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PETITIONER: DR. KRISHNA PAL AND ANOTHER

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT30/11/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) NANAVATI G.T. (J)

CITATION:  1996 AIR  733            1996 SCC  (7) 194  1995 SCALE  (7)142

ACT:

HEADNOTE:

JUDGMENT:            (With Criminal Appeal Nos.445-446/94)                          O R D E R      These appeals  are directed  against the judgment dated March 24,  1993 passed  by the  High Court  at Allahabad  in Criminal Appeal  No.3062/79 and  Criminal Appeal No.3247/79. Both the  aforesaid appeals  were preferred  by the accused- appellants against  their conviction  and sentence passed by the  learned   Ist  Additional  Sessions  Judge,  Meerut  in Sessions Trial  No.5/79 under  Section 302 read with Section 148 and  149 IPC  and convicting  the  appellants  for  life imprisonment on  the charge  of murder  and also  convicting them under  Section 148  IPC. The  five appellants,  namely, Trikha (A-1) his two sons, Sohanvir (A-2) and Amar Pal (A-3) his brother’s son, Krishana Pal (A-4) and Veerpal (A-5) also a relation of Trikha, were prosecuted under Section 302 read with Sections  148 &  149 IPC  for causing death of one Amar Pal on October 11, 1978 at about 12.30 P.M.      The prosecution case in short is that the family of the deceased Amar  Pal and  the family  of Trikha  had  strained relations and  there had  been litigations  between them. On October 11,  1978, when  the deceased Amar Pal was suffering from headache  he had  been to  the shop of Dr.Rajveer Singh (PW.6). The  said doctor  after examining  the deceased  had given him  some medicine but when the deceased came out from the said  shop, all  the accused  persons attacked  him with knives and  they inflicted  sixteen injuries by knife on the deceased resulting  his death  on the spot. PW.1 Zile Singh, the uncle  of deceased,  who was  informed  about  the  said incident rushed to the place of occurrence and thereafter he made a  statement which  was scribed by his relation and the same was  sent to  the police  station which  was about nine miles from  the place of occurrence. The FIR was recorded at the police  station at  about 4.15  p.m.  on  the  basis  of fardbayan. It  may be  stated here that in the said FIR, the names of  PW.2 and  3 were  mentioned as eye witness and the

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name of  one Ranbir was also mentioned as an eye witness but the name  of PW.6 Dr.Rajveer Singh was not mentioned. On the basis of  the said  FIR, the  police came  to the  place  of occurrence and  inquest of  the dead  body was  made and the body of  the deceased  was sent  for postmortem examination. The doctor holding the post mortem examination has also been examined in this case.      Accepting  that   the   prosecution   case   has   been established beyond  reasonable doubt, the learned Additional Sessions Judge  convicted all  the accused under Section 302 and  Section  148  and  149  IPC  and  passed  consequential sentence as  indicated. The  accused  appellants  thereafter preferred the  aforesaid appeals  before the  Allahabad High Court which  were dismissed  by the  Allahabad High Court by the impugned judgment dated March 24, 1983.      Mr.U.R.Lalit, the  learned Senior Counsel appearing for the appellants in Criminal Appeal No.443 and 444 of 1994 has submitted that  in the  instant case,  the eye witnesses had not been  examined  by  the  police  immediately  after  the incident. On  the contrary,  there had  been  an  inordinate delay which  has not  been explained  by the prosecution. He has submitted  that PW.2 Ram Saran and PW.3 Attar Singh were examined almost  after three weeks and the other eye witness namely PW.6 Dr.Rajveer Singh was examined almost after about 56 days  of the  date of  occurrence. Mr.Lalit has submitted that  in   the  instant  case,  there  had  been  change  of investigating officer,  and PW.9 Atma Singh who investigated the case  earlier was  changed and  Sri Prem Singh was given the charge  of investigation of the case. It has come out in the evidence  that Atma  Singh handed  over such  charge  of investigation to  Sri Prem  Singh only  on October 26, 1979. Hence,  there   had  been   sufficient  time  for  the  said Investigation  Officer   Attar  Singh  to  examine  the  eye witnesses. Mr.Lalit  has submitted that it has also come out in  evidence   that  the   witnesses  were   available   for examination and  excepting in one case where the witness has stated that  he was absent for about five-six days, there is no material  to support  that there  was any  difficulty  in examining the  said  eye  witnesses  earlier.  Mr.Lalit  has submitted that  such inordinate  delay in  examining the eye witnesses raises  a strong  suspicion that  during the  long soan of time before they were examined for the first time by the police,  it is  quite  likely  that  the  witnesses  had occasion to  consult with  others and  come out with a false case in support of the prosecution.      Mr.Lalit has  also submitted  that the  doctor  holding post mortem  examination has  noted two  lacerated wounds on the person  of the  deceased and  it has  been sought  to be explained by the prosecution by contending that the deceased had dashed  against the  wall when  attacked by the accused. Such fact,  however, was not stated by PW.2 Ram Saran in his examination under  Section 161  Criminal Procedure  Code. In his deposition,  however, the  said witness Ram Saran stated that the  head of  the deceased got dashed against the wall. Mr.Lalit  has   submitted  that   such  improvement  in  the deposition was  made by  Ram Saran after coming to know that in the  post mortem report lacerated wounds were noted which could not  have been  caused by the knife. Mr.Lalit has also submitted that both the eye witnesses PW.2 and 3 are related to Zile  Singh and  the family of the deceased. Accordingly, their   evidences    should   be    considered   with   much circumspection. He  has also  submitted that  the other  eye witness Ranvir though mentioned in FIR has not been examined and no explanation has been given as to why he has been left out. So  far as PW.6 Dr.Rajveer Singh is concerned, Mr.Lalit

