{"id":217816,"date":"2009-02-12T00:00:00","date_gmt":"2009-02-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhoop-singh-vs-state-on-12-february-2009"},"modified":"2018-06-28T21:20:53","modified_gmt":"2018-06-28T15:50:53","slug":"bhoop-singh-vs-state-on-12-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhoop-singh-vs-state-on-12-february-2009","title":{"rendered":"Bhoop Singh vs State on 12 February, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Bhoop Singh vs State on 12 February, 2009<\/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\nBHOOP SINGH & ORS.       V\/S   The State of Rajasthan\n\n\n              CRIMINAL APPEAL No. 363 of 1983\n\n\nDate of Judgment               :       12th Feb. 2009\n\n                        PRESENT\n               HON'BLE SHRI N.P.GUPTA,J.\n       HON'BLE SHRI KISHAN SWAROOP CHAUDHARY,J.\n\n\nMr. NIRANJAN GAUR, for the appellant.\nMr. JPS CHOUDHARY, P.P.\n\nBY THE COURT:(PER HON'BLE GUPTA, J.<\/pre>\n
         This appeal was filed by five accused persons<\/p>\n
Bhoop Singh, Mahendra, Kashi Ram, Hari Singh and<\/p>\n
Chhotu, against the judgment of learned Addl. Sessions<\/p>\n
Judge, Nohar dt. 30.9.1983, convicting all the five<\/p>\n
accused persons for the offence under Section 148 and<\/p>\n
302 read with Section 149 IPC, and sentencing each of<\/p>\n
them to one year’s rigorous imprisonment with a fine<\/p>\n
of Rs. 200\/- for offence under Section 148, and with<\/p>\n
imprisonment for life and a fine of Rs. 500\/- for<\/p>\n
offence under Section 302 read with Section 149, and<\/p>\n
further directing that in default of payment of fine<\/p>\n
each accused shall undergo five months’ further<\/p>\n
rigorous imprisonment.\n<\/p>\n
                                                          2<\/span><\/p>\n
         The appeal was filed on 11.10.1983, and was<\/p>\n
admitted on 13.10.1983. Then, on 11.11.1983 the<\/p>\n
application for suspension of sentence of the accused<\/p>\n
Mahendra, Kashi Ram, Hari Singh and Chhotu was<\/p>\n
allowed, and they were released on bail. Then, on<\/p>\n
16.2.1984 sentence awarded to fifth accused Bhoop<\/p>\n
Singh was also suspended, and he was released on bail.<\/p>\n
Thus, all the five accused are on bail. During trial<\/p>\n
it was reported on 10.9.1999, that the accused<\/p>\n
Mahendra has expired, and a death certificate was also<\/p>\n
obtained, and enclosed. Thus, out of the five<\/p>\n
appellants the appeal of Mahendra abates.<\/p>\n
Consequently, the present appeal is required to be<\/p>\n
considered to be an appeal on behalf of remaining four<\/p>\n
accused only.\n<\/p>\n<\/p>\n
         Facts of the case are, that one Fularam Jat<\/p>\n
s\/o Chiriya Gandhi lodged a report at P.S. Bherani at<\/p>\n
7.45 P.M. (date we are not mentioning as that is one<\/p>\n
of disputed points) to the effect, that his brother<\/p>\n
Kalu Ram bears enmity with Hari Singh, Kashi Ram r\/o<\/p>\n
Chiriya Gandhi. There is litigation between the<\/p>\n
relationship (\u0906\u092a\u0938 \u0930 \u0936 \u0926   \u092e \u092e\u0915\u0926\u092e\u092c \u091c \u091a\u0932      \u0939), and on<\/p>\n
that count yesterday at 2 P.M. on the Bus Stand Gandhi<\/p>\n
Bari on the shop of Jagan, Kalu Ram was sitting, at<\/p>\n
that time Chhotu intimated, thereupon Hari Singh,
\n                                                       3<\/span><\/p>\n
Kashi Ram, Mahendra, Chhotu, Bhoop Singh sons of Moman<\/p>\n
Ram r\/o Chiriya Gandhi came duly armed with axe, and<\/p>\n
lathi, and in front of shop of Jagan they started<\/p>\n
beating Kalu, but Kalu took shelter in the shop by<\/p>\n
rushing into it, but all these persons had broken his<\/p>\n
head with lathis and axe, and have killed him. At that<\/p>\n
time his elder son Dilip and his nephew Kashi Ram were<\/p>\n
there at the bus stand, who had seen the incident.<\/p>\n
There were many other persons seeing the incident. On<\/p>\n
receiving this information he went to the shop of<\/p>\n
Jagan, and saw that Kalu Ram was having injuries on<\/p>\n
his head, and face, and was lying dead in the shop of<\/p>\n
Jagan. On this information a case under Section 302,<\/p>\n
147, 148 and 149 IPC was registered, and investigation<\/p>\n
commenced. At this place we may observe, that in Ex.P-<\/p>\n
1 date of incident is said to be 14.6.1982 at 2 P.M.<\/p>\n
The F.I.R. in the prescribed column shows to have been<\/p>\n
lodged on 14.6.82 at 7.45 P.M., but even according to<\/p>\n
the contents of this report, as noticed above, the<\/p>\n
incident took place on the earlier day. Obviously it<\/p>\n
should be 13, while it is contended before us, that<\/p>\n
the F.I.R. was, as a matter of fact, lodged on 15th, it<\/p>\n
reached the Magistrate at 8.30 P.M. on 15th, and even<\/p>\n
other circumstances were pointed out, which we will<\/p>\n
discuss later. On this information, after registering<\/p>\n
the case necessary investigation were undertaken, post<\/p>\n
mortem was got conducted on 15th, report whereof is
\n                                                       4<\/span><\/p>\n
Ex.P-9, and after completing investigation, challan<\/p>\n
was filed against all the five accused persons, where-<\/p>\n
from the case was committed.\n<\/p>\n<\/p>\n
         The learned trial court framed the charges<\/p>\n
for the aforesaid offences. During trial some 12<\/p>\n
witnesses were examined by the prosecution, which<\/p>\n
include the star witnesses being P.W.1 Fula Ram, P.W.2<\/p>\n
Jagan, P.W.3 Kashi Ram and P.W. 4 Dilip. P.W.1 being<\/p>\n
the informant, P.W.2 being the shop keeper Jagan,<\/p>\n
P.W.3 Kashi Ram is the nephew of the deceased (being<\/p>\n
