Rajasthan High Court - Jaipur
Ram Singh And Madan Singh vs State Of Rajasthan on 16 May, 1988
Equivalent citations: 1988(2)WLN399
JUDGMENT Navin Chandra Sharma, J.
1. This is an appeal by Ram Singh and Madan Singh against their conviction made and sentence passed by the Sessions Judge, Merta by his judgment gated September 8, 1982 whereby Ram Singh appellant was convicted under Section 302, I.P.C. and sentenced to imprisonment for life and Madan Singh appellant was convicted under Section 326 read with Sections 34, 323 and 352 I.P.C. and sentenced respectively to undergo rigorous imprisonment for seven years with fine amounting to Rs. 500/-, rigorous imprisonment for three months with fine amounting to Rs. 100/- and rigorous imprisonment for one month with fine amounting to Rs. 100/-.
2. A report Ex. P 8 was got lodged by Daulat Singh PW 7 at Police Station, Padu Kalan District Nagaur on July 11, 1981 at 2.30 p.m. through Ganpat Singh PW 9 which led Gugan Ram, SHO, of the said Police Station to reach to the place of incident in village Mandal Jodha. This report was written and signed by Daulat Singh PW 7 at village Mandal Jodha and was sent by him to Ganpat Singh PW 9 at Merta through Bhanwar Singh PW 4 with instructions that Ganpat Singh may present it at the Police Station, This report Ex. P. 8 simply mentioned that the dead body of Jatan Singh of village Mandal Jodha was lying on a through-fare in front of the primary school. It was requested to the Station House Officer to take care of the dead body immediately after coming to the spot because it was not proper to let a dead body remain lying for a considerable time as the same was lying in the middle of a public through-fare.
3. Gugan Ram, Station House Officer, reached the place of incident in village Mandal Jodha at 3.35 p m. on the same date. At Mandal Jodha, Gyan Singh PW 8, who was called from Merta City to the village, got a First Information Report Ex. P. 7 written from Raghuvir Singh, Sarpanch PW 5 and lodged it with Gugan Ram, Station House Officer, at village Mandal Jodha itself at 3 40 p.m. This First Information Report was sent by Gugan Ram, Station House Officer, to the Police Station, Padu Kalan, for registering a case under Section 302 read with Section 34, I.P.C. through Foot Constable Ganga Singh.
4. In this First Information Report, Gyan Singh PW 8 mentioned that he was employed as driver of the jeep of Gordhan Soni at Merta City. He had gone with the jeep to village Riyan on July 10, 1981 and he received information there that he should reach village Mandal Jodha at the earliest. He accordingly reached his village Mandal Jodha at about 2.30 or 3.00 p.m. and found that the dead body of his cousin Jatan Singh was lying near the bus stand in a common "Guwar". Raghuvir Singh Sarpanch, Gulab Singh Up-Sarpanch and Mohan Lal Patwari were present near the dead body. It was mentioned that at about 7.00 a.m. of day while Jatan Singh had come to the bus stand to go to Merta City, he was beaten to death by Madan Singh and Ram Singh by dagger and lathi. The dagger was in the hand of Ram Singh who stabbed Jatan Singh thrice by it. Two injuries were inflicted on the back and one on the left side by the dagger. It was further mentioned that complete incident can be enquired from Karan Singh PW 10 who was son of Jatan Singh deceased and who was present at the time of the incident.
5. Gugan Ram, Station House Officer prepared an inquest report Ex. P. 9 and a site plan Ex. P. 11 along with memo of site inspection Ex. P. 10. He seized two bags along with articles therein lying near the dead body of Jatan Singh under the seizure memo Ex P. 12. Blood smeared and plain sample of sand were also taken from the spot and sealed. Post-mortem examination of the dead body of Jatan Singh was got conducted through Dr. Satyanarain Sharma PW 1 who gave his report Ex. P. 1. After the post-mortem examination, the blood stained clothes were seized from the dead body of Jatan Singh under the seizure memo Ex. P 14. Police statements of some of the prosecution witnesses were recorded on July 12, 1981. Both the appellants and acquitted accused Heer Singh were arrested on July 15, 1981. According to Gugan Singh, Station House Officer, Madan Singh appellant at the time of his arrest was wearing blood stained clothes and the same were seized on July 21, 1981 under the seizure memo Ex. P. 6 Ram Singh appellant, while in custody, gave information Ex. P. 21 with regard to the dagger and in pursuance of that information, dagger Article 3 was recovered by digging a pit near the western part of Ram Singh's bara. Ram Singh appellant also got recovered Dhoti Article 4 which he was wearing at the time of the incident from his house and the same was seized by the Police. Madan Singh appellant also gave information with regard to the Lathi Article 5 and the same was recovered by Gugan Ram from the house of Madan Singh. Gugan Ram recorded Police statements of the remaining prosecution witnesses on July 19 and 22, 1981. After necessary investigation, a charge-sheet was filed by the Police against the appellants and Neer Singh in the court of the Additional Munsif cum-Judicial Magistrate, Merta who committed the appellants and Neer Singh for trial to the court of Sessions Judge, Merta on August 14, 1981.
6. The Sessions Judge, Merta charged Ram Singh appellant for offence under Section 302 I.P.C., Madan Singh appellant for offences under Section 302 read with Section 302 read with Section 34, 323 and 352 I.P.C. and Neer Singh for the offences under Sections 302 read with Section 34 and 323 I.P.C. All the three accused did not plead guilty and claimed to be tried After trial the Sessions Judge found the appellant Ram Singh guilty for the offence under Section 302 I.P.C. He found Madan Singh appellant as guilty for the offences under Sections 326 read with Section 34, 323 and 352 I.P.C. Both the appellant were sentenced as already mentioned above. So far as Neer Singh was concerned, he was acquitted for both the charges framed against him.
