Rajasthan High Court - Jaipur
Bagga Singh And Ors. vs State Of Rajasthan on 28 May, 2001
Equivalent citations: 2001(4)WLN600
Author: K.S. Rathore
Bench: K.S. Rathore
JUDGMENT K.S. Rathore, J.
1. This D.B. Criminal Appeal has been preferred against the judgment dated 14.9.1998 passed by the Additional Sessions Judge No. 1. Kishangarh Bas, District Alwar in Sessions Case No. 102/97 whereby the accused appellants have been convicted and sentenced as indicated below:
Accused appellant Bagga Singh--
2. Convicted under Section 302/149. 148 and 448 I.P.C. under Section 302/149 he has been sentenced to undergo imprisonment for life with a fine of Rs. one thousand, in default of fine, simple imprisonment for six months. under Section 448 IPC simple imprisonment for six months. under Section 148 IPC simple imprisonment for one year.
Accused appellants Balvindar @ Kaku, Uttam Singh, Narendra Pal, Pahalwan Singh, Surendra Pal @ Surendra Singh and Gurdeep
3. Convicted under Sections 302/149. 147 and 448 IPC. under Section 302/149 have been convicted and sentenced to undergo life imprisonment with a fine of Rs. one thousand, in default of fine, simple imprisonment for six months. under Section 147 IPC convicted and sentenced for six months simple imprisonment. under Section 448 IPC simple imprisonment for six months.
4. The prosecution story, in brief, as unfolded during trial is that on 24.3.1997 at 11:30 P.M., a written report (Ex.P.25) was lodged with Police Station Tapukara by the informant Chiman Singh in which Chiman Singh stated that at about 7.00 P.M. his brother-in-law (Jija) Jagjit Singh (deceased) was sleeping in his courtyard of his house, accused persons Bagga Singh, Narendra Pal, Surendrapal Singh, Niku Kaka, Pahalwan Singh, Gurdip Singh & Uttam Singh having pharsi and Lathis in their hands had trespassed into the courtyard and started beating Jagit Singh. Jagjit Singh raised an alarm, hearing which informant Chiman Singh and other villagers rushed towards the spot and they intervened and saved Jagjit Singh. Jagjit Singh was taken to the hospital in injured condition.
5. On the basis of the above report, an FIR Ex.P.26 for the offence punishable under Sections 323, 147 and 447 IPC was registered. Thereafter, Jagjit Singh died having succumbed to his injuries, in the hospital during treatment. Therefore, offence under Section 302 IPC was also added.
6. During investigation, the Police recovered on Lathi at the instance of accused Uttam Singh vide Ex.P.1: one Lathi at the instance of Pritam Singh vide (Ex.P.2). Site plan (Ex.P.3) was also prepared. Blood stained and plain soil and one Chappal of left foot were also taken into possession by the Investigating Officer vide seizure memo Ex.P.4. He also seized one blood stained Rajai vide seizure memo Ex.P.5. The Investigating Officer recovered one Pharsi at the instance of accused Bagga Singh vide Ex.P.6. One Lathi at the instance of accused Gurdip Singh vide Ex.P.7; one Lathi at the instance of accused Pahalwan Singh vide Ex.P.8; one Lathi at the instance of accused Narendra Pal Singh vide Ex.P.9; one. Lathi at the instance of accused Surendra Singh vide Ex.P.10; one Lathi at the instance of accused Balvinder @ Kuku vide Ex.P.12. Accused Uttam Singh was arrested vide arrest memo Ex.P.14. Accused Gurdeep Singh was arrested vide arrest memo Ex.P.15. Accused Narendra Pal was arrested vide arrest memo Ex.P.16. Accused Surendra Singh was arrested vide arrest memo Ex.P.17. Accused Balvinder was arrested, vide arrest memo Ex.P.21. Accused Bagga Singh was arrested vide arrest memo Ex.P.27. Accused Pahalwan Singh was arrested vide arrest memo Ex.P.28.
