Rajasthan High Court - Jaipur
Sahab Singh And Jagdish vs State Of Rajasthan on 7 May, 1992
Equivalent citations: 1992WLN(UC)101
JUDGMENT M.B. Sharma, J.
1. The learned Special Judge, Dacoity Affected Area, Bharatpur, has convicted each of the accused appellants, namely, Sahab Singh and Jagdish-father and son; respectively, under Section 302/34 IPC and 302 IPC; respectively. Each of them has been sentenced to suffer life Imprisonment and to pay a fine of Rs. 500/- (In default, further to undergo one month's rigorous imprisonment). Accused appellant, Jagdish, had also been charged under Section 3/25 of the Arms Act, but the learned Special Judge acquitted him of the said offence. Alongwith the two accused appellants; two more accused, namely, Charan Singh and Vijai Singh were tried by the learned Special Judge, but both of them were acquitted. There was fifth accused also, namely, Balblr. He was a child arid, therefore, he was tried by the children court and he too was acquitted by the children's court after his trial.
2. In village-Didwari, Police Station-Kumher, Distt. Bharatpur, there was an enclosure regionally called as (geit) as has been shown in site plan (Ex.P/4). The case of the prosecution is, that on February 10, 1987, the accused appellants unloaded a trolley of wood in the said "geit" and when deceased-Bhagwan Singh asked Sahab Singh and Jagdish (accused appellants) not to do so, they did not pay any heed to his request and continued to unload the trolley of wood. It is also the case that the accused appellants abused deceased-Bhagwan Singh and they then went to their house. The houses of the accused appellants and the deceased-Bhagwan Singh are at the distance of two hundred yeards of each other. After the aforesaid incident, as per the case of the prosecution the two accused appellants alongwith three others came to the house of deceased-Bhagwan Singh. Accused appellant, Sahab Singh, is said to have been armed with a 12-bore gun and accused appellant, Jagdish, was armed with a 'pacfera' (country made-rifle). The licence of that country-made rifle is in the name of accused appellant, Sahab Singh. Charan Singh is said to have been armed with a 'katta'. No sooner, the accused persons and others came, as per the case of the prosecution, Jagdish Singh (accused appellant) fired his country-made rifle at Bhagwan Singh (deceased) and his son Chandan Singh, some how missed and did not hit anybody but the third shot which too was fired by accused appellant, Jagdish Singh, hit Bhagwan Singh causing injury on his neck, and Bhagwan Singh died on the spot. The occurrence, as per the first information report (Ex.P/1) which was lodged by Chandan Singh (PW-2) was witnessed by Maharaj Singh, Nem Singh, Prem Singh, Mahendra Singh, Biri Singh and Brij Lal Sharma; who are said to have been at the spot and saved Chandan Singh and others.
3. Ex.P/1 was lodged and first information report was registered. But, immediately thereafter a dispute arose about the correctness of Ex.P/1, as Chandan Singh said that, in fact, he had reached the police station-Kumher and had submitted some other report which contained the names not only of two accused appellant's but also of three more persons, namely, Vijai Singh, Charan Singh and Balbir. But, as Jagmohan Singh, SHO (PW-12), is said to have told Chandan Singh that his case would be spoiled, therefore, he wrote another report in which the name of Vijai Singh, who is said to be a handicapped person because of stammering speech, was not included but still Jagmohan Singh was not satisfied as he wanted to help the accused persons and, therefore, he said that names of more than two persons as an accused could spoil the case, therefore, he (Chandan Singh) was made to give another report (Ex.P/1) and was lodged by him.
4. Before we proceed further, we may state that after having heard the learned Counsel for the accused appellants and the Public Prosecutor, who is, assisted by the learned Counsel for the complainant, we are satisfied that the conduct of Shri Jagmohan Singh (PW-12), the then SHO, is of suspicious nature. That apart, it appears to us that the first information report was lodged after investigation had been completed and chargesheet was filed as has been admitted by Jagmohan Singh (PW-12) in his statement, in the Court. Therefore, though we will refer to the investigation done by him and the statements recorded by him under Section 161 Cr.P.C. but we will not place any reliance on those proceedings of investigation and the statements, for the reasons that these appear to have not been done fairly and prima facie appear to have been done in order to help some accused persons. This prima facie inference also appears to be justified on the basis of the evidence led on behalf of the prosecution before the Court.
