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Rupesh @ Pintu And Ors vs State on 31 July, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 79/2014
1. Rupesh @ Pintu S/o Shri Rajkumar, by caste Rajput, R/o
Village Jingana P.S. Jyoti, District Menpuri (U.P.), at present
Ward No.14, Purani Abadi, Near Sukhwant Place, Sri
Ganganagar.
2. Manoj Kumar s/o Om Prakash, by caste Jat, R/o Ward No.4,
Opp. Chota Hanuman Mandir, Purani Abadi, Sri Ganganagar.
3. Gourav Kumar @ Goriya s/o Premchand, By caste Soni, R/o
Ward No.14, Purani Abadi, Sri Ganganagar.
(Presently lodged in Central Jail, Bikaner)

versus

The State of Rajasthan
__
For Appellant(s) : Mr. R.R.Vyas for accused Rupesh @ Pintu
Mr.Mahesh Bora, Sr.Advocate with Mr.Arun
Kumar for accused Manoj Kumar and Gourav
Kumar.
For Respondent(s) : Mr. JPS Choudhary, Public Prosecutor
__
HON’BLE MR. JUSTICE SANGEET LODHA

HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment
Per Hon’ble Mr.Sangeet Lodha,J.

31st July, 2018

1. This appeal is directed against judgment dated 10.1.14 of

the Additional Sessions Judge No.2, Sri Ganganagar, whereby the

appellants Rupesh @ Pintu, Manoj Kumar and Gourav Kumar @

Goriya, were convicted and sentenced as under:-

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U/s. 302/34 IPC

Each to suffer life imprisonment and fine of Rs. 10,000/-, in
default, to further suffer one year rigorous imprisonment.

U/s. 325/34 IPC
Each to suffer two years’ rigorous imprisonment with fine
Rs. 2,000, in default, to further suffer six months’ rigorous
imprisonment.

U/s. 323/34 IPC

Each to suffer six months’ rigorous imprisonment with fine
Rs. 500, in default, to further suffer one month’s rigorous
imprisonment.

U/s. 382/34 IPC

Each to suffer two years’ rigorous imprisonment with fine
Rs.2,000, in default, to further suffer six months rigorous
imprisonment.

U/s. 341 IPC

Each to suffer one months’ simple imprisonment with fine
Rs. 250, in default, to further suffer seven days simple
imprisonment.

The sentences have been directed to run concurrently.

2. The prosecution story in nutshell as set out in the written

report (Ex.P/3) submitted by complainant Satish Kumar before

the SHO, Police Station, Purani Abadi, Sri Ganganagar is that on

31.1.08 around 9:15 P.M. Kurban and Islam were coming on

Motorcycle from Tara Chand Vatika to Devnagar. In front of

Panchmukhi Hanuman Temple, Pintu, his brother Manish, Baljeet,

Manoj Jat, Goriya Soni, Ravi Nayak and 3-4 other persons stopped

them and started beating. Pintu was armed with knife, Manish and

Goriya were armed with swords and others were armed with
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Motorcycle chain, iron rod and stick etc. They all started

belabouring Kurban and Islam after stopping and besieging them.

At that moment, Rajkumar came at site then all of them left

Kurban and Islam and started beating Rajkumar after besieging

him. Pintu inflicted injuries on Rajkumar’s head and forehead with

knife. On getting opportunity, Kurban informed complainant Satish

on telephone. Thereafter, immediately Badelal and Harish etc.

reached at the site, when they raised hue and cry, all the accused

fled away leaving Rajkumar behind in pool of blood. On receiving

telephonic information, police also reached there and at the same

time, complainant Satish Kumar also reached the place of

occurrence. Then they took Rajkumar in police gypsy to hospital

where the doctors declared him brought dead. The accused

persons while leaving had taken with them Motorcycle bearing

No.RJ-13-SA-5513 Bajaj City Model 100, mobile phone with the

SIM therein bearing no.9351663020 and yet another mobile with

SIM No.9352191269. According to the complainant, Rajkumar

used to work as Informant with respect to selling of liquor by Pintu

etc. and therefore, due to animosity, accused persons in

furtherance of common intention, armed with weapons killed

Rajkumar by inflicting injuries on him and also inflicted injuries on

Islam and Kurban by stopping them.

3. On the basis of the written report (Ex.P/3) submitted by the

complainant P.W.4-Satish Kumar, the police registered FIR bearing

No.28/10 (Ex.P/47) and investigation commenced.

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4. During the investigation, after inquest proceedings, the dead

body of Rajkumar was subjected to autopsy, necessary memos

were drawn and the statements of witnesses were recorded under

Section 161 Cr.P.C. The accused persons were arrested. At the

instance of the accused Rupesh @ Pintu, Bajaj Motorcycle, blood

stained jacket and gloves were recovered, at the instance of

accused Baljeet Singh, blood stained sweater, at the instance of

Manoj Kumar, Honda Motorcycle were recovered. The blood

stained articles recovered were sent for examination to the

Forensic Science Laboratory and FSL report (Ex.P/60) was

obtained. The hair of the deceased and blood stained brick with

hair were sent to FSL for Morphological and Microscopic

Examination and the report (Ex.P/61) was obtained.

5. After completion of the investigation, the police filed charge

sheet against the appellants for offences under Sections 302-341-

323-325-382/34 IPC against the accused Rupesh @ Pintu, Baljeet

Singh, Manoj Kumar and Gourav Kumar @ Goriya before the

Judicial Magistrate No.1, Sri Ganganagar. The matter was

committed to the Sessions Judge, Sri Ganganagar, which was later

transferred to Additional Sessions Judge No.1, Sri Ganganagar for

trial. The learned trial Judge framed the charges against the

accused Rupesh @ Pintu, Baljeet, Gourav and Manoj for offences

under Sections 341, 323, 325/34, 382, 302/34 IPC. The accused

persons denied the charges and claimed trial. After examination of

few witness, the matter was transferred for further trial to

Additional Sessions Judge No.2, Sri Ganganagar. During the trial,
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accused Baljeet absconded and therefore, proceedings were

initiated against him under Sections 82-83 Cr.P.C and standing

warrant was issued for his arrest.

6. The prosecution in support of its case examined as many as

15 witnesses (PW 1 to PW 15/15A) and produced the

documentary evidence Ex.P/1 to Ex. P/62. The appellants in their

defence did not produce any witness, however, on their behalf the

documentary evidence was exhibited as Ex.D/1 to Ex.D/4. The

statements of the appellants Rupesh @ Pintu, Manoj Kumar and

Gourav Kumar were recorded under Section 313 Cr.P.C. wherein

they denied their involvement in the commission of the offences

and stated that they have been falsely implicated in the case.

