Rajasthan High Court - Jodhpur
Mita Singh @ Gurmeet Singh & Ors vs State on 29 September, 2016
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
D.B. CRIMINAL APPEAL NO.765/2008
APPELLANTS:-
1. Mita Singh @ Gurmeet Singh S/o Mangal Singh,
by caste Rai Sikh,Resident of Chak 3, SHPD,
P.S. Suratgarh, Dist. Sriganganagar
2. Mehtab Singh S/o Sunder Singh, B/c Rai Sikh,
resident of Saadakwali, Sri Ganganagar
3. Natha Singh S/o Shinghara Singh, B/c Rai Sikh,
resident of Chak 3, SHPD, P.S. Suratgarh,
District Sriganganagar.
4. Deshu Singh @ Deshraj Singh S/o Mangal Singh,
by caste Rai Sikh resident of Chak 3, SHPD,
P.S. Suratgarh, District Sriganganagar.
VERSIS
RESPONDENT:-
State of Rajasthan
Date of judgment : 29th September, 2016
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI
Mr. H.S. Kharlia, Sr. Advocate with
Mr. Bhawani Singh, for the appellants.
Mr. J.P.S. Choudhary, P.P. for the State.
Mr. Deepak Agarwal, on behalf of
Mr. M.K. Garg, for the complainant.
REPORTABLE : -
BY THE COURT (PER HON'BLE G.R. MOOLCHANDANI, J)
This appeal is directed against the judgment dated 20.9.2008 passed by Additional Sessions Judge No.2, Sri Ganganagar, Camp Suratgarh in Case 2 No.42/2004 convicting and passing the sentence against the accused-appellants as under:-
Appellant-accused No.3 Natha Singh:-
U/S.302 I.P.C. Life imprisonment with a fine of Rs.2000/-, in default of payment of fine, further to undergo two years rigorous imprisonment.
U/S 307/34 I,P.C. Ten years rigorous imprisonment with a fine of Rs.5000/-, in default of payment of fine, further to undergo one year's rigorous imprisonment.
U/Sec.27 of Arms Act Three years rigorous imprisonment with a fine of Rs.2000/-, in default of payment of fine, further to undergo six months rigorous imprisonment.
Appellants No.1 "Mita Singh" @ "Gurmeet Singh", No.2 "Mehtab Singh" and No.4 "Deshu Singh @ Deshraj Singh":
U/s.302/34 I.P.C. Life imprisonment with a fine of Rs.10,000/-, in default of payment of fine, further to undergo two years rigorous imprisonment.
U/s.307 I.P.C. Ten years rigorous imprisonment with a fine of Rs.5000/-, in default of payment of fine, further to undergo one years rigorous imprisonment.
U/s.27 of Arms Act Three years rigorous imprisonment with a fine of Rs.2000/-, in default of payment of fine to further undergo six months rigorous imprisonment.
and acquitting accused Falki alias Surjit Singh, Bittu alias Resham Singh, Ranjeet Singh and Mangal Singh from the charges under Sections 147, 148, 341/307/149, 302/149 I.P.C.3
2. FIR lodged by complainant Sharpudeen reads as under:-
^^vkt fnukad 17&9&2004 ds oDr 11 PM ij Jh guqeku flag ASI cgokys jokuxh jiV la[;k 1214 rkjh[k gktk dk x;k gqvk okihl vk;k o ,d fdrk ipkZ C;ku Jh 'kjQw nhu @ eks0 lQh C;ku cnh etewu ipkZ C;ku Jh 'kjQwnhu @ eks0 lQh fnukad 17-9-2004 le; 10 PM Jh 'kjQwnhu @ eks0 lQh s/o vYyk nkn tkfr eqlyeku mez 20 fuoklh pd 1 FDM jksgh ljnkj x< gky tSj bZykt CHC lwjrx< us C;ku fd;k fd geus pd 3 SHPD esa Jh lqjsUnz jkadk dh tehu fgLlk ij dk'r dj j[kh gSA dy eSa pd 3 SHPD x;k gqvk Fkk ogka ij eq>s eaxyflag jk;fl[k o mlds yMdk ehrkflag] chVw us eq>s xkyh xyksp dh FkhA vkt fnu esa esjs cMs HkkbZ eks0 cD'k @ dkdk ds lkFk Hkh mudh cl esa cksypky gqbZ FkhA vkt fnukad 17-9-2004 dks eS Jh lqjsUnz jkadk okyh tehu esa x;k gqvk FkkA ogka ls eS pd 3 SHPD x;k rks vkxs eq>s esjs HkkbZ eksgEen cD'k @ dkdk o uwj lean feys tks pd 3 SHPD