1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT Lala @ Harlal Singh & Anr. Vs. State of Raj. S.B.CR. APPEAL NO. 530/1984. DATE OF JUDGMENT :::: 29th August,2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sandeep Sharma ] Mr. Ramesh Chand Raigar for Mr. Mahendra Kuldeep for the appellants. Mr.B.K.Sharma, Public Prosecutor, for the State. BY THE COURT Challenge in this appeal is to the judgment dated 19th November, 1984 whereby the Sessions Judge, Sikar convicted the accused appellants Lala @ Harlal and Deepa Ram in the offences under Section 452, 307/34, 325/34 and 323/34 of IPC and sentenced as under:- U/S 307/34 IPC: Rigorous Imprisonment for three years and a fine of Rs.2,000/-; in default of payment of fine to further suffer Rigorous Imprisonment for six months. U/S 325/34 IPC: Rigorous Imprisonment for two years and a fine of Rs.1,000/-; in default of payment of fine to further suffer Rigorous Imprisonment for three months. U/S 323/34 IPC: Rigorous Imprisonment for six months and a fine of Rs.500/-; 2 in default of payment of fine to further suffer Rigorous Imprisonment for three months. U/S 452 IPC: Rigorous Imprisonment for two years and a fine of Rs.1,000/-; in default of payment of fine to further suffer Rigorous Imprisonment for three months. All the sentences were ordered to run concurrently. 2. The nub of the appellants story is that on 13th March, 1984 PW/1 Deburam was sleeping in his house. It is alleged that in the intervening night of 13th and 14th of March 1984 at about 1.00-1.30 Am, the accused persons Deepa Ram and Lala Ram armed with clubs entered in the house and gave a serious beating with lathis to him as a result of which he sustained numerous injuries. Having heard the shrieks of Deburam, his wife PW/2 Radha Devi and his brother Sadaram reached there who saw both the accused persons fleeing from there. PW/3 Sadaram immediately removed his brother Deburam to Hospital at Sikar. On account of his serious condition, the complainant remained busy in looking after him. Finally on 15th March, 1984 Sadaram submitted a written report Ex.P/2 to the S.H.O. Raghunathgarh whereupon FIR Ex.P/3 was lodged and investigation commenced. 3. The Investigating Officer recorded the 3 statements of the witnesses acquainted with the facts and circumstances of the case, arrested the accused Lala @ Harlal vide memo Ex.P/8, seized a lathi vide memo Ex.P/10 at the instance of accused Lala, prepared the site plan of recovery place and after usual investigation sent both the appellants for trial to the competent Court. 4. Both the appellants were indicated for the offences under Section 452, 307/34, 325/34 and 323/34 of IPC who pleaded not guilty and claimed trial. The prosecution has examined only seven witnesses to prove its case. In the explanation under Section 313 Cr.P.C both the appellants claimed innocence and the accused Lala Ram @ Harlal pleaded that at the time of alleged occurrence, he was working in his field. When he came to village next morning to take tea and bidi etc, he found about 5-7 persons assembled at the house of Umrav who was telling them about Deburam having come in a drunken state to her house in the night and outraged her modesty, where upon she gave a beating to him. While fleeing from there, he fell down and sustained some injuries. Since he wrote her report at her instance, Deburam got annoyed and implicated him in this case. Two persons DW/1 Umrav and DW/2 Likhma Ram have been produced in defence. After completion of trial the appellants were convicted and sentenced as 4 indicated hereinabove. 5. Heard the learned counsel for the appellants, learned Public Prosecutor appearing for the State and with their assistance scanned the material available on record. 