Rajasthan High Court - Jaipur
Avtar Singh And Anr. vs State Of Rajasthan on 18 July, 2002
Equivalent citations: RLW2003(3)RAJ2015, 2003(1)WLC274
Bench: Bhagwati Prasad, N.P. Gupta
JUDGMENT Gupta, J.
1. These two appeals arise out of a common judgment dt. 28.3.2000 passed by the learned Addl. Sessions Judge, Raisinghnagar District Sri Ganganagar in Sessions Case No. 23/98, and therefore, both these appeals are being decided by this common judgment.
2. By the impugned judgment, the learned trial court has convicted the appellants Avtar Singh for the offence under Section 302 I.P.C. and sentenced him to imprisonment for life and and a fine of Rs. 5000/-, in default of payment of fine to undergo three months Rigorous imprisonment, Harbans Singh and Jarnail Singh have been convicted for the offence under Section 302/34 I.P.C. and sentenced to imprisonment for life Rs. 1000/-, in default of payment of fine to undergo further Simple Imprisonment for 15 days. Both the sentences of Harbans Singh have been ordered to run concurrently.
3. Brief facts of the case are that on 9.11.1997 at about 1.30 P.M. the informant Rajveer Kaur (the widow of the deceased) got her statement recorded Ex.P-1 to the Incharge, Out Post, Jetsar P.S. Vijay Nagar Dist. Sri Ganganagar deposing that Harbans Singh and his son Avtar Singh had given beating to her husband some 2-2 1/2 months back. However, subsequently that matter was compromised. She then gave out that this morning at about 10.30-11 A.M. her husband and one Satpal Pandit (P.W. 2) went from the house while she remained at the house. At about 1 p.m. one Ved Prakash informed her that her husband has been given beating, and inflicted injuries in the field of Harbans Singh whereupon she rushed to the field of Harbans Singh. On way she met Satpal Pandit running towards her to inform that when he along with the deceased were going to the Station Bugiya, at about 12.30 when they reached to the field of Harbans Singh some altercation took place between Avtar Singh and them. Thereafter Avtar Singh started giving beating to the deceased Nishan Singh with Fatti(iron rod) of the tractor's lift. In the meanwhile Avtar Singh's father Harbans Singh and nephew (Bhanja) of Harbans Singh also came who also gave beating to the deceased, the witness was threatened whereupon he ran away. According to the informant some 5 minutes back when she reached the spot she found her husband injured lying on the way leading to Murabba of harbans Singh. Victim was found unconscious, and was having bleeding injuries. According to her the three persons have caused injuries. On this report the A.S.I. went to the site and found the victim lying injured. On this report a case under Section 307/34 I.P.C. was registered and the victim was forwarded for treatment to the Government Hospital, Vijay Nagar. At about 3.15 P.M. the victim expired and thereupon the case was converted into 302/34 I.P.C. and formal F.I.R. No. 329 was recorded. After completing the investigation the police submitted charge sheet against the accused Avtar Singh and Harbans Singh for the offence under Section 302, 323/34 I.P.C. However, on 10.2.98 the complainant submitted a protest petition requesting for taking cogncance against Jarnail Singh whereupon the learned Magistrate took cogncance against all the accused person, procured the attendance of Jarnail Singh by arrest warrant, and thereafter committed the case along with there accused persons to the Court of Sessions.
4. The learned trial Court framed charges against Avtar Singh @ Jagtar Singh for the offence under Section 302, 323/34 I.P.C., against the accused harbans Singh, and Jarnail Singh framed charges under Section 302/34 and 323/34 I.P.C. The accused persons denied the charges, and claimed trial.
5. During trial the prosecution examined 11 witnesses, and tendered 29 documents in evidence.
6. The accused persons in their statement Under Section 313 Cr.P.C. denied the guilt. The accused Avtar Singh took the stand that on the date of incident when he was ploughing his field by his tractor, in the noon, the deceased came and stood in front of his tractor whereupon he stooped the tractor, and caught hold of the accused by neck, and expressed to kill him. When he tried the release, both of them fell down. It was also given out that the deceased fell on the disk (Taviya) attached behind the tractor, then the deceased got up and gave fist blows on the mouth and nose as a result of which his one tooth gave way, and he started bleeding from mouth. According to the accused when the deceased again got up to hold the accused by neck, the accused picked up the iron rod fitted above the disks, and gave one blow to the deceased whereupon the deceased toppled, and fell in the field. It is thereafter that the accused went with his tractor. The other two accused persons were said to have been not present. It was also stated that his field does not fall enroute Bugiya Railway Station nor was it time for the train. It was also given out that buses passes through mid of the village for Jetsar. Jarnail Singh took the stand that he is not the nephew of harbans Singh, nor the caused any injury. According to him some two months back only he had come to village for work as manual labour, and since for the last about few days he was working at the field of Harbans Singh therefore he has been implicated. Accused Harbans Sinqh, however, took a stand of denial, and has staled that the accused have been falsely implicated, Six documents were tendered in the evidence on the side of the defence.
