Rajasthan High Court - Jaipur
Padam And Ors. vs State Of Rajasthan on 18 April, 2001
Equivalent citations: 2002(1)WLC341
JUDGMENT Sharma, J.
1. All the thirteen appellants who have filed these appeals, were initially tried by the learned Sessions Judge Bharatpur in Sessions Case No. 162/93 arose from the FIR No. 204/93 registered at Police Station Nadbai Distt. Bharatpur for offences punishable under Sections 147302and 302 read with 149 IPC. Thereafter appellant Hari Singh was declared absconder on May 5, 1994 and after his arrest, separate trial was ordered.
Learned Sessions Judge Bharatpur vide judgment dated February 20, 1996 convicted appellants Padam, Veer Singh, Sangram, Panchya, Man Singh, Rammo, Bijendra Singh, Ajab Singh, Dharab Singh, Roop Singh, Dauji and Kishan Lal under Sections 147 and 302 read with Section 149 IPC and sentenced each of them against Section 147 IPC to undergo one year rigorous imprisonment and against Section 302 read with Section 149 IPC to undergo imprisonment for life.
Vide judgment dated June 14, 2000 the appellant Hari Singh was also convicted by the learned Additional Sessions Judge No. 2 Bharatpur under Sections 147 and 302 read with Section 149 IPC and sentenced against Section 147 IPC to undergo rigorous imprisonment for one year and to pay fine in the sum of Rs. 500/- (in default to further undergo one month R.l.) and against Section 302 read with Section 149 IPC to undergo imprisonment for life and to pay fine in the sum of Rs. 1000/- (in default to further undergo two months R.I.).
Since these appeals arise out of a common FIR and the evidence adduced against the appellants is also common, we heard them analogously and propose to dispose them by this common judgment.
2. Briefly put, the facts may be summarised as follows- The two deceased Gopal and Prathvi Singh, on fateful day of July 1, 1993 around 8 a.m. were together going on a Motor Cycle towards village Nadbai. When they reached near Dharamshala of Kishori Master, they found all the appellants armed with lathies, who gathered there with a common object to kill Gopal and Prathvi Singh. In furtherance to this common object all the appellants surrounded Gopal and Prathvi Singh, prevented them from escape and inflicted on them lathi blows mercilessly. Appellants Hari Singh and Man Singh run them over by Motor Cycle and after found them dead left the place of incident by shouting victory slogans. FIR of the occurrence was instituted by Sher Singh (PW.1) with the Police Station Nadhai on July I, 1993 at 12.15 p.m. according to which Sher Singh, his son Gajendra Singh (PW.3) and nephew Ramveer Singh happened to be there while going in a jeep and they had seen the incident from their own eyes- Names of other eye witnesses Makhan (PW. 5) and Devi Singh (PW.6) were also incorporated in the FIR. It was also stated that dead body of Gopal was lying in the Govt. Hospital Bharatpur while Prathvi Singh was admitted in the said hospital in a critical condition.
3. The Police Station Nadbai registered FIR No. 204/93 (Ex.P.2) for the offences under Sections 147, 149, 341, 323, 307 and 302 1PC and investigation commenced. Site was inspected vide memo Ex.P.3. Inquest Report was drawn vide F.x.P.6. Deadbody of Gopal was subjected to postmortem. Report of Fost mortem is Ex.P.47. Injuries sustained by Prathvi Singh were scanned vide report Ex.P.45. Prathvi Singh died at SMS Hospital Jaipur on July 8, 1993. The Inquest report is Ex.P.53. Postmortem report of deadbody of Pralhvi Singh is Ex.P.54. Appellants gave information under Section 27of the Evidence Act and at the instance of the appellants lathies were recovered. The Forensic Science Laboratory Report is Ex.P.72. On conclusion of the investigation the charge sheet was filed against the appellants. In due course the case came up for trial before the learned Sessions Judge Bharatpur. Charges under Sections 147, 302 and 302 read with Section 149 IPC were framed against all the appellants who denied the charges and claimed trial. In Sessions Case No. 162/1993 the prosecution examined as many as 17 witnesses thereafter explanation of the appellants under Section 313Cr.P.C. was recorded. The appellants denied the allegations and claimed innocence. As many as 8 defence witnesses were produced by the appellants.
In Sessions Case No. 11/1996 the prosecution examined fifteen witnesses. In the statement under Section 313 Cr.P.C. appellant Hari Singh also claimed innocence and pleaded that he was falsely implicated on account of election enmity. Witness Sahib Singh (DW.l) was examined by the appellant Hari Singh in support of his defence. On hearing the final submissions the courts below convicted and sentenced all the appellants as indicated hcreinabove.
4. The two courts below based the conviction of the appellants principally on the evidence of Sher Singh (PW.l), Gajendra Singh (PW.3), Makhan (PW.5) and Devi Singh (PW.6). The presence of these witnesses on the place of incident has not been doubted and it impelled the courts below to hold these witnesses as eye witnesses of the incident.