esa tqes dh uekt i<us vk;s gq;s FksA le; djhc 5&5- 30 cts 'kke ge rhuks HkkbZ viuh <k.kh ds fy;s jokuk gq,s tSls gh ge xyh chdjflag ds edku ds ikl igwaps rks vkxs xyh esa ehrkflag S/o eaxyflag] nslwflag S/o eaxyflag] chVw S/o eaxyflag] uRFkkflag] Qydh S/o lrukeflag] j.kthr S/o txjflag] eaxyflag vdoku jk;fl[k lduk;s pd 3 SHPD o egrkcflag jk;fl[k fuoklh lknd okyh [kM+s FksA ftues ehrkflag] nslwflag] uRFkkflag] egrkcflag ds gkFkksa esa fiLrkSy Fkh o chVw] j.kthr ds ikl xaMkfl;k] Qydh ds ikl cjNk] eaxyflag ds ikl ryokj FkhA ges ns[krs gh ehrkflag oxSjk us ges lkeus vkrs ns[k dj xkyh;k fudkyh vkSj dgk fd vkt rq>s ns[krs gS bruk dgrs gh uRFkkflag us esjs cMk HkkbZ eksgEen cD'k @ dkdk dks tku ls ekjus dh uh;r ls fiLrkSy ls nks Qk;j fd;k ftlls esjk HkkbZ ds Qk;j yxus ls fxj x;kA ge nksuks HkkbZ Mjrs ihNs gVus yxs rks ehrkflag us ,d Qk;j fd;k tks esjs HkkbZ uwjlean ds iSjks esa yxkA rFkk nslw us fiLrkSy ls ,d Qk;j eq>s tku ls ekjus dh uh;r ls esjs ij fd;k tks esjs nkfgus iSj ij yxkA o egrkcflag us Hkh fiLrkSy ls ,d Qk;j esjs HkkbZ uqjlean ij tku ls ekjus dh uh;r ls fd;k] Qk;j yxus ls eS o esjk cMk HkkbZ uwjlean Hkh ekSdk ij fxj x;sA chVw] Qydh] j.kthr o eaxyflag [kMs dgrs jgs fd vkt bu lcdks tku ls ekj nks dksbZ cp ugha tkosA brus esa fy;kdr vyh] eqLrkd o v;wc Hkkx dj vk x;sA rks ehrkflag vkfn gokbZ Qk;j djrs gq, Hkkx x;sA rks fy;kdr vyh] eqLrkd o v;wc us ges ?kk;y voLFkk esa v;wc ds VªsDVj esa Mky dj lknd okyh ys x, o lknd okyh ls ,d thi esa ge rhuksa HkkbZ dks ysdj lwjrx< bykt ds fy;s jokuk gq, rks FkksMh nwj pyus ij esjk cM+k HkkbZ eksgEen cD'k @ dkdk xksyh;ks dh pksVks ls [kRe gks x;kA eq>s o esjs 4 HkkbZ uwjlean dks bykt gsrq ljdkjh vLirky lwjrx< esa ykdj HkrhZ djok fn;kA mijksDr ehrkflag oxSjk us ,d jk;
gksdj esjs cMs+ HkkbZ eksgEen cD'k @ dkdk o uwj lean o esjs dks tku ls ekjus dh uh;r ls fiLrkSy ls Qk;j dj pksVs igqapkbZA ftlls esjs cMk HkkbZ eksgEen cD'k @ dkdk dh e`R;q gks xbZA ge nksuks HkkbZ xEHkhj :i ls ?kk;y gq, gSA esjk cMk HkkbZ eksgEen cD'k @ dkdk dh mez djhc 35 lky gS ftlds lkeus Nkrh ij Qk;j yxs gSA c;ku nsrk gWaw dk;Zokgh dh tkosA v-fu- 'kjQwnhu @ eks0 lQh dk;Zokgh iqfyl mijksDr ipkZ C;ku Jh 'kjQwnhu @ eks0 lQh ds cksys vuqlkj 'kCn c 'kCn fy[ks tkdj i<dj lquk;s lqu le> lgh eku viuk vaxqBk fu'kku vafdr fd;kA et:c ds tkfgjk esa vkbZ pksVks dk utjh eqykfgtk fd;k x;k rks nkghus iSj ds fxV~Vk ls ysdj lkFky rd lQsn iV~Vh ca/kh gqbZ gSA etewu ipkZ C;ku o eqykfgtk tjckr ls tqeZ /kkjk 302] 307] 341] 147] 148] 149 IPC ok 27 vkElZ Act dk ?kfVr gksuk ik;k tkrk gSA ewy ipkZ C;ku okilh Fkkuk okLrs dk;eh FIR Jheku SHO lkc ds is'k gksxsA LTI 'kjQwnhu @ eks0 lQh Sd guqeku flag ASI PS lwjrx< dSEi jk0 fp0 lwjrx< is'k fd;sA ftl ij FIR ua- 564@2004 c tqeZ mijksDr esa tk¡p dj udy FIR okLrs vuqla/kku cnLr dj Jh tldj.k flag ua- 784 dks Jheku SHO lk0 dks fHktokbZ tk jgh gS ,l- vkj- tkjh dh xbZA ,lMh@& ,,lvkbZ ih,l lqjrx< dSEi jk0ph0 lqjrx<^^
3. During the trial, charges were framed and accused Deshu Singh alias Desharaj Singh, Mehtab Singh, Natha Singh and Mita Singh alias Gurmeet Singh were charged for the offences under Sections 147, 148, 341, 307, 302 read with Section 149 I.P.C. and Section 27 of the Arms Act, accused Mangal Singh, Surjeet Singh, Resham Singh and Ranjeet Singh were charged under Section 147,148, 341, 307, 302 read with Section 149 I.P.C. The prosecution produced fifteen witnesses and sixty eight documents were got exhibited. 5