the son of Ranjeet, the other brother of the deceased)<\/p>\n
and P.W.4 Dilip is the sons of the informant.<\/p>\n
Obviously they have been produced as eye-witnesses, or<\/p>\n
material witness to unfold the prosecution case.<\/p>\n
Likewise, the prosecution tendered in evidence some 36<\/p>\n
documents. The accused persons took the stand of<\/p>\n
denial. They also denied to have got made various<\/p>\n
recoveries. The learned trial court after so<\/p>\n
completing the trial convicted and sentenced the five<\/p>\n
accused persons as above.\n<\/p>\n<\/p>\n
          The learned trial court first of all<\/p>\n
discussed the aspect of formation of unlawful<\/p>\n
assembly, with common intention to cause death, and<\/p>\n
referred to Ex.P-36, an F.I.R. lodged by the accused<\/p>\n
Hari Singh, on that very day, 14.6.1982 at 7.30 P.M.,
\n                                                       5<\/span><\/p>\n
to the effect, that Om Prakash, Sant Lal, Mange Ram<\/p>\n
sons of Harpat are their relations, and there is<\/p>\n
enmity between Kalu Ram on the one hand, Om Prakash,<\/p>\n
Mange Ram, and Jai Singh on the other hand. They are<\/p>\n
on litigating terms. With this, it was alleged, that<\/p>\n
last evening Kalu and Jai Singh came in the Chowk of<\/p>\n
their village and threatened him. Then, on the date of<\/p>\n
report being 14.6.1982 at 2 in the noon, their brother<\/p>\n
Chhotu came from his in-laws house, and alighted at<\/p>\n
the bus stand Gandhi Bari, at that time Kalu and his<\/p>\n
nephews Dilip and Kashi Ram stopped Chhotu Ram, and<\/p>\n
intimation was sent at his house. Thereupon his<\/p>\n
brothers Kashi Ram, and Bhoop Singh, and the father<\/p>\n
Moman Ram came there armed with lathis, and when they<\/p>\n
reached near the Kund, situated near the house of Hans<\/p>\n
Ram Chamar, Kalu Ram came armed with single barrel 12<\/p>\n
bore gun, and started firing at him, but his father<\/p>\n
did not get separated, and Kalu fired from that 12<\/p>\n
bore gun on his father, with the result, that his<\/p>\n
father died on the spot. Kalu Ram started reloading<\/p>\n
the gun, but since empty cartridge did not come out,<\/p>\n
he along with Kashi Ram and Bhoop Singh challenged<\/p>\n
Kalu Ram, who ran towards bus stand, thereupon they<\/p>\n
chased him, and near the shop of Jagan, injuries were<\/p>\n
inflicted on the head and face of Kalu Ram, who<\/p>\n
concealed himself in the shop of Jagan. The informant<\/p>\n
and Bhoop Singh entered in the shop, while Kashi Ram
\n                                                       6<\/span><\/p>\n
remained out side. Kalu Ram was made to fall in the<\/p>\n
shop, and injuries were inflicted to Kalu Ram with<\/p>\n
lathis, they took the 12 bore gun with empty<\/p>\n
cartridges, and came to their father who was bleeding.<\/p>\n
After one hour the victim died of firearm pallets, and<\/p>\n
he has come along with Kashi Ram to lodge the report.<\/p>\n
On this report F.I.R. No. 40 was registered, for the<\/p>\n
offence under Section 302 I.P.C. It was noticed, that<\/p>\n
in this report itself, the informant Hari Singh<\/p>\n
himself has disclosed about himself causing injuries<\/p>\n
on the face and head of Kalu Ram in the shop of Jagan,<\/p>\n
by entering the shop along with Bhoop Singh. Then it<\/p>\n
was noticed, that the F.I.R. Ex.P-1 has been lodged at<\/p>\n
7.45 P.M. wherein also the incident is said to have<\/p>\n
taken place at 2 P.M., and there is interpolation in<\/p>\n
the figure 1 and 0 in the F.I.R. Number, and it is<\/p>\n
alleged in this Ex.P-1, that at about 2 in the noon<\/p>\n
when the brother of the deceased was sitting on the<\/p>\n
shop of Jagan, accused started beating the deceased<\/p>\n
outside the shop, and inflicted fatal injuries, and<\/p>\n
when his brother entered the shop, there also he was<\/p>\n
beaten. Thus it was found, that presence of Dalip and<\/p>\n
Kashi Ram has been admitted by the accused themselves,<\/p>\n
from the averments contained in Ex.P-36. Thus, the<\/p>\n
learned trial court proceeded with accepting presence<\/p>\n
of P.W.3 and P.W.4 at the place of incident, and their<\/p>\n
being eye witnesses.\n<\/p>\n
                                                       7<\/span><\/p>\n
          Then, the evidence of P.W.2 has been<\/p>\n
discussed, and it was found, that this witness Jagan<\/p>\n
Nath had turned hostile, but he was treated to be eye<\/p>\n
witness. Then the evidence of informant P.W.1 was<\/p>\n
discussed, who also proved the site plan Ex.P-2,<\/p>\n
Panchayatnama Ex.P-3, and the recovery memo of blood<\/p>\n
stained clothes of the deceased. It was noticed, that<\/p>\n
this witness is wavering on the aspect of F.I.R. being<\/p>\n
lodged on 14th or 15th, but then it was found that his<\/p>\n
evidence cannot be discarded altogether, F.I.R. not<\/p>\n
being a substantive piece of evidence, nor is the last<\/p>\n
word of prosecution. Thus, implicit reliance was<\/p>\n
placed on the aforesaid eye witnesses.\n<\/p>\n<\/p>\n
          Then, certain circumstances were also<\/p>\n
considered, viz. the recovery of lathi from Hari<\/p>\n
Singh, recovery of lathi from Kashi Ram, recovery of<\/p>\n
Kulhari from Bhoop Singh, and recovery of other<\/p>\n
lathies, from Mahendra and Chhotu each. Then, the<\/p>\n
argument of incident being out come of sudden and<\/p>\n
grave provocation was negatived, and was held to be an<\/p>\n
act of retaliation. With these findings the accused<\/p>\n
persons have been convicted as above.\n<\/p>\n<\/p>\n
          We have heard the learned counsel for the<\/p>\n
appellants, and the learned public prosecutor.
