JUDGMENT
Shiv Kumar Sharma, J.
1. The appellants six in number, were indicted before the learned Sessions Judge Jaipur City in Sessions Case No. 179/96 for having committed murder of Babu Lal. Learned Session’s Judge vide judgment dated September 29, 2000 convicted and sentenced the appellants as under-SURESH & GOPAL :
Under Section 302 IPC Life imprisonment with fine of Rs. 5000/-
and in default of payment of fine to further
suffer one month R.I.
Under Section 148 IPC to undergo six months R.I.
Under Section 452 IPC to suffer one year RI and fine of Rs. 100 in
default to further suffer 15 days R.I.
KAILASH, GIRDHARI, BABULAL SON OF KANJI AND NARAYAN
@ SATHYA :
Under Section 302/149 IPC Life Imprisonment with fine of Rs. 5000/-
and in default of payment of fine to further
suffer one month R.I.
Under Section 148 IPC to undergo six months R.I.
Under Section 452 IPC to suffer one year RI and fine of Rs. 100 in
default to further suffer 15 days R.I.
All the sentences were ordered to run concurrently.
2. The case of prosecution as disclosed in the written report Ex. P.1 lodged with the Police Station Shastri Nagar, Jaipur by Jugal Kishore (PW. 4) at 12.15 a.m. on May 31, 1996 is that on May 30, 1996 at around 11.15 p.m. the appellants Suresh, Gopal, Girdhari, Babulal son of Kanji and Sri Narayan @ Satya armed with sticks, axe and knife entered their house, hurled abuses, and beat his father, mother, sister and younger brother. They dragged his brother Babulal (now deceased) out of the house and Suresh and Gopal indiscriminately inflicted knife blows on the person of Babulal. On hearing hue and cry Pooran, Trilok Chand and other persons came over there and interverned Babulal was removed to the Hospital in a serious condition. Police Station Shastri Nagar registered a case under Sections 147, 148, 149, 452 and 307 IPC and investigation commenced. After the death of Babulal Section 302 IPC was added. On completion of the investigation, charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Jaipur City. Charges under Sections 148, 452, 302, and 302/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 12 witnesses and got exhibited 24 documents. In the explanation under Section 313 Cr.P.C. the appellants claimed innocence. No witness was however produced in defence. The learned Sessions Judge on hearing the final submissions convicted and sentenced the appellants as indicated hereinabove.
3. The prosecution case hinges on the testimony of Bhori Devi PW. 1, Prem Devi PW. 2, Pooran PW. 3, Jugal Kishore PW. 4 and Kamlesh PW. 5, who are respectively mother, sister, brothers and nephew of the deceased. Dr. O.P. Saini PW. 12 examined the injuries sustained by deceased Babulal before his death and Dr.P.C. Vyas PW. 8 conducted post mortem on the dead body of Babulal. Govind Narain Pareek PW. 11, was the investigating officer, who at the instance of appellants got recovered weapons allegedly used in commission of the crime.
4. During the pendency of appeal the appellants submitted application under Section 391 Cr.P.C. for taking on record certain documents. It was interalia stated in the application that the appellants Suresh and Gopal also sustained injuries which were got examined on June 1, 1996 and injury reports No. 2490 and 2491 were drawn. The injury reports, X-ray report and FSL report could not be filed by the prosecution therefore for the proper decision of appeal the said documents be taken on record. Although no reply to the application was filed on behalf of the State but the learned Public Prosecutor opposed the application orally. We have heard the submissions advanced in support of the application and scanned the documents placed for our perusal. We do not find any merit in the application. From the material on record it is evident that the appellants in their explanation under Section 313 Cr.P.C. did not say a word about the injuries allegedly received by them. Even no such suggestion was made to the Investigating Officer Govind Narain Pareek (PW. 11). The provisions contained in Section 391 Cr.P.C. in our opinion, are not meant for filling the latches. If the injuries were sustained by the appellants Suresh and Gopal in the course of the incident, opportunity ought to have been provided to the prosecution witnesses to explain the said injuries. But on a close look at record we do not find a single suggestion made to any prosecution witness about the injuries received by Suresh and Gopal. In our considered view no additional evidence as suggested by the learned counsel for the appellants, is necessary for the proper decision of the instant appeal. Thus the application under Section 391 Cr.P.C. fails and stands rejected.
5. Coming to the injuries sustained by the deceased Babu Lal, we find that as per autopsy report (Ex.P-15) following antemortem injuries were detected:-
1. Incised wound of size 5 cm. in length 1 cm. breadth skin deep obliquely placed near medical end of left clavicle with clotted blood.
2. Incised stab wound of size 2 x 1/2 cm into thoracic cavity deep 2 cm above Rt. nipple on exploralous wound passes through the 4th inter costal spaced cutting 3rd rib anteriorly. Track passes inside the thoracic cavity piercing parietal & Visceral pleura enter into the middle lobe of Rt. lung of size 2 x 1/4 cm x 1 cm deep.
3. Incised stab wound of size 2 1/2 x 1/2 cm wound placed over below Rt. nipple (12 cm below) on Rt. side front of chest lower 1/3rd part track passes through the 10 inter costal space on Rt. side piercing the parietal & Visceral pleura & enter into the lower lobe of Rt. lung the size of wound of the lung is 1 1/2 x 1/2cm x 1 cm deep large amount of blood present in the Rt. side chest (500 cc).
4. Incised stab wound 2 x 1/2cm x chest cavity deep placed over 7cm below & latral to inj. No. 3 on Rt. latral side of chest lower 1/3rd part track goes through the 11th intercostal space pierces the diaphraym & than enters into the superior surface of Rt. lobe of liver wound size is 2 x 1/2cm x 1cm deep.
5. Incised stab wound 2 x 1/2cm x chest cavity deep placed vertically 9cm latral to the inj. No. 4 on cost latral aspect of Rt. side chest wound goes into the chest cavity.
6. Incised Stab wound of size 2 x 1cm x chest cavity deep on left side front of chest lower 1/3rd part 13cm below left nipple. Wound goes into the parietal cavity deep passes through the 10 intercostal space x then pierces the diaphram x enters into the abdominal cavity where it pierces the superio lateral surface of spleen.
7. Abrasion of size 1 x 1/2cm on left side bridge of nose.
8. Incised wound 2 x 1/2cm x abdoman deep vertically over left side back of abdoman near 12th thoracic vertebrae tissue present underneath the tissues wound goes into abdominal cavity & pierces the left kidney.
9. Incised Wound of size 4 x 1/2cm x muscle deep placed obliquely 1cm above lateral to inj. No. 8 underneath tissue staining present.
10. Incised wound of size 2 x 1/2cm x muscle deep 4cm above & latral to inj. No. 9 – underneath tissue staining.
11. Incised Wound 1 x 1/2cm x Muscle deep placed vertically over left side back near Left 4 vertical.
12. Abrasion 1/2 X 1/2cm placed over left side of check, muscle deep.
The cause of death was shock brought about as a result of cumulative effect of injuries as mentioned in the P.M. report sufficient to cause death in the ordinary course of nature.
6. As per injury report Ex.P-24 Puran PW. 3 had sustained one lacerated wound measuring 1 cm. x 1/4cm below Rt.eye with clotted blood.
7. The learned counsel for the appellants canvassed that there are several infirmities and contradictions in the statements of the alleged eye witnesses and no reliance can be placed on their testimony. It is further urged that in the FIR no overtact was attributed to appellants Suresh, Girdhari, Babulal and Sri Narayan @ Satya Kailash was not even named in the FIR. The alleged recovery of weapon was effected from an open place. The FIR was post investigative document. Delay in lodging the FIR is fatal and possibility of overimplication of the accused cannot be ruled out. It is also contended that only partisan witnesses were examined and their statements are not corroborated by the medical testimony. The statements under Section 313 Cr.P.C. were not recorded in accordance with the provisions of law. The whole investigation is tainted. Reliance has been placed on K.N. Virji and Ors. v. State of Gujrat (1), Juwar Singh v. State of M.P. (2), Bhagirath v. State of Madhya Pradesh (3), and L/NK Meharaj Singh/ Kalu v. State of Uttar Pradesh (4).
8. Per contra, the learned Public Prosecutor supported the impugned judgment and canvassed that all the appellants have been rightly convicted and sentenced. Reliance has been placed on AIR 1996 SC 3041 (5), AIR 1972 SC 2673 (6), AIR 2001 SC 2342 (7), and AIR 1997 SC 1808 (8).
9. We shall now delve deep into the facts and circumstances of the case to find out the tenability of the submissions advanced before us. Turning to the testimony of Pooran PW. 3, it may be noticed that he is the elder brother of the deceased Babu Lal. In his deposition Pooran stated that at around 11.30 p.m. on hearing hue and cry when he came out of the house, he found the appellants armed with Kata, knife, hockey and lathi. They bodily lifted Babulal from the cot and dragged him. Interveners were given beating and Babulal was taken by the appellants to their plot, Suresh inflicted three blows with Katar on the abdomen of deceased Babulal. Deceased was given beating by Gopal and Kailash with knives, Girdhari and Srinarain with sticks and assailant Babu Lal with fists and legs and thereafter they pushed the deceased out side. When Pooran intervened Kailash inflicted knife blow near his right eye. The appellants used to reside in his neighbourhood and play their tape recorder on full volume therefore one month prior to incident the deceased made complaint against them in the police. In the cross examination Pooran stated that Suresh and Gopal used to play their deck loudly and police had threatened them. He further stated that no sooner did the assailants took Babulal to their plot the police arrived and when Babulal was removed to the Hospital police also accompanied him. Pooran was confronted with his police statement (Ex.D-3) and we find inconsistencies between his police statement and statement at the trial in regard the manner of attack by the assailants.
