Rajasthan High Court - Jaipur
Kamal Singh And Ans vs State on 9 August, 2012
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R D.B. CRIMINAL APPEAL No.687/2003 Kamal Singh & Anr v/s The State of Rajasthan DATE OF ORDER ::: 9.8.2012 HON'BLE MR. JUSTICE DALIP SINGH HON'BLE DR. JUSTICE SMT. MEENA V. GOMBER Shri S.S. Naruka, for appellants. Shri J.R. Bijarania, Public Prosecutor. BY THE COURT : (PER HON'BLE DALIP SINGH,J.)
This appeal has been filed by the accused appellants Kamal Singh S/o Shri Anek Singh and Sher Singh S/o Shri Anek Singh who have been convicted by the learned Additional Sessions Judge No.1 (Fast Track), Dholpur in Sessions Case No.164/2001 for offence u/s 302/34 IPC and have been sentenced to imprisonment for life with a fine of Rs.500/- each, in default of payment of fine to further undergo one month's RI.
2. Brief facts giving rise to this appeal are that an FIR Ex.P-18 came to be registered on the basis of a written report Ex.P-17 given by Amar Singh (PW-11) in respect of an incident which took place on 10.4.2000 at about 2 O'clock in the afternoon stating therein that two persons namely Kamal Singh and Sher Singh were quarreling with his younger brother Arjent Singh. During the course of the quarrel, it is alleged that Sher Singh inflicted a lathi blow on the leg of Arjent Singh as a result of which he fell down. It is further stated that Kamal Singh took out a Katta (country-made pistol) and fired on Arjent Singh as a result of the aforesaid firearm injury, the blood started oozing from the deceased who had fallen down. He further stated that immediately Kamal Singh and Sher Singh, the accused, having seen the deceased fallen down, ran away from the spot. It has further been stated that while running, they scuffled with Amar Singh. It is stated in Ex.P-17 that he has brought Arjent Singh in an unconscious condition in a jeep with the help of villagers to the Government hospital where the doctor examined Arjent Singh and declared him as dead. As such, he has filed this report. He also stated that Gajsingh (PW-14) was also present on the spot. On the basis of the aforesaid report Ex. P-17 which was sent at 3.45 PM by ASI Ramswaroop, Police Station Basedi, District Dholpur from the hospital along with constable Ramesh Chand (408) to the Police Station on 10.4.2000 itself which was received at the police station at 4.00 PM. On the basis of the aforesaid written report, FIR Ex. P-18 was chalked out being FIR No.78/2000 for the offence u/s 302/34 IPC. Deceased Arjent Singh who was brought to the hospital at Baseri was examined by Dr. Anil Kumar Bansal (PW-2) who conducted the postmortem and the report of the said postmortem is Ex. P-4 on record. The aforesaid postmortem was conducted at about 3.30 PM on 10.4.2000 itself even before the report Ex. P-17 was filed. During the course of investigation which was initially conducted by ASI Ramswaroop, the same was later on changed and handed over to Daya Ram (PW-10), on 12.4.2000, ASI Ramswaroop prepared Panchnama of the dead body by means of Ex. P-2 on 10.4.2000 as well as blood stained stone and pieces of stones were recovered from the spot vide Ex. P-3 and site plan was prepared on 11.4.2000 by ASI Ramswaroop which is on record vide Ex. P-1 which shows the place of incident as well as other relevant features and reference of which has been given during the course of trial. Clothes of the deceased were also seized vide Ex. P-6 on 13.4.2000. Accused Kamal Singh was arrested on 12.4.2000 vide Ex. P-5 and on the basis of the information given by him, a Deshi Katta (.315 bore) was recovered at the instance of Kamal Singh vide Ex. P-8. The Katta was recovered on 21.4.2000. The co-accused Sher Singh was also arrested during the course of investigation on 19.5.2000 vide arrest memo Ex. P-9. On 12.4.2000 the alleged pieces of the bullet and pieces of rags (cloth) which are stated to be of the clothes worn by the deceased and taken out of the wound were handed over on 12.4.2000. On 19.5.2000 itself a lathi was allegedly recovered at the instance of the accused appellant Sher Singh vide Ex. P-13. The IO also stated that the weapon of offence and other articles which were seized, were sent to the Forensic Science Laboratory, Jaipur on 24.6.2000 vide Ex. P-14 and the acknowledgment for which is Ex. P-15 of the same date.
