Madhya Pradesh High Court
Khuman Singh vs State Of M.P. on 2 February, 2018
Author: G. S. Ahluwalia
Bench: G. S. Ahluwalia
1 CrA. 799/2006
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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DB:- Hon'ble Shri Justice Vivek Agarwal,
Hon'ble Shri Justice G. S. Ahluwalia, J.J.
Cr.A.799/2006
Khuman Singh
Vs.
State of MP
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Shri A. K. Jain, counsel for the appellant.
Shri R.V.S. Ghuraiya, Public Prosecutor for the respondent/
State.
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JUDGMENT
(Delivered on 2/2/2018) Per G.S. Ahluwalia, J:-
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 11-9- 2006 passed by Special Judge [S.C.&S.T. (Prevention of Atrocities Act)], Shivpuri in Special Sessions Trial No.108/2005, by which the appellant has been convicted under Section 302 of I.P.C. and under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and has been sentenced to undergo the Life Imprisonment for offence under Section 302 of I.P.C. and Life Imprisonment and fine of Rs.1000/- with default imprisonment for offence under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (2) The necessary facts for the disposal of the present appeal in short are that Rajaram (P.W.1), lodged a Dehati Nalishi on 14-8-2005 at about 14:20, alleging that in the morning, he along with his brother Raghuvir, Vir Singh and a relative Badam had gone to cultivate the fields and for grazing of their cattle. Vir Singh was cultivating the field, whereas they were grazing their cattle. At about 11 P.M., the appellant came to the field of the deceased Vir Singh and left his buffaloes for grazing. The deceased Vir Singh objected to it, and drove the buffaloes of the appellant, out of his fields. The 2 CrA. 799/2006 appellant became furious and started abusing and scolded that how the appellant, who belongs to Khangar Caste, could drive the buffaloes of Thakurs out of his field. When the deceased objected to it, then the appellant, with an intention to kill the deceased, assaulted him by means of an axe as a result of which, the deceased Vir Singh, fell down. Thereafter, the appellant gave another 2-3 axe blows on the head of the deceased. The complainant, his brother and relatives ran towards the place of incident. The appellant, thereafter, ran away. The complainant and other witnesses, found that the deceased Vir Singh had already expired. The appellant had assaulted the deceased Vir Singh, knowingfull well, that he belongs to Khangar Caste. The dead body is lying in the field. On this complaint, R.C. Bhoj (P.W.4) recorded the Dehati Nalishi, and informed the S.D.O. (P) about the incident. Mohinder Kanwar (P.W.9) reached on the spot. The F.I.R. was registered. The police after completing the investigation, filed the charge sheet against the appellant for offence under Section 302 of I.P.C. and under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (3) The Trial Court, framed the charges under Sections 302 of I.P.C. and under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (4) The appellant abjured his guilt and pleaded not guilty. (5) The prosecution, examined Rajaram (P.W.1), Raghuveer (P.W.2), Hari Singh (P.W.3), R.C.Bhoj (P.W.4), Dr. Pradeep Sharma (P.W.5), Megh Singh (P.W.6), Badam Singh (P.W.7), Sitaram Bairagi (P.W.8) and Mohinder Kanwar (P.W.9). The appellant examined Omkar Singh Thakur (D.W.1) in his favour.
(6) The Trial Court after hearing both the parties, convicted the appellant under Section 302 of I.P.C. as well as under
Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced to undergo the Life Imprisonment for offence under Section 302 of I.P.C. and 3 CrA. 799/2006 Life Imprisonment and fine of Rs.1000/- with default imprisonment for offence under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (7) Challenging the conviction and sentence passed by the Court below, it is submitted by the Counsel for the appellant, that the statements of the witnesses under Section 161 of Cr.P.C. were recorded belatedly, the copy of the F.I.R. was sent to the Magistrate after one day, the incident took place all of a sudden and, therefore, the offence would be under Section 304 Part I of I.P.C., and the Court below failed to see that the offence was not committed, because of the fact that the deceased belonged to Scheduled Caste, therefore, his conviction under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is bad in law. (8) Per contra, it is submitted by the Counsel for the State, that in fact the offence was committed, only because of the fact that the deceased was a member of Scheduled Caste and secondly, every delay in recording of case diary statement, by itself would not be sufficient to discard the direct evidence. It is further submitted that the manner in which the offence was committed, it is clear that the appellant had caused the injuries, with knowledge and intention to kill the deceased. (9) Heard the learned Counsel for the parties. (10) The First question for determination is that whether the death of Vir Singh was homicidal in nature or not? (11) Dr. Pradeep Sharma (P.W.5) had conducted the postmortem of the body of deceased Vir Singh. He had found the following injuries on the dead body of deceased Vir Singh:-
''1. Incised Wound over right side parieto- occipital region of skull. Size 5x1xdeep up-to bone.
