Kanwaljit Singh Ahluwalia, J@mdashVimla Meena wife of Sultan Singh, Chetan Kumar Meena S/o. Sultan Singh, Mali Ram S/o. Sedu Ram, Bhagwan Sahay S/o. Ishwar Nath, his two sons namely Om Prakash and Rajendra Yogi, were tried for constituting unlawful assembly for having committed murder of Chandrapal on 22.5.2004 at 9:30 AM. They were also tried for causing injuries to Vikas Yadav (P.W.5) son of the deceased Chandrapal.
2. The court of Addl. Sessions Judge (Fast Track) No. 2, Jaipur City, Jaipur, vide impugned judgment dated 31.5.2007, held the appellants namely Vimla Meena, Mali Ram, Om Prakash, Bhagwan Sahay guilty for the offence under Sections 302/149, 147, 148, 341, 323/149 and vide a separate order of even date, sentenced them as under:
"U/s. 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs. 3000/- each, in default of payment of fine, to further undergo one month S.I.
U/s. 147 IPC- to undergo two months S.I. and to pay a fine of Rs. 200/- each, in default of payment of fine, to further undergo one month S.I.
U/s. 148 IPC- to undergo three months S.I. and to pay a fine of Rs. 200/- each, in default of payment of fine, to further undergo fifteen days S.I.
U/s. 341 IPC- to undergo seven days S.I. and to pay a fine of Rs. 100/- each, in default of payment of fine, to further undergo seven days S.I.
U/s. 323/149 IPC- to undergo one month S.I. and to pay a fine of Rs. 100/- each, in default of payment of fine, to further undergo seven days S.I."
3. Similarly, the trial court held the appellants namely Rajendra Yogi and Chetan Kumar Meena guilty for the offences under Sections 302/149, 148, 341, 323/149 and vide a separate order of even date, sentenced them as under:
"U/s. 302/149 IPC- to undergo life imprisonment and to pay a fine of Rs. 3000/- each, in default of payment of fine, to further undergo one month S.I.
U/s. 148 IPC- to undergo three months S.I. and to pay a fine of Rs. 200/- each, in default of payment of fine, to further undergo fifteen days S.I.
U/s. 341 IPC- to undergo seven days S.I. and to pay a fine of Rs. 100/- each, in default of payment of fine, to further undergo seven days S.I.
U/s. 323/149 IPC- to undergo one month S.I. and to pay a fine of Rs. 100/- each, in default of payment of fine, to further undergo seven days S.I."
It was ordered that sentences awarded to all the accused on various counts shall run concurrently.
4. Aggrieved against their conviction and sentence, Vimla Meena and her son Chetan Kumar Meena and Mali Ram filed D.B. Criminal Appeal No. 1294/2007, whereas Bhagwan Sahay and his two sons namely Om Prakash and Rajendra Yogi instituted D.B. Criminal Appeal No. 1436/2007. Since in both the appeals, common judgment has been assailed, we shall decide both the appeals together along with D.B. Criminal Misc. Application No. 166/2013 filed in D.B. Criminal Appeal No. 1294/2007, which was preferred on behalf of Vimla Meena and Chetan Kumar Meena under Section 386(e) read with Section 482 Cr.P.C., praying that the statement of the accused recorded under Section 313 Cr.P.C. be set aside and their statement under Section 313 Cr.P.C. be recorded afresh. The said application was ordered to be considered at the time of hearing of the main appeal.
5. Six accused tried by the trial court belong to three families. Chetan Kumar Meena is son of Vimla Meena, second family consists of Bhagwan Sahay, he has been tried along with his two sons namely Om Prakash and Rajendra Yogi, whereas, Mali Ram is not related to other accused and thus, is a member of third family.
6. To support the case of the prosecution, four eyewitnesses have been examined, namely Shanti Devi (P.W.1) wife of Ranjan Yadav, who is wife of younger brother of the deceased Chandrapal, three other eyewitnesses namely Asha Yadav (P.W.16), Abhilasha (P.W.19) and Vikas Yadav (P.W.5) are daughters and son of the deceased Chandrapal, respectively.
