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PETITIONER: MOHAN, YASHIN, DULI CHAND, BALBIR SINGH

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       15/01/1997

BENCH: G.N. RAY, FAIZAN UDDIN

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 191 OF 1987                             WITH                CRIMINAL APPEAL NO.192 OF 1987                             WITH                CRIMINAL APPEAL NO.450 OF 1982                       J U D G M E N T G.N.RAY. J.      These appeals  arise out  of the  common Judgment dated October 11.  1985 passed  by the  High Court of Rajasthan at Jodhpur  in  D.B.  Criminal  Appeal  No.788  of  1974.  D.B. Criminal Appeal  No.89  of  1973  assailing  the  Judgmental Sessions Judge.  Court by  which the appellant Balbir singh. Yashin, Duli  Chand and  Mohan were convicted by the learned Additional Sessions  Judge under  Section 147. 302 read with Section 34 I.P.C. and each of the said accused was sentenced it buffer one year’s rigorous imprisonment under Section 147 and impressment  for life  under Section  302.  The  accused mohan was  further convicted  under Section  404  I.P.C  and sentenced to suffer two years rigorous imprisonment and also a fine  of Rs.500/-.  In default  of payment of fine further riggers imprisonment  for six months. the learned Additional Sessions  Judge   directed  that  the  sentences  would  run concurrently.      Against the  said Judgment. there separate appeals were preferred by  the convicted  accused before  the high  Court being D.B.  Criminal Appeal  No.785 of  1974  D.B.  Criminal Appeal No.64  of 1975  and D.B.  Criminal Appeal  No. 817 of 1975. all  the said  appeals were  cussed of  by the  common Judgment sine  Impugned in  these appeals  by dismissing the said appeals  and maintaining  the conviction  and sentences passed by the learned Additional Sessions Judge.      On February  24, 1974,  Pw. 1  Surja Ram the brother of the  deceased   Ram  lacked   F.I.R.  with  Police  Station. Sardarsanar, to  the effect  that at  about  10.00  A.M.  on February 24,  1974 their  was a rumor in the village Mitasar that a  dead body was living in the Tail located outside the village Mitasar.  According to Surja Ram. P.W.S. Musmat Mail had identified  the dead  body as  then of her husband Ramu. When Surja  Ram caused annuity. one told that previous night

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at about  10 to  10.50 the  accused Mohan and another person not know to her had come to her hours. she had served tea to those persons and the said persons had told her husband that a truck  of sugar  was standing  near the  Tail and Ramu had taken money with him to purchase the supra. Her husband Ramu went with  the said  persons after taking Rs.200/- with him. Thereafter. Ramu  did not  return to his house but was found to be dead in the Tail on February 24. 1974.      On the  basis of  the said F.I.R.. a case under Section 302 was  registered by  the police and on February 28. 1974. The police  arrested  the  accused  Balmukand.  Mohan.  Duli Chand. Yashin  and Balbir Singh . It may be stated here that the accused  Balmukand later  on  became  the  approver  and deposed as  PW.12. According  to the  prosecution  case.  on March 3. 1974. at the instance of accused Yashin. Police had recovered a  lathe stated to have been used in the crime and on the  very same  day at  the instance  of  other  accused. Police had  recovered a  day (sharo edged weapon) alleged to have been  used in committing the crime. On March 4, 1974. a test identification  parade was  held and  Muscat  Mali  had identified the  accused Balbir  Singh. Balmukand Intended to become accorder  in the  case and his statement was recorded under Section  161 Criminal  Procedure Code and on March 13. 1974 the  statement of  Balmukand was recorded under Section 164 Criminal  Procedure Code  by the  concerned  Magistrate. Ultimately. on  March 29.  1974 Balmukand  was  collared  as approver in the case.      All the  said four  accused faced  the trial before the learned Additional  Sessions Judge under Section 147. 302/3. 404 I.P.C.  PW.12 Balmukand.  the add  rover. has deposed to the effect  that in  the month of January. 1974. about 20 to 25 day  before 20th  February,  1974.  the  said  Balmukand. Mohan. Duli  Chand. Yashin  along with  three other persons. namely, Pranav  Ranjan. Kamal  Bhomik  and  Raju  Soni.  had assembled in  the Nehru  Park at Sarcarsanar for planning to commit dacoity.  It was planned that initially petty acuity. In that  meeting  Mohan  had  mentioned  about  one  of  his relatives living  in the  village Miramar  who  had  lot  of silver and  money. Mohan  had suggested to collect the money from the said relative and to kill him put that than was not executed because  the absorber  Balmukand  had  backed  out. Balmukand had  further deposed  that on  February  20.  1974 which was a Shivratri day. the accused Mohan. Duli Chand and the said Balmukand and Balbir Singh pranad Ranjan. Kamal had assembled to celebrate the marriage of Raju Soni in the room of Kamal  Bhomik  which  is  located  in  the  Johnson  Bulb Factory, Bardarsanar.  All of  them had  a lot of drinks and Raju Soni  become tiosy  and vomitted.  At that  time Mohan. Yashin. Duli  Chand. the absorber Balmukand and Balbir Singh tame out of the room of Kamal Bhomik and they had decided to go the  Miramar for  committing the  dactyl but as they were heavily  drunk.   the  approver   and  Duli  Chand  made  an unsuccessful attempt  to start  a car  standing outside  the Factory and  all the  said persons  came to the Tail located outside the  said factory  where they made an attempt to rod one <??>  but nothing  was  found  from  him.  According  to Balmukand. Mohan  was armed  with a  Day. Yashin with a lath and Balbir  Singh with a bestow. After an hour or so. Yashin and Balmukand went to their respective houses out Duli Chand and Balbir  Singh had goner to the house of the because Ramu gritted in the village Miramar. It is said that Ramu and his wife had  served the  said persons  with tea and so they did not decide  to rod  Ramu but  the said persons had told Ramu that within a day of two. they would be getting one cruet of sugar and asked him to keep the money ready.

