State of Rajasthan @APPELLANT@Hash Mahendra Singh

Mohammad Rafiq, J

This criminal appeal has been filed by the State of Rajasthan with leave of the Court against judgment and order dated 25.07.1990 passed the Court of

learned Special Judge, Dacoity Affected Area, Bharatpur, in Sessions Case No.15/1989, whereby the trial court has acquitted as many as 24 accused

of the charge under Sections 147, 302/149, 449, 323/149 and 325/149 of the Indian Penal Code. This Court, while declining the leave to the State of

appeal against acquittal of other 23 accused, granted such leave against only accused-respondent Mahendra Singh.

Brief facts of the case are that a written report was submitted by Puran (PW-2) under the signature of his brother Badan Singh (Badani) (PW-1) on

04.06.1988 with regard to the incident of previous day to Shri Narpat Singh, Station House Officer, Police Station Nadbai, alleging that there was a

political rivalry between the accused-party and the complainant-party over a dispute of Panchayat elections. The accused entered the house of the

complainant on 03.06.1988 at 8:00 AM armed with ‘lathis’. They were also having bricks and stones etc. They attacked and gave beating to

Prabhu, Puran Singh, Ranno and Badani by ‘lathis’, bricks, stones and kicks and fists and caused them grievous injuries. Accused Mahendra

Singh had wire-wrapped ‘lathi’ in hands. He inflicted ‘lathi’ blow on the head of Prabhu. Shivram and Dharam Singh caused injuries on

the shoulder of Badan Singh by pelting bricks at him. Accused Munna inflicted a ‘lathi’ blow on the face of Puran Singh. Jagveer inflicted a

‘lathi’ blow on the forearm of right hand of Ranno S/o Prabhu. Atar Singh also caused injuries to Ranno on his right occipital region by pelting

bricks at him.

Radhey also caused injuries to Ranno by pelting bricks on his face. Remaining accused caused injuries to the members of the complainant party by

‘lathis’, bricks and kicks and fists. Prabhu sustained fatal injury on the head and his condition was critical. Other villagers intervened to save

them. Prabhu and other three injured were taken to Hospital at Nadbai.

The police on receipt of aforesaid written report lodged the F.I.R. Prabhu was later taken to General Hospital, Bharatpur, where he succumbed to

injuries on 08.06.1988 and therefore the offence under Section 302 IPC was added. Charge-sheet against 24 accused was filed for offence under

Sections 147, 302/149, 449, 323/149 and 325/149 IPC and charges for the alleged offences were levelled against them, which they denied. The

prosecution examined 12 witnesses and exhibited 25 documents.

Learned trial court, vide impugned judgment and order dated 25.07.1990 acquitted all the accused, hence this appeal.

Mrs. Sonia Shandilya, learned Public Prosecutor, submitted that as per the allegations in the written report dated 03.06.1988, the accused party came

together in a mob of 24 persons and attacked the complainant side while they were sitting in their house on ‘chabutra’ (platform). Badan (PW-

1), Puran (PW-2), Ranno Singh (PW-3), Bhagwan Dei (PW-5) and Raj Kumari (PW-6) also sustained injuries. The testimony of injured eye-

witnesses finds corroboration as regards the factum of motive of incident, which cannot be disbelieved on the basis of minor contradictions in the

statements. In this regard learned Public Prosecutor has relied on a judgment of the Supreme Court in Sheesh Ram v. State of Rajasthan â€" (2014) 3

SCC 689, wherein it has been held that corroborative statements of injured eye witnesses cannot be disbelieved.

Learned Public Prosecutor submitted that the prosecution story starts with lodging of written report dated 03.06.1988, written by Badan (PW-1) and

handed over to Puran (PW-2), who submitted the same at Police Station Nadbai on 04.06.1988. Delay of one day in submitting the written report is

fully explained by Badan in his statement that he first took his severely injured brother to the Hospital at Nadbai and then to Bharatpur, and, therefore,

he could not immediately go to the police station to submit the report. He gave the written report to Puran, who submitted it next day. As Puran was

also injured therefore he was also taken to hospital on the same day and also accompanied Badan to Bharatpur Hospital and therefore he submitted

the report on the next day. Such minor delay in the present case is therefore not at all fatal to the prosecution as it has been properly explained. Trial

court was further wholly unjustified in disbelieving the case of the prosecution. Reliance in this regard is placed on judgments of the Supreme Court in

Ashok Kumar Choudhary and Others Vs. State of Bihar - (2008) 12 SCC 173 and Ravinder Kumar and Another Vs. State of Punjab - (2001) 7 SCC

690, which were followed in its subsequent judgment in Muttaicose @ Subramani Vs. State of Tamil Nadu - AIR 2017 SC 3117.

