Rajasthan High Court - Jodhpur
Jeet Singh And Ors vs State on 25 July, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:29210-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 492/1989
Jeet Singh And Ors.
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Udit Mathur (Amicus Curiae)
For Respondent(s) : Mr. B.R. Bishnoi, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Reportable
Reserved on 11/07/2024
Pronounced on 25/07/2024
Per Dr. Pushpendra Singh Bhati, J:
1. This criminal appeal under Section 374 Cr.PC. has been
preferred claiming the following relief:
"It is, therefore, humbly prayed that your Lordships may
graciously be pleased to accept the present appeal and set
aside the conviction and sentences passed by the impugned
judgment of the learned Sessions Judge, Ganganagar dated
15-12-89 in Sessions Case No.2/86 (State Vs. Jit singh and
others) and acquit the appellants."
2. The matter pertains to an incident occurred in the year 1985
and the present appeal is pending since the year 1989.
3. The accused-appellants laid a challenge to the judgment of
conviction and order of sentence dated 15.12.1989 passed by the
learned Session Judge, Sri Ganganagar, in Sessions Case
No.02/1986 (State of Rajasthan Vs. Jeet Singh & Ors.), whereby
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the accused-appellants have been convicted and sentenced as
below:
Offence under Sentence
Section
302/34 IPC Life Imprisonment (each of the accused-
appellants)
447 IPC One Month S.I. (each of the accused-appellants)
4. At the outset, it has been brought to notice of this Court that
accused-appellant No.2-Karnail Singh and accused-appellant No.3-
Dalip Singh since already expired, therefore, the instant appeal
qua them already stood abated, as reflected in the orders dated
04.11.2022 and 21.02.2022, respectively. Thus, now the present
appeal survived only against accused-appellant No.1- Jeet Singh,
and the arguments were heard only to the extent of the said
surviving accused-appellant, and the adjudication in the instant
appeal is being made accordingly.
5. Brief facts of the case, as placed before this Court by learned
counsel for accused-appellant, are that as per dying declaration of
Kalwant Singh (deceased), on 12.09.1985 at around 7:15 a.m., he
had gone to get vegetables from his farm. While, he was plucking
rice pods for vegetables from his farm, at around 7:15 a.m., Dalip
Singh s/o Gopal Singh, Karnail Singh s/o Jeet Singh, and Jeet
Singh s/o Sadhu Singh entered the deceased's farm armed with
lathis. Then Karnail Singh dragged the deceased to another field,
while putting scarf around the deceased's neck, and started
beating him with lathi; accused-Karnail Singh hit the deceased
with lathi and his legs. The reason for such joint assault, was that
the deceased misled the relatives of accused-Dalip Singh, which
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resulted into a dispute between Dalip Singh and his relatives.
Thereafter, Naseeb Kaur (PW.3) wife of deceased came there and
started shouting, whereupon all the three accused ran away, and
the deceased son- Gurjant Singh (PW.1) and his brother- Jogendra
Singh (PW.2) also reached at the place of incident, and took the
deceased to a hospital.
6. Thereafter, on 12.09.1985, the deceased gave a dying
declaration (Ex.P/6) before Baldev Singh (PW.6)-Assistant Sub
Inspector of Police Station, Chunawat wherein he stated the whole
story at Government Hospital, Sri Ganganagar. On the basis of the
aforementioned information, an FIR was registered for the
offences under Sections 343, 365, 323 & 447 IPC and the
investigation accordingly commenced.
7. Subsequently, on 16.09.1985 another dying declaration was
recorded in the presence of Magistrate Shri Krishna Joshi (DW.1)
which is the Ex.D/10 wherein deceased-Kalwant Singh stated that
the entire incident had happened at the instance of Mohan Das,
Narayan Das and Har Govind but they had not been prosecuted.
Subsequently, the deceased-Kalwant Singh was transferred to Civil
Hospital, Ludhiana, and during the investigation, on 22.09.1985
Kalwant Singh died under treatment; the death was opined to
have been caused due to the injuries inflicted by the accused-
appellants.
8. The learned Trial Court framed the charges against the
accused-appellants and trial accordingly commenced wherein the
accused were prosecuted under Sections 364, 302/34 and 447
IPC.
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9. During the course of trial, the evidence of 12 prosecution
witnesses were recorded and 43-A documents were exhibited on
behalf of the prosecution and the evidence of 1 defence witness
was recorded and 12 documents were exhibited on behalf of the
accused; whereafter, the accused-appellants were examined, in
which the accused-appellants pleaded innocence and their false
implication in the criminal case in question.
