Rajasthan High Court - Jaipur
Brajraj Singh Urf Kalli vs State Of Rajasthan Through P P on 8 January, 2019
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 498/2013
Brajraj Singh @ Kalli S/o Pancham Singh, by caste Thakur, R/o
Village Sevar, PS Bari, District Dholpur
(Accused confined in District Jail, Dholpur)
----Appellant
Versus
State Of Rajasthan Through P P
----Respondent
For Appellant(s) : Mr.NA Naqvi, Sr.Adv. with Mr.Nawab
Ali Rathore
For Respondent(s) : Mrs.Sonia Shandilya, Public
Prosecutor
HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA Judgment 08/01/2019 This appeal has been filed against the order dated 20 th May, 2013 passed by the Additional Sessions Judge, Dholpur in Session Case No.1/12. The trial Court convicted the accused for the offence under Sections 302 and 307 IPC and sentenced as under :
"U/s 302 IPC - Life Imprisonment and a fine of Rs.5000/-, in default of payment of fine further 3 months imprisonment.
U/s 307 IPC - 5 years R.I. and a fine of Rs.3000/-, in default of payment of fine further 2 months imprisonment."
It is a case where on a "Parcha Bayan" (Exhibit P - 7) of the complainant Pushpa, an FIR was registered by the Police (Downloaded on 05/06/2021 at 07:53:09 PM) (2 of 15) [CRLA-498/2013] Station Baadi, Dholpur on 15th April, 2011. In the "Parcha Bayan", it was stated that there exists a liquor shop in Hathoi, near the Panchayat. It was run by the deceased Shakti Singh. The accused Brajraj Singh @ Kalli asked the deceased Shakti Singh at around 11.00 on 15th April, 2011 to remove the liquor shop. The deceased Shakti Singh refused to remove the liquor shop. On the aforesaid, the accused Brajraj Singh @ Kalli went to the roof of his house and opened fire on Shakti Singh. The fire caused injuries on chest as well as hand of the deceased. The complainant Pushpa immediately reached to the place of occurrence. She was also subjected to firearm injury. The pellets passed through her left hand. In the occurrence, Shakti Singh died. After the occurrence, many persons reached to the place. In the meantime, the police also reached.
After registration of the FIR, investigation was caused by the police and finding evidence, charge sheet was filed against the accused for the offence under Sections 302, 307 IPC and Section 3/25 of the Arms Act, 1959 (for short "the Act of 1959"). The case was then committed to the Court of Session, as it was exclusively triable by it. The trial Court thereupon heard the case for framing of the charges and, thereupon, framed it for the offence under Sections 302, 307 IPC and Section 3/25 of the Act of 1959. The charges were explained to the accused and when they were denied, trial commenced.
In the trial, the prosecution produced seventeen witnesses apart from twenty documents to prove its case. The statement of the accused was recorded under Section 313 Cr.P.C. He produced eighteen documents in defence. After marshalling the evidence, the trial Court convicted the accused for the offence (Downloaded on 05/06/2021 at 07:53:09 PM) (3 of 15) [CRLA-498/2013] under Sections 302 and 307 IPC while acquitting him for the offence under Section 3/25 of the Act of 1959.
Learned counsel for the appellant submits that before the occurrence, as described by the complainant Pushpa in her "Parcha Bayan", the complainant party came and gave beating to the accused party. Many members of the accused party received injuries, which were even grievous in nature, as is coming out from the injury report produced in defence. The fire was out of self-defence. It has been ignored by the trial Court while convicting the appellant for the offence under Sections 302 and 307 IPC. It is further stated that from the postmortem report as well as the statement of PW - 14 Dr.Rajesh Mittal, the firearm injuries to the deceased were not out of the gun said to have been used by the appellant. The recovery of the arm at the instance of the appellant is twelve bore gun. As per the postmortem report and the statement of PW - 14 Dr. Rajesh Mittal, pellet went through the body, thus impression of two injuries exist out of one shot. The second injury is out of exit of pellet. The aforesaid is not possible out of twelve bore gun. Accordingly, the prosecution failed to prove use of twelve bore gun by the appellant.