5. Mr. A.K. Gupta, learned counsel appearing for Ihe appellants contended that Ihe alleged eye witnesses have attempted to create their presence falsely. Their presence at the scene of occurrence is doubtful. FIR is concocted and fabricated one.Inquest report does not have the FIR number. Delay in recording the statements of the witnesses under Section 161 Cr.P.C. was not explained. Statements of eye witnesses have not been corroborated by the medical evidence. Investigation is tainted. Statement of Prathvi Single (Ex.P.58) recorded prior to his death under Section 161 Cr.P.C. is concocted one. It was one Bhim Singh (DW.6) who had taken the two injured persons who were iying abandoned, to Dr. R.P. Gupta (DW.5) and in view of this defence version the whole prosecution case is demolished. According to learned counsel both the courts below did not properly appreciate the material placed on record and committed illegality in convicting Ihe appellants. We shall deal with the case law cited by the learned counsel at appropriate juncture.
6. Per contra Mr. S.C Purohit, learned Public Prosecutor and Mr. V.R. Bajwa, learned counsel for the complainant supported (he impugned judgments and canvassed that FIR was lodged within four hours of the incident and it contains the names of all the appellants and the eye witnesses. Site plan renders corroboration to the version dished out by the prosecution in the FIR. All the eye witnesses Sher Singh (PW.l) Gajendra Singh (PW.3), Makhan Singh (PW.5), and Devi Singh (PW.6) also corroborate the prosecution case and their credibility could not be shattered, it is a myth to state that the medical evidence run counter to Ihe version of eye witnesses. Learned counsel placed reliance on various judicial pronoucements.
7. Before however, dealing with me contentions raised by the learned counsel for the appellants, we might indicate the nature of the evidence produced by the prosecution in support of its case. We make it clear that we are considering the evidence adduced in Sessions Case No. 162/1993. In the first place there is the evidence of four eye witnesses namely Sher Singh (PW.l) Gajendra Singh (PW.3) Makhan Singh (PW.5) and Devi Singh (PW.6). The evidence of these eye witnesses is said to be corroborated by the dying declaration of deceased Prathvi Singh (Ex.P.58) and the post mortem reports of the deceased Gopal and Prathvi Singh.
8. Let us now scan the credibility of four eye witnesses coming to the testimony of Sher Singh (PW.l) it is to be noticed that he is the cousin of deceased Gopal. His father Har Chand and Ram Karan, the father of deceased Gopal were real brothers. He is a chance witness and according to his deposition he was going in his jeep to Bharatpur from his village Kawal alongwith his son Gajendra and nephew Ram Veer Singh on July 1, 1993 around 8 a.m. About hundred steps ahead from his jeep Prathvi Singh and Gopal were going on a motor cycle. When Motor Cycle reached near, the Dharamshala of Kishori Master, all the appellants attacked the Motor Cycle. Prathvi Singh, in order to save their lives turned motor cycle towards the field of Kishori Master but it could not run fast and the appellants who were armed with Hockey and lalhies surrounded Prathvi Singh and Gopal and started beating them mercilessly. Appellants Hari Singh and Man Singh run them over by Motor Cycle. Sher Singh and his son Gajendra got stopped their jeep adjacent the Pipal Tree and requested the appellants with the folded hands but the appellants threatened them with dire consequences. Makhan Singh and Devi Singh of village Kawai, who were also standing on road had also seen the incident. After the appellants left the place of occurrence by raising victory slogans praising Giriraj Maharaj, witness Sher Singh alongwith Gajendra Singh, Ram Veer Singh, Makhan Singh and Devi Singh reached near Gopal and Prathvi Singh who were lying unconscious. Thereafter arrangement of Tractor Trolly was made and both the injured were taken to Hospital at village Nadhai. After providing them First Aid the doctor advised to take them to Bharatpur. White the were being taken by Sher Singh, Gajendra, Ajay Singh and Surendra in an Ambulance to Bharatpur, one of the injured Gopal died. Prathvi Singh was admitted in the Hospital at Bharatpur. Leaving the deadbody of Gopal at Bharatpur Hospital, Sher Singh came back to Nadbai and submitted a written report Ex.P.l on the basis of which FIR Ex. P.2 was drawn. He also exhibited the Inquest Report of the deadbody of Gopal Ex.P.6. He further staled that Prathvi Singh was referred to SMS Hospital Jaipur where he died on July 8, 1993. He is also signatory of Inquest report Ex.P.7 of the dead body of Prathvi Singh. In his cross examination witness Sher Singh deposed that at the time of drawing Inquest report Ex.P.6 he identified the deadbody of Gopal Singh. He also deposed that he dictated the Report to Shribhan and reached at Police Station Nadbai at 12.15 p.m. He denied this suggestion of defence counsel that it was Bheema who had taken the injured, who were lying abandoned, to the Hospital at Nadbai in his Tractor Trolly.
