JUDGMENT
Shiv Kumar Sharma, J.
1. Three appellants alongwith one Kishan Lal were the accused on the file of learned Special Judge & Additional Sessions Judge, Alwar in Sessions Case No. 15/94. Vide judgment dated November 5, 1997, the learned trial judge found the appellants Kallu Ram, Mahendra and Chhagan Lal guilty and convicted and sentenced them as under:
KALLU RAM :
U/s. 302 IPC
Life imprisonment with fine of
Rs. 1000/- and
in default of payment of fine to further sentence of 2 months
R.I.
U/s. 324/34 IPC
One year R.I. with fine
of Rs. 200/- and in default of payment of fine to further undergo 15 days
RI.
CHHAGAN LAL &
MAHENDRA :
U/s. 302/34 IPC
Life Imprisonment with fine of
Rs. 1000/- and
in default of payment of fine to further sentence of 2 months
R.I.
U/s. 324 IPC
One year R.I. with fine
of Rs. 200/- and in default of payment of fine to further undergo 15 days
RI.
All the sentences were ordered to run concurrently.
Accused Kishan Lal was however acquitted. Assailing the said judgment of conviction, the appellants Kallu Ram, Chhagan Lal and Mahendra have preferred the instant criminal appeal.
2. The prosecution case as projected during trial was that on June 6, 1993 at about 10.30-11.00 a.m. informant Hans Raj alongwith his brother Shyam Sunder (now deceased) and Deepak son of Shyam Sunder visited the shop of one Shyam Lal Bajaj in village Alawada. At the relevant time the accused appellants along with their father Kishan Lal opened assault with knives in their hands. The accused persons inflicted knife blows on the person of Shyam Sunder resulting in his death. When the accused persons were inflicting injuries to Shyam Sunder, informant Hansraj with Deepak, endeavoring to save Shyam Sunder intervened in the scuffle. By reason of the intervention, informant as well as Deepak were also assaulted at the hands of accused persons. It was further stated that earlier on the same day the deceased had visited the house of accused persons in order to purchase meat, where he had indulged in a verbal dual with the accused persons. Informant Hansraj submitted a report at Police Station Ramgarh on the same day. On the basis of the aforesaid report Crime No. 125/93 was registered at Police Station Ramgarh against the accused appellants and one Kishan Lal. Statements of the witnesses under Section 161 Cr.P.C. were recorded. Inquest report was drawn. Autopsy on the dead body was conducted. Site plan was prepared. The accused were arrested, Knives used in the occurrence was recovered and after completion of the investigation the challan was filed. In due course the case came up for trial before the learned Special Judge and Additional Sessions Judge, Alwar. Charges under Sections 302, in the alternative 302/34 IPC, 324 and 324/24 1PC were framed and read over the same to the accused. The accused denied the charges and claimed to be tried. The prosecution examined as many as 22 witnesses and exhibited 30 documents. In defence four witnesses were examined and seven documents were exhibited. The accused in their explanation under Section 313 Cr.P.C. denied the allegations levelled against them. The learned trial judge after hearing the arguments convicted and sentenced the accused as mentioned above and acquitted accused Kishan Lal.
3. The prosecution in support of its case examined as many as 8 eye witnesses. Hansraj PW. 1 and Deepak Kumar PW. 2, are the injured eye witnesses. Jani Ram PW. 3, has not been named in the FIR. Shyam Lal PW. 4 is the shop keeper. Chetan Kumar PW. 5, Om Prakash PW. 6, Bhagwat Prasad PW. 7 and Mohan Lal PW. 8 did not to the prosecution story. Chandra Bhan PW. 9 had seen the accused running away from the spot. Prem Singh PW. 20 is the investigation officer.
