Rajasthan High Court - Jaipur
Hotam And Ors. vs State Of Rajasthan on 17 February, 2004
Equivalent citations: 2004CRILJ3277, RLW2004(2)RAJ1352, 2004(2)WLC69
JUDGMENT Shiv Kumar Sharma, J.
1. The three appellants namely Hotam, Veero @ Virendra nad Kamal Singh were the accused on the file of learned Special judge (Dacoity Affected Area) Bharatpur bearing Sessions Case No. 23/1995. They were found guilty, convicted and sentenced as under:-
1. Hotam &
2.Veero @ Virendra U/s. 302/34 IPC Each to suffer Imprisonment for life and fine of Rs. 1000/- in default to further suffer 3 months simple imprisonment.
U/s. 307 IPC Each to suffer Rigorous Imprisonment for five years and fine Rs. 500/- in default to further suffer simple imprisonment for 1 month. U/s. 3/25 Each to suffer Imprisonment for two years and Arms Act fine of Rs. 200/- in default to further suffer simple imprisonment for 15 days. 3. Kamal Singh: U/s. 302 IPC To suffer Imprisonment for life and fine of Rs. 1000/- in default to further suffer 3 months simple imprisonment. U/s. 307/34 IPC To suffer Rigorous Imprisonment for five years and fine Rs. 500/- in default to further suffer simple imprisonment for 1 month. U/s. 3/25 To suffer Imprisonment for two years and fine Arms Act of Rs. 200/- in default to further suffer simple imprisonment for 15 days. All sentences were ordered to run concurrently. 2. The prosecution case can be compendiously stated thus:-
Written report (Ex.P-1) was lodged by informant Prabhu Dayal (PW.1) with the Police Station Nadbai on January 30, 1995 at 1.00 PM to the effect that around 7-7.30 AM on the said day when his brothers Man Singh, Moti, Kishan and his nephews Govind, Ratan and Lakhhi were sitting out side of his house encircling fire, Hotam, Kamal Singh, Veero (appellants) Khubi, Leele, Balli, Smt. Durga, Smt. Bimla, Smt. Kamla, Smt. Shiv Dei and three unknown persons came over there. Out of them Hotam, Kamal Singh, Veero and Khubi were armed with fire-arms. Kamal then opened fire with gun that hit Man Singh, as a result of which Man Singh died. Moti also left heavenly abode after receiving fire arm injuries caused by Khubi. Hotam and Veero opened fire and caused injuries to Ratan Govind and Kishan. Police Station Nadbai, on the basis of said report, registered a case under sections 147, 148, 149, 302, 307 and 323 IPC and investigation commenced. Death bodies of Man Singh and Moti were subjected to post mortem. Site was inspected. Injured persons were medically examined. The appellants were arrested and fire arms were recovered on the basis of their disclosure statements. On conclusion of investigation charge sheet was filed only against the appellants Hotam, Veero and Kamal Singh but investigation was kept pending under Section 173(8) Cr.P.C. against co-accused Khubi, Leele, Balli, Durga, Kamla and Shiv Dei. In due course the case came up for trial before the learned Special Judge (Dacoity Affected Area) Bharatpur. On June 25, 1995 charges under Sections 302, 302/34, 307 and 307/34 IPC were framed against the appellants who denied the charges and claimed trial. Three independent charge sheets under Section 3/25 Arms Act that were filed against the appellants stood amalgamated and charge under Sec. 3/25 Arms Act was also added on September 28, 1996. The appellants denied the charge. The prosecution in support of its case examined as many as 19 witnesses. Out of seven witnesses that were examined prior to framing of charge under Section 3/25 Arms Act, the appellants only called Shiv Ram Singh (PW.7) for re-examination. In their explanation under Section 313 Cr.P.C., the appellants claimed innocence. Appellant Hotam examined himself as defence witness. The learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
3. Let us now consider the nature of the evidence led by the prosecution in support of its case. To begin with there is a central evidence consisting of six eye witnesses namely Prabhu Dayal (PW.1), Kishan (PW.3), Ratan (PW.5), Govind (PW.8), Lakhhi Ram (PW.9) and Khemi (PW.10) who were allegedly present at the place of incident. The evidence is sought to be corroborated by Ved Prakash, SHO Nadbai (PW.16) who recovered fire-arms at the instance of the appellants. Ocular testimony has further been supported by the evidence of Dr. B.L. Meena (PW. 12) who performed autopsy on the dead bodies of Moti and Man Singh. As per post mortem report (Ex.P-17) Moti sustained following injuries:-
1. Multiple punctured lacerated wound more than sixty of size varying from 2 x 2cm x bone deep to 1/4 x l/4cm x muscle deep to soft tissue deep scattered at unequal distance going 1" to jaw overlapping to each other in an area & 9" x 9" in vertigo transverse axis extending from Rt.lliac region to upper l/2cm Rt. thigh covering & anterior medial & lateral aspect diverting Lt. to Rt. & anterior pasteriorly few hard mettalic round mass are palpable on lateral & post aspect and Rt. thigh upper 1/2 there is collar of abrasion on margins at places but no blackening & no tattooing seen oozing of dark blood and clotted blood present, from soft tissue 15 metallic pieces recovered. These all are suggestive of wounds of entry antr. caused by fire arm.
