IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T 1.Hariya son of Prahlad Vs. State of Rajasthan through Public Prosecutor D.B.Crim inal Appeal No.455/ 2003 2. Dhanpal Vs. State of Rajasthan through son of Kishori lal Public Prosecutor D.B.Crim inal Appeal No.226/ 2003 D.B. Criminal Appeals under Section 374 of the Code of Criminal Procedure against the judgment & order dated 21.1.2003 passed by the Additional Sessions Judge (Fast Track), No.1 Kota in Sessions Case No. 89/ 2001. Date of Judgment 17th Decem ber, 2009 PRESENT HON'BLE MR. JUSTI CE DALI P SI NGH HON'BLE MR. JUSTI CE K.S. CHAUDHARI Mr.Biri Singh Sinsinwar ) for accused-appellant Mr.Harendra Singh Sinsinwar ) Hariya Mr.Rajesh Choudhary, ) Mr.Sanjay Mehrishi ) for accused-appellant Mr.Tarun Jain, ) Dhanpal Mr.Harsh Kulshretha ) Mr.Timan Singh ) Mr.J.R.Bijarnia Public Prosecutor for the State. * * * * REPORTABLE BY THE COURT: ( Per Hon 'ble Mr . Ch au dh ar i,J.) These appeals have been filed against the judgment dated 21.1.2003 passed by Additional Sessions Judge (Fast Track) No.1, Kota in Sessions Case No.89/ 2001 by which he convicted accused appellant- Hariya under Section 302 IPC and accused-appellant- Dhanpal under Section 302/ 34 IPC and sentenced each of them to undergo life im prisonm ent and fine of Rs.1,000/ - and in default of payment of fine to undergo six months simple imprisonment and acquitted them under Section 148, 325/ 149, 324/ 149, 323 IPC and acquitted other 9 accused-persons under Section 148, 302/ 149, 325/ 149, 324/ 149 and 323 IPC. Both appeals arise out of same judgment hence, decided by common judgm ent. Brief facts of the prosecution case are that injured Amarjeet Singh son of Gurudev Singh gave Parcha Bayan Ex.P/ 37 on 8.10.89 at 11.20 a.m. and alleged that at 10.30 a.m. he alongwith Amarjeet Singh and Hari Singh was coming and as they reached near the house of Roop Chand Dhakad 10 to 15 persons armed with Gandasa, sword came out from the house of Roop Chand and accused-Dhanpal, brother of Roop Chand, inflicted injury with sword (Kripan) on his head and accused-Hariya son of Prahlad Patel stabbed sword in his abdomen and one of the co-accused caused stab injury with Sariya on his right thigh and other assailants inflicted blows with lathi and sariya. He further narrated that injuries with sariya and sword were also inflicted by assailants on the body of his companion Amarjeet Singh and Hari Singh and the tyre of his motorcycle / was cut by kulhari blow and the motorcycle is lying on the spot. On hue and cry his younger brother Ranjeet Singh and servant Babulal came on the spot. Dhanpal and Hariya ran away from the spot presuming them to have died. He further narrated that he has quarrel with both accused- persons in relation to irrigation of the crop in the land. On this parcha bayan case under Section 147,148,341,307,149 IPC was registered and during investigation injured Amarjeet Singh son of Shri Gurudev Singh died, so offence under Section 302 IPC was added and after completion of investigation challan under Section 148,302,307,326,325,324,323,427,149 IPC and Section 4/ 25 Arms Act was filed against the accused- appellants and other 9 accused-persons in the Court of Additional Munsiff & Judicial Magistrate No.2 (South), Kota. The case was committed to the Court of Sessions Judge, Kota which was transferred to the Court of Additional Sessions Judge No.1, Kota where charges under Section 148,302/ 149,325/ 149,324/ 149,323 IPC were framed against the appellants and other 9 accused persons to which they denied. During trial the case was transferred to the Court of Additional Sessions Judge No.5, Kota and from there case was transferred to the Court of Additional Sessions Judge (Fast Track) No.1, Kota. Prosecution examined 17 witnesses and after recording statements of accused-persons under Section 313 Cr.P.C. the defence examined one witness. After hearing arguments the accused-appellants were convicted and sentenced as aforesaid and other accused- persons were acquitted. Heard learned counsel for the parties and perused the record. Learned counsel for the appellants argued that dying declaration is not a reliable document and further submitted that FIR itself is a suspicious document and prosecution has not submitted any explanation for delay in sending FIR to the Court and further submitted that medical evidence does not corroborate the oral evidence and looking to the contradictions in the statement of witnesses no case is made out against the accused- appellants particularly when other co-accused have been acquitted by the trial Court by disbelieving statement of