1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CRIMINAL APPEAL No. 418 of 1983 BANSHI LAL V/S STATE Date of Judgment : 17th April, 2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI C M TOTLA,J. Mr. MK GARG, Mr.PRADEEP SHAH, for the appellant Mr. ANIL UPADHYAY, PP, for the respondent. BY THE COURT: (PER HON'BLE GUPTA,J.) The appellant Banshi Lal, by this appeal seeks to challenge the judgment of the learned Sessions Judge, Udaipur dated 15.11.1983, passed in Sessions Case No.28/83, convicting him for the offence under Section 302 IPC, and sentencing him to imprisonment for life along with fine of Rs.100/-. According to the prosecution, the necessary facts are, that on 24.10.1982, one Uday Singh lodged a First Report at Police Station Ghantaghar, informing that informant's brother Jagannath Singh was employed on the 2 shop of accused Banshi Lal in Bombay and that some two months ago, as there was some dispute between the accused and his brother Jagannath, his brother came to Udaipur and sought employment at the shop of Raju Nai. It was then alleged that some 10-15 days ago accused Banshi Lal, who lives in Ganeshghati, came to Udaipur, as grandfather of Banshi Lal expired, and for the last 8-10 days there was altercation between the two. With this it was alleged that on that day at about 3 in the afternoon, the informant's brother was going to the shop of Raju, after seeing the shooting of a film, which was being enacted in Jagdish Chowk, while the informant was also going from his house, at Gadiadevra to Jadiyon Ki Hol after taking lunch, at that time, Deepak Gaur and Ram Lal Khatik met him, coming from opposite direction from towards Ganeshghati, and informed him, that Banshi Lal has inflicted knife injuries to Jagannath Singh, who is lying near Hanumanji temple, and that Radheyshyam and Madan Lal are standing there. Thereupon the informant rushed to the spot, and found Jagannath Singh lying upside down, in the pool of blood, and was bleeding. The victim was taken in a tempo by Deepak and Devi Lal Constable to General Hospital in emergency ward, where doctor declared him dead. Then leaving Deepak and Radheyshyam at General Hospital, he has come to lodge the report. On this report a case for offence under Section 302 IPC was registered, and after completing investigation, charge sheet was submitted, and the case was committed. 3 Learned trial Court framed charge under Section 302 IPC against the accused appellant, who obviously denied it. During trial, the prosecution examined 18 witnesses, including 4 purportedly eye-witnesses, being P.W.4, P.W.7, P.W.8, P.W.13, and the doctor, who conducted post mortem report has been produced as P.W.3 Dr. G.L. Dad. The prosecution tendered in evidence some 25 documents, while defence tendered in evidence some police statements of some witnesses being Ex.D1 to D5 and also examined D.W.1 Raghunath Lal in defence. After so completing the trial, the learned trial Court convicted and sentenced the accused as above. The learned trial Court found that P.W.8 and P.W.13 did not support the prosecution case and therefore, they were declared hostile. However, implicit reliance was placed on P.W.4 and P.W.7, being eye-witnesses and P.W.1 the informant. Likewise, the learned trial Court relied upon the circumstance, about one cover of the knife, being Article 4, having been found on the spot, which cover did fit in to the knife Article 3 recovered from the possession of the accused, on his information and at his instance. Though it was found, that knife Article 3 is not stained with blood, and according to the evidence of P.W.3 Dr. G.L. Dad, the injuries found on the person of the deceased could not be caused with that knife. Learned trial court also 4 relied upon the circumstance, that the accused remained absconded for a period of more than 2 months, and was arrested only on 12.1.1983, of course, the evidence of D.W.1, who was produced to establish the plea of alibi of accused was disbelieved, and thus the accused was convicted. Assailing the impugned judgment it was contended by learned counsel for the appellant, that the two eye- witnesses P.W.4 and 7 have erroneously been relied upon by learned trial Court, their evidence is full of discrepancies, not only contradictory inter-se, but also stands contradicted by the other evidence available on record. They being chance witnesses, the contradictions clearly show, that they are figuring as eye-witnesses, despite having not at all seen the