Mohan Singh & Ors. Vs. State of Rajasthan
D.B. Criminal (Jail) Appeal No. 70/2004
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
JUDGMENT
Mohan Singh & ors. Versus State of Rajasthan.
D.B. Criminal (Jail) Appeal No.70/2004 against
the judgment and order dated 06-12-2003
passed by the Additional Sessions Judge (Fast
Track), Rajsamand, Camp Udaipur, in Sessions
Case No. 27/2003.
...
Date of Judgment: June 22, 2010
PRESENT
HON'BLE MR. JUSTICE GOVIND MATHUR.
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI.
Sarvashri Deepak Menaria, Shambhoo Singh Rathore and Kalu
Ram Bhati, for the appellant-accused.
Mr. A.R. Nikub, Public Prosecutor for the State.
BY THE COURT: (Per Hon'ble Joshi, J.)
By this D.B. Criminal (Jail) Appeal, appellants Mohan
Singh, Mane Singh alias Maniya and Devi Singh, have assailed
the judgment and order dated 06-12-2003 passed by the
Additional Sessions Judge (Fast Track), Rajsamand, Camp
Udaipur (for short, “the trial Court” hereinafter), whereby the
appellants have been convicted for the offences under Sections
302/34 and 341 IPC and sentenced to imprisonment for life and
a fine of Rs.1000/-, in default of payment of fine to further
Mohan Singh & Ors. Vs. State of Rajasthan
D.B. Criminal (Jail) Appeal No. 70/2004
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undergo three months simple imprisonment for the offence
under Section 302/34 IPC; and one months’ simple
imprisonment for the offence under Section 341 IPC.
The facts of the case, in succinct, are that on
02-12-2002, complainant Manna Lal Gamar lodged a written
report with Police Station, Ogana to the effect that at 8.00 p.m.
on the day before, his father Rajmal, who was coming home
alongwith Bheru Singh and Dharam Chand, was attacked by
some unknown persons and murdered while attacking with
sharp-edged weapons and stones. On this report, FIR
No.122/2002 under Sections 341, 302 IPC was registered and
the investigation ensued. After conclusion of investigation, the
police arraigned five persons for the said offence in the Court of
the Additional Chief Judicial Magistrate, Jhadol, from where the
case was committed to the Court of Sessions Judge, Udaipur and
ultimately the case was transferred to the trial Court.
The learned trial Court, framed charges against the
accused under Sections 148, 341, 302/149 IPC, to which they
denied the charges and claimed to be tried. The prosecution, in
support of its case, examined 23 witnesses and produced
documentary evidence from EX.P/1 to EX.P/40. The statement
of the appellants alongwith co-accused were recorded under
section 313 Cr.P.C., wherein they denied allegations and claimed
to be tried. In defence, neither any oral nor documentary
evidence was adduced by the appellants and co-accused.
Mohan Singh & Ors. Vs. State of Rajasthan
D.B. Criminal (Jail) Appeal No. 70/2004
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After hearing the learned counsel for the accused and
the learned Public Prosecutor and appreciating the evidence on
record, the learned trial Court, vide impugned judgment and
order dated 06-12-2003, acquitted other co-accused, viz. Kishna
and Poon Singh, of the offences under Sections 341 and 302/34
IPC; however convicted and sentenced the appellants as stated
above. Hence this criminal jail appeal by the present appellants.
We have heard learned counsel for the appellants
and the learned Public Prosecutor for the State, carefully gone
through the impugned judgment and order, as also the record of
the case.