4. Heard the submissions argued by the counsels for both the sides.
While advancing arguments, learned counsel for the appellants relying upon the following precedents;
(i) (2014)-5 SSC 744 - State of Rajasthan Vs. Manoj Kumar,
(ii) 2007 Crl J SC 874 - Navin Chandra Vs. State of Uttaranchal,
(iii) JT 2009 (5) SC page 1 - Balkar Singh Vs. State of Uttrakhand,
(iv) 2010(2) SCC 333 - Darshan Singh Vs. State of Rajasthan,
(v) 2015(3) SCC 93 - Ahmed Shah & Anr. Vs. State of Rajasthan has contended that learned trial court has committed error and has erroneously passed the impugned judgment. There are grave contradictions in the evidence of the prosecution as to from which side assailants approached, referring to the spot map, learned counsel has pointed out that actually the site of the incident is situated near and in front of the house of the accused persons, so apparently, the complainant party had come there, fully equipped with weapons to attack the appellant party, hence the appellants have also sustained injuries, which has not been explained by the prosecution, but ignoring all these facts, learned trial court held the appellants as guilty, which is totally wrong. The alleged incident belong to broad day light in a public place, but the prosecution has not produced any 6 independent witness and alleged day of rotation of obtainment of water is also wrong. The complainant side was aggressor and the prosecution has not come with clear hands and genesis of the occurrence has also not properly been explained and even the medical evidence is not corroborating the injuries and story of the prosecution is tainted with falsehood, which is why four named accused have been acquitted. Learned counsel has further argued that the alleged proximate distance of firing, must have caused blackening, which is absent and this aspect is enough to disbelieve the story of the prosecution, but true version has been explained by the accused persons under their statements recorded under Section of 313 of Cr.P.C. All the recovery witnesses are interested and the alleged recovery is also fake, which has been shown in different days, referring medical jurist Modi, learned counsel has contended that gun shot blackening occurs from a distance of 3 ft and not above, so the alleged distance of, so called, firing is improbable, and entire story of the prosecution is full of inconsistency and the complainant side was aggressive party, so the aspect of private defence must have been considered by the lower court and in no way the findings of the learned trial court are sustainable, so the accused-appellants be 7 acquitted after setting aside the findings of learned trial court.
Per contra, learned Public Prosecutor has vehemently argued that there is no such flaw in the findings of the learned trial court and the case of the prosecution is based on testimony of eye witnesses, who have also sustained injuries during the fight and because of previous rivalry and verbal altercations, the accused- appellants dauntfully came, equipped with deadly weapons and fire arms and caused massive attack upon the complainant party by killing deceased Mohd. Bux and injuring others with premeditated murder plan. The plea of self-defence and contention to this effect is not sustainable because the appellants-accused persons were assailants and aggressors, who attacked fully equipped with dangerous weapons and killed deceased and injured two of his brothers, so question of private defence does not arise at all and no such safeguard is available to the accused-appellants. There is no contradiction or any weakness in the evidence of the prosecution. Learned trial court has properly appreciated entire evidence and has passed unimpeachable correct judgment, there is no force in the appeal and the same may be dismissed.
5. Perusal of the FIR indicates that Sarfuddin @ Shafi and Noor Ahmed, both brothers are eye 8 witnesses as well as injured of the incident, one of their brother Mohammad Bux was killed, is deceased, who after sustaining pellet injuries, succumbed to the injuries, Ex.P1 written F.I.R. has also been lodged by complainant Sarfuddin @ Shafi.
6. Evaluation and scrutiny of the evidence reveals as PW.1 Sarfuddin @ Shafi has explicitly narrated the incident and has said that about ten months back and one day ahead of the occurrence, he was returning from his field to his Dhani. Mangal Singh, Mita Singh and Bittu Singh met him on the way, they abused and scuffled with him and next day verbal altercations took place with his brother Mohammad Bux during bus travel, he has further said that he had been to the field of Surendra Ranka, in evening at five, his brother Mohammad Bux and Noor Ahmed came to him and asked him whether any dispute took place with those fellows, by informing that they had fought with him during bus travel today, he has further said that then all the three left for Dhani from the field, Ayub Khan met on the way and asked where were they going after that they came near the Well (Kui), which was situated near the house of Bikar Singh and shop of Kaka Singh, where Mangal Singh, Phalki, Bittu, Ranjeet, Natha, Meeta, Deshu and Mehtab warned "cgupksn bu eqlyksa dks NksM+uk ugha gS", Mangal Singh 9 was having a sword, Ranjeet was having Barcha. Bittu and Ranjeet were equipped with Gandaasi and Natha Singh, Meeta, Deshu and Mehtab Singh were having pistols and they started firing, soon as they came, Natha Singh fired two shots, which inflicted upon and hit his brother Mohammad Bux, he has further said that scaringly they retreated back, then Meeta Singh fired upon his brother Noor Samad, then Kesu, fired which hit him on the legs, after that Mehtab Singh fired upon Noor Samad with an intention to kill him, when his brother Mohammad Bux was retreating