{"id":166904,"date":"2010-01-05T00:00:00","date_gmt":"2010-01-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/devi-lal-ors-vs-state-on-5-january-2010"},"modified":"2015-10-23T09:31:17","modified_gmt":"2015-10-23T04:01:17","slug":"devi-lal-ors-vs-state-on-5-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/devi-lal-ors-vs-state-on-5-january-2010","title":{"rendered":"Devi Lal & Ors vs State on 5 January, 2010"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Devi Lal & Ors vs State on 5 January, 2010<\/div>\n
    IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN\n                      AT JODHPUR\n\n\n                       J U D G M E N T\n\n\nDEVI LAL & Ors.            V\/S   The State of Rajasthan\n\n\n         D.B. CRIMINAL APPEAL No. 43 of 1987\n\n\nDate of Judgment           :              5thJanuary, 2010\n\n\n                           PRESENT\n                  HON'BLE SHRI N.P.GUPTA,J.\n                  HON'BLE SHRI C M TOTLA,J.\n\n\nMr. NIRANJAN SINGH for Mr. MK GARG, for the appellant.\nMr. A.R. NIKUB, PP, for the State.\n\nBY THE COURT: (Per Hon'ble Gupta, J.)<\/pre>\n
         This appeal by the five accused persons<\/p>\n
Devilal, Lalchand, Rajiram, Mohanlal, and Utama Ram<\/p>\n
arises out of the judgment of the learned Additional<\/p>\n
Sessions Judge No.2, Hanumangarh dt. 30.1.1987 passed<\/p>\n
in Sessions Case No. 70\/1985 convicting and sentencing<\/p>\n
each of the accused appellant as under:-<\/p>\n
Under Sec.148 IPC-         Sentenced to one year’s R.I.
\nU\/s. 302 r\/w 149 IPC-      Imprisonment for life and fine
\n                           of Rs. 500\/-; in default to
\n                           undergo three months’ R.I.\n<\/p>\n
\nU\/s. 27 of the Arms Act- One year’s R.I. And a fine of
\n                           Rs. 200\/- in default to
\n                           undergo one month’s R.I.\n<\/p>\n
\n         The appeal was admitted on 9.2.1987, and<\/p>\n
thereafter, after receipt of the record, the sentence<\/p>\n
awarded to the accused persons were also ordered to be<\/p>\n
suspended.\n<\/p>\n
                                                        2<\/span><\/p>\n
            However, as transpires from the marginal<\/p>\n
notings of the order-sheet dt. 26.4.1999, that the<\/p>\n
appellants no. 1 and 4 Devilal and Mohanlal<\/p>\n
respectively had expired. Thus, the present appeal<\/p>\n
survives only on behalf of Lalchand, Raji Ram, and<\/p>\n
Utma Ram.\n<\/p>\n<\/p>\n
            The necessary facts are, that on 20.9.1982 at<\/p>\n
about 8.30 A.M. P.W. 3 Jagdish lodged a first report<\/p>\n
Ex. P-4 at Police Station Hanumangarh Junction,<\/p>\n
alleging interalia that at about 6.45 in the morning<\/p>\n
that day the informant along with his brother Lalchand<\/p>\n
and one Balwant (deceased) being the brother in law of<\/p>\n
Lalchand were going to Dhanis of 32 LLW for the<\/p>\n
purpose of purchasing milching buffalo, when they<\/p>\n
reached in the Rohi, where their own land existed, one<\/p>\n
Red Jeep overtook them, and stopped a little ahead<\/p>\n
wherefrom 9 accused persons being Devilal, Utma Ram,<\/p>\n
Mohanlal, Raji Ram, Chanan Ram, Mani Ram, Chhotiya @<\/p>\n
Jarnail Singh, Lalchand and Saudagar Singh alighted,<\/p>\n
and challenged them. Devilal gave out that they should<\/p>\n
not be spared now, and thereupon the accused persons<\/p>\n
started indiscriminately firing. However, informant<\/p>\n
and his brother Lalchand could escape, but Balwant<\/p>\n
Singh who was hiding in the Gwar was spotted, and was<\/p>\n
shot. After receiving gun shot injury the victim<\/p>\n
raised a cry, whereupon the informant and his brother<\/p>\n
went and found the victim badly injured. They carried<\/p>\n
him for some distance but he died. Thereupon a formal<\/p>\n
report Ex.P-5 was recorded, and registered for the<\/p>\n
offence under Section 302, 34 IPC, and 27 of the Arms
\n                                                       3<\/span><\/p>\n
Act, necessary investigation was conducted, and<\/p>\n
challan was filed in the Court of Magistrate<\/p>\n
concerned, wherefrom the case was committed, and was<\/p>\n
ultimately tried by the learned trial court.<\/p>\n
          The learned trial court framed charges<\/p>\n
against the accused Mani Ram, Saudagar Singh, and<\/p>\n
Chhotiya @ Jarnail Singh for the offence under Section<\/p>\n
147 and 302 read with Section 149 IPC, and charged all<\/p>\n
other accused persons for the offence under Sections<\/p>\n
148, and 302 read with Section 149 IPC, while all the<\/p>\n
accused persons were also charged for the offence<\/p>\n
under Section 27 of the Arms Act. During trial the<\/p>\n
prosecution examined six witnesses, and tendered in<\/p>\n
