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12. Learned trial judge in the impugned judgment gave categorical finding that Sher Singh (PW.1) did not see the incident from his eyes. Co-accused Kalyan Singh and Kripal Singh were acquitted on the ground that they were not named in the report Ex.P.3. Identification of Kripal Singh was also not believed and it was held that the prosecution failed to prove beyond reasonable doubt that Kalyan Singh and Kripal Singh participated in the crime.

13. The case of the prosecution thus rests on the sole testimony of Birbal Singh (PW.3) It is contended by Mr. A.K. Gupta learned counsel for the appellant that testimony of Birbal Singh is infirm and no reliance can be placed on it. According to learned counsel Birbal Singh who is the real uncle of the deceased in his deposition stated that his son Pradeep Singh was not with him and Jagdish was not taken by Pradeep to the Hospital but a look at the report entered into Rojnamcha (Ex.D.2) demonstrates that as per information given by compounder of the office of the Medical Jurist, Pradeep Beniwal and Slier Singh constable took the dead body of Jagdish to the Hospital. Name of Birbal Singh was not mentioned in that report. Another circum-. stance suggested by the learned counsel to disbelieve the evidence of Birbal Singh is that although Birbal Singh deposed that while taking to Jagdish in auto rickshaw to the Hospital his clothes had been stained with blood, Het Ram I.O. did make no attempt to seize the blood stained clothes. The I.O. did not show the spot in the site plan where Birbal Singh was standing at the time of occurrence. Inviting our attention to the statement of Sher Singh (PW.1), learned counsel urged that Birbal Singh had reached at the spot after Jagdish was made to sit in the auto rickshaw by Sher Singh. It is also canvassed by learned counsel that the report Ex.P.3 is a concocted document. The actual first information report is Ex.P.2 which was recorded on the basis of information given by some person on telephone. The FIR was lodged with the P.S. Bani Park on December 15, 1988 at 10.45 p.m. but it was forwarded to the Ilaqa Magistrate on december 16, 1988 at 4.25 pm. whereas the court of Ilaqa Magistrate is very near from the Police Station. Learned counsel placed reliance on various authorities that shall be considered in the later part of this judgment.

16. Keeping in view these principles we now proceed to analyse the submissions advanced before us.

17. From the cautious scrutiny of the material on record, the fact situation that emerges may be deduced thus-

(i) Some unknown person informed Police Station Bani Park over telephone that in a quarrel near Polo Victory Cinema one person received knife Injury. This intimation was recorded in Rojnamcha (Ex.P.2) dated December 15, 1988 at 8.55 p.m. and SHO Het Ram alongwith police party proceeded to the spot in a jeep.

19. Mr. A.K. Gupta, learned counsel strenuously urged to discard the testimony of Birbal Singh in view of report of Rojnamcha (Ex.D.2) according to which Nishi Kant Compounder of the Medical Jurist gave telephonic message that constable Sher Singh and Pradeep Singh Beniwal came to the Emergency Ward with Jagdish who was declared dead and dead body of Jagdish was lying in mortuary. Learned counsel on that basis canvassed that Birbal Singh did not take Jagdish to the Hospital but Pradeep Beniwal and constable Sher Singh were the actual person who took Jagdish first to Emergency Ward and then to Mortuary. Had Birbal Singh been there with the dead body, Nishi Kant compounder would also have named him in the telephonic message. In order to appreciate the contention of learned counsel we have closely scrutinised Rojnamcha (Ex.D.2). As already noticed Rojnamcha Ex.D.2 contains Reports No. 1144 entered at 11.50 P.M. on December 15, 1988. After the information communicated on telephone by Nishi Kant compounder of the office of Medical Jurist it was also stated in the Rojnamcha that case No. 449/88 was already registered and the SHO was busy with the investigation. It thus appears that after FIR (Ex.P.I7) bearing No. 449/88 at 10.45 was already registered the telephonic message was received at 11.50 p.m. and that was entered into Rojnamcha (Ex.D.2). As already stated written report Ex.P.3 was submitted by Birbal Singh to SHO Het Ram at the SMS Hospital which is evident from the endorsement made by Het Ram on the report itself. We have closely scanned the evidence of Birbal Singh and we find that even after searching cross examination no dent could be caused in his testimony which goes to the root of the matter so as to demolish the entire prosecution story. Evidence of constable Sher Singh (PW.1) may be relied upon to the extent that he and Birbal Singh took Jagdish in an auto rickshaw to the Hospital. If Compounder Nishi Kant did not name Birbal Singh in his telephonic message it does not mean that Birbal Singh did not go to the Hospital. Undoubtedly there are discrepancies in the testimony of Birbal Singh but in our opinion they do not shake the basic version of the prosecution case. We find the presence of Birbal Singh at the time of incident quite natural. The appellant came to his travel agency where his nephew Jagdish was sitting and on refusing to meet the demand of money knife blows were struck on the person of Jagdish by the appellant and his companions.

23. We find ourselves unable to agree with the submissions of the learned counsel that the FIR of the instant case was a fabricated document. The FIR was entered into Rojnamcha and if the number Rojnamcha was not incorporated in the FIR it cannot be held that it was brought into existence long after the occurrence. In the facts and circumstances of the case we do not find the presence of Birbal Singh at the place of incident doubtful on the ground that his blood stained clothes were not seized by the I.O. Het Ram. Birbal Singh categorically stated that while Jagdish was being taken by him in autorickshaw his clothes had become blood stained and he had shown those clothes to I.O. Het Ram. No question was asked in the cross examination from Het Ram as to whether Birbal Singh had shown his blood stained clothes to him and why did he not seize those clothes. In State of Rajasthan v. Shri Teja Singh (7), presence of witness Amrao was found doubtful on the ground that her blood stained clothes were not seized by the I.O., coupled with the evidence of defence witness Ram Pratap who had stated that when he was told about the incident by Amrao and other two witnesses they did not mention the name of the accused persons to him. But in the case on hand Birbal Singh not only took the deceased to the hospital but he promptly lodged the report naming the appellant. Therefore if the I.O. was not vigilant in seizing the blood stained clothes, we can not discard the testimony of a trustworthy witness on that count. After cautious scrutiny of the evidence of Birbal Singh we are of the view that Birbal Singh can be placed in the category of wholly reliable witness. We have weighed his evidence carefully from the point of view of trustworthiness and we find it sufficient to convict the appellant as it is found to be above suspicion of interestedness, incompetence or subornation. The formidable weapon used by the appellant, the savage manner of its execution, the helpless state of the urarmed victim, all viewed against the illegal demand of money for liquor irresistibly lead to the conclusion that the injuries caused by the appellant to the deceased were intentionally inflicted and the appellant was rightly convicted by the learned trial Court.