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Judgment
Kanwaljit Singh Ahluwalia, J—Ramesh S/o. Shivlal, Sandeep Langda S/o. Badshah, Bhata Singh S/o. Kishanlal and Vikram Singh S/o. Bhairu Singh had presented the present appeal through Jail to assail the impugned judgment dated 20.11.2007 whereby the Special Judge, SC/ST (Prevention of Atrocities) Cases, Jaipur held Sandeep Langda guilty of offences under Sections 302, 341 IPC and remaining three accused Ramesh, Bhata Singh and Vikram Singh guilty of offence under Section 302/34, 341 IPC. Accused Ramesh was also convicted for offence under Section 382 IPC. Having convicted the above appellants for the above said offences, the trial court vide a separate impugned order of even date sentenced them as under:--
"Accused, Sandeep Langda
"U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo one month simple imprisonment.
U/s. 341 IPC: One month simple imprisonment.
Accused, Bhata Singh and Vikram Singh
"U/s. 302/34 IPC: Life imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo one month simple imprisonment.
U/s. 341 IPC: One month simple imprisonment.
Accused, Ramesh
"U/s. 302/34 IPC: Life imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo one month simple imprisonment.
U/s. 341 IPC: One month simple imprisonment.
U/s. 382 IPC: Three years simple imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo one month simple imprisonment.
(All the sentences were ordered to run concurrently)"
Bhata Singh besides a Jail appeal had also presented D.B. Criminal Appeal No. 583/2008 through counsel. Bhata Singh died during pendency of the appeal and a coordinate Bench on 6.1.2009 had disposed of D.B. Criminal Appeal No. 583/2008 by holding that the appeal has abated. Therefore, now due to death of Bhata Singh, we are left only with three appellants, namely Sandeep Langda, Ramesh and Vikram Singh.
Case of the prosecution in nutshell is that all the four accused with common intention on 4.7.2006 gave fist and kick blows to deceased Gogin @ Gagan, caste Burman Bengali, r/o District Kooch Bihar and Sandeep Langda had given a solitary blow on the head of deceased Gogin @ Gagan Burman with a wooden plank.
Prosecution case rests on the testimony of two eye-witnesses namely Sapna (P.W.8) wife of first informant Santosh Burman (P.W.7) and another Sapna (P.W.9) a girl aged 10 years grand-daughter of deceased Gagan Burman. In the present case, Santosh Burman (P.W.7) son of the deceased had presented written report (Ex. P.11) before Nem Singh (P.W.10) who on 4.7.2006 was posted as S.H.O., Police Station Ashok Nagar, Jaipur. Written report (Ex. P.11) when translated into English reads as under:--
"Written Report Date-4.7.2006
To,
The SHO Sahib, P.S. Ashok Nagar, Jaipur.
Sir,
It is submitted that my father Gogin @ Gagan used to ply rickshaw. On 4.7.2006 at about 11.30 AM on Gautam Marg, Sandeep Langda, Bhata Singh, Vikram, Ramesh and their another friend caught hold of my father and started beating him by giving kick and fist blows. Ramesh, Bhata Singh, Vikram had caught old of my father and Sandeep Langda had given blow with a wooden plank on the head of my father due to which he fell down and became unconscious. Khagendra Burman took him to SMS Hospital and got him admitted there where he died during treatment. Regarding the occurrence, my wife and niece (Bhanji) had informed and other people also had seen the occurrence. Accused had caused injuries with an intention to kill my father. My father was wearing watch manufactured by Sonata company. The said watch is missing. Report is presented. Action be taken.
Date-4.7.06
Sd/- Santosh Burman S/o. Gogin @ Gagan"
Dr. Sumant Dutta (P.W.4) on 5.7.2006 at 3.00 PM had conducted autopsy on the dead body of deceased Gogin @ Gagan Burman. The doctor stated that Gagan Burman was admitted in Ward No. 2F, Medical Unit-2 on 4.7.2006 and as per bed head ticket, he died on 4.7.2006 at 4.00 PM. The doctor had found following injuries on the person of deceased Gagan Burman in post-mortem report (Ex. P.6):--
"1. Abrasion 1/2 x 1/2 cm. right dorsal hand red colour.
Abrasion 1/2 cm over left dorsal hand red colour.
Bruise 2 x 2 cm right forearm upper 1/3rd dorsal hand red colour underlying hematoma red colour.
Bruise 4 x 3 cm right post auricular region. On examination reddish hematoma underlying.
On discussion of temporal sub scalp hematoma right post auricular area of temporal reddish in colour."
The doctor had found hematoma below the temporal bone. Size of extra-dural hematoma was 04 x 03 cm x 1.5 cm. The doctor further stated that below the right parieto temporal region also sub-dural hematoma was present. A perusal of injuries reveal that injuries No. 1 and 2 were abrasions, injuries No. 3 and 4 were bruises and below injury No. 4, hematoma was found. Injury No. 4 is specifically attributed by the eye-witnesses to Sandeep Langda and has proved fatal.
