- (1.) This DB Cr. Appeal under Section 374 Cr.P.C., has been filed against the judgment and order dated 21.8.2003 passed by Additional Sessions Judge (Fast Track), No.2, Bharatpur in Sessions Case No. 8/2003 whereby the present appellants have been convicted and sentenced as under:- Appellant Ram Kishan: under Section 302 IPC: to undergo life imprisonment and to pay a fine of Rs. 1000/- in default of payment of fine to further undergo simple imprisonment for six months. Under Section 3/25 of the Arms Act:- to undergo rigorous imprisonment for one year and to pay fine of Rs. 1000/- and in default thereof to further undergo simple imprisonment for six months. Appellant Ram Singh: under Section 302/109 IPC: to undergo life imprisonment and to pay a fine of Rs. 1,000/- in default of payment of fine to further undergo simple imprisonment for six months.
(2.) The brief facts giving rise to this appeal are that Ranveer Singh (PW/1) submitted a written report (Ex.P/1) on 3.12.2002 at Police Station Kumher Distt. Bharatpur on the basis of which FIR (Ex.P/2) was registered against the accused appellants on 3.12.2002 at 6.30 PM. The contentions in the FIR were that on the same day in the morning at about 9.00 AM there was some quarrel in between the son of Shyamveer (son of nephew of the complainant) and the children of accused appellant Ramkishan. When Kashmira, wife of present complainant went to make complaint to Ramkishan then he said that he will beat her son in the same manner and will also kill her husband. On the same day at about 5.30 P.M. when Amar Singh, deceased was going to his house from Kumher and as soon as he reached near the house of Foran Singh, PW/7, accused appellants Ram Singh and Ram Kishan came there. Ram Kishan was having a gun and barrel of cartridges and Ram Singh was carrying a lathi. It was also mentioned that Ram Singh told Ram Kishan to kill Amar Singh and Ram Kishan with an intention to kill Amar Singh opened three fires which hit Amar Singh and he sustained severe injuries, felt down on the ground. Witnesses Veer Pal @ Veero, Fateh Singh, Niranjan Singh, Jagdish and other villagers came there and he was shifted to the hospital where he was declared dead. Case was registered and after investigation, charge-sheet has been filed against the appellant Ram Kishan for the offence under Section 302 IPC and 3/25 of the Arms Act and against Ram Singh for offence under Section 302/109 IPC. The case was committed to the Sessions Judge and it was transferred to Additional Sessions Judge (Fast Track) No.2, Bharatpur. The accused appellant Ram Kishan has been charged under Section 302 IPC and 3/25 of the Arms Act and Ram Singh for offence under Section 302/109 IPC. To prove the case against the present appellants, prosecution has examined PW/1 Ranveer Singh, PW/2 Prem Singh, PW/3 Shyamveer, PW/4 Fateh Singh, PW/5 Dharamveer Singh, PW/6 Jagdish, PW/7 Foran Singh, PW/8 Lokesh, PW/9 Hemant, PW/10 Vishnu Prasad, PW/11 Man Singh, PW/12 Smt. Kashmira Devi, PW/13 Vikram Singh, PW/14 Veerpal, PW/15 Mahipal Singh, PW/16 Pushpendra Singh, PW/17 Dalip Singh, PW/18 Jodha Singh, PW/19 Dr. Harendra Singh, PW/20 Hari Ram, PW/21 Gyan Singh, PW/22 Om Prakash, PW/23 Yatendra Kumar Awasthi, PW/24 Harish Chand, and PW/25 Ram Niwas and produced 26 documents. The accused appellants have been examined under Section 313 and in defence no witness has been produced but to support his case, the defence has relied on Ex.D/1 to D/14. After conclusion of trial, the present appellants have been convicted and sentenced as above. Hence this appeal.
(3.) The contention of the present appellants is that the whole story is fabricated one. It is admitted case of the prosecution that Foran Singh has reported the incident to the police and it was reduced in Roznamcha but Roznamcha has not been produced. The entry in the Roznamcha is the First Information Report and when First Information Report of the case has not been produced, the very basis of the prosecution case has broken down. Ex.P/1, the alleged First Information Report which was lodged by Ranveer Singh is hit by Section 162 Cr.P.C., as admittedly, the investigation was started after the receipt of telephone message. The case of the prosecution is that Ex.P/1, FIR has been lodged at 6.30 PM whereas the statements of witnesses Ranveer Singh and other reveals that within one hour it was not possible to lodge the FIR and non production of First Information Report gave rise to the adverse inference against the prosecution. PW/16 Pusphendra Singh is the star witness of the prosecution who had reached on the spot first. His statement has been taken after considerable delay of 10 days for which no explanation has been given. PW/16 Pushpendra Singh has not stated about the presence of any other eye-witness. FIR is a concocted one in which name of Pushpendra Singh has not been stated and all other witnesses are chance witnesses inimical to the present appellants and also related to the complainant; their testimony cannot be believed. Recovery of two fire-arms itself demolish the case of the prosecution. In FIR, the statement is regarding one fire-arm whereas case has been improved afterwards for having two fire-arms and recovery of two fire-arms goes against the story of the prosecution. Conviction for offence under Section 3/25 of the Arms Act is bad as sanction has not been proved by examining the sanctioning authority. There is no motive on the part of the appellants to commit the offence; there was no previous enmity between the parties; investigation is tainted one; offence has been committed in thickly populated area but no independent witness has been produced. As regards the appellant Ram Singh, it has been stated that initially, FIR was lodged with the aid of Section 34 but the appellant has been convicted with the aid of Section 109, there is no evidence of abatement. PW/7 Foren Singh and PW/16 Pushpendra Singh has not sated that Ram Singh was on the spot and therefore, the appellant Ram Singh has been implicated falsely hence conviction is bad in law and be quashed. Per contra, the contention of the learned Public Prosecutor is that the telephone message which was received at the Police Station cannot be termed as FIR only on the ground that the said information was first in point of time or was reduced in writing because anonymous telephone message could not be termed as FIR and Ex.P/1 cannot be said to be hit by Section 162 Cr.P.C. as it is the FIR of the case. If investigation has been started after receipt of information of offence, it cannot be termed as illegality as it is not necessary that a formal registration of case should have been made before proceeding to the spot. PW/16 Pushpendra Singh is not the star witness of the prosecution. He is not the eye-witness, he is only the son of the deceased and taken the deceased to the hospital. PW/7 Foran Singh has only informed the Police Station. PW/1 Ranveer Singh, PW/4 Fateh Singh, PW/6 Jagdish, PW/14 Veerpal and PW/15 Mahipal Singh, are the eye-witnesses; without delay FIR has been lodged within one hour of the incident and name of all the eye-witnesses has been mentioned in the FIR. The incident has taken place in a small village. All the witnesses are residing in the vicinity and their presence is natural and probable. Recovery has been proved by the Investigation Officer which also connect the ocular evidence. Motive is well-established as there was a quarrel between the children of the two families and accused appellants have pleaded in their statements that there is an established enmity between the parties as Ram Singh was witness against them and there is no infirmity in the impugned judgment.;