Rajasthan High Court - Jaipur
Gokha Singh vs State Of Rajasthan on 30 October, 1985
Equivalent citations: 1985WLN(UC)438
JUDGMENT Jas Raj Chopra, J.
1. This appeal has been filed by accused Gokha Singh, who has been convicted and sentenced by the learned Addl. Sessions Judge, Sri Ganganagar by his Judgment dated November 17, 1972 for the offences under Sections 148, 366, 458, 302/149 and 307/149 IPC.
2. The facts necessary to be noticed for the disposal of this appeal succinctly stated are : that one Gurjant Singh had some love affairs with Baljit Kaur, daughter of PW 26 Gurdeo Singh of village Baam. He abducted her and later when she was recovered, her father married her to Singara Singh of village Jaloki, who is the younger brother of Dharam Singh. It is alleged that Gurjant Singh hatched a conspiracy to abduct Mst. Baljit Kaur from village Jaloki with his companions Jagmail Singh, Nazar Singh, Karnail Singh, Bayant Singh, Jagdeep Singh and Shital Singh. The sister of accused Bayant Singh and Jagdeep Singh was married earlier to the deceased Singara Singh. He, however, left their sister and married to Baljit Kaur. It is alleged that Gurjant Singh employed Jagdeep Singh and Bayant Singh to inform him about the where abouts of Dhararh Singh, the elder brother of Singara Singh and Mst. Baljit Kaur. When they informed him that every thing is O.K. and Dharam Singh has gone to Kota and Baljit Kaur is there in Dhani at village Jaloki. Gurjant Singh, Jagmail Singh, Nazar Singh, Karnail Singh, Gokha Singh and Shaital Singh went to village Jaloki in a car driven by accused Karam Singh on the night intervening between 25th and 26th of August, 1970. Bayant Singh and Jagdeep Singh did not accompany them. It is further alleged that all the arms were collected by Gurjant Singh and when the car reached near Padampur town in district Sri Ganganagar, he distributed the weapons to all the accused persons. He himself was armed with a 12 bore gun and accused Nazar Singh was given 401 bore rifle and accused Gokha Singh was given one Deshi Pistol and certain cartridges. At about 12 or 12.30 in the in the night, when they reached village Jaloki, they left the car at some distance from the house of Singara Singh. The door of Singara Singh's house does not open in the lane but it opens in the Bara. Karam Singh was left with the car whereas these 5 accused-persons viz., Gurjant Singh, Jagmail Singh, Nazar Singh, Karnail Singh and Gokha Singh along with approver Shital Singh entered into the house of Singara Singh through the door in the Bara. It is alleged that Gurjit Kaur, wife of Dharam Singh, Surjeet Kaur, mother-in-law of Gurjit Kaur and 5 children of Gurjit Kaur were sleeping in the Angan of their house. Singara Singh and Mst. Baljit Kaur were sleeping 5-10 paces away from them. It is alleged that it was a moon-light night & a lantern was burning in the house. Accused Gurjant Singh was also having one torch. He flashed his torch and caught the legs of Gurjit Kaur. When he found that he has committed a mistake, he left three persons near those costs and other 3 of them, as per approver Shitalsingh, proceeded towards the cots of Singara Singh and Baljit Kaur. There accused Gurjant Singh told Singarsingh that I have come. On this Singarasingh tried to sit there but accused Gurjantsingh fired from his gun and this resulted into the death of Singara Singh. He then caught hold of Balji Kaur and took her out of the cot. Baljit Kaur cried Gurjanta now kindly leave me alone and allow me to settle down. However, on hearing the gun fire, Surjit Kaur came towards the cot of Baljit Kaur. She too was fired by Jagmail Singh, and succumbed to the injuries. They dragged Baljit Kaur towards the Bara. It is alleged that approver Shital Singh caught hold of her. He tried to grapple with Baljit Kaur who escaped in the Bara. He again caught her in the Bara. In the meanwhile, PW 7 Dalip Singh arrived there armed with a spear and challenged the accused-persons as to who they are ? When a cross-question was flashed from the side of the accused persons, he answered that he is their man. Gurjant Singh immediately told him that he is not their men and he too was fired. The accused persons then took away Mst. Baljit Kaur to the car. In the way, to frighten the villagers not to interfere with the act of the accused persons, the accused persons fired from their guns, pistols, and revolvers etc. The accused party along with Baljit Kaur then went towards the Punjab. In the way, it is alleged that approver Shital Singh tried to tease Mst. Baljit Kaur. This enraged Gurjant Singh and he fired from his gun at Shital Singh. Shital Singh was injured by the gun fire. He was, then, thrown from the car near village Dodakoni. He became unconscious. Thereafter, the villagers took him to Dodakoni hospital where on the next day, at