7. Karan Singh (PW 1) is the son of deceased Jatan Singh and he is the spokesman of the prosecution case. According to him his father Jatan Singh along with himself, his grandmother Kunj Kanwar PW 11 and his father's cousin sister Marudhar Kanwar PW 6 had reached the Bus stand of village Mandal Jodha on July 11, 1981 at about 7 00 a.m. Jatan Singh had two bags containing his goods in his hands. Chhitar Singh PW 14 was employed as Corporal at Air Force Station Agra. He had some agricultural land in village Mandal Jodha. In respect of that agricultural land some litigations were going on between Chittar Singh PW 14 and the appellants and Neer Singh in the court of Sub-Divisional Officer, Merta. As Chhitar Singh was employed in Air Force and was posted out side his village, he was not in a position to himself look-after the litigations. He had, therefore, constituted Jatansingh deceased, as his Attorney to look after the litigations on his behalf under the Power of Attorney Ex P. 20. While Madan Singh appellant was employed at Jaipur, Neer Singh was employed in Hariyana. A few days before the incident, mother of Chhitar Singh PW 14 had expired and her "Mrityu Bhoj" was to be performed on July 9, 1981. Chhitar Singh had called Madan Singh and Neer Singh by telegram to attend the Bhoj of her deceased mother and for this purpose they had respectively come from Jaipur and Hariyana. The appellants and Neer Singh had participated in the Bhoj. According to Karan Singh, when he along with his father, grand mother and father's cousin sister had reached the Bus Stand, the appellants also came over there and they asked Jatan Singh as to why he had obtained a Power of Attorney from Chhitar Singh. In reply Jatan Singh told that Chhitar Singh had, out of his own sweet will constituted him as Attorney and if Chhitar Singh wished to take back the power of Attorney Ex P. 20, he had no objection to it and he can take back after accompanying with him to Merta. Madan Singh thereupon hurled vulgar abuses and exhorted Ram Singh appellant to kill Jatan Singh. Madan Singh gave a lathi blow on Jatan Singh but the latter saved himself. Thereafter Ram Singh appellant gave a stab by the, dagger on the back of Jatan Singh. Madan Singh then wielded a lathi blow on the head of Jatan Singh. Ram Singh appellant gave two more stab wounds with the dagger in his hand on the body of Jatan Singh. Neer Singh was also present there and he was throwing stones towards Jatan Singh. Kunj Kanwar and Marudhar Kanwar intervened to rescue Jatan Singh and they also sustained some injuries. Jatan fell down and died on the spot. According to Karan singh, Bhanwar Singh PW 4 Chhitar Singh PW 14 and Kasa Ram Jat were also present when this incident took place. Daulat Singh PW 7 also arrived at the spot. Daulat Singh sent Karan Singh, his grand-mother and his father's cousin sister to their home in the village. Gugan Ram S.H.O. arrived at village Mandal Jodha and then Karan Singh was also called and site plan end inquest report were prepared. The two bags of Jatan Singh were also seized by the Police. According to Karan Singh, the appellants were annoyed with Jatan Singh deceased because he used to look after the litigations of Chhitar Singh against the appellant as holder of Power of Attorney from Chhitar Singh. Although Jatan Singh had also been invited by Chhitar Singh to attend the "Mrityu Bhoj" of his mother but Jatan Singh his family members did not attend the Mrityu Bhoj because on that date the appellants and Neer Singh had come in front of the house of Jatan Singh and had abused him and had told that if he attended the "Mrityu Bhoj" then they will kill him.
8. According to the Sessions Judge, Merta there was no dispute that Jatan Singh had died in the morning of July 11, 1981. Relying upon the evidence of Marudhar Kanwar PW 6 Karan Singh PW 10, Kunj Kanwar PW 11 and Dr. Satya Narain Sharma PW 1 it was held that Jatan Singh had suffered homicidal death and not a natural one.
9. Before proceeding further, we may mention the version of the incident as given by the appellant and Neer Singh in their examination under Section 313 Criminal Procedure Code. According to Madan Singh appellant, he was returning from village Mandal Jodha to Jaipur where he was employed. Ram Singh appellant had come to the bus stand at Mandal Jodha in order to see off Madan Singh. At that time Jatan deceased and his son Karan Singh also came there. Both were armed with lathies. Jatan Singh told Madan Singh as to how and why the compromise was arrived at and that he should be paid Rs. 10,000/-. Madan Singh refused the demand and thereupon Jatan Singh hit a lathi blow on his head. Karan Singh also gave a lathi blow on his leg. As a result of these two lathi blows, he fell down and could not get up. Jatan Singh took out a dagger and wanted to kill him, but Ram Singh appellant came to his rescue. He became unconscious and came to senses at the next stop of the Bus. He does not know who took him in the Bus. When he came to senses he alighted in another bus and went to the Police Station Padu and lodged a report. The Officer Incharge of the Police Station sent him to the hospital and after getting the injury bandaged, the Police Constable brought him back to the Police Station. So far as Ram Singh appellant is concerned, he has stated that he had gone to the Bus Stand to see off Madan Singh. At that time Jatan Singh deceased and his son Karan Singh arrived. Jatan Singh told Madan Singh as to who he was to get the matter compromised and that he should arrange payment of Rs. 10,000/- to him. On refusal by Madan Singh, Jatan Singh gave a lathi blow on the head of Madan Singh. When Madan Singh was going to inflict a second lathi blow, he intervened to rescue Madan Singh, In the meanwhile Jatan Singh took out a dagger and wanted to kill him He caught hold of the dagger and while he was trying to snatch the dagger from Jatan Singh, it hit Jatan Singh into his abdomen. Karan Singh had also inflicted a lathi blow on the leg of Maden Singh. He lost his recoil action as to what happened thereafter.