Sudhir Burman (P.W.1) has not supported the prosecution case and was declared hostile. This witnesses stated in court that he knew Gagan deceased who was murdered. At 11-12 O''clock in the morning he heard from somebody that Gagan was taken to the hospital. He went to the hospital. There Khangendra (P.W.12) was standing. Gagan was not in a position to speak. Sudhir Burman (P.W.1) asked Khagendra (P.W.12) about the occurrence and he informed that somebody had given beating to the deceased. The witness further stated that names of accused were not disclosed to him and he is not aware as to who caused injuries to Gogin @ Gagan Burman deceased. The learned Additional Public Prosecutor got the witness declared hostile and confronted him with his previous statement recorded by the police.
Constable, Sujan Singh (P.W.2) is witness of recovery of wooden plank from Sandeep Langda. This witness stated that wooden plank was taken into possession vide memo (Ex. P.4).
Constable, Kunda Ram (P.W.3) is witness of recovery of watch at the instance of accused-appellant Ramesh.
Om Prakash (P.W.5) stated that he used to give rickshaws on hire and Ramesh had taken rickshaw from him on hire.
Constable, Deewan Chand (P.W.6) had witnessed the arrest memo of Ramesh (Ex. P.7). He further attested the arrest memos of Bhata Singh, Sandeep Langda and Vikram Singh vide Exhibits-Ex. P.8, P.9 and P.10 respectively.
Santosh Burman (P.W.7) stated that he was working as a waiter at Surya Mahal Restaurant. He received a telephonic information from his wife Sapna that he should return early to his home. This witness further stated that his wife had not told the name of the accused, but had informed that 4-5 persons caused injuries to the father of the witness. To be precise, the witness stated as under:--
Smt. Sapna (P.W.8) is daughter-in-law of deceased Gagan Burman. She sated that at about 8.00-9.00 AM she had gone to the house of neighbour to do domestic work. When she came out of the house to throw garbage then she had seen her niece (Bhanji) Sapna weeping. She went near to her and saw that four person were giving beating to her father-in-law, out of whom two persons were Vikram Singh and Bhata Singh, whereas names of other two persons were not known to her. She further stated that one person was fair and tall and another was lame. Lame person had caused injury on the head of her father-in-law with a wooden plank. Others were giving kick and fist blows to her father-in-law. This witness further stated that all the four accused present in court are the same persons who had caused injuries to her father-in-law. But she was not able to name each accused individually.
Sapna (P.W.9) is grand-daughter of deceased Gagan Burman. The court permitted her to step into the witness box after examining her capability to depose and give statement. Sapna (P.W.9) stated in court that all the four accused had beaten his maternal grand-father. Sandeep Langda had given a blow on the head of his maternal grand-father with a wooden plank. Other three accused had caught hold of the deceased. She raised noise and called her maternal aunt Sapna (P.W.8). But before her (aunt Sapna, P.W.8) arrival, accused ran away from the spot. It will be apposite to reproduced the exact words of the witness as under:--
She further stated that after injuries were caused to her maternal grand-father, he came to the house, ate Kachori and slept. Later condition of maternal grand-father deteriorated and friend of her maternal grand-father was called, then maternal grand-father was brought to the hospital. In court the witness further stated that she called Sapna (P.W.8) from the place where she was working.
Nem Singh (P.W.10) being investigating officer has proved various facets of investigation.
Shiv Charan (P.W.11) had also participated in investigation.
Khagendra (P.W.12) stated that on the day of occurrence, he was present in his house. Then a woman called that an old person had became unconscious. After changing his clothes, he came to the house of deceased and found him unconscious.
Dinesh Kumar (P.W.13) in court had turned hostile to the prosecution and stated that he had not seen Sandeep Langda having caused any injury to a person who was plying rickshaw.
We have heard Shri Rohan Jain, learned counsel for the appellant, and Shri N.S. Dhakar, learned Public Prosecutor.
In the present case, deceased Gagan was plying rickshaw whereas Sandeep Langda was a beggar. Sandeep being lame used a cart having four wheels to move. Ramesh accused also plied rickshaw. There is no evidence on record that relations between the deceased and the accused earlier to the occurrence were not cordial, or they were having some rancour or enmity. Therefore, there is merit in the contention of the learned counsel that the occurrence, if any, had taken at the spur of moment without any premeditation.