Learned Public Prosecutor contended that after lodging of the F.I.R. by Puran on 04.06.1988, Narpat Singh, S.H.O., (PW-12), to whom the report

was submitted, recorded statements of Puran under Section 161 Cr.P.C. on the same date and proceeded with the investigation. He went to the

hospital. On 05.06.1988 he made site plan and recorded the statements of injured persons. In the cross-examination he has stated as well that on

04.06.1988 also he went to the spot at 03:00 pm and came back at 06:00 pm but on that day he could not find any witness and therefore he came back

and again went to the spot the very next day. He has also stated in his cross-examination that the F.I.R. was dispatched to the concerned Court on the

same date i.e. 04.06.1988 but reached the court on 06.06.1988 because 4th June was Saturday and 5th June was Sunday. Therefore such delay can

be attributed to the investigating agency in sending the F.I.R. to the Court after two days. Learned trial court completely ignored/overlooked this fact

and arrived at erroneous finding in para 25 of the judgmnet that there was a delay of 50 hours in sending the F.I.R. to the Magistrate, which is against

the provision of Section 157 Cr.P.C. It was also held by the trial court that this was due to false and corrupt attitude of the Police Officer. Such

observations were totally misconceived and cannot be sustained in the eyes of law.

Learned Public Prosecutor next contended that the present one is a case of direct evidence and prosecution has proved its case beyond reasonable

doubt. The investigation carried out by the Investigating Officer was prompt. One wire-wrapped ‘lathi’ was recovered at the instance of the

accused after his arrest on 23.07.1988. Special Public Prosecutor was not given the permission to prove disclosure statement about ‘lathi’ and

recovery memos of ‘lathi’, which were already on record. This is evident from the statement of Narpat Singh (PW-12). Investigation was

carried out in prompt manner and after recording statement of injured witnesses on 04.06.1988 and 05.06.1988, the injury-reports were collected, site

plan was prepared. After the death of Prabhu on 08.06.1988 his inquest report was prepared on the same date, postmortem was got conducted and

his blood smeared clothes were seized. On 23.07.1988 accused Mahendra Singh was arrested and ‘lathi’ was recovered at his instance. On

04.06.1988, cross F.I.R. No.99/1988 was lodged against Prabhu and others for offence under Sections 147, 323, 325 and 452 IPC by Raghuveer Singh

(Exhibit D-7). Narpat Singh (PW-12) has stated in reexamination that after investigation, the case against Prabhu and others was found to be false

and therefore he submitted negative final report. Thus, when the case of the prosecution is fully proved by statements of injured eye-witnesses and

corroborated by medical evidence, accused cannot be given benefit of minor lapses in investigation. Reliance in this regard is placed on a judgment of

the Supreme Court in Sudha Renukaiah and Others Vs. State of Andhra Pradesh - (2017) 13 SCC 81.

Learned Public Prosecutor also contended that the finding of the trial court to the effect that the testimony of interested or related eye-witnesses

cannot be believed, is completely perverse and illegal. The findings arrived in this regard cannot be accepted because there is no reason why related

witnesses would give false statements. On the contrary, the testimony of interested witnesses is of great importance since no relative of the deceased

would want to spare real culprit. Reliance in this regard is placed on a judgment of the Supreme Court in Upendra Pradhan Vs. State of Orissa -

(2015) 11 SCC 124. Learned Public Prosecutor also argued that the motive of the accused-party is also evident from the statements of injured eye-

witnesses and Pyare Lal (PW-7), who stated the incidnet with Muli Ram which took place on the same day prior to the present incident and they

reached the spot just after the incident which further strengthens the prosecution story and therefore the reasons given by the trial court for

completely disbelieving the incident and acquitting all the accused persons is perverse.

