Radheyshyam and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—The appellant, Radheyshyam, along with four members of his family and his sister Smt. Gobri Bai, have instituted present appeal, under Section 374 of the Code of Criminal Procedure, 1973, in order to assail the judgment rendered by the Court of Special Judge, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Cases, Bundi, whereby Radheyshyam, his three sons, namely Vishnu, Nawalkishore and Rinkesh @ Rinku, his wife Smt. Geeta Bai, and sister Smt. Gobri Bai daughter of Heera Lal, have been held guilty for offences punishable under Sections 147, 148, 302, 302/149 and 323 of Indian Penal Code.

Having convicted the appellants for the above said offences, the trial Court, vide a separate order of even date, sentenced them as under:--

"Accused-appellant No. 2, Vishnu :

Under Section 148 read with Section 147 I.P.C. to undergo one year rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo one month simple imprisonment.

Under Section 323 I.P.C. to undergo three months simple imprisonment and to pay a fine of Rs. 200/-. In default of payment of fine to further undergo seven days simple imprisonment.

Under Section 302 I.P.C. to undergo life imprisonment and to pay a fine of Rs. 2000/-. In default of payment of fine to further undergo one year simple imprisonment.

Remaining accused-appellants No. 1, 3 to 6 :

Under Section 148 read with Section 147 I.P.C. to undergo one year rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo one month simple imprisonment.

Under Section 323 I.P.C. to undergo three months simple imprisonment and to pay a fine of Rs. 200/-. In default of payment of fine to further undergo seven days simple imprisonment.

Under Section 302 read with Section 149 I.P.C. to undergo life imprisonment and to pay a fine of Rs. 2000/-. In default of payment of fine to further undergo one year simple imprisonment."

The trial Court had recorded acquittal of the appellants for offence punishable under Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

In the present case, the criminal proceedings were set into motion on the basis of the written-report (Exhibit-P/1) submitted by Smt. Seema (PW-1), before Guman Singh (PW-8), who on 21.09.2004 was posted at Police Station, Lakheri.

Guman Singh appeared as PW-8 in the Court. He stated that on the oral directions issued by the Station House Officer, he along with Surendra, Constable had visted at M.B.S. Hospital, Kota, wherein injured Goapl was lying admitted. He was in an unconscious state.

Smt. Seema (PW-1), the wife of elder brother of Gopal was present in the hospital. She presented a written-report (Exhibit-P/1). The said report by Surendra, Constable was sent to the Police Station, Lakheri. On the basis of which, subsequently, a formal First Information Report (Exhibit-P/27) was registered.

It will be apposite to reproduce here true translation of the written-report, (Exhibit-P/1), submitted by Smt. Seema (PW-1).

"To,

The In-charge, Police Station, Lakheri Bundi

Subject : Lodging of the report.

Sir,

In the context of above subject, it is submitted that today at about 08:00 A.M. my devar Gopal (younger brother of husband) was making butter milk in the house. I asked her to tie buffalo outside the house and in the meanwhile, I will dab cow dung. My devar was going to tie buffalo, as soon as he reached outside the door, our neighbour Vishnu S/o. Radheyshyam came armed with sabal and caused blow on the head of my devar Gopal with an intention to murder him due to which Gopal fell on the ground. While he was lying fallen, Nawalkishore, Rinku, Radheyshyam, Geetabai, mother of Vishnu and bhua of Vishnu Gobari Bai came. Nawalkishore was armed with kulhari. Rinku was armed with hammer (hatoda). Radheyshyam was armed with stick. Geeta and Gobri were armed with kutera (wooden-baton). While Gopal was lying fallen, they all with the common intention gave beating to him. I came forward to save Gopal and lied over Gopal. While I was saving her, I had received injuries on waist. Meanwhile, Dhanraj came and rescued us. Occurrence was witnessed by Kanha S/o. Ganpat Meena r/o Burakhera, Hemraj S/o. Khana, by caste Gurjar and Mahaveer S/o. Khana Meena. Thereafter, my devar was brought to the hospital at Lakhori by Hemraj S/o. Gauri Shankar, Laxminarayan and Durgarshankar in a jeep and they got him admitted there. Legal action be taken against the accused.

Applicant Seema"

A perusal of the above said written-report reveals that Vishnu had caused sambal injury on the head of Gopal due to which he fell down and while he was lying fallen, five other accused have caused injuries to Gopal.