\n                                                       8<\/span><\/p>\n
          Before discussing the prosecution evidence,<\/p>\n
we would like to refer to Ex.P-36, as this has been<\/p>\n
considered to be of foundational importance, and the<\/p>\n
evidence of P.W.3 and 4 has been substantially<\/p>\n
believed on its basis. This document is available on<\/p>\n
the record at page A-56\/2, and a look at it shows,<\/p>\n
that it has been filed vide application dt. 25.5.1983,<\/p>\n
available in record at page A 56\/1. Then this original<\/p>\n
Ex.P-36 is nothing but a type copy of some paper,<\/p>\n
purporting to be F.I.R., which is neither photostat<\/p>\n
copy, nor any certified copy, nor compared by anybody<\/p>\n
in authority. It does not bear any mark, to attach any<\/p>\n
sanctity about its reliability or make it admissible.<\/p>\n
The matter does not end here. P.W. 11 Dungarmal,<\/p>\n
S.H.O. the investigating Officer has proved this<\/p>\n
document also, by deposing that on 15.6.1982 accused<\/p>\n
Hari Singh s\/o Moman Ram Jat appeared, and lodged an<\/p>\n
oral report, that Kalu Ram has killed his father Moman<\/p>\n
Ram, by a gun fire. This report is Ex.P-36, and bears<\/p>\n
his signature ‘A to B’, while thumb mark of Hari Singh<\/p>\n
is at point ‘X to Y’. This report was read over to<\/p>\n
Hari Singh who understood it and found it to be<\/p>\n
correct, and put his thumb mark, and after<\/p>\n
investigation challan was filed. Likewise, he has<\/p>\n
further deposed in cross-examination, that after<\/p>\n
receiving the report Ex.P-36 he did not relieve Hari
\n                                                       9<\/span><\/p>\n
Singh, and had carried him with him to Gandhi Bari,<\/p>\n
and since then Hari Singh is continued to be with him.<\/p>\n
He took Kashi Ram also with him from Police Station<\/p>\n
Bherani, and he also continued to be with him. Even at<\/p>\n
the cost of repetition it may be observed, that Ex.P-<\/p>\n
36 does not bear any marks like ‘A to B’, much less<\/p>\n
thumb mark or the mark ‘X to Y’. Then,   in cross<\/p>\n
examination, he has further deposed that in the said<\/p>\n
F.I.R. he prepared Panchnama Lash Ex.D-8, Fard Surat<\/p>\n
Haal Lash Ex.D-9, Ex.D-6 and D-7 are the site plan and<\/p>\n
site inspection note, which depict the correct<\/p>\n
situation as was found. Then, he has admitted that in<\/p>\n
Ex.P-11, 13, 27, 34 F.I.R. Number is not mentioned.<\/p>\n
Then, gun was recovered in F.I.R. No. 40\/82 (Ex.P-36)<\/p>\n
which was sent to F.S.L., which was having one empty<\/p>\n
cartridge blocked in the barrel, and that at that time<\/p>\n
gun was with Kalu Ram, and that, Kalu Ram had<\/p>\n
committed murder of Moman Ram at place ‘O’ shown in<\/p>\n
Ex.P-2. It may be noticed that Ex.P-2 is the site plan<\/p>\n
of the present case, showing place of incident, which<\/p>\n
is a place situated south west to the shop of Jagan.<\/p>\n
During course of argument, we were told that in the<\/p>\n
case of murder of Moman Ram no challan was filed,<\/p>\n
rather final report was given, as the accused in that<\/p>\n
case being Kalu Ram, had become a subject matter of<\/p>\n
murder in the present case. This, in conjunction with<\/p>\n
the fact, that P.W. 4 Dalip, who is son of the
\n                                                       10<\/span><\/p>\n
informant, has deposed to be not knowing Moman Ram,<\/p>\n
nor to have ever seen him, and that he did not even<\/p>\n
hear Kalu Ram having killed or murdered Moman Ram on<\/p>\n
the same date of incident, (\u0915 \u0932 \u0928 \u092e \u092e\u0928 \u0915 \u0909\u0938    \u091c \u092e    \u0926\u0926\u092f<\/p>\n
\u0939 \u0910\u0938 \u092e\u0928 \u0928\u0939 \u0938\u0928 ). He deposed to be not aware about Kalu<\/p>\n
having undergone imprisonment. It would suffice to<\/p>\n
say, that if the story of Ex.P-36 were to be accepted,<\/p>\n
the two murders have taken place immediately one after<\/p>\n
another, and according to that report, this Kashi Ram<\/p>\n
was there, and claims to be nephew of Kalu Ram. In<\/p>\n
such circumstances, when he chooses to depose to have<\/p>\n
not even heard of Moman having been murdered by Kalu<\/p>\n
on that day, this, coupled with the above catalogued<\/p>\n
circumstances, Ex.P-36, on which implicit reliance has<\/p>\n
been placed by the learned trial court, cannot be<\/p>\n
relied upon at all. It is a different story, that<\/p>\n
Ex.P-36 is not even a document legally admissible in<\/p>\n
evidence in law. Thus, the very basis of basic<\/p>\n
assumption, made by the learned trial court, to place<\/p>\n
implicit reliance on these two witnesses P.W. 3 and<\/p>\n
P.W.4 falls flat.\n<\/p>\n<\/p>\n
          In this sequence in the F.I.R. Ex. P-1 it<\/p>\n
becomes very significant, as to whether it was lodged<\/p>\n
on 14th or 15th. There may be circumstances and cases,<\/p>\n
where even a day’s delay in lodging the report may not<\/p>\n
be of very serious consequence, but here are peculiar
\n                                                        11<\/span><\/p>\n
circumstances of the case, viz. we are asked to<\/p>\n
believe, that two cross murders have taken place, and<\/p>\n
present one being in retaliation. In this sequence<\/p>\n
this fact is required to be attached substantial<\/p>\n
importance, as to whether the F.I.R. was lodged on 14th<\/p>\n
or 15th.\n<\/p>\n<\/p>\n
           On looking at the front page of the F.I.R. it<\/p>\n
clearly purports to have been lodged on 14th at 7.45<\/p>\n
P.M., but then reading all the contents thereof shows,<\/p>\n
that it narrates the incident of yesterday, i.e. 13th,<\/p>\n
and then it is received by the Magistrate at 8.30 P.M.<\/p>\n
on 15th. In this background, a look at the statement of<\/p>\n
informant Fula Ram P.W. 1 shows, that he was cross<\/p>\n
examined thoroughly on this aspect, and he has deposed<\/p>\n
in examination in chief, to have lodged the report<\/p>\n
Ex.P-1, and has proved it, but he has not given the<\/p>\n
date. Then, he was cross examined in detail, and he<\/p>\n
has stated that after giving report he returned, the<\/p>\n
S.H.O. did not accompany him, and came later. Then, he<\/p>\n
has stated that the S.H.O. came on the next day at<\/p>\n
about 10-11 in the morning. Then, the witness has<\/p>\n
changed by deposing, that the S.H.O. had come at about<\/p>\n
10-11 in the night. Then, he further changed his<\/p>\n
statement, that the S.H.O. came to his village at 11<\/p>\n
same night of the lodging of the report, and<\/p>\n
immediately he saw the dead body, and that the accused
\n                                                       12<\/span><\/p>\n
Kashi Ram and Hari Singh were already there with the<\/p>\n