5. From the statements of Bhajan Lal (CW-1), Nawal Singh (CW-2), Vijai Singh (CW-3), so also the statements of Hari Ram Meena (PW-11) and Banshidhar (PW-14), we find that some of the above named witnesses have said that a wireless message has been prepared and sent the names not only of the two accused appellants but also three others, whose names are omitted from the report (Ex.P/1) which was ultimately lodged.
6. Having said above, we will proceed further with the narration of the facts. After the case was registered; site inspection was made and the deceased was sent for his post-mortem examination and Dr. Suresh Chand (PW-15) conducted the autopsy on the dead-body of Bhagwan Singh and he found the following external injuries vide report Ex.P/24:
1. Wound of entrance: Oval in shape; 1-1/2 cm x 1-1/4 cm situated in supra clavicular region (RT) near the junction of medial 2/3 and lateral 1/3, edges inverted and bruised.
2. Wound of exit: Larger than above, irregular in shape about 3- 1/2 cm x 2-1/2 cm, edges irregular of everted situated at the right back side-3cm., towards the vertibral column from the medial border of right scapula at the middle of the upper lower border of right scapula bone.
3. Direction of wound downward, inward, medially and back ward.
4. Burn wound of 1-1/2mm diameter at anterior lower level wall and middle of right side of the abdomen in front portion in between the costal margins.
5. Lacerated wound: 4cm x 1/2cm at right parietal of the head simple/blunt.
On internal examination, the doctor found that there was lacertation of right lung from middle lob and interior backward. 7cm x 5cm whole depth of lung. In the opinion of the doctor, the deceased died due to hemorrhage shock-laceration of right lung due to gun shot.
7. Though it was not shown in the first information report (Ex.P/1); it is the case of the prosecution that Damodar (PW-4) was also present at the house of the deceased and when he intervened, he too was given beating by the accused persons and he received injuries. Dr. Suresh Chand (PW-15) also examined his injuries vide injury report (Ex.P/25) and on examination, he found as many as following five injuries on his person:
1. Lacerated wound: 3-1/2cm x 1cm 1/2cm on the right parietal region of the head.
2. Contusion on the right eye.
3. Contusion on the right shoulder.
4. Contusion on the ousipital region; and
5. Contusion in the forehead.
All the Injuries were simple caused by blunt weapon. The accused persons were arrested. Whereas from the Information of the accused appellant, Sahab Singh, the licence of his country-made rifle was recovered but on the Information of accused, Jagdish, the country made rifle (weapon offence) was recovered. Charan Singh had also picked up two empty cartrides from nearby the spot and he had handed over them to the SHO (Jagmohan Singh). It may also be stated that the site was again Inspected on 1st April,'87 and seven pieces of bullet are said to have been recovered in the wall of bricks. They were also seized and sealed. These alongwith other articles including the country-made rifle were sent to the State Forensic Science Laboratory Rajasthan, Jaipur, and as per the report of the Director (Ex.P/27) two crime cartridges cases (C1 & C2) have been fired from the rifle (packet-B) and pieces of bullet from packet D could have been fired from the same rifle.
8. The defence of the accused persons in the trial Court was that it was the deceased and Chandan Singh who because of some exchange of abuses in between the ladies relating to the said "geit" for making cow-dung cakes, had come to the houses of the accused persons duly armed with the gun and injuries had been caused to Jagdish also by a firearm and if any occurrence took place; it Was in the exercise of right of private defence of person. The learned trial Court examined certain witnesses in defence.
9. The learned trial Court placed reliance on the prosecution case, in so far as the two accused appellants are concerned and then convicted and sentenced them as aforesaid but acquitted the other two accused persons who were also tried alongwith the accused appellants.
10. There cannot be any dispute that deceased-Bhagwan Singh died as a result of gun shuot injuries as the learned Counsel for the accused appellants has not raised any dispute in respect of death of deceased-Bhagwan Singh being homicidal, though he has stated that the occurrence did not/could not have taken place as relied by the prosecution witnesses. According to the learned Counsel, all the interested witnesses being relatives of the deceased cannot be relied upon. According to the counsel, at any rate, the prosecution has not explained injuries received by the accused appellant and the defence theory atleast is probable and taking into consideration the prosecution evidence qua the defence taken by the accused appellants, the case against the accused appellants, at any rate, is doubtful, and so, accused appellants are entitled to the benefit of reasonable doubt.
