Viri Singh Vs. State of Rajasthan - Court Judgment

Excerpt:
criminal procedure code - fir--delay--fir promptly lodged in police station but sent to magistrate two days late--no explanation for delay--court only two furlong away from police station--held, fir is a suspicious document.;the fir was sent to the court, which was only 1 furlong away from the police station, after 2 days, i e., on the day on which this witness pw 3 was made to sign 2 documents at the police station which were already prepared. no explanation has been given why the fir was sent by delay of 2 days. we are of the opinion that the fir is a suspicious document, on which no reliance can be placed.;(b) penal code - section 302/139--report of serologist not available--no tests identification--five accused already acquitted on basis of untrustworthy testimony of pws--accused 'v' convicted on basis of same testimony--held, accused 'v' also deserves to be given benefit of doubt.;the genesis of the story has not come to surface and this is a case of clear over implication. the report of serologist is also not available and test identification has also not been held, which was very necessary in the facts and circumstances of the case. in this case; five accused persons have been acquitted by the trial court as it did not believe the prosecution evidence, but the trial court has convicted the accused appellant on the same evidence. we are, therefore, of the opinion that this is a case of over implication and the accused appellant deserves to be given the benefit of doubt.;appeal accepted - inder sen israni, j.1. this is a criminal appeal under section 374(2) cr. p.c. against the judgment of learned addl. sessions judge, deeg, dated 17-12-1983, by which accused appellant was convicted and sentenced to life imprisonment for offence under section 302 i.p.c. against judgment dated 17-12-1983 of learned sessions judge, deeg.2. briefly, the facts of the case are that the sons of deceased amir singh had committed murder of chanku singh, whose case was pending in the court. on 23-31983 the date of that case was fixed in the court, therefore, on that day in the morning deceased amir singh pw 3 atma singh and pw 7 inderjeet singh boarded bus no. rrm 7445 from kasba nagar for coming to deeg. in the same bus, all the accused persons in that case were also travelling. when the bus reached near village narayana, accused viri singh and kumari reshma are alleged to have attacked deceased amirsingh with swords, due to which be fell down in the bus and accused chanku, pyari, virma and laxmi also caused injuries to him knives. on account of injuries of swords, the neck of the accused was cut off and he died on the spot. accused chanku singh fired from his 12 bore gun, which struck in the roof of the bus. the conductor of the bus nand kishore (pw 4) drove on motor cycle to the police station, deeg and lodged an information regarding the occurrence. pw 8 sriram sho soon reached the spot, where pw 3 atrna singh handed over to him a written fir ex. p. 2, which was sent to the police station for registration. after some time, the police succeeded in arresting all the accused persons the dead body of deceased amirsingh was brought to deeg where the post mortem was conducted. after usual investigation, a challan against 6 accused persons under sections 148, 302 i.p.c. and in the alternative under section 302/149 i.p.c. was filed.3. after recording the evidence the learned trial court convicted and sentenced the accused appellant virisingh as indicated above and acquitted rest of the accused persons.4. mr. biri singh, learned counsel for the appellants has pointed out that the occurrence is said to have taken place on 23-3-1983 at 10.30 a.m. near the bus stand narayana and fir was lodged at 11.00 a.m. however, the fir reached the court of magistrate only on 25-3-1983, even though the concerned police station is at a distance of about one furlong only. there fore, no reliance can be placed on the truthfulness of the fir. ex.p 12 is the recovery memo of sword at the instance of accused appellant, but pw 5 nawal singh has denied the recovery of any sword in his presence. it is further pointed out that even though it is said that the sword was blood stained, but the same was not sent to the forensic laboratory and no report of serologist has been filed to conduct the alleged weapon of offence with the appellant. it is further contended that pw 3 atma singh and pw 7 inderjeet singh are said to be the eye witnesses of occurrence, but pw 5 nawal singh has denied the presence of atma singh, pw 3 at the time of occurrence. the statement of pw 3 atmasingh, therefore, cannot be relied, upon. it is further pointed out that in ex.d 1 the statement of pw 3 atma singh recorded under section 161 cr. p.c., it has been stated that he and pw 7 inderjeet singh his nephew and deceased amir singh who is also his relative, came together from semla kala to nagar boarded the bus at about 10 00 a.m. to go to deeg to attend the date fixed in the court. however, he has denied this in his statement in the court and says that there was no court date in the court on that day and he had to file only an application in the court. he has also denied that deceased came along with him from semla kala to village nagar and has stated that deceased is not related to him. it is, therefore, contended that no reliance can be placed on pw 3 atma singh, who changes the statements as it suits him. it is also contended that pw 7 inderjeet singh has stated that he came to know about the names of the accused persons through the police. therefore, it was necessary to have held a test identification parade to establish the identity of the accused persons, which however has not been held. it is