Rajasthan High Court - Jodhpur
Kulvinder Singh @ Kala Singh vs State on 5 May, 2018
Author: Sangeet Lodha
Bench: Sangeet Lodha, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 656 / 2012
Kulvindra Singh @ Kala Singh s/o Mejar Singh, b/c Jatsikh, r/o
Ramsara, Police Station Ramamandi, District Bhatinda (Punjab) at
present 11 LKS Gurusar Modia, Tehsil Suratgarh, District Sri
Ganganagar.
----Appellant
Versus
State of Rajasthan.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. B.S.Rathore with Mr.Yuvraj Singh
For Respondent(s) : Mr.Vishnu Kachhawaha, Public Prosecutor.
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR Judgment Per Hon'ble Mr.Sangeet Lodha,J.
5th May, 2018
1. This appeal is directed against the judgment dated 17.5.12 of Additional Sessions Judge (Fast Track), Anoopgarh in Session Case No.39/09, whereby the appellant Kulvindra Singh @ Kala Singh has been convicted and sentenced as under :
Section 449 I.P.C.
Rigorous imprisonment for ten years and a fine of Rs.500/-; in default of payment of fine to further undergo 15 days simple imprisonment.
Section 302 I.P.C.
(2 of 25) [CRLA-656/2012] Imprisonment for life and a fine of Rs.500/-; in default of payment of fine to further undergo 15 days simple imprisonment. Section 3/25 (1-B)(a) of Arms Act One year's simple imprisonment and a fine of Rs.500/-; in default of payment of fine to further undergo 15 days simple imprisonment.
2. The prosecution story as unfolded during the trial may be summarized thus:
On 20.4.09 in the afternoon, informant Gurmel Singh, his father Dalvir Singh and younger brother were at their home. Around 3 P.M., a white car bearing number PB-33-2086 came in the street and stopped there. Dalvir Singh went near the car. In a short while, scream was heard. Gurmel Singh and Banta Singh, the sons of Dalvir Singh, rushed to the spot. Kala Singh s/o Major Singh, who resides in Punjab, was quarreling with Dalvir Singh and both were scuffling. Kala Singh was accompanied by Purn Singh, Jassa and Lakha. Purn Singh stopped Kala Singh and members of complainant party from quarreling. Gurmel Singh, Dalvir Singh and Banta Singh returned to their home. Around one hour later, Kala Singh, Purn Singh, Jassa Singh and Lakha Singh all came in a jeep, which was parked near the khala (Watercourse). They all indulged in firing entered the informant's house. At that time, informant Gurmel Singh & his wife, Banta Singh & his wife, Dalvir Singh and his wife were sitting under the neem tree in verandah of the house. Kala Singh fired from pistol at Banta Singh with an intention to kill him. Banta Singh suffered gun shot on his chest and fell down. Kala Singh and others fled (3 of 25) [CRLA-656/2012] away. When Banta Singh was taken care of, he was found dead. Kala Singh and others fired at Banta Singh after entering into home.
3. Narrating the incident as aforesaid, PW4-Gurmel Singh submitted a written report (Ex.P/1) to the SHO, Police Station, Suratgarh Sadar. On the basis of the written report (Ex.P/1), the police registered an FIR (Ex.P/14) for offences under Sections 449, 302/34 IPC and the investigation commenced.
4. After inquest proceedings, the body of the deceased Banta Singh was subjected to autopsy by PW17-Dr. Vijay Bhadu, the Medical Officer, Government Community Health Centre, Suratgarh. During the investigation, necessary memos were prepared. Clothes of the deceased Banta Singh, Car PF-33-2086 and a jeep RJ-13-C-0211 were seized. Accused persons were arrested. At the instance of accused Kulvindra Singh @ Kala Singh, vide recovery memo Ex.P/21, 32 Bore pistol was recovered. That apart, bullet was recovered from the body of the deceased. Country made pistol and the bullet recovered were sent to Forensic Science Laboratory for examination and the report (Ex.P/11) was obtained.
5. After completion of the investigation, the police filed charge sheet against the accused Kulvindra Singh @ Kala Singh for offences under Sections 302, 449 IPC & 3/25 Arms Act before the Additional Chief Judicial Magistrate, Suratgarh. The matter was committed to the court of Additional Sessions Judge (Fast Track), Anoopgarh. On an application being filed on behalf of the complainant Gurmel Singh under Section 193 Cr.P.C., the (4 of 25) [CRLA-656/2012] cognizance was taken by the learned trial Judge against the accused Purn Singh, Jassa Singh and Lakha Singh as well for the offences under Section 449, 302/34 IPC vide order dated 4.8.09. The learned Trial Judge framed the charges against Jassa Singh, Purn Singh and Lakha Singh for offences under Sections 449, 302/34 IPC and against the accused Kulvindra Singh @ Kala Singh for offence under Sections 449, 302 IPC & 3/25 Arms Act. The accused persons pleaded not guilty and claimed trial.
