JUDGMENT
O.P. Bishnoi, J.
1. The five appellants–Dalu, Prabhu, Deva, Uda and Smt. Chandi have preferred this appeal against a judgment of the Additional Sessions Judge, Chittorgarh, dated 25.4.1986, whereby the appellants were found guilty under Sections 148, 325/149 and 304 Part-II read with Section 149 of the IPC. For the offence under Section 148 of the IPC, each one has been awarded rigorous imprisonment for two years. For the offence under Section 325/149, IPC, three years’ rigorous imprisonment, a fine of Rs. 100/- and additional simple imprisonment for one month, in lieu of fine, has been awarded. Seven years’ rigorous imprisonment, a fine of Rs. 100/- and additional simple imprisonment for one month each, in lieu of fine, has been awarded for the offence punishable under Section 304 Part-II, IPC read with Section 149 of the IPC. Principal sentences have been ordered to run concurrently.
2. The incident allegedly occurred on 3.10.1981, at 6 P.W., in the territory of village Chogavadi, about 5 kms. away from Police Station, Gangrar. According to the prosecution story, PW-6 Narain Singh, PW-7 Megha, PW-8 Gopi and the deceased Chatra were returning from Chittorgarh, after attending a Court case in the Court of S.D.M., Chittor, to their village Nimari Khera. Gopi and the deceased Chatra were riding on one bicycle. Narain Singh and Megha were riding on another bicycle. When they reached the place of occurrence, the five appellants were allegedly in wait and pounced upon them. Chatra and Gopi received injures. Narain Singh and Megha watched the whole incident, standing nearby. A hue and cry was raised and lot many people from village Chogavadi soon appeared on the scene. Seeing them, the five appellants took to their heels. The two injured persons, according to the prosecution story, were first carried to Gangrar by PW-14 Gordhan Singh and others and were then taken to Chittorgarh hospital for treatment. Meanwhile, the brother of the deceased Chatra (PW-1 Soji) and others were informed of the incident and, on next day, i.e., 4.10.1981, PW-1 Soji along with PW-4 Ratan Lal lodged the FIR (Ex.P/1) at Police Station, Gangrar, where a case under Sections 147, 341, 324 and 325 of the I.P.C. was registered. Seven days after the incident on 10.10.1981, Chatra died in the hospital, during treatment and, accordingly, Section 302 of the IPC was added and ultimately, a challan under Sections 147, 341, 325, 307, 302 read with Section 149 of the IPC was filed in the Court of the Judicial Magistrate, at Chittorgarh, from where it was committed to the said trial Court. Smt. Chandi was charged for the offences under Sections 147, 323, 325 and 302/149 of the IPC. The other four accused-persons were charged for the offences under Sections 148, 323, 325 and 302 of the IPC. The accused-persons pleaded not guilty to the said charges. The learned Additional Public Prosecutor then opened his case and examined PW-1 Soji, PW-2 Magniram, PW-3 Devilal, PW-4 Ratan Lal, PW-5 Nathu Singh, PW-6 Narain Singh, PW-7 Megha, PW-8 Gopi, PW-9 Devisingh, PW-10 Mohan, PW-11 Banshi Lal, PW-12 Amar Kanth, PW-13 Dr. R.D. Bhatt, PW-14 Gordhan Singh and PW-15 Dr. Uttam Singh, in support of the prosecution story. The statements of the five accused-persons were then recorded under Section 313 of the Cr.P.C. and all pleaded innocence and stated that on account of enmity of a land dispute, they have been falsely implicated. DW-1 Ratanlal, DW-2 Pyara, DW-3 Madhu and DW-4 Satish were examined, in defence. DW-1 Ratanlal deposed to the effect that from Chittorgarh to Chogavadi, where the incident took place, it takes more than four hours to reach. DW-2 Pyara, a resident of village Pipalia, deposed to the effect that the police had come to arrest Dalu, but Dalu, according to the witness, was in village Pipalia, for the whole of the day. No date has been given by the witness and it appears that he came to establish a plea of alibi in respect of Dalu to the effect that on the day of the incident, Dalu never left the village during the day and, thus, could not be present, at the place of the occurrence. DW-3 Madhu deposed that he saw Gopi, Chatra and 2-3 Banjaras consuming liquor and then fighting with each other. According to the witness, the accused-persons were not there. DW-4 Satish, a resident of village Bassi, has stated that the appellants Devaji and Udailal, on 3.4.1981, were with him at his house to attend a party.