6. During the course of arguments the learned counsel for the appellants has made the following submissions:- (i) That the occurrence took place in the intervening night of 13th and 14th March, 1984 at about 1.00-1.30 Am whereas the FIR Ex.P/3 has been lodged at 8.10.PM of 15 March, 1984 i.e. after a delay of about 43 hours. The complainant has not furnished any satisfactory explanation of this delay which proves fatal to the prosecution. (ii) That, in fact there is no eye witnesses of this case and PW/2 Radha and PW/3 Sadaram have been made up as eye witnesses of this case whose statements are laden with galore contradictions discrepancies and inconsistencies as such their evidence is not worth relying. (iii) That the Investigating Officer examined the witnesses under Section 161 of Cr.P.C. after ten days of the occurrence. More so he inspected even the site after ten days which evinces that Investigating Officer in connivance with PW/3 Sadaram has concocted and fabricated a false story against the appellants. (iv) The complainant is the adopted son of Goru Ram who resides at a distance from the house of injured Debu Ram and his presence cannot be expected at mid night so early at the time of occurrence, as such he cannot be believed to be an eye witness of this case. (v) That the prosecution has failed to prove as to how the appellants entered in 5 the house when it was bolted from inside. (vi) That there is no ground to disbelieve the testimony of defence witnesses and the explanation of the appaellant Lala @ Harlal furnished under Section 313 of Cr.P.C is probable and worth-relying. (vii) That the prosecution has not proved the motive of appellants to cause grievious injuries on the chest of Debu Ram. (viii) The the learned trial Court has not properly appreciated the evidence of prosecution witnesses and rendered the impugned judgment against the facts and material on record, as such it deserves to be set aside. 7. Per contra, the learned Public Prosecutor has simply urged that the judgment of the lower Court is cogent and well merited. It suffers from no infirmity. The learned trial Court has properly appreciated the evidence of PW/1 Debu Ram, PW/2 Radha, PW/3 Sadaram, PW/4 Dr. VK Soni, PW/5 Dr. MM Mishra and PW/7 Ganpat Lal Investigating Officer. The evidence of PW/2 Radha and PW/3 Sadaram cannot be abandoned merely for the reason that they are closely related to the injured. The impugned Judgment is perfectly just and legal and calls for no interference. 8. Vide injury report Ex.P/6 of Deburam, PW/5 Dr. MM Mishra found the following injuries on his person: 1. Lacerated wound 1-1/4”x1/10”x1/10” just below left eye. Advised X-ray. 2. Sub-conjuctival haemorrhage 1/4x1/4” 6 in left eye. Vision not effected. 3. Swelling 2”x2” on left mandibular area movement restricted-Advised X-ray. 4. Bruise with swelling 1/2”z1/2” on middle upper like inner side. 5. Two bruises 1-1/2”x1/4” on middle of right chest back. Advised X-ray. 6.Two bruises 1-1/2”x1/2” on middle right chest back. Advised X-ray. 7.Two bruises 1”x1/2” over 1/3rd right chest back. Advised X-ray. 8.Three bruises 1”x1/2” each on middle of left chest back. Advised X-ray. 9. Four bruises 1-1/2”x1/4” each on lower 1/3rd left chest back. Advised X- ray. 10.Three bruises 1”x1/2” each on middle left chest laterally on infra- axillary area. Advised X-ray. 11.Swelling 1/2”x1/2” on left elbow back. PW/4 Dr. VK Soni took the X-ray of face and chest of injured Debu Ram and found 4th, 6th and 7th ribs of left side of chest fractured. Dr. Mishra found the injuries No.8.9 and 10 of Debu Ram dangerous to his life. 9. The fact situation emerging from the material is thus: (i) The occurrence of this case took place in the intervening night of 13th and 14th March, 1984 at about 1.00-1.30 Am. (ii) PW/3 Sadaram submitted the report Ex.P/2 to the S.H.O. Police Station Raghunathgarh at 8.10.PM on 15th March, 1984 that is after 43 hours of the occurrence. 7 (iii) The Investigating Officer visited the site of incident after ten days of the occurrence. Similarly he examined also the witnesses after ten days. (iv) No independent person has been interrogated by the Investigating Officer and thus the prosecution case is found resting upon the evidence of PW/1 Debu Ram, PW/2 Radha and PW/3 Sadaram who are closely related to each other. (v)The appellant Lala @ Harlal has furnished the explanation under Section 313 of Cr.P.C. but the same has not been relied upon by the learned trial Court. (vi) Defence evidence has not been believed to be probable. 