JUDGMENT
Amarjeet Chaudhary, J.
1. Ram Phal appellant was charged Under Section 302 of the Indian Penal Code for having committed the murder of Om Parkash on 2-8-1992 in the area of Butana. He was accordingly tried and after conclusion of trial was convicted Under Section 302 of the Indian Penal Code by the Additional Sessions Judge, Sonepat vide his judgment dated 26-8-1994 and sentenced to undergo life imprisonment and to pay a fine of Rs. 30,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two years. The trial Court further directed that the entire amount of fine be disbursed to Smt. Shanti who is mother of deceased.
2. Feeling aggrieved from the said judgment, the appellant has filed this appeal.
3. The prosecution story, in brief, is that P.W. Krishan Kumar and his younger brother Om Parkash were running a Hair Dresser Saloon at the bus stand of village Butana. On August 2, 1992, when they were working at the shop one Prem came there at about 9.00 a.m. Prem wanted Krishan Kumar and Om Parkash to do his shaving and hair cutting on priority basis. There were three or four other customers including one Ram Phal present at the shop. Krishan Kumar and Om Parkash did not accede to his request. Therefore, Prem went to appellant Ram Phal who was also doing the work of hair cutting and shaving opposite to their shop. At about 10/10.30 a.m. appellant came to the shop of Krishan Kumar and protested as to why he was charging lesser rates from the customers. The appellant also started abusing him. Krishan Kumar told the appellant that Prem was a poor man and for this reason, he was charging less amount The appellant turned furious and proclaimed that he would teach both Krishan Kumar and Om Parkash a lesson.
4. On 2-8-1992 at about 2.30 p.m., Krishan Kumar and Om Parkash were going for taking lunch. When Om Parkash reached near the shop of Bhim, Blacksmith, appellant Ram Phal waylaid him. The appellant lifted a Phwara lying there and gave a blow with the same on the head of Om Parkash as a result of which he fell on the ground. Krishan Kumar rushed to rescue his brother Om Parkash and then the appellant fled away from the spot along with the Phwara.
5. Om Parkash died of the injuries on 4-8-1992. ASI Mohinder Singh recorded the statement of Krishan Kumar Exhibit PK with regard to the incident at about 7.30 a.m. on the basis of which formal First Information Report Exhibit PC was registered. The Investigating Officer conducted investigation in the case and after completion of the same, the appellant was challenged, as noticed earlier.
6. The prosecution, in support of its case, examined P.W. 1 Siri Niwas Sharma, Recorder Keeper of the Medical College Hospital, Rohtak, P.W. 2 Dr. Mahabir Singh Sindhu, P.W. 3 Head Constable Ami Lal, P.W. 4 Constable Nafe Singh, P.W. 5 MHC Ram Dia, P.W. 6 Constable Ishwar Singh, P.W. 7 Lajja Ram Patwari, P.W. 8 Inder Singh, P.W. 9 Dr. S.K. Sharma, P.W. 10 Constable Udham Singh, P.W. 11 Mahinder Kaur, P.W. 12 Krishan Kumar, P.W. 13 Bhim, P.W. 14 Inspector Ran Singh, P.W. 15 Bhagat Singh, P.W. 16 Ram Phal and S.I. Jit Ram as P.W. 17. A.S.I. Mohinder Singh who partly investigated the case could not be examined as he died before his statement could be recorded.
7. After the conclusion of prosecution evidence, the statement of appellant u/Section 313, Cr.P.C. was recorded. He denied all the incriminating circumstances appearing in evidence against him. He took up the following stand :
The deceased fell from the cycle and received injuries resulting into his death. There was an old enmity between him and Ram Chander, Bhagat Singh and Ram Phal etc. They entrapped Krishan complainant also in their group. That old enmity was on account of elections to the Gram Panchayat. Taking undue advantage of the situation, I was falsely implicated in this case by these persons. I am innocent.
8. We have heard Mr. R.S. Ghai, Senior Advocate with Mr. Bipan Ghai Advocate for the appellant and Mr. N.K. Sanghi, D.A.G. Haryana and Mr. Ajay Lamba Advocate and perused the entire record with their help.
9. As per prosecution case, occurrence took place on 2-8-1992 at 2.30 p.m. Krishan Kumar P.W. made his statement to the police on 4-8-1992 at 10.30 a.m. on the basis of which formal First Information Report Exhibit PC was recorded. It is admitted case that the place of occurrence is about 6 Kilometres from the Police Station. The special report reached the Illaqa Magistrate at 2.20 p.m. Krishan Kumar in his statement Exhibit PK has stated that he lifted Om Parkash and brought him to doctor Hoshiara of Butana where he was given first aid and till then his brother was speaking well. Thereafter he went to Delhi to inform his uncle Inder Singh about this occurrence. Inder Singh came with Krishan Kumar on the next morning. When they came back, they found Om Parkash in a critical condition. They then took Om Parkash to M.C.H. Rohtak where he died at about 2/2.30 a.m.
