- (1.) G. P. Mathur, J. This appeal has been preferred from Jail by Prem Singh against the judgment and order dated 20-4-1988 of Sessions Judge, Tehri Garawal in S. T. No. 28 of 1987 whereby he has been convicted under Section 302, IPC and has been sentenced to imprisonment for life.
(2.) A written first information report was lodged at 9. 30 a. m. on 11-7-1987 at P. S. Narendra Nagar by PW 5 Darshan Lal. It was mentioned in the F. I. R. that on the previous day i. e. on 10-7-1987 at about 6. 30 p. m. he (Darshan Lal) was going towards his house from the side of PPCL, when he heard the shouts being raised by some person on the way from Lalpul to village Setakband. He rushed towards the side and saw that a man, who belonged towards the side of Lawrakha, was assaulting his grand-father Chet Ram with a stone. The assailant, after seeing Dershan Lal approaching, ran away towards Lawrakha in the forest. He chased the assailant but could not succeed in apprehending him. Thereafter, the complainant came near his grand-father who was bleeding and was unconscious and took him to Dehra Dun Hospital for treatment. The Doctor at Dehradun found that Chet Ram was already dead. Since no conveyance was available in the night, the FIR was lodged in the morning. Pw 8, Vijai Pal Singh, Station Officer of P. S. Narendra Nagar received the papers of the case and commenced investigation. He arrested the appellant on 12-7-1987 and after completing the investigation submitted charge-sheet on 7-8-1987. The learned Magistrate committed the appellant to the court of sessions to face trial. The appellant was charged under Section 302 IPC, by the learned Sessions Judge to which he pleaded not guilty. The prosecution in support of its case examined in all eight witnesses including two eye-witnesses. The appellant did not examine any witness in defence. In his statement under Section 313, Cr. P. C. the appellant denied the prosecution case and stated that he did not know as to who assaulted the deceased Chet Ram. He further stated that he had given statement Ex. Ka-7 before the Special Judicial Magistrate, Narendra Nagar on 24-7-1987 at the instance of S. I. Police. The Sub-Inspector had told him that in case he confessed the crime, he would get him acquitted. In his statement in court PW 5 Darshan Lal stated that he was returning to his house after finishing duty 7. 30 p. m. on 10-7-1987. As soon as he reached Lalpul, he heard some shouts from the way going to Setakband. He rushed to that side and saw that the appellant Prem Singh was assaulting his grand-father by stones. The assailant then ran away. He chased the assailant, meanwhile his uncle Amar Singh enquired as to what had happened and then he told him that Prem Singh had assaulted his grand-father with stone. Both of them then ran behind the assailant, but he managed to make good his escape. Thereafter, both he and his uncle came to the village and narrated the incident and then came to the spot. His grand-father was taken to the hospital where the Doctor declared him dead. He stayed in the hospital in the night and came to his house next morning. From there he again came to the hospital and dictated the FIR to his sister Km. Darshini, which was handed over at the police out-post. In his cross- examination, he has stated that had not seen his uncle Amar Singh prior to the hearing of the shouts being raised by the deceased. The accused had assaulted the deceased with two or three stones. He further stated that the village of the accused is Lawrakha and that he knew him for the last 5/7 years. He further admitted that he did not enquire the name of the accused from Amar Singh. It may be noticed that though the FIR was lodged next day at 9. 30 a. m. but the name of the assailant was not mentioned in the same. On the contrary it has been categorically mentioned in the FIR that the name of the person who had assaulted the deceased was not known to him though he had seen him several times. The prosecution did not hold any Test Identification Parade of the accused Prem Singh. Since the name of the accused was not mentioned in the FIR, it was absolutely necessary for the prosecution to have held a Test Identification Parade for his arrest. In absence of any Test Identification Parade, the statement of this witness in court, wherein he has stated that the accused, Prem Singh, was assaulting his grand- father cannot be accepted. It is not the case where the FIR of the incident had been lodged soon after the incident in a hurry. On the contrary, the FIR of the incident which took place at 6. 30 p. m. has been lodged after 15 hours at 9. 30 a. m. on the follow ing morning. The complainant had all the time to ascertain the name of the assailant yet by the time the FIR was lodged his name had not been found out. In these circumstances, the statement of PW 5 Darshan Lal as given in court wherein he had straightway stated that accused Prem Singh had assaulted his grand-father cannot be accepted.
(3.) THE only other eye-witness examined by the prosecution is PW 1 Amar Singh. He has stated that at 6. 30 p. m. on 10-7-1987 he was going to Lalpul from his house when he heard the sound of shouting. He saw that accused Prem Singh was running away and Darshan Lal was chasing him. He then enquired from Darshan Lal who told him that Prem Singh was running away after assaulting his grand-father. THEreafter both of them chased the accused, but could not apprehend him. THEn they returned to the spot and carried Chet Ram to the Hospital with the help of co villagers. In cross-examination, he has stated that he had seen Chet Ram from a distance of 50/60 paces. THEy had reached Dehradun Hospital at about 10 p. m. and after the Doctor declared Chet Ram dead, they stayed there in the night. Next morning, he along with Darshan Lal came to the police out-post. PW 1 Darshan Lal was dictating and the Head Constable was writing the FIR. He has further stated that he knew the accused since his childhood. Darshan Lal had not enquired the name of the assailant as the same was known to him. He had seen Prem Singh running away but had not seen actually causing injuries. He denied that he was giving false statement on account of his relationship. THE statement of this witness shows that he had not seen the accused assaulting the deceased Chet Ram but had only seen him running a away. THE name of this witness is not mentioned in the FIR, in case the ver sion given by him is correct, then he was in the company of the first informant PW 5 Darshan Lal right from the beginning and remained with him in the night in the Hospital and he accompanied him to police out-post, he claims to have known the accused since his childhood. In such circumstances this witness was bound to disclose the name of the accused to the first infor mant Darshan Lal. If Darshan Lal know the accused from the face and did not know his name as narrated by him in the FIR, he was bound to have enquired the same from Amar Singh, Amar Singh having remained through out in his company, the name of the accused would have been mentioned in the F. I. R. This shows that the version given by PW 1 Amar Singh is not correct and he had neither seen the incident nor he accompanied the first informant to the Hospital. It may also be mentioned here that a written FIR was lodged by Darshan Lal at the Police out-post but he has stated that Darshan Lal was dictating and the Head Constable was recording the same. For all these reasons, we are of the opinion that the statement of PW 1 Amar Singh is not a truthful version and cannot be accepted. Pw 2 Km. Darshini is the sister of the informent and she has stated that she scribed the FIR as dictated by Darshan Lal in the hospital on 11-7-1987. She has admitted in her examination-in-chief itself that she had not seen the occurrence and the same had been seen by Darshan Lal on whose dictation she wrote the FIR. Therefore, her testimony is of a formal nature and does not implicate the appellant. Pw 3 Om Prakash, S. I. , P. S. Kotwali has proved the inquest report and other documents prepared by him. Pw 4 Ramesh Chandra, Constable, has stated that he took the body of the deceased for post- mortem examination.;