Rajasthan High Court - Jodhpur

State Of Rajasthan vs Manna Singh And Ors ... on 9 February, 2023

Bench: Vijay Bishnoi, Praveer Bhatnagar

[2023/RJJD/004548]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Criminal Appeal No. 317/1990

State of Rajasthan

----Appellant Versus

1. Manna Singh S/o Kartar Singh

2. Baldev Singh S/o Kartar Singh

3. Pappi Singh S/o Dayal Singh

4. Mangi Singh S/o Dayal Singh

5. Dayal Singh S/o Dalip Singh

6. Tidda Singh S/o Bagga Singh

7. Sital Singh S/o Pritam Singh by caste Majbi - all resident of of Chak 8 Q District Ganganagar (Rajasthan)

----Respondents

For Appellant(s) : Mr. B.R. Bishnoi, Public Prosecutor For Respondent(s) : Dr. RDSS Kharlia

HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Judgment

09/02/2023

By the Court (Per Hon'ble Vijay Bishnoi, J)

This criminal appeal is preferred by the State assailing

the judgment dated 1.3.1990 passed by the Addl. Sessions

Judge No.1, Sri Ganganagar (for short 'the trial court') in

Sessions Case No.25/88 (64/87), whereby the accused

[2023/RJJD/004548] (2 of 15) [CRLA-317/1990]

respondents - Manna Singh, Baldev Singh, Pappi Singh,

Mangi Singh, Dayal Singh, Tidda Singh and Sital Singh have

been acquitted from the charges under Sections 148,

302/149, 307/149, 326, 324, 323/149, 302, 325 IPC.

Since this Court is in receipt of an information that the

respondent Nos.5 and 7 namely Dayal Singh and Sital Singh

respectively have died and the said fact is verified by the

learned Public Prosecutor on the basis of death certificates

issued by the concerned Gram Panchayat, the present

criminal appeal qua them has been ordered to be treated as

abated on 28.9.2022.

Brief facts of the case are that on 18.7.1987, at 8 AM,

Kaku Singh (PW-2) submitted an oral report at Police Station

Mathili Rathan, Distt. Sri Ganganagar stating therein that on

17.7.1983, in the evening, his father Buta Singh went to

Sarjeet Singh's house and when he went there to call his

father, Sarjeet Singh and Buta Singh were sitting there. He

has stated that Dayal Singh is the neighbour of Sarjeet Singh,

who is having old enmity with them. He has further stated

that when he and his father were going towards their house,

then, suddenly the accused respondents, with a common

intention, came to Sarjeet Singh's house alleging that Sarjeet

Singh's son Kala Singh is having illicit relationship with one

Lacchad's wife and they started searching for Kala Singh and

when they did not find him there, they attempted to assault

[2023/RJJD/004548] (3 of 15) [CRLA-317/1990]

Sarjeet Singh and his wife Sarjeet Kaur. When his father Buta

Singh tried to rescue them, the respondents Manna Singh,

Dayal Singh and Sital Singh all armed with gandasi, Baldev

Singh armed with lathi, Pappi Singh and Mangi Singh armed

with Kasiya and Tidda Singh armed with sela told that they

have an old enmity with Buta Singh and his sons as they

used to take Sarjeet Singh's side. After saying this, with the

intention to kill, all of them surrounded his father Buta Singh

and thereafter respondent Pappi Singh inflicted a kassi blow

on the head of his father Buta Singh, on account of which, his

father fell down and all of them started beating his father

with the arms carried by them and killed him. It is stated by

Kaku Singh that when he tried to rescue his father Buta

Singh, then, Mangi Singh inflicted a kassi blow on his head,

due to which, blood oozed out. Thereafter, Mangi Singh again

inflicted a blow on his leg and Baldev Singh inflicted a lathi

blow on his left hand. On hearing hue and cry, his brother

Mahendra Singh (PW-4), Sarjeet Singh (PW-6), Sarjeet

Singh's wife Sarjeet Kaur and Charanjeet Singh assembled

there, then, accused persons dragged his father's dead body

towards their house and threaw it in the open ground. The

accused persons threatened that if anybody would go to the

police, he would meet the same fate as of Buta Singh. Kaku

Singh has further stated that on account of fear of the

accused persons, he did not report the matter to the police in

[2023/RJJD/004548] (4 of 15) [CRLA-317/1990]

the night and now he along with his brother Mahendra Singh

(PW-2) is reporting the matter.

