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CASE NO.: Appeal (crl.) 409  of  1992

PETITIONER: THE STATE OF RAJASTHAN

       Vs.

RESPONDENT: SHRI TEJA SINGH & ORS.

DATE OF JUDGMENT:       07/02/2001

BENCH: N. Santosh Hegde & Shivaraj V. Patil.

JUDGMENT:

SANTOSH HEGDE, J. L...I...T.......T.......T.......T.......T.......T.......T..J     Being  aggrieved  by the judgment of the High  Court  of Judicature   for  Rajasthan  at   Jodhpur  in  Crl.   Appeal No.329/82  dated  12.1.1988 whereby the High Court  reversed the  judgment  of  conviction and sentence  awarded  by  the Sessions  Judge, Hanumangarh, in Sessions Case No.56/81, the State of Rajasthan has preferred this appeal.

   Briefly stated, the facts leading to this appeal are :

   On 15.8.1981 between 4 and 4.30 p.m.  one Hazoora Singh, resident  of  Jandawali, his daughter Amrao and Sadhu  Singh were sitting under a tree near their house when they heard a loud  shriek  coming  from a nearby house of  Billu  Majhabi whereupon  it  is  stated that the said trio rushed  to  the place  of  occurrence  and saw Mukhtiar Kaur  (A-3),  Bhajan Singh (A-2) had caught hold of the legs of one Malkiat Singh (deceased)  while  Teja  Singh (A-1) was stabbing  the  said Malkiat  Singh with a Kirpan.  At about the same time,  many other  persons of the village had also gathered at the  spot and  on seeing the crowd gathering, the abovenamed 3 accused fled  from the scene of occurrence.  It is alleged that  the said Malkiat Singh died on the spot.  Immediately thereafter Hazoora  Singh  went to Ram Pratap, Sarpanch of the  village and informed him of the incident, who, in turn, reported the matter  to  the Police over telephone.  The motive  for  the attack  is  stated  to be certain enmity  harboured  by  the parties  against  each other in regard to kidnapping of  the daughter  of  Hazoora Singh, namely, Guddi, some years  ago. It  is also stated that the accused Mukhtiar Kaur (A-3)  was having  an  illicit  affair with Teja Singh.  Based  on  the above  information  by  the Sarpanch,  Iqbal  Singh  (PW-10) registered an FIR at about 7.30 p.m.  the same day at Police Station  Hanumangarh  Junction and a case under Section  302 read  with  34 IPC was registered.  It is stated that  after the  arrest  of  the said accused persons,  a  blood-stained Kirpan was recovered from Teja Singh (A-1) and certain other blood  stained clothes were also recovered during the course of  investigation.   On completion of the  investigation,  a chargesheet was prepared in which a charge under Section 302

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IPC  was  framed  against Teja Singh while  a  charge  under Section 302 read with Section 34 IPC was framed against both Mukhtiar  Kaur and Bhajan Singh.  The learned Sessions Judge believed  the evidence of Hazoora Singh (PW-6), Amrao (PW-7) and  Sadhu  Singh  (PW-9) who had  allegedly  witnessed  the ghastly  incident  in question and placing reliance  on  the recovery  of  the blood stained clothes recovered  from  the accused,  convicted Teja Singh (A-1) under Section 302  IPC, and  Bhajan  Singh  and  Mukhtiar Kaur (being  A-2  and  A-3 respectively)  for  offence  under  Section  302  read  with Section  34  IPC and sentenced them to undergo  imprisonment for  life.   On an appeal filed by the accused persons,  the High Court came to the conclusion that even though according to  the  prosecution  version there  were  many  independent eye-witnesses,  none of them was examined by the prosecution while  it  is  only Hazoora Singh (PW-6), Amrao  (PW-7)  and Sadhu  Singh  (PW-9)  who were the close  relatives  of  the deceased  alone  were examined and it was not safe  to  rely upon  the  evidence of these interested witnesses  without any further corroboration.  The High Court also took note of the  fact  that the Sarpanch of the village Ram Pratap  who, according  to  the  prosecution,  was the  first  person  to communicate  the  incident in question to the Police  though cited  as  a  prosecution witness, was not examined  by  the prosecution but was examined as a defence witness.  The High Court  further  took  notice  of the fact  that  though  the incident  under  reference  was  reported  and  an  FIR  was registered at about 7.30 p.m.  on the date of the occurrence itself  i.e.   on  15.8.1981, the First  Information  Report reached  the Court of Magistrate at Hanumangarh which is not very  far  away  from the Police Station only  on  17.8.1981 which   delay  though  sought  to   be  explained   by   the prosecution,  did not find favour with the High Court.   The High  Court also took into account the fact that Sadhu Singh (PW-9)  who  is  alleged to be an eye-  witness  though  was present  during  the course of investigation,  was  examined only on 20.8.1981  nearly 5 days after the incident because of  which  the High Court felt it was not safe to rely  upon his testimony.  In view of the above circumstances, the High Court  came  to the conclusion that the prosecution in  this case has not proved its case beyond reasonable doubt, hence, allowed  the  appeal,  setting   aside  the  conviction  and sentences   imposed   on  the   appellants  before  it   and respondents herein.

