IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T BHOOP SINGH & ORS. V/S The State of Rajasthan CRIMINAL APPEAL No. 363 of 1983 Date of Judgment : 12th Feb. 2009 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARY,J. Mr. NIRANJAN GAUR, for the appellant. Mr. JPS CHOUDHARY, P.P. BY THE COURT:(PER HON'BLE GUPTA, J. This appeal was filed by five accused persons Bhoop Singh, Mahendra, Kashi Ram, Hari Singh and Chhotu, against the judgment of learned Addl. Sessions Judge, Nohar dt. 30.9.1983, convicting all the five accused persons for the offence under Section 148 and 302 read with Section 149 IPC, and sentencing each of them to one year's rigorous imprisonment with a fine of Rs. 200/- for offence under Section 148, and with imprisonment for life and a fine of Rs. 500/- for offence under Section 302 read with Section 149, and further directing that in default of payment of fine each accused shall undergo five months' further rigorous imprisonment. The appeal was filed on 11.10.1983, and was admitted on 13.10.1983. Then, on 11.11.1983 the application for suspension of sentence of the accused Mahendra, Kashi Ram, Hari Singh and Chhotu was allowed, and they were released on bail. Then, on 16.2.1984 sentence awarded to fifth accused Bhoop Singh was also suspended, and he was released on bail. Thus, all the five accused are on bail. During trial it was reported on 10.9.1999, that the accused Mahendra has expired, and a death certificate was also obtained, and enclosed. Thus, out of the five appellants the appeal of Mahendra abates. Consequently, the present appeal is required to be considered to be an appeal on behalf of remaining four accused only. Facts of the case are, that one Fularam Jat s/o Chiriya Gandhi lodged a report at P.S. Bherani at 7.45 P.M. (date we are not mentioning as that is one of disputed points) to the effect, that his brother Kalu Ram bears enmity with Hari Singh, Kashi Ram r/o Chiriya Gandhi. There is litigation between the relationship (आपस रश द  म मकदमब ज चल  ह), and on that count yesterday at 2 P.M. on the Bus Stand Gandhi Bari on the shop of Jagan, Kalu Ram was sitting, at that time Chhotu intimated, thereupon Hari Singh, 2 Kashi Ram, Mahendra, Chhotu, Bhoop Singh sons of Moman Ram r/o Chiriya Gandhi came duly armed with axe, and lathi, and in front of shop of Jagan they started beating Kalu, but Kalu took shelter in the shop by rushing into it, but all these persons had broken his head with lathis and axe, and have killed him. At that time his elder son Dilip and his nephew Kashi Ram were there at the bus stand, who had seen the incident. There were many other persons seeing the incident. On receiving this information he went to the shop of Jagan, and saw that Kalu Ram was having injuries on his head, and face, and was lying dead in the shop of Jagan. On this information a case under Section 302, 147, 148 and 149 IPC was registered, and investigation commenced. At this place we may observe, that in Ex.P- 1 date of incident is said to be 14.6.1982 at 2 P.M. The F.I.R. in the prescribed column shows to have been lodged on 14.6.82 at 7.45 P.M., but even according to the contents of this report, as noticed above, the incident took place on the earlier day. Obviously it should be 13, while it is contended before us, that the F.I.R. was, as a matter of fact, lodged on 15th, it reached the Magistrate at 8.30 P.M. on 15th, and even other circumstances were pointed out, which we will discuss later. On this information, after registering the case necessary investigation were undertaken, post mortem was got conducted on 15th, report whereof is 3 Ex.P-9, and after completing investigation, challan was filed against all the five accused persons, where- from the case was committed. The learned trial court framed the charges for the aforesaid offences. During trial some 12 witnesses were examined by the prosecution, which include the star witnesses being P.W.1 Fula Ram, P.W.2 Jagan, P.W.3 Kashi Ram and P.W. 4 Dilip. P.W.1 being the informant, P.W.2 being the shop keeper Jagan, P.W.3 Kashi Ram is the nephew of the deceased (being the son of Ranjeet, the other brother of the deceased) and P.W.4 Dilip is the sons of the informant. Obviously they have been produced as eye-witnesses, or material witness to unfold the prosecution case. Likewise, the prosecution tendered in evidence some 36 documents. The accused persons took the stand of