Rajasthan High Court - Jaipur
Prem Shanker And Anr. vs State Of Rajasthan on 5 April, 2002
Equivalent citations: 2002(3)WLC471
JUDGMENT Sharma, J.
1. Instant appeals stem from the judgment dated August 22, 1996 of the learned Sessions Judge Sawai Madhopur in Sessions Case No. 36/1996 whereby the appellants Prem Shanker and Yogesh were convicted and sentenced as under-
Prem Shanker U/s. 302/34 1PC to suffer imprisonment for life and fine of Rs. 500/-in default to further undergo three months S.I. Yogesh U/s. 302/34 IPC to suffer imprisonment for life and fine of Rs. 500/-in default to further undergo three months S.I. U/s. 324 IPC one year R.I. and fine of Rs. 100 in default to further suffer one month S.I. Acquittal of other four accused Shatrughan. Sita Ram, Prahlad and Arun Kumar has however been assailed by the State of Rajasthan.
2. Incident giving rise to these appeals as per Parcha Bayan of injured Anil Sharma occurred on June 6, 1994 at 9.45 a.m. when on his shop Arpan Garments Anil was sitting alongwith his father Govind Prasad (deceased), brother Bhawani Shankar (injured) and uncle Nathu Lal (deceased), suddenly Yogesh, Prem Shanker, Sha-trugnan and two other persons-entered the shop and Prem Shankar dragged Govind Prasad out of the shop and inflicted blow with 'Gupti' on his back and Yogesh pierced Gupti on the right side of his chest. When attempt to save Govind Prasad was made by Anil, Bhawani, Shanker and Nathulal, they were also assaulted by the accused with Gupti and Knife. Govind Prasad fell down and was taken to the Hospital where he was declared dead. Police Station Man Town on the basis of said Parcha Bayan registered a ease bearing FIR No. 160/94 under Sections 147, 148, 149, 323, 323, 307, 452 and 302 IPC and Investigation commenced. Site was inspected autopsy on the dead body of Govind Prasad was conducted, injured were medically examined. Blood smeared soil was recovered and Parcha Bayan of Nathu Lal was recorded. Nathu Lal also died on June 7, 1994 and dead body of Nathu Lal was subjected to post mortem. Statements of witnesses were recorded, accused were arrested and at their instance weapons allegedly used in offence were recovered. On completion of investigation charge sheet was fifed. In due course the case came up for trial before the learned Sessions Judge, Sawai Madhppur. Charges under Sections 147, 302/149, 324/149, 449/149, 449, 324 and 302 IPC were framed against the accused, who denied the charges and claimed to be tried. The prosecution examined as many as 27 witnesses and exhibited 50 documents. In the explanation under Section 313 Cr.P.C. the accused claimed innocence and stated that they were falsely implicated. Four witnesses in defence were examined by the accused and 10 documents were got exhibited. On hearing final submissions learned trial judge convicted and sentenced the appellants Prem Shanker and Yogesh but acquitted Shatrughan, Sita Ram, Prahlad and Arun Kumar as indicated hereinabove.
3. At the outset it may be noticed that superstructure of the prosecution case is built on the central evidence of three eye witnesses namely Anil (PW.7), Bhawani Shanker (PW. 8) and Pritam Chand (PW.9). This evidence is sought to be corroborated by dying declaration of deceased Nathu Lal (Ex.P. 17) and Ex.P. 18) and the testimony of Vasudev (PW.25) who investigated the case and recovered the weapons of the offence at the instance of the accused.
4. Deceased Govind as per post mortem report (Ex. P.22) sustained following antemortem injuries-
(i) Stab wound 1cm. x 1/2 cm. on upper right chest.
(ii) Abrasion 3 cm. x 1/2 cm.-6 cm. below injury No. 1 on right side of chest.
(iii) Abrasion 2cm. x 1cm. left elbow
(iv) Abrasion 4.5cm. x 1/4 cm. right arm.
(v) Slab wound 2cm. x 1/2cm. on right shoulder.
(vi) Stab wound 1.5cm. x 1/2 cm. x 1cm. on the right scapular region.
(vii) Stab wound 1 cm. x 3/4cm. leading inside the thoracic cavity (left side)
(viii) Stab wound 1 cm. x 1/2cm. x 3/4 cm. obliquely placed on back.
