Ravji vs State of Rajasthan

Gopal Krishan Vyas, J.

The instant cr. appeal under Section 374 Cr.P.C. has been filed by the accused appellant Ravji S/o. Onkar against the judgment dated 6.1.2006 passed by the learned Sessions Judge (Fast Track), Banswara in Sessions Case No. 64/2005 whereby the learned trial court convicted the accused appellant for offence under Section 302 IPC and passed sentence for life imprisonment alongwith fine of Rs. 1000/- and in default of payment of fine to further undergo 3 months RI and for offence under Section 397 IPC passed sentence for 7 years SI and under Section 449 IPC sentence for 5 years SI and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo three months SI. As per the facts of the case on 25.2.2005 the complainant Magan Lal P.W. - 15 submitted a first information report to the SHO, Police Station, Lohariya, District Banswara stating therein that they are two brothers and his younger brother Mitha Lal is living separately and his mother aged about 80 years is also living in their parental house. The younger brother was providing meal to his mother Kesar. The son of Mitha Lal; Gajendra used to sleep in his mother''s house with his grandmother. Last night as per daily routine his mother and Gajendra S/o. of his brother sleep in the house in the night but in the morning at about 7.00 p.m. Gajendra left the house of his grand-mother and come back to his house from where Smt. Babali W/o. Mitha Lal brother of the author of the F.I.R. went to the house of Smt. Kesar to provide tea where she saw that her mother-in-law is sleeping on a coat and upon removing Rajai she found injuries upon the body of Smt. Kesar, mother-in-law. Smt. Babali immediately called her husband Mitha Lal and Magan Lal (author of the FIR) and upon calling they went to the house of mother where they found that their mother died due to serious injuries sustained to her by unknown person and sliver ornaments which deceased Smt. Kesar used to wear were not found upon her body. As per the allegation in the F.I.R., some unknown person murdered his mother and stolen the sliver ornaments from the body of his mother.

Upon aforesaid complaint, the SHO, Police Station, Lohariya registered the F.I.R. No. 17/2005 and commenced the investigation. The Investigating Officer, after recording evidence under Section 161 Cr.P.C. and making recovery from the accused appellant arrested him vide Ex. P/26 and after recovery of ornaments and sword from him upon his information under Section 27 of the Evidence Act, filed charge-sheet against the accused appellant for offence under Sections 449, 302 and 397 IPC in the court of Judicial Magistrate, First Class, Gadi from where the case was committed to the District and Sessions Judge, Banswara and later on case was transferred by the District and Sessions Judge, Banswara to the court of Addl. Sessions Judge (Fast Track), Banswara.

The learned trial Court framed the charge under Sections 449, 302 and 397 IPC against the accused appellant and proceeded to record the evidence of prosecution witnesses and in this sequence recorded statements of 20 prosecution witnesses and 31 documents were exhibited in the trial. In the trial after recording prosecution evidence, the learned trial Court recorded statement of accused appellant under Section 313 Cr.P.C. in which he said that he is innocent and no offence has been committed by him. It is also stated that no information was given by him under which recovery of sword and ornaments are made. The police while giving threat took the thumb impression upon the paper from him but no offence of murder is committed by him. No evidence is produced by the accused appellant in defense.

The learned trial court after hearing both the parties finally convicted the accused appellant for the offence under Section 449, 302 and 397 IPC and passed the above sentence vide judgment dated 6.1.2006.

In this appeal, the appellant is challenging the validity of finding given by the learned trial court whereby accused appellant was convicted under Section 339, 302 and 397 IPC.

The learned counsel for the appellant vehemently argued that learned trial court has committed a gross error of law to convict the accused appellant for aforesaid offences because prosecution has failed to prove recovery of ornament and sword. In support of his argument, it is submitted that P.W. - 1 Sajjan Singh, P.W. - 2 Taran Chand and P.W. - 3 Shanker Lal, witnesses of recovery of ornament and sword turned hostile in the trial and did not support the prosecution case to prove the recovery from accused appellant. Further, submitted that the witness P.W. - 4 Bahadur turned hostile before whom the alleged extra judicial confession was made by the accused appellant, therefore, the conviction of the accused appellant upon the so called recoveries of ornament as well as sword is not acceptable because none of the prosecution witnesses proved recovery and turned hostile in the trail.