evidence numerous documents while the defence did not<\/p>\n
examine any witness, however, tendered few documents<\/p>\n
in evidence. In statement under Section 313 Cr.P.C.<\/p>\n
the accused persons took a stand of denial. The<\/p>\n
accused Lalchand took the stand, that Jagdish and his<\/p>\n
brother Lalchand want to snatch away his land which is<\/p>\n
of his ownership, and possession, and where he is<\/p>\n
living with his family by erecting a Dhani, and by<\/p>\n
involving him in a case he wants to illegally grab the<\/p>\n
land, and that the land is his ancestral one; while<\/p>\n
the other accused persons took the stand of having<\/p>\n
been falsely implicated on account of somehow being<\/p>\n
related with Lalchand, or being working on the field<\/p>\n
of Lalchand etc. The accused Devilal also pleaded,<\/p>\n
that informant Jagdish is an educated person, who with<\/p>\n
the collusion of the police authorities wants to<\/p>\n
implicate the entire family and grab the land. Learned<\/p>\n
trial court after completing the trial, by the
\n                                                       4<\/span><\/p>\n
impugned judgment acquitted four accused persons,<\/p>\n
being Chanan Ram on the ground of his having not<\/p>\n
inflicted any injury, and also acquitted Mani Ram,<\/p>\n
Chhotiya @ Jarnail Singh, and Saudagar Singh on the<\/p>\n
ground that they did not in any manner take part in<\/p>\n
the incident. Thus, qua these four persons it is found<\/p>\n
that it is not established beyond doubt that they<\/p>\n
formed unlawful assembly, or committed rioting, while<\/p>\n
the other five accused persons were found guilty for<\/p>\n
the offences as mentioned above, and were sentenced as<\/p>\n
above.\n<\/p>\n<\/p>\n
         Arguing the appeal, assailing the impugned<\/p>\n
judgment good amount of criticism was advanced against<\/p>\n
the evidence of informant P.W.3 Jagdish, and P.W.4<\/p>\n
Lalchand, for that purpose the site plan, and site<\/p>\n
inspection note Ex. P-6 and Ex.P-6A were also pressed<\/p>\n
into service. Then, Ex.P-13 was also relied upon to<\/p>\n
show, that from the person of the deceased one empty<\/p>\n
of 8 mm bore was recovered. Reliance was placed on the<\/p>\n
statement of I.O. P.W.5 Richhpal Singh, and it was<\/p>\n
contended that as a matter of fact the land is<\/p>\n
ancestral land of Lalchand appellant which the<\/p>\n
prosecution party wanted to grab, on account of the<\/p>\n
fact, that they claim to have got executed a sale deed<\/p>\n
from Lalchand’s grand mother Santo, though Lalchand is<\/p>\n
living on the land with his family, having erected a<\/p>\n
Dhani. It was contended that in the earlier evening<\/p>\n
the prosecution party came in a body, armed with<\/p>\n
firearm, and to create an atmosphere of terror in the<\/p>\n
area, firing was done, rather it was the prosecution<\/p>\n
party who had come on the fateful day in a body armed
\n                                                       5<\/span><\/p>\n
with deadly weapons, including firearms, to somehow or<\/p>\n
the other dispossess Lalchand, and for that purpose it<\/p>\n
was the prosecution party who opened indiscriminate<\/p>\n
firing, and unfortunately in that process one of the<\/p>\n
fire hit their own man Balwant, and Jagdish taking<\/p>\n
advantage of the unfortunate death of Balwant, on<\/p>\n
account of already existing dispute has cooked up the<\/p>\n
incident, in another attempt of snatching the land<\/p>\n
from the appellant. It was also submitted that for the<\/p>\n
incident of earlier evening F.I.R. was also lodged,<\/p>\n
whereupon as admitted by the Investigating Officer<\/p>\n
P.W.5, a challan was filed. It was also contended that<\/p>\n
on account of the registered sale deed being fake or<\/p>\n
forged, in that regard also the prosecution was<\/p>\n
launched, and thus it is clear, that it was the<\/p>\n
prosecution party, who somehow or the other wanted to<\/p>\n
grab the land, and unfortunate incident has been<\/p>\n
foisted on the appellants.\n<\/p>\n<\/p>\n
         Learned Public Prosecutor, on the other hand,<\/p>\n
supported the impugned judgment, and submitted that<\/p>\n
the case rests on the testimony of the two eye<\/p>\n
witnesses P.W. 3 and P.W.4, and there is no reason to<\/p>\n
disbelieve their statements. Regarding the deposition<\/p>\n
by the Investigating Officer P.W. 5 during cross<\/p>\n
examination, it was contended to be only hearsay, and<\/p>\n
being not admissible in evidence. It was also<\/p>\n
submitted that the evidence of P.W. 3 and P.W. 4 is<\/p>\n
plain and simple, when they were going to purchase<\/p>\n
buffalo, there was no occasion for the accused to go<\/p>\n
