Rajasthan High Court - Jaipur
(Suresh Kumar vs . State Of Rajasthan) on 25 February, 2016
Author: Prakash Gupta
Bench: Prakash Gupta
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R 1. D.B.Criminal Appeal No.977/2014 (Suresh Kumar Vs. State of Rajasthan) 2. D.B.Criminal Appeal No.1008/2014 (Satpal Singh Vs. State of Rajasthan) Date of Order ::::: 25.02.2016 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL HON'BLE MR. JUSTICE PRAKASH GUPTA Mr.S.S.Mahla ) Mr.Sanjay Mehla ) Smt.Sunita Mehla ) Mr.Ram Prasad Choudhary), for the appellants. Mrs.Sonia Shandilya,Public Prosecutor for State. BY THE COURT: (Per Hon'ble Agarwal, J)
Having been convicted and sentenced for the offence under Section 302 read with Section 34 IPC, the accused-appellants by way of these separate appeals under Section 374 Cr.P.C. have challenged the judgment and order dated 23.9.2014 passed by the Additional Sessions Judge No.2, Jhunjhunu in Sessions Case No.69/2012. Each of the appellants has been awarded sentence of imprisonment for life and fine of Rs.5,000/- and in default of payment of fine, to further suffer imprisonment for six months. The appellants were charged and tried on the premise that they in furtherance of their common intention to cause death of deceased-Shri Mohar Singh inflicted injuries which were sufficient to cause death in the ordinary course of nature on 19.12.2011 at about 8.30 p.m. near a liquor shop in village Natas. It was the case of the prosecution that a lathi and a broken liquor bottle was used by the appellants to cause injuries to the deceased.
Brief relevant facts for the disposal of these appeals are that informer-PW1-Shri Rajpal Singh, son of deceased, lodged a written report Ex.P1 on 20.12.2011 at 8.30 a.m. at Police Station Guda Gorji with the averment that on 19.12.2011 at about 8.30 p.m. when his father-Shri Mohar Singh reached near the liquor shop at Village Natas, the present appellants inflicted injuries to him by means of lathis and on information being provided to him about the incident by PW5-Shri Shravan Kumar, when they reached at the place of incident, they found their father unconscious. It was further alleged that they took Shri Mohar Singh to a Hospital at Jhunjhunu, but the doctor referred him to Jaipur after finding his condition serious. It was further alleged that as a result of injuries caused to his father he died in the way when he was being taken to Jaipur. On the basis of the aforesaid written report, FIR No.388/2011 came to be registered against the appellants for the offence under Section 302 read with Section 34 IPC and investigation commenced. During investigation oral as well as documentary evidence was collected and after usual investigation charge-sheet for the aforesaid offence was filed against the appellants. After the case was committed to the trial Court, the appellants were charged accordingly and in support thereof prosecution produced oral as well as documentary evidence. In the statement recorded under Section 313 Cr.P.C., each of the appellants denied the prosecution evidence and it was specifically stated by them that they have falsely been implicated but no evidence was produced in defence. Learned trial Court after hearing the parties found the appellants guilty for the aforesaid offence and feeling aggrieved they are before this Court by way of these separate appeals. It is to be noted that the sole eye-witness of the incident PW5-Shri Shravan Kumar during trial did not support the prosecution case and he was declared hostile. The learned trial Court has found appellants guilty mainly on the basis of oral dying declaration allegedly made by the deceased before informer PW1-Shri Rajpal Singh and PW4-Shri Rajendra Singh. As both these appeals arise out of the same judgment and order and are based almost on similar grounds, with the consent of learned counsel for the parties, the same were heard together and are being decided by this common judgment and order.
In support of the appeals, learned counsel for the appellants jointly raised the following grounds:-
(1) In order to prove the charge framed against the appellants, prosecution produced PW5-Shri Shravan Kumar as an eye witness, but he did not support the prosecution case and was declared hostile and there is no other credible evidence available on record connecting the appellants with the death of the deceased-Shri Mohar Singh.
(2) Learned trial Court has wrongly based the conviction of the appellants on oral dying declaration allegedly made by the deceased before PW1-Shri Rajpal Singh and PW4-Shri Rajendra Singh. The written report Ex.P1 lodged by the informer PW1-Shri Rajpal Singh, son of the deceased, does not contain this material fact and this alone shows that the theory of oral dying declaration is a cooked up story which was developed subsequently during the course of investigation. Although, first information report may not be an encyclopedia of facts about a criminal incident, but if it lacks some material fact about such an incident and if the lodger of the report during the course of investigation or trial develops a new story about such fact, the same becomes suspect unless sufficient explanation is furnished by him regarding the reason for which that material fact could not be mentioned in the report. In the present case, informer PW1-Shri Rajpal Singh although in his statement recorded under Section 161 Cr.P.C. and during the course of trial has tried to state that when they were shifting the deceased from the place of incident to a vehicle he disclosed that appellants are responsible to cause injuries to him by lathis, but no explanation has come from him for not mentioning this material fact in the first information report which otherwise mentions the names of the assailants as well as the source from which he came to know about the assailants.
