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Jodhraj Anr. Vs. State of Rajasthan

[Criminal Appeal No. 1779 of 2019 arising out of SLP (Crl.) No. 8410 of 2016]

[Criminal Appeal No. 1780 of 2019 arising out of SLP (Crl.) No. 5350 of 2017]

M. R. Shah, J.

1.Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 19.01.2016 passed by the High Court of Judicature for
Rajasthan, Jaipur Bench in DB Criminal Appeal No. 549 of 2012 by which the High
Court has confirmed the conviction of the appellants herein – original Accused
Nos. 1 and 12 for the offences punishable under Section 302 r/w Section 149 of
the IPC, the original Accused have preferred the present appeal.

2. By the impugned Judgment and Order, the High Court has acquitted the respondent herein Bhanwar Lal Original Accused No. 3. Therefore, the State
has preferred an appeal against his acquittal.

3. The case of the prosecution is that on 22.5.2005 in the night
at 9.30 P.M., in the revenue estate of village Kadiayavan, 14 persons namely
Jodhraj s/o Mathura Lal, Hemraj s/o Birdhi Lal, Bhanwar Lal s/o Mathura Lal,
Mathura Lal s/o Baldev, Dwarka Lal s/o Ram Narayan, Dev Kishan s/o Ram Narayan,
Prakash @ Om Prakash s/o Birdhi Lal, Naval @ Naval Kishore s/o Birdhi Lal,
Badri Lal s/o Kanwar Lal, Ram Prasad s/o Narayan @ Ram Narayan, Prabhu Lal s/o
Bridhi Lal, Jagdish Prasad s/o Mathura Lal, Ram Dayal s/o Ram Narayan and
Pooran Mal s/o Ram Narayan, constituted unlawful assembly and caused injuries
to Hariram, as a result of which, on the intervening night of 22nd May and 23rd May of
2005, Hariram died.

3.1 That all the accused came to be tried by the Learned Trial Court for the offences punishable under Sections 147, 148, 323/149, 324/149, 326/149,
3/2 r/w 149 and 379 of the IPC.

3.2 To prove the case, the prosecution examined in all 18 witnesses including PW2 Om Prakash and PW3 Ram Dayal – so called eyewitnesses. The
prosecution also brought on record the documentary evidence such as injury
report relating to deceased Hari Ram. In the Injury Report, the following
injuries were found on the deceased Hari Ram:

“(i) abrasion 1 cm X 1 cm, right side of forehead, simple,
blunt.

(ii) Incised wound, 7 cm X 1cm, muscle deep, right side of neck,
obliquely, simple, sharp.

(iii) Incised wound, 20cm X 7 cm, intestine coming out, anterior
on abdomen, longitudinal, grievous and dangerous to life, sharp.

3.3 Upon appreciation of evidence, the Learned Trial Court convicted five accused – Jodhraj, Bhanwar Lal, Dwarka Lal, Jagdish Prasad, Pooran Mal for
the offences under Sections 148, 302/149 and 379 IPC and acquitted rest of the
accused by giving them benefit of doubt. The Learned Trial Court imposed
punishment for life so far as the convicted accused are concerned.

3.4 Feeling aggrieved and dissatisfied with the Judgment and Order dated 11.05.2012 passed by the Learned Trial Court, the convicted accused preferred
appeal before the High Court. Against the order of acquittal of some of the
accused, the State also preferred an appeal before the High Court. By the
impugned Judgment and Order, the High Court has acquitted Original Accused No.
3 – Bhanwar Lal by giving him benefit of doubt, not believing the deposition of
very PW2 and PW3. However, at the same time, relying upon the deposition of PW2
and PW3, the High Court has confirmed the conviction of the appellants herein –
Jodhraj and Jagdish Prasad – original Accused Nos. 1 and 12.

3.5 Being aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court confirming their conviction, original Accused
Nos. 1 and 12 – Jodhraj and Jagdish Prasad have preferred the present Appeal.
Against the order of acquittal passed by the High Court acquitting the accused
Bhanwar Lal, the State has also preferred the appeal. Both the appeals are
heard together.

4. Learned Counsel appearing on behalf of the appellants – convicts Jodhraj and Jagdish Prasad has vehemently submitted that in the facts and
circumstances of the case, the High Court has materially erred in confirming
the conviction of the appellants.

4.1 It is vehemently submitted by the Learned Counsel appearing for the appellantsconvicts that the High Court has confirmed the conviction of the
appellants solely relying upon the deposition of PW2 and PW3. It is submitted
that the statements of PW2 and PW3 under Section 161 of the Cr.P.C. were
recorded after 18 days. The statements made by PW2 and PW3 were in
exaggeration. It is submitted that the grounds on which Bhanwar Lal and others
came to be acquitted, namely, not believing the deposition of PW2 and PW3, the
same shall be applicable to the appellants also. It is submitted that therefore
no reliance can be placed upon the deposition of PW2 and PW3 so far as the
appellants/accused are concerned. It is submitted that except the deposition of
PW2 and PW3, the High Court has not relied upon and/or considered any other
evidence.

