Rajasthan High Court - Jaipur
Surjan Singh And Ors. vs The State Of Rajasthan on 17 January, 1992
Equivalent citations: 1992(1)WLN53
JUDGMENT Kanta Bhatnagar, J.
1. This appeal is directed against the judgment dated May 16, 1988 passed by the Sessions Judge, Churu by which appellants Surjan Singh, Man Singh, Umed Singh and Ashu Ram were convicted under Section 302/34 I.P.C. and the first three were sentenced to imprisonment for life and a fine of Rs. 250/- each, in default of payment of fine to further undergo six months R.I. Appellant Ashu Ram was sentenced to imprisonment for life and a fine of Rs. 100/-, in default of payment of fine to undergo six months R.I.
2. Briefly stated the prosecution case is that four days prior to the incident of giving a beating to Ganesh Singh, in the night of January 23, 1986 Bhanwar Singh, brother of appellant Man Singh entered the house of Mohan Singh brother of deceased Ganesh Singh and his hiding in the house was detected by Umed Kanwar wife of Mohan Singh. She raised a cry at which Raghuvir Singh [P.W.3) son of deceased Ganesh Singh went there and gave a beating to Bhanwar Singh which caused annoyance to the family members of Bhanwar Singh. That, on January 23, 1986 at about 9.00 P.M. Ganesh Singh went to the house of Phoola Ram (P.W. 1) and asked him to work with him as labourer. Phoola Ram expressed his inability as he was already employed as labourer by Abbas. At that time Magha Ram (P.W.2) brother of Phoola Ram was also present and the two brother were warming themselves as the 'dhuni' [furnace] Ganesh Singh went out when he had gone to a distance of 6-7 paundwas, he was surrounded by the appellants and three others viz. Bhadar Singh, Kishan Singh and Mohan. The assailants gave a beating with 'barchhi', 'lathis' and 'Jeis'. On hearing the cry of Ganesh Singh, Phoola Ram and Magha Ram came cut of the house and saw the assailants giving a beating to Ganesh Singh. Ganesh Singh fell down. Phoola Ram went to the house of Ganesh Singh and informed about the incident. Pappu, son of Ganesh Singh went to the site. Raghuvir Singh, another son of Ganesh Singh also reached there. Ganesh Singh was first taken to his house in a camel cart and then to Churu Hospital in a jeep by Raghuvir Singh, Kalyan Singh and Himmat Singh. Phoola Ram also accompanied them. On receiving information about Ganesh Singh being admitted in hospital in injured condition, Sadhu Singh (P.W.13), Station House Officer, Police Station, Churu went to the hospital in the same night and found Ganesh Singh unconscious. He could not therefore record his statement. The S.H.O. recorded the statement of Phoola Ram and on the basis of that 'parcha bayan' Ex. P/1 F.I.R. later on Ex. P/2 was chalked out. Dr. Chiranjilal (P.W.6), Medical Jurist, Bhartiya Hospital, Churu examined the injuries of Ganesh Singh and prepared the injury report Ex. P/13. The Doctor noted following injuries on his person:
1. Incised wound present on left parietal region of 10 cmx1 cm x bone deep.
2. Incised wound present on left parietal region of 2cm xicmx bone deep.
3. Incised wound of 6cm x 1cm x bone deep on left parietal region.
4. Incised wound of 4cm x 1cmx bone deep on left temporal region.
5. A lacerated wound of 7cm x 1cm x bone deep present on right parietal region.
6. A lacerated wound of 5cm x 1cm x bone deep present on right parietal region. '
7. A incised wound present on lateral aspect of left thigh of 3x0.4x1 cm.
8. There are four bruises on lateral aspect of the chest left side measuring 8-10 cm. on length and each 2.5cm. in breadth with bone crepitus present.
