Rajasthan High Court - Jodhpur
Sandeep Singh And Ors vs State on 17 January, 2024
Bench: Arun Bhansali, Rajendra Prakash Soni
[2023:RJ-JD:45043-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 1884/2017
1. Sandeep Singh son of Shri Dungar Singh, Resident of
Gogatiya Bagawatan, Tehsil Taranagar, District Churu.
2. Jitendra Singh @ Dholu son of Mangu Singh, Resident of
Gogatiya, Tehsil Taranagar, District Churu. Lodged In
District Jail, Churu
----Appellants
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. J.S. Choudhary, Sr. Advocate with
Mr. Pradeep Choudhary, Mr. J.D.S.
Bhati & Ms. Sampati Choudhary.
For Respondent(s) : Mr. B.R. Bishnoi, P.P.
HON'BLE MR. JUSTICE ARUN BHANSALI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
JUDGMENT
17/01/2024 [PER HON'BLE Mr. ARUN BHANSALI, J.]
1. This appeal is directed against the judgment dated 06.11.2017 passed by Additional Sessions Judge, Rajgarh, District Churu in Session Case No.39/2014, whereby appellants have been convicted and sentenced as under: -
Appellant No.1 Sandeep Singh 148 IPC One year's simple imprisonment with fine of Rs.10,000/- with default stipulation to further undergo three months' additional simple imprisonment.
323/149 IPC Six month's simple imprisonment 302 IPC Imprisonment for Life with fine of Rs.10,000/- with default stipulation to further undergo six months' additional simple imprisonment. (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (2 of 22) [CRLA-1884/2017] 460 IPC Ten years' imprisonment with fine of Rs.5000/- with default stipulation to further undergo three months' additional simple imprisonment. Appellant No.2 Jitendra Singh @ Dholu 148 IPC One year's simple imprisonment with fine of Rs.10,000/- with default stipulation to further undergo three months' additional simple imprisonment. 323 IPC Six month's simple imprisonment 302/149 IPC Imprisonment for Life with fine of Rs.10,000/- with default stipulation to further undergo six months' additional simple imprisonment. 460 IPC Ten years' imprisonment with fine of Rs.5000/- with default stipulation to further undergo three months' additional simple imprisonment.
2. The appeal was filed, inter-alia, by Sandeep Singh, Surat Singh and Jitendra Singh @ Dholu, however, during pendency of the appeal, appellant Surat Singh died and, therefore, on 02.09.2022, the appeal was ordered to be abated qua appellant Surat Singh.
3. Brief facts of the case as per the prosecution are that on 10.07.2014 at about 09:00 am, complainant Idrish S/o Ali Mohd.
(PW.12) submitted a typed report (Exhibit-P/25) at Police Station Tara Nagar, District Churu alleging, inter-alia, that in the night of 09.07.2014 at around 11:30 pm, his brother, Mangilal @ Mangtu Khan called him through mobile phone of one Bajrang Saini of Tara Nagar, inter-alia, indicating that he was sitting at the hotel at Sahwa road and one Surat Singh of village Nyangali, came and asked him to remain sitting there and he took back his vehicle. His brother was apprehensive about his life and called him as soon as possible, on which the complainant alongwith Mehboob (PW.10) (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (3 of 22) [CRLA-1884/2017] and Imran (PW.20) went over to the hotel at Sahwa road and while they were talking with Mangilal, Sandeep Singh, Surat Singh, Sher Singh, Sajjan Singh, Sumer Singh, Surjeet Singh, Driver Dholu Singh alongwith 20-25 persons having Lathi(s) and iron rods in their hands, came there by three vehicles, alighted from the vehicles and entered into the hotel. Sandeep Singh shot fire from the pistol over the chest of his brother, on which he caught hold of Sandeep Singh from backside, where upon Sumer Singh inflicted Lathi blow over his back and head, as a result of which, Sumer Singh released him. At that time, manager of the hotel, namely, Pratap Singh and Bajranglal Saini, Mehboob, Imran and Mukesh Saini tried to caught hold of the accused by shouting, but accused threatened them with pistol and ran away while taking their vehicles. They took Mangilal to Govt. Hospital, Tara Nagar, from where he was referred to Churu Hospital, from where, he was referred to Bikaner, however, on the way to Bikaner Mangilal expired and as such they came back to Tara Nagar with dead body. It was alleged that accused have committed the occurrence in view of having land dispute between Mangilal and Sandeep Singh and prior to the said incident, Sandeep Singh had also attacked Mangilal and that dead body was lying in the mortuary and, therefore, action be taken.
