Sagarmal vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.

On 1.8.2006, in the night at about 11:30 PM, the dead body of Vinod Kumar S/o. Sohan Lal (P.W. 11) was found near the field of Aasa Ram (P.W. 8). On 2.8.2006, in the morning at about 5:30 AM, Sohan Lal S/o. Kajju Ram (P.W. 11) presented a written report (Exhibit-P/12) before Anand Yadav (P.W. 14).

Anand Yadav (P.W. 14) in the court stated that on the intervening night of 1st and 2nd of August, 2006, at 3:05 AM, he received a telephonic information from Head Constable, Bhanaram, In-charge of Police Post Khood that Sohan Lal (P.W. 11) appeared in the police post and informed that his son Vinod Kumar who went for doing labour work had not returned home. Therefore, Sohan Lal (P.W. 11) along with his another son Gopal searched for Vinod Kumar and had found his dead body near the field of Aasa Ram (P.W. 8).

The above information received was noted in the Daily Dairy Register which has been proved on record as Exhibit-P/16. It will be apposite here to reproduce English translation of daily dairy entry (Exhibit-P/16) recorded on 1.8.2006 at Police Station Losal at 3:05 AM, as under:--

"At Police Station Losal, District Sikar (Rajasthan)

After receipt of information, Anand Yadav, SHO, Police Station Losal along with police party reached at Police Post Khood, where Sohan Lal (P.W. 11) along with his son Gopal, were present. After taking the complainant, Sohan Lal (P.W. 11), Anand Yadav (P.W. 14) reached at the spot. Sohan Lal (P.W. 11) at the place of occurrence presented the written report (Exhibit-P/12).

In the written report (Exhibit-P/12) Sohan Lal (P.W. 11) stated that his son Vinod Kumar had been murdered. His son, Vinod Kumar had gone to mend boundary of the fields. When in the afternoon, he came to take meals at home, he was accompanied by Sagarmal S/o. Dhannaram. Both after taking meals had left the house. In the evening, Vinod Kumar had not returned and in the night the complainant along with his younger son Gopal had gone to search for his son. The dead body of Vinod Kumar was found near the fields of Aasa Ram (P.W. 8). After taking 7/8 persons, Sohan Lal (P.W. 11) had gone to Police Post Khood, from where the information was given to the Police Station Lalsol.

From the perusal of the Daily Diary Register (Exhibit-P/16) and the written report (Exhibit-P/12), it is apparent that in the earlier version, the complainant stated that his son Vinod Kumar had left the house to do labour work and had not returned, whereas in the written report (Exhibit-P/12) it was stated that his son, Vinod Kumar in the afternoon came along with Sagarmal to take meals and thereafter, both left the house together.

The present appeal has been filed by Sagarmal aggrieved against the judgment dated 3.7.2008, whereby he was convicted and sentenced by the court of Special Judge, SC/ST Cases (Prevention of Atrocities) Act, Sikar, for the offences under Section 302 IPC and Section 3(2)(5) of SC/ST Act and on both the counts, the appellant has been sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months R.I.

It is to be noted that the appellant was arrested vide memo Exhibit-P/7 on 4.8.2006.

The prosecution, in the present case to secure the conviction of the appellant had examined fifteen witnesses and has proved on record twenty-three documents from Exhibit-P/1 to Exhibit-P/23. Thereafter, the statement of the accused-appellant was recorded under Section 313 Cr.P.C. The accused pleaded not guilty and claimed innocence. In defence, the accused-appellant relied upon the documents Exhibit-D/1 to Exhibit-D/4, which are previous statements of the witnesses Sohan Lal, Rameshwar Lal, Pura Ram and Ramu Ram recorded by the police, under Section 161 Cr.P.C., respectively. The accused further relied upon the statement of Mahaveer Sharma recorded under Section 161 Cr.P.C., which has also been assigned Exhibit-D/2.

The prosecution has relied upon the following three pieces of evidence to bring home the guilt of the appellant:--

(a) The evidence of last seen, which has emerged in the testimony of Sohan Lal (P.W. 11), the father of the deceased Vinod Kumar, Harish Kumar @ Dugduga (P.W. 1), another Sohan Lal S/o. Dhanna Ram (P.W. 3) and Rameshwar (P.W. 4).

(b) The second piece of evidence relied by the prosecution is that at the time of arrest of the accused, the accused was wearing Shirt, which was stained with blood. The said shirt was taken into possession vide memo Exhibit-P/8.

(c) The evidence of two eyewitnesses, namely Pura Ram (P.W. 5) and Aasa Ram (P.W. 8), who purportedly had seen the accused causing injuries to the deceased, Vinod Kumar."

