Rajasthan High Court - Jaipur
Bhopal Singh And Ors. vs State Of Rajasthan on 20 January, 1989
Equivalent citations: 1989WLN(UC)411
JUDGMENT G.K. Sharma, J.
. This revision petition is directed against the judgment dated 4th June '82., passed by the Sessions Judge, Pali, upholding the convictions and the sentences of the petitioners, awarded by the Judicial Magistrate, Pali, vide his judgment dated 11th July '78. Vide its judgment, the trial court has found accused Girdhari Singh guilty under Sections 148, 323, 325 & 452, IPC and sentence him on each count as mentioned in its judgment The other accused persons were found guilty under Sections 148, 323, 325/ 149 & 452 IPC, and each of them was sentenced on each count, as mentioned in the said judgment.
2. On 8th June, '68, a written report was submitted by one Visram, father of Chunilal, at P.S. Murdia, Signed by Chunilal, wherein, it was alleged that on 31st May, at 2-3 P.M. all the accused persons armed with gun, Farsi, axe and lathi, bad come to their house, abused Chunilal, with a common object entered into the house & gave him beating. Thereafter, Chunilal was taken the 'Chohatta' of the village, where, all these persons again had inflicted injuries on his body. Hearing a hue and cry, his father Visram, mother Mst. Kesi and other villagers arrived there. Moti uncle of Chunilal was present when the latter was beaten up by those persons. The condition of Chunilal was serious So, he was taken to Government Hospital, Pali, where he was admitted. Thereafter, be was taken to Jodhpur and was admitted Jodhpur Hospital, where Chunilal got his medical treatment.
3. On this report, the police registered a case under Sections 147, 148, 149, 323, 325, & 504, IPC. After completing usual investigation, the police admitted a challan against 11 persons.
4. The trial court framed charges against Girdhari Singh under Sections 148, 323, 504, 325 & 452, IPC and against other accused persons under Sections 148. 323, 504, 452 & 325/149, IPC. The accused persons pleaded not guilty and claimed trial. The contention of the accused persons was that some time prior to the alleged occurrence, a report was lodged against the complainant and others from the side of the accused persons under Section 307, IPC, and in that case, the present accused persons were witnesses against the complaint party, and so, on account of enmity, they have been falsely implicated in this case.
5. The trial court on the basis of the a statement of Chunilal injured, corroborated by that of Mst. Kesi, mother of Chunilal and Moti PW, 1 found that the case was made out against the accused persons, and so, it convicted and sentenced each of them, as mentioned above. That conviction and sentences were confirmed by the learned Sessions Judge.
6 The learned Counsel for the petitioners argued that the alleged incident had taken place on 31st May '68, at about 3 P.M. at village-Murdia, which was about 20 miles away from the police station. But, no report was lodged at the police station. Chunilal who was injured was taken to Government Hospital, Pali and was admitted there. But, no report was lodged there at the police station. Thereafter, Chunilal was brought to Jodhpur, and according to his statement, be come to Jodhpur on 5th/6tb Jure '68' and was admitted to Jodhpur Hospital. But, still, no report was lodged at the police station at Jodhpur even. One telegram was sent by the father of Chunilal, Visram, on 5th June '68, and that telegram is marked Ex. D.l. In that telegrams it has been mentioned, "Chunilal s/o Visram Bhat resident of Murdia severally beaten by axe and lathi blows. Admitted in hospital lying unconscious." This telegram was sent on 5th June, 68 to SHO, PS-Kerla, but in this telegram, the names of the persons who had inflicted injuries to Chunilal, were not mentioned, nor was the detail of the incident written. There after, on 8th June,' 68 a written report which was signed by Chunilal, was submitted by Visram, father of Chunilal, at PS-Kerla. In that report, a detail of the incident was given, mentioning the names of all the accused persons, and therein, the details of various weapons which were in the hands of the accused persons, were also given, Wherein, it was also mentioned as to which accused person inflicted which blow, while pointing out all these particulars, it was argued by the learned Counsel for the petitioners that there was a delay in lodging the report, and that, after due consultation and with deliberation, a case was made out, the story was concocted, and a detailed report implicating all the accused persons, was submitted at the police station. This report is Ex. P. 1; and in the "Karya Police," on further interrogation by the police, the father of Chunilal told that it was his mistake that he did not submit the report earlier. This was the only explanation for submitting the report with delay. This is no explanation for the delay. Chunilal was taken to Pali Hospital. A report could have been lodged there, or it could have been sent by post from Pali. When the telegram (Ex. D. 1) could be sent to SHO PS, Kerla. a written report could also have been sent. Then, when Chnnilal was brought to Jodhpur Hospital on 6th June, '68, a report of the incident could have been submitted at Jodhpur itself or it could have been sent by post from Jodhpur. Why for two days, they kept silent and on 8th June, 1968 only., written report was submitted. This shows that the correct fact was suppressed, and after due consultation and deliberation, a written to report was prepared, in which, all the accused persons were implicated, having been assigned individual part taken by them at the time of the incident. So, the explanation. The non explanation of the delay in lodging the FIR, indicates that either the report is an untrue one, or that they have concocted the story and submitted the report. Thus, doubt is creaked, which says that either the report is a false one or that the witnesses who have stated in the court, have given a false statements.