9. Gajendra Singh (PW.3) almost repeated the version of his father Sher Singh. In his cross-examination he deposed that his statement was recorded by the Police on July 3, 1993, He himself had gone back to the village for arranging Tractor Trolly and this fact was narrated Tractor Trolly and this fact was narrated by him to the police but why it was not incorporated in his police statement he cannot explain. He further stated that injured Gopal Singh and Prathvi Singh could not be taken in the jeep as the jeep was small. He did not care to look at the Trolly whether it was stained with blood or not. He admitted that one Bhim son of Shobha Ram of his village had a Tractor but he denied this suggestion that it was Bhim who look injured Gopal Singh and Prathvi Singh in his Tractor Trolly to Nadbai Hospital. He also denied this suggestion that report of the incident was lodged at Police Station Nadbai around 9.15 a.m. and it was Dharam Singh ASI who took Gopal Singh and Prathvi Singh to Bharatpur Hospital.
10. Makhan Singh (PW.5) in his deposition stated that he alongwith his nephew Devi Singh were going to Nadbai on fool for bringing seeds. Gopal and Prathvi Singh, on a Motor Cycle were behind them and Jeep of Sher Singh was just behind the Motor Cycle. As soon as the Motor Cycle reached near Dharamshala of Kishori Master, all the appellants came out of Dharamshalal armed with Hockey and lathies and attacked Motor Cycle. Prathvi made an attempt to escape by turning Motor Cycle towards the field of Kishori Master but could not run it fast and was surrounded by the appellants who mercilessly inflicted lathi and Hockey blows on the person of Gopal and Prathvi. Appellants Man Singh and Hari Singh started the Motor Cycle and pushed it over the injured Gopal and Prathvi. After finding them dead, the appellants proceeded towards village Raisis by raising victory slogans praising Giriraj Maharaj, The appellants threatened Makhan Singh and other witnesses of dire consequences. This witness alongwith Sher Singh, Gajendra Singh and Ramveer Singh, reached near the injured. Then Sher Singh told his son Gajendra to bring Tractor Trolly from the village. After some time Gajendra came with Tractor Trolly and took Gopal and Prathvi to Nadbai Hospital. In the cross-examination this witness admitted that he and Sher Singh were accused in a criminal case. He also deposed that he did not find any blood on the field. When he lifted Prathvi and Gopal to put them on Trolly his clothes were not stained with the blood. He also stated that police recorded his statement on July 3, 1993.
11. Devi Singh PW.6 also repeated the version given by Makhan Singh. He deposed that Tractor Trolly was taken to the field of Kishori Master where Gopal and Prathvi were lifted and put in the Trolly. He also disclosed the police that he made request to the Appellants for saving the lift of Gopal, but why it was not incorporated in the statement he cannot say. He also slated that he did not see any marks of tyres on the clothes of Prathvi and Gopal.
12. In order to adjudge veracity of the testimony of alleged eye witnesses, we deem it necessary to refer some more statements of prosecution witnesses. Dharam Singh AS1 PW.2 deposed that on receiving the Q.S.T. he proceeded to Bharatpur Hospital and drawn the Inquest report Ex.P.6. In his cross-examination he admitted that he received Q.S.T. at 12.30 p.m. at Police Station Nadbai thereafter he proceeded to Bharatpur Hospital. He also stated that FIR No. 204/93 had already been registered before he left Nadbai. SHO Vidhyadhar was not with him. He proceeded to Bharatpur on receiving the directions of Higher officials and when he left Police Station SHO Vidhyadhar was not present in the Police Station and Rupi Ram was Incharge Thana. He also admitted that when he started drawing Inquest Report, Mahendra Singh Incharge Police Chowki at Hospital Bharatpur gave him the written report which is Ex.D.2. He further deposed that Sher Singh met him in the Hospital, who identified the deadbody of Gopal. He also admitted that in Ex.P.6 time to initiate proceeding was not mentioned. He further deposed that Sher Singh remained there till the completion of the proceedings. Proceedings incorporated in Ex.P.6 were read over to him and he put his signatures.
13. Dr. B.L. Meena PW.10 in his deposition stated that he conducted the postmortem of deadbody of Gopal Singh brought by Dharam Singh ASI, Police Station Nadbai around 3.30 p.m. In his cross-examination he stated that a report was lodged by him with Mahendra Singh Police Chowki Incharge Bharatpur Hospital, whatever was narrated by Sher Singh, he incorporated in the report. At that time sher Singh did not tell him as to where and by whom Gopal Singh received injuries. He further stated that at 11.15 a.m. Prathvi Singh was brought by Dharam Singh ASI. He did not find any mark of tyre of Motor Cycle on the clothes of Gopal Singh. At the time of postmortem, Sher Singh identified the deadbody of Gopal Singh.
14. Vidhyadhar Singh SHO PW.16 in his deposition stated that Sher Singh submitted written report at 12.15 p.m. before him. He further stated that he came to the Police Station around 11.45 a.m. on July I, 1993. When he reached Police Station he found Dharam Singh ASI and he instructed Dhararn Singh to go to Bharatpur Hospital. He informed Dharam Singh about the FIR number. In his cross-examination he stated that he did not seize Tractor Trolly in which the injured were taken. He did not even desire to see the Tractor Trolly. He did not know as to who took the injured to Nadbai Hospital.