7. It is relevant to mention here that after conclusion of the

prosecution evidence, on the application preferred by the

prosecution under Section 319 Cr.P.C. vide order dated 22.11.12

passed by the trial Judge, the cognizance was taken for

commission of offences under Sections 341, 323, 302, 382, 325,

147, 149 IPC against the accused Ravi Nayak and Manish as well.

Aggrieved by the said order, accused Manish and Ravi Nayak

preferred S.B.Criminal Revision Petition No.1053/12 before this

court. The proceeding as against accused Ravi Nayak and Manish

pursuant to order dated 22.11.12, was stayed. Later, vide order

dated 27.4.18 passed by learned Single Judge of this court in

S.B.Cri.Revision Petition No.1053/12, the order dated 22.11.12

passed by the learned trial Judge was set aside.

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8. After due consideration of the rival submission and the

evidence on record, the learned trial Judge convicted and

sentenced the appellants as indicated above. The trial against the

accused Baljeet, who was absconding and the accused Ravi Nayak

and Manish pursuant to the order passed by this court, were kept

pending.

9. We have heard the learned counsel for the appellants and

learned Public Prosecutor and carefully scanned the evidence

adduced at the trial.

10. Learned counsel Mr. R.R.Vyas appearing on behalf of the

appellant Rupesh @ Pintu submitted that the learned trial Judge

has not appreciated the evidence on record in correct perspective

which has resulted in erroneous findings being arrived at. Learned

counsel submitted that the prosecution has come with wholly

concocted and false story. None of the eye witnesses were as a

matter of fact present at the place of incident and they have been

planted just to falsely implicate the accused persons. Learned

counsel submitted that essentially the conviction of the appellant

is based on testimony of alleged eye witness P.W.3-Islam. It is

submitted that P.W.2-Kurban and P.W.3-Islam were chance

witnesses. P.W.2-Kurban turned hostile and did not support the

prosecution case and completely denied to have witnessed

occurrence alongwith P.W.3-Islam. Drawing the attention of the

court to the contradictions in deposition of P.W.3-Islam with his

statement recorded under Section 161 Cr.P.C. (Ex.D/1), learned

counsel submitted that he has improved his original version and
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has come out with altogether a different story before the court

and therefore, his testimony even otherwise cannot be relied

upon. In support of the contention, learned counsel has relied

upon a decision of the Hon’ble Supreme Court in “Baby alias

Sebastian and another vs. Circle Inspector of Police, Adimaly”, AIR

2016 SC 3671. Learned counsel submitted that as per P.W.3-

Islam, Pintu and Ravi Nayak inflicted injuries on the head of the

deceased Rajkumar by sword, knife and sticks and thereafter by

brick. Drawing the attention of the court to the post mortem

report(Ex.P/10), learned counsel submitted that none of the

injuries found on the person of the deceased could have been

caused by sharp edged weapon which stands fortified from the

deposition of P.W.5-Dr. B.M.Sharma, who has categorically

deposed that there was no injury on the person of the deceased

caused by sharp edged weapon. Further, P.W.3-Islam in his

examination-in-chief deposed that P.W.4-Satish, P.W.7-Harish,

P.W.15-Amrit Lal @ Badelal also reached the scene of occurrence

and on their raising hue and cry, the accused persons who were

beating Rajkumar fled away whereas, in the cross examination, he

deposed that within 10 minutes of the incident, the police reached

the scene of occurrence and thereafter, P.W.4-Satish, P.W.7-Harish

and P.W.15-Amrit Lal @ Badelal also reached the scene of

occurrence and thus, the question of P.W.4-Satish, P.W.7-Harish

and P.W.15-Amrit Lal witnessing the incident, does not arise

inasmuch as, as per deposition of the said witness, immediately

after reaching the place of occurrence, the police had taken away
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injured Rajkumar to the hospital. Learned counsel would submit

as a matter of fact even P.W.3-Islam has also not witnessed the

incident rather he has been planted as eye witness by the

prosecution. Learned counsel submitted that as per deposition of

eye witness, the incident occurred at 9:15 P.M. and the police

reached the place of occurrence at 10:30 P.M. then, why the

injured was not taken to the hospital immediately by the alleged

eye witnesses including the eye witnesses P.W. 4-Satish and

P.W.15-Amrit Lal @ Badelal, the brothers of the deceased

Rajkumar and thus, the unnatural conduct of the alleged eye

witnesses is indicative of the fact that they were not present at

the time of occurrence. Learned counsel submitted that the

prosecution has concealed the genesis of the incident, which

indicates that the entire prosecution story is concocted and false.

Learned counsel submitted that the recovery of the blood stained

jacket and gloves at the instance of the appellant Rupesh which

according to the FSL report (Ex.P/60) contain blood of group ‘A’

also does not connect him to the commission of the offence

inasmuch as, neither the blood group of the deceased nor the

blood group of the appellant was determined. That apart, the

attention of the appellant Rupesh was not drawn to the contents

of the FSL report while recording his statement under Section 313

Cr.P.C. and therefore, the same is not opened to be relied upon.

Learned counsel submitted that the accused were not previously

known to the alleged eye witness P.W.3-Islam and as per his

deposition, he had seen them only at the time of occurrence yet
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no test identification parade was conducted and therefore, the

witness identifying the appellant first time in the court after a

lapse of more than a year after incident is of no evidentiary value.

In support of the contentions, learned counsel has relied upon a

decision of Hon’ble Supreme Court in “Prakash vs. State of

Karnataka”, (2014) 12 SCC 133.

11. Mr. Mahesh Bora, Senior Advocate, appearing on behalf of

the appellants Manoj and Gourav, submitted that the prosecution

case rests on testimony of eye witnesses PW-1 Sumer Singh, PW-

2 Kurban, PW-3 Islam, PW-4 Satish, PW-7 Harish Shukla and PW-

15 Amritlal @ Badelal. Out of these eye witnesses, PW-1 Sumer

and PW-2 Kurban have turned hostile and not supported the

prosecution story. The deposition of remaining eye witnesses PW-3

Islam, PW-4 Satish, PW-7 Harish Shukla and PW-15 Amritlal @

Badelal, suffers from self contradictions and contradictions with

each other, which clearly indicates that these persons who have

been projected as eye witnesses were not present at the scene of

occurrence.

Drawing the attention of the Court to the written report

(Ex.P/3) submitted by PW-4 Satish Kumar on 31.1.08 at 11:30 PM

i.e. after about 2 hours of the occurrence, learned counsel

submitted that according to the complainant, at the first instance,

accused persons Pintu, Manish, Baljeet, Manoj Jat, Goriya Soni,

Ravi Nayak and 3-4 others stopped Kurban and Islam who were

coming on motorcycle from Tarachand Vatika to Devnagar and

started beating them. Pintu was armed with knife, Manish and
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Goriya with swords and others were having motorcycle chain, iron

rod and sticks in their hand. While, Kurban and Islam were being

beaten, Rajkumar reached at the place of the occurrence, then

accused persons left Kurban and Islam and while besieging

Rajkumar started belabouring him. It is alleged that Pintu inflicted

knife blow on the head of the deceased. Taking the opportunity,

Kurban informed Satish on telephone. At that time, Badelal and

Harish reached there, and on their raising hue and cry, the

accused fled away leaving behind Rajkumar in the pool of blood.

