Ramesh Kumar and Others vs State of Rajasthan

Vijay Bishnoi, J.—This appeal is directed against the judgment dated 26.04.2007 passed by Additional Sessions Judge, Rajgarh, District Churu (for short ''the trial court'' hereinafter) in Sessions Case No. 27/204, whereby the trial court has convicted the accused-appellants for the offence punishable under section 302/34 IPC and sentenced each of them to undergo life imprisonment and to pay a fine of Rs. 5000/- each, in default of payment of fine, further to undergo six month''s imprisonment.

Brief facts, necessary for disposal of this appeal, are that PW. 1 Leela Ram s/o. Hemraj has submitted a written complaint to the Station House Officer, Police Station, Hamirwas on 29.05.2004 at about 10:00 P.M. at village Bhensli, inter alia, alleging therein that today at 8:30 P.M. Rajesh, Ramesh and Veerender sons of Shiv Lal by caste Jat, resident of Bhensli and one another person has killed his brother Pawan Kumar s/o. Hemraj by lathis, iron rods and farsi. It is stated that the said incident has happened at public chowk (Dudiyan-ka-chowk) and his brother was killed due to old transaction and personal disputes. It is also stated that when his brother was being assaulted at the public chowk by iron rods, then at that time, Om Prakash s/o. Popa Ram, Prakash s/o. Fateh Singh and Ramesh s/o. Satyaveer were also present there and they witnessed the incident. Rajesh armed with Farsi, Ramesh armed with iron rod, Veerender armed with pipe. It is further stated that Om Prakash and Prakash caught hold of Veerender and Ramesh then Veerender asked Rajesh to assault them with Farsi and due to fear, Om Prakash and Prakash released them. It was informed that dead body of brother of the complainant is lying in the public chowk. It is also alleged that three days before the incident, Shiv Lal son of Ram Lal came to their field and threatened that Pawan Kumar has assaulted Rajesh and, therefore, he and his sons would kill Pawan Kumar within three days and today they have killed Pawan.

On receiving this report, FIR No. 88/2004 (Ex. P/30) was registered at Police Station, Hamirwas against Rajesh, Ramesh, Veerender sons of Shiv Lal and one unknown person for the offence punishable under section 302/34 IPC. After investigation, the police has filed charge-sheet against three persons viz. Rajesh, Ramesh son of Shiv Lal and Rajkumar son of Phoolchand, resident of village Dohki, District Bhiwani, Haryana for the offence punishable under section 302/34 and 4/25 of the Arms Act. It is noticed that the police has not filed charge-sheet against Veerender son of Shiv Lal.

The trial court has framed charges against Rajesh, Ramesh and Rajkumar for the offence punishable under section 302/34 IPC. After recording the statements of four witnesses viz. PW. 1 Leela Ram, PW. 2 Prakash Singh, PW. 3 Om Prakash and PW. 4 Sukhvinder, an application under section 319 Cr.P.C. was preferred on behalf of the prosecution for summoning appellant Veerender s/o. Shiv Lal and Shiv Lal s/o. Ramji Lal with prayer for facing trial and the trial court vide order dated 28.10.2004 has partly allowed the said application and summoned the appellant Veerender s/o. Shiv Lal to face the trial for the offence punishable under section 302/34 IPC along with other appellants. Statements of PW. 1 to PW. 4 were again recorded and thereafter the prosecution has examined nine more witnesses. Statements of the appellants were recorded under section 313 Cr.P.C. and four witnesses have also been produced in defence. Several documents have been exhibited on behalf of the prosecution as well as the defence. The trial court after hearing the parties concerned, vide judgment dated 26.04.2007 has convicted the accused-appellants for the offence punishable under section 302/34 IPC and sentenced them as aforesaid.

