Devinder Vs. State of Haryana - Court Judgment

Excerpt:
criminal - conviction - sections 300, 302 and 307 of indian penal code, 1860, section 6 of terrorist and disruptive activities (prevention) act, 1985 and sections 25 and 27 of arms act, 1959 - appellant convicted and sentenced under section 302 and sections 25 and 27 read with section 6 - order of conviction challenged - circumstances prompts that fir did not see light of clay till death of 'x' - also version of prosecution that fir recorded on 26.07.1986 was not true - therefore prosecution case presented before court cannot be accepted - held, order of conviction set aside. - [m. hidayatullah, c.j.,; g.k. mitter,; k.s. hedge,; r.s. bachawat and; s.m. sik, jj.] the sales tax authorities directed that the sum realised as sales tax by the petitioners from their customers and paid over to the state should be refunded to the petitioners on condition that the petitioners passed on the amounts to their customers. since the petitioners did not fulfil the condition, the sales tax officer 'forfeited the sum under s. 21(4) of .the bombay sales tax act, 1953, by order dated march 17, 1958. on march 28, the petitioners filed a writ petition in the high court and contended that s. 21(4) was ultra rites the powers of the state legislature and was violative of arts. 19(1)(f) and 265 of the constitution and hence, they were not liable to repay the amount. the single judge dismissed the petition on the ground that the petitioners defrauded their customers and so were not entitled to any relief even if there was a violation of fundamental rights. the appellate bench of the high court dismissed the appeal on the ground that it would not interfere with the discretionary order of the single judge. on december 24, 1958, the collector attached the properties of the petitioners for recovering the amount as arrears of land revenue and the petitioners paid the amount in instalments between august 1959 and august 1960. on september 29, 1967 this court in kantilal babual v. h.c. panel, 21 s.t.c. 174 (s.c.) struck down s. 12a(4) of bombay sales tax act, 1946, corresponding to s. 2'1(4) of the 1953- act, on the ground that it was violative of art. 19(1)(f) inasmuch as the power conferred by the section was unguided, uncanalised and uncontrolled and so was not a reasonable restriction on the fundamental right guaranteed under the article. on the assumption that s. 21(4) of the 1953-act is also liable to be struck down on the same ground, on february 9, 1968, the petitioners flied a writ petition under art. 32 claiming a refund of the amount. the petitioners contended that they did not know that the section was ultra vires on the particular ground on which this court struck it down, that they paid the amounts under coercion or mistake, that the mistake was discovered on september 29, 1967 (the date of the judgment of this court) and that they were entitled to the refund under s. 72 of the indian contract act, 1872. on the questions: (1) whether the petition is liable to be dismissed on the ground of inches; and (2) whether the petition is barred by res judicata in view of the decision of the high court. held: (per hidayatullah, c.j., bachawat and mitter, jj.): (1) the petition must be dismissed on the ground of inches. per hidayatullah c.j.: article 32 gives the right to move this court by appropriate proceedings for enforcement of fundamental rights and the state cannot place any hindrance in the way of an aggrieved person. but once the matter has reached this court, the extent or manner of interference is for this court to decide. this court has put itself in restraint in the matter of petitions under art. 32. for example, this court refrains from acting under the article if the party had already moved the high court under art. 226 and if the high court had exercised its parallel jurisdiction. in such a case, this court would not allow fresh proceedings to be started under art. 32 but would insist on the decision of the high court being brought before it on appeal. similarly, in inquiring into belated and stale claims, this court should take note of evidence of neglect of the petitioner's own rights. for a long time or of the rights of innocent parties which might have emerged by reason of the delay. the party aggrieved must therefore move this court at the earliest possible time and explain satisfactorily all semblance of delay. it is not possible for this court to lay down any specific period as the ultimate limit of action and each case will have to be considered on its own facts. a petition under art. 32 is neither a suit nor an application to which the limitation act applies. further, putting curbs in the way of enforcement of fundamental rights through such legislative action might be questioned under