witnesses and the identification memo and the learned trial Court has committed error in convicting the accused-appellants hence, appeal may be accepted and accused-appellants may be acquitted of the charges levelled against them. On the other hand Learned Public Prosecutor argued that the dying declaration coupled with oral testimony of the eye witnesses and postm ortem report the prosecution has proved the case beyond reasonable doubt against the accused-appellants and the judgment passed by the trial Court is in accordance with law, hence, appeal of the appellants may be dism issed. Statements of prosecution witnesses coupled with Ex.P/ 4 Panchayatnama Lash and postmortem report Ex.P/ 32 and statements of the accused-persons under Section 313 Cr.P.C. and statement of DW1-Babulal it has been proved beyond reasonable doubt that Amarjeet Singh son of Gurudev Singh died on account of injuries inflicted on his body on 8.10.89. As far as the dying declaration Ex.P/ 35 is concerned, PW12-Girraj Prasad Gupta, the then Special Judicial Magistrate, has stated that the SHO submitted a requisition Ex.P/ 33 before him and on that requisition he reached the Hospital and recorded the dying declaration Ex.P/ 35 of injured- Amarjeet Singh at 12.20 p.m. He further stated that Amarjeet Singh was identified by his brother Ranjeet Singh, who also signed the dying declaration. He also stated that Dr.N.K.Gupta made an endorsement that the injured is fit to give the statement. In his cross examination he admitted that he is not aware what treatment was going on at the time of recording dying declaration. When he reached the Hospital the injured was conscious, but crying on account of pain. Doctor, Nurses and Compounders were on the bed side of the injured. He further stated that he recorded the dying declaration within 10 minutes. PW14-Ranjeet Singh, who is brother of deceased and attesting witness of dying declaration has neither stated that the dying declaration was recorded in his presence by the Magistrate nor proved his signatures on the dying declaration Ex.P/ 35. Prosecution has also not examined Dr.N.K.Gupta, who has made an endorsement on the top of the dying declaration Ex.P/ 35 about the fitness of the injured for giving the statement. PW15-Puna Ram SHO has stated that he submitted requisition Ex.P/ 33 to the Magistrate and got the dying declaration recorded by the Magistrate. He also stated that he also gave a requisition Ex.P/ 33 to the Doctor to enquire about the condition of the other injured-Amarjeet Singh son of Shri Harbans Singh. He further stated that after recording the dying declaration he reached the police station and on the basis of Parcha Bayan he chalked FIR No.166/ 89 (Ex.P/ 2). It has been held by the Apex Court in the case report in 2 0 0 7 I X AD ( SC) 7 3 Nallapat i Siv aiah Vs. Su b- Division al Officer ,Gu n t u r , A.P. that the Court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition mentally and physically to make such statem ent. In the aforesaid case casualty medical officer, who was present at the time of recording the dying declaration, was not examined and the evidence of Professor of Forensic Medicine casts considerable doubt as regards the condition of the deceased to make a voluntary and truthful statem ent and accused was given benefit of doubt and was acquitted under Section 302 IPC. In the present case non examination of Dr.N.K.Gupta casts a doubt on the fitness of deceased-Amarjeet Singh at the tim e of making the dying declaration and in such circumstances, dying declaration cannot be relied on. Perusal of the record reveals that there is only the statement of PW12-Girraj Prasad Gupta to corroborate this fact that he recorded the dying declaration of injured Amarjeet Singh. In his statement he has not given the father’s name of the injured Amarjeet Singh though in dying declaration Ex.P/ 35 name of father of injured Amarjeet Singh has been mentioned. PW14-Ranjeet Singh has no where stated that this dying declaration was recorded in his presence. PW15-Puna Ram has simply stated that he got the dying declaration recorded from the Magistrate, but he has no where stated that it was recorded in his presence. PW12- Girraj Prasad Gupta has admitted in his cross exam ination that at the time of recording dying declaration no police personnel was present there though Doctor, Nurses and Compounders were near the bed at the time of recording the dying declaration. Learned counsel for the appellants submitted that it is doubtful in the facts and circumstances that the dying declaration Ex.P/ 35, which has been recorded was that of the deceased