3. During the course of trial, the prosecution examined 14 witnesses. Statements of accused u/s 313 Cr.P.C. were recorded. After hearing both the parties, the learned trial court vide judgment dated 23.4.2003 convicted the accused appellant Kamal Singh for offence u/s 302 IPC and appellant Sher Singh for the offence u/s 302/34 IPC and sentenced them as stated above.
4. Being aggrieved of the aforesaid judgment of conviction and sentence, the accused appellants have preferred this appeal before this court. During the pendency of the appeal, this court vide order dated 20.5.2003 suspended the sentence of accused appellant Sher Singh whereas the accused appellant Kamal Singh is in jail.
5. Learned counsel for the appellants contended that the trial court has committed a serious error in relying upon the testimony of PW-11 Amar Singh and PW-14 Gajsingh who are stated to be alleged eye witnesses in the instance case. It is submitted that the testimony is wholly belied by the evidence of the doctor and the postmortem conducted by Dr. Anil Kumar Bansal (PW-2) and postmortem report Ex.P-4 wherein it is specifically stated that the injury received by the deceased was not caused by firearm as is stated by both the eye witnesses. The learned counsel for the appellants have pointed out that in the instant case in the written report Ex. P-17 which was the first version given by Amar Singh (PW-11), it is alleged that the accused appellant Sher Singh inflicted lathi blow on the legs of the deceased Arjent Singh as a result of which he fell down and thereafter accused Kamal Singh fired at the deceased with a Katta (.315 bore) as a result of which he received the injury and died. The same thing was reiterated in the statement of PW-11 Amar Singh in court. Amar Singh (PW-11) in his statement has stated that Kamal Singh fired from the Katta which injury he received on back as a result of which he died. It was also submitted by the learned counsel that Amar Singh (PW-11) has stated that ???? ??????? ???? ????? ???? ?? which suggests that as per the aforesaid eye witnesses the firearm has been used from a close range since the deceased had immediately fallen down as a result of the lathi blow which was allegedly inflicted by the accused appellant Sher Singh. Likewise, Gajsingh (PW-14), the other eye witness has stated that ????? ??? ???? ? ??? ???? ?? ?????? ???? ???? ?? --- ????? 25 ??? ??? ?? ???? ?? ???? ?? ???? ???? ?? ? ????? 