State of Rajasthan Vs. Pooran and 2 ors. - Court Judgment

Excerpt:
criminal procedure code - section 154--fir--fir lodged after 2 days--over writing in date--informant not only one to look after injured--held, delay is not satisfactorily explained and it is fatal to prosecution. ; at the bottom of this report (ex. p 1) there is an over-writing on the date and it appears that 6-3-1977 was changed and 7-3-1977 was typed. if it is admitted that the report was typed on 7-3-1977, still it was lodged on 8-3-1977.;there were a lot of persons including the brother, mother and grandmother of the informant who could have lodged the report at the police station, specially when the brother of the informant rajendra prasad, who also met the informant in the hospital on the day of incident, is an employee of the police department. thus, it can be safely concluded that the delay has not been explained in this case, and the same is fatal to the prosecution.;(b) criminal procedure code - section 157--sending of report to magistrate--fir dated 8-3-1977 bears magistrate's endorsement of 25-3-1977--held, despatch of report is not in accordance with section 157.;on the basis of ex. p 1 the fir ex. p 2 was chalked out on 8-3-1977 at 10 a.m. this report was received in the court of addl. munsif and judicial magistrate no. 1, bharatpur on 25-3-1977. there is the endorsement marked x-y on ex. p 2 in this respect. it is thus clear that the despatch of ex. p 2 was not in accordance with section 157 cr.pc.;(c) criminal trial - non-production of eye witness--adverse inference-eye witness not independent--b present at place of occurrence--held, it was duty of prosecution to produce b and adverse inference can be drawn for non-production of b.;the eye witnesses cannot be held to be independent witnesses and because of this reason the non-production of bhikki is fatal to the prosecution. when admittedly bhikki was present at the spot, we find no reason on record for his non-production. it was the duty of the prosecution to have produced him as a witness, because he can be said to be independent witness. therefore, a presumption can be drawn against the prosecution that in case bhikki would have been produced as a witness he would have stated something against prosecution or would not have supported the prosecution story.;(d) criminal trial - recovery of weapon--witness for recovery turned hostile--not mentioned in recovery memo that farsa was blood stained--held, report of serologist cannot be read against accused.; its recovery has not been proved, because the witness for the recovery turned hostile. secondly, in the recovery memo, it has not been mentioned that the farsa was blood stained. therefore, the report of the serologist cannot be read against the respondents.;(e) criminal trial - appreciation of evidence--wound started bleeding immediately as per pw 1--no blood found at place of occurrence--blood found on cot and quilt--held, it is a circumstance to disbelieve testimony of pw 1.;pw 1 ram prasad has admitted that at the place where his father fell down, the wound started bleeding, and then the injured was removed from the ground to the cot. blood was found on the cot and on the quilt, but no blood was found at the place where the deceased fell down. this is also a circumstance to disbelieve the testimony of ram prasad (pw 1).;appeal dismissed - - ram prasad (pw 1) has satisfactorily explained the delay in his statement as well as in t e report itself where in it has been stated that he could not lodge the report earlier because he has attending his father in the hospital at bharatpur and that he regularly attended him. (2) that the lower court has erred in not believing the reliable and trustworthy witnesses of the prosecution; as such, the adverse inference drawn by the learned sessions judge cannot be said to be bad in law. the learned counsel lastly submitted that the appeal is against the judgment of acquittal, which is based on good reasoning. we fail to understand as to why the report was written in two phases. state of maharashtra 1983crilj1105 it has been observed by the hon'ble supreme court that attempt of the prosecution to explain the delay has failed in the instant case, since there are several different versions about the lodging of information with the police outpost. state of maharashtra 1979crilj51 .we would like to reproduce the relevant observations of this case, which are as under: in other words, if the main grounds on which the court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the high court should not disturb the acquittal. where in prosecution for offence of murder, the evidence of material prosecution witnesses was found to be unsafe to be acted upon, when considered in the light of the all pervading circumstances there was inordinate delay in recording informer's statement (on the basis of which the fir was registered) and further delay in recording the statements of material witnesses, in view of these circumstances it could be said that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubts and suspicion. if an appeal against acquittal of accused in such a case, the all vitiating circumstances had not been effectively dispelled by the high court except by a blind acceptance of the ipse dixit of the sub-inspector concerned in preference to the testimony of the informer, the conviction of the accused by the high court was not justified.farooq hassan, j.1. this appeal has been presented against the judgment dated 30-11-1977 passed by the sessions judge, bharatpur in sessions case no. 40/77 where by the learned sessions judge acquitted the respondents from all the charges levelled against them.2. briefly stated, the facts of the case are that ram prasad (pw 1) lodged a report at p.s. kumher on 8-3-1977 at 10 a.m. it was alleged in that report that on 6-3-1977 at about 10 a.m. the informant and his father roop kishore were harvesting the mustard crop in their