Narain Soni vs State of Rajasthan

P.C. Jain, J.—This appeal u/s 374(2) Cr. P. C. is directed against the judgment dated 24-1-1994 passed by the learned Additional Sessions Judge No. 2, Sri Ganganagar whereby the learned Addl. Sessions Judge has convicted the accused-appellants for the offence u/s 302/34 IPC and sentenced each of them to undergo rigorous imprisonment for life together with a fine of Rs. 500/- each and in default of payment of fine to further under go simple imprisonment for six months.

The case of the prosecution briefly stated is that on 13-12-1992, P. W. 7 Subhash Chandra, his brother Diwanchand, Om Prakash Middha and Om Prakash Verma were proceeding to Hospital through the Jail Road to meet somebody. When they reached near the house of Jagdish Kamara, they found Jagdish Kamara standing outside his house and on seeing them, he asked them to wait as he was also coming. Thereupon, they stayed and waited for Jagdish Kamara. After a minute or two, Jagdish Kamara came out from his house alongwith Subhash, Narayan Soni and Ratan Swamy and exhorted Narayan Soni to take revenge as his enemy had come. On this P.W. 7 Subhash Chandra and his brother Diwanchand and his associates took to heels. However, accused Ratan Swamy succeeded in taking hold of Diwanchand. Accused Subhash, who was armed with an empty bottle, assaulted Diwanchand on his head. After assault, the bottle broke into pieces. Thereafter, accused Subhash picked up a brick and threw it on the head of Diwanchand.

Thereafter, accused Narayan who was armed with a knife inflicted knife blows on the back and chest of Diwanchand, as a result of which, Diwanchand fell down. P.W.7 Subhash Chandra raised an alaram, thereupon the accused persons fled away from the scene of the occurrence and took shelter in the house of Jagdish Kamara. P.W. 7 Subhash Chandra, Om Prakash Middha, and Om Prakash Verma took Diwanohand in an auto rickshaw to the Hospitals and got him admitted. A written complaint of his incident was lodged by P.W. 7 Subhash, Chandra at Police Station, Sri Ganganagar: on 13-12-1992. Diwanchand died on the same day in the Hospital. His autopsy was got conducted by Dr. Om Prakash Sharma. According to the Doctor, Diwanchand died on account of shock and haemorrhage, which was caused on account of the injuries inflicted to him by knife on his chest. According to the Doctor, injury No. 1 was sufficient to cause the death in the ordinary course of nature. The post mortem report is Ex. P. 12.

On the basis of that report, the police registered a case u/s 302 read with Section 34 IPC and started investigation. P.W. 9 Pahad Singh., Incharge of the Police Station inspected the site in the presence of Motbirs and prepared the site plan and site inspection memos. He also picked up blood stained soil and controlled soil from the place of the occurrence and seized and sealed them vide Memos Ex. P. 20 and 21. He then arrested the accused-appellants.

It is alleged that on 16-12-1992 while in custody, accused Narayan Soni made a disclosure statement regarding the knife that was used in the incident. He stated that he had concealed the knife in his room beneath a box and that he was prepared to get the same recovered. Pursuant to the above disclosure statement, accused Narayan Soni got a knife recovered from his room, which was concealed beneath the box. The Investigating Officer seized and sealed the same vide Memo Ex. P. 24. All the seized articles were then deposited in the Police Station and later on they were picked up by a constable who was entrusted to take those articles from the Police Station and to deposit them in the Office of the Forensic Science Laboratory, Jaipur. The statements of the material witnesses were recorded and thereafter, a chargesheet was filed in the Court of Judicial Magistrate, Sri Ganganagar who committed the accused-persons to the Court of learned Sessions Judge for trial. The learned Sessions Judge transferred this case for trial and disposal to the Court of the learned Addl. Sessions Judge.

The learned trial Court framed the charge against the accused-appellants for the offence u/s 302 IPC or in the alternative u/s 302/34 IPC. The accused-appellants denied the charges and claimed to be tried. Thereupon, the prosecution examined as many as 10 witnesses in support of its case. The statements of the accused-appellants were recorded u/s 313 Cr. P.C. The accused-appellants did not produce any witness in their defence:

It may be stated here that at the trial, out of three alleged eye witnesses viz., P.W. 7 Subhash Chandra, P.W. 1 Om Prakash Middha and P.W. 2 Om Prakash verma, both Om Prakash Turned hostile. Thus, the whole prosecution case hinges on the sole testimony of P.W. 7 Subhash Chandra. The only circumstantial evidence against accused Narayan Soni is that a knife was recovered from his possession, in pursuance of the disclosure statement made by him u/s 27 of the Evidence Act while he was in custody and according to the Doctor, fatal injury could have been caused by such a weapon.