10. The learned Sessions Judge, Merta did not believe that Banwar Singh PW 4 and Chhitarsingh PW 14 were eye witnesses to the incident. How ever, the Sessions Judge, believed the testimony of Marudhar Kanwar PW 6, Karan Singh PW 10 and Kunj Kanwar PW 11 and the version of the incident as given by them. He also believed the recoveries of dagger Article 3 and Dhoti Article 4 at the instance of Ram Singh appellant and Lathi Article 5 at the instance of Madan Singh appellant. The dagger and Dhoti were found to have stains of blood. The Sessions Judge did not believed the defence version of the incident. In the prosecution version, the Sessions Judge held that it was not established beyond doubt that Neer Singh was present at the time of the incident. Neer Singh was accordingly acquitted by him. Both Madan Singh and Ram Singh appellants were found guilty for the offences mentioned above and sentenced as aforesaid.
11. Mr. Doongar Singh, learned Counsel appearing for the appellants, strenuously urged that even according to the findings given 'by the Sessions Judge, Merta, the prosecution has introduced two false witnesses, namely, Bhanwar Singh PW 4 and Chhittar Singh PW 14 and further that Neer Singh was falsely implicated in the case. According to the learned Counsel, it shows that the prosecution has. tried to suppress the real origin of the incident and the manner in which it took place. The prosecution did not examine independent witnesses who were admittedly present at the Bus Stand and only examined related and interested witnesses. Mr. Doongar Singh also argued that as matter of fact, Marudhar Kanwar PW 6 and Kunj Kanwar PW 11 have also been falsely introduced as eye witnesses. It was further contended that Madan Singh appellant had sustained injury on his head during the incident and he was medically examined on the very day of the incident. However, the prosecution suppressed the injuries sustained by Madan Singh and failed to explain as to how Madan Singh sustained the injuries and as such the entire prosecution case was doubtful and the genesis of the occurrence is shrouded in deep mystery which is sufficient to demolish the entire prosecution case. Lastly, it was urged that Karan Singh PW 10, is not a witness of truth and conviction cannot be based on his solitary testimony. The learned Public Prosecutor supported the judgement of the Sessions Judge and the conviction made and sentence passed by him.
12. This case has certain peculiar features which may be mentioned first. The incident took place at the Bus Stand of village Mandal Jodha on July 11, 1981 at about 7 00 a.m.
13. Daulat Singh PW 7 has appeard in the witness-box to state that be was taking tea at the house of Ram Singh. When he was returning from there he heard that Jatan Singh was being beaten. On hearing that, he reached to the place of the incident and saw the dead body of Jatan Singh. He also stated that he knew the appellants and he saw Ram Singh appellant with a dagger in his hand at the place of the incident and he also saw Madan Singh and Neer Singh running away from that place. He further deposed that Karan Singh told him that Ram Singh appellant will kill him. The witness consoled Karansingh and sent him along with Marudhar Kanwar and Kunj Kanwar back to his house. Before Karan Singh returned to his house, a motor had passed and Karan Singh had asked its driver to stop but Ram Singh appellant gave a threat to the driver and, therefore, the motor did not stop. Despite coming to know that Jatan Singh was being beaten at the Bus Stand and despite seeing himself that Ram Singh appellant was standing at the place of the incident with a dagger and that Madan Singh and Neer Singh were running away and further that Bhanwar Singh PW 4 and Chhittar Singh PW 14 were already present at the place of the incident. Dault Singh PW 7 only contended himself by sending an innocuous report Ex. P.8 to Dault Singh PW 9 for being presented at Police Station only mentioning therein that the dead body of Jatan Singh was lying on a through fare in front of a Primary School and that the Officer Incharge of the Police Station may immediately come to the spot to take care of the body because it was not proper that the dead body should remain lying for a long time as it was a thorough fare. A witness who had heard about the incident of Jatan Singh being beaten and who had reached the spot and seen the appellants and Neer Singh and had also talked with Karan Singh and had further sent the report Ex. P. 8 through Bhanwar Singh PW 4, who was stated to be already present at the time of the incident, could not be expected to send such an innocent report which even did not reveal the commission of a cognizable offence and which, therefore, could not even be regarded as a first information report.
14. The other interesting feature is that although Bhanwar Singh PW 4 has appeared in the case as eye-witness to the incident and it was through him that Daulat Singh had sent the report Ex. P 8 to Ganpat Singh for being presented at the Police Station Padu and Bhanwar Singh had gone for that purpose to Merta, but he himself did not go to the Police Station to, lodge a first information report of the incident and remained content with handing over an innocuous report to Ganpat Singh PW 14 at Merta.
15. These two peculiar and interesting features in the case lend support to the view that incident did not take place in the manner as alleged by the prosecution. Had the incident taken place in the manner alleged by the prosecution, there was no reason why Daulat Singh or even Chhitar Singh would not have lodged a first report of the incident and why Daulat Singh and Bhanwar Singh would have remained content by getting a report Ex. P. 8 presented at the Police Station Padu which even did not reveal the commission of a cognizable offence. This also lends support to the view that either Daulat Singh and Chhitar Singh were not at the incident or that they deliberately did not report about the manner in which the incident really took place. The learned Sessions Judge, Merta has disbelieved the testimony of Bhanwarsingh PW 4 as eye-witness to the incident. He has also disbelieved the testimony of Chhitar Singh PW 14 as eye-witness to the incident. We agree with the learned Sessions Judge that Chhitarsingh PW 14 was not an eye-witness of the incident because neither his presence was mentioned in the report Ex. P. 8 and nor in the first information report Ex. P. 7 lodged by Gyan Singh. Chhitar Singh PW 14 had stated that he had constituted Jatan Singh as his Attorney to look after the cases which were pending against the appellant and Neer Singh in the court of the Sub-Divisional Officer, Merta. Had Chhitar Singh PW 14 witnessed that she person to whom he had constituted his Attorney has been murdered by Ram Singh appellant with whom he had litigations, he would have lost no time in himself going to the Police Station Padu and lodging a First Information Report of the incident. Surprisingly, Chhitar Singh also did not lodge the First Information Report even when Gugan Ram SHO. reached the place of the incident at about 3.35 p.m. On the other hand, it was Gyan Singh PW 8, who had not even seen incident and who was not even present in village Mandal Jodha, was made to lodge the First Information Report (Ex. P 7).
