Rajasthan High Court - Jodhpur
Harpal Singh @ Pal Singh vs State on 31 August, 2022
Bench: Sandeep Mehta, Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Criminal Appeal No. 747/2016
Harpal Singh @ Pal Singh S/o Sukhmander Singh, by caste sikh,
Age 33 Years, R/o Ward No.07, Pilibanga, District Hanumangarh.
(At present lodged in Central Jail, Sri Ganganagar)
----Appellant
Versus
The State of Rajasthan
----Respondent
Connected With
(2) D.B. Criminal Appeal (DB) No. 135/2019
Bhagwan Singh S/o Sadul Singh, Aged About 39 Years, B/c
Rajput, Resident of Ward No 19, Pilibanga, District Hanumangarh
(Raj.)
(Presently Lodged At Central Jail, Bikaner)
----Appellant
Versus
The State of Rajasthan, Through PP
----Respondent
For Appellant(s) : Mr. B.S. Rathore
Mr. Shambhoo Singh Rathore
For Respondent(s) : Mr. B.R. Bishnoi, AGC
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MS. JUSTICE REKHA BORANA
JUDGMENT
Date of pronouncement :::: 31/08/2022
Order reserved on :::: 13/05/2022
BY THE COURT : PER HON'BLE MEHTA, J.
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(2 of 19) [CRLA-747/2016 & CRLA-135/2019] Both these appeals have been filed as culmination of separate judgments rendered by learned Additional Sessions Judge No.2, Hanumangarh after trials arising out of FIR No.405/2011 Police Station Pilibanga, District Hanumangarh. Initially, vide judgment dated 27.07.2016 passed in Sessions No.55/2012 (CIS No.136/2014), the accused Harpal Singh @ Pal Singh was convicted and sentenced as below:-
Offences Sentences Fine Fine Default
Sentences
302 IPC Life Imprisonment Rs.10,000/- 6 months' S.I.
148 IPC 1 year's S.I. Rs.1,000/- 1 month's S.I.
3/25 Arms 1 year's S.I. Rs.1,000/- 1 month's S.I.
Act
(All the sentences were ordered to run concurrently) The accused Bhagwan Singh, Rama Singh @ Ramlal were absconding and thus, proceedings were kept open qua them. Subsequently, Bhagwan Singh was apprehended and was put up for trial and the learned Additional Sessions Judge No.2, Hanumangarh decided his case vide judgment dated 03.04.2019 and convicted and sentenced him as below :-
Offences Sentences Fine Fine Default
Sentences
302/34 IPC Life Imprisonment Rs.10,000/- 6 months' S.I.
3/25(1-b)(a) 1 year's S.I. Rs.1,000/- 1 month's S.I.
Arms Act
(Both the sentences were ordered to run concurrently) As these two appeals arise out of separate judgments delivered in same Sessions Case arising out of FIR No.405/2011, (Downloaded on 31/08/2022 at 10:51:39 PM) (3 of 19) [CRLA-747/2016 & CRLA-135/2019] arguments in both the appeals have been heard and same are being decided together by this common judgment.
Brief facts relevant and essential for disposal of the appeal are noted hereinbelow :-
Shri Ashok Kumar (P.W.1), lodged a written report (Ex.P/1) to the SHO Police Station Pilibanga, District Hanumangarh on 18.09.2011 alleging inter alia that he and his close friend Nawab Ali, were having brother like relationship and were taking a morning walk on 18.09.2011 in the morning at about 06.00 to 06.30 AM. They were passing through Ward No.18, Pilibanga and reached the New Mandi Yard at which point of time, two motorcycles, one TVS and other Hero Honda on which, Harpal Singh @ Pal Singh, Raj Singh, Bhagwan Singh, Rama Singh @ Ramlal and Raman Baghla, were sitting came across and stopped near them. Bhagwan Singh exhorted and told Pal Singh to kill Nawab on which, Pal Singh son of Mandar Singh took out a pistol from his pocket and shot Nawab Ali just below his neck. Nawab fell down and expired at the spot. The accused assailants fired gunshots in air and escaped from the spot. The written report (Ex.P/1) came to be submitted by Shri Ashok Kumar who was accompanied by Sakhi Mohammad, father of the deceased on 18.09.2011 at 10.30 AM on the basis whereof, FIR No.405/2011 (Ex.P/2) came to be registered at the Police Station Pilibanga, District Hanumangarh for the offences punishable under Sections 302 and 143 IPC and Section 27 of the Arms Act and investigation was commenced.
