Rajasthan High Court - Jaipur
Dhanpal vs State on 17 December, 2009
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR
J U D G M E N T
1.Hariya son of Prahlad Vs. State of Rajasthan through
Public Prosecutor
D.B.Criminal Appeal No.455/2003
2. Dhanpal Vs. State of Rajasthan through
son of Kishori lal Public Prosecutor
D.B.Criminal Appeal No.226/2003
D.B. Criminal Appeals under Section 374 of the Code of Criminal Procedure against the judgment & order dated 21.1.2003 passed by the Additional Sessions Judge (Fast Track), No.1 Kota in Sessions Case No. 89/2001.
Date of Judgment 17th December, 2009
PRESENT
HON'BLE MR. JUSTICE DALIP SINGH
HON'BLE MR. JUSTICE K.S. CHAUDHARI
Mr.Biri Singh Sinsinwar ) for accused-appellant
Mr.Harendra Singh Sinsinwar ) Hariya
Mr.Rajesh Choudhary, )
Mr.Sanjay Mehrishi ) for accused-appellant
Mr.Tarun Jain, ) Dhanpal
Mr.Harsh Kulshretha )
Mr.Timan Singh )
Mr.J.R.Bijarnia Public Prosecutor for the State.
****
REPORTABLE
BY THE COURT: (Per Hon'ble Mr. Chaudhari,J.)
These appeals have been filed against the judgment dated 21.1.2003 passed by Additional Sessions Judge (Fast Track) No.1, Kota in Sessions Case No.89/2001 by which he convicted accused appellant-Hariya under Section 302 IPC and accused-appellant-Dhanpal under Section 302/34 IPC and sentenced each of them to undergo life imprisonment and fine of Rs.1,000/- and in default of payment of fine to undergo six months simple imprisonment and acquitted them under Section 148, 325/149, 324/149, 323 IPC and acquitted other 9 accused-persons under Section 148, 302/149, 325/149, 324/149 and 323 IPC. Both appeals arise out of same judgment hence, decided by common judgment.
Brief facts of the prosecution case are that injured Amarjeet Singh son of Gurudev Singh gave Parcha Bayan Ex.P/37 on 8.10.89 at 11.20 a.m. and alleged that at 10.30 a.m. he alongwith Amarjeet Singh and Hari Singh was coming and as they reached near the house of Roop Chand Dhakad 10 to 15 persons armed with Gandasa, sword came out from the house of Roop Chand and accused-Dhanpal, brother of Roop Chand, inflicted injury with sword (Kripan) on his head and accused-Hariya son of Prahlad Patel stabbed sword in his abdomen and one of the co-accused caused stab injury with Sariya on his right thigh and other assailants inflicted blows with lathi and sariya. He further narrated that injuries with sariya and sword were also inflicted by assailants on the body of his companion Amarjeet Singh and Hari Singh and the tyre of his motorcycle /was cut by kulhari blow and the motorcycle is lying on the spot. On hue and cry his younger brother Ranjeet Singh and servant Babulal came on the spot. Dhanpal and Hariya ran away from the spot presuming them to have died. He further narrated that he has quarrel with both accused-persons in relation to irrigation of the crop in the land.
On this parcha bayan case under Section 147,148,341,307,149 IPC was registered and during investigation injured Amarjeet Singh son of Shri Gurudev Singh died, so offence under Section 302 IPC was added and after completion of investigation challan under Section 148,302,307,326,325,324,323,427,149 IPC and Section 4/25 Arms Act was filed against the accused-appellants and other 9 accused-persons in the Court of Additional Munsiff & Judicial Magistrate No.2 (South), Kota. The case was committed to the Court of Sessions Judge, Kota which was transferred to the Court of Additional Sessions Judge No.1, Kota where charges under Section 148,302/149,325/149,324/149,323 IPC were framed against the appellants and other 9 accused persons to which they denied. During trial the case was transferred to the Court of Additional Sessions Judge No.5, Kota and from there case was transferred to the Court of Additional Sessions Judge (Fast Track) No.1, Kota. Prosecution examined 17 witnesses and after recording statements of accused-persons under Section 313 Cr.P.C. the defence examined one witness. After hearing arguments the accused-appellants were convicted and sentenced as aforesaid and other accused-persons were acquitted.
Heard learned counsel for the parties and perused the record.
Learned counsel for the appellants argued that dying declaration is not a reliable document and further submitted that FIR itself is a suspicious document and prosecution has not submitted any explanation for delay in sending FIR to the Court and further submitted that medical evidence does not corroborate the oral evidence and looking to the contradictions in the statement of witnesses no case is made out against the accused-appellants particularly when other co-accused have been acquitted by the trial Court by disbelieving statement of witnesses and the identification memo and the learned trial Court has committed error in convicting the accused-appellants hence, appeal may be accepted and accused-appellants may be acquitted of the charges levelled against them.
On the other hand Learned Public Prosecutor argued that the dying declaration coupled with oral testimony of the eye witnesses and postmortem report the prosecution has proved the case beyond reasonable doubt against the accused-appellants and the judgment passed by the trial Court is in accordance with law, hence, appeal of the appellants may be dismissed.