The learned counsel for the appellant submits that 3 witnesses P.W. - 16 Mitha Lal S/o. of deceased, P.W. - 17 Smt. Babali made allegations in their statements during trial that P.W. - 18 Gajendra Kumar who was usually sleeping with deceased informed that accused appellant caused injuries to his grandmother Smt. Kesar in the night by sword and this fact was disclosed by him soon after the occurrence to the mother P.W. - 17 Smt. Babali and this fact was disclosed by her to Magan Lal, the elder brother of her husband but in F.I.R. filed by Magan Lal P.W. - 15, no allegation was made by him in the F.I.R. and in the trial it was submitted that the injuries were caused by the accused appellant. More so, F.I.R. was filed by him against unknown person. The learned counsel for the appellant further argued that in the statement under Section 161 Cr.P.C. Recorded in the investigation none of the prosecution witnesses made allegation against the accused appellant with regard to inflicting injury by sword by the accused but in the court P.W. - 16 Mitha Lal, P.W. - 17 Smt. Babli, P.W. - 18 Gajendra improved their statements and made allegation of inflicting injury by the accused appellant in the night, therefore, the conviction cannot be based upon improvement in statement of prosecution witnesses.

The learned counsel for the appellant lastly argued that prosecution has miserably failed to prove its case beyond reasonable doubt. More so, in whole of the investigation no allegation was levelled by any of the witnesses, who are family members of the deceased Kesar and accused appellant for causing injuries and due to those injuries, deceased Kesar died but in the Court they made allegation of murder against the accused appellant, therefore, the conviction and sentence awarded to the accused appellant deserves to be set aside because the testimony of these witnesses is not trustworthy and reliable, the accused appellant has been implicated falsely in this case, therefore, the judgment impugned may be quashed.

Per contra, the learned Public Prosecutor vehemently argued that prosecution has proved its case beyond reasonable doubt by leading reliable evidence. P.W. - 18 Gajendra, who was 13 years of age on the date of occurrence has categorically stated in the statement during trial that the injuries were inflicted by the accused appellant to his grand-mother Smt. Kesar in the night on the date of occurrence and this fact was disclosed by him to his mother P.W. - 17 Smt. Babali in the morning and mother Smt. Babli stated in the statement that said information was given by her son Gajendra in the morning and later on aforesaid fact was disclosed to her husband Mitha Lal and Mitha Lal P.W. - 16 categorically stated in his statement in the Court that as per information given by P.W. - 18 Gajendra the accused appellant caused injury and his mother died, therefore, it cannot be said that prosecution has failed to prove its case beyond reasonable doubt. The learned Public Prosecutor further argued that although the witnesses of recovery of sword and ornament turned hostile before the court but Investigating Officer categorically stated in his statement that recovery was made from the accused appellant as per his information given under Section 27 of the Evidence Act, therefore, it is a case in which prosecution has proved the fact of recovery of weapon sword and sliver ornaments of the deceased from accused appellant. Therefore, there is no question to say that the learned trial court has committed any wrong while holding the accused appellant guilty for the alleged offence. The learned Public Prosecutor lastly argued that it is a case in which a innocent old lady was murdered only for some silver ornament by the accused appellant, therefore, no interference is called for in the finding given by the learned trial court in convicting the accused appellant for offence under Section 302, 397 and 449 IPC. Hence, this appeal may be dismissed.