6. During the trial, the prosecution got examined as many as 17 witnesses (PW 1 to PW 17) and documentary evidence was exhibited as Ex.P/1 to Ex.P/30 including Ex.P9/A, P/23A, P/24A, P/25A, P/27A and P/30A. The statements of the accused persons were recorded u/s. 313 Cr.P.C., wherein they denied their involvement in the commission of the crime as alleged and stated that they have been falsely implicated in the case. In defence, no witness was examined, however, the statement of the witnesses Bachno Bai, Jeeto Bai, Durga Bai, Dalvir Singh and Gurmel Singh recorded by the police under Section 161 Cr.P.C. were exhibited in evidence as Ex.D/1 to D/5 respectively.
7. The learned Trial Judge after due consideration of the evidence on record and the submissions made by the parties, convicted and sentenced the appellant accused as indicated above and acquitted the co-accused Jassa Singh, Purn Singh and Lakha Singh of the charges for the offences under Sections 449, 302/34 IPC. Hence, this appeal.
8. Heard the learned counsel for the appellant and learned Public Prosecutor.
(5 of 25) [CRLA-656/2012]
9. Learned counsel appearing for the appellant contended that there was no cogent evidence brought on record by the prosecution to establish the guilt of the appellant. It is submitted that no identification parade was conducted and even before the court, the accused was not specifically identified by the witnesses. Drawing the attention of this court to the site plan (Ex.P/6 & P/9), learned counsel submitted that the concocted and false site plan (Ex.P/9) was prepared after a lapse of more than two months from the date of occurrence just to show a different situation at the site keeping in view the nature of injury suffered by the gun shot as reflected in the post mortem report (Ex.P/24). It is submitted that in the site plan (Ex.P/6) initially prepared, it is shown that the complainant party were sitting under the neem tree at the place marked 'B' and the accused appellant while entering the main gate fired at Banta Singh from the place marked 'C' whereas in the site plan Ex.P/9, the position of the deceased Banta Singh has been shown at the raised platform marked as 'B' and the place from where the fire was made has been shown just at the entrance marked as 'A'. Learned counsel would submit that as per the FSL Report (Ex.P/11), the bullet recovered from the body of the deceased was not fired from the country made pistol recovered at the instance of the accused rather, same was fired from .32'' rifle firearm. Learned counsel would submit that the concocted and false site plan (Ex.P/9) was prepared just to cover up the discrepancy bound to come on record in occular evidence and the medical/ballistic evidence and further with an intention to establish the connectivity of the shot (6 of 25) [CRLA-656/2012] alleged to have been fired by country made pistol recovered at the instance of appellant. Learned counsel submitted that PW 17-Dr. Vijay Bhadu has categorically deposed that the injury caused reveal that the accused was at height and the fire was made from left to right and from down to upward, which further fortifies the fact that the subsequent site plan was prepared keeping in view the medical evidence came on record by way of post mortem report (Ex.P/24). Learned counsel submitted that admittedly bullet was found embedded in the body of the deceased whereas had the fire being made from a distance of 18-19 ft., the bullet could not have remained in the body. Learned counsel urged that absence of blood at the place of occurrence also indicates that the incident had occurred somewhere else and not at the place shown in the site plans (Ex.P/6 & P/9). Learned counsel submitted that a perusal of the judgment under appeal reflects that the trial Judge has failed to examine the evidence on record in its entirety and objectivity inasmuch as, while recording the finding of guilt against the appellant, the Trial Judge has relied upon site plan- Ex.P/6, however, the description of the places noticed in the judgment relates to site plan-Ex.P/9. Learned counsel submitted that recovery of the pistol has been made from the open field and the witnesses of recovery PW14-Shivlal and PW15-Manphool Ram have turned hostile and thus, the recovery of the weapon at the instance of the appellant becomes doubtful and cannot be relied upon. In this regard learned counsel relied upon the decisions of the Hon'ble Supreme Court in the matter of 'State of M.P. Vs. Ghudan', (2003)12 SCC 485, 'Makhan Singh vs. State of Punjab', (7 of 25) [CRLA-656/2012] (1988) Supp SCC 526. Learned counsel submitted that the deposition of the eye witnesses suffers from serious contradictions on material points. That apart, there exists material serious contradiction between the oral evidence and medical evidence as also the FSL report and therefore, the testimony of eye witnesses cannot be relied upon and the benefit of doubt deserves to be extended to the appellant. In support of the contention, learned counsel has relied upon a decision of the Supreme Court in the matter of 'Brijpal Singh vs. State of M.P.', 2004 SCC (Cri.) 90 and a decision of this court in the matter of 'Dan Singh & Anr. vs. State of Rajasthan', 2009(1) Cr.L.R.(Raj.) 484.
