Rajasthan High Court - Jodhpur
Mahendra Singh And Ors vs State Of Rajasthan on 15 December, 2022
Bench: Sandeep Mehta, Farjand Ali
(1 of 23) [CRLA-362/1990]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 362/1990
1. Mahendra Singh son of Duni Ram
2. Krishna Kumar son of Rawat Ram
3. Amar Singh son of Hardayal (since -deceased, appeal abated
on 06.07.2018)
4. Liladhar son of Sardara Ram
5. Lekhram son of Sahi Ram
All residents of Jasana, District Sri Ganganagar
----Appellant
Versus
The State Of Rajasthan
----Respondent
For Appellant(s) : Mr. S.G. Ojha
For Respondent(s) : Mr. R.R. Chhparwal, P.P.
Mr. B.S. Sandhu
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI
Judgment
Date of pronouncement : 15/12/2022
Judgment reserved on : 04/08/2022
BY THE COURT : PER HON'BLE MEHTA, J.
The appellants herein have preferred the instant appeal under Section 374 CrPC for assailing the judgment dated 24.11.1990 passed by the learned Additional Sessions Judge, Nohar, District Sri Ganganagar in Sessions Case No.1/1990 arising out of FIR No.185/1989 registered at the Police Station Nohar, whereby they have been convicted and sentenced as below :- (Downloaded on 15/12/2022 at 11:42:35 PM)
(2 of 23) [CRLA-362/1990] Offence for which Sentence, fine and default convicted sentence awarded Section 302 read with Life imprisonment alongwith a fine Section 149 IPC of Rs.500/- and in default of payment of fine, to further undergo one month's rigorous imprisonment Section 147 IPC One year's rigorous imprisonment alongwith a fine of Rs.5000/- and in default of payment of fine, to further undergo one month's rigorous imprisonment
All the sentences were ordered to run concurrently. The appeal to the extent of the appellant No.3 Amar Singh has abated on 06.07.2018 pursuant to his death.
Brief facts relevant and essential for disposal of the appeal are noted hereinbelow :-
Daleep Singh (P.W.1) lodged an FIR No.185/1989 (Ex.P/1) at the Police Station Nohar, District Sri Ganganagar on 05.12.1989 alleging inter alia that he and his maternal brother Mukhtyar Singh had gone to his field for taking care of the mustard crop. The field of Rawata Ram Jat is located about 4 kilas away. In the afternoon between 11 to 12 o'clock, they heard cries of his uncle Shri Bachan Singh, on which, they scaled the boundary of the Khala (water channel) and saw his uncle being belaboured by Krishna Kumar S/o Rawata Ram, Mahendra Singh S/o Duni Ram, Amar Singh S/o Hardayal, Leeladhar S/o Sardararam and Lekhram S/o Sahi Ram with lathis and barchhis.
The accused were exhorting that Bachan Singh should not be spared. He (the informant) and Mukhtyar Singh ran towards the direction where Bachan Singh was being assaulted. When they reached a distance of about 1 kila from the place of incident, the (Downloaded on 15/12/2022 at 11:42:35 PM) (3 of 23) [CRLA-362/1990] accused warned them that they should not come closer or else they too would meet the same fate as that of Bachan Singh. Being threatened and fearing for their lives, they did not go near Bachan Singh while he was being assaulted. Bachan Singh had fallen down on the ground and was bleeding profusely. Krishna Kumar was armed with a Barchhi, whereas the other accused were armed with lathis. The first informant further alleged in the report that his maternal uncle Shri Bachan Singh had been assaulted by the accused persons with an intention to kill him and he was lying in front of the Kotha built in the field of Rawata Ram.
Upon this information, FIR No.185/1989 came to be registered at the Police Station Nohar for the offences punishable under Sections 307, 147, 148, 149 and 323 IPC and investigation was commenced.