7. The learned trial Court after hearing the arguments and appreciating the record convicted and sentenced the accused persons as above.
8. Being aggrieved Appeal No. 148/2000 has been filed on behalf of Avtar Singh @ Jagtar Singh, and Harbans Singh while Appeal No. 149/2000 has separately been filed by the accused Jarnail Singh. This Court vide order dt. 25.5.2000 suspended the sentence of accused Jarnail Singh while the other two accused persons Avtar Singh and Harbans Singh are in custody, Avtar Singh since beginning while Harbans Singh was on bail pending trial, and is in custody after conviction.
9. Assailing the impugned conviction, it is contended by the learned counsel for the appellants that the learned Court below has erred in placing reliance on the statement of P.W.2 Satpal. Manifold criticism was levelled against the reliability of Satpal, e.g. if he was the eye-witness then he should have accompanied the victim to the hospital, should have lodged the first report, and should have himself and gone to hospital for treatment of his injuries but nothing of this sort has been done, similarly it is contended that the story propounded by Satpal, is not corroborated from the things found on the site in Ex.P-5, inasmuch as, according to him the incident took placed on the way, while the accident is found in Ex.P-5 to have occurred in the field. According to the learned counsel the witness is falsely implicating Jarnail Singh who had never come on the scene and even the Investigating Agency had not found any offence to have been committed by him, no recovery of Kasiya was effected from Jarnail Singh. It is also contended that the description of incident as given by Satpal is not correct, inasmuch as he has improved upon the story by introducing the theory of Avtar Singh inflicting injury with hammer to Nishan Singh. Similarly the witness has disowned Nishan Singh having caused the injuries to Avtar Singh.
10. It is also contended that since Satpal Singh was not an eye witness, he police tied him down to depose to the tune of prosecution by getting the statement recorded under Section 164 Cr.P.C., and therefore, even this circumstances castes a serious doubt about the reliability of the witness. The over all frame of the argument is that since the case is said to be rested on the testimony of a solitary witness unless the witness is of sterling worth, it is not safe to place any reliance on him for finding guilty, as many as three persons, for a capital offence. In this sequence it is also contended that independent witness Major Singh was available on the site but then, in view of the fact that the story of prosecution was false, Major Singh has not been examined by the prosecution which creates a serious infirmity.
11. It is then contended by the learned counsel in any case Harbans Singh and Jarnail Singh have wrongly been held guilty for offence under Section 302/34 I.P.C. inasmuch as there is nothing to show any prior meeting of minds so as to form a common intention to cause death of Nishan Singh, and these accused persons inflicting injuries in furtherance of that common intention.
12. The next argument made by the learned counsel is that, as is clear on record that the deceased had already consumed alcohol, and Avtar Singh was all along ploughing the field, it is in this sequence that even according to the prosecution there is enmity between the parties, and therefore, it was the deceased who and come to settle the scores with Avtar Singh, and had obstructed the tractor, occupied the driver's seat, grappled with Avtar Singh, caught hold of him by neck, and in that process both of them fell down, even thereafter the deceased inflicted fist blows to Avtar Singh which resulted into loss of the one tooth, and damage to other teeth, so also bleeding injuries Avtar Singh, in that view of the matter apprehending danger to life, or limb Avtar Singh inflicted injury with iron rod available in the tractor, still the deceased continued to grapple, and time and again fell down on the disk attached to the tractor. Thus, according to the learned counsel the act of Avtar Singh was clearly protected by his right of private defence, and in any case even if it is found to be exceeded no offence under Session 302 I.P.C. could be found against the appellant Avtar Singh.
13. Yet another argument raised in this very sequence is that the prosecution has come with a false story, inasmuch as, as a matter of fact there is not way leading to Bugiya Station at that place, not was it a time for availability of the train, and that the bus for Jetsar passes through amidst the village. Thus according to the learned counsel the whole story propounded by the prosecution about the occasion for the deceased and Satpal to be available at the scene of occurrence is false one. According to the learned counsel as a matter of fact the two persons had come to the place only for the purpose of settling the scores.
