Rajasthan High Court - Jodhpur
Daud Khan vs State on 11 November, 2008
Author: Deo Narayan Thanvi
Bench: Deo Narayan Thanvi
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
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(1) CRIMINAL APPEAL No. 879 of 2005
DAUD KHAN
V/S
STATE
Mr. MAHESH BORA, for the appellant / petitioner
Mr. V.R. Mehta, PP, for the respondent
(2) CRIMINAL APPEAL No. 860 of 2005
JAVED BEIG
V/S
STATE
Mr. RAMESH PUROHIT, for the appellant / petitioner
Mr. V.R. Mehta, PP, for the respondent
(3) CRIMINAL APPEAL No. 523 of 2006
STATE
V/S
JAVED BEG & ANR
Mr. V.R. Mehta, PP, for the appellant / petitioner
Mr. SANJAY MATHUR, for the respondent
Date of Judgment : 11.11.2008
HON'BLE SHRI AM KAPADIA,J.
HON'BLE SHRI DEO NARAYAN THANVI,J.
JUDGMENT
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Reportable
BY THE COURT (PER HON'BLE MR. A.M. KAPADIA, J.):
1. Three accused persons viz., Daud Khan, Javed Beg and Nitin Sindhi (respectively accused A-1, A-2 & A-3, for [2] short) were charged and tried by the learned Addl. District & Sessions (Fast Track) Camp Nimbahera, District Pratapgarh, in Sessions case No. 103 of 2005 for the offence under Sec. 302, 302/34, 109/302 Indian Penal Code ('IPC', for short) and Sec. 3/25 of the Arms Act, on the accusation that accused came to the place of incident with weapons gun and knife with a view to kill deceased Nandsingh and accused A-1 Daud fired one gunshot on the chest of Nandsingh, who on receiving the same succumbed to the injury during treatment.
2. At the end of trial, accused A-1 Daud was found guilty for the offence under Sec.302 IPC and Sec.3/25 of the Arms Act, and he was sentenced to imprisonment for life and fine of Rs.5,000, in default of payment, further simple imprisonment for a period of six months for the offence under Sec.302 IPC and rigorous imprisonment for three years and fine of Rs.500, in default of payment further simple imprisonment for one month under Sec.3/25 of the Arms Act. Accused A-2 Javed was acquitted of the offence under Sec.302 but was convicted for the offence under Sec.3/25 of the Arms Act and sentenced to rigorous imprisonment for three years and fine of Rs.500, in default of payment to [3] suffer further simple imprisonment for a period of one month. Accused A-3 Nitin Sindhi was not found guilty for all the offences, therefore, he was acquitted of the offence with which he was charged.
3. Aggrieved by the impugned judgment and order, accused A-1 and A-2 have respectively filed D.B. Criminal Appeal Nos. 879 of 2005 and 860 of 2005 with the aid of Sec.374 of the Code of Criminal Procedure ('Code', for short) challenging the conviction recorded against them whereas State of Rajasthan has filed D.B. Criminal Appeal No. 523 of 2006 with the aid of Sec.378 of the Code, challenging acquittal of accused A-2 for the offence under Sec.302 IPC and acquittal of accused A-3 for all the offences with which he was charged.
4. The prosecution case, as disclosed from the FIR, and unfolded during trial, is that complainant PW1 Gajendra Singh filed a complaint on 19.06.2004 before the Police Station Nimbahera, wherein he has inter-alia stated that at about 7 O' Clock in the evening, Nitin Sindhi and Narendra Kumawat came to his residence and thereafter his brother Nandsingh alongwith them went on motorcycle. At about 9:30 PM, Narendra Kumawat [4] came to him frightened and told that he, Nitin Singhi and Nandsingh, all the three, were sitting on chairs at Bathra Telecom & Restaurant, where accused A-1 Daud and A-2 Javed came on a motorcycle, Javed A-2 took out a knife and told Nandsingh that today his end has come and meanwhile Daud A-1 fired a gunshot on the chest of Nandsingh. As per report, it was further stated that Narendra Kumawat told him that he and Nitin Sindhi tried to catch hold of accused Daud and Javed but they fled away from the place of occurrence by riding the motorcycle and thereafter Nandsingh was taken to hospital where he was declared dead.