16. Coming then to the testimony of Marudhar Kanwar PW 6, Karan Singh PW 10 and Kunj Kanwar PW 11, it may be mentioned that Kunj Kanwar was the mother of the deceased Jatansingh and she deposed that she had also come to the Bus Stand along with Jatan Singh deceased, Karan Singh PW 10 and Marudhar Kanwar PW 6 in order we go to Merta by bus. She stated that when Jatan Singh was attacked by the appellants by lathi and dagger, she and Marudhar Kanwar intervened to rescue Jatan Singh and during that intervention, she also sustained injuries on her head and hand from the lathi blows dealt by Madan Singh appellant. Marudhar Kanwar PW 6 has deposed that she had also intervened to rescue Jatan Singh and during that course she also sustained injury on. her hand from the "'Lakari" in the hand of Neer Singh. In her cross-examination Marudhar Kanwar PW 6 admitted that Neer Singh was empty handed. There are material infirmities and discrepancies in the Testimony of these witnesses which throw a serious doubt on the presence of Marudhar Kanwar PW 6 and Kunj Kanwar PW 11. Marudhar Kanwar PW 6, is sister's daughter of Kunj Kanwar PW 11. She has been married in village Songad which is near Reengus. She used to remain in village Songad and according to Karan Singh PW 10, she had come to village Mandal Jodha only 4 or 5 days before the incident. According to Marudhar Kanwar PW 6 when they reached the Bus Stand, both the appellants and Neer Singh were already present at the Bus Stand On this point Karan Singh PW 10 and Kunj Kanwar PW 11 have given different versions. Karan Singh PW 10 has deposed that it was just after they had reached the Bus Stand that Madan Singh and Ram Singh appellant had also arrived there. Neer Singh had come a minute later. Kunj Kanwar PW 11 a}so in portion A to B of her Police statement (Ex. D 7) had stated that it was when, they were sitting at the Bus Stand that Madan Singh and Ram Singh came there and Neer Singh came subsequently. While in her cross-examination Marudhar Kanwar PW 6 deposed that Neer Singh was empty handed, but in her examination-in-chief, she stated that she received injury on her hand from the "Lakari" blow of Neer Singh. Contrary to this, Karan Singh PW 10 and Kunj Kanwar PW 11 deposed that it was from Lathi of Madan Singh that both Marudhar Kanwar PW 6 and Kunj Kanwar received the injuries. These are material contradictions. Apart from that, it may be mentioned that although according to the prosecution Marudhar Kanwar PW 6 and Kunj Kanwar PW 11 were also injured during the incident which took place on July 11, 1981 and both of them were in village Mandal Jodha, yet Kunj Kanwar was got medically examined after about a week on July 17, 1981 and Marudhar Kanwar PW 6 was medically examined after about 10 days of the incident, i.e., on July 20, 1981. No reason has been assigned by the Investigating Officer as to why the injuries of Kunj Kanwar and Marudhar Kanwar were so late medically examined from Dr. Tulcha Ram PW 12. This delay in the medical examination of the injuries of Marudhar Kanwar PW 6 and Kunj Kanwar PW 11 also throws considerable doubt about their presence at the time of the incident and about their sustaining injuries during the course of the incident The injury reports (Exps. P 15 and P 16) go to show that they had two greenish bruises each. Marudhar Kanwar PW 6 had greenish bruises on her right leg while in her statement she had deposed that she sustained injuries on her hand. It is also pertinent to note that Dr. Tulcha Ram PW 12 neither in his statement, nor in the injury report (Ex. 15) mentioned as to on what part of the body injury No. 1 was sustained by Kunj Kanwar PW 11. It may further be mentioned that although Marudhar Kanwar PW 6 is said to be present in village Mandal Jodha on the date of the incident, yet her Police statement was neither recorded by the Investigating Officer on July 11, 1981 nor on July 12, 1981, but the same was recorded after 8 days on July 19, 198!. There is no explanation for this unreasonable delay in the recording of the Police statement of a witness who according to the prosecution, was an injured eye-witnesses. Even in the First Information Report (Ex. P 7) it is not mentioned that Marudhar Kanwar and Kunj Kanwar had also received injuries and were present at the time of the incident. For above reasons, in disagreement with the learned Sessions Judge, Merta, we hold that Marudhar Kanwar PW 6 and Kunj Kanwar PW 11 were neither eye-witnesses to the incident nor they sustained injuries during incident.