4. On receipt of the typed report (Exhibit-P/25), a case vide FIR No. 215/2014 (Exhibit-P/26) was registered at Police Station Tara Nagar, for offences under Sections 302, 323, 460, 147, 148, 149 of IPC and Section 27 of the Arms Act.
5. After completion of investigation, charge sheet was filed against the appellants and Surat Singh (now deceased) for the (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (4 of 22) [CRLA-1884/2017] offences under Sections 302, 147, 148, 149, 323 & 460 IPC and Section 3/25 of the Arms Act before the competent court. The case was thereafter committed for trial to Sessions Judge and ultimately the case was tried by Additional Sessions Judge, Rajgarh, District Churu ('trial court').
6. The trial court thereafter framed charges against the accused, which they denied and claimed trial. The prosecution in support of its case examined as many as 22 witnesses and got exhibited 78 documents. On behalf of defence, one witness was examined and ten documents were got exhibited.
7. After the statements of accused under Section 313 Cr.P.C. were recorded, the trial court vide impugned judgment dated 06.11.2017 convicted and sentenced the appellants, as indicated herein above.
8. Learned counsel for the appellants made submissions that the trial court has not appreciated the evidence available on record in correct and proper prespective, which has resulted in erroneous findings. The findings of guilt arrived at by the trial court are based on conjectures and surmises. It was submitted that PW.1 Vinod, PW.2 Mohar Singh and PW.3 Pratap Singh who were the cited eyewitnesses of the incident, have not supported the prosecution story and turned hostile. There was unexplained delay in lodging the FIR and the genuineness of the prosecution story is doubtful. Further elaborating, it was submitted that in the night intervening 09.07.2014 and 10.07.2014, PW.21 Ashok Vishnoi, SHO of Police Station Tara Nagar, received a telephonic information allegedly from one Pratap Singh (PW.3) regarding the incident. The information was recorded in the 'Rojnamcha' at (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (5 of 22) [CRLA-1884/2017] Serial No.436 at 00:02 am and the SHO, went to the spot, however, despite the information of cognizable offences, FIR was not registered. The SHO reached the spot, where PW.3 Pratap Singh, it is claimed submitted a written report (Exhibit-P/3) at 01:15 am at C.H.C., Tara Nagar, however, even based on the said report, no FIR was registered. PW.3 Pratap Singh did not support the case of the prosecution and was declared hostile. It is claimed that after the death of Mangilal @ Mangtu Khan, PW.12 Idrish submitted a typed report (Exhibit-P/25) at Police Station Tara Nagar on 10.07.2014 at 09:00 am, which was registered as FIR No.215/2014. As per 'Rojnamcha', Exhibit-P/78A and statement of PW.12- Idrish, after the incident he was with his brother Mangilal up to time of burial on 10.07.2014 at 02/02:30 pm. Whereas, it is claimed that FIR was lodged at 09:00 am, which clearly is ante timed and ante dated report.
9. Submissions have been made that the SHO, Police Station Tara Nagar (PW.21- Ashok Vishnoi) reached the place of occurrence on the basis of 'Rojnamcha' (Exhibit-P/77A) and started the investigation. Whereafter reports Exhibit-P/3 was given to him and Exhibit-P/25 was produced before him after reaching police station, therefore, both the reports are post investigation documents and are hit by the provisions of Section 162 of Cr.P.C. and as such, not admissible in the evidence and cannot be read against the accused appellants.
10. Submissions were made that the prosecution has suppressed the very genesis and origin of the occurrence, inasmuch as according to prosecution, on the basis of report (Exhibit-P/25), FIR (Exhibit-P/26) was taken down in 'Rojnamcha' at Serial No.455, (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (6 of 22) [CRLA-1884/2017] however, the said entry has not been produced and exhibited. Further, as per Entry at Serial No.468 dated 10.07.2014 at 04:00 pm, Constable, Suresh Kumar went to Judicial Magistrate for producing the FIR No.215/2014 and as per Entry No.470 at 04:50 pm, Constable Suresh Kumar returned back to police station after handing over the FIR to the concerned Judicial Magistrate. However, a look at FIR (Exhibit-P/26) and the endorsement made on it, shows that the FIR was produced before the Jidicial Magistrate on 11.07.2014 at 04:55 pm by one Surendra Singh, FC, which creates a serious doubt on the prosecution story and clearly proves that the FIR in the present case, is ante dated and ante timed, which cannot be used against the appellants.