S.H.O., who were immediately arrested on lodging Ex.P-<\/p>\n
1, and the S.H.O. brought them with him. It may be<\/p>\n
noticed here, that the S.H.O. P.W. 11 does not say so<\/p>\n
to have arrested Kashi Ram and Hari Singh on receiving<\/p>\n
the report Ex.P-1. He has denied the suggestion about<\/p>\n
the report having not been lodged on 14th, and to have<\/p>\n
been lodged on 15th, by being delivered to the S.H.O.<\/p>\n
in the village only. Then, he has picked up another<\/p>\n
story by deposing, that at the time when he gave<\/p>\n
information on 14th, Ex.P-1 was not scribed, and Ex.P-1<\/p>\n
was scribed on 15th. This version was given out on<\/p>\n
being put the word “yesterday” appearing in the body<\/p>\n
of the F.I.R. Then he has again stated, that after<\/p>\n
giving report to the S.H.O. in police station, the<\/p>\n
S.H.O. made writing, and obtained his thumb mark on<\/p>\n
Ex.P-1, and he does not know as to how the word<\/p>\n
“yesterday” has occurred, and he has maintained that<\/p>\n
report was not lodged on 15th but on 14th, and that in<\/p>\n
earlier part of his statement he had wrongly stated<\/p>\n
that the report was lodged on 15th at village. Then, he<\/p>\n
was confronted with his police statement Ex.D-1 “A to<\/p>\n
B” being reference of F.I.R. No. 41 dt. 15.6.82, he<\/p>\n
stated, that he does not know as to how it came to be<\/p>\n
scribed. He denied the suggestion about the F.I.R.<\/p>\n
being lodged on 15th, describing it to be of 14th. Then,<\/p>\n
he has stated that his sister, Kashi Ram and Dalip had
\n                                                       13<\/span><\/p>\n
come early in the morning of 15th, and on that very day<\/p>\n
S.H.O. interrogated them on 15th. The arrival of<\/p>\n
sister, Dalip and Kashi Ram is relevant, because in<\/p>\n
the earlier part he has stated, that sister of the<\/p>\n
informant is married at Rampuriya, and when Kashi Ram<\/p>\n
and Dalip came from Rampuriya, his sister also came<\/p>\n
from Rampuriya, as she had learnt about the incident,<\/p>\n
and in this process the informant denied the<\/p>\n
suggestion about Dalip and Kashi Ram to be not there<\/p>\n
at the place of incident, and to have come only after<\/p>\n
learning about the incident. In this very sequence<\/p>\n
again, a look at the statement of P.W. 11 would show,<\/p>\n
that he deposed to have reached on the spot on<\/p>\n
15.6.1982, and inspected the site, and prepared Halaat<\/p>\n
Moka Ex.P-20. On 15.6.1982 he prepared the<\/p>\n
Panchayatnama Lash, Fard Surat Haal Lash being Ex.P-<\/p>\n
21, seized the sample earth and blood smeared earth,<\/p>\n
and got the post mortem examination done, report<\/p>\n
whereof is Ex.P-9. In juxtaposition of this, we may<\/p>\n
recapitulate that P.W.1 has deposed that the S.H.O.,<\/p>\n
immediately on reaching the spot saw the dead body,<\/p>\n
and obviously other things were done later, and Fard<\/p>\n
Surat Haal Lash Ex.P-21 is dated 15.6.1982, and very<\/p>\n
intelligently time has not been mentioned. The<\/p>\n
mentioning of time has been omitted, not only on this<\/p>\n
document, but on very many other documents as well.<\/p>\n
Even in arrest memo of Kashi Ram Ex.P-18 time has not
\n                                                       14<\/span><\/p>\n
been mentioned. Though arrest memo of Hari Singh does<\/p>\n
mention time being 9 P.M. Site inspection note does<\/p>\n
not bear any date and time. Likewise, even the<\/p>\n
information memo Ex.P-23 and Ex. P-24 do not mention<\/p>\n
time. Likewise, the information memo Ex.P-30 and Ex.P-<\/p>\n
31 do not mention any time. All this does cast serious<\/p>\n
doubt, about the fact of lodging of the report on 14th.<\/p>\n
         Not only this, it is significant to note,<\/p>\n
that a bare look at Ex.P-36 also shows, that thereupon<\/p>\n
it is endorsed that F.R. No. 34 was given on<\/p>\n
28.11.1982, under the heading “ADAM PATA”. It is<\/p>\n
notwithstanding all this, that as late as on 25.5.1983<\/p>\n
the I.O. has chosen to depose the challan having been<\/p>\n
filed on this Ex.P-36 after completing investigation.<\/p>\n
This clearly shows, height of either telling lies, or<\/p>\n
careless attitude of the S.H.O., in giving statement<\/p>\n
in the Court.\n<\/p>\n<\/p>\n
         Thus, it is clear, that the prosecution has<\/p>\n
resorted to manipulations on every convenient place,<\/p>\n
and has even gone to the extent of tendering<\/p>\n
inadmissible document in evidence, and the S.H.O. has<\/p>\n
gone to the extent of giving statements, even contrary<\/p>\n
to the contents of Ex.P-36. In such circumstances, the<\/p>\n
presence of P.W. 3 and 4, who are none else than the<\/p>\n
son of the informant, and the nephews of the deceased,
\n                                                       15<\/span><\/p>\n
cannot be presumed, as done by the learned trial<\/p>\n
court, and their evidence is required to be<\/p>\n
scrutinised with utmost care and caution, as to<\/p>\n
whether they were at all at the scene of incident, or<\/p>\n
that they had gone to village Rampuriya, to fetch the<\/p>\n
sister of the informant, and there having learnt about<\/p>\n
the incident, came in the morning, and thereafter the<\/p>\n
story was cooked up, introducing them as eye<\/p>\n
witnesses, and F.I.R. Ex.P-1 was subsequently lodged.<\/p>\n
         In the above background now we proceed to<\/p>\n
examine the material and important evidence on record,<\/p>\n
on which the prosecution seeks to rest its case.<\/p>\n
         As noticed above that evidence comprised of<\/p>\n
P.W.1, P.W.3 and P.W.4, as P.W. 2 has been declared<\/p>\n
hostile. Before proceeding with that, we may<\/p>\n
recapitulate the material part of the F.I.R. Ex.P-1,<\/p>\n
which is lodged by P.W.1 Fula Ram. According to this<\/p>\n
report after narrating the alleged actual incident,<\/p>\n
about the accused persons coming armed with weapons,<\/p>\n
and causing injuries to the deceased, deceased taking<\/p>\n
shelter in the shop of Jagan, but all of them having<\/p>\n
entered in the shop, and inflicted injuries, and<\/p>\n
having killed him. It is alleged in the report, that<\/p>\n
at that time Jagan, informant’s son Dalip and his<\/p>\n
nephew Kashi Ram were available on the bus stand, who
\n                                                       16<\/span><\/p>\n
had seen the incident, and very many other persons<\/p>\n
were there to see the incident. Thereafter on the<\/p>\n
informant’s receiving information he went to the shop<\/p>\n
of Jagan, and saw the deceased dead having injuries on<\/p>\n
his person. Thus, according to this report, P.W. 1<\/p>\n
Fula Ram informant is not an eye witness of the<\/p>\n
incident, and has lodged the report only on the basis<\/p>\n