After sending Daleep Singh to the police station to lodge the report, Mukhtyar Singh, son of the deceased, alongwith Kartar Singh, Dara Singh, Arjun Singh, Harnam Singh, went to the place of incident, i.e. the field of Rawata Ram. They lifted Bachan Singh on a cot and brought him back home. Means of transport were not available in the village. A jeep was passing by and Harnam Singh brought it to their house. While Shri Bachan Singh was being taken in the jeep, Daleep Singh met them in front of the police station and he too joined them. Shri Bachan Singh got admitted at the Nohar Hospital and treatment was started. He expired in the next morning at about 05.00 - 06.00 a.m. For attributing motive of the incident to the accused, the prosecution witnesses alleged that Rawata Ram got the field of (Downloaded on 15/12/2022 at 11:42:35 PM) (4 of 23) [CRLA-362/1990] Bachan Singh transferred to his own wife's name by deceiving him in a state of intoxication. Bachan Singh complained that the money towards the land deal was still due and he would often demand the sale consideration from Rawata Ram. A case was filed regarding the land dispute and that was the motive for the murder. As Bachan Singh expired due to the injuries, offence under Section 302 IPC was added to the case. The file was assigned to Shri Tarachand, SHO, Police Station Nohar (P.W.8) for investigation. He prepared the Panchnama Lash and the site inspection report alongwith site map. Statements of the witnesses were recorded. The accused were arrested and as usual, recoveries of weapons were effected at their instance.
Upon concluding investigation, a charge-sheet came to be filed against the accused appellants for the offences punishable under Sections 302, 147, 148 and 149 IPC. As the offence under Section 302 IPC was Sessions triable, the case was committed to the Court of Additional Sessions judge, Nohar, where charges were framed against the accused appellants for the offences punishable under Section 302, in the alternative 302 read with Sections 149, 147 and 148 IPC. They denied the charges and claimed trial. The prosecution examined as many as 13 witnesses and exhibited 38 documents for proving its case. Upon being confronted with the prosecution allegations, in their statements under Section 313 CrPC, the accused denied the same and claimed to be innocent. One witness was examined in defence.
After hearing the arguments advanced by the learned Public Prosecutor and the learned defence counsel and (Downloaded on 15/12/2022 at 11:42:35 PM) (5 of 23) [CRLA-362/1990] appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellants as above by judgment dated 24.11.1990, which is assailed in this appeal.
Shri S.G. Ojha, learned counsel representing the appellants, vehemently and fervently contended that the entire prosecution case is false and fabricated. The witnesses Daleep Singh (P.W.1) and Mukhtyar Singh (P.W.2) were not present at the crime scene and have been created to be eye-witnesses of the incident. It was admitted by the witnesses that they were working in a field at a distance of about 4 kilas (about 650 feet) from the place where Shri Bachan Singh was assaulted. The Investigating Officer admitted that numerous farmers were working in the fields surrounding the Dhani of Rawata Ram and these persons would definitely have been in a better position to see the incident as compared to the first informant and Mukhtyar Singh, but none of these independent witnesses were examined in evidence to corroborate the flimsy and unreliable testimony of the self- acclaimed eye-witnesses Daleep Singh and Mukhtyar Singh. Shri Ojha further submitted that the theory of motive, which has been portrayed in the evidence of the witnesses Daleep Singh and Mukhtyar Singh that the accused persons had managed to fraudulently induce the deceased Shri Bachan Singh into selling his land in a state of intoxication without passing consideration towards the transaction is totally false because no documentary evidence to prove this allegation was led by the prosecution. On these grounds, Shri Ojha implored the court to accept the appeal, (Downloaded on 15/12/2022 at 11:42:35 PM) (6 of 23) [CRLA-362/1990] set aside the impugned judgment and acquit the accused appellants of the charges.
Learned Public Prosecutor, on the other hand, urged that the material prosecution witnesses Daleep Singh (P.W.1) and Mukhtyar Singh (P.W.2) had no reason whatsoever to falsely implicate the accused appellants. Rawata Ram, father of the accused Krishna Kumar, intoxicated Shri Bachan Singh and got a sale deed of his land executed by fraudulent means and without paying consideration. Bachan Singh informed his family members of this fraud and went to the disputed field to buttress his rightful claim for sale consideration. The accused persons, who had no intention whatsoever to make payment of the sale consideration towards the fraudulent land deal, took advantage of this opportunity and mercilessly assaulted Shri Bachan Singh by sharp and blunt weapons. Daleep Singh and Mukhtyar Singh were working in the field of Daleep Singh, which is just nearby to the field of Rawata Ram. Shri Bachan Singh cried out aloud upon being assaulted by the accused. His fervent cries were heard by the two witnesses, who rushed to the direction from where the cries were coming. There they saw the appellants mercilessly assaulting Shri Bachan Singh by sharp and blunt weapons. The witnesses made an attempt to intervene and save Bachan Singh, on which, they too were threatened with dire consequences. They immediately rushed away and approached the villagers. A few more persons gathered and all of them rushed back to the field of Rawata Ram, where Shri Bachan Singh was seen lying in a seriously injured condition. He was picked up in a cot and was (Downloaded on 15/12/2022 at 11:42:35 PM) (7 of 23) [CRLA-362/1990] taken to his home. Daleep Singh was sent to register the FIR and Mukhtyar Singh took his injured father Shri Bachan Singh to the hospital. The learned Public Prosecutor submitted that the statements of the material prosecution witnesses are duly corroborated by the evidence of the Medical Jurists Dr. Prakash Chand Gupta (P.W.3) and Dr. J.P. Swami (P.W.4), who proved the postmortem report of Bachan Singh (Ex.P/5), wherein injuries by sharp as well as blunt weapons were noted. Learned Public Prosecutor, thus, urged that the prosecution has proved its case as against the accused by unimpeachable evidence of the eye- witnesses, the Medical evidence and the evidence of the Investigating Officer and hence as per him, the trial court was absolutely justified in convicting the appellants by the impugned judgment. On basis of these submissions, learned Public Prosecutor implored the court to dismiss the appeal and affirm the impugned judgment dated 24.11.1990.