17. We are then left with the statement of Karan Singh PW 10 who was son of the deceased. The presence of Karan Singh PW 10 at the Bus Stand at the time of the incident is even not disputed by the appellants. Both the appellants in their examination under Section 313 Cr. P.C. have admitted that both Jatan Singh and Karan Singh had come to the Bus Stand where the incident took place. Thus Karan Singh's presence was without any shadow of doubt and he was an eye witness to the incident. With regard to the manner in which the incident took place, we have from the side of Karan Singh a version that it was Madan Singh who first inflicted a lathi blow which some-how Jatan Singh managed to escape from it, then Ram Singh stabbed Jatan Singh with a dagger on his back, then Madan Singh inflicted a lathi blow on the head of Jatan Singh and then Ramsingh appellant inflicted two stab injuries more from the dagger in his hand on Jatan Singh There is in an opposite version of the incident from the side of the appellants which has already been reproduced above. It may be mentioned that inter-se the appellants, there is contradiction about the manner in which the incident took place. According to Madan Singh, Jatan Singh deceased after inflicting a lathi-blow on Madan Singh, had taken out the dagger and wanted to kill Madan Singh by the dagger and at that time Ram Singh intervened. He, thereafter became unconscious. As against this the version of Ram Singh is that he intervened when Jatan Singh was attempting a second lathi blow on Madan Singh whereupon Jatan Singh took out a dagger and wanted to kill Ram Singh (not Madan Singh), whereupon Ram Singh caught hold of the dagger and during the process of snatching the dagger from the band of Jatan Singh, the dagger entered into the abdomen of Jatan Singh. From this inter-se contradictory statements of Madan Singh and Ram Singh appellants, the defence version that it was Jatan Singh who possessed the dagger or wanted to inflict injury by dagger either on Madan Singh or on Ram Singh is rendered highly improbable and more so when Jatan Singh deceased had not only sustained one punctured wound from the dagger, but three punctured wounds from it and none was in the abdomen.
18. We are still left with the question about the manner in which the incident took place. It is here important to note that Gugan Ram SHO PW 15 has admitted in his statement that after the incident and on that very day Madan Singh had gone to the Police Station Padu earlier than Ganpat Singh and the SHO had sent Madan Singh for medical examination. He also admitted that injury report of the injuries sustained by Madan Singh was received at the Police Station. The prosecution has not produced that injury report but the same has been produced in defence as Ex. D 8 Dr. Rampratap Soni PW 1 was posted as Medical Officer Incharge, Primary Health Centre, Riyan and he had deposed that he had examined the injuries of Madan Singh on the Police requisition and found the injuries mentioned in Ex. D 8. The injury report Ex. D 8 goes to show that Madansingh had sustained two injuries. The first injury was a contused wound with clotted blood and inflammation on the left side of the occipital region (1/2" long X 1 m m. wide and 2 m.m. deep horizontal). This injury was simple and could be caused by blunt weapon. The second injury was bruise with reddish-blue colour and deep having one circular punctured wound just above the bruise with clotted blood and fresh bleeding on touch. This bruise and wound were on the lateral side on the left thigh just above the knee joint (the size of the bruise was 3" long X 1-1/2" wide oblique and size of wound 3 mm. diameter 1/4" deep circular). This injury was also simple and could be caused by blunt and rough weapon. Dr. Ram Pratap Soni had stated in his cross-examination that both the injuries mentioned in Ex. D 8 were superficial and could be sustained by a fall on a hard simultaneously. He has also said that injury No. 2 could be sustained if the lathi had a knot over it. It could also be sustained by a fall on a stone. The fact that Madan Singh had gone to Police Station Padu soon after the incident and he was sent for medical examination by Gugan Ram SHO and medical examination revealed that Madan Singh had sustained two injuries mentioned above go to show that these injuries were sustained by him during the course of the, incident.
19. In the present case, none of the prosecution witnesses have mentioned any thing about the injuries on the person of Madan Singh, and, therefore, it is unsafe to rely on the evidence of Karan Singh completely unless the same was corroborated by independent witnesses and more son, when there are strong circumstances in the case which are indicative of the fact that the first injury was inflicted on the head of Madan Singh by deceased Jatan Singh. We will come to those circumstances now. There is evidence of Chhitar Singh PW 14 that he was employed as Corporal at Air Force Station Agra. He has got agricultural land in village Mandal Jodha in connection with his employment, he had to remain out side the village. Litigation was going on between him and Ram Singh appellant regarding the land in the court of the Sub-Divisional Officer, Merta. He has deposed that as owing to the exigencies of service he could not remain in the village, he had constituted Jatansingh deceased as his Attorney. We do not find any reason so disbelieve this part of the statement of Chhitar Singh PW 14 From the side of the prosecution, a copy of the power of Attorney (Ex. P.20 had been produced. It is true that the original power of Attorney is not on the record, still there is no reason to doubt the statement of Chhitar Singh and Karan Singh on the point that Chhitar Singh had constituted Jatan Singh deceased as his Attorney to look after the litigations between him and Ram Singh appellant. It further appears that some talks of compromise were going on between Ram Singh and Chhitar Singh and they intended to compromise the litigations between them. In this connection, it is a very relevant and strong circumstance to note that when mother of Chhitar Singh expired, Chhitar Singh had called Madan Singh and Neer Singh who were employed at Jaipur and Hariyana by telegram to attend the "Mrityu Bhoj" which was to beheld on July 9, 1981. In this Mrityu Bhoj,' both the appellants and Neer Singh had attended but Jatan Singh deceased and his family members did not attend the Bhoj. It is interesting to note that while Ram Singh, with whom Chhitar Singh was having litigation, attended the "Mrityu Bhoj" along with his uncle Madan Singh and brother Neersingh, but Jatan Singh in whom Chhitar Singh had reposed trust and had constituted him as his Attorney to look after toe litigations with Singh did not attend the "Mrityu Bhoj". Evidence has been led in defence of Samunder Singh