Full Judgment Text
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CASE NO.:
Appeal (crl.) 1733 of 1996
PETITIONER:
State of Rajasthan
RESPONDENT:
Taran Singh & Anr.
DATE OF JUDGMENT: 08/10/2003
BENCH:
N.Santosh Hegde & B.P.Singh.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE,J.
The State of Rajasthan is in appeal before us against the
judgment of the High Court of Rajasthan at Jodhpur made in
Criminal Appeal No.111 of 1991. The appeal before the High
Court was against a judgment of Additional Sessions Judge
No.1, Hanumangarh who by the said judgment, while acquitting
13 other accused persons, convicted the respondents herein for
offences punishable under Sections 302 and 302 read with 34
IPC. By the impugned judgment, the High Court has allowed
the appeal setting aside the conviction and sentence imposed on
the respondents by the trial court.
Brief facts necessary for the disposal of this appeal are as
follows :
Because of certain enmity arising out of political rivalry
between the group of respondents herein and the complainant
PW-1, it is stated that on 10.6.1988 at about 11 \026 11.30 p.m. in
Chowk Bazar near the bus-stand in the village Tibi, respondents
herein and 13 others formed themselves into an unlawful
assembly and attacked deceased Mahavir Singh in which attack
second respondent herein exhorted the first respondent to shoot
said Mahavir Singh who belonged to the group of complainant
and pursuant to the said exhortation A-1 shot said Mahavir
Singh with a 12 bore gun which shot hit him on the back of his
neck consequent to which Mahavir Singh fell down dead. The
incident in question according to prosecution, was witnessed by
PWs.1 and 2 and PW-3 who happened to come to the place of
incident immediately thereafter. The complaint in this regard
was lodged in Police Station Tibi by about 10.40 a.m. on
11.6.1988, and the special report in regard to this incident
actually reached the jurisdictional Magistrate at about 12 Noon
on that day.
The investigation in the case was conducted by PW-7 and
based on the evidence of PWs.1 to 3 coupled with the
supporting evidence led by the prosecution, the trial court came
to the conclusion that the case against A-3 to A-15 has not been
established by the prosecution, hence, acquitted them, while it
found A-1 guilty of an offence punishable under Section 302
and A-2 was convicted for an offence punishable under Section
302 read with 34 IPC.
The High Court in appeal on re-appreciation of evidence
came to the conclusion that the prosecution has failed to
establish its case even against these accused persons, hence,
allowed the appeal, setting aside the judgment of the trial court.
Mr. Alok Bachawat, learned counsel appearing for the
appellant-State, contended that the High Court committed an
error in coming to the conclusion that PWs.1 and 2 could not
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have witnessed the incident in question. According to him,
these two witnesses (PWs. 1 and 2) who had gone to see the
brother of the deceased who was injured in a previous incident,
were on their way-back from the hospital along with the
deceased when the deceased was attacked by respondent No.1
at the instance of respondent No.2, because the deceased was
the brother of said Surendra Singh and a party man of their
political rival. Learned counsel also submitted that the court
below erred in coming to the conclusion that the complaint in
question was filed belatedly after due deliberations. He also
challenged the finding of the High Court which held the place
of incident as projected by the prosecution has not been
established.
Mr. Sushil Kumar, learned senior counsel appearing for
the respondents, supported the judgment of the High Court.
From a perusal of the judgment of the High Court, it is
seen that the High Court has allowed the appeal on following
grounds :
(i) Presence of PWs.1 and 2 at the place of incident is
doubtful;
(ii) Though admittedly deceased was bleeding profusely
and he was carried by PWs.1 and 2 to the hospital their
clothes were not blood-stained;
(iii) The version of PWs.1 and 2 as to the nature of attack
is contrary to medical evidence and there is a serious
doubt in regard to the place of occurrence;
(iv) The report of the ballistic expert does not support the
prosecution case;
(v) The defence version of the incident in question is
more probable.
