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2006 DIGILAW 2145 (RAJ)

Gurdayal Singh v. State of Rajasthan

2006-07-07

GOPAL KRISHAN VYAS

body2006
Judgment G.K. Vyas, J.-Challenging the Judgment dated 112.1987 passed by the learned Additional Sessions Judge, Raisinghnagar, the appellants have prayed for setting aside their conviction under Section 325, read with Section 34, IPC and sentence to suffer rigorous imprisonment for 7 years and pay fine of Rs. 1,000/-each and in default of payment of fine to further undergo rigorous imprisonment for one month. 2. Facts of the case indicate that upon the statement of one Kehar Singh recorded by the SHO., P.S. Anoopgarh an FIR was registered for offences under Sections 341, and 323, IPC Kehar Singh alleged in his statement that on 08.02.1985 while he was in his agricultural field which is in his mothers name, all of a sudden, water came flowing in the irrigation canal and he, therefore, sent his servant Mangilal to draw water to his water tank as his turn to draw water from the irrigation canal was in the early morning. He alleged that Mangilal went to open the channel to his water tank but the accused appellants, who came there, said that water will first go to the village water tank and cattle pond and, therefore, water was flowing towards that side. Mangilal returned and informed Kehar Singh that the accused appellants would not allow him to take water from the canal. It is stated that Kehar Singh then went to the field of Gurbachan Singh and then to the field of Gurdayal Singh where he saw that the appellants had already taken water to their fields. When he was returning to his field the appellants came there and asked him why he had come to their fields. Kehar Singh alleged that Gurdayal Singh hit a lathi blow on his person and the accused appellants then caught hold of him and beat him with slaps and fists. It is stated by Kehar Singh that Avtar Singh came there and intervened and, then the accused appellants went away. 3. During investigation, on 24.02.1985, Kehar Singh died and as such offence under Section 302, IPC was added. Upon challan having been filed accordingly, the case came to be tried by the learned Additional Sessions Judge, Raisinghnagar. At the trial, the prosecution examined 8 witnesses to prove its case viz., PW. 1 Krishna Kumari, PW. 2 Avtar Singh, PW. 3 Mangi Ram, PW. 4 Bhagwan Singh, PW. 5 Karnail Singh, ASI PW. 6 Dr. Upon challan having been filed accordingly, the case came to be tried by the learned Additional Sessions Judge, Raisinghnagar. At the trial, the prosecution examined 8 witnesses to prove its case viz., PW. 1 Krishna Kumari, PW. 2 Avtar Singh, PW. 3 Mangi Ram, PW. 4 Bhagwan Singh, PW. 5 Karnail Singh, ASI PW. 6 Dr. Prem Ratna, PW. 7 Dr. Rajendra Kumar Gupta and PW. 8 Lal Singh, SHO., Anoopgarh. Thereafter, statements of the appellants under Section 313, CrPC were recorded wherein the appellants specifically stated that Kehar Singh, injured himself fell down having slipped in the channel and due to enmity arising on account of drawing water in their respective channels they (the accused appellants) have been falsely implicated in the criminal case. The appellants also led evidence in defence and produced DW. 1 Ranjha Ram and DW. 2 Manguram. After hearing the arguments, while acquitting the accused appellants of charge for offence under Section 302, read with Section 34, IPC, the trial Court recorded finding of guilt against the appellants for offence under Section 325, read with Section 34, IPC and accordingly convicted the accused appellants. 4. Learned Counsel for the appellants vehemently contended that the Judgment of the trial Court is against law and facts involved in the case. He contended that the trial Court gravely erred in believing the testimony of PW. 1 Krishna Kumari, daughter of deceased informant Kehar Singh who had only few days before the incident came to her fathers village and stated in her examination that she sustained injuries at the hands of accused Sundar whereas her presence at the scence of occurrence is not at all borne out from the material on record. Learned Counsel for the appellants argued that the FIR was lodged upon the statement of deceased Kehar Singh and there is no mention in the FIR of PW.1 Smt. Krishna Kumari ever reaching at the place of the incident or about her receiving any injury at the hands of any accused. Learned Counsel for the appellants emphatically argued that the trial Court fell into error in believing the statement of Mst. Krishna Kumari as an eye-witness to the incident whereas her presence at the site is not established by evidence on record. 5. Learned Counsel for the appellants emphatically argued that the trial Court fell into error in believing the statement of Mst. Krishna Kumari as an eye-witness to the incident whereas her presence at the site is not established by evidence on record. 