Madan Lal and anr. Vs. State of Rajasthan - Court Judgment

Excerpt:
- - ram niwas meena (pw-10) which clearly establishes falsity of the prosecution case in regard to time of incident. p-19) clearly shows that entire stomach and small intestines of deceased were empty which would indicate that at the time of murder the deceased had not taken his evening meals and his murder must have taken place after few hours of taking morning meals. the prosecution has failed to establish the time and place of incident.shiv kumar sharma, j. 1. as many as a 5 accused were indicted before the learned sessions judge tonk in sessions case no. 58/1997 for having committed murder of hansa, learned trial judge vide judgment dated april 27, 2000 convicted and sentenced the appellants madan lal and danmal for the offence under section 302 read with 34, ipc to suffer imprisonment for life and fine of rs. 500/-, in default to further suffer six months imprisonment. co-accused bhanwar lal, ramdev and babulal were however acquitted.2. the brief facts of the prosecution case necessary for the disposal of this appeal are that on may 28, 1997 around 7.00 p.m. when hansa (now deceased) had gone to ease himself out side the house just after taking food, five accused including the appellants belaboured him and inflicted knife-blows on his person which resulted in his death. ramdev (pw-4), babu lal (pw-3) and kalu ram (pw-7) were named as eye-witnesses of the occurrence by the informant ram prakash (pw-1) who submitted written report with the police station, aligarh, district tonk at 10.30 p.m. on the said day. a case under sections 147, 148, 149 and 302, ipc was registered and investigation commenced. on completion of the investigation charge-sheet was filed. in due course the case came up for trial before the learned sessions judge, tonk. charges under sections 147, 148, 149 and 302, ipc were framed. the appellants denied the charges and claimed trial. the prosecution in support of its case examined as many as 12 witnesses. in their explanation under section 313, cr.p.c., the appellants claimed innocence. no witness in defence was however examined. learned trial judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.3. mr. manzoor alam, learned counsel appearing for the appellants canvassed that trial judge has seriously erred in not noticing the medical testimony of dr. ram niwas meena (pw-10) which clearly establishes falsity of the prosecution case in regard to time of incident. learned counsel urged that the incident in question could not have happened at 7.00 p.m. and must have happened much earlier in the day which was not noticed by the learned trial judge only subsequently when the body of deceased found, the appellants were implicated in the case by the near relatives of the deceased and they became eye-witnesses of the occurrence. learned counsel further contended that there is serious doubt about the place of incident as according to informant ram prakash (pw-1) the incident occurred only 7 steps away from his house, whereas ram dev (pw-4) deposed that the incident had occurred in his bada. learned counsel further contended that the alleged eye-witnesses are near relatives of deceased and in view of material improvements and embellishment in their testimony at the trial, they cannot be relied upon. reliance is placed on moti etc. v. state of u.p., 2003 cri lj 1694 : (air 2003 sc 1897).4. per contra, mr. b. m. sharma, learned public prosecutor supported the impugned judgment and contended that the inconsistencies shown by learned counsel for the appellants are minor in nature and the eyewitnesses examined at the trial were rightly believed by the trial judge.5. at first, we may catalogue here certain admitted or undisputed facts appearing in the prosecution evidence itself. these are :--(i) the informant ram prakash (pw-1) the brother of the deceased in his cross-examination admitted that after taking the meals hansa had gone out of his house for easing himself and just after 15 minutes the incident had occurred at the distance of 5-7 steps from his house.(ii) ramdev (pw-4), uncle of deceased, on the other hand deposed that hansa came to his house and after talking with him for few minutes he had gone to ease himself in his babad on hearing hue and cry he went out and saw the appellant inflicting knife-blows on his person.(iii) according to dr. ram niwas meena (pw-10), who conducted autopsy on the dead body of deceased, the stomach and small intestines of deceased were empty and large intestine was full of fickle matter.(iv) ram prakash (pw-1) and kalu ram (pw-7) are real brothers of deceased, whereas ramdev (pw-4) is real uncle and babu lal (pw-3) is his cousin, rajvanti (pw-9) is wife of ramdev (pw-4).(v) a look at the fsl report (ex.p-29) demonstrates that on the knives although human-blood was found but the blood group could not be determined. 6. having carefully scanned the material on record, we noticed that there is serious block in the prosecution case as to the time of incident. according to prosecution the incident had occurred around 7.00 p.m. after the deceased had taken his meals. but post mortem report (ex.p-19) clearly shows that entire stomach and small intestines of deceased were empty which would indicate that at the time of murder the deceased had not taken his evening meals and his murder must have taken place after few hours of taking morning meals. a look at the statement of dr. ram niwas meena (pw-10) shows that fickle material found in the large intestine, which would show that the deceased had taken his meals 7-8 hours earlier. therefore, it is possible that the deceased was done to death much after his morning meal and much before his evening meal. if this be the fact then there is serious doubt on the prosecution case, which would indicate that the prosecution case is not true.7. in regard to place of incident there is material inconsistency in the statement of ram prakash (pw-1) and ramdev (pw-4). as already noticed ram prakash (pw-1) stated that the incident occurred at 7 steps away from his house, whereas ramdev (pw-4) deposed that the incident had occurred in his bada. it is established from the record that ram prakash and ramdev do not live together but resided in their independent houses. testimony of roshan singh (pw-11) also creates doubt about the place of incident, when he says that the incident had occurred at 100-150 yards away from the house of deceased. these discrepancies affects the credibility of eye-witnesses who are near relatives of deceased.8. from the point of view of trustworthiness and truthfulness when we scan the testimony of ramdev (pw-1), babu lal (pw-3), ramdev (pw-4), kaluram (pw-7) and smt. rajvanti (pw-9) we find that they are no the witnesses of sterling worth. in the instant case where the time of death of deceased was a material factor, it was obligatory to prosecution to have clarified the discrepancies between the medical evidence and oral evidence. the prosecution has failed to establish the time and place of incident. on a complete and comprehensive appreciation of all vital features and the entire evidence with broad and reasonable probabilities of the case we found that the ocular testimony about the time and place of incident cannot be relied upon. there is a serious doubt about the time and place of incident and therefore the presence of eye-witnesses at the time of incident becomes doubtful. we are thus of the opinion that the view of learned trial judge in convicting and sentencing the appellants is wholly erroneous. moti v. state of u.p. (2003 cri lj 1694) (sc) (supra) was the case where there lordships of the supreme court in a similar situation gave benefit of doubt to the accused and the ratio indicated in moti's case is squarely applicable to the facts of the instant case.9. as a result of above discussion, we allow the appeal and set aside the impugned judgment dated april 27, 2000 of learned sessions judge, tonk. we acquit the appellants of the charges under sections 302 read with 34, ipc. both the appellants are in custody, they shall set at liberty forthwith if not required in other case.