Rajasthan High Court - Jaipur
Pat Singh And Anr. vs State Of Rajasthan on 24 October, 1986
Equivalent citations: 1986WLN(UC)588
JUDGMENT Shyam Sunder Byas, J.
1. By this judgment dated June 14, 1976 the learned Additional Sessions Judge, Sri Ganganagar has convicted the appellants Pat Singh and Deep Singh under Section 302/34, IPC and sentenced each of them to imprisonment for life with a fine of Rs. 200/-, in default of the payment of fine to further undergo three months' rigorous imprisonment. The accused have come-up in appeal and challenge their conviction. The prosecution case may be summed-up as under.
2. In 1974, one battalion of the Border Home Guards was stationed with its Headquarters at Sri Ganganagar. PW 10 Ranjeet Kumar Sen was its Commandant One Company (C) of this battalion was detailed on duty at Mirzewala P.S. Mathili Rathan. PW 16 Charanjeet Singh was the Commander of this company. Accused Patsingh and PW 14 Harbhajansingh were the Platoon Commanders and accused Deepsingh and Amra Ram were the Home Guards whereas the deceased Kanaram was a Hawaldar in this company. PW 12 Chandawa was working as sweeper there. PW 16 Charanjit Singh remained on leave for 44 days preceding November 8, 1974 and in his absence accused Patsingh was officiating as Company Commander. Kanaram was turbulent and trouble-shooter. He was badly addicted to liquor and remained drunk day and night. After taking liquor, he was in the habit of picking-up quarrel with the persons of the Company. PW 16 Charanjit Singh returned from leave and joined duty on November 8, 1974. At about 9.00 a.m. on November 8, 1974, PW 14 Harbhajan Singh appeared before him and reported that Kanaram had taken liquor and was making noise. Charanjit Singh drew up report Ex.D 2 and sent it to the Commandant at Sri Ganganagar, requesting therein that Kanaram may be immediately transferred to some other Company. In the morning on November 9, 1974, Charanjit Singh learnt that Kanaram was lying dead in his room. He went there and found some injuries on his body. He drew up report Ex.D 3 took it to Police Station Mathili Rathan and presented it there. It was stated therein that the dead body of Kanaram was lying in his room. The SHO Shaitansingh (PW 1) proceeded to hold an enquiry under Section 174, Cr.PC. He arrived on the spot and prepared the inquest report of the dead body of Kanaram. He found one knife and some broken pieces of stick lying around the dead body. They were seized and sealed. He also seized the bloodstained soil from there. The post-mortem examination of the victim's dead-body was conducted at about 11.00 am on November 10, 1974 by the Medical Jurist Dr. Amrikasingh. He noticed the following injuries on his dead body:
External--
(1) Lacerated wound 2" x 1" on right side of his fore-head clotted blood on his borders. Bone deep; (2) Lacerated wound 1" x 1/2" occipital region of scalp bone deep; (3) Lacerated wound 2" x 1/2" on outer margin posteriorly of right fore-arm. Muscle deep; (4) Abrasion 1/2" x 1/4" on lower border of elbow joint right side with brown scale; (5) Abrasion 1" x 1/2" on upper border of elbow joint right side; (6) One bruise 7" x 1" extending from scapular region to lumber region vertically reddish at margins; (7) One bruise 9" x 1" extending from scapular region to right iliac crust obliquely; (8) One bruise 4" x 1" transversely a lower border of right scapula; (9) One bruise 6" x 1" extending from left scapular region to left lumber region vertically; (10) Multiple bruises over right buttock;
(11) One abrasion irregular 1/2" x 1/4" over right knee joint; (12) One abrasion 1/2" x 1/2" over centre of tibia bone;
(13) Lacerated wound 1/2" x 1/4" x 1/6" on middle finger of left hand; (14) Lacerated wound 1/4" x 1/4" x 1/6" on ring finger of left hand; (15) Lacerated wound 1" x 1/4" x 1/6" on left fore arm anteriorly; (16) Lacerated wound 1" x 1/4" x 1/8" on left arm on the border.
Internal--
There were fractures of 4th, 5th and 6th ribs of left side and 5th, 6th, 7th and 8th ribs of right side.