art. 13(2). for, if a short period of limitation is prescribed the fundamental right might be frustrated. therefore, this court has to exercise its discretion from case to case, and where there is appearance of an avoidable delay and this delay affects the merits of the claim, this court will consider it, and in a proper case, hold the party disentitled to invoke its extraordinary jurisdiction. [830c, de. g--h; 831 a--b. c--e; 832 a--e] in the present case, the petitioners moved unsuccessfully the high court for relief on the. ground that the recovery from them was unconstitutional, but did not come up in appeal to this court. there is thus no question of any mistake of law. having set the machinery of law in motion they cannot abandon it to resume it after a .number of years because another person got the statute declared unconstitutional. they should have known the exact ground of unconstitutionality since every one is presumed to know the law; and pursued the ground in this court. not having done so, and having abandoned his own litigation years ago. this court will not apply the analogy of the article in the limitation act in cases of mistake of law and give him relief. [832 f--h; 833 a--b, c--e] per bachawat, j.: the normal remedy for recovery of money paid to the state under coercion or mistake of law is by suit. the right to move this court for enforcement of fundamental rights is guaranteed by art. 32, and no period of limitation is prescribed for such a petition. the writ issues as a matter of course if a breach of a 'fundamental right established, but this does not mean that in giving relief under the article this court may ignore all laws of procedure. the extraordinary remedies under arts. 32 and 226 of the constitution are not intended to enable a claimant to recover monies the recovery of which by suit is barred by limitation. in the absence any roles of procedure under art. 145(1)(c) this court may adopt any reasonable rule. for example. this court will not allow a petitioner to move this court under art. 32 on a petition containing misleading and inaccurate statements. similarly, the general principles of res judicata are applied where applicable on grounds of public policy. therefore, where the remedy in a writ application under art. 32 or art. 226 corresponds to a 'remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the court imposes on analogy the same limitation on the summary remedy in the writ jurisdiction even though there is no express statutory bar of limitation, on grounds of public policy and on the principle that the laws aid the vigilant and not those who slumber. [842 a--f; 843 a--f] in the present case, the petitioners were not labouring under any mistake of law when they made the payments, because, in their writ petition in the high court, they contended that the order was invalid and that s. 21(4) of the bombay sales tax act, 1953, was ultra vires and unconstitutional although they did not know the precise ground upon which this court subsequently struck down s. 12a(4) of the 1946-act. therefore, when they made the payments in 1959 and 1960 they were made under coercion and not under a mistake of law in thinking that the money was due. hence the petitioners could not claim any relief on the ground of mistake. they could rely on the ground of coercion but a suit for the recovery of money on the ground of coercion instituted in february 1968, would have been barred by limitation. a suit for recovery of money on the ground of coercion instituted after january 1, 1964 would be governed by art. 24 of the limitation act, 1963, and the period of limitation would be 3 years from the dates in 1959 and 1960 when the amounts were paid. the petitioners could not obtain an extension of the period under s. 30(a) of the limitation act, 1963, as art. 62 of the limitation act, 1908, which governs a suit for recovery of tax or other levy illegally collected, prescribed the same period of limitation. [840 f--h; 841 a---c] shiva prasad singh v. srish chandra nandi, (1949) l.r. 76 i.a. 244, 254, sales tax officer v. mukundlal saraf [1959] s.c.r. 1350, 1361, 1362, a. venkata subba rao v. state of andhra pradesh[1965] 2 s.c.r. 577, 612--620, state of madhya pradesh v. bhailal bhai & ors. [1964] 6 s.c.r. 261 274, daryao v. state of u.p. [1962] 1 s.c.r. 574, sobhraj odharmal v. state of ralasthan, [1963] supp. 1 s.c.r. 99, 111 and her highness ruckmaboye v. lulloobhoy mottickchund, (185152) 5 m.i.a. 234, 251, referred to.