Rajasthan High Court - Jaipur
Roop Singh @ Jagroop Singh And Ors. vs State Of Rajasthan on 10 April, 2000
Equivalent citations: 2000(2)WLN603
Author: N.N Mathur
Bench: N.N. Mathur
JUDGMENT N.N Mathur, J.
1. This appeal is directed against the judgment dated 12.7.1997 passed by the learned Sessions Judge, Hanumangarh convicting the appellant Roop Singh @ Jagroop Singh, Nirmal Singh, Kor Singh and Gurmail Singh for offence under Section 302/34 I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs. 500/-and in default of payment to further undergo six months R.I.
2. On 15.6.1984 at 10.00 P.M. PW/2 Mandar Singh submitted a written report Ex. P/1 at Police Station, Hanumangarh Junction, stating interalia that at about 6.00 P.M. he was returning form the field along-with his younger brother Jaspal Singh and PW/1 Jaskaran. Jaspal Singh was ahead of him at a distance of 2-1/2 bighas. When his brother Jaspal Singh reached near the field of Gurnam Singh the accused Gurmail Singh, Roop Singh, Kor Singh and Nirmal Singh armed with Gandasis came out from a 'Kotha'. Seeing them Jaspal Singh started running. Accused persons chased and caught hold of him. They assaulted him by Gandasis. On being challenged by them (complainant), the accused persons took to the heels. They took Jaspal Singh in a tractor to the hospital at Hanumangarh Town, where doctor declared him dead. On this information police registered a case for offence under Section 302 read with Section 34 I.P.C. and proceeded with the investigation. The police prepared inquest and send the dead body of Jaspal Singh for post-mortem. The recovery of Gandasis were made from each of the accused persons except Gurmail Singh. The Police was of the view that Gurmail Singh was not on the spot and therefore, laid the chargesheet on 27.7.1994, only against three accused persons namely Roop Singh, Kor Singh and Nirmal Singh, in the court of Judicial Magistrate, 1st Class, Hanumangarh. On the same day a protest petition was submitted by the learned Counsel for the complainant. It was posted for arguments on 3.8.1994. The learned Magistrate after perusing the record and hearing the learned Counsel for the complainant and the learned Astt. Public Prosecutor took cognizance against all the four accused persons namely Gurmail Singh, Roop Singh, Kor Singh and Nirmal Singh for offence under Section 302/34 I.P.C.
3. All the accused persons denied the charge and claimed trial. The prosecution in support of the case examined 8 witnesses and produced certain documents. The accused persons in + statement under Section 313 Cr. P.C. denied the correctness of the prosecution evidence against them. The accused Gurmail Singh pleaded alibi and stated that on the date of incident he had gone to Goluwala Mandi for repairing of the tractor. The accused persons in defence examined 8 witnesses. On analysing the evidence the trial court found the charges proved against all the four accused appellants. Accordingly, convicted each of them of offence under Section 302 read with Section 304 I.P.C. and sentenced as noticed above.
4. We have heard learned Counsel for the parties and scanned the prosecution evidence carefully. PW/3 Dr. Rajendra Kumar Gupta stated that he conducted the post-mortem of the dead body of Jaspal Singh and found following injuries on his person:
1. Swelling with Redless 2"x1" left hand (D)
2. lacerated wound 2-1/2" x 1/8" x muscle deep on the Rt. leg Ant-post 1/3.
3. Incised wound 1" 1/4"x muscle deep on the left leg upper 1/3rd Ant.
4. Incised wound 1" x 1/4 x muscle deep left leg (M) 1/3rd lat.
5. Swelling with abrasion 2" x 1" on left (111)
6. Swelling with bruise 2"x 2" on Rt. arm lower 1/3rd Ant. bone.
7. Rt. Ear.
8. Brusise 2"x1" left Arm let.
9. Bruise with Abrasion 1 1/2" x 1" left elbow let.
10. Swelling left forearm lower 1/3rd left radius bone fracture.
11. Lacerated wound 1" x 1/4" x scalp deep Rt frontal region.
12. Lacerated wound 1-1/2" x 1/4" x scalp deep Rt. fronto parietal region.
13. Incised wound 1-3/4" x 3/8" x Bone deep left parietal region.
14. Incised wound 2 /12" x 1/2" x bone fracture left parieto occipital region near mid line.
He proved post-mortem report Ex. P/7. He found injuries No. 3, 4, 13 & 14 caused by sharp edged weapon and rest of the injuries caused by blunt object. He also found injuries No. 6, 7, 10 and 14 grievous in nature and rest of the injuries simple in nature. In his opinion the cause of death was injury to brain due to injury No. 14. In the cross-examination he admitted that injuries No. 6, 7 and 10 even taken cumulative, were not sufficient to cause death. He also admitted that if the deceased would have been provided immediate medical help of Neuro Surgeon, he would not have died.
