Rajasthan High Court - Jaipur
Kishansingh And Ors. vs State Of Rajasthan on 8 August, 1994
Equivalent citations: 1994CRILJ3503
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT J.R. Chopra, J.
1. This appeal is directed against the judgment of learned Addl. District and Sessions Judge, Rajsamand, dated 28-4-1989, whereby the learned Judge has held the accused-appellants Kishansingh, Bhomsingh and Sawaisingh guilty of the offence under Sections 302, 460 and 323, IPC and, has, however, acquitted them of the offence under Section 307, IPC. For the offence under Section 302, IPC, each one of them has been sentenced to undergo life imprisonment together with fine of Rs. 200/-. For offence under Section 460, IPC, each one of them has been sentenced to undergo 3 years' rigorous imprisonment together with fine of Rs. 100/- and, for offence under Section 323, IPC, each one of them has been sentenced to undergo one year's rigorous imprisonment. All the substantive sentences have been ordered to run concurrently. In default of payment of fine of Rs. 200/-, they have been ordered to undergo 6 months' simple imprisonment each and for default in payment of fine of Rs. 100/-, they have been ordered to undergo 3 months' simple imprisonment each.
2. The facts necessary to be noticed for the disposal of this appeal, briefly stated, are that on 24-3-1986, Daulsingh Rawat, resident of Baar, Tehsil - Bhim, lodged a written report before the S.H.O., Police Station, Bhim, whereby he informed the Police that somebody has cruelly beaten Roopsingh and his wife Mst. Dakhu, in the night intervening between 23rd and 24th March, 1986, on account of which Mst. Dakhu died and Roopsingh is still alive, though injured. He has suspected that this must be the act of one Sawaisingh, who is son-in-law of Roopsingh, and his brothers, because, for quite some time enmity existed between Roopsingh and his son-in-law Sawaisingh and his family because Roopsingh was not sending his daughter-Kesar with Sawaisingh to whom she has been given in 'Nata'. It is alleged Mst. Dakhu's dead body was lying near the well of Roopsingh whereas Roopsing is lying in a nearby field in an injured condition. On further investigation by the Police, it was stated by Dhaulsingh in the F.I.R. that both these persons have been beaten with lathis. He has informed the Police that on 23-3-1986, at about 9.00 a.m. certain persons assembled on the 'choki' of Udaisingh. They were Udaisingh son of Tulsasingh, Kishansingh son of Dungarsingh, Kishansingh son of Devisingh, Laxman Singh son of Mansingh, Ratansingh son of Devisingh and Sawaising son of Devisingh. Sawaisingh was armed with lathi and Udaisingh was saying that he will go to jail but he will kill the family of Roopsingh. On this report, a case under Sections 302, 307 and 149, IPC was registered. The site was inspected and site-inspection memo Ex. P 2 along with site-plan was prepared. The house where the occurrence has taken place was also inspected and the site-inspection memo Ex. P4 and the site-plan were prepared. The blood-stained soil was also collected from the place of occurrence and inspection-memo Ex. P 5 was prepared. Certain golden ear-rings were also found in the house of Roopsingh and recovery memo about this inspection was prepared, which is on record as Ex. P 6. The inquest memo of Smt. Dakhu is Ex. P7 on record. On the information of accused Sawaisingh and Kishansingh, the weapons (stick-wooden - 'bordi') were recovered. The recovery memos were prepared and are on record as Exs. P 8 and P 9. The report of post-mortem examination of Mst. Dakhu has been marked as Ex. P 10 and the injury report of Roopsingh has been marked as Ex. P 13 and his X-ray report as Ex. P 14. It was found that he had a linear fracture of right parietal bone. He was admitted in the Government Hospital, Beawar. The sticks were recovered on the information and at the instance of the accused persons have not been sent, for chemical or geological examination.
