Rajasthan High Court - Jaipur
Bakhtawar Singh vs State Of Rajasthan on 29 June, 1999
Equivalent citations: 1999CRILJ4271
ORDER Mohd. Yamin, J.
1. Appellant-Bakhtawar Singh was convicted under Section 307, IPC and sentenced to five years' rigorous imprisonment with a fine of Rs. 500/- and in default to undergo three months' rigorous imprisonment by learned Additional Sessions Judge No. 2, Hanumangarh vide his judgment dated 29-9-1983. He has assailed his conviction and sentence passed against him in this appeal.
2. Briefly stated, the case of the prosecution is that on 3-3-1982 at 10.30 a.m. Brij Singh came to police station Suratgarh and orally reported that at 8.30 a.m. he was coming to bus stand of Sangita. Surayan Singh and Birbal Singh met him on the way. All of them started towards bus station. When they were coming from the side of Diggi to bus stand, he saw Bakhtawar Singh and the brother-in-law of Preetam Singh coming running towards them. They had 12 bore guns in their hands. They exhorted indicating towards Surayan Singh that enemy had come and should not go back alive. Thereupon Bakhtawar Singh fired at Surayan Singh and the pellets injured the chest of Surayan Singh. Another fire was made by brother-in-law of Preetam Singh on Surayan Singh the pellets of which injured the back of Surayan Singh. Appellant-Bakhtawar Singh again fired and the pellets coming out of the barrel of the gun injured the back of Surayan Singh. Complainant and Gopi Ram also suffered injuries because of these fires. Puran Meghwal was present who saw this incident. Preetam Singh and Surayan Singh had previous enmity, therefore, this incident had taken place.
3. Police registered a case under Section 307, IPC and started investigation. Site was inspected and site plan Ex. P/2 was prepared. A memo describing the details of site Ex. P/2-A was also prepared. A blood smeared shirt of Birju Singh, pyjama of Gopiram and some clothes of Surayan Singh were seized. Gopi Ram was examined by medical officer who prepared injury report Ex. P/ 5. His injuries were X-rayed. Similarly injuries of Birju Singh were examined and the X-rays were taken. Accused-appellant was arrested on 12-3-1982. The single barrel 12 bore guns were recovered on the basis of his information vide Ex. P/24. Two empty cartridges were also recovered at the instance of this appellant. Clothes were sent for examination to the Forensic Science Laboratory. Kamiz and Jacketwere found stained with human blood but blood on pyjama and koti was disintegrated and its origin could not be determined.
4. After investigation challan was submitted before the Magistrate having jurisdiction who committed the case to the learned Additional Sessions Judge. Learned Additional Sessions Judge framed charge under Section 307, IPC against appellant-Bakhtawar Singh and co-accused-Balbir Singh. Both of them denied their indict-ment and claimed trial. Thereupon prosecution examined as many as 10 witnesses in support of its case. Then the appellant and co-accused were examined under Section 313, Cr. P.C. They led defence evidence and examined four witnesses in defence. After hearing both the parties, learned Additional Sessions Judge acquitted Balbir Singh but convicted and sentenced the accused-appellant as stated above.
5. I have heard the learned counsel for the appellant as well as learned Public Prosecutor at length.
6. Learned counsel for the appellant submitted that Balbir Singh was acquitted on the same evidence while accused-appellant has been convicted and his conviction should not be upheld as it is based on the same evidence. He also submitted that the learned Sessions Judge while relying testimony of Birju Singh, Gopi Ram, Makhan Singh and Birbal Singh has committed error as they have improved upon their original versions and contradicted their previous statements on the material part of the prosecution story. He also submitted that there is no expert evidence that the gun seized from the appellant was used in the crime. In the alternative he has submitted that even if it is proved that the accused-appellant fired, the case does not travel beyond the offence under Section 324, IPC.
7. On the other hand, learned Public Prosecutor has supported the conviction and sentence of the appellant.
8. Let me examine the evidence in nut shell. P.W. 8 Dr. Kapil Dev Bhardwaj was incharge of radiology in Sriganganagar under whose supervision X-Rays of Surayan Singh were taken. According to him multiple radio opaque metallic shadows were found in his abdomen. It is P.W. 7 Dr. S. B. Jhanwar who examined Gopi Ram injured and found that there were two lacerated wounds on his body. He also found that there were two holes in the paijama in the corresponding position. These injuries were on the point of knee of the injured. He has further stated that the X-Ray of this injured was taken in his presence. According to him the injury was caused by firearm. He has further stated that he examined Birju Singh and found lacerated wound on his right arm 1" above elbow. He also stated that four lacerated wounds on right arm mid part corresponding holes were found in the shirt. These injuries were also caused by fire-arm and on X-Ray three pallets were found in the right arm. He also examined Surayan Singh and found that there were multiple injuries on his chest around left nipple in a radius of 2" to 3." Some of these wounds were skin deep while others were muscle deep. There was also a lacerated wound on left infra auxiliary area of this injured. There were multiple lacerated wounds of about 3/4 cm. x 3/4 cm on both side of back of abdomen of this injured. There were multiple holes corresponding to these wounds on his shirt and jacket. X-Rays were taken. He stated that his injuries were not sufficient in ordinary course of nature to cause death. In nut shell none of the injured persons had grievous injuries which might be dangerous to life. Thus from the evidence of these doctors it is not found proved that the injuries to any of the injured persons were sufficient in ordinary course of nature to cause death. The injuries were simple as no bone injury was found in the X-Ray examinations.
