JUDGMENT
Garg, J.
1. This appeal has been preferred by the accused appellants against the judgment and order dated 9.7.2001 passed by learned Additional Sessions Judge, Gulabpura in Sessions Case No. 94/2000 whereby the learned Additional Sessions Judge, Gulabpura convicted the accused appellants for offence under Section 304(11) I.P.C. in place of Section 302 I.P.C. and sentenced each of them to undergo 7 years’ R.I. and a fine of Rs. 500/- in default to further undergo 1 month’s S.I. and also convicted the accused appellants for offence under Section 323 I.P.C. and sentenced each of them to undergo 1 month’s R.I. Both the sentences were ordered to run concurrently.
2. This appeal arises in the following circumstances :
(i) On 16.9.97 at about 6.55 p.m. Soji S/o Deva Ji (hereinafter referred to as the Deceased) gave Parcha Bayan before Gautam Singh, AS1 of the Police Station Fulia, Dist. Bhilwara stating that in the evening on 16.9.97, he and P.W.3 Jiya wife of his brother were passing through the field along with the cattle and when they reached near Talab, the accused appellants Ramswaroop, Ramdeo, Rughnath, and Soji came and accused appellant Rughnath told him that he had abused his brother Soji yesterday and upon this the deceased told him that he did not abuse, rather his Bhabhi used to abuse and therefore, he also abused. It was further stated by the deceased that the accused appellants Rughnath and Ramdeo were having axe and rest of the accused appellants were armed with lathis and all the accused appellants encircled the deceased and thereafter the accused appellant Rughnath gave an axe blow on his left leg. Accused appellant Ramdeo gave an axe blow on the finger of left hand and, thereafter all started beating him. P.W. 10 Shambhu intervened in the matter and accused appellants also beat P.W.3 Jiya and as a result of beating, the deceased received injuries on his both hands, head and near ear etc. Thereafter P.W.2 Kailash and P.W.5 Ramdhah took him to hospital, Fulia (it may be stated here that the deceased died on the same day i.e. on 16.9.1997 at about 9.05 p.m. and this Parcha Bayan was recorded by Gautam, ASI, but this Gautam has not been produced by the prosecution nor this Parcha Bayan has been got exhibited by the prosecution).
3. On this Parcha Bayan, the police chalked out FIR and started investigation (FIR has also not been got exhibited).
4. During investigation, PW. 3 Jiya was also got medically examined and her injury report is Ex.P/4 and the post mortem report of the deceased is Ex.P/23.
5. The accused appellants Ramswaroop, Ramdeo and Rughnath were arrested on 18.9.97 through Fard Ex.P/9, P/10 and P/I1 respectively and Soji was arrested on 23.9.97 through Fard Ex.P/12.
6. After usual investigation the police submitted challan against the accused persons in the Court of Magistrate for offence under Section 302 I.P.C. from where it was committed to the Court of Additional Sessions Judge, Gulabpura.
7. That on 8.1.98, the learned Additional Sessions Judge framed charges for offence under Fions 302 and 323/34 I.P.C. against the accused appellants who pleaded not guilty and claimed trial.
8. During trial, 23 witnesses were produced by the prosecution and thereafter statements of accused under Section 313 Cr.P.C. were recorded and no evidence was led in defence.
9. After conclusion of the trial, the learned Additional Sessions Judge vide his judgment and order dated 9.7.2001 convicted the accused appellants for offence under Section 304(11) I.P.C. in place of Section 302 I.P.C. and Section 323 I.P.C. and sentenced them as stated above inter alia holding that:
(i) Though in this case, the Investigating Officer has not been produced, but it would not affect the case of the prosecution as the eye witness P.W. 3 Jiya has been produced and her statement was found to be true by the learned Additional Sessions Judge as she was injured witness.
(ii) If FIR has not been proved by the prosecution, it would not affect the case of the prosecution.
(iii) That though Parcha Bayan of the deceased has not been proved by the prosecution, but since presence of P.W.3 Jiya is very much found in the Parcha Bayan, therefore, P.W.3 Jiya is a reliable witness.
(iv) Though P.W.10 Shambhu has been declared hostile, but he also corroborates the case of prosecution as this witness has also shown the presence of P.W.3 Jiya on the spot.