10. On the other hand, learned Public Prosecutor submitted that the guilt of the appellant stands established beyond reasonable doubt on the basis of the testimony of eye witnesses. The eye witnesses PW1-Bachno Bai, PW2-Jeeto Bai, PW3-Durga Bai, PW4- Gurmel Singh and PW5-Dalvir Singh have specifically named Kala Singh as the person, who fired from pistol at Banta Singh. There was a single gunshot injury found on the person of the deceased, which is attributed to Kala Singh. The pistol was recovered at the instance of appellant not from the open place but from the agriculture field of appellant's relative, Nakstra Singh. The medical evidence cannot be said to be contrary to ocular evidence. PW17- Dr. Vijay Bhadu, on the suggestion being made by the prosecution has given answer accordingly. Learned Public Prosecutor would submit that on account of some contradiction emerging on the basis of the FSL Report, the testimony of eye witnesses cannot be discarded. The cartridges for country made pistol are not (8 of 25) [CRLA-656/2012] manufactured in India and the bullets made for other firearms are used therein and therefore, nothing turns on the question that in the FSL Report it is opined that the bullet has not been fired from country made pistol rather it is fired from .32" rifle firearm. Learned Public Prosecutor submitted that the injury to be caused depends upon velocity of the bullet and there being no exact point, the question of blood oozing out from the body and falling at the place of occurrence does not arise. Learned Public Prosecutor would submit that the direction of the bullet cannot be determined unless the bullet exits the body. It is submitted that the pistol was recovered at the instance of appellant, it was in operative condition and the smell of gunpowder was coming from its barrel. The FSL Report cannot be treated to be conclusive so as to ignore the testimony of eye witnesses and other evidence on record.
11. We have considered the rival submissions and scanned the evidence on record carefully.
12. The autopsy of the dead body of Banta Singh was conducted by PW17-Dr. Vijay Bhadu. As per the Post Mortem Report (Ex.P/24), the description of the bullet injury found on the person of the deceased reads as under :
"There was an oval shaped side to side longer wound of entry located in the II intercostal space, 2" above & to rt. side of left nipple, the size of the wound was 1/3" x 1/4", its edges were inverted & there was a collar of abrasion contusion. There was a tiny laceration (1/8" x linear) on the rt. upper margin of the oval wound indicating left to rt. And (&) below- upwards direction of the projectile at the moment of impact; also there was indication that the projectile struck the body at a low velocity, which was further supported by the fact that the bullet was found struck below skin in the rt. side of the (9 of 25) [CRLA-656/2012] back of chest wall where it cause laceration of the skin 1½"
away from T2, in the back wall, of the size of 1/2" x 1/3". On dissection, there were found holes in front wall of left & back wall of rt. Atrial, a gutter on the front & rt. side of the body of T2 & a huge laceration in rt. Lung, leading to the site of lodging of the projectile."
The cause of death was opined to be the direct injury to the heart caused by the bullet recovered at the time of post mortem from the dead body.
The nature of the injury and the cause of the death has been further confirmed by PW17-Dr. Vijay Bhadu in his deposition before the court.
In this view of the matter, the death of Banta Singh was concededly homicidal in nature.
13. The prosecution case is founded on testimony of eye witnesses PW1-Bachno Bai, PW2-Jeeto Bai, PW3-Durga Bai, PW4- Gurmel Singh and PW5-Dalvir Singh and other corroborative evidence.
14. In the first instance, we consider it appropriate to examine the testimony of eye witnesses examined by the prosecution.
15. PW1-Bachno Bai, the mother of the deceased Banta Singh, deposed that on 20.4.09 in the afternoon, she alongwith Dalvir Singh, Jeeto Bai and Durga Bai were drinking tea under the neem tree inside the house. Around 3 P.M. grand sons of Karnail Singh came there in a car which was parked in front of their room. Dalvir Singh went out and asked grand sons of Karnail Singh as to why the car has been parked in front of their room. Kala Singh, (10 of 25) [CRLA-656/2012] Jassa singh, Lakha Singh and Purn Singh belaboured her husband (Dalvir Singh). On her husband shouting, her sons Banta and Gurmel intervened and rescued her husband and came back home. Around 4 P.M. all the four persons Lakha, Kala, Jassa and Purn again came to their house, Lakha, Jassa and Purn told Kala Singh to fire and Kala Singh fired at Banta Singh. The bullet was shot on the chest of Banta Singh. Banta Singh died. All the four persons fled away in a jeep.
