Rajasthan High Court - Jaipur
State Of Rajasthan vs State Of U.P. : Air 2010 Sc 2254 on 17 March, 2015
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN BENCH AT JAIPUR
J U D G M E N T
D.B. CRIMINAL APPEAL No.1127/2006.
Khushi Ram & Ors.
Vs.
State of Rajasthan
D.B. Criminal Appeal u/S.374 Cr.P.C. against the judgment dated 19/10/2006 passed by Additional Sessions Judge (Fast Track) Karauli in Sessions Case No.61/2006 whereby, the accused-appellants have been convicted & sentenced for offence u/Ss.302 & 302/34 IPC read with Sections 3/25 & 4/25 of the Arms Act.
Date of Judgment :- March 17, 2015.
Q U O R U M
HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
HON'BLE MRS.JUSTICE NISHA GUPTA
Shri Suresh Sahni for the accused-appellants.
Shri Aladeen Khan, Public Prosecutor for the State.
Shri Sriram Yadav for the complainant.
****
BY THE COURT (Per Nisha Gupta J.):-
This appeal has been filed on behalf of the accused-appellants challenging the impugned-judgment dated 19/10/2006 passed by Additional Sessions Judge (Fast Track) Karauli in Sessions Case No.61/2006 whereby, the accused-appellants have been convicted and sentenced, as under:-
APPELLANT NO.1-KHUSHI RAM:-
for offence u/S.302 IPC:- Life Imprisonment with a fine of Rs.5,000/- and in default of payment thereof, to further undergo 6 months simple imprisonment.
for offence u/S.3/25 of Arms Act:- Simple Imprisonment for two years with a fine of Rs.1,000/- and in default of payment thereof, to further undergo 2 months simple imprisonment.
APPELLANT NO.2-ARUN SINGH:-
for offence u/S.302 IPC:- Life Imprisonment with a fine of Rs.5,000/- and in default of payment thereof, to further undergo 6 months simple imprisonment.
for offence u/S.4/25 of Arms Act:- Simple Imprisonment for two years with a fine of Rs.1,000/- and in default of payment thereof, to further undergo 2 months simple imprisonment.
APPELLANT NO.3-VARUN SINGH:-
for offence u/S.302/34 IPC:- Life Imprisonment with a fine of Rs.5,000/- and in default of payment thereof, to further undergo 6 months simple imprisonment.
for offence u/S.4/25 of Arms Act:- Simple Imprisonment for two years with a fine of Rs.1,000/- and in default of payment thereof, to further undergo 2 months simple imprisonment.
2) The case of the prosecution is that Hari Singh @Harkesh (PW3) has lodged the written report (Ex.P10) on 19/04/2005 with the contention that his uncle Nawab is running a liquor shop on contract. On 18/04/2005 at 11.00 p.m., he and Nawab have closed the shop and Nawab was about to start the motorcycle, Khushi Ram, Shivcharan, Arun, Varun, Kamal, Tara and Satto came there armed with Swords and Guns. Khushi Ram asked monthly amount from Nawab. He requested 2-4 days time as ongoing business was lean. Shivcharan and Arun fired on him. Khushi Ram snatched the keys of the shop and he inflicted sword blow on the neck of Nawab and others also gave beating to him. Nawab died on the spot. Hardev was also there at that time. On the written report (Ex.P.10), FIR No.304/2005 (Ex.P11) has been registered at Police Station Hindaun City.
3) After investigation, charge-sheet has been filed against the accused-appellants and the case was committed to the Court of Sessions and entrusted for trial to Additional Sessions Judge (Fast Track) Karauli.
4) The trial court framed the charge against accused-appellant No.1-Khushi Ram for offence u/S.302 in alternate 302/34 IPC and Section 3/25 of the Arms Act, against accused-appellant No.2-Arun Singh & accused-appellant No.3-Varun Singh for offence u/S.302 in alternate 302/34 IPC and Section 4/25 of the Arms Act but all denied the charges and claimed to be tried.
5) To support the case, the prosecution produced 13 witnesses from PW1 to PW13 and in documentary evidence, exhibited 39 documents from Ex.P1 to Ex.P39A. The accused-appellants were examined u/S.313 Cr.P.C. They denied the charges. In defence, the accused exhibited 9 documents from Ex.D1 to Ex.D9.
6) After conclusion of the trial, the present appellants have been convicted and sentenced in the manner as stated hereinabove. Hence, this appeal.