9. A lacerated wound present on dorsal aspect of right band of 4cm x 1/2 cm. x 0.3 cm.
10. A lacerated wound present on lateral malleolus on left leg of size 1 cm. x 1cm x 0.3 cm.
3. According to the Doctor, Injuries No. 1,2,3,4, and 7 could be caused by sharp edged weapon. He advised x-ray.
4. Ganesh Singh succumbed to the injuries sustained by him on January 24,1986. Dr. Vijay Swaroop Bhargava (PW 5), Medical Jurist, conducted the autopsy over the dead body of Ganesh Singh. The Doctor noted following injuries on his person:
1. Incised wound 4cm x1cm x bone deep over left temporal region of scalp.
2. Incised wound 9 cmx 1cm x bone deep over parietal region of scalp.
3. Incised wound 7.5x0.8cm. x bone deep over parietal region of scalp.
4. Incised wound 6cm x 1cm x bone deep left parietal region of scalp posteriorly.
5. Lacerated wound 7cm x1 cmx bone deep over right parietal region of scalp anteriorly.
6. Incised wound 5cm x 1cm x bone deep over right parietal region of scalp posteriorly.
7. Incised wound 3cm x 0.5cmx1cm lateral aspect of mid of left thigh.
8. Lacerated wound 4cmx 0.5cm x 0.3cm over dorsal aspect of right hand.
9. Lacerated wound 1cm x 1cm x 0.3cm lateral melleolus left leg.
10. Bruises on lateral aspect of the leftside chest in lower part measuring 2.5cm in width each and 8-10 cm in length. Bone crepitus present.
5. The postmortem examination report is Ex. P/12. In the opinion of the Doctor, the cause of death was shock and intracraneal hemorrhage in the form of subdural haemorrhage due to head injury and injuries No. 1 to 6 were sufficient in the ordinary course of nature to cause death.
6. Village melusar where the incident had taken place being within the jurisdiction of Police Station Sardarsahar, 'parcha bayan' (Ex. P/1) was sent there and Jogendra Singh (PW 14), Station House Officer, Sardarsahar on the basis of that parcha bayan, chalked the formal F.I.R. (Ex.P/2) and registered the case. S.H.O. Jogendra Singh went to the site and inspected the site and conducted investigation. He prepared the necessary memos. The blood stained clothes of the deceased were taken in possession. The blood soacked earth from the place of the 'Jhompra' where deceased is said to have been brought after his sustaining the injury was taken. The S.H.O. arrested appellant Man Singh on February 1, 1986 vide memo Ex. P/23, Umed Singh vide memo Ex. P/24 and Surjan Singh vide memo Ex. P/25. Ashu Ram appellant was arrested on January 7, 1986 vide memo Ex. P/15 by Shankar Lal (PW 12), Deputy Superintendent of Police, Churu.
7. On February 14, 1986 in pursuance of the information furnished by Man Singh appellant (Ex.P/16), one 'barchhi' was recovered vide memo Ex.P/6. On the same day in pursuance of the information (Ex.P/17) furnished by appellant Surjan Singh one 'bamboo stick' was recovered vide memo Ex. P/10. On the same day at the information (Ex.P/18) furnished by Umed Singh, one 'lathi' was recovered vide memo Ex. P/16. The articles were sent for chemical examination. According to the Chemical Examiner's report, the blood stained clothes of the deceased, blood soaked earth taken from outside the house of Phoola Ram and the 'barchhi' were stained with human blood.
8. Upon completion of necessary investigation, chargesheet against the four appellants was filed in the Court of Chief Judicial Magistrate, Churu. The learned Magistrate finding it a case exclusively triable by the Court of Sessions, committed the case to the Court of Sessions Judge, Churu. The learned Sessions Judge, chargesheeted the appellants under Section 302/34 I.P.C. and recorded their pleas. All of them' denied the indictment and claimed to be tried. In order to substantiate its case, prosecution examined sixteen witnesses in all. In their statements under Section 313 of the Code of Criminal Procedure, the appellants denied the allegations levelled against them. No defence witness was examined. The learned Sessions Judge placed reliance on the prosecution testimony and passed the judgment under appeal. It is in grievance of their conviction and sentences that the appellants have approached this Court through this appeal.
9. We heard Mr. M.M. Singhvi, learned Counsel for the appellants Surjan Singh and Umed Singh and Mr. M.L. Garg, learned Counsel for the appellants Man Singh and Ashu Ram and Mr. S.M. Singhvi, learned Public Prosecutor for" the State and perused the record of the case.
