1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR 1. D.B. CRIMINAL APPEAL NO. 297/1985 (SUKHDEO SINGH VS STATE) 2. D.B. CRIMINAL APPEAL NO. 295/1985 (BALWANT SINGH VS. STATE) J U D G M E N T APPEALS UNDER SECTION 374(2) Cr.P.C. AGAINST THE JUDGMENT DATED 29.08.1985 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE NO.1, HANUMANGARH IN SESSIONS CASE NO. 18/1983 DATE OF JUDGMENT : 19th January, 2010 HON'BLE MR. N.P. GUPTA, J. HON'BLE MR. C.M. TOTLA, J. Mr. M.K. Garg ] for the appellant. Mr. Niranjan Gaur ] Mr. A.R. Nikub for the State. BY THE COURT : (PER HON'BLE GUPTA, J.) These are two appeals one by Sukdeo Singh and one by Balwant Singh arising out of common judgment of learned Additional Sessions Judge No.1, Hanumangarh dated 29.08.85, seeking to challenge their conviction for the offences under Section 302/34 IPC and sentence of life imprisonment alongwith fine of Rs. 1000/- in default to undergo further three months rigorous imprisonment . In view of above, both these appeals are being decided by this common judgment. 2 The facts of this case, as projected by the prosecution are, that on 11.09.82 at 5 AM, Banta Singh (PW/2) lodged an oral report at Police Station, Hanumangarh Town (Ex.P/1), to the effect, that accused persons Sukhdeo Singh and his brother Kela habitually hurl abuses to him, while he stops them, therefore, they are annoyed. With this it is alleged, that on 10.09.82 at 1:30 in the noon, younger brother of the informant being Teja Singh came to the informant for some domestic work. That evening itself, wife of Teja Singh, Tej Kaur and Manga Singh were also sitting at his house. With this, it is alleged that at 9-10, accused Sukhdev Singh called the informant, whereupon he came out. Teja Singh also came with him. At that time, they found accused Sukhdev Singh and his brother-in-law Balwant @ Ganda Singh and third Kela (acquitted) were standing there duly armed with 'barchis'. Seeing the informant, the accused persons started hurling abuses and on being asked to stop, Sukhdev Singh inflicted a barchi blow on the right side of informant, then Karnail inflicted another barchi blow on the chest and when Teja singh wanted to save, Sukhdeo Singh and Khanda Singh inflicted barchi injuries on the head of Teja Singh, as a result of which Teja Singh fell down. Banta Singh raised a cry, which attracted his wife, Manga Singh and Guljara Singh, seeing them the accused ran away. Teja Singh was bleeding profusely. Informant's wife brought a chunni from the house and tied on the head. However, after some time, Teja Singh died. It was also mentioned that it being night, the informant was 3 afraid and did not get any conveyance, therefore, he did not come to lodge the report earlier. On this report, a case under Section 302 and 304/34 IPC was registered and investigation has commenced. Postmortem examination was got conducted. Injuries on Banta Singh were got examined, recovery of weapons was made and ultimately, challan was filed in the court of Judicial Magistrate, First Class, Hanumangarh against three accused persons, wherefrom, the case was committed. Learned trial court framed charges against the two appellants for the offence under Sections 302, 302/34 and 307/34 IPC while Khanda Singh was charged with Section 307/34 and 302/34 IPC. Accused denied the charges. During trial, prosecution examined seven witnesses. PW/1, PW/2, PW/3 and PW/4 have been produced to support the prosecution case basically being Manga Singh, Banta Singh , Guljara Singh and Tej Pal, While PW/6 is the Investigating officer and PW/7 is Medical officer. Who examined the injured, and conducted the postmortem examination. In the statement under Section 313 Cr.P.C., accused persons adopted a stand of denial. Accused Balwant Singh has taken a stand that his name is Balwant Singh and his name is not called Khanda Singh while other accused simply gave out that on account of groupism, witnesses are telling lie. 4 In defence, one witness Radhey Shyam was examined, who happens to be Additional Superintendent of Police, ACD, Kota, to prove Ex.D/1, D/4, D/6 etc. that statements contained therein were correctly recorded by him. Learned trial court after completing trial, convicted the two appellants as above. However, the prosecution case was not believed against Karnail Singh, on the ground, that the injuries attributed by the injured PW/2 to Karnail Singh are not supported by medical evidence, inasmuch as according to PW/2 injuries were inflicted on him by 'barchis', while there were only two injuries on his person, and both were blunt weapon injuries. Since PW/2 had clearly deposed that Karnail Singh did not inflict any injury to Teja Singh, he was acquitted. We have heard learned counsels for either side and have gone through the record. A close reading of statements of PW/1, PW/2, PW/3 and PW/4 does show that it is PW/2 only who claims to be the solitary eye witness having himself received injuries and Teja Singh, deceased also having received injuries in the process of saving this witness PW/2. PW/1 claims to have been attracted on hearing the cries, and on coming out to have seen the three accused persons standing there, armed with gandasi. Thereupon, he also in turn raised a cry, 5 which attracted Guljara Singh, and accused went away. Then he deposes that in the mean time, PW/4 Tej Kaur also came, who tied a chunni around the head of the deceased. Then, he states that in the morning, police