he felt-down near the house of Ranjeet Meghwal, he has further said that Liyakat Ali, Mushtak Ali and Ayub Khan came, in the meanwhile, then after hurling abuses, all went inside the house of Mangal Singh. Ayub brought tractor there and took his brother Mohammad Bux to Sodeki and after hiring a jeep from there, they were rushing to Suratgarh and hardly would have fathomed 10 kms, his brother Mohammad Bux died. We were taken to Suratgarh Hospital, where Noor Samad and he were admitted, he has further said that police had recorded his statements there, which is Ex.P.1, which contains his thumb impression, he has also said that police had recorded his statements and seized his blood stained pant vide Ex.P.2 which has got his thumb impression, elaborately this 10 witness has been cross examined and in his cross examination, he has said that all the three brothers were treading together and they were intending to move towards south from the place where the incident occurred and were about to take turn there, then the incident occurred, while replying two suggestions put to him, he has replied that "its wrong to say that prior one day ahead of the killing, no scuffle would have been taken with him and on the day of incident they would have fired in front of the house of the accused and it has also been denied that they were injured and Mohammad Bux was hit, while they allegedly were loading and pistol was caught hold of by the accused persons and verbatim has said that :-
";g dguk xyr gS fd igyk Qk;j ugha yxus ij yksM djrs le; eqyfteku us fiLrkSy idM+ fy;k gks vkSj Nhuk NiVh esa Qk;j esjs o eksgEen cD'k ds yxk gksA"
7. PW.5 Noor Samand @ Fadi is another injured and brother of the deceased Mohammad Bux. He has almost reiterated the same kind of narration, since he has said that he, Mohammad Bux and Shafi, all the three brothers were coming to home. Ayub met them, who was on his shop. They informed him that they were going to their home. Soon as they reached near the house of Bikar Singh, these eight people were standing 11 there. He has further said that Natha Singh, Mehtab Singh, Deshu, Meeta were having pistols, Mangal Singh was having a sword, Mithoo and Ranjeet were equipped with Gandasi and Falku was having a Barcha, all abused them and asked to kill them. Natha Singh shot two fires, which hit his brother Mohammad Bux, Meeta Singh shot a fire, which hit him on his legs and Deshu fired at his brother Shafi, he has also said that Mehtab Singh also fired, which hit to him as well as to his brother, they retreated and has further said that his brother Mohammad Bux felt down in front of the house of Ranjeet, they too were constraint to sit because of injuries. Meanwhile, Liyakat, Mustak, Ayub came there, who warned the accused, then after shoting air fires they went inside the house of Mangal Singh, they came to Sadarkala by Ayub's tractor and went for Suratgarh through jeep, just going ten kms ahead his brother Mohammad Bux succumbed to his injuries and they were admitted in the hospital there, where his injuries were examined and police recorded his statements, his blood stained trouser (pant) was seized by police vide Ex.P.10, which bears his signature as A to B, in his cross examination, he has clarified that their residence is also situated in their field and has verbatim explained that :- 12
"eSaus tks vnkyr esa c;ku fn, gSa fd ge [ksr ls <k.kh tkrs oDr gekjs lkFk ?kVuk gksuk o izn'kZ Mh 2 dk fgLlk b ls ,Q nksuksa gh lgh gSA D;ksafd <k.kh gekjh [ksr esa gh gSA "
He has also said that Mangal Singh, Ranjeet Singh and Bittu did not inflict any injury, but they were hurling abuses and when they felt down they did not come near, he has also said that doctor extricated pellets from his body and there are scars of extrication of pellets. He too has been put certain suggestions to which he has specifically replied as under :-
";g dguk xyr gS fd ge rhuksa HkkbZ fiLrkSy ysdj igys okys fnu dh yM+kbZ dk cnyk ysus ds fy, eaxyflag oxSjk ds ?kj ds vkxs x, gksa vkSj geus mudks tku ls ekjus ds fy, fiLrkSy ls esjs HkkbZ eksgEen oD'k us Qk;j fd;k gksA ;g dguk Hkh xyr gS fd igyk Qk;j ugha yxus ls nwljk Qk;j djus ds nkSjku eqyfteku us ,dne vkdj fiLrkSy idM+ fy;k gksA ;g dguk Hkh xyr gS fd ml Nhuk >iVh esa fiLrkSy esjs HkkbZ eksgEen cD'k ds gkFk esa py x;k ftlls esjs HkkbZ eksgEen cD'k ds gkFk o dU/ks ij NjsZ yxs gksa o ogh NjsZ esjs ikl [kM+s ds yxs gksaA ;g dguk xyr gS fd ljQw esjs HkkbZ ds dksbZ pksV ugha yxh gksA ;g dguk Hkh xyr gS fd geus eqdnek cukus dh xjt ls ljQw ds Lo;a us NjsZ mlds 'kjhj esa xqnok;s gksaA"
8. PW.11 Dr. Manoj Agarwal Medical Officer of PBM Hospital, Bikaner has corroborated the injuries examined and sustained by the injured and he has said that on 17/09/2004, he was posted as Medical Officer in Government Hospital, Suratgarh where he examined Sarfuddin @ Shafi and following injuries were found on his body;
1. Multiple gunshot wound 2 mm to 3 mm x 2mm each at whole of right leg 13
2. 5 gun shot wound 3 mm x 2 mm each right thigh antero lateral by
3. 2 Gunshot wound 3m x 2mm each posterior lateral part of right thigh
4.lacerated wound 2.5cm x 2 cm x m.d. lower 2/3 parts of right leg and has said that all the injuries were caused by fire-arm and blackening was there near the injuries and the I.R. is Ex.P.26 which bears his signatures, he has further said that x-ray of Sarfudden is Ex.P.29 and Ex.30 and x-ray plate cover is Ex.P.28, which bears his signatures and report prepared on the basis of x-ray, he has also said that on the basis of x-ray, the injuries were found of simple in nature, but x-ray was showing multiple radio- opaque pellets inside the body, he has also said that on that day, he examined another injured Noor Samad and explaining his five injuries found on his body, he has said that they were :-