Injuries No. 1 and 7 were instantaneously dangerous to fife and sufficient to cause death in the ordinary course of life.
5. Injuries sustained by Nathu Lal were examined on June 6, 1994 vide injury report Ex. P. 15, according to which two injuries were found on his person. Injury No. 1 was lacerated wound 4 cm. x 3/4 cm. x 3/4 cm. bone deep obliquely vertical on left frontol region of scalp and injury No. 2 was stab wound 1cm. x 1/2 cm. leading inside the abdominal cavity. It was stated in the injury report that injured was fit to give oral statement. Nathu Lal died on June 7, 1994. As per his autopsy report (Ex. P. 20) antemortem stab wound on the left side of abdominal was found dangerous to life and sufficient to cause death in ordinary course of life.
6. Bhawani Shanker (PW.8) received following injuries as per his injury report (Ex.P.12)-
(i) Stab wound 1 cm. x 1/2 cm. x 1 cm. vertically on anterior surface of left chest 2 cm. below left nipple.
(ii) Incised wound 1/2cm. x 1-1/3 cm. x 1/3 cm. vertically on right back scapular region.
(iii) Linear abrasion 5cm. x 1/4 cm. on right side of chest.
(iv) Bruise 3cm. x 3/4cm. on left back.
(v) Lacerated wound 3cm. x 1/2 cm. x 1/4 cm. on right palmier surface.
7. Anil Sharma (PW. 7) sustained one stab wound 1cm. x 1/2 cm. x 1 cm. over left lateral surface of chest. Vide injury report (Ex. P.11).
8. A look at the impugned judgment of the learned trial court goes to show that it has not placed any reliance on the testimony of Pritam Chand (PW. 9) and his evidence was rejected in toto. We have also critically analyse the statement of Pritam Chand and we find that his presence at the time of incident could not be established by the prosecution beyond reasonable doubt. This witness was not named in the FIR and his testimony has been shattered in the cross examination.
9. That takes us to the testimony of Anil Sharma (PW.7) and Bhawani Shanker (PW.8) who according to prosecution received injuries while making attempt to save deceased Govind Prasad. Mr. S.R. Bajwa learned senior counsel canvassed that so called Parcha Bayan (Ex.P. 10) of Anil Sharma, being post investigative document, is hit by Section 162 Cr.P.C. and it cannot be treated as FIR of the occurrence. Parcha Bayan was recorded at 11.15 a.m. much after the commencement of investigation. Dr. Preetam Chand (PW. 11) had examined Nathu Lal at 10.35 a.m. and Vasudev Singh, I.O. (PW.25) in his deposition stated that he got the injured Anil Sharma, Nathu Lal and Bhawani Shanker medically examined in the course of investigation. In his cross examination he deposed that he entered the telephonic message in the diary at 10.30 a.m. that three persons who had received injuries in a quarrel were admitted in Hospital and one another person had died. He proceeded to Hospital and paid first attention to injured Nathu Lal whose condition was very serious. Bhawani Shanker (PW.8) also stated that the I.O. on coming to hospital first rushed to Nathu Lal and made inquiry from him. Anil Sharma (PW.7) also deposed that police when reached to the hospital had first talk with Nathu Lal. Learned counsel Mr. Bajwa further contended that Kishan Singh, the scribe of Parcha Bayan (Ex.P. 10) was not examined by the prosecution. The FIR was sent to Ilaqe Magistrate next day of the incident whereas distance between the Police Station and the Court was very short. All this goes to show that after due deliberations false case was concocted against the appellants.
