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Judgment
A.K. Roopanwal, J.—As criminal appeal No. 7670/07 and criminal revision No. 3969/07 arise out of the same judgment, hence, these are being decided by a common judgment.
Criminal appeal No. 7670/07 has been filed against the judgment dated 5.11.07/7.11.07 passed by the Sessions Judge, Rampur in S.T. No. 552/2000, State v. Daljeet Singh and Ors. whereby the appellant Manjeet Singh was found guilty and convicted for the offence punishable under Sections 148, 307/149 and 302/149, IPC on 7.11.07. He was sentenced to imprisonment for life for the offence punishable u/s 302/149, IPC and a fine of Rs. 10,000/- and in default of the payment of fine further R.I. for one year. For the offence punishable u/s 307/149, IPC he was sentenced to 10 years R.I. and a fine of Rs. 10,000/- and in default of payment of fine further R.I. for one year. He was also sentenced to 2 years R.I. for the offence punishable u/s 148, IPC. The court ordered that all the sentences of imprisonment shall run concurrently.
As vide judgment dated 5.11.07 accused Daljeet Singh, Satnam Singh, Amarjeet Singh, Lakhvinder Singh, Sadhu Singh, Hardev Singh, Sukhdev Singh alias Fauji Singh and Chitranjan Singh alias Bittal were acquitted of the charges u/s 147, 148, 307/149, 302/149, 506, hence, for setting aside this acquittal revision No. 3969/07 was filed by Bakhsheesh Singh, the complainant of the case.
The FIR of the case was lodged by Bakhsheesh Singh S/o Gurbachan Singh, R/o village Abbas Nagar, P.S. Swar, District Rampur on 12.6.2000 at 7.30 a.m. at P.S. Milak Khanam, District Rampur. It was alleged in the written report on the basis of which FIR was lodged that deceased Mohan Singh was the real brother of the informant Bakhsheesh Singh. Mohan Singh was living with his family at his Jhala (house) in village Andikhera, P.S. Milak Khanam, District Rampur. The father of the informant named Gurbachan Singh was living in Panjab and at the time of occurrence he had come from there. The informant went at the house of Mohan Singh to meet his father Gurbachan Singh on 11.6.2000. All took meals together and because it was night, he stayed with Mohan Singh. The informant Bakhsheesh Singh and his father Gurbachan Singh slept in the courtyard of the house and Mohan Singh along with his wife Manjeet Kaur, sons Tejpal Singh, Mehar Singh and daughter Jaspreet Kaur slept on the roof of the house. In the night between 11/12.6.2000 at about 2.00 a.m. the informant felt some noise. He saw in the light of electric bulb that accused Daljeet Singh, Satnam Singh, Amarjeet Singh all sons of Harcharan Singh, R/o village Raza Nagar, P.S. Swar, Manjeet Singh S/o Kartar Singh, R/o village Govindpura, P.S. Milak Khanam (present appellant), Lakhvinder Singh S/o Ravel Singh, Sukhdev Singh alias Fauji S/o Rurh Singh, Chitranjan Singh alias Bittal S/o Dalbag Singh, R/o village Talifarm, P.S. Bajpur, Sadhu Singh S/o Harnam Singh and Hardev Singh S/o Sadhu Singh residents of village Gadhiya, P.S. Bilaspur were present in the house. They were having lathies, iron rods, spears and other weapons. The informant became frightened and immediately ran away out of the house and hid himself in a nearby field. The aforesaid accused persons killed Mohan Singh and Gurbachan Singh and caused serious injuries to Manjeet Kaur, Tejpal Singh, Mehar Singh and Km. Jaspreet Kaur. It was alleged in the written report that prior to the incident the relatives of the aforesaid accused persons had committed murders of Satnam Singh and Kulwant Singh, the real nephews of the informant and they were having enmity with his family. They had also threatened to kill the informant and his family while leaving the place of occurrence.
On the written report of the informant Bakhsheesh Singh case was registered at crime No. 47/2000 at P.S. Milak Khanam.
