BABULAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been directed against the judgment dated Nove-mber 26, 1974 of the learned Additional Sessions Judge No. 2, Jodhpur whereby the accused-appellant Babulal, son of Moolchand Sadh was convicted for the murder of Babulal, son of Chhotu Ram Harijan, under section 302 I. P. G. and sentenced to imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment of which he was to undergo rigorous imprisonment for a further period of one year.

(2.) THE prosecution story in a nutshell is that on April 27, 1974 between 4. 30 p. m. to 5 30 p. m. Babulal Harijan (since deceased) had gone to the hotel owned and managed by the brother of the accused. At that time the author of the first information report P. W. 6 Kamal happened to come on the shop to take tea. THE accused asked Babulal Harijan (since deceased) why he was not being seen near the hotel in those days. He replied that he had not gone anywhere cut of Jodhpur, whereupon the accused further enquired, what made him to bully the hotel boys. THE deceased protested and denied the allegations which annoyed the accused, who in turn told that he would make him forget his "dadagiri" (scoundrelism ). Uttering these words the accused picked up a pair of scissors in his hand which was lying on the counter. He caught hold of the neck of Babulal Harijan (since deceased) and thrust the pair of scissors in his chest. Pulling the pair of scissors out, he rushed towards his house. At the time when the accused was pulling out the pair of scissors from the chest of Babulal Harijan (deceased), two police constables P. W. 3 Kailash Lal and P. W. 4 Rewat Singh happened to come towards the hotel to take tea, and both of them witnessed the accused pulling out the pair of scissors from the chest of Babulal (since deceased ). THEy also saw the accused sprinting towards his house. THE above mentioned two constables followed him but they could not catch hold of him on the way. THE accused went inside his house. After wearing the bush-shirt and placing the pair of scissors inside his house, he came out and was apprehended by the two constables. THE injured Babulal Harijan (deceased) placing his hands on the chest moved towards the Thana but owing to profuse bleeding, he fell down on the way. In the mean time Kamal (P. W. 6) went to the police Station, Udey Mandir and lodged the first information report which was reduced into writing. THE first information report is Ex. P. 12. THE Station House Officer P. W. 8 Bhagwan Das registered the case against the accused under section 307 I P. G. He saw the injuries of Babulal Harijan (since deceased) and sent him to the Mahatma Gandhi Hospital, Jodhpur and thereafter arrested accused Babulal Sadh. THE arrest memo is Ex. P. 4. As the 'tehmad, article 3 and the bush-shirt article 2 worn by the accused were stained with blood, he seized them vide seizure memo Ex. P. 4. He also found an injury in between the thumb and the index finger of the accused. He got the blood removed on a piece of cotton. He seized and sealed the same and also made the note of this fact in Ex. P. 4. He inspected the site, prepared the site memo Ex. P. 3 and the site-plan Ex. P. 15 in the presence of the Motbirs THEreafter, he went to the hospital, but on his arrival he found the injured Babulal Harijan dead. THE autopsy on the dead body of the deceased was performed by the Medical Jurist P. W. 7 Dr. P. Dayal. THE post-mortem report is Ex. P. 13. THE accused expressed his desire to get the weapon of offence discovered from the place of concealment. THE information was reduced into writing. It has been marked Ex. P. 16. THE recovery memo is Ex. P. 11. THE pair of scissors is article 1. THE pair of scissors was sealed in the presence of the Motbirs, and was sent to the Director of Police Forensic Science Laboratory Rajasthan, Jaipur. THE Tehmad article 3, worn by the accused, at the time of occurrence, and the pair of scissors article 1 were found to be stained with blood. THE report of the office of Director, Police Forensic Science Laboratory, Rajasthan, Jaipur Ex. P. 17. THE Police after usual investigation submitted a challan against the accused-appellant in the Court of Additional Munsiff and Judicial Magistrate, No. 2, Jodhpur who after taking proceedings under section 209, Cr. P. C. committed the accused to the Court of Sessions Judge, Jodhpur to stand trial for the alleged offence. THE learned Sessions Judge transferred the case to the Court of Additional Sessions Judge No. 2, Jodhpur by his order dated June 7, 1974.