5. On the aforesaid written report, police registered FIR No.374/04 and started investigation. During the course of investigation, inquest was held on the dead body of deceased Nandsingh and the dead body was sent for autopsy. Inspection report of the place of occurrence Ex.P/3 was prepared, blood smeared soil and control soil was taken from the place of occurrence and seized vide Ex.P/4 and the statements of the witnesses were recorded. Panchnama of the dead body was prepared vide Ex.P/5 and the clothes of the deceased were seized vide Ex.P/6. The postmortem of the dead body of the [5] deceased was got conducted and the seized articles were sent to FSL for chemical examination. Accused were arrested and the weapons used in commission of the offence i.e. gun and knife so also the motorcycle recovered. On receipt of the FSL report as well as Postmortem report, as incriminating evidence was found against all the three accused, i.e. A-1 Daud Khan, A-2 Javed Beg and A-3 Nitin Sindhi, chargesheet came to be filed against them before the Court of ACJM, Nimbaheda for the offence under Sec. 302, 302/34, 109/302 IPC and under Sec. 3/25 of the Arms Act.
6. As the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the learned ACJM, Nimbaheda committed the case to the Court of Sessions Judge Pratapgarh, and ultimately came to be tried by the court of Addl. District & Sessions Judge (Fast Track) Pratapgarh camp Nimbaheda ('trial Court', for short).
7. The trial Court, to whom the case was made over for trial, framed charge against the accused and the charge was read over and explained to the accused to which they pleaded innocence and claimed trial, therefore, they were put to trial in Sessions Case No.103 of 2005. [6]
8. To prove the culpability of the accused, the prosecution has examined as many as 25 witnesses and relied upon their oral testimony. In order to bring home charge levelled against the accused, the prosecution has also produced 65 documents and relied upon the contents of the same.
9. After recording of the evidence of the prosecution witnesses was over, the trial Court recorded further statements of the accused as required under Sec.313 of the Code. In their further statements, accused denied the allegations leveled against them and stated that they are innocent persons and have been falsely implicated in this case. In support of their defence, they have examined five witnesses.
10.On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court has come to the conclusion that homicidal death of deceased Nandsingh is proved as he has died of receiving gunshot injury. It is also held by the trial Court that the gunshot was fired by accused A-1 Daud and accused A-2 Javed though was having a knife, no injury was caused to the deceased. [7] Accused A-1 was held guilty for the offence under Sec.302 IPC and also under Sec.3/25 of the Arms Act whereas accused A-2 was held guilty only for the offence under Sec.3/25 of the Arms Act and accused A- 3 Nitin Sindhi was not found guilty as no overtact was attributed to him for causing murder of deceased Nandsingh. Accordingly, the trial Court convicted accused A-1 & A-2 and sentenced them for the said offences and accused A-3 was acquitted of all the charges, to which a reference is made in earlier paragraph. It is this judgment and order which has given rise to these three appeals being D.B. Criminal Appeal Nos. 879 of 2005 and 860 of 2005 respectively filed by accused A-1 & A-2 whereas State of Rajasthan has filed D.B. Criminal Appeal No. 523 of 2006 challenging the acquittal.
11.As all the three appeals arise out of the same judgment and order, therefore, they are heard together and decided by this common judgment.
12.Mr. Mahesh Boda, learned counsel for accused A-1 while assailing the judgment and order raised following contentions:
[8]
I. FSL Report falsifies the version of eye witnesses;
II. Publication of news by media on the basis of information supplied by Superintendent of Police, falsifies the contents of FIR; III. Blood stains were not recovered from the place where the deceased was murdered;
IV. Narendra Kumawat, accused A-3 Nitin Sindhi and deceased Nandsingh came together at the spot of occurrence then why only Nitin Sindhi was made accused whereas Narendra Kumawat was made a prosecution witness;
V. Not supporting the case by Nitin is the ground to make him accused;
VI. Gun which was allegedly used by accused A-1 was not recovered from him but recovered from accused A-2;
VII. FIR not reached the Magistrate promptly as it reached after 37 hrs. of the occurrence;
VIII. Postmortem report suggests that track extends wound present in right side to the left side of chest;[9]
IX. Fire was made from a distance and not from near as stated by eye witnesses as there is no scorching nor blackening near the wound, therefore eye witnesses are not reliable;
X. Change in the place of incident, meaning thereby, entire genesis of the crime is suppressed;
XI. Motive is quarrel with respect to cricket match between India and Pakistan, which is not convincing;
XII. Past of deceased was shabby, therefore, there were lot of enemies, who might have killed the deceased;
XIII. Chhote Khan, who was examined as defence witness No.1 and whose shop is near the place where deceased was found murdered, wrongly not believed; XIV. Three chance witnesses i.e. PW7 Mahaveer Singh, PW 23 Narendra Singh and PW24 Rishiraj Singh, who belong to same caste, cannot be relied upon as there was no occasion for them to be at the place of incident;[10]
XV. If the chance witness did not know the accused, TI Parade ought to have been conducted but in the instant case TI Parade has not been conducted then how the witness has identified the accused without knowing their names;