Initially, Harpal Singh @ Pal Singh, Bhagwan Singh and Ram Singh @ Ramlal were arrested and after concluding investigation, (Downloaded on 31/08/2022 at 10:51:39 PM) (4 of 19) [CRLA-747/2016 & CRLA-135/2019] a charge-sheet came to be filed against them in the following terms :-
(i) Harpal Singh - Offences Punishable Under Sections 148 and 302 IPC and Section 3/25 of the Arms Act.
(ii) Bhagwan Singh and Ram Singh @ Ramlal - Offences Punishable Under Sections 148 and 302/149 IPC and Section 3/25 of the Arms Act.
The case was committed to the Court of Additional Sessions Judge No.2, Hanumangarh for trial. Charges were framed against the three accused as above. They denied the charges and claimed trial. 12 witnesses were examined and 54 documents were exhibited by the prosecution and evidence was closed. Statements of the accused Harpal Singh @ Pal Singh and Bhagwan Singh were recorded under Section 313 Cr.P.C. They denied the prosecution allegations and claimed to be innocent. Ramakant Mishra, Assistant Director Ballistic FSL, Bikaner was examined in defence as (D.W.1). The accused Rama Singh @ Ramlal and Bhagwan Singh, failed to appear before the trial court and were declared to be absconders. Their trial was separated. Final arguments were heard qua the accused Harpal Singh @ Pal Singh and the learned trial court proceeded to deliver the judgment dated 27.07.2016, convicting and sentencing him as above. It may be stated here that while the trial of the above three accused was underway, the learned Public Prosecutor submitted an application under Section 319 Cr.P.C. which was accepted by the learned trial court vide order dated 27.07.2016 and the accused Raj Singh and Raman Baghla were summoned as additional accused to stand trial for the offences punishable under Sections 148 and 302/149 IPC. They surrendered on 07.03.2018. During the trial of Raman Baghla and (Downloaded on 31/08/2022 at 10:51:39 PM) (5 of 19) [CRLA-747/2016 & CRLA-135/2019] Raj Singh, five principle witnesses of prosecution namely Shivshanker (P.W.1), Ashok Kumar, first informant (P.W.2), Suresh Kumar (P.W.3), Arvind Kumar (P.W.4) and Hasan Khan (P.W.5), were examined on oath. The principal witness Ashok Kumar was declared hostile during the de novo trial. However, trial against the accused Bhagwan Singh had already been completed before he absconded. The accused Raj Singh and Raman Baghla were also questioned under Section 313 Cr.P.C. They denied the prosecution allegation and claimed to be innocent.
The accused Bhagwan Singh was also rearrested and the proceedings were resumed. In the meantime, the original file was summoned to the High Court in the revision filed by Raj Singh and Raman Baghla, whereupon, trial of the accused Bhagwan Singh was separated. After hearing the arguments advanced by the learned defence counsel and the learned Public Prosecutor and appreciating the evidence available on record, the learned trial court proceeded to convict the accused Bhagwan Singh for the offences punishable under Sections 302/34 IPC and Section 3/25 (1-b)(a) vide judgment dated 03.04.2019. However, he was acquitted from the charges for the offence punishable under Section 148 IPC and Section 3/25 of the Indian Arms Act. Two subsequently summoned accused Raj Singh and Raman Baghla were acquitted of the charges for the offences punishable under Sections 148 and 302/149 IPC. D.B. Criminal Appeal No.135/2019, has been preferred on behalf of the accused Bhagwan Singh for assailing the judgment dated 03.04.2019.