Assailing the judgment dated 26.04.2007, the learned counsel for the appellants has submitted that the trial court has grossly erred in convicting and sentencing the appellants for the offence punishable under section 302/34 IPC. It is argued that the testimonies of so called eye-witnesses viz. PW. 1 Leela Ram, PW. 2 Prakash Singh and PW. 3 Om Prakash are not believable, however, the trial court has erred in placing reliance on the testimonies of the said witnesses. It is further argued that in fact PW. 1 Leela Ram, PW. 2 Prakash Singh and PW. 3 Om Prakash did not see the incident and they have falsely implicated the accused-appellants due to old enmity. It is also argued that the alleged eyewitnesses PW. 1 Leela Ram, PW. 2 Prakash Singh and PW. 3 Om Prakash are close relatives of the deceased and they are interested witnesses and, their testimonies cannot be relied. It is further contended that the prosecution has failed to produce any independent witness, though as per the prosecution, Pawan Kumar was killed at public chowk of village Bhensli, where several houses are situated but the police has not produced any independent witness and produced only close relatives of the deceased, who are highly interested.

Learned counsel for the appellants has further argued that initially in the FIR and his statement recorded under section 161 Cr.P.C., PW. 1 Leela Ram did not name the appellant Rajkumar s/o. Phoolchand as accused but later on, he was named as accused, though he was not present at the scene of offence. It is also contended that appellant-Veerender has also been falsely implicated in this case because the police after thorough investigation has concluded that on the day of the incident, Veerender was not in the village and he was at his maternal home (Nanihal) at village Ardawata, District Jhunjhunu. Learned counsel for the appellants has argued that the learned trial court has not even discussed the evidence of the defence witnesses viz. DW. 1-Mahendra Singh, DW. 2-Karan Singh, DW. 3-Ramjilal and Dw. 4-Dalu Ram, who have specifically stated that on the day of the incident, appellant-Veerender was not present at village Bhensli. Learned counsel for the appellants has further argued that the recovery of the weapon, at the instance of the appellants, is highly doubtful as one of the witnesses of recovery viz. PW. 7-Sumer Singh son of Jai Lal has not stated in his statement that the recovery memos Ex. P/18, Ex. P/20 and Ex. P/22 were prepared in his presence. The learned counsel for the appellants has also argued that from FSL Report Ex. P/41, it is clear that no blood was found on the iron rod recovered at the instance of the appellant Ramesh and, therefore, the appellant-Ramesh cannot be said to be involved in the commission of crime. It is further argued that from the prosecution evidence, it is clear that the deceased Pawan Kumar was having criminal record and having enmity with several other persons and, therefore, there is possibility that some unknown persons have killed him, however, on account of animosity with the appellant-Rajesh, he and his family members have falsely been implicated in this case by the relatives of the deceased.

On the strength of the above arguments, learned counsel for the appellants has prayed that the impugned judgment dated 26.04.2007 passed by the trial court may be set aside and the appellants may be acquitted.

Per contra, learned Public Prosecutor as well as the counsel for the complainant have vehemently argued that from the statements of the eye-witnesses PW. 1 Leela Ram, PW. 2 Prakash Singh and PW. 3 Om Prakash, it is fully proved that on 29.05.2004 at about 8:30 P.M., appellants having iron rods, lathis and pipes had assaulted the deceased-Pawan and on account of that, he died on the spot. It is contended that simply because the eye-witnesses are relatives of the deceased, their testimonies cannot be discarded when they have specifically stated that they have seen the incident. It is further argued that the statements of the eyewitnesses were corroborated by another witness PW. 4 Sukhvinder and the statements of the Investigating Officer PW. 13 Karan Singh and, therefore, it cannot be said that the appellants have falsely been implicated. It is also argued that the recovery of the weapons of crime, at the instance of the accused-appellants, is clearly proved by the statements of PW. 8 Ved Prakash s/o. Popa Ram and PW. 13 Karan Singh - Investigating Officer and, therefore, even if the witness PW. 7 Sumer Singh has not stated about the recovery memos, it will not make any difference because the another witnesses of the recovery PW. 8 Ved Prakash and PW. 13 Karan Singh - Investigating Officer have proved the said fact. It is also argued that the presence of appellants - Rajkumar and Veerender is fully proved by the testimonies of the eye-witnesses and therefore, it cannot be said that appellant-Rajkumar and Veerender were not involved in the commission of crime.

On the strength of the above arguments, learned Public Prosecutor as well as the counsel appearing on behalf of the complainant have prayed that this appeal may be dismissed.

