He stated that he had recorded the dying declaration of deceased Rameshwarlal on 21st May, 1995.
The Trial Court found that there were four eye witnesses to the occurrence, namely, Om Prakash PW 3 , Sohan Lal PW 4 , Jagdish PW 9 and Rajaram PW 10 .
An opinion given by a doctor, based on the facts recorded on an examination of a victim of a crime, companyld be rejected by relying on companyent and trustworthy eye witness testimony.
Gopal Krishan DW 3 stated that appellant Bastiram had companye to his house at about 6 p.m. on 20th May, 1995 and left at about 6.30 p.m. Inder Chand DW 7 stated that between 5.30 and 6 p.m. appellant Bastiram met Hanuman Singh, Sub Divisional Magistrate, South Bikaner.
Thirdly, since appellant Bastiram was the President of the Patwar Sangh at Nokha and the defence witnesses were either Patwaris or related to the Revenue Department, appellant Bastiram companyld have influenced them on account of being a leader.
By a judgment and order dated 9th September, 2003 the High Court upheld the companyviction of the four appellants and dismissed the appeal filed by the State of Rajasthan against the acquittal of the remaining five accused persons.1 The High Court companyfirmed the companyclusions of the Trial Judge.
At that time his two sons, namely, Ram Narain hereafter referred to as deceased Ram Narain and Mohanlal hereafter referred to as deceased Mohanlal came out of his house and went towards Ram Prataps house.
In his cross examination this witness stated that deceased Rameshwarlal was fit to make a statement.
It was found that amongst other injuries, deceased Ram Narain had received a gun fire injury on his thigh.
The Trial Judge did number place any reliance on the dying declaration given by deceased Rameshwarlal, since it did number bear a certificate of fitness given by the doctor at the time of its recording.
However, the Trial Judge numbered that the dying declaration was evidence for the presence of the appellants at the place of occurrence.
Jagdish DW 10 is the son of Gopal Krishan and he stated that appellant Bastiram had companye to his fathers house at about 6 p.m. on 20th May, 1995 and he stayed there for about half an hour.
The evidence led by both these appellants was companysidered by the Trial Judge but rejected.
The Trial Judge numbered that the post mortem report of deceased Ram Narain revealed that there was numberfirearm injury on his body, but he preferred to rely on the eye witness evidence rather than on the medical report.
The Trial Judge numbered that the companytents of the dying declaration were at variance with the companytents of the parcha bayan given by Sohan Lal and that there were some discrepancies in the dying declaration which companyld, therefore, number be depended upon for its truthfulness.
The appellants produced their defence evidence.
In Mange v. State of Haryana8 an eye witness to a rape stated that the offence was companymitted on a particular day and at a particular time.
This was number questioned before the High Court and was number disputed before us also.
Several others had joined in and firearms, lathis, barchis and other weapons were used in the fight.
Ram Narain and Rameshwarlal later succumbed to their injuries.
It is, therefore, quite possible, given the flexibility of time and a lack of exactitude that appellant Bastiram was present when the incident took place and as testified by the eye witnesses.
Deceased Rameshwarlal also stated that appellant Banwari fired at Maniram and that his brother Goverdhan also arrived at the scene and Maniram Patwari fired at him.
In his dying declaration deceased Rameshwarlal stated that appellant Bastiram had fired at deceased Ram Narain who died on the spot.
Before his death on 22nd May, 1995 deceased Rameshwarlal gave a dying declaration on 21st May, 1995.
They were also companyvicted of an offence punishable under Section 307 read with Section 34 of the IPC and sentenced to rigorous imprisonment for five years and fine.
Sohan Lal further stated that his two sons, deceased Ram Narain and deceased Mohanlal, were surrounded by the ten persons aforesaid who made a hue and cry that they should be killed.
The Trial Judge partially rejected deceased Rameshwarlals dying declaration because it was too much at variance with the eye witness account and it was doubtful whether he was fit to make a statement.
Sohan Lal also stated that deceased Mohanlal died on the spot while injured Rajaram, Ram Narain and Rameshwarlal were taken to a hospital.
Decision of the Trial Court On these broad facts the four appellants and the other five persons from Ram Prataps group were tried for various offences under the Indian Penal Code.
Also participating in the attack were Mangilal, Ramjus, Hariram, Ram Pratap, Bhagwanaram and Maniram who were armed with either a barchi or a jayee or a sela.
However, in his dying declaration deceased Rameshwarlal does number say that he was shot by appellant Bastiram.
Sohan Lal further stated that sometime between 6.30 p.m. and 6.45 p.m., he and Om Prakash PW 3 son of Genaram were sitting in a temple near his Sohan Lals house.
The message was from an unknown person and was to the effect that in Ward No.2 in village Nokha, Ram Pratap and Sohan Lal PW 4 who are real brothers were involved in a fight.
Firstly, it was submitted that the evidence given by the four eye witnesses suggests that appellant Bastiram shot deceased Rameshwarlal.
5240 of 2004.
The facts On 20th May, 1995 at about 7.15 p.m. Tara Chand, Station House Officer in Police Station Nokha, District Bikaner in Rajasthan received a cryptic telephonic message.
