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2001 DIGILAW 898 (RAJ)

Lal Singh v. State of Rajasthan

2001-05-17

H.R.PANWAR, N.N.MATHUR

body2001
Honble MATHUR, J.–This appeal is directed against the judgment dated 4.11.1997 passed by the Additional Sessions Judge, Barmer, convicting appellant for offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-; in default of payment to further undergo 15 days simple imprisonment. The appellant has also been convicted for offences under Section 7/25 Arms Act and sentenced to under go 1 year rigorous imprisonment and to pay a fine of Rs. 100/-; in default of payment to further undergo 15 days rigorous imprisonment. Both the sentence have been ordered to run concurrently. (2). Briefly stated the prosecution case is that on 2.6.94 at about 11:20 A.M., P.W. 1 Ladu Ram gave a written report Ex.P1 to P.W. 18 Babulal S.H.O., Police Station, Barmer stating inter alia that at about 11:00 A.M., he had gone to see his brother Harlal on the roadways Bus Stand, where he was on duty in the Enquiry Cabin. At that time appellant Lal Singh along with Jai Singh, Veer Singh and Bal Singh were found moving on the Bus Stand. Lal Singh was carrying a weapon like pistol. Har Lal was working in the Cabin. In his front P.W. 2 Mota Ram was standing. Appellant Lal Singh entered in the Cabin and from the rear side, fired the pistol, which hit in the back of Harlal and passed through. Jai Singh, Veer Singh and Bal Singh exhorted appellant Lal Singh to re-fire as the enemy was not killed. They also assured him that nothing wrong will happen to them as Advocate Roop Singh will take care of them. P.W. 3 Narayan Ram approaching to Harlal from the nearby Cabin also witnessed the incident. Lal Singh after firing the shot took heels with Jai Singh, Veer Singh and Bal Singh. He ran towards the house of Roop Singh and entered therein. Other accused persons Jai Singh, Veer Singh and Bal Singh taking advantage of the crowd disappeared. He along with Mota Ram and Narayan along with number of other persons which included Hema Ram, Achla Ram etc. chased Lal Singh and reached at the house of Roop Singh. The police also arrived there. Lal Singh was apprehended in the house of Roop Singh along with pistol. He also stated that all the accused persons hatched a conspiracy to kill Harlal. chased Lal Singh and reached at the house of Roop Singh. The police also arrived there. Lal Singh was apprehended in the house of Roop Singh along with pistol. He also stated that all the accused persons hatched a conspiracy to kill Harlal. They wanted to settle score with Harlal for the murder of one Kan Singh. He also stated that Bhanwara Ram and some other persons took Harlal to the Hospital. On this information police registered a case for offence under Section 307, 120 B I.P.C. and 7/25 Arms Act at about 11:40 A.M. at the Police Station, Barmer and proceeded with investigation. (3). P.W. 20 Narayan Ram a Reserve Sub Inspector, Police posted at Police Line, Barmer, who was in the PWD Office hearing the gun shot fire, chased appellant and entered in the house of Advocate Roop Singh. He apprehended him on the terrace of the house. Thereafter, he took the appellant Lal Singh to the office of the Superintendent of Police. An information was given to the Circle Inspector, Kotwali Barmer on telephone. The appellant was brought to the Police Station at about 12:30 P.M. A formal arrest memo was prepared at the Police Station. On search of the person, a pistol and ten cartridges were recovered from the Bag. The Investigating Officer reached on the spot at about 12:35 P.M. At about 1:00 P.M. Harlal succumbed to the injuries. The police added offence under Section 302 I.P.C. The inquest report was prepared and the dead body was sent for post-mortem. After usual investigation, police laid charge-sheet against the appellant Lal Singh and there others for offence under Section 302 I.P.C. and 7/25 Arms Act. The other three accused persons were discharged by order of the trial court dated 9.2.95. The appellant Lal Singh alone was put to trial on the charge of murder of Harlal. (4). The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 20 witnesses and produced number of documents. In statement under Section 313 