10. Learned Counsel for the appellants has assailed the findings of the learned trial Judge on a number of grounds. According to them, there are contradictions in the F.I.R. and the story narrated in the Court and the change of the place of the alleged incident. The discrepancies in the statements of the witnesses; delay in recording the statements of the witnesses and the absence of evidence regarding the alleged weapons of offence being kept in sealed condition after recovery till the date it reached the office of the Chemical Analyst, have not been properly taken note of by the learned trial Judge.
11. Prosecution has led direct as well as circumstantial evidence to connect the appellants with the commission of the crime. The direct evidence is of Phoola Ram (PW1), Magha Ram (PW2) and Poorna Ram (PW 8). The circumstantial evidence is the motive and recovery of 'barchhi' in pursuance of the information furnished by Man Singh and 'lathis' in pursuance of the information furnished by Surjan Singh and Umed Singh. According to the prosecution Bhanwar Singh, brother of Man Singh appellant having entered the house of Mohan Singh brother of Ganesh Singh, in the absence of the latter and concealing presence from Umed Kanwar (PW9) wife of Mohan Singh and Raghuvir Singh (PW 3), son of Ganesh Singh giving the beating to Bhanwar Singh, in the night four days prior to the alleged incident of the belabouring of Ganesh Singh, caused annoyance to the family members of Bhanwar Singh and they challenged to take revenge and the appellants committed the murder of Ganesh Singh. To substantiate this contention Umed Kanwar has been examined as PW 9. According to her Bhanwar Singh was sitting in the corner of the room and that he might be having evil intention. That, on her raising the cry, Ranvir Singh son of her brother-in-law (Jeth) deceased Ganesh Singh came there and gave a beating to Bhanwar Singh. Bhadar Singh, father of Bhanwar Singh and Man Singh and others went to rescue Bhanwar Singh. According to the witness, she closed the door of the house. Raghuvir Singh (PW 3), supporting this contention stated that he gave a beating to Bhanwar Singh and a group of persons having come to the rescue of Bhanwar Singh, challenged that they would kill Raghuvir Singh and Ganesh Singh. Kalyan Singh (PW 10), nephew of Ganesh Singh has stated about this incident and his going to the site but a denied the fact of Raghuvir Singh giving a beating to Bhanwar Singh. He stated that they had thrown challenge to kill . Raghuvir Singh. These witnesses have denied to have lodged any information to the police of the occurrence rather stated that at the instance of Bhanwar Singh, case was registered against Raghuvir Singh But the same was later on dropped.
12. Raghuvir Singh and Kalyan Singh have stated that in the evening a little before the incident while coming towards their house, they in the way saw the four appellants passing on the road. That, at that time, Man Singh and Ashu Ram were armed with "barchhis' and Surjan Singh and Umed Singh with 'lathis'. According to the witnesses they had no talk with them and silently passed by their side. If the challenge of the accused party was to kill Raghuvir Singh who is said to have given a beating to Bhanwar Singh, then they would not have missed the chance on seeing Raghuvir Singh. According to the prosecution, Raghuvir Singh had gone to the house of Umed Kanwar and gave a beating and there was a challenge to him. If Raghuvir Singh was the target then, it does not appeal that the annoyed accused party would have left him and instead of gave a beating to his father. Except the family members of Ganesh Singh i.e. his sister-in-law Umed Kanwar and his son Raghuvir Singh and his nephew Kalyan Singh, no independent witness has been examined to substantiate this part of the prosecution case. Umed Kanwar was not even examined by the police and was introduced at the trial. Bhanwar Singh has not been examined. As such no importance can be given to this circumstance. However, if the case against the accused is proved by other evidence, in other words in the absence of motive even, if the prosecution case otherwise stands proved, conviction can be, because mostly it is the subjective condition of the mind of a person which leads him to do a particular act in a particular way.
