V. S. DAVE, J. - (1.) THIS criminal appeal is directed against the judgment passed by learned Additional Sessions Judge No. 2, Bharatpur on 15. 05. 1990 whereby he convicted accused-appellant for offence under sec. 302 IPC and sentenced him to life imprisonment and a fine of Rs. 100/-and in default of payment of fine, he was ordered to undergo 7 days R. I.
(2.) BRIEF facts, giving rise to this appeal are that an FIR was lodged at Police Station Weir on 3-9-87 at 6. 00 p. m. by Ajmat Singh (P. W. l) wherein it was alleged, by him that in the evening of 1. 09. 1987 when he heard the noise of some quarrel coming from Mohar Singh's house he went there and saw that Bissa, Prabhati, Balram, Dharam Singh and Brijendra Singh were inflicting injuries on the person of Mohar Singh and his wife Bhagwant and one Bhagwat. Prabhati is alleged to have been armed with an iron shod, rest all with lathis. It was further mentioned that Prabhati inflicted a Sariya blow on the head of Bhagwati, who fell down, Bissa inflicted injury on Mohar Singh and Balram on Bhagwat. Dharam Singh and Brijendra Singh also caused injuries to these persons. It was further mentioned that the incident had been seen by Nathi, Had Singh and Damodar. The cause of incident was that Bhagwant was giving bath to her son and on throwing water, the dispute took place between the ladies. The incident is alleged to have taken place in a common chowk in the night. Immediately after incident, Bhagwant was taken to the hospital at Bharatpur where it is alleged that she succumbed to the injuries on the next day at 6-7 a. m. Her post-mortem was also conducted and the report has been lodged after he has returned to Weir. On receipt of this report, a case under Secs. 147 and 302 IPC was registered and investigation commenced. After investigation, a charge-sheet was submitted against four persons viz. , Bissa, Bal Ram, Dharam Singh and Prabhati. Prosecution examined 10 witnesses in support of its case. Accused persons denied the occurrence as alleged by the prosecution and stated that it was Ramdei, who was giving bath to the child on the roof and the water was flowing from the open chowk to which the ladies of the accused party objected on which there was an altercation and ladies from both the sides started fighting themselves followed by male folk but denied that the injury on the person of Bhagwant was inflicted by Prabhati. They examined five witnesses in support of their defence, out of which two are the injured ladies viz. Premvati and Sampati and the other three are the Doctors, who have proved the injuries on their person. The learned trial Judge, convicted and sentenced the accused-appellant as indicated above. He also convicted accused Bissa and Dharam Singh for offence under Sec. 323 IPC. He, however, acquitted accused Balram of all the offences. It is contended by the learned counsel for the appellant that findings arrived at by the learned trial Court, are contrary to the evidence and settled principles of criminal law. It is submitted that the investigation in the case has been biased against the accused from the very beginning in as much as even the Rojnamcha entry which might have been entered in Police Station, Bharatpur has been withheld. It is submitted that it is borne out from the prosecution's own case that the Medico Legal Jurist, Government Hospital, Bharatpur informed the police immediately after Mst. Bhagwant was brought to the hospital on the night intervening between 1st and 2nd Sept, 1987 and the police had also arrived at the hospital as is borne out from the inquest report prepared on the next date after the death of Mst. Bhagwant. It is also sub-mitted that blood stained clothes of Bhagwant\ and other incriminating evidence was also collected but no case had been brought on record before the Court. It is submitted that the FIR which has been taken down on 3rd Sept. , 1987 at Weir hit Sec. 162 Cr. P. C in as much as the investigation of the case had already started. It is further submitted that the Prosecution witnesses have suppressed the truth in as much as they have not explained the injuries which have been sustained by Premwati, Sampati and Prabhati. The submission of the learned counsel is that wife of Prabhati sustained two injuries and Sampati also sustained six injuries. But the prosecution witnesses have not only explained them but even denied the presence of these injuries when they are amply proved by the evidence. It is submitted that it is not only preponderance of probability that the accused has come with a case that the complainant party had taken law in their hands by beating the accused-persons but has proved it by cogent and reliable evidence and there is no reason to discard the statement of Premwati and Sampati given on oath when they have not been even confirmed with the prose-cution story. It is submitted that it is one of the known principles of criminal jurisprudence that when there are two parallel stories, one in favour of the accused must be accepted. In the instant case both the parties, it is submitted have come with the case that the incident took place because the water was being spraed in common chowk when the bath was being given to a child, according to the prosecution witness Bhagwati and according to the defence witness Ramdei. It is also admitted by both the parties that quarrel took place on the ground floor on the aforesaid cause which resulted in seuffle between the ladies on either side and followed by joining of the menfolk on both the sides. The main difference between the two stories is as to who caused injury on whom and in what manner. Thus, the whole story about and of the story on which the witnesses of either side have given contradictory version, is not worthy of reliance, Learned counsel for the State has submitted that an elaborate and detailed judgment has been given by the trial Court dealing with all the aspects of the case which does not call for the interference. He submits that the witnesses had the anxiety that the FIR though delayed but the delay is explained in the report by Hasmat when he stated that since the condition of injured Bhagwant was serious, who later on succumbed to the injuries and her funeral was to be done after post-mortem itself, the report could only be lodged after being free from all the rituals. It is submitted that the prosecution story is consistent from the very beginning and also finds corroboration from the defence version. It is submitted that accused Prabhati was medically examined after five days of the occurrence, which shows that he had taken it only as defence to show that he also sustained injuries in the same incident. It is submitted that no interference is called for in the instant case. We have given our thoughtful consideration to the rival contentions and have perused the entire record.