of the Code of Criminal Procedure the appellant denied the correctness of the prosecution evidence appearing against him. The learned trial Judge after considering the entire evidence on record accepted the prosecution case and held that appellant guilty of murder of Harlal. Accordingly, he convicted and sentenced him in the manner noticed above. (5). Mr. In statement under Section 313 of the Code of Criminal Procedure the appellant denied the correctness of the prosecution evidence appearing against him. The learned trial Judge after considering the entire evidence on record accepted the prosecution case and held that appellant guilty of murder of Harlal. Accordingly, he convicted and sentenced him in the manner noticed above. (5). Mr. Doonggar Singh learned counsel for the appellant has argued with his usual fairness and clarity but vehemence pointing following outstanding features of the case, which according to him throw sufficient doubt on the entire prosecution case. (i) That the F.I.R. Ex.P1 is a fabricated document, which has been brought into existence long after the occurrence utilising the time for introducing the names of the eye witnesses. (ii) That the F.I.R. was sent to the learned Magistrate after a considerable delay and at the odd time i.e. 11:15 P.M. during night. (iii) In the Arrival and Departure Register of the Buses Ex.P.25A there exists entries in the hand writing of the deceased upto 12:30 noon, which shows that he was alive upto 12:30, falsifying the prosecution case of Harlal being shot at 11:00 A.M. (iv) The recovery of two empty cartridges from the site, makes the statement of the alleged eye witnesses P.W. 1 Ladu Ram, P.W. 2 Mota Ram, P.W. 3 Narayan Ram, P.W. 4 Hema Ram, P.W. 15 Bhanwara Ram false and fabricated as according to them, there was only one pistol fire. (v) P.W. 20 Narayan Ram has been falsely introduced at the last stage of the trial. Police did not record his statement during investigation, as such his name was not shown in the calendar of witnesses. (vi) Number of witnesses like Nimba Ram, who alleged to have apprehended appellant have been deliberately with held by the prosecution. (vii) The witnesses falsely implicated Jai Singh, Veer Singh and Bir Singh. Before dealing with the contentions raised by the learned counsel for the appellant, we may scan the prosecution evidence produced by the prosecution in support of the case. (6). The defence has not disputed homicidal death of Harlal. P.W. 17 Dr. M.M. Purohit has stated that he was one of the members of the Medical Board, which conducted the post-mortem of the dead body of deceased Harlal. (6). The defence has not disputed homicidal death of Harlal. P.W. 17 Dr. M.M. Purohit has stated that he was one of the members of the Medical Board, which conducted the post-mortem of the dead body of deceased Harlal. In his opinion, the cause of death was injuries on spleen, small intestine, omentum, penotonium leading to internal haemorrhage and shock due to bullet injury. The metalic pieces were also removed from the body. All the injuries were ante mortem in nature. He has proved the post-mortem report Ex.P.47. (7). The prosecution has examined P.W. 1 Ladu Ram, P.W. 2 Mota Ram, P.W. 3 Narayna Ram, P.W. 4 Hema Ram and P.W. 15 Bhanwara Ram as eye witnesses. P.W. 1 Ladu Ram is the brother of deceased Harlal. He has stated that Harlal was an employee of the Roadways posted at Barmer. On 2.06.1994 at about 11:00 A.M. Harlal was sitting in the Enquiry Cabin and doing his work at the Bus Stand of the Roadways. Mota Ram was standing in his front. He found Lal Singh, Jai Singh, Veer Singh and Bal Singh moving around the Cabin at the Bus Stand. Lal Singh was carrying a pistol in his hand. Lal Singh fired gun shot from the rear side of the Cabin hitting on the back of Harlal. The bullet passed through the body of Harlal and hit the iron sheet of the cabin. Jai Singh, Veer Singh and Bal Singh exhorted Lal Singh to fire again as the enemy was still alive. They also uttered that Advocate Roop Singh will not permit anything to be done wrong with them. From the adjoining Cabin, Narayan Ram also arrived on the spot. Achla Ram and Hema Ram also arrived. After gun shot fire, Lal Singh ran away, he was being chased by