1. By judgment dated 3.12.2003, learned Additional Sessions Judge No. 3, Udaipur convicted the accused appellants for the offences punishable under Sections 396 and 449 IPC and sentenced the accused persons in following terms:
396 IPC :- Life imprisonment with Rs. 500/- fine and two months rigorous imprisonment in default to payment of fine.
449 IPC :-10 years rigorous imprisonment with Rs. 500/- fine and two months rigorous imprisonment in default to payment of fine.
2. As per Ex.P/2, the First Information Report, facts of the case are that on 19.5.2002 one Prabhu Singh informed the police at the spot of occurrence that in the night of 18.5.2002 at about 09:00 PM when he was sleeping in front of Hanumanji Temple within the temple complex of Gautmeshwar Mahadev, stoning was started suddenly and 7-8 persons carrying knife, sword, lathi and saria, entered into the temple campus. At that time Maharaj Keshwanandji (deceased) was sleeping in chowk of the temple and the mother of Shri Keshwanandji, his wife, Banshi, Pahad Singh were spreading bed rolls to sleep. All the eight persons snatched a sum of Rs. 1000/-, a Rado make wrist watch and a gold chain from the informant and also took a sum of Rs. 15,000/-, that was lying under the seat of Maharaj Keshwanandji. As per the first information report the accused persons gave lathi and saria blow to Maharaj, as a consequent to which he died at the spot. It was also stated that accused persons snatched silver bangles, a silver nose pin, a gold chain and 'oganya' of gold from mother of Maharaj Keshwanandji. As per the first information report the entire process of decoity was started at about 09:00 PM and continued upto 04:00 AM in morning. On basis of the information aforesaid investigation was launched for the offences punishable under Sections 460 and 380 IPC.
3. During the course of investigation a site plan was prepared wherein entire Gautmeshwar temple complex, the place wherefrom stones were said to be thrown is shown. In the site plan position of a 'Badd' tree as well as the place where one Ambassador Car RJH-5387 was parked, is also shown but no installation of any solar light is referred. In the site report too no reference of any solar light is given, however, reference of two blood stained stone pillars is made. It is also mentioned that the accused persons were within the age of 20-22 years and carrying arms and were also carrying torches in their hands.
4. During the course of investigation accused Karma and Poona were arrested on 5.6.2002; Pancha was arrested on 6.6.2002; Dhanna was arrested on 7.6.2002; Lala was arrested on 6.6.2002; Dalla was arrested on 11.6.2002 and Sohan was arrested on 16.6.2002 and they were sent to judicial custody on 19.6.2002. An identification parade was made on 21.6.2002 and all the accused were identified by the eye witnesses viz. Prabhu Singh, Banshi Singh and Pahad Singh. The investigating agency also recovered a wrist watch (Rado make) from Lala, a silver chain (broken) from Dhanna, a silver ring and ear rings from Galla, ear rings (gold) from Sohan, a silver ring from Poona and a silver kadi from Karma. The wrist watch, silver ring (recovered from Galla) and the silver chain were identified by PW-2 Prabhu and rest of the articles were identified by PW-10 Kamla. The memos of recovery are available on record as Ex.P/6 to Ex.P/13, Ex.P/26 and Ex.P/45. Ex.P/51 is postmortem report, according to that the cause of death of Shri Keshwanandji was coma due to injury No. 1 and that is an incised wound 2' x 1/2' bone deep on right parietal area of skull. The injury was opined to be given by a sharp weapon and was antemortem in nature. The photographs of the site are available on record as Ex.P/53 to Ex.P/75.
5. After completing regular investigation a charge sheet as per provisions of Section 173 Cr.P.C. was filed charging the accused appellants for the offences punishable under Sections 396 and 449 IPC, learned trial court then framed the charges and conducted trial.
6. During the course of trial 21 witnesses were examined in support of prosecution and 112 documents were produced. 23 other articles too were produced by the prosecution to substantiate the charges. The accused persons were examined as per provisions of Section 313 Cr.P.C. wherein they denied all the allegations and charges alleged. The accused persons in defence produced four documents and those are the statements, of Prabhu Singh, Banshi Singh, Pahad Singh and Pratap Singh, recorded by the police during the course of investigation.