10. From the narration of above facts, it is crystal clear that there is a delay of 44 hours in lodging the First Information Report which has not been satisfactorily explained. The explanation put forth by Krishan Kumar PW is far from convincing. It is pertinent to note that the appellant is alleged to have given Phwara blow on the head of Om Parkash which is the vital part of body. The first and foremost anxiety of Krishan Kumar, in such situation, would have been to take Om Parkash to a Government Hospital and not to Hoshiara, Medical Practitioner. And then, said Hoshiara, Medical Practitioner has not been examined to corroborate the prosecution version. The only inference to be drawn is that had Hoshiara been examined, he would not have supported the prosecution version. The prosecution has intentionally withheld him from the Court so that truth may not come to the surface. Still then, while leaving Om Parkash in critical condition, Krishan Kumar his brother would not have left for Delhi to bring his uncle Inder Singh. According to Inder Singh, he and Krishan Kumar returned to the place of occurrence on 3 8-1992. Even if the version of Krishan Kumar is accepted, even then there was ample opportunity with Krishan Kumar and Inder Singh to lodge First Information Report with the police particularly when Om Parkash had received a serious injury on the head and was in serious condition. The natural conduct of Krishan Kumar after the occurrence would have been to report the matter to the police promptly than to leave for Delhi to inform his uncle. Furlhere more, the Special Report was received by the lllaqa Magistrate at 2.20 p.m. It has come in evidence of Ishwar Singh, P.W. 6 that Baroda Police Station is at a distance of 9 kilometres from Gohana where the Court of Judicial Magistrate is situated. He has further admitted that he had come to Gohana in a three wheeler. There is also delay in sending special report to the Illaqa Magistrate as Ishwar Singh Constable could not have taken about four hours in covering only nine Kilometres. The delay in lodging the report with police coupled with the delay in delivering the Special Report to the Illaqa Magistrate clearly shows that the story has been invented only to cover up the delay. It is quite probable that it was a blind murder. Thereafter, the story was coined on 4-8-1992 to falsely implicate the appellant in this case.
11. Further, the bed head ticket of Om Parkash shows that when Om Parkash was admitted in the Medical College Hospital, Rohtak the first version given to the Medical Officer was that the deceased had fallen from the cycle at 2.30 p.m. on 2-8-1992. Another note given by the doctor in the O.P.D. Ticket is as under :
H/O fall from Bicycle, one day. Exact history is not available. Relatives say that he was coming from some village that someone informed the relatives that this man was lying on the road.
12. It would be seen that till 3-8-1992, when the deceased was got admitted in the Government Hospital, the positive stand of the prosecution witnesses was that Om Parkash had fallen from bicycle. Another version given by the relatives was that someone had informed them that the deceased was lying on the road. Till that time, it was not known as to who was the assailant of Om Parkash. It sounds convincing that the story about the occurrence was fabricated, on second thought, with the object to coin an ostensible explanation to account for the delay in the recording of the First Information Report and it is suggestive of the probability that the version contained in the First Information Report was the result of consultations and confabulations. It is fatal to the prosecution case.
13. The motive alleged in this case is that Ram Phal appellant had grouse with Krishan Kumar for charging less amount for shaving. It is alleged that on the day of occurrence the appellant had threatened Krishan Kumar and Om Parkash deceased. At noon time, Krishan Kumar and Om Parkash were going to take lunch at their house. Krishan Kumar was following Om Parkash from a distance of about half killa. When they reached near the shop of Bhim, Ram Phal appellant appeared armed with a Phwara and inflicted a blow with the Phwara on the head of Om Parkash deceased. It is the prosecution story that Ram Phal appellant had a grudge against Krishan Kumar P.W. and for this reason he had quarrelled with the latter. If the appellant wanted to take revenge, it was Krishan Kumar who was his target and not Om Parkash. Motive as alleged in this case is too slender to impel Ram Phal appellant to take away the life of Om Parkash against whom he had no ill-will or enmity. Resultantly, the prosecution has not been able to prove motive in this case.
14. The occurrence, in the present case, has been mainly unfolded by Krishan Kumar P.W. 12 and Bhim P.W. 13. The presence of these two eye-witnesses at the time and place of occurrence is highly doubtful. In the First Information Report, which is based on the statement of Krishan Kumar, it is no where mentioned that Bhim Blacksmith had also witnessed the occurrence. It is only stated that when Om Parkash reached near the shop of Bhim, the appellant attacked Om Parkash. It is not stated by Krishan Kumar in his earliest statement whether Bhim was present at his shop and whether he had come out of his shop before the occurrence and whether he had witnessed the same.