(3) Although, PW4-Shri Rajendra Singh has claimed to reach at the place of incident alongwith PW1-Shri Rajpal Singh and he has further claimed that the deceased disclosed before them the name of appellants as assailants but the very presence of this witness at the place of incident is suspicious as his name does not appear in first information report Ex.P1. Admissions made by him during the course of his cross-examination strengthens the position that information about the death of the deceased was received by him some time in the morning of 20.12.2011 and he directly reached hospital where the deceased was brought dead. Shri Rajendra Singh has admitted in his cross-examination that he did not disclose about the incident to any person including his family members before funeral of the deceased was performed and this fact further shows that he neither reached at the place of incident alongwith PW1-Shri Rajpal Singh in the night of 19.12.2011 nor dying declaration was made by the deceased in his presence. If he would have reached at the place of incident in the night of 19.12.2011 alongwith Shri Rajpal Singh and deceased would have made oral dying declaration in his presence, in the natural course of human conduct, he would have disclosed this material fact atleast to his family members and his name would have mentioned in the FIR.
(4) The fact of reaching of Shri Rajpal Singh and Shri Rajendra Singh at the place of incident in the night of 19.12.2011 and shifting of deceased by them to a vehicle is doubtful by this reason also that their blood stained clothes were not recovered by the Investigating Officer. Adverse inference is required to be taken against the prosecution for non- recovery of the blood stained clothes. It must be held that their clothes were not blood stained and this fact rules out shifting by them of deceased from the place of incident to a vehicle. PW3-Shri Rohitash, a witness to some of the memos prepared by the Investigating Officer, in his cross-examination has said that the clothes of these witnesses were not stained with blood.
(5) From the statement of PW8-Dr.Mohanlal it is clear that as a result of injuries caused to the deceased he instantly became unconscious and there was no possibility of his regaining consciousness and, therefore, making of oral dying declaration by the deceased in the presence of aforesaid witnesses is totally ruled out more particularly in view of the fact that in the written report Ex.P1 also it is specifically mentioned that when PW1 reached at the place of incident he found his father unconscious and both these witnesses in their statements recorded during trial have admitted that the deceased after making dying declaration again became unconscious.
(6) PW1-Shri Rajpal Singh and PW4-Shri Rajendra Singh being close relatives of the deceased are highly interested and partisan witnesses and their evidence is liable to be discarded being unreliable for the aforesaid reasons.
(7) From the evidence available on record and more particularly from the admissions made by PW4-Shri Rajendra Singh in his cross-examination it is clear that a written report about the incident was submitted by PW1-Shri Rajpal Singh to a Police Officer who came to the Hospital at Jhunjhunu, but that report was neither recovered during investigation nor it was produced before the Court alongwith the charge-sheet and a material evidence has deliberately been withheld from the Court without any explanation and, therefore, adverse inference has to be taken against the prosecution to the effect that if that report would have been produced before the Court that would have gone against the prosecution case.
(8) Statements of PW1-Shri Rajpal Singh and PW4-Shri Rajendra Singh to the effect that when they reached at the place of incident appellants were present there and they ran away when they saw them are liable to be discarded. As per prosecution case Shri Rajpal Singh reached at the place of incident on being informed by PW5-Shri Shravan Kumar and therefore, some time have definitely been taken by the witness to reach at the place of incident and, therefore, it is beyond imagination that after inflicting injuries to the deceased the appellants were present there till the aforesaid witnesses reached and gave opportunity to them to saw them. Presence of appellants at the place of incident till Shri Rajpal Singh and Rajendra Singh reached there further becomes doubtful by the reason that this material fact is not mentioned in the First Information Report Ex.P.1 as well as in their statements recorded during investigation under Section 161 Cr.P.C.
(9) Recovery of lathi at the instance of appellant Satpal Singh and recovery of a broken liquor bottle at the instance of appellant Suresh Kumar cannot be held to be proved on the basis of evidence made available on record. Otherwise also there is no further evidence to connect the recovery with the incident.
(10) No specific enmity between the appellants and the deceased have been alleged even by the prosecution itself and in absence of any reason on the part of the appellants to cause death of the deceased, it was not safe to hold the appellants liable for the death of the deceased but learned trial Court did not consider that aspect of the matter in a proper manner.