denial. They also denied to have got made various recoveries. The learned trial court after so completing the trial convicted and sentenced the five accused persons as above. The learned trial court first of all discussed the aspect of formation of unlawful assembly, with common intention to cause death, and referred to Ex.P-36, an F.I.R. lodged by the accused Hari Singh, on that very day, 14.6.1982 at 7.30 P.M., 4 to the effect, that Om Prakash, Sant Lal, Mange Ram sons of Harpat are their relations, and there is enmity between Kalu Ram on the one hand, Om Prakash, Mange Ram, and Jai Singh on the other hand. They are on litigating terms. With this, it was alleged, that last evening Kalu and Jai Singh came in the Chowk of their village and threatened him. Then, on the date of report being 14.6.1982 at 2 in the noon, their brother Chhotu came from his in-laws house, and alighted at the bus stand Gandhi Bari, at that time Kalu and his nephews Dilip and Kashi Ram stopped Chhotu Ram, and intimation was sent at his house. Thereupon his brothers Kashi Ram, and Bhoop Singh, and the father Moman Ram came there armed with lathis, and when they reached near the Kund, situated near the house of Hans Ram Chamar, Kalu Ram came armed with single barrel 12 bore gun, and started firing at him, but his father did not get separated, and Kalu fired from that 12 bore gun on his father, with the result, that his father died on the spot. Kalu Ram started reloading the gun, but since empty cartridge did not come out, he along with Kashi Ram and Bhoop Singh challenged Kalu Ram, who ran towards bus stand, thereupon they chased him, and near the shop of Jagan, injuries were inflicted on the head and face of Kalu Ram, who concealed himself in the shop of Jagan. The informant and Bhoop Singh entered in the shop, while Kashi Ram 5 remained out side. Kalu Ram was made to fall in the shop, and injuries were inflicted to Kalu Ram with lathis, they took the 12 bore gun with empty cartridges, and came to their father who was bleeding. After one hour the victim died of firearm pallets, and he has come along with Kashi Ram to lodge the report. On this report F.I.R. No. 40 was registered, for the offence under Section 302 I.P.C. It was noticed, that in this report itself, the informant Hari Singh himself has disclosed about himself causing injuries on the face and head of Kalu Ram in the shop of Jagan, by entering the shop along with Bhoop Singh. Then it was noticed, that the F.I.R. Ex.P-1 has been lodged at 7.45 P.M. wherein also the incident is said to have taken place at 2 P.M., and there is interpolation in the figure 1 and 0 in the F.I.R. Number, and it is alleged in this Ex.P-1, that at about 2 in the noon when the brother of the deceased was sitting on the shop of Jagan, accused started beating the deceased outside the shop, and inflicted fatal injuries, and when his brother entered the shop, there also he was beaten. Thus it was found, that presence of Dalip and Kashi Ram has been admitted by the accused themselves, from the averments contained in Ex.P-36. Thus, the learned trial court proceeded with accepting presence of P.W.3 and P.W.4 at the place of incident, and their being eye witnesses. 6 Then, the evidence of P.W.2 has been discussed, and it was found, that this witness Jagan Nath had turned hostile, but he was treated to be eye witness. Then the evidence of informant P.W.1 was discussed, who also proved the site plan Ex.P-2, Panchayatnama Ex.P-3, and the recovery memo of blood stained clothes of the deceased. It was noticed, that this witness is wavering on the aspect of F.I.R. being lodged on 14th or 15th, but then it was found that his evidence cannot be discarded altogether, F.I.R. not being a substantive piece of evidence, nor is the last word of prosecution. Thus, implicit reliance was placed on the aforesaid eye witnesses. Then, certain circumstances were also considered, viz. the recovery of lathi from Hari Singh, recovery of lathi from Kashi Ram, recovery of Kulhari from Bhoop Singh, and recovery of other lathies, from Mahendra and Chhotu each. Then, the argument of incident being out come of sudden and grave provocation was negatived, and was held to be an act of retaliation. With these findings the accused persons have been convicted as above. We have heard the learned counsel for the appellants, and the learned public prosecutor. 