DW 3 who has stated that after the death of Chhitar Singh's mother, relations had assembled and compromise was got effected between Chhitar Singh on the one part and Madan Singh and Ram Singh on the other. This part of the statement of Samunder Singh appears to be reliable. It appears to us that Jatan Singh who was the Attorney of Chhitar Singh was unhappy with the compromise and, therefore, he did not attend even the "Mrityu Bhoj" of Chhitar Singh's mother. While Madan Singh was returning to Jaipur and Ram Singh had also come on the Bus Stand with him, some altercation took place between Jatan Singh on the first part and Madan Singh on the other. During that altercation, Jaran Singh inflicted a lathi blow on the head of Madan Singh as a result of which Madan Singh sustained a contused wound on the left side of his occipital region and there was also a second injury on his left thigh. At that moment, Ram Singh, in exercise of the right of private defence as against the person of his uncle Madan Singh, took out a dagger which he possessed under his shirt and stabbed Jatan Singh thrice on left side of chest on posterior side, on right side of chest posterior side on left infra auxiliary and hyponchondrial region. The autopsy of Jatan singh was conducted by Dr. Satya Narain Sharma Medical Officer Incharge, Government Hospital, Harsore and he found the following four injuries on the body of Jatan Singh deceased:
[1] Punctured wound 2" X 1" X 4-1/2 on left side of chest on posterior side vertically oblique 1-1/2" laterial left side from the vertibral at the 7th and 8th vertibral line-margin smooth-ante mortem. Clotted blood present;
[2] Punctured wound 2" X 3/4" X 3-1/2" on right side of chest posterior side infra scapular region 3" right to the vertibral column at the level of 11th and 12th vertibral level-margins smooth, clean sharply cut-clotted blood present ante mortem transversely oblique spindle shape;
[3] Punctured wound 2-3/4" X 1-1/2" X 4" on left infra auxiliary and hyponchondrial region transversely oblique-fatty tissue and foscia coming out from the wound margins smooth, sharply out ante mortem-spindle shape;
[4] Bruise 1" X 1/2" on left side of scalp or left parietal region 4-1/2" above left ear vertically oblique-ante mortem.
In the opinion of Dr. Satya Narain Sharma, the cause of death of Jatan Singh was multiple extensive injuries (Punctured wounds) over the body causing injury to heart) spleen and vertibral column leading to haemorrhage, syncope and death. We are not ready to believe the defence version that Jatan Singh possessed the dagger and was attempting to inflict injuries there from either to Madan Singh or to Ram Singh. Had Jatan Singh possessed dagger, be would not have used a lathi on the head of Madan Singh. Rather, in its very beginning, he would have used the dagger. The very fact that Jatan Singh inflicted a lathi blow on the head of Madan Singh leads us to a definite conclusion that Jatan Singh did not possess the dagger and did not use it. Rather Ram Singh appellant who possessed the dagger, used it thirice after Jatan Singh had inflicted a lathi blow on the head of Madan Singh.
20. The only question, therefore, now remains for consideration is whether Ram Singh in inflicting three dagger blows on the body of Jatansingh exceeded the right of private defence. In State of Gujarat v. Bai Fatima and other , his Lordship Untwalia, J. has observed as under:
In a situation like this when the prosecution fails to explain the injuries on the person of the accused, depending on the facts of each case, any of the three results may follow:
[i] that the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence;
[ii] it makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
[iii] it does not affect the prosecution case at all.
Question in each case, therefore, is in what category the case in hand falls. In Bai Fatima's case 1975 (2) SCC 7 on its merits, despite the fact that the respondent No. 1 got the blows with a stick at the hands of Gulab Khan, it was held that her action of assault on Gulab Khan was a deliberate counter attack to cause him such injury which at least was likely to cause his death. The counter attack was held not to be an attack in exercise of the right of private defence. Bai Fatima's case was relied upon in Laxmi Singh and Ors. v. State of Bihar . His Lordship Fazal Ali, J. observed:
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
[i] that the prosecution has suppressed the genesis and the origin of the occurrence has thus not presented the true version;
[ii] that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;
[iii] that in case there is a defence version which explains the injuries on the person of the accused which is rendered probable so as to throw doubt on the prosecution case.
His Lordship Fazal Ali, J. hastened to add that as held by the Supreme Court in State of Gujarat v. Bai Fatima (supra) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case.
21. We have already held that the prosecution in the instant case has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. How ever, it is also a case where the defence has also falsely narrated the incident in as much as the dagger was wrongly attributed to be in the hand of Jatan Singh deceased. Madan Singh states that he became unconscious on mere receiving a lathi blow and he does not state as to how Jatan Singh sustained three punctured wounds by dagger. Ram Singh states that while he was snatching dagger from hands of Jatan Singh it pierced in the abdomen of Jatan Singh. These versions regarding the use of dagger have out-rightly been rejected by us above. In such circumstances, the only result that follows is that Ram Singh had inflicted injuries on Jatan Singh deceased in exercise of the right of self-defence of the person of Madan Singh and the case falls within first category pointed out by his Lordship Untwalia, J. in Bai Fatima's case (supra).
22. We may refer to the decision of their Lordships of the Supreme Court in Rafiq v. State of Maharashtra . In this case during the quarrel between the parties, Kadir attacked the appellant and inflicted several, blows with a stick and it was then that the appellant stabbed Kadir with a knife. His Lordship Pathak, J., as he then observed:
The medical evidence does not convince us that Kadir could, after the fatal knife wound in his heart, set about to wield blow after blow with a stick on the appellant. Having regard to all the surrounding circumstances, a continuous assault by Kadir on the appellant after he had been stabbed must, in our opinion, be ruled out. The injury to the heart was far too grievous.... The appellant acted in the exercise of his right of private defence, but if regard is had to nature and violence of the blows suffered and apprehended by him, he exceeded that right when he stabbed Kadir in the heart.
