1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT VIJAY SINGH Vs. State of Rajasthan S.B.Criminal Appeal No. 170/1986. DATE OF JUDGMENT :- July 04, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.Kamlendra Sihag for Mr. Biri Singh, for the appellant. Mr.B.K.Sharma, Public Prosecutor, for the State. BY THE COURT The challenge in this appeal is to the judgment dated 21st March, 1986 rendered by Additional Sessions Judge No.4, Jaipur City, Jaipur whereby the accused appellant Vijay Singh has been convicted for the offence under Section 307 of IPC and sentenced to a period of three and half years imprisonment and a fine of Rs. 150/-, in default of payment of fine to undergo further one month simple imprisonment. 2. The prosecution story succinctly runs as under: That on 3.7.1984 in the evening at 7.50 PM, complainant PW/1 Sheetal Prasad Verma, came back to his house situated in Civil Lines, Jaipur after 2 performing his duties. On his coming to his house, his children told him that Vijay Singh had broken the pipeline which was attached to toilet. When he asked as to why did he break the pipe line attached to flush of the toilet, Vijay Singh started abusing him. It is alleged that first he brought the lathi from his house and thereafter, he fired at him by pistol/country made Katta. The complainant somehow protected by hiding himself behind the wall but he fired with a view to kill him. The complainant gave the written report Ex.P/1 to incharge Police Station, Sadar Jaipur whereupon the police registered the FIR and commenced trial. The Investigating Officer prepared the site plan Ex.P/2, recorded the statements of witnesses under Section 161 Cr.P.C., arrested the accused Vijay Singh vide Memo Ex. P/3, drew necessary memos and after usual investigation, filed the charge-sheet against the accused appellant in the offence under Section 307 IPC. 3. The learned trial Court framed a charge in the offence under Section 307 of IPC and read over the same to the accused who pleaded not guilty and claimed trial. The prosecution has examined six witnesses to prove its case. On completion of trial, the accused appellant was found guilty in the offence under Section 307 of IPC and convicted and sentenced as indicated 3 hereinabove. 3. Heard the learned Public Prosecutor as also the learned counsel for the accused appellant, perused the impugned judgment of the lower Court as also the prosecution evidence along with the relevant material available on record. 4. While reiterating the grounds of appeal as enumerated in the appeal memo, the learned counsel for the appellant has contended that the offence under Section 307 of IPC is not proved at all against the accused from the evidence of PW/1, Sheetal Prasad Verma, PW/2 Shri Madan Mohan Sharma, PW/3 Bhavani Singh and PW/4 Dharam Singh. He has further submitted that neither the recovery of fire-arm has been made from the accused nor any mark of gun-shot has been detected on site inspection. Not only that nobody has stated to have been injured by the fire-arm. The enmity between both the complainant and the accused is admitted and on account of there being enmity between these two, the complainant has falsely implicated him in this case. The learned counsel has also submitted that the learned trial Court has convicted the accused- appellant for no evidence and the conclusion of conviction has been arrived at in a very slipshod manner, hence 4 the accused deserves to be acquitted and the impugned judgment deserves to be set aside. 5. Per contra, the learned Public Prosecutor, appearing for the State has submitted that the judgment of the lower court is just and proper. All the witnesses have corroborated the case of the prosecution and there is no reason not to believe their testimony. The report has been lodged with the police soon after the occurrence, as such there is no possibility of setting out a coloured version before the police and in view of these circumstances, the criminal appeal of the accused -appellant deserves to be dismissed. 6. The fact-situation emerging from the prosecution evidence and the material available on record may be summarized as under: (i) PW/1 Shri Sheetal Prasad Verma has stated in his cross-examination that the police came on the spot only after 5-6 minutes of the occurrence. (ii) The occurrence is alleged to have taken place at 7.30 in the evening but the F.I.R., has been registered at 8.55 PM after a delay of 1 hour 25 minutes of the occurrence. (iii) As per the statement of PW/1, Sheetal Prasad Verma, the police is found to have reached at 7.30-7.40 PM but it is not found that any report was 5 given by the complainant to the police on the spot. The delay in lodging the report by Sheetal Prasad Verma has not been properly and satisfactorily explained by the prosecution. PW/1 Sheetal Prasad Verma has also stated before the Court that the witnesses Bhavani singh, Dharam Singh, Gyan Singh and Sayar Singh were present on the spot at the time of occurrence but the names of all these witnesses do not find place in the written-report Ex.P/1. (iv) PW/2 Madan Mohan Sharma, the then S.H.O., Police Station Sadar has admitted in the cross-examination that he reached on the spot prior to the registration of the case. He has stated that he got the information of firing in Isarda House on phone. On this information, he reached on the spot along with his staff but no report is found to have been given by the complainant to PW/2, Madan Mohan Sharma on the spot. (v) Site Plan Ex.P/2 does not exhibit any place where there can be a mark of firing. (vi) No fire-arm viz. Pistol or country- made Katta is found to have been recovered. 