State Of Jammu & Kashmir Vs. S.Mohan
Singh & Anr  Insc
123 (9 March 2006)
B.N.Agrawal & A.K.Mathur B.N.Agrawal,
No. 1 S. Mohan Singh was convicted by
the trial court under Section 302 read with Section 34 of the Indian Penal Code
(hereinafter referred to as 'IPC') and sentenced to undergo imprisonment for
life and to pay a fine of Rs. 1,000/-, in default to
undergo further imprisonment for a period of six months. Respondent No. 2 S. Prithpal Singh
was convicted under Section 302 IPC and sentenced to undergo imprisonment for
life and to pay a fine of Rs. 1,000/-, in default to
undergo further imprisonment for a period of six months.
appeal being preferred, the High Court acquitted both the respondents. Hence,
this appeal by special leave has been filed by the State of Jammu &
case, in short, was that a dispute was going on between Yush
Paul Singh son of Ram Lal and one Titu,
nephew of Balwant Singh, on the one hand and the two
respondents on the other hand and for resolving the same, a meeting was
convened on 23rd July, 1985 at 6.00 p.m. on the bank of river near Gurdwara in village Sawan Chak. In the said meeting, no decision could be arrived at,
as such, respondent No. 1 S. Mohan Singh
is said to have left the meeting in the midway and other people also dispersed
after this. Thereafter, Ram Lal heard cries of his
son Yush Paul Singh from the compound of Gurdwara and on arrival there, he found that respondent No.
1 had caught hold of Yush Paul Singh and respondent
No. 2 was inflicting injuries upon him with knife. Seeing this, Ram Lal made an attempt to catch hold of respondent No. 2 in
order to save his son but in the meantime, respondent No. 1 is said to have
hurled a stone on him, as a result of which, Ram Lal
sustained injuries and fell down.
from Ram Lal, the occurrence is said to have been
witnessed by Babu Ram (PW 6), Pritam
Singh (PW 4), Balwant Singh and Satnam
Singh. Thereafter, Yush Paul Singh was immediately
taken to the hospital on a truck where the doctor declared him dead. Thereupon,
Ram Lal accompanied by witnesses, Pritam
Singh and Balwant Singh went to Kathua
police station to lodge a first information report where upon the statement of
Ram Lal, a case was registered by the police on the
same day i.e., on 23rd July, 1985 at 7.20 p.m. against the respondents. The
police after registering the case, took up
investigation and on completion thereof submitted charge-sheet, on receipt
whereof the learned Magistrate took cognizance and committed the respondents to
the court of Sessions to face trial.
Defence of the accused persons was that they were innocent, had no
complicity with the crime, no occurrence much less the occurrence alleged had
taken place and the prosecution party had received injuries in some other
manner of occurrence at some other place inasmuch as they have been falsely
roped in in this case to feed fat the old grudge.
trial, both the parties adduced evidence and upon conclusion thereof, the trial
court recorded conviction of the respondents, as stated above, which having
been reversed by the High Court, the present appeal by Special Leave by the
State of Jammu & Kashmir.
the course of hearing, it has been submitted by learned counsel appearing on
behalf of the respondents that respondent No. 2 S. Prithpal Singh
died during pendency of this appeal on 27th
November, 2003 which fact has not been denied on behalf of appellant State. As such, the present appeal against
respondent No. 2 stands abated. In view of this, in the present appeal, we are
required to consider the case of respondent No. 1 S. Mohan Singh alone.
prosecution case as disclosed in the first information report is corroborated
by the medical evidence as the doctor who examined deceased Yush
Paul Singh opined that he received injuries by knife and the injuries were
sufficient to cause death in the ordinary course of nature. Upon the disclosure
statement made by respondent No. 2, a knife was recovered from his house.
said knife was shown to the doctor who stated that only one side of the blade
of the knife was sharp and the other edge was blunt. Doctor Harbans
Singh, who was examined as PW-13 on seeing the said knife, stated that the
injuries found on the person of deceased could have been inflicted by the same.
such, the High Court was not justified in coming to the conclusion that the
medical evidence does not fit in with the prosecution case. Objective findings
of the investigating officer also prove the place of occurrence disclosed by
the prosecution witnesses, as the investigating officer
who immediately inspected the place of occurrence, after registration of the
case, found and recovered blood stained earth therefrom
which contained human blood.
five eyewitnesses, witnesses Balwant Singh and Satnam Singh could not be examined during trial for the
reasons, which were beyond the control of prosecution. The trial court has
found and recorded, as such in its judgment that on several dates in the years
1986 and 1987, these witnesses were produced by the prosecution for their
examination but on all the occasions, the accused took time in the case and did
not allow the prosecution to examine them. Thereafter, when the witnesses did
not appear, the trial court issued warrants of arrest against them on request
being made by the public prosecutor.
all the time, they were found absent from their houses and it was reported that
they had gone out for discharging their professional duties as drivers. From
the aforesaid facts, it becomes clear that the prosecution was all the time
ready and willing to examine the witnesses and had taken all possible steps for
their examination but they could not be examined for the reasons beyond their
such, the High Court was not justified in drawing adverse inference against the
prosecution for non-examination of these two witnesses.
next eyewitness was Pritam Singh who was examined as
prosecution witness in court. This witness supported the prosecution case by
saying that a meeting was convened for resolving dispute between the parties
but as the same could not be resolved, respondent No. 1
who was also present in the meeting, left the place. He admitted that he heard Yush Paul Singh crying but has not supported the
prosecution case in relation to respondent No.1's catching hold of the deceased
and respondent No. 2 assaulting him with a knife, although this witness in his
statement made before the police had specifically mentioned these facts. This
witness further stated in court that he took Yush
Paul Singh along with other injured to the hospital where the doctor declared Yush Pal Singh dead and thereafter he accompanied Ram Lal to the police station. In our opinion, this witness has
supported the prosecution case to a great extent, excepting the part played by
the respondents, in his statement made in court and as he was gained over by
the defence, he did not support the prosecution case
in relation to part played by the respondents though presence of respondent No.
1 S. Mohan Singh in the meeting has been
admitted by him.
two eyewitnesses are the informant Ram Lal and his
brother Babu Ram. Ram Lal
is father of deceased Yush Paul Singh whereas witness
Babu Ram is uncle of deceased Yush
Paul Singh. These two witnesses have supported the prosecution case disclosed
in the first information report in all material particulars and consistently
stated that respondent No. 1 caught hold of the deceased and respondent No. 2
inflicted injuries upon him with knife. We have been taken through the evidence
of these two eyewitnesses in extenso.
evidence is quite consistent, natural and both the witnesses have stood the
test of lengthy cross-examination by the defence. Out
of these two witnesses, Ram Lal was the informant and
an injured witness as the doctor who examined him on the date of occurrence
itself found that he received injuries by hurling of stone. Nothing could be
pointed out on behalf of defence to show that the
evidence of these two eyewitnesses is not credible, excepting
this that they were interested witnesses. The High Court was not justified in
disbelieving them on the sole ground that they were interested persons. It is
well settled that in a murder trial, merely because a witness is interested or
inimical, his evidence cannot be discarded unless the same is otherwise found
to be not trustworthy.
present case, we are of the view that the evidence of these two witnesses is
credible more so when witness Ram Lal
present case, the occurrence is said to have taken place on 23rd July, 1985 at
6 p.m., the first information report was lodged at 7.20 p.m. and a copy of the
same was received by the Magistrate on the next day i.e., 24th July, 1985 at
12.45 p.m. The High Court was of the view that there was inordinate delay in
sending the copy of the first information to the Magistrate as the same was not
sent to the Magistrate during the night between 23/24th July, 1985. In relation
to this, the prosecution has taken a definite stand that as there was no
practice prevalent in the area for sending the report to the residence of
Magistrate, as such no adverse inference should have been drawn by the High
Court for not sending the report at the residence of Magistrate. In our view,
copy of the first information report was sent to the Magistrate at the earliest
on the next day in the court and there was no delay, much less inordinate one,
in sending the same to the Magistrate. In any view of the matter, it is well
settled that mere delay in sending the first information report to a Magistrate
cannot be a ground to throw out the prosecution case if the evidence adduced is
otherwise found to be credible and trustworthy.
perused the two judgments rendered by the trial court and the High Court and
the evidence adduced on behalf of the parties, we are of the view that the
trial court was quite justified in recording the order of conviction and the
order of acquittal rendered by the High Court suffers from the vice of
perversity and is liable to be set aside.
result, the appeal in relation to respondent No. 1 S.Mohan Singh is
allowed, the order of his acquittal rendered by the High Court is set aside and
his conviction recorded by the trial court is restored. The respondent No. 1 is
directed to be taken into custody forthwith to serve out the remaining period
of sentence. The appeal in relation to respondent No. 2 S. Prithpal Singh
has abated in view of the fact that he died during the pendency
of this appeal.