- per mitter, j.: the limitation act does not in terms apply to proceedings against the state under art. 32 in respect of violation of fundamental rights. a person complaining of such infraction has. one of three courses open to him. he can file a suit, invoke art. 226 or art. 32suits are governed by the limitation act. in the matter of the issue of a writ under art. 226 also, courts have refused to give relief in cases of long or unreasonable delay, although the limitation act does not apply, and the maximum period fixed by the legislature for filing a suit is ordinarily taken to be a reasonable standard by which delay in seeking the remedy under art. 226 can be measured. there is no reason for applying a different test when a party comes to this court under art. 32. there is public policy behind all statutes of limitation and a claim based on the infraction of fundamental rights ought not to be entertained if made beyond the period fixed by the limitation act for the enforcement of the right by way of suit, that is, although the limitation act does not apply, the period fixed by it should be taken to be a true measure of the time within which a person can be allowed to raise a plea successfully under art. 32. [853 c--h; 854 a--b] the petitioners in this case had not made a mistake in thinking that the money paid was due when in fact it was not due. they not only opposed the claim of the sales tax authorities but filed a writ petition contending that there was a violation of art. 19(1)(f). they did not accept the decision of the single judge but filed an appeal raising the same contention. they complained about the violation of their fundamental rights, the illegality of the order of forfeiture and the unreason-able restriction on their fundamental rights under art. 19(1)(f). they protested against the order of forfeiture not only out of court but in court and only paid the amounts after the issue of legal process. they were never influenced by a mistake of law and never 'failed to 'appreciate the correct position in law. but the payments were made under coercion. the period of limitation for a suit against government to recover money paid under protest is governed either by art. 16 or art. 62 of the limitation act, 1908 that is one year or three years. but taking the most favourable view that the period of six years fixed by art. 120 of limitation act, 1908, would apply, that period would have expired in 1966. the position is not different even if the limitation act, 1963 is applied. a claim for money paid under coercion would be covered by art. 113 of the limitation act, 1963, giving a period of 3 years from january 1, 1964 the date of commencement of the 1963-act. under s. 30(a) of the limitation act, 1963, the period of limitation for a suit which was formerly covered by art. 120 of the act of 1908; would be covered by art. 113 of the 1963-act. therefore, the suit in the present case would have to be filed by january 1, 1967. as the petitioners came to this court in february 1968 long after the date when they could have properly filed a suit, the application under art. 32 must be rejected. [851 h; 852 a---d, g-h; 853 a--b; 854- b--h;, 855 a-b] kantilal babulal & bros. v.h.c. patel 2.1 s.t,c. 174, sri sri shiba prasad singh, deceased, now represented by kali prasad singha v. maharaja srish chandra nandi 76 i.a. 244, sales tax officer v. kanhaiya lal mukundlal saraf, [1959] s.c.r. 1350 at 1363, sales tax officer, pilibhit v. budh prakash jai prakash, [1955] 1 s.c.r. 243, state o/ madhya pradesh v. bhailal bhai [1964] 6 s.c.r. 261, state of kerala v. aluminum industries ltd. 16 s.t.c. 689, and a. v. subbarao v. the state of andhra pradesh [1965] 2 s.c.r. 577, referred to. per sikri and hegde, jj. (dissenting): the petition has to be allowed and the petitioners must be granted the relief prayed for. per sikri, j.: article 32(2) of the constitution confers a judicial power on this court, and like all judicial powers, unless there is an express provision to the contrary, it must be exercised in accordance with fundamental principles of administration of justice, and one such fundamental principle is that stale claims should not be given effect to. [833 f--g] the limitation act does not directly apply to a petition under art. 32 and to invoke the analogy of the limitation act is not appropriate when dealing with petitions under art. 32. if a claim is barred under the limitation act, prima facie it is a stale claim but even if it is not so barred, it may not' be entertained by this court if on the facts of the case there is unreasonable delay. to issue a writ, direction or order in the nature of mandamus certiorari or prohibition after a delay of 12 years or 6 years would, except when there are exceptional circumstances, be strange. it is difficult to lay down a precise period, but a period of one year may be taken as the period beyond which the claim would be a stale claim unless the delay is explained. the time spent in making representations to higher authorities may be taken as a good explanation for any delay. such a practice would not