3. After usual investigation, the Police filed challan against these accused persons in the court of learned Munsif and Judicial Magistrate, Bhim from where they were committed for trial and the trial was held by Additional Sessions Judge, Rajsamand. All the accused persons were charged for offences under Sections 302, 307 and 460, IPC. The accused persons did not plead guilty to the charges and claimed trial where the prosecution examined as many as 15 witnesses in the case. Statements of accused persons were recorded under Section 313, Cr.P.C. They did not admit any of the allegations made against them and, therefore, the learned Addl. Sessions Judge after hearing both the parties, held them guilty of offences under Sections 302, 323 and 460, IPC and sentenced them as mentioned above. They, however, were acquitted of the charge under Section 307, IPC and hence, this appeal by them against the order of conviction and sentence, passed against them.
4. We have critically gone through the record of the case and have given our most earnest consideration to the rival submissions made by Shri T. S. Champawat, appearing for the appellants and Shri D. R. Bohra, learned Public Prosecutor, appearing for the State.
5. In this case, the first informant - P.W. 1 Dhaulsingh is not an eye-witness of the occurrence. He has only stated about the motive behind the crime and his suspicion, that because of the fact that Sawai Singh's wife Kesar, who happens to be daughter of deceased Dakhu and Roopsingh, was not sent to Sawaisingh, therefore, this occurrence has taken place. He has seem Mst. Dakhu dead and Roopsingh in an injured condition. According to him, 'odni' of Mst. Dakhu was found inserted in her private part but no injury has been found at that place. He has stated that on the previous day of the occurrence, when he was coming to his house from the market, near the house of Udaisingh he found Udaisingh, Kishansingh, Laxmansingh, Ratansingh and Sawaisingh etc. sitting there and Udaisingh and Sawaisingh were telling that they may go to jail but they will kill Roopsingh, his wife and his family. On the next day, he was informed by Gheesasingh, Ramsingh and Udaisingh that Roopsingh's wife has been killed and Roopsingh is lying injured and he saw them and thereafter he lodged the report. He denied that Roopsingh is his real nephew, he is his nephew under common fellowship of the village. On the basis of previous day's declaration made by Udaisingh and Sawaising, he suspected that these persons must have committed this offence. In the F.I.R., he has not stated the name of Sawaisingh as the person who declared that he will go to jail but will kill Roopsingh, his wife and family. According to his version as contained in Ex. P1, report of the incident made by hin, it was Udaisingh who declared that he will go to jail but will kill Roopsingh, his wife and family. The main witness of the occurrence is P.W. 2 Roopsingh, who is an injured witness and who is husband of the deceased. He has stated that he was sleeping with his wife in the house on separate cots inside the room. Their main door of the room was bolted from inside. 5-6 persons came to their house and in the dead of night when they sleeping inside the house, they were abusing him and his wife. Thereafter, it is alleged that these persons stoned the door of the room by which the door was broken open and thereafter Sawaisingh, Kishansingh and Bhomsingh came inside. Two persons, that is, Babusingh and Shrawansingh were standing outside. All these three persons were armed with lathis. Sawaisingh has a torch with him and he flashed the torch on them and, it was because of this that they could identify them. Bhomsingh and Kishan Singh belong to his village and Sawaisingh is his son-in-law. Firstly they inflicted injury on Mst. Dakhu on her chest, head, back etc. and these injuries were inflicted with lathis and also by fists and thereafter Bhomsingh thrushed 'odni' of Mst. Dakhu into her private part. Bhomsingh inflicted a blow with stone on the breast of Mst. Dakhu, which he has lifted from the wall. After beating her they threw her outside the room and thereafter they started beating him. He also stated that he was asked to sit in one corner and she (his wife-Mst. Dakhu) was beaten and he was only sitting in the room as. an onlooker. He too was beaten by Sawaisingh with lathi. Kishansingh and Bhomsingh gave lathi blows on his legs, back etc. His head was injured. They also inflicted blows with fists and lathis. They then threw the dead body of his wife near the well and he was also thrown away in a field. He also stated that these persons tied a cloth on his eyes. The cause of this incident has been shown to be enmity relating to Mst. Kesar who happens to be daughter of Roopsing. It is alleged that Sawaisingh used to beat her. His brother came to his house for taking her. They called a 'panchayat' and Sawaisingh was asked to give it in writing that he will not beat Kesar but he refused to do so. It was also stated that in the Beawar Hospital he has been treated. He says that he became unconscious while he was being beaten. He has stated that first, his wife was beaten and that the accused persons were identified because of the torch which Sawaisingh carried and flashed towards them.
