Rajasthan High Court - Jodhpur
Bachan Singh & Ors vs State on 31 March, 2009
Author: N.P.Gupta
Bench: N.P.Gupta
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
1. D.B. CRIMINAL APPEAL No. 29 of 1983
BACHAN SINGH & ORS. V/S STATE
2. D.B. CRIMINAL APPEAL No. 46 of 1983
AJMER SINGH & ANR. V/S STATE
Date of Judgment : 31st March, 2009
PRESENT
HON'BLE SHRI N.P.GUPTA,J.
HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J.
Mr. M.K.Garg & Mr. JR Choudhary, for the appellants.
Mr. AR Nikub, P.P.
BY THE COURT: (Per Hon'ble Gupta, J.)
These two appeals have been filed by different accused persons against the common judgment of the learned Additional Sessions Judge, Raisinghnagar dt. 14.1.1983, convicting them as under:-
Bachan Singh s/o Gurdayal Singh:- u/s.148, 307, 302, 323/149, 324/149 and 326/249 IPC.
Gurcharan Singh s/o Gurdayal Singh:- u/s. 148, 307/149, 302/149, 326 in the alternative 326/149, 324 in the alternative 324/149 and 323/149 IPC. 2 Ajmer Singh s/o Ramrakha :- u/s. 148, 307/149, 302/149, 326/149, 324/149 and 323/149 IPC. Makhan Singh s/o Gurbachan Singh:- u/s. 148, 307/149, 302/149, 326/149, 324/149 and 323/149 IPC. Gurdayal Singh s/o Jawala Singh:- u/s. 148, 307/149, 302/149, 326/149, 324/149 and 323/149 IPC. And therefore, both these appeals are being decided by this common order.
Appeal No. 29 has been filed by four accused persons, being Bachan Singh, Gurcharan Singh, both sons of Gurdayal Singh, Gurdayal Singh s/o Jawala Singh, and Makhan Singh s/o Gurbachan Singh, while Appeal No. 46 has been filed by two accused persons, being Ajmer Singh and Harnam Singh. During pendency of the present appeals accused Gurdayal Singh in Appeal No. 29, and accused Harnam Singh in Appeal No. 46, have died, which fact is not in dispute, consequently the appeals of both these accused abate. Thus, the appeals survive on behalf of only four accused persons, being Bachan Singh, Gurcharan Singh, Makhan Singh and Ajmer Singh.
Brief facts of the case are, that on 1.4.78 at about 10 past 6 in the morning Dharam Singh, P.W.1 lodged an oral report, to the effect, that he lives in Chak 40 NP, separately from his parents, while his parents and brother of the father lives in the Abadi of Chak No. 41 NP. Similarly Pyaru Singh and his wife 3 are also living for the last 3 months in 41 NP. With this, it was alleged, that some 7 days before the report, there was a dispute between Pyaru Singh and his wife Vidhya, and therefore, Vidhya left the matrimonial home, and contacted Nata with the younger brother of the informant, being Harnam Singh, and started living there with him. Then two days before the report, Panchayat was got convened by Pyaru Singh, wherein it was resolved, that Vidhya would be handed over back to Pyaru Singh. This was accepted by the father of the informant, and she was to be returned on the morning of the day of the report. Since Vidhya had gone to her parental house, in the last evening she was brought back to his father's house, and the father told the informant, that she is to be handed over to Pyaru, then the informant went to his house. However, at about 12.30 in the night, one tractor of Madho Singh came to house of Kehar Singh in Chak 40 NP, wherein some persons being resident of 41 NP were there, which aroused suspicion, then after some time he went to his father's house, and saw that near their house, Gurdayal Singh, Harnam Singh, Gurbachan Singh, Ajmer Singh, Bachan Singh, Makhan Singh, Gurcharan Singh @ Charni, Pyaru and younger son of Bachan Singh, along with 2-3 more persons being Bawari r/o Chak 41 NP were collected. Bachan Singh was armed with double barrel muzzle loading gun, while others were armed with Lathis and Gandasi. On looking at them he told his father, Bahnoi Gurdayal Singh and Santa Singh etc. about this fact. Then, along with informant's father 4 they came out. Informant's father told Bachan Singh etc. as to how they had come at this odd time. Thereupon accused persons encircled them, and blocked way of the house. Then, in order to save themselves, they ran towards 40 NP, and after travelling about 2 killas the accused persons chased them, and at that time Bachan Singh fired at the informant, which fortunately did not hit. Then, his father and Bahnoi Gurdayal Singh were caught from behind by the accused, Gurdayal Singh and Harnam Singh etc., and injuries were inflicted on him with Gandasi and Lathi. In the meantime Bachan Singh also arrived, and he fired the second shot on the informant's father Arjun Singh, which hit on the chest, who died on the spot. However, he could be able to snatch the gun from Bachan Singh, and at that time injuries were also inflicted on his right hand, and head, with Gandasi and Lathi, then looking many persons coming from towards 40 NP, accused persons took to heals. Then, it started raining, and on its stopping, he has come to lodge the report. The dead body is lying in the field. On this report a case under Section 302, 307, 326, 324, 323, 447, 147, 148, 149 IPC and 27 Indian Arms Act was registered, and investigation was commenced. After completing the investigation, challan was filed by the police against nine accused persons, being Ajmer Singh s/o Ramrakha, Bachan Singh s/o Gurdayal Singh, Gurcharan Singh s/o Gurdayal Singh, Makhan Singh s/o Gurbachan Singh, Pyaru @ Pyara Singh, Harnam Singh s/o Sunder Singh, Bachan Singh @ Gurbachan Singh, Gurdayal 5 Singh s/o Jawala Singh, and Baldev Singh s/o Gurbachan Singh.
