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Rajasthan High Court · body

1997 DIGILAW 30 (RAJ)

Sohan Singh v. State of Rajasthan

1997-01-06

AMRESH KUMAR SINGH, B.R.ARORA

body1997
Honble SINGH, J. – Heard learned counsel for the appellant and the learned Public Prosecutor and perused the record. (2). This appeal has been filed against the judgment dated 12.1.1993 passed by the learned Additional District and Sessions Judge, Raisinghnagar in Sessions Case No. 52/92 State of Raj. vs Sohan Singh, whereby the appellant has convicted u/s. 302 of the IPC and Sec. 27 of the Indian Arms Act and was sentenced to imprisonment for life and a fine of Rs. 200/- and to undergo further imprisonment for 2 years for default in payment of fine for the offence punishable u/s. 302 of the IPC and to undergo rigorous imprisonment for 3 years and a fine of Rs. 200/- and further rigorous imprisonment for one year for default in payment of fine for the offence punishable u/s. 27 of the Indian Arms Act. (3). The facts of the case may be summarised as below : On 27.5.92 at 10.00 a.m. Mangal Singh gave an oral FIR at the Police Station, Raisinghnagar, about the occurrence which occurred on the previous night intervening 26 & 27.5.1992. According to the FIR given by Mangal Singh on the night in- tervening 26th and 27.5.1992 at about 9.00 p.m. Mangal and his younger brother Jalandhar Singh were sitting with some other villagers at the house of Deva Ram. At that time Mangal Singh and others heard the sound of three gun shots. At about 9.15 p.m. Mangal Singh, Jalandhar Singh, Malkiyat Singh and Dara Singh started from the house of Deva Ram. When they reached the lane adjoining to Gurudwara they saw that Sohan Singh was standing inside the enclosure of the Gurudwara and was abusing Jangir Singh and at that time Sohan Singh was armed with a 12 bore gun. Jalandhar Singh objected to the act of abusing and thereafter Sohan Singh aimed his gun towards Jalandhar Singh and opened fire. Pellets landed on the head of Jalandhar Singh and as a consequence of the injuries Jalandhar Singh fell on the ground and his injuries started bleeding. Mangal Singh, Dara Singh and Malkiyat Singh attended to Jalandhar Singh soon after he fell on the ground and they found that he had died on the spot. They raised the cry to the effect that a man had been killed. Sohan Singh ran away with the gun. Mangal Singh, Dara Singh and Malkiyat Singh attended to Jalandhar Singh soon after he fell on the ground and they found that he had died on the spot. They raised the cry to the effect that a man had been killed. Sohan Singh ran away with the gun. An alarm raised by Mangal Singh and others attracted other villagers who reached the spot and found the body of Jalan- dhar Singh lying at the place where Jalandhar Singh fell after receiving the injuries. On the basis of the FIR lodged by Mangal Singh Police registered the case u/s. 302 of the IPC and Sec. 27 of the Indian Arms Act and commenced investigation. After investigation police submitted a charge sheet u/s. 173 of the Cr.P.C. in the Court of learned Additional Chief Judicial Magistrate, Raisinghnagar who committed the case to the Court of learned Additional District and Sessions Judge, Raisinghnagar, for trial. Sohan Singh was charged u/s. 302 of the I.P.C. and 27 of the Indian Arms Act. He pleaded not guilty to the charges. During trial the prosecution examined Mangal Singh (PW 1), Dara Singh (PW 2), Malkiyat Singh (PW 3), Subhash Chandra Gupta (PW 4), Jangir Singh (PW 5), Ganga Ram (PW 6), Mani Ram (PW 7), Subhash Chandra (PW 8) and Narendra Kumar (PW 9) in support of the prosecution case. Accused Sohan Singh was examined u/s. 313 of the Cr.P.C. He did not produce any evidence in defence. (4). The learned Additional District and Sessions Judge after hearing both the parties and considering the evidence produced by the prosecution held that the prosecution evidence was reliable and it proved beyond reasonable doubt that the accused (Sohan Singh) committed the murder of Jalandhar Singh by causing him gun short injuries with his own licenced gun which was recovered by the Police during investigation. He, therefore, convicted the accused Sohan Singh u/s 302 of the IPC and 27 of the Indian Arms Act and imposed on him sentences mentioned above. (5). The learned counsel for the appellant has submitted that the evidence produced by the prosecution is neither reliable nor sufficient to prove the charges framed against the appellant and, therefore, the appellant should be acquitted of the charges. (5). The learned counsel for the appellant has submitted that the evidence produced by the prosecution is neither reliable nor sufficient to prove the charges framed against the appellant and, therefore, the appellant should be acquitted of the charges. The learned Public Prosecutor has supported the verdict and conviction as well as sentences passed by the learned Additional District and Sessions Judge, Raisinghnagar, and prayed that his appeal should be dismissed. (6). We have carefully considered the rival arguments and the evidence on record. In this case the prosecution has relied on the testimony of three eye-witnesses, namely, Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) who were going with the deceased at the time when the deceased was killed. Out of these three witnesses Dara Singh (PW 2) is a child witness as he was 13 years old on the date of his examination in the trial Court. Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) are related to each other and the learned counsel for the appellant has submitted that the testimony of these three witnesses is not reliable. The prosecution has also relied upon the circumstantial evidence which consists of the recovery of two empty cartridges and the gun which admittedly belong to the appellant and was possessed under a valid licence issued under the Indian Arms Act. The prosecution has tried to prove that two empty cartridges which were recovered by the Police Officer who conducted the investigation were fired with the gun belonging to the appellant. (7). It is not disputed that Jalandhar Singh died an unnatural death on account of the gun shot injuries received by him. Dr. Subhash Chandra Gupta (PW 4) con- ducted the Post-mortem examination of the dead body of Jalandhar Singh and found that there were as many as 18 gun shot injuries on his body and he recovered some pellets from inside the body and prepared the Post-mortem Report Ex.P/4. In the opinion of Dr. Subhash Chandra Gupta (PW 4), Jalandhar Singh died on account of head injuries caused with fire arm. It is also testified by him that the injuries re- ceived by Jalandhar Singh were sufficient in the ordinary course of nature to cause death. In the opinion of Dr. Subhash Chandra Gupta (PW 4), Jalandhar Singh died on account of head injuries caused with fire arm. It is also testified by him that the injuries re- ceived by Jalandhar Singh were sufficient in the ordinary course of nature to cause death. We, therefore, have no doubt in arriving at the conclusion that the prosecution evidence has proved that Jalandhar Singh died due to injuries caused to him with a fire arm and that the injuries received by him were sufficient in the ordinary course of nature to cause death. (8). Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) have been examined by the prosecution to prove that the appellant caused gun shot injuries to Jalandhar Singh when he objected to the giving of abuses to Jangir Singh by the appellant. Jangir Singh (PW 5) has also been examined for the purpose of proving that immediately before the opening of fire the appellant was abusing him. Jangir Singh (PW 5) has given statement to the effect that in the evening at about 5.00 p.m. he went to the house of Sohan Singh to bring wine. He purchased a bottle of wine and tested it. Sohan Singh also took wine. After taking wine Jangir Singh returned to his house. At about 8 p.m. Sohan followed Jangir Singh and asked Jangir Singh to give him wine but Jangir Singh refused to give him more wine. Thereafter Jangir Singh turned out Sohan Singh from his house. At that time Sohan Singh went to his house. After sometime Sohan Singh fired three gun shots and thereafter cries were heard to the effect that a man had been killed. Jangir Singh (PW 5) has admitted that on hearing these cries he opened the door of his house and went to the spot and found that Jalandhar Singh was lying in the middle of the land and blood was coming out of his body and Mangal Singh, Malkiyat Singh and Dara Singh were sanding there and they told him that Jalandhar Singh had been killed by Sohan Singh with a gun. In his cross-examination Jangir Singh (PW 5) has admitted that the occurrence took place in a dark night. In his cross-examination Jangir Singh (PW 5) has admitted that the occurrence took place in a dark night. Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) have given statement to the fact that on the night of occurrence at about 9.00 p.m. when they were sitting with the deceased at the house of Deva Ram they heard the sound of gun fires. After sometime they along with Jalandhar Singh started from their house and when they reached the lane adjoining Gurudwara they saw accused Sohan Singh was abusing Jangir Singh and when Jalandhar Singh objected to it, Sohan Singh opened fire and as a consequence of which Jalandhar Singh received injuries on his head, fell down on ground and died and blood came out of his injuries. The learned counsel for the appellant has submitted that the testimony of these three witnesses is not reliable, firstly, because the story is improbable and secondly, be- cause they are relatives of the deceased Jalandhar Singh. Improbability has been attributed to the version given by the above three eye-witnesses on the ground that the night of occurrence was dark and there was no source of light and, therefore, it was not possible for the eye- witnesses to have seen the assailant and that the entire story as given by the above named three eye-witnesses is improbable and, therefore, unreliable. It is also submitted that the learned counsel for the appellant that in this case it is alleged that the accused-appellant fired gun four times but only two empty cartridges were recovered by the Police Officer who conducted the investigation and it means that the prosecution version is not true. It is also submitted that the learned counsel for the appellant that in this case it is alleged that the accused-appellant fired gun four times but only two empty cartridges were recovered by the Police Officer who conducted the investigation and it means that the prosecution version is not true. It is also submitted by the learned counsel for the appellant that there is discrepancy in the statements of these three witnesses about the distance at which fire was opened by the assailant and the story that the