(v) P.W. 11 Ladu has also corroborated the statement of P.W.3 Jiya to some extent.
(vi) From the statements of P.W. 12 Dr. Cyan Prakash Maheshwari and P.W.23 Dr. Satya Narayan, post mortem report Ex.P/23 has been proved and from the statements of P.W. 12 Dr. Cyan Prakash Maheshwari and P.W.23 Dr. Satya Narayan, it is not clear that the injuries received by the deceased were sufficient in the ordinary course of nature to cause death.
(vii) The fact that the deceased died because of the injuries received at the hands of the accused is proved and when the accused appellants caused injuries to the deceased, they had no intention to murder him, but they had knowledge and, therefore, the learned Additional Sessions Judge convicted the accused appellants for offence under Section 304(II) I.P.C. in place of Section 302 I.P.C.
10. Aggrieved from the said judgment, this appeal has been filed by the accused appellants.
11. In this appeal, following submissions have been made on behalf of the accused appellants :
(i) That the learned trial Judge has grossly erred in placing reliance on the testimony of P.W.3 Jiya when her testimony suffers from number of infirmities and she is false and unreliable witness and her statement gets contradicted by her police statement Ex.D/2 oh material points and, therefore, her statement should be disbelieved.
(ii) Parcha Bayan of the deceased on the basis of which FIR was chalked out and the FIR both are not proved by the prosecution and the person who recorded the Parcha Bayan and the IO have also not been produced. In these circumstances the whole of the prosecution case should be thrown out.
(iii) PW.3 Jiya does not attribute any injury to have been caused by the accused appellant Soji and, therefore, the conviction and sentence passed against him deserve to be set aside. Hence, it has been argued on behalf of the appellants that the accused be acquitted and appellants that the accused be acquitted and appeal be allowed.
12. On the contrary, the learned P.P. has opposed the submissions made by the learned counsel for the appellants and submits that the judgment and order passed by the learned trial Judge are based on proper appreciation of evidence and do not call for interference. Hence the appeal be dismissed.
13. I have heard both.
14. To appreciate the above contentions, first medical evidence in this case has to be seen which is found in the statements of P.W. 12 Dr. Gyan Prakash Maheshwari and P.W. 23 Dr. Satya Narayan and the post mortem report of the deceased is Ex.P/23. P.W. 23 Dr. Satya Narayan states that on 17.9.97, he was medical officer in Satelite Hospital, Shahpura and on that day, for the purpose of conducting post mortem of the deceased, a medical board was constituted. He has further stated that the deceased was admitted in the hospital on 16.9.97 at 8.15 p.m. by Dr. S.N. Sharma and at that time, condition of the deceased was very serious and he died on 16.9.97 at 9.05 p.m. He further stated that he found following injuries on the person of the deceased while conducting post mortem report:
(i) contusion 1-1/2″ x 1″ on rl. parietal region.
(ii) Irregular diffuse swelling on It. elbow joint and adjoining area.
(iii) A lacerated wound 1/2″ x 1/6″ on middle phalenxy, of rt. hand.
(iv) A cut wound 4-3/4″ on middle index finger of thumb of left hand.
(v) A1. Wound 3″ x 1/2″ x 1/6″ on middle 1/3 of left leg.
(vi) A I. wound 1″ muscledeep on upper 1/3 of right leg.
(vii) Irregular diffuses swelling on rt. elbow joint and lower part of 1/3 of rt. upper arm.
(viii) Swelling on left hand and lacerated wound 1/2 x 1/6 on dorsum region.
15. P.W. 23 Dr. Satya Narayan further found following fractures:
(i) Fracture of upper 1/3 region of radius of left forearm.
(ii) Fracture of middle phalargeal bone of rt. Index finger.
(iii) Fracture of 3rd metacarpal bone of left thumb.
(iv) Fracture of phalargeal bone of left thumb.
(v) Fracture of middle 1/3rd of libia of left leg.
(vi) Fracture of lower end of humurus of rt. upper arm.
(vii) Fracture of upper 1/3rd of ulna bone of rt. forearm.