Learned trial court framed charges against the accused persons for different offences, inasmuch as accused Bachan Singh was charged for the offence under Section 148, 307, 302, 324 and in the alternative 324/149, 323 and in the alternative 323/149, 326 and in the alternative 326/149 IPC and 27 of the Indian Arms Act, while all other accused persons were charged for the offences under Section 148, 307/149, 302/149, 324 and in the alternative 324/149, 323 and in the alternative 323/149, 326 and in the alternative 326/149 IPC. All the accused persons denied the charges.
During trial the prosecution examined 14 witnesses, and tendered in evidence some 46 documents, while the defence did not lead any evidence in defence. In the statements under Section 313 Cr.P.C., the stand taken by some of the accused persons, (specially the accused persons whose appeal survives, except Makhhan Singh) was, that Bachan Singh along with four more persons were sent by the Panchayat to call Arjun Singh (deceased), whereupon five persons went to the house of Arjun Singh, and conveyed that Panchayat is calling them, at that time at the house of Arjun Singh, apart from Gurdayal Singh four more Gundas were there, while Dharam Singh was not there, and those persons told them, that "पच यत क ज न क पत 6 हम दत ह", and started giving beating. Accused Bachan Singh also stated, that he and his companions started rushing towards village, still he was beaten, and his companions also tried to save, and in that process Dhakka Mukki was done, and he does not know as to how Arjun Singh died. Bachan Singh did not give name of his other companions. However, the accused Gurcharan Singh disclosed, that Panchayat had sent him, Bachan Singh, Gurdayal Singh, Harnam Singh, and Ajmer Singh, to call Arjun Singh. Regarding the other four accused persons, stand was taken that they have been falsely implicated, because they are taking side of Pyaru Singh.
Learned trial court after completing the trial acquitted the accused Pyaru @ Pyara Singh, Gurbachan Singh s/o Krapa Ram and Baldev Singh s/o Gurbachan Singh, while convicted the other six accused persons as above. It may be observed here, that accused persons, victim, and the prosecution witnesses also some times bears the same name, and therefore, at times, they would be referred to as the accused, or as the witness.
Arguing the appeal, learned counsel for the appellants submitted, that the prosecution is sought to be rested on the evidence of the family members, or near relations, apart from the fact, that three witnesses P.W. 5, P.W. 6 and P.W.7, being Gurbachan injured, Santa Singh, and Bhagwan Singh have not 7 supported the prosecution case. Then it was submitted, that five of the accused persons, being Gurdayal Singh, Ajmer Singh, Harnam Singh, Gurcharan Singh, and Gurbachan Singh are also injured persons, as is proved from their respective injury reports being Ex.P-40 to Ex.P-44, which have been duly proved by the doctor P.W. 13 Dr. Surendra Mohan Sharma, and a look at them shows, that according to Ex.P-40 Gurdayal Singh had 5 injuries, according to Ex.P-41 Ajmer Singh had 2 injuries, according to Ex. P-42 Harnam Singh had 6 injuries, according to Ex.P-43 Gurcharan Singh had 3 injuries and according to Ex.P-44 Gurbachan Singh had 20 injuries, and out of that, there is a fracture of 7th rib, as is clear from X-Ray Report Ex.P-46. While none of the prosecution witnesses have explained any of these injuries, which are huge in number, which clearly shows, that the prosecution has come up with false case, and the real story is, as deposed by the accused persons, in their statement under Section 313 Cr.P.C., and as deposed by P.W. 2 Gurdayal Singh, who had been declared hostile, and all this clearly shows, that the alleged act of the accused persons was clearly covered by their right of private defence.
