Allowed

Bhagwati and Ors. v. State of Rajasthan through P P

Rajasthan HC4 Jan 2023CRLA/1174/2017

Case brief

AI extract

What is this about?

High Court Delhi Bench (sic) allowed appeals convicting appellants in murder case due to infirmities in prosecution evidence including contradictory witness testimony, delayed FIR lodged after cremation, lack of independent witnesses for firearm seizure, and failure to prove weapons were functional.

What did the court decide?

Impugned judgments and orders set aside; appellants acquitted and released on bail subject to furnishing personal and surety bonds.

Bhagwati and Ors. Vs State of Rajasthan… — Murder and Culpable Homicide | Rajasthan HC (2023)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Criminal Appeal No. 1174/2017

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Bhagwati S/o Keshav Singh, R/o Abdulpur, Police Station Kanchanpur, District Dholpur Rajasthan. (At Present in District Jail, Dholpur)

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Rameshwar S/o Keshav Singh, R/o Abdulpur, Police Station Kanchanpur, District Dholpur Rajasthan. (At Present in District Jail, Dholpur)

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Pappu @ Ramsewak S/o Keshav Singh, R/o Abdulpur, Police Station Kanchanpur, District Dholpur Rajasthan. (At Present in District Jail, Dholpur)

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----Appellants

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Versus

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State Of Rajasthan Through PP

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----Respondent

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Connected With

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D.B. Criminal Appeal No. 1175/2017

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Dhani Ram S/o Keshav Singh, R/o Abdulpur, Police Station Kanchanpur, District Dholpur Rajasthan. (At Present In District Jail, Dholpur)

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----Appellant

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Versus ----Respondent

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State Of Rajasthan Through PP

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For Appellant(s) : Mr. Suresh Kumar Sahni, Adv. Mr. Ram Mohan Sharma, Adv. Mr. M.S. Solanki, Adv. For Respondent(s) : Mr. Javed Choudhary, Addl. G.A. Mr. Govind Prasad Rawat, Adv.

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HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BIRENDRA KUMAR

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JUDGMENT RESERVED ON : 15.12.2022 DATE OF PRONOUNCEMENT : 04.01.2023

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(PER HON. BIRENDRA KUMAR, J.)

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(2 of 11) [CRLA-1174/2017]

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The appellants above named faced trial in Sessions Case No.07/2015 arising out of FIR No.406/2014 registered with Police Station Kanchanpur. The learned trial Judge found appellant Bhagwati guilty under Section 302 of IPC. Other appellants were found guilty under Section 302/34 of IPC and all the appellants were further found guilty under Sections 336/34 and 307/34 of IPC. Imprisonment for life was awarded to all the appellants for offences under Sections 302/34 and 307/34 of IPC. Fine of Rs.1,000/- and in default of payment of fine, two months simple imprisonment was also ordered. For the offence under Section 336/34 of IPC, one month simple imprisonment was awarded.

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On the date of judgment by the learned trial Judge, appellant Dhani Ram was not present hence, by the impugned judgment dated 03.06.2017, rest three were found guilty and sentenced as above, whereas appellant Dhani Ram was convicted by the impugned judgment dated 05.06.2017 and was sentenced on the same day. Hence the two appeals aforesaid.

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The prosecution case as disclosed in the FIR is that on 12.12.2014 at about 07:30 A.M., informant (PW.1) along with his cousin brother Komal Singh (PW.8) was going through the newspaper near his house. The brother of the informant namely Bablu (deceased) and Kamal Singh (PW.7), Nawal Singh (PW.3), Vivek Singh @ Bantu (PW.6) were also reading the news papers. At the time, appellants Rameshwar, Bhagwati, Pappu @ Ramsewak and Dhani Ram armed with Katta (short gun), gun and Lathi came out of their house and stated that they would kill the informant. The accused persons initially started hurling stones, the prosecution side also started retaliating to save themselves.

