Rajasthan High Court - Jaipur
Chimman Singh Urf Choon Singh vs State Of Rajasthan Through P P on 4 July, 2017
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Criminal Appeal No. 67 / 2013
Chimman Singh @ Choon Singh S/o Chhog Singh Rawat, R/o
Rampura Khodmal, P.S. Todgarh, Distt. Ajmer (Raj.) (Presently
confined in Central Jail, Ajmer)
----Accused-Appellant
Versus
State Of Rajasthan through P P
----Respondent
_____________________________________________________
For Appellant(s) : Shri Vinay Pal Yadav
For Respondent(s) : Shri Sudesh Saini, P.P. for State.
_____________________________________________________
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE KAILASH CHANDRA SHARMA
Order
04/07/2017
(PER HON'BLE MOHAMMAD RAFIQ, J.)
REPORTABLE
This appeal has been filed by Chimman Singh @ Choon
Singh against the judgement of his conviction dated 09.01.2013
passed by the Additional Sessions Judge No.3, Beawar, District
Ajmer in Sessions Case No.126/2012 (14/2010). The accused-
appellant by the aforesaid judgement has been convicted for
offence u/s.302 IPC and sentenced to life imprisonment with fine
of Rs.10,000, in default of which, he was to further undergo
simple imprisonment of one year. He was also convicted for
offence u/s.201 IPC with rigorous imprisonment of five years with
fine of Rs.5,000, in default of which he was to further undergo
simple imprisonment of six months. Both the sentences were
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ordered to run concurrently.
The facts of the case are that a complaint was submitted by
Nathu Singh S/o Bhoja Singh to SHO Police Station Todgarh,
District Ajmer alleging therein that his elder brother Jalam Singh
aged about 55 years was working as a labourer for loading the
stones in the camel cart along with Chimman Singh. On 27.2.2010
at about 8-9 pm, they started together from Gafa Imli Ka Badiya
for going to Rampura. Udai Singh, Narayan Singh and Puran Singh
saw them going together there. Some altercation took place
between them near Kachchi Road `Kalinjari Baan'. Chimman Singh
subjected Jalam Singh to beating, dragged him towards the drain,
hit him by stone and thereby killed him. He then collected dead
and dried wood, covered his dead body therewith and lit fire, as a
result of which, the dead body was half burnt. When Jalam Singh
did not return back to home on 28.2.2010, despite the fact that it
was festival of `Holi', his wife disclosed this fact to villagers. The
villagers expressed doubt over Chimman Singh and started the
search of Jalam Singh. When villagers made enquiry from
Chimman Singh, he asked them to send two persons with him so
that he could tell them the truth. Thereupon, Bhoja Singh and
Narayan Singh were sent with him, whom Chimman Singh told
that he has murdered Jalam Singh and had thrown his dead body
in half burnt condition in `Kalinjari Baan'. He thereafter, on the
pretext of answering the call of nature and taking advantage of
darkness fled away therefrom. These persons tried to follow him,
but he could not be caught. The villagers then came to `Kalinjari
Baan' for search of dead body of Jalam Singh. The half burnt dead
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body was found therein lying with face upside down, which was
blackish. The palm of the right hand was not burnt, therefore he
was identified by two fingers which had cut and by the copper
ring, which he was wearing. It was therefore alleged that
Chimman Singh had murdered Jalam Singh by subjecting him to
severe beatings, thereafter dragged him to a `nala' where he hit
his head by a stone, thereby committed his murder and then tried
to destroy the evidence by putting his body to fire. Action be
therefore taken against the culprit.
The Police on the basis of written report lodged regular FIR
no.15/2010 for offence u/s.302 and 201 IPC and started
investigation. Eventually, the charge sheet was filed against the
accused-appellant and charges were also framed against him for
the aforesaid offences. The accused denied the charges and
claimed to be tried. The prosecution examined 18 witnesses and
exhibited 29 documents. The defence though examined 1 witness,
but did not exhibit any document. The trial court after conclusion
of the trial, convicted and sentenced the accused-appellant in the
manner as stated. Hence this appeal.
