LITTA SINGH vs. STATE OF RAJASTHAN

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 805 OF 2009 Litta Singh & Anr. … Appellant(s) versus State of Rajasthan … Respondent(s) J U D G M E N T M.Y. Eqbal, J. The present appeal by special leave arises out of the th judgment and order dated 8 May, 2008 of the High Court of JUDGMENT Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal No. 239 of 2002 whereby the appeal of the appellants herein was dismissed rd upholding the judgment and order dated 23 January, 2002 of the Additional Sessions Judge in Sessions Case No. 16 of 2001 whereby the appellants were convicted under Section 302/34 IPC and sentenced to imprisonment for life and a fine of rupees one thousand 1 Page 1 each and in default in payment of fine to further undergo rigorous imprisonment for one month each in addition. 2. During the pendency of this appeal, appellant No.2 Kalla

3. The case of the prosecution in brief is that complainant th Baltej Singh (PW-1) submitted a written report on 7 February, 2001 (Ex.P/1) in the police station Sadulshahar upon which FIR (Ex. P/17) was drawn and a case under Section 307, 341, 323/34 was registered. It is alleged in the said report Ex.P/1 that to pass time the villagers and complainant and his family members used to sit near the fire during the time of winter and cold in front of house of Mukund Singh. Boga Singh, co-accused was not liking sitting of brother of complainant Hansraj Singh and, therefore, two days before the date JUDGMENT of incident quarrel took place between Hansraj Singh and Boga th Singh. On 7 February, 2001 at about 7.00 p.m., hearing the voice MARO MARO coming from the side of lane in front of the house of Mukund Singh, the complainant, Yadvinder Singh, Mukund Singh and Gurjant Singh ran towards the place from where the voice was coming. There they saw that accused Boga Singh and his two sons Litta Singh and Kalla Singh (appellants herein) were beating 2 Page 2 Hansraj Singh with lathis and gandasi . Kalla Singh had gandasi with him who inflicted injury by gandasi on the head of Hansraj Singh and others gave beating by lathis . The complainant, Mukund Singh,

ran away. The complainant took the victim to the hospital and got him admitted. He lodged report Ex. P/1 in the police station Sadulshahar at 10.00 p.m. on the basis of which FIR No. 29/2001 (Ex.P/17) was registered under Sections 307, 341, 323/34 IPC. The th victim died on 8 February, 2001 during treatment in the hospital on which Section 302 IPC was added. During investigation, site was th inspected on 8 February, 2001 and blood soil and sample soil were collected. All the three accused were arrested. The weapons of offence were also recovered. The seized articles were sent to JUDGMENT Forensic Science Laboratory (FSL) for report. After recording the statements of the witnesses and obtaining opinion of the FSL (report Ex.P/24) and post mortem report (Ex.P/14), the challan was filed against the accused persons under Section 302/34 IPC. The accused denied the charges and sought trial. In support of its case, the prosecution examined as many as nine witnesses out of whom PW-1 Baljet Singh, PW-2 Yadvinder Singh and PW-3 Mukund Singh 3 Page 3 are stated to be eye-witnesses, PW-6 Dr. B.B. Gupta & PW-7 Dr. Manish Ahuja are witnesses regarding treatment of the deceased and post mortem report, PW-8 Chandra Prakash Parick as Investigating

Lakharam & PW-9 Haranarayan are witnesses to prove the recovery/seizure of the articles and sending them to the FSL. Each of the accused denied the incriminating circumstances put to them and stated that they have been falsely implicated. The accused Boga Singh took further stand that the deceased Hansraj Singh had illicit relation with wife of Gurjant Singh and the same being objected by him he has been wrongly implicated in the case of murder. However, none of the accused led any evidence in defence. 4. The following injuries were found on the body of the JUDGMENT deceased on performing post mortem: 1. Incised wound 4 cm x 1/5 cm x bone deep was on left forearm. The bones of lower side were fractured. 2. Incised wound 20 cm x 1/4 cm x skin deep was on the right forearm. 3. Abrasion 5 cm x 1/8 cm on right shoulder. 4. Abrasion 5 cm x 1/8 cm on right shoulder. 5. Abrasion 7 cm x ½ cm was present on the waist. 4 Page 4 6. Abrasion 7 cm x ½ cm was present on the waist. 7. Cyanosed mark with swelling. There was 8 cm abrasion within the injury on left temple which 1 cm x 1 cm on central part.