XVI. There is no motive for the accused to kill Nandsingh.
13.To buttress the submission that both the two eye witnesses are not the eye witnesses and three chance witnesses are not stating the correct fact, he has also drawn our attention to Modi's Medical Jurisprudence and submitted that no blackening or scorching on the dead body of deceased was found therefore firearm was not discharged from a distance of less than four feet whereas as per their oral testimony the firearm was discharged from nearby i.e. within the range of four fts., therefore eye witnesses and chance witnesses are unreliable. On the aforesaid premises, it is submitted that the impugned judgment and order of conviction and sentence recorded against accused A-1 for offence under Sec.302 and Sec.3/25 of the Arms Act deserves to be quashed and set aside by [11] allowing this appeal and thereby acquitting him for all the offences with which he was charged.
14. Alternatively, it is submitted by him that if at all the evidence of prosecution witnesses is accepted then at the most it is a case of culpable homicide not amounting to murder punishable under Part II of Sec.304 IPC and as the accused is in jail for more than four years, his conviction may be altered from Sec.302 IPC to Part II of Sec.304 IPC and the sentence undergone by him may be treated as substantive sentence and the accused may be set at liberty. He, therefore, urged to pass appropriate order in this regard.
15.Mr. Ramesh Purohit, learned counsel for accused A-2 adopted the same line of arguments advanced by Mr. Boda, however, alternatively he has submitted that if this Court comes to the conclusion that accused is guilty for the offence under the Arms Act then the sentence of three years awarded to him is harsh and disproportionate to the guilt of the accused. He, therefore, urged to reduce the sentence by awarding the sentence already undergone by him, which is more than six months. He, therefore, urged [12] to pass appropriate order in this regard.
16.Per contra, Mr. V.R. Mehta, learned Public Prosecutor has supported the impugned judgment and order passed by the trial Court so far as recording of conviction and sentence against accused A-1 for the offence under Sec.302 as well as under Sec. 3/25 of the Arms Act against accused A-1 is concerned, however, he submits that acquittal of accused A-2 from offence under Sec. 302 IPC and of accused A-3 from offence under Sec. 302 IPC as well as 3/25 Arms Act is against the evidence on record. Accordingly to him, there is ample evidence against accused A-2 & A-3 to connect them with the commission of murder of Nandsingh and convicting them for the offence under Sec.302/34 of IPC, therefore, appeal filed against their acquittal deserves to be allowed and they are liable to be convicted and sentenced for the offence under Sec.302/34 IPC. He, therefore, urged to allow the appeal and pass order of conviction and sentence against both of them for the offence under Sec. Sec.302 IPC and Sec. 3/25 Arms Act.
17.In reply to the submissions of Mr. V.R. Mehta, Mr. Ramesh Purohit and Mr. Sanjay Mathur, learned counsel appearing for accused A-2 & A-3 have supported the [13] judgment and order as according to them no infirmity has been committed by the trial Court in recording acquittal of accused A-2 for offence under Sec.302 IPC and of accused A-3 for offence under Sec.302 IPC and Sec.3/25 of the Arms Act. They, therefore, urged to dismiss the appeal filed by State of Rajasthan.
18.We have considered the submissions advanced by learned counsel for the parties. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned counsel for the parties with reference to broad and reasonable probabilities of the case. While dealing with the case, this Court has examined the entire evidence on record and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence against accused A-1 and the order of acquittal passed in favour of accused A-2 for offence under Sec.302 IPC and in favour of accused A-3 for all the offences.
19.There is no dispute to the fact that the deceased died a [14] homicidal death. In this connection, the prosecution examined and relied upon the oral testimony of PW14 Dr. Tej Singh Dangi and PW15 Dr. K. Asif, who have jointly performed the postmortem on the dead body of the deceased. They have also issued the postmortem report which is on record as Ex.P/22.
20.On conjoint reading of the statements of both the medical witnesses; i.e. PW14 Dr. Tej Singh Dangi and PW15 Dr. K. Asif, and the postmortem Report Ex.P/22, it is seen that the deceased died because of the bullet injury caused to him on his chest and the mode of death was shock due to injury to the vital organ alongwith c internal hemorrhage. Therefore, there is no manner of doubt that the deceased died a homicidal death.
21.After having held that the deceased died a homicidal death, the next question which is required to be answered by this Court is whether accused A-1 was the author of the injuries caused to the deceased?
22.To prove this fact, the prosecution has relied upon the oral testimony of five eye witnesses as well as PW1 Gajendra Singh, who is author of the FIR.