It is to be noted here that in the present case, occurrence had taken place way back on 21.09.2004 in the morning at 08:00 A.M. at Village Badakhera. Smt. Seema (PW-1) had presented written-report, (Exhibit-P/1) on the very same day i.e. on 21.09.2004 at 01:40 P.M. to A.S.I. Guman Singh (PW-8) at M.B.S. Hospital, Kota.

As stated earlier that on the basis of above written-report, a formal First Information Report was registered. After investigation concluded, report of investigation under Section 173 of Code of Criminal Procedure, 1973, was submitted in the Court of Magistrate concerned. The concerned Magistrate had committed the report of investigation, along with the accused to the Court of Sessions and the trial was entrusted to the Court of Special Judge, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Cases, Bundi.

Smt. Seema, appearing as PW-1 had made material improvements in the Court and stated that when Gopal was going out of the house to tie buffalo, neighbour Vishnu Prasad came armed with sambal. He gave a blow on the head of Gopal due to which he fell down. Meanwhile, his brothers, Nawalkishore and Rinkesh @ Rinku, his father, Radheyshyam, his mother Geeta Bai and Bhua Gobri Bai came and started causing injuries to Gopal. Nawalkishore had given kulhari blow on the head of Gopal from the reverse side. Rinku caused injury with hammer (hatora) on the chest of Gopal, Radheyshyam caused injury with stick and Geeta Bai and Gobri Bai caused injuries with small wooden baton to Gopal. The witness came forward to rescue his devar Gopal and fell upon him. Gopal become unconscious at the spot.

Hemraj (PW-2) stated that on the day of occurrence, he saw Vishnu causing injury with sabal on the head of Gopal from the back side, due to which Gopal had fallen on the ground. Then, Rinku gave an injury with hammer (hatoda) in the abdomen of Gopal. Radheyshyam, father of Vishnu gave injury with lathi to Gopal. This witness stated that two ladies, who were present in the Court, were armed with danda and they also caused injuries to Gopal. This witness further stated that Nawalkishore, who was present in the Court, was armed with kulhari. He gave injury from the reverse side of kulhari on the waist of Gopal. In the house, Gopal and his bhabhi Seema were present.

Durgashankar (PW-4) stated that he was present in house. He heard noise of fighting from the Post Office side. He went there running and saw that Gopal was lying on the ground. Vishnu S/o. Radheyshyam was armed with Saria. Rinku was armed with hammer (hatora). Nawalkishore was armed with kulhari. They had already caused him injuries.

Hemraj (PW-5) stated that on hearing noise, he reached at the spot. At that time, Durgashankar was lifting Gopal. All the six accused were standing opposite the house of Gopal. Nawalkishore was armed with kulhari. Rinku was armed with hammer (hatora). Vishnu was armed with sabal. Radheyshyam and two ladies were armed with stick and small wooden baton.

Dhanraj (PW-6) stated that Vishnu, on the day of occurrence, was armed with sabal. Rinku was armed with hammer. Nawalkishore was armed with kulhari. The mother of Vishnu, his father and bhua were also present. Geeta Bai and Gobri Bai were empty handed. Similarly, Radheyshyam was also empty handed. Vishnu caused injury with sabal on the head of Gopal. Rinku gave injury with hammer on the chest of Gopal.

Having noted the above said statements of the witnesses, it is time for us to note the medical evidence.

Dr. G.S. Vishwar (PW-9), being Medical Jurist that time, had medico-legally examined Gopal on 21.09.2004 at 11:50 A.M.

As per injury report (Exhibit-P/6), he had noted the following three injuries on the person of Gopal injured:--

"1. Abraded haematoma 2x 1 cm present on left parietal region longitudinally.

Abrasion 2x 3/4 vertically present on anterior aspect of left shoulder.

Diffused swelling over right forearm"

This witness stated that Gopal died in the hospital and his Post-Mortem was conducted on 22.09.2004 at 10:00 A.M. He had found the following injuries on the person of deceased Gopal:--

"1. Abraded haematoma 2x 1 cm present on left parietal region longitudinally.

Abrasion 2 x 3/4 vertically present on anterior aspect of left shoulder.

Diffused swelling over right forearm"

Besides the above injuries, he had found fracture of right and left temporal bone. As per opinion of the doctor, the cause of death was coma as a result of ante-mortem head injury, which was sufficient to cause death in the ordinary course of nature.

As stated earlier, occurrence had taken way back on 21.09.2004 at 08:00 A.M., report to this effect was submitted on 21.09.2004 at 01:40 A.M. and the case was registered at Police Station, Lakhari on the same day at 04:30 P.M. The special report had reached at Illaqa Magistrate, Lakheri on 22.09.2004 at 03:00 P.M.