After hearing the learned counsel for the accused appellant and learned Public Prosecutor, we have minutely scanned the evidence and considered the case on merit. It is not in dispute that hand written complaint (Ex. P/24) was filed by none-else then son of the deceased P.W. - 15 Magan Lal in which no allegations were leveled by him against accused appellant. The following written complaint (Ex. P/24) was submitted by the P.W. - 15 Magan Lal, which reads as under:

We have also perused the statement of P.W. - 15 Magan Lal in which no allegation is leveled by him against accused appellant more so it is stated by him that:

It emerged from the evidence that before submitting written report (Ex. P/24) the said Magan Lal, author of F.I.R. went on spot and meet his brother Mitha Lal and his wife Smt. Babali but no allegation was levelled by them which is evident from the F.I.R. It is also worthwhile to observe that in the statement of P.W. - 16 Mitha Lal, second son of deceased, P.W. - 17 Smt. Babali and P.W. - 18 Gajendra Kumar under Section 161 Cr.P.C. no allegation was levelled by them during investigation against the accused appellant for inflicting injury by sword in the night and removing ornaments but in the trial all these witnesses made allegation that on the date of incident P.W. - 18 Gajendra aged about 13 years was sleeping in the house of deceased Kesar and he saw the incident that accused appellant inflicted injury by sword but in the cross examination, a question was put to Gajendra in the cross-examination whether you have disclosed the fact of inflicting injury by the accused appellant to the police in his statement, then he said:

Meaning thereby, in the statements sole eye witness Gajendra recorded under Section 161 Cr.P.C. No allegation was made by him about inflicting the injuries by the accused appellant. Likewise P.W. - 17 Smt. Babali said in her statement that in the morning on 24.2.2005 her son Gajendra came back from the house of deceased Kesar and informed that accused appellant inflicted injury by sword and murdered her but this fact was not disclosed by the P.W. - 17 Smt. Babli in the statement recorded under Section 161 Cr.P.C., therefore, in the cross-examination, a question was put to her and for which following reply is given which reads as under:

The above fact of disclosure of incident by the witness Gajendra was not mentioned in the statement of Smt. Babli recorded under Section 161 Cr.P.C. but in the court it is stated by her that her son Gajendra informed her in the morning that accused appellant inflicted injury to his grandmother Smt. Kesar. It is also relevant to observe here that in the cross-examination Smt. Babali P.W. - 17 categorically said that the fact of inflicting injury by accused appellant was disclosed to the elder brother of her husband Magan Lal, but Magan Lal author of the F.I.R. did not make allegation against accused appellant in the report Ex. P/24 or in his statement in the Court as P.W. - 18.

After considering the aforesaid evidence made by the alleged so called eye witnesses and other witness of the family of the deceased, we are of 14 the opinion that it is beyond imagination that a son who filed report for murder of his mother will not disclose the fact of inflicting injury by accused appellant when other witnesses disclosed the fact of causing injuries by the accused appellant to the deceased Smt. Kesar much before filing written complaint by him. P.W. - 15 Magan Lal who is author of the F.I.R. neither made allegation in the written report (Ex. P/24) nor in the statement before the court, whereas he was present in the morning alongwith other witnesses, therefore, it is a case of improvement of evidence in the court by the witnesses to prove the allegation against the accused appellant. It is settled principle of law that it is the duty of the prosecution to prove its case beyond reasonable doubt but here in this case, in whole of the investigation, no allegation was leveled by author of the F.I.R. P.W. - 15 Magan Lal, P.W. - 16 Mitha Lal, other son of the deceased, P.W. - 17 Smt. Babali, daughter-in-law of the deceased and P.W. - 18 Gajendra Kumar, grand-son of deceased and for the first time in the court they made allegation to implicate accused appellant for the alleged offence of murder. In view of the above, it can be said safely that prosecution has failed to prove its case beyond reasonable doubt because all the witnesses of recovery of sword and ornaments turned hostile before the court and testimony of alleged eye witnesses is also not trustworthy because for the first time he made allegation against the accused appellant in the court, therefore, the accused appellant is entitled for benefit of doubt.

In view of the above discussion we find that finding given by the learned trial court to convict the accused appellant for offence under Section 302, 397 and 449 IPC are not sustainable in law. Therefore, while giving benefit of doubt to the accused appellant, the judgment impugned dated 6.1.2006 passed by the learned Addl. Sessions Judge (Fast Track), Banswara in Sessions Case No. 64/2005 is hereby quashed and set aside. The accused appellant Ravji S/o. Onkar may be released forthwith if not needed in any other case. Accordingly, this appeal is hereby allowed.