him, Narayan Ram, Mota Ram, Hema Ram, Achla Ram and many others. Appellant Lal Singh entered in the house of Advocate Roop Singh. They surrounded the house of Roop Singh. Lal Singh was caught by the police. He returned to Bus Stand and took Harlal to the Hospital. He was unconscious. After some time, police also arrived there. He submitted a written report to the Circle Inspector. Therefore, the police visited the site. An empty cartridge was also recovered from the spot. After inspection, they returned to the hospital. Harlal succumbed to the injuries. He returned to Bus Stand and took Harlal to the Hospital. He was unconscious. After some time, police also arrived there. He submitted a written report to the Circle Inspector. Therefore, the police visited the site. An empty cartridge was also recovered from the spot. After inspection, they returned to the hospital. Harlal succumbed to the injuries. He also stated that Lal Singh fired the gun at Harlal because of the enmity. There is lengthy cross-examination, but nothing substantial has been elicited to discredit the testimony of this witness. The testimony of this witness is natural and trustworthy. (8). P.W. 2 Mota Ram was also Booking Clerk on the Roadways Bus Stand at the same time. He has stated that he reported for duty at 10:45 A.M. He found Ladu Ram the brother of the deceased Harlal standing. He was talking with Ladu Ram. At that time, Lal Singh, Veer Singh, Jai Singh and Bal Singh arrived. He has given the narration of the incident on the line as given by P.W. 1 Ladu Ram. In the cross-examination, he admitted that he chased Lal Singh instead of taking care of Harlal. There is a lengthy cross- examination, but nothing substantial has been elicited to discredit the testimony of this witness. (9). P.W. 3 Narayan Ram was also a Booking Clerk on the Roadways Bus Stand at Barmer. He has stated that on 2.6.94, he was on duty upto 6:00 to 11:00 A.M. At about 11:00 A.M. when he closed the window and moved towards the Enquiry Booth, where Harlal was on duty, Lal Singh from the rear side of the Cabin fired the gun shot from the pistol and ran towards the hospital. He has also stated that at that time Ladu Ram, Mota Ram and some others were also standing. He also stated that he was not in a position to give the names of the persons, who were with Lal Singh. He has stated that he was at a distance of 10-15 it. About 40-50 persons chased Lal Singh running towards the hospital side. He entered in the house of Roop Singh and claimed on the terrace. At that time, police arrived and he was apprehended. He along with Ladu Ram and others took Harlal to the hospital. Harlal was unconscious. As a result of the injuries Harlal died in the hospital. About 40-50 persons chased Lal Singh running towards the hospital side. He entered in the house of Roop Singh and claimed on the terrace. At that time, police arrived and he was apprehended. He along with Ladu Ram and others took Harlal to the hospital. Harlal was unconscious. As a result of the injuries Harlal died in the hospital. He admitted that his statement was recorded after three days of the incident i.e. on 6.6.94. He also admitted that during this period, he was available in Barmer. Nothing has been elicited to discredit the testimony of this witness. (10). P.W. 4 Hema Ram has stated that in the year 1994, he was in employment of Rajasthan Roadways as Conductor. He was posted at Jhalawar on 2.6.94, he had come to Barmer on leave. On the Bus Stand, he met with Harlal Choudhary. On the way, he met with Achla Ram. He reached at the Bus Stand along with Achla Ram at about 11:00 A.M. He found Harlal Sitting in the Enquiry Booth. While he was at a distance of 10 ft., appellant Lal Singh fired a revolver, which hit on the back of Harlal and passed through. He also stated that along with Lal Singh there were other accused persons also and one of them was Sanwal Singh. He has stated that he had seen Lal Singh about a month back. He also stated that Lal Singh was seen many times along with Swaroop Singh. Nothing substantial has been elicited to discredit the testimony of this witness. (11). P.W. 15 Bhanwara Ram has stated that on 2.6.94, he had gone at his in-laws house at Rawatsar. At about 10:45 he arrived at