2. Incised Wound 4 1/2x1cmxdeep up-to bone present over right occipital region.
3. Incised Wound present over the occipital region of skull clotted with blood 5x1 1/2xdeep upto bone
4. Lacerated wound 2 1/2x1xdeep upto bone 4 CrA. 799/2006 present over centre of parietal region.
5. Incised wound over right ear 5x1xdeep upto muscles, right ear pinna cut through and through.
6. Incised wound 3x1/2xdeep upto bone over right eye brow, clotted with blood present.'' The cause of death was shock due to excessive external and internal bleeding. The postmortem report is Ex. P.10. (12) This witness was cross examined. He clarified that injuries no.1,2 and 3 were caused from behind, however, this witness was not in a position to say that which injury was caused first. However, it was clarified that the death was due to cumulative effect of all the injuries which were sufficient in its natural course to cause death. Nothing could be elicited from the cross-examination of this witness, which may make his evidence unreliable.
(13) Thus, it is clear that the death of the deceased Vir Singh was homicidal in nature.
(14) The next moot question for determination is that who is the author of the injuries, sustained by the deceased? (15) Rajaram(P.W.1),Raghuvir (P.W.2) and Hari Singh (P.W.3) are the three eye-witnesses. Rajaram (P.W.1) is the first informant. It is submitted by all these three witnesses that at about 11 A.M., these witnesses, along with deceased Vir Singh and their relative Badam had gone to their fields, where all the brothers have their separate but adjoining fields. At the time of the incident, the deceased Vir Singh was cultivating the field, whereas these witnesses were grazing their cattle. At that time, the appellant Khuman Singh, came there along with his buffaloes and left them in the field of the deceased Vir Singh. When Vir Singh objected to it, then the appellant started abusing him and scolded that the deceased belongs to Khangar Caste and how he could dare to object to grazing of cattle of Thakurs. When the deceased requested the appellant, not to abuse him, then the appellant gave an axe blow on the head of Vir Singh, therefore, he fell down. Thereafter, the 5 CrA. 799/2006 appellant gave other 2-3 blows by axe on the head of the deceased Vir Singh. These witnesses ran towards the place of incident. Thereafter, the appellant ran away. Vir Singh had died by that time. Thereafter, when Rajaram (P.W.1) was going to Police Station Karera, on his way, he met with the S.H.O., Police Karera, where he lodged the report Ex.P.1, and his signatures are at ''A to A''. Thereafter, the police personnel came on the spot. Notice Ex. P.2 was given and Panchnama of the dead body Ex.P.3 was prepared. The spot map Ex.P.4 was prepared. The bloodstained and plain earth were seized vide seizure memo Ex.P.5. These witnesses were cross examined in detail. Challenging the presence of Hari Singh (P.W.3) on the spot, it is submitted that in fact on the date of incident, Hari Singh (P.W.3) was not present, as he was on duty in his school. The appellant has filed a copy of the attendance register of the month of September 2005, Ex.D.3, to show that Hari Singh (P.W.3) was present in the school.The incident took place on 14-8-2005 and the attendance register of 14-8- 2005 or of the month of August 2005 has not been produced. By producing the attendance register of the month of September 2005, the appellant wants to establish that Hari Singh (P.W.3) was present in the school and was not present on the spot, however, the same cannot be accepted for the simple reason that since, the incident took place on 14-8- 2005, therefore, the attendance register of the month of September 2005 is immaterial. The appellant should have filed the school attendance register of the month of August 2005, which has not been done. Thus, the submission made by the Counsel for the appellant, that Hari Singh was not present on the spot cannot be accepted, and hence, it is rejected. In the present case, the eye-witnesses, namely, Rajaram (P.W.1), Raghuvir (P.W.2) and Hari Singh (P.W.3) are related witnesses, therefore, it is submitted by the Counsel for the appellant, that their evidence should be discarded in absence of any independent witness. The submission made by the Counsel for 6 CrA. 799/2006 the appellant, cannot be accepted and hence, it is rejected. The evidence of a witness, cannot be rejected merely on the ground that he happens to be a related witness. (16) The Supreme Court in the case of Takhatji Hiraji Vs. Thakore Kubersing Chamansingh reported in (2001) 6 SCC 145 has held as under :-