The learned Addl. Sessions Judge, appreciating the, evidence of the prosecution witnesses and further the incriminating evidence brought on record, came to the conclusion that the testimony of P.W. 7 Subhashchandra is reliable and his statement is corroborated by the recovery of knife from the possession of accused Narayan on the basis of information furtnished by him while he was in custody. He further came to the conclusion that that at the time when this incident happened, all the four accused persons were together and each one of them actively participated in the commission of offence, though in different way. He, therefore, convicted and sentenced the accused-appellants for the offence u/s 302/34 IPC as aforesaid.

We have heard Mr. Doongar Singh, the learned counsel appearing for the accused appellants and Mr. Vishal Raj Mehta, the learned Public Prosecutor appearing for the State and have carefully gone through the record of the case.

The learned counsel appearing for the accused-appellants has made a scathing attack on the reasons adopted by the learned Addl. Sessions Judge in holding the accused-appellants guilty of the offence u/s 302/34 IPC. He submitted that out of the three alleged eye-witnesses, two have turned hostile and the case of the prosecution entirely hinges on the testimony of P.W. 7 Subhash Chandra, who is the real brother of the deceased. The learned counsel referred to the prosecution evidence in detail and pointed but various contradictions and discrepancies in the prosecution story. He has strongly attacked the Investigating agency in booking the accused-appellants. According to him, it was a blind murder case in which Investigating agency arrested certain other persons viz., Praveen alias Bitii and Suresh alias Billu alias Babli. He submitted that when the prosecution case, as has been unfolded at the trial was consistent then what was the necessity of apprehending the above two persons. This clearly shows that it was a blind murder case and the Investigating agency first tried to apprehend two other person and thereafter booked these four innocent persons.-

The learned counsel then pointed out that according to P. W. 7 Subhash Chandra, on the date of the occurrence, they were proceeding to the Hospital to meet somebody but who this somebody was has not been disclosed by P.W. 7 Subhashchandra either in the FIR or before the Court during trial and or to any other witness. He submitted that it is in evidence that Subhash Chandra, Di wanchand and their associates inspite of going through a shorter way, preferred to go to the Hospital through the Jail road by a longer route. There was no justification forgoing through a circuitous route without any reason. When the prosecution witnesses were confronted with this story, P.W. 7 Subhash came out with an afterthought explanation that Deewanchand wanted to meet some person residing in one of the Jail Quarters and, therefore, they went through Jail Road. The person to whom Deewanchand wanted to meet has also not been disclosed.

The learned counsel has also wondered that when P.W. 7 Subhashchandra, P.W. 1 Om Prakash Middha and P.W. 2 Om Prakash verma lifted Deewanchand to the Hospital in an autorickshaw, their clothes were not stained with blood.

The learned Public Prosecutor appearing for the State has supported the prosecution case, as also the impugned judgment of the learned Addl. Sessions Judge.

We have considered the rival contentions made at the bar carefully and made a re-apparaisal of the whole prosecution case.

At the very outset, we may state that the learned counsel appearing for the accused-appellants has not disputed the fact that the death of Deewanchand was homicidal in nature. He has, however, contended that the whole prosecution case rests on the testimony of P.W. 7 Subhashchandra.

Before we embark upon the critical appreciation of the testimony of this witness, we may notice the fact that P.W. 10 Bhanwarsingh who investigated this case apprehenced the said Praveen and Suresh as accused-persons and these two persons were also sent to judicial custody. P.W. 10 Bhanwarsingh further admitted that he also wanted to arrest Pindi Sardar but since he was absconding, he could not be apprehended. This is a very material fact and has got a very material bearing on the appreciation of the prosecution evidence. This fact shows that, it was not a simple murder case as stated and alleged by P.W.7 Subhash. If it was such a simple case, the Investigating Officer P.W. 10 Bhanwarsingh would not have arrested these two persons in connection with the murder of Deewanchand. Thus, from this fact, the possibility as suggested by the learned counsel appearing for the appellants cannot be ruled out that perhaps it was blind murder case in which the police wanted to solve the case by arresting certain other persons on suspicion. This is in complete contradiction with the story put forth by P.W. 7 Subhash Chandra. According to P.W. 7 Subhash Chandra, Deewanchand was done to death by accused Narayan Soni in complicity with other accused-persons. The question, therefore, arises as to why P.W. 10 Bhanwarsingh arrested Suresh and Praveen and as to why he wanted to arrest Pindi Sardar. However, the Investigating officer did not furnish any explanation about this fact.

Be that as it may, we may now advert to the testimony of P.W. 7 Subhash Chandra. It may be stated here that P.W. 1 Om Prakash Middha and P.W. 2 Om Prakash Verma have turned hostile to the prosecution. We have gone through the statements of these two witnesses and can say at once that their statements are not reliable.