According to the complainant, he and the police reached the place

of occurrence at that time.

Learned counsel submitted that the police did not record the

statements of alleged eye witnesses immediately and it is only

after the postmortem of the deceased on 1.2.08 at 10:15 AM

when it was revealed that deceased had suffered no injury caused

by sharp edged weapon, the story was improved and the accused

causing the injuries to the deceased by bricks was introduced.

Learned counsel would submit that this fact of improvement at the

belated stage by itself indicates that none of the witness who are

projected as eye witnesses were as a matter of fact have

witnessed the incident.

Drawing the attention of the Court to the statement of PW-3

Islam, learned counsel submitted that in his statement under

Section 161 Cr.P.C., the witness had taken the stand that he and

Kurban were stopped by Baljeet, Baljeet informed Pintu on

telephone and thereafter Manoj, Goriya Soni, Pintu, Ravi Nayak
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and Manish reached there and they started beating them. Baljeet

and Pintu were having knife in their hands, in a short while,

Rajkumar reached there on motorcycle and accused persons left

them and started beating Rajkumar. However, the said witness

contrary to the narration in the written report Ex.P/3 regarding the

injuries caused to Rajkumar, assigned to the accused Rupesh @

Pintu by knife, stated that Rupesh inflicted injury by brick on the

head of Rajkumar.

Learned counsel submitted that contrary to the statement

under Section 161 Cr.P.C., PW-3 Islam in his deposition before the

Court has come up with the altogether new story stating that

when he and Kurban were coming on motorcycle near Tarachand

Vatika, they saw Baljeet, Pintu, Goriya, Manish etc. there and out

of them, Manish and Pintu while stopping them inquired about

Rajkumar and on their not disclosing the whereabouts of

Rajkumar, they started beating them and in the meantime, when

Rajkumar reached there, they announced that their real enemy

has come, he should be killed. Further, contrary to the statement

recorded under Section 161 Cr.P.C., the said witness deposed that

Pintu and Ravi Nayak inflicted blows on the back of the head of

the deceased by sticks, swords and knife and thereafter by bricks.

In examination-in-chief, the said witness deposed that Badelal,

Harish and Satish reached the place of occurrence and on their

shouting, the accused persons fled away. The police also reached

at the place of occurrence and Rajkumar was taken to the hospital

in police Gypsy. But in cross-examination, he deposed that in the
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first instance, within 10 minutes of the incident, police reached the

place of occurrence and thereafter, PW-4 Satish Kumar, PW-15

Badelal and PW-7 Harish also reached there. At the same time, he

deposed that the police did not stay at the place of occurrence and

Rajkumar was immediately taken to the hospital by the police in

the Gypsy. He further deposed that he met PW-4 Satish at the

place of occurrence who had reached there just after PW-15

Badelal and PW-7 Harish reached there. As per the Rojnamcha

(Ex.P/55A) on receiving information on telephone at 10:15 PM,

the police proceeded to the place of occurrence, but surprisingly,

as per PW-3 Islam, after police taking the injured Rajkumar to the

hospital in Gypsy as aforesaid, he along with PW-4 Satish, PW-15

Badelal and PW-7 Harish reached the hospital around 9:00-9:15-

9:30 PM. He deposed that on the next day, he had given report to

the police which was written by the police and he was made to

sign the same. He deposed that they did not intervene to rescue

Rajkumar, they had reached there later. He deposed that he was

given fists and sticks blows. At the same time, he accepted the

suggestion of the defense that when Rajkumar was being beaten,

he was not at the place of occurrence, rather was standing in the

side. As per the said witness, a crowd of 20 to 25 persons was

there, but the prosecution produced none of them for examination

as independent eye witness. Learned counsel submitted that as

per the deposition of the said witness, he had never met any of

the accused persons prior to the date of occurrence and therafter

he had seen them only on the day he appeared before the Court
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for examination. Thus, on the facts and in the circumstances of

the case, it was absolutely necessary to conduct identification

parade, but the prosecution did not resort to it and thus the

identification of the accused persons by the said witness has no

evidentiary value. Learned counsel submitted that looking to the

bundle of contradictions and embellishments in the deposition of

PW-3 Islam, his testimony as eye witness of the incident deserves

to be discarded as wholly unreliable.

Learned counsel submitted that as per deposition of PW-4

Satish Kumar, he reached at the place of occurrence on receiving a

telephonic message that his brother Rajkumar Gupta is being

belaboured near Tarachand Vatika. As soon as, he reached there,

Badelal and Harish also reached there. He saw that Pintu, Manish,

Goriya, Manoj Jat, Ravi Nayak, Baljeet and 3-4 other persons were

belabouring Rajkumar and out of them Pintu was having knife,

Manish and Goriya were armed with sword, Manoj Jat, Ravi Nayak

and Baljeet were having iron rod, stick and motorcycle chain

respectively. At the same time, he deposed that the accused

persons hit his brother by bricks. Learned counsel submitted that

the said witness, in his written report Ex.P/3 submitted to the

police just after 2 hours of the incident, has specifically assigned

only knife injury caused on the head of the deceased to accused

Pintu and no injury is specifically assigned to anybody else.

Learned counsel submitted that since after postmortem, no injury

was found on the person of the deceased caused by sharp

weapon, the story of the injury being caused by bricks was
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introduced. The said witness alleged to have reached the place of

occurrence on receiving the telephonic call, obviously, received

after the commencement of the incident and admittedly as per his

own deposition, from a place about 550 meters away from the

place of occurrence and thus, the question of his being present at

the time of occurrence of the incident cannot be believed. Learned

counsel would reiterate that the factum of PW-4 Satish Kumar

being not the eye witness of the incident stands further fortified

from the deposition of PW-3 Islam. Drawing the attention of the

Court to the cross-examination of the said witness, learned

counsel submitted that even PW-3 Islam, was employed with

Rajkumar and therefore, he is also an interested witness. Contrary

to the deposition of PW-3 Islam, as per PW-4 Satish Kumar, he,

Badelal and Harish had reached at the place of occurrence before

the police reached there, however, they did not talk with the police

personnels regarding the incident as also about who caused

injuries to Rajkumar. According to the said witness, he and Harish

put Rajkumar in the Jeep and on that account their clothes also

got blood stained. However, the prosecution did not care to seize

their blood stained clothes. According to the learned counsel, a

bare perusal of the deposition of PW-4 Satish Kumar makes it

abundantly clear that he was not the eye witness of the incident

and while deposing before the court, indulged in sheer falsehood

and thus, not being truthful witness, his testimony also deserves

to be discarded.