11. The first question is as to whether the evidence produced by the prosecution can be relied upon and whether it can be said that the witnesses who have come forward were eye witnesses and any reliance can be placed on their testimony. The case of the prosecution rests on the testimony of Prem Singh (PW1), Chandan Singh (PW-2), Nem Singh (PW-3) and Damodar (PW-4). The other witnesses who were named in the first information report have not been examined. Prem Singh (PW-1) is a cousin of deceased-Bhagwan Singh.
12. It will appear from the statement of Prem Singh (PW-1) that he has admitted that Sahab Singh (accused appellant) had filed a criminal case against him and his (Prem Singh's) brother, Mahendra Singh, and one Medu, about four or five years ago. Though he has denied that as a result of enmity he is stating falsely, but, at any rate, it can be said that he is a cousin brother of the deceased and there was also a criminal case being filed by Sahab Singh in which he was an accused alongwith his brother.
13. We will, therefore, proceed to scrutinise his statement. According to him, he was enjoying a puff of clay pipe (hukka) inside his Nohara at about 3.30 p.m. on the day of the occurrence. He admitted that the above accused appellants alongwith three others (we need hot name them because they have been acquitted) were proceeding towards house of Bhagwan Singh (deceased). Sahab Singh was armed with a 12-bore gun, Jagdish Singh was armed with a "pachfera", Chandan Singh with a 'katta' and the others were armed with 'lathies'. According to him, they while proceedings to the house of Bhagwan Singh, were hurling filthy abuses at him and when they were at a distance of about 15 steps from the house of Bhagwan Singh, they started firing and at that time Bhagwan Singh was in the Verandaha of his room, and Damodar and Chandan Singh were also with him. Hearing the abuses, as per the statement of this witness, the deceased-Bhagwan Singh, Damodar and Chandan Singh came out and Jagdish Singh (accused) fired thrice; two did not hit anybody but the third fire hit Bhagwan Singh on the left side of chest thereby he fell on the ground and died there. According to his statement, at the time when Bhagwan Singh received gun shot injuries, he was at his Chabutra and fell down there. Seeing this, Damodar is said to have come forward them, Charan Singh, Balbir and Vijai Singh (acquitted by the trial Court) are said to have given lathi blows to him.
14. Beside him (Prem Singh), the occurrence is said to have been witnessed by Nem Singh, MaharaJ singh and Mahendra Singh because they were standing side by the room of Bhagwan Singh, when Nem Singh came, and the accused persons are said to have ran away.
15. The learned Counsel for the accused appellants has subjected to scan the statement of Prem Singh. He contends that neither he (PW-1) nor any witness has come out about true genesis of the occurrence. He could not explain the incident as alleged by him or by the prosecution. A look at site plan (Ex.P/4) of "geit" will show that tractor and trolley were found standing at place 'A' loaded with mustard stacks. It also shows that there were some cowdung cakes belonging to the complainant party and that at place 'D' there is a Bitora of accused-Sahab Singh as well as at place 'F' of deceased-Bhagwan Singh. Thus, the learned Counsel contended that there is evidence and the possibility is that there was some exchange of abuses in between the ladies of both the sides on having their cow-dung cakes in the "geit" and when the accused persons had brought their tractor trolley loaded with mustard stacks, they might have exchanged some abuses, the accused persons leaving their tractor trolley still unloaded with mustard stacks went to their houses and, therefore, according to the learned Counsel, the possibility is that the deceased alongwith Chandan Singh and others must have gone to the house of the accused persons and then the occurrence should have taken place. The learned Counsel, therefore, contends that the evidence of Prem Singh (PW-1) and other witnesses cannot be relied upon because they have not come out with the true genesis of the incident. Further subjecting to the criticism of the statement of Prem Singh (PW-1), the learned Counsel for the accused appellants contended that he (PW-1) has made improvements over his police statement (Ex. D-4) with which he was confronted, and then he stated that no sooner they heard the gun shot fire they came out. Prem Singh (PW-1) has stated that when all the three persons i.e. Bhagwan Singh, Chandan Singh and Damodar came out of the Verandah then two shots had abuady been fired. It goes to show that they could not have been In a position to see that it was the accused appellant, Jagdish, who had fired the two earlier shots and, therefore, his deposition in the Court that it was the accused appellant, Jagdish, who had fired three" shots, cannot be relied upon.
