1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
CRIMINAL APPEAL No. 418 of 1983
BANSHI LAL
V/S
STATE
Date of Judgment : 17th April, 2009
PRESENT
HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI C M TOTLA,J.
Mr. MK GARG, Mr.PRADEEP SHAH, for the appellant
Mr. ANIL UPADHYAY, PP, for the respondent.
BY THE COURT: (PER HON'BLE GUPTA,J.)
The appellant Banshi Lal, by this appeal seeks to
challenge the judgment of the learned Sessions Judge,
Udaipur dated 15.11.1983, passed in Sessions Case No.28/83,
convicting him for the offence under Section 302 IPC, and
sentencing him to imprisonment for life along with fine of
Rs.100/-.
According to the prosecution, the necessary facts
are, that on 24.10.1982, one Uday Singh lodged a First
Report at Police Station Ghantaghar, informing that
informant’s brother Jagannath Singh was employed on the
2
shop of accused Banshi Lal in Bombay and that some two
months ago, as there was some dispute between the accused
and his brother Jagannath, his brother came to Udaipur and
sought employment at the shop of Raju Nai. It was then
alleged that some 10-15 days ago accused Banshi Lal, who
lives in Ganeshghati, came to Udaipur, as grandfather of
Banshi Lal expired, and for the last 8-10 days there was
altercation between the two. With this it was alleged that
on that day at about 3 in the afternoon, the informant’s
brother was going to the shop of Raju, after seeing the
shooting of a film, which was being enacted in Jagdish
Chowk, while the informant was also going from his house,
at Gadiadevra to Jadiyon Ki Hol after taking lunch, at that
time, Deepak Gaur and Ram Lal Khatik met him, coming from
opposite direction from towards Ganeshghati, and informed
him, that Banshi Lal has inflicted knife injuries to
Jagannath Singh, who is lying near Hanumanji temple, and
that Radheyshyam and Madan Lal are standing there.
Thereupon the informant rushed to the spot, and found
Jagannath Singh lying upside down, in the pool of blood,
and was bleeding. The victim was taken in a tempo by Deepak
and Devi Lal Constable to General Hospital in emergency
ward, where doctor declared him dead. Then leaving Deepak
and Radheyshyam at General Hospital, he has come to lodge
the report. On this report a case for offence under Section
302 IPC was registered, and after completing investigation,
charge sheet was submitted, and the case was committed.
3
Learned trial Court framed charge under Section
302 IPC against the accused appellant, who obviously denied
it. During trial, the prosecution examined 18 witnesses,
including 4 purportedly eye-witnesses, being P.W.4, P.W.7,
P.W.8, P.W.13, and the doctor, who conducted post mortem
report has been produced as P.W.3 Dr. G.L. Dad. The
prosecution tendered in evidence some 25 documents, while
defence tendered in evidence some police statements of some
witnesses being Ex.D1 to D5 and also examined D.W.1
Raghunath Lal in defence. After so completing the trial,
the learned trial Court convicted and sentenced the accused
as above.
The learned trial Court found that P.W.8 and
P.W.13 did not support the prosecution case and therefore,
they were declared hostile. However, implicit reliance was
placed on P.W.4 and P.W.7, being eye-witnesses and P.W.1
the informant. Likewise, the learned trial Court relied
upon the circumstance, about one cover of the knife, being
Article 4, having been found on the spot, which cover did
fit in to the knife Article 3 recovered from the possession
of the accused, on his information and at his instance.
Though it was found, that knife Article 3 is not stained
with blood, and according to the evidence of P.W.3 Dr. G.L.
Dad, the injuries found on the person of the deceased could
not be caused with that knife. Learned trial court also
4
relied upon the circumstance, that the accused remained
absconded for a period of more than 2 months, and was
arrested only on 12.1.1983, of course, the evidence of
D.W.1, who was produced to establish the plea of alibi of
accused was disbelieved, and thus the accused was convicted.