Their Lordships accordingly found the appellant guilty under the First Part of Section 304 of the Indian Penal Code and sentenced him to five years' rigorous imprisonment. In the present case also, Jatan Singh had inflicted a lathi blow on the head of Madan Singh a contused wound 1/2" long and 1 m.m. wide x 2 mm. deep on the left side of the occipital region by a blunt weapon (Lathi) causing a simple injury which gave rise to right of private defence in favour of Ram Singh. At best infliction of one punctured wound by the dagger by Ram Singh to Jatan Singh was more than sufficient to disable Jatan Singh from wielding further lathi blows on Madan Singh. How ever, Ram Singh did not stop short, but repeated two more blows by dagger on vital part of the body. Dr. Satya Narain Sharma opined that punctured wound No. 2 was inflicted by sufficient force and had harmed the vertebrae. According to him, this injury must have been caused in the last. In our view and our judgment, Ram Singh exceeded right of private defence when he caused two more punctured wounds by dagger on the vital part of Jatan Singh's body.
23. We may also refer to the decision of their Lordships of the Supreme Court in Ramesh Chandra v. State of Madhya Pradesh 1981 (supp) SCC 60. It was found in that case that the deceased was armed with a stick and the appellant had a knife. The deceased had three incised wounds. Of the three one was on the back below the right scapula another on the abdomen and third on the left loin. All these three injuries were caused by the appellant. It was held by their Lordship that once the deceased fell down with a serious injury it was hardly necessary for appellant to further attack. Undoubtedly, one cannot weigh the right of private defence in golden scales and cannot measure it step by step. But having regard to all the circumstances of the case, their Lordships held that appellant had initially the right of private defence of the body but when he continued to attack the deceased after he fell down, he exceeded the same. The appellant was held guilty under Section 304, Part-II, I.P.C. and sentenced to three years' rigorous imprisonment.
24. In Onkar Nath Singh and other v. State of U.P. it was laid down that entire prosecution case cannot be thrown simply because the prosecution witnesses do not explain the injuries on the person of the accused. The question what is the effect of non-explanation of the injuries on the person of accused, is a question of fact and not one of law.
25. We may deal further with the decision of their Lordships of the Supreme Court in Laxmi Singh and Ors. v. State of Bihar (supra). Facts in Laxmi Singh's case (supra) were very much distinguishable from the facts of the present case. In Laxmi Singh's case (supra), facts were that appellant Ramsagar Singh and his brother Dashrath Singh were full brothers. Deceased Chulhai and one Ramasray were the first cousins of Ramsagar Singh and Dasrath Singh and the deceased Brahm Deo was a nephew of Chulhai. The two families were living together in the same house in different portions having a common court yard Jaiwanti daughter of Ramdayal Singh, one of the sons of Chulhai Singh, was married on April 18, 1966 and Dasain Singh and Ors. had fixed a 'Marwa' (Marriage Platform) in their common court yard. The marriage passed off peacefully and the appellants Ramsagar Singh and Dasrath Singh never objected to the construction of the 'marwa' in the court yard. According to the prosecution, three days later when the 'chauthari' ceremony had been performed at about 4 p.m. and when Dasain Singh, his father Chulhai Singh and Ors. were sitting in the house, the appellants Ramsagar Singh and Dasrath Singh armed with Bhala and Bana respectively appeared on the scene and asked Chulhai Singh and Dasain Singh to demolish the 'Marwa'. Chulhai Singh protested to this. This led to an exchange of hot words and an altercation in the course of which other five appellants joined the two appellants Ransagar singh and Dasrath singh and made a common cause with them in assaulting the two deceased persons Chulhai singh and Bharmdeo--Brahmdeo and Chulhai singh died as a result of the injuries sustained by them. The defence of Dasrath singh and Ramsagar singh was that the two deceased persons and Dasain singh has trespassed into their plantain orchard and were cutting away a number of plants and leaves and when Dasrath singh protested, he was assaulted by Dasain singh and Ors. and thereafter in the mutual fight the two deceased were assaulted in exercise of the right of private defence by the accused and Ors. who had assembled nearby. His Lordship Fazal Ali, J. took into consideration various circumstances appearing in the case. These circumstances were that five other appellants except Ramsagar singh and Dasrath Singh were totally unrelated to one another. These five other appellants did not have any concern or connection with the deceased or the members of their family but they had been sworn enemies of the four prosecution witnesses, namely, Ramji singh PW 1. Sita Ram singh PW 2. Parmeshwar singh PW3. and Naga singh PWs 4.It was found that having regard to the serious enmity which pws 1to 4.had against the five other appellants the four prosecution witnesses Pws 1 to 4. must have made it a condition precedent to depose in favour of the prosecution or support the case only if Dasain singh would agree to implicate the five other appellants and to assign them vital roles in the drama staged so that these four witnesses could get the best possible opportunity to wreck vengeance on their enemies. The appellant Dasrath singh had himself sustained three injuries the first injury sustained by him was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries inflicted by sharp cutting weapon. Dasrath singh appellant had received these three injuries in the course of the incident. Not only the prosecution had given no explanation, but some of the witnesses had made a clear statement that they did not see any injuries on the person of Dasrath singh accused. Then it was noticed by his Lordship that evidence of PWs 1 to 4 showed that they had given graphic description of the assault with regard to the order, the manner and the parts of the body with absolute consistency which gave an impression that they had given a parrot-like version acting under a conspiracy to depose to one set of facts and one set of facts only. The Investigating Officer had found 100 plantain trees in the orchard of Dashrath Singh and had further found that leaves of the plantain plant had been cut of the six plants on the western side and four plants on the eastern side and it probablised the defence version. A part from that there was omission on the a part of the prosecution to send the blood stained earth found at the place of occurrence for chemical examination which could have fixed the situs of the assault. There was also inconsistency between the evidence of the eye witness and the medical evidence regarding the injuries sustained by the two deceased. In the back ground of these facts, it was held by his Lordship that the genesis and the origin of the occurrence appeared to the shrouded in deep mystery and took into consideration the fact that since the prosecution had not explained the injuries sustained by Dashrath Singh, it affected the prosecution case adversely. The defence theory of the exercise of right of private defence was accepted.
