Murli & Anr vs State Of Rajasthan

Murli & Anr. .... Appellants

Versus

State of Rajasthan .... Respondent

JUDGMENT

V.S. SIRPURKAR, J.

1. This Criminal Appeal is at the instance of two accused persons, who stand convicted of

the offences under Section 302 by Trial Court and the High Court. As many as seven persons were

tried for the offences under Sections 147, 148 & Sections 325 and 323 read with Section 149 of the

Indian Penal Code (hereinafter referred to as "IPC" for short) on the allegation that they formed an

unlawful assembly and in pursuance of the common object thereof, committed murder of Virendera

Singh (the deceased), who was serving as a Patwari. In that process, one Lokendra Singh, his

brother, was also injured.

2. Initially, the Sessions Judge convicted accused Murli (A-1), Heera (A-2), Bheru (A-3),

Mohan Lal (A-4), Chhittar (A-5), Kanwar Lal (A-6) and Bhanwar Lal (A-7) for the offences for

which they were charged. Three separate appeals came to be filed on behalf of the accused, they

being D.B. Criminal Appeal No. 248 of 2000, D.B. Criminal Appeal No. 252 of 2000 and D.B.

Criminal Appeal No. 309 of 2000. The High Court, ultimately, allowed the D.B. Criminal Appeal

No. 248 of 2000 and D.B. Criminal Appeal No. 309 of 2000. The High Court dismissed the D.B.

Criminal Appeal No. 252 of 2000 filed by Murli (A-1) and Heera (A-2), but allowed the same

insofar as Chhittar (A-3) was concerned. We are, therefore, concerned only with two accused persons, i.e., Murli (A-1) and Heera (A-2), who are the appellants in the present Appeal, the rest of

the accused having been acquitted by the High Court.

3. The prosecution story, in short, is as under.

The incident is dated 14.9.1987. Lokendra Singh (PW-1) filed a report in the Police

Station that while his elder brother Virendra and one Badri Dhakar were standing at the Paan Shop

of Latur Mali at Bundi Road, Heera S/o Hardev Gujjar, who was armed with Gandasa, Murli S/o

Sunder Brahmin, who was armed with a Lathi and one other person, who was also armed with a

Lathi came near them at Paan Shop. They abused his brother Virendra Singh, whereupon he

(Lokendra Singh) and Virendra Singh asked them not to mishbehave. Just then, 6-7 persons armed

with Lathies, Farsa, Gandasi and knifes cornered Virendra Singh in a lane. Murli gave a lathi blow

on his head and then all of them started shouting, expressing their intention to kill him and started

assaulting Virendra Singh with various weapons. Virendra Singh fell down there itself. Then also,

he was assaulted by Murli and one other person, though Badri Dhakar tried to stop them, which

was futile. After the incident, all of them boarded one tractor of red colour and went away towards

Kota Road, shouting `Jai'. When PW-1 Lokendra Singh saw Virendra Singh, he had already died

and his head and face were injured. He had seen those persons in the light and he could identify

them. On this basis, the offence was registered at the Police Station. After the usual investigation,

all accused persons excepting Bhanwar Lal (A-7) were arrested and the chargesheet came to be

filed against the arrested accused persons, wherein Bhanwar Lal (A-7) was shown as an absconder.

The investigation was kept pending against him. The matter was committed to Sessions Court,

Bundi. When the trial commenced before the Sessions Judge, Bhanwar Lal (A-7) was also arrested

and a chargesheet came to be filed against him after about 3 years of the first chargesheet on

2.1.1990. His case was also committed to the same Court. He was also charged for the same

offences, with which the earlier accused persons were charged on 22.6.1988. The charge against

Bhanwar Lal (A-7) was framed on 8.2.1990. All the accused abjured their guilt. The witnesses,

who were earlier examined like Lokendra Singh (PW-1), Badri Lal (PW-2) were recalled. The evidence of all the witnesses, whose evidence was recorded earlier, was then recorded again.

Ultimately, the Sessions Judge found all the accused persons guilty. The prosecution mainly relied

on the evidence of Lokendra Singh (PW-1) and Badri Lal (PW-2). During the investigation, the

Test Identification Parade was also held since barring the two appellants, no other name was

mentioned in the First Information Report. The evidence of the Magistrate was also recorded.