Statements of prosecution witnesses coupled with Ex.P/4 Panchayatnama Lash and postmortem report Ex.P/32 and statements of the accused-persons under Section 313 Cr.P.C. and statement of DW1-Babulal it has been proved beyond reasonable doubt that Amarjeet Singh son of Gurudev Singh died on account of injuries inflicted on his body on 8.10.89.
As far as the dying declaration Ex.P/35 is concerned, PW12-Girraj Prasad Gupta, the then Special Judicial Magistrate, has stated that the SHO submitted a requisition Ex.P/33 before him and on that requisition he reached the Hospital and recorded the dying declaration Ex.P/35 of injured- Amarjeet Singh at 12.20 p.m. He further stated that Amarjeet Singh was identified by his brother Ranjeet Singh, who also signed the dying declaration. He also stated that Dr.N.K.Gupta made an endorsement that the injured is fit to give the statement. In his cross examination he admitted that he is not aware what treatment was going on at the time of recording dying declaration. When he reached the Hospital the injured was conscious, but crying on account of pain. Doctor, Nurses and Compounders were on the bed side of the injured. He further stated that he recorded the dying declaration within 10 minutes. PW14-Ranjeet Singh, who is brother of deceased and attesting witness of dying declaration has neither stated that the dying declaration was recorded in his presence by the Magistrate nor proved his signatures on the dying declaration Ex.P/35. Prosecution has also not examined Dr.N.K.Gupta, who has made an endorsement on the top of the dying declaration Ex.P/35 about the fitness of the injured for giving the statement. PW15-Puna Ram SHO has stated that he submitted requisition Ex.P/33 to the Magistrate and got the dying declaration recorded by the Magistrate. He also stated that he also gave a requisition Ex.P/33 to the Doctor to enquire about the condition of the other injured-Amarjeet Singh son of Shri Harbans Singh. He further stated that after recording the dying declaration he reached the police station and on the basis of Parcha Bayan he chalked FIR No.166/89 (Ex.P/2).
It has been held by the Apex Court in the case report in 2007 IX AD (SC) 73 Nallapati Sivaiah Vs. Sub-Divisional Officer,Guntur, A.P. that the Court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition mentally and physically to make such statement. In the aforesaid case casualty medical officer, who was present at the time of recording the dying declaration, was not examined and the evidence of Professor of Forensic Medicine casts considerable doubt as regards the condition of the deceased to make a voluntary and truthful statement and accused was given benefit of doubt and was acquitted under Section 302 IPC. In the present case non examination of Dr.N.K.Gupta casts a doubt on the fitness of deceased-Amarjeet Singh at the time of making the dying declaration and in such circumstances, dying declaration cannot be relied on.
Perusal of the record reveals that there is only the statement of PW12-Girraj Prasad Gupta to corroborate this fact that he recorded the dying declaration of injured Amarjeet Singh. In his statement he has not given the fathers name of the injured Amarjeet Singh though in dying declaration Ex.P/35 name of father of injured Amarjeet Singh has been mentioned. PW14-Ranjeet Singh has no where stated that this dying declaration was recorded in his presence. PW15-Puna Ram has simply stated that he got the dying declaration recorded from the Magistrate, but he has no where stated that it was recorded in his presence. PW12-Girraj Prasad Gupta has admitted in his cross examination that at the time of recording dying declaration no police personnel was present there though Doctor, Nurses and Compounders were near the bed at the time of recording the dying declaration.
Learned counsel for the appellants submitted that it is doubtful in the facts and circumstances that the dying declaration Ex.P/35, which has been recorded was that of the deceased Amarjeet Singh son of Gurudev Singh, as another injured Amarjeet Singh s/o Harbans Singh was also admitted in the same ward and in his case also a requisition was given by PW15-Puna Ram-the Investigating Officer to the Magistrate for recording his dying declaration and in absence of the identity of the deceased by the doctor who certified the patient as capable of giving the statement being examined by the prosecution it was doubtful which of the two Amarjeet Singh gave the statement, hence it could not be believed. It is true that except statement of PW12-Girraj Prasad Gupta there is no other evidence on record to prove this fact that dying declaration Ex.P/35 was given by deceased-Amarjeet Singh son of Gurudev Singh because neither Dr.N.K.Gupta was examined by the prosecution nor Ranjeet Singh has corroborated this fact nor other compounder and nurses present near the bed were examined by the prosecution. No doubt on the top of dying declaration it has been mentioned that this dying declaration pertains to FIR No.166/89 Police Station Railway Colony and on the next line MSWV Bed No.11 has been mentioned. As far bed of deceased-Ajmarjeet Singh is concerned, requisition Ex.P/33 given by PW15-Puna Ram to Special Judicial Magistrate does not bear the bed number of deceased-Amarjeet Singh and prosecution has not exhibited his injury report, Bed-Head-Ticket, Operation Notes of deceased-Amarjeet Singh and in the absence of these important documents it is not proved beyond reasonable doubt that dying declaration Ex.P/35 recorded by Special Judicial Magistrate was that of deceased Amarjeet Singh son of Gurudev Singh specially when another injured-Amarjeet Singh son of Harbans Singh, who is brother in law of deceased-Amarjeet Singh son of Gurudev Singh who was also injured in the same incident, was also admitted in the Hospital in the same Ward.