3. The doctor was of the opinion that the probable cause of death was marginal infrathorecic and infra-abdominal haemorrhage due to rupture of liver, spleen, liar of both lungs due to fracture of left side of ribs. The post-mortem examination report issued by him is Ex. P. 19. As a result of the inquiry conducted under Section 174, Cr.PC and in view of the medical opinion about the victim's death, the Station House Officer registered a case under Section 302, IPC against the appellants and one Amra Ram. They were arrested and in consequence of the information furnished by them, Lathies and rods were recovered. The blood-stained clothes and the soil were sent to the Chemical Examiner and Serologist. They were all found stained with human blood. On the completion of Investigation, the police submitted a challan against the appellants and Amra Ram in the Court of Additional Munsif and Judicial Magistrate, Sri Ganganagar, who, in his turn, committed the case for trial to the Court of Sessions. The case came for trial before the learned Additional Sessions Judge, who framed a charge under Section 302, IPC against them, to which they pleaded not guilty and demanded the trial. In support of its case, the prosecution examined 17 witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of trial, the learned Additional Sessions Judge found no incriminating evidence against accused Amra Ram to connect him with the murder. He was consequently acquitted. The prosecution case was taken substantially true against the appellants. They were, therefore, convicted and sentenced as mentioned at the very out set.
4. We have heard Mr. R.N. Bishnoi learned Counsel for the appellant and Mr. S.K. Mathur learned Public Prosecutor for the State. We have also carefully gone through the record of the case.
5. Dr. Amrik Singh, who conducted the post-mortem examination of the victim's dead body, could not be examined by the prosecution as he had left the country and gone abroad. PW 15 Ram Dutt, Compounder, was examined to prove that the post-mortem report Ex. P 19 is in the handwriting of Dr. Amrik Singh and bears his signatures. The opinion of Dr. Amrik Singh, therefore, could not be challenged as regards the cause of death of the victim. However, it cannot be over-looked that the cause of death shown in Ex. P. 19 is the probable cause. The prosecution has not examined any other doctor to show whether the injuries mentioned in Ex. P 19 are sufficient in the ordinary course of nature to cause death. Any way, it can be gathered from Ex. P 19 that the death of Kanaram was not. natural but homicidal.
6. Out of 17 prosecution witnesses, PW 1 Malluram, PW 2 Malluram s/o Chunni Ram, PW 3 Mangla Ram, PW 4 Devilal, PW 5 Jaimalnath, PW 6 Manniram and PW 14 Harbhajan Singh are alleged to have seen the incident. Unfortunately, all of them, except PW 14 Harbhajan Singh, turned hostile and lent no support to the prosecution. They were examined with the object to establish that Kanaram was encircled by the appellants and was beaten with lathies. He was thereafter tied with a tree. He was freed when the Company Commander Charanjit Singh PW 16 directed the appellants to free him. The only witness who has lent full support to the prosecution case is Platoon Commander Harbhajan Singh PW 14. The learned Public Prosecutor has frankly conceded that the fate of the case looms largely on the testimony of PW 14 Harbhanjan Singh and in case he is found unreliable, there remains scanty evidence on record which is not sufficient to connect the appellants with the murder of Kanaram.
7. It may be mentioned that the appellants were convicted solely on the basis of the testimony of this witness Harbhajan Singh.
8. It was strenuously contended by Mr. Bishnoi that PW 14 Harbhajan Singh has been wrongly accepted and treated as witness of truth by the Additional Sessions Judge. His testimony is replete with inconsistencies, contradictions and improbabilities. He claims to have seen the incident but remained silent and came out as a witness of the incident much after on November 13, 1974. His prolonged silence complete five days is a circumstance which completely destroys his credibility. It was further argued that the FIR Ex. D 3 was written in his presence by the Company Commander Charanjit Singh PW 16 and was also presented at the Police Station in his presence. He even then remained silent and did not object that what has been mentioned in Ex. D 3 is untrue and false. The inquest report and the site plan were prepared in his presence. The site plan bears his signatures as a Motbir and yet he remained silent and did not disclose to the Investigating Officer that Kanaram was beaten to death by the appellant. It was further argued that Harbhajan Singh PW 14 did not disclose the incident to anybody even the Company Commander and observed complete silence. This unnatural conduct of the witness make his testimony unworthy of belief. The conviction, therefore, could not be maintained on the strength of his sole testimony.
9. It was, on the other hand, contended by the learned Public Prosecutor that even before the incident, which took place on November 8, 1974, the appellant used to harass the victim as is revealed in the testimony of PW 9 Roshan Lal. PW 14 Harbhajan Singh is a colleague of the appellants. He has no axe to grind against them. It does not appear that he was interested in the deceased victim. It would be, therefore, not proper to disregard his testimony especially when he has been found a reliable witness by the trial Court. It was argued that we should be slow in disturbing finding of the trial Court, who has treated and accepted Harbhajan Singh as a witness of truth. We have bestowed our thoughtful consideration to the rival submissions.