14. On the other hand the learned Public Prosecutor has supported the impugned judgment, and has adopted the reasons, and logic given by the learned trial Court.
15. We have considered the submissions, have gone through the impugned judgment, and have also closely scanned the record.
16. At the outset, it may be noticed that a collective reading of the statement of P.W. 2 Satpal, and that of the appellant Avtar Singh recorded under Section 313 Cr.P.C. does make it clear that the incident did take place, and Avtar Singh did cause injury to the deceased Nishan Singh.
17. Coming to the statement of Satpal Singh and reliability of his version, having read the statement, not only as recapitulated by the learned trial Court, but also as recorded by the learned trial Court, in our view the criticism levelled by the learned counsel be sustained. Rajveer Kaur, P.W. 1 has clearly deposed that Satpal Singh had come to her house in the evening, stayed there overnight, and in the morning the along with the deceased had left the house. In the cross examination questions have been put about Satpal's acquaintance, but significantly there is no such suggestion given to P.W. 1 to show that Satpal had not accompanied the deceased when the two left the house together. In that view of the matter, we have no hesitation in believing that the deceased and P.W. 2 had left the house together in the morning, as is alleged by the prosecution. In that view of the matter when fact of the incident is not disputed, and the time of incident is in such proximity, that we have no hesitation in coming to the conclusion that at the time of incident the deceased, and Satpal were together at the place of incident. That apart as found by the learned court below that in the incident Satpal himself and also received injuries, at the hands of Harbans Singh, with iron rod which Harbans Singh had snatched from Avtar Singh, and a look at Ex.P-23 would show that Satpal had received two injuries in the incident. Thus, Satpal Singh is clearly established to be a "branded witness" as contra- distinguished from "planted witness".
18. Thus, after coming to the conclusion in favour of the prosecution, about presence of Satapal Singh at the scene of occurrence, the question remains about the reliability of the version given out by him. True it is that after the incident the witness did not accompany the victim to the hospital, nor has he lodged any first report, nor did e himself go to the hospital for treatment, but then in the totality of circumstances that by itself is not sufficient ground to discredit the entire testimony of the witness. The above circumstances, in a given case might be relevant to discredit the testimony of the witness, where the question may be as to whether the witness was present on the scene of occurrence? As against this, where it is established that the witness was present, his subsequent conduct, by itself in the circumstances of the case does not militate against the reliability of his version, so far as the incident is concerned. The time of incident is broad day light, and open place, consequently if the witness was already accompanying the victim, and after the incident was over he had rushed from the scene, and enroute met Rajveer Kaur to whom he narrated the story, the obvious conclusion is that the witness had seen the entire incident from beginning to end.
19. In the above background the first question arises as to how the incident commenced who was the aggressor, how the injuries were caused, by whom, and what offence is made out? According to this witness (prosecution) when they were passing near the field of the appellant Avtar Singh, Avtar Singh called the victim; and when the latter went to the former he started wielding blows, on which the witness intervened, and caught hold of Avtar Singh, whereupon Avtar Singh called his father, who also started inflicting blows on Nishan Singh, thereupon he left Avtar Singh, and caught Harbans Singh, thereupon Avtar Singh started inflicting blows to Nishan Singh, the harbans Singh took the iron rod from Avtar Singh and inflicted injuries on the witness, finding no way out, to save the victim he fell upon the victim, whereupon he was threatened with dire consequences, with the result that he rushed towards the village. In the meantime Jarnail Singh also came with Kasiya and inflicted injuries to Nishan Singh, and enroute he met Rajveer Kaur, and narrated the whole incident. It is significant to note that this witness has been cross-examined at a considerable length, so much so that the examination in chief being only of one and a half page, the cross-examination runs into five closely typed pages, notwithstanding this it was not suggested to this witness that the way through the filed is not the way for Railway Station Bugiya, rather only existence of alternative ways was suggested, then suggestion was given about the deceased having told to the witness on seeing Avtar Singh to settle the scores, which suggestion was denied by the witness. But then it was not suggested to him that the deceased caused any injury to the appellant Avtar Singh, resulting into loss of tooth of Avtar Singh, and receiving of injury as deposed by him, inasmuch as the track of suggestion were diverted to the place of incident being on the field or on the way, and about the details of the incident which may have been narrated by the witness to Rajveer kaur, then the cross examination was diverted towards presence of Major Singh, then lodging of the report, then the track of cross-examination was resumed by suggesting to the witness about Nishan Singh having boarded the tractor, grappled with Avtar Singh in which process both of them having fallen on the ground, and in that process Nishan Singh having given fist blow on the nose of Avtar Singh, and about Nishan Singh having tried to strangulate Avtar Singh, whereupon Avtar Singh had taken out the iron rod, and in the process of free fight Nishan Singh received injuries in the field f Harbans Singh. All these suggestions were denied by the witness. Significantly despite giving all these suggestions not a work was suggested about Avtar Singh having received the injuries e.g. the loss of tooth, and other bleeding injuries as deposed by the accused in 313 Cr.P.C. statement so as to establish the existence of right of private defence by the appellant Avtar Singh apprehending any danger to his life or limb. Significantly instead of suggesting absence of Harbans Singh, suggestions were given about availability of Harbans Singh, and the incident to have taken place in the field of Harbans Singh. Thus we are inclined to believe the commencement of incident to be in the manner as deposed by P.W.2.