armed with any weapon, and they were waylaid by the<\/p>\n
accused persons unawares, and the accused persons
\n                                                       6<\/span><\/p>\n
opened firing, wherein the deceased had died. Thus,<\/p>\n
there is no reasonable ground to interfere with the<\/p>\n
impugned order of conviction.\n<\/p>\n<\/p>\n
         We have heard learned counsel, have<\/p>\n
considered their submissions, and have gone through<\/p>\n
the record closely and carefully.\n<\/p>\n<\/p>\n
         Since the prosecution relies upon, and rests<\/p>\n
its case mainly on the evidence of P.W. 3 and 4, we<\/p>\n
may gainfully recapitulate their evidence in order to<\/p>\n
see as to whether it would be safe for us to rely upon<\/p>\n
them to find the three accused appellants guilty for<\/p>\n
capital offence.\n<\/p>\n<\/p>\n
         Jagdish informant P.W. 3 has deposed, that<\/p>\n
the three persons were going to purchase milching<\/p>\n
buffalo in the Dhani of 32 LLW, and when they reached<\/p>\n
near the land purchased by them, at about 7 A.M. a red<\/p>\n
colour jeep overtook them, and stopped a little ahead,<\/p>\n
wherefrom nine named accused persons alighted. He has<\/p>\n
described that the accused Devilal was armed with 12<\/p>\n
bore gun, while the accused Lalchand, Mohanlal and<\/p>\n
Rajiram were armed with pistol, and Utama was having a<\/p>\n
Pakki Gun, Chanan Ram was having Gandasi, and the<\/p>\n
remaining three accused persons were empty handed. He<\/p>\n
further deposed that immediately on alighting the<\/p>\n
accused persons challenged, and Devilal told that they<\/p>\n
should not be spared today, and the accused persons<\/p>\n
opened indiscriminate fire, the witness and his<\/p>\n
brother Lalchand could escape, while the deceased was<\/p>\n
hiding in Gwar, who was shot by the accused persons,
\n                                                       7<\/span><\/p>\n
on hearing hue and cry of the injured they reached<\/p>\n
near Balwant, and when they were carrying him to<\/p>\n
village, on the way he succumbed to the injuries. Then<\/p>\n
Lalchand was left to look after the corpse, and the<\/p>\n
witness went to police station to lodge the first<\/p>\n
information report. He has proved Ex.P-4 and P-5. It<\/p>\n
is also deposed that there existed a dispute between<\/p>\n
the prosecution side, on the one hand, and Lalchand,<\/p>\n
the accused party on the other hand, and on account of<\/p>\n
that enmity the incident has been caused. In cross<\/p>\n
examination he has admitted that he is ex-student of<\/p>\n
Rampuriya College, and had also admitted to have left<\/p>\n
attending college for the last one year, and despite<\/p>\n
leaving college he is continuously living in Bikaner<\/p>\n
in a rented room, and claims to be having bachelor<\/p>\n
degree in commerce. According to him earlier they had<\/p>\n
46 bighas of land in 29 LLW. Then, he has stated that<\/p>\n
he did not give out orally to the S.H.O., rather gave<\/p>\n
it in writing which writing was scribed by him sitting<\/p>\n
outside. Then, he was confronted with his police<\/p>\n
statement Ex.D-2 regarding omission about existence of<\/p>\n
Dhani of the informant on the land in question, but he<\/p>\n
could not give out any reason for the omission. Then,<\/p>\n
he was confronted with the portion A to B wherein it<\/p>\n
is mentioned that accused Lalchand is living by<\/p>\n
erecting Dhani. The witness deposed to have not given<\/p>\n
out this portion. Then he has maintained that<\/p>\n
immediately after alighting from the jeep, the accused<\/p>\n
persons fired indiscriminately, and killed Balwant by<\/p>\n
indiscriminately showering firearm injuries. It may be<\/p>\n
noticed here, that there is only one firearm injury on<\/p>\n
the body of the deceased. Then, he has stated that the
\n                                                       8<\/span><\/p>\n
I.O. came at the place of incident at about 10 A.M.,<\/p>\n
and he also went in the jeep of S.H.O. though for<\/p>\n
going to police station he claims to have gone by bus,<\/p>\n
and was carrying ticket when he reached the police<\/p>\n
station, but then took a U turn, and stated that the<\/p>\n
conductor had taken away the ticket and torn it in the<\/p>\n
way. He has also stated that there was no blood<\/p>\n
available at the place where Balwant was killed. He<\/p>\n
had gone to fetch photographer but the photos of the<\/p>\n
place of incident could not be taken because<\/p>\n
Additional S.P. had refused. Then, he has admitted<\/p>\n
that in the Dhani mentioned above now the accused<\/p>\n
Lalchand lives forcibly, though he had not initiated<\/p>\n
