Laxman and ors. Vs. State of Rajasthan - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 4. we have heard the submissions of learned counsel for the appellants as well as learned public prosecutor and carefully weighed the material on record. when they were not found reliable qua similarly situated six co-accused, no conviction could be recorded against the appellants.shiv kumar sharma, j.1. this appeal impugns the judgment dated june 7, 2003 rendered by learned additional sessions judge no. 1 (fast track) dholpur in sessions case no. 67/2002 (consolidated sessions case no. 68/2002), whereby the appellants (herein after described as 'accused') were convicted and sentenced as under:-narayan:under section 302 ipc:to suffer imprisonment for life and fine of rs. 500/-, in default to further suffer rigorous imprisonment for one month.laxman & roshan:under section 323 ipc:each to suffer rigorous imprisonment for three months.2. as per the prosecution story, the sho police station diholi recorded parcha bayan of ramdas (pw.1), wherein he stated that today in the morning at 7.30 am while he was pouring fertilizer with ramnath, gomti and dhani ram the neighbouring field holder narayan mallah dismantled the wall of the field, which was objected by dhani ram. thereupon narayan started abusing and asked roshan to call persons from the house. roshan called laxman, tarayan, nihal singh, bhagwan singh, vijay singh, rameshwar and mawasia. bhagwan singh and roshan were having gun in their hands. roshan gave the gun to narayan. tarayan was armed with katta (country made pistol) and others were having lathis. narayan fired gunshot at dhani-ram, bhagwan singh made another fire and tarayan made fire by katta (country made pistol) which pallets hit at ramnath. thereafter the accused person ran away. the incident was witnessed by dhani ram and gulab singh. dhani ram, ramnath and gomti were removed to the hospital, in the way dhani ram died. case under sections 302, 307, 147, 148 and 149 ipc was registered and after usual investigation charge sheet was filed. in due course the case came up for trial before the learned additional sessions judge no. 1 fast track dholpur, charges under sections 147, 148, 323, 302/149 ipc were framed against the accused, who denied the charges and claimed trial. the prosecution in support of its case examined as may as 17 witnesses. in the explanation under section 313 cr.p.c., the accused claimed innocence. no witness in defence was however examined. learned trial judge on hearing the final submissions convicted and sentenced the accused as indicated herein above.3. before proceeding further we deem it appropriate to refer to the post mortem report (ex.p-17), according to which deceased dhani ram sustained following injuries:-'1. punctured wound 2cm x 2cm, inverted margins in the (l) iliac fossa 31cm from umblicus;(2) punctured wound 2cm x 2cm with inverted margins in the (l) lumber region 49cm from the mid line of the abdomen.(3) punctured wound 2 in number with inverted margins over the (l) posterior superior iliac spine.(4) punctured wound 14cm x 12cm over the middle of the (l) back 1' lateral to spine with blackening around the wound present.(5) abrasion 1' x 1/4 over the lower 1/3 anterior surface (l) leg.(6) abrasion 1/2 x 1/4 over the anterior space (l) ankle joint.'the cause of death as per post mortem report (ex.p-17) was gunshot injuries to the vital organs of the body, haemorrhage and shock.4. we have heard the submissions of learned counsel for the appellants as well as learned public prosecutor and carefully weighed the material on record.5. it appears that as many as 9 accused were tried by the learned trial judge, out of which rameshwar, nihal singh, mawasia, bhagwan singh, vijay singh and tarayan were given benefit of doubt. the prosecution story qua the said accused was not believed and they stood acquitted.6. on a careful appraisal of the prosecution evidence we find that the star witness of the prosecution changed their statements at every stage. informant ramdas (pw.1) deposed in the trial court on october 22, 1994 that on being asked by narayan, roshan had called laxman, bhagwan singh, tarayan, vijay singh, rameshwar, nihal singh and mawasia. roshan, then gave his gun to narayan. bhagwan singh and tara were armed with firearms while others had lathis. after surrounding the informant and his family members, roshan and laxman gave lathi blows to dhani ram and when gomti and ramnath intervened they were also assaulted with lathis by vijay singh, roshan and ramesh. thereafter narayan, bhagwan singh and tara opened fire and injured dhani ram and ramnath.when ram das (pw.1) was recalled by the learned trial court on february 7, 2002, he took 'u turn' and deposed thus:-^^esa fnukad 22-10-94 dks hkh c;ku nsus vk;kfkk a esaus ml fnu uks vknfe;ksa dk eksds ij vkuk o hkxoku flag ij cunwd o rjk;uij dvvk gksuk o mu lhkh ds }kjk gesa ?ksjuk xyr fy[kk;k fkk a mlesa esus jes'k ofot;flag }kjk ykfb;ksa ls ekjuk] ihns ls /kuhjke ds cunwd hkxoku flag }kjk ekjuk]nwljk qk;j dvvk }kjk /kuhjke ij rkjk }kjk fd;k tkuk vksj mlds jkeukfk ds yxukesaus xyr fy[kk;k fkk a** 7. goma (pw.3) appears to have been examined by the police thrice and she in her police statements named nine accused persons, but in her deposition at the trial she disowned her police statements and made attempt to implicate only narayan, laxman and roshan.8. ramnath (pw.4) also stated in the trial court on august 24, 1995, that bhagwan singh, roshan, laxman, narena, tara, nehna, ramesh, vijay singh and mawasia came and narena, bhagwan singh and tarayan opened fire at dhani ram, but when he was recalled on december 5, 2002 and confronted with his earlier deposition made at the trial he stated thus:-^^ogka y{e.k] jks'ku o ujsuk ds vykok vksjdksbz ?kvuk lfky ij ugha fkk u vksj dksbz vk;k fkk u fdlh us ekjihv easa fgllkfy;k fkk a** 9. this is how the injured eye witnesses behaved at the trial ignoring the sanctity of oath. they gave clean chit the six accused persons and deposed only against three appellants. initially fire arm injuries on the person of the deceased were attributed to two persons but subsequently one bhagwan singh was exonerated. how such witnesses who were in the habit of changing their statements at every breach, could be relied upon. it is no doubt true that every effort should be made to disengage the truth from the falsehood but where the grain cannot be separated from the chaff there is no question of separating again from chaff. from the prosecution evidence it is evident that the prosecution picked up only the three appellants and their involvement appears to be doubtful and purposeful, therefore the testimony of the witnesses gets tainted and blemished. learned trial judge in our opinion, did not properly appreciate the evidence and committed illegality in placing reliance on the testimony of prosecution witnesses. having scanned the testimony of ramdas, goma and ramnath from the point of view of trustworthiness we find it highly polluted and no reliance can be made on it. when they were not found reliable qua similarly situated six co-accused, no conviction could be recorded against the appellants.10. for these reasons we allow the appeal and set aside the impugned finding of conviction and sentence arrived at by the learned sessions judge. we acquit appellant narayan of the charge under section 302 ipc and appellants laxman and roshan of the charge under section 323 ipc. appellants laxman and roshan are on bail. they need not surrender and their bail bonds stand discharged. appellant narayan, who is in custody, shall be set at liberty forthwith, if not required to be detained in any other case.