1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1) D.B.Criminal Appeal No.826/2004 Bharti Singh & anr. vs. The State of Rajasthan (2) D.B. Criminal Appeal No.898/2004 Mahaveer Prasad vs. The State of Rajasthan under Section 374(2), Cr.P.C. against the judgment dated 4.8.2004 passed by the learned Addl. Sessions Judge(Fast Track) No.2, Bikaner in Sessions Case No.97/03. Date of Judgment: May 16th ,2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA,J. Mr. H.S.S. Kharalia for the appellants in DBCr.Appeal No.826/04. Mr. N.K. Joshi for Mr.S.D. Purohit for appellant in DBCr.Appeal No.898/04 Mr. V.R. Mehta, P.P. for the State. Mr. S.D. Vyas for the complainant. .. REPORTABLE BY THE COURT( Per Hon'ble Mr.Tatia,J): These two separate appeals have been preferred, one 2 D.B.Criminal Appeal No.826/04 by appellants Bharti Singh and Angrej Singh both sons of Jagmal Singh and another D.B.Criminal Appeal No.898/04 by Mahaveer Prasad son of Narayan Ram, as all the three appellants have been convicted by the court of Addl Sessions Judge (Fast Tract) No.2, Bikaner in Sessions Case No.97/2003 under Section 302/34 and under Section 450, IPC. They have been sentenced to life imprisonment under Section 302/34 IPC and awarded fine of Rs.1000/- each and under Section 450, IPC, they have been sentenced to undergo five years' rigorous imprisonment with fine of Rs.700/- each and in case of default of payment of fine, the accused-appellants have been sentenced to further undergo four months' and one month's imprisonment respectively. As per the prosecution case, on 25.6.2002 at 6.52 p.m., S.H.O., Sadar Police Station, Bikaner received a telephonic message from Constable Sardar Singh who was posted in PBM Hospital Police Chowki that one Jethu Singh has been brought in the hospital in dead condition. On this information, said SHO Rajendra Singh (PW-12) proceeded to said PBM Hospital and obtained requisition from Sardar Singh, constable of PBM 3 Hospital Police Chowki, Bikaner and found that the body has been placed in mortuary. After taking information of the place of the incident etc., the SHO Rajendra Singh proceeded to the house of deceased Jethu Singh who was residing as tenant in the house of one Jetha Ram. There on the spot, in the house of Jethu Singh, his wife Smt.Tamanna Singh gave a written report to SHO Rajendra Singh (Ex.P.41). In the written report submitted by complainant Smt.Tamanna Singh, wife of the victim it is stated that the complainant married with the victim Jethu Singh about four months ago and since then she is residing with him in the house of victim Jethu Singh which was taken on rent by Jethu Singh. His husband had dispute with accused Angrej Singh because of the reason that accused Angrej Singh used to tease the complainant. Because of said reason, the complainant's husband Jethu Singh gave beating to accused Angrej Singh. Because of that enmity, on 25.6.2000 at 5.20 p.m. accused Angrej Skingh with sword, Bharti Singh with Gupti, Mahaveer Prasad with iron rod and one Satyendra with pistol forcibly entered in the residentialroom of the victim and of the complainant. At that time, complainant's husband Jethu Singh, complainant herself and Anand Mehra, Amin, 4 Rajesh and Amit were sitting on the mat in the room. All the accused immediately started beating complainant's husband Jethu Singh, upon which the complainant shouted for help. Satyendra dragged the complainant's husband from the room and took him to the lane where all the accused gave more beatings to the complainant's husband. It is also alleged that along with above accused, there were 5-7 persons more who remained standing out side and they were not known to the complainant. Anand Mehra and others took Jethu Singh to the hospital where he died. On the basis of said written report, a case under Sections 302, 452, 147, 148 and 149, IPC was registered and the report was sent to the Police Station for drawing FIR. On the basis of said written report, FIR (Ex.P.31) was registered and investigation started. During investigation, memo for the body of the deceased Jethu Singh and Panchnama were prepared. The body was sent for post mortem and post-mortem report was obtained. The victim Jethu Singh's blood stained pent was also seized and seizure memo was prepared and the articles were put in sealed cover. The site map and the report were prepared. Photos were taken. The blood from the floor of the room 5 where the incident occurred, was taken by scrapping and was put in a glass bottle and was sealed and seizure memo was prepared. From the lane near the house of the victim, where also it is alleged that the victim was given severe beatings, the blood soil was seized and