16. In Ex.D/4, which was recorded by Jagmohan Singh and as we have already said, we will exclude the statement recorded by Jagmohan Singh from consideration, Prem Singh stated that all the three persons, namely, Sahab Singh, Jagdish and Charan Singh had fired at Bhagwan Singh and others and he had not' stated that it was Jagdish alone who had fired three shots, and it was his shot which hit Bhagwan Singh.
17. The learned Counsel further contended that the occurrence is said to have taken place at 7.30 p.m. on 10.2.87 and the month of February at a point of that hour it becomes dark and, therefore, he could not have been in a position to see from the place where he has professed to have seen as to who had actually fired and who had fired actually at deceased-Bhagwan Singh. Learned Counsel has also made a reference to the evidence of Dr. Suresh Chand (PW-15), to which we will deal with at a later stage, in support of his contention that the injury could not have been caused while standing in a lane which admittedly was at a lower level then the platform where the deceased was standing out side his house.
18. Referring to the statement of Chandan Singh (PW-2) who admittedly is son of deceased-Bhagwan Singh, the learned Counsel contends that he has made improvements in his statement not only from the FIR but also from his statements Ex.D/1-A, Ex. D/2-A and Ex.D/3. His statement under Section 161 Cr.P.C. was recorded thrice by different Investigating Officers. No doubt, as said earlier, Jagdish Singh has been charge-sheeted but it will appear from the perusal of the first information report (Ex.P/1) which was in the hand writing of Chandan Singh (PW-2) that the whole of it was ascribed by him. He does not mention in it that Damodar was also present. Even assuming that admittedly it was Jagdish who did not agree to lodge two reports which he had earlier written; in one of them names of five persons are said to have included, and in the other-four were named, so far as Sahab Singh is concerned, it is not the case of the prosecution that Jagdish Singh exerted any pressure on him to exclude his name. Therefore, so far as the act ascribed by Jagmohan Singh, assigned to Sahab Singh, is concerned, if he would have exerted his son Jagdish to fire, the fact of exhortation must have been mentioned in the first information report (Ex.P/1) but this material fact has been omitted. He states that he and his father-Bhagwan Singh, had gone to the "geit" and asked Jagdish, Balbir and Charan Singh. He does not state that Sahab Singh was also there and all the three said that the place belonged to them and that they will put their mustard stacks and will enter into possession; they also abused, he states that these three persons left their tractor trolley and went away from there and he (Chandan Singh) and his fatherBhagwan Singh went to their house. It will appear from his statement that he does'not state, that In the "geit" at that moment there was also accused appellant, Sahab Singh.
19. A look at Ex.P/1 which is ascribed by him, earlier, he has said that it was Sahab Singh and Jagdish, who had unloaded the stacks of mustard in their "geit". In his statement, in the Court as PW-2, he does not name Sahab Singh but added two more persons, namely, Balbir and Charan Singh, whose names are not mentioned in the first information report. He states that after some time, two accused appellants along-with three others armed with weapons, came to the house. Jagdish was armed with a 'pachfera' of which his father was having licence. Sahab Singh was armed with a 12-bore gun. Charan Singh was aimed with a 'katta' and others were armed with lathies. He states that no sooner he came, Charan Singh said that they should come out, they (accused) would unload the wood and see as to who would stop them from doing so. All the three came out on the Chabutra and Sahab Singh is said to have exhorted that they should be killed by firearms. A look at the first information report will show that there is no mention of any exhortation either of the accused appellant or any other else. That apart, it does not appear to us that if Sahab Singh himself would have been armed with a 12-bore gun, would have fired on Bhagwan Singh and others who had come out on the Chabutra there could be any need of exhating him. Therefore, the evidence of exhoritation has been adduced by Chandan Singh to involve Sahab Singh as an afterthought, an improvement in his other statements recorded under Section 161 Cr.P.C. and against a normal human conduct also, as said earlier.