about 10 or 10.30 a.m., the regained consciousness and informed the Doctor about the entire incident. The Doctor immediately called the Police from Police Station, Kotbhai, from where, ASI Rajendra Singh came to the hospital and recorded the statement of Shital Singh, which has been marked Ex. P. 59 and on the basis of which, a formal FIR Ex. D. 1 was recorded at Police Station, Padampur-because the occurrence took place in the area of P.S. Padampur. On the basis of this information, it is alleged that all those accused persons were arrested. So far as accused Gokha Singh is concerned, he was arrested along with Karnail Singh and Nazar Singh by the SHO Zeet Singh with the help of SHO Mokam Singh of Kotbhai in the presence of Motbirs PW 27 Gurbachan Singh and PW 28 Avtar Singh. On arrest, one pistol marked Article H was recovered along with two cartridges from the possession of the accused Gokha Singh. The Police also recovered certain cartridges Article B 1 to B-6 from near the car in village Jaloki. The articles recovered from the accused and crime empty cartridges were all sealed along with other weapons and they were sent for ballistic examination to the Central Forensic Science Laboratory, Calcutta. The. Central Forensic Science Laboratory, Calcutta has reported that one of the crime-cartridges, i.e., B-1 was fired from the pistol Article H recovered from the accused Gokha Singh. The test identification of accused Gokha Singh along with others was also got conducted in which Gurjit Kaur failed to identify Gokha Singh but Dalip Singh identified him correctly. On the basis of this evidence, accused Gokha Singh along with other accused persons was challaned in the Court of Munsif and Judicial Magistrate, Srikaranpur from where the case was committed for trial to the court of Sessions Judge, Sri Ganganagar. The case was later transferred for trial to the Court of Additional Sessions Judge, Sri Ganganagar. All the 8 accused persons were tried by the learned Addl. Sessions Judge, Sri Ganganagar for various offences. After conclusion of the trial, the learned Addl. Sessions Judge held that Bayant Singh and Jagdeep Singh have only taken part in the conspiracy and about the conspiracy, the only evidence produced by the prosecution is of approver Shital Singh and, therefore, without corroboration, that evidence was not sufficient to convict them of the said offences. The offence under Section 120B IPC was not held as proved against any of the accused persons. Accused Karam Singh too, was acquitted by the learned lower court on the same ground that against him too, the only evidence on record is that of the approver Shital Singh and without corroboration, he too cannot be convicted. The learned lower court, however, convicted accused Gurjant Singh, Jagmail Singh, Nazar Singh, Karnail Singh and Gokha Singh of the various offences. We have already specifically mentioned (he offences of which accused Gokha Singh was held guilty. However, accused Gurjant Singh was sentenced to death & so he preferred a murder reference whereas accused Jagmail Singh, Karnail Singh and Nazar Singh also preferred a joint appeal. A Division Bench of this Court consisting of V.P. Tyagi and K.D Sharma, JJ. (as they then were, confirmed the death sentence of accused Gurjant Singh and dismissed the appeal filed by accused Jagmail Singh and Karnail Singh. However, the appeal filed by Nazar Singh was accepted and he was acquitted of all the charges of which he was held guilty by the learned Addl. Sessions Judge, Sri Ganganagar. The appeal of the present appellant Gokha Singh was not heard and considered with those appeals although some passing references have come in the judgment of the Division Bench about the participation of the accused Gokha Singh in the crime but that judgment cannot operate as res-judicata so far as the appeal of Gokha Singh is concerned because the appeal of Gokha Singh was not there before the Division Bench. The learned lower court found the accused Gokha Singh guilty of the offences Under Sections 148, 366, 453, 302/149 & 307/149, IPC on the basis of the testimony of the approver Shital Singh which is alleged to have been supported by the testimony of PW 3 Gurjit Kaur and PW 7 Dalip Singh, the identification of the accused and the recovery of the crime pistol and some empty cartridges from the possession of the accused Gokha Singh.
3. We have heard Mr. S.R. Singhi, learned counsel for the accused-appellants and Mr. L.S. Udawat, learned Public Prosecutor for the State, We have carefully gone through the record of the case and have given our most earnest consideration to the submissions made of the bar.
4. Now, we have to decide whether the findings of the learned lower court so far as accused Gokhasingh is concerned can be sustained on the basis of the evidence on record.