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(3 of 11) [CRLA-1174/2017]

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Thereafter, the accused persons returned and attacked again. Accused Rameshwar fired with his 12 bore gun, however the shot crossed above the head of the informant. Thereafter, the accused Bhagwati fired with his 315 bore Indian gun, which hit at the chest of Bablu and Bablu fell down. The accused Pappu and Dhani Ram made several fire at the informant but the informant escaped. In the meantime, villagers assembled there, then the accused persons fled away from the site. The police came and took the injured to Dholpur Hospital and the injured died as soon as he reached the hospital.

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The prosecution examined altogether 12 witnesses. The defense also produced four witnesses. Several documents have been exhibited in this case. 5. We have thoroughly gone through the oral and documentary evidences on the record. 6. Learned counsel for the appellants contends that the testimony of eye-witnesses PW.1 Krishna Singh, PW.3 Nawal Singh, PW.6 Vivek Kumar, PW.7 Kamal Singh, PW.8 Komal Singh and PW.10 Mohar Singh would reveal that they have deposed in a parrot like manner to support the FIR. All these witnesses are family members of the deceased. They have admitted long political rivalry with the family of the appellants. The candidate from the appellants’ family was defeating the candidate coming from the prosecution family in Sarpanch election since last several years and the prosecution was keeping a grudge against the appellants that is why the false implication is there. Learned counsel contends that it is consistent defense of the appellants that murder of Bablu was committed somewhere else and the

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(4 of 11) [CRLA-1174/2017]

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dead body was brought on the alleged place of incident to falsely implicate the appellants as there was political rivalry with the prosecutors and several criminal cases were going between the parties since long. Learned counsel submits that this is the reason for not instituting the FIR till post-mortem and cremation of the dead body though the police was already there at the place of incident since the time of recovery of dead body till its postmortem examination. Learned counsel submits that no blood stained soil was seized by the police on the date of incident, evidently, for the reason that no blood was found on the place where dead body was kept and only a fictitious seizure was said to be effected on the day following the incident. Likewise, the police has not recorded statement of the witnesses of the vicinity rather those witnesses appeared as defense witnesses and stated that no such incident had taken place there.

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Learned counsel contends that there are several contradictions and conflicts in the testimony of these witnesses which creates serious doubt on their trustworthiness and presence at the P.O.

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Learned counsel contends that the FIR was lodged only after cremation of the dead body and after due deliberation. Therefore, the prosecution case cannot be accepted as presented by the prosecution witnesses.

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Learned Government Advocate for the State contends that the eye-witnesses are wholly reliable and have consistently supported the prosecution case. They are natural witnesses of the incident as they were sitting in front of their house therefore, their testimony cannot be discarded only for the reason that they

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(5 of 11)

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[CRLA-1174/2017]

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belong to the same family. Minor discrepancies in the prosecution evidence would not make the otherwise acceptable evidence of eye-witnesses as unreliable.

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Learned counsel contends that the medical evidence corroborates the ocular testimony of prosecution witnesses.

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The law is well settled that plurality of witness is not the requirement to record conviction. Even a single eye-witness, who is wholly reliable, would be enough to record a conviction. Likewise, merely for the witnesses being relatives would not make their testimony unworthy of credence rather evidence of such witnesses requires scrutiny with greater care and caution. If the Court does not find such witnesses wholly reliable, the Court may seek for corroboration. 9. Now the questions posed before us are whether the eyewitnesses produced in the case are wholly reliable or the attending circumstances create doubt on their trustworthiness specially about their presence at the time of incident?

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Whether the infirmities in the prosecution evidence raised go to the root of the prosecution case. Since enmity cuts both ways the question would be whether a case of murder due to enmity is made out or a case of false implication due to enmity is probable? 10. The eye-witnesses of the case referred above have supported the prosecution allegations disclosed in the FIR. However, the record reveals that the incident took place at 07:30 A.M. on 12.12.2014. The inquest report was prepared at 10:00 A.M. On the same day, the post-mortem examination was done at 10:20 A.M. Thereafter, FIR was registered at 13:15 hours after cremation of the dead body. It is evident from the prosecution

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(6 of 11) [CRLA-1174/2017]

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evidence that the police had reached at the place of incident and took the injured to the hospital where the injured died and inquest report was prepared. Krishan Singh, the informant of the case has specifically admitted that after post-mortem, the police had handed over the dead body at 11:00 A.M. The witnesses have admitted that in fact no case was instituted till then. The witnesses have further admitted that the case was lodged with the police only after cremation of the dead body. PW.1 further stated that his brother Komal Singh had written the first report submitted to the police. However, PW.8 Komal Singh has not stated anything like that.