Shri Vinay Pal Yadav, learned counsel for the accused-
appellant has argued that there being no eye witness to the
incident, the entire case of the prosecution hinges on the
circumstantial evidence. The circumstances taken to have been
proved by the learned trial court against the accused is that of last
seen and that of the extra judicial confession, which have not at
all been proved. The FIR in the present case is ante dated because
the substantial part of the investigation had already been
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undertaken by the police before the lodgement of FIR namely;
seizure of the dead body, preparation of the inquest report,
seizure of hair and blood. Learned counsel for the accused-
appellant has contended that the contents of the FIR are not
complete. Even preparation of Ex.P2 to 7 was made before
registration of the FIR, therefore, they cannot be relied to convict
the accused-appellant for the alleged offence. The FIR was sent to
the Ilaka Magistrate with delay. Even though incident has taken
place on 27.2.2010, the FIR was lodged on 1.3.2010 and was
presented before the Magistrate at 12.00 pm in the noon on
5.3.2010, thus with delay of four days. The prosecution has failed
to prove the motive as to why the accused would take extreme
step of committing murder of his fellow worker.
Learned counsel argued that the evidence of last seen
against the accused is sought to be proved by testimony of Udai
Singh (PW10), Narayan Singh S/o Kesar Singh (PW11) and Ham
Singh (PW16). None of these witnesses has inspired confidence.
Besides, the fact is that their evidence is incomplete and
inappropriate. The evidence of extra judicial confession against the
accused-appellant is also a weak evidence and cannot be relied to
sustain his conviction. Evidence of extra-judicial confession is
sought to be proved by production of Narayan Singh (PW6) and
Bhoj Raj Singh (PW8). Learned counsel submitted that Nathu
Singh (PW1), the complainant has stated that he did not tell the
police on 27.2.2010 that his brother and accused met him and he
talked to them. He further stated that his `bhabhi' went to the
house of the accused in search of his brother in the morning of
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28.2.2010 and the accused had then returned axe of the deceased
stating that the deceased had been left in Gafa Imli Ka Badiya.
This is a substantial improvement as no such fact has been stated
in the written report (Ex.P1). In fact, Nathu Singh has stated that
he learnt on 28.2.2010 that his brother was missing, but he did
not inform the police about the same. The police for the first time
was informed on 1st March, 2010. While in examination-in-chief,
he has stated that leather shoes of the accused were recovered
from the place of incident, but in cross examination he admitted
that when accused and deceased were going for work on
27.02.2010, the accused was wearing `chappal`. There is thus
apparent contradictions in his testimony at two stages. Nathu
Singh (PW1) also admitted that written report (Ex.P1) was written
by Chhatar Singh himself and all the details therein were filled in
by Chattar Singh. He neither asked anything from this witness and
this witness also did not inform anything to him. In cross
examination, he further admitted that he cannot identify the site
plan (Ex.P4), being the place of incident.
Learned counsel for the accused-appellant has argued that
Jodh Singh (PW2) has not supported the prosecution story and
has been declared hostile. This witness has admitted that he did
not say that accused confessed his guilt. He also admitted that he
was taught by the advocate as to what statement he has to give.
Referring to the statement of Pooran Singh (PW3), learned counsel
argued that he is a witness of hearsay because he has not
witnessed anything. He stated that accused told villagers that he
left the deceased in Gafa Imli Ka Badiya. They searched for the
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deceased everywhere but he was not found. Accused Chimman
Singh then informed Narayan Singh and Bhojraj Singh that he has
murdered Jalam Singh and then he fled away. In cross
examination, he has stated that Chimman Singh stated so, on
being pressurised by the villagers.
Learned counsel for the accused-appellant further submitted
that Narayan Singh (PW4) S/o Koop Singh admitted that he did
not tell the police that accused admitted his guilt before him that
he committed murder of Jalam Singh at the time of preparation of
inquest report (Ex.P2). He rather stated that accused ran away
from there due to the fear of villagers. The police had arrested
accused-appellant Chimman Singh 3-4 days thereafter. Before
this, accused-appellant Chimman Singh never told anybody that
he committed murder of Jalam Singh. Devi Lal (PW5), the
attesting witness of seizure memo of the blood smeared soil,
simple soil and the blood smeared stone and hair vide Ex.P5,
seizure memo of two slippers, one muffler vide Ex.P6 has in cross
examination stated that his signatures thereupon were obtained
by the police on plane paper. Narayan Singh S/o Gheesa Singh
(PW6), who has been produced as witness of extra judicial
confession by the police, has also not supported the case of the
prosecution and was declared hostile. He denied the fact that
accused confessed his guilt before him.