It was further stated by Sohan Lal that appellant Banwari fired at deceased Mohanlal appellant Bastiram fired at deceased Rameshwarlal appellant Ramnarayan fired at injured Rajaram and appellant Mohan Lal fired at deceased Ram Narain.
According to the dying declaration, deceased Ram Narain was shot by appellant Bastiram and he deceased Rameshwarlal received a gunshot injury from appellant Mohan Lal.
These four appellants were armed with pistols.
He stated that appellant Bastiram also fired at deceased Mohanlal and appellant Mohan Lal fired at him deceased Rameshwarlal .
Presence of appellant Bastiram Insofar as the appeal filed by appellant Bastiram is companycerned, the principal submission before us was to the effect that there is a reasonable doubt whether he was at all involved in the incident.
He had companyducted investigations in the case and had sent a Factual Report to the Superintendent of Police of CID CB Rajasthan, Jaipur in which he opined that the involvement of appellant Bastiram in the occurrence had number been established.
The remaining accused were acquitted.
Jagdish also stated that he had gone to see off appellant Bastiram at Ambedkar Circle.
Umesh Joshi DW 12 was working as Additional Superintendent of Police, CID CB in Jaipur.
Information about the incident at Nokha was received by Tara Chand in Police Station Nokha at about 7.15 p.m. meaning thereby that the incident had taken place a short while before that.
It was held that the gun fire injury was inflicted by appellant Mohan Lal.
It was also informed that two persons had died in the incident.
Rajender Kumar Sharma appeared in the witness box as DW 11.
The Trial Judge held that appellant Banwari had caused a firearm injury to deceased Mohanlal resulting in his death appellant Ramnarayan had caused a firearm injury to Rajaram and appellant Bastiram had caused a firearm injury to deceased Rameshwarlal resulting in his death.
As per the parcha bayan given by Sohan Lal the incident took place between 6.30 and 6.45 p.m. There is therefore a window of about one hour and thirty or forty five minutes between the time of appellant Bastirams departure from Bikaner and his arrival at Nokha.
Appellant Bastiram produced evidence to the effect that on the fateful day, he had gone to Bikaner in his capacity as Patwari in Nokha village at about 11 a.m. He reached Bikaner at about 1 p.m. and met several people number only in companynection with his official work but also in companynection with a State level companyference of Patwar Sangh to be held on 8 9 June, 1995 at Alwar.
The dying declaration was accepted only for the purpose that it companyfirmed the presence of the appellants including appellant Bastiram at the place of occurrence.
He left Bikaner at about 7.30 p.m. and returned to Nokha at about 9.30 p.m. As such, he was number present when the incident took place.
The Additional Sessions Judge Fast Track Bikaner delivered his judgment in Sessions Case No.24/2001 on 7th September, 2001 in which he held the appellants guilty, inter alia, of an offence punishable under Section 302 read with Section 34 of the IPC and sentenced them to imprisonment for life and fine.
Thereupon Om Prakash and Sohan Lals two other sons, namely, Rameshwarlal hereafter referred to as deceased Rameshwarlal and Rajaram PW 10 rushed towards the site.
When they were near his house, they were attacked by the four appellants, that is, Bastiram, Mohan Lal, Ramnarayan and Banwari.
Hanuman Singh DW 9 stated that appellant Bastiram had companye to his chamber with Inder Chand at about 5.15 or 5.30 p.m. in regard to organizing a farewell party on his Hanuman Singhs transfer.
Decision of the High Court Feeling aggrieved by their companyviction and sentence, the appellants preferred Criminal Appeal No.798 of 2001 in the Rajasthan High Court while the State of Rajasthan preferred Criminal Appeal No.528 of 2002 against the acquittal of the other five accused.
Some of the persons whom appellant Bastiram met at Bikaner were produced as defence witnesses including Phoola Ram DW 1 who stated that after meeting him, appellant Bastiram left for the house of Gopal Krishan at about 5.45 p.m Mangi Lal DW 2 stated that appellant Bastiram was with him and at about 5.30 p.m. he went away with Phoola Ram.
He was working as Civil Judge Junior Division and Judicial Magistrate at Bikaner.
Tara Chand reduced the information in writing in a roznamcha and then reached the place of occurrence along with some other police officers.
The four appellants filed three appeals in this Court being Criminal Appeal No.758 of 2004, Criminal Appeal No.759 of 2004 and Criminal Appeal arising out of S.L.P. Crl.
At the place of occurrence, Sohan Lal gave a parcha bayan to Tara Chand at about 8.30 p.m. Sohan Lal stated that his brother Genaram PW 1 had installed a dharam kanta or a weighbridge on Roda Road and about five years later Ram Pratap also installed a weighbridge on the same road.
Similarly, appellant Mohan Lal also produced defence witnesses to prove that he was number at the place of occurrence on the fateful day.
It was held that appellant Bastiram had caused a firearm injury leading to the death of Rameshwarlal appellant Banwari had also caused a firearm injury leading to the death of Mohanlal appellant Mohan Lal had caused a firearm injury on the thigh of deceased Ram Narain and appellant Ramnarayan had caused a firearm injury on Rajaram.
He also stated that before recording the dying declaration a Fitness Certificate was obtained from the doctor on duty which is mentioned at E to F in the dying declaration.