7. After completion of investigation, the Police submitted charge-sheet against the present accused-appellants in the Court of learned Judicial Magistrate, Kishangarhbas who committed the case to the court of Sessions. After hearing the submissions of the counsel for the accused appellants and Public Prosecutor, the learned Trial Court framed charges against the accused appellants under Sections 302, 147, 148, 302/149, 448 IPC. In the alternative, charge under Section 302/34 IPC was also framed. The charges was read over and explained to the accused, to which they pleaded not guilty and claimed trial.
8. The prosecution in support of its case, examined as many as 15 witnesses. The Trial court examined the accused persons under Section 313 for the purpose of enabling them personally, to explain circumstances appearing against them in the evidence. The accused persons did not choose to examine any witness in defence. After completion of trial, the learned Additional Sessions Judge having found the accused appellants guilty of the offences charged with, convicted and sentenced them in the manner indicated as aforesaid.
9. We have heard the learned Counsel for the parties and also examined their rival contentions with reference to the findings of conviction recorded by the learned Trial Court.
10. The learned Counsel for the appellant Mr. S.R. Bajwa has assailed the judgment of the learned Trial Court on the grounds inter-alia that accused appellants could not be held guilty of murder of Jagjit Singh because of the alleged eye-witnesses as well as Motbir witnesses have not corroborated the prosecution story in its material particulars and have also been declared hostile. He further submits that the medical evidence also does not corroborate with the ocular testimony of the witnesses.
11. Learned counsel's main contention is that conviction of accused appellants was based on the solitary statement of P.W.12 Smt. Swaran Kaur widow of deceased. He submits that Smt. Swaran Kaur is an interested witness and there are inconsistencies in her statement and that her name also does not appear in the First Information Report as an eye-witness.
12. The written report Ex.P.25 dated 24.3.1997 submitted by the informant Chiman Singh son of Shri Labh Singh Raisikh to the Police reads as under:
fuosnu gS fd vkt fnukad 24-3-1997 dks le; djhc 7 cts 'kke dh ckr gS esjk thtk txthr flag vius ?kj ds ckgj vkaxu es lks jgk Fkk A rks cXxk flag iq= bZeku flag] ujsUnz iky flag] UkhUdq iq= cXxk flag] igyoku flag xqjnhi flag iq= cpu flag mRre flag iq= rktk flag tkfr jk;fl[k fuoklh feBh;kokl ykBh QlhZ ysdj vk;s vkSj esjs thtk dks ekjuk 'kq: dj fn;k A jksuk lqudj eS rFkk xkao ds dkQh vkneh igqWp x;s A rFkk cM+h eqf'dy ls txthr flsg dks cpk;k A txthr dsk vLirky VidwMk ys x;s gS A fjiksZV mfpr dk;Zokgh gsrq is'k dh gS A
13. Thus, in the written report Chiman Singh stated that on 24.3.1997 at about 7.00 P.M. when his brother in law (sister's husband) deceased Jagjit Singh was sleeping in the court yard of his own house, accused Bagga Singh son of Gyan Singh, Narendra Pal, Surendra Pal Singh, Ninku sons of Bagga, Pahalwan Singh, Gurdeep Singh son of Bachchan Singh, Uttam Singh son of Taja Singh by caste Rai Sikh resident of Methiawas armed with Lathi and Pharsi started beating jagjit Singh and upon hearing cries of jagjit Singh, Chiman Singh and number of persons belonging to village meethiyawas reached at the spot, intervened and saved Jagjit Singh. Jagjit Singh was taken to hospital Tapukada.
14. Learned counsel for the appellants submits that Chiman Singh has not stated in his written report that PW.12 Smt. Swaran Kaur widow of deceased Jagjit Singh was also present at the spot where the alleged incident took place.