3. The learned Court then heard the arguments and delivered the judgment on 25.4.1986. The appellants were acquitted of the charge under Section 302/149 of the I.P.C., but were found guilty in the manner as indicated in the beginning. Feeling aggrieved, the appellants have filed this appeal.
4. The contention of the learned Counsel for the appellant is two-fold; firstly, he has argued that the assailants were unknown persons and could not be recognised and that was the reason that no FIR was filed on 3.10.1981. Since there was enmity with the appellants on account of a land dispute, they were implicated, after due deliberation and the FIR (Ex.P/1) was filed against the appellants by PW-1 Soji who is a brother of the deceased Chatra. The learned Counsel has contended that the report (Ex.P/1) actually was not filed on 4.10.1981, but was filed actually, on 5.10.1981 and was antedated, in order to reduce the period of inordinate delay. In this respect, my attention has been drawn to the formal FIR (Ex.P/4) which reached the concerned Magistrate on 5.10.1981. In the alternative, the learned Counsel has argued that the number of the assailants has been inflated and innocent persons (including Smt. Chandi) have deliberately been added in order to put to harassment as many as persons, including the said unmarried sister of Dalu and Prabhu. The learned Counsel has also argued that the finding of guilt under Section 304 Part-II of the IPC is unsustainable and at the most, finding of guilt under Section 325 or 325/34 could be recorded. The learned Public Prosecutor has tried to support the conclusions drawn by the learned trial Court.
5. PW-5 Nathu Singh, PW-10 and PW-11 Banshilal are ‘Motbir’ witnesses. PW-9 Devisingh, Constable, is a courier, who carried certain packets from the police station to the Forensic Science Laboratory at Jaipur. PW-13 Dr. R.D. Bhatt has deposed that on 4.10.1981, he examined Chatra and Gopi and prepared the injury reports (Ex.P/32 and Ex.P/33) respectively in respect of the two injured persons. According to the witness, all the injuries on the persons of Chatra and Gopi were caused by blunt objects and no injury was caused by sharp edged weapon. In all, Gopi received six injuries and out of the six, only one on the left forearm was found to be grievous in nature. Chatra, according to the witness, received four simple injuries and other four on forearm, right leg and two injuries on the left leg were found to be grievous in nature. PW-15 Dr. Uttam Singh has deposed that on 10.10.1981, the postmortem on the dead body of Chatra was conducted by him and he found that the cause of death was secondary shock due to the injuries on his person and, accordingly, the postmortem report (Ex.P/37) was prepared by him.
6. PW-1 Soji is the brother of the deceased Chatra. He has stated that he was informed by the Bhagwan Kalal about the incident. Bhagwan Kalal allegedly told him that certain ‘Jats’ of village Pipalia had given beating to Gopi and Chatra and both the injured persons are at the police station. According to the witness, he along with Bhoor Singh, Narain Singh and Ratan Lal reached Police Station, Gangrar, where Chatra and Gopi were lying in the bullock cart in injured condition. Gopi was conscious and Chatra was unconscious. According to the witness, a motor vehicle, belonging to some Kalal, was hired and the two injured persons were taken to Chittorgarh hospital. The witness stated that next morning, he and Ratan Lal proceeded to Police Station, Gangrar, where a written FIR (Ex.P/1) was lodged by him.
7. PW-2 Magniram and PW-3 Devilal supported the prosecution story to the extent that the injured were seen by them, but none of them implicated any of the accused-persons and both were declared hostile. According to the prosecution story, the injured Gopi gave the names of all the five assailants. However, according to the two witnesses, Gopi simply told that they were belaboured by some ‘Jats’ belonging to village Pipalia. PW-4 Ratan Lal is a cousin of the injured Gopi and has stated that while he was at the Bus Stand Gangrar, Magniram, Devilal and a ‘Banjara’ brought the two injured persons in a bullock cart and from there, he took the two in a bus to Chittorgarh hospital and next day, he accompanied PW-1 Soji to the Police Station, Gangrar, where the FIR was lodged. According to the witness, in the hospital at Chittorgarh, he had a conversation with the injured Gopi, who gave him the names of the five accused-persons as assailants. PW-6 Narain Singh and PW-7 Megha have deposed against the appellants and both have claimed that they were following the injured persons on a bicycle and the whole incident was seen by them. PW-8 Gopi is the injured and he has also deposed against the appellants.