On the other hand, learned Public Prosecutor controverting the submissions made on behalf of the appellants, submitted that learned trial Court after evaluating the evidence available on record and by recording cogent reasons in support of the impugned judgment has rightly held the appellants guilty for the offence for which they were charged and there is no reason to interfere in the same. It was submitted that although the fact of oral dying declaration by deceased was not mentioned in the First Information Report Ex.P1, but it is well settled legal position that first information report is not an encyclopedia and there is no necessity that each and every fact about the incident is to be mentioned in it. The fact of dying declaration cannot be lebelled as an afterthought merely because it was not disclosed in the FIR more particularly in view of the fact that in the statements recorded on 20.12.2011 under Section 161 Cr.P.C. during the course of investigation, the fact of making of dying declaration was disclosed by both these witnesses. Although deceased became unconscious as soon as he was inflicted injuries by the assailants but possibility cannot entirely be ruled out that he regained consciousness when PW1-Shri Rajpal Singh and PW4-Shri Rajendra Singh reached at the place of incident and they were shifting him from the place of incident to a vehicle for the purpose of carrying him for treatment to a hospital and during that short interval he disclosed names of appellants as his assailants. Although, PW8-Dr.Mohanlal in his cross-examination has opined that there is possibility that due to injuries mentioned in the postmortem report Ex.P10 a person may become unconscious and has further opined that if a person is old, there is no possibility of his regaining consciousness once he becomes unconscious as a result of these injuries, but no definite opinion has been given by him to the effect that due to injuries caused deceased instantly became unconscious and there was no possibility of his regaining consciousness even for a short time. Similarly, the witness has opined possible time of death of Shri Mohar Singh at 8.00 p.m. on 19.12.2011, but no definite opinion about time of death has been given . As per postmortem report Ex.P.10, deceased died any time between one to eighteen hours from the time at which the postmortem was conducted i.e. from 12.30 p.m. on 20.12.2011. This supports the case of the prosecution that Shri Mohar Singh died in the way to Jaipur when he was being taken there for further treatment. Presence of PW4-Shri Rajendra Singh at the place of incident on 19.12.2011 and disclosure of names of assailants by deceased in his presence cannot be doubted merely by the reason that his name was not mentioned in the FIR as a person who accompanied informer-PW1-Shri Rajpal Singh. Non-mentioning of his name in FIR is not a material omission giving rise doubt about his presence. Otherwise also, Rajendra Singh is not bound by the omissions in the FIR and his statement can be rejected or relied upon only on the basis of his statement without being influenced by the fact that his name does not appear in the FIR. There is no material contradictions, omissions, improvements or discrepencies in the evidence produced by the prosecution during trial so as to discard the entire prosecution case. So far as statement of PW5-Shri Shravan Kumar is concerned, his statement is liable to be discarded entirely as he was won over by the appellants during trial and he turned hostile.
Before adverting to the contentions made by the respective parties and evidence available on record, it would be useful to refer some case law relevant for the disposal of these appeals.
Hon'ble Supreme Court in the Case of State of U.P. Vs. Naresh & Ors. reported in Cr.L.J.2011 2162, has held that a mere relationship cannot be a factor to affect credibility of a witness. Evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. It was further held by the Hon'ble Court that in all criminal cases normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvements while deposing in the Court, such evidence can not be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. The Court has to determine after examining the entire factual scenario whether a person has participated in the crime or has fairly been implicated. Mere marginal variations in the statement of a witness cannot be dubbed as improvements as the same may be elaborations of statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discarded. In this case it was also held by Hon'ble Court that it is settled legal position that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The Court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused.
In the case of Animireddy Venkata Ramana & Ors. Vs. Public Prosecutor, High Court of Andhra Pradesh reported in (2008) 5 SCC 368, Hon'ble Supreme Court has held that each and every detail of the incident is not necessary to be stated in the first information report. A first information report is not meant to be encyclopaedic. While considering the effect of some omissions in the first information report on the part of the informant, a court cannot fail to take into consideration the probable physical and mental condition of the first informant. One of the important factors which may weigh with the court is as to whether there was a possibility of false implication of the accused. Only with a view to test the veracity of the correctness of the contents of the report, the court applies certain well- known principles of caution.
Hon'ble Supreme Court in the case of Gajoo Vs. State of Uttarakhand reported in 2013 Cr.L.J.88, has held that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called 'interested' only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished.
In the case of Dalip Singh Vs. State of Punjab sreported in AIR 1953 (SC) 364, it was held by the Hon'ble Supreme Court that A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
Again in the case of Sahabuddin and Anr. Vs. State of Assam reported in 2013 Cr.L.J.1252, Hon'ble Supreme Court has held that an interested witness is the one who is desirous of falsely implicating the accused with an intention of ensuring their conviction. Merely being a relative would not make the statement of such witness equivalent to that of an interested witness. The statement of a related witness can safely be relied upon by the Court, as long as it is trustworthy, truthful and duly corroborated by other prosecution evidence.
In the case of Laxman Vs. State of Maharashtra reported in 2002 Cr.L.J. 4095, Constitution Bench of Five Judges of Hon'ble Supreme Court has held that absence of certification of the doctor as to fitness of the mind of the declarant would not render the dying declaration not acceptable. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided that the indication is positive and definite.
