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2017 DIGILAW 362 (RAJ)

Ummed Singh s/o Har Phool v. State of Rajasthan

2017-02-01

NAVIN SINHA, VIJAY KUMAR VYAS

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JUDGMENT : Mr. Navin Sinha, J. 1. The appellants stand convicted under Section 302/34 IPC to life imprisonment with fine and under Section 447 IPC to one month's rigorous imprisonment by the Sessions Judge, Jhunjhunu dated 14.5.1984 in Sessions Trial No.51/1983. 2. PW-1, Raghuveer, brother of the deceased Desram lodged a police report on 20.8.1983 that the previous night his brother after dinner had left for the fields to protect the crops. His younger brother PW-2, Mahendra Singh while returning home about 10:00 pm heard commotion near the fields and the saw the two Appellants running away towards the western side. The witness and his brother returned to the fields and saw the deceased lying in the fields with head injuries. The Appellants had killed his brother because of a land dispute. Formal FIR Exhibit-P/1 was registered on the basis of the same. 3. The postmortem of the deceased Exhibit-P/13 was conducted by PW-5, Dr. Mahaveer Singh on 20.8.1983 who found a lacerated wound 9”x2” on the right side of head extending from frontal region to Occipital region with brain matter and bone pieces coming out. Another lacerated wound was found on right cheek between lips and mandible. Three incised wounds were found bone deep on right cheek 1½” 1½”, another incised wound was found 1½ “ ½” upto brain just above right ear and another incised wound 3”x ¾” upto bone deep on right mandible region. A punctured wound was found near the left ear. Death was opined due to head injury. 4. Learned Counsel for the Appellants submitted that there is no eyewitness to the assault. The FIR is based on hearsay. The Appellants have been made accused on basis of suspicion because of the land dispute. There are material contradictions between the police statement and Court deposition of PW-2. The witness was not speaking the truth and was therefore not reliable. It will not be safe in the facts of the case to uphold conviction on his solitary testimony. There is much variation in motive also as testified by PW-1, Raghuveer and PW-2, Mahendra Singh. Recovery under Section 27 of the Evidence Act, 1872 may be corroborative material but cannot be conclusive evidence for conviction. The lathis, Exhibit P/9 and Exhibit-P/10 are alleged to have been recovered from the Appellants on 30.8.1983 and then kept in the Malkhana but sent for forensic report much later on 20.9.1983. Recovery under Section 27 of the Evidence Act, 1872 may be corroborative material but cannot be conclusive evidence for conviction. The lathis, Exhibit P/9 and Exhibit-P/10 are alleged to have been recovered from the Appellants on 30.8.1983 and then kept in the Malkhana but sent for forensic report much later on 20.9.1983. There is no explanation for the delay which makes it suspect. The FSL report Exhibit-P/23 does not contain serologist report with regard to the blood group of the deceased and that found on the lathis which is important evidence in the facts and circumstances of the present case. The Knife Exhibit-P/8 allegedly recovered from Appellant Ummed Singh did not have any blood stains on it and was never sent for forensic examination. The conviction is therefore not sustainable and deserves to be set aside. 5. Counsel for the State submitted that the witnesses were known to the accused being residents of the same village. There was a land dispute between them. PW-2, Mahendra Singh has deposed that it was a moon lit night and that he recognised the Appellants in the light of the same. This part of his evidence cannot be rejected considering that they are rural folk. The contradictions in the police statement and Court deposition of PW-2, Mahendra Singh are trivial and not material so as to discredit the witness. In the facts of the case, the absence of a serologist report is not relevant so long as human blood has been found on the lathis. The seizure witnesses PW-3, Ghadsi Ram and PW-6, Shubh Ram have acknowledged their signatures on the seizure memo. 6. We have considered the submissions on behalf of the parties and perused the materials and evidence on record. 7. PW-1, Raghuveer who lodged the police report is not an eye witness but a hearsay witness. He was sleeping at home and was woken up by PW-2, Mahendra Singh after the latter reached home and the two returned to the place of occurrence. While the former states that PW-2, Mahendra Singh was returning home at about 10:00 pm when he saw the Appellants running away, the latter deposed that he was returning at about 9:00 pm. PW-1, Raghuveer did not mention in his police report that PW-2, Mahendra Singh had told him of his having seen the Appellants assaulting the deceased. While the former states that PW-2, Mahendra Singh was returning home at about 10:00 pm when he saw the Appellants running away, the latter deposed that he was returning at about 9:00 pm. PW-1, Raghuveer did not mention in his police report that PW-2, Mahendra Singh had told him of his having seen the Appellants assaulting the deceased. The fact that the it may have been a moon lit night is not relevant in absence of anyone having witnessed the assault. 