State Of Rajasthan v. Bhanwar Singh .

Arijit Pasayat, J.— The respondent Bhanwar Singh (hereinafter referred to as “the accused”) faced trial along with five others for allegedly committing homicidal death of one Kalu Singh (hereinafter referred to as “the deceased”). The trial court found respondent-accused Bhanwar Singh guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short “IPC”) and sentenced him to imprisonment for life. Three other co-accused persons, namely, Moti Singh, Shankar Singh and Bhanwar Singh were convicted in terms of Section 323 IPC and were given benefit of probation under the Probation of Offenders Act, 1958 (in short “the Probation of Offenders Act”). Two other co-accused persons Guman Singh and Nathu Singh were acquitted. Bhanwar Singh questioned legality of his conviction by preferring an appeal before the High Court of Rajasthan. By the impugned judgment, a Division Bench of the said High Court found that the prosecution has not been able to establish its accusations.

2. The State has questioned correctness of the said judgment in this appeal.

3. Background facts in a nutshell are as follows:

A written report was lodged by Gulab Singh (PW 8) on 27-10-1992 at Udaipur around 7.00 p.m which was sent to Police Station Panrawa on 28-10-1992. According to the FIR, the deceased had succumbed to the injuries on 27-10-1992 at about 5.00 a.m The injuries were inflicted on 26-10-1992 at about 4 p.m On that day in the afternoon, accused Guman Singh and Nathu Singh requested the deceased to go to see a cattle fare. Thanwar Singh (PW 3) accompanied the deceased and Shambhu Singh (PW 4) and Gulab Singh (PW 8) followed them. When the deceased had reached Birothi, all the six accused persons surrounded him and attacked him with sword and lathis. Accused Bhanwar Singh was carrying a sword with which he inflicted injury on the head of the deceased by the sharp edge. The deceased fell down. PW 3 tried to intervene but he also received injuries at the hands of Moti Singh. The deceased was taken to the hospital where he succumbed to the injuries on 27-10-1992 at around 5.00 a.m, as noted above. The doctor, Anis Ahmad (PW 15) who conducted the post-mortem found one injury i.e lacerated wound 5 × 1 cm bone-deep on vertex of skull and fracture on right parieto-frontal bones of skull and right temporal bone. The cause of death was attributed to the head injury. In the evidence in court, the doctor stated that the injury on the head could not have been caused by a sword and it was only possible by a blunt weapon. The trial court placed reliance on the evidence of PWs 3, 4 and 8 to record conviction and imposed sentence, as noted above. In appeal, the High Court found that the evidence of PWs 3, 4 and 8 lacked credibility. It was noted that PW 5, the widow of the deceased categorically stated the she heard about the incident from some persons and sent for PWs 3, 4 and 8 who went to the alleged spot of occurrence to bring the deceased in an injured condition and thereafter he was sent to the hospital. The High Court noticed that though it was accepted by all the witnesses that a large number of persons who belonged to the same village were there when the alleged incident occurred, name of no other person could be stated. The High Court also took note of the fact that there was unexplained delay in lodging the report. It found the presence of PWs 3, 4 and 8 at the alleged spot of occurrence to be improbable. Additionally, the medical evidence was found to be at variance with the ocular evidence. Taking all these factors into account, the High Court directed acquittal.

4. In support of the appeal, learned counsel for the appellant State submitted that PW 5's evidence has been unnecessarily given importance overlooking the eyewitness version as tendered by PWs 3, 4 and 8. Merely because PW 5 had stated that she had sent for PWs 3, 4 and 8 to go and find out the body of her husband, that did not, in any manner, improbabilise the eyewitness version of the said witnesses. Additionally, since the witnesses were busy attending to the injured Kalu Singh, the mere delay in lodging the FIR should not have been given undue importance. It was also submitted that the medical evidence shall in no way rule out veracity of the ocular evidence.

5. None has appeared to represent the respondent when the matter was called.

6. We find that the High Court has carefully analysed the factual position. Though, individually some of the circumstances may not have affected veracity of the prosecution version, the combined effect of the infirmities noticed by the High Court is sufficient to show that the prosecution case has not been established. The presence of PWs 3, 4 and 8 at the alleged spot of incident has been rightly considered doubtful in view of the categorical statement of PW 5, the widow that she sent for these persons to go and find the body of her husband. It is quite unnatural that PWs 3, 4 and 8 remained silent after witnessing the assaults. They have not given any explanation as to what they did after witnessing the assault on the deceased. Additionally, the unexplained delay of more than one day in lodging the FIR casts serious doubt on the truthfulness of the prosecution version. The mere delay in lodging the FIR may not prove fatal in all cases. But on the circumstances of the present case, certainly, it is one of the factors which corrodes credibility of the prosecution version. Finally, the medical evidence was at total variance with the ocular evidence. Though ocular evidence has to be given importance over medical evidence, where the medical evidence totally improbabilises the ocular version that can be taken to be a factor to affect credibility of the prosecution version. The view taken by the High Court is a possible view. The appeal being one against acquittal, we do not consider this to be a fit case where any interference is called for. The appeal fails and is dismissed.