Mr. Anurag Shukla, learned counsel for accused-respondent, supported the impugned judgment and submitted that the trial court has rightly acquitted

the accused-respondent of all the charges. He argued that the incident took place on 03.06.1988 at 08:00 AM and FIR was lodged on 04.06.1988.

Delay in lodgement of the FIR has not been properly explained by the prosecution. That fact has been elaborately discussed by the trial court while

acquitting the accused-respondent. Learned counsel argued that as per Puran Singh (PW-2), the police came at the spot and took injured Prabhu,

Badni, Ranno and other injured in its Jeep. Badni has lodged the FIR but he did not handover that FIR to the police. It is thus clear that on the same

date the police came to know about the incident. Even then, the FIR was registered on 04.06.1988 which creates a serious doubt on the prosecution

case, which has been elaborately discussed by the trial court. As per statements of Puran and Badni, Nadbai Police Station and Tehsil are situated in

the same premises and Badan Singh (PW-1) got the FIR drafted from deed-writer on 03.06.1988 itself, which was prepared prior to reference of

Prabhu at Bharatpur. This fact has been explained by Mooliram (PW-4). Puran (PW-2) has also admitted in his statement that he remained present at

Nadbai. He also admitted that on 03.06.1988 at 5:00 PM a policeman came along-with them at Bharatpur to get Prabhu Singh admitted in Hospital.

The trial court has also mentioned the fact that the FIR was drafted 24 hours prior to its lodgement but the paper on which the FIR was drafted is

very plain meaning thereby there were no marks that it was folded, which shows that the FIR was prepared after medical examination of Prabhu and

other injured witnesses.

Learned counsel for the accused-respondent next argued that the incident took place on 03.06.1988 at 8:00 AM and as per Puran Singh (PW-2) the

police came on the spot and took the injured to Hospital but even then the FIR was lodged on 04.06.1988. The F.I.R. (Exhibit P-2) was sent to area

Magistrate on 06.06.2018 and thus there is delay of more than 50 hours in sending the same, which has not been explained by the prosecution. The

trial court has specially mentioned in para 25 of the judgment that Narpat Singh (PW-12) has stated in the statement that he received the information

on 04.06.1988 at 8:00 AM on which the FIR (Exhibit P-2) was registered and sent to the area Magistrate on 06.06.1988 at 9:30 AM. It is also argued

that the trial court has taken into consideration the fact that all the witnesses are interested witnesses and the material and independent prosecution

witnesses have been withheld by the prosecution. The trial court in para 29 of the judgment has appreciated the evidence produced by the prosecution

and it has found that the prosecution has not come with clean hands and suppressed the material witnesses. It is submitted that the trial court has

taken into consideration the fact that there was enmity between the parties and this fact has been discussed by the trial court in para 30 and 31 of the

judgment. In para 32, the trial court has specifically mentioned that the accused has no motive to commit the murder of the deceased.

It is further argued that the trial court has, in para 23 of the judgment, taken into consideration the defence version. The trial court has made discussion

regarding the incident which took place on 04.06.1988, Raghuveer submitted first information report. This has been admitted by Narpat Singh (PW-12)

but in that case the police filed negative final report. In the report submitted by Raghuveer, it was specifically mentioned that Raghuveer and his wife

Barfi sustained injuries in the same incident and their medicolegal reports are Exhibit D-10 and Exhibit D-11. The FIR lodged by Raghuveer is Exhibit

D-7. The injuries sustained by Barfi and Raghuveer were examined by Dr. Bhopal Singh (PW-10). Question with regard to the injuries sustained by

Raghuveer and Barfi was put to every witness but they denied the injuries sustained by Raghuveer and Barfi. Their injuries have not been explained

by the prosecution. Therefore, the prosecution has suppressed the genesis of occurrence and the trial court has rightly extended benefit of doubt and

acquitted accused-respondent Mahendra Singh and other co-accused.

It is further argued that the trial court after appreciating the evidence has given a graphical description of the injuries sustained by the injured. It was

not possible for the prosecution witnesses to give graphical description of the role of the accused, more particularly when there were 24 persons who

attacked the injured, therefore, the prosecution has not come with clean hands and lodged the FIR with inordinate delay after getting their medical

examination. The prosecution has miserably failed to prove the case beyond reasonable doubt. It has not been established that accused Mahendra

Singh inflicted injuries on the deceased. The trial court, after appreciating the entire evidence, acquitted accused-respondent Mahendra Singh of all the

charges, which does not require any interference by this Court.

