CRLA/392/1985 of NARAYAN SINGH Vs STATE on 26 July 2000

1. Bagh Singh S/o Bharat Singh

2. Gopal Singh S/o Hamer Singh

3. Roop Singh S/o Hamer Singh

All by Caste Rajputs, Resident of Village Jhadoli, District Udaipur. ----Appellants

Versus

The State of Rajasthan

----Respondent

D.B.CRIMINAL APPEAL No. 28 / 1986

1. Ganeshdan S/o Dherudan by caste Charan, resident of Jhadoli, District Udaipur.Jhadoli, District Udaipur.

2. Bhajja S/o Hakra, by caste Kumhar, resident of Jhadoli, District Udaipur.District Udaipur.

----Appellants

Versus

State of Rajasthan

----Respondent

_____________________________________________________

For Appellant(s) : Mr.Dungar Singh

For Respondent(s) : Mr. JPS Choudhary

_____________________________________________________

HON'BLE THE CHIEF JUSTICEHON'BLE MR. JUSTICE GOVERDHAN BARDHARCAV JUDGMENT

PER HON’BLE BARDHAR, J.

12/01/2017

The present appeals have been filed by the Appellantsagainst the judgment dated 18.11.1985 passed by learnedSessions Judge, Udaipur in Sessions trial No. 93/1984 whereby,the learned Judge has convicted the appellants to lifeimprisonment under Section 302/148 IPC alongwith fine anddefault stipulation and also variously under Sections 341, 324 and323 IPC.

During the pendency of the appeal, Appellants KhumanSingh, Malam Singh and Hakma died on 01.07.1996, 03.01.2015and 04.10.2004 respectively and their appeal already standsabated.

Out of three appeals, Mr. Dungar Singh appears on behalf ofappellants in Criminal Appeal Nos. 408/985 and 28/1996 but noneappears to argue the Criminal Appeal No. 392/1985.

Appeal No. 392/1985 was instituted on 09.12.1985 and theAppellant enlarged on bail on 08.09.1999. Considering the age ofthe appeal, the period since grant of bail to the Appellant andabsence of representation on his behalf, we are not inclined toadjourn the matter further and the appeal has therefore beentaken up for consideration alongwith Appeal No. 408/1985 and28/1986 with assistance of Mr. Singh and Counsel for the State.

An FIR came to be lodged on 17.03.1984 at Police StationGogunda by Shambhu Singh alleging therein that Daulat Singhhad come to Jhadoli for the purpose of attending “Dhund’ceremony as Shambhu Singh and Bhawani Singh were blessedwith sons. It is alleged that Daulat Singh came to the house ofBhawani Singh at 9 pm and at that time, Bhawani Singh, ShailSingh and Shambhu Singh were at home. Daulat Singh afterhaving dinner decided to leave for his village Tarpal at about 10pm but he was advised by Shambhu Singh, Bhawani Singh andShail Singh not to leave in the night but Daulat Singh insisted togo and he started from the residence of Bhawani Singh and ShailSingh went to see him off at the ‘Pole’. As per allegation in theFIR when they reached outside the ‘Pole’, Shail Singh raised hueand cry upon which the complainant, his mother Mohan Bai andbrother Bhawani Singh came to the ‘pole’ and saw that GaneshDan, Hamer Singh, Bagh Singh, Manohar Singh were assaultingShail Singh and Daulat Singh. It is alleged that when complainanttried to intervene, he was also assaulted by lathi on the head andhis mother was injured by axe. It is further alleged that whenDaulat Singh got up and ran towards Tarpal, they were joined byKhuman Singh, Hukma Kumar, Narayan Singh, Malam Singh, GopSingh, Roop Singh, Bhajja Kumar armed with lathis. All of themafter surrounding Daulat Singh attacked with lathi and axe andkilled him.

In support of prosecution story, the prosecution examined 23witnesses and exhibited 48 documents. The statements of

appellants were recorded under Section 313 Cr.P.C. wherein theydenied the allegations and claimed trial.

PW/4 Shambhu Singh, PW/5 Shail Singh and PW/9 Mohanbai are injured witnesses who have admittedly suffered injuriesduring the said incident and in their evidence they have statedthat the injuries were caused by the accused persons.

On the basis of evidence on record especially evidence ofaforesaid three injured witnesses, the learned trial court convictedand sentenced the accused appellants to life imprisonment.

