Dilip Kumar and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Dilip Kumar son of Bhagwan Singh, Subodh Kumar son of Man Singh, Jogendra Singh son of Sahab Singh and Praveen @ Boby son of Man Singh were tried by the court of Additional Sessions Judge (Fast Track) No. 4, Bharatpur Headquarter, Deeg for having caused murder of Jagdish and causing injuries to the complainant Bharat Singh (P.W. 1). The trial court vide impugned judgment dated 3.7.2008 held all the four accused guilty of offence under Sections 148 and 452 IPC. Accused Subodh was substantively convicted for offence under Section 302 IPC and Section 5/27, Arms Act, whereas Dilip Kumar, Praveen @ Boby and Jogendra were convicted under Section 302 IPC read with the aid of Section 149 IPC. All the four accused were acquitted of the offence under Section 323/149 IPC. Accused Subodh was also acquitted for offence under Section 3/25, Arms Act. Having convicted the appellant for the above offences, the trial court vide a separate order of even date sentenced them as under:--

"Accused, Dilip Kumar, Praveen @ Boby, Jogendra and Subodh:

U/s.148 IPC: Two years rigorous imprisonment, to pay a fine of Rs. 500/- and in default thereof to undergo one month simple imprisonment.

Accused, Dilip Kumar, Praveen @ Boby, Jogendra and Subodh:

U/s.452 IPC: Three years rigorous imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo two months simple imprisonment.

Accused, Subodh:

U/s.302 IPC: Sentenced to life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo three months simple imprisonment.

Accused, Jogendra, Dilip Kumar, Praveen @ Boby:

U/s.302/149 IPC: Sentenced to life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo three months simple imprisonment.

Accused, Subodh:

U/s.5/27 Arms Act: Three years rigorous imprisonment, to pay a fine of Rs. 500/- and in default thereof to undergo one month simple imprisonment.

All the four accused have instituted this appeal to assail their conviction and sentence. The criminal proceedings were initiated on the basis of statement made by Bharat Singh (P.W. 1) recorded by Narendra Sharma (P.W. 12) who was then posted as SHO, P.S. Deeg. Statement (Ex. P.1) made by Bharat Singh (P.W. 1) when translated into English reads as under:--

"Statement of Shri Bharat Singh S/o. Balbeer Singh, aged 35 years, caste Jat, R/o Mangla Halai Kasoth, P.S. Deeg, District Bharatpur.

Shri Bharat Singh stated that "on 26.11.2006 at about 8.00 PM, I, alongwith Jagdish, Kaptan Singh and other ladies of the house were in their respective rooms of the house. Subodh son of Man Singh, Boby @ Praveen son of Man Singh, Dilip son of Bhagwan Singh, Sandeep son of Dilip, Jogendra son of Sahab Singh, Bhagwan Singh son of Shobhichar etc. after having consultations with common intention from their roof came to the roof of our house and started abusing and asked us to come out of the rooms. They had thrown brick bats and started firing with licensed gun and country-made weapons. Out of fear, we had not come out from the room. The above said persons from wooden ladder alighted and came inside our house. They started firing from the courtyard in front of our room. Subodh was armed with licensed gun of his father whereas others were armed with country made weapons. They started firing indiscriminately. Jagdish was inside the room. Subodh fired from the licensed gun of his father in order to kill Jagdish. The shot hit on the right side of the head of Jagdish. He fell then and there in his room, blood started oozing. We raised hue and cry from the room that Jagdish had died, but the said people had not retracted from the spot. Then Jogendra said that one had died, we should now leave. Then residents of the village after hearing our cry came at the spot and accused ran away. Chandrapal son of Raghuveer Singh, Mohan Singh son of Dharm Singh and other people of the village had gathered at the spot. They had seen the entire incident. Jogendra was armed with country-made revolver, Dilip was armed with 12 Bore country-made pistol, Sandeep was armed with .12 bore weapon, Boby was armed with .315 bore country-made pistol. We are having litigation over the land with the accused and due to this grudge, they had given beating and had caused murder of Jagdish. We had brought Jagdish in an injured condition in the pick-up jeep of Babulal Sarpanch to the Hospital at Bharatpur where he died."

On the basis of the aforesaid statement (Ex. P.1), a formal FIR (Ex. P.15) bearing FIR No. 585/06 was registered at Police Station Deeg, District Bharatpur under Sections 147, 148, 149, 452 and 302 IPC. A perusal of the FIR (Ex. P.15) reveals that Bharat Singh (P.W. 1) has not uttered any word regarding injuries received by him in the occurrence. As per narration of the facts in the FIR (Ex. P.15), shot fired by Subodh had hit Jagdish and due to this solitary firearm injury, Jagdish had died at the spot. Furthermore, as per FIR (Ex. P.15), occurrence was witnessed by Bharat Singh (P.W. 1) first informant, Kaptan (P.W. 2) another brother of Jagdish deceased and Chandrapal (P.W. 3).