10. Mr. Bajwa learned Senior Counsel next urged that witness Anil Sharma (PW. 7) and Bhawani Shanker (PW. 8) did not receive the injuries in the incident occurred with the deceased Govind Prasad and Nathu Lal. Duration of injuries sustained by them does not match with the duration of the injuries received by the deceased. Learned counsel on the basis of contradictions of their previous statements made an attempt to impair the credit of these witnesses. Drawing our attention to the cross examination of both these witnesses, learned counsel contended that they had not seen appellants Prem Shanker and Yogesh Inflicting injuries on the person of Govind Prasad as both these witnesses admitted that after Govind Prasad fell down they turned their attention towards him. Both the witnesses indulged in making deliberate lies. They were found false qua the charges under Sections 149 and 449 !PC and also qua the incident with deceased Nathu Lal. Substratum of prosecution case has been knocked out. Nathu Lal did not make any reference of 'Gupti' in his statement (Ex.P.17). Recoveries of weapons were fake and planted. Third degree methods were used by the police and the appellants were severally beaten for the purpose of extracting information. Weapons were not found stained with blood. Gupti was allegedly recovered from the safe custody (Almirah). Gupties were never produced or shown to Dr. Preetam in the court. The incident does not get corroboration from the site plan as no blood was found on the place of occurrence. The evidence of prosecution according to learned counsel consists of only chaff and the question of separating chaff from the grain would not arise. Reliance is placed on various authorities that shall be considered in the later part of the judgment,
11. Per contra Mr. Rajendra Yadav learned P.P. supported the conviction of Prem Shanker and Yogesh and canvassed that acquittal of other four accused was not justified and the prosecution had established the charges against them.
12. On a close scrutiny of material on record we find mat in the Parcha Bayan (Ex. P.10) Anil Sharma (PW.7) attributed injuries on the back and on the right side of chest of deceased Govind respectively to Prem Shanker and Yogesh. The injuries were allegedly caused with Gupties. Shatrughan is alleged to have inflicted injury with knife to Govind. Shatrughan also caused injuries to Anil and Bhawani Shanker and Yogesh gave Gupti blow on the stomach of deceased Nathu Lal. In his deposition before the trial court Anil Sharma almost repeated the version narrated in the Parcha Bayan with slight improvement. In the Parcha Bayan it was not stated that at which part of the body of Govind, the injury was caused by Shatrughan whereas in the statement before the trial court Shatrughan is alleged to have caused injury by knife on the right side of chest of Govind Prasad. Bhawani Shanker (PW. 8) also stated that Prem Shanker, Yogesh and Shatrughan inflicted injuries to Govind. Shatrughan caused injuries with knife to Anil Sharma and him (Bhawani Shanker). Witness Anil Sharma and Bhawani Shanker were subjected to searching cross examination and the defence was successful in extricating this fact in the cross examination that the witnesses turned their attention towards Govind only when he fell down. There are other discrepancies also in the testimony of these witnesses but they are not so incompatible with the credibility of their version and we find unable ourselves in jettisoning their evidence on that count. We have closely scanned their testimony from the point of view of trustworthiness and we find that they were very much present at the time of incident and received serious injuries in the course of the incident. It is fallacious to suggest that as duration of injuries did not match, the presence of these witnesses at the time of incident becomes doubtful. It is established on record that Govind, Nathulal, Anil Sharma and Bhawani Shanker were simultaneously taken at the Hospital and Nathulal Anil Sharma and Bhawani Shanker were admitted in the same ward. If there is a difference in time of their medical examination it hardly makes any difference.
13. "When an eye witness is examined, observed the Hon'ble Supreme court in Ramni v. State of M.P. (1), at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can necessarily make his testimony totally non discrepant. But court should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is unrealistic approach for judicial scrutiny."
The ocular testimony of Anil Sharma (PW.7) and Bhawani Shanker (PW. 8) finds support from the corresponding injuries on their person. Anil Sharma sustained one stab wound over left lateral surface of chest, so also Bhawani Shanker received as many as five injuries including stab wound and incised wound over chest and back scapular reason. If any independent witness is not associated, it does not render the testimony of Anil Sharma and Bhawani Shanker unreliable. We find their testimony honest and true and we do not feel inclined to disbelieve their evidence on mere variations falling in the narration of occurrence. In Surjit Singh v. State of Punjab (2), it was held that nephew of the deceased who had suffered grievous injuries in the occurrence was a natural and stamped witness. In Sardul Singh v. State of Punjab (3), it was indicated that the presence of witness who received injuries during course of incident, can not be doubted. Where there are number of injuries on the deceased and the witnesses have given some details about the manner in which they were inflicted each witness cannot be expected to note the details in seriatem. Bankya v. State of Maharashtra (4), was the case wherein Hon'ble Supreme Court observed that presence of the injured witnesses at the scene of occurrence cannot be doubted and being victim themselves they would not leave out real assailants and substitute them with innocent persons.