Counsel for the appellants submitted that there is delay insending the report to the Court as the FIR was lodged on17.03.1984 but it reached the Court on 19.03.1984. Further asper evidence of PW/2 Hakma at the time of incident, the wholevillage was there celebrating Holi festival but there is not a singleindependent witness from the village who has been produced insupport of prosecution case, hence adverse inference ought tohave been drawn against the prosecution on account of non-production of such persons. It is further submitted that theinvestigation was also unfair as there is no explanation as to whatwere such mitigating circumstances under which the policethought it appropriate to have the statements of PW/3 BhawaniSingh, PW/4 Shambhu Singh and PW/5 Shail Singh recordedunder Section 164 Cr.P.C. It is argued that no effort whatsoeverhas been made by the prosecution to find out as to who were theactual assailants, their individual role and what was their number.There is also no specific role assigned to the individual accused

and the accused have been convicted on the basis of omnibusstatement of witnesses. Learned Sessions Judge has acquitted theaccused Hamir Singh on the same set of evidence whereas, threesons of Hamir Singh have been falsely implicated and accusedManohar Singh was also acquitted in a separate trial.

It is further argued that PW/3 Bhawani Singh has stated thathe did not see the assault. The evidence of interested witnesseshave not been corroborated by any independent source and inview of the number of injuries sustained by deceased Daulat Singhand his companions, it is a clear case of over-implication. Learnedcounsel further argued that no blood is collected from the place ofassault in the first part of incident which creates doubts in theprosecution story. The absence of collection of blood from the firstplace of part of incident renders the evidence of prosecution notcredible. There is no description in the site plan (Ex.P/2) aboutthe place where the body of Daulat Singh was found. Counselfurther argued that Ex.P/48 which is the report submitted byaccused Narayan Singh and Manohar Singh against the deceasedDaulat Singh and three other companions regarding altercationwith Hukma and Bagh Singh, has not been taken intoconsideration. In view of the report Ex.P/48 and the discrepancyin evidence of prosecution, in all likelihood the deceased hadaltercation with the village people and in that altercation, injurieswere caused to Daulat Singh. It is further argued that theallegation made by eye-witnesses PW/3 Bhawani Singh, PW/4Shambhu Singh and PW/5 Shail Singh to the effect that accused

Ganesh Dan gave two blows on the back of head of deceasedfrom sharp side of axe, which has been believed by the learnedTrial Court does not corroborate with the medical evidence asinjury no.2 on the head is the cause of death and same islacerated wound. As per learned counsel for the appellants, inabsence of authorship of fatal injury, there is no way all theaccused persons can be held responsible for offence of murderunder Section 302 simplicitor. In support of arguments, he placedreliance on AIR 1966 SC 1742 (Lakhan Mahto and others Vs. Stateof Bihar).

Analysis

Per contra, learned Counsel for the State argued thatjudgment of the learned trial court is mainly based on testimonyof three eye witnesses PW/3, PW/4 and PW/5. Learned PublicProsecutor further argued that the learned trial court has foundthe evidence of aforesaid eye-witnesses to be trustworthy whohave spoken about role and the overt act of the accused. PW/3Bhawani Singh, PW/4 Shambhu Singh and PW/5 Shail Singh havecategorically stated about the incident which occurred at the“Pole” i.e. front side of house of Shail Singh and so also about theplace of assault in the second part of incident where the assailantschased Daulat Singh and assaulted. The witnesses havecategorically stated that they were present all the way during thecourse of entire incident and the evidence of aforesaid witnesses isalso corroborated by the evidence of Dr. Om Prakash whoconducted the autopsy on the body of Daulat Singh whichstrengthens the case of the prosecution. Learned Counsel for the State argued that learned Trial Court has rightly convicted theaccused persons and sentenced them for offence under Section302 IPC which does not call for any interference.

We have considered the submissions on behalf of parties andcarefully scanned the material on record, exhibits and thedeposition of witnesses.

Entire prosecution case hinges on testimony of three eyewitnesses, namely, PW/3 Bhawani Singh, PW/4 Shambhu Singhand PW/5 Shail Singh and recovery of weapons at instance ofaccused-appellants. These two factors have weighed with learnedtrial Court in recording finding of conviction against them. Whathas to be considered is whether the allegations against presentaccused appellants have been proved beyond reasonable doubt. Itis to be observed here that mere fact that witnesses happen to berelated to deceased, would not be a reason to entirely discardtheir testimony, although it is true that Court has to minutelyscrutinize their statements.

