Prabhu Dayal vs The State Of Rajasthan

2. The case of the prosecution in brief is that on the night of 01.05.1997, the informant Vikram Singh, who was sleeping at a distance of 15 to 20 yards from his brother Gopal in his house, heard the sound of a fired gun shot and got up at 1:00 a.m. in the intervening night between 01.05.1997 and 02.05.1997; he saw Prabhu (the appellant herein), Indal, Rajveer, Gyan, and Shiv Singh armed with weapons and standing near the cot on which his brother Gopal was lying, shouting that Prabhu (the appellant herein) fired on his chest; then Prabhu told Shiv Singh to kill his bhabhi Smt. Devi; thereupon, Shiv Singh opened fire and injured her; Prabhu, Rajveer, Indal and Shiv Singh were having kattas (country made pistol) in their hands and Gyan was armed with farsa (axe); 4 to 5 other persons were also standing outside the compound but he could not identify them because of the darkness; the appellant-Prabhu was shouting that they have killed Gopal on that day and they will see who dares to oppose them in the future; the informant raised a hue and cry and at that point of time, Surjan, Ramesh, Subhash, Pappu and other neighbours reached on the spot. Based on these allegations, the 3 first information came to be lodged by Vikram Singh as per Exhibit P14 on 02.05.1997.

3. The Trial Court acquitted accused nos. 7 to 10 and convicted accused nos. 1 to 5, viz., Gyan Singh, Shiv Singh, Indal, Rajveer and Prabhu Dayal (the appellant herein) (Accused No.6 – Babu expired during investigation). Gyan Singh was convicted under S. 302, IPC simpliciter, and was sentenced to life imprisonment with a fine of Rs. 1,000/-. Shiv Singh was convicted under Section 307, IPC, and sentenced to simple imprisonment of 4 years with fine. The rest of the accused, including Indal, Rajveer, and Prabhu Dayal, were convicted under Ss. 302/149, IPC and given the same sentence as Gyan Singh. During the pendency of the appeal before the High Court, one of the accused – Indal expired. Thus, the appeal was heard by the High Court against four accused, namely, Gyan Singh, Shiv Singh, Rajveer and Prabhu Dayal. The High Court on hearing, while acquitting the accused – Rajveer, has confirmed 4 the judgment of conviction passed by the trial Court in respect of Gyan Singh, Shiv Singh and Prabhu Dayal.

The accused – Gyan Singh has served the sentence of imprisonment and he has not filed an appeal in this Court. The accused – Shiv Singh did not choose to file an appeal and consequently has accepted the judgment of conviction and sentence passed against him. Hence, the accused – Prabhu Dayal is the only person who is before this Court in this appeal, questioning the judgment and order of conviction passed against him.

5. PW30, the Station House Officer of the concerned police station has admitted in the cross-examination that at 2:00 a.m. on 02.05.1997, Vikram Singh, Lakshmi Karan and one more person came on a motor cycle to the police station at Chiksana and went away after saying that some miscreants have come in village Ikran and started open firing. Such information was entered in the Rozanama of the case diary at no. 29. At that point of time, none of the afore-mentioned three persons had given the name of any person who had opened firing. Based on such information, the appellant contends that the afore-mentioned information would be the first information, and as such information does not contain any of the names of the assailants, it can be said that none of the eye witnesses knew the names of 7 the assailants at 2:00 a.m. i.e., immediately after the incident. Since the accused and the witnesses are near relatives, they should have given the names in the police station at 2:00 a.m. itself when they visited the police station immediately after the incident. Though, such submission on behalf of the defence seems to be attractive at the first instance, the same cannot be accepted in the facts and circumstances of the case. The witnesses, namely, Vikram Singh, Lakshmi Karan and Ramesh who had come to police station at 2:00 a.m., being the close relatives of the deceased and injured Devi, are expected to first give treatment to the injured than to complete the formalities of lodging the complaint in detail. It is not in dispute that the afore-mentioned three witnesses did not stop at the police station at 2:00 a.m., on the other hand, they hurriedly came on a motor cycle and informed the police while staying on the motor cycle itself and went away immediately disclosing that the incident has taken place. Immediately thereafter, PW30 – Station House Officer went to the village in a jeep. By the time he reached the water tank, Vikram Singh, Lakshmi Karan and others were bringing the wounded Gopal and his wife Devi, who had sustained grievous injuries, in the tractor; both the injured were 8 shifted from the tractor to a jeep and were taken to the hospital by PW30. By the time they reached the hospital, it was 3:00 a.m. on 02.05.1997. After giving first aid to the injured, the written report as per Exhibit P14 was given at 5:35 a.m. in the hospital. Thus, virtually, there is no delay on the part of the witnesses who lodged the first information about the incident. The first information, Exhibit P14, in our considered opinion, is not hit by Section 162 of the Code of Criminal Procedure, inasmuch as it is a detailed addendum to the earlier information given at 2:00 a.m. Exhibit P14 is not inconsistent with the information recorded at 2:00 a.m. in the Rozanama of the police station. As mentioned supra, the first priority of the witnesses was to save the lives of the injured. Hence, the Trial Court as well as the High Court is justified in concluding that there is no delay in lodging the first information report, Exhibit P14, and that it cannot be discarded on the ground that it is hit by Section 162 of the Code of Criminal Procedure.

6. In the first information, it is clearly mentioned that the appellant fired on the deceased. However, the first informant (PW13), namely Vikram Singh, has deposed that immediately after hearing the sounds of fire he came to the spot and saw the 9 appellant – Prabhu Dayal, Gyan Singh, Shiv Singh, Indal and Rajveer, and at that point of time the injured Gopal was crying that Prabhu and Gyan Singh had fired at him. At that point of time, Prabhu said to Shiv Singh that the wife of Gopal is also crying and that she should also be fired at. Immediately thereafter, Shiv Singh fired at Devi while running away. Thus, there is a slight improvement in the evidence of the informant to the effect that Gyan Singh and Prabhu together fired on the deceased Gopal, and Shiv Singh fired on Devi.

7. PW11, injured Devi, whose evidence is important because her presence on the spot is not doubted, and who has also sustained gunshot injuries, has deposed about the incident in a most natural way that it had happened during night till early hours of the day. She has deposed that on the previous night, Gyan Singh and the deceased Gopal had drinks together and then had dinner; Devi (PW11) was having fever; when she was sleeping along with her husband, the accused Prabhu, Gyan Singh, Shiv Singh, Indal and Rajveer came at 1:00 a.m. and they all were armed with weapons; Gyan Singh had a pistol and an axe and the others were armed with pistols; at the first instance, the appellant fired with a pistol on the deceased but no one got 10 injured, inasmuch as it was misfired. At that point of time, Gyan Singh fired a gunshot from a country made pistol which entered from the back of the deceased and went out of the stomach of the deceased. Immediately thereafter, the appellant – Prabhu shouted and told Shiv Singh that Devi should also be killed, and consequently Shiv Singh fired a gunshot at Devi also.

14. Accordingly, the appeal stands dismissed and the sentence of life imprisonment imposed upon the appellant stands confirmed.