khalyan. at that time, the accused-respondent pooran, laxman and brijwasi went to the khalyan of the informant armed with spade and lathis with the intention to commit murder of roop kishore. brijwasi gave threatening to his father that roop kishore is a great litigant and he had instituted a lot of cases against them (accused) and as such they are facing a lot of trouble. therefore, we will finish roop kishore today. after this threatening accused laxman and brijwasi caught hold of roop kishore and pooran gave a spade blow on the head of roop kishore. as roop kishore was falling down, laxman gave another blow on the person of roop kishore which hit him on the back. roop kishore started bleeding from his head injury. it has been further alleged that pw 1 ram prasad raised an alarm lehri charan and others who were present near by the scene of occurrence came to the spot. brijwasi also raised a lathi to inflict a blow on the person of roop kishore but it was caught hold of by ram prasad, and thus the above eye witness and ram prasad saved roop kishore from further beating. the accused-respondents thinking that roop kishore might have died, ran away.3. on this report the police registered a case under section 307/34, ipc roop kishore expired on 9-3-1977 at 4 30 p.m. and, therefore, the case under section 307, ipc was converted to section 302, ipc. after completing the investigation, a challan was filed against the accused-respondents in the court of addl. munsif and judicial magistrate (1), bharatpur, who committed the accused to the court of sessions on 30-4-1977. the learned sessions judge framed charges against the accused to which they did not plead guilty and claimed to be tried.4. the prosecution produced as many as 13 witnesses in support of the charge framed against the accused. then the statements of the accused under section 313, cr.pc were recorded who denied the allegations levelled against (hem by the prosecution witnesses. it was further alleged by the respondents that because of jealousy and strained relations the witnesses have deposed against them. after hearing arguments, the learned sessions judge acquitted the respondents from all the charges levelled against them. hence, this appeal.5. heard learned counsel for the parties.6. the learned public prosecutor mr. r. alvi and the learned counsel for the complainant made the following submissions:(1) that the learned sessions judge committed error in acquitting the accused-respondents on the ground that the report of the incident was lodged after a long delay. ram prasad (pw 1) has satisfactorily explained the delay in his statement as well as in t e report itself where in it has been stated that he could not lodge the report earlier because he has attending his father in the hospital at bharatpur and that he regularly attended him. the condition of the injured remained serious throughout, and, therefore, it was not possible for the informant to leave his father alone in the hospital;(2) that the lower court has erred in not believing the reliable and trustworthy witnesses of the prosecution;(3) that the lower court has wrongly appreciated the prosecution evidence and has committed an error in drawing adverse inference for the non-production of one bhikki, who is admitted to be present at the spot, by the prosecution witnesses;(4) that the lower court has committed an error in disbelieving the prosecution story on the ground that the fir was sent to the magistrate concerned after a long delay;(5) that inconsistency in the prosecution version may occur but that by itself is not sufficient to throw out the prosecution case;(6) that though the witnesses of recovery of the blood stained spade (fawara) turned hostile but still the evidence of recovery of the fawra can be relied upon on the basis of the statement of the investigation officer.7. learned counsel for the respondents, on the other hand argued that the delay in lodging the report has not been explained satisfactorily and that the eye witnesses are not only related to the deceased but are inimical towards the accused, which has been admitted by the eye witnesses in their cross-examination. the delayed despatch of fir to the concerning magistrate is a serious infirmity and it casts a great doubt on the prosecution version. he has further submitted that it has been admitted by the prosecution witnesses that bhikki whose house is just near the place of occurrence also appeared at the spot, but he has not been produced by the prosecution. as such, the adverse inference drawn by the learned sessions judge cannot be said to be bad in law. he also submitted that the recovery of the spade has not been proved. the recovery has been made from an open land accessible to all. it has been stated that the spade was blood stained, but there was no such mention in the recovery memo which makes the recovery doubtful. moreover, the recovery was made after 18 days of the occurrence, and the spade was sent to the serologist after 26 days. the learned counsel for the respondents further contended that the deceased sustained injury by a blunt object. the prosecution witnesses have alleged that the injury was caused by fawra. looking to the statements and the allegations there was no reason to use the blunt side of the spade in a case where the offender was having a sharp object, and as such it should be presumed that the sharp side of the weapon was used. because of this reason the prosecution evidence becomes doubtful. the learned counsel lastly submitted that the appeal is against the judgment of acquittal, which is based on good reasoning. therefore, interference in the judgment of acquittal is not possible.8. we have considered the arguments advanced by the learned counsel for parties and have perused the entire record.9. it is an admitted fact that the occurrence took place on 6-3-1977 at 1-50 p.m. and the report was lodged on 8-3-1977. it is thus clear that there is a delay in lodging the report. it has also been contended on behalf of the prosecution that the informant was of tender age at the time of occurrence. it was difficult for him to leave his father on the death bed and to rush for lodging the report. we have gone through the statement of pw 1 ramprasad, wherein he has admitted that he along with ramdayal, durga prasad, kewalram and other persons took the deceased to the hospital. it has been further admitted by pw 1 ramprasad that lehricharan also visited the hospital. pw 3 lehricharan also admitted that ramprasad, kewalram and mother and wife of the deceased were also attending the deceased on 7-3-1977, pw 1 ramprasad has also admitted before the trial court that his brother rajendra prasad also came in the hospital on the day of occurrence in the evening and he (pw 1 ramprasad) narrated the whole incident to rajendra prasad who is a government servant in police department, and was posted in bharatpur city, mathura gate police outpost. pw 5 ramdayal has stated that one police man from mathura gate also came to see the condition of the deceased. this statement of ramdayal is corroborated from the entry in roznamcha of mathura gate police outpost, it has also been stated that a letter from the doctor who was attending the deceased was received at the said police outpost, wherein it was desired that a dying declaration of roopkishore be recorded immediately. along with letter (ex. p. 7) a constable was sent to the hospital and the medical officer incharge of the ward was requested to report whether the patient is in a position to give statement or not, and on this the medical officer of the ward reported that the patient was semi-conscious and was unable to give statement. this report is marked as c-d on ex. p 7. it is thus clear that the explanation given by ramparsad in lodging the report after two days cannot be held to be satisfactory. he was not be only person who was attending his father roop kishore in the hospital, report (ex. p 1) is a typed report which starts as under:fuosnu gs fd vkt fnukad 6&3&1977 fnu ds djhc 10 cts dh ckr gsathis shows that this report was got typed on the day of incident, because in this report the word 'aaj' has been used. at the bottom of this report (ex. p i) there is an over-writing on the date, and it appears that 6-3-77 was changed and 7-3-77 was typed. if it is admitted that the report was typed on 7-3-77, still it was lodged on 8-3-77. it is thus clear that the report was lodged completely after one day. pw 1 ramprasad has stated that initially he wrote part of the report on 7-3-77 and the other part on 8-3-77, and after completing it he went to the typist and got the report typed. this shows that ex. p 1 has been copied by a hand written report, which has not been brought on record. pw 1 ram prasad has stated that after the report was typed he tore out the original report, which was hand written. we fail to understand as to why the report was written in two phases. this explanation of the informant that he remained busy in attending his father is not plausible because of the circumstances mentioned above. in criminal cases there should not be any inordinate delay in lodging the report of the incident. this is so because a coloured version may not be inserted in the report and the police should be set in motion immediately, so that the police may also know the real facts of the incident. in ramji surja v. state of maharashtra : 1983crilj1105 it has been observed by the hon'ble supreme court that attempt of the prosecution to explain the delay has failed in the instant case, since there are several different versions about the lodging of information with the police outpost. extra-ordinary delay in giving the first information to the police in the present case, which has not been properly explained, cannot but be viewed with suspicion. the reason given by the prosecution for the inordinate delay in reporting the incident to the police out post is hardly convincing.10. we have observed in the case before us that the explanation given by the informant for the delay in lodging the report is not convincing and plausible. there were a lot of persons including the brother, mother and grand-mother of the informant who would have lodged the report at the police station, specially when the brother of the informant rajendra prasad, who also met the informant in the hospital on the day of incident, is an employee of the police department. thus, it can be safely concluded that the delay has not been explained in this case, and the same is fatal to the prosecution. therefore, the learned sessions judge was justified in excluding the same.11. on the basis of ex. p 1 the fir ex. p 2 was chalked out on 8-3-77 at 10 a.m. this report was received in the court of addl. munsif & judicial magistrate no. 1, bharatpur on 25-3-77. there is the endorsement marked x-y on ex. p 2 in this respect. it is thus clear that the despatch of ex. p 2 was not in accordance with section 157 cr. pc and in view of the decision taken in the case iswarsingh v. state of up : 1976crilj1883 it can be safely concluded that the extra-ordinary delay in sending the fir is a circumstance which provides a legtimate basis for suspecting that the fir was recorded much later than the stated date and affording sufficient time to the prosecution to introduce improvements & embellishments and set up a distorted version of the occurrence. in order to satisfy ourselves we called for the receipt register of the court of addl. munsif & judicial magistrate (1), bharatpur. in that register, receipt of ex. p 2 is shown on 25-3-77. therefore it cannot be doubted that ex. p 2 was not received on 23-3-77. we are afraid to accept the contention of the learned counsel for the complainant to the effect that even after delay in lodging the report and despatching the fir to the concerning magistrate, the whole case of the prosecution cannot be thrown out. the cases