Amarjeet Singh son of Gurudev Singh, as another injured Amarjeet Singh s/ o Harbans Singh was also admitted in the same ward and in his case also a requisition was given by PW15-Puna Ram-the Investigating Officer to the Magistrate for recording his dying declaration and in absence of the identity of the deceased by the doctor who certified the patient as capable of giving the statement being exam ined by the prosecution it was doubtful which of the two Amarjeet Singh gave the statem ent, hence it could not be believed. It is true that except statem ent of PW12-Girraj Prasad Gupta there is no other evidence on record to prove this fact that dying declaration Ex.P/ 35 was given by deceased-Amarjeet Singh son of Gurudev Singh because neither Dr.N.K.Gupta was examined by the prosecution nor Ranjeet Singh has corroborated this fact nor other compounder and nurses present near the bed were exam ined by the prosecution. No doubt on the top of dying declaration it has been mentioned that this dying declaration pertains to FIR No.166/ 89 Police Station Railway Colony and on the next line “MSWV Bed No.11” has been mentioned. As far bed of deceased- Ajmarjeet Singh is concerned, requisition Ex.P/ 33 given by PW15-Puna Ram to Special Judicial Magistrate does not bear the bed num ber of deceased-Amarjeet Singh and prosecution has not exhibited his injury report, Bed- Head-Ticket, Operation Notes of deceased-Amarjeet Singh and in the absence of these important documents it is not proved beyond reasonable doubt that dying declaration Ex.P/ 35 recorded by Special Judicial Magistrate was that of deceased Amarjeet Singh son of Gurudev Singh specially when another injured-Amarjeet Singh son of Harbans Singh, who is brother in law of deceased-Amarjeet Singh son of Gurudev Singh who was also injured in the same incident, was also admitted in the Hospital in the same Ward. On the top of dying declaration Ex.P/ 35 FIR No.166/ 89 has been written by the Magistrate, but it the is admitted case of the prosecution that Parcha Bayan Ex.P/ 37 which is said to have been recorded at 11.20 a.m. endorsement regarding FIR Number was made at 1.30 p.m. and check FIR Ex.P/ 38 was prepared at 1.30 p.m. In such circumstances, it becomes suspicious that on Bed No.11 Amarjeet Singh son of Gurudev Singh was lying and his dying declaration was recorded. PW13-Dr.M.M.Sharma, who examined injured- Hardeep Singh and Amarjeet Singh son of Harbans Singh, has stated that he examined the injuries of both the injured persons and prepared injury report Ex.P/ 36 at 11.40 a.m.and Ex.P38 at 11.45 a.m.. He has further stated that he gave requisition to police personnel for recording the dying declaration of Amarjeet Singh son of Harbans Singh whose general condition was not good. That requisition has also been suppressed by the prosecution. In such circum stances it cannot be denied that the dying declaration Ex.P/ 35 recorded by the Magistrate could be that of Amarjeet Singh son of Harbans Singh-the injured instead of Amarjeet Singh son of Gurudev Singh-the deceased. PW15-Puna Ram has also admitted in his statement that after getting the dying declaration recorded from the Magistrate he reached to the police station and prepared check FIR No.166/ 89. If FIR was chalked after recording the dying declaration how FIR No.166/ 89 was recorded by the concerned Magistrate in the dying declaration Ex.P/ 35 is not clear. It gives suspicion to the fact that dying declaration Ex.P/ 35 was recorded at 12.20 p.m. PW15-Puna Ram has admitted in his cross exam ination that when injured persons were brought to the police station he became aware of the whole incident, but he did not chalk down the FIR and sent the injured persons to the Hospital. After reaching the Hospital he obtained opinion of the doctor on requisition Ex.P/ 33 and then recorded Parcha Bayan Ex.P/ 37. It took 30 to 45 minutes in subm itting requisition Ex.P/ 33 to the Magistrate and bringing the Magistrate to the Hospital. He has also stated that he started recording parcha bayan Ex.P/ 37 at 11.20 a.m. If these facts are admitted we come to the conclusion that parcha bayan Ex.P/ 37 was recorded at 11.20 a.m. and before that PW15-Puna Ram obtained opinion from the doctor on Ex.P/ 34. There is endorsement of doctor at 11.50 a.m. in which it has been mentioned that the patient’s condition is serious, “Call Magistrate for dying declaration”. As per statement of Puna Ram after getting endorsement of doctor on Ex.P/ 34 he recorded parcha bayan Ex.P/ 37 then in such circumstances parcha bayan could not have been recorded at 11.20 a.m. and thus, parcha bayan itself becomes