7. In the case of Thulia Kali v. State of Tamil Nadu , it was observed as under:
First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can, hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report of the Police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed. The names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the First information report quite often results in after thought. On account of delay, the report not only gets benefit of the advantage of spontaneity city danger creeps in of the introduction of coloured version, exaggerated account of concocted story as a result of deliberation an consultation. It is. therefore, essential that the delay in the lodging of the First Information Report should be satisfactorily explained When an occurrence is not reported for more then 20 hours after the occurrence even though the Police Station is only two miles from the place of occurrence, it is unsafe to base conviction upon the evidence.
8. In the case of Ishwar Singh v. State of U.P. AIR 1970 SC 2423, it was observed as under:
The extra-ordinary delay in sending the FIR is a circumstances which provides a legitimate basis for suspecting 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 establishments and set up a distorted version of the occurrence. In this case, the suspicion hardens into a definite possibility when the case made in court differs at least in two very important particulars from that narrated in the FIR. In such a case, the evidence of the eye witnesses "cannot be accepted at its face-value.
9. Thus, in view of the principles laid down by Hon'ble the Supreme Court, the delay in filing the report in the present case, is fatal, and it creates suspicion.
10. It was also argued that according to the prosecution case, Bhopal Singh was armed with a gun, Girdhari Singh with an axe and Hanwant Singh and Madhu Singh were armed with Farsis. And the other accused persons including Pooniya bad Lathis with them. In the injury report, no injury by any sharp weapon or by gun shot is there. A person who would have a sharp weapon in his hand, would nO inflict injury by its sharp side, cannot be believed. All the accused persons had inflicted blows to the victim, out of whom, 4 were armed with deadly weapons. It is not the case of the prosecution that they had used their weapons from the reverse, side, and despite that there was no injury on the person of Chuni Lal by a sharp weapon. It created a great suspicion in the correctness of the prosecution story.
11. Chuni Lal PW 4, in his cross examination admitted that a case against him under Section 307, IPC, was pending in the court of Additional Sessions Judge, Sirohi, in which, all the accused persons in the present case, were witnesses against him. Thus, this is a proof of enmity, and on account of this enmity, after due consultation and deliberation, the report (Ex. P 1) was lodged with delay. Moti PW 1, uncle of Chuni Lal, in his examination-in-chief, corroborated the story cf the prosecution and stated that all the accused persons who were tamed in the FIR, had given beating to Chuni Lal, but, in his cross-examination, he admitted that he had no occasion to meet the accused persons, prior tO the incident, and that the names of the accused persons were told to him by the mother of Chuni Lal. It means that Moti PW 1 did not know the accused persons prior the occurrence. He did not' know their names even, and, in his court statement, he identified the accused persons and named each of them, which indicates that this witness is a made out one. No identification parades of the accused persons was conducted, nor were they known to Moti PW 1, so the statement of Moti is unbelievable, and cannot be relied on.
12. Another alleged eye witness was Mst. Kesi, mother of Chunilal injured, who has stated that the she and her husband Visram bad arrived at the chowk where their son Chuni Lal was beaten up by Bhopal, Girdhari, Hanwant and others. She has stated that after beating him, for accused persons had taken him to his house, and from the house, he was again brought to 'Chohtta'. which is not the prosecution story. This also shows that Mst. M Kesi was not an eye witness to the alleged incident, and she has been made out as such.