26. In the present case, the incident admittedly and undoubtedly took place at the Bus Stand of village Mandal Jodha and deceased Jatan Singh and his son Karan Singh were admittedly present at the Bus Stand. It is also not in dispute that Madan Singh and Ram Singh appellants were also present there. Ram Singh had come to see off Madan Singh who was going to Jaipur. The fact that while the appellants had attended the ceremony of "Mrityu Bhoj" held at the house of Chhittar Singh on the death of his mother despite the fact that Chhitar Singh had litigation with Ramsingh regarding the land, but Jatan Singh deceased, despite being an Attorney of Chhitar Singh to look-after the litigations on his behalf, did not attend the "Mrityu Bhoj", clearly and irresistibly indicates that some compromise was going to be arrived at between Ram Singh and Chhittar Singh which was not liked by deceased Jatan Singh. An exchange of hot words, therefore, took place at the Bus Stand and the appellants asked Jatan Singh as to why he had taken a Power of Attorney from Chhitar Singh. The appellants wanted that Chhitar Singh should return the deed of Power of Attorney. This led to the incident in which Jatan Singh deceased first inflicted a lathi blow on the head of Madan Singh which caused a simple injury on the left side of the occipital region. The second injury was a bruise with a very small circular wound. Dr. Ram Pratap Soni PW 1 examined on behalf of the appellants deposed in his cross-examination that both the injuries mentioned in the injury report Ex. D 8 of Madan Singh were superficial. Ram Singh, in order to prevent Jatan Singh from inflicting more lathi injuries to Madan Singh, took out the dagger from under his shirt and gave a stab blow to Jatan Singh. The stab blow from the dagger was punctured wound to the extent of 4" or 4-1/2" deep. One single dagger stab was sufficient to disable Jatan Singh from inflicting any further injury to Madan Singh and the right of private defence available to Ram Singh ended there. There was no justification for him to further stab Jatan Singh twice more by dagger. The dagger injuries were inflicted on vital parts of the body. In our opinion, the facts and circumstances of this case are more nearer to the facts and circumstances in S.K. Rafiq v. State of Maharashtra (supra) and Ramesh Chandra v. State of Madhya Pradesh (supra) rather than to Laxmi Singh's case (supra)
27. Much emphasis was laid by the learned Counsel for the appellant on the fact that according to Karan Singh PW 10 and even other prosecution witnesses there were about 30 or 35 other persons present at the Bus Stand but the prosecution did not examine any person out of them as witnesses. According to the learned Counsel, the prosecution omitted to examine independent witnesses. This argument does not carry the matter further for the simple reason that Karan Singh's presence is not in dispute and the defence theory that Jatan Singh first inflicted a lathi blow on Madan Singh has been accepted. The defence version regarding attempt by Jatan Singh to inflict a dagger blow has been found to be self-contradictory. The dagger was with Ram Singh, and not with Jatan Singh. Apart from that even if there were 30 or 35 more persons at the Bus Stand, they may be passengers also and may not know the parties to the incident. They might have left by bus. In any event, exceeding of the right of private defence by Ram Singh is very well established from the very fact that in reply to superficial injuries sustained by Madan Singh, Ram Singh inflicted three stab punctured wounds be dagger sufficiently deep and on vital parts of the body. Accused Ram Singh, in our judgment, exceeded the right of private defence.
28. In relation to Madan Singh appellant, it may be observed that the solitary injury which Jatan Singh had sustained, apart from the three punctured words, was a bruise 1" x 1/2" on the left side of scalp 4-1/2" above the left ear and according to Dr. Satya Narain Sharma PW 1, this bruise could be caused by a fall. Jatan Singh had fallen on the ground after being stabbed by dagger by Jatan Singh and this bruise could very well be the result thereof. We have already accepted the defence version that it was Jatan Singh who had first inflicted blow on the head of Madan Singh and that Ram Singh thereupon in exercise of right of self-defence of the person caused three punctured wounds by a dagger on the body of Jatan Singh deceased. How ever we have further come to the conclusion that Ram Singh exceeded in the right of private defence. In such circumstances, Madan Singh did not commit any offence and he deserves a clear acquittal.
29. The result is that while Madan Singh appellant deserves to be acquitted, Ram Singh accused is guilty of the offence under the First Part of Section 304 of the Indian Penal Code and not under Section 302 of the said Code. We accordingly partly allow this appeal and set aside the conviction and sentence of Madan Singh appellant and acquit him of the offences under Section 326 read with Section 34, Section 323 and Section 352, I.P.C. Madan Singh appellant is already on bail. His bail bond and surety bonds are cancelled and he need hot surrender. So far as Ram Singh appellant is concerned, his appeal is partly allowed and his conviction is altered from Section 302, I.P.C. to that under First Part of Section 304, I.P.C. and he is sentenced to undergo rigorous imprisonment for a term of five years and with a fine in the sum of Rs. 2,500/- (rupees two thousand five hundred only.) On failure to pay the fine, the appellant Ram Singh shall be liable to rigorous imprisonment for a further period of one year. The fine, if received, shall be paid as compensation to Karan Singh son of the deceased Jatan Singh. The period during which Ram Singh has been in jail during the investigation, inquiry, trial and pendency of this appeal will be set off against the substantive sentence.
30. The appeal is accordingly partly allowed.