destroy the guarantee under art. 32, because, the article nowhere lays down that a petition, however late, should be entertained. [833 g; 835 c-h] in the present case, the petitioners were mistaken in thinking that the money was liable to be paid under a valid law and hence under s. 72 of the contract act, the petitioners would be entitled to the relief claimed. the grounds urged before the high court show that it never struck the petitioners that the provision could be challenged on the ground ulti-mately accepted by this court. if the petitioners had not moved the high court but had paid on demand they would have been entitled to maintain the petition in this court. the position could not be worse became they exercised their right under art. 226. when a petitioner approaches a high court and fails, it could not be said that payments made by him thereafter were not under a mistake of law, even if the point on which this court ultimately strikes down the provision under which the payments were made was never raised in the high court. the petitioners discovered, like all assessees their mistake when this court struck down s. 12a(4) of the 1946-act and they came to this court within 6 months of that date and hence there was no delay. [837 g--h; 839 b---e] daryao v. state of u.p. [1962] 1 s.c.r. 574, amalgamated coalfields ltd. v. janapada sabha, chindwara, a.i.r. 1964 s.c. 1013, 1018, sales tax officer v. kanhaiyalal, [1959] s.c.r. 1350 andkantilal babulal v. h.c. patel, sales tax officer, 21 s.t.c. 174, referred to. per hegde, j.: in view of the decision of this court in kantilal babulal v.h.c. patel, 21 s.t.c. 174 which struck down s. 12a(4) or the 1946-act, the impugned collection under s. 21(4) of the 1953-act was without the authority of law and consequently the exaction infringed the fundamental right of the petitioners under art. 19(1)(f). hence the petitioners have a fundamental right to approach this' court under art. 32 for relief and this court has a duty to afford them the appropriate relief. since the right given to the petitioners under art. 32 is itself a fundamental right and does not depend on the discretionary powers of this court, as in 1be case of art. 226, it is inappropriate to equate the duty imposed on this court to the powers of chancery court in england or the equitable jurisdiction of courts in the united states. the fact that the petitioners have no equity in their favour is an irrelevant circumstance in deciding the nature of the right available to an aggrieved party under art. 32. this court is charged by the constitution with the special responsibility of protecting and enforcing the fundamental rights, and hence leaches on the part of an aggrieved party cannot deprive him of his right to get relief under art. 32. in fact, law reports do not show a single instance of this court refusing to grant relief on the ground of delay. if this court could refuse relief on the ground of delay, the power of the court under art. 32 would be a discretionary power and the right would cease to be a fundamental right. the provisions contained in the limitation act do not apply to proceedings under arts. 226 and 32 and if these provisions of the limitation act are brought in indirectly to control the remedies conferred by the constitution, it would be a case of parliament indirectly abridging the fundamental rights which this court, in golaknath's case, [1967] 2 s.c.r. 762, held that parliament cannot do. the 'fear. that forgotten claims and discarded rights against government may be sought to be enforced after the lapse of a number of years if fundamental rights are held to be enforceable without any time limit, is an exaggerated one, for, after all, a petitioner can only enforce an existing right. [856 d. f--h; 857 a, b, d, g-h; 858 a, d--e, f--h; 859 h] in this case the petitioners have an existing right even if their remedy under the ordinary law is barred. this court struck down s. 12a(4) of the 1946-act on a ground not put forward by the petitioners in the high court but on a wholly different ground. a mere impression of a party that a provision of law may be ultra vires cannot be equated to knowledge that the provision is invalid. and the fact, that, after a futile attempt to get the provision in question declared invalid the petitioners gave up their fight and submitted to the law which was apparently valid is no proof of the fact that they knew that the provision in question was invalid. there is no reason for rejecting the plea of the petitioners that they became aware of the invalidity of the provision only after the decision of this court in kantilal's case, and since the petition was filed very soon thereafter, the petitioners were entitled to relief. [860 c--g] state of m.p.v. bhailal bhai, [1964] 6 s.c.r. 