On the basis of the said oral report, the police registered

FIR No.51/87 at Police Station Mathili Rathan, Distt. Sri

Ganganagar against the accused persons and started

investigation. After investigation, the police filed charge-sheet

against the accused respondents and in due course, the

matter was committed to the trial court and the trial court

framed charges against the accused persons for the offences

under Sections 148, 302/149, 307/149, 326, 324, 323/149,

302, 325 IPC.

To prove the charges against the respondents, the

prosecution produced as many as eight witnesses and also

exhibited several documents. Statements of the accused

persons were recorded before the trial court under Section

313 CrPC, wherein all of them have denied the charges,

except one Sital Singh, who in his statements recorded under

Section 313 CrPC, has stated that he inflicted injury from the

back side of axe on Kaku Singh as he refused to return his

drum which he took away long time ago.

The trial court, after hearing counsel for the parties and

analyzing the evidence produced by the prosecution, has

acquitted the accused respondents from the charges levelled

against them vide impugned judgment.

[2023/RJJD/004548] (5 of 15) [CRLA-317/1990]

Learned Public Prosecutor has vehemently argued that

the trial court has grossly erred in disbelieving the testimony

of three eye witnesses namely Kaku Singh (PW-2), Mahendra

Singh (PW-4) and Sarjeet Singh (PW-6). It is submitted that

all the above-named witnesses were present when the

accused respondents were assaulting deceased Buta Singh

and Kaku Singh (PW-2). It is submitted that the weapons

used in the incident were recovered at the instance of the

accused persons and clothes of the accused persons smeared

with blood of deceased Buta Singh were also recovered from

some of the accused. It is argued that the trial court has

disbelieved the testimony of Kaku Singh (PW-2), Mahendra

Singh (PW-4) and Sarjeet Singh (PW-6) solely on the ground

that there are contradictions in their deposition. Learned

Public Prosecutor has further argued that the said

contradictions are minor in nature and are liable to be

ignored because all the eye witnesses have narrated the full

incident and the defence has failed to shake their testimony.

It is further submitted that the prosecution has produced

cogent and reliable evidence to prove the guilt of the accused

persons, but the trial court has disbelieved their testimony

without giving strong and justifiable reasons. Learned Public

Prosecutor, thus, prayed that the impugned judgment passed

by the trial court may be set aside and the accused

[2023/RJJD/004548] (6 of 15) [CRLA-317/1990]

respondents be punished suitably for the charges levelled

against them by the trial court.

Per contra, Mr. RDSS Kharlia, learned counsel for the

respondents has vehemently opposed the arguments

advanced by the learned Public Prosecutor and argued that

the trial court has not committed any illegality in passing the

impugned judgment because the prosecution has failed to

prove the charges against the respondents by producing

cogent and reliable evidence. It is submitted that there is a

delay of around 11½ hours in reporting the matter to the

police, though from the place of incident, the police station

was not far. It is also argued that the place of incident is also

doubtful because at one hand, the complainant has alleged

that the respondents assaulted him and his father in the

house of Sarjeet Singh, whereas on the other hand, he is

claiming that they were assaulted by the accused

respondents on the way which is far away from the house of

Sarjeet Singh. It is also argued that the conduct of Kaku

Singh (PW-2) and Mahendra Singh (PW-4) is also highly

doubtful because it is unbelievable that despite murder of

their father, they did not report the matter to the police for

more than 11 hours and went to their house leaving their

father's dead-body.

Mr. Kharlia has further argued that though the FIR was

registered at 8 Am on 18.7.1987, but all the accused persons

[2023/RJJD/004548] (7 of 15) [CRLA-317/1990]

were arrested on 27.7.1987 and it is not the case of the

prosecution that they were absconding or not available in the

village. Learned counsel has further argued that the recovery

of arms from the accused respondents is also highly doubtful

as the prosecution has failed to prove the said recovery of

arms at their instance beyond reasonable doubt. It is also

submitted that the recovery of blood smeared clothes of

some of the accused respondents is also highly doubtful as

opined by the trial court because it is difficult to believe that

even after seven days of the incident, the accused

respondents were wearing the same clothes, on which,

deceased's blood was allegedly found. Learned counsel has

submitted that the trial court has rightly observed that the

prosecution has failed to prove that the blood allegedly found

on the clothes of some of the accused is of deceased Buta

Singh. It is, thus, submitted that there is no illegality in the

impugned judgment passed by the trial court and the well

reasoned judgment of the trial court is not liable to be

interfered with. Learned counsel has submitted that the view

taken by the trial court is a possible view and, in such

circumstances, as per the law laid down by the Hon'ble

Supreme Court, the High Court should be slow in setting

aside acquittal of the accused by substituting its reasons.