In cross examination, Bachno Bai deposed that in the house, there is one room and two chabutara. Around 4 P.M. they were sitting on the floor of the house, then said, her two sons and husband were sitting on the cot under the neem tree and they (ladies) were sitting on the floor, facing towards the front gate. She deposed that all were sitting near the wall and Banta was sitting in forefront. She heard the sound of two fires and third shot was fired at Banta inside the house. The shot on Banta was fired from a distance of about 15 ft. whereas, the neem tree was 15-20 ft. away from the gate and the chowki existed outside the room which was equal to the room constructed by using three beams. The police did not conduct the identification parade inasmuch as, she had already recognized the accused persons. On fire shot, Raja and Deshraj came to their house and they placed her son Banta on the cot. She further deposed that she had never seen Kala Singh before the incident.
16. P.W.2-Jeeto Bai deposed that she, Dalvir Singh, Bachno Bai, Gurmel Singh and Durga Bai were sitting on the floor of the house. Indicating towards the accused, she deposed that they (11 of 25) [CRLA-656/2012] parked the car in front of their house and when her father in law Dalvir Singh went out, he was belaboured by them. Having heard the noise, her husband and brother in law went out. After an hour, her father in law, husband and brother in law returned back home. Then around 4 P.M. the accused persons present in the court came back and challenged them. Kala Singh fired a shot on Banta Singh, who died. The accused persons fled away in a jeep.
In cross examination, she stated that her father in law, mother in law, husband, brother in law and sister in law, all were sitting on chowki (chabutara), just outside the room. She deposed that next to her, his brother in law (Banta Singh) was sitting. Her mother in law (P.W.1-Bachno Bai), father in law (P.W.5-Dalvir Singh) and sister in law (P.W.3-Durga Bai) were sitting behind her. Her face was towards the gate and her husband was also sitting facing the gate. She deposed that she had never seen the accused persons before inasmuch as, their dhani is at distance. She heard from villagers that the person who fired shot is Kala Singh and they are grand sons of Karnail Singh. After firing of the shot, Raja Singh and Deshraj came on spot and placed Banta over charpai. The person who fired the shot was standing 10 -12 ft. away, just opposite Banta Singh.
17. P.W. 3-Durga Bai deposed that on 20.4.09 around 3 P.M. she alongwith her husband Banta Singh, father in law Dalvir Singh, mother in law Bachno Bai, brother in law Gurmel and sister in law Jeeto Bai were sitting under a tree inside the house. Hearing the noise in the street, her father in law went outside, he had altercations with Kala Singh, Lakha Singh, Jassa Singh. After that (12 of 25) [CRLA-656/2012] her husband and brother in law went out and brought her father in law inside the house. After an hour, Kala Singh, Jassa Singh, Purn Singh and one more person came, Kala Singh was armed with pistol. Jassa Singh, Purn Singh etc. asked Kala Singh to fire, thereupon, Kala Singh fired a shot on the chest of Banta Singh, he fell down. The accused persons fled away in a jeep.
In cross examination, she deposed that around 4 P.M., while sitting under a neem tree, they were having a tea. Her husband, brother in law and father in law were sitting on charpai and they (ladies) were sitting below on the floor. Near the gate, her father in law was sitting and next to him was her brother in law and then her husband. The person who shot fired was standing at the distance of 20-22 ft. from her husband. The person who fired the shot and the person who suffered the shot, both were standing. The shot was fired while standing near the room. She deposed that under the neem tree, the place where they were sitting was at the upper level as they were sitting on chowki and her husband (Banta Singh) was also standing on the chowki. She further deposed that she had never seen the accused persons before the firing. Before the occurrence, she had neither seen the faces of the accused persons nor she was knowing their names. She had heard that Kala Singh is residing in Punjab and this fact she had disclosed to the police.
18. P.W.4-Gurmel Singh deposed that on fateful day at 3 P.M. he, his younger brother Banta Singh, Banta Singh's wife Durga Bai, his wife Jeeto Bai, mother Bachno Bai and father Dalvir Singh were sitting under the neem tree in their house. One white colour (13 of 25) [CRLA-656/2012] car came in the street, his father went out and asked what has happened to the car. Kala Singh, Jassa Singh, Lakha Singh and Purn Singh who were in the car picked up quarrel with his father. Hearing the noise, he and Banta Singh went out and inquired as to what has happened. Then they responded saying that why the old man (Dalvir Singh) has indicated their car as 'kabad'. They brought their father back and they (accused persons) went away while pushing their car. Around 4 P.M. all the four, Kala Singh, Purn Singh, Jassa Singh and Lakha Singh came back in a jeep, parked it near the khala at the distance of 3 bighas from their house. They entered their house and started rebuking, they all stand up. Kala Singh with an intention to kill, fired a shot at Banta Singh. The persons accompanying instigated Kala Singh to shot fire on the persons sitting. The shot was fired on the chest of Banta Singh. The villagers assembled and they placed Banta Singh over charpai. Immediately after the shot being fired, they fled away, they were chased but they went away in a jeep.
