Rajasthan High Court - Jaipur
Kishan Singh vs State Of Rajasthan on 29 April, 2002
Equivalent citations: RLW2003(2)RAJ1026, 2002(3)WLC424
JUDGMENT Sharma, J.
1. Appellant Kishan Singh along with co- accused Birbal and Kalyan Singh faced trial before the learned Special Judge (Sati Prevention) Rajasthan cum Additional Sessions Judge, Jaipur City Jaipur in Sessions Case No. 40/52. The learned trial judge by his impugned judgment dated July 5, 1995 found appellant Kishan Singh guilty for the offence under Section 302 IPC and sentenced, him to suffer imprisonment for life with a fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. Co-accused Kirpal Singh and Kalyan Singh were however acquitted. Appellant Kishan Singh has assailed the findings of the learned trial judge in the instant appeal.
2. Succinctly stated, the relevant facts for the disposal of the instant appeal are, that in the evening of December 15, 1988 Jagdish (deceased) was sitting at the booking counter of Beniwal Travellers which is situated near Bikaner Hotel, Station Road, Jaipur. His uncle PW.3 Birbal Singh was sitting in the office of the said Travel Agency nearby. At about 8.45 p.m. appellant Kishan Singh alongwith his companion came there and asked some money from Jagdish for liquor. However, Jagdish did not oblige them. Whereupon appellant Kishan Singh and his companion assaulted him. It is alleged that appellant Kishan Singh took out a knife and waved towards Jagdish. Thereupon Jagdish ran away on the road towards railway station. Appellant and his companion followed him and the companion of the appellant caught hold of Jagdish just near Shriram Bhojnalaya, where appellant Kishan Singh dealt three blows with knife on the back of Jagdish. Jagdish fell down and it is alleged that the appellant again inflicted knife blows on his body. Thereafter the assailants fled away.
3. Birbal Singh (PW.3) and Sher Singh (PW.11) a traffic constable amongst others also witnessed the incident. Birbal and Sher Singh took injured Jagdish in an autorickshaw and reached SMS Hospital, Jaipur where he was declared already dead. It also appears from record that the same day at about 8.55 p.m. one unknown person telephonically informed Police Station, Bani Park, Jaipur City that one person has been stabbed with knife opposite Polo Victory Cinema. The said message was recorded in daily diary (Ex.2). Since the said information was vague, the Incharge of the Police Station, Bani Park, directed Incharge of the Police Out post Sindhi Camp to immediately rush to the place of incident.
4. Birbal (PW.3) submitted a written report (Ex.P.3) to Het Ram SHO (PW.9) who forwarded it through Ram Chand (PW.6) to the P.S. Bani Park, where formal FIR Ex.P.17 was drawn under Section 302/34 IPC. Het Ram Inspected the site, prepared site plan Ex.P.4 where he found blood lying at two places. He seized the sample of the blood from the place of incident and he collected sample of the soil vide seizure memos Ex.P.5 and Ex.P.6. He also collected blood from the towel vide seizure memo Ex.P.7 and prepared the inquest report Ex.P.24.
5. Dr. Madan Tripathi, Medical Jurist (PW.8) conducted the autopsy on the body of the deceased and found the following injuries.
(i) Incised wound 4.5 cms. x 2 cms. on the left auterio- aspect upper arm. On probing the wound is found to be through and through having clear out regular margins.
(ii) Incised wound 2.5 cms. x 1 cm. on the med. aspect left arm having clear cut regular well defined margins. The wounds of injuries 1 and 2 was interconnecting each other.
(iii) Incised wound 3cms. x 1 cm. below and post to injury No. 1 having clear cut regular well defined margins.
(iv) Stab wound 3.5 cms. x 2cms. x chest cavity deep. (On probing the probe passes deep) over 6th inter costal spaced placed slight obliquely over 1 st. left side chest wall. On further dissection underlying pleura cut. Further a cut wound 4cms. x 1cm, size seen over lateral aspect left lower lobe of lung. The wound is through and through reaching upto medial aspect of left lung lower lobe. Further the left pleural cavity is full of blood about 1000 cc blood seen. The wound is having clean cut regular well defined margins.
(v) Incised wound 2.5 cms. x 1 cm. placed obliquely over right scapular region muscle deep having clean cut regular margins.