Evidence of Last Seen:

Harish Kumar @ Dugduga (P.W. 1) in the court stated that three months before his deposition in the court, in the night at 8:30/8:45 PM, he was present at liquor vend Khood. Sagarmal and Vinod Kumar came there. Sagarmal is present in the court. Both had already taken some liquor. They were having conversation with him. This witness told them to go away. Then both left the liquor vend. At that time, salesman of the liquor vend Mahaveer Singh was also present there.

In cross-examination this witness stated that Sagarmal and Vinod Kumar had stayed at his shop for one or two minutes. On that day he slept at the liquor vend. At the liquor vend, except him and Mahaveer no other person was present there. This witness further stated that Sagarmal and Vinod Kumar had no talks with him. He had only reprimanded them. This witness further stated that the police had recorded his statement after 5/6 days.

Sohan Lal S/o. Dhannaram (P.W. 3) in the court stated that he knew the accused. On 1.8.2006, at 9:30 PM, Sagarmal, Vinod kumar and Rameshwar came to him. Sagarmal demanded Rs. 200/- as labour charges from him. This witness gave Rs. 200 to Sagarmal. This witness further stated that he used to sell liquor. Sagarmal purchased liquor from him by paying Rs. 45 and at the back of his Chhan Sagarmal, Vinod Kumar and Rameshwar all three took liquor. Rameshwar also bought liquor worth Rs. 25. At 10:00 PM, he told them to leave the place and go to their respective houses.

Ramehwar (P.W. 4) in the court stated that on 1.8.2006, at about 6-7 PM, he had gone to the house of his brother Nathuram at Khood. At 9:00 PM he had gone to the shop of Girdhari Lal to purchase bidi. Sagarmal and Vinod Kumar were also present. They were both purchasing bidis. Thereafter, he, Vinod Kumar and Sagarmal went to the house of Sohan Bawari and there, they took liquor together. In the night at about 10:30/11:00 PM, they left the house of Sohan Bawari and then all three came towards the house of Aasaram (P.W. 8), this witness left both of them there. In the morning he learnt that Vinod Kumar has been murdered.

Sohan Lal (P.W. 11) father of the deceased, Vinod Kumar, in the court stated that in the afternoon, on the day of occurrence, Vinod Kumar and Sagarmal both came to the house to have their meals and after taking their meals, they left together.

So far as the evidence of last seen is concerned, it is to be noted that version given by Sohan Lal (P.W. 11) that Vinod Kumar accompanied by Sagarmal had come to take meals at the house is not part of the entry made in Daily Diary Register (Exhibit-P/16). It is the only when the police had arrived at the place of occurrence accompanied by the complainant Sohan Lal (P.W. 11), this fact has been introduced in written report (Exhibit-P/12). Be that as it may, it has come in the evidence that accused Sagarmal and the deceased Vinod Kumar had left the house of Sohan Lal (P.W. 11) father of the deceased, in the afternoon. Furthermore, three witnesses, namely Harish Kumar @ Dugduga (P.W. 1), Sohan Lal S/o. Dhannaram (P.W. 3) and Rameshwar (P.W. 4) have deposed in the court that on 1.8.2006, at 8:30/8:45 PM, the deceased Vinod Kumar had gone to the liquor shop of Harish (P.W. 1). Thereafter, they accompanied by Rameshwar, had gone to liquor shop of Sohan Lal (P.W. 3) at 9:30 PM, and Rameshwar stated that at 10:00/11:30 PM, in the night he had left Vinod and Sagarmal at the place of occurrence. Curiously enough, the incident has taken place in the night of 1.8.2006, and in the night the dead body was found and the FIR was registered on 2.8.2006, all the three witnesses have surfaced as witnesses of last seen on 6.8.2006, after the accused had already been arrested on 4.8.2006. Therefore, when the appellant was arrested on 4.8.2006, except what was stated in the FIR, there was no evidence against the appellant. There was no reason for the three witnesses not to state before the Investigating Officer that they had seen the accused together. Rameshwar Lal (P.W. 4) is resident of the same place. His statement (Exhibit-D/2) is also silent on this material aspect.

Sohan Lal S/o. Dhanna Ram (P.W. 3) in the court stated that he was kept at the police station for 4/5 days. This witness further stated that he was not given any beating. To be precise, the witness stated as under:--

Harish Kumar @ Dugduga (P.W. 1) also stated that the police has recorded his statement after 5/6 days of the occurrence. We find no reason for the witnesses to remain silent regarding material aspect of last seen having known that the dead body of the deceased, Vinod Kumar had been recovered on 2.8.2006. Therefore, the statement made by Sohan Lal (P.W. 3) assume importance that they were pressurized by the police to become witnesses. By arresting the appellant on 4.8.2006, police had already concluded him to be accused of the offence and had later secured the statement of the witnesses, namely Harish Kumar @ Dugduga (P.W. 1), Sohan Lal (P.W. 3) and Rameshwar Lal (P.W. 4) on 6.8.2006 by introducing them as witnesses of last seen.