sealed. From the room one blood stained mat was also seized and was put in sealed cover. All the articles were duly deposited in the Malkhana and were sent to the FSL. The accused Kalu Sisngh, Punam Singh, Soman, Barkat Ali, Angrej Singh, Bharti Singh and Mahaveer Prasad were arrested and their arrest memos were prepared. Accused Kalu Singh, Barkat Ali and Soman gave information under Section 27 of the Evidence Act and on the basis of which one bamboo from each of above accused was recovered.From accused Angrej Singh, a sword and from accused Bharti Singh, gupti were recovered and recovery memos were duly drawn. It is alleged that one Jugal Singh also suffered injuries in this incident who was also medically examined. After collecting above articles and recording evidence of the witnesses under Section 161, Cr.P.C, challan was filed against seven accused. In the trial court, charges under Sections 147, 148, 450, 6 302 and in the alternative, under Sections 302/34 , 323 and 324, IPC were framed against all the accused which were denied by all the accused and they sought trial. The prosecution produced PW-1 Anand Mehra, PW-2 Amit Sharma, PW-3 Kana Ram, PW-4 Vikram Singh, PW-5 Dr. P.N. Mathur, PW-6 Rajesh Mehra, PW-7 Amit, PW-8 Jai Kumar, PW-9 Sugan Chand, PW-10 Lalu Ram, PW-11 Hanuman Singn, PW-12 Rajendra Singh, PW-13 Shri Krishna and PW-14 Bhur Singh. The statements of the accused were recorded under Section 313, Cr.P.C. wherein the accused denied the allegations. In defence, the accused produced witness DW-1 Sushil. All the accused except Angrej Singh in their statements under Section 313, Cr.P.C. stated that they had no enmity with Jethu Singh. The trial court convicted the appellants Angrej Singh, Bharti Singh and Mahaveer Prasad under the sections referred above and sentenced them to undergo sentence as awarded and mentioned above. The other accused persons were acquitted from the charges levelled against them. The trial court held that the accused entered in the room of the victim and committed offence. The learned counsel for the appellants in both the 7 appeals vehemently submitted that the victim and the prosecution witnesses were of the criminal character and Jethu Singh was accused in a criminal case launched by Angrej Singh. Therefore, absolutely false story has been concocted to implicate all the appellants and to see that none of the enemy of the complainant remained uninvolved in this case, therefore, it has been mentioned in the written report that there were 5-7 persons more with the appellants. It is also submitted that in fact the report given by complainant Smt.Tamanna Singh is not the first information report and in fact the first information report was report given by Smt. Tamanna Singh to police on telephone as stated by prosecution witness PW-2 Amit Sharma or the report given to Salawat Khan, ASI, as per statement of the same witness PW-2 Amit Sharma. Therefore, the prosecution case that Smt. Tamanna Singh gave written report (Ex.P.41) on spot to the SHO, Police Station, Bikaner is absolutely false and that is a document created to involve the appellants in the crime because of enmity between above Angrej Singh and Jethu Singh the victim. In view of the above facts, it is clear that truth has been suppressed by the prosecution and there was 8 no reason for not producing the report which was written by Salawat Khan, ASI on the instructions of complainant Smt. Tamanna Singh. It is also submitted that none of the witness were present on the spot and they have been planted subsequently and, therefore, the written report Ex.P.41 was created and earlier information given to police by Smt. Tamanna Singh has been suppressed. It is submitted that as per the prosecution as well as report Ex.P.41 dated 25.6.2000, Satyendra had pistol in his hand and he asked all the persons present in the room to remain standing in the corner of the room and, therefore, five persons could not intervene when the victim Jethu Singh was beaten severely. The said story was found to be false and Satyendra Choudhary is not accused in the case in hand or in another case no.57/2000 wherein Rajesh and Sonu were prosecuted. It is also submitted that looking to the antecedents of all the witnesses, it is highly improbable that they will not try to save Jethu Singh if he would have been subjected to beatings and severe beatings by a number of persons in their presence. The learned counsel for the appellants further submitted 9 that if the fight occurred in the room then looking to the size of the room, it is impossible that there will be no blood on the clothes of all the witnesses if they were present at the time of incident. Not only this, the