SHARMA, J. - (1.) RAM Narain @ Sannu and Vishram, the appellants herein, along with co-accused RAMji Lal, Jai RAM and Hazari were put to trial before learned Additional Sessions Judge Laxmangarh (Alwar), who vide judgment dated July 11, 2002 although acquitted RAMji Lal, Jai RAM and Hazari, convicted and sentenced the appellants under section 302 IPC to suffer imprisonment for life and fine Rs. 1000/-, in default to further suffer six months imprisonment.
(2.) A written report (Ex. P-2) was submitted on October 12, 2000 by informant Hans Ram (Pw. 2) at Police Station Khedli with the averments that on the said day around 7 AM while his brother Deviram was returning from the field, he was belaboured and beaten up by Jairam, Ram Narain, Vishram, Ramji Lal and Hazari near boring of Jhandu. Injured Devi Ram was removed to the Hospital. On that report a case under sections 147, 148, 149, 323 and 307 IPC was registered and investigation commenced. In the hospital Devi Ram succumbed to the injuries and section 302 IPC was added. Dead body was subjected to autopsy, statements of witnesses were recorded, the accused were arrested and necessary memos were drawn. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Laxmangarh (Alwar ). Charge under sections 147, 148, 302/149 IPC and 4/25 Arms Act were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as may as 15 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. On hearing final submissions learned trial Judge convicted and sentenced the appellants as indicated herein above. Death of Devi Ram was undeniably homicidal in nature. As per autopsy report (Ex. P-16) following ante mortem injuries were found on the dead body:- " 1. Abrasion 2x2cm left shoulder reddish 2. Lacerated wound 3x1x 1/2cm Rt. leg with red clotted blood 3. Three abrasions 3x1x1cm each size Rt. knee anteriorly reddish 4. Abrasion Rt. Thigh 3 x 2cm Anteriorly reddish. 5. Incised wound 4x1x 1/2cm Lt. thumb base Muscle deep in palm with red clotted blood 6. Abrasion 6x4 1x1 cm left elbow reddish 1x1 root reddish 7. Abrasion two 1x1 cm size Lt. arm post reddish. 8. Fiver Abrasion 3x2cm to 1x1cm over Rt. hand and finger Ist IInd IIIrd finger post & hand 9. Three abrasions 3x1cm to 1x1cm over Lt. elbow & Lt. Forearm post 10. Lacerated wound 3x2cm x scalp deep with red clotted blood Rt. side forehead. 11. Lacerated wound 3x1cm forehead mid with red clotted blood x scalp deep 12. Incised wound 6x1x1/2 cm Lt. side occipital x scalp deep with red clotted blood. 13. Incised wound 7x1x1cm Rt. side occipital scalp deep red clotted blood. 14. Bruise 6x4cm left parietal skull reddish. 15. There is fracture of left parietal bone with tissue staining present at the fracture site type of fracture is linear. 16. Sub dural haematoma is present all over both hemisphere. Dr. Amar Singh Rathore (Pw. 10), who conducted autopsy on the dead body deposed that the cause of death was coma due to head injury. Having carefully considered the rival submissions and on careful scrutiny of the material on record we notice that impugned finding arrived at by learned trial Judge is based on the testimony of Het Ram (Pw. 4) and Murari (Pw. 9 ). In para 13 of the judgment learned trial Judge found the presence of Het Ram and Murari quite natural at the time of incident. Murari (Pw. 9) in his deposition stated that around 6-7 AM while he was at his field he had seen a tractor passing on the path way near his field. Five accused persons were sitting on the tractor. At that time Devi Ram was coming from his field. The tractor got halted and Ram Narain inflicted lathi blow on the head of Devi Ram, as a result of which Devi Ram fell down on the field of Jhandu, Vishram inflicted two Pharsi-blows on the head of Devi Ram, whereas Jai Ram inflicted Pharsi-blow on his thumb. Het Ram (Pw. 4) deposed that Ram Narain inflicted lathi blow on the head of Devi Ram, thereafter Vishram gave two Pharsi-blows on his head. Jai Ram then caused injury on the thumb of his right hand with Pharsi. Learned trial Judge after considering the cross examination of Murari and Het Ram held that their evidence was reliable qua accused Ram Narain and Vishram. It is contended by learned counsel for the appellants that Hetram (Pw. 4) and Murari (Pw. 9) are the close relatives of the deceased and because of their unnatural conduct i. e. keeping mum even after the incident and not making effort to remove Devi Ram to the hospital, their presence is doubtful at the time of incident. Learned counsel further contended that Hansram (Pw. 2) brother of deceased reached to the spot on being informed by Bhagwan Shay that some body had killed Devi Ram but evidence of Bhagwan Sahay has been withheld. Even Hans Ram's conduct in not taking care of the body of Devi Ram was quite unnatural. Learned counsel took us through the contradictions in the evidence of prosecution witnesses and urged that no reliance could be placed on such shattered testimony. Per contra learned Public Prosecutor and learned counsel for the complainant supported the impugned judgment and contended that presence of Het Ram (Pw. 4) and Murari (Pw. 9) at the time of incident is established and in their cross examination nothing favourable to the appellants could be extricated and because of the fact that they are close relatives of the deceased, their testimony could not be discarded. It is well settled that when ocular evidence is cogent, credible and trustworthy, minor variance, if any, is not of any consequence. Eye witnesses account would require a careful independent assessment and evaluation for its credibility. The evidence must be tested for its inherent consistency and inherent probability of the story.
(3.) THEIR Lordships of the Supreme Court in Din Dayal Vs. Raj Kumar @ Raju (AIR 1999 SC 537) held as under:- (Para 4) "witness Din Dayal had accompanied the deceased to the hospital but after reaching there he did not disclose the name of the accused to the Police Constable who was on duty even though he disclosed other facts regarding the incident. This circumstance has been relied upon by the High Court together with some other reasons for doubting truthfulness of the evidence of this witness. The High Court has also referred to the improvements made by Din Dayal and those improvements clearly indicate that they were deliberately made with a view to make the presence of other witnesses acceptable. Having gone through the evidence we find that the view taken by the High Court is not unreasonable and no interference is called for by this Court. " In Shankar Lal Vs. State of Rajasthan (AIR 2004 SC 3559) the Hon'ble Supreme Court held as under:- (Para 5) "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 Kyali 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 that he is purely a chance witness whose presence at the place of incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Kyali 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 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 bail bonds shall stand discharged. " State of Punjab vs. Sucha Singh (2003 Cri. L. J. 1210) was the case where accused alleged to have killed deceased to avenge murder of his nephew. Eye witness father of deceased not tried to rescue his son, who sustained as many as 24 injuries. Such conduct of witness make his presence doubtful. Other eye witness did not own land in village and his presence at the place of occurrence was held doubtful. Contradiction between ocular and medical evidence as to number of injuries on deceased also make their presence doubtful. It was indicated as under:- (Para 10) "pw-4 in his testimony before the Court stated that the accused also caused more injuries with their respective weapons on Sarabjit Singh. This witness was confronted with his statement recorded under section 161 Crpc where he has not stated. Apart from discrepancy between ocular and medical evidence with regard to the injuries sustained by the deceased Sarabjit Singh on his body, the fact that the deceased suffered as many as 24 bodily injuries makes all the more doubtful the presence of Pws4 and 5 at the place of occurrence. Inflicting 24 injuries on the body of deceased by the three accused persons would require a considerable amount of time. This itself suggests that the accused had sufficient time at their disposal to commit the crime. Any father, worth the name, would not remain a mute spectator when his son is being inflicted as many as 24 injuries at his very nose. " ;