The investigation of the case was handed over to S.O. Rajendra Singh of P.S. Tanda, District Rampur, however, in order to seal the dead bodies S.I. Mahipal Sharma along with S.O. Milak Khanam, Veerpal Singh reached at the spot and prepared the panchayatnamas of the dead bodies of deceased Mohan Singh and Gurbachan Singh along with relevant papers. The dead bodies were sealed and were sent for postmortem through constables Chatar Singh and Omkar Singh.
S.I. Rajendra Singh, S.O. Tanda received the information of the incident on R.T. Set and reached at P.S. Milak Khanam and started investigation. He copied out chik FIR and G.D. of the registration of the case in his case diary and recorded the statement of Intezar Ahmad, the scribe of these documents. He came at the spot at 12.15 p.m. where informant Bakhsheesh Singh met him whose statement was recorded and site plan of the place of the occurrence was prepared. He collected the clothes of the deceased persons and injured and prepared its memo. He also collected the blood stained and plain earth from the place of occurrence and prepared the memo. He then recorded the statement of S.I. M.P. Sharma who had prepared the panchyatnamas of the deceased persons. He also recorded the statements of the witnesses of memos prepared by him and inquired about the incident from the neighbours Charan Singh, Kashmir Singh, Guljar Singh, Jagir Singh, Mangal Singh and Ors.. He arrested the accused Amarjeet Singh on 14.7.2000. On 17.7.2000 accused Sadhu Singh and Satnam Singh were arrested. On 18.7.2000 accused Daljeet Singh and Hardev Singh were arrested whose statements were recorded. On 22.7.2000 accused Manjit Singh was arrested and his statement was recorded. Accused Lakhvinder Singh surrendered in the court on 24.8.2000 whose statement was recorded in District Jail on 1.9.2000. He confessed his guilt and wished to get the weapon of assault recovered. He was taken into police custody and on his pointing out a blood stained danda was recovered from Talifarm. It was 5.55 p.m. Its memo was prepared. The I.O. recorded the statement of Smt. Manjeet Kaur on 7.9.2000. She also filed an affidavit on 13.9.2000 testifying the prosecution story as disclosed in the written report. On 14.9.2000 the I.O. recorded the statements of Tejpal Singh, constable Chandar Singh, constable Omkar Singh, S.I. Rampal Singh, S.I. B.S. Manral, constable Hawan Singh and thereafter, submitted the charge sheet against the accused persons. He also sent the case property for chemical examination.
The case of all the accused except Sukhdev Singh and Chitranjan Singh was committed to the court of Sessions on 6.11.2000 by the then Additional Chief Judicial Magistrate, Rampur. In the Sessions Court the case against these accused was marked as S.T. No. 552/2000. The case of Sukhdev Singh and Chitranjan Singh was committed to the court of Sessions on 16.7.01 by the then Additional Chief Judicial Magistrate, Rampur which was registered at S.T. No. 352/01. Both the Sessions trial were tried together.
Accused Daljeet Singh and Ors. in S.T. No. 552/2000 were charged for the offences punishable under Sections 147, 148, 302/149, 307/149 and 506(2), IPC. Accused Sukhdev Singh and Chitranjan Singh were charged for the offences punishable under Sections 147, 148, 302/149, 307/149 and 506(2), IPC. All the accused persons denied from the charges and claimed to be tried.
The prosecution examined PW-1 Bakhsheesh Singh, the informant of the case and PW-2 Tejpal Singh as the so called eye witnesses of the alleged occurrence. PW-1 Bakhsheesh Singh in his statement in chief supported the prosecution version as disclosed in the written report given by him at the police station and proved the same as Ext.Ka-1. He also stated that the names of Sukhdev Singh and Chitranjan Singh were mentioned in the written report at the initiation of the persons assembled at the spot. PW-2 Tejpal Singh supported the version of the prosecution in his examination in chief.