8. PW-1, Raghuveer deposed that they had purchased lands from Appellant Agar Singh who wanted them back and that there was no dispute with Appellant Ummed Singh. But PW-2, Mahendra Singh deposed that the Appellants wanted to purchase their lands for which the deceased was not willing. In his examination-in-chief he deposed that there had been no compromise with the Appellants but in cross examination he conceded that compromise had taken place six months ago and that the lands were theirs and not of Appellant Agar Singh. There is material contradiction between these two witnesses in so far as motive is concerned. PW-2, Mahendra Singh further does not appear to be a reliable witness. It is difficult to accept that if compromise had been arrived at six months earlier motive still existed to commit the offence at this belated stage. 9. There are further material contradictions in the police statement and Court deposition of PW-2, Mahendra Singh. In his police statement recorded on 20.08.1983 itself he said that he heard noise near the fields and saw the Appellants running towards the western side. This was in consonance with the FIR lodged by PW-1, Raghuveer on information from him. But in his Court deposition the witness stated that he saw the Appellants assaulting the deceased and running away after they had killed him. Contrary to his police statement he now deposed in Court that the Appellants had lathis in their hands. He claimed to have told the police having witnessed the assault from four dangs which is less than a furlong but there was no such recital in his police statement. The witness now claimed that the dispute was with regard to a watch. He claimed to have told the police having witnessed the assault from four dangs which is less than a furlong but there was no such recital in his police statement. The witness now claimed that the dispute was with regard to a watch. The Investigating Officer, PW-7, Mahendra Singh in cross examination deposed having recorded the statement of PW-2, Mahendra Singh exactly as stated by the latter reiterating that the witness had never told him that he had witnessed the assault on the deceased by the Appellants. 10. Any recovery under Section 27 of the Indian Evidence Act, 1872 is only corroborative material and cannot be substantive material for conviction by itself. Exhibit-P/8, the knife seized from Appellant Ummed Singh contained no blood on it and is therefore inconsequential. That leaves the recovery of lathis Exhibit-P/9 and 10 from the Appellants stated to have blood stains on it. The recovery was made on 30.8.1983 and the lathis kept in the Malkhana. It was sent to the FSL on 20.9.1983. There is no explanation forthcoming for this long and inordinate delay leaving all possibilities open. Being corroborative material it will become irrelevant and it will not be safe to place reliance on it for conviction in the facts of the case in absence of a serologist report that the blood group of the deceased matched with that found on the lathis. The fact that human blood may have been found on them cannot be considered sufficient material for conviction in the facts of the case. 11. Conviction can undoubtedly be based on the evidence of a solitary witness provided it is reliable convincing and inspires confidence in the Court. It is the quality of the evidence and not the quantity of witnesses which is important. PW-2, Mahendra Singh is a chance witness. There are material contradictions and embellishments in his evidence. In (1974) 3 SCC 397 (Harchand Singh v. State of Haryana) regarding conviction on a solitary witness it was observed as follows :- “12......the Court can base the conviction of the accused on a charge of murder upon the testimony of a single witness if the same was found to be convincing and reliable. There can, in our opinion, be no dispute with the above proposition, but that proposition can be of no avail in the present case. There can, in our opinion, be no dispute with the above proposition, but that proposition can be of no avail in the present case. As already mentioned earlier, the prosecution evidence itself creates doubt about the veracity of the testimony of Ram Asra, upon which testimony reliance is now sought to be placed by Mr Marwah. Had the testimony of Ram Asra been of a convincing character and the prosecution evidence had not itself created doubt regarding the correctness of his testimony, this Court might have sustained the conviction of appellants upon the testimony of Ram Asra. As the things are, prosecution itself has led evidence to show that the testimony of Ram Asra is not reliable.” 12. In the nature of evidence led by the prosecution as discussed we do not consider PW-2, Mahendra Singh the solitary witness wholly reliable so as to confirm the conviction of the Appellants. Their conviction is set aside and they are acquitted. The Appellants are directed to execute bail bonds of the value of Rs.20,000/- with two sureties of the like amount within two months as required under Section 437A Cr.P.C. The appeal is allowed.