On opening the thigh & Rt: Inguinal region 12 mettalic pieces found lodged in deep muscle mass and fracture bony pieces of Rt. femur bone. Shaft upper part at lower & hip joint haemotoma about 800 ml. in thigh hip joint, there is lacerating of Rt. femoral blood vessels at upper part.
The cause of death was acute haemorrhogic shock brought out as the result of anti mortem injuries to Rt. femoral & Rt, illiac blood vessels due to fire arm.
The injuries sustained by Man Singh incorporated in the post mortem report (Ex.P-18) were as under:-
1. Multiple punctured lacerated wounds of size 1/4 x l/4cm x soft tissue to chest, abdomen cavity deep, scattered at unequal distance about 55 in number, collar of abrasion but no tattooing and no blackening on margins. Covering 23" x 16" area vertigo transverse axis as shown in diagram involving forehead Lt. side, nose, face, Rt. cheek neck fronto lateral aspect Rt. shoulder joint. Rt. arm Rt. forearm anterior medial & dorsally respectively, chest epigastric area, Rt. hypochondrum Lt. arm at unequal distance. Few hard pallets like mass palpable are 3 in No. preserved and sealed in soft tissue. The direction is from Rt. to left and anterior posteriorally. Deceased wearing blue jakit, blue kurta, white baniyan while dhottee and nekar are having corresponding tear marks and blood stains have been preserved sealed and handed over to concerned police. All the injuries are ante mortem in nature. These are suggestive of wounds of entry caused by fire arm.
The cause of death was acute internal haemorrhogic shock brought out as the result of anti mortem injuries to Rt. lung & liver due to fire arm.
Dr. B.L. Meena also examined the injuries received by Ratan (PW.5), Kishan (PW.3) and Govind (PW.8) and injury reports Ex.P-19, Ex.P-21 and Ex.P-9 were drawn. Radiologist Dr. D.D. Gupta (PW.18) got examine the injuries sustained by Ratan Kishan and Govind, X-rayed and submitted X-ray report Ex.P-20, Ex.P-22 and Ex.P-23.
4. Learned counsel for the appellants took us through the entire evidence and the circumstances of the case and canvassed that the complainant party was the aggressor and the alleged incident did not occur in front of the house of the informant. In fact appellant Hotam was belaboured by the complainant party-at his (Hotam) field namely 'Chari Wala Khet', while he proceeded to cut the crop of 'Chari'. Hotam sustained two incised wounds on his head but the said injuries were not explained by the prosecution. Criminal case bearing FIR No. 28/95 under Sections 147, 148, 149, 341, 323, 307 and 386 IPC was registered against the complainant party. Site Plan (Ex.D-9) that was drawn in that case demonstrates that the incident occurred in 'Chari Wala Khet' and blood of Hotam was seized vide (Ex.D-10). Injuries sustained by Hotam were dangerous to life and non-explanation of the injuries is fatal to the prosecution case. The prosecution has not presented the true version on most material part of the story. Evidential value of the prosecution witnesses does not inspire confidence and it cannot be accepted on its face value. Case law on which reliance is placed by the learned counsel shall be considered a little later.
5. Per contra, learned Public Prosecutor and learned counsel for the complainant supported the impugned judgment and urged that amongst six eye witnesses, three had sustained injuries and they were rightly believed by the court below. The ocular testimony has been corroborated by the medical evidence. There was no reason to disbelieve the recovery of fire-arms as it was based on the disclosure statements of the appellants.
6. Having scrutinised the evidence adduced at the trial we find the fact situation thus:-
(i) Informant Prabhu Dayal (PW.1) made improvements in his deposition at the trial. He stated that Hotam, Veero, Kamal and Khubi came infront of the house of informant and started hurling abuses. When Man Singh protested, Hotam exhorted to kill Man Singh, thereupon Kamal opened fire that hit Man Singh who fell down. The appellants and Khubi then made attempt to escape. Kishan, Moti Ram, Govind and Ratan chased them. They reached at the field namely 'Chari Wala Khet' belonging to Hotam. Hotam then opened fire and caused fire arm injuries to Govind. Moti Ram then caught hold of Hotam who in turn said to his sons 'Would they want to see him killed'. Hearing the words of Hotam, his son Khubi opened fire which hit Moti who fell down. Ratan and Kishan when made attempt to lift Moti, appellant Veero opened fire and caused injuries to Ratan and Kishan. Man Singh died at the spot whereas Moti breathed last on the way.