7. The learned counsel for the appellant has vociferously canvassed that the story of the prosecution is totally concocted and the accused has been falsely roped in to wreak the vengeance. The independent witnesses PW/3, Bhavani Singh and PW/4 Dharam Singh are the 6 witnesses who have been residing in Isarda House for the last 15 years. PW/1, Sheetal Prasad Verma also has been living in the same precincts. Hence, the evidence of both these witnesses who are interested and partisan the same cannot be accepted and relied upon and deserves to be outrightly abandoned. 8. A bare perusal of the report Ex.P/1 coupled with the statements of PW/1 Sheetal Prasad Verma reveals that report Ex.P/1 has been lodged with the police after a delay of one hour and 25 minutes of the occurrence and this delay of one hour and 25 minutes has been found to be proved fatal in the facts and circumstances of the case. The prosecution has not furnished any reason as to why the report was not given by the complainant to PW/2, Madan Mohan Sharma, S.H.O., Police Station Sadar, who reached on the spot only after 5-6 minutes of the incident. Instead of giving the report on the spot, why did Sheetal Prasad prefer to go to Police Station and give the report there only. The lodging of such a delayed report makes me to infer that this report Ex.P/1 was registered after proper consultation and a considerable thought which is found to be fatal to the prosecution. 9. In Thulia Kali Vs. State of Tamil Nadu, AIR 1973 SC 501, the Hon'ble Apex Court has 7 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.” 10. 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. But in the instant case, the delay in filing the FIR after one hour and 25 minutes of the incident is found to be fatal to the prosecution as the delay has not been satisfactorily explained by the prosecution. 8 11. Further, the names of independent witnesses do not figure in the written report Ex.P/1 which evinces that they are the manipulated witnesses who were not present on the spot and their evidence can very safely be jettisoned for the reason that they have been residing in the same precincts where the complainant resides. 12. None of the witnesses has stated as to in which direction the shot was fired. If the complainant had saved himself by hiding behind the wall then it can be presumed that the accused must have hit the wall but no mark of firing has been detected by police on the wall. It is nowhere mentioned that the accused pointed out the pistol or country-made Katta at him. With regard to firing, the statement of witnesses are omnibus. No witness has specifically stated that the pistol was aimed at the complainant with a view to kill him. Apart this, no pistol has been recovered from the accused or at his instance. The police is said to have reached only after 5-6 minutes of the occurrence on the spot and if any fire was shot, the police could have recovered at least an empty cartridge from there but no such empty cartridge has also been recovered by the police. 13. PW/2 Shri Madan Mohan Sharma has 9 submitted in his cross-examination that every information received in the police station is entered into Roznamacha but with regard to this information of the instant case, he has stated that he did not remember as to whether this telephonic information about firing was entered into Roznamacha or not. It is highly surprising that no Roznamacha has been produced in the Court to prove the First Information Report which the police had received on telephone. 14. Keeping in view all the aforesaid circumstances, it can safely be inferred that there is not even a shred of evidence against the accused appellant. There is virtually no evidence which can fasten the guilt upon the accused. The statements of PW/1 Sheetal Prasad Verma, PW/3 Bhavani Singh and PW/4 Dharam Singh do not inspire any confidence and their testimony is not found to be credible. The statement of the complainant are omnibus and they even do not constitute any offence. 15. The lower Court has written the judgment in a very slipshod manner and has based the conviction on surmises and conjectures. There being not even an iota of evidence on record, I am left with no option but to allow the appeal and acquit the accused. The prosecution story is without legs to stand and in my firm opinion, 10 the impugned judgment in the light of the above discussion cannot be sustained. 16. For these reasons, the criminal appeal filed by the accused appellant Vijay Singh is allowed. The impugned judgment of conviction and order of sentence dated 31st March, 1986 is set aside and the appellant is acquitted in the offence under Section 307 of IPC. The appellant is on bail and his bail bonds stands cancelled. (MAHESH BHAGWATI),J /gandhi