Besides the above so called eye witnesses PW-3 S.I. Mahipal Sharma, PW-4 Dr. A.K. Vaishya, PW-5 Dr. Satish Chandra, PW-6 constable Omkar Singh, PW-7 S.I. Rajendra Singh, PW-8 constable Intezar Ahmad were also produced by the prosecution. Mr. Prem Lal, Radio Inspector was examined as CW-1.
PW-3 S.I. Mahipal Sharma was the person who prepared the panchayatnamas of the dead bodies along with connected papers. He proved these documents.
PW-4 Dr. A.K. Vaishya is the doctor, who conducted the postmortem of the dead bodies of Gurbachan Singh and Mohan Singh on 12.6.2000 at Mortuary Rampur. He stated that the death of Gurbachan Singh had taken place about 3/4 day back. Rigor Mortis was present on the lower extremities of the body and had passed off from the upper extremities. The following ante mortem injuries were found on the dead body of Gurbachan Singh:
Multiple lacerated wound of various size & direction over whole face including forehead, few were brain deep & others were bone deep. Underneath frontal bone, right temporal bone, maxillary bone, nasal bone and left maxillary bone were fractured in pieces. Face was distorted and disfigured.
A lacerated wound 4 cm. x 1 cm. x bone deep over left side 2 cm. in front of left ear.
A lacerated wound 5 cm. x 2 cm. x bone deep over the left side of top of head 10 cm. above the left ear. Parietal bone fractured.
Two lacerated wound 4 cm. x 1 cm. over the top of right shoulder.
Two lacerated wound 4 cm. x 1 cm. muscle deep over left ear.
In the internal examination frontal and temporal bones of both sides of head, parietal bone, both maxilla, nasal bone, occipital bone and right mandible bone were fractured. Membranes of the brain were lacerated and clotted blood was present. The base of the skull was fractured on the front and in the middle. The respiratory canal was having blood. The stomach was having about 150 gms of semi-digested food. All the internal organs were congested. He opined that the death had taken place due to coma as a result of brain injuries.
He also stated that on the same day he conducted the postmortem of the dead body of Mohan Singh at 7.30 p.m. at mortuary Rampur. The death had taken place about 3/4 day back. Rigor mortis was present in the lower extremities and had passed off from the upper extremities of the body. Clotted blood was present in the left nostril and the mouth. The following ante mortem injuries were found on the dead body of Mohan Singh:
Incised wound 3 cm. x 0.8 cm. bone deep over the right side of face 2 cm. away from right ear, underneath bone was fractured.
Incised wound over right pinna which was divided into 2 pieces. The extension of the wound was 2 cm. behind the pinna.
A traumatic swelling over the left side of forehead just above the left eyebrow.
In the internal examination frontal and parietal bones were found fractured in several lines and these fractures were continuing up to the right temporal region. The membranes of the brain were lacerated below the bones. A big clot of blood was present over the brain and under injury No. 3. The base of the skull was fractured. The stomach was having 300 ml. of semi-digested food. In the opinion of doctor the death had taken place due to coma as a result of head injuries.
He proved the postmortem reports and also stated that the death of the deceased persons was possible at 2.00 a.m. on 12.6.2000 with lathies, dandas, iron rods and spears.
PW-5 Dr. Satish Chandra is the doctor who examined the injured persons. On 12.6.2000 he examined Mehar Singh S/o Mohan Singh, aged about 9 years at District Hospital Rampur and found the following injuries on his person.
Lacerated wound 4 cm. x 2 cm. x bone deep over right side of forehead 2 cm. above eyebrow.
Contusion 8 cm. x 3 cm. present around and over the right eye.
Lacerated wound 3 cm. x 1 cm. present over left parietal part of skull 5 cm. above at 10 o'' clock position of left ear.
In the opinion of doctor all the injuries were inflicted with some hard and blunt object. These were fresh at the time of examination and were kept under observation.
On the same day he examined the injuries of Tejpal Singh S/o Mohan Singh at 9.15 a.m. and found following injuries on his person.