Devi (PW7), wife of the deceased categorically stated that
Chimman Singh also accompanied villagers in search of her
husband and then all villagers assembled in the morning of the
following day in the house of Pooran Singh. They asked Chimman
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Singh that he should disclose the true story and thereafter
Chimman Singh told about the incident to two persons namely;
Narayan Singh and Bhojraj Singh, who were sent with him by the
villagers. Apparently by statement of this witness, it appears that
Chimman Singh was pressurised and forced into making an
unwilling confessional statement.
Bhojraj Singh (PW8) although stated that when villagers
enquired from Chimman Singh, he promised to disclose the true
story to two persons. He asked villagers to send two persons with
him, whom he would disclose the true incident and then the
accused fled away. On his information, the half burnt body of the
deceased was found in the `Kalijari Nala' wherefrom the
`chappal', mufler of the deceased and the shoes of accused-
appellant Chimman Singh were found. In cross examination, this
witness has clearly admitted that when the police reached the
place of occurrence, he did not inform that Chimman Singh has
confessed having committed murder of Jalam Singh. He informed
this fact after three days when the police came to his house after
the incident. On the earlier occasion, he did not inform the police
about this confessional statement because he was not found in the
fit state of mind. The villagers aforesaid doubted over Chimman
Singh because they used to work together.
Narayan Singh S/o Kesar Singh (PW11) admitted that
deceased and accused went separately in different directions and
both of them were wearing `chappals'. Learned counsel, therefore,
argued that recovery of shoes at the place of incident allegedly of
the accused is not genuine. Ham Singh (PW16) in examination in
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chief stated that on 27th one day before the `Holi' festival, he saw
accused-appellant Chamman Singh and deceased Jalam Singh
together at about 8.00 pm, but in cross examination, he admitted
that he did not see them going together. He saw them going
together only 4-5 days before the `Holi' and not thereafter. Sohan
Ram Saini (PW17), the Investigating Officer admitted in cross
examination that he seized the `jutis'/shoes on 1.3.2010 and
thereafter the same remained stored in malakhana. He never
made the accused to wear the `jutis' to ascertain whether it was
of his size. Learned counsel for the accused-appellant submitted
that earlier information, which police received was of 1 st March,
2010 when the entry was made in the rojnamcha (Ex.P24A) on
1.3.2010. The police should have then and there come into action
and started investigation. On facts, this was the information about
a cognizable offence. FSL report (Ex.P29) does not prove anything
although according to aforesaid report, a pant and shirt of the
accused was found positive for the presence of human blood. But
in the absence of blood grouping, it could not be ascertained as to
whom it belongs. Learned counsel submitted that written report
was scribed by Pooran Singh, Ward Panch, who has not been
produced as a witness. Learned counsel in support of his
arguments has relied on judgments of the Supreme Court in Kala
@ Chandrakala vs. State through Inspector of Police-2016 Cr.L.R.
(SC) 949, Sahadevan & Anr. vs. State of Tamilnadu-(2012) 6 SCC
403, Dwarkadas Gehanmal vs. State of Gujarat-1999 (1) UJ 263
(SC) and judgement of this Court in Mala Ram vs. State-WLN (UC)
1934 page 57.
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Per contra, Shri Sudesh Saini, learned Public Prosecutor
opposed the appeal and argued that guilt of the accused-appellant has been fully proved by required standard of proof beyond reasonable doubt. The entire incident was in the exclusive knowledge of the accused and it was he, who was lastly seen in the occupation of the deceased Jalam Singh. The accused owe the explanation as to in which circumstances, he parted company with deceased and what happened to him. The accused had the specific knowledge of the said fact and therefore by virtue of Section 106 of the Indian Evidence Act, 1972, a presumption is liable to be raised against him. In fact, only after the accused disclosed the proximate location of the incident that the villagers could find out and recover the dead body. The subsequent conduct of the accused was admissible in evidence by virtue of Section 8 of the Indian Evidence Act, 1872. The evidence of last seen against the accused on 27.2.2010 has also proved his role in the crime. Accused and the deceased left together from there village Rampura for their work place at Gafa Imli Ka Badiya. They left together is evident from the statement of Nathu Singh (PW1), Devi (PW7) and Pooran Singh (PW3), employee of the deceased as well as appellant. Prior to death of deceased, the deceased was last seen in the company of the accused, the fact which has been proved by Pooran Singh (PW3). This fact is also corroborated by statement of Nathu Singh (PW1). The fact that deceased was lastly seen in the company of accused finds credence from the fact that the whereabouts of dead body of the deceased was known to none other than the accused-appellant. It is only when he gave (10 of 22) [CRLA-67/2013] clue about the dead body, that it could be searched in an isolated place in a jungle of `kalinjari nala'. Had the accused not informed this fact to Bhojraj Singh and Narayan Singh, the other villagers would not have come to know about this and possibly it would have taken much longer to locate the dead body of Jalam Singh.