P. W. 7 Subhash Chandra has stated that on the date of the occurrence, he and his brother Deewanchand, Om Prakash Verma and Om Prakash Middha were proceeding to the Hospital to meet somebody through the Jail Road. At about 8.00 PM, they reached in front of the house of Jagdish Kamara. On seeing them, Jagdish Kamara told them to wait as he was coming. Thereafter, Jagdish Kamara Came out of his house along with accused Narayan Soni, Subhash and Ratah Swamy and he exhorted Narayan Stini to take: revenge as the enemy had come. On this, they took to their heels but Deewanchand was taken hold by accused Ratan Swamy. Accused Subhash assaulted with an empty glass bottle on the head of Deewanchand with some force. The glass bottle was broken into pieces. Thereafter, Subhash picked up a brick and assaulted it again on the head of Deewanchand. Thereafter, accused Narayan Soni who armed with a knife assaulted Deewanchand with knife on his chest and back. From the above, it is clear that P.W. 7 Subhash Chandra talks about the infliction of injuries in plural, Thereafter, P.W. 7 Subhash Chandra and his associates lifted Deewanchand in an autorickshaw to the Hospital.

The ocular statement of P.W. 7 Subhash Chandra is in direct conflict with the testimony of the Doctor. According to the Doctor, the deceased only sustained one ante mortem injury in the cavity of his 7th and 8th ribes. All other injuries were either contusions or abrasions. There was only one contusion of the size of, l-''/z" x 1/3" on the left parietal bone of the skull. If the testimony of P.W. 7 is believed then there ought to have been some other injuries on his head, as a result of the assault by empty glass bottle and then by brick. However, there was only one contused wound on the Head. The testimony of P.W. 4 Dr. Om Prakash Sharma cannot be disbelieved. Thus, if we check the ocular statement made by P.W. 7 Subhash Chandra, we find that he is not telling the truth. If we believe the testimony of P.W. 7 Subhash Chandra then there would have been some more injuries on the Head of Deewanchand. Further, the Investigating Officer would have found broken pieces of glass bottle or the brick at the place of the occurrence. P.W. 10 Bhanwarsingh has categorically stated that he did not find any pieces of broken glass on the place of the occurrence. Regarding brick, he stated that it was not necessary to pick up the same. Thus, this part o the testimony of P.W. 7 Subhash Chandra regarding assault by accused Subhash first by an empty glass bottle and then by a brick cannot be said to be correct as it is not corroborated either by the medical evidence or by the testimony of the Investigating Agency or any other witness.

Now, we may examine in depth the reason for P.W. 7 Subhash Chandra, P.W. 1 Om Prakash Middha and P.W.2 Om Prakash Verma alongwith Deepanchand in going to the place of the occurrence. Admittedly, P.W.7 wanted to go to the Hospital and he has clearly admitted that the shorter and straight way to go to. the Hospital was from Gangasingh Chowk. A road from Gangasingh Chowk goes straight way to the Hospital and the distance between Gangasingh Chowk and the Hospital Gate is only 100''. Inspite of adopting this shorter and straight route, P.W. 7 Subhash Chandra and his associates adopted a longer route through Jail Raod Quarters and they covered a distance of about 400 from Gangasingh Chowk. Naturally, the question arises as to why they abondoned the shorter route and adopted a longer route. During trial, P.W. 7 Subhash Chandra has come out with a case that his brother Deewanchand wanted to meet some body. However, this explanation was not furnished by P.W. 7 Subhash Chandra in his statement u/s 161 Cr. P.C. before the Police. Even in his examination-in-chief he did not come out with this case. This entirely leads to conclusion that his explanation was an after-thought. Moreover, this witness has not come with the truth and disclosed the identity of the person to whom they wanted to meet in the Hospital. This question assumes great significance in order to examine the veracity of this witness. When this witness did not explain the identity of the person of whom they wanted to meet in the Hospital, their presence at the place of the occurrence becomes doubtful.

It is, therefore, clear that P.W. 7 has not come with complete truth in narrating the whole story. Moreover, it is surprising that the clothes of the these three persons viz., P.W. 7 Subhash Chandra, P.W. 1 Om Prakash Middha and P.W. 2 Om Prakash Verma who bodily lifted Deewanchand to the Hospital in an autorickshaw did not stain with blood. Looking to the injuries sustained by Deewanchand, the injuries must have bled profusely. This further casts a doubt as to whether they physically lifted and took Deewanchand to the Hospital. In this context, it was the duty of the prosecution to have supplied the explanation as to why certain other loose ends remained. The prosecution story is silent as to how Deewanchand was admitted in the Hospital. Even the Hospital records have not been brought on record to show as to who brought Deewanchand to the Hospital.

Thus, in view of the above discussion made hereinabove, we do not find the testimony of P.W. 7 Subhashchand trustworthy to sustain the conviction of the accused-appellants. The prosecution hats failed to prove the offence of murder against the accused appellants beyond reasonable doubt.

We, therefore, accept this appeal, set aside the judgment dated 24-1-1994 passed by the learned Additional Sessions Judge No. 2,. Sri Ganganagar convicting sentencing the accused-appellants for the offence u/s 302/34 IPC and acquit them of the above offence. The accused-appellants Narayan Soni, Subhash Moyal, Ratan Swamy and Jagdish Kamara be set at liberty forthwith, if not required in any other case.

Let the record of this case be sent back to the learned lower Court forthwith.