It is also stated that the eye-witness and injured witness were interested witnesses being relatives of the accused. The prosecution withheld the independent witnesses though made statements under Section 161 Cr.P.C., to show that after scuffle between two parties, fire was opened in self-defence. The appellant thus produced the statements of the witnesses recorded under Section 161 Cr.P.C. to prove that fire was out of self- defence, thereby, the appellant could not have been convicted for the offence under Section 302 IPC. In this regard, the name of (Downloaded on 05/06/2021 at 07:53:09 PM) (4 of 15) [CRLA-498/2013] Munna and Kishanpal has been given. They were independent witnesses but were not produced despite being named in the FIR. The name of Kalyan Singh, Saheb Singh, Deewan Singh, Dharmendra Singh and Sunita was also given, whose statements under Section 161 Cr.P.C. were recorded, but, were not produced by the prosecution in evidence. Their statements were relevant and sufficient to prove that fire was opened in self-defence, accordingly a case for conviction for the offence under Section 302 IPC is not made out.
It is, lastly, contended that a case under Section 307 IPC is also not made out. The complainant Pushpa had not received any injury from the firearm and, at the same time, despite injury to the accused party, it remained unexplained by the prosecution. In absence of it, the right of self-defence gets proved because no separate evidence was required to be led by the accused for it.
A reference of the judgments of the Apex Court in the case of Mohinder Pal Jolly Vs. State of Punjab, AIR 1979 SC 577 and Darshan Singh Vs. State of Punjab & Anr., (2010) 2 SCC 333 has been given. Therein, the plea of self-defence was accepted on probabilities and preponderance of evidence. A prayer is accordingly made to accept the plea of self-defence. The prayer is accordingly to set aside the order passed by the trial Court and to acquit the appellant as a consequence thereof.
Learned Public Prosecutor has opposed the arguments of learned counsel for the appellant. It is stated that on a "Parcha Bayan" of the complainant Pushpa, an FIR was registered. After investigation, the case was found and, accordingly, the charge sheet was filed. In the trial, the prosecution could prove its case, (Downloaded on 05/06/2021 at 07:53:09 PM) (5 of 15) [CRLA-498/2013] thus the trial Court convicted and sentenced the accused-appellant for the offence under Sections 307 and 302 IPC. The challenge to the order of conviction is in reference to the plea of self-defence. The argument for it has been made in contradiction to the other arguments. For self-defence, the accused-appellant has stated about beating to the accused party by the complainant party and on it, the firearm was used. In the aforesaid statement, the use of firearm by the appellant is admitted, whereas, in contradiction, learned counsel for the appellant has questioned use of twelve bore gun by the accused. Two arguments cannot stand in contradiction. Learned counsel for the appellant has to come out with one plea to make out the defence or to demolish the case set out by the prosecution but not by taking contradictory pleas. It is also stated that the prosecution has produced eye-witnesses. It may be that they are relatives of the deceased, but, merely for that reason, their testimony cannot be disbelieved.
So far as the allegation for non-production of two witnesses, namely, Munna and Kishanpal referred in the FIR is concerned, the Investigating Officer was not cross-examined and, otherwise, the witnesses produced by the prosecution were sufficient to prove their case. In view of the above, the plea that the prosecution produced only interested witnesses may not be accepted. To support the arguments, a reference of the judgment of the Apex Court in the case of Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 has been given.
It is further stated that the prosecution case has been proved not only by the eye-witnesses but other evidence, which has corroborated their version. The firearm used in the occurrence was recovered on disclosure of the accused under Section 27 of (Downloaded on 05/06/2021 at 07:53:09 PM) (6 of 15) [CRLA-498/2013] the Indian Evidence Act, 1872 (for short "the Act of 1872"). The three empty cartridges were recovered from the roof of the house belonging to the appellant. The empty cartridges and twelve bore gun were sent for the FSL report. In the FSL report, the firearm was found to be serviceable and used for fire. The three empty cartridges were out of firearm recovered on disclosure of the accused. The aforesaid evidence was led by the prosecution to corroborate the oral evidence. It is apart from production of the postmortem report and the statement of PW - 14 Dr.Rajesh Mittal. The injuries to the deceased were out of the firearm. The entry and exit of the pellet has been shown.
