1. The appellants have filed this appeal u/s 374(2) Cr. P.C. against [he judgment dated 11-12-1995 passed by Shri Ashok Kumar Sharma, RHJS, Sessions Judge, Pali, in Sessions Case No. 26/93 by which he convicted and sentenced the accused as thereunder:-
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1) Mahendra Singh Under Sections 302/34, IPC Imprisonment for life and a fine of Rs.
250/- in default one month''s rigorous
imprisonment
u/s 341, IPC Simple imprisonment for 15 days
u/s 435, IPC Two year''s rigorous imprisonment and
a fine of Rs.
250/- in default one month''s rigorous
imprisonment
u/s 201 IPC Two years'' rigorous imprisonment and
a fine of Rs.
250/-in default one month''s rigorous
imprisonment
u/s 4/25 Arms Act six months rigorous imprisonment and
a fine of Rs.100/- in default
15 days'' rigorous imprisonment
2) Teju Singh Under Sections 302/34 IPC Imprisonment for life & a fine of
Rs. 250/-in default one month''s
rigorous imprisonment
u/s 341 IPC Simple imprisonment for 15 days
u/s 435 Two years'' rigorous imprisonment and
a fine of Rs.250/- in default one
month''s rigorous imprisonment
u/s 201 Two years'' rigorous imprisonment
& a fine of Rs.250/- in default one
month''s rigorous imprisonment
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2. All the substantive sentences were ordered to run concurrently.
3. The prosecution story, as unfolded during trial, may be stated as follows. On 12-7-1992 at about 7.05 p.m. Bhanwarlal S/o Prabhu Nayar r/o Village Pipar filed a written report Ex. P-9 before Balamsingh PW-27 at Police Station Bagri. Shri Bhanwarlal alleged in the above report that he was a mechanic doing the work of diesel engine winding. Shri Sujan Singh deceased engaged him for repairing the former''s diesel engine at his well. He, therefore, went to Sujan Singh at his house and they together went to the well of Sujan Singh. After finishing the assigned work, both were returning from the well to the village. Sujan Singh was driving his Hero Motor Cycle and he was the pillion rider. When they reached near the ancut, both the accused suddenly came out from the babool bushes and they signalled Sujan Singh to stop the motor cycle. Mahendra Singh was armed with a dhariya and Teju Singh was having a lathi. Mahendra Singh in order to kill Sujan Singh struck a dhariya blow on Sujan Singh which landed on his left neck. Teju Singh also inflicted a lathi blow which Sujan Singh tried to ward off and in the process sustained injury on his left hand. As a result of the impact of beating Sujan Singh fell down from the motor cycle. After his fall, both the accused subjected him to severe beating as a result of which Sujan Singh died on the spot. Both the accused then took out petrol from the petrol tank of the motor cycle and put both of them to fire. He was witnessing this diabolic act being committed by both the accused from some distance concealing himself in the bushes. The other eye-witness who witnessed this murder were Mohan Maharaj and Smt. Maina w/o Mohan Maharaj. In the report Bhanwarlal further stated that Sujan Singh was done to death on account of some land dispute. The occurrence took pi ace at about 5.00 p. m. The distance between the place of occurrence and the Police Station is of 12 kilometers. Balam Singh PW-17 on receipt of this report registered a case under Sections 302, 201, 342 and 427 IPC and investigation commenced. He reached the site about 8.00 p.m. Since there was no light at the place of occurrence he could not make any further investigation except that he deputed a few constables to keep guard over the place of occurrence. He returned to the Police Station and then reached the site again the following day. He found the body of Sujan Singh and the motor cycle partially burnt. He prepared the site plan Ex. P-l in presence of Narayandas, Tejaram and Bhanwarlal. Photographs of the place of occurrence were also taken. He recorded the condition of the body of Sujan Singh in Ex. P-2. The dead body was indentified by Gorakh Singh, brother of the deceased Sujan Singh. The blood stained pyjama of Sujan Singh was seized in presence of the above witnesses and sealed there by Balam Singh. Seizure memo Ex. P-3 was prepared. He also collected the blood stained and controlled soil from the place of occurrence and prepared memo