7) Contention of the learned counsel for the accused-appellants is that the trial court has not weighed the evidence in legal perspective. He has misread the evidence and mis-appreciated the evidence. There is no legal admissible evidence on record to connect the appellants with the crime. Recovery of weapons could not connect the appellants with the crime. The case rests on the testimony of Hari Singh @Harkesh (PW3) and Hardev (PW6). Both are concocted witnesses. They are not eye-witnesses. FIR has been registered after considerable delay with exaggerations as FIR has been lodged against seven persons, whereas the police have not charge-sheeted Kamal, Tara and Shivcharan, and Satto has died in the same incident. FIR does not contain the correct facts. Jamna to whom the incident has been narrated immediately has not been produced by the prosecution. Mohan Singh was the sales-man on the shop, who has been withheld and two other witnesses Damodar and Raghuveer, who are the eye-witnesses to the incident have also been withheld by the prosecution. Whole prosecution story is suspect. Satpal has died in the incident but his death has not been explained by the prosecution. Conduct of both the witnesses is very unnatural and hence, the appellants deserve acquittal.
8) Per contra, the contention of the learned Public Prosecutor as well as the learned counsel for the complainant is that the case mainly rests on the evidence of Hari Singh @Harkesh (PW3) and Hardev (PW6), who are natural witnesses as they are sales-men on the shop of Nawab and the ocular evidence has further been corroborated by the medical evidence. Hence, no interference is needed.
9) Heard learned counsel for the accused-appellants, learned Public Prosecutor for the State as well as learned counsel for the complainant and perused the impugned-judgment and original record of the case.
10) Hari Singh @Harkesh (PW3) is the star witness of the prosecution. He has stated that on 18/04/2005 at about 11 pm or quarter to 11 pm, he was on the shop of Nawab Singh as he is sales-man there. Nawab Singh and Hardev were also there. He was locking the shop, whereas Nawab Singh went and sat on the motorcycle. Hardev went outside the shop for urination; at that time, Khushi Ram, Arun, Varun, Shivcharan, Tara, Satpal and Kamal came on the motorcycle. Arun and Shivcharan were having guns and Khushi Ram, Varun, Tara, Satpal and Kamal were having swords and immediately after coming, Khushi Ram demanded Rs.10 lacs from his uncle Nawab and he took the key of the motorcycle. Arun fired at Nawab but Nawab pushed the barrel of gun and fire hit Satpal. Then, Khushi Ram inflicted sword blow on the neck of Nawab Singh. Varun inflicted sword blow on the head from behind. Second blow was given by Khushi Ram again on the neck of Nawab and Varun gave another blow on the head of Nawab. After receiving four blows, Nawab fell down along with motorcycle on the side of verandah. Thereafter, Kamal and others have also given beating to him. Then, Khushi Ram said that he has died. They took Satpal on the motorcycle. Then, he went near his uncle, tried to shake him and called him but he was dead. Hardev was also there. He has further stated that there was a dispute between Khushi Ram and Nawab as regards to the shop of one Babu Muddal and Khushi Ram was asking for Rs.10 lacs for the registry. After the incident, he went to his another chachas place Jamna at Mohan Nagar, Hindaun. Hardev also ran away from there. He narrated the incident to Jamna. Jamna collected some persons of the village and when they arrived at the scene of occurrence, the dead-body of Nawab was already shifted to the hospital at Hindaun. He and other persons also rushed to the hospital. There, he submitted written report (Ex.P10).
11) Hardev (PW6) is another eye-witness and his contention is that he is sales-man on the shop of Nawab. Harkesh is also sales-man and on the day of incident, Khushi Ram, Shivcharan, Arun, Varun, Tara, Kamal and Satto came there. Khushi Ram, Varun, Kamal, Tara and Satto were having swords and Shivcharan and Arun were having guns. Arun fired at Nawab but Nawab pushed the barrel of the gun and fire hit Satto. Khushi Ram inflicted sword blow on the neck of Nawab and Varun on the head of Nawab. Nawab fell down. Thereafter, Khushi Ram and Varun both have inflicted sword blows on him. Two other persons have also inflicted injuries. Thereafter, Khushi Ram told that Nawab has died and they lifted Satto and ran away. Witness has further stated that he also went to the plot of Jamna, where Hari Singh was already there. He was crying and informed about the incident to Jamna. Jamna instructed him to inform villagers and other family members, which he did. His further contention is that this incident occurred on the issue of a shop of Babu Muddal for which, Khushi Ram was asking sum of Rs.10 lacs from Nawab.
Thus, both the witnesses, who were present at the spot, have corroborated the prosecution on material facts. Contention of the learned counsel for the accused-appellants is that both the witnesses are not the eye-witnesses. They are fake witnesses but nothing has been brought on record, which could strengthen the arguments of the learned counsel for the accused-appellants. Hari Singh @Harkesh (PW3) has stated that he is sales-man on the shop and his certificate for the same has also been placed on record as Ex.P12, which clearly reveals that he was a sales-man on the shop of Nawab and identity card has also been issued to him by the Excise Inspector, Circle Hindaun City. It is true that no such identification card has been placed on record as regards to Hardev but an explanation has been given by both the witnesses that as per the rules of the Excise Department for servant, only one identity card could be issued.