10. Thereafter, upon hearing the contentions of both the parties
as well as considering the material and evidence placed on record,
the learned Trial Court, convicted and sentenced the accused-
appellants under Section 302/34 and 447 IPC, while acquitting
them under Section 364 IPC, as above, vide the impugned
judgment of conviction and order of sentence dated 15.12.1989.
11. Learned counsel for the accused-appellants submitted that
there are two dying declarations; one (Ex.P/6) was recorded
before the police and the other (Ex.D/10) before the Magistrate.
As per learned counsel, in both dying declarations different
persons were named as accused, which shows that there was a
clear contradiction between the contents of both the dying
declarations. It was further submitted that the dying declarations
were not trustworthy because of their high degree of
contradictions, and further on count of the deceased being not in a
fit state of mind, at the relevant time.
11.1. It was also submitted that at the time of recording of the
dying declaration by the police, no certificate was taken from the
doctor, but as regards the later dying declaration recorded before
the Magistrate, the certificate of the doctor was obtained. It was
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further submitted that the persons named as accused in the dying
declaration recorded before the Magistrate, were not made
accused, and no investigation was conducted against them, and
therefore, the impugned judgment is not justified in law.
11.2. It was also submitted that all the three witnesses to the
incident, namely, PW.1, PW.2 & PW.3 were the interested
witnesses, and therefore, their testimonies could not have been
relied upon so as to pass the impugned judgment. It was further
submitted that the independent persons, namely, Ajmer Singh,
Maniram, and Bagga who were the persons to inform the PW.1, at
the first instance, about the incident in question, were not
produced and examined as prosecution witness.
11.3. It was also submitted that apart from the above, a clear
contradiction was there in the deposition made by PW.3 to the
effect that on one side, she stated to have seen the accused
persons beating the deceased with lathi, while on the other hand,
as per her deposition, when she reached the place of incident, the
mouth of the deceased was filled with sand and the same was
taken out by her son and son-in-law, whereafter she asked the
deceased as to who had beaten him up, and therefore, the
deposition given by PW-3 was not a reliable piece of evidence so
as to justify the conviction in question. It was further submitted
that the prosecution failed to prove the malice and motive on part
of the accused for committing the crime in question.
11.4. It was also submitted that the total custody of the surviving
accused-appellant is 5 months and 12 days and presently he is on
bail as the sentence awarded to him was suspended by this
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Hon'ble Court on 09.02.1990; the surviving accused-appellant is
about 71 years old, at present.
11.5. In support of such submissions, learned counsel relied upon
the following judgments:-
(a) Makhan Singh Vs State of Haryana 2022 SCC OnLine SC 1019;
(b) Abhishek Sharma Vs. State (Govt. Of NCT of Delhi) 2023 SCC
OnLine 1358;
(c) Kamla Vs. State of Punjab (1993) 1 SCC 1;
(d) Ratan & Ors. Vs State of Rajasthan (D.B. Criminal Appeal No.
1190 of 2005, decided on 09.01.2015 by a Coordinate Bench of
this Hon'ble Court).
12. On the other hand, the learned Public Prosecutor, opposed
the aforesaid submissions made on behalf of the appellant, while
submitting that the accused-appellant caused the death of the
deceased, and the same had been clearly supported by the
statements rendered by the eye witnesses in the present case.
12.1. It was further submitted that the accused-appellant caused
a total of 9 injuries on vital parts of the deceased's body, and his
death was caused due to such injuries, and therefore it is clear
that the accused-appellant was having a clear intention to cause
murder of the deceased.
12.2. It was also submitted that the dying declaration (Ex.P/6)
recorded before the police was completely reliable as the same
had been corroborated by the depositions of eye witnesses,
medical evidence, recovery of weapon etc., and they all had
supported the prosecution story by the learned Trial Court. It was
further submitted that the accused have come with common
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intention because they were carrying the lathi with a clear mind to
commit murder of the deceased.
13. Heard learned counsel for the parties as well as perused the
record of the case alongwith the judgments cited at the Bar.
14. This Court observes that the deceased's dying declaration
(Ex.P/6) was recorded before the police basing on which the FIR
was registered and the subsequent dying declaration (Ex.D/10)
was recorded before the Magistrate. The deceased died while
under treatment and the trial was conducted for the offences
under Sections 364, 302/34 and 447 IPC, culminating into passing
of the impugned judgment.