5. First we shall take up the discussion of the ocular evidence led against the accused in the case. This consists of PW 2 Shitalsingh, PW 3 Gurjit Kaur and PW 7 Dalipsingh. No body else has appeared as an eye witness of the occurrence. PW 2 Shitalsingh has stated that Gokhasingh was associated with the accused-party at the time when they left for village Jaloki in the car. He accompanied them to village Jaloki. In all there were 7 persons in the car. One of them was Karansingh, driver who has been acquitted and the others were Gurjantsingh, Nazarsingh, Karnailsingh, Gokhasingh, Jagmalsingh and Shitalsingh. They all were armed with guns, revolver and pistol etc. According to Shitalsingh, Gokhasingh was armed with a Deshi pistol supplied to him near village Padampur by Gurjant Singh. According to PW 2 Shitalsingh, this party of 6 accused-persons entered into the Angan of Singarasingh's house where Gurjitkaur was sleeping. Gurjatsingh caught hold of the legs of Gurjitkaur but when he found that she is not Baljitkaur, he proceeded towards the cots of Singarasingh and Baljitkaur along with two other persons. According to him, Gurjantsingh, Jagmalsiugh and he himself went towards the cots of Baljitkaur and Singarasingh whereas Karnailsingh, Gokhasingh and Nazarsingh remained near the cot of Gurjitkaur. He then supports the prosecution story that Gurjantsingh woke up Singarasingh and told that he has come and as soon as, Singarasingh tried to sit up, he fired at him, by which, Singarasingh died at the spot. Baljitkaur then remonstrated Gurjantsingh not to persue her and allow her to settle down, whereupon, Gurjantsingh caught hold of her hand and pulled her out of the cot. She later grappled with Shitalsingh. Shitalsingh took her out of the house by force. It is alleged that Surjitkaur came towards them i.e., car of Baljitkaur but she too was fired at by Jagmailsingh. "When they were going out of the house of Singarasingh, PW 7 Dalipsingh came armed with a spear which is locally called Sella and challenged these persons. One of the accused then fired at Dalip Singh and he too was injured. The accused-persons then made good their escape by firing in the air from their weapons. According to PW 2 Shitalsingh accused Gokhasingh accompanied them in the car. He went inside the Angan armed with a Deshi pistol and he was standing near the cot of Gurjitkaur. He has now come with the case that 6 persons went inside the house whereas the prosecution originally came with a case that only four accused-persons came inside the house. In his statement before the District Magistrate, Shitalsingh came with a case that he did not go inside the house but was standing at the gate to guard the scene of occurrence and to resist the attempt of any villagers to enter into the house of Singarasingh during the commission of the offence. A Divisional Bench of this Court in Gurjantsingh v. State of Rajasthan DB Cr. Appeal No. 819 of 1972 and Jagmailsingh and Ors. v. State of Rajasthan DB Cr. Appeal No. 815 of 1972 decided on September 3, 1973 while deciding the appeal of the other-accused persons has held that actually Shitalsingh has not entered the house of Singarasingh and, therefore, to 1 his extent, his testimony was not reliable.
6. PW 3 Mst. Gurjitkaur who is an eye witness of the occurrence has originally propounded the theory that four accused-persons entered her house. PW 11 Narsirgh who has ledged the FIR has got in recorded in the FIR that he has come to report the matter after going to the house of Dharamsingh and after talking with Gurjitkaur, who has related the entire story to him. In portion A to B of Ex. P 6, he has got it recorded as under:
dy vk/kh jkr ds djhc /keZflag ds ?kj rhu vkSj vkneh ?kql vk, PW 3 Gurjitkaur has now come with a case that actually 5 accused-persons entered her house. Although she has stated in her earlier police statement Ex. V 6 portions A to B and C to D that only four persons entered her house. In portion A to B, she has got it recorded that 4 persons were found standing near her cot. In portion C to D she has stated that two persons armed with weapons stood by the side of her cot and two persons went towards the cots of Singarasingh and Baljitkaur. She has now stated at the trial that she did not get these facts recorded in her police statement. This is not a sufficient explanation. Even in the trial, she has stated that only 5 persons entered into the house and 3 of them stood by the side of her cot and two persons including Gurjantsingh went towards the cots of Singarasingh and Baljitkaur. She has categorically stated that the three persons who were standing near her were accused Nazarsingh, Karnailsingh and Jagmailsingh. She does not say that Gokhasingh was present. She has stated before the court that she has identified all these accused persons during the occurrence. She eliminates Gokhasingh's presence near her cot or in the Angan of her house, which clearly establishes that PW 2 Shitalsingh is lying about the presence of Gokhasingh, PW 3 Gurjitkaur even did not identify accused Gokhasingh in the jail. Thus, the testimony of PW 3 Gurjitkaur does not support Shital Singh so far as the presence of Gokhasingh in the Commission of this crime is concerned.