On the top of dying declaration Ex.P/35 FIR No.166/89 has been written by the Magistrate, but it the is admitted case of the prosecution that Parcha Bayan Ex.P/37 which is said to have been recorded at 11.20 a.m. endorsement regarding FIR Number was made at 1.30 p.m. and check FIR Ex.P/38 was prepared at 1.30 p.m. In such circumstances, it becomes suspicious that on Bed No.11 Amarjeet Singh son of Gurudev Singh was lying and his dying declaration was recorded. PW13-Dr.M.M.Sharma, who examined injured-Hardeep Singh and Amarjeet Singh son of Harbans Singh, has stated that he examined the injuries of both the injured persons and prepared injury report Ex.P/36 at 11.40 a.m.and Ex.P38 at 11.45 a.m.. He has further stated that he gave requisition to police personnel for recording the dying declaration of Amarjeet Singh son of Harbans Singh whose general condition was not good. That requisition has also been suppressed by the prosecution. In such circumstances it cannot be denied that the dying declaration Ex.P/35 recorded by the Magistrate could be that of Amarjeet Singh son of Harbans Singh-the injured instead of Amarjeet Singh son of Gurudev Singh-the deceased.
PW15-Puna Ram has also admitted in his statement that after getting the dying declaration recorded from the Magistrate he reached to the police station and prepared check FIR No.166/89. If FIR was chalked after recording the dying declaration how FIR No.166/89 was recorded by the concerned Magistrate in the dying declaration Ex.P/35 is not clear. It gives suspicion to the fact that dying declaration Ex.P/35 was recorded at 12.20 p.m. PW15-Puna Ram has admitted in his cross examination that when injured persons were brought to the police station he became aware of the whole incident, but he did not chalk down the FIR and sent the injured persons to the Hospital. After reaching the Hospital he obtained opinion of the doctor on requisition Ex.P/33 and then recorded Parcha Bayan Ex.P/37. It took 30 to 45 minutes in submitting requisition Ex.P/33 to the Magistrate and bringing the Magistrate to the Hospital. He has also stated that he started recording parcha bayan Ex.P/37 at 11.20 a.m. If these facts are admitted we come to the conclusion that parcha bayan Ex.P/37 was recorded at 11.20 a.m. and before that PW15-Puna Ram obtained opinion from the doctor on Ex.P/34. There is endorsement of doctor at 11.50 a.m. in which it has been mentioned that the patients condition is serious, Call Magistrate for dying declaration. As per statement of Puna Ram after getting endorsement of doctor on Ex.P/34 he recorded parcha bayan Ex.P/37 then in such circumstances parcha bayan could not have been recorded at 11.20 a.m. and thus, parcha bayan itself becomes doubtful. If it is presumed that parcha bayan was recorded at 11.20 a.m. and it took about 10 minutes in recording parcha bayan as endorsement of police was made at 11.30 a.m. and after that he moved requisition Ex.P/33 to the concerned doctor who gave his opinion at 11.50 a.m. then only after that he could have moved to the Court and submitted the requisition Ex.P/33 to the Magistrate for recording dying declaration and in bringing Magistrate to the Hospital which took about 30 to 45 minutes, then recording of dying declaration could not have taken place atleast before 12.20-12.35 p.m., whereas endorsement about fitness for statement of the injured on the top of dying declaration Ex.P/35 is of 12.15 p.m. and as per statement of PW12-Girraj Prasad Gupta the whole statement was recorded at 12.20 p.m. which is apparently not possible to believe. As per the statement of witnesses at the time of recording the dying declaration injured-Amarjeet Singh son of Gurudev Singh was crying on account of pain then dying declaration Ex.P/35 covering one and half page could not have been recorded by the Magistrate within 5 minutes. In such circumstances, it can be inferred that though dying declaration Ex.P/35 was completed by 12.20 p.m., but endorsement regarding fitness for statement by Dr.N.K.Gupta was not made at 12.15 p.m., but earlier in time and statement of PW15-Puna Ram cannot be believed that after getting opinion of doctor on requisition Ex.P/34 he recorded parchaya bayan Ex.P/37 and then moved to the Magistrate for recording the dying declaration. Another aspect is the absence of the injury report and bed head ticket or treatment record of deceased-Amarjeet Singh son of Gurudev Singh which makes it suspicious whether Amarjeet Singh son of Gurudev Singh was at all admitted in the hospital while he was alive. Looking to the nature of the injury on his body shown in the postmortem report Ex.P/32, if deceased-Amarjeet Singhs injury report was prepared by the doctor alongwith other injured persons it is not clear why that has been suppressed. PW15-Puna Ram stated that he got information regarding death of Amarjeet Singh at 7.40 p.m. whereas PW14-Ranjeet Singh has admitted that he died between 4-5 p.m. As observed earlier, Bed-Head-Ticket and Surgical Notes have also been suppressed and in such circumstances this possibility cannot be ruled out that injured-Amarjeet Singh son of Gurudev Singh died even before he was taken to the hospital and the dying declaration Ex.P/35 was given by other injured-Amarjeet Singh son of Harbans Singh disclosing his fathers name as Gurudev Singh. On comparison the signatures of deceased-Amarjeet Singh on parcha bayan Ex.P/37 do not tally with signatures of Amarjeet Singh on the dying declaration Ex.P/35 whereas signatures of PW8-Amarjeet Singh son of Harbans Singh on his statement recorded in Court is similar to the signatures of Amarjeet Singh son of Gurudev Singh on the dying declaration Ex.P/35. In such circumstances, it casts a doubt and cannot be ruled out as a possibility that the dying declaration Ex.P/35 was given by injured-Amarjeet Singh son of Harbans Singh instead of Amarjeet Singh son of Gurudev Singh-the deceased.