   It  is against this judgment of the High Court that  the State of Rajasthan is in appeal before us.  On behalf of the appellant,  it  is  strenuously argued that the  High  Court erred in rejecting the evidence of the 3 eye-witnesses whose presence  could  not  have been doubted at the time  of  the incident and they having witnessed the attack, had no reason whatsoever  to falsely implicate the accused persons.  It is also  argued  that the FIR in question was lodged  at  about 7.30  p.m.  on 15.8.1981.  Since the said day happened to be a  holiday  on account of it being Independence Day and  the next  being  Sunday,  the  court  being  closed,  the  First Information Report could reach the court only on Monday i.e. 17.8.1981 hence there was nothing unusual about the delay in sending  FIR  to  the  court.    Learned  counsel  has  also vehemently argued that so far as Ram Pratap, Sarpanch of the village  is concerned, he was not a willing witness hence  a bailable  warrant  was issued seeking his presence in  court but  since  the same could not be executed, he could not  be examined.   So,  no adverse inference could be drawn.   More particularly,  learned  counsel  drew our attention  to  the

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finding  of the High Court that at the time of the  incident when the 3 eye- witnesses named above were sitting under the tree,  according  to  the understanding of the  High  Court, there  were large number of other villagers also present but were  not  examined by the prosecution, therefore, the  High Court drew adverse inference which, according to the learned counsel,  was  erroneous because it was not the  prosecution case that at the time when the 3 eye- witnesses were sitting outside  their  house, there was any other  person  present. Therefore,  the High Court committed certain factual  errors as to the presence of other eye-witnesses.

   We  have  examined  the  evidence   of  the  three  eye- witnesses  as  also  that  of   Iqbal  Singh  (PW-10),   the Investigating Officer.  We have also perused the evidence of Ram Pratap, Sarpanch (DW-1) and we do not find any reason to differ  with the finding of the High Court which sitting  as the  first  court  of appeal on facts, had  every  right  to re-appreciate the evidence.  In our opinion, the High Court, in  that process, has not committed any error.  As a  matter of fact, the explanation put forth by the learned counsel in regard  to  the delay in the FIR reaching the court  is  not tenable because assuming that there were some court holidays that  cannot  be a ground for the delay in the FIR  reaching the  Magistrate, because requirement of law is that the  FIR should  reach  the  concerned Magistrate without  any  undue delay.   We are of the opinion that the explanation given by the  prosecution regarding the delay in the FIR reaching the Magistrate is neither convincing nor acceptable.

   In  regard  to  the  next argument  of  the  appellants counsel that the High Court was wrong in assuming that other villagers were sitting with PWs 6, 7 and 9, assuming that it is an error even then there can be no doubt as could be seen from  the  prosecution  case that  other  villagers  whether sitting  with  PWs 6, 7 & 9 or not did rush to the scene  of occurrence,  therefore, it is clear that apart from the said eye-witnesses  produced  by  the   prosecution  many   other villagers  would  have  atleast seen the last  part  of  the occurrence  including  the  escape of the  accused  and  the accused  not  being strangers to those villagers could  have easily  identified  them by not examining those  independent witnesses,  the  prosecution  has   failed  to  produce  the available  independent corroborative evidence to support the evidence  of  interested  witnesses, namely, PWs 6,  7  &  9 because  of  which the High Court was justified  in  drawing adverse  inference  against the prosecution.  This  lack  of corroboration  of the evidence of PWs 6, 7 & 9 coupled  with the  fact  that PW-6 is admittedly a very old person  having problems with his eyes makes it difficult to believe that he was  really  in a position to identify the accused  persons. The  evidence  of the eye-witness PW-9 also becomes  suspect because  of  the  fact that though he was available  in  the village,  his evidence was recorded only after 5 days of the crime  for which the explanation given by the  Investigating Officer  is  not at all satisfactory.  The presence  of  the third  eye-witness  i.e.   PW-7,  Amrao,  is  also  doubtful because of the fact that even though she stated that she had lifted  the body of the deceased which was bleeding and  her clothes  had become blood stained, the Investigating Officer failed to recover the said clothes giving room for a genuine complaint that her presence is also doubtful.  These factors coupled  with  the  evidence of DW-1 Ram Pratap who  in  his evidence has stated that when he was told about the incident these  eye-witnesses did not mention the name of the accused

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persons  to  him, also makes the prosecution case  doubtful. Therefore,  in our opinion, the High Court was justified  in not  placing  any  reliance  on  the  evidence  of  these  3 eye-witnesses without any independent corroboration.

   For  the reasons stated above, we are in agreement  with the  findings of the High Court and we see no merit in  this appeal  and  the same is dismissed.  The bail bonds  of  the respondents stand discharged.