12) The other contention of the learned counsel for the accused-appellants is that it is very unnatural that Hari Singh @Harkesh (PW3) has not reported the matter immediately to the police and instead of going to Nayi Mandi Police Chowki, which is only 500-700 meters away from the place of incident, he went to the place of Jamna, which was far away.
13) The court cannot become oblivious of the fact that Hari Singh @Harkesh (PW3) was only aged 21 years at the time of the occurrence. He saw number of persons, came there with deadly weapons. They fired and brutally inflicted injuries to Nawab. Nawab died on the spot and in this terrorized and shocked state of condition, it was not unnatural for a boy of 21 years, who has not much experience of life went straight to his other chachas place. It was not unnatural conduct of the witness and could not be seen with any suspicion.
14) The other contention of the learned counsel for the accused-appellants is that conduct of Jamna is also unnatural as after receiving the information of death of Nawab, he did not rush to the place of occurrence but he tried to collect the persons but Hari Singh @Harkesh (PW3) has clearly stated that for the safety, Jamna has collected other persons and the manner in which incident occurred clearly speaks that number of persons came there with deadly weapons and there was already dispute over the property between the two parties hence, it also could not be said to be unnatural conduct on the part of Hari Singh @Harkesh (PW3) or Jamna to collect some other persons for their safety.
15) The other contention of the learned counsel for the accused-appellants is that in written report (Ex.P.10), there is no specific narration of the fact that incident occurred on an issue of shop of Babu Muddal. Details of weapons carried by the assailants or their specific act or injuries inflicted to the deceased have not been narrated in the first information report. It has also not been mentioned that on how many motorcycles, accused persons have reached at the spot. A straight and genuine explanation has been given by Hari Singh @Harkesh (PW3) that he was in a state of terror. He was scared of the incident. He was crying and trembling hence, he has written only the broad facts of the incident in the first information report (Ex.P10) and otherwise, law is clear on this point that FIR is not the encyclopedia of the incident. The only object of FIR is to setting the criminal law in motion and need not contain the minute details as to how the offence has taken place. Reliance could be placed on the judgment of Supreme Court in Patai alias Krishna Kumar Vs. State of U.P. : AIR 2010 SC 2254.
16) Further contention of the learned counsel for the accused-appellants is that FIR is delayed one and after having advice, false FIR has been lodged and counsel for the appellants has drawn the attention of the court towards the statement of Madan Singh (PW11), investigation officer, who has stated that on persuasion, the FIR has been lodged. Facts of the case state that dead-body of Nawab Singh has been shifted to the hospital in absence of Hari Singh or other family members of Nawab and Hari Singh and other persons thereafter reached to the hospital. Dead-body of Satpal was also shifted from the place of occurrence and Hari Singh @Harkesh (PW3) has stated that he was also thinking of lodging the report and villagers and Jamna have also stated him so. When witness was in a scared position, it was not unnatural for him that with the space of time after composing himself, he has lodged the report and nothing has been brought on record, which suggests that FIR is false or unrealiable in its contents. Hence, in the facts of the present case, FIR could not be said to be delayed or concocted one.
17) The other contention of the learned counsel for the accused-appellants is that material witness Jamna to whom incident has been informed first has not been produced, which cast shadow on the genuineness of the prosecution and his further contention is that Mohan Singh was sales-man at the shop of Nawab and to corroborate this fact, sales-man certificate (Ex.D6) of Mohan Singh has been submitted. It is true that information has been first narrated to Jamna but as he has not seen the occurrence, non-examination of Jamna could not cast any shadow on the genuineness of the prosecution version and both the witnesses - Hari Singh @Harkesh (PW3) and Hardev (PW6) have categorically stated that Mohan Singh was not a sales-man on the shop of Nawab Singh. The defence has produced the document (Ex.D6) sales-man certificate of Mohan Singh but he has not produced Mohan Singh himself hence, the inference could be taken in favour of the prosecution that Mohan Singh was not sales-man at the shop of Nawab Singh. Apart from it, be that as may be the case that Mohan Singh was sales-man at the shop of Nawab but nothing has been brought on record, which could suggest that Mohan Singh was present at the time of the incident hence, non-examination of Mohan Singh as prosecution-witness is insignificant.