14. Their Lordships of the Supreme Court in Baboo Lal v. State of U.P. (5), Shiv Nath Singh v. State of U.P. (6), and Ram Swaroop v. State of U.P. (7), propounded that failure of Investigating Officer to collect blood stains or notice blood at the spot by itself is not an infirmity. It is not proper to conclude that the incident did not happen at that spot at all when testimony of eye witnesses showing that the incident had occurred at that place. We thus find no force in the argument of learned counsel that the incident had not occurred at the place shown by the Investigating officer.
15. We are also not impressed by the submissions of Mr. Bajwa, learned Senior Counsel that Parcha Bayan (Ex.P.10) of Anil Sharma, cannot be treated as FIR being post investigative document and it is hit by Section 162 Cr.P.C. Assertion of Vasudev Singh I.O. (PW.25) that he got the injuries of Anil Sharma, Nathu Lal and Bhawani Shanker medically examined during the investigation and that after entering the telephonic message in the diary at 10.30 a.m. rushed to the hospital and approached Nathu Lal at the outset, does not support this argument that investigation had already commenced. Only injuries sustained by Nathu Lal were examined by the doctor at 10.35 a.m. and if Parcha Byan (Ex.P.10) was recorded at 11.15 a.m., it does not mean that after examination of Nathu Lal, Parcha Bayan became a post investigative document. The FIR was sent to Ilaqa Magistrate next day of the incident and this fact does not go to show that after due deliberations false case was concocted against the accused. This may only be treated as a lapse on the part of the Investigating officer. Their Lordships of the Supreme Court in Paras Yadav v. State of Bihar (8), indicated that the Japses on the part of the investigating officer should not be taken in favour of the accused. The prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not.
16. Coming to the evidence of dying declaration of the deceased Nathu Lal it may be noticed that he belonged to village Jahangirpur and came to meet his nephew Govind (deceased). According to his statement (Ex.P.17) given to the Magistrate on June 6, 1994 at 1.15 p.m. he wanted to go back to Jahangirpur by Katta (a small train) that was to leave Sawai Madhopur around 10 a.m. but incident had occurred at about 9.30 a.m. He was the stranger at Sawai Madhopur and acquainted with few persons. On being asked as to who killed Govind, Nathu Lal replied that he did not know as he was outsider. He also stated that no body had enmity with him and he sustained injury when he made attempt to save Govind. He attributed his injury to one Laxman but in his statement (Ex.P.18) recorded by I.O. at 2 p.m. he corrected his mistake and deposed that it was Shatrughan, who inflicted knife blow on his stomach, name of Laxman was wrongly stated by him to the Magistrate. Learned trial judge granted benefit of doubt to accused Shatrughan on the ground that as per the dying declaration (Ex.P.17) Laxman was the author of injury caused to Nathu Lat and possibility of false implication of Shatrughan could not be ruled out. Learned trial judge disbelieved the testimony of Anil Sharma (PW.7) and Bhawani Shanker (PW.8) qua Shatrughan and held that Shatrughan was falsely implicated by the interested witnesses as he was the real brother of Prem Shanker and Yogesh.
17. We find ourselves unable to agree with this finding of the learned trial judge that evidence of Anil Sharma and Bhawani Shanker qua accused Shatrughan is untrustworthy. As already noticed, Anil Sharma and Bhawani Shanker categorically deposed that Shatrughan shared common object with Prem Shanker and Yogesh and came to the place of incident armed with knife and caused serious injuries to Anil Sharma, Bhawani Shankar and Govind. Even after searching cross examination testimony of Anil Sharma and Bhawani Shanker could not be shattered. Their testimony finds support from their injury reports according to which Anil Sharma received one stab wound over left lateral surface of chest and Bhawani Shanker sustained stab wound and incised wound on his chest and back scapular region. Their testimony cannot be disbelieved on the ground that deceased Nathu Lal who was an out sider, did not name Shatrughan in the dying declaration particularly when the deceased Nathu Lal stated that he did not know the assailants of Govind as he was an outsider. Learned trial judge ought not have given too much importance to the dying declaration of Nathu Lal, who was totally stranger to the assailants. It was not a realistic approach on the part of the learned trial judge to give benefit of doubt to Shatrughan on the basis of dying declaration of Nathu Lal, who was an outsider.