witness Anand Mehra was accused in another murder case and he was convicted and sentenced to undergo life imprisonment and he was on bail which was granted in his appeal by the High Court against his conviction. According to the learned counsel for the appellants, Anand Mehra is a history sheeter. The witness Anand Mehra(PW-1) also admitted that in criminal case launched by Angrej Singh, the witness Anand Mehra was also co-accused with Jethu Singh in which incident, according to Angrej Singh, Jethu Singh and others including the prosecution witness PW-1 Anand Mehra broke down the leg of appellant Angrej Singh. He admitted that he was facing several other criminal cases and in view of the above fact, he was a known offender to the police and if he would have been on the spot, he would have been arrested by the police in the pending criminal case against him. Witness PW-1 Anand Mehra is highly interested witness and looking to his background, his evidence is absolutely unreliable. 10 It is stated that Amit Sharma (PW-2) himself is a taxi driver and owns his own taxi and as per the prosecution, said witness PW-2 Amit Sharma was in the room along with Jethu Singh and others. In that situation it is highly improbable that the victim will be sent to hospital in other's taxi. From the other contradictions in the statement of PW-2 Amit Sharma, it is proved that he was not present at the time of occurrence of incident. PW-2 Amit Sharma is also one of the accused in criminal case launched by appellant Angrej Singh for breaking leg of Angrej Singh. PW-2 Amit Sharma resiled from his earlier statement given during investigation. In cross-examination, he stated that immediately after the incident, he told the names of other accused but in the written report (Ex.P.41) their names have not been mentioned. The witness Amit Sharma is facing several criminal cases and he was bound down under Section 110, Cr.P.C. looking to his criminal antecedents. Jethu Singh was also bound down by the order of the court of Addl. District Magistrate as admitted by PW-2 Amit Sharma. The learned counsel for the appellants vehemently submitted that all the witnesses clearly stated that Angrej Singh had one sword in his hand and Bharti Singh had Gupti 11 with him and Mahaveer Prasad was with iron rod and rest of the accused had lathis with them. As per the medical report and the statement of PW-5 Dr. P.N. Mathur, on the body of deceased Jethu Singh, there were 14 injuries and all were incised wounds. From Gupti, no such injury could have been caused. The only injury no.7 alone could have caused the death in ordinary course and the cause of death has been given by PW-5 Dr. P.N. Mathur is because of several injuries on the body of deceased. In view of above, the involvement of Bharti Singh and Mahaveer Prasad is not corroborated by medical evidence and that is relevant because of the fact that ocular evidence against the appellant is highly unreliable. Therefore, it is clear that the appellants have been falsely implicated in the case. It is also submitted that as per PW-6 Rajesh, the police reached on the spot within an hour or quarter past to hour and remained their for more than two hours on the spot and at that time, witness PW-6 Rajesh himself was present there and in his presence, Smt. Tamanna Singh gave written report to the police. It is also submitted that if witness was present at the time of the incident and thereafter then there was no reason for the police to record 12 the statement of the witness Rajesh after four days, on 29.6.2000 and there was no reason for recording the statement of witness PW-7 Amit after more than two months. In fact the witness PW-7 Amit was not in the town at the time of incident and further for more than two months thereafter. The learned counsel for the appellants also submitted that as per the prosecution witness PW-11 Hanuman Singh, the 10 packets were sent to the Forensic Science Laboratory, were returned back by the FSL with objections. What were the objections of the Forensic Science Laboratory, have not been disclosed by the prosecution. The prosecution did not produce the evidence from which it can be proved that those objections of FSL were curable and further the prosecution did not produce the letter with which the samples were sent to FLS second time. Report of FSL dated 12.10.2001 reveals that there was no blood on the alleged recovered Gupti and it has been alleged that accused Bharti Singh had Gupti with him. It is also submitted that the Gupti can cause only pierced wound and not incised wound. In view of the above reasons, involvement of Bharti Singh is neither proved from the nature of the injuries found on the