Ex. P-4. He further seized the motor cycle, watch of the deceased alongwith a cash of Rs. 1262/- from the place of occurrence as mentioned in Ex. P-10. The inquest report Ex. P-5 was prepared and the panchas were of opinion that Sujan Singh died on account of multiple injuries. The postmortem of the body of Sujan Singh was performed by the Medical Board consisting of Dr. Jagdish Mewara, Dr. Himanshu Jodhi and Dr. Arvind Nawal. They found that the animals had eaten part of the body of Shri Sujan Singh in the shoulder region. They noticed the antemortem injuries and noted the same in the postmortem report Ex. -P-16. They also found semi digested food in the stomach. According to the opinion of the Medical Board Sujan Singh must have died between eight to thirty six hours before the postmortem. The postmortem was conducted on 13-7-1992 between 12.50 p.m. and 2.50 p.m. The Investigating Officer examined several witnesses including the material witnesses, namely, Mohan Maharaj, Smt. Maina and Nathu. The seized articles were sent to the State Forensic Science Laboratory, Rajasthan, Jaipur and the report Ex. P-35 was received. According to the above report, the pyjama, dhariya, lathi and baniyan were found to be stained with human blood, though the blood group could not be ascertained as the same had disintegrated. With this incriminating evidence, the challan was filed in the Court of Munsif and Judicial Magistrate, Sojat who committed the same to the Court of Addl. Sessions Judge, Sojat for trial. By the order of this Court, the case was transferred to the Distt. and Sessions Judge, Pali.
4. Charges under Sections 341, 302, 435 and 201, IPC and a read with 25 Arms Act were framed against each accused. Both the accused pleaded not guilty and claimed to be tried. In proving the above charges, the prosecution produed as many as 17 witnesses. The statements of the accused was recorded u/s 383, Cr.P.C. Both the accused denied al 1 the material allegations of the prosecution and alleged that they have been falsely implicated. Teju Singh has further stated that the lathi was produced by the Bhagwan Singh, Deep Singh and Arjun Singh at the Police Station. He was arrested the following day, Mahendra Singh has stated that the dhariya was produced by Bhagwan Singh and Deep Singh at the Police Station. He was arrested the following day. Both the accused further alleged that witness Bhanwarlal is a history-sheeter and his record is being maintained by Police Station Bagri. They also stated that there was no enemity between him and his cousins. The accused produced Dewan Singh DW-1.
5. The learned Sessions Judge, after appreciation of evidence, held that the death of Sujan Singh was homicial in nature inasmuch as there were multiple injuries found on his body. Further petrol was sprinkled on the body of Sujan Singh and the Motor Cycle and both were put to lire by the accused. As a result of this act, the motor cycle as well as Sujan Singh were burnt substantially. He then dismissed the testimony of the witnesses Bhanwarlal, Natju, Mohan Maharaj and Maina Devi. Mohan Maharaj and Maina Devi have turned hostile to the prosecution. They have not supported the prosecution case at all. He, however, found Bhanwarlal and Nathu worthy of belief. The learned Sessions Judge discussed the case law as well as the arguments of both the parties. He appears to have attached substantial importance to the lodging of the FIR without delay. The FIR contained substantially the whole prosecution story. He found the prosecution version that Bhanwarlal had gone to the well of Sujan Singh on the day of occurrence and after carrying out the necessary repairs was returning with Sujan Singh. Sujan Singh was driving his Hero Motor Cycle and the witness was the pillion rider. He brushed aside the allegation levelled by (lie learned counsel for the accused that Nathu is a framed witness and was not present when the occurrence took place. His statement was recorded late. According to the learned Sessions Judge, Balam Singh PW-17 has assailed reasons for late examination of this witness. The above gruesome murder was committed by the accused on account of some land dispute. This fact was proved by Smt. Chhail Kanwar PW-13. The learned Sessions Judge has, therefore, convicted and sentenced the accused as stated above.