10. Smt. Bhori Devi PW. 1, Prem Devi PW. 2, Jugal Kishore PW. 4 and Kamlesh PW. 5 almost repeated the version narrated by Pooran PW. 3. On a close scrutiny we find certain variations, additions and embellishment in their testimony.
11. Having analysed the material on record carefully we do not see any good reason to accept the argument made on behalf of the appellants to discard the evidence of Pooran (PW. 3) who is material witness and his presence having been established by the fact of his being injured, in the said incident. Presence of Pooran in his house at around 11.30 PM was natural. Merely because his ocular testimony is at variance with his injury report, it does not mean that his credibility is shaked. The Apex Court in Gangadhar Behera v. State of Orissa (9), propounded that undue primacy should not be accorded to hypothetical answer of medical witnesses to exclude eyewitness’ account which has to be tested independently and not treated as the ‘variable’ keeping the medical evidence as “constant”. In Sardul Singh v. State of Haryana (10), it was indicated that if after careful scrutiny the evidence of interested witness is found acceptable and seems to inspire confidence, it can not be discarded totally merely on the ground of certain variations or infirmities or additions and embellishments unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. In the case on hand the variations and embellishments in the testimony of Pooran are not of such nature as to undermine the substratum of the evidence but his evidence is required to be appreciated to find out what part out of it represents the true and correct state of affairs. It is necessary to separate grain from the chaff.
12. On a careful and cautious scrutiny of the testimony of prosecution witnesses we find certain sailient features and pecularities. Smt. Bhori Devi (PW. 1) in her cross examination deposed that it was Kailash who initially inflicted two blows with knife on the chest and one blow on the neck of Babulal. Thereafter she improved her version and stated that Kailash inflicted three knife blows on the chest of Babulal. According to her Gopal inflicted knife blow on the right arm pit whereas Suresh inflicted Kattar blow on the abdomen of Babulal. The injury inflicted by hockey was attributed to Girdhari and Srinarain. In her police statement (Ex. D. 1) she did not narrate the manner of inflicting blows. Smt. Prem Devi PW. 2 in her examination in chief deposed that Kailash and Gopal inflicted injuries with knives, Suresh with kattar, Girdhari with hockey and Babulal gave beating with fists and legs. She disowned major part of her police statement (Ex.D 2). kamlesh PW. 5 deposed in his examination in chief that Suresh inflicted Kattar blow on the abdomen of Babulal. Gopal gave knife blows on his arm pit. Kailash inflicted knife blow on the chest and back. Whereas Girdhari gave lathi blow on his neck. Srinarain also gave lathi blow on the nose whereas Babulal gave beating with fists and legs. He also disowned major part of his police statement (Ex. D.5). The injuries attributed to appellants Suresh, Gopal and Kailash have been corroborated by Dr. P.C. Vyas PW. 8, who conducted the post mortem on the dead body of Babulal. As appellant Kailash was not named in the FIR by the informant Jugal Kishore, we entertain doubt his participation but in so far the allegations against the appellants Suresh and Gopal we find the testimony of prosecution witnesses consistent and trustworthy. In view of material inconsistencies in the testimony of procecu-tion witnesses qua the appellants Girdhari, Babulal and Srinarain @ Satya, the possibility of their overimplication can not be ruled out. The prosecution has failed to prove the charges under Sections 148, 149, and 452 1PC against the appellants beyond reasonable doubt. The incident had occurred in the open plot belonging to appellants Suresh and Gopal and except these two appellants, participation of other appellants in the crime is not established.
13. For the reasons aforementioned we dispose of the appeal in the following terms :
(i) Appeal of Kailash, Girdhari, Babulal son of Kanji, and Narain @ Satya stands allowed. Their conviction under Sections 302/149, 148 and 452 IPC is set aside. They are acquitted of the said charges. They are on bail they need not surrender. Their bail bonds stand cancelled.
(ii) The conviction and sentence of appellants Suresh and Gopal under Section 302 IPC is maintained. They however stand acquitted from the charges under Sections 148 and 452 IPC.
14. The impugned judgment of the learned trial judge is modified as indicated hereinabove.