5. It is next contended by learned Counsel for the appellants that the trial Court committed grave error in punishing the appellants for offence under Section 325, IPC, read with Section 34, IPC. It is contended by learned Counsel for the appellants that in this case two independent witnesses viz., PW. 3 Mangiram and PW. 4 Bhagwan Singh did not corroborate the version set up by PW. 1 Krishna Kumari and PW. 2 Avtar Singh and the prosecution declared both PW. 3 Mangi Ram and PW. 4 Bhagwan Singh hostile. He contended that both Mst. Krishna Kumari, PW. 1 and Avtar Singh PW. 2 are close relatives of deceased Kehar Singh and, therefore, without independent corroboration, their testimony cannot be believed for convicting the appellants. He vehemently argued that deceased Kehar Singh upon whose statement the FIR was recorded, did not state anything about the presence of Mst. Krishna Kumari, PW. 1 at the place of occurrence. According to him there is no evidence upon which it can be said that the prosecution has proved the case beyond reasonable doubt. He contended that none of the witnesses has corroborated the prosecution case to bring the guilt to the hilt against the accused. The main emphasis is laid by learned Counsel for the appellants upon the doubtful presence of both PW. 1 Krishna Kumari and PW. 2 Avtar Singh who have been planted by the prosecution as eye-witnesses in the case. Adverting to the FIR, learned Counsel for the appellants pointed out that the conspicuous absence of mention of these witnesses in the FIR casts heavy shadow of doubt upon the testimony of these witnesses as eye-witnesses to the incident. He contended that the trial Court has totally failed to consider this aspect of the matter while relying upon the testimony of these witnesses. He further invited attention of the Court towards statement of PW. He contended that the trial Court has totally failed to consider this aspect of the matter while relying upon the testimony of these witnesses. He further invited attention of the Court towards statement of PW. 1 Krishna Kumari to urge that her testimony is entirely contrary to the allegations levelled by the deceased informant in the FIR and, therefore, the learned Court below has seriously erred in law in relying upon contradictory facts while arriving at the finding of guilt against the appellants. In her examination, PW. 1 Mst. Krishna Kumari categorically stated that accused Sundar was inflicting injuries with back-side of kasi and when she intervened he also hit her with kasi but this is not the version reported by the complainant in the FIR. 6. Raising legal ground, learned Counsel for the appellants argued that though the trial Court took into consideration the FIR as evidence of the prosecution since before the death of the injured no dying declaration was recorded but the same was not put to the accused for their statement under Section 313, CrPC and as such the said evidence cannot be read against the appellants. He contended that this defect in the trial goes to the root of the matter inasmuch as the said evidence viz., statement of deceased Kehar Singh upon which FIR was lodged cannot be sued against the appellants to hold them guilty. He argued that if this evidence is taken off from consideration there does not remain any evidence to prove the charge under Section 325, IPC read with Section 34, IPC against the appellants. 7. As per record of the case, FIR was registered on 08.02.1985 and the complainant injured was undergoing treatment. During investigation, the complainant died on 24.02.1985 but his dying declaration was not recorded. After his death, offence under Section 302, IPC was added. Since no statement of deceased Kehar Singh was recorded subsequent to the filing of the FIR dated 08.02.1985, the trial Court took into consideration the FIR as evidence of the prosecution. However, it is revealed from the record that the contents of the FIR, though considered by the trial Court as evidence of the deceased complainant Kehar Singh, were not put to the accused in their statements recorded under Section 313, CrPC. However, it is revealed from the record that the contents of the FIR, though considered by the trial Court as evidence of the deceased complainant Kehar Singh, were not put to the accused in their statements recorded under Section 313, CrPC. The purpose of the section is explicitly for enabling the accused personally to explain any circumstance appearing in the evidence against him and the Court shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case. Thus the purpose of asking questions by the Court under Section 313, CrPC is to offer opportunity to the accused to explain the incriminating circumstance against him and if such opportunity is not offered the incriminating piece of evidence available with the prosecution cannot be relied upon by the Court In this regard, learned Counsel for the appellants placed reliance upon Judgment s reported in Manjhi vs. State of Jharkhand, 2003 (2) SCC 401 and Subhash Chandra vs. State of Rajasthan, 2002 (1) SCC 702 . In the case on hand, if the Court considered it necessary in the circumstances to rely upon the contents of the FIR as evidence of the deceased informant then obviously the same should have been put to the accused while recording their statements under Section 313, CrPC. 8. Besides, once the FIR is read as evidence against the accused, the Court would further be under obligation to consider the question of veracity of the testimony of other witnesses vis-a-vis the FIR. In the instant case, the trial Court has found credibility in the evidence of PW. 1 Mst. Krishna Kumari which version runs incongruent with the contents of the FIR to a great extent and, therefore, it is hard to believe either of the two. In the circumstance, it is neither reasonable nor just to base conviction upon such evidence. 9. As per statement of PW. 1 Krishna Kumari, injuries were inflicted only by accused Sundar but PW. 2 Avtar Singh stated that three persons were armed with rifals. As per his statement, accused Sundar inflicted injury with kasi; but the medical evidence does not support his statement and there is no injury upon the person of Mst. Krishna Kumari of any kasi blow and only two contusions were observed. 