Learned Public Prosecutor argued that as per Nathu Singh (PW1) already about 30-40 villagers had made a search in a vast area in and around the village before reaching the place Gafa Imli Ka Badiya. It was only on account of disclosure made by the accused that the exact location of the dead body was known and it was found in isolated place. Police was thereafter informed about 7.00 am, which was written in rojnamcha rapat (Ex.P24A). Not only Nathu Singh (PW1), but independent witnesses Bhojraj Singh and Narayan Singh have proved the fact that when villagers enquired from the accused-appellant about Jalam Singh, he asked them to nominate two persons, who may accompany him (accused) and that he shall inform only them as to what he has done to Jalam Singh. Learned Public Prosecutor, therefore, submitted that provisions of Section 106 of the Indian Evidence Act are clearly attracted in this situation because circumstances, which were in exclusive knowledge of the accused could have been explained by him alone. The post incident conduct of the accused is also relevant as per Section 8 of the Indian Evidence Act. Learned Public Prosecutor in this connection referred to illustration
(e) below Section 8 in support of his arguments.
It is submitted that when the villagers initially asked the accused, he tried to mislead them by giving different answers.
(11 of 22) [CRLA-67/2013] Udai Singh (PW10) and Narayan Singh (PW11) have stated that accused and deceased went towards their village at about 8-9 pm, but their testimony that they moved in different direction, cannot be believed as they were from the same village and had to pass through the common route of `kalinjari baan' to reach to their village. Despite so many incriminating circumstances, the accused could not give an explanation thereabout being put to him under Section 313 Cr.P.C. Even from the postmortem report (Ex.P20) dated 1.3.2010, the time since death was indicated to be between 2-3 days, which approximately was the time when the deceased was lastly seen in the company of the accused-appellant. Learned Public Prosecutor relied on the judgement of Supreme Court in Bodh Raj @ Bodha & Ors. Vs. State of Jammu & Kashmir-(2002) 8 SCC 45 to buttress his argument that time gap between the point of time when the accused and deceased were seen lastly alive is so small that the possibility of any person other than the accused being the author of crime becomes impossible.
Learned Public Prosecutor also submitted that the evidence of extra judicial confession against the accused is also proved against the accused by Bhojraj Singh (PW8) and Narayan Singh (PW6) in whose presence the accused admittedly confessed that he not only murdered the deceased but also burnt his dead body and threw him in the `Kalinjari Nala'. Although Narayan Singh (PW6) has been declared hostile, but Bhojraj Singh stood firm to his ground. Their testimony is corroborated by Nathu Singh (PW1), Pooran Singh (PW3) and Narayan Singh (PW4), who remained consistent on this fact. Reliance in support of this (12 of 22) [CRLA-67/2013] argument is placed on the judgement of Supreme Court in Sahadevan & Anr. Vs. State of Tamilnadu (2012) 6 SCC 403.