During trial, prosecution has produced four eye-witnessesnamely, PW/3 Bhawani Singh P/4 Shambhu Singh, PW/5 ShailSingh and PW/9 Mohan Bai and the investigating officer togetherwith opinion of the doctor PW/18 Dr. Om Prakash.

PW 18 Dr. Om Prakash conducted autopsy on the body of Daulat Singh on 17.03.1984 and found the following injuries :

(1) Two lacerated ante-mortem wounds were present on theposterior aspect of the scalp over the upper part of the occipitalbone of the skull.

(a) 2”X01”Xskin & Fascia deep

(b) 2” X01”X skin & fascia deep (longitudinal)

There were large quantity of blood present over the surface ofthe wounds & semi fluid inconsistency. The injuries were simplein nature and caused by blunt weapon.

(2) Lacerated wound ante-mortem in nature was present onthe left side of the scalp over the frontal bone of the skull 1”above the zygomatic bone of the skull.

size 3”X2”

The tissues underneath the wound were greatly congested ondissection. There was large haematoma present underneaththe injury over the frontal & temporal bone of the skullextending upto the left side of the face. There was fissured &depressed fracture of the frontal bone of the skull on the leftside. The zygomatic process the supraorbital plate of thefrontal creamial tissue & the bones of the base of the skull onleft side were fractured. The brain was congested & there washaemorrhage. The injury was grievous & dangerous to lifecaused by blunt & heavy weapon.

(3) Incised – Ante-mortem wound was present on the leftside of the forehead rust above the left eyebrow transverse indirection. Size 2.5 cm X 1 cmX skin and fascia deep injury issimple & caused by sharp weapon.

(4) Lacerated wound ½ cm X 0.4 cm present 1/2” away fromthe __ angle of the left eye, bone deep.

(5) Abrasion face swelling 6 cm X 5 cm present on the leftcheek caused by blunt weapon—simple.

(6) Cut-wound Rt. Nostril of the nose-2cm X 0.4cm cut nostrilat both the ends caused by sharp weapon.

(7) Cut woundpresent on the Rt. Side of the chin two innumbers.

(a) 3cm X 0.4cm X bone deep (b) 1cmX0.3cm 1/2” below theinjury No.(a) caused by sharp weapon.

(8) Contusionpresent in front of the left side of the chest atthe level of left infra clavicular region size 3”x2”.

(9) Contusionpresent on the right shoulder, over the rightclavicle 4cmX1.5cm

(10) Contusionpresent on the right side of the backlongitudinal 12”X1” reddish blue in colour.

(11) Contusion10”X1” present on the left side of the backreddish blue in colour.

(12) Contusionpresent on the left thigh upper and outer partsize 3”X2”

(13) Abrasions Two in numbers 1”X ½”, 3/4” X 1/2” front ofthe left thigh.

(14) Abrasion6 in numbers present on the right buttock each measuring ¾ to 1 cm in diameter.

(15) Abrasion2 in numbers each measured 1”X1/2” presentin front of the left thigh.

(16) Incisedlongitudinal wound 1.3 cm X o.3 cm deeppresent in front of the left leg caused by sharp weapon.

(17) Incisedwound ante-mortem nature present on the rightside of the lip between the mustaches size 3 cm X 0.3 cmopening into the mouth caused by sharp weapon.

The complainant PW/4 Shambhoo Singh who lodged the FIRExhibit.P/3 on 17.03.1984 in his evidence has stated thatdeceased Daulat Singh started from the residence of BhawaniSingh and Shail Singh went to see him off. When they reachedoutside the ‘pole’ Shail Singh raised hue and cry upon which heran outside and saw that Ganesh Dan, Hamer Singh and ManoharSingh were assaulting Shail Singh and Daulat Singh. Ganesh Danwas having axe in his hand, Bagh Singh was armed with thornylathi, Hamer Singh and Manohar Singh were armed with lathis.Ganesh Dan inflicted injry with axe on the left side of foreheadnear the eye. He has further stated that Bagh Singh gave a lathiblow to Daulat Singh on his right rib and Manohar Singh gave onelathi blow on Daulat Singh’s right shoulder. Hamer Singh gavelathi blow to Daulat Singh on his left shoulder. He has stated thatDaulat Singh fell on ground but he got up and started to runtowards Tarpal but Hamer Singh, Bagh Singh, Manohar Singhand Ganesh Dan ran after him. When the accused personsreached the house of Hakma Ram, Malam Singh, Gopal Singh,Khuman Singh, Roop Singh, Narayan Singh, Hakma and Bhajjacame armed with lathis and started to run after the deceased.Thus, at the relevant time Daulat Singh was being chased by