We have considered the submissions advanced at bar and have gone through the impugned judgment and have minutely re-appreciated the evidence available on record.
At the outset, we may note that the incident took place in the field, which admittedly had been sold by Shri Bachan Singh to Rawata Ram. The reason behind Bachan Singh's foray to the field of Rawata Ram as has been put forth in the prosecution case was that Rawata Ram had not paid the complete sale consideration and had rather managed to get the sale deed executed fraudulently by intoxicating Bachan Singh, who rightfully went to the field in question to demand the remaining sale (Downloaded on 15/12/2022 at 11:42:35 PM) (8 of 23) [CRLA-362/1990] consideration. However, the said story is on the face of the record unconvincing and seems to be concocted. In this regard, we may take note of the fact that the sale deed, on the strength whereof, the land in question had been transferred to Rawata Ram, was never brought on record either during investigation or at the trial. Thus, on the face of the record, the story that deceased Shri Bachan Singh went to the field of Rawata Ram in an attempt to recover the remaining sale consideration, is nothing but a figment of imagination. From the oral evidence of Mukhtyar Singh (P.W.2), it comes to fore that the sale in question took place 7 years earlier to the incident and thus, there was no rhyme or reason as to why at this belated stage, would venture into the field of Rawata Ram in the year 1989 for the purported demand of sale money. Apparently, thus, the prosecution has concealed the genesis of occurrence.
The prosecution case is based totally on the evidence of Daleep Singh (P.W.1) and Mukhtyar Singh (P.W.2), who were portrayed to be eye-witnesses. Both claimed that they were working in the field of Daleep Singh and were removing weeds from the mustard crop. The time was around 12 o'clock in the afternoon. They claimed to have heard fervent cries coming from the direction of Rawata Ram's field, on which, both of them rushed there and saw that Krishna Kumar gave a Gandasi blow on the head of Bachan Singh, whereas the other accused inflicted lathi blows to the victim. The witness Daleep admitted that his field is located at a distance of 4 kilas from the field of Rawata Ram and that one kila measures around 165 feet. Thus, there was a (Downloaded on 15/12/2022 at 11:42:35 PM) (9 of 23) [CRLA-362/1990] distance of more than 650 feet separating the field where Daleep Singh and Mukhtyar Singh were allegedly working and the field of Rawata Ram. It is an admitted position that numerous persons were working in the fields adjoining the crime scene. However, the prosecution did not examine even a single of these farmers to fortify or corroborate the testimony of Daleep Singh and Mukhtyar Singh, who are close relatives of the deceased. Law is settled that non-examination of independent witnesses cannot be considered to be the sole reason to discard the evidence of otherwise reliable eye-witnesses, but in view of the facts of the case at hand, non- examination of even a single person from the numerous farmers working in the nearby fields assumes great significance. It can be inferred from the evidence brought on record that independent witnesses were available, but withheld deliberately, which causes a serious doubt on the sanctity of the prosecution evidence. In the recent case of Khema and Ors. Vs. State of Uttar Pradesh [AIR 2022 SC 3765], the Apex Court had acquitted the accused of all charges while observing, inter alia, that though independent witnesses were available, they were not examined and thus, an adverse inference was drawn against the prosecution. In the instant matter, besides the other flaws and cracks in the story of the prosecution, one of the imperative factors to be considered is that the veracity of the statements of the alleged eye-witnesses, Daleep Singh (P.W.1) and Mukhtyar Singh (P.W.2), cannot be relied upon in light of the fact that they were not independent witnesses and there is no worthy corroboration by way of any other reliable piece of evidence to support their testimonies. Even if for a moment it is believed that Dalip Singh and Mukhtyar Singh (Downloaded on 15/12/2022 at 11:42:35 PM) (10 of 23) [CRLA-362/1990] somehow heard the cries of Bachan Singh, as the place where Shri Bachan Singh was assaulted was located at a distance of more than 650 feet (4 kilas) from the field where the two so-called eye- witnesses were working, they would consume significant time in reaching the