10. Now adverting to the injury report Ex.P/6, it is noticed that the injuries found on the person of injured Debu Ram were examined by PW/5 Dr. MM Mishra on 14th March, 1984 at 9.30 Am. This injury report reveals that at the time of examination of the injured he was admitted in male Surgical ward in Shri Kalyan Hospital Sikar. This report further reveals that the incident of this case had already been reported to Police Station Raghunathgarh. PW/5 Dr. MM Mishra in his deposition has stated that he examined Debu Ram on the request of Police Station Raghunathgarh. PW/4 Dr. VK Soni also has stated that he conducted the X-ray examination of the injuries of Debu Ram on the request of Medical Jurist, Sikar and found 4th, 6th and 7th ribs of left side of chest fractured. He did not notice any bony injury on his face 8 and mandible. The injury report Ex.P/6 prepared by Dr. MM Mishra leads me to infer that prior to the examination of the injuries of Debu Ram, a case had already been registered about this incident at Police Station Raghunathgarh. But contrary to this PW/3 Sadaram has deposed that on account of being busy in looking after Debu Ram he could not report the incident at Police Station Raghunathgarh on the same day. He submitted a written report Ex.P/2 on 15th March, 1984 where upon FIR Ex.P/3 was registered by police at 8.10 PM i.e. after 43 hours of the occurrence. 11. Now, the crucial question springing for consideration is as to when was the report actually made at P.S. Raghunathgarh about this incident? The report of 14th March, 1984 is not available on record. Thus it leads me to draw two inferences;-(i) either the report which was lodged prior to the examination of the injuries of Debu Ram at 9.30 AM on 14th March, 1984 has been suppressed by the prosecution or (ii) no report was made on 14th March, 1984 in the police and the First Information Report of this case infact for the first time was lodged at 8.10.PM on 15th March, 1984 which is Ex.P/3 and that set the police in motion. 9 12. If the evidence of PW/3 Sadaram and PW/7 Ganpat Lal Investigating Officer is taken to be true then the next question which emerges for consideration is that on whose instance the injuries of Debu Ram were examined by PW/5 Dr. MM Mishra, since Dr. Mishra has deposed before the Court that he examined the injured Debu Ram on the request of Police Station Raghunathgarh. 13. Injury report Ex.P/6 does not contain any opinion of Dr. Mishra with regard to the injuries found on the person of Debu Ram who later on deposed before the court that injuries were dangerous to his life. During investigation it was on 19th March, 1984, when asked by S.H.O. Police Station Raghunathgarh vide letter Ex.P/7, Dr. MM Mishra gave his opinion to this effect that injury No.8, 9 and 10, if not treated in time, could cause death, but Dr. Mishra eschewed the words “if not treated in time” and simply deposed that injuries No.8, 9 and 10 might be dangerous to life. Further, one more material circumstance against the prosecution has emerged through the statement of PW/4 Dr. VK Soni, who in his searching cross examination has explained that Ex.P/5, the X-ray plat of the injuries of Debu Ram was showing the position of callus in fractured ribs. The doctor has further deposed that the duration of the fracture of ribs was within three weeks. When the beating to the 10 injured Debu Ram was given by the accused appellants at 1.00-1.30 AM on 14th March, 1984 how could there be callus formation on fractured ribs only after 8 to 10 hours of the occurrence? This circumstance loudly casts doubt upon the credibility of prosecution case. 14. In Modi's Medical Jurisprudence and Toxicology, 1961 edition at para III of page 236 the reparative process of a fractured bone is explained thus:- “In the fracture of a bone the reparative process will enable one to fix its approximate time. The signs of inflammation and exudation of blood in the soft parts and round about the fractured ends are noticed from the first to the third day. Inflammation slowly subsides and granulation tissue, known as the soft provisional callus, is formed from the third to the fourteenth day. This callus binds together the fractured ends of the bone. The formation of the amount of callus depends on the mobility or immobility of the fractured ends. It is less if the ends are immobile and impacted. It begins to ossify from the fourteenth day to the fifth week, and six to eight weeks is the average period taken by the callus to be absorbed completely, so