M.L. Shrimal, J.
1. Accused Lal Singh was tried by learned Sessions Judge, Ajmer for offences under Sections 304 and 323 I.P.C. In the course of the occurrence having taken place at 5 p.m. on October 22, 1972. Ratan Singh, a child of six months, is alleged to have sustained injuries at the hands of Lal Singh, as a result thereof he died. His mother Mst. Rami also sustained some injuries in the same occurrence. The defence case is that Mst. Rami was carrying her child, Ratan Singh, on her shoulder. While coming out of the house Mst. Rami struck against the threshold of the door of her dwelling house and fell on the steps as a result whereof Ratan Singh and Mst. Rami both sustained injuries. Learned Sessions Judge, Ajmer by her judgment dated October 30, 1973, held that the injuries received by Mst. Rami and Ratan Singh were not by the result of a fall on the steps, but they were tragically linked with lathi blows, indicted by accused Lal Singh and consequently Ratan Singh succumbed to the injuries later on. The trial Court accordingly convicted the accused appellant under Section 301 Part II, I.P.C. end sentenced him to two years' rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of which to fun her undergo six months' rigorous imprisonment. He was also convicted under Section 323, I.P.C. and sentenced to three months' rigorous imprisonment and to pay a fine of Rs. 50/-, in default of payment of which to further suffer one month's rigorous imprisonment. Both the substantive sentences were directed to run concurrently. Out of the amount of fine imposed, an amount of Rs. 150/- was ordered to be awarded to Mst. Rami by way of compensation.
2. The prosecution story in brief as revealed during the trial is that accused Lal Singh and PW 5 Mal Singh are brothers. Lal Singh was employed in the army. On October 20, 1972, Lal Singh caught hold of Mal Singh and gave beating to him. On Mal Singh's raising a cry, his mother Mst. Bhoori and Dhanna's wife Mst. Phophi came to his rescue. Lal Singh's mother shut Mal Singh and his wife into a room. In the evening of the aforesaid date at about 5 pm Mst. Rami PW 1, wife of Mal Singh with her child Ratan Singh, aged about 6 months, came out of her house. Accused Lal Singh, armed with lathi, followed her and inflicted some blows, which fell on she child's head and also on the shoulder of Mst. Rami. PW 4 Babu Singh, Panna Singh and others intervened. Ratan Singh (since deceased) was taken to the hospital at Jawaja, where the child passed away. A first information report of the occurrence was lodged with the Police Station, Jawaja, PW 11 Manak Lal prepared an inquest memo Ex. P/9 On October 22, 1972, Dr. Dayal Gidwani PW 15 clinically examined Mst Rami. He found two injuries on her person. Her injury report is Ex. P/7. The same Doctor noticed two external injuries on the person of Ratan Singh. On October 23, 1972, autopsy of the dead body on Ratan Singh was performed. Two fractures in the right parietal region and three external injuries were notice don his person. On October 24, 1972, accused Lal Singh was arrested vide arrest memo Ex. P/11. At the instance of the accused a bamboo-stick was recovered from his house. The information was reduced into writing and is marked Ex. P/1. The lathi, recovered in consequence of the information, is Ex. 1. Its recovery memo is Ex P/6. The police, after normal investigation, submitted a challan against the accused in the court of learned Munsif Magistrate, Beawar, who after taking proceedings in accordance with the provisions of Section 207A Cr.P.C. committed the accused to the Court of Sessions Judge, Ajroer for trial under Sections 304 and 323, I.P.C.
3. The accused pleaded not guilty to the charges. The prosecution, in support of its case, examined 11 witnesses, of whom Mst. Rami (PW 1) is the mother of the deceased and is an eye-witness of the occurrence. PW 2 Mst. Dbapu, PW 3 Mst. Phophi, PW 4 Babu Singh, PW 5 Mal Singh and PW 9 Nathu Singh were the eye-witnesses. PW 2 Mst Dhapu and PW 3 Mst. Phophi were, however, declared hostile to the prosecution. The trial court has not pieced any reliance en their statements. PW 5 Mal Singh was on his well at the time of the incident and as such has been not termed as an eye-witness PW 6 Rod Singh and PW 7 Devi Singh are Panchnama witnesses. PW 10 Dr. Dayal Gidwani, clinically examined Mst. Rami and performed pest mortem examination of the dead body of Ratan Singh. PW 11 Manak Lal is the investigating officer. Accused Lal Singh, in his statement recorded under Section 342, Cr.P.C., denied the guilt. He admitted that Rs. 600/- were due to him from Mal Singh. When he demanded the amount, his wife got infuriated amd stated that she would go some where & get the money. In haste and hurry, while going out the struck against the threshold of the house door and fell down with her child. There were five steps on the outer house door, on which Mst. Rami with her child fell down. The accused rushed to the scene, took Mst. Rami and her child to the hospital. In the evening Mst. Rami narrated the same story regarding her fall, but Dhanna Singh instigated her to concoct the details of the occurrence, as he was also a debtor to the accused. In support of his plea he examined two witnesses, of whom DW 1 Mst. Hansi is the mother of both Mal Singh and Lal Singh and DW 2 Neem Singh is their brother.
4. Learned Sessions Judge held that Mst. Rami and Ratan Singh sustained lathi blows at the hands of accused Lal Singh and the injuries sustained by Mst. Rami were not the result of a fall on the staircase With the above finding, the harried Judge held the accused-appellant guilty of the offences punishable under Section 304 (Part II) and Section 325, I.P.C. and sentenced him as aforesaid.
5. Aggrieved by the above judgment, the accused appellant has taken this appeal and challenged his conviction and sentence.
6. It cannot be disputed and has rightly not been disputed that Ratan Singh and Mst. Rami sustained certain injuries at the time and the, place mentioned by the prosecution. It is also not deputed that Ratan Singh succumbed to his injuries. Nonetheless it has been hotly contested by the' appellant that both these persons got injuries not as suggested by the prosecution, but by a fall on the steps.
7. In his ably marshaled argument, learned Counsel for the appellant has urged that it is not clear what moved the accused to cause injuries to Ratan Singh, who was but a small child of hardly six months at age The. first information report was sent to the. Magistrate on October 25, 1972, though the occurrence in alleged to have taken place on October 22, 1972 The delay in sending the first information report to the Magistrate providers a legitimate clue to suspect that it was recorded after the investigating officer had returned to the police station after recording the statements of the witnesses and the time in between was utilised to invent a concocted story. He further urged that the entire prosecution case was sought to be proved by the testimony of interested witnesses. There is considerable doubt, the defence counsel adds, about the truthfulness of the testimony of witnesses in regard to the initiation of the quarrel. The two inmates of the house, equally related to the complainant and the accused, were not examined by the prosecution. It was the accused who has examined them in his defence. Their presence on the scene of the occurrence was but natural. The trial Court has ignored the significance of certain admissions made by PW 10 Dr. Dayal Gidwani, who, in his cross-examination as well as in re-examination admitted that if a child falls on a step and then rolls down on other steps, there could be the possibility of the type of skull-fracture, found on the person of the deceased. The prosecution has also not examined any independent witness of the locality. Mr. Mathur, learned Public Proseccutor, has supported the judgment of the trial Court.
8. The position of law stands well settled on the point that the burden always rests on the prosecution to establish its case beyond reasonable doubt. Lord Bankey, L.C. has aptly observed in Woolninglos v. Director of Public Prosecutions 1935 All. England Reports 1 as follows:
No matter what the charge or where the trial the principle that the prosecution must prove the guilt of the prisoner and no attempt to whittle it down can be entertained.
The burden is neither neutralised nor shifted, because the accused takes a particular plea. The law is further clear that the accused is not required td prove his plea as strictly as the prosecution has to. The evidence though insufficient to establish the plea taken by the accused may be sufficient to negative the factum of the commission of the crime. It may be enough to cause a reasonable doubt in the prosecution case. The burden which rests on the accused to prove his case is not of the same character as the burden of the prosecution to prove charge beyond reasonable doubt. There is consensus of judicial opinion in favour of the view that where the burden of an issue lies on an accused he is not required to discharge the burden by leading evidence to prove his case beyond a reasonable doubt In the words of his Lordship Gajendra Gadkar C.J., in H. Singh v. State of Punjab AIR 1965 SC 97 it has been laid down as under:
Law treats the onus as discharged if the accused succeeds in proving a preponderance of probability.
it is thus the bounden duty of the Court to judge whether the accused here has been able to substantiate by reasonable possibility the plea raised by him or whether the evidence led by him throws a cloud of doubt on the prosecution version.
9. It cannot be gain said that Ratan Singh sustained injuries at the time and place, alleged by the prosecution, as a result Whereof he breathed his last during the same night.
10. Admittedly there is no evidence of motive against the accused for causing the death of Ratan Singh, whereas here if motive as a circumstance is put forward it must like any other incriminating circumstance must be fully established vide Ram Gopal v. Stale of Maharashtra : 1972CriLJ473 . Here no evidence worth the name is for proving the motive to commit the murder of Ratan Singh has been led. Even according to the prosecution the blow was not aimed at Ratan Singh (deceased), but Was aimed at child's mother Mst. Rami.
11. As already stated above, out of the six eye-witnesses, examined by the prosecution, PW 2 Mst Dhapu and PW 3 Mst. Phephi have not supported the prosecution case and PW 5 Mal Singh was away on his well at the time of the occurrence and he cannot be considered to be an eye-witness of the incident.
12. Now remains the statements of PW Mst. Rami, PW 4 Babu Singh and PW 9 Nathu Singh and the statements of the two witnesses, examined by the defence.
13. PW 4 Babu Singh has been termed by the learned Counsel for the appellant as a chance witness. It has been urged that he had no reason to be in the house of Lal Singh or Mal Singh at the time of the occurrence. In his cross-examination the witness stated that he was out of the 'poll' (outer door of the house) at the time when Lal Singh inflicted the lathi blow. He has tried to deny the presence of Beem Singh, the brother of the complainant as well as that of the mother of the complainant in the house, where the occurrence as took, place. PW 5 Mal Singh, father of the deceased, has admitted that DW 2 Beem Singh and Lal Singh accused where repairing the bicycle at the time when he had left for the well. Thus Babu Singh has gone a step further to deny the presence of Beem Singh on the scene of the crime. A suggestion made to the witness in cross-examination further shows that there was a pre-existing quarrel between the accused and the witness. A careful reading of the statement of this witness does create a doubt about his presence on the spot at the time of the incident. Sir George Rankin in Ismail Ahemed Pooprdi v. Momin Bibi AIR 1941 Privy Council 11 has observed as under.
Though the 'chance witness' is not necessarily a false witness it is proverbially rash to rely upon such evidence.
14. PW 9 Nathu Singh is the resident of Jalia Roopwas, whereas the house of the complainant is situated in Jalis Lalawas. In his examination-in-chief this witness has stated that his field was situated at a distance of a furlong from the scene of the occurrence. He heard the cry of a woman and then he rushed to the house of Lal Singh. Thus, this witness cannot be termed to be an eyewitness of the occurrence. He had at the most seen PW (sic) Mst. Rami taking the injured child. In the course of cross examination the witness states as under:
jkeh ls esjh dksbZ ckrphr ugh gqbZ A oks [kqn gh fpYykrh jgh Fkh fd esjs cPps dks ekj fn;k A
Besides this his name has not been mentioned in the first information report, though the same was filed after a considerable time. Not only this, though according to his own statement his field is situated at a distance of a furlong away from the house of the complainant, he has stated that the house of Lal Singh was visible from his well. Thus, the witness seems to have no qualm of conscience. His attempt to become en eye witness from such a long distance in examination-in-chief fully discredits his testimony. In cross-examination he states that when he reached the scene of the occurrence, he saw Mst. Rami PW 1 at a distance of four or five 'pawandas' out of her house. Some time must have elapsed in between first aid to be given to the child and starting out of the house for the hospital. Accordingly the statement of this witness regarding his being an eye-witness cannot be relied upon.
15. Now remains the solitary statement of PW 1 Mst. Rami. There cannot be any doubt that she is an interested and inimical witness. In her examination-in chief she state that the accused used to quarrel with her husband as and when he would return on leave from his job. The witness then states that accused Lal Singh had given beating to her husband prior to this occurrence, but no first information report was lodged at the Price Station. According to her the main quarrel was between Lal Singh and her husband It does not stand to reason why La! Singh should not have quenched her husband instead of belaboring her and the innocent child, when admittedly Mal Singh (her husband) had If ft the house in presence of the a reused a few minutes before the incident. She stated in her examination in chief that Mst. Dhapu and Mst. Phephi got her released from the clutches of the accused. Neither Mst. Phephi nor Mst. Dhapu has supported her statement. In her police statement she had stated that when the fell down Lal Singh caught hold of her hair and dragged her against a hard surface. But the witness in her statement before the Court denied having made such a statement. In her statement before the committing court site stated that an amount of Rs. 300/ was die in favour of Lal Singh accused against Dhanna Singh. But at the time of her examination before the trial Court she denied to have made such a statement A witness giving different versions at different places cannot be relied on, vide Pereyasame v. State of Madras : 1967CriLJ975 . A clear cut suggestion had been made to her that while going out of her house she was having veil on her face and got struck against the threshold of the outer door as a result of which she fell down on the stair case on the outer portion of her house and the child fell down from her hands, and got injured. She bluntly denied this suggestion. The variations noted above relate to the vital part of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case the evidence of the eyewitness cannot be accepted at its face value and it cannot be relied upon implicitly for the purpose of affirming the conviction of the appellant as observed by Hon'ble the Supreme Court in Mitter Sain v. State U.P. : 1976CriLJ857 .
16. The two deft nee witnesses namely, Mst Hansi, the mother and Beemsingh, the brother of the complainant have categorically stated that Lal Singh did not cause any injury to Mst. Rami or her son at the time and place alleged by the prosecution On the contrary they have supported the eh free version and have stated that while going out Mst. Rami got struck against the threshold of the door and fell down on the stair-case. Mst Hansi also stated that there are five steps at the threshold of her house through which one is required to pass to reach the road She also stated that the child fell down and on a cry, made by Mst. Rami, Lal Singh rushed to her rescue. He took the child to Jawaja Hospital, with his brother Beem Singh and Mst. Rami's husband reached the Hospital after some time. To the same effect is the statement of Beem Singh The presence of these two of fence witnesses on the scene of the occurrence at the crucial time has been admitted by the prosecution witnesses They are also close relations of the accused and the complainant and there appears to be no apparent reason why they should side the accused and should not support the prosecution case. Move over, the story put forward by the accused and his defence witnesses finds reasonable corroboration from the statement of PW 10 Dr. Dayal Gidwani, who in the course of cross-examination has said that if a child falls on one step and them roll on other steps, there could be the possibility of sustaining skull fracture. He has further stated that even without there being injuries on other parts of the body there may be fracture of the skull by this sort of fall Even at the stage of re-examination the witness re affirmed his statement under cross examination and stated that it was not necessary that other parts of the body should also struck against the steps or the ground before there can be any injury on the shoulder. It is just possible that the part coming in contact with the ground may be injured. If the child rolls down the stair case, it is not necessary that he should receive injuries on his face or on other parts of his body. There could be a fracture of skull from this kind of fall.
17. Now remains the question of delay in filing the first information report. It mat be mentioned-here that the occurrence is alleged to have taken place on 22-10-72. A copy of the first information report was received by the Magistrate in accordance with the provisions of Section 157 CrPC on 25-10-1972 OS. 157 requires report contemplated by the section to be sent forthwith by the police officer concerned to a Magistrate, empowered to take cognizance of such offence. This is really designed to keep the Magistrate informed of the investigation of the cognizable offences and to give appropriate direction, if necessary under Section 159 CrPC vide Patasingh v. State of Punjab : 1973CriLJ59 , wherein it has been laid down that it is an important check against any abuse or neglect. In the circumstances of this case it raised a reasonable doubt about the fairness and genuineness of the police proceedings.
18. The following observations made by their Lordships of the Supreme Court in Ishar Singh v. The State of U.P. : 1976CriLJ1883 :
Section 157 of the Code of Criminal Procedure, 1898 as well as of 1973 both require the first information report to be sent 'forthwith' to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Anthony suggested, that the first information report was recorded much later than the stated date and hour affording, sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence.
aptly apply to the facts of the case on hand.
19. It may be, as the learned Counsel for the State urged before me, that there is an element of truth in the prosecution story against the accused appellant. Between the words 'may be true' and 'must be true' there is a long distance to travel & whole of this distance must be covered by legal, reliable Sc unimpeachable evidence. I have carefully considered the arguments urged before us by both the sides. In the light of above discussed facts & circumstances of the case it is not possible to hold that the prosecution has been able to bring home the guilt to the accused beyond reasonable doubt. At any rate, the accused is entitled to the benefit of doubt.
20. The result is that appeal is allowed. The order of conviction and sentence passed against the accused-appellant is set aside He is acquitted of all the charges framed against him. The accused is on bail, he need not surrender to his bail bonds.