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CASE NO.: Appeal (crl.)  487 of 2000

PETITIONER: State of Jammu & Kashmir

RESPONDENT: S.Mohan Singh & Anr

DATE OF JUDGMENT: 09/03/2006

BENCH: B.N.AGRAWAL & A.K.MATHUR

JUDGMENT: J U D G M E N T  

B.N.AGRAWAL, J.  

       Respondent No. 1 \026 S. Mohan Singh was convicted by the trial court  under Section 302 read with Section 34 of the Indian Penal Code (hereinafter  referred to as ’IPC’) and sentenced to undergo imprisonment for life and to pay a  fine of Rs. 1,000/-, in default to undergo further imprisonment for a period of six  months.  Respondent No. 2 \026 S. Prithpal Singh was convicted under Section 302  IPC and sentenced to undergo imprisonment for life and to pay a fine of                  Rs. 1,000/-, in default to undergo further imprisonment for a period of six months.   On appeal being preferred, the High Court acquitted both the respondents.   Hence, this appeal by special leave has been filed by the State of Jammu &  Kashmir.          Prosecution case, in short, was that a dispute was going on between Yush  Paul Singh son of Ram Lal and one Titu, nephew of Balwant Singh, on the one  hand and the two respondents on the other hand and for resolving the same, a  meeting was convened on 23rd July, 1985 at 6.00 p.m. on the bank of river near  Gurdwara in village Sawan Chak.  In the said meeting, no decision could be  arrived at, as such, respondent No. 1 \026 S. Mohan Singh is said to have left the  meeting in the midway and other people also dispersed after this.  Thereafter,  Ram Lal heard cries of his son Yush Paul Singh from the compound of Gurdwara  and on arrival there, he found that respondent No. 1 had caught hold of Yush  Paul Singh and respondent No. 2 was inflicting injuries upon him with knife.   Seeing this, Ram Lal made an attempt to catch hold of respondent No. 2 in order  to save his son but in the meantime, respondent No. 1 is said to have hurled a  stone on him, as a result of which, Ram Lal sustained injuries and fell down.   Apart from Ram Lal, the occurrence is said to have been witnessed by Babu  Ram (PW 6), Pritam Singh (PW 4), Balwant Singh and Satnam Singh.   Thereafter, Yush Paul Singh was immediately taken to the hospital on a truck  where the doctor declared him dead.  Thereupon, Ram Lal accompanied by  witnesses, Pritam Singh and Balwant Singh went to Kathua police station to  lodge a first information report where upon the statement of Ram Lal, a case was  registered by the police on the same day i.e., on 23rd July, 1985 at 7.20 p.m.  against the respondents. The police after registering the case, took up  investigation and on completion thereof submitted charge-sheet, on receipt  whereof the learned Magistrate took cognizance and committed the respondents  to the court of Sessions to face trial.   Defence of the accused persons was that they were innocent, had no  complicity with the crime, no occurrence much less the occurrence alleged had  taken place and the prosecution party had received injuries in some other  manner of occurrence at some other place inasmuch as they have been falsely  roped in in this case to feed fat the old grudge.  During trial, both the parties adduced evidence and upon conclusion  thereof, the trial court recorded conviction of the respondents, as stated above,  which having been reversed by the High Court, the present appeal by Special  Leave by the State of Jammu & Kashmir.  During the course of hearing, it has been submitted by learned counsel  appearing on behalf of the respondents that respondent No. 2 \026 S. Prithpal Singh