15. After closely scanning the material on record we noticed the following salient features in the prosecution evidence-
((i) Police Station Nadbai is only 7 kilometers away from the scene of occurrence.
(ii) The incident is alleged to have been taken place around 8 a.m. on July 1, 1993 but the written report was lodged by Sher Singh at 12.15 p.m. i.e. after four hours and fifteen minutes of the incident.
(iii) The alleged eye witnesses Sher Singh and his son Gajendra Singh had a vehicle (jeep) but neither they utilised it in taking the injured Gopal and Prathvi to the Hospital nor they rushed to the Police Station to lodge the Report. Why did they not choose to lodge the report of the incident instantly, to this they offered no explanation.
(iv) AH the four witnesses of the prosecution Sher Singh, Gajendra Singh, Makhan Singh and Devi Singh reside in village Kawal which is about one and half kilometer away from the place of incident. AH the witnesses were by chance present near the place of occurrence. They had gone with the injured Gopal and Prathvi to Nadbai Hospital but they did not disclose the names of the accused appellants to Dr. P.P. Gupta who admitted the injured for first aid and thereafter referred them to Bharatpur.
(v) Witness Makhan Singh and Devi Singh did not accompany the injured to Bharatpur Hospital and did choose to remain at Nadbai but they neither instituted FIR nor disclosed anything about the incident to anybody in the village. On July 3, 1993 i.e. after two days of the occurrence, these witnesses for the first time narrated the incident in their statements recorded under Section 161 Cr.P.C.
(vi)Dr. B.L. Meena(PW.14)at 12.15 p.m. on July 1,1993 communicated Written Report (Ex. D2) to Incharge Police Post Bharatpur Hospital staling therein that Sher Singh brought the deadbody of Gopal Singh around 11.20 a.m. The incharge Police Post forwarded that Report to SHO Police Station Nadbai.
(vii) According to Dharam Singh ASI (PW.2) when he left Police Station Nadbai at 12.30 p.m. after receiving Q.S.T. Vidhyadhar SHO was not present in the Police Station and Rupi Ram was Incharge Thana, whereas Vidhyadhar SHO (PW.16) deposed that he came to the Police Station around 11.45 a.m. and he instructed Dharam Singh ASI to go to Bharatpur Hospital.
(viii) Dharam Singh ASI deposed that when he started drawing the Inquest Report (Ex.P.6) Sher Singh who was in Bharatpur Hospital, identified the dead body of Gopal. Dharam Singh further stated that Sher Singh remained in the Hospital throughout till the completion of the proceedings.
(iX) Column of time to initiate proceedings in the Inquest Report (Ex.P.6) was left blank,
(x) Dr. B.L. Meena (PW.10) deposed that whatever was narrated to him by Sher Singh, he incorporated in the Report and lodged it with the Police Post at Bharatpur Hospital. Sher Singh did not tell him to where and by whom deceased Gopal Singh received the injuries. According to Dr. B.L. Meena, injured Prathvi Singh was brought by Dharam Singh ASI at about 11.15 A.M. Marks of tyre of Motor Cycle were not found by Dr. B.L. Meena on the clothes of Gopal Singh.
(xi) Mahendra Singh Incharge Police Post, Bharatpur Hospital was not examined by the prosecution.
(xii) Ex,P.58 is the statement of Prathvi Singh alleged to have been recorded by Vidhya Dhar SHO under Section 161 Cr.P.C. on July 2,1993. From the statement it does not appear that any certificate was obtained from the Doctor as to whether Prathvi Singh was in a fit state to give the slatement.
16. The chronology of events indicates that the prosecution has not come forward with the true particulars as to the birth of the First Information Report. According to Sher Singh he lodged the FIR at 12.15 PM. A look at the Written Report (Ex.P.l) demonstrates that it bears the endorsement of Vidhya Dhar SHO, who wrote 12.15 p.m. on it is his own handwriting. Whereas Dharam Singh AS1 (PW.2) in his deposition stated that when he left Police Stalion Nadbai at 12.30 p.m., Vidhya Dhar SHO was not present in the Police Station and Rupi Ram was Incharge of Thana. When Vidhya Dhar SHO was not present in the Police Station till 12.30 p.m., how could he receive the report at 12.15 p.m.? If we believe the statement of Vidhya Dhar SHO that he came in the Police Station Nadbai around 11.45 a.m. and it was he who instructed Dharam Singh ASI to go to Bharalpur Hospital, then we will have to disbelieve the deposition of Dharam Singh ASI. We, thus, find a diametrically contrary assertion between the evidence of Vidhya Dhar SHO (PW.16) and Dharam Singh ASI (PW.2) which adversely affect the veracity of Ihe prosecution case with regard to the time of recording the FIR. It is also significant to note that Dr. B.L. Meena (PW.14) gave written Report (Ex.D.l) to Incharge Police Post Hospital Bharatpur at 12.15 p.m. Thereafter Dharam Singh ASI stated drawing Inquest Report (Ex.P.6) and according to the statement of Dharam Singh, it was Sher Singh who identified the dead body of Gopal and remained at Bharatpur throughout till the completion of the proceedings of the proceedings of the Inquest Report. If Sher Singh was at Bharalpur at 12.15 p.m. then how could he lodge the Report at Police Station Nadbai at 12.15 p.m.?