4. Shri U.U. Lalit, Learned Senior Counsel appearing on behalf of the appellants, pointed

out that the prosecution has not been able to establish its case fully and as many as five accused

persons have been acquitted by the High Court. He, therefore, pointed out that the same witnesses,

whose evidence was disbelieved by the Trial Court could not have been believed by the Appellate

Court, as the sub-stratum of the prosecution story itself was disbelieved. The Learned Senior

counsel secondly pointed out that barring Lokendra Singh (PW-1), the other witness Badri Lal

(PW-2) cannot be believed, as his submission was recorded after considerable delay of over 25

days. The explanation given for this delay is also not satisfactory. It is pointed out that the name

of Badri Lal (PW-2) did not find mention in the First Information Report and, therefore, he is

clearly a set up witness. Insofar as Lokendra Singh (PW-1) is concerned, the Learned Senior

Counsel pointed out that his evidence was also not liable to be accepted, as was done by the High

Court, particularly, when his evidence was disbelieved in respect of the other accused persons. The

Learned Senior Counsel further pointed out that in the Test Identification Parade, Lokendra Singh,

who had earlier named Heera as one of the assailants, had identified accused Bheru and called him

as `Heera'. The Learned Senior Counsel tried to take advantage of the situation and contended that

when he had named Heera, he might have seen only accused Bheru, whom he had identified as

Heera. The Learned Senior Counsel also relied on the record of the Identification Parade to point

out that the error committed by Lokendra Singh in calling Bheru as Heera, was fatal to the case

against accused Heera and hence Heera was liable to be acquitted. Insofar as appellant Murli is

concerned, the Learned Senior Counsel pointed out that as per the prosecution evidence, he had

only given one stick blow on the head of the deceased and, therefore, he could not have had an

intention to commit murder of the deceased and his conviction should be altered from under Section 302 IPC to Section 304 Part II IPC or even under Section 326 IPC.

5. As against this, Shri Milind Kumar, the Learned Counsel appearing on behalf of the

State supported the conviction and pointed out that though the evidence of Badri Lal (PW-2) was

disbelieved by the High Court, this Court still could go into that evidence and if the evidence of

these two witnesses (PW-1 and PW-2) is read together, the prosecution case against these two

appellants stood fully established. The Learned Counsel pointed out that both these witnesses have

stood the test of searching Cross Examination and the Appellate Court had disbelieved the

evidence of Badri Lal (PW-2) only on the ground that firstly, his statement was recorded late and

secondly, that Badri Lal (PW-2) was of dubious character, facing number of prosecutions. The

Learned Counsel pointed out that merely because of these two reasons, the evidence could not have

been thrown, as the Investigating Officer was not even cross-examined and was not given any

opportunity to explain as to why Badri Lal's Statement under Section 161 of the Code of Criminal

Procedure (hereinafter called "Cr.P.C." for short) was recorded late. According to the Learned

Counsel, since Badri Lal was afraid to go to the Police because of his dubious past and had clearly

deposed the same in his evidence, he should have been believed by the Appellate Court and his

evidence should be accepted by us, since he was honest to that extent in owning up the pending

prosecutions against him. As regards the error committed by PW-1 Lokendra Singh, the Learned

Counsel pointed out that there was no substantive evidence on record to the effect that Lokendra

Singh has committed the mistake. The Learned Counsel urged that merely because it was, at one

place, so recorded in the Test Identification Panchanama, that by itself, could not be viewed as

substantive evidence, unless the Magistrate recording the same, had referred to that fact in his

substantive evidence before the Court. It is on this basis that we have to consider as to whether the

High Court was right in convicting the appellants herein.

