Mahesh Bhagwati, J.
1. The challenge in this appeal is to the judgment dated 21 July, 1997 rendered by Additional Sessions Judge, No.2, Bharatpur whereby, the appellant Hari Singh and Mst. Santa have been convicted in the offences under Sections 307/34 and 307 respectively and sentenced to Rigorous Imprisonment for a period of 4 years and a fine of Rs. 200/-; in default of payment of fine to suffer further Rigorous Imprisonment for one month.
2. The nub of the appellants story is as under:
That on 7 September, 1983 PW-3 Mst. Shanti wife of Padam Singh went to her field to collect fodder for animals. She saw the wife and daughter of Hari Singh cutting the fodder. When she asked them not to cut the fodder, they abused her. It is alleged that on the same day at about 4 in the evening Mst. Shanti went to a well to fill water in her pitcher. It is further alleged that the accused persons namely Rajveer, Hardai, Santa daughter of Hari Singh and Hari Singh armed with clubs were already standing there and the accused Hari Singh prodded other accused persons exclaiming that:
lkys dks tku ls ekj nks] eS ns[k ywaxkA
Thereupon, the accused Mst. Hardai assaulted upon the head of Shanti and the accused Santa hit on her knee. It is further alleged that the accused Mst. Santa with an intention to kill, pushed her in the well. PW-2 Phool Singh, the son of Mst. Shanti having seen this incident, rushed to his father and apprised him with the same. PW-1 Padam Singh, the husband of Mst. Shanti rushed to the spot where Hari Singh and Rajveer threatened him and asked him to go away from there. However, one Balveer Singh pulled out his wife from the well who was in a state of unconsciousness. It is also alleged that Mst. Shanti was kept by the accused Hari Singh and others in his own house and she was set free next morning only. On the written report Ex.P/1, police lodged the First Information Report and commenced investigation.
3. The Investigating Officer recorded the statements of witnesses under Section 161 of Cr. P.C., prepared the site plan, got the injured Mst. Shanti medically examined and on completion of investigation, the police having found no evidence against the accused persons gave negative final report in the case.
4. Aggrieved with the negative police report of the S.H.O., Police station Vair, the complainant filed a protest petition/complaimnt in the court of Munsiff and Judicial Magistrate, Vair who having examined witnesses under Section 200 and 202 of Cr. P.C. took the cognizance of the offences under Section 447, 323, 307/34 and 326 of IPC and proceeded against the accused persons namely Mst. Hardai, Mst. Santa, Rajveer and Hari Singh.
5. In due course of time, the case came up before Additional Sessions Judge, No. 2, Bharatpur for trial. The accused Hari Singh was indicted for offences under Section 323, 307/34 and 376 of IPC, Rajveer for the offence under Section 323 and 307/34, Mst. Hardai for the offences under Sections 307/34 and 447 and Mst. Santa for the offences under Sections 307 and 447 of IPC, who pleaded not guilty and claimed trial. The prosecution examined in all 11 witnesses to prove its case. The accused persons in their explanation under Section 313 of Cr. P.C. claimed innocence. The accused examined only one witness DW-1 Virendra Singh in defence. On completion of trial, the learned trial court did not find the accused Rajveer guilty in the offences under Sections 307/34 and 323 of IPC and Mst. Hardai in the offences under Sections 323 and 447 of IPC and thus, acquitted them for the aforesaid charges. So far as, the appellants Hari Singh and Mst. Santa are concerned they were convicted and sentenced as indicated hereinabove.
6. Heard learned Counsel for the appellants, learned Public Prosecutor appearing for the State and with their assistance scanned the relevant material available on record.
7. Learned Counsel for the appellant has canvassed that the First Information Report lodged by PW-1 Padam Singh and the protest petition/complaint filed in the court of Judicial Magistrate, Vair on 7 November, 1983 are laden with contradictions in, material particulars. The story of rape has not been mentioned in the written report Ex.P/1 filed by the complainant. He has further canvassed that Mst. Shanti is alleged to have been ravished by the accused appellant Hari Singh in his house but she was recovered from the house of Chhiddi. The police has not shown any recovery of the prosecutrix from the house of Chhiddi. The sole statement of prosecutrix with regard to her recovery from the house of Chhiddi has not been substantiated by police. This fact does not find place in the First Information Report Ex.P/1 which falsifies the whole statement of the prosecutrix and on such unreliable and false statement appellants cannot be convicted. The learned Counsel has also contended that all the injuries found on the person of Mst. Shanti are simple in nature which are said to be caused by the blunt object. There is a variation about age of the injuries also and the statement of PW-11 Dr. K.L. Verma suffers from infirmity. The prosecution has failed to prove the offence under Section 307 of IPC against the appellants, as such, they deserve to be acquitted accordingly.