In view of the above, no pellet was recovered from the body. It has proved use of firearm by the appellant and it was not only fired on the deceased but even on the injured Pushpa, as is proved from her injury report. In view of the above, it is not only that the prosecution could produce the eye-witnesses but produced other evidence to show involvement of the appellant to cause the occurrence. It is at the time when the deceased refused to remove the liquor shop on a direction of the appellant. When he refused to remove the liquor shop, the appellant went to the roof of his house and opened fire. It is not only one fire but he had fired three times, out of which, two gunshot injuries were received by the deceased and one by Pushpa. Taking into consideration the aforesaid, the trial Court has rightly convicted the appellant for the offence under Sections 307 and 302 IPC.
So far as the injuries to the accused party apart from the plea of self-defence are concerned, no evidence was led to show that before fire, the accused party was beaten by the complainant party. In absence of an evidence to this effect, the (Downloaded on 05/06/2021 at 07:53:09 PM) (7 of 15) [CRLA-498/2013] injury report of the accused party remains of no relevance. The accused should have brought evidence to show that there was a scuffle or beating to the accused party before opening of the fire but he has failed.
A reference of the statement of the witnesses, recorded under Section 161 Cr.P.C., has also been given. None of the witnesses was produced by the prosecution or called by the appellant in reference to their statements under Section 161 Cr.P.C. In absence of it, their statements, recorded by the police, cannot be read as substantial piece of evidence.
A reference of Section 162 Cr.P.C. has also been given to show as to what extent the statement under Section 161 Cr.P.C. can be used. To support the argument, learned Public Prosecutor has cited the judgment of the Apex Court in the case of V.K.Mishra & Anr. Vs. State of Uttarakhand & Anr., (2015) 9 SCC 588. Para Nos.15 to 18 of the said judgment have been referred specifically apart from reference of Section 145 of the Act of 1872. The prayer is accordingly not to accept the arguments of learned counsel for the appellant in reference to Section 161 Cr.P.C.
It is also stated that that argument of learned counsel for the appellant that firearm recovered on disclosure of the appellant was not used in the occurrence is in ignorance to the argument of self-defence. A reference of the statement of PW - 14 Dr.Rajesh Mittal has been given for the aforesaid to show that in the cross-examination, he has admitted that twelve bore gun was not used in the occurrence. In fact, learned counsel for the appellant has misread the statement of the said witness. What has been stated is that pellet out of twelve bore gun was not (Downloaded on 05/06/2021 at 07:53:09 PM) (8 of 15) [CRLA-498/2013] recovered from the body. It is not that weapon was not used. The Doctor is otherwise not an expert to opine as to which arm has been used. Accordingly, the argument in reference to the statement of PW - 14 Dr.Rajesh Mittal may not be accepted, rather, finding recorded by the trial Court may be confirmed by dismissing the appeal, as the prosecution could prove its case beyond doubt.
We have considered rival submissions made by learned counsel for the parties and scanned the record carefully.
The facts pertaining to the case have been narrated by us.
The prosecution has come with the genesis of the occurrence. For the aforesaid, the statement of PW - 12 Pushpa is relevant. An FIR was registered on a "Parcha Bayan" of the said witness. It is stated that the accused asked the deceased to remove the liquor shop and on its refusal, the accused went to roof of his house and opened fire on the deceased. The deceased received two injuries while Pushpa received one injury out of fire. The statement of the said witness has been corroborated and supported by PW - 6 Saraswati, who also reached to the place of occurrence. In view of the above, the prosecution could prove that on refusal of the deceased to remove the liquor shop, fire was opened by the accused.
