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Bachan Singh and ors. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 474/1979
Judge
Reported in1982WLN(UC)358
AppellantBachan Singh and ors.
RespondentThe State of Rajasthan
DispositionAppeal allowed
Cases ReferredIn Mohinder Singh v. The State
Excerpt:
.....gun.;there is no evidence on the record to prove that the pellet wounds found on the dead body of dalip singh deceased were possible to be caused by firing a shot with this gun.;no ballistic expert was produced in evidence by the prosecution in this case.;the evidence produced by the prosecution is not reliable and that independent and reliable evidence which could be produced has not been produced by the prosecution, we hold that the prosecution has failed to prove beyond reasonable doubt any of the charges framed against the appellants.;appeal allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was..........including the charge in respect of the offence of rioting armed with deadly weapons, murder of one dalipsingh, attempt to murder one balwantsingh and house trespass after preparation for hurt punishable under sections 148, 302, 302, 149 307, 307, 149 and 452 of the indian penal code. the seven accused who are not before us in this appeal were acquitted of all the charges framed against them. the appellants were convicted and sentenced as under:bachan singh(i) imprisonment for life under section 302/149 i.p.c.(ii) rigorous imprisonment for 7 years under section 307, 149 i.p.c.(iii) rigorous imprisonment for 3 years under section 452 i.p.c.(iv) rigorous imprisonment for 2 years under section 148 i.p.c.(2) mala singh(i) imprisonment for life under section 302, 149 i.p.c.(ii) rigorous.....
Judgment:

K.S. Sidhu, J.

1. The appellants, Bachansingh, Mulksingh, Malasingh & Balbirsingh were tried by the Sessions Judge Bharatpur, along with seven others on various charges including the charge in respect of the offence of rioting armed with deadly weapons, murder of one Dalipsingh, attempt to murder one Balwantsingh and house trespass after preparation for hurt punishable under Sections 148, 302, 302, 149 307, 307, 149 and 452 of the Indian Penal Code. The seven accused who are not before us in this appeal were acquitted of all the charges framed against them. The appellants were convicted and sentenced as under:

Bachan Singh

(i) Imprisonment for life under Section 302/149 I.P.C.

(ii) Rigorous imprisonment for 7 years under Section 307, 149 I.P.C.

(iii) Rigorous imprisonment for 3 years under Section 452 I.P.C.

(iv) Rigorous imprisonment for 2 years under Section 148 I.P.C.

(2) Mala Singh

(i) Imprisonment for life under Section 302, 149 I.P.C.

(ii) Rigorous imprisonment for 7 years under Section 307, 149 I P.C.

(iii) Rigorous imprisonment for 7 years under Section 307 I.P.C.

(iv) Rigorous imprisonment for 3 years under Section 452 I.P.C.

(v) Rigorous imprisonment for 2 years under Section 148 I.P.C.

(3) Mulak Singh

(i) Imprisonment for life under Section 302 I.P.C.

(ii) Rigorous imprisonment for 7 years under Section 307/149 I.P.C.

(iii) Rigorous imprisonment for 7 years under Section 452 I.P.C.

(iv) Rigorous imprisonment for 2 years under Section 148 I.P.C.

(v) Rigorous imprisonment for 1 year under 25 Arms Act.

(4) Balbir Singh

(i) Imprisonment for life under Section 302/149 I.P.C.

(ii) Rigorous imprisonment for 7 years under Section 307, 149 I.P.C.

(iii) Rigorous imprisonment for 7 years under Section 307/I.P.C.

(iv) Rigorous imprisonment for 3 years under Section 452 I.P.C.

(v) Rigorous imprisonment for 2 years under Section 148 I.P.C.

2. The case of the prosecution which resulted in the conviction of the appellants as aforementioned may be shortly stated here. On November 10, 1976, at 8.30 A.M., Kartar Singh a resident of village Bamanvadi went to Police Station Pahari and made a written report (Ex. P/1) complaining that 12 persons, including the four appellants, armed with deadly weapon like guns, ballam pharsa and swords, entered his home, and started abusing him and other inmates of the house on November 9, 1976, at about 6.30 P.M. Appellant Bachan Singh and Mala Singh fired gun shots at Balwant Singh (PW 13) who sustained pellet injuries on both feet. Dalip Singh deceased who was standing in front or his Kotha was fired at by appellant Mulka Singh and Balbir Singh son of Hukam Singh. Dalip Singh died on the spot as a result of those gun-shot injuries. Balbir Singh son of Hukamsingh one of the two alleged killers of Dalipsingh, was himself killed sometime after this occurrence Another accused by the same name of Balbirsingh who is one of the appellants before us also fired, but none was injured by his shot. The complainant mentioned in the report that the occurrence had been witnessed by Laxmi Bai, Birma Bai, Santo Bai, Khushalsingh, Bholasingh, Partapsingh and others. He further mentioned the there in that on hearing the gun-fire, a large number of villagers reached there. The accused ran away on seeing the villagers.