Assailing the impugned judgment it was contended
by learned counsel for the appellant, that the two eye-
witnesses P.W.4 and 7 have erroneously been relied upon by
learned trial Court, their evidence is full of
discrepancies, not only contradictory inter-se, but also
stands contradicted by the other evidence available on
record. They being chance witnesses, the contradictions
clearly show, that they are figuring as eye-witnesses,
despite having not at all seen the incident. It was then
submitted that the First Information Report in this case
purports to have been lodged on 24.10.82, but then it has
been received by the Magistrate only on 29.10.82, and there
is no satisfactory explanation for all this long delay,
rather this time was consumed by the Investigating Agency
in planting or cooking up witnesses to be eye-witnesses,
and for that purpose, the time was spent in making search
of friends or acquaintances of the deceased, and after
completion of that search, stories had been cooked up by
antedating the FIR. While the learned trial Court has
considered it as one of the circumstance, that the FIR was
lodged immediately, and therein the names of these two
5
witnesses were there, thus, the whole approach is bad.
On the other hand, learned Public Prosecutor
supported the impugned judgment.
We have considered the submissions, and have gone
through the record very closely.
To start with we may take the narration of the
incident, as made by the two eye-witnesses P.W.4 and 7, and
then would proceed to examine, as to whether their
testimony inspires any confidence, or as to whether they
were at all the eye-witnesses. P.W.4 Ram Lal has deposed
that on the fateful day a shooting of an English Film was
going on at Ghantaghar, and towards Jagdish Chowk,
therefore, there was crowd. At about 2-3 PM he was going
from towards Ghantaghar to towards Ganeshghati, on the shop
of his brother Banshi Khatik, which is on the downward
slope of Ganeshghati. When he proceeded bit ahead of
Ghantaghar, near Dhabaiji Ki Haweli he heard cries, and saw
the crowd. Then he went there and saw, that Jagannath Singh
was bleeding, and Banshi Lal, accused present in the Court,
who was armed with knife, was inflicting blows with knife
to Jagannath Singh. He had seen Banshi Lal inflicting two
knife blows to Jagannath Singh on the chest. He had also
seen Deepak Tempowala (P.W.7) there. Then he went to call
Uday Singh (P.W.1), the elder brother of Jagannath Singh,
6
and when he had negotiated the up-gradient of Ganeshghati,
he met Uday Singh, who was coming from his house, who lives
at the other side of slope. He stated that Uday Singh’s
brother has been inflicted injuries with knife by Banshi
Lal. He stated that he does not know Madan Lal and
Radheyshyam (P.W.13 and P.W.8 respectively). Uday Singh
accompanied him on the spot. Jagannath Singh was lying on
the road, and Uday Singh told, he is going to Police
Station. The Police Station is at a distance about 50 fts,
that day there was huge crowd in Police Station also, on
account of the shooting. Then police came on the spot.
Police was brought by Uday Singh. Then Police people called
a tempo and carried Jagannath to hospital in the tempo. In
other tempo, the witness went to the hospital. He has
stated that Jagannath Singh earlier used to ply auto-
rickshaw. Then he has stated that Jagannath Singh was
working as a goldsmith preparing gold and silver ornaments
at the shop of Banshi Lal in Bombay. The witness had seen
Jagannath working on the shop of Banshi Lal at Bombay.
Article 4 cover of the knife was lying at the place, where
Jagannath Singh was lying. Then he has identified the
articles being garments of Jagannath Singh, has proved
certain photographs. Then he has stated that in the photo,
two injuries X & Y, are visible on the chest, which he saw
being inflicted. Then in cross-examination he has stated
that on the place of incident there is Abadi, and people
might be living there. He is not acquainted with the
7
locality as he lives in Khatikwada. He has some slight
friendship with Jagannath, and he knows him for the last 6
months. Jagannath had gone to Bombay some 4-5 months
before, and after one month thereafter this witness has
gone to Bombay, and remained there for 4-5 days, and stayed
at the shop of accused Banshi Lal itself. He has then
stated that he had seen Jagannath at Udaipur since about
one month before the incident, and used to see him at an
interval of about 4 to 5 days. He has admitted that he is
facing some 3-4 prosecutions, but denied to be under police
surveillance. He stated that on the spot there were 10-12
people, out of whom he knows only Deepak, whom he could
spot out later, and cannot say as to when Deepak appeared
on the spot. However, he saw him near Hanumanji temple.