accused-appellant Sohan Singh was standing inside the enclosure of Gurudwara when he opened fire at the deceased does not inspire confidence, in view of the evidence of the Doctor who conducted the Post-mortem examination in as much as the distance according to the alleged eye- witnesses of the occurrence was 13-14 feet but almost all the wounds found on the body of the deceased showed burning which suggest that fire was opened at close quarter and, therefore, the evidence of the alleged eye-witnesses is not in conformity with the evidence of the Doctor and this casts a shadow of doubt on the evidence of the eye-witnesses. Regarding Dara Singh (PW 2) it is submitted that he is a child witness and he could be tutored very easily. (9). The learned counsel for the appellant has further submitted that the recovery of the gun and the recovery of empty cartridges does not connect the accused-appellant with the alleged crime because the prosecution has not produced any evidence to prove that the pellets which were recovered from the body of the deceased were in fact fired with the gun belonging to the accused- appellant and, therefore, neither the evidence of the alleged eye-witnesses nor the evidence relating to recovery of gun and empty cartridges is sufficient to prove the charges framed against the accused-appellant. (10). The learned Public Prosecutor has submitted that the eye- witnesses, namely, Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) knew the accused-appellant very well and, therefore, they could recognise him at the time of occurrence when he was abusing Jangir Singh and therefore the statement of the eye-witnesses produced by the prosecution cannot be discarded on the ground that they could not have recognised the assailant who opened fire at the deceased. Regarding the story that the deceased and the three eye-witnesses, namely, Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) went to the house of Deva Ram who was the father-in-law of Mangal Singh, the learned Public Prosecutor has submitted that there is nothing abnormal in this part of the story because Deva Ram was the father-in-law of Mangal Singh and since Deva Ram had died only 9 days before the occurrence, it was quite natural for Mangal Singh, Dara Singh, Jalandhar Singh and Malkiyat Singh to have gone to the house of Deva Ram. It is also submitted by the learned Public Prosecutor that there was no previous enimity between the eye-witnesses and the accused- appellant and there is absolutely no reason for inferring that the eye-witnesses are speaking a lie with a view to falsely implicate the accused-appellant. The learned Public Prosecutor has further submitted that the recovery of the gun and the empty cartridge supports the prosecution version because on chemical examination it was found that two empty cartridges which were sent to the Forensic Science Laboratory, Jaipur for examination had been fired with the gun belonging to the accused-appellant and it was also found by expert examination that the gun belonging to the accused-appellant had been used. Our attention has been drawn to Ex.P/21 which is the Report of the Forensic Science Laboratory, Jaipur. Report Ex. P/21 shows that the SBBL gun No. 14389-1981 (Bharat Small Arms Ltd.), which was contained in packet `F was a serviceable fire arm and on examination of the barrel residue it was found that it had been fired and two empty cartridges which were sent for examination had been fired with the aforesaid gun. The learned Public Prosecutor has submitted that in the absence of any explanation given by the accused- appellant the recovery of two empty cartridges and the recovery of the gun which was possessed by the accused-appellant under licence supports the prosecution version. (11). The incident according to the prosecution occurred at about 9.15 p.m. it has been admitted by the prosecution witnesses that there was no source of light at the place of occurrence. Regarding the presence of moon-light, Mangal Singh (PW 1), has stated that there was moon-light but other witnesses have not suppor- ted his version in this behalf. (11). The incident according to the prosecution occurred at about 9.15 p.m. it has been admitted by the prosecution witnesses that there was no source of light at the place of occurrence. Regarding the presence of moon-light, Mangal Singh (PW 1), has stated that there was moon-light but other witnesses have not suppor- ted his version in this behalf. Dara Singh (PW 2) has clearly stated that there was darkness and no source of light. Jangir Singh (PW 5) and Malkiyat Singh (PW 3) have also admitted that there was no light at the spot. In view of the admission of Dara Singh (PW 2), Malkiyat Singh (PW 3) and Jangir Singh (PW 5) that there was no light at the place of occurrence when fire was opened at the deceased, the state- ment of Mangal Singh (PW 1) that there was moon-light cannot be said to be true. We, therefore, come to the conclusion that there was no source of light when fire was opened at the deceased. It is, therefore, doubtful whether the assailant was recognised by the three eye-witnesses who have been examined in this case. (12). The prosecution version that Jalandhar Singh was shot dead because he objected to giving of abuses to Jangir Singh (PW 5) by the appellant has not been supported by Jangir Singh (PW 5). The statement of Jangir Singh (PW 5) shows that at about 8 p.m. the appellant went to the house of