incident. It was then submitted that the First Information Report in this case purports to have been lodged on 24.10.82, but then it has been received by the Magistrate only on 29.10.82, and there is no satisfactory explanation for all this long delay, rather this time was consumed by the Investigating Agency in planting or cooking up witnesses to be eye-witnesses, and for that purpose, the time was spent in making search of friends or acquaintances of the deceased, and after completion of that search, stories had been cooked up by antedating the FIR. While the learned trial Court has considered it as one of the circumstance, that the FIR was lodged immediately, and therein the names of these two 5 witnesses were there, thus, the whole approach is bad. On the other hand, learned Public Prosecutor supported the impugned judgment. We have considered the submissions, and have gone through the record very closely. To start with we may take the narration of the incident, as made by the two eye-witnesses P.W.4 and 7, and then would proceed to examine, as to whether their testimony inspires any confidence, or as to whether they were at all the eye-witnesses. P.W.4 Ram Lal has deposed that on the fateful day a shooting of an English Film was going on at Ghantaghar, and towards Jagdish Chowk, therefore, there was crowd. At about 2-3 PM he was going from towards Ghantaghar to towards Ganeshghati, on the shop of his brother Banshi Khatik, which is on the downward slope of Ganeshghati. When he proceeded bit ahead of Ghantaghar, near Dhabaiji Ki Haweli he heard cries, and saw the crowd. Then he went there and saw, that Jagannath Singh was bleeding, and Banshi Lal, accused present in the Court, who was armed with knife, was inflicting blows with knife to Jagannath Singh. He had seen Banshi Lal inflicting two knife blows to Jagannath Singh on the chest. He had also seen Deepak Tempowala (P.W.7) there. Then he went to call Uday Singh (P.W.1), the elder brother of Jagannath Singh, 6 and when he had negotiated the up-gradient of Ganeshghati, he met Uday Singh, who was coming from his house, who lives at the other side of slope. He stated that Uday Singh's brother has been inflicted injuries with knife by Banshi Lal. He stated that he does not know Madan Lal and Radheyshyam (P.W.13 and P.W.8 respectively). Uday Singh accompanied him on the spot. Jagannath Singh was lying on the road, and Uday Singh told, he is going to Police Station. The Police Station is at a distance about 50 fts, that day there was huge crowd in Police Station also, on account of the shooting. Then police came on the spot. Police was brought by Uday Singh. Then Police people called a tempo and carried Jagannath to hospital in the tempo. In other tempo, the witness went to the hospital. He has stated that Jagannath Singh earlier used to ply auto- rickshaw. Then he has stated that Jagannath Singh was working as a goldsmith preparing gold and silver ornaments at the shop of Banshi Lal in Bombay. The witness had seen Jagannath working on the shop of Banshi Lal at Bombay. Article 4 cover of the knife was lying at the place, where Jagannath Singh was lying. Then he has identified the articles being garments of Jagannath Singh, has proved certain photographs. Then he has stated that in the photo, two injuries X & Y, are visible on the chest, which he saw being inflicted. Then in cross-examination he has stated that on the place of incident there is Abadi, and people might be living there. He is not acquainted with the 7 locality as he lives in Khatikwada. He has some slight friendship with Jagannath, and he knows him for the last 6 months. Jagannath had gone to Bombay some 4-5 months before, and after one month thereafter this witness has gone to Bombay, and remained there for 4-5 days, and stayed at the shop of accused Banshi Lal itself. He has then stated that he had seen Jagannath at Udaipur since about one month before the incident, and used to see him at an interval of about 4 to 5 days. He has admitted that he is facing some 3-4 prosecutions, but denied to be under police surveillance. He stated that on the spot there were 10-12 people, out of whom he knows only Deepak, whom he could spot out later, and cannot say as to when Deepak appeared on the spot. However, he saw him near Hanumanji temple. Then he has stated that the head of Jagannath Singh was towards Ghantaghar and legs were towards Ganeshghati. Then he has stated that a woman vegetable vendor was sitting, but looking to the