261, referred to. (2) (by full court): the petition is not barred by res judicata. per hidayatullah, c.j. where the order of the high court under art. 22% is not a speaking order or the matter has been disposed of on some ground other than on merits, at the threshold, this courtmay entertain the application under art. 32. [831 b] daryao v. state of u.p. [1962] 1 s.c.r. 574, explained. per sikri, bachawat and mitter, jj.: when a petition under art. 226 is dismissed not on the merits but because of the laches on the party applying for ,the writ or because an alternative remedy was available to him, such dismissal is not a bar to a subsequent petition under art. 32, except in cases when the facts found by the high court might them selves be relevant under art. 32. [833 e--f; 839 f--g; 855 c--d,f-g] daryao's case, [1962] 1 s.c.r. 574 and joseph v. state of kerala, a.i.r. 1965 s.c. 1514, referred to. per hegde. j.: it is only when the right claimed by the petitioner in his petition under art. 32 had been claimed in the high court under art. 226 and negatived by the high court and that decision had become final as it was not appealed against, that the petitioner would not be able to agitate the right over again in this court under art. 32. [856 b--c] daryao's case, [1962] 1 s.c.r. 574, explained.orderm.k. mukherjee, j1. the subject matter of challenge in this appeal is the judgment and order dated may 30, 1987 rendered by the designated court, rohtak, while disposing of sessions case no. 550 of 1986 and arms act case no. 551 of 1986. by the impugned judgment and order the court convicted and sentenced the appellant devinder @ pappy under section 302 ipc and sections 25 and 27 of the arms act, 1959 read with section 6 of terrorist and disruptive activities (prevention) act, 1985 ('tada' for short). 2. shorn of details the prosecution case is as under : (a) ramphal (the deceased) used to sell vegetables from his shop-cum-residence in the janta colony, rohtak city. on july 26, 1986 at or about 9 a.m. the appellant went to his shop and asked for some vegetables on credit. ramphal told the appellant that as he had not paid his earlier dues he would not oblige him any more. since such refusal of ramphal was in the presence of two others, namely, jagdish (p.w. 10) and satbir singh (p.w. 11), the appellant felt insulted and left in a huff.(b) about twenty minutes thereafter the appellant came back with a knife and remarked that he would teach him (ramphal) a lesson for insulting him in the presence of others. ramphal, who was then cooking, stood up and attempted to escape. he however could not succeed in his attempt as the appellant gave him two blows with the knife - one of the left side of the chest and the other on the abdomen. jagdish and satbir singh, who were there still then, and one umesh, who reached there by chance, witnessed the assault.(c) jagdish and umesh then carried ramphal in a rickshaw to the medical college hospital, rohtak where he was examined by dr. sushil kumar jain (p.w. 5) first, after examination, dr. jain sent a medico legal report (ex. ps) and a rukka (ex. pd) to the police post attached to the hospital where an entry in terms thereof was made by constable mangal singh (p.w. 1) in the daily diary book at 1.45 p.m. (ex. pe).(d) in the meantime, however,-at 11.30 a.m. to be precise-the city police station, rqhtak had received a telephonic message from the above police post about the admission of ramphal in the hospital with injuries on his person and, after recording that message in the daily dairy book (ex. pf), asi tota ram (p.w. 12) had left for the hospital. reaching there he found jagdish present and recorded him statement (ex. pz) at 2.40 p.m. which was treated as the fir. after forwarding the statement to the police station for registering a case, tota ram took up investigation and went to the spot. he prepared a rough site plan and seized some blood-stained earth therefrom in the presence of jagdish and satbir.(e) ramphal, who was admitted as an indoor patient in the hospital, was operated upon by dr. pradeep kumar (p.w. 7) for his injuries but he succumbed to them on the following day i.e. july 27, 1986 at 11.30 a.m. on receipt of that information the case which was earlier registered against the appellant under section 307 i.p.c. was converted into one under section 302 i.p.c. and a special report (ex. ph) was sent to the local magistrate, asi tota ram then went to the hospital and after holding inquest upon the dead body of ramphal, sent it for autopsy which was performed by dr. m.k. bishnoi (p.w. 9).