In cross examination, he deposed that they were sitting below on the floor under the neem tree, then said they were sitting under the neem tree on the chowki and further that chowki was at the distance of 3-4 ft. from the neem tree. They said they were sitting on charpai placed on chowki.He deposed that the wall in the north of the chowki is 5 ft. in height and the charpai was 10-12 ft. away from the wall. When the shot was fired, Banta Singh was not standing rather, he was sitting on the charpai. At the same time, he deposed that the place from where Kala Singh fired the shot was at the distance of 15-20 ft.. At the time Kala (14 of 25) [CRLA-656/2012] Singh fired, his face was towards the north and his brother's face was in south-east direction. No blood was present on chabutara. The suggestion of the defence that while he was sitting on the charpai he did not see the incident occurred in his north side, was accepted by the witness as correct. He deposed that after the murder when the accused persons ran away towards the jeep, we chased them then saw them fleeing away in a jeep. He further deposed that he had not seen where the jeep was parked but after the occurrence when the accused were fleeing away, on being chased, he saw the jeep boarded by them.
19. P.W.5-Dalvir Singh deposed that while narrating the incident occurred on the car being parked in the street, he deposed that on his indicating the car of the accused persons as 'kabad', Kala Singh started beating him by a baint (cane) and he also inflicted 2-3 baint blows on Kala Singh. Then Banta Singh and Gurmel Singh came and took away him, inside the house. Around 4 P.M. when he, Banta Singh, Gurmel Singh, Bachno Bai, Jeeto Bai, Durga Bai were having the tea while sitting under a neem tree, a jeep came which was parked near the khala and Jassa Singh, Lakha Singh, Kala Singh came to their house on foot. Then Jassa Singh, Purn Singh and Lakha Singh told Kala Singh to fire. Kala Singh fired a shot which hit the chest of Banta Singh. All the four persons fled away in a jeep parked near the khala. Banta Singh died, who was placed on charpai by the villagers.
In cross examination, he stated that he and his two sons were sitting on the charpai placed on chowki and his wife and sons' wives were sitting below in the left of charpai. The size of (15 of 25) [CRLA-656/2012] Chabutara was disclosed by him to be 10 ft. x 16 ft. The charpai was placed adjoining to west wall of the house. Before the accused entered the house, they heard sound of one shot, which hit the electricity pole. The shot was fired at Banta from the distance of 14-15 ft. The place from where the shot was fired, was half ft. below to the place where shot was aimed. Banta was in sitting position when shot was fired. As per his deposition, he, Banta Singh and Gurmel Singh, all were sitting. There was no blood on the place of occurrence.
20. Indisputably, as per the deposition of eye witnesses, P.W.1- Bachno Bai, P.W.2-Jeeto Bai, P.W.3-Durga Bai, P.W.4-Gurmel Singh and P.W.5-Dalvir Singh, the incident of firing which resulted in death of Banta Singh was preceded by an incident of quarreling and scuffling between Dalvir Singh and the accused persons. Though, all the eye witnesses have deposed that Kala Singh fired a shot on the chest of Banta Singh by a pistol inside the house, there exists discrepancies and contradictions in their deposition regarding the position of the deceased Banta Singh and the assailant Kala Singh at the time when shot was fired.
21. It is noticed that in the written report (Ex.P/1) submitted by the P.W.4-Gurmel Singh to the SHO, Police Station, Suratgarh Sadar, it is stated that at the relevant time, the informant Gurmel Singh, his wife, Banta Singh and his wife, Dalvir Singh and his wife were sitting under the neem tree in verandah of the house, which has been reiterated by the witnesses P.W.2-Jeeto Bai, P.W.3- Durga Bai, P.W.5-Dalvir Singh and P.W.4-Gurmel Singh, in their (16 of 25) [CRLA-656/2012] statements recorded by the police under Section 161 Cr.P.C., Ex.D/2 to D/5 respectively.
22. It is pertinent to note that as per the site plan (Ex.P/6), the neem tree inside the house of the complainant party is located at the place marked 'A' which is below the chabutara marked as 'F'. Further, the position of sitting of the members of complainant party including the eye witnesses P.W.1 to P.W.5 is shown in the site plan at the place marked 'B' under the neem tree. As per the site plan, Kala Singh fired the shot on Banta Singh from the placed marked 'C' which is shown to be within the precinct of the house of complainant party. But then, the measurement of the distance between the place marked as 'B' where the members of the complainant party including the deceased Banta Singh, were sitting and the place marked as 'C' from where the shot was fired is not shown in the site plan (Ex.P/6).