Incised wound present on right side of skull 6 cm. away from ear at 10 o'' clock position, size 3 cm. x 1 cm. x bone exposed.
Incised wound 4 cm. x 2 cm. x muscle deep, 3 cm. behind injury No. 1.
Incised wound present on occipital region 3 cm. x 1.5 cm. x bone exposed.
In the opinion of doctor all the injuries were inflicted with some sharp edged weapon. These were fresh at the time of examination and were kept under observation.
On the same day he examined injuries of the daughter of Mohan Singh at 9.25 a.m. and found following injuries on her person.
Incised wound present over parietal side of skull size 4 cm. x 1 cm. x bone exposed.
Incised wound present over right side forehead on medial end of right eye brow size 4 cm. x 1 cm. x bone exposed.
Incised wound present over lateral side of nose right side size 4 cm. x 1 cm. x muscle deep.
Lacerated wound present over right side chin size 3.5 cm. x 1 cm. x bone exposed. Deformity present.
In the opinion of doctor all the injuries except injury No. 4 were inflicted with some sharp edged weapon and injury No. 4 was inflicted with some blunt object. All the injuries were kept under observation and X-ray was advised.
On the same day he examined the injuries of the wife of Mohan Singh and found following injuries on her person.
Incised wound present over upper part of left side of forehead 6 cm. above from medial end of left eyebrow size 5 cm. x 2 cm. x bone exposed.
Incised wound present over lateral end of left eyebrow size 2.5 cm. x 1 cm. x muscle deep.
Incised wound present over anterior side of left ear size 2 cm. x 0.5 cm. x bone exposed.
Incised wound present over medial side of left forearm in lower 1/3rd part.
In the opinion of the doctor all the injuries were possible with sharp edged weapon and were fresh at the time of examination and were kept under observation. X-ray was advised.
In the opinion of doctor the injuries of all the aforesaid injured persons could have come at the time of incident i.e. on 12.6.2000 at 2.00 a.m. He proved the injury reports of these persons.
PW-6 Constable Omkar Singh is the person who had taken the dead bodies in sealed condition for postmortem.
PW-7 S.I. Rajendra Singh is the Investigating Officer of the case and the actions taken by him have been stated above.
PW-8 Constable Intezar Ahmad is the scribe of the FIR and G.D. of the registration of the case. He has proved these documents.
CW-1 Radio Inspector Prem Lal has stated that he is posted as Radio Inspector, Rampur, U.P. in Radio Department since 27.6.2000. He further stated that regarding the incident radio message was transmitted from P.S. Milak Khanam at 8.30 a.m. and was recorded in District Control Room of Radio Station, Rampur at 8.40 a.m.
The statements of the accused persons were recorded u/s 313, Cr.P.C. in which they denied from the prosecution case and stated that they have falsely been implicated in the case.
They examined DW-1 Ratan Lal, Patrol Man, electricity station Swar, District Rampur in their defence. This witness has stated that the electric supply to village Andikhera i.e. the village of the incident was stopped at 7.30 p.m. on 11.6.2000 from Raja Nagar Feeder and it was restored on the next day i.e. 12.6.2000 at 7.50 a.m. He specifically stated that in the night between 11/12.6.2000 there was no electric supply in village Andikhera.
The trial court examined the evidence on the record and found that the FIR of the present case was made ante time and is a suspicious document. It also held that the informant Bakhsheesh Singh is not a reliable witness and his evidence does not inspire confidence and it is not credible. However, the trial court found that PW-2 Tejpal Singh was a reliable and trustworthy witness.
As PW-2 Tejpal Singh had not deposed against Daljeet Singh, Satnam Singh, Amarjeet Singh, Lakhvinder Singh, Sadhu Singh, Hardev Singh, Sukhdev Singh and Chitranjan Singh and only PW-1 Bakhsheesh Singh had stated about their participation in the incident, hence, the trial court acquitted these persons from the charges framed against them. Manjit Singh was found guilty for the offence with which he was charged as against him there was reliable evidence of PW-2 Tejpal Singh. After finding him guilty he was sentenced in the manner hereinbefore stated.