Then, elaborating the argument it was also submitted, that the star witness P.W. 1 Dharam Singh, who claims to be eye witness, is the son of the deceased Arjun Singh, various infirmities in his statement have been highlighted, by submitting, that even according to this witness P.W.1, he had already gone to his house at Chak 40 NP in the night, and thereafter there was 8 no occasion for him to go to Chak 41 NP, and he has cooked up the occasion about tractor of Madho Singh having come to house of Kehar Singh, wherein many persons were travelling, but then, neither Madho Singh nor Kehar Singh was examined by the prosecution, even though they are also shown as Motbirs of various memos. Then, even if it is assumed that he had gone, the story about his seeing the accused persons, identifying them, and conveying it to his father Arjun Singh, is thoroughly discrepant, and at various places varying versions have been given, viz. whether the accused persons were sitting ambush the heaps of grass (kumpa) which are scattered on the spot, or they were outside the house, whether he identified them in the torch light, and then informed the father, or only on hearing that some people are camping in the field at different places in suspicious circumstances, informed this fact to his father, then he along with his father, and other persons came out of the house, and called the camping persons their object of being there, and identified them in the torch light etc. Then, it was also submitted that the place where the dead body is lying is at a distant place from the house, and two empties have been recovered from different killas. Then, in the photograph a cloth Potli is also visible, which also shows, that it is the defence version, which is clearly correct, that in the dead hour of the night the accused persons were going to take away Vidhya at village 1-MD, and there the trouble arose. Then, according to P.W.1 the gun 9 was fired from the close range, while according to Doctor there is dispersion in the entry wounds. Then, regarding gun also there are discrepancies, inasmuch as according to the witness P.W.1 he had handed over the gun in the police station before lodging the report, while according to I.O. P.W.9 Prakash Chand, he had recovered the gun from the witness P.W.1 Dharam Singh. It was also submitted, that he clearly denies to have seen any injuries on any of the accused persons, which belies the fact of his being eye witness. It was also submitted that the witnesses are two brothers only, the other being Harnam Singh, with whom Vidhya had contacted Nata, and who is physically disabled. Thus, no reliance could be placed on this witness, whereas the learned trial court had placed implicit reliance on this witness P.W.1 Dharam Singh, for finding six accused persons guilty, which is clearly bad. It was also submitted, that occurrence is said to have occurred at 1 in the night, and it is stated that the whole night it rained, and report is said to have been lodged at 10 past 6 in the morning, but it reached the Magistrate at 15 past 5 in the evening, which shows that F.I.R. was subsequently manipulated. It was also submitted, that in the F.I.R. there is no mention about there being any torch with him. It was also submitted, that according to the F.I.R. the accused persons had camped near the house, while in the court statement he has deposed, that they were camping behind the grass heaps. Admittedly no occurrence had taken place at the house. It was also 10 submitted that despite it having rained all over the night, the police had purported to collect the soil smeared with blood. It was also submitted that according to this witness, accused Harnam Singh and Gurcharan Singh @ Charni had inflicted injuries on him with Gandasi and Lathi, while according to Injury Report Ex.P-39, he had sustained only two abrasions, which are blunt weapon injuries. It was also submitted that village 41 NP is having an Abadi of about 100 houses, but nobody came even to intervene, and no one from the Abadi has been produced. Then, commenting upon the conduct of the witness, it was submitted, that after incident the witnesses have gone to the house, and slept, while the deceased was allowed to be kept lying at the place of incident itself. Regarding non explanation of injuries on the accused persons, learned counsel relied upon the judgments of the Hon'ble Supreme Court, in Shiv Karan Vs. State of Rajasthan reported in 1998 SCC(Cri.)-712, Lakhwinder Singh Vs. State of Punjab reported in 2003 SCC(Cri)- 1426, and Balwan Singh Vs. State of Haryana reported in (2006) 1 SCC (Cri) 108.
Learned Public Prosecutor, on the other hand, supported the impugned judgment.
We have considered the submissions made by the learned counsel for the appellant, and have gone through the entire record very closely. 11
At the outset it may be observed, that learned counsel for the appellant is right, when he contends, that the statement of star witness P.W.1 Dharam Singh contains infirmities, and does contain improvements, and is the son of the deceased, but then, this require us to scan the statement of all the material on record very closely, to find out as to whether his evidence is to be discarded altogether, or has rightly been relied upon by the learned trial court.
We find, that out of the prosecution witnesses examined P.W.1 Dharam Singh, P.W.2 Gurdayal Singh, P.W.3 Harnam Singh, P.W.4 Vidhya, P.W.5 Gurbachan Singh, P.W.6 Santa Singh, P.W.7 Bhagwan Singh, and P.W.11 Rajkaur have been produced as eye witnesses/ material witnesses to substantiate the prosecution case, while P.W. 13 and 14, Dr. Surendra Mohan Sharma, and Dr. Ramlal Goyal are the doctors who had examined the injuries of the injureds and the deceased. Out of these eight important witnesses, as noticed above, P.W.2 Gurdayal Singh, P.W. 5 Gurbachan Singh, P.W. 6 Santa Singh, and P.W. 7 Bhagwan Singh have not supported the prosecution, and therefore, they have been declared hostile.
At this place we may also observe, that it is of course established legal position, that the accused persons are not bound to give out their version of the incident, much less correctly. Their statement under 12 Section 313 are to be recorded for the purpose of enabling them to explain the evidence and circumstances appearing against them in the prosecution case, but they are not bound to explain it either, and even if they do not explain, any adverse inference cannot be drawn on that account against them, and the prosecution, of course, is bound to project the case correctly, and prove it beyond all reasonable doubt, in order to bring home guilt against the accused. But then, it is also established legal position, that if the accused persons offer explanation in their statement under Section 313 Cr.P.C., that can be used in deciding the case, and can be used against the accused persons as well.
Though it is the duty of the prosecution to lead correct and truthful evidence, but then, if on some aspects the witness chose to lie, or make improvements, their entire evidence cannot be thrown out altogether, as in criminal case "falsus in uno falsus in omnibus" is not the principle applicable in India.
Keeping in mind the above principles, we have to appreciate the evidence of the prosecution, in conjunction with the defence, with the explanation given out by the accused persons, of the story projected by them in the evidence, and find out, as to whether from the reliable part of the evidence of the prosecution, any offence is brought home to all, or 13 any of the appellants, whose appeal survives.
As noticed above, it was argued that the prosecution has sought to rely, and rest its case on the evidence of family members, and near relations only. In our view, it is established legal position that the testimony of witness cannot be thrown away simply on the ground of his being a family member, or near relation of the victim. The evidence of such witness may be required to be examined, more critically, which we shall do.
So far as three witnesses P.W.5, P.W. 6 and P.W.7, having not supported the prosecution case is concerned, we shall examine the case on the basis of other evidence available on record.