any legal action for dispossessing Lalchand. He has<\/p>\n
deposed that the victim was carried by them to a<\/p>\n
distance of 6-7 Bighas but then both the brothers who<\/p>\n
carried him did not get any blood stains, nor any<\/p>\n
blood fell on the route. Then, he has also stated that<\/p>\n
the place where Balwant was killed, Gwar was sown by<\/p>\n
them. However, subsequently the accused persons took<\/p>\n
possession of that land, for which also no legal<\/p>\n
action was initiated. He has maintained that he did<\/p>\n
not narrate the incident to the Panch or Sarpanch of<\/p>\n
the village which is at a distance of 4 \u00bd Murabba, nor<\/p>\n
did he take anybody with him, though he narrated the<\/p>\n
incident to his Uncle. Then, he was cross examined to<\/p>\n
test his reliability about the place where the victim<\/p>\n
was lying, by asking about the crops standing in the<\/p>\n
neighbouring fields, to which he deposed ignorance. He<\/p>\n
has also gone to the extent of stating that he does<\/p>\n
not recollect as to whether there was any blood or not<\/p>\n
when they removed the victim from the place where he
\n                                                       9<\/span><\/p>\n
was lying. Then, he has stated that the jeep stopped<\/p>\n
at a distance of \u00be Kilo (probably Bigha), and<\/p>\n
immediately after alighting therefrom they opened<\/p>\n
fire. The way was Kacha, and the witness was on foot.<\/p>\n
They put the dead body in the field of Jotram, the<\/p>\n
distance from the place where the dead body was kept<\/p>\n
and they heard the cry was 6 to 7 kilas. Then, he has<\/p>\n
stated that he did not show the place where the jeep<\/p>\n
was standing, nor the marks of tyre of the jeep to the<\/p>\n
I.O., but he has denied the suggestion about there<\/p>\n
being no tyre marks of the jeep at that place, or the<\/p>\n
story of accused persons coming in a jeep being a<\/p>\n
concoction. He has then stated that his signatures<\/p>\n
were not obtained by the police on any paper. He has<\/p>\n
denied the suggestion about his having told to Jot Ram<\/p>\n
s\/o Ram Pratap about their having gone on the land of<\/p>\n
Lalchand to forcibly take the possession, and in that<\/p>\n
process the fire shot by their own person hit the<\/p>\n
victim. The witness has deposed that he did not meet<\/p>\n
Jot Ram. He has deposed ignorance about Jot Ram having<\/p>\n
been examined from prosecution, and to have been<\/p>\n
listed as a witness. Similar suggestion was made about<\/p>\n
the witness to have narrated to Bharmal, which too has<\/p>\n
been denied by stating that he did not meet Bharmal,<\/p>\n
and has also deposed ignorance about Bharmal being<\/p>\n
kept as a witness of prosecution. Similar is the<\/p>\n
situation about his having told to Hajari s\/o Dana Ram<\/p>\n
Jat. He has denied the suggestion about one jeep full<\/p>\n
of persons having come to take possession of the land<\/p>\n
of the accused Lalchand on 19.9.1982, or those persons<\/p>\n
have shot air fire to create an atmosphere of fear. He<\/p>\n
has denied the suggestion about Balwant being armed
\n                                                       10<\/span><\/p>\n
with 18 MM gun. He has also denied the suggestion<\/p>\n
about his having told Khajan s\/o Janduram about their<\/p>\n
having gone to take possession of the land of accused<\/p>\n
Lalchand, and in that process Balwant had died by<\/p>\n
their own fire. He has also denied the suggestion<\/p>\n
about having given out at 9 P.M. on 19.9.1982 in<\/p>\n
presence of Balwant Singh and Raji Ram that they have<\/p>\n
to take possession of the land of the accused Lalchand<\/p>\n
even at the cost of committing murder. He has also<\/p>\n
denied suggestion about his having told Bhagiram to<\/p>\n
have gone to take possession of the land of accused<\/p>\n
Lalchand, in which process Balwant having died by<\/p>\n
their own fire. Then, he has stated that his father<\/p>\n
has a licensed gun which gun is lying in the Police<\/p>\n
Station, Hanumangarh Junction, which was deposited<\/p>\n
there by the accused Lalchand by snatching it. He has<\/p>\n
admitted that there is litigation going on with the<\/p>\n
accused Lalchand, whose father was Bhaniram, whose<\/p>\n
father was Hariram, who had come from Pakistan, and in<\/p>\n
whose favour 15 bighas of land was allotted as non-<\/p>\n
claimant. He has deposed ignorance about Santo having<\/p>\n
initiated any litigation against his brother Lalchand<\/p>\n
with respect to land in question. He has also deposed<\/p>\n
ignorance about their being any stay orders from<\/p>\n
Rehabilitation and A.D.M. Ganganagar prohibiting Santo<\/p>\n