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has submitted  that the  said doctor  was examined  after 56 days  of   the  date   of  incident  and  as  aforesaid,  no explanation whatsoever  for such  inordinate delay  has been given by  the prosecution.  Mr.Lalit has also indicated that it transpires  from the  evidence of  Zile Singh that he had talked to Dr.Rajveer Singh about the incident and only after such talk  with Dr.Rajveer Singh, the statement constituting the FIR  was scribed.  Under such circumstances, the name of Dr.Rajveer Singh being the most important eye witness, ought to have  been mentioned  by the  said Zile Singh in the FIR. Non-mentioning  of   the  name  of  Dr.Rajveer  Singh,  only indicates that  Dr.Rajveer Singh had not seen the occurrence but later on, his name was introduced as an eye witness.      Mr.Lalit has  submitted  that  the  courts  below  have placed reliance  on the evidence of Dr.Rajveer Singh but for the aforesaid  reasons his evidence should not be held to be reliable for  basing the  conviction on  a serious charge of murder.  In  this  connection.  Mr.Lalit  has  referred  two decisions of  this Court  in Balakrushna  Swain Vs. State of Orissa (AIR  1971 SC  804) and  Atmaduddin Vs. State of U.P. (AIR 1974  SC 1901).  In the  said decisions,  it  has  been indicated by  this Court  that the implication of inordinate delay in examining eye witnesses, if not properly explained, should receive proper attention of the court for the purpose of deciding  the credibility  of the  eye witnesses who were examined by  the police after inordinate delay. Mr.Lalit has submitted that  it has come out in the evidence of Sri Attar Singh that  Dr.Rajveer Singh  had been  standing in front of his shoo and he asked the people assembled there to save the deceased.  He   has  submitted  that  if  this  evidence  is accepted,  it  is  reasonably  expected  that  the  name  of Dr.Rajveer Singh ought to have been mentioned in the FIR and he should have been examined by the Investigating Officer at the first  place. Mr.Lalit has also submitted that PW.2 also changed the  site from  where he  first heard  the noise  in connection with  the commission  of the  said offence. About such place,  there is  contradiction in his statement before the police, under Section 161 Criminal Procedure Code and in his deposition  before the Court. Even though isolately such contradiction may  not be  of much importance but if all the aforesaid facts are taken into consideration in their proper perspective, the  prosecution case should not be accepted to have been  proved beyond  reasonable doubt.  If there is any occasion to doubt in the facts and circumstances of the case that the prosecution case may not be correct, the benefit of such doubt  should go  to the appellants. He has, therefore, submitted that  the conviction  and sentence  passed against the  appellants  should  be  set  aside  by  allowing  these appeals.      The learned  counsel appearing  for  the  appellant  in Criminal Appeal  Nos.445-446 of  1994 has  also adopted  the aforesaid submissions  made  by  Mr.Lalit.  He  has  further contended that  in the  Panchnama  of  the  inguest  of  the deceased, the  number of  the crime  and Section under which the crime  had been  committed,  were  not  mentioned.  Such omission reasonably  indicates that the FIR was brought into existence at  a later point of time. The learned counsel has also  submitted  that  the  doctor  holding  the  postmortem examination has  also  stated  that  the  death  might  have occurred  even   earlier.  The   learned  counsel  has  also submitted that it has come out in the evidence of Zile Singh that if  somebody goes  to the shop of Dr.Rajveer Singh from the house  of Zile Singh and the deceased, the houses of the accused do  not come on the way. He has submitted that there is  evidence  to  the  effect  that  the  deceased  suddenly