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    The approver further <??> that in February 23. 1974, at about 6.00  P.M. Balmukand.  Yashin. Duli  Chand and  Balbir Singh assembled  at the  house of  the other  accused  Mohan where they  had drinks  and meal. The approver Balmukand had brought two  bicycles one  belonging to  him and  other from Pranav Ranjan  and  he  also  brought  one  cost  from  him. According  to   Balmukand.  Third  curve  was  arcaded  from Giranar. On  the said  bicycles they had gone to the village Miramar  at  about  10  to  10.30  P.M.  the  accused  Mohan entreated them  to commit  dactyl on  Ramu. Balmukand.  Duli Chand and  Yashin stayed  pack at  the tail  of the  village Miramar and  the accosted Mohan and Balbir Singh went to the house of  Ramu to  bring Ramu  there. At  the house  of Sam. Mohan and  Balbir Singh  were treated  with tea  Mohan their told Ramu that near the Tail of the Village Miramar. a truck load of sugar was standing and Ramu should take money to day sugar. thereafter, Ramu took a sum of Rs.200/- and went with then where  the three  persons were  within. Duli Chand then told Ramu  that a Deed had come and thereafter the tract had been sent away. The approver Balmukand had also deposed that approver encircled  Ramu and on Mohan saying that work would be started immediately, Balbir Singh had caught hold of Ramu from benign  and Duli Chand gave lathe blow to the deceased. The said  approver had deposed to the effect that Mohan also started inflicting  blows on  Rampant Ramu  fell  down.  The approver at  that time  had caught  hold of the legs of Ramu and Duli  Chand inflicted blows with Day. Mohan tried to cut the throat  of Ramu  out as  he could  not go so. Uashin had headed him  in cutting  the throat of Ramu. According to the approver. the  accused Balmukand  and the  said approver did not inflict any injury to the deceased. The approver further deposed that after seeing that the throat of Ramu is cut. he felt uneasy  and he raised a false alarm that some light was coming from  the side  of village  Miramar. Thereafter. they left the  side of village Miramar. Thereafter. they left the scene of  occurrence in  great nasty  and came on the nearby road. The  approver further deposed that Mohan had taken out Rs.200/- from the pocket of deceased Ramu. The approver also deposed that  after they reached the road side. they started moving towards  Sarcarsanar and  when they  had covered  the distance of  about 2  1/2 miles  from  the  Tal  of  village Mitasar. They  saw a car coming from the village Mitasar. At that time.  they come  arcades two  persons who  were coming from the  village Sawal.  One of those two persons had aside Mohan as  to wherefrom  they had  been coming  and Mohan and replied that  they were coming after doing some Banker work. All the  five persons  thereafter returned to Sarcarsanar in three separate groups on three bicycles.      Mr. Lalit.  learned senor  counsel  appearing  for  the appellant Balbir Singh in Criminal Appeal No.65 of 1986. has submitted  that  the  prosecution  case  was  sought  to  be established on  the basis  of the  deposition of  one single witness. namely,  the approver Balmukand PW.12. Mr.Lalit has submitted that  where a  case is sought to be established on the basis  of a single witness. It must be ensured that such witness is  wholly reliable.  Mr.Lalit  had  contended  that PW.12  Balmukand   is  an   approver  and  his  evidence  is essentially tainted. PW.12 attempted to minimise his role as much as  possible and  made an  attempt to ascribe the roles begging played  be the  other  accused.  Mr.Lalit  had  also submitted that  the principal  act of  causing injury on the deceased has  been ascribe  to Mohan. Yashin and Duli Chand. It had  been submitted  by Mr.Lalit that PW.12 Balmukand has made an attempt to give an impression that he was an uniting participant and  he had  played a  very minor  rice so as to