15. This Court further observes that in the present case, there
were two dying declarations; First dying declaration (Ex.P/6) was
recorded by Baldev Singh (PW.6)-Assistant Sub Inspector of Police
Station, Chunawat on 12.09.1985, wherein the deceased stated
that he was getting the grains of rice for vegetable from his farm,
at that time, the accused came with lathi and dragged him to
another field and started beating him with lathi, whereafter,
accused-Karnail Singh put a scarf around the deceased's neck and
dragged him to another field, where he was subjected to beatings.
The relevant portion of Ex.P/6 is reproduced as hereunder:-
". . . . .vkt lqcg djhc 7 cts eSa vius [ksr ls lCth ykus x;k Fkk eSa
vius [ksr ls lCth ds fy, pkoyksa dh Qyh;ka rksM+ jgk Fkk ogka ij djhc 7
1@4 cts lqcg nyhiflaag iq= xksikyflag tkfr djhxj fl[k djusyflag iq=
thrflag tV fl[k thrflag iq= lk/kwflag lduk;s Mwaxj flag iqjk vk;s A
ftuds ikl ykBh;ka Fkh vkrs gh nyhi flag us dgk fd rwus gekjs fj"rsnkjksa
dks cgdk dj >xM+k D;ksa djok;k Fkk A eSaus dgk fd geus dqN ugha
fl[kyk;k Fkk A rc djusyflag us xyk ls esjs deht idM+ fy;k vkSj
nyhiflag us ltk gkFk idM+ dj ejksM+ fn;k A thrflag us ykBh esjs exjksa
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esa ekjh vkSj eq>s tcjnLrh vius [ksr dh rjQ [kSapk eSa fxj iM+k rks djusy
flag us esjk lkQk esjs xyk esa Mky fy;k vkSj ?klhVk thrflag nyhiflag us
ykBh;ka gkFkksa iSjksa exjksa ij ekjhA eq>s ?klhV ej vius [ksr esa ys x;s ogka
nyhi flag ds [ksr esa Hkh eq>s ykrksa ykBh;ksa ls [kwc ekjihV fd;k A mu rhuksa
us eq>s ekjihV fd;k A "
16. This Court also observes that on 16.09.1985, another dying
declaration (Ex.D/10) was recorded by the Magistrate Shri Krishna
Joshi (DW.1), wherein the deceased stated an entire different
incident by stating that he was beaten by Mohan Das, Narayan
Das, Har Govind and sons of Bali Singh; the deceased also stated
the reason for the same was a land dispute.
Relevant portion of the Ex.D/10 is reproduced hereunder:-
"esjs eRFks ij yB dh ekjh esjh ihB o Nkrh ij Hkh yB~B dh ekjh A
eksVunkl ekjrk jgk A vkSj dgk >xM+k d:aaxk esjs mlls tehu dk >xM+k
gS rhu ch?ks dk tks 22 ,e ,y esa gh gS A vc Hkkh oks eq>s ekjus dks rS;kj A
eSaus mls ugha ekjk A mlds lkFk gjxksfoUn Fkk A gjxksfoUn ds gkFk essa Hkh
yB~B Fkk vkSj tks lkFk Fks mUgsas eSa tkurk gwa A tks esjs fiaM ¼xkao½ ds gh Fks A
,d ukjk;k.k nkl Fkk muds ikl Hkh yB~B Fkk oks dgrk Fkk jftLVªh djok
nks esjh tehu dh ugha rks eSa rqEgsa ek:axk A ckdh rhu Nksdjs ls Fks os
cyhflag ds yM+ds Fks tks esjs fiaM dk gh gS A cyhflag ds esjk dksbZ >xM+k
ugha A ;g ekjihV lqcg mUgksaus 5&6 cts ds djhc djh lcls vkxs ekjus
okyksa esa ukjk;.k nkl Fkk A"
17. This Court further observes that a perusal of aforequoted
dying declarations of the deceased not only shows a clear
contradiction, as the deceased named different persons to be the
accused of the crime in question, who had caused injuries to him.
Those are the completely different stories with different accused's
name as stated by the deceased in the said two dying
declarations. This Court also observes that learned Trial Court
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relied upon the first dying declaration (Ex.P/6) and impugned
conviction judgment was passed and completely discarding the
dying declaration recorded by the Magistrate. When the two dying
declarations come into the picture, then the prosecution case is
itself on doubt.
