Mohan Singh & Ors. Vs. State of Rajasthan D.B. Criminal (Jail) Appeal No. 70/2004 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Mohan Singh & ors. Versus State of Rajasthan. D.B. Criminal (Jail) Appeal No.70/2004 against the judgment and order dated 06-12-2003 passed by the Additional Sessions Judge (Fast Track), Rajsamand, Camp Udaipur, in Sessions Case No. 27/2003. ... Date of Judgment: June 22, 2010 PRESENT HON'BLE MR. JUSTICE GOVIND MATHUR. HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI. Sarvashri Deepak Menaria, Shambhoo Singh Rathore and Kalu Ram Bhati, for the appellant-accused. Mr. A.R. Nikub, Public Prosecutor for the State. BY THE COURT: (Per Hon'ble Joshi, J.) By this D.B. Criminal (Jail) Appeal, appellants Mohan Singh, Mane Singh alias Maniya and Devi Singh, have assailed the judgment and order dated 06-12-2003 passed by the Additional Sessions Judge (Fast Track), Rajsamand, Camp Udaipur (for short, “the trial Court” hereinafter), whereby the appellants have been convicted for the offences under Sections 302/34 and 341 IPC and sentenced to imprisonment for life and a fine of Rs.1000/-, in default of payment of fine to further Mohan Singh & Ors. Vs. State of Rajasthan D.B. Criminal (Jail) Appeal No. 70/2004 2 undergo three months simple imprisonment for the offence under Section 302/34 IPC; and one months' simple imprisonment for the offence under Section 341 IPC. The facts of the case, in succinct, are that on 02-12-2002, complainant Manna Lal Gamar lodged a written report with Police Station, Ogana to the effect that at 8.00 p.m. on the day before, his father Rajmal, who was coming home alongwith Bheru Singh and Dharam Chand, was attacked by some unknown persons and murdered while attacking with sharp-edged weapons and stones. On this report, FIR No.122/2002 under Sections 341, 302 IPC was registered and the investigation ensued. After conclusion of investigation, the police arraigned five persons for the said offence in the Court of the Additional Chief Judicial Magistrate, Jhadol, from where the case was committed to the Court of Sessions Judge, Udaipur and ultimately the case was transferred to the trial Court. The learned trial Court, framed charges against the accused under Sections 148, 341, 302/149 IPC, to which they denied the charges and claimed to be tried. The prosecution, in support of its case, examined 23 witnesses and produced documentary evidence from EX.P/1 to EX.P/40. The statement of the appellants alongwith co-accused were recorded under section 313 Cr.P.C., wherein they denied allegations and claimed to be tried. In defence, neither any oral nor documentary evidence was adduced by the appellants and co-accused. Mohan Singh & Ors. Vs. State of Rajasthan D.B. Criminal (Jail) Appeal No. 70/2004 3 After hearing the learned counsel for the accused and the learned Public Prosecutor and appreciating the evidence on record, the learned trial Court, vide impugned judgment and order dated 06-12-2003, acquitted other co-accused, viz. Kishna and Poon Singh, of the offences under Sections 341 and 302/34 IPC; however convicted and sentenced the appellants as stated above. Hence this criminal jail appeal by the present appellants. We have heard learned counsel for the appellants and the learned Public Prosecutor for the State, carefully gone through the impugned judgment and order, as also the record of the case. The main contention of the learned counsel for the appellants is that FIR (Ex.P.1) was lodged at the Police Station Ogana on 02.12.2002 in respect of the alleged incident of 01.12.2002 said to happen at 8.00 p.m. and the FIR (Ex.P.1) does not contain the names of the accused appellants and it is only stated that 4 unknown person committed murder of the father of the complainant Manna Lal (P.W.2) with stones and some sharp-edged weapon. He has further contended that as per the prosecution story, there were 2 eye-witnesses, namely, P.W.1 Dharmchand and P.W.10 Bheru Singh and as per the cross-examination available on record of these 2 witnesses, before filing of the FIR at the police station by Manna Lal (P.W.2), the fact of causing injuries by accused persons, namely, Mane Singh, Mohan Singh, Devi Singh, Poon Mohan Singh & Ors. Vs. State of Rajasthan D.B. Criminal (Jail) Appeal No. 70/2004 4 Singh and Kishna, was disclosed to the FIR lodger Manna Lal (P.W.2) and still the fact