Heard learned counsel for the rival parties and carefully examined the record of the case.

The prosecution has produced PW. 1 Leela Ram, PW. 2 Prakash Singh, PW. 3 Om Prakash as eye-witnesses of the incident. PW. 4 Sukhvinder, though has not witnessed the incident, but has stated that he has seen the accused-persons running after committing the crime. All the eye-witnesses viz. PW. 1 Leela Ram, PW. 2 Prakash Singh and PW. 3 Om Prakash in their court statements have named all the four appellants. However, it is noticed that PW. 1 in his statement has clearly stated that he presented the written report to the Station House Officer, Police Station, Hamirwas at village Bhensli at 10:00 P.M. PW. 13 Karan Singh-Investigating Officer, the then S.H.O., Police Station, Hamiwas has also stated that PW. 1 Leela Ram presented the written report (Ex. P/1) at village Bhensli and in the said report, appellant-Rajkumar s/o. Phoolchand has not been named as an accused. It is also noticed that Panchnama Lash (Ex. P/3) was prepared at 11:15 P.M., which was signed by PW. 7 Sumer Singh son of Jai Lal, PW. 3 Om Prakash s/o. Popa Ram, PW. 8 Ved Prakash s/o. Popa Ram, Subhash Chandra s/o. Surja Ram and PW. 1 Leela Ram. In Ex. P/3, it is mentioned that the death of Pawan Kumar was caused due to beating by Rajesh, Ramesh Veerender and one unknown person with lathis and iron rods. The statements of PW. 1 Leela Ram under section 161 Cr.P.C. (Ex. D/1) were also recorded on 29.05.2004, wherein also, he had specifically named Rajesh, Ramesh and Veerender but had not named Rajkumar as accused. However, the statements of PW. 2 Prakash Singh and PW. 3 Om Prakash under section 161 Cr.P.C. (Ex. D/2 and Ex. D/3 respectively) have also been recorded on 29.05.2004 and in those statements, they have not named the appellant Rajkumar as accused along with other appellants. No time is mentioned on Ex. D/1 to Ex. D/3 but only date i.e. ''29.05.2004'' is mentioned.

From the above facts, it is clear that at the time of presentation of complaint (Ex. P/1) by PW. 1 Leela Ram and up to the preparation of Panchnama Lash of dead body (EX. P/3) at 11:15 P.M. on 29.05.2004, name of the appellant Rajkumar was not figured as accused. Two of the eye-witnesses viz. PW. 1 Leela Ram and PW. 3 Om Prakash are also the witnesses of the Panchnama Lash (Ex. P/3), however, they have not named the appellant Rajkumar as accused. PW. 1 Leela Ram has specifically admitted in his court statement that Ex. P/1 was written by PW. 7 Sumer Singh s/o. Jai Lal at Sumer Singh''s house in the presence of family members. As per his statement, the other witnesses PW. 2 Prakash Singh and PW. 3 Om Prakash were also present at the time of presenting the complaint and at the time of preparation of Panchnama Lash but none has named the appellant - Rajkumar as accused. For the first time, name of the appellant - Rajkumar was figured in the statement of PW. 2 Prakash Singh and PW. 3 Om Prakash recorded under section 161 Cr.P.C., however, no time is mentioned on the said statements. Thus, from the above facts, it can be gathered that after the said incident, PW. 1 Leela Ram and other eye-witnesses along with the relatives were not sure about the fourth accused but later on after deliberation have named the appellant-Rajkumar as fourth accused. In his court statement, PW. 1 Leela Ram has named the appellant-Rajkumar as accused, however, at the time of presentation of Ex. P/1 and at the time of recording his statement under section 161 Cr.P.C., he did not name the appellant-Rajkumar. The said part of court statement of PW. 1 Leela Ram cannot be believed because the other eyewitnesses viz. 2 Prakash Singh and PW. 3 Om Prakash were throughout with him and it is not possible that they had not told him about name of fourth accused. It is also noteworthy that PW. 3 Om Prakash s/o. Pappa Ram was a witness to the Panchnama Lash (Ex. P/3), however in Ex. P/3, name of appellant-Rajkumar has not been mentioned as accused. If he was aware about the name of the appellant-Rajkumar at the time of preparation of Ex. P/3, the same would have been mentioned in the said document.