from selling the land. Santo is alleged to have died.<\/p>\n
He has admitted that the accused Lalchand had<\/p>\n
initiated litigation against this witness, and his<\/p>\n
brothers Lalchand and Brijendra and father Ramkaran<\/p>\n
for getting forged sale deed registered. He has stated<\/p>\n
that a murder case was got registered by Utma Ram<\/p>\n
against the witness, his brother, and father after
\n                                                       11<\/span><\/p>\n
eight days of the registration of the sale deed. Then,<\/p>\n
he has admitted that they did not go to any Dhani to<\/p>\n
see buffalo, Chanan did not inflict any injury to<\/p>\n
Balwant, and the other three accused persons who were<\/p>\n
empty handed also did not cause any injury, nor did<\/p>\n
they hold Balwant. However, he has maintained that<\/p>\n
firing at Balwant continued for 5 to 6 minutes. He has<\/p>\n
maintained that there was no blood at the place where<\/p>\n
from the deceased was lifted, or where he was put. He<\/p>\n
has admitted that there was no exit wound of the fire<\/p>\n
injury. He has deposed ignorance about any bullet or<\/p>\n
pallets having been found on the spot. Then, he has<\/p>\n
deposed that no prosecution is pending against the<\/p>\n
witness, and his father for firing at Balwant. He did<\/p>\n
not see 8 MM cartridge in the pocket of the victim.<\/p>\n
Then, he has denied the suggestion about the incident<\/p>\n
having occurred at 3 A.M. in the night, and in order<\/p>\n
to save himself from the prosecution, and to grab the<\/p>\n
land, this false case has been cooked up. This is the<\/p>\n
entire evidence of Jagdish, P.W.3.\n<\/p>\n<\/p>\n
         Coming to the evidence of P.W.4 Lalchand. He<\/p>\n
has also deposed the happening of the incident as<\/p>\n
deposed by Jagdish, and has proved site plan Ex.P-6,<\/p>\n
the site inspection note Ex.P-6A, and other memos<\/p>\n
including seizure memo of Gandasi and shoe recovered<\/p>\n
from near the dead body being Ex. P-11. He has also<\/p>\n
proved the memo of recovery of empties from the spot,<\/p>\n
being Ex.P-12 and P-13. In cross examination he has<\/p>\n
deposed that five persons were armed with gun and<\/p>\n
pistol, and all the five fired for 10 to 15 minutes,<\/p>\n
and had showered firearm injuries at Balwant,
\n                                                       12<\/span><\/p>\n
therefore, Balwant died. According to him one Kila<\/p>\n
measures 30 paces. He has maintained that immediately<\/p>\n
on alighting the accused persons opened indiscriminate<\/p>\n
firing, he had shown the site to the I.O., and had<\/p>\n
shown the place where they heard the cries of the<\/p>\n
victim, and they returned. However, there were no foot<\/p>\n
marks, the I.O. had enquired from the Patwari about<\/p>\n
the land, and Patwari gave out the land to be in the<\/p>\n
name of Santo, there was no blood at any other place<\/p>\n
except the place where the dead body was put, no marks<\/p>\n
were found of pallets or of bullets where Balwant fell<\/p>\n
down. They did not see Balwant receiving firearm<\/p>\n
injury. He has maintained that at Dhani children of<\/p>\n
Lalchand or his family members were not there, nor any<\/p>\n
residential articles were lying there. He did not see<\/p>\n
any cattle tethered either. However, he has maintained<\/p>\n
that Dhani was erected about two months before the<\/p>\n
incident. He had admitted that nobody of their side<\/p>\n
lives in Dhani. He claims to have been paying<\/p>\n
irrigation charges but he did not give the receipts to<\/p>\n
the Investigating Officer, he did not see 8 MM empty<\/p>\n
in the pocket of the victim, he has then stated that<\/p>\n
he does not know as to any memo was prepared about<\/p>\n
seizure of that empty. However, he appended his<\/p>\n
signatures at whatever place the I.O. desired. Gandasi<\/p>\n
seized was of victim. He had maintained that the<\/p>\n
accused armed with Gandasi, so also the accused<\/p>\n
persons who were empty handed, did not cause any<\/p>\n
injury to Balwant, he has deposed ignorance as to<\/p>\n
after how many days registration of sale deed Santo<\/p>\n
died. He has also deposed ignorance about the<\/p>\n
appellant Utma Ram having lodged any prosecution
\n                                                       13<\/span><\/p>\n
against the witness, and his brother Brijendra and<\/p>\n
father Ramkaran for killing Santo. Then, he has denied<\/p>\n
the suggestion about the prosecution persons having<\/p>\n
gone to village Subhanwala at 9 P.M. on 19.9.1982 and<\/p>\n
to have shot two fires there to create terror in<\/p>\n
presence of Sadula Ram and Ramlal. He has denied the<\/p>\n