13. The learned Counsel for the appellants referred, to the contents of the F.I.R. where along with the four appellants, three more persons viz. Bhader Singh, Kishan Singh and Mohan have been shown as the assailants. It is the 'parcha bayan' of Phoola Ram which is treated as F.I.R. In his statement before the Police even Phoola Ram has stated about seven persons being the assailants of Ganesh Singh. However, in his statement in the Court, he has categorically stated that Bahadur Singh, Kishan Singh and Mohan were not there amongst the assailants and that he had not seen those three persons at the place of occurrence till the four assailants ran away from there. In his statement in the court and the statements of other two eye witnesses viz. Magha Ram and Poorna Ram it has come that only appellants only were the assailants. Even presence of the other three i.e. Bahadur Singh, Kishan Singh and Mohan has been denied. Phoola Ram's attention being drawn to portion A to B of Ex. P/1, he denied to have stated so. He has also denied to have stated before the police about Bahadur Singh instigating the others to kill Ganesh Singh. He also denied to have stated so in his police statement Ex. D/2. He also denied to have stated before the police about seven persons causing injuries to Ganesh Singh with 'lathis', 'barchhis' and 'jai'. According to him nobody had used 'jai' in giving a beating. This is in contradiction to his version in the F.I.R. that Bahadur Singh was having a 'jai' which he used. The improvement in the prosecution case i.e. initially seven persons being named as the assailants and thereafter presence of three of them being excluded by the witnesses, raises a suspicion about the truthfulness of the prosecution case. Jogendra Singh (PW 14), S.H.O. Police Station, Sadulsahar has stated that out of the seven persons named in the F.I.R. no case was made out against Bahadur Singh, Kishan Singh and Mohan. No chargesheet was filed against these three persons. This being the position, there is force in the argument of the learned Counsel for the appellants that if three persons could be initially falsely implicated in the case, there is no certainty that case against the four appellants has also not been falsely concocted.
14. The argument of the learned Counsel is that the F.I.R. was not lodged by the person and in the way prosecution alleges, rather it was a post investigation document and a number of persons were named to be the assailants so that the case may be brought within the ambit of unlawful assembly. That, the unfairness of the prosecution is evident from the fact that they have without any reasonings dropped three persons and picked up four to face the trial.
15. According to the learned Counsel, the delay in sending the F.I.R. to the concerned Court also indicates that the same was prepared after investigation with consultation with the family members of the deceased in order to implicate the whole family of Bahadur Singh.
16. Another fact pointed out by the learned Counsel to raise a suspicion over Phoola Ram (PW1) and the case being registered at his information is that Sadhu Singh (PW 13), A.S.I. Kotwali, Churu who had reached the hospital on receiving information about Ganesh Singh being admitted in an injured condition has shown Phoola Ram to be the injured. The trend of cross-examination to Phoola Ram and Magha Ram is that some quarrel had taken place between Phoola Ram and Ganesh Singh on the latter entering the house of former and trying to outrage the modesty of the wife of the latter. This suggestion has been denied by the witnesses but according to the learned Counsel, the presence of the blood on the soil of the house of Phoola Ram, which fact we would discuss later on substantiates the defence version.
17. According to the learned Counsel Phoola Ram was also injured in the incident. In that connection, learned Counsel referred to the statement of Sadhu Singh (PW 13), who has stated that he has started recording the statement of Phoola Ram at 2.50 in the intervening night of 23rd and 24th of January 1986 and completed it within ten minutes. He further stated that Phoola Ram who had given the statement of Ex. P/1, was admitted in the hospital in injured condition. The learned trial Judge has opined that Sadhu Singh might have per mistake named Phoola Ram instead of Ganesh Singh being admitted in the hospital. It is not typographical error because Sadhu Singh has categorically stated about Phoola Ram (PW1) who has given the statement Ex. P/1 being admitted in the hospital in injured condition. He further stated that he had not recorded the statement Ex. P/1 of Phoola Ram by taking him aloof rather he had recorded his statement at the place where he was lying on the cot.
18. The contention of the learned Counsel for the appellants is that Phoola Ram also might have been injured in the incident that might have taken place inside his house as the presence of blood on the wall of his house shows. The person admitted in the hospital might have given some statement while lying on the bed which having not suited the prosecution might have been with held.