Smt. Sapna (P.W.8) had stated that she had gone to do the work of domestic maid in some house. She stated in court that she came out of the house to throw garbage, then heard noise and came out and went to the place of occurrence. No other person of the locality was examined. Whereas Sapna (P.W.9) niece (Bhanji) of Smt. Sapna (P.W.8) has stated in court that her maternal aunt was not present at the spot and when she reached, accused had already decamped from the spot. Therefore, Sapna (P.W.9) denies presence of Sapna (P.W.8) at the place of occurrence, even otherwise presence of Sapna (P.W.8) at spot is improbable. She is a chance witness who allegedly arrived at scene of the occurrence only at the nick of moment to witness the occurrence. We shall believe Sapna (P.W.9) so far she rule out presence of her maternal aunt (Mami) Sapna (P.W.8). Thus, Sapna (P.W.9) is the solitary eye-witness of the occurrence before us. The Hon''ble Apex Court in the case of Vadivelu Thevar Vs. The State of Madras, AIR 1957 SC 614 : (1957) CriLJ 1000 : (1957) 1 SCR 981 , qua appreciating evidence of solitary eyewitness has observed as under:--
"Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:--
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable."
In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
Thus, we are of the view that some exaggeration on the part of solitary witness to inflate number of accused cannot be ruled out. There were only four injuries on the person of deceased. Injuries No. 1 and 2 are minor abrasions and injury No. 3 was bruise on the forearm. Injury No. 4 which has been caused on the head has been proved fatal. Injury No. 4 has been specifically attributed to accused Sandeep Langda. Sapna (P.W.9) has specifically stated in court that other three accused had caught hold of deceased Gagan Burman, her maternal grand-father.
In the present case, occurrence had taken place on 4.7.2006 at 11.30 A.M. Report was lodged on 4.7.2006 at 10.00 PM and special report reached the Ilaka Magistrate on 5.7.2006. We cannot rule out that due to delay in reaching of the special report to the Ilaka Magistrate, three accused have unnecessarily been assigned the role that they have caught hold of the deceased. In Bijoy Singh and Another Vs. State of Bihar, AIR 2002 SC 1949 : (2002) CriLJ 2623 : (2002) 2 Crimes 437 : (2002) 1 JT 372 Supp : (2002) 3 SCALE 592 : (2002) 9 SCC 147 : (2002) 3 SCR 179 : (2002) 1 UJ 749 : (2002) AIRSCW 1873 : (2002) 4 Supreme 362 , the Hon''ble Supreme Court has held as under:--
"6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.
Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. (Emphasis supplied). Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it.
In the instant case, the copy of the report referred to in Section 157 CrPC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be" and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said report in terms of Section 157 CrPC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission."
Considering that accused Bhata Singh had died during pendency of appeal, so far as accused Ramesh and Vikram Singh are concerned, in the facts and circumstances of the present case, we are of the view that it is a fit case where we ought to sift the grain from the chaff. Considering the nature of injuries No. 1 to 3 and the fact that solitary eyewitness Sapna (P.W.9) only assigned the role to three accused Ramesh, Bhata Singh and Vikram Singh that they had caught hold of the deceased, we are of the view that benefit of doubt can be extended to them. The deceased can suffer abrasions and bruise on hand and arm on account of fall on the ground also. Such a possibility cannot be ruled out. Therefore, as a matter of abundant caution, we shall extend the benefit of doubt to the appellants Ramesh S/o. Shivlal and Vikram Singh S/o. Bhairu Singh.
Now we shall take the role of Sandeep Langda. It has come in evidence that he had no legs and was using a cart for his movement and used to survive by begging. Deceased used to ply a rickshaw. We have already come to a conclusion that the prosecution has not brought on record any evidence to infer that relations between the parties before the present occurrence were inimical. Thus, we cannot rule out that the occurrence had taken place at the spur of moment without any premeditation. Sandeep Langda had given only one blow with a wooden plank on the head of deceased. Thus, we can safely say that accused Sandeep Langda had no intention to cause death and only knowledge can be attributed to him.
Thus, we convert the conviction of the accused-appellant Sandeep Langda for offence under Section 302 IPC to offence under Section 304 Pt.II IPC, and by setting aside his conviction and sentence of life imprisonment under Section 302 IPC, we sentence Sandeep Langda accused-appellant to seven years rigorous imprisonment for offence under Section 304 Pt.II IPC. Considering that accused Sandeep Langda was a beggar, we refrain to impose any fine upon him.
As a result of above discussion, conviction recorded and sentence awarded upon the accused-appellant Ramesh and Vikram Singh by the trial court is set aside. They are acquitted of the charges. However, conviction of accused-appellant Sandeep Langda is altered from Section 302 IPC to Section 304 Pt.II IPC and his sentence is reduced from life imprisonment to seven years rigorous imprisonment. Conviction and sentence awarded by the trial court to the accused-appellant Sandeep Langda for offence under Section 341 IPC is sustained, the sentence awarded on this count shall run concurrently with sentence awarded under Section 304 Part II IPC.
The appeal stands disposed of in above terms.