6. We have heard Shri M. L. Garg, learned counsel for the appellants and Mr. U.C.S. Singhvi, learned P. P.
7. Shri Garg has challenged the conviction and sentence of the accused appellants on the ground that the learned Sessions Judge has not objectively assessed and appreciated the prosecution evidence. In the instant case, according to the prosecution, only four witnesses were present at the time of the occurrence. They are Bhanwarlal @ Bhanwaroo PW-4, Smt. Maina Devi PW-7. Shri Mohan Maharaj PW-8 and Nathu @ Nathulal PW-9. Admittedly Mohan Maharaj PW-8 and Smt. Maina Devi and PW-7 have turned hostile to the prosecution and even after a close scrutiny of the statements of these witnesses nothing substantial can be found. Hence their testimony is to be discarded altogether. He was highly critical about Nathu PW-9 and about the remaining two witnesses. He referred to the statements of these two witnesses in detail and submitted that Bhanwarlal and Nathu are interested witnesses and the prosecution has created these witnesses in order to prove the case against the accused. He pointed out various omission, contradictions and inconsistencies in the statements of these two witnesses. Bhanwarlal in Ex. P-9 has given the name of Mohan Maharaj''s wife as Maina Devi. In the statement given before the learned Sessions Judge, the witness categorically admitted that he did not know the name of the wife of Mohan Maharaj. The very crucial question arises how the name of Maina Devi found place in the FIR Ex. P-9. Admittedly this name was not stated by the Bhanwarlal PW-7. This clearly indicates that the FIR was prepared much later by the Investigating Officer Balam Singh. The report was also sent late to the concerned Magistrate. Since the report was fabricated at a later stage, the copy could not have been sent to the Magistrate in time. The witness, in his police statement, has not stated that both the accused took out petrol from the petrol tank of the motor cycle and after sprinkling the same lighted a match and put the deceased Sujan Singh and motor cycle on fire. This is a very material omission. Similarly the witness has given inconsistent statement regarding the manner in which the injuries were allegedly caused by the accused. His statement is further contradicted by the FIR and Nathu PW-9. Shri Garg has pointed out that in the FIR Bhanwarlal stated that Mahendra Singh dealt the dhariya blow on the left side of the neck of Sujan Singh. In his statement Bhanwarlal had changed his version and stated that Mahendra Singh dealt the dhariya blow on the left head of Sujan Singh: In Ex. P-9 Bhanwarlal stated that Teju Singh dealt lathi blow on the head of Sujan Singh but the latter frustrated the attack by extending his left hand and the blow landed on his left hand. In the FIR and in his statement Bhanwarlal PW-4 has stated that when Sujan Singh fell down both the accused mercilessly showered blows on the body of Sujan Singh with their respective weapons. Nathu PW-9 on'' the other hand has stated that after the fall of Sujan Singh, the accused did not inflict any injuries with their weaspons. The medical evidence shows that there was an incised wound on the left parieto-occipital region. The other injuries were bruises of different sizes. Thus there are material inconsistencies between the statements of the above twoeye-witnesses and the medical evidence. Shri Garg also wondered why this witness Bhanwarlal first did not go to inform the relatives or family members of Sujan Singh when the village was only one and half km. from the place of occurrence. It could have only delayed his reaching the police station by a few minutes. According to the prosecution this witnesses had gone to the house of Sujan Singh and from there he and Sujan Singh proceeded towards the well. Thus Bhanwarlal was knowing the house of Sujan Singh as also its members. This castes a serious doubt about the veracity of this witness. Bhanwarlal has also not clarified who was the scribe of Ex. P-9. This fact assumes impossible when the contents of the report are scrutinised particularly mention of the name of Maina Devi.