8. Per contra, learned Public Prosecutor appearing for the State has submitted that the learned trial court has critically analyzed and properly appreciated the evidence of the prosecution witnesses in detail. The statement of PW-1 Padam Singh, PW-2 Phool Singh, PW-3 Mst. Shanti are trustworthy and there is no reason on record to abandon their evidence. The statement of PW-2 Phool Singh cannot be jettisoned simply, for the reason that he happens to be the son of injured Mst. Shanti. The judgment of the learned trial court is just and proper and it calls for no interference, hence, the appeal filed by the appellants may dismissed.
9. Mst. Shanti was medically examined who vide injury report Ex.P/8 sustained the following injuries on her person:
(i) Bruise - 2cm x 1 '/2cm - on Rt. fore arm, post near elbow - simple - blunt object.
(ii) Bruise - 3cm x 2 2/1 cm - on scalp in mid line in middle part - simple -blunt object.
(iii) Bruise - 3cm x 2cm - on Lt. lumber region (post) - simple - blunt object, (iv) Abrasion - cm x cm - on Rt. upper arm ant. Lower part - simple -blunt object.
(v) Abrasion - 1 cm x cm - on Lt. parietal region, vertical-simple - blunt object.
(vi) Abrasion - cm x cm - on chest Rt. side outer borclive of sternum upper part - simple - blunt object.
10. Now adverting to the statements of PW-3 Shanti, it is noticed that on September 7, 1983 three incidents took place since morning till late night in series. Firstly, when PW-3 Shanti went to her field to collect fodder for anirhals, she found Mst. Hardai and Mst. Santa harvesting the grass in her field. When they were asked not to cut the grass, they abused her. Second Incident took place when Mst. Shanti went to a well to take water, there four accused persons namely Hari Sigh, Rajveer, Mst. Hardai and Mst. Santa armed with clubs, assaulted upon her and caused injuries on her head, knee and other parts of the body. There the accused-appellant Mst. Santa is alleged to have pushed Mst. Shanti into the well with an intention to kill her. Third incident is alleged to have taken place in the house of Hari Singh, where Mst. Shanti was detained for the whole night and ravished by Hari Singh at 4 in the morning. It is also alleged that from there she was taken to the house of Chhiddi and detained there till morning.
11. Fact situation emerging in the instant appeal are thus:
(i) Initially one written report Ex.P/1 was submitted by PW-1 Padam Singh before S.H.O., Police station Vair who lodged the First Information Report in the offences under Sections 447, 379, 323, 307 and 349 of IPC. (ii) During investigation the police found that the accused Mst. Santa did not push Mst. Shanti into the well, rather while drawing water from the well, she slipped on account of scum or moss and fell into the well. There was a second set of witnesses who stated that there was not much water in the well. Mst. Shanti knew that if she fell in the well, she would not die and thus, with an intention to implicate the accused persons falsely, she herself jumped into the well.
(iii) The Investigating Officer found the allegation of rape also to be totally false.
(iv) On completion of investigation no evidence was found against the accused persons and the final report was given by the police, (v) The court also did not find any evidence on record with regard to the offence of having committed rape by appellant Hari Singh upon Mst. Shanti and thus, Hari Singh was acquitted of this charge.
12. Now the most crucial question which emerges for determination in this case is, as to whether the appellant Mst. Santa pushed Mst. Shanti into well with an intention to kill her and as to whether the appellant Hari Singh had common intention and prodded Mst. Santa to kill Mst. Shanti in pursuance whereof Mst. Santa pushed her into the well?
13. The prosecution to prove its case has examined in all 11 witnesses. PW-4 Balveer, is a witness who is said to have taken out Mst. Shanti from the well and saved her. Prabhu, Ramswaroop, Ramkhiladi, Samander and Natholi are the independent witnesses, who are said to be present on the scene of occurrence. All these witnesses PW-4 Balveer, PW-5 Prabhu, PW-6 Ramkhiladi, PW-8 Natholi, PW-9 Ramswaroop and PW-10 Samander have not supported the prosecution case and turned hostile. The evidence of PW-1 Padam Singh is found to be hearsay evidence, as he was not present on the spot at the time of incidence. Now there are left only two witnesses PW-2 Phool Singh and PW-3 Mst. Shanti herself. PW-2 Phool Singh is son of the injured Mst. Shanti. Phool Singh was only 10 years old on the date of occurrence, as he has stated himself to be 13-14 years old on October 1, 1986 when his statement was recorded by the court. As per statement, he was playing near the well when the incident took place. It is noticed that PW-2 Phool Singh is witness of second incident which took place on the well. Mst. Shanti is a victim of this case. When her husband PW-1 Padam Singh submitted the written report Ex.P/1 before S.H.O., Vair on September 8, 1983, he mentioned nothing about the incident of rape therein. The report Ex.P/1 reveals that Mst. Shanti was detained by the accused persons in their house and released her in the morning only. Whereas Mst. Shanti has deposed before the court that she was detained in the house of Hari Singh where Hari Singh came in the night and threatened her to kill. She has further deposed that the accused Hari Singh gagged her mouth with a cloth, broke the string of her paticot, tore her cloths and thereafter, ravished her against her will and without her consent. Thereafter, he came at 4 in the morning and took her to the house of Chhiddi from where she was set free in the morning. This incident does not find any place in the written report Ex.P/1.