18) The further contention of the learned counsel for the accused-appellants is that the statement of Hardev (PW6) has been recorded after a considerable delay of ten days. Admittedly, incident is of 18/04/2005, whereas his statement has been recorded on 28/04/2005. Explanation has been given by Madan Singh (PW11) that after the death of Nawab Singh, in rituals and visit to Hardwar, time has been consumed and he has further stated that he has affixed a note of this nature in diary. Hardev (PW6) has also stated that he could contact the police only after six-seven days, which rules out possibility of concoction.
19) The further contention of the learned counsel for the accused-appellants is that Damodar and Raghuveer were eye-witnesses to the incident and they have not been examined by the prosecution. Madan Singh (PW11) has stated in his cross-examination that Damodar and Raghuveer were eye-witnesses to the incident and he has cited them in the list of witnesses but he has not stated anybody as eye-witness. He has cited them that they will corroborate their statement u/S.161 Cr.P.C. For the sake of argument, it can be presumed that Damodar and Raghuveer were also eye-witnesses but to prove the case against the appellants, the quality not the quantity matters and the prosecution has examined Hari Singh @Harkesh (PW3) and Hardev (PW6), who were the eye-witnesses to the incident; non-examination of Damodar and Raghuveer could not raise any doubt on the prosecution. The Public Prosecutor has submitted that both these witnesses have been cited in the list of eye-witnesses but the Prosecutor in his wisdom has opted not to examine them. Had they been the witnesses in favour of the appellants, they could be produced by the appellants themselves, which has not been done by the defence. Hence, non-production of Damodar and Raghuveer is also not fatal to the prosecution.
20) It has specifically been impressed upon by the learned counsel for the accused-appellants that on the day of incident, Satpal or Varun went to the liquor shop of Khushi Ram. They gave keys to Damodar. At that time, Nawab and others have attacked them and Satpal has died in the incident but prosecution has not explained the injuries suffered by Satpal. Prosecution has admitted the fact that Satpal also died in the incident and from the inception of investigation, statement of Hari Singh @Harkesh (PW3) and Hardev (PW6) is that Arun fired at Nawab but Nawab pushed the barrel of the gun and fire hit Satpal and accidently, Satpal died. Counsel for the appellants has drawn the attention of this Court towards the statement of Hari Singh @Harkesh (PW3), where he has denied the fact that Satpal has not been murdered in the incident. There is no substance in the contention as admittedly, prosecution-witness has accepted the fact that Satpal has died in the incident but at the same time, Hari Singh @Harkesh (PW3) has denied that he has been murdered as contention of the prosecution is that fire was aimed at Nawab and when barrel of the gun was pushed by Nawab, fire hit Satpal and Hari Singh @Harkesh (PW3) has rightly stated that Satpal has not been murdered in the incident. Counsel for the appellants has placed reliance on the judgment of Supreme Court in Lakshmi Singh & Ors. Vs. State of Bihar : AIR 1976 SC 2263 and submitted that non-explanation of injuries suffered by the person from the appellants side is fatal. The observation of the Apex Court given in Lakshmi Singh supra is being quoted hereunder:-
In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. AIR 1968 SC 1281 and AIR 1975 SC 1674, Rel. on. (Para 11) The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
There is no doubt about the law propounded in Lakshmi Singh supra but here in the present case, the prosecution from the inception has explained the manner in which Satpal has suffered injuries and died. Dr.Vinod Kumar Sharma (PW9) has also categorically stated that in the opinion of the doctor, the death of both, Satpal and Nawab could be caused in the same incident hence, the prosecution has not suppressed the genesis of the crime.
It has also been submitted that in the written report (Ex.P10), there is no narration of the fact that Satpal has also suffered any injury or he had died in the incident. Hari Singh @Harkesh (PW3) has categorically stated that he was trembling out of terror and he had made only broad description in the first information. Admittedly, Hari Singh @Harkesh (PW3) was only related to Nawab and so only concerned with the death of Nawab and in such a situation, non-mentioning of the fact of death of Satpal in the written report (Ex.P10), could not be treated fatal to the prosecution.
21) Hence, in view of above, Hari Singh @Harkesh (PW3) and Hardev (PW6) have fully corroborated the facts presented by the prosecution. They are natural and reliable witnesses and court below has rightly relied upon them.
22) In view of above, we are of the considered opinion that court below has rightly scanned the evidence submitted by the prosecution. There is no reason to disbelieve Hari Singh @Harkesh (PW3) and Hardev (PW6). We are in full agreement with the findings and conclusion of the trial court. No interference is needed.
Hence, the appeal is dismissed. Record be sent back to the court below forthwith.
(NISHA GUPTA), J. (KANWALJIT SINGH AHLUWALIA), J. Anil/100
All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum J