Raja Ram vs State of Haryana

H.S. Bedi, J.

This appeal arises out of the following facts :

On 20th May, 1992, Hanuman (the first informant) and Ram Niwas (since deceased), started from Railway Station Hisar at 7 p.m. after loading coal in a truck belonging to Ram Niwas for carrying it to Dabwali, Uggar Sain P.W. 7 was the truck driver. They reached near petrol pump of village Panjuana on the national highway between Sirsa and Dabwali at about 11 p.m. and after parking the truck on the road side had their dinner at the local restaurant. Hanuman thereafter went to sleep in the truck whereas Ram Niwas and Uggar Sain P.W. 7 lay down to sleep on a cot lying near the truck. On hearing the sound of a shot having been fired, Hanuman and Uggar Sain woke up and found the two accused (Subhash armed with a double barrel 12 bore gun and Raja Ram unarmed, both sons of Kheru Ram Bishnoi) standing there. Thereupon Subhash fired one shot at Ram Niwas from a close range. Uggar Sain fled from the spot and hid in the restaurant, while the two accused carrying their gun got in their jeep bearing No. HR 20 537 (later on corrected as HR 20 0547) which was parked close by and drove off toward Sirsa. Hanuman then got down from the truck and saw that Ram Niwas had received injuries on the left side of the forehead and the chest and that he had died meanwhile. Hanuman then made his way to the Police Station Baragudha and made a report to Sub Inspector Het Ram, P.W. 10 who recorded the same at 2.15 a.m. on 21st May, 1992; the special report being delivered at Sirsa at 9.15 a.m. Sub Inspector Het Ram accompanied by other policemen then went to the place of the incident and prepared the inquest proceedings and also recorded the statement Exhibit PL of Uggar Sain. The two pellets found on the cot near the dead body as also a blood stained Gadda, strings and a blanket were taken into possession. The accused were arrested on 28th May, 1992, by Sub Inspector Raghbir Singh P.W. 8 and the Jeep in which they had absconded, the gun and two live cartridges were also taken into possession. Raja Ram accused also produced Exhibit P1, the gun licence, whereas Kheru Ram son of Subhash, produced the registration certificate, Exhibit P2, pertaining to the Jeep showing that it had been transferred to Subhash accused on 9.10.1991. On the completion of the investigation, the accused were duly arraigned and, whereas Subhash accused was charged substantively for the offence punishable under Section 302 of the Indian Penal Code. Raja Ram accused was sought to be roped in with the aid of section 34 thereof. Subhash accused was also challaned for an offence punishable under section 27 of the Arms Act. As the accused pleaded not guilty to the charge, they were brought to trial.

In order to prove its case, the prosecution examined, inter alia, Sewa Ram P.W. 1 who proved the licence Exhibit P1 pertaining to the D.B.B.L. gun allegedly used in the attack; Surinder Kumar P.W. 2 a clerk from the S.D.M. Office, Hisar, who proved the registration certificate of the Jeep in question and deposed that on the day of the murder it stood in the name of Subhash accused; Sant Lal, Ahlmad, P.W.3 who proved the file pertaining to the divorce that had been granted to Ram Niwas against his wife Dholi, a cousin of the accused and the alleged motive for the murder; Head Constable Bhagwan Dass P.W. 4 who stated that he had been posted at the Truck Union Barrier at the Dabwali Road, Sirsa, on 20th May, 1992, when a Jeep bearing registration No. HR 20 0547 had passed by at 11.50 p.m. and the two accused were in the Jeep at that time; P.W. 7 Uggar Sain who made a complete volte face with respect to the prosecution case and was declared hostile as he deposed that the murder had been committed by five Sikh boys and that Hanuman had not even been present at the spot; Sub Inspector Raghbir Singh P.W. 8 who had arrested the accused, taken the gun, the two live cartridges and the jeep into possession and had also seized the documents pertaining to these two items on the next day; Dr. Narinder Chaudhary P.W. 9 who had conducted the post mortem examination on the dead body and had noticed three gun shot injuries two of entry and one of exit; Sub Inspector Het Ram P.W. 10 the investigating officer and Rameshwar Dass P.W. 11 who was witness of the arrest and the recovery of the jeep and the cartridges on 28th May, 1992.

The prosecution case was then put to the accused and they denied their involvement in the incident. They however admitted that Jeep No. HR 20 0547 belonged to Subhash accused and that Dholi, the exwife of Ram Niwas, was their collateral being their maternal uncle''s daughter. They further stated that they had been arrested from their house and the gun had, thereafter been seized from them. In defence, they examined inter alia, Ghanshyam Dass D.W. 2 from the Telegraph Office who proved the telegrams Exhibits DB to DE given by Makhan Lal to various authorities in Haryana complaining that the Baragudha Police had seized the gun of his brother Ram Sarup and had arrested Raja Ram and Subhash accused on 24th May, 1992, and that he apprehended that they would be involved in a false case; Shri Rattan Kumar Aggarwal, Advocate, was produced as D.W. 3 and he proved the affidavit Exhibit DK of Hanuman, the first informant, in which he had deposed that he had been forced to make a false case against the accused and Makhan D.W. 4 who stated that the police had brought both the accused to his house on 24th May, 1992 and had taken away the licence and the gun from that place; Shri Kuldip Singh Budhar, Advocate, D.W. 5 who stated that he had identified Hanuman when he had sworn the affidavit Exhibit DK and that as per this affidavit, the deponent had stated that he had not been present at the spot and had not witnessed the occurrence and that, in fact, it was Uggar Sain, the driver of the truck, who had come to Ram Niwas''s house and had informed his family about his murder by unknown persons.