of the information conveyed to him, obviously either<\/p>\n
by Dalip, Kashi Ram, and\/or Jagan. Then, coming to<\/p>\n
statement as given in the Court as P.W.1, it is<\/p>\n
deposed, that Kalu is on litigating terms with the<\/p>\n
relations of the accused persons. He was told about<\/p>\n
the incident to have occurred on the bus stand on the<\/p>\n
shop of Jagan Nath, he asked Jagan Nath about the<\/p>\n
incident, and he was told that Kalu has been killed,<\/p>\n
and Kalu did not do anything. Obviously as observed<\/p>\n
above, on that very day, at that particular time, as<\/p>\n
the story goes, Kalu had killed the father of the<\/p>\n
appellants, Shri Moman Ram, and since as has come in<\/p>\n
the evidence of the two eye witnesses, they did not<\/p>\n
want to own that incident, and even decided to depose<\/p>\n
ignorance. It is in that sequence, that he has<\/p>\n
unnecessarily deposed, that his brother (deceased) did<\/p>\n
not do anything. Then he has deposed, that Jagan Nath<\/p>\n
had informed, that at the time of incident Dalip and<\/p>\n
Kashi Ram were there. Then, he made enquiries from<\/p>\n
Dalip and Kashi Ram. At the outset it may be observed,
\n                                                       17<\/span><\/p>\n
that it does not stand to reason, that if so close<\/p>\n
relatives being the nephews of the deceased had seen<\/p>\n
the incident happening, they would not do anything,<\/p>\n
and informant would be left to be informed about their<\/p>\n
presence by the other alleged eye witness Jagan. Then,<\/p>\n
in cross examination he has further stated, that on<\/p>\n
14th he had gone to village Jogiwala, wherefrom he<\/p>\n
returned at 3.30 in the noon, he had gone to Jogiwala<\/p>\n
on foot, though there is bus available. Then, he<\/p>\n
stated, that when he went to ask Jagan nobody else was<\/p>\n
with him. Then he has deposed, that the house of Kalu,<\/p>\n
his another brother Ranjit, and that of the witness<\/p>\n
are at the same place. He stated that Kashi Ram lives<\/p>\n
in the house of his father. While Dalip lives with the<\/p>\n
witness, and that the shop of Jagan is at a distance<\/p>\n
of 500 paces. He has also stated, that on 14th evening<\/p>\n
the S.H.O. had come in the village, and he does not<\/p>\n
know as to whether they had seen the dead body of<\/p>\n
Moman Ram. Then he had admitted, that Moman Ram had<\/p>\n
died at 5 P.M. on 14th, who was father of the accused.<\/p>\n
Then, he has clarified, that he was told that Moman<\/p>\n
Ram had died at his own house, and he does not know as<\/p>\n
to how Moman Ram died, and he has reiterated, that<\/p>\n
when he learnt that the accused persons have killed<\/p>\n
his brother Kalu, he did not hear, or learn that Moman<\/p>\n
Ram had been shot dead by Kalu. He has also stated,<\/p>\n
that after returning from Jogiwala, Dalip (some times
\n                                                       18<\/span><\/p>\n
described as Deep Chand) and Kashi Ram had informed of<\/p>\n
the incident at his house. He was not told by these<\/p>\n
two witnesses that at that time Kalu Ram was having<\/p>\n
gun with him. Then, he was contradicted on the aspect<\/p>\n
of his having told about different weapons. He was<\/p>\n
also asked various questions about the situation<\/p>\n
inside the shop, which would have been put topsy-<\/p>\n
turvy, if any beating would have been given in inside<\/p>\n
the shop, as alleged, like water having been split<\/p>\n
from the pitcher, pitcher to have broken, or presence<\/p>\n
of canister of flour etc. Then, he has described the<\/p>\n
width of that Kothri to be 5 to 6 ft., and height to<\/p>\n
be 7 to 8 ft. Thereafter, significantly he has stated<\/p>\n
that at 11 in the night when S.H.O. came, Dalip and<\/p>\n
Kashi Ram were not available in the village as they<\/p>\n
had run away to Ramlpuriya, he did not find them at<\/p>\n
house, even when he returned from P.S. Bherani, though<\/p>\n
while he went they were there. Then, on the court<\/p>\n
question he expressed inability to show any reason as<\/p>\n
to why these two persons Dalip and Kashi Ram were not<\/p>\n
taken by him to police station for lodging report. He<\/p>\n
has also admitted, that his sister is married at<\/p>\n
Rampuriya, and when Dalip and Kashi Ram returned, his<\/p>\n
sister was also with them, because she had learnt<\/p>\n
about the incident. He has denied the suggestion about<\/p>\n
Dalip and Kashi Ram being not there at the time of<\/p>\n
incident, and to have come from Rampuriya only on
\n                                                        19<\/span><\/p>\n
learning about the incident. Then, significantly he<\/p>\n
has stated that Dalip and Kashi Ram had called his<\/p>\n
sister (\u0926\u0926\u0932 \u092a \u0914 \u0915 \u0936 \u092e \u092e   \u092c\u0939\u0928 \u0915 \u092c\u0932 \u0915 \u0932 \u090f \u0925\u0964). He has<\/p>\n
also stated, that his sister, Dalip and Kashi Ram had<\/p>\n
come early in the morning of 15th, and that very day<\/p>\n
S.H.O. had interrogated them.\n<\/p>\n<\/p>\n
          It is in this background, that now we<\/p>\n
proceed to examine the evidence of P.W. 3 Kashi Ram,<\/p>\n
who is son of Ranjit, another brother of P.W.1 Fula<\/p>\n
Ram, and the deceased. He has deposed that at 2 in the<\/p>\n
noon, on the fateful day, he along with Dalip were on<\/p>\n
the bus stand, there was a dialogue between Kalu and<\/p>\n
Mange Ram and Om Prakash. Mange Ram is the relative of<\/p>\n
the accused persons, though the deceased had no<\/p>\n
quarrel with Mange Ram. He has stated that on the bus<\/p>\n
stand, he and Dalip were going to fetch their Bhua<\/p>\n
(sister of P.W.1 Fula Ram). At that time his uncle<\/p>\n
Kalu came from towards Chiriya Gandhi, he was having a<\/p>\n
gun, and the accused persons were also behind him.<\/p>\n
Bhoop Singh was having Kulhari, and others were having<\/p>\n
lathis, and they were chasing and beating him. The<\/p>\n
deceased stopped at the Dhaba of Jagan. All the five<\/p>\n
accused persons gave beating there, then the deceased<\/p>\n
took shelter in the Kothri. Thereupon Hari Singh and<\/p>\n
Bhhop Singh entered Kothri also, Jagan Nath tried to<\/p>\n
intervene, but Kashi pushed him away, and when they
\n                                                       20<\/span><\/p>\n
came forward, they were threatened with dire<\/p>\n
consequence, and were told that his uncle has been<\/p>\n
killed, and they may see their uncle, and do whatever<\/p>\n
they want to do. Then, they went to home, where nobody<\/p>\n
was there, and only aunt was there. Then, at about 3-4<\/p>\n
P.M. Fula came to home, and the story was narrated.<\/p>\n
Then, Fula went to bus stand, and saw Kalu. At this<\/p>\n
