IMPORTANT POINT
Discrepancy regarding the time of recording First Information Statement is not enough to castigate the testimony of an important eye witness, whose presence at the spot cannot in any way be doubted.

Headnote:(i) APPEAL AGAINST ACQUITTAL -Indian Penal Code, 1860-Sections 302, 307 and 326 r/ws 149-Six respondents convicted under-Appeal-Order of acquittal-Challenged- Double murder-Deceased P, D and PW 3 were subjected to a violent attack at bus stop-PW3 stated that all six respondents went to bus armed with swords and hatchets-He mentioned different roles played by each respondent in incident-In FIR he named first respondent, third respondent, fifth respondent and sixth respondent- Names of second respondent and fourth respondent not mentioned-Police did not involve PW 3 in test identification parade-Evidence of PW 18 and PW 11-PW 3 s evidence is not sufficient to establish case against second and fourth respondents-Those respondents given benefit of doubt-Acquittal of first, 3rd, 5th and 6th respondent set aside-Their conviction restored. (Paras 18, 19, 20, 21, 22)
       (ii) EVIDENCE-First Information Report-Discrepancy regarding time of recording First Information Statement-On facts of this case not enough to castigate testimony of an important eye witness, whose presence at the spot cannot in any way be doubted-If witness corrected an error slipped out of his tongue-There is no justification terming his evidence as not at all believable , particularly when his presence at scene of occurrence during relevant time is indisputable. (Paras 14 & 9)
       (iii) CRIMINAL JUSTICE-A Judge is expected to actively participate in trial-There is nothing which inhibits his power to put questions to witnesses, either during chief examination or cross examination or even during re-examination to elicit truth. [Evidence Act, 1872-Section 165]-Ram Chander s case, AIR 1981 SC 1036 ; Relied on. (Paras 11 & 12)
       (iv) EVIDENCE-Double murder at bus stop-PW-18, uncle of deceased stated that on day of occurrence he too accompanied his nephew-He received injuries when he tried to protect injured-Medical evidence-Evidence of PW 18 should not have been rejected merely because eye witness PW 3 did not name him in FIR-Condition of maker of FIR should have been borne in mind. (Para 17)

JUDGMENT

Thomas J.-It was a jinxed bus journey for Phool Chand and Dwarkalal as both of them were murdered by armed assailants and also for Badri Lal (PW-3) who too was travelling in the same bus. However, Badri Lal, survived despite being badly mangled by the assailants. The case was registered on his complaint and the present six respondents were challanned by the police for various offences. Sessions Court convicted them under Sections 302, 307 and 326 read with Section 149 of the Indian Penal Code besides other lesser offences relating to unlawful assembly. But High Court of Rajasthan, on appeal by the respondents, acquitted them all. This appeal by special leave has been filed by the State of Rajasthan challenging the said order of acquittal.

2. The double murder happened around 8.00 a.m. on 23.12.1983 at Simalia (Kota District). Prosecution case is, shortly, this : Badrilal (PW3) along with brother Phool Chand and Dwarkalal were travelling in a bus for reaching the court where they had to appear as accused in a case. His uncle Gopal (PW 18) was also travelling with them. When the bus reached Simalia some passengers went out for tea break. Respondents variously armed with swords and hatchets etc. boarded the bus at that stop and unleashed a blitz on Phool Chand, Dwarkalal and Badri Lal with the weapons, They dragged Phool Chand and Dwarkalal out of the bus and continued to shower blows on them. As the victims became motionless they turned to Badri Lal and dragged him also out of the bus and showered him with blows. Respondents left the place when Badri Lal became motionless. Phool Chand and Dwarkalal died at the spot, but since Badri Lal was not destined to die he was escorted to the hospital where his life was saved by prompt medical attention.

3. DIG of Kota region Shri Shankar Sharan was going by that way in a car with a constable Ram Kumar (PW-11). As they reached the spot where the incident took place they heard from the people of a blurred account of what happened. So the DIG made arrangements for immediate ambulancing of Badrilal to the hospital. He sent a wireless message to Sultanpur Police Station and pursuant to it the SHO PW-22 (Aasu Singh) reached the spot. He recorded the statement of PW-25 at 9.25 A.M. which was used for preparing FIR in this case.

4. Respondents were arrested on 26.12.1983 and the police recovered incriminating articles on the strength of informations elicited from them.

5. Dr. Shivachandra Misra (PW-9) who conducted the autopsy on the dead bodies of the two deceased has described the injuries found on them. Among the injuries perforation on the carotid artery on both the deceased became the cause for their instantaneous death. Dr. Chander Mohan Srivastava (PW-13) examined Badri Lal on the same day and found six incised injuries besides some fractures.

6. There is no dispute that Phool Chand and Dwarkalal as also Badri Lal (PW-3) were subjected to a violent attack at the bus stop of Samalia on the morning hours on 23.12.1983. Respondents only disputed about their involvement in the incident. So the crucial question which High Court had to consider was whether appellants were the assailants who launched attack on the deceased and injured. Learned Judges found that it was not possible to attach credence to the testimony of Gopal (PW-18) and Badri Lal (PW-3). Learned counsel who argued for the State of Rajasthan contended that the said finding was the result of misreading the evidence and a consequence of over-looking the testimony of an important witness Ram Kumar (PW-11).

7. PW-3 (Badri Lal) has stated in his evidence that all the six respondents went to the bus armed with swords and hatchets and he mentioned the different roles played by each respondent in this gory incident. But in the first information statement he named first respondent Hanifa, third respondent Gani Mohd., fifth respondent Abdul Kayam @ Babu and sixth respondent Guddu @ Guddi, and not the names of second respondent (Abdul Sal

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1997 Supreme(SC) 36

IMPORTANT POINTDiscrepancy regarding the time of recording First Information Statement is not enough to castigate the testimony of an important eye witness, whose presence at the spot cannot in any way be doubted.

Cases Referred (1)

IMPORTANT POINT
Discrepancy regarding the time of recording First Information Statement is not enough to castigate the testimony of an important eye witness, whose presence at the spot cannot in any way be doubted.