The above said FIR (Ex. P.15) was investigated. The investigating agency submitted charge-sheet against the accused. They were committed by the concerned Magistrate to the court of Sessions and trial was entrusted to the court of Additional Sessions Judge (Fast Track) No. 4, Bharatpur Headquarter, Deeg. The accused were charged for offences under Sections 148, 452, 302, 302/149 and 323/149 IPC and under Sections 3/25 and 5/27 of the Arms Act. They denied the charges and claimed trial.

Bharat Singh appearing in the court as P.W. 1 stated that on 26.11.2006 at 8.00 PM he was inside his room alongwith Kaptan (P.W. 2), Jagdish deceased, Angoori (P.W. 16), Bhagwati (P.W. 14) and Machhla (P.W. 5). At that time, Subodh, Boby, Dilip, Sandeep, Jogender and Bhagwan Singh with a common intention came armed with guns from their roof to the roof of the complainant. They fired shots from the roof, gave abuses and threw brick bats. When Bharat Singh (P.W. 1) came out of the house to see what is happening, then Dilip Singh threw one stone which hit on his head. Then from the shot fired by Boby, one pellet had also hit him on his head. Then accused from wooden ladder came inside the courtyard of the house. They started firing. As Jagdish peeped out of the house, Subodh fired shot with licensed gun of his father and the shot hit Jagdish on right side of his head. Baba Bhagwan Singh exhorted that complainant party be shot. When from the varandha of the house complainant saw that Jogendra was armed with revolver, Dilip was armed with country-made pistol, Sandeep was armed with country-made pistol (Pona) and Boby was also armed with country-made pistol. Subodh was armed with a licensed gun of his father. Jogendra said that one person has already been finished. Then the complainant started crying and then on hearing noise, Mohan and Chandrapal were attracted to the spot and they had also witnessed the occurrence. Then the witnesses brought a vehicle and the injured was brought to Bharatpur. On reaching Bharatpur, Jagdish was declared dead. In the night at about 12.30 AM, SHO arrived and recorded his statement (Ex. P.1). In cross-examination Bharat Singh (P.W. 1) admitted that between complainant party and the accused litigation over land is pending and house of Mohan and Chandrapal are at a distance of one house. However, the witness admitted that he had not stated to the police regarding the injuries suffered by him due to the shot fired by Boby and pelting of stone by Dilip. It will be apposite here to reproduce the exact words of the witness as under:--

The witness has further stated that doors of the house had not received any pellet marks of the shots fired.

Kaptan (P.W. 2) another brother of Jagdish deceased has reiterated as to what was stated by Bharat Singh (P.W. 1). He stated that Dilip pelted a brick bat which hit on the left side of head of Bharat Singh (P.W. 1). Then he received a pellet injury on his head. This witness further stated that when Jagdish peeped out of the window, he received a shot fired by Subodh on his right temporal region.

Chandrapal (P.W. 3) also stated in the court that Dilip and Bhagwan Singh threw stone which hit on the head of Bharat Singh (P.W. 1). He further stated that when Jagdish peeped out of the room, shot fired by Subodh had hit on his head. This witness further stated that Subodh had fired from a distance of 2 1/2 feet.

Machhla (P.W. 5) also stated that Bharat Singh (P.W. 1) had suffered injury on the head and near the left ear due to pelting of brick bat and shot fired.

To similar effect are the statements made by Bhagwati (P.W. 14), Angoori (P.W. 16) and Mohan Singh (P.W. 17).

Thus, witnesses have emphatically stated that due to the shot fired by Subodh, Jagdish deceased received firearm injury and had died. It is further stated by the witnesses that due to pelting of brick bats by Dilip, Bharat Singh (P.W. 1) had suffered injury on the head and furthermore, due to the shot fired by Boby, a pellet had hit Bharat Singh (P.W. 1) on his head.

Having taken note of the evidence of the witnesses, we have been called upon to examine whether Bharat Singh (P.W. 1) had suffered any injury in the occurrence or not?

Before we do so, it will be apposite to note that the prosecution in all examined seventeen witnesses out of which we have already given brief gist of evidence of the eye-witnesses.

After prosecution completed its evidence, statements of the accused were recorded under Section 313 Cr.P.C. All incriminating evidence were put to them. They denied the same and pleaded false implication. In defence, two witnesses were examined. Prem Sagar (D.W. 1) is a forensic science expert. Kashi Ram (D.W. 2) has stated that on 26.11.2006, electricity was restored at 6.05 hrs. and supply from the feeder was stopped at 7.45 PM. Thereafter electricity supply was resumed at 9.05 PM and till 10.30 PM electricity supply remained switched off.