In support of the above contention, learned counsel for

the respondents has placed reliance on the decision of the

[2023/RJJD/004548] (8 of 15) [CRLA-317/1990]

Hon'ble Supreme Court rendered in Dhanapal Vs. State,

reported in (2009) 10 SCC 401.

Heard learned counsel for the parties and carefully

scrutinized the record.

From the post-mortem report and the statement of

Doctor Om Prakash Sharma (PW-3), who conducted post-

mortem of the deceased, we uphold the finding of the trial

court that the death of deceased Buta Singh was not natural

but was homicidal.

The trial court has disbelieved the prosecution story

mainly on the following grounds :

      a)    Delay in lodging FIR.

      b)    Delay    in   sending         the      FIR      to   the   concerned

Magistrate.

      c)    Discrepancies in the testimonies of witnesses,

particularly Kaku Singh (PW-2), Mahendra Singh (PW-4) and

Sarjeet Singh (PW-6).

d) Non production of independent witnesses to prove

the incident;

e) No independent witness was called at the time of

recovery of weapons from the accused persons; and

f) Prosecution has failed to prove that the clothes

recovered from some accused and weapons recovered from

accused respondents contain blood of deceased.

[2023/RJJD/004548] (9 of 15) [CRLA-317/1990]

As per the prosecution story, the incident took place at

about 8 PM in the night of 17.7.1987. Admittedly, Kaku Singh

(PW-2) has orally complained about the incident at the

concerned Police Station around 8 AM on 18.7.1987, as such,

there is a delay of more than 11 hours in filing the complaint.

The complainant - Kaku Singh (PW-2), Mahendra Singh

(PW-4) and Sarjeet Singh (PW-6) have submitted explanation

that as the accused persons had threatened them that if

anyone is going to file complaint about the incident, he would

be killed as deceased Buta Singh is killed. The above-referred

witnesses have stated that out of fear, they had not reported

the incident to the police immediately. It is also stated by

Kaku Singh (PW-2) that the accused persons were giving

threats whole of the night, but have failed to explain that how

the threats or the fear of the accused persons disappeared in

the morning when he reported the matter to the police. The

trial court has rightly observed that the reasons as to how the

said threat, given by the accused respondents, had

disappeared, has not been explained by the complainant and

other witnesses.

It is to be noticed that the deceased was father of Kaku

Singh (PW-2) and Mahendra Singh (PW-4) and it is difficult to

believe that despite murder of their father, they went to their

house and did not report the incident to anybody prior to

filing of the complaint before the police. Though, mere delay

[2023/RJJD/004548] (10 of 15) [CRLA-317/1990]

in filing FIR is not proved fatal in all cases, however, it can be

a factor to judge the credibility of the prosecution story.

The Hon'ble Supreme Court in Jitender Kumar Vs.

State of Haryana, reported in AIR 2012 SC 2488 has held

as under :

"30. It is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of a case, delay in lodging the FIR can be one of the factors which corrode the credibility of the prosecution version. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The Court has to seek an explanation for delay and check the truthfulness of the version put forward. If the Court is satisfied, then the case of the prosecution cannot fail on this ground alone. [Ref. Yakub Ismailbhai Patel v. State of Gujarat [MANU/SC/0700/2004 : (2004) 12 SCC 229], State of Rajasthan v. Shubh Shanti Services Ltd. V. Manjula S. Agarwalla and Ors. [(2000) 5 SCC 30]."

As stated earlier, the conduct of prosecution witnesses,

particularly Kaku Singh (PW-2) and Mahendra Singh (PW-4) is

highly doubtful because even witnessing the murder of their

father, they failed to act swiftly. In such circumstances, in the

present case, the delay in lodging the FIR is proved to be

fatal and makes the prosecution story highly doubtful.

Though, FIR in the matter was lodged at 8 AM on

18.7.1987, but copy of the same was sent to the concerned

Magistrate in the evening at about 6:45 PM on 18.7.1987.

From the evidence available on record, it is revealed that the

concerned Magistrate was at Sri Ganganagar, which is around

[2023/RJJD/004548] (11 of 15) [CRLA-317/1990]

18 kms far from the police station, however, the trial court

has taken into consideration the fact that the SHO namely

Rajendra Singh (PW-7) has admitted in his statement that he

visited the place of incident in between 8 to 9 AM and

immediately sent constable Sukhpal Singh to Sri Ganganagar

to call a photographer. The Investigating Officer has failed to

explain that when constable Sukhpal Singh was sent to Sri

Ganganagar to call the photographer then why copy of the

FIR was not sent with him to be presented before the

concerned Magistrate.