4. Dr. Mahesh Jain PW. 21 conducted autopsy on the dead-body of deceased Shyam Sunder and as per the post mortem report Ex.P. 3 following antemortem injuries were sustained by him :
1. Lacerated wound 1 cm. x 1/4 cm. skin deep on left side just lateral to eye.
2. Abrasion 2 in Nos. 1.5 cm. x 1cm. (Lt.) frontol head just above eye.
3. Multiple Linear abrasions on (Lt.) side of Neck size ranging from 3 cm. to 5 cm.
4. Abrasion 3 in nos. on (Lt.) side of upper chest size 4 to 8 cm. in length.
5. Abrasion 2 cm. x 1 cm. on (Lt.) elbow. Post aspect.
6. Incised wound 1 cm. x 1/2 cm. x 1/2 cm. on (Rt.) F. arm ant. aspect middle 1/3 part.
7. Abrasion 1 cm. x 1/2 cm. on (Rt) side of lower side of lower chest of ant. auxiliary line.
8. Incised wound 1 cm. x 1/2 cm. 1/2 cm. on (Rt.) side of chest 5th intercostal space of ant auxiliary line level.
9. Stab wound 3 cm. x 1/2 cm. (Entering into (Lt.) thoresic cavity). At 6th intercostal space on (Lt.) side of chest, just lateral to sternum. This stab wound is entering into left thoresic cavity and caused injury to pericardium and left ventricle (injury to pericardium and Heart).
Cause of death was shock and haemorrhage caused due to injury No. 9 which was stab wound caused on the heart.
5. Dr. Mahesh Jain also examined injuries received by Hansraj PW. 1 and Deepak Kumar PW. 2 As per injury report Ex. P.1, Hansraj PW. 1 received following injuries :
1. Lacerated wound 4 cm. x 1/2 cm. muscle deep on (Rt.) occipito perietal region.
2. Incised wound 2 cm. x 1/2 cm. muscle deep on Rt. Lumber region of back.
3. Incised wound 1/2 cm. x 1/4 cm. muscle deep on (Lt.) midthorecic region of back near mid line.
4. Abrasion linear 3 cm. long on Lt. side of Lumber region of back.
5. Abrasion 1/2 cm, x 1/2 cm. on Lt. side of abdomen hypocondrim part out auxiliary fine.
6. According to Ex. P.2 Deepak Kumar PW. 2 received following three injuries:
1. Linear abrasion 2 cm. long on Lt. side of Neck.
2. Linear Abrasion 5 cm. long on Lt. side of Neck below Inju. No. 1.
3. Bruise 4 cm. x 3.5 cm. on Rt. side of back mid thorecic region with abrasion marks over bruise.
7. Coming to the testimony of Hansraj PW. 1, it may be noticed that he is the real brother of the deceased. In his deposition Hansraj supported the version narrated in the FIR and stated that he along with Shyam Sunder and Deepak had gone to the shop of Shyam Lal Bajaj for purchasing clothes. As soon as they reached the shop Master Ram Kishan exhorted his sons Kallu, Mahendra and Chhagan and asked them to kill informant Shyam Sunder and Deepak. Thereafter Master Ram Kishan and his three sons who were armed with knives and chhuras attacked them. Master Ram Kishan inflicted knife injuries on the right hand of Shyam Sunder. Kallu inflicted knife blows just below the ribs of Shyam Sunder, as a result of which Shyam Sunder fell down. Mahendra and Chhagan also inflicted knife blows on the person of Shyam Sunder. When Hansraj informant intervened Master Ram Kishan gave knife blows on his head. Mahendra and Chhagan inflicted knife blows on his back. When Deepak made attempt to caught hold of Kallu, Kallu took bite on his back and flayed away. Hansraj further stated that in the morning of the said day there were altercations between them and the accused. Shyam Sunder was taken to the Hospital where postmortem on his dead body was conducted. In the cross examination Hansraj stated that report Ex. P.15 was got written by him from Arji Navis Budhalal. Some help was also given by his relative advocate Jagdish Satlja. However in his cross examination Hans Raj stated that he got the report Ex. P.15 written by Budha lal deed writer and some help was provided by his relative Jagdish Satija Advocate. When he (Hans Raj) became conscious, he found Jagdish Satija Advocate standing outside the police station. Hans Raj further deposed that it was not stated in the report Ex. P.15 that Mahendra and Chhagan inflicted knife blows on the person of Shyam Sunder. In his police statement Ex. 0.4 also he did not narrate this fact. It was not known to him even after the incident that as to on which part of the body of Shyam Sunder, Chhagan and Mahendra inflicted injuries.