20. Chandan Singh (PW-2) also states that out of three shots allegedly fired by Jagdish, one hit at the "geit", other one on the wall and the third shot hit the neck of his father. His father fell on the Chabutra and his 'taoo" (uncle) Damodar caught hold of him and then the other accused persons gave blows to him. He also states the names of Maharaj Singh, Mahendra Singh alongwith others to have witnessed the occurrence but it may be stated that neither Maharaj Singh nor Mahendra Singh has been examined, and for the reasons, known to the prosecution they were independent witnesses and their presence has been mentioned in the first information report (Ex.P/1) also, but the prosecution has withheld them. He admits that on the next day of the occurrence the Dy. S.P., Chudawat, had arrived at the spot and the statements were recorded in his presence. Chudawat, Dy. S.P. has not been examined though we have said earlier that because of the fact that the first information report was lodged by Jagmohan Singh and charge sheet ought to have been filed in relation to this very FIR, we would exclude the statements recorded by him and the investigation, but when Chandan Singh (PW-2) himself states that Shri Chudawat, Dy. S.P. had arrived on 11th of February, 1987 and his statement was recorded in his presence, the question, at-least, arises whether site plan report (Ex.P/3) which was prepared at the house of Bhawan Singh (deceased) should be looked into or not. In Ex.P/3, there is no mention of any gun shot having hit the wall or the door or of any piece of bullet being embeded in the wall. In Ex.P/8, was prepared on 1st April, 1987, after change of the investigation. There is a mention of the fact that there is clear cut hit in the wall as well as the door and seven pieces of bullet are said to have been recovered from the wall where, it is said, they were embeded. We have called for the case diary as to what he has stated about Shri Chudawat, Dy. S.P., whether he was present or not. It will appear that there is no mention in trie case diary by Jagmohan Singh that Shri Chudawat (CO.) had also arrived at the spot and the said inspection was done in his presence and the statements of the witnesses were recorded. Assuming for the present purpose, that conduct of Jagmohan Singh is highly suspicious and he was favorably inclined to oblige the accused persons and wanted to save all of them, there is no allegation that Shri Chudawat, Dy. S.P. was also favourably inclined and he too became a party to all manoeuvers at the behest of Jagmohan Singh. Therefore, from the very fact that when the site was inspected under Ex. P/3 it was not noted that there were any signs of bullet having hit the door or the wall or that even it was not pointed out to Dy. S.P. by Chandan Singh or anybody else that in the wall there were pieces of a bullet, in our opinion and, as such, we will not place any reliance on the later seizure of the pieces of bullet from the wall. The pieces of bullet are said to have been recovered after being drawn out of some small bricks of which the wall was constructed. The incident is of 10th of February, '87 and the site was again inspected on 4th of April, '87 and the delay of reinspection has not been explained. We will, therefore, ignore the recovery of the pieces of bullet, from consideration in this case.
21. It has been stated by Chandan Singh that the next day of occurrence, Jagmohan Singh had come to the spot and he had pointed out both the places where the bullet hit to him but he did not even care to see. We have already said that the Dy. S.P. was also present and if others would have been there, the Dy. S.P. would not have ignored it and would not have allowed Jagmohan Singh not to note of such a material fact. A suggestion was put to him that when the persons other than Sahab Singh (accused) i.e. Jagdish Singh and two others hurled abuses at them in the "geit" and it was he and his father who had gone to the house armed with fire arm and caused injuries to him but he denied the suggestion. However, we will later on deal with the injuries of the accused and the defence theory but suffice it to say here that the accused received many a injuries including the injury by firearm and the doctor has excluded the possibility of the injuries being self-inflicted. He has not explained his injuries.
22. When it was put to him that there was also a Bitora of Sahab Singh in the "geit" and it was so noted by the SHO; he said that he had not noticed it and he did not object to the SHO as to why he has shown the Bitora of Sahab Singh in the "geit". He admits that though the accused persons tried to unload the mustard stacks in the "geit" between but when they had asked not to do so, they have unloaded it. He also admitted that there was no litigation in respect of "geit" in between him and the accused persons. His statement was also recorded in the children court during trial of Balbir who was a child.