The main contention of the learned counsel for the
appellants is that FIR (Ex.P.1) was lodged at the Police Station
Ogana on 02.12.2002 in respect of the alleged incident of
01.12.2002 said to happen at 8.00 p.m. and the FIR (Ex.P.1)
does not contain the names of the accused appellants and it is
only stated that 4 unknown person committed murder of the
father of the complainant Manna Lal (P.W.2) with stones and
some sharp-edged weapon. He has further contended that as
per the prosecution story, there were 2 eye-witnesses,
namely, P.W.1 Dharmchand and P.W.10 Bheru Singh and as
per the cross-examination available on record of these 2
witnesses, before filing of the FIR at the police station by
Manna Lal (P.W.2), the fact of causing injuries by accused
persons, namely, Mane Singh, Mohan Singh, Devi Singh, Poon
Mohan Singh & Ors. Vs. State of Rajasthan
D.B. Criminal (Jail) Appeal No. 70/2004
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Singh and Kishna, was disclosed to the FIR lodger Manna Lal
(P.W.2) and still the fact of non-bearing of the names of the
accused in the FIR makes the story of the prosecution
doubtful, unreliable and untrustworthy. Further it is
submitted that vide judgment dated 06.12.2003, the learned
trial court acquitted two accused persons, namely, Kishna S/o
Lala Gamar and Poon Singh S/o Dhool Singh Garasia out of 5
accused persons and now in this appeal this court is to
appreciate the evidence against 3 appellants, namely, Devi
Singh S/o Dhan Singh, Mane Singh @ Maniya S/o Nathu Singh
Garasia and Mohan Singh S/o Chain Singh Garasia. Hence, it
is urged that the accused appellants may be acquitted from
the charges levelled against them by allowing this appeal.
Learned Public Prosecutor while controverting the
above arguments of the learned counsel for the appellants
vehemently argued that the FIR is only a document to move
the police in motion for investigation and it is not necessary
that it should bear each and every minute fact of the incident
or the names of the accused persons. It may be fatal in
appropriated cases, but it depends upon the facts of each case
and particularly in this case the FIR lodger Manna Lal (P.W.2)
was not an eye-witness and although the eye-witnesses
Dharmchand (P.W.1) and Bheru Singh (P.W.10) stated in their
cross-examination that they have informed the son of the
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D.B. Criminal (Jail) Appeal No. 70/2004
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deceased, who is the complainant in this case, regarding the
overt act of each accused and the names of all the person who
were responsible for causing the death of the deceased, but
the mental status of the complainant or near relatives of the
deceased sometimes may not be so that they can incorporate
the names of the accused in the FIR and not mentioning the
names of the persons causing injuries or death in itself is no
ground for not relying upon the entire prosecution story.
Hence, it is urged that the judgment and sentence passed by
the learned trial court requires no interference and this appeal
deserves to be dismissed.
We have given our thoughtful consideration to the
rival contentions made by both the parties and carefully
scanned and evaluated the evidence available on record. The
learned trial court while recording the order of conviction held
the accused appellants Devi Singh, Mane Singh @ Maniya and
Mohan Singh guilty under Section 341 and 302/34 IPC. There
is evidence on record of 2 eye-witnesses, namely, P.W.1
Dharmchand and P.W.10 Bheru Singh that for 3 to 4 days
they were detained by the police and they have categorically
asserted in the evidence that they informed the complainant
Manna Lal (P.W.2) about the whole incident and the names of
the accused persons on the same day (date of the incident).
P.W.2 Mannalal who happens to be the son of the
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D.B. Criminal (Jail) Appeal No. 70/2004
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deceased and also lodged the first information report
corroborates the evidence of both the eye-witnesses, namely,
P.W.1 Dharmchand and P.W.10 Bheru Singh on the point that
both these witnesses disclosed the names of the accused
persons on the same day (date of incident). In the cross-
examination, P.W.2 Mannalal categorically deposed that while
he visited the site of incident, he was informed about the
names of the accused by P.W.1 Dharmchand and P.W.10
Bheru Singh. He further stated in his cross-examination that
he lodged the first information report against unknown
persons and in the same breath he further stated that he has
written the names of the accused persons on the back of the
first information report, but the first information report does
not bear the names of the accused persons.
