TMI Blog1977 (8) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... however has taken a different view and reversed the order of acquittal passed by the trial Court and held that the prosecution case was amply proved against the appellants and convicted the appellant Bir Singh under Section 302 and sentenced him to imprisonment for life. He was also convicted under Section 307 read with Section 34 and sentenced to 7 years rigorous imprisonment. The appellant Ram Dularey Singh was convicted under Section 307 and sentenced to 7 years rigorous imprisonment and also under Section 302 read with Section 34 and sentenced to imprisonment for life. The third appellant Hukum Singh was convicted under Section 302/34 and sentenced to life imprisonment and also under Section 307 read with Section 34 to 7 years rigorous imprisonment. The appellants have filed the present appeal against the aforesaid order of conviction and sentences passed by the High Court. 3. The facts of the present case lie within a very narrow compass and the occurrence appears to be a result of a chronic dispute between two factions in the village. The complainant and the witnesses examined by the prosecution to prove its case bear serious animus against the appellants and were interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Bir Singh, Vidya Vinod Singh had a licensed gun. Against the background of these facts let us now proceed briefly to analyse the case made out by the prosecution against the appellants. 5. It is said that on the 9th Nov., 1967 at about 4 p.m. Bir Singh and Hukum Singh came to the place of occurrence which is near a tank and started digging the earth from the Sahan of Man Singh, brother of the deceased Bans Gopal. Shrimati Rampati, widow of Man Singh and P.W. 3 Vidya Devi objected to the action of the appellants but they paid no heed to the protests of these persons. P.W. 1 Surajpal Singh the son of the deceased was cutting fodder . on the Chabutra in front of his door. Meanwhile Bans Gopal arrived at the scene of occurrence and asked Bir Singh and Hukum Singh not to dig earth and this led to an altercation. Bans Gopal snatched the spade from the hands of Bir Singh and threw it away. This appears to have given serious provocation to the appellants who after giving threats went to the houses and returned to the spot variously armed. Bir Singh was armed with a double barrelled gun, Hukum Singh with a rifle and Ram Daularey Singh with a country made pistol. Hukum Singh gave th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al diary to the higher officers. The learned Sessions Judge who had the original diary before him had found that there were interpolations and overwriting where the name of Ram Dularey Singh was written. The Sessions Judge after inspecting the diary found that the possibility of Ram Narain having been converted to Ram Dularey could not be excluded. Thus the defence seems to suggest that the prosecution had first decided to implicate Ram Narain Singh but when it found that at the time of the occurrence Ram Narain Singh was posted at Banda and could furnish a cast iron alibi which would have destroyed the prosecution case, the name of Ram Dalarey Singh was substituted. He was therefore given the role of shooting with a country made pistol. If this is true then all prosecution witnesses who lent themselves to support this false version cannot be believed at all. The High Court has not reversed this finding of the Sessions Judge and has in fact found that the over-writing was undoubtedly there where the name of Ram Daularey Singh was mentioned. We shall advert to this aspect of the matter when we deal with the general diary which has been the subject-matter of serious comment by the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused was taking place Shambhu Bhujwa and Bhikari apart from Roshan Singh had come to the scene of occurrence. Both Shambhu Bhujwa and Bhikari were independent witnesses and bore no animus against the accused. Even from the evidence it would appear that these two persons had seen the entire occurrence. 9. P.W. 2 Sughar has clearly stated that at the time of altercation Roshan and Bhikari were present at that place. Similarly, P.W. 3 Vidya Devi has stated at page 29 of the paper book that while the altercation was going on Roshan and Bhikari came to the scene of occurrence. Similar is the evidence of P.W. 4 Roshan Singh at page 35 of the paper book where he says that when the altercation was going on Shambhu Bhujwa and Bhikari Khatic were at that time present there. It would thus appear from the evidence of eyewitnesses that Shambhu and Bhikari were exactly in the same position as the eye-witnesses and yet no reasonable explanation has been given by the prosecution for not examining them. It is true that it was not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. This rule however does not apply where the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecutor did not challenge the statement of the Investigating Officer that the seal was dated 10th Nov. 1967 which indicated that the F.I.R. was received by the S.P. Office on that date. The theory of mistake put forward by the Investigating Officer seems to have been accepted by the prosecution. No application was made to the Sessions Judge to call for the records of the S.P. Office or any witness from there to find out as to when actually the F.I.R. was received; It is therefore, manifest that the case itself was that the F.I.R. was received in the S.P. Office on 10th Nov. 1967 which lent intrinsic support to the suggestion of the defence that the F.I.R. was lodged on 10th Nov. 1967 and was riot lodged on 9th Nov. 1967 when it was purported to have been lodged. The High Court brushed aside the finding of the Investigating Officer on the ground that the explanation given by him was wrong because he may not have been in the know of things. This process of reasoning is purely speculative. P.W. 5 Umesh Chandra Varma the Investigating Officer was attached to the Kotwali Police Station in the town of Unnao where the office of the S.P. was situated. He had every day dealings with the S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there could be no question of his receiving the F.I.R. after 7.30 p.m. The witness is unable to decipher the initial of the person who had initialled the endorsement. Later on he in his statement states that he usually left the office at 7 p.m. but sometimes he left at 7, 8 or 9 p.m. according to the volume of work. The witness further says that' no register is kept in the Police Office in which the timings of arrival and departure of the witness are recorded which does not appear to be true because an office like that of the S.P. where as many' as 30 to 35 persons work daily it is difficult to believe that the office would not have any attendance register showing the time of arrival and departure of the officials. It seems to us that this witness has tried to support the prosecution case by showing his presence on 9th Nov. 1967 till 9 p.m. although in his previous statement before the same Court he categorically stated that on the 9th Nov. 1967 he had left the office at 7 p.m. In these circumstances we place no reliance on the evidence of this witness. The High Court indulged in another conjecture that the F.I.R. must have been sent to the P. P. and to the Elaqa Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for these over-writings and has also omitted to draw an adverse inference against the prosecution. The High Court observed thus: It is true that some rewriting is there in the general diary at the place where the name of Ram Dularey is there, but it is not known as to what particular word was there at the place where the said name was written. It would thus follow that there might have been some clerical error in the general diary report and the same was later corrected but it would be incorrect to say that the name of Ram Narain Singh was later substituted by the name of Ram Dularey Singh by effecting the said rewriting. The High Court thus seems to have brushed aside this manifest defect in the general diary by ascribing it to a mere clerical mistake and has not given any good reason to reverse the finding of the Sessions Judge who on a careful perusal of the general diary had come to the definite opinion that the possibility of Narain having been converted to Dularey Cannot be completely excluded. If the prosecution could go to the extent of substituting the name of Ram Dularey Singh for Ram Narain Singh then no reliance can be placed on the evidence of witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t mention this fact in the F.I.R. or before the committing Magistrate. When the witness himself admitted that he had not mentioned this fact in his evidence there was nothing further which the accused could have done. On the other hand, the most extraordinary thing is that P.W. 2 who was injured and who is said to have fallen on the wood and sustained injuries on the leg and elbow thereby does not say a single word about the presence of wood on the ground or about his having sustained injury in the elbow because of that wood. 17. P.W. 4 Roshan Singh is another witness who says that P.W. 2 Sughar had fallen down on the wood. This witness also made a statement for the first time in the Court of Session and in this connection he has admitted as follows: Today for the first time I have stated this thing in the Court of Session that on sustaining the injury Sughar had fallen down on the wood. It is not correct that on being tortured I have stated this thing that on sustaining injury Sughar fell down on the wood. Thus the theory of the witness having fallen down on wood appears to have been introduced for the first time in the Sessions Court and appears to as to be a pure embell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution case. 19. Another important argument advanced by counsel for the appellants is that there is absolutely no evidence to show that there was any blood at the place where P.W. 2 fell down. It was contended that according to the Doctor's version having regard to the injury, blood must have been oozing out. If the blood was there then the Investigating Officer could not have failed to notice the same. The fact that blood at that place was not indicated in the sketch map dearly shows that P.W. 2 did not receive injuries at that place. This is undoubtedly an important aspect which merits serious consideration. The Sessions Judge seems to have commented on the fact that P.W. 2 did not accompany the dead body but in our opinion nothing much turns on that because P.W. 1 must have been in a hurry to rush to the Police Station and as P.W. 2 was seriously injured, he may not have thought it advisable to carry him. But the fact remains that the prosecution has not been able to show that there was any blood at the place where P.W. 2 fell down which raises a reasonable inference that P.W. 2 may have been assaulted elsewhere and once that is so then the case regarding the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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