9. Cyanosed and swelled 6 cm x 8 cm clotted blood was present under the skin on cutting back side of head which was extending from injury No. 7 upto the lower part of injury No. 9. On cutting the bone blood had coagulated which duramatter was in the brain which was in the left parietal region, occipital region and right tempo-parietal region. 10. Cyanosed 10 cm x 1 cm on right knee. 5. According to the doctor (PW-6), all the injuries were ante mortem and the deceased died due to shock and coma arising out of head injury Nos. 7, 8 and 9. Injury Nos. 7 and 8 was the cause of JUDGMENT death in ordinary course of nature. 6. The trial court on the basis of statement of PW-6 made on the basis of post mortem report (Ex.P/14) held that the death of deceased Hansraj Singh was homicidal. As regards credibility of the testimony of eye-witnesses (PW-1, PW-2 and PW-3), the trial court observed (in para 18) that it may be true that the place where all these three witnesses were standing seeing the accused directly from 5 Page 5 there is not at all possible but their statement is that they heard the call MARO MARO and then they rushed there; there may be exaggeration in the statements of PW-1 and PW-2 regarding seeing

deceased and they have made statement of seeing the accused directly that they wanted to give conclusive evidence on this point that they saw accused while assaulting from the very beginning but on the basis of their statement that they have seen the accused from that place where they were standing, on this basis it cannot be agreed that they did not hear the call MARO MARO ; and since there was a call of MARO MARO , therefore all these three witnesses rushed there and they saw that the accused were assaulting the deceased Hansraj Singh, cannot be disbelieved. As regards discrepancies and JUDGMENT shortcomings in the statements, the trial court held (in para 19) that on this ground the entire prosecution case cannot be treated untrue because there is no such case in which such discrepancies of general nature do not exist and the court has to see that how much prosecution evidence is reliable in respect of chief statement of the occurrence. On the argument that PW-1 and PW-2 being close relatives of the deceased their statements cannot be believed, the 6 Page 6 trial court did not accept the same observing that their arrival at the spot of occurrence was natural because they made statement of reaching the place of occurrence on hearing the call of MARO MARO

argument that Gurjant Singh being the eye-witness has not been examined by the prosecution, the trial court held that it is for the prosecution as to which witnesses are to be examined and when the same fact is proved through reliable witness then for corroboration of it on the same point by getting examined more than one witnesses is not required. 7. Ultimately, the trial court held that the accused Litta Singh and Kalla Singh caused fatal injuries to the deceased Hansraj Singh by assaulting him with sickle ( gandasi ) and lathi with the motive of JUDGMENT causing his death as a result of which he died but the fact of any participation of accused Boga Singh in the said offence is not found to be proved beyond reasonable doubt and therefore, giving benefit of the doubt accused Boga Singh was acquitted. The appellants herein were convicted under Section 302/34 IPC and sentenced as stated above. 7 Page 7 8. Aggrieved by the judgment of the trial court, the appellants preferred an appeal before the High Court. The High Court after analyzing the facts of the case and re-appreciating the

trial court and dismissed the appeal. Hence, this appeal by special leave. 9. Mr. Sushil Kumar Jain, learned counsel for the appellants assailed the impugned judgment and order of conviction as being contrary to the facts and evidence on record. Learned counsel firstly submitted that the courts below have erred in placing reliance on the statements of the PW-1 Baltej Singh, PW-2 Yadvinder Singh, PW-3 Mukund Singh, who were ex facie interested witnesses inasmuch as PW-1 and PW-2 are brother and son of the deceased and Mukund JUDGMENT Singh was inimical towards the appellants. Learned counsel submitted that since the statements of these witnesses had been disbelieved qua Boga Singh, the High Court has gravely erred in placing reliance on the statements of these witnesses without any corroboration by independent witnesses. Learned counsel drew our attention to the judgment of the trial court and submitted that the High Court ought to have considered the findings recorded by the trial 8 Page 8 court in para 22 of the judgment. Para 22 of the trial court judgment reads as under:-