11. It was emphasized that the alleged incident took place on 09.07.2014 at 11:30 pm and the report (Exhibit-P/25) was submitted by PW.12 Idrish, allegedly at 09:00 am on 10.07.2014, which is delayed and the formal FIR reached the concerned Magistrate on 11.07.2014 at 04:55 pm, which was delayed by 32 hours, which clearly shows that the provisions of Section 157 Cr.P.C. have not been followed.
12. It was emphasized that there are serious contradictions in the statements of the eyewitnesses, which are also not corroborated with the medical evidence. While PW.4 Bajranglal, stated that Sandeep Singh, shot deceased Mangilal in chest; PW.5 Mukesh Saini stated that Mangilal was struck with bullet on his chest; PW.10 Mehboob stated that bullet struck him towards left nipple; PW.12 Idrish stated that bullet struck deceased on his chest and PW.7 Dr. Mahesh Kumar stated that bullet entry injury was at upper side of the stomach between eight and ninth ribs. (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (7 of 22) [CRLA-1884/2017]
13. The entire case of the prosecution was that the bullet was hit in front of the chest of the deceased, but the postmortem report indicated no injury on the front side of chest, but the same was shown as entrance wound at right side and upper part of abdomen between eight and ninth ribs and the bullet was found on the left side of fourth lumber vertebra. As such, for lack of medical evidence corroborating the alleged eyewitnesses' account, the said statement cannot be believed.
14. PW.21, Ashok Vishnoi, SHO Police Station Tara Nagar recorded the information (Exhibit-P/33) under Section 27 of the Evidence Act of Sandeep Singh regarding recovery of pistol. No independent witness was called at the time of alleged recovery and both the witnesses viz. PW.13 Hari Singh and PW.14 Surendra Singh are constables, who were working under the subordination of PW.21, Ashok Vishnoi, the SHO and the investigating officer. The pistol recovered was marked as 'F' and packet marked as 'A', were sent to FSL for analysis. After examination, the Regional FSL sent its report (Exhibit-P/57), which indicated that bullet from packet 'A' has not been fired from submitted 7.65 mm country made pistol from packet 'F'. The prosecution has failed to connect the recovered bullet with the recovered pistol, which clearly shows that the bullet was not even fired by appellant Sandeep Singh.
15. Further submissions were made that the entire ocular evidence is that of interested witnesses as PW.4 Bajranglal, PW.5 Mukesh, PW.10 Mehboob, PW.12 Idrish and PW.20 Imran, are all friends, driver and brother of the deceased. It was also emphasized that as per the prosecution story at the time of taking the deceased to hospital, blood was oozing out from his wounds, (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (8 of 22) [CRLA-1884/2017] which should have came in contact with the clothes of some of the witnesses, however, the blood stained clothes of the witnesses were neither recovered nor produced by the witnesses, which clearly creates doubt about the presence of the witnesses on the spot.
16. Further, no empty cartridge was found at the place of occurrence though the allegation is of firing several rounds and, therefore, it is apparent that the prosecution has failed to prove the case beyond reasonable doubt against the appellants and consequently, the judgment impugned deserves to be quashed and set aside.
17. Qua other appellant viz. Jitendra Singh, the alleged driver of the vehicle in which the accused allegedly travelled, it was submitted that there was no evidence against him for offence under Section 302/149 of IPC and as such, he has been wrongly convicted.
18. Reliance was placed on State of Punjab : Tarlok Singh : 1971 AIR SC 1221, Ishwar Singh vs. State of U.P. : 1976 AIR SC 2423, L/NK Mehraj Singh vs. State of U.P. : 1995 Cr.L.J. 457, Barket Ali @ Baki vs. State of Rajasthan : 2020 (1) Cr.L.R. (Raj.) 27, Kali Ram vs. State of Himmachal Pradesh : 1974 AIR SC 1, Sohan Singh vs. State of Rajasthan : 1992 (1) RLW 80, Guddi @ Jaspal Kaur vs. State of Rajasthan : 2018 (3) Cr.L.R. (Raj.) 1670, Hanja & Anr vs. State of Rajasthan : 1984 Cr.L.R. (Raj.) 46 and Pankaj vs. State of Rajasthan : 2016 Cr.L.R. (SC) 944.
