FIR corroborated by medical evidence—Doctor who examined deceased opined that he received injuries by knife which were sufficient to cause death in the ordinary course of nature and injuries could have been inflicted with knife recovered upon disclosure statement of accused—AIR 2006 SC 1410 : (2006) 9 SCC 272 : JT 2006 (3) SC 452 : (2006) 3 SCALE 156 : (2006) CriLJ SC 1691
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State of JAMMU AND
KASHMIR
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Appellant
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Versus
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Mohan Singh and ANOTHER
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Respondent
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(Before : B. N. Agrawal And A. K. Mathur, JJ.)
Criminal Appeal No. 487 of
2000, Decided on : 09-03-2006.
Penal Code, 1860—Sections 302 and
34—Murder—Appeal against acquittal—Prosecution case as disclosed in FIR
corroborated by medical evidence—Doctor who examined deceased opined that he
received injuries by knife which were sufficient to cause death in the ordinary
course of nature and injuries could have been inflicted with knife recovered
upon disclosure statement of accused—Evidence of eye-witnesses who disclosed in
FIR all material particulars found quite consistent, natural and stood the test
of lengthy cross-examination by defence—Trial Court was justified in recording
conviction ordering life imprisonment to accused—Order of acquittal rendered by
High Court suffered from the vice of perversity liable to be set aside.
Counsel for the Parties:
Anis Suhrawardy and Tabrez Ahmad, Advs., for Appellant
E. C. Agrawala, Advocate, for Respondents.
Judgment
B. N. Agrawal,
J—Respondent No. 1-S. Mohan Singh was convicted by the trial court
under Section 302 read with Section 34 of the Indian Penal Code (hereinafter
referred to as 'IPC') and sentenced to undergo imprisonment for life and to pay
a fine of ` 1,000/-, in default to
undergo further imprisonment for a period of six months. Respondent No. 2-S.
Prithpal Singh was convicted under Section 302 IPC and sentenced to undergo
imprisonment for life and to pay a fine of `
1,000/-, in default to undergo further imprisonment for a period of six
months. On appeal being preferred, the High Court acquitted both the
respondents. Hence, this appeal by special leave has been filed by the State of
Jammu and Kashmir.
2. Prosecution case, in short, was that a dispute was
going on between Yush Paul Singh son of Ram Lal and one Titu, nephew of Balwant
Singh, on the one hand and the two respondents on the other hand and for
resolving the same, a meeting was convened on 23rd July, 1985 at 6.00 p.m. on
the bank of river near Gurdwara in village Sawan Chak. In the said meeting, no
decision could be arrived at, as such, respondent No. 1-S. Mohan Singh is said
to have left the meeting in the midway and other people also dispersed after
this. Thereafter, Ram Lal heard cries of his son Yush Paul Singh from the
compound of Gurdwara and on arrival there, he found that respondent No. 1 had
caught hold of Yush Paul Singh and respondent No. 2 was inflicting injuries upon
him with knife. Seeing this, Ram Lal made an attempt to catch hold of respondent
No. 2 in order to save his son but in the meantime, respondent No. 1 is said to
have hurled a stone on him, as a result of which, Ram Lal sustained injuries and
fell down. Apart from Ram Lal, the occurrence is said to have been witnessed by
Babu Ram (PW 6), Pritam Singh (PW 4), Balwant Singh and Satnam Singh.
Thereafter, Yush Paul Singh was immediately taken to the hospital on a truck
where the doctor declared him dead. Thereupon, Ram Lal accompanied by witnesses,
Pritam Singh and Balwant Singh went to Kathua police station to lodge a first
information report whereupon the statement of Ram Lal, a case was registered by
the police on the same day i.e., on 23rd July, 1985 at 7.20 p.m. against the
respondents. The police after registering the case, took up investigation and on
completion thereof submitted charge-sheet, on receipt whereof the learned
Magistrate took cognizance and committed the respondents to the court of
Sessions to face trial.
3. Defence of the accused persons was that they were
innocent, had no complicity with the crime, no occurrence much less the
occurrence alleged had taken place and the prosecution party had received
injuries in some other manner of occurrence at some other place inasmuch as they
have been falsely roped in in this case to feed fat the old
grudge.
4. During trial, both the parties adduced evidence and
upon conclusion thereof, the trial court recorded conviction of the respondents,
as stated above, which having been reversed by the High Court, the present
appeal by Special Leave by the State of Jammu and Kashmir.
5. During the course of hearing, it has been submitted by
learned counsel appearing on behalf of the respondents that respondent No. 2-S.
Prithpal Singh died during pendency of this appeal on 27th November, 2003 which
fact has not been denied on behalf of appellant State. As such, the present
appeal against respondent No. 2 stands abated. In view of this, in the present
appeal, we are required to consider the case of respondent No. 1-S. Mohan Singh
alone.
6. The prosecution case as disclosed in the first
information report is corroborated by the medical evidence as the doctor who
examined deceased Yush Paul Singh opined that he received injuries by knife and
the injuries were sufficient to cause death in the ordinary course of nature.
Upon the disclosure statement made by respondent No. 2, a knife was recovered
from his house. The said knife was shown to the doctor who stated that only one
side of the blade of the knife was sharp and the other edge was blunt. Doctor
Harbans Singh, who was examined as PW-13 on seeing the said knife, stated that
the injuries found on the person of deceased could have been inflicted by the
same. As such, the High Court was not justified in coming to the conclusion that
the medical evidence does not fit in with the prosecution
case.
7. Objective findings of the investigating officer also
prove the place of occurrence disclosed by the prosecution witnesses, as the
investigating officer who immediately inspected the place of occurrence, after
registration of the case, found and recovered blood stained earth therefrom
which contained human blood.
8. Out of five eyewitnesses, witnesses Balwant Singh and
Satnam Singh could not be examined during trial for the reasons, which were
beyond the control of prosecution. The trial court has found and recorded, as
such in its judgment that on several dates in the years 1986 and 1987, these
witnesses were produced by the prosecution for their examination but on all the
occasions, the accused took time in the case and did not allow the prosecution
to examine them. Thereafter, when the witnesses did not appear, the trial court
issued warrants of arrest against them on request being made by the public
prosecutor. But all the time, they were found absent from their houses and it
was reported that they had gone out for discharging their professional duties as
drivers. From the aforesaid facts, it becomes clear that the prosecution was all
the time ready and willing to examine the witnesses and had taken all possible
steps for their examination but they could not be examined for the reasons
beyond their control. As such, the High Court was not justified in drawing
adverse inference against the prosecution for non-examination of these two
witnesses.
9. The next eyewitness was Pritam Singh who was examined
as prosecution witness in court. This witness supported the prosecution case by
saying that a meeting was convened for resolving dispute between the parties but
as the same could not be resolved, respondent No. 1 who was also present in the
meeting, left the place. He admitted that he heard Yush Paul Singh crying but
has not supported the prosecution case in relation to respondent No.1's catching
hold of the deceased and respondent No. 2 assaulting him with a knife, although
this witness in his statement made before the police had specifically mentioned
these facts. This witness further stated in court that he took Yush Paul Singh
along with other injured to the hospital where the doctor declared Yush Pal
Singh dead and thereafter he accompanied Ram Lal to the police station. In our
opinion, this witness has supported the prosecution case to a great extent,
excepting the part played by the respondents, in his statement made in court and
as he was gained over by the defence, he did not support the prosecution case in
relation to part played by the respondents though presence of respondent No.
1-S. Mohan Singh in the meeting has been admitted by him.
10. Other two eyewitnesses are the informant Ram Lal and
his brother Babu Ram. Ram Lal is father of deceased Yush Paul Singh whereas
witness Babu Ram is uncle of deceased Yush Paul Singh. These two witnesses have
supported the prosecution case disclosed in the first information report in all
material particulars and consistently stated that respondent No. 1 caught hold
of the deceased and respondent No. 2 inflicted injuries upon him with knife. We
have been taken through the evidence of these two eyewitnesses in extenso. Their
evidence is quite consistent, natural and both the witnesses have stood the test
of lengthy cross-examination by the defence. Out of these two witnesses, Ram Lal
was the informant and an injured witness as the doctor who examined him on the
date of occurrence itself found that he received injuries by hurling of stone.
Nothing could be pointed out on behalf of defence to show that the evidence of
these two eyewitnesses is not credible, excepting this that they were interested
witnesses. The High Court was not justified in disbelieving them on the sole
ground that they were interested persons. It is well settled that in a murder
trial, merely because a witness is interested or inimical, his evidence cannot
be discarded unless the same is otherwise found to be not trustworthy. In the
present case, we are of the view that the evidence of these two witnesses is
credible moreso when witness Ram Lal received injuries.
11. In the present case, the occurrence is said to have
taken place on 23rd July, 1985 at 6 p.m., the first information report was
lodged at 7.20 p.m. and a copy of the same was received by the Magistrate on the
next day i.e., 24th July, 1985 at 12.45 p.m. The High Court was of the view that
there was inordinate delay in sending the copy of the first information to the
Magistrate as the same was not sent to the Magistrate during the night between
23/24th July, 1985. In relation to this, the prosecution has taken a definite
stand that as there was no practice prevalent in the area for sending the report
to the residence of Magistrate, as such no adverse inference should have been
drawn by the High Court for not sending the report at the residence of
Magistrate. In our view, copy of the first information report was sent to the
Magistrate at the earliest on the next day in the court and there was no delay,
much less inordinate one, in sending the same to the Magistrate. In any view of
the matter, it is well settled that mere delay in sending the first information
report to a Magistrate cannot be a ground to throw out the prosecution case if
the evidence adduced is otherwise found to be credible and
trustworthy.
12. Having perused the two judgments rendered by the
trial court and the High Court and the evidence adduced on behalf of the
parties, we are of the view that the trial court was quite justified in
recording the order of conviction and the order of acquittal rendered by the
High Court suffers from the vice of perversity and is liable to be set
aside.
13. In the result, the appeal in relation to respondent
No. 1-S.Mohan Singh is allowed, the order of his acquittal rendered by the High
Court is set aside and his conviction recorded by the trial court is restored.
The respondent No. 1 is directed to be taken into custody forthwith to serve out
the remaining period of sentence. The appeal in relation to respondent No. 2-S.
Prithpal Singh has abated in view of the fact that he died during the pendency
of this appeal.
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