JUDGMENT 9 Page 9

10. Learned counsel submitted that the allegation in the FIR made against all the three accused persons and the evidence adduced by the prosecution cannot be segregated. Since one of the JUDGMENT accused Boga Singh has been acquitted, then there is no reason why the appellants may not be acquitted from the charges. Learned counsel further submitted that the genesis of the incident has not been established as to which injuries were fatal. Learned counsel referred the decisions of this Court in the case of Ishwar Singh vs. State of U.P., (1976) 4 SCC 355 and State of U.P. vs. Madan Mohan & Ors., AIR 1989 SC 1519 . Learned counsel submitted that 1 0 Page 10 the non-examination of Gurjant Singh and the persons of the locality is fatal in the instant case as no explanation has been given for their non-examination. Lastly, learned counsel made an alternative

appellants to kill the victim. It may be that because of some dispute and quarrel between the appellants and the victim, the appellants might have tried to teach lesson to the victim and in that they have allegedly inflicted injuries which have caused the death of the victim. And in the said premises, the conviction of the appellant may be altered from Section 302 IPC to Section 304 Part II IPC or at the most under Section 304 Part-I IPC. 11. On the other hand, Dr. Manish Singhvi, learned counsel appearing for the prosecution side submitted that there are direct JUDGMENT evidence in the form of eye-witnesses, namely, PW-2 and PW-3. Learned counsel submitted that the weapons used by the appellants were recovered and blood found on the said weapons. Learned counsel submitted that the head injuries i.e. injury Nos. 7, 8 and 9 are independently sufficient to cause the death. Learned counsel submitted that Gurjant Singh may not be called as best witness but one of the witnesses. Since the evidence of PWs 1, 2 and 3 was 1 1 Page 11 sufficient to establish the case, non-examination of Gurjant Singh is not in any way fatal to the prosecution side. 12. We have carefully examined the evidence adduced by the

basis of which the case was registered against the appellant Boga Singh who has been acquitted in the case. Much stress and emphasis has been given to the word “ MARO MARO ” coming from the side of lane in front of the house of Mukund Singh. Hearing the voice, the accused person alleged to have run towards the place and saw that the accused Boga Singh and his two sons Litta Singh and Kalla Singh were beating the deceased with lathi and gandasi . In the FIR (English translation of the same has been annexed as Annexure P-1), it appears that the informant alleged that when he along with JUDGMENT two others ran in front of the house of Mukund Singh, a loud voice “MARO MARO” was heard. On hearing the turmoil, the complainant and PWs 2 and 3 rushed and saw that the accused persons were assaulting the deceased. When the complainant and PWs 2 and 3 raised commotion, then the accused persons ran away. PW-1, who is the complainant, in his evidence, has deposed otherwise. According to his evidence, there was hue and cry, Boga Singh was 1 2 Page 12 saying “KILL KILL”. Hearing the hue and cry, he went running there and saw that the accused persons were beating the deceased. PW-2 Yadvinder Singh in his deposition has said that on hearing the sound

MARO ”, then they went there and saw that three accused persons were beating his father. When they reached nearby, then these persons fled away. PW-3 Mukund Singh has said that the incident was of about six months before. While he was feeding bread to the dogs, then sound of “ MARO MARO ” reached. He reached there running and saw that the accused persons were beating Hansraj Singh. 13. The trial court proceeded on the basis of written report (Ex. P/1) submitted in the police station wherein the allegation was JUDGMENT that the deceased while coming home from the field at about 7 O’clock and when he reached in the lane in front of the house of Mukund Singh a loud voice “ MARO MARO ” was heard. In the judgment, the word “ MARO MARO ” was described as “ MAR DO MAR DO ”. The trial court further noticed the evidence of PWs 1, 2 and 3 who alleged to have heard the noise “ MARO MARO ”. The trial court recorded its opinion which is quoted hereinbelow:- 1 3 Page 13

JUDGMENT 1 4 Page 14

JUDGMENT 14. However, with regard to the accused Boga Singh, the trial court recorded the reasoning in para 22 of the judgment while acquitting him. 15. Curiously enough, the High Court while narrating the incident as contained in Ex. P/1, has wrongly mentioned that the witnesses have heard the voice “KILL KILL” and hearing the shout, 1 5 Page 15 the witnesses reached the spot and saw the accused persons beating the deceased. 16. The word “ MARO MARO ” can never mean “KILL KILL”.