The trial Court noted that Hanuman, the first informant, had died before he could be examined as a prosecution witness and therefore the matter would have to be examined in that background. The Court accordingly noted that the FIR had been recorded at the instance of Hanuman and the defence had not even suggested that he had not signed the same. The court ruled that the FIR recorded by Hanuman could not be held to be a dying declaration as per the provisions of Section 32(1) of the Indian Evidence Act (hereinafter referred to as the `Act'') as it did not relate to the cause of his own death but the contents of the FIR were admissible under Section 6 read with illustration (a) thereof, as it was a relevant fact in terms of that section. In coming to this conclusion, the Court relied upon a Division Bench judgment of Andhra Pradesh High Court reported in Bandela Nagaraju and others v. State of Andhra Pradesh, 1984(2) Recent Criminal Reports 114 . The Judgment cited by the defence counsel that the FIR was not a substantive piece of evidence and could be used only to corroborate or to contradict the maker were distinguished by stating that the maker of the FIR in that case was not dead. The Court accordingly came to the conclusion that as the FIR was admissible in evidence, the contents could, therefore, be proved and the fact that Uggar Sain, the other eyewitness, did not support the prosecution case was of little consequence. The Court also found that the motive stood proved and the fact that Head Constable Bhagwan Dass P.W. 4 had noticed the Jeep passing by the check post at 11.50 p.m. on the fateful night i.e. shortly after the incident, was a clinching circumstance against the accused. The defence version which had been projected by the witnesses was rejected as being unworthy of credence. The Court accordingly convicted and sentenced the two accused as under :

Raja Ram to undergo life imprisonment and to the payment of fine of Rs. 500/ and in default of payment thereof, to further undergo R.I. for three months for offences under Section 302 read with section 34 of the Indian Penal Code;

Subhash to undergo life imprisonment and to the payment of fine of Rs. 1,000/ and in default of payment thereof, to further undergo RI for six months for offences under Section 302 IPC and to also undergo imprisonment for two years under Section 27 of the Arms Act. Both the substantive sentences to run concurrently.

Hence this appeal at the instance of the accused.

Mr. S.C. Mohunta, the learned Senior Advocate appearing in support of the appeal, has argued that the finding of the trial Court that the FIR was admissible in evidence despite the fact that its maker Hannuman had died and, therefore, could not be examined in Court was erroneous. He had pointed out that the FIR recorded under Section 154 of the Code of Criminal Procedure could not be used as a substantive or a primary piece of evidence and could, at best, be used only to corroborate or to contradict the evidence under Sections 145 and 157 of the Act and for no other purpose. In support of this assertion, Mr. Mohunta has relied on Dharma Ram Bhagare v. State of Maharashtra, AIR 1973 S.C. 476 and Nanku Singh v. State of Bihar, AIR 1973 SC 491. He has further urged that unless the first informant was examined, the information given by him which constituted the first information report could not be put in evidence, as held by the Privy Council in Emperor v. Khwaja Nazir Ahmed, AIR 1945 Privy Council 18. He has accordingly argued that the judgments cited by the learned Counsel in the trial Court in Bandela Nagaraju''s case (supra) did not lay down the correct law.

As against this, Mr. Sanghi, the learned Deputy Advocate General, appearing for the respondentState has relied on the judgments cited by the trial Court and has urged that a look at illustration (a) to section 6 of the Evidence Act would make it clear that the FIR contained details which were relevant to the facts in issue and, as such, were admissible in evidence.

We have considered the arguments of the learned Counsel in this light and find that the arguments advanced by Mr. Mohunta have merit. This case to our mind is one, where personal conviction as to the guilt of the accused must not be allowed to cloud our judgment. We reproduce Section 6 and illustration (a) of the Evidence Act as under :

"6. RELEVANCY OF FACTS FORMING PART OF SAME TRANSACTION.

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and place.

ILLUSTRATION (a) :

A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."

It will be noticed that this section deals with the question of relevancy of facts but has nothing to say as to how the fact has to be proved. To our mind, Section 32(1) of the Act is the solitary exception where a statement made by a dead person can be taken into evidence and that is only in the case of a dying declaration. The Division Bench of the Andhra Pradesh High Court in Bandela Nagaraju''s case (supra) applied illustration (a) under Section 6 thereof to a wholly different set of facts in arriving at the conclusion that it did. It is also significant that Hanuman had disowned his statement recorded as the FIR before his death in the affidavit Exhibit DK given by him. The judgments cited by Mr. Mohunta fully apply to the facts of this case as they postulate that an FIR is not admissible in evidence and can be used only for the purpose of corroborating or contradicting a witness or the maker thereof and for no other purpose and this evidence too can be read only if the first informant has been examined in Court. To our mind, therefore, the FIR in question was not admissible in evidence.