6. There can be no dispute that the witnesses, as well as, the accused persons have criminal

background. It has come in the evidence of Lokendra Singh (PW-1) that there were two false cases

going on against him and his brother in Kota, instituted by Nayapura Police Station. He also disowned any knowledge regarding the prosecution of his brother for offences under Section 365

and 376 IPC. He also refused to admit that as many as seven cases were continuing against his

brother, instituted by the Police Station Pattan. It has also come in the evidence that accused

persons were no better. Same thing is about Badri Lal (PW-2). He himself admitted that he was

facing some charges and, therefore, he did not depose about the incident because he was afraid of

Police. Therefore, the criminal background, in our opinion, would not be of much consequence,

though while appreciating their evidence, that fact has to be borne in mind. At the same time, it

has to be borne in mind that the two witnesses claimed to be eye-witnesses and Lokendra Singh

(PW-1) had lost his brother. He could not be expected to let off the persons, who were, in fact,

guilty of assault on his brother. In his evidence, he has referred to the strange relations between the

accused and his brother. In his Examination-in-Chief, he has specifically attributed the specific act

to appellants Murli and Heera. Their names very clearly appearing in the First Information Report,

which was immediately lodged. He has also referred in the First Information Report, to the father's

name of both these persons, as well as, Caste and the towns that they belong to. Lokendra Singh

(PW-1) was also injured during the incident and his injuries have been established on record. In

his Examination-in-Chief, he has specifically stated that Badri Lal (PW-2), who was present, was

shouting. It was in his presence that the inquest report, as well as, the spot panchanama were

prepared. He gives a specific explanation as to why he has not noted the number of tractor, in

which the accused had fled. In his cross examination, it has come that he knew Heera and Murli

even before the incident. He was candid to admit in his cross examination that except accused

Heera and Murli, he could not say as to which weapons were handled by each accused. Thus, this

witness had clearly identified Heera in the Court and had also named the accused Heera with

reference to his father and the caste in the First Information Report. Considering that this witness

had given an immediate report within half an hour of the incident and that he has specifically told

the names of Heera and Murli with reference to their fathers and their castes, there was hardly

anything to disbelieve that he did not know Heera and Murli before the incident.

7. We have seen the cross examination very closely. However, we do not see anything worth in the same, at least relating to the main incident. The evidence of this witness was recorded

more than once. Firstly, it was on 1.3.1989, which was continued on 16.3.1989, when Bhanwar

Lal (A-7) had not been arrested. It was again recorded after ten years, on 26.9.1998, after the arrest

of Bhanwar Lal (A-7). Even then, substantive amount of evidence was the same. He identified all

the accused in the Court. His story also remained more or less the same. His cross examination

started on 24.3.1999, where the First part of cross examination was regarding the criminal cases

that he was facing including one murder case, which was still continuing against him. In his cross

examination, which took place after about 11 or 12 years, he was specifically asked on the subject

of Identification Parade. He had definitely committed some errors by saying that Heera and Murli

were also put in for the Identification Parade that day, which was not a fact. The concerned

Magistrate has deposed that they were not put for Identification Parade, as their identity was

already established in the First Information Report. All that the witness was asked was about

Exhibit P-28, the Identification Panchanama and he admitted that whatever was written in

Panchanama, was correct. From this, the Learned Senior Counsel Shri Lalit urged that a sufficient

opportunity was given to this witness. We will go into that aspect a little later. However, suffice to

say that insofar as the basic incident is concerned, his evidence has remained unshaken as far as the

present two appellants are concerned. In fact, in his re-appearance, after 11 years, there is hardly

any cross examination on the main incident. He was mostly cross examined on the Panchanama

and some insignificant contradictions were taken out in his evidence. The other contradictions and

omissions were as regards the accused Bheru (A-3), with whose case, we are not concerned here.

Therefore, the evidence of this witness has remained unshaken in respect of the actual incident.

8. Same is the case of Badri Lal (PW-2). We are quite mindful of the fact that the

statement of Badri Lal (PW-2) was recorded extremely late, i.e., after about 25 days of the incident.

Strangely enough, no explanation thereof was asked and there is no cross examination of the

Investigating Officer on this issue. This is apart from the fact that Badri Lal (PW-2) very

specifically spoke about his criminal past and explained that since he was afraid of the Police, he

did not go to the Police Station. This witness was also examined, firstly, on 17.6.1989 and in his cross examination, at the first instance, his criminal past was brought out. There can be no dispute

that the witness has a criminal past, but that by itself, may not be sufficient to throw his evidence,

as has been done by the Appellate Court. While we see the impugned judgment, it is evident that

even the statements of other two witnesses, namely, Bajrang Lal (PW-3) and Durga Lal (PW-4)

were recorded after about 23 days of the occurrence of the incident. Those two witnesses turned

hostile and hence, they were not believed. However, insofar as this witness (Badri Lal - PW-2) is

concerned, in Para 22 of the Appellate Judgment, it was held that the delay in recording of his

evidence under Section 161 Cr.P.C. was fatal. The Appellate Court did see that the name of Badri

Lal (PW-2) was there in the First Information Report also, which gave great support to the fact that

he was present. The only reason that the Appellate Court has given is the late recording of his

statement under Section 161 Cr.P.C. and that he was involved in number of criminal cases. We are

also not satisfied with the observation made. Beyond this, the Appellate Court has not dealt with

his evidence at all. The Public prosecutor took us through the evidence of Badri Lal (PW-2) in

detail and we find that there is absolutely nothing to disbelieve insofar as the evidence relating to

the main incident is concerned. He claimed that in his evidence, it has come that he had no dispute

with the accused and rather he was friendly with them. He also claimed that he saved Lokendra

Singh (PW-1). He candidly admitted that he did not go to the Police Station, that was probably

because PW-1 had already gone to the Police Station. The only material omission, which has come

in is about his not having stated in the statement under Section 161 Cr.P.C. that Murli was armed

with Lathi. In his cross examination itself, the position of the accused persons, while assaulting,

has come on the record. As if all this was not sufficient, it has come in his evidence that there was

a 200W Bulb, burning in the lane, the tube lights of the hotel were on and its light was coming in

the lane. It has also come in his evidence that the municipal electric pole from the lane was at a

distance of 45 Feet. Thus, it was in the cross examination that the source of light was brought in.

Second round of recording of his evidence was took place on 17.3.1993. Again, the witness

unmistakably pointed out the roles played by the two appellants and the weapons that they were

armed with. There can be no doubt that the witness was of criminal character and that his statement was recorded later, but even then, if that caution is kept in mind while appreciating the

evidence and if his evidence inspires upon confidence, it is not incorrect to accept such evidence.

However, for that purpose, his evidence has to be scrutinized very closely. This is apart from the

fact that an opportunity has to be given to the Investigating Officer to explain as to why the

statement was recorded late. Applying all these tests, we do not think that his evidence was liable

to be thrown only on the ground that he had a criminal past and his statement was recorded late.

Therefore, we are of the opinion that, applying all these tests, his evidence as against two

appellants, is acceptable.

9. This takes us to the question argued by the Learned Senior Counsel for the appellants

regarding the wrong identification made by Lokendra Singh (PW-1), wherein he had identified

accused Bheru as Heera. We have seen the Exhibit P-28. Exhibit P-28 stands proved by Tara

Chand Soni (PW-15). We have seen the evidence of PW-15 closely. Though Exhibit P-28 is

exhibited on the basis of the evidence of the said witness, he has not stated in his substantive

evidence that Lokendra Singh (PW-1) called Bheru as Heera. It is a comment made by Heera,

which has been incorporated in the document in Column No. 7, which reads as under:-

"Yah Aadmi ladai me majud tha, isliye janta hun. Main iska naam pahle se janta hun."

Thereafter, in Column No. 9, he named the said person as Heera S/o Hardev, Caste

Gujjar, R/o Gamach.

10. We have also seen the evidence of Lokendra Singh (PW-1) very closely on this issue.

Undoubtedly, he has committed an error in suggesting that Heera and Murli were also put in for

Identification Parade, which is not a fact. That was an obvious mistake. This may be because of

the lapse of memory because he has referred to these facts only in the second installment of his

evidence, which was recorded after about 11 years. We do not attach much importance to that,

though the Learned Senior Counsel for the appellants earnestly urged that we must take note of this

mistake. The Learned Senior Counsel for the appellants then invited our attention to the following

sentence in his cross examination:-

"In Exhibit P-28, whatever I have stated before the Magistrate at X to Y, was stated correctly."

From this, the Learned Senior Counsel urged that the witness was given sufficient

opportunity to explain his earlier statement made to the Magistrate and that is how we will be able

to read the contents of Panchanama and accept the same as substantive evidence. We do not agree.

The contents of the Panchanama are not the substantive evidence. The law is settled on that issue.