place it may at once be observed, that the narration<\/p>\n
given by this witness is contradicted by the narration<\/p>\n
given by Fula, inasmuch as according to that witness<\/p>\n
P.W.1, he was informed when he returned from village<\/p>\n
that his brother has been killed who was sitting on<\/p>\n
the shop of Jagan Nath. Then, he went to Jagan, and<\/p>\n
made enquiry, and was told the sequence of event, so<\/p>\n
also of the fact that Dalip and Kashi were also seeing<\/p>\n
the incident. It does not stand to reason, that if<\/p>\n
these witnesses had narrated him the event at the<\/p>\n
house, there was no occasion for Fula to learn from<\/p>\n
unknown sources, and go to Jagan, and learn these two<\/p>\n
persons to be eye witnesses. We may stress again, that<\/p>\n
according to this witness he was at the bus stand,<\/p>\n
because he was going to fetch his Bhua, who was living<\/p>\n
at Rampuriya, who had come in the early morning of<\/p>\n
15th. In cross examination he has stated, that his<\/p>\n
house is at a distance of 100-150 paces from the bus<\/p>\n
stand. At the time he reached the bus stand, bus had<\/p>\n
already come from Bhadra, in which bus itself they had
\n                                                       21<\/span><\/p>\n
to go. Then he has stated, that when he saw Kalu for<\/p>\n
the first time, he was near the Chhapar of Jagan, and<\/p>\n
was holding gun in his hand, it was not hanging on his<\/p>\n
neck. The bus coming from Bhadra was to go to Kagdana,<\/p>\n
had haulted to drop the passengers, and since at that<\/p>\n
time another bus goes to Bhadra, therefore, those<\/p>\n
passengers were also available at the bus stand. Then,<\/p>\n
he was confronted with some portion of his police<\/p>\n
statement Ex.D-2. He has stated, that when they saw<\/p>\n
Kalu, they had just come on the bus stand, and does<\/p>\n
not know since how long Kalu was there on the bus<\/p>\n
stand. He has also stated, that it is only when<\/p>\n
accused persons had gone away, that they went to the<\/p>\n
house. Of course, before that they had seen Kalu<\/p>\n
inside the Kothri. On this aspect he was again<\/p>\n
confronted with Ex.D-2, then he has stated that he was<\/p>\n
standing at a distance of about 20 paces from the shop<\/p>\n
of Jagan, in the east of the house of Hans Ram Gurda,<\/p>\n
and when he returned home, the bus had come from<\/p>\n
Kagdana going to Bhadra. He has denied to have stated<\/p>\n
the portion A to B in Ex.D-2, about he, along with<\/p>\n
Dalip to have immediately rushed to house, and to have<\/p>\n
informed his uncle Fula Ram the whole incident, to<\/p>\n
which he stated that this was not so stated by him, as<\/p>\n
his uncle had already gone to other village, and had<\/p>\n
come later. He did not accompany Fula, when Fula had<\/p>\n
come to see Kalu. Then, he has stated that he was
\n                                                        22<\/span><\/p>\n
already interrogated by the police on 13th. Then, he<\/p>\n
informed that he does not know about dates. However,<\/p>\n
he was interrogated after three days of the incident.<\/p>\n
Significantly he has also stated that he was not in<\/p>\n
the village as he and Dalip had gone to village<\/p>\n
Rampuriya to bring their Bhua,   who is married at<\/p>\n
Rampuriya. Rampuriya is at a distance of 4 Kos from<\/p>\n
Gandhi Bari (around 12 kms.), and they had gone on<\/p>\n
foot, even though bus is available for going there. He<\/p>\n
has also stated, that on the date of incident at the<\/p>\n
time of around cow dust they had gone, they have<\/p>\n
narrated the incident to their Bhua, and have come on<\/p>\n
the next day in the morning. He has stated, that when<\/p>\n
they came from village Rampuriya, police had already<\/p>\n
come in the village, they were called for next day at<\/p>\n
Bhadra, and on the still next day his statement was<\/p>\n
recorded. Then, significantly he has stated that at<\/p>\n
the time of incident Hem Raj, Nahar Singh and many<\/p>\n
more persons were there on the spot. Neighbours were<\/p>\n
also there. Significantly no independent witness has<\/p>\n
been examined by the prosecution. Then, he has stated<\/p>\n
that he does not know father of the accused being<\/p>\n
Moman Ram, and that he never had any dealing with him,<\/p>\n
and stated to be knowing the accused persons from the<\/p>\n
date of incident only. He stated that his uncle Kalu<\/p>\n
was quite strong man. He has deposed ignorance about<\/p>\n
Kalu having already served sentence for the offence of
\n                                                       23<\/span><\/p>\n
murder of Laxman Dhilu. Then, he has stated that Mange<\/p>\n
Ram is the real Bahnoi of the accused persons, and has<\/p>\n
stated that subsequently he heard that Kalu had killed<\/p>\n
Moman. He had denied the suggestion about not having<\/p>\n
seen the incident, and to be giving false statement,<\/p>\n
or that on the date of incident he was in Rampuriya<\/p>\n
only, and to have not seen the incident.\n<\/p>\n<\/p>\n
          Now, we take up the evidence of P.W.4 Dalip.<\/p>\n
He has stated, that on the fateful day at about 2, he<\/p>\n
along with Kashi were there on the bus stand, who were<\/p>\n
going to fetch their Bhua, because his sisters were<\/p>\n
scheduled to be marred on 24th. His uncle Kalu came<\/p>\n
from towards Chiriya Gandhi, who was having gun, and<\/p>\n
was being chased by the accused persons, they came<\/p>\n
near the shop of Jagan, and started showering blows on<\/p>\n
Kalu with Lathi and Kulharis. The deceased took<\/p>\n
shelter in the shop, thereupon Hari Singh and Bhoop<\/p>\n
Singh also went in the shop and inflicted further<\/p>\n
injuries, with the result that Kalu died. According to<\/p>\n
him many more persons were also there at the scene. He<\/p>\n
also states, that after the accused persons had gone<\/p>\n
about 50-60 paces after killing Kalu, then they went<\/p>\n
to deceased. Then, from the spot they went to home,<\/p>\n
narrated the whole thing to Fula Ram. Fula Ram then<\/p>\n
came to the place of incident, and asked Jagan, then<\/p>\n
he saw Kalu, and then went home. Then, Fula Ram went
\n                                                       24<\/span><\/p>\n
to lodge report at the police station Bherani. The<\/p>\n
motive is deposed by these witnesses to be, that his<\/p>\n
uncle had litigation with some relatives of the<\/p>\n
accused persons. He has stated Mange Ram to be Bahnoi<\/p>\n
of the accused persons, and father of the accused<\/p>\n
persons being Shri Moman Ram, and there was bad blood<\/p>\n
between the deceased and the accused persons, and<\/p>\n
Harpat Ram is deposed to be father of Om Prakash and<\/p>\n
Mange Ram. Kalu Ram was taking side of Jai Singh, in<\/p>\n