23. At this stage, it would be appropriate to consider the deposition of the eye witnesses regarding their position in the house at the time when the incident of firing occurred.
24. P.W.1-Bachno Bai in her deposition before the court stated that in their house, there is one room and two chabutaras whereas, in the site plans (Ex.P/6 & Ex.P/9) only one chabutara is shown inside the house. In the first instance, she deposed that they were sitting on the floor of the house, then said, her two sons and husband were sitting on the charpai under the neem tree (not on chabutara) and they (ladies) were sitting on the floor facing towards the front gate.
(17 of 25) [CRLA-656/2012]
25. P.W.2-Jeeto Bai also in the first instance deposed that they were sitting on the floor of the house, however, in cross examination, changing the stand she deposed that she, her father in law, mother in law, husband, brother in law and sister in law, all were sitting on chowki (chabutara) just outside the house (room).
26. P.W.3-Durga Bai, who also deposed in the first instance that they were sitting under the neem tree inside the house but, in the cross examination, stated that her husband, brother in law and father in law were sitting on the charpai and they (ladies) were sitting below on the floor. Then, improving her version as aforesaid, she further deposed that the place under the neem tree where they were sitting was at the upper level as they were sitting on chowki and her husband (Banta Singh) was standing on the chowki.
27. P.W.4-Gurmel Singh in his examination in chief while maintaining that they were sitting under the neem tree in their house, further said that when the accused persons entered their house and started rebuking, they all stand up. In cross examination, he again reiterated that they were sitting under the neem tree on the floor, then said, were sitting under the neem tree on chowki and further that chowki was at the distance of 3-4 ft. from the neem tree.
28. P.W.5-Dalvir Singh in his examination in chief deposed that they were sitting under the neem tree, however, in the cross examination, he stated that while he and his two sons were sitting (18 of 25) [CRLA-656/2012] on charpai placed on chowki, his wife and sons' wives were sitting on the left of charpai.
29. Thus, the discussion above reveals that the eye witnesses have taken changing stand regarding their exact position inside the house at the time of incident of firing and their statements suffer from apparent discrepancies and contradictions.
30. It is a matter of record that the incident occurred on 20.4.09 at 4 P.M. The written report (Ex.P/1) was submitted by P.W.4- Gurmel Singh to the SHO, Police Station, Suratgarh Sadar on 20.4.09 at 7.30 P.M. The statement of P.W.4-Gurmel Singh under Section 161 Cr.P.C. was recorded by the police on 20.4.09 and P.W.5-Dalvir Singh on 21.4.09 whereas, the statements of P.W.1- Bachno Bai, P.W.2-Jeeto Bai and P.W.3-Durga Bai were recorded on 22.4.09.
31. The autopsy of the dead body of deceased Banta Singh was conducted by P.W.17-Dr. Vijay Bhadu vide Ex.P/24 on 21.4.09, wherein after examination of the oval wound found on the body of the deceased, the doctor opined that the projectile at the moment of impact travelled from below to upward direction.
32. It is a matter of record that the site plan (Ex.P/6) was prepared by the police immediately after the incident on 20.4.09 and the autopsy of body of the deceased was conducted on 21.4.09 wherein the doctor expressed the opinion as indicated in the preceding paras. On the post mortem report (Ex.P/24) being received, after a lapse of about 2 ½ months the Investigating Officer prepared yet another site plan (Ex.P/9) wherein the (19 of 25) [CRLA-656/2012] position of the deceased as also the assailant, the appellant herein, has been shown differently. The position of the deceased where he suffered the shot has been shown at the place marked 'A' alleged to be chabutara as against the place shown in Ex.P/6 marked as 'B' below the neem tree on the floor which is as per the deposition of the eye witnesses is 3-4 ft. away from chabutara. Similarly, the position of the person who fired the shot is shown in the site plan (Ex.P/6) inside the main gate whereas, in the site plan (Ex.P/9), his position is shown just at the entrance. There is no plausible explanation coming forward justifying the police preparing yet another site plan (Ex.P/9) after 2 ½ months. Thus, on the facts and in the circumstances of the case, we find substance in the contention raised on behalf of the appellant that the prosecution has not come out with a true story and the site plan (Ex.P/9) was prepared visualizing the possibility of apparent discrepancies in occular and medical/ballistic evidence bound to come on record and accordingly, the eye witnesses have improved their version so as to make it in consonance with the medical/ballistic evidence.
33. This takes us to consider whether the prosecution has been successful in proving beyond reasonable doubt that Kala Singh, the appellant herein, was the person who entered the house of the complainant party and fired a shot on the chest of Banta Singh?