19. Learned Public Prosecutor vehemently contested the submissions. It was submitted that the prosecution has proved its case beyond reasonable doubt and it is established from oral and (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (9 of 22) [CRLA-1884/2017] documentary evidence that offence, as alleged, has been committed by the appellants and, therefore, the appeal deserves to be dismissed. Submissions were made that totally baseless doubts have been sought to be raised by the appellants pertaining to the findings recorded by the trial court. It was emphasized that the plea pertaining to non-registration of FIR based on information (Exhibit-P/77A) is of no consequence as it was necessary that information containing the requisites, which was contained in the typed report Exhibit-P/25, only could be registered. Further submissions were made that fact of Entry No.455 on 'Rojnamcha' was not produced, is of no consequence, inasmuch as a presumption arises under Section 114 (d) of the Evidence Act about the official acts being in order. It was emphasized that only on account of delay in sending the copy of FIR to the area Magistrate cannot vitiate the trial, as no prejudice was caused by the delay in sending of FIR to the Magistrate. In the alternative, it was submitted that the alleged defective investigation cannot affect the merits of the case. The evidence of the star witness viz. PW.12 Idrish is unshaken, who himself was injured and merely because he was relative of the deceased, his evidence cannot be discarded. The incident has been proved by PW.4- Bajranglal, PW.5- Mukesh Saini, PW.10- Mehboob and PW.20- Imran.
20. With regard to bullet, not matching the pistol, it was submitted that the incident occurred on 09.07.2014 and the accused was arrested on 17.07.2014 and recovery was made on 19.07.2014, during which he had sufficient time to replace the weapon in question and, therefore, the said aspect would not (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (10 of 22) [CRLA-1884/2017] affect the case in any manner. It is prayed that the appeal be dismissed.
21. Reliance was placed on Tapinder Singh vs. State of Punjab :
AIR 1970 SC 1566, Ombhir Singh vs. State of U.P. (2020) 6 SCC 378, and Dhanraj Singh @ Shera vs. State of Punjab : (2004 (3) SCC 654.
22. We have considered the submissions made by counsel for the parties and have perused the material available on record.
23. The sequence of events, as disclosed from the record, reveals that Entry No.436 at 00.02 am was recorded in 'Rojnamcha' on 10.07.2014, inter-alia, indicating that by telephone, Pratap Singh (PW.3) informed that at his hotel Veer Tejaji, an altercation took place and firing has taken place, those indulging in fighting have beaten Idrish, the caller and others, and have shot Mangtu Khan. The wrongdoers were Sandeep Singh, Surat Singh, Sajjan Singh, Dholia, Sumer Singh etc. These persons have damaged his hotel and Mangtu Khan's car. It is further indicated that said entry was made on the basis of said telephonic information, and thereafter SHO Ashok Vishnoi with Kishanlal etc. started for Sahwa road, hotel Veer Tejaji and charge of the police station was given to Om Prakash, ASI. Whereafter, it is revealed that a written report (Exhibit-P/3) was allegedly given by Pratap Singh to the SHO at 01:15 am at CHC, Tara Nagar, wherein it was, inter-alia, indicated that at 11:30 pm, he alongwith Mangilal, Mohar Singh, Bajranglal Saini, Rafique were sitting at the hotel when Surat Singh and his driver came in a white camper vehicle. Mangilal also came when he was talking to the driver. Whereafter the car went away and after 15-20 minutes, (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (11 of 22) [CRLA-1884/2017] three camper vehicles, wherein Sandeep Singh, Sajjan Singh, Surat Singh and 20-30 other persons came to the hotel. Sandeep Singh and Surat Singh were having pistols, rest of the persons were having iron rods and sticks. After sometime, Idrish, brother of Mangilal, also came there. Sandeep Singh and Surat Singh told his friends, those who came with them, that kill them, do not leave anyone alive. Sandeep Singh shot at Mangilal in his stomach. Mangilal fell down there itself. Thereafter firing took place and the accused ran away. The said sequence of the information is followed by a typed report (Exhibit-P/25) at 09:00 am on 10.07.2014 by PW.12- Idrish, brother of deceased Mangilal; the contents whereof have already been noticed hereinbefore. The report (Exhibit-P/25) was converted into FIR (Exhibit-P/26), wherein reference was made at Entry No.455 of 'Rojnamcha'. The Rojnamcha entries, which has been produced as Exhibit-P/77A and Exhibit-P/78A, do not contain the said entry No.455, rather Exhibit-P/78A starts at Entry No.467 at 04:00 pm, wherein the SHO has indicated the sequence of events starting from Exhibit-P/ 77A on receiving telephone call, till the said entry was made by him after the body of deceased Mangilal was buried.
24. Interestingly, FIR No.215/2014 (Exhibit-P/26), which was registered at Entry No.468 of the 'Rojnamcha' indicates that constable Suresh Kumar was sent for delivering the FIR to the Judicial Magistrate, Tara nagar. Entry No.470 indicates that said Suresh Kumar returned back at 04:45 pm after delivering the FIR to the Judicial Magistrate, however, the FIR (Exhibit-P/26) bears an endorsement of the Judicial Magistrate, indicating that FIR was produced at 04:55 pm on 11.07.2014 by Surendra Singh of Police (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (12 of 22) [CRLA-1884/2017] Station Tara Nagar. It is surprising to note that while the Entry at serial No.470 indicates that Suresh Kumar returned back to police station at 04:45 pm after delivering FIR on 10.07.2014, however, the endorsement made by the concerned Magistrate on FIR (Exhibit-P/26) indicates that the same in fact was delivered at 04:55 pm on 11.07.2014 by Surendra Singh. There is no explanation worth the name as to in case the FIR was in fact registered at Entry No.455 on 10.07.2014 at 09:00 am and was sent to Judicial Magistrate through Suresh Kumar, who delivered the same between 04:00 pm - 04:45 pm on 10.07.2014, how the FIR was indicated to in fact having been received at 04:55 pm on 11.07.2014 from one Surendra Singh of Police Station Tara Nagar. The said unexplained and glaring gap clearly shows that the indications made in 'Rojnamcha', the receipt of typed report (Exhibit-P/25) at 09:00 am on 10.07.2014 and its registration at the indicated time, is contrary to evidence available on record and the same apparently have been ante dated/ante timed by the prosecution for the reasons best known to them. The fact of the matter is that Rojnamcha Entries dated 10.07.2014 cannot be believed as the prosecution has failed to indicate as to what transpired between 04:45 pm when FIR was allegedly delivered by Suresh Kumar to Judicial Magistrate and the endorsement made by the Judicial Magistrate at 04:55 pm on 11.07.2014, when the FIR was in fact delivered by Surendra Singh.
25. The above aspect of ante dating/ante timing of the Exhibit- P/25 report, which has been registered as FIR (Exhibit-P/26) apparently, is also fortified from the statements of PW.12 Idrish, brother of the deceased and author of typed report (Exhibit-P/25), (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (13 of 22) [CRLA-1884/2017] wherein he has categorically indicated in his cross-examination that he himself got Exhibit-P/25 typed at bus stop and cannot indicate the name of the typist. The relevant part of the statement in his cross-examination reads as under:
"pq: ls esjs HkkbZ dks chdkusj vLirky ds fy;s jsQj dj fn;kA ysfdu jkLrs esa Mwaxjx< esa ekSr gks xbZ vkSj mldh yk"k ysdj rkjkuxj vLirky vk x;sA rkjkuxj vLirky vxys fnu lqcg lk<s ukS cts ge yk"k ysdj rkjkuxj vLirky igqapsA vkrs gh geus MkDVj dks eaxrw [kka dh yk"k dks "kox`g esa j[kok fn;k FkkA ftl le; igqaps iqfyl vk xbZ FkhA geus eaxrw [kka dh yk"k dks nksigj esa yxHkx nks <kbZ cts nQuk;k FkkA bl chp eSa vius HkkbZ dh yk"k ds ikl gh cuk jgkA "
In the above statement, PW.12- Idrish has clearly indicated that they reached Tara Nagar Hospital at about 09:30 am and the dead body was placed at mortuary and the deceased was buried at about 02:30 pm and during the said period, he remained with the dead body of his brother. Another important aspect which has been taken lightly by the trial court is that Exhibit-P/P-26 purportedly registered at 09:00 am on 10.07.2014 indicates that complainant Idrish was having bandage on his head, whereas Idrish (PW.12) in his cross-examination on his own stated that he did not show his injury to the doctor and also did not get it bandaged. His medical examination was done in the evening of the incident. After examination of the injury he was bandaged and x-ray was advised. The medical examination report of PW.12 is Exhibit-P/13 at 05:30 pm on 10.07.2014. The above aspect further fortifies the allegation of ante dating and ante timing of FIR (Exhibit-P/26).
26. From the above, it is more than apparent that the complainant PW.12- Idrish reached alongwith dead body to Tara (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (14 of 22) [CRLA-1884/2017] Nagar hospital at 09:30 am, where the body was kept in the mortuary and till the time the deceased was buried at about 02:00/02:30 pm, he remained with the dead body of the deceased, therefore, the claim made by the prosecution that the report (Exhibit-P/25) was got typed by him at bus stop and the same was produced at the police station at 09:00 am on 10.07.2014, is clearly against his own statement and fortifies the submission on behalf of appellants that typed report (Exhibit-P/25) and FIR (Exhibit-P/26) have all been ante dated/ante timed. The indications about the bandage on the head of Irdish at the time of lodging the FIR by the ASI and the actual time of his getting bandaged as per his own statement clearly establishes the said aspect. Further submissions made on behalf of appellants regarding genesis of the occurrence having been suppressed by the prosecution also gains credence on account of above explicit discrepancies available on record based on the documentary evidence.
