Allowed

Dashrath Singh and Anor v. State

Rajasthan HC23 Feb 2024CRLA/375/2000

Case brief

AI extract

What is this about?

The High Court acquitted three appellants convicted in a murder case. The Court found the prosecution evidence, including dying declarations and eyewitness accounts, unreliable due to inconsistencies and lack of corroboration, and set aside their convictions.

What did the court decide?

The convictions and sentences of Dashrath Singh, Mahavir Singh, and Kripal Singh were set aside, and they were acquitted of all charges.

Dashrath Singh and Anor Vs State — Murder and Culpable Homicide | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Criminal Appeal No. 375/2000

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Dashrath Singh son of Shri Mal Singh, resident of Baraniya, police Station Fatehpur, District Sikar.

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Mahavir Singh son of Shri Narain Singh, resident of Chandoli, P.S. Gachhipura, District Nagaur.

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Both at present confined to Central Jail, Jaipur.

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----Appellants

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Versus

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State of Rajasthan through P.P.

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----Respondent

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Connected With

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D.B. Criminal Appeal No. 331/2004

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Kripal Singh son of Jagdish Singh, resident of Village Khudi, Police Station Laxmangarh, District Sikar, Rajasthan.(Presently he is behind the bars in Central-Jail, Jaipur)

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----Appellant

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Versus

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The State of Rajasthan through Public Prosecutor.

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----Respondent

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For Appellant(s)	: : :	Mr. V.R. Bajwa, Sr. Adv. assisted by Ms. Savita Nathawat & Mr. Rajendra Singh Rajawat, (for Accused-Dashrath Singh) in CRLA No.375/2000 Mr. Pankaj Gupta with Mr. Naman Yadav, (for accused- Mahaveer), in CRLA No.375/2000 Mr. V.R. Bajwa, Sr. Adv. assisted by Ms. Savita Nathawat, (for accused- Kirpal Singh), in CRLA No.331/2004
For State	:	Mr. Javed Choudhary, Addl. G.A.
For Complainant(s)	:	Mr. Poonam Chand Bhandari with Mr. Abhinav Bhandari, Mr. Rakesh Chandel, Ms. Pratibha Baresa, Mr. Krishna Singh Jadoun & Mr. Dinesh Pareek

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HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL

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Judgment

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RESERVED ON :: 25/01/2024 PRONOUNCED ON :: 23/02/2024

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(Per Hon’ble Pankaj Bhandari,J)

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REPORTABLE

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Present D.B. Criminal Appeal No.375/2000 titled as Dashrath Singh & Anr. Versus State of Rajasthan has come up before this Court for hearing in pursuance of the remand order dated 03.08.2011 passed by the Apex Court in Criminal Appeal No.352 of 2008 & remand order dated 23.01.2012 passed by the Apex Court in Crimial Appeal No.1550 of 2009 whereby the Apex Court has allowed the appeals filed by Dashrath Singh and Mahavir Singh and has set aside the order of the Division Bench of the Rajasthan High Court dated 18.07.2006 and has remanded the case back to this Court for re-decision qua the appellants herein. The appeal was filed by the appellants – Dashrath Singh and Mahavir Singh aggreived by the judgment and sentence dated 18.05.2000 passed by the learned Judge, Special Court, Jaipur in Sessions Case No.01/1998, whereby appellant-Dashrath Singh was convicted for offence under Section 148 IPC and Section 302 and 302/149 IPC. For offence under Section 148 IPC, he has been sentenced for two years rigorous imprisonment and for offence under Section 302 and 302/149 IPC, he has been sentenced for life imprisonment and a fine of Rs.3,000/-, in default of payment of fine, to further undergo three months rigorous imprisonment. Appellant-Mahavir Singh was convicted for offence under Section 147 IPC and Section 302/149 IPC. For offence under Section 147

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IPC, he has been sentenced for one year rigorous imprisonment and for offence under Section 302/149 IPC, he has been sentenced for life imprisonment and a fine of Rs.3,000/-, in default of payment of fine, to further undergo three months rigorous imprisonment.

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D.B. Criminal Appeal No.331/2004 titled as Kripal Singh Versus State of Rajasthan has been filed by appellant – Kripal Singh aggreived by the judgment and sentence dated 28.01.2004 passed by the Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur in Sessions Case No.127/2001 whereby appellant – Kripal Singh has been convicted for offence under Section 302/120-B of IPC and sentenced to rigorous life imprisonment and a fine of Rs.2,000/-, in default of payment of fine, to further undergo six months imprisonment.

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Succinctly stated the facts of the case are that on 29.12.1997 complainant – Raju Nayak submitted a written report at Police Station Jhotwara wherein he has stated that today at 08:15 AM Rajendra Grover came to his home by motor-cycle and they were discussing about the cricket match. In the meantime, a cream coloured jeep came from Adarsh Vidya Mandir side and hit the motor-cycle, due to which, complainant and Rajendra Grover fell down. They immediately ran away from there, but Dilip Singh, Dashrath Singh, Mahavir and Sunil Bihari and 5-6 other persons came out from the jeep. They were carrying weapons like lathi , sword, pharsi and pistol and they ran after Rajendra and started beating Rajendra Grover. On the said report, FIR bearing No.563/1997 was lodged for offences under Sections 147, 148,

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149, 307, 324, 323 and 341 of IPC and investigation was initiated. During investigation, Rajendra Grover died at the hospital.