34. As per the case set out by the prosecution, Lakha, Jassa and Purn told Kala Singh to fire and Kala Singh fired the shot at Banta Singh on his chest and then all four fled away. As per the written report (Ex.P/1), at the time of occurrence of the incident P.W.1- (20 of 25) [CRLA-656/2012] Smt. Bachno Bai, P.W.2-Smt. Jeeto Bai, P.W.3-Smt. Durga Bai, P.W.4-Gurmel Singh, P.W.5-Dalvir Singh and the deceased Banta Singh all were sitting under the neem tree within the precincts of their house. This factual position is reiterated by P.W.2-Smt. Jeeto Bai, P.W.3-Smt. Durga Bai, P.W.4-Gurmel Singh and P.W.5-Dalvir Singh in their statements recorded by the police under Section 161 Cr.P.C. Ex.D/2 to D/5 respectively.
35. P.W.1-Smt. Bachno Bai in her deposition before the court in examination-in-chief reiterated that they were having tea while sitting under the neem tree. However, in cross examination changing the stand, she deposed that her two sons and the husband were sitting on the cot under the neem tree and they (ladies) were sitting on the floor facing towards the main gate and Banta was sitting in forefront. P.W.2-Smt. Jeeto Bai deposed that when the accused persons came at 4 P.M., all of them were sitting on chabutara just outside the room. P.W.3-Smt. Durga Bai in her examination-in-chief, deposed that they were sitting under the tree. In cross examination, she deposed that her husband (Banta Singh), brother in law (P.W.4-Gurmel Singh) and father in law (P.W.5-Dalvir Singh) were sitting on charpai facing towards the east, then said that under the neem tree they were sitting at the upper level on the chowki and her husband (Banta Singh) was standing on the chowki. P.W.4-Gurmel Singh in his examination- in-chief deposed that they were sitting under the neem tree in their house, however, in the cross examination, he stated that they were sitting below on floor under the neem tree, then said, they were sitting under the neem tree on the chowki and further (21 of 25) [CRLA-656/2012] that the chowki was at the distance of 3-4 ft. from the neem tree. P.W.5-Dalvir Singh deposed that they were having tea while sitting under a neem tree but in cross examination, he stated that he and his two sons were sitting on charpai placed on chowki and his wife and sons' wives were sitting below in the left of charpai.
36. Further, as per P.W.1-Bachno Bai, the room is constructed over three beams and the chabutara outside the room is equal to the size of the room, which on the basis of the description given by the witness with the consent of the parties is noticed by the court to be approximately 30x25 sq. ft. As per the site plans (Ex.P/6 & P/9), the outer wall of the room merges in the boundary wall wherein at some distance there is entrance of the house marked as 'A' in Ex.P/9, which is east facing. According to P.W.1- Bachno Bai, they all were sitting near the wall and Banta was sitting in the forefront and thus, they all were sitting facing the western wall of the room. But then, P.W.4-Gurmel Singh has deposed that charpai was 10-12 ft. away from the wall. Further, as per P.W.5-Dalvir Singh, charpai was placed adjoining to the west wall of the house (room). The matter does not end at this. As noticed above, as per P.W.1-Smt. Bachno Bai, all were sitting near the wall and Banta was sitting in forefront whereas, as per P.W.2-Smt. Jeeto Bai, all were sitting on the chowki, his brother in law (Banta Singh) was sitting next to her and her mother in law, father in law and sister in law were sitting behind her. She deposed that she and her husband (P.W.4-Gurmel Singh) were sitting facing the gate and thus, obviously, if the charpai was placed close to the wall and other persons were sitting behind her, (22 of 25) [CRLA-656/2012] then all the persons must not be sitting facing the front gate. Contrary to the deposition of P.W.1-Smt. Bachno Bai that Banta Singh was sitting in forefront, P.W.2-Smt. Jeeto Bai has deposed that next to her, her brother in law (deceased Banta Singh) was sitting whereas, as per P.W.3-Smt. Durga Bai, near the gate, her father in law was sitting and next to him was her brother in law and then her husband (Banta Singh) and further that her mother in law, father in law and sister in law were sitting behind her. The stand of P.W.5-Dalvir Singh in this regard is altogether different, he deposed that he, Banta Singh and Gurmel Singh were sitting on the charpai whereas his wife and his sons' wives were sitting below in the left of charpai.