suggestion about having collected many persons in the<\/p>\n
village, and to have given out that they would be<\/p>\n
taking back possession of the land from the accused<\/p>\n
Lalchand, or to have told to Bharmal s\/o Dhana Ram<\/p>\n
that at 3 A.M. in the night Balwant died by their own<\/p>\n
shot. Similar is the version about Jot Ram s\/o<\/p>\n
Rampratap, Ghagiram, Daluram etc. He has also<\/p>\n
maintained that he and his brother did not receive any<\/p>\n
blood stains in the process of carrying the victim. He<\/p>\n
has denied the suggestion about the land being<\/p>\n
allotted to accused Lalchand in Government record, he<\/p>\n
was confronted with his police statement Ex.D-5 about<\/p>\n
omission to depose Devilal having challenged. This is<\/p>\n
the evidence of Lalchand.\n<\/p>\n<\/p>\n
          Then, in order to appreciate the site plan<\/p>\n
and site inspection note we may recapitulate briefly<\/p>\n
the evidence of I.O. He has stated that site plan Ex.<\/p>\n
P-6 and site inspection note Ex. 6A were prepared, one<\/p>\n
shoe and Barchhi were taken from the spot vide Ex. P-<\/p>\n
11, and pieces of Dats of cartridge were recovered<\/p>\n
from the spot, and were sealed vide Ex.P-12, clothes<\/p>\n
of victim, another shoe and one empty cartridge<\/p>\n
recovered from the pocket of the victim were taken<\/p>\n
into possession vide Ex. P-13, and were seized. In<\/p>\n
cross examination he has stated, that the eye
\n                                                       14<\/span><\/p>\n
witnesses had shown him to be standing at the place<\/p>\n
marked ‘E’ in Ex.P-6, and the place mark ‘A’ where the<\/p>\n
dead body was found wherefrom blood stained earth was<\/p>\n
taken, distance between the place marked ‘A’ to ‘E’ is<\/p>\n
11 Kilas, and there was no trail of blood, there was<\/p>\n
one Kotha in the field, where the ladies of the family<\/p>\n
of the accused Lalchand were there, he has deposed<\/p>\n
that the portion C to D in Ex. 6A has been mentioned<\/p>\n
on the basis of his observation. Then, he has also<\/p>\n
stated that 8 MM empty, recovered from the pocket of<\/p>\n
the victim, was of 8 MM rifle, Gandasi recovered was<\/p>\n
reported to be belonging to the deceased. Then, some<\/p>\n
questions answer form statement was recorded, wherein<\/p>\n
he has deposed that the witness Ramlal, Sadularam, and<\/p>\n
Balwant Singh had given out that the prosecution party<\/p>\n
collected the people in the night for taking<\/p>\n
possession of the land of the accused Lalchand, and<\/p>\n
for that purpose firing was done in village<\/p>\n
Subhanwala, and fear psychosis was created. He has<\/p>\n
also stated that Jot Ram had disclosed that the<\/p>\n
prosecution party had gone to take possession of the<\/p>\n
field of Lalchand, in which process their own person<\/p>\n
received gun shot injury. This was disclosed to this<\/p>\n
witness by Jagdish. Similar narrations were reported<\/p>\n
to have been done by various other witnesses. He has<\/p>\n
admitted to have put a note in the police diary about<\/p>\n
the incident being relating to 3 A.M. in the night.<\/p>\n
Then, he has also admitted that he submitted a challan<\/p>\n
in the Court against Jagdish, Lalchand the complainant<\/p>\n
and Ramkaran for having fired on the field of accused<\/p>\n
Lalchand. This challan is regarding the incident<\/p>\n
taking place in the night intervening 19th and 20th
\n                                                       15<\/span><\/p>\n
September, 1982 at 3 A.M.\n<\/p>\n<\/p>\n
         In this background a look at Ex.P-3 shows<\/p>\n
that the land of Kila no. 2, 3, 8, 9, 12, 13, 18, 19,<\/p>\n
22, and 23 of Stone No. 35\/220 so also land of Kila<\/p>\n
No. 21 to 25 of Stone No. 35\/219 is in the name and<\/p>\n
possession of Santo, Lalchand (accused). Then, a look<\/p>\n
at Ex.P-6 and 6A shows that these lands are situated<\/p>\n
north to south, and in further south there is a way<\/p>\n
east to west. Point A is towards the far east, while<\/p>\n
point C, D, E, F etc. are towards west. Then, point F<\/p>\n
is marked at innumerable places in Kilas No. 16, 17,<\/p>\n
18, 19, 22, 23, 24 and 25 as the places wherefrom<\/p>\n
empties were recovered. Point D is in the southern<\/p>\n
side of Kila No. 22, while point C is in the north<\/p>\n
western side of Kila no. 24. Dhani is shown in Kila<\/p>\n
no. 13 which is in the north side. With this, as<\/p>\n
appears from Ex. P-6A that, according to prosecution,<\/p>\n
the informant and two others were travelling from east<\/p>\n
to west, and at point B they are said to have been<\/p>\n
overtaken while at point A dead body of the deceased<\/p>\n
is said to be lying. Then, C is the place where the<\/p>\n