[15]
23.Now adverting to the oral testimony of PW1 Gajendra Singh, who is author of the FIR, we have noticed that he has inter-alia stated before the Court as per the contents of the FIR. He has testified that on 19.06.2004 at about 7 PM accused No.3 and Narendra Kumawat came to him. Nitin asked him about his brother Nandsingh and thereafter Nitin went inside his house. On persuasion by Nitin, his brother went with them. Thereafter, at about 9:30, Narendra came to his house and informed him that he, Nitin Sindhi and Nandsingh were sitting on the Batra Telecom shop, at that time, i.e. about 9:15 PM, accused A- 1 and A-2 came on motorcycles, accused A-2 Javed took out knife and told Nandsingh that it was last day for him and accused A-1 Daud fired from his gun, and thereafter both of them fled away from that place. Narendra also informed him that they took Nandsingh to hospital where he was declared dead. On receiving this information, PW1 Gajendra Singh went to hospital where he saw dead body of his brother. It may be noted that this witness has been cross examined at length but nothing substantial could be brought out from his testimony which would impeach the credibility of his evidence or make his evidence unreliable. [16]
On re-appraisal of his evidence, it is assembled that on the fateful day the deceased was taken by accused A-3 and Narendra with them and they were sitting at the telephone booth where accused A-1 and A-2 came with weapons and accused A-2 gave threat whereas accused A-1 fired gunshot on him. It is true that PW1 Gajendra Singh is not an eye witness but his FIR is based on the information supplied by PW11 Narendra Kumawat, who is an eye witness to the incident. His evidence corroborates the contents of FIR Ex.P/1, therefore, there is no reason to discard oral testimony of PW1 Gajendra Singh.
24.The prosecution thereafter has examined and relied upon the oral testimony of PW11 Narendra Kumawat, who is an eye witness and who has inter-alia testified that he went to the shop of Nitin Sindhi and Nitin Sindhi asked him to accompany to the house of Nandsingh but did not disclosed the reason for that. Thereafter, both of them went to Nandsingh's house on their motorcycles where they met younger brother of Nandsingh outside the house. Nitin went inside the house to talk with Nandsingh and after about 10-15 minutes both Nitin and Nandsingh came out of the house. Nitin told Gajendra that they were going for outing. Nitin gave the pillion seat to Nandsingh on his [17] motorcycle and told him that they had some work and he should reach at his shop where they too would arrive. He went to the shop of Nitin through market and waited for some time, then Nitin and Nandsingh arrived there. Thereafter, they went to the Batra Telecom shop and sat there on chairs. After about 10-15 minutes, Daud and Javed came on motorcycles. Javed took out knife and told Nandsingh that it was his last day and thereafter Daud took out a country-made revolver and fired at Nandsingh and thereafter they fled away towards Chittor side on their motorcycles. The witness tried to chase them on his motorcycle but could not reach them, therefore, he came back and found Nandsingh lying on earth. Thereafter, they took Nandsingh on motorcycle to hospital where the doctor after checking Nandsingh declared dead. He, thereafter, went to the house of Nandsingh and informed his younger brother Gajendra Singh. This witness has been cross examined at length by the learned Advocate for defence but he withstood the test of cross examination but nothing substantial could be brought out from his testimony which would impeach the credibility of his evidence or make his evidence unreliable.
On repriasal of his evidence, it is seen that [18] his evidence completely corroborates the evidence of PW1 Gajendra Singh, who has lodged the complaint and the oral testimony of PW11 Narendra Kumawat and PW1 Gajendra Singh corroborates each other, as such there is no reason to discard this piece of evidence.
25.Now we shall advert to the oral evidence of PW19 Surajmal, who is projected as an eye witness and is the owner of shop Bathra Telecom & Restaurant, where accused A-1 fired gun shot on deceased Nandsingh . He has inter-alia testified that on 19.06.2004 at 8 PM, when he was sitting at his shop, Nandsingh, Nitin and Narendra Kumawat came to his shop and were sitting on chairs in the corner of tin-shed. After 15 minutes, A-1 Daud and A-2 Javed came there and went inside the shop to drink water and thereafter they came out of shop towards that corner. Javed was having a knife in his hand and he told Narendra Kumawat that it was the last day for him. While Narendra Kumawar was in the process of standing, A-1 Daud fired gun shot on him and on receiving the gun shot Nandsingh ran away towards the western side and fell down. Thereafter, Daud & Javed flee away on their motorcycle. Nitin and Narendra both chased them. Thereafter, Narendra Kumawat and Nitin took injured Nandsingh to [19] hospital. At the time of incident, one Narendra Singh, Liquor Contractor was also there. His statement is recorded by the Magistrate, which is on record as Ex.P/31. It is also clarified that by an inadvertent mistake he stated that Daud fired on Narendra Kumawat and then he corrected that the gun shot was fired by accused Daud on Nandsingh. He has further testified that Narendra Singh, the liquor contractor was eating food at that time. He has also produced bill Ex.P/32. He has been cross examined at length.