(f) in course of the investigation the appellant was arrested on july 29, 1986 and pursuant to a statement made by him to tota ram on july 31, 1986 (ex. pee) a spring activated knife concealed under the bricks in i a deserted kotha towards the southern boundary wall of hanuman park, rohtak was recovered in the presence of jagdish (p.w. 10) and daya chand. after recovery of the knife a separate case was registered against the appellant under the arms act, 1959 read with section 6 of tada.(g) the blood-stained earth recovered from the spot, the shirt removed from the dead body of ramphal and the knife recovered pursuant to the statement of the appellant were sent to the forensic science laboratory (f.s.l.), madhuban for chemical examination and human blood was detected on all those articles on such examination. on completion of the investigation asi tota ram submitted two separate charge-sheets against the appellant; one under section 302 i.p.c. for the murder of ramphal on july 26, 1986 and the other under section 25 and 27 of the arms act, 1959 read with section 6 of tada for unlawful possession and user of a spring actuated knife.3. the two cases arising out of the above charge-sheets were clubbed and tried together and were disposed of by the impugned judgment in the manner indicated above.4. the appellant pleaded not guilty to the charges leveled against him and his defence was that at the instance of jagdish and ramphal he was falsely implicated in the case as he had, three days prior to the alleged murder of ramphal, a quarrel with jagdish and umesh over their misbehavior in their locality under the influence of liquor.5. in support of their respective cases prosecution examined twelve witnesses and the defence one.6. to sustain the charge of murder leveled against the appellant the prosecution rested its case principally upon the ocular version of jagdish (p.w. 10) and satbir (p.w. 11). the designated court found them to be the most probable and natural witnesses and as their evidence stood amply corroborated by the evidence of the doctors, the recovery of the knife pursuant to the statement of the appellant, and the report of the forensic science laboratory held the appellant guilty of both the charges leveled against him.7. having carefully gone through the entire materials on record, we are unable to sustain the impugned judgment. though apparently there is not reason to disbelieve the two eye witnesses, there are certain underlying circumstances which persuade us to give the benefit of reasonable doubt to the appellant. according to the prosecution case - and as testified by jagdish - immediately after the assault ramphal was taken to the hospital by him (jagdish) and umesh (not examined), who were present at the time of the assault. dr. jain testified that at the time of admission ramphal was fully conscious and his blood pressure and pulse were normal. from the medico legal report (ex. ps) that the doctor sent to the police after examining ramphal we find that apart from his name, the father's name of ramphal, his address, his occupation and an account as to how the injuries were caused find place. obviously all these particulars had been furnished by ramphal, and/or jagdish and umesh, who had accompanied him. in that context it was expected, if really the appellant was the assailant, that his name would be disclosed by all or any of them while furnishing the cause of the injuries. it can, therefore, be legitimately inferred that at the earliest available opportunity the name of the appellant was not disclosed.8. it was, however, contended by mr. malhotra appearing on behalf of the respondent that since the f.i.r. was lodged by jagdish with promptitude and therein the name of the appellant as the assailant had been mentioned, non-disclosure of his name earlier before the doctor, who was under no statutory obligation to record the name of the assailant, was of no moment. if the f.i.r. was recorded at 2.40 p.m. (on july 26, 1986) as indicated therein we might have persuaded ourselves to accept the contention of mr. malhotra but we find, surprisingly enough, that no special report in respect of the registration of the case was sent to the magistrate on that day; and, indeed, as the evidence on record unmistakably shows that it was forwarded to the magistrate only after the case was converted to one under section 302 ipc consequent upon the death of ramphal on july 27,1986 and received in his office at 10 p.m. this glaring circumstance prompts us to hold that the f.i.r. did not see the light of the day till the death of ramphal and the version of the prosecution that the f.i.r. was recorded on july 26, 1986 is not true.9. 9. for the foregoing discussion the prosecution case as presented before the court cannot be accepted. we, therefore, allow this appeal, set aside the conviction and sentence recorded against the appellant and acquit him. the appellant, who is in jail, be released forthwith unless wanted in connection with some other case.