If we read the first information report (Ex.P.1) in
conjunction with the statement of the two eye-witnesses,
namely, P.W.1 Dharmchand and P.W.10 Bheru Singh, this fact is
well-proved that before filing of the first information report in the
police station, the fact of the names of the accused persons was
well within the knowledge of P.W.2 Manna Lal. Moreover there
are inherent contradictions in the statements of the Investigating
Officer Chhagan Lal (P.W.22) and other witnesses, namely,
P.W.1 Dharmchand, P.W.2 Mannalal and P.W.10 Bheru Singh,
regarding the fact of availability of the eye-witnesses to the
Investigating Officer for recording of their statements. As per
Mohan Singh & Ors. Vs. State of Rajasthan
D.B. Criminal (Jail) Appeal No. 70/2004
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the version available on record of the Investigating Officer
Chhagan Lal (P.W.22), both the eye-witnesses could be available
to him only on the next day of the incident for recording their
statements during investigation, whereas P.W.1 Dharmchand,
P.W.2 Mannalal and P.W.10 Bheru Singh categorically and
emphatically deposed that on the date of incident, police came to
the site and they were present there also.
So far as the contention as urged by the learned
Public Prosecutor that it is well-settled principle of law that first
information report is only a document to move the police in
motion and it is not necessary that it should contain every
minute details of the incident/crime, but again it depends on the
facts of each case. There will be cases in which names of the
assailants may not come to the knowledge of the first
information lodger before filing it in the police station and in
those cases it is not necessary that first information report
should bear the names of the accused persons. In this particular
case, if we conjointly read the statements of the witnesses,
namely, P.W.1 Dharmchand, P.W.2 Mannalal, P.W.10 Bheru
Singh and P.W.22 Chhagan Lal, it appears that the Investigating
Officer wanted to suppress the fact of knowledge of the names of
the accused persons prior to filing of the first information report
and thus, the version of P.W.22 Chhagan Lal creates serious
doubts about the prosecution story. In this case, since the
names of the accused persons were within the knowledge of the
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D.B. Criminal (Jail) Appeal No. 70/2004
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first information lodger, i.e. P.W.2 Mannalal, and in view of his
statement that on the back of the report he wrote the names of
the accused, the contention as urged by the learned Public
Prosecutor does not stand.
Apart from undue delay in lodging the first
information report which has not been satisfactorily explained,
there is another reason also to throw the testimony of P.W.1
Dharmchand and P.W.10 Bheru Singh because there is
irreconcilable inconsistency between their oral statement and the
statement contained in the FIR. The names of both the eye-
witnesses find mention in the FIR, but the names of the culprits
are significantly omitted. As per the FIR, the assailants were
unknown persons and on the contrary, these two eye-witnesses
as also P.W.2 Mannalal who lodged the FIR have categorically
stated on oath that soon after arrival, these two eye-witnesses
disclosed the names of the assailants also while narrating the
incident to the lodger of the FIR P.W.2 Mannalal and at the same
time non-bearing of the names of the assailants in the FIR
creates serious doubts on the prosecution story.
Secondly, the two eye-witnesses, namely, P.W.1
Dharmchand and P.W.10 Bheru Singh were suspects of the crime
and therefore, they were also detained in the police custody as
admitted by both these witnesses, thus, being interested in
shifting the guilt to others they could tell anything untrue to any
extent and they had motive to involve any other person in place
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of themselves. The motive as put forth in the prosecution story
is also of weak nature.
The ocular evidence is not reliable and after its
exclusion, circumstantial evidence as led by the prosecution also
falls flat on the floor as the circumstantial evidence alone is not
of such nature which can connect the accused appellants with
the crime.
In the entirety of things, it can be said that the
prosecution has failed to prove the guilt to the hilt. The evidence
as it exist demand extending of benefit of doubt to the accused
appellants.
Resultantly, on the discussion made above, benefit
of doubt is given to the accused appellants and thereby the
appeal preferred by the appellants Devi Singh S/o Dhan
Singh, Mane Singh @ Maniya S/o Nathu Singh Garasia and
Mohan Singh S/o Chain Singh Garasia is allowed and
judgment of conviction and order awarding sentence passed
by Additional Sessions Judge (Fast Track), Rajsamand, Camp
Udaipur in Sessions Case No. 27/2003 is set aside and the
appellants named above are acquitted of the charges levelled
against them. The appellants named above be set at liberty
forthwith if not required in any other case.
(KAILASH CHANDRA JOSHI), J. (GOVIND MATHUR), J.
mcs