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Regarding P.W.7-Harish Shukla, learned counsel submitted

that according to the said witness, he reached the place of

occurrence a few minutes after 9:15 P.M. and the police had

reached there around 9:30 whereas, as per the evidence already

discussed, the police had reached the place of occurrence around

10:30 P.M. and thus, apparently, the said witness is also a planted

witness. According to the learned counsel the conduct of the said

witness in not taking injured Rajkumar to the hospital immediately

and waiting till the police reached the place of occurrence around

10:30 P.M. also indicates that he was not eye witness to the

incident. Learned counsel submitted that for parity of reasons,

P.W.15-Amrit Lal @ Badelal, who was accompanied by P.W.7-

Harish, alleged to have reached the place of occurrence on

Motorcycle, is also a planted witness.

Learned counsel submitted that no recoveries were made

from the appellant Manoj and Goriya and no specific overt act is

assigned to them and thus, they have been falsely implicated in

the case. Learned counsel submitted that accused Ravi Nayak and

Manish, who were not charge sheeted by the police and against

whom the cognizance was taken by the learned Judge after

conclusion of the prosecution evidence vide order dated 22.11.12

stands discharged inasmuch as, the order taking cognizance

against them stands set aside by learned Single Judge of this

court vide order dated 27.4.18 passed in S.B.Criminal Revision

Petition No.1053/12. Drawing the attention of the court to the said

decision, learned counsel submitted that while setting aside the
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order taking cognizance against the accused Ravi Nayak and

Manish at the belated stage, the court has also discussed the

evidence on record and categorically observed that there existed

grave discrepancies in the statements of the so called eye

witnesses regarding the participation of the said accused persons

in the incident. Learned counsel would submit that since the

accused Ravi Nayak against whom the specific role is assigned by

the alleged eye witnesses having been left out from being tried

and stands discharged, the appellants cannot be convicted of the

offences charged on the basis of the same evidence.

12. On the other hand, Mr. J.P.S. Choudhary, learned Public

Prosecutor submitted that though the eye witnesses P.W.1-Sumer

Singh and P.W.2-Kurban have turned hostile, the guilt of the

appellants stands established on the basis of the deposition of

P.W.3-Islam, P.W.4-Satish Kumar, P.W.7-Harish Shukla and P.W.15-

Amrit Lal @ Badelal. Learned Public Prosecutor submitted that

P.W.3-Islam cannot be said to be chance witness inasmuch as,

being resident of the area within one kilometer, his presence at

the place of occurrence was natural. It is submitted that nothing

turns on the question that no injury was found on the person of

the deceased caused by sharp edged weapon inasmuch as, the

eye witnesses have categorically deposed that the injuries were

inflicted on the person of the deceased by bricks. Drawing our

attention to the FSL report (Ex.P/60), learned Public Prosecutor

submitted that the gloves and jacket recovered at the instance of

appellant Rupesh @ Pintu were found stained with the blood of
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group ‘A’ i.e. the group of the deceased. It is contended that

failure to draw the attention of accused to contents of FSL does

not vitiate the judgment of conviction as the accused was not

prejudiced thereby. In support of the contention, learned Public

Prosecutor relied upon a decision of the Hon’ble Supreme Court in

the matter of “Yuvaraj Ambar Mohite vs. State of Maharashtra”,

(2006) 12 SCC 512. Lastly, learned Public Prosecutor submitted

that the discrepancies and contractions in the statement of eye

witnesses would always be there and since the contradictions

pointed out are not on material points, the testimony of the eye

witnesses cannot be discarded.

13. We have considered the rival submissions and thoroughly

examined the evidence on record.

14. The autopsy of the dead body of Rajkumar was conducted by

P.W.5-Dr. B.M. Sharma. As per the post report (Ex.P/10), following

ante mortem injuries were found on the person of the deceased

Rajkumar:-

1. Lacerated wound 1 ½’ x 1/4′ x Forehead with Bone
fracture.

2. Lacerated wound 3 ½’ x 1/2′ x left parietal with bone
fracture.

3. Lacerated wound 2′ x ½’ x occipital with bone fracture
above Nap of Neck.

4. Lacerated wound 3′ x ½’ R parietal with bone fracture.

5. Lacerated wound 1′ x 1/6′ nose with fracture.

6. Lacerated wound 1/6′ x cartilage Left Ear pinna.

7. Abrasion 1′ x 1/2′ left forearm.

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Cause of death of Rajkumar was found to be head injuries

no.1 to 4 above, which were opined to be sufficient to cause

death.

The injuries caused and cause of death as disclosed in the

post mortem report stands confirmed by deposition of P.W.5-Dr.

B.M. Sharma. Thus, on the basis of the medical evidence on

record, it is established beyond doubt that the death of deceased

Rajkumar was homicidal in nature.

15. Indubitably, the prosecution case is founded on testimony of

eye witnesses P.W.1-Sumer Singh, P.W.2-Kurban, P.W.3-Islam,

P.W.4-Satish Kumar, P.W.7-Harish Shukla and P.W.15/15A-Amrit

Lal @ Badelal. Out of these witnesses, P.W.4-Satish Kumar and

P.W.15/15A-Amrit Lal @ Badelal were thickly related to the

deceased Rajkumar being his real brothers. P.W.7-Harish Kumar

was neighbour of the deceased Rajkumar. P.W.2-Kurban and

P.W.3-Islam were employed with Rajkumar and used to supply his

goods in the market.

16. P.W.1-Sumer Singh and P.W.2-Kurban turned hostile and did

not support the prosecution story.

17. P.W.1-Sumer Singh denied the occurrence of the incident in

his presence. He denied to have suffered the injuries while

intervening to rescue the deceased Rajkumar and stated that he

had suffered injuries on account of felling from Motorcycle.

18. P.W.2-Kurban admitted the fact that eleven months back in

the night, he was passing through the market on Motorcycle

alongwith Islam, however, he denied that he and Islam were
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belaboured by the accused persons. The factum of accused

persons belabouring Rajkumar was also denied by him. He also

denied to have telephoned to P.W.4-Satish Kumar.

19. P.W.3-Islam deposed that on fateful day, he and P.W.2-

Kurban were coming on Motorcycle from Devnagar. When they

reached near Tarachand Vatika, Baljeet, Pintu, Goriya, Manish etc.

met them. Manish and Pintu stopped them and inquired about

Rajkumar. On their not disclosing the whereabouts of Rajkumar,

they started beating them. In the meantime, Rajkumar reached

there then all of them started belabouring Rajkumar. Goriya,

Sonu, Pintu announced that their real enemy has come, he should

be killed. Pintu and Ravi Nayak inflicted injuries on the head of

Rajkumar by sticks, swords and knife and thereafter, by bricks.