3. The motive of the crime as given in the report is that one Harnam Singh, a maternal uncle of accused Balbir Singh, since killed, had murdered the complainant's father & brother & that Harnam Singh had been convicted and sentenced for the commission of that crime. Balbir Singh accused had been harbouring ill-will and enmity against the complainant and his family ever since Harnam Singh's conviction and sentence.

4. On receipt of this report the Pahadi police registred a formal F.I.R. (Ex. P 10) which is a verbatim copy of the written report. Sub Inspector Phool Singh (PW. 14) went to village Bamanvadi the same day and saw the dead body of Dalip Singh lying infront of his Kotha. He prepared a rough sket(sic) (Ex. P/12) of the alleged scence of the crime. He also recovered from the compound of the complainant's house 4 empty cartridges vide recovery nemo Ex. P.5. He prepared the inquest report Ex. P/4. He sent the dead body of Dalipsingh for pest mortem examination. Dr. Ramesh Rumar Pareek (PW. 15) conducted the post morem examination on the same day at 1.40 p.m. Dr. Pareek found pellet wounds on the upper part of the body of the deceased like chest, shoulders, cheek, neck and upper arms, both the lungs had been pieced through. Blood was found accumulated underneath the preicardium and around the heart. Dr. Pareek opined that Dalip Singh's death resulted from excessive haemorrhage and sheck due to these injuries.

5. Dr. Pareek also examined Balwant Singh (PW. 13) on the same day and found pellet wounds on his thighs and legs.

6. During the trial, the prosecution examined among others, Khushal Singh, Laxmi Bai, Iqbal Singh, Kartar Singh, Kal Singh, Santo Bai, Ganga Singh, Bhola Singh. Amar Singh, Balwant Singh, Dr. Ramesh Pareek and Sub Inspector Phool Singh as witnesses in support of its case. By and large they supported the prosecution story as narrated above.

7. In their statements under Section 313 Cr.P.C. the accused denied the allegations against them and protested their innocence. They pleaded that they have been falsely implicated in this case by Kartar Singh and other members of his party on account of previous enmity.

8. In cross-examination of the prosecution witnesses, learned defence Counsel put to the witnesses what was described during the course of arguments as a theory of defence. He made positive suggestions to the witnesses to the effect that complainant Kartar Singh and his brother Khushal Singh and Dalip Singh deceased had surrounded Balbir Singh son of Hukam Singh in the street and that the latter had fired at them in self-defence killing Dalip Singh on the spot. Learned defence Counsel further suggested to the witnesses that they had thereafter removed the dead-body of Dalip Singh from the street and kept it infront of his Kotha to create evidence that they had been attacked by the accused in their own house.

9. DWs. Amar Singh and Jarura were produced to give evidence in support of defence version. They testified to alight in the village street between Kartar Singh, Khushal Singh and Dalip Singh, deceased of the complainant party on one side and Balbir Singh son of Hukam Singh on the other. They deposed that Balbir Singh who was armed with a gun shot Dalip Singh dead on the spot and that Kartar Singh and Khushal Singh removed the dead body of Dalip Singh from there to the compound of his house.

10. On a consideration of evidence produced before him, the learned trial Judge came to the conclusion that the prosecution had failed to prove beyond reasonable doubt that Mangal Singh, Gopal Singh, Charan Singh, Khushal Singh, Darshan Singh, Hukam Singh and Munsha Singh accused were present at the scene of crime and participated in the commission thereof. He, therefore, acquitted all of them. He however further came to the conclusion on the basis of the alleged ocular evidence of Kartar Singh, Khushal Singh, Iqbal Singh, Santobai, Bhola Singh, and Balwant Singh that all the four appellants along with Balbir Singh son of Hukam Singh deceased had participated in the commission of the crimes of murder of Dalip Singh and attempt to murder Balwant Singh. Consequently, he passed the impugned order of conviction and sentence as set out in the beginning of this judgment.