Thus, it is contended before us that night of the occurrence was a dark night as it was Chander Udaya and Moon was not visible and furthermore, since electricity was not there, the witnesses could not identify the assailants.

Shri J.P. Sharma learned counsel for the appellants picking up the thread from the testimony of defence witnesses had stated that it was a dark night, it was wanning moon, no moon light was available and electricity was switched off, therefore, the witnesses could not identify the assailants. It is further stated that Bharat Singh (P.W. 1) was not present at the spot. He is a made-up witness.

Per contra, Shri Aladeen Khan the learned Public Prosecutor has submitted that number of eyewitnesses were examined. They have corroborated the testimony of each-other. As such, implicit reliance can be placed on their testimony.

Before we appreciate the arguments raised before us, it will be apposite to notice the medical evidence.

Dr. Bane Singh (P.W. 7) on 27.11.2006 at 9.30 AM had conducted autopsy on the dead body of Jagdish son of Balbeer Singh and as per post-mortem report (Ex. P.14) had noted following injuries on the person of deceased Jagdish:--

"1. Punctured lacerated wound of size 1.5 cm x 1 cm, cranial cavity deep with blackening and burning of skin around the wound placed over right temporal region just anterior to right ear pinna with clotted blood, upper border obliquely placed suggestive of wound of entry of firearm, fresh injury edges and margin inverted with collar of abrasion.

The above wound going from downwards to upwards obliquely then causing lacerated wound in arch of 16 cm x 13 cm of skull and brain involving right temporal, frontal and right parietal region causing multiple fractures of right frontal, parietal and temporal bones. Few pieces of the bones missing, brain matter of right frontal, right parietal and right temporal bones badly lacerated and few portion of brain missing, brain matter protruding from the wound with clotted blood. Suggestive of exit wound of firearm. Fresh injury."

Dr. Sanjay Sharma (P.W. 6) on 28.11.2006 had examined Bharat Singh (P.W. 1) and as per injury report (Ex. P.11) had found following injuries on the person of Bharat Singh (P.W. 1):--

"1. Punctured wound, 1/4 x 1/4 cm left parietal region, 6 cm below to vertex.

Abrasion, 3 x 1 cm, upper part of left pinna.

Bruise and swelling, 4 x 5 cm, right forearm upper lateral part.

C/o pain in left shoulder."

From a perusal of the evidence given by eyewitnesses and the medical evidence it is apparent that Jagdish had died due to receipt of injury by a solitary single shot fired from a firearm. The witnesses have attributed this shot to accused Subodh. All the witnesses have stated categorically that when Jagdish peeped out of his window, Subodh fired a shot which had hit his head. All the witnesses have also stated that Dilip had pelted a brick bat/stone and the same had hit Bharat Singh (P.W. 1) and from the shot fired by accused Praveen @ Boby, a stray pellet also hit Bharat Singh (P.W. 1) on the left side of his head. No overt act has been assigned to the appellant Jogendra Singh except that he exhorted that one person has been finished.

In the present case, occurrence had taken place on 26.11.2006 before 12.00 a.m. in the night. Statement of Bharat Singh (P.W. 1) was recorded by the S.H.O. Narendra Sharma (P.W. 12) on the same night on 27.11.2006 at 12.30 AM, in pursuance thereof formal FIR (Ex. P.15) was registered at the police station in the night at 2.00 AM, special report had reached the Ilaka Magistrate on 27.11.2006 at 11.00 AM. Thus, there is a delay of 12 hours in reaching of the special report to the Ilaka Magistrate. Considering that Jogendra Singh has pleaded no overt act in the occurrence and had only raised an exhortation, we are of the view that delay of twelve hours in reaching the special report to the Ilaka Magistrate assumes importance. In Bijoy Singh and Another Vs. State of Bihar, AIR 2002 SC 1949 : (2002) CriLJ 2623 : (2002) 2 Crimes 437 : (2002) 1 JT 372 Supp : (2002) 3 SCALE 592 : (2002) 9 SCC 147 : (2002) 3 SCR 179 : (2002) 1 UJ 749 : (2002) AIRSCW 1873 : (2002) 4 Supreme 362 , the Hon''ble Supreme Court has held as under:--

"6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.

Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime.

(Emphasis supplied).

Immediate sending of the report mentioned in Section 157 Cr.P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law.

(Emphasis supplied).

It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it.

In the instant case, the copy of the report referred to in Section 157 Cr.P.C. is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 Cr.P.C., particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be" and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said report in terms of Section 157 Cr.P.C. to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission."

Thus, in our view, Jogendra Singh is entitled to benefit of doubt considering role assigned to him, delay in reaching of the special report taking into account observations made by Hon''ble Apex Court in Bijoy Singh''s case (supra).