Besides the said accused persons, there were 3-4 more persons

involved in beating. After belabouring deceased Rajkumar, Pintu

and Manish fled away while taking Motorcycle and mobile of

deceased Rajkumar with them. Badelal, Harish and Satish also

reached on the spot. On their raising hue and cry, accused persons

fled away. Then Rajkumar was taken to the hospital in police

gypsy. Rajkumar was killed by the accused persons as he was

informer of sale of liquor by the accused persons.

In cross examination, he deposed that Baljeet and other

accused persons after beating them, inflicted injuries to Rajkumar

by sword, knife and brickbats. The police had reached the place of

occurrence after ten minutes of the incident. After the police,

Satish Kumar, Badelal and Harish also reached there. The police
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did not stay there and immediately took away the injured

Rajkumar to the hospital. He, Satish, Badelal and Harish went

hospital together and reached there around 9-9:15-9:30 P.M. He

deposed that next day he had gone to police and submitted the

report of the incident. The report was written by the police and he

had put his signature thereon. He deposed that he was not beaten

by knife and sword rather, he was given blow by fists and sticks.

He further deposed that they did not intervene to rescue

Rajkumar, they had reached there later, they were given beating

on account of Rajkumar. He admitted that he is facing trial in the

cases relating to illicit liquor as also for offence under Section 377

IPC.

It is pertinent to note that as per written report (Ex.P/3)

submitted by the complainant P.W.4-Satish Kumar on 31.1.08 at

11:30 P.M. i.e. about two hours after the occurrence, obviously

after the complainant P.W.4-Satish Kumar being apprised by

P.W.2-Kurban and P.W.3-Islam about the manner in which the

incident occurred, the weapons used by the accused persons while

belabouring Rajkumar which includes knife and swords. The

injuries on the head and forehead of the deceased were alleged

to have been caused by Rupesh @ Pintu by knife. There was no

reference of accused persons hitting the deceased by brickbats.

The autopsy of the dead body of the deceased was

conducted by P.W.5-Dr. B.M. Sharma on 1.2.08 at 10:15 A.M. As

per the post mortem report (Ex.P/10), out of seven injuries

caused to the deceased, six were found to be lacerated wounds
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and one abrasion. No injury on the person of the deceased was

found to be caused by sharp edged weapon.

The statement of P.W.3-Islam under Section 161 Cr.P.C. was

recorded by the police on 2.2.08 wherein he while maintaining

that Baljeet and Rupesh @ Pintu were having knife in their hands,

stated that Rupesh hit Rajkumar on the head by brick lying there.

Contrary to the narration in the written report (Ex.P/3) that Pintu,

Manish, Baljeet, Manoj Jat, Goriya Soni, Ravi Nayak and 3-4

others stopped P.W.2-Kurban and P.W.3-Islam, in his police

statement (Ex.D/1) P.W.3-Islam had taken the stand that he and

P.W.2-Kurban was stopped by Baljeet, who informed Pintu on

telephone and thereafter, Manoj, Goriya Soni, Pintu, Ravi Nayak

and Manish reached there and they started beating them. The

factum of accused persons inquiring about Rajkumar is also

missing in the said statement (Ex.D/1) rather, he stated that as

soon as Rajkumar reached there, the accused persons left them

and started beating Rajkumar. On being confronted with the

statement (Ex.D/1), in cross examination, P.W.3-Islam responded

that the facts regarding Pintu and Ravi Nayak causing injuries on

the head of Rajkumar by sticks, swords and knife was revealed by

him to the police and he does not know as to why the same was

not recorded by the police. Similar was his stand regarding other

contradictions pointed out in his deposition with his police

statement (Ex.D/1) noticed hereinabove.

As noticed above, in his deposition before the court P.W.3-

Islam categorically deposed that Pintu and Ravi Nayak caused
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injuries on the back of the head of deceased by sticks, swords and

knife and after that by bricks whereas, as per the post mortem

report (Ex.P/10), no injury caused by sharp edged weapon was

found on the person of the deceased and only three injuries i.e.

lacerated wounds were found on the occipital and parietal region

of the head of the deceased. Thus, the deposition of P.W.3-Islam

regarding the injury caused to the deceased by the accused

persons does not corroborate with the medical evidence on record.

The improvement in the statement as aforesaid appears to have

been made keeping in view the post mortem report (Ex.P/10)

wherein no injury caused by sharp edged weapon was found on

the person of the deceased.

The incident is alleged to have occurred around 9:15 P.M. As

per deposition of P.W.3-Islam the police reached on the spot within

10 minutes of occurrence and thereafter, P.W.4-Satish Kumar,

P.W.7-Harish and P.W.15/15A-Badelal also reached there. The

police had immediately taken Rajkumar to the hospital. He further

deposed that he alongwith Satish, Badelal and Harish had reached

the hospital around 9-9:15-9:30 P.M. whereas, as per Roznamcha

(Ex.P/55A), on the information being received from unknown

person on telephone, the police proceeded to the place of

occurrence at 10:15 P.M.

As noticed above, P.W.3-Islam has attempted to show his

presence at the scene of occurrence at the time when Rajkumar

was being belaboured by the accused persons. But at the same

time, he deposed that they did not intervene to rescue Rajkumar,
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they had come there later on. He accepted the suggestion of the

defence that at the time of injuries being inflicted, he was not on

the spot rather, he was standing by side near generator lying in

front of Hanuman Temple and he had witnessed the incident from

there. It is pertinent to note that Panchmukha Hanuman Temple is

shown in the site plan (Ex.P/4) from the place of occurrence

marked as ‘x’ at the distance of 40 ft. If P.W.3-Islam had at all

witnessed the incident, it remains a debatable question as to

whether he could have identified the accused persons who were

not known to him from a distance of 40 feet. It has come on

record that the deceased Rajkumar was besieged by the accused

persons who were as per deposition of the eye witness were 7-8

persons and thus, in these circumstances, it also becomes

doubtful that the said witness was in position to distinctly indicate

the overt acts on the part of the accused persons in belabouring

the deceased, from a distance of 40 ft.

Thus, having regard to the apparent contradictions,

discrepancies and embellishments in the deposition of P.W.3-

Islam, in our considered opinion, he cannot be accepted to be a

truthful and wholly reliable witness.

20. P.W.4-Satish Kumar, the brother of the deceased Rajkumar,

who had submitted the written report (Ex.P/3), deposed that

around 9:15 P.M., he received a telephonic message while he was

at home that his brother Rajkumar is being belaboured.