place of occurrence and the persons working in the adjacent fields would definitely have heard the cries earlier. In spite thereof, both the witnesses claimed that they saw the first blow being inflicted to Bachan Singh by Krishna Kumar with a Gandasi. This assertion of both eye-witnesses again creates a grave doubt on the veracity of their version as it virtually conveys that the accused persons were waiting for the witnesses to arrive at the scene of occurrence before launching the assault. Even if it is assumed for the sake of arguments that the witnesses actually went towards the field of Rawata Ram on hearing some cries, it cannot be disputed that from such a long distance, the witnesses could not have identified that it was Bachan Singh, who was raising the hue and cry. If at all Bachan Singh had raised a hue and cry, the farmers working in the fields nearby the scene of incident would be expected to react in the same manner and hence, these farmers who were working closeby from the field of Rawata Ram, would be the first to rush towards the source of cries because human mind is naturally inquisitive and hence, the noise would definitely have drawn attention of all persons in the vicinity of the place of occurrence. Thus, the claim of the two witnesses that no one from the neighbouring fields came to the place of incident is absolutely unbelievable and is yet another circumstance which creates a doubt on the truthfulness of the two witnesses Daleep Singh (P.W.1) and Mukhtyar Singh (P.W.2). It may be (Downloaded on 15/12/2022 at 11:42:35 PM) (11 of 23) [CRLA-362/1990] noted here that in the oral report (Ex.P/1) submitted by Daleep Singh, descriptions of the accused have been given with names of their fathers. No overt act has been attributed to any of the accused in this report. While deposing on oath, the witness Daleep Singh made gross improvements and specifically alleged that Gandasi blow was inflicted to Bachan Singh by the accused Krishna Kumar. Further exaggerations are noticeable in the evidence of Daleep Singh regarding the exhortations given by the accused that they would not leave Shri Bachan Singh alive and would make the payment to him in this manner. While answering a pertinent question put to Daleep Singh in cross-examination, he admitted that while lodging the FIR, he had not mentioned the names of fathers of the accused and had no explanation as to how their names were mentioned in the report. Daleep Singh also admitted in his cross-examination that as no one was visible in the nearby fields so he did not raise a hue and cry. He then changed his stance and alleged that he had raised a hue and cry, but no one came to help. This version of the witness again creates a doubt on the truthfulness of his version because in cross- examination he admitted that Dhanis of Sahi Ram, Mahipat and Shyokaran are located to the west of Rawata Ram's field and the owners of these Dhanis reside there during sowing and harvesting season. He further admitted that at the time of the incident, wheat sowing was in progress. Thus, the claim of the two witnesses that no person other than them heard the cries of Shri Bachan Singh or that no one else went to the place of occurrence is unbelievable. Daleep Singh also admitted that when he and Mukhtyar Singh went towards the field of Rawata Ram, Bachan (Downloaded on 15/12/2022 at 11:42:35 PM) (12 of 23) [CRLA-362/1990] Singh was lying face down on the ground and the accused persons were standing at some distance. They took a few steps towards them, on which, the accused ran away. Daleep Singh further admitted in his cross-examination that after witnessing the incident, he and Mukhtyar Singh proceeded to their house. Nobody met them on the away. The most pertinent admission of Daleep Singh, which is reproduced hereinbelow, totally convinces us that both Daleep Singh and Mukhtyar Singh were created as eye-witnesses just in order to somehow or the other, implicate the accused persons for the alleged murder :-
EkSaus o Ekq[kR;kjflag us ipkZ nsus ls igys ;g jk; dh Fkh fd ge nksuksa xokg cu tkrs gSa A ;g ckr lgh gS fd eq[kR;kjflag o geus vkil esa ckrphr dh fd eSa cpuflag dk eSa Hkkutk gwa vkSj eq[kR;kjflag mldk yM+dk gS] ge nksuksa xokg cu tkrs gSa ] vkSj dkSu xokg curk gS A Thus, the witness candidly admitted that before lodging the report, he and Mukhtyar Singh consulted with each other and took a decision that both of them would become eye-witnesses because they were closely related to Shri Bachan Singh and that no one else would be ready to stand as witness.