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The police after completion of the investigation has filed challan against accused – Dilip Singh, Dashrath Singh, Mahavir Singh, Sudepal Singh, Dewan Singh, Khem Singh, Ravindra Singh, Rajveer Singh, Damodar, Kripal Singh and Santu Sharma. Trial Court framed charges against 10 accused persons. Accused denied the charges and claimed trial. Out of the 10 accused persons, one Santu Sharma, against whom challan has been filed under the provisions of Section 299 Cr.P.C. for offence under Sections 147, 148, 149, 302/34 and 120-B of IPC, was acquitted by giving benefit of doubt and the other nine accused were convicted by the learned Trial Court. 5. D.B. Criminal Appeal was preferred by nine accused persons. Division Bench of the High Court acquitted six accused – Khem Singh, Sudepal, Diwan Singh, Rajveer Singh, Ravindra Singh and Damodar Singh and convicted 3 accused namely; Dilip Singh, Dashrath Singh and Mahavir Singh. The conviction order was then challenged by Dilip Singh and the acquittal order was challenged by complainant side. Supreme Court dismissed both the SLPs; one filed by Dilip Singh and the other SLP filed by complainant, as a consequence of which, conviction of accused - Dilip Singh was upheld and acquittal of Khem Singh, Sudepal Singh, Diwan Singh, Rajveer Singh, Ravindra Singh and Damodar was upheld vide judgment/order dated 05.02.2007. In the SLP preferred by accused – Dashrath Singh, the Apex Court vide order dated 03.08.2011 has set aside the order dated 18.07.2006 and has

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remanded the case for hearing the appellant afresh. In the SLP preferred by accused – Mahavir Singh, the Apex Court vide order dated 23.01.2012 has disposed of the appeal in terms of the order dated 03.08.2011 and has remanded the case back to this Court for deciding the matter afresh after affording opportunity of hearing to the appellant.

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D.B Criminal Appeal No.375/2000 now survives only qua accused- Dashrath Singh and Mahavir Singh. Learned Trial Court vide its judgment dated 18.05.2000 has convicted and sentenced the accused-appellants – Dashrath Singh & Mahavir Singh as mentioned above. 7. D.B. Criminal Appeal No.331/2004 has been preferred by appellant – Kripal Singh against the judgment of conviction and order of sentence dated 28.01.2004, whereby he has been convicted and sentenced for offence under Section 302 read with Section 120-B of IPC.

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It is contended by learned counsel for the appellantsDashrath Singh and Mahavir Singh that an FIR is said to have been lodged at 10:00 AM on 29.12.1997. The same was not forwarded to the Magistrate within 24 hours and was sent after a delay of 5 days to the Magistrate. Thus, the FIR itself comes under a cloud of doubt. It is also contended that Raju Nayak (PW-2), who is a star witness of the prosecution, is not a reliable witness as immediately after the incident, when the police reached the spot neither he informed the police about the incident nor travelled with the police in the jeep in sending the deceased to the hospital. It is also contended that as per prosecution story, clothes

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of Raju Nayak soaked blood due to incident, however, there was no seizure memo of his blood stained clothes. It is further contended that the dying declaration (Exhibit-P/1) recorded enroute the hospital in a running jeep, is a doubtful document for the very reason that if it was recorded enroute, there would have been jerks while writing the dying declaration. It is also contended that there is no signature of the deceased on the dying declaration (Exhibit-P/1) and that as per the prosecution case, the absence of signature of the deceased was due to injury on both his hands, however, there is nothing on the post mortem report (ExhibitP/50) of the deceased to show that his fingers or thumbs were injured so as to unable him to make a thumb impression. It is further contended that the above dying declaration has also been disbelieved by this High Court in its earlier judgment.

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It is contended that as per the prosecution case, deceased went to Raju Nayak’s place and when he was sitting on the motorcycle, a cream colour jeep came and hit the motor-cycle, on which both Raju Nayak and deceased fell down. Deceased ran from that place and Raju Nayak also ran in the opposite direction from the place of incident. It is also contended that there is no possibility of the deceased noting the jeep number when the jeep came all of a sudden and hit the motor-cycle from the back and also because, as per the dying declaration, he immediately ran away from the place. It is further contended that the colour of the jeep mentioned in the report and that which has been seized are different, which also raises suspicious about version of deceased.

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It is further contended that Shankar (PW-1) is a chance witness and his statement is also not reliable for the very reason that if he would have carried the deceased in the jeep, then his clothes ought to be blood soaked, but there is no recovery of his blood soaked clothes.

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It is contended that the deceased was never in his senses and immediately after the incident, he was rushed to the hospital, but there is no entry record of his reaching the hospital; the treatment that was given to him; no bed head ticket has been produced nor any doctor has been examined to establish that he was conscious and in a fit position to give statement. It is also contended that out of 10 persons, who were tried, 1 was acquitted by the trial Court, 6 have been acquitted by the Division Bench of this Court and their acquittal has been upheld by the Supreme Court. Thus, the entire story of the prosecution is false.