Then he has stated that the head of Jagannath Singh was
towards Ghantaghar and legs were towards Ganeshghati. Then
he has stated that a woman vegetable vendor was sitting,
but looking to the quarrel, she also ran away. He has
stated that Deepak is not his friend but he knew him
because of Uday Singh, and does not know as to where Deepak
lives. Then he has stated that Deepak asked the witness, as
to where is he going, to which the witness replied, that he
is going to call the brother of Jagannath Singh. Thereupon
Deepak followed him. He has denied the suggestion to be
giving false statement on account of his friendship with
Uday Singh and Jagannath Singh. He saw Deepak’s tempo
standing at Ghantaghar, at that time, the tempo brought by
8
police was not of Deepak, and that in that tempo Jagannath
Singh and Deepak went, while he (we) went in tempo of
Deepak, by picking up some other driver. He has stated that
tempos are available at Ghantaghar and there from one
driver was picked up, as the driver asked, as to what had
happened, and where Deepak has gone, thereupon the witness
told, that Deepak has gone to hospital and in tempo of
Deepak, he should be dropped at the hospital. Police had
brought tempo from towards Ghantaghar. Then he has stated
that Uday Singh had returned after going to police station
after 8-10 minutes, Uday Singh, Deepak and Police people
had put Jagannath Singh in the tempo, in which, apart from
Jagannath Singh, four persons were there on the rear seat,
and one was sitting by the side of driver, which comprised
of two police people, one Deepak, and Uday Singh. Since the
witness did not see inside the tempo, he cannot say as to
in what position Jagannath was carried, i.e. sitting or
lying. Then he has stated, that he cannot say as to since
how long scuffle was continuing between the deceased and
the accused. However, when he reached, the scuffle was
going on, and in his presence Banshi Lal inflicted two
knife injuries. Then he has stated, that Jagannath was
running while Banshi Lal accused was chasing. Then
Jagannath Singh fell down, one knife injury was inflicted
while Jagannath was running, and more injuries were caused
with knife after Jagannath Singh fell down. Banshi Lal
continued to inflict knife injuries. The witness
9
went to call Uday Singh, he did not go to intervene because
seeing Banshi Lal armed with knife he got frightened. He
has maintained, that he saw knife in the hand of Banshi
Lal, which was 10 inch long. Then he also seen the cover of
the knife made of leather, but then he cannot identify
knife properly. Then he has stated, that in the mortuary
police has asked him to come to police station for
interrogation. However, when his statements were recorded
Uday Singh did not come to police Station, rather Uday
Singh was called the next day. He has denied the
suggestion, that the tempo which Jagannath Singh used to
ply, belonged to his brother, rather that belonged to his
community person. Then he was confronted with some portion
of his police statement being Ex.D/1, being A to B, wherein
he deposed about Radheyshyam and Madan Lal being present on
the spot. Then some questions were put to him about Banshi
Lal’s shop in Bombay.