11. We have very carefully perused the evidence on record and heard both sides. We are of the considered opinion that it will not be safe to record any order of conviction against any of the four appellants on the basis of the evidence produced. It is an admitted fact that there is long standing enmity between the members of the accused party and the complainant party. It will be recalled that the complainant had mentioned in the F.I.R. itself tint several years before this incident Harnam Singh a maternal uncle of Balbir Singh accused since killed, had murdered the complainant's father Labh Singh and Labh Singh's brother Jagtar Singh. Evidence is also available on record to prove that a month prior to this occurence there was a shooting incident On investigation of that incident, the police sent up a number of members of the complainant party including complainant Kartar Singh for making an attempt on the life of appellant Bachan Singh. The said case was still pending trial when Kartar Singh and other members of his party appeared as witnesses in this case. As already stated, Balbir Singh son of Hukma Singh against whom Kartar Singh had made accusation that he was one of the killers of Dalip Singh was himself killed sometime after this incident. Complainant Kartar singh admitted in his deposition during the trial that he and a number of other witnesses in this case figure as accused persons in the case relating to the murder of Balbir Singh son of Hukam Singh.

12. It can thus be safely concluded that there is deep-seated and long -standing enmity between the members of the two parties. The evidence of the complainant and his witnesses must therefore be scrutinised with extra care.

13. It will then be seen that all the material prosecution witnesses are closely related to one another. Khusal Singh (PW.1) is son of Jagtar Singh, who was killed along with his brother Labh Singh nearly 20 years back by Harnam Singh a member of the accused party. Compalinant Kartar Singh is son of Labh Singh. Thus Khushal Singh and complainant Kartar Singh are first cousins. Khushal singh's mother Birabai who was cited as a prosecution witness in this case but not produced had remarried Dalip singh deceased after her husband Jagtar Singh had been killed by Harnam Singh Laxmi Bai (P.W.2) and Iqbal Singh (PW. 3) are wife and son, respectively, of the complainant Kartar Singh. Santo Bai (PW. 8) is wife of Balwant Singh (PW. 13). Bhola Singh (PW. 11) is son of complainant Kartar Singh's father's brother namely Kala Singh. It may be mentioned in this context that the said Kala Singh has also appeard as PW 9 to prove the alleged recovery of a 12-bore country made gun at the instance of the appellant Mulda Singh.

14. Thus, the evidence of Pws. Kartar Singh Laxmi Bai, Iqbal Singh, Khushal Singh, Santobai, Bhola Singh and Balwant Singh is highly suspect on account of their previous enmity with the accused and their close relationship inter se and with the deceased Even the learned trial Judge was not prepared to place reliance on their testimony in respect of 7 accused who were acquitted by him. It is significant to note that the occurrence resulting in the death of Dalip Singh deceased had also been witnessed by large number of villagers. Complainant Kartar Singh mentioned in the F.I.R. that a number of villages had reached the scene of occurrence on hearing the report of gun-fire and that the accused ran away from there on seeing the villagers. Bhola Singh (PW.11) stated that Ganga Singh, Pritam Singh and Jabar Singh had witnessed the occurrence. Pritam Singh and Jabar Singh have not been produced as witnesses in this case. Ganga Singh who was produced as PW. 10 gave evidence as a Panch witness relating to the preparation of the inquest report Ex. P/4. The Public Prosecutor did not ask him any question relating to the transaction resulting in the death of Dalip Singh and injuries to Balwant Singh, indicating there by that either Ganga Singh had not witnessed the occurrence or he was not prepared to support the prosecution case in that behalf.

15. We have thus no hesitation in holding that independent eyewitnesses of the occurrence, though available, have not been produced by the prosecution, In the facts and circumstances, therefore, it would be highly unsafe to place reliance on the testimony of relation witnesses.

16. Amar Singh (DW1) and Jarura (D W.2) a Meo by caste, who cams forward to give evidence in defence were living in the neighborhood of Dalip Singh deceased at the material time. They appear to be independent witnesses. They supported the defence version to the effect that complainant Kartar Singh, Dalip Singh deceased and Khushal Singh (PW.1) had surrounded Balbir Singh son of Hukam Singh in the street. They further stated that Dalip Singh was armed with a gun and similarly Balbir Singh was also armed with a gun. They further stated that Balbir Singh son of Hukam Singh fired and shot Dalip Singh dead. They also supported the defence version that. Khushal Singh and Kartar Singh Pws removed the dead body of Dalip Singh from the street and took it to his house nearby.