25 ??? ??? ?? ???? ?? ???? ?? ???? ???? ?? ? ??? ???? ?? ??? ?? ???? ??? ???? ????? ??? ? ????? ???? ?? ???? ?? ?? ???? ???? ?? ? It was submitted that both the eye witnesses have categorically stated in the statement that firearm was used and as a result of the injury received by the firearm, the deceased Arjent Singh died. The learned counsel for the appellants pointed out that Dr. Anil Kumar Bansal (PW-2), on the other hand, has stated in the court that ???? ?? ??? ?? ????? ????? ?? ????? ???? ?? ??? ?? ??????????? ???? ?? ????? ???? ?? ????? ??? ????? ????? ??, ???? ???????????? ???? ?? ????? ????? ?? ???? ??????? ??? ??? ???? ??? ???? ?? ??? ???? ?? ?? ?? ? ?? ??? ?? ???? ????? ??? ????? ??????? ?? ???? 5 x 4 ??.??. ?? ? ???????????? ??? ?? ???? ????? ?? ??????? 2 x 1.5 ??.??. ?? ????? ?? ?????? ????? ???? ?? ? ???? ?? ??? ???? ???? ??, ???? ???? ?? ??? ?? ?????? ???????? ??????? ???? ?? ? The learned counsel further pointed out that Dr. Anil Kumar Bansal (PW-2) has further stated that .... ???? ??? ??????? ?????? ??? ??? ?? ????? ????? ?? ???? ??????? ??? ?? ---- Dr. Anil Kumar Bansal has further stated that ????? ????? ?? ????? ?? ?? ?? ???? ?? ?????? ???? ???? ?? ??? ?? ??? ???? ?? ???? ?? ???? ???? ????? ?? ?????? ?? ????? ??? ?? ??? ???? ?? ???? ??? ??? ????? ????? ????? ??? ???? ?? ????, ???? ?? ???? ?? ??????? ?????????? ?????? ??? ?????? ???? ?? ??? ???? ??? ? ?????? ???? ?? ??????? ?????? ??. ??. ???? ??????? ?????? ??????????? ??????? ?????????? ?????? ?????? ?????? ????? ????? 1231 ?????? 10.4.2000 ?????? ?? ?? ??, ?????? ????? ?????? ????? ? ???? ?? ?????? ???????, ?????? ????? -2 ?????? ???? ??????? ??? ?? ???????? ?????? ? ?????? ????? -3 ???? ??? ??? ?? ??? ?? ???? ?? ????? ???? ? ?????? ????? -4- ????, ????? ???? ??????? ? ?? ??? ?????? ??? ??? ?? ?????? ???? ???? ???? ???? ? On the basis of the above it was contended that there was only one entry wound which was a penetrating wound and the absence of any opec shadow negatives the presence of the bullet having been found inside the body of the deceased. From the statement of PW-2 (Dr. Anil Kumar Bansal), it was further pointed out that witnesses have stated after examining the clothes of the deceased ?? ??? ?? ?? ???? ?? ???? ?? ?? ???????????? ???? ??? ?? ???? ?????, ???? ?? ?????? ??? ????? ?????? ??? ?? ????? ??? ??? ?? ? ?? ??? ?? ?? ???? ?? ??? ??? ????? ??? ?? ?? ?? ????? ?? ????? ??? ?? ?? ??? ???? ????? ??? ??? ????? ????? ?? ??? ? ?????? ????? ??? ????? ? ????? ???? ?? ???????? ?? ?? ?????? ?? ??? ???? ?? ????? ?? ??? ?? ??? ?? ?? ???? ????? ?? ????? ??? ?? ? ?? ??? ?? ?? ????? ???? ?? ??? ?? ??? ??????????? ? ???? ?? ???? ?? ????? ??? ???? ????? ?? ??? ?? ??? ?? ???? ???? ?? ????? ??? ??? ??? ? This witness has already stated that ?? ??? ?? ?? ???? ?? ??? ???????? ?? ?????? ??????? ????? ??? ?? ??? ????? ??? ?????????? ????? ???? ???? ?? ???? ?????? ??? ??? ?????? ?? ? ???????? ?? ????? ???? ?? ???? ?? ??? ?????????? ????? ???? ??? ???? ??? ?