Learned counsel for the appellants alternatively argued that even if dying declaration Ex.P/35 was given by deceased-Amarjeet Singh it cannot be believed because it is a tutored one. From the statement of PW3-Balraj Singh it becomes clear that other family members of the deceased reached to the Hospital before recording the dying declaration. In such circumstances this possibility cannot be ruled out that the dying declaration was given by Amarjeet Singh after due deliberation with his family members and in such circumstances the dying declaration in which there are many infirmities cannot be relied on.
It is admitted position that on parcha bayan Ex.P/37, police endorsement was made on 8.10.89 at 1.30 p.m. in which FIR No.166/89 has been mentioned even then this number has been mentioned in requisition Ex.P/33 and dying declaration Ex.P/35 before the chack FIR was drawn and no FIR No. was available till 1.30 p.m. It seems that either Check-Ex.P/38 was prepared before recording of dying declaration at 12.20 p.m. or dying declaration was recorded after 1.30 p.m. as Check Ex.P/38 was drawn at 1.30 p.m. As per statement of PW15-Puna Ram Amarjeet Singh died before 7.40 p.m. whereas PW14-Ranjeet Singh, brother of deceased, has stated that Amarjeet Singh died at 4 5 p.m. If dying declaration was recorded after 1.30 p.m. and before 4.00 p.m. at that time condition of Amarjeet Singh must be critical and he would not have been in a position to make such a dying declaration particularly when he was undergoing treatment for saving his life. In absence of other medical record it can not be ruled out that deceased-Amarjeet Singh died before reaching hospital. In such circumstances, no reliance can be placed on this dying declaration.
Learned counsel for the appellants argued that FIR Ex.P/37 is not the first FIR, hence, this document is hit by Section 162 Cr.P.C. and cannot be read in evidence. As per statements of witnesses PW3-Balraj Singh, PW6-Hardeep Singh, PW8-Amarjeet Singh, PW14-Ranjeet Singh, just after the occurrence all the three injured persons were taken to police station and facts regarding incident were revealed to the SHO. PW15-Puna Ram has admitted in his cross examination that all the injured persons were brought in the jeep to the police station and persons accompanying the injured persons informed him about the whole incident. He further admitted that he came to know about the whole incident, but he did not chalk FIR and directed to get injured persons admitted in the Hospital as their condition was serious. After reaching the Hospital he recorded the Parcha Bayan Ex.P/37. Thus, it becomes clear that before recording Parcha Bayan Ex.P/37 the whole incident was made known to PW15-Puna Ram by the persons accompanying the injured persons and he ought to have recorded the FIR immediately. Only after coming to the Hospital he recorded the Parcha Bayan at 11.20 a.m. which is not the FIR but rather the statement of the deceased under Section 161 Cr.P.C. which is hit by Section 162 Cr.P.C.
It has been held by Apex Court in State of Andhra Pradesh vs. Punati Ramulu & ors. reported in AIR 1993 SC, 2644 that when the investigating officer deliberately does not record the FIR after receipt of information of a cognizable offence but register the complaint as a FIR after reaching the spot and after due deliberations that complaint cannot be treated as a FIR and it would be a statement made during investigation and will be hit by Section 162 Cr.P.C. Similarly in Golla Jalla Reddy and ors. vs. State of A.P. reported in (1996) 8 SCC, 565 it was held by Apex Court that if an oral statement is given to the police disclosing a cognizable offence and the police starts investigation on its basis, written report given immediately thereafter cannot be treated as FIR and such report must be treated as a statement recorded under Section 161 Cr.P.C. and cannot be used for the purpose of corroboration of the evidence of its maker.
Learned counsel for the appellants further argued that there is delay of 4 days in sending the FIR to the Magistrate. Perusal of record reveals that parcha bayan Ex.P/37 was recorded at 11.20 a.m. on 8.10.89, whereas Check Ex.P/38 was sent to the Magistrate on 12.10.89 at 1.30 p.m. Thus, there is delay of 4 days in sending FIR to the Magistrate and no explanation has been given by PW15-Puna Ram regarding delay in sending FIR to the Magistrate. In the case reported in 1981 Criminal Law Journal, 364 Swarn Singh vs. State of Punjab the murder was committed at 9.30 p.m. and FIR was lodged at 11.15 p.m., but it was sent to the Magistrate on the next day at 7.00 a.m. though the Magistrates residence was only 2-3 furlong from the police station and on account of delay in sending FIR to the Magistrate the accused was acquitted of the charges under Section 302 IPC on account of it being doubtful. The Honble Apex Court has held in State of Rajasthan vs. Teja Singh & others reported in 2001 Criminal Law Journal, 1176 that delay of two days in sending FIR to the Magistrate, though those two days were holidays, cannot be a ground of condoning said delay because rule of law is that FIR should reach to the concerned Magistrate without any undue delay and acquittal of accused was held proper.