17. It is also strange and inexplicable that Sher Singh did not choose to lodge the report at the Police Station Nadbai immediately after seeing Ihe incident though he had a vehicle (jeep) with him and he could have easily gone to the Police Station, which was only 7 kilometers away. Another significant fact which may be noted in the instant case is that though all Ihe four alleged eye witnesses of the occurrence namely Sher Sihgh, Gajendra, Makhan Singh and Devi Singh had gone with the injured Gopal and Prathvi to Nadbai Hospital and got them admilted there for providing them first aid, yet they did not disclose the names of the accused appellants to Dr. R.P. Gupta, who gave the first aid to the injured Gopal and Prathvi. Witnesses Makhan Singh and Devi Singh neither had accompanied the injured to Bharatpur Hospital nor had taken any trouble of going and informing the police about what had happened. After seeing Ihe incident they quietly went back to their home. Under these circumstances can it be said that conduct of these witnesses was natural or reasonable?
18. Their Lordships of the Supreme Court in Thulia Kali v. The State of Tamil Nadu (1), indicated that an FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprils and the part played by them as well as the names of the eye witnesses present at the scene of occurrence. Delay in lodging the FIR quite often results in embellishment which is creature of afterthought. On account of delay, the report only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that Ihe delay in the lodging of Ihe FIR should be satisfactorily explained. In that case the Police Station was 2 miles away from the place of occurrence arid there was delay of hours in reporting incident. Under these circumslances Ihe Hon'ble Supreme Court pointed out that it was unsafe to base a conviction.
19. At this junclure we deem it necessary to consider the statements of two defence witnesses, Dr. R.P. Gupta (DW.5) and Bhim Stngh (DW.6). In his deposition Dr. R.P. Gupta slated that he was posted as Medical Officer on July 1, 1993 in Nadbai Hospital. After perusing the Outdoor Patient Register he deposed that injured Gopal Singh and Pralhvi Singh came to the hospital on that day and their names were entered at Nos. 10304 and 10305. One Rhim Singh at that time prayed by making application (Ex.D.9) that the injured were brought by him therefore a certificate to this effect be issued. Dr.R.P. Gupta thereafter issued certificate (Ex.D.7) and entered it as Ex.D.8 in the Register. Rhim Singh pul his signatures on the certificates. The application of Bhim Singh was pasted on the internal page of the Register.
20. Bhim Singh (DW.G) stated that deceased Gopal Singh and Prathvi Singh were his cousins. On July 1, 1993 around 8 a.m. while he was going from his village Kawai to Khedly alongwith Rajendra, Samander, Salveer and Bhagwat on his Tractor he found injured Gopal and Prathvi lying abandoned in the field of Kishori Master along with their motorcycle. He took Gopal and Prathvi in his Tractor to Nadbai Hospital and got them admitted (here. In his cross-examination he deposed that he obtained certificate from the Doctor.
21. A careful scrutiny of document Ex.D.7 reveals that it bears the signatures of Dr. R.P. Gupta and Bhim Singh. It was issued on July 1, 1993 and reads as under-
" Certificate To whom so ever it may concern It is to certified that Mr. Gopal Singh and Prithi Singh R/op Kabai P.S. Nadbai came to this Hospital and referred to General Hospital Bharat-pur after giving primary medical treatment. Both came along with Mr. Bhim Singh R/o Kabai P.S. Nadbai."
22. Ex.P.8 is the photostat copy of the Outdoor Patient Register of Nadbai Hospital wherein at item Nos.10304 and 10305 names of Gopal Singh and Prithvi Singh have been entered, In the last column of the Register following endorsement has been made.
"Refer to BPR- Inform Police Station Nadbai."
23. Thus from the documentary evidence adduced by the defence it appears that Police Station Nadbai was informed about the incident by the officials of Nadbai Hospital and it was Bhim Singh who brought the injured Gopal Singh and Prithvi Singh to Nadbai Hospital, It is well seitled that the defence is not required to prove its case with the same rigour as is necessary for the prosecution to prove its case and it is sufficient if (he defence succeeds in throwing a reasonable doubt on the prosecution case to enable the court to reject the prosecution version.
24. We have before us now two different versions and while considering these versions the first question which we must ask ourselves is as to whether the genesis and the origin of the occurrence has been rightly placed by the prosecution?