Thus, there is a delay of twenty-three hours in reaching of special report to the Illaqa Magistrate. The Police Station, Lakheri, the Court and residence of Judicial Magistrate, 1st Class, Lakheri are situated in the same town. Lakheri is a small town. There is not much distance between the Police Station, the residence of Magistrate and the Court of Magistrate. No explanation has been offered regarding delay in reaching of the special report.

What is the effect of delay in reaching of the special report, this question has been raised by the counsel appearing for the appellants, to urge that we should throw out the entire case of the prosecution.

Taking totality of evidence which has emerged before us, we are of the considered opinion that delay in reaching of special report, per se, is not fatal to the case of the prosecution.

The Hon''ble Supreme Court in the case of 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 , while considering the effect of delay in reaching of special report, has observed 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 CrPC 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 CrPC 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 CrPC, 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 CrPC 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."

In the light of the observations, made by the Hon''ble Supreme Court in the case of Bijoy Singh (supra), we cannot rule out that in the present case, testimony of eyewitness suffers from embelishment, and as result of after thought, improvements have crept in their evidence. Thus, by applying rule of prudence, we shall sift the grain from the chaff.

Taking into consideration the observations made by the Hon''ble Apex Court and the delay in reaching of the special report, we are of the view that the Court must be on guard and circumspect to accept prosecution case.

In the written report, (Exhibit-P/1), first blow on the head of Gopal is attributed to Vishnu. It is stated in the written-report itself that thereafter Gopal had fallen on the floor. There were two abrasions one on the shoulder and another on forearm. As per opinion of the doctor, injury Nos. 2 and 3 can be result of fall . The witnesses by improving their case had widened the net, too, far to inflate the number of accused. They have also implicated Radheyshyam, father of Vishnu, his two brothers, namely Nawalkishore and Rinkesh @ Rinku, mother of Vishnu, Geeta and his bhua, (sister of father). Though, there are contradictions between the testimony of the witnesses, so far as role assigned to Nawalkishore, Rinkesh @ Rinku, Radheyshyam, Smt. Geeta Bai and Smt. Gobri Bai are concerned, the witnesses are consistent that after Vishnu had caused blow when he entered into the house of Gopal and due to causing that injury, Gopal fell on the ground. For three injuries, one which is on the head, which proved fatal and for two abrasions, which can be result of fall, six persons have been implicated.

Dhanraj (PW-6) stated that Radheyshyam, Geeta and Gobri Bai were empty handed. This witness stated that Rinkesh @ Rinku has caused hammer blow on the chest or abdomen of the deceased. No such injury has been found in the medico-legal evidence. It is further stated by the witnesses that Nawalkishore had given a blow from the reverse side of Kulhari on the head of deceased. But there is only presence of one injury on the head of deceased, which is attributed as first injury to Vishnu.

In the written-report, (Exhibit-P/1), it has been specifically stated that Vishnu caused sabal blow on the head of Gopal and while he was lying fallen, others have caused injuries. Injuries attributed to the others accused, except Vishnu, have not been specified. Injuries attributed to them are not found in the medical evidence.

Seema (PW-1) was not medico-legally examined, thus, there is no injury present on her person.

Taking totality of circumstances, we are of the view that the delay in reaching of the special report was used for consultations and the deliberations for over implication of the accused and the entire family of Radheyshyam has been involved.

In view of the medical evidence, contradictions between the statements of the witnesses and the delay in reaching of the special report, as a matter of abundant caution, we shall extend the benefit of doubt of appellant No. 1, Radheyshyam; and appellant Nos. 3 to 6, namely Nawalkishore, Rinkesh @ Rinku, Smt. Geeta Bai and Smt. Gobri Bai as injuries attributed to them have not been found in medical evidence. Thus, by setting aside the judgment of conviction and order of sentence pronounced by the trial Court, the appellant No. 1, Radheyshyam and appellant Nos. 3 to 6, namely, Nawalkishore, Rinkesh @ Rinku, Smt. Geeta Bai and Gobri Bai are, hereby, acquitted from all the charges.

However, we find no merit so far as appellant No. 2, Vishnu is concerned, as specific blow has been assigned to him. which has resulted into death of Gopal.

Consequently, the present appeal, qua appellant No. 2, Vishnu is hereby, dismissed confirming the finding of conviction and sentence returned by the trial Court and remaining appellants are acquitted.

Resultantly, the present appeal is disposed of in above terms.