In the present case, when there is no reasonable explanation for delay of four days in sending the FIR to the Magistrate in the facts and circumstances of this case the prosecution story becomes suspicious and accused-appellants are entitled to benefit of doubt.
As far as the FSL report is concerned, PW15-Puna Ram has exhibited FSL report Ex.P/51. According to this report human blood was found on the Kurta, Payjama and Chaddi of deceased and on the two Talwars. On further examination Blood-Group-B was found on Kurta and Payjama, but blood group could not be determined on Chaddi and two Talwars sent for FSL. In this case one sword was recovered from accused-appellant-Hariya vide recovery memo Ex.P/27 and one sword was recovered from accused-appellant-Dhanpal vide recovery memo Ex.P/12, one sword was recovered from accused-Ramlal vide recovery memo Ex.P/13 and one sword from accused-Hemraj vide recovery memo Ex.P/31. The Investigating Officer has not put any marking on the recovery memos and in such circumstances it cannot be ascertained sword recovered from which accused has been sent for chemical examination. No doubt in FSL report Ex.P/51 mark B & C have been shown on the packets containing sword, but no such marking has been shown in the recovery memos of sword from these two accused-persons. Thus, it cannot be said with certainty that the swords recovered from accused-appellants have been sent to the FSL and in such circumstances on the basis of FSL report Ex.P/51 we cannot come to the conclusion that sword from packet B & C have been recovered from accused-appellants. In this case the sword was recovered from accused-Dhanpal on 21.10.89 and from accused-Hariya on 23.10.89, but as per FSL report Ex.P/51 these swords were received by Forensic Science Laboratory on 21.11.90 i.e. after almost 13 months and the Forensic Science Laboratory gave its report on 8.7.91 i.e. almost after 8 months of receipt of the articles and nearby 21 months of their recovery.
In the case reported in 1991 SCC (Criminal) 61, Baldev Singh Vs. State of Punjab the Hon'ble Apex Court acquitted accused-person under Section 302 IPC as the pistol and fired cartridge seized on 15.1.1975 were sent to the F.S.L. on 27.1.75 and on account of delay in sending articles for examination it created doubt about connection of the cartridge with the crime. In 1990 Cr.L.R. (Raj.) 217, Jai Singh and others Vs. State incident was of 15.9.84 and empties were recovered in October 1984, but were sent to Laboratory for examination on 13.12.84 and on account of delay in sending articles for examination F.S.L. report was not believed and accused were acquitted under Section 302 IPC.
In the present case recovered articles were sent for chemical examination after 13 months of recovery and report too was given after 8 months of receipt of the same and there is no explanation for delay in sending articles for chemical examination. FSL report Ex.P/51 cannot be believed and accused persons cannot be connected with the crime on the basis of recovered swords particularly when no marks have been assigned in the recovery memo, and four swords were recovered from the accused-persons two of whom have been acquitted and whereas only two swords were sent for chemical examination.
As far identification parade is concerned, the trial Court itself has disbelieved the identification memos, so we need not to discuss the evidence regarding the identification of accused-persons. The other accused-persons have been acquitted disbelieving the identification parade as accused-persons had already been shown to the witnesses prior to identification parade. The prosecution witnesses have admitted in their statements that they saw accused-persons after being arrested and before the test identification parade. In such circumstances identification parade does not connect the accused-persons with the crime.
As far eye witnesses to the occurrence are concerned, prosecution has examined PW6-Hardeep Singh, PW8-Amarjeet Singh and PW14 Ranjeet Singh as eye witnesses and defence has examined DW1-Babulal as eye witness. Perusal of parcha bayan Ex.P/37 reveals that assailants inflicted injuries on the body of deceased and injured persons and after hearing their hue and cry deceased's brother-Ranjeet Singh and servant Babulal came on the spot and accused Dhanpal and Hariya ran away from the spot. Perusal of dying declaration Ex.P/35 also reveals that after inflicting the injuries the assailants ran away on this supposition that they have died and lateron the servant Babu Lal and Ranjeet Singh came on the spot. Thus, it becomes clear from the parcha bayan Ex.P/37 and dying declaration Ex.P/35 that deceased's brother Ranjeet Singh and servant Babu Lal were not eye witnesses to the occurrence.