eleven persons. He further states that all the eleven personssurrounded the deceased and started inflicting injuries with axeand lathis. Ganesh Dan assaulted on the left eye of Daulat Singhwith axe, Bagh Singh hit him on left shoulder and Gopal Singh hithim on the left thigh due to which he fell on ground. Thereafter,Ganesh dan gave two more axe blows on the back side of head ofDaulat Singh. Due to these injuries, Daulat Singh lostconsciousness. When the complainant checked Daulat Singh, hehad died. He has further categorically stated in the cross-examination that when the accused persons chased the deceased,he and his brother cried for help but none of the villagers came for help.

Similarly, injured witness PW/5 Shail Singh @ Vijay singh hascorroborated the aforesaid version and while corroborating theprosecution story has stated that when the deceased reached the‘pole’ accused Ganesh Dan gave first blow on the left side of noseof deceased and second blow on the left side of forehead. Theother accused persons Bagh Singh, Manohar Singh, Hamer Singhwere carrying lathi. Upon raising cry, his mother Mohan Bai so alsoBhawani singh Shambhu Singh and Hukmi Dan came who werealso assaulted by accused persons. As per said witness ShailSingh, after the deceased Daulat Singh was surrounded byaccused persons, Bagh Singh and Gop Singh gave lathi blows todeceased due to which deceased fell down and while the deceasedwas lying on ground, Ganesh Dan inflicted two blow of axe uponthe deceased from the blunt side.

These two injured eye witnesses not only corroborated theirrespective accounts but were not shaken in cross-examination.

Another witness of the incident, PW/3 Bhawani Singh in hisstatement clearly stated that when he heard the cry of Shail singhhe went out and he saw that deceased was lying outside drenchedin blood who was being beaten by Ganesh Dan, Bagh Singh,Manohar Singh, Hamer Singh. Upon intervention Bagh singh gavelathi blow on head to Shambhoo Singh and Shail Singh. As perPW/3 Bhawani Singh, when he came out of ‘Pole’ he saw injury onface and head of deceased caused by the accused. It has beenfurther stated that the four accused persons were joined by otherseven accused persons who were armed with lathis and all ofthem circled deceased Daulat singh and assaulted him due towhich Daulat Singh fell on ground. In the cross-examination thesaid witness has stated that when deceased Daulat Singh waslying on the ground, accused Ganesh Dan inflicted a blow of axeupon the head of the deceased.

Similarly, the third injured witness PW/9 Mohan Bai in herstatement has also supported the story of aforesaid eye witnessesand has stated that when she came out of house and intervened,accused Ganesh Dan gave axe blow on her left hand.

The evidence of eye-witnesses is also corroborated byevidence of Dr. Om Prakash as per postmortem report Ex.P/24.Injury No.3 is the incised wound on right side of the foreheadabove eye and second wound below the nostrils. The deceasedhad sustained seventeen injuries out of which Injury no.1 & 2 are

lacerated wounds and on the head. Similarly, the evidence ofassault by accused upon the eye witnesses is also corroborated bythe medical report Exhibits. P/9, 25, & 26.

It is trite law that the evidence of injured witness, being astamped witness, is accorded a special status in law. This is aconsequence of the fact that injury to the witness is an inbuiltguarantee of his presence at the scene of the crime and becausethe witness would not want to let the actual assailant gounpunished. Looking to the statements of the injured eye-witnesses and evidence of Dr. Om Prakash, presence of aforesaidwitnesses at the places of occurrence is established and there isno reason to disbelieve the testimony of injured eye-witnesses atall.