25. Mr. V.R. Bajwa, learned counsel appearing for the complainant made an attempt to help us in considering the question by contending that genesis and the origin of the incident has been rightly placed by the prosecution. The FIR was lodged within hours of the incident incorporating the names of the accused persons and eye witnesses. Recoveries of lathies have been effected from all the accused appellants except Man Singh from whom a Hockey was recovered. The lathies which were recovered from accused appellants Rammo, Padam, Darab Singh, Doji, Panchya, Man Singh, Sangram Singh, Veer Singh and Roopa were found to be stained with Blood by Ihe FSI. in its reporl. Blood stained Saufi was recovered from Sher Singh vide Ex.P.4. As per FSL report (Ex.P. 72) human blood was found oh the saufi of Sher Singh which was smeared with blood of deceased persons when they were being removed to the Hospital by him. Blood stained soil was lifted by seizure Memo (Ex.P.55) and as per FSL report human blood was found in Ihe soil. All the four eye witnesses namely Sher Singh, Gajendra Singh, Makhan Singh and" Devi Singh have corroborated Ihe version set forth in the FIR and the defence has not been able to impeach their credibility. The witnesses cannot be placed in the category of partisan witnesses. It is a myth to state that medical evidence runs counter to the version of eye witnesses. It is well settled that the testimony of a chance witness only requires a close scrutiny, such a witness cannot be considered untruthful because he is a chance witness. In the instant case all the four witnesses unequivocally describes the incident and their testimony inspires full confidence, it is further contended by the learned counsel that the defence can not take advantage of investigational lapses in view of ratio of State of West Bengal v. Mir Mohammed Umar (2). Even the delay in recording the statement of Gajendra Singh, Makhan Singh and Devi Singh does not help the defence as FIR is self contained. The statement of Pralhvi Singh recorded under Section 161 Cr.P.C. is admissible as dying declaration and also under Section 33 of the Evidence Act and when it gets corroborated by ocular and documentary evidence it can be acted upon by the court.
26. Mr. V.R. Bajwa, learned counsel further canvassed that FIR cannot be termed as antidated on account of the admitted fact that it reached the court of concerned Magistrate on the next day of the incident i.e. on July 2, 1993 at 10a.m. The argument in regard to anomaly of timing of FIR cannot be given premium on account of the simple fact that no such suggestion was given to Sher Singh in cross-examination. The argument that Inquest Proceedings run counter to the version given by Sher Singh also is no help to the defence. There could be some minor contradictions regarding exact timings in the testimony of various witnesses for which the entire case of the prosecution cannot be thrown over board.
27. It is next contended by Mr. Bajwa learned counsel that no reliance can be placed on the testimony of the defence witnesses namely Dr. R.P. Gupta and Bhim Singh. The intrinsic worth of the defence witnesses is always considered their veracity. It is very difficult to rely on such witnesses who came to the court with a particular version after years of the incident for the first time. The probative value of certificate Ex. D.7 issued by Dr. R.P. Gupta becomes nil on the ground that it was allegedly issued flouting the Rules. Bhim Singh (DW. 6) in his cross-examination admitted that he had criminal litigation with the deceased. Thus it is preposterous to suggest that this witness would run the risk of carrying the deceased persons on his own and bring them to the Hospital when there was so much bad blood between him and the deceased persons. If at all he had brought them to Hospital it was his boundened duty to have informed the police about the entire development immediately. Testimony of such witness cannot be relied upon. Placing reliance on various authorities Mr. Bajwa lastly urged that the prosecution has successfully brought home the guilt of the appellants and they were rightly convicted by the courts below.
28. Let us first consider the case law cited by Mr. Bajwa learned counsel. In State of West Bengal vs. Mir Mohammed Umar (supra), there Lordship of the Supreme Court indicated thus:- (Para 41) "The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officer. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Efforts should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constrains of the police officers in the present system, the ill equipped machinery they have to cope with and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities, the police force have to confront with while conducting investigation in almost every case. Before an investigating officer is imputed with castigating remarks the courts should not over look the fact that usually such an officer is not heard in respect of such remarks made against him. The court need make such deprecating remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above."
29. Bhaskaran v. State of Kerata (3), was the case wherein their Lordships observed thus- (para 6) "The High Court rightly pointed out that considering the fact that the distance of the police station from the village in question was 15 kms. and the uncontroverted evidence of PW.l that no buses were available to reach the police station in the night, it could not be said that there was any delay in lodging the FIR at 9 a.m. on the following morning."
30. In Rana Pratap v. State of Haryana (4), their Lordships of the Supreme Court propounded thus (Para 3).
"We do not understand the expression chance witnesses. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passerby will be witnesses. Their evidence cannot be, brushed aside or viewed with suspicion on the ground that they are mere chance witnesses. The expression, 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable explanation in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are chance witnesses even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."
31. Dr. Krishna Pal v. State of U.P. (5), was the case wherein their Lordships observed as under- (Para 9) "In the instant case, no explanation has been given by the prosecution as to why eye witnesses has not been examined shortly after the incident and from the materials on record it appears that there had been inordinate delay in examining the eye witnesses. But simply on that account, the convincing and reliable evidence adduced in the case should not be discarded."
32. In Ramesh v. Stale of M.P. (6), it was held that delay in examining the witnesses ipsofaclo can not be a ground to discard their testimony when in cross-examination of witnesses nothing tangible had been brought out to impeach their testimony.
33. Leela Ram v. State of Haryana (7), their Lordships of the Supreme Court indicated that minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. The evidence is to be considered from the point of view of trustworthiness.