13. Now, remains the solitary statement of Chuni Lal PW 4, the injured person. The argument of the learned Counsel for the petitioners was that the solitary statement is of Chuni Lal and that no conviction can be based on the basis of such solitary statement. In reply to his argument, the learned Counsel for the State argued that conviction can be based even on the solitary statement of a witness. According to him, the statement of Chunilal is corroborated by the medical and the injury report, and so, there is no reason to discard and disbelieve the statement of Chuni Lal.
14. Considered the arguments of both the learned Counsel. The principle of law Is that conviction can be based on the solitary statement of a witness, but, that statement should be of sterling worth. There should be some corroboration to that statement or that statement should be of that value that there remains no doubt about its correctness and truthfulness.
15. In the case of Badri v. State of Rajasthan 1975 Cr. LR 678, it was observed where there was difference of opinion between two medical officers examined in the case, as under:
...if a witness, who is the only witness against the accused to prove a serious charge of murder against the modulate his evidence to suit a particular prosecution theory for the deliberate propose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony.
16. In the case of Kartar Singh v. State 1955 RLW 60 which was a Division Bench decision of this court, it was observed as under:
It is true that an accused can be convicted even on the basis of the evidence of a single eye witness, but, such a witness must be of sterling worth. If it is found that the single witness to the occurrence is not sticking to the truth, then, it is very unsafe to ignore the discrepancies appearing in his or her statement and convict the accused on that basis alone.
17. In the present case the statement of Chunilal injured was read over to me, in detail. The report (Ex. P.l) was signed by Chunilal, though it was submitted by his father Visram. He gave statement to the police under Section 161 Cr.P.C. He was also examined by the Magistrate under Section 164, Cr.P.C. and lastly, be gave his statement in the court. All those statements were perused. There are differences in the statements of this witness. When some portions of his statements (Exs. D. 3 & D. 4) were brought to the notice of Chunilal, at the time of his cross examination, he denied to have given those statements. He also contradicted on certain facts mentioned in the report (Ex. P. 1). Not only on one of the questions, but practically, most of the portions of his statements recorded under Sections 161 & 164 Cr.P.C. were disowned by this witness. So, a person who disowns his own statement in the court, what is the sanctity of the statement of such a witness? So, keeping all these aspects in mind, I am of the opinion that witness Chunilal is not of sterling worth, and confliction on the basis of his statement, would be unsafe.
18. Another important aspect is that the Investigating Officer in this case, has not been examined by the prosecution. This is really very unfortunate thing. The entire case was investigated by a Police Officer and he was not examined by the prosecution, which means that the documents prepared by the Investigating Officer, have not been proved. The report submitted by Chunilal, has also not been proved, though, Chunilal has admitted his signature on it. After all, the Investigating Officer is a very important witness, and if he is not examined and he does not prove his case, the entire case of the prosecution on (his ground, fails on the ground. Had he been examined, there could be chances for the accused persons to show that the entire prosecution story was a connected one. He could be put to cross-examination, and so some material aspect could have come out from his cross examination. Therefore, non examination the Investigating Officer is fatal to the entire prosecution case which goes to its root.
19. The telegram was sent by Visram, wherein, no names of accused persons who had inflicted injuries to Chunilal were mentioned. Lateron, a detailed report was admitted. So, this aspect also creates doubt in the correctness of the telegram (Ex. D. !). In this respect reliance was placed by the learned Counsel on the case of Vilayat Khan v. State of U.P. AIR 1253 SC 122, where in it was observed as under:
Where telegram about murder, given almost immediately after the murder was committed, does not mention the names of the assailants, the omission is a strong circumstances in favour of the accused.
In the present case, the alleged incident had taken place on May, 1968 and the telegram was sent on 5th June, 1968 i.e., after 5 days. Even, then, no names were mentioned there in about the persons who had inflicted the injuries. Therefore, this omission is also a very strong circumstances in favour the accused persons in this case.
20. In view of my above discussion, I find that the offence has not been established beyond reasonable doubt, by the prosecution. By the arguments advanced by the learned Counsel and discussion made above, there arises a great suspicion about the correctness of the prosecution story. As such, the learned Magistrate as well as the learned Sessions Judge both have committed error in convicting the accused petitioners of the charges levelled against them.
21. Consequently, the revision petition is accepted-The petitioners having not been found quality of the charge levelled 'against them, are here by acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled.