JUDGMENT
N.N. Mathur, J.
1. This appeal is directed against the judgment dated 2.12.1996 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act, Jodhpur in Sessions Case No. 12/96 convicting the accused appellant of offence under Section 302 I.P.C. and sentenced him to imprisonment for life and to pay a fine of Rs. 500/-, indefault of payment to further undergo three months R.I. He has also been convicted of offence under Section 324 I.P.C. and sentenced to imprisonment for two years and to pay fine of Rs. 500/-, in default of payment to further undergo 3 months R.I. Both the sentences have been ordered to run concurrently.
2. The prosecution case briefly stated is as follows:
On 26th November. 1995 PW/14 Shaitan Singh A.S.I. Mahamandir, Jodhpur on receiving a telephonic information reached at M.G. Hospital, Jodhpur. On enquiry PW/5 Kishan Lal stated that at about 8.45 P.M., while he was at his residence, some children came running to his house from the ‘Garbha’ and informed that the accused Bablu, Ayub and Rajesh Harijan have attacked on Raju @ Gungia by Knife. On receiving this information, he rushed to the ‘Gangabai’ temple. He found some blood spread on the spot. Raju was removed and taken to the hospital. He rushed to the M.G. Hospital and found Raju seriously wounded by knife. Another person present in the hospital and standing nearby namely Abdul Vahid also disclosed that when the deceased Raju was proceeding from Nagori Gate Circle towards ‘Gangabai’ temple, the accused Bablu Bharti, Ayub and Rajesh came from the side of Lakhara Bazar and made him to stop. Ayub and Rajesh caught the deceased Raju and Bablu stabbed knife. He also stated that the incident was witnessed by PW/1 Mohammad Sabir and PW/12 Ram Lal. On the basis of the statement of PW/5 Kishan Lal Ex. P/4, Police registered F.I.R. for offence under Sections 307, 324 and 341/34 I.P.C. and proceeded with investigation. Raju died on 27.9.1995 at about 8 A.M. and, therefore, a offence under Section 302 I.P.C. was also added. After usual investigation, police laid chargesheet against the accused appellant Parikshit Bharti and three others namely; Jai Kishan, Raju and Rajesh.
3. The accused persons pleaded not guilty and claimed trial. The prosecution in support of the case examined 27 witnesses and produced certain documents. The accused persons in the statement under Section 313 Cr. P.C. stated that all the evidence appearing against them is false. Six witnesses were examined in defence. The trial court acquitted the accused Jai Kishan, Rajesh and Raju of all the charges levelled against them. However, the trial court found the case against the accused appellant proved and as such, convicted and sentenced him as noticed above.
4. Assailing the conviction, Mr. Sandeep Mehta, learned Counsel appearing for the appellant Parikshit Bharti @ Bablu contended that the trial court has committed an error in convicting the appellant solely on the testimony of PW/2 Abdul Wahid. It is submitted that the statement of PW/2 Abdul Wahid stands contradicted on material particulars by the statement of PW/5 Kishan Lal particularly about the time of incident, which excludes his presence on the spot at the time of incident. Elaborating the contention, it is submitted that PW/5 Kishan Lal has categorically stated that at about 8.45 P.M. he was informed by some of the children about the incident. Thus according to him, the incident took place prior to 8.45 P.M. whereas Abdul Wahid has stated that the incident took place when they were returning after seeing the ‘Garbha’ dance. In the cross-examination he admitted that ‘Garbha’ dance was witnessed by him. Thus, it is asserted that this witness has not seen the occurrence which took place prior to at 8.45 P.M. As per the version given by the PW/2 Abdul Vahid, he went to the police station alongwith the deceased Raju but this fact does not find place in the police record. It is also contended that though, it is admitted by the prosecution that when the deceased Raju was taken to the police station, immediately an entry was also made in the ‘Rojnamcha’ but, the same has not been produced. It given rise to suspicion that F.I.R. has been substituted. It is also contended that learned Judge has adopted double standard in analysing the evidence of P.W./2 Abdul Wahid, in as much that his testimony has been disbelieved as against accused Jaikishan, but he been believed as against the appellant. On the other hand learned Public Prosecutor has supported the judgment of the trial court.
5. At the commencement of the hearing, Mr. Sandeep Mehta, learned Counsel for the appellant, invited our attention to the orders of this court dated 10.4.1997, passed in application for suspension of sentence and requested to direct the Public Prosecutor to produce the Rojnamcha for the perusal of the court. The order dated 10.4.1997 reads as follows: ‘Rojnamcha’ dated 26.9.1995 may be sent for and perused by the court before disposing of this bail application.” The court directed the learned Public Prosecutor to produce the ‘Rojnamcha’ on the next date of hearing i.e. on 15.4.1997. After perusing the Rojnamcha, the application for suspension of sentence was rejected on merit. It appears that the court was not impressed with the contention. However, temporary bail was granted for the period from 19.4.1997 to 11.5.1997. We have again perused the ‘Roznamcha’. It shows an entry on 26.9.1995 receiving information at 10.30 P.M. about the incident of instant case. The exercise undertaken in no way helps the appellant on the contrary supports the prosecution case.
6. We have considered the rival contentions and scanned the prosecution evidence carefully. PW/1 Mohammad Sabir who has been named as an eye witness in the F.I.R. has been won ever by the defence and as such he has not supported the prosecution case. He has been declared hostile. PW/3 Gajanand a formal witness of police memo though admitted his signature on the site plan Ex. P/2, but did not support the prosecution and, as such, he has also been declared hostile. Similar is the position of PW/4 Thakur Das, PW/8 Daulat Ram, PW/9 Munna, PW/13 Jahoor Mohammed, PW/18 Laxmi Narayan, PW/19 Gyan Chand, PW/21 Smt. Maina, PW/22 Smt. Leela, PW/23 Smt. Shanti, PW/26 Lal Mohammad and PW/27 Taj Mohammad. PW/10 Bhagwan Das, a formal witness of Ex. P/6 though admitted his signature, but stated that as two others have signed, he had also signed on the said document. Though, this witness has not been declared hostile but has also not supported the prosecution as such. PW/15 Jogaram is the Incharge, Police Station, Mahamandir. He has stated that Shaitan Singh had brought the report Ex. P/4 to the police station, on the basis of that information, F.I.R. Ex. P/13 was registered by him. PW/16 Ghevar Ram is the Head Constable at police station, Mahamandir. He has stated that he has taken certain sealed packets from the office of Superintendent, Jodhpur for delivery at the Forensic Laboratory, at Jaipur. PW/17 Hanuman Singh, PW/20 Veerendra Singh and PW/24 Habeeb Khan, Dy. Superintendent of Police, Jodhpur city have also stated in the same line. PW/24 Habib Khan has given the details of the investigation. PW/25 Dr. N.S. Kothari stated that he conducted the post-mortem of the body of deceased Raju @ Gungia vide Ex. P/34 and found following injuries:
1. Incised wound (stab) 2. 0 cm. x 1.0 cm. x muscle on the left supra clavical region (neck) with tailing 4.0 cm. x 0.1 cm. towards left shoulder bleeding.
2. Incised wound (stab) 2.0 cm. x 1.0 cm. on the upper 1/3 left thigh antro medially with profuse bleeding.
3. Incised wound 2.0cm. x 0.3cm x skin deep upper 1/3 right thigh antro laterally oblique.
4. Incised wound 2.0 cm. x 0.5 cm. upper 1/3 right thigh posteriorly.
5. Incised wound (stab) 2.0 cm. x 1.0 cm. x muscle deep Rt. gluteal region middle 1/3 part of Rt. lateral aspect with bleeding.
6. Incised wound (stab) 2.0 cm. x 1.0 cm. x muscle deep Rt. Gluteal region middle 1/3 part medially oblique with bleeding.
7. Incised wound (stab) 2.0 cm. x 1.0 cm. x muscle deep on the lower 1/3 Rt. Gluteal region.
8. Incised wound (stab) 2.0 cm. x 1.0 cm. x muscle deep mid tamper region (torn) back oblique.
9. Incised cut 15.0 cm. x 0.2 cm. torn skin deep medial to the scapular region (torn).
10. Incised cut 9.0 cm. x 0.2 cm. x skin deep lower part (torn) scapular region.
11. Incised Abrasion: 5.0 cm. x 0.1 cm. large lumber region simple sharp.
In his opinion cause of death of deceased Raju was Shock and hemorrhage due to injury on Fermoral vessel and other multiple stab wounds. Thus, prosecution has established that Raju died of homicidal death.