7. Learned trial court while convicting the accused appellants mainly relied upon the statements given by PW-2 Prabhu, PW-3 Banshi, PW-4 Pahada, PW-10 Kamla (all eye witnesses) and PW-21 Vivek Singh, the investigating officer. The trial court also based its findings on recovered articles, their identification and identification of the accused persons.
8. As per PW-2 Prabhu, the police came at the spot on an information given by some pandit who came to temple at about 5/6 AM. No identification of the pandit was given by Prabhu. He also stated that no information was given by him to the police. As per this witness he was hiding himself inside the Hanumanji temple wherein Banshilal and Pahad Singh too were hidden. He also stated that after getting inside the Hanumanji temple, it is not possible to see what is happening in temple of 'Shivji' as well as 'Mataji' (Goddess), however, he stated that from Hanumanji's temple sant kutia is visible being at the distance of about 20 feet. He also stated that all the accused persons were carrying torches in their hands and one of them was carrying a knife and others were having either lath or rod. He subsequently clarified that two persons were carrying rods and remaining were having lath with them. He also stated that in first information report police wrongly mentioned snatching of gold chain from him, as in fact that was silver chain. As per PW-2 Prabhu, he was called at police station Gogunda after 8-10 days from the date of incidence to identify recovered articles. He also stated that the police personnels brought miscreants accused persons twice or thrice to temple complex for verification of entire incident and then he too was called for by the police. A quite specific statement was given by him that in his presence the miscreants accepted their offence and narrated facts relating to giving assaults to deceased Shri Keshwanandji. During cross examination, he stated that no identification was given by him relating to face structure of the accused persons but he definitely informed the police about their height i.e. of about 4-5 feet. As per this witness, the temple complex being situated in hills was not having electricity. He also stated that the connecting road was also not having any light. He further stated that in temple complex there were two solar lights and both were working at the time of incident. PW-2 Prabhu also stated that the entire incident of decoity continued for a term of about seven hours and out of that accused persons were beating him alone for about four hours. No specific act of assault by any of the accused is referred by this witness. During cross examination, he admitted the fact that heads of the accused persons were turbaned with a cloth.
9. PW-3 Shri Banshilal stated that at about 8-9 PM he found two persons standing near the car parked in the temple complex and presence of these two persons was informed to Maharaj (deceased). After some time 7-8 persons entered into the temple complex and they assaulted Maharaj with lathis and rods and they also demanded money from Maharaj. The accused persons then pulled Maharaj towards his kutia and snatched Rs. 15,000/- therefrom. As per this witness, one solar light was in operation in temple complex. During the course of cross examination he stated that he wrongly stated during examination in chief that there was only one solar light, but as a matter of fact two solar lights were existing and out of those one was outside the kutia of Maharaj and other one in the chowk of the temple. He also stated that the accused persons remained in temple complex upto 04:00 AM, but he failed to say anything about the fact that whether accused persons were having torches in their hands or not.
10. PW-4 Pahad Singh in general stated the same facts relating to initiation of incident in the night of 18.5.2002, but he said that the entire incident was of about 2-3 hours. He also stated that two solar lights were installed in the temple complex and those were broken by the accused persons while leaving the place of occurrence. He also stated that neither money from Prabhu Singh nor any chain or wrist watch was snatched by the accused persons in his presence. Though, at first instance he stated that entire incident of 2-3 hours, but subsequently he also stated that for about five hours accused persons were beating to Maharaj (deceased) only and they did not assaulted any other person.
11. PW-10 Smt. Kamla, who is wife of deceased Keshwanandji, stated that on the date of incident she alongwith her mother-in-law was present in temple complex, four other servants were also there and at about 09:00 PM seven people entered into the temple complex. The persons so entered assaulted her husband Keshwanandji and also to herself. In cross examination, she specifically mentioned that the accused persons hammered a nail in the head of Swamiji (deceased) and because of that he was having huge bleeding. She also stated that the fact about hamerring nail in head of deceased was not conveyed by her to the investigating agency.
12. Though the learned trial court mainly relied upon the abovenamed four witnesses, but an another important witness is PW-7 Prem Singh, who too was present in the temple complex at the time of incident. According to Prem Singh at about 8-9 PM on the day of incident 7-8 persons entered into the temple complex and started assaulting to the persons present there. He further stated that the miscreants came there were wearing pant-shirts and they closed all the persons in the rooms existing in temple complex. He further stated that in temple complex a solar light was operating, however, he was not in position to see anything being placed in dark. He also stated that he does not know meaning of solar light and he also does not know about actual number of accused persons entered in the temple complex.