7. PW 7 Dalipsingh has, however, stated that he was standing in the Bara of Singarasingh. 4 accused persons who came out of the house of Singarasingh included accused Gokhasingh. He has identified these accused persons in jail as well as in the Court. The learned lower court has disbelieved the testimony of the identification of this witness for very good reasons firstly that Dalipsingh did not have enough opportunity to identify any of these accused persons because as soon as they came out, he challenged them and they fired at him and thus, it was difficult for him to correctly identify them and secondly that accused Ghokhasingh was brought at Police Station, Padampur from Muktsar (Punjab) and was kept in the Police Thana without any purpose for one day. The learned lower court took a view that this was done only to show him to the witnesses and. therefore, no reliance can be placed on this identification. The SHO Zeet Singh was specifically asked as to why these accused persons were brought to Padampur to which he replied that Gurjit Kaur and Dalip Singh were not ready to go to Punjab and, therefore, these accused persons were brought to Padampur but Gurjit Kaur and Dalip Singh have no where stated that they were not ready to go to Punjab. Even a Division Bench of this Court while deciding the appeals of Gurjan Singh, Jagmail Singh, Nazar Singh and Karnail Singh has held that the testimony of Dalip Singh regarding identification is most unreliable and cannot be acted upon. We respectfully agree with the observations of the Division Bench so far as the testimony of Dalip Singh regarding identification of accused Gokha Singh is concerned.
8. Learned counsel for the appellant drew our attention to the fact that it was impossible for Gokha Singh to have accompanied these persons for the commission of the crime. Firstly, Gokha Singh had no special relations with Gurjant Singh. Nothing has been brought on record as to why he readily agreed to accompany these persons for commission of such a heinous crime. Secondly, PW 31 Mohakamsingh, who was the SHO at Police Station Kotbhai has stated that this Shital Singh had lodged a report under Section 307 IPC which was registered against Gokha Singh at his police station, in which Nazar Singh and Karnail Singh were his witnesseses. Gokha Singh was actually wanted in that case under Section 307, IPC which was got registered at the instance of Shital Singh, which was witnessed by Nazar Singh and Karnail Singh. It was impossible for Gokha Singh to have accompanied these arch enemies and to help them in the commission of crime. Learned counsel for the accused, therefore, argued that Gokha Singh has made an attempt on the life of Shital Singh and he has falsely implicated accused Gokha Singh in this case. Under these circumstances, the testimony of Shital Singh becomes unworthy of any credence so far as the participation of the accused Gokha Singh in the crime is concerned. Looking to these circumstances of the case and in the light of the testimony of PW 31 Mohkam Singh an independent witness, it is difficult to hold that Gokha Singh would have become a party to such a crime in the company of his arch enemies.
9. Now we take up the testimony of the recovery of the pistol Article W from the concession of accused Gohka Singh of the time of his arrest. The arrest of accused Gokha Singh was effected by PW 29 Zeet Singh in the company of PW 31 Mohkam Singh in the presence of Motbirs PW 27 Gurbachan Singh and PW 29 Avtar Singh. Zeet Singh has slated that he informed Mohakam Singh that some of the accused-persons have not been arrested. Mohakam Singh informed that he has received information that these persons are robbing in this very area. They proposed to lay an ambush to correct these accused persons. They called these two Motbirs. There is a contradiction whether they were called from the house or from the show or from the way but that much is not very material for the decision of this Court. It has been admitted by these two witnesses that they were present at the time of the arrest and at the time of the recovery of these articles. They put Nakabandi and ultimately effected arrest of accused Karnail Singh, Gokha Singh and Nazar Singh. From the possession of Gokha Singh, one pistol Article H was recovered which was seized and sealed vide recovery memo Ex. P 44. This recovery memo has been proved by PW 29 Zeet Singh and PW 31 Mohakam Singh and it has also been proved by PW 27 Gurbachan Singh and PW 28 Avtar Singh. Learned counsel for the accused appellant argued that it has come in the evidence of Shital Singh that all the arms were collected by Gurjant Singh and they were distributed to the accused party by him near village Padampur. After the commission of the crime, they were taken back by Gurjant Singh in the car and, therefore, there was no occasion for Gokha Singh to have been armed with any pistol. According to learned counsel, this recovery is vague and cooked up. It is true that Shital Singh has stated that