15. Mr. Bajwa referred the witness account of Smt. Swaran Kaur PW.12. The relevant portions of her evidence are reproduced here under:
ftl tkyh ls eS ns[k jgh Fkh cXxk flag us QlhZ ls esjs ifr txthr flag ds flj es lh/kh QlhZ dh ekjh tks mYVh yxh A cXxk flag o igyoku us ykBh txthr flg ds flj ij ekjh A
16. In this cross-examination she has stated as under:
ftl tkyh es ls ns[k jgh Fkh A og gekjs NIij es nf{k.k fn'kk dh rjQ gS A esjs lkFk esjs NksVs & NksVs ikWp cPps [kkV ij ysV jgs Fks A ;g lgh fd eSu eqyfteku ds vkrs gq, ugh ns[kk D;ksfd eS vUnj Fkh A eqyfteku ds vkrs le; buds gkFkks es D;k gfFk;kj Fsk eSus ugh ns[kk A ekjrs gq, eSus ns[kk Fkk A eSus tkyh dks rksM+rs gq, ugh ns[kk A tSls gh tkyh VwVdj esjh pkjik;h ij fxjh rks esjh vkW[k [kqy x;h A tsls gh esjh vkW[k [kqyh rks ,dne ls ;s yksx ekjihV dj Hkkx x;s A^^
17. Arjun Singh PW.9 is also stated to be an eye-witness who was declared hostile by the prosecution. In his examination in chief he has stated as under:
eSus fdlh Hkh O;fDr }kjk txthr flag dks ekjrs gq, ugh ns[kk Fkk A dkSu &dkSu ekjus okys Fks fdl gfFk;kj ls ekj jgs Fks o txthr flag ds fdl fdl txg ij ekjh ;g eSus ugh ns[kk A eS x;k tc txthr flag djkg jgk Fkk A eS x;k rks eq>s ogka dksbZ ugh feyk A eSus txthr flag ds 'kjhj ij dskbZ pksV ugh ns[kh A eS nwj ls gh okil pyk x;k Fkk A
18. PW.13 Chiman Singh was an informant and submitted the written report Ex.P.25 on 24.3.1997 at 11.30 P.M. P.S. Tapukada. He has stated in his chief as under:
eS 'kke dks 6 cts viuh e'khu ij dqV~Vh dkV jgk Fkk A eqyfteku txthr flag ds lkFk ykBh QlhZ ls ekjihV dj jgs Fks A bl ?kVuk dks vtqZu flga us Hkh ns[kk Fkk A^^
19. In the cross-examination he stated as under:
izn'kZ Mh&2 iqfyl c;ku e ;g ugh fy[kk gS fd og txthr flag ds fdl eqyfte ds }kjk fdl gfFk;kj dh dgkW ij pksV ekjh xbZ A ^^
20. He further submits as under:
^^ weS 'kke dsk U;kj dkV jgk Fkk rks eSus cpko dh vkokt ugh lquh A tc eSus vkokt lquh Fkh rks eS ysVk gqvk Fkk A eq>s igqWpus es pkj ikWp feuV yx x;s A EkS tc igqWpk rks txthr flag dks dkQh pksVs yx pqdh Fkh A
21. He further submits as under:
^^ eS ?kVukLFky ls nf{k.k dh rjQ [kM+k Fkk A fQj dgk fd eS mRrj fn'kk dh rjQ [kM+k Fkk A eS igqapk rks txthr flag ds flj ds nkabZ o ckabZ rjQ pksVs Fkh A tkW?k VwVh iM+h Fkh A ;gh pksVs Fkh A^^
22. He further submits as under:
^^ tc eS igWqpk rks ml le; txthr flag csgks'k iM+k Fkk A^^
23. Mr. Bajwa submits that the conviction rests on the solitary statement of P.W.12 Swaran Kaur wife of the deceased. And, she is wholly unreliable witness. In support of this argument Mr. Bajwa referred the FIR wherein her name does not find place despite of the fact that she had accompanied informant to Police Station on both the occasions i.e. immediately after the incident along with injured Jagjit Singh and then again after performing funeral of her husband.
24. Mr. Bajwa placed reliance on the judgment reported in AIR 1977 SC 1753 Narsinbhai v. Chhatrasinh as under:
The evidence of the two eye-witnesses Kantaben (P.W.4) and Shantaben (P.W.5) on which the judgment of the Sessions Judge principally rests cannot be accepted for the following reasons, amongst other given by the High Court:
(1) Both Kantaben and Shantaben speak in their evidence of two blows, one alleged to have been given by respondent 1 and the other by respondent 2. The evidence of Dr. parikh who performed the post mortem shows that five out of the six incised injuries which were found on the deceased were caused by five separate blows.