6. He was confronted with his Police statement Ex. P2 in which it has not been mentioned that Sawai Singh was carrying any torch and has flashed it. He offered no explanation as to why this fact is missing in his Police statement Ex. P2. In his cross examination, he was confronted with portion A to B of his Police statement wherein he stated that he. and his wife were initially beaten by fists and legs and then they were forcibly dragged in 'guwadi' (chowk) of the house and entire beating withl lathis took place in 'chowk.' of the louse and not inside the room. No beating with lathis took place in the room but it took place in the chowk. Now he has stated that it is wrong that the beating took palce in the 'chowk. He stated that he has not made this statement, that is, portion A to B to the Police statement (Ex. P 2) before the Police. Even the fact that Bhomsingh thrushed 'odni' with the help of lathi into Mst. Dakhu's vagina is also missing in the Ex. P2. He has stated that when he gave the Police statement, his mind was not properly working. He was examined by Police on 10-4-1986 whereas the occurrence took place on 24-3- 1986. As per him, all the five-six persons were outside his room and were abusing him and his wife. Two persons in that party of 5-6 persons, where Shrawansingh and Babusingh. They have now been examined as Prosecution Witnesses. We will discuss their testimony little later but presently we shall discuss about motive behind the occurrence.
7. Mst. Kesar was initially married at Chaturpura. Thereafter, she was given in 'nata' at Kharda village and thereafter, she was given in 'nata' to Sawaisingh. In the cross examination, PW 2 Roopsingh has admitted that no light was available in their house when they were sleeping. After the torch was flashed by Sawaisingh, they identified the accused persons. They first gave beating to his wife inside the room and thereafter she was thrown in the 'chowk' and, till his wife was given beating he was asked to sit in one corner. This was not his case that when his wife was being given beating he tried to intervene to rescue her. Rather, he says that his eyes were tied with a piece of cloth. Babusingh has been examined as PW 3 and he has turned hostile. PW 4 Shrawansingh is another person who,according to Roopsingh, was the companion of the accused persons but has now. been examined as, a prosecution witness. He has stated that these three persons went to the house of Roopsingh. He and Babusingh were there with them but they stayed little away and they saw, that these persons first broke open the doors of the house of Roopsingh and then they gave beating to both of them with lathis. He has stated that they tried to intervene but they too were beaten by Sawaisingh. No injury report of Babusingh or Shirawansingh has been produced: Roopsingh was his real uncle and still he (Shrawansingh) did not inform about this occurrence to anybody in the villageand his statement has been recorded after 15-20 days of the occurrence and, within those 15-20 days he did not inform to anybody as to who gave beating to Mst, Dakhu and Roopsingh: Even in the night, after the occurrence, he went to his field and did not care to inform anybody in the village about it. As per him, he also went with the injured Roopshigh to Beawar Hospital.
8. Now this statement appears to be totally unnatural. According to Roopsingh he was a person who came with the accused party who gave them beating with fists and lathis. A man, whose real uncle and aunt have been beaten before his eyes, will not, in the ordinary course of nature, keep quiet for 15-20 days and will not inform anybody; Normal human conduct is that he will go to the village and will tell every thing that has happened. He will also try to intervene. He has stated that he had intervened but this fact is not supported by statement of PW 2 Roopsingh. Rather, according to Roopsingh, he was forming part of the accused party. He has stated that he was standing a little away from the house. The beating was given inside the room. It was a dark night and so he simply could not have seen this beating. Be that as it may, this is entire prosecution evidence of the eyewitnesses about the occurrence that has taken place.