19. The F.I.R. reached the Court of the Magistrate on January 27,1988. The learned Public Prosecutor submitted that the F.I.R. was recorded by Sadhu Singh (PW 13) Assistant Station House Officer of Police Station Churu who sent the same to Jogendra Singh (PW 14], Station House Officer, Police Station, Sardarsahar and that might be the reason for the F.I.R. not being despatched at its earliest. The submission does not hold good because Jogendra Singh had received the F.I.R. on January 24, 1986 at 5.45 A.M. through Head Constable Kartar Singh and case was registered at that Police Station. No explanation has come forth from the Investigating Officer regarding the delay of three days in the F.I.R. reaching the concerned Court. This has given rise to the argument of the learned Counsel for the appellants that Ex. P/1 was not the F.I.R. rather it was recorded subsequently after consultation and thinking over the matter as to who should be made the assailants and whom to make the witnessses in the case as is evident from the statement of Sadhu Singh that some statement of some injured person admitted in the hospital was recorded while he was lying on the bed. Raghuvir Singh stated that his father was conscious even when talon to the hospital. Be that as it may, all these facts raise suspicion about Ex. P/1 being the pre-investigation document.
20. The above discussion regarding Ex. P/1 F.I.R. being post investigation document taken together with the inconsistencies in statement of Phoola Ram in the F.I.R. Ex. P/1 statement Under Section 164 Cr.P.C & Ex. D/1 his police statement Ex. D.2, and the statement in the Court and the variance between his testimony and that of other alleged eye witnesses, suggest that Phoola Ram is not a witness of such a sterling worth that without corroboration from other witnesses or circumstances, conviction can be based on his testimony. As such content scrutiny of other evidence is required. However, before discussion the evidence of the other eye witnesses viz. Magha Ram (PW 2) and Poorna Ram (PW 8), a discussion regarding the place of occurrence is necessary.
21. According to all the three eye witnesses occurrence had taken place in the lane at some distance from the 'jhoompa' of Phoola Ram (PW 1) and near the corner of the house of Poorna Ram (PW 8). The prosecution case is that when the assailants had taken to heels, Phoola Ram and Magha Ram went to the place of the incident. Phoola Ram went to the house of the injured to inform his family members and Magha Ram took the injured outside the jhoompa' of Phoola Ram and he was made to lye there. The witnesses have stated that there was profuse bleeding from the body of the injured at the place of the incident itself and blood had fallen on the ground. According to Magha Ram, Ganesh Singh walked up to the 'jhoompa' of Phoola Ram with the support of his shoulder. The witnesses stated that blood might have fallen on the way but they were not sure about it. It is important to note that neither the hands or other part of the body of Magha Ram nor his clothes had any stain of blood. If a person profusely bleeding walks a while with the support of other, that other person naturally would have blood on his clothes or person. The Investigating Officer has categorically stated that he had not found blood at the place of occurrence pointed out by the witnesses nor was any drop or trail of blood in the way from the place of the incident to the place outside the 'jhoompa' of Phoola Ram where Ganesh Singh was made to lye. The Investigating Officer has taken blood soaked plaster from the wall of the 'Jhoompa' of Phoola Ram. If the blood was so profusely bleeding that the plaster of the wall even was stained with blood, then it cannot be believed that not a drop of blood might have fallen on the ground where the incident had taken place or in the way the injured had walked after sustaining injuries.
22. In the case of Babu Singh and Ors. v. The State of Rajasthan 1978(3)R.Cr.C. 267, absence of blood on the alleged scene of occurrence was held to be suggestive to the fact that the prosecution witnesses have deliberately changed the site of the event with the ulterior motive of depriving the accused of plausible self defence. The learned Counsel for the appellants placing reliance on that case in which both the parties were injured submitted that in the instant case also in view of the statement of Sadhu Singh (PW 13), the Phoola Ram while giving the statement at the hospital was lying on the cot being admitted in the hospital and had given the statement in that very position. In the absence of any convincing evidence regarding the defence of Ganesh Singh having been injured in the house of Phoola Ram and the latter sustaining injuries at his hands we do not feel inclined to attach any importance to the defence version. However, absence of blood at the alleged place of the incident or in the way and its existence on the wall of the 'jhoompa' of Phoola Ram do at least suggest that the incident might not have taken place where the prosecution alleges and the story of Magha Ram bringing the injured from the place of incident to the 'jhoompa' of Phoola Ram is not believable. This also casts a doubt on the evidence of Phoola Ram, Magha Ram and Poorna Ram regarding their witnessing the incident taking place in the lane.