It has then been argued by Mr. Mohunta that even assuming that the FIR was admissible in evidence the fact still remained that Uggar Sain P.W. 7, the other eyewitness, had not supported the prosecution and in that eventuality if the FIR was to be relied upon so as to form the sole basis of conviction it had to be held that it was entirely true and spontaneous. He has then pointed out that the incident had taken place at about 11.40 p.m. on 20th May, 1992, whereas the FIR had been lodged at Police Station Baragudha at 2.15 a.m. on 21st May, 1992, at a distance of 10 miles from the place of the incident whereas the special report had been delivered to the Ilaqa Magistrate, Sirsa, at 9.15 a.m., 10/12 KM away and this clearly showed that the FIR had not been registered at the time suggested. We have considered this argument of the learned Counsel and find that there appears to be an unexplained delay in the delivery of the special report which clearly makes out that the FIR was not lodged at 2.15 p.m. on 21st May, 1992, but could have been lodged much later. It is significant that the police officer who had carried the special report to Sirsa to be delivered to the Ilaqa Magistrate was not even examined as a prosecution witness. There is, therefore, no explanation at all as to why the special report was delivered some 7 hours after recording of the first information report.

It has then been argued by Mr. Mohunta that the medical evidence was also at variance with the ocular testimony. In this connection he has referred us to the evidence of Dr. Narinder Chaudhary P.W. 9 who had conducted the post mortem on the dead body and had found three injuries on it; injury Nos. 1 and 3 being entry wounds whereas injury No. 2 was the exit wound of injury No. 1. We reproduce here the injuries for reference.

Wound of entry. There was oval shape lacerated wound with inverted margins of 3.5. cm x 2.5 cm over the left temporal region; surrounded area of 60 cm x 5 cm were scorched burnt and tattooing marks were present. Wound was having gun powder.

Wound of exit. Lacerated wound of 14 cm x 8 cm with reverted margins over the right front of parietal region. A part of right front parietal bone was absent. Badly lacerated brain matter was coming out from the skull.

There was lacerated wound of oval shape measuring 14 cm x 8 cm over the left cardiac region. Margns were inverted and having tattooing marks. Corresponding parts of shirt was burnt. On dissection, 5th intercostal vertebra was fractured. Wound was making a track which was going medically posteriorly and downward along piercingly, heart vessel right and left lungs in the middle zone along with the plural cavity and middle of the liver. Multiple pellets were embedded in the right hypochondriac region. Due to multiple pellets there were multiple holes in the corresponding viscera."

Coming to the injuries, Mr. Mohunta pointed out that from the size and dimension of injury Nos. 1 and 3 it appeared that both had been caused from almost the same distance but whereas injury No. 1 appeared to have been caused with a rifle, injury No. 3 had been admittedly caused by a shot gun and this too contradicted the ocular version in which only a shot gun is stated to have been used. We have considered this argument of the learned Counsel and find that it merits acceptance. It will be noticed that injury Nos. 1 and 3 were surrounded by scorching and burning in the surrounding area indicating firing from an identical distance but the dimension of the entry wounds indicate that whereas a rifle had been used in causing injury No. 1, a shot gun had been used to cause injury No. 3, it being a case of enmasse entry of the pellets. Moreover, from the seat of the injuries, one on the temporal and the other on the cardiac region, it is apparent that they could not have been caused by only one shot. We are, therefore, of the opinion that for this reason as well, the ocular version cannot be accepted.

It has then been argued by Mr. Sanghi that if the FIR was held to be admissible in evidence, a strong circumstance corroborating its correctness was the evidence of Head Constable Bhagwan Dass, P.W. 4, who deposed that Jeep No. HR 20 0547 had passed by the truck union barrier at 11.50 p.m. and both the accused were present in the Jeep. We have, however, already held that the FIR could not be read in evidence, but, even assuming that it could be, we find that a reading of the statement made by the Head Constable does not support Mr. Sanghi''s assertion. Although in the examinationinchief, Head Constable Bhagwan Dass did state that the Jeep had gone by at 11.50 p.m. but in crossexamination, he admitted that the time of the passing of the Jeep from the barrier had not been noted in the register which was maintained at the barrier and, as a matter of fact, he admitted that there was no entry with regard to the time of passing of any vehicle nor the names of the occupants of any vehicle at that time. Moreover, it is not the case of Bhagwan Dass, P.W. 4, that he knew the two accused earlier and we, therefore, find it somewhat improbable that he would have been able to recall everything some two years after the incident. Mr Mohunta, therefore, appears to be right that as no identification parade had been held with regard to the two accused, the evidence of Head Constable Bhagwan Dass also could not connect the accused with the crime.

For the reasons recorded above, we are of the opinion that the present appeal deserves to succeed. The accused are accordingly acquitted of the charges levelled against them.