Learned Public Prosecutor submitted that guilty mind of the accused is also evident from the fact that when the wife of the deceased Devi (PW7) went to enquire from him about the deceased on the very next morning, he told her that he left the deceased in Gafa Imli Ka Badiya, but at the same time, he handed over the `kulhari' of the deceased to her. She has remained consistent with this version, which she has originally made to the police. Nathu Singh (PW1) has also stated that accused gave `kulhari' of his brother (deceased) to his `bhabhi' (PW7). Sohan Ram Saini (PW17), the Investigating Officer has also corroborated this fact that Devi, wife of the deceased told him that `kulhari' of the deceased was given to her by the accused. Even if Investigating Officer has omitted to seize `kulhari', the benefit of this lacuna cannot be given to the accused. Reliance in this connection is placed on the judgement of Allahabad High Court in State of U.P. vs. Swami Deen S/o Chhedi Lal & Ors., Criminal Appeal No.2498/2000 decided on 11.11.2005. Further the recovery memo of blood stained clothes (Ex.P9) has been proved by the attesting witness Narayan Singh (PW4) and Jodh Singh (PW2). Although the clothes have been washed by the accused, yet blood on shirt and pant was visible. As per FSL report (Ex.P29) also, blood was detected on his shirt. Learned Public Prosecutor has also relied on the judgement of Supreme Court in Kirendra Sarkar & Ors. Vs. State of Assam-AIR 2009 SC 2513 to argue that FIR cannot be an encyclopedia of (13 of 22) [CRLA-67/2013] the entire events. Reliance is also placed on the judgement of Supreme Court in Satish Narayan Sawant vs. State of Goa- (2011) 2 SCC (Crl.) 110 and State of M.P. vs. Laakhan @ Lakhan-(2009) 14 SCC 433. It is therefore prayed that the appeal be dismissed.
We have given our anxious consideration to the rival submissions and perused the material on record.
The earliest version, which the informant Nathu Singh (PW1) has given in his report is the one and which has been maintained by the prosecution throughout, is that the deceased was lastly seen alive with the accused when both went together at about 8-9 pm on 27.2.2010 towards Gafa Imli Ki Badiya from their village Rampura where they used to work by loading the stones on the camel cart. Udai Singh (PW10), Narayan Singh (PW11) and Pooran Singh (PW3) had seen them going together. It was alleged in the written report that Chimman Singh subjected Jalam Singh to severe beatings on kachcha road near `kalinjari nala' and dragged him towards the `nala' where by hitting his head with stone, he put him to death. Then he collected the dried wood from the jungle and put the dead body to fire. The doubt arose when deceased did not return back to his house on 27.2.2010 and 28.2.2010, even though it was a day of festival of `holi'. When his wife went to the house of the deceased on the following morning, the deceased gave to her the `kulhari' of her husband and informed that he has stayed back at Gafa Imli Ka Badiya and would return back soon on his own. She disclosed this fact to her brother-in-law i.e. younger (14 of 22) [CRLA-67/2013] brother of his husband Nathu Singh. Thereafter, Nathu enquired from the accused-appellant about his brother Jalam Singh. To him also, the accused did not give any satisfactory explanation and told that deceased Jalam Singh has stayed back at Gafa Imli Ka Badiya. They were both working with Pooran Singh (PW3), who was their employer and resident of Gafa Imli Ka Badiya. Nathu Singh along with many other villagers went to the house of Pooran Singh. Accused-appellant Chimman Singh also accompanied them. They searched for the deceased during whole night, then they assembled in the house of Pooran Singh. They enquired from Chimman Singh as to what is the actual story. Chimman Singh then told them that they should send two persons with him and he would disclose them what he has done to Jalam Singh. The villagers nominated Narayan Singh and Bhojraj Singh to accompany Chimman Singh. Chimman Singh told them the entire story and also the place where he had concealed the dead body of Jalam Singh in half burnt condition.
Nathu Singh (PW1) has proved the sequence in which the entire events took place and also the fact that when villagers persisted in making enquiry from the accused-appellant Chimman Singh, he lastly said that they should send two persons with him and that he shall disclose to them as to what he has done to Jalam Singh. The villagers nominated Narayan Singh and Bhojraj Singh to accompany him, to whom he disclosed that he has murdered Jalam Singh and concealed his dead body in `kalinjari nala' and then also burnt his dead body. Nathu Singh has stated that previous night all the villagers had (15 of 22) [CRLA-67/2013] made search for Jalam Singh in and around the jungle, but they could not find him. It is only after the accused disclosed the exact location of the dead body that villagers went to `kalinjari nala' where they found the dead body in half burnt condition. The chappal and muffler of the deceased were also lying there. There were signs of dragging of the dead body, which was lying in reverse position. Its right hand was not fully burnt. He could identify his brother because he had two cuts in his fingers and was wearing a copper ring in one finger. It is only thereafter that the written report (Ex.P1) was given to the police. Pooran Singh (PW3) has stated that he was in his house at village Gafa Imli Ka Badiya. When the villagers of Rampura had gone to jungle in search of Jalam Singh and came out to his house, he told them that deceased was working with Chimman Singh and he must be knowing where he was. The villagers then continued to make queries from accused Chimman Singh regarding whereabouts of Jalam Singh. Finally, Chimman Singh said that they should send two persons with him and then he disclosed to them that he has murdered Jalam Singh and thereafter he ran away from there. This witness in cross examination stated that there were about 30-35 persons, who had assembled and went in search of deceased.