doubtful. If it is presumed that parcha bayan was recorded at 11.20 a.m. and it took about 10 minutes in recording parcha bayan as endorsement of police was made at 11.30 a.m. and after that he moved requisition Ex.P/ 33 to the concerned doctor who gave his opinion at 11.50 a.m. then only after that he could have moved to the Court and submitted the requisition Ex.P/ 33 to the Magistrate for recording dying declaration and in bringing Magistrate to the Hospital which took about 30 to 45 minutes, then recording of dying declaration could not have taken place atleast before 12.20-12.35 p.m., whereas endorsem ent about fitness for statem ent of the injured on the top of dying declaration Ex.P/ 35 is of 12.15 p.m. and as per statement of PW12-Girraj Prasad Gupta the whole statement was recorded at 12.20 p.m. which is apparently not possible to believe. As per the statement of witnesses at the tim e of recording the dying declaration injured-Amarjeet Singh son of Gurudev Singh was crying on account of pain then dying declaration Ex.P/ 35 covering one and half page could not have been recorded by the Magistrate within 5 minutes. In such circumstances, it can be inferred that though dying declaration Ex.P/ 35 was completed by 12.20 p.m., but endorsement regarding fitness for statement by Dr.N.K.Gupta was not made at 12.15 p.m., but earlier in time and statement of PW15-Puna Ram cannot be believed that after getting opinion of doctor on requisition Ex.P/ 34 he recorded parchaya bayan Ex.P/ 37 and then moved to the Magistrate for recording the dying declaration. Another aspect is the absence of the injury report and bed head ticket or treatment record of deceased-Amarjeet Singh son of Gurudev Singh which makes it suspicious whether Amarjeet Singh son of Gurudev Singh was at all admitted in the hospital while he was alive. Looking to the nature of the injury on his body shown in the postmortem report Ex.P/ 32, if deceased-Amarjeet Singh’s injury report was prepared by the doctor alongwith other injured persons it is not clear why that has been suppressed. PW15-Puna Ram stated that he got information regarding death of Amarjeet Singh at 7.40 p.m. whereas PW14-Ranjeet Singh has admitted that he died between 4-5 p.m. As observed earlier, Bed-Head-Ticket and Surgical Notes have also been suppressed and in such circumstances this possibility cannot be ruled out that injured-Amarjeet Singh son of Gurudev Singh died even before he was taken to the hospital and the dying declaration Ex.P/ 35 was given by other injured-Amarjeet Singh son of Harbans Singh disclosing his father’s name as Gurudev Singh. On comparison the signatures of deceased- Amarjeet Singh on parcha bayan Ex.P/ 37 do not tally with signatures of Amarjeet Singh on the dying declaration Ex.P/ 35 whereas signatures of PW8-Amarjeet Singh son of Harbans Singh on his statement recorded in Court is similar to the signatures of Amarjeet Singh son of Gurudev Singh on the dying declaration Ex.P/ 35. In such circumstances, it casts a doubt and cannot be ruled out as a possibility that the dying declaration Ex.P/ 35 was given by injured-Amarjeet Singh son of Harbans Singh instead of Amarjeet Singh son of Gurudev Singh- the deceased. Learned counsel for the appellants alternatively argued that even if dying declaration Ex.P/ 35 was given by deceased-Amarjeet Singh it cannot be believed because it is a tutored one. From the statement of PW3- Balraj Singh it becomes clear that other family members of the deceased reached to the Hospital before recording the dying declaration. In such circumstances this possibility cannot be ruled out that the dying declaration was given by Amarjeet Singh after due deliberation with his family members and in such circumstances the dying declaration in which there are many infirmities cannot be relied on. It is admitted position that on parcha bayan Ex.P/ 37, police endorsement was made on 8.10.89 at 1.30 p.m . in which FIR No.166/ 89 has been mentioned even then this number has been mentioned in requisition Ex.P/ 33 and dying declaration Ex.P/ 35 before the chack FIR was drawn and no FIR No. was available till 1.30 p.m. It seems that either Check-Ex.P/ 38 was prepared before recording of dying declaration at 12.20 p.m. or dying declaration was recorded after 1.30 p.m. as Check Ex.P/ 38 was drawn at 1.30 p.m. As per statement of PW15-Puna Ram Amarjeet Singh died before 7.40 p.m. whereas PW14-Ranjeet Singh, brother of deceased, has stated that Amarjeet Singh died at 4 – 5 p.m. If dying declaration was recorded after 1.30 p.m. and before 4.00 p.m. at that time condition of Amarjeet Singh must be critical and he would not have been in a position to make such a dying declaration particularly when he was undergoing treatment for saving his life. In absence of other medical record it can not be ruled out that deceased-Amarjeet Singh died before reaching hospital. In such circum stances, no reliance can be placed on this dying declaration. Learned counsel for the appellants argued that FIR Ex.P/ 37 is not the first FIR, hence, this document is hit by Section 162 Cr.P.C. and cannot be read in evidence. As per statements of witnesses PW3-Balraj Singh, PW6-Hardeep Singh, PW8-Amarjeet Singh, PW14- Ranjeet Singh, just after the occurrence all the three injured persons were taken to police station and facts regarding incident were revealed to the SHO. PW15-Puna Ram has adm itted in his cross examination that all the injured persons were brought in the jeep to the police station and persons accompanying the injured persons informed him about the whole incident. He further admitted that he came to know about the whole incident, but he did not chalk FIR and directed to get injured persons admitted in the Hospital as their condition was serious. After reaching the Hospital he recorded the Parcha Bayan Ex.P/ 37. Thus, it becomes clear that before recording Parcha Bayan Ex.P/ 37 the whole incident was made known to PW15-Puna Ram by the persons accompanying the injured persons and he ought to have recorded the FIR immediately. Only after com ing to the Hospital he recorded the Parcha Bayan at 11.20 a.m. which is not the FIR but rather the statement of the deceased under Section 161 Cr.P.C. which is hit by Section 162 Cr.P.C. It has been held by Apex Court in St at e of An dh r a Pr adesh v s. Pu n at i Ram u lu & or s. r epor t ed in AI R 1 9 9 3 SC, 2 6 4 4 that when the investigating officer deliberately does not record the FIR after receipt of information of a cognizable offence but register the complaint as a FIR after reaching the spot and after due deliberations that complaint cannot be treated as a FIR and it would be a statement made during investigation and will be hit by Section 162 Cr.P.C. Sim ilarly in Golla Jalla Reddy an d or s. v s. St at e of A.P. r epor t ed in ( 1 9 9 6 ) 8 SCC, 5 6 5 it was held by Apex Court that if an oral statement is given to the police disclosing a cognizable offence and the police starts investigation on its basis, written report given immediately thereafter cannot be treated as FIR and such report must be treated as a statement recorded under Section 161 Cr.P.C. and cannot be used for the purpose of corroboration of the evidence of its maker. Learned counsel for the appellants further argued that there is delay of 4 days in sending the FIR to the Magistrate. Perusal of record reveals that parcha bayan Ex.P/ 37 was recorded at 11.20 a.m. on 8.10.89, whereas Check Ex.P/ 38 was sent to the Magistrate on 12.10.89 at 1.30 p.m. Thus, there is delay of 4 days in sending FIR to the Magistrate and no explanation has been given by PW15-Puna Ram regarding delay in sending FIR to the Magistrate. In the case reported in 1 9 8 1 Cr im in al Law Jou r n al, 3 6 4 Sw ar n Sin gh v s. St at e of Pu n j ab the murder was committed at 9.30 p.m. and FIR was lodged at 11.15 p.m., but it was sent to the Magistrate on the next day at 7.00 a.m. though the Magistrate’s residence was only 2-3 furlong from the police station and on account of delay in sending FIR to the Magistrate the accused was acquitted of the charges under Section 302 IPC on account of it being doubtful. The Hon’ble Apex Court has held in St at e of Raj ast h an v s. Tej a Sin gh & ot h er s r epor t ed in 2 0 0 1 Cr im in al Law Jou r n al, 1 1 7 6 that delay of two days in sending FIR to the Magistrate, though those two days were holidays, cannot be a ground of condoning said delay because rule of law is that FIR should reach to the concerned Magistrate without any undue delay and acquittal of accused was held proper. In the present case, when there is no reasonable explanation for delay of four days in sending the FIR to the Magistrate in the facts and circumstances of this case the prosecution story becomes suspicious and accused-appellants are entitled to benefit of doubt. As far as the FSL report is concerned, PW15- Puna Ram has exhibited FSL report Ex.P/ 51. According to this report human blood was found on the Kurta, Payjama and Chaddi of deceased and on the two Talwars. On further examination Blood-Group-B was found on Kurta and Payjama, but blood group could not be determined on Chaddi and two Talwars sent for FSL. In this case one sword was recovered from accused- appellant-Hariya vide