Full Judgment Text
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CASE NO.:
Appeal (crl.) 215 of 1999
PETITIONER:
Shankarlal
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 07/05/2004
BENCH:
N Santosh Hegde, B P Singh & Dr.AR Lakshmanan.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE, J.
Appellant has been convicted by the Additional Sessions Judge,
Ramsinghnagar for an offence punishable under section 302 IPC and was
sentenced to undergo imprisonment for life and a fine of Rs.100. Said
conviction and sentenced came to be confirmed by the High Court of
Judicature for Rajasthan at Jodhpur. It is against the said conviction and
sentence imposed by the two courts below that the appellant is before us in
this appeal.
Briefly stated the prosecution case is that appellant and one Om
Prakash deceased in this case were working as labourers with one Pokar
Ram in the year 1980. They were employed to water fields wherein some
wheat and gram were sown. On 4.4.1980 one Ram Rakh son of said Pokar
Ram wanted the field to be watered therefore in the early morning at about
4 a.m. he sent the appellant and the deceased to irrigate the land. At about
9 a.m. that morning said Ram Rakh took food for the said two persons who
were working in the field. At that time it is stated the appellant complained
to said Ram Rakh that deceased Om Prakash is not doing his work
properly and to advise him properly. It is stated said Ram Rakh settled the
misunderstanding between the appellant and the deceased and went to his
other fields. It is the prosecution case that one Sohan Singh PW-6 who is
also a resident of the same village as Ram Rakh had entered into an
agreement with the latter for the sale of Gowar about 10 days before the
date of incident. Since PW-6 had a buyer for the said Gowar and the same
had to be weighed on the date of incident he wanted to meet PW-2 and
went to his house but he was told that Ram Rakh was in his field therefore
PW-6 started going towards the field of Ram Rakh which was about 4-5
miles away from the village by foot. It is during this journey of PW-6 it is
alleged at about 1.30 p.m. he heard a noise of quarrel from the corner of a
field and when he moved towards the said place he saw one person hitting
another with an axe. It is the prosecution case that this witness later
identified appellant as the person who was assaulting the other person.
PW-6 further states that when he reached near the place of attack he saw 2
axe injuries on the victim and he also saw the appellant fleeing from the
place of incident. Having gone near the place of attack and witnessed the
attack this witness stated that he got frightened and thinking that he may
also be attacked he returned to the village by taking another route. By the
time he returned to the village it was about 4 or 4.15 p.m. He then went to
the house of Ram Rakh and his brother Khyali Ram but he could not meet
them therefore he came to the square of the village near the Hanuman
Mandir and he saw PW-2 Khyali Ram coming. That is when he mentioned
to Khyali Ram about the incident in question. It is the case of the
prosecution thereafter PW-2 and 5 to 7 people went to the place of incident
and saw the deceased lying dead thereafter PW-2 went to the village
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Sarpanch and accompanied by him went to the Police Station at Suratgarh
and lodged a complaint at about 3.15 a.m. on 5.4.1980, Police Station
being about 30 miles away from the place of incident. On a statement
recorded therein the I.O. registered a case and came to the place of incident
and having completed the investigation thereafter filed a chargesheet and
based on the evidence produced by the prosecution in the trial the appellant
was convicted as stated above which conviction came to be confirmed by
the High Court.
In this appeal Mr. V S Chauhan, learned advocate appearing for the
appellant contended that the only eye witness to the incident in question
being PW-6 who is a chance witness his evidence ought to have been
considered more carefully than has been done by the 2 courts below. He
contended that the possibility of this witness being present at that time of
the day at that place is next to impossible and from the contradictions in
his evidence it is clear that he is really not an eye witness but a set up
witness. He also pointed out though the incident in question according to
the prosecution had occurred at about 1.30 p.m. a complaint in this regard
was lodged only at 3.15 a.m. on the next day. The Police Station even
though about 30 miles away in the normal course it would not have taken
so much time for anybody to commute and reach the Police Station
because of the availability of the tractor in the village. Learned counsel
also pointed out that a perusal of the complaint gives an impression that it
is a document prepared after considerable deliberation and most likely
having noticed a blind murder by suspicion appellant was blamed as an
accused. He also pointed out that the alleged motive is too trivial and on
the facts of this case hardly any ground for committing the murder.