Shri B.S. Rathore, learned counsel representing the accused appellant Harpal Singh @ Pal Singh and Shri Shambhoo Singh Rathore, learned counsel representing the accused appellant (Downloaded on 31/08/2022 at 10:51:39 PM) (6 of 19) [CRLA-747/2016 & CRLA-135/2019] Bhagwan Singh, vehemently and fervently contended that the entire prosecution case is false and fabricated. Evidence of the star prosecution witness Shri Ashok Kumar (P.W.1), is not reliable. The conduct of the witness in turning hostile during the fresh trial qua the accused Raman Baghla and Raj Singh makes his testimony unworthy of credence. The recoveries effected by the Investigating Officer during the course of investigation are unbelievable. The attesting witnesses did not give proper evidence to affirm these recoveries. Shri B.S. Rathore urged that the FIR (Ex.P/2) is a post investigation document and was actually registered at 4.30 PM and not at 10.30 AM as claimed by the prosecution. In this regard, Shri Rathore drew the Court's attention to the Roznamcha Entries of the Police Station Pilibanga and the evidence of the associated police officers. He further urged that the statements of the material prosecution witnesses regarding the precise identity of the assailant who allegedly fired the gunshot at the deceased Nawab, is highly contradictory. Shri Rathore urged that there are major contradictions in the evidence of Shri Ashok Kumar (P.W.1) on the material aspects of the prosecution case. The testimony of Ashok Kumar (P.W.1) is totally contradicted by the medical evidence as deposed by Medical Jurist Dr. Hariom Bansal (P.W.7) and the findings of the postmortem report (Ex.P/25). The gunshot wound noticed on the dead body of Nawab Ali having blackening marks and the trajectory of the projectiles was descending downwards. These observations/findings completely destroys the version of Shri Ashok Kumar that the gunshot was fired at Nawab Ali by the assailant who was standing just in front of him. He urged that the Medical Jurist Dr. Hariom Bansal admitted in his cross-examination (Downloaded on 31/08/2022 at 10:51:39 PM) (7 of 19) [CRLA-747/2016 & CRLA-135/2019] that the gunshot was fired from a distance of 2 to 3 feet. The exit wound was at a much lower level than the entry wound and thus, the assailant must have been standing at a significantly higher position as compared to the victim. Thus, the version of the so called eye-witness Ashok Kumar is contradicted by the medical testimony. Shri Rathore further urged that Ashok Kumar (P.W.1) completely changed his version in the trial of the accused Rama Singh, Raj Singh and Raman Baghla and emphatically stated that they were not present at the crime scene. This stance of the witness is totally against his version in the written report Ex.P/1 and the previous police statement. The witness even admitted that the police had forced him to name these persons as accused. The theory of motive put forth by the prosecution witnesses in their testimony is unworthy of credence. Shri Rathore fervently contended that as the most material prosecution witness Shri Ashok Kumar has changed his version in the trial of the subsequently arraigned accused, credibility of his evidence comes under a grave cloud of doubt. On these grounds, learned counsel Shri B.S. Rathore implored the Court to accept the appeal filed on behalf of the accused Harpal Singh @ Pal Singh.