9. Mr. T. S. Champawat, learned counsel for the appellants, submitted that testimony of Shrawansingh cannot be believed about the occurrence because firstly, according to Roopsingh he was one of those persons who accompanied the acdused persons,secondly, his statement has been recorded 15-20 days after the incident and; thirdly, he did not inform about the occurrence to anybody in the village and, rather he has categorically stated that he has riot told Udaisingh and Ramsingh as to who has inflicted injury to Roopsingh. That is totally unnatural;. If he has seen the occurrence and has tried to intervene it and was given beating by Sawaisingh, firstly, he should have been the first person to inform Udaisingh and Ramsingh as to who were the assailants of Mst; Dakhu and Roopsingh and, secondly, he has categorically stated that he did not get himself examined by the Doctor about the injury received by him and, thirdly; it is difficult to believe: that he has seen the actual beating. So his testimony is totally unreliable.
10. P.W. 15 Ratansingh, S. H. O. was specifically asked as to why he has examined the witness so late to which he has replied that he examined the witnesses as and when they were available. This is no explanation whatsoever. He should have made efforts to examine material witnesses without delay.
11. Now we take the testimony of most important witness, that is, PW 2.- Roopsing. The occurrence has taken place in the night intervening 23trd and 24th March, 1986 and the statement of Roopsingh has been recorded by the S.H.O. on 10-4-1986. There is no explanation whatsoever as to why this important witness was exarnined so late. Even if he was admitted in the Beawar hospital and was unconcious for 6-7 days, which fact has not been proved, yet his statement could have been recorded soon after he regained consciousness, which was not done. Rather, he was examined by the Doctor and the Doctor has reported in Ex. P11 that his injuries are simple only. However, he advised for X-ray and on X-ray examination, it was found that he has a linear fracture of his right parietal bone. Doctor did not state that he ever found him unconcious. Doctor Akshay Chauhan's (PW 11) statement does not contain that Roopsingh was unconscious at the time of his examination. Thus, this unexplained delay of 17 days in examining this most important witness makes his testimony totally doubtful. In this respect, Mr. Champawat has drawn our attention to a Division Bench decision of this Court, rendered in Pyarelal v. State of Rajasthan (1987 Cr LR (Raj) 676), wherein learned Judges of the Division Bench observed that delay in recording the statement of the material witnesses casts a cloud: of suspicion on the credibility of the entire warp, and woof of the prosecution story. In that case, the Police recorded the statement of Prosecution Witness Hari Ram after 7 days though he was available in the village and was attending on the complainant party.
12. Here, of course, the injured was admitted in the hospital but he was discharged from the hospital and even if when he was admitted in the hospital, it was the duty of the S.H.O. to record his statement while he was admitted. It was not, the case of the prosecution that he was not available. PW 15 Ratanlal, S.H.O. was asked as to why he has recorded statement of Roopsingh so late. He stated that since the witness was not available, he examined him as and when lie was available. It was the duty of the Investigating Officer to record the statement of all available witnesses, specially of those witnesses who seem to be material in a case, without any delay.
13. Our attention was next drawn by Mr. Champawat to decision of their Lorships of Supreme Court in Ganesh Bhawan Patel V. State of Maharashtra , wherein their Lordships observed that a delay of few hours, simpliciter, in recording the statement of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case, but it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. In this case too, it appears to be so. No assailant was named in the F.I.R. Only a suspicion was expressed. Even Shrawansingh did not disclose the names of assailants for 15-20 days. It appears that S.H.O. took all this time to cook up a case against those persons and therefore, he examined the material witnesses so late. So much so, that the associates of the accused persons, that is, Babusingh and Shrawansingh were turned into prosecution witnesses instead of making them accused. This casts a serious reflection on the varacity of the prosecution case.
14. Our attention was next drawn to a Division Bench judgment of this Court, rendered in Mahaveer v. State of Rajasthan, reported in 1986 Cri LR (Raj) 750, wherein it was observed that though the incident took place on 22-9-1981 yet the main witnesses were examined by the Police under Section 161, Cr.P.C. on 24-9-1981. The delay in examining the witness by the investigating officer was not explained and, therefore, the learned Judge felt that this delay is fatal.
15. Our attention was next drawn to a decision of their Lordships of Supreme Court rendered in Balakrushna Swain v. State of Orissa , wherein their Lordships observed that unjustified and unexplained long delay on the part of Investigating Officer in recording statement of material eye-witness during investigation of murder case will render evidence of such witness unreliable.
16. In the instant case, Babusingh turned hostile and Shrawansingh is not reliable. Now, we are left with sole testimony of Roopsingh and, who, of course, is an injuried withness: Now, Roopsingh has stated that there was no light existing in his house on the night of occurrence. 5-6 persons came there. They were abusing him and his wife. It was dark mid-night. Now in order to establish identity at the trial, Roopsingh has introduced this fact that Sawaisingh was carrying a torch and he flashed it. This fact was totally missing in his Police statement Ex. P2, which was recorded 17 days after the occurrence and 'with which he confronted. The identification was possible only because of this torch, no other light was existing in the room, which was a dark night and it was still darker in the room where occurrence is said to have taken place. It has further been stated by him at the trial that entire beating took place inside the room whereas, in his earlier Police statement (Ex. P2) under portion A to B he had stated that only beating with fists and legs was given inside the room. He and his wife were brought out by these accused persons, in the 'guwadi or chowk' of the house and, there they were beaten by lathis. Thus, he has changed entire sequence of the events and has stated that the beating was given inside the room and that too in the manner that initially his wife was availed and he was made to sit in one side. He did not intervene at all to save his wife which is totally unbelievable and thereafter, he further stated, that first his wife was thrown outside the room and then he wag availed. No blood has been found inside the room. It has been found in the 'guwadi'. Thus, the place of occurrence too has been changed. It is not his case now that both were availed together, which appears to be the case set up by him in portion A to B of his Police statement (Ex. P2), from which he has resided now. He has stated that his eyes were tied with a piece of cloth. It is not stated by him when. If they were tied immediately on the entry of the accused person in his room, he could not have seen anything. He has stated that he became unconscious while he was being beaten. Still, he has stated that after beating of both of them was over, he was thrown in a nearby field and his wife was thrown near the joint, well. If he was unconscious, how could he know about it. He has also stated that Bhomsingh thrushed the 'odni' of Mst. Dakhu into her vagina with the help of a lathi. It was not so found by the Police when Mst. Dakhu's dead body's 'panchayatnama' was prepared. It has been specifically mentioned in part C to D of Ex. P7, 'panchayaituama' of dead body that no (sic) exists on the private, parts of Mst, Dakhu. To the same effect is the statement of P W 11 Dr. Akshay Singh Chauhan.
17. It is no doubt true that enmity was existing between him and his son-in-law for not sending his daughter to Sawaising's house and, that may be a strong reason for them to give beating to him but between a fact which may be true and which must be true lay a long distance that has to be travelled by the prosecution by leading clear, cogent and reliable evidence. Here it is a case of single witness, which is shifting his stand as regard identity of the accused persons, as regard to place of occurrence and the manner in which the beating has taken place and about.number of other facts discussed above. It cannot be treated to simple and, straight-forward statement made by Roopsingh.
18. Mr. Bohra, learned P. P. has drawn our attention to a decision of their Lordships of Supreme Court rendered in Jamna v. State of Uttar Pradesh , wherein their Lordships observed that evidence of injured witness, if it is found to be simple and straight-forward, that that the statement of the witness should be believed in recording a conviction.