On re-appraisal of the evidence, according to us, he successfully withstood the test of cross examination and nothing substantial has been brought out from his testimony which would impeach the credibility of his evidence or make his evidence unreliable.
26.Now, this takes us to examine the oral testimony of PW7 Mahaveer Singh, who is also an eye witness. In his oral testimony, he has inter-alia testified that on the day of incident at 9 PM he had halted at the shop of Batra Telecom as he was exhausted and he ordered for tea. At that time, he and 7-8 other persons were sitting there. After a little while, one motorcycle without number came there on which two persons were riding. They went [20] towards the hotel. One was having a knife and another was having a revolver. Out of the two, one fired on the person who was sitting in the middle of three persons and thereafter both of them ran away. The person at whom the fire was shot, ran towards a juncture of four roads and fell down. The two boys, who were with the boy who had received the injury, shifted the injured to hospital. He has also testified that he could identify both the persons who were having knife and revolver. He has identified both of them in the Court. He further testified that the name of accused Javed was disclosed to him by the owner of the hotel.
27.The prosecution, thereafter, has examined and relied upon one more eye witness PW23 Narendra Singh. He has testified that on the date of incident he was sitting at the hotel for taking his meals. He saw three boys sitting and talking inter-se. At that time, one motorcycle came, two boys alighted from the motorcycle and went inside the hotel. They came out of hotel and went towards the three boys sitting there. Out of the two, one took out a knife and told to one out of the three boys that his end had come and the another boy who had come driving the motorcycle, took out a country made revolver and while the boy was [21] standing, he fired the gun shot on him and thereafter both riding the motorcycle went away towards Chittorgarh. He asked Surajmal, the owner of the hotel about the matter, who told him the names of both the accused. Surajmal also told the name of victim as Nandsingh.
28.The prosecution thereafter examined and relied upon one more eye witness PW24 Rishiraj Singh. He has also testified on the same lines as is testified by PW7 Mahaveer Singh and PW23 Narendra Singh. He also came to the hotel for taking tea. He saw three boys sitting on chairs. Two boys came on motorcycle and after alighting went inside the hotel and on coming outside after a little while, one boy showed knife to Nandsingh and another boy fired on Nandsingh. Nandsingh thereafter ran towards the road and fell down and thereafter both the boys, who came on motorcycle, fled away from there. Nandsingh, who was injured, shifted to hospital by his two companions. It was informed by the owner of the hotel that the boy who fired the shot was Daud and the person who had shown knife was Javed. On the next day, they heard about the death of Nandsingh.
29.It may be appreciated that the above three referred [22] witnesses i.e. PW7 Mahaveer Singh, PW23 Narendra Singh and PW24 Rishiraj Singh withstood the test of cross examination. Their evidence corroborates the evidence of eye witness PW19 Surajmal, who has also stated that at his shop Narendra Singh, liquor contractor came. Nothing substantial has been brought out in cross examination from their evidence which would impeach the credibility of their evidence or make their evidence unreliable.
30.Mr. Mahesh Boda, learned counsel for accused Daud submitted that above three witnesses i.e. PW7 Mahaveer Singh, PW23 Narendra Singh and PW24 Rishriraj Singh were the chance witnesses whose presence at the scene of occurrence at the relevant time was doubtful as the prosecution has not clarified as to how and under what circumstances they came to the hotel of PW19 Surajmal. Besides this, prosecution has not clarified that how they identified the two assailants when they did not know them previously, therefore, in absence of TI Parade, their evidence cannot be relied upon to base the conviction of accused A-1 Daud. We do not find any substance or force in the submission of Mr. Boda. PW19 Surajmal in clear terms has stated in his evidence that at his shop Narendra Singh, liquor contractor came. All the three witnesses [23] have also stated that they came to know of the names of assailants from PW19 Surajmal. It is true that the above three witness came there prior to the incident, therefore, they were chance witnesses but there is no rule of law that the evidence of chance witnesses cannot be relied upon. It also cannot be laid down as an absolute proposition of law that the evidence of chance witness cannot be relied upon and acted to base the conviction. So far as TI Parade is concerned, according to us, it was absolutely not necessary when they categorically stated before the Court that they came to know of the names of assailants from PW19 Surajmal. It is settled law that failure to hold TI Parade even after the demand by the accused is not always fatal and it is only one of the relevant factors to be taken into consideration alongwith the other evidence on record. If the claim of the eye witnesses that they knew the accused already is found tobe true, the failure to hold TI Parede is inconsequential. (see: Surendra Narayan Vs. State (AIR 1998 SC 192: 1998 Cr.L.J.359); Dhananjay Shanker Shetty Vs. State AIR 2002 SC 2787: (2002) 6 SCC 569:
2002 SCC (Cri.) 1444.
31.The submission of the learned counsel for accused is that the eye witnesses have stated that the gun shot injury was [24] fired from very near within the range of 4 ft whereas as per FSL report gunshot was fired from a distant place and therefore eye witness could not be relied upon and the prosecution failed to establish charge against the accused has no substance. It is submitted that the oral testimony is of firing gunshort from nearby place but as per FSL report there was no blackening or scorching, therefore, fire was made from a distance and in view of the variance, the prosecution has failed to establish its case and therefore the oral testimony of the eye witnesses should be discarded. It is true that as per the eye witnesses, fire was made from a nearby place whereas as per the medical evidence of PW14 Dr. Tej Singh and PW15 Dr. K.Asif blackening or scorching was not found. It is equally true that as per Mody's jurisprudence, no blackening or scorching is found, if the fire arm is discharged from a distance of more than four feet. So far as oral testimony of eye witnesses is concerned, they have stated that the shot was fired from nearby. None of the eye witness has stated that it was fired from a distance of less than 4 ft. Merely because no blackening or scorching was found on the dead body of the deceased, that fact itself is not decisive to come to the conclusion that the eye witnesses have given false version before the Court. There may be little [25] variance or difference in their oral testimony with regard to the fire made from distance of less than 4 ft or more than 4 ft, therefore, this submission is found meritless and we repel this submission.
32.Another submission of the learned counsel Mr. Boda is that the place of incident has been changed and therefore genesis of crime is suppressed also has no substance. It is true that the deceased has not fallen down at the place where he sustained the gunshot injury but he fell down after running to some extent and therefore obviously blood stains were not found at the place of sustaining injury and were found where he had fallen down.
33.The submission that the publication of the media on the basis of information supplied by Superintendent of Police falsifies the contents of FIR also has no substance. It is true that the Superintendent of Police has given a news item to the media that the accused were not found out till then but it is settled law that the publication of news by the media cannot be read in evidence.
34.Yet anther submission of learned counsel is that accused A-3 Nitin and deceased went together at the place of [26] occurrence but Narendra was not made an accused while Nitin, who had played no role, was made an accused because he had refused to give evidence against the accused, therefore, prosecution case should be thrown overboard. This submission is also found meritless from a perusal of depositions of Investigating Officer PW25 Rajendra Pareek. He has testified that the witness Narendrasingh Kumawat and accused Nitin Sindhi played different roles because it was divulged during the course of investigation that Nitin Sindhi was also involved in the conspiracy, therefore accused A-3 Nitin was rightly made accused though it is a different matter that there is no material against him for hatching conspiracy to kill the deceased and therefore he has been acquitted.
35.So far as the submission that the weapon gun, which was used by A-1 was recovered from accused A-2, therefore, also the prosecution case should thrown board, has also no substance. It is true that the gun and knife both were recovered from Javed accused A-2 but possibility cannot be ruled out that after using the gun by accused A-1 he might have handed over it to accused A-2. Besides this, there is consistent evidence of eye witnesses that gun was used by A-1 then the recovery of gun from A-2 pales into [27] insignificance.
36.So far as the submission that motive for committing crime pleaded by the prosecution is very trivial with regard to the cricket match between India and Pakistan and therefore also the prosecution case should not be relied upon, has also no substance. When there is consistent evidence of eye witnesses against the accused, the motive also pales into insignificance. There are crimes which have been committed either with motive or without motive.
37.The submission that the past of the deceased was shabby, and there were lot of enemies who might have killed the deceased also has no substance in view of the fact that all the five witnesses have categorically stated about firing of the gunshot by accused A-1.
38.The submission that defence witness DW1 Chhotu Khan, whose tyre shop is nearby in the immediate vicinity of the place of incident, has been wrongly disbelieved, also has no substance. From a perusal of his evidence, it is seen that someone came in a truck has killed the deceased, which is nothing but afterthought, and his evidence does not inspire confidence vis a vis the evidence of five eye [28] witnesses examined by the prosecution. Therefore, trial Court has rightly disbelieved his evidence.