13. PW-21 Shri Vivek Singh is the person who was holding the office of Station House Officer of Police Station Gogunda on the day of occurrence. As per him, he received a telephonic information that somebody has killed Mahant Keshwanandji of Gautmeshwar temple, village Iswal, therefore, he proceeded to the site where he received oral information from Prabhu Singh relating to the incidence, accordingly, he initiated the investigation. As per Vivek Singh, accused persons at first instance were interrogated just on basis of a speculation as he was having information that these persons are involved in certain mischievious activities. He also said that the residence of accused persons is at the distance of about 30-40 kms. from the place of occurrence. He also stated that while coming to the place of occurrence he also instructed the photographer to reach at the site, accordingly he was there. He also stated that Prabhu Singh told him about snatching of a gold chain by the accused persons, but it appears that, that information was given under depression due to incidence as the actual chain snatched was of silver. Necessary details were also given by this witness relating to recovery made from various accused persons with this specific clarification that no person from their own village were ready to verify the recovery, therefore, he brought motbirs from other villages. As per PW-21, the fact regarding non-availability of motbirs at the native place of accused persons was not recorded in case diary. It was not within his knowledge that whether any solar light was working at the place of occurrence or not. He also not mentioned anything about availability of broken parts of any solar light at the spot. During cross examination, he failed to give any reason for not referring solar light and its other incidental parts in the site plan and site report.
14. The recovery of various articles was verified by the prosecution on basis of the statements of PW-8 Bhoor Singh, PW-9 Shyam Singh, PW-11 Narayan Singh and PW-12 Kishan Singh.
15. PW-8 Bhoor Singh stated that he was accompanying police party that visited village Ovariya where at the instance of accused a kadi of silver was recovered. He also stated that at the time of recovery he was not knowing about the incident relating to which recovery was sought to be made. He accepted the position that he is a resident of a distant place than to the place wherefrom recovery was made.
16. PW-9 Shyam Singh stated that he alongwith three police personnels and accused Lala visited village Peepla i.e. at the distance of about 50-55 kms. from the place of his residence and from village Peepla they further proceeded to village Godiya which is further at the distance of about 5 kms. In village Godiya ear rings were recovered from the house of Galla. He also stated that the accused was not available at the spot wherefrom recovery of the ear rings (tops) was made.
17. PW-11 Narayan Singh stated that he and Dhan Singh accompanied the police party that recovered a silver ring and a gold nose pin from accused persons. As per this witness during the process of recovery they were sitting below a tree and after some time Thanedar Saheb informed them regarding recovery of nose pin and also a silver ring.
18. PW-12 Kishan Singh stated that a gold ear tops was recovered from the accused persons at village Ranoji. During process of recovery certain family members of Maharaj (deceased) were also accompanying police party. He also stated that accused Sohan brought the recovered articles from inside the room and at that time the witness was standing outside the room.
19. Ex.P/51 is the postmortem report and according to that cause of death of Shri Keshwanandji was Coma due to injury No. 1. The injury No. 1 is an incised wound 2' x 1/2' bone deep on right parietal bone area of skull. Dr. Rajesh Chhajer (PW-16), while verifying the postmortem report, also stated that such an injury can be received only by a sharp edged object, may that be corner of iron sheet door.
20. An important witness is PW-18 Vinod Rao, who reached at the spot as a photographer under instructions of the investigating officer Shri Vivek Singh. PW-18 stated that he at his own took number of photographs of the spot including the photographs of various articles lying at the place of occurrence. He also stated that in the photographs no object like solar light or battery are visible. As per this witness, no marks of any solar light are also visible in the photographs.
21. PW-19, the then Judicial Magistrate, Bhinder, stated that certain recovered articles were brought before him by Shri Vivek Singh and those were identified by Smt. Kamla and Shri Prabhu Singh.
22. PW-20, the then Civil Judge, Ajmer (West), is the officer in presence of whom identification parade was conducted on 21.6.2002. As per this witness, all the accused persons were produced before him before a note remand that they were kept under well. He also stated that he perused the case diary wherein it was mentioned that when the accused persons were arrested and the places where they were taken during investigation. He also stated that witness Pahad Singh failed to identify accused Sohan.