7. The crucial question in the present two appeals is whether the complainant party has inflated number of accused and number of witnesses or not?
8. The criminal proceedings were set into motion on the basis of written report (Exhibit-P/1) presented by Shanti Devi (P.W.1) before SHO, Police Station Jhotwara, Jaipur. The written report (Exhibit-P/1) when translated into English reads as under:-
"To
Incharge,
Police Station Jhotwara,
Jaipur.
Sir,
It is submitted that I am resident of House No. 129/130, Kashi Nagar near Benar Railway Station, Jaipur. I am residing there alongwith my family. In my neighbourhood, Chandrapal, elder brother of my husband resides with his family. Opposite the house of my Jeth (elder brother of husband), Vimla Devi is residing. In the month of October, Sultan Meena husband of Vimla Devi committed suicide by hanging himself. At that time, Vimla Devi had taken loan of Rs. 8,000/- from my Jeth Chandrapal Yadav. He was asking Vimla Devi again and again to return the amount due to which dispute was going on. Today in the morning at 9:30 AM, my Jeth (elder brother of husband) Chandrapal Yadav was standing over Benar Road, as he was going to meet S.P. At that time, five or seven persons came running towards Chandrapal. I also went running there. They were beating Chandrapal. They were also causing injuries to daughters of Chandrapal namely Abhilasha and Asha and son Vikas. Then they dragged Chandrapal to a deserted place and caused him injuries with knife, danda (stick) and kulhari (axe). My Jeth became unconscious. We informed Jhotwara Police Station on telephone. The police arrived at the spot. They brought my Jeth to Kanwatiya Hospital, where he was declared dead. Vimla Devi, Om Prakash Jogi, Bhagwan Das Jogi, Rajendra Jogi, Chetan Meena, Mali Ram Meena, Jyoti Meena, Gulab Jat, Lala Maharaj. Om Prakash Jogi inflicted knife blow to my Jeth. Vimla Devi till last was causing injuries with lathis. Chetan Meena caused injuries with Farsi due to which my Jeth died. The occurrence had taken place on the vacant land on the eastern side of Benar Road. We made various telephonic calls to Police Station Jhotwara but at that time no immediate intervention was caused.
Sd/-
Shanti Devi"
9. A perusal of written report (Exhibit-P/1) reveal that the occurrence had taken place on 22.5.2004 at 9:30 AM. The written report was submitted to SHO, Police Station Jhotwara, Jaipur on that day itself i.e. 22.5.2004 at 11:45 AM. At that time, on the basis of written report (Exhibit-P/1) a formal FIR (Exhibit-P/2) bearing No. 212/04 was registered. The special report reached the Illaqa Magistrate at Jaipur itself on 24.5.2004 at 11:30 AM.
10. The prosecution in all examined twenty witnesses. Thereafter, the statement of the accused were recorded under Section 313 Cr.P.C. and accused in their defence examined six witnesses. The prosecution also proved on record documents from Exhibit-P/1 to Exhibit-P/24, whereas the defence brought on record documents from Exhibit-D/1 to Exhibit-D/13.
11. Dr. M.D. Qureshi (P.W.12) on the next day of occurrence i.e. 23.5.2004 at 1:30 PM, being posted as Medical Jurists at Kanwatiya Hospital, Jaipur, examined injured Vikas Yadav (P.W.5) and vide Injury Report (Exhibit-P/15) found following injuries on the person of Vikas Yadav:
"(i) Swelling with bruise, (a) 2 x 1 cm on lower of left foot, (b) 1 x 1 cm on left wrist.
(ii) Abrasion with soft scab (a) 1 1/2 x 1/4 cm left mandible, (b) 1 x 1/4 cm front of neck, (c) 1 x 1/4 cm left side of neck, (d) 1 x 1/4 cm right leg lower 1/3rd laterally, (e) 1 x 1/4 cm below left knee."
