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Rajasthan High Court · body

1989 DIGILAW 562 (RAJ)

KARAM SINGH, SAWAI SINGH v. STATE OF RAJASTHAN

1989-08-07

FAROOQ HASAN, GOPAL KRISHNA SHARMA

body1989
Judgment FAROOQ HASAN, J. ( 1 ) APPELLANTS, Karam Singh and Sawai Singh, we convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and a fine of Rs. 500/- in default of payment of fine to further undergo three months R. I. by the learned Additional Sessions Judge, Beawar by his judgment dated March 8, 1988. They have come up in appeal and challenge their conviction. ( 2 ) BRIEFLY stated the prosecution case is that on a report lodged by Kishan Singh (P. W. 2) at police station Sadar Beawar on 17-8-1987 for an incident of the very day a case was registered for an offence under Section 307 of the Indian Penal Code, against the accused persons including the appellants It was alleged report, that at 9. 30 p. m. on 17-8-87, informant-Kishan Singh went to the house oft his uncle, Jetha Singh, on hearing hue and cry and there found that Jetha Singh, and his son Shrwan Singh were being belaboured by the appellants Amar Singh, Pukhraj and Mahendra Singh were named as eyewitnesses of the incident. After the death of injured, Shrwan Singh dated on 20-8-87 the case was converted for the offence under Section 302 of the Indian Penal Code. After usual investigation, a challan was presented against the appellants alongwith Ladu Singh for the offences mentioned in the charge sheet. Learned Trial Court after framing charges recorded statements of 16 prosecution witnesses. The appellants in their statement under Section 313 of the Criminal Procedure Code denied prosecution allegation levelled against them. Learned Trial Court found only appellants guilty of the offence under Section 302 of the Indian Penal Code and co-accused Ladu Singh was held responsible under Section 325 of the Indian Penal Code for causing injuries on the person of Jetha Singh. ( 3 ) WE have heard Shri Jagdeep Dhankhar learned Advocate on behalf of the appellants and Shri Rizwan Alvi Public Prosecutor for the State. We have perused the record. ( 4 ) ONLY arguments urged by the learned Couil$el for the appellants is that Shrwan Singh (deceased) sustained two injuries on the scalp one on the forehead and the other on the right ear. According to the post mortem report (Ex. We have perused the record. ( 4 ) ONLY arguments urged by the learned Couil$el for the appellants is that Shrwan Singh (deceased) sustained two injuries on the scalp one on the forehead and the other on the right ear. According to the post mortem report (Ex. P. 22), the death of deceased was due to shock as a result of extensive laceration of the brain on account of the multiple fractures of the skull bones because of injuries over the scalp. Thus, taking the aid of autopsy report of the deceased, learned Counsel for the appellants contended that the injuries on scalp were mainly the result of the deceased and that looking to the allegations made by the prosecution in its evidence before the Trial Court it is abundantly clear that the scalp injuries have been inflicted by Ladu Singh and Karan Singh but it has not been explained by the prosecution and there is nothing on record to show that the injuries on scalp inflicted by Ladu Singh was not as a result of fracture sustained on the person of the deceased which subsequently became cause of the death of injured. Learned Counsel for the appellants in these circumstances contended that the appellant (Karam Singh) cannot be held guilty for the offence of Section 302 of the Indian Penal Code and at the most can be convicted under Section 325 of the Indian Penal Code, only for allegedly causing grievous injuries on the person of the deceased. ( 5 ) ON the other hand learned Public Prosecutor contended that in the instant case, there is evidence of the prosecution witnesses on record that Karam Singh inflicted blows on the scalp of the deceased and in this view of the matter learned Trial Court was justified in convicting the appellants under Section 302 of the Indian Penal Code. No other point was canvassed by both the learned Counsel. ( 6 ) WE have considered the point raised and gone through the entire record. ( 7 ) ACCORDING to the F. I. R. (Ex. P. 1) lodged by Kishan Singh after hearing noise the informant went towards the place of incident and there he saw that the accused persons were inflicting lathi blows on the person of Shrwan Singh and Jetha Singh tried to intervene and at that time. ( 7 ) ACCORDING to the F. I. R. (Ex. P. 1) lodged by Kishan Singh after hearing noise the informant went towards the place of incident and there he saw that the accused persons were inflicting lathi blows on the person of Shrwan Singh and Jetha Singh tried to intervene and at that time. Ladu Singh also inflicted blow on his hand (Jetha Singhs) and at that time. Amar Singh and Pukhraj came on the spot and they intervened so as to save the injured persons. It has also seen alleged in the First Information Report that Mahendra Singh has also come at the scene of the occurance and witnessed the incident. But, we may state that the informant (Kishan Singh - P. W. 2) in his statement deposed that he only saw head injury on the person of Shrwan Singh and was not in a position to see as to how many injuries had been inflicted on the person of Shrwan Singh because there was dark night and that he did not see anybody giving beating to Shrwan Singh. From the above narration of facts condensed from the statement of Kishan Singh (P. W. 2, it is explicitly clear that Kishan Singh did not claim himself to be an