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Judgment
This appeal has been filed by the
appellants, being aggrieved by the judgment dated
05.07.1994, passed by Sessions Judge, Raisen in S.T.
No. 127/1993, whereby appellants have been found
guilty for the offence punishable under Section 302 of
the Indian Penal Code and have been sentenced to life
imprisonment and fine of Rs.2,000/- each.
Appellant No.2, Khemchand expired during
the pendency of the appeal and his name was deleted
on 29.07.2011.
The prosecution story, in a nutshell is that
on 30.03.1993, at around 12.30 P.M., Balbir Kaur
(P.W.-3) lodged a Dehati Nalishi (Ex.P-14) at Ambadi
Chowki, Raisen that she alongwith her son Amit were
proceeding towards their field at village Jogipura. At
about 11.30 A.M., when they reached near the field of
Hari Patel, four accused persons, armed with sword,
axe and farsa, came out suddenly from behind the
wheat corps, attacked and assaulted her son, who later
on succumbed to the injuries. According to her, the
incident was witnessed by Narayan Singh (P.W.-4),
who was going by bullock cart and Tularam and his son
Khushilal, who were working in the nearby field.
On the basis of Dehati Nalishi (Ex. P-14), FIR
(Ex. P-17) was recorded at Police Station, Salamatpur
and the subsequent investigation followed. Inquest
report was prepared at 4.00 P.M. and the body was
sent for post mortem at 7.30 P.M., which was
conducted by Dr. Surendra Singh Kushwaha (P.W.-6),
who found as many as 19 ante-mortem injuries on the
body of the deceased. Dr. Kushwaha also found that
stomach of deceased contained partially digested food
material.
The trial Court after analyzing the oral and
documentary evidence on record has recorded a
finding against the appellants and sentenced them as
mentioned hereinabove, relying mainly on the
evidence of eye witnesses Balbir Kaur (P.W.-3) and
Narayan Singh (P.W.-4).
It is contended by learned Sr. Counsel
appearing for the appellants that the case of
prosecution rested solely on the evidence of Balbir
Kaur (P.W.-3), whose presence itself at the place of
occurrence was doubtful, as the other eye witness
Narayan Singh (P.W.-4) was only a chance witness and
belonging to same Sardar Community. According to
the learned Sr. Counsel, it was a blind murder and
since none of the alleged eye witnesses had actually
seen the incident, they had roped in the appellants on
account of previous enmity between them. According
to the learned Sr. Counsel, the medical evidence is in
conflict with and does not support the story put up by
Balbir Kaur (P.W.-3). Taking this Court through the
evidence of Balbir Kaur (P.W.-3), Gurdayal Singh
(P.W.-1) and the post mortem report (Ex.P-16), it is
pointed out that according to Gurdayal Singh (P.W.-1)
and Balbir Kaur (P.W.-3), the deceased proceeded from
Bhopal after taking only tea, whereas according to Dr.
Surendra Singh Kushwaha (P.W.-6), there was semi
digested food in the small intestine, taken atleast 3-6
hours prior to the death. Dr. Surendra Singh
Kushwaha (P.W.-6) had opined that the death took
place 24-36 hours prior to the post mortem. Thus,
placing the time of occurrence in the early hours of
30.03.1993, implying thereby that the occurrence took
place much earlier than as alleged by the prosecution.
It is submitted by the learned Sr. Counsel
that the FIR has been ante-timed, as the daily diary
number does not found mention in the FIR. According
to him, the mandatory provisions of Section 157 of the
Cr.P.C . was not followed, hence no sanctity could be
attached to the date, time and the statement made in
the FIR. It is further pointed out that as the
Investigating Officer of the case was not examined, the
same has caused prejudice to the case of appellants.
The independent eye witnesses, Tularam and Khushilal,
mentioned in the FIR have also not been examined. It
is submitted that these aspects were not considered in
proper perspective by the trial Court, hence, the
findings recorded by the Trial Court are perverse and
deserves to be set aside.