12. Dr. M.D. Qureshi (P.W.12) on the day of occurrence itself i.e. on 22.5.2004, at 3:35 PM, conducted autopsy on the dead body of Chandrapal, aged 58 years and as per Post Mortem Report (Exhibit-P/16) had found the following injuries on the person of Chandrapal:-
"(i) Incised wound with sharp margin with dry red clotted blood, 2 x 1cm, skin subcutaneous tissue deep on left eye-brow medially obliquely placed.
(ii) Incised wound with sharp margins with dry red clotted blood, 2 1/2 x 1 cm, skin subcutaneous tissue deep, obliquely placed on left eye-brow laterally.
(iii) Incised wound with dry red clotted blood, 3 1/2 x 1 cm, skin muscle deep, on just below left lower eye-lid, laterally vertically placed with sharp margins.
(iv) Incised wound with dry red clotted blood, 1 x 1/2 cm, skin deep, obliquely placed with sharp margins on right upper eye-lid medially.
(v) Incised wound with sharp margins with dry red clotted blood, obliquely placed on right upper lid at distance of 1/2 cm medial to injury No. 4.
(vi) Incised wound with sharp margins, 1 x 1/2 cm, skin deep on right eye-brow, laterally obliquely placed with dry red clotted blood.
(vii) Incised wound with sharp margins, 1/2 x 1/2 cm, skin muscle deep with dry red clotted blood, medially to right eye vertically placed.
(viii) Incised wound with sharp margins with dry red clotted blood, 2 x 1 cm, skin muscle deep on right side of face at maxilla region, 1 cm below right lower lid vertically placed.
(ix) Incised wound with sharp margins with dry red clotted blood, on left side of chin, obliquely placed, 2 1/2 x 1 cm, skin and muscle deep.
(x) Incised wound with sharp margins with dry red clotted blood, 2 1/2 cm x 1 cm, skin and muscle deep, on right side of abdomen, just near mid line of epigestrium region, vertically placed with tailing downwards.
(xi) Incised wound stitched with dry red clotted blood with clear cut sharp margins, obliquely placed, 2 x 1 cm, thoracic cavity deep, cutting sternum, pericardium and cutting and entering to right atrium. On front of chest, nera mid line over sternum. Corresponding to intercostal space between mid of 3rd rib, the trail is directed downwards, backwards and laterally with huge amount of haematoma over sternum region. Midartrium and Pericardium on right atrium. Thoracic cavity showing above liver with dark red partially clotted blood.
(xii) Lacerated wound with dry red blotted blood (a) 1/2 x 1/4 x 1/4 cm on left knee cap, (b) 1/2 x 1/4 x 1/4 cm, left leg upper 1/3rd anteriorly.
(xiii) Abrasion, dark red, three in number (a) 1 1/2 x 1/4 cm, (b) 1/2 x 1/4 cm, (c) 1/4 x 1/4 cm on right knee cap anteriorly separated by 1/2 cm distance.
(xiv) Abrasion, dark red, 1 x 1 cm, left knee cap.
All injuries are ante mortem in nature."
13. A perusal of the injuries reveals that Injury Nos. 1 to 11 are incised injuries, Injury No. 12 is lacerated wound and Injury Nos. 13 and 14 are abrasions.
14. Dr. M.D. Qureshi (P.W.12) was a member of Medical Board which conducted autopsy and as per opinion of the Medical Board, the cause of death is hemorrhagic shock as a result of ante mortem injuries caused to vital organ heart and injury No. 11 was individually sufficient to cause death in the ordinary course of nature.
15. As stated earlier, the prosecution examined four eyewitnesses, namely Shanti Devi (P.W.1), Vikas Yadav (P.W.5), Asha Yadav (P.W.16) and Abhilasha (P.W.19). Before we deal with the testimony of these eyewitnesses, we shall have a quick glance over the testimony of other witnesses.
16. Balram (P.W.2) Constable stated in the court that on 22.5.2004 vide arrest memo (Exhibit-P/6 and Exhibit-P/7) he had effected the arrest of Vimla Meena and Om Prakash, respectively.