8. PW-14 Gordhan Singh, resident of Chogavadi, according to the prosecution story, is the person who was one of the first persons of village Chogavadi to reach the place of the occurrence and was informed by the two injured persons that certain ‘Jats’ of Pipalia village were responsible for causing injuries to them. The witness deposed that the injured persons requested him to take them to the police station. However, he denied that any details of the incident were furnished to him by any of the injured persons and was declared hostile. PW-12 Amarkanth, A.S.I., is the Investigating Officer, who has stated that on 4.10.1981, the FIR (Ex.P/1) was produced before him by PW-1 Soji and he registered the case. Further, he has stated that he immediately proceeded to the place of occurrence and prepared the documents, including the site map (Ex.P/12) and site note (Ex.P/13) and other documents. The witness has stated that after the investigation was over, the challan was filed against the appellants.
9. So far as the finding of guilt under Section 304 Part-II read with Section 149 of the IPC is concerned, it can be said at the very outset that the same cannot be sustained. The nature of injuries to Chatra and Gopi is not such, on the basis of which any of the appellants could be found guilty under Section 304 Part-II of the IPC. As pointed out earlier, all the injuries are by blunt objects, although one of the accused-persons is said to have used a ‘Kulhari’ during the incident. Most of the injuries are simple and none of the grievous injury is on the vital parts of the injured persons. Injuries which are grievous, are either on the legs or on the forearms, The death has occurred some seven days after the incident and on the basis of the injuries received, the case does not travel beyond the offence punishable under Section 325 of the IPC. I, therefore, find that there was no justification to give a finding of guilt in respect of the offence punishable under Section 304 Part-II of the IPC.
10. So far as the reliability of the prosecution story in respect of participation of all the appellants in the incident is concerned, I am of the view that the evidence which has come, cannot be termed as honest and there is every reason to believe that Smt. Chandi and may be one or two more appellants have been implicated falsely. Similarly, there is every reason to believe that PW-6 Narain Singh and PW-7 Megha, who have been put up as eye-witnesses, were actually not present at the place of the incident and after some deliberation, it was decided that they should be produced as eye-witnesses. There is inordinate delay in lodging the FIR and there is no satisfactory explanation to believe that there was any good reason in not lodging the FIR promptly. As pointed out earlier, the incident occurred on 3.10.1981 at 6 p.m. and the evidence is to the effect that both the injured persons were taken immediately to Police Station, Gangrar. PW-1 Soji has specifically stated that he received the information from Bhangwan Kalal to the effect that Gopi and Chatra were injured by certain ‘Jats’ of village Pipalia. He has stated that he along with Bhoor Singh, Narain Singh and Ratan Lal immediately proceeded to Police Station, Gangrar and found the injured persons lying at the police station in a bullock cart. He has further stated that Gopi was conscious, while Chatra was unconscious. Needless to say that during this period, it was natural highly desirable on the part of Gopi to lodge the FIR. It is taken that Gopi was too injured to lodge the FIR, then it was natural on the part of the persons who carried the injured persons to the police station to inform the police in respect of the incident. It cannot be believed that inspite of the fact that the two injured remained at the police station for a considerable period, the police people at Police Station, Gangrar were not knowing about the same. Inspite of all this, if no FIR was lodged on 3.10.1981, it becomes a circumstance which casts a serious doubt about the reliability of the prosecution story. According to Soji, he hired a motor vehicle belonging to some Kalal and took the injured persons to Chittorgarh. No reason is given as to why he injured persons were not taken to the hospital at Gangrar. He sates that in the early morning of 04.10.1981, he proceeded with Ratanlal to Police Station, Gangrar and lodged the FIR (Ex.P/1). However, the FIR (Ex.P/1) was not lodged in the morning or in the forenoon, but it was lodged in the afternoon at 1 p.m. Not only this, the formal FIR (Ex.P/4) was not transmitted to the concerned Magistrate on 4.10.1981 and was sent on 5.10.1981 which provides strength to the defence argument that actually, no FIR was lodged on 4.10.1981 and the same was lodged on 5.10.1981, but dishonestly antedated by the police. My attention is drawn towards other documents, like the site map (Ex.P/12) and site report (Ex.P/13). Both these documents are dated 5.10.1981 and there is no document which was prepared on 4.10.1981. There is, thus, reason to believe that the FIR was not lodged on 4.10.1981, but was lodged on 5.10.1981 and the intervening period was utilised in deliberating to decide as to who should be implicated in the case.