It is also relevant to note that evidence of witnesses is notinconsistent with medical evidence and place of occurrence andinjured eye witnesses not being able to tell the Court as to howmany injuries were received by the deceased and with whatweapons, the factum of their being beaten up by the persons whowere named is not shaken. It is obvious that in the night it is verydifficult to make out who hit whom and with what. The learnedSessions Judge painstakingly went through the evidence of allwitnesses including the three injured eye witnesses and the DoctorPW. 18 who testified that the death was homicidal in nature andthe Investigating Officer deposed as to the recovery of theweapons that were used in the incident.

Thus, the courts below has gone through the evidence andhave relied heavily upon the evidence of injured eye witnessesand the Investigating Officer together with the opinion of doctorOm Prakash.

In this case as per FIR Exhibit P/3, the incident took place onthe day of Holi festival and as per evidence on record, it isrevealed that there is no delay in the investigation and merely thereport was sent to the Court on 19.03.1984 which does not createany doubt upon the fairness of investigation.

So far as acquittal of accused Hamer Singh is concerned,there is no appeal against his acquittal. Learned Trial Judge inpara 54 has observed Hamer Singh was 72 years old and due todisability could not walk without crutches whereas the prosecutionwitness PW/5 Shail Singh categorically stated that accused ranafter Daulat Singh and hit him near the house and thereafter atthe Chabutra and did not assaulted in between. In the light ofevidence on record, the Trial Court acquitted Hamer Singh whilegranting him benefit of doubt.

One of the arguments of learned counsel for the appellantswas to the effect that no blood stained clothes, soil etc werecollected during the investigation from the place of first part ofincident. In this regard, reference can be made to judgment ofHon’ble Apex Court in State of Rajasthan v. Arjun Singh and Ors.:(2011) 9 SCC 115. In the said decision the Court has opined thatabsence of evidence regarding recovery of used pellets,

bloodstained clothes, etc. cannot be taken or construed as no suchoccurrence had taken place. It has been further observed thatwhen there is ample unimpeachable ocular evidence and the samehas received corroboration from the medical evidence, even thenon-recovery of weapon does not affect the prosecution case.

As far as the contention of learned counsel for the appellantsto the effect that all the appellants could not have been convictedunder Section 302 IPC because as per postmortem report cause ofdeath was due to hemorrhage, shock, syncope & coma producedby fatal injury No.2 present on the left side of the skull leading tothe fracture of left frontal bone of the skull, the left bone of theskull caused by heavy blunt weapon. Learned counsel for theappellants relied upon the case reported in AIR 1966 SC 1742(Lakhan Mahto and others Vs. State of Bihar). In the said case,the Apex Court had observed that by framing a charge underSection 302 read with Section 149 IPC against the appellant it wasnot charging the appellant with the offence of murder and toconvict him for murder and sentence him under Section 302 of IPCwas to convict him of an offence with which he had not beencharged. In the matter in hand, on perusal of record, it is revealedthat charge was framed against the accused on 16.10.1984 thatthey were member of an unlawful assembly and did commitmurder by intentionally or knowingly causing death of Dault Singhand committed an offence punishable under Section 302 IPC orthey being member of an unlawful assembly in prosecution ofcommon object to commit murder of Daulat Singh caused death of

Daulat Singh and guilty of offence under Section 149 IPC causingoffence under Section 302 IPC. On perusal of evidence on record,we find that the facts and circumstances clearly bring out thatthere was an unlawful assembly and under Section 149 IPC if anoffence is committed by any member of an unlawful assembly inprosecution of the common object of that assembly, or such as themembers of that assembly knew to be likely to be committed inprosecution of that object, every person who, at the time of thecommitting of that offence, is a member of the same assembly, isguilty of that offence. Each of the accused persons were very wellaware that they are being tried for being part of assembly whichwas armed with weapons and hence, it was an unlawful assembly.On a close scrutiny of evidence on record, it is difficult to hold thatany prejudice has been caused to the appellants accused andthus, the said submission pales into insignificance.

In the above back drop, on analyzing the testimony of theinjured eye witnesses, we find no reason to interfere with theconviction of the appellants.

The appeals are dismissed. The bail bonds of the Appellantsare hereby cancelled. They are directed to surrender forthwithand/or be taken into custody for serving out the remaining periodof sentence.

(GOVERDHAN BARDHAR)J.

(NAVIN SINHA)C.J.

bjsh