In support of the submissions, the learned
Sr. Counsel for the appellants has placed reliance upon
the judgment of Privy Council reported in AIR 1941 PC
11 (Ismail Ahmed Peepadi Vs. Momin Bibi and others)
and of the Supreme Court rendered in the case of
State of Haryana Vs. Lakhbir Singh and another
AIR 1990 SC 2154.
The learned counsel appearing for the
respondent/State, on the other hand, urged that the
trial Court has properly analyzed the oral and
documentary evidence on record and has correctly
reached to the conclusion and thus calls for no
interference. It is submitted that the evidence of
P.W.-3 Balbir Kaur and P.W.-4 Narayan Singh are in
conformity with the case made out in the FIR. Hence,
for non-examination of the Investigating Officer, the
trial could not be said to be vitiated. In support of his
submissions, the learned counsel appearing for the
State has placed reliance on the judgment of the
Supreme Court in the cases of Behari Prasad and
others Vs. State of Bihar (1996) 2 SCC 317 and
Ramdeo and another Vs. State of U.P. (1995)
Suppl (I) SCC 547.
We have heard the learned counsel for the
parties at length and carefully and meticulously
perused the record of the trial Court and the evidence
adduced by the prosecution and the case laws cited by
them.
From the statements of Balbir Kaur (P.W.-3),
the alleged eye witness and Gurdayal Singh (P.W.-1), it
is clear that their existed previous enmity between the
parties. According to Balbir Kaur (P.W.-3), she
alongwith her son (deceased) reached the fields of Hari
Patel, at about 11.30 A.M. She was walking 20-25
paces behind her son, when she saw the four accused
persons hiding behind the wheat crops, who suddenly
attacked and assaulted and inflicted injuries to the
deceased with sword, axe and farsa. According to
P.W.-3, she ran towards the son but was threatened by
the accused persons, hence did not do anything. After
the accused persons ran away, she went to her son
and found that he had succumbed to the injuries. She
had further stated that she fainted and was given
water by the ladies working in the nearby fields. She
has also stated that Narayan Singh (P.W.-4), who was
passing by bullock cart and Tularam and Khushlal, who
were working in the adjoining field had also seen the
occurrence. In her cross-examination, she admitted
that she did not try to save her son nor called anybody
for help. She has stated that she did not touch her
dead son who was lying face down. She had further
added that she walked down 4 kms to Chowki Ambadi
to report the incident, where Dehati Nalishi (Ex. P-14)
was recorded at 12.30 P.M.
From the perusal of deposition of another
eye witness Narayan Singh (P.W.-4), it is apparent that
he did not make any attempt to save the deceased
and ran away as he was terrorized by the accused
persons. He had admitted that he did not call for help
or thought it fit to inform anybody about the incident
nor went to report it and only after three days of the
incident, the police recorded his statement.
Dr. Surendra Singh Kushwaha (P.W.-6), Asst.
Surgeon, who conducted the autopsy had opined that
the death of deceased took place about 24-36 hours
prior to the time of post mortem. The doctor had
found semi digested food material in the stomach,
which according to him was taken 3-6 hours prior to
the death. Thus, the presence of semi digested food
and the rigor mortis present in the legs of the
deceased would imply that the occurrence had taken
place much earlier in the early hours of 30.03.1993
and not at 11.30 A.M., as alleged by the prosecution.
Narayan (P.W.-2), village Chowkidar and
Mehadi Ali Khan (P.W.-5), witnesses of memorandum
and seizure have not supported the prosecution case.
FSL report does not say that the blood found on the
articles was human blood, hence the seized articles
cannot be connected with the crime and the recovery
is doubtful and no help to the prosecution.
In the case of Meharaj Singh (L/Nk) Vs.
State of M.P. (1994) 5 SCC 188, the Supreme Court
has laid down the external checks for determining
whether the FIR was anti-timed :-
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 prompt lodging of the FIR is to obtain the earliest information regarding the circumstance 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 eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after thought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr. P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW8.
In the instant case, Constable Inder Singh
(P.W.-7) has deposed that he took the Dehati Nalishi to
Salamatpur Police Station for recording of FIR
(Ex. P-17). However, from a perusal of Ex.P-17, it is
evident that the same was recorded at 2.00 P.M. on
30.03.1993, but the daily diary number is missing from
it. Similarly, the inquest report (Ex.P-1), prepared at
4.00 P.M. did not mention the details of incident, FIR,
crime number or the name of the accused persons.