11. PW-1 Soji is the person, who earlier, on 3.10.1981 attended the Court of the S.D.M., Chittorgarh, along with Narain Singh, Megha, Gopi and the deceased. His testimony is to the effect that the accused-persons also attended the said Court on 3.10.1981. He was asked during the cross-examination, about the mode of transport used by the accused-persons to reach the Court of the S.D.M. He stated that all the male accused-persons, excluding Smt. Chandi came on bicycles. He does not say that Smt. Chandi came to Chittorgarh on 3.10.1981. In these circumstances, the participation of Smt. Chandi, in the incident, becomes highly suspect and the defence contention becomes acceptable that she was implicated, just with a motive to harass an unmarried girl of the family of the accused-persons. The incident neither occurred at Chittorgarh, nor in the village, where the parties live. The incident occurred some 20 kms. away from Chittorgarh on the way and, in these circumstances, there remains no explanation as to when and where Smt. Chandi joined other assailants. PW-6 Narain Singh and PW-7 Megha, according to the prosecution story, were eye-witnesses and they were standing near the site of the incident, in order to watch the whole incident. PW-7 Megha is a brother of the deceased Chatra, Still, Narain Singh and Megha kept standing near the place of incident like uninterested observers and did not try to intervene. Nor any of them went to the police station to lodge the FIR. According to Megha PW-7, he and Narain Singh felt frightened and ran away to their own village. He has stated that the villagers from Chogavadi came rushing to the spot, but inspite of this, they did not stop to attend to the injured persons and made their escape good. This type of conduct is highly suspect and unbelievable. According to PW-1 Soji, when he received the information about the incident from Bhagwan Kalal, PW-6 Narain Singh accompanied him to Police Station, Gangrar. Needless to say that if PW-6 Narain Singh was an eye-witness, PW-1 Soji would learn about the incident from Narain Singh and not from Bhagwan Kalal. PW-6 Narainsingh’s testimony is totally opposite to the testimony of PW-7 Megha. PW-6 Narain Singh does not say that they left the scene without attending the injured persons. His testimony is to the effect that they remained at the place of occurrence and both of them attended the injured persons and transported them to Gangrar and, thereafter, to the hospital at Chittorgarh. It this is to be believed, then it was natural that PW-6 Narain Singh and PW-7 Megha would lodge the FIR at Police Station, Gangrar, where, admittedly, the injured persons remained at the police station for a considerable time, till PW-1 Soji came from the village in order to take them to the hospital. From the Testimony of PW-1 Soji, it is apparent that Narain Singh reached Gangrar from Eklingpur in the company of Soji and the testimony of Narain Singh to the effect that he witnessed the incident along with Megha stands falsified. The statement (Ex.D/4) of Megha PW-7, who is the brother of the deceased Chatra, was recorded by the police not on 4.10.1981 or 5.10.1981, but on 9.10.1981. This is a circumstance which establishes that Megha, though cited as an eye-witness, was not even available to police, prior to 9.10.1981, for recording his statement under Section 161 of the Cr.P.C. I find that Narain Singh and Megha were not eye-witnesses of the incident and both of them are created witnesses. As pointed out earlier, according to prosecution story, lot many people from village Chogavadi appeared on the scene of the occurrence, after they heard the hue and cry. PW-14 Gordhan Singh, PW-2 Magni Ram and PW-3 Devilal and other persons admittedly appeared at the place of occurrence, when the beating was going on. However, none of them corroborated the prosecution story against the appellant and all the three have been declared hostile. PW-14 Gordhan Singh’s statement (Ex.P/36) is significant in this respect. Ex.P/36 was recorded on 5.10.1981 and it does not contain the names of the appellants and there is a mention that certain ‘Jats’ of village Pipalia were involved in the incident. Needless to say that if any of the appellants was a participant in the incident, it was natural that Gopi, who was conscious, would tell the names of appellants to PW-14 Gordhan Singh and the fact that none of the appellants was named in Ex.P/36 provides support to the defence contention that the assailants were actually not recognized at the time of the incident. There is no mention in Ex.P/36 that any woman was also involved in the incident. PW-1 Soji has deposed that Bhagwan Kalal informed him that certain ‘Jats’ of village Pipalia were involved in the incident. Here also, there was no mention of any woman participant.