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It is contended that a crescent shaped axe was recovered from Dashrath Singh, whereas, doctors have given statements that the injuries caused to the deceased could not have been caused by crescent shaped axe as the injuries sustained by the deceased are not crescent shaped. It is also contended that an iron pipe is said to have been recovered from Mahavir, but as per the FSL report (Exhibit-P/75), no blood was detected on the same. It is also contended that 1 empty cartridge and 1 live cartridge of 12 bore gun were recovered from the site. There is no investigation as to from where the live and empty cartridges came at the place of occurrence. It is further contended that neither the malkhana register has been produced nor Malkhana Incharge has

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been examined to establish deposit of the seized articles at the malkhana .

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Per Contra , with regard to appellants - Dashrath Singh and Mahavir Singh, it is contended by counsel for the complainant that the FIR was lodged without delay and names of accused appellants – Dashrath Singh and Mahavir Singh are appearing in the FIR. It is also contended that the accused appellants – Dashrath Singh and Mahavir Singh were arrested on the same day. There are witnesses, who have deposed against the appellants. It is contended by learned Counsel for the complainant that since the conviction of three of the accused was upheld by this Court and SLP preferred by Dilip Singh was dismissed by the Supreme Court, in terms of the dismissal of the SLP by the Supreme Court, the same fate should be of the appeals preferred by Dashrath Singh and Mahaveer Singh. Per Contra , learned Counsel for the appellants contended that the said SLP was dismissed in limine and the judgment cannot be said to be on merits.

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It is contended by learned counsel for accused-appellantKripal Singh that the informer of the police and the person, who talked with Kripal Singh from telephone of S.P. North, were not produced before the Court. It is further contended that no call recording has been produced to establish the telephonic communication and the telephonic communication is said to have taken place when the phone was not on speaker. It is also contended that there is no evidence to the effect that the phone was being used by appellant - Kripal Singh at the time when the

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communication is said to have taken place. The fact that the accused were arrested from Dudu is also not established as no arrest memo was prepared at Dudu. The person, who posed as Dashrath Singh, has not been produced in evidence. The S.P. North has not been produced to establish that he gave his mobile for contacting with Kripal Singh. It is also contended that there is no evidence with regard to conspiracy between the parties. It is further contended that since no element of conspiracy has been established, there is no meeting of mind prior to the alleged incident. It is contended that it is hard to believe that someone could pose himself as Dashrath Singh and talk to the appellant - Kripal Singh. Even if, it is believed that he talked with Kripal Singh, that would not lead to the conclusion that Kripal Singh was the main accused and that he planned the incident.

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Per Contra , learned counsel appearing for the complainant contends that Kripal Singh was the mastermind. He had planned the incident and a telephonic communication took place between the informer and Kripal Singh, wherein Kripal Singh informed the informer that work has been accomplished and that all the other accused are waiting at Dudu and that he should also reach Bannaji mid-way at Dudu.

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We have considered the contentions of learned counsel for the parties and have carefully scanned through the evidence and the judgments cited before us.

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D.B. Criminal Appeal No.375/2000 titled as Dashrath Singh & Anr. Versus State of Rajasthan has very peculiar facts and circumstances. As many as ten accused persons were made

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accused in trial, out of which, one accused was acquitted and nine accused were convicted by learned Trial Court. In the appeal preferred before this Court by the nine convicts, six accused were acquitted and three accused were convicted. The acquittal of six accused was challenged before the Apex Court by the complainant and one of the convict – Dilip Singh also filed SLP before the Supreme Court. The Supreme Court vide order dated 05.02.2007 gave permission to file both the SLPs and the same were also dismissed by the same order, which reads as under:-

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“Permission to file the Special Leave Petition is granted.

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The Special Leave Petitions are dismissed.”

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The remaining two convicts whose appeal was dismissed by this Court also preferred SLP before the Apex Court. Dashrath Singh’s Criminal Appeal No.352/2008 was decided by the Apex Court on 03.08.2011, the operative portion of which reads as under:-

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“We accordingly allow the appeal set aside the order of the Division Bench dated 18^th July, 2006 and remand the case for re-decision qua the appellant herein. We are also told that the appellant has been in custody for about 8 years. We suspend his sentence and direct that he be released on bail to the satisfaction of the Trial Court pending the hearing of the appeal.

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We also request the High Court to dispose of the appeal within six months from today.

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The appellant is also directed to engage a counsel of his choice within two months from the date of the receipt of a copy of this order failing which, it will be open to the High Court to appoint an amicus curiae.”