Shri Shambhoo Singh Rathore, learned counsel representing the accused Bhagwan Singh contended that his client has been implicated in this case simply on the allegation that he made an exhortation to the co-accused Harpal Singh @ Pal Singh to fire the gunshot on the victim. However, this allegation of exhortation is highly improbable. The accused appellant had no knowledge whatsoever that Harpal Singh @ Pal Singh was carrying a weapon with him and thus, conviction of the appellant Bhagwan Singh with the aid of Section 34 of the IPC, is totally unjustified. He adopted (Downloaded on 31/08/2022 at 10:51:39 PM) (8 of 19) [CRLA-747/2016 & CRLA-135/2019] the remaining arguments advanced by learned counsel Shri B.S. Rathore and sought acquittal for the appellant Bhagwan Singh.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants' counsel. He urged that the witness Ashok Kumar was unquestionably present at the spot because he was on a morning walk with the deceased while the assailants came around and assaulted the deceased Nawab. The witness Ashok Kumar is an independent witness and had no animus with the accused appellants so that he could be persuaded to lodge false FIR and had implicated the accused appellants in this case and to give false evidence against them. He urged that the witness Ashok Kumar could not be shaken from his stand qua the roles attributed to the appellants despite lengthy cross-examination. The evidence of the eye-witness is duly corroborated by the evidence of Medical Jurist and the factum of recovery of the fire arm made from the appellant Harpal Singh. The Investigating Officer conducted thorough untainted investigation. He urged that the witness Ashok Kumar must have become terrorized on seeing the gruesome incident of his friend and companion being fired upon and killed and thus, merely because the Investigating Officer Shri Rameshwar Lal (P.W.14), stated in his cross-examination that he did not see anyone when he reached the place of incident upon receiving the telephonic information cannot be considered sufficient to discredit the direct and reliable testimony of the witness Shri Ashok Kumar. On these grounds, learned Public Prosecutor Shri Bishnoi, implored the Court to dismiss the appeal and affirm the impugned judgment.
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(9 of 19) [CRLA-747/2016 & CRLA-135/2019]
We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the material available on record.
The primary thrust of the arguments advanced by Mr. B.S. Rathore, Advocate, learned counsel representing the appellant Harpal Singh, and Mr. Shambhoo Singh, learned counsel representing the appellant Bhagwan Singh, was that testimony of the sole eye-witness Ashok Kumar (P.W.1) is not reliable and trustworthy. Ashok Kumar was not found present at the spot when the SHO Rameshwar Lal reached the crime scene within half an hour of the incident and the fact stated by Mr. Rameshwar Lal (P.W.14) that he remained at the spot for one and half hours and during this entire period, Ashok Kumar was not present there and that no one else came forward to lodge the report of the incident would clearly indicate that Ashok Kumar was introduced as a cooked up witness at a subsequent point of time and that the FIR was got drafted with collaboration amongst the Investigating Officer and the family members of the deceased. Learned defence counsel also referred to the statement of the photographer Shiv Shankar (P.W.4), who admitted that he had taken the photographs of the crime scene at around 07.30 in the morning. Thus, they urged that the investigation had already been commenced and the FIR (Ex.P/1) is a post investigation document.
Learned defence counsel also urged that in the de novo trial, Shri Ashok Kumar was examined as P.W.2 on 05.10.2018 and in such statement, he significantly changed his version and exonerated the accused Raman Baghla and Rama Singh @ Ramlal alleging that the police had pressurized him to take the names of these two persons. Thus, they urged that as the witness has (Downloaded on 31/08/2022 at 10:51:39 PM) (10 of 19) [CRLA-747/2016 & CRLA-135/2019] consciously changed his stance and exonerated the previously arraigned accused, no credence can be given to the version as deposed by him in the first round of proceedings. The last and the most fervent submission of the learned defence counsel for criticizing the evidence of Ashok Kumar, was based on the alleged discrepancy inter se between the ocular testimony viz.-a-viz. the medical testimony.
We now proceed to analyze the evidence of the star prosecution eye-witness Ashok Kumar in context to the arguments advanced in this Court.