the Barmer Bus Stand from Rawatsar. He wanted to board the bus bound for Chauhatan. At about 11:00 the bus for Chauhatan was full. Therefore, he went to the Enquiry Booth to inquire about the next bus. He found Lal Singh sitting there along with some other persons. He also stated that he knew Lal Singh as he used to visit village Undwa. He travelled with him many times in bus going to Chauhatan. He also stated that Harlal was sitting on the Enquiry Booth at the Bus Stand. He further stated that from the rear side of the Enquiry Booth, Lal Singh fired a pistol, which hit on the back of Harlal. He travelled with him many times in bus going to Chauhatan. He also stated that Harlal was sitting on the Enquiry Booth at the Bus Stand. He further stated that from the rear side of the Enquiry Booth, Lal Singh fired a pistol, which hit on the back of Harlal. In the cross-examination, he admitted that his statement was recorded about 4-5 days after the incident. He (Bhanwara Ram) stated that he stayed in the hospital upto 1:00 P.M. Nothing substantial has been elicited to discredit the testimony of this witness. (12). P.W. 20 Narayan Ram has stated that on 2.6.94, he was posted in the Police Line at Barmer as Reserve Sub Inspector. At about 10:30 as usual he went to PWD Office in connection with the Government work. At about 11:00 he heard of a gun shot fire from the side of Roadways Bus Stand. A crowd was found running through the hospital gate towards Rai Colony. He was standing in the premises of the PWD Office. He asked one of the persons of the crowd about the incident. He was told that one person has shot fire at the Booking Clerk Harlal. He also joined the crowd. Lal Singh entered in the house of Advocate Roop Singh. He claimed on the terrace. He along with Nimba Ram claimed on the terrace and over powered Lal Singh. He was brought down along with the articles with him. At that time, Crime Assistant Jagdish also arrived. Thereafter, they took Lal Singh to the office of the Superintendent of Police. A country made pistol, ten live cartridges were found in the Bag. There was one empty cartridge in the pistol. In the cross-examination, he stated that he had gone to the Office of the PWD for taking the estimate for over head water tank, which was required to be sent to Jaipur. He stated that he was not required to make entry in Rojnamcha of routine visit out side the Lines. He admitted that the accused was apprehended by him and Nimba Ram. Nothing substantial has been elicited to discredit the testimony of this witness. (13). He stated that he was not required to make entry in Rojnamcha of routine visit out side the Lines. He admitted that the accused was apprehended by him and Nimba Ram. Nothing substantial has been elicited to discredit the testimony of this witness. (13). The defence has examined six witnesses D.W. 1 Dungar Singh, Jailor, District Jail, Barmer, D.W. 2 Krishan Kumar a Clerk in the court of C.J.M., Barmer, D.W. Madan Singh L.C. at City Kotwali, Barmer, D.W. 4 Jhunjhar Singh F.C. in the Office of C.O., City Kotwali, Barmer, D.W. 5 Shanker Lal, Reader, A.C.M. Court, Barmer and P.W. 6 Toga Ram F.C. posted in Police Line, Barmer. The learned counsel during the course of arguments has referred to the statement of D.W. 2 Krishan Kumar only. Therefore, we are not referring to the other defence witnesses. D.W. 2 Krishan Kumar has stated that the endorsement on the F.I.R. Ex.P48 is in his hand writing. He also stated that he did not make the said endorsement at 11:15 P.M. on 2.6.94. He also stated that on 3.6.94 Shri Prem Singh Gahlot, C.J.M. asked him to make the said endorsement on Ex.P.48. He also stated that Shri Prem Singh Gahlot C.J.M. asked him to make the said endorsement as he had received the said F.I.R. at his residence at 11:15 P.M. (14). Except P.W. 1 Ladu Ram who is the brother of the deceased, all other eye witnesses P.W. 2 Mota Ram. P.W. 3 Narayan Ram, P.W. 4 Hema Ram and P.W. 15 Bhanwara Ram are independent witnesses. It is well established law that testimony of the relative of the deceased cannot be discarded only for that reason. In normal course the relation of the deceased are not likely to falsely implicate a person in the incident leading to death of the relation unless there are very strong and cogent reasons to accept valid criticism. We have scrutinised the evidence of all the eye witnesses intrinsically and extrinsically, as in evident from the discussion made in preceding paras, and find that the statements made by them on oath are true and reliable. Their testimony has remained unshaken in the cross-examination. (15). Now, we shall deal with each criticism levelled by the learned counsel. We shall deal with first and third criticism together. Their testimony has remained unshaken in the cross-examination. (15). Now, we shall deal with each criticism levelled by the learned counsel. We shall deal with first and third criticism together. With respect to F.I.R. Ex.P48 being a ante time document, it is submitted that in the Arrival & Departure Register of the Buses, there is an entry showing the arrival of a bus at 12:30 noon. Thus, Har Lal was alive at least upto 12:30 noon but the F.I.R. has been lodged at 11:20 A.M. In this regard a reference may be made to the statement of P.W. 7 Hadwanta Ram. He was Chief Manager of the Barmer Depot at the relevant time. He has admitted the existence of Arrival & Departure Register. Register Ex.P 25A is the extract of Arrival and Departure Register Ex.P25. He admitted the entry A to B in the extract of the Register Ex.P25A with respect to the schedule time in the hand writing of Ashok Kashyap and the departure time in the hand writing of deceased Harlal. He also admitted entry at Column No. 6 the scheduled time shown C to D in Ex.P25A and entries in Column No. 8 E to F of Ex. P25 in the hand writing of Harlal. He also admitted entries at Column No. 6 C to D and in Column No. 8 E to F of Ex. P.25A in the hand writing of deceased Harlal. We have seen the entries. They are in figures and not in words. We have not been able to find any significant distinction between the figures stated to have been written by Ashok Kashyap and the deceased Harlal. Simply on the basis of the statement of P.W. 7 Hadwanta Ram, it cannot be said with certainty that the figures are in the hand writing of deceased Harlal. P.W. 7 Hadwanta Ram has stated that the incident took place on the Bus Stand on 2.6.94 at about 11:00 A.M. He also stated that the entry with respect to the schedule time was made in advance in the Register Ex. P25 by Ashok Kashyap. He has also admitted that his statement was recorded by the police between 12 to 1. He has also stated that he received information about the incident between 11:20- 11:15. He has also stated that he reached on the Bus stand at 11:20. P25 by Ashok Kashyap. He has also admitted that his statement was recorded by the police between 12 to 1. He has also stated that he received information about the incident between 11:20- 11:15. He has also stated that he reached on the Bus stand at 11:20. Thus, because of a doubtful entry in the Register Ex.P25 of 12:30, this witness and the other witnesses cannot be disbelieved. Thus, the criticism is rejected. (16). The second criticism is that the F.I.R. was sent to the learned Magistrate after considerable delay and at the odd time at 11:15 P.M. It is of course true that in a criminal case the F.I.R. is of enormous importance and is generally utilised for counter checks and balances for testing and evaluating the evidence. F.I.R. is also required to be despatched under the statutory provision of Section 154 read with 157 Cr. P.C. promptly to the concern Magistrate. In the instant case the incident is alleged to have taken place at 11:00 A.M. The F.I.R. has been lodged promptly at 11:20 A.M. The police remained busy in investigation for the whole day and immediately at 11:30 P.M. it was submitted before the Chief Judicial Magistrate at his residence. Thus, there is no delay in complying with the provisions of Section 157 Cr.P.C. The defence has produced D.W. 2 Krishan Kumar a Clerk in the court of Chief Judicial Magistrate. He has stated that in the morning courts, Shri Prem Singh Gahlot, Chief Judicial Magistrate handed him over the F.I.R. Ex. P 48 and asked him to make an endorsement that the same was received at 11:15 P.M. at his residence. There is nothing wrong in it. The learned Magistrate received the copy of the F.I.R. at his residence at 11:15 and on