In the case of Krishan Vs. State of Haryana reported in (2013) 3 SCC 280, Hon'ble Suprme Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law the dying declaration alone can form the basis for conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedure and practices, then, it may be necessary for the Court to look for corroboration of the same.
In the case of Vijay Pal Vs. State (Government of NCT of Delhi) reported in (2015) 4 SCC 749, it has been held by Hon'ble Supreme Court that the dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There cannot be any cavil over the proposition that a dying declaration cannot be mechanically relied upon. In fact, it is the duty of the Court to examine a dying declaration with studied scrutiny to find out whether the same is voluntary, truthful and made in a conscious state of mind and further it is without any influence. In that case, the dying declaration made by the deceased was relied upon to convict the accused although the deceased suffered 100% burn injuries. It was held that merely because the deceased suffered 100% burn injuries, the same cannot be deemed to render a person incapable of making a dying declaration. It was also held that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same.
In the case of State of Uttar Pradesh Vs. Krishna Master & Ors. reported in (2010) 12 SCC 324, Hon'ble Supreme Court has held that non-mentioning about the oral dying declaration in FIR lodged by witness before whom dying declaration was made or in his statement recorded under Section 161 Cr.P.C. cannot be a ground for disbelieving it, if testimony of witness inspires confidence of the Court. It was held that the hard reality of life is that the person who has lost kith and kin in horrific incident is likely to suffer great shock and therefore law would not expect him to mention minutest details either in his FIR or statement under Section 161 Cr.P.C. It was also held by the Hon'ble Court that Court should read evidence of a witness as a whole and if on such reading it appears to have a ring of truth, then discrepancies, inconsistencies, infirmities or deficiencies of minor nature not touching core of the case cannot be ground for rejecting the evidence. The Court should sift the evidence to separate falsehood from truth and it should not adopt a hypertechnical approach. It was further held that FIR should contain basic prosecution case. Mention of minute details of prosecution case or evidence on which prosecution proposes to rely at trial not necessary. It was also held that the witnesses whose names are not mentioned in the FIR but examined during the course of trial can be relied upon for the purpose of basing conviction against the accused.
In the case of State Tr.P.S.Lodhi Colony, New Delhi Vs. Sanjeev Nanda reported in 2012 (4) Cr.L.J. 4174, Hon'ble Supreme Court has held that witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding peoples faith in the system. Courts, Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation.
The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. What evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.
In the present case, in order to prove the charge against the appellants, PW5-Shri Shravan Kumar was produced as a sole eye witness, but during trial he did not support the prosecution case and turned hostile, but in his examination-in-chief he has admitted that on 19.12.2011 he found Shri Mohar Singh lying unconscious at about 8.15 p.m. near the liquor shop of Village Natas. Thus, this much is clear from his statement that Shri Mohar Singh was found in an injured condition near the liquor shop but his statement is of no help to the prosecution as to the appellants to be assailants.
The other evidence mainly relied upon by prosecution and which has been accepted by the trial Court is oral dying declaration allegedly made by the deceased when he was being shifted in injured condition from the place where he was found lying to a vehicle brought there by Shri Rajpal Singh to carry him for treatment to a hospital. Both Rajpal Singh (PW1) and Rajendra Singh (PW4) during trial have deposed that such statement was made by the deceased at the spot in their presence naming appellants as his assailants. In the ordinary course, the members of the family are expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognized the assailants. At this stage it is pertinent to note that it is nobody's case that the deceased did not know the appellants. On the basis of evidence made available on record it is to be considered whether the learned trial Court has rightly held that the deceased despite receiving several injuries was in a fit physical and mental condition to make such a declaration and in fact such a statement was made by him. It is an admitted position that the fact regarding oral dying declaration and presence of Shri Rajendra Singh at that time was not mentioned in the written report Ex.P1 lodged by PW1-Shri Rajpal Singh, son of the deceased, on 20.12.2011 at 8.30 a.m. It is to be noted that name of appellants was mentioned in the report as assailants and the source from which information was gathered by the informer about the assailants was also mentioned in the report. It was specifically mentioned by Shri Rajpal Singh in the report that when he reached at the spot he found his father unconscious. It was further stated in the report that they took Shri Mohar Singh to a Hospital at Jhunjhunu but at the same time it is relevant to note that in the statements under Section 161 Cr.P.C. recorded on 20.12.2011, both Shri Rajpal Singh and Shri Rajendra Singh stated the fact of oral dying declaration by deceased. In this fact situation and the evidence made available on record and in the light of well settled legal position first of all it is to be ascertained whether the oral dying declaration is to be discarded merely by the reason that it was not mentioned in the written report Ex.P1.