1. Multiple gunshot wound over upper 2/3 part of right leg 2 to 3 mm x 2 mm each.
2. Multiple gunshot wound 2 mm to 3 mm x 2 mm each whole of left leg.
3. 5 Gun shot wound 3 mm x 2 mm each right thigh
4. 3 gunshot wound 3 mm x 2 mm left thigh 5 4 gunshot wound 3mm x 2 mm left knee.
and has said that the injuries were caused by fire arms. The duration of injuries has been said to be of twenty four hours and has explained that the I.R. is Ex.P.31, x- ray is P.36, which bears his signatures. He has further said that according to Ex.P.31, all the injuries were 14 simple, but x-ray plates are showing multiple radio- opaque pellets inside the body, in his cross examination, he has said that x-ray was done in his observation by Subhash Godela, because he was not a Radiologist, in the end, doctor has denied a suggestion that "wittingly he would not have shown scroaching and tattooing".
PW.4 Dr. Jayant Kumar Vyas conducting postmortem on the body of the deceased Mohammad Bux has said that on 18/9/2004 he had conducted the autopsy, on the body of the deceased and has said that he had found following injuries on the body :-
"¼1½ Multiple gun shot wounds 4x2 mm ck;sa gkFk dh gFksyh o Åaxfy;ksa ij ik;s vksj bl pksV esa gkFk ls peM+h ds uhps ls dqN NjsZ fudy x;sA ¼2½ pksV la 2 Hkh Gun shot ls dkfjr pkj ?kko Fks tks e`rd ds psgjs ij gksaB o xky o <ksM+h ij 5x3 mm ds ?kko FksA tks ck;h rjQ FksA ¼3½ ck;s da/ks ij Gun shot ?kko Fkk tks 2x4 mm dk FkkA ¼4½ Multiple gun shot ?kko ck;h rjQ xnZu ij Fks ftudk vkdkj 5x3 mm FkkA bldks phjus ij peM+h ds fcYdqy uhps jDr L=ko ik;k x;kA eSuas 'ko ijh{k.k }kjk e`rd 'kjhj ls Thorasic cavity ls lung o gkFk ls NjsZ fudkys o lhy dj SHO dks fn;saA gkFk ls nks NjsZ] ,d xnZu ls o 5 Thorasic cavity ls fudkys FksA mDr lkjh pksVs e`R;q iwoZ dkfjr Fkh o izd`fr ds lkekU; vuqØe esa e`R;q dkfjr djus ds fy;s i;kZIr Fkha esjh jk; esa e`R;q dk dkj.k Hemorrhagic Shock tks fd ck;s QsQM+s ij Gun shot ls dkfjr Multiple ?kko ls iSnk gqvk Fkk] ls mldh e`R;q gq;hA 'ko ijh{k.k eSus 8:30 AM ij fd;k FkkA iksLVekVZe fjiksVZ esjh dyeh gS tks Exp.11 gS ftl ij A ls B esjs gLrk{kj gSA"
9. PW.8 Liyakat Ali is a witness, whose name is disclosed in the FIR that Liyakat, Mustak, Ayub came there, while the incident took place, Liyakat Ali has 15 reiterated the similar kind of utterance and has said that he is acquainted with Mohammad Bux and with his brother, the incidence belongs to about quarter past one year, when clamour came, he was sitting in his house, Mustak was with him, he has further said that they rushed towards that side and heard a fire sound midway and going ahead another sound of fire was heard. Ayub had been there before they reached and has further said that when they reached there, Deshu fired, which hit upon Sarfu, another fire was shot by Mehtab Singh, which hit both to Noor Samad and Sarfu and afterwords Meeta Singh, Deshu, Mehtab went inside the house shoting fires, bittoo, Falki, Mangal Singh, Ranjeet were also with them. He has further said that bittoo, Falki, Ranjeet were having Gandasi, Mangal Singh was having sword, Falki was equipped with Barchi and afterwords Ayub brought his tractor and took Mohammad Bux, Noor Ahmed and Sarfu to Sodeki and a jeep was hired from there for Suratgarh. 8 to 10 kms of run from there, Mohammad Bux died. He has further said that they admitted, other injured in Suratgarh. Mohammad Bux died because of infliction of two fires. His statements were recorded by police and spot map they drawn, which is Ex.P.9, which bears his signature at 'x'-spot, in cross- examination, he has said that when they were at 16 residence, a cry "ekj fn;k, ekj fn;k" came there and when they reached at the point of occurrence, all three brothers were there, two were standing and one was sat, he has explained that his house is situated 175 to 200 ft. away from the house of Ranjeet Meghwal and has also said that there is a short-cut to the place of occurrence from his residence. He has also said that they were 20 to 25 ft. away from the injured persons, he has also explained that after their arrival, Sarfu was shot at and he had witnessed the accused person from 40 to 45 ft's distance and did not observe loading of the pistols but seen them firing. He has also said that he had put his thumb impression on the spot map. Ex.P.9, "and spot map confirms this aspect because there is a thumb impression of Liyakat Ali", He has also said that he had heard sound of four fires.