17. Now if Dws Amar Singh and Jarura are to be believed, Balwant Singh (PW. 13) who is said to have been fired at and injured by appellant Mala Singh was not even present at the time of this occurrence. The case of defence is that Balwant Singh who was an accused in the case of alleged attempt on the life of appellant Bachan Singh a month prior to this occurence was absconding at that time. If we read the statement of Sub-Inspector Phool Singh the investigating officer between the lines, it will be evident that even he had to admit that Balwant Singh was one of the accused in the case State v. Kartar Singh and Ors. which was pending at the time of 'this occurrence and that since Balwant Singh was absconding, a warrant of arrest was issued against him by the Chief Judicial Magistrate, Bharatpur. This would lend support to the defence version that Balwant Singh was not present at the time of this occurrence in village Bamanvadi on November 9, 1976 at 6. 6.30 p.m.

18. The genesis of the occurrence as presented by the prosecution, is highly improbable and unconcincing. Iqbal Singh (PW.3) who as already stated is the son of complainant Kartar Sing stated that while on his way to village Sehsan to get some wheat ground for flour, he saw accused Mala Singh, Mulka Singh and Balbir Singh all three armed with guns, sitting at the tube-well of Surpan Singh. Balbir Singh challenged him threatening that he would not be allowed to escape. He would have us believe that he jettisoned his head-load of wheat, ran back and thus managed to return home unhurt. According to him, the afore mentioned three accused, along with nine other accused, all armed with deadly weapons came to his house within an hour of the aforementioned incident and committed the murder of Dalip Singh and fired at others including Balwant Singh who was injured. On the face of it, this story is difficult if not impossible, to believe. Had Iqbal Singh, carrying a head-load of wheat, encountered three enemies armed with guns, as alleged by him, they would not have allowed him to escape unhurt if they really intended to kill him. In any case, the said incident could not possibly serve as any provocation to Mala Singh, Mulka Singh, Balbir Singh to collect their own men into a force consisting of 12 armed persons and raid the house of Iqbal Singh and kill there Dalip Singh instead of Iqbal Singh within an hour of that incident. It seems to us that the prosecution has not disclosed the whole truth as to how and where the occurrence resulting in the death of Dalip Singh started. The possibility of a fight between Dalip Singh deceased, Kartar Singh and Khushal Singh PWs on one side and Balbir Singh son of Hukam Singh accused (since killed) on the other, and of Dalip Singh in that fight, as testified to by DWS Amar Singh and Jarura Mev, cannot be ruled out.

19. The prosecution produced some evidence in an attempt to prove that a 12 bore gun (Article 9) was recovered from the house of appellant Mulka Singh in consequence of the information supplied by him. Obviously the prosecution produced this evidence to prove that this gun was used by Mulka Singh in firing at Dalip Singh deceased. We are far from satisfied on the evidence on record lhat this gun was recovered by SI Phool Singh from the possession of Mulka Singh. There is no independent and reliable evidence to prove that Mulka Singh made any disclosure to SI Phool Singh resulting in the recovery of this gun. In the facts of this case, we are not much impressed by the self serving testimony of St Phool Singh that the statement Ex. P/15 was made by Mulka Singh to him on February 10,1977, prior to this recovery. The evidence regarding recovery is also unsatisfactory. PWs. Amer Singh and Kala Singh who are said to have attested the recovery memo, Ex. P/16, as motbirs did not prove this document as such in their depositions in the court. The pubic prosecutor did not ask them a single question relating to this memo. Kala Singh made it clear that the house from which the recovery of the gun was made belongs to the father of Mulka Singh who is alive and was himself present at the time of the recovery.

20. For all these reasons, we are not prepared to hold that the gun Article 9 was recovered from the possession of Malka Singh. Even assuming that this gun had been recovered from his possession, there is no evidence on the record to prove that the pellet wounds found on the dead body of Dalip Singh deceased were possible to be caused by firing a shot with this gun. In Mohinder Singh v. The State, A.I.R. 1953 Supreme Court 415, their Lordships held that in a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with such a weapon. No Ballistic Expert was produced in evidence by the prosecution is this case.

21. In view of the foregoing discussion of the evidence available of the record and our opinion that the evidence produced by the prosecution is not reliable and that independent and reliable evidence which could be produced has not been produced by the prosecution, we bold that the prosecution has failed to prove beyond reasonable doubt any of the charges framed against the appellants. Like the seven co-accused who have been acquitted by the trial court the appellants also deserve to be given the benefit of doubt and acquitted.

22. We would therefore allow this appeal, set aside the order of conviction and sentence against the appellants and acquit them of all the charges framed against them. They are in jail. They shall be set at liberty forthwith, if not required to be detained in any other case.


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