(vi) Incised wound 2.5 cms. x .5 cm. over thoraco lumber region over back placed obliquely muscle deep having clean cut regular defined margins.
(vii) Incised wound 3.5 cm. x muscle deep present over right side lumber region below injury No. 6 having clean cut regular and well defined margins.
(viii) Linear incision 1.5 cms. long left thigh middle 1/3 lat. aspect havingclean cut margins regular defined.
(ix) Abrasion (rub) 1.5 cms. x .5 cm. left leg middle 1/3 soft scab reddish in colour.
(x) Bruise semicircular in shape of length 7 cm. placed over right costal margin (hypocoridrial region) reddish in colour.
All these injuries were ante mortem in nature. The doctor opined that the cause of death was Syncope brought about as a result of injury to vital organs including lungs, which was sufficient to cause death in ordinary course of nature.
6. After completion of the investigation challan was filed against appellant and other co-accused persons. In due course the case came up for trial before the learned trial judge. Charge under Section 302 IPC was framed against the appellant who denied the indictment and claimed trial.
7. To prove its case the prosecution examined as many as P witnesses. Appellant Kishan Singh in his statement recorded under Section 313 Cr.P.C. denied all the circumstances appearing against him in the prosecution evidence and asserted that he has been falsely implicated. However, he did not adduce any evidence in defence. Learned trial judge on hearing the final submissions convicted and sentenced the appellant as indicated hereinabove.
8. We have heard Shri A.K. Gupta, learned counsel for the appellant and Shri S.S. Rathore, the learned Public Prosecutor and Shri Sanjay Tyagi learned counsel for the complainant at length and carefully perused the record of the trial court in extenso.
9. The prosecution evidence against the appellant Kishan Singh mainly comprises of the testimony of eye witnesses Sher Singh (PW.11) and Birbal Singh (PW.3). Dr. Madan Tripathi (PW.8) who conducted the post mortem examination proved post mortem report Ex.P.19. The blood stained garments of deceased as also the seized samples of the blood stained soil and the blood soaked cotton lifted form the place of incident were sent to the State Forensic Science Laboratory, Jaipur. The Assistant Director (Seriology), State FSL vide report Ex.P.23 has reported that the blood smeared soil, blood stained jerkin pant bushirt, baniyan and chaddy (underwear) of the deceased were stained with human blood. However, the group of the stained those articles could not be determined as those had disintegrated.
10. Birbal Singh (PW.3) is the uncle of the deceased. He deposed that on the ill fated day in the evening, he was sitting in the office of his travel agency situated near Bikaner Hotel, his nephew Jagdish deceased) was sitting outside the Office and was looking after the booking of the buses, that at about quarter to 9.00 p.m. appellant Kishan Singh and his companion came near Jagdish and demanded money for liquor. Jagdish declined to give any money and thereupon they started assaulting Jagdish. Birbal has stated that thereupon he immediately came out of the office and then appellant Kishan Singh inflicted a knife blow to Jagdish, who ran away towards station. Appellant and his companion followed his and near Bikaner Hotel Kishan Singh again inflicted a knife blow to Jagdish, who was running. The companion of the a'ppellant caught hold of Jagdish at Shriram Bhojanalaya, where again appellant Kishan Singh dealt knife blows to Jagdish, who fell down. Appellant continued to give knife blows and thereafter the appellant and his companion fled away; Birbal has further deposed that Sher Singh Constable has also reached there, they took injured Jagdish in an autorickshaw to SMS Hospital. Jagdish was profusely bleeding and that in the Hospital the doctor declared him dead. Birbai has further stated that he submitted a written report Ex.P.3 to SHO Het Ram who has also arrived at the Hospital. These witnesses also proved the site plan and seizure memo Ex.P.5 to P.8 Inquest report Ex.P.24 and seizure memo of blood stained garments of Jagdish Ex.P.11.
In his cross examination he deposed that he knew appellant Kishan for last 5/7 months as he used to extort money from the shop keepers. He further stated that in the autoriskshaw Jagdish was sitting on his lap and his clothes were drenched in blood. Clothes of Sher Singh were not stained with blood, The police however did not seize his clothes.
