Rajasthan High Court - Jaipur
Khajan Singh vs State Of Rajasthan on 24 November, 2001
Equivalent citations: 2002(4)WLC470
JUDGMENT Sharma, J.
1. The appellant was arraigned before the learned Additional Sessions Judge Deeg, for having committed murder of his own brother Harbans Singh. The learned trial Judge vide judgment dated March 28, 2000, convicted the appellant under Section 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs.1000/-, in default to further undergo three months' simple imprisonment.
2. The prosecution story is woven like this. Kehar Singh, who is son of the deceased, submitted a written report Ex.P.8, with the Police Station, Sikri, on October 14, 1997, at 7 p.m. with the averments that there was animosity between his father Harbans Singh and his uncle Khajan Singh over a Neem tree. On October 10, 1997, around 6 p.m. when his father was going to Gurudwara for worship, Khajan Singh started abusing him near the house of Santok Singh. Then, with the intention of killing him, Khajan Singh struck the first blow with knife on the right side of the chest, the second blow on the face and nose and third blow on the stomach. Because of the third blow, the intestines came out. After hearing hue and cry of his father, Kehar Singh ran out. Darshan Singh, Pahalwan Singh and others looked after his father. In the meanwhile Khajan Singh ray away with knife. Then Kehar Singh and others took his father to hospital and got him admitted. During the course of treatment, his father succumbed to injuries. Post Mortem and other police inquiries were carried out in Alwar. After that he brought the dead body in village & cremated and after performing 'Tiya' ceremony, the report was instituted with some delay. On the basis of the said report, formal F.I.R. bearing No.120/97 (Ex.P.93 was chalked under Section 302 IPC and investigation commenced. The site was inspected. Site plan Ex. P.7, was drawn on October 13, 1995. Statements of witnesses were recorded under Section 161 Cr.P.C. Appellant was arrested and on completion of investigation, charge sheet came to be filed. In due course, the case came up for trial before the learned Additional Sessions Judge, Deed. Charge under Section 302 IPC was framed. The appellant denied the charge and claimed trial. The prosecution in support of its case examined as many as 13 witnesses and exhibited 15 documents and three articles. In the statement under Section 313 Cr.P.C., the appellant claimed innocence. Two witnesses in defence, however, were examined. The learned trial Court on hearing the final submission convicted and sentenced the appellant as indicated here-in-above.
3. We have heard the rival submissions and carefully scanned the material on record.
4. The learned trial Court while convicting and sentencing the appellant, was of the view that the delay of four days, in lodging the F.I.R. was well explained, the presence of the eye- witnesses was natural and the knife, which was used in commission of the crime, was recovered at the instance of the appellant. The testimony of defence witnesses was rejected.
5. Mr. Chauhan, learned counsel appearing for the appellant vehemently canvassed that the appellant has been implicated falsely. There is inordinate delay in instituting the F.I.R. and time was taken to invent a story and to falsely implicate the appellant. The delay has not been properly explained and it is fatal to the prosecution. It is further contended that the testimony of the eye-witnesses is replete with contradictions and there were concocted witnesses and no reliance can be placed on their testimony. The medical evidence does not corroborate the eye-witnesses. The investigation is unfair and material witnesses have been deliberately with-held. In support of the contentions, learned counsel placed reliance on Awadhesh and Anr. v. State of Madhya Pradesh (1), Thulia Kali v. State of Tamil Nadu (2), State of Orissa v. Mr. Brahmananda Nanda (3), Din Dayal v. Raj Kumar alias Raju and Ors. (4) and Babuli v. State of Orissa (5).
6. Per contra, Mr. Rajendra Yadav, learned Public Prosecutor and Mr. Biri Singh, learned counsel appearing for the complainant supported the impugned judgment of the learned trial Court and canvassed that the presence of witnesses is most natural and if their testimony is scanned from the point of trustworthiness, they are most reliable witnesses. It is further contended that delay has been properly explained for instituting the F.I.R.
7. We have cautiously considered the arguments advanced in support of delay in instituting the F.I.R. Admittedly the written report was submitted to the S.H.O. Police Station Sikri, on October 14, 1997, at 7.00p.m. In the said report, the names of Darshan Singh and Pahalwan Singh were incorporated as eye- witnesses of the occurrence and Balvir Singh P.W. 3 and Pritam Kaur P.W. 4 were not named. Darshan Singh P.W.2 and Pahalwan P.W.I did not support the prosecution case and they were declared hostile. Before we proceed to scan the testimony of alleged eye- witnesses of the occurrence, we deem it appropriate to refer to the statement of Kanhaiya Lal A.S.I. P.W.9 stated that on October 11.1997, when he was posted as A.S.I, at Police Station Kotwali Alwar, he received a report from the Medical Jurist, Alwar, where he found dead body of Harbans Singh, who was identified by his father Sona Singh. Panchayatnama of dead body Ex. P.1 was drawn by him and Sona Singh, Darshan Singh, Kehar Singh, Pahalwan Singh, and Sunder were nominated as Panchas. He had drawn necessary memos Ex. P.4, and 5 and handed over dead body of Harbans Singh to Sona Singh. In his cross-examination, Kanhaiyalal deposed that he had received the information at about 9.30 a.m. and after entering it into Rojnamcha, he proceeded to hospital. He reached to the hospital around 10 a.m. When he made inquiry about the incident, witnesses refused to divulge the details, therefore, he could not enter those details in the inquest report Ex. P.1. This witness specifically deposed that when he asked Kehar Singh (son of the deceased) as to how his father sustained injuries, Kehar Singh refused to divulge the details and he did not lodge any report about the incident. Thereafter he made inquiry from Sona Singh, (father of the deceased and asked him to lodge the report but Sona Singh also did not lodge report and told him that he did not know about the details of the incident and will lodge the report after making inquiry in the village.