quarrel, she also ran away. He has stated that Deepak is not his friend but he knew him because of Uday Singh, and does not know as to where Deepak lives. Then he has stated that Deepak asked the witness, as to where is he going, to which the witness replied, that he is going to call the brother of Jagannath Singh. Thereupon Deepak followed him. He has denied the suggestion to be giving false statement on account of his friendship with Uday Singh and Jagannath Singh. He saw Deepak's tempo standing at Ghantaghar, at that time, the tempo brought by 8 police was not of Deepak, and that in that tempo Jagannath Singh and Deepak went, while he (we) went in tempo of Deepak, by picking up some other driver. He has stated that tempos are available at Ghantaghar and there from one driver was picked up, as the driver asked, as to what had happened, and where Deepak has gone, thereupon the witness told, that Deepak has gone to hospital and in tempo of Deepak, he should be dropped at the hospital. Police had brought tempo from towards Ghantaghar. Then he has stated that Uday Singh had returned after going to police station after 8-10 minutes, Uday Singh, Deepak and Police people had put Jagannath Singh in the tempo, in which, apart from Jagannath Singh, four persons were there on the rear seat, and one was sitting by the side of driver, which comprised of two police people, one Deepak, and Uday Singh. Since the witness did not see inside the tempo, he cannot say as to in what position Jagannath was carried, i.e. sitting or lying. Then he has stated, that he cannot say as to since how long scuffle was continuing between the deceased and the accused. However, when he reached, the scuffle was going on, and in his presence Banshi Lal inflicted two knife injuries. Then he has stated, that Jagannath was running while Banshi Lal accused was chasing. Then Jagannath Singh fell down, one knife injury was inflicted while Jagannath was running, and more injuries were caused with knife after Jagannath Singh fell down. Banshi Lal continued to inflict knife injuries. The witness 9 went to call Uday Singh, he did not go to intervene because seeing Banshi Lal armed with knife he got frightened. He has maintained, that he saw knife in the hand of Banshi Lal, which was 10 inch long. Then he also seen the cover of the knife made of leather, but then he cannot identify knife properly. Then he has stated, that in the mortuary police has asked him to come to police station for interrogation. However, when his statements were recorded Uday Singh did not come to police Station, rather Uday Singh was called the next day. He has denied the suggestion, that the tempo which Jagannath Singh used to ply, belonged to his brother, rather that belonged to his community person. Then he was confronted with some portion of his police statement being Ex.D/1, being A to B, wherein he deposed about Radheyshyam and Madan Lal being present on the spot. Then some questions were put to him about Banshi Lal's shop in Bombay. Then we come to the evidence of P.W.7 Deepak Gaur, the other alleged eye-witness. He has stated, that he had known Jagannath Singh and also knows the accused present in the Court. The witness plies auto-rickshaw. Then he has stated that on the fateful day after dropping a passenger on the top of Ganeshghati, he was coming down the slope, and saw Banshi Lal and Jagannath Singh grappling with each other, there was a crowd, he parked his tempo behind Hanuman temple. He did not see any weapon in the hand of 10 Banshi Lal, rather Banshi Lal and Jagannath Singh were grappling with hands only. There one Ram Lal was also there. Then he called Jagannath Singh's elder brother Uday Singh. When he went to Ganeshghati, Uday Singh met him on the way on the top of the Ghati, and both these persons came down to the place of incident, at that place they found Jagannath Singh lying on the ground in a pool of blood. Banshi Lal was not available there. On that day there was a shooting of some English film, and there was huge crowd between the Clock Tower to City Palace, the shops on Ganeshghati were also closed, Hanumanji temple is at a distance about 20-25 fts., the scuffle was taking place on the road, Jagannath Singh was having stab injuries on the chest, and was bleeding. Then he has proved the photographs. In cross-examination, the witness has deposed that he is plying tempo for last 6 years. Jagannath Singh was also plying tempo. Ram Lal was also occasionally plying tempo, the place