MOHAN LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These appellants were convicted under Section 302/34, IPC and sentenced to imprisonment for life for having caused the murder of Hari Ram on 17-10-1991. The prosecution case is to the effect that the father Moti Lal and son the deceased were together irrigating their field and then on early morning the son went to the well of Kalu Ram and at that place, the three accused persons started beating with weapons in their hands. The father, who was following the son, saw the accused persons beating and running away. According to the FIR version, the father then carried the dead body to his house and then went to the police station to lodge the report. The police on the basis of the FIR started investigation and after completion of investigation submitted the charge-sheet. On being committed, the accused persons stood their trial. The prosecution case hinges upon the sole testimony of PW 7 the father of the deceased, who is supposed to have seen the occurrence and narrated the incident in the FIR as well as in his evidence in Court. The learned Sessions Judge as well as the High Court treated the evidence of said eye-witness to be a wholly reliable witness and based the conviction on the said testimony.

(2.) It is contended before us by the learned counsel for the appellants that the evidence of Moti Lal PW 7 bristles with infirmities, and omissions and contradictions with reference to earliest version recorded under Section 161, Cr. P.C. and inconsistent with the other evidence on record and therefore the said witness by no stretch of imagination can be said to be a wholly reliable witness on whose testimony the conviction can be based in a serious charge of murder. That apart, the learned counsel also contended that there are several other infirmities in the prosecution case as inferred from the evidence of the aforesaid witness which brings serious doubt about the entire prosecution case. According to the evidence of this witness he had gone to the police station from house and gave a report whereafter Thana Babu had gone to the place of occurrence and at the place of occurrence a written report was given. But the prosecution has suppressed the so called earlier report alleged to have been given by the witness at the police station. This has got some significance from the suggestion that was put to the effect that in the earlier version it had not been stated by the witness either he has seen the occurrence or these accused persons assaulted the deceased. The place from where the occurrence took place and the place where ultimately the dead body of the deceased was found and postmortem was conducted is also at variance and the prosecution has not offered any explanation as to how the dead body was brought from the place of occurrence near the well to the Babool tree near the school where the postmortem was conducted. The learned counsel for the respondent Mr. Jain on the other hand contended that the evidence of PW 7 has been accepted by two Courts of fact and has been held to be trustworthy and therefore there is no justification for this Court to re-appreciate the evidence and come to the conclusion other than the conclusion arrived at by the Courts of fact. It is true that ordinarily this Court does not appreciate evidence where two Courts have already appreciated the same. But in a serious charge of murder on whose testimony the conviction on a charge of murder is based, this Court would be faling in its duty if for the purpose of satisfying as to whether the Courts below were justified in placing reliance upon the said testimony will not examine the same. In the aforesaid premises, we have ourselves scrutinised the evidence of PW 7, who is supposed to be the sole eye-witness and the father of the deceased, and on examining the same we have noticed several infirmities in his testimony and therefore it is difficult to place implicit reliance on the said testimony on which the conviction can be based. As has been stated earlier the witness categorically stated to the fact that he had given two statements, one at the police station and other after the Thanedar came to the occurrence and called Radhey Shyam Lohar and got a report written by Radhey Shyam Lohar. We fail to understand why Thanedar took interest in calling somebody else for written report by it and when he himself had gone to the police station and given a report obviously orally the so called earlier report is not coming on record and the reasons for non production of said report is best known to the prosecution. No explanation has been offered as to why earliest version has not been brought on record. The learned Sessions Judge as well as the High Court was of the opinion that this is a confusion and there has been only one report as Ext. P7, as has been stated by the investigating officer. But in view of the categorical statement of PW 7 it is difficult to accept the said conclusion of the Courts below. Then, again no plausible explanation has been offered as to how the dead body was brought from the place of occurrence which is the well to the Babool tree near the school in the village where the post mortem was conducted. The witness PW 7 has also made several omissions and contradictions from his earliest version under Section 161 and (sic) have been duty confronted also while in the cross-examination. Only explanation is the earliest version is wrong. In the aforesaid premises, we have no hesitation to come to the conclusion that the evidence of this witness is tainted one and no reliance can be placed on the same. When the evidence of PW. 7, the sole eye-witness, excluded from consideration, on the residue of evidence no conclusion in a charge of murder can be based and it must be held that the prosecution has failed to establish the charge beyond reasonable doubt. We therefore set aside the conviction and sentence against the appellants and acquit them of the charges levelled against them. The appeal is allowed. Bail bond stands discharged.