5. PW/1 Jaskaran has stated that on the date of incident at about 6.00 p.m. he was returning from the field along with Mandar Singh. Jaspal Singh was ahead of them. When Jaspal Singh reached near the field of Gurnam Singh, the accused persons Gurmail Singh, Roop Singh, Kor Singh and Nirmal Singh came out from a hut. All the four accused persons were carrying 'Gandasis' in their hand. They surrounded Jaspal Singh and assaulted him by Gandasis. On being challenged the accused persons left him and ran away. They took him to the hospital at Hanumangarh in a tractor. The Doctor declared him dead. He admitted enmity between the parties and stated that a false case was foisted by Gurmail Singh against Mandar Singh and Jaspal Singh. He also stated that at the time of election for the members of Legislative Assembly, a quarrel had taken place between the two groups.
6. PW/2 Mandar Singh has stated that on the date of incident at about 5.30 P.M. he was returning from the field. He was accompanied by his brother Jaskaran Singh and Jaspal Singh. Jaspal was ahead of them. When he reached near the field of Gurnam Singh, the accused Gurmail Singh, Roop Singh, Kor Singh and Nirmal Singh came out from the hut constructed on the field of Gurnam Singh. All of them were armed with Gandasis. They surrounded Jaspal Singh and assaulted him by Gandasis. On being challenged, they left him and ran away from the spot. Jaspal Singh was taking to the hospital at Hanuman Garh where he was declared dead. He has also proved various memos prepared by the Police. In the cross-examination, he admitted that a case with respect to the incident which took place about 2-1/2 year back for assault on Gurmail Singh was pending in the same court. He also admitted that the injuries were caused to the victim from both the sides of the Gandasis. However, he could not say as to the individual injury caused to the deceased by individual accused persons.
7. PW/4 Balbeer Singh is the witness of recovery of weapons of offence from each of the accused persons.
8. PW/5 Mahaveer Prasad and PW/6 Om Prakash are the formal police witnesses. PW/7 Richpal Singh is the Investigating Officer. He has given all the details of the investigation. PW/8 Gurlal Singh has not supported the prosecution case and as such he has been declared hostile.
9. The main criticism levelled against statements of two eye witnesses namely PW/1 Jaskaran Singh and PW/2 Mandar Singh is that their statements stand falsified by the medical evidence. The two eye witnesses namely PW/1 Jaskaran Singh and PW/2 Mandar Singh, are undoubtedly interested witnesses. But that cannot be a ground to discard their testimony. It however, certainly puts the court on guard to scrutinise their evidence more carefully. Both the witnesses in terms have stated that all the four accused persons assaulted the deceased Jaspal Singh by Gandasis. This part of the statement does not find full corroboration from the medical evidence. Out of 14 injuries on the person of the deceased Jaspal Singh, only 4 injuries have been caused by sharp edged weapon and rest of the injuries are caused by blunt object. There is no material on record to show as to how the deceased Jaspal Singh sustained injuries by blunt object. It is significant to notice that three injuries are grievous in nature caused by blunt object. Normally, when the sharp edged weapon is used, there is no warrant for supposing that the blunt side of the weapon was used. PW/2 Mandar Singh ofcourse, in the cross-examination stated that the accused persons caused injuries to the victim by both the sides of Gandasis. In these circumstances, it is difficult for us to place implicit reliance upon the testimony of PW/1 Jaskaran Singh and PW/2 Mandar Singh. Thus we place both these witnesses in the category of partly reliable witnesses.