7 Before discussing the prosecution evidence, we would like to refer to Ex.P-36, as this has been considered to be of foundational importance, and the evidence of P.W.3 and 4 has been substantially believed on its basis. This document is available on the record at page A-56/2, and a look at it shows, that it has been filed vide application dt. 25.5.1983, available in record at page A 56/1. Then this original Ex.P-36 is nothing but a type copy of some paper, purporting to be F.I.R., which is neither photostat copy, nor any certified copy, nor compared by anybody in authority. It does not bear any mark, to attach any sanctity about its reliability or make it admissible. The matter does not end here. P.W. 11 Dungarmal, S.H.O. the investigating Officer has proved this document also, by deposing that on 15.6.1982 accused Hari Singh s/o Moman Ram Jat appeared, and lodged an oral report, that Kalu Ram has killed his father Moman Ram, by a gun fire. This report is Ex.P-36, and bears his signature 'A to B', while thumb mark of Hari Singh is at point 'X to Y'. This report was read over to Hari Singh who understood it and found it to be correct, and put his thumb mark, and after investigation challan was filed. Likewise, he has further deposed in cross-examination, that after receiving the report Ex.P-36 he did not relieve Hari 8 Singh, and had carried him with him to Gandhi Bari, and since then Hari Singh is continued to be with him. He took Kashi Ram also with him from Police Station Bherani, and he also continued to be with him. Even at the cost of repetition it may be observed, that Ex.P- 36 does not bear any marks like 'A to B', much less thumb mark or the mark 'X to Y'. Then, in cross examination, he has further deposed that in the said F.I.R. he prepared Panchnama Lash Ex.D-8, Fard Surat Haal Lash Ex.D-9, Ex.D-6 and D-7 are the site plan and site inspection note, which depict the correct situation as was found. Then, he has admitted that in Ex.P-11, 13, 27, 34 F.I.R. Number is not mentioned. Then, gun was recovered in F.I.R. No. 40/82 (Ex.P-36) which was sent to F.S.L., which was having one empty cartridge blocked in the barrel, and that at that time gun was with Kalu Ram, and that, Kalu Ram had committed murder of Moman Ram at place 'O' shown in Ex.P-2. It may be noticed that Ex.P-2 is the site plan of the present case, showing place of incident, which is a place situated south west to the shop of Jagan. During course of argument, we were told that in the case of murder of Moman Ram no challan was filed, rather final report was given, as the accused in that case being Kalu Ram, had become a subject matter of murder in the present case. This, in conjunction with the fact, that P.W. 4 Dalip, who is son of the 9 informant, has deposed to be not knowing Moman Ram, nor to have ever seen him, and that he did not even hear Kalu Ram having killed or murdered Moman Ram on the same date of incident, (क ल न ममन क उस ज म  ददय ह ऐस म न नह सन ). He deposed to be not aware about Kalu having undergone imprisonment. It would suffice to say, that if the story of Ex.P-36 were to be accepted, the two murders have taken place immediately one after another, and according to that report, this Kashi Ram was there, and claims to be nephew of Kalu Ram. In such circumstances, when he chooses to depose to have not even heard of Moman having been murdered by Kalu on that day, this, coupled with the above catalogued circumstances, Ex.P-36, on which implicit reliance has been placed by the learned trial court, cannot be relied upon at all. It is a different story, that Ex.P-36 is not even a document legally admissible in evidence in law. Thus, the very basis of basic assumption, made by the learned trial court, to place implicit reliance on these two witnesses P.W. 3 and P.W.4 falls flat. In this sequence in the F.I.R. Ex. P-1 it becomes very significant, as to whether it was lodged on 14th or 15th. There may be circumstances and cases, where even a day's delay in lodging the report may not be of very serious consequence, but here are peculiar 10 circumstances of the case, viz. we are asked to believe, that two cross murders have taken place, and present one being in retaliation. In this sequence this fact is required to be attached substantial importance, as to whether the F.I.R. was lodged on 14th or 15th. On looking at the front page of the F.I.R. it clearly purports to have been lodged on 14th at 7.45 P.M., but