BELA M.TRIVEDI - (1.) BOTH these appeals arise out of the same judgment and order dated 30th April, 2007 passed by the learned Addl. District & Sessions Judge (Fast Track) No. 3, Jhunjhunu (hereinafter referred to as "the trial court") in Sessions case No. 29/07, whereby the trial court convicted the accused Ravindra Singh @ Dholiya for the offence under Section 302 of IPC and sentenced him to undergo life imprisonment and also to pay the fine of Rs. 2,000/ -, and acquitted the said accused from the charges levelled against him for the offence under Sections 147,148 and 149 of IPC. The trial court also acquitted the accused Jasveer Singh and Prabhu Singh from the charges levelled against them for the offences under Sections 147, 148 and 302 read with Section 149 of IPC. It appears that the complainant Bhawani Singh had also preferred the DB Cr. Revision Petition being No. 959/07 against the said judgment of the trial court acquitting the said two accused, however, the said revision petition came to be dismissed by this court as per the order dated 3.2.2011, granting the complainant liberty to assist the learned Public Prosecutor in the Cr. Appeal No. 28/2010 filed by the State. Accordingly, the Registry was directed to show the name of the learned advocate Mr. V.S. Yadav as the counsel for the complainant in the said appeal.
(2.) THE short facts giving rise to the present appeals are that the complainant Bhawani Singh submitted a report to the SHO, P.S. Buhana, District Jhunjhunu on 5.7.02 at about 9.00 P.M., on the basis of which an FIR being No. 176/02 came to be registered at the said police station at about 10.00 P.M. against the four accused i.e. Prabhu Singh S/o Ganga Singh, Ravindra Singh @ Dholiya, Kapindra Singh both sons of Prabhu Singh, Jasveer Singh S/o Jaswant Singh and two others for the offences under Sections 147, 149 and 302 of IPC. It was alleged by the complainant in his complaint interalia that on 5.7.02 at about 8.15 PM, when he and his brother were at the PCO, one Yogesh Singh S/o Narpal Singh came and told him that his father was badly beaten in the field of Narpal Singh S/o Bhur Singh some time back ; that complainant alongwith Kushal Singh S/o Ram Singh and Yogesh Singh S/o Narpal Singh went to the field of Narpal Singh and he saw that his father was lying there in a very serious condition ; that, therefore, he sent Kushal Singh to the village for getting some vehicle and sent Yogesh Singh to get the tractor ; that thereafter his father asked him to straighten his leg, which he did ; that when he asked his father about the names of persons who had beaten him, his father told the names of Prabhu Singh S/o Ganga Singh, Ravindra Singh @ Dholiya, Kapindra Singh both sons of Prabhu Singh and Jasveer Singh S/o Jaswant Singh and two other persons ; that within few minutes thereafter his voice stopped and, therefore, he rushed to the house of Krishanpal Singh, from where he gave information to the police station. After the registration of the FIR on the basis of the said complainant, the Investigating Officer carried out the investigation and after collecting sufficient evidence against the accused Ravindra Singh and Jasveer Singh, filed charge -sheet before the court of Magistrate, Khetri for the offence under Section 147, 148, 149 and 302 of IPC, whereas kept the investigation against the accused Prabhu Singh and Kapindra Singh pending under Section 173(8) of Cr.P.C. Subsequently, the charge -sheet was filed against the accused Prabhu Singh on 4.6.03 and against Kapindra Singh on 3.3.04. The trial court framed the charge against all the four accused for the offences under Section 147, 148 and 302 read with Section 149 of IPC, however, subsequently as per the order passed by the High Court, Jaipur Bench, the trial of the accused Kapindra was separated on 4.4.06 and he was sent to the Juvenile Court for trial. Accordingly, the trial was proceeded against the remaining three accused. i.e. Ravindra Singh @ Dholiya, Jasveer Singh and Prabhu Singh. The prosecution led oral evidence by examining 20 witnesses and also produced the documentary evidence in support of its case. The trial court after appreciating the evidence on record and hearing learned advocates for the parties passed the judgment and order convicting the accused Ravindra @ Dholiya, as acquitting the accused Jasveer Singh and Prabhu Singh as stated herein above. Being