23. With the aid of the evidence narrated above, learned trial court recorded the conviction and awarded sentence to the appellants and while doing so also negatived the defence that:
(1) the evidence of the informant vis-a-vis other witnesses appears to be inconsistent and, thus, the entire evidence is not worthy reliance;
(2) as per the evidence and circumstances available, there was no occasion for the witnesses to see the actual culprits of the incident in question being a dark night and also due to non availability of any light giving object, but at quite a belated stage they identified the present accused persons under the instructions of investigating agency and that makes the entire process of identification bad; and
(3) there is lot of inconsistency in the articles said to be snatched at the time of incident of decoity and the articles recovered. The identification of those recovered articles is also not proper.
24. The same defence is put forth before us while pressing this appeal.
25. Heard learned amicus curiae and the learned Public Prosecutor and also examined the entire record.
26. The entire case of the prosecution is based on the evidence relating to the identification of accused persons and identification of the recovered articles. Such an identification is always required to be established with the evidence without any contradiction and inconsistency. Such identification should not only plausible but should be beyond any shadow of doubt. A fair investigation demands that identification of accused should be made without avoidable and unreasonable delay after the arrest of accused. In the present case the accused persons were arrested on different dates as referred in para 4 and they were sent to the judicial custody on 19.6.2002. The identification parade was conducted on 21.6.2002. True it is, the witness, on 21.6.2002 identified the accused persons except one Sohan, who was not identified by Pahad Singh, but the court is required to examine all the circumstances including the fact that whether there was any possibility for the witnesses to see the accused persons during the course of investigation. In the present case accused Poona and Karma were arrested on 5.6.2002, Pancha and Lala were arrested on 6.6.2002 and Dhanna was arrested on 7.6.2002. Accused Dalla and Sohan were arrested on 11.6.2002 and 16.6.2002 respectively. It was the Sohan who was arrested as the last person from among the accused and interestingly he was not identified by Pahad Singh. The delay for putting the accused persons other than Sohan for identification is not justifiable and the witness PW-21 also failed to explain this delay adequately, when a query was put to him in this regard.
27. The PW-2 Prabhu, in quite unambiguous terms stated that during the course of investigation police brought all the accused persons at the place of incidence where he and other witnesses too were present. This statement coupled with the fact that the investigating officer Vivek Singh (PW-21) stated that no note was made in the case diary to keep accused persons under veil was made, creates little suspicion that the accused persons would have been seen by the witnesses during the course of investigation. It is also pertinent to note that PW-12 Kishan Singh, who is a motbir for recovery of gold ear tops, stated that during the process of recovery certain family members of Maharaj (deceased) were also accompanying police party. It is also worthwhile to note that on the date of incident it was the dark night and the sole source to provide sufficient light to see the accused persons by the witnesses as per the prosecution, was the solar light, but existence of that itself is quite doubtful. PW-2 Prabhu Singh stated that two solar lights were installed in the temple complex, whereas according to other witness PW-3 Banshilal, only one solar light was working, though subsequently he improved his statement by saying that actually there were two lights. Be that as it may, existence of solar lights is not given in site plan and also in site report. The photographer PW-18 also said that in the photographs there are no marks of availability of solar lights even in broken condition.
28. The prosecution witnesses also state that the accused persons were having torches in their hands but none of them states that any torch was working or in what manner torches were utilised by the accused. As a matter of fact no torch is recovered from the accused persons. It is also relevant to notice that as per PW-2 Prabhu Singh all the accused persons were turbaned and at the time of giving information he did not gave any physical identification of the accused persons to the investigating agency except that they were of height between 4-5 ft. The measurement of height i.e. 4-5 ft. is quite unusual and that also gives a big range for determination. The persons of such height may certainly be called short person but no witness mentioned the accused persons as short heightened.
29. In the factual position narrated above, despite the fact that the witnesses identified the accused persons during the course of identification parade, we are of the opinion that on the point of identification the evidence is quite doubtful and that goes against merit of the prosecution version.