10. The pertinent question before us is whether PW 14 Harbhajan Singh should be taken to be a witness of truth, on whose testimony the conviction of the appellants can be safely sustained. It would be useful to briefly read his statement. He deposed that in the evening of November 6, 1974 he heard noise while he was in his room. Accused Patsingh and deceased Kanaram were abusing each other. Kanaram went running to the well of Roshan Lal (PW 9). He and Roshan Lal intervened and Kanaram was sent to his room. In the morning of November 8, 1974, a quarrel took place between Kanaram and Amra Ram (acquitted accused). Amra Ram threatend Kanaram of dire consequences. At about 5.00 or 6.00 p.m. on November 8, 1974, the appellant and Amra Ram took drinks. He (witness) was in his room. Kanaram came to him and went away after giving cigarettes and fruits to him. At about 8.00 or 8.30 p.m., while he was in his room, he heard loud noise. He saw from his window that Kanaram was running and accused Patsingh was following him with a lathi in his hand. Accused Deep Singh came from the other side with a lathi in his hand. They encircled Kanaram and started landing blows to him. Kanaram was raising loud cries. The witness stated that he immediately went to the Company Commander Charanjeetsingh (PW 16) and informed him what he had seen. Thereafter Charanjeetsingh and he came down and saw Kanaram tied with a tree. Charanjeetsingh (PW 16) directed accused Pat Singh to free Kanaram. Charanjeetsingh and he (witness) went to the Post Office and contacted the Battalion Commandant at Sri Ganganagar on telephone. Charanjeet Singh told the Corrmandant on telephone that Kanaram had heavily drunk and was raising noise. The Commandant promised to come next day. At about 6:00 a.m. on November 9, 1974, PW 12 Chandwa, sweeper, came to him and informed that Kanaram was lying dead in his room. The witness further stated that he went to the Company Commander Charanjeetsingh. Both of them then went to Police Station, Mithili Rathan, where Charanjitsingh wrote Ex. D 3 and presented it there. The police came to the place of incident and took up the investigation. He was cross-examination at length.
11. The testimony of a witness given on death is normally presumed to be true unless successfully shattered and shaken in cross-examination. PW 14 Harbhajansingh could not acquit himself with success in the cross-examination and faultered on every important and material point. In his cross-examination, he admitted that Ex.D 3, which has been treated as the FIR in this case was written and presented to the police by the Company Commander Charanjeetsingh (PW 16) in his presence. The witness is a well educated person because he admits that Ex D 2, which is in English, is in his handwriting and was written by him at the dictation of Company Commander. Naturally, therefore, the contents of Ex D 3 were in his knowledge. He admitted that Ex. D 3 was written and presented in his presence. In Ex.D 3 it has not been described at all that Kanaram was beaten to death by the appellants. It has also not been mentioned therein that he was tied with a tree and was freed at the direction of the Company Commander. In Ex.D 3, it has also not been mentioned that Kanaram was done to death. In fact, Ex.D 3 states nothing except that the dead body of Kanaram was found lying in his room with injuries on his body. If Harbhajansingh (PW 14) had seen the incident, he would have stated to the police then and there when Ex. D 3 was presented there that what has been mentioned in Ex.D 3 is untrue and false and that Kanaram was beaten to death by the appellants and Amra Ram. His remaining silent goes a long way to cast serious doubts on his credibility. He admitted in his cross-examination that he is Platoon Commander and his job was to maintain the Rojnamcha of the Company, in which all the important happenings or events are to be recorded as they lake place in the day. Charanjeetsingh (PW 16), in his cross-examination, has admitted that all the important events and incidents happening at the Headquarters of a Company are to be written and mentioned in the Rojnamcha. Harbhajan Singh, in his cross-examination, has admitted that this incident was not mentioned by him in the Rojnamcha. He could not subscribe any satisfactory explanation for this omission on his part. In his cross-examination, he admitted that the police prepared the inquest report of the victim's dead-body, inspected the site and prepared the site plan in his presence. The site plan Ex.P 10 bears his signatures C to D. Neither in the inquest report Ex. P 9 nor in site plan Ex. P 10 and site inspection memo Ex.P 10-A which were prepared in his presence, he disclosed that he had seen the incident, and was an eye witness of it. He thus remained silent even when the police visited the spot and made these investigations. In his cross examination, he further admitted that the police examined him for the first time on November 13, 1974 and it was only then that he disclosed for the first time, that he had seen the incident. His continuous silence from November 9, 1974 to November 13, 1974 again is a circumstance which speaks heavily against him and which cannot be lightly brushed aside or ignored from consideration while evaluating and assessing his testimony. In his cross-examination, he further admitted that right from November 9, 1974 to November 13, 1974, he remained at Mirzewali and did not move out on leave etc. He was, thus, available to the police right from the day of the incident to November 13, 1974, yet he did not come forward to disclose before the Investigating Agency that he had seen the incident and Kanaram being beaten to death by the appellants. PW 16 Charanjit Singh is a responsible officer being the Company Commander. It does not appear that he had a soft corner for the appellants or was averse to the deceased victim. In his cross-examination, Charanjeetsingh(PW16) has admitted that Harbhajan Singh came to him in the evening of November 8, 1974 and told him simply that Kanaram was raising noise. He specifically stated that HarbhajanSingh did not disclose any other thing to him neither in that night nor on the next day when he wrote Ex.D 3 and presented it to the police in the presence of Harbhajan Singh. He further stated that Harbhajan Singh did not state him before he wrote Ex.D 3 that the appellants were beating Kanaram. He again repeated in cross-examination that Harbhajan Singh did not tell him that Kanaram was beaten to death by the appellants. He further stated that had Harbhajan Singh seen the incident it was his official duty to inform him of the incident so that action might be taken against the culprits. No action was taken against the appellants by him because Harbhajan Singh did not tell him that he had seen the appellants landing blows to Kanaram. He further stated that in case Harbhajan Singh told him that he had seen the appellants landing blows to and beating Kanaram, he would have, by all means, mentioned these facts in FIR Ex.D 3. It has not been mentioned so in Ex.D 3 because Harbhajan Singh did not tell him about the incident. He further admitted that upto November 13, 1974, Harbhajan Singh did not disclose that Kanaram was beaten to death by the appellants.