then reading all the contents thereof shows, that it narrates the incident of yesterday, i.e. 13th, and then it is received by the Magistrate at 8.30 P.M. on 15th. In this background, a look at the statement of informant Fula Ram P.W. 1 shows, that he was cross examined thoroughly on this aspect, and he has deposed in examination in chief, to have lodged the report Ex.P-1, and has proved it, but he has not given the date. Then, he was cross examined in detail, and he has stated that after giving report he returned, the S.H.O. did not accompany him, and came later. Then, he has stated that the S.H.O. came on the next day at about 10-11 in the morning. Then, the witness has changed by deposing, that the S.H.O. had come at about 10-11 in the night. Then, he further changed his statement, that the S.H.O. came to his village at 11 same night of the lodging of the report, and immediately he saw the dead body, and that the accused 11 Kashi Ram and Hari Singh were already there with the S.H.O., who were immediately arrested on lodging Ex.P- 1, and the S.H.O. brought them with him. It may be noticed here, that the S.H.O. P.W. 11 does not say so to have arrested Kashi Ram and Hari Singh on receiving the report Ex.P-1. He has denied the suggestion about the report having not been lodged on 14th, and to have been lodged on 15th, by being delivered to the S.H.O. in the village only. Then, he has picked up another story by deposing, that at the time when he gave information on 14th, Ex.P-1 was not scribed, and Ex.P-1 was scribed on 15th. This version was given out on being put the word “yesterday” appearing in the body of the F.I.R. Then he has again stated, that after giving report to the S.H.O. in police station, the S.H.O. made writing, and obtained his thumb mark on Ex.P-1, and he does not know as to how the word “yesterday” has occurred, and he has maintained that report was not lodged on 15th but on 14th, and that in earlier part of his statement he had wrongly stated that the report was lodged on 15th at village. Then, he was confronted with his police statement Ex.D-1 “A to B” being reference of F.I.R. No. 41 dt. 15.6.82, he stated, that he does not know as to how it came to be scribed. He denied the suggestion about the F.I.R. being lodged on 15th, describing it to be of 14th. Then, he has stated that his sister, Kashi Ram and Dalip had 12 come early in the morning of 15th, and on that very day S.H.O. interrogated them on 15th. The arrival of sister, Dalip and Kashi Ram is relevant, because in the earlier part he has stated, that sister of the informant is married at Rampuriya, and when Kashi Ram and Dalip came from Rampuriya, his sister also came from Rampuriya, as she had learnt about the incident, and in this process the informant denied the suggestion about Dalip and Kashi Ram to be not there at the place of incident, and to have come only after learning about the incident. In this very sequence again, a look at the statement of P.W. 11 would show, that he deposed to have reached on the spot on 15.6.1982, and inspected the site, and prepared Halaat Moka Ex.P-20. On 15.6.1982 he prepared the Panchayatnama Lash, Fard Surat Haal Lash being Ex.P- 21, seized the sample earth and blood smeared earth, and got the post mortem examination done, report whereof is Ex.P-9. In juxtaposition of this, we may recapitulate that P.W.1 has deposed that the S.H.O., immediately on reaching the spot saw the dead body, and obviously other things were done later, and Fard Surat Haal Lash Ex.P-21 is dated 15.6.1982, and very intelligently time has not been mentioned. The mentioning of time has been omitted, not only on this document, but on very many other documents as well. Even in arrest memo of Kashi Ram Ex.P-18 time has not 13 been mentioned. Though arrest memo of Hari Singh does mention time being 9 P.M. Site inspection note does not bear any date and time. Likewise, even the information memo Ex.P-23 and Ex. P-24 do not mention time. Likewise, the information memo Ex.P-30 and Ex.P- 31 do not mention any time. All this does cast serious doubt, about the fact of lodging of the report on 14th. Not only this, it is significant to note, that a bare look at Ex.P-36 also shows, that thereupon it is endorsed that F.R. No. 34 was given on 28.11.1982, under the heading “ADAM PATA”. It is notwithstanding all this, that as late as on 25.5.1983 the I.O. has chosen to depose the challan