As the complainant was not satisfied with the acquittal of Daljeet Singh, Satnam Singh, Amarjeet Singh, Lakhvinder Singh, Sadhu Singh, Hardev Singh, Sukhdev Singh and Chitranjan Singh, he filed revision No. 3969/07.
Manjit Singh was not happy with the judgment of conviction and he filed appeal No. 7670/07.
Heard Mr. Dileep Kumar assisted by Mr. Rajeev Gupta, learned Counsel for the appellant Manjeet Singh in criminal appeal No. 7670/07 and for opposite party Nos. 2 to 9 in criminal revision No. 3969/07, Mr. Shashi Kumar, learned AGA for the State in both the criminal appeal and criminal revision, Mr. K.D. Tiwari for the complainant in the appeal and for the revisionists in the connected revision and perused the record.
It has been argued by Mr. Dileep Kumar that the trial court was not justified in placing reliance on the statement of PW-2 Tejpal Singh and the finding has wrongly been recorded against the appellant Manjeet Singh on the sole testimony of this witness.
To the above, it was argued by Mr. Shashi Kumar and Mr. Tiwari that Tejpal Singh was completely a reliable witness and was correctly believed by the trial court, therefore, the conviction against Manjeet Singh is liable to be approved. It was further argued by them that the trial court had not properly appreciated the evidence of PW-1 Bakhsheesh Singh and had also wrongly held that the FIR of the present case was not a reliable document. They also argued that the trial court wrongly ignored the statement recorded u/s 161, Cr.P.C. of Smt. Manjit Kaur and her affidavit. Thus, the findings in this regard are liable to be reversed and the acquittal of Daljeet Singh, Satnam Singh, Amarjeet Singh, Lakhvinder Singh, Sadhu Singh, Hardev Singh, Sukhdev Singh and Chitranjan Singh is liable to be set aside and the matter is liable to be remanded to the trial court for further action in the matter.
In view of the rival contentions, we would first like to see as to whether the finding of the trial court regarding the FIR is a correct one or not.
It is the evidence on the record that all the injured persons were taken to the district hospital at Rampur by constable 646 Major Singh and no letter for medical examination (chitthi Majrubi) was with this constable. This clearly shows that by the time the injured persons were taken to the hospital no FIR was lodged, however, the police had come into action otherwise ''Chitthi Majrubi'' would have been sent with the injured persons. It is also on the record that the investigation of the case was entrusted to S.O. Rajendra Singh of P.S. Tanda. Rajendra Singh, who was examined as PW-7, has stated that in the G.D. dated 12.6.2000 of P.S. Tanda it was noted that he proceeded as per orders of the Higher Officers at 9.15 a.m. If the FIR would have been written by 7.30 a.m., there could be no occasion at all to ask the I.O. at 9.15 a.m. to proceed to P.S. Milak Khanam. This witness has also stated that he was asked to reach P.S. Milak Khanam for law and order duty and till that time there was no order for conducting any investigation. This also shows that by 9.15 a.m. he was not asked to conduct the investigation. If the FIR would have been written at 7.30 a.m., then certainly this police officer would have been asked to proceed for investigation and this thing would have been mentioned in the G.D. of Rawangi of P.S. Tanda. There is one other material evidence on the record which may cast doubt upon the time of lodging of the FIR at 7.30 a.m. The accused persons filed certified copy of the statement of Amarjeet Singh who was PW-2 in S.T. No. 383/01, State v. Kripal Singh and Ors., u/s 302, IPC, P.S. Milak Khanam. In this case Amarjeet Singh, the real son of the informant had stated that the FIR of the present case was lodged at 2.30 p.m. This statement was relied upon by the trial court. As this judgment in that Sessions trial was relied upon by the prosecution in the present case, hence, the trial court was perfectly justified in placing reliance on the statement of Amarjeet Singh by which the time of lodging of the FIR of the present case i.e. 7.30 a.m. becomes a suspicious fact.
