted in the Rojnamcha of the Police Station, Sarolakalan.

Exhibit-P/15-A when translated into English reads as under:-

"I Jagnnath S/o Kanwar Lal, by caste Gurjar, resident of Kherkheda and Ram Singh present at the Police Station. Jagannath inform that my brother, Rampal has been beaten and caused injuries. We are taking him for treatment to the hospital Khanpur. Informant left after giving information. Information recorded. Action shall be taken.

Signed Ramnarain, Head Constable

A perusal of Exhibit-P/15-A clearly reveals that Jagannath was accompanied by Ram Singh. Had an oral dying declaration been made to Jagannath and Ram Singh, they would have relayed the names of the accused to the Police. Ram Singh (PW-5) has categorically stated that after hearing cries of Rampal, he was attracted to the spot; Rampal had informed him about the names of the accused who had given him beating and caused injuries.

It is important to note here that Jagannath (PW-2) and Ram Singh (PW-5) all were present in the hospital along with Rampal and Devkaran, injured. They had also not disclosed to Nand Kishore (PW-20) that Rampal has disclosed to them i.e. the names of assailants.

Thus, we have no hesitation to hold that Jagannath (PW-2), Ram Singh (PW-5), Mouzi Ram (PW-8), Babu Lal (PW-1) and Bhimraj (PW-11) had no information as to who had caused injuries till death of Rampal; later on these witnesses were introduced as persons before whom Rampal had allegedly made a dying declaration.

We also cannot be oblivious of the fact that extensive harm was caused on head of deceased. There was presence of two haematoma beneath the scalp. The frontal bone and top of scalp were fractured and the membrane and brain were congested. Therefore, immediately after sustaining the injuries, the deceased would have become unconscious. Therefore, no margin can be extended to the prosecution to hold that the deceased was not in a state of concussion. The medical condition of the deceased also over rules the making of the statement by the deceased leading to oral dying declaration before the witness.

We also cannot ignore that in the present case, investigation is tainted and the Investigating Officer created document (Exhibit-P/16-A), therefore, we shall also doubt or the oral assertion of the witnesses regarding authenticity of oral dying declaration.

Once we ignore, Exhibit-P/16-A the dying declaration, and the oral dying declaration made to the witness, we are left with testimony of injured eye-witness, Devkaran (PW-7).

It is admitted by Nand Kishore (PW-20), in cross-examination that he had recorded statement of Dev Karan (PW-7), after six/seven days, as he was referred to Jhalawar. The Investigating Officer gave an explanation that since he was busy in law and order, he could not record statement of Devkaran (PW-7).

Devkaran (PW-7) in the Court stated that Radhey Shyam had caused ''gandasi'' blow on his head near the ear. This witness further stated in the Court that as many as seven persons, namely, Hemraj, Radhey Shyam, Rishiraj, Gyarsiram, Ramchandra, Chhitarlal and Sitaram armed with lathi and gandasi and caused injuries to deceased Rampal.

In cross-examination, this witness admitted that in the earlier trial against five co-accused, he had not supported the prosecution case and had stated that it was not known to him as to who had caused injuries to him and Rampal, deceased.

It is pertinent to reproduce here an exact portion of cross-examination of Devkaran (PW-7) as under:-

Vide a separate judgment of even date, rendered in case of Radhey Shyam and Others vs. State of Rajasthan, (D.B. Criminal Appeal No. 1011/2005), we have acquitted five co-accused considering the statement of the witness that the names of the assailants were not known to him.

Be that as it may, since we have to confine to the evidence of witnesses in this case alone, admission made by the witness that in earlier case, he has stated that names of assailants were not known to him, we can safely say that Devkaran (PW-7) is not a reliable witness

Devkaran (PW-7), in the occurrence had suffered a simple injury behind the ear on the mastoid region. This witness in the Court in earlier trial stated that after he sustained injury, both he and Rampal, the deceased became unconscious, and as to who caused him injury, he is not in a position to identity the assailants.

Once, we discard dying declaration, (Exhibit-P/16-A), evidence of oral dying declaration and there is nothing for us to rely upon testimony of Devkaran (PW-7) who had not supported the prosecution case in earlier trial and was declared hostile, as he has not identified the co-accused of present appellants as assailants and had categorically stated that due to dark he could not identify the assailants, nothing remain with the prosecution to defend the impugned judgment.

Taking totality of circumstances, which have emerged and noted herein above, we are not in a position to sustain the judgment of conviction, and order of sentence pronounced by the trial Court against the appellants. Hence, the same are, hereby, set aside.

Resultantly, both the appeals preferred by the present appellants are accepted and they are acquitted of the charges.

Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- [Rupees Twenty Thousand Only] and a surety bond in the like amount, before the trial Court. The bonds, so furnished shall be effective for a period of six-months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon''ble Apex Court. The amount of fine, so imposed, shall be paid as compensation to the legal heirs of the deceased.

Let a copy of this order be placed in the connected appeal.