16. P.W. 23 Dr. Satya Narayan has further stated that in the Medical Board, apart from him, P.W.12 Dr. Gyan Prakash Maheshwari was also with him and both the doctors were of the opinion that the deceased died due to neurogic failure shock resulting from head injury and multiple bones injuries etc. P.W.12 Dr. Cyan Prakash Maheshwari and P.W.23 Dr. Satya Narayan both have proved the post mortem report Ex.P/23.
17. Thus, from the evidence of these two doctors, it is very much proved that the deceased received injuries mentioned in the post mortem report and it is also proved that he died because of the injuries received by the deceased and thus, the death of the deceased was homicidal in nature.
18. The next point to be considered is whether these injuries were caused by the accused appellants or not.
19. Before proceeding further it may be stated here that in this case Parcha Bayan was recorded by Gautam Singh, ASI of the police Station Fulia and the SHO was Gur Charan and both have not been produced by the prosecution, as a result of which Parcha Bayan and FIR are neither proved nor exhibited by the prosecution. From the order-sheet dated 9.5.2001, it appears that the learned trial Judge closed the evidence of both these witnesses on the ground that they were summoned on many times, but prosecution did not produce them. From the order-sheet dated 3.5.2001, it further appears that out of these two persons, Gautam has retired and it is also mentioned that he was living in Mandalgarh and Gurcharan Singh was in service, ft appears that the learned trial Judge has not taken serious steps to procure the attendance of these two witnesses and rather it appears that he was not sincere on this point and had he been sincere in his efforts, their evidence could have been recorded. Apart from this, the person who was conducting the case on behalf of the prosecution also appears to be negligent in his duties and he could have requested the Court that since these are material witnesses, therefore, time be granted or could have taken steps at him own to procure the attendance of these witnesses.
20. Now the case of the prosecution is proceeding without Parcha Bayan of the deceased and without evidence of the person who recorded Parcha Bayan and without evidence of the person who conducted investigation.
20A. Now the next question is what would be its effect.
21. When the prosecution has neither produced any evidence of the person who made the first information report in Police Station nor the person who wrote it out has been produced, therefore, the first information report cannot be referred to in evidence and there should be no doubt on this point. In this connection, judgment of Hon’ble Supreme Court in the case of State of M.P. v. Soorbhan (1), may be referred to. In these circumstances, the learned trial Judge did not place reliance on so called dying declarations of the deceased as it was not proved by the prosecution and he has done rightly so.
22. In the present case, it may further be stated that since Parcha Bayan was given by the deceased and he died, therefore, the prosecution must prove the Parcha Bayan by the person who have recorded it.
23. The FIR cannot be used as substantial evidence or for corroborating the statement of 3rd party. It can be used either for corroborating or contradicting the statement of lodger of FIR. Since in the present case, Parcha Bayan was given by the deceased and he has died, therefore, his production for the purpose of contradiction and corroboration does not arise, but all the same, it should have been proved by the person who recorded it and this is serious infirmity in this case. But case of the prosecution cannot be thrown out on this ground except that Parcha Bayan cannot be used against the accused appellants and it would not vitiate the conviction. On this point, reliance can be placed on a judgment in the case of Ramdeo vs. State of U.P. (2), wherein it has been held that if FIR was to proved, it would not vitiate the conviction.
23A. In my considered opinion, the non-examination of the injured or the person who recorded the FIR may be lacuna on behalf of the prosecution, but on this ground, the case of the prosecution should not be thrown out if the case is otherwise proved.
24. Now the next question that arises for consideration is that in case FIR is not exhibited nor proved due to various reasons and looking to the facts of the present case where the person who recorded the Parcha Bayan has not been produced nor Parcha Bayan has been exhibited or proved, whether in these circumstances, reliance can be placed on the testimony of P.W. 3 Jiya or not.
25. It may be stated here that it has been argued on behalf of the accused appellants that statement of P.W.3 Jiya cannot be looked into because Parcha Bayan of the deceased has not been proved by the prosecution for want of person who recorded it and for which he placed reliance on the case of Kishan Lal v. State of Rajasthan (3). In this case, the Hon’ble Supreme Court in para 25 of the judgment held as under:
“25. Further the present case is a complaint case. The complainant has not attempted to bring on record the earliest version of the deceased which is said to have been recorded by the police at 4.30 a.m. on the date of incident itself. The prosecution has not examined the Investigating Officer. Prosecution has not thus, proved the guilt of the appellant by any cogent evidence.”