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Mahavir Singh’s Criminal Appeal No.1550/2009 was also disposed off by the Apex Court on 23.01.2012 and the order was passed in terms of the order passed in Dashrath Singh’s case. 19. The Apex Court in Shivappa Etc. Etc. versus The Chief Engineer & Ors. : 2023 LiveLaw (SC) 312 has held that dismissal of the special leave petition in limine does not amount to affirmation of the view taken by the High Court. Unless the judgment of the High Court is affirmed, at least, with short reasoning, the same should not amount to binding precedent. Thus, in light of the said judgment , we are of the considered view that dismissal of the appeal preferred by Dilip Singh in limine would not have any bearing on the present appeal of Dashrath Singh and Mahavir Singh. Furthermore, there is a specific direction of the Apex Court wherein the Apex Court has set aside the order passed by the Division Bench of this Court and has remanded the case for re-decision qua the appellants. It is pertinent to note here that neither the complainant nor the appellants have filed any review petition before the Hon’ble Supreme Court against the remand order in spite of having knowledge of the fact that conviction of one of the accused i.e., Dilip Singh was upheld by the High Court, we, therefore, deem it proper to decide the present appeals on the facts and merits of the case.

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Now, before entering into the merits of the case, it will be appropriate to first refer to the judgments on which reliance has been placed upon by the counsel for the parties. With regard to delay in sending the report to the Magistrate, counsel for the appellant has placed reliance on Pappu @ Ramlal Versus State of

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Rajasthan : (2017) 2 RLW 1466 , Mushtaq & Ors. Versus State of Rajasthan : 2015 SCC OnLine Raj 10215 , Umar s/o Kamal Khan Versus State of Rajasthan : (2014) 4 RLW 3685 , Jang Singh & Ors. Versus State of Rajasthan : (2001) 9 SCC 704 and Chotkau Versus State of U.P. : (2023) 6 SCC 742 . It is argued by counsel for the appellant that the basic purpose behind Section 157 of Cr.P.C. was to ensure that nothing new creeps in after institution of first information report, therefore, it was provided that the first information report should be sent to the Magistrate immediately. 21. On unnatural conduct of witness, reliance has been placed by counsel for the appellant on Lahu Kamlakar Patil & Anr. Versus State of Maharashtra : JT 2012 (12) SC 607 , Kanakarajan @ Kanakan Versus State of Kerela : JT 2017 (4) SC 407 , B. Virupakshaiah Versus State of Karnataka & Ors. : JT 2016 (2) SC 239 , State of Uttar Pradesh Versus Om Pal & Ors. : JT 2018 (6) SC 97 and Bhaskarrao & Ors. Versus State of Maharashtra : JT 2018 (6) SC 153 . Reliance is also placed on Jitendra Kumar Mishra @ Jittu Versus The State of Madhya Pradesh : Criminal Appeal No. 1348 of 2011 with Criminal Appeal No. 1347 of 2011 decided by the Apex Court on 05.01.2024 wherein it was observed that a relative of the deceased cannot be considered to be free and independent witness and there is every likelihood that he is an interested witness. If such person is having criminal background, conviction cannot be based on his sole testimony. The Apex Court also observed that the Appellate court should not shy away in giving benefit of doubt to accused persons.

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As far as facts of the case are concerned, prosecution case rests mainly on the parchabayan of the deceased, which is said to be his dying declaration (Exhibit-P/1) and on the statements of Raju Nayak (PW-2), Pankaj Sharma (PW-7) & Shankar (PW-1), and statements of Surendra Grover (PW-5) and Mahendra Kumar Grover (PW-6), brothers of the deceased, who have stated that the deceased had made an oral dying declaration in their presence.

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As far as dying declaration (Exhibit-P/1) of the deceased is concerned, the same is said to have been recorded while the deceased was being transported in a jeep from the place of occurrence to the SMS Hospital. In the said dying declaration, Jeep No.RJ-14-2C-1919 and a cream coloured jeep are mentioned. As per Shankar (PW-1) and Bhim Singh (PW-14), when the deceased was being shifted from the place of occurrence to the hospital, on way, he gave his dying declaration. After reaching the hospital, as the deceased was not in a position to sign on the statement, signature of Shankar (PW-1) was obtained on the dying declaration (Exhibit-P/1). Shankar (PW-1) in his statement has deposed that when he went to collect prasad in the morning, he saw that there was crowd gathering at a place and when he reached there, he found a person lying in injured condition. After sometime, the police came and one of the policemen called him to lift the injured. He along with 2-4 persons lifted the injured and placed him in the police jeep. He has further deposed that the Police Personnel asked him to sit in the jeep. After sometime, one of the policemen asked the injured his name and what happened

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to him, on which, the injured person told his name as Rajendra Grover and stated that he had gone to the house of Raju Nayak at 8:15 AM in connection with some cricket match. The injured person also stated that a cream coloured jeep accidented him, upon which, he fell down and then he started to run. Dilip Singh, Mahavir Singh, Khem Singh, Diwan Singh, Dashrath Singh and other persons also ran after him and attacked him with sword, pharsa , rods, sticks etc.