2 Avtar Singh stated that three persons were armed with rifals. As per his statement, accused Sundar inflicted injury with kasi; but the medical evidence does not support his statement and there is no injury upon the person of Mst. Krishna Kumari of any kasi blow and only two contusions were observed. It may be observed that the offence is said to have been committed on 08.02.1985 and the injured died on 24.02.1985. In this period, statement under Section 164, CrPC ought to have been recorded but, as per the investigating officer, there was no information from the hospital that the condition of the deceased was serious, therefore, his statement was not recorded. But, in fact, this is not true in view of the statement of PW. 6 Dr. Prem Ratna who stated that he had given opinion about the seriousness of the injuries received by Kehar Singh and vide Exhibit P-8 information was given to the SHO. 10. It is lastly contended by learned Counsel for the appellants that in the statements recorded under Section 313, CrPC, it is specifically stated by the appellants that the deceased himself fell down having slipped in the channel and received injuries and because he did not get the water supply he was angry with them and this false case is registered against them in enmity. In support of their statements under Section 313, CrPC the appellants produced testimony of independent defence witnesses. 11. Per contra, learned Counsel for the State vehemently urged that the prosecution has proved its case beyond reasonable doubt and the trial Court reached the finding of guilt against the appellants upon appreciation of the entire evidence on record. He stressed that there are two eye-witnesses to the occurrence and there is no ground to disbelieve their testimony. 12. I have carefully considered the rival submissions and perused the record. 13. It is a fact on record that no statement of Kehar Singh was recorded after registering the FIR upon his statement though Kehar Singh died about a fortnight thereafter and thus the trial Court found it expedient to rely upon the FIR as evidence against the appellants and thereby ran into the risk of material contradictions in the oral evidence vis-a-vis the FIR. It is not in dispute that both the parties have agricultural fields and there are water channels to draw water from the canal for the irrigation of the fields. From the FIR as well as evidence on record it is clear that there was enmity in between the parties on the question of drawing water. The deceased informant had categorically stated having been beaten by the accused party with hand and fist blows. The only weapon used is a lathi at the hands of Gurdayal Singh as per the FIR vide which the informant stated that Gurdayal hit a lathi blow on the ribs of the deceased. However, PW . 1 Smt. Krishna Kumari revealed an entirely contradictory version having been adduced in testimony by the prosecution as an eye-witness. She assigned the injuries to Sunder with back of weapon kasi. She stated that three accused caught hold of her father and accused Sundar inflicted kasi blows. It must be borne in mind that FIR was registered the very day the incident allegedly occurred and, therefore, improvements upon the version occurring later on in the oral evidence led by the prosecution only lead to suspicions in the way of arriving at finding of guilt. The trial Court did not find the evidence on record sufficient to prove the charge under Section 302, read with Section 34, IPC and even the FIR was not registered for investigation into any offence under Section 307, IPC. On the statement of the deceased informant the police registered case for investigation of offences under Sections 341 and 323, read with Section 34, IPC. During the investigation, however, Kehar Singh died and thus offence under Section 302, IPC was added. At the trial, the prosecution also ran into the hostility of evidence of its witnesses Mangiram and Bhagwan Singh. The said eye-witnesses PW . 1 Mst. Krishna Kumari and PW . 2 Avtar Singh improved with material contradictions upon the FIR which has been used by the trial Court as evidence against the accused. There is no corroborative evidence to prove the case so narrated by deceased informant Kehar Singh in the FIR nor other evidence on record to prove the version of PW . 1 Mst. Krishna Kumari and PW . 2 Avtar Singh. There is no corroborative evidence to prove the case so narrated by deceased informant Kehar Singh in the FIR nor other evidence on record to prove the version of PW . 1 Mst. Krishna Kumari and PW . 2 Avtar Singh. Therefore, in the absence of independent corroborative evidence it is not save to convict the appellants on the conclusion that the prosecution has proved the case beyond reasonable doubt. Further, while relying upon the FIR as evidence of the prosecution the trial Court fell into vitiation of the trial by not putting the evidence of FIR to the accused at the time of recording their statements under Section 313, CrPC. In the totality of facts and circumstances of the case, upon appreciation of the evidence on record, in the instant case, it is unsafe conclusion to record finding to guilt against the accused. In criminal justice, for each drawback suffered by the prosecution at the trial commensurate advantage accrues to the accused and must not be lost sight of by the trial Court. Upon re-appreciation of the entire evidence on record, I do not find that the prosecution succeeded in proving the guilt beyond any reasonable doubt against the accused. 14. As a result, the appeal succeeds and is allowed. The Judgment impugned dated 112.1987 in Sessions Case No. 49/1985 passed by the Additional Sessions Judge, Raisinghnagar is quashed and consequently the order of conviction and sentence passed against the appellants is set aside. The appellants are on bail. Their bail bonds stand discharged.