37. Further, as per P.W.1-Smt. Bachno Bai, at the time when Kala Singh shot fire at Banta Singh, he was sitting on the cot under the neem tree, as per P.W.2-Jeeto Bai, everybody including Banta Singh were sitting on chowki, as per P.W.3-Durga Bai, while reiterating that her father in law, brother in law and her husband were sitting on the charpai further deposed that the person who fired the shot and the person who suffered the shot both were standing. As per P.W.4-Gurmel Singh, when the accused entered their house and started rebuking, they all stand up. P.W.5-Dalvir Singh has categorically deposed that he, Banta Singh and Gurmel Singh all were sitting and specifically further deposed that Banta was in sitting position when the shot was fired.
38. As per site plan (Ex.P/6), the shot was fired by Kala Singh from the place marked as 'C' which is the place inside the house whereas as per the site plan (Ex.P/9), the shot was fired from the (23 of 25) [CRLA-656/2012] place marked as 'A' which is shown to be the entrance gate. If the shot was fired from the entrance gate and the eye witnesses and the deceased were sitting on chabutara outside the room having the width of approximately 25 ft., obviously, the distance from the place where the shot was fired and the place where Banta was sitting/standing was more than 25 ft. However, as per P.W.1-Smt. Bachno Bai, shot on Banta was fired from a distance of 15 ft., as per P.W.2-Smt. Jeeto Bai, the person who fired the shot was standing 10-15 ft. away just opposite to Banta Singh, as per P.W.3-Durga Bai, the person who fired shot was standing 20-22 ft. away from her husband (Banta Singh), as per P.W.4-Gurmel Singh, Kala Singh fired the shot from the distance of 15-20 ft. and as per P.W.5-Dalvir Singh, shot was fired at Banta from a distance of 14-15 ft.
39. There is yet another aspect of the matter. If the shot was fired from the entrance gate and the eye witnesses were sitting close to the western wall of the room, view whereof from the entrance gate was obstructed by wall of the room approximately 25 ft. wide, then the testimony of the said eye witnesses about they having seen the person firing the shot who immediately fled away, becomes doubtful.
40. That apart, P.W.1-Bachno Bai has deposed that all the four persons were not known to her, she knew them a little. P.W.2- Jeeto Bai deposed that she had heard from the villagers that the name of person who shot fired is Kala Singh. P.W.3-Durga Bai deposed that she had never seen the accused persons before firing the shot nor their names were known to her and further that (24 of 25) [CRLA-656/2012] it was made known to her by Deshu and Raja who had come on the spot. Coming to P.W.4-Gurmel Singh, it is pertinent to note that the suggestion of the defence that when he was sitting on the charpai and he had not seen the incident occurred in the north of the wall was accepted by him as correct and he further deposed that after the murder when the accused persons ran away towards the jeep, we chased them then saw them fleeing away in a jeep and thus, his testimony regarding he having seen the accused Kala Singh when he fired the shot, becomes absolutely doubtful. On the facts and circumstances of the case, in absence of identification parade, the identification of the accused by the witnesses in the court, who by that time was already known to them, cannot be accepted as reliable.
41. As noticed hereinabove, as per the eye witnesses, Kala Singh fired the shot by a pistol and at the instance of the accused appellant, the police had recovered the pistol whereas, as per ballistic report (Ex.P/11), the bullet recovered from the body of the deceased has not been fired from .32" country made pistol, recovered at the instance of the appellant accused rather, it is opined that it has been fired from .32" rifle firearm. Thus, the factum of the injury being caused to the deceased by the shot fired by pistol becomes doubtful. In this view of the matter, in our considered opinion, it was incumbent upon the prosecution to prove its case by examination of expert. Suffice it to say that in view of the discrepancies crept in it would not be safe to convict the accused appellant on the basis of oral testimony without confirmation by the expert evidence.
(25 of 25) [CRLA-656/2012]
42. Thus, keeping in view the apparent contradictions and inconsistencies in the statement of the eye witnesses on the material points and their deposition being not found in consonance with the medical and ballistic evidence on record, their testimony regarding they having seen the accused appellant firing a shot at Banta Singh, cannot be accepted as truthful and reliable and therefore, the guilt of the accused appellant is not proved beyond reasonable doubt and he deserves to be acquitted of the charges giving benefit of doubt.
43. In the result, the appeal succeeds, it is hereby allowed. The impugned judgment and order dated 17.5.12 passed by the Additional Sessions Judge (Fast Track), Anoopgarh in Session Case No.39/09 is set aside. The accused appellant is acquitted of the charges for offences under Sections 449, 302 IPC and 3/25 (1-B)
(a) of Arms Act, giving benefit of doubt. The accused appellant shall be released forthwith, if not required in any other case. However, the accused appellant shall furnish personal bond in sum of Rs.25,000/- and a surety in like amount to the satisfaction of the trial Court in conformity with the provisions of Section 437 A Cr.P.C.
(VIRENDRA KUMAR MATHUR),J. (SANGEET LODHA),J. Aditya/