''19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.......'' The Supreme Court in the case of Vijendra Singh Vs. State of U.P. Reported in (2017) 11 SCC 129 has held as under :-
''37. In Dahari Vs. State of U.P. [2012)10 SCC 256], while discussing about the non- examination of material witness, the Court expressed the view that when he was not the 7 CrA. 799/2006 only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Similar view has been expressed in Manjit Singh [(2013) 12 SCC 746], and Joginder Singh Vs. State of Haryana [(2014) 11 SCC 335].'' The Supreme Court in the case of State of H.P. Vs. Gian Chand reported in (2001) 5 SCC 71 has held as under :-
''14........Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of facts and circumstances of each case so as to find whether the witnesses were available for being examined in the court and were yet withheld by the prosecution. The court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers from some infirmity or cannot be accepted in the absence of other evidence, which though available has been withheld from the court, then the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise. It is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on.'' In the case of Yogesh Singh Vs. Mahabeer Singh and others reported in (2017) 11 SCC 195, the Supreme Court has held as under :-
''51. Similarly, in Raghubir Singh Vs. State of U.P. [(1972) 3 SCC 79], it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered 8 CrA. 799/2006 necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant mulitplication of witnesses. In this connection, general reluntance of an average villager to appear as a witness and get himself ivolved in cases of rival village factions when tempers on both sides are running high has to be borne in mind. Further, in Appabhai Vs. State of Gujarat [1988 Supp SCC 241], this Court has observed :
52........ Experience reminds us that civilised people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere, whether in village life, towns or cities........'' (17) Thus, the important question would be that whether these "related witnesses" are merely "related witnesses" or they are "interested witnesses" also. It is also well settled principle of law that the evidence of a witness cannot be rejected or discarded merely because he is "related" or "interested witness". However, their testimony should be scrutinized very cautiously.
(18) The Supreme Court in the case of Raju v. State of T.N., reported in (2012) 12 SCC 701, has held as under :-
''21. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki [(1981) 2 SCC 752]. It was held that: (SCC p. 754, para 7)
"7. ... True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a 9 CrA. 799/2006 natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be 'interested'."
22. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh [AIR 1958 SC 500], the view that a "natural witness" or "the only possible eyewitness" cannot be an interested witness may not be, with respect, correct. In Basawan Singh [AIR 1958 SC 500], a trap witness (who would be a natural eyewitness) was considered an interested witness since he was "concerned in the success of the trap". The Constitution Bench held: (AIR p. 506, para 15) "15. ... The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person."
The Supreme Court in the case of Jalpat Rai v. State of Haryana, reported in (2011) 14 SCC 208 has held as under:-
''42. There cannot be a rule of universal application that if the eyewitnesses to the incident are interested in the prosecution case and/or are disposed inimically towards the accused persons, there should be corroboration of their evidence. The evidence of eyewitnesses, irrespective of their interestedness, kinship, standing or enmity with the accused, if found credible and of such a calibre as to be regarded as wholly reliable could be sufficient and enough to bring home the guilt of the accused. But it is a reality of life, albeit unfortunate and sad, that human failing tends to exaggerate, over implicate and distort the true version against the person(s) with whom there is rivalry, hostility and enmity. Cases are not unknown where an entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime.