The prosecution has further led evidence to prove their case by producing the eye-witnesses to the occurrence. It is PW - 6 Saraswati, PW - 12 Pushpa and PW - 13 Girraj. Their presence at the place of occurrence has not been doubted by the appellant, though, it is urged that the other eye-witnesses were not produced by the prosecution despite being named in the FIR. The (Downloaded on 05/06/2021 at 07:53:09 PM) (9 of 15) [CRLA-498/2013] argument aforesaid has been raised in ignorance of the fact that witnesses produced by the prosecution were sufficient to prove their case. In the proof of the case, number of witnesses are not relevant. If the other eye-witnesses have not been produced, it would not affect the testimony of the witnesses produced by the prosecution. Accordingly, we find that the prosecution has produced eye-witnesses to prove the occurrence at the instance of the appellant.
Learned counsel for the appellant has further submitted that PW - 6 Saraswati, PW - 12 Pushpa and PW - 13 Girraj were interested witnesses.
We find no force in the aforesaid argument in reference to the judgment cited by learned Public Prosecutor in the case of Upendra Pradhan (supra). Merely for the reason that the witnesses are relatives of the deceased, their testimony cannot be disbelieved. The presence of those witness on the place of occurrence has not been questioned by the appellant. In view of the above, the argument that interested witnesses were produced by the prosecution, their testimony cannot be disbelieved or it cannot be a ground to acquit the appellant from the offences. It is moreso when, the prosecution has led their evidence to corroborate the statements of the eye-witnesses. The Apex Court in the case of Upendra Pradhan (supra) has held that testimonies of interested witnesses are of great importance. No man would be willing to spare the real culprit and frame an innocent person. Taking into consideration the aforesaid, we are unable to accept the argument of learned counsel for the appellant that only interested witnesses have been produced, thus their testimonies should not have been believed.
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(10 of 15) [CRLA-498/2013] The prosecution has further produced evidence about recovery of arm. It was on disclosure of the appellant. Exhibit P - 5 is disclosure memo of the accused about twelve bore gun. The recovery memo of country made twelve bore gun is Exhibit P - 3. The prosecution has further produced seizure memo of empty cartridges, which is Exhibit P - 14. It was taken from the place of the occurrence, i.e., the roof belonging to the house of the accused. The empty cartridges and firearm were sent to the Armourer. His opinion was also produced by the prosecution and it is Exhibit P - 2. The documents aforesaid have been proved by PW
- 2 Goverdhan Singh (the Armourer) and PW - 7 Rajesh Kumar (the Investigating Officer). The recovery of articles has also been proved by PW - 3 Jaidev Singh and PW - 11 Shankar Singh, whose presence has been shown at the time of recovery, thus the prosecution even proved the seizure memo as well as recovery of the articles, referred to above. This corroborates the prosecution case regarding use of arm and its recovery at the instance of the accused. The firearm and cartridges were sent to the Armourer and even for the FSL report. The FSL report is Exhibit P - 18 and Exhibit P - 19. It proves not only use of firearm in the occurrence but it was fired.
The articles, so recovered, were kept in "Malkhana" and to prove it, "Malkhana" register Exhibit P - 18A was produced and proved in evidence. In view of the above, it is not only that recovery of arm was made on disclosure of the accused but there exists recovery of three empty cartridges coupled with the opinion of the Armourer and FSL report to prove its use.
The prosecution even produced the postmortem report (Exhibit P - 15) to show nature of the injuries. The injuries (Downloaded on 05/06/2021 at 07:53:09 PM) (11 of 15) [CRLA-498/2013] described to the person of deceased are out of firearm. The hit was so strong, thus pellet entered and exited from the body. The entry and exit point have been described by PW - 14 Dr.Rajesh Mittal in his statement. In the cross-examination, he has stated that no pellet, out of twelve bore gun was found in the body.