26. In my considered opinion, the facts of the present case and of that case are different in nature because in that case there were two dying declarations and both were in conflict with one another and prosecution failed to prove on record the earlier version of the deceased recorded by the police as IO was not examined. But in the present case, there is nothing like that. Parcha Bayan of the deceased no doubt has not been proved by the prosecution, but name of star witness P.W.3 Jiya is found in that Parcha Bayan of the deceased and there is no other dying declaration of the deceased which has been contradicted with the Parcha Bayan of the deceased.
27. On this point, judgment of Hon’ble Supreme Court in the case of Somappa Vamanappa Madar Shankarappa Ravanappa Kaddi v. State of Mysore (4), may be referred to wherein the Hon’ble Supreme Court has held that the rejection of FIR would not detract the testimony of the eye witnesses which will have to be assessed on its own merits.
28. In light of the observations made by the Hon’ble Supreme Court in the abovementioned case, the statement of P.W.3 Jiya who is star witness in this case can be looked into and can be relied upon if she is otherwise found reliable witness. Now the statement of P.W.3 Jiya has to be examined critically.
29. P.W.3 Jiya is the wife of the brother of the deceased and she has clearly stated in her examination-in-chief that on the fateful, day, she along with the deceased went to the field along with the cattle and in the evening when they were returning, the accused appellants encircled the deceased and at that time, accused appellants Rughnath and Ramdeo were armed with axe and rest two accused appellants were armed with lathis and accused appellant Ramdeo gave an axe blow on the thumb of left hand of the deceased as a result of which it chopped off and fell on the ground. The accused appellant Rughnath gave an axe blow on the left leg and accused appellant Ram Swaroop gave severe blow by lathi on the head of the deceased, as a result of which, the deceased fell on the ground and thereafter all the four accused appellants beat the deceased (she has not assigned any specific role to the accused appellant Soji). She has further stated that when she tried to save the deceased, the accused appellant Ram Swaroop gave lathi blow on his right hand and all the accused appellants put the deceased in pit and thereafter she informed P.W.19 Shiv Narayan and informed others also. Thereafter deceased we is taken to hospital. In cross-examination, she admits following facts :
(i) two to three days before the incident the deceased told the accused appellant Soji that his wife used to tell something wrong to P.W. 3 Jiya.
(ii) The wife of accused appellant Soji used to tell to P. W. 3 Jiya as to why she was so near to the deceased.
(iii) It is wrong to say that she was near to the deceased but people of the village were angry and such rumour was in the village, but this rumour was spread by the wife of accused appellant Soji.
(iv) In the police statement Ex.D/2 (wrongly mentioned as Ex.D/1) the fact that the accused appellant Rughnath was having lathi is wrongly written. Similarly the fact that accused appellant Ramdeo was having lathi is also wrongly written in Ex.D/2.
30. The learned counsel for the accused appellants has mainly stressed on the point that these two accused appellants Rughnath and Ramdeo were armed with axe as per her statement given in the Court, but in the police statement Ex.D/2 she has stated that they were having lathis, therefore, her statement should be disbelieved as it is a major contradiction and that goes to the root of the case.
31. In my opinion, no doubt that there is contradiction in the police Statement of P.W. 3 Jiya (Ex.D/2) and in the statement recorded in the Court, on the point as to which weapon was being held by the accused appellants Ramdeo and Rughnath at the time of occurrence but P.W.3 Jiya has clearly stated that she did not tell the police like that and, therefore, the version which has been given by her in the Court appears to be more correct one and in this case since none of the police officer has been produced, therefore, it cannot be said that investigation of this case was fair one. Apart from this since P.W.3 Jiya is injured witness and her injury report is Ex.P/4, her presence on the spot cannot be doubted. From this point of view also statement of P.W. 3 Jiya appears to be true version and reliance can be placed on the statement of P.W. 3 Jiya as it does not suffer from basic infirmities and if there are minor contradictions and omissions in the statement of P.W. 3 Jiya, they are natural one and for that her statement cannot be regarded as false one.