(3.) THIS case presents unusual features and we are not required to deal with the entire evidence in the case in as much as the case can be decided on the ground of gross latches on the part of the prosecution much less in investi-gating the entire case. It is an admitted case that the incident took place on the evening of the 1. 09. 1987 at a place which was 13 Km away from the police station. No Report was lodged till 6. 00 p. m. of the 3rd Sept, 1987 i. e. to say that there is a delay of 48 hours in lodging the report. This delay of 48 hours is souaht to be explained by the author of the FIR Hasmat (P. W. I.) on the ground that they had immediately taken Bhagwant and other injured to Hospitals for treatment at there was and since she died in the next morning, he could return on 3rd September and then lodged the report. This explanation in our opinion, cannot be accepted for the reason that police had been informed by the Doctor at Bharatpur and Hasmat had an opportunity to tell what had happened to Sahab Singh (P. W. 10), who had come to the hospital on 2. 09. 1987. Sahab Singh admittedly came to the hospital on 2. 09. took the charge of the dead body of Bhagwant and took it for post-mortem examination, Before taking it to the post-mortem examination, he prepared inquest report under Sec 174 Cr P. C where Hasmat is one of the witnesses. He had not named Prabhati as one of the witnesses. He had not named Prabhati as one of the accused who might have inflicted the injury on the person of Bhagwant to Sahab Singh. Sahab Singh, in his statement stated that he was neither fold nor considered it necessary to investigate into this aspect of the matter. Fven then it was on the 2. 09. 1987 if self that the post-mortem examination had been conducted and on the same day, the funeral took place yet no report had been lodged for yet another 24 hours and this 24 hours has not been explained in any manner whatsoever. Thus, there is an inordinate unexplained delay in lodging the FIR which is fatal to the prosecu-tion in this case. There is yet another angle for looking it that the FIR which has been lodged on 3rd Sept. , 1987 has been in consultation with one of the police officers who is relation of the complainant party viz. , Sohan Lal. This has been admitted by Hasmat in his cross-examination that the report Ex. P. 1 was written by Sohan Lal, who is cousion of Mohar Singh, in the hospital. Sohan Lal is resident of Basuva village and is serving in the police. According to him Sohan Lal came to the hospitai on 3. 09. 1987. The witness has further stated that he had gone back to the hospital on 3. 09. after doing the funeral on 2. 09. 1987. This statement of the witness clearly shows that there was deliberation before the report had been lodged. It is the prosecutions admitted case that the incident has taken place between deliberately the role of the ladies has been omitted in the FIR which further shows due deliberation in lodging of the report and supression of the material facts. It may also be mentioned here that the FIR which despite the fact that it was inordinately delayed yet was not forwarded to the Magistrate for another four days for reasons best known to the police officers. The report was sent to the Munsif and Judicial Magistrate First Class, Weir on 7. 09. 1987 at 1. 00 p. m. It cannot be lost sight of that Weir is not a very big town where the report had been lodged and the Munsif Magistrate's court is also located. Hence, it could not have taken few minutes in reaching to the Court but it has taken more than four days. This delay again remains unexplained. Thus, we are of the opinion that investigation of this case had not been fair. There is one more feature in this respect and i. e. that neither the message which has been received from the hospital has been placed on record nor any entry in the Rojnamcha has been placed on record which might have been received by the Incharge of the out-post Mathura Gate, Bharatpur before he proceeded to the Hospital. It was within the knowledge of Sahab Singh that Smt. Bhagwant had succumbed to the injuries, which she had sustained in some incident and that a cognizable offence has been committed, it was the bounden duty to have registered the case and then transfer the investigation to Weir. That document should have been the FIR in the case. We are totally in dark and the learned Public Prosecutor is unable to show as to whether any document in this respect was prepared at any police Station in Bharatpur on 2. 09. 1987 except that according to Sahab Singh's own statement, he had prepared the inquest report under Sec. 174 Cr. P. C. and had recovered Dhoti and Blouse vide Ex. P. 21 which document also he did not forward in original for reasons best known to Police Station Weir and produced in the Court for the first time when he was examined as P. W. 10. This conduct of ASI Sahab Singh, Incharge, Out-post, Mathura Gate, Bharatpur is highly irresponsible. An officer of the rank of ASI when was in knowledge that a murder has taken place and he was taking charge of the dead body when preparing the inquest report, ought to have first registered a case for a cognizable offence and as mentioned above, forwarded the entire documents to the concerned police Station. The Investigating Officer, Durga Prasad (P. W. 9), the then SHO Police Station, Weir has also not fairly investigated the case as he has not collected the documents from the police outpost, Weir and tried to find out as to whether any entry in the Rojnamcha has been made or not, he has also not produced before the Court the bed-head ticket or other relevant documents of the hospital to show what was the history given at time of admission of Bhagwant in to the hospital. He has admitted that a cross complaint had been filed by the accused persons in the Court against the complainant party which was sent to him for investigation but he states that he had given final report in that case. His investigation in the present case shows that the incident, as mentioned above, had taken place between the ladies, who are equally responsible for inflicting the injuries on the other women folk but they had been deliberately kept out and one Brijendra was let off while Balram placed in the same situation has been acquitted in the case. We are not satisfied the least in this case that the investigation is fair enough and therefore, we find it safe that the benefit of doubt should be extended to the accused. ;