The Doctor cannot otherwise be said to be an expert to describe the arm used in the occurrence. He can refer to the nature of the injuries, i.e., as to whether it is out of firearm, sharp edged or by blunt object, but, he cannot definitely state about type of the weapon used for it. Accordingly, we are unable to accept the plea raised by learned counsel for the appellant in reference to the cross-examination of PW - 14 Dr.Rajesh Mittal.
Learned counsel for the appellant has given reference to the documents produced in defence, which are largely statements of few witnesses, recorded under Section 161 Cr.P.C. during the course of investigation and injury report of the accused party.
We are unable to pursue ourselves in reference to the statements of the witnesses recorded under Section 161 Cr.P.C. to accept the plea of self-defence. It is when none of the witnesses produced by the prosecution has stated about scuffle or beating to the accused party prior to opening of fire. The accused did not produce the witnesses, whose statements were otherwise referred in defence, despite it is only under Section 161 Cr.P.C. In view of the above, it cannot be said that injury to the accused party was out of some incident. It is moreso when, the question aforesaid was raised to the witnesses produced by the prosecution and they denied about any quarrel or beating to the members of the accused party out of some occurrence. The injury report of the (Downloaded on 05/06/2021 at 07:53:09 PM) (12 of 15) [CRLA-498/2013] appellant as well as the statement under Section 161 Cr.P.C. cannot be accepted for a case of self-defence.
Learned counsel for the appellant has made reference of the judgment of the Apex Court in the case of Mohinder Pal Jolly (supra) to prove that plea of self-defence can be accepted even on probabilities.
The argument has been raised in ignorance of the fact that burden to prove a case of self-defence lies on the accused. The appellant failed to bring evidence to prove the case of self- defence. The statements under Section 161 Cr.P.C. cannot be said to be a substantial piece of evidence to prove the case. Para Nos.15 to 18 of the judgment of the Apex Court in the case of VK Mishra & Anr. (supra) otherwise answer the issue. It is to what extent and in what manner, the statement under Section 161 Cr.P.C. can be used. The said paras are quoted hereunder for ready reference :
"15. Section 161 Cr..P.C. titled "Examination of witnesses by police" provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 Cr..P.C. can be used at any trial are indicated in Section 162 Cr.P.C. Section 162 Cr.P.C. reads as under:
162. Statements to police not to be signed-Use of statements in evidence.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at (Downloaded on 05/06/2021 at 07:53:10 PM) (13 of 15) [CRLA-498/2013] any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation.- An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
16. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act;
(ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary. (Downloaded on 05/06/2021 at 07:53:10 PM)
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17. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C.
"if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross- examination and also during the cross-examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Section 145 of the Evidence Act reads as under:
145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
The issue has been decided by the Apex Court not only in reference to Section 161 Cr.P.C. but Section 162 Cr.P.C. apart from Section 145 of the Act of 1872. As per Section 162 Cr.P.C., the statements recorded under Section 161 Cr.P.C. can be used for limited purpose. It is held that statements recorded during the course of investigation are not substantial piece of evidence, but, can be used primarily for limited purpose, i.e., for contradicting such witness by the accused under Section 145 of the Act of 1872. (Downloaded on 05/06/2021 at 07:53:10 PM)
(15 of 15) [CRLA-498/2013] In view of the above, we are unable to accept the plea of learned counsel for the appellant in reference to the statement of witnesses, recorded under Section 161 Cr.P.C. They were not produced either by the prosecution or by the accused. Accordingly, we do not find that a case of self-defence is made out or proved by the appellant, though, burden lies on him.
We have already referred genesis of the occurrence. It was initiated by the accused. He asked the deceased to remove the liquor shop and when it was refused, he went on the roof of his house and opened fire. The fire is not from an open field but from the roof. In view of the above also, a case of self-defence is not made out. In view of the above, we find no substance in any of the arguments of learned counsel for the appellant.
Accordingly, the appeal fails and is dismissed. The record be sent back to the trial Court.
(BANWARI LAL SHARMA),J (M.N. BHANDARI),J
Preeti/32
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