6. On the basis of the above testimony of Dr. Anil Kumar Bansal (PW-2) it was submitted by the learned counsel for the appellants that doctor has specifically negated after examining the clothes of the deceased, the wound as well as x-ray plates and has stated in the court that the penetrating wound which was found on the deceased was not caused as a result of the gun shot which is the case of both the eye witnesses PW-10 Daya Ram and PW-14 Gajsingh. The learned counsel therefore, submits that there is a clear case of there being contradictions in the medical evidence and that of the ocular evidence of two eye witnesses. The learned counsel, therefore, submitted that as a result of the above, it is difficult to believe that both the alleged eye witnesses were in fact the eye witnesses, as claimed by the prosecution. Thus, their testimony is not free from doubt. The learned counsel for the appellants further stated that so far as the remaining evidence is concerned, PW-1 Mahendra Singh is stated to be the witness of the site plan and the recovery of the dead body and he has not supported the prosecution case and was declared hostile. The other witness in the aforesaid recovery is Pavendra Singh (PW-12) who has also been declared hostile and as such not supported the prosecution case. PW-3 is Lakhan Singh, the police constable, who is said to be the witness of the alleged confession made by the accused Kamal Singh and his consequent arrest. PW-4 is Dharam Singh, police constable at police station Baseri to the alleged recovery of the firearm Katta on the basis of the information given by the accused Kamal Singh and on the basis of which a .315 bore Katta was recovered. PW-5 Suresh has been declared hostile. PW-6 Rajpal has also been declared hostile as he has not supported the prosecution case. PW-7 Kanta Prasad has also been declared hostile and not supported the prosecution case. So far as PW-8 and PW-9 are concerned, they are formal witnesses with regard to deposit of articles with FSL as PW 9 deposited the same in the Malkhana. PW-10 is Daya Ram, the Investigation Officer to whom the investigation was entrusted after two days on 12.4.2000. Ram Swaroop ASI has not been examined by the prosecution at the trial. PW-13 is Sughar Singh who has also not supported the prosecution case and was declared hostile. It was submitted that on the basis of the above and if the testimony of PW-11 Amar Singh and Gajsingh PW-14 is excluded as being doubtful witnesses in the light of the medico legal evidence it is a case of non-evidence against the accused appellants. There not being supported by the medico legal evidence regarding use of firearm for the purpose of having committed the murder by inflicting injuries to the deceased.
7. The learned Public Prosecutor, on the other hand, submitted that the deceased was seen by the witnesses PW-11 and PW 14. It was submitted that the memo with regard to the recovery of the dead body Ex. P-2 was prepared wherein the description of the dead body and the clothes of the deceased have been specifically mentioned from which it is clearly visible that the injury was inflicted with the firearm and even the clothes were torn at the corresponding place of the injury which would go to prove that in fact the firearm was used for inflicting the injury to the deceased as narrated by the two eye witnesses. The learned Public Prosecutor strongly relied upon Ex. P-2 for the aforesaid contention. He further submits that during the course of investigation on 12.4.2000 vide Ex. P-11 the seizure memo of bullet and pieces of cloth which were found at the site of the cremation were recovered and merely because the x-ray plates did not show the opec shadow even in the x-ray of the bullet, it cannot be said that the injury was not caused by the use of firearm. The learned Public Prosecutor pointed out that Samar Singh produced the aforesaid pieces of the bullet before the Investigating Officer Daya Ram from the cremation ground which were seized and sealed which clearly go to prove the prosecution case that a firearm was used. On the basis of the above, it was contended that the case of the accused appellants that there is no evidence to suggest that the firearm was used, is of no avail. In fact, the firearm was used as stated by PW-11 and PW- 14, Amar Singh and Gajsingh, the two eye witnesses.
8. We have considered the aforesaid submissions. We may first deal with the submission of the learned Public Prosecutor. The seizure of the dead body vide Ex. P-2 was prepared by Ramswaroop ASI who was the Investigating Officer at that time and the two witnesses are Pavender Singh (PW-12) and Mahendra Singh (PW-1). It is best known to the prosecution as to why Ramswaroop ASI, Police Station Basedi who prepared the memo was not examined as a witness to prove the same. Both Mahender Singh (PW-1) and Pavender Singh (PW-12) have been declared hostile and they have not supported the prosecution case. In that view of the matter so far as the contents of Ex. P-2 are concerned, none has appeared from the side of the prosecution to prove the same and therefore, the aforesaid piece of evidence cannot be relied upon by the prosecution to support its case. As far as the recovery of the alleged bullet and its pieces vide Ex. P-11 are concerned, these were said to have been produced before ASI Daya Ram on 12.4.2000 at 1.30 PM in the police station and were not recovered from the place where the cremation took place. These were also not recovered by the Investigating Officer but instead were handed over by Amar Singh claiming that these were recovered from ashes of the deceased from the site of the cremation. The witness on the aforesaid seizure memo of the alleged bullet produced by Amar Singh before the Investigating Officer was one Suresh Singh and the only witness Suresh who has been produced as PW-5 has not supported the prosecution case. The other witness is Rajpal who has been examined as PW-6 and he has been declared hostile and has not supported the prosecution case relating to the said seizure.