Thereupon, he reached near Tarachand Vatika, Panchmukhi

Hanuman Temple and as soon as he reached there, P.W.15/15A-

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Badelal and P.W.7-Harish also reached there. He saw that his

brother Rajkumar was being belaboured by Pintu, Manish, Goriya,

Manoj Jat, Ravi Nayak, Baljeet and 3-4 other persons. Pintu was

armed with knife, Manish and Goriya with swords, Manoj Jat with

rod, Ravi Nayak with stick and Baljeet with Motorcycle chain. He

identified Pintu, Baljeet, Manoj Jat and Goriya Soni present in the

court and deposed that he knows other accused persons as well.

According to the said witness, Kurban and Islam were already

there and when Badelal and Harish raised hue and cry and

challenged the accused persons, they fled away towards Mahila

Park. While leaving the spot, they had taken away Rajkumar’s

Motorcycle and two mobiles. He deposed that the accused persons

had beaten his brother by bricks and while hitting the bricks, they

fled away towards Mahila Park. In the meantime, the police

reached at the place of occurrence, the injured Rajkumar was put

by both the brothers in the police gypsy and was taken to the

Government Hospital, where he was declared brought dead by the

doctors.

In cross examination, he stated that Harish Kumar resides at

Laluram Ki Dhani and he his brothers were residing at Devnagar,

which are the places 500 meter and 550 meter respectively away

from the place of occurrence. He deposed that the person who

conveyed the message on mobile phone was not known to him

and he had not saved his number. He deposed that a criminal case

for offence under Section 307 IPC for attempting to cause death of

Ravi Nayak was pending trial against him as also against his
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brother Badelal and deceased Rajkumar. He deposed that Ravi and

Manish are of the same group. That apart, he admitted that yet

another case for offences under Section 332, 353, 333 and 362

IPC for belabouring government servants on duty is pending trial

against him. He deposed that he had seen the accused persons

inflicting injuries on Rajkumar by knife and not by sword. Manish

and Goriya were having sword in their hands as also the bricks

and he had seen them hitting deceased by bricks.

The deposition of the said witness is apparently in

contradiction with the narration of the incident by him in the

written report (Ex.P/3). As noticed above, in the written report

(Ex.P/3), the allegation was that Pintu inflicted injuries on the

head and forehead of the deceased by knife, no specific injury was

assigned to any other co accused. There was no allegation of

accused persons inflicting injuries on the person of the deceased

Rajkumar by bricks. However, in the statement recorded under

Section 161 Cr.P.C. (Ex.D/2), while maintaining that Pintu inflicted

injury on the head and forehead of the deceased Rajkumar, it was

further added that on raising hue and cry by Badelal and Harish,

all the accused persons fled away after inflicting injuries on the

head of the deceased by bricks. When confronted with the

contradictions in deposition before the court, the written report

(Ex.P/3) and the statement under Section 161 Cr.P.C. (Ex.D/2),

the witness stated that he had narrated the incident as deposed

and why the police has not recorded the same, he does not know.

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As noticed above, none of the injuries found on the head of

the deceased was inflicted by knife and therefore, if the injuries

were inflicted by knife, which is not corroborated by medical

evidence, the question of accused persons inflicting further

injuries by bricks does not arise.

According to the said witness, he reached the place of

occurrence and immediately thereafter P.W.7-Harish and

P.W.15/15A-Amritlal @ Badelal arrived and soon thereafter, the

police reached the place of occurrence. But then, as per P.W.3-

Islam, who as per the prosecution was already present at the

place of occurrence even before the deceased Rajkumar arrived

there, has deposed that police reached the spot just 10 minutes

after the incident and thereafter P.W.4-Satish Kumar, P.W.15/15A-

Amritlal @ Badelal and P.W.7-Harish reached there. As per the

prosecution, the incident occurred around 9:15 P.M., obviously,

Satish Kumar was informed on telephone by somebody when the

accused persons started belabouring Rajkumar. The prosecution

set out the case that P.W.2-Kurban informed the P.W.4-Satish

Kumar on telephone about the incident but the said witness has

categorically denied to the fact that he was informed by P.W.2-

Kurban rather, he deposed that some unknown person had

conveyed him about the incident on telephone. In any case,

admittedly, Rajkumar was at home, which is 500 meter away from

the place of occurrence and therefore, he could not have reached

there immediately. Deceased Rajkumar had suffered only seven

injuries and thus, it is difficult to believe that P.W.4-Satish Kumar
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had reached the place of occurrence while the accused persons

were still belabouring Rajkumar. Further, if P.W.4-Satish Kumar

had reached after the police reached at the place of occurrence

then, obviously he did not reach the place of occurrence

immediately inasmuch as, as per Roznamcha (Ex.P/55A), the

police had proceeded to place of occurrence from the Police

Station, Purani Abadi, Sri Ganganagar on receiving the telephonic

message at 10:15 P.M. and as soon as the police personnel

reached there, they did not stay at the place of occurrence and

had immediately taken deceased Rajkumar to the hospital in

police gypsy. The fact which further stands affirmed by the

deposition of the Investigating Officer P.W.14-Gurbhupendra

Singh.

Thus, on the facts and circumstances of the case discussed

above, it is difficult to accept that P.W.4-Satish Kumar was the eye

witness of the incident and therefore, in the considered opinion of

this court, the deposition of P.W.4-Satish Kumar also cannot be

accepted to be truthful and wholly reliable.

21. As per P.W.7-Harish Shukla, he and P.W.15-Badelal met

Rajkumar around 9:15 P.M., who asked them whether they are

coming along to home, thereupon, they told him that they have

some work for 5-7 minutes and thereafter, they will come. Later,

when they were proceeding the house, they saw one person lying

on the ground, one or two persons were sitting on him and

remaining standing persons were belabouring him. On going near

to the person, they saw that the person lying on the ground was
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Rajkumar, the brother of Badelal. While alighting from the

Motorcycle they saw that Pintu, Baljeet, Manish, Ravi Nayak,

Goriya, Manoj Jat and one or two others were hitting on the head

of Rajkumar by bricks. On raising hue and cry by him and P.W.15-

Badelal, accused persons ran away towards the Mahila Park. He

deposed that the police had reached the place of occurrence 2 to 4

minutes after 9:30 P.M. He denied the knowledge if any injury was

caused by the accused persons on the person of the deceased by

knife, sword and sticks. On being asked about his not revealing

the factum of the injuries being caused by the accused persons to

the deceased by bricks in his police statement, he said that he had

revealed the said fact, however, he does not known why the same

was not recorded by the police. He deposed that when the injuries

by bricks were being inflicted, the swords and knives were lying

near the accused persons. He deposed that when Rajkumar was

taken to the hospital in Gypsy by the police, he was accompanying

them whereas other witnesses have categorically deposed that the

deceased was taken to the hospital by police and none of them

was accompanying them. He deposed that he and P.W.15/15A

Amritlal @ Badelal, the brother of deceased Rajkumar did not

intervene to rescue Rajkumar. He deposed that when Rajkumar

was put into Gypsy, his clothes and clothes of Islam, Satish and

Amritlal got blood stained. He deposed that there was huge crowd

at the place of occurrence and therefore, he did not know as to

where Kurban and Islam had gone. Contrary to the deposition of

P.W.4-Satish Kumar that Islam was employed with deceased
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Rajkumar, the said witness deposed that Islam and Kurban were

employed with Satish Kumar, the brother of the deceased.