Then we come to the evidence of P.W.7 Deepak Gaur,
the other alleged eye-witness. He has stated, that he had
known Jagannath Singh and also knows the accused present in
the Court. The witness plies auto-rickshaw. Then he has
stated that on the fateful day after dropping a passenger
on the top of Ganeshghati, he was coming down the slope,
and saw Banshi Lal and Jagannath Singh grappling with each
other, there was a crowd, he parked his tempo behind
Hanuman temple. He did not see any weapon in the hand of
10
Banshi Lal, rather Banshi Lal and Jagannath Singh were
grappling with hands only. There one Ram Lal was also
there. Then he called Jagannath Singh’s elder brother Uday
Singh. When he went to Ganeshghati, Uday Singh met him on
the way on the top of the Ghati, and both these persons
came down to the place of incident, at that place they
found Jagannath Singh lying on the ground in a pool of
blood. Banshi Lal was not available there. On that day
there was a shooting of some English film, and there was
huge crowd between the Clock Tower to City Palace, the
shops on Ganeshghati were also closed, Hanumanji temple is
at a distance about 20-25 fts., the scuffle was taking
place on the road, Jagannath Singh was having stab injuries
on the chest, and was bleeding. Then he has proved the
photographs. In cross-examination, the witness has deposed
that he is plying tempo for last 6 years. Jagannath Singh
was also plying tempo. Ram Lal was also occasionally plying
tempo, the place of incident is at a distance about 1½ mile
from his residence. At the time when Jagannath Singh and
Banshi Lal were grappling, some 25-30 people had collected,
out of whom he knows only Ram Lal, who was standing near
him. Then he has stated, that when the witness started
going, Ram Lal asked him as to where is he going, to which
the witness replied, that he is going to call the brother
of the victim. Then Ram Lal accompanied him. He has deposed
to be knowing Uday Lal for last 2 – 2½ years. His tempo was
parked outside the shops towards Mahawat Wadi, which place
11
is at a distance about 20-25 paces towards the Ghantaghar.
Then he has stated that as soon as they reached at the top
of Ganeshghati they found Uday Lal, at the place where
Jagannath Singh was lying, some 50-60 people had collected,
then he has stated, that he, Uday Lal and one constable put
Jagannath Singh in the tempo. He does not know, as to
wherefrom the tempo came, and who brought it. In that
tempo, three persons were there, being the witness, Uday
Lal, constable, and Jagannath Singh. He does not know, as
to who was driving the tempo. According to this witness,
Jagannath Singh was put on the knees of the passengers of
the tempo, in which process the garments of the witness and
Uday Lal got smeared with blood, though he does not know,
as to whether garments of constable also received blood
stains or not. He has then stated, that when they reached
back with Uday Lal, another tempo was available on the
spot, where Jagannath Singh was lying, and on account of
crowd, he could not carry the victim in his tempo. After
leaving Jagannath to hospital, after around 1½ hour he came
back to take away his tempo. His statement was recorded by
police on the next day, at that time Uday Lal was not with
him. Ram Lal was examined in his presence. Then he was
confronted with his portion A to B of his police statement
Ex.D/2, which he disowned, wherein he has stated that he
had parked his tempo towards Mahawat Badi and kept sitting
therein. Then he has stated, that he was sitting in the
tempo for the last 5 – 10 minutes. Then he has denied the
12
suggestion about giving false statement on account of his
acquaintance with Jagannath Singh and his brother. He
stated, that Uday Lal had called him to give statement in
police station, at that time, Ram Lal was standing outside.
Then he has stated that he had left Ram Lal on the spot,
and when after dropping Jagannath in the hospital, he was
returning, he found Ram Lal standing outside the hospital.
Then in the end of the cross-examination he has stated,
that he did not see the stab injuries on Jagannath on the
spot, but had seen them at the house of Uday Lal.
Then we may better come to the evidence of P.W.1
Uday Singh. He has stated that Jagannath Singh was his
younger brother and was working at shop of Raju Nai as a
silversmith, and was earlier working alike with accused
Banshi Lal, present in the Court. Prior to the incident
deceased had come from Bombay to Udaipur. Banshi Lal who
works in Bombay had come to Udaipur some 7-8 days before
the incident, and thereafter there had been some dispute
between the two, on the aspect of cash dealings. According
to him, shop of Raju Nai, where Jagannath Singh was working
is situated near Karjali house, which is on the way between
Ganeshghati and Mahawat Wadi. With this he has stated, that
about 5-6 months ago at about 3-3.15 in the noon, some
shooting of English film was going on in Jagdish Chowk, the
witness had come to his house to take lunch, and was
returning on the job, from his house situated at Gadiadevra
13
through Ganeshghati when he reached at top of Ghati, Deepak
and Ram Lal came, and informed, that his brother has been
stabbed by Banshi Lal near Hanumanji temple in Ganeshghati.