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PW.10 Mohar Singh is nephew of the informant. This witness has deposed that after cremation of the dead body, all the family members sat together to decide about the institution of the FIR.

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PW.11. Ajay Singh Meena, the Investigating Officer of the case has also admitted that no FIR was lodged till cremation of the dead body. Other eye-witnesses deposed that through they were present at the place of occurrence all along with the police but they did not disclose the names of the assailants to the police. 11. The aforesaid evidence clearly indicates that the delayed FIR was for the reason that all the family members of the prosecution side sat together to discuss about the institution of FIR. In the circumstance, the chances of false implication after deliberation cannot be completely ruled out specially considering the old and continuing enmities between the parties.

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DW.2 Ramakant son of Nathilal is resident of the nearby place of incident. This witness has deposed that in the morning, no such incident as alleged by the prosecution had taken place

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(7 of 11)

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[CRLA-1174/2017]

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rather, at about 07:00 A.M. on a tractor, dead body of Bablu was

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brought there and was kept near his shop. The informant Krishna and Komal Singh, the family members of Bablu made alarm that Bablu had been murdered but no incident had taken place including of firing there. The witness specifically stated that he had made statement to the police but the police did not record it. DW.3 Dansingh and DW.4 Manoj have deposed that on 12.12.2014 at about 06:15 A.M., they were going to field side to attend the call of nature. They saw that Bablu was lying unconscious in between the house of Mohanlal Kathera and Ramesh Thakur. The witnesses went to the house of the informant and reported about the fact that Bablu is lying there. The informant came and carried Bablu on a tractor and put the dead body near the shop of Nathi Lal (DW.2 is son). These witnesses have also specifically stated that no such incident of firing had taken place at Abdulpur Chauraha, which is the place of incident according to the prosecution.

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PW.3 Nawal Singh, specifically admitted that no blood was there where the dead body of Bablu was lying. Identical is the statement of DW.4 Manoj. Non-seizure of blood smeared soil from the spot, on the date of incident, by the police though police was there, fortifies the claim of the defense witnesses who are not hostile to the prosecution that in fact, the incident did not take place as alleged by the prosecution. These materials add to the doubt on the prosecution case as stated above.

¶48

The police claims to have seized three fire Arms. One was a 12 bore katta produced by appellant Rameshwar to the police vide exhibit-P21, another was 315 bore gun produced by appellant

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(8 of 11) [CRLA-1174/2017]

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Bhagwati vide exhibit-P20 and third was a katta of 315 bore produced by appellant Dhani Ram to the police. All the seizure lists are signed by police constables as witnesses and not by independent and respectable inhabitants of the locality as required under Section 100 (4) of Cr.P.C.

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Sub Section 100(4) of Cr.P.C. says that if no such inhabitants of the said locality are available or are willing to be witness to the search, the authority may issue an order in writing to them or any of them to do so.

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There is no evidence that no independent witnesses of the locality were available or were not ready to witness the seizure. 16. In Pradeep Narayan Madgaonkar and Others vs. State of Maharashtra reported in (1995) 4 SCC 255 , the Hon’ble Supreme Court said that the police did not make any serious attempt to join independent and respectable inhabitants, the Panch witnesses are not reliable.

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In the case on hand, none of the Panch witnesses of the seizure appeared before the Court.

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PW.9 Prem Singh had examined the effectiveness of seized fire Arms and submitted his report at exhibit-P11. The witness has admitted that he had not recorded whether “breaching part” of the fire Arms was functional or not. If the “breaching part” is not in order, the fire Arms would not fire. The witness further stated that he had not fired any of the fire Arms to ascertain its effectiveness. The fire Arms produced before him were not containing any identification mark, nor those fire Arms were there before him while he was deposing before the Court.