jeep is said to have stopped. Obviously C is in the<\/p>\n
north west of Kila no. 24, and Kila no. 24 is a Kacha<\/p>\n
field. Admittedly no firearm, or any other symptoms of<\/p>\n
any jeep having come there have been found.<\/p>\n
         Then, D is the place where the victim is said<\/p>\n
to have been shot, say to have received injuries. As<\/p>\n
noticed above this D is in the south portion of Kila<\/p>\n
no. 22. Obviously, in between point C to D there is a<\/p>\n
full Kila no. 23, and some portion of Kila no. 22 and
\n                                                       16<\/span><\/p>\n
24 also. This Kila no. 22 and 23 are shown to be in<\/p>\n
possession of accused Lalchand. It is admitted by P.W.<\/p>\n
4 that the way shown in the map A to B is not a<\/p>\n
through and through way rather stops ahead.<\/p>\n
         In the background of the above situation, the<\/p>\n
things are required to be comprehended, as to whether<\/p>\n
the incident did at all occur in the manner in which<\/p>\n
the Court is asked by P.W. 3 and 4 to believe. The<\/p>\n
first thing that occurs is, that there was no occasion<\/p>\n
for the three persons of the prosecution side to go<\/p>\n
from east to west, and more particularly at point D.<\/p>\n
Then, in absence of anything on record, it is too much<\/p>\n
to believe, or assume, that the accused persons did<\/p>\n
have the information about P.W. 3, P.W. 4, and the<\/p>\n
victim being going on this way, so as to come armed<\/p>\n
with firearms in a jeep, and to waylay them say<\/p>\n
overtake them, and cause the incident. Admittedly<\/p>\n
there is a dispute between the parties about the land.<\/p>\n
According to Ex. P-3 the land is recorded in the name<\/p>\n
of Lalchand’s grand mother Santo. According to the<\/p>\n
prosecution party, they purchased the land from Santo<\/p>\n
by registered sale deed, and as appears from<\/p>\n
collective reading of the statements of P.W. 3 and<\/p>\n
P.W. 4, that after about 8 days of the registration of<\/p>\n
the sale deed Santo came to be murdered, and the<\/p>\n
appellant being Utma Ram had lodged prosecution<\/p>\n
against P.W. 4, his another brother and father for<\/p>\n
murder of Santo, apart from the fact that other<\/p>\n
prosecutions were also launched about registry being<\/p>\n
forged one. Of course, the date of the sale deed has<\/p>\n
not come on record, but then this sequence of things
\n                                                       17<\/span><\/p>\n
does show, that the land was in possession of Lalchand<\/p>\n
at the time of incident. In this background a look at<\/p>\n
Ex. P-6 and Ex. P-12 together again show, that empty<\/p>\n
cartridges have been recovered from the Kilas no. 16,<\/p>\n
17, 18, 19, 22, 23, 24, and 25. If the accused were<\/p>\n
nine in number, and on the victim side there were only<\/p>\n
three persons, the accused had already alighted from<\/p>\n
the jeep, and had opened fire seeing which P.W. 3 and<\/p>\n
4 had run away, only deceased Balwant Singh was there,<\/p>\n
there could not be any occasion for the firing being<\/p>\n
done from so many places, so as to scatter the empties<\/p>\n
in as many as 8 kilas. Moreso when the deceased is<\/p>\n
said to have received injury in Kila no. 22 at point<\/p>\n
D, which is south west extreme corner of all the 8<\/p>\n
Kilas.\n<\/p>\n<\/p>\n
         This coupled with the fact that whether place<\/p>\n
B or at any other place in Kilas no. 16, 17, 18, 19,<\/p>\n
or 22, 23, 24, and 25 no marks, whether of blood, or<\/p>\n
of human feet or of firing have been found except<\/p>\n
recovery of empties. The blood stained earth is also<\/p>\n
said to have been collected only from point A where<\/p>\n
the dead body was put. Then, it is also required to be<\/p>\n
considered, that according to Ex.-1 the deceased had<\/p>\n
received bleeding injury, gun shot wound of entry in<\/p>\n
the epigastrium mid line upper part slightly right<\/p>\n
side, and he died due to severe haemorrhage resulting<\/p>\n
into death, but then according to P.W. 3 and P.W. 4<\/p>\n
despite their carrying the victim they did not receive<\/p>\n
any blood stains on their clothes, nor any blood fell<\/p>\n
from the place D to A.\n<\/p>\n
                                                         18<\/span><\/p>\n
            In this background it does cast a serious<\/p>\n
doubt on the reliability of the version of P.W. 3 and<\/p>\n
P.W.4 about the manner of happening of the incident.<\/p>\n
            In our view, the story projected during cross<\/p>\n
examination, and deposed by I.O. P.W. 5 in the cross<\/p>\n
examination, does appear to be more probable, as<\/p>\n