(3.) P. W. 6 Kamal stated that on the date of occurrence nearly at 4. 30 p. m. he had gore to the hotel of the accused to take tea. At the time when he was sitting inside the hotel Babulal Harijan (deceased) appeared on the scene of occurrence and stood near counter. Babulal (since deceased) asked the witness to offer him tea but as the witness had no money he refused to oblige him. At that time the accused asked Babulal Harijan (deceased) why he was not being seen for a pretty long time. The deceased replied that he had not gone out and was very much in Jodhpur Thereafter the accused questioned Babulal Harijan (deceased) as to why he threatened the hotel boys. Such an act on his part would not be appreciated. On this Babu Harijan (deceased) got infuriated and he took out a "rampuri" knife from his pocket, attempted twice to inflict the injuries on the person of the accused. The first attempt was warded off by the accused who enjoined Babu (deceased) truculently not to behave in that manner, but the deceased could not be desisted and he made a second attempt to inflict an injury on the person of the accused with the knife. The accused got perplexed and enraged. He picked up a pair of scissors, and thrust it into the chest of Babu Harijan (deceased ). After being injured Babu Harijan (deceased) walked towards the Thana but could not go for long and collapsed on the way. He further stated that he did not lodge any first information report at the Police Station but admitted that Ex. P. 12 (first information report) bore his signatures A to B, and those signatures were made regarding the occurrence of murder, but the contents of Ex. P. 12 were not read over to him At this stage the Public Prosecutor sought permission of the court to put leading questions to the witness which was permitted and the witness admitted that the story regarding Babu Harijan (deceased) making an attempt to assault Babu Lai accused with a knife was narrated by him for the first time in the court on that day. He admits that he did not narrate this fact to any body prior to that day. Thus it is crystal clear that this witness has introduced the theory of the accused making two attempts to clause an injury to Babu (deceased) in the right of private defence to his person for the first time after the expiry of more than ten months from the date of occurrence. It is difficult if not impossible to believe that if really such an important happening was noticed by him he would not talk about it to any other person for so long i. e. upto November 6, 1974. This part of the story does not find any place in the first information report. The first information report of this occurrence was given within 5 minutes of the occurrence. P. W. 6 Kamal admitted his signatures on it. P. W. 8 Bhagwan Das has proved that Ex. P. 12 (first information report) was given by P. W. 6 Kamal. The importance of the prompt giving of the first information report cannot be minimised. It is the earliest version of the prosecution case and in the circumstances it can be very safely said that the author of the first information report namely P. W. 6 Kamal at that time had no opportunity to embellish the prosecution story. The absence of the story regarding the deceased making two attempts to inflict injury with the knife on the person of the accused from the first information report is of great significance, and it can be used to contradict the statement of P. W. 6 Kamal. A close reading of the first information report and the statement of the witness given in the court suggest that the portion of the statement of the witness that the deceased first made two attempts to inflict injuries on the person of the accused is an after thought. Two police constables P. W. 3 Kailash Lal and P. W. 4 Rewat Singh appeared on the scene of occurrence just at the time when the accused was pulling out the pair of scissors from the chest of Babulal Harijan (deceased ). Thereafter Babulal Harijan (deceased) walked towards the Thana, but fell down at a little distance. If the deceased had been armed with a knife at the time of occurrence then these two witnesses would have observed a knife either in his hand or lying nearby. These witnesses have been cross-examined at length. P. W. 3 Kailash Lal stated in his cross-examination that he had never seen any knife with Babulal Harijan (deceased) at any time, he had no knowledge whether he used to keep the knife with him or not. PW. Rewat Singh stated under cross examination that neither he saw Babulal (deceased) holding a knife in his hand nor did he see him running after the accused. The Police Station is situated near the place of occurrence. In between there is a small lane. The Station House Officer Bhagwan Das appeared on the scene of occurrence within few minutes of the occurrence. He has categorically stated that he did not find any knife either with Babulal (deceased) or at the place of occurrence. It is pertinent to note that the occurrence took place in the day time on a thoroughfare. If the deceased had made any attempt to inflict injuries on the person of the accused with a knife prior to his receiving the injury at the hands of the accused, the persons standing nearby or atleast the brother of the accused or bell boys or employees of the hotel would have narrated this fact to the Station House Officer. Neither