body of the victim Jethu Singh 13 and contradicted from the FSL report dated 12.10.2001. It is also submitted that as per the FSL report dated 8.8.2001, no blood was found on the articles-four dandas. Therefore, the entire evidence relating to having blood stains on any of the articles, has no connection with the articles which have been recovered. It is also submitted that the appellants have been wrongly connected with the articles as no articles were recovered from any of the accused. It was also pointed out by the learned counsel for the appellants that for the same case, separate challan was filed against two more accused Rajesh and Sonu, upon which Sessions Case No.57/2000 was registered and in that Sessions Case No.57/2000, both the accused Rajesh and Sonu have been acquitted by the trial court vide judgment dated 8.6.2001. It is also submitted that during investigation, all the witnesses stated that sharp edged weapons were used but the witness in the court stated that the victim was given beatings by the lathis and contrary to it, injuries on the body of the victim were found by the sharp edged weapon in large number and no injury from blunt weapon on the body of the victim. 14 In D.B.Criminal Appeal No.898/2004 preferred by Mahaveer Prasad, the learned counsel for the appellant tried to distinguish the case of appellant Mahaveer Prasad and submitted that case of Mahaveer Prasad is on higher footing. In the report submitted by the complainant dated 25.6.2000, it has been alleged that Mahaveer Prasad had one iron rod with him and he inflicted injury by iron rod on the victim and this fact is contrary to the medical evidence. It is submitted that even the evidence of the witnesses of inflicting injuries by Mahaveer Prasad upon the victim is of general nature and absolutely vague. Appellant Mahaveer Prasad was not present in the town and he stated so in his statement recorded under Section 313, Cr.P.C. DW-1 Sushil proved that appellant Mahaveer Prasad was in the motor garage from 5 p.m. to 8- 8.30 p.m. on 25.6.2000. He stated that at that time about 10- 15 persons were running towards Bagwano-ka-mohalla through Gajner road and then came running after 15-20 minutes and thereafter he came to know that they gave beating to Jethu Singh. The witness DW-1 Sushil further stated that there was dispute between Jethu Singh and Smt. Tamanna Singh's family with respect to Jethu Singh's marriage with Smt. Tamanna 15 Singh. It is submitted that there was no reason to disbelieve the statement of DW-1 Sushil. The rest of the arguments as referred above, were also reiterated by the counsel for the appellant Mahaveer Prasad, in his appeal. The learned public prosecutor supported the judgment of the trial court and stated that the prosecution fully proved the case against the appellants by cogent evidence and the complainant Smt. Tamanna Singh was not produced by the prosecution because she was beyond the reach as her address was not known and no adverse inference can be drawn on account of non-production of Smt. Tamanna Singh in view of the fact that by other evidence, the prosecution proved that Smt. Tamanna Singh submitted the written report Ex.P.41. The enmity between accused Angrej Singh and victim Jethu Singh and other witnesses, cannot be ground for discarding the trustworthy evidence of the witnesses, which has not been shattered by the lengthy cross-examination by the appellants. The reason for committing crime was enmity then the enmity may be ground for committing offence by the accused and that fact has been clearly mentioned in the report submitted by the complainant Smt. Tamanna Singh. It is also submitted 16 that the FSL reports were duly obtained and it cannot be presumed that without getting the articles in the course of official business, the FSL has sent the reports on the articles received by the FSL. The other grounds raised by the appellants were rebutted by the learned public prosecutor. We considered the submissions of the learned counsel for the parties and perused the record. From the facts, it is clear that there was a dispute between the victim Jethu Singh and Angrej Singh and the reason for the dispute was teasing of the complainant Smt. Tamanna Singh with whom Jethu Singh married four months before the date of incident. The dispute reached to such extent that according to the appellant Angrej Singh himself, his leg was broken by victim Jethu Singh and witnesses PW-1 Anand Mehra and PW-2 Amit Sharma. Appellant Angrej Singh launched criminal case against above persons wherein challan was filed against victim Jethu Singh and also against the witnesses PW-1 Anand Mehra and PW-2 Amit Sharma. The antecedents of