9. Now to the evidence of injured persons. P.W. 1 Birju Singh was stated that firstly Bakhtawar Singh fired at Surayan Singh which injured his chest and he fell down. Then Bakhtawar Singh fired towards him and the pallets injured him and Gopi. The incident was seen by Bhanwarlal and Puran. He was cross-examined at length but he has maintained what he stated in his examination in chief.
10. Gopi Ram P.W. 2 stated that Bakhtawar Singh fired at Surayan Singh and the pallets injured the chest of Surayan Singh. He has further stated that Bakhtawar Singh again loaded his gun and then fired and these fires injured him and Birju Singh. He has also been cross-examined at length but could not be shattered so far as this version is concerned.
11. P.W. 5 Surayan Singh has stated that Bakhtawar Singh exhorted him and then fired at him. The pallets injured his chest. He fell down and became unconscious. He has been corroborated by other injured persons. Their statements proved very well that it was the appellant who fired at the three injured persons and they were injured during this incident. I am of the view that the statements of all the three injured persons are reliable.
12. Bhanwarlal and Puran, named as eyewitnesses by Birju Singh, have not been produced but other witnesses have been produced by prosecution. The incident took during broad day light nearby bus stand and it was such a place where the witnesses who have been examined by prosecution must be present. They are Makhan Singh and Birbal Singh. P.W. 3 Makhan Singh has not seen the occurrence. According to him it were Birju Singh and Gopiram who came and informed about the incident. Thereafter he along with them went to the police station and reported the matter vide Ex. P/l. P.W. 4 Hardev Singh, similarly is not an eye-witness but he has stated that Bakhtawar Singh came to him and exhorted and said that his father was lying dead at the bus stand and should be removed. He tells about dare devilness of the appellant. However, he went to his father along with Danaram and got his father admitted in hospital.
13. It is Birbal Singh P.W. 6 who saw the incident. He has corroborated all the three injured witnesses and supported the version of prosecution. There appears to be no reason to disbelieve him. The argument of the learned counsel for the appellant that the appellant has been convicted on the basis of same evidence on which co-accused has been acquitted, is not worth acceptance as case of each accused depends on the quality of evidence given against him. The injured witnesses as well as the eye-witnesses deposed against the appellant and there is no reason to disbelieve either the injured persons or Birbal Singh who is an independent witness. The two witnesses Gopiram and Birju Singh who just accompanied Surayan Singh were hit by the appellant for no fault of their. All independent witnesses and their evidence is to be accepted.
14. Gun was recovered at the instance of the accused-appellant and it was not necessary that it should have been sent to an expert for examination in the facts and circumstances of this case. From the evidence on record it is well proved that it was appellant who fired at Surayan Singh, injured him as well as the two persons viz. Gopiram and Birju Singh.
15. So far as the nature of injuries is concerned, it is well proved that none of them was sufficient in ordinary course of nature to cause death. They are on the non-vital part of the body and simple in nature. In Kundan Singh v. State of Punjab 1982 SCC (Cri) 700 : 1982 Cri LJ 626 (2) relied by learned counsel for the appellant conviction of the appellant was altered from Section 307,I.P.C. to Section 324,I.P.C. when the injured persons received simple injuries. In a Rajasthan case Pannalal v. State of Rajasthan 1987 Cri LR (Raj) 671, injuries were simple which were caused by gun fire. It was held that offence does not travel beyond Section 324, IPC. In the facts and circumstances of this case the conviction should be altered from Section 307, IPC to Section 324,I.P.C".
16. Consequently, the appeal is partly allowed. Conviction of appellant-Bakhtawar Singh is altered from Section 307, IPC to Section 324, IPC and he is sentenced to the period already undergone but the sentence of fine is increased from Rs. 500/- to Rs. 5,000/- and in default of payment of fine he will undergo rigorous imprisonment for three months. Fine, if realised, shall be distributed amongst the injured persons i.e. a sum of Rs. 3,000/- will be paid to Surayan Singh and Rs. 1000/- each to Gopiram and Birju Singh. Two months time is given to deposit fine.