20. Here itself considering the question as to who was the aggressor, the place of incident may have some relevance as contended by the learned counsel for the appellant. Therefore, at this place we have considered this aspect of the matter also. The collective perusal of statement of P.W. 2 and the Ex.P-5 does show that as a matter of fact there is no confusion or contradiction as sought to be contended by the learned counsel for the appellant. There is so close proximity between the field, and the way, that it is only a matter of comprehension of the witness on the one hand, and technical observation of the Investigating Agency on the other hand, Otherwise from the circumstances found above and found in Ex.P-5, it cannot be said that the victim had gone in the field of accused in the manner, and for the purpose, intended to be sought to be contended, and for the purpose sought to be contended, so as to even given an apprehension of existence of any right of private defence, of person or property, to the appellant Avtar Singh at the hands of the deceased and/or witness Satpal. At this very place we may consider the question of existence of motive, inasmuch as since according to the witness P.W. 1 it was established that since 2 1/2 months back another incident took place, wherein the present accused persons Avtar Singh, and Harbans Singh along with some more persons had given beating to Nishan Singh, as Nishan singh used to complain against Avtar Singh, and Harbans Singh along with some more persons had given beating to Nishan Singh, as Nishan Singh used to complain against Avtar Singh, and Harbans Singh for the theft of electricity energy, which according to the deceased was resulting into damage to the transformer, and resulting into disruption of electricity supply, and since lodging of the complaint was not liked by Avtar Singh and harbans Singh, therefore, they had given beating to the deceased, for which a first report was lodged which had been compromised. True it is that earlier incident took place, which according to the prosecution was compromised while according to the I.O. no investigation was done because that did not disclose any cogngable offence, but then the fact remains that, that time also the present accused persons Avtar Singh and Harbans Singh were the assailants, and if the deceased wanted to settle the scores, it is to be comprehended that the deceased would have gone having made some preparation, by at least carrying some weapon or arm with him, or may have gone in a body, and would not have gone in that manner, without even knowing or anticipating the risk to him.
21. Thus taking an over all view of the matter we are not inclined to accept the contention about the deceased being aggressor, so as to give rise to existence of right of private defence either of person, or property, or both to the appellant Avtar Singh.
22. In that view of the matter if the evidence of P.W. 2 is appreciated, the narration of incident is clearly established to be truthful. Of course, some suggestions have been made about omission to narrate the causing of injury with hammer to Rajveer Kaur, or some minor omissions have and there in his previous statement recorded by the policy or under Section 164, but then they, in the circumstances, do not at all effect the reliability of the witness, and the total sequence of occurrence as narrated by him. It is significant to note that not a word has been suggested to him in the direction of discrediting any part of the testimony on account of his having been tied down under Section 164 Cr.P.C. (Ex.D-3). On the other hand, minor omissions in Ex.D- 3 have been used for contradicting the witness. It may be observed here that in order to appreciate the evidence and narration of incident as given out by Satpal, we have to visualise the situation prevailing at the scene, and see as to whether it was possible for the witness to give photographic description of each of the 21 injuries sustained by the deceased, the obvious answer that we find is in the negative. We have already discussed, and believed the story of prosecution as to how the incident commenced, and it is not incident that fatal blows were received by the deceased in the beginning itself. In that view of the matter the criticism levelled against the witness Satpal cannot be accepted.
23. The learned trial court has further rightly found the evidence of P.W. 2 to be corroborated by the evidence of P.W.9 Dr. Devilal.
24. Coming to the question of non production of Major Singh, suffice it to say that it is not established on record that Major Singh had seen the incident, or the material part of the incident. Perusal of the order sheets of the Court does show that on the date when the statement of Satpal was recorded, witness Major Singh was present in the Court, and in our opinion in view of the testimony of Satpal, and omission to cross-examine him on material aspects, the learned Public Prosecutor did not think it necessary, or even proper to encumber the record of the Court by multiplying the number of witnesses, and discharged him on that day, it cannot be said that thereby any material weakness has cropped up in the prosecution case. Even a close consideration of the record shows that nothing has been suggested on the side of the appellant to any of the witness about Major Singh having seen the incident from the commencement, or about the incident to have taken place in such an otherwise manner as might have been supported by Major Singh. In that view of the matter, and in the peculiar circumstances of the case, in our opinion, non production of Major Singh is of no adverse consequence to the prosecution.
25. Having believed the version of incident as narrated by Satpal P.W. 2 on the face of the injuries found on the person of the deceased and the statement of Dr. P.W. 9 Dr. Devilal, we have no hesitation in holding that the injury No. 1 was sufficient in the ordinary course of nature to cause death, which was obviously caused by the appellant Avtar Singh with intention to cause death of Nishan Singh. In that view of the matter we do not find any error on the part of the learned trial court in convicting the appellant Avtar Singh for the offence under Section 302 I.P.C.
26. The question then remains as to what offence has been made out against the other two appellants Harbans Singh, and Jarnail Singh, and as to whether their conviction for the offence under Section 302 I.P.C. with the aid of Section 34 I.P.C. can be sustained? In our view, even on the face of evidence of Satpal, P.W. 2 the answer has to be in the negative.
27. Coming again to the evidence of Satpal, a look at his statement makes it clear that the opining of the incident was with Avtar Singh, inflicting blow on the head of Nishan Singh whereby Nishan Singh had fallen down, at that time when the witness rushed to Nishan Singh, Avtar Singh caused another blow on the head of Nishan Singh this, by this by receiving the two injuries, the victim though technically did not did, but for all practical purposes he was dead, inasmuch as looking to the seriousness of the injuries received he was clearly destined to death. According to Satpal it is at this juncture, i.e. when he caught hold of Avtar Singh, that Avtar Singh called his father Harbans Singh. Thus, it is obvious that since by that time deadly blow had already been wielded, and even after arrival of Harbans Singh, nothing has been deposed by the witness about Avtar Singh having said anything to Harbans Singh, to cause injuries to Nishan Singh, injuries to Nishan Singh, nor there is anything to show that Harbans Singh shared the intention of causing death of Nishan Singh, simply because Harbans Singh also caused other non dangerous injuries to Nishan Singh, it cannot be said that the requirements of Section 34 I.P.C. are fulfilled. In our opinion, a proper comprehension of the things show that it appears that after having disabled Nishan singh, Avtar Singh may have apprehended some retaliation at the hands of witness Satpal, and therefore, in order to seek his own protection he called his father Harbans Singh, but then from that it cannot be concluded that harbans Singh was called for causing death, or for assisting in causing death, of Nishan Singh.
28. Similarly so far as Jarnail Singh is concerned, he had come on scene much later. It is not deposed by the witness Satpal that Jarnail Singh was called by anybody, and in absence of anything to show that there was any prior meeting of mind, between Avtar Singh and Jarnail Singh, to come on the scene at a particular juncture, and for a particular purpose of causing death of Nishan Singh, in our opinion, the requirements of Section 34 I.P.C. are not fulfilled against the accused Jarnail Singh also.
29. Thus, their conviction for the offence under Section 302 with the aid of Section 34 I.P.C. cannot be sustained.
30. Since from the evidence of Satpal, it is clear that these two accuseds Harbans Singh, and Jarnail Singh also did cause injuries to Nishan Singh, but then since it is not established as to which particular injury was caused by which particular accused, and since there are simple injuries also on the person of deceased, they can be convicted only for the offence under Section 323 I.P.C.
31. The net result of the aforesaid discussion is that the appeal is partly allowed. The conviction and sentences of the appellant Avtar Singh are maintained, while Harbans Singh and Jarnail Singh are acquitted of the offence under Section 302/34 I.P.C., and instead are convicted of the offence under Section 323 I.P.C., and sentenced to the period of imprisonment already suffered by them. The accused Jarnail Singh is on bail. His ball bonds are discharged, and he need not surrender. Accused Harbans Singh be released forthwith, if not required in any other case.