appellant Angrej Singh as well as victim Jethu Singh and prosecution witnesses clearly shows that they were facing several criminal cases. It is also clear from the 17 evidence of the witnesses PW-1 Anand Mehra, PW-2 Amit Sharma, PW-6 Rajesh Mehra, PW-7 Amit and PW-14 Shur Singh father of victim Jethu Singh, that the marriage of Jethu Singh with Smt. Tamanna Singh was inter-caste marriage and was not accepted by even family members of Jethu Singh and, therefore, Jethu Singh was living separate from his parents in a rented room. Therefore, so far as genesis and motive for committing the crime by the appellants appear to be probable. These facts cannot be ignored. In the background of above facts, if the prosecution failed in producing complainant Smt. Tamanna Singh, after making efforts of her production and the prosecution could not find out the address of Smt. Tamanna Singh, no adverse inference against the prosecution can be drawn nor it can be presumed that the complainant Smt. Tamanna Singh if would have been produced by the prosecution, she would not have supported the prosecution case. In view of the fact that the prosecution made efforts to produce the witness but could not produce her in evidence and she was not traceable and, as noticed above, Smt. Tamanna Singh was of different caste than the caste of the victim and the victim Jethu Singh and 18 complainant Smt. Tamanna Singh were residing separate from Jethu Singh's parents and victim Jethu Singh's family members were not happy with this marriage, therefore, in ordinary circumstances, it was probable that the complainant Smt. Tamanna Singh would have left from her place of living and left no address. It is court's judicial discretion to draw adverse inference against the party withholding the evidence and not to draw adverse inference is also a judicial discretionary decision. In the facts of the case, since it is not a case of withholding of witnesses by the prosecution voluntarily and in view of the fact that there are other sufficient evidence on record that the complainant Smt. Tamanna Singh herself submitted the written report Ex.P.41 on the spot to the SHO PW-12 Rajendra Singh, it is held that the prosecution proved the fact that written report Ex.P.41 was submitted by Smt. Tamanna Singh which is supported by other evidence, which we are discussing herein below. We do not find any reason to disbelieve the statement of PW-12 Rajendra Singh who stated that Smt.Tamanna Singh gave written report to him on spot and said report was taken on record and the case was registered by PW-12 SHO Rajendra 19 Singh on the basis of the said report forthwith. The incident occurred at 5.20 p.m. on 25.6.2000. The victim was taken in the hospital in three-wheeler (tampoo) and from where the information was sent by the police chowki of the hospital itself to the SHO PW-12 Rajendra Singh and the SHO Rajendra Singh, after coming to the hospital and after collecting the particulars of the victim, reached on spot and at 7.30 p.m. only written report (Ex.P.41) was given to him, then there was no time gap between the time of incident and reaching of the police on the spot and receiving the written report Ex.P.41. The FIR was sent to the court concerned in the next morning as at that time, working hours of the courts were morning. Submitting of written report by Smt. Tamanna Singh to PW-12 Rajendra Singh is proved from the evidence of the other witnesses who were present on the spot and referred above. In proof they stated that Smt.Tamanna Singh gave information to the police on the spot. The contention of the learned counsel for the appellants that in view of statement of PW-2 Amit Sharma, Smt. Tamanna Singh gave information to the police first on telephone as per the statement of PW-2 Amit Sharma or Smt. Tamanna Singh gave oral report to ASI Salawat 20 Khan is concerned, we do not find any merit in the said statement because the witness Amit Sharma's this statement that Smt.Tamanna Singh informed the police on telephone is vague and improbable and not corroborated by any other witness. He had no personal knowledge that Smt. Tamanna Singh reported the matter to the police on phone. Same is the position with respect to giving report to Salawat Khan, ASI by Smt. Tamanna Singh. The statement of witness PW-2 Amit Sharma is vague and not supported by other evidence. The report Ex.P.41, as said above,which was given with promptness on the spot, contains the facts how unfortunate event happened. In the report, names of appellants Angrej Singh, Bharti Singh and Mahaveer Prasad have been disclosed. The said fact finds support from the evidence of witness PW-1 Anand Mehra, PW-2 Amit Sharma, PW-6 Rajesh