39.On overall re-appreciation of the entire evidence of the prosecution witnesses, the oral testimony of PW1 Gajendra Singh corroborates the FIR Ex.P/1 and also gets corroboration from the testimony of PW11 Narendra Kumawat as well as PW19 Surajmal whose restaurant and telecommunication shop is at the place of incident. Similarly, evidence of PW7 Mahaveer Singh, PW23 Narendra Singh and PW24 Rishiraj Singh, though they are chance witnesses, is of sterling worth and they have stated before the Court that they have seen the incident and they have been conveyed the names of the assailants by PW19 Surajmal and they have identified accused A-1 and A-2 in the Court. The evidence of all the eye witnesses corroborates each other and their evidence is sufficient to come to the conclusion that accused A-1 Daud fired gun shot at the chest of Nandsingh and accused A-2 Javed took up knife and told Nandsingh that his end had come. Therefore, the prosecution has successfully established the complicity of accused A-1 for committing murder by firing gunshot and accused No.2 gave threat with weapon knife. Therefore, trial Court has rightly recorded the finding that [29] the accused A-1 Daud has killed deceased Nandsingh and we affirm the said finding.
40.Now this takes us to examine the alternate plea raised by learned counsel Mr. Boda that offence which has been committed by Daud accused A-1 is not murder punishable under Sec.302 but it is an offence which falling under Exception IV of Sec.300 punishable under Part II of Sec.304 IPC as the offence is culpable homicide not amounting to murder since only one gunshot was fired and after firing a single gunshot accused A-1 immediately fled away and he has not taken any undue advantage. In support of aforesaid plea, learned counsel has relied upon reported decision of the Supreme Court in the case of Rajkishore Vs. State of Bihar (2003 Cr.L.J. 5040).
41.We have given our thoughtful consideration to the aforesaid submissions and also perused the evidence from that angle. It is true that accused A-1 and A-2 came there and accused A-2 gave threat to the deceased with weapon knife that it was the last day for deceased as his end had come and thereafter accused A-1 fired one gunshot and immediately thereafter they fled away. If accused A-1 was mindful of the situation to take undue advantage then he [30] would have fired more than one gunshot, therefore, accused No.1 has not acted in any cruel or unusual manner nor he has taken undue advantage of the situation. In the cited Supreme Court decision of Raj Kishore Jha (supra), accused was alleged to have fired one gunshot from distance of 70 to 80 ft and medical document not varied with the ocular testimony. In the facts and circumstances Sec. 302 was held not applicable observing that though there cannot be any rule that whenever one shot is fired from distance, Sec.302 would not be applicable and accused was convicted under Sec.304 Part II.
42.In the case of Lachman Singh Vs State of Haryana (2006) 10 SCC 524, the Supreme Court has held that if occurrence takes place in course of sudden quarrel, conviction of appellant is required to be altered from Sec. 302 to 304 Part I IPC.
43.In the case of Harendra Nath Borah Vs. State of Assam 2007 AIR SCW 4631 , Supreme Court has clearly set out the distinction between 'murder' and culpable homicide not amounting to muder. In the said case, deceased truck Driver was assaulted by accused police personnel and thereafter left on the road after he became senseless. In that case, the Supreme Court has altered conviction [31] recorded under Sec.302 to 304 Part I IPC.
44.Applying the principle enunciated by Supreme Court in above referred three decisions to the facts of the present case, there is evidence that quarrel took place between accused and deceased in connection with cricket match between India and Pakistan and therefore on the fateful day both the accused came there. Accused A-2 gave threat and accused A-1 fired at deceased only one gun shot, therefore, it can safely be inferred that accused has not acted in acted in a cruel or unusual manner nor he has taken undue advantage of the situation. If he was mindful to take undue advantage, then he would have fired more than one gunshot. Therefore, the act of the accused falls is exception 4 of Sec.300 IPC punishable under Sec. Part I of Sec.304 IPC.
45.Now the next question which is to be answered by us is as to what sentence should be awarded to accused A-1 for commission of offence of culpable homicide not amounting to murder under Sec. 304 Part I IPC.
46.In catena of decisions pronounced by the Supreme Court, normal sentence for the sentence under Sec. 304 Part I [32] varies from 7 years to 10 years and in the instant case according to us if sentence of 7 years and fine of Rs.5,000, in default of payment, further simple imprisonment for a period of six months for the offence under Sec.304 Part I IPC would meet the ends of justice. So far conviction and sentence recorded against accused A-1 for the offence under the Arms Act is concerned, we do not want to disturb the order of conviction and sentence.