Then he rushed, and found his brother lying upside down,
and bleeding from the chest. He did not notice as to who
other persons were near him. Then he has stated that police
people had also come there, some 40-50 people had
collected, and Deepak and Ram Lal also followed him. Then
the witness and Deepak etc. put Jagannath Singh in the
tempo and carried him to hospital. In that tempo this
witness, Deepak, and Devi Lal were there, and in another
tempo, which was following, Radheyshyam, Madan Lal, Ram Lal
and one constable were there. Jagannath Singh was declared
dead in the hospital. Then he went to police station to
lodge a report, which is Ex.P/1. He has proved the
signatures thereon. Then he has proved various memos. In
cross-examination he has deposed, that he saw Ram Lal today
down stairs in the Court, and did not see him outside the
Court. Inquest report was prepared at about 5 PM. The
garments of the witness got smeared with blood in the
process of putting his brother in the tempo. The victim was
put on the legs of all the occupants of the tempo, head was
on the legs of Deepak, who was sitting on the right hand
side, Devi Lal was also in the tempo. He has stated that
police station is near Ganeshghati, where by chance one
tempo was found. He has maintained, that he called the
tempo, whose driver was not his acquaintance. He has denied
14
the suggestion, about his having not carried the victim to
hospital in the tempo, rather to have reached hospital at
about 7 in the evening. Then he has stated that he told the
police that his brother had been killed. Thereupon the
police people entertained the report. He has maintained,
that he told the police, that his brother has been killed
by Banshi Lal. Thereupon his signatures were obtained on
the report. He has stated, that on the spot, head of
Jagannath Singh was near drain towards the south and was
lying outside the shop of a Bohra, which is at a distance
of 30-35 paces from the Hanumanji temple. Deepak and Ram
Lal were coming to call him from his house, who are in his
acquaintance for 2½ – 3 years. They know his house, because
of the deceased, and might be his friends also. He has
stated, that Deepak plies tempo, while his brother was also
earlier plying tempo. Then he has stated that the police
station is at a distance about 20-25 paces from the place,
where Jagannath Singh was lying. Jagannath Singh was
straightway carried to hospital, and not to police station,
he was wearing the same garments when he went to the police
station to lodge the report, and did not notice as to
whether they were stained with blood or not. Then he
maintained, that he had gone all alone to lodge the report.
Ram Lal and Deepak did not accompany him. His statements
were recorded on that very day, while statements of Deepak
and Ram Lal were recorded at about 6 in the evening. He has
stated, that from hospital he first went to his house, and
15
thereafter after about 10-15 minutes he went to police
station, and thereafter, Ram Lal and Deepak reached the
police station. He has stated that when his statements were
being recorded, these two persons came to police station on
their own. He has denied the suggestion, about his having
disclosed the names of Deepak and Ram Lal to the police
after three days of the incident.