(ii) Prabhu Dayal in his cross examination deposed that he could not give minute details of the incident because he was frightened and disturbed. Statement of Prabhu Dayal stood corroborated by the evidence of injured witnesses Kishan (PW.3), Ratan (PW.5) and Govind (PW.8). Whereas Lakkhi Ram (PW.9) and Khemi (PW.10) also supported their testimony.
(iii) Blood was not found infront of the house of Prabhu Dayal, where the incident with Man Singh occurred.
(iv) Bharat Meena, the District Magistrate who accorded sanction to file charge-sheet under Section 3/25 Arms Act against the appellants, was not examined by the prosecution.
(v) Appellant Hotam (DW.1) in his deposition stated that prior to the incident he had sown 'chari' in his field but the complainant party prevented him from cutting the crop. On January 30, 1995 around 7.30 AM, when he was alone in his field and cutting the crop, 21 persons namely Man Singh, Moti Ram, Raghunath, Bhupan, Kishan, Mani Ram, Dayal, Lekhraj, Janki, Deena, Kayla, Lakhhi, Babu, Khemi, Amir, Govind, Jasmat, Shibbo, Ratan, Niroti and Prabhu came to his field. Seeing them coming Hotam ran towards his hut but was prevented by Moti Ram who pushed him down, Raghunath and Bhupan then gave blows with pharsa on his head, Khemi, Raghunath and Govind inflicted Pharsa-blows on his wrist, back and foot. Man Singh gave lathi blows on his shoulder and foot. When his sons Virendra and Kamal, who were unarmed, intervened they were also given beating. He became unconscious and his wife-Durga lodged FIR. No fire arm got recovered either from him or his sons Virendra and Kamal.
(vi) Vide injury report Ex.D-6A Hotam sustained four incised wounds measuring 6 x 1.5cm x bone cut deep on frontal region, 3.5 x 5cm x scalp on Lt.occipital region, 5 x 2cm x chest cavity on right side mid back and 7 x 2.5cm x bone deep on left hand. In addition to these injuries Hotam received one lacerated wound and five bruises.
(vii) Vide injury report Ex.D-7A Kamal Singh sustained two lacerated wounds on mouth and index finger of left hand and one bruise on right side of lower back.
(viii) Vide injury report Ex.D-8A Virendra received two abraisons on dorsum and right little and right fingers and two bruises on left scapular area.
(ix) FIR No. 28/95 under Sections 147, 148, 149, 341, 323, 307 and 386 IPC was registered against the complainant party and blood smeared soil was recovered from the field belonging to Leele Pujari. On conclusion of investigation Police submitted final report in the matter.
7. Conjoint reading of the testimony of prosecution witnesses and the statement of appellant Hotam demonstrates that the incident occurred at two places. First incident happened in front of the house of informant Prabhu Dayal where Man Singh died after sustaining fire arm injuries and second incident occurred immediately after the first, in the field of Hotam and Leele. Counsel for the appellants canvassed that as blood was not found in front of the house of Prabhu Dayal, it could not be believed that incident occurred in the manner suggested by the prosecution witnesses.
8. The first question that arises for consideration is as to whether the incident occurred in front of the house of informant Prabhu Dayal, where blood was not noticed by the Investigating Officer?
9. In Butta Singh v. State of Punjab (1), on which reliance is placed by the learned counsel for the appellants, the finding of blood near the tube well supported the defence story narrated by the defence witness Dilip Singh, who though named as prosecution witness, was dropped without proper explanation. Even after searching cross examination nothing could be brought out. As per recovery memo blood stained earth was picked up from near the tube well that stood corroborated by the evidence of Bal Mukund I.O. No blood was found from the field where the occurrence is stated by the prosecution to have occurred. Under these circumstances Hon'ble Supreme Court observed that if the incident had taken place in the field some traces of the incident would certainly have been found from the field. The prosecution had not explained the presence of blood near the tube well and the absence thereof in the field the defence version, therefore, stood corroborated from the objective evidence:
10. In the case on hand although no blood was seen in front of the house of Prabhu Dayal where Man Singh sustained fire arm injuries, the I.O. from that place recovered four empties and two bullets vide recovery memo Ex.P.10 and the recovery got effected in presence of Lakhhi (PW.9) and Ratan (PW.5). It is thus evident that some traces of the incident have been found from that place. In so far as failure of investigating officer in noticing blood at the site is concerned, their Lordships of the Supreme Court in Baboo Lal v. Sta,te of U.P. (2), indicated that mere fact that investigating officer did not notice blood at the spot on the next evening is not sufficient to conclude that the incident did not happen at that spot at all when testimony of eye witnesses showing that the incident had occurred at that place.