10. PW.7 Mohammad Mustak is also an eye witness of the incident, his name has also occurred in the recital of the FIR and this witness has also narrated almost identical to PW.8 Liyakat, he too has said that after hearing cry and clamour, they rushed towards there, near the house of Ranjeet and found Mohammad Bux wounded of bullet injury, then Deshu fired upon, which hit upon Sarfu, subsequently Mehtab 17 Singh also fired, which injured Noor Samad and Sarfu, Mitta Singh, Deshu, Bittu, Mehtab, Falsi, Ranjeet, Nata were there. Natha Singh, Deshu, Mehtab Singh and Mita Singh were holding pistols in their hands respectively, they raised alarm, then the accused went inside the house of Mangal Singh, airing fires. Kake was taken to Sadeki by tractor and they took a jeep from there and went to Suratgarh Hospital, but after completing five kms, Mohammad Bux succumbed to his injuries and they reached in Suratgarh Hospital, in his cross examination he too has said that when he was sitting in the house of the Liyakat, then he had heard a sound of fire there and after reaching towards the spot, sound of two fires was heard, they reached at the point of occurrence, Kaka @ Mohammad Bux was lying in front of the house of Ranjeet Meghwal, his brothers were standing nearby, he has also said that accused were standing in front of the house of Buta Singh. "It is pertinent to observe that in Ex.P.9, the spot map, the house of Buta Singh is depicted by digit nine and just yonder to it, house of Ranjeet Meghwal is shown by digit 15.
He has also said that they were 20 to 25 ft. away from the place from where accused were shoting fires, he has also said that four persons were involved in firing and after his reach, two fires were shot, he has 18 also said that Ayub and Liyakat were there at the place of occurrence besides him and has narrated that incident belongs to thirteen to fourteen months back.
11. The scrutiny of evidence of both these eye witnesses does not disclose any kind of disparity and almost similar kind of incident, which they have witnessed has been narrated by both the injured Sarfuddin @ Shafi and Noor Samad and they have also disclosed almost same kind of incident, which makes the utterance and sequence of the incident creditworthy.
12. PW.2. Noor Ahmed is a witness of Ex.P.3 Fard dead body and Ex.P.4 Panchayatnama of dead body of deceased Mohammad Bux and Ex.P.2 seizure memo of wearings of Mohammad Bux and Sarfuddin @ Shafi. Ex.P.6 the blood stained soil and Ex.P.7 pieces of 'cartridge' and of 'Wad', ratifying all these exhibits, he has further said that Ex.P.8 is the consignment memo of dead body of Kaka and Ex.P.9 is spot map and Ex.P.10 is seizure of wearings of Noor Samad which bears his signature.
PW.3 Surendra has not uttered anything important.
13. PW.6 Sultan is a recovery witness before whom recoveries of weapons have been made and he has 19 corroborated the recovery memos. Ex.P.13 to Ex.P19 and has specifically said that "
"esjs lkeus egrkc flag us ,d nslh 12 cksj fiLrkSy cjken djok;k FkkA ftldh iqfyl okyksa us QnZ cjkenxh rS;kj dh tks izn'kZ ih 12 gSA ftldh fy[kki<+h Hkh ekSdk ij dh Fkh ftl ij , ls ch esjs gLrk{kj gSaA esjs lkeus iqfyl dks eqyfte ferk flag mQZ xqjehr flag us ,d nslh 12 cksj ifLrkSy cjken djok;k Fkk ftldh QnZ cjkenxh izn'kZ ih 13 iqfyl okyksa us ekSdk ij rS;kj dh Fkh ftl ij , ls ch esjs gLrk{kj gSaA eqyfte lqjthr flag mQZ Qydh us ,d cjNk cjken djk;k Fkk ftldh QnZ iqfyl okyksa us ekSdk ij rS;kj dh Fkh tks izn'kZ ih 14 gS ftl ij , ls ch esjs gLrk{kj gSaA bu rhuksa cjkenxh;ksa dk uD'kk ekSdk izn'kZ ih 15 iqfyl us ekSdk ij rS;kj fd;k Fkk tks esjs lkeus cuk;k Fkk ftl ij , ls ch esjs gLrk{kj gSaA esjs lkeus iqfyl okyksa dks uRFkk flag us 12 cksj fiLrkSy cjken djok;k Fkk ftldh QnZ cjkenxh iqfyl okyksa us rS;kj dh Fkh tks izn'kZ ih 16 gS ftl ij , ls ch esjs gLrk{kj gSaA ,d fiLrkSy nslh 12 cksj eqyfte nslw flag us cjken djok;k Fkk ftldh QnZ cjkenxh izn'kZ ih 17 iqfyl okyksa us ekSdk ij rS;kj dh Fkh ftl ij , ls ch esjs gLrk{kj gSaA ,d x.Mklh eqyfte fcV~Vw mQZ js'ke flag us cjken djkbZ FkhA QnZ cjkenxh izn'kZ ih 18 iqfyl okyksa us ekSdk ij rS;kj dh Fkh ftl ij , ls ch esjs gLrk{kj gSaA uD'kk ekSdk cjkenxh LFky eqyfteku uRFkkflag] nslw] fcV~Vw dk cuk;k Fkk ftl ij , ls ch esjs gLrk{kj gSa] izn'kZ ih 19 gSA tks iqfyl okyksa us ekSdk ij cuk;k FkkA"
in his cross examination, he has said that deceased Mohammad Bux was his Mama and the pistol was recovered from the house of Mangal Singh and from the house of Natha Singh, he has further said that he had observed the garage of Mangal Singh, it was 6 ft. of width and 12 ft. in length. At the time of recovery, Gurnaam Singh and Policemen were with him and that weapon was neither rusted nor was having sign of sand, but was clear and candid. Pistol was sealed in a white envelope, he has further said that after completion of recovery process from the house of Natha Singh, they had gone to the house of Mehtab Singh and had been to 20 the house of Mehtab at three SPD and while visited at the house of Mangal Singh, there were three to four women in his house, who went inside.