of incident is at a distance about 1½ mile from his residence. At the time when Jagannath Singh and Banshi Lal were grappling, some 25-30 people had collected, out of whom he knows only Ram Lal, who was standing near him. Then he has stated, that when the witness started going, Ram Lal asked him as to where is he going, to which the witness replied, that he is going to call the brother of the victim. Then Ram Lal accompanied him. He has deposed to be knowing Uday Lal for last 2 – 2½ years. His tempo was parked outside the shops towards Mahawat Wadi, which place 11 is at a distance about 20-25 paces towards the Ghantaghar. Then he has stated that as soon as they reached at the top of Ganeshghati they found Uday Lal, at the place where Jagannath Singh was lying, some 50-60 people had collected, then he has stated, that he, Uday Lal and one constable put Jagannath Singh in the tempo. He does not know, as to wherefrom the tempo came, and who brought it. In that tempo, three persons were there, being the witness, Uday Lal, constable, and Jagannath Singh. He does not know, as to who was driving the tempo. According to this witness, Jagannath Singh was put on the knees of the passengers of the tempo, in which process the garments of the witness and Uday Lal got smeared with blood, though he does not know, as to whether garments of constable also received blood stains or not. He has then stated, that when they reached back with Uday Lal, another tempo was available on the spot, where Jagannath Singh was lying, and on account of crowd, he could not carry the victim in his tempo. After leaving Jagannath to hospital, after around 1½ hour he came back to take away his tempo. His statement was recorded by police on the next day, at that time Uday Lal was not with him. Ram Lal was examined in his presence. Then he was confronted with his portion A to B of his police statement Ex.D/2, which he disowned, wherein he has stated that he had parked his tempo towards Mahawat Badi and kept sitting therein. Then he has stated, that he was sitting in the tempo for the last 5 – 10 minutes. Then he has denied the 12 suggestion about giving false statement on account of his acquaintance with Jagannath Singh and his brother. He stated, that Uday Lal had called him to give statement in police station, at that time, Ram Lal was standing outside. Then he has stated that he had left Ram Lal on the spot, and when after dropping Jagannath in the hospital, he was returning, he found Ram Lal standing outside the hospital. Then in the end of the cross-examination he has stated, that he did not see the stab injuries on Jagannath on the spot, but had seen them at the house of Uday Lal. Then we may better come to the evidence of P.W.1 Uday Singh. He has stated that Jagannath Singh was his younger brother and was working at shop of Raju Nai as a silversmith, and was earlier working alike with accused Banshi Lal, present in the Court. Prior to the incident deceased had come from Bombay to Udaipur. Banshi Lal who works in Bombay had come to Udaipur some 7-8 days before the incident, and thereafter there had been some dispute between the two, on the aspect of cash dealings. According to him, shop of Raju Nai, where Jagannath Singh was working is situated near Karjali house, which is on the way between Ganeshghati and Mahawat Wadi. With this he has stated, that about 5-6 months ago at about 3-3.15 in the noon, some shooting of English film was going on in Jagdish Chowk, the witness had come to his house to take lunch, and was returning on the job, from his house situated at Gadiadevra 13 through Ganeshghati when he reached at top of Ghati, Deepak and Ram Lal came, and informed, that his brother has been stabbed by Banshi Lal near Hanumanji temple in Ganeshghati. Then he rushed, and found his brother lying upside down, and bleeding from the chest. He did not notice as to who other persons were near him. Then he has stated that police people had also come there, some 40-50 people had collected, and Deepak and Ram Lal also followed him. Then the witness and Deepak etc. put Jagannath Singh in the tempo and carried him to hospital. In that tempo this witness, Deepak, and Devi Lal were there, and in another tempo, which was following, Radheyshyam, Madan Lal, Ram Lal and one constable were there. Jagannath Singh was declared dead in the hospital. Then he went to police station to lodge a report, which is Ex.P/1. He has proved the signatures thereon. Then he has proved various