23. A look at his statement (Ex.D/2-A) will show that he did not state therein that any of the accused appellants had caused injuries to the deceased. He explained that though he had wanted to say but the learned Sessions Judge said that he was only trying accused Balbir and, therefore, it is not to be recorded and so he did not say so. At any rate, it can be said that in his statement in the children court he did not name the accused appellants being armed with gun or that it was Jagdish (accused) who had caused the death of Bhagwan Singh. He admits that the Chabutra (platform) where deceased and he were standing after coming out of the house, is at the highest level of one and half ft. from the thoroughfare. He admitted that he had seen the remainders of the fire on the door as well as on the wall next morning and he had not seen them when he had gone to lodge the report and his statement is quoted:
xksyh yxus ds nksuksa fu'kku eSa fjiksVZ Fkkus esa nsdj vk;k mlds ckn 11 rkjh[k dks lqcg ns[ksA tc Fkkusnkj txeksgu flag us xkWao esa esjs c;ku D-2 fy;k ml le; eSaus mUgsa nksuksa xksyh yxus dh ckr crk nh FkhA Therefore, his statement in the court that two shots fired by Jagdish had hit the "geit" and the wall and that he had seen so, does not appear to be correct, in view of his above statement. That apart, it has been stated by him and other witnesses that Chandan Singh, Damodar and the deceased had come out after hearing the gun shot fires. It can, therefore, be said that after a few shots had been fired, only then they could have come out and they could not have seen three shots being fired by Jagdish (accused). He stated that when Dy. S.P. came on 11, he had shown the signs of bullet having hit the door and the wall, to him. We have already said that had it been so, it would have been noted in the site plan also. When he was asked as to why he did not mention the same to the Dy. S.P. in Ex.P/1 he has stated that he was frightened so he has not stated so. He had admitted that before they came out of Verandah (courtyard) accused persons had already fired and only after hearing the firings and their abuses they had come out of their Verandah and further that before their coming out, one shot had already been filed.
24. PW-3 is Nen Singh. According to him, on the day of incident at 7.30 p.m. he was going from his house towards house of Bhagwan Singh and he saw Damodar, Bhagwan Singh and Chandan Singh in the verandah of the room. He also saw that two of the accused appellants alongwith three others were going towards room of Bhagwan Singh; and that Sahab Singh (accused) was with a 12 bore gun (single barrel), Jagdish was armed with a 'pachfera', Charan Singh was armed with 'katta' and the others were armed with 'lathies'. They started abusing at a distance of 30-35 steps from the house of Bhagwan Singh. After hearing the abuses; Damodar, Bhagwan Singh and Chandan Singh came outside the Verandah and then upon asking of Sahab Singh; Jagdish fired with his 'pachfera'. Two of his bullets did not hit anybody but third shot fire by Jagdish hit Bhagwan Singh on his neck and he fell on the ground and died at the spot. He further states that in the morning, he came to know that out of two fires; one did hit the 'choukhat' (sill) of a door and other at a wall. When Damodar came to lift Bhagwan Singh when he fell, Sahab Singh gave a butt blow by his gun at him and the others gave 'lathi' blows. It goes to show that 'pachfera' was fired by Jagdish. According to him, the accused made their escape from the place of occurrence. He also accompanied Chandan Singh to the police station. He admits that his Baba and the uncle of Chandan Singh are real brothers. According to him, Tundi (his father), Damodar (PW-4) and Vipti are real brothers. It will, therefore, appear that he is a near relative of the deceased as well as of Damodar (PW-4) and Chandan Singh (PW-2). According to him, his house is at a distance of 40 yards from the house of Bhagwan Singh. He also admits of the existence of a Bitora in the "geit" belonging to accused Sahab Singh and states that the position of that 'bitora' has rightly been shown in Ex.P/4. According to him, in that "geit" the ladies belonging to deceased Bhagwan Singh and Sahab Singh used to make cow-dung cakes. Therefore, from his statement, It appears that the "geit" where the cow-dung cakes were being made and where the accused persons are said to have unloaded their tractor trolley with mustard crop stacks, is the joint property of deceased Bhagwan Singh and Sahab Singh (accused). In his police statement (Ex.D/5), he has stated that the incident has taken place because earlier the incident has taken place in between the ladies of both the parties when the accused persons wanted to unload the mustard seeds stacks but when the statement (Ex.D/5) was confronted to him; he denied the same.