34. Having considered the evidence of the prosecution from the point of view of trustworthiness we find that it is replete with inherent improbabilities and full of serious contradictions and meaningful embellishments. As already stated there is a serious doubt about the birth of the FIR. Prathvi Singh who was admitted in Bharatpur Hospital around 11.15 A.M. by Dharam Singh ASI and according to prosecution case was conscious and in a fit state to give the statement, would have been star witness but his 'Parcha Bayan' was not recorded on July 1,1993 and no explanation was given for this inaction by SHO Vidhya Dhar. As a matter of fact the foundation of the prosecution case ought to have been built on the statement of Prathvi Singh, who sustained injuries in the incident. Another serious infirmity is that Gopal and Prathvi were given first aid in the Nadbai Hospital around 9.00 A,M. and Police Station Nadbai was informed about the incident by the Hospital authorities as is evident from the endorsement made in out door Patient Register (Ex. D.8) bill the prosecution has suppressed this information. SHO Vidhya Dhar did not even record the statement of Dr. R.P. Gupla of Nadbai Hospital. He did not make attempt to know as to how Gopal and Prathvi were taken to Nadbai Hospital. This shows that the prosecution case is suffering from the vice of SUPPRESSION VERI on material point. Diametrically contrary assertion between the evidence of SHO vidhya Dhar and ASI Dharam Singh also makes the prosecution case doubtful. We find the conduct of all the four prosecution witnesses namely Sher Singh, Gajendra Makhan Singh and Devi Singh is highly, unnatural. They did not immediately lodge the report with the Police Station Nadbai despite possessing Jeep. Names, of the assailants were not disclosed by them to Dr. R.P. Gupta at Nadbai and to Dr. B.L. Meena at Bharatpur. Leaving the column of time to initiate the proceedings blank in the Inquest Report of Gopal Singh (Ex. P. 6) and non examination of Mahendra Singh Incharge Police Post Bharatpur Hospital also create doubt in the truthfulness of the prosecution story. Gajendra, Makhan Singh and Devi Singh narrated the incident for the first time to the Police on July 3, 1993 when their statements under Section 161 Cr.P.C. were recorded. Their silence speaks volumes in regard to their suspicious conduct. Sher Singh though met ASI Dharam Singh at Bharatpur yet did not choose to narrate the incident to him. His act of coming to Nadbai back, got the report drafted in his house by Shri Bhan and then handed it over at Police Station, gives the impression that it is creature of afterthought.
35. In so far as the argument of recoveries of blood stained lathies at the instance of the appellants is concerned, it is difficult to believe that although the lathies were produced few days after the occurrence, the accused appellants would not take (he precaution of washing off the blood marks from the lathies. Recovery of blood stained saufi at the instance of Sher Singh does not ipso facto establish his presence near the scene of occurrence.
36. It is difficult to agree with Mr. Bajwa learned counsel for the complainant that the probative value of certificate Ex.D.7 is zero. The testimony of Bhim Singh also cannot be discarded on the ground that his relations with the deceased Gopal were inimical. On the contrary this fact provides strength to his testimony. Ordinarily a person whose relations with the injured are inimical would not take risk to take the injured to the Hospital and then procure a certificate to the effect that he was the person who got the injured admitted to the Hospital.
37. Authorities on which learned counsel for the complainant placed reliance are distinguishable. In Bhaskaran v. State of Kerala (supra) Police Station was 15 kms. away and no buses were available to reach the Police Station in the night. Under these circumstances delay in lodging the report was not held fatal. But in the instant case the Police Station Nadbai was at a distance of 7 kms. and Sher Singh had a jeep but he did not choose to lodge the report instantly. As said earlier we have considered the evidence of the prosecution from the "point of view of trustworthiness and not from the angle that they are the chance witnesses. We do not also doubt the veracity of Gajendra, Makhan Singh and Devi Singh on the ground that their statements were recorded two days after the incident but a doubt occurs in regard to their testimony looking to their unnatural conduct that they kept quite for two days and did not lodge the report. The discrepancies which we have noticed are nol trivial in nature. An unnatural conduct of the prosecution witnesses can only be consistent with the fact that the deceased may have been assaulted in the earlier point of time by some unidentified assailants. The testimony of Bhim Singh (DW.6) and Dr. R.P. Gupta (D.W.5) strengthens this aspect. We cannot ignore their testimony as it is supported by documentary evidence. The defence version cannot be termed as afterthought. As from the very beginning of the prosecution evidence i.e. in the cross-examination of Sher Singh (P.W.I) this suggestion was made that it was Bhima who took Gopal and Prathvi to the Hospital. The defence In our opinion, succeeds in throwing a reasonable doubt on the prosecution case. If Bhim Singh was the person who saw injured Gopal and Prathvi in an abandoned state in the field and took them to Nadbai Hospital in his Tractor Trolly, then the version of Sher Singh, Gajendra, Makhan Singh and Devi Singh is too good .to be true and is not worthy of credence. In view of statement of Bhim Singh and Dr. R.P. Gupta we entertain grave doubt as to the presence of Sher Singh, Makhan Singh and Devi Singh at the time and place of occurrence.