Apart from the fact that the said witness deposed that he

reached the place of occurrence a few minutes after 9:15 P.M. and

the police had reached there around 9:30 P.M. whereas, as per the

evidence available on record, the police had reached the place of

occurrence around 10:30 P.M., there is no explanation that if he

and P.W.15-Amritlal had reached the place of occurrence at 9:30

P.M. and the accused persons had fled away from the place of

occurrence on their raising hue and cry then why the injured

Rajkumar was not taken to the hospital immediately by them. It is

not out of the place to mention here that in his statement

recorded under Section 161 Cr.P.C. (Ex.D/3), the said witness has

stated that he had started from Shyam Nagar to his home around

9:45 P.M. and turned towards Hanuman Mandir via Tarachand

Vatika around 10-10:15 P.M. Strangely enough, according to the

said witness though he and P.W.15/15A-Amritlal @ Badelal, the

brother of the deceased, had reached the place of occurrence and

saw the accused persons belabouring the deceased Rajkumar with

bricks yet they did not intervene to rescue him, which in the

considered opinion of this court, is against the normal human

conduct. The said witness deposed that while lifting Rajkumar

from the place of occurrence, his own clothes and the clothes of

P.W.4-Satish Kumar and P.W.15/15A-Amritlal @ Badelal got blood

stained but the clothes of none of the witnesses were seized by

the police. As noticed above, in his deposition before the court,
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the said witness deposed that they saw that a person was lying on

the ground; two persons were sitting on him and rest of the

standing persons were belabouring him. At the same time, he

deposed that Baljeet, Manish, Ravi Nayak, Goriya, Manoj Jat and

one or two others were inflicting injuries on the head of the

deceased Rajkumar by bricks whereas, in his statement under

Section 161 Cr.P.C. (Ex.D/3), he deposed that Baljeet and Pintu

sitting on a person lying on the ground were inflicting injuries to

him by bricks and Manoj Jat, Goriya Soni, Ravi Nayak, Manish and

one or two other persons were kicking the person lying on the

ground. Thus, keeping in view the apparent self contradictions in

the deposition of the said witness on material points and the

attempt made to improve his original version so as to bring his

deposition before the court in conformity with the medical

evidence, we are of the opinion that said witness is also not

trustworthy and reliable witness and his presence at the time of

occurrence is highly doubtful.

22. P.W.15/15A-Amritlal @ Badelal, who is also the brother of the

deceased Rajkumar, deposed that on the fateful day, Rajkumar

met him and P.W.7-Harish Shukla at Shyam Nagar around 9-9:15

P.M. who asked them whether they are proceeding to home

thereupon, they told that they have some work for 5-7 minutes,

then Rajkumar proceeded. After their work was over, they by the

side of the tower turned towards Panchmukhi Hanuman Temple

then they saw a person lying on the ground; two persons were

sitting on him, who were Rupesh @ Pintu and Baljeet. Manish,
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Ravi Nayak, Goriya Soni, Manoj Jat and 2-3 others were standing

and inflicting injuries on him by bricks. When he and P.W.7-Harish

Shukla challenged them, they after crushing badly the head,

mouth and face by bricks while picking up their weapons, fled

away towards Mahila Park. Pintu and Baljeet had taken away two

mobiles and Motorcycle CT Bajaj of the deceased. The injured

Rajkumar was taken care of by him, Harish, Islam and Satish. In

the meantime, the police Gypsy reached there and his brother was

taken to the hospital. He, Harish, Satish and Islam followed the

police Gypsy to the hospital.

In cross examination, he deposed that when they reached at

the place of occurrence, his brother Rajkumar was unconscious.

He deposed that when they challenged the accused persons,

Satish was there in the left side of the Hanuman Temple, who had

just reached there. Islam standing on the spot was shouting

‘bachao bachao’. He deposed that they had parked the Motorcycle

25 ft. away from the place of occurrence and from there they had

seen accused persons belabouring their brother. He further

deposed that after their reaching at the place of occurrence, the

accused persons inflicted brick blows on the head of the deceased

and crushed his face. The face was recognizable only a bit. The

clothes of all of them got blood stained, however, since no demand

was raised by the police, the same were not handed over.

The statement of said witness was again recorded, which is

marked as P.W.15A inasmuch as at the time when earlier

statement was recorded, accused Manoj Jat was absconding. In
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his second statement recorded, the said witness identified Manoj

as the person accompanying the co-accused and indulged in

commission of the offence.

It is pertinent to note that in his statement under Section

161 Cr.P.C. (Ex.D/4), the said witness had taken the stand that

Baljeet and Pintu while sitting on the person lying on the road,

were inflicting injuries to him by bricks and Manoj Jat, Goriya

Soni, Ravi Nayak, Manish and one or two others were kicking him.

He also did not furnish any explanation as to why he did not

attempt to rescue his brother.

For the parity of the reasons, holding P.W.7-Harish Shukla as

not trustworthy and reliable witness, we find that P.W.15/15A-

Amritlal @ Badelal is also not truthful and wholly reliable witness

and his presence at the time of occurrence remains doubtful.

23. At this stage, it would be appropriate to consider the

testimony of the Investigating Officer P.W.14-Gurbhupendra Singh,

who has categorically deposed that on the fateful day at 10:15

P.M. he received a telephonic message that in front of Hanuman

Temple near Tarachand Vatika, a quarrel is going on. He deposed

that after entry in the Roznamcha (Ex.P/55) at serial No.1824 by

SI Mangeram, he alongwith other police personnel proceeded to

the place of occurrence. On reaching there, they found one person

Rajkumar s/o Shiyamber Gupta lying there in the pool of blood.

The brothers of the deceased Satish and Amritlal etc. reached on

the spot and the injured Rajkumar was immediately taken to the

hospital. The written report (Ex.P/3) was submitted by the P.W.4-

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Satish Kumar before him at the hospital. He accepted the

suggestion of the defence that P.W.4-Satish Kumar had informed

him that Baljeet and Pintu have inflicted injuries on the person of

Rajkumar by knife. He stated that he does not know as to in

whose name the R.C. of Motorcycle exists.