8. Deepak Kumar PW. 2 in his deposition stated that on being exhorted by Master Ram Kishan Kallu, Mahendra and Chhagan opened chhuras and attacked his father Shyam Sunder. Master Kishan Lal inflicted knife blow on the right hand of Shyam Sunder. Thereafter Kallu gave knife blow just below the ribs of Shyam Sunder. Thereafter Chhagan and Mahendra indiscriminately inflicted knife blows on his person. At the same time Hansraj appeared and made attempt to intervene then Master Kishan Lal gave knife blow on the head of Hansraj and Chhagan inflicted blows on his back. Then he made attempt to caught hold of Kallu, but Kallu took a bite on his back and fled away. In the cross examination Deepak Kumar deposed that he also put his signatures on the report written by the deed writer and advocate Satija also came to the police station. He further stated that Chhagan and Mahendra each inflicted two to three knife blows on the stomach of his father. Although he stated before the police this fact but police did not record it in his police statement.
9. Jani Ram PW. 3 deposed that on June 6, 1993 around 10.30-11 a.m. Shyam Sunder and Deepak came to the shop of Shyam Lal Bajaj. After some time his brother Hansraj also came over there. Kishan Lal, Kallu, Chhagan and Mahendra inflicted knife blows on the person of Shyam Sunder. Kallu gave knife blow on the left ribs of Shyam Sunder, as a result of which he fell down. When Deepak and Hansraj intervened, one of the accused inflicted knife blow on the back of Hansraj and Kallu took a bite on the back of Deepak.
10. Shyam Lal PW. 4 stated that on June 6, 1993 around 10-11 a.m. when Deepak, Shyam Sunder, and Hansraj came to the shop, Kallu, Mahendra and Chhagan armed with knives attacked on them. Kallu inflicted knife blow on the person of Shyam Sunder. When Deepak attempted to intervene Kallu took bite on his back. When Hansraj made attempt to take care of Shyam Sunder, Mahendra and Chhagan inflicted knife blows on the back and head of Hansraj. They took Shyam Sunder to Ramgarh.
11. Chetan Kumar PW. 5, Om Prakash PW. 6, Bhagwat Prasad PW. 7 and Mohan Lal PW. 8 did not support the prosecution case and they were declared hostile. Chandrabhan PW. 11 stated that on June 6, 1993 around 10.30-11 a.m. Kallu, Chhagan and Mahendra killed Shyam Sunder hear the shop of Shyam Lal. He had seen Kallu putting out knife from the rib of Shyam Sunder. He then intimated the Police Station Ramgarh over telephone. Thereupon police came to the spot.
12. Tilak Raj PW. 10 stated that he received information on June 6, 1993 that his brother Shyam Sunder was injured in an incident. Thereafter he went to Alavada, and took the dead body of Shyam Sunder to Ramgarh. Suresh Kumar PW. 14 is the signatory of the memos of site plan, blood smeared soil and clothes of the injured. Prem Singh Shekhawat PW. 20 is the investigating officer, who testified the recoveries of knives at the instance of the accused persons.
13. Mr. S.R. Bajwa, learned Senior Counsel appearing for the appellants submitted that the prosecution has not come to court with the true story. Although the prosecution has examined two injured witnesses Hans Raj (PW. 1) and Deepak Kumar (PW. 2) but their conduct and various statements made by them during investigation and trial render the entire prosecution story suspect. Mr. Bajwa, learned Senior Counsel placed reliance on Chhita v. State of Rajasthan (1), wherein injured witness who sustained 20 incised wounds was not relied in view of his subsequent conduct and various statements made during trial.