We have given our thoughtful consideration to rival submissions and perused the material on record.

We will confine ourselves to examination of the correctness of the impugned judgment only to the extent of acquittal of accused Mahendra Singh

because leave to file appeal has been granted only against him. A bare perusal of the impugned judgment indicates that the trial court has disbelieved

statements of the eye-witnesses, whose testimony has been corroborated by evidence because it found that the written report was lodged with delay

of one day and that it was sent to the area Magistrate after 50 hours coupled with this fact, the trial court in its judgment has attached much

significance to the aspect of delay in lodgement of the F.I.R. and on that basis concluded that this gave time to the complainant party to make

consultation and, after getting the medico-legal reports of the injured persons prepared, prepare the complaint. The trial court has gone to the extent of

saying that the complainant party fabricated the medico-legal reports, which is why the written report was submitted with delay and the same was

sent to the area Magistrate with further delay. Then the trial court observed that as per admission of Badan (PW-1) and Puran (PW-2), the complaint

was got written by deed-writer in the office of the Tehsildar and that the Tehsil and the Police Station were situated in the same premises. There was

then no reason why the F.I.R. was submitted on the next date. Badan Singh (PW-1) in his statement has explained this aspect by saying that he took

the injured brother to Hospital and since there was danger to his life, his priority was to attend him and he was taken to Bharatpur. Therefore, he could

not immediately submit the written report but he gave the written report to Puran who submitted the same on the next date, but Puran himself was

injured and therefore he too was taken to Hospital on the same day and accompanied Badan to Bharatpur, therefore on return from Bharatpur he

submitted the written report on 04.06.1988. As far as delay of one day in submission of the written report by Puran (PW-2) has thus been

satisfactorily explained by these two witnesses.

Coming now to the aspect of delay in sending the F.I.R. to the Magistrate, it is evident from the statements of the prosecution witnesses that after

receipt of the written report and the lodgement of the F.I.R., he recorded the statement of the prosecution witnesses under Section 161 of the Code of

Criminal Procedure on the same day i.e. 04.06.1988 and proceeded for further investigation. He even visited the Hospital on the following day i.e.

05.06.1988. He reached the spot and prepared the site plan. In cross-examination, he has admitted that he went on the spot and place of incident on

05.06.1988 and returned back at 6:00 PM but on that day he did not find any witness present there. He went to the place of incident on the next day

i.e. 06.06.1988. He recorded statement of Puran under Section 161 of the Cr.P.C. on 04.06.1988 (Exhibit D-2). He recorded statement of Badani @

Badan Singh (Exhibit D-1), Muliram (Exhibit D-4), Smt. Bhagwan Dei (Exhibit D-5) and Raj Kumari (Exhibit D-6) on 05.06.1988. As to the question

precisely why the delay was caused in sending the F.I.R. to the Magistrate, this witness, in cross-examination, submitted that though the F.I.R. was

dispatched on 04.06.1988 but it reached the Court of Magistrate on 06.06.1988 because 5th happened to be a Sunday. It may be noted that on

06.06.1988 the F.I.R. reached the Magistrate at 09:30 AM i.e. in the early hours of the day. And fact that in the matter even cross F.I.R. lodged by

the accused party was also received by the Magistrate at 9:20 AM on 06.06.1988, which too was lodged at 9:10 AM on 03.06.1988. Even if it is taken

that there was delay of one day in sending the F.I.R., the same cannot be said to be so fatal to the prosecution that the testimony of all the eye-

witnesses should be out-rightly rejected on that basis.