8. Regarding Nathu Shri Garg has submitted that he is totally unreliable and appeared to have been framed up by the prosecution. If the prosecution story is to be believed of which Bhanwarlal PW-4 is the witness, the occurrence was witnessed by Mohan Maharaj, Maina Devi and Bhanwarlal. It is very important to note that even Bhanwarlal PW-4 has not named Nathu PW-9, who remained at the place of occurrence for more than 10 minutes. Balam Singh PW-17 has stated that when he inspected the site Nathu PW-9 was present there. His statement was not recorded on 13-7-1992. Balam Singh has stated that since Nathu left the site, his statement could not be recorded but no such note was given in the diary. There is also no note in the case diary that Balam Singh made any efforts to trace-out this material eye-witness. Balam Singh came to know that Nathuram is an eye-witness when he recorded the statement of Mohan Maharaj. On 13-7-1992 Nathu PW-9 has stated, that he witnessed the occurrence. He accidently met Nathuram when he was returning after investigation to Kelwal bus stand. It appears that Bhagwan Singh and Nathuram were together. However, in the case diary no such note was given that he met Nathuram at the stand. Hence it is absolutely doubtful that PW-9 was at all present at the place of occurrence.
9. Shri Garg also expressed surprise as to why this murder went unnoticed up to 8:00 p.m. Balam Singh PW-17 has stated that when he reached the site, he did not find any person there. The animals had eaten part of the body of Sujan Singh. The murder was committed at about 5:00 p.m. and the place of occurrence was hardly one and half km. away from the village. According to Shri Garg it was a murder committed by some unknown assailants and the accused have been falsely implicated. The above motorcycle did not belong to the deceased Sujan Singh. The original owner was Mukesh. Bheekharam purchased the above motorcycle from Mukesh and sold the same to the deceased Sujan Singh. The papers had not been transferred in the name of Sujan Singh. There was, therefore, a dispute between Bheekharam and Sujan Singh as a result of which Sujan Singh was murdered. Another possibility is that there was some accident in which Sujan Singh fell down and sustained injuries and the motor cycle caught fire which is responsible for burn injuries found on the body of Sujan Singh.
10. Learned P. P. has supported the judgment of the learned Sessions Judge who has dealt with the prosecution evidence in detail making reference to each witness.
11. We have considered the respective contentions. At the very outset, we may state that Shri Garg has not disputed the fact that the death of Sujan Singh was homicidal in nature. We, therefore, need not to refer to the various injuries mentioned in the post-mortem report Ex. P-16.
12. The whole prosecuted case hinges on the testimony of four witnesses, namely, Bhanwarlal PW-4, Mohan Maharaj PW-8, Maina Devi PW-7 and Nathu PW-9. We may exclude from consideration the testimony of Maina Devi PW-7 and Mohan Maharaj PW-8 who have turned hostile to the prosecution. Their statements do not contain any material to support or contradict the prosecution case.
13. We are, therefore, called upon to assess or scan the testimony of PW-4 and PW-9. First we may briefly refer to testimony of these two witnesses. Bhanwarlal PW-4 has stated that he is a mechanic and does the job of winding the water pumps. On the day of occurrence, he was summoned by Sujan Singh and they proceeded towards the well of Sujan Singh at about 2:30 p.m. After doing the job, he and Sujan Singh were returning to the village Kelwas. Sujan Singh was driving the motor cycle and he was the pillion driver. When they reached near the anicut, the accused obstructed their way and asked Sujan Singh to stop the motor cycle. Mahendra Singh was armed with a dhariya and Teju was having a lathi. Mahendra Singh struck a dhariya blow on the head of Sujan Singh followed by a blow delt by Teju Singh which landed on the left hand of Sujan Singh. After sustaining these two blows Sujan Singh fell down. The accused then administered blows with their respective weapons to Sujan Singh. Sujan Singh succumbed to the injuries sustained by him. Thereafter .the accused took out petrol from the petrol tank of the motor cycle and poured the same over the body of Sujan Singh and set fire to him. As a result of the above fire part of the body of Sujan Singh was burnt and the motor cycle was also damaged. He was witnessing this occurrence from a distance of about 10 ft. by hiding himself in the bushes. He then went to the police station and lodged the report Ex. P-9. In cross-examination he has stated that the above occurrence was also witnessed by Mohan Maharaj and Maina Devi. He did not know the name of Maina Devi. He was, therefore, unable to explain how her name found place in the report. He has improved his statement and stated that he made entreats to the accused not to kill Sujan Singh but the accused paid no heed and threatened him that in case he told anybody about the above occurrence they would also kill him. He has not shown the presence of Nathu PW-9 at the place of occurrence.