the dispute against Mange Ram. This so called motive<\/p>\n
is not deposed by anyone else, whether by Fula Ram, or<\/p>\n
by Kashi Ram. Then, the story narrated by Kashi Ram<\/p>\n
about, when Kalu was killed they intervened, is not<\/p>\n
deposed by this P.W.4, rather Kashi Ram also<\/p>\n
contradicts Fula Ram, about the source of information<\/p>\n
of Fula, as to whether it was through Jagan, or from<\/p>\n
other source, and about his having come to know, that<\/p>\n
these persons are two eye witnesses. In cross<\/p>\n
examination he stated, that the land in dispute was<\/p>\n
cultivated by Harpat Ram, which is a government land,<\/p>\n
and did not belong to Kalu or Jai Singh. He has<\/p>\n
stated, that when they left home Kalu was not at the<\/p>\n
house, as Kalu had already left the house at about<\/p>\n
1.30 in the noon, but at that time he did not see gun<\/p>\n
with Kalu, and at the bus stand he was having the gun.<\/p>\n
He deposed ignorance as to from where Kalu procured<\/p>\n
gun, available with him at bus stand. Then, he deposed
\n                                                       25<\/span><\/p>\n
to be not knowing Moman, and that he never saw Moman.<\/p>\n
Then he has deposed, that Moman lives in another Bas,<\/p>\n
and he had no occasion to go to the house of Moman,<\/p>\n
and Moman never happened to visit their house. Then,<\/p>\n
significantly he has also stated, that he did not ever<\/p>\n
hear, that on that very day Kalu had killed Moman.<\/p>\n
Then as against the evidence of P.W.3, he has admitted<\/p>\n
it to be true, that Kalu had undergone sentence for<\/p>\n
murder of Laxman (Lichman). Then, contradicting P.W.3<\/p>\n
he has stated, that the incident had already taken<\/p>\n
place before bus having come from Bhadra, destined to<\/p>\n
go to Kagdana, rather bus came later, and since the<\/p>\n
incident had taken place, therefore, they did not go<\/p>\n
to Rampuriya, and returned home, and went to Rampuriya<\/p>\n
in the evening. He has stated, that when they returned<\/p>\n
home, bus from Rampuriya to Bhadra had already gone to<\/p>\n
Bhadra, so also the bus going from Bhadra to Rampuriya<\/p>\n
had already gone. He claims to have remained at bus<\/p>\n
stand for half an hour, and many persons had come<\/p>\n
there, but nobody intervened to prevent the accused<\/p>\n
from committing the incident. It is strange, that if a<\/p>\n
person armed with gun is belaboured by five accused,<\/p>\n
armed with Lathis and Kulhari at the bus stand at a<\/p>\n
time when two buses have arrived, and many persons are<\/p>\n
there, nobody would either intervene, or would be<\/p>\n
available to see the incident, and narrate it in the<\/p>\n
Court. It is stated, that when he saw Kalu, he was
\n                                                       26<\/span><\/p>\n
going running from towards Chirya Gandhi, going<\/p>\n
towards west. At that time Kalu was at the house of<\/p>\n
Hans Ram, whose house is in the north south lane,<\/p>\n
while the lane of bus stand is towards west, and house<\/p>\n
of Hans Ram is not visible from the shop of Jagan, but<\/p>\n
is visible from the open Chowk. He has stated to have<\/p>\n
not seen Kalu firing any bullet near the house of Hans<\/p>\n
Ram Chamar, and also did not see anybody living near<\/p>\n
the house of Hans Ram having sustained gunshot injury,<\/p>\n
nor did he hear the rapport of gunshot. He stated,<\/p>\n
that accused persons were at a distance of 2-3 paces<\/p>\n
from Kalu, they remained at bus stand for half an<\/p>\n
hour, and during this time they did not hear the<\/p>\n
rapport of gun shot. Then, he narrated the injuries<\/p>\n
received by the deceased. He stated that at the time<\/p>\n
when Kalu was being beaten he was having gun with him,<\/p>\n
and that no blow was aimed by the accused persons on<\/p>\n
the gun, or on the wrist, nor did they try to snatch<\/p>\n
the gun, and stated, that after killing they took away<\/p>\n
gun. Then, he has deposed, that he was standing<\/p>\n
towards the north, in the southern lane, at a distance<\/p>\n
of around 50 paces. Significantly he has stated, that<\/p>\n
injuries of Kalu did not bleed, which injuries were<\/p>\n
caused by Barchhi. He stated that when accused persons<\/p>\n
were chasing Kalu, the customers sitting on the shop<\/p>\n
of Jagan had got scared, and ran away. However, the<\/p>\n
passengers of the bus remained there only. According
\n                                                       27<\/span><\/p>\n
to him they returned from Rampuriya at 11 A.M. in the<\/p>\n
next morning, while according to Fula Ram P.W.1 and<\/p>\n
P.W. 3 Kashi Ram, they had come in the early morning.<\/p>\n
He stated that he along with Bhua came on foot, and<\/p>\n
not by bus. According to him police did not ask as to<\/p>\n
where they were standing on the side. Both these<\/p>\n
witnesses being P.W.3 and 4 were interrogated by the<\/p>\n
police at the same time. Then, Dy.S.P. came to record<\/p>\n
the statement on 3rd day in the rest house at Bhadra.<\/p>\n
He has stated that Fula had not instructed them to go<\/p>\n
to Rampuriya, but they went Rampuriya in frightened<\/p>\n
state of mind, being afraid of accused persons,<\/p>\n
because they were in Chiriya Gandhi itself, and next<\/p>\n
day they came on their own, though they had not<\/p>\n
overcome the fear, and had gone all alone, did not<\/p>\n
carry any weapon either. He has deposed ignorance<\/p>\n
about Kalu having killed Moman from the same gun, or<\/p>\n
that Kalu intended to kill the sons of Moman also,<\/p>\n
from that very gun. He had denied the suggestion,<\/p>\n
about his not being there in the village, or to have<\/p>\n
gone to village Rampuriya. He has stated that he did<\/p>\n
not tell Fula Ram, that Kalu was sitting on the shop<\/p>\n
of Jagn before death, rather he had informed that Kalu<\/p>\n
was running with the gun, being chased by the accused<\/p>\n
persons. He stated that he had told Fula Ram that the<\/p>\n
accused persons threatened them with dire consequence<\/p>\n
if they intervene. He has denied the suggestion about
\n                                                       28<\/span><\/p>\n
he and Kashi having not narrated anything to Fula Ram.<\/p>\n
Then he has stated, that he does not know as to<\/p>\n
towards which side the accused persons had gone after<\/p>\n
incident, or from which lane they went. He denied the<\/p>\n
suggestion about not seeing the incident, and deposing<\/p>\n
falsely being nephew of the deceased.\n<\/p>\n<\/p>\n
         This is the whole stock of the eye witnesses.<\/p>\n
In this background a look at the statement of P.W.2<\/p>\n
Jagan would show, that he has not at all supported the<\/p>\n