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Shankar (PW-1) has further stated that one Police Personnel was recording the statement of the injured in the jeep. This witness has also stated that the persons who placed the injured in the jeep included one Police Personnel and Raju Nayak. As per this witness, the statement was recorded in a running jeep enroute the hospital and he signed after reaching the SMS Hospital. He has denied giving statement to the Police on 29.12.1997 and has specifically stated that Exhibit-D/1 – statement under Section 161 Cr.P.C. was recorded when the vehicle was seized. On perusal of the seizure memo of the jeep (Exhibit-P/39), the time of seizure mentioned in the seizure memo is 7:30 PM on 30.12.1997. As per Shankar (PW-1), the Police asked the injured his name, to which, he replied that his name was Rajendra Grover and that he has gone to the house of Raju Nayak at 8:15 AM. This witness has not stated that the Police Personnel had asked the father’s name, age and address of the injured whereas in the dying declaration (Exhibit-P/1), father’s name, age and address of the injured are also mentioned. Bhim Singh (PW-14), Sub-Inspector, has also not stated that he asked the father’s name, age and address of the

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injured. Yet another thing, which is important to note is that there are no signatures on the first page of dying declaration (ExhibitP/1), either of Shankar (PW-1) or of Bhim Singh (PW-14). That the deceased gave statement enroute the hospital is not believable for the very reason that number of the jeep is mentioned and it is also mentioned that it was a cream coloured jeep whereas the jeep, that has been recovered, is a gray coloured jeep. As per the case of the prosecution, a jeep banged the motor-cycle from the backside and the deceased fell down and started running at the same time. There was no time for him to remember the registration number of the jeep. Shankar (PW-1) has also not stated that the deceased, while his statement was being recorded in the running jeep, narrated the registration number of the jeep. Furthermore, there is no signature of the deceased on the dying declaration and as per the prosecution story the same could not be taken as both hands of the deceased were injured, however, as per the post mortem report (ExhibtP/50), there is no injury on the fingers or thumb of the deceased so as to unable him to give a thumb impression. Thus, recording of dying declaration enroute hospital is not established beyond reasonable doubt.

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Surendra Grover (PW-5) and Mahendra Kumar Grover (PW6) are brothers of the deceased, who have deposed that the deceased while in the hospital narrated the incident to them. In this regard, if we peruse the statement of Surendra Grover (PW5), he has mentioned that when Rajendra Grover was being shifted to the ward, then on way, Mahendra Kumar Grover (PW-6)

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asked him as to what happened, to which, Rajendra Grover replied that the persons, who gave beating to him in Brahampuri, the same persons came in a jeep and have beaten him due to enmity. He has also deposed that Rajendra named 7-8 persons, namely; Dilip Singh, Dashrath Singh, Khem Singh, Mahavir Singh, Sudepal Singh, Diwan Singh, Ravindra Singh and 3-4 other persons. He also gave statement that Dilip Singh was having sword, Dashrath Singh was having a pharsi and others were having sticks, pipes and iron rods. He also stated that these persons came in a jeep and accidented his motor-cycle, upon which, he fell down and started running, thereafter all the persons, who alighted from the jeep, ran after him, caught him and mercilessly gave beating to him. Surendra Grover (PW-5) has deposed that when Rajendra was telling the story to Mahendra Kumar Grover (PW-6), he also heard him. In the cross-examination, this witness has stated that Rajendra was shifted to the north wing ward and when he was being shifted, there was no Police Personnel or hospital staff with them and there was a drip bottle, which was held by Mahendra and he was pushing the trolley. He has also stated that what Rajendra narrated, the same was not noted down.

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Mahendra Kumar Grover (PW-6) has stated that when he reached the hospital, on his asking, Rajendra narrated the incident and informed the names of the persons, who had attacked him. In the cross-examination, he has admitted that Rajendra was carried on a stretcher to the ward. He has also stated that he was holding a glucose bottle in one hand and from his other hand, he was holding the stretcher and his brother - Surendra Grover was trying

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to push the stretcher from back. He has clearly stated that there was no hospital staff, doctor or Police Personnel at the time when the deceased was being shifted to the ward. This witness has narrated the oral dying declaration as narrated by the deceased to him and has stated that the deceased informed the names of the assailants as Dilip Singh, Khem Singh, Dashrath Singh, Mahavir Singh, Sudepal Singh, Rajveer Singh, Ravindra Singh, Diwan Singh and two other persons, whose names, he was not knowing; that they came in a cream coloured jeep bearing Registration No.RJ-14-2C-1919; that he was sitting on a motor-cycle when the jeep hit the motor-cycle, thereafter he ran and the accused ran after him, caught him and gave beating to him and; that Dilip Singh was having a sword, Dashrath Singh was having a pharsa and others were having sticks, pipes and iron rods.

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The oral dying declaration made before these two brothers cannot be believed for the very reason that there is no evidence of any doctor with regard to the condition of the deceased at the time when he was admitted in the hospital. No bed head ticket or admission ticket has been produced before the Court to establish that the victim was conscious and was in a fit position to give statement. As per both Surendra Grover (PW-5) and Mahendra Kumar Grover (PW-6), who are brothers of the deceased, they were pushing the stretcher through a ramp towards the ward, when one of the brother, who was carrying the glucose bottle, asked the injured about the incident and at that time, he narrated the incident including the registration number of the jeep. Both these witnesses have stated that no staff, doctor or Police

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Personnel were with them when they were shifting the injured to the General Ward. It is also not believable that an injured, who was admitted in hospital by Police, will be shifted in the absence of police or doctor.