18. This Court has seen the precedent laws wherein multiple
dying declaration were recorded. This Court, in this regard, places
reliance upon the judgment rendered by the Hon'ble Apex Court in
the case of Anmol Singh Vs State of M.P (2008) 5 SCC 468,
relevant portion whereof is reproduced as hereunder:-
"13. ... it is not the plurality of the dying declarations but the
reliability thereof that adds weight to the prosecution case. If a
dying declaration is found to be voluntary, reliable and made in
fit mental condition, it can be relied upon without any
corroboration [but] the statement should be consistent
throughout. ... However, if some inconsistencies are noticed
between one dying declaration and the other, the court has to
examine the nature of the inconsistencies, namely, whether
they are material or not [and] while scrutinising the contents
of various dying declarations, in such a situation, the court has
to examine the same in the light of the various surrounding
facts and circumstances."
18.1. This Court further places reliance upon the judgment
rendered by the Hon'ble Apex Court in the case of Lakhan Singh
Vs State of M.P. (2010) 8 SCC 514, relevant portion whereof is
reproduced as hereunder:-
"21. .... In such an eventuality no corroboration is required. In
case there are multiple dying declarations and there are
inconsistencies between them, generally, the dying
declaration recorded by the higher officer like a
Magistrate can be relied upon, provided that there is no
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circumstance giving rise to any suspicion about its
truthfulness. In case there are circumstances wherein the
declaration had been made, not voluntarily and even
otherwise, it is not supported by the other evidence, the court
has to scrutinise the facts of an individual case very carefully
and take a decision as to which of the declarations is worth
reliance."
18.2. This Court also relies upon the judgment rendered by the
Hon'ble Apex Court in the case of Jagbir Singh Vs State (NCT
of Delhi), (2019) 8 SCC 779, relevant portion of which is
reproduced as hereunder:-
"OUR CONCLUSION ON MULTIPLE DYING DECLARATION
31. We would think that on a conspectus of the law as laid
down by this court, when there are more than one dying
declaration, and in the earlier dying declaration, the accused is
not sought to be roped in but in the later dying declaration, a
summersault is made by the deceased, the case must be
decided on the facts of each case. The court will not be relived
of its duty to carefully examine the entirety of materials as
also the circumstances surrounding the making of the different
dying declarations. If the court finds that the incriminatory
dying declaration brings out the truthful position particularly in
conjunction with the capacity of the deceased to make such
declaration, the voluntariness with which it was made which
involves, no doubt, ruling out tutoring and prompting and also
the other evidence which support the contents of the
incriminatory dying declaration, it can be acted upon. Equally,
the circumstances which render the earlier dying declaration,
worthy or unworthy of acceptance, can be considered."
18.3. In the case of Abhishek Sharma Vs State (Govt. of NCT
of Delhi) (Criminal Appeal No. 1473 of 2011, decided on
18.10.2023), it has been held as under:
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[2024:RJ-JD:29210-DB] (11 of 15) [CRLA-492/1989]
"9. Having considered various pronouncements of this court,
the following principles emerge, for a Court to consider when
dealing with a case involving multiple dying declarations:
9.1 The primary requirement for all dying declarations is that
they should be voluntary and reliable and that such statements
should be in a fit state of mind;
9.2 All dying declarations should be consistent. In other words,
inconsistencies between such statements should be 'material'
for its credibility to be shaken;
9.3 When inconsistencies are found between various dying
declarations, other evidence available on record may be
considered for the purposes of corroboration of the contents of
dying declarations.
9.4 The statement treated as a dying declaration must be
interpreted in light of surrounding facts and circumstances.
9.5 Each declaration must be scrutinized on its own merits.
The court has to examine upon which of the statements
reliance can be placed in order for the case to proceed further.
9.6 When there are inconsistencies, the statement that
has been recorded by a Magistrate or like higher officer
can be relied on, subject to the indispensable qualities
of truthfulness and being free of suspicion.
9.7 In the presence of inconsistencies, the medical fitness of
the person making such declaration, at the relevant time,
assumes importance along with other factors such as the
possibility of tutoring by relatives, etc.
18.4. This Court also observes that in the present case, the
deceased had given two dying declarations, one (Ex.P/6) before
the police and another (Ex.P/10) before the Magistrate, and the
contents of both the dying declarations are having material
contradictions as noted hereinabove. But the learned Trial Court
relied on the dying declaration (Ex.P/6) recorded before the police,
while passing the impugned judgment, which in the given
circumstances was not justified in law; more particularly, since the
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aforequoted precedent law makes it amply clear that if any
inconsistencies/contradictions are found in the dying declaration,
then the dying declaration recorded before the Magistrate is to be
relied upon, which was not done in the present case.