At the outset, we are least impressed by the contention of the learned defence counsel that as Ashok Kumar, while deposing as (P.W.2) on 05.10.2018 in the de novo proceedings turned hostile to the extent of the accused Raman Baghla and Raj Singh, for this reason alone, his testimony in the original trial should be discarded qua the appellants as well. We may state that the de novo proceedings were required to be undertaken because the accused Bhagwan Singh went absconding after his statement under Section 313 Cr.P.C. had been recorded in the original trial and he could be rearrested after a significant delay of almost 7 to 8 years. During this period, there was every possibility of the witness Ashok Kumar being pressurized by the accused persons and in this background, merely because he changed his version qua the accused Raman Baghla and Raj Singh against whom otherwise also, there was no significant allegation of active participation in the incident, the entire substratum of the deposition as made by the witness at the first instance cannot be written off falsus in uno falsus in omnibus. The second limb of argument made by the learned defence counsel to criticize the (Downloaded on 31/08/2022 at 10:51:39 PM) (11 of 19) [CRLA-747/2016 & CRLA-135/2019] testimony of Ashok Kumar was that the witness was not seen at the spot when the police officials reached there and that is why, the FIR came to be lodged at about 10.30 AM i.e. after more than four hours from the incident.
In this regard, we have carefully perused the statement of Shri Ashok Kumar, who in his cross-examination, clearly stated that the police reached the spot about half and hour after the incident but he did not give them any information. He could not say as to who had informed the police about the incident. He emphatically denied the defence suggestion that he had given an interview about the incident to the photographers and reporters before arrival of the police. The witness also stated that the police team stayed at the spot for about 20 minutes. A Head Constable was left near the body and he was asked to submit the FIR on which he replied that he would be lodging the report after arrival of Nawab's father. Apparently thus, the witness has categorically refuted the defence suggestion regarding him not being present at the spot at the time when the police officials arrived there. Regarding the contrary version as appearing in the statement of Rameshwarlal (P.W.14) wherein he stated that he did not see Ashok Kumar at the spot when he reached there about 20 minutes from the incident, on a perusal of the cross-examination conducted from the witness Ashok Kumar, we are of the view that this reply was given by the police officer in the context of the sequence that the FIR was not lodged by Ashok Kumar at the spot. As we have noted above, Ashok Kumar has given a valid and logical explanation for not lodging the report with the police officials who had reached the spot. There was nothing wrong in the approach of the witness when he stated that he was waiting (Downloaded on 31/08/2022 at 10:51:39 PM) (12 of 19) [CRLA-747/2016 & CRLA-135/2019] for the arrival of the deceased Nawab Ali's father before the FIR could be submitted. It may be stated here that the incident was very ghastly in nature. The witness was on a morning walk with his close friend in the early hours of the day who was shot dead and thus, Shri Ashok Kumar must have been devastated on witnessing the gruesome incident and his hesitation in lodging the FIR and in waiting for arrival of the relatives of the deceased is totally natural and explainable.
In this background, the argument advanced by the learned defence counsel that testimony of Ashok Kumar should be discarded because he did not lodge the report promptly and also failed to give information to the police officials who had arrived at the spot shortly after the incident, is unacceptable and is thus, discarded.
On a pertinent particular question being put by the defence counsel in cross-examination, the witness stated that neither he nor Nawab Ali had any prior animosity with the accused persons.
Sakhi Mohd., father of Nawab Ali Khan and his brother-in-law Hasan Khan admitted that some kind of prior enmity existed between the deceased and the accused persons. Be that as it may. So far as the witness Ashok Kumar (P.W.1) is concerned, there is not even an iota of evidence on the record of the case to suggest that he was on any kind of inimical terms with the accused appellants and thus, there was no reason as to why he would give false evidence so as to implicate them in this case.
From the evidence of the eye-witness Ashok Kumar, the first informant, it is established beyond all manner of doubt that the appellant Bhagwan Singh and Harpal Singh @ Pala Singh accosted Nawab Ali and the eye-witness Ashok Kumar while they were on a (Downloaded on 31/08/2022 at 10:51:39 PM) (13 of 19) [CRLA-747/2016 & CRLA-135/2019] morning walk in the Dhan Mandi, Pili Banga on 18.09.2011. Bhagwan Singh, who was driving the motorcycle, exhorted that Nawab Ali should not be allowed to escape.