27. Hon'ble Supreme Court in the case of Ishwar Singh (supra), inter-alia, observed as under:
"5. Mr. Frank Anthony appearing for appellant Ishwar Singh submitted that in affirming the Judgment of the trial Court, the High Court also overlooked certain important aspects of the case that the Sessions Judge had failed to consider. He pointed out that the F.I.R. which is stated to have been lodged at 9.05 A. M. on February 14, 1973 was sent out from the police station the next day, February 15; the time when it was despatched is not stated, but it appears from the record that the Magistrate received it on the morning of February 16. The Court of the Magistrate was nearby, which makes it difficult to understand why the report was sent to him about two days after its stated hour of receipt at the police station. Section 157 of the Code of Criminal Procedure, 1898 as well as of 1973 both require the first information report to be sent "forthwith"
to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (15 of 22) [CRLA-1884/2017] circumstance which provides a legitimate basis for suspecting, as Mr. Anthony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in Court differs at least in two very important particulars from that narrated in the F.I.R. Mahabir Singh, who lodged the first information report, stated in Court that he had invited some people to his house to effect a settlement between him and Ishwar Singh, and that he had also sent Ghanshyam to call Ishwar Singh there. The F.I.R. does not mention anything like this. From the F.I.R. it appears as if the accused persons came uninvited to his house, demanded why he had demolished the drain, and started assaulting him and the other persons who were present there. It is also difficult to understand why Mahabir should invite anyone to his house for a settlement, if really Ishwar Singh had permitted him to demolish the drain as he claimed. Further, the F.I.R. does not mention that Mahabir and Satyapal wielded lathis in their defence when attacked and that this resulted in some of the accused getting injured; but that is what both Mahabir (P.W. 1) and Satyapai (P.W. 2) stated in their evidence in Court. These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eye-witnesses "cannot be accepted at its face value", as observed by this Court in Mitter Sain v. State of U.P. AIR 1976 SC 1156."
28. The submissions made that document (Exhibit-P/26) cannot be relied as an FIR also has substance, inasmuch as the same is third document in the sequence of information of cognizable offences, received by the police qua the same incident. As per the prosecution's own case the first information (Exhibit-P/77A) was received on telephone from Pratap Singh (PW.3) at police station at 00:02 hours on 10.07.2014. Whereafter written report was given by Pratap Singh as Exhibit-P/3 at 01:15 pm on 10.07.2014. Thereafter, the purported report (Exhibit-P/25) was given at 09:00 am on 10.07.2014. With reference to provisions of Section 162 Cr.P.C., it was emphasized that as the report has already been received vide Exhibit-P/77A and Exhibit-P/3, FIR (Exhibit-P/26) (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (16 of 22) [CRLA-1884/2017] could only be taken as statement in the course of investigation and not an FIR.
29. This Court in the case of Hanja (supra), inter-alia, laid down as under:
"8. During the course of his statement in examination-in-chief, Kaduwa (PW 1) has stated that the report Ex.P1 was given by him to the police, he has further stated that the report was given orally and after the oral report had been made, the Head Mohrrir along with three constables came to the place where the dead body was lying and the report Ex.P 1 was written there and his thumb impression was obtained. From the aforesaid statement of Kaduwa (PW 1), it does appear that the first information report Ex.P1 was prepared after the police had arrived at the scene of incident on the basis of the oral information given by Kaduwa (PW 1) at police station Kherwada and the thumb impression of Kaduwa (PW 1) was obtained on the said report at the scene of the incident. This would show that the report Ex.P1 was prepared after the information about the crime has been received by the police and the investigation had commenced and the police officer had arrived at the scene of the incident. The report, Ex.P1, is therefore, a post- investigation document and it is inadmissible in evidence."
30. Suppression of genesis of the occurrence is also apparent from the fact that PW.10- Mehboob indicated that he alongwith Imran brought Mangtu and Idrish to Tara Nagar Hospital. Whereafter statements of Mangtu were recorded. Similarly, PW.20 Imran indicated that Mangilal and police had interaction, wherein he (Mangilal) indicated that Sandeep Singh fired at him. Police took signatures of Mangilal in the hospital, as to what was indicated by Mangilal, he was not aware. When Mangilal signed, while he alongwith Idrish and Mehboob were there. Police and Mangilal had interaction for five minutes. The interaction between the police and Mangilal was after he was given treatment, however, the said aspect regarding statement given by Mangilal, as indicated by Mehboob (PW.10) and Mangilal signing something (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (17 of 22) [CRLA-1884/2017] before the police, as indicated by PW.20 Imran, have been clearly suppressed by the prosecution.
31. The undisputed conclusion, which can be drawn from the material available on record is that the prosecution has tried to suppress the original version of the FIR and the very registration of FIR, on the basis of report (Exhibit-P/25), is seriously questionable. It is an admitted position, as reflected from oral as well as documentary evidence, that the SHO received telephonic information of the incident, reached the place of occurrence and received another report (Exhibit-P/3) at 01:15 am. Thus, there was no reason as to why the SHO didn't proceed to promptly register the FIR on the basis of written report (Exhibit-P/3) by forwarding the same to police station. The patent lacunae in the prosecution case in not registering the FIR, based on Exhibit-P/3, coupled with the statements of PW.10- Mehboob and PW.20- Imran, regarding recording of statement of deceased Mangilal by the police, which do not find mention anywhere in the record, creates a doubt about the entire investigation conducted and the prosecution launched by the complainant.
32. The overall impact of above fact situation is that FIR (Exhibit-P/26), as noticed, is apparently ante dated and ante timed, the same in the light of provisions of Section 162 Cr.P.C., is apparently inadmissible. There is huge delay in sending the FIR to the court concerned.
33. Insofar as the telephonic message (Exhibit-P/77A) as recorded in the 'Rojnamcha', report (Exhibit-P/3) are concerned, its author Pratap Singh, owner of the hotel, having turned hostile, the said documents also apparently are inadmissible in evidence. (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (18 of 22) [CRLA-1884/2017] As already noticed hereinbefore, the prosecution relied on testimonies of PW.1- Vinod, PW.2, Mohar Singh, PW.3 Pratap Singh as independent eyewitnesses, all these three eyewitnesses have turned hostile. PW.4- Bajranglal is the brother of deceased, PW.5- Mukesh is the friend of deceased and PW.12- Idrish is also brother of deceased; while PW.10- Mehboob and PW.20 Imran are the relatives of deceased Mangilal, who have been projected as eyewitness. The claim of all the eyewitnesses has been that on account of receiving gunshot injury, the deceased was bleeding profusely and that they accompanied/travelled with him from Tara Nagar to Churu and returned back and handled the injured and after the death his body and PW.10 Mehboob and PW.20 Imran specifically claimed that their clothes were blood stained, however, the clothes of the witnesses were not recovered/seized by the police, which were essential to support their presence at the time of incident and therefore, creates a doubt about the presence of said witnesses at the place of occurrence.
34. Hon'ble Supreme Court in the case of Pankaj (supra), inter- alia, laid down as under:
"Though PW-8 specifically mentioned that he took the deceased to the hospital and the blood was oozing from his body, it is not understandable that during investigation why the blood stained clothes were not seized by the investigation officer and why he did not resist at the relevant time, which also makes his presence highly suspicious."
35. There are serious contradictions pertaining to the place, where the bullet hit the deceased. While PW.4- Bajranglal stated that, 'eqyfte lanhi us ikl esa vkdj e`rd ekaxhyky ds Nkrh esa xksyh ekjhA '. PW.5 Mukesh stated that, 'muesa ls lanhi us e`rd ekaxhky ds lhus ij xksyh ekjhA ' PW. 10- Mehoob stated that, 'eaxrw ds xksyh ck;sa gkFk ds ckscs dh rjQ yxhA ' (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (19 of 22) [CRLA-1884/2017] PW.12- Idrish stated that, 'nksuks gkFkksa ls esjs HkkbZ ekaxhyky ds xksyh ekj nhA tks xksyh Nkrh ij ekjh FkhA' PW.7- Dr. Mahesh Kumar stated that, 'xksyh dk izos'k ?kko nkfguh lkbM esa isV ds mijh fgLles a vkBoh ukSaoh ilyh ds chp esa FkhA ,Dljs IysV ns[kus ij ,d cqysV fpUfgr gqvk tks ckabZlkbZM pkSFks yEcj ofVZcjgk (Lift side 4th lumber region) ds ysoy ij FkkA'
36. From the statements of above prosecution witnesses, the bullet was hit in front of chest of deceased, Mangilal, however, as per the postmortem report (Exhibit-P/12), there was no injury on front side of chest, but the same was shown as 'entrance wound is located at right side and upper part of abdomen between eighth and ninth ribs'. The x-ray (Exhibit-P/11) indicates that bullet was found on the left side of fourth lumber vertebra. The above medical evidence, which has come on record, pertaining to the place of entry of bullet, apparently does not corroborate with the statement of the prosecution witnesses, cited and produced as eyewitnesses.