memos. In cross-examination he has deposed, that he saw Ram Lal today down stairs in the Court, and did not see him outside the Court. Inquest report was prepared at about 5 PM. The garments of the witness got smeared with blood in the process of putting his brother in the tempo. The victim was put on the legs of all the occupants of the tempo, head was on the legs of Deepak, who was sitting on the right hand side, Devi Lal was also in the tempo. He has stated that police station is near Ganeshghati, where by chance one tempo was found. He has maintained, that he called the tempo, whose driver was not his acquaintance. He has denied 14 the suggestion, about his having not carried the victim to hospital in the tempo, rather to have reached hospital at about 7 in the evening. Then he has stated that he told the police that his brother had been killed. Thereupon the police people entertained the report. He has maintained, that he told the police, that his brother has been killed by Banshi Lal. Thereupon his signatures were obtained on the report. He has stated, that on the spot, head of Jagannath Singh was near drain towards the south and was lying outside the shop of a Bohra, which is at a distance of 30-35 paces from the Hanumanji temple. Deepak and Ram Lal were coming to call him from his house, who are in his acquaintance for 2½ – 3 years. They know his house, because of the deceased, and might be his friends also. He has stated, that Deepak plies tempo, while his brother was also earlier plying tempo. Then he has stated that the police station is at a distance about 20-25 paces from the place, where Jagannath Singh was lying. Jagannath Singh was straightway carried to hospital, and not to police station, he was wearing the same garments when he went to the police station to lodge the report, and did not notice as to whether they were stained with blood or not. Then he maintained, that he had gone all alone to lodge the report. Ram Lal and Deepak did not accompany him. His statements were recorded on that very day, while statements of Deepak and Ram Lal were recorded at about 6 in the evening. He has stated, that from hospital he first went to his house, and 15 thereafter after about 10-15 minutes he went to police station, and thereafter, Ram Lal and Deepak reached the police station. He has stated that when his statements were being recorded, these two persons came to police station on their own. He has denied the suggestion, about his having disclosed the names of Deepak and Ram Lal to the police after three days of the incident. From a collective reading of the statements of these three witnesses, it is more than clear, that the evidence of the three witnesses is thoroughly discrepant, and demolishes each other. According to P.W.7 the accused was not armed with any weapon, and the accused and deceased were grappling with hands only. Obviously when he claims that P.W.4 and 7 both went together to call Uday Singh, and when P.W.4 wants the Court to believe that in his presence two knife injuries were caused on the chest of the deceased, obviously it could not be, that one witness would see the accused empty handed, and the other witness would see the accused causing stab injuries to the victim, if the two witnesses were there on the spot, had seen the incident. Then according to P.W.4 the victim was running, and while so running one knife blow was caused to the victim, and after the victim fell down more injuries with knife were caused. It is nowhere the case, that there was any scuffle, and after the scuffle, the victim ran away, and in that process, the occurrence occurred as P.W. 4 16 wants the Court to believe, and then the two witnesses went to fetch Uday Singh. Likewise if the version of P.W.4 were required to be believed, then obviously injuries must have been on the back portion of the deceased, while the two injuries No.1 and 2, rather all injuries, are on the front portion of the body of the deceased. Body was lying upside down, and obviously there is no injury available on the person, which might have been caused after the deceased had fallen down. This, in our view, is a very material contradiction between the statements of P.W.4 and 7, and the prosecution has not clarified the things, in re- examination of the witness P.W.7. Then both these witnesses P.W.4 and 7 are over enthusiastic to assert, by deposing himself as the truthful witness, and in that process, had demolished each others' evidence. In this regard it may