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State Vs. Nidhan Singh and ors. - Court Judgment

LegalCrystal Citation
CourtJammu and Kashmir High Court
Decided On
Reported in1984CriLJ1362
RespondentNidhan Singh and ors.
- 'adda barian', situated on the jammu-pathankot highway assaulted him. it is alleged that harnam singh deceased was coming on a cycle and that nidhan singh respondent on seeing him raised a 'lalkara' to catch hold of him and not to let him go alive, accordingly, kuldeep singh respondent no. 3, caught hold of harnam singh by his waist and nidhan singh respondent no. 1 inflicted 2/3 blows with 'darat' on the head of the deceased. jagjeet singh respondent no. 2 also inflicted lathia blows on his back. harnam singh fell down and succumbed to his injuries. gurmeet singh s/o the deceased, who was following his father, to adda barian for making some purchases, saw the, entire occurrence himself and raised hue and. cry, hearing which the accused persons ran away.gurmeet singh then rushed,.....

A.S. Anand, J.

1. Nine persons namely, Nidhan Singh, Jagjit Singh son of Nilkha Singh, Kuldip Singh son of Wadhava Singh, Dewan Singh son of Nihal Singh, Nihal Singh s/o Man Singh, Manga Singh s/o Mangal Singh, Tara Singh son of Milkha Singh, Shonku Ram son of Kirpa Ram and Ajit Singh s/o. Ram Singh residents of village Sunjwan, Tehsil Samba, were arrayed as accused persons in reject of an occurrence which took place on 18.6.1971 at about 6 a.m. at Adda Barian in which one Harnam Singh was allegedly murdered. The accused persons were tried for offences under Sections 302/34/120-B. Rule P.C. The learned Sessions Judge, Jammu vide his judgment dt. 6.11.1972 acquitted all of them of all the offences. The State has come up by way of an appeal against their acquittal.

2. On 2.3.1973, this appeal was-admitted only as against respondents 1, 2 and 3, namely: Nidhan Singh, Jagjit Singh and Kuldeep Singh. The appeal against the acquittal of the remaining 6 accused was dismissed in limine with the. result that their acquittal stood confirmed by implication.

3. According to the prosecution case, all the 9 accused had assembled at the house of Kuldeep Singh respondent No. 3 on the night of 17th of June, 1971 and had entered into a criminal conspiracy to put an end to the life of Harnam Singh and that in furtherance of that conspiracy, the first three respondents, namely; Nidhan Singh, Kuldeep Singh and Jagjeet Singh, on 18.6.1971 lay in wait for the deceased. Harnam Singh, early in the morning and sighting him at 'Adda Barian', situated on the Jammu-Pathankot Highway assaulted him. It is alleged that Harnam Singh deceased was coming on a cycle and that Nidhan Singh respondent on seeing him raised a 'Lalkara' to catch hold of him and not to let him go alive, Accordingly, Kuldeep Singh respondent No. 3, caught hold of Harnam Singh by his waist and Nidhan Singh respondent No. 1 inflicted 2/3 blows with 'Darat' on the head of the deceased. Jagjeet Singh respondent No. 2 also inflicted Lathia blows on his back. Harnam Singh fell down and succumbed to his injuries. Gurmeet Singh s/o the deceased, who was following his father, to Adda Barian for making some purchases, saw the, entire occurrence himself and raised hue and. cry, hearing which the accused persons ran away.

Gurmeet Singh then rushed, alone to' Police Station Samba where he lodged the FIR at about 8.30 a.m. The first three respondents were named as the accused persons and it was also mentioned in the FIR that besides them some other persons were also present and had taken part in the murder of Harnam Singh. Old standing litigation and enmity was disclosed as the motive for the assault on Harnam Singh. After the FIR was lodged the investigating officer, S. Ravel Singh S.H.O. proceeded to the spot and started the investigation. He recorded statement of the witnesses under Section 161 Cr.P.C. and took into possession a bag, a bicycle and an identity card belonging to the deceased from the place of occurrence. Some blood stained earth was also seized and sealed and the dead body of Harnam Singh was sent to the Hospital for post-mortem. The first three respondents were arrested and in pursuance of the information, allegedly given by Nidhan Singh respondent No. 1, a Darat, Ex. P.1 was recovered and taken into possession from the compound of his house. A shirt of respondent No. 1, allegedly stained with blood was also seized. A Lathi was allegedly recovered from Jagjeet Singh respondent No. 2. The post-mortem was conducted by Dr. Jugal Kishore P.W. who found the following injuries on the person of the deceased:

1. An incised wound frontal region scalp centre. It was 3' X 1/4' wide reaching up to bone.

2. An incised wound 3' long 1/4' wide reaching up to bone on frontal region right side.

3. An incised wound extending from right parietal region to the occipital region. It was about 4' long and goes up to bone. It was 1/4' wide.

4. A Contusion behind the right ear on right mastoid process.

5. An incised wound extending from centre of scalp to occipital region. It was 1' long 1/6 wide gaping.

6. Compound fracture right fore-arm middle. The skin wound was about 4' long and all the soft tissues along with bones had been cut through except for a tag of skin on medial side. The wound was incised in nature.

7. An incised wound right fore-arm just below elbow. It had peeled of & skin for about 3' and a triangular flap of skin was hanging. This was skin deep.

8. An incised wound left wrist joint dorsum 1' long skin deep gaping.

9. Multiple bruises left elbow joint.

10. An incised wound left leg 4' long ' deep in lower 1/3rd of the leg.

11. An incised wound left leg 3' long skin deep in lower 1/3rd of leg 1' above and parallel to injury No. 10.

12. An incised wound 5' long 4' deep, 3' wide cutting through skin head of talus, lower end of Fibula and going upwards and cutting through Tibia. This was on the right ankle and lower leg outer side.

13. Incised wound right skin middle 1' long cutting ' through bone.

14. An incised wound lower 2/3rd of right leg cutting through Tibia and Fibula as well as soft tissues. The leg was hanging by skin only on medial side.

15. Multiple incised wounds on lower leg outer side just below the right knee joint. The head of Fibula and upper end of Tibia were cut in multiple pieces and would open in the knee joint. The wound was about 7' long, 3' deep and 4' wide.

16. An incised wound vertical 3' long on right knee cutting through skin and right patella and opening in the knee joint.

17. An incised wound about 2' long on the inner of the right index finger on middle and terminal phalanges.

3. The prosecution with a view to connect the accused with the crime, besides the medical evidence relied upon the eye witness account of Gurmeet Singh, Behari Lal, Mansa Ram, Parma Nand and Baldev Singh and the recovery of Darat allegedly made on the disclosure statement of Nidhan Singh respondent No. 1. When examined under Section 342 Cr.P.C. the accused denied their participation and alleged false implication. They examined Saran Singh, Des Raj, Gian Singh and Bishan Dass in defence.

4. After appreciating the evidence led by the prosecution, the learned Sessions Judge came to the conclusion that the occurrence had taken place, not at Adda Barian as alleged, but at some other place in the darkness of the night; that not only the charge of conspiracy was not made out but also that the first three respondents were implicated on basis of suspicion and that there was no legal proof to connect them with the crime alleged against them. He consequently acquitted them.

5. Appearing before us, Mr. Salaria, the learned Advocate General has submitted that the appreciation of evidence by the trial court was wholly erroneous and that Gurmeet Singh and Behari Lal P. Ws who have given a consistent account of the occurrence have been wrongly disbelieved and the prosecution evidence had been rejected by the trial court for inadequate reasons.

6. Mr. T.S. Thakur, learned Counsel for the accused respondents, has, on the other hand, submitted that not only was the appreciation of the evidence by the trial court proper but that there were other circumstances also in the case which justified the acquittal of the. accused respondents. He pointed out that the FIR was delayed and that the investigation was tainted. Learned Counsel argued that in an appeal against acquittal, even if it may be possible to say that two views of the evidence were reasonably possible, the High Court while hearing an appeal against acquittal ought not to interfere with the order of acquittal.

7. We have given our careful consideration to the respective contentions raised at the bar and have, with the assistance of learned counsel for the parties, gone through the evidence.

8. Though, the High Court is generally reluctant to interfere with an order of acquittal unless the same has resulted in a grave miscarriage of justice and there are compelling reasons to set it aside, the powers of the High Court in an appeal against acquittal are not different from the powers of the Court in hearing an appeal against conviction. The High Court in dealing with such an appeal can go into all questions of fact and law and arrive at its own conclusion on the evidence. It, however pays due regard to the observations and findings recorded by the trial court which had the benefit of examining the demeanor of the witnesses also. The High Court in reversing the judgment of the trial court has to pay due regard to all the reasons given by the trial Judge for disbelieving a particular witness, and must make an attempt to dispel those reasons effectively before taking a contrary view in the matter. It is so because an accused starts with a presumption of innocence when he is put up for trial and his acquittal in no sense weakens that presumption. It is in the light of these settled principles, broadly speaking, that we propose to proceed and discuss the facts and points of law involved in this appeal.

9. So far as the motive is concerned, from the evidence of Gurmeet Singh P.W. it does transpire that there was some litigation going on between the respondents on the one hand and Harnam Singh deceased on the other. However, I motive is a double-edged sword. Whereas motive can lead to the commission of a crime, its existence also can lead to false implication of adversaries. From a perusal of the evidence or record, we find that the litigation which was pending between the parties was an old litigation. The prosecution has not disclosed either the nature of the litigation or as to what was the cause for the immediate attack by the accused on the deceased, and it is not eyen. alleged that the occurrence took place near about the date fixed in the case. Therefore, it is difficult to say whether the pending litigation provided sufficient motive for the respondents to commit the murder of Harnam Singh. It appears to us that faced with this difficulty, the investigating agency introduced the 'Lalkara' by Nidhan Singh to the effect that '(Harnam Singh) should be caught hold of and should not be allowed to go away alive'. Such imputations, experience tells us, are a device, generally pressed into aid by the prosecution to supplement feeble evidence of intention or knowledge. These imputations are generally used to supply the missing proof and, in this case, we find that the 'Lalkara' was attributed to Nidhan Singh only with a view to supply the missing proof of the alleged intention to commit the murder of Harnam Singh. We are, therefore, not satisfied that the prosecution has been able to establish that there was any sufficient motive for the respondents to commit the alleged crime.

10. Mr. Thakur, learned Counsel for the respondents, urged that the FIR in this j case was delayed and in support of his argument he has drawn our attention to the fact that the special report reached the Magistrate on 21.6.1971 who is located at a distance of only 7 K.Ms. The learned trial court also took this aspect into account while recording the order of acquittal and in our Opinion also, this circumstance casts a doubt on the bona fides, of the investigating agency.

11. Section 154 Cr.P.C. provides for the recording of First Information Report in cognizable cases. It lays down that every information relating to the commission of a cognizable offence, if given orally to an officer incharge of a police station, Shall be reduced into writing by the officer-in-charge or under his direction and that every such information, given in writing or reduced into writing, shall be signed by the person giving it. Section 157 Cr.P.C. lays down that if from the information received an officer incharge of the Police Station has reasons to suspect the commission of a cognizable offence 'he shall forthwith send a report of the same to a Magistrate, empowered to take cognizance of such, offence upon a police report' and shall proceed in person or depute his subordinates to the spot to investigate the facts and circumstances.

A First Information Report is an ^important document even though it is not a substantive piece of evidence. Its prompt lodging lends credence to the prosecution version and diminishes the possibility of a colored version being put up by the complainant in the report. It is for this reason that the courts view with concern any delay in the lodging of the FIR. Law provides for the time and date of the lodging of the FIR to be recorded on the register and that record serves as an internal check about the promptness with which the FIR was lodged. The prompt lodging of the FIR, to a great extent, brings out the spontaneous version of the occurrence and rules out the possibility of a colored and though-out version being put up. The legislature by providing in Section 157 Cr.P.C. that the officer Incharge of the Police Station shall forthwith send a copy of the report to the Magistrate concerned provided an external check for the prompt lodging of the FIR, This section provides a safety valve in cases where the FIR is either ante-timed or ante I dated. The receipt of the special report by the Magistrate in time lends credence to the prompt lodging of the FIR and as unexplained delay in the receipt of the I special report by the Magistrate concerned creates a doubt about the promptness of the FIR and puts the court on its guard.

12. In the instant case, it is alleged that Gurmeet Singh immediately after witnessing the occurrence rushed to Police Station Samba and lodged the FIR. The report is purported to have been lodged at 8-30 a.m. In the FIR, the informant stated that Harnam Singh had succumbed to the injuries and had died. The FIR, therefore, clearly disclosed the commission of a cognizable offence. It was as such obligatory on the police to have forwarded the Special report to the Magistrate concerned forthwith. That was apparently not done. The special report was received by the Magistrate concerned on 21.6.1971, after more than three days. No explanation, whatsoever, is forthcoming for this delayed receipt of the FIR by the Magistrate whose court was admittedly located only at a distance of about 7 K.Ms. from the Police Station. Not only this, even the Superintendent of Police, Jammu, received the copy of the special report on 21.6.1971 itself as per the statement of Gian Singh constable D.W.

It, therefore, appears that the copies of the special report were despatched to the Superintendent of Police and the Magistrate on 21.6.1971 only and not before it. Neither the Investigating Officer nor any other witness has disclosed the reason for the delayed receipt of the FIR. The possibility, therefore, that the report as ante-dated cannot be lightly brushed aside and it casts a serious doubt about the time and the date when the report was lodged. The argument of the learned Advocate General that since the names of the three accused were mentioned in the FIR and they were arrested on 18.6.1971 itself, the possibility that the FIR was antedated is ruled out and that the delay may have been due to negligence of the Incharge does not appeal to us. True, the FIR does contain the name of the First three respondents, as the assailants, and we have it from the evidence of S.R. Ravel Singh P.W. that these respondents were arrested on 18.6.1971, but these circumstances do not conclusively show that the FIR was in existence on 18.6.1971 at 8.30 A.M., as alleged by the prosecution. From the statement of Gurmeet Singh, we find that after he came back from the Police Station along with the police, party, his statement was. recorded at the spot. If Gurmeet Singh had lodged the FIR at the police station, as alleged, then there was no occasion for the police to record another statement of Gurmeet Singh at the spot. The prosecution has not explained as to why another statement of Gurmeet Singh was recorded at the spot. It appears to us that the FIR was not lodged at the Police Station at 8.30 A.M. and that after the police came to know about the occurrence, they reached the spot and there recorded the statement of Gurmeet Singh and arrested the first three accused. on suspicion and then proceeded to carve out the prosecution story. The conclusion arrived at by the trial court, therefore, is reasonable and proper and this lacuna in the prosecution case is of great importance in so far as the defence is concerned.

13. Connected with the delayed recording of the FIR is another circumstance that there is a serious; conflict between the ocular testimony and the medical evidence, which also i, discredits the prosecution case to a very i great extent.

14. According to Gurmeet Singh and, Behari Lal P.W.s the son and the tenant of the deceased respectively, Nidhan Singh respondent No. 1 is alleged to have inflicted 2/3 blows on the head of the deceased with the 'Darat'. Besides these injuries no other injury is alleged to have been caused by Nidhan Singh with the Darat on any other parts of the body of the deceased and no other accused is also alleged to have been armed with any sharp edged weapon nor is it the prosecution case that the companions of Nidhan Singh also caused incised injuries on the I deceased. As a matter of fact, the case of the prosecution itself, as put to Nidhan Singh respondent in his statement under Section 342 Cr.P.C., is to the effect that he gave 2/3 blows with the Darat on the head of the deceased. The medical witness Dr. Yugal Kishore, however, found, as many as 14 incised wounds on different parts of the body of the deceased besides some multiple incised wounds on the outer side of the lower leg, below the right knee joint. It also found a contusion behind the right ear and multiple bruises on the left elbow joint. If Gurmeet Singh and Behari Lal P. W.s had seen the occurrence, as alleged by them, they would not have failed to indicate as to how and by whom the remaining incised injuries on the other parts of the body of the deceased came to be inflicted. The prosecution is singularly silent about the author of those injuries. There is, thus a serious conflict between the medical evidence and the ocular testimony and this conflict not only discredits to a great extent the prosecution case but also lends support to the argument of Mr. Thakur that the occurrence had taken place in a different manner and the eyewitnesses have only drawn on their imagination to implicate the accused persons, on account of misguided suspicion.

Though, generally speaking, medical evidence is only an evidence of opinion which is hardly decisive and often inconclusive and need not be given preference over the ocular evidence, but where the conflict is with regard to the number and nature of injuries present, as per medical evidence, and allegedly inflicted as per the ocular testimony, it becomes the bounden duty of the prosecution to explain the conflict and the failure of the prosecution to explain it entitles the defence to the benefit of the doubt. In the instant case no attempt whatsoever has been made by the prosecution to explain it. The prosecution has not disclosed as to who was the author of the remaining injuries on the deceased and by which weapon. This is a very serious lacuna and the learned trial court was right in using this circumstance against the prosecution.

15. That apart, we find that the investigation in this case has also not been fair. Parma Nand and Mansa Ram P.W.s were named in the FIR as the eye witnesses. The prosecution possibly wanted to examine these independent witnesses to lend support to the testimony of Gurmeet Singh, the son of the deceased, and Behari Lal the tenant of the deceased. Both these witnesses, however deposed at the trial that they had not seen the occurrence and that they had been told about it later. On their own showing, therefore, they were not the eyewitnesses. It appears that both Gurmeet Singh and Behari Lal mentioned the names of Parma Nand and Mansa Ram P.W.s as the eyewitnesses in the hope that both these witnesses were likely to support them and since both these witnesses have denied any knowledge of the occurrence, the reliability of Gurmeet Singh and Behari Lal P.Ws is also, in our opinion, materially detracted.

That apart, a careful perusal of the evidence of Gurmeet Singh P.W. has created an impression on our mind that he is not a witness of truth. In this connection it would also be relevant to point out that his conduct at the time of the occurrence and later was so unnatural that it belies the possibility of his being present at the Adda at the time of the occurrence. According to his testimony, he was following his father, when the accused allegedly raised the 'Lalkara'. He did not, however, rush to the aid of his father, which a son would have normally done had he been present. Again, though he stated that he went to the police station to lodge the report we have noticed that he admitted in the cross-examination that his statement was recorded by the police at the spot. He also conceded in cross-examination that he did not accompany the dead body to the hospital when the same was taken for postmortem examination and that during the two hours or more which elapsed between the assault and the removal of the dead body, he did not even go to his house to inform his mother and other relations, nor sent any one else for that purpose. According to his evidence he did not try to save his father and did not even offer any first aid or tied the wounds of his father, which were bleeding, with his turban or handkerchief. Had he been present and witnessed the occurrence, then in the normal course of human conduct he would have done all that and much more for his father. In our opinion, in all probability, he was not present at the time of occurrence and was later on introduced as an eyewitness.

Behari Lal P.W. also, in our opinion, is a got-up witness because not only it is borne out from the record that the place of assault was not visible from his tea-stall but even he did not (Sic) naturally when he saw the assault being committed on his landlord. His name does not find any mention in the inquest report Ex. P.T. He being the tenant of the deceased is undoubtedly an interested witness and though that alone is not a sufficient ground to discredit his testimony as a whole, yet his testimony has not impressed us and without sufficient corroboration it would not be safe to upset an order of acquittal.

16. Thus, keeping in view the infirmities, noticed by us above, it cannot be said that the conclusions arrived at by the learned trial court, on the basis of the evidence on the record, were either unreasonable much less perverse. We, therefore, do not find any substantial or compelling reason to take a view different than the one taken by the learned Sessions Judge and we accordingly dismiss this appeal. Respondents 1, 2 and 3 are on bail. Their bail bonds shall stand discharged.

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