(vi) The contradiction between the evidence of PW-7,
and I.O. on one hand and PWs.1 and 2 on the other
creates serious doubt as to prosecution case.
(vii) The prosecution has withheld material evidence
which would have supported the defence case.
While coming to the above conclusions, the High Court
in regard to the presence of PWs.1 and 2 at the place of incident
observed that their presence there was doubtful because they
having come to the hospital at Tibi to visit their relative who
were allegedly injured in an earlier attack by the members of
the accused group would not have left the hospital when the
said injured Surendra Singh was still unconscious and
unattended, that too taking with them the deceased who was the
real brother of the said patient and who was present there to
attend the patient, which act according to the High Court is
opposed to normal human conduct in the absence of any special
reason for doing so. The court also observed that the accused
persons admittedly did not have any such motive to kill the
deceased, therefore, their waiting at the bus-stand for the
deceased to come there, per chance, cannot also be accepted
because they had no knowledge that he would be passing
through the said place. Even the motive to kill suggested by
these witnesses for the attack on the deceased i.e. the deceased
was the brother of injured Surendra Singh, is something which
cannot be easily accepted. Apart from these facts, the High
Court also took note of the fact that though deceased was
profusely bleeding and these two witnesses carried him nearly
200 yards to the hospital, neither of the witnesses’ clothes were
blood-stained which is very unusual and most unlikely. The
High Court noticed the following observations of the trial court
in regard to the non existence of the blood on the clothes of
PWs. 1 and 2 :
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"So far as the question of the clothes of
these two not being stained by blood of the
deceased, Mahavir Singh is concerned, it is not
essential that his blood must be stained with the
cloth because enough blood had fallen at the place
of incident and it also depend how they picked up
the deceased for getting blood stains. If there
clothes had contacted wound, then only, there
would have been blood stain, but there is no
evidence as to how the deceased was picked up
and taken to the hospital. Thus in this circumstance
on not being blood stained, it cannot be said that
deceased Mahavir Singh had not taken to hospital
by Dayaram and Vijay Pal from the place of
incident."
Having noticed this explanation the High Court came to
the conclusion that this is an inference which could not have
been drawn by any reasonable person from the material on
record and we are in agreement with the said finding of the
High Court because we notice from the evidence of PWs.1 and
2 when they picked up the deceased, he was still bleeding
profusely and according to them, PW-1 carried him on his
shoulder while PW-2 held the chest of the deceased. Frankly we
are unable to understand how the deceased could have been
carried in the manner spoken to by these 2 witnesses. Be that as
it may, as held by the High Court in our opinion, if really these
two witnesses carried the deceased, the possibility of these
witnesses’ clothes being not blood-stained, is next to
impossible. In this background, if we examine the narration of
incident by these two witnesses, like the High Court, we also
notice that according to these witnesses when they came from
the hospital and started walking towards their village, on the
way they found the accused persons and their followers waiting
in a jeep and a tractor abusing abovesaid Surendra Singh. We
first of all, do not find any acceptable reason why the accused
persons should have been abusing said Surendra Singh amongst
themselves when there was nobody from the side of Surendra
Singh to listen to said abuses. That apart, we notice it is the
version of these two witnesses that the deceased decided to
bring about peace between the two groups, hence, proceeded
towards the accused saying that now since the election is over,
let there be no fight any further. It was at this stage, A-2
exhorted A-1 to kill the deceased stating that he is the brother
of Surendra Singh, and when the deceased heard this
exhortation, he allegedly turned around and ran which would
mean he started running towards the hospital from where he
came. At that time, A-1 shot him on his back. As noticed by the
High Court, if we examine the sketch plan then this part of the
evidence of PWs.1 and 2 does not find support from
prosecution’s own case because the direction in which the
deceased and PWs.1 and 2 were walking, was opposite to the
place where the hospital was situated (as could be seen from the
sketch) and if deceased turned around and started running back,
it should be towards the hospital, if so from the sketch we find
that the body of the deceased was lying not in the direction of
the hospital but in the direction of a shop belonging to one
Gopal Pandit in the Thara which is in the opposite direction.