Judgment:
ORDER

M.K. Mukherjee, J

1. The subject matter of challenge in this appeal is the judgment and order dated May 30, 1987 rendered by the Designated Court, Rohtak, while disposing of Sessions Case No. 550 of 1986 and Arms Act Case No. 551 of 1986. By the impugned judgment and order the Court convicted and sentenced the appellant Devinder @ Pappy under Section 302 IPC and Sections 25 and 27 of the Arms Act, 1959 read with Section 6 of Terrorist and disruptive Activities (Prevention) Act, 1985 ('TADA' for short).

2. Shorn of details the prosecution case is as under : (a) Ramphal (the deceased) used to sell vegetables from his shop-cum-residence in the Janta Colony, Rohtak city. On July 26, 1986 at or about 9 A.M. the appellant went to his shop and asked for some vegetables on credit. Ramphal told the appellant that as he had not paid his earlier dues he would not oblige him any more. Since such refusal of Ramphal was in the presence of two others, namely, Jagdish (P.W. 10) and Satbir Singh (P.W. 11), the appellant felt insulted and left in a huff.

(b) About twenty minutes thereafter the appellant came back with a knife and remarked that he would teach him (Ramphal) a lesson for insulting him in the presence of others. Ramphal, who was then cooking, stood up and attempted to escape. He however could not succeed in his attempt as the appellant gave him two blows with the knife - one of the left side of the chest and the other on the abdomen. Jagdish and Satbir Singh, who were there still then, and one Umesh, who reached there by chance, witnessed the assault.

(c) Jagdish and Umesh then carried Ramphal in a rickshaw to the Medical College Hospital, Rohtak where he was examined by Dr. Sushil Kumar Jain (P.W. 5) first, After examination, Dr. Jain sent a medico legal report (Ex. PS) and a rukka (Ex. PD) to the Police Post attached to the hospital where an entry in terms thereof was made by Constable Mangal Singh (P.W. 1) in the daily diary book at 1.45 P.M. (Ex. PE).

(d) In the meantime, however,-at 11.30 A.M. to be precise-the City Police Station, Rqhtak had received a telephonic message from the above Police Post about the admission of Ramphal in the hospital with injuries on his person and, after recording that message in the daily dairy book (Ex. PF), ASI Tota Ram (P.W. 12) had left for the hospital. Reaching there he found Jagdish present and recorded him statement (Ex. PZ) at 2.40 P.M. which was treated as the FIR. After forwarding the statement to the Police Station for registering a case, Tota Ram took up investigation and went to the spot. He prepared a rough site plan and seized some blood-stained earth therefrom in the presence of Jagdish and Satbir.

(e) Ramphal, who was admitted as an indoor patient in the hospital, was operated upon by Dr. Pradeep Kumar (P.W. 7) for his injuries but he succumbed to them on the following day i.e. July 27, 1986 at 11.30 A.M. On receipt of that information the case which was earlier registered against the appellant under Section 307 I.P.C. was converted into one under Section 302 I.P.C. and a special Report (Ex. PH) was sent to the local Magistrate, ASI Tota Ram then went to the hospital and after holding inquest upon the dead body of Ramphal, sent it for autopsy which was performed by Dr. M.K. Bishnoi (P.W. 9).

(f) In course of the investigation the appellant was arrested on July 29, 1986 and pursuant to a statement made by him to Tota Ram on July 31, 1986 (Ex. PEE) a spring activated knife concealed under the bricks in i a deserted kotha towards the southern boundary wall of Hanuman Park, Rohtak was recovered in the presence of Jagdish (P.W. 10) and Daya Chand. After recovery of the knife a separate case was registered against the appellant under the Arms Act, 1959 read with Section 6 of TADA.

