Shankarlal
Vs. State of Rajasthan [2004] Insc 391 (7 May 2004)
N Santosh
Hegde, B P Singh & Dr.Ar Lakshmanan. Santosh Hegde, J.
Appellant
has been convicted by the Additional Sessions Judge, Ramsinghnagar for an
offence punishable under section 302 IPC and was sentenced to undergo
imprisonment for life and a fine of Rs.100. Said conviction and sentenced came
to be confirmed by the High Court of Judicature for Rajasthan at Jodhpur. It is against the said conviction
and sentence imposed by the two courts below that the appellant is before us in
this appeal.
Briefly
stated the prosecution case is that appellant and one Om Prakash deceased in
this case were working as labourers with one Pokar Ram in the year 1980. They
were employed to water fields wherein some wheat and gram were sown. On
4.4.1980 one Ram Rakh son of said Pokar Ram wanted the field to be watered
therefore in the early morning at about 4 a.m. he sent the appellant and the
deceased to irrigate the land. At about 9 a.m. that morning said Ram Rakh took food for the said two persons who were
working in the field. At that time it is stated the appellant complained to said
Ram Rakh that deceased Om Prakash is not doing his work properly and to advise
him properly. It is stated said Ram Rakh settled the misunderstanding between
the appellant and the deceased and went to his other fields. It is the
prosecution case that one Sohan Singh PW-6 who is also a resident of the same
village as Ram Rakh had entered into an agreement with the latter for the sale of
Gowar about 10 days before the date of incident. Since PW-6 had a buyer for the
said Gowar and the same had to be weighed on the date of incident he wanted to
meet PW-2 and went to his house but he was told that Ram Rakh was in his field
therefore PW-6 started going towards the field of Ram Rakh which was about 4-5
miles away from the village by foot. It is during this journey of PW-6 it is
alleged at about 1.30
p.m. he heard a noise
of quarrel from the corner of a field and when he moved towards the said place
he saw one person hitting another with an axe. It is the prosecution case that
this witness later identified appellant as the person who was assaulting the
other person.
PW-6
further states that when he reached near the place of attack he saw 2 axe
injuries on the victim and he also saw the appellant fleeing from the place of
incident. Having gone near the place of attack and witnessed the attack this
witness stated that he got frightened and thinking that he may also be attacked
he returned to the village by taking another route. By the time he returned to
the village it was about 4 or 4.15 p.m. He
then went to the house of Ram Rakh and his brother Khyali Ram but he could not
meet them therefore he came to the square of the village near the Hanuman Mandir
and he saw PW-2 Khyali Ram coming. That is when he mentioned to Khyali Ram
about the incident in question. It is the case of the prosecution thereafter
PW-2 and 5 to 7 people went to the place of incident and saw the deceased lying
dead thereafter PW-2 went to the village Sarpanch and accompanied by him went
to the Police Station at Suratgarh and lodged a complaint at about 3.15 a.m. on
5.4.1980, Police Station being about 30 miles away from the place of incident.
On a statement recorded therein the I.O. registered a case and came to the
place of incident and having completed the investigation thereafter filed a chargesheet
and based on the evidence produced by the prosecution in the trial the
appellant was convicted as stated above which conviction came to be confirmed
by the High Court.
In
this appeal Mr. V S Chauhan, learned advocate appearing for the appellant
contended that the only eye witness to the incident in question being PW-6 who
is a chance witness his evidence ought to have been considered more carefully
than has been done by the 2 courts below. He contended that the possibility of
this witness being present at that time of the day at that place is next to
impossible and from the contradictions in his evidence it is clear that he is
really not an eye witness but a set up witness. He also pointed out though the
incident in question according to the prosecution had occurred at about 1.30 p.m. a complaint in this regard was lodged only at 3.15 a.m. on the next day. The Police Station even though
about 30 miles away in the normal course it would not have taken so much time
for anybody to commute and reach the Police Station because of the availability
of the tractor in the village. Learned counsel also pointed out that a perusal
of the complaint gives an impression that it is a document prepared after
considerable deliberation and most likely having noticed a blind murder by
suspicion appellant was blamed as an accused. He also pointed out that the
alleged motive is too trivial and on the facts of this case hardly any ground
for committing the murder.
Ms. Madhurima
Tatia, learned counsel appearing for the respondent State however rebutted the
argument of learned counsel for the appellant and contended that it is but
natural for a witness like PW-6 to have made an effort to contact Ram Rakh
because he was committed to get the Gowar weighed so that the purchasers could
collect the same therefore in this process he had gone in search of Ram Rakh
and it is in the field of said Ram Rakh he found the appellant attacking the
deceased. She also contended as soon as he returned back to the village he
intimated this incident to PW-2 and thereafter by the time they could go to the
place of incident and return to village and contact the village Sarpanch it had
become almost dark hence delay if any, occasioned in lodging the complaint has
been explained by the prosecution therefore she supported the judgments of the
2 courts below.
Even
according to the prosecution the only witness to the incident in question is
PW-6 therefore as contended by learned counsel for the appellant we will have
to examine his evidence carefully. If we do so then we notice that on the date
of incident he had gone to a village Upli for some work. From there he came
back by bus at about 11'O clock. He then allegedly went to the village to meet
Ram Rakh where he was told by his wife that the latter had gone to the field.
It is the prosecution case itself that the distance between the field of Ram Rakh
and the village is about 4-5 miles and PW-6 covered that distance on foot and
when he reached near the field of Ram Rakh he heard a quarrel and when he went
towards the place of quarrel he saw the appellant attack the deceased with an
axe. It is his further case that when he reached near the deceased the
appellant ran away.
It is
at this point of time he states that he got scared and he took a different
route than the one he took on the way and reached the village at about 4 or 4.15 p.m. It is his case that when he went to the house of Ram
Rakh he could not find him therefore he came near the village square where he
met PW-2 Khyali Ram. From the above evidence of PW-6 it is apparent that though
there were persons available on his way back, he did not inform anybody about
the incident. Even when he reached the village and met Ram Rakh's wife he did
not inform her about the incident and it is for the first time he informs about
this incident to PW-2 at the village square at about 4.15 p.m. Contrary to what
he stated in the examination in chief that he saw only one assault on the
deceased, in the cross examination he stated that he saw the appellant attack
the deceased twice and both the injuries were caused in his presence. It is
also to be noticed from his cross examination that when he met PW-2 Khyali Ram
and told him about the incident in question but PW-2 supposedly told him that
he had already come to know of the incident from PW-14. The prosecution has not
found how PW-14 came to know of the incident. In this background if we
appreciate the evidence of PW-6 we notice the fact that he is purely a chance
witness whose presence at the place of the incident is highly doubtful. His
conduct too seems to be unnatural in not informing anyone else in the village
until he met Khyali Ram at the village square. We also notice that there is
unexplained delay in filing the complaint inasmuch as according to the
prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. on 5.4.1980. Though the distance is about 30 miles
from the place of incident, the complainant had the facility of using the
tractors available in the village and they did use the same for travelling to
the Police Station. In such circumstances this unexplained long delay also
creates a doubt in our mind as to the genuineness of the prosecution case. Once
we are not convinced with the evidence of PW-6 then there is no other material
to base a conviction on the appellant hence we are of the opinion that the
appellant is entitled to the benefit of doubt therefore this appeal succeeds
and is allowed. The judgment and order of conviction of the 2 courts below are
set aside. The appellant is acquitted of the charge framed against him. From
the records we notice that the appellant is on bail. If so his bailbonds shall
stand discharged.
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