14. Mr. Bajwa, next contended that in the instant case the prosecution has led two sets of evidence. On the one hand Hans Raj PW. 1, Deepak Kumar PW. 2, Jani Ram PW. 3 and Shyam Lal PW. 4 made an attempt to implicate the appellants but on the other hand another set of evidence consisting of Chetan Kumar PW. 5, Om Prakash PW. 6, Bhagwat Prasad PW. 7 and Mohan Lal PW. 8, which did not toe the prosecution case. Thus it is difficult to find conviction of the appellants. Reliance is placed on Harchand Singh v. State of Haryana (2), Hardip Singh v. State of Punjab (3).
15. Mr. Bajwa, learned Senior Counsel further canvassed that alleged recovery of weapon was affected after twenty days and it is against the common sense and recovery of weapon at the instance of the accused becomes doubtful. Reliance is placed on Chandran v. State of Madras (4). Mr. Bajwa, learned Senior Counsel from another angle also made an attempt to render the recovery of weapon doubtful by contending that although the weapon is said to have been stained with human blood but the prosecution has not established that the blood found on weapon tallied with the blood group of the deceased. Reliance is placed on Hardyal v. State of Rajasthan (5).
16. Learned Senior Counsel next contended that no reliance can be placed on the testimony of Hans Raj PW.1, Deepak Kumar PW. 2, Jani Ram PW.3 and Shyam Lal PW. 4 as they are interested witnesses and made so may improvements in their testimony from stage to stage. Reliance is placed on State of Haryana v. Jai Prakash (6).
17. Mr. Bajwa, learned Senior Counsel further canvassed that from the evidence adduced by the prosecution itself it is not a case of common intention so as to attract the provisions of Section 34 IPC. Mere presence of a person near the place of occurrence does not amount to participation in the crime. Even from the appellant Mahendra no weapon allegedly used in the offence was recovered. Mr. Bajwa’s alternative submission was that if for the sake of argument it is found that appellant Kallu committed crime then also out of injuries attributed to Kallu only injury No. 9 was serious and other injuries were caused during scuffle. Therefore it can safely be inferred that Kallu had no intention to cause the death of the deceased and case against Kallu does not travel beyond Section 304 Part II IPC. Reliance is placed on Masumsha H. Musalman v. State of Maharashtra (7).
18. Per contra Mr. Madhav Mitra learned Public Prosecutor supported the conviction of the appellants and urged that genesis of the prosecution case is not shaken and charges against the appellants stood proved beyond reasonable doubt. Reliance is placed on 1996 Cr.L.J. 4444 (SC, AIR 1973 SC 863 and AIR 1997 SC 1505).
19. We have pondered over the submissions advanced before us.
20. After closely scanning the material on record we noticed the following salient features in the prosecution evidence :
(i) First information report was written by one Budha Lal, deed writer with the help of Jagdish Satija Advocate, who was the relative of the informant Hans Raj. (PW. 1).
(ii) According to FIR, Kallu inflicted knife blows on the stomach and ribs of Shyam Sunder and Kishan Lal gave knife blows on his right hand. Mahendra and Chhagan did not cause any injury to Shyam Sunder. But Kishan Lal Mahendra and Chhagan respectively inflicted knife blows on the head and back of Hans Raj and Kallu took a bite on the back of Deepak.
(iii) Shyam Lal, Chetan and Chandrabhan were named as eye witnesses in the FIR.
(iv) Trial judge did not place reliance of the prosecution witnesses qua the co-accused Kishan Lal and acquitted him.
(v) The fact in regard to causing injuries to Shyam Sunder by Mahendra and Chhagan was not stated by Hans Raj and Deepak in their police statements.