19. This Court in the present adjudication has also seen the
other evidence, apart from the dying declarations. PW.3- Naseeb
Kaur, wife of deceased, is the sole eye witness in the present case,
and on a perusal of her statement, it is found that she had stated
that she saw the accused-appellant beating the deceased, and in
that regard also, some contradictions are found. In the given
circumstances, the impugned judgment on the basis of her
statement also, coupled with the clear contradictions as noted
above, is not sustainable in the eye of law.
20. This Court further observes that the police authority
recovered the lathi (weapon) used for causing death of the
deceased on the basis of disclosure information given by the
accused-appellant in the presence of two witnesses (Motbir) i.e.
Gurdev Singh and Prakash; but the none of the witnesses (Motbir)
was present before the learned Trial Court for examination, and no
reason was assigned for the same. Therefore, the same among
other things, is fatal to the prosecution case.
21. This Court also observes that when multiple dying
declarations were recorded, and inconsistencies/contradictions
were found therein, then the statement that has been recorded by
a Magistrate or like higher officer can be relied on, subject to the
indispensable qualities of truthfulness and being free of suspicion.
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This Court further observes that after
inconsistencies/contradictions were recorded in a case then the
other corroborative evidence are required. In the present case,
there is no strong corroborative evidence, to support the claim of
the prosecution that the dying declaration recorded by the police
is reliable, and not the one as recorded by the Magistrate.
22. This Court also observes that when the judgment of
conviction is challenged before the Appellate Court, a proper
appreciation of the evidence recorded by the learned Trial Court
has to be made. The power of the Appellate Court is provided
under Section 386 of Cr.PC, which reads as under:-
"(b) in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or discharge the
accused, or order him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate Court or committed
for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, but not so as
to enhance the same--"
23. Now, as regards, the scope of interference in the judgment
of conviction passed by the learned Trial Court, it is considered
appropriate to reproduce the relevant portion of the judgment
rendered by the Hon'ble Apex Court in case of Kamlesh
Prabhudas Tanna v. State of Gujarat, (2013) 15 SCC 263, as
hereunder:-
"......
10. In Rama v. State of Rajasthan [(2002) 4 SCC 571:
2002 SCC (Cri) 829], the Court has stated about the duty of
the appellate court in the following terms: (SCC p. 572, para 4
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"4. ... It is well settled that in a criminal appeal, a duty is
enjoined upon the appellate court to reappraise the
evidence itself and it cannot proceed to dispose of the
appeal upon appraisal of evidence by the trial court alone
especially when the appeal has been already admitted and
placed for final hearing. Upholding such a procedure would
amount to negation of valuable right of appeal of an
accused, which cannot be permitted under law."
......
12. Recently, a three-Judge Bench in Majjal v. State of Haryana [(2013) 6 SCC 798] has ruled thus: (SCC p. 800, para 7) "7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter."
24. This Court further observes that there are reliable and cogent evidence on record that the accused-appellant's conviction deserves to be reversed, from conviction to acquittal, as provided under Section 386(b)(i) of Cr.P.C pertaining to "reverse the finding and sentence and acquit".
25. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, as well as in view of the aforementioned precedent laws, the present appeal is allowed. Accordingly, while quashing and setting aside the impugned (Downloaded on 26/07/2024 at 09:46:36 PM) [2024:RJ-JD:29210-DB] (15 of 15) [CRLA-492/1989] judgment of conviction and order of sentence dated 15.12.1989 passed by the learned Session Judge, Sri Ganganagar, in Sessions Case No.02/1986 (State of Rajasthan Vs. Jeet Singh & Ors.), the appellant is acquitted of the offence under Sections 302/34 and 447 IPC. The sentence awarded to the accused-appellant already stood suspended, as noted hereinabove. His bail bonds stand discharged. All pending applications stand disposed of. Record of the learned Trial Court be sent back forthwith.
26. This Court is thankful to Mr. Udit Mathur, who has rendered his assistance as Amicus Curiae, on behalf of the accused-appellant, in the present adjudication.
(MUNNURI LAXMAN),J (DR.PUSHPENDRA SINGH BHATI),J SKant/-
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