The time of lodging the FIR lodged at 7.30 a.m. is also under clouds in view of the fact that the wireless message about the incident was sent to the Higher Police Officers in which it was said that the information of the incident was given at P.S. Milak Khanam by Baldev Singh on 12.6.2000 at 7.45 am. in which it was said that Mohan Singh and Gurbachan singh were murdered and Mohan Singh''s wife, his son Tejpal Singh and two boys and one girl were injured. On this information S.O. proceeded at the spot. This wireless message indicates that the information of the incident at the police station first of all, was given by Baldev Singh at 7.45 a.m. on 12.6.2000 and not by the informant at 7.30 a.m. and on the information of Baldev Singh the police reached at the spot and sent the injured to the hospital for treatment. This wireless message was relied upon by the trial court and there appears no illegality in the finding recorded by the trial court in this regard.
Thus, from the above it is clear that the prosecution was not able to prove it beyond all the reasonable doubts that the FIR was written at the police station at 7.30 a.m. and therefore, the finding of the trial court that the time of recording the FIR is definitely clouded and entry of general diary about the time of the registration of the case is not reliable appears to be a correct finding and there is no reason at all to defer from this finding.
Now, we turn to the statement of PW-1 Bakhsheesh Singh, the maker of the FIR. In the FIR it was written by him that his father Gurbachan Singh had come at the house of his brother Mohan Singh in village Andikhera and to meet him he had gone to the house of Mohan Singh on 11.6.2000. However, in his examination in chief he stated that he had gone to the house of Mohan Singh along with his father. This variation in the statement makes it doubtful as to whether this witness had gone to the house of Mohan Singh or not. It was said by this witness that his father were four brothers namely Jaswant Singh, Gurbachan Singh (father of this witness), Chatar Singh and Kripal Singh. Jaswant Singh had two sons namely Ajit Singh and Gurnam Singh. This witness has two brothers. One, he himself and the other was deceased Mohan Singh. Chatar Singh had two sons namely Sukhvindar Singh and Angrej Singh. Kripal Singh had two sons namely Kuldeep Singh and Suchcha Singh. Before the occurrence of the present case Satnam Singh S/o Ajit Singh and Kulwant Singh S/o Gurnam Singh were murdered. In this murder case the son of this witness Amarjeet singh and brother Mohan Singh were the witnesses. In that case Kripal Singh, uncle of this witness was an accused. Samdhi of Kripal Singh namely Harcharan Singh was also an accused. In the present case, Daljeet Singh, Satnam Singh and Amarjeet Singh sons of Harcharan Singh are accused. Father-in-law of Daljeet Singh namely Sadhu Singh and brother-in-law of Daljeet Singh namely Hardev Singh are also accused in the present case. This statement shows that the witness has enmity to implicate the accused persons. In view of this statement it also appears that in case this witness would have been present at the spot, he would not have been spared by his enemies i.e. the accused of the present case. The fact that this witness was allowed to leave the place of occurrence by the accused persons and they did not even chase him at the time of leaving the house of his brother Mohan singh indicates that this witness is telling lie in the background of previous enmity. In all probabilities this witness would have also been attacked by the accused persons and would not have been spared. Here, it is worthwhile to mention that the accused at the time of alleged incident are said to have spoken that Bakhsheesh Singh be not spared.
The statement of this witness also shows that in the circumstances of the case he could not be able to identify the accused persons. It is said that the occurrence took place at 2.00 a.m. It is not the case that at that time this witness was awaking. He is said to have awoken hearing the noise of the accused persons. If this would have been the position, first of all, he would have been attacked and in such situation, he would not have been able to identity any of the accused persons more particularly when there is evidence on the file that at the time of the alleged incident there was no light at the place of occurrence though it is said that a bulb was lightening at the spot.