7. PW/7 Babu Lal has stated that on 26.9.1995 he had gone to see the ‘Garbha’ dance on the ground of Nagori Gate School. He left the place at about 10.30 P.M. Deceased Raju @ Gungia was ahead of him. Deceased asked him to stop. At that time, accused Parikshit Bharti, Jaikishan and Rajesh arrived and stopped Raju. They assaulted Raju, on account of which, he fell down. Deceased Raju tried to get up but he was caught by Jai Kishan & Rajesh. Bablu attacked with knife causing wounds, on thigh, back and other parts of the body of the deceased Raju. There was profuse bleeding. He also stated that Mohammad Sabir, Ram Lal and Abdul Vahid were also on the spot but out of fear they could not rescue him. In the cross-examination he stated that the ‘Garbha’ dance continued up to 10.30 P.M. or 11.00 P.M. He has also stated that ‘Garbha’ dance finished at about 11.00 P.M. He also admitted in the cross-examination that he went to the hospital after half an hour. He denied the suggestion that he went to the hospital after an hour as he was not on the spot. He also denied the suggestion that the incident took place at about 8.45 P.M. and the deceased was admitted in the hospital at about 9 P.M. He stated that the incident took place at about 10.30 P.M. He also stated that he did not narrate the incident to his uncle Kishan Lal. Thus, nothing has been elicited to discredit the testimony of this witness.
8. PW/11 Baby has stated that at about 10.30 P.M. while she was at her residence, some children of the locality informed that Parikshit Bharti @ Bablu, Jai Kishan, Ayub and Rajesh have assaulted her brother Raju. She rushed to the place of incident and found her brother Raju lying injured. She stated that Babu Sargara and Babu Jatia and Vahid were also standing there. She also stated that Parikshit Bharti assaulted deceased Raju by knife. In the cross-examination, she admitted that she did not see the incident from her own eyes but she has stated on the basis of the information given by the children of the locality. In view of this, she cannot said to be an eye witness. However, her evidence is relevant to the extend that she reached on the spot at about 10.30 P.M. and found Raju injured. She has established the presence of P.W./2 Abdul Wahid and P.W./7 Babu Lal.
9. PW/12 Ram Lal has stated that the incident is of 10.30 P.M. at that time he was coming from the Nagori Gate side alongwith Mohammad Sabir. Inside the Nagori Gate Wahid met him. He was returning after seeing ‘Garbha’ dance. Ahead of his deceased Raju @ Gungia was moving. He also stated that from Jatia colony Parikshit Bharti @ Bablu and Jai Kishan came and near the culvert of the temple, Jai Kishan and Rajesh caught hold Raju, he was stabbed by Bablu Bharti. The deceased Raju made a cry ‘(SIC)’ they rushed to Raju @ Gungia. All the three accused person ran away. Raju became unconscious. After some time, the sister of Raju arrived. He also stated that cousin of Raju namely Babu was also standing there. He alongwith Abdul Vahid took Raju to the Mahamandir Police Station. They were asked to take him to the hospital. Thereafter they took him to the hospital. In the cross-examination he has admitted that from ‘Garbha’ fair there is a direct route for going to Nagori Gate and it is not necessary to pass through ‘Gangabai’ temple. In the cross-examination he also admitted that when he reached to the place of incident, Raju was lying on the stones. He also stated that after hearing the cries of Raju when he rushed to the spot, the accused persons had disappeared. A criticism has been made by the learned Counsel that this witness cannot said to be eye witness as he has admitted that when he reached on the spot, the deceased was lying on the stones and the accused persons had disappeared. Thus, according to the learned Counsel, this witness reached on the spot after the incident was over. In our view, there is no substance in the contention. He has stated in the examination in chief that ahead of him the deceased Raju was moving. He saw that from ‘Jatia colony’, Parikshit Bharti @ Bablu came and near the culvert of the temple, Jai Kishan and Rajesh caught hold Raju and Bablu stabbed him. Raju raised a cry ‘(SIC)’ All the three accused persons ran away. He reached on the spot and found that Raju was wounded and he was lying unconscious. In the cross-examination he has admitted that when he. reached on the place of incident, the deceased Raju was lying wounded and the accused persons had ran away. This clearly shows that this witness had seen the actual incident as the deceased was moving ahead of him. but when he reached on the spot, the deceased had fallen on the ground and the accused persons ran away. We do not find any infirmity in the deposition of P.W./12 Ram Lal.
10. PW/2 Abdul Wahid has stated that on 26.9.1995 he was returning after seeing ‘Garbha’ dance, in the way Sabir and Ram Lal met him. Cries of Raju attracted him. He saw that the accused Bablu @ Parikshit Bharti was causing injuries by knife to Raju. He also stated that he immediately rushed to the place of incident. The sister of the injured. Baby and cousin Babu were also standing there. After some time, brother Kishan Lal and his father also arrived there. Injured was taken to the Nagori Gate and thereafter he was taken to the hospital in a taxi. He has also stated that at that time road-light was on. There was also light of the temple. He further stated that he narrated the incident to Kishan Lal, the brother of the deceased Raju. In the cross-examination, he admitted that he had seen the ‘Garbha’ dance up to 10.30 P.M. After seeing the ‘Garbha’ dance, he moved towards Nagori Gate. He has stated that he had seen the incident from the distance of 60 feet. He has also admitted that from the place of incident, he took the deceased Raju to the police station. They were advised to take him to the hospital immediately. Nothing has been elicited to discredit the testimony of the witness.
11. Thus three eye witnesses namely F.W./2 Abdul Wahid, PW/7 Babulal and PW/12 Ram Lal have clearly deposed that appellant inflicted repeated knife injuries to the deceased Raju. Post-mortem report Ex. P/34 shows that the deceased sustained ‘injuries inflicted by sharp edged weapon’. In the opinion of PW 25 Dr. N.S. Kothari that deceased Raju died of multiple state wounds. The statement of the eye witnesses finds corroboration from the medical evidence.
12. The learned Counsel has over emphasized the discrepancy between the statement of PW/5 Kishan Lal and other witnesses, on the point of time of incident. PW/5 Kishan Lal, the brother of the deceased Raju has stated that at about 8.45 P.M. some children of the locality informed him that Raju has been wound by Bablu, Rajesh and Jaikishan. On the contrary, PW/2 Abdul Vahid has stated that the incident took place when he was returning at about 10.30 P.M. after seeing the ‘Garbha’ dance. PW/7 Babu Lal has stated that at about 10.30 P.M. when he was returning after seeing the ‘Garbha’ dance, the deceased Raju who was moving ahead of him asked him to stop. At that time, the accused persons attacked on him. Thus, according to this witness also, the incident took place after 10.30 P.M. PW/12 Ram Lal has also stated that the incident took place at 10.30 P.M. On careful scrutiny of the evidence, we find that there is no material discrepancy in the statement of the witnesses. PW/5 Kishan Lal is not an eye witness. All the witnesses are illiterate. It has been admitted by the witnesses that they cannot see the watch to know the time. There appears to be some error in the statement of PW/5 Kishan Lal when he stated that the children of the locality informed him about the incident at about 8.45 P.M. This discrepancy is not of nature to out weigh the other overwhelming evidence implicating the appellant. It is contended that if the incident had taken place at 10.30 P.M., the injury report could not have been prepared at 11 P.M. Learned counsel has invited our attention to injury report of Raju Ex. P/34 showing that he was examined at 11 P.M. There is nothing unusual in it. In the city of Jodhpur half an hour is more than sufficient time for taking a person from Mahamandir to M.G. Hospital, via Mahamandir police station. There is no cross-examination of the Investigating Officer on this aspect. The contention being devoid of merits, is rejected.
13. Learned counsel has invited our attention to the statement of PW/14 Shaitan Singh A.S.I. Police Station, Mahamandir wherein, he has admitted that the deceased Raju was brought to the police station but he does not recollect if the information has been registered in the ‘Rojnamcha’. It is submitted by the learned Counsel that the investigation is tainted in the sense that the original F.I.R. has been substituted by the police. Learned counsel has placed reliance on the decision of the Apex Court in Sevi v. State of Tamil Nadu . We have gone through the said decision. In the said case the suggestion of the defence was that the original F.I.R. was something altogether different from what was produced subsequently as F.I.R. To substantiate the suggestion the defence requested the learned Sessions Judge to direct the Superintendent of Police to produce F.I.R. book in the court so that the counterfoiles may be examined. The Sub-Inspector was unable to produce the relevant F.I.R. book in the court notwithstanding the directions of the court. The police even could not produce the general diary. In such circumstances, the court entertained doubt and observed that even if the general diary would have been produced, the doubt could have been dispelled. In the instant case general diary known as ‘Rojnamcha’ has been produced. We have perused the same. There is an entry that at about 10.30 P.M. a information was registered that a quarrel has taken place and injured has been taken to the hospital. This information cannot said to be F.I.R. Just on receiving a information it is not obligatory on the Sub-Inspector to register the F.I.R. A police officer may make an entry in the general diary and may proceed to satisfy that the information received by him is of cognizable offence. In view of this, we find no substance in this contention as well.
14. Thus, all contentions to suspect the prosecution evidence fails. The statement of eye witnesses referred to above clearly speaks that it was the appellant, who inflicted knife injuries to Raju, which resulted in his death. The statement of the witnesses is corroborated by the medical evidence.
15. Thus we find no infirmity in the judgment of the trial court. The appeal is dismissed. The accused appellant is in jail. He will serve out the remaining part of sentence.