23. In the case of Nihar Singh v. State of Rajasthan 1986 RLW 128 the circumstance of absence of blood on the alleged scene of occurrence was taken as rendering the prosecution story doubtful and it was held that the prosecution cannot succeed and accused were held entitled to acquittal.
24. Applying this principle to the case on hand, the prosecution case regarding the venue of incident in falsified. According to the prosecution a number of persons had assembled there. According to Phoola Ram (PW 1), Dana Ram had reached there. He has not been examined and Poorna Ram had categorically stated that Dana Ram was not there. Bheru Lohar, Phoola son of Pema Mali and Chanda Lohar are said to have reached the site at the time of the incident but they have also not been examined by the prosecution. Bheru was even cited as prosecution witness but for the reasons best known to the prosecution he was subsequently dropped. Magha Ram has been examined as eye witness. According to Phoola Ram, Magha Ram was with him at his 'jhoompa' and they were warming themselves at the 'dhuni' (fire place). The Investigating Officer has stated that he did not find any "dhuni' inside or outside the 'jhoompa' of Phoola Ram. It has been argued by the learned Counsel for the appellants that Magha Ram was not with Phoola Ram in view of his initial version goes. Attention of Phoola Ram was drawn to portion G to H of Ex. P/1 FIR. Where he has stated that after Ganesh Singh fell on the ground his brother Magha Ram also came from towards the houses of lohars. Similar is the version in Ex.D/2, his police statement. The witness has disowned that version.
25. As discussed above, the initial prosecution story brought on record was that there were seven assailants. This story was given a go bye by Phoola Ram in his Court statement. Magha Ram was examined three days after the incident on January 27,1986. If he was an eye witness, there was no reason for the Investigating Officer not to record his statement earlier. The Investigating officer has stated that immediately after his reaching the site, he started investigating the matter. Magha Ram has stated that he was there when the Investigating Officer came to the village and that he had pointed out the place of the occurrence. Magha Ram has stated that police had come to his house on the next day of the occurrence. If it was so then there was no reason for the police not to interrogate the witness that day. This lend strength to the contention of the learned Counsel for the appellants that Magha Ram was implanted as witness later on. The Investigating Officer neither took his signatures on the memos nor showed in the site memo as to where from he or the other alleged eye witnesses viz. Phoola Ram and Magha Ram had witnessed the incident. The delayed recording of the statement of the witness assumes importance for the reason that as we would presently discuss, the witness has contradicted on a number of points from his previous statement and the statement of Phoola Ram. Magha Ram has stated about Ganesh Singh going walking to the 'jhoompa' of Phoola Ram taking support of the shoulder of the witness, whereas Poorna Ram has stated that Magha Ram lifted Ganesh Singh and took him to his house. Poorna Ram nowhere states about his helping Magha Ram in taking the injured to the 'jhoompa' of Phoola Ram. However Magha Ram in cross examination stated that his hands were stained with blood but he could not say whether Poorna Ram's hands were stained with blood or not. This reply shows that Poorna Ram had also touched the injured but whether his hands were stained or not, Magha Ram was unable to state. The fact of Magha Ram taking Ganesh Singh from the lane to the 'jhoompa' has also been introduced by him subsequently. This fact does not appear in his statement under Section 164 of the Code of Criminal Procedure Ex. D/3 and the only explanation is that the Magistrate might not have written so. Magha Ram has stated about the kind of weapons each assailants was having but he has not stated so in Ex. D/3 statement under Section 164 of the Code of Criminal Procedure. His attention was drawn to that statement and the only explanation was that the person recording the statement might not have written so. In Ex.D/4 police statement, the witness has stated about Bheru Lohar and Phoola son of Pema reaching there but he has denied to have stated so before the police and further stated that they had not at all come to the site. The learned Counsel for the appellants submitted that these persons might have declined to support the prosecution case and therefore, Magha Ram, at the instance of the police, has resiled from his previous statement.