25. PW-4 is Damodar. As said earlier, he has relations with deceased and Chandan Singh (PW-2). He also states that the occurrence took place when he and deceased were inside the room and the accused appellants came armed with gun and 'pachfera'; there were three more, out of whom Charan Singh was armed with 'katta' and others with 'lathies'. He came out side the Verandah. Sahab Singh exhorted Jagdish that he should fire and Jagdish fired by his 'pachfera'. He also repeated the same story that two fires of Jagdish had not hit anybody and hit the sill of door and the wall, and third fire hit Bhagwan Singh (deceased). He too was given beating by the accused persons, he deposed. He states that the occurrence had taken place because of the earlier incident which had taken place in the "geit" though he was not present at that time. Even dened to the existence of a 'bitora' belonging to Sahab Singh of the "geit" is a fact which is admitted by the other witnesses, as said earlier, and a fact which appears from a bare reading of Ex.P/4. He states that Sahab Singh (accused) had unloaded the wood in the "geit" where the cow-dung cakes are prepared by his ladies and had been protested. When he was confronted as in his police statement he admitted that the incident had taken place because of the exchange of abtjses in between the ladies during the day when the accused persons had unloaded wood in the "geit". According to him, at 7 or 7.30 p.m. the day had not yet become dark. When he was confronted by the police statement wherein he has not stated that it was at the exhoritation of Sahab Singh that Jagdish had fired by his 'pachfera', he states that he has stated so and could not explain the contradiction. In his police statement, it was not even stated that the earlier fire by Jagdish had hit the door and the wall. It was not even stated that it was Sahab Singh who had caused him (Damodar) an injury by the butt of the gun. He denied the suggestion of the defence that, in fact, Bhagwan Singh and Chandan Singh had gone to the house of the accused persons and had caused injuries to them. He also denied the suggestion that Jagdish Singh (accused) had received injuries in the occurrence.
26. These are the above four witnesses and, as said earlier, they are too interested witnesses and though independent persons were present, they have not been examined. It has already been said earlier that the platform where the deceased was standing at a higher level than the thoroughfare from where accused Jagdish is said to have fired, it was as a higher level by 1-1/2 ft.
27. A look at the post-mortem report (Ex.P/24) as well as the statement of Dr. Suresh Chand (PW-15) will show that the direction of the wound was downward, inward, midially and backward. It has come in the statement of Dr. Suresh Chand (PW 15) that if the assailant and the victim were standing at the same level then in that position the gun shot injury could not have been received by the victim i.e. the deceased. He also states that looking to the nature of the injuries, in his opinion, the assailant must have fired at 30 to 40 ft. higher level and only in that position the injury could have been received.
28. We have already referred to the post-mortem report and even of the cost of repetetion it can be said that the direction of the wound was downward, inward and, therefore, the injury could not have been received with the assailant and standing at the lower level than the victim and, as said earlier, the victim was standing on a platform which was at a higher level by 1-1/2 ft. than the level of the thoroughfare and, therefore, the basis of the statement of the eye witnesses that accused Jagdish fired at the deceased from the distance of 10 to 15 steps, can not be relied upon and the possibility, that the occurrence took place in some other manner and that the witnesses who have professed to be eye witnesses did not, in fact, witness the occurrence, cannot be excluded.
29. There is one more reason for the same inference. It will appear from the post-mortem report (Ex.P/24) as well as from the statement of Dr. Suresh Chand (PW-15) that beside the gun shot injury there were two more injuries found on the dead-body of Bhagwan Singh. The one was on the parietal region-lacerated wound and the other was burn wound. None of the witnesses have stated that the deceased was given any injury by blunt weapon or that any burn injury was caused to him. It is not stated by Dr. Suresh Chand (PW-15) that one burn wound was or could be caused by gun shot injury. The prosecution witnesses, therefore, have not explained these two injuries though an attempt has made to explain on injury on parietal region i.e. lacerated wound, by suggesting that it could have been received by a lathi blow but nobody gave out that when deceased after receiving the gun shuot injury had fallen on the platform, there were any other blows which had hit parietal region. Dr. Suresh Chand (PW-15) has stated that if the deceased would have fallen on a lower level ground generally it was necessary that the injury which was seen there must have been injury on his right temple and there is no injury on his right temple. Therefore, it cannot be said that two more injuries other than gun shot injuries were found on the deceased and the prosecution has not been able to explain them and the presence of other injuries goes to show that the incident did not take place as described by the prosecution witnesses and the prosecution has not come out with the true genesis of the incident.
30. The facts of the incident, as per the prosecution, is that about few hours before the incident there was some altercation in between some of the accused and the deceased and his son Chandan Singh in regard to unloading the mustard seeds stacks from the tractor trolley in the "geit". The presence of a loaded tractor trolley inside the "geit" as appearing from Ex.P/4, goes to show that whosoever came to unload the mustard seeds stacks in tractor trolley could not succeed and left the tractor trolley loaded. As we have already said that the defence of the accused persons is that it was the deceased and Chandan Singh who had gone to the house of the accused and had caused injuries to him. It will appear from Ex. D/8, a report which was sent to the S.P., Bharatpur, by Jagdish (accused) that he had come with a counter case and he has stated therein the defence theory which defence has been taken in the trial of the case. According to him, it was Bhagwan Singh who was armed with a 'katta' and fired at him and Chandan Singh was armed with 'lathi' and only thereafter he has taken his licensed gun of his father. The accused appellant (Jagdish_ was examined vide Ex.D/7-A by Dr. Suresh Chand on 10th of February,'87 and the following injuries were found on his person:
1. Multiple wounds about 25 or 30 in number wounds of 1-1/2 mm size above the knee of the right leg as well as below the right knee.