Mukhtyar Singh (P.W.2) also gave evidence almost on the same lines as the first informant Daleep Singh (P.W.1). The witness stated that he and the other persons, who reached the place of occurrence, instructed Daleep to proceed to the police station for lodging the report. Thereafter, the witness, alongwith Kartar Singh, Dara Singh, Arjun Singh, Harnam Singh and others, took a cot, went to the field of Rawata Ram and lifted Shri Bachan (Downloaded on 15/12/2022 at 11:42:35 PM) (13 of 23) [CRLA-362/1990] Singh and brought him back home. Means of transportation were not available in the village and a jeep was randomly seen coming from the direction of Malwani. Harnam Singh stopped that jeep, wherein Bachan Singh was boarded and was taken to the Nohar Hospital. The witness further stated that when they had reached Nohar, there they saw a police jeep. They got Bachan Singh admitted into the hospital, where treatment was started. Bachan Singh expired on the next morning at about 05.00-06.00 a.m. In cross-examination, the witness admitted that he did not know the fathers' names of the accused other than Krishna Kumar and Lekh Ram. He never went to the village Jasana. He did not mention the names of fathers of Liladhar, Mahendra and Amar Singh when his police statement (Ex.D/2) was recorded. He could not say as to how the fathers' names of these accused were mentioned in this statement. He was confronted with the omission in the police statement (Ex.D/2) regarding the allegation that Krishna inflicted the first Barchhi blow on the head of Shri Bachan Singh and Liladhar gave prods of lathi on his back. He could not say why this fact was not mentioned in the FIR. The witness admitted in his cross-examination that after he and Daleep (the first informant) returned home, the relatives consulted amongst themselves and deliberated as to who should file the FIR. All of them sat together and decided that Daleep Singh and Mukhtyar Singh should become the eye-witnesses as they are close relatives of deceased Bachan Singh and others from the village would not give evidence. After this consultation, Daleep was sent to lodge the report. Daleep suggested that he (Downloaded on 15/12/2022 at 11:42:35 PM) (14 of 23) [CRLA-362/1990] (the witness) is the son of Shri Bachan Singh and thus, he should pose as witness of the incident. Daleep also instructed him to name the five accused and also to pose as an eye-witness. However, the witness explained that he had himself seen the incident and that is why he was making the deposition. Thereafter, Daleep was instructed to lodge the report. The relevant part of the cross-examination of the witness is quoted hereinbelow for ready reference :-
esjs firk tc ekSdk ls mBk dj yk;s rc mUgksusa eqyfteku ds firk dk uke ugha crk;k pwafd os csgks'k FksA eSa vkSj nyhi ?kj vk x;s rc gekjs fj'rsnkjksa us lykg dh Fkh fd ipkZ dkSu nsA fQj ;g nyhi dks dgk fd rwa ipkZ ns vkA ;g ckr lgh gS fd ge lc us cSBdj jk; dh fd nyhi o eq[kR;kjflag xokg cu tk;saxs vkSj D;ksafd xkao dk vkneh vkSj xokg ugha curkA blfy, geus lykg e'kfojk djds nyhi dks ipkZ djus Hkstk FkkA eq>s nyhi us dgk Fkk fd rwa e`rd cpuflag dk csVk gS rwa bl okdk dk xokg cu tkA ekjihVkbZ esa vk/kk ?kaVk yxk FkkA vk/kk ?kaVk rd ge Mksys ls ns[krs jgsA eSus jksyk epk;k Fkk fd ekj fn;k js ekj fn;kA jksyk lqudj lghjke] eghir ';ksdj.k dh <k.kh esa ls dksbZ ugha vk;k D;ksasfd bu <kf.k;ksa esa ogka dksbZ ugha jgrk Fkk nhxj [ksrksa esa ml le; dk'r ugha dj jgs FksA vkt esjs dks nyhi us dgk Fkk fd ikapksa eqyfteku dk uke ys ysuk fQj dg nsuk fd eSus okdk ns[kk gS] ysfdu eSus [kqn us okdk ns[kk Fkk blfy, c;ku ns jgk gwaA The witness also stated in cross-examination that when the deceased was lifted in cot and brought back to his home, no one met them on the way. We are of the firm view that these significant admissions (quoted supra) as appearing in the cross examination of the witnesses destroy the credibility of both the so-called witnesses and there is no hesitation in concluding so. (Downloaded on 15/12/2022 at 11:42:35 PM)