12. In view of the above lapses and infirmities in the testimony of the solitary witness PW 14 Harbhanjan Singh, we are unable to pin faith on what he testified.
13. The law does not prohibit the conviction on the basis of the testimony of a solitary witness. An accused can be convicted on the strength of the testimony of a single witness provided he is of sterling-worth and his testimony is above reproach. The testimony of a solitary witness should be such that it inspires confidence that it can be accepted without any reservations and that no risk is involved in acting on it. It is the quality and not the quantity of the witnesses which should be taken into account in assessing the guilt of the accused. Where there is a solitary witness, rules of prudence dictate that his testimony should be cautiously approached and thoroughly scrutinized so as to eliminate any sort of doubt.
14. As discussed earlier, PW 14 Harbhajansingh, who is the solitary witness of the incident supporting the prosecution, observed complete silence right from November 8, 1974 to November 13, 1974. He did not disclcse the incident to the Company Commander Charanjeetsingh (PW 16) to whom he was subordinate and was bound to inform him. When the FIR Ex. D 3 was written and presented to the police in his presence he even the did not disclose that he had seen the appellants landing blows to Kanaram. The witness is the Platoon Commander and maintains Rojnamcha, in which, also, he did not mention this incident. It has been repeatedly held that when the solitary eye witness does not disclose the incident and the names of the assailants immediately after the occurrence, it is unsafe to accept his testimony. In Panda Nana Kare v. State of Maharashtra AIR 1979 SC 693, the solitary eye witness was not taken to be a witness of truth because he failed to disclose the name of the assailant just after the incident. In Durvur Das Rathamma Reddy v. State of Andhra Pradesh , the witness, having knowledge of murder did not disclose the same for long time. Their Lordships declined to hold him to be truthful witness. The same view was reiterated in Kali Ram v. State of Himachal Pradesh , in which the witness professing to know the incident of murder kept silence for some time. Their Lordships were of the view that the testimony of such a witness is bound to lose its value.
15. The lapses and infirmities pointed out by us above in the testimony of PW 14 Harbhajansingh were not taken into consideration by the trial Judge In fact, his testimony was not properly sifted scrutinized and evaluated. And that makes our interference inevitable. It is curious to note that PW 14 Harbhajansingh did not state that Kanaram died on account of the beating given to him by the appellant. According to him, when Kanaram was untied and freed, he went to his room. It shows that he had not died no the spot where he was beaten. Kanaram went so his room and remained there in the night. Harbhajansingh did not state on which part of the victim's body the blows were landed. The possiblity that some miscreants intruded into the room of Kanaram where he was sleeping in that night and landed blows to him,cannot be ruled out. We feel, we shall not be well advised to maintain the conviction of the appellants on such shaky and mirky evidence which stands completely punctured from all sides of material points and essential features of the incident.
16. PW 16 Charanjeetsingh the Company Commander lent no support, to the prosecution. He of course, stated that he had seen Kanaram tied with the tree and the appellants standing near him. He directed them to free Kanaram and hey thereafter freed him. He is a responsible officer. It is strange that in the FIR Ex. D 3 he did not state these facts. There is no credible explanation to explain this omission his part.
17. For the reasons stated above, we are unable to maintain the conviction of the appellants. The prosecution has miserable failed to establish the charge of murder against them.
18. In the result, the appeal of accused Patsingh and Deepsingh is allowed. Their conviction and sentence under Section 302/34, IPC are set-aside and they are acquitted of the said offence. They are already on bail and need not surrender. Their bail bonds shall stand cancelled.