8. A look at the testimony of Kehar Singh P.W. 5 demonstrates that while his father Harbans Singh was going to Gurudwara at 6.00 p.m., appellant caught hold of him near the house of Santok Singh and started abusing him. Thereafter appellant inflicted knife blow on the right side of his chest, on nose, on stomach and intestines came out. When his father received injuries, he was at ten steps away at that time Balvir Singh, Darshan Singh, Pahalwan Singh and his mother Pritam Kaur were also present. This witness further deposed that Harbans was taken to the Hospital in jeep and around 2 a.m. and in the night he died. He further deposed that he did not lodge the report in the Police as he was under the impression that the report would have already been lodged by the police. In the cross-examination he has given two explanations for delay in lodging the report. His first explanation is that he was disturbed on account of the incident and second explanation is that he first cremated his father and performed Tiya Ceremony, then lodged the report. In his cross- examination, this witnesses at one place stated that he had given a written report to Alwar Police but in next breath, he deposed that he did not lodge the report. Their Lordships of the Supreme Court in Thulia Kali (supra) indicated that F.I.R. 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 importance of the report can hardly be overestimated from the standpoint of the accused. 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 culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in on the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that they delay in the lodging of the first information report should be satisfactorily explained. It was further held in that case that when an occurrence is not reported for more than 20 hours after the occurrence even though the police station is only two miles from the place of occurrence it is unsafe to base conviction upon the evidence.
9. Coming to the facts of the instant case, it may be noticed that A.S.I. Kanhaiyalal met witness Kehar Singh at Alwar Hospital and specifically questioned him about the incident and even a request was made to lodge the report but Kehar Singh refused to lodge the report but Kehar Singh refused to lodge the report and did not divulge the details of the incident, Kehar Singh then waited for four days and thereafter, a written report was lodged on October 14, 1997, at 7 p.m. with the Police Station Sikri. The explanation offered by Kehar Singh in not instituting the report forthwith, does not appear satisfactory. Observing silence before a police officer and taking four days time in reporting the matter to the police appears suspicious and strange to us.
10. In the case of Awadhesh (supra) their lordships of Hon. Supreme Court propounded that where the eye-witnesses were present at the spot and Police Station was only two furlongs away, delay in lodging of F.I.R. was highly suspicious.
11. In Din Daya's case (supra) it was held by the Hon. Supreme Court that where the witnesses did not disclose the name of the accused to the Police, it was not safe to place reliance on the testimony. Similar view was expressed in Babuli v. State of Orissa (supra), where the witnesses did not disclose the name of the accused for about 20 hours his testimony was not found reliable. In yet another case of State of Orissa v. Brahmananda (supra), it was indicated by their lordships of the Supreme Court that where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye-witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for nondisclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness.
12. In the case on hand, looking to the fact that no report was lodged by Kehar Singh at Alwar Hospital to Kanhaiyalal A.S.I, and even the details of the incident were not narrated, we find the presence of Kehar Singh on the spot most unnatural and we are of the view that at the time of incident, he was not present.
13. Now comes the testimony of Balbir Singh P.W.3 His statement under Section 161 Cr.P.C. was recorded on October 15, 1997, i.e. after five days of the occurrence. As already noticed by us, he has not been named in the F.I.R. as an eye witness. A careful look at his statement reveals that he is a chance witness and although he caught hold of accused and was very near to the deceased at the time of incident yet his clothes were not smeared with blood. Strangely in the site plan the I.O. marked him as only independent eye-witness. In his deposition, although he has stated that he was going towards jungle but from the site plan Ex.P.7, it appears that he was not going towards jungle and his presence was shown at places marked 'X' and 'A', which did not go towards jungle. He did not give any explanation as to why he kept mum and did not disclose the incident to any body for a period of five days. According to Section 39 of the Code of Criminal Procedure, it is the duty of every person, aware of commission of, or of the intention of any other person to commit any offence punishable under any of the sections of the Indian Penal Code to give information to the nearest Magistrate or Police Officer. But Balbir Singh mysteriously kept the silence and we are unable to place any reliance on his testimony.
14. P.W.4 Pritam Kaur the wife of the deceased, was also not named in the F.I.R. Her statement was also recorded under Section 161 Cr.P.C. on October 15, 1997, and we find her presence at the place of incident unnatural and no reliance can be placed on her testimony.
15. Learned trial court did not properly appreciate the evidence of prosecution witnesses. We, in view of the prosecution has not established the charge under Section 302 1PC against the appellant beyond reasonable doubt.
16. In the result, we allow the appeal, set-aside the impugned judgment dated 28.3.2000 of the learned trial Judge and acquit the appellant Khajan Singh from the charge under Section 302 IPC. The appellant is in jail. He shall be released forthwith, if not, required in any other case.
The appellant is lodged in Central Jail, Bharatpur, under such circumstances, a copy of this order may be transmitted to the Jaii Authorities, Bharatpur.