37. Coming to recovery of weapon of offence recovered vide recovery memo (Exhibit-P/38) and marked as 'F', the firearm was recovered at the instance of appellant, Sandeep Singh, based on the information furnished by him under Section 27 of the Evidence Act. The bullet retrieved from the body of deceased was marked as 'A', and both weapon and bullet, were sent for analysis to FSL. After examination, the Regional FSL sent its report (Exhibit-P/57), which inter-alia indicated that, 'Based on comparison microscopic examination it is the opinion that submitted one .32 lead bullet (B/1) from packet "A" has not been fired from submitted 7.65 mm country made pistol (W/1) from packet "F".' It is apparent that the weapon purported to have been recovered at the instance of (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (20 of 22) [CRLA-1884/2017] appellant, Sandeep Singh, has not been used for firing the bullet in question. The submissions made by learned Public Prosecutor that as accused appellant, Sandeep Singh was arrested after about six days from the date of incident, he for purpose of misleading the prosecution has given wrong information. However, the result of above aspect is that the weapon used has not been recovered and the investigating officer has not indicated anything regarding the weapon used in this regard.
38. Insofar as the motive alleged for committing the offence is concerned, though PW.12 Idrish in his typed report (Exhibit-P/25) indicated that there was dispute between his brother Mangilal and Sandeep Singh in relation to a land and previously also Sandeep Singh had attacked his brother once, however, in his examination- in-chief, PW.12 has indicated that why they killed Mangilal, he cannot give the reason, only accused can give the reasons. There is apparent change in instance, while the report (Exhibit-P/25) indicates a dispute pertaining to land and in the statements the witness has changed his stand and indicated that he is not aware of the reason.
39. In view of what has been noticed hereinbefore, it is clear that there is no material on record to connect that the gunshot injury suffered by the deceased, was due to shot fired from firearm recovered from accused appellant. The bullet, which was recovered from the body of the deceased, from the FSL report it is apparent that the same was not fired from the recovered weapon. The prosecution has failed to prove the motive, inasmuch as PW.12- Idrish, brother of deceased, himself has taken contradictory stand and in absence of any specific motive, raises a (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (21 of 22) [CRLA-1884/2017] suspicion. As already notice hereinbefore, the genesis and the manner of the incident is doubtful and, therefore, the accused cannot be convicted. Non-registering the FIR despite receiving information from PW.3- Pratap Singh, registering the FIR on the basis of information given by PW.12 Idrish at 09:00 am on 10.07.2014, which as noticed hereinbefore, is wholly improbable. The delay in lodging of FIR, the same being ante dated and ante timed, which aspect has also been found established and failure of the prosecution in indicating the manner, in which the FIR reached to Judicial Magistrate on 11.07.2014 at 04:55 pm, besides the analysis made hereinbefore pertaining to the evidence led by the prosecution, which has failed to complete the chain of events, it would be unsafe to uphold the conviction of the appellant Sandeep and is, therefore, entitled to benefit of doubt. Interestingly, appellant Sandeep Singh has been acquitted of the offence under Section 3/25 of the Arms Act, which in terms is contradictory.
40. Coming to the case of appellant No.2- Jitendra Singh @ Dholu, none of the witnesses have made any allegation of any overt act on the part of said accused. The allegations were that around 20-30 people had come in three vehicles, which included the above appellant No.2. He has been convicted with the aid of Section 149 IPC. As the main accused has been accorded benefit of doubt, appellant No.2 is also entitled to be given the benefit of doubt and is, therefore, acquitted of the charges.
41. As a result of the discussion made hereinabove, the appeal preferred by accused appellants, Sandeep Singh and Jitendra Singh @ Dholu, succeeds and is hereby allowed. The judgment impugned dated 06.11.2017 passed by Additional Sessions Judge, (Downloaded on 28/01/2024 at 08:26:42 PM) [2023:RJ-JD:45043-DB] (22 of 22) [CRLA-1884/2017] Rajgarh, District Churu in Session Case No.39/2014 is quashed and set aside. The appellants are acquitted of the charges. They are in custody and shall be released from prison forthwith, if not wanted in any other case.
42. However, keeping in view the provisions of Section 437-A Cr.P.C., each of the appellants shall furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned Trial Court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, they shall appear before the Supreme Court.
(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J
(R)-DJ/-
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