14. Nathu PW-9 has stated that on the day of occurrence he was grazing the cattle near the place of occurrence. He saw Sujan Singh and Bhanwarlal coming on the motor cycle. Near the anicut the accused stopped Sujan Singh. Mahendra Singh and Teju Singh attacked Sujan Singh with dhariya and lathi. Mahendra Singh inflicted two dhariya blows on the head of Sujan Singh. Teju Singh wanted to administer lathi blow on the head of Sujan Singh but the latter extended his hand in order to ward off the above blow and the same landed on his left hand. Sujan Singh fell down. Thereafter the accused continued to assault him. Thereafter the accused burnt the motor cycle and Sujan Singh with petrol of the vehicle. He was summoned by the police at the time of site inspection. He has stated that Mohan Maharaj and his wife were also present near the site and they have also witnessed the above occurrence. None raised any alarm. In cross-examination he has stated that the accused did not deal any blow to Sujan Singh after the latter fell down. Thereafter he left the place of occurrence with his cattle. He went to the village. He has also stated that Bhanwarlal first went to the village and told about the incident to several persons of village. When the police inspected the site he told the Investigating Officer that he also saw the incident. His statement was, however, recorded on the day of occurrence. In cross-examination he further stated that after the fall of Sujan Singh, Teju Singh continued to assault with his lathi to Sujan Singh.
15. We may also refer to the statement of Balam Singh PW-17. We have already stated that Balam Singh admitted that Nathu PW-9 was present when he inspected the site. Nathu PW-9 has stated that he told the SHO that he was an eyewitness. However, Balam Singh has stated that he recorded the statement of Nathu only on 15-7-1992 because the witness had left the site and was not traceable. He found the witness at the bus stand of the village on 15-7-1992. He, therefore, recorded the statement there.
16. From the above it is clear that it is highly doubtful whether Nathu PW-9 was present at the place of occurrence and saw the incident. The intrinsic infirmities of evidence ought to induced the Court to discard such evidence. It is very important to note that Bhanwarlal PW-4 has not deposed a word about the presence of Nathu PW-9. If Nathu PW-9 would have been present at the place of occurrence, Bhanwarlal would not have missed spotting him there and deposing this fact in his statement. The second infirmity is that the statement of this witness was recorded on 15-7-1992. It has been proved that Balam Singh PW-17 was made aware of the fact that Nathu PW-9 was an eye-witness. Nathu was also present when he inspected the site. In such a serious case, the Investigating Officer ought to have examined Nathu then and there or on the same day. It is not possible that he would let the witness leave the place. Balam Singh cannot be believed when he says that he was in search of this witness and made efforts to trace him out but could not find him. In cross-examination he was grilled about this point when learned counsel for the accused asked several questions why he did not make relevant entries in the case diary about these facts. He had to admit that he did not make any entry in the case diary as to whether Nathu PW-9 was an eye-witness and that he left the site without notice and that he could not be located despite efforts. For want of these necessary entries in the case diary, the obvious inference is that Balam Singh is flirting with truth when he claims that he was making sincere efforts to locate Nathu in order to record his statement. The third infirmity worth mention is that this witness after seeing this gruesome murder did not inform the mother and brother of Sujan Singh about this incident. There is a contradiction between statements of this witness and Bhanwarlal PW-4. According to Bhanwarlal PW-4 he straightway went to the police station from the site whereas according to Nathu PW-9 Bhanwarlal PW-4 first went to village and after informing the inhabitants of the village went to the police station. This is a very important contradiction. It is also intriguing what prevented Nathu PW-9 from reporting the matter to the mother and brother of the deceased. Hi s description about beating is also contradicted by Bhanwarlal PW-4. He thus appears to be a chance witness and no reliance can be placed on his statement.