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died during pendency of this appeal on 27th November, 2003 which fact has not  been denied on behalf of appellant \026 State.  As such, the present appeal against  respondent No. 2 stands abated.  In view of this, in the present appeal, we are  required to consider the case of respondent No. 1 \026 S. Mohan Singh alone.  The prosecution case as disclosed in the first information report is  corroborated by the medical evidence as the doctor who examined deceased  Yush Paul Singh opined that he received injuries by knife and the injuries were  sufficient to cause death in the ordinary course of nature.  Upon the disclosure  statement made by respondent No. 2,  a knife was recovered from his house.   The said knife was shown to the doctor who stated that only one side of the  blade of the knife was sharp and the other edge was blunt.  Doctor  Harbans  Singh, who was examined as PW-13  on seeing the said knife, stated that the  injuries found on the person of deceased could have been inflicted by the same.   As such, the High Court was not justified in coming to the conclusion that the  medical evidence does not fit in with the prosecution case.  Objective findings of the investigating officer also prove the place of  occurrence disclosed by the prosecution witnesses, as the investigating officer  who immediately inspected the place of occurrence, after registration of the case,  found and recovered blood stained earth therefrom which contained human  blood.  Out of five eyewitnesses, witnesses Balwant Singh and Satnam Singh  could not be examined during trial for the reasons, which were beyond the  control of  prosecution.  The trial court has found and recorded, as such in its  judgment that on several dates in the years 1986 and 1987, these witnesses  were produced by the prosecution for their examination but on all the occasions,  the accused took time in the case and did not allow the prosecution to examine  them.  Thereafter, when the witnesses did not appear, the trial court issued  warrants of arrest against them on request being made by the public prosecutor.   But all the time, they were found absent from their houses and it was reported  that they had gone out for discharging their professional duties as drivers.  From  the aforesaid facts, it becomes clear that the prosecution was all the time ready  and willing to examine the witnesses and had taken all possible steps for their  examination but they could not be examined for the reasons beyond their control.   As such, the High Court was not justified in drawing adverse inference against  the prosecution for non-examination of these two witnesses.  The next eyewitness was Pritam Singh who was examined as prosecution  witness in  court.  This witness supported the prosecution case by saying that a  meeting was convened for resolving dispute  between the parties but as the  same could not be resolved, respondent No. 1 who was also present in the  meeting, left the place.  He admitted that he heard Yush Paul Singh crying but  has not supported the prosecution case in relation to respondent No.1’s catching  hold of the deceased and respondent No. 2 assaulting him with a knife, although  this witness in his statement made before the police had specifically mentioned  these facts.  This witness further stated in court that he took Yush Paul Singh  along with other injured to the hospital where the doctor declared Yush Pal Singh  dead and thereafter he accompanied Ram Lal to the police station.  In our  opinion, this witness has supported the prosecution case to a great extent,  excepting the part played by the respondents, in his statement made in court and  as he was gained over by the defence,   he did not support the prosecution case  in relation to part played by the respondents though presence of respondent No.  1 \026 S. Mohan Singh in the meeting has been admitted by him.  Other two eyewitnesses are the informant Ram Lal and his brother Babu  Ram.  Ram Lal is father of deceased Yush Paul Singh whereas witness Babu  Ram is uncle of deceased Yush Paul Singh.  These two witnesses have  supported the prosecution case disclosed in the first information report in all  material particulars and consistently stated that respondent No. 1 caught hold of  the deceased and respondent No. 2 inflicted injuries upon him with knife.  We  have been taken through the evidence of these two eyewitnesses in extenso.   Their evidence is quite consistent, natural and both the witnesses have stood the  test of lengthy cross-examination by the defence.  Out of these two witnesses,  Ram Lal was the informant and  an injured witness as the doctor who examined  him on the date of occurrence itself found that he received injuries by hurling of  stone.  Nothing could be pointed out on behalf of defence to show that the  evidence of these two eyewitnesses is not credible, excepting this that they were  interested witnesses.  The High Court was not justified in disbelieving them on

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the sole ground that they were interested persons.  It is well settled that in a  murder trial, merely because a witness is interested or inimical, his evidence  cannot be discarded unless the same is otherwise found  to be not trustworthy.   In the present case, we are of the view that the evidence of these two witnesses  is credible more so when witness Ram Lal  received injuries.  In the present case, the occurrence is said to have taken place on 23rd  July, 1985 at 6 p.m.,  the first information report was lodged at 7.20 p.m. and a  copy of the same was received by the  Magistrate on the next day i.e.,  24th July,  1985 at 12.45 p.m.  The High Court was of the view that there was inordinate  delay in sending the copy of the first information to the Magistrate as the same  was not sent to the Magistrate during the night between 23/24th July, 1985.  In  relation to this, the prosecution has taken a definite stand that as there was no  practice prevalent in the area for sending the report to the residence of  Magistrate, as such  no adverse inference should have been drawn by the High  Court for not sending the report at the residence of Magistrate. In our view, copy  of the first information report was sent to the Magistrate at the earliest on the next  day in the court and there was no delay, much less inordinate one, in sending the  same to the Magistrate.  In any view of the matter, it is well settled that mere  delay in sending the first information report to a Magistrate cannot be a ground to  throw out the  prosecution case if the evidence adduced is otherwise found to be  credible and trustworthy.  Having perused the two judgments rendered by the trial court and the  High Court and the evidence adduced on behalf of the parties, we are of the view  that the trial court was quite justified in recording the order of conviction  and the  order of acquittal rendered by the High Court suffers from the vice of perversity  and is liable to be set aside.  In the result, the appeal in relation to respondent No. 1 \026 S.Mohan Singh  is allowed, the order of his acquittal rendered by the High Court is set aside and  his  conviction recorded by the trial court is restored.  The respondent No. 1 is  directed to be taken into custody forthwith to serve out the remaining period of  sentence.  The appeal in relation to respondent No. 2 \026 S. Prithpal Singh has  abated in view of the fact that he died during the pendency of this appeal.