What is substantive evidence is what has been stated by the Panchas or the concerned person in the

witness box. Again, even if we accept the extreme preposition, anything and everything stated in

the Panchanama can be read as the substance evidence, still the fact remains that in this case, the

witness who has supposed to have made the statement to the Magistrate, is not given an

opportunity to explain the same. The portion marked from X to Y is in Column No. 7 of the

Panchanama, where he had made the statement as above. However, there is no cross-examination

or no question put to him about the contents of Column No. 9, where he has taken the name of

Heera. The statement in Column No. 7 amounts to his previous statement and unless he was

confronted with the statements specifically and asked to explain, such statement cannot be used. It

is trite law that a previous statement of the witness, even if admissible in evidence, cannot be used

against the witness, unless the witness is confronted with the same and his attention is invited. In

his substantive evidence, the witness has never made a statement that he had identified Bheru as

Heera. So much so that there is nothing in the evidence, which suggests that Heera and Murli were

ever identified by him. His admitted case was that he knew Heera and Murli even before the

incident took place. It is an admitted position that Heera and Murli were never put in for

identification in the Identification Parade. Under such circumstances, the insignificant

circumstance in the Test Identification Panchanama to the effect that the witness had identified

Bheru and named him as Heera, cannot amount to the substantive evidence and further it cannot be

used, as that statement was never specifically put to the witness. This is apart from the fact that

even if the witness was confronted with his previous statement, there is other over-whelming

evidence to the effect that witness had in fact known Heera and had identified him and named him

in the First Information Report. We may also point out that a statement that he knew Heera from the beginning and even before the incident took place, has gone completely unchallenged.

Strangely enough, that fact has been brought in his cross examination. We have, therefore, no

hesitation in accepting the evidence of Lokendra Singh (PW-1). We have also given our reasons as

to why the evidence of Badri Lal (PW-2) was also acceptable and that the High Court should not

have rejected the same. Once we see the evidence of Badri Lal (PW-2), there are hardly any inter

se contradictions in between the evidence of Lokendra Singh (PW-1) and Badri Lal (PW-2). In

that view, the active role played by Heera and Murli is obvious.

11. The Learned Senior Counsel for the appellants further urged that Murli had given only

one blow and there could not be an intention of committing murder. It has come in the evidence of

Dr. Vinod Kumar Dhingra (PW-10) that besides the incised wounds, the deceased also suffered the

fracture. What was tried to be argued by the Learned Senior counsel was that Dr. Vinod Kumar

Dhingra (PW-10), in his evidence, had stated that the deceased had died on account of asphyxia

due to complete incised injury to trachea. The Learned Senior Counsel tried to argued that if this

alone was the injury resulting in death, then some advantage should be given to Murli who was

merely handling a Lathi. The accused persons, as per the charges, were charged with the offence

under Section 302 substantively. In addition to that, all the accused were also charged with the aid

of Section 149 IPC. It is obvious that both the appellants had specifically taken part in the assault,

their presence was established, their overt acts were also established. It was further established that

while Heera had given the blows with the aid of a sharp edged weapon, Murli had assaulted the

deceased with Lathi on the head. In that view, both the accused can be convicted. The High Court

in the appellate judgment, however, has not discussed any of these aspects and has merely chosen

to dismiss the appeal and thereby confirming the conviction ordered by the Trial Court with the aid

of Section 149 IPC. That undoubtedly was incorrect. The High Court ought to have given a

specific finding. However, the fact remains that these two appellants were found to have inflicted

the injuries with sharp edged weapon, as well as, Lathi. They have also been individually charged

with the offence under Section 302 IPC. In that view, they were bound to be convicted for the

offence under Section 302 read with Section 34 IPC. They came together on the spot, they also gave abuses to the deceased and thereafter, acted along with each other. Therefore, we have no

hesitation in upholding the conviction, but not with the aid of Section 149 IPC, but with the aid of

Section 34. Unfortunately, the High Court has not discussed this aspect of the case. We, therefore,

find no merits on this ground.

12. We, therefore, hold that the appeal has no merits and has to be dismissed. It is

accordingly dismissed.

..............................J. [V.S. SIRPURKAR]

.............................J. [CYRIAC JOSEPH] NEW DELHI August 18 , 2009.