Rajasthan High Court - Jaipur
Prem Singh And Anr. vs State Of Rajasthan on 15 May, 2006
Equivalent citations: RLW2006(3)RAJ2338, 2006(4)WLC167
Author: Prem Shanker Asopa
Bench: Prem Shanker Asopa
JUDGMENT Shiv Kumar Sharma, J.
1. Prem Singh and Manohar Singh, the appellants herein, and one Sayar Singh were put to trial in Sessions Case No. 101/2001 (116/1998) before the learned Additional Sessions Judge (Fast Track) Jhunjhunu. Learned trial Judge vide judgment dated November 26, 2001 convicted the appellants Prem Singh and Manohar Singh for the offence Under Section 302/34 IPC and sentenced them to suffer imprisonment for life and fine Rs. 5000, in default to further suffer three months rigorous imprisonment.
2. According to prosecution story Nahar Singh (now deceased)was beaten up in the intervening night of June 4 and 5 1998 in village Dhamora. When Inder Singh real brother of Nahar Singh, received information of the incident in the morning of June 5, 1998, he rushed to village Dhamora and found Nahar Singh lying injured behind the shops of Jagdish Singh Shekhawant. On being enquired Nahar Singh informed that Manohar Singh, Prem Singh (appellant) and five seven other persons inflicted blows on his person with Lathis and Iron-rods and thrown him behind the shop of Jagdish Shekhawat. Whole night he was crying but nobody came near him. Inder Singh thereafter lodged written report at 10 AM with the police station Gudha Gorji where a case was registered Under Sections 147, 341 and 323 IPC and investigation commenced. During the course of investigation injured Nahar Singh succumbed to his injuries and Section 302 IPC was added. Dead body of Nahar Singh was subjected to autopsy, statements of witnesses were recorded by the police, necessary memos were drawn and the appellants were arrested. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Jhunjhunu. Charge Under Section 302 read with 34 IPC was framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. In the explanation Under Section 313 Cr.P.C. the appellants claimed innocence and one witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
3. We have heard learned Counsel for the parties and with their assistance weighed the material on record.
4. Death of Nahar Singh was undeniably homicidal in nature. As per post mortem report (Ex.P. 13) following antemortem injuries were found on the dead body:-
1. Diffuse swelling all over (1) foot and ankle on exploration fracture of (1) medial rnalleolus
2. Contusion 8x5 cm on (R) ankle medial side on exploration hematoma of same size
3. Contusion 10 x 3 cm (R) leg middle 1/3 on exploration hematoma of same size.
4. Contusion 10x3 cm with an abrasion of 1 cm diameter over it on (R) leg on exploration hematoma of same size.
5. Diffuse swelling all over (1) hand dorsum side. On exploration fracture of 3rd and 4th metacarpal bones.
6. Diffuse swelling all around lower 1/3 of (1) forearm, on exploration fracture of lower end of (1) radius.
7. Diffuse swelling all over (R) hand dorsum side, on exploration fracture of 2nd metacarpal bone.
8. Contusion 20 x 8 cm in (1) scapular & interscapular region, on exploration fracture of medial border of scapula same.
9. Contusion 15 x 6 cm on (1) side of back of chest placed obliquely in lower 1/2 of chest on exploration fracture of 8th and 9th rib at lateral angle seen.
10. Contusion 8 x 3cm on (1) side of back of chest just below injury No. 9 on exploration fracture of 10th rib at lateral angle on further exploration (1) lung found collapsed and there is a laceration of 3 x 3 cm in (1) pleura and lung lower lobe lateral side.
11. Contusion 15 x 3 cm on back of (R) side of chest placed horizontally.
12. Contusion 12 x 3 cm in (R) inter scapular region.
13. Contusion 10 x 3 cm in (R) scapular region.
14. Fullness all over upper part of abdomen with two abrasions each of 5 x 2 cm in (R) Hypocondrium.
15. Abrasion 2x2 cm in (R) Hypocondrium about 2 cm below injury No. 14 on exploration of abdomen abdominal cavity full of blood spleen found lacerated on postero lateral surface in an area of 2 x 2 cm
16. Abrasion 2 x 1 cm on (R) side of chest lower part.
17. Abrasion 3 x 0.5 cm at (R) costal margin.
In the opinion of Dr. Sudhindra Bhargava (PW. 8), who conducted autopsy on the dead body, the cause of death was acute shock due to injuries No. 9, 10 and 14 which were sufficient to cause death in ordinary course of nature.