11. In Shiv Nath Singh v. State of U.P. (3), it was held that failure of investigating officer to collect blood stains from the site by itself is not an infirmity. Similar view was expressed in Ram Swaroop v. State of U.P. (4).
12. That takes us to the plea of right of private defence advanced by learned counsel for the appellants. It is well settled that right of private defence can be exercised only to repel unlawful aggression and not to retaliate. This right is one of defence and not of requital or reprisal. This principle is extracted from two maxims:-(1) "Law allows resort to repel force", (VIM VI REPELLERS LICET). (2) "Forwarding off an injury but not one who resorts to retaliation for any part injury, but to one who is suddenly confronted with the immediate necessity of averting impending danger not of his creation." (SED AD PROPULSANDAM INJURIAM NON AD SUMENDAN VIN-DICTUM).
13. In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify the exercise of such a right:
14. In the case on hand as already noticed that all the six eye witnesses categorically deposed that while the complainant party was sitting opposite the house of informant, the appellant along with Khubi came over there. Kamal Singh opened fire and killed Man Singh. Moti, Ratan, Govind and Kishan then chased the appellants and Khubi and reached at the field of Hotam where Moti caught hold of Hotam. Hotam exhorted his sons. Thereafter Khubi opened fire and caused injuries to Moti who died on the way while taken to the hospital. Injuries sustained by Kishan, Ratan and Govind were attributed to appellants Hotam and Veero @ Virendra. Although injuries sustained by Hotam, Kamal Singh and Veero were not explained by the prosecution, . Hotam (DW.1) explained said injuries and deposed that members of complainant party namely Raghunath, Bhupan, Kemi and Govind gave pharsa blows on his head and other parts of the body. In State of M.P. v. Mishri Lal (5), cited by learned counsel for the appellants, Hon'ble Supreme Court held that it was mandatory on the part of the prosecution to have explained the injuries sustained by the accused and non-explanation of the injuries would mean that the prosecution has not presented the true version on most material part of the story.
15. In the above backdrop we have now to find out as to what part out of the evidence represents the true and correct state of affairs and for this purpose we have to separate the grain from the chaff. It is trite that improved testimony of a witness at the trial, is not required to be rejected in its entirety. Even when major portion of the testimony of a witness is found unreliable and remaining part of the evidence inspires confidence and is sufficient to prove the guilt of the accused, conviction can be based on it. Bearing this principle in mind we have carefully scanned the testimony of injured eye witnesses namely Ratan, Kishan and Govind. Although there are discrepancies and embellishments in their evidence but on testing their testimony from the point of view of trustworthiness we find it consistent qua appellant Kamal Singh. We see no ground to discard their deposition in so far it relates to the implication of appellant Kamal Singh is concerned. All these witnesses categorically deposed that while Man Singh was sitting out side the house of informant Prabhu Dayal, Kamal Singh opened fire that hit Man Singh who died at the spot. Testimony of these witnesses gets corroboration from the medical evidence. We are thus of the view that the appellant Kamal Singh was the aggressor and was rightly convicted and sentenced under Section 302 1PC. Charges under Section 3/25 Arms Act and 307/34 IPC could not be established against him beyond reasonable doubt.
16. We however find that charges against the appellant Hotam and Veero under Sections 3/25 Arms Act, 302/34 and 307 IPC could not be proved by the prosecution as their participation in the incident as suggested by the prosecution witnesses is highly unlikely. Non-explanation of injuries sustained by appellant Hotam goes to show that the prosecution has not presented the true version about the involvement of Hotam and Veero. In regard to argument of learned counsel that co-accused Khubi could reasonably apprehend danger to the life of his father Hotam and his firing a gunshot at the point of time in defence of his father was justified, we refrain ourselves from expressing any opinion as Khubi is not before us. We clarify that whatever we have expressed in this judgment, would not have any bearing on those accused who are not before us. .
17. For these reasons we dispose of the instant appeal in the following terms:-
(i) The appeal of appellants Hotam and Veero @ Virendra is allowed and their conviction under Sections 302/34, 307 IPC and Section 3/25 Arms Act is set aside. They stand acquitted of the said charges. They are on bail, they need not surrender and their bail bonds stand discharges.
(ii) The conviction and sentence of appellant Kamal Singh under Section 302 IPC are maintained. However, he stands acquitted of the charges under Section 307/34 IPC and Section 3/25 Arms Act.
(iii) The impugned judgment of the learned trial Judge stands modified as indicated above.