HANUMAN AND ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal against the judgment dated 12th July, 1977 passed by the learned Sessions Judge, Balotra whereby he convicted the accused -appellants Hanuman, Uma and Moola, all sons of Maga resident of village Nateria Tehsil Chautan District Barmer, for having committed offence under Section 302/34 IPC of murdering Rekha and sentenced them to imprisonment for life.

(2.) THE prosecution case as disclosed in the F.I.R. dated 9.12.1976, lodged by Thana, brother of deceased Rekha, at 1 -30 A.M. is that complainant was informed by Ganga PW 2 that his brother Rekha is being beaten by Hanuman etc. in the field of Maga. Ganga had come to inform Thana on hearing the cries of Rekha. On receiving the information, complainant Thana PW 1 reached the field of Maga and found that Rekha was lying on the way leading to the field of Maga. His clothes were blood stained. Tikma and Sona were sitting by Rekha. On being enquired from Rekha, he informed that Hanuman, Moola and Uma, accused appellants of sons of Maga, have beaten him by lathies. On being asked about the reason, Rekha further stated that he had quarrel with Hanuman's brother Uma in the morning and because of that, Hanuman has threatened that he will not be spared today. While Rekha was being taken to hospital at chautan for treatment, he died oh the way and dead body was taken to Police Station.

(3.) WE have heard learned Counsel for the parties and perused the record. The learned Sessions Judge has relied on the statements of Thana PW1, Ganga Ram PW2, Sona PW3 and Tikma PW 4 in support of his finding of guilt against the accused appellants. PW 1 Thana is not an eye witness. He has admittedly reached the scene of the occurrence as a result of information, given to him by Ganga Ram PW2, much after the alleged incident had taken place. His statement is only of derivative knowledge. According to him, when he reached there, Sona and Tikma were sitting by the side of Rekha. He did not make any enquiry from Sona and Tikma but asked only Rekha and Rekha, according to him, informed that the accused appellants have given him beating by lathies. The question is that how much reliance can be placed on the alleged dying declaration, made by Rekha to this witness. Before we examine this aspect, two things may be noticed from the statement of this witness. He has categorically stated that 'dhani' of Ganga is about 100 'pawandas' away from the scene of the occurrence and nothing can be heard and seen from the ' dhani' of Ganga as to what is happening at the scene of the occurence. Ganga also himself admits that he has not seen the occurrence but he only on hearing the cries of Rekha, rushed to Thana for calling him. If according to PW 1, Ganga was not at a place where he could hear the cries of Rekha or see anything the very foundation of his story to comes through with doubt. Atleast, it can be said that there could not have been any information about the suspected assailants as he has not seen nor he could have heard anything of the incident from the scene of the occurrence at the place where he was. The conduct of PW 2 Ganga also appears to be abnormal and against the probable course of human conduct. He is a boy of thirteen years. He has stated that the time of the occurrence he was at his field. Instead of rushing to the scene of the occurrence on hearing cries of -Rekha, he rushed towards village for calling Thana. He does not even thereafter accompany Thana to the scene of the occurrence after informing him. His statement cannot be believed if statement of PW 1 is to be believed that nothing can be heard and seen from the field of Maga. PW 1 Thana has also stated that 'dhani' of Maga is about 300 'pawandas' away from his own 'dhani' that is to say much far from other neighbouring 'dhenies' of Ganga and Lakha. It may also be noticed that while in F.I.R., Thana has stated on the basis of information, given by none other than deceased Rekha that he was beaten by lathies only. In the statements of Thana, Sona and Tikma, the story of beating given by Moola with axe has been introduced at a later stage. While according to Thana PW 1, when he arrived at the scene of the occurrence, Rekha was conscious and he only informed as to who has given him the beating and in the F.I.R. the only weapons, attributed to the assailants were lathies, in his statement in the Court, Thana has stated that he remembered after 5 -6 days that Rekha had an axe with himself which he had forgotten to inform the police. He informed the police after five days that Rekha also had an axe. The axe alleged to have been recovered at instance of accused persons is stated to be axe belonging to Rekha and the trial Court has tried to explain away this discrepancy by assuming that Rekha must have become unconscious as a result of beating, given by Moola. If the assumption of trial Court is accepted to be plausible then it has to be assumed that Rekha was not in a state of consciousness as to give any statement when Thana reached there. In this connection, it will also be pertinent to notice that while F.I.R. is alleged to have been recorded at 1.30 A.M. on 9.12.1976 immediately when the body of Rekha being taken to police Station, but in his statement, PW 1 Thana is categorical that F.I.R. was not recorded immediately but recording of the F.I.R. was postponed till later in the day. While F.I.R. is alleged to have been recorded at 1 - 30 A.M. on 9.12.76, it has reached the Court only on 14.12.76 that is to say after five days. Alongwith this extra ordinary delay in reaching the F.I.R. in the Court, there are strong circumstances which provide the legitimate basis for suspecting that F.I.R. was recorded much later than the stated hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of occurence. Reference in this connection may be made to a decision of their lordships of the Supreme Court in Ishwar Singh v. : 1976CriLJ1883 . In this case, this suspicion is further hardned by the statement of PW 1 Thana himself when he categorically admits that F.I.R. was not recorded at 1.30 A.M. but he was told that it will be recorded later -on in the day and this suspicion is further strengthened from the fact that story of beating, given by axe, has been introduced later -on and there has been a recovery of axe belonging to Rekha at the instance of accused persons. In these circumstances, we are of the opinion that dying declaration attributed to Rekha by PW 1 Thana cannot be accepted on its face value unless it is corroborated by other piece of evidence.