From a collective reading of the statements of
these three witnesses, it is more than clear, that the
evidence of the three witnesses is thoroughly discrepant,
and demolishes each other. According to P.W.7 the accused
was not armed with any weapon, and the accused and deceased
were grappling with hands only. Obviously when he claims
that P.W.4 and 7 both went together to call Uday Singh, and
when P.W.4 wants the Court to believe that in his presence
two knife injuries were caused on the chest of the
deceased, obviously it could not be, that one witness would
see the accused empty handed, and the other witness would
see the accused causing stab injuries to the victim, if the
two witnesses were there on the spot, had seen the
incident. Then according to P.W.4 the victim was running,
and while so running one knife blow was caused to the
victim, and after the victim fell down more injuries with
knife were caused. It is nowhere the case, that there was
any scuffle, and after the scuffle, the victim ran away,
and in that process, the occurrence occurred as P.W. 4
16
wants the Court to believe, and then the two witnesses went
to fetch Uday Singh. Likewise if the version of P.W.4 were
required to be believed, then obviously injuries must have
been on the back portion of the deceased, while the two
injuries No.1 and 2, rather all injuries, are on the front
portion of the body of the deceased. Body was lying upside
down, and obviously there is no injury available on the
person, which might have been caused after the deceased had
fallen down. This, in our view, is a very material
contradiction between the statements of P.W.4 and 7, and
the prosecution has not clarified the things, in re-
examination of the witness P.W.7. Then both these witnesses
P.W.4 and 7 are over enthusiastic to assert, by deposing
himself as the truthful witness, and in that process, had
demolished each others’ evidence. In this regard it may be
observed, that according to P.W.4 it was he, who has
started to go to call Uday Singh, whereupon Deepak asked
him, as to where is he going and on his disclosing to be
going to fetch Uday Singh, Deepak accompanied him. As
against this, according to P.W.7 Deepak, he started moving
to call Uday Singh, whereupon Ram Lal asked him as to where
is he going, and on his giving out to be going to fetch
Uday Singh, Ram Lal accompanied him. It is good that Uday
Singh has deposed that both these witnesses had met him
together, perhaps otherwise the things would have been
still worst. Then the evidence of the two witnesses, if
read in conjunction with statement of P.W.1 Uday Singh, on
17
the aspect, as to who brought the tempo, in which tempo
Jagannath Singh was carried, who was travelling in that
tempo along with Jagannath Singh, where-from the other
tempo came, whose the other tempo was, and who was the
occupants of that other tempo, the evidence on record is
thoroughly discrepant. In this regard according to P.W.1,
in one tempo Uday Singh, Deepak and Devi Lal were there,
wherein Jagannath was carried, while in the tempo
following, Radheyshyam, Madan Lal and one constable was
there and he does not know, as to, to whom that tempo
belonged. As against this, according to P.W.4, Uday Singh
brought police man, which was not called by Uday Singh,
rather according to Uday Singh, police people came on their
own, and police people called the tempo, and carried
Jagannath to hospital. This witness Ram Lal went to
hospital in another tempo. Then in cross-examination he has
tried to clarify, that in one tempo wherein Jagannath Singh
was carried, four persons were sitting on the rear seat,
being two police people, one Deepak and one Uday Singh, and
that, that tempo was brought by police people. Still as
against all these, according to P.W.7, in examination-in-
chef, he does not say anything about victim being carried
to hospital. However, in cross-examination he has stated,
that he does not know, as to where from the tempo came,
wherein Jagannath Singh was carried, and who brought that
tempo. However, in that tempo three persons were sitting,
being himself, Uday Lal, Constable and Jagannath Singh.
18
According to him Jagannath Singh was put on the knees of
the passengers, and his and Uday Lal’s garments got smeared
with blood. Then he has stated, that he had gone to fetch
his own tempo after 1 ½ hour. He does not talk of any other
tempo following them etc. Thus he contradicts all these
witnesses.