11. Sher Singh (PW.1) in his deposition stated that on December 15, 1988 around 8.50 p.m. while he was on patrolling duty and going towards Polo Victory Cinema he had seen two person catching hold of one person near Amit Hotel. They pushed him down and one gave Knife blow and others started giving blows with fists and legs. On seeing him they ran towards Kanti Nagar. The person who was having knife was Kishan Singh and person who sustained knife injury was Jagdish. He and Birbal then took Jagdish in an autorickshaw to SMS Hospital, where Jagdish was declared dead. In the cross examination he stated that while he got Jagdish entered in auto rickshaw Birbal came. SHO Het Ram came to the hospital on receiving the telephonic message.
12. Learned trial judge in the impugned judgment gave categorical finding that Sher Singh (PW.1) did not see the incident from his eyes. Co-accused Kalyan Singh and Kripal Singh were acquitted on the ground that they were not named in the report Ex.P.3. Identification of Kripal Singh was also not believed and it was held that the prosecution failed to prove beyond reasonable doubt that Kalyan Singh and Kripal Singh participated in the crime.
13. The case of the prosecution thus rests on the sole testimony of Birbal Singh (PW.3) It is contended by Mr. A.K. Gupta learned counsel for the appellant that testimony of Birbal Singh is infirm and no reliance can be placed on it. According to learned counsel Birbal Singh who is the real uncle of the deceased in his deposition stated that his son Pradeep Singh was not with him and Jagdish was not taken by Pradeep to the Hospital but a look at the report entered into Rojnamcha (Ex.D.2) demonstrates that as per information given by compounder of the office of the Medical Jurist, Pradeep Beniwal and Slier Singh constable took the dead body of Jagdish to the Hospital. Name of Birbal Singh was not mentioned in that report. Another circum-. stance suggested by the learned counsel to disbelieve the evidence of Birbal Singh is that although Birbal Singh deposed that while taking to Jagdish in auto rickshaw to the Hospital his clothes had been stained with blood, Het Ram I.O. did make no attempt to seize the blood stained clothes. The I.O. did not show the spot in the site plan where Birbal Singh was standing at the time of occurrence. Inviting our attention to the statement of Sher Singh (PW.1), learned counsel urged that Birbal Singh had reached at the spot after Jagdish was made to sit in the auto rickshaw by Sher Singh. It is also canvassed by learned counsel that the report Ex.P.3 is a concocted document. The actual first information report is Ex.P.2 which was recorded on the basis of information given by some person on telephone. The FIR was lodged with the P.S. Bani Park on December 15, 1988 at 10.45 p.m. but it was forwarded to the Ilaqa Magistrate on december 16, 1988 at 4.25 pm. whereas the court of Ilaqa Magistrate is very near from the Police Station. Learned counsel placed reliance on various authorities that shall be considered in the later part of this judgment.
14. Per contra Mr. S.S. Rathore, learned P.P. and Mr. Sanjay Tyagi learned counsel for the complainant supported the impugned judgment and contended that the prosecution has established the charge against the appellant beyond reasonable doubt.
15. It will be appropriate at this juncture to consider as to whether conviction can be based on the testimony of a single witness alone. As per Section 134 of the Evidence Act no particular number of witnesses is required for the proof of any fact. This general rule enshrines the well recognised maxim "Evidence has to be weighed and not counted." Their Lordships of the Supreme Court in Thevar v. State of Madras (1), propounded that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking oral testimony may be classified into three categories - (i) wholly reliable (ii) wholly unreliable (iii) neither wholly reliable nor wholly unreliable. In the first category of proof the court should have no difficulty in arriving to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corrobora-tion in material particulars by reliable testimony direct or circumstantial.
16. Keeping in view these principles we now proceed to analyse the submissions advanced before us.
17. From the cautious scrutiny of the material on record, the fact situation that emerges may be deduced thus-
(i) Some unknown person informed Police Station Bani Park over telephone that in a quarrel near Polo Victory Cinema one person received knife Injury. This intimation was recorded in Rojnamcha (Ex.P.2) dated December 15, 1988 at 8.55 p.m. and SHO Het Ram alongwith police party proceeded to the spot in a jeep.