19. This situation does not exist in this case, as aforesaid. Of course, it is not a case where witness has not been examined by the Police nor cited in the charge-sheet, as held in Ram Lakhan Singh v. State of Uttar Pradesh (AIR 1977, SC 1936) : (1977 Cri LJ 1566), relied upon by Shri T. S. Champawat; but, certainly it is a case which is based solely on the testimony of a single witness and, his testimony is not free from doubt because he is shifting his stand, about identity of accused persons. Out of those five persons, these 3 accused persons wer identified with the help of torch-light, which fact is missing in his earlier Police statement and, secondly, the persons, who were stated to be associated with three assailants, have been made eye-witnesses of the occurrence. Shrawan Singh is one person who is stated to be companion of these three assailants, and who has kept that event secret for 15-20 days without disclosing to anybody as to who has inflicted injury to Mst. Dakhu and Roop Singh, who happens to be his real uncle and aunt and, therefore, much reliance cannot be placed on the testimony of such a witness.
20. In this respect, we place reliance on a Division Bench decision of this Court, rendered in Nanka v. State (1979 Cri LLR (Raj) 193), para 8 as well as para 9 of that decision, wherein it has been observed by learned Judges that the testimony of sole eye-witness is not free from infirmities and is not such as implicit reliance could be placed on it and, therefore it was argued by Shri Champawat that the accused persons deserve benefit of doubt and consequent acquittal.
21. Our attention was also drawn to a decision of their Lorships of Supreme Court, rendered in Bhupendra Singh v. State of Punjab wherein, in para 6, their Lordships observed that evidence of an interested witness needs close scrutiny. A closer scrutity of the evidence would show that this witness (Roopi singh, P.W. 2), is not wholly reliable, as regard the circumstances whereby the identity of the accused were established and as regard to place of the occurrence and the manner in which it has taken place and about number of other facts. His evidence is unreliable and untrustworthy.
22. Our attention was next drawn to a decision of their Lorships of Supreme Court, rendered in Badri v. State of Rajasthan, reported in 1975 Cr LR (Raj) 678 : (1976 Cri; LJ 496). There, the only eye-witness modulated his evidence to suit the prosecution story and, therefore, no reliance was placed on his testimony and the accused persons were acquitted. Here too, Roopsingh has modulated his testimony to suit his convenience, if not the prosecution story. We need not repeat those grounds which make his version unreliable.
23. One more fact deserves to be noticed. Blood was found only in the 'chowk', at places I, J. and K. and at portion L outside the house. This is clear from the site inspection memo Ex. P 4 of the house of Roopsingh, which is proved by P.W. 15 - Ratanlal, the S.H.O, as also by P.W. 5 - Durgsingh. Thus, it is definite that the occurrence has not taken place inside the room. Only some beating with slaps and fists and legs might have taken place inside the room. All the beating with sticks has taken place in the 'chowk' of the house but that story has been abandoned by P.W. 2 -Roopsing and now accordingly; to him, entire beating has taken place inside the room and identification was possible with the help of torch. Evidence of Shrawansingh has been held to be unreliable by us and Babusingh has turned hostile. Thus, the stand now taken by P.W. 2 - Roopsingh in his court statement appears to be an after-thought story, which has been developed at the trial by him keeping in view the facts and circumstances of the case. Thus, the case of the prosecution against the accused appellants becomes doubtful about their participation in that occurrence. Even admitted that strong motive was there for the accused persons to commit this crime but that by itself is not sufficient to hold the accused persons guilty of the offences with which they have been charged. It is most unnatural that Roopsirtgh's wife was given beating by three persons, brutally, and he did not intervene and remained silent spectator, sitting in one corner of the room. This further shows that the evidence of Rooopsingh is not reliable enough to convict the accused persons of the alleged offence and the accused persons, therefore, deserve the benefit of doubt and consequent acquittal.
24. In the result, this appeal succeeds. The conviction and sentences recorded against the accused appellants-Sawaisingh, Bhomsingh and Kishansingh, for offences under Sections 302, 323 and 460 I.P.C., are set aside and they are ordered to be set at liberty forthwith, if they are not required in any other case.