Thus, we are firmly of the view that it is not safe to rely upon the testimony of Harish Kumar @ Dugduga (P.W. 1), Sohan Lal (P.W. 3) and Rameshwar Lal (P.W. 4).

Evidence of eyewitnesses:

Pura Ram (P.W. 5) and Aasa Ram (P.W. 8) on 18.8.2006, after seventeen days of the occurrence, suddenly emerged as eyewitnesses of the occurrence.

Pura Ram (P.W. 5) stated that he heard the shrieks and alongwith Aasaram (P.W. 8) reached at the spot and saw that the present appellant was beating Vinod Kumar with lathi. They wanted to intervene, but the accused-appellant Sagarmal had threatened them to the effect that he will also kill them. Therefore, out of fear, they came back from the spot having seen that blood was oozing from the head and mouth of the deceased Vinod Kumar.

Pura Ram (P.W. 5) in the court stated that his statement was recorded by the police after 17/18 days because he was under fear. The exact words of witnesses are as under:

The house of the witness (P.W. 5) is at a distance of one and a half kilometer from the police post. The witness admitted to be correct that regarding the occurrence, he had not informed anybody because under fear he had gone to his house. The witness further stated to be correct that near the house of Aasa Ram (P.W. 8) number of houses were situated, but they had not told anybody regarding the occurrence. The witness further admitted that he stayed at the place of occurrence for about one and a half hour and during this period nobody had come on this way. The witness further stated that till the statement was recorded by the police, he had not disclosed about the occurrence to anybody. The police may have visited the village, but neither he had gone to the police station nor to the police post. The witness in cross-examination stated as under:--

Aasa Ram (P.W. 8) also stated that he had not told about the occurrence to anybody and his statement was recorded by the police after 17/18 days of the occurrence. This witness further stated that due to fear of accused he had not disclosed about the occurrence to anybody. After the occurrence he had gone to house and slept.

It is to be noted here that the Investigating Officer Anand Yadav (P.W. 14), in cross-examination stated that he called Aasa Ram (P.W. 8), but he was unable to tell whether he has reported to the police station or not? This witness stated as under:--

Thus, it is apparent that after the accused has been arrested on 4.8.2006, on 18.8.2006, Pura Ram (P.W. 5) and Aasa Ram (P.W. 8) were introduced as eyewitnesses. We are unable to find any reason, as to why these witnesses, for a good period of seventeen days had not disclosed about the occurrence to anybody. The plea, that they were under fear, is apparently, a false explanation. The witnesses have been roaming in the village and they were staying in a densely populated locality and the accused was already arrested on 4.8.2006. After the arrest of the accused, there was nothing for them to fear. The witnesses knew that the accused, Sagarmal had already been arrested and yet for a good period of seventeen days, they have not disclosed the occurrence to anybody.

To us, the delay on the part of the witnesses to give their version, rule out their presence at the place of occurrence as eyewitnesses. To us, it is not safe to rely upon their testimonies.

Evidence of recovery of blood stained shirt:

As per the prosecution, the appellant when arrested was wearing a Shirt, which was stained with blood. We have seen the arrest memo (Exhibit-P/7). In the arrest memo, it is not noted that the shirt worn by the accused was having any blood stains. However, after the arrest of the accused was effected, the shirt worn by the accused was taken into possession vide memo (Exhibit-P/8) by noticing that the same was having blood stains. The shirt was sent to Forensic Science Laboratory. From the perusal of the report submitted by FSL, it is revealed that one shirt and one kameej were sent for examination. The prosecution has failed to prove whether the shirt or kameej belonged to the deceased or the accused. On the sample of kameej, no marking was given. In its report (Exhibit-P/22) FSL has opined that the shirt was having human blood, but the blood group was found inconclusive. The FSL report (Exhibit-P/22) reveals that one shirt was having human blood but the same is inconclusive with regard to blood group and Kameez had tested positive for blood, but so far its origin, whether it was human blood or not, the opinion of the Expert is that ''the same was not sufficient for test''. The memo Exhibit-P/8 is not carrying marking. So we will assume that Kameez, belonging to the accused after examination tested positive so far blood is concerned, but the FSL has failed to prove whether the blood was of human origin or not? Even if we take another shirt which was of the deceased, on the same also though it tested positive for human blood, but the blood group has been found to be inconclusive.

Since the prosecution has failed to bring on record the blood group of the deceased, we cannot rely upon the same to uphold the conviction of the appellant, Sagarmal.

As a result of above discussion, we accept the appeal and set aside the conviction and sentence awarded by the trial court. The appellant, Sagarmal is acquitted of all the charges.

In view of the acceptance of the appeal, in above terms, we order that the appellant, Sagarmal be released forthwith, if in custody and not required in any other case.

Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, Sagarmal is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- 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 appellant Sagarmal, on receipt of notice thereof, shall appear before the Hon''ble Apex Court.