30. The another aspect of the matter requires examination, is inconsistency in the statements of the eye witnesses. A very important aspect of the matter is that informant PW-2 Prabhu Singh stated that immediately after entering of the accused persons in temple complex, they assaulted Maharaj (deceased) with lath and saria. He nowhere states that any nail was hamerred in the head of deceased, whereas, PW-10 Smt. Kamla states that a nail was hamerred in the head of deceased and because of that deceased fell down. The injury that was cause of death is an incised wound 2' x 1/2' bone deep on right parietal area of skull and that could have been received only by a sharp edged object. No such sharp edged object at all is recovered by the investigating agency. PW-2 also stated that out of seven hours in which decoity was going on, the accused persons were beating him for about four hours, whereas other eye witnesses viz. Prem Singh, Pahad Singh and Banshi nowhere state so. As a matter of fact the stand of Pahad Singh is quite different. He in most unambiguous terms states that the accused persons gave lathi and saria blow to deceased and then pulled him to kutia wherefrom they snatched a sum of Rs. 15,000/-. Witness Pahad Singh states that neither money nor any chain or wrist watch from Prabhu Singh was snatched by the accused persons in his presence. Every eye witness as a matter of fact gives a different story, at least with regard to availability of solar light and mode of assaulting Maharaj, the deceased. With this background, it is also relevant to note that one eye witness Prem Singh states that all the persons present in the temple complex were closed in the rooms and it was not possible for them to see anything despite availability of solar lights.
31. Now the issue requires examination, is of the articles recovered and their identification.
32. PW-2 Prabhu Singh, while providing information to investigating officer, immediately after the incident, stated that his wrist watch (Rado make), a sum of Rs. 1000/- and gold chain were snatched by the decoits. No gold chain at all was recovered by the investigating agency. PW-2 Prabhu Singh identified a silver chain which was recovered from accused Dhanna. PW-2 tried to explain recovery of silver chain by stating that in first information report he did not say about gold chain. The explanation given by the witness is absolutely unsatisfactory. It is also relevant to note that PW-11 Narayan Singh, in presence of whom silver chain and certain other articles were said to be recovered, stated that at the time of recovery, he and certain other persons were sitting below the tree and then Thanedar Saheb came and said about the recovery of certain articles. This witness appears to be a disciple of deceased as he quite specifically stated that on knowing about death of Maharaj he went to Gautmeshwar temple wherefrom he was taken by police party as motbir.
33. Similarly, recovery of nose pin and ear tops is also quite doubtful. These articles too were recovered when Narayan Singh was motbir. As per the prosecution, on basis of disclosure made by accused Karma, a silver kadi was recovered from village Ovariya. The village Ovariya is at the distance of about 30-35 kms. from the police station and at least at the distance of about 50-55 kms. from the place of occurrence.
34. PW-8 Bhoor Singh stated that at the time of recovery of ear tops (gold), accused persons or any from among them was not present. From the statement of PW-8, it appears that the recovery of tops was made in absence of accused Galla from his residence, though the prosecution case is that the recovery was made on basis of disclosure made as per Section 27 of the Evidence Act.
35. PW-12 Kishan Singh also states that in presence of him gold tops and a wall clock was recovered from village Ranoji. In most unambiguous terms he stated that while visiting village Ranoji certain family members of the deceased family were also accompanying the police party. He also stated that he did not entered into the house of accused Sohan wherefrom articles were recovered by the police.
36. All these facts depicts that the recovery made and identified by the witnesses was also not of the nature that could have been termed as having no suspicion. As a matter of fact the recovery made from different places without adequate presence of motbirs and also the motbirs brought from distant places creates doubt about their connectivity with the incident of decoity in question. The absence of consistent, cogent and reliable evidence in this regard is quite conspicuous.
37. After giving our anxious consideration to the evidence given by the prosecution witnesses, we do not find the conviction and sentence of the accused persons given by the trial court justified. For the reasons aforesaid, this appeal deserves acceptance and, therefore, the same is allowed. The impugned judgment of conviction dated 3.12.2003 passed by the trial court is set aside and the accused persons viz. (1)Karma son of Natha Gameti (Pargi); (2)Poona son of Natha Gameti (Pargi); (3)Pancha son of Husa Gameti; (4)Dhanna son of Husa Gameti; (5)Lala son of Lumba Gameti; (6)Galla son of Karma Gameti and (7)Sovan son of Kheta Garasia, are acquitted from the charges. They be released from judicial custody forthwith, if not wanted in any other case.