Absence of these details in the inquest report indicate
that the prosecution story was still in an embryo state
and has not been given any shape and the FIR was
recorded later after due deliberation and consultation.
Apart from the above, there is nothing on record to
show as to when did the copy of the FIR that was
required to be sent promptly to the concerned
Magistrate as per the statutory provision of Section
154 Cr.P.C. read with Section of the 157 Cr.P.C ., was
actually sent or received by the concerned Magistrate.
Since the Investigating Officer has not been examined,
no evidence has been led in this regard by the
prosecution. The FIR was required to be proved by its
scribe. However, non-examination of the Investigating
Officer has cast a serious doubt about the veracity of
the FIR and it could not have been used as a
substantive piece of evidence of the truth of its
contents. The other independent eye witnesses
Tularam and Khushilal, who witnessed the occurrence
and the woman, who gave water to Balbir Kaur (P.W.-
3), who could have thrown light on the manner of
occurrence had also not been examined.
It is settled law that no particular number of
witnesses are required in a case for the proof of any
fact and therefore, it is permissible for a Court to
record and sustain conviction on the evidence of
solitary eye witness provided the evidence tendered by
such witness is cogent, reliable, unimpeachable and of
sterling quality. However, where the evidence of the
sole eye witness is in conflict with other evidences, it
would be unsafe and unreasonable to convict the
accused on his testimony.
There is, much force in the contention of
learned Sr. Counsel that it was a blind murder and
none of the eye witnesses were actually present at the
scene of incident, which is also obvious and apparent
from the statement of Balbir Kaur (P.W.-3), mother of
the deceased, her conduct was so unnatural that she
not only did not try to save her son nor tried to go near
her son nor called anyone for help, despite the fact
that number of persons were working in the adjoining
fields. In a situation like this, the normal conduct of a
a mother would be to make effort to save her son,
even by taking blow on herself or to call for help.
Apart from the aforesaid facts, instead of sending the
other persons, who were present at the place of
occurrence, to report the incident, she left the dead
body of her son all alone and walked 4 kms to lodge
the Dehati Nalishi.
Balbir Kaur (P.W.-3) has specifically stated
that both she and her son (deceased) had consumed
only tea before proceeding towards their village.
However, in wake of the evidence of Dr. Surendra
Singh Kushwaha (P.W.-6), who found semi- digested
food in the intestine, the incident could not have taken
place at the time alleged. Contrary to her earlier
statement that she did not touch her dead son, who
was lying face down, she has stated that her clothes
got blood stained when she held her son in her lap, but
the same were not seized to establish her presence on
the place of occurrence. In view of the aforediscussed
major contradictions and omissions in the statement of
witnesses, the non-examination of the Investigating
Officer has caused prejudice to the accused as they
were deprived of the opportunity to effectively cross-
examine the witnesses and bring out the
contradictions.
Similarly, conduct of P.W.-4 Narayan Singh,
in not disclosing the incident either to the police or to
anyone else, creates suspicion and renders his version
doubtful. The aforestated facts go to show that these
witnesses in all probability were not present at the
spot.
It is pertinent to note that Balbir Kaur
(P.W.-3) named Tularam and Kushilal and other person
who gave her water as eye witnesses, but the
prosecution has not examined them. Thus, it would be
fair to presume that they were perhaps not prepared to
support the false case. The trial Court while convicting
the appellants, did not deal with these various
infirmities.
In view of the infirmities and the
contradictions, we are of the considered opinion that
the prosecution has failed to prove the case against
the appellants beyond reasonable doubt and they are
entitled to benefit of doubt. This appeal deserves to
be and is hereby allowed. The conviction and
sentence recorded vide judgment dated 05.07.1994
passed in S.T. No.127/1993 by Sessions Judge, Raisen
are set aside. The appellants are acquitted of the
alleged offence punishable under Section 302 of the
Indian Penal Code.
The appeal filed by the appellants is
allowed. The appellants, who are on bail shall be
discharged of their bail bonds.