32. Apart from this, statement of P.W.3 Jiya also gets corroboration from the medical evidence which is found in the statements of P.W. 12 Dr. Cyan Prakash Maheshwari and P.W.23 Dr. Satya Narayan as well as the post mortem report Ex.P/23.
32A. The next question is whether on the solitary statement of witness, conviction can be placed or not.
33. Conviction can be placed on the solitary statement of a witness. The Hon’ble Supreme Court in so many cases after interpreting Section 134 of the Indian Evidence Act, has stated that evidence has to be weighed and not counted and propounded following three principles :
(i) As a general rule, a court can and may act on the testimony of a single witness, though uncorroborated. One credible witness out weight the testimony of a number of other witnesses of indifferent character.
(ii) Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness whose evidence is that of an accomplice or of an analogous character.
(iii) Whether corroboration of the testimony of single witness is or in not necessary, must depend upon facts and circumstances of each case and no general rule can be land down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
34. If the evidence of P.W. 3 Jiya is examined having regard to the surrounding circumstances, her statement appears to be consistent and in corroboration with the medical evidence. Therefore, she is a reliable witness and learned Additional Sessions Judge has rightly placed reliance on her statement.
35. So far as presence, participation and causing injuries by accused appellants Ramswaroop, Ramdeo and Rughnath is concerned, the same is well proved from the statement of P.W.3 Jiya and medical evidence. Therefore, findings of conviction recorded by learned Additional Sessions Judge against accused appellants Ram Swaroop, Ramdeo and Rughnath are liable to be confirmed one and their appeal is liable to be dismissed.
36. But from the statement of P.W.3 Jiya, it appears that she has only shown the presence of accused appellant Soji but has not attributed any injury to have been caused by him to the deceased. Therefore, in these circumstances, the case of the accused appellant Soji has come in doubt as to whether he was merely present on the spot or was sharing the common intention with other accused. If there is any doubt, the benefit must go to the accused. Hence, the accused appellant Soji is entitled to acquittal and the finding of (earned Additional Sessions Judge, Gulabpura whereby he convicted and sentenced the accused appellant Soji for offence under Section 304(II) I.P.C. are liable to be set aside and the appeal of the accused appellant Soji is liable to be allowed,
On the point of Sentence
37. Looking to the fact that the accused appellants Ram Swaroop, Ramdeo and Rughnath committed the offence of culpable homicide not amounting to murder punishable under Section 304(U) I.P.C., the ends of justice would be met if the accused appellants Ram. Swaroop, Ramdeo and Rughnath are sentenced to a period of 6 years’ R.I. in place of 7 years’ R.I. and the order of sentence passed by the learned Additional Sessions Judge, Gulabpura is liable to be altered accordingly.
38. In the result, the appeal filed by the accused appellants Ram Swaroop, Ramdeo, Rughnath and Soji is disposed of in following manner:
The conviction of the accused appellants Ramswaroop, Ramdeo and Rughnath for offence under Section 304 and 323 I.P.C. recorded by the learned Additional Sessions Judge Gulabpura vide his judgment dated 9.7.2001 is maintained and appeal of the accused appellants Ramswaroop, Ramdeo and Rughnath against their conviction is dismissed.
However, the accused appellants Ramswaroop, Ramdeo and Rughnath are sentenced to 6 years’ R.I. in place of 7 year’s R.I. for offence under Sections 304(II) I.P.C. and the order of sentence dated 9.7.2001 passed by the learned Additional Sessions Judge, Gulabpura stands modified accordingly. The order of sentence for offence under Section 323 I.P.C. passed by the learned Additional Sessions Judge, Gulabpura vide his order dated 9.7.2001 is maintained.
The appeal of accused appellant Soji is allowed and conviction and sentence of the accused appellant Soji for offence under Section 304(11) and Section 323 I.P.C. recorded by the learned Additional Sessions Judge, Gulabpura vide his judgment dated 9.7.2001 are set aside and he is acquitted of the charges for offence under Sections 304(II) and 323 I.P.C.
Since the accused appellant Soji is in jail, he be released forthwith if not wanted in any other case.