1993 Supreme(Raj) 535
RAJASTHAN HIGH COURT
N.L.Tibrewal, M.R.Calla, JJ.
Pooran - Appellant
Versus
State Of Rajasthan - Respondent
D.B. Crl. A. No. 91 of 1992.
Decided On : 26-04-1993
Advocates:
For the Appellant:A.K. Gupta, Advocate.
For the Respondent: P.P.
In a murder trial, the prosecution must prove beyond reasonable doubt that the incident took place in the manner disclosed by the prosecution witnesses. If the prosecution evidence is inconsistent with the medical evidence, and the prosecution fails to examine independent witnesses or the Investigating Officer, the accused is entitled to the benefit of doubt.
Headnote:
CRIMINAL APPEAL - Murder - Section 302 IPC - First Information Report - Section 162 Cr.P.C. - Medical Evidence - Inconsistent Statements - Independent Witnesses - Investigating Officer - Adverse Inference - Benefit of Doubt.
Fact of the Case:
A written report was made by the complainant alleging a long-standing enmity between the complainant party and the accused, a theft incident, and a subsequent attack by hundreds of persons from the accused's village, resulting in the death of a woman by gunshot injury. The accused were charged under sections 302 or 302/149 and other minor offenses of the Indian Penal Code and Arms Act.
Finding of the Court:
The court found that the written report was not the First Information Report (FIR) as it was not the first in time and was hit by Section 162 Cr.P.C. The telephonic message received by the police was considered the FIR. The court also found that the prosecution witnesses' statements were inconsistent with the medical evidence, and the prosecution failed to examine independent witnesses or the Investigating Officer, which prejudiced the defense case.
Issues: 1. Whether the written report was the First Information Report (FIR) or if the telephonic message was the FIR. 2. Whether the prosecution witnesses' statements were consistent with the medical evidence. 3. Whether the prosecution examined independent witnesses or the Investigating Officer, and if not, whether it prejudiced the defense case.
Ratio Decidendi: 1. The court held that the telephonic message was the FIR as it was the first in time and contained information about a cognizable offense. The written report was subsequent and hit by Section 162 Cr.P.C. 2. The court found that the prosecution witnesses' statements were inconsistent with the medical evidence, particularly regarding the direction of the gunshot wound. 3. The court held that the prosecution failed to examine independent witnesses or the Investigating Officer, which prejudiced the defense case, and drew an adverse inference against the prosecution.
Final Decision: The court allowed the appeal, set aside the conviction and sentences passed against the appellants, and ordered the release of the appellant Pooran, who was in jail. The other appellants, who were on bail, were discharged from their bail bonds.
JUDGMENT
1. - All the accused have preferred a joint appeal before this Court being aggrieved of their conviction under sections 302 or 302/149 and other minor offences of Indian Penal Code and Arms Act by Additional Sessions Judge, Bayana in Sessions Case No. 45/90. The offences under which the appellants were convicted and sentences awarded to them have been detailed out in the judgment of the Trial Court and we need not repeat the same.
2. In brief, the facts of the case are that a written report was made by the complainant Bhoori Singh to the Sub-Inspector at village-Jatpura on 3.5.90. The prosecution case, as disclosed in the report, is that there was a long standing enmity between the members of the complainant party of village Jatpura and the accused persons of village Luhasa. The members of the complainant party are Gujars while the accused persons are Dhakar by caste. It was alleged that accused Ajiram had made a false report against the members of the complainant party about commission of theft in the month of March. Earlier to this, litigations were also pending between them. About the occurrence, it was alleged that hundreds of persons of village Luhasa came to village Jatpura at 9.30a.m, on 3.5.90 and they were a need with guns, farsas etc. They came to the house of the complainant party and were saying"houses be set at lire and shoot all persons who come across. They have committed theft but the police was not taking any step, as such, we would decide our dispute." On seeing the accused persons some members of the complainant party climbed over the roof of the house. This included ladies also. Accused Pooran, Mohan Singh, Daroga and Udai Sigh were stated to be armed with guns, accused Vijay with a country made pistol of 12 bore, Kelli with a farsa and Ajiram and Jai Lal with lathics. In the report, it was further stated that accused appellant Pooran made a gun fire to wamis Smt. Newab Kaur who was standing on the roof. The fire hit on here hack. Accused Mohan Singh, Daroga and Udai Sigh also made gun fires but they struck to the wall of the house. In the report, it was then stated that accused Vijay Dhakar had also sustained a gun shot injury on his leg. Then, it was stated that one Bhim Singh was sent by the complainant to make a report to the police on telephone.
3. On this report, Crime No.46/90 was registered at Police Station-Weir. After usual investigation, a charge-sheet was submitted by the police against the accused/appellants, who were ultimately prosecuted in the Court of Addl. Sessions Judge, Bayana. Accused Pooran was charged under section 302 IPC and other minor offences, while the remaining accused were charged under section 302 read with Section 149 IPC and other minor offences of Indian Penal Code and Ames Act. After completion of the trial, all the accused appellants were convicted and sentenced by the learned trial Judge vide his judgment dated Feb., 26,1992.
4. We have heard Mr. A.K Gupta, learned Counsel appearing for the accused-appellants. We may at the outset express our displeasure that no assistance has been provided to us by the learned Public Prosecutor. In the absence of proper assistance by the Public Prosecutor, we had to examine the entire record by ourselves.
5. Before we deal with the arguments made by the learned Counsel for the appellants, we may state here that the Investigating Officer did not appear in the witness box in spite of the fact that several opportunities were provided to the prosecution to examine him. It is really astonishing and shocking that the Prosecuting Agency and the Investigating Officer were not vigilant even in a murder case. It cannot be disputed that in criminal trials, Investigating Officer is a material witness and more so in a murder case. It was the duty of the Prosecuting Agency to be vigilant and take steps for the appearance of the Investigating Officer of the case. Both have failed to perform th
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