Narayan Singh (PW4) has also corroborated the statement of Pooran Singh (PW3) that Chimman Singh asked villagers to send two persons with him whom he would disclose as to what happened to Jalam Singh. The villagers send Bhojraj and Narayan Singh with him. They went 10-15 feet away from the (16 of 22) [CRLA-67/2013] rest of the villagers and there Chimman Singh disclosed them the actual story as to how and where he murdered Jalam Singh and where his dead body was lying. But taking advantage of darkness, he on the pretext of low illumination fled away from there. In cross examination, though this witness has submitted that he did not at the time of panchanama get this fact incorporated therein and also that Chimman Singh fled away from there due to the fear of villagers but when they informed the police that he has murdered Jalam Singh, the police arrested him in 3-4 days. Udai Singh (PW10) and Narayan Singh S/o Kesar Singh (PW11) have also stated that they saw the deceased and accused-appellant returning back to their house after their work but not much significance can be attached to later part of their statement that they went in different directions. In view of the statement of several other witnesses namely; Nathu Singh (PW1), Devi (PW7) and Ham Singh (PW16) including Pooran Singh (PW3) that they were seen going together, the evidence of last seen against the accused-appellant has to be accepted as proved considering also the fact that when on the previous night of 28 th in the jungle adjoining the village Rampura upto Gafa Imli Ka Badiya, Chimman Singh accompanied them and at the resistance of Pooran Singh when all the villagers repeatedly enquired from him, he finally agreed to disclose the correct story to only two villagers, who were sent with them namely; Narayan Singh and Bhojraj Singh. He disclosed to them the manner in which he put the deceased (17 of 22) [CRLA-67/2013] Jalam Singh to death and the location where he concealed the dead body of Jalam Singh in half burnt condition.
Narayan Singh (PW6) of course, has turned hostile, but Bhojraj Singh as PW8 has supported the case of the prosecution on this aspect. The minor variations and contradictions in the statement of prosecution notwithstanding, the fact that the deceased was lastly seen with the accused and the extra judicial confession of the accused is proved beyond reasonable doubt, which eventually lead to the discovery of the dead body of Jalam Singh. Significantly, large number of villagers despite having searched in the jungle adjoining the village Rampura, were unable to locate the dead body but it was traced out immediately after disclosure made by the accused. As held by the Supreme Court in Bodh Raj @ Bodha, supra, "the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible." In the present case, the accused was seen in the company of the deceased late in the evening of 27.02.2010 and thereafter accused alone returned back to his village. When Devi, wife of the deceased Jalam Singh went to his house to enquire about her husband, accused told her that he has stayed back in Gafa Imli Ka Badiya and would come on his own, but at this time, accused handed over the axe/`kulhari' of the deceased to his wife. Mere fact that this `kulhari' was not received by the Investigating Officer, would not be a lacuna so (18 of 22) [CRLA-67/2013] fatal in the prosecution case so as to discard the entire evidence. Besides, that 'kulhari' was not the weapon of offence. Reference in this connection is made to judgement of the Supreme Court in State of U.P. vs. Swami Deen, supra, in which it was held in para 19 as under:
"19. Any defect/fault in investigation either could not be a ground for acquittal. The entire situation and scenario are required to be viewed as a whole. The court has to be careful in examining the evidence so as not to acquit those involved in ghastly crimes. The Apex Court has ruled in a number of cases that merely because investigation was faulty, should not be a ground for acquittal by ignoring the convincing evidence of eyewitnesses proving the guilt of all or some of the accused involved in the commission of a crime. It is the duty of the court to separate the chaff from the grain so as to act on acceptable truth while rejecting the rest. The short-cut approach to back acquittal by hair- splitting of the evidence cannot be approved as has been done by the trial court in this case to grant acquittal to the accused Indrapal by ignoring clinching, satisfactory and convincing evidence against: him, We would indicate the same in succeeding discussion."