The Hon'ble Supreme Court in Arjun Marik and Ors.

Vs. State of Bihar, reported in 1994 Supp (2) SCC 372

has made important observations in respect of delay in

sending the FIR to the Magistrate. The relevant observations

are reproduced hereunder :

"24...........Section 157 of the CrPC mandates that if, from information received or otherwise, an Officer-in- charge of Police Station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empower to take cognizance of such offence upon a police report. Section 157, Cr. P.C. thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159, Cr.P.C. envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the CrPC. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word "forthwith"

occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the combined reading of Sections 157 and 159 Cr.P.C. It has the dual purpose,

[2023/RJJD/004548] (12 of 15) [CRLA-317/1990]

firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch in the progress of the investigation."

So the delay in sending the FIR to the Magistrate also

raises serious doubt about the prosecution story.

The trial court has disbelieved the testimonies of three

main witnesses namely Kaku Singh (PW-2), Mahendra Singh

(PW-4) and Sarjeet Singh (PW-6) while observing that there

are certain discrepancies in their testimonies, which are of

significant in nature and on account of that, there testimonies

cannot be relied upon. The trial court has also observed that

the above-referred three witnesses are interested witnesses,

however, the prosecution has failed to produce any

independent witness to corroborate the version of the above-

referred witnesses.

We have carefully scrutinized the evidence of Kaku Singh

(PW-2), Mahendra Singh (PW-4) and Sarjeet Singh (PW-6)

and found that the discrepancies pointed out by the trial court

in their testimonies are of significant nature and non-reliance

by the trial court on their testimonies is supported by cogent

reasons. The trial court has rightly observed that the above-

referred witnesses are interested witnesses and the

prosecution has failed to produce any independent witness to

corroborate their version and, as such, the prosecution has

failed to prove the charges against the accused respondents.

[2023/RJJD/004548] (13 of 15) [CRLA-317/1990]

It is to be noticed that Kaku Singh (PW-2), in his oral

complaint, has stated that after hearing the cries, his

brothers Mahendra Singh and Charanjeet Singh reached the

place of incident and Sarjeet Singh and his wife Sarjeet Kaur

had also assembled there along with other residents of the

village and witnessed the incident. In his court statement,

Kaku Singh (PW-2) has stated that at the time of incident,

Vichitra Singh, Jodh Singh and Balvindra Singh were also

present, however, neither Sarjeet Kaur nor Vichitra Singh,

Jodh Singh, Balvindra Singh and Charanjeet Singh were

produced by the prosecution and this fact goes against the

prosecution.

The trial court has disbelieved the recovery of weapons

at the instance of accused respondents while observing that

no independent witness was called at the time of recovery of

those weapons.

All the accused respondents were arrested on 24.7.1987

and recovery of weapons were also effected from them on

27.7.1987 and 28.7.1987 and only Mahendra Singh (PW-4)

and Sarjeet Singh (PW-6) were made witnesses of the said

recovery of weapons. The Investigating Officer Rajendra

Singh (PW-7) has not furnished any explanation why

independent witnesses were not summoned at the time of

recovery of weapons from the accused persons.

[2023/RJJD/004548] (14 of 15) [CRLA-317/1990]

The police recovered Payjama of respondent Baldev

Singh and one Chola (long shirt) of respondent Mangi Singh

at the time of their arrest i.e. 24.7.1987 and in the recovery

memo, it is mentioned that blood was found on the said

clothes. As per the prosecution, the blood found on the

clothes of respondents Baldev Singh and Mangi Singh is of

deceased Buta Singh. The trial court has disbelieved the said

recovery while observing that it is difficult to believe that the

above-referred two accused persons were wearing the same

clothes after seven days of the alleged incident.

The trial court has also disbelieved the case of the

prosecution that the blood found on the clothes of some of

the accused and the weapons recovered at the instance of

accused respondents is of deceased Buta Singh and rightly

so.

Having carefully scrutinized the prosecution evidence,

we are convinced that the view taken by the trial court

acquitting the accused respondents was a possible view and

in that situation, this Court is not required to interfere in the

impugned judgment.

The Hon'ble Supreme Court in Dhanapal's case (supra)

has held as under :

"39. The following principles emerge from the cases above :

1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the

[2023/RJJD/004548] (15 of 15) [CRLA-317/1990]

trial court. The trial court's acquittal bolsters the presumption that he is innocent.

2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."

Having considered the entire evidence produced by the

prosecution and taking into consideration the reasons given

by the trial court for acquitting the accused respondents, we

are of the opinion that the view taken by the trial court is

possible and plausible.