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2002 DIGILAW 1425 (RAJ)

Narayan Singh v. State of Rajasthan

2002-08-14

O.P.BISHNOI

body2002
JUDGMENT 1. - This appeal has been filed by Narayan Singh and Bhoor Singh who are brothers and sons of Hindu Singh against a judgment dated 5.4.1991 delivered by the learned Additional Sessions Judge, Bali whereby the accused Bhoor Singh was found guilty under Section 323 and 325 of the IPC. The accused Narayan Singh was found guilty under Section 323 and 325/34 of the IPC. 2. It is not in dispute that on 17.4.82, sometime in the evening, the incident took place. It is also not in dispute that father of the appellants Hindu Singh was fatally wounded and died on the spot during the incident. Further, it is not in dispute that five injuries by sharpedged weapons and 11 injuries by blunt objects, in total 16 injuries were received by the appellant Bhoor Singh during the incident. Narayan Singh received three injuries by sharp-edged weapons and four by blunt objects. An FIR was lodged by PW5 Girdhari Singh allegedly on 17.4.82 at 8.40 PM. On behalf of the appellants, it is argued that the date and timing of the FIR Ex.P/15 was actually anti-dated and no report by Girdhari Singh was filed prior to 19.4.82. The complainant side of this case was challaned in the cross-case under Section 147,148,149,323,324 and 302/34 of the IPC. In this case, the police came to a conclusion, after investigation, that the complainant side was aggressor and consequently an FR was filed. The complainant protested and ultimately on 6.12.82, the learned Magistrate took cognizance against the accused Narayan Singh for the offence under Section 323 of the IPC and against the accused Bhoor Singh, the cognizance was taken for the offences under Section 323 and 325 of the IPC. The allegation was to the effect that DW2 Dhanpal Singh, a brother of the appellants, was also involved in the incident but the story against Dhanpal Singh was not believed and prayer for cognizance was not accepted. Being a cross-case, this case was tried by the said trial court along with the said case filed at the behest of the appellants. 3. It is also not in dispute that in the cross-case, the persons of the complainant side were found guilty under Section 304 Part II read with Section 34 of the IPC and each one was awarded 5 years' RI for the same. 3. It is also not in dispute that in the cross-case, the persons of the complainant side were found guilty under Section 304 Part II read with Section 34 of the IPC and each one was awarded 5 years' RI for the same. It is not in disputes that so far as the conviction part of the judgment of the learned trial court is concerned, the same was maintained by this court on 3.8.2000 while deciding S.B. Criminal Appeal No. 129 of 1991. 4. The contention before the learned trial court was to the effect that the complainant side was the aggressor and they caused the death of Hindu Singh and seriously injured the appellants in the aforesaid manner. However, the learned trial Judge believed that the appellants were aggressors and consequently, they were found guilty for the said offences. For the offence under Section 323 of the IPC, each one of the appellants has been awarded RI for three months. For the offence under Section 325 and 325/34 of the IPC, each one has been awarded RI for six months and a fine of Rs. 100/- and additional RI for 15 days for non- payment of fine. The principal sentences have been ordered to run concurrently. 5. I have gone through the entire record of the case and have heard the learned counsel for the appellants and the learned Public Prosecutor for the State. I find it difficult to concur with the conclusions drawn by the learned trial court. 6. A finding is given to the effect that Smt. Rukma, Smt. Pokari, Girdhari Singh and Suraj Singh received injuries in the incident. The witnesses have deposed to the effect that four injured persons were coming from their agricultural field and were attacked by the appellants and their father, who were waiting for them and in this manner, the said four persons were injured. The learned trial court has lost sight of the fact that in the FIR Ex.P/1 only, Girdhari Singh, Suraj Singh and Smt. Rukma are shown to be returning and it was nowhere alleged that Smt. Pokari was also with them. This is a material contradiction and strikes at the very root of the reliability of the prosecution story. The witnesses have improved in the court and have contradicted in their earlier statements under Section 161 of the Cr.P.C. 7. This is a material contradiction and strikes at the very root of the reliability of the prosecution story. The witnesses have improved in the court and have contradicted in their earlier statements under Section 161 of the Cr.P.C. 7. It is argued by the learned Public Prosecutor for the State that the FIR by Girdhari Singh was lodged earlier and the accused-persons lodged the FIR later and on this account, the learned trial court was justified in drawing the conclusion that due to guilty mind, the appellants side lodged the FIR with delay. I find no merit in this contention. It is highly doubtful that the FIR Ex.P/1 was actually lodged on 17.4.82 at 8.45 PM. There is an overwriting in the time and it appears that the time has been changed from 9.45 to 8.45 PM. Moreover, the formal FIR Ex.P/15 did not reach to the concerned Magistrate prior to 19.4.82 and this provides strength to the defence argument that the FIR was actually lodged on 19.4.82 but was anti-dated in order to help the complainant side. 8. Smt. Pokari did not accompany the other three injured persons and the story that Smt. Pokari received injuries becomes unacceptable and the injuries to Smt. Rukma, Girdhari Singh and Suraj Singh and all by blunt objects and barring one injury to Smt. Rukma, all the injuries to the three Injured persons are minor and simple in nature. On the other hand, it is not in dispute that Hindu Singh died during the incident and the appellants received far more serious injuries than the injuries received by the complainant side. PW12 Dr. N.K. Sharma has specifically stated that there was possibility of death of the appellant Narayan Singh who received grievous injuries on his parietal region. The fact is that the complainant side was weilding the sharp-edged weapons. No sharp-edged weapons were with the appellants, is a circumstance which should have been taken notice by the learned trial court. It will not be out of place to point out here that after investigation, the police came to a conclusion that the complainant side was the aggressor and consequently, an FR was filed. 9. There is no plausible explanation regarding the injuries to the appellants and to Hindu Singh, which casts a serious doubt in respect of the reliability of the prosecution story and the testimony of the prosecution witnesses. 9. There is no plausible explanation regarding the injuries to the appellants and to Hindu Singh, which casts a serious doubt in respect of the reliability of the prosecution story and the testimony of the prosecution witnesses. It will not be out of place to point out here that the persons of the complainant side have been convicted ultimately under Section 304 Part II of the IPC for causing the murder of Hindu Singh. During appeal, it was admitted by the learned counsel that so far as the finding of guilt for the offence under Section 34 Part II of the IPC was concerned, the case was fully proved and there was no scope for challenging the finding. 10. In the totality of circumstances, it cannot be said that the appellants were the aggressors. All the circumstances indicate to the possibility that the appellants and their father were attacked by the complaint side and whatever injuries have been caused by them, were caused in exercise of their right of private defence. 11. Consequently, the appeal is allowed and the impugned judgment dated 5.4.1991 is set aside. The appellants are acquitted of both the charges.Appeal Allowed - Conviction set Aside. *******