14. PW.14 Narendra Kumar Sharma is a C.I. of thana, Suratgarh and he has said that on getting information from Noor Mohammad Lambardar, he visited at the place of occurrence, where FC Jaskaran Singh presented him Ex.P.1 Parchabayan, on the basis of which FIR was lodged and he started investigation, he has ratified Ex.P.2 to Ex.P.6, Ex.P.8 to Ex.P.19, Ex.P.23 to Ex.27, Ex.P.36 to Ex.P.44, Ex.P.47 to Ex.P.57 and proving all these documents, he has evidently narrated the sequence and chronology of the investigation undertaken. He has also explained the recoveries of weapons, respectively made on instance and on the information of respective accused persons, during the course of examination he has said that article 1 is pellets and article 2 pistol was recovered from Mehtab Singh and pistol recovered from accused Natha Singh has been said to be article 4 and another pistol recovered from accused Deshu Singh @ Deshraj Singh is said to be article 5.
PW.9 Anand Kumar who was a S.I. at Police Station, Suratgarh, has said that he was posted at Police Station, Suratgarh on 17/09/2004 and was informed by Noor Mohammad Lambardar at about 7.15 21 p.m. about shooting down and killing of Mohammad Bux and the same was entered in Rojnamcha at serial No. 1212 and he proceeded to the spot to verify after handing over charge to S.I., which is entered in Ex.P.20 on the same day at serial No.1214, entry relating to admission of Noor Samad injured of fire arm and its entry is also mentioned in Ex.P.21, he has said that on the basis of Parchabayan FIR Ex.P.22 was registered and Parchabayan is Ex.P.1, in his cross examination, he has also said that there was no mentioning of injuries of Noor Samad in the proceedings, but this was mentioned in Parchabayan.
PW.12 Hanuman Singh, ASI, PS, Suratgarh has said that he was posted at thana
Suratgarh on 17/09/2004 as an ASI and after getting information of hospital admission of injured Noor Samad, he went to the hospital after entering it in Rojnamcha vide Ex.P.21, but could not record his statement because Noor Samad was unconscious. Injured Sarfuddin was also found there admitted as an injured and his statements were recorded per verbatim and its Parchabayan is Ex.P.1, which bears his signature from G to H. He has further said that the Parchabayan Ex.P.1 was further submitted at the Police Station, on which thana Incharge directed to register FIR and FIR was lodged accordingly, 22 which is Ex.P.22, which bears his signature from C to D, in his cross examination, he has clarified that doctor opined that Noor Samad was unconscious and was unfit to tender statements, so he did not inspect his injuries, so not able to explain the injuries sustained by him.
15. PW.10 Mool Singh is a police constable who has deposited the seized packets in FSL and he has said that on 25/10/2004, he was posted as FC at thana Suratgarh and was given five packets for depositing in FSL, Jodhpur and six packets for Jaipur and these were consigned by Malkhana Incharge, Hukum Singh and after getting a forwarding letter issued from SP Office, Sri Ganganagar, he deposited five packets A, B, C, D and F vide receipt No.319/04 dated 26/10/2004 in FSL, Jodhpur on 26/10/2004 and rest packets could not be deposited and remained intact and sealed during his possession and forwarding letter of S.P. Ganganagar is Ex.P.23 and deposit receipt is Ex.P.24, another letter of SP Office is Ex.P.25.
16. PW.13 Ram Singh is also a police constable and he has said that on 8/11/2004, he was posted at Police Station, Suratgarh and he delivered six packets to Hukum Chand for getting a letter from SP Ganganagar's office and after getting that letter, he brought back the same at 7.15 p.m. and deposited with 23 Malkhana, and on 9/11/2004, these samples E, G, H, I, J and A1 were rendered to him by Hukum Chand Malkhana Incharge for depositing in FSL, Jaipur which he deposited in FSL, Jaipur, on 10/11/2004 and after getting receipt thereof, he delivered it to Malkhana Incharge on 12/11/2004, he has further said that during the period of his possession, the samples were intact and remained sealed, nothing abnormal has emerged from the cross examination of this witness.
