MADAN, J. - (1.) THIS criminal appeal has been filed by the appellants challenging judgment dt. 14. 10. 99 of the learned trial court, whereby each of the appellants has been convicted for offence u/s. 302, IPC and sentenced to life imprisonment with a fine of Rs. 500/- (in default, further RI for 3 years ).
(2.) IT is the prosecution case that an FIR No. 347/98 was registered at PS Kotwali (Sawai Madhopur) upon information given by Babulal Gurjar on 30. 8. 98 to the effect that the village people had gone to the holy shrine of `kachida Mataji' temple situated in the Hill to worship and after obeisance some of them returned back but he (Babulal) alongwith Ramu & Harphool proceeded to return at 4 O' clock in the evening, then reached near Nalla ahead anicut at about 5 PM during which he has ahead, Harphool was in between, and as soon as they crossed and were inclining over nalla then they saw Budhi & Roop Singh alias Roopa Gurjar of village Bhadlav duly armed with lathies and soon they (Budhi & Roopa) reached near them and soon thereafter started inflicting blows on the person of Harphool. IT has been alleged in the report that Budhi caused injuries by lathi on the head of Harphool thereby he fell on the ground with blood oozing out from the head but despite Harphool having fallen down Roopsingh & Budhi continued causing injuries to him (Harphool) by infliction of lathies blows, and even when he tried to escape, the accused did not rebut. However, Harphool succumbed to the injuries then and there at the spot itself. IT has been stated therein that since Harphool died at the spot, they got afraid, so first they went to inform wife & son of Harphool in the village and thereupon came back to the spot wherefrom some people left for informing the police on telephone. Written report was given to SHO PS Sawai Madhopur who reached the spot on 30. 8. 98 at 9 PM and then it was sent to the police station through Hanuman Prasad Constable No. 493. Consequently, FIR under Crime No. 347/98 was registered for offences u/ss. 302 & 341/34 IPC. Site plan (Ex. P. 2) was prepared on 31. 8. 98. Blood smeared soil and controlled soil were taken from the spot vide seizure memo (Ex. P. 4) and then sealed at the spot on 30. 8. 98. Deadbody of Harphool was taken into custody at the spot by preparing memo (Ex. P. 5) on 30. 8. 98 at 9. 45 P. M. so as to get inquest and autopsy reports. After inquest report (Ex. P. 6) the dead body was handed over to the son of Harphool but after post mortem. During the process of inquest report, clothes from the body of deceased Harphool were seized vide seizure memo (Ex. P. 7) on 31. 8. 98 at 9. 30 A. M. and the Medical Jurist gave post mortem report (Ex. P. 9) after getting examination of body at mortuary of Govt. Hospital Sawai Madhopur on 31. 8. 98 at 8. 30 A. M. As per post mortem-report (Ex. P. 9) nine injuries were found on the body of deceased Harphool, which were opined to be ante-mortem in nature, out of which, injuries Nos. 6 to 8 were bruises on anterior aspect of left elbow, on back of left arm, and on upper part of back of left arm. Injury No. 9 was swelling and found on back of right hand but on dissection, fracture of proxyneal phalanix of index and middle finger of right hand was found. Rest of five injuries were lacerated wound. Injury Nos. 1 to 5 were found on right side of forehead (transversely placed), occipital region of scalp 1" above injury No. 2 on post armoular region of mastoid of scalp left side, right parietal region of scalp (obliquely transversely placed ). All these five injuries were bone deep. On dissection of scalp, the doctor who conducted post mortem examination of the deceased opined as under:- "haematoma present on occipital and right frontal region of scalp and after cleaning there were multiple fracture pieces of occipital bone is seen and depressed and integrated into brain matter. After opening the skull tear of dura membranes at occipital region and haematomma collected above and below dura membrane on occipital region and laceration of brain matter on occipitallobe of hemisphere. " However, injury Nos. 2 & 3 are to be treated as dangerous to life in ordinary course of life but blunt. " According to the doctor, as opined in the autopsy report all the injuries were caused by blunt weapon, and the cause of death of Harphool (deceased) was due to coma resulting from injury Nos. 2 & 3 which were found on occipital region of scalp. During investigation, the accused (Budhi) was arrested on 6. 9. 98 by arrest memo (Ex. P. 8 ). Accused Budhi got recovered from his possession a lathi on 8. 9. 98 which was seized vide seizure memo (Ex. P. 11) on his information given under Section 27 of the Evidence Act vide memo (Ex. P. 18 ). Similarly accused Roopa was arrested on 6. 9. 98 by memo (Ex. P. 3) and on his information given under Sec. 27 of the Evidence Act by memo (Ex. P. 16), he got recovered a lathi which was seized at his instance vide memo (Ex. P. 13 ). After usual investigation, the police filed its report and charge sheet against the accused appellants for offences under Sections 302, 341 read with Sec. 34 IPC, in the Court of CJM Sawai Madhopur which committed the case for trial to the Court of Sessions. However, the appellants were charged for offence u/s. 302 IPC to which they pleaded not guilty and claimed trial. The prosecution examined as many as fifteen witnesses in support of the charge. The appellants were examined u/s. 313 Cr. P. C. but did not examine any witness in defence. After hearing the parties, the learned trial Court by its impugned judgment convicted and sentenced each of the appellants as indicated above. Hence, this appeal.
(3.) I have heard the learned counsel for the parties and perused the evidence on record. First contention canvassed by Shri Suresh Sahni, learned counsel appearing on behalf of the accused appellants is that the prosecution has not placed its case as per genesis in its true perspective since according to him as per law, information which was transmitted first in time to the police telephonically should have been treated as FIR as has not been done in the present case. His further contention in this regard is that the original FIR was the one which was the message conveyed to the police by the informant telephonically and not the FIR (Ex. P1) which infact is the report given by informant at the spot. Second limb of his argument is that FIR (Exp1) is not the original one because Ramu (PW2) in his cross-examination unambiguously stated that the report given to the police was also thumb marked by him and the report lodged with the police which he stated in his examination in chief, is correct and also thumb marked by Babulal (PW1 ). It is the case on behalf of the appellants as contended by Shri Sahni that a bare perusal of the FIR (Ex. P. 1) would reveal completely and incontrovertibly that it (Ex. P. 1) did not carry any thumb impression of Babulal (PW 1 ). On the basis of these assertions, Shri Sahni vociferously contended that origin of the FIR being shrounded in dubious circumstances, its credibility does not inspire any confidence and it looses its sanctity this making the prosecution case improbable. To canvass his case, the learned counsel placed reliance upon the decision in this context in the matter of Thulia Kali vs. State of Tamilnadu (1), & Sunil Kumar vs. State of MP In Thulia Kali vs. State of Tamilnadu (supra) the knife alleged to have been used in stabbing the victim was found by the chemical examiner to be not stained with blood and it was not clear why the accused should have kept it on his bed where he had ample opportunity to throw away the knife in some lonely place. Further there was delay of more than 20 hours in lodging the FIR though the police station was only at a distance of two miles. Hence the Apex Court observed that the circumstance would raise considerable doubt regarding the veracity of the case and it is not safe to base conviction upon it. It is true, as expounded by the Apex Court that:- (1) FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroboration the oral evidence adduced at the trial and its significance can hardly be over estimated from the standpoint of the accused, (2) that the delay in lodging the FIR often results in embellishment which is a creature of after-thought and on account of delay in lodging of the report the accused not only gets benefit of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation, and (3) so it is essential that the delay in the lodging of the first information report should be satisfactorily explained, which is not the position in the instant case. Hence, it is distinguishable and not applicable to the present as it is not the controversy relied by the defence. ;