(2) Though Kantaben was the next door neighbour of Bai Pashi and though she claims to have seen the murderous assault on her, she did not go to Bai Pashi's house and gave no information whatsoever to any one as to the unusual incident witnessed by her.
(3) Not only that Kantaben did not go to Bai Pashi's house to give information of what she had seen but she did not disclose the incident to any person belonging to her own household. In fact, she has frankly admitted that she disclosed the incident for the first time when the Investigating Officer recorded her statement the next day.
25. State of Gujarat v. Patel Mohan Mulji and Anr. as under:
The whole case rests only on the evidence of PWs 5 and 8. P.W.5 is none other than the wife of the deceased and she is an injured witness. No doubt, the occurrence had taken place in the day light. The accused are none other than the brothers and sister of the deceased. Inspite of the close relationship and inspite of the fact that the occurrence had taken place in the broad day light as rightly pointed out by the High Court, the entire case of the prosecution suffers from many infirmities which compel this Court to affirm the judgment of the High Court. P.W.5 states that she was assaulted by the second respondent with a sharp edged pointed weapon on her leg but we do not find any corresponding injury on her person. P.W.5 has not mentioned the names of the assailants either to P.W.3 or to the Police or to any other person till 4.30 p.m. surprisingly the inquest took place at about 2-15 p.m. even before the registration of the case. In the inquest report also none of the names of the assailants find a place. The first information was recorded only at about 5 p.m. which is by a delay of nearly nine hours. It was under these circumstances the High Court was not inclined to place much reliance on the testimony of P.W.5 Now we come to the evidence of P.W.8. The name of P.W.8 does not find a place in Ex.25.P.W.8 was not examined by the Police till the next day. On both the grounds the High Court rejected the testimony of P.W.8. We are in full agreement with the reasons given by the High Court for discarding the testimony of P.W.8. It may be also pointed out here that the medical evidence as rightly held by the High Court is irreconcilably in conflict with the oral evidence given by P.Ws. 5 and 8. Thus, it is seen that there are many infirmities surrounding the prosecution case. Under these circumstances, we do not like to interfere with the order of acquittal passed by the High Court and in fact that judgment of the High Court does not suffer from any manifest illegality or perversity. In the result, the appeal is dismissed. Bail bonds are discharged.
26. We are of the opinion that in view of the observations made by the Apex Court in Narsinbhai v. Chhatrasingh and State of Gujarat v. Patel Mohan Mulji (supra) the testimony of the witness PW.12 Smt. Swaran Kaur does not inspire any confidence and the same should have been discarded by the Trial Court.
27. Mr. Bajwa further contended that the evidence of Swaran Kaur has not been properly appreciated by the Trial Court as is clear from her own admission. In cross-examination she has stated that:
tSls gh tkyh VwVdj esjh pkjikbZ ij fxjh rks esjh vkW[k [kqy xbZ A tSlh gh esjh vkW[k [kqyh vkSj eS ckgj vk;h rks ,dne ls yksx ekjihV dj Hkkx x;s A
28. Since it is the admitted case of PW.12 that at the time of incidence she was sleeping and has not seen the actual assault and she was awakend only on the fall of Jali (ventilation) as is evident by her statement, she cannot be said to have witnessed the occurrence.
29. Mr. Bajwa emphasised on the statement of PW.12 Swaran Kaur stating that her statement is highly unnatural. She give graphic description of each and every blow inflicted by everyone of the seven assailants along with the parts of the body. It is not dispute that the incident took place under cover of darkness. Seven assailants had allegedly surrounded the cot of the deceased. It was almost impossible for the witness to have captured the view vis-a-vis each and every blow. In view of this fact Mr. Bajwa placed reliance on the judgment of Hon'ble Supreme Court wherein Hon'ble the Supreme Court observed that witness could not be in a position to give graphic description of the assault.