26. The learned Counsel for the appellants contended that Poorna Ram was also implanted as a witness because his house happened to be near the place of the alleged incident. To substantiate this contention, the learned Counsel for the appellants referred to the improvements in the version of the witness at the Court from his previous statement Ex. D/5 recorded under Section 164 of the Code of Criminal Procedure and his police statement Ex. D/6. He has admitted that in Ex. D/5 he has not stated about Man Singh and Ashuram being armed with 'burchhis' and Surjan Singh and Umed Singh armed with lathis as stated by him in the Court and the explanation given by the witness is that as he did not remember as to which accused was having what weapon he did not state so there. If he could not remember a thing at that time then his recollecting the same after a lapse of more than a year at the time of his statement in the Court, is not believable. Similarly he has not stated in Ex.D/5 about Magha Ram taking Ganesh Singh to his house and the witness simply stated that he had stated so. He has also stated that he does not know whether Magha Ram took Ganesh Singh to his house by lifting him or otherwise. In the Court the witness has stated that when he for the first time saw Ganesh Singh, he was lying on the ground. Then he stated that in his presence assailants were giving a beating in quick succession to Ganesh Singh and he saw Ganesh Singh standing at the site. His attention was drawn to his police statement where at portion A to B, it is mentioned that on hearing the noise of lathi blows, he came out of the house where Ganesh Singh was lying and Man Singh, Ashuram, Umedsingh and Surjan Singh, all the four appellants were giving a beating to him with lathis and "burchhis'. Attention of the witness being drawn to that version and he stated that he does not recollect whether the assailants were giving a beating to Ganesh Singh while lying on the ground and that he does not recollect whether he had given A to B version in the police statement or not. An important discrepancy in the statement of Magha Ram and Poorna Ram is that whereas Magha Ram has stated that when he took injured Ganesh Singh outside the 'jhoompa' of Phoola Ram and he was made to lye there, Ganesh Singh asked for water and the witness gave him water. The statement of Poorna Ram is that he did not go to the house of Phoola Ram and that he took a 'lotha' of water and made Ganesh Singh drink it at the place of the incident itself where Ganesh Singh was lying. This type of statement of the witness coupled with the fact that he was examined on January 28, 1986, four days after the occurrence, and the conduct of the witness in going and sleeping inside the house after the occurrence raises a suspicion about his being present at the time of the incident, specially so when, as discussed above, the prosecution case about the incident having taken place in the lane is doubtful because of absence of blood there and the trail of blood in the way and presence of blood on the wall of the 'jhoompa' of Phoola Rani and the injured found lying there when Raghuvir Singh (PW 3), Kalyan Singh (PW 10) and Himmat Ram reached there.
27. The delay in recording the statements of material witnesses casts doubt on the fairness of the investigation as well as on the veracity of the testimony of these witnesses. The significance of the witnesses being examined at its earliest need not be over emphasized. If the witnesses are examined without delay, the chances of their being impressed by surrounding circumstances or improving upon the real story are minimised.
28. In the case of Balakrushna Swain v. The State of Orissa , despite the Investigating Officer having met the important eye witness did not examine him for some days and the unjustified, unexplained long delay on the part of the Investigating Officer in recording the statement of material witness during the investigation of a murder case has been taken by their Lordships of the Apex Court of the country as rendering the evidence of such witness unreliable.
29. In the case of Ganesh Bhawan Patel and Anr. v. State of Maharashtra , the alleged eye witnesses of the occurrence where examined on the following day of the Investigating Officer visiting to the scene of occurrence soon thereafter. This undue delay on the part of the Investigating Officer in recording their statement was held to cast a serious doubt about their being eye witnesses of the occurrence and it was observed as under:
Delay of a few hours, simpliciter, in recording the statements of eye witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced.
30. Discussing the duty of the Investigator, their Lordships observed as under:
Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses.
31. In the instant case, Magha Ram has claimed to be there at the time of the site inspection memo and has stated that he has pointed put the place of the incident to the investigating Officer, but despite that he was not examined for three days i.e. till January 27,1986. Similarly Poorna Ram another alleged eyewitness was examined after four days i.e. on January 28, 1986.