Thereafter, Harpal Singh, Rama Ram and Bhagwan Singh took out pistols from their pockets and fired gunshots at Nawab Ali. The Gunshot fired by Harpal Singh hit Nawab Ali just below the neck and passed through his body and he expired at the spot. The fact that Nawab Ali died because of the gunshot injuries was duly proved by the medical jurist Dr. Hariom Bansal (P.W.7), who was a member of the medical board, which conducted the autopsy upon the dead body and issued the postmortem report Ex.P/25.
A fervent argument of the learned defence counsel for impeaching the testimony of Ashok Kumar was that his evidence is contradicted by the medical testimony. In this regard, Shri B.S. Rathore stressed upon the following extracts from the statement of Ashok Kumar :-
"ftlesa jkekflag mQZ jkekjke o Hkxokuflag dh xksfy;k rks uokc ds mij ls fudy x;h gjiky mQZ iky dh xksyh uokc ds xys ls dqN uhps yxh uokc dk lhuk phjrs gq, ihNs fudy x;hA vkSj uokc tehu ij fxj x;kA"
While highlighting the sequence of events as narrated by Shri Ashok Kumar in his evidence, Shri B.S. Rathore, drew the Court's attention to the statement of the Medical Jurist Dr. Hariom Bansal (P.W.7) and stressed upon the following extracts from his testimony :-
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(14 of 19) [CRLA-747/2016 & CRLA-135/2019] "cqM vksQ ,UVjsal &2 xq.kk 2 lseh dk lkbt Fkk ftlds ekftZu bjjSxqyj Fks] ,oa ftlds fdukjs tys gq, o dkys Fks] ftldh txg eSuwcfj;e LVZukbt ds mij Fkh] tks fd xnZu ds lkeus Fkh] tks oqMvksQ ,UVjsal ls mldk Vªd czsfd;ks dSQsfyd oslsYl ls nk;s QsQMs ds mijh yksc e/; yksc o yksoj yksc rdZ FkkA ,fDtVoqaM & 1 xq.kk 1 lseh dk Fkk tks fd nlosa bUVjdksLVy Lisl esa FkkA
--------------------------------------------------------------------------------------------------------------------------- e`rd ds ,aVjsl oqM ,d bap ls FkksMk lk de Fkh] ,aVjsl oqaM xys ds ikl yxus ds ckn uhps dh rjQ "kjhj esa pyh o ihNs dh vksj fudy x;hA ,Vjsal oqM e`rd ds tks Qk;j yxk oks nks rhu QhV nwjh ls yxk FkkA Qk;j djus okyk gkFk mij djds Qk;j djs rks ,slh pksV vkus dh laHkkouk gks ldrh gSA
--------------------------------------------------------------------------------------------------------------------------------------------------
------------------------- oqM vksQ ,aVjsl ds ekftZu tys gq, o dkys Fks] oqM vksQ ,aVjsal dh fLFkfr ls ;s pksV MsM nks QqV dh nwjh rd vkus gh lEHkkfor gSA bl pksV dh fn"kk o vkxus; "kL= ls van:uh pksV mij ls uhps dh vksj gSA tks xys ds ikl ls "kq: gksdj Nkrh dh nkfguh vksj ihNs dh vksj fudy x;h bl izdkj ;s batjh frjNh yxh gqbZ FkhA tks pksV dk eSaus islst ;k ekxZ crk;k gS mldh izkstsDVkby fdlh l[r oLrq@gMMh vkfn ls ugha VdjkbZ gSA ;s ckr lgh gS fd ;fn izkstsDVkby fdlh l[r oLrq ;k gMMh ls Vdjk;s rks viuh fn"kk ifjofrZr dj nsrh gSA ih,e b,Dlih 25 esa xksyh yxus ds fgLls esa dksbZ QzsDpj ugha FkkA ;s dgk tk ldrk gS fd ,d laHkkfor dks.k ls Qk;j vkeZ dks pyk;k x;k gS blh dkj.k pksV frjNh ikbZ x;h gSA oqM vksQ ,aVjsal ls oqM vksQ ,fDtV NksVk gSA vke rkSj ij oqM vksQ ,fDtV cMk gksrk gSA izkstsDVy VwV tk;s NksVk gks tk;s ;k fM¶ysDV gks tk;s ,slh fLFkfr esa oqM vksQ ,fDtV NksVk gksus dh laHkkouk jgrh gSA"