43. In the circumstances of the present case, to 10 CrA. 799/2006 obviate any chance of false implication due to enmity of the complainant party with the accused party and the interestedness of PW 1, PW 4 and PW 8 in the prosecution case, it is prudent to look for corroboration of their evidence by medical/ballistic evidence and seek adequate assurance from the collateral and surrounding circumstances before acting on their testimony. The lack of corroboration from medical and ballistic evidence and the circumstances brought out on record may ultimately persuade that in fact their evidence cannot be safely acted upon.
44. Besides PW 1, PW 4 and PW 8, who are closely related to the three deceased, no other independent witness has been examined although the incident occurred in a busy market area. The place of occurrence was visited by PW 20 in the same night after the incident. He found three two-wheelers one bearing No. HR 31 A 5071, the second bearing No. RJ 13 M 7744 and the third without number lying there. One Maruti car bearing No. HR 20 D 8840 with broken glass was also parked there. The owners of these vehicles have not been examined. At the place of occurrence, one HMT Quartz wristwatch with black strap, one belcha and four pairs of chappals were also found. There is no explanation at all by the prosecution with regard to these articles. Nothing has come on record whether four pairs of chappals belonged to the accused party or the complainant party or some other persons. Whether the HMT Quartz wristwatch that was found at the site was worn by one of the accused or one of the members of the complainant party or somebody else is not known. Then, the mystery remains about the belcha that was found at the site. These circumstances instead of lending any corroboration to the evidence of those three key witnesses, rather suggest that they have not come out with the true and complete disclosure of the incident.'' The Supreme Court in the case of Rohtash Kumar v.
State of Haryana, reported in (2013) 14 SCC 434, has held as under :-
''35. The term witness, means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in the court, or otherwise. In Pradeep Narayan Madgaonkar v. State of Maharashtra [(1995) 4 SCC 255] this Court examined the 11 CrA. 799/2006 issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Court therein held that the same must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belonged to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars, should be sought. (See also Paras Ram v. State of Haryana [(1992) 4 SCC 662], Balbir Singh v. State [(1996) 11 SCC 139], Kalpnath Rai v. State [(1997) 8 SCC 732], M. Prabhulal v. Directorate of Revenue Intelligence [(2003) 8 SCC 449 ] and Ravindran v. Supt. of Customs [(2007) 6 SCC 410].) Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon.'' The Supreme Court in the case of State of Rajasthan Vs. Chandgi Ram reported in (2014) 14 SCC 596 has held as under :-
17. It was contended that all the witnesses were family members of the deceased and being interested witnesses, their version cannot be relied upon in toto. When we consider the same, we fail to understand as to why the evidence of the witnesses should be discarded solely on the ground that the said witnesses are related to the deceased. It is well settled that the credibility of a witness and his/her version should be tested based on his/her testimony vis-à-vis the occurrence with reference to which the testimonies are deposed before the court. As the evidence is tendered invariably before the court, the court will be in the position to assess the truthfulness or otherwise of the witness while deposing about the evidence and the persons on whom any such evidence is tendered. As every witness is bound to face the cross-examination by the defence side, the falsity, if any, deposed by the witness can be easily exposed in that process. The trial court will be able to assess the quality of witnesses irrespective of the fact whether the witness is related or not. Pithily 12 CrA. 799/2006 stated, if the version of the witness is credible, reliable, trustworthy, admissible and the veracity of the statement does not give scope to any doubt, there is no reason to reject the testimony of the said witness, simply because the witness is related to the deceased or any of the parties.
In this context, reference can be made to the decision of this Court in Mano Dutt v. State of U.P. [(2012) 4 SCC 79] Para 24 is relevant which reads as under: (SCC p. 88) "24. Another contention raised on behalf of the appellant-accused is that only family members of the deceased were examined as witnesses and they being interested witnesses cannot be relied upon.
Furthermore, the prosecution did not examine any independent witnesses and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured.
Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party."
(emphasis added)
18. Reliance can also be placed upon Dinesh Kumar v. State of Rajasthan [(2008)8 SCC 270], wherein in para 12, the law has been succinctly laid down as under: (SCC p. 273) "12. In law, testimony of an injured witness is given importance. When the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The court would be required to analyse the 13 CrA. 799/2006 evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the basis of such evidence.
(emphasis supplied) The Supreme Court in the case of Nagappan Vs. State reported in (2013) 15 SCC 252 has held as under :-
''10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. (Vide Dalip Singh v. State of Punjab [ AIR 1953 SC 364], Guli Chand v. State of Rajasthan [(1974) 3 SCC 698], Vadivelu Thevar v. State of Madras[AIR 1957 SC 614], Masalti v. State of U.P. [AIR 1965 SC 202], State of Punjab v. Jagir Singh [(1974) 3 SCC 277], Lehna v. State of Haryana [(2002) 3 SCC 76], Sucha Singh v. State of Punjab[(2003) 7 SCC 643], Israr v. State of U.P. [(2005) 9 SCC 616], S. Sudershan Reddy v. State of A.P. [(2006) 10 SCC 163], Abdul Rashid Abdul Rahiman Patel v. State of Maharashtra [2007) 9 SCC 1], Waman v. State of Maharashtra [(2011) 7 SCC 295], State of Haryana v. Shakuntla [(2012) 5 SCC 171], Raju v. State of T.N. [(2012) 12 SCC 701] and Subal Ghorai v. State of W.B. [(2013) 4 SCC 607])'' (19) Thus, it is clear that the evidence of Rajaram (P.W.1) Raghuvir (P.W.2) and Hari Singh (P.W.3) cannot be discarded merely because of their relationship with the deceased. If the 14 CrA. 799/2006 evidence of these witnesses is considered in the light of the Dehati Nalishi Ex.P.1, which was lodged by Rajaram (P.W.1) as well as the medical evidence, it is clear that Rajaram (P.W.1), Raghuvir (P.W.2) and Hari Singh (P.W.3) are the reliable witnesses. Further, there is no reason for these witnesses to spare the real culprit and to falsely implicate the appellant.
(20) It is next contended by the Counsel for the appellant that the case diary statements of the eye-witnesses were recorded on 25-8-2005 i.e., 11 days after the incident and therefore, their evidence should be discarded on this ground only, as they had sufficient opportunity for deliberation and false implication of the appellant. The submission made by the Counsel for the appellant is misconceived and is liable to be rejected. It is well established principle of law that mere delay in recording the statements of the witnesses under Section 161 of Cr.P.C., by itself is not fatal, provided the prosecution has offered plausible explanation. (21) The Supreme Court in the case of Banti Vs. State of M.P. reported in (2004) 1 SCC 414 has held as under :-
''17. As regards the delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion (See Ranbir v. State of Punjab [(1973) 2 SCC 444] and Bodhraj v. State of J&K [(2002) 8 SCC 45]).'' (22) If the facts of the present case are considered, then Mohinder Kanwar (P.W.9) has specifically stated in para 9 of his evidence that since there was a communal tension in the locality, therefore, he could not record the statements of the witnesses at the earliest. In the present case, the allegations 15 CrA. 799/2006 are that the appellant, who is a Thakur by caste, had left his cattle in the field of the deceased, who is Khangar (S.C.) by caste and when it was objected by the deceased, then he was scolded by the appellant, by saying that how, a member of Khangar Caste could dare to drive the cattle of a Thakur from the field and thereafter, he was assaulted mercilessly by causing 6 injuries on the head. As the incident took place, only because a person of lower caste had objected to leaving of the cattle in his field by a member of a higher caste, therefore, the explanation given by the Investigating officer, that because of communal disturbance, he could not record the case diary of the statements, at the earliest, appears to be plausible. Further, the Dehati Nalishi, Ex. P.1 was lodged by Rajaram (P.W.1) who is an eye-witness. Thus, under the facts and circumstances of the case, specially in the light of the explanation given by Mohinder Kanwar (P.W.9), it cannot be said that the delay in recording the statements of the eye-
witnesses under Section 161 of Cr.P.C. is fatal to the prosecution story.
(23) It is next contended by the Counsel for the appellant, that the F.I.R. was lodged on 14-8-2005 and the copy of the F.I.R. was sent on 16-8-2005, therefore, the F.I.R. appears to be ante-timed and ante-dated. Further, it is submitted that there is nothing on record to show that the copy of the F.I.R. was received by the concerned Magistrate. The submissions made by the Counsel for the appellant, is misconceived and hence, liable to be rejected.
(24) If the facts of the case are considered, then it would be clear that the incident took place on 14-8-2005, whereas the copy of the F.I.R. was sent to the concerning Magistrate on 16-8-2005, Ex.P.14. The Receipt Dak Book contains the receipt of the copy of the F.I.R. On 16-8-2005. It is a matter of common knowledge that 15th of August is the Independence Day which is celebrated in the entire country. Thus, if the copy of the F.I.R. was sent to the concerning 16 CrA. 799/2006 Magistrate, on the next working day, then it cannot be said that the F.I.R. lodged on 14th August 2005 was an ante-dated and ante-timed. Furthermore, the prompt recording of F.I.R. clearly rules out the possibility of deliberations on the part of the witnesses. Thus, the delayed recording of case diary statements on 25-8-2005 cannot be said to be fatal to the prosecution case. Further, a delay of 1 day in sending the copy of the F.I.R. to the Magistrate as required under Section 157 of Cr.P.C. cannot be said to be fatal to the prosecution case.
(25) The Supreme Court in the case of Ravi Kumar Vs. State of Punjab reported in (2005) 9 SCC 315 has held as under :-
''16. Sending the copy of the special report to the Magistrate as required under Section 157 CrPC is the only external check on the working of the police agency, imposed by law which is required to be strictly followed.
The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not.'' (26) It is next contended by the Counsel for the appellant that the conviction of the appellant for offence under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable, as there is nothing to suggest that the offence was committed only because of the 17 CrA. 799/2006 fact that the deceased was either a Scheduled Caste or Scheduled Tribe. The fact that the deceased belonged to Scheduled Caste has not been denied by the appellant. Further, the prosecution has relied upon the caste certificate of Rajaram (P.W.1) and Smt. Meera, as Ex.P.16 and Ex.P.17. Although no inference can be drawn from the Caste certificate of the brother and other relatives of the deceased, but since, the fact that the deceased belonged to Khangar Caste which is a Scheduled Caste, has not been disputed by the appellant. Further, in the Dehati Nalishi Ex.P.1, itself, it is mentioned that when the deceased Vir Singh objected to the act of the appellant of leaving his cattle in the field of the deceased, the appellant got furious and scolded that as the deceased belongs to Khangar Caste, then how he could dare to drive the cattle of a person belonging to Thakur Caste, and therefore, he assaulted the deceased repeatedly on his head. Thus, if the facts and circumstances of the case are considered, then it is clear that the offence was committed only because of the fact that the appellant is Thakur belonging to a higher class, whereas the deceased was of Khangar Cast, which is a Scheduled Caste.
(27) It is further submitted by the Counsel for the appellant that since, the incident took place in a heat of passion, therefore, the act of the appellant would be an offence under Section 304 Part I of I.P.C. and he is in jail for the last near about 12 years. The submission made by the Counsel for the appellant cannot be accepted, as there is nothing to suggest that the deceased in any manner had provoked the appellant. In fact, it is the appellant who left his cattle in the field of the deceased and it was objected by the deceased, the appellant got furious and by challenging the deceased that as he is of Khangar Caste, then how he could dare to drive the cattle of a person belonging to Thakur Caste, and gave repeated blows by axe on the head of the deceased. As many as five incised wounds and one lacerated wound were found on the head 18 CrA. 799/2006 region of the deceased. Therefore, considering the totality of the facts and circumstances of the case, it is clear that the act of the appellant would squarely fall under Section 302 of I.P.C. Accordingly, the appellant is held guilty of committing offence under Section 302 of I.P.C.
(28) So far as the question of sentence is concerned, the appellant has been sentenced to undergo the Life Imprisonment for offence under Section 302 of I.P.C. and for offence under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The sentence does not call for any interference.
(29) Consequently, the judgment and sentence dated 11-9- 2006 passed by Special Judge [S.C.&S.T. (Prevention of Atrocities Act)], Shivpuri in Special Sessions Trial No.108/2005 is hereby affirmed.
(30) The appellant is in jail.
(31) The appeal fails and is hereby dismissed.
(Vivek Agarwal) (G.S. Ahluwalia)
Judge Judge
*MKB*
MAHENDRA KUMAR BARIK
2018.02.15 17:14:34 +05'30'