came. He and Banta Singh went to Police Station, Hanumangarh town at 5 in the morning and lodged the report, and police came on the spot at around quarter past 10. Guljara Singh deposes to be in the village Behlol Nagar, at the house of Ishwar Singh. At that time, he heard the cries and went there, where he saw the three accused persons hurling abuses, and Teja Snigh lying on the ground bleeding profusely. At that time, Tej Kaur was also there, who went inside and brought chunni. Banta Singh was standing at the entrance of Banta Singh's own house, and was having injury on right side of the head and right side of chest, which injuries were bleeding and on his challenging the accused persons went away. This is the evidence, which these witnesses want this Court to believe. A look at the judgment of learned trial court would show, that the learned trial court has decided the question of relying upon the evidence of Banta Singh PW/2 only on the parameter, as to whether his testimony is corroborated by the medical evidence or not, and in that process, to the extent his testimony was not corroborated by the medical evidence, his evidence is disbelieved, and for the injuries which were found to be corroborated by medical evidence, Banta Singh has been believed. This appears to us to be whole long and short of the judgment of learned trial court. 6 As against this, a close scrutiny, marshalling and scanning of the evidence of three witnesses PW/1, PW/2 and PW/3 in conjunction with the documents on record projects an altogether otherwise picture. A look at the FIR Ex.P/1 shows that it purports to have been lodged at 5 AM on 11.09.82, while it has been received by the Magistrate at his residence on 12.09.82, at 8:30 AM. This delay, in the peculiar circumstances of the present case is of great significance. In this background, a look at the statement of PW/1 would show, that he deposes that in the morning, the police came and he and Banta Singh went to Police station, Hanumangarh town at 5 AM and lodged the report, and then he has stated that police came at quarter past 9 in the morning. As against this, Banta Singh does not say to have gone for lodging the report alongwith PW/1, rather all that he states is that at 5 AM, he lodged the report in the Police station about the incident. Then, PW/1 was confronted with his earlier statement Ex.D/1 wherein, in portion O to P, has stated that he alongwith Nayab Singh and Nand Singh went on motor-cycle to Hanumangarh town to lodge the report. On confronting this portion, obvious answer given was that he did not state so, rather he had stated about himself and Banta Singh having gone there. Then, he was also confronted with portion Q to R about their having called the police and Banta Singh being un-conscious, therefore, he having gone subsequently. To this also, he has stated that he wrongly recorded. Then a look at the 7 statement of DW/1 shows that he has clearly deposed these portions of Ex.D/1 to have been correctly recorded as deposed by witnesses, and this part of the testimony could not be satisfactorily assailed in cross-examination either. Then, a look at the statement of PW/6, the investigating officer shows that he had denied the suggestion that Nayab Singh S/o Prithvi Singh and Nand Singh had given information to him in the police station, that Teja Singh has been murdered by some persons whose body is lying in a lane in Behloliya. Then, regarding delaying in sending the FIR to Magistrate, he has chosen to state that he had given oral instructions to the head moharrir then, he did not ask as to whether it was sent or not. He has ofcourse, denied the suggestion about having entered the FIR only after completing the entire investigation and after handing over the dead body to Banta Singh, to have obtained the signature of Banta Singh on FIR. He has also denied the suggestion about Banta Singh being unconscious, when he reached on the spot. In this sequence, again a look at Ex.P-1 would show, that it does not even purport to give any indication either, about P.W.1 Manga Singh being there along with P.W.2 Banta Singh informant. Then, a look at the statement of P.W. 2 Banta Singh would show, that he has stated that Nand Singh is his distant relation. He has also stated that the place where he was lodging the report P.W. 1 Manga Singh was staying at a distance of 10ft., and when the 8 S.H.O. asked P.W.1 Manga Singh as to how he has come, thereupon P.W. 1 Manga Singh stated to have come along with P.W. 2. Beyond this nothing was talked to P.W.1. This shows that on an ill advised cross examination P.W. 2 has introduced P.W.1 to be there at the police station. This P.W.2 was confronted with his previous statement recorded by Addl. S.P. being Ex. D-4 portion A to B to which he stated to have not so deposed. Likewise he was also confronted with the portion C to D but then that portion was also denied to have been stated by him. Then, he was also confronted with the portion E to F, which he denied to have stated, so is the position about the portion G to H, and I to J. These portions which he has chosen to deny have been proved by D.W.1 to have been correctly recorded by him, and that part of the evidence of D.W.1 has not been successfully assailed by the prosecution in the cross-examination. In that background a look at these portions of Ex.D/4 would speak volumes about the correctness of what P.W.2 purports to depose, inasmuch as, in portion A to B of Ex.D-4 he has stated to have become unconscious. Then in portion C to D he has stated to have sent Nand Singh and Manga Singh to lodge report in the Police Station and to call the police and himself to have gone later on. Then in portion E to F he had stated to be indoor patient in the hospital for 11 days. Then in portion G to H he has stated that when he was in Dabli there was a Tu-tu Me-me with Karnail Singh. In I to J he has stated the murder to have been got done by Karnail Singh. 9 This shows that there is a serious doubt as to who lodged the report, and when the report was lodged, obviously as to what were the contents of that report. In this very sequence, the proper examination of the statements of P.W.1 and 2 further shows, that they even according to themselves purport to be chance witness, inasmuch as, according P.W.1 he claims to be resident of village Dabli and to be going to Choilwali and on the way he boarded a truck which went wrong and therefore, he thought it proper to stay at the house of P.W.2 Banta Singh. The truck is said to have gone wrong near Kechiya Kalibanga. Kalibanga is at a distance of 3½ kms. from where the truck went wrong. Then he has denied the suggestion about Behlolnagar being at a distance of 7 kms from the place where the truck went wrong. Then he was cross-examined on various aspects. He has then admitted that Behlolnagar is at a distance of 15 kms. from Choilawali. He has admitted to have not given out to the SHO about his having gone to Behlolnagar, on account of his truck having gone wrong. Likewise, a look at the statement of P.W. 3 Gulzar Singh also shows, that he is a resident of Gidrawali, and to have come to Behlolnagar on that very day at about 1.30 in the noon. According to him he was at the house of Ishwar Singh, and on hearing the cry in lane he went on the spot. He was confronted with his earlier statement Ex.D-5, wherein it was deposed that he was there in Behlolnagar for 10 the last 3-4 days. He has denied to have given that part of the statement. Then, he was also cross examined on some details of the incident, he claims to have seen. However, he claims to have remained on spot for about 5-7 minutes only, and claims to have returned to the house of Ishwar Singh as Teja Singh had died. Significantly in Ex.D-6 yet another earlier statement in portion A to B he has deposed about his staying at the house of Banta Singh, and in portion C to D deposed to have come by bus at 4 p.m. but then he has denied to have given those statements. Obviously this shows, that during investigation he tried to effectively ensure that his presence at the house of deceased itself is believed, but then while in court he has changed his stand about his staying at the house of Ishwar Singh. Be that as it may. The fact remains, that he too claims himself to be a chance witness. In these circumstances, their evidence is required to be examined with greater amount of care and caution. A look at the record further shows, that the two Gandasis which are said to have been recovered from the two appellants having not been found to be stained with blood of human origin. Of course, it is reported by serologist that origin could not be ascertained on account of blood having disintegrated, but then the fact remains, that it has not been found to be of human origin. The sum total of the above narration of 11 evidence, that comes to is, that P.W. 2 Banta Singh remains the solitary witness, to testify the incident, and involvement of the accused persons. Law in regard to appreciation of evidence of solitary witness is no more res-integra, and is consistently laid down by the Hon'ble Supreme Court, that where the prosecution rests on testimony of solitary eye witness, the witness has to be of sterling worth. In other words it is not permissible to eliminate some part of the evidence as unreliable, and rely other part of that evidence. Thus, on these parameters, P.W.2 has already been disbelieved by the learned trial court, with respect to nothing else than the injuries claimed to have been received by himself, and consequently Karnail Singh has been acquitted, which acquittal has not been challenged by the State, and has become final. In that view of the matter, Banta Singh P.W. 2 cannot be said to be even a wholly reliable witness, much less witness of sterling worth. That being the position, to remind ourselves of yet another principle propounded by the Hon'ble Supreme Court, that it is not open to the Court, while disbelieving the prosecution story, as propounded, to reconstruct a story on its own, as to how the incident must have occurred. Thus, the present is a case where the solitary witness P.W.2, not being witness of sterling worth, and the totality of circumstances also shows, that the possibility is not ruled out about the F.I.R. 12 being subsequent manipulation, after completion of the entire investigation, having been recorded in the manner to fit in, in line with the investigation, and then the three witnesses having been brought up to support that story. In these circumstances, though with a heavy heart, but we are left with no alternative except to disbelieve the entire prosecution case. Resultantly, the appeals are allowed. The impugned judgment is set aside, and both the appellants are acquitted of all the charges. They are on bail, they need not surrender, and their bail bonds, stand cancelled. (C.M.TOTLA), J. (N.P.GUPTA), J.