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(15 of 19) [CRLA-747/2016 & CRLA-135/2019] While referring to these facts as elicited in the evidence of Dr. Hariom Bansal, (supra) Shri Rathore urged that there is not an iota of doubt that the gunshot was fired by an assailant who was standing at a higher position as compared to the deceased Shri Nawab Ali. As the entry wound was smaller than the wound of exit, it is impossible to believe that the gunshot was fired in the manner and from the direction as stated by Shri Ashok Kumar. He thus urged that the evidence of Shri Ashok Kumar having been thoroughly contradicted by the medical evidence, the latter should be given precedence and the testimony of the eye-witness should be discarded.
In support of this contention, Mr. Rathore placed reliance on the Supreme Court judgments in cases of State of Uttar Pradesh Vs. Ram Bahadur Singh & Ors. reported in (2004) 9 SCC 310 and L.L. Kale Vs. State of Maharashtra reported in (2000) 1 SCC 295.
Per contra, we have considered the rival submissions and have carefully perused the judgments cited at the bar. At the outset, we may state that the facts which were under consideration of the Hon'ble Supreme Court in the above two cases, are totally distinguishable. In the present case, the eye- witness Ashok Kumar has clearly stated that Harpal Singh was standing at a distance of 5 to 6 feet when he fired the gunshot at Nawab Ali and the muzzle of the gun was at a distance of 3 and half to 4 feet. In this kind of assault, it cannot be perceived that the witness would be in a position to measure the distance of fire with absolute precision. If at all, the witness made a statement that he managed to measure the distance of fire to inch precision, then his testimony would be liable to be questioned as being (Downloaded on 31/08/2022 at 10:51:39 PM) (16 of 19) [CRLA-747/2016 & CRLA-135/2019] manipulated. Thus, on the aspect of distance of fire, we do not find any contradiction inter se between the testimony of the eye- witness Ashok Kumar and the medical testimony. On the aspect of the direction of fire, we are cognizant of the fact that the medical jurist Dr. Hariom Bansal (P.W.7) did state that the trajectory of the projectile was downwards. However, in the examination-in-chief itself, the doctor stated that if the person making the fire had raised his hands at the time of firing the weapon, such injury was possible. In addition thereto, we would also like to observe that the trajectory of fire would also be dependent on the comparative height of the assailant and the deceased. If the assailant is taller than the victim, then also the direction of fire would be downwards. Thus, there is no merit in the argument of the defence counsel that simply because the medical jurist noted that the direction of the projectile in the firearm wound was downwards, the evidence of the witness Ashok Kumar (P.W.1) should to be discarded.
In the judgment of the State of Uttar Pradesh Vs. Ram Bahadur Singh (supra), the discrepancy in the ocular testimony and the medical testimony was much too significant. The eye- witness stated that the assailant was standing at a distance of 18 to 20 feet away from the deceased, whereas the medical jurist stated that the gunshot was fired from a distance of merely 4 feet. This discrepancy is far too significant and would be considered as contradicting the ocular testimony. Otherwise also, in the case of Ram Bahadur Singh, the Hon'ble Supreme Court was examining the facts in an appeal against acquittal, wherein the concept of appreciation of evidence is entirely different than that in an appeal (Downloaded on 31/08/2022 at 10:51:39 PM) (17 of 19) [CRLA-747/2016 & CRLA-135/2019] against conviction. Thus, the said judgment is of no avail to the appellant.