17. Now, the only solitary witness remains namely, Bhanwarlal PW-4.
18. Bhanwarlal PW-4 happened to visit Sujan Singh in connection with the repair work of the water pump of Sujan Sngh. Smt. Chhail Kanwar PW-19 has stated that Bhanwarlal came to Sujan Singh and both of them left her house at about 2:00 or 2:30 p.m. on a motor cycle. She has stated a very important fact. According to her both the accused also left the house and went in the direction where Sujan Singh and Bhanwarlal had gone. The question of credibility of a witness has primarily to be decided by referring to his evidence and finding out as to how the witness has fared in cross-examination and what impression is created by his evidence taken in the context of other facts of the case. Learned counsel for the accused cited a few decided cases with regard to appreciation of evidence. He referred to
19. Decided cases can be of help if there is a question of law like the admissibility of evidence. Each decided case lays principles of appreciation of evidence with reference to the particular facts and circumstances of that case. Hence reference of decided cases is hardly apposite when the question before the Court is whether the evidence of a particular witness should or should not be accepted. It is a settled law that conviction in murder case can be based even on the testimony of a single eye-witness if the same is found acceptable after subjecting his testimony to a critical and objective test by the Court in the light of various principles laid down by the Courts.
20. After a careful appaisal we find Bhanwarlal PW-4 reliable. The only material inconsistency in his statement or the FIR is how the name of Maina Devi was recorded. He has stated that he did not know the name of the wife of Mohan Maharaj and that he did not state her name in the report. Except this inconsistency there is nothing inherently unreliable in the statement of this witness. The very important fact lands credence and credibility to the statement of this witness. As per prosecution story Bhanwarlal went to Sujan Singh in order to repair latter''s water pump. He has stated that after doing the above job he was returning and the water pump was tied with the motor cycle. After the above incident when the motor cycle fell down the Investigating Officer Balam Singh found various machinery parts lying on the ground at the site. This shows the witness must have gone to Sujan Singh''s well in order to repair the water pump. It is also very natural that the both were returning to the village after getting the job done. It is also important to note that Bhanwarlal IJW-4 is not at all related to Sujan Singh. He has, therefore, got no friendship with Sujan Singh or enemity with the accused. The fact that he lodged the FIR without delay lands credence to the truthfulness and reliability of the prosecution version. The facts stated in the report substantially constitute the prosecution story. It is true that FIR does not constitute substantive evidence but its importance as containing the earliest information regarding the occurrence cannot be doubted. It cannot be gainsaid that there are certain omissions in the statement of Bhanwarlal PW-4. In the Court he has stated that one accused took out petrol from the petrol tank of the motor cycle and poured the same over the vehicle and the body of Sujan Singh and the other lighted a match and set the same on lire. These facts have not been stated in the FIR. Similarly there are certain variations regarding the manner in which both the accused assaulted Sujan Singh but the substratum of the evidence is reliable and can be used to base the conviction of the accused. From the prosecution evidence it appeals that the above murder was not noticed by any person in the village. The reason for this is that the place where the murder was committed is off the road and it is just possible that none passed on that route after the occurrence. Smt. Chhail Kanwar has stated that she was informed about the murder of Sujan Singh by Pooran Singh, younger brother of Sujan Singh. Regarding the motive Chliai! Kanwar has stated that Teju Singh, Mahcndra Singh and Raj Singh are three brothers. ''I he agricultural land is jointly owned by Sujan Singh and the three brothers. There was some dispute regarding this land as partition had not taken place. She has stated that mother of Teju Singh and Mahendra Singh used to tell her mother-in law that Chhail Kanwar was creating bad blood between her three sons.
21. We do not find any substance in the contention of Shri Garg that the murder was committed by some unknown assailants and the assailants could be the persons hired by Bheekharam from whom Sujan Singh had purchased the vehicle. There is also no possibility that Sujan Singh could have sustained the above injuries by a fall as a result of accident of the above vehicle.
22. For the above reasons we do not find any force in the appeal and the same is hereby dismissed.