From bare perusal of the deposition of P.W.14-Gurbhupendra

Singh, it is apparent the police had reached the place of

occurrence after 10:15 P.M. and as soon as the police reached

there, the injured Rajkumar was taken to the hospital. If the

incident had occurred around 9:30 P.M., firstly, there is no

explanation as to why any of the persons present there including

the brothers of the deceased did not attempt to rescue the

deceased Rajkumar and further, if they had reached the place of

occurrence and as they deposed, their brother was alive, why he

was not taken to the hospital immediately. The eye witnesses

P.W.3-Islam has categorically deposed that Pintu and Ravi Nayak

inflicted injuries on the head of the deceased by sticks, swords

and knife and thereafter by bricks. The deposition of the said

witness who is alleged to be present at the place of occurrence

right from beginning is not corroborated by medical evidence

inasmuch as, as per post mortem report, in all five injuries were

found on the head of the deceased and out of which none was

caused by sharp edged weapon. As already discussed, the

improvement in the initial version in the written report (Ex.P/3)

and the statement of the said witnesses recorded under Section

161 Cr.P.C. was made only after the post mortem of the body of
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the deceased being conducted by the Medical Officer. Thus,

keeping in view the self contradictions in the deposition of eye

witnesses as also the contradictions in the statement of eye

witnesses with each other as also the apparent contradictions

noticed above with their statement recorded under Section 161

Cr.P.C. and non corroboration of the testimony of eye witnesses

with the medical evidence, we do not find the testimony of the

alleged eye witnesses trustworthy and wholly reliable. We are of

the opinion that as a matter of fact, the prosecution has

suppressed the genesis of the occurrence and the incident remains

shrouded by mystery.

24. Coming to other corroborative evidence, it is noticed that the

weapons which as per the prosecution the accused persons were

carrying i.e. swords, sticks, knife and the Motorcycle chain are not

recovered. However, at the instance of accused Rupesh, recovery

of blood stained jacket and hand gloves vide Ex.P/30 and a

Motorcycle Bajaj CT 100 bearing registration No.RJ-13-SA-5513

vide Ex.P/57 were made. Further at the instance of accused

Baljeet, a blood stained sweater vide Ex.P/32 and at the instance

of accused Manoj, a Motorcycle Hero Honda Passion bearing

Registration No.RJ-13-SB-5347 were recovered.

25. It is pertinent to note that the information under Section 27

of the Evidence Act regarding one blood stained sweater and one

hand glove was furnished by the accused Rupesh @ Pintu vide

Ex.P/58 on 2.2.08 at 11:30 A.M., however, the recovery was made

vide Ex.P/30 on 4.2.08 at 12:50 P.M. There is no explanation as to
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why the recovery pursuant to the information supplied was not

made by the police immediately. As per deposition of the witness

of recovery P.W.8-Phoolchand, the recovery was effected from an

open house where number of persons were present and thus, the

place of recovery cannot be said to be in the exclusive possession

of the accused Rupesh @ Pintu. It is argued by the prosecution

that the blood stained jacket was found stained with the blood of

group ‘A’ i.e. the group of the deceased. There is nothing on

record suggesting that the blood group of the deceased was ‘A’.

That apart, admittedly, no steps were taken to ascertain the blood

group of the accused Rupesh @ Pintu. In this view of the matter,

the recovery made which does not inspire confidence and the

alleged FSL report (Ex.P/60) cannot be made basis for conviction

of the accused Rupesh @ Pintu.

So far as recovery of Motorcycle Bajaj CT 100 bearing

registration No.RJ-13-SA-5513 vide Ex.P/57 is concerned, nothing

has come on record to prove that the Motorcycle in question was

owned by the deceased Rajkumar. It has been categorically

admitted by the Investigating Officer P.W.14-Gurbhupendra Singh

that he does not know as to in whose name the R.C. of the

Motorcycle exists. Thus, the recovery of the Motorcycle also

cannot be considered to be an incriminating circumstance against

the accused Rupesh @ Pintu. Moreover, without there being any

cogent evidence establishing the guilt of the accused Rupesh @

Pintu in causing death of Rajkumar, the recovery of the Motorcycle
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in isolation, is not sufficient to convict him for offence under

Section 302 IPC.

26. As per the prosecution, on the basis of the information

supplied by accused Baljeet under Section 27 of Evidence Act, a

blood stained sweater was recovered vide Ex.P/32. However, the

memo of information if any furnished by the said accused is not

even exhibited in evidence and thus, recovery alleged to have

been made at the instance of accused Baljeet has no evidentiary

value.

27. Lastly, coming to the recovery of Motorcycle Hero Honda

Passion bearing Registration No.RJ-13-SB-5347 at the instance of

accused Manoj Jat vide Ex.P/34, in absence of any other

incriminating circumstance against him, could hardly construed to

be the evidence connecting him with the commission of crime.

28. It needs to be noticed that the specific overt acts were

assigned by the alleged eye witnesses to the accused Ravi Nayak

and Manish, however, they stand discharged by virtue of order

dated 27.4.18 passed by learned Single Judge of this court in

Criminal Revision Petition No.1053/12, whereby after conclusion of

the evidence the order passed by the trial Judge on the application

preferred by the Public Prosecution under Section 319 Cr.P.C.

taking cognizance against them for offences under Section 323,

341, 302, 382, 325, 147, 149 IPC and directing their trial with the

charge sheeted accused, the appellants herein, stands set aside. It

is true that essentially the order is passed by the learned Single

Judge setting aside the order taking cognizance observing that it
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would be a travesty of justice if a de novo trial is held by

sustaining the order summoning the petitioners therein as

additional accused in the case. But nonetheless, the evidence on

record were also taken into consideration by the learned Single

Judge.

29. In view of the discussion above, in the considered opinion of

this court, the prosecution has failed to prove the guilt of the

accused appellants beyond reasonable doubt and therefore, the

appellants herein deserve to be acquitted of the charges giving

benefit of doubt.

30. Accordingly, the appeal is allowed. The appellants Rupesh @

Pintu, Manoj Kumar and Gourav Kumar @ Goriya are acquitted of

the charges for offences under Sections 302/34, 325/34, 323/34,

382/34 and 341 IPC. The accused Manoj Kumar and Gourav

Kumar @ Goriya Soni are on bail, their bail bonds shall stand

discharged. Appellant Rupesh @ Pintu, who is behind the bars

shall be released forthwith, if not required in any other case. The

appellants Rupesh @ Pintu, Manoj Kumar and Gourav Kumar @

Goriya, each shall furnish a personal bond in Rs.50,000/- and a

surety of like amount to the satisfaction of the learned trial Judge

in terms of the provisions of Section 437 A Cr.P.C.

(VIRENDRA KUMAR MATHUR),J. (SANGEET LODHA), J.

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