In the case of L.L. Kale Vs. State of Maharashtra (supra), Hon'ble Supreme Court noted contradictions in the statements of the witness regarding the two sets of assailants. However, we find that the contradictions, which were referred to in the said case was far too significant because the identity of the assailant was changed by the witness. Thus, the Hon'ble Supreme Court held that the witness made prevaricating statements, which were duly confronted and no explanation was offered in the same.
In the present case, the version of eye-witness Ashok Kumar in both the trials regarding participation of the accused appellants in the crime is consistent. Thus, we have no hesitation in holding that the testimony of Ashok Kumar (P.W.1) to the extent he alleged that the appellants herein came to the spot on the same motorcycle; the appellant Bhagwan Singh gave an exhortation that Nawab Ali should be killed and immediately thereafter, the appellant Harpal Singh @ Pal Singh took out a pistol and fired the gunshot at the deceased Nawab Ali killing him instantaneously is unimpeachable.
In addition to the above, from the evidence of Rameshwar Lal (P.W.14), the Investigating Officer, it is duly established that after the accused Harpal Singh was arrested in this case, he gave a voluntary information, recorded in memorandum Ex.P/43, regarding concealment of a pistol in his residential premises. The accused thereafter led the Investigating Officer to his house and took out a pistol from underneath the bed and it was seized vide memorandum Ex.P/10. The seizure proceedings were duly corroborated by the Panch witnesses Hasan Khan (P.W.3) and (Downloaded on 31/08/2022 at 10:51:39 PM) (18 of 19) [CRLA-747/2016 & CRLA-135/2019] Tarsem (P.W.5) and hence, the seizure of the pistol made at the instance of the accused appellant Harpal Singh is established beyond all manner of doubt. The pistol was got examined through FSL, from where a report Ex.P/51 was issued to the effect that the firearm was serviceable and had been fired and thus, the fact regarding Harpal Singh being in possession of an illicit firearm is fully established.
Now, we proceed to deal with the submission of counsel Shri Shambhoo Singh that conviction of the appellant Bhagwan Singh with the aid of Section 34 IPC is unjustified. As per the findings recorded above and after appreciating entire evidence available on record, it is clear that the appellants Bhagwan Singh and Harpal Singh came to the spot on the same motorcycle. The incident took place in the early morning. The accused Harpal Singh was armed with a firearm. There is a distinct allegation of eye-witness Shri Ashok Kumar that the appellant Bhagwan Singh made an exhortation to kill whereafter, the accused Harpal Singh took out the pistol and fired the fatal gunshot at the deceased Shri Nawab Ali. Therefore, there is no hesitatin for this Court to affirm the finding recorded by the trial court in the impugned judgment that the appellants had arrived at the spot with the common intention to kill the victim.
It is in furtherance of this common intention that the appellant Bhagwan Singh hurled exhortation to kill whereafter, the accused Harpal Singh fired the fatal gunshot. Thus, conviction of the appellant Bhagwan Singh for the offence punishable under Section 302 IPC with the aid of Section 34 IPC is absolutely justified. The finding recorded by the trial court on this aspect, is unimpeachable.
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(19 of 19) [CRLA-747/2016 & CRLA-135/2019] As an upshot of the above discussion, we are of the firm view that conviction of the appellants Bhagwan Singh and Harpal Singh @ Pala Singh as recorded by the trial court vide judgments dated 27.07.2016 and 03.04.2019 respectively, passed by the learned Additional Sessions Judge No.2, Hanumangarh in Sessions No.55/2012 (CIS No.136/2014), is based on proper appreciation of facts and evidence available on record and the same does not suffer from any infirmity warranting interference therein.
Hence, the appeals fail and are dismissed as being devoid of merit.
(REKHA BORANA),J (SANDEEP MEHTA),J
Devesh Thanvi/-
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