Dismissed

State of Rajasthan v. Manna Singh and Ors.

Rajasthan HC9 Feb 2023CRLA/317/1990

Case brief

AI extract

What is this about?

This Court dismissed the State's criminal appeal against the trial court's acquittal of seven accused persons. Upholding the conviction dismissal grounds, the Court affirmed that the trial court's decision to disbelieve prosecution evidence due to FIR delays and conflicting testimony was legally sound and reasonable.

What did the court decide?

The criminal appeal filed by the State is dismissed as devoid of merit; the acquittal of the accused is upheld.

State of Rajasthan Vs Manna Singh and Ors. — Murder and Culpable Homicide | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Criminal Appeal No. 317/1990

State of Rajasthan

----Appellant

Versus

Manna Singh S/o Kartar Singh

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Baldev Singh S/o Kartar Singh

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Pappi Singh S/o Dayal Singh

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Mangi Singh S/o Dayal Singh

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Dayal Singh S/o Dalip Singh

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Tidda Singh S/o Bagga Singh

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Sital Singh S/o Pritam Singh

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by caste Majbi - all resident of of Chak 8 Q District Ganganagar (Rajasthan)

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----Respondents

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For Appellant(s) : Mr. B.R. Bishnoi, Public Prosecutor For Respondent(s) : Dr. RDSS Kharlia

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HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

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Judgment

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09/02/2023

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By the Court (Per Hon’ble Vijay Bishnoi, J)

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This criminal appeal is preferred by the State assailing the judgment dated 1.3.1990 passed by the Addl. Sessions Judge No.1, Sri Ganganagar (for short ‘the trial court’) in Sessions Case No.25/88 (64/87), whereby the accused

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respondents - Manna Singh, Baldev Singh, Pappi Singh, Mangi Singh, Dayal Singh, Tidda Singh and Sital Singh have been acquitted from the charges under Sections 148, 302/149, 307/149, 326, 324, 323/149, 302, 325 IPC.

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Since this Court is in receipt of an information that the respondent Nos.5 and 7 namely Dayal Singh and Sital Singh respectively have died and the said fact is verified by the learned Public Prosecutor on the basis of death certificates issued by the concerned Gram Panchayat, the present criminal appeal qua them has been ordered to be treated as abated on 28.9.2022.

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Brief facts of the case are that on 18.7.1987, at 8 AM, Kaku Singh (PW-2) submitted an oral report at Police Station Mathili Rathan, Distt. Sri Ganganagar stating therein that on 17.7.1983, in the evening, his father Buta Singh went to Sarjeet Singh’s house and when he went there to call his father, Sarjeet Singh and Buta Singh were sitting there. He has stated that Dayal Singh is the neighbour of Sarjeet Singh, who is having old enmity with them. He has further stated that when he and his father were going towards their house, then, suddenly the accused respondents, with a common intention, came to Sarjeet Singh’s house alleging that Sarjeet Singh’s son Kala Singh is having illicit relationship with one Lacchad’s wife and they started searching for Kala Singh and when they did not find him there, they attempted to assault

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Sarjeet Singh and his wife Sarjeet Kaur. When his father Buta Singh tried to rescue them, the respondents Manna Singh, Dayal Singh and Sital Singh all armed with gandasi, Baldev Singh armed with lathi , Pappi Singh and Mangi Singh armed with Kasiya and Tidda Singh armed with sela told that they have an old enmity with Buta Singh and his sons as they used to take Sarjeet Singh’s side. After saying this, with the intention to kill, all of them surrounded his father Buta Singh and thereafter respondent Pappi Singh inflicted a kassi blow on the head of his father Buta Singh, on account of which, his father fell down and all of them started beating his father with the arms carried by them and killed him. It is stated by Kaku Singh that when he tried to rescue his father Buta Singh, then, Mangi Singh inflicted a kassi blow on his head, due to which, blood oozed out. Thereafter, Mangi Singh again inflicted a blow on his leg and Baldev Singh inflicted a lathi blow on his left hand. On hearing hue and cry, his brother Mahendra Singh (PW-4), Sarjeet Singh (PW-6), Sarjeet Singh’s wife Sarjeet Kaur and Charanjeet Singh assembled there, then, accused persons dragged his father’s dead body towards their house and threaw it in the open ground. The accused persons threatened that if anybody would go to the police, he would meet the same fate as of Buta Singh. Kaku Singh has further stated that on account of fear of the accused persons, he did not report the matter to the police in

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the night and now he along with his brother Mahendra Singh (PW-2) is reporting the matter.

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On the basis of the said oral report, the police registered FIR No.51/87 at Police Station Mathili Rathan, Distt. Sri Ganganagar against the accused persons and started investigation. After investigation, the police filed charge-sheet against the accused respondents and in due course, the matter was committed to the trial court and the trial court framed charges against the accused persons for the offences under Sections 148, 302/149, 307/149, 326, 324, 323/149, 302, 325 IPC.

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To prove the charges against the respondents, the prosecution produced as many as eight witnesses and also exhibited several documents. Statements of the accused persons were recorded before the trial court under Section 313 CrPC, wherein all of them have denied the charges, except one Sital Singh, who in his statements recorded under Section 313 CrPC, has stated that he inflicted injury from the back side of axe on Kaku Singh as he refused to return his drum which he took away long time ago.

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The trial court, after hearing counsel for the parties and analyzing the evidence produced by the prosecution, has acquitted the accused respondents from the charges levelled against them vide impugned judgment.

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Learned Public Prosecutor has vehemently argued that the trial court has grossly erred in disbelieving the testimony of three eye witnesses namely Kaku Singh (PW-2), Mahendra Singh (PW-4) and Sarjeet Singh (PW-6). It is submitted that all the above-named witnesses were present when the accused respondents were assaulting deceased Buta Singh and Kaku Singh (PW-2). It is submitted that the weapons used in the incident were recovered at the instance of the accused persons and clothes of the accused persons smeared with blood of deceased Buta Singh were also recovered from some of the accused. It is argued that the trial court has disbelieved the testimony of Kaku Singh (PW-2), Mahendra Singh (PW-4) and Sarjeet Singh (PW-6) solely on the ground that there are contradictions in their deposition. Learned Public Prosecutor has further argued that the said contradictions are minor in nature and are liable to be ignored because all the eye witnesses have narrated the full incident and the defence has failed to shake their testimony. It is further submitted that the prosecution has produced cogent and reliable evidence to prove the guilt of the accused persons, but the trial court has disbelieved their testimony without giving strong and justifiable reasons. Learned Public Prosecutor, thus, prayed that the impugned judgment passed by the trial court may be set aside and the accused

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respondents be punished suitably for the charges levelled against them by the trial court.

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Per contra, Mr. RDSS Kharlia, learned counsel for the respondents has vehemently opposed the arguments advanced by the learned Public Prosecutor and argued that the trial court has not committed any illegality in passing the impugned judgment because the prosecution has failed to prove the charges against the respondents by producing cogent and reliable evidence. It is submitted that there is a delay of around 11½ hours in reporting the matter to the police, though from the place of incident, the police station was not far. It is also argued that the place of incident is also doubtful because at one hand, the complainant has alleged that the respondents assaulted him and his father in the house of Sarjeet Singh, whereas on the other hand, he is claiming that they were assaulted by the accused respondents on the way which is far away from the house of Sarjeet Singh. It is also argued that the conduct of Kaku Singh (PW-2) and Mahendra Singh (PW-4) is also highly doubtful because it is unbelievable that despite murder of their father, they did not report the matter to the police for more than 11 hours and went to their house leaving their father’s dead-body.

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Mr. Kharlia has further argued that though the FIR was registered at 8 Am on 18.7.1987, but all the accused persons

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were arrested on 27.7.1987 and it is not the case of the prosecution that they were absconding or not available in the village. Learned counsel has further argued that the recovery of arms from the accused respondents is also highly doubtful as the prosecution has failed to prove the said recovery of arms at their instance beyond reasonable doubt. It is also submitted that the recovery of blood smeared clothes of some of the accused respondents is also highly doubtful as opined by the trial court because it is difficult to believe that even after seven days of the incident, the accused respondents were wearing the same clothes, on which, deceased’s blood was allegedly found. Learned counsel has submitted that the trial court has rightly observed that the prosecution has failed to prove that the blood allegedly found on the clothes of some of the accused is of deceased Buta Singh. It is, thus, submitted that there is no illegality in the impugned judgment passed by the trial court and the well reasoned judgment of the trial court is not liable to be interfered with. Learned counsel has submitted that the view taken by the trial court is a possible view and, in such circumstances, as per the law laid down by the Hon’ble Supreme Court, the High Court should be slow in setting aside acquittal of the accused by substituting its reasons.

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In support of the above contention, learned counsel for the respondents has placed reliance on the decision of the

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Hon’ble Supreme Court rendered in Dhanapal Vs. State, reported in (2009) 10 SCC 401.

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Heard learned counsel for the parties and carefully scrutinized the record.

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From the post-mortem report and the statement of Doctor Om Prakash Sharma (PW-3), who conducted postmortem of the deceased, we uphold the finding of the trial court that the death of deceased Buta Singh was not natural but was homicidal.

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The trial court has disbelieved the prosecution story mainly on the following grounds :

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a) Delay in lodging FIR.

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b) Delay in sending the FIR to the concerned Magistrate.

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c) Discrepancies in the testimonies of witnesses, particularly Kaku Singh (PW-2), Mahendra Singh (PW-4) and Sarjeet Singh (PW-6).

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d) Non production of independent witnesses to prove the incident;

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e) No independent witness was called at the time of recovery of weapons from the accused persons; and

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f) Prosecution has failed to prove that the clothes recovered from some accused and weapons recovered from accused respondents contain blood of deceased.

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As per the prosecution story, the incident took place at about 8 PM in the night of 17.7.1987. Admittedly, Kaku Singh (PW-2) has orally complained about the incident at the concerned Police Station around 8 AM on 18.7.1987, as such, there is a delay of more than 11 hours in filing the complaint. The complainant - Kaku Singh (PW-2), Mahendra Singh (PW-4) and Sarjeet Singh (PW-6) have submitted explanation that as the accused persons had threatened them that if anyone is going to file complaint about the incident, he would be killed as deceased Buta Singh is killed. The above-referred witnesses have stated that out of fear, they had not reported the incident to the police immediately. It is also stated by Kaku Singh (PW-2) that the accused persons were giving threats whole of the night, but have failed to explain that how the threats or the fear of the accused persons disappeared in the morning when he reported the matter to the police. The trial court has rightly observed that the reasons as to how the said threat, given by the accused respondents, had disappeared, has not been explained by the complainant and other witnesses.

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It is to be noticed that the deceased was father of Kaku Singh (PW-2) and Mahendra Singh (PW-4) and it is difficult to believe that despite murder of their father, they went to their house and did not report the incident to anybody prior to filing of the complaint before the police. Though, mere delay

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in filing FIR is not proved fatal in all cases, however, it can be a factor to judge the credibility of the prosecution story.

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The Hon’ble Supreme Court in Jitender Kumar Vs. State of Haryana, reported in AIR 2012 SC 2488 has held as under :

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“30. It is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of a case, delay in lodging the FIR can be one of the factors which corrode the credibility of the prosecution version. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The Court has to seek an explanation for delay and check the truthfulness of the version put forward. If the Court is satisfied, then the case of the prosecution cannot fail on this ground alone. [Ref. Yakub Ismailbhai Patel v. State of Gujarat [MANU/SC/0700/2004 : (2004) 12 SCC 229], State of Rajasthan v. Shubh Shanti Services Ltd. V. Manjula S. Agarwalla and Ors. [(2000) 5 SCC 30].”

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As stated earlier, the conduct of prosecution witnesses, particularly Kaku Singh (PW-2) and Mahendra Singh (PW-4) is highly doubtful because even witnessing the murder of their father, they failed to act swiftly. In such circumstances, in the present case, the delay in lodging the FIR is proved to be fatal and makes the prosecution story highly doubtful.

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Though, FIR in the matter was lodged at 8 AM on 18.7.1987, but copy of the same was sent to the concerned Magistrate in the evening at about 6:45 PM on 18.7.1987. From the evidence available on record, it is revealed that the concerned Magistrate was at Sri Ganganagar, which is around

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18 kms far from the police station, however, the trial court has taken into consideration the fact that the SHO namely Rajendra Singh (PW-7) has admitted in his statement that he visited the place of incident in between 8 to 9 AM and immediately sent constable Sukhpal Singh to Sri Ganganagar to call a photographer. The Investigating Officer has failed to explain that when constable Sukhpal Singh was sent to Sri Ganganagar to call the photographer then why copy of the FIR was not sent with him to be presented before the concerned Magistrate.

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The Hon’ble Supreme Court in Arjun Marik and Ors. Vs. State of Bihar, reported in 1994 Supp (2) SCC 372 has made important observations in respect of delay in sending the FIR to the Magistrate. The relevant observations are reproduced hereunder :

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“24………..Section 157 of the CrPC mandates that if, from information received or otherwise, an Officer-incharge of Police Station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empower to take cognizance of such offence upon a police report. Section 157, Cr. P.C. thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159, Cr.P.C. envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the CrPC. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the combined reading of Sections 157 and 159 Cr.P.C. It has the dual purpose,

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firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch in the progress of the investigation.”

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So the delay in sending the FIR to the Magistrate also raises serious doubt about the prosecution story.

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The trial court has disbelieved the testimonies of three main witnesses namely Kaku Singh (PW-2), Mahendra Singh (PW-4) and Sarjeet Singh (PW-6) while observing that there are certain discrepancies in their testimonies, which are of significant in nature and on account of that, there testimonies cannot be relied upon. The trial court has also observed that the above-referred three witnesses are interested witnesses, however, the prosecution has failed to produce any independent witness to corroborate the version of the abovereferred witnesses.

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We have carefully scrutinized the evidence of Kaku Singh (PW-2), Mahendra Singh (PW-4) and Sarjeet Singh (PW-6) and found that the discrepancies pointed out by the trial court in their testimonies are of significant nature and non-reliance by the trial court on their testimonies is supported by cogent reasons. The trial court has rightly observed that the abovereferred witnesses are interested witnesses and the prosecution has failed to produce any independent witness to corroborate their version and, as such, the prosecution has failed to prove the charges against the accused respondents.

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It is to be noticed that Kaku Singh (PW-2), in his oral complaint, has stated that after hearing the cries, his brothers Mahendra Singh and Charanjeet Singh reached the place of incident and Sarjeet Singh and his wife Sarjeet Kaur had also assembled there along with other residents of the village and witnessed the incident. In his court statement, Kaku Singh (PW-2) has stated that at the time of incident, Vichitra Singh, Jodh Singh and Balvindra Singh were also present, however, neither Sarjeet Kaur nor Vichitra Singh, Jodh Singh, Balvindra Singh and Charanjeet Singh were produced by the prosecution and this fact goes against the prosecution.

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The trial court has disbelieved the recovery of weapons at the instance of accused respondents while observing that no independent witness was called at the time of recovery of those weapons.

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All the accused respondents were arrested on 24.7.1987 and recovery of weapons were also effected from them on 27.7.1987 and 28.7.1987 and only Mahendra Singh (PW-4) and Sarjeet Singh (PW-6) were made witnesses of the said recovery of weapons. The Investigating Officer Rajendra Singh (PW-7) has not furnished any explanation why independent witnesses were not summoned at the time of recovery of weapons from the accused persons.

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The police recovered Payjama of respondent Baldev Singh and one Chola (long shirt) of respondent Mangi Singh at the time of their arrest i.e. 24.7.1987 and in the recovery memo, it is mentioned that blood was found on the said clothes. As per the prosecution, the blood found on the clothes of respondents Baldev Singh and Mangi Singh is of deceased Buta Singh. The trial court has disbelieved the said recovery while observing that it is difficult to believe that the above-referred two accused persons were wearing the same clothes after seven days of the alleged incident.

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The trial court has also disbelieved the case of the prosecution that the blood found on the clothes of some of the accused and the weapons recovered at the instance of accused respondents is of deceased Buta Singh and rightly so.

¶104

Having carefully scrutinized the prosecution evidence, we are convinced that the view taken by the trial court acquitting the accused respondents was a possible view and in that situation, this Court is not required to interfere in the impugned judgment.

¶105

The Hon’ble Supreme Court in Dhanapal’s c ase (supra) has held as under :

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“39. The following principles emerge from the cases above :

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The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the

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trial court. The trial court's acquittal bolsters the presumption that he is innocent.

¶112

The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

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The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

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The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

¶115

If two reasonable or possible views can be reached - one that leads to acquittal, the - other to conviction the High Courts/appellate courts must rule in favour of the accused.”

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Having considered the entire evidence produced by the prosecution and taking into consideration the reasons given by the trial court for acquitting the accused respondents, we are of the opinion that the view taken by the trial court is possible and plausible.

¶117

In view of the above discussion, this criminal appeal being devoid of merit is hereby dismissed.

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(PRAVEER BHATNAGAR),J

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(VIJAY BISHNOI),J

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118-msrathore/-

State of Rajasthan v. Manna Singh and Ors.

Case brief

What is this about?

What did the court decide?

State of Rajasthan v. Manna Singh and Ors.

Case brief

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What did the court decide?

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