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1995 DIGILAW 777 (RAJ)

Surajmal v. State of Rajasthan

1995-08-29

N.C.KOCHHAR, RAJENDRA SAXENA

body1995
JUDGMENT 1. 1. Appellants, Suraj Mal and Amar Lal were tried in Session Case No.49/89 arising out of FIR No. 156/87 of Police Station Kotwali (District Jhalawar) under Sections 302 and 307, IPC by the Additional Sessions Judge, Jhalawar, who vide the impugned judgment dated 7.8.93 found them guilty and sentenced each one of them to undergo imprisonment for life and to pay a fine of Rs. 5000/- or in default in payment thereof to undergo rigorous imprisonment for a further period of two years under Section 302, IPC; and to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,500/- or in default in payment thereof to undergo rigorous imprisonment for a further period of one year under Section 307, IPC. 2. The Prosecution story was as under:- On 22.8.87 some 'Rebaris' (Shepherds) who hail from the western part of Rajasthan were returning alongwith their sheep flocks from Madhya Pradesh. When they reached near Jungle of 'Bor Ka Kua' in District Jhalawar, at about 4 p.m., some 'Banjaras' alongwith the appellants came there, Surajmal beheaded one sheep belonging to the 'Rebaris' and thereupon there was an exchange of hot words between the 'Rebaris' and the appellants. The appellants thereupon brought their guns from their hut situated near the scene of occurrence and fired gun shots at 'Rebaris' resulting into the deaths of Mangilal, Bhopal and Shekha and causing injuries on the persons of Girdhari, Sujaram, Laduram and Sanakala. 3. An information in this regard was given to the police by Moolaram (PW 7), who reported that he had heard gun shots and learnt that some 'Rebaris' had received injuries. That report was recorded in the rojnamcha (Ex.P.ll). The police party reached the spot where they found the above said three persons lying dead and other four persons lying in injured condition. The Investigating Officer recorded statement (Ex.P.3) of Sujaram (PW 8), and after making his endorsement thereon, sent the same to the police station through Pooran Singh, Constable whereupon case was registered vide FIR No.156/87 at about 11.45 p.m. on 22.8.87. 4. The Investigating Officer inspected the site and prepared site plan (Ex.P.15). He went to the hut of the appellant where he found the appellants present. Both the appellants produced their guns from which the shots were fired. The Investigating Officer took the appellants with their guns alongwith him. 4. The Investigating Officer inspected the site and prepared site plan (Ex.P.15). He went to the hut of the appellant where he found the appellants present. Both the appellants produced their guns from which the shots were fired. The Investigating Officer took the appellants with their guns alongwith him. He also picked up blood stained earth from the spot and after sending the injured to the hospital, prepared the inquest report in respect of the deceased persons, and sent them for their post mortem examinations. After completion of investigation challan was filed in the Court of the learned Judicial Magistrate concerned who committed the case to the Court of Sessions where the appellants were tried. The learned Trial Judge found the appellants guilty and sentenced them as indicated above. Hance this appeal. 5. We have heard the learned counsel for the appellants and the learned Public Prosecutor, and perused the record of the case. 6. During trial, the prosecution produced injured Sujaram (PW8) on whose statement, the FIR was recorded Sankal (PW9) and Laduram (PW10), beside other eye-witnesses, Samela (PW13), Bahaour (PW14), Pokar (PW16), Phoosaji (PW 17) and Joga (PW18). Girdhari, who had also received injuries during the course of the incident, was not produced in the witness box. All the witnesses except Sujaram were confronted with their statements recorded by the police under Section 161, Cr.PC, and it was found that the names of the appellants did not find mention in their police statements although while making their statements before the trial Court all of them have deposed that they knew the appellants prior to the incident since they had been visiting the village concerned for last many years and further that they did disclose the names of the appellants while making their statements under Section 161, Cr.PC. The only witness in whose police statement the names of the appellants find place, is Soojaram (PW8). 7. The only witness in whose police statement the names of the appellants find place, is Soojaram (PW8). 7. Three points haven been raised by the learned counsel for the appellants; (1) that though Sujaram's Statement (Ex.P.3) is stated to have been recorded at about 4.30 p.m. on 22.8.87, the first information report (Ex.P.4) was recorded at the police station on the same day about 11.45 p.m., but the FIR was received by the learned Judicial Magistrate concerned as late as on 24.8.87 at 1.30 p.m. although the distance between the police state on Kotwali, Jhalawar and the Court of the Judicial Magistrate concerned is about 1 Km. and satisfactory explanation on this delay has not been given by the prosecution, (2) that, although according to the case of the prosecution, the names of the appellants were available to the prosecution on 22.8..87 itself, when Suja Ram's statement (Ex.P.3) was recorded by the Investigating Officer, but neither of the two appellants was arrested till 26.8.87, although they remained present with the police and at the police station from 22.8.87 alongwith their guns, which were also seized by the police only on 26.8.87; and (3) that, although the names of the appellants, according to the FIR, were known to the alleged eye-witnesses and the Investigating Officer while producing the appellants before the learned Judicial Magistrate concerned on 27.8.87 mentioned in the application for judicial remand that the investigation had been completed and the appellants be directed to keep themselves 'Bapardah' as their identification parade was to be arranged, and further that two applications were also moved by the prosecution : one on 21.9.87 and the other on 8.10.87 for arranging their test identification parade. The identification parade was arranged in jail on 14.10.87, when Girdhari, who was one of the injured, had in fact taken part in the parade and was unable to identify either of the two appellants. Thereafter other alleged eye-witnesses did not take part in the said test parade. According to the learned counsel for the appellants, if in fact the appellants were the real assailants and their names were known to the police on 22.8.87 itself, there was no reason as to why the FIR could not have been recorded immediately after the statement (Ex.P.3) Soojaram (PW8). This shows that the FIR was a post investigation document. 8. According to the learned counsel for the appellants, if in fact the appellants were the real assailants and their names were known to the police on 22.8.87 itself, there was no reason as to why the FIR could not have been recorded immediately after the statement (Ex.P.3) Soojaram (PW8). This shows that the FIR was a post investigation document. 8. It is also contended that when in fact the FIR was recorded at 11.45 p.m. on 22.8.87 there was no reason as to why it could not be sent to the learned Judicial Magistrate concerned immediately and the same was received by the learned Judicial Magistrate concerned only on 24.8.87 at 1:30 p.m. The learned counsel, thus, contends that the FIR is post-investigation document and was not recorded on 22.8.87 although it has been shown to have been recorded on that day. It has further been contended that if the names of the appellants were known to them and they were available to the police on 22.8.87, no plausible explanation is coming forward as to why the police did not arrest the appellants upto 26.8.87 and further that if their names were known, why the police was getting test-identification parade arranged right from the date when the appellants were produced before the learned Judicial Magistrate on 27.8.87. 9. The trial court has, in the impugned judgment, observed that since the names of the appellants were known, it was not necessary for the police to have arranged the test identification parade but, it appears that the learned trial Court lost sight of the fact that the test identification parade was infact arranged and in those proceedings, one of the injured persons, namely, Girdhari, had not identified any of the appellants. The circumstances, shown above, in regard to the arranging of the identification parade show that the prosecution, itself, was not sure about the persons who were involved in the incident, as accused persons. 10. Under Section 157, Cr.PC, when an information regarding commission of cognizable offence is received by the Officer-Incharge of the Police Station he has to record it in the Register of the FIR, and has to forthwith send a copy thereof to the Judicial Magistrate concerned and to proceed to the spot or he may direct one of his subordinates to proceed to the spot. A plain reading of the Section 157, Cr.PC makes it clear that the sending of the FIR and the proceeding to the spot are two simultaneous acts. The spirit of the section is that if the FIR is recorded on the basis of the statement recorded at a place other than police station, a copy of the FIR should be sent to the Magistrate while sending a copy thereof to the Investigating Officer at the spot. This provision has been made as a safeguard for the accused to ensure that the FIR is not recorded after investigation and the same does not become a post investigation document and the time of its recording can be ascertained from the time of its despatch to the Magistrate and the time of its receipt by him. 11. The learned Public Prosecutor, inspite of having taken sufficient time, has not been able to furnish any plausible explanation as to why the copy of the FIR was not sent to the Judicial Magistrate concerned immediately after the FIR was recorded and how the copy was received by the Judicial Magistrate concerned as late as on 24.8.87 at 1.30 p.m. specially when the police station was admittedly situated at a distance of 1 Km. from the Court. The learned Public Prosecutor has also not been able to explain as to why the appellants were detained in the police station without their arrest till 26.8.87 when they were available to the police and at the police station since 22.8.87 and what was the necessity of the test identification parade of the appellants when the names of the appellants were known to them. 12. All these unexplained circumstances of the case show that the investigation has not been fair and is tainted. The case of the prosecution is, thus, shrouded in suspicion and mystery. In our opinion the learned trial Court has not taken into consideration these material facts and committed an error in convicting the appellants. 13. It is the duty of the prosecution to prove the guilt of the accused persons beyond reasonable doubt and if any doubt is cast on the prosecution story, the benefit of doubt has to be given to the accused persons. 13. It is the duty of the prosecution to prove the guilt of the accused persons beyond reasonable doubt and if any doubt is cast on the prosecution story, the benefit of doubt has to be given to the accused persons. In view of the aforementioned, suspicious circumstances, which go to the root of the prosecution case, therefore, we feel that the conviction of the appellants cannot be upheld and they deserve to be acquitted. 14. Consequently, while accepting this appeal, we set aside the judgment of the conviction and order of sentence passed by the learned Additional Sessions Judge, Jhalawar, against the appellants (Surajmal & Amar Lal), and acquit them. They are in jail. Each one of them should be released forthwith, if not wanted in any other case. 15. The gun and the cartridges recovered from each one of the appellants should be returned to them alongwith licence of the appellant concerned. *******