9. Apart form the above, we find that the alleged weapon of the offence, the Katta .315 bore which was recovered and sent to the Forensic Science Laboratory, there is no report to suggest that the same was in a serviceable condition. The prosecution has even failed to connect the alleged recovery of the pieces of bullet brought by Amar Singh and firearm that was recovered at the instance of the accused which is said to be the weapon of offence. We are of the view that unless the firearm recovered is found to be in a serviceable condition it cannot be of much use to the prosecution case. Even the alleged pieces of the bullet which is said to have been recovered from the place of the funeral cannot be of much use assuming that its seizure is proved and the same is linked to the deceased. Unless the firearm was serviceable and the projectile (bullet) linked with the recovered firearm. It cannot be said that the said projectile was fired from the allegedly recovered firearm, the Katta, it cannot be of much use to the prosecution case. There is also no evidence to show that the bullet in question which was seized vide Ex. P-11 was of .315 caliber. These were matters which the prosecution was required to prove and the prosecution failed to lead any evidence in this behalf.
10. In the light of the above, we are of the view that the alleged recovery of the firearm at the instance of the accused Kamal Singh and the seizure memo of the bullet articles cannot be of any assistance to the prosecution case.
11. As was submitted by the learned counsel for the accused appellant in the light of the statements of PW-2 Dr. Anil Kumar Bansal who conducted the postmortem and in his definite opinion based upon on the condition of the wound and the examination of the x-ray plates, the defence has been able to make out a serious doubt in the prosecution case as to whether the said wound was caused by use of firearm, as is said to be suggested by both the eye witnesses PW-11 and PW-14. There is, therefore, in the instant case, material contradictions in the prosecution case based upon the testimony of PW-2 Dr. Anil Kumar Bansal as to whether the medical evidence is correct or the ocular evidence. We find that a serious doubt arises in the prosecution case based upon the testimony of PW-2 Dr. Anil Kumar Bansal as result of which the benefit of doubt deserves to be given to the accused appellants while disregarding the testimony of the two alleged eye witnesses. There being no other evidence in support of the prosecution case, we hold that the prosecution has failed to prove its case against the two accused appellants beyond reasonable doubt and they are entitled to get the benefit of this doubt.
12. Accordingly, we would set aside the judgment of the learned trial court dated 23.4.2003 passed in Sessions Case No.164/2001 convicting the accused appellants for offence u/s 302 and 302/34 IPC respectively. Their conviction and sentence is accordingly set aside and they are acquitted of the offences charged with.
13. The accused appellant Sher Singh is on bail after his sentence was suspended by this court vide order dated 20.5.2003, as such he need not surrender to his bail bonds. However, in view of the provisions contained in section 437A, Cr.P.C., his bail bonds and surety bonds shall remain in force for a period of six months.
14. The accused appellant Kamal Singh is in jail, he shall be released forthwith, if not required in any other case. On release, the accused appellant Kamal Singh shall submit a personal bond in the sum of Rs.50,000/- with two sureties in the sum of Rs.25,000/- each, to the satisfaction of the learned trial court in accordance with the provisions contained in the Section 437A Cr.P.C. for his appearance before the appellate court if he is required as a result of any appeal being filed.
(Dr. Meena V. Gomber),J. (Dalip Singh),J.
Chauhan/ All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Raj Kumar Chauhan), P