Then, coming to the effect of injuries found on the person of the accused, and the prosecution having cooked up false case, and the real story being the one, as deposed by the accused persons in their statement under Section 313, and as deposed by P.W.2 Gurdayal, we shall consider this aspect later, after appreciating the evidence of the two witnesses Dharam Singh and Gurdayal, in conjunction with the statement of the accused persons recorded under Section 313. Obviously, at that time we shall also examine the aspect, as to whether the act of the accused is protected by their alleged right of private defence. 14
Since the learned trial court has relied upon the evidence of Dharam Singh P.W.1, in convicting the six appellants, we better stand advised to first of all critically examine the evidence of this star witness Dharam Singh.
Dharam Singh in his evidence has deposed, that he lives in 40 NP, while his parents and brother live in 41 NP. His Bahnoi Gurdayal Singh (P.W.2) lives with his father (Arjun Singh). Then he stated that some six months back Vidhya, the wife of Pyaru had contacted Nata with his brother Harnam. Three days thereafter Pyaru called a Panchayat, which decided, that Vidhya should be handed over back to Pyaru, to which his father agreed. Then, on the next day of decision of Panchayat, Gurdayal Singh had gone to fetch Vidhya from her parental house. Then, Gurdayal Singh, Bachan Singh, Mst. Bhago and Santa Singh had brought Vidhya from her parental house to his father's house, who reached at 6 in the evening, at which time he was there at the father's house. Then, he went to his own house. Then, he stated that at about 12 in the night, tractor of Madho Singh came from 41 NP to 40 NP at the house of Kehar Singh, wherein 5-6 persons were travelling, being Kehar Singh, Hajara Singh, Chanan Singh, Madho Singh, and one more person, who were telling, that at the house of Arjun Singh some Gundas have come, thereupon he went to 41 NP to see his father, he threw torch light and saw that 8-9 people were camping near Kumpas, and identified them as 15 accused Bachan Singh s/o Gurdayal Singh, Charni s/o Gurdayal Singh, Makhan Singh s/o Arjun Singh, Baldev Singh s/o Bachan Singh, Harnam Singh s/o Sunder Singh, Ajmer Singh, and some more persons were there, to whom he had seen in the light of torch, he does not remember. Then, he awakened his father, who asked all the persons as to who they are, whereupon those persons encircled them. Then, he, his father, Gurdayal Singh and Bachan Singh s/o Gurdayal Singh ran away, at that time accused Bachan Singh fired at him, which did not hit, then all the accused persons came near them, and then accused Bachan Singh fired shot at his father, which hit on the chest, and the other accused persons inflicted injuries with Lathis and Gandasies on his father, and on him. Injuries were caused to Gurdayal Singh also. He stated, that he was having a Lathi, which was also wielded by him. Then, when Bachan Singh was re-loading the gun, he snatched it, which gun was double barrel muzzle loading gun, in the meanwhile tractor of Madho Singh came, and seeing that all the accused persons ran away, his father died on the spot. Then, he has stated that Bachan Singh had gun, Harnam Singh and Charni were armed with Gandasa, Ajmer Singh was armed with Sela, and others were armed with Lathis. Then, at 6 in the next morning he lodged report at Police Station Raisinghnagar, and proved Ex.P-1. Then, police people came with him and prepared Inquest Report, and other Memos Ex.P-4 to P-9, which he has proved to be bearing his signatures. Empties were recovered from the spot. He had produced the gun 16 to the police, and soil was also collected from the spot. This is the entire statement, in examination in chief.
Then, in cross examination he has stated, that there had been no enmity earlier with Gurdayal Singh and his sons, though they were not on visiting terms, but he was knowing them, though he did not know entire family. He stated to be living in 40 NP for the last 20-25 years. However, for the last 3 years he is living in 41 NP, which is inhabited by around 40 houses, while Chak 41 NP has about 100 houses. He has denied to be knowing accused Harnam Singh, being Behnoi of Gurbachan Singh. According to him Pyaru and Vidhya were residing in 41 NP for the last 3 months before the incident, though they had no land or property in 41 NP, and were living in the house of Pratikaur. He had purchased a cow from Pyaru. Then, he stated that Vidhya had gone with Gurdayal Singh to Raisinghnagar for getting recorded her statement. Gurdayal Singh is said to be Bahnoi of the witness, and to be a witness in the case. Vidhya was deposed to be resident of 16-O, and the way to that village is through Raisinghnagar. Kehar Singh, Madho Singh, Bhag Singh, Chanan Singh and Hajara Singh are not on inimical terms with him. They were Panchas in Panchayat, and witness was also present in the Panchayat, where his father had stated, that Vidhya is living voluntarily, and he has denied suggestion about having denied to return Vidhya, rather they asked for 17 two days time to return her. He has stated that Gurdayal had gone on foot to fetch Vidhya, and while returning, they came in a jeep, along with many more persons. He stated that in the F.I.R. he did not mention about Gurdayal having been sent to fetch Vidhya. Witness Gurbachan Singh was said to be Bahnoi of witness' Bahnoi. Then he stated, that after Vidhya having come to his house he had gone to 40 NP after about an hour, and his father did not arrange for meat and alcohol. He stated, that distance between 40 NP and 41 NP is 4 Murabbas. 