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suffered  from   headache  and  had  gone  to  the  shop  of Dr.Rajveer. In  such circumstances,  it is  highly  unlikely that all  the accused  could know  of his movement and would come to the shoo for the assault. He has also submitted that in the  site plan  prepared by the Investigating Officer, it has not  been mentioned as to * the two eye witnesses namely PW.2 and  3 had  ben standing.  The absence of such location where the said eye witnesses had been standing, according to the learned  counsel,  only  indicates  that  the  said  eye witnesses were  not present  at the  place of occurrence but later on  they have been introduced as eye witnesses. He has therefore submitted that the case of the prosecution appears to be highly doubtful and no conviction can be based against the appellants  and the  appeal should be allowed by passing an order of acquittal in their favour.      Mr.Pramod Swarup, the learned counsel appearing for the State,  in  all  the  appeals,  has,  however,  refuted  the aforesaid contentions  made by  the learned  counsel for the appellants. He  has submitted  that although  in the instant case, the  delay in examining the eye witnesses has not been properly explained  because proper  materials have  not been placed on  record, but  for such  delay the  convincing  and reliable evidences  given by the eye witnesses should not be discarded. In  support of  such  contention,  Mr.Swarup  has referred to  a decision  of this Court in Ranbir and another Vs. State  of Punjab  (1973  (2)  SCC  444).  Mr.Swarup  has submitted that  PW.2 and 3 are not at all close relations of Zile Singh or the deceased and even if they had some distant relationship with  the family  of the  deceased, there is no material on  the record  to indicate that they were partisan or had occasions to be partisan and as such they were likely to give  false evidence  against the  appellants charged for murdering the  deceased. Mr.  Swarup has also submitted that Dr.Rajveer Singh is a respectable witness and is not related to the  parties and  his  evidence  is  fully  reliable  and without any  inconsistency. Such evidence, therefore, is not liable to  be discarded.  He has  also  submitted  that  his evidence also  stands corroborated by the evidences of other two eye  witnesses, Ram Saran and Attar Singh. Mr.Swarup has submitted that  although Ranbir  Singh has not been examined by the  prosecution, such non-examination of Ranbir does not affect the prosecution case in any manner whatsoever. He has contended that  it is  the quality  of evidence  and not the numerical strength  of the witnesses examined in a case that matters. Mr. Swarup has submitted that all the eye witnesses have specifically  stated that being attacked by the accused persons, the  head of  the deceased  got dashed  against the wall which  explains the  lacerated injuries  noted  by  the doctor holding  the post  mortem examination.  He  has  also stated that  blood mark  was  also  noted  by  Investigating Officer on  the wall  where the  head of  the  deceased  got dashed. He  has submitted that the postmortem report reveals that sixteen  injuries were  caused by  the  knives  on  the person of  the deceased  and such  injuries also support the prosecution case that the deceased were attacked by a number of persons  and  each  one  of  the  accused  had  inflicted injuries on  the  person  of  the  deceased.  Mr.Swarup  has submitted that as the evidence adduced by the prosecution in this case did not suffer from any infirmity or inconsistency for which they were liable to be discarded, both the learned Sessions Judge  and the  High Court  had  no  hesitation  in accepting the  same and  convicting  the  accused.  He  has, therefore, submitted  that no  interference is called for by this Court and the appeals should be dismissed.      After considering the respective submission made by the

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learned counsel  for the  parties  and  also  the  evidences adduced in  the case  through which  we have  been taken, it appears to  us that  PW.2, 3  and 6  namely Ram Saran, Attar Singh and  Dr.Rajveer Singh  have  clearly  established  the prosecution case  that the  appellants caused  the murder of the deceased  on October  11, 1978  by inflicting successive knife blows  on his  person. It appears to us that PW.1 Zile Singh, the  uncle of the deceased, is not eye witness of the occurrence but  having received  information, he came to the soot and  then dictated  the Fardbayan  on the  basis of the report received by him. It has also come out in the evidence that a  number of  persons were  present  at  the  place  of occurrence when  Zile Singh  reached there  and he talked to them  including   Dr.Rajveer   Singh.   In   the   aforesaid circumstances, it  is not  unlikely that  Zile Singh had not felt the  need to specifically enquire from Dr.Rajveer Singh as to  whether he  had seen  the assailants.  It is also not unlikely  that  Dr.Rajveer  Singh  also  did  not  feel  any necessity to  give the  names of the assailants because such names had  already been given by other eye witnesses present there. In the instant case, no explanation has been given by the prosecution  as  to  why  eye  witnesses  had  not  been examined shortly  after the  incident and from the materials on record it appears that there had been inordinate delay in examining the eye witnesses. But simply on that account, the convincing and  reliable  evidences  adduced  in  this  case should not  be discarded.  The Investigating  Officer in his deposition has also admitted that through mistake he omitted to mention  the crime  No. in the inguest report. It appears to us  that the  Investigating Officer had not been diligent enough but  for that reason we do not feel that reliable and clinching  evidences   adduced  in  this  case  by  the  eye witnesses  particularly   by  Dr.Rajveer   Singh  should  be discarded. In  this connection,  we may  refer to  a  recent decision of  this Court  in Karnel  Singh Vs.  State of M.P. (Judgment Today  1995 (6)  SC 437). In the said decision, it has been indicated by this Court that in a case of defective investigation, it  would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring  Investigating Officer.  As we  do  not  find  any reason to  disbelieve the testimonies given by eye witnesses of this  case, we  do not find any reason to take a contrary view and  to interfere  with the  impugned  judgment.  These appeals, therefore, are dismissed.