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The entire story of the prosecution appears to be a made up story for the very reason that at the time when the injured is said to be sitting on the motor-cycle, a jeep came and hit the motorcycle, upon which, the injured fell down on one side and started running. At the relevant time, his noting the number of the jeep and then remembering it after having sustained 27 injuries cannot be believed, as he has stated in the dying declaration that as soon as he fell down, he started running as many persons were alighting from the jeep and were running towards him. Surendra Grover (PW-5) has also not mentioned that the deceased uttered the registration number. Mahendra Kumar Grover (PW-6) was not recording what was being stated by the deceased. Thus, it cannot be believed that at such a moment when one is fighting for his life, he could remember the registration number of the jeep. At the same time, it cannot be believed that injured would remember the registration number of the jeep and could narrate the same to his brother. Since there is no medical record of the hospital produced before the Court below to establish that the injured was conscious and in a fit condition to record his statement, the oral dying declaration made to Surendra Grover (PW-5) and Mahendra Kumar Grover (PW-6) cannot be believed and cannot be thus made a ground for convicting the accused appellants. Learned Court below has clearly erred in placing reliance on the oral dying

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declaration made by the deceased to Surendra Grover (PW-5) and Mahendra Kumar Grover (PW-6).

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It is pertinent to note at this stage that the deceased was having many cases of murder registered against him. Mahendra Kumar Grover (PW-6) has denied that the deceased was having seven cases of murder registered against him and has stated that as per his information, four cases of murder were registered against him. Other than this, statements of Surendra Grover (PW5) and Mahendra Kumar Grover (PW-6), who are brothers of the deceased, are even otherwise not reliable for the very reason that one, they are related to him and second, they are having criminal antecedents and many cases of murder, extortion etc. have been registered against them as has been admitted by them in their cross-examination. Since the deceased, as admitted by Mahendra Kumar Grover (PW-6), was having as many as four cases of murder registered against him, both Surendra Grover (PW-5) and Mahendra Kumar Grover (PW-6) also having many cases registered against them, chances of Surendra Grover (PW-5) and Mahendra Kumar Grover (PW-6) framing the accused-appellants cannot be ruled out.

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The document–dying declaration (Exhibit-P/1), which is stated to have been recorded enroute the hospital in a running jeep, does not bear any signature on the first page and on the second page, there is signature of Shankar (PW-1) in hindi language. On the same day, Shankar was also a witness to the recovery of motor-cycle, wherein he has signed in English language at place A to B. Shankar (PW-1) having signed on the

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same day in both Hindi and English language, an attempt was made on behalf of the prosecution to make him sign on all the pages of his court statement in both languages. A bare perusal of the signatures of Shankar (PW-1), one which is appearing in the court statement and the other, appearing in the alleged dying declaration of the deceased recorded enroute the hospital by the police and on which, as per Shankar (PW-1), he signed after reaching the hospital, there are marked difference and it is apparent that the signatures appearing in dying declaration (Exhibit-P/1) has no resemblance, as far as words ‘ ka ’ and ‘ ra ’ are concerned. Even the word ‘ sha ’ is not tallying with the signatures made in the court statement. Apparently, this witness has been created by the prosecution in document (Exhibit-P/1). The dying declaration (Exhibit-P/1) is further not reliable as the Police Personnel, who has recorded the statement, did not make any effort to obtain a certificate from the doctor with regard to the fit condition of the deceased so as to give dying declaration. From Rojnamcha (Exhibit-P/64) also, it is revealed that the statement of the deceased was recorded during his treatment. As to what was recorded during his treatment has not seen the light of the day. As to why the prosecution has withheld the statement, which was recorded during the treatment, is also not explained by the prosecution and thus, it creates doubt with regard to the veracity of dying declaration (Exhibit-P/1), which is said to have been recorded enroute the hospital.

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From perusal of Rojnamcha (Exhibit-P/69A) dated 29.12.1997, it appears that dying declaration was recorded while

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the deceased was undergoing treatment. The language used in the

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Rojnamcha (Exhibit-P/69A) reads as under:-

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“,l,e,l gkWLihVy igqap dj et:c dk bZykt djk;k] nkSjkus bZykt C;ku utjh et:c fy;s o okMZ N.S.W.1 esa HkrhZ djok;k x;kA **

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As per Rojnamcha (Exhibit-P/69A), statement of the deceased was recorded while he was undergoing treatment at the hospital. The recording of the dying declaration in a running jeep, thus appears to be a concocted story and cannot be relied upon by the Court.