18. Conduct of Prem Shanker, Yogesh and Shatrughan as unfolded during the course of incident demonstrates that all the three had common intention which animated them to commit a criminal act in furtherance of such intention. From the evidence it is established that there was a premeditated concert to kill Govind. Prem Shankar pulled Govind out of the shop and he and Yogesh gave Gupti blows on his person. Shatrughan also inflicted knife blow and when Anil Sharma, Bhawani Shankar and Nathu Lal made attempt to intervene they were also attached.
19. In so far charges levelled against accused Sita Ram, Prahlad and Arun Kumar are concerned, the prosecution could not establish their participation in the offence beyond reasonable doubt and they were rightly acquitted from all the charges.
20. Ratio indicated in Baikuntha Nath Chaudhary v. State of Orissa (9), Ugar Ahir v. State of Bihar (10), Prem Singh v. State of Punjab (11), Karnail Singh v. State of Punjab (12) and Kanbi Nanji Virji v. State of Gujrat (13), is not applicable to the facts of the instant case.
21. In Mohd. Iqbal M. Shaikh v. State of Maharashtra (14), it was propounded by their Lordships of the Supreme Court in para 19 that-
"We are quite aware of the principle that in a country like India where it is difficult to find witness who has not made any embellishment or exaggeration and therefore, in such case court would be justified in separating the chaff from the grain and then act upon the grain. But where the evidence consists of only chaff, as in the present case, question of separating chaff from the grain would not arise. Then again when all the eye witnesses suffer from the same infirmities as has been discussed by us, question of one corroborating the other would not arise. If a witness is partly reliable and partly unreliable then one may look for corroboration to the reliable part of the ocular version of a witness. But if a witness is wholly unreliable as has been assessed by us, the question of corroboration does not arise."
In the case on hand as already assessed by us, Anil Sharma (PW.7) and Bhawani Shanker (PW.8) are wholly reliable witnesses and the prosecution evidence conclusively-established that Prem Shanker, Yogesh and Shatrughan were the perpetrators of the crime. We find the recovery of weapons used in commission of offence, at the instance of Prem Shanker, Yogesh and Shatrughan, established from the material on record.
22. In so far as injury caused on the stomach of Anil Sharma by Shatrughan is concerned, the learned trial judge disbelieved the testimony of Anil Sharma on the ground of contradiction in the statement of Bhawani Shankar and Anil Sharma. Shatrughan inflicted knife blow on the left side of his stomach whereas Bhawani Shanker deposed that injury on the left side of stomach of Anil Sharma was caused by Shatrughan with Gupti. We find this approach of the learned trial judge as not based on proper scrutiny of record. In the beginning of his examination in chief Bhawani Shankar specifically stated that Shatrughan was armed with knife and if in a later part of statement he by mistake had used the word 'Gupti' in place of 'knife' it will not be treated so incompatible with the credibility of his version so as to reject his evidence qua the injury caused to Anil Sharma. We are unable to uphold the acquittal of Shatrughan and hold the acquittal of Shatrughan and hold him guilty, under Sections 302/34 and 324 IPC.
23. For the reasons aforementioned we see no merit in Criminal Appeal No. 491/1996 preferred by the Appellants Prem Shankar and Yogesh and it accordingly stands dismissed. The conviction and sentence awarded to them by the learned trial judge shall stand confirmed. Criminal Appeal No. 324/1997 filed by the Stale of Rajasthan is allowed in part. While setting aside the impugned judgment of acquittal of accused Shatrughan we convict and sentence him as under-
U/s. 302/34 IPC to suffer imprisonment for life and fine of Rs. 500/- in default to further undergo three months simple imprisonment.
U/s. 324 IPC to suffer one year rigorous imprisonment and fine of Rs.100/- in default to further suffer one month simple imprisonment.
The sentences are to run concurrently and the period already spent in custody shall be deducted. Accused Shatrughan is on bail, he shall surrender to serve out the sentence. Warrants of arrest shall be issued against him to take him in custody forthwith.
The appeal of the State of Rajasthan qua the accused Sita Ram, Prahlad and Arun Kumar is dismissed.