Further, the injuries sustained by Bharat Singh (P.W. 1), have been attributed to accused Dilip and Praveen @ Boby. As is stated earlier, Bharat Singh (P.W. 1) has not said anything in the FIR about the injuries suffered by him. The witness has been duly confronted with his previous statement (Ex. P.1) where he is blissfully silent about the injuries caused to him. Again for the sake of repetition, we reproduce the exact portion of statement of Bharat Singh (P.W. 1) as under:--

Furthermore, in the present case occurrence had taken place on the intervening night of 26.11.2006 and 27.11.2006 before 12.00 a.m. in the night. The witness was examined by Dr. Sanjay Sharma (P.W. 6) on 28.11.2006. Thus, the medico-legal examination of Bharat Singh (P.W. 1) was conducted on 28.11.2006 at 3.00 PM, i.e. after delay of 39 hrs. from the time of occurrence. Dr. Sanjay Sharma (P.W. 6) in his cross-examination categorically stated that duration of the injuries suffered by Bharat Singh (P.W. 1) is within 6-8 hrs. and he may have suffered the injuries on 28.11.2006 between 7.00 AM to 9.00 AM. To be precise, the relevant portion of the testimony of Dr. Sanjay Sharma (P.W. 6) is reproduced as under:--

Thus the duration of injuries given by medical expert, belie, assertion of Bharat Singh (P.W. 1) that he received injury in the occurrence.

Furthermore, the Dr. Sanjay Sharma (P.W. 6) admitted that injuries on the person of Bharat Singh (P.W. 1) were superficial and X-ray can be manipulated to reflect radio-opaque shadow. We are cautious of the fact that regarding duration of injuries, the opinion of the expert is not final and the eye-witness cannot be disbelieve until there are various other suspicious circumstances available to do so.

We find no cogent reason as to why Bharat Singh (P.W. 1) was not medico-legally examined on the same night i.e. intervening night on 26.11.2006 and 27.11.2006 especially when he had made statement (Ex. P.1) to Narendra Sharma (P.W. 12), S.H.O., at the hospital at RBM Hospital, Bharatpur. If he had received injuries in the occurrence, his medico-legal examination ought to have been conducted on the same night particularly when at that time he is present in the police station. There is a delay of 39 hrs. in medico-legal examination of Bharat Singh (P.W. 1) from the time of occurrence. At the cost of repetition, we again notice that medico-legal examination of Bharat Singh (P.W. 1) was conducted on 28.11.2006 at 3.00 P.M. Bharat Singh (P.W. 1) himself had given an explanation and stated that S.H.O told him that he shall get him medico-legally examined at Deeg. The exact words stated by the witness in the court are as under:--

What was the necessity to postpone medical examination and get Bharat Singh (P.W. 1) medico legally examined at Deeg when he was present at a very big hospital at the District Headquarters at Bharatpur. Therefore, taking totality of the circumstances that Bharat Singh (P.W. 1) in his statement (Ex. P.1) has not mentioned anything qua his injuries, furthermore when he was confronted by the defence as to why this fact was not recorded in his previous statement (Ex. P.1) recorded by the police under Section 161 Cr.P.C., leads us to the conclusion that the opinion of the Doctor Sanjay Sharma (P.W. 6) that injuries were suffered by Bharat Singh (P.W. 1) within the duration of 6-8 hrs. and the said injuries could relate to 28.11.2006 between 7.00 AM to 9.00 AM cannot be discorded. Hence, we are of the view that the explanation given by Bharat Singh (P.W. 1) not to get himself examined at Bharatpur at the time of giving his statement leading to registration of FIR, his non mentioning of injuries in the statement leading to registration of case i.e. FIR, confrontation brought in light by defence, delay in medico-legal examination, duration of injuries determined by medical expert and nature of injuries lead us to the conclusion that Bharat Singh (P.W. 1) has not received any injury in the occurrence and he has suffered injuries later on. Consequently, we shall exclude the injuries suffered by Bharat Singh (P.W. 1) from the consideration.

As a result of above discussion, accused Dilip Kumar for causing injury with brick bat and Praveen @ Boby for causing a firearm injury to Bharat Singh (P.W. 1) cannot be convicted. Consequently we shall also extend the benefit of doubt to accused Dilip Kumar and Praveen @ Boby.

However, since all the witnesses have very emphatically stated that the shot fired by accused Subodh had hit Jagdish deceased, we uphold the conviction and sentence awarded by the trial court upon accused Subodh since the ocular version qua him stand duly corroborated by the medical evidence.

Consequently, we allow the appeal qua accused appellants Jogendra Singh, Dilip Kumar and Praveen @ Boby. Their conviction and sentence awarded by the trial court is set aside and they are acquitted of the charges framed against them. However, we dismiss the appeal qua accused Subodh Kumar S/o. Man Singh and uphold the conviction and sentence awarded upon him by the trial court.