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The other evidence against the appellants is of Raju Nayak (PW-2), who has been produced before the Court as an eyewitness. He has stated in his statement that on 29.12.1997 at around 8:15 AM, Rajendra Grover came to his place on a motorcycle. The witness came out of the house, at that time, three persons, namely, Virendra Sharma, Raju Sharma and Pankaj Sharma came. As Rajendra was talking to this witness, he asked Virendra, Raju and Pankaj to sit at the tea kiosk , thereafter all these three persons left. After talking with deceased for sometime about the cricket match, a cream coloured jeep came from the side of Adarsh Mandir and hit the motor-cycle from the back. Rajendra Grover, who was sitting on the motor-cycle, fell down on the floor and this witness fell in his boundary inside the house. This witness has deposed that when he turned and looked back, from the jeep alighted Mahavir Singh @ Sunil Bihari, Dilip Singh, Dashrath Singh and 5-6 other persons, who were carrying sword, pharsa , pipe and iron rods. This witness has also deposed that after seeing them, he jumped into the premises of his neighbour’s

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house Bhanwar Singh and Rajendra started running. He has further deposed that all the persons, who alighted from the jeep, ran towards the side on which Rajendra Grover had fled. It is pertinent to note that this witness in his cross-examination has admitted that from the place where the jeep collided with the motorcycle, the place where the incident took place, is not visible. He has also stated that the place from where he was hiding, the place of occurrence was not visible. 33. As far as criminal background of Raju Nayak (PW-2) is concerned, he has admitted that a case was registered against him under Section 302 of IPC and that the case is pending since 1989. Statement of this witness was recorded in 1998. This witness has stated that other than the murder case, there are two other cases also registered against him. He has also admitted that when the police vehicle came, he did not go to the Police to narrate the incident. The conduct of this witness is unnatural for the very reason that he himself is a criminal, facing charge for offence under Section 302 of IPC and other than that, he has two other cases registered against him. He has not informed the Police about the incident at the time when the Police reached the place of occurrence, which creates doubt on the veracity of this witness. Furthermore, this witness is said to have fallen down after being hit by the jeep, however, no injury has been sustained by him which also creates doubt about the prosecution story. As per this witness, Dilip Singh hit Rajendra Grover with a sword and Dashrath Singh hit Rajendra with an axe. Thereafter, all the persons gave beating to the deceased.

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Dr. S.K. Pathak (PW-22) in his cross-examination has admitted that injury No.1 and injury No.26 were not crescent shaped, however, the axe, which has been recovered from Dashrath Singh, is crescent shaped. Dr. H.L. Bairwa (PW-26) also in his cross-examination has admitted that it is not mentioned in the postmortem report that injury No.1 was sufficient to cause death and in the same way, injury No.26 was also not reported to be dangerous to life. This witness has also stated that the injuries were not crescent shaped, however, the axe, which has been recovered at the instance of Dashrath Singh, is crescent shaped. The injury caused to the deceased also does not coincide with the axe, which has been recovered at the instance of Dashrath Singh, as it has come in evidence that the injuries were caused by a crescent shaped axe. Furthermore, no blood group of the deceased has been produced before the Court by the prosecution in order to establish a match with the blood on axe recovered. Thus, in entirety, Raju Nayak (PW-2), who himself happens to be a person having criminal antecedents and having not narrated the incident to the Police immediately after the incident when the Police reached the spot, makes him an unreliable witness.

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Pankaj Sharma (PW-7) is yet another witness, relying on whose statement, learned Trial Court has convicted the accused appellants. As far as the statement of this witness is concerned, he was near the place of occurrence, at the time when the Police came. He also did not inform the police about the incident. As per this witness, he along with Raju Sharma and Virendra Sharma was waiting at a betel shop near the house of Raju Nayak and at that

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time, Rajendra Grover came and told them to wait there and left for the house of Raju Nayak. This witness has also narrated the registration number of jeep as RJ-14-2C-1919 and has stated that a jeep came and hit the motor-cycle of the deceased. As per this witness, when they reached the place where the incident had taken place, the Police had already arrived. As per this witness, the accused ran after the injured for around 60-70 steps. Though this witness has mentioned that they were standing in an empty plot near the place of occurrence, his admission that when they reached the place where Rajendra Grover was lying, the Police had already reached, clearly goes to show that this witness was not actually present at the time of occurrence and reached after the arrival of police, thus this witness is not reliable. The other two persons i.e. Raju Sharma and Virendra Sharma with whom this witness has stated that he was present, have not been produced by the prosecution as witnesses. Pankaj Sharma (PW-7) has admitted that he is having criminal antecedents. Moreover, witness of the site plans have not been examined by the prosecution. 36. Witness - Pankaj Sharma (PW-7) has stated before the Court that he has identified the accused persons in jail; Dashrath Singh vide Exhibit-P/12 and Mahavir Singh vide Exhibit-P/15. With regard to test identification parade, Gopal Singh (PW-23), Circle Officer, in his cross-examination, has admitted that when the accused were produced before him, they were not masked. He has also admitted that on 30.12.1997 accused were produced for police remand and in Exhibit-D/7, there is no mention that the accused were masked and produced before the Court. In the

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remand order also, it was not mentioned that face of the accused was covered when they were produced before the Court. It is also admitted that in Exhibit-D/9 & D/10, in the orders of the Magistrate, it is not mentioned that the accused have been produced with their faces covered. Thus, the test identification parade looses its significance. As admitted by Ganpat Singh (PW-15), Investigating Officer, in the site plan (Exhibit-P/5), the portion marked as ‘11’ is the tea kiosk where witness-Pankaj Sharma (PW-7) and two other persons were standing. From that place, the place marked as ‘X’ where the injured was lying, is not visible. The possibility of Pankaj Sharma witnessing the incident is thus not possible. This witness is also having criminal antecedents and he is a chance witness.