(15 of 23) [CRLA-362/1990] Dr. J.P. Swami (P.W.4) conducted medical examination of Bachan Singh in an injured condition at the Government Hospital, Nohar and issued the injury report (Ex.P/6). The doctor stated that Bachan Singh was brought to the hospital at 06.00 p.m. on 05.12.1989. Three to four men were accompanying the victim, but he could not ascertain the identity of those men. After the injured had been brought for treatment, he sent an information to the police. This fact as narrated by the Medical Jurist creates a great doubt on the theory put forth by the two eye witnesses that the victim had as a matter of fact, been taken to the hospital after the FIR was lodged. It clearly seems that Shri Bachan Singh was first brought to the hospital by some unknown person and the doctor informed the police. The FIR came to be registered much later. In this regard, the most important statement is that of Dayanand (P.W.7), who was posted as ASI at the Police Station Bhirani on the relevant date. The witness stated that on 05.12.1989 at about 04.00 p.m., Shri Daleep (the first informant) came to the police station Nohar and gave an oral report. He registered the FIR (Ex.P/1) on the basis of the oral statement of Daleep. Thereafter he proceeded to the place of incident and saw that Shri Bachan Singh was lying on the ground in an unconscious condition. The witness thought it fit to provide treatment to Bachan Singh and thus, he took him to the hospital and got him admitted. The doctor stated that the injured was not in a position to give a statement and thus, the witness proceeded back to the police station. In cross-examination, the witness stated that he got information of the incident at 04.00 p.m., but he could not disclose the precise time when he reached the crime (Downloaded on 15/12/2022 at 11:42:35 PM) (16 of 23) [CRLA-362/1990] scene. He elaborated that he picked up Bachan Singh from the place of incident and proceeded to the PHC, Nohar straightaway. The requisition given to the Doctor to conduct medical examination of Bachan Singh was not available in the court file. The witness explained that carbon copy of the requisition could be available in the file of the learned Public Prosecutor. In this requisition, the FIR number was not mentioned. The witness explained that this omission of mentioning the number of the FIR in the requisition was owing to an inadvertent error. The witness was put a question as to the mode of transportation he used to proceed to the place of incident, to which, he feigned ignorance. However, he explained that he had gone to the place of incident with two persons, named Googan and Yasin. A pertinent suggestion was given to the witness that as a matter of fact, he registered the FIR (Ex.P/1) on 06.12.1989, but he denied the same. He admitted that Bachan Singh had significant criminal record and that he had also been convicted in a few cases. He further stated that the complainant Daleep Singh went to the place of incident with him. A suggestion was given to the witness that Daleep Singh did not know the fathers' names of the accused and that he collected these details from the village Jasana and then lodged the FIR but he denied the same.
The evidence of Investigating Officer Shri Tarachand (P.W.8) is more or less formal in nature. However, in cross- examination, the witness admitted that at the time of the incident, farming operations, viz. sowing and reaping, were under progress and people were working in the fields nearby the place of incident. (Downloaded on 15/12/2022 at 11:42:35 PM)
(17 of 23) [CRLA-362/1990] He did not record their statements under Section 161 CrPC. The ASI told him that Bachan Singh was lying in a seriously injured condition at the place of incident and thus, he gave priority to take the injured to the hospital.