In his examination-in-chief in this regard PW1-Shri Rajpal Singh has stated that on information being received from Shri Shravan Kumar he alongwith Rajendra Singh reached at the place of incident and when they were shifting his father from there to a vehicle brought by them, his father told that appellants have beaten him with lathis. In his cross-examination the witness has admitted that in the first information report it was mentioned that his father was found unconscious when they reached at the place of incident whereas the fact about dying declaration was not mentioned in it, but explanation was not sought from him by appellants for not disclosing the fact of dying declaration in the report. In our opinion, without seeking explanation from the maker of the report, appellants cannot be allowed now to contend that the theory of dying declaration by deceased has subsequently been falsely developed during the course of investigation and it is liable to be rejected on this ground alone. In our opinion, if a fact upon which prosecution intends to rely during trial to prove charge against an accused and such fact is absent in a previous statement like FIR, not only attention of the witness should be drawn towards such omission during cross-examination but reason must also be sought from him for such omission. It is an elementary rule of evidence that if a former statement made by a witness is to be used for the purpose of contradiction, he must be confronted with that statement and be given opportunity of explaining any discrepancies. If opportunity is not afforded to the witness to explain the reason for that discrepancy, his present statement cannot be assailed merely by its omission in the previous statement. It is well settled legal position that first information report is not a substantive piece of evidence and it can be used either to corroborate the statement of the maker recorded during trial or to contradict him. In the present case, as PW1-Shri Rajpal Singh (informer) was not given opportunity to explain the discrepancy/omission about dying declaration in his previous statement i.e. FIR, it cannot be held that there is material improvement in the statement of the witness and fact of dying declaration has been falsely introduced during investigation or trial and it is liable to be rejected on that account only. It is to be noted that the fact of dying declaration finds place in his statement under Section 161 Cr.P.C. recorded on 20.12.2011 immediately after registration of FIR. Apart from that, there was no need for him to develop the theory of dying declaration in his statement under Section 161 Cr.P.C. as at that time PW5-Shri Shravan Kumar was available as an eye-witness.
In the case of State of U.P. Vs. Krishna Master (supra), oral dying declaration allegedly made by one of the deceased before his brother (informer) was relied upon by Hon'ble Court despite the fact that it was not mentioned in the FIR as well as in his statement under Section 161 Cr.P.C. as according to Hon'ble Court FIR need not be an encyclopaedia of minute details of the incident nor it is necessary to mention there in the evidence on which the prosecution proposes to rely at the trial. The basic purpose of filing FIR is to set the criminal law into motion and not to state all the minute details therein. As already noticed in the present case fact about oral dying declaration was clearly made by the witness in his statement under Section 161 Cr.P.C. recorded on 20.12.2011 immediately after registration of FIR.
PW4-Shri Rajendra Singh in this regard in his examination-in-chief has stated that when he alongwith Shri Rajpal Singh reached at the place of incident they found Shri Mohar Singh having injuries on his body and he named appellants as his assailants. In his cross-examination he has denied that he neither saw Shri Mohar Singh in injured condition nor names of assailants were disclosed by him in his presence. He has also denied the fact that when they reached at the place of incident, they found Mohar Singh unconscious and he remained in the same condition till his death. Statement of this witness has been assailed by the appellants mainly on the ground that his presence at the place of incident at the time of alleged oral dying declaration is doubtful as his name does not appear in FIR and he did not disclose about the incident to any person including his family members till the funeral of the deceased was performed. It is an admitted fact that despite Shri Rajendra Singh happens to be a close relative of Shri Rajpal Singh, his name does not appear in FIR as a person who accompanied him at the place of incident on information about the incident allegedly being given by PW5-Shri Shravan Kumar, but in our opinion merely by that reason his presence at the spot at the time of alleged dying declaration cannot be doubted. It is to be noted that fact of deceased making dying declaration and appellants being named by him as his assailants does appear in his statement under Section 161 Cr.P.C. recorded on 20.12.2011 immediately after registration of FIR. His presence at the spot is to be ascertained by evaluating his statement recorded during trial and not on the basis of omission of his name in the FIR which was lodged not by him but Shri Rajpal Singh. This witness is not bound by such omission in the FIR. It is well settled legal position that FIR is not a substantive piece of evidence and it can be used only for the purpose of corroborating, contradicting or discarding its author, if examined, and not any other witness. Non-appearance of his name in FIR cannot be a valid ground to doubt his evidence. There is no requirement of mentioning name of each and every witness in the FIR. Hon'ble Supreme Court in the case of Raj Kishore Jha Vs. State of Bihar reported in (2003) 11 SCC 519 has held that Non-appearance of name of a witness in first information report by itself cannot be ground to doubt his evidence. There is no requirement of mentioning of name of each and every witness in the FIR. Statement of such witness cannot be discarded on the ground that his name was not mentioned in the FIR. In his cross-examination the witness has said that first information report was written by Shri Rajpal Singh at his own and not on his dictation and it was not written in his presence. Thus, according to the witness contents of the report were not disclosed to him before it was lodged by Shri Rajpal Singh. It is to be noted that PW1-Shri Rajpal Singh does not say that FIR was written by him in the presence of Shri Rajendra Singh and contents of it were disclosed to him. In this situation it was not expected from Shri Rajendra Singh to raise objection about his name being absent in the FIR. In his cross-examination PW1-Shri Rajpal Singh has denied that name of Rajendra Singh was not mentioned in the FIR as he was not present and till then he was uncertain who are to be named as witnesses of the incident. The presence of Shri Rajendra Singh (PW4) at the time of alleged dying declaration cannot also be doubted by the reason that he did not disclose about the incident to any person including his family members before funeral of the deceased was performed. Although, the witness in his cross-examination has admitted that he did not disclose about the incident to any person including his family members till funeral but explanation was not sought from him for this non-disclosure. No suggestion was given to the witness to the effect that incident was not disclosed by him to any person because he did not accompany Shri Rajpal Singh at any point of time and fact of death of Mohar Singh came into his knowledge when his dead body was brought in a Hospital at Guda Gorji. From the statement of the witness it is clear that he was busy helping in the investigation and he got no time to disclose about the incident to any person. Otherwise also, it is clear that the fact about death of Shri Mohar Singh as a result of the incident came into the knowledge of the fellow villagers as soon as his body was brought to the Hospital and FIR was lodged. Otherwise also, non-disclosure of incident by this witness is not such a material fact giving rise suspicion about his presence at the spot. It is to be noted that PW3-Shri Rohitash in his cross-examination has said that in the morning of 20.12.2011, Shri Rajendra Singh from police station informed him about murder of Mohar Singh and upon such information he arrived at police station at 8.45 AM from his village and there he found both Rajpal Singh and Rajendra Singh.
So far as presence of Shri Rajpal Singh and Shri Rajendra Singh at the spot being doubtful by the reason that their blood stained clothes were not seized during the course of investigation is concerned, in their cross-examination they have admitted that when the deceased was being shifted to the vehicle clothes of all of them were got stained with the blood of the deceased. If the blood stained clothes were at all required to be seized during investigation, it was for the Investigating Officer to take necessary steps in that regard, but no explanation was sought from him during his cross-examination for this lapse. In our opinion, in absence thereof, appellants cannot be allowed to raise doubt about their presence on that account also. Lapse on the part of the Investigating Officer cannot be a valid ground to doubt presence of these witnesses at the relevant time and it is also not a material fact going to the root of the case. When both these witnesses in their cross-examination have admitted about their clothes being blood stained and their presence have been doubted by the appellants for their clothes being not seized during investigation, the admission made by PW3-Shri Rohitash is of no consequence.
Now, it is to be considered whether deceased was not in a fit physical and mental condition even for a short-while to make the alleged oral dying declaration ?
In the first information report it was stated that when they reached at the place of incident Shri Mohar Singh was found unconscious. It was also stated that when he was taken to a Hospital at Jhunjhunu for treatment, he was referred to Jaipur by the doctor after finding his condition serious he died in the way to Jaipur as a result of injuries inflicted by lathis. In the first information report fact of deceased regaining consciousness even for a short while and capable to make any statement was not mentioned. PW5-Shri Shravan Kumar, on being cross-examined by the Public Prosecutor, denied that on information given by him on telephone Shri Rajpal Singh and Shri Rajendra Singh arrived there with a vehicle and Shri Mohar Singh was in a fit condition to speak till they reached Jhunjhunu. On cross-examined by appellants he admitted that Shri Rajpal Singh came there after an hour and he, Rajpal Singh and deceased were together. He further said Mohar Singh died before Shri Rajendra Singh came and Shri Mohar Singh never regained consciousness and was unconscious till he died. From the reading of the whole of the statement of the witness it is clear that he accompanied Shri Rajpal Singh and Shri Rajendra Singh when the deceased was taken to a Hospital at Jhunjhunu. It is not the stand of the witness that Shri Mohar Singh died at the spot even before Shri Rajpal Singh and Rajendra Singh came there. It is to be noted that no specific question has been asked from the witness on behalf of the appellants about making of alleged dying declaration by the deceased when he was being shifted from the spot to a vehicle brought by Shri Rajpal Singh and Shri Rajendra Singh.
PW1-Shri Rajpal Singh in his cross-examination although has admitted that the fact of unconscious of his father was mentioned by him in the first information report and he has also admitted that when doctor examined his father at Jhunjhunu Hospital he was unconscious and was not in a position to speak but he has denied the suggestion that his father was continuously unconscious from the time he first found him at the place of incident till his death.
PW8-Dr.Mohan Lal, who was one of the members of the Medical Board, who conducted postmortem of the deceased, in his cross-examination has opined that a person may become unconscious as a result of injuries found on the body of the deceased. He has further opined that if an old person once becomes unconscious as a result of injuries mentioned in postmortem report Ex.P10, he may not regain consciousness. According to the witness possibility of death of deceased on 19.12.2011 at 8.00 p.m. is not ruled out. Reading of statement of this witness shows that no definite opinion has been given by him that looking to the nature of injuries found on the body of the deceased, he in any circumstance was not in a position to regain consciousness even for a short time and speak or make any statement. It is a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the Court is not obliged to go by that opinion. That apart, it would be erroneous to accord undue primacy to the hypothecal answers of medical witnesses to exclude the eyewitnesse's account which are to be tested independently. Where eyewitnesse's account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive. As already said in the present case it has not been opined by the doctor that deceased was not capable to make any statement after he received injuries.
In the present case, both PW1-Shri Rajpal Singh and PW4-Shri Rajendra Singh were subjected to a sufficiently lengthy cross-examination in respect of almost all aspects of the matter but their testimony could not be shaken in any manner. Although, there are some deficiencies, inconsistencies, improvements and omissions but they are of very minor and immaterial nature not going to the root of the case and the same are bound to come during the course of examination of a witness during trial. Both these witnesses in clear terms have deposed during trial how various successive events happened from the time they reached at the place of incident and found Shri Mohar Singh in injured condition till his death when he was being taken to Jaipur and also regarding their back journey to a hospital at Guda Gorji. Thereof, we are of the view that deceased was physically and mentally fit to make statement about his assailants and in fact such statement was made by him.
In the case of Vijay Pal Vs. State (Govt. of NCT of Delhi), dying declaration made by the deceased to her brother was believed despite the fact that deceased sustained 100% burn injuries. It was held by Hon'ble Supreme Court that 100% burn injuries cannot be deemed to render a person incapable of making dying declaration. Similarly, in the case of Mafabhai Nagarbhai Raval Vs. State of Gujrat reported in (1992) 4 SCC 69, it was held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same.
Now, it is to be seen whether PW1-Shri Rajpal Singh submitted a written report about the incident to police at Jhunjhunu Hospital contents of which were some what different from the allegations made in the FIR and, therefore, it was deliberately withheld from the Court and thus, adverse inference is required to be taken against the prosecution?
It is to be noted that no material is available on record showing even prima facie that fact of any such report was brought in the knowledge of Investigating Officer by any person including Shri Rajpal Singh after registration of FIR or otherwise the Investigating Officer by any other means came in the knowledge of such report and even then no steps were taken by him to seize and recover the same. No question was asked in the cross-examination of the Investigating Officer about existence of such report and deliberate withholding of the same due to different version of the incident in it. As per cross-examination of Shri Rajpal Singh when they reached at Jhunjhunu Hospital police also came there to whom incident was orally narrated by him as per his knowledge but according to him written notes were not prepared by the police. He has further stated that written report was neither sought from him by Jhunjhunu police nor he submitted any such report to it. No suggestion was given to the witness that a written report having a different version of the incident was in fact submitted by him to the Jhunjhunu police and by that reason it has deliberately been withheld from the Court. As per cross-examination of PW4-Shri Rajendra Singh police came to Jhunjhunu Hospital and a written report was given by Shri Rajpal Singh to Police at night near the bed where Shri Mohar Singh was getting treatment and that report was taken by the Police with it, but at the same time the witness has expressed ignorance about the number of pages the report carried, how many copies of the report were prepared and whether it was signed by Shri Rajpal Singh or not. The witness has denied the suggestion that police told them that if Shri Mohar Singh dies, a fresh report would be required to be given, otherwise case would be registered on the basis of report so submitted. The witness has also said that police was called at the Hospital by the doctors and injuries of Shri Mohar Singh were observed by the police also. According to Shri Rajendra Singh first report was submitted by Shri Rajpal Singh at Jhunjhunu Hospital whereas the report lodged at Police Station Guda Gorji is a second report. On further cross examination the witness has said that he did not read the contents of both the reports. He has also said that after report was submitted by Shri Rajpal Singh to police at Jhunjhunu Hospital, it is Rajpal Singh and not he who was interrogated by police and notes were prepared. According to the witness copy of the report was not provided to Shri Rajpal Singh. He further said that Shri Rajpal Singh was interrogated by Jhunjhunu police but not in his presence. No suggestion was made to the witness that version of the incident as narrated in the report allegedly submitted to police at Jhunjhunu was different from the version as given in the FIR. It is to be noted that no steps were taken by the appellants during trial to call the said report from Jhunjhunu police even after it came into their knowledge that such a report was submitted before police at Jhunjhunu Hospital.
In our considered opinion when Shri Rajpal Singh has specifically said that written report was neither sought by the police at Jhunjhunu Hospital from him nor he himself submitted such a written report, merely by reason of some admissions made by Shri Rajendra Singh in his cross-examination it cannot be held that any such written report was infact submitted by Shri Rajpal Singh to Jhunjhunu police more particularly in view of the fact that Shri Rajendra Singh did not read the contents of such report. From the perusal of evidence available on record at the most it can be said that when Shri Mohar Singh was brought at Jhunjhunu Hospital in injured condition and doctor found that injuries are result of some criminal act, on his information Jhunjhunu Police came to Hospital and interrogated Shri Rajpal Singh about the incident. In absence of suggestion to these witnesses about the contents of that report and the fact of such report has come into light first time during the course of cross- examination of Shri Rajendra Singh and steps were not taken by the appellants to call the report, it cannot be held that that report has deliberately been withheld by the reason that version of the incident narrated in that report was different from the FIR and, therefore, adverse inference is required to be taken against the prosecution.