2. Contusion with abrasions of middle of the left middle fingure of hand.
3. Contusion one 6 × 3cm on the front portion of the neck.
4. Contusion 4cm x 2 cm on the left shoulder.
5. Contusion surrounding the scrotum.
Injury No. 1 was caused by firearm and others were by blunt weapon. X-ray was also taken of the aforesaid injuries by Dr. G.P. Pathak (DW-1) vide his reports (X-ray plates; Ex. D/11 -A and Ex. D/11-3). It will appear that there was a radio opaque shadow which is said to have been found on his right knee. The defence has also examined Dr. Har Prasad. Dr. Har Prasad (DW-4) stated that on 13th of February, '87 Jagdish was indoor patient and was discharged on 20.2.1987. He was admitted in the hospital for the treatment as to the pellet injuries. He further states that Jagdish was again admitted in the hospital on 4.3.1987 while he was in jail and on 7th of March, '87 he had taken out the pellets of upper portion of the right knee of Jagdish by operation and he had taken out 10 pellets. He had sealed them and handed over to the medical jurist. It has come in the statement of Dr. Suresh Chand that the injury even on the knee could not be self-inflicted. Therefore, it can be said that on 10.2.1987 itself when the incident took place the injuries of Jagdish (accused) were examined. Beside having other injuries, he had also gun shot injuries on his knee. The prosecution has not tried to explain that the injuries could not have been received or was not likely to have been received at the same time when the occurrence is said to have been taken place.
31. In Prabhoo's case 1941 All. L.J. 619 : AIR 1941 All. 402 (F.B.) it was held that whenever an accused person raises a plea based on some general exception, the burden of proof lies upon him under Section 105 of the Indian Evidence Act and that burden has to be discharged by the preponderance of probabilities. The standard of proof for the accused is of the same as is for the plaintiff or for a defendant. The Court considered the aforesaid case, in the case of Rishi Kesh Singh and Ors. v. The State and the Court said that the law laid down in Prabhoo's case still holds good law. The Court said in para 93 as under:
In a case in which any General Exception in the Indian Penal Code, or any special exception or proviso contained in another part of the same Code, or in any law defining the offence, is pleaded or raised by an accused person and the evidence led in support of such plea, judged by the test of the preponderance of probability, as in a civil proceeding, fails to displace the presumption arising from Section 105 of the Evidence Act, in other words to disprove the absence of circumstances bringing the case within the said exception; but upon a consideration of the evidence as a whole, including the evidence given in support of the plea based on the said exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more of the ingredients of the offence, the accused person, shall be entitled to the benefit of the reasonable doubt as to-his guilt and hence to acquittal of the said offence.
In the Instant case, we are of the opinion that the prosecution does not appear to have come out with the true genesis of the incident. The usuries received by Bhagwan Singh could not have been caused as has been stated by the prosecution witnesses. Their statements, therefore, cannot be relied upon, moreso when all of them are interested moreso when they have not explained the injuries of the accused which could not have been self-inflicted and the same appears to have been received by the accused at the same time when the deceased received the injuries. Under these circumstances, we are of the opinion that the defence taken by the accused is probable and taking into consideration the evidence led by the prosecution as well as the defence of the accused, we are of the opinion that the case against the accused appellants is rendered doubtful and they are entitled to the benefit of reasonable doubt.
32. Consequently, we hereby allow this appeal and set aside the Judgment dated 23rd August, '90 of the learned Special Judge, Dacoiry Affected Area, Bharatpur, and acquit accused appellant Sahab Singh of the charge under Section 302/34 IPC and accused appellant Jagdish of the charge under Section 302 IPC. The sentence awarded to each of them are set aside. Appellant Sahab Singh is on bail. He need not surrender to his bail bonds. His bail bonds shall stand cancelled. Appellant Jagdish is in Jail. He shall be released forthwith, if not wanted in any other case.