15. Further, Krishan Kumar has also stated in his statement Ex. PK that he was following his brother Om Parkash at a distance of one Killa. It does not seem natural, coupled with the delay in lodging the First Information Report and the earliest version of deceased having a fall from the bicycle as given to the doctor, that Krishan Kumar would have witnessed the occurrence from such a distance. Further, his statement is belied by the case history given in the O.P.D. Ticket by the doctor. In the case history, it is clearly mentioned by the doctor that the history given to him is that Om Parkash deceased had a fall from the bicycle resulting in injury. The conduct of Krishan Kumar after the occurrence, as noticed above, clearly shows that it was a blind murder and nobody knew as to who had caused the injury to Om Parkash and thereafter in consultation with the police, the complainant party cooked up a version against the appellant and falsely implicated him in this case. Had Krishan Kumar witnessed the occurrence, he would have reported the matter to the police immediately and would not have gone to Delhi to call his uncle. We, therefore, hold that the prosecution has not been able to prove the presence of Krishan Kumar and Bhim at the spot at the time of occurrence.
16. Learned counsel for the appellant submitted that there are material discrepancies in the statements of Krishan Kumar and Bhim which belie their presence at the alleged time of occurrence. P.W. 12 Krishan Kumar in his statement has deposed that when Om Parkash reached near the shop of Bhim Blacksmith, Ram Phal appellant appeared with a Phwara. On this aspect, he is contradicted by Bhim P.W. 13 who has stated that he used to tie his cow with the Kikar tree and Phwara Exhibit P3 was lying there. Ram Phal appellant picked up that Phwara.
17. Krishan Kumar PW further stated that he had picked up a bicycle from the shop of Bhim Blacksmith and took his brother Om Parkash on that bicycle to Hoshiara, Medical Practitioner. He was confronted with his statement Exhibit PK where it is not so recorded. We are of the opinion that the story of bicycle has been introduced later on by tutoring Krishan Kumar. Bhim has deposed that the bicycle was parked at his shop. He did not know to whom that bicycle belonged. He further admitted that he did not know the whereabouts of that bicycle. None came to him to take that bicycle. If the bicycle had been used for transporting Om Parkash deceased, the Investigating Officer would have taken the same into possession as it was a very material piece of evidence against the appellant. The Investigating Officer in his statement has no where stated that he took into possession any bicycle.
18. Krishan Kumar during his cross-examination was confronted with his statement Exhibit PK where it is not mentioned that Ram Phal appellant asked Krishan Kumar as to why he had been charging less rates from Prem. He was also confronted with his statement Exhibit PK wherein it is not mentioned that Om Parkash used to work with him in the same shop. It was also not mentioned therein that Krishan Kumar picked up a bicycle from the shop of Bhim Blacksmith. He was also confronted with his statement Exhibit PK wherein it is not recorded that Krishan Kumar and his uncle came together from Delhi, It is also not recorded therein that Krishan Kumar along with his uncle had taken Om Parkash to M.C.H. Rohtak. It is, therefore, clear that Krishan Kumar has made improvements over his earliest version contained in his statement Exhibit PK. This shows that he is a liar and has no respect for truth. No implicit reliance can be placed on his testimony.
19. The defence version as projected by the appellant in his statement recorded Under Section 313 of the Code of Criminal Procedure reads as under :
The deceased fell from the cycle and received injuries resulting into his death. There was an old enmity between him and Ram Chander, Bhagat Singh and Ram Phal etc. They entrapped Krishan complainant also in their group. That old enmity was on account of elections to the Gram Panchayat. Taking undue advantage of the situation, I was falsely implicated in this case by these persons. I am innocent.
20. This plea of the appellant fits in with the medical evidence. Dr. Mahavir Singh Sindhu, in his cross-examination has categorically admitted, that possibility of suffering injury No. 1 on the person of Om Parkash deceased can be possible if he falls on a hard substance with great force i.e. on metalled road. It was suggested to both P.W. 12 Krishan Kumar and P.W. 13 Bhim that Om Parkash had sustained head injury by fall from the bicycle. In these circumstances, the defence version seems to be more plausible than the prosecution case and credence requires to be given to the defence version.
21. Another snag in the prosecution case is that one Dr. Grover who had initially examined the patient and had written notes has not been examined. This also throws a doubt on the truthfulness of the prosecution case.
22. The sum and substance of the discussion is that the prosecution has not been able to prove that it was the appellant who had perpetrated the crime with which he has been charged. Consequently, this appeal is accepted and the appellant is acquitted of the charge framed against him.