the Station House Officer nor were P. W. 3 Kailsh Lal and P. W. 4 Rewat Singh cross examined on this point, and no suggestion had been made to them. Not only this, such a suggestion was not even made to P. W. 1 Ramnarayan and P. W. 2 Roshanlal the two hostile witnesses who were out and out to support the defence. P. W. 8 Bhagwan Das was examined on November 21, 1974 and P. W. 6 Kamal was examined on November 6 1974, yet no suggestion was made on behalf of the accused to Bhagwan Das that at the time of the occurrence Babu Harijan (deceased) was aimed with a knife and made two unsuccessful attempts to inflict injuries on the person of the accused and such a fact was brought to his notice, during investigation. All these facts stated above are sufficient to hold that P. W. 6 Kamal later on made a volta-face and was persuaded after nearly six months of the occurrence to falsely state that at the time of occurrence prior to the accused criminally assaulting Babulal Harijan (deceased), the deceased had attempted twice to inflict injuries on the person of the accused with a knife. The portion of his statement "that Babulal (deceased) made two attempts to inflict injuries on the person of the accused" is severable from the other portion of his statement and it can be dissected very well. We must observe that even if a witness has been persuaded to introduce some unreliable facts in his statement and the prosecution has been permitted to cross-examine with the leave of the court, his evidence cannot be treated as altogether was head off. What is required to be seen is whether the credit of the witness has been completely shaken. We have read the statement of this witness and have considered it with the caution and care in the light of the criticism levelled by the learned counsel for the accused-appellant. Except the portion of the evidence regarding the deceased making two attempts to assault the accused with a knife, rest of his statement can be relied upon, and it is credit-worthy and can be acted upon to the extent it stands corroborated by other reliable evidence. Reference may be made to Bhagwan Singh vs. The State of Haryana (1 ). Their Lordships of the Supreme Court laid down the law as under : - "but the fact that the court gave permission to the Prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. We are satisfied in this case that the evidence of Jagat Singh, but for whose prompt assistance the case would not have seen the light of day and whose statement had immediately been 'recorded by the D S. P. , is amply corroborated by other evidence mentioned above to inspire confidence in his testimony. Apart from that the fact of recovery of the gold coins in the pocket of the appellant gave a seal of finality to the truth of the charge against the appellant. " The maxim falsus in uno falsus in omnibus (false in one thing false in every thing) is neither a rule of law nor a rule of practice. It is not a sound rule to apply, looking to the conditions in this country, and so it is the duty of the court in cases where the witness has been found to have given unreliable evidence in regard to certain particulars to scrutinise the rest of his evidence with care and caution and if the remaining evidence is trustworthy and the substratum of the prosecution case remains unimpaired on the whole the court should upheld the prosecution case to the extent it is considered safe and trustworthy. The statement of P. W. 6 Kamal after excluding the portion in his statement "that the deceased first made an attempt to assault the accused twice with a knife" stands corroborated by the first information report Ex. P. 12. A part of the statement of the witness can be relied upon by the prosecution. Reference may be made to Jethamal vs. Assistant Collector of Customs, Bombay (2 ). It is pertinent to note that the first information report lodged in the case on hand at the Police Station, within a few minutes of the occurrence contained ail the material facts and in our opinion this first information report lends considerable corroboration to the statement of P. W. 6 Kamal. Besides this the part of the statement of P. W. 6 Kamal relied upon by the court and the trial court stands corroborated in material particulars by the statements of P. W. 3 Kailashlal and P. W. 4 Rewat Singh. Both these witnesses have stated that the accused Babulal is the brother of Govind, owner of the hotel, the venue of the occurrence. At the relevant time they were going to the hotel to take tea from the Police Station, which is situated nearby. As soon as they came out they saw the accused pulling out the pair of scissors from the chest of Babulal Harijan (deceased ). Both of them saw the accused sprinting towards his house and when he came out of the house, they apprehended him. Neither of these two witnesses noticed a knife with Babulal (deceased ). On the same day of the occurrence a pair of scissors article 1 was got recovered by the accused from the place of its concealment vide Ex. P. 11 and the information memo is Ex. P. 36. This pair of scissors was found to be stained with blood by the Director of Police Forensic Science Laboratory, Jaipur vide Ex. P. 17. Thus the discovery of the blood stained pair of scissors at the instance of accused also corroborates the statements of PW-6 Kamal, PW-3 Kailashlal and PW-4 Rewat Singh.