that the fractured ends may be entirely united with the formation of bone.” In the light of Modi's above authentic observation, the injury report Ex.P/6 is found to be shrouded in mystery and suspicion. The statements of PW-1 Debu Ram, PW-2 Smt. Radha, PW-3 Sada Ram and PW-5 Dr. M.M. Mishra with regard to the fracture of ribs sustained during 11 the so called incident are found to be totally unworthy of credence, untrustworthy and unbelievable. As per the statement of PW-4 Dr. V.K. Soni given in his cross-examination he did not mention the callus formation in these fractures in his report Ex.P/4 but in cross- examination he has stated “but the X-ray plate Ex.P/5 shows the position of callus. The duration of the fracture is within three weeks.” Not only this PW-5 Dr. M.M. Mishra in his cross- examination has stated regarding these injuries as “ these injuries can be received while the person is in standing position”. Whereas PW-1 Debu Ram in his deposition has stated that Lala Ram and Deepa Ram gave lathi blows on him when he was sleeping. Thus the injuries as narrated by PW-1 Debu Ram and PW-3 Sada Ram also do not get corroborated by the medical evidence. 15. In the above back drop, an inordinate delay of 43 hours in lodging the FIR Ex.P/3 has assumed a great significance. The prosecution has not furnished any reasonable or satisfactory explanation of this inordinate delay and the possibility of embellishment, concoction and fabrication of the prosecution case cannot be altogether ruled out. 16. In Thulia Kali Vs. State of Tamil Nadu, AIR 1973 SC 501, the Hon'ble Apex Court has 12 held: “First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be over-estimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.” 17. In the above case, the occurrence was not reported for more than 20 hours. The delay was found to be fatal to the prosecution and to base conviction upon such evidence was held to be unsafe. In the instant appeal too, the delay in lodging FIR Ex.P/3 after 43 hours of the occurrence is undisputedly found to be fatal to the prosecution as the inordinate delay of 43 hours has not been satisfactorily explained by the prosecution. 18. In the ultimate analysis the prosecution 13 has miserably failed to establish the case and there appears nothing on record which fasten the guilt upon the accused appellants. In view of the above discussion, the evidence of PW/1 Debu Ram, PW/2 Radha, PW/3 Sadaram, PW/5 Dr. MM Mishra and PW/7 Ganpat Lal Investigating Officer is not only found to be untrust-worty and unworthy of credince but it is found to be totally false, fabricated and concocted. Albeit, the evidence of the related or partisan witnesses should not be abandoned if it is trust-worthy but if their evidence seems to be tainted and coloured then a corroboration of independent witnesses is required to convict the accused persons. In the facts and circumstances of the case, the evidence of both PW-2 Radha and PW-3 Sada Ram is found to be false and far from truth. Similarly, medical evidence also does not inspire any confidence and it is not safe to convict the accused appellants on the basis of false and fabricated evidence of the prosecution witnesses. The learned trial Court has albeit scribbled the impugned judgment in 30 pages but he has miserably failed to have properly appreciated the evidence of prosecution witnesses in right perspective. He has arrived at the finding of conviction on the basis of surmises and conjectures and while appreciating the whole prosecution case ignored all these aspects which have been indicated hereinabove. 14 19. In view of the above premises, the prosecution case falls like a house standing on sand. The impugned judgment of the lower court is found to be perverse and bad in the eye of law. It suffers from galore infirmities. The finding of conviction arrived at by the learned trial Court cannot be sustained and it deserves to be set aside. 20. For these reasons, the criminal appeal filed by the appellants Lala @ Harlal Singh and Deepa Ram is allowed. The conviction of the appellants in the offences under Sections 307/34, 325/34, 323/34 & 452 of IPC and the sentences awarded to them are set aside. The appellants are on bail, their bail bonds stand discharged. (MAHESH BHAGWATI),J PCG