(ii) Report (Ex.P.3) was written by Birbal in his own handwriting. In the endorsement made on the report by SHO Het Ram it was mentioned that Birbal Singh handed over the said report to Het Ram is the SMS Hospital and after registering a case under Section 302/34 IPC it was forwarded to Police Station Bani Park through constable Khem Chand. SHO Het Ram however did not mention the time of submitting the report to him. Case No.449/88 under Section 302/34 IPC was registered at Police Station Bani Park on December 15, 1988 at 10.45 p.m.
(iii) FIR (Ex.P.17) was sent to Ilaqa Magistrate on December 16, 1988 at 4.25 p.m.
(iv) Report No. 1144 was entered in Rojnamcha dated December 15, 1988 at 11.50 p.m. (Ex.D.2) on the basis of telephonic message of Nishi Kant compounder of the Medical Jurist that at 9 p.m. Constable No. 4211 Sher Singh and Pradeep Singh Beniwal s/o Birbal Singh Beniwal resident of E25 Durga Marg Bani Park Jaipur came to the Emergency ward with injured Jagdish Chaudhary s/o Sardul Chaudhri who was declared dead. Deed body of Jagdish was lying in a mortuary. Police officer for necessary action was required to be sent. It was also stated in the report that case No. 449/88 was already registered and the SHO was busy with the investigation.
(v) Birbal Singh (PW. 3) although stated that while taking Jagdish to the Hospital, his clothes were stained with the blood but the police did not seize the clothes.
18. In Dhananjoy Chatterjee v. State of W.B. (2), their Lordships of the Supreme Court indicated that the vague and indefinite information given on the telephone which made the investigating agency only to rush to the scene of occurrence could not be treated as a first information report under Section 154 Cr.P.C. In yet another case of Ram Singh Bavaji Jadeja v. State of Gujrat (3), their Lordships observed that any telephone information about commission of a cognizable offence irrespective of the nature and details of such information is not an FIR but it shall be deemed to be a statement made by a person to the police officer in the course of investigation covered by Section 162 Cr.P.C. In the case on hand report (Ex.P.2) entered in the Rojnamcha at 8.55 p.m. on December 15, 1988 was cryptic in nature. The police was only apprised with the situation that near Polo Victory Cinema one person was stabbed. We therefore find no merit in the submission of the learned counsel for the appellant that report Ex.P.2 was the FIR.
19. Mr. A.K. Gupta, learned counsel strenuously urged to discard the testimony of Birbal Singh in view of report of Rojnamcha (Ex.D.2) according to which Nishi Kant Compounder of the Medical Jurist gave telephonic message that constable Sher Singh and Pradeep Singh Beniwal came to the Emergency Ward with Jagdish who was declared dead and dead body of Jagdish was lying in mortuary. Learned counsel on that basis canvassed that Birbal Singh did not take Jagdish to the Hospital but Pradeep Beniwal and constable Sher Singh were the actual person who took Jagdish first to Emergency Ward and then to Mortuary. Had Birbal Singh been there with the dead body, Nishi Kant compounder would also have named him in the telephonic message. In order to appreciate the contention of learned counsel we have closely scrutinised Rojnamcha (Ex.D.2). As already noticed Rojnamcha Ex.D.2 contains Reports No. 1144 entered at 11.50 P.M. on December 15, 1988. After the information communicated on telephone by Nishi Kant compounder of the office of Medical Jurist it was also stated in the Rojnamcha that case No. 449/88 was already registered and the SHO was busy with the investigation. It thus appears that after FIR (Ex.P.I7) bearing No. 449/88 at 10.45 was already registered the telephonic message was received at 11.50 p.m. and that was entered into Rojnamcha (Ex.D.2). As already stated written report Ex.P.3 was submitted by Birbal Singh to SHO Het Ram at the SMS Hospital which is evident from the endorsement made by Het Ram on the report itself. We have closely scanned the evidence of Birbal Singh and we find that even after searching cross examination no dent could be caused in his testimony which goes to the root of the matter so as to demolish the entire prosecution story. Evidence of constable Sher Singh (PW.1) may be relied upon to the extent that he and Birbal Singh took Jagdish in an auto rickshaw to the Hospital. If Compounder Nishi Kant did not name Birbal Singh in his telephonic message it does not mean that Birbal Singh did not go to the Hospital. Undoubtedly there are discrepancies in the testimony of Birbal Singh but in our opinion they do not shake the basic version of the prosecution case. We find the presence of Birbal Singh at the time of incident quite natural. The appellant came to his travel agency where his nephew Jagdish was sitting and on refusing to meet the demand of money knife blows were struck on the person of Jagdish by the appellant and his companions.