5. Learned Counsel appearing on behalf of the State has vehemently submitted that even the High Court has committed a grave error in acquitting
Bhanwar Lal.

5.1 It is submitted by the Learned Counsel appearing on behalf
of the State that Injury No.3 was attributed to Accused – Jagdish Prasad which
proved to be fatal. It is submitted that prior incident has been proved from
the deposition of PW2 – Om Prakash. It is further submitted that PW2 in his
deposition viz. the eyewitness of the occurrence has specifically attributed
Injury No. 3 to Jagdish rasad. It is submitted that to that extent the
deposition of PW 2 is reliable and believable and therefore the Trial Court as
well as the High Court have rightly convicted Jagdish Prasad. It is submitted that
even another Accused – Jodhraj has also participated in the incident and Injury
No.2 was attributed to him and therefore he has been rightly convicted by the
Learned Trial Court and confirmed by the High Court.

6. Learned Counsel appearing on behalf of the acquitted accused – Bhanwar Lal has supported the impugned Judgment and Order passed by the High
Court acquitting Bhanwar Lal. It is submitted that cogent reasons have been
given by the High Court while acquitting Bhanwar Lal and, therefore, the acquittal
of Bhanwar Lal is not required to be interfered with.

7. Heard the Learned Counsel for the respective parties at
length. We have gone through the entire evidence on record and the Judgment and
Order passed by the Learned Trial Court as well as the impugned Judgment and
Order passed by the High Court. At the outset, it is required to be noted that
the Learned Trial Court convicted five accused out of 14 accused who came to be
tried for the offences under Sections 148, 302/149, 379 of the IPC.

The prosecution heavily relied upon the deposition of PW2 and
PW3 who claimed to be the eyewitnesses. The prosecution also relied upon the
socalled dying declaration; however, the dying declaration has not been
believed. In an appeal, the High Court has further acquitted another Accused
Bhanwar Lal on the ground that the statement of PW2 Om Prakash and the
statement of PW3 Ram Dayal under Section 161 of the Cr.P.C. were recorded after
a period of 18 days and that the statement of Ram Dayal was exaggerated and
more and more persons of the family were tried to be implicated. Therefore, the
High Court was of the opinion that recording the statement under Section 161
Cr.P.C. of Om Prakash PW2 and Ram Dayal PW3, leaves no doubt that both the
witnesses took benefit of delay and for the three injuries on the person of the
deceased Hariram, out of which one was abrasion, the witnesses have resorted to
implicate 14 accused.

Thus, the blemish on the part of the witnesses, calls upon us to
sift grain from the chaff. Thus, the High Court did not accept the deposition
of PW2 and PW3 so far as the accused Bhanwar Lal is concerned. However, at the same time, relying upon the statement of very two witnesses PW2 and PW3, the High Court has confirmed the conviction of the Appellants – Jodhraj
and Jagdish Prasad. Therefore, considering the facts and circumstances of the
case, we are of the opinion that if the deposition of PW2 and PW3 are not
reliable qua one of the accused on the grounds stated hereinabove and one of
the accused came to be acquitted by giving benefit of doubt, the same benefit ought
to have been given to the other accused also, unless there is some further
material/evidence against the other accused.

As observed hereinabove, except relying upon the deposition of
PW2 and PW3, there is no other evidence implicating the appellants Accused convicts.
Under the circumstances, in the absence of any further evidence implicating the
accusedconvicts, the High Court has materially erred in confirming the
conviction of the appellant solely relying upon the deposition of PW2 and PW3 whose deposition
has been doubted by the High Court and not relied upon by the High Court so far
as one of the accused is concerned, the same reasoning should be applied in the
appellants case also which weighed with the High Court while acquitting Bhanwar
Lal. So far as the acquittal of Bhanwar Lal is concerned, we are in complete agreement
with the view taken by the High Court. Cogent reasons have been given by the High Court for not believing the
deposition of PW2 and PW3.

8. In view of the reasons stated hereinabove, the appeal
preferred by accused Jodhraj and Jagdish Prasad is hereby allowed. The impugned
Judgment and Order passed by the High Court and the Judgment and Order passed
by the Trial Court convicting them for the offences under Sections 302/149 IPC
are hereby quashed and set aside and both of them are acquitted for the offences for
which they were tried, by giving them benefit of doubt. The accused be set at
free forthwith, if not required in any other case. The appeal preferred by the
State challenging the impugned Judgment and Order passed by the High Court
acquitting the accused – Bhanwar Lal is hereby dismissed.

…………………………..J. (ASHOK BHUSHAN)

…………………………..J. (M. R. SHAH)

New Delhi,

November29,2019

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