Upon consideration of the statement of Dayanand (P.W.7), we are convinced that the entire story put forth in the statements of Daleep Singh (P.W.1) and Mukhtyar Singh (P.W.2) that they saw the incident, wherein, the accused appellants assaulted Shri Bachan Singh in the field of Rawata Ram; the accused then threatened the witnesses, who ran away fearing for their own lives; they collected a few people from the village and went back to the place of incident; Bachan Singh, was lying injured at the place of incident and was brought back to his home and from there Mukhtyar Singh and other relatives transported him to the hospital, is totally false and fabricated. It is apparent that both the witnesses, namely Daleep Singh (P.W.1) and Mukhtyar Singh (P.W.2), are speaking blatant lies and they never saw the incident. ASI Dayanand (P.W.7) categorically stated that he reached the place of incident after registering the FIR No.185/1989 and saw Bachan Singh lying at the place of incident in a seriously injured condition. We have a serious doubt that the FIR could have been submitted before Bachan Singh was admitted to hospital. This being the situation, the entire story as put in the evidence of Daleep Singh and Mukhtyar Singh that they returned to the place of incident, picked up the injured Shri Bachan Singh, brought him back home is a bunch of lies. Daleep stated that after the FIR had been registered, he and the Inspector both (Downloaded on 15/12/2022 at 11:42:35 PM) (18 of 23) [CRLA-362/1990] proceeded for the village and on the way, they saw Shri Bachan Singh being brought to Nohar in a jeep. However, as per the ASI Shri Dayanand (P.W.7), it is he who picked Shri Bachan Singh and brought him to the hospital. The statement of Daleep Singh as well as Mukhtyar Singh is also falsified when we peruse the oral report (Ex.P/1), wherein it was clearly mentioned that Bachan Singh was lying in the field of Rawata Ram in front of Kotha. Daleep stated in his evidence that he and Mukhtyar Singh reached home after seeing the incident at about 12.30 to 01.00 p.m. Many people had already collected at the house of Shri Bachan Singh after hearing about the incident. The medical jurist Dr. J.P. Swami (P.W.4) prepared the medical report of Shri Bachan Singh, which was proved as Ex.P/6. This report bears time of preparation as 6.00 p.m. In this report it is mentioned that the police requisition was received at 6.00 p.m. The bed-head ticket through which Shri Bachan Singh was admitted to the hospital was not brought on record by the prosecution. The requisition provided by the police officials to the doctor for taking medical examination of the injured was also not proved. In the injury report (Ex.P/6), which was prepared at 6.00 p.m., the FIR number is not mentioned even though the prosecution had claimed that the FIR was registered on 05.12.1989 at 3.30 p.m. If at all, the FIR had been registered at 3.30 p.m., then without any doubt the number of FIR would be conveyed to the medical jurist in the requisition for medical examination of the injured and correspondingly it would be mentioned in the medico-legal report. Thus, there is a grave doubt as to whether the FIR was actually registered on 05.12.1989 at 03.30 p.m. (Downloaded on 15/12/2022 at 11:42:35 PM) (19 of 23) [CRLA-362/1990] On a perusal of the statements of Daleep and Mukhtyar Singh, it becomes clear that despite the fact that their relatives Kartar Singh, Sahab Singh, Dara Singh, Arjun Singh and Harnam Singh had come to their home and had been told of the incident, they did not take any immediate measures to proceed to the place of incident so as to take stock of the condition or to provide immediate medical aid to Shri Bachan Singh. It is the admitted prosecution case that Shri Bachan Singh was alive till the FIR was lodged. Apparently, thus, the relatives would naturally be expected to immediately rush the injured to the hospital so as to provide him medical aid and make an attempt to save his life. The fact that the first informant did not state anything regarding the condition of Shri Bachan Singh in the FIR, makes it clear that the complainant party gave higher priority to getting the police case lodged rather than taking necessary steps to provide medical aid to the victim. This unnatural conduct of the close family members in exhibiting gross indifference and making no effort whatsoever to save their close family member completely demolishes the reliability of the witnesses Daleep Singh and Mukhtyar Singh. The significant admissions as appearing in the deposition of Daleep Singh as well as Mukhtyar Singh that the family members consulted amongst themselves and then, it was decided to pose Daleep Singh and Mukhtyar Singh as the eye-witnesses of the incident affirms the fact that both of them had not seen the incident. Otherwise also, as the distance between the place where these two witnesses were working and the place where Shri Bachan Singh was assaulted is more than 4 kilas i.e. 650 feet, there was hardly any possibility that the witnesses could have (Downloaded on 15/12/2022 at 11:42:35 PM) (20 of 23) [CRLA-362/1990] heard the cries of Shri Bachan Singh while he was being assaulted.
Though, it is true that evidence of a relative or a partisan witness cannot be discarded merely on the ground that he is a relative of the deceased or has vested interest in the case, yet it is a settled proposition of law that the evidence of the partisan witness is required to be scrutinized very cautiously.