The presence of this witness also appears to be doubtful in view of one of the most important circumstances. He says that Sadhu Singh participated in the incident. This man is an old one and was aged about 86 years at the time of alleged incident. When there were young persons in the family of the accused, there could be no justification for Sadhu Singh to accompany the accused persons and thus, the statement of this witness that Sadhu Singh was also present at the spot makes it a doubtful one. The statement of this witness is also liable to be disbelieved as none of the accused used fire arms while all were the holders of licensed arms as per the statement of this witness. This witness admittedly nominated two persons on the saying of the villagers and this shows that this witness could have nominated others on the saying of the villagers. The statement of this witness to the effect that he had identified the accused persons is not believable as the topography of the house of Mohan Singh shows that from the place where this witness says that he had hidden himself the place of occurrence was not at all visible, neither the roof could be visible as there was boundary wall on the roof and the courtyard could not be visible because boundary wall was intervening between this witness and the courtyard.
The statement of this witness is also liable to be disbelieved on the ground that this witness did not raise hue and cry immediately when the accused had left the place of occurrence. He raised hue and cry after 3-4 hours of the incident which is most unnatural conduct and speaks volumes about the absence of this witness at the time of alleged occurrence. If he would have been present at the time of occurrence, definitely, he would have raised hue and cry when the accused had left the place of occurrence. It would have been very natural conduct in order to save the persons who were mercilessly beaten by the culprits. Thus, we feel that in view of the above discussed facts and circumstances, the presence of this witness at the time of alleged occurrence is highly doubtful and this possibility cannot be ruled out that this witness nominated the accused persons after due deliberations as they were inimical to him. In this regard, the finding recorded by the trial court cannot be said to be erroneous in any manner and is liable to be approved.
We do approve the finding of the trial court regarding this witness in which it was held that this witness was not a reliable witness and his presence at the time of alleged incident is doubtful.
The prosecution tried to prove the statement of Smt. Manjit Kaur recorded u/s 161, Cr.P.C. as a piece of dying declaration. The prosecution also tried to prove the affidavit alleged to have been given by this lady prior to the incident implicating the accused persons.
The trial court did not rely upon either on the statement recorded u/s 161, Cr.P.C. or on the affidavit. The statement recorded u/s 161, Cr.P.C. was not found admissible u/s 32 of the Indian Evidence Act as it was not made as to the cause of death or as to any of the circumstances of the transaction which resulted into the death of the lady. Admittedly, Manjit Kaur had not died due to the injuries sustained by her in the occurrence but she died after a long time and had committed suicide. Thus, the trial court was justified in not placing reliance on the statement of Manjit Kaur u/s 161, Cr.P.C. as a piece of dying declaration and it was correctly found inadmissible u/s 162, Cr.P.C. So far as the affidavit was concerned, the trial court was of the opinion that it was also not admissible in evidence. We feel that this finding is correct. As the affidavit could not be said to be dying declaration u/s 32 of the Indian Evidence act on the analogy of the discussion made above, hence, it was nothing but a previous statement and because no opportunity of cross examination was available to the accused persons against this affidavit, hence, the affidavit was not liable to be read in evidence against them.
The finding of the trial court regarding the statement of PW-1, who was the sole evidence against the accused persons except Manjit Singh, cannot be said to be unreasonable or perverse. It cannot also be said that by recording the finding about this witness the trial court had committed any serious error of law. We are also of the opinion that the finding of the trial court regarding the FIR and the statement of Smt. Manjit Kaur and her affidavit can also not be said to be unreasonable or perverse.
Mr. Tiwari has also not been able to show that the trial court had recorded its finding in ignorance of relevant material on the record and by taking into consideration of evidence which is not admissible and therefore, there can be no scope of interfering with the acquittal of accused Daljeet Singh, Satnam Singh, Amarjeet Singh, Lakhvinder Singh, Sadhu Singh, Hardev Singh, Sukhdev Singh alias Fauji Singh and Chitranjan Singh alias Bittal recorded by the trial court. In this regard we support our opinion by the Judgments reported in Shingara Singh Vs. State of Haryana and Another, and Chaganti Kotaiah and Others Vs. Gogineni Venkateshwara Rao and Another, in which the above proposition of law has been propounded by the Apex Court.