20. In Appabhai v. State of Gujrat (4), their Lordships of the Supreme Court indicated thus-
"The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses now a days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
21. The case of Sukhwant Singh v. State of Punjab (5), relied on by the learned counsel for the appellant is distinguishable. In that case name of Gurmej Singh, the real elder brother of the deceased was not mentioned by the Doctor in Rukka sent to the police station immediately after the arrival of the dead body in the hospital. Hon'ble Supreme Court therefore found that Gurmej Singh was not present at the place of occurrence at the time when the deceased was shot at, as in the normal course of human conduct the real brother of the deceased would have accompanied the injured to the hospital. Whereas in the case on hand Birbal Singh took the deceased who was his nephew to the hospital in autorrckshaw and handed over written report in the hospital itself. If compounder of the office of the Medical Jurist after one hour of the registration of the FIR lodged by Birbal Singh, out of anxiety informed the police station that dead body of Jagdish brought by Pradeep requested to send a police officer, presence of Birbal Singh on this pretext at the time of occurrence, can not be ruled out. It is not unlikely that after Birbal Singh left the hospital keeping the dead body under the supervision of constable Sher Singh, Pradeep Beniwal would have reached the hospital and then Sher Singh and Pradeep Beniwal would have shifted the dead body to mortuary.
22. It is evident from the material on record that FIR was lodged promptly and investigation forthwith started. Statements of witnesses Birbal Singh and Sher Singh Under Section 161 Cr.P.C. were recorded on December 15, 1988 and the FIR reached to the court of Ilaqa Magistrate on December 16, 1988 at 4.25 p.m. Thus we do not find any delay in despatch of the FIR. In State of Karnataka v. Moin Patel (6), Hon'ble Supreme Court indicated that if in a case it is found that FIR was recorded without delay and the investigation started on that FIR then however improper or objectionable the delayed receipt of the report by the Magistrate is concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable.
23. We find ourselves unable to agree with the submissions of the learned counsel that the FIR of the instant case was a fabricated document. The FIR was entered into Rojnamcha and if the number Rojnamcha was not incorporated in the FIR it cannot be held that it was brought into existence long after the occurrence. In the facts and circumstances of the case we do not find the presence of Birbal Singh at the place of incident doubtful on the ground that his blood stained clothes were not seized by the I.O. Het Ram. Birbal Singh categorically stated that while Jagdish was being taken by him in autorickshaw his clothes had become blood stained and he had shown those clothes to I.O. Het Ram. No question was asked in the cross examination from Het Ram as to whether Birbal Singh had shown his blood stained clothes to him and why did he not seize those clothes. In State of Rajasthan v. Shri Teja Singh (7), presence of witness Amrao was found doubtful on the ground that her blood stained clothes were not seized by the I.O., coupled with the evidence of defence witness Ram Pratap who had stated that when he was told about the incident by Amrao and other two witnesses they did not mention the name of the accused persons to him. But in the case on hand Birbal Singh not only took the deceased to the hospital but he promptly lodged the report naming the appellant. Therefore if the I.O. was not vigilant in seizing the blood stained clothes, we can not discard the testimony of a trustworthy witness on that count. After cautious scrutiny of the evidence of Birbal Singh we are of the view that Birbal Singh can be placed in the category of wholly reliable witness. We have weighed his evidence carefully from the point of view of trustworthiness and we find it sufficient to convict the appellant as it is found to be above suspicion of interestedness, incompetence or subornation. The formidable weapon used by the appellant, the savage manner of its execution, the helpless state of the urarmed victim, all viewed against the illegal demand of money for liquor irresistibly lead to the conclusion that the injuries caused by the appellant to the deceased were intentionally inflicted and the appellant was rightly convicted by the learned trial Court.
24. For the reasons mentioned above we find no merit in the appeal, it is accordingly dismissed and the impugned judgment of conviction and sentence is maintained.