of non-bearing of the names of the accused in the FIR makes the story of the prosecution doubtful, unreliable and untrustworthy. Further it is submitted that vide judgment dated 06.12.2003, the learned trial court acquitted two accused persons, namely, Kishna S/o Lala Gamar and Poon Singh S/o Dhool Singh Garasia out of 5 accused persons and now in this appeal this court is to appreciate the evidence against 3 appellants, namely, Devi Singh S/o Dhan Singh, Mane Singh @ Maniya S/o Nathu Singh Garasia and Mohan Singh S/o Chain Singh Garasia. Hence, it is urged that the accused appellants may be acquitted from the charges levelled against them by allowing this appeal. Learned Public Prosecutor while controverting the above arguments of the learned counsel for the appellants vehemently argued that the FIR is only a document to move the police in motion for investigation and it is not necessary that it should bear each and every minute fact of the incident or the names of the accused persons. It may be fatal in appropriated cases, but it depends upon the facts of each case and particularly in this case the FIR lodger Manna Lal (P.W.2) was not an eye-witness and although the eye-witnesses Dharmchand (P.W.1) and Bheru Singh (P.W.10) stated in their cross-examination that they have informed the son of the Mohan Singh & Ors. Vs. State of Rajasthan D.B. Criminal (Jail) Appeal No. 70/2004 5 deceased, who is the complainant in this case, regarding the overt act of each accused and the names of all the person who were responsible for causing the death of the deceased, but the mental status of the complainant or near relatives of the deceased sometimes may not be so that they can incorporate the names of the accused in the FIR and not mentioning the names of the persons causing injuries or death in itself is no ground for not relying upon the entire prosecution story. Hence, it is urged that the judgment and sentence passed by the learned trial court requires no interference and this appeal deserves to be dismissed. We have given our thoughtful consideration to the rival contentions made by both the parties and carefully scanned and evaluated the evidence available on record. The learned trial court while recording the order of conviction held the accused appellants Devi Singh, Mane Singh @ Maniya and Mohan Singh guilty under Section 341 and 302/34 IPC. There is evidence on record of 2 eye-witnesses, namely, P.W.1 Dharmchand and P.W.10 Bheru Singh that for 3 to 4 days they were detained by the police and they have categorically asserted in the evidence that they informed the complainant Manna Lal (P.W.2) about the whole incident and the names of the accused persons on the same day (date of the incident). P.W.2 Mannalal who happens to be the son of the Mohan Singh & Ors. Vs. State of Rajasthan D.B. Criminal (Jail) Appeal No. 70/2004 6 deceased and also lodged the first information report corroborates the evidence of both the eye-witnesses, namely, P.W.1 Dharmchand and P.W.10 Bheru Singh on the point that both these witnesses disclosed the names of the accused persons on the same day (date of incident). In the cross- examination, P.W.2 Mannalal categorically deposed that while he visited the site of incident, he was informed about the names of the accused by P.W.1 Dharmchand and P.W.10 Bheru Singh. He further stated in his cross-examination that he lodged the first information report against unknown persons and in the same breath he further stated that he has written the names of the accused persons on the back of the first information report, but the first information report does not bear the names of the accused persons. If we read the first information report (Ex.P.1) in conjunction with the statement of the two eye-witnesses, namely, P.W.1 Dharmchand and P.W.10 Bheru Singh, this fact is well-proved that before filing of the first information report in the police station, the fact of the names of the accused persons was well within the knowledge of P.W.2 Manna Lal. Moreover there are inherent contradictions in the statements of the Investigating Officer Chhagan Lal (P.W.22) and other witnesses, namely, P.W.1 Dharmchand, P.W.2 Mannalal and P.W.10 Bheru Singh, regarding the fact of availability of the eye-witnesses to the Investigating Officer for recording of their statements. As per Mohan Singh & Ors. Vs. State of Rajasthan D.B. Criminal (Jail) Appeal No. 70/2004 7 the version available on record of the Investigating Officer Chhagan Lal (P.W.22), both the eye-witnesses could be available to him only on the next day of the incident for recording their statements during investigation, whereas P.W.1 Dharmchand, P.W.2 Mannalal and P.W.10 Bheru Singh categorically and emphatically deposed that on the date of incident, police came to the site and they were present there also. So far as the contention as urged by the learned Public Prosecutor that it is well-settled principle of law that first information report is only a document to move the police in motion and it is not necessary that it should contain every minute details of the incident/crime, but again it depends on the facts of each case. There will be cases in which names of the assailants may not come to the knowledge of the first information lodger before filing it in the police station and in those cases it is not necessary that first information report should bear the names of the accused persons. In this particular case, if we conjointly read the statements of the witnesses, namely, P.W.1 Dharmchand, P.W.2 Mannalal, P.W.10 Bheru Singh and P.W.22 Chhagan Lal, it appears that the Investigating Officer wanted to suppress the fact of knowledge of the names of the accused persons prior to filing of the first information report and thus, the version of P.W.22 Chhagan Lal creates serious doubts about the prosecution story. In this case, since the names of the accused persons were within the knowledge of the Mohan Singh & Ors. Vs. State of Rajasthan D.B. Criminal (Jail) Appeal No. 70/2004 8 first information lodger, i.e. P.W.2 Mannalal, and in view of his statement that on the back of the report he wrote the names of the accused, the contention as urged by the learned Public Prosecutor does not stand. Apart from undue delay in lodging the first information report which has not been satisfactorily explained, there is another reason also to throw the testimony of P.W.1 Dharmchand and P.W.10 Bheru Singh because there is irreconcilable inconsistency between their oral statement and the statement contained in the FIR. The names of both the eye- witnesses find mention in the FIR, but the names of the culprits are significantly omitted. As per the FIR, the assailants were unknown persons and on the contrary, these two eye-witnesses as also P.W.2 Mannalal who lodged the FIR have categorically stated on oath that soon after arrival, these two eye-witnesses disclosed the names of the assailants also while narrating the incident to the lodger of the FIR P.W.2 Mannalal and at the same time non-bearing of the names of the assailants in the FIR creates serious doubts on the prosecution story. Secondly, the two eye-witnesses, namely, P.W.1 Dharmchand and P.W.10 Bheru Singh were suspects of the crime and therefore, they were also detained in the police custody as admitted by both these witnesses, thus, being interested in shifting the guilt to others they could tell anything untrue to any extent and they had motive to involve any other person in place Mohan Singh & Ors. Vs. State of Rajasthan D.B. Criminal (Jail) Appeal No. 70/2004 9 of themselves. The motive as put forth in the prosecution story is also of weak nature. The ocular evidence is not reliable and after its exclusion, circumstantial evidence as led by the prosecution also falls flat on the floor as the circumstantial evidence alone is not of such nature which can connect the accused appellants with the crime. In the entirety of things, it can be said that the prosecution has failed to prove the guilt to the hilt. The evidence as it exist demand extending of benefit of doubt to the accused appellants. Resultantly, on the discussion made above, benefit of doubt is given to the accused appellants and thereby the appeal preferred by the appellants Devi Singh S/o Dhan Singh, Mane Singh @ Maniya S/o Nathu Singh Garasia and Mohan Singh S/o Chain Singh Garasia is allowed and judgment of conviction and order awarding sentence passed by Additional Sessions Judge (Fast Track), Rajsamand, Camp Udaipur in Sessions Case No. 27/2003 is set aside and the appellants named above are acquitted of the charges levelled against them. The appellants named above be set at liberty forthwith if not required in any other case. (KAILASH CHANDRA JOSHI), J. (GOVIND MATHUR), J. mcs