(g) The blood-stained earth recovered from the spot, the shirt removed from the dead body of Ramphal and the knife recovered pursuant to the statement of the appellant were sent to the Forensic Science Laboratory (F.S.L.), Madhuban for chemical examination and human blood was detected on all those articles on such examination. On completion of the investigation ASI Tota Ram submitted two separate charge-sheets against the appellant; one under Section 302 I.P.C. for the murder of Ramphal on July 26, 1986 and the other under Section 25 and 27 of the Arms Act, 1959 read with Section 6 of TADA for unlawful possession and user of a spring actuated knife.

3. The two cases arising out of the above charge-sheets were clubbed and tried together and were disposed of by the impugned judgment in the manner indicated above.

4. The appellant pleaded not guilty to the charges leveled against him and his defence was that at the instance of Jagdish and Ramphal he was falsely implicated in the case as he had, three days prior to the alleged murder of Ramphal, a quarrel with Jagdish and Umesh over their misbehavior in their locality under the influence of liquor.

5. In support of their respective cases prosecution examined twelve witnesses and the defence one.

6. To sustain the charge of murder leveled against the appellant the prosecution rested its case principally upon the ocular version of Jagdish (P.W. 10) and Satbir (P.W. 11). The Designated Court found them to be the most probable and natural witnesses and as their evidence stood amply corroborated by the evidence of the doctors, the recovery of the knife pursuant to the statement of the appellant, and the report of the Forensic Science Laboratory held the appellant guilty of both the charges leveled against him.

7. Having carefully gone through the entire materials on record, we are unable to sustain the impugned judgment. Though apparently there is not reason to disbelieve the two eye witnesses, there are certain underlying circumstances which persuade us to give the benefit of reasonable doubt to the appellant. According to the prosecution case - and as testified by Jagdish - immediately after the assault Ramphal was taken to the hospital by him (Jagdish) and Umesh (not examined), who were present at the time of the assault. Dr. Jain testified that at the time of admission Ramphal was fully conscious and his blood pressure and pulse were normal. From the medico legal report (Ex. PS) that the doctor sent to the police after examining Ramphal we find that apart from his name, the father's name of Ramphal, his address, his occupation and an account as to how the injuries were caused find place. Obviously all these particulars had been furnished by Ramphal, and/or Jagdish and Umesh, who had accompanied him. In that context it was expected, if really the appellant was the assailant, that his name would be disclosed by all or any of them while furnishing the cause of the injuries. It can, therefore, be legitimately inferred that at the earliest available opportunity the name of the appellant was not disclosed.

8. It was, however, contended by Mr. Malhotra appearing on behalf of the respondent that since the F.I.R. was lodged by Jagdish with promptitude and therein the name of the appellant as the assailant had been mentioned, non-disclosure of his name earlier before the doctor, who was under no statutory obligation to record the name of the assailant, was of no moment. If the F.I.R. was recorded at 2.40 P.M. (on July 26, 1986) as indicated therein we might have persuaded ourselves to accept the contention of Mr. Malhotra but we find, surprisingly enough, that no special report in respect of the registration of the case was sent to the Magistrate on that day; and, indeed, as the evidence on record unmistakably shows that it was forwarded to the Magistrate only after the case was converted to one under Section 302 IPC consequent upon the death of Ramphal on July 27,1986 and received in his office at 10 P.M. This glaring circumstance prompts us to hold that the F.I.R. did not see the light of the day till the death of Ramphal and the version of the prosecution that the F.I.R. was recorded on July 26, 1986 is not true.

9. 9. For the foregoing discussion the prosecution case as presented before the Court cannot be accepted. We, therefore, allow this appeal, set aside the conviction and sentence recorded against the appellant and acquit him. The appellant, who is in jail, be released forthwith unless wanted in connection with some other case.