Jangir Singh and demanded some wine but he was turned out of the house by Jangir Singh. The appellant then start abusing but went to his house and at that time he was unarmed. After sometime the sound of three gun fire was heard by Jangir Singh (PW 5) and that was followed by the raising of alarm to the effect that a man had been killed and when Jangir Singh (PW 5) went out of his house he found that Jalandhar Singh was lying in the land in an injured condition. Jangir Singh (PW 5) has nowhere stated that he was being abused by the appellant just before Jalandhar Singh was shot dead. In view of the statement of Jangir Singh (PW 5) the story that the appellant was abusing Jangir Singh and Jalandhar Singh objected to it and then the appellant opened fire at Jalandhar Singh appears to be open to serious doubt. (13). In view of the statement of Jangir Singh (PW 5) the story that the appellant was abusing Jangir Singh and Jalandhar Singh objected to it and then the appellant opened fire at Jalandhar Singh appears to be open to serious doubt. (13). There are some other circumstances which also show that the evidence given by Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) is not trustworthy. All the three eye- witnesses have deposed that they were not injured when Jalandhar Singh was shot at by the appellant because Jalandhar Singh was few steps ahead of these three witnesses. It was unusual for Jalandhar Singh to have gone ahead of Mangal Singh, Dara Singh and Malkiyat Singh when all the four had started from the house of Deva Ram with a view to go to their house. The only inference which can be drawn in the facts and circumstances of the case is that when Jalandhar Singh was shot dead, he was going alone in the lane and that Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) were not near him. There is another circumstance which makes the prosecution version highly doubtful. It is the circumstance relating to recovery of two empty cartridges. According to the statement of Narendra Kumar Singh (PW 9) who conducted the investigation two empty cartridges were recovered from the places marked by letters C and D in the site plan Ex P/5 both the places marked by letters C and D are in the lane adjoining the wall of Gurudwara. The place shown by the letter `C was towards the east side of the dead body of Jalandhar Singh and the place shown by the letter `D was towards the west side of the dead body of Jalandhar Singh. It has not been explained by the prosecution how these two empty cartridges could be found from the places marked by letters `C and `D in site plan if the assailant who shot at Jalandhar Singh was standing inside the enclosure of the Gurudwara and ran away soon after killing Jalandhar Singh through the gate which in site plan Ex. P.5 is shown to be towards the east side of the Gurudwara building. P.5 is shown to be towards the east side of the Gurudwara building. It is inconceivable that the empty cartridges could reach the places marked by letters `C and `D in the site plan if the appellant was in fact standing inside the enclosure of the Gurudwara and not in the lane in which the dead body of Jalandhar Singh was fo- und. In these circumstances the only inference which can be drawn is that either the recovery of empty cartridges from places marked by letters `C and `D is raise or the story that the appellant was standing inside the enclosure of the Gurudwara when he opened fire at Jalandhar Singh is false. It was for the eye-witnesses, namely, Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) to tell the truth if they were in fact present at the time of occurrence. In view of the circumstances mentioned above they do not appear to be reliable. (14). Another circumstance which deserves notice for the purpose of appreciating the evidence Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) is that according to them the appellant was standing inside the enclosure of the Gurudwara on a platform made of bricks and that platform was about three and half feet high. The wall enclosing the Gurudwara was 6 feet high. The assailant after the occurrence ran away and he must have stepped down from the platform made of bricks on which he was standing when he shot at Jalandhar Singh. Therefore, it was impossible for these three eye-witnesses who were standing in the lane out side the wall to have seen the assailant after the occurrence. They could not know whether the assailant remained present inside the enclosure of the Gurudwara or he ran away. Mangal Singh (PW 1) has deposed that the appellant not only ran away he took away his gun with him. Dara Singh (PW 2) has deposed that the appellant ran away after the occurrence and Malkiyat Singh (PW 3) has also given statement to the fact that Sohan Singh ran away. Since these witnesses were standing in the lane outside the wall of the Gurudwara they could not see the assailant after the occurrence. Dara Singh (PW 2) has deposed that the appellant ran away after the occurrence and Malkiyat Singh (PW 3) has also given statement to the fact that Sohan Singh ran away. Since these witnesses were standing in the lane outside the wall of the Gurudwara they could not see the assailant after the occurrence. Therefore, their statement that the assailant ran away with his gun is obviously false and based on conjecture rather than on their personal knowledge. (15). Another circumstance is relating to the number of shots that were fired