Moreover, the blood stained clothes, which the accused was wearing at the time of incident has been proved by Narayan Singh and Bhojraj Singh vide recovery memo Ex.P9. In the recovery memo (Ex.P9), it is stated that these clothes contained blood stains, which was apparently visible, but in the FSL report (Ex.P29), blood was detected on the shirt of the accused. This version was put to the accused in his examination under Section (19 of 22) [CRLA-67/2013] 313 Cr.P.C, which he failed to explain. Inference therefore can be drawn from the proved circumstances that accused took up a fight with the deceased on 27.2.2009, which ultimately led to his death at his hands.
Contention that the various particulars were not incorporated in the FIR therefore conviction of the accused- appellant on that basis is not justified, is liable to be rejected because as held by the Supreme Court in Kirender Sarkar, supra, the law is fairly well settled that FIR is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events. Preparation of Ex.P2 to 7 before registration of the FIR may not be said to be so specific lacuna so as to discard the entire prosecution case based on the evidence of the last seen and extra judicial confession. We may in this connection refer to the observations made by the Supreme Court in para 13 of the judgement in Satish Narayan Sawant, supra, which read as under:
"13. The issue with regard to the initiation of the investigation without recording the FIR was succinctly addressed by this Court in the case of State of U.P. v. Bhagwant Kishore Joshi, (1964) 3 SCR 71, observed as follows:
"17. What is investigation is not defined in the Code of Criminal Procedure; but in H.N. Rishbud and Inder Singh v. State of Delhi1, this Court has described, the procedure, for investigation as follows:
"Thus, under the Code investigation consists generally of the following steps, (1) Proceeding to (20 of 22) [CRLA-67/2013] the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of
(a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173." This Court, however, has not said that if a police officer takes merely one or two of the steps indicated by it, what he has done must necessarily be regarded as investigation. Investigation, in substance, means collection of evidence relating to the commission of the offence. The Investigating Officer is, for this purpose, entitled to question persons who, in this opinion, are able to throw light on the offence which has been committed and is likewise entitled to question the suspect and is entitled to reduce the statements of persons questioned by him to writing."
As regards the delay of sending FIR to the Magistrate in the present case, we find that though of course there is some delay in receipt of the FIR by the Magistrate, but that cannot be a factor to overlook the evidence otherwise available in this regard. Reference in this connection is made to judgement of the Supreme Court in State of M.P. vs. Laakhan @ Lakhan, supra.
(21 of 22) [CRLA-67/2013] The cited case of Dwarkadas Gehanmal, supra where the solitary evidence of prosecution did not disclose about the extra judicial confession for as long as five days, is distinguishable and cannot be applied to the facts of the present case. In the present case, the extra judicial confession was made by the accused to two persons namely; Bhojraj Singh and Narayan Singh, who were nominated by the entire group of about 40 villagers and after this, he immediately fled away. But then these two persons soon thereafter disclosed about the extra judicial confession of the accused to other villagers, who have corroborated this as a fact in their testimony for the aforesaid purpose. It is for this reason that another judgement of the Supreme Court in Sahadevan & Anr., supra cannot of any assistance to the accused-appellant. What the Supreme Court in that case has held is that court must ensure that the extra judicial confession inspires confidence and is corroborated by other prosecution evidence. In the present case, the extra judicial confession does inspire confidence and is corroborated from other evidence, therefore, it cannot be said that the extra judicial confession suffers from material infirmities and does not appeal.
In view of above discussion, the impugned judgement dated 09.01.2013 cannot be said to suffer from any illegality. The finding of conviction recorded by the learned trial court is just and based on cogent reasons. The individual circumstances proved by cogent evidence form the chain of circumstances against the accused-appellant so complete as to point towards (22 of 22) [CRLA-67/2013] his guilt to rule out every single hypothesis, that may be compatible with his innocence.
The appeal therefore fails and is hereby dismissed. (KAILASH CHANDRA SHARMA), J. (MOHAMMAD RAFIQ) J. RS/