Coming now to the statement of eye witnesses, Badan Singh (PW-1) has stated that all the accused came to their house together. Mahendra Singh at

that time was having a ‘lathi’, which was wrapped with wire to further strengthen it. Other accused had simple ‘lathis’ in their hands. His

brother Prabhu with folded hands requested the accused not to subject him to beating. Even then, accused started beating him. Mahendra Singh

inflicted a ‘lathi’ blow on the left side of parietal bone of Prabhu Singh, who then and there fell on the ground. In cross-examination, this witness

has stated that Mahendra Singh continued to inflict ‘lathi’ blows on the person of Prabhu Singh while he lay on the ground. Puran (PW-2) has

also similarly stated that Mahendra Singh had a wirewrapped ‘lathi’ in his hands. He inflicted a ‘lathi’ blow on the right side of the head

of the deceased. Ranno Singh (PW-3) has also similarly stated that Mahendra Singh inflicted a ‘lathi’ blow on the head of his father Prabhu, as

a result of which, he fell on the ground and became unconscious. Mooliram (PW-4) is a witness of hearsay but even then he has stated that so soon

he entered the house, Ranno told him that Mahendra Singh has inflicted a ‘lathi’ blows on the head of Prabhu. Bhagwan Dei W/o Mooliram

(PW-5) has also stated that Mahendra Singh inflicted two ‘lathi’ blow on the head of Prabhu, elder brother of her husband, as a result of which

he fell on the ground. Raj Kumari W/o Puran Singh (PW-6) has also stated that Mahendra Singh inflicted a ‘lathi’ blow on the head of Prabhu,

as a result of which he fell on the ground and that the quarrel started immediately upon inflicting the ‘lathi’ blow by Mahendra Singh on the head

of Prabhu. Narpat Singh (PW-12) has proved all stages of investigation. He has stated that he recorded the police statement of Puran on 04.06.1988

at Police Station itself. Then he recorded statements of Badani @ Badan Singh, Mooliram, Smt. Bhagwan Dei, Rajkumari and Smt. Geeta on

05.06.1988. He also obtained the injury reports of Prabhu, Badan Singh, Puran Singh, Ranno Singh, Rajkumari, Bhagwan Dei and Geeta Devi from the

hospital.

Injury report (Exhibit P-8) of Prabhu was prepared by Dr. Sukhram (PW-8). He has stated that he medically examined Prabhu at 11:30 AM on

03.06.1988, whose first injury was a lacerated wound in the size of 4x1cm x bone deep on the left parietal region of scalp. Other two injuries were

bruises. Second injury was bruise in the size of 5x3 cm on the left subscapula region and third injury was also bruise in the size of 4x3 cm on the lower

part of the right leg. X-ray examination report (Exhibit P-9) of Prabhu indicated that he had sustained fracture of left Pareto-temporal region, which

was grievous injury and was opined to be sufficient in the ordinary course of nature to cause his death. Dr. Satish Chand Vyas (PW-9) has proved the

X-ray report (Exhibit P-9). He has stated that fracture on the scalp of Prabhu was linear fracture. In cross-examination, he denied the suggestion that

this fracture could have been caused by any heavy stone by stating that in that event the injured would have suffered a different fracture and not a

linear fracture, which was not the case here. The postmortem report of Prabhu (Exhibit P-23) has been proved by Dr. Bhopal Singh (PW-10). He too

stated that after examination he found that there was fracture of left parietal as well as temporal bone. Large blood clots were present below the

scalp. Fracture of left parietal and temporal bone is present. This fracture is parallel to coronal suture. On skull cap large extra and intra dural blood is

present. Membrane of brain congested. The brain is contused blow the external injury. Injury no.1 resulted in death of the deceased, which, in the

ordinary course of nature, was sufficient to cause his death. In cross-examination, this witness also stated that such injury could have been caused by

forceful blow of ‘lathi’ and not by stone. Thus as per the statements of injured eye-witnesses, it was Mahendra Singh who gave fatal blow by

wire-wrapped ‘lathi’ on the head of deceased, which was the cause of his death. As per the inquest report (Exhibit P-4), X-ray plates (Exhibit

P-17 to Exhibit P-19) and postmortem report (Exhibit P-23), Prabhu sustained linear fracture of left parito temporal region. Dr. Satish Chand Yadav

(PW-9) has stated that fracture was sufficient in ordinary course of nature to cause death. Temporal and parietal bones are joined in such a way that

there is no gap between them but the fracture is on both the bones. Suggestion was given to him from the defence side that the said injury could be

caused by heavy stones but same was denied by the doctor by saying that possibility of such kind of fracture is more by ‘lathi’ blow because

injury by heavy stone results into depressed fracture. Dr. Bhopal Singh (PW-10) has also denied about such suggestion and ruled out any remote

possibility of stone injury. The version of the injured eye-witnesses is corroborated with medical evidence and therefore even the nonrecovery of

weapon of offence is not fatal to prosecution. Reference in this regard be made to judgment of the Supreme Court in Mritunjay Biswas Vs. Pranab

Alias Kuti Biswas (2013) 12 SCC 796.