on the night of occurrence. Mangal Singh (PW 1) has deposed that when he was sitting at the house of Deva Ram he heard the sound of one gun fire. In his cross-examination he says that sound of three gun fires was heard. According to Dara Singh (PW 2) sound of three gun fires was heard when he was sitting at the house of Deva Ram. It means that in all fire was opened four times. The fact that more than one gun shots have been fired, suggests that Jalandhar Singh was shot dead from close quarters more than once when he was going in the lane and at that time Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3) were not present and they reached the spot after the assailant had already departed from the scene of occurrence. It would not be out of place to mention here that according to Dr. Subhash Chandra Gupta (PW 4) pellets have been recovered from inside the body of the deceased Jalandhar Singh and those pellets had been handed over to the Police by the Doctor but the pellets were not sent to Forensic Science Laboratory, Jaipur for examination nor they were produced during trial. The prosecution has not explained why the pellets recovered from inside the body of the deceased were not sent to the forensic Science Laboratory, Jaipur for examination. We are, therefore, unable to say whether the pellets which were recovered from the body of the deceased were of category LG, MG, SG, SSG or they were very small pellets used by the Ordinance factories which manufacture cartridges for smooth bore guns. The number of pellets of category LG in a single cartridge is very small and a cartridge having pellets of LG category cannot produce 18 injuries on the body of any person. The number of pellets of category LG in a single cartridge is very small and a cartridge having pellets of LG category cannot produce 18 injuries on the body of any person. The fact that there were as many as 18 injuries on the body of Jalandhar Singh and injury Nos. 1,2,3,9,12,13,14, 16 and 17 were caused either by pellets of larger size or by a charge containing a large number of small pellets, shows that if the pellets which were used for killing Jalandhar Singh were of category LG then his injuries could not have been caused by one gun fire. He must have been shot at twice or thrice by using cartridges having LG pellets. The prosecution has deliberately with held the pellets recovered from inside the body of the deceased and in the facts and circumstances of the case with-holding of the pellets by the prosecution makes the prosecution story very doubtful. It is possible that Jalandhar Singh was shot at two or three times and, therefore, sound of three gun fires were heard by the witnesses who have been examined by the prosecution and if it is so, the testimony of the eye-witnesses becomes very doubtful. We, there- fore, do not find it to safe to convict the appellant on the basis of the statements of Mangal Singh (PW 1), Dara Singh (PW 2) and Malkiyat Singh (PW 3). (16). Recovery of gun and empty cartridges is not sufficient to prove the offence of murder against the appellant. The gun was possessed by the appellant under a valid licence issued under the Indian Arms Act. Therefore, the fact that the gun was recovered from the possession of the appellant does not incriminate the appellant in this case. The two empty cartridges which were recovered by Narendra Kumar Singh (PW 9) from places marked as `C and `D in the site plan Ex. P/5 are proved to have been fired with the gun of the appellant. But the prosecution has not explained how these two empty cartridges reached the lane from which they were recovered if the appellant was standing inside the enclosure of the Gurudwara when he opened fire at Jalandhar Singh. P/5 are proved to have been fired with the gun of the appellant. But the prosecution has not explained how these two empty cartridges reached the lane from which they were recovered if the appellant was standing inside the enclosure of the Gurudwara when he opened fire at Jalandhar Singh. It may also be mentioned that according to Malkiyat Singh (PW 3) the Police recovered not only the gun of the appellant but also recovered 35 cartridges in which only one cartridge was a live cartridge. It means that 34 empty cartridges have not been recovered from the po- ssession of the appellant. These 34 cartridges have not been accounted for by the Police Officer who recovered them. In these circumstances it cannot be ruled out that two empty cartridges which have been shown as recovered from the lane in which dead body of Jalandhar Singh was lying were in fact planted there with a view to falsely implicate the appellant. Therefore, in our opinion, the recovery of the gun and the recovery of two empty cartridges does not prove any offence against the accused appellant. (17). For reasons mentioned above this appeal deserves to be allowed and is hereby allowed. The conviction as well as sentences imposed on the appellant by the learned Additional District and Sessions Judge are hereby quashed and set a- side. The appellant Sohan Singh is hereby acquitted of the charges u/s. 302 of the I.P.C. and Sec. 27 of the Indian Arms Act. The appellant is in custody, he shall be released forth-with if he is not wanted in any other case. The order directing the forfeiture of the gun recovered from the appellant is also set aside. The gun shall be returned to the appellant provided he produces a valid licence to possess the same.