Ms. Madhurima Tatia, learned counsel appearing for the respondent
State however rebutted the argument of learned counsel for the appellant
and contended that it is but natural for a witness like PW-6 to have made an
effort to contact Ram Rakh because he was committed to get the Gowar
weighed so that the purchasers could collect the same therefore in this
process he had gone in search of Ram Rakh and it is in the field of said
Ram Rakh he found the appellant attacking the deceased. She also
contended as soon as he returned back to the village he intimated this
incident to PW-2 and thereafter by the time they could go to the place of
incident and return to village and contact the village Sarpanch it had
become almost dark hence delay if any, occasioned in lodging the
complaint has been explained by the prosecution therefore she supported
the judgments of the 2 courts below.
Even according to the prosecution the only witness to the incident in
question is PW-6 therefore as contended by learned counsel for the
appellant we will have to examine his evidence carefully. If we do so then
we notice that on the date of incident he had gone to a village Upli for some
work. From there he came back by bus at about 11’O clock. He then
allegedly went to the village to meet Ram Rakh where he was told by his
wife that the latter had gone to the field. It is the prosecution case itself that
the distance between the field of Ram Rakh and the village is about 4-5
miles and PW-6 covered that distance on foot and when he reached near the
field of Ram Rakh he heard a quarrel and when he went towards the place
of quarrel he saw the appellant attack the deceased with an axe. It is his
further case that when he reached near the deceased the appellant ran away.
It is at this point of time he states that he got scared and he took a different
route than the one he took on the way and reached the village at about 4 or
4.15 p.m. It is his case that when he went to the house of Ram Rakh he
could not find him therefore he came near the village square where he met
PW-2 Khyali Ram. From the above evidence of PW-6 it is apparent that
though there were persons available on his way back, he did not inform
anybody about the incident. Even when he reached the village and met Ram
Rakh’s wife he did not inform her about the incident and it is for the first
time he informs about this incident to PW-2 at the village square at about
4.15 p.m. Contrary to what he stated in the examination in chief that he saw
only one assault on the deceased, in the cross examination he stated that he
saw the appellant attack the deceased twice and both the injuries were
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caused in his presence. It is also to be noticed from his cross examination
that when he met PW-2 Khyali Ram and told him about the incident in
question but PW-2 supposedly told him that he had already come to know
of the incident from PW-14. The prosecution has not found how PW-14
came to know of the incident. In this background if we appreciate the
evidence of PW-6 we notice the fact that he is purely a chance witness
whose presence at the place of the incident is highly doubtful. His conduct
too seems to be unnatural in not informing anyone else in the village until
he met Khyali Ram at the village square. We also notice that there is
unexplained delay in filing the complaint inasmuch as according to the
prosecution the incident in question took place at about 1.30 p.m. and a
complaint was lodged only at 3.15 a.m. on 5.4.1980. Though the distance is
about 30 miles from the place of incident, the complainant had the facility
of using the tractors available in the village and they did use the same for
travelling to the Police Station. In such circumstances this unexplained long
delay also creates a doubt in our mind as to the genuineness of the
prosecution case. Once we are not convinced with the evidence of PW-6
then there is no other material to base a conviction on the appellant hence
we are of the opinion that the appellant is entitled to the benefit of doubt
therefore this appeal succeeds and is allowed. The judgment and order of
conviction of the 2 courts below are set aside. The appellant is acquitted of
the charge framed against him. From the records we notice that the
appellant is on bail. If so his bailbonds shall stand discharged.