eye-witnesses of the beating on the person of Shrwan Singh and the prosecution cannot take any help from his evidence with regard to the charge under Section 302 of the Indian Penal Code, against the appellants. ( 8 ) MAHENDRA Singh (P. W. 1) in his statement deposed that while he was going towards the place of incident he saw that Ladu Singh and Karan Singh were inflicting lathi blows on the head of deceased. If this part of the statement of Mahendra Singh is accepted on its face value then it appears that the head injuries on the persons of deceased were inflicted by Ladu Singh and Karan Singh Sonni (P. W. 4) wife of Shrwan Singh (deceased) deposed that her husband, Shrwan Singh was beaten by Karan Singh, Ladu Singh and Sawai Singh, and that Ladu Singh also inflicted blows on the person of deceased Amar Singh, Pukhraj (P. Ws. 6 and 8) who have been named as eye witnesses in the First Information Report turned hostile and they did not support the prosecution, Dakhu (P. W. 7) also turned hositle. 6 and 8) who have been named as eye witnesses in the First Information Report turned hostile and they did not support the prosecution, Dakhu (P. W. 7) also turned hositle. Dakhu had been produced order to support the prosecution version since. She claimed herself to be an eye-witness Jetha Singh (P. W. 9) whereas an injured person and is alleged to have been beaten first by accused persons, also deposed that the appellants and Ladu Singh gave beating to Shrwan Singh (deceased ). ( 9 ) HAVING benefitted by the enlightments derived from the prosecution evidence of it eye witnesses it is thus clear that Shrwan Singh (deceased) was not only beaten by the appellants but also by Ladu Singh. None of the eye-witnesses have given any specific overtact against the appellants. In these circumstances, it cannot be said that the injuries on the scalp of deceased were only caused by the appellants and not by co-accused Ladu Singh, who has not even been charged of the offence under Section 302 of the Indian Penal Code and at the very initial stage it was found that he did not inflict any injury on the person of the deceased and had only inflicted injury on the person of Jetha Singh (injured) nor the evidence at the trial stage came otherwise by implicating Ladu Singh for the beating on the person of the deceased. ( 10 ) AS said earlier, in the autopsy report of the deceased, it has been mentioned that Shrwan Singh died due to shock as a result of extensive laceration of the brain on account of multiple fractures of the skull bones because of injuries over the scalp. It is thus clear that no attempt was ever made to identify the internal injury and further the prosecution could not establish that either or both the external injuries were found on the scalp. It is quite unsafe to on that evidence infer that only one of these two injuries might have been responsible for the death of the deceased, and in that situation the difficulty certainly arises to ascertain as to which of the injuries was caused by the appellants specially when Ladu Singh had also been named as the person to have inflicted blow on the person of the deceased also. In this confronting situation, it is very difficult for us to find out whether the blow given by the appellants were the one which ultimately proved to be fatal. It was essential in the present stage of things to bring home charge of murder of the deceased to the appellants that the lathi blows alleged to have been given by the appellants landed on the head which caused injuries on the scalp of the deceased and that only proved fatal. Since the evidence clearly discloses that the injuries on the person of the deceased was not only caused by the appellants but was also caused by co-accused Ladu Singh. None of the eye-witnesses have deposed that the injury on the scalp has been caused by the appellants-benefit of this infirmity goes to the appellants. In these circumstances this much can only be said that the appellants might have given fatal blow or might have given blow which did not prove fatal. In these circumstances the appellants conviction under Section 302 of the Indian Penal Code was plainly incorrect. However from the evidence on record, the appellants and his companion, Ladu Singh are proved to have common intention to cause grievous hurt. Hence the appellants could be convicted under Section 385 read with Section 34 of the Indian Penal Code. ( 11 ) IN the result we therefore, partly allow this appeal and set aside the conviction of the appellant under Section 302 of the Indian Penal Code, and instead convict them under Section 323 read with Section 34 of the Indian Penal Code and sentence them to undergo three years rigorour imprisonment in respect of the offence proved to have been committed with regard to the murder of the deceased and further we sentence them to pay a fine of Rs. 2,500/- each, in default of payment of fine they shall undergo six months R. I. Out of fine amount imposed upon each of the appellants for their conviction under Sections 325/34 of the Indian Penal Code, if collected, it is directed that 75% of the fine amount be given in equal share to the legal heirs of Shrwan Singh (deceased ). ( 12 ) TO the above extent the impugned judgment is modified. The record alongwith malkharan articles if any be returned to the trial court forthwith. ( 12 ) TO the above extent the impugned judgment is modified. The record alongwith malkharan articles if any be returned to the trial court forthwith. While computing the sentence the accused appellant shall be given the benefit of Section 428 of the Criminal Procedure Code. Appeal Partly allowed.