PW14-Ranjeet Singh has stated in the statement that on hearing hue and cry he alongwith Babu Lal he went on the spot and saw that accused-Hariya and Dhanpal were inflicting injuries with sword on the body of deceased-Amarjeet Singh and assailant Bablu inflicted injury with Ballam on the thigh of deceased. He has further further stated that other 4-5 assailants including Mahaveer, Shambhu and Hemraj were inflicting injuries on the body of other injured persons Hardeep @ Hari Singh and Amarjeet Singh. He has admitted in his cross examination that when he reached he saw that his brother-Amarjeet Singh was lying near the field of Roop Chand and other injured-Amarjeet Singh and Hari Singh were lying in the way and all were bleeding. By this admission of PW14-Ranjeet Singh it can very well be inferred that he reached on the spot after the beating had taken place and he had not seen the assailants inflicting injuries on the body of injured persons and deceased. PW8-Amarjeet Singh has also admitted that on his hue and cry Ranjeet Singh and his servant came on the spot after 10 to 15 minutes. DW1-Babu Lal has stated that injured Amarjeet Singh and Hari Singh, who are brother-in-law of deceased-Amarjeet Singh have murdered deceased Amarjeet Singh. He further stated that deceased-Amarjeet Singh was inflicting injuries on the body of injured-Amarjeet Singh and Hari Singh with sword and injured-Amarjeet Singh and Hari Singh were inflicting injuries with sword and ballam respectively on the body of deceased. His statement cannot be believed as defence has no where suggested to any prosecution witness that the injuried persons inflicted injuries on the body of deceased. In such circumstances presence of DW1-Babu Lal on the spot at the time of occurrence cannot be believed and thus, there remains only two eye witnesses to support the prosecution story.
PW6-Hardeep Singh alias Hari Singh has stated in his statement that he alongwith injured-Amarjeet Singh was going on motorcycle with deceased Amarjeet Singh and near the house of Roop Chand 10 t0 12 persons came out of the house of Roop Chand including accused-appellants Hariya and Dhanpal armed with sword, ballam, lathi, sariya etc. and surrounded them and inflicted injuries on their bodies. He further stated that he asked why were they being beaten, but they did not hear and accused-Dhanpal inflicted injury with sword on the head of deceased and accused-Hariya stabbed sword in the abdomen of deceased-Amarjeet Singh and Bablu inflicted injury with sariya on right thigh of deceased on account of which Amarjeet Singh fell down. Then other assailants also inflicted injuries on the body of deceased with lathi and other weapons. He further stated that injured-Amarjeet Singh tried to rescue deceased, then Hemraj and Durga inflicted injury on the body of injured-Amarjeet Singh. When injured-Amarjeet Singh also fell down all assailants inflicted injuries on his body with sword. He has admitted in his cross examination that it was only for the second time that he had come to the house of deceased-Amarjeet Singh. He was not knowing the persons of the village Sogariya by name. He has further admitted that he was not knowing accused-Hariya before the day of the occurrence but at the time of occurrence accused-Hariya revealed his identity as son of Prahlad Patel. He has further admitted that he was not knowing accused-Dhanpal by name or by face before the occurrence. He has also stated that deceased-Amarjeet Singh fell down on account of the first blow inflicted on his forehead and he alongwith Amarjeet Singh also fell down. He has further stated that when he was being beaten by assailants accused Hariya used to call that assailant by his name and praise his blow, but he did not disclose this fact in his police statement and is an improvement and after thought. He has not disclosed that by which assailant and by which weapon and on which part of his body, the injury was inflicted. PW8-Amarjeet Singh son of Harbans has stated that he alongwith his brother Hari Singh was going on the motorcycle with deceased-Amarjeet Singh. Near the Dhani of Roop Chand 15-16 persons who were hiding themselves came out from the house of Roop Chand when their motorcycle reached near the house of Roop Chand. Accused-Hariya, Dhanpal and Hemraj were armed with sword and others were armed with sariya, dhariya etc. He further stated that when 15-16 persons came in the way deceased-Amarjeet Singh stopped motorcycle and then accused-Hariya inflicted injury with sword on the forehead of deceased-Amarjeet Singh. The motorcycle fell down, then accused-Dhanpal and Hariya inflicted injuries on the body of deceased but he cannot say on which part of body they inflicted injuries. He further stated that accused-Hemraj and Durga inflicted 4 to 5 injuries with sword on his body and injuries were also inflicted on the body of their companion Hardeep Singh by other persons, but he cannot say who were those assailants. He further stated that he and deceased-Amarjeet Singh fell down on account of injuries. He further stated that accused-Hariya inflicted injuries with sword on the body of deceased-Amarjeet Singh. He admitted in cross examination that occurrence took place near one 'Koluposh' house and place of occurrence was visible from 100 yards. He further admitted that he and Hari Singh left motorcycle before injuries were inflicted on the forehead of Amarjeet Singh. He further stated that both of them ran towards the south direction, but they were surrounded by assailants and they begged the assailants to let them go. He further stated that he came to know accused-Hariya at 8.00 a.m. in the morning on account of some quarrel regarding water on the field of deceased as at that time accused Hariya told that his name is Hariya and he is son of Prahlad Patel. He further admitted that in the morning no quarrel took place and accused-Hariya left the field after threatening the deceased. He further admitted that he was not knowing accused-Dhanpal before the occurrence. He further stated that when they tried to rescue deceased they were also beaten. He has also admitted that accused-Dhanpal inflicted injury with sword having one edge and accused-Hariya also inflicted injury with one edged sword. He further admitted that assailants were also armed with double edged ballam. He further stated that accused Hariya firstly inflicted injury with sword on left shoulder of deceased and then stabbed sword in his abdomen. He cannot say how many more injuries were inflicted with sword by accused-Hariya. He has admitted that his police statement does not contain the fact that accused-Hariya inflicted injury with sword on the forehead of deceased. He has also admitted that on his hue and cry other villagers of Sogariya also came on the spot but he cannot say how many persons came there.