referred to by the learned counsel are not based on the facts similar to the case in hand. even in those cases this rule is made absolute that the report should be lodged without any delay and that the fir should be despatched to the concerning magistrate under section 157 cr. pc at the earliest.12. the learned sessions judge after considering the entire evidence of the prosecution came to the conclusion that the testimony of the prosecution witnesses is not trustworthy, and the learned sessions judge has given reasons for the same. in the judgment of acquittal interference is possible only when the view taken by the lower court is perverse and is not borne cut by the evidence on record and is not reasonably possible. generally the high courts do not reverse the finding of acquittal by taking a different view of the evidence. for this observation, we find support from the case of ganesh bhawan patel and anr. v. state of maharashtra : 1979crilj51 . we would like to reproduce the relevant observations of this case, which are as under:although in an appeal from an order of acquittal the powers of the high court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet as a rule of prudence, it should 'always give proper weight & consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses'. where two reasonable conclusions can be drawn on the evidence on record, the high court should as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the court below. in other words, if the main grounds on which the court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the high court should not disturb the acquittal.where in prosecution for offence of murder, the evidence of material prosecution witnesses was found to be unsafe to be acted upon, when considered in the light of the all pervading circumstances there was inordinate delay in recording informer's statement (on the basis of which the fir was registered) and further delay in recording the statements of material witnesses, in view of these circumstances it could be said that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubts and suspicion. if an appeal against acquittal of accused in such a case, the all vitiating circumstances had not been effectively dispelled by the high court except by a blind acceptance of the ipse dixit of the sub-inspector concerned in preference to the testimony of the informer, the conviction of the accused by the high court was not justified.13. we have also gone through the statements of the prosecution witnesses specially the eye-witnesses. it has been claimed by the respondent that the eye-witnesses were having jealousy with the respondent and that their relations with the eye-witnesses are strained. this contention of the respondent finds support from the statements of the eye-witnesses. pw 1 ram prasad in his statement admitted that pw 5 ram dayal filed a suit complaint (dava) against the respondent and in that suit his father and brothers were the witnesses. it has been further admitted by pw 1 ram prasad that the respondent brijwasi has also filed a suit/complaint (dava) gainst his father and others. pw 3 lehri charan in his statement admitted that a case filed by respondent brijwasi is pending against him. in that case his wife is also an accused. pw 5 ram dayal has admitted in his statement that a case filed by brijwasi was pending against him. he further stated that he also filed a case against the respondent brijwasi at the instance of roop kishore (deceased). similarly, pw 10 durga prasad also admitted in his statement that the respondent filed a complaint against his three sons and wife, which is pending. it is thus clear that the eye witnesses cannot be held to be independent witnesses and because of this reason the non-production of bhikki is fatal to the prosecution. when admittedly bhikki was present at the spot, we find no reason on record for his non-production. it was the duty of the prosecution to have produced him as a witness, because he can be said to be independent witness. therefore, a presumption can be drawn against the prosecution that in case bhikki would have been produced as a witness, he would have stated something against the prosecution or would not have supported the prosecution story.14. the contention of the learned counsel that the deceased sustained injury by blunt object, while the case of the prosecution is that the blow was given by fawra, which has a sharp side. it was the case of the prosecution that the respondents went on the spot with intent to commit murder of roopkishore. in these circumstances, the earliest method of inflicting fatal blow would have to use the sharp side of the fawra and not its blunt side. this is also a circumstance which makes the prosecution case doubtful. moreover, its recovery has not been proved, because the witness for the recovery turned hostile. secondly, in the recovery memo, it has not been mentioned that the fawra was bloodstained. therefore, the report of the serologist cannot be read against the respondents. pw 1 ramprasad deposed before the trial court that at the time when his father was standing on a short distance from the cot, pooran inflicted a fawra blow on his head, and on sustaining the injury his father fell down. pw 1 ramprasad has admitted that at the place where his father fell down, the wound started bleeding, and then the injured was removed from the ground to the cot. blood was found on the cot and on the guilt, but no blood was found at the place where the deceased fell down. this is also a circumstance to disbelieve the testimony of ramprasad (pw 1).15. after going through the entire evidence and the judgment passed by the learned sessions judge, we do not find any reason to interfere with the finding arrived at by the learned sessions judge.16. accordingly, this appeal fails and is hereby dismissed. the accused-respondents are on bail and they need not surrender. their bail bonds are cancelled.