In Mahender Chawla and Ors. Vs. Union of India (UOI) and Ors. [(2019) 14 SCC 615], Hon'ble the Apex Court elaborately discussed and recapitulated the law on witnesses and with regard to interested or partisan witness, it was opined that an interested or a partisan witness is a one who is either a near relative of the victim of the crime or is concerned with the conviction of the accused of the crime and the testimony of such a witness is relevant but a sterner examination is required while adjudging the credibility of such a witness.
Here, in the case at hand, both the aforementioned witnesses, namely Daleep Singh (P.W.1) and Mukhtyar Singh (P.W.2) are the close relatives of the deceased and in view of the admissions made by them that before proceeding to lodge the FIR, certain deliberations and contemplations were made, a serious doubt is cast upon the truthfulness of the allegations levelled by them against the accused.
The statement Mukhtyar Singh that he and his relatives picked up Shri Bachan Singh from the place of incident and brought him back home and then, he was boarded onto a jeep is totally contradicted by the statement of Shri Dayanand, ASI (Downloaded on 15/12/2022 at 11:42:35 PM) (21 of 23) [CRLA-362/1990] (P.W.7) that it was he, who picked up the injured Bachan Singh from the place of incident and took him to the hospital. This grave contradiction in the version of Dayanand and Mukhtyar Singh regarding the sequence and manner in which Bachan Singh was taken to the hospital goes to the root of the matter and creates a grave doubt on the credibility of the witness Mukhtyar Singh. It may be reiterated that while Mukhtyar Singh claimed that he and his relatives, proceeded to the place of incident after Daleep had left for the police station and from there, his father Shri Bachan Singh, who was lying in an injured condition in front of Kotha at Rawata Ram's field, was brought back home and then a private jeep was employed to take Shri Bachan Singh to the hospital, as against this, Dayanand, ASI, stated that after registering the FIR, he proceeded to the place of incident, picked up Bachan Singh, who was lying there in an unconscious condition, and got him admitted to the Government Hospital Nohar. This significant contradiction is sufficient to create a grave doubt on the testimony of the two so-called eye-witnesses.
We are certain that the facts elicited in the cross- examination conducted from Daleep Singh and Mukhtyar Singh that the family members consulted amongst themselves and it was decided to portary both of them to be the eye-witnesses of the incident is the truth of the matter and actually neither of them had seen the deceased being assaulted by the accused. Introduction of the fathers' names of the three of the accused persons in the FIR despite the fact that neither Daleep Singh nor Mukhtyar Singh knew their parentage again affirms the doubt (Downloaded on 15/12/2022 at 11:42:35 PM) (22 of 23) [CRLA-362/1990] created in the mind of the Court regarding truthfulness of the story as set out in the FIR and in the deposition made by these two witnesses.
It would thus, not be safe to place reliance on the testimony of Daleep Singh (P.W.1) and Mukhtyar Singh (P.W.2). Apparently, both the witnesses are tailor-made witnesses. The fact that number of farmers, whose fields are nearby the place of incident, were carrying out the agricultural/farming operations in their respective fields, and none of them was examined to corroborate the flimsy prosecution story, convinces us that it would not be safe to affirm the conviction of the accused appellants by placing implicit faith in the cooked up story as stated by the so-called eye-witnesses, namely, Daleep Singh (P.W.1) and Mukhtyar Singh (P.W.2). The Investigating Officer claims to have recovered lathis at the instance of Mahendra Singh, Leeladhar and Amar Singh and a Barchhi at the instance of the accused Krishna. However, no FSL report pertaining to the presence of blood was procured or proved by the prosecution and hence, the recoveries become redundant. Once these two witnesses are disbelieved, there remains no evidence whatsoever on the record of the case so as to prove the charges against the accused appellants beyond the reasonable doubt.
As a consequence, we feel that the trial court faltered while appreciating the evidence available on record and recording the finding of guilt against the appellants vide the impugned judgment dated 24.11.1990. The judgment rendered by the trial court does not stand to scrutiny and is hereby reversed. The (Downloaded on 15/12/2022 at 11:42:35 PM) (23 of 23) [CRLA-362/1990] accused appellants are acquitted by giving them the benefit of doubt. They are on bail and need not surrender.
However, keeping in view the provisions of Section 437-A CrPC, 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, the appellants shall appear before the Supreme Court.
The appeal is allowed in these terms. The record be returned to the trial court.
(FARJAND ALI),J (SANDEEP MEHTA),J
Pramod/-
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