Now, we would like to discuss the evidence of PW-2 Tejpal Singh on whose sole statement the appellant Manjit singh has been found guilty by the trial court. The statement of this witness shows that at the time of alleged occurrence he was sleeping on the roof of his house along with his mother, father, brother and sister. Six accused including the appellant Manjit Singh armed with spears, iron rods and dandas came there. They all beat him, his mother, father, brothers and sister. Later on, he was thrown from the roof by the appellant. This witness at the time of his statement before the court was 14 years of age, meaning thereby, that he was about 11 years of age at the time of alleged incident. He has stated that after the death of his mother and father he is living with the informant Bakhsheesh Singh, who is his uncle and he obeys him. His younger brother Mehar Singh is also living with Bakhsheesh Singh. He admitted that he does not do anything against the wishes of Bakhsheesh Singh. In view of such statement this possibility cannot be ruled out that this witness is in the full grip of his uncle Bakhsheesh Singh and could well be tutored by him. This witness says that at the time of alleged occurrence a bulb was lightening at the spot. This fact has been belied by the defence witness who was the employee in the Electricity Department and was responsible to maintain the record of supply of electricity to the village of the incident.
From the facts of the case it appears that six persons came on the roof and immediately started beating. In such situation, it does not appear possible that anybody would be in a position to identify the assailants more particularly when there was no light to recognise them.
This witness says that he cannot say as to whether the accused persons were having beard or not and in view of such statement, it can safely be deduced that he had not recognised any of the accused what to say of the appellant Manjeet Singh.
This witness says that he knew Manjit Singh from before the occurrence as he used to come to his house. It is apparent from the record that Manjit Singh is the resident of village Govindpura and this witness is the resident of Abbas Nagar. It has come in the statement of PW-1 Bakhsheesh Singh that the distance between these two villages is about 5-6 kms. Seeing this distance it does not appear probable that the appellant would be visiting the house of this witness frequently and in view of such fact, it does not appear believable that this witness would be coming in touch with the appellant regularly so as to give him a chance to recognise him at any point of time, even in the night. Thus, we are of the opinion, that the statement of this witness that he had identified Manjit Singh is not a believable one and this possibility cannot be ruled out that he had deposed before the court under the pressure of his uncle Baksheesh Singh.
Here, we would also like to say that at the time of recording the statement of this witness Bakhsheesh Singh was present in the court and this could also exert pressure upon the witness to depose as was wished by Bakhsheesh Singh. One more thing is also worthwhile to mention regarding the statement of this witness. The statement of this witness was recorded by the I.O. after 4 months of the occurrence. During this period there could be a strong possibility of tutoring this witness by the informant and thus, in this circumstance, it would not be safe to place reliance on this witness. In our opinion, the trial court cannot be said to be justified in placing reliance upon the statement of PW-2 Tejpal Singh and convicting the appellant on his sole statement.
In view of the above, we find that the case against Manjit Singh has also not been proved by the prosecution beyond all the reasonable doubts and he is also entitled to be acquitted from the charges under Sections 148, 307/149 and 302/149, IPC. Consequently, the appeal is liable to be allowed.
So far as the revision is concerned, in the light of the aforesaid discussion, the revision is liable to be dismissed.
Accordingly, appeal is allowed. Conviction and sentence recorded against the appellant Manjeet Singh vide judgment dated 7.11.07 is, hereby, set aside. The appellant Manjeet Singh is acquitted of the charges under Sections 148, 307/149 and 302/149, IPC. He is in jail and shall be set at liberty forthwith, if not wanted in any other case. This order be communicated to the concerned CJM for immediate compliance.
The revision filed by the complainant Bakhsheesh Singh is, hereby, dismissed and the acquittal of accused Daljeet Singh, Satnam Singh, Amarjeet Singh, Lakhvinder Singh, Sadhu Singh, Hardev Singh, Sukhdev Singh alias Fauji Singh and Chitranjan Singh alias Bittal is, hereby, maintained.