17. Satya Narayan (P.W.3) stated in the court that he had attested the arrest memo (Exhibit-P/8 and Exhibit-P/9) of Bhagwan Sahay and Mali Ram. Their arrest was effected on 24.5.2004.
18. Saduram (P.W.4) has also attested the arrest memo Exhibit-P/8 and Exhibit-P/9.
19. Madan Lal (P.W.6) in the court stated that he is Sarpanch of village Nangal Sirsi. Four or five months ago at about 10:00 AM, he was going from Jhotwara to Benar. Near Benar Railway Station people had gathered and they were saying that a beating has been given to one person. People had gathered there. This witness stated that he had not gone to spot. This witness further stated that he had not seen at the spot as to who caused injuries to whom. This witness was declared hostile by the prosecution.
20. Palli Ram (P.W.7) stated in the court that he knew deceased Chandrapal. This witness stated that about one a half year ago, Chandrapal was came running from railway station to Benar Road. He was followed by four or five persons. The said people gave beating to Chandrapal and decamped from the spot. Those who caused injuries to Chandrapal are not present in the court. This witness was declared hostile to the prosecution having resiled from his previous statement.
21. Kishan Chandra (P.W.8) stated in the court that he was posted as ASI at Police Station Jhotwara. This witness stated that on 22.5.2004, he received a telephonic call from anonymous person that a fight is going on opposite Benar Railway Station, near road. This witness on motorcycle alongwith rider Constable Ishwar Singh reached at the spot and found that one person was lying on a vacant plot and he had suffered injuries and blood was coming out. This witness learnt the name of the said person to be Chandrapal. This witness brought the said person to Kanwatiya Hospital. The said person was declared dead. In Kanwatiya Hospital, Shanti Yadav (P.W.1) bhabhi (younger brother''s wife) of Chandrapal was also present. She informed that associates of Vimla Devi had given beating. She disclosed the names of accused as Vimla Devi, Om Prakash, Mali Ram, Chetan, Bhagwan Sahay etc. This witness recorded this information in daily diary report No. 1946, copy of which has been proved on record as Exhibit-P/13.
22. Laduram Choudhary (P.W.9) stated in the court that he knew the deceased Chandrapal. This witness also stated that he knew the accused persons who are present in the court. This witness had not seen accused causing injuries to Chandrapal. This witness was also declared hostile by the prosecution.
23. Ranjan Yadav (P.W.10) is younger brother of the deceased Chandrapal and husband of Shanti Devi (P.W.1). This witness stated that on the day of occurrence he received telephonic call from his wife Shanti Devi that Vimla Meena, Chetan, Mali Ram Meena, Ram Sahay Jogi, Om Prakash Jogi, Rajendra Jogi had committed murder of his brother Chandrapal.
24. This witness further admitted that the written report (Exhibit-P/1) lodged by his wife is in his handwriting. This witness further stated that he had recorded the report in the presence of three children and wife of the deceased, Chandrapal.
25. Ishwar (P.W.11) stated in the court that he was posted as Constable at Police Station Jhotwara. This witness stated that on information received, they reached at the spot, where person was lying unconscious on a vacant plot. That person had received many injuries. The mob had gathered there. People informed his name as Chandrapal. Mob stated that Vimla Meena, Om Prakash, Chetan, Bhagwan Sahay, Rajendra Yogi and Mali Ram had caused injuries to Chandrapal. They stopped the private jeep and brought Chandrapal to Kanwatiya Hospital. At the spot three children were present, which included two girls and a boy. They were saying that their father has been caused injuries. At the hospital, doctor declared the injured Chandrapal as dead.
26. In cross-examination, this witness (Ishwar P.W.11) stated that no relative of Chandrapal met him at the spot. This witness further stated that in the jeep, in which they brought Chandrapal, except him and Kishan Chandra, no other person was present. This witness further stated that only three children of the deceased were present.
27. Jhabar Mal (P.W.13) stated in the court that on 22.5.2004, he was posted as Constable at Police Station Jhotwara. This witness had prepared inquest (Exhibit-P/3) of deceased Chandrapal.