arms were supplied to the accused-persons by Gurjant Singh and they were collected back by him. Thus, it is not known how again the accused Gokha Singh came into possession of that Deshi Pistol when he was arrested. To support his contention that it is a cooked up recovery, learned counsel submitted that PW 27 Gurbachan Singh and PW 28 Avtar Singh who are the alleged Motbirs of the recovery are the stock witnesses of the Police. PW 28 Avtar Singh has admitted in his cross-examination that he and Gurbachan Singh have been kept as police witnesses in a number of cases and Gurbachan Singh has actually appeared as a witness 2-3 times with him in cases challaned by the Police. Thus, they are stock witnesses of the police and, therefore, no reliance on such a recovery can be placed. Zeet Singh has admitted that the recovery arms after they were sealed were kept at Police Station Kotbhai in the possession of SHO Mohkam Singh and he cannot say who brought these weapons from Kotbhai to Padampur. No evidence has been produced to show how these weapons were received from Punjab to Padampur. Thus, the entire evidence regarding seals of the arms remaining intact has not been produced. There is no evidence that the seal of PS Kotbhai was handed over to any Motbir. Learned counsel, therefore, argued that such a recovery cannot be pressed into service against the accused persons. In this respect, reliance was placed on Rajaram v. The State of Rajasthan 1985 Raj. Criminal Cases 342.
10. Regarding the recovery of crime cartridge B/1 to B/6. Mr. Singhi submitted that this too is a cooked up recovery. It is alleged that this recovery was made from near the place where the car was left. The Motbirs of this recovery are P.W. 22 Sadhuram and one Naharsingh. P. W. 22 Sadhuram has stated that he does not remember any thing about the recovery but whatever has been mentioned in Ex.Ps 17, 18 and 19 is correct. He has admitted that Naharsingh did not witness this recovery at all. He has further admitted that he must have given evidence in number of cases filed on behalf of the police. This shows that he is also a stock witness of the police who is ready to support the memos Ex.Ps 17, 18 and 19 prepared by the Police although he does not remember details of such recovery. On the basis of this evidence of P. W. 22 Sadhusingh it is clear that recovery memos of crime cartridge-empties are cooked up document and much reliance cannot be placed on such a testimony of empties. We do find some force in this submission of Mr. Singhi.
11. Mr. Singhi further urged that even if it is admitted that some weapons were recovered from Gokhasingh and certain cartidges were recovered near the car and the Ballistic Expert has opined that Cartridge Article B 1 has been fired from the crime pistol Article H, then too this circumstance cannot be pressed into service against this accused because the report of the Ballistic Expert has not been put to him in his statement under Section 313 Cr. P.C. In this respect, he placed reliance on Bhimsen v. State of Punjab 1975 Cr. Appeals Reporter 403, wherein the report of Public Analyst showing the sample of 'aereted water' containing non-permitted coal tar dye was not put to the accused in his examination under Section 342 Cr.PC, it was held that the State is not entitled to urge this ground for the conviction of the accused. Here too, the report of the Expert has not been put to the accused in his statement under Section 313 Cr. P.C. and no explanation has been obtained from the accused as to how he was in possession of the crime pistol from which cartridge B-1 has been alleged to have been fired. In the absence of any question put to the accused in his statement under Section 313 Cr. P.C, this circumstance cannot be pressed into service for connecting him with the crime. There is no other evidence which connects the accused with the crime. The ocular evidence and the testimony of recovery of the pistol and crime empty cartridge B-1 are not free from doubt and so, they cannot be pressed into service.
12. Taking an over all view of the entire evidence on record, we are of the view that the participation of accused Gokhasingh in the crime has not been proved beyond doubt and hence when a doubt is created in the mind of the court whether this accused Gokhasingh has actually participated in the crime or not, the accused deserves the benefit of such a doubt and his consequent acquittal of all the offences, which have been held as proved against him by the learned lower court.
13. We therefore, accept this appeal and set aside the judgment of the learned Additional Sessions Judge, Sri Ganganagar dated November 17, 1972 so far as it relates to the participation of accused Gokhasingh in the commission of the crime is concerned. He is therefore, acquitted of the offence under Sections 148, 366, 453, 302/149 and 307/149 I.P.C. by giving him the benefit of doubt. He is already on bail. He need not surrender his bail bonds and his bail bonds are, therefore, discharged.