regarding the incident of the night even challan had<\/p>\n
been filed. It is very well probable that since land<\/p>\n
was recorded in the name of the accused Lalchand, who<\/p>\n
was not prepared to give up the land, his grand mother<\/p>\n
Santo had already been murdered, there was serious<\/p>\n
controversy about the genuineness of the sale deed,<\/p>\n
the prosecution persons must be feeling strong enough<\/p>\n
to capture possession from the accused Lalchand by<\/p>\n
force, including using of firearm, it is also well<\/p>\n
nigh possible, that in this process they my have come<\/p>\n
at the dead of the night i.e. 3 A.M., and opened<\/p>\n
indiscriminate fire, resulting into scattering of<\/p>\n
empties in as many as 8 Kilas upto Dhani situated in<\/p>\n
Kila No. 13, and in that process of indiscriminate<\/p>\n
firing, some shot might have unfortunately hit<\/p>\n
Balwant, and then prosecution might have thought it a<\/p>\n
good opportunity to avail, to achieve their intentions<\/p>\n
of taking over possession of land from the accused<\/p>\n
Lalchand.\n<\/p>\n<\/p>\n
            It is significant to note, that despite the<\/p>\n
weapons being recovered from the accused persons,<\/p>\n
purportedly on the information, and at the instance of<\/p>\n
the accused under Section 27 of the Evidence Act, and<\/p>\n
despite good number of empties, say about a dozen,
\n                                                       19<\/span><\/p>\n
having been recovered from the spot, none of them i.e.<\/p>\n
whether weapon or empties were sent for ballistic<\/p>\n
examination, even to lend the assurance about the<\/p>\n
empties being fired by the weapons recovered from the<\/p>\n
accused persons, much less about serviceability of the<\/p>\n
weapons recovered from the accused persons.<\/p>\n
Significantly further neither the weapons nor the<\/p>\n
empties have even been produced in the court, much<\/p>\n
less identified. We are constrained to repeat, that if<\/p>\n
the incident were to take place in the manner alleged<\/p>\n
by the prosecution, there was no occasion for the<\/p>\n
accused persons to so fire, as to scatter the empties<\/p>\n
in as many as 8 Kilas. Then, according to P.W. 3 and<\/p>\n
P.W. 4 the firing continued for 5 to 6 minutes or 10<\/p>\n
to 15 minutes continuously, and indiscriminately, on<\/p>\n
the victim, while as appears from Ex. P-1, that the<\/p>\n
victim had received only one entry wound, that too<\/p>\n
with no blackening, which obviously shows that it was<\/p>\n
not a close ranged fire, but the shot appears to have<\/p>\n
been fired from good distance.\n<\/p>\n<\/p>\n
         Since the learned trial court has taken the<\/p>\n
matter in a lopsided manner, rather as if it was a<\/p>\n
civil case, and the learned Judge was judging as to<\/p>\n
whether the defence has been able to prove its story,<\/p>\n
or the prosecution has proved it, and then has<\/p>\n
proceeded with conjectures in favour of the<\/p>\n
prosecution, to seek assurance to reliability of the<\/p>\n
statements of P.W. 3 and P.W. 4, which in our view is<\/p>\n
not a correct approach. This is for the prosecution to<\/p>\n
prove its case beyond any reasonable manner of doubt,<\/p>\n
and the accused, at best, is only required to
\n                                                       20<\/span><\/p>\n
reasonably probablise the theory propounded by him,<\/p>\n
and is not required to prove it.\n<\/p>\n<\/p>\n
           All said and done, in any case, from the<\/p>\n
entire scanning of the record, we do not find<\/p>\n
ourselves to be safe, in believing the two witnesses<\/p>\n
P.W. 3 and 4, to find the accused persons guilty for<\/p>\n
the capital offence.\n<\/p>\n<\/p>\n
           Resultantly the appeal is allowed. The<\/p>\n
impugned judgment is set aside, and all the accused<\/p>\n
persons are acquitted of all the charges. They are on<\/p>\n
bail, they need not surrender, their bail bonds stand<\/p>\n
cancelled.\n<\/p>\n<\/p>\n
( C M TOTLA ),J.                      ( N P GUPTA ),J.\n\n\n\/Sushil\/\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Devi Lal & Ors vs State on 5 January, 2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T DEVI LAL & Ors. V\/S The State of Rajasthan D.B. CRIMINAL APPEAL No. 43 of 1987 Date of Judgment : 5thJanuary, 2010 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-166904","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nDevi Lal & Ors vs State on 5 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/devi-lal-ors-vs-state-on-5-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Devi Lal & Ors vs State on 5 January, 2010 - 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