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make himself  a conspirator.  According to Mr.Lalit. it will be unsafe to rely on such evidence of the approver PW.12 The said PW.12  had also  involved two  others.  namely.  Pranad Ranjan and  Raju Soni  although they were not present at the time of  commission of  the Of fence. PW.12 had also deposed that he  did not get money out of the dacoity and killing of Ramu. Such evidence cannot be accepted being contrary to the purpose of  conspiracy and  commission of  the of  fence for collecting  money   from  the  deceased.  Mr.Lait  has  also submitted that  there is contradiction about the weapon used to commit  the under  of Ramu because both day and <??> were mentioned.  So   far  as   the  appellant  Balbir  singh  is concerned. Mr.  Lalit has submitted that Balbir Singh had no weagon and  he had  not inflicts any injury on the person of the deceased.  Mr. Lalit has also submitted that it has come out in  the evidence  that golden ear rings on the person of the because  had not  been removed by the accused. Such fact raises serious about whether Ramu was killed for looting the valuables possessed  by him at the time of commission of the crime.      Mr. Lalit has also submitted that the identification of the appellant  Balbir singh  by the  widow of  the deceased. namely, Pw.3  does  not  inspire  confidence  and  the  test identification parade  was also  not properly heal. Mr Lalit has  submitted   that   Pw.15   had   concocted   the   test identification parade   on March 4. 1974. The said Pw.19 had deposed that  11 persons  per liked with the under trial and Pw.3 Muscat  Mall Identified  the accused Balbir Singh after taking two  rounds., the  said Pw.19 did not record the ages of the  persons who  were mixed with the accused out he only stated that  they were  almost of the age of the accused. He also could not any scar hear the eve and whether any of them was of the eight of 5 6. Pw.3 has however. admitted that the persons who were mixed with the accused were all taller than the accused. Mr. Lalit has submitted that a scar on the fact of a  person is  rarely noticed  by the a village rustic who did not  know the  person beforehand and only an occasion to see just for sometime on the day of the occurrence. Moreover unless persons  of similar age and similar eight and more of less of similar stature and appearance are mixed up with the accused. no  reliance should be placed on the identification made in  the test  identification parade. Therefore. benefit of about  should be  given in flavor of the appellant Balbir Singh. Mr.Lalit  has also  submitted that  the deposition of Pw.12 is  also falsified  by the  medical evidence. Although Pw.12 has  deposed that  a lalit  injury was  caused on  the deceased out  from the  medical evidence. It transpires that all the  injured noticed  on the person of the deceased were incised wounds.  Mr.Lalit has  also submitted  that there is contradiction  in   the  depositions  of  the  investigating Officer and  Pw.12 the  approver about  the  date  when  the approvers  statement   was  recorded.   In   the   aforesaid circumstances. It  would not  be proper  the base conviction against the  appellant and other accused on the basis of the testimony of the approver (Pw.12).      Mr. Goyal, the learned counsel appearing for the other appellants as animus curies. has also supported the submissions made by Mr.Lalit. Mr.Goyal has submitted that there are contradictions in the deposition of the approver Pw.12 with the statements previously made by him. Such fact was notices by the trial court. The learned counsel has also submitted that the approver Balmukand had made different submissions with regard to the weapons used by the appellants. Mr.Goyal has also submitted that the deposition of the approver Pw.12 about the injuries on the chest of the