12. There is a specific allegation in the FIR (Ex.P/1) that the accused-appellant Uda inflicted injuries with the help of a ‘Kulhari’. However, as pointed out earlier, there is no injury which was caused by a sharp edged weapon. The witnesses, during their depositions, in the Court, have stated that Smt. Chandi caused injuries with a ‘Lathi’. This is contrary to the allegation made in the FIR (Ex.P/1), wherein there is no allegation that Smt. Chandi caused injury to any person, nor it is mentioned that she wielded any ‘Lathi’. The allegation against her is to the effect that there were stones with her and she was ‘ready’ to cause injury. PW-6 Narain Singh has stated that all the five appellants had ‘Lathies’ and all the five inflicted injuries to the injured persons. PW-7 Megha has deposed that Uda was having a ‘Kulhari’ which was used for causing injuries. In his statement (Ex.D/4) recorded under Section 161 of the Cr.P.C., he does not say that ‘Kulhari’ was used. According to Megha and Gopi, Smt. Chandi wielded a ‘Lathi’ with which she caused injuries to Chatra and Gopi. In the FIR (Ex.P/1), Soji has written that from Gangrar to Chittorgarh the injured persons were transported in a bus. However, in the Court, PW-1 Soji has stated that a motor vehicle belonging to some Kalal was utilized to transport the injured persons to Chittorgarh. Admittedly, the complainant side was using two bicycles when they were attacked at the place of the incident. It is strange that these bicycles were never recovered and there is no explanation as to what happened to the bicycles, if the four persons were actually riding the bicycles upto the place of the incident. Bhagwan Kalal is the person who informed Soji about the incident, but he has not been examined. PW-1 Soji’s deposition is contrary to his police statement (Ex.D/1). Similarly, Narain Singh and Megha have contradicted their police statements (Ex.D/3 & 4) which were recorded under Section 161 of the Cr.P.C. The site map (Ex.P/12) and the site note (Ex.P/13) were prepared on 5.10.1981 at the instance of Banshi Lal and Mangu Singh, who were admittedly not eye witnesses. The two documetns were not prepared in the presence of PW-6 Narain Singh and PW-7 Megha which, according to the prosecution story, were eye-witnesses of the incident.
13. In the totality of the circumstances, I find that there is no corroboration of testimony of PW-8 Gopi and even Gopi does not seem to be a truthful witness. The contention of the defence to the effect that the assailants were not recognized at the time of the incident, seems to be very plausible than the prosecution story. There are strong circumstances to suggest that the number of the assailants, who actually participated, have been inflated and innocent persons (including Smt. Chandi), who did not participate, have been added to the list of the accused-persons. I find it difficult to separate the chaff from the grain and the appellants are entitled to the benefit of doubt.
14. The learned Public Prosecutor, at the end, has argued that the Investigating Officer, PW-12 Amarkanth, on 9.10.1991, recorded the dying declaration of the injured Chatra and on the basis of Ex.P/16, the appellants can be found guilty in the case. I have perused the so-called dying declaration (Ex.P/16) and I am left in little doubt that the document is nothing, but a proof of mental dishonesty on the part of PW-12 Amarkanth. He has exceeded all the legal niceties in fabricating Ex.P/16. According to Amarkanth (PW/12), the statement (Ex.P/16) was recorded on 9.10.1981, because, prior to that, the injured Chatra was not in a fit state of mind to get his statement recorded and when he was fit enough on 9.10.1981, the statement was recorded by him. To the question that why a Magistrate was not requested to get the statement recorded, the witnesses promptly replied that the witness was in the danger of immediate death and hence, no request was made to the Magistrate, for doing the needful. The answer is strange. The statement was allegedly recorded on 9.10.1981 and the witness was alive till 10.10.1981. Amarkanth was at liberty to request the Magistrate or the treating Doctor to record the statement of the injured, even after the recording of the statement (Ex.P/16) by him. No such effort was made. There is no endorsement of the Doctor concerned on Ex.P/16 to the effect that the injured was fit enough to get his statement recorded. No reason is given as to why the Doctor was not consulted when the patient was in the hospital and the Doctor was available. Ex.P/16 does not disclose the time at which the statement was allegedly recorded. Strangely enough, the Investigating Officer got the statement (Ex.P/16) signed from one Nathu Singh and got it thumb marked from PW 7 Megha who is a brother of the deceased. Nathu Singh has not been examined and Megha does not say that the injured ever regained his consciousness, after the incident, till his death. Megha does not say that any statement of the deceased was ever recorded in the hospital by Amarkanth. As a matter of fact, there is no witness, who has stated that Chatra regained his consciousness prior to his death. Consequently, I find that it was not the deceased who got his statement recorded, but PW 12 Amarkanth, on his own, recorded Ex.P/16 and got it attested not from the Doctor but from Nathu Singh and Megha. Thus, Ex.P/16 can be of no help to the prosecution. The only purpose, for which it can be utilized is to say that the Investigating Officer of the case was not impartial, while investigating and he is guilty of professional misconduct in preparing documents like Ex.P/16.
15. Consequently, the appeal is allowed. The impugned judgment dated 25.4.1986 is set aside. All the five appellants are acquitted of the charges.