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As per the prosecution case, the deceased had gone to the house of Raju Nayak to talk about some cricket match, however, all the Investigating Officers have deposed before the Court that they were not aware of any cricket match, as to amongst whom it was to be played and as to who was the umpire. It is further important to note that Raju Nayak (PW-2), who has lodged the report (Exhibit-P/3) does not mention about Pankaj Sharma (PW7) in the FIR. Thus, basing conviction on the statements of Raju Nayak and Pankaj Sharma was not appropriate. One of the accused was acquitted by the learned Trial Court, six accused were acquitted by the this Court and complainant’s SLP against acquittal stands dismissed, thus the prosecution case as made out in the FIR is not established.

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As far as the present two appellants- Dashrath Singh and Mahaveer Singh are concerned, they are said to be armed with an axe and an iron pipe respectively. The axe recovered from Dashrath Singh was crescent shaped, whereas as per the doctors, the injuries caused to the deceased cannot be sustained by a crescent shaped axe. From Mahavir Singh, an iron pipe has been recovered, but the same was not found to be bloodstained. The dying declaration recorded enroute the hospital and the oral dying declaration made by the deceased to his brothers are not reliable as discussed by us in the preceding paragraphs. The statements of Raju Nayak (PW-2), Surendra Grover (PW-5), Mahendra Kumar Grover (PW-6) and Pankaj Sharma (PW-7) do not inspire confidence, as all of them have criminal antecedents and these witnesses are not of sterling-worth so as to base the conviction on their evidence. We, therefore, deem it proper to allow the Criminal Appeal No.375/2000 preferred by accused appellants – Dashrath Singh and Mahavir Singh and quash & set aside the judgment dated 18.05.2000 qua the present accused-appellants.

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D.B. Criminal Appeal No.331/2004 titled as Kripal Singh Versus State of Rajasthan also has very peculiar facts. Kripal Singh has been tried separately and has been convicted and sentenced vide judgment dated 28.01.2004. The facts in Kripal Singh’s case are that after the occurrence, police through its informer got information that Kripal Singh is the main accused, who has designed this incident and if any information is required, the same can be obtained from Kripal Singh. As per the prosecution case, on 29.12.1997 a team was made to arrest the

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accused. An informer of the Police called up Kripal Singh from the mobile of S.P. North and whatever communication took place between Kripal Singh and the Mukhbeer was recorded. S.P. North has not been produced before the Court to prove that his mobile set was used by the Mukhbeer . Moreover, possession of the mobile phone has not been established as there is no recovery of mobile phone from Kirpal Singh. Further, no call details have been produced to establish that a telephonic communication took place. The transcript of the call has been prepared from memory and the same had not been sealed. The informer has also not been produced, who posed himself as Dashrath Singh when he called Kripal Singh. It is also evident that Kripal Singh was being called at 2:49 PM on 29.12.1997, however, arrest of the accused took place after almost six hours. Since, Dudu is at a distance of just 60 kms from Jaipur, there is no reason as to why the Police did not raid the place of hiding of the accused, when they had information of the same at 2:50 PM. It is also important to note that no arrest memo was made at Bannaji mid-way at Dudu and the arrest was made at Jaipur. Even assuming that Kripal Singh informed the informer about the place of hiding of the accused, the same would not implicate the accused of having been involved in the commission of the offence. There is not an iota of evidence to establish that Kripal Singh was a member of the accused group or that he was involved in the conspiracy. Merely because Kripal Singh had informed that all the accused are at Dudu, at mid-way of Bannaji, police has filed charge-sheet against Kripal Singh for being a conspirator in the offence of murder of Rajendra Grover.

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Learned Trial Court has clearly erred in convicting the accused for offence under Section 302 read with Section 120-B of IPC as there was no evidence to connect the accused with the alleged offence. We are of the considered view that conviction of the accused - Kripal Singh cannot be sustained on this evidence. We, therefore, deem it proper to allow the Criminal Appeal No.331/2004 preferred by accused appellant – Kripal Singh and quash & set aside the judgment dated 28.01.2004.

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As a consequence of the above, both the appeals are allowed. The conviction and sentence of the accused appellants are set aside. They are acquitted of all the charges levelled against them. The accused appellants – Dashrath Singh, Mahaveer Singh and Kripal Singh are on bail during the pendency of these appeals, their bail bonds are forfeited.

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Appellants are directed to furnish personal bond in the sum 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 Registrar (Judicial) within two weeks from today 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.

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A copy of this order along with record of the learned Trial Court be sent forthwith.

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(BHUWAN GOYAL),J

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(PANKAJ BHANDARI),J

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SUNILSOLANKI/PS

Dashrath Singh and Anor v. State

Case brief

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Dashrath Singh and Anor v. State

Case brief

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