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debased in false and the same is not supported by Dr.S.L.Bundala Pw.8. Mr.Goyal has also submitted that it is not unlikely that the approver had himself Ramu and made false statements Implicating the accused in order to save himself. Mr.Goyal has submitted that although the approver had surrendered before the police on February 28. 1974. his statement was receded on March 9 and March 12.1974. Balmukand has stated to the police that he was willing to become approver and he made confessional statement before the Magistrate on March 13. 1974. Mr.Goyal has submitted that there are discrepancies in his depositions and the statements made under Section 164 Criminal Procedure code. It has also been submitted by Mr.goyal that according to the prosecution case and also according to the deposition the approver the deceased was o friend of Mohan. Five persons including the approver made a conspiracy to kill the deceased to rod only Rs.200/- by that process to get Rs.40/- only in their respective share. It is unbelievable that Mohan should kill his friend  only for a sum of Rs.40/- when he had gone to the house of the deceased and was noticed by the wife of the deceased. The learned counsel has submitted that the projection case could not have been established beyond reasonable doubt and the conviction and sentences passed against the appellants are liable to be set aside.      After giving our careful consideration to the facts and circumstances of  the case  and the  Judgments passed by the courts below.  It appears  to us  that the  approver has not made statements  to exculpate  him out  has clearly  coerced that he  was party  to the conspiracy and on the date of the incident was  waiting hear  the Tall  when Balbir  Singh and Mohan had  been sent  to bring  Ramu with money so that Ramu would be murdered and the money would be looted. he had also deposed that he himself did not inflict injury but he caught hold of  the legs of the deceased when the deceased was done to death.  So far  as the  identification of Balbir Singh by the widow  of the  deceased on  concerted. We not think that such identification  is to  be discarded  simply because the height of the accused was less than the persons with whom he was liked  up or  he had  a scar mark. Fateh Lal (Pw.19) has deposed that  the persons with whom the accused Balbir Singh was liked up were almost of the same age and after going two rounds, the widow had identified Balbir. The contention that no reliance  shall be  placed on  the evidence  of  approver because the  golden ear  rings were  not taken  away by  the accused even  though they  had committed the murder for gain cannot be  accepted. It  may be  indicated here that because Pw.12, the  approver had  raised an  alarm that  some lights were seen  from the  village side. The accused had hurriedly left place of occurrence and Mohan had only removed Rs.200/- from the  pocket of  the deceased.  The  deposition  of  the approver  Balmukand  that  a  car  came  from  the  side  of Lookaransar and  two persons  also saw  them and one of such persons enquired  of Mohan  as to  wherefrom they  had  been coming. Stands fully corroborated from the testimony of Pw.4 Began Ram  and Pw.5  Magoj Singh.  Both the  witnesses  have stated that  they alighted  from the  bus at  village  Bawai After covering  some distance  for coming  to their  village Mitasar, they  saw five  persons. At that time. not car came from the  side of  Loonkaransar. They  had also deposed that the said  persons had  three bicycles  with them.  The  said witnesses have  also deposed  that they could identify Mohan and Yashin  but could  not identify  rest of  three  persons because the others were little away from them.      In our view. the deposition of the approver Pw.12 about the injuries  caused  on  the  person  of  the  deceased  is

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substantially corroborated  from  the  medial  evidence  and absence of any injury caused by the plant weapon of be lathe on the  person of  the deceased  cannot be held to be such a contradiction in  the deposition  of Pw.12  for  which  such deposition is  liable  to  be  discarded.  We  have  already indicated that  five persons  were seen by Pas 4 and 5. Such evidence tallies  with the  deposition of Pw.12 that besides the approved.  there were other four accused. The deposition of Pw  12 also  stands corroborated  that Pw  4 and  5 could identify Mohan  and Yashin  and had  enquired of  them as to from where  they had been coming then. Such deposition fully lends support  to the  deposition given  by Pw.12,  The High Court  has   indicated  cogent  reasons  for  affirming  the conviction and  sentences passed  against the appellants and we do  not find  any reason to interfere with the concurrent findings made  by the  courts below  against the appellants. These  appeals.  therefore.  fall  and  are  dismissed.  The appellants were  released on pail during the pungency of the appeals. They are directed to be taken into custody to serve out the  sentences passed  against them.  Their  bail  bonds stand canceled.