Evidence of PW6-Hardeep Singh and PW8-Amarjeet Singh reveals that they went in the village of deceased only for the second time prior to day of occurrence and they were not knowing the accused-appellants and other assailants. PW6-Hardeep Singh has stated that in the morning prior to the occurrence accused-Hariya said that he would not be the true son of Prahlad Patel if he does not kill them whereas PW8-Amarjeet Singh has simply stated that in the morning Hariya left the field threatening that he is son of Prahlad Patel and he will take care of deceased-Amarjeet Singh and at that time no quarrel took place. At the time of actual occurrence as per statement of PW6-Hardeep Singh accused Hariya was calling other accused-assailants by name and they were inflicting injuries so he came to know their names but this fact does not find place in his police statement and is an obvious improvement. On the contrary PW8-Amarjeet Singh no where corroborated this fact that accused-Hariya was calling other assailants by name. PW8-Amarjeet Singh has simply stated that he enquired from deceased-Amarjeet Singh about the house situated between the house of deceased and Sogariya Village then he was told by deceased that the house is of accused-Dhanpal and he was not knowing accused-Dhanpal personally. He has not given any source by which he came to know accused-Dhanpal. Both these witnesses have also admitted that before test identification parade they saw these accused-persons in police custody. In such circumstances test identification parade had already been disbelieved by the trial Court and in the absence of prior personal acquaintance with accused-Hariya and Dhanpal it cannot be believed that injuries on the body of deceased were inflicted by accused-Hariya and Dhanpal. PW6-Hardeep Singh has stated that injured Amarjeet Singh tried to rescue deceased-Amarjeet Singh and when injured Amarjeet Singh was also beaten and he fell down other assailants inflicted injuries on the body of Hardeep Singh. On the contrary Amarjeet Singh has stated that he alongwith Hardeep Singh left motorcycle before injury was inflicted on the forehead of Amarjeet Singh and ran away in south direction and when they were surrounded by accused-persons, they prayed to let them go. On the contrary, PW6-Hardeep Singh has stated that he alongwith injured-Amarjeet Singh and deceased-Amarjeet Singh fell down from the motorcycle on account of injury inflicted by accused-Dhanpal on the forehead of deceased-Amarjeet Singh. PW6-Hardeep Singh has stated that when they were surrounded by assailants they asked them why are they being beaten, but this fact has not been corroborated by PW8-Amarjeet Singh. PW8-Amarjeet Singh has stated that Hariya inflicted injury with sword on left shoulder of deceased, but this fact has not been corroborated by PW6-Hardeep Singh and postmortem report Ex.P/2. PW6-Hardeep Singh has stated that accused-Bablu inflicted injury with sariya on the right thigh of deceased, but PW8-Amarjeet Singh does not corroborate this fact and in postmortem report there is no injury on right thigh of deceased, but injury was found on left thigh of deceased. There are many other contradictions in the statements of these two witnesses. Both these witnesses are brother-in-law of deceased-Amarjeet Singh and interested in prosecution and looking to the contradictions in their statements and omissions and improments in their police statements their statements do not inspire confidence and on the basis of statements of these two witnesses it is not proved beyond reasonable doubt that accused-Hariya and Dhanpal inflicted injuries with sword on the body of deceased.
PW11-Dr.Dev Dutt Sharma has admitted in his cross examination that injury No.1 stab-wound on the abdomen was caused by pointed weapon like bhala. He has also admitted that this wound had double edge. PW8-Amarjeet Singh has admitted in his cross examination that accused-Dhanpal and Hariya were armed with single edged sword whereas some of the assailants were armed with double edged ballam. Injury No.1 on the body of deceased was caused by double edged pointed weapon then it can very well be inferred that injury No.1 was not caused by a sword, but was caused by ballam and in such circumstances it becomes suspicious that injury No.1 occurred on account of stabbing sword by accused-Hariya. In State of Rajasthan vs. Bhanwar Singh reported in 2004 IX AD (SC) 326 the doctor gave evidence that injury on head could not have been caused by a sword and it was possible only by a blunt weapon consequent acquittal by High Court was held proper by Apex Court as the eye witness account was not corroborated by medical expert opinion. In the present case, as per statement of Dr.Dev Dutt Sharma injury No.1 was not caused by a sword, but was caused by a pointed weapon like Bhala having double edge it becomes doubtful therefore, that injury No.1 was caused by accused-Hariya by sword. This possibility can not be ruled out that some other assailants inflicted the fatal blow on the body of deceased by a double edged ballam (spear).