PW.15 Hukam Chand is also a police constable rendering samples for deposit to cops and he has said that on 25/10/2004, he was Malkhana incharge of thana Suratgarh and had given five packets A, B, C, D, F to Mool Chand for deposit in FSL, which were deposited vide receipt No.319 on 26/10/2004, then a packet E F S L was given to Ram Singh on 9/11/2004, which was deposited vide receipt No.10859 on 10/11/2004. He has also corroborated Ex.P.64 to Ex.P.68 pertaining to deposit of samples.
17. Defence has also produced one witness as DW.1 Chinda Singh, surprisingly this witness has called deceased Mohammad Bux from the name of Kaka Singh, whereas deceased was not Kaka Singh, but his pet name was 'Kaka' and he was Mohammad Bux, he has said that he saw brothers of Kaka Singh, shoting fires and Kaka 24 Singh was going with them, they asked Kaka Singh not to go ahead and come back, when Kaka Singh turned back, he was hit by a bullet of his own men and the bullet hit him in front of the house of Bikar Singh, after that Kaka Singh's brother carried him. The defence version of the accused persons as stated and opted hereinbefore is totally converse to the version put forth in explanations under Section 313 of CrPC because Deshu Singh and Mita Singh have allegedly elucidated, while examined under Section 313 of CrPC that the complainant party had come to their residence, equipped with guns and accused party escaped from the first fire, when second fire was being shot, they caught hold of the pistol of Mohammad Bux and in scuffle, it went off causing injuries to Mohammad Bux at his shoulder and hands, but both the versions put forth by the defence are mismatching, Chinda Singh has not narrated alleged fact of scuffle and snatching of weapon, whereas explanation tendered narrates otherwise, so, defence has brought forth theory of self defence on unacceptable flimsy basis, which has rather tainted their defence and beleaguered of being trustworthy, whatever incongruous inconsistency observed in the testimony, is of trifle in nature and no way makes story of the prosecution incredulous because it being natural. 25
Occurrence of verbal exchanges and incidence of trifle beating, one day prior to the incident shows that the accused party premeditatedly assaulted upon the complainant-side, fully equipped with deadly weapons and killed one of the brother and injured two others, which fortifies a sound perception and existence of "motive", which is why, the precedents sought support of, do not help the defence.
18. It is important to mention that the accused party has also admitted happening of dispute with the complainant-side, one day retro to the occurrence and their version, as raised in defence that allegedly when second fire was attempted by Mohammad Bux, his weapon was tried to be caught hold of and in that process of scuffle, the fire went off, also makes it evident that their presence was there at the time of incident.
19. The F.I.R. has been lodged by Sarfudden who was present at the time of occurrence and sustained bullet injuries, apart from him, his brother Noor Samand was also injured in the incident by bullet injuries, both are injured as well as eye witnesses of the occurrence, who have categorically stated involvement of the accused party by naming their role in the incident and their injuries are well corroborated by the medical evidence as adduced by Dr. Manoj Agarwal and Doctor Jayant Kumar Vyas as deliberated above, as well.
26
20. Eye witnesses Liyakat, Mustak have also made similar kind of narration with respect to the incident and there is a candid version that that accused party injured both Sarfudden and Noor Samand and deceased Mohammad Bux, who later succumbed to his injuries, the injuries on the body of the deceased have also been well explained and corroborated by medical evidence.
21. Guns have been recovered from Natha Singh, Mita Singh, Mehtab Singh and Deshu @ Deshraj on their information provided under Section 27 of Evidence Act on their instance, respectively, which is well explained by Ex.P.16, Ex.P.13, Ex.P.12 and Ex.P.17, as such, Recovery of weapons is also well established and proved beyond reasonable doubt and this aspect has been properly elucidated by recovery witness PW.6 Sultan. FSL report has also corroborated detection of human blood on A1 Pant, A2 Shirt, B3 Pant, C2 Blood Smeared Soil and F6 Pant. Evidence as tendered by both the injured, eye witnesses fortifies the occurrence, which is well corroborated by medical evidence, nothing is there to establish that the complainant party was aggressor, sheer say is not suffice to rebut the version as put forth by the defence, evidence of DW.1 Chinda Singh and explanation tendered under Section 313 rather makes the theory of private defence unbelievable and flimsy, 27 so its clear that prosecution has completely succeeded in establishing its case beyond any reasonable doubt, hence, it is evident that the case of the prosecution is proved on the basis of reliable ocular evidence.
22. 14. In Sevaka Perumal v. State of T.N. (1991) 3 SC 471, the Hon'ble Supreme Court has cautioned :-
"Undue sympathy to impose inadequate sentence would do more harm to the justice (delivery) system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the Courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
So, we are in absolute agreement with the trial court with its finding and in view of the above discussions, we do not find any wrong with the conviction and sentence recorded by the trial Court.
Therefore, the appeal being bereft of substance, is hereby dismissed.
G.R. MOOLCHANDANI], J. [GOPAL KRISHAN VYAS], J. babulal