40 NP is situated towards the South, and the way is through his father's Dhani. He stated, that while going to his Dhani, he did not see the accused. Then, some of his cross examination was recorded in question answer form, wherein he stated, that the accused persons were sitting at a distance of 20 paces from his house, behind Kumpas. The northern portion of the Dhani is open, having no wall. However, in the eastern side there is 30 ft. long wall, having 3 ft. height. It being summer all family members were sleeping in the open Angan. He had admitted, that in between Angan and Kumpa there is engine room, which is 12ft. wide and 20ft. long. Police had come twice, first time at 8 in the morning, and second time it came at 2 in the afternoon. He stated, that when the police came to their Dhani, he did not show the cots, which were being used for sleeping by the family members, though cots were lying there, which were 4 to 5 in number. He has deposed that his father's house is adjacent to the Abadi of 41 NP. Kumpas were said to be 18 3, 2 being of height of 6ft. and 10ft wide, while one was said to be of 4 ft. height and 8ft. wide, and interse these Kumps there was gap of about one ft. He has admitted, that his brother Harnam Singh is physically disabled, and that they are only two brothers. He had also admitted, that Harnam being disabled, he was not married. He stated that Madho Singh's tractor had stopped at the house of Kehar Singh, which is at a distance of 1½ Bighas from the witness' house, towards the south. In between there is only one Chowk, and there is no other house. He stated that in 40 NP he has no enmity with anybody. Then, he has stated that while giving statement to police he did not give out, that in the tractor Kehar Singh, Madho Singh, Hajara Singh and Charan Singh were there. He has also admitted, that while giving F.I.R. he did not give out, that these persons, travelling in the tractor, had told him, that Gundas are camping at the house of Arjun Singh. He stated that on the day following Panchayat, Gurdayal had gone to fetch Vidhya, and had returned on the next day. He has also stated, that on his reaching the eastern and southern corner of the house, he had lighted the torch, the accused persons were camping behind the Kumpas, towards the North. He stated, that then he went to the house, and told about location of the accused persons, though he did not tell about the weapons with which they were armed, as he did not see the weapons. He entertained a suspicion, that the accused persons will cause some damage in the Dhani of his father. There is 19 only one way from 41 NP to his house, he did not go to the other inhabitants of 41 NP to inform, nor he informed any of his relatives, who live in 41 NP. He has also stated, that 40 NP and 41 NP, both the villages are inhabited by Bawaries. Then he stated, that while giving report he had told police, that he had seen the accused persons in the light of torch, and does not know as to why it is not mentioned in the report. He also stated that he disclosed the names of the accused persons to the police, but he did not state that he did not know the name of Baldev Singh, therefore, his name was not mentioned in the report. In the report he does not remember as to whether he has mentioned the name of accused Bachan s/o Gurdayal Singh, Makhan Singh s/o Bachan Singh, Harnam Singh s/o Santu Singh, and he stated, that he does not remember as to why the names of the accused was not mentioned in the first report. Then he stated that when they ran, Arjun Singh was ahead of all. Then, Gurdayal Singh was there, then other persons were there. He was 4-5 paces behind his father. Some accused followed them, while some were lying ambush Bansathia bushes in Killa No. 14, and therefrom first shot was fired at him, and by coming out from Bansathia bushes one shot was fired at his father, where his father had fallen down. He stated, that in the report he had mentioned that 2-3 more Bawaris of 41 NP were there. Bachan Singh had fired at him from a distance of about 20 paces, which did not hit him. He had also stated, that at the time when fire was made, his father was ahead 20 of him at a distance of 4-5 paces. Bansathia was at a distance of 10 paces, at the place, where his father was shot. At that time he was in Killa No. 14. Bansathia belonged to them, which were lying in two Killas, and was of the height of 4ft., and was lying on the boundary of Killa no. 14, and in between Killa no. 15 and 16, and they were lying in the area of 15 ft x 20 ft. He does not remember as to whether his Bahnoi Gurdayal was there at the time when his father was shot. Then, he reached near the dead body of his father. His father's face was downward. Then, he stated that till arrival of police, the dead body was not disturbed. Then, he stated that he does not remember as to whether there was any Potli. Then, he was shown photo Ex.D-2 and D-3, wherein Potli is visible at point X. Then, he stated, that this Potli contained blood smeared soil. When he was confronted with portion A to B of his police statement Ex.D-4, he deposed to have not given out that portion. Then, he was confronted with portion C to D in the police statement Ex.D-4, about his having seen the weapons in the hands of accused persons, and he stated that, he deposed that portion to police. In this portion it is mentioned, that he saw in the torch light, that accused Bachan Singh was armed with double barrel muzzle loading gun, and Charni and Harnam Singh were armed with Gandasi, and Ajmer Singh was armed with Sela. Then, he stated that Gurdayal Singh received injuries at the boundary of Killa no. 15 and 16, while his father was shot in Killa no. 16. It was there 21 itself that at a distance of 7-8 paces therefrom Gurdayal received injuries. Gurdayal Singh also bled. Injuries were caused on his father near Bansathia, before being fired. These injuries were also caused on the boundary of Killa No. 16, the witness received injuries on the boundary of Killa no. 14. He maintained, that he received injuries on the hand by Gandasi, which injuries were shown to doctor. Injuries were shown to police also. Then he was confronted with police statement Ex.D-4 portion E to F, about injuries received by him, to which he stated to be not remembering this