Therefore, there is serious discrepancy also in regard to the
manner in which the incident took place atleast as evident from
the sketch plan produced by the prosecution and as spoken to
by the two witnesses. In this context, the High Court took into
consideration the defence put forward by the accused persons
who had stated that after the incident in which Surendra Singh
was injured, the members of the group belonging to said
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Surendra Singh which included the deceased, came to the
Chowk Bazar and wanted to attack the supporters of the group
of the accused persons who were in the shop of one Om
Prakash Satyanarain which was situated near the bus-stand and
said Om Prakash and others who were in the shop, noticing the
likely attack from this group, downed the shutters of the shop
but the same did not close completely hence, one of the
members of the group supporting Surendra Singh by name Safi
Mohd. fired with a 12 bore gun which inadvertently hit the
deceased who was then peeping between the gaps in the shutter
into the shop, and because of that injury the deceased fell down
dead on the Thara of the said shop of Om Prakash. Since there
is sufficient material to show that the body of the deceased in
this case was found lying on the Thara of the shop of said Om
Prakash, said defence taken by the accused persons finds some
support. At this juncture, we may also consider the material
relied upon by the High Court that there was a parallel
investigation in regard to the said attack in the shop of Om
Prakash and in the said investigation, the investigating agency
had recorded certain statements which clearly showed the
possibility of the deceased having died in such an attack. This
was admitted by PW-7, the I.O. who had noted in the case-diary
of that case as follows :
"These points were indicated and included
in the file that the dead body was taken to the
hospital himself and declared dead by the M.O."
This entry in the case-diary shows that it is the I.O. who
took the dead-body of Mahavir, the deceased, in this case to the
hospital from the place of incident, and not PWs.1 and 2. This
factor also supports the defence theory. That apart, as noticed
by the High Court a Gandasa was found opposite to the shop of
said Om Prakash by the investigating agency and it is not the
case of the prosecution in this case that these accused carried
any Gandasa, while defence had suggested that the assailants
went to the shop of Om Prakash carrying Gandasa apart from a
gun. Though the trial court has noticed some of the aspects of
the defence case, in our opinion, it did not appreciate it properly
and brushed aside this defence rather lightly which the High
Court has considered in detail and for good reasons has placed
reliance on the same. Bearing in mind these facts of the
prosecution’s case and the suggestion of the defence that the
complaint in question was drafted after due deliberations only
in the morning of 11.6.1988 coupled with the fact that said FIR
reached the jurisdictional Magistrate at 11 a.m. on that day,
strengthens the argument of the defence that the complaint in
question had come into existence much later as stated by the
prosecution.
There is another reason why presence of PWs.1 and 2
becomes suspect on the date of incident in the village Tibi or at
least it indicates that these witnesses are not stating the true
facts. From the evidence of PW-7, the I.O. it is seen that when
he came to know of the injuries suffered by Surendra Singh, he
went to the hospital at about 9 p.m. and recorded his statement;
whereas PWs.1 and 2 state that when they went to the hospital
at 9 p.m. they did not see the I.O. there and injured Surendra
Singh was in an unconscious state, therefore, either the I.O.
who stated that he recorded the statement at 9 p.m. or the
statement of PWs.1 and 2 that they went to the hospital at 9
p.m. is false. Either way, the prosecution has to suffer the
consequence of such contradiction.
The High Court has also relied upon the evidence of PW-
8, the ballistic expert, from whose evidence it is clear that it is
not possible to establish whether the fire-arm used in the attack
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as alleged by the prosecution was the same as was sent to him
for his examination. This is because of the fact that the
investigating agency has not recovered any empties of the
cartridges used in killing the deceased. The ballistic expert’s
evidence in this regard only shows that the injury suffered by
the deceased could have been caused from a 12 bore gun of
similar nature.
From the above discussion, we are satisfied that the
judgment of the High Court is unexceptional, therefore, it does
not call for any interference. Accordingly, the appeal is
dismissed.
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