28. Kalyan Singh (P.W.14) had also accompanied Ishwar (P.W.11) to the spot and had brought the deceased Chandrapal to the hospital, where he was declared dead.
29. Ramesh Chandra (P.W.15) stated in the court that he had carried sealed samples and deposited the same to the Forensic Science Laboratory.
30. Jethmal (P.W.17) who was declared hostile by the prosecution, was examined regarding recovery of weapons from the accused.
31. Madan Singh (P.W.18) stated in the court that 22.5.2004, he was posted as SHO at Police Station Jhotwara. The written report (Exhibit-P/1) was presented before him by Shanti Devi (P.W.1) on the basis of which a formal FIR (Exhibit-P/2) bearing No. 212/04 for the offences under Sections 302, 147, 148, 149, 341 and 323 IPC was registered.
32. Subhash Singh (P.W.20) is the Investigating Officer. This witness has proved various facets of the investigation.
33. Bhanwar Lal (P.W.20), was also numbered as P.W.20. This witness was examined to prove recovery of weapons. This witness has not supported the prosecution case and was declared hostile.
34. Now, we shall revert to the testimony of eyewitnesses, namely Shanti Devi (P.W.1), Vikas Yadav (P.W.5), Asha Yadav (P.W.16) and Abhilasha (P.W.19).
35. Shanti Devi (P.W.1) stated in the court that on the day of occurrence, his Jeth (elder brother of husband) Chandrapal was waiting for the jeep. He was to go to the office of Superintendent of Police regarding dispute of unreturned amount of Rs. 8,000/- by Vimla Meena. This witness stated in the court that the accused Yogi caused injuries to Chandrapal accompanied by his two sons. Chetan Kumar Meena caused first blow. Thereafter, Vimla Meena caused injury with Danda (stick). One of the son of Yogi was armed with knife. All the accused caused injuries to his brother-in-law. The examination-in-chief was further recorded on 4.8.2005, wherein she stated that Chetan, Mali Ram, Om Prakash, Rajendra Yogi, Bhagwan Sahay and Vimla Meena caused injuries to her brother-in-law Chandrapal with knife. Vimla Meena caused injuries with Danda (stick).
36. Vikas Yadav (P.W.5) aged 13 years in the court stated that on 22.5.2004, he along with his father and two sisters were going to meet Ravikant, Superintendent of Police. When, they were waiting for bus, Vimla Meena, Chetan, Mali Ram, Bhagwan Sahay, Rajendra Yogi and Om Prakash came at about 8:45 AM. Vimla Meena gave an axe blow on the head of his father. Om Prakash, Rajendra Yogi and Chetan Kumar Meena took his father towards the vacant plot, where Chetan Kumar Meena caused injury with knife. Om Prakash and Rajendra Yogi caught hold of hairs of his father. Vimla Meena caught hold of hands. Rajendra Yogi caused injuries with knife due to which his father fell at the spot. Chetan Kumar Meena was armed with Farsi and Vimla Meena was armed with axe. Jyoti, daughter of Vimla Meena was armed with stick. While his father was lying down, Vimla Meena and Jyoti caused injuries with stick.
37. Asha Yadav (P.W.16) in the court stated that on the day of occurrence, at about 9:00 AM, she along with his father, brother Vikas Yadav and sister Abhilasha were going to meet Superintendent of Police. They were waiting for a jeep. Then Vimla Meena, Mali Ram, Chetan Kumar Meena, Bhagwan Sahay, Rajendra Yogi and Om Prakash came. They caused blows to his father from back and dragged him to a vacant spot. Bhagwan Sahay and Om Prakash made his brother fall on the ground. Meanwhile, their aunt, Shanti Devi (P.W.1) had also arrived. Vimla Meena was pulling hairs of her father. Bhagwan Sahay caught hold of hands, then Chetan Kumar Meena, Mali Ram, Om Prakash and Rajendra Yogi all attacked with knife and caused injuries in the abdomen and chest of her father. Chetan Kumar Meena gave injury on the neck. Then accused ran away from the spot. Vimla Meena and Bhagwan Sahay were causing injuries with stick.