It is also to be considered whether appellants have falsely been implicated in the case and whether injuries were caused to the deceased by appellants due to enmity? It was submitted by learned counsel for the appellants that no enmity or motive on the part of appellants or any of them has been shown by the prosecution and in absence thereof there was no reason for the appellants to cause injuries to the deceased. On the other hand, learned Public Prosecutor submitted that no reason has come on record for false implication of the appellant in the incident.
From the evidence available on record it is not shown that appellants were having any specific enmity with the deceased which prompted them to cause injuries to him. In FIR no enmity was alleged. In his examination-in-chief PW1-Shri Rajpal Singh without any certainty has said that his father may have been beaten due to some old enmity. In his cross-examination the witness has denied that there was dispute between him and appellant-Shri Satpal Singh. No other question was asked about false implication of the appellants. Shri Rajendra Singh (PW4) in his examination-in-chief has said that Shri Mohar Singh was beaten due to old enmity, but it was not further elaborated. No suggestion was given to the witness in cross-examination that appellants have falsely been implicated. Although, both the appellants in their statements recorded under Section 313 Cr.P.C. have taken the plea that they have falsely been implicated but in support thereof neither any material was placed on record nor evidence was produced. In the present case although, prosecution has failed to show enmity on the part of the appellants to cause injuries to deceased, but at the same time appellants also failed to laid foundation for their false implication. In view of the well settled legal position Shri Rajpal Singh and Shri Rajendra Singth cannot be lebelled to be interested witnesses merely because they happen to be close relatives of the deceased. When direct evidence in the form of oral dying declaration is available on record, absence of enmity or motive on the part of the appellants is of no consequence. We are satisfied that both Shri Rajpal Singh and Rajendra Singh are wholly reliable witnesses. There is no reason for them to leave the real culprits and falsely implicate the appellants in the incident merely by the reason that Shri Mohar Singh suffered unnatural death. According to Hon'ble Supreme Court witness may be called "interested" only when he or she derives some benefit from the result of litigation or in seeing an accused person punished. It is also well settled that prosecution is not supposed to prove motive when prosecution relies on direct evidence.
So far as recovery of weapons, allegedly used by the appellants, at their instance during investigation is concerned, we are satisfied that no credible evidence is available on record in support thereof. No evidence is also available on record to hold that the recovered lathis and broken glass bottle were infact used by the appellants to cause injuries to the deceased but merely by that reason the entire prosecution case can not be thrown out. In our view recovery of a weapon allegedly used in commiting a crime may be used as a corroborative piece of evidence but absence thereof cannot make a dent upon a case which is otherwise well proved. Similarly, in the facts and circumstances of the case, it cannot be believed that appellants were present at the place of incident when Shri Rajpal Singh and Shri Rajendra Singh reached there and they ran away only thereafter. As per prosecution case these two witnesses reached at the place of incident on telephonic information given by PW5-Shri Shravan Kumar and therefore, it is natural that some time would have definitely been taken by them to reach there and thereof, it is improbable that after inflicting injuries to the deceased, the appellants would wait for the arrival of these witnesses and would give opportunity to see them but this fact also cannot falsify the entire prosecution case.
Although, during the course of hearing of the appeals, it was not argued on behalf of the appellants that even if they are found involved in the incident, even then offence under Section 302 read with Section 34 IPC is not made out against them but looking to the gravity of the offence for which they have been held guilty, that question also requires out independant consideration. To resolve that question medical evidence available on record is relevant for consideration. As per postmortem report as many as ten anti-mortem injuries on various body parts of the deceased were found, out of them some were by blunt object and remaining by a pointed object. The injuries have been opined to be sufficient in the ordinary course of nature to cause death. The cause of death has been opined to be failure of heart and lungs as a result of excessive shock and hammarage. From the evidence available on record it is clear that the number of assailants was atleast two and two types of weapons were used by them to cause injuries. The number of injuries caused, the body parts at which the injuries were caused, weapons used and the opinion of the doctor clearly shows that the appellants were having intention to cause death of Shri Mohar Singh.
No other ground worth consideration was raised on behalf of the appellants to challenge the findings of the learned trial Court. In view of the reasons recorded by us, the contentions raised by the appellants are not legally tenable and they are liable to be rejected.
Consequently, as a result of above discussion, we do not find any merit in both the appeals, which are accordingly dismissed.
(PRAKASH GUPTA), J (PRASHANT KUMAR AGARWAL), J teekam (Reserved order)
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary