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2001 DIGILAW 1343 (RAJ)

Swaran Singh v. State of Rajasthan

2001-08-24

JAGAT SINGH, N.N.MATHUR

body2001
Honble SINGH, J.–Accused appellant Swaran Singh has allegedly murdered his own father-in-law Teja Singh at about 9.30 P.M. on 16.5.1977 in the agricultural field by causing blows on the vital parts from iron sabbal. The hue and cry attracted PW-2 Balvindra Singh son of deceased as also PW-1 Hemaram followed by PW-3 Manga Singh and PW-5 Jodgendra Kaur son and wife respectively of the deceased. (2). A written FIR Ex.P/2 was lodged by Balvindra Singh at 11.30 P.M. on 16.5.1997 itself. Accused appellant Swaran Singh was put under arrest at 6.15 P.M. on 17.5.1997. He gave a voluntary disclosure statements Ex.P/24 at 4.00 P.M. on 18.5.1997 and in pursuance thereof got a sabbal recovered vide Ex.P/14 from his residential house on 19.5.1997 which was sealed there and then. (3). After usual investigation accused was challaned and charged for offence of murder by the trial court. Upon his pleading not guilty and claiming trial prosecution examined 9 witnesses and exhibited 24 documents. In statement given under Section 313 Cr.P.C. accused appellant denied all incriminating evidence appearing against him and pleaded that he has been falsely implicated. No evidence in defence was examined. (4). The learned trial court after threadbare discussion of the evidence convicted accused appellant Swaran Singh under Section 302 IPC and sentenced him to life imprisonment alongwith a fine of Rs. 500/- which has been assailed herein. (5). Mr. Kharlia learned counsel for the appellant has taken us through the evidence and tried to impress upon us that it was a blind murder in the night and in the fields while the deceased was asleep and only on the conjectures and surmises accused appellant has been implicated because about half an hour prior to occurrence deceased and the accused appellant had altercation in the field itself and was separated by PW-3 Manga Singh who took the accused to his house. (6). On the contrary learned Public Prosecutor has supported the impugned conviction and sentence. (7). We have carefully considered the rival contentions. (8). The homicidal death of Teja Singh has not been disputed by the learned counsel for the appellant. However, the same has been proved not only by ocular testimony of PW-2 Balvindra Singh, PW-3 Manga Singh and PW-5 Jogendra Kaur who are sons and widow respectively of the deceased. PW-7 Dr. (7). We have carefully considered the rival contentions. (8). The homicidal death of Teja Singh has not been disputed by the learned counsel for the appellant. However, the same has been proved not only by ocular testimony of PW-2 Balvindra Singh, PW-3 Manga Singh and PW-5 Jogendra Kaur who are sons and widow respectively of the deceased. PW-7 Dr. Devilal who conducted autopsy on the dead body and prepared postmortem report Ex.P/16 has found following ante mortem injuries on the dead body:- 1. Bruise with lacerated inct. 33 x 2 on left eye brow, wound 1/4 x 1/4 x 1/4 in it simple blunt. 2. Lacerated wound 2-1/2 x 1 x 1 on left occipital region on culture fractum with laceration of brain detailed beneath it. 3. Lacerated 1 x 1/2 x 1/2 on left side of neck laterally, simple blunt. 4. Lacerated 1 x 1/2 x 1 on skull joint behind and above right ear. Mustoid bone flued detected fractured and brain lacerated beneath it. 5. Bruise with swelling on left fore arm mid region 44 x 9 with fractured both bone. (9). According to PW-7 Dr. Devilal the cause of death was dangerous injuries to brain caused by injuries No.2 and 4 which in ordinary course of nature were sufficient to cause death. (10). The learned counsel for the appellant has assailed the implicity of the accused appellant in the crime. The solitary independent witness PW-1 Hemaram has been declared hostile and has not supported the prosecution story to the slightest. Similarly though iron sabbal, the weapon of offence, allegedly recovered at the in instance of the accused appellant was sealed and sent to the FSL for chemical examination yet without waiting for report of chemical examination the trial have concluded, therefore, this recovery has not connected the accused appellant with the crime. (11). PW-2 Balvindra Singh is the solitary eye witness to the occurrence who has lodged FIR Ex.P/2 immediately after the occurrence. Not only in Ex.P/2 but also in his testimony before the trial court PW-2 Balvindra Singh has stated that the occurrence took place in the field where his father was lying on a cot which was about four bighas from the village. Not only in Ex.P/2 but also in his testimony before the trial court PW-2 Balvindra Singh has stated that the occurrence took place in the field where his father was lying on a cot which was about four bighas from the village. Balvindra Singh has further stated that prior to the occurrence at about 9.00 P.M. his father Teja Singh deceased and accused appellant had altercation in the field because accused appellant was not working to the satisfaction of his father. But PW-3 Manga Singh separated them and took the accused appellant in the village. PW- 2 Balvindra Singh again stated that at about 9.30 P.M. when he came out of his house he saw accused appellant Swaran Singh armed with iron sabbal hurriedly going towards the field, therefore, he also chased him. Balvindra Singh further stated that when he was about one bigha from his father Swaran Singh accused gave 3-4 iron sabbal blows on the head and neck of his father and ran away. Upon raising his hue and cry Hemaram and other persons came on the scene. In the cross-examination Balvindra Singh has admitted that by the time he and Hemaram reached to the place of occurrence his father has died which indicates that in the dark night it was not possible for this witness to have observed one bigha away from the place of occurrence inflicting injuries on the person of the deceased. It seems that this witness on conjectures and surmises has reached to this conclusion that it could be none else than accused Swaran Singh who had quarrelled with the deceased about an hour before the occurrence. (12). Our above inference is fortified by an attested affidavit Ex. D/2 filed by Balvindra Singh in the trial court on 12.2.1998 to the effect that when he reached to the place of occurrence be saw his father lying in injured condition. He has not seen who caused the injuries to his father. It is further mentioned in Ex.D/2 that upon his asking his father told him that somebody having muffled face inflicted injuries to him. Though the contents of affidavit Ex.D/2 have been denied by PW-2 Balvindra Singh, however, signatures on it has been admitted by him. (13). There were material improvements and contradictions in the testimony of PW-2 Balvindra Singh vis-a-vis attested affidavit Ex.D/2 filed by him. Though the contents of affidavit Ex.D/2 have been denied by PW-2 Balvindra Singh, however, signatures on it has been admitted by him. (13). There were material improvements and contradictions in the testimony of PW-2 Balvindra Singh vis-a-vis attested affidavit Ex.D/2 filed by him. There were also interse material contradictions between the testimony of PW-2 Balvindra Singh, PW- 3 Manga Singh and PW-5 Jogendra Kaur which have been conveniently over looked by the trial court. (14). According to PW-2 Balvindra Singh iron sabbal, weapon of offence, was recovered on the next day at 10.00 A.M. when police inspected the place of occurrence whereas according to PW-9 Bhanwar Singh Rathore sabbal was recovered on the third day of the occurrence i.e. 19.5.1977 vide Ex.P/14. (15). According to PW-2 Balvindra Singh he alongwith Hemaram lifted his seriously injured dead father from the ground and put him on the cot and in the process his shirt was blood stained. Though PW-9 Bhanwar Singh Rathore has also admitted in cross- examination that when Balvindra Singh came in the police station to lodge FIR Ex.P/2 he was wearing blood stained clothes, however, he has not seized them. Had worn clothes of Balvindra Singh been stained with blood, the same should have been seized and sealed then and there in order to prove the presence of this witness on the occurrence. It seems that both, PW-2 Balvindra Singh and PW-9 Bhanwar Singh Rathore, were not telling the truth. (16). PW-2 Balvindra Singh has again stated that PW-3 Manga Singh and PW-5 Jogendra Kaur have not told him that Swaran Singh met them in the way. Whereas PW-3 Manga Singh and PW-5 Jogendra Kaur have stated that when they were proceeding towards the place of occurrence Swaran Singh met them in the way and confessed the guilt. Had Swaran Singh made any extra judicial confession to these witnesses the same should have been disclosed by these witnesses to PW-2 Balvindra Singh. It seems that the story of extra judicial confession is falsely fabricated. Our above conclusion is fortified by the testimony of PW-3 Manga Singh and PW-5 Jogendra Kaur because according to Manga Singh Swaran Singh told him that he has killed Teja Singh because the latter has abused him whereas according to PW-5 Jogendra Kaur Swaran Singh told them what for you are going to the field, Teja Singh has been killed. Our above conclusion is fortified by the testimony of PW-3 Manga Singh and PW-5 Jogendra Kaur because according to Manga Singh Swaran Singh told him that he has killed Teja Singh because the latter has abused him whereas according to PW-5 Jogendra Kaur Swaran Singh told them what for you are going to the field, Teja Singh has been killed. There is material contradiction between so called extra judicial confession made by Swaran Singh to these witnesses which also affects the prosecution version adversely. (17). No implicit reliance could be placed on the testimony of PW-2 Balvindra Singh because even taking his testimony as gospel truth he was witnessed the occurrence from a distance of about one bigha. It being a dark night, it is not possible to have seen as to who has inflicted the injuries and by what weapon at what part of the body. He seems to be a chance witness also because admittedly at 9.30 P.M. he was in his house and the accused appellant was also in his own house. It is not possible to have this witness to come out of the house at the same time when accused appellant was also hurriedly going towards the place of occurrence armed with an iron sabbal. Such chances rarely occurs. Had Balvindra Singh seen the accused appellant hurriedly going towards the place of occurrence armed with iron sabbal he should have immediately raised hue and cry attracting the villagers. Similarly, when accused appellant armed with iron sabbal was hurriedly going towards the place of occurrence this witness must have either caught hold of accused or should have allerted his father. (18). There is another anomaly in the prosecution story. According to PW-3 Manga Singh his father must have been taking his meal when attacked by the accused appellant because in the next day morning he took out some pieces of meal from the month of deceased. Whereas according to PW-9 Bhanwar Singh Rathore, Station House Officer, he did not find at the site any left over food. This fact has also not been corroborated by PW-2 Balvindra Singh or PW-5 Jogendra Kaur. (19). Therefore, there were many inconsistencies and deficiencies in the prosecution evidence which the learned trial court has lost sight of. The impugned judgment is based on conjectures and surmises. This fact has also not been corroborated by PW-2 Balvindra Singh or PW-5 Jogendra Kaur. (19). Therefore, there were many inconsistencies and deficiencies in the prosecution evidence which the learned trial court has lost sight of. The impugned judgment is based on conjectures and surmises. The learned trial court has not evaluated the prosecution evidence carefully and with proper perspective and has approached the matter in two pedantic a manner. As a matter of abundant caution we have scanned and scrutinised the prosecution evidence and reappreciated the same. According to us the testimony of PW-2 Balvindra Singh is not of sterling worth and no implicit reliance can be placed upon him. The discrepancies and contradictions in his testimony are material. Had he been present on the site and witnessed the occurrence, he should not have filed attested affidavit Ex.D/2. In our considered view the charges have not been proved beyond reasonable doubt against the accused appellant. He deserves the benefit of doubt. (20). Consequently, we accept this appeal, set aside the conviction and sentence awarded against accused appellant Swaran Singh and acquit him of the charge. He is custody, be released forthwith, if not required in any other matter.