further pointed out that pw 3 and pw 7 when did not know the names of the accused persons and pw 3 says that when the police came, all the accused persons had run away, but still he gave the names of the accused persons in his statement under section 161 cr. p.c. it is further contended that admittedly, other passengers were also available at the site of occurrence when the police reached, but no independent witnesses have been produced in the case to support the prosecution story. it is pointed out that the learned trial court has disbelieved the prosecution witness in respect of 5 accused persons and acquitted them, but curiously enough believed the same witnesses to convict the accused appellant, which could not have been done. it is contended that there is no evidence to prove who is the author of grevious injury caused on the neck of deceased and, therefore, the accused appellant cannot be held to be responsible for causing death of the deceased in absence of any specific evidence on this point.5. mr. rizwan alvi, learned public prosecutor on the other has supported the judgment of the trial court and contends that since the names of the accused persons were mentioned in the fir itself there was no necessity to hold any test identification parade. he has pointed out that other 5 persons were rightly acquitted by the trial court as there was no evidence on record to show that they caused any injury to the deceased. he has pointed out that the motive for committing of crime is also fully proved as the same was committed to take revenge as sons of deceased amir singh had killed kashmir singh s/o chanku.6. we have heard learned counsel for the appellant and the learned public prosecutor and have gone through the judgment of the trial court and evidence on record.7. it may be pointed out that ex.p 8 is the inquest report, but does not bear the number of fir which is necessary to be mentioned in such reports. ex.p 1 the post mortem report also does not bear the number of fir was lodged in the case. the fir was lodged within half an hour of the occurrence and was actually sent to the police station for registration. pw 3 atma singh has stated in his statement that he was called at the police station and was asked to sign on 2 papers which were already written. however, he did not make enquiry regarding the papers he was made to sign. coupled with this fact is the fact that the fir was sent to court, which was only one furlong away from the police station, after 2 days i e. on the day on which this witness pw 3 was made to sign 2 documents at the police station which were already prepared. no explanation has been given why the fir was sent by delay of 2 days. in the case of ishwar singh v. state of up 1976 air sc 2423, it was held by the apex court of this country that the fir in respect of cognizable offence should be sent forthwith to a magistrate competent to take cognizance of the offence. the extra-ordinary delay in sending the fir is a circumstance, which provides a legitimate basis for suspecting that fir was recorded much later than the stated date and hour of affording sufficient time to the prosecution to introduce improvements and embellishment and set up a distorted version of the occurrence. in this case, also, the delay in filing the fir was of 2 days. air 1976 sc 156 was also relied upon in this context.8. in the case of chandra bhan v. state of rajasthan 1974 rlw 405, the fir was alleged to have been lodged on 25th october, 1975 but the endorsement made by the magistrate was on 28th october. how ever, the delay of 3 days was not explained. it was, therefore, held by this court that this extra-ordinary delay in sending the report is a circumstance, which provides a legitimate basis for suspecting that the fir was recorded much later than the stated date and hour, affording sufficient time to the prosecution to introduce embellishment and set up a distorted version of the occurrence. therefore, in the present case also we are of the opinion that the fjr is a suspicious document, on which no reliance can be placed.9. the case of mohd. abdul hafiz v. state of' andhra pradesh : 1983crilj689 is regarding the principles of test identification. this was a robbery case, in which no test identification parade was held. the accused was convicted on his identification in the court, by the victim after 4 months of the occurrence, ft was held by the apex court that no reliance can be placed on the identification done in the court. this is also a case where in the facts and circumstances as test identification should have been held. admittedly, no such identification parade was held. similar view has been taken in the case of knan and ors. v. state of kerala : 1979crilj919 and mohan lal gang' ram gehani v. state of maharashtra 1982 scc (cy.) 334.10. it is, therefore clear that the genesis of the story has not come to surface and this is a case of clear over implication. the report of serologist is also not available and test identification has also not been held, which was very necessary in the facts and circumstances of the ease. j n this case, 5 accused persons have been acquitted by the trial court as it did not believe to the prosecution evidence, but the trial court has convicted the accused appellant on the same evidence. we are, therefore, of the opinion that this is a case of over implication and the accused appellant deserves to be given the benefit of doubt.11. in the result, this appeal is accepted, the conviction and sentence passed by the additional sessions judge, deeg against the accused appellant is set-aside and he is acquitted of the charges levelled against him. the accused appellant is in jail and he shall be released forthwith if not required in any other case.