38. Abhilasha (P.W.19) stated in the court that on 22.5.2004, they were going to meet Superintendent of Police. They were waiting for bus. When Vimla Meena, Chetan Kumar Meena, Mali Ram, Om Prakash, Bhagwan Sahay and Rajendra Yogi came armed with lathis and knife. They pelted stones. They dragged his father. Rajendra Yogi, Om Prakash, Chetan Kumar Meena and Mali Ram caught hold of hairs of her father and dragged him to the vacant plot. She and her sister pelted stones. Rajendra Yogi and Chetan Kumar Meena caused injuries with Farsi on the neck of her father. Om Prakash and Bhagwan Sahay caused injuries with lathi on the head. While her father was lying, Rajendra Yogi caused injury in the abdomen with knife. Vimla Meena till last was giving blows with lathis.
39. Mr. Anshuman Saxena, Mr. Rinesh Gupta assisted by Ms. Chandrakala Sahu and Mr. Kuldeep Sharma, the learned counsel appearing for the appellants have submitted that the version given by the four eyewitnesses is contradictory. The sequence of events, weapons assigned to each accused and the seat of injury attributed in the testimony of all the four eyewitnesses differ and are diametrically opposed, hence, these witnesses cannot be relied and the court should discard their testimony. The learned counsel for the appellants have submitted that once these eyewitnesses are ruled out of consideration, there remain no evidence with the prosecution to connect the appellants with the crime.
40. To counter above submission, Mr. N.S. Dhakad, the learned Public Prosecutor has submitted that Vimla Meena was root cause of the dispute. She came at the spot along with her associates and numerous injuries were caused to the deceased Chandrapal.
41. Before we discuss the testimony of eyewitnesses, it will be apposite for us to take note of testimony of defence witnesses.
42. Manna Lal (D.W.1) stated that about two year ago, near Benar Railway Station at about 9:00 AM, on 22.5.2004, about five or ten persons were running after Chandrapal. They were saying that we will kill and will not leave him.
43. Ramswaroop Meena (D.W.2) stated that he was having STD/PCO booth near Benar Railway Station. On 22.5.2004, at about 9:00 AM, when he was opening his shop, five or ten persons were running and he heard that gundas have arrived at the spot.
44. Ram Kumar Singh (D.W.3) also stated that eight or ten persons armed with various weapons were chasing a man and after sometime, police had arrived.
45. Bhagwan Sahay Meena (D.W.4) stated that on 22.5.2004, five or seven persons were saying that injuries be caused to Chandrapal.
46. Rajendra (D.W.5) was called to prove criminal record of the deceased, Chandrapal.
47. Poonam Chand Vishnoi (D.W.6) also proved on record criminal antecedents of the deceased, Chandrapal.
48. Thus, the defence also admitted that on 22.5.2004, the occurrence had taken place at about 9:30 AM. However, the defence doubt the presence of eyewitnesses. We shall evaluate the prosecution case and defence evidence on the touch stone of the probabilities.
49. Admittedly, Chandrapal deceased was having dispute with Vimla Meena. There were criminal cases pending between them also. According to the prosecution, Chandrapal on the day of occurrence was going to enter complaint to the Superintendent of Police. We find that the story now introduced that the deceased Chandrapal was accompanied by her two daughters namely Asha (P.W.16) who at the time of her deposition was aged 14 years and Abhilasha (P.W.19) was aged 20 years is improbable. Taking into account the criminal antecedents of the deceased Chandrapal, there was no need for Chandrapal to take his two daughters alongwith him to meet Superintendent of Police. Vikas Yadav (P.W.5) son of the deceased Chandrapal even though aged 13 years, has received injuries in the occurrence. His presence at the spot is stamped.
50. A perusal of the injuries reveal that they have been caused by two weapons i.e. incised weapon and blunt weapon. Injury Nos. 13 and 14 can be result of fall also. Only injury No. 12 has been caused with blunt weapon. Thus, it cannot be ruled out that the injuries can be caused by three persons.
51. We have also perused the site plan (Exhibit-P/4). In the site plan, nowhere the house of Shanti Devi (P.W.1) or the deceased is reflected. The site plan reveals that at the place of occurrence, number of shops including Sharma Clinic are situated. Thus, it cannot be ruled out that two girls and Shanti Devi arrived at the spot immediately after the occurrence as the houses are not shown in the site plan and as per deposition of witnesses are near to the place of occurrence. Shanti Devi (P.W.1) in her cross-examination has stated as under:-
52. The site plan (Exhibit-P/4) shows Benar Railway Station at some distance. Thus, the prosecution has introduced Shanti Devi (P.W.1), Asha (P.W.16) and Abhilasha (P.W.19) as eyewitnesses at the later stage. We cannot become oblivious of the fact that Madan Lal (P.W.6), Palli Ram (P.W.7) and Laduram Chaudhary (P.W.9) cited by the prosecution as independent witnesses have not supported the case of the prosecution. Thus, the case of the prosecution rests upon the testimony of witnesses who are closely related to the deceased, Chandrapal. Since we have held that three ladies were introduced as eyewitnesses, we rely upon the testimony of Vikas Yadav (P.W.5), who has received injuries in the occurrence.
53. Vikas Yadav (P.W.5) in the court stated that Vimla Meena had given an axe blow on the head of the deceased Chandrapal. This witness, however, stated that Chetan Kumar Meena and Rajendra Yogi caused injuries with knife. Om Prakash has caught hold of hairs of his father. This witness has not assigned any injury to Mali Ram and Bhagwan Sahay.
54. In the context of above, we cannot ignore that in the present case, special report had reached Illaqa Magistrate in the Jaipur City itself after two days of the registration of the case on 24.5.2004 at 11:30 AM.
55. At the cost of repetition, it is again stated that the occurrence in the present case had taken place on 22.5.2004 at 9:30 AM. The case was registered on 22.5.2004 at 11:45 AM and special report reached the Illaqa Magistrate after 48 hours, though police station and the house of Magistrate are situated in the same city of Jaipur.
56. The Hon''ble Supreme Court in the case of
"6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.
7. Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Emphasis supplied). Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it.
8. In the instant case, the copy of the report referred to in Section 157 CrPC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be" and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said report in terms of Section 157 CrPC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission."
57. Thus, it cannot be ruled out that not only the prosecution has introduced witnesses, they have inflated number of accused. Taking the testimony of Vikas Yadav (P.W.5) in the court into consideration, we shall extend benefit of doubt to Mali Ram and Bhagwan Sahai who have not been attributed any injury. We shall also extend benefit of doubt to Om Prakash, who has allegedly caught hold of hairs of the deceased Chandrapal.
58. Thus, as a matter of abundant caution, the appeal preferred by Mali Ram, Bhagwan Sahay and Om Prakash is accepted. To bring home the guilt of Vimla Meena, her son Chetan Kumar Meena, and Rajendra Yogi, prosecution has succeeded, hence, the appeal preferred by them is dismissed.
59. Having decided the appeals, we are of the view that the application filed by the accused praying that their statements under Section 313 Cr.P.C. be recorded afresh, as same were not recorded by the Presiding Officer is liable to be dismissed, as the said application has been filed at a highly belated stage. It was expected from the accused to file such application as and when their statement under Section 313 Cr.P.C. was recorded. The application has been filed on 12.7.2013, whereas the statement of the accused under Section 313 Cr.P.C. were recorded in August, 2006. The delay in filing the application itself is sufficient for us to dismiss the same as no reason has been given as to why application was not filed at the earliest or at the very moment when the statement under Section 313 Cr.P.C. were recorded.
60. Consequently, the application being devoid of any merit is dismissed.
61. As result of above discussion, D.B. Criminal Appeal No. 1294/2007 is accepted qua Mali Ram and dismissed qua Vimla Meena and Chetan Kumar Meena, and D.B. Criminal Appeal No. 1436/2007 is accepted qua Bhagwan Sahay and Om Prakash and the same is dismissed qua Rajendra Yogi.