prosecution case, and has stated, that at about<\/p>\n
quarter to two there was attack, and at that time he<\/p>\n
was coming after having purchased sugar, Kashi, Bhoop<\/p>\n
Singh, Hari Singh were coming having killed Kalu, and<\/p>\n
had run away. He identified the accused persons; one<\/p>\n
was having axe, the other was having Lathi. According<\/p>\n
to him many passengers of the bus had come, who had<\/p>\n
ran away. Then, thereafter Kashi and Dalip had come,<\/p>\n
and went away after seeing. He has denied to have seen<\/p>\n
any beating, but beating was given on the shop. The<\/p>\n
prosecution of course got him declared hostile.<\/p>\n
         In our view, on the face of the above state<\/p>\n
of evidence of the three persons, which contradicts<\/p>\n
each other, on all material particulars, and aspects,<\/p>\n
including, rather basic aspects being, as to how Fula<\/p>\n
came to know of the incident, as admittedly Fula does
\n                                                       29<\/span><\/p>\n
not claim to be eye witness. According to Fula he<\/p>\n
learnt about the incident, and then ascertained facts<\/p>\n
from Jagan, who told that Kashi and Dalip were also<\/p>\n
seeing the incident, while according to Kashi and<\/p>\n
Dalip they were there at the bus stand, and had seen<\/p>\n
the incident, and thereafter they rushed to the house,<\/p>\n
and narrated the things to Fula Ram. Thus, in the<\/p>\n
background of the facts, that admittedly there was<\/p>\n
marriage in the family, i.e. sisters of Dalip were<\/p>\n
scheduled to be married on 24th, and according to the<\/p>\n
witnesses they had gone in the evening to bring their<\/p>\n
Bhua to Rampuria, obviously in the marriage. The two<\/p>\n
witnesses maintained, that they had gone at the bus<\/p>\n
stand, at that time, for the purpose of going to<\/p>\n
Rampuriya, to fetch their Bhua. In this background<\/p>\n
what the Court is asked to believe by these two<\/p>\n
witnesses is, that despite being eye witness of the<\/p>\n
incident, despite the accused persons being of the<\/p>\n
same village, despite they being in a frightened state<\/p>\n
of mind, and despite bus being available, they had<\/p>\n
gone 12 kms. on foot only, after sun set, all alone,<\/p>\n
even without carrying any weapon, and had come back<\/p>\n
with their Bhua in the early morning. It is also<\/p>\n
significant to note, that admittedly Fula was away to<\/p>\n
other village, and did not instruct these witnesses to<\/p>\n
go Rampuriya to fetch Bhua, yet they claim to have<\/p>\n
gone to bus stand to go to Rampuriya. In this
\n                                                        30<\/span><\/p>\n
background, what is significant to note is, that as<\/p>\n
this Court is desired to believe through Ex.P-36, that<\/p>\n
Moman Ram, father of the accused persons had been shot<\/p>\n
dead by Kalu that very time, and in the retaliation,<\/p>\n
and hot pursuit, the deceased was killed. As against<\/p>\n
this both these witnesses have clearly denied this<\/p>\n
fact, so much so that despite their claiming to be at<\/p>\n
bus stand for half an hour, they did not hear any<\/p>\n
rapport of the gun shot, much less did they see Moman<\/p>\n
Ram lying in the lane, in which, and at the place at<\/p>\n
which, they had first noticed Kalu Ram going. We are<\/p>\n
not speaking about existence of motive or the incident<\/p>\n
having taken place in retaliation, or the like, but we<\/p>\n
are considering this aspect, for the only purpose of<\/p>\n
judging about the fact, as to whether two witnesses<\/p>\n
P.W.3, and P.W.4 were at all there at the time of<\/p>\n
incident, obviously they had seen the incident, or<\/p>\n
not, or are introduced. According to this witness when<\/p>\n
they returned from Rampuriya police was available in<\/p>\n
the village, but their statements were recorded on<\/p>\n
third day of the incident, despite the fact, that<\/p>\n
these two persons only are the persons, who claimed to<\/p>\n
be the eye witnesses.\n<\/p>\n<\/p>\n
          In our view, in this state of affairs, the<\/p>\n
fact, as to whether the F.I.R. was lodged on 14th or<\/p>\n
15th acquires greater significance, inasmuch as if it
\n                                                        31<\/span><\/p>\n
is lodged on 15th, the possibilities are not ruled out,<\/p>\n
that after P.W.3 and P.W.4 had arrived in the village<\/p>\n
from Rampuriya, it was decided to introduce them as<\/p>\n
eye witnesses, and then only F.I.R. was lodged.<\/p>\n
Obviously, otherwise F.I.R. should have been lodged on<\/p>\n
14th itself, and the circumstances already discussed<\/p>\n
above do clearly tilt heavily towards the fact of<\/p>\n
F.I.R. having been lodged on 15th.\n<\/p>\n<\/p>\n
          It is well nigh possible that these two<\/p>\n
witnesses had gone to Rampuriya to fetch their Bhua,<\/p>\n
while Fula had gone to another village, and some<\/p>\n
incident ensued between Moman Ram and Kalu Ram, being<\/p>\n
Kalu Ram killing Moman with fire arm, and in<\/p>\n
retaliation, accused persons might have killed Kalu<\/p>\n
Ram, and believing this sequence of events, finding no<\/p>\n
evidence, the two witnesses P.W.3 and P.W.4 are<\/p>\n
introduced, to ensure conviction.\n<\/p>\n<\/p>\n
          We are afraid, that thus the matter rests in<\/p>\n
realm of suspicion, howsoever strong which may be, it<\/p>\n
cannot take the place of proof. And as found above, in<\/p>\n
our view, the evidence of three witnesses being P.W.1,<\/p>\n
P.W.3 and P.W.4 do not at all inspire confidence, to<\/p>\n
enable us to sustain conviction.\n<\/p>\n<\/p>\n
          The result of the aforesaid discussion is,
\n                                                       32<\/span><\/p>\n
that the appeal is allowed. The conviction and<\/p>\n
sentence passed by the learned trial court against all<\/p>\n
the appellants are set aside. They are acquitted of<\/p>\n
all the above charges, they are on bail, their bail<\/p>\n
bonds are cancelled, and they need not surrender.<\/p>\n
( K.S.CHAUDHARY ),J.                 ( N P GUPTA ),J.\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Bhoop Singh vs State on 12 February, 2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T BHOOP SINGH & ORS. V\/S The State of Rajasthan CRIMINAL APPEAL No. 363 of 1983 Date of Judgment : 12th Feb. 2009 PRESENT HON’BLE […]<\/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-217816","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nBhoop Singh vs State on 12 February, 2009 - 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\/bhoop-singh-vs-state-on-12-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhoop Singh vs State on 12 February, 2009 - 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