14. First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence, is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names, of eye-witnesses present at the scene of occurrence. Delay in lodging the First Information Report, quite often results in embellishment which may be creature of after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity danger creeps in all the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
15. In the instant case, the report was made in the police on the very next day on September 8, 1983. Though, the case is found to have been registered on the same day but it is not revealed as to at what time this report was submitted before the police. From the perusal of the statements of PW-1 Padam Singh, PW-2 Phool Singh and PW-3 Mst. Shanti and the final report given by the police, it is revealed that Mst. Shanti and Mst. Hardai scuffled with each other as both were casting aspersions on each others' daughter. According to the police report, none of the witnesses supported the version given by the complainant Padam Singh that Mst. Santa pushed Mst. Shanti into the well. In fact, the scuffle and exchange of abuses between Hardai and Shanti led them to this situation and Mst. Shanti went to the extent of implicating the appellant Hari Singh in a false case of rape which was indeed found to be false by the trial court also. It was not known to any of the witnesses as to whether Shanti slipped on account of algae in the well or she herself fell into the well. However, in view of serious contradictions emerging on material particulars in the statements of PW-1 Padam Singh, PW-2 Phool Singh and PW-3 Mst. Shanti as also in the written report Ex.P/1 and the complaint filed by the complainant lead me to infer that the statements of PW-3 are not found to be trustworthy. PW-2 Phool Singh being son of the complainant and a small child of 10-11 years old, his evidence does not inspire much confidence. PW-1 Padam Singh's evidence is hearsay evidence as tie was not present on the scene of occurrence. PW-4 Balveer Singh who is said to have taken Shanti out from the well has not supported the prosecution story and turned hostile. Other independent witnesses are also said to have been present at the time of occurrence but they have also not lended any support to the prosecution case and turned hostile. Thus, in the light of above contradictory, uncorroborative, tainted and coloured evidence of the witnesses, the sole testimony of PW-3 Mst. Shanti cannot become the basis of conviction of the accused-appellants.
16. The evidence of PW-3 Shanti does not come unscatched on the acid test of credibility and reliability and therefore, there is every reason and justification to doubt her testimony. She sustained six simple injuries which as-per PW-11 Doctor K.L. Verma have been found to be simple in nature. To our surprise, out of six injuries three are bruises and rest of three are simple abrasions. No grievous injury is found to have appeared on her person.
17. In order to prove the offence under Section 307 of IPC, the prosecution is liable to establish that the accused did an act which was done with intention or knowledge and under such circumstances that if he by that act cause death, he would be guilty of murder. The burden of proof of the ingredients of the offence is upon the prosecution. All the essential of murder, except death of the victim are the ingredients of an offence under the Section. The victim Mst. Shanti is found to have sustained all the injuries simple in nature. The evidence to prove alleged offence is totally wanting in the instant appeal.
18. In the ultimate analysis, the statement of PW-3 Mst. Shanti does not inspire any confidence. Her evidence is found to be untrustworthy and unworthy of credence. Her evidence does not stand corroborated by any independent witness as all the independent witnesses have turned hostile. Her statement otherwise too, seem to be jettisoned for the reason that police on completion of investigation did not find the report Ex.P/1 to be true and therefore, negative final report was given therein. Thereafter, trial court also did not find the offence of rape proved which prosecutrix incorporated later on when the complaint was filed before the court. This after thought incident of rape incorporated in the complaint falsifies his whole statement and in view of the aforesaid situation the sole testimony of PW-3 Mst. Shanti cannot become the basis of conviction of the accused-appellants. Learned trial court did not consider all these factors while appreciating the evidence of the prosecution witnesses. He arrived at the conclusion of convicting 'he accused appellants in a slipshod manner. His approach in the impugned judgment appears to be cursory as also perverse. The impugned judgment of the trial court is not found to be sustainable and deserves to be set aside accordingly. The prosecution has miserably failed to prove the alleged offences agaisnt the accused-appellants on all fronts.
19. For these reasons, the criminal appeal is allowed. The conviction of the accused appellant Hari Singh in the offence under Section 307 read with Section 34 of IPC and the Mst. Santa in the offence under Section 307 of IPC and sentence awarded to them are set aside. Both the accused-appellants are acquitted of the alleged offences. They are on bail.
20. Their bail bonds stands discharged.