part of the statement. He has admitted, that he did not make any attempt to save his father, and did not go near the dead body of the father, as he snatched the gun from Bachan Singh, and straight way ran away. He stated to have reached near Bachan Singh, immediately after his having fired, at that time Bachan Singh was re-loading the gun. He stated, that it is not mentioned, that Bachan Singh was re-loading the gun. He stated, that he was also having a Lathi, which fact is not mentioned in the police report. When Bachan Singh started to run away, he snatched his gun. He stated that he did not give gun in the police station. He has also stated, that gun snatched by him from Bachan Singh was handed over by him to the police at the house itself, before lodging the report. Then, he stated, that on next day, at about 2 in the noon, the gun was handed over to the police. The police had come at 8 in the morning. He does not remember as to whether the accused persons 22 were there at the police station, or not. Then, in the evening at 4 he went to the police station, at that time the accused persons were not there at the police station. He stated, that Bachan Singh accused is also known as Gurbachan Singh. Then, he has stated to be not aware, as to whether the accused persons Gurdayal Singh, Gurcharan Singh, Gurbachan Singh, Makhan Singh, Ajmer Singh, Harnam Singh were having injuries, rather he did not see those injuries. His father received only one gun shot injury at the hands of Bachan Singh from point blank range. His father did not hold the barrel of the gun. He has also stated that it started raining after death of his father. They did not bring his father to the home. It rained all over the night. He went to Mandi in the morning only. He had collected some 10-20 persons, to whom he narrated about the incident, which include Maka Singh, Panch Kehar Singh, Bhagwan Singh etc. He had narrated the incident to them at about 2 in the night itself. Then, on court question he stated, that Bachan Singh fired at his father while standing in Killa no. 16. Before that Bachan Singh was sitting behind Bansathia. He has also stated, that after seeing behind near Kumpa, he had seen Bachna only when he fired. This is the whole evidence of Dharam Singh.
Then, we come to the evidence of P.W. 2 Gurdayal Singh. He is son in law of the deceased Arjun Singh, and was living with Arjun Singh, along with his family. He has deposed that some 7 months ago when he 23 was in the Dhani at about 5-6 P.M., there was a dispute between Pyaru and Vidhya, and Pyaru told Vihdya to live with Arjun, then Vidhya went away with the son of Arjun, being Harnam. Then Panchayat was convened, by the villagers of village 41 NP, and in the Panchayat it was decided that Vidhya should be handed over to Pyaru. Then, at 6 P.M. Dharam Singh brought four persons in a jeep, and left them at Dhani, and went to 40 NP, and all the four persons and Arjun Singh told, that they would take away Vidhya in the night. Then, at 12-1 in the night, all the four persons, along with Arjun Singh, Vidhya and the witness, left the home for going to 1 MD, they started towards Gharsana, and after travelling about 2 Killas, five persons met them, being accused Gurdayal Singh, Bachan Singh, Gurcharan Singh, Harnam Singh, and Ajmer Singh. They asked as to where are they taking Vidhya, thereupon Arjun told to hand over Vidhya to them. Then, the four companions of the witness started chasing Gurdayal Singh etc., the witness and the persons were armed with Gandasi and Lathi, while Gurdayal Singh etc. were also armed with Gandasi and Lathi, and one of the companion of the witness was armed with gun, who fired, which hit Arjun Singh. Then, all the four persons ran away. Then, Panchayat people came in a tractor, and they returned back to Dhani. He has also deposed, that accused persons did not give any beating to anybody. At this stage the witness was declared hostile, and was cross-examined by the Public Prosecutor, wherein he deposed, that in 24 the Panchayat his father-in-law had accepted to handover Vidhya on the next day. He has denied the suggestion, about Vidhya having gone to her parental house, or he and his wife to have brought Vidhya from her parental house. He was then confronted with portion A to B of police statement Ex.P-10, which he denied to have stated. He also denied the suggestion to be deposing falsely, because he wants to have land from sons of Arjun Singh, being Dharam Singh and Harnam Singh. He has of course denied, that his injuries were examined medically. Then, he was cross examined on behalf of the accused persons, wherein he stated, that when they started with Vidhya, Vidhya was having a bundle of clothes, which was being carried by his father-in-law. He has stated, that in the incident they also chased accused persons, and inflicted injuries on them. They also inflicted injuries on Gurbachan Singh by chasing him, and caused injuries to all the five accused persons. There were many persons from villages 40NP and 41 NP. Then, he stated that he does not know about his own injuries, as it was night. He has then stated that the persons coming on the tractor included Kehar Singh, Fagga Ram and others, to whom also he narrated the incident. He has also stated that Pyaru is grand son of accused Gurdayal Singh, while Harnam is Behnoi of accused Gurbachan Singh, and Bachan Singh s/o Gurdayal Singh is his brother's son.
Thus, this witness purports to depose, of course, as hostile witness, that Vidhya did not go to 25 her parental house, and in the night, she was being taken to village 1-MD, and after travelling about 2 Killas, five accused persons met, and thereupon a scuffle took place, wherein both sides received injuries. He has of course, also stated that one of his companions was having gun, which was fired, which hit Arjun Singh. The five accused persons according to this witness are Bachan Singh, Gurdayal Singh, Gurcharan Singh, Harnam Singh and Ajmer Singh.