30. Mr. Bajwa further contended that assault took place in some other manner and at some other place. PW.12 being wife of deceased, the witness did not respond to the situation in natural manner. She kept quiet and never came forward to protect her husband and raised an alarm only after the assailants had made good their excape. Such in action on the part of the wife disqualifies her to be treated as an eye witnesses. We find support in our observation from the ratio of decision of the Supreme Court in Bhimappa's case reported in 1994(1) R.C.R. 571.
31. Mr. Bajwa submitted that probability cannot be ruled out that her clothes should be blood stained whereas actually her clothes were not blood stained. If she was actually present on the spot and attended her husband, her clothes must have been stained with blood which is not the prosecution case.
32. Mr. Bajwa submitted that she is an unnatural witness and she has made material improvements in her Police Statement Ex.D-1 which was recorded on 4th day of the occurrence and on this count alone it is sufficient to discard her testimony. Not only this, her statement in court is in conflict with medical evidence. She speaks of six blows on the head whereas there were only three injuries on head and forehead. Conflict with medical evidence has been seriously viewed upon by the Apex Court in Ram Narain v. State of Punjab wherein it was observed as under:
In a case where death is due to injuries or wounds caused by a Lathal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses, the High Court does not appear to have considered this important aspect but readily accepted the prosecution case without noticing that the evidence of the eye witnesses in the court was a belated attempt to improve their testimony and bring the same in line with the Doctor's evidence with a view to support an incorrect case.
33. In Amar Singh and Ors. v. State of Punjab it was held as under:
Inconsistency between testimony of sole eye-witnesses and medical evidence-eye witness deposing that several injuries were caused on ribs and abdomen of deceased by sharp weapons-Not a single incised wound was found on the body of deceased as per medical report-There were contusions, abrasions and fractures-Evidence of eye-witness as to place of incident also found inconsistent-accused entitled to benefit of doubt.
34. Mr. Bajwa submits that by no standards of appreciation of evidence this witness should have been relied upon by the learned Trial Court. Significantly, PW.8 Dr. Raj Kumar Misha who conducted post-mortem, has admitted in cross-examination that injuries found on the head of the deceased could have been caused by a single blow. The prosecution case is thus, shrouded in mystery. No conviction should have been recorded on surmises and conjectures.
35. Dr. Mishra in his evidence has opined the cause of death due to fracture of skull bones and Rt. femour Haemorrhage and shock anti mortem in nature.
36. In the cross-examination upon being asked with regard to the injuries of the deceased, he deposed as under:
^^ ;g lgh gS fd pksV la0 1]2 o 3 ds vykok vU; lHkh pksVs 'kjhj ds fdlh uktqd fgLls ij ugh gS rFkk bu pksVks dks Lodkfjr gksus dh laHkkouk dks Hkh udkjk ugh tk ldrk A;g Hkh lgh gS fd flj ij pksV ,d txg ls ekjh tkos rks mlds viksftV es vfLFkHkax ik;k tk ldrk gS A pksV la[;k 1]2 o 3 ,d gh pksV dk ifj.kke gks ldrk gS van:uh pksV ua02 ;fn O;fDr ds Åij ls uhps fxjs rks mlds dkj.k vk ldrh gS A^^
37. Learned Public Prosecutor in reply to the arguments advanced by the learned Counsel for the appellants submits that it is a full-proof case against the accused appellants that they had committed offence punishable under Sections 147, 148, 448, 302 and 302/149 IPC. The written report submitted by Chiman Singh Ex.P.25 contains the names of the accused appellants. He submits that the Trial Court has rightly appreciated the evidence adduced before it and rightly arrived at the conclusion that the medical report is consistent with the evidence of PW.12 Swaran Kaur and PW.13 Chiman Singh and their evidence is corroborated by the medical evidence. Therefore, the judgment of the trial court is just and proper and their conviction should be maintained.
38. Learned Public Prosecutor stated that the judgments cited by the learned Counsel for the appellants are not applicable to the instant case. The facts and circumstances of this case and those of cases cited by the learned Counsel for the appellants are altogether different and are not applicable to this case and the appellants cannot take advantage of the contradictions between the medical report and evidence of PW.12 Swaran Kaur and PW.13 Chiman Singh. He submitted that the statement of PW.12 Swaran Kaur cannot be disbelieved and the Trial court has rightly convicted the accused appellants.
