SHARMA, J. - (1.) THE appellant (hereinafter described as `accused') was placed on trial before the learned Special Judge (Sati Nivaran) Rajasthan and Additional Sessions Judge, Jaipur City, Jaipur in Sessions Case No. 79/1997. Learned Judge vide judgment dated September 26, 2000 convicted and sentenced the accused for the offence under Section 302 IPC to suffer Imprisonment for life and fine of Rs. 10,000/ -. in default to further suffer Rigorous Imprisonment for One Year.
(2.) PUT briefly the prosecution case is that the informant Mohd. Shafiq @ Babu (PW. 6) submitted a written report at 7. 00 PM of February 28, 1996 at the Police Station Ramganj, Jaipur with the averments that around 5 PM on the said day when he was standing near Nagina Mandi, Irshad, Ashfaq and Guddu suddenly caught hold of Siraj (now deceased) and Dilshad inflicted blow on the left armpit of Siraj. The police station Ramganj Jaipur registered a case for the offences under sections 307, 341 and 34 IPC and investigation commenced. Injury sustained by Siraj got examined, which was described in the injury report (Ex. P-10) as under:- " Stab Incised wound of size 3 x 1cm x depth? Placed at Lt. side lower part of chest at Ant. Axillary line. The wound margins are regular and clean cut well defined with fresh bleeding. " Since Siraj succumbed to the said injury the case was converted under Section 302 IPC. Post Mortem on the dead body was performed vide Post Mortem Report (Ex. P-13), according to which deceased sustained following ante mortem injuries:- " (1) Stitched wound of size 28cm with 25 stitches over Rt. Para medial place of front of abdomen. (2) Stitched wound of size 24 cm with stitch over left side front of chest, 3cm below nipple from mid stemal line to left inter part of Axilla. (3) Stitched wound of size 3, 3/4cm over left side lower part of chest laterally in 8th (Eighth) Inter Costal Space. (4) Stitched wound of size 2cm with dranage tube in left 7th (Seventh) Inter Costal Space aid thoresic cavity deep. On dissection: The stitched wound over abdomen has 25 stitches with tensear sukurs aid underneath muscles are also found stitched peritoneal is found stitched and peritoneal cavity containing about 300cc haemorrhagic fluid. Further examination shows there is stitching in area 5cm obliquely left done of diaphagne with tissue staining is present. On dissection of chest: The stitched wound injury No. 2 is injurious part of chest to left Axilla in 6th Inter Costal space and further exploration shows there is Inter Costal muscles are found partial stitches at place in 6th Inter Costal space and stitched wound of size 2cm with dranage tube is lying in 7th Inter Costal space with one stitched aid b/o thorasic cavity deep (Probably done surgically ). On further exploration of injury No. 3 which is in 8th Inter Costal space externally. There is Incised wound of size 3cm x 1cm x though and though Inter Costal muscles and plura in 8th Inter Costal area margins are clear cut regular well defined. Further wound reached upto left lung lower lobe antuid laterally where the wound is stitched of size 5cm long with haematoma formation wound cut. There is about 300cc of the blood is present in left plura cavity. The lower side of 7th rib underneath wound is found cut in area of 1/2 x 1/4cm x though and though with tissue staining and haematoma formation around it are muscular haematoma present in Inter Costal area underneath. The cause of death was shock and haemorrhage brought about as the result of injuries to vital organs. The injury was sufficient to cause death in the ordinary course of nature. " On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge (Sati Nivaran) and Additional Sessions Judge, Jaipur City, Jaipur. Charge under Sections 302 and 341 IPC was framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as may as 20 witnesses. In the explanation under Sec. 313 Cr. P. C. , the accused claimed innocence and stated that he in fact was Irshad but wrongly described as Dilshad. Three defence witnesses were examined and 37 documents were exhibited to show that the accused was known as Irshad and not Dilshad. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above. The first contention of Mr. Bajrang Lal Sharma, learned Senior Counsel appearing on behalf of the accused, was that even according to first information report (Ex. P-4) the person who inflicted knife blow was Dilshad and not Irshad. Irshad was the person who caught hold the deceased alongwith Ashfaq and Guddu. Evidently Irshad and Dilshad were two different persons, but strangely the prosecution had clubbed two persons Irshad and Dilshad into one as Irshad @ Dilshad'. Our attention was drawn to the statement of Mohd. Shafiq @ Babu, recorded under section 161 Cr. P. C. (Ex. D-3) on February 29, 1996, wherein Mohd. Shafiq stated that at the time of drawing the report Naushad was wrongly mentioned by him as `dilshad'. We were taken through the documents Ex. D-8 to Ex. D-39 and the statements of defence witnesses to show that Irshad was never known as Dilshad. It was argued that the trial judge in the impugned judgment did not frame the important question as to whether Dilshad and Irshad was the same person. Finding arrived at by the trial Judge in para 19 of the judgment was criticised from various angles. It was canvassed that the facts contained in the first information report can not subsequently be changed. Reliance was placed on T. T. Antony vs. State of Kerala (1), wherein their Lordships of Supreme Court indicated that earliest first information of a cognizable offence satisfies the requirement of Section 154 Cr. P. C. There can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. It was next contended that since the FIR was not transmitted forthwith to the Court of Magistrate by the investigating agency, inference could be drawn that the accused was falsely implicated in the case. Bijoy Singh vs. State of Bihar (2), was cited in support of this contention wherein it was held thus:- (Para 7) "sending the copy of the special report to the Magistrate as required under section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 Cr. P. C. is the mandate of law. " Learned Senior Counsel also relied upon the ratio indicated in State of U. P. vs. Ramesh Prasad Misra (3), wherein with reference to section 161 Cr. P. C. following observations were made:- (Para 7) "the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. The fact that the hostile witnesses having given the statements about the facts within their special knowledge under section 161 recorded during investigation, have been resiled from correctness of the version in the statements without giving any reason as to why the investigating officer could record statements contrary to what they had disclosed shows that they had no regard for truth; they fabricated the evidence in their cross examination to help the accused which did not find place in their section 161 statements. "
(3.) RELIANCE was also placed on Husna vs. State of Punjab (4), wherein their Lordships of Supreme Court indicated as under:- (Para 6) "as already noticed in the FIR the names of both the appellants were found missing. They were only named in the supplementary statements of PW. 1 recorded during the investigation and in our opinion that statement, which was recorded during the investigation was hit by Section 162 Cr. P. C. and the Trial Court could not have relied upon the same as a part of the FIR. All the three appellants are brothers. No over act has been ascribed to Rupa, appellant during the entire occurrence. It seems rather improbable that if PW. 1 had allegedly snatched away a pistol from Rupa, appellant before Husna fired a shot at Satish Kumar, he would not have fired the same to prevent Husna from firing the shot. Besides no empty recovered from the spot has been connected by the ballistic expert with the pistol allegedly recovered from Rupa, appellant. After carefully analysing the evidence on the record, we are of the opinion that the prosecution has not been able to satisfactorily establish the case against the appellant Rupa beyond a reasonable doubt. The possibility that he was named being the brother of Husna cannot be ruled out. His presence at the time of occurrence has not been satisfactorily proved. His conviction and sentence for the various offences as recorded by the Trial Court therefore cannot be sustained. Reference was also made to State of Haryana vs. Chandvir and Others (5), and learned Senior Counsel canvassed that the witnesses who fabricated and improved their version from stage to stage cannot be relied upon. Sum and substance of the submissions of learned Senior Counsel was that since the injury was attributed to Dilshad and Dilshad and Irshad were two different persons and scribe of the FIR was not produced the case of the accused was prejudiced and the finding arrived at by learned trial judge could not be sustained. ;