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CASE NO.: Appeal (crl.)  518 of 2001

PETITIONER: State of Rajasthan

RESPONDENT: Lala @ Abdul Salam

DATE OF JUDGMENT: 21/02/2008

BENCH: S. B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO. 518  OF 2001 With Criminal Appeal No. 519 of 2001

HARJIT SINGH BEDI, J.

1.      This appeal by way of special leave at the instance of the  State of Rajasthan has been filed challenging the judgment of  the Rajasthan High Court whereby the appeal filed by the  accused/respondent Lala @ Abdul Salam against his  conviction and sentence for an offence under Section 304      Part-II I.P.C has been allowed leading to his acquittal.  The  facts are as under: 2.      At about 3.00 p.m. on 3rd August, 1996,  police station  Bani Park, Jaipur received information that some person had  been caused injuries with a knife in front of Dilbahar Wine  Store and had been removed to the SMS hospital.  This report  was immediately entered in the roznamacha and as a  consequence thereof ASI Banwari Lal PW 14 accompanied by  Constables Khem Chand and Jai Kishan went to the hospital  and found Satish Kumar PW 3  present there.  Satish Kumar  gave a written report Ex. P-4 to ASI Banwari Lal in which he  stated that at about 2/2.30 p.m. while at home he had  received information from some person that his brother Om  Prakash @ Omi had been caused injuries with a knife near the  Dilbahar Wine Store and was lying there in an injured  condition.  He further stated that he rushed to the Wine Store  which was near the Khasa Kothi Circle and found Om Prakash  screaming in pain with blood oozing from his stomach.  On   enquiry, Om Prakash told him that  Lala @ Abdul Salam s/o.  Mohd. Yusuf who was a pick pocket by profession had stabbed  him after a quarrel over some money matter.  Satish Kumar  further stated that he had removed Om Prakash to the  hospital in an Auto rikshaw and had got him admitted in Ward  No.2.  As Om Prakash was not in a position to give  any  statement, an FIR was registered under Section 307 IPC on  the basis of the written information provided by Satish Kumar.   ASI Banwari Lal then started  with the investigation and also  made a search for the accused  and he was finally arrested  from near the Maharani Hotel later  the same day.  Om  Prakash  died at 10.30 p.m and the case was converted to one  under Section 302 IPC.  During the course of the investigation  a knife, the alleged murder weapon, and the clothes of the  accused were recovered at his instance and were sent to the  Forensic Science Laboratory for examination.  On the  completion of the investigation, he was charged for an offence

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punishable under Section 302 of the IPC and Section 4/25 of  the Arms Act to which  he pleaded not guilty and claimed trial.  3.      The prosecution in support of its case relied inter alia on  the statements of the brothers of the deceased, PW 2 Bhagwan  Sahai and PW 3 Satish respectively, PW 5 Bhagirath, a police  constable posted at Bani Park Police Station and who was at  the relevant time on duty on the Sawai Jai Singh Highway, two  recovery witnesses PW 6 Ram Singh and PW 7 Tej Singh,  who  were declared hostile,  PW 8 Jagdish Prasad Head Constable  Traffic Police who was on duty at the Khasa Kothi round-about  along with Deepak Kumar and Jagdish Prasad constables and  had reached  Dilbahar Wine Store on hearing a commotion.   PW 14 Banwari Lal ASI, and PW 15 Dinesh Kumar Sharma  DCP both Investigating Officers in this case and PW 17 Dr.  O.P. Saini who had conducted the post mortem examination  and prepared the report.  4.        The prosecution case was then put to the accused and  his statement was recorded under Section 313 Cr.P.C.  He  denied the allegations levelled against him and pleaded that he  had been caught on 1st of August, 1996 by some persons while  he was selling lottery tickets and handed over to two police  constables who had demanded money from him and on his  refusal to oblige them he had been taken to the police station  and a false case made out against him.  He also examined a  DW, one Bhasin in his defence.  5.      The trial court held that the witnesses were reliable and  that the injuries that had been caused by the accused  had led  to the death of Om Prakash but a case of murder was not spelt  out on the facts and that the accused was liable for conviction  and sentence under Section 304 Part-II of the IPC and that he  was also entitled to the benefit of doubt and thereby to an  acquittal for the offence under  the Arms Act. The accused was  thus sentenced to undergo RI for seven years under Section  304 Part-II IPC.  An appeal was thereafter taken by accused in  the High Court, which as already mentioned above has been  allowed leading to the present appeal at the instance of the  State.   In arriving at its conclusions the High Court observed  that it was clear that the Roznamacha entry Ex.D-4 had been  tampered with not only as to the time at which it had been  recorded but also the material facts had been obviously        over written.  The court also held that ASI Banwari Lal had  deposed that Satish PW 3 had given a written report at about  5 P.M. in the hospital and that on its basis an FIR  had been  registered in the police station at 5.30 p.m. under Section 307  IPC but as Satish had stated that the report had been given in  the police station at 8.30 P.M., the story given by the police  officer could not be believed.  The court also observed that the  initial prosecution story was that the incident had happened  in front of Dilbahar Wine Store but the venue had  subsequently been changed with the intention of shielding  the  employees of the liquor vend.  The High Court then referred to  the Roznamacha Ex.D-4 and the written report Ex.P-4 given  by Satish  as also the statement of Radhey Shyam PW 1  maternal uncle of the deceased and a witness to the site plan  Ex.P-2 to highlight that the incident had happened opposite  Dilbagh Wine Store.  Likewise the Court referred to the  statements of PW3 Satish, PW 4 Constable Inder Raj, PW 5  Constable Bhagirath that the incident had happened near the  liquor shop and not across the road.   6.      The High Court also found that as per the memo Ex.P-9,  the accused had been arrested by ASI  Banwari Lal at 8.30  p.m. on the day of incident after he had received information  from an informer that he was sitting at the C.T.S. bus station   and that he had been found at that place and had attempted  to run away but had been caught near Maharani Hotel and a

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memo of arrest Ex.P-9 had been prepared.  The Court,  however, observed that the statement of PW 8 HC Jagdish  Prasad of the traffic police completely demolished the story of  arrest as he had deposed that on hearing  a noise he alongwith  others had rushed to Dilbagh hotel and seeing some  one  inflicting injuries on the deceased and after causing the  injuries had attempted to run away and that he had been  chased by several policemen and arrested near the Maharani  Hotel.  The Court remarked  that from a perusal of Ex.D-6, the  report no. 263 in the Roznamacha of the traffic police which  had been recorded at 9.30 p.m., wherefrom it was clear that  the above facts leading to the arrest of the accused were not in  consonance with the prosecution version.  The Court thus  concluded that the story of arrest was a complete concoction  and could not be believed. The Court then went specifically in  the evidence of the eye witnesses and held that from a perusal  of Ex.P-13, the Roznamacha of the traffic police station it was  clear that Inder Raj Sharma and Bhagirath constable had   been on duty at the relevant time and that their presence had  been interpolated in the record by Hari Narain PW to show  their presence.  The High Court accordingly acquitted the  accused. 7.      Learned Counsel for the State has argued that the High  Court had not adequately met the reasons given by the trial  court in making the order of conviction.  He has pointed out  that the incident had happened in the afternoon and there was  no reasons at all in disbelieving the statement of PW 3 Satish  to whom the deceased had made a dying declaration as to his  assailants.  It has also been pointed out that the accused had  been apprehended soon after the incident and the fact that he  admitted that he had attempted to run away pointed to his  guilt.   8.      Learned Counsel for the accused however pointed out  that the High Court had given very good reasons for discarding  the prosecution story and that no interference was therefore  called for at this stage.  9.      We have considered the arguments of both the learned  counsel.  We note from the record that there has been gross  attempt on the part of the prosecution to create false evidence  in this case not only as the site of the incident (being changed  from being opposite the Dilbahar Wine Store to a place across  the road) but on several other aspects as well and with an  attempt to justify the presence of the eye witnesses. Likewise  we observe that the arrest of the accused is shrouded in  suspicious circumstances.  Here again we find that the  Roznamacha had been interpolated to show the presence of  the police officers who are alleged to have arrested him and  the story projected by ASI Banwari Lal that the accused had  been arrested from near Maharani Hotel at about 2.30 p.m.  has been completely falsified by P-263 in Ex.D-13 which  shows that the accused had in fact been arrested by Constable  Jagdish Prasad and some others in different circumstances  and from a different place.  It was in this background that the  High Court was compelled to order administrative action  against the police officers who had created false evidence in  the case and DSP Dinesh Kumar the  indicted police officer is  before us in Criminal Appeal no. 519 of 2001.  It has been  pointed out on his behalf that he had taken over the  investigation on 4th August, 1996, only as an accused  belonging  to a Scheduled Caste/Scheduled Tribe was involved  that that the only investigation that he made was with regard  to the recovery of the murder weapon.  In this view of matter,  we are of the opinion that no action is called for against this  officer and the observations made against him by the High  Court need to be expunged.

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10.     For the reasons recorded above, Criminal appeal No. 518  of 2001 is dismissed. Criminal Appeal No. 519 of 2001 is,  however, allowed and all adverse remarks made against DSP  Dinesh Kumar are deemed to be expunged.