5. The prosecution case centered round the testimony of Mahipal Singh (PW. 1), Inder Singh (PW. 2), Risal Singh (PW. 3) and Rohtash Singh (PW. 11). In his deposition Inder Singh (PW. 2) stated that in the morning of June 5, 1998 one Jai Chand informed, him that Nahar Singh was lying injured behind the shops of Jagdish Shekhawat. He (Inder Singh) then came back to his house where he found Risal Singh sitting who told him that while he (Risal Singh) and Nahar Singh were returning back from village Dhamora and passing near the house of Prem Singh, suddenly Nahar Singh said that he was thirsty and requested Prem Singh, Sayar Singh and Manohar Singh who were standing there to arrange for drinking water, Prem Singh did not accede to his request and picked up quarrel. Prem Singh, Sayar Singh and Manohar Singh gave beating to Nahar Singh and injured him. Inder Singh (PW. 3) rushed to village Dhamora where his brother Nahar Singh told him that he was beaten up by Prem Singh, Sayar Singh and Manohar Singh. Injured Nahar Singh was removed by Inder Singh to Gudha hospital in the jeep, but they were asked to lodge the report. The informant Inder Singh along with injured Nahar Singh then went to the police station and submitted the report and came back to Gudha Hospital from where they were first referred to Titanwad hospital and then to Jhunjhunu but on the way to Jhunjhunu Nahar Singh died.
6. In his deposition Risal (PW. 3) stated that on June 4,1998 he and Nahar Singh had gone to village Dhamora. At that time he had consumed liquor and was under intoxication. While they were passing near the house of Prem Singh, he saw Prem Singh, Manohar Singh and Sayar Singh armed with Lathis and Iron-rods. Prem Singh then inflicted lathi blow on his person and Manohar Singh gave blow on the abdomen of Nahar Singh, as a result of which he fell down. Thereafter all the three started beating Nahar Singh. He (Risal) somehow escaped and got himself hidden in a Bada. After beating Nahar Singh they pushed him behind the shops of Jagdish. Since liquor dominated his senses he slept and woke up on the next morning. He straightway went to Inder Singh and informed him about the incident. Statement of Risal was however recorded by the police on June 8, 1998.
7. Rohitash Singh (PW. 11), who was posted as Head Constable at Police Station Gudha, deposed that since on June 5, 1998 Circle Inspector had gone out, he was Incharge of Police Station Gudha. On that day Inder Singh submitted a written report (Ex. P. 2) to him, on the basis of which, he got the formal FIR registered and recorded the statements of Nahar Singh Under Section 161 Cr.P.C. (Ex. P. 20). In the cross examination, Rohitash Singh stated that he recorded the statement of Nahar Singh at 10.45 AM. but in the Daily Rojnamcha he did not made entry about this. He also admitted that he did not incorporate in the statement as to what was the condition of injured Nahar Singh.
8. Mahipal Singh (PW. 1), who was posted as Constable in the Police Station Gudha on June 5, 1998, in his cross examination stated that he proceeded along with injured Nahar Singh around 8- 8.30 AM from police station Gudha in a jeep. Nahar Singh was unconscious at that time. Immediately after the injured reached at police station he was referred to the Hospital. Mahipal Singh along with the injured Nahar Singh reached Jhunjhunu at 10 AM.
9. Dr. Jai Singh (PW. 12) deposed that on June 5, 1998 he posted as Medical Officer in PHC Titanwad. On that day at 10.45 AM Rohitash Constable of PS Gudha came to him with injured Nahar Singh, who was unconscious. Dr. Jai Singh referred Nahar Singh to BDK Hospital Jhunjhunu.
10. The appellants examined Dr. Srikrishna Pathak (Dw. 1) as defence witness. Dr. Pathak, before his retirement, worked as Head of the Department in SMS Hospital Jaipur. Having scanned the post mortem report of the deceased Dr. Pathak categorically deposed that after four severe injuries it was not possible for Nahar Singh to speak.
11. Factual situation that emerges in the instant matter, may be summarised thus:-
(i) Risal (PW. 3), the only eye witness examined by the prosecution, deposed that he was under intoxication while he had gone to village Dhamora.
(ii) Risal although stated that he was given beating, his deposition did not get medical corroboration.
(iii) Consumption of liquor controlled the senses of Risal therefore after he remained asleep in the bada whole night and woke up only on the next morning.
(iv) Risal did not inform anybody about the incident and he straightway went to his village. Risal even did not go to police and his statement Under Section 161 Cr.P.C. got recorded only on June 8, 1998, i.e. after four days of the incident.
(v) Inder Singh (PW. 2), real brother of deceased Nahar Singh, did not mention in the written report that prior to going to village Dhamora he already met Risal in his house.
(vi) As per Head Constable Rohitash (PW. 11) he recorded the statement of Nahar Singh at 10.45 AM on June 5, 1998 whereas according to Constable Mahipal Singh (PW. 1) he took Nahar Singh from police station to Gudha in a jeep to hospital Gudha around 8-8.30 AM at that time Nahar Singh was unconscious.
(vii) Dr. Jai Singh (PW. 12) deposed that on June 5, 1998 at 10.45 AM Rohitash Constable of Police Station Gudha came to him with injured Nahar Singh, who was unconscious.
(viii) Dr. Shri Kirshna Pathak (DW. 1.) deposed that after having sustained four severe injuries it was not possible for Nahar Singh to speak.