also means to put some one to death, to murder, to slaughter. On the other hand, the word “ MARO MARO ” means to beat, to cause assault. Here the thin line of distinction lies between the two words. If the voice is “KILL KILL”, it means to cause death of the person and to finish him. Had the intention of the person been to make such call or voice “KILL KILL” and on the basis of such call the accused persons had assaulted the deceased, then the intention would have been clearly to kill and murder the deceased. Here on hearing the call “ MARO MARO ”, the accused persons with Boga Singh started JUDGMENT beating the deceased. 17. Considering the nature of the injury caused to the deceased and the weapons i.e. lathi and gandasi (sickle) used by them, it cannot be ruled out that they assaulted the deceased with the knowledge that the injury may cause death of the person. Moreover, there is no evidence from the side of the prosecution that the accused persons pre-planned to cause death and with that intention they 1 6 Page 16 were waiting for the deceased coming from the field and then with an intention to kill the deceased they assaulted him. 18. It is well settled proposition of law that the intention to

caused, is very important consideration for coming to the conclusion that death is indeed a murder with intention to cause death or the knowledge that death will probably be caused. From the testimonies of the witnesses, it does not reveal that the accused persons intended to cause death and with that intention they started inflicting injuries on the body of the deceased. Even more important aspect is that while they were beating the deceased the witnesses reached the place and shouted whereupon the accused persons immediately ran away instead of inflicting more injuries with intent to kill the deceased. JUDGMENT 19. In the case of Gurdip Singh & Anr. vs. State of Punjab, (1987) 2 SCC 14 , this Court came across a similar type of incident, where the prosecution case was that one Maya Bai had two sons and two brothers. She was the mother of accused Nos. 1 and 2 and sister of accused Nos. 3 and 4. The deceased was one Kishore Singh. The accused suspected that Mayabai had illicit relations with the deceased. Hence one day when the deceased was returning 1 7 Page 17 from village and when he reached the field of Kashmiri Lal, the accused came out of the wheat field. The first appellant had a kirpan and the second appellant had kappa . It was alleged that the four

One of the acquitted accused Jit Singh caught hold of arms of the deceased and the two appellants caused injuries with the weapons in their hands. There was an alarm created by Lachhman Singh, PW-3, which had attracted PW-4 and Mohinder Singh. When they reached the spot, the accused ran away with their weapons. The deceased had seven injuries on his body. Injury No.7 was fatal according to the doctor, who examined him. It was argued that the prosecution had not come forward with true case as to how the incident happened. The trial Judge found two accused Jit Singh and JUDGMENT Teja Singh not guilty, since the case against them was not proved beyond the reasonable doubt. The appellants were convicted because they had weapons with them unlike the acquitted accused. This Court on consideration of the entire evidence did not interfere with the findings that the appellants were responsible for the death of the deceased by attacking him with the weapons in their hands, but on reappraisal of the entire evidence, the Court found it difficult to 1 8 Page 18 agree with the trial court that the appellants were guilty of the offence under Section 302 IPC. Hence, converting the offence under Section 304 Part I, this Court observed:-

20. After analyzing the entire evidence, it is evidently clear JUDGMENT that the occurrence took place suddenly and there was no premeditation on the part of the appellants. There is no evidence that the appellants made special preparation for assaulting the deceased with the intent to kill him. There is no dispute that the appellants assaulted deceased in such a manner that the deceased suffered grievous injuries which was sufficient to cause death, but we 1 9 Page 19 are convinced that the injury was not intended by the appellants to kill the deceased. 21. In the facts and circumstances of the case, in our

IPC as stated above. Although the appellants had no intention to cause death but it can safely be inferred that the appellants knew that such bodily injury was likely to cause death, hence the appellants are guilty of culpable homicide not amounting to murder and are liable to be punished under Section 304 Part II IPC. 22. Accordingly, we modify the judgment of the trial court and the High Court and convert the conviction under Section 302 to 304 Part II IPC, and sentence the appellants to ten years’ imprisonment. The appeal is, therefore, disposed of with the modification in the JUDGMENT conviction and sentence as indicated above. ……………………………..J. (P. Sathasivam) ……………………………..J. (M.Y. Eqbal) New Delhi, April 26, 2013. 2 0 Page 20 JUDGMENT 2 1 Page 21 JUDGMENT Page 22