32. The learned Counsel for the appellants have rightly urged that the delay was in order to give a particular shape to the case. The initial story of seven persons being the assailants was changed when Magha Ram was introduced and there after only four persons were named as assailants for the reasons best known to the prosecution. The evidence of the eye witnesses as discussed above does not inspire confidence for the reasons discussed above i.e. prosecution story being altogether changed regarding the number of the assailants, the weapons they had and the manner they belaboured Ganesh Singh; the way in which injured was taken to the 'jhoomapa' of Phoola Ram; the contradictions in the statements of one from another; conduct of Poorna Ram; absence of blood at the site or trail of blood in the lane indicating the change of venue of occurrance by the witnesses and the Investigating Officer not caring to record the statement of the witnesses at its earliest.
33. In view of the above discussion, the only evidence remaining against the accused is the recovery of the weapons in pursuance of the information furnished by them. The only weapon said to be connected with the commission of crime is 'burchhi' said to have recovered from the house of Man Singh as the other weapons were not found, stained with blood. Shanker Lal (PW 12) has stated that in pursuance of the information Ex. P/16 furnished by Man Singh he recovered ' burchhi' vide memo Ex. P/9 from his "kotha'. Out of the motbirs of the recovery Safi (PW 4) has turned up hostile and the other viz. Narayan Singh (PW 11) happens to be the real brother of deceased Ganpat Singh who even has admitted that at that time none was present in the house except the wife of the accused and that the room from which the ' burchhi' was taken was found only bolted and not locked. It is important to note that Man Singh was arrested vide memo Ex. P/23 on February 1, 1986 and the alleged information and the recovery was on February 14, 1986 i.e. much after the arrest. Jogender Singh (PW 14) who had arrested Man Singh has stated that he was incharge of the investigation up to February 10, 1968 and thereafter Shanker Lal Vashishtha (PW 12) took the investigation in his charge. That, on February 3, 1986 also Shanker Lal had investigated the matter On February 3,1986, the accused did not furnish any information to Shankerlal nor did he furnish information to Jogendra Singh till he was in charge of investigation up to February 10, 1986. As such, the learned Counsel for the appellants argued that the recovery cannot be said to be on the basis of any voluntary information by accused specially when the same was made from the house where accused was not for about 20 days.
34. A very important factor in the case is that this ' burchhi' was not produced and exhibited in the court not was it shown to the Doctor to state whether the injuries of Ganesh Singh could be caused by it. Though, Mukan Das (PW 15) has stated about the 'burchhi' remaining in the malkhana in sealed condition, Shanker Lal has not stated as to whom he gave the 'burchhi' and when was it kept where. A very important factor damaging the prosecution case regarding the circumstance of the recovery of 'burchhi' in pursuance of the information furnished by Man Singh and connecting him with the commission of the crime is that in his statement under Section 164 of the Code of Criminal Procedure Ex. D/1, Phoola Ram has stated that Surjan Singh and Man Singh were armed with Lathis. At portion C to D of that statement, the witness has stated that Ashuram and Umed Singh were armed with ' burchhis'. In such circumstances, when the initial version was about Man Singh not having 'burchhi', he cannot be held guilty for using any 'burchhi', at the time of the incident. In the statement of Magha Ram Ex. D/3 under Section 164 of the Code of Criminal Procedure it is not mentioned as to which accused was armed with what weapon and the witness simply said that the scribe might not have written it. Poorna Ram (PW 8) has admitted that he did not state before the Magistrate who recorded the statement Ex. D/5 about Man Singh and Ashuram having 'burchhis' and Surjan Singh and Umed Singh lathis because he was not remembering as to which acused was having what weapon. In such circumstances, conviction of Man Singh cannot be held to be proved on the basis of such a recovery.
35. From the above discussion, we are of the opinion that prosecution has not succeed in establishing guilt against the appellants beyond reasonable doubt.
36. Consequently the appeal of Man Singh, Ashuram, Umed Singh and Surjan Singh, is allowed. Their conviction and sentence are set aside. They are in jail. They shall be set at liberty forthwith if not required in any other case.