opening of the court in the morning handed it over to Reader to make the endorsement. The police could have submitted the F.I.R. on 3rd June 1994 as well in the court itself. Even in that case there would have been no delay. It appears that the investigating Officer never wanted to take a chance and as such in anxiety he submitted a copy of the F.I.R. before the Magistrate on the same day, even at his residence. There is nothing unusual in it. This criticism also deserves to be rejected. (17). Even in that case there would have been no delay. It appears that the investigating Officer never wanted to take a chance and as such in anxiety he submitted a copy of the F.I.R. before the Magistrate on the same day, even at his residence. There is nothing unusual in it. This criticism also deserves to be rejected. (17). Another criticism made by the learned counsel is that the prosecution has not explained the presence of two empty cartridges on the spot. This criticism has no leg to stand as there is no cross-examination from any of the eye witnesses or the Investigating Officer on this aspect. (18). It is vigorously argued that P.W. 20 Narayan Ram has been falsely introduced at the last stage of the trial. It is submitted that the name of Narayan Ram did not find in the calendar of witnesses. It appears that the appellant was apprehended by one Jagdish S.I., Crime Branch and P.W. 20 Narayan Ram, who was Reserve Inspector in the Police Line. The prosecution instead of producing both the witnesses decided to produce only one witness i.e. Jagdish. During the trial the learned Public Prosecutor filed an application stating that since Jagdish has died as such, Narayan Ram may be permitted to be examined. After hearing the arguments of learned counsel for defence and the learned Public Prosecutor, the permission was granted. Thus, there is no substance in this contention as well. (19). The another criticism is that material witness like Nimba Ram etc. have not been produced. It is suffice to say that neither the Narayan Ram nor the Nimba Ram are the eye witnesses of the incident. The prosecution has already examined five eye witnesses and as such it was not obligatory to multiply the witnesses. Thus, there is no substance in this criticism as well. (20). It is lastly argued that the witnesses have falsely implicated Jai Singh, Veer Singh and Bir Singh, but no case was found against them and as such charge-sheet was not filed against them. The police filed charge-sheet against Sanwal Singh, Swaroop Singh and Bhanwar Singh. They were also discharged by the order of the court on 9.2.95. They have been given benefit of doubt. There was some confusion with respect to the identify of said accused persons. However, in case of appellant Lal Singh, he was known to all the ye witnesses. The police filed charge-sheet against Sanwal Singh, Swaroop Singh and Bhanwar Singh. They were also discharged by the order of the court on 9.2.95. They have been given benefit of doubt. There was some confusion with respect to the identify of said accused persons. However, in case of appellant Lal Singh, he was known to all the ye witnesses. All the six witnesses have been cross-examined at length and we have dealt with their statements exhaustively and we do not find any glaring feature in the testimony of these witnesses on the basis of which their statements can be discarded. Thus, all the criticism levelled are rejected. (21). The ocular testimony finds corroboration from the prompt F.I.R., medical evidence and recovery of pistol. As per the ballistic expert report Ex.P61 the recovered pistol has been found to be serviceable regular fire arm. The cartridge recovered has also been found to be fired by ammunition. On stero comparison microscopic examination the ballistic found that the cartridge recovered was filed from the recovered 303 pistol. Thus, there is over whelming evidence on record which leads to the irresistible conclusion that it was the appellant Lal Singh who committed the murder of Harlal in the were hours at a public place i.e. the Roadways Bus Stand, Barmer. (22). Consequently, we find no merit in this appeal and the same is dismissed. The appellant is in Jail, he shall undergo the remaining part of the sentence.