aggrieved by the said judgment and order of the trial court, the accused Ravindra Singh has preferred DB Cr. Appeal No. 1051/07 and the State has preferred DB Cr. Appeal No. 28/10. It was sought to be submitted by learned advocate Mr. A.K. Gupta for the accused -appellant that the entire case hinged upon the circumstantial evidence inasmuch as there was no eye -witness to the occurrence of the alleged incident and that the trial court has convicted the accused Ravindra Singh @ Dholiya mis -appreciating the evidence on record, and merely on the basis of surmises and conjectures. Relying upon the judgment of Hon'ble Supreme Court in the case of Chandmal and another Vs. State of Rajasthan (AIR 1976 SC 917) Mr. Gupta submitted that the prosecution has miserably failed to prove the entire chain of circumstances by leading cogent evidence, unerringly pointing towards the guilt of the accused. Mr. Gupta further submitted that as per the settled legal position, the oral dying declaration is a very weak piece of evidence and the courts should be loath in relying upon such evidence. In the instant case, runs the submission of Mr. Gupta, the so -called oral dying declaration was made by the deceased Amrit Singh before his son Bhawani Singh, only few minutes before his death and that looking to the injuries sustained by the said Amrit Singh, it was not believable that he would have made such dying declaration giving the names of the four accused. He also submitted that even the trial court has not fully relied upon the said oral dying declaration of the deceased, as the trial court has acquitted the two accused Jasveer Singh and Prabhu Singh, though their names were allegedly given by the deceased alongwith the name of Ravindra Singh. Mr. Gupta has relied upon the judgment of Hon'ble Supreme Court in the case of Mohar Singh Vs. State of Rajasthan & Ors. (AIR 1998 SC 2912) in support of his submission in that regard. Relying on the judgment of Apex Court in the case of Niranjan Panja Vs. State of West Bengal ((2010) 6 SCC 525) Mr. Gupta submitted that the motive is an important circumstance in the case based on the circumstantial evidence, which the prosecution has failed to prove in the instant case. Mr. Gupta taking the court to the depositions of the witnesses recorded before the trial court submitted that the witnesses had made improvements in their statements before the court, which were not found in their statements before the police, which had resulted into contradictions and omissions in their respective testimonies. According to Mr. Gupta, P.W. 15 Bhawani Singh, the complainant also had made improvements in his testimony before the court, inasmuch as he did not name any of the accused while giving telephonic information to the police as per Ex. P.21 -A and that number of contradictions were found in his evidence before the court and statements before the police. Placing heavy reliance on the judgment of the Apex Court in the case of Sunil Kumar & Ors. Vs. State of Madhya Pradesh (AIR 1997, SC, 940), and in case of Superintendent of Police, CBI and Ors. Vs. Tapan Kr. Singh (AIR 2003 SC, 4140), Mr. Gupta submitted that the document at Ex. P.21 -A should have been treated as FIR and the report Ex. P.9 of the complainant should be treated as his statement under Section 161 of Cr.P.C. As regards the recovery of article "saria" (iron pipe), Mr. Gupta submitted that the recovery of said article allegedly made at the instance of the accused was doubtful in view of the entry made in the recovery memo at Malkhana Register Ex. P.25 -A and Recovery Memo Ex. P.12. He also submitted that though some blood stains were allegedly found on the said iron pipe, there is no evidence to show that the articles recovered from the scene of offence as well as recovered from the residence of the accused remained in the sealed condition in the police station and were deposited in FSL in sealed condition. According to him, it was the duty of the prosecution to show the said article iron pipe to the Dr. Ashok Mahawar, who has been examined as P.W. 4 in order to establish that the injuries seen on the dead -body of the deceased were possible with such weapon. In this regard Mr. Gupta has relied upon the judgment of this Court in the case of Durga Lal Vs. The State (1987 (12) RCC, 386) and judgment of Apex Court in the case of Mohd. Aman & Anr. Vs. State of Rajasthan (AIR 1997, SC, 2960).