As per parcha bayan Ex.P/37 accused-Dhanpal inflicted injury with sword (Kripal) on the head of deceased whereas as per dying declaration Ex.P/35 accused-Dhanpal inflicted injury with sword on the shoulder of deceased. As per dying declaration Ex.P/35 after first injury on shoulder other assailants inflicted injuries with lathis and lateron accused-Hariya stabbed Kripan in the body of deceased whereas as per parcha bayan Ex.P/37 just after injury on the head inflicted by accused-Dhanpal, accused-Hariya stabbed sword in the abdomen of deceased-Amarjeet Singh. Thus, it becomes clear that in the parcha bayan Ex.P/37 sword has been shown in the hand of accused-Hariya and Kripan in the hand of accused-Dhanpal, whereas in the dying declaration Kripan has been shown in the hand of accused-Hariya and sword has been shown in the hand of accused-Dhanpal and in the same way sequence of injuries were also changed. In parcha bayan it has been mentioned in the last lines that there was quarrel regarding irrigation of water between them and further stated that only today they quarreled in respect of irrigation of land whereas in dying declaration it has been mentioned that accused-Hariya came on the spot and threatened to take water and when deceased asked him to take water at 4.00 O'clock then accused-Hariya abused and left the field to bring other persons and lateron came alongwith accused Dhanpal and quarreled and again after asking them not to close water, left with threatening that they will come alongwith other persons. It appears that genesis of dispute has almost been changed within an hour. As per the dying declaration Ex.P/35 the deceased alongwith injured persons left their house to lodge a report against accused-persons, but this fact does not find corroboration from parcha bayan Ex.P/37 and evidence of other prosecution witnesses and in such circumstances the dying declaration Ex.P/35 becomes suspicious.
PW15-Puna Ram has stated that he prepared site plan Ex.P/1. PW1-Gurujant Singh has stated that police prepared site plan Ex.P/1 and recovered motorcycle and cycles from the spot. He has admitted that near the place of occurrence neither he nor deceased-Amarjeet Singh has any field. PW7-Balvendra Singh has stated that Ex.P/1 site plan bears his signature, but it was not prepared in his presence. He has even denied recovery of motorcycle and cycles from the spot. It has been mentioned in site plan Ex.P/1 that except cycles and motorcycle, there is no other mark or articles on the spot which can be taken by the Investigating Oficer. As per prosecution witnesses when there were so many injuries on the body of injured persons and deceased and blood came out of the injuries and as per PW8-Amarjeet Singh blood also spread on the place of occurrence then it was obligatory on the part of the Investigating Officer to take blood smeared soil from the spot. Absence of blood on the spot casts a doubt that the occurrence did not take place near the house of accused-Dhanpal. It was held by the Apex Court in AIR 1991 SC 1316 (Buta Singh vs. State of Punjab) that when no blood was found at the place where, according to the prosecution, incident occurred it can be inferred that place of occurrence has been shifted and in such circumstances whole prosecution story becomes doubtful. In the site plan Ex.P/1 neither the house of Dhanpal nor house of Roop Chand has been shown, whereas the witnesses have stated that the occurrence took place near the house of Roop Chand. Absence of blood on the place of occurrence as per Ex.P/1 and non mention of the accused's house near the place of occurrence belies whole prosecution story and in such circumstances it becomes doubtful that occurrence took place near the house of accused-Dhanpal as suggested by prosecution witnesses.
Taking all these circumstances into account that the identity of the accused was not known to the injured eye witness and they could not disclose their name hence the FIR could not be recorded without deliberations with other relatives and this resulted in delay of four days in sending the FIR to the Magistrate by the police, the fact that no medical records of the deceased have been produced by the prosecution to suggest in what condition the deceased was when he was brought to the hospital coupled with the fact that the injured with the same name Amarjeet Singh was also admitted in the hospital and for him also a requisition was prepared for getting his dying declaration recorded casts a serious doubt as to whose dying declaration was recorded by the Magistrate particularly when the certifying doctor was not examined by the prosecution casts a serious doubt on the authenticity of the dying declaration. Also the test identificfation parade has been discarded by the learned trial Court itself as such the identification of the accused as the assailants can not be held established beyong reasonable doubt. The recovery of the weapon is of no consequence as they could not be connected with the crime as the blood does not match that of the deceased and moreover when they were not sealed by putting any mark which is obvious from the recovery memos.
In these facts and circumstances the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
In the light of above discussions, it becomes clear that alleged dying declaration made by deceased cannot be relied on and FIR itself is hit by Section 162 Cr.P.C. and prosecution failed to give any explanation for delay in sending FIR to the Court. Looking to the variance in medical evidence and oral evidence and contradictions in the statements of witnesses and failure of prosecution in connecting the accused-persons with the crime with the aid of FSL report and identification memo accused-persons are entitled to get benefit of doubt.
Consequently, DB Criminal Appeals No.455/2003 & 226/2003 filed by appellants are accepted and allowed and the judgment dated 21.1.2003 passed by Additional Sessions Judge (Fast Track) No.1, Kota in Sessions Case No.89/2001 by which he convicted accused-appellant-Hariya under Section 302 IPC and accused-appellant-Dhanpal under Section 302/34 IPC is set aside. Accused-appellants-Hariya son of Prahlad who is in jail, may be released forthwith if not wanted in any other criminal case.
Accused Dhanpal son of Kishore Lal, who is on bail need not to surrender and his bail bonds stand cancelled.
(K.S.CHAUDHARI) J (DALIP SINGH) J