12. The evidence adduced by the prosecution may be divided into two parts:-(i) Ocular testimony of Risal Singh (PW. 3) (ii) Dying declaration (Ex. P. 20) recorded by Rohitash Singh (PW. 11).
13. On examining the testimony of Risal Singh from the point of view of trustworthiness we find him unreliable. His conduct in not informing the incident to the villagers of Dhamora appears to be highly unnatural. How could a person whose senses were fully controlled by liquor, give a minute details of the incident. It is also inexplicable as to why statement of Risal was recorded after four days of the incident.
14. It is well settled that oral dying declaration is an important piece of evidence but it should be free from all infirmities. In Ramsai v. State of Madhya Pradesh 1994 Cri. L.J. 138 the Hon'ble Supreme Court noticed serious infirmities in the testimony of witnesses and observed as under:-(Para 4)
4. As mentioned above the prosecution examined PWs. 2, 3, 4, 5, 17, 28 and 29 and also relied on the evidence of PWs. 13, 18, 20 and two others who spoke about the dying declaration. Out of those direct witnesses the trial Court relied only on the evidence of PW. 29 and discarded others. The High Curt discarded the evidence of PW. 29 also. Therefore, we are left only with the evidence of PWs. 18 and 20 who spoke about the alleged oral dying declaration. PW. 18is a Kotwar of village for the last 36 years. He deposed that on the day of occurrence he was informed that A-l and Ors. have broken the new house of Daya Prasad and killed the deceased. Thereupon PW. 18 went to the house of PW. 20 another Kotwar and both of them came to the place of occurrence. They found the deceased was alive with injuries all over the body. Then on being questioned the deceased told that A-1 to 1-3 and other persons assaulted him. In the cross examination he admitted that they were examined on the 3rd day only. He did not inform anybody about the alleged oral dying declaration and it is only on that day he disclosed to the Police Inspector. There is no explanation as to why he has not informed anybody earlier. He admitted in the cross examination that the deceased was not speaking clearly and he was vomiting at that time. He further added that the tongue of the deceased was out of the control. To the same effect is the evidence of PW. 20. He also came forward with this version only on Monday. Now we have the evidence of one more important witness PW. 26 who is the Sarpanch of the village. He deposed that after coming to know about the occurrence, he went to the place of the occurrence and found the deceased lying on the cot and he stated that he did not inquire anything from the deceased. He further stated that PWs. 18 and 20 were present. He does not say that either of them mentioned anything about the oral dying declaration. As a matter of fact he asked PW. 20 to go to the Police Station and accordingJy he left even at that time. PW. 20 did not inform him the name of the appellants said to have been mentioned by the deceased. These are all serious infirmities which we find in the evidence regarding the oral dying declaration. The medical, evidence also shows that it is highly doubtful whether the deceased could have made any such statement. The oral dying declaration is no doubt an important piece of evidence. But it should be free from all infirmities. There is no other corroboration worth mentioning. Further as mentioned above the conduct of PWs. 18 and 20 is highly unnatural and they say that for three days they did not inform anybody about the alleged oral dying declaration. We find that it is highly unsafe to base the conviction on the oral dying declaration because of the many infirmities pointed out. Accordingly we give the benefit of doubt to the appellants. Their convictions and sentences are set aside. If they are on bail their bail bonds shall stand cancelled. The appeal is allowed accordingly.
15. In Mohar Singh v. State of Rajasthan 1998 9 SCC 654, the Apex Court indicated thus:- (Para 4)
4. As regards the dying declaration stated to have been made by the deceased to his wife, it appears that the deceased could not have made such a dying declaration in view of the number of injuries received by him. The evidence of Gomti, PW. 7 is that when she reached the place of incident, her husband Duni Ram was in a position to speak and when she enquired, he gave the names of the . assailants. However, she admitted that immediately after saying so, her husband had became unconscious. No other witness has spoken about this dying declaration. The High Court was therefore right in not placing reliance upon the dying declaration.
16. In the instant case as already noticed there are serious infirmities in the statements of Inder Singh, Rohitash Singh and Mahipal Singh. Inder Singh deliberately did not mentioned the fact that Risal Singh had already met him. An attempt was made to establish that written report was oral dying declaration of Nahar Singh. Thereafter again Head Constable Rohitash Singh introduced statement of Nahar Singh (Ex. P. 20) recorded at 10.45 AM. Whereas according to Constable Mahipal Singh, Nahar Singh was unconscious at 8-8.30 AM. Dr. Jai Singh also stated that at 10.45 AM when Rohitash Constable came t him with Nahar Singh, Nahar Singh was unconscious. In view of these glaring infirmities we find ourselves to place reliance on the alleged oral dying declaration of Nahar Singh.
17. For these reasons, we allow the appeal and set aside the conviction and sentence rendered in the impugned judgment dated November 26,2001 by the learned trial Judge. We acquit the appellants Prem Singh and Manohar Singh of the charge Under Section 302/34 IPC. The appellants Prem Singh and Manohar Singh, who are in jail shall be set at liberty forthwith if not required to be detained in any other case.