(3.) MR. Gupta has lastly relied upon the judgment of Hon'ble Supreme Court in the case of Prabhu Babaji Navle Vs. State of Bombay (AIR 1956 SC, 51), to submit that it is the duty of the chemical examiner to indicate the number of blood stains found by him on each of the exhibits and the extent of each stain, unless they are too minute or too numerous to describe in detail. According to MR. Gupta the chemical examiner while giving report at Ex. P.31 had failed to mention the number of blood stains and also the extent of each stain and, therefore, the said report could not be believed to convict the accused Ravindra Singh. @ Dholiya The learned Public Prosecutor Mr. Sanjay Kumar Mahla with learned advocate Mr. V.S. Yadav for the complainant, on the other hand supporting the judgment of the trial court convicting the accused Ravindra Singh submitted that the trial court has rightly appreciated the evidence against the said accused, which does not call for any interference by this court. The learned counsel submitted that the incident had occurred around 7.30 to 8.00 P.M. on 5.7.02, the complainant came to know about the said incident at about 8.15 P.M. and he immediately reached to the scene of offence, which was the field of Narpal Singh. According to them, when the complainant Bhawani Singh asked his father Amrit Singh who was severely injured about the names of the persons who had beaten him his father told the names of the accused. The complainant immediately thereafter rushed to the house of Krishanpal Singh for giving information to the police station on telephone, and subsequently he gave written report as per Ex. P.9. The learned counsel submitted that there was no delay either in informing the police telephonically or in giving the written report, in which the complainant had mentioned about the dying declaration made by his father giving names of all the four accused, and that there is no reason not to believe the said oral dying declaration made by the deceased before his son. Relying upon the judgment of Hon'ble Supreme Court in the case of Animireddy Venkata Ramana & Ors. Vs. Public Prosecutor, High Court of Andhra Pradesh ((2008) 5 SCC 368), the learned P.P. submitted that when the information is received by the Officer Incharge of Police Station, he is expected to reach to the place of occurrence as early as possible and it is not necessary for him towait till the registration of the FIR and that the information mentioned in the general diary could not be treated as an FIR. The learned counsels have also relied upon the judgments of this court in case of Vishnu Dutta Soni Vs. State of Rajasthan (2006 (1) WLC (Raj.) 780 and in case of Kailash Kumar @ Kalji & Ors. Vs. State of Rajasthan (2004 (1) WLC (Raj.) 604) in this regard. Learned counsel for the State also relied upon the judgment of Hon'ble Supreme Court in the case of Sucha Singh & Anr. Vs. State of Punjab (2003 (2) WLC (SC) Cr., 285) to submit that normal discrepancies in the evidence of witnesses would not corrode the credibility of the case of the prosecution, as normal errors of memory of witnesses are bound to occur due to lapse of time or due to mental disposition, such as shock and horror at the time of occurrence. The learned counsel also submitted that the trial court had materially erred in law in discarding the evidence of P.W. 7 Jagdish treating him as a chance witness, on the ground that the said witness did not take any action to rescue the deceased, though he had given sufficient explanation in that regard. The learned counsel has relied upon the observations made by the Supreme Court in the case of Sucha Singh (supra), in which it has been observed that when there is an instinct of self preservation, the inaction of the witnesses in not coming to the rescue of the deceased cannot be a ground for discarding his evidence. The learned counsel for the State also relied upon the judgment of Hon'ble Supreme Court in the case of State of U.P. Vs. Ram Sewak & Ors. ((2003) 2 SCC, 161) to submit that the oral dying declaration of the deceased before his son was supported by the other corroborating and oral evidence, and therefore could not be discarded. He further submitted that the recovery of article "saria" made from the house of the accused at his instance provided a very vital link to connect the accused with the alleged crime, as the accused knew about the place where he had hidden the said incriminating article. He also submitted that the said article "saria" having blood stains thereon was sent to the FSL for examination and as per the report of the FSL Ex. P.31, the blood group of the deceased matched with the blood stains found on the said article. Relying upon the evidence of P.W.16 the learned counsel submitted that the articles were received and deposited in the sealed condition in the FSL and there was no possibility of tampering with the said article. According to him merely because number of blood stains and the extent of stains were not mentioned in the report of FSL, the said evidence could not be discarded, more particularly when it was sufficiently corroborated by the other evidence adduced by the prosecution. Lastly learned counsel for the State submitted that though the trial court had rightly convicted the accused Ravinder Singh, the trial court had committed error of law in mis -appreciating the evidence while acquitting the other two accused Jasveer Singh and Prabhu Singh. ;