10. The prosecution has proved the evidence of recovery of weapons of offence from each of the accused persons. The accused Roop Singh was arrested on 19.6.1994 vide Ex. P/23. A blood stained Gandasi has been recovered vide Ex. P/8 in pursuance of the information give vide Ex. P/27. The accused Kor Singh was arrested on 19.6.1994 vide Ex. P/24. A blood stained Gandasi was recovered vide Ex. P/10 in pursuance of the information give by him recorded vide Ex. P/26. The accused Nirmal Singh was arrested on 19.6.1994 vide Ex. P/25. The blood stained Gandasi has been recovered vide Ex. P/12 in pursuance of the information memo Ex. P/28. All the relevant memos have been proved by PW/4 Balbeer Singh and PW/7 Richpal Singh. PW/6 Om Prakash has stated that he was the Incharge of the 'Malkhana'. PW/7 Richpal Singh deposited him three sealed packets. They remained in his custody in sealed condition. They were delivered to PW/5 Mahaveer Prasad on 28.7.1994. PW/5 Mahaveer Prasad has stated that after receiving the packets from the 'Malkhana', he delivered the same in sealed condition at the Forensic Science Laboratory, Jaipur. Ex. P/29 shows that all the packets in sealed condition were received at the F.S.L. at Jaipur on 29.7.1994 as per special messenger. He found all the three Gandasis recovered from the accused persons smeared with human blood. He also found that they were stained with 'A' group blood. He also found the Kamij, Kachha, Tehmad and Safa of the deceased smeared with 'A' blood group. Thus, the testimony of PW/1 Jaskaran Singh and PW/2 Mandar Singh finds corroboration from the recovery of blood stained Gandasis as against the accused Roop Singh, Kor Singh and Nirmal Singh. Thus, the prosecution has succeeded in establishing the presence and participation of the aforesaid three accused persons in the incident.
11. There is no recovery from the accused Gurmail Singh. It is submitted by the learned Public Prosecutor that as Gurmail Singh was not arrested, No recovery could be made from him. It is also submitted that the Investigating Officer has obliged him by not arresting. It is not necessary for us to go into this aspect. There is no evidence of recovery of weapon of offence against the accused Gurmail Singh. In absence of such corroborative evidence, we do not consider it safe to uphold conviction of Gurmail Singh on the sole testimony of PW/1 Jaskaran and PW/2 Mandar Singh. The accused Gurmail Singh is entitled to the benefit of doubt.
12. It is contended by Mr. M.L. Garg, learned Counsel appearing for the appellant that there is no evidence to show as which accused caused fatal injury and as such no inference can be drawn that all the accused persons shared common intention to commit the murder of Jaspal Singh and as such the conviction of the three accused persons cannot travel beyond Section 326 or at the most Section 304 part (II) I.P.C. On the other hand, it is submitted by Mr. Kharlia that both the eye witnesses interms have stated that the accused persons all of sudden came out from the hut and assaulted deceased Jaspal Singh by deadly weapon like Gandasi and, therefore, the only inference which can be drawn is that each of them shared common intention to cause death of Jaspal Singh.
13. We have given our anxious consideration to the rival contentions. It is significant to notice that out of 14 injuries only 4 injuries have been caused by sharp edged weapon and out of 4 injuries only injury No. 14 is grievous in nature, rest of the three injuries are simple in nature caused by Sharp edged weapon. If the intention of the accused persons was to kill Jaspal Singh they would not have caused simple injuries, inspite of that they were armed with deadly weapon like Gandasi. Even if it is assumed that three accused persons were responsible for causing 10 injuries by using opposite side of the Gandasis then also no intention of causing murder can be attributed. If they intended to commit murder, they would have not cause the injuries by blunt side of the Gandasi. In these circumstances, the only inference which can be drawn is that the three accused persons namely Roop Singh, Kor Singh and Nirmal Singh caused injuries with the knowledge that their act may cause death.
14. Thus, the accused appellants Roop Singh, Kor Singh and Nirmal Singh are liable to be convicted of offence under Section 304(II)/34 I.P.C.
15. Consequently, this appeal is partly allowed and the conviction of the appellants namely Roop Singh, Kor Singh and Nirmal Singh for offence under Section 302/34 I.P.C. is quashed and set aside. So far the accused Gurmail Singh is concerned, he is given benefit of doubt as stated above. However, accused appellants namely Roop Singh, Kor Singh and Nirmal Singh are convicted of offence under Section 304(II)/34 I.P.C. The accused persons are in jail for substantial period. As they have already served out the substantial period of the sentence, their sentence is reduced to the period already undergone. The appellants namely Roop Singh @ Jagroop Singh S/o Gurmail Singh, Kor Singh S/o Gurbakshish Singh, Nirmal Singh S/o Amarjeet Singh and Gurmail Singh S/o Nand Singh shall be enlarged forthwith, if not required in any other case.