At this place we may refer to the statement of the accused Gurcharan Singh, recorded under Section 313 Cr.P.C., and a look at that shows, that therein he had stated, that Panchayat had sent this accused along with Bachan Singh, Gurdayal, Ajmer Singh and Harnam Singh, to call Arjun Singh. Thus, the prosecution and defence are ad-idem, at least to the effect, that five accused persons, being Gurbachan Singh @ Bachan Singh, Gurdayal Singh, Gurcharan Singh, Harnam Singh and Ajmer Singh were there in the incident. They claimed to have received injuries also, as shown in Ex.P-40 to Ex.P-44.
We need not discuss the other evidence of the material witnesses produced by the prosecution, as we are at one with their appreciation, as made by the learned trial court, to the effect, that they had not actually seen the accused persons causing specific injuries to any of the victims, as they were inside the house. However, we may add, that their evidence is 26 material, so far as it relates to the sequence of things, prior to incident, and immediately thereafter. We may invoke the theory of res-gastae in this regard.
In our view it can very safely be said that it is not in dispute, that Arjun Singh died in the incident, and died of the gun shot. Gun obviously belonged to the accused Bachan Singh, and was his licensed gun, which license has been recovered pursuant to the information, and at the instance of the accused Bachan singh being Ex.P-34 and Ex.P-35. Of course, in the statement under Section 313 Bachan Singh had stated, that the S.H.O. had taken the license from his house, but then, the fact of gun being his licensed gun, is not in dispute, and it has not come in the evidence of any of the witness, whether by way of cross examination, or otherwise, or in the statement under Section 313, that at the time of incident, apart from Bachan Singh's gun, there was any other gun.
In this background, if the statement of P.W.1 Dharam Singh is critically examined, as noticed above, that in some respects he has belied, in some respects he has made improvements, and in some respects he has made exaggeration also, but then, even if that part of the statement is excluded, and even if the material part of the statement of Gurdayal Singh, the hostile witness is believed, in favour of the defence, it does show, that in the night six persons, 27 including Gurdayal Singh and Arjun Singh were taking away Vidhya to village 1-MD, and after travelling 2 Killas, the five accused persons being Bachan Singh, Gurdayal Singh, Gurcharan Singh, Harnam Singh and Ajmer Singh met. According to this witness P.W.2 Gurdayal Singh, both the parties were armed with Gandasa and Lathi, while as appears from the evidence of P.W.1, that Bachan Singh was armed with gun, though this witness P.W.2 has attributed gun to one of his companion, which cannot be believed, also for the simple reason, that it has not been so suggested to any other witness, nor has it been so stated in any of their statement under Section 313, and at that place the incident occurred, resulting into death of Arjun Singh.
Obviously, we are not inclined to believe the story of Dharam Singh, about Vidhya being at her parental house, she having been brought in the evening to Arjun singh's house, then Dharam Singh coming to his village 40NP, then learning from occupants of tractor of Madho Singh, being Kehar Singh etc. about 9 persons being camping around the house of Arjun Singh, then his having gone there all alone, and spotted the accused persons in the torch light, and then to have narrated their presence to his father, and then he along with his father etc. having gone out, having been encircled, and incident having occurred.
Rather it is clear, that the deceased and 28 his companions, including Dharam Singh, were taking Vidhya to village 1-MD, and after travelling two killas, the five accused persons, being Bachan Singh, Gurdayal Singh, Gurcharan Singh, Harnam Singh and Ajmer Singh intercepted them, obviously because, according to both the sides the Panchayat had directed that Vidhya be handed over to Pyaru, and either in order to take away Vidhya from Arjun etc., or in order to prevent them from taking her to village 1-MD, incident was occurred. We are inclined to believe, that instead of nine, and even instead of six, only five persons, being Bachan Singh, Gurdayal Singh, Gurcharan Singh, Harnam Singh and Ajmer Singh, were there, who had received injuries, as are clear from Ex.P-40 to Ex.P-44. So far Dharam Singh's presence at the time of incident is concerned, that cannot be doubted, also for the simple reason, that he is also one of the injured witnesses, and those injuries are not alleged to have been received, otherwise at the time of incident.
Thus, in our view, from the evidence of Dharam Singh, Gurdayal Singh and other witnesses, believed by the learned trial court, it is clearly established, that the incident occurred at Killa no. 14 and 16, and was caused by five accused persons only, being Bachan Singh, Gurdayal Singh, Gurcharan Singh, Harnam Singh and Ajmer Singh, out of which Bachan Singh was armed with gun, whose fire hit Arjun Singh. Obviously, all these five persons were armed 29 with deadly weapons like gun, Gandasi etc., and their object clearly was to commit an unlawful act, or even purportedly committing lawful act did constitute unlawful assembly, as the act was intended to be done by unlawful means, and since at such dead hour of night they were armed with deadly weapons, including a double barrel muzzle loading gun, both barrels whereof were also loaded, it does clearly show, that their common object was not to say prayers, but to secure Vidhya, or to prevent Vidhya from being taken to village 1-MD, and for that purpose, even to cause death by the firearm, of any-one who comes in between, and in that process both the barrels were fired, one of which did not hit Dharam Singh, and the other hit Arjun Singh. Two empties have been recovered from the spot, and before gun could be re-loaded, it was snatched from Bachan Singh, by Dharam Singh, and after committing the incident, accused persons went away, looking other persons having come there.