47.Now coming to the Criminal Appeal filed by accused A-2, it is required to be noted that he has been acquitted for the offence under Sec.302 IPC, however, he has been convicted for the offence under Sec. 3/25 of the Arms Act and sentenced to suffer three years rigorous imprisonment and fine of Rs.500, in default of payment to suffer further simple imprisonment for a period of one month. According to us, he had come with knife and had shown it to the deceased but did not use it, therefore, the sentence of three years imposed upon him is a little harsh and disproportionate to the guilt of A-2. We are, therefore, of the opinion that if he is sentenced to suffer rigorous imprisonment for six months and fine of Rs.500, in default of payment to suffer further simple imprisonment for a period of one month instead of rigorous imprisonment for [33] three years and fine of Rs.500, in default of payment to suffer further simple imprisonment for a period of one month, would meet the ends of justice.
48.Now this takes us to examine Criminal Appeal No. 523 of 2006 filed by the State of Rajasthan challenging the acquitted recorded in favour of A-2 for the offence under Sec.302 and in favour of A-3 for the offence under Sec.302 as well as Arms Act.
49.Before we proceed to examine the merits of the acquittal appeal, it would be appropriate to refer to the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court. In the case of Ajit Savant Majagavi v. State of Karnataka, reported in AIR 1997 3255, the Supreme Court has laid down the principles which read as under:
(a) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(b) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings [34] recorded by trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(c) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
(d) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court.
(e) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favour the accused should be adopted.
(f) The High Court has also to keep in mind that the trial had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court, especially in the witness box.[35]
(g) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
50.It is the cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellant court cannot substitute its own view by reversing the acquittal into conviction unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (See: Ramesh Babulal Doshi Vs. State of Gujarat (1996) 9 SCC 225).
51.In Anok Singh Vs. State of Punjab , reported in AIR 1992 SC 598, the Supreme Court has held that in an appeal against acquittal, the High Court should attach greater weight to appreciation of evidence by the trial Judge who had the occasion to watch the demeanour of the witnesses.
52.Keeping in forefront the principle enunciated by the Supreme Court in above referred three judgments, if we examine the case of the prosecution against accused A-2, [36] and A-3, according to us, accused A-2 came with accused A-1 and shown the knife but did not use it. He gave only threatening whereas accused A-3 came with Narendra Kumawat and deceased. There is no evidence or there is no charge that accused A-2 and A-3 had hatched conspiracy or they have shared the common intention or they have abeted accused A-1 for killing Nandsingh. There is no evidence worth name against both of them for offence under Sec.302 IPC read with either Sec. 120B, 34 or 114 of the IPC for causing murder of Nandsingh. Therefore, the trial Court has rightly recorded the acquittal of accused A-2 for the offence under Sec.302 and acquittal of Accused A-3 for offence under Sec.302 as well as under
the Arms Act.
53.On overall view of the matter, We do not find any merit in Criminal Appeal No. 523 of 2006 filed by the State of Rajasthan against accused A-2 and A-3 challenging the order of acquittal recorded in their favour.
54.For the forgoing reasons, Criminal appeal No. 879 of 2005 filed by accused A-1 deserves to be partly allowed by altering his conviction and sentence for the offence under Sec.302 to Sec.304 Part I, Criminal Appeal No. 860 of [37] 2005 filed by accused A-2 deserves to be allowed qua sentence only and the Criminal Appeal 523 of 2006 filed by State against acquittal of accused A-2 from the offence under Sec.302 IPC and acquittal of accused A-3 from the offence with which he was charged, deserves to be dismissed.
55.Criminal appeal No. 879 of 2005 filed by accused A-1 succeeds in part. Consequently, we uphold the conviction of accused A-1 for the offence of murdering Nandsingh, however, we alter his conviction under Sec.302 to Sec.304 Part I IPC and for which he is sentenced to rigorous imprisonment for 7 years and fine of Rs.5,000, in default of payment, further simple imprisonment for a period of six months for the offence under Sec.304 Part I IPC whereas conviction and sentence recorded against him for the offence under Sec.3/25 Arms Act is affirmed and maintained. Accused is in jail and shall serve out his remaining part of sentence. Both the sentences are ordered to run concurrently.
56.Criminal Appeal No. 860 of 2005 filed by accused A-2 also succeeds in part qua sentence. Consequently, while upholding conviction recorded against him for the offence [38] under Sec.3/25 Arms Act, we reduce his sentence and instead of sentencing him to rigorous imprisonment for three years and fine of Rs.500, in default of payment to suffer further simple imprisonment for a period of one month, he is sentenced to rigorous imprisonment for six months' and fine of Rs.500, in default of payment to suffer further simple imprisonment for a period of one month. Accused A-2 has undergone imprisonment for more than six months and is on bail, therefore, no necessity to pass any further order.
57.Criminal Appeal No. 523 of 2006 filed by the State Government is dismissed.
(DEO NARAYAN THANVI ),J. ( AM KAPADIA ),J.
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