39. We have heard the arguments as advanced by the learned counsel for the appellants and the learned Public Prosecutor and also perused the record and the statement of the witnesses along with the post mortem report and the injury report of the deceased and also gone through the citations of the learned Counsel for the appellants. We have carefully scrutinised the judgments cited by the learned Counsel for the appellants and also gone through the written report Ex.P.25, evidence of PW.12 Swaran Kaur, PW.13 Chiman Singh and that of Dr. PW.8 Dr. Shri Raj Kumar.
40. In our view, statement of PW.12 Swaran Kaur has great contradictions. It seems that she has not actually witnessed the incident. In the examination in chief she states that she was peeping through the Jali (ventilation). She states that Bagga Singh inflicted Pharsi blow on the head of her husband Jagjit Singh from the sharp side which hit him from the blunt side. Bagga and Pahalwan also inflicted Lathi blows on the head of Jagjit Singh. In the cross-examination she states that immediately after the ventilation fell upon her after breaking, she was awakened. As soon as she woke up and came out of the house, the assailants rushed away after beating her husband. Her statement is also not of sterling worth to the extent that she had seen that which accused had inflicted which injury on the particular part of the body of Jagit Singh because it is not possible that a person could give graphic description of each and every blow inflicted by every one of the seven assailants along with part of the body specially when there was darkness. Ever her presence is highly doubtful because had she been at the place of incidence she must have intervened and saved her husband and must have attended him upto the hospital, her clothes must have been stained with blood. But, her clothes were not smeared with blood at all. Thus, it seems that she has not witnessed the incident. Rather it is apparent that the incident had taken place at some other place. Not only this, in her statement she had deposed that six blows were there on the head of Jagjit Singh, but, according to medical report there were only three blows on the head and forehead of Jagjit Singh.
41. Similarly, statement of Chiman Singh who is an informant of this case could not be relied upon. He states that when he was cutting the crop on machine he saw that accused appellants were beating Jagjit Singh by Lathi and Pharsi and further states that Arjun Singh had also witnessed this incident. However, Arjun Singh (PW9) has not supported the prosecution story. At one time Chiman Singh deposed that he was standing towards the south side of the place of incident and thereafter states that he was standing towards the side of north. When he reached there he saw that Jagjit Singh was having injuries on his head both on left and right side and his thigh was in broken condition. These were the only injuries. He further submits that when he reached at the place of incident he saw Jagjit Singh in an unconscious condition. This statement shows that he has also not witnessed the incident.
42. Similarly PW.8 Dr. Rajkumar Mishra who conducted post-mortem, has admitted in cross-examination that injuries found on the head of the deceased could have been caused by a single blow and this makes the prosecution case doubtful to some extent. Similarly Ex.P.25 was submitted after a delay of 4-5 hours of the incident whereas the Police Station is situated at a distance of 6 kms. only from the place of incident.
43. Therefore, looking to the statements of Smt. Swaran Kaur, Chiman Singh and medical evidence as well as the judgments cited by the learned Counsel for the appellants as aforesaid, we are of the opinion that in this case, the prosecution has miserably failed to establish the case as aforesaid beyond reasonable doubt and hence benefit of doubt should be extended to the accused appellants. The Trial court has not scrutinised the evidence of PW.12 Swaran Kaur and PW.13 Chiman Singh in a true perspective and wrongly convicted and sentenced the accused appellants while relying on their testimony which were not of sterling worth.
44. In the result, appeal is, therefore, allowed. The conviction and sentence awarded to the accused appellants by the Trial court vide judgment date 14.9.1998, is set aside. All the appellants are acquitted of the offences charged. The accused appellants Uttam Singh and Gurdeep are already on bail. Their bail bonds are cancelled. Accused appellants namely; Bagga Singh, Balvinder @ Kaku, Narendra Pal, Pahalwan Singh and Surendra pal @ Surendra Singh are in jail. They be released forthwith, if not required in any other case.