Looking to the above circumstances, we are of the opinion that the prosecution has failed to prove that at the time of incident, the appellant Rajkumar s/o. Phoolchand was present at the place of occurrence.

So far as appellant - Veerender is concerned, the police has not found his involvement in commission of crime and therefore, has not filed any charge-sheet against him. Later on, the trial court while exercising powers under section 319 Cr.P.C., has summoned the appellant - Veerender to face the trial along with other accused-persons after recording of the statements of PW. 1 to PW. 4. In his statement under section 313 Cr.P.C., appellant-Veerender has stated that on the day of the incident, he was not in the village Bhensli and was at village Ardawata and he has falsely been implicated on account of enmity. DW. 1 Mahendra Singh, who happened to be the maternal uncle of Veerender has also specifically stated in his statement that on the day of the incident i.e. 29.05.2004, appellant-Veerender was at village Ardawata. DW. 2 Karan Singh, who is also happened to be the maternal uncle of the appellant-Veerender has stated that on the day of the incident i.e. 29.05.2004, the appellant-Veerender was at village Ardawata and he was apprehended by the police from Ardawata on 30.05.2004. DW. 3 Ramji Lal s/o. Sukh Ram has also stated that Veerender was living with Karan Singh at the time of murder of Pawan Kumar at village Bhensli. DW. 4 Dalu Ram, Station House Officer of Police Station, Rajgarh has verified the investigation conducted by PW. 13 Karan Singh and also asserted that during the course of investigation, involvement of Veerender in the commission of crime has not been found proved.

Learned trial court has not discussed the statement of appellant-Veerender recorded under section 313 Cr.P.C. and has also not discussed the evidence of DW. 1 to DW. 4. Though the eye-witnesses PW. 1 to PW. 3 and another witness PW. 4 have specifically named the appellant-Veerender but the police has not found his involvement in the commission of crime and concluded that on the day of the incident, he was at village Ardawata and the defence witnesses have verified the said fact. As per the material available on record, there was enmity between the deceased Pawan Kumar and Rajesh on account of some financial transaction between them and there are all possibilities that the appellant - Veerender has falsely been implicated by the family members of the deceased as he was brother of appellant-Rajesh.

In such circumstances, we are of the opinion that the defence has sufficiently proved that on the day of the incident, the appellant-Veerender was not present on the scene of crime and he was at village Ardawata, District Jhunjhunu and the trial court has erred in convicting the appellant-Veerender under section 302/34 IPC.

So far as appellants - Rajesh Kumar and Ramesh Kumar are concerned, the eyewitnesses specifically named them and recovery of Farsi at the instance of appellant - Rajesh and recovery of iron rod at the instance of appellant Ramesh have also been proved by the prosecution by producing witnesses viz. PW. 8 Ved Prakash and PW. 13 Karan Singh, the Investigating Officer. Though the blood stains have not been found on the iron rod recovered from the appellant-Ramesh but the said fact is not sufficient to hold him not guilty when the other cogent and reliable evidence regarding involvement of him in commission of crime is available on record.

In view of the above discussions, this appeal is partly allowed.

Appellants-Veerender and Rajkumar are acquitted from the offences punishable under section 302/34 IPC. The conviction and sentence awarded to appellants-Veerender and Rajkumar by Additional Sessions Judge, Rajgarh, District Churu vide impugned judgment dated 26.04.2007 are hereby quashed. They are on bail, their bail bonds are discharged.

However, the conviction and sentence awarded to the appellants - Ramesh Kumar and Rajesh Kumar by Additional Sessions Judge, Rajgarh, District Churu vide impugned judgment dated 26.04.2007 are maintained.

Keeping in view the provisions of section 437A Cr.P.C., the accused-appellants Veerender and Rajkumar are directed to forthwith furnish personal bonds in the sum of Rs. 20,000/- each along with one surety bond of like amount each before the Additional Sessions Judge, Rajgarh, District Churu, 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 - Veerender and Rajkumar, on receipt of notice thereof, shall appear before Hon''ble Supreme Court.