A perusal of the judgment passed by the trial court indicates that it has all alone disbelieved statements of the eye witnesses, though their testimony

find full corroboration from medical evidence as also of the fact that a wire-wrapped ‘lathi’ was recovered at the instance of Mahendra Singh.

Finding of the trial court that since these witnesses were related to the deceased their testimony does not inspire confidence, is not justified. Such

belief of the trial court is based on its finding that since Badan (PW-1) and Puran (PW-2) submitted the written report with delay and they while giving

statements in the Court have made improvement and the prosecution witnesses have also stated that bricks and stones were pelted by both the parties

at each other, in which Raghuveer and Smt. Barfi from the accused side also sustained injuries, the testimony of these witnesses cannot be relied.

And the trial court further held that the prosecution has failed to explain the injuries sustained by Raghuveer and Smt. Barfi. In para 51 of the

impugned judgment, the trial court has stated that overall testimony of the prosecution witnesses, who happened to be related to the deceased and

were inimical towards the accused, is not reliable because it suffers from contradictions. Possibility that these injuries were sustained by the injured by

pelting of stones and bricks could not be ruled out, observed the trial court. The trial court has referred to enmity between the parties in that the

members of the complainant party were accused of committing murder of Mukhtiyar of the accused party and that panchayat had imposed penalty of

Rs.4,100/- on the family of Mooliram (PW-4), and that they did not pay the said money and therefore the panchayat had excommunicated them from

the society. In our considered view, however, even if it is believed that the accused party and the complainant party were having inimical relations and

that the cause of that enmity was panchayat elections, the delay of one day in the lodgment of the F.I.R. and further delay of one day in sending the

same to the Magistrate, cannot be justified for complete exclusion of the testimony of the eye witnesses which found full corroboration from the

medical evidence at-least qua Mahendra Singh.

Having concluded so, we find that a cross-case was also registered by the complainant party and F.I.R. No.99/1988 was registered at Police Station

Nadbai, District Bharatpur on 03.06.1988 at 09:10 AM, which is Exhibit D-7A itself. Even this F.I.R. was received by the Magistrate at 09:30 AM on

06.06.1988, which was for offence under Sections 147, 323, 325 and 452 IPC. Therein allegation has been made against the members of the

complainant party for causing injuries to the members of the accused-party. Informant Raghuveer, as per his M.L.R. (Exhibit D10A), sustained two

injuries and Smt. Barfi W/o Raghuveer, as per her M.L.R. (Exhibit D-11A), also sustained two injuries. True it is that the prosecution has failed to

give any explanation of the injuries on the person of the accused-party, but eventually evidence on record impels us to hold that the incident in the

present case appears to have taken place as a result of sudden fight without premeditation and on the spur of moment, and accused-respondent

Mahendra Singh thus inflicted a wire-wrapped ‘lathi’ blow on the head of the deceased. Accused Mahendra though caused fatal blow by

‘lathi’ on the head of the deceased but by not repeating the ‘lathi’ blow he has not taken any undue advantage of the situation. He thus

committed the offence of culpable homicide not amounting to murder and not murder simplicitor. His act is therefore covered by the Fourth exception

to Section 300 of the IPC, which is punishable under Section 304 Part-I of the IPC.

Consequently, we are persuaded to allow the appeal of the State in part and set aside the acquittal of accused-respondent Mahendra Singh for offence

under Section 302 IPC, however, convict him for offence under Section 304 Part-I IPC and for that, he is sentenced to undergo rigorous imprisonment

of seven years with fine of Rs.1,000/- and in default of which, he shall have to further undergo rigorous imprisonment of three months. He is on bail

and has to surrender before the trial court, which shall send him behind the bars to serve out the remaining period of sentence.

The appeal is accordingly disposed of.