having been filed on this Ex.P-36 after completing investigation. This clearly shows, height of either telling lies, or careless attitude of the S.H.O., in giving statement in the Court. Thus, it is clear, that the prosecution has resorted to manipulations on every convenient place, and has even gone to the extent of tendering inadmissible document in evidence, and the S.H.O. has gone to the extent of giving statements, even contrary to the contents of Ex.P-36. In such circumstances, the presence of P.W. 3 and 4, who are none else than the son of the informant, and the nephews of the deceased, 14 cannot be presumed, as done by the learned trial court, and their evidence is required to be scrutinised with utmost care and caution, as to whether they were at all at the scene of incident, or that they had gone to village Rampuriya, to fetch the sister of the informant, and there having learnt about the incident, came in the morning, and thereafter the story was cooked up, introducing them as eye witnesses, and F.I.R. Ex.P-1 was subsequently lodged. In the above background now we proceed to examine the material and important evidence on record, on which the prosecution seeks to rest its case. As noticed above that evidence comprised of P.W.1, P.W.3 and P.W.4, as P.W. 2 has been declared hostile. Before proceeding with that, we may recapitulate the material part of the F.I.R. Ex.P-1, which is lodged by P.W.1 Fula Ram. According to this report after narrating the alleged actual incident, about the accused persons coming armed with weapons, and causing injuries to the deceased, deceased taking shelter in the shop of Jagan, but all of them having entered in the shop, and inflicted injuries, and having killed him. It is alleged in the report, that at that time Jagan, informant's son Dalip and his nephew Kashi Ram were available on the bus stand, who 15 had seen the incident, and very many other persons were there to see the incident. Thereafter on the informant's receiving information he went to the shop of Jagan, and saw the deceased dead having injuries on his person. Thus, according to this report, P.W. 1 Fula Ram informant is not an eye witness of the incident, and has lodged the report only on the basis of the information conveyed to him, obviously either by Dalip, Kashi Ram, and/or Jagan. Then, coming to statement as given in the Court as P.W.1, it is deposed, that Kalu is on litigating terms with the relations of the accused persons. He was told about the incident to have occurred on the bus stand on the shop of Jagan Nath, he asked Jagan Nath about the incident, and he was told that Kalu has been killed, and Kalu did not do anything. Obviously as observed above, on that very day, at that particular time, as the story goes, Kalu had killed the father of the appellants, Shri Moman Ram, and since as has come in the evidence of the two eye witnesses, they did not want to own that incident, and even decided to depose ignorance. It is in that sequence, that he has unnecessarily deposed, that his brother (deceased) did not do anything. Then he has deposed, that Jagan Nath had informed, that at the time of incident Dalip and Kashi Ram were there. Then, he made enquiries from Dalip and Kashi Ram. At the outset it may be observed, 16 that it does not stand to reason, that if so close relatives being the nephews of the deceased had seen the incident happening, they would not do anything, and informant would be left to be informed about their presence by the other alleged eye witness Jagan. Then, in cross examination he has further stated, that on 14th he had gone to village Jogiwala, wherefrom he returned at 3.30 in the noon, he had gone to Jogiwala on foot, though there is bus available. Then, he stated, that when he went to ask Jagan nobody else was with him. Then he has deposed, that the house of Kalu, his another brother Ranjit, and that of the witness are at the same place. He stated that Kashi Ram lives in the house of his father. While Dalip lives with the witness, and that the shop of Jagan is at a distance of 500 paces. He has also stated, that on 14th evening the S.H.O. had come in the village, and he does not know as to whether they had seen the dead body of Moman Ram. Then he had admitted, that Moman Ram had died at 5 P.M. on 14th, who was father of the accused. Then, he has clarified, that he was told that Moman Ram had died at his own house, and he