21. After having closely analysed the entire prosecution evidence we find that the prosecution witnesses made attempt to develop a new case against appellants Mahendra and Chhagan. As per the FIR no injury on the person of deceased Shyam Sunder had been attributed to them but at the trial the allegations for having caused injuries by knives to Shyam Sunder were levelled against them. The injured eye witnesses Hans Raj (PW. 1) and Deepak (PW. 2) made so many improvements from stage to stage and even they disowned the material parts of their police statements. Learned trial judge disbelieved their testimony qua co-accused Kishan Lal and acquitted him. Against Kishan Lal it was stated in the FIR by Hans Raj that Kishan Lal inflicted knife blow on the right hand of Shyam Sunder. Against Mahendra and Chhagan Lal it was alleged that they inflicted knife blows on the head and back of Hans Raj. The prosecution witnesses also deposed at the trial against Kishan Lal but they were not believed by the learned trial judge. In view of the finding of the learned trial judge in respect of co-accused Kishanlal possibility of over implication of the accused in the case cannot be ruled out. As already noticed by us while examining the testimony of Hans Raj that he sought assistance of Jagdish Satija Advocate before instituting FIR. Hans Raj also deposed that one Budha deed writer wrote the FIR. The prosecution although did not choose to produce Buddha but the defence got him examined. Buddha Lal deed writer (DW. 4) in his deposition categorically stated that he was initially asked to write report only against Kallu but on being pursuaded by some persons, he subsequently added the names of three more accused persons. In view of the above facts we find that the pieces of evidence on which the prosecution chooses to rest its case against the appellants Mahendra and Chhagan Lal are so brittle that they crumble when subjected to close and critical scrutiny. In our considered opinion the superstructure of the prosecution case is built on entirely insecure foundation and we have no other option except to give benefit of doubt to appellants Chhagan lal and Mahendra.
22. So far as the allegations against appellant Kallu are concerned we find the testimony of Hans Raj (PW. 1) and Deepak (PW. 2) consistent. Both these witnesses categorically stated that Kallu inflicted knife blows just below the ribs of Shyam Sunder. The ocular testimony has been corroborated by medical evidence. Undoubtedly there are exaggerations in the statements of Hans Raj and Deepak but grain can easily be separable from the chaff. In Mohd. Iqbal M. Shekh v. State of Maharashtra (8), their Lordships of the Supreme Court observed thus :
“We are quite aware of the principle that in a country like India where it is difficult to find witness who has not made any embellishment or exaggeration, and therefore, in such cases court would be justified in separating the chaff from the grain and then acted upon the grain.”
The discrepancies referred to by learned Senior Counsel in the statement of Dr. Mahesh Jain (PW. 1), in our view, did not render the ocular evidence untrustworthy qua the appellant Kallu. It appears that Dr. Mahesh Jain probably was not able to match the cross examination lawyer. In Leela Ram v. State of Haryana (9), their Lordships of the Supreme Court while appreciating the medical testimony, indicated as under –
“. . . . .Needless to say that the Doctor probably has not been able to match the cross examining lawyer and there was thus an unequal dual between the medical man and a refined lawyer.”
23. That takes us to the alternative submission of the learned senior counsel that from the circumstances of the case it can be inferred that Kallu had no intention to kill Shyam Sunder. According to learned counsel that as only injury No. 9 received by Shyam Sunder was serious and other injuries were sustained during scuffle, the case against appellant Kallu does not travel beyond Section 304 Part II IPC. We find ourselves unable to accept this contention. The manner in which appellant Kallu had caused repeated injuries, render him liable to the act that may be covered under clause thirdly of Section 300 IPC. Facts of Masumsha H. Musalman v. State of Maharashtra (supra), are distinguishable and ratio indicated in the said case is not applicable to the facts of the instant case. After having closely considered the statements of Sher Singh (DW. 1) Pyare (DW. 2) and Smt. Kalawati (DW. 3) we find the defence introduced by the appellant Kallu as after thought. On giving equal treatment to the testimony of these defence witnesses with those of the prosecution we find that their testimony is of no help to appellant Kallu. We however, do not find the charge under Section 324/24 IPC established against appellant Kallu.
24. As a result of above discussion we allow the appeal of appellants Chhagan Lal and Mahendra and set aside their conviction and sentence and acquit them from the charges under Section 302/34 and 324 IPC. While dismissing the appeal of appellant Kallu we confirm the conviction and sentence awarded to him under Section 302 IPC. Appellant Kallu however stands acquitted from the charge under Section 324/34 IPC. Appellants Chhagan Lal and Mahendra are on bail, they need not surrender and their bail bonds stand cancelled. Appellant Kallu who is in jail, shall remain in custody to serve out the sentence. Impugned judgment of the learned trial judge is modified as indicated above.