Further there is evidence of P.W.6 Shanker Lal,
and P.W.11 Devi Lal. These two persons are the constables
of the Police. According to P.W.6, on that day he was
posted as a Constable, and was detailed on duty at the
place of shooting. Along with him Devi Lal was also on
duty. Then at about 3 in the noon, he heard that some
dispute has arisen towards Ganeshghati, thereupon he along
with Devi Lal went towards Ganeshghati, saw a big crowd
there, and people were telling that there has been
stabbing. It was learnt that Jagannath Singh has received
knife injuries, who was lying on the road upside down,
outside the shop of Subhash Chandra and was bleeding. Then
he along with Devi Lal put Jagannath Singh in the tempo and
carried him to hospital. When these two constables reached
the spot Uday Singh the elder brother of the victim had
also come, who also accompanied to hospital. In the
hospital it was told that Jagannath Singh has died. In
cross-examination he has stated, that head of Jagannath
Singh was towards west and feet was towards the east. At
that time, some 50 people had collected. Then he has
19
stated, that he and Devi Lal had put Jagannath Singh in the
tempo, which tempo was coming from towards Ganeshghati. The
tempo arrived there after 5 minutes after arrival of these
witnesses, and tempowala came on his own. In the tempo
there was 2-3 persons only, being the witness, Devi Lal and
Jagannath Singh. Jagannath Singh was made to lie down on
the knees of the passengers in the tempo. Jagannath Singh’s
brother also came to hospital, following them in some other
tempo, and met the witness outside the mortuary.
Then we come to the evidence of Devi Lal P.W.11,
the other constable. He has also deposed, that on 24.10.82
he was posted as constable at police station Ghantaghar,
and was detailed for traffic management till completion of
shooting. He along with Shanker Lal was detailed at Maji Ki
Bawdi. At about 3 in the noon there was a cry that stabbing
has taken place at Ganeshghati, and there has been some
dispute. Thereupon he and Shanker Lal rushed to
Ganeshghati, and found on the shop of Subhash Murdia,
Jagannath Singh lying upside down, and bleeding profusely.
On their arrival, Jagannath Singh’s brother Uday Singh came
on the spot. At some distance from the victim one tempo had
stopped, who was called, therein Jagannath Singh was
carried to hospital, and doctors declared him dead. He has
proved the photographs, and article 4. In cross-examination
he could not be shaken.
20
Then P.W.5 Satyanarayn is the person, who was
plying tempo No. RJY 9395. He has deposed, that when he
came in the tempo just ahead of Hanumanji temple, he saw a
person lying on the road upside down in a pool of blood.
Since there was not enough passage to pass, he had to stop.
Then police people asked him to carry the victim to
hospital, and put him in his tempo. After showing the
photograph Ex.P/7 he has identified, that this was the same
person who was carried in the tempo. Thus, this P.W.5 is
the person, in whose tempo, the deceased was carried to
hospital. In cross-examination he has stated, that in his
tempo some 5-6 persons travelled. The victim was put on the
ground, some 3-4 persons set on the rear seat, and one
person set by his side. The occupants included two police
people, and he does not know, the other two persons.
Then significantly, at this place it may be
noticed, that P.W.4 Ram Lal has deposed in cross-
examination, that he (we) went in the tempo of Deepak, and
to drive that tempo some other driver was procured.
Deepak’s tempo was standing at the clock tower. After
Jagannath Singh’s being taken away to hospital, this
witness went to Ghantaghar, where there is a tempo stand,
where-from he picked up a driver, who asked him as to what
had happened, to which he gave out, that a dispute has
taken place, then he asked as to where Deepak has gone, to
which he replied that Deepak has gone to hospital, and
21
requested him to drop to hospital in the tempo of Deepak.
Thus, the whole story of Deepak coming to the
spot after 1-½ hour to pick up his tempo falls flat, and
the story as given out by different witnesses, narrated
above is re-reconcilable, as to who accompanied the victim
to hospital, in what condition the victim was carried,
because P.W. 1 and 7 want the Court to believe, that the
victim was carried, being kept on the legs, with the
result, that their cloths got smeared with blood, while the
person in whose tempo the victim was carried, being P.W.5,
deposed a completely otherwise story. Obviously attempt on
the part of the P.W.4 and 7 is to establish, their
reliability, which rather stands negatived. Significantly
they have not produced their blood stained cloths to the
police, to lend assurance. Likewise, according to P.W.6 the
constable Shanker Lal, they carried the victim to hospital,
while Uday Singh and Deepak want the Court to believe, that
it was they, who carried the injured to hospital.