There is, of course, some discrepancy in the evidence of Dharam Singh on the aspect as to when did he handover the gun to the police authorities, but then that is not of much consequence, because the gun is a licensed gun of Bachan Singh, which license has been recovered vide Ex.P-34 and Ex. P-35, and which license is undisputedly his one, and the factum of snatching of gun by Dharam Singh has not been successfully assailed in cross examination either. 30
We may then examine the aspect of non-
explanation of injuries on the accused persons. We have gone through the three judgments cited by the learned counsel for the appellant, and are of the view, that so far as the principles propounded in these judgments are concerned, that does not admit of any dispute, but then the fact does remain, that the effect of non explanation of injuries, depends upon facts and circumstances of each case, including nature of injuries. Here P.W.2 has clearly deposed, that both the parties were armed with Lathis and Gandasis, and both parties caused injuries to each other. Likewise Dharam Singh has also deposed, that he was armed with Lathi, and did wield Lathi. This, coupled with the fact, that of course injuries on the accused persons are good in number, but then, in Ex.P-40 all injuries are abrasions of 1 cm. X 1 cm., or 1.5 cm. X ½ cm., and so on. Then, in Ex.P-41 also there are two abrasions. Then, in Ex.P-42 again there are abrasions, and linear abrasions. Then, Ex.P-43 there are abrasions. Of course, in Ex.P-44 there is one fracture of 7th rib, and there are two wounds of blunt weapon, otherwise they are also all abrasions. It would suffice to say, that in the sequence of things, as is deposed by P.W. 2, where five persons on either side are armed with deadly weapons, like Gandasi and Lathi, and shower indiscriminate blows, these injuries clearly stand explained.
31
Now, the only aspect, that remains to be considered is, as to whether the alleged act of the accused persons is covered by the right of private defence, or not. In our view, a look at the cross examination of Dharam Singh shows, that nothing was suggested to him about the manner of happening of the accident, or its beginning, so as to even give indication about there being any right of private defence available to the accused persons much less to cause death of Arjun Singh. Be that as it may. This is only one aspect of the matter. Then, if we were to spell out the right of private defence, even de hors the evidence of P.W.1, then the only possible material in that regard is, the one stated by the five accused in their statement under Section 313 Cr.P.C., and at best, what has been deposed by P.W. 2 Gurdayal Singh, the hostile witness. According to one part of the story, being the one stated by the accused persons, the five accused persons had gone to the house of Arjun Singh to call him in the Panchayat, and Arjun Singh told them that he would show the effect of Panchayat, and then the accused persons were beaten. Significantly they deliberately omitted to disclose as to how Arjun Singh died, by specifically stating that they did not know as to how Arjun Singh died. They also do not disclose as to how they had gone to the house of Arjun Singh at such odd time, duly armed with deadly weapons like double barrel muzzle loading gun, Gandasa, Sela etc. Then what is still more significant to note is, that it has not come from any corner, or 32 material on record, that any incident of beating or killing occurred, at, or just outside the house of Arjun Singh. Obviously accused persons had no occasion to go armed at the house of Arjun Singh at such odd time, as it is not their case, that they were apprehending any untoward incident at the house of Arjun. Thus, the version given by the accused persons in their statement under Section 313 does not provide any right of private defence to them.
Then, considering the evidence of P.W.2 Gurdayal Singh also, taking the case as deposed by him, at the highest, the occurrence occurred because Arjun Singh etc. were taking Vidhya to village 1-MD. It is not the case, that Vidhya was with the accused persons, which was forcibly being taken away by Arjun Singh etc., and was being taken away to village Chak 1-MD, so as to provide, or make available, any right of private defence on person of Vidhya. Admittedly Vidhya had already contacted Nata with Harnam Singh, and according to prosecution, Panchayat had directed Vidhya to be handed over to Pyaru. If that were so, and if Arjun Singh was committing any act in disobedience of the order of Panchayat, in taking away Vidhya to village Chak 1-MD, it did not confer any right of private defence on accused persons, to commit these offences, either in order to forcibly acquire possession of Vidhya, or for the purpose of preventing prosecution persons from taking away Vidhya to village 1-MD.
33
Then, as the things appear on the face of it, it is nowhere and nobody's case, that at the place where the incident occurred, being Killa No. 14 and 16, the prosecution party had opened the assault, nor is it even suggested to any of them. Thus, simply because the accused persons are also shown to have received numerous injuries, even on that basis also, it cannot be said that the accused persons had any right of private defence to commit the offence as charged against them.
Thus, considering the case from any stand point, we do not find any error on the part of the learned trial court, so far as it convicted the five accused persons Bachan Singh, Gurdayal Singh, Gurcharan Singh, Harnam Singh and Ajmer Singh, for the various offence, as convicted. In our view, the involvement of Makhan Singh is not established beyond reasonable doubt. Out of five accused persons since the accused Harnam Singh and Gurdayal Singh have already died, their appeal is already abated.
Resultantly, Appeal No. 29 is partly allowed. The accused Makhan Singh s/o Gurbachan Singh is acquitted of all the charges. He is on bail, he need not surrender, and his bail bonds stand cancelled. However, the appeal No. 29 so far as it relates to accused Bachan Singh and Gurcharan Singh, so also 34 Appeal No. 46, so far as it relates to appellant Ajmer Singh, is devoid of any merit, and the same is dismissed. The learned trial court is directed to take necessary steps to have these accused persons arrested, and commit them to custody for undergoing remaining part of the sentence.
( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /Sushil/