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(9 of 11)

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[CRLA-1174/2017]

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Thus the seizure of the fire Arms said to be used in the crime as well as its effectiveness are not proved by the prosecution beyond doubt. This one is very serious lapse on the part of the prosecution to prove the charge of guilt beyond all reasonable doubt.

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According to PW.1 only he had accompanied injured Bablu to the hospital along with the police, whereas according to (PW.3), Vivek (PW.6), Deshraj (PW.2) and Devendra Singh (PW.4) had gone to the hospital along with injured Bablu.

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PW.2 and PW.4 had not stated that they had gone along with Bablu to the hospital. PW.6 is specific that he could not remember who had accompanied when PW.6 was going along with Bablu to the hospital. PW.7 deposed that at the time of incident, Devendra Singh (PW.4) and Deshraj (PW.2) were not at the house. Devendra Singh was living at Gwalior. Both had come after two hours of the incident. The aforesaid contradictory statements of the eyewitnesses creates doubt on their presence at the place and time of incident.

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PW.8, who is full brother of the deceased has deposed that he saw that Bablu received fire Arm injury, fell down and died at the spot. This statement contradicts the entire prosecution case that Bablu died on way to the hospital and Panchnama was prepared at the hospital.

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Though the plea of alibi is very weak defense specially when based on oral testimony; DW.1 has deposed that on the date and the time of incident, appellant Bhagwati had gone to village Nagladulhekhan to see the progress of soiling of road under Narega Scheme. It does not appear that the witness had any

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(10 of 11)

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[CRLA-1174/2017]

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motive to give any false statement like aforesaid. The evidence of DW.1 assumes importance due to lack of credibility of the eyewitnesses of the case, coupled with delayed FIR which was lodged after due deliberation as referred above.

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To sum up, (a) though several eye-witnesses of the incident claim to be present at the time of arrival of the police at the place of incident, none disclosed the name of the assailants or manner of incident to the police till before written information to the police by the first informant, which was done only after due deliberation and cremation of the dead body. The aforesaid infirmity creates serious doubt on the trustworthiness of the prosecution case. (b) Eye-witnesses are not wholly reliable due to serious contradictions in their testimony on material particulars as discussed above.

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(c) Three used cartridges of 315 bore gun were recovered from the place of incident by the police and allegations of firing of single shot from that gun is against appellant Bhagwati. The conflict is not explained, hence it is doubtful whether eye-witnesses had seen the occurrence. (d) The prosecution failed to prove and establish that the seized fire Arms were used in the occurrence and the fire Arms were active to be used.

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(e) The defense evidence probabilizes a case of murder in some other incident not witnessed by anyone that is why blood stained soil etc. were not seized on the date of incident itself though the police team was there at the place of incident for the whole day.

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Learned trial Judge has not considered the aforesaid infirmities in the prosecution case, therefore, in our view, due to

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(11 of 11)

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[CRLA-1174/2017]

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infirmities aforesaid, the prosecution case appears to be doubtful and the benefit whereof must go to the appellants.

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In the result, the impugned judgments and orders of sentence are hereby set aside and the appeals are allowed. The appellants are acquitted of the charges levelled against them. Let the appellants who are in custody be released at once in this case. Appellant Pappu @ Ramsewak in criminal appeal No. 1174/2017 is on bail. Bail bonds earlier furnished by appellant Pappu @ Ramsewak in criminal appeal No. 1174/2017 be treated cancelled. 25. Appellants are directed to furnish a personal bond of Rs. 50,000/- each and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before the Hon’ble Apex Court. The bail bond will be effective for a period of six months. Let the appellants be released once in this case

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(BIRENDRA KUMAR),J

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(PANKAJ BHANDARI),J

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Ashwani/-54-55

Bhagwati and Ors. v. State of Rajasthan through P P

Case brief

What is this about?

What did the court decide?

Bhagwati and Ors. v. State of Rajasthan through P P

Case brief

What is this about?

What did the court decide?

What the court decided

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