All these things acquire still greater significance from the fact, that admittedly before the
victim was removed from the place of incident, police had
come. According to P.W.4, Uday Singh had gone to police
station, and called the police people, while according to
P.W.1, police people had also come on the spot, obviously
meaning thereby, that he does not want to say, that he did
22
not go to call them. According to P.W.6 and 11, while on
duty they heard the rumour about the incident, and they
reached the spot on their own, and it was after their
arrival, that Uday Singh came. It is obvious, that whatever
be the situation, commission of a cognisable office did
come to be disclosed before the victim was moved to
hospital, and when the police people were there, and as the
prosecution wants the Court to believe, that P.W.4 and 7
were the eye-witnesses, the only natural conduct was, that
the report should have been immediately lodged at the
police station, which was on the way to hospital, and at
least it should have been very well conveyed to the two
constables, who were the persons in authority that the
accused had stabbed the victim in their presence, but
admittedly this was not done.
In this background, the fact that this FIR
reaches the Magistrate as late as on 29th October acquires
greater significance, and creates a grave suspicion about
its genuineness. The possibilities cannot be ruled out,
that this time was consumed in cooking up witnesses, and
antedated FIR was prepared.
True it is, that relative witnesses, or chance
witnesses, or acquaintance witnesses, cannot be, and need
not be, discarded on that ground alone, but here the
circumstances are glaring, which show, that only that type
23
of witnesses have been projected to figure as eye-
witnesses, despite their not being the eye-witnesses. It is
well-nigh possible, that the two constables P.W.6 and 11,
on hearing the rumour went on the spot, found the victim
lying in an injured condition, and at that time, his
brother also having come there, the victim may have been
carried to hospital, where he was declared dead. Then
probably case diary was kept open, formal investigation was
conducted, and after the prosecution could succeed in
manufacturing, or planting, eye-witnesses, the FIR was
registered, and was sent to Magistrate only on 29.10.82. It
may be observed here that the requirement of law is to
forthwith forward the report to the Magistrate, and this
forwarding is not dependent on it being a working day,
rather the FIR is to be forwarded even to the residence of
the Magistrate.
Over and above all this, there is a million dollar
circumstance, viz. that the knife article 3 is a single
edged knife, while from a look at the photographs Ex.7 and
11, read with the post mortem report, and the statement of
doctor P.W.3, it is clear, that the wound found on the
person of the deceased, being injury No. 1 and 2, is an
oval shaped wound, with all margins clear-cut, and
according to P.W.3, such an injury could not be caused by
the weapon like knife article 3. Rather the weapon should
be having both edges to be sharp, and also having sharp
24
tip. In this background, as found by learned trial Court,
that knife article 3 was not stained with blood, and was
not sent for forensic examination either. If the two
witnesses P.W.4 and 7 had seen the incident, they could
have very well at least deposed, that the accused was not
having this knife article 3, but was having a double edged
and sharp tipped knife, which they have not deposed.
So far as the circumstance relied upon by the
learned trial Court, about absconding of the accused is
concerned, it would suffice to say, that even according to
the prosecution, the accused carries on business in Bombay,
though he is a resident of Udaipur, and had come to Udaipur
on account of the bereavement in his family, comprising of
a death of his grandfather. In such circumstances, if he
had gone back to Bombay, and could be arrested after
sometime, it cannot be said, that the accused was
absconding, with an incrementing mind. Thus, the learned
trial Court was in error in relying upon this circumstance
as well.
The net result of the aforesaid discussion is,
that in our view the prosecution has failed to prove beyond
reasonable doubt, that the offence was committed by the
appellant accused Banshi Lal only. Consequently, the appeal
is allowed. The impugned judgment is set aside, and the
appellant Banshi Lal is acquitted of the charge. He is on
25
bail, his bail bonds are cancelled, and he need not
surrender.
( C M TOTLA ),J. ( N P GUPTA ),J.