38. In State of Haryana v. Gurdial Singh (8), two different versions came up before the court. It was indicated by their Lordships of the Supreme Court that in view of contradictory versions conviction could not be sustained.
39. This brings us to the statement of Prathvi Singh alleged to have been recorded under Section 161 Cr.P.C. by the SHO VidhyaDhar on July 2,1993. From the statement of Prathvi Singh (Ex. P.58) it does not appear that any certificate was obtained from the Doctor as to whether Prathvi Singh was in a fit state to give the statement. SHO Vidhya Dhar in his deposition stated that he obtained certificate from the Doctor on a separate paper and a carbon copy was placed on record but it is difficult to believe the testimony of SHO Vidhya Dhar. A look at the carbon copy of the alleged certificate reveals that it is in the handwriting of SHO Vidhya Dhar. The endorsement about the condition of Prilhvi Singh is also in the handwriting of SHO Vidhya Dhar and it bears unidentified initials which according to Vidhya Dhar were made by the Doctor whose name was not disclosed for the reasons best known to him. The irresistible inference must be that SHO Vidhya Dhar did not obtain the certificate from the Doctor and no reliance can be placed on the carbon copy of the document filed by the SHO Vidhya Dhar. We are unable to pursuade ourselves to attach importance to the statement of Prathvi Singh alleged to have been recorded under Section 161 Cr.P.C. The SHO could not explain as to why the presence of independent persons were not ensured before recording the said statement in view of Rule 6.22 of the Rajasthan Police Rules. If the condition of Prathvi Singh was serious they why the attempt was not made to record his statement before the Magistrate.
40. The infirmities in the prosecution case, discussed hereinabove may be summarised thus-
(i) The prosecution has not come forward with the true particulars as to the birth - of the First Information Report.
(ii) The information regarding the occurrence communicated by Nadbai Hospital to the Police Station Nadbai Hospital to the Police Station Nadbai was deliberately suppressed by the prosecution.
(iii) Sher Singh though had opportunity to lodge the FIR immediately yet he did not choose to do so. The FIR was lodged by him after four hours and fifteen minutes of the incident.
(iv) Sher Singh had opportunity to disclose the names of the accused to Dr. R.P. Gupta at Nadbai Hospital as also to Dr. B.L. Meena at Bharatpur Hospital but he did not choose to do so. Dr. B.L. Meena categorically stated that Sher Singh did not tell him as to where and by whom deceased Gopal Singh received injuries.
(v) There is a diametrically contrary assertion between the evidence of Vidhya Dhar SHO and Dharam Singh ASI which adversely affect the veracity of the prosecution case.
(vi) Delay in lodging of the FIR has not been satisfactorily explained. Sher Singh got the FIR drafted at his residence with the help of Shribhan Singh and after due deliberation and consultation, it appears to have been lodged and is a creature of afterthought.
(vii)Conduct of eye witnesses Sher Singh. Gajendra, Makhan Singh and Devi Singh is highly unnatural and their presence at the scene of occurrence becomes doubtful. Such an unnatural conduct can only be consistent with the fact that the deceased may have been assaulted in the earlier point of time by some unidentified assailants.
(viii) Conduct of Vidhyadhar SHO is suspicious. He did not choose to" took at the Tractor Trolly in which injured Gopal and Prathvi were taken. He did not investigate as to who took injured to Nadbai Hospital. If injured Prathvi was conscious on July 1, 1993 then his Parcha Bayan ought to have been recorded but no attempt was made by Vidhya Dhar SHO to examine Prathvi. His statement under Sec.161 Cr.P.C. was alleged to have been recorded on July 2, 1993 flouting the provisions of the Rajasthan Police Rules. Column of time to initiate proceedings of Inquest Report (Ex.P.6) was left blank.
(ix) The defence made a huge dent in the prosecution case by establishing that it was Bhim Singh who brought injured Gopal and Prathvi to Nadbai Hospital. If Bhim Singh brought the injured to Nadbai Hospital then the testimony of all the four eye witnesses is a bundle of lies.
41. The learned trial Judges appear to have overlooked most of these circumstances discussed by us which were extremely damaging to the prosecution case. It would thus be seen that the evidence led on behalf of the prosecution is wholly unsatisfactory and it cannot be regarded as sufficient to found the conviction of the appellants for the murder of the deceased Gopal Singh and Prathvi Singh. The prosecution has failed to prove the charges under Sections 147 and 302 read with 149 IPC against the appellants beyond reasonable doubt.
42. In the result the appeals stand allowed and the impugned judgments of the courts below are set aside. All the appellants namely, Padam, Veer Singh, Sangram, Panchya, Man Singh, Rammo, Bijendra Singh, A)ab Singh, Dharab Singh, Roop Singh, Dauji, Kishan Lal and Hari Singh shall stand acquitted from the charges Under Sections 147 & 302 read with 149 IPC. They shall be released forthwith if not required in any other case.